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HomeMy WebLinkAboutOrdinance Book 18, Page 401, Ordinance Number 74-1-919401 ✓' ORDINANCE NO. 74-1-919 AN ORDINANCE AUTHORIZING A NON-EXCLUSIVE CABLE TELEVISION FRANCHISE IN THE CITY OF PADUCAH, KENTUCKY; PROVIDING FOR THE TERAT OF THE FRANCHISE, SELECTION OF THE FRANCHISEE, FRANCHISE PROVISIONS AND RESTRICTIONS, RATES AND CHARGES, FRANCHISE FEES; AND ESTABLISHING THE PADUCAH CABLE COMMUNICATIONS AUTHORITY. BE IT ORDAINED BY THE BOARD OF COMMISSIONERS OF THE CITY OF PADUCAH, KENTUCKY: SECTION I. SHORT TITLE. This ordinance shall be known as the Paducah Ordinance for Regulation of Cable Communications. SECTION II. DEFINITIONS. (1) "Access Channel" shall mean those channels which, by the terms of this ordinance or the franchise agreement, are required to be kept available by the franchisee for partial or total dedication to public access, educational access, local government access, or leased channels. (2) "Authority" shall mean the Paducah Cable Communications Authority provided for in this ordinance. (3) "Cable Communication System", "Cable System", "CATV" or "System" shall mean a system of coaxial cables or other electrical conductors and equipment used or to be used to originate or receive television or radio signals directly or indirectly off the air and to transmit them via cable to subscribers for a fixed or variable fee, including the origination, receipt, transmission, and distribution of voices, sound signals, pictures, visual images, digital signals, telemetry, or any other type of closed circuit transmission by means of electrical impulses, whether or not directed to originating signals or receiving signals off the air. (4) "Channel" means a band of frequencies in the electromagnetic spectrum, which is capable of carrying either one video signal, several audio signals, numerous digital signals, or some combination of such signals. (5) "City" shall mean the City of Paducah, Kentucky, and all the territory within its presently existing or future territorial corporate limits. Where appropriate, the term "City" shall also include its officers, employees and duly authorized representatives. and duly authorized representatives. (6) "City Manager" means the designated or acting City Manager of the City of Paducah, Kentucky. 402 (7) "Commissioners" or "Commission" shall mean the Board of Commissioners of the City of Paducah, Kentucky. (8) "Converter" means any electrical device which converts signal carriers from one frequency to another. (9) "Franchise" shall include both the franchise granted pursuant to this ordinance and any franchise agreement entered into between the City and Franchisee, and all rights, powers and privileges thereunder. (10) "Franchisee" shall mean and include all persons, natural or corporate, or any other entity having any rights, powers, privileges, duties, liabilities or obligations under this ordinance and the franchise agreement (herein collectively called the "Franchise"), and also all persons having or claiming any power or interest in or to the system, whether by reason of the franchise itself or any subcontract, transfer assignment, mortgage, pledge, hypothecation, security agreement, management agreement or operating agreement, or otherwise arising or created. (11) "Franchise Agreement" means that separate agreement by which the franchise is granted to the franchisee as required by this ordinance. (12) "Gross Subscriber Revenues" shall mean any and all compensation and other consideration in any form paid by a subscriber and received by the franchisee arising from the sale of its monthly services to its subscribers, provided, however, that revenue resulting from relocation charges, the sale of tangible personal property, pay cable revenues and advertising revenues shall not be deemed "Gross Subscriber Revenues" for the purpose of computing any franchise fees pursuant to the provisions of this ordinance. (13) "Non-exclusive Franchise" shall mean that the City specifically reserves the right to grant, at any time, such additional permits or franchises for additional cable communication systems as it deems appropriate. (14) "Public Agency" shall mean an agency which is supported wholly or substantially by public funds. (15) "Streets and Public Ways" means the surface of and the space above and below any public street, sidewalk. alley or other public way of any type whatsoever now or hereafter existing as such within the city. (16) "Subscriber" shall mean any person or organization whose premises are physically wired to receive any transmission from the system. (17) "Subscriber Service Drop" shall mean such extension wiring from the franchisee's distribution lines to a subscriber's building. (18) "User" denotes a person utilizing a system channel as a producer, for purposes of production and/or transmission of material, or as a subscriber, for purposes j iiof receipt of material. 403 SECTION 111. FRANCHISE GENERALLY (1) Necessity of Franchise. No person, natural or corporate, or any other entity, shall own or operate a CATV system or other system as defined herein, in the City of Paducah, except by franchise granted by the City, in the form of a franchise agreement between the City and the franchisee, which shall comply with all the specifications of this ordinance. (2) Contravention of Franchise. A breach by the franchisee or the franchise agreement, in addition to constituting a breach of contract, shall constitute a violation of this ordinance. The cost of any litigation incurred by the City to enforce this ordinance or the franchise granted pursuant hereto, or any franchise agreement, or in relation thereto, or in relation to the cancellation or termination of a franhcise, shall be reimbursed to the City by the franchisee. Such costs shall include, but not be limited to, filing fees, costs of depositions, discovery, and expert witnesses, all other expenses of suit, and a reasonable attorney's fee. SECTION FV. TERM, RENEGOTIATION PERIODS AND TERMINATION OF FRANCHISE (1) Term. No franchise granted hereunder or any renewal thereof, shall be for a term of more than fifteen years. A renewal may be granted not more than one (1) year prior to the expiration of any existing term. (2) Forfeiture of Franchise. In addition to all other rights and powers of the City by virtue of the franchise or this ordinance, the City may terminate and cancel the franchise and all rights and privileges of the franchisee thereunder in the event that the franchisee either: (a) Substantially violates any provision of the franchise or this ordinance, or any rule, order, or determination of the Commissioners made pursuant thereto, where such violation shall remain uncured for a period of thirty (30) days subsequent to receipt by franchisee of written notice of said violation, except where such violation is not the fault of the franchisee or is due to excusable meglect; or (b) Attempts to dispose of any of the facilities or property of its CATV business to prevent or hinder the City from purchasing same, as provided for herein; or (c) Attempts to evade any of the provisions of this franchise ordinance or the franchise agreement or practices any fraud or deceit upon the City. Such determination and cancellation shall be made by Ordinance of the Commissioners duly adopted after twenty (20) days' notice to the franchisee and shall in no way affect any of the City's rights under this franchise or any provision of law, provided, 404 however, that before the franchise may be terminated and cancelled under this section, the franchisee shall be provided with an opportunity to be heard at a public hearing before the Commissioners, upon ten (10) days' written notice to the franchisee of the time and place of the public hearing; provided further, that said notice shall affirmatively cite the reasons alleged to constitute a cause for revocation; and provided further, that notice of said public hearing shall be published in a local newspaper of general circulation at least five (5) days before the hearing. (3) Renegotiation Provision. The franchise shall provide for the following renegotiation provisions: (a) The City and the franchisee shall hold scheduled renegotiation sessions within thirty (30) days prior to the fifth and tenth anniversary dates of the franchisee's obtaining certification for the system from the Federal Communications Commission. All such renegotiation sessions shall be open to the public and will be announced by the City in a newspaper of general circulation at least five (5) days before each session. (b) Special Renegotiation Sessions. Special Renegotiation Sessions may be held at any time during the term of the franchise, provided that both the City and the franchisee shall mutually agree on the time, the place and the topics to be negotiated. All such renegotiation sessions shall be open to the public and announced in a newspaper of general circulation at least five (5) days before each session. (c) Topics to be Negotiated. The following topics shall be discussed at every scheduled renegotiation session: Service rate structures; free or discounted services; application of new technologies; system performances; services provided; programming offered; customer complaints; privacy in human rights; amendments to this ordinance; undergrounding progress; and judicial and FCC rulings. Topics in addition to those listed, may be added if agreed upon by both parties. Members of the general public may add topics either by working through the negotiating parties, or by presenting a petition. if such a petition bears the valid signatures of fifty or more qualified electors of the City, the proposed topic or topics shall be added to the list of topics to be discussed at the renegotiation session. (d) Required Financial Information. At all renegotiated periods, the franchisee shall provide the annual report for all years completed, containing full cash flow information. Supplemental financial information regarding the operations of the franchisee and the system shall be promptly supplied by the franchisee upon the request of the City (e) Factfinding and Mediation Permitted. Any matter which is disputed during a renegotiation session may be submitted to factfinding or mediation, at the election of one of the parties, as provided in the section herein entitled "Resolution of Disputes". 405 (f) Dispute Over Financial Conditions. Should a dispute arise over whether the financial condition of the franchisee as reported pursuant to this section is in accord with generally accepted accounting practices and principles as practiced in the CATV industry, then such dispute shall be submitted to factfinding or mediation as provided in the section entitled "Resolution of Disputes", (g) Services of Consultants Permitted. The City, at its election, may utilize the services of a consultant to gain additional information for use during the renegotiation sessions. The fees of such consultant must be reasonable and shall be borne equally by the City and the franchisee. - (h) Disclosure After Renegotiation Session. The City shall, at the conclusion of all renegotiation sessions, issue a public statement announcing all agreements that were reached by the parties as a result of the renegotiation session. SECTION V. SELECTION OF FRANCHISEE. (1) Request for proposal. In selecting a franchisee pursuant to this ordinance, the City shall prepare a request for proposal to seek bids for a Cable Communications System to be established under franchise by the City. This request for proposal shall contain , among other things, detailed information and instructions relating to the preparation and filing of proposals; technical standards regarding the installation, operation and maintenance of a CATV system under City franchise; and the criteria to be used in evaluating applicant proposals, (2) Criteria for Selection of Franchisee. Applicants shall be evaluated according to the following criteria: (a) Non -Profit Ownership. A preference shall be given to applicants for franchise representing non-profit organizations. (b) Service Priorties. A preference shall be given to system capability in terms of no -cost telecasting production facilities and service available to municipal and educational institutions and community groups and individuals. Preference shall be given to system provisions for two-way, non -voice communications. Preference shall be given to the maximum total channels provided by the system. (c) Installation Plan. Preference may be given to installation plan that would provide flexibility needed to adjust to new developments, maintenance practices, and services that would be available to the subscriber and the community immediately and in the future. (d) Rate Schedule. Preference may be given to applicants with the most reasonable installation and subscriber rate schedule. (e) Financial Soundness and Capability. The evidence of financial ability required in the applicant's proposal shall be such as to assure ability to complete the entire 406 system within a minimum of two years of the date the franchisee receives FCC Certificate of Compliance and to operate a fiscally sound system throughout the term of the franchise. (f) Demonstrated Experience in Operating a CATV System Under City Franchise. Preference shall be given upon satisfactory evidence of the applicant's experience in operating a CATV System under City franchise, where such evidence would show or tend to show or confirm the ability of the applicant to furnish sufficient and depend- able service to the potential public and users. (g) Franchise. No past or present franchisee of the City shall have preference among applicants. (h) Educational. A preference shall be given to a system which presents a program whereby the Paducah Public Schools may benefit, utilize and develop educational programs for students and subscribers. (4);lRe'erings; "Noboes and Publications. The Commissioners may award the franchise to an applicant only after a public hearing on the application and proposal, notice of which hearing shall be published in a local newspaper of general circulation at least twenty (20) days before the date of the hearing. Any franchise that is granted may be authorized by an ordinance of the Board of Commissioners of the City of Paducah, Kentucky, which ordinance shall be thereafter published in the manner prescribed by law in a local newspaper of general circulation. SECTION VI. FRANCHISE PROVISIONS AND RESTRICTIONS. (1) All franchises granted pursuant of this ordinance shall be subject to, and shall expressly indicate that they are subject to, the following provisions: (a) Any franchise granted hereunder shall be subject to the right of the City, by appropriate action of its Commissioners, to revoke the franchise for cause shown pursuant to the provisions of this ordinance or the applicable law of the Commonwealth of Kentucky or the United States of America. (b) Any franchise granted hereunder shall be subject to all applicable provisions of city ordinances, and any amendments thereto. (c) Any franchise granted hereunder shall be subject to the right of the City: (i) To repeal the same for misuse, nonuse, or the failure to comply with the provisions of this ordinance, or any other local, state or federal laws, or Federal Communication Commission rules or regulations. (ii) To require proper and adequate extensions of the system and service and maintenance thereof at the highest practicable standard of i efficiency; the City shall require extension of subscriber service to all 407 residents of the city within twenty -Cour (24) months of franchisee's receipt of the Federal Communication Commission's Certificate of Compliance, and the City shall further require extension of subscriber service to all residents of newly developed residential or business areas within the corporate limits of the city and within twelve (12) months after the completion of their construction and the City shall further require the extension of the system to all newly acquired or annexed territory within twelve (12) months after the adoption of the ordinance acquiring the new territory. (iii) To establish reasonable standards of service and quality of products, and to prevent unjust discrimination in service or rates. (iv) To require continuous and uninterrupted service to the public in accordance with the terms of the franchise throughout the entire period thereof. (v) To impose such other requlations as may be determined by the Commission or the Authority to be conducive to the safety, welfare, morals and accommodation of the public. (vi) To control and regulate the use of its streets, alleys, bridges and public places and the space above and beneath them. Every franchisee shall pay such part of the cost of improvement or maintenance of streets, alleys, bridges and public places as shall arise from its use thereof and shall protect and save the City harmless from all damages arising from said use. The franchisee may be required by the City to permit joint use of its property and appurtenances located in the streets, alleys and public places of the city, by the City and other utilities insofar as such joint use may be reasonably practicable and upon payment of reasonable rental therefor; provided, that in the absence of agreement, upon application by any franchisee, or the City, the dispute may be submitted and resolved as provided in the section entitled "Resolution of Disputes". (vii) Through its appropriately designated representatives, to inspect all construction, relocation or installation work performed subject to the provisions of the franchise and this ordinance, and make such other inspections as it shall find necessary to insure compliance with the terms of the franchise, this ordinance, and other pertinent provisions of law. (viii) At the expiration of the term for which this franchise is granted or upon the termination and cancellation as provided herein, to require the franchisee to remove, within eighteen months, at its own expense, any and all provisions of the CATV System from the public ways within the city. (ix) To require the franchisee to pay the cost of newspaper publication of this ordinance and any amendments thereto. 408 (2) Franchise Agreement. (a) The applicant awarded a franchise by ordinance shall execute a franchise agreement, agreeing to the terms and provisions of this ordinance, the franchise agreement and request for proposal. In addition, the franchisee shall, within sixty (60) days after the execution of the franchise agreement, submit his filing of an application for Certificate of Compliance with the Federal Communications Commission. Failure of the selected applicant to execute such an agreement within thirty (30) days from the City's demand therefor or failure to file an application for a Certification of Compliance within the time herein required, shall be grounds for immediate revocation of any rights the applicant may have in the franchise and forfeiture of the applicant's bid bond. (b) In addition to those matters required elsewhere in this ordinance to be included in the franchise agreement, it must contain the following express representations of the franchisee that: (i) It accepts and agrees to all the provisions of this ordinance and any supplementary specifications, as to construction, technical standards, operation, maintenance and rate structures, which the City may include in the franchise agreement. (ii) It has examined all the provisions of this ordinance and waives all claims that any provisions hereof are unreasonable, arbitrary or void. (iii) It recognizes the right of the City to make reasonable amendments to the franchise ordinance during the term of the franchise upon thirty (30) days' notice to the franchisee, or without notice with respect to an emergency amendment. It further recognizes and agrees that the City shall in no way be bound to renew the franchise at the end of any franchise term. (iv) It recognizes and agrees that it may be considered as a licensee for the purposes of this ordinance. (v) It expressly recognizes and agrees that it has considered all the provisions of this ordinance in regard to renegotiation and "Resolution of Disputes" and agrees to be bound by same throughout the term of the franchise. (c) No franchise shall be exclusive. (d) Every franchise agreement shall specifically set forth the specific standards which the franchisee must maintain in respect to signal quality requirements and technical standards of construction, operation and maintenance of the system. (e) The franchise agreement shall contain such further conditions or provisions as may be included in the request for proposal and/or negotiated between the 409 City and the franchisee, except that no such conditions or provisions shall be such as to conflict with any provisions of this ordinance or any other law. In the case of such conflict, or ambiguity between any terms or provisions of the franchise agreement and this ordinance, the words of this ordinance shall be deemed to control. (3) Number of Channels. The franchisee's distribution system shall initially be capable of carryigg at least twenty (20) channels of television breadth, on a dual trunk system, which shall contain at a minimum one active trunk, one inactive trunk and a single feeder system with a set top converters. The set top converter shall be provided by the franchisee for a reasonable initial (one time) charge, to enable subscribers to receive the additional channel capacity. The franchisee may also require a refundable deposit not to exceed the franchisee's actual cost of the converter. The aforesaid refundable deposit may be required by the franchisee for each set top converter provided and the maintenance of each such set top converter shall be the sole responsibility of the franchisee without cost to the subscriber. (4) State of the Art. Each franchisee shall upgrade its facilities, equipment and service so that its system is as advanced as the current state of production technology will allow. Each franchisee shall install additional channel capacity as required to keep channel capacity in excess of the demand therefor by users. At all times, each cable system shall be no less advanced than any other system of comparable size, excepting only those systems which are experimental, pilot, or demonstration. The Authority shall order a franchisee to comply with this section in case of specific violations, which it may investigate upon complaint or upon its own motion. (5) Use of Channels. (a) In conformance with Federal Communication Commission rules and regulations, certain of the franchisee's channels shall be dedicated as educational, govern- mental and public access channels. (b) The franchisee shall provide not less than one (1) access studio in Paducah, which studio shall be equipped to cable -cast or video-tape programs simultaneously for use in producing programs for access channels, and shall include cameras, slide and film chain, portable cameras and recorders, and other appropriate equipment to carry out the full purpose of such type studio. The aforesaid studio and equipment shall be equipped for color telecasting. Cost of maintenance of the studio and required equipment shall be borne by the franchisee. Provided, however, that the franchisee may charge a which shall be approved by the Authority, reasonable rate/for the use of said equipment tis35A13:xil�pr7�zRdab6kRhazkom§kXx and which shall further provide and give preference to non-commercial users. 410 (c) The franchisee is encouraged to employ a program and production consultant to promote public use of the access channels and to advise such public users. Provided, however, in the event the franchisee does not employ such consultant then it shall, upon request, make available without charge to non-commercial users the necessary personnel to assist them in the use of the access programming facilities. (6) Public Service Installations. (a) The franchisee shall, without charge for installation, maintenance or service, make single installations of its standard community antenna service facilities at City Hall, the Paducah Public Library, each fire and police station, each public and private school within the city, including the Paducah Community College. Such installations shall be made at such reasonable locations as shall be requested by the respectivetul its(tif government or educational institutions. Any charge for relocation of such installation shall, however, be charged at actual cost. Additional installations at the same locationsha'lllbe made at cost. No monthly service charges shall be made for distribution of the franchisee's signals within such publicly owned buildings. (b) The franchisee shall, if requested by the City, without charge for installation, maintenance or service, make all installations of its standard community antenna service facilities at each unit of City operated housing projects and City housing programs for low and moderate income families. Any charge for relocation of such installations shall, however, be charged at actual cost. Additional installations at the same location may be made at cost plus ten percent. The franchisee shall be permitted to charge monthly service charges for the distribution of the franchisee's signals to each such unit subscribing provided; however, such units shall receive a one-third discount of the prevailing monthly rate. The City shall have the right to order the termination of said discount and permit the charging of the full monthly rate should it desire. (7) Other Business Activities. Subject to the right of the Authority to change this policy if it deems such policy is necessary, the franchisee hereunder nor any employee, officer or shareholder of the franchisee shall engage in the business of selling, repairing or installing television receivers, radio receivers or accessories for such receivers within the City of Paducah during the term of this franchise, and the franchisee shall not allow any of its employees, officers or shareholders to so engage in any such business except upon application to I and approval by the Authority; provided, however, that nothing herein shall be deemed to prohibit franchisee, at customers request and without payment, from examining and adjusting the customer's receiver set to determine whether complaints originate in said set 411 or in franchisee's system. The franchise granted pursuant hereto authorizes only the operation of the system as provided for herein, and does not take the place of any other franchise, license or permit which might be required by law or the franchise. (8) Interconnections. The franchisee shall, at the request of the Authority, interconnect its cable system with all other contiguous cable systems, and the franchisee may interconnect with any other system or service. Such interconnection shall be made within ninety (90) days of a request made by the Authority. For good cause shown the Authority may grant extensions of time to comply with the requirements. In the event the franchisee disagrees shall with the Authority's request then the dispute may be submitted and resolved as provided hei in the section entitled "Resolution of Disputes." (9) Construction Standards and Technical Requirements. (a) All of the franchisee's plant and equipment, including but not limited to, the antenna site, head end, and distribution system, towers, house connections, 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 pole - line construction crews and so as not to endanger or interfere with the safety of any persons or property or to interfere with improvements the municipality may deem proper to make, or to interfere in any manner with the rights of any property owner, or to unnecessarily hinder or obstruct pedestrian or vehicular traffic on municipal properties. (b) All of the franchisee's system, including all plant and equipment and all construction shall meet all relevant and applicable specifications as set forth in the "Technical Standards and Specifications: Ordinance Supplement Section VII" as copyrighted in 1973 by Cable Television Information Center, The Urban Institute. All relevant and applicable provisions of the said "Technical Standards and Specifications: Ordinance Supplement Section VII" is hereby incorporated in this ordinance by reference thereto the same as though fully set out herein. The aforesaid Technical Standards and Specifications shall include, but not be limited to the following: (i) Alethods of construction, installation, and maintenance of the City's cable television system shall comply with the National Electrical Safety Code, National Bureau of Standards Handbook 81 (part 2), National Bureau of Standards, United States Department of Commerce. November 1, 1961, to the extent that such Code is consistent with local law affecting the construction, installation, and maintenance of electric supply and communications lines. To 412 the extent that such Code is inconsistent with other provisions of this franchise or with local law, the latter shall govern. (ii) Any tower constructed for use in the City's cable television system shall comply with the standards contained in Structured Standards for Steel Antenna Towers and Antenna Supporting Structures, EIA Standards RS -222-A as published by the Engineering Department of the Electronic Industries Association, 2001 Eye Street, N. IN., Washington, D. C. 20006. (iii) Installation and physical dimensions of any tower constructed for use in the City's cable television system shall comply with all appropriate Federal Aviation Agency regulations, including, but not limited to, Objectives Affecting Navigable Airspace, 14 C.F.R. 77.1 at seq., February 1965. (iv) Any antenna structure used in the City's cable television system shall comply with Construction, Barking, and Lighting of Antenna Structure, 47 C.F.R. 17.1 et seq., September 1967. (v) All working facilities and conditions used during construction, instal- lation and maintenance of the City's cable television system shall comply with the standards of the Occupational Safety and Health Administration. both State and Federal. (vi) Each cable distribution system in the public streets shall comply with all applicable laws and ordinances and governmental regulations regarding clearance above ground. (vii) Each cable distribution system required to go in or under the public rights of way including, without limitation, streets, sidewalks, alleys, and ease- ments, shall comply with all applicable laws, ordinances, and governmental regulations. (viii) The franchisee shall conduct an on-site signal survey before applica- tion is made to the Federal Communications Commission for a certification of compliance to determine optimum selection of tower and antenna locations and shall provide the results and information therefrom to the City. (ix) The Franchisee shall comply fully with the rules and standards for cable television operations as adopted by the Federal Communications Commission. (x) The Franchisee shall comply fully with the rules and regulations contained and promulgated within this Ordinance. Where conflict occurs between the provisions herein contained and those of FCC. the more restrictive shall apply to said Franchisee. ! 413 (xi) The cable system shall meet all performance criteria contained in the aforesaid "Technical standards and Specifications, and specified over the ambient temperature range prevailing in the franchise area from the normal daily minimum temperature in February to the normal daily maximum temperature in August. (3di) when there have been similar complaints made, or where there exists other evidence, which, in the judgment of the City, casts doubt on the reliability or quality of cable service, the City shall have the right and authority to compel the Franchisee to test, analyze and report on the performance of the system. Such test or tests shall be made, and the reports of such test or tests shall be delivered to the City no later than 14 days after the City formally notifies the Franchisee. The City's right under this provision shall be limited to requiring tests, analyses, and reports covering specific subjects and characteristics based on said complaints or other evidence when and under such circumstances as the City has reasonable grounds to believe that the complaints or other evidence require that tests be performed to protect the public against substandard cable service. Said tests and analyses shall be supervised by a registeres pro- fessional engineer, not on the permanent staff of the Franchisee, and selected jointly by the City and the Franchisee. The aforesaid engineer shall sign all records of special tests and forward to the City such records with a report interpreting the results of the test and recommending actions to be taken by the City. (xiii) Should any of the following occur, the Franchisee must notify the City with particulars: -addition to, deletion of, or change in received channel -addition to, deletion of, or change in distributed channel or in channel conversion -change in location of head end or antenna sites -addition to or change in location of centers for origination of programs, and the installation of bi-directional facilities or additional lines to make connection to the headend -interconnection with other cable systems. (xiv) The signal to echo ratio for locally receivable signals should be at least 40 dB for echoes) that are displaced by one microsecond or more. In the event that a system maintaining the aforesaid picture quality standard is not feasible, a full explanation for the reasons for the failure to meet the aforesaid standards must be filed with the franchisee's bid application and also filed again with the Authority prior to the date of commencing construction. The aforesaid explanation must also give alternatives 414 that the franchisee shall propose in order to insure that his proposed system will not permit echoes, ghosting, double images or similar signal problems. Written approval of the City must be received in order for the franchisee to construct a system which dc not maintain a signal to echo (es) ratio for locally receivable signals at 40 dB for echo( that are displaced by one microsecond or more. (c) Any opening or obstructions in or disturbances of the streets, public ways, or other municipal properties made by the franchisee in the exercise of its rights under a franchise agreement shall be done in compliance with all applicable ordinances of the City and shall be approved in advance by the City Engineer. Further, the City shall require franchisee to install all the cable system underground in the city where other public utilities have been or will be installed underground. (d) The franchisee shall at its expense, protect, support, temporarily disconnect, relocate in the same street or other public place or municipal property, or remove from the street or other public place or municipal property any property of the franchisee when required by the Authority or the City Manager, or his designee by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains or water pipes, power lines, signal lines and tracks or any other types of structures or improvements by public agencies. (e) The franchisee shall, on request of any private party holding an appropriate permit issued by the City, temporarily raise or lower its lines to permit the moving of the vehicles, building or other structure, and the actual expense of same shall be paid, in advance, by the party requesting the same. (f) Upon failure of the franchisee to commence, pursue or complete any work required by law or by the provisions of this franchise to be done in any street or other public place or municipal property, within the time prescribed, and to the satisfaction of the Authority, or the City Manager or his designee, the City may, at its option cause such work to be done and the franchisee shall pay the City the cost thereof in the itemized amount reported by the City to the franchisee, within thirty days after receipt of such itemized report. (g) Prior to the franchisee's commencing to attach wire, cable coaxial cable, or other fixtures and appurtenances to poles or towers located within the city, it shall execute license agreements for pole attachments with the appropriate utility and each Iisuch license agreement for pole attachments must provide a hold harmless and indemnity + clause to the City. I (10) Buildings, Apartments. (a) The subscriber rates and charges imposed by the franchisee with respect 415 to service to multi -family units shall not be increased or affected, either directly or indirectly, by reason of any payment or payments which the franchisee may make to the owner of any multi -family unit or any other person for the privilege of installing service of access to such multi -family units, (b) In determining the number of equivalent subscribers to a cable television system, where the system offers bulk rates to multi -outlet subscribers, such as apartment houses or motel operators, each bulk -rate contract is viewed as a number of subscribers to be calculated by dividing the total annual charge for the bulk -rate contract by the system's basic annual subscription rate for an individual household. (Thus, for example, if a cable television system charges an apartment house operator $1000 a year for a bulk -rate contract and charges individual households a basic rate of $50.00 per year, the bulk -rate contract is counted as 20 subscribers (i.e., 1000 divided by 50 = 20)). Where a variety of "annual subscription rates" for individual households exists (e.g., $50 per year, if paid in one sum, or $00 per year, if paid on a per -month basis), the rate used in the subscriber formula should be the lowest annual rate which is offered to individual sub- scribers ($50 here). Likewise, if the bulk -rate contract is on a monthly basis, it should be divided by the lower monthly rate which is offered. In the preceding example, a $50 per year charge should be viewed as a charge of $4.17 per month. (11) Repair. Any damage caused to the property of building owners or users, or any other person by the franchisee's negligence shall be repaired fully by the franchisee at the franchisee's sole expense. (12) Removal of Facilities Upon Request. Upon termination of service to any subscriber, the franchisee shall promptly disconnect and remove all of its facilities and equipment from the premises of such subscriber upon his written request. The franchisee shall not be permitted to collect any fee or charge in regard to the aforesaid disconnecting. (13) Right of City to Purchase CATV System. Upon expiration of the term of the franchise, or upon any other termination thereof, as provided for herein, or by law, or upon receipt of application for prior approval of acquisition or transfer as set forth in Section 14 (c) below, the City, at its selection, and upon payment to the franchisee of a price equal to the fair market value of the system, shall have the right to purchase and take over the system. The above price shall not include, and the franchisee shall not receive anything for the valuation of "Good Will" or of any right or privilege under this franchise. However, in determining fair market value, salvage value, depreciated book value, and replacement costs of the system may be 416 considered, and further, in the event of dispute the matter, at the option of the City, may be submitted to arbitration for determination as provided in the section herein entitled "Resolution of Disputes." Upon the exercise of this option by the City and its service of an official notice of such action upon the franchisee, and upon payment of the purchase price, the franchisee shall immediately transfer to the City possession and title to all facilities and property, real and personal, of the CATV business, free from any and all liens and encumbrances not agreed to be assumed by the City in lieu of some portion of the purchase price set forth above, and the franchisee shall execute such warranty deeds or other instruments of conveyance to the City as shall be necessary for this purpose. The franchisee shall make it a condition of each contract entered into by it with reference to its operation under this franchise that the contract shall be subject to the exercise of this option by the City and that the City shall have the right to succeed to all privileges and obligations thereof upon the exercise of such option; provided, however, that the City shall have the right unilaterally to increase the purchase price provided for above should it so elect, by an ordinance amendatory hereto, but such right shall not be construed as giving the franchisee a right to any price in excess of that set forth above. (14) Transactions Affecting Ownership or Control of Franchise Facilities. (a) To protect the interest of the City under any franchise granted pursuant to this ordinance, and in order that the City may exercise its option to take over the facilities and property of the system as authorized herein upon expiration or forfeiture or revocation of the rights and privileges of the franchisee, the franchisee shall not make, execute or enter into any deed, deed of trust, mortgage, contract, conditional sales contract, or any loan, lease, pledge, sale, pole agreement or any other agreement concerning any of the facilities or property, real or personal, of the system, where such transactions would be materially adverse to the rights of the City under any franchise granted pursuant to this ordinance, if consumated without adherence to the provisions of sub -section (f) and (ii) hereinafter set forth. (i) without the express approval of the Authority, which shall not be unreasonably withheld, and (ff) without a written assent filed with the Authority binding upon the person in whom any right, power, privilege, duty, title, interest, claim or demand in or to the franchise or the system is created or vested, to the effect that such right, power, privilege, duty, title, interest, claim or demand is and shall be held and exercised subject to all the terms and provisions of the franchise, including this ordinance. The Authority may require such written assent to be contained in any instrument or document creating or vesting such right, power, privilege, duty, title, interest, claim or demand. 417 Provided, however, that this subsection shall not apply to the disposition or worn out or obsolete facilities or personal property in the normal course of carrying out the CATV business. The Authority shall determine what transactions may be adverse to the rights of the City if consummated without adherence to these provisions. (b) Prior approval of the Commission shall be required where ownership or control of more than twenty-five percent of the right or control of or interest in the franchise is acquired by a person, corporation, firm, or group of persons acting in concert, none of w already own or control twenty-five percent or more of such right or control or interest, singularly or collectively. The Commission shall receive and consider a written report from Authority concerning such a transfer prior to approving or rejecting said transfer. (c) No franchise granted hereunder may be transferred unless such transfer is approved by the Commission, by ordinance, after public hearing. The Commission shall receive and consider a written report from the Authority concerning such a transfer prior to approving or rejecting said transfer. (d) By its acceptance of the franchise the franchisee specifically concedes and agrees that any acquisitions or transfers set forth in Sub -sections (b) and (c), above, without prior approval of the Commission, as may be required, shall constitute a violation of the franchise and this ordinance by the franchisee. (15) Receivership, Foreclosure, Etc. The franchise herein granted shall be the option of the Commission, or its designee, cease and terminate ninety days after the appointment of a receiver or receivers or trustee or trustees to lake over and conduct the business of the franchisee whether in a receivership reorganization, bankruptcy or other action or proceeding unless such receivership or trustee shall have been vacated prior to the expiration of said ninety days, or unless: (a) Such receivers or trustees shall have, within ninety days after their election or appointment, fully complied with all the terms and provisions of this ordinance and the franchise granted pursuant hereot, and the receivers or trustees within said ninety days shall have remedied all defaults under the franchise; and (b) Such receivers or trustees shall, within said ninety days, execute an agreement duly approved by the Court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the franchise herein granted. In the case of a foreclosure or other judicial sale of the plant, property and equipment of the franchisee, or any part thereof, including or excluding this franchise, the Commission or its designee, may serve notice of termination upon the franchisee and the successful bidder at such sale, in which event the franchise herein granted and all rights and privileges of franchisee hereunder shall cease and terminate thirty days 918 after service of such notice, unless: (f) The Commission shall have approved the transfer of this franchise, as and in the manner in this ordinance provided; and (ii) Unless such successful bidder shall have covenanted and agreed with the City to assume and be bound by all the terms and conditions of this franchise. (16) City's Right of Intervention. The franchisee shall not oppose intervention by the City in any suit or proceeding to which the franchisee is a party. (17) Prohibition of Discriminatory or Preferential Practices. The franchisee shall not, unless expressly authorized by the provisions of this ordinance, in its rates or charges, or in making available the service or facilities of its system, or in its rules or regulations, or in any other respect, make or grant preferences or advantages to any subscriber or potential subscriber to the system, or to any user or potential user of the system; and shall not subject any such persons to any prejudicial or disadvantage. This provision shall not be deemed to prohibit promotional campaigns to stimulate subscriptions to the system or other legitimate uses thereof; nor shall it be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification shall be entitled. (18) Open Access. The entire system of the franchisee shall be operated in a manner consistent with the principle of fairness and equal accessibility of its facilities, equipment, channels, studios and other services to all citizens, businesses, public agencies or other entities having a legitimate use for the system; and no one shall be arbitrarily excluded from its use; allocation of the use of said facilities shall be made according to the rules or decisions of regulatory agencies affecting the same, and where such rules or decisions are not effective to resolve a dispute between conflictive users or potential users, the matter shall be submitted for resolution by the Authority. (19) Maintenance Personnel and Service. The franchisee shall maintain a force of one or more resident agents or employees at all times and shall have sufficient employees to provide safe, adequate and prompt service of its facilities. In addition, the franchisee shall maintain a convenient office in the city during normal business hours, for the receipt of sums due by its i subscribers; shall provide for regular billing of accounts; and shall further maintain a maintenance service which shall be promptly available to subscribers twenty-four hours a day, with a listed telephone number. 419 (20) Emergency Use of Facilities. The franchisee shall, in the case of any emergency or disaster, make the entire system available without charge to the City or to any other governmental or civil defense agency that the City shall designate. (21) Filings and Communications with Regulatory Agencies Copies of all petitions, applications and communications submitted by the franchisee to the Federal Communications Commission, Securities Exchance Commission or any other Federal or State regulatory commission or agency having jurisdiction with respect to any matters affecting CATV operations authorized pursuant to this franchise, shall also be simultaneously submitted to the Authority. (22) Permits and Authorizations. The franchisee shall file for a certificate of compliance with the F.C.C, within sixty (60) days after receiving the franchise award. The franchisee shall diligently apply for all other necessary permits and authorizations required in the conduct of its business, and shall diligently pursue the acquisition thereof, including necessary pole attachment contracts, and necessary authorizations from the Federal Aviation Agencies to construct such receiving antenna towers as may be required, and any other necessary authorizations or waivers from the Federal Communications Commission, when any such permit, authorization, contract or waiver is obtained a copy thereof shall be promptly filed by the franchisee with the Authority. After the franchisee has diligently pursued the acquisition of necessary pole attachments or other necessary easements, where such necessary contracts have not been entered or easements obtained after reasonable period of time, the franchisee may submit the matter to the Authority and the Authority will thereupon provide assistance that may be necessary to arrive at the solution so that the scheduled construction of the system will not be impaired. If the matter cannot be resolved by the Authority, referral shall be made to the Commission to determine whether the City shall acquire the necessary rights and easements by condemnation. If it does become necessary for the City to exercise its rights the franchisee shall bear all costs in regard to litigation or acquisition. (23) Reports. (a) Each franchisee shall file with the Authority quarterly reports of gross subscriber revenues signed by a certified public accountant and prepared in accordance with regulations of the Authority. Each franchisee shall also allow the Authority to audit all of its accounting and financial records upon reasonable notice; to make available all the plans, contracts, engineering data, statistical data, customer and service records relating to its system and to all other records required to be kept hereunder; and at all times maintain complete and accurate books of account, records of its business and operation, and all other records required by this ordinance or the franchise. 420 (b) Each franchisee shall file annually with the Authority an Ownership Record, indicating all persons who at the time in the preceding year did control or benefit from an interest in the franchisee of one percent or more and all creditors secured or unsecured in the excess of $1,500.00. (c) Each franchisee shall also file annually with the Authority copies of all rules, regulations, terms and conditions which it has adopted for the conduct of its business. (24) Emergency Alert. The system shall be engineered to provide an audio alert system to allow authorized city officials to automatically override the "audio" signal on all channels and transmit and report emergency information. In the event of any such use by the City, the City will hold harmless and indemnify the franchisee from any damages or penalties resulting from the use for this purpose. (25) Safety, Nuisance, Requirements. The franchisee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public. (26) Rights of Individuals Protected. (a) Discriminatory practices prohibited. The franchisee shall not deny service, deny access, or otherwise discriminate against subscribers, programmers, or general citizens on the basis of race, color, religion, national origin or sex. The franchisee shall strictly adhere to the equal employment opportunity requirements of the FCC, as expressed in Sections 76.13(a) (8) and 76.311 of Chapter 1 of Title 47 of the Code of Federal Regulations. The franchisee shall comply at all times with all other applicable Federal, State, County and City laws and all executive and administrative orders relating to non-discrimination. (b) Cable Tapping Prohibited. Neither the franchisee nor any other person, agency, or entity shall tap or arrange for the tapping of any cable, line, signal in -put device or subscriber outlet or receiver for any purpose whatsoever. (c) Cable Monitoring Prohibited. Neither the franchisee, nor any other person, agency, or entity shall monitor or arrange for the monitoring, of any cable, line, signal input device, or subscriber outlet or receiver for any purpose whatsoever, without the specific written authorization of the subscriber, and the Authority. The Authority shall not grant such authorization without having a public hearing on the subject which shall be 1 announced by written notice in a newspaper of general circulation at least ten days before the date of the hearing. (d) Privacy and other Human Rights. The franchisee and the Authority 421 shall maintain constant diligence with regard to possible abuses of the right of privacy or other human rights of any subscriber, programmer, or general citizen resulting from any device or signal associated with the cable communications system. The possibility of such abuse shall be discussed at every scheduled renegotiation session. (e) Permission of Property Owner Required. No cable, line, wire, amplifier, converter or other piece of property owned by the franchisee shall be installed by the franchisee without first securing written permission of the owner of any property involved. If such permission is later revoked, whether by the original or subsequent owner, the franchisee shall remove forthwith all of its equipment, promptly restoring the property to its original condition. (f) Sale of Subscriber Lists Prohibited. The franchisee shall not sell j or otherwise make available lists of the names and addresses of any of its subscribers, or any list which identifies by name, address, subscriber viewing habits, to any person, agency, or entity, for any purpose whatsoever, without the specific authorization of the Authority. The Authority shall not grant such authorization until after having a public hearing which shall be announced by written notice published in a newspaper of general circulation at least ten days before the date of the hearing. (27) Resolution of Disputes. (a) Intent. It is the intent of the City to provide for the orderly resolution of any controversy or dispute between the franchisee and the City arising out of the enforcement or interpretation of any provision of this ordinance, the franchise agreement, or any rule, regulation or procedure relating to cable communication matters. Factffnding and mediation shall be the means of resolving the great majority of such controversies or disputes. Only those matters specifically designated as arbitrable may be submitted to that process for binding resolution. None of these methods, however, shall be the first resort of the parties, but shall be undertaken only after a reasonable time has been taken to reach agreement by negotiation. (b) Factfinding. Any controversy or dispute, upon the election of either the City or the franchisee shall be submitted to an expert individual acceptable to both parties for an investigation of the facts and a report thereof. Such factfinding shall be for the purpose of developing better information for the use of both parties and shall not be binding on either party. All fees and other expenses resulting from such factfinding shall be equally borne by both the City and the franchisee. (c) Mediation. Any controversy or dispute, upon the election of either the City or the franchisee, shall be submitted to an expert individual acceptable to both 422 the franchisee and the City for the purpose of facilitating discussion and receiving new perspectives on the issues and new proposals for compromise. Such mediation shall not be binding on either party. All fees or expenses resulting from such mediation shall be equally borne by both the City and the franchisee. (d) Arbitration. Only those matters which are expressly arbitrable under the provisions of this ordinance may be submitted for arbitration. Such matters shall always include disputes over: (i) The book value of the system (if) The fair value of the system (iii) Interconnection, and (Iv) Revocation of the franchise. Arbitrable matters may be submitted to a single expert individual, if both parties agree to do so. Otherwise, arbitrable matters shall be submitted pursuant to the provisions of KRS Chapter 417, "Arbitration and Award". All fees or other expenses resulting from such arbitration shall be paid by the City and the franchisee as hereinafter provided. (e) tees and Expenses. The fees of single experts and arbiters shall be jointly borne by the franchisee and the City. The fee of an arbiter who represents one of the parties shall be borne by that party. The fee for the umpire shall be jointly borne by the franchisee and the City. The expenses of factfinding and mediation shall be jointly borne by the franchisee and the City. The expenses of arbitration shall be borne as determined by the arbitration panel in its award of findings, but in no event shall the City be obligated for more than one-half of the expenses. (28) New Developments. The Commission may amend this ordinance or the franchise whenever necessary to enable the franchisee to take advantage of any developments in the field of transmission of communication signals which will afford it an opportunity to more effectively, efficiently or economically serve its customers; provided, however, that this section shall not be construed to require the City to make any such amendment. (29) Insurance; Bonds and Indemnification. (a) Liability and Indemnification of City. The franchisee shall indemnify and hold harmless the City at all times during the term of the franchise granted hereby and specifically agrees that it will pay all damages and penalties which the City may be legally required to pay as a result of granting the franchise. Such damages and penalty shall include, but not be limited to, damages arising out of copyright infringements, and other damages arising out of the installation, operation or maintenance of the CATV system 423 authorized herein, whether or not any act or omission complained of is authorized, allowed, or prohibited by the franchise. In the case suit shall be filed against the City either independently or jointly with the franchisee to recover for any claim or damages, the franchisee, upon notice to it by the City shall defend the City against the action and, in the event of a final judgment being obtained against the City, either independently or jointly with the franchisee, solely by reason of the acts of the franchisee, the franchisee will pay said judgment and all costs and hold the City harmless therefrom (b) Faithful Performance Bond. Upon the effective date of the franchise agreement, the franchisee shall furnish proof of the posting of a faithful performance bond running to the City with good and sufficient surety approved by the City, in the penal sum of $100, 000. 00, conditioned that the franchisee shall well and truly, observe, fulfill and perform each term and condition of this ordinance and the franchise agreement and that in the case of any breach of condition of the bond, the amount thereof shall be recoverable from the Principal and Surety thereof by the City for all damages resulting from the failure of the franchisee to well and truly observe and perform any provisions of this ordinance or the franchise agreement. Such bond shall be maintained by the franchisee throughout the term of this permit. Written evidence of the payment of required payments shall be filed and maintained with the City Manager and the Authority. (c) Insurance. The franchisee shall be required to maintain insurance in such forms and in such companies as shall be approved by the City, such approval not to be unreasonably withheld, to protect the City and the franchisee from and against any and all claims, injury or damage to persons or property, both real and personal, caused by the construction, erection, operation or maintenance of any aspect of the system. The amount of such insurance shall not be less than the following: General Liability Insurance Bodily injury per person $100,000.00 Bodily injury per occurrence $300,000.00 Property damage per occurrence $300,000.00 Property damage aggregate $300,000.00 Automobile Insurance Bodily injury per person $100,000.00 Bodily injury per occurrence $300,000.00 Property damage per occurrence $300,000.00 Workman's Compensation Insurance shall also be provided as required by the laws of the Commonwealth of Kentucky. All said insurance shall name the City as an t insured and shall provide a ten day notice to the City Clerk in the event of material alteration or cancellation of any coverage afforded in said policies prior to the date said material alternation or cancellation shall become effective. Copies of all policies required hereunder shall be furnished to and filed with the City Clerk and the Authority, prior to the commencement of operations or the expiration of prior policies, as the case may be. (d) Non -waiver. Neither the provisions of this section nor any bonds accepted by the City pursuant hereto, nor any damage recovered by the City hereunder, shall be construed to excuse unfaithful performance by the franchisee or limit the liability of the franchisee under this ordinance or the franchise for damages, either to the full amount of the bond, or otherwise. (30) Operational Standards. Technical standards for operation of the system shall, in addition to meeting the requirements specified in this ordinance, conform to all further requirements specified in the franchise agreement which is to be in conformance with the request for proposals, and any other standards or codes therefor as may be adopted by the Commission or the Authority or the F.C.C. SECTION VII. SUBSCRIBER RATES, CHARGES AND REFUNDS. (1) Rates and Charges. (a) Limitation on Rates. The charges made to subscribers for services of the franchisee hereunder shall be fair and reasonable and no higher than necessary to meet all costs of the service (assuming efficient and economical management). and provide a fair return on the original cost, less depreciation, of the properties devoted to such service, without regard to any subsequent sale or transfer price or cost of such property). The franchisee shall receive no consideration whatsoever from the subscribers for and in connection with its service to subscribers other than in accordance with this section without approval of the Authority, provided, in the case of denial of approval by the Authority, the franchisee shall have the right to appeal to the Commission and may receive approval at the discretion of the Commission. (b) Adjustments to Rates. The Authority shall have the power, authority and right to cause the franchisee's rates and charges to conform to the provisions of sub -section (a) hereof, and for this purpose, after public hearing affording proper notice to the franchisee and any other interested parties, it may deny increases or order reductions in such rates or charges when it determines that in the absence of such action on its part, the franchisee's rates and charges or proposed increased rates and charges will not conform to said sub -section; provided, however, the franchisee shall have the right to appeal to the Commission and may receive approval at the discretion of the Commission. 925 (2) Rate Schedule. An applicant for a franchise shall include in its bid or proposal its proposed rates and charges according to the following schedule which shall be approved by the Commission and shall not be altered without approval of the Authority, provided that upon denial by the Authority, approval may be obtained on appeal to the Commission, at the discretion of the Commission; (a) Standard Rates and Charges. Charges for the following services must be specified: (i) Initial tapin and connection charges. (TV and/or Radio, residential or commercial). (ii) Subsequent connection. (iii) Additional installation at same location, each. (iv) Each repositioning at same location (relocation) . (v) Initial (one time) charge for converter and amount of deposit. Monthly Rates. (i) First TV or TV/Radio outlet, residential or commercial (ii) Additional TV or TV/Radio outlets, each Hotels, Motels, Rest Homes and Hospitals containing more than ten units to which service is provided. (i) Cost of installing service to buildings and units contained therein. (ii) Monthly rates Multiple dwelling units (containing one structure or a group of structures located in one complex) for all services billed to one customer. (i) Cost of installing service to building and units contained therein. (ii) Monthly rates, per TV outlet, according to the following schedule: Number of dwelling units served. Up to 5 6 through 99 50 through 99 100 and over (d) Disconnection. There shall be no charge for disconnection of any of the aforementioned installations or connections. If a subscriber has failed to pay a properly due monthly subscriber fee, thirty days after the due date of said fee, the franchisee may cause disconnection of the subscriber's cable installation, however, upon payment in full of the delinquent monthly subscriber fee, franchisee shall promptly reinstate subscriber's cable service without additional connection charges, unless the connection has been physically removed from the premises. 426 (3) Advanced Charges. The franchisee shall be permitted to require advance payment for installation fees and for one month's advance subscriber fee and refundable deposit for set top converter. The franchisee shall require no further deposit, advance payment or penalty from any subscriber or potential subscriber without prior approval by the Authority. (4) If, in the future, the State of Kentucky or the United States of America or any regulatory agency thereof regulates the rates of the franchisee for the service provided for in the franchise, this section shall be of no effect during such regulation to the extent of any conflict therewith. (5) Refunds to Subscribers. If any subscriber terminates the service because of the franchisee's failure to render service to such subscriber of a type and quality, and in the manner provided for herein, or because the franchisee ceases to operate the system authorized herein, for any reason except expiration of the franchise, the franchisee shall refund such subscriber a portion of the initial connection charges which corresponds to the fraction obtained by dividing the number of months of service received by the subscriber by twelve. SECTION VIII. FRANCHISE FEES. (1) Bid Deposit and Bond. The application for grant of franchise, as required elsewhere under this ordinance, shall be accompanied by a Bid Bond in the amount of $50, 000.00. In addition, to partially pay city administrative costs, including evaluating bid proposals, a non-refundable $500.00 bid deposit in the form of a money order or cashiers check made payable to the Treasurer of the City of Paducah must accompany the bid proposal. (2) Annual Fee. (a) During the term of any franchise granted pursuant to this ordinance, the franchisee shall pay to the City for the use of its streets, public places and other facilities, as well as the maintenance, improvements and supervision thereof, an annual franchise fee in an amount equal to not less than 3% of the annual gross subscriber revenues received by it from operations conducted within the city. This payment shall be in addition to any other tax or payment owed to the City by the franchisee. (b) During the term of any franchise granted pursuant to this ordinance, the franchisee shall also pay to the City, an annual amount equal to 2% of the annual gross subscriber revenues received by it from operations conducted within the City. The aforesaid 2% of the annual gross subscriber revenues shall be used for the development of the public access channel and for the funding of the operations of the Paducah Cable Communications Authority. (3) Method of Computation. Payments due the City under the terms of this 427 ordinance shall be computed quarterly as on March 31, June 30, September 30 and December 31, for the preceding quarter and shall be paid on or before the 30th calendar day from each said computation date at the office of the City Treasurer during his regular business hours. The City and the Authority shall be furnished a statement with each payment, certified as correct by the franchisee and prepared at the franchisee's expense by its Certified Public Accountant, reflecting the total amount of gross subscriber revenues, for the three months' payment period covered by the payment. (4) Rights of Recomputation. No acceptance 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 under this ordinance or for the performance of any other obligation hereunder. (5) Failure to Make Required Payment. Failure to pay any fees required by this section shall result in an automatic suspension of the franchise granted, and rein- statement thereof may be had only upon resolution by the Commission, and payment of the delinquent fee or fees plus any reasonable interest or penalties that may be required. SECTION IX. ENFORCUIENT. (1) Nonenforcement - No Estoppel. The franchisee shall not be relieved of its obligation to comply promptly with any of the provisions of the franchise by any failure of the City to enforce prompt compliance. (2) Violators. All persons including officers of any franchisee, causing, participating in, or permitting any violation of any provisions of this ordinance shall be severally or jointly liable therefor. SECTION X. PADUCAH CABLE COMMUNICATIONS AUTHORITY. (1) Authority Established. Before any franchise is granted, there shall be adopted an authority to be known as the "Paducah Cable Communications Authority". (2) Authority Composition. The Authority shall consist of five residents of the City appointed by the Mayor and approved by the Commission. Each member shall serve a term of five years; provided, however, that appointments to the first Authority shall be for one, two, three, four and five year terms respectively. Any vacancy in the office shall be filled by appointment of the Mayor and approval of the Commission for the remainder of the term. No employee or person with any ownership interest in any cable television franchise granted pursuant to this ordinance shall be eligible for membership on the Authority. The City Manager, or his authorized representatives, may serve as an ex -officio non-voting member of thq, I Authority. The Authority shall select from among its number a Chairman who shall preside over the meetings. The term of the Chairman shall be for two years and no member shall i succeed himself in the position as Chairman. I iI l 428 (3) Authority Functions. The Authority, in addition to functions provided else- where in this ordinance, shall have the following functions and powers, the expenses of which are to be paid for, as far as possible from the revenue obtained under Section VIII, 2(b) above: (a) Advise the Commission on applications for franchises. (b) Advise the Commission on matters which might constitute grounds for revo- cation of the franchise in accordance with this ordinance or the franchise agreement. (c) Resolve disagreements among franchisee and public and private users of the system; such decisions of the Authority shall be appealable to the Commission. (d) Advise the Commission on regulation of rates in accordance with this ordinance. (e) Coordinate the franchisee's consulting services to facilitate government, educational, community groups and individual use of the public channels. (f) Determine general policies relating to the services provided subscribers in the operation and use of the access channels, with the view of maximizing the diversity of programs and services to the subscribers. The use of access channels shall be allocated on a first come first serve basis subject to limitations on monopolization of system time, or prime times. (g) Encourage use of access channels along the widest range of institutions, groups or individuals within the city. (h) Submit an annual report to the Commission, including, but not limited to, the total number of hours of utilization of access channels, a review of any plans submitted during the year by franchisees for development of new services and hourly sub -totals for various programming categories. The annual report shall also include relevant information concerning educational uses; public access for local programming under public control; local government access; pay TV and channel leasing. (i) Cooperate with other systems in supervising interconnecting of systems. 0) maintain a knowledge of current developments in cable communications by subscribing to trade publications and attending Cable Communication Seminars and meetings. (k) Submit a budget request to the City Manager to cover expenses incurred in respect of performance of functions provided by this ordinance over and above moneys received by it from Section VIII, 2(b). This request may include funds to be used for the development of the use of access channels, including production grants to users and the I purchase and maintenance of equipment not required to be provided by the franchisee, and funds to be used as per diem expenses and such salaries for the members as may be permitted and prescribed from time to time by separate ordinance. (1) Audit all franchisee records required by this ordinance and, in the Authority's discretion, require the preparation and filing of information additional to that required herein. 429 (m) Conduct a detailed evaluation of the system at least every three years and make recommendations to the Commission for amendments to this ordinance. (n) Employ, as necessary, services of a technical, accounting, legal and administrative nature. (o) Act on behalf or as the designee of the Commission for purposes of proposing regulations and arbitration procedures as deemed necessary by the Commission and/or to provide any other service to the Commission that may be reasonably required by the Commission under the authority of this ordinance. (p) In conjunction with the franchisee the Authority shall develop and publish within six months of the date of award of the initial franchise hereunder, and amend as necessary from time to time, a cable communications system rules and procedures manual to define the authorities, functions and responsibilities, and to adopt rules and procedures in relation thereto. Prior to the publication of said manual, and upon any significant amendments thereto, the Authority shall submit the same to the Commission for final approval. SECTION XI. MISCELLANEOUS. (1) Captions. The captions to sections herein are inserted solely for information and shall not affect the meaning or interpretation of the ordinance. (2) No Recourse Against City. The franchisee shall have no recourse whatsoever against the Authority or the City or their officers, boards, commissions, agents or employees for any loss, cost, expense or damage arising out of any provision or requirements of this franchise or because of its enforcement. (3) Word Derivations. When not inconsistent with the Contex, words used in the present tense herein include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. (4) Severability. If any parts of this ordinance are for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this ordinance. The Commission hereby declares that it would have passed this ordinance or each part or parts thereof irrespective of the fact that any one part or parts be declared invalid. SECTION XII. EFFECTIVE DATE. This ordinance shall be in full force and effect from and after its adoption. Mayor Passed by the Board of Commissioners January 4, 1974 Recorded by Sarah Thurman, City Clerk, January 4. 1974.