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HomeMy WebLinkAboutD-1479-00 Cable TV RegulationORDINANCE NO. D-1479-00 AS AMENDED AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, ADOPTING AN ORDINANCE CONCERING CABLE TELEVISION, TO BE CODFlED AS CARMEL CITY CODE CHAPTER 4, D1VISON IV, ARTICLE 2, SECTION 4-69 WHEREAS, the Cannel Common Council has the authority to adopt ordinances subject to codification in the Cannel City Code; and WHEREAS, it is in the public interest to adopt provisions concerning the regulation of cable television systems and operators serving the City's residents. NOW, THEREFORE, the following Ordinance is hereby approved, and shall be codified in the Cannel City Code as follows: "Section 4-69 Cable Television Regulatory Provisions a. Street occupancy 1. The Operator shall comply with the street occupancy requirements of the City including, but not limited to, payment of all generally applicable permit and licensing fees. 2. All poles, cables, towers, lines, and other equipment and fixtures placed by the Operator within the public ways, whether above, on, or below ground, of the City shall be so located as to cause minimum interference with other authorized users of the public ways and adjoining premises. 3. If the disturbance of any public way is necessary, the Operator shall comply with all requirements of the City relevant to such disturbance. 4. If at any time during the period of the Franchise the City shall deem it necessary to change the location of any pole, cable, tower, and other equipment or fixture located in any public way, either above, on, or below ground, the Operator, upon reasonable notice by the City and reasonable time for compliance, shall relocate its poles, cables, towers, lines, and other equipment and fixtures at no expense to the City. 5. The Operator shall have the authority to trim, at the Operator's sole cost, trees or other vegetation owned by the City to prevent their branches or leaves from touching or otherwise interfering with the Operator's poles, cables, towers, lines, and other equipment, provided that such trimming shall be done only with the prior approval of, which approval shall not be unreasonably withheld, and in accordance with the reasonable instructions of the City engineer. 6. In all areas ofthe City where both telephone and electric utilities' facilities are placed underground, the Operator shall place its cables and other equipment undergrotmd. b. Notice to occuoants of propea¥ Prior to the start of construction within any easement other than a public street right- of-way, the Operator must give written notice to all affected property occupants informing them that the Operator will be working in the area affecting such property occupants. Such notice shall include a telephone number, which may be called by property occupants who encounter any problems or damages as a result of such work by the Operator. c. Operator responsibility for damages The Operator shall be responsible for repairs to public or private property necessitated by damage caused by or resulting from the Operator's or Operator' s contractors construction operation, or maintenance of the System. d. Deadlines for repair of public and l~rivate property 1. The repair ofpublic and private property damaged during construction, operation, or maintenance of the Operator's System shall be completed no later than sixty (60) days after the date of the damage. 2. Lawns shall be repaired to the preconstruction condition. e. General construction standards 1. The construction, operation, and repair ofthe Operator's System shall be performed in a safe, thorough, and reliable manner using equipment of good and durable quality. The construction, operation, and repair of the System shall be performed by experienced personnel familiar with their responsibilities under the Franchise and applicable laws and construction standards. The Operator shall at all times have sufficient trained Personnel to satisfy all its obligations under the Franchise (including under the customer service requirements set forth in subsection r. below) and applicable laws and regulations. 2. The Operator shall construct, operate, and maintain its System in accordance with all applicable laws and regulations including, but not limited to, federal, state, and local building, zoning and other land use, and safety laws, codes, and regulations now in effect or hereafter adopted. The construction, operation, and repair of the Operator' s System shall at all times be in accordance with the requirements of the: (a) National Electrical Code; (b) National Electrical Safety Code; (c) Rules and regulations of the Federal Communications Commission, Parts 17,76, and 78; (d) Obstruction marking and lighting, AC70/7460-IE, Federal Aviation Administration; (e) OSIrIA Safety and Health Standards; and D:XFiles\OrdinancesXD-1479-00.doc 2 (f) NCTA Standards of Good Engineering Practices, NCTA 008-0477 EIA Standard RS-222C "Structural Standards for Steel Towers and Antenna Supporting Structures"; and all amendments or successors to such codes, rules, standards, and regulations. 3. All cabling shall be buffed or secured above ground and shall not be placed on the surface. Cabling shall be buffed at least twenty-four (24) inches deep in the public rights-of-way and at least six (6) inches deep in private property. All cabling shall be buried as soon as practicable given the weather and soil conditions. The Operator shall respond within twenty-four (24) hours to Subscriber complaints concerning cabling used for service drops. f. Construction bond 1. At least thirty (30) days prior to commencement of construction, the Franchise holder shall obtain and maintain at its cost and expense, and file with the City attorney, a corporate surety bond issued by a company licensed to do surety business in the State of Indiana and in an amount required by the Franchise agreement to guarantee the timely construction and full activation of the System, considering the nature and extent of the System and the estimated costs of construction. The bond shall include, but not be limited to, the following conditions: There shall be recoverable by the City, jointly and severally, from the principal and surety, any and all damages, cost or expense suffered by the City resulting from failure of the Franchise holder to satisfactorily complete the System within the construction schedule described in the Franchise application and approved in the Franchise agreement. 2. Any extension to the prescribed construction schedule must be authorized by the Common Council. Such extension shall be authorized only when the Common Council finds that such extension is necessary and appropriate due to causes beyond the control of the Franchise holder. 3. Upon satisfactory completion ofconstruction required by the Franchise agreement, the construction bond shall be reduced by the Common Council to an amount recommended by the Committee, considering the nature and extent of any anticipated construction during the remaining term of the Franchise. 4. The rights reserved to the City with respect to the construction bond are in addition to all other rights of the City, whether reserved by the Franchise agreement or authorized by law, and no action, proceeding, exercise or failure to exercise any right with respect to such construction bond shall affect any other right the City may have. 5. The City may require the Operator to obtain new construction bonds throughout the Franchise term as necessary for construction of System extensions or upgrades. D:\Files\Ordinances~D-1479-00.doc 3 g. General maintenance standards 1. Subject to the other provisions of this section, the Operator shall establish a preventive maintenance policy directed toward maximizing the reliability (mean time between malfunctions) and maintainability (mean time to repair) of the System. The Operator shall provide the City with a copy of all written policies. 2. The Operator shall perform scheduled maintenance so that activities likely to result in an interruption of service are performed so as to minimize the extent of any such interruption and so that interruptions occur at the time of lowest System use. Except in emergency situations, service may be interrupted only after a minimum of forty-eight (48) hours advance notice to Subscribers and the City of the anticipated service interruption. 3. In the course of maintaining its System, the Operator shall use replacement components of good and durable quality, with characteristics better than or equal to replaced equipment and at least satisfy all federal, state, and local requirements. 4. The Operator shall identify and provide the telephone number for a senior employee or employees in the City whom the City can contact concerning System maintenance whenever the Operator's business office is closed. 5. The Operator shall test the performance ofits Cable System as required by the FCC. The Operator shall promptly correct any defects in System performance and shall retest the System. Copies of all test results shall be provided to the City. The City, at its own option and expense, may conduct tests of Operator's Cable System by a qualified independenL technician, provided that Operator is notified in advance and has an opportunity to be present. 6. If, based upon Subscriber complaints or based upon its own investigation, the City believes that the System may not be operating in compliance with this section, the City may require the Operator to perform tests and to prepare a report to the City on the results of those tests, including a report identifying any problem found and steps taken to correct the problem. h. Safety requirements 1. The Operator shall at all times comply with all safety requirements of the City ordinances. 2. The Operator shall a~ all times employ masonable care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public. 3. All cables and other equipment within the public ways of the City shall at all times be kept and maintained in as safe condition as can be reasonably accomplished using proven technology generally used by the cable industry for comparable Systems. 4. Operation of the System shall not cause any interference to television and radio reception, telephone communication, or other similar operations within the City. D:XFiles\Ordinances\D-1479-00~doc 4 i. Inspections The City shall have the right at any time upon reasonable notice to make such inspections of the System and the Operator's equipment used in the construction, operation, or maintenance of the System as it shall find necessary to ensure compliance with the terms of this section, the Franchise agreement, and other pertinent provisions of law. j. ReQuirements and notices which apply to subcontracts The Operator shall require any Person perfonning contractual construction or maintenance of the Cable System or Subscribers' premises to have picture identification on their person identifying them as authorized by Operator. Upon the request of the Committee, the Operator shall provide to the Franchise Coordinators the following information: the name of each subcontractor, the subcontractor's headquarters or main office address, names of subcontractor's officers or owner, a telephone number for handling questions concerning the subcontractor' work, and evidence of both worker's compensation and general liability insurance. The Operator agrees to assme responsibility for any act or omission of its subcontractors and to hold its subcontractors to the applicable standards in this section and the Franchise agreement. The City shall not be liable to any such robcontractor of the Operator. Any City review of the Operator' s subcontractors or failure to review the Operator's subcontractors does not in any way relieve the Operator of its obligations under this section. k. Public service systems The Operator shall provide upon request of the City facility or school one (1) connection to its Cable System flee of installation charge to all designated City facilities, including the public library, and to all public and accredited private_schools within the City and shall provide without charge those services specified in the Franchise agreement. If the connection requires the extension of the Operator's Cable System by more than one hundred fifty (150) feet from the Operator's existing System, the Operator may charge that portion of the extension costs required in excess of the cost to extend the existing System one hundred fifty (150) feet. 1. Signal quality requirements 1. The Operator shall install and maintain its Cable System (including cable, equipment and devices) so that the signal transmitted to each Subscriber at all outlets and on all Channels, including educational and governmental Channels, shall be of adequate strength and quality to produce, without causing cross modulation in the cable or interfering with other electrical or electronic systems, pictures and sound as good as can be reasonably accomplished using proven technology generally used by the cable industry for comparable Systems. D:\Files\OrdinancesXD-1479-00.doc 5 2. Except as preempted by federal or state law from doing so, the City res~wes the right to enfome Federal Communications Commission technical standards regarding Cable Systems. Compliance with the regulations of the Federal Communications Commission regarding signals transmitted, including at a minimum the technical standards set forth in 47 C.F.R. Section 76.601, as amended from time to time, shall constitute compliance with subsection 1.1 hereinabove so long as such regulations exist. 3. The Operator shall provide educational and governmental access Channels using headend and System processing hardware and techniques which will result in no significant deterioration in signal quality in terms of carrier to noise (C/N), chroma delay, depth of modulation, frequency stability, or other System distortions as compared to the processing quality utilized on Operator's own entertainment Channels. m. Educational or governmental access Channels, facilities, and ecluipment 1. The Operator shall provide at least two (2) Channels to be allocated in accordance with the Franchise agreement for educational or govemmental access. 2. The Operator shall interconnect its System with all other Systems operating under a Franchise granted by the City so that the Channels designated for educational or governmental access shall be transmitted on all Systems simultaneously and on the same Channels. This obligation includes the provision of all devices required to accomplish such interconnection. 3. To the extent that an Operator is providing programming for educational or govern_mental access Channels which another Operator is required to carry by intemonnection, the interconnecting Operator shall reimburse such Operator for a portion of its costs on a per Subscriber basis in accordance with rules and regulations adopted by the Committee or on such terms as the affected Operators may agree. 4. The Committee ma> promulgate rules and procedures for the use of Channels, facilities, equipment, and other support designated for educational or governmental access. 5. In the case of any Franchise under which Channel capacity is designated for educational or governmental use, the Committee may promulgate rules and procedures under which the Operator is permitted to use such Channel capacity for the provision of other services if such Channel capacity is not being used for such designated purposes and rules and procedures under which such permitted uses will cease. 6. The Operator shall not exercise any editorial control over any educational or governmental use of Channel capacity except as federal law expressly provides otherwise and shall have no legal liability for obscenity in accordance with the Act. The Operator shall provide to the City copies of any written and published policies concerning indecent programming on leased access Channels. D:Wiles\Ordinances~D-1479-00.doc 6 n. Parental control devices The Operator shall provide to Subscribers on request and at a reasonable cost parental control devices to permit Subscribers to block out the audio and video of any Channel. In addition, the Operator shall install devices (i) so that access to pay-per-view programming can be changed by the Subscriber through the use of a confidential "personal identification number" or other confidential validating information that can be assigned at the local business office or through the mail upon Subscriber request; and (ii) so that the sound and video portion of any scrambled Channel that carries programming can be blocked out on Subscriber request. The Operator must notify all Subscribers that this option is available, when it first begins providing Cable Services to a Subscriber and at least annually thereafter. o. Interconnection of institutional networks If an Operator' s Franchise agreement requires the provision of an institutional network, the Operator shall design the network so that it may be interconnected to institutional networks provided by any other Operator granted a Franchise by the City and shall be constructed to include all equipment, including active and passive electronic and optical devices needed to achieve compatibility so as to transmit video, sound, and data between users of such networks without modification of user's equipment and without significant deterioration in signal quality between networks. p. Emergency use of facilities 1. In the case of any disaster duly declared by the Mayor or other official legally able to declare a disaster, the Operator shall, upon request of the Mayor, make available to the City for emergency use during the disaster period all facilities, as are necessary, for the term of such disaster. 2. The System shall incorporate an emergency alert system that permits the City to override the audio portions of all signals on all Channels which the Operator may lawfully override. The Operator shall design the emergency alert system to permit the City to do the following: (a) Access and activate the emergency alert system using a touch tone telephone and a special security code. (b) Replace audio on all Channels with an emergency message that may be originated from a single location to be designated by the City using a telephone and character generator or computer. (c) Play back a prerecorded message over the emergency alert system. The Operator's obligations under this section include the obligation to provide equipment for the System required to ensure the System works and compliance with applicable Federal Communications Commission regulations shall constitute compliance with this subsection. The Operator shall work with the City to develop a plan for the regular testing of the emergency alert system. However, D:\Files\Ordinances\D-1479-00,doc 7 it is the sole responsibility of the City to determine whether and under what circumstances the emergency alert system shall be used for Citywide alerts. City shall indemnify and hold Operator harmless for any claim arising from the City' s use of the emergency alert system. q. Technological advances The Operator, at its expense, shall, upon City request, but not more often than annually, report to the Committee on technological advances in the industry and how such advances are being applied or could be applied in the City. r. Complaint and service procedure 1. The City has adopted the Federal Communications Commission customer service standards, and the Operator shall comply with these standards and any modifications to the standards adopted by the Federal Communications Commission during the term of its Franchise. 2. The Operator shall maintain a local office within the City or within Clay Township, Indiana, or within three (3) miles of the City or Clay Township, Indiana, limits staffed with at least one (1) customer service representative and open at least twenty (20) hours per week, including evening hours at least one (1) day a week. In addition, the Operator shall have a listed telephone, and be so operated that complaints and requests for repairs or adjustments may be received at any time, whether the office is open or closed. 3. Maintenance service shall be immediately available to correct major outages from 8:00 a.m. until 12:30 a.m. every day, including Saturdays, Sundays, and holidays. 4. Investigative action shall be initiated in response to all service calls, other than major outages, not later than the next business day after the call is received. Corrective action shall be completed as promptly as practicable. 5. The Operator shall maintain records of customer complaints, of responses to customer complaints, and of service calls in a form adequate for the Committee to determine compliance with this article. 6. Operator shall provide consumer billing information at the time of installation, at least annually to all Subscribers, and at anytime upon request. This information shall include written instructions that clearly set forth procedures for placing a service call or requesting an adjustment. These instructions shall also include a names, addresses, and telephone numbers of the Franchise Coordinators and a reminder that the Subscriber can call or write for information regarding terms and conditions of the Operator's Franchise if the Operator fails to respond to the Subscriber's request for installation, service, or adjustment within a reasonable period of time. 7. In the event a Subscriber does not obtain a satisfactory response or resolution to his request for service or an adjustment within a reasonable period of time, the Subscriber may advise the Franchise Coordinators of his dissatisfaction in writing and the Franchise Coordinators shall advise the Committee of all such complaints. The Committee shall record and track all complaints that are received. DAFiles\OrdinancesXD-1479-O0.doc 8 8. Whenever it is necessary to intentionally interrupt service for more than one (1) hour for the purpose of making System repairs, adjustments, or installations, the Operator shall do so at such time as will cause the least inconvenience to the Subscribers, and except in emergency situations, after giving at least twenty-four (24) hours advance notice of the interruption to Subscribers. 9. The Operator shall bill Subscribers no more frequently than once a month not to exceed twelve (12) times per calendar year and shall not bill for services not being provided to Subscribers. 10. The Operator shall have authority to promulgate such written rules, regulations, policies, prices, and Subscriber practices as are reasonably necessary for its business, including installation and disconnection policies, delinquent account collection procedures and late payment penalties, but Subscribers may not be required to waive rights they would otherwise have under applicable law in order to obtain service. The Operator shall provide the City with a copy of all such rules, regulations, policies, prices, and Subscriber practices promulgated by the Operator for the administration of its business as it relates to its Franchise and maintained by the Operator in writing, whether now existing or hereafter promulgated. Nothing in this section shall allow the Operator to promulgate rules which are inconsistent with its Franchise agreement with the City or applicable law, and the City shall have the right to negotiate or prohibit any practice or charge which the City may regulate or prohibit under applicable law. s. Termination of service Upon termination of se~ vice to any Subscriber, the Operator shall promptly remove all its facilities and equipment from the premises of the Subscriber upon request. t. Preferential or discriminatory practices l~rohibited Except to the extent permitted by federal, state, or local law, the Operator shall not, as to rates, charges, service facilities, rules, regulations, or in any respect, make or grant any undue advantage; provided, however, connection and service charges may be waived or modified during the Operator's promotional campaigns which shall be offered on an equal basis to all similarly situated customers. u. Subscriber privacy The privacy of Subscribers shall be protected in accordance with the provisions of Section 631 of the Act (47 U.S.C. Section 551). v. Franchise fee 1. Unless otherwise provided by its Franchise agreement or this article, the Operator of a Cable System for which a Franchise is required under this article shall pay to the City as compensation for use of the public rights-of-way, Franchise fees in aggregate D:\Files\Ordinances\D-1479-00.doc 9 amounts equal to five (5) per cent of its Gross Revenues derived annually from its operations of the Cable System to provide Cable Services to the City. Payments shall be due in accordance with the terms of the Operator's Franchise agreement. 2. As to Franchises granted prior to August 1, 2000, the Operator shall pay the Franchise fee specified in the Franchise agreement, as amended. 3. If the Franchise agreement requires the Operator to pay other amounts which are deemed Franchise fees under federal law and the sum of those payments and those required under subsection v. 1. exceeds the maximum Franchise fee permitted by federal law, the payments under subsection v.1. shall be reduced by such amount so that the total Franchise fee shall not exceed the maximum permitted by federal law. 4. The City reserves the right to conduct periodic audits of the Operator's records to determine compliance with this section. The City's acceptance of the Operator's Franchise fee payments does not constitute an accord and satisfaction nor are such payments in lieu of any other fees, taxes, or payments owed by the Operator. 5. The Operator shall pay simple interest at the rate often (10) per cent per annum on all Franchise fees that remain unpaid after the date they are due until the fees are paid. w. Security fund 1. Within thirty (30) days after the execution of the Franchise agreement, the Operator shall deposit with the City monies, a bond, a letter of credit, or a combination of these instntments made payable to the City of Carmel in amounts specified in the Franchise agreement (the security fund) as security for the faithful performance of all the provisions of the Franchise agreement, for payment of administrative fines described in subsection z below, and for payments by the Operator of any claims, liens, and taxes due the City which arise by reason of the construction, operation, or maintenance of the System. Any monies deposited pursuant to this subsection shall be placed by the Clerk-Treasurer of the City in an interest-bearing account at a bank or local savings institution agreeable to both parties. Interest on this account will accrue to the benefit of the Operator upon completion and activation of the System as required by the Franchise agreement. 2. If the Franchise Coordinators determine that City taxes are due from the Operator and are unpaid, that the City has been compelled to pay damage, cost, or expenses by reason of any act or default of the Operator in connection with the Franchise agreement, or that any other claims against the Operator have arisen by reason of the construction, operation, or maintenance of the System, such that the City may withdraw monies from the security fund, the Franchise Coordinators shall make a written report to the Committee outlining both the circumstances which the Franchise Coordinators believe entitles the City to withdraw monies from the security fund and the amount proposed to be withdrawn. The Franchise Coordinators shall provide a copy of the report to the Operator. The Committee shall hold a hearing on the proposed vf~thdrawal during which the Operator may respond to the Franchise Coordinators' report. Following the heating, the Committee shall recommend to the Common Council whether a withdrawal should occur and the amount of any withdrawal The Common Council shall act on the Committee's recommendation. If the Common Council confirms the Committee's recommendation, the Franchise D:XFiles\OrdinancesXD-1479-OO.doc l 0 Coordinators may immediately withdraw the mount, and, upon such withdrawal, the Franchise Coordinators shall notify the Operator of the mount and the withdrawal date. Within ten (10) days after notice to Operator that any mount has been withdrawn from the security fund, the Operator shall pay to, or deposit with, the City a sum of money or securities sufficient to restore such security fund to the full mount required by subsection w.1. hereinabove. If the Operator fails to restore the security fund within the specified ten-day period, the City may withdraw the entire security fund deposit remaining which shall be forfeited. 3. With respect to violations ofthis article for which administrative fines are specified in subsection z below, the Franchise Coordinators or other authorized City official shall provide written notice of the alleged violation to the Operator and allow the Operator thirty (30) days to comply. If the Operator fails to comply or to notify the City that corrective action is being actively and expeditiously pursued, the Franchise Coordinators or other authorized City official may initiate a proceeding before the Committee, which Committee is hereby designated pursuant to IC 36-1-6-9 as the administrative board before which violations of this article may be enforced. Such proceeding shall be initiated by filing a compliant with the Committee, which shall issue a summons to the Operator setting a time and date at which the Committee will hold a hearing on the violations alleged in the complaint. If after a hearing conducted in compliance with IC 36-1-6-9 the Conunittee finds that the Operator has violated the ordinance as alleged, the Committee shall enter an order fixing the mount of the administrative fines. If the Operator fails to appeal the order of the Committee within sixty (60) days after the date of the order as provided in IC 36-1-6- 9(f), the City shall withdraw the mount of administrative fines fixed in such order from the security fund. 4. The security fund deposited pursuant to this section shall become the property of the City in the event that the Franchise agreement is canceled by reason of the default of the Operator. Notwithstanding the foregoing, the Operator shall have the right to contest the Common Council's or Committee's decision to authorize a withdrawal from the security fund by filing as action in a court of competent jurisdiction. If the Operator prevails in such an action, the City shall repay to the Operator the mount so withdrawn together with interest at the statutory rate which applies to judgments from the date of such withdrawal. 5. The Operator shall be entitled to the return of such security fund, or portion thereof, and interest as remains on deposit with the City at the expiration of the term of its Franchise, provided that there is then no outstanding default on the part of the Operator. 6. The right reserved to the City with respect to the security fund are in addition to all other rights of the City, whether reserved by this article, the Franchise agreement, or authorized by law; and no action, proceeding, or exercise of a right with respect to such security fund shall affect any other right the City may have. D:~Files\Ordinances~l]-1479-00.doc 11 x. Liability, indemnification, and insurance 1. The Operator shall indemnify the City and its officers, employees, and agents for all expenses and costs, including reasonable attomeys' fees and other out-of-pocket expenses, arising out of or resulting from the grant of a Franchise to the Operator under this article, provided that the Operator shall have the right to agree to the selection of counsel and the fees to be charged for such defense and shall have the right together with the City, to give direction to counsel in such defense. 2. The Operator shall pay all damages and penalties which the City may legally be required to pay as a result of the grant of its Franchise under this article, including all damages arising out of the installation, operation, or maintenance of the System, whether or not any act or omission complained of is authorized, allowed, or prohibited by the ordinances of the City. The Operator' s payment shall include all amounts expended by the City in defending itself in such action including, but not limited to, attorneys' fees and out-of-pocket expenses. 3. In order for the City to assert its rights to be indemnified, defended, and held harmless, the City shall: (a) Notify the Operator of any claim or legal proceeding which gives rise to such right; (b) Afford the Operator the opportunity to participate in any compromise, settlement, or other resolution or disposition of such clai~n or proceeding and to fully control the financial terms of any paymems to be made in such final disposition; (c) Fully cooperate with the reasonable request of the Operator in its participation in, and control, compromise, settlement, or resolution or disposition of such claim or proceed'rag; and the Operator and the City shall act reasonably under all circumstances so as to mutually protect each other against liability and to mutually refrain from tompromising the rights of each other. The City shall inform the Operator of any offers to compromise, settle, or otherwise resolve or dispose on any such claim or proceeding. If the Operator is willing to accept such an offer and make all payments required by its terms, but the City refuses to agree to such offer within fifteen (15) days of notice from the Operator, the Operator's obligation for indemnification shall be limited to the amount that would have been due if the offer had been accepted. 4. The Operator shall purchase and maintain throughout the term of the Franchise agreement such commercial general liability and other insurance as is appropriate and as will protect the Operator and the City, and their employees, officers, or agents from (i) claims under workers' or workmen's compensation, disability benefits and other similar employee benefit acts; (ii) claims for damages because of bodily injury, occupational sickness or disease, or death of the Operator's employees; (iii) claims for damages because of bodily injury, sickness or disease, or death of any Person other than the Operator's employees; (iv) claims for damages insured by personal injury liability coverage which are sustained by any Person as a result of an offense directly or indirectly related to the employment of such Person by the Operator, or by D :\Files\OrdinancesXD-1479-00 .doc 12 any other Person or Entity for any other reason; (v) claims for damages because of physical injury to or destruction of tangible property wherever located, including loss of use resulting therefrom; (vi) claims arising out of operation of any laws or regulations for damages because of bodily injury or death of any Person or for damages to property; and (vii) claims for damages because of bodily injury or death of any Person or property damage arising out of the ownership, maintenance, or use of any motor vehicle, which may arise out of or result from the Operator's other obligations under the Franchise agreement whether it is to be performed or famished by the Operator, by any subcontractor, by anyone directly or indirectly employed by any of them to perform or furnish any of the work under the Franchise agreement, or by anyone for whose acts any of them may be liable. Written evidence of payment of premiums and copies of such insurance certificates shall be filed with the Franchise Coordinators within thirty (30) days of the date the Franchise agreement is fully executed. 5. The insurance required by this section shall be written for not less than the limits of liability and coverages as provided herein or as required by law, whichever is greater. The commercial general liability insurance shall include coverage of(a) premises and operations; (b) contractual liability as applicable to any indemnification or hold harmless agreement in the Franchise agreement; (c) products and completed operations; (d) broadform property damage, including completed operations; (e) fellow employee claims under personal injury; and (f) independent contractors. Such insurance shall specifically include coverage for property damage from explosion, collapse of structures or structural injury due to grading of land, excavation, filling, backfilling, tunneling, pile driving, caisson work, moving, shoring, underpinning, raising of or demolition of any structure, or removal or rebuilding of any structural support of a building ox structure. Such insurance shall further include coverage for damage to wires, conduits, pipes, mains, sewers, or other similar apparatus encountered below the surface of the ground when such damage is caused by any occurrence arising out of work performed by the Operator or by any of the Operator' s subcontractors or anyone directly or indirectly employed by either. 6. The Operator's insurance shall be written for not less than the following limits of liability: (a) Worker's compensation and disability: Statutory limits; (b) Employer's liability: (1) Bodily injury by accident: $100,000 each accident (2) Bodily injury by disease: $500,000 policy limit (3) Bodily injury by disease: $100,000 each employee (c) Conunercial general liability (occurrence basis) bodily injury, Personal injury, property damage, contractual liability, products--completed operations: (I) General aggregate limit (other than products--completed operations): $2,000,000 (2) Products/completed operations: $2,000,000 D:~FilesXOrdinanccsXD-1479-00.doc 13 (3) Personal and advertising injury limit: $1,000,000 (4) Each occurrence: $1,000,000 (5) Fire damage (any one fire): $ 50,000 (6) Medical expense limit (any one Person): $ 5,000 7. The Operator shall be responsible for paying all deductible amounts. 8. Before commencing work, the Operator shall submit a "certificate of insurance" indicating the above necessary coverages as well as naming the City and its employees and representatives as "additional named insureds" on all policies except workers' compensation to the City for review and approval. Such insurance shall be carried with financially responsible insurance companies authorized to do business in the State of Indiana, have a general policyholder's rating of A+, A, or A-, in the edition of Alfred M. Bests Insurance Reports and be satisfactory in form and coverage to the City. Such coverages shall be kept in force at all times during the term of the Franchise agreement. The Operator's insurer(s) shall provide by certified mail to the City thirty (30) days prior written notice in the event of cancellation, nonrenewal or material change in the policies. In the event the Committee determines that the certificates do not clearly show that the Operator's coverages and liability limits are those required by this section or litigation involving the scope or amount of the Operator's coverage under this section is commenced, the Committee reserves the right to request, and the Operator shall provide, copies of the underlying insurance policies for the certificates required above. 9. The commercial general liability insurance required by this section shall include contractual liability insurance applicable to the indemnity and hold harmless obligations under the Franchise agreement. 10. The right reserved to the City with respect to indenmification and insurance are in addition to all other rights of the City, whether reserved by the ordinances of the City, the Franchise agreement, or authorized by law, and no action, proceedings or exercise of a right with respect to such indemnification and insurance shall affect any other right the City may have. y. Limits on O~erator's recourse against the City and its officials, eml~lovees, and a~ents Except for actions seeking equitable relief, the Operator shall have no recourse whatsoever against the City or its officers, employees, or agents, for any loss, cost, expense, or damage on account of claims arising out of any provision or requirements of its Franchise because of its enforc~a~nt or nonenforcement, and without regard to whether the act or omission giving rise to the loss, cost, expense, or damage was required or not required by the grant of the Franchise. Nothing in this section shall be read to waive or limit any immuff~ties granted by state or federal law to the City. z. Administrative fines 1. For certain violations oftheprovisions ofthis section, the following administrative fines shall be chargeable to the security fund in accordance with the procedures of subsection w. hereinabove: D:\Ffies\Ordinances\D-1479-00.doc ]4 (a) For the failure to complete construction and installation of the System in accordance with subsections a. through and including i. of this section, the Operator shall be subject to an administrative fine of one thousand dollars ($1,000) each day or part thereof that the failure continues. (b) For failure to provide data and reports as requested by the Franchise Coordinators, Committee, or Common Council or required by this article, the Operator shall be subject to an administrative fine of fifty dollars ($50) each day or part thereof that the failure continues. (c) For failure to comply with the transfer requirements of section 4-68w. of this Code, the Operator shall be subject to an administrative fine of one thousand dollars ($1,000) each day or part thereof that the failure continues. (d) For continuing failure after notice by the City to comply with the System and customer service standards of subsections k. through and including u. of this section, the Operator shall be subject to an administrative fine of seven hundred fifty dollars ($750) each day or part thereof that the failure continues. (e) For persistent failure to comply with such reasonable requests as may be made by the Franchise Coordinators, Committee, or Common Council pursuant to authority granted by the ordinances of the City, the Operator shall be subject to an administrative fine of seven hundred fifty dollars ($750) each day or part thereof that the failure continues. (f) Recovery of administrative fines shall not excuse nonperformance, and the City may, in addition to recovering such damages, obtain any other relief or apply any other remedy which it may seek under the ordinances of the City, the Franchise agreement, or otherwise at law or equity. 2. In addition, the City retains all other rights and powers it has by virtue of the ordinances of the City, the Franchise agreement or otherwise, including the right to impose civil penalties, and shall have the right to terminate and cancel the Franchise and all rights and privileges of the Operator in accordance with this article or the Franchise agreement. 3. The Operator shall not be deemed in violation of the provisions of this article where such violation is an event beyond Operator's control such as war, riots, civil disturbance, loss of utility service or facilities, judicial or governmental order, hurricanes, tomadoes, wind, floods, or other natural catastrophes or other events beyond an Operator's control, and an Operator shall not be penalized for such violation, provided the Operator takes immediate and diligent steps to bring itself back into compliance and to comply as soon as possible with this article under the circumstances without endangering the health, safety, and integrity of the public, public streets, public property, or private property. 4. Termination and cancellation may be effected only as specified by ordinance and in accordance with federal, state, and local law, however, before the Franchise may be terminated and canoeled under this section, the Operator must be provided with thirty (30) days notice and an opportunity to be heard before the Committee or the Common Council. D:\Files\Ordinances\D-1479-00.doc 15 aa. Operator noncollusion warranty The Operator shall warrant that it has neither paid nor agreed to pay any commission, fee, pementage, gift, or any other consideration, including providing service without charge, contingent upon, or resulting form the award, transfer, or renewal of its Franchise to any officer (whether elected or appointed), employee, or agent of the City. bb. Compliance with other apl~licable laws 1. The Operator shall comply with all statutes, codes, ordinances, rules, and regulations applicable to its business. 2. A Franchise granted pursuant to section 4-68 of this Code authorizes only the operation of a Cable System, and does not take the place of any other franchise, license, or permit which law requires of the Operator. cc. Reports to be filed with the City 1. The Operator shall maintain accurate, complete, and current maps and records of its System and facilities, which shall be available for inspection and copying by the City during normal business hours at the Operator's local office. 2. Upon City's request, the Operator shall file with the City all quarterly and annual financial reports and statements required to be filed with the Securities and Exchange Commission. 3. The Operator shall provide to the City quarterly statements of Gross Revenues by category or revenue with regard to payment of Franchise fees as well as an annual report of Gross Revenues by category of revenue from the operation of its System in the City. 4. The Operator shall file with the City a copy of any formal communications received from or required to be filed with any other governmental agency, except tax returns and determinations, including the Federal Communications Commission, concerning the operation of its System in the City or affecting the Operator's ability to perform its Franchise agreement with the City. 5. The Operator shall file with the City written evidence at least annually of the payment of premiums on insurance policies required by this section. 6. The Operator shall file annually with the City the equal employment opportunity reports described in Section 634 of the Act (47 U.S.C. Section 554), if the Operator files such reports with the Federal Communications Commission. 7. The Operator shall keep on file with the City current copies of insurance certificates evidencing the coverages and liability limits required by this section. 8. The Operator shall file monthly with the Committee an operations report, showing such information as changes in Subscriber totals, Subscribers for each tier of service, a summary of complaints, and a summary of outages. 9. The Operator shall file or keep on file with the City any information which the Committee or the Common Council reasonably deems necessary to ensure that the duties of the Operator to its customers, the Common Council, and the Committee are carded out. D:\Files\Ordinances~D-1479-00.doc 16 dd. Inspection of records and facilities; maintenance of records 1. At any reasonable time during normal business hours, the City shall have the right to inspect the equipment, operating facilities and business records ma'mtalned by the Operator to determine compliance with the Franchise agreement and applicable law. 2. The Operator shall maintain all records related to the Franchise at least five (5) years, and all such records shall stay with the System in the event of a transfer. ee. Limitation on ownership by certain parties No officer (whether elected or appointed), employee, or agent of the City or member of such Person's immediate family (meaning spouse or children), whose official duties require him to administer, enfome, or regulate the business of the Operator or the terms or conditions of the Franchise agreement, shall, during the term of the Franchise or until after a one (1) year period following the termination of such Person's duties as such officer, employee, or agent, own, either directly or indirectly, any beneficial interest in the business of the Operator. ff. Performance evaluations The City shall conduct regular performance evaluations at least every three (3) years during the term of the Franchise to determine the Operator' s compliance with the terms of the Operator' s Franchise agreement and the ordinances of the City. gg. Reimbursement ofCiW's expenses The Operator shall rei,nburse the City its expenses for conducting the Franchise audits described in subsection v.4. hereinabove and the performance evaluations described in subsection f.f. hereinabove, if specifically required by the Franchise agreement. hh. Reservation of City rights; Franchise limitations 1. No privilege or power of eminent domain is bestowed by the grant of a Franchise under this chapter; the grant of Franchise does not confer any rights other than as expressly provided by this article or the Franchise agreement. 2. The Franchise and the right it grants to use and occupy the public ways shall not be exclusive and do not explicitly or implicitly preclude the issuance of other franchises to operate Cable Systems or other communications systems with the City, affect the City' s right to authorize the use of public ways by other Persons or Entities to operate Cable Systems or other communications systems or for other D:\Files\OrdinancesXD-1479-00.doc 17 purposes as it determines appropriate for the same or a different franchise territory, or affect the City' s right to itself construct, operate, or maintain a Cable System or other communications system, with or without a franchise as permitted by federal or state law. ii. Public records standard Public records generated under this section shall be available in accordance with the provisions of IC 5 - 14- 3. jj. Repeal of inconsistent ordinances All prior ordinances or parts thereof inconsistent with any provision of this Ordinance are hereby repealed as of the effective date of this Ordinance. kk. Severability If any portion of this Ordinance is for any reason declared to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portions of this Ordinance as long as enforcement of same can be given the same effect." This Ordinance shall be in full force and effect from and after the date of its passage, signing by the Mayor, and such publication as is required by law. ' ASSED BY THE Common Council of the City of Carmel, Indiana, this/3~ay of I~./~/'/-)I~D//,''~ ,2000, by avote of (t ayes and ~ nays. COMMON COUNCI/L FO THE CITY OF C er~ Wa~ Wilson D:\Files\OrdinancesXD-1479-00.doc 18 ATTEST: · 2000. ~s Brain~rd, Mayor ATTEST: D:\Files\Ordinances\D-1479-00.doc ] 9