[HISTORY: Adopted by the Common Council of
the City of Ithaca as indicated in article histories. Amendments noted
where applicable.]
[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.
ACCESS CHANNELS
ADDITIONAL SERVICES
AFFILIATE
(1)
(2)
(3)
AREA OUTAGE
BASIC CABLE SERVICE
CABLE PROGRAMMING SERVICE TIER
CABLE SERVICE(S)
CABLE SYSTEM
(1)
(2)
(3)
(4)
(5)
CAPABILITY
CAPACITY
CHANNEL
COMMERCIAL SUBSCRIBER
COMMON COUNCIL
COMMUNICATIONS POLICY ACT or CABLE ACT
COMPLAINT
CONVERTER
COST
DROP
EDUCATIONAL CHANNEL or EDUCATIONAL ACCESS CHANNEL
EXCLUDED AREAS
FAIR MARKET VALUE
FCC
FIBER
FIBER NODE
FORCE MAJEURE
FRANCHISE
FRANCHISE AREA
FRANCHISEE
FRANCHISE FEE
GOVERNMENT CHANNEL or GOVERNMENT ACCESS CHANNEL
GRANTOR
GROSS ANNUAL REVENUES
HEADEND
INSTALLATION
INSTITUTIONAL NETWORK
INSTITUTIONAL USER
LEASED ACCESS CHANNEL or COMMERCIAL ACCESS CHANNEL
LOCAL ORIGINATION
LOCAL ORIGINATION CHANNEL
NEW YORK STATE PUBLIC SERVICE COMMISSION (NYSPSC)
NORMAL BUSINESS HOURS
NORMAL OPERATING CONDITIONS
NOTICE
OPEN VIDEO SYSTEM or OVS
PARENT CORPORATIONS
PERSON
PLANT MILE
PUBLIC ACCESS CHANNEL or COMMUNITY ACCESS CHANNEL
PUBLIC PROPERTY
PUBLIC RIGHTS-OF-WAY
REASONABLE NOTICE
RESIDENT
RESIDENTIAL SUBSCRIBER
SALE
SCHOOL
SERVICE CALL
SERVICE INTERRUPTION
SERVICE OUTAGE
SERVICE REQUEST
STATE
SUBSCRIBER
TRANSFER
UPGRADE
USER
For the purpose of this article, the following terms,
phrases, words and their derivations shall have the meanings given
herein:
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.
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.
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:
The City.
Any educational institution acting in its capacity
as such for public, educational or charitable purposes.
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.
A total loss of video and audio on the cable television system
in a location affecting 10 or more subscribers.
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 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:
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 facility that serves only to retransmit the
television signals of one or more television broadcast stations;
A facility that serves subscribers without using
any public right-of-way;
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
Any facilities of any electric utility used
solely for operating its electric utility systems.
An open video system that complies with Section
653 of the Cable Act.
The ability of the grantee to activate a described technological
or service aspect of the cable television system.
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.
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).
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.
The Mayor and Council of the City of Ithaca.
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.
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.
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.
Shall be defined in accordance with FCC regulations.
A connection from feeder cable to the subscriber/user's television
set.
Any channel where educational programs are the only designated
use. The educational access channel(s) shall only be used for noncommercial
purposes.
The parks, greenways and natural areas in the City.
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.
The Federal Communications Commission and any duly established
successor.
A transmission medium of optical fiber cable capable of carrying
cable services by means of lightwave impulses.
The local transition point between the fiber distribution
portion and the co-axial distribution portion of the cable television
system.
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.
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.
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.
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.
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.
Any channel specifically designated or dedicated for government
use. The government access channel(s) shall only be used for noncommercial
purposes.
The City of Ithaca as represented by the Common Council acting
within the scope of its jurisdiction.
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.
The grantee's facility for reception and dissemination of
signals on the cable television system.
The connection of the system from feeder cable to the subscribers'
terminal.
A communication network which is constructed or operated
by the cable operator and which is available only to institutional
users.
A public, educational and/or government institution receiving
or providing institutional services.
Any channel designated or dedicated for use by persons unaffiliated
with the grantee, at rates in accordance with the Cable Act.
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.
Any channel designated for local origination. This channel
may be used for commercial purposes.
The state agency regulating cable services, or any successor
state agency with similar responsibilities.
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.
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.
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.
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.
Existing or future corporations or other persons with greater
than fifty-percent ownership or having control in whatever manner
exercised over the grantee.
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.
A linear mile of strand-bearing cable as measured on the
street of easement from pole to pole or pedestal to pedestal.
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.
Any real property owned by the City or any other government
entity other than the 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.
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.
Any person residing in the City as otherwise defined by applicable
law.
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.
Includes any sale, exchange, barter or offer for sale.
Any public or nonprofit state-accredited primary and secondary
schools, both public and private.
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.
The loss of picture or sound of one or more cable channels.
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.
A request from the subscriber for a technical service, such
as installation, adjustment for poor picture quality or converter
repair.
The State of New York.
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.
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.
Increase in capacity of the cable system by 20 MHz.
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 City Manager
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.
[Amended 11-3-2021 by Ord. No. 2021-09]
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:
(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.
(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:
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:
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.
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:
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.
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:
(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.
[Amended 11-3-2021 by Ord. No. 2021-09]
Every notice to be served upon the City shall
be sent by certified mail, postage prepaid, to the City Manager, City
Attorney and City 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.
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 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 facility that serves only to retransmit the
television signals of one or more television broadcast stations;
A facility that serves subscribers without using
any public right-of-way;
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
Any facilities of any electric utility used
solely for operating its electric utility systems.
The City of Ithaca, New York.
The Mayor and Council of the City of Ithaca.
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.
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]
The parks, greenways and natural areas in the City.
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.
The Federal Communications Commission or any duly established
successor.
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.
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.
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.
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]
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.
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.
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.
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]
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.
Those telecommunications services provided by grantee beyond
the local telephone service area, which do not terminate or originate
in the City of Ithaca.
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.
The state service agency regulating telecommunications or
any successor state agency with similar responsibilities.
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.
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.
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.
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.
Any real property and improvements thereon, other than the
public right-of-way, owned by the City.
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.
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.
The State of New York.
Includes every person who provides telecommunications services
over a telecommunications system.
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.
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.
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.
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.
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.
(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:
(j)
If applicant is proposing an underground installation
within new ducts or conduits to be constructed within the public right-of-way:
(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 City Manager or his/her designee. The City Manager 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.
[Amended 11-3-2021 by Ord. No. 2021-09]
(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 City Manager 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.
[Amended 11-3-2021 by Ord. No. 2021-09]
(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.
[Amended 10-6-2021 by Ord. No. 2021-07]
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, or telecommunications systems as may be licensed pursuant to Chapter 170, Use of City Real Property.
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.
[Amended 10-6-2021 by Ord. No. 2021-07]
(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. In areas where utilities are placed underground, the grantee may not be permitted to install new poles unless the Board of Zoning Appeals approves of such installation in accordance with the review process set forth in Article VA entitled “Telecommunications Facilities and Services,” within Chapter 325, Zoning, of the City Code, and as subject to the City’s present or future public works, fire, and/or safety concerns and comments.
(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. If a small cell attachment is proposed
for an existing utility pole with an existing street light attachment,
the small cell equipment shall be installed such that the streetlight
will remain in the same location and height and installed such that
the small cell equipment will not obstruct proper lighting of the
area.
(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.
(d)
For new or replacement poles, the following spacing standards
shall apply:
|
Object
|
Minimum Spacing
|
|---|---|
|
Curb
|
2.5 feet to face of curb
|
|
Mainline sidewalk
|
1.5 feet
|
|
Bike paths
|
5 feet
|
|
Pavement edge (unimproved streets)
|
4 feet
|
|
Residential driveway
|
6 feet
|
|
Commercial driveway
|
10 feet
|
|
Streetlight
|
10 feet
|
|
Traffic signal
|
25 feet unless on traffic signal pole
|
|
Utility pole
|
25 feet (with collocation favored)
|
|
Street tree
|
15 feet
|
|
Fire hydrant
|
6 feet
|
|
Bike rack
|
10 feet
|
|
Bus stop
|
8 feet (see note 5)
|
|
Notes:
| |
|
1.
|
Minimum spacing is to nearest face of pole.
|
|
2.
|
If an existing pole that violates any of these standards is
being replaced, it may remain in the same location, but it may not
be placed any closer to any object than existing condition.
|
|
3.
|
In certain circumstances, City Engineering may request further
spacing than what is noted; the intent of which is not to prohibit
installations, but better accommodation of existing or future features.
Examples - driveways with heavy truck use, more sensitive street trees,
streets with right-of-way reservations or planned sidewalk installation,
etc.
|
|
4.
|
To the maximum extent feasible, applications must adhere to
the minimum spacing guidelines.
|
|
5.
|
The design of bus stops vary throughout the City and each location
is unique. Poles must be placed such that they do not interfere with
bus operations and accessible loading/unloading passengers in and
around bus stop zones.
|
|
6.
|
Nothing in this table is to be construed to override any existing zoning requirements as may be applicable and set forth in Chapter 325.
|
(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. To the extent a facility or support structure
owned by a party other than the City is destroyed, removed, relocated,
or replaced, the owner of the collocated facility must obtain a new
right-of-way use permit; or the replacement facility or support structure
accommodating the collocation must be comparable in size, mass, appearance,
and placement, as determined by the City Engineer.
[Amended 10-6-2021 by Ord. No. 2021-07]
(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:
[Amended 10-6-2021 by Ord. No. 2021-07]
(a)
Not endanger or interfere with the health, safety
or lives of persons. Specifically, but without limitation, complying
with the following:
[1]
Facilities and support structures must be located so as not to create
a vision hazard at intersections or driveways. Equipment near these
areas must be placed below 2.5 feet or above 15 feet.
[2]
Equipment mounted to support structures must not interfere with or
create a hazard to pedestrian or vehicular traffic and must be a minimum
of 12 feet above any pedestrian or bicycle thoroughfare and a minimum
of 16 feet above any traffic lane. Metering equipment may be placed
at ground level provided that the location does not violate any of
the spacing standards established for pole placement.
[3]
The height of a support structure, tower, or utility pole in the
right-of-way shall be no more than 10% higher of any adjacent pole
up to a maximum height of 50 feet. Telecommunication system installations
shall not extend existing structures on which they are located to
a height of more than 50 feet or by more than 10 percent, whichever
is smaller.
(b)
Not interfere with any public utilities or improvements
the City or state may deem proper to make. To the extent possible,
a facility, support structure or utility pole should be located and
designed so as to avoid interference with right-of-way maintenance
activities, such as: (i) grass mowing, brush collection, tree trimming,
and landscaping maintenance; (ii) trash collection; (iii) maintenance
of streets, pavement, sidewalks, and bicycle lanes; and (iv) maintenance
of other facilities in the rights-of-way such as poles, hydrants,
bike racks, control cabinets, etc.
(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.
All equipment and support structures are to be installed such that
they do not obstruct, impede, or hinder vehicular, pedestrian or bicycle
travel, including any facilities necessary to meet Americans with
Disabilities Act of 1990 along with any updates to the ADA guidelines.
A clear pedestrian path shall be maintained at all locations, and
the minimum width of the path may vary and will be determined by City
Engineering with each application.
(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.
[Amended 10-6-2021 by Ord. No. 2021-07]
(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. Such terms and conditions shall include those set forth in Chapter 170, Use of City Real Property.
[Amended 10-6-2021 by Ord. No. 2021-07]
(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.
[Amended 10-6-2021 by Ord. No. 2021-07]
(8)
Tree removal and 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. Tree “topping” or improper pruning
of trees within the right-of-way is prohibited. 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. City street trees may not be
removed for the purposes of installing any telecommunication system.
The City will also preserve locations where a street tree may be planted.
To the extent a telecommunication system installation will impact
a City tree, the applicant must secure a tree permit from the City
Forester as part of the street permit authorization.
[Amended 10-6-2021 by Ord. No. 2021-07]
(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.
