(a) Construction Schedule. The Franchise applicant or existing Franchisee, in the case of Renewal, shall submit with his or her Application(s) a plan for construction or rebuild of the system, which shall be incorporated into the Franchise Agreement. The plan shall include a construction timetable for all areas of the City, with the exception of those areas owned by Miami University notwithstanding an agreement with the University to provide service, including the downtown and business districts of the City. Nothing contained herein shall prevent the successful applicant or existing Franchisee from constructing or rebuilding the system, or any part thereof, more quickly than contained in the plan. It shall be a violation of the Franchise Agreement for the Franchisee to delay construction or rebuild of the system, or any part thereof, beyond the timetable specified in the plan. The City may, for good cause shown, which shall not be unreasonably withheld, consent to an extension of the construction schedule, in whole or in part. The Franchisee must notify the City within forty-five (45) days of any event or nonoccurrence of an event which will result in a time-extension request.
(b) Construction Timetable.
(1) Permits. The Franchisee shall diligently proceed to obtain all necessary permits, authorizations, and agreements including, but not limited to, utility pole attachment agreements, microwave licenses, etc.
(2) Construction Commencement. Not more than ninety (90) days after obtaining all necessary permits, licenses, and agreements, but not later than six (6) months after acceptance of the franchise, the Franchisee shall commence the construction, or rebuild of the Cable TV System.
(3) Subscriber Service. Under this Agreement, the franchisee shall initiate any new services as areas become capable of providing such new services. The initial offering of such new services shall take place no later than one hundred twenty (120) days after the completion of each node during the System rebuild.
(4) Completion of Construction. The Franchisee shall complete construction of the System as provided in the map and construction plan, as delivered to the AUC. Notwithstanding any delays in obtaining permits, licenses, or agreements, the System shall be completely constructed or rebuilt within two (2) years from the effective date of the Franchise Agreement.
(5) Time Extension. The City, at its sole discretion, may permit the Franchisee, for good cause shown, which shall not be unreasonably withheld, including for acts of God, an extension of time to meet any of the requirements of this section. Any violation of this section are material breaches of the Franchise Agreement and are grounds for revocation of the Franchise or such other penalties as the City may decide.
(c) System Design Provisions.
(1) The Franchisee shall design, construct, operate and maintain the System to a minimum of 750 MHZ spacing having the capability of delivering no less than 86 downstream and 2 upstream television Channels with a minimum of sixty-seven (67) downstream television Channels initially activated.
(2) The System shall be designed utilizing fiber optic cable for all long distance or trunk cables serving Nodes (pockets of homes) of no less than 500 homes with the design capacity to subdivide into Nodes of a minimum of 250 homes. There shall be no more than seven (7) active devices between the fiber/coax node and any Subscriber.
(3) The Franchisee shall design, construct, operate, and maintain a System having the capability for non-voice return communications. The City and the Franchisee will continue to assess the need and economic feasibility for implementation of the Two-Way capabilities of the system or any part thereof.
(4) The Franchisee shall design the System capable of being interconnected with other Systems serving the City and/or Miami University. The City may request the Franchisee to negotiate interconnecting the System with other Systems adjacent to the City.
(5) The Franchisee shall provide the City with a full description of the System proposed and shall upon completion of the construction or rebuild, submit in written and computer form, "as Built" maps for the entire system, to the extent such maps have not previously been submitted.
(6) The Franchisee agrees that the upstream signal at the head-in for the INET (PEG) transmission must be in compliance with and equal to the minimum quality required by the FCC for cable operators at the time the INET (PEG) signal is transmitted from the head-in to the Subscribers.
(7) The Franchisee shall insure that the basic service level can be accessed by the subscriber without a converter, at the subscriber's option. Franchisee can elect at its option to utilize a converter on the cable subscriber service level, but must give the City written notice at least thirty (30) days before implementation of the converter.
(8) All channels downlinked in stereo shall be broadcast in stereo, except CNBC and the Weather Channel.
(d) Construction and Technical Standards.
(1) The Franchisee and its subcontractors shall comply with all applicable federal, state and City laws, rules, regulations, codes, practices, and other requirements, including but not limited to, FCC Rules Part 76, Subpart K, Sections 76.601 - 76.617. Construction approval for the System shall be subject to such building permit fees, City inspections, and other regulations as may be in effect at the time of construction.
(2) The installation of all cables, wires and/or other parts of the System, in any building or structure, public or private, shall be in a manner which does not interfere with the operation of any other distribution system in that structure, including the conduit used in conjunction with said other system.
(3) If the installation or construction of the system, or any part thereof, does not comply with all rules, regulations, standards, and/or laws, the Franchisee must, at its own cost, remove and replace such cables, wires, or other parts of the System to insure compliance.
(4) The Franchisee shall fully comply with all reports and filings required under the aforementioned FCC Rules and copies shall be maintained in the local office available for inspection by the City or its designated representative.
(e) Utility Pole Use. The Franchisee shall use existing utility poles, conduits, and other facilities where feasible. The Franchisee may not erect any new pole without the approval of the City. Such approval may not be unreasonably withheld but will be at the sole discretion of the City. Notwithstanding such use of existing poles or permission to erect new poles, the Franchisee shall not have a vested right to such poles and shall modify or remove the equipment, at its own expense, when reasonably required to do so.
(f) Underground Construction.
(1) The Franchisee may aerially install cable equipment only in those areas where another utility has aerial installations, unless the City, in its sole discretion, otherwise agrees. In those areas where all existing utilities are underground, the Franchisee shall install its cables underground. In those areas where the Franchisee has installed on the aerial equipment of other utilities and those utilities decide to place their equipment underground then the Franchisee shall convert to underground on a cost-sharing basis with the other utilities.
(2) The developer of new property construction, where utilities are to be underground, shall give the Franchisee reasonable notice of the date on which trenches will be opened and available for the Franchisee's installation of its equipment. The Franchisee shall provide to the developer all specifications of its equipment needs for trenching. The cost of the trenching and easements shall be borne by the developer, while the Franchisee shall bear the cost of its equipment and its installation. However, if the Franchisee fails to install its equipment within five (5) days of the date that it was notified that the trenches would be open and the trenches are subsequently closed prior to the installation of the Franchisee's equipment, then the Franchisee shall bear all cost of new trenches. If the developer does not commence construction of dwelling units at the development within two (2) years of the installation of the cable equipment, then the Franchisee may charge the developer for the cost of equipment installation and a reasonable maintenance charge.
(3) In the event an underground installation is required and the ground is frozen, saturated, or otherwise unable to facilitate immediate underground installation, such installation shall be performed on a temporary basis in compliance with generally applicable standards. As soon as conditions permit proper underground installation, the Franchisee shall, within thirty (30) days, undertake all necessary steps to install the cable underground.
(g) Construction Safety Standards.
(1) All construction practices shall be in accordance with the Occupational Safety and Health Act of 1970, as amended, and all state and local safety codes where applicable.
(2) The Franchisee shall install and maintain its cables and equipment in accordance with the requirements of the National Electric Safety Code and the National Electrical Code as they now exist or hereafter may be amended, and the laws, ordinances, and regulations of the Cable Act of 1992, the FCC, and all other state or local laws, codes, or regulations that are in effect now or in the future.
(3) No Cable TV installation shall interfere with any municipal installation (street light, traffic signal, etc.) upon a public utility pole or over a public right-of-way. The Franchisee shall arrange its cables and equipment (in or over both private and public property) so as to cause a minimum of interference with the rights and reasonable convenience of property owners and the public.
(4) Antennas and their supporting towers shall meet all the requirements and applicable rules and regulations of the Federal Aviation Administration and all other applicable state or local laws, codes, and regulations and shall meet all the requirements of the electronic industry association's specifications.
(5) The Franchisee shall replace and restore all paving on the walks, driveways, or Streets according to the specifications of the City.
(6) In case of fire, flood, or similar occurrence, the City may decide to temporarily remove any of the Franchisee's facilities or equipment. The Franchisee shall not be entitled to payments for any damage caused by this removal, unless the City acted with gross negligence, recklessly, or with malicious intent.
(h) Construction Codes and Permits.
(1) The Franchisee shall obtain all required permits from the City prior to commencing any work requiring a permit, including the opening or disturbance of Street or public property or public easement within the City. Franchisee shall submit proposed construction plans for review and approval by the Service Director of the City prior to any construction. The Franchisee shall strictly adhere to all building and zoning codes currently applicable to the construction, operation, and/or maintenance of the System and any amendments or additions to such codes in the future.
(2) The City shall have the right to inspect all construction performed pursuant to this Chapter or subsequent agreement and to make such tests as it shall find necessary to ensure compliance with the terms of this Chapter and any applicable local, state, and federal laws, codes, and/or regulations.
(3) Nothing contained in this Chapter shall be construed to give the Franchisee the authority to enter upon or work on private property in areas not encumbered with public easements without the permission of the property owner.
(i) Tree Trimming. Upon obtaining a written permit from the City, the Franchisee shall have the authority to trim trees and other shrubbery on public and/or private property, at its own expense, to the extent necessary to protect its equipment and facilities and ensure public safety. Franchisee shall use proper arboricultural methods in tree trimming. The trimming of trees and shrubs on private property shall require the prior consent of the property owner, notwithstanding the fact that such trees and/or shrubs may be extending into public rights-of-way or present a threat to public safety. The City shall have the right to supervise and direct all tree-trimming work.
(j) Public Improvements. If the City decides to alter or change any Street, sidewalk, alley, or other public way, the Franchisee shall relocate its facilities and equipment to accommodate the public improvements. Such alterations and changes shall be paid by the Franchisee.
(k) Temporary Changes. The franchisee shall temporarily remove and/or reroute any or all of its equipment and facilities to accommodate public or private works, construction, house, or other building moving and movement of extra large truckloads, etc. The Franchisee shall be entitled to reasonable costs for such relocations from any private party not from any public entity.
(1) Identification of Construction Employees. All construction employees of the Franchisee and/or its subcontractors must carry tags or other means of identification, which are acceptable to the City.
(m) Notification of Construction. The Franchisee shall notify the City ten (10) days prior to the commencement of construction upon any block of any street. The Franchisee shall notify all property owners at least five (5) days, excluding weekends or holidays, prior to the commencement of construction, contiguous to their property, of the proposed construction and provide the name and telephone number of the Franchisee's employee capable of resolving complaints concerning the construction. The aforementioned notification shall be required during initial construction, rebuild, and/or during normal maintenance and repair of the System when other than normal day-to-day maintenance and repair operations are scheduled to take place, notwithstanding an occurrence of natural disaster or act of God in which immediate repair involving construction related procedures may be required on an emergency basis.
(n) Restoration of Private Property. The Franchisee shall restore all damage caused by the construction, operation, or maintenance of its System to private property, including landscaping. Notwithstanding any agreement it may have with any construction company, the Franchisee shall be primarily responsible for all damages.
(o) Reservation of Street Rights.
(1) Nothing in this Chapter shall be construed to prevent the City from constructing, maintaining, repairing or relocating sewers; grading, paving, maintaining, repairing, relocating and/or altering any Street; constructing, laying down, repairing, maintaining or relocating any water mains or other public utility's facilities; or constructing, maintaining, relocating, or repairing any sidewalk or other public way or work.
(2) If any property, equipment, or facilities of the Franchisee shall interfere with said projects, the City shall give the Franchisee thirty (30) days notice, notwithstanding cases of emergency, to remove, reroute, or replace the equipment, cables, or facilities so that the same shall not interfere with said public work and such action shall be paid for by the Franchisee.
(3) Nothing contained herein shall relieve the City from Liability arising out of negligence or out of failure to exercise reasonable care to avoid injury to the Franchisee's facilities while performing such work.
(p) Street Vacation or Abandonment. In the event any Street or portion thereof, used by the Franchisee shall be vacated by the City or the use thereof is discontinued by the Franchisee, the Franchisee shall pay to remove its facilities therefrom unless specifically permitted by the City to continue use of the same. In the event of failure, neglect, or refusal of the Franchisee, after thirty (30) days notice by the City to remove the facilities or to repair and/or restore the public right-of-way to a condition acceptable to the City, the City may do so at the expense of the Franchisee. The City shall be paid by the Franchisee as directed or collection may be made by any available remedy, including but not limited to withdrawal from the Security Fund.
(q) Other Equipment and Facilities. The System shall be designed and constructed to provide and facilitate all other equipment and facilities, including but not limited to, cablecast facilities, drops to governmental agencies and schools, character generators, local origination equipment and facilities, and other such equipment and facilities which may be included in the Franchise Agreement.
(r) Periodic Evaluation.
(1) The communications industry is a rapidly evolving industry which is undergoing many regulatory, technical, financial, and legal changes. Therefore, in order to exhibit a maximum degree of flexibility and to continue to provide the City with a state-of-the-art communications system which will continue to fulfill the needs of the community, the City and the Franchisee agree to periodic evaluations of the System. Such meetings may be requested by either the City or the Franchisee.
(2) At such meetings the City and the Franchisee shall discuss changes in cable television and communications technology, regulations, services and economics. The Franchisee shall inform the City of services which are technologically available and whether they are economically feasible to implement within the Franchise area.
(3) Topics which may be discussed shall include, but not be limited to, rates, channel capacity, System performance, programming, PEG access, municipal use of cable, subscriber complaints, judicial rulings, changes in FCC rules and regulations, and other topics the City or Franchisee may deem relevant to the improvement or advancement of communications services to the Franchise area.
(Ord. 2439. Passed 1-2-96.)
(Ord. 2439. Passed 1-2-96.)