HomeMy WebLinkAboutMN-CC-2002-11-06 COMMON COUNCIL PROCEEDINGS
CITY OF ITHACA, NEW YORK
Regular Meeting 7:00 pm November 6, 2002
PRESENT:
Mayor Cohen
Alderpersons (10) Manos, Pryor, Sams, Whitmore, Vaughan, Blumenthal,
Mack, Peterson, Cogan, Hershey
OTHERS PRESENT:
City Clerk – Conley Holcomb
City Attorney – Schwab
City Controller – Thayer
Planning and Development Director – Van Cort
Economic Development Director – McDonald
Superintendent of Public Works – Gray
Fire Chief – Wilbur
City Chamberlain - Parsons
Acting Youth Bureau Director - Green
Assistant City Attorney - Dunn
Acting Police Chief - Signer
PLEDGE OF ALLEGIANCE:
Mayor Cohen led all present in the Pledge of Allegiance to the American Flag.
ADDITIONS TO OR DELETIONS FROM THE AGENDA:
Budget and Administration Committee:
Alderperson Vaughan requested that the order of items for Budget & Administration
Committee be rearranged so that they would be discussed in the following order:
12.7 An Ordinance to Amend the Title of Chapter 252 Entitled “Cable Communications
Systems”
12.8 An Ordinance Regarding Cable Television Regulations
12.6 Cable Television Franchise Renewal - Resolution
No Council member objected
Planning and Economic Development Committee:
Alderperson Manos requested that items 11.4 A & B - Adoption of Economic
Development Plan - Declaration of Lead Agency Resolution and Declaration of
Environmental Significance Resolution be deleted from the agenda as they were
discussed and approved at the October 2, 2002 Common Council Meeting.
Alderperson Manos further requested that item 11.4C - Adoption of Economic
Development Plan be withdrawn from the agenda and referred back to Committee for
further discussion.
No Council member objected.
COMMUNICATIONS / PROCLAMATIONS:
Mayor Cohen proclaimed the week of November 18-22, 2002 as International Education
Week.
Quarterly Employee Recognition Awards:
Alderperson Peterson presented two appreciation awards and quarterly recognition
awards to the following:
November 6, 2002
2
1. Dean Cooke, Fire Fighter, Alderperson Peterson read the nomination submitted by
fellow fire fighter, Michael St. Denis:
“Knowing that a two man crew would have their hands full with a fully involved car fire, it
was a relief to see fire fighter, Dean Cooke, drive his personal vehicle to help out even
though he had ended his shift fifteen minutes prior. He helped pull equipment off the
fire truck while we put our personal protective gear on, then ran the fire pump so we
could safely apply water to extinguish the fire. Dean is a credit to the Ithaca Fire
Department and the City of Ithaca.”
2. Waterfront Trail Construction Crew, Alderperson Peterson explained that there are a
number of people from the Highway division, Parks crew, Sign Shop and Youth Bureau
who have contributed to the first significant part of the Waterfront Trail. She noted that
many people have already walked it, biked it, run on it and that it’s a real contribution to
our city both for quality of life and contribution to economic development and tourism.
The following workers were honored for this award:
Highway Division:
Edward Gearbrandt, John Knuttila, John Clink, Chris Irvin, Don Letts, Cliff Murphy,
Elmer Cook, William Park, Ray Knuttila, Mike Teeter, Dave VanEtten, Jeff Sweet,
Dan Spencer, Roger Ward
Seasonal Employees:
Shawn Boyle, Randy Hamilton, Lee Oplinger, Edward Eaton
Parks Crew:
Eric Woodward, Dave Hoaglin, Jack Allen, Larry Stanton, Dave Quick, Bruce Eastman,
Don Loveless, Myron Thompson
Sign Shop:
Jeff Redsicker, Mike Austin, Hollis Oltz
Youth Bureau:
John Sladish, Thomas Personius
COMMUNICATIONS:
Mayor Cohen announced that the City’s new website has gone “live” and encouraged
everyone to visit the new site at www.cityofithaca.org. He stated that the City would
welcome comments from members of the public who have suggestions or concerns
regarding the website. He further acknowledged the City Clerk and the Director of
Information Technology for their efforts on this project.
SPECIAL ORDER OF BUSINESS:
A Public Hearing to Consider the Adoption of the Mayor’s Proposed 2003 Budget
Resolution to Open Public Hearing
By Alderperson Manos: Seconded by Alderperson Whitmore
RESOLVED, That the Public Hearing to Consider the Adoption of the Mayor’s Proposed
2003 Budget be declared open.
Carried Unanimously
The following people addressed Common Council:
Brian Weinstein, Ithaca Fire Department
Fay Gougakis, City of Ithaca
Joel Harlan, Town of Dryden
Resolution to Close Public Hearing
By Alderperson Hershey: Seconded by Alderperson Whitmore
RESOLVED, That the Public Hearing to Consider the Adoption of the Mayor’s Proposed
2003 Budget be declared closed.
Carried Unanimously
November 6, 2002
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A Public Hearing to Consider Amending Chapter 325 of the City of Ithaca
Municipal Code Entitled “Zoning” Regarding Telecommunications Facilities and
Services - Personal Wireless Service Facilities
Resolution to Open Public Hearing
By Alderperson Pryor: Seconded by Alderperson Whitmore
RESOLVED, That the Public Hearing to Consider Amending Chapter 325 of the City of
Ithaca Municipal Code Entitled “Zoning” Regarding Telecommunications Facilities and
Services - Personal Wireless Service Facilities be declared open.
Carried Unanimously
No one appeared to address Common Council.
Resolution to Close Public Hearing
By Alderperson Mack: Seconded by Alderperson Whitmore
RESOLVED, That the Public Hearing to Consider Amending Chapter 325 of the City of
Ithaca Municipal Code Entitled “Zoning” Regarding Telecommunications Facilities and
Services - Personal Wireless Service Facilities be declared closed.
Carried Unanimously
PETITIONS AND HEARINGS OF PERSONS BEFORE COUNCIL:
Fay Gougakis, City of Ithaca – monetary contributions from Cornell University and
Ithaca College
Joel Harlan, Town of Dryden - Common Council member affiliations with Cornell
University.
RESPONSE TO PUBLIC:
Alderpersons Mack and Sams responded to comments made concerning contributions
to the City from Cornell University.
Alderpersons Peterson and Hershey responded to comments made regarding the
proposed 2003 budget.
CONSENT AGENDA:
Controller - Request to Extend Cooperative Energy Contract - Resolution
By Alderperson Vaughan: Seconded by Alderperson Cogan
WHEREAS, the Common Council of the City of Ithaca has accepted electric supply since
2001 from Advantage Energy, Inc. (Supplier), pursuant to a public bid issued by the
Municipal Electric and Gas Alliance (MEGA), of which this municipality is a member, and
WHEREAS, the Master Agreement between MEGA and Supplier provides for up to
three one-year extensions of such Agreement and of any customer agreements
pursuant thereto at terms MEGA may determine are in customers’ interests based upon
changes in utility tariffs or market conditions, and
WHEREAS, the conditions, duration and term, purpose and objective, scope and
authority delegated, manner and extent of financing, organizational structure and
manner in which personal property shall be acquired, managed and disposed of, are set
forth in the customer agreement, and that both the original Master Agreement and such
extensions are in conformity with the requirements of public bidding in New York State;
now, therefore, be it
RESOLVED, That the Mayor is hereby authorized and directed to execute and deliver
to Advantage Energy, Inc. an Extension Agreement dated November 6, 2002.
Carried Unanimously
HUMAN RESOURCES COMMITTEE:
9.1 Request to Appoint Acting Director of the Youth Bureau - Resolution
By Alderperson Peterson: Seconded by Alderperson Whitmore
November 6, 2002
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WHEREAS, the Acting Director of the Youth Bureau has retired through the 2002 New
York State Retirement Incentive Program, and
WHEREAS, the City of Ithaca is currently in the process of a search for a permanent
Youth Bureau Director, and
WHEREAS, the Youth Bureau Director Search Committee anticipates that the search
process would require at least two (2) more months before naming a new director, now
therefore be it
RESOLVED, That Common Council hereby appoints Allen Green to the position of
Acting Director of the Youth Bureau retroactive to September 6, 2002 at an annual
salary for 2002 of $57,951, and be it further
RESOLVED, That the additional money for the salary increase will be derived from the
Youth Bureau’s existing budget.
Alderperson Whitmore acknowledged his appreciation for Alice Green and all the work
that she has done for the City. He stated that she is truly an extraordinary individual, an
extraordinary manager, an extraordinary communicator and youth worker, and it has
been an honor to work with her. He further noted that the City is very lucky to be able to
appoint Allen Green to the Acting Deputy Director position. Allen’s experience and skills
are needed to lead the Youth Bureau at this very critical time.
Mayor Cohen seconded what Alderperson Whitmore said. He thanked Allen Green and
acknowledged this action as well-deserved recognition for his work with the City.
A vote on the resolution resulted as follows;
Carried Unanimously
PLANNING & ECONOMIC DEVELOPMENT COMMITTEE:
11.1 Recreational Trails Grant Application
A. Declaration of Lead Agency - Resolution
By Alderperson Manos: Seconded by Alderperson Whitmore
WHEREAS, State Law and Section 176.6 of the City Code require that a lead agency
be established for conducting environmental review of projects in accordance with local
and state environmental law, and
WHEREAS, State Law specifies that for actions governed by local environmental
review, the lead agency shall be that local agency which has primary responsibility for
approving and funding or carrying out the action, and
WHEREAS, the proposed Cayuga Waterfront Trail grant application under the
Transportation Equity Act of the 21st Century is a “Type 1” Action pursuant to the City of
Ithaca Environmental Review Ordinance and the New York State Environmental Quality
Review Act, which requires review under the City’s Environmental Quality Review
Ordinance, now, therefore be it
RESOLVED, That Common Council of the City of Ithaca does hereby declare itself lead
agency for the environmental review for the proposed Stewart Park phase of the
Cayuga Waterfront Trail.
Carried Unanimously
11.1 B. Declaration of Environmental Significance - Resolution
By Alderperson Manos: Seconded by Alderperson Whitmore
WHEREAS, the Common Council for the City of Ithaca is considering a Recreational
Trails grant application under the Transportation Equity Act for the 21st Century for the
proposed Stewart Park phase of the Cayuga Waterfront Trail, and
WHEREAS, appropriate environmental review has been conducted, and
November 6, 2002
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WHEREAS, the proposed action is a “Type 1” action under City Environmental Quality
Review Ordinance, and the State Environmental Quality Review Act, and
WHEREAS, the proposed action will not have a significant effect on the environment;
now, therefore be it
RESOLVED, That the City of Ithaca Common Council as lead agency in this matter,
hereby does determine that the proposed action at issue will not have a significant
effect on the environment, and that further environmental review is unnecessary under
the circumstances, and be it further
RESOLVED, That this resolution shall constitute notice of this negative declaration, and
the City Clerk be, and hereby is, directed to file a copy of the same, together with the
attachment, in the City Clerk’s Office and forward the same to any other parties as
required by law.
Carried Unanimously
11.1C Approval of Submission of Grant Application - Resolution
By Alderperson Manos: Seconded by Alderperson Blumenthal
WHEREAS, the Cayuga Waterfront Trail Initiative is a partnership between the City of
Ithaca and the Tompkins County Chamber of Commerce to develop the Cayuga
Waterfront Trail, and
WHEREAS, the Cayuga Waterfront Trail will significantly enhance access to Cayuga
lake for residents and visitors to the City of Ithaca and Tompkins County, and
WHEREAS, Common Council has approved and endorsed the development of the
Cayuga Waterfront Trail, and
WHEREAS, Common Council, as Lead Agency, has declared that the Stewart Park
phase of the Cayuga Waterfront Trail will have no significant environmental impact
pursuant to the City of Ithaca Environmental Review Ordinance and the New York State
Environmental Quality Review Act; now, therefore be it
RESOLVED, That Alan J. Cohen, as Mayor of the City of Ithaca, is hereby authorized
and directed to file an application for funds from the New York State Office of Parks,
Recreation and Historic Preservation in accordance with the provisions of the
Recreational Trails Program, in a amount not to exceed $125,000, and upon approval of
said request to enter into and execute a project agreement with the State for such
financial assistance to the City of Ithaca for design and construction of the Stewart Park
phase of the Cayuga Waterfront Trail.
Carried Unanimously
11.2 An Ordinance to Amend Chapter 5 of the City of Ithaca Municipal Code
regarding the Public Art and Design Commission
By Alderperson Blumenthal: Seconded by Alderperson Manos
ORDINANCE 02-_____
BE IT ORDAINED AND ENACTED by the Common Council of the City of Ithaca, New
York, as follows:
Section 1.
Chapter 5 of the City of Ithaca Municipal Code is hereby renamed “PUBLIC ART [AND
DESIGN] COMMISSION” [COMMISSION ON PUBLIC ART AND DESIGN], and is
amended as follows:
[HISTORY: Adopted by the Common Council of the City of Ithaca 5-5-1999 by Ord. No.
99-4. Amendments noted where applicable.]
November 6, 2002
6
§ 5-1. Creation.
The Common Council of the City of Ithaca hereby creates a Commission that shall be
known as the "[City of Ithaca Commission on] Public Art [and Design] Commission,"
hereinafter referred to as "the Commission." The commission is formed to advise
Common Council, in exercising its authority pursuant to §C-35 (General Legislative
Powers), to make decisions concerning the selection, acquisition, and display of public
art.
§ 5-2. Purpose and duties.
The purposes and duties of the Commission shall be as follows:
A. To create a public art plan for Common Council to adopt and to advise the Common
Council about [establish a plan and] mechanisms for implementation of a public art
program to enrich the visual and aesthetic environment of public, private and semipublic
spaces within the City of Ithaca.
B. To initiate and develop proposals, to receive recommendations and to solicit
contributions for additions to the existing collection of art in public places.
C. To develop criteria and guidelines for approval by Common Council for the selection,
[and] acquisition, exhibition and display of new works of art, either temporary (on-loan)
or permanent. The criteria and guidelines shall [which] relate to, but are not limited to,
economic feasibility, maintenance, security and aesthetics. Acquisition of art includes
either the purchase of art by the City or the acceptance of a donation of art to the City.
D. To advise the Common Council about the selection of [select] acquisitions and
donations [contributions] of public art that meet the selection criteria and guidelines and
to determine whether to accept unsolicited donations [contributions] of art and where
they may be located.
E. To review and advise Common Council on all proposals for the exhibition and
display of public art in the city’s public spaces, in public buildings, and public facilities
and infrastructure.
F. [ E.] Appropriate locations and elements of the environment that the Commission will
consider or promote for the placement of public art may include but will not be limited to:
(1)Outdoor public spaces.
(2)Publicly owned buildings, interior and exterior.
(3)Privately owned outdoor public space, with the agreement of the owner.
(4)Privately owned semipublic interior spaces, with the agreement of the owner.
(5)Public works projects, e.g., parking facilities, bridge improvements and lighting,
acting in cooperation with other city departments.
G. To review proposals for decorative elements in the city’s public spaces, e.g.
banners and fountains. The Commission shall provide advice on the location and
aesthetics of these items.
H. [F]. To replace and take over the responsibilities of the Centennial Arts Commission
and as such to oversee the maintenance of the Centennial art collection; find
appropriate public places for the display of this collection; and, where appropriate, see
that the works are appropriately displayed in places with adequate security and see that
the works are marked with plaques containing the title of the work, the artist and, where
appropriate, a notation that the work was a part of the Centennial collection developed
during the city's centennial year of 1988.
November 6, 2002
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I. [G]. To submit an annual report to the Common Council and to the Board of Public
Works and to report on a regular basis to the Mayor.
[ § 5-3. Membership; terms; vacancies; officers; compensation.]
§ 5-3. Membership.
A. The Commission shall consist of seven members, all of whom shall be voting
members, appointed by the Mayor subject to the approval of the Common Council. [One
member shall be a member of Common Council. One member shall be a representative
of the Board of Public Works.] Of the [remaining] seven [five] members, at least five
[three] shall be residents of the City of Ithaca. At least four [Three] members of the
Commission shall be professionals from the field of design, visual arts, architecture or
[and] landscape architecture. [The Director of the Community Arts Partnership of
Tompkins County, or its successor, shall serve as a nonvoting ex-officio member. The
Mayor may make other non-voting appointments as deemed necessary and
appropriate.]
B. Non-voting members of the Commission shall include a liaison from the Common
Council, a member of the Department of Planning and Development, a member of the
Department of Public Works, and the Directors of the Community Arts Partnership and
the Ithaca Downtown Partnership (or their successors). The Mayor may make other
nonvoting [ex-officio] appointments as deemed necessary and appropriate.
§ 5-4. Terms of Office; Vacancies.
A. [B].The seven [five] members [who are not appointed as city officials] shall be
appointed for terms of three years, except that the terms of the first Commission
members shall be for such lesser periods of time as to provide appropriate staggered
rotation and continuity.
B. Vacancies on the Commission shall be filled in the same manner as the original
appointment, except that a vacancy occurring other than by expiration of term of office
shall be filled only for the remainder of the unexpired term.
§ 5-5. Officers.
[C.] The Commission shall have a Chairperson and a Vice Chairperson who shall be
appointed by the Mayor.
§ 5-6. Compensation of Members.
[D.] The members of the Commission shall receive no compensation for their services
as members thereof but may be reimbursed for reasonable and necessary expenses
incurred in the performance of their duties within the appropriations made available
therefor.
§ 5.7 [5-4]. Meetings [; records].
A. A quorum for the transaction of business shall consist of four members of the
commission.
B. The commission shall meet at least every other month.
C. The Commission shall adopt rules and procedures for its meetings. It shall keep
accurate records of its meetings and activities and shall file an annual report as
provided in §5-2 of this chapter.
Section 2.
The following Public Art Guidelines are hereby established and included in Chapter 5 of
the City of Ithaca Municipal Code:
November 6, 2002
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Chapter 5, PUBLIC ART GUIDELINES
[HISTORY: Adopted by the Common Council of the City of Ithaca 11-6-2002 by Ord.
No. 02-06. Amendments noted where applicable.]
A. General Authority.
1. Definition. Works of art or art work - All forms of original creations of visual art which
may be portable as well as permanent. To include but not limited to:
a. Paintings of all media, including both portable and permanently affixed works
such as frescoes and murals;
b. Sculpture of any form and in any material or combination of materials. To
include statues, monuments, fountains, arches, or other structures intended for
ornamentation or commemoration. Also included are reliefs, mobiles, kinetic,
electronic and neon, sculptures;
c. Other works of visual art, such as inscriptions, stained glass, fiber works,
carvings, mosaics, photographs, drawings, collages, textile works, and prints.
Also included are crafts both decorative and utilitarian in clay, fiber, wood,
metal, glass, stone, plastic and other materials;
d. Artist designed landscapes and earthworks, including the artistic placement of
natural materials or other functional art objects.
2. Among its other duties, the Public Art Commission, hereinafter referred to as "the
Commission," is authorized by Common Council to:
a. review proposals for the acquisition of public art on behalf of the City
b. plan for the siting of all public art
c. accept on-loan art work for display
3. Common Council shall have the authority to acquire art work for City ownership
pursuant to its general authority to acquire property and materials by and for the City.
4. The City shall be subject to these guidelines if it wishes to purchase art work and/or
display art work on City property.
5. These guidelines shall not supersede the authority of Common Council.
B. Acquisitions - General.
1. Acquisitions shall include art work that is either purchased by the City, donated to the
City, or on-loan to the City.
2. Acquisitions of public art shall be free of restrictive conditions by the Artist or Donor
unless, in the discretion of the Commission, with the concurrence of Common Council,
such conditions are reasonable and not detrimental to the City. The location of pieces
will be the responsibility and right of the City.
3. All acquisitions of art work must be accompanied by the following statement:
The Donor or the Artist, in cases where an Artist loans or makes a donation, or a piece
is purchased by the City, represents and warrants to the City of Ithaca, New York, that it
intends to loan or donate (as the case may be) the art work to the City. The Donor or
Artist also represents that s/he has not entered into any agreement that may impair this
Agreement. The City recognizes and respects artists' rights as set forth in the Visual
Arts Rights Act of 1990 ( VARA) and Section 14.03 of the New York State Arts and
November 6, 2002
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Cultural Affairs Law, including but not limited to, the right to claim authorship, the right to
not have his/her name used on any work not created by the artist, and the right not to
have his/her work intentionally distorted, mutilated or modified so as to prejudice the
artist's reputation. However, the City expressly reserves the right, in its sole discretion,
to relocate or remove from display visual art, and an artist shall sign a waiver to allow
such relocation or removal.
4. There are no absolute criteria for the acquisition of works of art, except for the
following general tenets:
a. Outdoor works of art must be deemed safe and durable for public display and
be able to withstand weather conditions. Pieces should also be free of sharp or
protruding edges or be able to be sited in a manner that minimizes the
possibility of injury.
b. Pieces should be suitable for unrestricted public viewing. Art located in a
public setting does not require a ticket or necessitate a decision to choose to
view. Therefore, the art should be suitable for all audiences.
c. The Commission shall strive toward a goal of representing a broad variety of
tastes within the community and the provision of a balanced inventory of art in
public places to ensure a variety of styles and design throughout the community
that will also be representative of the eclectic tastes of the community.
5. Siting.
a. The siting and location of all public art work will be the responsibility and right
of the City.
b. Until such time as the Commission can prepare comprehensive plans for
specific areas of the City, decisions on siting will be made by appropriate City
Planning and/or Public Works Department staff in consultation with the
Commission and with consideration of recommendations from the Commission.
Once the Commission prepares comprehensive plans for the siting of art, then
location decisions will reside with the Commission.
c. Proposals for the siting of public art acquisitions shall also be reviewed by
other City boards and commissions which have potential interest in the siting of
art work. This may include, but is not limited to: the Parks Commission, the
Commons Advisory Board, the Shade Tree Advisory Committee, and the Board
of Public Works. Review of proposals by other boards and commissions shall
be confined to issues that do not include aesthetics. (Appropriate review
includes items such as maintenance, safety, and location.)
d. Public art shall be identified with suitably designed and sized plaques approved
by the Commission. Plaques for donated art work or on-loan art work (as
discussed below) can include the name of the piece and the donor but shall not
include any advertising.
6. Installation, maintenance, alteration, refinishing, moving, and removal of art in public
places shall be done in consultation with the artist whenever feasible.
7. Art work acquired by the City shall be insured by the City’s insurance to cover
damage, vandalism, theft, and fire. Damage from natural disasters and normal “wear
and tear” are excluded from coverage by the City. Therefore, repairs and maintenance
for normal “wear and tear” of pieces acquired by the City and put on public display shall
be provided by the City at its discretion. “Wear and tear” includes such things as normal
aging or exposure to the elements, or similar circumstances (e.g. rust, cracks, fading).
The City shall make a good faith effort to maintain the art work, pedestal, and plaque in
good condition, on par with other art works on public display owned by the City.
C. Donations.
November 6, 2002
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1. In addition to the guidelines set forth below in this Section C, the guidelines in
Sections A and B above shall apply to donations.
2. All costs for installation shall be negotiated by the City’s designee and the donor at
the time of donation.
3. Should the City choose to remove a piece of art work from public display for a period
of at least one year, the City shall make a good faith effort to attempt one of the
following actions: (1)to negotiate with the donor an extended period of time for the piece
to remain out of public display or (2)to offer to return the piece, at donor expense, to the
donor. If the original donor cannot be contacted after reasonable efforts or chooses not
to accept the return of the piece, the City reserves the right to sell or convey the piece.
4. If an art piece is damaged, it may be repaired at the donor’s expense. The City also
reserves the right to repair the piece, at its own discretion. If a piece is not repaired and
is subsequently removed from public display, the provisions in Section C. 3 apply.
D. On-Loan Items.
1. On-loan public art is defined as art that is not owned by the City.
2. In addition to the guidelines set forth below in this Section D, the guidelines in Sections A
and B above shall apply to public art on loan to the city, which is displayed by the City or on
City property.
3. The City will assume the costs of pedestals and plaques.
4. On-loan art work shall be insured by the City’s insurance to cover damage,
vandalism, theft, and fire. Damage from natural disasters and normal “wear and tear”
are excluded from coverage by the City. Therefore, repairs and maintenance for normal
“wear and tear” of on-loan art work put on public display shall be provided by the loan
or, or by the City at its discretion. “Wear and tear” includes such things as normal aging
or exposure to the elements, or similar circumstances (e.g. rust, cracks, fading). The
City shall make a good faith effort to maintain the art work, pedestal, and plaque in good
condition, on par with other art works on public display owned by the City.
Section 3. Effective Date
This Ordinance shall take effect immediately in accordance with law upon publication of
a notice as provided in the Ithaca City Charter.
Alderperson Blumenthal explained that this Ordinance revises the existing ordinance
and clarifies the advisory role of the Commission. The Public Art Guidelines is new
language that has been developed for the purchase, acquisition, or donation of artwork,
and clarifies the rights of the artists.
A vote on the Ordinance resulted as follows:
Carried Unanimously
11.3 An Ordinance to Amend Chapter 325 of the City of Ithaca Municipal Code
Entitled “Zoning” Regarding Telecommunications Facilities and Services -
Personal Wireless Service Facilities
A. Declaration of Lead Agency - Resolution
By Alderperson Manos: Seconded by Alderperson Hershey
WHEREAS, State Law and Section 176.6 of the City Code require that a lead agency
be established for conducting environmental review of projects in accordance with local
and state environmental law, and
WHEREAS, State Law specifies that for actions governed by local environmental
review, the lead agency shall be that local agency which has primary responsibility for
approving and funding or carrying out the action, and
November 6, 2002
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WHEREAS, the proposed amendment of Section 29.4 of Chapter 325 of the City Code
is an "Unlisted" Action pursuant to SEQR, and a "Type I" Action pursuant to CEQR
which requires review under the City's Environmental Quality Review Ordinance; now,
therefore, be it
RESOLVED, That Common Council of the City of Ithaca does hereby declare itself lead
agency for the environmental review of the proposed amendments to Chapter 325 of
the City Code regarding Personal Wireless Communication Service Facilities.
Alderperson Manos explained that Common Council passed a telecommunications
moratorium in May, 2002 to revise the Zoning Ordinance to better address the
requirements of personal wireless communication service facilities. This Ordinance
establishes standards for the location, siting, and design of these facilities. It also
encourages development in such a way that it is compatible with surrounding land uses,
and doesn’t impinge upon the attractiveness, health and safety of property values within
the City.
A vote on the Resolution resulted as follows:
Carried Unanimously
B. Declaration of Environmental Significance - Resolution
By Alderperson Manos: Seconded by Alderperson Pryor
WHEREAS, an Ordinance amending Section 29.4 of Chapter 325 entitled "Zoning" of the
City of Ithaca Municipal Code, regarding Personal Wireless Communications Service
Facilities has been submitted to Common Council for consideration, and
WHEREAS, appropriate environmental review has been conducted, and
WHEREAS, the proposed action is a Type I action under the City Environmental Quality
Review Ordinance, and
WHEREAS, the proposed action will not have a significant effect on the environment;
now, therefore, be it
RESOLVED, That this Common Council, as lead agency in this matter, hereby does
adopt as its own the findings and conclusions more fully set forth on the Long
Environmental Assessment Form dated September 30, 2002, and be it further
RESOLVED, That this Common Council, as lead agency, hereby does determine that
the proposed action at issue will not have a significant effect on the environment, and
that further environmental review is unnecessary under the circumstances, and be it
further
RESOLVED, That this resolution shall constitute notice of this negative declaration, and
the City Clerk be, and hereby is, directed to file a copy of the same, together with the
attachment, in the City Clerk's Office and forward the same to any other parties as
required by law.
Carried Unanimously
C. An Ordinance to Amend Chapter 325 of the City of Ithaca Municipal Code
Entitled “Zoning” Regarding Telecommunications Facilities and Services -
Personal Wireless Service Facilities
By Alderperson Manos: Seconded by Alderperson Whitmore
City Attorney Schwab noted that the County has submitted comments, and explained
how the City would respond to those concerns.
A vote on the Ordinance resulted as follows:
Carried Unanimously
The full text of this Ordinance is located at the end of the minutes.
November 6, 2002
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11.4 Adoption of the Economic Development Plan
A. Declaration of Lead Agency - Resolution
This item was withdrawn from the agenda as it had been discussed and approved at the
October 2, 2002 Common Council meeting.
B. Declaration of Environmental Significance - Resolution
This item was withdrawn from the agenda as it was discussed and approved at the
October 2, 2002 Common Council meeting.
C Adoption of Plan
This item was withdrawn from the agenda and referred to committee for further discussion.
BUDGET & ADMINISTRATION COMMITTEE:
12.1 Adoption of 2003 Budget
By Alderperson Vaughan: Seconded by Alderperson Hershey
WHEREAS, this Common Council is now considering adoption of the Amended Executive
Budget for 2003 as approved by the Budget and Administration Committee, and
WHEREAS, it is the consensus of this Common Council that the total appropriations and
estimated revenues, as set forth in said Amended Executive Budget for 2003 and as those
amounts may be altered by action of this Common Council at its November 6, 2002
meeting, are adequate for the operation of the City during 2003; now, therefore be it
RESOLVED, That this Common Council accepts and approves said Amended Executive
Budget for 2003, together with any additional changes made in said budget at Council's
November 6, 2002 meeting as the City of Ithaca Budget for 2003, in the total amount of
$43,097,627, and be it further
RESOLVED, That the following sections of the 2003 Budget be approved:
A) General Fund Appropriations
B) Water Fund Appropriations
C) Sewer Fund Appropriations
D) Joint Activity Fund Appropriations
E) Solid Waste Fund Appropriations
F) General Fund Revenues
G) Water Fund Revenues
H) Sewer Fund Revenues
I) Joint Activity Fund Revenues
J) Solid Waste Fund Revenues
K) Debt Retirement Schedule
L) Capital Projects
M) Schedule of Salaries and Positions - General Fund
N) Schedule of Salaries and Positions - Water & Sewer Fund
O) Schedule of Salaries and Positions - Joint Activity Fund
P) Schedule of Salaries and Positions - Solid Waste Fund
Q) Authorized Equipment - General Fund
R) Authorized Equipment - Water Fund
S) Authorized Equipment - Sewer Fund
T) Authorized Equipment - Joint Activity Fund
U) Authorized Equipment - Solid Waste Fund
Amending Resolution:
By Alderperson Hershey: Seconded by Alderperson Vaughan
RESOLVED, That the City Prosecutor’s Office budget lines be amended by eliminating the
full-time City Prosecutor position, retaining the half-time Deputy City Prosecutor position,
and adding $51,500 to the City Attorney’s budget lines.
Alderperson Hershey explained that a net savings of $108,500 would be derived from this
proposal, which equals approximately a 1% tax decrease. He further expressed his
November 6, 2002
13
opinion that after considerable communication with the District Attorney’s Office, this
proposal would result in a lesser impact of service to the community than the original
proposal to eliminate the Deputy City Prosecutor position.
He further explained that this proposal would include shifting the duties of prosecution of
crimes and traffic violations to the Tompkins County District Attorney’s Office, and the
prosecution of City Code violations to the City Attorney’s Office. The City Attorney would
be appointed as City Prosecutor.
City Attorney Schwab explained that she had just recently been made aware of this
proposal and had not been able to discuss it with the City Prosecutor. She explained that
she attempted to calculate financial figures that would represent what her office would
need to assume the increased workload. She presented the following breakdown:
City Attorney -increase for additional duties: $ 8,000
Assistant City Attorney – ½ time 28,000
Administrative Secretary – upgrade to Legal Asst 4,500
Temp. Administrative Staff 9,400
Telephone 500
Office Expense 800
Staff Development 300
Total: $51,500
Alderperson Sams stated that she did not believe that this proposal would result in better
service to the public, as police officers would have to prosecute their own cases which
would result in increased overtime at approximately $45 an hour for a four-hour minimum.
She stated that more time is needed to discuss and evaluate the transition of services.
She expressed her desire to study this proposal during 2003 and implement it in 2004.
Alderperson Hershey stated that if this proposal is adopted the City would have three
months to discuss the transition. He further stated that the District Attorney has assured
him that the City would not be treated like the rural municipalities regarding police officers
prosecuting their tickets.
Mayor Cohen reported that he met with the District Attorney who stated that tickets would
not be handled the same way that they are presently being handled. Advance phone calls
would not be made to people to ascertain pleas, etc., but a full-time Assistant District
Attorney would be dedicated solely to City Court and would meet with people before they
appeared in court. This would result in more Court time, but it would not reflect on the
City’s budget. The District Attorney has further stated that his office would not be
prosecuting tickets in the City the same way as it is handled in other municipalities due to
the intensive nature of the workload of City Court.
City Prosecutor Margaret McCarthy addressed Council to explain the process her office
follows to proactively save court time and police overtime. She explained that the vast
majority of people that the Prosecutor’s Office deals with are people who have not shown
up for the assigned court date and have not entered a plea, but have requested a trial.
By taking proactive measures of informing the public of their options via information
tickets, City Court website, and letters, trials are adverted and police overtime is saved.
District Attorney Dentes addressed Council to answer questions. He stated that in order to
incorporate the additional workload this proposal would create in his office, he would need
additional resources. He stated that he intended to address the Tompkins County Board
of Representatives to request assistance, and he fully expects that they will give him
assistance. He further stated that he intended to devote a full-time Assistant District
Attorney to City Court to essentially cover the City Prosecutor’s duties and traffic tickets.
He stated that if the County Board denies his request for assistance, or invokes further
cuts in his office, he would be placed in a difficult situation, but he does not expect that to
happen.
November 6, 2002
14
District Attorney Dentes explained that he anticipates that the County Board would
acknowledge that the law states that prosecution of criminal cases is the District Attorney’s
responsibility, and hence it is the County’s responsibility to pay for it.
Mayor Cohen confirmed that the representation that the District Attorney made to him was
that the City would have a full-time Assistant District Attorney in City Court. He further
explained that he spoke with the Chair of the Tompkins County Board of Representatives
who stated that he could not guarantee anything, however if the City did proceed in this
direction, it was his expectation that the County Board would be obligated to increase the
staffing to accommodate for the dramatic increase in the workload for the department. He
did not make specific suggestions, but did state that adjustments would need to be made
to the District Attorney’s budget.
Alderperson Sams stated that she had conversations with three member of the County
Board who stated that they would consider restoring the District Attorney’s original budget,
but would not consider an increase. She asked the District Attorney if he would be able to
meet his stated commitments under this circumstance. She further asked if Police Officers
would need to be present for the pleading of tickets.
District Attorney Dentes responded that police officers would need to be present on Court
dates if tickets go to trial. He further stated that he would need a full-time clerical person
and a full-time attorney to help with the large volume of work at City Court, and he believes
that he will receive the requested staffing. He further stated that after the budget process
is over, he would evaluate his staffing situation and would adopt policies and disposition
methods that will be applied evenly throughout the County. If his staffing is not adequate,
they may have to be more lenient on ticket dispositions than they would like to be.
Alderperson Sams voiced her concern that he would not get the requested additional
staffing, and how that would affect the City. She further voiced her concerns regarding
the City’s commitment to its Diversity Statement as the proposed layoff demographics,
including the City Prosecutor position is as follows:
13 positions: 8 females / 1 black female
3 black males
2 vacant positions
Further discussion followed on the floor regarding proactive approaches to reduce the
amount of time an attorney has to spend counseling people regarding their options, and
the amount of time that police officers would have to spend in court.
Call the Question:
By Alderperson Mack: Seconded by Alderperson Vaughan
RESOLVED, That the Question be Called on the Amending Resolution.
Ayes (3) Hershey, Vaughan, Mack
Nays (7) Manos, Pryor, Whitmore, Sams, Blumenthal, Peterson,
Cogan
Failed
Extensive discussion followed on the floor. Alderperson Pryor stated that there are
many unknowns in terms of the District Attorney staffing levels, however the original
proposal of eliminating the Deputy City Prosecutor position would also result in a
decrease of services to the public.
City Prosecutor McCarthy stated that the elimination of the Deputy City Prosecutor
position would result in reduced services. She stated that it would be her decision as to
what services were appropriate to cut, and they would most likely be office hours on the
traffic tickets, and advance phone calls would be cut. She stated that she didn’t believe
that the elimination of the position would result in the quality of prosecution in court.
The District Attorney has proposed to have one full-time attorney present in court, which
is what the City Prosecutor would be doing as a result of the original budget reduction.
She further explained the economy of scale realized for the prosecution of City Code
November 6, 2002
15
violations because the attorneys are already in court for other violations. This economy
would not be realized with a half-time attorney located in the City Attorney’s Office. She
further stated that she would not be in the office as much as she would be in court an
additional seven hours per week.
Alderperson Cogan stated that he believes there is a false economy of what savings
would be realized with this proposal.
Amending Resolution:
By Alderperson Cogan: Seconded by Alderperson Whitmore
RESOLVED, That the Amending Resolution be amended to eliminate $51,500 from the
City Attorney’s budget, and to restore the City Prosecutor and Administrative Staff
positions, and, be it further
RESOLVED, That the hours of the Deputy City Prosecutor position be reduced from 20
hours to 15 hours per week.
Extensive discussion followed on the floor. Alderperson Pryor stated that the original
amendment reduces the City’s proposed tax rate by approximately 1%, and this
amendment would increase the City’s tax rate. Many hours of discussion have been
devoted to this topic, and she supports the original proposal as she believes the City will
realize approximately the same level of service.
Alderperson Hershey stated that Common Council originally faced a 16% property tax
increase. The City realizes that reduction of services will have to occur due to the cuts
that were made across the board that impact almost every department. Many lives
have been directly impacted by the difficult decisions that Council has faced. He stated
that if the City has to diminish services to anyone, then it should be to the people that
break the City’s laws and violate the City’s ordinances. This proposal would make the
City’s property tax increase under 14% which he is still unhappy with, but can support.
Alderperson Whitmore stated that committee work should not take place on the floor of
Common Council. He further stated that he is tired of being asked to make significant
decisions with massive consequences with limited information, and being told there is
not enough time to gather the information required to make good decisions. He stated
that he believes that this is a bad policy decision being forced on Common Council at
the last minute, and that not nearly enough discussion has been held, or this level of
work would not be performed at this stage of the budget process.
Alderperson Cogan suggested that the additional funds needed to fund this amendment
come from the cushion that the Mayor has established in the fund balance as opposed
to increasing the property tax rate.
Alderperson Sams stated that the budget process needs dramatic changes. She voiced
her disappointment that a few members of Council met in private to discuss various
proposals and stated that if these discussions had been open to other members of
Council, then the continued debate would not necessary. She further stated that this
decision should be evaluated for a year. Alderperson Sams further stated that there are
departments that have not been cut to date, and further cuts should be looked at in
those departments instead of using the Mayor’s cushion.
Alderperson Blumenthal clarified that the police overtime issue is the same for both
proposals.
District Attorney Dentes stated that prosecuting alone could be very difficult. With the
compliment of attorneys available in his office, back-up attorneys could be assigned to
cover vacations and sick leave. He further stated that if a daily caseload were very
large, a second attorney could be assigned to court if necessary.
Mayor Cohen stated that he would work as hard as possible to protect the funds
allocated to the City’s fund balance. He stated that these funds are critical to the City to
protect us from reductions in State aid, softness in sales tax projections and to replenish
November 6, 2002
16
a sorely under-funded, fund balance. Mayor Cohen was asked which proposal he
would support. He responded that many of the concerns that were raised to him by the
City’s department heads have been addressed by the pointed discussion he held with
the District Attorney. He stated that if he were faced with a tie vote of Common Council,
he would vote in favor of the original motion.
Alderperson Manos stated that she would support the original motion as she is not in
favor of increasing the tax rate further. She stated that Common Council should expect
a decrease in service to the public as a result of this proposal. She noted that she
wished there was more time to evaluate the proposal but voiced her confidence that the
office could be restored next year if the proposal did not work out.
In response to a question, District Attorney Dentes stated that he would not return cases
to the City to prosecute unless his office had a conflict of interest with the case.
Alderperson Peterson clarified that the original proposal would lower the City property
tax rate, but would increase the County tax rate.
A vote on the Amending Resolution resulted as follows:
Ayes (3) Cogan, Peterson, Sams
Nays (7) Manos, Pryor, Whitmore, Vaughan, Blumenthal, Mack,
Hershey
Failed
Amending Resolution:
By Alderperson Mack: Seconded by Alderperson Pryor
RESOLVED, That the Amending Resolution be amended to read as follows
“RESOLVED, That the 2003 City Budget be amended by eliminating the funding from City
Prosecutor’s Office budget lines, and adding $51,500 to the following City Attorney’s
budget lines:
105 - $36,000
110 – 4,500
120 – 9,400
450 - 500
425 - 800
440 - 300
Total: $51,500
and, be it further
RESOLVED, That $19,500 be added to the budget to cover unemployment insurance,
benefits and a month extension of staffing for transition purposes.
The additional changes result in a net savings of $89,000 instead of $108,500.
Further discussion followed on the floor regarding the creation of a Memorandum of
Understanding for assigned duties, the provision of physical office space in City Court,
and the provision of office space within the City Attorney’s Office for additional staff.
A vote on the Amending Resolution resulted as follows:
Ayes (9) Manos, Pryor, Whitmore, Vaughan, Blumenthal, Mack,
Peterson, Cogan, Hershey
Nays (1) Sams
Carried
Amending Resolution
By Alderperson Sams: Seconded by Alderperson Whitmore
RESOLVED, That the Planning Department cut an additional $30,000 from their budget
lines.
November 6, 2002
17
Alderperson Blumenthal stated that she did not think it was legitimate to ask a
Department Head to come up with additional budget cuts on the floor of Common
Council.
A vote on the Amending Resolution resulted as follows:
Ayes (2) Sams, Whitmore
Nays (7) Manos, Pryor, Vaughan, Blumenthal, Mack, Peterson,
Cogan, Hershey
Failed
Motion to Table:
By Alderperson Mack: Seconded by Alderperson Manos
RESOLVED, That the motion on the floor be tabled pending a short recess.
Carried Unanimously
Motion to Remove from Table:
By Alderperson Vaughan: Seconded by Alderperson Cogan
RESOLVED, That the Adoption of the 2003 Budget be removed from the table for
further discussion.
Carried Unanimously
Alderperson Sams stated that she would not support the adoption of the 2003 City
Budget due to the non-commitment of Common Council to the City’s Diversity
Statement reflected in the budget cuts. She stated that out of 17 layoffs, 14 employees
are from protected classes. She stated that she believes the City followed a bad budget
process and has made unsound decisions.
Main Motion as Amended:
A vote on the Main Motion as Amended resulted as follows:
Ayes (9) Manos, Pryor, Whitmore, Vaughan, Blumenthal, Mack,
Peterson, Cogan, Hershey
Nays (1) Sams
Carried
The Resolution as Amended reads as follows:
12.1 Adoption of 2003 Budget
By Alderperson Vaughan: Seconded by Alderperson Hershey
WHEREAS, this Common Council is now considering adoption of the Amended Executive
Budget for 2003 as approved by the Budget and Administration Committee, and
WHEREAS, it is the consensus of this Common Council that the total appropriations and
estimated revenues, as set forth in said Amended Executive Budget for 2003 and as those
amounts may be altered by action of this Common Council at its November 6, 2002
meeting, are adequate for the operation of the City during 2003; now, therefore be it
RESOLVED, That this Common Council accepts and approves said Amended Executive
Budget for 2003, together with any additional changes made in said budget at Council's
November 6, 2002 meeting as the City of Ithaca Budget for 2003, in the total amount of
$43,039,848, and be it further
RESOLVED, That the following sections of the 2003 Budget be approved:
A) General Fund Appropriations
B) Water Fund Appropriations
C) Sewer Fund Appropriations
D) Joint Activity Fund Appropriations
E) Solid Waste Fund Appropriations
F) General Fund Revenues
G) Water Fund Revenues
H) Sewer Fund Revenues
I) Joint Activity Fund Revenues
November 6, 2002
18
J) Solid Waste Fund Revenues
K) Debt Retirement Schedule
L) Capital Projects
M) Schedule of Salaries and Positions - General Fund
N) Schedule of Salaries and Positions - Water & Sewer Fund
O) Schedule of Salaries and Positions - Joint Activity Fund
P) Schedule of Salaries and Positions - Solid Waste Fund
Q) Authorized Equipment - General Fund
R) Authorized Equipment - Water Fund
S) Authorized Equipment - Sewer Fund
T) Authorized Equipment - Joint Activity Fund
U) Authorized Equipment - Solid Waste Fund
Ayes (9) Manos, Pryor, Whitmore, Vaughan, Blumenthal, Mack,
Peterson, Cogan, Hershey
Nays (1) Sams
Carried
Alderperson Vaughan thanked City Controller Steven Thayer for exceptionally
dedicated service.
City Controller Thayer thanked the Mayor, Council and Administrative Secretary Carol
Shipe for the countless hours of work involved in this process. He also thanked the
department heads and their assistance and cooperation. He noted that the budget
adoption is a difficult process, and expressed his desires to make process adjustments
and improvements.
12.2 Adoption of 2003 Tax Rate
By Alderperson Vaughan: Seconded by Alderperson Hershey
WHEREAS, the 2003 City of Ithaca Budget was approved, adopted and confirmed in the
total amount of $43,039,848 on November 6, 2002, in accordance with a detailed Budget
on file in the Office of the City Controller, and
WHEREAS, available and estimated revenues total $32,925,220 leaving $10,172,407 as
the amount to be raised by taxation, and
WHEREAS, the Assessment Roll for 2003, certified and filed by the Assessment
Department of Tompkins County, has been footed and approved and shows the total net
taxable valuation as $865,744,842, and
WHEREAS, under Charter provisions, the tax limit for City purposes amount to
$21,581,257 for 2003; now, therefore, be it
RESOLVED, That the tax rate for general purposes, for the fiscal year 2003, be, and the
same hereby is, established and fixed at $11.68315 per $1,000 of taxable valuation as
shown, certified and extended against the respective properties on the 2003 Tax Roll,
thereby making a total tax levy, as near as may be, of $10,114,628, and be it further
RESOLVED, That the amount of said tax levy be spread, and the same hereby is levied
upon and against the respective properties as shown on said City Tax Roll, in accordance
with their respective net taxable valuation, at the rate of $11.68315 per $1,000 of such
taxable valuation, and be it further
RESOLVED, That the City Chamberlain be, and hereby is, directed to extend and
apportion the City Tax as above, and that upon the completion of the extension of said
Roll, the City Clerk shall prepare a warrant on the City Chamberlain for the collection of
said levy; and the Mayor and the City Clerk hereby are authorized and directed to sign and
affix the corporate seal to such warrant and forthwith to file the same with said Tax Roll
with the City Chamberlain, and be it further
RESOLVED, That upon the execution and filing of said warrant and Tax Roll with the City
Chamberlain, the amounts of the City Tax set opposite each and every property shall
November 6, 2002
19
hereby become liens, due, payable and collectible in accordance with provisions of the
City Charter and other laws applicable thereto, and be it further
RESOLVED, That the total sum of $43,039,848 be appropriated in accordance with the
Budget adopted, to the respective Boards, Offices and Departments of the City, for the
purposes respectively set forth therein. The 2003 Assessment Roll has been completed
and approved by the Assessment Department of Tompkins County and resulted in the
following valuation:
Total Value of Real Property $3,005,026,604
Less: Value of Exempt Property 2,161,936,700
$ 843,089,904
Plus: Value of Special Franchises 22,654,938
Net Value of Taxable Property $ 865,744,842
Amending Resolution:
By Alderperson Cogan: Seconded by Alderperson Sams
RESOLVED, That, for general purposes, that tax rate be rounded up to 11.69 dollars for
$1,000.00.
Ayes (9) Hershey, Peterson, Cogan, Whitmore, Vaughan, Blumenthal,
Pryor, Manos, Sams
Nays (1) Mack
Carried
Extensive discussion followed on the floor regarding the tax rate increase and its effect
on the City, employees, the community, and the budget process.
Main Motion as Amended:
A vote on the Main Motion as Amended resulted as follows:
Ayes (10) Cohen, Manos, Blumenthal, Vaughan, Mack, Whitmore, Cogan,
Hershey, Pryor, Peterson
Nays (1) Sams
Carried
Alderperson Whitmore thanked Alderperson Vaughan for the leadership that she has
brought to this process and for the amount of time and coordination that was required.
12.3 Planning Department - Request for Funds for Neighborhood Improvement
Incentive Program - Resolution
By Alderperson Vaughan: Seconded by Alderperson Manos
WHEREAS, on May 3, 1995, Common Council established the Neighborhood
Improvement Incentive Fund, and
WHEREAS, the purpose of the fund is to give financial assistance to city residents who
want to improve their neighborhoods, and
WHEREAS, as envisioned by the Common Council, funds dispersed through the program
have been used for a wide range of projects including neighborhood clean ups,
newsletters, planting in public spaces and organizing neighborhood events such as
meetings or block parties, and
WHEREAS, experience of the past seven years shows that the fund effectively supports
the efforts of residents to organize neighborhood events and activities, and
WHEREAS, there has been no allocation to the Neighborhood Incentive Fund in the past
several years, and funds previously allocated have been exhausted, and
November 6, 2002
20
WHEREAS, there are several applications approved by the Neighborhood and Community
Issues Committee of the Common Council which total $1,050.00 for which there are no
funds to reimburse applicants; now, therefore, be it
RESOLVED, That a minimum of $1,050.00 be allocated to the City’s Neighborhood
Improvement Incentive Fund for the purpose of reimbursing the residents who have
carried out projects described in the approved applications, and be it further
RESOLVED, That Common Council hereby transfers an amount not to exceed $1,050.00
from account A1990 Unrestricted Contingency to account A8020-5435 Planning
Department Contracts for the purposes of funding the Neighborhood Improvement
Incentive Fund.
Discussion followed on the floor with Alderperson Vaughan providing the history of the
Neighborhood Improvement Incentive Fund.
Amending Resolution:
By Alderperson Pryor: Seconded by Alderperson Blumenthal
RESOLVED, That the last Resolved clause be amended to read as follows:
“RESOLVED, That Common Council hereby transfers an amount not to exceed
$1,250.00 from account A1990 Unrestricted Contingency to account A8020-5435 Planning
Department Contracts for the purposes of funding the Neighborhood Improvement
Incentive Fund.”
Carried Unanimously
Amending Resolution:
By Alderperson Blumenthal: Seconded by Alderperson Pryor
RESOLVED, That an additional Whereas clause be added after the last Whereas Clause
that would read as follows:
“WHEREAS, Common Council would like to have a reserve of $200.00 for the months of
November and December 2002; now therefore be it”
Carried Unanimously
Main Motion as Amended:
A vote on the Main Motion as Amended resulted as follows:
Carried Unanimously
12.4 DPW/TCAT - Request to Amend TCAT Consolidation Agreement - Resolution
By Alderperson Vaughan: Seconded by Alderperson Manos
WHEREAS, TCAT has drafted a Strategic Plan that identifies as one of its objectives the
formation of a single transit organization with one employer, and
WHEREAS, the existing April 1, 1998 TCAT Consolidation Agreement, which created the
joint venture structure, will need to be terminated in order to create a different
organizational structure, and
WHEREAS, the current TCAT agreement needs to be amended to include language to
allow for the extension of the contract beyond the original five-year termination date; now,
therefore, be it
RESOLVED, That Common Council hereby directs the Mayor to sign the amendment to
the original TCAT Consolidation Agreement to allow for said extension and language
changes.
Alderperson Manos explained that TCAT has been involved in a strategic planning
process and three goals have emerged. One of those goals is to try to create a single
entity, rather than a partnership between the three entities. Discussion has centered on
the creation of a public benefit corporation and authority. Under the current agreement
that is due to expire, any one of the three partners could terminate their portion of the
agreement. This Resolution would extend the TCAT Consolidation Agreement for a
year to allow for enough time to form a new type of organization.
November 6, 2002
21
A vote on the resolution resulted as follows:
Carried Unanimously
12.5 Controller - Establish Mandatory Debt Reserve for Proceeds from Sale of
Carpenter Park - Resolution
By Alderperson Vaughan: Seconded by Alderperson Peterson
WHEREAS, Carpenter Business Park has recently been sold for $970,000 with the City’s
share of the proceeds at $378,977.92, and
WHEREAS, the City is required by General Municipal Law to establish a Mandatory Debt
Reserve from the proceeds of the sale of property to pay off any outstanding debt on the
property, and
WHEREAS, as of December 31, 2002, the Carpenter Business Park Acquisition has an
outstanding debt balance of $116,000, which needs to be paid off from the proceeds of the
sale, and
WHEREAS, the remaining portion of the proceeds, $262,977.92, can be used by the City
for any purpose and have been included in the 2003 Budget as revenue to assist with
balancing the 2003 Budget; now, therefore, be it
RESOLVED, That Common Council hereby establishes a Mandatory Debt Reserve #28
Carpenter Park Proceeds in an amount not to exceed $378,977.92, and be it further
RESOLVED, That the City Controller is hereby directed to pay off the outstanding debt on
the Carpenter Business Park Project of $116,000 and use the remaining portion as
revenue from Sale of Property in the 2003 Budget.
Mayor Cohen clarified that the reason that the debt is not being immediately paid is
because the City is not allowed to do that given the nature of the debt instrument.
A vote on the resolution resulted as follows:
Carried Unanimously
12.6 Cable Television Franchise Renewal - Resolution
By Alderperson Vaughan: Seconded by Alderperson Manos
RESOLUTION 2002-______
A resolution to approve a cable television franchise renewal agreement between the City
of Ithaca and Time Warner Entertainment-Advanced Newhouse Partnership.
WHEREAS, an application for renewal of a cable television franchise has been duly
made to the Common Council of the City of Ithaca, Tompkins County, New York, by
TIME WARNER ENTERTAINMENT-ADVANCED/NEWHOUSE PARTNERSHIP, a New
York General Partnership, organized and existing under the laws of the State of New
York, d/b/a Time Warner Cable with a local place of business located at 519 West State
Street, Ithaca, New York 14850, and
WHEREAS, TIME WARNER ENTERTAINMENT-ADVANCED/NEWHOUSE
PARTNERSHIP is the holder of a cable television franchise in the City of Ithaca, and
WHEREAS, TIME WARNER ENTERTAINMENT-ADVANCED/NEWHOUSE
PARTNERSHIP seeks approval of an agreement to renew Time Warner Entertainment-
Advanced Newhouse Partnership’s cable television franchise for an additional ten (10)
years commencing on the date the agreement is granted a certificate of confirmation by
the New York State Public Service Commission, and
November 6, 2002
22
WHEREAS, the Franchise Renewal Agreement would bring the franchise into
conformity with certain provisions of the Federal Cable Communications Policy Act of
1984, as amended, and certain court rulings, and
WHEREAS, a public hearing was held at the Boynton Middle School, 1601 North
Cayuga Street, Ithaca, New York on January 28, 1999 at 7:30 p.m. to afford the public
an opportunity to identify the future cable-related community needs and interests and to
review the performance of the cable operator under the then current franchise term, and
WHEREAS, a notice of said public hearing was published in the Ithaca Journal on
January 14, 1999, and
WHEREAS, an additional public hearing was held at the Greater Ithaca Activities Center
(GIAC), 318 North Albany Street, Ithaca, New York on February 1, 1999 at 7:30 p.m.
and notice of said public hearing was published in the Ithaca Journal on January 23,
1999, and
WHEREAS, Common Council has reviewed the final proposed franchise renewal
agreement,
NOW, THEREFORE, the Common Council of the City of Ithaca finds that:
1. Time Warner Entertainment-Advanced Newhouse Partnership d/b/a Time
Warner Cable has substantially complied with the material terms and
conditions of its existing franchise and with applicable law; and
2. The quality of Time Warner Entertainment-Advanced Newhouse
Partnership’s service, including signal quality, response to customer
complaints and billing practices has been reasonable in light of community
needs; and
3. Time Warner Entertainment-Advanced Newhouse Partnership has the
financial, legal and technical ability to provide the services, facilities and
equipment as set forth in its proposal, and
4. Time Warner Entertainment-Advanced Newhouse Partnership can
reasonably meet the future cable-related community needs and interests,
taking into account the cost of meeting such needs and interests.
RESOLVED, That the Common Council of the City of Ithaca hereby renews the cable
television franchise of Time Warner Entertainment-Advanced Newhouse Partnership in
the City of Ithaca for ten (10) years commencing on the date the agreement is granted a
certificate of confirmation by the New York State Public Service Commission and
expiring ten (10) years from said date of confirmation, and be it further
RESOLVED, That the Common Council of the City of Ithaca hereby confirms that this
Franchise Renewal Agreement replaces the original franchise granted and all
amendments thereto, and be it further
RESOLVED, That Common Council authorizes the Mayor to sign said cable television
franchise renewal agreement on behalf of the City of Ithaca and to take the necessary
steps, in cooperation with Time Warner Entertainment-Advanced Newhouse
Partnership, to assure certification of said cable television franchise renewal by the New
York State Department of Public Service.
A copy of the franchise renewal agreement will be kept on file in the City Clerk’s office.
Common Council members thanked Alderperson Vaughan, the Mayor, Information
Technology Director Duane Twardokus, and Assistant City Attorney Patricia Dunn for all of
the time and effort they put into this agreement.
Extension discussion followed on the floor regarding changes that had been made with
this agreement and the lack of discounts for senior citizens.
A vote on the Resolution resulted as follows:
Carried Unanimously
November 6, 2002
23
12.7 An Ordinance to Amend the Title of Chapter 152 entitled “Cable
Communications Systems”
By Alderperson Vaughan: Seconded by Alderperson Whitmore
WHEREAS, since 1988, new communications technologies have developed which
require regulation by the City of Ithaca, and
WHEREAS, for ease of reference, it would be most efficient for all communications
regulations to be contained in the same chapter of the Code, now therefore
ORDINANCE 02- ____
BE IT ORDAINED AND ENACTED by the Common Council of the City of Ithaca, New
York, as follows:
Section 1. The City of Ithaca Municipal Code, Chapter 152 entitled “Cable
Communications Systems” is hereby amended as follows:
A. The title of Chapter 152 shall be deleted and a new title, “Communications
Technology,” shall be added.
B. The various regulatory ordinances relating to communications technology
contained in Chapter 152 shall be delineated as Articles therein.
Section 2 Effective Date.
This Ordinance shall take effect immediately in accordance with law upon publication of
a notice as provided in the Ithaca City Charter.
Carried Unanimously
12.8 An Ordinance Amending the text of Chapter 152 of the City of Ithaca Municipal
Code, the title of the Ordinance, currently entitled “Cable Communications
Systems” and delineating the Ordinance as “Article I.”
By Alderperson Vaughan: Seconded by Alderperson Sams
Alderperson Vaughan explained that this Ordinance is long and extremely complicated.
Extensive discussion followed on the floor regarding changes that had been made to
the Ordinance and the negotiation process through which they had been made.
Further discussion occurred on the floor regarding issues surrounding the reformation of
the Cable Commission including how members would be appointed, and the role of the
Commission.
A vote on the Ordinance resulted as follows:
Carried 9-0 (Alderperson Mack
absent from vote)
The full text of this Ordinance is located at the end of the minutes.
12.9 AN ORDINANCE TO AMEND THE CODE OF THE CITY OF ITHACA TO ADD
PROVISIONS RELATING TO TELECOMMUNICATIONS FRANCHISING AND
TELECOMMUNICATIONS AND CABLE TELEVISION SYSTEMS.
By Alderperson Pryor: Seconded by Alderperson Whitmore
Ayes (8) Manos, Hershey, Peterson, Whitmore, Cogan, Pryor, Sams
Blumenthal
Nays (0)
Abstentions (2) Vaughan, Mack
Carried
The full text of this Ordinance is located at the end of the minutes.
November 6, 2002
24
NEW BUSINESS:
13.1 Mayor - Temporary Parking Agreements- Resolution
By Mayor Cohen: Seconded by Alderperson Pryor
WHEREAS, the City may shortly begin reconstruction of an existing parking garage and
construction of a new parking facility; and
WHEREAS, it is may be necessary to locate temporary parking to accommodate
parking for those wishing to visit or work in the downtown area; and
WHEREAS, the Mayor and others have been exploring alternative parking sites; now,
therefore, be it
RESOLVED, That the Mayor, upon advice and review by the City Attorney, is
authorized to enter into alternate parking arrangement agreements, including
indemnification and hold harmless agreements.
Carried Unanimously
APPROVAL OF MINUTES:
Approval of July 2, 2002 Regular Common Council Meeting Minutes
By Alderperson Peterson: Seconded by Alderperson Sams
RESOLVED, That the July 2, 2002 Regular Common Council Meeting Minutes be
approved as published.
Carried Unanimously
Approval of July 10, 2002, Continuation of July 2, 2002 Regular Common Council
Meeting Minutes
By Alderperson Peterson: Seconded by Alderperson Sams
RESOLVED, That the July 10, 2002 Special Common Council Meeting Minutes be
approved as published.
Carried Unanimously
Approval of July 24, 2002, Regular Common Council Meeting Minutes
By Alderperson Peterson: Seconded by Alderperson Sams
RESOLVED, That the July 24, 2002 Regular Common Council Meeting Minutes be
approved as published.
Carried Unanimously
Approval of April 3, 2002 Regular Common Council Meeting Minutes
By Alderperson Peterson: Seconded by Alderperson Sams
RESOLVED, That the April 3, 2002, Regular Common Council Meeting Minutes be
approved as published
Carried Unanimously
Approval of March 6, 2002 Regular Common Council Meeting Minutes
The minutes for March 6, 2002 were withdrawn and will be considered at a future
meeting.
MAYOR’S APPOINTMENTS:
Planning & Development Board
By Alderperson Hershey: Seconded by Alderperson Sams
RESOLVED, That Jill Burlington be appointed to the Planning & Economic
Development Board with a term to expire December 31, 2002.
Carried Unanimously
COMMUNICATIONS FROM THE MAYOR:
Mayor Cohen stated that the Special Common Council meetings on November 13 and
20, 2003 would start at 7:30 p.m.
November 6, 2002
25
Alderperson Sams announced that the guest speaker for the Human Rights
Commission Annual Dinner is the UN Delegate from Zambia. The Dinner will be held
on November 14, 2003 from 6:30 to 9:30 pm at the Holiday Inn.
ADJOURNMENT:
On a motion the meeting adjourned at 12:30 A.M.
________________________ _______________________
Julie Conley Holcomb, CMC Alan J. Cohen,
City Clerk Mayor
C. An Ordinance to Amend Chapter 325 of the City of Ithaca Municipal Code
Entitled “Zoning” Regarding Telecommunications Facilities and Services -
Personal Wireless Service Facilities
ORDINANCE NO. 02 –
BE IT ORDAINED AND ENACTED by the Common Council of the City of Ithaca as
follows:
Section 1. Chapter 325 of the City of Ithaca Municipal Code entitled “Zoning” is hereby
amended to add the following language:
§ 325.29.4-1. Legislative intent.
A. The City of Ithaca Common Council, Ithaca, New York, finds that personal
wireless communications services and personal wireless service facilities comprise a
rapidly growing segment of the utilities and communications sector and have merit and
value for the community as a whole. The United States Congress adopted the
Telecommunications Act of 1996, including Section 704 which defines personal wireless
service and personal wireless service facilities and preserves local zoning authority over
decisions regarding the placement, construction and modification of personal wireless
service facilities except for the following five limitations:
(1) A local government shall not unreasonably discriminate among
providers of functionally equivalent services.
(2) A local government shall not prohibit or have the effect of
prohibiting the provision of personal wireless services.
(3) A local government shall act on any requests for authorization to
place, construct or modify personal wireless service facilities within a reasonable period
of time after the request is filed.
(4) A local government shall put any decision to deny a personal
wireless service facility into writing and support such decision by substantial evidence
contained in a written record.
(5) A local government shall not regulate personal wireless service
facilities on the basis of the environmental effects of radio frequency emission to the
extent that such facilities comply with the Federal Communications Commission
Guidelines for Evaluating the Environmental Effects of Radio frequency Radiation (FCC
Guidelines).
B. The City of Ithaca is authorized to adopt laws to provide for the health,
safety and welfare of the citizens of the City of Ithaca. The regulation of the placement,
installation and construction of personal wireless service facilities preserves and
protects the health, safety, welfare and general well being of the citizens of the City of
November 6, 2002
26
Ithaca and protects the natural features and aesthetic character of the City of Ithaca.
The City of Ithaca Department of Planning and Economic Development and the City of
Ithaca Common Council have, during the period of a current moratorium, undertaken a
deliberative process to establish policy, standards and procedures related to the
location, siting and design of mounts and antenna arrays for personal wireless services.
C. The purpose and intent of this chapter is to establish standards for the
location, siting and design of personal wireless service facilities, and the goals of this
chapter are to:
(1) Allow for alternative types of personal wireless service facilities in
any location subject to standards.
(2) Encourage the use of existing structures, including, but not limited
to, rooftops, utility poles and steeples, for deploying personal wireless service facilities.
(3) Expedite the review process for those applications choosing the
least intrusive alternative of deploying personal wireless service facilities.
(4) Encourage users of guyed and lattice towers, monopoles and
antennas to locate, site and design them in a way that minimizes the adverse visual
impact of the lattice or guyed towers, monopoles and antennas.
(5) Enhance the ability of the providers of personal wireless services to
provide such services to the community quickly, effectively and efficiently.
(6) Promote personal wireless service facilities compatible with
surrounding land uses and protect the attractiveness, health, safety, general welfare
and property values of the community.
D. Therefore, the Common Council of the City of Ithaca has prepared this
chapter to revise the City of Ithaca Zoning Law to more clearly reflect the above facts.
§ 325.29.4-2. Definitions.
As used in this chapter, the following terms shall have the meanings indicated:
A. Abbreviations.
AGL -- At ground level.
AMSL -- Above mean sea level.
CMRS -- Commercial mobile radio services.
FCC -- Federal Communications Commission.
PWSF -- Personal wireless service facility.
RF -- Radio frequency.
RFR -- Radio frequency radiation.
SMR -- Specialized mobile radio
B. Definition of terms.
AGL -- At ground level. The actual height of the PWSF from the ground to
the highest part of the mount or the antenna, whichever is higher.
ANTENNA -- A whip (omnidirectional antenna), panel (directional
antenna), disc (parabolic antenna) or similar device used for transmission and/or
reception of radio frequency signals.
ANTENNA ARRAY -- One or more whips, panels, discs or similar devices
used for the transmission or reception of radio frequency signals, which may include
omnidirectional antennas (whips), directional antennas (panels) and parabolic antennas
(discs). The antenna array does not include the mount as defined herein.
November 6, 2002
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APPLICANT -- A person or entity with an application before the City for a
permit for a personal wireless service facility (PWSF).
CAMOUFLAGE -- A way of painting and mounting a PWSF that requires
minimal exterior changes to the host structure in order to accommodate the facility.
CARRIER -- A company licensed by the Federal Communications
Commission (FCC) that provides wireless services. A tower builder is not automatically
a carrier.
CELLULAR -- A mobile telephone service operating in the 800 MHz
spectrum.
COAPPLICANT -- Any person and/or entity joining with an applicant in an
application for a permit for a PWSF, including the owner(s) of the PWSF, owner(s) of
the subject property and any proposed tenant(s) for the PWSF.
COLOCATION -- The use of a common PWSF or common site by two or
more wireless license holders or by one wireless license holder for more than one type
of communications technology and/or placement or two or more PWSF's on adjacent
properties.
COMMERCIAL MOBILE RADIO SERVICES (CMRS) -- Any of several
technologies using radio signals at various frequencies to send and receive voice, data
and video as per Section 704 of the Telecommunications Act of 1996, According to the
FCC, these services are "functionally equivalent services." Section 704 of the
Telecommunications Act prohibits unreasonable discrimination among functionally
equivalent services.
CONCEAL -- To enclose a PWSF with a natural or manmade feature
resulting in the facility being either invisible or made part of the feature enclosing it.
DESIGN -- The appearance of PWSF's, such as their materials, colors
and shape.
DISGUISE -- To design a PWSF to appear to be something other than a
PWSF.
ELEVATION -- The measurement of height above sea level. Also "AMSL,"
or "above mean sea level."
ENHANCED SPECIALIZED MOBILE RADIO (ESMR) -- Private land
mobile radio with telephone services.
EQUIPMENT CABINET/EQUIPMENT SHELTER -- An enclosed structure
at the base of the mount within which is housed the equipment for the PWSF, such as
batteries and electrical equipment.
FALL ZONE -- The area on the ground within a prescribed radius from the
base of a PWSF. The fall zone is the area within which there might be a potential
hazard from falling debris or collapsing material.
FEDERAL COMMUNICATIONS COMMISSION (FCC) -- An independent
federal agency charged with licensing and regulating wireless communications at the
national level.
FUNCTIONALLY EQUIVALENT SERVICES -- Cellular, PCS, enhanced
specialized mobile radio, specialized mobile radio and paging. Section 704 of the
Telecommunications Act prohibits unreasonable discrimination among functionally
equivalent services.
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GUYED TOWER -- A monopole or lattice tower that is anchored to the
ground or to another surface by diagonal cables.
HEIGHT -- The distance measured from at ground level (AGL) to the
highest point of a PWSF, including the antenna array. For purposes of measuring
height, all antennas or other attachments mounted on a structure shall be included in
the measurements to determine overall (i.e., combined) height.
LATTICE TOWER -- A type of mount that is usually ground-mounted and
self-supporting with multiple legs and cross-bracing of structural steel.
LICENSED CARRIER -- A company authorized by the FCC to construct
and operate a commercial mobile radio services system. A licensed carrier must be
identified for every PWSF application.
LOCATION -- The area where a PWSF is located or proposed to be
located.
MICROCELL -- Any PWSF that is designed and limited to generate lower
power density than that limited by the FCC Guidelines for Evaluating the Environmental
Effects of Radio frequency Radiation.
MITIGATION -- The reduction or elimination of visual impacts by the use
of one or more methods, including but not limited to concealment, camouflage and
disguise.
MODIFICATION -- The changing of any portion of a PWSF from its
description in a previously approved permit. The FCC definitions for "modification" are
different than local government rules, but for purposes of this law, the definition set forth
herein applies.
MONOPOLE -- The shape of mount that is self-supporting with a single
shaft of wood, steel or concrete and antennas at the top and/or along the shaft.
MOUNT -- The structure or surface upon which antennas are mounted,
e.g.:
(1) ROOF-MOUNTED -- Mounted on the roof of a building.
(2) SIDE-MOUNTED -- Mounted on the side of a building.
(3) GROUND-MOUNTED -- Mounted on the ground.
(4) STRUCTURE-MOUNTED -- Mounted on a structure other than
a building.
(5) INTERIOR-MOUNTED -- Mounted within a building.
PERSONAL WIRELESS SERVICE FACILITY (PWSF) -- A facility for the
provision of personal wireless services, as defined by Section 704 of the
Telecommunications Act of 1996. A PWSF is any facility for the transmission and/or
reception of personal wireless services, usually consisting of an antenna array,
transmission cables, equipment shelter and a mount.
PERSONAL WIRELESS SERVICES -- Any personal wireless service
defined in the Federal Telecommunications Act, which includes Federal
Communications Commission (FCC) licensed commercial wireless telecommunications
services, including cellular, personal communications services (PCS), specialized
mobile radio (SMR), enhanced specialized mobile radio (ESMR), paging as well as
unlicensed wireless services, and common carrier wireless exchange access services.
November 6, 2002
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RADIO FREQUENCY (RF) ENGINEER -- Someone with a background in
electrical engineering or microwave engineering who specializes in the study of radio
frequencies.
RADIO FREQUENCY RADIATION (RFR) -- The emissions from PWSF's
which are by-products of the RF signal.
RADIO FREQUENCY (RF) SIGNAL -- The actual beam or radio waves
sent and received by a PWSF. A signal is the deliberate product of a PWSF. The RF
radiation is the by-product.
SECURITY BARRIER -- A locked, impenetrable wall, fence or berm that
completely seals an area from unauthorized entry or trespass.
SEPARATION -- The distance between one carrier's antenna array and
another carrier's antenna array.
SHORT MOUNTS -- Alternatives to monopoles or guyed and lattice
towers, such as masts or poles. For example, two short poles or three short masts
might be an alternative to one tall lattice tower.
SITE -- That portion of a subject property where a PWSF is to be placed.
Any acceptable location may have several potential sites within it.
SITING -- The method and form of placement of PWSF's on a specific
area of a subject property.
SPECIALIZED MOBILE RADIO (SMR) -- A form of dispatch or two-way
communication used by companies that rent space or time from an SMR carrier, used
primarily for data, delivery vans, truckers or taxis within a small, definable geographic
area.
STANDARDS -- Rules or measures by which acceptability is determined.
Personal wireless service facilities are measured by standards measuring visibility or
safety. Wireless planning tends to regulate PWSF's on three levels: location (or where
the PWSF site can go), siting (or how the PWSF is placed within its setting) and design
(or what the PWSF looks like)
TOWER -- A term used as a modifier (e.g., tower builder) or when
modified (e.g., lattice tower). A monopole is not a tower.
UNLICENSED WIRELESS SERVICES -- Commercial mobile services that
can operate on public domain frequencies and therefore need no FCC license for their
sites.
WIRELESS COMMUNICATIONS -- Any form of signaling by wireless,
including personal wireless services, that require a transmitter, a receiver and a path,
sometimes straight, sometimes indirect, between them.
C. MEASUREMENTS – Whenever this Chapter refers to horizontal feet, the
distance shall be measured in all directions from the identified object.
§ 325.29.4-3. Purpose and intent; applicability.
A. Purpose and intent. The purpose and intent of this chapter is to establish
standards for the location, siting and design of PWSF's, and the goals of this chapter
are to:
(1) Allow for alternative types of PWSF's in any location subject to
standards.
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(2) Encourage the use of existing structures, including but not limited to
rooftops and utility poles, for deploying PWSF's.
(3) Expedite the review process for those applications choosing the
least intrusive alternative of deploying PWSF's.
(4) Encourage users of guyed and lattice towers, monopoles and
antennas to locate, site and design them in a way that minimizes the adverse visual
impact of the lattice or guyed towers, monopoles and antennas.
(5) Enhance the ability of the providers of personal wireless services to
provide such services to the community quickly, effectively and efficiently.
(6) Promote PWSFs' compatibility with surrounding land uses, and
protect the attractiveness, health, safety, general welfare and property values of the
community.
B. Preexisting personal wireless service facilities.
(1) Permits and renewals.
(a) A PWSF for which a building permit has been issued prior to
the effective date of this chapter shall be deemed a permitted use, subject to the
conditions of that permit. When an unpermitted PWSF is identified by the City of Ithaca
to be attached to a mount approved for another use or PWSF, a separate permit must
be applied for it, even when:
[1] Sharing a legal mount;
[2] Already in operation, and
[3] Duly licensed by the Federal Communications
Commission.
(b) The issuance of permit renewals or other new permits for
such facilities shall be in accordance with the provisions of this chapter. Unpermitted
PWSF's will be considered out of compliance with this chapter.
(2) Placement of any attached array, microcell or any other portions of
a PWSF on an existing structure, whether legally nonconforming or in, as well as out of,
compliance, shall require a permit to be obtained for the PWSF under the terms of this
chapter.
(3) Any carrier with at least one preexisting PWSF in the City of Ithaca
that is out of compliance with the City of Ithaca building or zoning requirements shall not
be eligible for any new approvals of personal wireless service facilities by the City until
the preexisting PWSF or PWSF's are brought into compliance with this chapter.
C. Exclusions for amateur radio facilities. This chapter shall not govern the
installation of any amateur radio facility that is owned and operated by a federally
licensed amateur radio station operator or is used exclusively for noncommercial,
receive-only antennas.
D. Unpermitted facilities, mounts or equipment ineligible for colocation.
(1) No permit shall be issued under this chapter for a request to
colocate, attach or share an existing PWSF site, mount or facility when such existing
site, mount or facility is found to have one or more PWSF's without permits and/or any
structure, mount or facility is found to lack one or more building permits, electrical
permits or any other permits required by the City of Ithaca.
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(2) Any application by a wireless carrier or other entity shall not be
approved by the City of Ithaca if that wireless carrier has a preexisting PWSF on, or the
other entity owns, a mount, rooftop or tower, on which there is any unpermitted PWSF
until that PWSF is brought into compliance with this chapter.
E. Relationship to other laws. This chapter shall supersede conflicting
requirements contained in any other provision of the City of Ithaca Code.
§ 325.29.4-4. Land use and PWSF classifications.
A. No PWSF shall be permitted except in accordance with the provisions of
this chapter of the City of Ithaca Zoning Ordinance.
B. All PWSF's shall be classified as follows:
(1) Tier One. This tier is limited to applications that:
(a) Place PWSF's on existing utility poles (telephone poles,
utility distribution poles, streetlights and traffic signal stanchions); or
(b) Place PWSF's on new utility poles when the carrier specifies
a utility pole that meets the City of Ithaca specifications for utility poles; and
(c) Meet all location standards, design standards and safety
standards in this chapter. In the event that any of the standards in the chapter are in
conflict for a particular application, one or the other conflicting standard shall be met.
The decision of which standard shall be met shall be subject to the approval of the City
of Ithaca.
(2) Tier Two. This tier is limited to applications that:
(a) Do not qualify for Tier One status; and
(b) Propose to place PWSF's on or in buildings or propose to
conceal PWSF's in natural or man-made features approved by the City of Ithaca
Planning and Development Board; and
(c) Meet all location standards, design standards and safety
standards in this chapter. In the event that any of the standards in the chapter are in
conflict for a particular application, one or the other conflicting standard shall be met.
The decision of which standard shall be met shall be subject to the approval of the City
of Ithaca.
(3) Tier Three. This tier is limited to applications that:
(a) Do not qualify as either Tier One or Tier Two status; and
(b) Require the erection, establishment, siting, location,
construction, modification or development of a guyed tower, monopole, lattice tower or
similar structure as determined by the City of Ithaca; and
(c) Meet all location standards, design standards and safety
standards in this chapter. In the event that any of the standards in the chapter are in
conflict for a particular application, one or the other conflicting standard shall be met.
The decision of which standard shall be met shall be subject to the approval of the City
of Ithaca.
C. All PWSF's require final approval pursuant to Chapter 276, Site Plan
Review, and issuance of a building permit and certificate of building compliance from
the Building Commissioner or his/her designee.
November 6, 2002
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§ 325.29.4-5. Standards.
The approval of PWSF's shall be subject to meeting or exceeding the following
standards
A. Location standards.
(1) Opportunity sites. A PWSF shall be located at one of the following
opportunity sites:
(a) Utility transmission towers.
(b) Public water tanks.
(c) Inside or concealed around steeples or similar architectural
features.
(d) Rooftops.
(e) Utility poles in publicly owned rights-of -way or similar public
properties as identified by the City of Ithaca.
(2) Avoidance areas. A Tier 2 or Tier 3 PWSF shall not be located in
the following avoidance areas:
(a) Flood hazard zones.
(b) Historically and culturally significant resources.
(c) Unique natural areas and/or critical environmental areas.
(d) Parks, greenways, and natural areas.
(e) Scenic or visual corridors as defined by the City.
(f) Wetlands.
(g) Lakeshores and waterways.
(3) Interpretation of opportunity sites and avoidance areas shall be
based on maps or aerial photographs provided by the City of Ithaca Department of
Planning and Development and/or the applicant.
(4) Personal wireless service facilities may also be permitted in areas
that are not opportunity sites subject to the following siting, design and safety standards
and permitted in avoidance areas subject to the following siting, design and safety
standards. For PWSF's desiring to locate in avoidance areas as set forth in (2)(b)
above (historically and culturally significant resources) the City of Ithaca Landmarks
Preservation Commission must approve the application.
(5) These standards apply regardless of radio frequency (RF)
engineering considerations.
B. Siting standards.
(1) Personal wireless service facilities shall meet the following siting
standards:
(a) To the greatest extent possible, PWSF's shall be concealed
within existing structures or where the PWSF will be camouflaged, or on inconspicuous
mounts.
(b) Placement within trees shall be encouraged, but no
antennas shall extend higher than 10 feet above the average tree height (within 300
horizontal feet when measured along the ground).
(c) Placement on existing roofs or nonwireless structures shall
be favored over ground-mounted PWSF's.
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(d) Roof-mounted PWSF's shall not project more than 10
additional feet above the height of a building. If the roof-mounted PWSF's project above
the height limit, they may be appropriately screened.
(e) Side-mounted PWSF's shall not project more than 20 inches
from the face of the mounting structure.
(2) These standards shall apply regardless of RF engineering
considerations.
C. Design standards.
(1) Personal wireless service facilities shall meet the following design
standards:
(a) Color. All PWSF's shall be painted or complemented with
colors that match or complement their surroundings.
(b) Size. The silhouette of the PWSF shall be reduced to the
minimum visual impact.
(c) Personal wireless service facilities near or within view of
residences shall either:
[1] Provide underground vaults for equipment shelters; or
[2] Place equipment shelters within enclosed structures
approved by the City of Ithaca and the Planning and
Development Board.
(d) Equipment. The following types of equipment shall be
discouraged:
[1] Roof-mounted monopoles, lattice towers or guyed
towers.
[2] Ground-mounted lattice towers.
[3] Ground-mounted guyed towers.
(e) Height shall be kept to a minimum.
[1] Heights of PWSF's shall be no higher than the height
of the uppermost height of nearby structures (within 300 horizontal feet when measured
along the ground), regardless of prevailing height limits in the zoning district.
[2] In the event that there are no nearby buildings (within
300 horizontal feet when measured on the ground) of the proposed site of the PWSF,
the following shall apply:
[a] All ground-mounted PWSF's (including the security
barrier) shall be surrounded by nearby dense tree growth for a radius of 20 horizontal
feet (when trunk center lines are measured on the ground) from the PWSF in any
direction. These trees can be existing on the subject property or installed to meet the
twenty-foot requirement as part of the proposed PWSF or they can be a combination of
both.
[b] Ground-mounted PWSF's shall not project more
than 10 feet above the average height of the nearby trees as referenced in (2)(a) above.
(2) These standards apply regardless of RF engineering
considerations.
November 6, 2002
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D. Safety standards. Personal wireless service facilities shall meet the
following safety standards:
(1) Hurricane and tornado design standards shall be those of the local
building codes used in the City of Ithaca or EIA-TIA 22 (latest version), whichever is
stricter.
(2) Roof mounts on buildings shall have railings, if necessary, to
protect workers. Notices shall be posted, as directed by the City Building Commissioner
to warn of radio frequency radiation.
§ 325.29.4-6. Fall zone and setback requirements for Tier Three PWSF's.
Tier Three applications shall meet the following standards
A. Fall zone.
(1) No habitable structure or outdoor area where people congregate
shall be within a fall zone of two times the height of the PWSF or its mount.
(2) No adjoining property line shall be within the fall zone of a radius equal
to the height of the PWSF.
B. Setback.
(1) All PWSF's, including mounts and equipment shelters, shall comply
with the minimum setback requirements of the applicable zoning district as set forth in
the City of Ithaca Zoning Ordinance.
(2) The antenna array for an attached PWSF, with the exception of a
side-mounted PWSF, is exempt from the setback requirements of this chapter and from
the setback for the zoning district in which it is located, provided that no such antenna
array shall project more than five feet horizontally from the attachment structure at the
point of attachment.
(3) No portion of any PWSF shall project into a required setback more
than the maximum projection permitted in the zoning district in which the facilities are
located, except as otherwise provided in this chapter.
(4) On parcels with a principal building housing a principal use, all
components of the PWSF shall be located behind the building line.
§ 325.29.4-7. Submittal requirements.
An applicant shall submit the following information as part of an application for a PWSF:
A. Application information.
(1) Name, address and telephone number of applicant and all
coapplicants as well as any agents for the applicant or coapplicants.
(a) Coapplicants shall include the landowner(s) of the subject
property, licensed carrier(s) and tenant(s) for the PWSF.
(b) Either an applicant or a coapplicant must be a licensed
carrier.
(2) The applicant shall provide a copy of the lease between the
applicant and coapplicant(s) and shall provide a description which shall include the
following:
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(a) Whether the landowner can enter into leases with other
carriers for colocation and that the landowner is aware that any future colocation will be
subject to a new application.
(b) How the landowner will remove the PWSF in the event that
the licensed carrier fails to remove it upon abandonment.
(3) Original signatures for the applicant and all coapplicants applying for a
building permit and/or site plan review, if the applicant or coapplicant will be represented
by an agent, original signature of applicant and/or coapplicant authorizing the agent to
represent the applicant and/or coapplicant. Photo reproductions of signatures will not be
accepted.
B. Location information. The following information is required for all
applications:
(1) Identification of the subject property by including the name of the
nearest road or roads, and street address, if any.
(2) Tax parcel number of subject property.
(3) Zoning district designation for the subject parcel and for all parcels
within 1,000 feet of the property lines of the subject parcel.
(4) A line map to scale showing the subject property and all properties
within 1,000 feet and the location of all buildings, including accessory structures, on all
properties shown.
(5) A City-wide map showing the other existing PWSF's in the City and
outside the City within one mile of its corporate limits.
(6) The specific locations for this carrier of all existing and future
PWSF's in the City on a City-wide map.
C. Siting information.
(1) A one-inch-equals-two-hundred-feet scale vicinity plan showing the
following:
(a) Property lines for the subject property.
(b) Property lines of all properties adjacent to the subject
property.
(c) Tree cover on the subject property and all properties
adjacent to the subject property, by species and average height, as measured by or
available from a verifiable source.
(d) Outline of all existing buildings, including purpose (e.g.,
residential buildings, garages, accessory structures, etc.), on subject property and all
properties adjacent to the subject property.
(e) Proposed location of antenna, mount and equipment
shelter(s).
(f) Location of all roads, public and private, on the subject
property and on all properties adjacent to the subject property, including driveways
proposed to serve the PWSF.
(g) Distances, at grade, from the proposed PWSF to each
building on the vicinity plan.
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(h) Contour lines.
(i) Lines representing the sight line showing viewpoint (point
from which view is taken) and visible point (point being viewed) from "Sight lines"
subsection below.
(2) Sight lines and photographs as described below:
(a) Sight line representation. A sight-line representation shall be
drawn from the closest facade of each residential building (viewpoint) included on the
vicinity plan to the highest point (visible point) of the PWSF. Each sight line shall be
depicted in profile, drawn at one-inch-equals-forty-feet scale. The profiles shall show all
intervening trees and buildings. In the event that there is only one (or more) residential
building on the vicinity plan, there shall be at least two sight lines from the closest
habitable structures, if any.
(b) Existing (before condition) photographs. Each sight line shall
be illustrated by one four-inch-by-six-inch color photograph of what can currently be
seen from the residential building(s).
(c) Proposed (after condition). Each of the existing-condition
photographs shall have the proposed PWSF superimposed on it to show what will be
seen from residential buildings if the proposed PWSF is built.
(3) A one-inch-equals-forty-feet scale site plan showing the following:
(a) The entire subject property, including all lands held in
effective common ownership, property lines and roads (public and private) adjacent to
the subject property.
(b) All existing buildings, including accessory structures.
(c) All existing vegetation, by mass or individually by diameter
(four feet from the ground) of each stand-alone tree or shrub. Tree masses or individual
stand-alone trees shall be identified by specie(s).
(d) Proposed security barrier, indicating type and extent as well
as point of controlled entry.
(e) All proposed changes to the existing property, including
grading, vegetation removal and temporary or permanent roads and driveways.
(f) Representations, dimensioned and to scale, of the proposed
mount, antennas, equipment shelters, cable runs, parking areas and any other
construction or development attendant to the PWSF.
(4) Siting elevations, or views at-grade from the north, south, east and
west around the proposed PWSF plus from all existing public and private roads that
serve the subject property. Elevations shall be at either one-quarter-inch-equals-one-
foot or one-eighth-inch-equals-one-foot scale and show the following:
(a) Antennas, mounts and equipment shelter(s), with total
elevation dimensions and AGL of the highest point.
(b) Security barrier. If the security barrier will block the views of
the PWSF, the barrier drawing shall be cut away to show the view behind the barrier.
(c) Any and all structures on the subject property.
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(d) Existing trees and shrubs at current height and proposed
trees and shrubs at proposed height at time of installation with approximate elevations
dimensioned.
(e) Grade changes, or cuts and fills, to be shown as original
grade and new grade line, with two-foot contours AMSL.
D. Design information.
(1) Equipment brochures for the proposed PWSF, such as
manufacturer's specifications or trade journal reprints. These shall be provided for the
antennas, mounts, equipment shelters, cables, as well as cable runs, and security
barrier, if any.
(2) Materials of the proposed PWSF specified by generic type and
specific treatment (e.g., anodized aluminum, stained wood, painted fiberglass, etc.).
These shall be provided for the antennas, mounts, equipment shelters, cables, as well
as cable runs, and security barrier, if any.
(3) Colors of the proposed PWSF represented by a color board
showing actual colors proposed. Colors shall be provided for the antennas, mounts,
equipment shelters, cables, as well as cable runs, and security barrier, if any.
(4) Dimensions of the PWSF specified for all three directions: height,
width and breadth. These shall be provided for the antennas, mounts, equipment
shelters and security barrier, if any.
(5) Appearance shown by at least two scaled cross-sections of the
PWSF within the subject property. The cross sections shall be provided for the
antennas, mounts, equipment shelters, cables, as well as cable runs, and security
barrier, if any, for the total height, width and breadth.
(6) Landscape plan, including existing trees and shrubs and those
proposed to be added, identified by size of specimen at installation and species.
E. Narrative information.
(1) Carrier shall provide a:
(a) Certified copy of Form 6000 on file with the FCC.
(b) Certified copy of an FCC license (radio authorization form).
(2) Carrier shall identify:
(a) Site latitude.
(b) Site longitude.
(c) AGL to the radiation center and the top of highest projection
(e.g., lightning rod).
(3) Applicants should provide two alternatives to the proposed PWSF.
(a) Alternatives should comply with criteria in § 325.29.4-8 of
this chapter for differences between the proposed PWSF and the alternatives.
(b) Failure of the applicant to provide two alternatives shall
constitute an incomplete application.
F. Geographic information.
(1) Area to be served by the proposed PWSF.
(a) Within the City of Ithaca.
(b) Outside the City of Ithaca.
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(2) Tax Map showing adjoining (abutting) properties.
(3) Land use map showing existing land use.
(4) Zoning Map showing existing zoning.
(5) Relationship to other PWSF's.
(a) Existing and/or proposed by the carrier.
(b) Existing for other carriers.
(c) Proposed by other carriers.
G. Fees. The City shall have the right to properly plan for and evaluate
applications for PWSF's and to charge reasonable fees for such services to the
applicant. The City may retain future independent consultants and experts to assist City
staff with proper planning for PWSF's. The fee for applications shall include, but shall
not be limited to, the prorated share for each applicant of such costs for the independent
consultants and experts. The fee shall be prorated among all applications on an equal
basis. The City also has the right to charge fees for reviews and evaluations done by
City staff. Such fees shall include, but shall not be limited to, the following:
(1) Site plan applications.
(2) Variance or special permit applications.
(3) Building permit applications.
(4) Other review fees. The City shall have the right to retain
independent technical consultants and experts that it deems necessary to properly
evaluate applications for PWSF's. This fee will be assigned to the applicant and shall
not exceed $10,000.
§ 325.29.4-8. Alternatives analysis and comparison.
Each application for a PWSF should also contain at least two alternatives that differ
from the PWSF proposed in the application.
A. Differences. The alternatives need not be totally different from the
proposed PWSF; however, the alternatives should contain measurable differences,
such as:
(1) Height. An alternative can be identical to the proposed PWSF but
for a shorter height.
(2) Number. An alternative could be for two or more PWSF's that are
shorter than the proposed PWSF.
(3) Location. An alternative could be located on a different property
than the proposed PWSF.
(4) Siting. An alternative could be in a different place on the same
property as the proposed PWSF.
(5) Design. An alternative could be of the same height, location and
siting as the proposed PWSF, but be designed to appear differently.
B. Submittal requirements for alternatives. The materials submitted for each
alternative should show only the differences between each of the alternatives and the
proposed PWSF.
C. Comparison of proposed personal wireless service facility and
alternatives. The City of Ithaca Department of Planning and Development staff shall
compare the proposed PWSF to the two required alternatives on the basis of the
following:
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(1) Change in community scale, as exhibited in relative height, mass or
proportion of the PWSF within its proposed surroundings.
(2) New visible elements proposed on a contrasting background.
(3) Different colors and textures proposed against a contrasting
background.
(4) Use of materials that are foreign to the existing built environment.
(5) Conservation of opportunities to maintain community scale, not
compromising buffering areas and low-lying buildings so as to start a trend away from
the existing community scale.
(6) Amount and diversity of landscaping and/or natural vegetation,
(7) Preservation of view corridors, vistas and view sheds.
(8) Continuation of existing colors, textures and materials.
D. Ranking of proposed personal wireless service facility and alternatives.
The City of Ithaca Department of Planning and Development staff shall rank the
proposed PWSF and each alternative based on the above criteria. The ranking of the
proposed PWSF and each alternative shall be submitted to the appropriate review
board along with each application. The reviewing board shall consider the alternatives
along with the proposed PWSF.
§ 325.29.4-9. Tiered permit process.
A. Department of Planning and Development. After assigning each
application to a tier, the City of Ithaca Department of Planning and Development shall:
(1) Prepare an analysis of the alternatives for each application
according to § 325.29.4-8 of this chapter.
(2) Prepare a staff report for each application based on § 325.29.4-11
of this chapter.
(3) Forward the application, alternative analysis and staff report to the
reviewing board.
B. Findings. All decisions resulting in approvals or denials by the reviewing
board shall be in writing and supported by findings of fact and conclusions of law based
upon competent substantial evidence in the record.
§ 325.29.4-10. Application procedures.
Applicants shall use the following procedure when applying for PWSF's, although City
staff may waive some steps if they are redundant.
A. Preapplication conference. Applicants shall meet with City staff prior to
submitting an application for a PWSF.
(1) At the preapplication conference:
(a) The applicant shall inform City staff of the location of the
proposed facility, as well as its scale and design.
(b) City staff shall inform the applicant about the classification of
the application and the appropriate procedures to be followed.
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(2) If the applicant disagrees with the classification or procedures, the
applicant may appeal to the Planning and Development Board for a determination.
B. Application form. The applicant shall submit the City's application form and
all required items as specified in Chapter 325 (Zoning) and in § 325.29.4-7 above when
applying for PWSF's.
C. Initial review by the Department of Planning and Development. The City of
Ithaca Department of Planning and Development shall:
(1) Perform an alternatives analysis in accordance with § 325.29.4-8
above.
(2) Forward the application to the appropriate board for review and
action.
§ 325.29.4-11. Staff reports.
A. Tier One applications. Tier One applications do not need staff reports.
B. Tier Two and Tier Three applications. The City of Ithaca Department of
Planning and Development shall prepare staff reports for Tier Two and Three
applications. The staff report shall contain the following:
(1) Description of the proposed PWSF.
(a) Other PWSF's in the area.
(b) Nearest three PWSF sites to the proposed PWSF for the
same carrier.
(2) Location.
(a) Identification of whether the proposed PWSF is an
avoidance area.
(b) Identification of whether the proposed PWSF is at an
opportunity site.
(c) Determination of whether location standards have been met.
(3) Siting.
(a) Determination of whether siting standards have been met.
(b) Identification of any necessary practical measures to avoid,
minimize and/or mitigate (in that order of preference) adverse impacts of the proposed
PWSF.
(4) Design.
(a) Type of mount.
(b) Type of antenna(s).
(c) Treatment of equipment cabinet or shelter.
(d) Determination of whether design standards have been met.
(5) Alternatives analysis.
(a) Alternatives provided by the applicant.
(b) Alternatives studied by City staff.
(c) Comparison and ranking of the proposed PWSF and the
alternatives as provided in § 325.29.4-8.
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(6) Description of narrative attachments.
(7) Recommended decision.
(a) Findings of fact.
(b) Approve or deny, with specific reasons included.
§ 325.29.4-12. Modifications.
The City of Ithaca shall require the review and approval of all modifications to PWSF's.
A. Types of modification. A modification of a PWSF is any of the following:
(1) Change in technology used for the PWSF, such as an "overlay."
(2) Addition or replacement of any equipment in the PWSF, excluding
direct, like-for-like substitutions.
(3) Change in design of the PWSF.
(4) Addition to any PWSF for the purpose of colocation.
B. Applications for modification. Applicants for modifications shall submit an
application to the City for a modified PWSF. The application shall include all materials
required in § 325.29.4-7 that would change due to the modification.
C. Subsequent ownership. Any permit issued pursuant to this chapter shall
not be transferable in any way. Any subsequent owner of the PWSF or the subject
property shall be required to obtain a permit in accordance with this chapter.
§ 325.29.4-13. Colocations/public sites.
A. Worst-case review. The City of Ithaca shall review applications for
colocations on the basis of all positions on the mount, i.e., the cumulative, worst-case
condition.
B. Colocation review includes entire facility. Applications for colocations on
mounts, when they are constructed prior to the effective date of this chapter, require
review of the existing mount as well as colocation under the requirements of this
chapter.
C. Colocations not previously reported. Applications for colocations on
mounts constructed after the effective date of this chapter, when they did not previously
show the proposed colocation, require review of the existing mount as well as
colocation under the requirements of this chapter.
D. Public sites. The City of Ithaca shall work with carriers to consider the
siting of PWSF's on appropriate City-owned or other publicly owned property, by
identifying existing structures, the appropriate contact persons and the appropriate
leasing procedures.
§ 325.29.4-14. Registry, monitoring, inspection, abandonment and obsolescence.
A. Registry. Each carrier shall file the following information with the City on
an annual basis, beginning with the date of approval.
(1) Owner/lessee/intermediary/agent and carrier(s) at the site.
(2) Location by latitude and longitude, addresses and parcel numbers.
(3) Height, AGL.
(4) Colocation status and capability (including if a former colocation
has been removed).
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(5) Last date at which site was modified and the nature of the
modification.
(6) A list of toxic/hazardous materials at the PWSF (including in the
equipment shelter).
(7) Instructions for emergency personnel on the approach/action to be
taken in case of an emergency involving any toxic/hazardous
substances.
(8) The name and telephone number of a representative of the carrier
to be contacted in the event of any emergency at the PWSF site.
The contact representative is to be available on a twenty-four-hour-
a-day, seven-days-a-week, three hundred sixty-five days a year
basis.
B. Inspection.
(1) The owner or operator of PWSF shall provide for and conduct an
inspection of mounts at least once every five years. A report shall be provided to the
City of Ithaca Building Commissioner verifying compliance with previous approvals and
the City Code.
(2) The owner or operator of PWSF shall provide for and conduct an
inspection of radio frequency radiation at least once every two years by a licensed radio
frequency engineer. Three copies of a report shall be provided to the City of Ithaca
Building Commissioner, who shall forward a copy to the Director of Planning and
Development, verifying that the radio frequency radiation is in compliance with FCC
Guidelines.
C. Abandonment and removal. Any PWSF that is out of peroration for a
continuous period of 12 months shall be considered abandoned, and the owner of such
PWSF shall remove same within 90 days of notice from the City of Ithaca Department of
Planning and Development that the PWSF is abandoned. If such PWSF is not removed
within said 90 days, the City of Ithaca may have the PWSF removed at the PWSF
owner's expense.
D. Hazardous materials. A PWSF shall be registered as a hazardous facility if
petroleum products are used to fuel power supplies or any toxins are contained in
equipment cabinets or shelters or alternative power sources.
§ 325.29.4-15. Radio frequency radiation emissions.
A. FCC Guidelines. A statement certifying that, as proposed, the PWSF
complies with the FCC Guidelines for Evaluating the Environmental Effects of Radio
Frequency Radiation (FCC Guidelines) concerning radio frequency radiation and
emissions shall be provided at the time of final site plan review, or building permit
application for facilities not requiring site plan review.
B. No contravention of FCC Guidelines. A PWSF that meets the FCC
Guidelines shall not be conditioned or denied on the basis of radio frequency impacts.
§ 325.29.4-16. Noise.
No equipment shall be operated at a PWSF so as to produce noise in excess of the
applicable noise standards under the City of Ithaca Noise Ordinance.
§ 325.29.4-17. Lighting and security
A. A PWSF shall not be artificially lighted, except for:
(1) Security and safety lighting of equipment buildings if such lighting is
shielded and directed downward to keep light within the boundaries of the site; and
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(2) Such lighting of the PWSF as may be required by the Federal
Communications Commission, Federal Aviation Administration (FAA) or other
applicable authority installed in a manner to minimize impacts on adjacent residences.
Only red lighting shall be utilized unless otherwise recommended by FAA guidelines.
B. Security barriers. A security barrier, conforming to the City of Ithaca
Zoning Ordinance, may be required around the perimeter of mounts(s) or equipment
structure, and any anchor points. In the case of a roof-mounted PWSF, the security
barrier may need only be around the antenna. The security barrier shall be maintained
by the operator of the PWSF or mount for the life of the installation. No security barrier
is needed around side-mounted PWSF's, but distances from windows and balconies
should conform to § 325.29.4-17(C)(2) below.
C. Security barriers for certain populations. The security barriers around all
PWSF's shall be reviewed by the Planning and Development Board and found to be
acceptable for:
(1) Controlled population: those persons who are trained in procedures
for working near or around radio frequency radiation.
(2) General population: All other persons, some of whom have no
concept of what radio frequency radiation is or how it can cause harm. Members of the
general population should not be allowed within 10 meters of any antenna.
§ 325.29.4-18. Signs/identification plaques.
No signage shall be permitted on any PWSF other than that required for public safety
purposes or by the FCC or F AA, except that each PWSF shall have a weatherproof
plaque appropriately sized to the site and size of the PWSF mounted at eye level
identifying the carrier, frequency and date of permit approval.
§ 325.29.4-19. Screening and landscaping.
A. Natural vegetation. Existing natural vegetation shall be undisturbed to the
greatest extent practicable.
B. Landscaping. Landscaping of disturbed areas of the PWSF site and
security barriers shall be required as follows:
(1) At least one row of evergreen shrubs capable of forming a
continuous hedge at least five feet in height within two years of planting shall be spaced
not more than five feet apart within 15 feet of the site boundary; and
(2) At least one row of evergreen trees or shrubs, at least four feet in
height when planted and spaced not more than 15 feet apart, shall be located interior to
the perimeter of the shrubs required in Subsection B(l) above; and
(3) For ground mounts greater than 200 feet tall, at least one row of
deciduous trees, not less than 11/2 inches' diameter measured three feet above grade
and spaced not more than 20 feet apart, shall be located within the perimeter of the
evergreen trees or shrubs required in Subsection B(2) above.
(4) All security barriers for guyed wire anchor points shall be screened
from view by at least one row of evergreen shrubs spaced not more than five feet apart
and capable of forming a continuous hedge at least five feet in height within two years
of planting.
(5) Existing vegetation, topography, walls and fences combined with
shrubs or other features may be substituted for the required buffers if the Planning and
Development Board finds they:
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(a) Achieve the same degree of screening as the required
buffer; or
(b) Affect the stability, security or maintenance of guyed wires.
(6) Landscaping materials shall consist of xeric or drought-resistant
native species and shall be maintained by the operator of the PWSF for the life of the
installation
§ 325.29.4-20. Access and parking.
A. Parking. Areas sufficient for the temporary off-street parking of at least two
vehicles shall be provided for mounts. The type and configuration of parking shall be
subject to approval by the Planning and Development Board.
B. Private access. A copy shall be provided to the City of Ithaca Department
of Planning and Development of any road maintenance agreement for any site
accessed by private easement.
§ 325.29.4-21. Certificate of Insurance Required.
Adequate and sufficient liability insurance shall be maintained during the construction
period and throughout the life of any PWSF erected within the City of Ithaca. Prior to
the issuance of any necessary permit, whether special permit or building permit,
documentation that liability insurance in the amount of at least One Million Dollars
($1,000,000.00) single occurrence, Three Million Dollars ($3,000,000.00) aggregate has
been secured identifying the City as co-insured shall be submitted to the Department of
Planning and Development. Maintenance without interruption of liability insurance in
like or greater amount with the City named as co-insured as a continuing condition of
any permit or certificate of building compliance.
§ 325.29.4-22. Penalties for offenses; other remedies.
A. Each violation of this chapter, any regulation, order or ruling promulgated
hereunder or any permit issued hereunder shall be punishable by a fine of not more
than $2,500 or imprisonment not exceeding 15 days, or both; a separate offense shall
be deemed committed on each day during which a violation occurs or continues. In
addition to such a fine, the defendant shall pay all costs and expenses incurred by the
City in determining such violation. The foregoing shall be in addition to all other
remedies available under the law to the City or the Common Council.
B. In the event of any actual or impending violation of this chapter, the City,
in addition to other remedies, may institute any appropriate action or proceedings to
prevent, restrain, correct or abate such violation.
C. In addition to other remedies by law, any appropriate action or proceeding,
whether by legal process or otherwise, may be instituted or taken to prevent the
unlawful erection, construction, reconstruction, alteration, repair, conversion,
maintenance or use to restrain, correct or abate such violation, to prevent the use of
said structure or land or to prevent any illegal act, conduct, business or use in or about
such premises.
Section 2. Severability.
It is the declared intent of the City of Ithaca Common Council that, if any section, clause,
phrase or provision of this Ordinance is held invalid or unconstitutional by a court of
competent jurisdiction, such invalidity or unconstitutionality shall not be so construed as
to render invalid or unconstitutional the remaining provisions of this chapter.
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Section 3. Effective Date.
This Ordinance shall take effect immediately in accordance with law upon publication of
a notice as provided in the Ithaca City Charter.
12.8 An Ordinance Amending the text of Chapter 152 of the City of Ithaca Municipal
Code, the title of the Ordinance, currently entitled “Cable Communications
Systems” and delineating the Ordinance as “Article I.”
WHEREAS, since 1988, when the Cable Communications Systems Ordinance was
passed, there has been significant new Federal Statutes, Regulations and case law
concerning cable communications, and
WHEREAS, amendments are necessary in order to bring the Cable Communications
Ordinance in line with current law, and
WHEREAS, new communications technologies have developed which require
regulation by the City thus making it necessary to expand Chapter 152, and
WHEREAS, the Common Council has passed an ordinance changing the title of
Chapter 152 and delineating the communications technologies contained therein as
“Articles,” now therefore
ORDINANCE 2002- ____
BE IT ORDAINED AND ENACTED by the Common Council of the City of Ithaca, New
York, as follows:
Section 1. The City of Ithaca Municipal Code, Chapter 152 entitled “Communications
Technology” is hereby amended as follows:
A. The title of the Ordinance currently contained in this Chapter shall
be amended to a new title, “Cable Television Regulatory Ordinance” and shall be
delineated as “Article I.”
B. The text of said amendments is as follows:
Chapter 152, ARTICLE I - CABLE TELEVISION REGULATORY ORDINANCE
[HISTORY: Adopted by the Common Council of the City of Ithaca 10-5-1988 by Ord.
No. 88-8. Amendments noted where applicable.]
GENERAL REFERENCES
Cable Commission - See Ch. 17.
§ 152-1. Findings and purpose.
A. The City of Ithaca finds that the development of cable television 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 television, 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 Article 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 Article shall be
deemed to include this finding as an integral part thereof.
B. Further, it is recognized that Cable 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.
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C. For these purposes, the following goals underlie the regulations contained
herein:
(1) Cable service should be available to the maximum number of City residents.
(2) Cable Systems should be capable of accommodating both the present and
reasonably foreseeable future cable related needs of the City.
(3) Cable Systems should be improved and upgraded if necessary during their
franchise terms so that the new facilities necessary for the operation of these systems
shall be integrated to the maximum extent possible with existing facilities.
(4) Any Cable System authorized by this Article and a City franchise shall be
responsive to the cable related needs and interests of the local community and shall
provide a wide diversity of Cable Services to the public.
(5) The public, educational and governmental needs and interest for public,
educational and government access and for institutional networks should be met taking
into account the costs of meeting such needs and interests.
§ 152-2. Title.
This Article shall be known and may be cited as the “Ithaca Cable Television Regulatory
Ordinance,” and it shall become a part of the Code of the City.
§ 152-3. Definitions and word usage.
A. When not inconsistent with the context, words used in the present tense include
the future, and 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 meanings.
B. For the purpose of this Article, the following terms, phrases, words and their
derivations shall have the meanings given herein:
AREA OUTAGE - A total loss of video and audio on the cable television system in a
location affecting ten or more subscribers.
ACCESS CHANNELS - Channels set aside for non-commercial public, education or
governmental use with no charge for usage by the Franchisee to the user. “Access
channels” designed for public use shall be available on a nondiscriminatory basis.
ADDITIONAL SERVICES - Cable Programming or cable services for which an
additional charge is made beyond the charge for basic subscriber services, including
but not limited to movies, concerts, sporting events, pay-per-view programs, interactive
cable services and any other cable service.
AFFILIATE - Each person who falls into one (1) or more of the following categories:
each person having, directly or indirectly, control or a controlling interest in the
Franchisee; each person in which the Franchisee has, directly or indirectly, control or a
controlling interest; each general partner, joint venturer or joint venturee partner of the
Franchisee; and each person directly or indirectly controlling, controlled by or otherwise
related to the Franchisee by common ownership, common management or common
control; provided that “affiliate” shall in no event mean:
(1) The City.
(2) Any educational institution acting in its capacity as such for public, educational or
charitable purposes.
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(3) Any creditor of the Franchisee 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 Franchisee.
BASIC CABLE SERVICE - A separately available basic service tier to which
subscription is required for access to any other tier of service. The basic service tier
shall, at a minimum, include all signals of domestic television broadcast stations
provided to any subscriber (except a signal secondarily transmitted by satellite carrier
beyond the local service area of such station, regardless of how such signal is ultimately
received by the cable system) any public, educational, and governmental programming
required by the franchise to be carried on the basic tier, and any additional video
programming signals or service added to the basic tier by the cable operator.
CABLE PROGRAMMING SERVICE TIER - Cable programming service includes any
video programming provided over a cable system, regardless of service tier, including
installation or rental of equipment used for the receipt of such video programming, other
than:
(1) Video programming carried on the basic service tier as defined in this
section;
(2) Video programming offered on a pay-per-channel or pay-per-program
basis; or
(3) A combination of multiple channels of pay-per-channel or pay-per-program
video programming offered on a multiplexed or time-shifted basis so long as the
combined service:
(i) Consists of commonly-identified video programming; and
(ii) Is not bundled with any regulated tier of service.
CABLE SERVICE(S) - Shall mean (A) the one-way transmission to subscribers of (i)
video programming, or (ii) other programming services; and (B) subscriber interaction, if
any, which is required for the selection or use of such video programming or other
programming services or as otherwise specified in the Cable Act as it may be amended.
CABLE SYSTEM - 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 terms do not include:
(1) A Facility that serves only to retransmit the television signals of one or more
television broadcast stations;
(2) A Facility that serves subscribers without using any Public Right-of-Way;
(3) A Facility of a common carrier which is subject, in whole or in part to the
provisions of Title II of the Communications Act, except that such Facility shall be
considered a Cable System (other than for purposes of Section 621(c) of Title VI) to the
extent such Facility is used in the transmission of video programming directly to
subscribers unless the extent of such use is solely to provide interactive on-demand
services; or
(4) Any Facilities of any electric utility used solely for operating its
electric utility systems.
(5) An open video system that complies with Section 653 of the Cable Act.
CAPABILITY – The ability of the Grantee to activate a described technological or
service aspect of the cable television system.
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CAPACITY – The capability of the cable television system to carry signals. At the time
of the effective date of this Article, capacity may be described in terms of portions of the
total radio frequency bandwidth by specifying a number of MHz, but this is subject to
changes in technology.
CHANNEL - A portion of the electromagnetic frequency spectrum which is used in a
cable system and which is capable of delivering a television channel (as television
channel is defined by the Federal Communications Commission by regulation).
COMMERCIAL SUBSCRIBER - A subscriber who receives cable service in a place of
business where the cable service may be utilized in connection with the business, trade
or profession.
COMMON COUNCIL - The Mayor and Council of the City of Ithaca.
COMMUNICATIONS POLICY ACT or CABLE ACT - The Cable Communications Policy
Act of 1984, as it may be amended or succeeded, the Cable Television Consumer
Protection and Competition Act of 1992, and the Telecommunications Act of 1996 as it
may be amended or succeeded.
COMPLAINT - A subscriber or user informs the Franchisee or the City that a problem
has been brought to the attention of the Franchisee but is unresolved.
CONVERTER - 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 signals subscribed to at designated
converter dial locations at the set or by remote control.
COST – Cost shall be defined in accordance with FCC regulations.
DROP - A connection from feeder cable to the subscriber/user’s television set.
EDUCATIONAL CHANNEL or EDUCATIONAL ACCESS CHANNEL - Any channel
where educational programs are the only designated use. The “educational access
channel(s) ” shall only be used for noncommercial purposes.
EXCLUDED AREAS - The parks, greenways and natural areas in the City.
FAIR MARKET VALUE - 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.
FCC - The Federal Communications Commission and any duly established successor.
FIBER - A transmission medium of optical fiber cable capable of carrying Cable
Services by means of lightwave impulses.
FIBER NODE - The local transition point between the fiber distribution portion and the
co-axial distribution portion of the Cable Television System.
FORCE MAJEURE – means the following: acts of God; acts of war; 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 of any of their departments, agencies, political subdivisions or
officials or any civil or military authority; insurrections; riots; epidemics; landslides;
lightning; earthquakes; fires; hurricanes; volcanic activity; storms; floods; washouts;
droughts; civil disturbances; explosions or any cause or event beyond the control of the
disabled party.
FRANCHISE – means an initial authorization, or renewal thereof (including a renewal of
an authorization which has been granted subject to Section 626 of Title VI, issued by a
franchising authority, whether such authorization is designated as a franchise, permit,
license, resolution, contract, certificate, agreement, or otherwise, which authorizes the
construction or operation of a cable system.
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FRANCHISE AREA - The entire City, or portions thereof, for which a franchise is
granted. If not otherwise stated in the franchise, the Franchise Area shall be the
corporate limits of the City, including all territory thereafter annexed.
FRANCHISEE - Any Person of any kind which has been legally granted a Franchise by
the City, and the lawful successor, transferee or assignee of such Grantee.
FRANCHISE FEE - The percentage, as specified in the Franchise, of the Franchisee’s
Gross Annual Revenues payable in exchange for the rights granted pursuant to the
Cable Television Regulatory Ordinance and franchise agreement.
GOVERNMENT CHANNEL or GOVERNMENT ACCESS CHANNEL - Any channel
specifically designated or dedicated for government use. The government access
channel(s) shall only be used for noncommercial purposes.
GRANTOR - The City of Ithaca as represented by the Common Council acting within
the scope of its jurisdiction.
GROSS ANNUAL REVENUES - All revenue derived directly or indirectly by the
Franchisee for any twelve month period from the operation of the Cable System to
provide Cable Services in the City excluding bad debt, late fees, franchise pass through
monies for PEG or I-Net, sales or use taxes or any other tax or fee that Franchisee
collects on behalf of any taxing authority.
HEADEND – The Grantee’s facility for reception and dissemination of signals on the
cable television system.
INSTALLATION - The connection of the system from feeder cable to the subscribers’
terminal.
INSTITUTIONAL NETWORK – A communication network which is constructed or
operated by the Cable Operator and which is available only to Institutional Users.
INSTITUTIONAL USER – A public, educational and/or government institution receiving
or providing institutional services.
LEASED ACCESS CHANNEL or COMMERCIAL ACCESS CHANNEL – Any channel
designated or dedicated for use by persons unaffiliated with the Grantee, at rates in
accordance with the Cable Act.
LOCAL ORIGINATION – Programming produced or purchased by the Grantee (e.g.,
advertisements, news or 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.
LOCAL ORIGINATION CHANNEL – Any channel designated for local origination. This
channel may be used for commercial purposes.
NEW YORK STATE PUBLIC SERVICE COMMISSION (NYSPSC) – The State agency
regulating Cable Services, or any successor State agency with similar responsibilities.
NORMAL BUSINESS HOURS - Those hours during which most similar businesses in
the community are open to serve customers. In all cases, “normal business hours ”
must include some evening hours at least one night per week and/or some weekend
hours.
NORMAL OPERATING CONDITIONS - Those service conditions which are within the
control of the Franchisee. Those conditions which are not within the control of the
Franchisee include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather conditions. Those
conditions which are ordinarily within the control of the Franchisee include, but are not
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limited to, special promotions, pay-per-view events, rate increases, regular peak or
seasonal demand periods, and maintenance or upgrade of the cable television system.
NOTICE – Written notice addressed to the Grantee or City at each party’s respective
principal office or such other offices as the Grantee or City has designated to the other
as the address to which notice shall be transmitted to it, which notice shall be sent by
certified mail. In computing notice time, holidays recognized by the City and Saturdays
and Sundays shall be excluded.
OPEN VIDEO SYSTEM or OVS – A Facility consisting of a set of transmission paths
and associated signal generation, reception, and control equipment that is designed to
provide Cable Service, which includes video programming, which is provided to multiple
subscribers within a community, and which the Federal Communications Commission or
its successor has certified as compliant with Part 76 of the Rules of the Federal
Communications Commission, 47 C.F.R. Part 76, as amended from time to time.
PARENT CORPORATIONS – Existing or future corporations or other Persons with
greater than fifty percent (50%) ownership or having control in whatever manner
exercised over the Grantee.
PERSON - An individual, partnership, association, joint stock company, trust or
corporation or any lawful successor transferee of said individual, partnership,
association, joint stock company, trust or corporation.
PLANT MILE - A linear mile of strand-bearing cable as measured on the street of
easement from pole to pole or pedestal to pedestal.
PUBLIC ACCESS CHANNEL or COMMUNITY ACCESS CHANNEL - Any channel
designated or dedicated for use by the general public or noncommercial organizations
which is made available for use without charge to the user on a first-come-first-served,
nondiscriminatory basis. The “public access channel(s)” shall only be used only for
noncommercial purposes.
PUBLIC PROPERTY - Any real property owned by the City or any other government
entity other than the Public Rights-of-Way.
PUBLIC RIGHTS-OF-WAY - The surface, the air space in, on, under, through or above
the surface and the area in, on, under, along, through or below the surface of the
particular public streets, roads and sidewalks, located within the City. This term shall
not include any property owned by any person, corporation, public utility or agency other
than the City, except as provided by applicable law or pursuant to an agreement
between the City and any person or other entity lawfully transferring to the City the right
to authorize third parties to use such property. Notwithstanding the foregoing, this term
shall not include any excluded areas.
REASONABLE NOTICE - Written notice addressed by either party to the other party’s
principal office within the City or such other office as the Franchisee has designated to
the City as the address to which notice shall be transmitted to it, which notice shall be
sent by certified or first class mail 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.
RESIDENT – Any person residing in the City as otherwise defined by applicable law.
RESIDENTIAL SUBSCRIBER - A subscriber who receives Cable Service in an
individual dwelling unit where the Cable Service is not to be utilized in connection with a
business, trade or profession.
SALE - Includes any sale, exchange, barter or offer for sale.
SCHOOL - Any public or nonprofit state accredited primary and secondary schools,
both public and private.
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SERVICE CALL - Any work requiring the visit of a cable television representative to the
point of service or any appointment requiring the presence of the subscriber, for the
purpose of repairs.
SERVICE INTERRUPTION - The loss of picture or sound of one or more cable
channels.
SERVICE OUTAGE - A loss of picture or sound on all basic subscriber channels or on
all channels provided on any other service tier or on one or more premium channels
which is not caused by the subscriber’s television receiver or the subscriber.
SERVICE REQUEST - A request from the subscriber for a technical service, such as
installation, adjustment for poor picture quality or converter repair.
STATE - The State of New York.
SUBSCRIBER - Any person, firm, corporation or other entity who or which lawfully
elects to subscribe to, for any purpose, Cable Service provided by the Franchisee by
means of or in connection with a Cable System.
TRANSFER - The disposal by the Franchisee, directly or indirectly, by gift, assignment,
voluntary sale, merger, consolidation or otherwise, of fifty percent (50%) or more at one
(1) time of the ownership or controlling interest in the cable television system or fifty
percent (50%) cumulatively over the term of the franchise of such interest to an
unaffiliated corporation, partnership, limited partnership, trust or association or person
or group of persons acting in concert.
UPGRADE – Increase in capacity of the Cable System by 20 MHz.
USER – A Person lawfully utilizing a channel or equipment and facilities for the purpose
of producing and/or transmitting material, as contrasted with receipt thereof in a
subscriber capacity.
§ 152-4. Grant of franchise.
A. Authority to grant franchise; terms.
(1) Grant of authority. Pursuant to the authority of the Charter of the City and general
statutory rules, and subject to the terms and conditions set forth herein, the Common
Council of the City of Ithaca may grant revocable and nonexclusive franchises, acting
pursuant to Federal and State law and rules and regulation, and to the City’s applicable
Charter provisions, ordinances, rules and regulations, to construct, operate and
maintain a Cable System in the public right-of-way within the City of Ithaca for the
purpose of reception, transmission, collection, amplification, origination, distribution or
redistribution of audio, video, data or other signals and for the development of cable
services in accordance with the laws of the City of Ithaca, the State of New York and the
United States of America. In the event that the City shall grant to the Grantee a
nonexclusive, revocable franchise to construct, operate and maintain a Cable System
within the City, said franchise shall constitute both a right and an obligation to provide
Cable Services as regulated by the provisions of this Article 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 the Grantee. A franchise granted
pursuant to this Article authorizes Grantee only to construct, operate and maintain a
Cable System.
(2) Noninterference. In exercising rights pursuant hereto, the Grantee shall not
endanger or interfere with the lives of persons or interfere with any installations of the
City, any public utility serving the City or any other person permitted to use the public
right-of-way nor unnecessarily hinder or obstruct the free use of the public right-of-way.
The grant of a 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 public right-of-way. The
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Common Council of the City shall at all times control the distribution of space in the
public right-of-way occupied by the Cable System. All rights granted for the construction
and operation of the Cable System shall be subject to the continuing right of the
Common Council to require such reconstruction, relocation, change or discontinuance
of the facilities used by the Cable System in the Public Right-of-Way as shall, in the
opinion of the Common Council, be necessary in the public interest. The City’s rights
herein shall be exercised in a non-discriminatory manner as to all users of the rights-of-
way. In the event the City reimburses any user of the right-of-way for any such
reconstruction, relocation, change or discontinuance of the facilities used by the Cable
System in the Public Right-of-Way, Grantee shall be similarly reimbursed.
(3) Nonexclusivity. Any franchise is nonexclusive and, subject to the provisions of
any franchise, granted pursuant to the provisions hereof, shall not affect the right of the
Common Council to grant to any other person a grant or right to occupy or use the
public right-of-way for the construction and operation of a Cable System within the City
or the right of the City to permit the use of the public right-of-way of the City for any
purpose whatever. No privilege or power of eminent domain is bestowed on the Grantee
by the grant of a franchise.
(4) 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 generally applicable codes and ordinances of the City regarding permits, fees to
be paid or the manner of construction.
(5) Open video system (OVS). Any franchise granted for OVS shall comply with all
sections of this Article, unless precluded from compliance with specific sections by
Federal or State law, rule, or regulation.
B. Franchise required. No Cable System or provider of Cable Services shall
be allowed to occupy or use the Public Right-of-Way or be allowed to operate without a
franchise.
C. Use of Public Right-of-Way. For the purpose of operating and maintain ing a
Cable System in the City, the Grantee may erect, install, construct, repair, replace,
reconstruct and retain in the Public Right-of-Way 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 System;
provided, however, that the Grantee complies with all design, construction, safety and
performance provisions contained in this Article, the franchise and other generally
applicable local ordinances. Grantee shall contract separately with the City for use of
any excluded areas, where Grantee does not have existing facilities. Such contract
shall be non-discriminatory in its terms as to all users of such excluded areas
D. 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.
E. Term of franchise. The term of the franchise shall commence as specified in the
franchise and shall continue for the period specified in the franchise, unless sooner
terminated, as provided in the franchise.
F. Franchise renewal. Upon completion of the term of any franchise granted under
this Article, 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 and
State laws.
G. 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
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contravention of such rights, except to the extent expressly waived by the City or
expressly provided for in the franchise.
H. Time is of the essence to this Article. Whenever the Ordinance shall set forth
any time for an act to be performed by or on behalf of the Grantee, such time shall be
deemed of the essence and any failure of the Grantee to materially perform within the
time allotted shall be sufficient ground for the City to invoke an appropriate penalty
including possible revocation of the franchise, subject to notice and a time to cure.
I. Transfer of ownership or control.
(1) Transfer of franchise or Cable System. No franchise granted hereunder, nor title
to all or part of a Cable System, can be Transferred, without the prior consent of the City
as herein provided.
(2) Transfer of control. The Grantee shall promptly notify the City of any actual or
proposed change in control of the Grantee or its Parent Corporation. “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.
(3) Transfer of Ownership. The Grantee shall not Transfer an ownership interest in
the Grantee as specified herein without the consent of the City. Failure to obtain
consent as specified herein, shall make the franchise subject to cancellation unless the
City shall have consented thereto.
(4) City authorization. Prior City authorization is required for a Transfer of the
Grantee as herein provided. City consent will not be unreasonably withheld. For the
purpose of determining whether it shall consent to such Transfer, the City may inquire
into the legal, financial, and technical qualifications of the prospective controlling party,
and the Grantee shall assist the City in any such inquiry. No Transfer for which the
City’s consent is required may occur until the successor, assignee or lessee has
complied or agreed to comply with all of the requirements of this Article, including, but
not limited to, providing certificates of insurance, unless the Common Council waives
such compliance.
(5) Requests for consent/procedure/restrictions. If the Grantee seeks to obtain the
consent of the City to any transactions or matters described here, the Grantee shall
submit a request for such consent and a copy of the FCC Form 394 and applicable
exhibits to the City in a timely manner. The Grantee shall provide information on the
transfer, transferee, and current operations, as required by FCC Form 394.
(6) 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 System.
Further, said financial institution shall also submit a plan for such operation that will
ensure continued service and compliance with all franchise obligations during the term
the financial institution exercises control over the system. The financial institution shall
not exercise control over the system for a period exceeding one year, unless extended
by the City at its discretion; and during said period of time, it shall have the right to
petition for transfer of the franchise to another Grantee. If the City finds that such
transfer, after considering the legal, financial and technical qualifications of the
applicant, is satisfactory, the City will transfer and assign the rights and obligations of
such franchise as in the public interest. The consent of the City to such transfer shall not
be unreasonably withheld.
(7) City approval of leases. The Grantee shall not lease or sublease its franchise or
any of the rights or privileges granted or authorized by this Article or the franchise so as
to result in a Transfer without the City’s consent. However, the Grantee may enter into
leases or subleases not affecting this Article, or rights and privileges thereunder, in the
ordinary conduct of its business, and may enter such leases or subleases with other
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City grantees without City consent, so long as the Grantee remains solely responsible
for locating, servicing, repairing, relocating or removing its Cable System.
(8) 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 to the public
right-of-way, and any Transfer shall, by its terms, be expressly subordinate to the terms
and conditions of the franchise.
(9) No Transfer prior to completion of initial construction of Cable System. In the
absence of extraordinary circumstances, the City will not approve any Transfer or
assignment of the franchise prior to completion of initial construction of the proposed
cable system.
(10) Franchise signatory. Any approval by the City to Transfer shall be contingent
upon the prospective controlling party becoming a signatory to the franchise.
(11) Time frame. As required by Federal law, the City shall act on a request to
transfer the franchise within one hundred twenty (120) days of the Grantee’s
presentation to the Common Council requesting a Transfer. The City’s approval of any
Transfer shall not be deemed an approval of the purchase price.
(12) Notwithstanding the foregoing, no consent shall be required for any five transfers
during the term of a franchise to an entity controlling, controlled by or under the same
common control as a Grantee.
§ 152-5. Regulation of franchise.
A. General. The City shall exercise appropriate regulatory authority under the
provisions of this Article and applicable federal and state law. This authority shall be
vested in the Mayor and/or Common Council or their designee to provide day-to-day
administration and enforcement of the provisions of this Article and any franchise
granted hereunder and to carry out the City’s responsibility with regard to cable service.
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, provided, however, that the
same do not alter the terms and conditions of Grantee’s rights and obligations under
this Article or its franchise.
B. Reservation of Rights for Regulation. The City and Grantee reserve all rights
under applicable Federal and state law, as the same may be amended from time to
time.
C. Regulatory authority. The City shall have the responsibility for the administration
and enforcement of this Article 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 this Article and any franchise
granted hereunder.
(2) To receive and investigate complaints regarding substandard service and to
initiate any action necessary pursuant to this Article 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 service matters.
(4) To receive, evaluate and file all data and reports required by this Article and to
rule on such matters as appropriate under this Article and state and federal law or
regulation.
(5) To inspect at any time all construction, installation and ongoing operation of the
Cable System and to make such tests as it reasonably deems necessary to ensure
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compliance with the terms of this Article and the franchise and other applicable laws
and regulations.
(6) To conduct public hearings and evaluation sessions as required under this Article
or as otherwise necessary for the proper effective administration of this Article.
(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 Article and the franchise.
(8) To receive applications for rate increases, if the City has the authority to regulate
rates, and to provide staff assistance in the analysis and recommendations thereto.
(9) To monitor the Grantee’s adherence to operational standards and service
requirements.
D. Rights reserved to the grantor.
(1) Purchase upon termination or non-renewal. The price to be paid to the Grantee,
upon an acquisition by the City or if the City effects a transfer of ownership of the
system to another person, shall depend upon the nature of the termination. If the
renewal of the franchise is denied in accordance with the provisions of Federal and
state law, then the price shall be fair market value, determined on the basis of the
system valued as a going concern but with no value allocated to the franchise itself. If
the termination is due to the revocation of the franchise for cause, then the price shall
be an equitable price.
(2) Purchaser rights. Upon payment of the purchase price, the Grantee shall
immediately transfer to the City or transferee all contracts, leases, licenses, permits and
any other assignable rights necessary to maintain continuity of service to the public.
(3) Right of intervention. The City shall have the right of intervention in any suit or
proceeding to which the Grantee is party and in which the City shall have a material
interest.
E. Police powers.
(1) Police powers. The Grantee’s rights are subject to the police power of the City to
adopt and enforce general ordinances necessary to the safety and welfare of the public;
and Grantee shall comply with all applicable general laws and ordinances enacted by
the City pursuant to such power.
(2) Conflicts. Any conflict between the provisions of this Article or the Franchise and
any other present or future lawful exercise of the City’s police powers shall be resolved
in favor of the latter.
F. Performance evaluation.
(1) The City and the Grantee shall, at the discretion of the City, hold annual
performance evaluation sessions. All such evaluation sessions shall be open to the
public.
(2) 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
Article 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.
(3) Grantee shall notify its subscribers of all evaluation sessions by announcement
on at least one channel of its Cable System between the hours of 7:00 p.m. and 9:00
p.m. for fifty consecutive days preceding each session.
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(4) During review and evaluation, the Grantee and the City shall fully cooperate with
each other and shall provide such information and documents as are prepared in the
ordinary course of business as each may reasonably need to perform its review.
G. Response to City inquiries. In accordance with the terms of this Article and the
franchise, the City may, at any time upon reasonable notice, make reasonable inquiries
concerned with Grantee’s compliance with the material terms and conditions of the
franchise. The Grantee shall respond to such inquiries in a timely fashion.
H. Civil Penalties. If the Grantee violates any provision of this Article or the
Franchise and fails to come into compliance after notice from the City as specified
below, the Grantee shall be liable for civil penalties as specified in the schedule of
penalties set forth in this Article.
I. Liquidated Damages. Grantee shall pay to the City the full amount of such
liquidated damages as herein provided if it fails to come into compliance after notice
from the City as specified below.
J. Notice and City Remedies. Before seeking collection of civil penalties, liquidated
damages, other damages, or revocation of the Franchise, the City shall provide the
Grantee with a detailed written notice of the violation. Grantee shall have thirty (30)
days from receipt of the notice to show to the City’s reasonable satisfaction in its
judgment reasonably exercised that it is not in violation or has come into compliance, or,
if the violation is not capable of being cured within thirty (30) days, to submit a plan and
schedule satisfactory to the City in its judgment reasonably exercised to promptly cure
the violation and thereafter comply with the plan and schedule until Grantee is in
compliance. If the Grantee fails to come into compliance as described in this
paragraph, then the City may commence an action or special proceeding against the
Grantee in a court of competent jurisdiction to collect civil penalties and/or damages,
together with costs, disbursements and recoverable attorneys’ fees, and/or compel
compliance with or restrain by injunction any violation. Prior to an action to collect civil
penalties and/or damages, the City may make a demand for the payment of liquidated
damages or other damages as specified in the Franchise, thereafter the Grantee shall
be afforded the opportunity to appear before the full Common Council as a regular
agenda item to presents its position. If Council upholds the demand, the Grantee shall
pay or permit to be paid from the performance or construction bonds, as applicable, the
full amount demanded within ten (10) days of receipt of the demand. The City may in
addition or in the alternative to other remedies seek to revoke the Grantee’s Franchise
as described below if the violation is one specified in subsection O below. The
imposition of civil penalties or liquidated or other damages shall not preclude the City
from exercising the other enforcement provisions of this Article. Violations shall be
excused if caused solely by a Force Majeure event. Grantee shall have the right to
appeal any action under this provision to a court of competent jurisdiction.
K. Amounts received by the City. Amounts received by the City as civil penalties or
damages assessed against the Grantee, whether directly paid by the Grantee to the
City or withdrawn from the performance bond or construction bond by the City, shall be
placed in the general fund of the City.
L. Accrual of Penalties and Damages. Any civil penalties, liquidated damages,
other damages or claims arising out of any actual breach of this Article or the Franchise
shall accrue from the date the City or court, as applicable, finds such breach
commenced. The Grantee’s responsibility to cure any such breach or remit any such
civil penalties or damages shall not be diminished by the failure of the City to enforce
any provision of this Article or the Franchise.
M. Schedule of Civil Penalties. The following civil penalties shall apply to violations
of this Article or the Franchise:
1. Failure to file requests for operating authorizations with the NYSPSC
within the specified thirty (30) days - $100.00 per day until filed.
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2. Failure to deliver evidence of Franchisee insurance within the specified
sixty (60) days - $100.00 per day until delivered.
3. Failure to restore an amount withdrawn from the performance bond,
construction bond, or letter of credit within the specified thirty (30) days - $100.00 per
day until restored.
4. Upon revocation of the Franchise Agreement with reference to the
balance remaining in the performance bond, construction bond, or letter of credit - full
forfeiture.
5. Failure of the Franchisee to maintain proper operational function of the
emergency alert system as provided for in this agreement - $100.00 per occurrence.
6. Failure to maintain picture or audio quality in accordance with FCC and
NYSPSC technical specifications - $100.00 per day.
7. Failure to restore damaged property as required in this agreement -
$100.00 per day.
8. Failure to cure on request of the City any general lapse in compliance with
applicable customer service standards - $100.00 per day.
9. Failure to maintain proper material logs, records, and files as required in
this agreement - $100.00 per day.
10. Failure to disclose pertinent books and records as required in this
agreement - $100.00 per day.
11. Failure to comply with any proper and applicable prohibitions against
discriminatory employment and service practices - $100.00 per day.
12. Failure to meet with the governing body of the City, upon the latter’s
written request as required in this agreement or to cooperate with performance
evaluations as required in this agreement - $100.00 per day.
13. Failure to provide a required material report within the time specified in
this agreement; or failure to comply with a specific order of the City that was
appropriately issued under terms of this agreement or pursuant to the City’s police
power - $100 per day whichever is greater.
14. Failure to cure a lapse of maintenance or operation of the cable television
system affecting service within the City in a manner consistent with applicable
standards as defined in this agreement which causes actual disruption to the
transmission of cable signals or creates an unsafe condition - $100 per day.
15. Failure to provide or maintain public goods such as the Institutional
Network as specified in this agreement - $100 per day.
16. Failure to comply with material provisions of this agreement - $100 per
day.
N. Grounds for revocation. The City may revoke any Franchise granted hereunder
and rescind all rights and privileges associated with the franchise in the following
circumstances, each of which shall represent a default and breach under this Article and
the Franchise grant.
(1) The franchise was fraudulently obtained.
(2) The Grantee should default in the performance of any of its material obligations
under this Article or the Franchise granted hereunder.
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(3) The Grantee should fail to provide or maintain in full force and effect the
insurance or construction or performance bonds or equivalent as required herein, or
meet its obligations regarding liability and indemnification as provided in this Article and
the Franchise.
(4) The Grantee attempts to dispose of any of the Cable System to prevent the City
from recovering any payments due or any losses or damages arising out of the
franchise.
(5) The Grantee has transferred ownership or control of the Franchise without prior
approval of the City.
(6) The Grantee evades any material provision of this Article or Franchise by a
pattern of fraud or deceit.
(7) Material misrepresentation of fact in the application for or negotiation of the
Franchise or any extension, renewal, or modification thereof.
(8) The Grantee’s construction schedule is delayed later than the schedule
contained in the Franchise or beyond any extended date set by the City.
(9) The occurrence of any event which may reasonably lead to the foreclosure or
other similar judicial or nonjudicial sale of all or any material part of the Cable System.
(10) In the event that the Grantee shall suspend or discontinue its business for
causes other than force majeure.
(11) A persistent failure by the Grantee to comply with any of the material provisions,
terms or conditions of this Article or the Franchise.
(12) Grantee violates any material orders or rulings of any Federal or state regulatory
body having jurisdiction over the Grantee which is related to Grantee’s performance
under this Article or the Franchise.
(13) Grantee fails to comply with any Federal or State judgment arising directly from
the Grantee’s actions related to its Cable System or Cable Services.
(14) Grantee fails to properly remit Franchise Fees to the City as required by this
Article or the Franchise.
(15) Grantee is adjudicated a bankrupt, has filed a voluntary petition for bankruptcy or
reorganization or for an order protecting its assets from the claims of creditors, makes a
general assignment for the benefit of creditors, or takes the benefit of any insolvency
act, or a temporary receiver or trustee is appointed for the Grantee’s property and such
appointment is not vacated and set aside within ninety (90) days from the date of such
appointment.
O. Effect of pending litigation or appeal. Pending litigation or any appeal to any
regulatory body or court having jurisdiction over the Grantee shall not excuse the
Grantee from the performance of its obligations under this Article or the franchise,
except as may be otherwise provided by court order, stay, applicable law or regulation.
Failure of the Grantee to perform such obligations because of pending litigation or
petition may result in forfeiture or revocation pursuant to the provisions of this section.
P. Revocation Procedure.
(1) If after receipt of Notice from the City, the Grantee fails to cure a violation
of this Article or the Franchise within the stated period as specified in subsection J
above, and the violation is one specified in subsection M above, the City may place its
consideration of whether to revoke the Franchise upon a regular or special Common
Council meeting agenda. At least fourteen (14) days prior to the date of such Common
Council meeting, the City shall cause written notice to be served upon such Grantee
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specifying the purpose, time and place of the meeting at which Grantee shall be
afforded a full and fair opportunity to be heard and present evidence.
(2) The Common Council shall receive public comment from any Persons
(including the Grantee) and shall determine whether or not Grantee is in default based
upon Common Council’s review of the public comment, materials, available information
and staff recommendations.
(3) If Common Council determines Grantee is in default, then Common
Council may by resolution declare that the Franchise of the Grantee shall be terminated
and order the Grantee to commence the removal of the Cable System or to stop the
delivery of Cable Services or to cooperate with the City, or any such Person authorized
or directed by the City, to operate the Cable System for a period of time specified by
Common Council in order to maintain continuity of service. Common Council may in
addition or in the alternative pursue other remedies provided by this Article, the
Franchise, or applicable law, including foreclosing on all or any part of the security
provided pursuant to this Article, including, without limitation, the performance bond or
the construction bond; provided, however, that the foreclosure shall be in such amount
as the City reasonably determines is necessary to remedy the default and shall include
payment of all City expenses incurred in connection with any determination of default.
Q. Nonexclusivity of remedy. No decision by the City to invoke any remedy under
this Article or under any statute, law or ordinance shall preclude the availability of any
other remedy. In no event shall the foregoing result in a double recovery of damages.
R. 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 Tompkins County in the State of New York or in the federal district court for the
Northern District of New York.
S. Free connections. The Grantee may, in its Franchise, agree to provide free drops
to specific institutions and locations.
T. Rate regulation.
(1) Except as otherwise provided by applicable law, the Grantee shall establish rates
that are nondiscriminatory within the same general class of subscribers which must be
applied fairly and uniformly to all subscribers in the franchise area for all services.
Nothing contained herein shall prohibit the Grantee from offering (i) discounts to
commercial and multiple family dwelling subscribers billed on a bulk basis; (ii)
promotional discounts; (iii) reduced rates for subscribers who have multiple services; or
(iv) discount for senior citizens and/or low income residents. The Grantee’s charges
and rates for all services shall be itemized on subscriber’s monthly bills.
(2) 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, or to refrain from exercising such regulation for any period of time, at
the sole discretion of the City.
(3) If applicable, the City shall have the right to petition the Federal Communications
Commission, NYSPSC, or other appropriate agency or organization to obtain rate
regulation authority or to petition the Federal or State body to review or regulate rates in
the City.
U. Franchise fee entitlement. The City shall be entitled to receive from the Grantee
a franchise fee as specified in the franchise.
V. Payment. The franchise fee established in Subsection V above shall be tendered
as follows: The agreed upon amount for successive three-month periods shall be
tendered within sixty (60) days after each such period. Said periods shall commence
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upon the execution of a franchise granted pursuant to this Article. Each payment shall
be accompanied by a brief report showing the basis for the computation and such report
shall be certified as true by a financial officer of the Grantee.
W. Initial Franchise expense reimbursement. The Grantee is required to reimburse
the City for the expenses of the initial franchising process, such as consultant’s fees.
X. Affiliates’ use of system. To the extent necessary to prevent the Grantee from
diverting revenues from the operation of the Cable System to provide Cable Services
from the Grantee to the 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 System to provide Cable Service only if a five percent (5%) franchise
fee on gross City revenues derived therefrom is paid.
Y. Late payment. In the event that the fees herein required are not tendered on or
before the dates fixed in this Article, interest due on such fees shall accrue from the
date due at an annual rate of two percent (2%) above the prime rate in effect as of the
due date.
Z. Recomputation. For a period not to exceed three (3) years from the date of
remission of any payment, all amounts paid by Grantee to the City shall be subject to
audit and recomputation by an independent auditor chosen by the City. Upon
reasonable advance written notice by a duly authorized official of the City to the
Grantee, the City or its representatives shall have the right annually to examine and
inspect documents of the Grantee, in the presence of a representative of the Grantee,
relating to the calculation of the franchise fees to verify the accuracy of the payment of
franchise fees to the City. Such examination and inspection shall take place during
normal working hours at an office of the Grantee where it regularly maintains its books
and records. Such office shall be within the State of New York. Any audit shall be at
the expense of the Grantee if such audit finds that Grantee has underpaid the franchise
fee by five percent (5%) or more, in which event the Grantee shall reimburse the City for
the reasonable expense of such audit. Any additional undisputed amount due to the
City as a result of the audit shall be paid within thirty (30) days following written notice to
the Grantee by the City, which notice shall include a copy of the audit report.
AA. Franchise fee in addition to other tax or payments. Franchise fees do not
include any tax, fee or assessment of general applicability (including any such tax, fee
or assessment imposed on both utilities and cable operators or their services but not
including a tax fee or assessment which is including discriminatory against cable
operators or cable subscribers.
BB. Acceptance by the City. Subject to the audit provisions under (Z) above, no
acceptance of any payment by the City shall 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 may have for further or additional sums payable under this Article or the
Franchise or for the performance of any other obligation of the Grantee.
§ 152-6. Performance bond and construction bond.
A. Performance bond. Within twenty (20) 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 performance bond, in amounts specified in the franchise, to guarantee the faithful
performance of the Grantee of all of its obligations provided under this Article and the
franchise, and to pay any claims, liens or taxes due the City which arise by reason of
the construction, operation, maintenance or repair of the Cable System. Failure to timely
obtain, file and maintain said bond shall constitute a material violation of this Article.
Such bond must be issued by a surety and be in a form acceptable to the City.
B. Construction bond. Prior to construction, upgrade or rebuild of the Cable System,
the Grantee shall obtain and maintain during the construction, upgrade or rebuild, at its
cost and expense, and file with the City, a construction bond in amounts specified in the
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franchise to guarantee the faithful performance of the Grantee of its obligations in this
Article or the franchise related to construction. The bond shall be maintained
throughout the period that the Grantee performs the construction, upgrade or rebuild,
and for such longer period as necessarily required for the Grantee to correct any
deficiencies, which deficiencies shall be identified to the Grantee by the City within
ninety (90) days following the Grantee’s written notice of completion to the City. Failure
to timely obtain, file, and maintain said bond shall constitute a material violation within
the meaning of this Article. Such bond must be issued by a surety and be in a form
acceptable to the City.
C. Conditions. The performance and construction bond shall be issued by a surety
licensed to do business in the State and shall provide the following conditions:
There shall be recoverable by the City from the principal and surety, jointly and
severally, 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 Article and the franchise.
D. Reduction and consolidation of bonds. Upon written application by the Grantee or
as otherwise specified in the franchise, the City may, at its sole option, permit the
amount of the bonds to be reduced or waive the requirements for a performance or
construction bond. 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, at its
sole discretion, to require restoration of the full bond at any time thereafter. However, no
application shall be made by the Grantee within one year of any prior application. The
City, at its sole option, may permit consolidation of the construction bond with the
performance bond.
E. Use of performance and construction bonds. Prior to drawing upon the
performance bond or the construction bond for the purposes described in this Article,
the City shall notify the Grantee, in writing outlining the reasons why payment is due.
Grantee shall thereafter have a full and fair opportunity to be heard before Council to
contest the same or to cure. If following an opportunity to cure, Franchisee fails to cure,
Grantee shall have ten (10) days from the receipt of written notice to make a full and
complete payment. If the Grantee does not make the payment within ten (10) days, the
City may withdraw the amount thereof, with interest and penalties, from and the
performance and/or construction bond. Grantee shall have the right to appeal and
decision by Council to a court of competent jurisdiction.
F. Notification. Within three (3) days of a withdrawal from or performance bond or
construction 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.
G. Replenishment performance and construction bonds. No later than thirty (30)
days after mailing to the Grantee, by certified mail, notification of a withdrawal pursuant
to Subsection E above, the Grantee shall replenish the performance bond and/or
construction bond in an amount equal to the amount so withdrawn. Failure to make
timely replenishment of such amount to the performance bond and/or construction bond
shall constitute a material violation of this Article.
H. Nonrenewal, alteration or cancellation of performance bond or construction bond.
The performance bond and construction bond required herein shall be in a form
satisfactory to the City and shall require thirty (30) days’ written notice to the City of any
nonrenewal, alteration or cancellation. The Grantee shall, in the event of any such
nonrenewal, alteration or cancellation notice, obtain, pay all premiums for, and file with
the City written evidence of the issuance of a replacement bond(s) within thirty (30)
days following receipt by the City or the Grantee of any notice of cancellation.
I. Inflation compensation. To offset the effects of inflation, the amounts of the
bonds provided for herein are subject to reasonable increases at the end of every three-
year period of the franchise, applicable to the next three-year period, at the sole
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discretion of the City. Inflation compensation shall be computed by the City in
accordance with the regional consumer price index.
J. City Rights. The rights reserved to the City with respect to the performance
bond and construction bond are in addition to all other rights of the City, whether
reserved by this Article, the Franchise or authorized by law, and no action, proceeding
or exercise of a right with respect to such a bond or letter of credit shall affect any other
right the City may have.
K. Right to Require Replacement of Bonds and Insurance. If the City becomes
aware that the financial condition of any bonding or insurance company issuing a
performance bond or insurance policy to the Grantee as required herein was poor or
unstable at the time of issuance, and the City would not have approved the surety of the
bond or the City would not have found the form of the bond or the insurance policies
satisfactory if such conditions had been known by the City at the time, or if the financial
condition of such bonding or insurance company materially changes to the extent that
such approvals would not have been made had such conditions existed at the time of
issuance, the City may, at any time, require that any such bond or insurance policy be
replaced with such other bond or insurance policy consistent with the requirements set
forth in this Article.
§ 152-7. Liability, insurance and indemnification.
A. Terms of liability and insurance.
(1) 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 or industry accepted ACCORD Form for all
the types of insurance required under this section. Any deductibles or self-insured
retention must be disclosed on the Certificates of Insurance. Failure to furnish said
certificates of insurance in a timely manner shall constitute a material violation of this
Article.
(2) Any certificate of insurance obtained by the Grantee in compliance with this
Article shall be filed and maintained with the City Clerk during the term of the franchise.
(3) None of the provisions of this Article or any insurance policy limits required
herein, nor any damages recovered by the City hereunder shall be construed to limit or
shall limit the liability of the Grantee under any franchise issued hereunder for damages.
(4) 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 Article or the
franchise and Grantee’s insurance policy shall require that the City be provided with
thirty (30) days written notice of reduction in coverage, cancellation or non-renewal.
(5) All insurance policies provided under the provisions of this Article or the franchise
shall be written by companies authorized to do business in the state and approved by
the State and rated at least B+: IX in the current Best’s Insurance Guide.
(6) The Grantee shall name the City as an additional named insured for liability
insurance policies written under the provisions of this Article or the franchise.
(7) 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-year period of the franchise, applicable
to the next three-year period, upon the determination of the City. Inflation compensation
shall be computed by the City in accordance with the regional consumer price index.
(8) All deductibles shall be deductibles that are standard to the Grantee and shall in
accordance with Article 152-7(A)(1).
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(9) When umbrella or excess coverage is in effect, it must follow the form of the
underlying coverage.
(10) The Grantee may self-insure only upon written notification to the City and
conditions consistent with this Article that are acceptable to the City.
(11) Claims-made policies are not acceptable for any insurance policy provided under
the provisions of this Article or a franchise.
B. General liability insurance.
(1) The Grantee shall obtain, and maintain at all times during the term of the
Franchise, comprehensive general, and owners and contractors liability insurance
protecting the Grantee in an amount of not less than Five Million ($5,000,000) Dollars
per occurrence, including bodily injury, death, and property damage, as a combined
single limit or equivalent.
(2) 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.
C. Automobile Liability Insurance
(1) The Grantee shall obtain and maintain at all times during the term of the
Franchise, an Automobile Liability policy of insurance protecting the Grantee in an
amount not less than One Million ($1,000,000) Dollars per occurrence combined single
limit for bodily injury and consequent death and property damage.
Automobile liability shall cover owned, non-owned and rented vehicles.
D. Worker’s compensation and employer’s liability insurance. The Grantee shall
obtain and, by its acceptance of any Franchise granted hereunder, specifically agrees
that it will maintain throughout the term of the Franchise, workers’ compensation and
employer’s liability insurance, valid in the State, in the minimum amount of the statutory
limit for workers’ compensation (1) One hundred thousand dollars for employer’s
liability. The Grantee must provide the City written proof before beginning construction
of its Cable System, and in any event within sixty (60) days of the effective date of any
Franchise, that the Grantee provides the levels of workers’ compensation and disability
coverage required by the State of New York or that it is not required to provide such
coverage.
E. Insurance for contractor and subcontractors. The Grantee shall require such
contractor or subcontractor to obtain appropriate insurance coverage consistent with
and complying with all requirements of this Article and appropriate to the extent of its
involvement in the construction, installation, maintenance or operation of the Grantee’s
Cable System.
F. Payment. The Grantee shall be solely responsible for payment of all premiums
for insurance required by the franchise or this Article and shall be solely responsible for
the payment of any deductible and/or retention to which such policies are subject,
whether or not City is an insured under the policy.
G. Indemnification.
(1) The franchise shall include the following hold-harmless clause: The Grantee shall
indemnify the municipality for, and hold it harmless from, all liability, damage, cost or
expense arising from claims of injury to persons or damage to property occasioned by
reason of an conduct undertaken pursuant to the franchise.
(2) As provided in (1) above, damages and penalties shall include but not be limited
to damages arising out of copyright infringement and all other damages arising out of
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the construction, installation, operation or maintenance of Grantee’s Cable System, and
Grantee’s provision of Cable Services, whether or not any such act or omission is
authorized, allowed or prohibited by this Article or the franchise granted hereunder.
(3) The foregoing indemnity is conditioned upon the following: The City shall give the
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 Article. Nothing herein shall be
deemed to prevent the City from cooperating with the Grantee and participating in the
defense of any litigation by its own counsel at its own cost and expense.
H. City limitation of liability. In any court proceeding involving any claim against the
City or any official, Council or committee member, employee, or agent of the City, that
arises from the regulation of Cable Services or from a decision of approval or
disapproval with respect to a grant, renewal, transfer, or amendment of a franchise, any
relief awarded against the City, to the extent such relief is required by Federal, State or
local law, shall be limited to injunctive relief and declaratory relief.
§ 152-8. Consumer protection standards.
A. Compliance with law and regulation. The Grantee shall comply with all Federal
and State of New York laws, NYSPSC rules and regulations Pertaining to customer
service standards, as the same may be amended from time to time current standards
are outlined herein and the same shall be amended to accord with Federal and state
law.
B. Identification. Each representative or employee of the Grantee entering upon
private property shall be required to carry an employee identification card issued by the
Grantee and bearing a picture of said representative.
C. Sales information. The Grantee shall provide complete written information
concerning all services, products, and rates available and the channel positions of
programming carried on the Cable System to all subscribers semi-annually, to
subscribers and other persons at any time upon request, and to all prospective
subscribers upon solicitation of service and prior to the consummation of any agreement
for installation of service. Such sales material shall clearly and conspicuously disclose
the price and other information concerning the Grantee’s least costly service. Such
information shall be written in plain English and shall include but shall not be limited to
the following:
(1) All services, products, tiers and networks provided thereon, and rates.
(2) Service upgrade or downgrade charges.
(3) Parental control devices.
(4) The local numbers for the Grantee’s subscriber service telephone system.
(5) A complete statement of the subscriber’s right to privacy in conformance with 47
U.S.C. Section 631.
(6) Other information required by the New York State Department of Public Service
and/or the New York State Commission on Cable Television.
D. City and subscriber notification.
(1) The Grantee shall file with the City schedules which shall describe all services
offered by the Grantee, all rates and charges of any kind and all terms or conditions
relating thereto. Thereafter, the Grantee shall file with the City and notify subscribers of
all changes in services, rates or charges of any kind and all terms and conditions
relating thereto at least thirty (30) days prior to all such changes unless the NYSPSC or
federal or State law or regulation specifically allows such change without advance
notice, and shall comply with all Federal and State requirements for notification.
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(2) The Grantee shall provide notice, in writing, to the City and all subscribers of any
change in any channel assignment or in any service provided over any such channel,
which notice shall be provided no later than thirty (30) days prior to the effective date of
any such change and in the manner required by Federal and State law.
E. Deposits. Any deposit required by the Grantee shall bear interest at a rate of not
less than the then-prevailing commercial rate of interest.
F. Twenty-four hour operation. The system shall be designed for reliable operation
twenty-four (24) hours per day and shall ensure that Cable Service impairment due to
interruption is only for good cause.
G. Business office. The 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 and billing and
collection disputes. The business office shall be open at least forty-five (45) hours per
week, including some weekend and evening hours, and have a publicly listed local
telephone number and shall be open for both telephone and walk-in business. The
Grantee shall provide all subscribers or users with at least thirty (30) days’ prior written
notice of a change in business office hours.
H. Resolution of complaints to City. Complaints received by the City from
subscribers shall be resolved in accordance with NYSPSC rules.
I. Notice of public meeting. Whenever notice of any public meeting relating to the
Cable System is required by law or regulation, the City shall publish or cause to be
published a notice of the 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
meeting. Provided Grantee receives timely notice from the City, the Grantee shall
provide notice of such public meeting by periodic announcement on the PEG channel
and on at least one (1) channel of the Cable System between the hours of 7:00 p.m.
and 9:00 p.m. for four (4) consecutive days during the two (2) successive weeks prior to
the meeting.
J. Subscriber privacy information. The Grantee shall at all times protect the privacy
of subscribers, as provided in this Article and other applicable federal, state and local
laws.
K. Converters.
The Grantee shall make converters available to subscribers in accordance with Federal
and state law.
L. Internal wiring. The Grantee shall install and/or maintain internal wiring for
subscribers in accordance with FCC rules and regulations. However, Grantee shall
permit subscribers to install their own wiring, in such event Grantee shall have no
obligation to maintain or replace the same.
M. Remote controls. The Grantee shall make remote control units available to
subscribers in accordance with Federal and state law.
N. Parental control devices. The Grantee shall provide to the potential subscriber,
information concerning the availability of a lockout device for use by a subscriber in
accordance with Federal or state law. The Grantee shall provide to subscribers, upon
request, parental control devices that allow any channel or channels to be locked out.
The cost to subscribers for parental control devices is subject to FCC regulation.
O. Subscriber policies. The Grantee shall comply with all subscriber policies in this
Ordinance and the franchise.
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P. Channel Line up. The Grantee will provide subscribers with a channel line up
card for all Cable Services when channel line-up changes, at the time of installation and
upon request thereafter.
Q. Installation and Repair. The Grantee, under normal operating conditions, shall
meet no less than ninety-five percent (95%) of the time, measured on a quarterly basis,
the following service standards:
(1) Standard installations of up to one-hundred fifty (150) feet from existing aerial
distribution plant shall be performed within seven (7) business days after an order is
placed unless a subscriber requests a particular date beyond seven (7) business days;
(2) Excluding conditions beyond control of the Grantee, the Grantee will (i) begin
working on service interruptions promptly and in no event later than twenty-four (24)
hours after the interruption becomes known and (ii) begin actions to correct other
service problems no later than the next business day after notification of the service
problem or trouble call;
(3) The “appointment window” alternatives for installations, service calls, and other
installation activities will be either (i) a specific time, (ii) morning or afternoon hours, (iii)
a four hour time block of time during normal business hours, (iv) evenings or Saturdays
during normal business hours.
(4) If the Grantee’s representative is running late for an appointment with a customer
and will not be able to keep the appointment as scheduled, the customer will be
contacted. The appointment will be rescheduled, as soon as possible, at a time which
is convenient for the customer consistent with paragraphs (1) and (2) of this subdivision.
Except as set forth in the first sentence of this paragraph, in no event shall the Grantee
cancel any necessary scheduled service call after the close of business on the business
day prior to the scheduled appointment.
R. Credit for service outage.
(1) Upon customers request, the Grantee shall provide credit to subscribers affected
by any service outage in excess of four (4) continuous hours in accordance with
subdivisions (2) and (3) of this section. The four (4) hour period shall commence at the
time the Grantee first becomes aware of the outage.
(2) Whenever the Grantee may reasonably determine the existence and scope of a
service outage as, for example, a service outage caused by a major failure in the
system’s headend or distribution electronic equipment, which service outage exceeds
four (4) continuous hours and some part of which occurs during the hours 6:00 p.m. to
12:00 a.m., the Grantee shall issue a credit to each affected subscriber upon request.
(3) In the event the Grantee cannot determine which subscribers were affected by a
service outage in excess of four (4) continuous hours or no part of such outage occurs
during the hours 6:00 p.m. to 12:00 a.m., credit shall be given to any eligible subscriber
who makes application therefore by either written or oral notice within 90 days of such
service outage, and credit shall be given to any subscriber the Grantee may reasonably
determine was affected by the outage.
(4) The minimum credit shall be equal to one-thirtieth times the applicable monthly
charge for each twenty-four hour period during which a service outage continues for at
least four hours.
S. Service outage requirements. Prior written notice of a scheduled service
outage shall be filed with the Cit y. The Grantee shall make a reasonable effort to
inform affected subscribers in advance of any scheduled service outages, and they shall
occur only for good cause, for the shortest time possible, and during periods of
minimum use of the system where possible.
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T. Failure to meet time periods may be excused. The Grantee’s failure to begin
correcting outages or making repairs within the stated time periods shall be excused in
the following circumstances:
(1) If the Grantee could not obtain access to the subscriber’s premises.
(2) Correcting such outages or making such repairs was not reasonably possible
within the allotted time period.
U. No charge for repair service. The Grantee shall not impose any fee or charge
any subscriber for any service call to his or her premises to perform any repair or
maintenance work on the Grantee’s equipment, unless due to subscriber negligence or
fault.
V. Reporting. Information to demonstrate compliance regarding the service
standards for installations and repairs contained in this section shall be maintained for a
period of two (2) years and shall reported to the NYSPSC and shall be made available
to the City upon request, and shall at a minimum include: (i) number of requests for
standard installations and number performed within seven (7) business days, (ii)
number of service interruptions, and number of service interruptions responded to within
and after twenty-four (24) hours after notification, (iii) number of service calls to
subscriber’s residence for installations and repairs, and number performed as per
subscriber requested time period, (iv) number of installations or service calls
rescheduled, and (v) number of credits issued for missed installation or service calls to
subscriber’s premises, or such other information that will document compliance with
such standards.
W. Reports due. The quarterly service reports shall be filed with the NYSPSC and
the City upon request on April 15, July 15, October 15 and January 15 of each year and
shall contain all information required by this Article.
X. Standard of service for telephone response system.
(1) The Grantee shall maintain a local toll-free telephone access line which will be
available to its subscribers twenty-four (24) hours a day, seven days a week and trained
company representatives must be available to respond to all callers twenty-four (24)
hours a day.
(2) Under normal operating conditions, the Grantee shall meet the following
telephone answer standards:
(a) telephone answer time by trained company representatives, including wait-time,
shall not exceed thirty (30) seconds from when the connection is made;
(b) if a call needs to be transferred, transfer time shall not exceed thirty (30)
seconds;
(c) callers will receive a busy signal less than three (3) percent of the time; and
(d) the requirements of this Section shall be met no less than ninety (90) percent of
the time, measured on a quarterly basis.
(3) Information to demonstrate compliance regarding telephone answer standards
shall be reported to the New York State Commission on Cable Television and made
available to the City upon request for normal business hours on a quarterly basis and
shall include, at a minimum: (i) the total number of days trained company
representatives were available to receive incoming calls (ii) the total number of calls
received on such days (iii) average length of time a caller waits on hold before reaching
a trained company representative (iv) total number of calls abandoned by incoming
callers and (v) percentage of time callers received a busy signal when attempting to
reach the Cable System or such other information that will document compliance with
such standards.
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(4) Upon request, the Grantee shall provide quarterly reports with the City and must
maintain for a period of one (1) year at the local offices, a summary of records sufficient
to measure and verify compliance with quarterly telephone answer standards.
(5) Upon request, the Grantee shall provide quarterly reports on telephone answer
standards with the City on April 15, July 15, October 15 and January 15 of each year.
Y. Discontinuance of charges and refunds. The Grantee will discontinue charging
subscribers for service on the date requested by the customer. The Grantee may
charge customers for any unreturned equipment until the equipment is returned to the
Grantee by the customer. The Grantee shall refund on a pro-rata basis any
prepayments made by the subscriber.
Z. The format of a subscriber’s bill. The Grantee shall abide by the following format
requirements for subscribers’ bills.
(1) The bill shall be designed in such a way as to present the information contained
therein clearly and comprehensibly to subscribers.
(2) The bill shall contain itemized charges for each category of service and
equipment and any installation of equipment or facilities and monthly use thereof
(together, “equipment”) for which a charge is imposed (including late charges, if any), an
explicit due date, the name and address of the Grantee and telephone number for the
Grantee’s office responsible for inquiries and billing, the telephone number specified by
the City for the resolution of billing disputes, and the FCC Community Unit Identifier
Number. The bill shall state the billing period, amount of current billing and appropriate
credits or past due balances, if any. The bill shall contain all other information required
by federal or state regulations.
(3) The Grantee shall not charge a potential subscriber or current subscriber for any
service or equipment that the subscriber has not affirmatively requested by name. A
subscriber’s failure to refuse a cable operator’s proposal to provide such service or
equipment shall not be deemed to be an affirmative request for such service or
equipment.
AA. Payment options. The Grantee shall provide all individual, residential
subscribers with the option of paying for Cable Service by (i) cash, (ii) check, (iii) an
automatic payment plan, where the amount of the bill is automatically deducted from a
checking account designated by the subscriber, or (iv) by major credit card on a
preauthorized basis.
BB. Procedures for collecting late bills. The Grantee shall abide by the following
procedure for collecting late bills.
(1) No bill shall be due less than fifteen (15) days from the date of the mailing of the
bill by the Grantee to the subscriber.
(2) A bill shall not be considered delinquent until at least forty five (45) days have
elapsed from the mailing of the bill to the subscriber and payment has not been
received by the Grantee, provided that no bill shall be mailed more than fifteen (15)
days prior to the date services covered by such bill commence, except in cases where a
subscriber requests advance billing. Late fees shall accord with state law.
(3) The Grantee shall not physically or electronically discontinue service for
nonpayment of bills rendered for service until: (i) the subscriber is delinquent in payment
for service; and (ii) at least five (5) days have elapsed after a separate written notice of
impending discontinuance has been served personally upon a subscriber; or (iii) at least
eight (8) days have elapsed after mailing to the subscriber a separate written notice of
impending discontinuance (for which postage is paid by the Grantee), addressed to
such person at the premises where the subscriber requests billing; or (iv) at least five
(5) days have elapsed after a subscriber has either signed for or refused a certified
letter (postage to be paid by the Grantee) containing a separate written notice of
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impending discontinuance addressed to such person at the premises where the
subscriber requests billing.
(4) Notice of service discontinuance must clearly state the amount in arrears, the
total amount required to be paid to avoid discontinuance of service, reconnection
charges if applicable, and the date by which, and the place where, such payment must
be made. The Grantee shall not disconnect service for nonpayment on a Sunday,
public holiday or a day when Grantee’s local office is not open for business without
providing an opportunity for the subscriber to pay the amount in arrears.
(5) When the Grantee’s representative is at a subscriber’s residence or place of
business to disconnect service and the subscriber, at that time, pays the amount in
arrears in lieu of disconnection, the company may add a reasonable collection charge to
the subscriber’s bill, provided all other applicable provisions of this section have been
followed.
CC. Procedure for the resolution of billing disputes. The Grantee shall abide by the
following procedures in resolving billing disputes.
(1) The billing dispute resolution procedure shall be initiated once a subscriber
contacts the Grantee ’s department which handles billing questions, orally or in writing,
so long as such contact occurs within thirty (30) days from the date of receipt of the bill
by the subscriber.
(2) The subscriber shall not be required to pay the disputed portion of the bill until
the dispute is resolved. The Grantee shall not apply finance charges, issue delinquency
or termination notices, or initiate collection procedures for the disputed portion of the bill
pending resolution of the dispute.
(3) The Grantee shall promptly undertake whatever review is necessary to resolve
the dispute, and shall notify the subscriber in writing of the results of the review as soon
as it is completed and of its proposed resolution, but in no case later than twenty (20)
business days after receipt from the subscriber of the billing dispute or problem. If the
subscriber is not satisfied with the Grantee’s proposed resolution, the subscriber may
notify the City and the City may endeavor to resolve the matter and/or hold a hearing as
described in subsection J above.
DD. Referral of delinquent accounts to a collection agency. Prior to referring a
delinquent account to a collection agency, the Grantee shall follow the procedure listed
below.
(1) If the billing dispute resolution procedures are not required to be and have not
been initiated, the delinquent account may be referred to a private collection agency for
appropriate action no sooner than thirty (30) business days after it becomes delinquent.
(2) If the billing dispute resolution procedures have been initiated, the delinquent
account shall not be referred to a collection agency until the expiration of ten (10)
business days after the conclusion of those procedures, including any appeal to the City
pursuant to subsection J above.
EE. Billing practices information. The Grantee shall provide complete information
respecting billing and collection procedures, payment requirements, procedures for
ordering changes in or termination of services, and refund and outage credit policies to
all subscribers semi-annually, to all subscribers at least thirty (30) days in advance of
any significant change in such procedures and policies, and to all prospective
subscribers or users upon solicitation of service and prior to the consummation of any
agreement for installation of service. Such information shall be written in plain English.
FF. Response. The Grantee shall respond to all written billing inquiries within one
week of receipt unless a shorter response period is otherwise specified herein.
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GG. Subscriber equipment. The Grantee shall comply with all rules and regulations
promulgated by the FCC pursuant to Sections 623 and 624A of the Cable Act (47
U.S.C. §§ 543 and 544a).
HH. Underground service. For new installations, excluding locations where all utilities
are underground, if a subscriber requests underground Cable Service, the Grantee may
charge the subscriber the differential between the cost of aerial and underground
installation of the drop to the subscriber. This provision shall not apply where
undergrounding is required by City ordinance or policy.
II. Service in excess of 150’ feet. Service in excess of 150’ from existing aerial
distribution plant, and concealed wiring, shall be charged at such cost as exceeds
normal installation costs. The desire of the subscriber as to the point of entry into the
residence or commercial establishment and location of pedestal shall be observed
whenever possible. Runs in building interiors shall be as unobtrusive as reasonably
possible. The Grantee shall use due care in the process of installation and shall repair
any damage to the subscriber’s property caused by said installation. Such restoration
shall be undertaken within no more than ten (10) days after the damage is incurred and
shall be completed as soon as possible thereafter.
JJ. Resubscription to cable service. The Grantee shall not refuse to serve a former
subscriber whose service was terminated, so long as all past bills and late charges have
been paid in full. Grantee may require a reasonable deposit from such subscriber.
KK. Fee for disconnection. Any charge or fee for disconnection shall accord with
Federal law. The Grantee will make a plan available for part-time residents reflective of
the months service is used. A refund of unused service charges shall be paid to the
customer within thirty (30) days from the date of termination of service.
LL. Length of time to disconnection. If disconnection occurs at the subscriber’s
written or oral request, then, for billing purposes, it shall be deemed to have occurred
three (3) business days after the Grantee receives the request for disconnection at the
Grantee’s business offices unless (i) it in fact occurs earlier, or (ii) the subscriber
requests a longer period.
MM. Restoration of subscriber premises. The Grantee shall ensure that the
subscriber’s premises are restored to their original condition if damaged by the
Grantee’s employees or agents in any respect in connection with the installation, repair
or disconnection of cable service.
NN. Credits. In the event there is an FCC or NYSPSC requirement to retroactively
decrease or “rollback” rates, fees or charges for any service provided pursuant to the
franchise, the Grantee shall comply with such requirement.
OO. Charge for downgrades. If the downgrading of a subscriber’s service shall be
effected solely by coded entry on a computer terminal or by another similarly simple
method, the charge for such downgrading shall not exceed the cost. Charges for
changes in service tiers or equipment that are impossible to be made by coded entry on
a computer terminal or other similarly simple method and that involve a more complex
method shall not exceed allowable costs as established by the FCC or the State.
PP. Truth in advertising. The Grantee’s bills, advertising and communications to its
current or potential subscribers shall be truthful and shall not contain any false or
misleading statement. For the purposes of the preceding, a statement is false or
misleading if it contains an untrue statement of any material fact or omits to state a
material fact necessary in order to make the statements made, in the light of the
circumstances under which they were made, not misleading.
QQ. Prohibited activities. In the conduct of its business franchised hereunder, neither
the Grantee nor its officers, employees, or agents shall directly or indirectly sell, lease,
repair, install, or maintain television sets or receivers or antennas; provided, however,
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that nothing hereunder shall prohibit the Grantee, at customer’s request and without
payment, from examining or adjusting customer’s receiving set to determine whether
reception difficulties originate in the set or in the Grantee’s system.
RR. Abandonment. Grantee shall notify the City six months in advance of any plan to
abandon the Cable System.
SS. Operation after termination or expiration of franchise.
(1) Subscription rights. It shall be the right of all subscribers to receive continuous,
uninterrupted service insofar as their financial and other obligations to the Grantee are
honored.
(2) Cooperation. In the event that the Grantee elects to sell the system, or the City
gives notice of intent to terminate or fails to renew Grantee’s franchise in accordance
with Federal law, the Grantee shall cooperate with the City or new Grantee or operator
in maintaining continuity of service to all subscribers. During such period, the Grantee
shall be entitled to the revenues for any period during which it operates the system, and
shall be entitled to reasonable costs for any services Grantee renders when it no longer
operates the system.
(3) Failure to provide continuity. In the event the Grantee fails to operate the system
for seven (7) consecutive days without prior approval of the City or without just cause,
the City may, at its option, operate the system or designate an operator until such time
as the Grantee restores service under conditions acceptable to the City or a permanent
operator is selected. If the City is required to fulfill this obligation for the Grantee, the
Grantee shall reimburse the City for all reasonable costs or damages in excess of any
revenues from the system received by the City that are the result of the Grantee’s
failure to perform.
TT. Public, educational and governmental access. The City and Grantee shall
establish requirements in the franchise with respect to the designation of channel
capacity, facilities, equipment and services for public, educational and governmental
use.
UU. Institutional Network.
(1) The Grantee. The City and the Grantee may establish in the franchise
requirements for institutional networks.
(2) If, during the term of a franchise, the Grantee is adjudicated a bankrupt or makes
a general assignment for the benefit of creditors or takes the benefit of any insolvency
act, or a receiver or trustee in bankruptcy is appointed for the Grantee’s property and
such appointment for a receiver is not vacated and set aside within ninety (90) days
from the date for such appointment and said filing results in a liquidation or cessation of
operations of the I-Net in excess of thirty (30) days then, in that event, the fiber
institutional network in its entirety, including but not limited to all cable, both coaxial and
fiber-optic, switching and routing equipment, voice, video, and data equipment,
modulation equipment, edge and end equipment, all as necessary to assure the
continued functioning of the institutional network sites, shall immediately become the
property of the City as if said institutional network sites had been owned by the City
from the effective date of the franchise or from the date said institutional networks first
become operative, whichever is most appropriate.
VV. Rights of individuals.
(1) Nondiscrimination required. The Grantee shall not deny service, deny access, or
otherwise discriminate against subscribers or channel users on the basis of: age; creed;
color; disability; ethnicity; gender identity or presentation; height, immigration or
citizenship status; marital status; national origin; race; religion; sex; sexual orientation;
socioeconomic status; or weight of such person or group of people.
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(2) Fairness of accessibility. The entire system of the Grantee shall be operated in a
manner consistent with the principles of fairness and equal accessibility. Studio and
related services shall be available on a non-discriminatory basis to all City residents,
City businesses, City public agencies and other City entities having a legitimate use for
the same, and no such person or entity shall be arbitrarily excluded from its use.
Allocation of use of said facilities shall be made according to the rules or decisions of
the Access Oversight Committee and any regulatory agencies affecting the same.
WW. Plan to cure.
If the City at any time feels that the standards in this Section are not being met, the City
shall notify the Grantee in writing and the Grantee shall have 30 days to respond to the
City’s notice. This response will include a reasonable plan to cure the problem, if
applicable. Such plan to cure the problem shall be subject to approval by the City.
§ 152-9. Design, operation and construction provisions.
A. Location of Cable Systems. The Grantee shall construct, install, operate and
maintain all elements of the Cable System within the City in accordance with the maps
and other documents submitted in connection with this Article or the franchise.
B. Contractors and subcontractors. All contractors or subcontractors of the Grantee
must be properly licensed under all applicable federal, state and local laws and
regulations. The Grantee shall be responsible for all acts or omissions of any such
contractor or subcontractor in the construction, installation, maintenance or operation of
the Grantee’s Cable System.
C. Extension of service. The Grantee shall make cable service available to all single
family residential dwelling units, service to multiple dwelling units and commercial
establishments shall be made available upon 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.
D. Right of inspection of construction. The City shall have the right to inspect all
construction and 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 Article, the franchise and pertinent provisions of law. The Grantee shall fully
cooperate and provide access to equipment, records and other materials and
information prepared by Grantee in the ordinary course of business necessary for such
inspections and tests.
E. Right of inspection of property. At all reasonable times and upon advance written
notice and for the purpose of enforcement of this Article and the franchise, the Grantee
shall permit examination by any duly authorized representative of the City of all Cable
Systems and facilities together with any appurtenant property of the Grantee situated
within the City and outside of the City if it is utilized in the operation of the City’s Cable
System. The Grantee shall fully cooperate and otherwise assist in these activities.
F. Performance tests. Proof of performance testing shall occur within sixty (60) days
prior to the commencement of the Cable System service to each section of the City
during initial build-out and when sections of the system are rebuilt, as set forth in the
franchise. Should performance prove defective, the defect shall be appropriately
remedied. The costs of such test shall be borne solely by the Grantee. The results of
such tests shall be maintained for a period of two (2) years provided to the City upon
request .
G. Ongoing performance test. Proof of Performance testing shall be take place
semi-annually to ensure compliance with the same. The costs of such tests shall be
borne by the Grantee. The results of such tests shall be maintained for a period of two
(2) years and shall be provided to the City within five (5) business days of their
completion.
H. Quality of service.
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(1) Where the City has questions about the reliability or technical quality of cable
service, the City shall have the right and authority to require the Grantee to test, analyze
and report on the performance of the Cable System. The 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:
(a) The nature of the complaint, problem or issue which precipitated the special
tests.
(b) The system component or area tested.
(c) The equipment used and procedures employed in testing.
(d) The method, if any, in which such complaint, problem or issue was resolved.
(e) Any other information pertinent to said tests and analysis which may be required.
(2) 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.
(3) These tests shall be in addition to the other tests specified in this Section.
I. Technical requirements. The Grantee shall maintain the Cable System to meet
all technical requirements of the FCC, the New York State Department of Public
Service, this Article and the Franchise.
§ 152-10. Maintenance and Inspection.
A. General. The Grantee shall maintain wires, cables and all other real and personal
property and facilities constituting the Cable System in good condition, order and repair
at all times during the term of the franchise.
B. Radiation monitoring. Radiation monitoring of the Cable System 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.
§ 152-11. Employment practices.
A. Equal employment opportunity and affirmative action programs. The Grantee
shall comply with all applicable Federal and State equal employment opportunity
requirements. Upon request, the Grantee shall submit to the City any annual EEO
required by the FCC.
B. Nondiscrimination required. The Grantee shall not discriminate against any
employee or applicant for employment, subcontractor, supplier of materials or services,
or other person by reason of: age; creed; color; disability; ethnicity; gender identity or
presentation; marital status; national origin; race; religion; sex; sexual orientation or
socioeconomic status of such person or group of people. The Grantee shall comply at
all times with all other generally applicable Federal and State laws and regulations,
which are hereby incorporated and made part of this Article by reference.
§ 152-12. Records and reports.
A. Books and records available to the grantor.
(1) Books and records. The City reserves the right to inspect pertinent books,
records, maps, plans, financial statements and other like material of the Grantee
prepared in the ordinary course of business upon reasonable notice and during normal
business hours to determine Grantee’s compliance with the material terms of this Article
and the franchise.
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(2) Availability of records. If any of such maps or records is 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 its duties, then all travel and maintenance expenses
necessarily incurred in making such examination shall be paid by the Grantee.
B. Reports required. The Grantee shall file with the City upon request:
(1) 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.
(2) A facilities report. An annual report setting forth the physical miles of plant
construction and plant in operation during the fiscal year shall be submitted to the City.
Such report shall also contain any plant mile revisions filed with the City and copies of
all materials required by the franchise to be given to subscribers.
(3) Grantee rules. The Grantee’s schedule of charges, complaint, delinquent
subscriber disconnect and reconnect procedures and any other terms and conditions
adopted as the Grantee’s policy in connection with its subscribers shall be filed with the
City and readily available in the Grantee’s local office. Such rules, regulations, terms
and conditions shall not be in conflict with the provisions hereof or applicable State and
Federal laws, rules or regulations.
(4) Financial and ownership reports. The following financial reports shall be
submitted annually to the City:
(a) An ownership report indicating all persons who at any time during the preceding
year did control or benefit from an interest in the franchise of five percent (5%) or more.
(b) A copy of the Grantee’s and parent corporation’s annual reports to stockholders,
if prepared.
(c) A report on the placement of any limited partnership offering, including the
amount subscribed and the amount paid in.
(d) An annual City-only certified income statement showing revenues.
(5) Additional information. The Grantee shall furnish to the City such additional
information and records prepared by Grantee in the ordinary course of business with
respect to its operation, affairs, transactions or property as may be reasonably
necessary and appropriate to determine Grantee’s compliance with the material terms
and conditions of this Article or the franchise.
C. Records required. The Grantee shall at all times maintain:
(1) A set of records and maps as prepared in the ordinary course of business
showing the exact location of all cable installed or in use in the City, exclusive of
subscriber service drops.
§ 152-13. Construal of 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 Article.
§ 152-14. Initial Franchise Applications.
A. Invitation of any applications for an initial franchise, public notice of “request for
proposals.”
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The City may invite applications for a cable television franchise by means of a public
notice advertising the availability of its “Request for Proposals,” or may respond to a
written request for a franchise.
(1) The public notice shall contain, but need not be limited to:
(a) A description of the proposed franchise area.
(b) A statement that a formal “Request for Proposals” is available to prospective
applicants from a City official whose name, address, and telephone number are
specified.
(c) A statement that applications for the franchise must be submitted in writing in the
form and manner specified in the “Request for Proposals” no later than a day certain
(which date shall not be less than 60 days from the date of final publication of the public
notice).
(d) A statement that all applications will be made available for public inspection
during normal business hours at a specified location.
(2) The public notice shall be published and furnished to the New York State Public
Service Commission in a manner consistent with State regulation.
B. Applications for a franchise. The City may receive a request for a franchise from
any person at any time.
C. Request for proposals. Prior to inviting any applications or to receiving an
application for any cable television franchise, the City shall prepare a “Request for
Proposals” that shall contain, but need not be limited to, the following:
(1) A description of the Cable System and services desired by the City including any
system specifications established by the City.
(2) A statement specifying the form that all applications shall follow.
(3) A statement indicating the amount of the application fee (if any) to be submitted
with the application, and the manner in which such fee is to be submitted. The
application fee shall be in addition to the franchise expense reimbursement required by
this Article.
(4) A statement that all applications must contain the information required by the
“Request for Proposals.”
(5) The closing date for the submission of applications.
(6) The name, address, and telephone number of the City official(s) who may be
contacted for further information.
D. Franchise application. Any applicant for an initial franchise who is responding to
the City ’s Request for Proposals shall complete the City’s Request for Proposals and
provide the information required therein and any additional information required by
Federal or State regulation. Any applicant for a franchise who submits a written request
for a franchise shall provide the information required by federal or State regulation and
any additional information the City may reasonably request.
E. Public hearing on reasonable notice. The City shall conduct a public hearing
prior to awarding or denying any cable television franchise. The hearing shall be
preceded by reasonable notice to each of the franchise applicants and to the public, and
shall be conducted by the Common Council in accordance with the following
procedures:
(1) There shall be an agenda for the hearing which shall specify the proposal(s) to
be considered at the hearing.
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(2) Every person who has applied for a cable television franchise shall appear at the
hearing either in person or by authorized representative. The application of any
applicant not so appearing shall not be further considered, except for good cause
shown.
(3) All persons shall be given opportunity to participate in the hearing and to ask
questions of any applicant or participant in the hearing, but nothing contained herein
shall limit the power of the presiding officer to establish reasonable time limits and
otherwise limit repetitive statements or questions.
(4) The notice of hearing shall:
(a) Conform to all relevant State and local laws and Ordinances.
(b) Describe the agenda to be considered at the public hearing.
(c) Indicate that copies of all franchise applications are available for public inspection
during normal business hours at a place to be specified in the notice.
(5) The City shall follow the time limits specified by State regulation for the
convening of public hearin gs and for award or denial of a franchise following the close
of the hearing.
F. City discretion. Subject to federal law, the City, at its discretion, may reject any
application for a franchise or may award a franchise. The City’s decision to reject an
application or to award a franchise shall be in writing and shall specify the City’s
reasons for its decision. In awarding a franchise, the City: shall allow the applicant’s
Cable System a reasonable period of time to become capable of providing cable service
to all households in the franchise area; may require adequate assurance that the cable
operator will provide adequate public, educational, and governmental access channel
capacity, facilities, financial support or institutional network facilities; and may require
adequate assurance that the cable operator has the financial, technical, or legal
qualifications to provide cable service, and may consider any other items deemed
appropriate by the Common Council. The terms and conditions of all franchises shall
be subject to the approval of the New York State Commission on Cable Television.
§ 152-15. Notices.
Every notice to be served upon the City shall be sent by certified mail, postage prepaid,
to the City’s Mayor and Clerk. Every notice to be served upon the Grantee shall be sent
by certified mail, postage prepaid, to the Grantee at its Ithaca office.
§ 152-16. Force majeure.
If, by reason of Force Majeure, either the City or the Grantee 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.
§ 152-17. Compliance required.
The Grantee shall not be excused from complying with any of the terms and conditions
of this Article or franchise by any failure of the City upon any one (1) or more occasions
to insist upon or to seek compliance with any such terms or conditions.
§ 152-18. Severability.
If any section, sentence, paragraph, term or provision of this Article is determined
to be illegal, invalid or unconstitutional, by any court of applicable 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. If
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this Article or any provision thereof shall be held to be inapplicable to any Person,
property or circumstances, such holding shall not affect its applicability to any other
Person, property or circumstances.
Section 2. Severability.
Severability is intended throughout and within the provisions of this ordinance. If any
section, subsection, sentence, clause, phrase or portion of this ordinance is held to be
invalid or unconstitutional by a court of competent jurisdiction, then that decision shall
not affect the validity of the remaining portions of this ordinance.
Section 3. Effective Date.
This Ordinance shall take effect immediately in accordance with law upon publication of
a notice as provided in the Ithaca City Charter.
12.9 AN ORDINANCE TO AMEND THE CODE OF THE CITY OF ITHACA TO ADD
PROVISIONS RELATING TO TELECOMMUNICATIONS FRANCHISING AND
TELECOMMUNICATIONS AND CABLE TELEVISION SYSTEMS.
ORDINANCE NO. ________
BE IT ORDAINED AND ENACTED by the Common Council of the City of Ithaca as
follows:
Section 1. Chapter 152 Of The Code Of The City Of Ithaca Is Hereby Amended To Add
Article II, Entitled “City Of Ithaca Telecommunications Ordinance,” As Follows:
ARTICLE II
TELECOMMUNICATIONS ORDINANCE
§ 152-30. SHORT TITLE.
This Article shall be known and may be cited as “City of Ithaca
Telecommunications Ordinance.”
§ 152-31. LEGISLATIVE INTENT AND APPLICABILITY.
A. INTENT. The City of Ithaca finds that: the development of
telecommunications and competition in the telecommunications marketplace has the
potential of having great benefit, including, but not limited to service, revenue,
opportunity to lay City conduit, and economic development in the City of Ithaca; the
establishment of clear and nondiscriminatory guidelines, standards and time frames for
the regulation of Telecommunications Providers in the Public Right-of-Way will assist in
promoting competition and reasonable use of the Public Right-of-Way and minimize
disruption of and damage to the Public Right-of-Way and minimize the risk of personal
injury and/or property damage to third parties; the City should manage the limited
physical capacity of the Public Right-of-Way; Telecommunications Providers should
compensate the City for the value of and use of the Public Right-of-Way, the cost of
maintaining the Public Right-of-Way, the cost of regulation, the shortened life of
pavement, added police costs to deal with traffic disruptions, impact on traffic, and
interference with the City’s other systems; and the Telecommunications Providers
should adhere to Federal, State, and local regulation. The City further finds that: the
Public Right-of-Way to be used by Grantees in the operation of their Facilities and
provision of Telecommunications Services are valuable public properties acquired and
maintained by the City and State at great expense to their taxpayers; the grant to the
Grantee to the said Public Right-of-Way is a valuable property right without which the
Grantee would be required to invest substantial capital in Public Right-of-Way costs and
acquisitions; and the administration of this Article and the Franchise imposes upon the
City additional regulatory responsibility and expense. The City further finds that the
public convenience, safety and general welfare can best be served by exercising
regulatory powers which are vested in the City or such Persons as the City shall
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designate. Every Franchise issued pursuant to this Article shall be deemed to include
these findings as an integral part thereof.
B. APPLICABILITY .
The City of Ithaca Telecommunications Ordinance is applicable to all
Telecommunications Systems and Telecommunications Providers in the City using or
occupying the Public Right-of-Way. A Franchise granted pursuant to this Article does
not authorize the Franchisee to construct or operate a Cable Television System or to
provide Cable Services and/or to provide an Open Video System. Franchisees or
others seeking to construct or operate a Cable Television System or an Open Video
System or to provide Cable Service shall be franchised under the provisions of the
Ithaca Cable Television Regulatory Ordinance, Chapter 152, Sections 152-1 et seq., as
amended. Franchisees franchised pursuant to the Ithaca Cable Television Regulatory
Ordinance shall comply with Section 152-37 of this Article.
§ 152-32. DEFINITIONS.
For the purpose of this Article 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.
AERIAL FACILITIES means utility poles, utility facilities and telecommunications
Facilities located above the surface of the ground, and the underground supports and
foundations for such poles and Facilities.
CABLE SERVICE shall mean
A. The one-way transmission to subscribers of video programming or other
programming service; and
B. Subscriber interaction, if any, which is required for the selection or use of such
video programming or other service.
“CABLE TELEVISION SYSTEM,” or “CABLE SYSTEM” shall mean 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 terms do 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 subscribers without using any Public Right-of-Way;
C. A Facility of a common carrier which is subject, in whole or in part, to the
provisions 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.
“CITY” or “GRANTOR” means the City of Ithaca, New York.
COMMON COUNCIL means the Mayor and Council of the City of Ithaca.
“COMMUNICATIONS POLICY ACT” or “CABLE ACT” means the
Communications Act of 1934, the Cable Communications Policy Act of 1984, the Cable
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Television Consumer Protection and Competition Act of 1992, and the
Telecommunications Act of 1996, as they may be amended or succeeded.
EXCLUDED AREAS means the parks, greenways and natural areas in the City.
“FACILITY” or “FACILITIES” means any real property owned or used by the
Grantee(s) to provide Telecommunications or Cable Services, as applicable, and any
Telecommunications System, Cable Television System, or Open Video System, as
applicable.
FCC means the Federal Communications Commission or any duly established
successor.
FORCE MAJEURE means the following: acts of God; acts of war; 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 of any of their departments, agencies, political subdivisions or
officials or any civil or military authority; insurrections; riots; epidemics; landslides;
lightning; earthquakes; fires; hurricanes; volcanic activity; storms; floods; washouts;
droughts; civil disturbances; and explosions.
FRANCHISE means a Franchise contract entered into voluntarily by the Grantee,
containing Grantee’s specific rights and obligations. The Franchise contract may
incorporate by reference specifications, applications and other related material. A
Franchise granted pursuant to this Article grants the nonexclusive rights to construct,
operate and maintain a Telecommunications System and/or provide
Telecommunications Services along the Public Right-of-Way within all or a specified
area in the City. Any such authorization, in whatever form granted, shall not mean or
include any Franchise, 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.
FRANCHISE AREA means the entire City, or portions thereof, for which a
Franchise is granted under the authority of this Article. If not otherwise stated in the
franchise, the franchise area shall be the corporate limits of the City, including all
territory hereafter annexed to the City.
“FRANCHISEE” or “GRANTEE” means any Person of any kind which has been
legally granted a Franchise by the City, and shall include the lawful successor,
transferee or assignee of such Grantee.
FRANCHISE FEE means the percentage, as specified by this Article, of the
Grantee’s Gross Annual Revenues payable in exchange for the rights granted pursuant
to this Article and the Franchise.
GROSS ANNUAL REVENUES means all revenues derived annually, directly or
indirectly, by the Grantee from operation of the Grantee’s Telecommunications System,
including but not limited to: (i) the provision of Telecommunications Services that
originate or terminate in the City; (ii) the leasing or other conveyance of dark or dim fiber
strands allocated for the portion of the lease or other conveyance that is installed in the
City; (iii) the selling or leasing of equipment and/or Facilities provided by the Grantee if
such Facilities and/or equipment are required for and integrated with the
Telecommunications Services provided by the Grantee within the City; and (iv) the
provision of any Service Related Activity. Gross Annual Revenues does not include
Federal, State or local taxes and regulatory fees required to be collected from
subscribers. Notwithstanding the foregoing, Gross Annual Revenues shall not include
revenues -- collected by the Grantee for leases or other conveyances of dark or dim
fiber to affiliates of the Grantee, but instead shall include an amount that is equal to five
percent (5%) of the Gross Annual Revenues of the affiliate for the provision of
Telecommunications Services in the City using dark or dim fiber.
HAZARDOUS MATERIALS means, without regards to amount and/or
concentration, petroleum, petroleum distillates or products, polychlorinated biphenyls
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(PCBs), asbestos, formaldehyde, radioactive materials, and any substances which are
now defined or may be defined in the future as, or otherwise included in the definition of,
“hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic
substances,” “toxic pollutants,” “pollutants,” or “contaminants” under any federal or New
York State law, statute, rule, regulation, or code.
LANDMARK means a natural or human-made feature of the City of Ithaca, so
designated by the Common Council, deserving special recognition and protection for its
historic, cultural or aesthetic value, as further described in Chapter 228, Landmarks
Preservation, of this Code.
LONG DISTANCE NETWORK SERVICE means those Telecommunications
Services provided by Grantee beyond the local telephone service area, which do not
terminate or originate in the City of Ithaca.
“LONG DISTANCE NETWORK SERVICE AND PRIVATE SERVICE LINEAR
FOOT FEE” or “LINEAR FOOT FEE” means the Long Distance Network Service and
Private Service Linear Foot Fees, as specified by this Article, payable in exchange for
the rights granted pursuant to this Article and the Franchise.
NEW YORK STATE DEPARTMENT OF PUBLIC SERVICE (NYSDPS) means
the State service agency regulating telecommunications or any successor State agency
with similar responsibilities.
NOTICE shall be a written notice addressed to the Grantee or the City at its
principal office or such other office as the Grantee or City has designated to the other as
the address to which Notice shall be transmitted to it. In computing Notice time,
holidays recognized by the City and Saturdays and Sundays shall be excluded.
“OPEN VIDEO SYSTEM” or “OVS” refers to any channel or a Facility consisting
of a set of transmission paths and associated signal generation, reception, and control
equipment that is designed to provide Cable Service, which includes video
programming, which is provided to multiple subscribers within a community, and which
the Federal Communications Commission or its successor has certified as compliant
with Part 76 of the Rules of the Federal Communications Commission, 47 C.F.R. Part
76, as amended from time to time.
PERSON means an individual, partnership, association, organization,
corporation, limited liability company or other entity or any lawful successor or
transferee of such individual, partnership, association, organization, corporation, limited
liability company or other entity.
PRIVATE SERVICE means a Telecommunications System placed in whole or in
part in the Public Right-of-Way for the provision of communications in connection with a
Person’s business, but not encompassing in any respect the provision of
Telecommunications Services to other persons.
PUBLIC PROPERTY means any real property and improvements thereon, other
than the Public Right-of-Way, owned by the City.
PUBLIC RIGHT-OF-WAY means the surface, the air space in, on, under, through
or above the surface and the area in, on, under, along, through or below the surface of
the particular public streets, roads and sidewalks located within the City.
Notwithstanding the foregoing, this term shall not include any Excluded Areas.
SERVICE RELATED ACTIVITY means any activity or function associated with
the distribution or provision of Telecommunications Services over the
Telecommunications System, including without limitation, repair service, use of Facilities
or subscriber terminal equipment, billing charges, advertising, installation, disconnects
or reconnects of service, collecting bad debts, or sale or lease of merchandise in the
City of Ithaca.
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STATE means the State of New York.
TELECOMMUNICATIONS PROVIDER means and includes every Person who
provides Telecommunications Services over a Telecommunications System.
TELECOMMUNICATIONS SERVICES means and includes, without limitation:
The provision of dark or dim fiber transmission or any electromagnetic communications
including but not limited to voice, image, data and any other information, by means of
but not limited to wire, cable, including fiber optical cable, microwave, radio wave or any
combinations of such media, and the resale or leasing of any such service.
“Telecommunications Services” includes but is not limited to value added services,
alternate operator service, telephone service originating and/or terminating within the
City, a pro-rata share of toll telephone service originating or terminating within the City,
and teletypewriter or computer exchange service, including but not limited to residential
and business service, directory assistance, pay telephones, cellular mobile telephones,
personal communications services, specialized mobile radios, inter-state services, video
dialtone service, pagers and paging service, including any form of mobile two-way
communication; except that cable television services, as defined in the Cable Act, are
not permitted to be provided under this Article.
TELECOMMUNICATIONS SYSTEM means the equipment and real and
personal property used within the City to provide Telecommunications Services,
including without limitation, the headend, antenna, cables, fiber optics, wires, lines,
towers, amplifiers, lasers, converters, modems, health alert services, and property
security systems located in the City designed, constructed or wired for the purpose of
producing, receiving, amplifying and distributing signals by coaxial cable, fiber optics,
microwave or other means, to and from subscribers which originate and/or terminate in
the City, and any other equipment or Facilities located within the corporate limits of the
City intended for the use of the Telecommunications System; except that a Cable
Television System or the provision of Cable Service or an Open Video System are not
permitted pursuant to this Article.
TRANSFER means the disposal by the Grantee, directly or indirectly, by gift,
assignment, voluntary or involuntary sale, merger, consolidation or otherwise, of twenty-
five percent (25%) or more at one time of the ownership or controlling interest in the
Telecommunications System, Franchisee, or Franchise, or twenty-five percent (25%)
cumulatively over the term of the Franchise of such interest to a Person or group of
Persons acting in concert, or as otherwise provided for in this Article.
§ 152-33. GRANT OF FRANCHISE.
A. GRANT.
1. Grant of Authority . Pursuant to the authority of the City Charter
and Code and general statutory laws, and subject to the terms and conditions set forth
herein, the City may grant revocable and non-exclusive Franchises to construct and
operate a Telecommunications System in the Public Right-of-Way for the purpose of
reception, transmission, collection, amplification, origination, distribution or redistribution
of electronic signals and for the development and/or provision of Telecommunications
Services in accordance with the laws and regulations of the City of Ithaca, the State of
New York, and the United States of America. A Franchise shall not convey title,
equitable or legal, in the Public Right-of-Way. Grantee obtains no rights to or further
use of the Public Right-of-Way other than those expressly granted herein. The City
shall at all times control the distribution of space in, on, over, under, along, through or
across all Public Right-of-Way occupied by the Telecommunications System.
2. Nonexclusivity . No grant of any Franchise shall affect the right of
the City to grant to any other Person a right to occupy or use the Public Right-of-Way, or
portions thereof, for the construction and operation of a Telecommunications System
and/or the provision of Telecommunications Services within the City or the right of the
City to permit the use of the Public Right-of-Way of the City for any purpose whatever.
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By accepting a Franchise, the Grantee thereby acknowledges the City’s right to make
such grants and permit such uses.
3. Exclusions . A Grantee, pursuant to this Article, shall not provide a
Cable Television System or Cable Service or provide an Open Video System without
obtaining a cable television franchise from the City pursuant to the Ithaca Cable
Television Regulatory Ordinance, Chapter 152, Sections 152-1 et seq.
B. FRANCHISE REQUIRED.
No Telecommunications System shall be allowed to occupy or use the Public
Right-of-Way without being granted a Franchise from the City pursuant to this Article.
Any Telecommunications System located in the Public Right-of-Way on the
effective date of this Article shall obtain a Franchise from the City within six (6) months
from the effective date of this Article, unless such time frame is extended by the City.
Any Cable Television System or Open Video System or Cable Service provider
franchised under the Ithaca Cable Television Regulatory Ordinance, Chapter 152,
Sections 152-1 et seq., shall obtain a Franchise pursuant to this Article prior to using or
occupying the Public Right-of Way to provide Telecommunications Services or Service
Related Activities in the City.
C. FRANCHISE APPLICATIONS .
1. Invitation of Applications for a Franchise, Public Notice .
(a) The City may invite applications for non-exclusive
telecommunications Franchises by means of a public notice.
(b) The public notice shall contain, but need not be limited to:
i. A description of the proposed Franchise Area.
ii. A statement that an application form is available to
prospective applicants from a City official whose name, address, and telephone number
are specified.
iii. A statement that applications for the Franchise must
be submitted in writing in the form and manner specified in the application.
iv. A statement that all applications will be made
available for public inspection during normal business hours at a specified location.
2. Applications for a Franchise .
(a) The City may receive a request for a Franchise from any
Person at any time.
D. APPLICATION PROCESS .
1. Application . For any applications for any telecommunications
Franchise, the City shall prepare an application form that shall contain, but need not be
limited to, the following:
(a) A statement specifying the form that all applications shall
follow.
(b) A statement indicating the amount of the application fee (if
any) to be submitted with the application, and the manner in which such fee is to be
submitted.
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(c) A statement that all applications must contain the
information required by the City.
(d) The identity of the Franchise applicant, including all affiliates
and parent corporation(s) of the applicant.
(e) A statement that the Grantee will not provide Cable Service
without a cable television franchise from the City pursuant to Chapter 152, Sections
152-1 et seq.
(f) A description of the transmission medium in the
Public Right-of-Way that will be used by the Grantee to offer or provide such
Telecommunications Services.
(g) Preliminary engineering plans, specifications and a network
map of the Telecommunications System to be located in the Public Right-of-Way, all in
sufficient detail to identify:
i. The location and route in the Public Right-of-Way
requested for applicant’s proposed Telecommunications System.
ii. The location of all overhead and underground public
utility, telecommunication, cable, water, sewer, drainage and other facilities in the Public
Right-of-Way along the proposed route.
iii. The locations, if any, for interconnection within the
Public Right-of-Way with the Telecommunications Systems of other
Telecommunications Providers.
iv. The specific trees, structures, improvements,
Facilities, and obstructions, if any, that applicant proposes to temporarily or permanently
construct, remove, trim, or relocate within the Public Right-of-Way.
(h) If applicant is proposing to install overhead Facilities within
the Public Right-of-Way, evidence that surplus space is available for co-locating its
telecommunications Facilities on existing utility poles along the proposed route.
(i) If applicant is proposing an underground installation in
existing ducts or conduits within the Public Right-of-Way, information in sufficient detail
to identify:
i. The excess capacity currently available in such ducts
or conduits before installation of applicant’s Telecommunications System.
ii. The excess capacity, if any, that will exist in such
ducts or conduits after installation of applicant’s Telecommunications System.
(j) If applicant is proposing an underground installation within
new ducts or conduits to be constructed within the Public Right-of-Way:
i. The location proposed for the new ducts or conduits.
ii. The excess capacity that will exist in such ducts or
conduits after installation of applicant’s Telecommunications System.
(k) Information to establish that the applicant has obtained all
other governmental approvals and permits to construct and operate the
Telecommunications System in the Public Right-of-Way and to offer or provide the
Telecommunications Services.
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(l) An accurate map showing the location of any existing
Telecommunications System in the Public Right-of-Way that applicant intends to use or
lease.
(m) The area or areas of the City the applicant desires to serve
and a schedule for build-out.
(n) All fees, deposits or charges required pursuant to this Article.
(o) Such other and further information relating to the City’s
management of the Public Right-of-Way as may be requested by the City.
(p) The name, address, and telephone number of the applicant
official(s) who may be contacted for further information.
2. Franchise Application . Any applicant for a Franchise shall
complete the City’s application form and provide the information required therein.
3. Franchise Negotiation. A proposed Franchise shall be negotiated
between the Grantee and City that is consistent with this Article and federal, state and
local laws and regulations. The Franchise shall contain, but is not limited to, specific
information regarding Grantee’s system, such as compliance with this Article, insurance,
bonds, conduit for City use, and permitting.
4. Public Hearing . The City may hold a public hearing on the
proposed Franchise.
5. City Decision. The Common Council shall have the authority to
grant any Franchise pursuant to this Article. Subject to Federal law, the City may reject
any proposed Franchise. The City shall base its decision to grant or deny any
Franchise on the applicant’s ability to comply with this Article, with federal and State
laws and regulations, and with the terms of the proposed Franchise, in a manner
consistent with applicable law.
E. FRANCHISE AREA.
The Franchise Area shall be the entire City, or portions thereof, for which a
Franchise is granted.
F. TERM OF FRANCHISE.
The term of the Franchise shall commence upon execution of the Franchise by
the City and the Grantee and shall continue for the period specified in the Franchise,
unless sooner terminated as provided herein.
G. CONTINUED OPERATION.
In the event the Grantee continues to operate all or any part of the Facilities in
the Public Right-of-Way after the term of the Franchise, then the Grantee shall continue
to comply with all applicable provisions of this Article, including, without limitation, all
compensation and other payment provisions of this Article, throughout the period of
such continued operation, provided that any such continued operation shall in no way
be construed as a renewal or other extension of the Franchise.
§152-34. REGULATION OF FRANCHISE
A. REGULATORY AUTHORITY.
1. On-Going Regulation. The City shall exercise appropriate
regulatory authority under the provisions of this Article and applicable law. This
authority shall be vested in the Common Council and administered through the Mayor
or his/her designee. The Mayor or his/her designee shall provide day-to-day
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administration and enforcement of the provisions of this Article and any Franchise
granted hereunder, and shall carry out the City’s responsibilities with regard to
telecommunications.
2. Change in Law or Regulation. Notwithstanding any other
provisions of this Article to the contrary, the Grantee shall at all times comply with all
laws and regulations of the local, State and Federal governments. In the event that any
actions of the State or Federal government or any agency thereof, or any court of
competent jurisdiction upon final adjudication, substantially reduces in any way the
power or authority of the City under this Article or the Franchise, or if in compliance with
any local, State, or Federal law or regulation, the Grantee finds conflict with the terms of
this Article, the Franchise, or any law or regulation of the City, then as soon as possible
following knowledge thereof, the Grantee shall notify the City of the point of conflict
believed to exist between such law, regulation or court decision, and the laws or
regulations of the City, this Article or the Franchise. The City, at its option, may notify
the Grantee that it wishes to negotiate those provisions which are affected in any way
by such modification in regulations or statutory authority or such court decisions.
Thereafter, the Grantee shall negotiate in good faith with the City in the development of
alternate provisions which shall, to the extent permitted by law, materially maintain the
rights of the City as established under the terms of this Article and the Franchise. The
City shall have the duty, based upon the results of such negotiations, to modify any of
the provisions to such reasonable extent as may be necessary to carry out the full intent
and purpose of this Article and the Franchise and the agreements reached in
negotiations.
3. Reservation of Rights for Regulation. The City reserves the right to
exercise the maximum plenary authority, as may at any time be lawfully permissible, to
regulate the Telecommunications System and/or Telecommunications Services, the
Franchise and the Grantee. Should applicable legislative, judicial or regulatory
authorities at any time permit regulation not presently permitted to the City, the City may
without the approval of the Grantee engage in any such additional regulation as may
then be permissible, whether or not contemplated by this Article or the Franchise,
including without limitation, regulation regarding Franchise Fees, taxes, or any other
similar or dissimilar matter.
4. Right of Inspection of Records. The City shall have the right to
inspect all books, records, reports, maps, plans, financial statements and other like
materials of the Grantee and any parent company to the extent such materials are
relevant to Grantee’s performance of its obligations under this Article and the Franchise,
at any time during normal business hours. Grantee shall provide such information in
such form as may be reasonably required by the City for said records.
5. Expense Reimbursement to City. The Grantee shall pay the City a
sum of money which will, when added to any application fees received, reimburse all
reasonable costs and expenses incurred by it in connection with the granting of an initial
Franchise, including, but not limited to, staff time, consultant fees, attorneys’ fees,
publication fees, travel expenses and all other direct costs. The Grantee shall pay the
City a sum of money which will reimburse all reasonable costs and expenses incurred
by it in connection with transferring, extending or renewing a Franchise, including, but
not limited to, staff time, consultant fees, attorneys’ fees, publication fees, travel
expenses and all other direct costs. The City shall submit a detailed schedule of all
such costs. Such payment shall be made within thirty (30) days after the City furnishes
the Grantee with a written statement of such expenses.
6. No Recourse Against the City. The Grantee shall have no recourse
whatsoever against the City or its officials, boards, commissions, agents, or employees
for any loss, cost, expense or damage arising out of any provision or requirements of
the Franchise or because of the lawful enforcement of this Article or the Franchise.
7. Time Is of The Essence to This Article. Whenever this Article shall
set forth any time for an act to be performed by or on behalf of the Grantee, such time
shall be deemed of the essence and any failure of the Grantee to materially perform
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within the time allotted shall be sufficient ground for the City to invoke an appropriate
penalty including possible revocation of the Franchise, subject to Notice and a time to
cure.
8. 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 rights except to the extent expressly waived by the City
or expressly provided for in the Franchise.
9. Effect of Pending Litigation. Unless a court order or stay provides
otherwise, pending litigation or any appeal to any regulatory body or court having
jurisdiction over the Franchisee shall not excuse the Franchisee from the performance
of its obligations under this Article or the Franchise. Failure of the Franchisee to
perform such obligations because of pending litigation or petition may result in
revocation or other action pursuant to the provisions of this Article or the Franchise.
10. General City Ordinances and Laws. Any Franchise granted by the
City is hereby made subject to the general ordinance and local law provisions now in
effect and hereafter made effective. Nothing in the Franchise shall be deemed to waive
the requirements of the various codes, ordinances, local laws, and regulations and
practices of the City regarding permits, taxes, fees to be paid or the manner of
construction.
11. Right of Condemnation Reserved. Nothing in this Article shall limit
any right the City may have to acquire by eminent domain any property of Grantee.
12. State, Federal, and Local Law. It is intended that any Franchise
granted pursuant to this Article shall be consistent with applicable State, Federal and
local law. In the event the provisions of this Article conflict with any applicable State or
Federal law, including but not limited to, the lawful rules and regulations of the FCC
and/or other State or Federal agencies having jurisdiction, such statutory requirements
and lawful rules and regulations shall be controlling.
13. Police and Regulatory Powers Reserved. The Grantee shall
comply with all applicable laws, ordinances and regulations enacted by the City
pursuant to its police and regulatory power. Any conflict between the terms of this
Article or the Franchise and any present or future lawful exercise of the City’s police and
regulatory powers shall be resolved in favor of the latter.
B. SUPERVISION OF THE FRANCHISE AND OTHER CITY AUTHORITY.
1. City Regulatory Authority. The City has the following regulatory
authority :
(a) Administration and enforcement of the provisions of this
Article and any Franchise granted hereunder.
(b) Award, renewal, modification, extension or termination of a
Franchise pursuant to the provisions of this Article, the Franchise, and other applicable
law.
(c) Consent prior to the transfer of any Franchise granted
hereunder, pursuant to the provisions of this Article, the Franchise, and applicable law.
(d) Performance evaluation.
(e) Formulate and recommend long-range telecommunications
policy for the City.
(f) Represent the City’s interest before local, State or Federal
government agencies in telecommunications matters.
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(g) Such other regulatory authority as appropriate to carry out
the intent of this Article or the Franchise.
2. Response to City Inquiries. In accordance with the terms of this
Article and the Franchise, the City may, at any time, make reasonable inquiries to
Grantee regarding the regulation of the Franchise. The Grantee shall respond to such
inquiries in a timely fashion.
C. TRANSFER OF OWNERSHIP OR CONTROL.
1. Ownership and Operation. Only the Grantee shall own, operate,
manage, and maintain the Telecommunications System in the Public Right-of-Way,
and/or provide Telecommunications Services through use of the Public Right-of-Way,
as allowed by the Grantee’s Franchise.
2. Transfer of Franchise or Telecommunications System. A Franchise
and its rights or privileges shall not be assigned or transferred, either in whole or in part,
or leased, sublet, or mortgaged in any manner, or otherwise disposed of, nor shall title
to the Telecommunications System in the Public Right-of-Way, legal or equitable, or any
right, interest or property therein, pass to or vest in any Person without the prior written
consent of the City. Any transfer of the Franchise or Transfer of the
Telecommunications System in the Public Right-of-Way without the prior consent of the
City shall make the Franchise subject to cancellation, provided, however, that the City
may thereafter give its consent to the Transfer in lieu of cancellation.
3. Ownership Transfer. The Grantee shall not Transfer twenty-five
percent (25%) or greater ownership interest in the Grantee, or twenty-five percent (25%)
cumulatively over the term of the Franchise of such interest to a Person or group of
Persons acting in concert without the prior written consent of City. Every Transfer shall
make the Franchise subject to cancellation unless the City shall have consented
thereto, provided, however, that the City may give its consent to the Transfer after it has
occurred in lieu of cancellation.
4. Transfer of Control. The Grantee or its parent corporation(s) shall
not Transfer control, in whatever manner exercised, of the Grantee without the prior
written consent of the City. Every Transfer of control of the Grantee shall make the
Franchise subject to cancellation unless the City shall have consented thereto,
provided, however, that the City may give its consent to the Transfer after it has
occurred in lieu of cancellation.
5. City Authorization . The City shall consent to any proposed
changes, transfers or acquisitions described in this Section if the Grantee is or comes
into full compliance with this Article and the Franchise, or if any proposed transferee,
assignee, lessee or successor agrees to assume responsibility for and remedy any non-
compliance by the Grantee. The City may condition its consent on a requirement that
the prospective transferee, assignee, lessee or successor reimburse the City’s
reasonable direct costs in processing the request for consent and further may require
that a guaranty be furnished by the parent corporations or the proposed transferee,
assignee, lessee or successor. No transfer for which the City’s consent is required may
occur until the transferee, assignee, lessee or successor has complied or agreed to
comply with all of the requirements of this Article, including, but not limited to, providing
certificates of insurance.
6. Security Interests. In t he event that Grantee pledges or otherwise
uses as collateral the Telecommunications System in the Public Right-of-Way in
connection with the financing of construction, installation or operation of the
Telecommunications System, such activity shall not be deemed an assignment under
this Article. Any security interest that Grantee may give shall not include the authority
for the security holder to take over and operate the Telecommunications System in the
Public Right-of-Way, or to assign such authority, without the written consent of the City.
The City agrees that the holder of any security interest shall not be prevented or
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impeded by the City from enforcing any security interest. If required by the financing
entity, Grantee shall promptly notify the City of the financing entity’s identity and the City
shall execute the acknowledgment of any security interest as is requested by Grantee to
give effect to the foregoing. Grantee shall immediately notify the City in writing when
the holder of any security interest makes an attempt to enforce such security interest.
7. Leases .
(a) The Grantee may enter into leases or subleases that
do not affect matters regulated by this Article or the Franchise, in the ordinary conduct
of its business, and may enter such leases or subleases with other City Franchisees
without City consent, so long as the Grantee remains solely responsible for locating,
operating, servicing, repairing, relocating or removing its Telecommunications System in
the Public Right-of-Way.
(b) Any lease, transfer, or other conveyance of the Facilities in
the Public Right-of-Way and/or of Telecommunications Services provided through use
of the Public Right-of Way, or of the operation of such, between Grantee and its
affiliates, subsidiaries, or any Person in which Grantee has a financial interest, shall be
an arms’ length transaction based on fair market value and fair market conditions in
effect at the time of the transaction. Grantee shall not engage in transactions with its
affiliates or subsidiaries that are intended to have the effect of evading the payment of
compensation that would otherwise be paid to the City for the rights granted hereunder,
provided, however, that leases or other conveyances of dark or dim fiber to affiliates of
Grantee shall not be deemed to be prohibited by this sentence.
8. 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 Public Right-of-Way, and any Transfer shall, by its terms, be expressly
subordinate to the terms and conditions of the Franchise.
9. Franchise Signatory. Any approval by the City of Transfer of
ownership or control shall be contingent upon the prospective controlling party
becoming a signatory to the Franchise.
D. FRANCHISE RENEWAL.
Upon completion of the term of any Franchise granted under this Article, the City
may, in compliance with applicable law, grant or deny renewal of the Franchise of the
Grantee. A renewed Franchise may differ from the original Franchise as long as it is
consistent with this Article, as it may be amended from time to time, and applicable law.
The City shall base its renewal decision on the Grantee’s ability to comply with this
Article, as amended, and with the terms of the proposed renewed Franchise, in a
manner consistent with applicable law.
E. FRANCHISE FEES AND IN-KIND COMPENSATION.
1. Franchise Fee and Linear Foot Fee.
(a) Franchisee shall pay to the City a Franchise Fee of five (5%)
percent of Gross Annual Revenues during the period of its operation under the
Franchise, pursuant to the provisions of this Article.
(b) As compensation for the use of the Public Right-of-Way for a
Telecommunications System solely providing Long Distance Network Service and/or
Private Service, Franchisee shall pay to the City a Linear Foot Fee of one dollar and fifty
cents ($1.50) per linear foot of Public Right-of-Way for the Facilities annually during the
period of its operation under the Franchise for the first three (3) years of the Franchise.
Thereafter, the Franchisee shall pay the fee of $1.50 per linear foot plus an annual
increase for inflation. Such inflation increase shall be based upon the regional
Consumer Price Index (CPI) published by the U.S. Department of Commerce for those
years.
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(c) The Franchisee shall promptly notify the City of any changes
in the Telecommunications System or Services which would change the basis on which
the fee to the City is calculated.
2. Franchise Fee and the Linear Foot Fee in addition to Other Tax or
Payments. Franchise Fees and the Linear Foot Fee shall be in addition to any other tax
or payment owed to the City or other taxing jurisdiction by the Grantee, unless such tax
or payment is deemed a Franchise Fee or a Long Distance Network Service and Private
Service Linear Foot Fee under applicable law. The payment of the aforesaid fees shall
in no way be construed to include the payment of real estate taxes to the City, nor shall
the Grantee deduct the Franchise Fee from its Gross Annual Revenues for the
purposes of computing the amount of Franchise Fee due.
3. Acceptance by the City . No acceptance by the City of any
payment shall be construed as a release or as an accord and satisfaction of any claim
the City may have for further or additional sums payable as a Franchise Fee or a Linear
Foot Fee under this Article or for the performance of any other obligation of the Grantee.
4. Failure to Make Required Payment. In the event that any payment
or recomputed amount is not made on or before the dates specified herein, Grantee
shall pay as additional compensation an interest charge, computed from such due date,
at the annual rate equal to the commercial prime interest rate of the City’s primary
depository bank during the period that such unpaid amount is owed.
5. Payments to be made Quarterly. The Franchise Fee and Linear
Foot Fee shall be payable quarterly to the City. The Grantee shall file a complete and
accurate verified statement of all Gross Annual Revenues within the City during the
period for which said payment is made, and said payment shall be made to the City not
later than thirty (30) days after the expiration of each quarter. Linear Foot Fees shall be
paid on all Public Right-of-Way, including any Public Right-of-Way annexed to the City
during the term of the Franchise. Each payment shall be accompanied by a brief report
showing the basis for the computation and such other relevant facts as may be required
by the City and such report shall be certified as true by a financial officer of the
Franchisee.
6. Audits. Upon reasonable advance written Notice by a duly
authorized official of the City to the Grantee, the City or its representatives shall have
the right annually to examine and inspect any documents of the Grantee, in the
presence of a representative of the Grantee, relating to the calculation of the Franchise
Fees or Linear Foot Fees to verify the accuracy of the payment of Franchise Fees or
Linear Foot Fees to the City. Such examination and inspection shall take place during
normal working hours at an office of the Grantee where it regularly maintains its books
and records. Such office shall be within the State of New York. Any audit shall be at
the expense of the Grantee if such audit finds that Grantee has underpaid the Franchise
Fee or the Linear Foot Fee by three percent (3%) or more, in which event the Grantee
shall reimburse the City for the reasonable expense of such audit. Any additional
amount due to the City as a result of the audit shall be paid within thirty (30) days
following written Notice to the Grantee by the City, which Notice shall include a copy of
the audit report.
7. In Kind Compensation and Use of Grantee’s Facilities.
(a) In addition to the Franchise Fee and Linear Foot Fee,
Grantee shall provide the following in kind compensation to the City:
i. The City shall have the right, during the life of the
Franchise, to install and maintain communications facilities free of charge upon
the poles or other above-ground Facilities owned by the Grantee. Where the
installation of such facilities by the City requires the adjustment of Grantee’s
Facilities on any pole or other above-ground Facility (whether owned by Grantee,
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another Company, the City, or another Person), such adjustment shall be made
by Grantee at a reasonable charge to the City.
ii. If Grantee applies for a permit to install any Facilities
underground in the Public Right-of-Way, then in addition to applying for all necessary
permits, Grantee shall notify by certified mail, the Mayor at City Hall, Suite 401, 108
East Green Street, Ithaca, New York 14850 and the Director of Economic Development
at City Hall, 108 East Green Street, Ithaca, New York 14850 in writing that Grantee has
applied for such a permit. The City shall have forty-five (45) business days from the
date of receipt of notice from the Grantee to notify Grantee in writing whether it desires
to install in Grantee’s trench(es) one (1) four-inch in diameter or larger conduit with
innerducts, at its sole cost and expense for the City’s use or to use five percent (5%) of
Grantee’s installed duct capacity, whichever is greater. The City’s conduit with
innerducts and facilities shall be allowed to have ingress and egress to pedestals,
manholes, and underground vaults and access to the same. If the City does not meet
the deadline specified above, Grantee shall use reasonable efforts to accommodate late
City requests for use of Grantee’s trench(es) and installation of conduit as specified
herein. The City shall obtain any necessary governmental licenses or permits and any
necessary governmental or private easements or authorizations required for the City’s
conduit at its sole cost and expense. The City’s installation of the conduit shall not
unduly delay Grantee in constructing or installing its Facilities. Grantee shall not charge
the City for construction of the trench(es). The City, at its option, may elect to have
Grantee (rather than the City or its designee) install the one (1) four-inch in diameter or
larger conduit with innerducts and pull lines in the conduit for the City’s use. The City
shall own such conduit installed by itself, a designee, or the Grantee. If Grantee installs
the City’s conduit, Grantee shall not charge the City for any portion of the construction
and installation costs related to the Grantee’s network containing such City conduit that
are incurred by Grantee, but may charge the City, on an incremental basis, costs
incurred by Grantee for materials, permits, licenses, authorizations and engineering
fees, if any, incurred by Grantee for the City conduit (“Costs”). If the City requested the
Grantee to construct and install the conduit, Grantee shall provide the City with an
itemized invoice and shall transfer ownership of said conduit to the City upon the City’s
payment of the Costs within thirty (30) days from the City’s receipt of an itemized
invoice from Grantee. At the end of the term of Grantee’s Franchise and any
extensions or renewals thereof, or if the Franchise is terminated for any other reason,
the City, in its discretion and at its sole cost and expense, shall be entitled to continue
its use of and access to the Grantee’s trench(es), pedestals, manholes, conduits and
underground vaults, provided that the City has or will obtain any necessary licenses,
authorizations, easements, permits and approvals that may be required. The City shall
be required to maintain and operate said conduit at its sole cost and expense. Grantee
and City shall not physically interfere with each other’s conduit and Facilities.
(b) In lieu of all or a portion of the Franchise Fee or the Linear
Foot Fee, the City may in its discretion require the Grantee to provide
telecommunications facilities or services as in kind compensation, with values that are
comparable to such fees. Such in kind facilities or services may include, but not be
limited to, lease of dark fiber, dial tone service, and lease of T1 circuits.
F. CIVIL PENALTIES AND DAMAGES.
1. Civil Penalties. If the Grantee violates any provision of this Article
or the Franchise and fails to come into compliance after Notice from the City as
specified below, the Grantee shall be liable for civil penalties as specified in the
schedule of penalties set forth in this Article.
2. Liquidated Damages. The Franchise may contain a schedule of
liquidated damages, calculated in compliance with applicable law, for violations of this
Article or the Franchise. Grantee shall pay to the City the full amount of such liquidated
damages if it fails to come into compliance after Notice from the City as specified below.
3. Notice and City Remedies. Before seeking collection of civil
penalties, liquidated damages, other damages, or revocation of the Franchise the City
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shall provide the Grantee with a detailed written Notice of the violation. Grantee shall
have thirty (30) days from receipt of the Notice to show to the City’s satisfaction that it is
not in violation or has come into compliance, or, if the violation is not capable of being
cured within thirty (30) days, to submit a plan and schedule satisfactory to the City to
promptly cure the violation and thereafter comply with the plan and schedule until
Grantee is in compliance. If the Grantee fails to come into compliance as described in
this paragraph, then the City may commence an action or special proceeding against
the Grantee in a court of competent jurisdiction to collect civil penalties and/or damages,
together with costs, disbursements and recoverable attorneys’ fees, and/or compel
compliance with or restrain by injunction any violation. In lieu of an action to collect civil
penalties and/or damages, the City may make a demand for the payment of liquidated
damages or other damages as specified in the Franchise, and the Grantee shall pay or
permit to be paid from the performance or construction bonds, as applicable, the full
amount demanded within ten (10) days of receipt of the demand. The City may in
addition or in the alternative to other remedies seek to revoke the Grantee’s Franchise
as described below if the violation is one specified in Subsection G(1) below. The
imposition of civil penalties or liquidated or other damages shall not preclude the City
from exercising the other enforcement provisions of this Article. Violations shall be
excused if caused solely by a Force Majeure event.
4. Amounts received by the City. Amounts received by the City as
civil penalties or damages assessed against the Grantee, whether directly paid by the
Grantee to the City or withdrawn from the performance bond or construction bond by
the City, shall be placed in the general fund of the City.
5. Accrual of Penalties and Damages. Any civil penalties, liquidated
damages, other damages or claims arising out of any actual breach of this Article or the
Franchise shall accrue from the date the City or court, as applicable, finds such breach
commenced. The Grantee’s responsibility to cure any such breach or remit any such
civil penalties or damages shall not be diminished by the failure of the City to enforce
any provision of this Article or the Franchise.
6. Schedule of Civil Penalties. The following civil penalties shall apply
to violations of this Article or the Franchise:
(a) Failure to maintain operating authorizations with the
NYSDPS or the FCC - $100.00 per day until obtained.
(b) Failure to deliver evidence of Grantee insurance within the
specified sixty (60) days - $500.00 per day until delivered.
(c) Failure to restore an amount withdrawn from the
performance bond or construction bond within the specified thirty (30) days - $100.00
per day until restored.
(d) Failure to render payment of the Franchise Fee or Linear
Foot Fee within the time specified in this Article or the Franchise - $100.00 per day until
paid.
(e) Failure to restore damaged property as required in this
Article or the Franchise - $500.00 per occurrence or $100.00 per day, whichever is
greater.
(f) Failure to maintain proper records and files as required in
this Article or the Franchise - $500.00 per occurrence or $100.00 per day, whichever is
greater.
(g) Failure to disclose pertinent books and records as required
in this Article or the Franchise - $500.00 per occurrence or $100.00 per day, whichever
is greater.
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(h) Failure to provide required reports or maps within the time
specified in this Article or the Franchise; or failure to comply with a specific order of the
City appropriately issued under terms of this Article or the Franchise or any other valid
legal authority - $500.00 per occurrence or $100 per day, whichever is greater.
(i) Failure to cure a lapse of maintenance or operation of
the Facilities affecting service within the City in a manner consistent with
applicable standards as defined in this Article or the Franchise and
creating an unsafe condition - $500.00 per occurrence or $100 per day,
whichever is greater.
(j) Failure to comply with other material provisions of this Article
or the Franchise - $200 per day.
(k) Failure to comply with any proper and applicable provisions
against discriminatory employment as required in this article or the franchise-$500.00
per occurrence or $100 per day, whichever is greater.
G. FORFEITURE OR REVOCATION.
1. Grounds for Revocation. The City may revoke any Franchise
granted hereunder and rescind all rights and privileges associated with the Franchise in
the following circumstances, each of which shall represent a default and breach under
this Article and the Franchise.
(a) The Franchise was fraudulently obtained.
(b) The Grantee should default in the performance of any of its
material obligations under this Article or the Franchise granted hereunder.
(c) The Grantee should fail to provide or maintain in full force
and effect the construction or performance bonds or equivalent as required herein, or
meet its obligations regarding liability and indemnification as provided in this Article and
the Franchise.
(d) The Grantee attempts to dispose of or Transfer any of the
Telecommunications System to prevent the City from recovering any payments due or
any losses or damages arising out of the Franchise.
(e) The Grantee has transferred ownership or control of the
Franchise without prior approval of the City.
(f) The Grantee evades any material provision of this Article or
Franchise by a pattern of fraud or deceit.
(g) Material misrepresentation of fact in the application for or
negotiation of the Franchise or any extension, renewal, or modification thereof.
(h) The Grantee’s construction schedule is delayed later than
the schedule contained in the Franchise or beyond any extended date set by the City.
(i) The Grantee ceases to provide services over the
Telecommunications System in the Public Right-of-Way for any reason within the
control of the Grantee.
(j) The occurrence of any event which may reasonably lead to
the foreclosure or other similar judicial or nonjudicial sale of all or any material part of
the Telecommunications System.
(k) The condemnation by a public authority other than the City,
or sale or dedication under threat or in lieu of condemnation, of all or any part of the
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Telecommunications System, the effect of which would materially frustrate or impede
the ability of the Grantee to carry out its obligations, and the purposes of this Article.
(l) In the event that the Grantee shall suspend or discontinue its
business.
(m) A persistent failure by the Grantee to comply with any of the
provisions, terms or conditions of this Article or the Franchise or with any rules,
regulations, orders or other directives of the City after Grantee has received Notice of a
failure to comply.
(n) Grantee violates any material orders or rulings of any
regulatory body having jurisdiction over the Grantee which is related to Grantee’s
performance under this Article or the Franchise, unless the Grantee is lawfully
contesting the legality or the applicability of such order or ruling.
(o) Grantee fails to comply with any Federal or State judgment
arising directly from the Grantee’s actions related to its Telecommunications System in
the Public Right-of-Way or Telecommunications Services provided through use of the
Public Right-of-Way.
(p) Grantee fails to properly compensate the City as required by
this Article or the Franchise.
(q) Grantee’s approval to provide Telecommunications Services
is revoked by the FCC or the State.
(r) Grantee is adjudicated a bankrupt, has filed a voluntary
petition for bankruptcy or reorganization or for an order protecting its assets from the
claims of creditors, or makes a general assignment for the benefit of creditors, or takes
the benefit of any insolvency act, or a temporary receiver or trustee is appointed for the
Grantee’s property and such appointment is not vacated and set aside within ninety (90)
days from the date of such appointment.
2. Revocation Procedure.
(a) If after receipt of Notice from the City, the Grantee fails to
cure a violation of this Article or the Franchise within the stated period as
specified in Subsection F(3) above, and the violation is one specified in
Subsection G(1), the City may place its consideration of whether to revoke the
Franchise upon a regular or special Common Council meeting agenda. At least
fourteen (14) days prior to the date of such Common Council meeting, the City
shall cause written notice to be served upon such Grantee specifying the
purpose, time and place of the meeting.
(b) The Common Council shall receive public comment from any
Persons (including the Grantee) and shall determine whether or not Grantee is in
default based upon Common Council’s review of the public comment, materials,
available information and staff recommendations.
(c) If Common Council determines Grantee is in default, then
Common Council may by resolution declare that the Franchise of the Grantee
shall be terminated and order the Grantee to commence the removal of the
Telecommunications System in the Public Right-of-Way or to stop the delivery of
Telecommunications Services through use of the Public Right-of-Way or to
cooperate with the City, or any such Person authorized or directed by the City, to
operate the Telecommunications System in the Public Right-of-Way for a period
of time specified by Common Council in order to maintain continuity of service.
Common Council may in addition or in the alternative pursue other remedies
provided by this Article, the Franchise, or applicable law, including foreclosing on
all or any part of the security provided pursuant to this Article, including, without
limitation, the performance bond or the construction bond; provided, however,
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that the foreclosure shall be in such amount as the City reasonably determines is
necessary to remedy the default and shall include payment of all City expenses
incurred in connection with any determination of default.
(d) If, by reason of Force Majeure, the Grantee is unable, in
whole or in part, to carry out its obligations under this Article or the Franchise, the
Grantee shall not be deemed in violation or default during the continuance of such
inability.
3. Nonexclusivity of Remedy. No decision by the City to invoke any
remedy under this Article or under any statute, law or ordinance shall preclude the
availability of any other remedy.
4. Jurisdiction. Exclusive jurisdiction and venu e over any dispute,
action or suit arising therefrom shall be in any court of appropriate subject matter
jurisdiction located in Tompkins County in the State of New York or in the federal district
court for the Northern District of New York, and the parties shall 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.
§ 152-35. PERFORMANCE BOND AND CONSTRUCTION BOND.
A. Performance Bond. Within twenty (20) 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 performance bond in amounts specified in the Franchise to guarantee the faithful
performance of the Grantee of its obligations as they pertain to the Public Right-of-Way.
Failure to timely obtain, file, and maintain said bond shall constitute a material violation
within the meaning of this Article. Such bond must be issued by a surety and be in a
form acceptable to the City.
B. Construction Bond. Prior to construction, upgrade or rebuild of the
Telecommunications System, the Grantee shall obtain and maintain during the
construction, upgrade or rebuild, at its cost and expense, and file with the City, a
construction bond in amounts specified in the Franchise to guarantee the faithful
performance of the Grantee of its obligations related to construction in the Public Right-
of-Way. The bond shall be maintained throughout the period that the Franchisee
performs the construction, upgrade or rebuild, and for such longer period as necessarily
required for the Franchisee to correct any deficiencies, which deficiencies shall be
identified to the Franchisee by the City within ninety (90) days following the
Franchisee’s written Notice of completion to the City. Failure to timely obtain, file, and
maintain said bond shall constitute a material violation within the meaning of this Article.
Such bond must be issued by a surety and be in a form acceptable to the City.
C. Conditions. The performance and construction bonds shall be issued by a
surety licensed to do business in New York and shall provide the following conditions.
There shall be recoverable by the City from the principal and surety, jointly and
severally, any and all liquidated damages 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 Article 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 provision of Telecommunication
Services or the construction, operation, maintenance or repair of the
Telecommunications System. Such losses, costs and expenses shall include but not be
limited to attorney’s fees and other associated expenses.
D. Reduction of Bond. Upon written application by the Grantee, the City
may, at its sole option, permit the amount of the bonds to be reduced or waive the
requirements for a performance or construction bond. Reductions granted or denied
upon application by the Grantee shall be without prejudice to the Grantee’s subsequent
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applications or to the City’s right, at its sole discretion, to require the restoration of the
full bond at any time thereafter. However, no application shall be made by the Grantee
within one (1) year of any prior application made by the Grantee.
E. Consolidation. The City, at its sole option, may permit consolidation of the
construction bond with the performance bond.
F. Use of Performance Bond and Construction Bond. Prior to drawing upon
the construction bond or the performance bond for the purposes described in this
Article, the City shall notify the Grantee in writing that payment is due and the Grantee
shall have ten (10) days from the receipt of such written Notice to make a full and
complete payment. If the Grantee does not make the payment within ten (10) days, the
City may withdraw the amount thereof, with interest, from the construction bond or the
performance bond.
G. Notification. Within three (3) days of a withdrawal from the construction
bond or performance bond, the City shall send to the Grantee, by certified mail, return
receipt requested, written notification of the amount, date and purpose of such
withdrawal.
H. Replenishment of Construction Bond and Performance Bond . No later
than thirty (30) days after the City mails to the Grantee by certified mail notification of a
withdrawal pursuant to Subsections F. and G. above, the Grantee shall replenish the
construction bond and/or performance bond in an amount equal to the amount so
withdrawn. Failure to make timely replenishment of such amount to the construction
bond and/or performance bond shall constitute a material violation of this Article.
I. Non-Renewal, Alteration, or Cancellation of Construction Bond or
Performance Bond . The performance bond and construction bond required herein
shall be in a form satisfactory to the City and shall require thirty (30) days written notice
to the City of any non-renewal, alteration or cancellation. The Grantee shall, in the
event of any such non-renewal, alteration or cancellation notice, obtain, pay all
premiums for, and file with the City, written evidence of the issuance of replacement
bonds or policies within thirty (30) days following receipt by the City or the Grantee of
any such notice.
J. Inflation. To offset the effects of inflation, the amounts of the bond and
construction bond provided for herein are subject to reasonable increases at the end of
every three (3) year period of the Franchise, applicable to the next three (3) year period,
at the sole discretion of the City. Inflation compensation shall be computed by the City in
accordance with the regional consumer price index.
K. City Rights. The rights reserved to the City with respect to the
performance bond or construction bond are in addition to all other rights of the City,
whether reserved by this Article, the Franchise or authorized by law, and no action,
proceeding or exercise of a right with respect to such a bond or construction bond shall
affect any other right the City may have.
L. Right to Require Replacement of Bonds or Insurance. If the City becomes
aware that the financial condition of any bonding or insurance company issuing a
performance or construction bond or insurance policy to the Grantee as required herein
was poor or unstable at the time of issuance, and the City would not have approved the
surety of the bond or the City would not have found the form of the bond or the
insurance policies satisfactory if such conditions had been known by the City at the
time, or if the financial condition of such bonding or insurance company materially
changes to the extent that such approvals would not have been made had such
conditions existed at the time of issuance, the City may, at any time, require that any
such bond or insurance policy be replaced with such other bond or insurance policy
consistent with the requirements set forth in this Article.
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M. Employee Bonds. All employees of the Grantee who enter subscribers’
homes in the course of their employment shall be bonded in an appropriate amount for
the term of the Franchise.
§ 152-36. LIABILITY, INSURANCE AND INDEMNIFICATION.
A. Terms of Liability and Insurance.
1. Prior to commencement of construction in the Public Right-of-Way
but in any event no 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 the types of insurance required under this
Article. Any deductibles or self-insured retention must be disclosed on the Certificates
of Insurance. Failure to furnish said certificates of insurance in a timely manner shall
constitute a violation of this Article.
2. Any insurance policy obtained by the Grantee in compliance with
this Article shall be filed and maintained with the City Clerk during the term of the
Franchise.
3. None of the provisions of this Article or any insurance policy limits
required herein, nor any damages recovered by the City hereunder shall be construed
to excuse the faithful performance by or shall limit the liability of the Grantee to the City
or any other Person for damages under this Article or any Franchise.
4. The insurance policies required by this Article and the Franchise
shall require at least thirty (30) days’ advance written notice to the City of reduction in
coverage, cancellation, or non-renewal . It shall be the responsibility of the Grantee to
ensure that the City has been notified of any change, cancellation, or non-renewal.
5. All insurance policies provided under the provisions of this Article or
the Franchise shall be written by companies authorized to do business in New York
State and rated at least B+: IX in the current Best’s Insurance Guide.
6. The Grantee shall name the City as an additional named insured
for all insurance policies written under the provisions of this Article or the Franchise.
7. 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-year period of the Franchise,
applicable to the next three-year period, upon the determination of the City. Inflation
compensation shall be computed by the City in accordance with the regional Consumer
Price Index.
8. All deductibles shall be deductibles that are standard to the
Grantee and shall be pre-approved by the City, and such deductibles may not be
increased without the prior written consent of the City.
9. When umbrella or excess coverage is in effect, it must follow the
form of the underlying coverage.
10. The Grantee may self-insure only upon written consent from the
City and conditions consistent with this Article that are acceptable to the City.
11. Claims-made policies are not acceptable for any insurance policy
provided under the provisions of this Article or the Franchise.
B. General Liability and Automotive Liability Insurance.
1. The Grantee shall obtain, and maintain at all times during the term
of the Franchise, comprehensive general, automotive liability and owners and
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contractors liability insurance protecting the Grantee in an amount of not less than Five
Million ($5,000,000) Dollars per occurrence, including bodily injury, death, and property
damage, as a combined single limit or equivalent. Automotive liability insurance shall
cover owned, non-owned, and rented vehicles.
2. 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.
C. Workers’ Compensation and Disability Insurance. The Grantee shall
obtain and, by its acceptance of any Franchise granted hereunder, specifically agrees
that it will maintain throughout the term of the Franchise, workers’ compensation and
disability insurance, valid in the State, in the minimum amount of the statutory limit for
workers’ compensation and disability insurance. The Grantee must provide the City
written proof before beginning construction of its Telecommunications System in the
Public Right-of-Way, and in any event within sixty (60) days after the effective date of
any Franchise, that the Grantee provides the levels of workers’ compensation and
disability coverage required by the State of New York or that it is not required to provide
such coverage.
D. Insurance for Contractor and Subcontractors. The Grantee shall provide
coverage for any contractor or subcontractor involved in the construction, installation,
maintenance or operation of its Telecommunications System in the Public Right-of-Way
by either obtaining the necessary endorsements to its insurance policies or requiring
such contractor or subcontractor to obtain appropriate insurance coverage consistent
with and complying with all requirements of this Article and appropriate to the extent of
its involvement in the construction, installation, maintenance or operation of the
Grantee’s Telecommunications System.
E. Payment. The Grantee shall be solely responsible for payment of all
premiums for insurance required by the Franchise or this Article and shall be solely
responsible for the payment of any deductible and/or retention to which such policies
are subject.
F. Indemnification.
1. The Franchise shall include the following hold-harmless clause:
The Grantee shall agree to indemnify, defend (with counsel acceptable to the
City) and hold harmless the City, its officers, employees, elected officials, agents,
boards, consultants and independent contractors, commissions and any successors to
City’s interest, from and against any and all claims, demands, losses, damages
(including personal injury resulting in death), liabilities (including those arising from
releases of Hazardous Materials), suits, fines, penalties, charges, administrative and
judicial proceedings and orders, judgments and all reasonable costs and expenses
incurred in connection therewith, including without limitation reasonable attorney’s fees
and costs of defense (collectively, the “Losses”) arising from acts or omissions of the
Grantee or its successors, agents, contractors or employees in connection with its
Telecommunications System and/or Telecommunications Services, or otherwise arising
out of or related to the Franchise, except to the extent any Losses arise from the willful
misconduct or gross negligence of the City, its officers, employees, elected officials,
agents, boards, consultants and independent contractors, commissions, and any
successors to the City’s interests. The foregoing includes, but is not limited to, the
following liabilities:
(a) To persons or property arising out of or through the acts or
omissions of the Grantee, its successors, servants, agents, contractors or employees.
(b) Arising out of any claim for invasion of the right of privacy by the
Grantee, its successors, servants, agents, contractors or employees, for defamation of
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98
any Person or the violation or infringement of any copyright, trademark, trade name,
service mark or patent or of any other right of any Person.
(c) Arising out of the Grantee’s failure to comply with the provisions of
any Federal, State or local statute, ordinance or regulation applicable to the Grantee in
its business hereunder.
2. Damages and penalties shall include but not be limited to damages
arising out of copyright infringement and all other damages arising out of the
construction, installation, operation or maintenance of Grantee’s Telecommunications
System, and Grantee’s provision of Telecommunications Services, whether or not any
such act or omission is authorized, allowed or prohibited by this Article or the Franchise
granted hereunder. Expenses shall include all incidental expenses including attorney
fees and shall also include the reasonable value of any services rendered by the office
of the City Attorney.
3. The foregoing indemnity is conditioned upon the following: The City
shall give the Grantee Notice of the making of any claim or the commencement of any
action, suit or other proceeding against the City covered by the provisions of this Article.
Nothing herein shall be deemed to prevent the City from cooperating with the Grantee
and participating in the defense of any litigation by its own counsel at its own cost and
expense.
§ 152-37. DESIGN AND CONSTRUCTION PROVISIONS.
This Part shall be applicable to the Telecommunications Systems in the Public
Right-of-Way and providers franchised hereunder and to Cable Television Systems,
Open Video Systems, and Cable Service providers franchised under the Ithaca Cable
Television Regulatory Ordinance, Chapter 152, Sections 152-1 et seq., as amended.
A. PERMITS, CONDUIT, POLE USE AND APPROVALS .
1. Permits. Prior to construction or alteration of aerial or underground
construction in the Public Right-of-Way, the Grantee shall in each case: file plans with
the appropriate City agencies; complete use agreements with the utility companies if
necessary; obtain all construction, tree trimming, and other required permits; and pay all
processing, field marking, engineering, and inspection fees associated with such
permits.
2. Use of Public Right-of-Way. The Grantee shall make application to
the City for street permits for new construction, upgrades, or rebuilding of all work to be
performed in the City’s Public Right-of-Way in th e form and manner prescribed by the
City. No construction shall be commenced prior to the grant of the street permit
therefor. If Grantee is unable to provide Telecommunications Services or Cable
Services, as relevant to the Grantee, to a customer by locating its Facilities within the
Public Right-of-Way, then Grantee may apply to the City’s Superintendent of Public
Works to use streets, roads and sidewalks located within the Excluded Areas, which
use shall be at the City’s sole discretion, provided, however, that the Superintendent of
Public Works shall not withhold approval to Grantee if he or she has authorized any
other provider of Telecommunications or Cable Services to install new Facilities along
the same portion of the Excluded Area after the effective date of this Article. Any such
approval shall be subject to the same terms and conditions as the Superintendent of
Public Works may impose on any other provider of Telecommunications and Cable
Services for use of such Excluded Areas.
3. Terms and Conditions of a Street Permit. When a street permit is
issued by the City, the Grantee shall begin actual physical plant construction within sixty
(60) days from the date of issuance of said permit.
Said construction shall be completed within the time period specified in the
street permit. If said construction is not completed within said specified time period, or
should construction not be commenced on the date specified by said permit, then
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99
absent events of Force Majeure, the permit shall be deemed null, void, and of no further
force and effect.
Franchisees may request construction extensions from the City, in writing,
for good cause, and the City, following review of such request, shall either allow such
extensions or deny same promptly after receipt of such request(s).
Street permits are not required for routine or emergency repairs and
maintenance of the Facilities, which may include, but not be limited to, the replacement
in kind of existing plant-related Facilities. All work shall be in accordance with New York
State Statutes and the City of Ithaca Code.
4. Easements. Any easements over or under Public Property shall be
separately negotiated with the City and may be subject to terms and conditions that are
different from those set forth in this Article or the Franchise.
5. Easement Usage. In using easements granted by the City,
Grantee shall comply with all Federal, State, and local laws and regulations governing
the construction, installation, operation, and maintenance of the Facilities. Without
limitation, Grantee shall ensure that:
(a) The safety, functioning and appearance of the property and
the convenience and the safety of other persons are not adversely affected by the
installation or construction of Facilities.
(b) The cost of the installation, construction, operation, or
removal of such Facilities are borne by Grantee.
(c) The City is reasonably compensated by Grantee for any
damages caused by the installation, construction, operation, or removal of such
Facilities by Grantee.
6. Other Permits and Franchises. The granting of a Franchise under
this Article does not take the place of any other Franchise or permit which might be
normally required by law.
7. Approval for Poles.
(a) No poles shall be erected by the Grantee in the Public Right-
of-Way without prior written approval of the City with regard to location, height, types
and any other pertinent aspect. In areas where utilities are placed aerially, the Grantee
shall use existing poles unless the City permit authorizes the Grantee to install new
poles.
(b) Where poles already exist in the Public Right-of-Way and
are available for use by the Grantee, but Grantee 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 or other provider serving the City
desires to make use of the poles or other wire-holding structures of the Grantee located
in the Public Right-of-Way 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. Joint Use Agreements. In order to minimize the number of
Facilities in the Public Right-of-Way, the Grantee shall seek to conclude joint use
agreements with utilities and other owners of Facilities on the Public Right-of-Way so as
to utilize existing poles, conduits and other Facilities whenever possible. No location of
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conduit or wiring holding structure of the Grantee’s shall be a vested interest. Joint use
of poles shall be in accordance with New York State Statutes and the City of Ithaca
Code.
9. Aerial Construction. Grantee’s Aerial Facilities in the Public Right-
of-Way shall be marked for identification. Any aboveground Facilities in the Public
Right-of-Way are limited to cables containing fiber optic strands and related
appurtenances not to exceed one (1) 8 inch x 8 inch x 18 inch appurtenance per pole
unless Grantee obtains prior written approval to install larger or a greater number of
appurtenances aboveground from the Superintendent of Public Works.
10. Subsurface Installation Marking. Grantee shall be a member of the
Underground Facilities Protective Organization, or the existing regional “One Call”
notification center for subsurface installations, for the life of the Facilities. Grantee, in
addition to identifying underground construction with warning tape as required by other
provisions of this Article, shall field mark, at its sole expense, the locations of its
underground Facilities in the Public Right-of-Way in accordance with the
recommendations of the “One Call” organization and the requirements of all applicable
laws.
11. Pedestals and Equipment. In any case where enclosures housing
mini-hubs, switching, or other such equipment are to be utilized along streets and
sidewalks, such equipment must be vaulted or otherwise contained in an underground
enclosure so as to conform to then existing City and utility equipment installation
requirements. No pedestal or other equipment shall occupy more than 8" x 8" x 24" of
the Public Right-of-Way unless the Grantee obtains prior written approval to install
larger equipment from the Superintendent of Public Works. All equipment shall be
shown in plan and cross-section on the design plans for permits. Permits from the City
shall be required for the location of any pedestal or other equipment in a Public Right-of-
Way.
12. Approval for Conduit. No conduit shall be installed by the Grantee
in a Public Right-of-Way without prior approval of the City with regard to location and
any other pertinent aspect.
13. Use of Existing Conduit. Where conduit already exists for use in a
Public Right-of-Way and is available for use by the Grantee, but it does not make
arrangements for such use, the City may require the Grantee to use such conduit if it
determines that the public convenience would be enhanced thereby and the terms of
the use available to the Grantee are reasonable.
14. Utility Crowding. In areas of the City where the City finds that the
Public Right-of-Way will not accommodate further underground Facilities, the City may
require that the Grantee’s conduits be oversized, duplicated, or placed in multiple
configurations, and Grantee shall share the use of its underground conduits and
multiple configurations at such locations at reasonable rates. Such rates shall be
determined by City if Grantee and third parties cannot agree on same.
B. USE OF PUBLIC RIGHTS-OF-WAY.
1. No Priority. This Article does not establish any priority for the use
of the Public Right-of-Way by Grantee. In the event of any dispute as to the priority of
use of the Public Right-of-Way, the first priority shall be to the public generally, the
second priority to the City, the third priority to the State of New York and its political
subdivisions in the performance of their various functions, and thereafter, as between
Grantees and other permit holders, as determined by applicable laws.
2. Underground Installation. All installations shall be underground in
those areas of the City where all public utilities, Telecommunications Providers, and
cable television companies are underground at the time of installation. In all other
areas, Grantee may install its service above-ground, provided that at such time as those
Facilities are required to be placed underground by the City or are placed underground,
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the Grantee shall likewise place its services underground without cost to the City. The
Grantee may, however, recover the cost in its charges to customers per applicable
Federal regulation and if allowed by law or regulation, may share in any amounts given
to utilities for such construction.
3. New Housing and Subdivisions. In cases of new construction or
property development where utilities are to be placed underground in common trenches,
the developer or property owner shall, upon request by the Grantee, give the Grantee
reasonable notice (not less than 72 hours) of the particular date on which construction
meetings are held to set and manage work schedules and the date on which open
trenching will be available for the Grantee’s installation of conduit, pedestals and/or
vaults, and laterals to be provided at the Grantee’s expense. Appropriate sharing of
trenching costs may be required by the developer or property owner.
4. Interference with Persons, Improvements, Public and Private
Property and Utilities. The Grantee’s Facilities, including poles, lines, equipment and all
appurtenances, shall be located, erected and maintained so that such Facilities shall:
(a) Not endanger or interfere with the health, safety or lives of
persons.
(b) Not interfere with any public utilities or improvements the
City or State may deem proper to make.
(c) Not interfere with the free and proper use of the Public Right-
of-Way, public easements, or Public Property, except to the minimum extent possible
during actual construction or repair.
5. Cooperation with Building Movers. The Grantee shall, on the
request of any person holding a building moving permit issued by the City, temporarily
remove, raise or lower its wire in the Public Right-of-Way to permit the moving of
buildings. The expense of such temporary removal, raising or lowering of wires shall be
paid by the person requesting the same, and the Grantee shall have the authority to
require such payment in advance. The Grantee shall be given not less than fifteen (15)
working days’ advance Notice to arrange for such temporary wire changes.
6. Use of and Compensation for City Property. If the right is granted,
by lease, license or other manner, to use and occupy Public Property, in addition to the
Public Right-of-Way, for the installation of Telecommunications or Cable Facilities, the
terms and conditions of such use and the compensation to be paid or provided by
Grantee shall be fixed by the City and may differ from the provisions of this Article or the
Franchise.
7. Employee Identification. Grantee shall provide a standard
identification document to those of its employees and the employees of its contractors
and subcontractors that will be in contact with the public. Such documents shall include
a telephone number that can be used to verify that the person is an employee of
Grantee or its contractor or subcontractor. In addition, Grantee shall use its best efforts
to clearly identify all field personnel, vehicles, and other major equipment that are
operating under the authority of the Grantee.
8. Tree Trimming. Subject to the prior approval of the Superintendent
of Public Works, Grantee shall have the authority, provided it abides by any local laws,
ordinances, or regulations, to trim any trees upon or overhanging the Public Right-of-
Way of the City to prevent the branches of such trees from coming in contact with the
wires or cables of Grantee, except that at the option of the City, such tree trimming may
be done by it, or under its supervision and direction, at the reasonable expense and
cost of Grantee. Prior to any tree trimming, Grantee shall obtain a tree trimming permit
which shall describe in detail the area in which tree trimming will take place. All tree
trimming shall be in accordance with the ANSI A-300 Tree Care Performance
Standards, and shall be performed under the supervision of a certified arborist although
a certified arborist is not required to be on site. All clean up shall be to the reasonable
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satisfaction of the City. The City reserves the right to impose additional reasonable
conditions to all tree trimming work, provided that the City imposes any such additional
requirements on any and all persons, governmental and non-governmental entities that
are involved in telecommunications or tree-trimming activities in the City. All said tree
trimming performed by Grantee or by the City or under Grantee’s supervision or
direction shall be accomplished in the least intrusive manner and in a manner that is
designed by Grantee to be aesthetically pleasing.
9. No Adverse Impact Upon Other Authorized Users. Except as
permitted by applicable law or the Franchise, Grantee shall not damage, or impair the
use of, any Public Right-of-Way located in the City or any other authorized facilities
therein, including without limitation, streets, sidewalks, sanitary sewers, storm drains,
water mains, gas mains, poles, overhead or underground wires, innerduct, or conduits,
without the prior written approval of the City and any other owner(s) of the affected
property.
10. Removal of Obsolete Facilities/Cooperation. When Grantee opens
a trench, accesses a conduit or boring, or is working on aerial locations, it shall remove
all of its own Facilities in the Public Right-of-Way which are no longer in use or which
Grantee, in its sole discretion, deems obsolete, from such locations.
(a) When Grantee opens a trench or access to borings in the
Public Right-of-Way, it shall notify all other Grantees and permittees who have facilities
in such locations, in advance of such work, so that they may remove their obsolete
facilities from such locations. Grantee shall cooperate with such persons in such
activities.
(b) When Grantee receives notification from another Grantee or
permittee that it is opening a trench or access to borings in the Public Right-of-Way,
Grantee shall remove all of its obsolete Facilities from such locations while they are
open.
11. Removal. Grantee shall modify, temporarily disconnect, remove or
relocate the Facilities it installs under the Franchise, without cost or expense to City, if
such removal or relocation is at the request of the City, and is made necessary by (i)
any change of grade, alignment or width of any street; (ii) any changes to the City’s
water system, storm sewers or sanitary sewers; (iii) construction, maintenance or
operation of any other City-owned or leased underground or aboveground facilities; (iv)
traffic conditions or public safety, and/or (v) such other municipal improvements as
deemed in the public interest by the City. Said modification, disconnection, removal or
relocation shall be completed within ninety (90) days following written notification by
City, or such shorter period as the City may reasonably direct in the event of an
emergency. In the event Grantee fails to modify, disconnect, remove or relocate its
Facilities within such period, City may cause the same to be done at the sole expense
of Grantee. The City will cooperate and issue, on an expedited basis, all permits
necessary to enable Grantee to modify, disconnect, remove or relocate its Facilities
without disruption to its services.
12. Restoration of Property. Grantee shall restore at its sole cost and
expense any portion of the Public Right-of-Way, Public Property or public utilities or
structures that is in any way disturbed, damaged or in any way injured by the
construction, operation, presence, maintenance or repair, removal or relocation of the
Facilities to as good or better condition than existed before such disturbance. The
restoration shall be completed within ten (10) working days of such disturbance, or
within such additional time as specified by the City. In the event that Grantee and its
contractors and subcontractors fail to make such repair in the Public Right-of-Way
within the required time, City shall be entitled to make repairs or have such repairs
made and Grantee shall pay the costs of City for such repair. If Grantee fails to pay
such costs, the City may foreclose on performance or construction bonds or invoke
other appropriate sanctions provided for in this Chapter.
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13. Relocation of Facilities. Should the Grantee seek to remove or
relocate its Facilities in the Public Right-of-Way, it shall give City not less than fifteen
(15) day’s prior written Notice of its intent to do so. Before proceeding with removal or
relocation work, the Grantee shall obtain such additional permits as may be required by
the City. The Grantee shall not remove or relocate any Facilities used or owned by the
City without the City’s prior written approval. The Grantee shall, within ten (10) working
days after the removal or relocation of its Facilities, or such additional time as may be
specified by the City, at either its own cost or the cost of third persons, satisfactorily
restore all areas to at least as good a condition as existed prior to the original
construction of the Facilities.
14. Removal of Facilities Upon Franchise Termination. Upon
termination of the Franchise by the passage of time, Grantee’s surrender of the
Franchise, or otherwise, and unless the Grantee transfers the Facilities to a subsequent
Grantee approved by the Common Council, the Grantee shall at its own expense
remove its Facilities, including supporting structures, poles, transmission and
distribution systems and all other appurtenances from the Public Right-of-Way and shall
satisfactorily restore all areas to at least as good a condition as existed prior to the
original construction of the Facilities. 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, and restoration shall be completed within ten (10)
working days after removal is completed or within such additional time as may be
granted by the City. At that time, the City may deem any property not removed as
having been abandoned. Such property may then be removed at the option of the City
at the Grantee’s expense, less any recoverable salvage value, or the City may d eclare
the ownership of such facilities to have been abandoned or forfeited to the City.
Notwithstanding the foregoing, the City in its sole discretion may allow the Grantee to
leave in place the Facilities in the Public Right-of-Way, and Grantee shall not remove or
relocate any Facilities used or owned by the City without the City’s prior written
approval. The liability, indemnity and insurance requirements, and the bonds required
herein and by the Franchise, shall continue in full force and effect during the period of
system operation and removal and thereafter as applicable.
15. Discontinuing Use of Facilities During Operations. Whenever
Grantee intends to continue operations but wishes to discontinue using any Facility
within the Public Right-of-Way, Grantee shall submit for the City’s approval at least thirty
(30) days in advance, a complete description of the Facility and the date on which the
Grantee intends to discontinue using the Facility. Grantee may remove the Facility or
request that the City permit it to remain in place. Notwithstanding the Grantee’s request
that any such Facility remain in place, the City may require the Grantee to remove the
Facility from the Public Right-of-Way or to modify the Facility to protect the public health
and safety or otherwise serve the public interest. The City may require the Grantee to
perform a combination of modification and removal of the Facility. Grantee shall
complete such removal or modification, and shall satisfactorily restore all areas to at
least as good a condition as existed prior to the original construction of the facilities,
within ninety (90) days of Notice being received by the City regarding the Grantee’s
discontinuance of the use of Facilities, unless a longer schedule is set by the City. Until
such time as Grantee removes or modifies the Facility as directed by the City, or until
the rights to and responsibility for the Facility are accepted by another Person having
authority to construct and maintain such Facility, Grantee shall be responsible for all
necessary repairs and relocations of the Facility, as well as maintenance of the Public
Right-of-Way, in the same manner and degree as if the Facility were in active use.
Grantee shall retain all liability for such Facility, and Grantee shall not be relieved of any
obligation to the City regarding any existing breach or unfulfilled provision of this Article
and the Franchise.
In the event the Grantee fails or refuses to remove its Facilities or satisfactorily restore
all areas to at least as good a condition as existed prior to the original construction of
the Facilities, the City, at its option, may perform such work and collect the cost thereof
from the Grantee. No surety on any bond shall be discharged until the City has certified
to the Grantee in writing that the Facilities have been dismantled, removed, and all other
property restored to the satisfaction of the City.
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16. Vacation. If a Public Right-of-Way is vacated, discontinued, or
closed, all rights of Grantee under this Article to use same shall terminate and Grantee
at its expense shall immediately remove the Facilities from such Public Right-of-Way
unless Grantee obtains any necessary easements from the affected property owners to
use the former Public Right-of-Way.
17. Encumbrance. The Grantee shall not open, distribute or encumber,
at any one time, any more Public Right-of-Way than may, in the opinion of the City, be
necessary to enable the Grantee to economically install, operate or repair its Facilities;
nor shall the Grantee permit any Public Right-of-Way to remain open, disturbed or
encumbered for a longer period of time than shall, in the opinion of the City, be
necessary.
18. Protect Structures. In connection with the construction, operation,
maintenance, repair, upgrade, relocation or removal of the Grantee’s Facilities in the
Public Right-of-Way, the Grantee shall, at its own cost and expense, protect any and all
existing structures belonging to the City and all Landmarks. The Grantee shall obtain
the prior written approval of the City before altering any water main, sewerage or
drainage system, or any other municipal structure in the Public Right-of-Way required
because of the presence of the Facilities in the Public Right-of-Way. Any such
alteration shall be made by the Grantee, at its sole cost and expense, and in any
reasonable manner prescribed by the City. Grantee shall immediately notify the City if
any City property or City utilities are cut or damaged by the Grantee or its
subcontractors.
19. No Obstruction. In connection with the construction, operation,
maintenance, repair, upgrade, relocation or removal of the Facilities, the Grantee shall
not obstruct the Public Right-of-Way, railways, passenger travel, river or lake
navigation, or other traffic to, from, or within the Franchise Area without the prior
consent of the appropriate authorities.
20. Safety Precautions. The Grantee shall, at its own cost and
expense, undertake all necessary and appropriate efforts to prevent accidents at its
work sites, including the placing and maintenance of proper guards, fences, barricades,
personnel, and suitable and sufficient lighting.
21. Acquisition of Public Right-of-Way. In acquiring or widening Public
Right-of-Way, the City shall determine the minimum Public Right-of-Way necessary to
accommodate paved streets, pedestrian walkways, landscaping, traffic signals,
drainage, water and sewer lines and other governmental facilities.
22. Identification. Grantee shall identify its Facilities and cable drops in
the Public Right-of-Way (by color code, stamping, engraving, tags, stickers, or other
appropriate method selected by Grantee) so as to distinguish Grantee’s cables from
that of all other cable and telecommunications operators, utilities, and service providers
in the authorized area.
23. Marking of Underground Construction. All underground
construction in the Public Right-of-Way shall be marked for identification with warning
tapes consistent with industry standards. In all events, the tape shall be the type
specifically manufactured for marking and locating underground utilities. Tape color
shall be a bright color and shall bear a continuous printed inscription stating fiber cable,
and the Grantee shall ensure that cable is buried at the appropriate depth as consistent
with industry and City standards. All new manholes and handholes, and existing
handholes and manholes that involve new work must have all lines in the holes labeled
with the Grantee’s identification as well as all manhole and handhole tops.
24. Noncomplying Work. Upon order of the City, all work which does
not comply with permits, the approved plans and specifications for the work, or the
requirements of this Article, shall be removed.
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25. Hazardous Materials. Grantee shall comply with all applicable
State and Federal laws, statutes, regulations and orders concerning Hazardous
Materials relating to Grantee’s Facilities in the Public Right-of-Way.
26. Emergency Removal of Plant. If at any time, in case of fire or
disaster in the City, it shall become necessary in the reasonable judgment of the City to
cut or move any of the Grantee’s Facilities, the City shall have the right to do so at the
sole cost and expense of the Grantee. The Grantee shall bear all costs of reinstallation,
repair, and other costs resulting from or arising out of the emergency cutting or removal
of the Facilities.
C. CONSTRUCTION AND TECHNICAL STANDARDS.
1. Compliance with Construction and Technical Standards. The
Grantee shall construct, rebuild, install, operate and maintain its Facilities in the Public
Right-of-Way in a manner consistent with all applicable laws, ordinances, design,
construction, safety and performance standards or guidelines, governmental
requirements, regulations, and technical specifications provided for in this Article, other
local ordinances, the Franchise, and other applicable Federal and state laws and
regulations.
2. Coordination of Construction Activities. All Grantees are required to
cooperate with the City and with each other regarding their construction activities in the
Public Right-of-Way. Each Grantee shall meet with the City, other Grantees and users
of the Public Right-of-Way annually or as determined by the City to schedule and
coordinate construction in the Public Right-of-Way.
3. Contractor Qualifications. Any contractor proposed by a Grantee to
perform construction, installation, operation, maintenance, or repair of Facilities in the
Public Right-of-Way must be properly licensed under the laws of the State and all local
ordinances.
4. City Maps. The City does not guarantee the accuracy of any maps
showing the horizontal or vertical location of existing substructures. In the Public Right-
of-Way, where necessary, the Grantee shall verify the location by excavation.
5. Quality of Construction. Construction, upgrade, rebuild, installation,
operation, maintenance, relocation and removal of the Facilities in the Public Right-of-
Way shall be performed in an orderly and workmanlike manner, in accordance with then
current technological standards and in a safe, thorough and reliable manner using
materials of good and durable quality. If, at any time, a reasonable determination is
made by the City or any other agency or authority of competent jurisdiction that any part
of the Facilities, including, without limitation, any means used to distribute signals over
or within the Facilities, is harmful to the health or safety of any person, then the Grantee
shall, at its own cost and expense, promptly correct all such conditions.
6. Parallel Construction and Removal. All cables and wires in the
Public Right-of-Way shall be installed, where possible, parallel with electric and
telephone lines. Multiple cable configurations shall be arranged in parallel and bundled
with due respect for aesthetic, safety and engineering considerations, and all applicable
codes. All aerial cables shall be removed if not in use.
7. Conduit and Innerduct. All cable passing under the roadway shall
be installed in conduit. Underground cable in the Public Right-of-Way will be sheathed
in conduit or innerduct.
8. Construction Standards. The construction, installation, operation,
maintenance, and/or removal of the Facilities in the Public Right-of-Way shall meet all of
the following safety, construction, and technical specifications and codes and standards,
as applicable:
Occupational Safety and Health Administration Regulations (OSHA)
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National Electrical Code
National Electrical Safety Code (NESC)
Appropriate Manual of Construction Procedures and Standards as
determined by the City
All Federal, State and Municipal Construction Requirements
All building, subdivision, and zoning codes or regulations, and all land use
restrictions as the same exist or may be amended hereafter
Any and all State and Federal laws or regulations regarding the
transportation or disposal of Hazardous Materials.
9. Good Engineering Practices. All plant and equipment in the Public
Right-of-Way, including but not limited to the antenna sites, towers, headend and
distribution systems, subscriber terminals, structures, poles, wire, cable, coaxial cable,
fixtures and appurtenances shall be installed, located, erected, constructed,
reconstructed, replaced, removed, repaired, maintained and operated in accordance
with good engineering practices, performed by experienced maintenance and
construction personnel so as not to interfere with or unnecessarily hinder or obstruct
pedestrian or vehicular traffic or endanger the public safety.
In addition, the Grantee shall exercise reasonable care in the performance
of work authorized by this Article so as to avoid damage to the facilities of public utilities
and shall be liable for all such damage to the extent required by law. In the event of
such damage, the Grantee shall report same immediately to the affected utility and shall
timely reimburse said utility for all reasonable costs of repair of said damage. The
Grantee shall be responsible for contacting all affected utilities, and, in addition, the
Underground Notification Center Liaison for Excavators (UNCLE), to arrange for the
location of the facilities of public utilities prior to commencing construction, installation,
repair and similar work.
10. Public Safety Requirements. The Grantee shall at all times employ
due care and shall install and maintain in use commonly accepted methods and devices
for preventing failures, accidents, or conditions which might cause damage, injury or
nuisance to the public.
11. Maintenance and Workmanship.
(a) Grantee shall provide and use any equipment and
appliances necessary to control and carry Grantee ’s signals so as to prevent injury to
the City’s property. Grantee, at its own expense, shall repair, renew, change and
improve its Facilities from time to time as may be necessary to accomplish this purpose.
(b) Grantee shall not construct its Facilities in any manner that
requires any subscriber to install any cable, wire, conduits or other Facilities, under or
over a street.
12. Weather. No underground installation or other work activities in the
Public Right-of-Way shall be initiated when weather conditions prohibit proper
restoration of disturbed areas in a timely manner. The City may waive the preceding
requirement on a case-by-case basis, with conditions appropriate to the circumstances.
13. Traffic Safety. Grantee shall comply with all local and State traffic
requirements and Uniform Traffic Safety Code regulations. Barricades or other barriers
such as signs, traffic cones, red flags, and warning lights, shall be utilized when
necessary at all work sites frequented by the public until an area is cleared for normal
public use. Local law enforcement shall be contacted, when necessary, to direct traffic.
Before leaving a job site each day, Grantee’s employees and contractors shall be
required to pick up all scrap materials and ensure that any construction materials and
tools are properly stored and covered and that derricks, planks and ladders are
removed from or piled at the roadside in such a manner as not to intrude upon traffic
safety.
14. Work Within the Public Right-of-Way. The work in any part of a
Public Right-of-Way must be approved by the City, and the Grantee must obtain street
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occupancy or street closing permits or other permits, as appropriate, and comply with all
other applicable City requirements. During repairs or improvements, traffic on streets
must be maintained in accordance with the City’s local regulation and policy and State
requirements. Where full closing of the street is required, the request for approval must
be submitted to the City at least ten (10) days in advance. Where emergency closings
are necessary, the City is to be notified as soon as possible. All closings are to be in
accordance with the City’s local regulation and policy and State requirements.
15. Right of Inspection. The Superintendent of Public Works or his/her
designee shall have the right to inspect at any time the Facilities in the Public Right-of-
Way, and to make such tests as necessary to ensure compliance with the terms of this
Article, the Franchise, and other pertinent provisions of law. Grantee shall cooperate
fully with the City during all inspections, and shall provide access to all equipment,
records, and other materials and information necessary for such inspections. Except as
otherwise provided by this Article, the Franchise, law, regulation or other ordinance(s),
all inspections performed by the City shall be initially at the City’s sole cost and
expense. If the Grantee is found not to be in material compliance with the terms of this
Ordinance and all other applicable law, then the Grantee must reimburse the City for the
costs of such inspections. This reimbursement is not to be considered a part of the
Franchise Fee or Linear Foot Fee.
16. OSHA. All worker facilities, conditions, and procedures that are
used during construction, installation, operation, and maintenance of the Facilities in the
Public Right-of-Way shall comply with the standards of the Occupational Safety and
Health Administration and the State.
17. Sedimentary Soil Erosion. All construction in the Public Right-of-
Way shall be in accordance with State or local laws and regulation regarding soil
erosion. Grantee shall correct any violations or comply with any notices of violation in
accordance with local, State, and Federal law and regulation.
18. Construction and Installation Manual. Grantee shall submit to the
City a manual which sets forth the specifications, standards and procedures for
construction and installation of its Facilities in the Public Right-of-Way. Said manual
shall be consistent with the highest standards of the telecommunications and cable
television industries, as applicable, and shall, at a minimum, establish procedures to
ensure quality work and provide for the safety and protection of residents and property.
Said manual shall be incorporated in the Franchise. The Facilities in the Public Right-
of-Way shall be constructed in compliance with Grantee’s standard construction and
installation manual. At its sole cost and expense, Grantee shall promptly provide the
City with one copy of any updates or modifications to the construction and installation
manual prior to any new construction in the Public Right-of-Way, and Grantee shall
comply with such updated or modified construction specifications. Any such updates or
modifications shall comply with good engineering practices.
19. Construction Oversight . Grantee shall respond to citizen
complaints on a daily basis during any construction or repair to the Facilities in the
Public Right-of-Way. Grantee shall maintain a log of all citizen complaints, detailing the
date of the call, the complainant’s name, address and telephone number, the substance
of the complaint and steps taken or to be taken to resolve the complaint. The log shall
be available for inspection for two (2) years by the City upon request.
20. Emergency Notification. Grantee shall provide the City with a
twenty-four (24) hour emergency telephone number at which a named responsible adult
representative of Grantee (not voice mail or a recording) can be contacted in the event
of an emergency.
21. Notice of Construction to Residents. Grantee shall provide advance
notice to affected residents, appropriate to the circumstances, prior to entry whenever
desiring to work in the Public Right-of-Way abutting private property. By way of
example, Grantee shall provide at least two (2) days’ advance notice to affected
property owners (such as by door hanger) prior to construction or rebuild requiring work
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in the Public Right-of-Way abutting such private property. Work performed in an
emergency in the Public Right-of-Way to repair the Facilities is exempted from this
subsection.
22. As-Built Strand Maps Required . As each construction area is
completed, the Grantee shall provide the City Engineer with a full and complete set of
plans, showing the location of the Telecommunications or Cable System, as applicable,
in a format compatible with the City’s GIS system, showing the exact location of all
Telecommunication or Cable System headend, hubs and distribution plant installed or in
use in the Franchise Area. The Grantee’s as-built strand maps shall be updated every
six (6) months or when any major modifications or construction to the Facilities has
taken place, including Facility additions, deletions, and relocations.
D. FACILITIES CONSTRUCTION SCHEDULE AND REPORTING.
The Franchise shall specify the Grantee’s construction timetable. The timetable
shall be a monthly schedule.
1. Construction Notice. Throughout any period of new construction or
rebuild in the Public Right-of-Way, Grantee shall give the City written Notice a
reasonable time before the commencement of new construction or rebuild, but in no
event shall said Notice be given less than sixty (60) business days before such
commencement. Grantee shall give the City a construction schedule of all planned
activities and provide a monthly engineering construction and monitoring report.
2. Annual Construction Report Required. The Grantee shall file
annually during the term of its Franchise, on or before the anniversary date of the
issuance of its Franchise, an annual Grantee’s construction report, which shall certify all
completed construction and continued use of the Facilities in the Public Right-of-Way.
This report shall be in a format acceptable to the City.
E. EXTENSION OF SERVICE.
The Grantee may request City authorization to extend the Franchise Area within
the City and any areas annexed to the City under such extension provisions as provided
for in the Franchise.
152-38. REPORTS AND MISCELLANEOUS.
A. REPORTS REQUIRED.
The Grantee shall file the following reports with the City:
1. Facilities Report. An annual report setting forth the physical miles
of plant construction and plant in operation in the Public Right-of-Way during the fiscal
year shall be submitted to the City. Such report shall also contain any revisions to the
Facilities maps filed with the City.
2. Proof of Bonds and Insurance . Grantee shall submit to the City the
required performance and construction bonds, or certified copies thereof, and written
evidence of payment of required premiums, and all policies of insurance required by this
Article, or certified copies thereof, and written notice of payment of required premiums.
3. Financial Reports. The following financial reports for the Franchise
Area shall be submitted annually to the City ninety (90) days after the end of the
Grantee’s fiscal year:
(a) 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 ten
percent (10%) or more.
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(b) An annual and certified income statement from the
Franchise Area for the previous calendar year, including subscriber revenue from each
category of service.
(c) The Franchise Fee report that accompanies each quarterly
payment.
4. Additional Reports. The Grantee shall prepare and furnish to the
City at the times and in the form prescribed, such additional reports with respect to its
operation, affairs, transactions or property in or affecting the Public Right-of-Way, as
may be reasonably necessary and appropriate to the performance of any of the rights,
functions or duties of the City or Grantee in connection with this Article or the Franchise.
B. MISCELLANEOUS.
1. Conferences . The parties hereby agree to meet at reasonable
times to discuss any aspect of this Article. At all meetings, Grantee shall make
available personnel qualified for the issues to be discussed and such meetings shall be
at City’s offices unless otherwise agreed.
2. Governing Law. This Article shall be construed pursuant to the laws
of the State of New York.
3. Waiver Filings. Concurrent with any filing by Grantee for any
waivers, exceptions or declaratory rulings or other rulings with the same effect from the
FCC or any other Federal or State regulatory agency which may affect Facilities in the
Public Right-of-Way, Grantee shall provide City with copies of such filings.
C. CAPTIONS.
The captions to sections throughout this Article are intended solely to facilitate
reading and reference to the sections and provisions of this Article. Such captions shall
not affect the meaning or interpretation of this Article.
§ 152-39. SEVERABILITY .
If any section, sentence, paragraph, term or provision of this Article is determined
to be illegal, invalid or unconstitutional, by any court of applicable 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. If this
Article or any provision thereof shall be held to be inapplicable to any Person, property
or circumstances, such holding shall not affect its applicability to any other Person,
property or circumstances.
SECTION 2. EFFECTIVE DATE.
This Ordinance shall take effect immediately in accordance with law upon
publication of a notice as provided in the Ithaca City Charter.