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HomeMy WebLinkAboutCable First Amend Research/aFf` ilr rr I )1r •! ‘1, 1!; A7:5‘Gee 06A- orE-. Sj 0 Ei2fcgo) 2 .,1 (b) Process; seizure without process if incident to lawful arrest or search property subject to forfeiture to the United States under this section may be seized by the Attorney General of the United States upon process issued pursuant to the supplemental rules for certain admiralty and maritime claims by any district court of the United States having jurisdiction over the property, except that seizure without such process may be made if the seizure is incident to a lawful arrest or search. (c) Sale of forfeited property All provisions of law relating to— (1) the seizure, summary and judicial forfeiture, and condemnation of proper- ty for violation of the customs laws; (2) the disposition of such property ,r the proceeds from the sale thereof; (3) the remission or mitigation of such forfeitures; and (4.) the compromise of claims with respect to such forfeitures: shall apply to seizures and forfeiture: incurred. or alleged to have been incurred, under the provisions of this section, insofar ;:s appiicahle and not inconsistent with the provisions of this section, except that such seizures ;till forfeitures shall he limited to the communications device. devices. or romponcnts thereof. (d) i)isposition of forfeited property Whenever property; is forfeited antler this ::idiom, the .1Ltornev (;rner:tl of the United States may fursv:u-tl it to do r',ui,niisraen or <vll .u:v forf(pitud t;roperty which is not harmful to the public. The prix:erds fn,rn ;any SIICII sale shall be deposited in the general fund of the'Freasury r,f the ('cit,•,i States. (June 19, 193.), c. erg. Title \-, § 510, :is, ;aided s. ;a.. , 19,x2. I'nl,. I.. 117-259, Title 1, § 1225, 96 Stat. 1098.) Historical and Statutory Notes Prior 1'rovisioii. A former section 510 of ;his title, Act )one 19, 1934, c. 052. Cafe V, y 510. as added May II, 1962. Pub. I.. 87-448, § 1. 76 Slat. 65, setting forth provisions relating to forfei- tures for violations of rules and regulations be radio stations operating in common carrier. safety and special radio fields, was repealed by Pub. 1.. 95-234, § 4, Feb. 21, 1975, 92 Stat. 35. Legislative history. For legislative history and purpose of I'ub. L. 97-259. see 1982 U.S. Code Cong. and Adm. News. p. 2237. Code of Federal Regulations Amateur radio services, see 47 CFR 97.1 et seq. Asratinn services, see 47 CFR 57.1 et seq. Disaster communications services. sec 47 CFR 99.1 et seq. Stations on Lasad in the maritime services :sett! Alaska—public fixed stations. see 47 CFR 81.1 et seq. Stations on shipboard in the manunie services, ce 47 CFR 83.1 et seq. Library References Forfeitures ' l0. Telecommunications 0445. C.J.S. Forfeitures §§ 8, 9. C.J.S. Telegraphs. Telephones. Radio. and Tele- vision § 104 et seq. ''..R `r-A—C Alil.E COMMUNICATIONS 7 The purposes of this subchapter are to— (1) establish a national policy concerning cable communications; (2) establish franchise procedures and standards which encourage the growth and development of cable systems and which assure that cable systems are responsive to the needs and interests of the local community; (3) establish guidelines for the exercise of 'tierai State, and local authnri v with respect to the regulation of cable systems; PAirr 1 y Review Commentaries C• c television: Local goserntncntai regulation erspective.Jnhn�L=nes•, 7 Pace L.Res. el 1986). es l'::;is•Istt'Ns' • Frescoed communications: 1':camblc to break- up ;F local cable franchising? Sol Schildliause. 7 Pace L. Res. 1 tI156). 11, Note 1 (4) assure that cable communications provide and are encouraged to provide the widest possible diversity of information sources and services to the public; (5) establish an orderly process for franchise renewal which protects cable operators against unfair denials of renewal where the operator's past perform- ance and proposal for future performance meet the standards established by this subchapter; and (6) promote cotnpetition in cable communications and minimize unnecessary regulation that would impose an undue economic burden on cable systems. (June 19, 1934, c. 652, Title VI, § 601, as added Oct. 30, 1934, Pub.L. 98-549, § 2, 98 Stat. 2780.) Historical and Statutory Notes Effective Date. Semon 9(a) of Pub.L. 93-549 provided that: "Except where otherwise expressly provided, the prosisio:s of this Aft [enacting this subchapter and.section 611 of this title, amending sections 152, 224, 309 and 605 of this title, section 2511 of Title 13, Cranes and Criminal Procedure and section 1305 of Title 50, W:tr and National Defense, and enacting provisions set out as notes under this section: and seenon, 543. 605 and 1,09, of this title] and rite amendments made thereby shall take edge( 60 slays after the date of enact- ment of this Act [CM. 30, 19S41.'' Effect of Cable Communications Policy Act 1984 un Jurisdiction of Federal Communication Commission Respecting %Vire or Radio Communi- cations Through Cable Systems. Section 3(b) of Pub.L. 98-549 provided that: "The provisions of this Act (enacting this subchapter and section 611 of this title, amending sections 152, 2224, 309 and 605 of this title. section 2511 of Title 18, Crimes and Criminal Procedure and section 1805 of Title 50, War and National Defense, and enacting pro• visions set out as notes under this section and sections 543, 605 and 609 of this title) and amend- ments made by this Act shall not be construed to affect any jurisdiction the Federal Comrnuntca• lions Commission may have under the Communi- cations Act of 1934 [this chapter) with respect to any communication by wire or radio (other than cable service, as defined in section 002(5) of such Act (section 522(5) of this title)) which is provided through a cable system. or persons or facilities engaged in such communications. - Legislative History. For legislative history and purpose of Pub.L. 98-549, see 1984 U.S. Code Cong. and Adm. News, p: 4655. Cable television: A new challenge for the "old" First Amendment. 60 St. John's L.Rev. 114 (1985). Cable television franchise fees for general reve- nue: The 1984 Cable Act. Wisconsin law, and the First Amendment. \Vis.L.Rev. 1273 (19S5). able television franchise renewa un e law: A powerful alternative for some municipal otlicutis. Neil J. Lehlo, Detroit CUIl.L.Rev. 37 (1958): Contextual regulation of indecency: A Kapp medium for cable television. 21 VaI.U.L.Rev. 193 (1986). Expanding that scarcity rationale: The consti- tutionality of n i sic access requirements in cable franchise agreements. 20 U.N1ich.J.L.i.cf. 503 s 6). Regulating cable television in the 1990s. Nor- man M. Sinel and Paul S. Ryerson, 17 Stetson L.Rev. (Fla.) 607 (1988). . iglus of consumer under the Cable Communi- cations Policy Act of 1984. Patrick B. McCauley and Laurie Orlando, 65 Mich.13.J. 1112 (1986). 'fhr Cable Culhntunicaunns Policy Act of 1934 and content regulation of cable television. Note, 20 NOV England 1..Rcv. 779 (1984-1935). fhe changing regulatory terrain of cable tele- vision. R. Clark \Vadlow and Linda 51. Well - stein. 35 Clth.U.L.Itev. 705 (1986). test • nten mcnt and Cablevuwn: Pre- ferred Communications, Inc. v. City of Los Ange- les. 22 Tulsa L.J. 229 (1986). to stead ca Ic imus, 1'art 11—Interference from the uidcecncy cases' Laurence I1. Winer, V Fordham L.Rev. 459 (March 1987). Library e erences Telecommunications 0449. C.J.S. Telegraphs, Telephones, Radio, and Tele- vision 9§ 316.1, 316.2. Notes of Decisions Purpose of subchapter 2 State regulation or control 1 1. State regulation or control The Federal Communications Commission did not exceed its statutory authority by adopting regulations that establish technical standards to govern the quality of cable ,television signals and that forbid local authorities from imposing more stringent technical standards. City of New York v. F.C.C.. Dist.CoI.1988: 108 S.Ct. 1637. l r si District court lacked subject matter jurisdiction over Cable company's action, seeking declaration t tat Cable Communications Policy Act of 1984 rcempted municipal regulation of cable television r ales; preemption argument operated only as pos- ble defense in city's suit in courts of Common- wealth seeking injunctive and other relief from rate increase. Cablevision of Boston Ltd. Partner- ship ip s•. Flynn, D.Mass.1989, 710 F.Supp. 23. • Cable Communications Policy Act of 1984, hich established a comprehensive regulatory scheme for the cable Industry, preempted Utah Cable Television Programming Decency Act, which gave certain •state officials authority to , ,ring nuisance actions against anyone who contin- uously and knowingly distributed indecent materi- al within the state over any cable television system or pay -for -viewing television programming. Com- munity Television of Utah, Inc. v. Wilkinson, D.C.Utah 1985, 611 F.Supp. 1099. - 7. J ' ' 1-/— 2, Viil'ai/i tizu Note '7 ; • • ' bnildirigs 'had been` damaged," -and' since owner could not unreasonably:interfere with installation of cable television facili- ties in its buildings in the future, owner was not entitled tor coats. of removing system. UA -Columbia -Cablevision .of Westchester, Inc. - v. • -Fraken Builders, ,Inc., 1985, 114 A.D.2d 448, 494 N.Y.S.2d 8. .Posting of bond Television cable company was not re- quired, , under letter__ agreement , with § ,829. Censorshipprohibited,... `,J, • Library'R • Constitutional Law x90.1(9). • • Telecommunications x449. C.J.S. Constitutional Law § 213(19). EXECUTIVE LAW manager of apartment building provid- ing for furnishing of cable television`ser- vices,' to post a $50,000 bond as just compensation for.cost of removing cablee *facilities; agreenient could notform ba- �s�s''of. bond 'commitment as it :was a "access; agreement" which. was void nn= . ' der ,terns 'of statute ' regulating • cable television. Orwell .Management v. New York. State 'Com'n on Cable Television; 1990, _ A:D.2d =, 553 1'.Y.S.2d 362. eferences C.J.S. Telegraphs, Telephones, Radio, and Television §§ 316.1, 316.2. • § 829-a. Subscriber limitation on television reception 1. To the extent technologically feasible, every cable television company shall offer te each of its subscribers a locking program control device which enables the subscriber to limit the reception in the subscriber's residence, of any channel which displays public access programs or for which a specific, optional • 2. Such programimposed. . control devices need only be installed in cases where they are requested by the subscriber. Any subscriber requesting such a device may be charged by the cable television company, on a one-time or recurring basis, no more than fifteen per cent above the actual cost to the company for the manufacture, purchase and installation of such device. 3. Every cable television company shall notify each of its subscribers, in writing,- of the availability of the device described in subdivision one of this section. Such notice shall be printed in prominent type face and shall include information concerning the cost to the subscribers. Such notice may be included with other materials distributed by the company. Notice shall be given to all new subscribers at the time of initial subscription, to each subscriber who requests a change in service, and to all subscribers annually thereafter. (Added L.1983, c. 480, § 1,) • Historical and Statutory Notes Effective Date. Section effective Jan. 1, 1984, pursuant to L.1983, C. 480, § 2. . ' Library References Telecommunications X449. • C.J.S. Telegraphs, Telephones, Radio,. and Television §§ 316.1, 316.2. ,. a r § 830.. Liabiht� for obacenit ' - •'""`� y, defamaho l.an jn n anrY "of � :, ,, ..,?� .: •.�l invasion privacy: -.. , , Library References Libel and Slander X74. . .. ,; • . �'sObscenity P premium charge is im d EXEC Telec C.J.S C.J.S § 831. ' Statu C.J.S Section -d 837 837-e.. 837-f. 837-g. 837-h. 838. 846-h. Privac'. § 835. 9. admit sheri_ tionai of any police : genera 11. necess eligibi� the pa limited and frc lodgin achie provic 12. witnes: service 13. corpora vate 0 brogra PkG- 53r e7 -t efrf Feid (0,47 Fe.d /a.,r ap„,,„:, pv(I) /a4, PI/CA ) (/) Feel z%,01 0 "SLY ;i /zqr & - �O Az/yr J 7U � LG /596 -C- Pye-is-- .4/0--e-4,41,„ 44. Ste. _ j.(A)1.2/ C4/32 ao um �L ,,_ S 9 3 i/C(2(2, i � G��liCQi� _r 7/4 (/7 "ak 0/1- r i'v c e s8s /c c>2-1 �.� `% cetc? 61,/- /av i?a4//5'6P? y 14&-e-.1 SC 4 /y� /Y &,149 7-& ,71 Azii 47' T c c `' c 7 72 VcaUS ,3((/ (/Y ) g.‘ Z._ /a,._ 0.2/0 _C/50 ) e;,1 7-(/ S FR( c 7> w ci/ e-, 1'l eC �sl� cq: >_ RC a4'n ‘t.ytt-d4:1 OIVAt _c4ffj, ' I . 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A ?4`-icl'W • vNP 4Z ✓ e �f 3 c' 3 o f c(() r‘ c) OJ /c. 1).1)) Fcc. • ey- (c -ser i' c eec, c 1- vZ no Zii,- kr-5 6 tik) OC. g‘_ _ (-‘(-) „nd i� IP • 7 -CC / Rc 1,J72 6 -"C (4/.1 %).r Fcc /, �`-Ccll� //O6 7v) CC-------- Pcc_c 33- FCc c2s-V (-iv)) t)i_c,( 36 6 /4 0 04 v) _ r;v14"ok,2,e. iv - fm c?(/ 4/O r/f4j .50 "K":,4 494/ / /j oi Fcc co2-10ee icce /r/Aceo4rie ‘_% -coyir )1e, s 017 _ V C 2 ) PM _ soff me7 7e(e-7 z,zr r cc T c v SSS �� ��- - ��_� �,-- /52>) r, 3, 0•S . .de (, ) vAfa e pro l 4L ,+t _ d vlsi4J reA- c v( -04,7L -r. o 6,„," 2 2 2.'-, r, �1 - 3 02 ----- Shv Ciz6 -h- - -1- . r J � ' /tY e„/‘ 44i L S till 1� 7.7 • c ' i/14 Zci it 7/ -- - ----- ------ ------------ -- - J FRANCHISE AGREEMENT THIS AGREEMENT is made and entered into as of this day of , 1988, by and between the City of Ithaca, New York, a municipal corporation, hereinafter referred to as "City," and American Community Cablevision, a division of American Television and Communications Corporation (hereinafter referred to as "ACC") with its principal place of business at 519 West State Street, Ithaca, New York 14850. WHEREAS, the City is authorized to grant one or more nonexclusive, revocable, franchises to operate and maintain a Cable Communications System with the City; WHEREAS, the City received an application from ACC for renewal of its existing franchise; and WHEREAS, the City, after due evaluation, has determined that. it is in the best interest of the City and its residents to renew the Franchise of ACC for a term as herein provided, NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties do mutually agree as follows: I DEFINITIONS For the purpose of this Franchise 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 singularnumber. The word "shall" is mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. 1.1 ACCESS CHANNELS means channels (6MHz each) set aside for public use, educational use or governmental uses with no charge for usage by ACC. Access channels designed for public use shall be available on a nondiscriminatory basis. 1.2 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 ACC; (b) each person in which ACC has, directly or indirectly, control or a controlling interest; (c) each officer, director, general partner, joint venturer or joint venturee partner, of ACC; and (d) each person, directly or indirectly, controlling, controlled by, or otherwise related to ACC 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; C. Any educational institution acting on its capacity as such, for public, educational, or charitable purposes; or D. Any creditor of ACC 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, ACC. E. Time Inc. or any subsidiary of Time Inc. other than American Television and Communications Corporation. 1.3 BASIC RATE means the rate charged for the lowest priced tier of service which at a minimum shall offer twelve channels including the delivery of broadcast channels, one access- channel and FM service. 1.4 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 other services which may include two-way services on the subscriber network 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. Cable Communications System also includes any institutional network. 1.5 CITY means the City of Ithaca, New York. 1.6 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. -2- 1.7 COMMON COUNCIL means the mayor and aldermen of the City of Ithaca. 1.8 COMMUNICATIONS POLICY ACT or CABLE ACT means the Cable Communications Policy Act of 1984 as it may be amended or succeeded. 1.9 COMPLAINT means that a subscriber or user informs ACC or the City, that a problem has been brought to the attention of ACC, but is unresolved to the satisfaction of the subscriber. 1.10 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. 1.11 DROP shall mean a connection from feeder cable to the subscriber/user television set, radio or other terminal. 1.12 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. 1.13 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. 1.14 FCC means the Federal Communications Commission and any legally appointed or elected successor. 1.15 FRANCHISE means this Franchise contract and any mutually agreed to additions or deletions therefrom. 1.16 FRANCHISE AREA means the entire City. 1.17 FRANCHISE FEE means the percentage, as specified in this Franchise agreement, of ACC's gross annual revenues earned from all sources within the City payable in exchange for the rights granted pursuant to the Franchise. 1.18 GROSS CITY REVENUES means all revenue derived directly or indirectly by the Grantee and by Grantee's affiliates from services provided within the City via the Cable Communications System. 1.19 INSTALLATION shall mean the connection of the system from feeder cable to subscribers' terminals. -3- 1.20 INSTITUTIONAL NETWORK means a separate cable within the cable communications system which can be used to transmit video, audio and data signals in two directions. 1.21 INSTITUTIONAL SERVICE means such video, audio, data and other services provided to institutional users. These may include, but are not limited to, one-way video, two-way video, audio or digital signals. 1.22 LOCAL ORIGINATION means programming produced or purchased by ACC (e.q., advertisements, news, programming with advertising) which is under the control of ACC. Local origination is specifically not to be construed as public, governmental or educational access. 1.23 LOCAL ORIGINATION CHANNEL means any channel designated for local origination. This channel may be used for commercial purposes. 1.24 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 visualor electronic means, for any purpose whatsoever. 1.25 PERSON means an individual, partnership, association, organization, corporation or any lawful successor Transferee of said individual, partnership, association or corporation. 1.26 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 ACC to the use thereof for the purpose of installing and maintaining the Cable 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 ACC 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. 1.27 REASONABLE NOTICE shall be written notice addressed by either party at its principal office within the City or such other office as ACC 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. -4- 1.28 RESIDENT means any person residing in the City as otherwise defined by applicable law. 1.29 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. 1.30 SALE shall include any sale, exchange or barter. 1.31 SCHOOL means any public or nonprofit educational institution including primary and secondary schools, colleges and universities, both public and private. 1.32 SERVICE AREA means the entire geographic area within the Franchise Area. 1.33 SERVICE REQUEST means a request from the subscriber for a technical service, such as installation,adjustment for poor picture quality and converter repair. 1.34 STATE means the state of New York. 1.35 SUBSCRIBER means any person, firm, corporation or other entity who or which elects to subscribe to, for any purpose, a service provided by ACC by means of or in connection with a Cable Communications System. 1.36 TRANSFER means the disposal by ACC, 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 groups of persons acting in concert. 1.37 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. II GRANT OF FRANCHISE 2.1 ACC is hereby granted for itself and its successors and assignees, subject to the terms and conditions of this Franchise, the right, privilege, and authority to operate and maintain a Cable Communications System within the streets, alleys, and public ways of the City. ACC shall provide a modern, state-of- the-art Cable Communications System to the residents and institutions of the City in accordance with this Franchise. -5- 2.2 For the purpose of operating and maintaining a Cable Communications System in the City, ACC may erect, install, extend, repair, replace, and retain in, on, over, under, or upon, across and along the public streets, alleys, 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 and appurtenant to the operation of the Cable Communications System in conformance with the City's specifications. Prior to any extension, relocation, or alteration, however, ACC shall file plans with the appropriate City agencies and utility companies and receive written approval before proceeding. 2.3 Nothing in this 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. III RIGHT OF CITY TO ISSUE FRANCHISE 3.1 ACC acknowledges and accepts the legal right of the - City to issue and maintain a Franchise. 3.2 No Cable Communications System shall be allowed to occupy or use the streets of the City or be allowed to operate without a Franchise. IV FRANCHISE NONEXCLUSIVE 4.1 This Franchise shall not be construed as any limitation upon the right of the City to grant to other persons rights, privileges, or authorities similar to the rights, privileges, and authorities hereinset forth, in the same or other streets, alleys, or other public ways or public places. The City specifically reserves the right to grant at any time during the term of this agreement or renewal thereof, if any, such additional franchises for a Cable Communications System as it deems appropriate. If any franchise is granted on terms more favorable to grantee thereof than those contained herein then ACC shall have the right to comply with all the terms of such other franchise, to the extent applicable, in lieu of compliance herewith. V EFFECTIVE DATE OF FRANCHISE; EFFECT UPON EXISTING FRANCHISE 5.1 The effective date of the Franchise shall be January 20, 1988, and, immediately upon the taking effect of this Franchise, the prior Franchise granted to ACC, on , by the passage of Ordinance No. . shall be superseded and of no further force and effect; provided, however, that vested rights relating to billings and the City's rights to accrued Franchise fees shall not be affected thereby; and provided, further, that any criminal proceedings commenced under or pursuant to said Franchise shall in no manner be affected. VI TERM 6.1 The City will request, along with ACC, that the New York State Commission on Cable Television waive its rules and permit the City to grant ACC a franchise for 15 years. If such request is not granted, the term will be ten years and the other terms of this Franchise will not be affected. Such term shall be subject to sooner termination as provided in this Franchise at which time this Franchise shall expire and be of no further force and effect. The term of the Franchise shall be for a period of 15 years, or such shorter term as approved by the State Commission on Cable Television, from the date of issuance of a Certificate of Confirmation of this Franchise by the New York State Commission on Cable Television, unless sooner terminated as provided herein at which time it shall expire and be of no further force and effect. VII FRANCHISE RENEWAL 7.1 Upon completion of the term of this Franchise the City may grant or deny renewal of this Franchise of ACC in accordance with the provisions of the Cable Act and any other applicable federal, state and local laws. VIII SERVICE AREA 8.1 ACC shall offer full cable communications service to all residents in the Franchise Area, which shall be the corporate limits of the City of Ithaca, including all territory thereafter annexed to the City. -7- 8.2 ACC 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. IX USE OF STREETS AND PUBLIC GROUNDS 9.1 In exercising rights pursuant hereto, ACC 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 this 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, avenue, and highways of the City, as shall in the opinion of the Common Council be necessary in the public interest. 9.2 Nothing in 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, ACC 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. 9.3 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 ACC. 9.4 The City shall have the power at any time to order and require ACC 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 ACC, after notice, fails or refuses to act within -8- a reasonable time, the City shall have power to remove or relocate the same at the sole cost and expense of ACC. 9.5 Upon termination of the Franchise by passage of tirne or otherwise, and unless ACC transfers the Cable Communications System to a subsequent franchise approved by the Common Council, ACC shall remove its supporting structures, poles, transmission and distribution systems, and all other appurtenances from the" Streets and Public Grounds and shall restore those 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 ACC's expense less any recoverable salvage value. X DESIGN AND CONSTRUCTION PROVISIONS 10.1 ACC 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 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 approvaland under the supervision of the City pursuant to local regulation, provided, however, ACC shall not have a vested interest in such location; and such construction shall be removed by ACC 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. 10.2 ACC 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 requested for 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. 10.3 ACC 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. ACC shall promptly repair or replace all private property, both real and personal, damaged or destroyed as a result of the construction, -9- installation, operation or maintenance of the Cable Communications Systems at is sole cost and expense. 10.4 ACC 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. 10.5 ACC 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. 10.6 In all areas of the City where cables, wires and other like facilities of the telephone and electric utilities are already underground, ACC must also place its facilities. underground to the extent practicable. 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, ACC 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). 10.7 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 ACC and these charges shall be paid within sixty (60) days of receipt of notice, or the City may foreclose on performance bonds or invoke other appropriate sanctions provided for in this Franchise. 10.8 ACC 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 ACC shall have the authority to require such payment in advance. ACC 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 ACC. 10.9 The City does not guarantee the accuracy of any maps showing the horizontal or vertical location of existing structures. In public -rights -of -ways, where necessary, the location shall be verified by excavation. -10- 10.10 ACC 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. 10.11 The construction, installation, operation, maintenance and/or removal of the Cable Communication 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 Utility Construction Requirements All Building and Zoning Codes, and all Land Use Restrictions as the Same Exist or may be Amended Hereafter. 10.12 All contractors or subcontractors of ACC must be properly licensed under all applicable federal, state and local laws and regulation. ACC shall be responsible for all acts or omissions of any such contractor or subcontractor in the construction, installation, maintenance or operation of ACC's Cable Communications System. 10.13 CONSTRUCTION PLAN APPROVAL. A. Prior to the erection or installation by ACC 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 Franchise, ACC 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. B. For the rebuild ACC shall allow a City selected engineer to inspect such information, maps and plans for five business days in ACC's office. Prior to the five days, ACC shall give the City thirty (30) days prior notice that such information will be available. ACC shall accommodate reasonable scheduling modifications. If ACC makes a material -11- 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. ACC's office. C. 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 therefor has been received from the City pursuant to local regulation provided that such approval shall not be unreasonably withheld. D. ACC will develop a plan for cutover of the rebuild system which will include the activation of the new system prior to cutover and a minimal disruption to customer service. 10.14 ERECTION, REMOVAL AND COMMON USE OF POLES. A. No poles shall be erected by ACC 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 ACC shall give rise to a vested interest and such poles or structures shall be removed or modified by ACC at its own expense whenever the City determines that the public convenience would be enhanced thereby. ACC shall utilize existing poles and conduits where possible. B. Where poles already exist for use in serving the City and are available for use by ACC, but it does not make arrangement for such use, the City may require ACC 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 ACC 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 ACC, but agreement thereof with ACC cannot be reached, the City may require ACC 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 ACC's operation. 10.15 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 Franchise and to make such tests as it shall deem necessary to ensure compliance with the terms of this Franchise and all other applicable law. ACC shall cooperate fully with the City during all .inspections and -12- tests and shall provide access to all equipment records, and other materials and information necessary for such inspections and. tests. 10.16 CONSTRUCTION REPORTING REQUIREMENTS. A. Within thirty (30) days of the granting of this Franchise, ACC shall have applied for any necessary agreements, licenses or certifications and 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. 10.17 All work involved in construction, installation, maintenance, and repair of the Cable Communications System shall be performed in a safe and reliable manner. Any construction, extension or installation performed pursuant to this Franchise. shall be in conformance with all applicable federal, state and local laws, codes and regulations. ACC shall at all times comply with the standards set forth in the "American Television and Communications Corporation Construction Specifications and Practices" (attached hereto as Appendix [A] and incorporated by reference), in addition to the National Electrical Safety Code, the National Electrical Code, the Bell System Code of Pole Line Construction, and the National Cable Television Association Code of Construction Practice. ACC shall file requests for all necessary operating authorizations and permits with the New York Commission on Cable Television, utilities, and the Federal Communications Commission no later than sixty (60) days from the date the franchise is awarded. The Cable Communications System shall be completed by March 1, 1989. 10.18 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 this Franchise. Should performance prove defective, the defect shall be appropriately remedied. The costs of such test shall be borne solely by ACC. XI MAINTENANCE AND INSPECTION 11.1 ACC 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 this Franchise. 11.2 Except where there exists an emergency situation necessitating a more expeditious procedure, ACC may interrupt -13- service for the purpose of repairing the Cable Communications System only during periods of minimum use. 11.3 Radiation monitoring shall be conducted on an ongoing basis. The results of said monitoring shall be made available to the City upon request. 11.4 ACC shall perform all system tests and maintenance procedures as required by the Cable Ordinance and in accordance with tests and procedures as specified by the FCC, New York State Commission on Cable Television, and the National Cable Television Association's (NCTA) testing procedures. The NCTA testing manual is attached hereto as Appendix [B] and incorporated by reference. XII SYSTEM DESIGN AND CAPACITY 12.1 ACC shall operate and maintain in the City of Ithaca a Cable Communications System spaced to permit a minimum of 450 MHz operation, capable of using state-of-the-art converters. In constructing, operating and maintaining the system, ACC shall at all times comply with applicable laws, construction standards, safety codes, government requirements and FCC technical standards. 12.2 Equipment used for the distribution system, headend and reception facilities shall be of good and durable quality and be serviced and repaired on a regular basis. Any substitution or changes in hardware components must be of good and durable quality (e.g., amplifiers, cable, antennas). XIII SYSTEM SERVICES 13.1 The basic cable service shall have a minimum of 12 (6Mhz) channels. If the Basic has only 12 channels, one channel shall be designated for public access. If the basic service has more than 12 channels, all access channels will be provided on basic. 13.2 ACC shall maintain, at a minimum, the mix, quality, and level of programming set forth in Appendix [C], attached hereto' and incorporated by reference. 13.3 ACC will provide the stereo signal for the premium service channels and broadcast stations which broadcast in stereo. Additionally, a customer may elect to receive premium and other selected channels via FM stereo service. -14- 13.4 ACC shall provide free cable drops to locations already provided with free drops, and at any City designated locations in any new or renovated public, educational or public service offices or buildings designated by the City at the time of the rebuild up to a maximum of 50. After the rebuild, ACC shall provide additional drops as specified by the City at the time of building construction or renovation of existing or new public, educational or public service offices or buildings designated by the City. The City shall provide ACC with reasonable notice of such construction and renovation. The first tier of service, closed circuit channels, institutional, and applicable two-way channels shall be provided free of charge to all of these locations. 13.5 All closed -captioned programming retransmitted by the system shall include the closed -caption signal. 13.6 ACC will make VCR connections available to customers and will provide training in the proper use of VCRs in connection with the cable system and equipment. XIV ' ACCESS CHANNELS AND SERVICES 14.1 In order to develop and promote public, educational and governmental access programming for the system's access channels and institutional services, ACC hereby agrees to provide the following: A. (1) Nine downstream channels shall be designated for public, governmental, and educational access. The access channels shall be available for use by New York State, local governments, educational institutions, or members of the general public for education and public service programming, municipal services and local expression. (2) The public, governmental, and educational access channels shall be available on a first-come, first- served basis at no charge to any individual, association, or organization desiring to utilize them. (3) Any PEG access channels unused by the City three years after the rebuild is complete shall revert to ACC, provided that if community needs subsequently require the use of any such channel, ACC will return said channel to the City six (6) months after receiving written notice if ACC has a use for the channel and immediately if there is no use for the channel. B. Upon the request of the City, ACC shall interconnect the access channels of the Cable Communications System with neighboring cable systems in Tompkins County. -15- C. EQUIPMENT (1) Local Programming Equipment. In instances, as set forth in Appendix [D], where the use of local origination equipment is shared with access, this equipment shall be made available to access users free of charge at such times as the facilities are open and where the equipment is not being utilized for local origination productions. All local programming equipment shall remain the property of ACC but shall be made available for access use by the City of Ithaca, local institutions and residents and surrounding ACC System residents. (2) Public, Governmental and Educational Access Equipment. New public, governmental and educational access equipment (PEG) with a purchase value of $165,000 shall be purchased by ACC for additions to existing access equipment inventory listed in Appendix [E]. ACC shall prepare an equipment purchase list for City approval within sixty (60) days of the receipt of the Franchise. All equipment purchased shall be new and shall be purchased and installed by March 1, 1989. (3) Access Equipment Ownership and Availability. All access equipment shall remain the property of ACC but shall be made available for access use by the City of Ithaca, local institutions and residents and surrounding ACC system residents. On an average annual basis ACC has agreed to provide 2% of Gross City Revenues for capital PEG access equipment replacement and expansion. Any future access equipment replacement and expansion commitments that are made by ACC to municipalities served by the same headend as the City of Ithaca, will be deducted to a floor of one percent of gross City revenues. All access equipment shall be available to access users on a first priority basis before local origination users. (4) Equipment Maintenance. PEG, municipal access and local origination equipment will be maintained and/or replaced by ACC in a manner consistent with good operating practice. Maintenance of that equipment will be done on site, or at any ACC facility, or at a manufacturer's repair facility in a reasonable timely manner. D. ACC shall maintain in its local programming studios in the City of Ithaca the equipment specified in (B) above. -16- ACC shall adopt business hours which shall provide for the use of the studio at a minimum of sixty (60) hours a week between the hours of 9 a.m. and 11 p.m., including some evening hours and some hours on Saturdays. ACC shall offer additional weekday or weekend hours as community needs dictate. 14.2 • ACC shall establish rules to insure that the studio(s) and portable equipment are available equitably to the governmental, educational and public sectors. Rules for public access should assure the availability of the studio(s) and portable equipment on a first-come, first-served basis. Any changes to current access rules shall be established by ACC within three months of the Franchise award, and ACC shall file those rules with the New York State Commission on Cable Television. Any further changes thereafter shall also be filed with the New York State Commission on Cable Television. Such rules shall at all times include the following provisions. A. Procedures for scheduling the use of television production equipment and for scheduling the cablecasting of programming on the channel(s) designated for the purposes enumerated in paragraph A above;* B. Procedures for registering and resolving complaints regarding channel availability, priorities and usage. 14.3 ADDITIONAL ACCESS REQUIREMENTS. The following requirements shall also apply to access. use: A. Channel time shall be available on a first come, first serve nondiscriminatory basis, except as provided in the rules of the New York State Commission on Cable Television; B. No charges shall be paid for the use of production equipment facilities and personnel; C. Records shall be maintained of the use of the designated television channels, including the names and addresses of persons and organizations providing programming for such channels; such record shall be available locally for public inspection and retained for a minimum of two years; D. Designated channels shall not be used for the promotion or sale of commercial products or services, including advertising by or on behalf of candidates for public office. 14.4 ACC shall provide adequate programming and technical staffing for the maintenance and operation of the access channels, facilities, studio and equipment, and the provision of -17- access services as required in the franchise and as contained in the franchise proposal. ACC shall provide, at a minimum, two full-time access staff people at the time of the Franchise award, and an additional full-time access staff person at the completion of the rebuild (no later than March 1, 1989), and a fourth full- time access staff person at the beginning of year five of the Franchise, and a fifth full-time staff person at the beginning of year ten of the Franchise. ACC shall have the right to petition the Cable Commission in 1991 and 1996 to have the requirement to employ the fourth and/or fifth access staff person waived, which waiver shall not be granted in any event if community needs support the position. 14.5 ACC shall provide adequate training for access users free of charge. At a minimum, ACC shall provide monthly access production and editing training classes, provided that community interest of five or more residents in any given month exists. At no time will a resident be requested to wait over two months for training. The two training classes will each be approximately nine hours in duration. 14.6 ACC, at a minimum, shall provide each suh,;criber information on the ' availability of the access channels, production equipment, training and ACC's address and telephone number on a regular basis. Access programs shall be announced in the cable guide based on reasonable rules for timely submissions. ACC will also advertise programs and access services in newspapers of local circulation. ACC shall conduct facility tours and maintain a speaker's bureau to provide informational presentations to local organizations and institutions. Additional outreach activities will be conducted as described in ACC's proposal. ACC shall ensure the development and propagation of public, governmental and educational access as a vital community resource. 14.7 ACC will cablecast the monthly Common Council meetings and not less than two (2) of the five (5) Standing Committees of Council meetings on a rotating monthly basis. 14.8 ACC shall provide access users with the following access damage waiver policy for negligent damage to equipment. Negligent damage shall not include ordinary wear and tear, and mechanical breakdown through causes not the fault of the operator. A. An annual payment of $15 will reduce the volunteer's total liability for equipment damage and repair to $250 for each individual use of the equipment. Such annual payment may be increased by ACC consistent with increases in the Consumer Price Index. -18- B. An annual payment of $25 will reduce the volunteer's total liability for equipment damage and repair to $125 for each individual use. Such annual payment may be increased by ACC consistent with increases in the Consumer Price Index. C. ACC may require access users who do not elect the damage waiver policy to be fully liable for damage to equipment. 14.9 ACC shall support the creation and maintenance of an Access Advisory Board, to consist of nine (9) members: three (3) City residents (two to be appointed by the City, one to be appointed by ACC), two (2) non -City residents (one to be appointed by the City, one to be appointed by ACC), two (2) representatives of institutional access users. (both to be appointed by the City), and one (1) ACC representative and one (1) City representative. The ACC representative and City representative will be non-voting members. The City Cable Commission shall designate one of the members of .the Advisory Board to serve as Chair. The Board shall schedule regular meetings as it deems appropriate. Four (4) members shall constitute a quorum. The Advisory.Board shall report regularly to the City Cable Commission. If at any time the City Cable Comimission determines that the Advisory Board is no longer effective or necessary, the Cable Commission may dissolve the Board and its duties and responsibilities shall revert to the City Cable Commission. The Adivosry Board shall review and monitor all access policies and procedures but will remain advisory in nature. ACC shall consult with the Advisory Board on the purchase of equipment, the studio hours available for access users, and access rules. ACC shall provide quarterly reports to the Board on the purchase and maintenance of equipment, the schedules of access staff, and the use of studio time. XV INSTITUTIONAL NETWORK 15.1 ACC will construct and maintain a midsplit 300 megahertz institutional network that will connect the following buildings: City Hall, Cornell University, Ithaca College, Tompkins County Library, Ithaca High School, Boynton Junior High School, The Alternative School, Ithaca Youth Bureau, GIAC, Police Headquarters, Central Fire and the Bus Garage. The I -net shall be capable of being interconnected at the headend to the subscriber network. ACC will provide the City with eight upstream and eight downstream channels, free drops and necessary video converters to all aforementioned locations at no charge for the duration of the Franchise. For purposes of this section, an upstream channel shall be a channel which can transmit from. institutional and other locations on the I -net to the headend and -19- other points on the I -net. Any channels unused by the City three years after the institutional network is activated will revert to ACC provided that if the City subsequently has a use for any such channel ACC will return said channel(s) to the City six (6) months after receiving written notice if ACC has a use for the channel and immediately if there is no use of the channel. ACC will have the same liability for I -net users that the telephone company has for telephone users. ACC will respond to repair calls for the I -net within two (2) hours. For requests received during non -business hours the City or other I -net users will pay ACC $40 per hour for such service. Such hourly fee may be raised by ACC annually consistent with increases in the Consumer Price Index. For requests received during business hours there will be no charge. ACC shall provide scrambling services to I -net users as reasonably requested. 15.2 ACC shall maintain existing dedicated cables to sites for originating local programming (City Hall, Ithaca College and Tompkins County Library). During the rebuild, ACC shall install and thereafter maintain dedicated cable or cables to the following additional locations. for originating local programming: Ithaca High School, Boynton Junior High School, The Alternative School, Ithaca Youth Bureau, GIAC and Cornell University. The origination site at Cornell University shall be selected by Cornell. 15.3 Existing agreements with the City for use of the Cable Communications System, such as the City's fire alarm system, shall be continued by ACC for the term of this Franchise. 15.4 ACC shall provide an all channel audio emergency alert system to the City. The initiation site for emergency messages shall be the Central Fire Station. ACC shall provide a telephone line activation system for the emergency alert system. 15.5 Upon activation of the upstream capacity on the Cable Communications System, one upstream channel shall be designated for City and public sector uses. The City shall designate appropriate uses and users for the upstream channel designated for the City. For purposes of this section,-anrupstream channel shall be a channel which can transmit upstream from subscriber homes or other locations on the cable system to the headend and other points on the system. XVI SUBSCRIBER AND USER RIGHTS 16.1 At the time an installation or service agreement is to be signed, ACC shall furnish to each subscriber a simple but -20- thorough written explanation of all services offered; the fees, charges, terms and conditions of such services; information regarding billing and service calls; complaints; information regarding the availability of parental control devices; and a complete statement of the subscriber's right to privacy in conformance with 47 U.S.C. Section 631. Thereafter, ACC shall provide subscribers with privacy information at least once a year and other service related information at any time upon request. 16.2 ACC 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 agreement for installation of service. Such sales material shall clearly and conspicuously disclose the price and other information concerning ACC'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 records (VCRs) with cable service(s) and the cost for hooking up such VCRs. 16.3 ACC 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. 16.4 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 ACC's business office and all other facilities. Nothing in this Franchise 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. 16.5 In the event that ACC's service to any subscriber is interrupted for twenty-four (24) or more consecutive hours, ACC shall expeditiously grant such subscriber a pro -rata credit. 16.6 Each representative or employee of ACC entering upon private property shall be required to wear an employee identification card issued by ACC and bearing a picture of said representative. 16.7 ACC shall provide a standard identification document to •all employees,.including employees of subcontractors, who will be -21- in contact with the public. Such documents shall include a telephonenumber that can be used to verify identification.. In addition, ACC shall use its best efforts to clearly identify all personnel, vehicles, and other major equipment that are operating under the authority of ACC. 16.8 ACC shall have the right to disconnect service to a subscriber for non-payment after sixty (60) days. ACC will discontinue billing customers for service on the date requested by the customer. ACC may bill customers for any unreturned equipment until the equipment is returned to ACC by the - customer. ACC shall refund on a pro -rata basis any prepayments made by the customer. 16.9 CUSTOMER SERVICE STANDARDS. A. Requests for repair service shall be responded to by ACC no later than the end of the next regular business day. B. Response to outages shall be immediately. C. ACC shall maintain a person -operated 24-hour answering service for repair service. D. ACC shall complete all requests for installation within one week after receipt of such requests. Reasonable allowances for peak periods associated with the return of the student population in August and September will be made by the City. E. ACC shall maintain the system to meet all technical requirements of the FCC, the New York State Commission on Cable Television and, to the extent allowable under applicable law, the technical standards included in the Franchise. F. ACC shall maintain a business office within the City of Ithaca and shall inform customers of its hours. ACC agrees to extend business hours if necessary to meet the needs of its customers. G. ACC shall maintain staffing levels and support equipment to assure that telephone inquiries are handled promptly in order to minimize busy signals and hold time. Reasonable allowances for peak periods associated with the arrival of the student population in August and September will be made by the City. H. ACC shall respond to all written billing inquiries within one week. -22- I. ACC will issue a billing credit to any customer affected by a service outage that lasts for more than 24 hours equal to a pro rata share of the customer's monthly bill, but in no case less than 1/30 of the monthly bill. If the City at any time feels that these standards are not being met, the City shall notify ACC in writing and ACC shall have 30 days to respond to the City's notice. This response will include a reasonable plan to cure the problem, if applicable. Such plan to cure the problem shall be made satisfactory to the City. 16.10 ACC 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. 16.11 COMPLAINT PROCEDURE. A. ACC 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. ACC shall provide all subscribers or users with at least thirty (30) days prior written notice of a change in business office hours. B. ACC 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. C. ACC 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. ACC shall keep a record of all such complaints in compliance with state law and provide the record to the City as requested. D. Should a subscriber or user have a complaint which is unresolved after fourteen (14) days after notifying ACC 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 Franchise and the implementation of complaint procedures. A representative of ACC 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; if the City -23- prevails, all judgments and costs for attorney's fees will be paid by ACC. 16.12 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 ACC by periodic announcement on the programming guide channel, or if such channel is not available on a local origination channel between the hours of seven (7) p.m. and nine (9) p.m., for four (4) consecutive days during each such week. 16.13 ACC shall at all times protect the privacy of subscribers as provided in this Franchise and other applicable Federal, State and Local laws. 16.14 No people meter shall be used without the express written consent of the subscriber. 16.15 ACC shall use state-of-the-art converters. ACC shall make converters available to subscribers for rent or purchase. ACC shall allow subscribers to purchase or rent converters from - other vendors. ACC 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 ACC's Cable Communications System. Subscribers shall not be required to replace damaged converters rented from ACC if the damage resulted from fire, flood, earthquake or other natural disaster or act of God. 16.16 ACC shall install and/or maintain internal wiring for subscribers. As of March 1, 1989, ACC may own the internal wiring or, at the subscriber's discretion, the subscriber may own the wiring. ACC shall allow subscribers or other vendors to install, own and/or maintain internal wiring. Any subscriber who duly notifies ACC within the time period reasonably established and advertised by ACC, may acquire ownership .of the internal wiring at his/her premises without charge. Inthe event of signal leakage ACC may terminate service consistent with Federal law. 16.17 ACC shall make remote control units available to subscribers to purchase or rent. ACC shall allow subscribers to purchase or rent remote control units from other vendors. ACC may provide remote control units to subscribers at no charge as a part of its package of services. ACC 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 ACC's Cable Communications System. -24- Subscribers shall not be required to replace damaged remote' control units rented from ACC if the damage resulted from fire, flood, earthquake or other natural disaster or act of God. 16.18 ACC employees will not enter a customer's home except when requested to by the customer. XVII EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION 17.1 ACC agrees that it shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, disability, national origin, age, marital status, or sexual orientation or affectional preference. In the employment of persons, ACC shall fully comply with applicable local, state and federal law, and shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their. race, color, religion, sex, disability, national origin, age, marital status or sexual orientation or affectional preference. 17.2 ACC 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, ACC 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. 17.3 ACC 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 17.1 above, ACC shall take affirmative action to employ,. during the construction, operation and maintenance of the Cable Communications System minorities and females. ACC shall submit to the City annual EEO reports required by the Federal Communications Commission. XVIII REGULATION OF FRANCHISE 18.1 PERFORMANCE EVALUATION. A. The City and ACC shall, at the discretion of the City, hold annual performance evaluation sessions. All such evaluation sessions shall be open to the public. -25- B. Topics which may be discussed at any scheduled or special evaluation session may include, but not be limited to, system performance, compliance with this Franchise and applicable law, 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. C. ACC 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. D. During review and evaluation ACC 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. 18.2 In accordance with the terms of the Franchise, the City may, at any time, make reasonable 'inquiries concerned with the management and affairs of the Cable Communications System. ACC shall respond to such inquiries in a timely fashion. 18.3 Where the City has questions about the reliability or technical quality of cable service, the City shall have the right and authority to require ACC to test, analyze and report on the performance of the Cable Communications System. ACC 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: A. the nature of the complaint or problem which precipitated thespecial tests; B. the system component or area tested; C. the equipment used and procedures employed in testing; D. the method, if any, in which such complaint or problem was resolved; and E. 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 ACC. ACC shall reimburse the City for the -26- costs of such engineer if the tests performed show that the quality of service is below the standards set forth in this Franchise. 18.4 BOOKS AND RECORDS AVAILABLE TO CITY. A. The City reserves the right to inspect all pertinent books, records, maps, plans, financial statements and other like material, of ACC, upon reasonable notice and during normal business hours. B. If any of such maps or records are not kept in the City, or upon notice ACC 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 ACC. 18.5 REPORTS REQUIRED. ACC shall file with the City: A. Upon request 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 shall be provided to the City. B. 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 this Franchise to be given to subscribers. C. The following financial reports 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 this 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) An annual City -only, certified income statement. (5) An annual list of officers and members of the Board of ACC's and of any parent corporation. -27- D. The following system and operational reports shall submitted annually to the City: (1) ACC shall provide the. City with a copy of its annual performance testing results as submitted 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 ACC'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 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. E. ACC 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 Franchise. 18.6 MANDATORY RECORDS. ACC shall at all times maintain: A. A record of all complaints received and interruptions or degradation of service experienced for the preceding period prior to a performance review, consistent with state law and regulation. B. 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 ACC for one (1) additional year and shall be subject to inspection and copying by the City or its designee during ACC's regular business hours upon reasonable request. C. A full and complete set of plants, records and "as built" maps showing the exact location of all cable installed or in use in the City, exclusive of subscriber service drops.. -28- 18 .7 -RIGHT OF - INSPECTION A. The City shall have the right to inspect all gooks, records, reports, maps, plans, financial statements and other like materials of ACC as provided in this Franchise, at any time during normal business hours. B. The City shall have the right to inspect all construction or installation work performed subject to the provisions of this Franchise and to make such tests as it shall find necessary to ensure compliance with the terms of this Franchise and other pertinent provisions of law. C. At all reasonable times and for the purpose of enforcement of this Franchise, ACC shall permit examination by any duly authorized representative of the City, of all Cable Communication System and facilities, together with any appurtenant property of ACC situated within the City and outside of the City if it is utilized in the operation of the City's Cable Communications System. XIX RATE REGULATION 19.1 City having established its right to rate regulation under applicable law, ACC will not raise basic .rates higher than the following for a five year period. On February 1, 1988 the maximum rate will be $9.00. On March 1, 1989 the maximum rate will be $11.00. On March 1, 1990, the maximum rate will be $12.10. On March 1, 1991, the maximum rate will be $13.31. On March 1, 1992, the maximum rate will be $14.64. Starting on March 1, 1993, and for each and every year thereafter for the term of this Franchise the maximum rate will be the previous year's maximum allowed rate plus 5 percent or that percentage equal to the rise in the Consumer Price Index, whichever is higher. Additionally, ACC will give a need -based senior citizen discount of 10 percent to those who qualify for real property tax exemption and others who qualify using mutually agreeable criteria. Effective March 1, 1989, ACC will not charge custoemrs for additional outlets or FM service. 19.2 ACC covenants that it will not bring or fund any lawsuit or other proceeding seeking deregulation of the aforementioned rates prior to March 1, 1991 and further agrees to •pay the attorney's fees and other costs of the City incurred in defending any such lawsuit or other proceeding should ACC bring them or fund them prior to March 1, 1991. 19.3 Effective March 1, 1991 ACC may seek deregulation of basic cable service rates. If at any time any additional cable -29- franchises , granted by the City, or any additional cable television Is authorized to operate within the City, there will be no further regulation 'of ACC's rates from the date of said grant of any additional franchise or the beginning of construction of such additional system, whichever comes sooner, until the termination of such additional franchise or of the operation of such additional system, whichever is later. 19.4 ACC shall file with the City schedules which shall describe all services offered by ACC, all rates and charges of any kind and all terms or conditions relating thereto. Thereafter, ACC 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. XX FRANCHISE FEE 20.1 The City of Ithaca shall.be entitled to receive from ACC a Franchise fee of five percent (5%) of ACC's Gross City Revenue. 20.2 The Franchise fee established in 20.1 above shall be tendered as follows: A. Five percent (5%) of ACC's Gross City Revenue for successive three (3) month calendar periods tendered within forty-five (45) days after each such period. 20.3 To the extent necessary to prevent ACC from diverting revenues from the operation of the Cable Communications System from ACC 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. 20.4 In the event that the fees herein required are not tendered on or before the dates fixed in this Franchise, 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. 20.5 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 Franchise. All amounts paid shall be subject to audit and recomputation, by an independent auditor -30- 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 dare .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 ACC 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. XXI BONDS, INSURANCE AND INDEMNIFICATION 21.1 PERFORMANCE BOND. A. ACC shall provide a performance bond in the amount of $500,000 (five hundred thousand dollars) until construction is completed and shall maintain a performance bond in the amount of $25,000 (twenty-five thousand dollars) for the remaining term of the. Franchise. The performance bond shall be provided and regulated in accordance with this Franchise. The performance bond shall be provided within thirty days of the receipt of final operating authority. B. 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 ACC to: faithfully comply with the provisions of this 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. (2) The total amount of the bond shall be forfeited in favor of the City in the event: (a) ACC abandons the Cable Communications System at any time during the term of this Franchise or any extension thereto; -31- (b) ACC. assigns this Franchise without. ,.the express written consent of the City. C. Upon written application by ACC, 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 ACC shall be without prejudice to ACC'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 ACC within one (1) year of any prior applications. D. Prior to drawing upon the performance bond for the purposes described in this Section, the City shall notify ACC in writing that payment is due and ACC shall have thirty (30) days from the receipt of such written notice to make a full and complete payment. If ACC does not make the payment within thirty (30) days, the City may, upondetermination of. a breach of this Franchise pursuant to Section 3.6,: withdraw the amount thereof, with interest and penalties, from the performance bond. E. Within three (3) days. of a withdrawal from the performance bond, the City shall send to ACC, by certified mail_, return receipt requested, written notification of the amount, date and purpose of such withdrawal. F. No later than thirty (30) days after mailing to ACC by certified mail notification of a withdrawal pursuant to paragraph D above, ACC shall replenish the performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the performance bond shall constitute a substantial violation of the Ordinance and this Franchise. G. 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 ACC. ACC shall, in the event of any such cancellation notice, obtain, pay all premiums for and file replacement bond or policies within thirty (30) days following receipt by the City or ACC of any notice of cancellation. H. To offset the effects of inflation, the amounts of the bond provided for herein are subject to reasonable increases at the end of every three (3) year period of this Franchise, applicable to the next three year period, upon the reasonable determinationof the City. Inflation compensation shall be computed in accordance with the regional Consumer Price Index. -32- I. The City shall not seek recovery from the Performance Bond until it has provided ACC with thirty (30) days to cure any default. 21.2 LIABILITY AND INSURANCE. A. Prior to commencement of construction, but in no event later then sixty (60) days after the effective date of this Franchise and thereafter continuously throughout the duration of this Franchise and any extensions or renewals thereof, ACC 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 Franchise. B. Neither theprovisions of this Section -or' any damages recovered by the City hereunder, shall be construed to or limit the liability of ACC under this Franchise for. damages. C. ACC shall provide the City with written notice of its intention to cancel or not renew any of the insurance policies maintained pursuant to this Franchise. D. 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 risen out of or in connection with the work covered by this Franchise. 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. E. All insurance policies obtained under the provisions of the Ordinance or this Franchise shall be written by companies authorized to do business in the State, and approved by the State. 21.3. ACC shall maintain, and by its acceptance of this Franchise granted hereunder specifically agrees that it will maintain throughout the term of this Franchise, general liability insurance insuring ACC in the minimum of: A. $500,000 for property damage per occurrence; -33- B. $1,000,000 for property damage aggregate; C. $1,000,000 for personal bodily injury to any one person; and D. $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. 21.4 ACC shall maintain, and by its acceptance of this Franchise granted hereunder specifically agrees that it will maintain, throughout the term of this Franchise automobile liability insurance for owned, non -owned or rented vehicles in the minimum amount of: A. $1,000,000 for bodily injury and consequent death per occurrence; B. $1,000,000 for bodily injury and consequent death to any one person; and C. $500,000 for property damage per occurrence. 21.5 ACC shall maintain and by its acceptance of this Franchise granted hereunder specifically agrees that it will maintain throughout the term of this Franchise, Worker's Compensation and employer's liability, valid in the State, in the minimum amount of: A. Statutory limit for Worker's Compensation. B. $100,000 for employer's liability. 21.6 INDEMNIFICATION A. ACC 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 though the acts or omissions of ACC, its servants, agents or employees. -34- (2) Arising out of any claim for invasion by ACC, its servants, agents or employees of the right. of privacy, or 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 ACC's failure to comply with the provisions of any federal, state, or local statute, ordinance, or regulation applicable to ACC in its business hereunder. B. The foregoing indemnity is conditioned upon the following: The City shall give ACC 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 ACC and participating in the defense of any litigation by its own counsel at its sole cost and expense. XXII BREACH 22.1 In the event that the City has reason to believe that ACC has defaulted in the performance of any provision of this Franchise except as excused by force majeure, the City shall notify ACC in writing of the provision or provisions which the City believes may be in default. ACC shall have thirty (30) days from the receipt of such notice to: A. Respond to the City in writing, contesting the City's assertion of default and providing such information or documentation as may be necessary or; B. 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. ACC shall report to the City in writing, at thirty (30) day intervals as to ACC's efforts, indicating the steps taken by ACC to cure the default and reporting ACC's progress until such default is cured. In the event ACC fails to cure the default within the stated period the City shall convene a public hearing on reasonable notice at which hearing ACC may be heard and after which the City shall specify the complaint against ACC; thereafter the City shall appoint an impartial person to act as factfinder who shall -35- 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 after such hearing determines that ACC is in default of any such provision of this 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 Franchise, 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 factfinding hearing. B. Commence an action at law for monetary damages, including the expenses of the factfinding hearing. C. Declare this Franchise to be revoked and order ACC 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. ACC may seek recourse as available by law or federal or state regulation. 22.2 For the violation of any of the following provisions of this Franchise, the City shall notify ACC in writing of the violation and ACC 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 ACC 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 ACC, shall be chargeable, to the extent available, to the. bond tendered by ACC within the aforesaid period of time. These liquidated damages shall be in addition to and not a limitation upon the other penal provision of this Franchise and applicable law, including penalties or revocation, or other statutorily or judicially imposed penalties or remedies. A. For failure to complete construction and installation in accordance with this Franchise, $100.00 per day. -36- B. For failure to submit reports or supply data in accordance with this Franchise, $10.00 per day for eachday that such noncompliance continues. C. For failure to test, analyze and report on the performance of the Cable Communications System in accordance with this Franchise, $25.00 per day for each day, or part thereof, that such noncompliance continues. D. For failure to provide the capital equipment, and facilities, and services for public, educational and governmental access, as specified in this 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 ACC 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. 22.3 No decision by the City to invoke any any remedy under this Franchise or under any statute, law or Ordinance shall preclude the availability of any other such remedy. 22.4 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. XXIII TRANSFER OF OWNERSHIP OR CONTROL. 23.1 This Franchise 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. 23.2 ACC shall promptly notify the City of any actual or proposed change in control of ACC. The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. The current ownership of ACC is as listed in Appendix [G]. 23.3 Prior City authorization is required for every change, transfer or acquisition of control of ACC. City consent will not be unreasonably withheld. For the purpose of determining whether -37- 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 ACC 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. 23.4 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 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. 23.5 The consent or approval of the City to any transfer of ACC 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. 23.6 Any approval by the City of transfer of ownership or control shall be contingent upon the .prospective controlling party becoming a signatory to the Franchise. 23.7 The City shall act on a request for any consent or approval required by this section within 120 days of a presentation to the Common Council requesting such consent or approval. The City's approval of any transfer or assignment shall not be deemed an approval of the purchase price. 23.8 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. XXIV MISCELLANEOUS PROVISIONS 24.1 ACC shall comply with all statutes, rules, and regulations of the New York State Commission on Cable Television. The terms of this Franchise are subject to the approval of the New York State Commission on Cable Television. 24.2 In accepting this Franchise, ACC acknowledges that its rights hereunder are subject to the police powers of the City to adopt and enforce general Ordinances necessary to the safety and welfare of the public, and it agrees to comply with all applicable general laws and Ordinances enacted by the City pursuant to such power. This Franchise is subject to applicable federal and state law, including the Cable Communications Policy Act of 1984. Nothing contained in this Franchise shall be construed so as to require the commission of any act contrary to such applicable federal and state law. In the event of any conflict between this Franchise and applicable federal and state law the latter shall apply. ACC's acceptance of this Franchise shall not constitute a waiver or,relinquishment of any right it may have, now or hereafter, to seek judicial or other review of the validity, constitutionality or enforceability of any of its provisions. 24.3 ACC recognizes but does not adopt the City's position that the City's Cable Communications Ordinance [number, date], is valid and enforceable against ACC. The City recognizes but does not adopt ACC's position that said ordinance is invalid and. unenforceable against ACC. 24.4 Nothing contained in this Franchise shall be construed to deprive ACC or the City of any "grandfather" rights in any future amendments to any statute or regulation. This Franchise, however, shall be subject to such regulations as 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 this Franchise. 24.5 If any section, sentence, paragraph, term or provision of this Franchise is determined to be illegal, invalid or unconstitutional, or otherwise unenforceable 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. In the event of such determination ACC and the City shall negotiate in good faith and agree upon a provision which will achieve the same purpose as closely as possible. -39- 24.6 The parties recognize that it is within their mutual best interests for the Cable Communications System to be operated as efficiently as possible in accordance with the requirements set forth in this Agreement. To achieve this, the parties agree to cooperate with each other in accordance with the terms and provisions of this Agreement. Should either party believe that the other is not acting timely or reasonably within the confines of applicable regulations and procedures in responding to a request for action, that party shall notify the agents designated for that purpose by the other. The agent will use its best effort to facilitate the particular action requested. 24.7 During the term of this Agreement, ACC shall be liable for the acts or omissions of its affiliates while such affiliates are involved directly or indirectly in the construction, installation, maintenance or operation of the cable television system as if the acts or omissions of such affiliates were the acts or omissions of ACC. 24.8 Ifby 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. 24.9 The Mayor or the Cable Commission shall be responsible for the continuing administration of this Franchise. Such designation cannot be changed without prior written notification to ACC. 24.10 Nothing herein shall be deemed to create a joint venture or principal -agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner which would indicate any such relationship with the other. 24.11 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 ACC shall be sent by certified mail, postage prepaid, to ACC at its Ithaca office. 24.12 The captions to sections throughout this Franchise are intended solely to facilitate reading and reference to the sections and provisions of this Franchise. Such captions shall not affect the meaning or interpretation of the Ordinance. -40- 24.13 This Agreement and all attachments hereto, represent the entire understanding and agreement between the parties hereto with respect to the subject matter hereof, supersede all prior oral negotiations between the parties, and can be amended, supplemented, modified, or changed only as provided herein. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. ATTEST: CITY OF ITHACA, NEW YORK, a municipal corporation ,.J Witness 0 AMERICAN COMMUNITY CABLEVISION, a Division of American Television and Communicati• s Cor oration SEAL Vice -President STATE OF NEW YORK ) ss: COUNTY OF TOMPKINS ) On this 3 % Sf day of QGid � , 1988 before me personally came John C. Gutenberger, to me personally known, who being by me duly sworn, did depose and say that he resides at 110 Eastwood Terrace, Ithaca, New York and that he is the Mayor of the City of Ithaca, the municipal corporation described in and which executed the above Instrument; and that he signed his name thereto by direction of the Common Council of the City of Ithaca. STATE OF COLORADO. ) ss: COUNTY OF ARAPAHOE -.Stir W. NACH 'ota•; Public, State of New York Nc. 02 NA 4669490, Reg. in Tompkins County h's Commission Expires Meretr3'07" 9-'- 1,19 43 On this 777/- day of HOVE-/ /3ER , 1988 before me personally came 711*Y45 A. fiWCREkgY, to me personally known, who being by me duly sworn, did depose and say that he resides at I1t /NVC E` NNE Es AJ LEI.00dD C0w�Qi430 , New—York and that he is the VICE . 1PPESIDEAVT of the corporation described in and which executed the above Instrument; and that he signed his/her name thereto by direction of the Board of Directors of said corporation. ' 1LC¢— Nota Public Iffy Commission Expires July 24, 1 APPENDIX C P ROv 1U 11M t t�ta When cableservice is offered to subscriatrsaonm� ienurebuilt system, the franchisee shall provide, , the following categories of programming: Full-time Cultural Programming - (e.g. Arts and Entertainment. Network, etc.) • Full-time Movies (e.g. American Movie Classics; etc.) Full-time Religious Programming - (e.g. CUN, Eternal Word Network, Inspiration Network, National Jewish Television, Trinity -Broadcasting, Affiliated Christian Television Service, etc.) Full-time Shopping Service - (e.g. Home shopping Network, Quality Value Cable, Cable Value Network, etc.) Full-time Minority Programming - (e.g. Black Entertainment Television, Spanish Information Network, Silent Network, etc.) • Full-time Family and Children's Programming - (e.g. Nickelodeon, Lifetime, etc.) Full-time Sports Programming - (e.g. ESPN, SCORE, etc.) Full-time Non -Local Government Programming (e.g. C -SPAN I, C -SPAN II, etc.) Full-time Music Programming - (e.g. MTV, Nashville Network, VH -1, etc.) Full-time News Programming - (e.g. CNN, deadline News, . Financial News Network, etc.) • Full-time Information and Non -Fiction Programming -(e.g. The Weathar Channel, Discovery Channel, The Learning Channel, etc.) General Entertainment Programming - (e.g. USA Full-time etc.) Network, Nostalgia Channel, superstations, c t. Public, Educational and Government Access Channels (at least one on 12 -channel basic and the rest of next tier of service) b'!•1 radio service, in stereo where available, iii various formats (e.g.,. Classicals, Easy Listening, Adult Rock, Yount' hock, Proyressive Rock, Jazz, Folk, Country, etc.) APPENDIX D EXISTING FOCAL ORIGINATION EQUIPMENT INVENTORY CABLE NEWSCENTER 7 Studio 2 Sony Studio M3A Video Cameras 1 Sony ENG/Studio M3A Video Camera 3 Sony Al2x9BRM0-88 Lenses 3 Sony I,0-1011 Rear Lens controls 3 Sony CCQ-10AR Camera Cables 4 Sony DR -100 headsets 3 Tiffen 72mm Clear Filters 3 ITE II -6 Ilydr ocam Bead 3 ITE T10 Tripod 3 ITE Wedge Plate 3 ITE Mitchell Adapter 3 ITE D-7 1)oly 3 Tiffen Clear Filters 1 Q -TV Prompting System (2 Cameras) 1 Buhl 573-200 Mobil Multiplexer 2 Buhl 620-400 Model E-3 Projectors 1 20'x20'. Studio Lighting Package TOTAL Control Room 4 Sons' 4 om_- 4 Son 2 Sony 2 Sony 2 Sony 2 Sony 2 Nova 2 Sony 1 Sony 1 Sony 2 Sony 1 Sony 1 Sony 1 Sony 1 Electrohome RAK-9A Rack Mount 1 JVC Switcher 1 CDT, 860 Downstream Keyer 1 Winsted E4902 C.G. console 1 Laird 1500 Character Generator 1 Laird 1030 Color Encoder 1 Videotek RS -10A Routing Switcher 1 Videotek VIS -1200 Video Switcher 1 Videotek VDA-16 Video Dist. Amp. 1 Vi.dcotek DAT -1 Rack Mount Kit 2 Videotek DAT -2 Blank Panels 1 Videotek TSM -60 Waveform Monitor 5€300 3/4" VTR's z iii -501 Rack Mount Kits RM -580 Remote Controls RM -V5 VTR Input Selectors RM -555 Multi -Unit Control VCS -500 Video/Audio Switchers 500 Time Base Correctors RMM-505 Rack Mount Kits CVM -1271 Preview Monitor PVM-1220 Program Monitor EVM-920 Tape Monitors PVM-122 C.G. Preview Monitor CVM -1271 C.G. Program Monitor MB -502 Rack Mount Kit $22,797.60 7,976.80 3,451.50 1,982.40 371.70 311.52 34.30 6,566.70 2,465.61 359.31 284.97. 2,713.41 42.48 6,500.00 1,197.70 486.75 8,823.19 56b $58,766.74 $14,1-,,m0.54 660.80 1,073.80 379.96 3,122.28 2,065.00 8,236.40 49.56 675.43 1,775.90 717.44 398.25 675.43 90.86 44.84 8,177.40 2,587.15 822.70 6,808.60 1,056.10 1,060.82 339.84 268.45 64.90 47.20 1,826.64 1 Videotek TSM-60 Vectorscope 1 Videotek DRC-1 Racic Mount Kit 1 NEC CM-2551A 25" Video Monitor 1 Davis and Sanford RWM-3 Wall Mount 1 Sony RMM-502 Rack Mount Kit 2 Sony RMM-503 Rack Mount Kits 1 Lento 300-312T Test Set 1 1 1 1 1 1 1 2 Winsted.G8538*Production Console Fostex A-2 Reel to Reel Recorder JVC KD -V601 Audio Cassette Recorder JVC QL-G901J Turntable JVC MI -2000 Audio Mixer Fostex T-20 headphones Fostex 6301 Monitor Speakers TOTAL Editing 4 Sony VO -5850 Editing Recorders 2 Sony RM -440 Editing Controller 4 Sony HCC -5F Control Cables •2 Sony VDC-5 Dub Cables 4 JVC TMR-9i1 Color Monitors 2 Fostex 6301 Audio Monitors (1 Pair 4 JVC RK -9U Rack Mount Kits 2 Winsted II -8350 Editing Console 2 For -A400 Full Frame Time Base Correctors 2 Videotek PDA -16 Pulse Dist. Amp. 2 Videotek DAT -1 Rack Mount Kit 4 Videotek DAT -2 Blank Panels 2 Videotek TSM -60 Waveform Monitor 2 Videotek DRC -1 Rack Mount Kit 2 JVD ADP -9U Rack Mount Adapter TOTAL Portable 3 Sony DXC-1820KA Video Cameras 1 Sony BC -1000 Battery Charger 4 Sony BP -60 Batteries 3 Sony VO -6800 Recorders 2 Sony CMA -8 AC. Adapters 2 Sony BC1-WA Battery Charger 6 Sony NP -1 Ni -Cad Batteries 2 Sony Porta -Brace C-6800 Case 2 Tiffen 72mm Clear Filters 2 ITE T-40 Tripods 2 ITi II -40 Fluid heads 2 Wl ec trovoi ce 635A Microphones 4 Shure SM-83CN Lavalier Microphones 2 Lowel 01-93 Lighting Kits TOTAL 56c 2,092.14 177.00 578.20 112.10 33.04 57.82 9,233.15• 2,639.07 702.10 389.40 401.20 1,008.90 56.64 228.92 $75,665.96 24,430.72 2,924.04 363.44 82.60 2,407.20 457.84 396.48 2,835.66 9,888.40 536.90 129.80 94.90 3,653.28 354.00 155.76 $48,710.52 7,320.00 346.50 190.40 7,980.00 546.00 460.00 270.00 201.60 19.38 288.00 354.00 141.30 560.00 1.561.00 $20,238.18 PRODUCTION UNIT Studio 1 Cyclorama (Studio Gray) 1 Cyclorama (Black) Carriers for above Photographic Backgrounds Editing 1 Sony 5850PAC 2 JVC TMR-91J Video Monitors 2 Fostex Speakers 1 For -A FA -400 TBD 1 Leader Waveform monitor Cables and Connectors 1 JVC Audio Mixer 1 Urie Equalizer 746.35 531.30 300.00 586.22 12,376.00 1,318.60 249.90 5,307.40 2,042.50 94.90 1,034.55 729.45 Portable 2 Sharp XC-A1PP Color Video Camera 12,744.90 2 Sharp XC-A14VC 14 -Pin VTR Cable 190.40 2 Sharp XC-A1BR Battery Bracket 133.28 4 Sharp XC-80BAT 14.4V 4AH Battery 825.86 2 Sharp XC-70SC Battery Charger 114.24 2 Fujinon A16X9. 5A 16:1 Servo Zoom 3,198.72 2 ITE 1140 Fluid Head 637.50 2 ITE T44 Tripod with Pedestal 585.00 2 Sony VO -6800 3/4" Portable Recorders 6,962.00 2 Sony CMA -8 AC Adapters 767.00 2 Sony J3C1-WA Battery Chargers 660.80 1 Sony PVM-8020 8" color Video Monior 562.86 1 Sony VO -5850 3/4" Editing Recorder 6,903.00 2 Porta -Brace C-6800HB-20 Record Case 290.50 260.75 234.50 178.50 984.37 121.20 546.87 723.32 Mic 104.16 700.00 315.00 59.00 2,190.00 1,115.00 12.0001.010 1 Porta -Brace PC -2 Production Case 1 Porta -Brace PC -1 Production Case 2 Porta -Brace MO -8020 Monitor Case 1 Lowel D2-93 3 Light DP Kit 3 Lowel D2-25 DP Umbrella 1 Lowel S2-92 Softlight Kit 4 Shure SM-83CN Lavalier Microphone 1 Electrovoice 635A Omnidirectional 1 Cine 60 8328FC Battery Belt 1 Cine 60 9400 Fast Charger 1 Cine 60 6475 Cable 1 Tracking dolly 1 Lowel Omni Kit 1 Chevy Astro Van TOTAL 56d $79,425.90 CONTROL ROOM* VCRs: 3 Sony VP -5000 3/4" Recorders $ 6,000.00 1 Sony VO -5800 3/4" Recorders 5,000.00 1 Sony 2800 3/4" Recorders 1,000.00 1 JVC DR -3100V 1/2" VHS Recorder 550.00 1 JVC 1/2" Beta Recorder 500.00 Monitors: 1 Videotek KV -1217 13" Monitor 650.00 1 NEC CT1305A 13" Monitor 450.00 1 Sony CVM 1271 13" Monitor 650.00 1 RCA 13" Monitor 200.00 1 Panasonic 9" Monitor 200.00 2 Panasonic CCTV 9" Monitor 300.00 2 RCA TC1910 9" Monitor 400.00 3 Setchell Carlson 5" Monitor 600.00 6 Panasonic WV -5203 5" Monitor 1200.00 1 Sony CVM 2370 with case 950.00 Test equipment: ' 1 Leader LVS-585013 STSC Vector Scope 2000.00 1 Tektronix 528A Waveform Monitor 2000.00 1 Panasonic WV -5361U Pulse Cross Monitor 750.00 Audio: 1 Realistic MPA -20 Amp 110.00 1 Orban 422A De -Esser 583.00 1 Shure 12 -channel Audio Mixer 1600.00 2 Sentry 100A Studio (Audio) Monitor 438.00 1 Harmon/Kardon CD201 Audio Tape Decic 385.00 1 AR77XB Turntable 150.00 Video: 1 JVC KM -2000 Seg 0 4012.00 1 Videotek RS10A Switcher • 1061.00' 2 Panasonic WJ-22SR Switcher 500.00 1 Harris 550 Time Base Corrector 6000.00 1 Lenco PCD 473 NTSC Decoder 3000.00 1 Shintron Character Generator 3500.00 TOTAL $52,939.00 CONTROL ROOM UPGRADE FOR 1987* 2 Sony VO -5800 Decks $10,200.00 1 Lang Video video/audio switcher • 3,000.00 1 Videotek audio monitor 500.00 1 Shure M267 mixer 470.00 2 Electrovoice EVM-920 B/W Monitors 750.00 1 Electrochrome rack mount 50.00 1 Shure racic mount for mixer 35.00 1 Nova 620 time base corrector 5,000.00 1 Winsted Rack with Tilt 900.00 Miscellaneous cable & connectors 150.00 TOTAL $21,055.00. * Shared with access users. Access users have priority use. 56e EDITING SUITE* 1 Sony VO -5800 3/4" Recorder $ 1 Sony VO -5850 1 Sony RM -440 Control Unit 1 Connecting Cables 2 JVC 9" Color Monitors 1 Panasonic 9" B/W WV -5370 Monitor 2 Fostex 6301B Personal Audio Monitors 1 Realistic Mixing Console 1 Realistic Parametric Equalizer 1 Knox K1008 Chromafont CG 1 Dual Turntable 1 Nakamichi BX100 Audiocassette 1 Realistic LV10.Headphones 1 Panasonic WJ225R Video Switcher 1 For -A FA -400 Time Base Corrector TOTAL 5,000.00 8,350.00 1,400.00 90.00 1,191.00 150.00 280.00 89.00 40.00 3,450.00 450.00 500.00 35.00 250.00 6,000.00 $27,275.00 * Shared with access users. Access users have priority. 56f STUDIO*** 3 Sony 1820 Cameras with Tripods, . Dollies, Studio and Portable Monitors - Cases, Cables, CCUs, CCU Rack Mount Unit 1 Sony DXC-1610 color video cameras w/ Quickset 7301 Sampson tripods, 7201 head and 7601 Dollies $21,000.00 $ 5,000.00 1 Sony AVC 3450 B/W portable camera $ 674.00 Audio: Mics: 3 Shure Lavaliers 6 Shure Spi91 Mics 6 Electrovoice 635A. 2 Calrad Mics Stands:6 Desk Mic Stands 6 GooseNecks 4 Baby Booms 1 Boom with Wheels 5 Electrovoice Shock Mount Clamps 313A 5 Electrovoice Shock Mount Clamps 312 Speakers 300.00 300.00 450.00 180.00 180.00 72.00 200.00 .,100.00 50.00 40.00 300.00 Lights: 2 Photogenic Machine co CP -15 Floodlight Scoops 2 Kliegel Scoops 4 Kliegel 111 Fresnels 2 Mole -Richardson 751 Baby Combo Fresnels 4 Kobold Porta Lites with Stands, Handles & Mounts 4 Kobold Porta Lites with STands, Handles & Mounts 1 20' x 40' Lighting Grid Total replacement value of Lighting System $10,000.00 Miscellaneous: Sawyer 500 B Slide Projector with 40 slide tray Comp. Video CVC - 2500 videocassette eraser 125.00 345.00 $39,316.00 ***Shared with access users. LO will have priority on this used equipment. 56g PORTABLE EQUIPMENT*** 2 Sony 1800 Color Cameras 7,000.00 (with viewfinders, cases, cables) 2 Sony 4800 3/4" VCRs with AC adapter 9,000.00 2 Sony 4800 Porta -braces •N• 280.00 2 Davis/Sanford Tripods 300.00 1 VC 100 Battery Charger 300.00 5 BP -60 Portable Batteries 300.00 1 Audio Tec Lavalier Mic 55.00 1 Sony 3800 3/4" Portable VCR 2,400.00 1 Sony 3800 3/4" Porta -Brace 100.00 2 Sony 25' Camera Extension Cable 132.00 TOTAL $22,367.00 **•*Shared with access users. L.O. will have priority on this used equipment. 56h APPENDIX E EXISTING ACCESS EQUIPMENT INVENTORY Current Equipment: CONTROL ROOM* VCRs: 3 Sony VP -5000 3/4" Recorders 1 S; -y VO -50g0 3/4" recorders 1 Sony 2800..3/4" Recorders 1 JVC AR -3100V 1/2" VHS Recorder 1 JVC 1/2" Beta Recorder Monitors: 1 Videotek KV -1217 13" Monitor 1 NEC CT1305A 13" Monitor 1 Sony CVM 1271 13" Monitor 1 RCA 13" Monitor 1 Panasonic 9" Monitor 2 Panasonic CCTV 9" Monitor 2 RCA TC1910 9" Monitor 3 Setchell Carlson 5" Monitor 6 Panasonic WV -5203 5" Monitor 1 Sony CVM 2370 with case Test equipment: 1 Leader LVS-5850B STSC Vector Scope 2000.00 1 Tektronix 528A Waveform Monitor 2000.00 1 Panasonic WV -5361U Pulse Cross Monitor 750.00 Video: 1 JVC KM -2000 Seg 1 Videotek RS10A Switcher 2 Panasonic WJ-22SR Switcher 1 Harris 550.TBC 1 Lenco PCD 473 NTSC Decoder 1 Shintron Character Generator Audio: 1 Realistic MPA -20 Amp 1 Orban 422 A De -Esser 1 Shure 12 -Channel Audio Mixer 2 Sentry 100A Studio (Audio) Monitor 1 Marmon/Kardon CD201 Audio Tape Deck 1 AR77XB Turntable $ 6,000.00 5,000,.00 1,000.00 550.00 500.00 650.00 450.00 650.00 200.00 200.00 300.00 400.00 600.00 1200.00 950.00 TOTAL CONTROL ROOM UPGRADE FOR 2 Sony VO -5800 Decks 1 Lang Video video/audio switcher 1 Videotek audio monitor 1 Shure M267 mixer 2 Electrovoice EVM-920 B/W Monitors 1 Electrochrome rack mount 1 Shure rack mount for mixer 1 Nova 620 time base corrector 1 Winsted Rack with Tilt Miscellaneous cable & connectors TOTAL 4012.00 1061.00 500.00 6000.00 3000.00 3500.00 110.00 583.00 1600.00 438.00 385.00 150.00 $41,473.00 1987* $10,200.00 3,000.00 500.00 470.00 750.00 50.00 35.00 5,000.00 900.00 150.00 $21,055.00 * Shared with L.O. Access users have priority use. 51d EDITING SUITEN 1 Sony V0-5800 3/4" Recorder $ 1 Sony VO -5850 1 Sony RM -440 Control Unit 1 Connecting Cables 2 JVC 9" Color Monitors 1 Panasonic 9" B/W WV -5370 Monitor' 2 Fostex 6301B Personal Audio Monitors 1 Realistic Mixing Console 1 Realistic Parametric Equalizer 1 Knox K1008 Chromafont CG 1 Dual Turntable 1 Nakamichi BX100 Audiocassette 1 Realistic LV10. Headphones 1 Panasonic WJ225R Video Switcher 1 For -A FA -400 Time Base Corrector 5,000.00 8,350.00 1,400.00 90.00 1,191.00 150.00 280.00 89.00 40.00 3,450.00 450.00 500.00 35.00 250.00 6,000.00 TOTAL LIGIHTING SYSTEM* $27,275.00 2 Photogenic Machine co CP -15 Floodlight Scoops 2 Kliegel Scoops 4 Kliegel 111 Fresnels 2 Mole -Richardson 751 Baby Combo Fresnels 4 Kobold Porta Lites with Stands, Handles & Mounts 4 Kobold Porta Lites with STands, Handles & Mounts 1 20' x 40' Lighting Grid Total replacement value of Lighting System $10,000.00 * Shared with Local Origination. Access users have priority. 51e STUDIO*** 3 Sony 1820 Cameras with Tripods, Dollies, Studio and Portable Monitors - Cases, Cables, CCUs, CCU Rack Mount Unit $21,000.00 • 1 Sony DXC-1610 color video cameras w/ Quickset 7301 Sampson tripods, 7201 Head and 7601 Dollies $ 5,000.00 1 Sony AVC 3450 B/W, portable camera $ 674.00 Audio: Mics: 3 Shure Lavaliers 300.00 6 Shure Spi91 Mics 300.00 6 Electrovoice 635A 450.00 2 Calrad Mics 180.00 Stands:6 Desk Mic Stands 180.00 6 GooseNecks 72.00 4 Baby Booms 200.00 1 Doom with Wheels 100.00 5 Electrovoice Shock Mount Clamps 313A 50.00 5 Electrovoice Shock Mount Clamps 312 40.00 Speakers 300.00 Miscellaneous: Sawyer 500 13 Slide Projector with 40,slide tray Comp. Video CVC - 2500 videocassette eraser 125.00 345.00 $29,316.00 ***Shared with Local Origination. ;,PJ has priority use. 51f PORTABLE EQUIPMENT*** 2 Sony 1800 Color Cameras 7,000.00 (with viewfinders, cases, cables) 2 Sony 4800 3/4 VCRs with AC adapter 9,000.00 2 Sony 4800 Porta -Braces 280.00 2 Davis/Sanford. Tripods 300.00 1 VC 100 Battery Charger 300.00 5 DP -60 Portable Batteries 300.00 1 Audio Tec Lavalier Mic 55.00 1 Sony 3800 3/4" Portable VCR 2,400.00 1 Sony 3800 3/4" Porta -Brace 100.00 2 Sony 25' Camera Extension Cable 132.00 TOTAL $19,867.00 ***Shared with Local Origination. 51g L(.cgt has priority use. APPENDIX F CONSTRUCTION PRACTICES For reliability, all of ACC's cable distribution syst will be powered by battery-operated standby power supplies capable of up to four hours of standby operation. ACC's hl will have engine -generator standby power. All distribution active and passive electronic equipment will be enclosed in corrosion -resistant aluminum alloy housings. These housings incorporate a bolt .closure system to provide ready access for maintenance and, in conjunction with the housing's environmental and electromagnetic gaskets, ensure the housing's RF anc4 environmental integrity. In the rebuild of the cable system, further reliabili and safety is guaranteed by ACC's use of only the highest quality,latest design equipment and cable, and by the use of surge protectors in all trunk and feeder amplifiers. T Mitek TR -1 will be used to ensure constant monitoring and rapid detection and location of signal leakage in the new plant. Every trunk amplifier will contain, automatic gain control and automatic slope control circuitry to maintain levels over the varying temperature conditions which exist in Ithaca. APPCNNIX G OWNERSHIP INFOPJ1ATION American Community Cablevision is a division of American Television and Communications Corporation (ATC) and has no separate legal status or existence. Its resources and existence are at the disposal of ATC management. subject to contractual commitments by ATC to perform certain long- term contracts within the present divisional structure. Its assets are legally available for the satisfaction of debts of the entire corporation and its debts may result in claims against other assets of ATC. The division has material transactions with ATC. No debt or equity is directly associated with American Community Cablevision. Tine, Inc. has a controlling• interest in the voting stock of ATC. 1988 AFFIRMATIVE ACTION POLICY STATEMENT ,a Ai fit n nano • Antrncan It.Irvi :inn R Cuunnuuu:alunts Cutpurahun Corporate Headquarters 160 Inverness Drive West Englewood. Colorado 80112 303 799-1200 American Television and Communications Corporation (ATC) reaffirms its commitment to take Affirmative Action in providing equal opportunities for employment and advancement to qualified individuals without regard to race, color, sex, national origin, religion, age, ancestry, medical condition, creed, marital status, sexual orientation, handicap or status as a disabled or • Vietnam -era veteran. This commitment is a result of ATC's acceptance of Equal Employment Opportunity (EEO) and Affirmative Action as a social obligation and an economic and business necessity. ATC's policy, which has the steadfast support of each person in management, ensures equal opportunities for all individuals through the development and administration of equitable personnel practices and actions in areas such as recruitment, hiring, compensation, benefits, training and development, educational assistance, transfers, lay offs, returns from layoffs, promotions, discipline, company -sponsored recreation and social activities. The commitment espoused by ATC extends beyond a merely "neutral policy" and requires the ongoing efforts of all employees to achieve successful results. Accordingly, managers will share the responsibility of establishing Affirmative Action goals designed to correct any inequities found to exist in any area of employment at ATC. Each system and corporate department will submit reports to the Director of Employee Relations on a semi-annual basis. This information will be consolidated and analyzed to determine trends and accomplishments. The Affirmative Action Plan, including goals and timetables, will be revised on an annual basis. The performance evaluations of ATC managers will take into account their acceptance and achievement of Affirmative Action goals. Successful performance on Affirmative Action goals willprovide positive benefits to ATC through full utilization and development of our human resources. Through our Affirmative Action Plan (AAP), we are taking positive steps to ensure that equal employment opportunities prevail. Elements of our written plan are available to all employees upon request. Anyone interested in reviewing this program should contact their respective Human Resources Director or Manager within the business unit, or any ATC division president or system manager. Trygv4( E. Q hren CEO and Ch • i rman oBoard Ptuvrdmtl 011191 ut.:tn•nl .lad udnnr 11ar1 I In :I • •: 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. 3.5 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 ofbroadcast 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. 3.6 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. 3.7 CITY means the City of Ithaca, New York. 3 3.8 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. 3.9 COMMENCE OPERATION means that time and date when operation of the Cable Communications System is considered to have commenced. 3.10 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. 3.11 COMMON COUNCIL means the mayor and council of the City of Ithaca. 3.12 COMMUNICATIONS POLICY ACT or CABLE ACT means the Cable Communications Policy Act of 1984 as it may be amended or succeeded. 3.13 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. 3.14 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. 3.15 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. 3.16 DISCRETE CHANNEL shall mean a channel which can only be received by the person and/or institution intended to receive signals on such channel. 3.17 DROP shall mean a connection from feeder cable the subscriber/user television set, radio or other terminal. 3.18 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. 3.19 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 3.20 FCC means the Federal Communications Commission and any legally appointed or elected successor. 3.21 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. 3.22 FRANCHISE AREA means the entire City. 3.23 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. 3.24 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. 3.25 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. 3.26 GRANTOR means the City of Ithaca as represented by the Common Council acting within the scope of its jurisdiction. 3.27 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. 3.28 INQUIRY BY SUBSCRIBER means a request for general information about the Grantee's operation, services, programming, and/or rates. 3.29 INSTALLATION shall mean the connection of the system from feeder cable to subscribers' terminals. 5 3.30 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 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. 3.32 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. 3.33 LOCAL ORIGINATION CHANNEL means any channel designated for local origination. This channel may be used for commercial purposes. 3.34 signal, or a party to by visual or MONITORING • means observing a. communications the absence of a signal, where the observer is not the communication, whether the signal is observed electronic means, for any purpose whatsoever. 3.35 NARROWCASTING shall distribute cable programming to segments of the cable subscribers. mean the ability to a particular segment or 3.36 PERSON means an individual, association, organization,. corporation or successor Transferee of said individual, association, organization or corporation. partnership, any lawful partnership, 3.37 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. 3.38 PROGRAMMER means any person nr 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. 3.39 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 3.40 PUBLIC PROPERTY shall mean any real property owned by the City other than a highway, sidewalk, easement or dedication. 3.41 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. 3.42 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. 3.43 RESIDENT means any person residing in the City as otherwise defined. by applicable law. 3.44 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. 3.45 SALE shall include any sale, exchange, barter or offer for sale. 3.46 SCHOOL means any public or nonprofit educational institution including primary and secondary schools, colleges and universities, both public and private. 3.47 SERVICE AREA means the entire geographic area within the Franchise territory. 3.48 SERVICE REQUEST means a request from the subscriber for a technical service, such as installation, adjustment for poor picture quality and converter repair. 3.49 STATE means the state of New York. 7 3.50 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. 3.51 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. 3.52 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. 3.53 TRUNK LINE means the major distribution cable used in cable communications, which divides into feeder lines which are tapped for service to subscribers. 3.54 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. 3.55 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 Ordinanceand 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 to as good made so as convenience. and Public Grounds and shall restore the areas a condition or better. Such removal shall be not to conflict with public health, safety or 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. Change in control means transfer. 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 consentwill 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, 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.. 11) 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 tosubstantially follow the :procedures :for disconnecting a subscriber, as set forth .in this Ordinance and/or the Franchise, the subscriber whowas 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 Mdamages. 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. 5.9 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. 5.10 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 personaljurisdiction 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. 5.11 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. 5.12 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. 5.13 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. 2.0 5.14 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. 5.15 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. 5.16 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. 5.17 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 5.18 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. 5.19 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. 5.20 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. 5.21 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. 5.22 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. 5.23 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 termsof this Ordinance and other pertinent provisions of law. 22 5.24 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. 5.25 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 andrenewals 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 ofthe .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. 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 theprovisions 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 at 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 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 establishrequirements 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 chargelby the Grantee. 8.9 accuracy of location of ways, where excavation. 8.10 appropriate reasonable excavation, CITY MAPS. any maps existing necessary, The City does not guarantee the showing the horizontal or vertical substructures. In public -rights -of - the location shall be verified by CONSTRUCTION NOTICE. Grantee shall give notice to the City and residents withina period of time of proposed construction, 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 Grantees 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 permi-ssion 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 forsuch 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 and 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 anemergency 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 Systemm-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 of 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 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