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HomeMy WebLinkAboutMN-CC-1988-10-05LO m Q 1 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. 253 254 2 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 lr� 19 255 3 October 5, 1988 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 25G 4 October S, 1988 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 19 W_ 257 5 October S, 1988 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 258 6 October 5, 1988 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 0 25;1 7 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 260 8 October 5, 1983 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 261 9 October S, 1988 *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 262 a Ito] 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 I rn 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. 264 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 J (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. 3 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. 3 3.8 CHANNEL means a six Megahertz (MHz) frequency band, which is capable of carrying either one standard video signal, a number of audio, digital or other nonvideo signals or some combination of such signals. 3.9 COMMENCE OPERATION means that time and date when operation of the Cable Communications System is considered to have commenced. 3.10 COMMERCIAL SUBSCRIBER means a subscriber who receives a service in a place of business where the service may be utilized in connection with a business, trade or profession. 3.11 COMMON COUNCIL means the mayor and council of the City of Ithaca. 3.12 COMMUNICATIONS POLICY ACT or CABLE ACT means the Cable Communications Policy Act of 1984 as it may be amended or succeeded. 3.13 COMPLAINT means that a subscriber or user informs the Grantee or the City, that a problem has been brought to the attention of the Grantee, but is unresolved to the satisfaction of the subscriber. 3.14 CONVERTER means an electronic device which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and any channel selector which permits a subscriber to view all signals delivered at designated converter dial locations at the set or by remote control. 3.15 DEDICATED INSTITUTIONAL ACCESS CHANNELS means broadband communications channels dedicated to serving city, county, state or federal governmental agencies, educational institutions, health care institutions or other nonprofit and profit making organizations. 3.16 DISCRETE CHANNEL shall mean a channel which can only be received by the person and /or institution intended to receive signals on such channel. 3.17 DROP shall mean a connection from feeder cable . 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. 4 _,.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. 61 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. 19 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. 7 3.50 SUBSCRIBER means any person, firm, corporation or other entity who or which elects to subscribe to, for any purpose, a service provided by the Grantee by means of or in connection with a Cable Communications System. 3.51 SYSTEM FACILITIES means the Cable Communications System constructed for use within the City, without limitation, the headend, antenna, cables, wires, lines, towers, amplifiers, converters, health and property security systems, equipment or facilities located within the corporate limits of the City designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing by coaxial cable, fiber optics, microwave or other means, audio and visual radio, television and electronic signals to and from Subscribers, in the City and any other equipment or facilities located within the corporate limits of the City intended for the use of the Cable Communications System; provided, however, such System Facilities excludes buildings, contracts, facilities, and equipment where primary use is for providing service to other System Facilities located outside the City limits. 3.52 TRANSFER means the disposal by the Grantee, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of five percent (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 J L 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. I D. COMPLIANCE WITH CITY ORDINANCES. Any Franchise granted by the City is hereby made subject to the general Ordinance provisions now in effect and hereafter made effective. Nothing in the Franchise shall be deemed to waive the requirements of the various codes and Ordinances of the City regarding permits, fees to be paid, or manner of construction. 4.2 USE OF PUBLIC STREETS AND WAYS. For the purpose of operating and maintaining a Cable Communications System in the City, the Grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the public streets and ways within the City such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary to the operation of the Cable Communications System, provided, however, that Grantee complies with all design, construction, safety, and performance provisions contained in this Ordinance, the Franchise, and other applicable local Ordinances. 4.3 USE OF GRANTEE FACILITIES. No poles shall be erected by the Grantee without prior approval of the City with regard to location, height, type and any other pertinent aspect. However no location of any pole of the Grantee shall be a vested right and such poles shall be removed or modified by the Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. Grantee shall utilize existing poles and conduits, where possible. 4.4 FRANCHISE TERRITORY. The Franchise territory shall be the entire City, or portions thereof, for which a franchise is granted under authority of a franchise agreement. The service area shall be the entire territory defined in the franchise agreement. 4.5 TERM OF FRANCHISE. The term of the Franchise shall commence as specified in the Franchise and shall continue for a period specified in the Franchise, unless sooner terminated as provided in the Franchise. The value of the Franchise at the end of the term shall be zero and no property right shall be conferred by the Franchise itself. 4.6 FRANCHISE REQUIRED. No Cable Communications System shall be allowed to occupy or use the streets of the City or be allowed to operate without a Franchise. 4.7 CITY'S RIGHT TO PERFORM PUBLIC WORKS. Nothing in this Ordinance or the Franchise shall be in hindrance to the right of the City or any governmental authority to perform or 10 carry on, directly or indirectly, any public works or public improvements of any description. Should the Cable Communications System in any way interfere with the construction, maintenance or repair of such public works or public improvements, the Grantee shall, at its own cost and expense, protect or relocate its Cable Communications System, or part thereof, as reasonably directed by the City officials or any governmental authority. 4.8 EMERGENCY REMOVAL 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. 11 4.12 LIMITATION ON USE OF FINANCIAL COMMITMENTS. Any financial commitments obtained by the Grantee which have been confirmed to the City pursuant to the Franchise shall be used solely in connection with the construction, operation or maintenance of the Cable Communications System or the Grantee's performance of the terms, obligations, and conditions of this Ordinance and the Franchise. 4.13 TRANSFER OF OWNERSHIP OR CONTROL. A. TRANSFER OF FRANCHISE. Any Franchise granted hereunder cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to by force or voluntary sale, merger, consolidation, receivership or other means without the prior consent of the City. B. TRANSFER OF CONTROL OR OWNERSHIP. The Grantee shall promptly notify the City of any actual or proposed change in control of the Grantee. Change in control means transfer. The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. C. CITY AUTHORIZATION. Prior City authorization is required for every change, transfer, or acquisition of control of the Grantee. City consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the City may inquire into the legal, financial, character, technical and other public interest qualifications of the prospective controlling party, and the Grantee shall assist the City in any such inquiry. Failure to provide all transfer related information reasonably requested by the City as part of said inquiry shall be grounds for denial of the proposed change, transfer or acquisition of control. D. ASSUMPTION OF CONTROL. The City agrees that any financial institution having a pledge of the Franchise or its assets for the advancement of money for the construction and /or operation of the Franchise shall have the right to notify the City that it or its designees satisfactory to the City will take control and operate the Cable Communications System. Further, said financial institution shall also submit a plan for such operation that will insure continued service and compliance with all Franchise obligations during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one year, unless extended by the City at its discretion and during said period of time it shall have the right to petition for transfer of the Franchise to another Grantee. If the City finds that such 12 66 q_ 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. 13 (2) To receive and investigate complaints regarding substandard service and to initiate any action necessary pursuant to this Ordinance or the Franchise or any applicable law or regulation to correct the service deficiencies. (3) To represent the City's interest before local, state or federal government agencies in cable communications matters. (4) To receive, evaluate and file all data and reports required by this Ordinance and to rule on such matters as appropriate under the Ordinance and State and Federal law or regulation. The City is hereby authorized to require adjustment to any fee, bond or insurance coverage or amount or charge contained herein not more frequently than bi- annually without hearing, to compensate for inflation or to reflect changing liability limits; provided, however, that the City shall notify Grantee prior to and after requiring such adjust- ment. Inflation shall be calculated in accordance with the regional Consumer Price Index. (5) To inspect at any time all construction, installation, and ongoing operation of the Cable Communications System, and to make such tests as it reasonably deems necessary to ensure compliance with the terms of this Ordinance, and the Franchise and other applicable laws and regulations. (6) To conduct public hearings and evaluation sessions as required under this Ordinance or as otherwise necessary for the proper effective administration of this Ordinance. (7) To appoint and furnish staffing for one or more advisory committees to provide advice, recommendations and other appropriate public input to the effective administration of this Ordinance and the Franchise. (8) To receive applications for rate increases, if the City has the authority to regulate rates, and provide staff assistance in the analysis and recommendations thereto. (9) To monitor Grantee's adherence to operational standards and service requirements. 14 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, Wn �M_ 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. 20 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. 21 5.18 FRANCHISE AND RENEWAL EXPENSE REIMBURSEMENT. Grantee is required to reimburse the City for the expenses of the franchising and renewal processes such as consultants fees, which are incidental to enforcement of the Ordinance or Franchise. These requirements or charges shall not be considered part of the Franchise fee. 5.19 AFFILIATES' USE OF SYSTEM. To the extent necessary to prevent Grantee from diverting revenues from the operation of the Cable Communications System from Grantee to Affiliates to the detriment of the City, Affiliates (excluding any affiliate which provides a national or regional programming service) shall be permitted to utilize the Cable Communications System only if a Franchise fee on City revenues derived therefrom is paid. 5.20 LATE 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. 24 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. 29 7.8 UNRESOLVED COMPLAINTS. Should a subscriber or user have a complaint which is unresolved after fourteen (14) days after notifying grantee thereof, the subscriber or user shall be entitled to file his complaint with the City, which shall have primary responsibility for the continuing administration of this Ordinance and the Franchise and the implementation of complaint procedures. A representative of Grantee shall be available thereafter to meet jointly with the City and the affected subscriber or user, within thirty (30) days after said subscriber or user has filed the complaint, to fully discuss and resolve the matter. If the matter cannot be resolved, the City may use judicial proceedings to resolve the matter; all judgments and costs for attorney's fees will be paid by the Grantee. 7.9 NOTICE OF PUBLIC MEETING. Whenever notice of any public meeting relating to the Cable Communications System is required by law or regulation, the City shall publish or cause to be published a notice of same sufficient to identify its time, place and purpose, in an Ithaca newspaper of general circulation once in each of two (2) successive weeks, the first publication being not less than fourteen (14) days before the day of any such hearing; and the Grantee by periodic announcement on the programming guide channel, and on at least one (1) channel of the Cable Communications System between the hours of seven (7) p.m. and nine (9) p.m., for four (4) consecutive days during each such week. 7.10 SUBSCRIBER PRIVACY INFORMATION. Grantee shall at all times protect the privacy of subscribers as provided in this Ordinance and other applicable Federal, State and Local laws. 7.11 PEOPLE METER. No people meter shall be used without the express written consent of the subscriber. 7.12 CONVERTERS. Grantee shall utilize state- of -the- art converters. Grantee shall make converters available to subscribers for rent or purchase. Grantee shall allow subscribers to purchase or rent converters from other vendors. Grantee shall provide detailed information written in "plain English" to consumers and upon request to any sellers- of converters on the items necessary for converter compatibility with Grantee's Cable Communications System. Subscribers shall not be required to replace damaged converters rented from the Grantee if the damage resulted from fire, flood, earthquake, or other natural disaster or act of God. 30 7.13 INTERNAL WIRING. Grantee shall install and /or maintain internal wiring for subscribers. As of March 1, 1989, Grantee may own the internal wiring or, at the subscribers discretion, the subscriber may own the wiring. Grantee shall allow subscribers or other vendors to install, own, and /or maintain internal wiring. Any subscriber, who duly notifies Grantee within the time period reasonably established and advertised by Grantee, may acquire ownership of the internal wiring at his /her premises without charge. In the event of signal leakage grantee may terminate service consistent with Federal law. 7.14 REMOTE CONTROLS. Grantee shall make remote control units available to subscribers to purchase or rent. Grantee shall allow subscribers to purchase or rent remote control units from other vendors. Grantee may provide remote control units to subscribers at no charge as a part of its package of services. Grantee shall provide detailed information written in "plain English" to consumers and upon request to any sellers of remote controls on the items necessary for compatibility with Grantee's Cable Communications System. Subscribers shall not be required to replace damaged remote control units rented from the Grantee if the damaged resulted from fire, flood, earthquake, or natural disaster or act of God. 7.15 PUBLIC, EDUCATIONAL AND MUNICIPAL ACCESS. The Grantee shall ensure the development and propagation of public, governmental and educational access as a vital community resource. The City shall establish requirements in the Franchise with respect to the designation of channel capacity, facilities, equipment, and services for public, educational and governmental use. 7.16 LOCAL ORIGINATION. The City shall establish enforcement mechanisms in the Franchise with regard to local origination channel capacities, facilities, equipment, and programming. SECTION 8 DESIGN AND CONSTRUCTION PROVISIONS 8.1 LOCATION OF CABLE COMMUNICATIONS SYSTEMS. Grantee shall construct, install, operate and maintain all elements of the Cable Communications System within the City in accordance with the maps and other documents submitted in connection with this Ordinance or the Franchise. Poles, towers and other obstructions shall be erected so as not to interfere with vehicular or pedestrian traffic over public ways and places. The erection and location of all poles, towers and other obstructions shall be fixed with the prior written approval and under the supervision of the City 931 pusuant to local regulation, provided, however, Grantee shall not have a vested interest in such location; and such construction shall be removed by Grantee at its sole cost and expense, whenever in the judgment of the City, the same restricts or obstructs the operation or location or any future operation or location of public ways and places, or whenever the City closes or abandons any public way or place. 8.2 DISCONNECTION AND RELOCATION. Grantee shall, at its sole cost and expense, protect, support, temporarily disconnect, relocate in the same street, or other streets and public grounds, or remove from any street or any other public ways and places, and of its property as reason of traffic conditions, public safety, street construction, change or establishment of street grade, or the construction of any public improvement or structure by any City Department. 8.3 PRIVATE PROPERTY. Grantee shall be subject to all laws, ordinances or regulations regarding private property in the course of constructing, installing, operating or maintaining the Cable Communications System in the City of Ithaca. Grantee shall promptly repair or replace all private property, both real and personal, damaged or destroyed as a result of the construction, installation, operation or maintenance of the Cable Communications System at its sole cost and expense. 8.4 REPAIRS AND RESTORATIONS. The Grantee shall restore any street it has disturbed, and shall, at its own cost and expense, restore and replace any other property disturbed, damaged or in any way injured by or on account of its activities to as good as the condition such property was in immediately prior to the disturbance, damage or injury. Restoration must be in accordance with the rules and regulations established by the City. 8.5 TREE TRIMMING. Grantee may trim trees or other vegetation owned by the City to prevent branches, leaves or roots from touching or otherwise interfering with its wires, cables, or other structures as approved by the City. 8.6 UNDERGROUND FACILITIES. In all areas of the City where cables, wires, and other like facilities of the telephone and electric utilities are already underground, the Grantee must also place its facilities underground. At such time as these facilities are placed underground by the telephone and electric utility companies or are required as are telephone and /or electric to be placed underground by the City, the Grantee shall likewise place its facilities underground at its sole cost and expense. Underground cable lines shall be placed beneath the pavement subgrade (minimum 22 inches to top of cable). 32 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 33 Utility Construction Requirements All Building and Zoning Codes, and all Land Use Restrictions as the Same Exist or may be Amended Hereafter. 8.12 CONTRACTORS AND SUBCONTRACTORS. All contractors or subcontractors of Grantee must be properly licensed under all applicable Federal, State and local laws and regulations. Grantee shall be responsible for all acts or omissions of any such contractor or subcontractor in the construction, installation, maintenance or operation of Grantee s Cable Communications System. 8.13 CONSTRUCTION PLAN APPROVAL. Prior to the erection or installation by the Grantee of any towers, poles, underground conduits, or fixtures for use in connection with initial construction, rebuild, upgrade or line extension of the Cable Communications System under this Ordinance, the Grantee shall make available for City approval a concise description of the facilities proposed to be erected or installed, including strand maps, if required, together with a map and plans indicating the proposed location of all such facilities. Approval by the City shall not be unreasonably withheld and shall be completed in a timely manner. For the rebuild the Grantee shall allow a City selected engineer to inspect such information, maps and plans for five business days in the Grantee's office. Prior to the five days, the Grantee shall give the City thirty (30) days prior notice that such information will be available. The Grantee shall accommodate reasonable scheduling modifications. If the Grantee makes a material change in any part of the system design, the City shall be notified prior to construction and shall have a reasonable period of time to have an engineer review the changes in the Grantee's office. No erection or installation of any tower, pole, underground conduit, or fixture for use in the Cable Communications System shall be commenced by any person until approval therefore has been received from the City pursuant to local regulation and provided further, that such approval shall not be unreasonably withheld. 8.14 EQUIPMENT CHANGES. Any substitution or changes in hardware components must be for equal to or better than the items specified in the Franchise, (e.g., amplifiers, cable, antennas). 8.15 EXTENSION OF SERVICE. The Grantee shall make cable service available to all dwelling units and commercial establishments within thirty (30) days of a request for such service and the receipt of any applicable City, State, Federal and utility company permits, and of permission from any landlord or other person controlling access to such premises. 34 8.16 ERECTION, REMOVAL AND COMMON USE OF POLES. A. No poles shall be erected by the Grantee without prior approval of the City with regard to location, height, types and any other pertinent aspect. However, no location of any pole or wire - holding structure of the Grantee shall give rise to a vested interest and such poles or structures shall be removed or modified by the Grantee at its own expense whenever the City determines that the public convenience would be enhanced thereby. B. Where poles already exist for use in serving the City are available for use by the Grantee, but it does not make arrangements for such use, the City may require the Grantee to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the Grantee are just and reasonable. C. Where a public utility serving the City desires to make use of the poles or other wire - holding structures of the Grantee, but agreement thereof with the Grantee cannot be reached, the City may require the Grantee to permit such use for such consideration and upon payment of the prevailing public utility rates for make ready and pole attachment rental, if the City determines that the use would enhance the public convenience and would not unduly interfere with the Grantee's operation. 8.17 RIGHT TO INSPECTION OF CONSTRUCTION. The City or its designee shall have the right to inspect at any time all construction or installation work performed subject to the provisions of this Ordinance and the Franchise and to make such tests as it shall deem necessary to ensure compliance with the terms of this Ordinance, the Franchise and all other applicable law. Grantee shall cooperate fully with the City during all inspections and tests and shall provide access to all equipment records, and other materials and information necessary for such inspections and tests. 8.18 CONSTRUCTION REPORTING REQUIREMENTS. A. Within thirty (30) days of the granting of a Franchise pursuant to this Ordinance, the Grantee shall have applied for any necessary agreements, licenses, . or certifications and shall provide the City with a written progress report. B. Written progress reports shall be submitted to the City on a monthly basis throughout the entire construction process. 35 8.19 INSPECTION. The City shall have the right to inspect, or appraise, as specified in this Ordinance, the plant equipment, and other cable system related property of Grantee. Grantee shall fully cooperate and otherwise assist in these activities. 8.20 INITIAL PERFORMANCE 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. 36 SECTION 10 EMPLOYMENT, TRAINING AND PROCUREMENT 10.1 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION PROGRAMS. Grantee shall be an Equal Opportunity /Affirmative Action Employer adhering to all Federal, State or municipal laws and regulations. Pursuant to 47 CFR 76.311 and other applicable regulations of the FCC, Grantee shall file an Equal Employment Opportunity Affirmative Action Program with the FCC and otherwise comply with all FCC regulations with respect to Equal Employment /Affirmative Action Opportunities. 10.2 EMPLOYMENT POLICY. Grantee shall act affirmatively to increase the number of women and members of various minority groups to their approximate proportion in the total population of the Franchise area at all levels of employment and to enhance the opportunities for women and (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. 40 0