HomeMy WebLinkAboutMN-CC-1988-10-05LO
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COMMON COUNCIL PROCEEDINGS
Regular Meeting 7:00 P.M. October 5, 1988
PRESENT:
Mayor Gutenberger
Alderpersons (9) - Booth, Cummings, Johnson, Nichols, Hoffman,
Killeen, Lytel, Peterson, Romanowski
ABSENT:
Alderperson Schlather (in court in Watkins Glen)
OTHERS PRESENT:
City Attorney - Nash
City Clerk - Paolangeli
Deputy City Controller -
City Controller - Spano
Planning and Development
Youth Bureau Director -
Personnel Administrator
Fire Chief - Olmstead
City Planner - Jones
Cafferillo
Director - Van Cort
Cohen
- Baker
Board of Public Works Commissioner - Reeves
PLEDGE OF ALLEGIANCE:
Mayor Gutenberger led all present in the Pledge of Allegiance,to
the American flag.
ADDITIONS TO THE AGENDA:
Planning and Development Committee
Alderperson Cummings requested the addition of a resolution
regarding hydropower requesting Cornell University to lease land
and water rights at Ithaca Falls to the city.
No Council member objected.
INTERGOVERNMENTAL RELATIONS COMMITTEE
City Hall Annex Purchase Offer
Alderperson Cummings requested the addition of a resolution and a
purchase offer for the City Hall Annex.
No Council member objected.
UNFINISHED AND MISCELLANEOUS BUSINESS:
Police Issues
Alderperson Peterson requested the addition of a statement and
possible resolution on police issues.
No Council member objected.
PETITIONS AND HEARINGS OF PERSONS BEFORE COUNCIL:
Hydropower Project
Robert Hines, 417 N. Cayuga Street, .,spoke to Council regarding
the Hydropower Project. He stated that he is opposed to this
project because of prohibitive costs, problems with titles and
water rights and the ecological problems involved. He further
feels that the information Council is basing their decision on is
woefully inadequate and would hope that citizens would vote
against this proposal.
David Reuther, 1191 East Shore Drive, spoke to Council on the
hydropower issue and explained his reasons for objecting to this
proposal. At this point in time he feels there is not sufficient
economic advantage to Ithaca or a significant attempt by other
developers to build there to warrant damaging the scenic beauty
of Ithaca Falls.
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Farmers' Market
Anna Steinkraus, President of the Ithaca Farmers' Market, read a
letter from the Ithaca Centennial Commission and a letter from
the Ithaca Garden Club thanking the Market for the plantings and
flowers at their new site.
Ms. Steinkraus requested that Common Council proceed with a
long -term commitment for the Market at the present site.
RESPONSE TO THE PUBLIC:
Hydropower Protect
Alderperson Nichols responded to the public on the hydropower
issue. He commented that there is more information available on
the land and water rights than was indicated. He further stated
that if the city builds this plant there will be a provision for
access. He believes that other developers including Cornell are
interested in applying for this license and the only control
over this project would be for the city to develop this site.
City Planner Jones spoke regarding land and water rights for the
hydropower project.
REPORT OF CITY BOARDS COMMITTEES AND COMMISSIONS
Board of Public Works
Commissioner Reeves reported to the Council on the following:
Charter and Ordinance Agenda Item 17.2 - Amendment to Section
60 32, Maximum School Speed Limits -
Comm. Reeves stated that the Board requests that the above
resolution be changed to read 100 feet. She requested that the
Council use the recommendation from the Traffic Engineer which
reads as follows:
118. Fifteen (15) miles per hour adjacent to Belle Sherman School
and the Wilson Annex, on Cornell Street from 100 feet
north of Mitchell Street to 150 feet south of Valley
Road, on Elmwood Avenue from 100 feet north of Mitchell
Street to Valley Road, on Valley Road from Elmwood
Avenue to Cornell Street, on Ridgedale Road from 100
feet west of Elmwood Avenue to Elmwood Avenue, and on
Mitchell Street from 100 feet west of Elmwood Avenue to
100 feet east of Cornell Street."
Alderperson Booth commented regarding Charter and Ordinance
Agenda Item 17.2 "Maximum School Limits." He remarked that since
there is obvious confusion regarding this item he would remove it
from tonight's agenda.
Buffalo Street Bridge
Comm. Reeves reported that the Buffalo Street Bridge will be
closed for repairs for 3 weeks beginning on October 11th.
Skateboarding
Comm. Reeves reported that the Board of Public Works has a
resolution on the agenda for their next meeting to ban
skateboarding in Dewitt Park. She stated that the Board is
investigating the problem and talking with other cities to see
how they are handling the skateboarding issue.
COMMUNICATIONS FROM THE MAYOR:
Route 96
Mayor Gutenberger reported to the Council that the DEIS on Route
96 is at the printer and should be received within the next
month.
MAYOR'S APPOINTMENTS:
Acting Building Commissioner
Mayor Gutenberger requested approval of Council for the
appointment of Peter Dieterich as Acting Building Commissioner,
effective September 28, 1988, with a ten percent increase in
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salary, on top of his base pay, during the time that he is Acting
Building Commissioner.
Resolution
By Alderperson Booth: Seconded by Alderperson Romanowski
RESOLVED, That this Council approves the appointment of Peter
Dieterich as Acting Building Commissioner, effective September
28, 1988, with a ten percent increase in salary, on top of his
(4w" base pay, during the time that he is Acting Building
Commissioner.
Carried Unanimously
Resolution of Appreciation
By Alderperson Booth: Seconded by Alderperson Killeen
RESOLVED, That this Council extends its sincere appreciation to
Thomas Hoard for his years of service to the City of Ithaca.
. Carried Unanimously
LO Rental Housing Committee
Mayor Gutenberger reported on the Rental Housing Committee. At
Iq this time 18 names have been submitted and he is working on the
LO appointments to this committee. He would welcome more names.
m CITY ATTORNEY'S REPORT
Alderperson Killeen asked about the status of the Jason Fane
lawsuit regarding illegal occupancy at 705 East Buffalo Street.
City Attorney Nash responded that the arraignment was held last
Friday in City Court on the accusatory instruments and the case
was adjourned for two weeks. There is a pre -trial conference
being scheduled.
HUMAN SERVICES COMMITTEE:
Community Police Board
Alderperson Peterson reported
Commissioners came to the Human
There appears to be some conflict
the City of Ithaca Police rules.
the City Attorney for advice.
that 4 of the 5 Police
Services Committee meeting.
between the City Charter and
The committee will be asking
Grant Request to Criminal Justice Services
Alderperson Peterson reported that a group of alderpersons, city
employees, civic groups, etc. have been meeting with the
intention of putting together a grant request for some funds from
the Criminal Justice Service. The idea was to work with at -risk
children. The State was not interested in the proposal. The
group feels this is a valuable idea and will continue to meet to
put a proposal together.
Fire Department Budget
Alderperson Peterson reported on the Fire Department budget.
She stated there is a need for more personnel as regards to
safety and the working of the department. The Fire Chief,
firemen, and volunteers gave a two hour presentation to the Human
Services Committee.
Discussion followed on the floor on the budget process and how
priorities are set.
PLANNING AND DEVELOPMENT COMMITTEE:
Site Plan Review
Alderperson Cummings reported that this has been a joint Charter
and Ordinance and Planning and Development Committee effort.
There will be another joint meeting on October 12, 1988 at 7:00
p.m.
Emergency Planning Priorities
Alderperson Cummings reported that the Planning and Development
Committee reviewed those suggestions for emergency planning
priorities which were passed at the August 3 Common Council
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meeting, and attempted to impose some sort of priority order.
Hydropower - Request to Cornell for Lease of Land and Water
Rights
By Alderperson Cummings: Seconded by Alderperson Nichols
WHEREAS, the City of Ithaca, under license from the Federal
Energy Regulatory Commission, intends to construct and operate a
hydropower electric generating facility at Ithaca Falls, and
WHEREAS, Cornell University owns land and water rights required
for construction and operation of this hydropower facility, and
WHEREAS, the City is committed to construct the hydropower
facility with extreme care for environmental protection, public
safety and appearance of the surrounding area, and
WHEREAS, the City of Ithaca provides many services to Cornell
University without charge, and
WHEREAS, the City of Ithaca is willing, subject to the agreement
by Cornell University to the terms below, to permit Cornell to
continue to own its land and water rights indefinitely; now,
therefore, be it
RESOLVED, That the City of Ithaca requests Cornell to allow the
City free access to its land and water rights as required for the
construction and operation of a hydropower facility at Ithaca
Falls, and be it further
RESOLVED, That the City of Ithaca requests Cornell to lease to
the City the same land and water rights at a cost of one dollar
($1.00) per year for the life of the facility, and be it further
RESOLVED, That the Mayor is hereby directed to transmit this
request to the President and Board of Trustees of the University.
Discussion followed on the floor.
Resolution to Refer to Committees
By Alderperson Nichols: Seconded by Alderperson Johnson
RESOLVED, That this request to Cornell University be referred to
the Planning and Development Committee and the Hydropower
Commission.
Carried Unanimously
CHARTER AND ORDINANCE COMMITTEE
*17.1 Cable Ordinance Amendment
By Alderperson Booth: Seconded by Alderperson Peterson
WHEREAS, the City of Ithaca has undertaken to make certain
amendments to its "Cable Communications" Ordinance in order to
make it consistent with the Franchise Agreement with American
Community Cablevision, and
WHEREAS, the Charter and Ordinance Committee of Common Council
did review the proposed "Cable.- Communications" Ordinance
amendments at its meeting on September 15, 1988, and did
recommend passage of the amendments as shown on the marked -up
copy of the current Ordinance provisions, with inclusion of a
legal memorandum from the City Attorney regarding the legislative
intent of certain amendments, and
WHEREAS, the city's consideration of said "Cable Communications"
Ordinance has delayed the final execution of the Franchise
Agreement with American Community Cablevision, which may cause
delay in completion of the Cable System rebuild as provided in
the said Franchise Agreement; now, therefore, be it
RESOLVED, That the "Cable Communications" Ordinance amendments as
shown on the marked -up copy of the current Ordinance provisions
are hereby adopted, and be it further
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RESOLVED, That the legal memorandum of the City Attorney as shown
below to said marked -up copy is hereby adopted as the legislative
intent of Common Council in making the amendments therein noted,
and be it further
RESOLVED, That the City Attorney is directed to provide the City
Clerk a clean copy of said "Cable Communications" Ordinance
(400, including all adopted amendments, and be it further
RESOLVED, That American Community Cablevision shall have up to a
three month extension from the March 1, 1989 date provided in the
current approved Franchise Agreement in order to complete the
rebuild of the Cable System in the City of Ithaca.
City Attorney Nash's Memorandum
"TO Mayor Gutenberger
All Aldermen
LO FROM : Ralph Nash, City Attorney
Lo DATE : September 22, 1988
RE Cable Ordinance Amendments
m
Q The proposed Cable Ordinance Amendments were reviewed by the
Charter and Ordinance Committee of Common Council on September
15, 1988. Certain provisions are being deleted from the
Ordinance by these proposed amendments. This memo will confirm
the intention of the Committee and myself as legal counsel that
the following deletions were made only in order to make the
Ordinance neutral with regard to the items in question and not to
indicate a legislative denial of their provisions:
Former Section 4.7 "Police and Regulatory Powers Reserved."
Former Section 5.12 "Right to Purchase."
Section 5.2 "Regulatory Authority" - Former Subdivision (7)
regarding promulgation of rules and regulations applicable to
the terms of the Ordinance and Franchise."
Alderperson Booth explained the amendments.
Discussion followed on the floor.
Alderperson Booth thanked City Attorney Nash for all his work on
this ordinance.
Common Council members questioned City Attorney Nash regarding
the changes that were made in the ordinance particularly in
regards to "first purchase rights" in the event of sale or
purchase.
Atty. Nash explained that the decision was made by the
negotiating committee that the city realistically did not have a
desire to purchase the cable system. The cable company seemed
very concerned about that possibility and we negotiated that away
a for other things under the franchise. He also was of the opinion
that we were not negotiating away our rights to exercise eminent
domain powers, if we wanted to do that at some time. It is not
one hundred percent clear but it was felt that the legal
authority could be maintained in that case. Rather than
negotiate what that right of first purchase would be, fair market
value or the offer put in by someone else, we decided to back off
and rely on whatever eminent domain powers we have.
Alderperson Nichols stated for the record that the statement was
made by two attorneys on the committee that in fact the city
would have the right to exercise eminent domain even without the
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provision. The argument was that we weren't giving away
anything.
City Atty. Nash further pointed out that we aren't necessarily
saying we can't purchase it but we aren't obligating them to sell
it to us at the same price as someone else. He believes the city
does have provisions in place controlling the transfer if we
felt that someone ACC was transferring the franchise to was not
fit to run it, at that point we could exercise some authority.
Further discussion followed on the floor.
A vote on the resolution resulted as follows:
Ayes (8) - Booth, Nichols, Johnson, Cummings, Killeen,
Peterson, Hoffman, Lytel
Abstention (1) - Romanowski (conflict of interest)
Carried Unanimously
(Corrected copy of the Cable Ordinance is attached to the Minute
Book) *At the end of October 5, 1988 Minutes
An Ordinance Amending Section 60.32, Maximum School Speed Limits
of the City of Ithaca Municipal Code
Alderperson Booth withdrew this resolution to take back to the
Charter and Ordinance Committee for further review.
Alternate Side Parking - Report
Alderperson Booth reported that the Charter and Ordinance
Committee is still working on this issue. It is the opinion of
the Committee that the Department of Public Works efforts to hire
new parking personnel should be given a chance to get underway
and see how it impacts parking in the city.
Cluster Zoning Amendment - Report
Alderperson Booth reported that the Committee will have a
recommendation for Council to go to public hearing at the
November meeting of Council.
Smoking Ordinance Education Materials - Report
Alderperson Booth reported that the materials are being worked on
by the Committee. Although it is still not certain it appears
the Legislature will adopt statewide regulations when they come
back after the elections.
BUDGET AND ADMINISTRATION COMMITTEE;
*14.1 Police Department Authorized Equipment
By Alderperson Hoffman: Seconded by Alderperson Cummings
RESOLVED, That the authorized Equipment List of the Police
Department be amended to include the purchase of one desk, at a
cost not to exceed $510, as requested by the Police Chief, and be
it further
RESOLVED, That an amount not to exceed $510 be transferred within
the Police Department Budget from Account A3120 -105,
Administrative Salaries, to Account- A3120-205, Furniture and
Fixtures.
Carried Unanimously
*14.2 Audit
By Alderperson Hoffman: Seconded by Alderperson Peterson
RESOLVED, That the bills presented as listed on Audit Abstract
#18/1988, in the total amount of $47,271.28 be approved for
payment.
Carried Unanimously
*14.3 Sick Leave Settlement
By Alderperson Hoffman: Seconded by Alderperson Romanowski
RESOLVED, That those individuals not. covered by a Collective
Bargaining Agreement have the option of receiving all or part of
the applicable sick leave cash settlement, as an addition to
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October 5, 1988
regular salary during their final year of employment, or in a
lump sum payment upon retirement, and be it further
RESOLVED, That no such settlement of sick leave shall be paid
until after the employee has submitted a Letter of Commitment
which specifies the date of retirement.
Carried Unanimously
*14.4 Highway Improvements
By Alderperson Hoffman: Seconded by Alderperson Cummings
(towe RESOLVED, That an amount not to exceed $70,000 be transferred
from existing CHIP's money to Highway Account A5111 -487, Machine
Paving, for improvements on Cliff Street and Elmira Road, as
requested by the Board of Public Works.
Carried Unanimously
*14.5 Stewart Park Repairs
By Alderperson Hoffman: Seconded by Alderperson Cummings
RESOLVED, That an amount not to exceed $20,000 be transferred
LO from Account A1990, Restricted Contingency, to Stewart Park
Iq Account A7112 -435, Contractual Services, as requested by the
Lo Board of Public Works, for the following:
Reroof Pavilion and Bathhouse $15,000
m Repair and Upgrade Boathouse
Q Bathroom 5,000
$20,000
Discussion followed on the floor.
A vote on the resolution resulted as follows:
Carried Unanimously
*14.6 Youth Bureau Landscaping
By Alderperson Hoffman: Seconded by Alderperson Cummings
RESOLVED, That an amount not to exceed $10,000 be transferred
from Account A1990, Restricted Contingency, to Youth Bureau
Building Account A1623 -483, Construction Materials and Supplies,
to provide landscaping for the site, as requested by the Board of
Public Works.
Discussion followed on the floor.
A vote on the resolution resulted as follows:
Carried Unanimously
*14.7 Cass Park Maintenance Building
By Alderperson Hoffman: Seconded by Alderperson Romanowski
RESOLVED, That an amount not to exceed $40,000 be transferred
from Account A1990, Restricted Contingency, to Cass Park Account
A7182 -435, Contractual Service, to provide for a new Maintenance
Building, as requested by the Board of Public Works.
Carried Unanimously
*14.8 Fire Department Personnel Roster
By Alderperson Hoffman: Seconded by Alderperson Johnson
RESOLVED, That the 1988 Personnel Roster of the Fire Department
be amended, effective October 10, 1988, as follows:
Add - 1 Account Clerk Typist Position - 35 Hours
Delete - 1 Account Clerk Typist Position - 20 Hours
Carried Unanimously
*14.9 Fire Department Personnel Roster
By Alderperson Hoffman: Seconded by Alderperson Nichols
RESOLVED, That the 1988 Personnel Roster of the Fire Department
be amended by adding 1 Assistant Fire Chief for fire training
purposes, subject to classification of the position by the Civil
Service Commission and the establishment of a salary range, to be
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determined by the Personnel Administrator.
Carried Unanimously
*14.10 Fire Department Appropriations
By Alderperson Hoffman: Seconded by Alderperson Peterson
RESOLVED, That an amount not to exceed $31,000 be transferred
from Account A1990, Restricted Contingency, as requested by the
Board of Fire Commissioners, to cover over expenditures as
follows:
A3410 -476, Equipment Maintenance $13,000
A3410 -477, Equipment Parts and Supplies 18,000
$31,000
Carried Unanimously
*14.11 Computer Acquisition Capital Project
By Alderperson Hoffman: Seconded by Alderperson Romanowski
WHEREAS, Capital Project No. 211, Computer Acquisition, was
authorized and funded for $130,000 to purchase a system for the
Finance Department, and
WHEREAS, the Finance Department has requested that Common Council
increase the authorization by $30,000 to allow for upgrading the
system; now, therefore, be it
RESOLVED, That this Common Council approves the request of the
Finance Department to increase the authorization, and be it
further
RESOLVED, That such increase be funded as follows:
A. Issuance of Bond Anticipation
Notes
B. Transfer from
Contingency
A1990, Unrestricted
$28,500
1,500
30,000
Carried Unanimously
*14.12 Traffic Violations Fines
By Alderperson Hoffman: Seconded by Alderperson Killeen
RESOLVED, That the policy for levying penalties on delinquent
traffic violations fines be amended as follows:
A. Penalty to be added after fifteen days
B. Penalty to be added after thirty days
C. Penalty to be added after sixty days
D. Upon submission of uncollectible fines
the collection agency for enforcement,
to exceed thirty -five percent of the t,
fine will be added to cover collection
Discussion followed on the floor.
$5.00
10.00
15.00
to
an amount not
Dtal delinquent
agency fees.
Resolution to Refer to Committee
By Alderperson Booth: Seconded by Alderperson Johnson
RESOLVED, That the matter of traffic violation fines be referred
to the Charter and Ordinance Committee for review.
Carried Unanimously
*14.13 Budget Appropriation Transfers
By Alderperson Hoffman: Seconded by Alderperson Johnson
RESOLVED, That the City Controller be empowered to make transfers
within the 1988 Budget Appropriations as may be needed.
Carried Unanimously
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*14.14 Hydropower Public Information
By Alderperson Hoffman: Seconded by Alderperson Romanowski
WHEREAS, six thousand dollars ($6,000) has been previously
allocated for Hydropower Public Information, and
WHEREAS, eight thousand eight hundred twenty dollars ($8,820) has
been allocated for preparation of an Erosion and Sedimentation
Control Plan, and
WHEREAS, an 18 -month extension has been granted for submission of
the Erosion and Sedimentation Control Plan; now, therefore, be it
RESOLVED, That four thousand dollars ($4,000) be reallocated from
Erosion and Sedimentation Control Plan to Hydropower Public
Information for a total of ten thousand dollars ($10,000).
Discussion followed on the floor.
Amending Resolution
By Alderperson Nichols: Seconded by Alderperson Cummings
RESOLVED, That the following four Whereas clauses be added to the
LO resolution:
"WHEREAS, Common Council has placed a referendum on the November
M 8, 1988 ballot asking for authorization for the City of Ithaca to
Q proceed with hydropower development at Ithaca Falls, and
WHEREAS, Common Council believes that voters should be alerted
to the nature of the referendum and be given sufficient factual
information so as to cast a well informed vote, and
WHEREAS, federal law permits any qualified entity to develop
hydropower at Ithaca Falls, and
WHEREAS, Common Council believes that it is in the best interest
of the public for the City to be the developer of hydropower at
Ithaca Falls;"
Alderperson Nichols explained that the purpose of his amendment
was to find out what Common Council's position is on this issue.
Discussion followed on the floor.
City Attorney Nash gave his opinion on information material to be
prepared for the public. He stated that you cannot use public
money to convey favoritism , partisanship, partiality, approval
or disapproval. In other words, you can't use public money to
sell the referendum.
Further discussion followed on the floor.
A vote on the amendment resulted as follows:
Ayes (7) - Booth, Lytel, Cummings, Romanowski, Nichols,
Johnson, Killeen
Nays (2) - Peterson, Hoffman
Carried
Main Motion As Amended
A vote on the Main Motion as Amended resulted as follows:
Ayes (7) - Booth, Lytel, Cummings, Romanowski, Nichols,
Johnson, Killeen
Nays (2) - Peterson, Hoffman
Carried
*14.15 West Hill Master Plan
By Alderperson Hoffman: Seconded by Alderperson Cummings
WHEREAS, the Common Council has declared creation of a West Hill
Master Plan an emergency planning priority, and
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October 5, 1988
WHEREAS, an amount of $10,000 from Planning Department Account
A8020 -435, Contractual Services, can be made available for a West
Hill Master Plan; now, therefore, be it
RESOLVED, That an amount not to exceed $25,000 be allocated and
that an additional $15,000 be transferred from Account A1990,
Restricted Contingency, to Planning Department Account A8020 -435,
Contractual Services, and be it further
RESOLVED, That the city enter into a contract with Trowbridge and
Trowbridge to provide professional services for development of a
West Hill Master Plan, not to exceed $25,000, subject to review
by the City Attorney.
Discussion followed on the floor.
A vote on the resolution resulted as follows:
Ayes (8) - Romanowski, Lytel, Killeen, Cummings, Hoffman,
Peterson, Nichols, Johnson
Nay (1) - Booth
Carried
INTERGOVERNMENTAL RELATIONS COMMITTEE
City Hall Annex - Schlough Proposal
Alderperson Cummings presented a purchase offer for the City Hall
Annex and the following resolution to Council:
WHEREAS, the Common Council of the City of Ithaca by resolution
duly adopted at its regular meeting on October 7, 1987 did
declare the City Hall Annex, Tax Map Number 70 -5 -24, 123 South
Cayuga Street to be surplus property; and did authorize and
direct the Ithaca Urban Renewal Agency and its Executive
Director to solicit proposals for the sale of the Annex, to
evaluate said proposals according to the stated criteria of
purchase price, proposed reuse and appropriateness of any
planned alterations to the exterior of the structure, and
recommend to Common Council its selection of purchaser for
Council's review and action, and
WHEREAS, the Ithaca Urban Renewal Agency did duly solicit and
evaluate proposals for the sale of the Annex, and did recommend
the sale of the subject property to Charles Schlough in
accordance with the terms and conditions of his proposal dated
February 1, 1988, said recommendation being accepted by the
Common Council at their April 6, 1988 meeting, and
WHEREAS, the Common Council at their August 3, 1988 meeting
authorized and directed the Intergovernmental Relations Committee
of Council to meet with Charles Schlough to negotiate a purchase
offer for the Annex, and to report their findings to the Council;
now, therefore, be it
RESOLVED, That the Intergovernmental Relations Committee
recommends the sale of the City Hall Annex to Charles Schlough
for the amount of $245,000, in accordance with the Purchase
Proposal, and that the Common Council hereby accepts the
Committee's recommendation and authorizes and directs the Ithaca
Urban Renewal Agency and its Executive Director to publish the
appropriate notification of the sale of the Annex in compliance
with City Charter Section 3.10 (40) so that the Common Council
can consider the actual sale of the City Hall Annex to the person
and upon the conditions noted at its regular meeting on December
7, 1988.
Alderperson Cummings gave background information on the
resolution.
Discussion followed on the floor.
"'i
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26:3
Motion to Refer to
By Alderperson Cum
RESOLVED, That the
Annex be referred
for further review
11 October S, 1988
Committee
;Wings: Seconded by Alderperson Johnson
resolution regarding the sale of the City Hall
to the Intergovernmental Relations Committee
and report back to the Common Council.
Carried Unanimously
UNFINISHED AND MISCELLANEOUS BUSINESS:
Police Issues
Alderperson Peterson read the following statement to Council:
"It has been more than a month since the allegations of police
corruption have surfaced. In this time, no official statement or
attempt to publicly address these concerns have been proposed by
Common Council. I have spoken individually to some officers
about my regret for what happened but speaking publicly is the
best way to address an already very public issue. Allegations
have been aimed at the police and there have been implications
LO that the entire Common Council has concurred. I would like to
LO speak to these issues and, perhaps, have Council concurrence with
my summary statement.
LO
First of all, I deeply regret the public nature of these
M allegations. As Council members we may each be accused of
d lambasting a department head for one thing or another, but it is
inexcusable to charge or implicate an entire department of
corruption. While we may have accused a department of slowness
or inefficiency, never have we said that a whole department
should be investigated for illegal activities. I, among other
Council members, have not heard reports of police being on the
take or corrupt. One and a half years ago during a public
hearing on the police department, no one charged corruption. If
and when an individual officer is named as a person who may be
suspect and if that suspicion is not frivolous and may have
merit, then I would support an immediate investigation in to the
charges. If, however, these charges are non - specific and are
perceptions, these too should be dealt with. In this case, the
citizens can speak with their Council representatives and discuss
their problems about the department. Then the Council and the
police department leadership can work constructively to improve
performance. At this point, however, I see no reason for a
department -wide investigation for illegal activity. What I see
is a need for is something that I believe the police department
has also asked for - that is a spirit of working together (City,
police, and citizens), a review and updating of departmental
rules and regulations and policies, adequate training and
continuing education in all aspects of police work from use of
equipment to human relations, strong leadership, and a clearly
defined role for the Community Police Board. Additionally, much
of the discussion has arisen over the drug problem- dealing and
using- and this issue must be a top priority for our City.
Already a working group of community members, professionals,
educators, and police have been discussing creative solutions to
the problem. This approach, plus emphasizing the drug hotline
and how to report activity, must be aggressively followed.
In summary it should be made clear that (1) the Common Council of
the City of Ithaca has not determined that corruption and illegal
activity is dominating the police department. (2) Evidence has
not been presented to support such an allegation. (3) Any
individual charges with basis will be investigated. (4) Getting
to the sources of perceptions of corruption and then working to
improve police community relations is of utmost importance. (5)
working together as Council, police, and citizens to provide the
best services that our community deserves, to restore confidence
in each other, and to battle the drug problem should be among our
top goals.
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12 October 5, 1988
Motion to Refer to Committee
By Alderperson Booth: Seconded by Alderperson Lytel
RESOLVED, That the Alderperson Peterson's statement regarding the
Police Department be referred to the Human Services Committee.
Discussion followed on the floor.
A vote on the referral motion resulted as follows:
Carried Unanimously
ADJOURNMENT:
On a motion the meeting adjourned at 9:17 p.m.
am:
Callista F. Paolangel /i /John C. Gutenber`er
City Clerk Mayor
a
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 Com
and upgraded
term so that
operation of
the maximum
facilities.
munications System should be improved
if necessary during the Franchise
the new facilities necessary for the
this system shall be integrated to
extent possible with existing
(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.
MOo
(e) That the public,
needs for access
System are met.
SECTION 2 TITLE OF ORDINANCE
educational, and governmental
to the Cable Communications
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:
Pa
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(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.
3.7 CITY means the City of Ithaca, New York.
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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
(boo"
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 of broadcast signals,
public, educational and governmental access channels, and
local origination channels, covered by the regular monthly
charge paid by all subscribers to a particular service tier
including subscriber terminal charges and related deposits.
3.6 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.
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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 . to
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.
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_,.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 GRA
person(s), partnership(s),
corporations(s), association(s),
organization(s) of any kind which
Franchise by the City, and its
or Assignee.
'4TEE means the natural
domestic and foreign
joint venture(s), or
has been legally granted a
lawful successor, Transferee
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
directly or indirectly
directly or indirectly
Cable Communications S,
subsidiaries in which the
REVENUES means all revenue derived
by the Grantee, and revenue derived
through services provided via the
j,stem by Grantee's affiliates and
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.
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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 MONITORING means observing a communications
signal, or the absence of a signal, where the observer is not
a party to the communication, whether the signal is observed
by visual or electronic means, for any purpose whatsoever.
3.35 NARROWCASTING shall mean the ability to
distribute cable programming to a particular segment or
segments of the cable subscribers.
3.36 PERSON means an individual, partnership,
association, organization, corporation or any lawful
successor Transferee of said individual, partnership,
association, organization or corporation.
3.37 PLANT MILE means
cable as measured on the
pole or pedestal to pedestal.
a linear mile of strand - bearing
street of easement from pole to
3.38 PROGRAMMER means any person or entity who or
which produces or otherwise provides program material or
information for transmission by video, audio, digital or
other signals, either live or from recorded traces or other
storage media, to users or subscribers by means of the Cable
Communications System.
3.39 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.
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D
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.
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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 (50) 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
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A. GRANT OF AUTHORITY. Pursuant to the authority of
the Charter of the City and subject to the terms and
conditions set forth herein, the Common Council of the City
of Ithaca can grant revocable and non - exclusive Franchises,
acting pursuant to the City's applicable Charter provisions,
Ordinances, rules and regulations to construct and operate a
Cable Communications System in, under, over, along, across
or upon the Streets and Public Grounds within the City of
Ithaca for the purpose of reception, transmission,
collection, amplification, origination, distribution or
redistribution of a audio, video, data, or other signals and
for the development of broadband telecommunication services
in accordance with the laws of the City of Ithaca, the State
of New York, and United States of America. In the event
that City shall grant to the Grantee a nonexclusive,
revocable Franchise to construct, operate, and maintain a
Cable Communications System within the City, said Franchise
shall constitute both a right and an obligation to provide
the services of a Cable Communications System as regulated
by the provisions of this Ordinance and the Franchise. The
Franchise shall include by reference those provisions of the
Grantee's proposal that are finally negotiated and accepted
by the City and Grantee.
B. NON - INTERFERENCE. In exercising rights pursuant
hereto, Grantee shall not endanger or interfere with the
lives of persons, interfere with any installations of the
City, any public utility serving the City or any other
person permitted to use the Streets and Public Grounds nor
unnecessarily hinder or obstruct the free use of the Streets
and Public Grounds. The grant of one Franchise does not
establish priority for use over the other present or future
permit or Franchise holders or the City's own use of the
Streets and Public Grounds. The Common Council of the City
shall at all times control the distribution of space in,
over, under or across all Streets or Public Grounds and
occupied by the Cable Communications System. All rights
granted for the construction and operation of the Cable
Communications System shall be subject to the continuing
right of the Common Council to require such reconstruction,
relocation, change of discontinuance of the appliances used
by the Cable Communications System in the streets, alleys,
avenues, and highways of the City, as shall in the opinion
of the Common Council be necessary in the public interest.
C. NON - EXCLUSIVITY. Any Franchise is non - exclusive
and shall not affect the right of the Common Council to
grant to any other person a grant or right to occupy or use
the streets or portions thereof, for the construction and
operation of a Cable Communications System within the City
or the right of the City to permit the use of the Streets or
Public Grounds or of the City for any purpose whatever. No
privilege or power of eminent domain is bestowed on Grantee
by the grant of a Franchise.
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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
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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
case of fire or disaster
necessary in the reasonable
move any of the wires, c
appurtenances of the Cable
shall have the right to do
of Grantee.
OF PLANT. If at any time, in
in the City, it shall become
judgment of the City to cut or
ables, amplifiers, appliances or
Communications System, the City
so at the sole cost and expense
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 danger
shall be made in
event that Grantee
within a reasonable
remove or relocate
Grantee.
aus to
as good
of ter
time,
the same
life or proper
a condition or
notice, fails or
the City shall
at the sole cost
ty. Restoration
better. In the
refuses to act
have power to
and expense of
4.10 REMOVAL OR ABANDONMENT. Upon termination of the
Franchise by passage of time or otherwise, and unless
Grantee transfers the Cable Communications System to a
subsequent Grantee approved by the Common Council, Grantee
shall remove its supporting structures poles, transmission
and distribution systems, and all other appurtenances from
the Streets and Public Grounds and shall restore the areas
to as good a condition or better. Such removal shall be
made so as not to conflict with public health, safety or
convenience. Removal shall be completed within twelve (12)
months after such termination. At that time the City may
deem any property not removed as having been abandoned.
Such property may then by removed at the option of the City
at Grantee's expense less any recoverable salvage value.
4.11 NO WAIVER OF RIGHTS. No course of dealing
between the Grantee and the City nor any delay on the part of
the City in exercising any rights hereunder shall operate as. a
waiver of any such rights of the City or acquiescence in the
actions of the Grantee in contravention of such rights
except to the extent expressly waived by the City or expressly
provided for in the Franchise.
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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 consent will not be
unreasonably withheld. For the purpose of determining
whether it shall consent to such change, transfer, or
acquisition of control, the City may inquire into the legal,
financial, character, technical and other public interest
qualifications of the prospective controlling party, and the
Grantee shall assist the City in any such inquiry.
Failure to provide all transfer related information
reasonably requested by the City as part of said inquiry
shall be grounds for denial of the proposed change,
transfer or acquisition of control.
D. ASSUMPTION OF CONTROL. The City agrees that any
financial institution having a pledge of the Franchise or
its assets for the advancement of money for the construction
and /or operation of the Franchise shall have the right to
notify the City that it or its designees satisfactory to the
City will take control and operate the Cable Communications
System. Further, said financial institution shall also
submit a plan for such operation that will insure continued
service and compliance with all Franchise obligations during
the term the financial institution exercises control over
the system. The financial institution shall not exercise control
over the system for a period exceeding one year, unless
extended by the City at its discretion and during said period
of time it shall have the right to petition for transfer of the
Franchise to another Grantee. If the City finds that such
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transfer, after considering
technical and other public
applicant is satisfactory, t
the rights and obligations of
interest. The consent of the
unreasonably withheld.
the legal, financial character,
interest qualifications of the
he City will transfer and assign
such Franchise as in the public
City to such transfer shall not be
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.
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(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.
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D
O
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:
(400-e (1) the nature of the complaint or problem which
precipitated the special tests;
(2) the system component or area tested;
(3) the equipment used and procedures employed in
testing;
(4) the method, if any, in which such complaint or
problem was resolved; and
(5) any other information pertinent to said tests and
analysis which may be required.
15
The City may require that tests be supervised or
conducted by a City staff member or a professional engineer
who is not an employee or agent of the Grantee. Grantee
shall reimburse the City for the costs of such engineer if
the tests performed shows that the quality of service is
below the standards set forth in this Ordinance or the
Franchise.
5.6 LIQUIDATED DAMAGES. For the violation of any of
the following provisions of this Ordinance, the City shall
notify the Grantee in writing of the violation, and the
Grantee shall be allowed not less than thirty (30) days, or such
greater amount of time as the City may specify, to correct
such violation. In the event the Grantee fails to correct the
violation, the City will be entitled to collect
liquidated damages according to the schedule listed below.
Such liquidated damages if not paid by the Grantee, shall be
chargeable, to the extent available, to the letter of credit
or bond tendered by Grantee within the aforesaid period of
time. These liquidated damages shall be in addition to and
not a limitation upon the other penal provisions of this
Ordinance, including penalties or revocation, or other
statutorily or judicially imposed penalties or remedies.
(1) For failure to complete construction and
installation in accordance with the Franchise,
$100.00 per day.
(2) For failure to submit reports or supply data in
accordance with this Ordinance, $10.00 per day for
each day that such noncompliance continues.
(3) For failure to test, analyze and report on the
performance of the Cable Communications System in
accordance with this Ordinance above, $25.00 per
day for each day, or part thereof, that such
noncompliance continues.
(4) For failure to provide the capital equipment, and
facilities, and services for public, educational
and governmental access, as specified in the
Franchise, $75.00 per day, or part thereof, that
such noncompliance continues.
The City retains the right, at its sole option, to
reduce or waive any of the above - listed penalties where
extenuating circumstances or conditions beyond the control
of the Grantee are deemed to exist. The Common Council or
its designee shall determine the City's willingness to
reduce or waive any of the above- listed penalties.
16
L
5.7 CONSUMER REMEDIES. In order to promote compliance
with this Ordinance and the Franchise, cable communications
subscribers under the Franchise shall have the following
rights and remedies in addition to any other remedies which
may be available as a matter of law or equity to subscribers
or others affected by the acts or omissions of the cable
company. For example, this section is not meant to limit
remedies available to subscribers under applicable laws
governing consumer fraud or to limit remedies which may be
available if as a consequence of the acts or omissions of
the Grantee a resident loses utility services. Similarly,
the remedies specified are not meant to limit any authority
subscribers may have to enforce other terms of the Franchise
against the Grantee.
This section is in addition to any damages, remedies or
other action which the City may take pursuant to its rights
under the Franchise, or pursuant to its general police
powers, or in the exercise of its rights under cable
consumer Ordinances or regulations which exist now or may be
adopted during the term of this Ordinance.
(1) If the Grantee fails within ten days to pay a
submitted repair bill on any damage it causes to
property (including damage which occurs during the
course of stringing or burying cable or repairing
cable), the owner of the property shall be
entitled to recover treble damages, and in any
event no less than $100, for the period when the
property remains in such unrepaired or unsafe
condition. The Grantee shall be deemed to have
left the property in an unrepaired or unsafe
condition if the Grantee fails to repair damage to
the property or to eliminate the unsafe condition
within 24 hours after causing such property to be
damaged or after creating the unsafe condition.
(2) If the Grantee fails to provide any notice which
may be required by the City, the subscriber shall
be entitled to recover treble damages for such
failure.
(3) If the Grantee violates the privacy rights of any
subscriber the subscriber shall be entitled to
receive treble damages, and in any event no less
than $500, for each such violation.
(4) In any event where the City determines that the
Grantee has improperly discriminated in its rates
and charges for service, the City after giving the
Grantee notice of Hearing and an opportunity to be
heard, shall identify the applicable non-
17
discriminatory rate; the subscribers which have
been adversely affected by the discrimination
shall be entitled to a refund equal to treble any
amounts paid over the nondiscriminatory rate plus
interest at the prime rate.
(5) The Grantee shall keep a record of the date and
time it receives requests for service which
require it to obtain access to the home of a
subscriber or potential subscriber, and shall also
keep a record of the appointments made with such
subscriber or potential subscribers to provide
service. Any occasion on which the Grantee or its
agent does not cancel the appointment with the
subscriber and fails to arrive at the home of the
subscriber or potential subscriber during the
appointment period shall be considered a missed
appointment. The subscriber or potential
subscriber with whom the appointments were missed
shall be entitled to $50 damages for each
appointment missed.
(6) If the Grantee fails to substantially follow the
procedures for disconnecting a subscriber, as set
forth in this Ordinance and /or the Franchise, the
subscriber who was improperly terminated shall be
entitled to receive treble damages.
(7) If a cable subscriber does not receive service for
more than a four hour period, the affected
subscriber shall be entitled to recover treble
damages.
In addition to the foregoing, if any subscriber
is required to bring judicial proceedings to enforce his /her
rights and remedies set forth herein, and is ultimately
successful in such judicial proceedings, then that
subscriber is entitled to recover all reasonable attorney's
fees and expenses incurred in the prosecution of such
judicial proceedings as fixed by the Court. Notwithstanding
anything herein to the contrary, if the Grantee notifies the
subscriber in writing not less than ten days before the
initial appearance in any judicial proceeding that it will
not use an attorney in that proceeding, and thereafter does
not use an attorney, then the subscriber should not be
entitled to recover any attorney fees and expenses.
5.8 DETERMINATION OF BREACH. In the event that the
City has reason to believe that Grantee has defaulted in the
performance of any provision of this Ordinance or the Franchise
is
191,
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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
provided pursuant to
without limitation the
letter of credit;
foreclosure shall be
reasonably determines
default and shall in
expenses incurred in
finding hearing.
any part of the security
this Ordinance, including
performance bond and /or the
provided, however, the
in such amount as the City
is necessary to remedy the
elude payment of all City
connection with the fact-
(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 personal jurisdiction of said court
for the entry of any judgment and for the resolution of any
dispute, action, or suit arising in connection with the
entry of such judgment.
5.11 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.
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AML-
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 (50) 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.
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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
required are ni
this Ordinance,
the date due
the prime rate
depository bank.
PAYMENT. In the event that the fees herein
Dt tendered on or before the dates fixed in
interest due on such fee shall accrue from
at an annual rate of three percent (3a) above
or rates of interest, at the City's primary
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 (30) 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 terms of this Ordinance and
other pertinent provisions of law.
22
D.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 and renewals thereof, at its
cost and expense, and file with the City, a corporate surety
bond in an amount specified in the Franchise to guarantee
the faithful performance of the Grantee of all its
obligations provided under this Ordinance and the
Franchise. Failure to timely obtain, file and maintain said
bond shall constitute a violation of this Ordinance.
B. CONDITIONS. The performance bond shall provide the
following conditions:
(1) There shall be recoverable by the City jointly and
severally from the principal and surety, any and
all fines and penalties due to the City and any
and all damages, losses, costs, and expenses
suffered or incurred by the City resulting from
the failure of the Grantee to: faithfully comply
with the provisions of this Ordinance and the
Franchise; comply with all lawful orders, permits
and directives of any City agency or body having
jurisdiction over its acts or defaults; pay fees
due to the City; pay any claims due the City as
resulting from judicial action; pay any claims,
liens or taxes due the City which arise by reason
of the construction, operation, maintenance or
repair of the Cable Communications System. Such
losses, costs and expenses shall include but not
be limited to attorney's fees and other associated
expenses.
23
(2) The total amount of the bond shall be forfeited in
favor of the City in the event:
(a) The Grantee abandons the Cable Communications
System at any time during the term of the
Franchise or any extension thereto;
(b) The Grantee assigns the Franchise without the
express written consent of the City.
C. REDUCTION OF BOND. Upon written application by the
the amount
Grantee, the City may, at its sole option, permit
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
no application
bond at any time thereafter. However,
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
faithfully comply with the
credit if the Grantee fails to:
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.
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J
Cool
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
BOND. No later than
Grantee by certified
pursuant to paragraph
the letter of credit
equal to the amount
replenishment of such
performance bond shall
this Ordinance.
OF LETTER OF CREDIT AND PERFORMANCE
thirty (30) days after mailing to the
mail notification of a withdrawal
F above, the Grantee shall replenish
and /or performance bond in an amount
so withdrawn. Failure to make timely
amount to the letter of credit and /or
constitute a substantial violation of
I. NON - RENEWAL, ALTERATION OR CANCELLATION OF LETTER
we 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 bond and letter of credit provided
subject to reasonable increases at the end
(3) year period of the Franchise, applica
three year period, upon the determination
Inflation compensation shall be computed in
the regional Consumer Price Index.
the amounts of
for herein, are
of every three
Dle to the next
of the City.
accordance with
K. The City shall not seek recovery from the
Performance Bond or the Letter of Credit until it has
provided the Grantee with thirty (30) days to cure any
default.
6.2 LIABILITY AND INSURANCE.
A. Prior to commencement of construction, but in no
event later than sixty (60) days after the effective date of
the Franchise and thereafter continuously throughout the
duration of the Franchise and any extensions or renewals
thereof, the Grantee shall furnish to the City, certificates
of insurance, approved by the City, for all types of
insurance required under this Section. Failure to furnish
said certificates of insurance in a timely manner shall
constitute a violation of this Ordinance.
25
B. To the extent provided in the franchise agreement any
insurance policy obtained by the Grantee in compliance with
this Section shall be filed and maintained with the City
Clerk during the term of the Franchise, and may be changed
from time to time to reflect changing liability limits
and /or to compensate for inflation.
C. Neither the provisions of this Section or any
damages recovered by the City hereunder, shall be construed
to or limit the liability of the Grantee under any Franchise
issued hereunder for damages.
D. The Grantee shall provide the City with written
notice of its intention to cancel or not renew any of the
insurance policies maintained pursuant to this Ordinance or
the Franchise.
E. The Franchise shall include the provision of the
following Hold Harmless clause:
The Company agrees to indemnify, save harmless and
defend the City, its agents, servants, and employees,
and each of them against and hold it and them harmless
from any and all lawsuits, claims, demands,
liabilities, losses and expenses, including court costs
and reasonable attorney's fees for or on account of any
injury to any person, or any death at any time
resulting from such injury, or any damage to any
property, which may arise or which may be alleged to
have arisen out of or in connection with the work
covered by this Agreement. The foregoing indemnity
shall apply except to the extent such injury, death or
damage is caused by the negligence or other fault of the
City, its agents, servants, or employees or any other
person indemnified hereunder.
F. All insurance policies provided under the
provisions of this Ordinance or the Franchise shall be
written by companies authorized to do business in the State,
and approved by the State.
G. To the extent provided in the franchise agreement at
any time during the term of the Franchise, the City may
request and the Grantee shall comply with such request, to
name the City as an additional named insured for all insurance
policies written under the provisions of this Ordinance or the
Franchise.
H. To offset the effects of inflation and to reflect
changing liability limits, all of the coverages, limits, and
amounts of the insurance provided for herein are subject to
reasonable increases at the end of every three (3) year
26
period of the Franchise, applicable to the next three year
period, upon the determination of the City. Inflation
compensation shall be computed in accordance with the
regional Consumer Price Index.
6.3 GENERAL LIABILITY INSURANCE. The Grantee shall
maintain, and by its acceptance of any Franchise granted
hereunder specifically agrees that it will maintain
throughout the term of the Franchise, general liability
insurance insuring the Grantee in the minimum of:
(1) $500,000 for property damage per occurrence;
(2) $1,000,000 for property damage aggregate;
(3) $1,000,000 for personal bodily injury to any one
person; and
(4) $2,000,000 bodily injury aggregate per single
accident or occurrence.
Such general liability insurance must include coverage
for all of the following: comprehensive premises -
operations, explosion and collapse hazard, underground
hazard, products /completed operations hazard, contractual
insurance, broad form property damage, and personal injury.
6.4 AUTOMOBILE LIABILITY INSURANCE. The Grantee shall
maintain, and by its acceptance of any Franchise granted
hereunder specifically agrees that it will maintain
throughout the term of the Franchise, automobile liability
insurance for owned, non - owned, or rented vehicles in the
minimum amount of:
(1) $1,000,000 for bodily injury and consequent death
per occurrency;
(2) $1,000,000 for bodily injury and consequent death
to any one person; and
(3) $500,000 for property damage per occurrence.
6.5 WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY
INSURANCE. The Grantee shall maintain and by its acceptance
of any Franchise granted hereunder specifically agrees that
it will maintain throughout the term of the Franchise,
Worker's Compensation and employer's liability, valid in the
State, in the minimum amount of:
(1) Statutory limit for Worker's Compensation.
(2) $100,000 for employer's liability.
27
6.6 INDEMNIFICATION
A. Grantee shall, at its sole cost and expense, fully
indemnify, defend and hold harmless the City, its officers,
boards and commissions, and City employees against any and
all claims, suits, actions, liability and judgments for
damages (including but not limited to expenses for
reasonable legal fees and disbursements and liabilities
assumed by the City in connection therewith):
(1) To persons or property, arising out of or through
the acts or omissions of Grantee, its servants,
agents or employees.
(2) Arising out of any claim for invasion by the
Grantee, its servants, agents, or employees of the
right of privacy, for defamation of any person,
firm or corporation, or the violation or
infringement of any copyright, trademark, trade
name, service mark or patent, or of any other
right of any person, firm or corporation.
(3) Arising out of Grantee's failure to comply with
the provisions of any federal, state, or local
statute, Ordinance, or regulation applicable to
Grantee in its business hereunder.
B. The foregoing indemnity is conditioned upon the
following:
The City shall give Grantee prompt notice of the
making of any claim or the commencement of any
action, suit or other proceeding covered by the
provisions of this Section. Nothing herein shall be
deemed to prevent the City from cooperating with
Grantee and participating in the defense of any
litigation by its own counsel 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
I Wn
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.
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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.
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7.13 INTERNAL WIRING. Grantee shall install and /or
maintain internal wiring for subscribers. As of March 1,
1989, Grantee may own the internal wiring or, at the
subscribers discretion, the subscriber may own the wiring.
Grantee shall allow subscribers or other vendors to
install, own, and /or maintain internal wiring. Any subscriber,
who duly notifies Grantee within the time period reasonably
established and advertised by Grantee, may acquire ownership of
the internal wiring at his /her premises without charge. In the
event of signal leakage grantee may terminate service consistent
with Federal law.
7.14 REMOTE CONTROLS. Grantee shall make remote
control units available to subscribers to purchase or rent.
Grantee shall allow subscribers to purchase or rent remote
control units from other vendors. Grantee may provide
remote control units to subscribers at no charge as a part
of its package of services. Grantee shall provide detailed
information written in "plain English" to consumers and upon
request to any sellers of remote controls on the items
necessary for compatibility with Grantee's Cable
Communications System. Subscribers shall not be required to
replace damaged remote control units rented from the Grantee
if the damaged resulted from fire, flood, earthquake, or natural
disaster or act of God.
7.15 PUBLIC, EDUCATIONAL AND MUNICIPAL ACCESS. The
Grantee shall ensure the development and propagation of
public, governmental and educational access as a vital
community resource. The City shall establish requirements
in the Franchise with respect to the designation of channel
capacity, facilities, equipment, and services for public,
educational and governmental use.
7.16 LOCAL ORIGINATION. The City shall establish
enforcement mechanisms in the Franchise with regard to local
origination channel capacities, facilities, equipment, and
programming.
SECTION 8 DESIGN AND CONSTRUCTION PROVISIONS
8.1 LOCATION OF CABLE COMMUNICATIONS SYSTEMS. Grantee
shall construct, install, operate and maintain all elements
of the Cable Communications System within the City in
accordance with the maps and other documents submitted in
connection with this Ordinance or the Franchise. Poles,
towers and other obstructions shall be erected so as not to
interfere with vehicular or pedestrian traffic over public
ways and places. The erection and location of all poles,
towers and other obstructions shall be fixed with the prior
written approval and under the supervision of the City
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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).
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J
8.7 CITY PROPERTY. Where any damages or alterations
occur to the City's water, sewage or drainage lines or to
any other municipal structures in the streets during the
construction due to the presence, negligence, operation or
maintenance of the Cable Communications System, the sole
cost of such repairs including all services and materials
will be billed to the Grantee and these charges shall be
paid within 60 days of receipt of notice or the City may
foreclose on performance bonds, or invoke other appropriate
sanctions provided for in this Ordinance.
8.8 TEMPORARY RELOCATION. Grantee shall temporarily
raise or lower its wires or other equipment upon the
reasonable request of any person, including without
limitation, a person holding a building moving permit issued
by the City. The expense of such raising or lowering shall
be paid by the person requesting the same and Grantee shall
have the authority to require such payment in advance.
Grantee shall be given reasonable notice necessary to
maintain continuity of service. This provision shall not
apply to requests by the City for City purposes for which
movement there shall not be a charge by the Grantee.
8.9 CITY MAPS. The City does not guarantee the
accuracy of any maps showing the horizontal or vertical
location of existing substructures. In public- rights -of-
ways, where necessary, the location shall be verified by
excavation.
8.10 CONSTRUCTION NOTICE. Grantee shall give
appropriate notice to the City and residents within a
reasonable period of time of proposed construction,
excavation, laying or stringing of cable under streets or on
poles, but in no event shall such notice be given less than
seven (7) days before such commencement.
8.11 SAFETY AND CONSTRUCTION STANDARDS. The
construction, installation, operation, maintenance, and /or
removal of the Cable Communications System shall meet all of
the following safety, construction, and technical
specifications and codes and standards.
Occupational Safety and Health Administration
Regulations (OSHA)
National Electrical Code
National Electrical Safety Code (NESC)
National Cable Television Standard Code
AT &T Manual of Construction Procedures (Blue Book)
Bell Telephone Systems Code of Pole Line
Construction
All Federal, State, and Municipal Construction
Requirements, including FCC Rules and
Regulations
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Utility Construction Requirements
All Building and Zoning Codes, and all Land Use
Restrictions as the Same Exist or may be Amended
Hereafter.
8.12 CONTRACTORS AND SUBCONTRACTORS. All contractors
or subcontractors of Grantee must be properly licensed under
all applicable Federal, State and local laws and
regulations. Grantee shall be responsible for all acts or
omissions of any such contractor or subcontractor in the
construction, installation, maintenance or operation of
Grantee s Cable Communications System.
8.13 CONSTRUCTION PLAN APPROVAL. Prior to the
erection or installation by the Grantee of any towers,
poles, underground conduits, or fixtures for use in
connection with initial construction, rebuild, upgrade or line
extension of the Cable Communications System under this
Ordinance, the Grantee shall make available for City
approval a concise description of the facilities proposed to
be erected or installed, including strand maps, if required,
together with a map and plans indicating the proposed
location of all such facilities. Approval by the City shall
not be unreasonably withheld and shall be completed in a
timely manner.
For the rebuild the Grantee shall allow a City selected
engineer to inspect such information, maps and plans for five
business days in the Grantee's office. Prior to the five
days, the Grantee shall give the City thirty (30) days prior
notice that such information will be available. The Grantee
shall accommodate reasonable scheduling modifications. If
the Grantee makes a material change in any part of the
system design, the City shall be notified prior to construction
and shall have a reasonable period of time to have an engineer
review the changes in the Grantee's office.
No erection or installation of any tower, pole,
underground conduit, or fixture for use in the Cable
Communications System shall be commenced by any person until
approval therefore has been received from the City pursuant
to local regulation and provided further, that such approval
shall not be unreasonably withheld.
8.14 EQUIPMENT CHANGES. Any substitution or changes
in hardware components must be for equal to or better than
the items specified in the Franchise, (e.g., amplifiers,
cable, antennas).
8.15 EXTENSION OF SERVICE. The Grantee shall make
cable service available to all dwelling units and commercial
establishments within thirty (30) days of a request for such
service and the receipt of any applicable City, State,
Federal and utility company permits, and of permission from any
landlord or other person controlling access to such premises.
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8.16 ERECTION, REMOVAL AND COMMON USE OF POLES.
A. No poles shall be erected by the Grantee without
prior approval of the City with regard to location, height,
types and any other pertinent aspect. However, no location
of any pole or wire - holding structure of the Grantee shall
give rise to a vested interest and such poles or structures
shall be removed or modified by the Grantee at its own
expense whenever the City determines that the public
convenience would be enhanced thereby.
B. Where poles already exist for use in serving the
City are available for use by the Grantee, but it does not
make arrangements for such use, the City may require the
Grantee to use such poles and structures if it determines
that the public convenience would be enhanced thereby and
the terms of the use available to the Grantee are just and
reasonable.
C. Where a public utility serving the City desires to
make use of the poles or other wire - holding structures of
the Grantee, but agreement thereof with the Grantee cannot
be reached, the City may require the Grantee to permit such
use for such consideration and upon payment of the
prevailing public utility rates for make ready and pole
attachment rental, if the City determines that the use would
enhance the public convenience and would not unduly
interfere with the Grantee's operation.
8.17 RIGHT TO INSPECTION OF CONSTRUCTION. The City or
its designee shall have the right to inspect at any time all
construction or installation work performed subject to the
provisions of this Ordinance and the Franchise and to make
such tests as it shall deem necessary to ensure compliance
with the terms of this Ordinance, the Franchise and all
other applicable law. Grantee shall cooperate fully with
the City during all inspections and tests and shall provide
access to all equipment records, and other materials and
information necessary for such inspections and tests.
8.18 CONSTRUCTION REPORTING REQUIREMENTS.
A. Within thirty (30) days of the granting of a
Franchise pursuant to this Ordinance, the Grantee shall have
applied for any necessary agreements, licenses, . or
certifications 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.
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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
performance testing shall occur w
to the commencement of the Ca
service to each section of the
Franchise. Should performance
shall be appropriately remedied.
shall be borne solely by Grantee.
TEST. Initial proof of
ithin sixty (60) days prior
ble Communications System
City as set forth in the
prove defective, the defect
The costs of such test
8.21 ANNUAL PERFORMANCE TEST. Performance
requirements and standards specified in the Franchise, shall
be measured annually to ensure compliance with same. The
costs of such tests shall be borne by Grantee.
SECTION 9 MAINTENANCE AND INSPECTION
9.1 GENERAL. Grantee shall maintain wires, cables and
all other real and personal property and facilities
constituting the Cable Communications System in good
condition, order and repair at all times during the term of
the Franchise.
9.2 MAINTENANCE LOG. Grantee shall maintain an annual
log showing the date, approximate time and duration, type
and probable cause of all Cable Communications System
outages, whole or partial, due to causes other than routine
testing or maintenance. The entries in such log shall be
retained by Grantee for one (1) additional year and shall be
subject to inspection and copying by the City or its
designee during Grantee's regular business hours upon
reasonable request.
9.3 SERVICE INTERRUPTION. Except where there exists
an emergency situation necessitating a more expeditious
procedure, Grantee may interrupt service for the purpose of
repairing, upgrading or testing the Cable Communications
System, only during periods of minimum use, and only after a
minimum of twenty -four (24) hours notice to affected
subscribers.
9.4 RADIATION MONITORING. Radiation monitoring shall
be conducted by all maintenance technicians on an ongoing
basis. The results of said monitoring shall be made
available to the City upon request.
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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
(aw", various minority groups to advance and win promotions in all
categories of employment. As part of its obligation under
Section 10.1 above, Grantee shall take affirmative action to
employ, during the construction, operation and maintenance
of the Cable Communications System minorities and females as
set forth in the Franchise. Grantee shall submit to the
City annual EEO reports required by the Federal
Communications Commission.
SECTION 11 BOOKS, RECORDS, AND REPORTS
11.1 BOOKS AND RECORDS AVAILABLE TO THE GRANTOR.
A. BOOKS AND RECORDS. The City reserves the right to
inspect all pertinent books, records, maps, plans, financial
statements and other like material, of the Grantee, upon
reasonable notice and during normal business hours.
B. AVAILABILITY OF RECORDS. If any of such maps or
records are not kept in the City, or upon notice the Grantee
is unable to provide the records in the City, and if the
City shall determine that an examination of such maps or
records is necessary or appropriate to the performance of
any of their duties, then all travel and maintenance
(400'e 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
the physical miles
operation during the
City. Such report
system "as built"
of all materials req
subscribers.
REPORT. An annual rep,
of plant construction
fiscal year shall be
shall also contain any
maps filed with the
uired by the franchise
Drt setting forth
and plant in
submitted to the
revisions to the
City, and copies
to be given to
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 (50) 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.
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.
We
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
WAIVER OF THE TERMS
excused from complying
of this Ordinance or
upon any one or mor,
compliance with any such
CITY TO ENFORCE THE FRANCHISE, NO
THEREOF. The Grantee shall not be
with any of the terms and conditions
Franchise by any failure of the City
a occasions to insist upon or to seek
terms or conditions.
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