City of Ithaca, NY
Tompkins County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Common Council of the City of Ithaca as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Cable Commission — See Ch. 17.
Landmarks preservation — See Ch. 228.
Zoning — See Ch. 325.
[1]
Editor's Note: The title of this chapter was changed from "Cable Communications Systems" to "Communications Technology" 11-6-2002 by Ord. No. 2002-8.
[Adopted 10-5-1988 by Ord. No. 88-8; amended in its entirety 11-6-2002 by Ord. No. 2002-9]
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.
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.
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.
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:
ACCESS CHANNELS
Channels set aside for noncommercial 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 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.
(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.
AREA OUTAGE
A total loss of video and audio on the cable television system in a location affecting 10 or more subscribers.
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:
(a) 
Consists of commonly identified video programming; and
(b) 
Is not bundled with any regulated tier of service.
(1) 
The one-way transmission to subscribers of:
(a) 
Video programming; or
(b) 
Other programming services; and
(2) 
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.
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
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
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
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.
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 who 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 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 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 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.
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 50% or more at one time of the ownership or controlling interest in the cable television system or 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.
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 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 nondiscriminatory 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 maintaining 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 nondiscriminatory 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 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 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 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.
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 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 nonrenewal. 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 50 consecutive days preceding each session.
(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 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 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 subsection, 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 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 N 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 30 days: $100 per day until filed.
(2) 
Failure to deliver evidence of franchisee insurance within the specified 60 days: $100 per day until delivered.
(3) 
Failure to restore an amount withdrawn from the performance bond, construction bond, or letter of credit within the specified 30 days: $100 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 per occurrence.
(6) 
Failure to maintain picture or audio quality in accordance with FCC and NYSPSC technical specifications: $100 per day.
(7) 
Failure to restore damaged property as required in this agreement: $100 per day.
(8) 
Failure to cure on request of the City any general lapse in compliance with applicable customer service standards: $100 per day.
(9) 
Failure to maintain proper material logs, records, and files as required in this agreement: $100 per day.
(10) 
Failure to disclose pertinent books and records as required in this agreement: $100 per day.
(11) 
Failure to comply with any proper and applicable prohibitions against discriminatory employment and service practices: $100 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 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.
(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.
(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 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 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 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: discounts to commercial and multiple-family dwelling subscribers billed on a bulk basis; promotional discounts; reduced rates for subscribers who have multiple services; or 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 U above shall be tendered as follows: The agreed-upon amount for successive three-month periods shall be tendered within 60 days after each such period. Said periods shall commence 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 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 2% above the prime rate in effect as of the due date.
Z. 
Recomputation. For a period not to exceed three 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 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 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 Subsection 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.
A. 
Performance bond. Within 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 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 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 10 days from the receipt of written notice to make a full and complete payment. If the grantee does not make the payment within 10 days, the City may withdraw the amount thereof, with interest and penalties, from the performance and/or construction bond. Grantee shall have the right to appeal any decision by Council to a court of competent jurisdiction.
F. 
Notification. Within three days of a withdrawal from a 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 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 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 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 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.
A. 
Terms of liability and insurance.
(1) 
Prior to commencement of construction but in no event later than 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 30 days' written notice of reduction in coverage, cancellation or nonrenewal.
(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 § 152-7A(1).
(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 owner's and contractor's liability insurance protecting the grantee in an amount of not less than $5,000,000 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 $1,000,000 per occurrence combined single limit for bodily injury and consequent death and property damage.
(2) 
Automobile liability shall cover owned, nonowned 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, $100,000 for employer's liability. The grantee must provide the City written proof before beginning construction of its cable system, and in any event within 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 any conduct undertaken pursuant to the franchise.
(2) 
As provided in Subsection G(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 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.
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 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.
(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 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 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 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 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 successive weeks, the first publication being not less than 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 channel of the cable system between the hours of 7:00 p.m. and 9:00 p.m. for four consecutive days during the two 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 article and the franchise.
P. 
Channel lineup. The grantee will provide subscribers with a channel lineup card for all cable services when the channel lineup 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 95% of the time, measured on a quarterly basis, the following service standards:
(1) 
Standard installations of up to 150 feet from existing aerial distribution plant shall be performed within seven business days after an order is placed unless a subscriber requests a particular date beyond seven business days;
(2) 
Excluding conditions beyond control of the grantee, the grantee will:
(a) 
Begin working on service interruptions promptly and in no event later than 24 hours after the interruption becomes known; and
(b) 
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:
(a) 
A specific time;
(b) 
Morning or afternoon hours;
(c) 
A four-hour time block of time during normal business hours;
(d) 
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 Subsection Q(1) and (2) of this subsection. Except as set forth in the first sentence of this subsection, 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 continuous hours in accordance with Subsection R(2) and (3) of this section. The four-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 continuous hours and some part of which occurs during the hours 6:00 p.m. to 12:00 midnight, 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 continuous hours or no part of such outage occurs during the hours 6:00 p.m. to 12:00 midnight, credit shall be given to any eligible subscriber who makes application therefor 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 1/30 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 City. 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.
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 years and shall reported to the NYSPSC and shall be made available to the City upon request, and shall at a minimum include:
(1) 
Number of requests for standard installations and number performed within seven business days;
(2) 
Number of service interruptions, and number of service interruptions responded to within and after 24 hours after notification;
(3) 
Number of service calls to subscriber's residence for installations and repairs, and number performed as per subscriber-requested time period;
(4) 
Number of installations or service calls rescheduled; and
(5) 
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 24 hours a day, seven days a week, and trained company representatives must be available to respond to all callers 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 30 seconds from when the connection is made;
(b) 
If a call needs to be transferred, transfer time shall not exceed 30 seconds;
(c) 
Callers will receive a busy signal less than 3% of the time; and
(d) 
The requirements of this section shall be met no less than 90% 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:
(a) 
The total number of days trained company representatives were available to receive incoming calls;
(b) 
The total number of calls received on such days;
(c) 
Average length of time a caller waits on hold before reaching a trained company representative;
(d) 
Total number of calls abandoned by incoming callers; and
(e) 
Percentage of time callers received a busy signal when attempting to reach the cable system; or
(f) 
Such other information that will document compliance with such standards.
(4) 
Upon request, the grantee shall provide quarterly reports with the City and must maintain for a period of one 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:
(1) 
Cash;
(2) 
Check;
(3) 
An automatic payment plan, where the amount of the bill is automatically deducted from a checking account designated by the subscriber; or
(4) 
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 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 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 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:
(a) 
The subscriber is delinquent in payment for service; and
(b) 
At least five days have elapsed after a separate written notice of impending discontinuance has been served personally upon a subscriber; or
(c) 
At least eight 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
(d) 
At least five 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 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 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 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 I 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 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 10 business days after the conclusion of those procedures, including any appeal to the City pursuant to Subsection I 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 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.
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 feet 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 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 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 business days after the grantee receives the request for disconnection at the grantee's business offices unless:
(1) 
It in fact occurs earlier; or
(2) 
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, 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 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 requirements for institutional networks in the franchise.
(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 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 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 actual or perceived age; creed; color; disability; domestic violence victim status; ethnicity; familial status; gender; gender identity or expression; height; immigration or citizenship status; marital status; military status; national origin; predisposing genetic characteristics; race; religion; sex; sexual orientation; socioeconomic status; or weight of such person or group of people.
[Amended 1-4-2017 by Ord. No. 2017-02]
(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 nondiscriminatory 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.
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 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 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 years and shall be provided to the City within five business days of their completion.
H. 
Quality of service.
(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 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.
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.
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 actual or perceived age; creed; color; disability; domestic violence victim status; ethnicity; familial status; gender; gender identity or expression; height; immigration or citizenship status; marital status; military status; national origin; predisposing genetic characteristics; race; religion; sex; sexual orientation; socioeconomic status; or weight 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.
[Amended 1-4-2017 by Ord. No. 2017-02]
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.
(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 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.
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.
A. 
Invitation of any applications for an initial franchise, public notice of "request for proposals." 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.
(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 hearings 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.
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.
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.
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 or more occasions to insist upon or to seek compliance with any such terms or conditions.
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.
[Adopted 11-6-2002 by Ord. No. 2002-10]
This article shall be known and may be cited as "City of Ithaca Telecommunications Ordinance."
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 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 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 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, § 152-1 et seq., as amended. Franchisees franchised pursuant to the Ithaca Cable Television Regulatory Ordinance shall comply with § 152-37 of this article.
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
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.
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
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
The City of Ithaca, New York.
COMMON COUNCIL
The Mayor and Council of the City of Ithaca.
COMMUNICATIONS POLICY ACT or CABLE ACT
The Communications Act of 1934, the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996, as they may be amended or succeeded.
EDUCATIONAL INSTITUTION
Any school, including the primary and secondary grades, as well as including all public, private, and parochial institutions, which educate students through a corporate dissemination of knowledge. This definition does not mean any privately run day-care facilities where there is no required academic coursework, personal tutorials, nor any other quasi-educational entity, which has been given neither legal authority to educate students, nor has gained any color of authority by holding itself out as a disseminator of knowledge to students.
[Added 11-5-2003 by Ord. No. 2003-18]
EXCLUDED AREAS
The parks, greenways and natural areas in the City.
FACILITY or FACILITIES
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
The Federal Communications Commission or any duly established successor.
FORCE MAJEURE
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
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
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.
FRANCHISE FEE
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. Educational institutions and institutes of higher learning shall be exempt from the payment of franchise fees.
[Amended 11-5-2003 by Ord. No. 2003-18]
FRANCHISEE or GRANTEE
Any person of any kind who has been legally granted a franchise by the City, and shall include the lawful successor, transferee or assignee of such grantee.
GROSS ANNUAL REVENUES
All revenues derived annually, directly or indirectly, by the grantee from operation of the grantee's telecommunications system, including but not limited to: the provision of telecommunications services that originate or terminate in the City; 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; 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 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 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 (PCB's), 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.
INSTITUTE OF HIGHER LEARNING
Any college, university, or analogous educational entity, which has the authority to confer degrees that indicate a proficiency in the fields taught by the college, university, or analogous educational entity. This definition, however, does not include any public or private preschool, day-care facility, primary, or secondary school.
[Added 11-5-2003 by Ord. No. 2003-18]
LANDMARK
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
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
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)
The state service agency regulating telecommunications or any successor state agency with similar responsibilities.
NOTICE
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
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
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
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
Any real property and improvements thereon, other than the public right-of-way, owned by the City.
PUBLIC RIGHT-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. Notwithstanding the foregoing, this term shall not include any excluded areas.
SERVICE-RELATED ACTIVITY
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.
STATE
The State of New York.
TELECOMMUNICATIONS PROVIDER
Includes every person who provides telecommunications services over a telecommunications system.
TELECOMMUNICATIONS SERVICES
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, radiowave 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, interstate 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
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
The disposal by the grantee, directly or indirectly, by gift, assignment, voluntary or involuntary sale, merger, consolidation or otherwise, of 25% or more at one time of the ownership or controlling interest in the telecommunications system, franchisee, or franchise, or 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.
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 nonexclusive 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 rights-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. 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, § 152-1 et seq.
B. 
Franchise required.
(1) 
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.
(2) 
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 months from the effective date of this article, unless such time frame is extended by the City.
(3) 
Any cable television system or open video system or cable service provider franchised under the Ithaca Cable Television Regulatory Ordinance, Chapter 152, § 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 nonexclusive telecommunications franchises by means of a public notice.
(b) 
The public notice shall contain, but need not be limited to:
[1] 
A description of the proposed franchise area.
[2] 
A statement that an application form is available to prospective applicants from a City official whose name, address, and telephone number are specified.
[3] 
A statement that applications for the franchise must be submitted in writing in the form and manner specified in the application.
[4] 
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.
(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, § 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:
[1] 
The location and route in the public right-of-way requested for applicant's proposed telecommunications system.
[2] 
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.
[3] 
The locations, if any, for interconnection within the public right-of-way with the telecommunications systems of other telecommunications providers.
[4] 
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 collocating 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:
[1] 
The excess capacity currently available in such ducts or conduits before installation of applicant's telecommunications system.
[2] 
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:
[1] 
The location proposed for the new ducts or conduits.
[2] 
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.
(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.
A. 
Regulatory authority.
(1) 
Ongoing 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 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 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 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) 
To formulate and recommend long-range telecommunications policy for the City.
(f) 
To represent the City's interest before local, state or federal government agencies in telecommunications matters.
(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 25% or greater ownership interest in the grantee, or 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 noncompliance 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 the 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 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.
[Amended 3-5-2003 by Ord. No. 2003-9; 11-5-2003 by Ord. No. 2003-18]
(a) 
Franchisee, with the exception of educational institutions and institutes of higher learning, shall pay to the City a franchise fee of 5% 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, with the exception of educational institutions and institutes of higher learning, shall pay to the City a linear foot fee of $1 per linear foot of aerial cable installed in the public right-of-way for the aerial facilities and shall pay to the City a linear foot fee of $4 per linear foot of underground (standard four-inch) conduit or cable installed in the public right-of-way for the facilities annually during the period of its operation under the franchise for the first three years of the franchise. Thereafter, the franchisee shall pay the fee of $1 per linear foot of aerial installation or $4 per linear foot of underground installation, 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.
(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 30 days after the expiration of each quarter. Linear foot fees shall be paid on all public rights-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 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 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:
[1] 
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 aboveground 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 aboveground facility (whether owned by grantee, another company, the City, or another person), such adjustment shall be made by grantee at a reasonable charge to the City.
[2] 
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 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 four-inch-in-diameter-or-larger conduit with innerducts, at its sole cost and expense for the City's use or to use 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 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 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 shall provide the grantee with a detailed written notice of the violation. Grantee shall have 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 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 subsection, 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 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 per day until obtained.
(b) 
Failure to deliver evidence of grantee insurance within the specified 60 days: $500 per day until delivered.
(c) 
Failure to restore an amount withdrawn from the performance bond or construction bond within the specified 30 days: $100 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 per day until paid.
(e) 
Failure to restore damaged property as required in this article or the franchise: $500 per occurrence or $100 per day, whichever is greater.
(f) 
Failure to maintain proper records and files as required in this article or the franchise: $500 per occurrence or $100 per day, whichever is greater.
(g) 
Failure to disclose pertinent books and records as required in this article or the franchise: $500 per occurrence or $100 per day, whichever is greater.
(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 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 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 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 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 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 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, 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 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, 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.
A. 
Performance bond. Within 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 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:
(1) 
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 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 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 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 10 days, the City may withdraw the amount thereof, with interest, from the construction bond or the performance bond.
G. 
Notification. Within three 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 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. 
Nonrenewal, 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 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 replacement bonds or policies within 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-year period of the franchise, applicable to the next three-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.
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.
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 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 30 days' advance written notice to the City of reduction in coverage, cancellation, or nonrenewal. It shall be the responsibility of the grantee to ensure that the City has been notified of any change, cancellation, or nonrenewal.
(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 preapproved 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 owner's and contractor's liability insurance protecting the grantee in an amount of not less than $5,000,000 per occurrence, including bodily injury, death, and property damage, as a combined single limit or equivalent. Automotive liability insurance shall cover owned, nonowned, 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 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 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.
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, § 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 the 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 60 days from the date of issuance of said permit.
(a) 
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, absent events of force majeure, the permit shall be deemed null, void, and of no further force and effect.
(b) 
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).
(c) 
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 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 eight-inch by eight-inch by eighteen-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 eight inches by eight inches by 24 inches 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, 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 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 cleanup shall be to the reasonable 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 nongovernmental 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 any change of grade, alignment or width of any street; any changes to the City's water system, storm sewers or sanitary sewers; construction, maintenance or operation of any other City-owned or -leased underground or aboveground facilities; traffic conditions or public safety, and/or such other municipal improvements as deemed in the public interest by the City. Said modification, disconnection, removal or relocation shall be completed within 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 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 the 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.
(13) 
Relocation of facilities. Should the grantee seek to remove or relocate its facilities in the public right-of-way, it shall give the City not less than 15 days' 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 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 12 months after such termination, and restoration shall be completed within 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 declare 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 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 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.
(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.
(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:
(a) 
Occupational Safety and Health Administration Regulations (OSHA).
(b) 
National Electrical Code.
(c) 
National Electrical Safety Code (NESC).
(d) 
Appropriate manual of construction procedures and standards as determined by the City.
(e) 
All federal, state and municipal construction requirements.
(f) 
All building, subdivision, and zoning codes or regulations, and all land use restrictions as the same exist or may be amended hereafter.
(g) 
Any and all state and federal laws or regulations regarding the transportation or disposal of hazardous materials.
(9) 
Good engineering practices.
(a) 
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.
(b) 
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 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 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 article 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 years by the City upon request.
(20) 
Emergency notification. Grantee shall provide the City with a twenty-four-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 days' advance notice to affected property owners (such as by door hanger) prior to construction or rebuild requiring work 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 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 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.
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 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 10% or more.
(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.
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.