NEW YORK STATE DEPARTMENT OF PUBLIC SERVICE
METHOD OF SERVICE FORM
This form should be filed with all new petitions and applications that require action by the Commission. It will allow us to serve you with the Commission decision using the method you select.
Name: Susan Eckhardt Your Company/Organization: Time Warner Cable Mailing Address: 120 Plaza Drive, Suite B, Vestal, NY 13850 Company/Organization you represent, if different from above: E-Mail Address: [email protected]
If you consent to receive Commission-issued orders electronically, you will receive all Commission-issued documents electronically. If you do not consent to receive Commission-issued orders electronically, you will receive all Commission-issued documents by mail.
Check the box(es) in A orB, below:
A. [8J I am authorized by the party I represent to grant consent to receive electronic-only service of Commission-issued orders, AND
[8J I, on behalf of myself or the party I represent, knowingly waive the right specified in Public Service Law §23(1) to be served personally or by mail with orders that affect me or the party I represent and consent to receive service of Commission-issued orders by electronic means only. This consent remains in effect until revoked.
B
0 I do not consent to receive electronic service and instead request that the DPS mail Commission-issued document(s) to me. 120 Plaza Dr, te, Su1te D. Vest .1. NY 13850 David \ Vhalen P.O. Box 2086 Vice President Bmghamt:>n, NY 13902 Public and Gov .rnmental Affairs Tel (G07) £44-0025 ext 57312 Fax (607) 584-9524 da•.ld.ll'.hJienC·twc::ble.com
November 8, 2011
Hon. Jaclyn A. Brilling, Secretary NYS Public Service Commission Three Empire State Plaza Albany, NY 12223-1350
RE: Franchise Renewal -Time Warner Cable, Central New York Division With the City of Auburn
Dear Secretary Brilling:
We are herewith filing, via email, the following :
1. R-2 Application for Franchise Renewal , channel lineup and rates 2. Municipal Resolution granting renewal dated June 2, 2011 3. Fully executed copy of Franchise Renewal Agreement dated June 2, 2011 4. Copy of latest annual test data compiled for this part of the Division's CATV system (via separate email) 5. Published legal notices
We hereby request approval by the Commission of this application pursuant to Section 222 of the Public Service Law.
Respectfully,
David. J. Whalen Director, Government Relations Northeast Region, CNY Division
DJW/e Enclosures cc: Honorable Debra McCormick, City Clerk (w/copy of Encs .) STATE OF NEW YORK PUBLIC SERVICE COMMISSION
In the matter of application of TIME WARNER NY CABLE LLC for renewal of its Certificate of Confirmation and Cable Television Franchise in the City of Auburn, Cayuga County, New York.
1. The exact legal name of the applicant is TIME WARNER NY CABLE LLC.
2. The applicant does business under the name Time Warner Cable Central New York Division.
3. Applicant's telephone number are:
(607) 644-0025 Time Warner Cable (Binghamton Office, CNY) 120 Plaza Drive SuiteD Vestal, New York 13850
(315) 634-6200 Time Warner Cable CNY Division Office 6005 Fair Lakes Rd E. Syracuse, NY 13057
4. & 5. The applicant serves the following municipalities from the same headend or from a different headend in the same or adjacent counties; the number of subscribers in each of the communities as of January 2011:
City of Auburn 7569 Town of Fleming 542 Town ofNiles 7 Town of Owasco 1036 Town of Sennett 471 Town of Skaneateles 594 Village of Skaneateles 1166 Town of Spafford 225 Town ofThroop 345
6. The following signals are regularly carried by the Saranac Lake cable system: (see attached clwnnrl card).
7. The Applicant does provide channel capacity and video production facilities for local ongmation. During the past twelve (12) months, the Applicant has provided approximately 1,200 hours of locally originated programming of all types including PEG access.
8. The current monthly rates for service in the Auburn system are: (sec attached). 9. During the past twelve (12) months, the applicant has placed the following miles of new cable television plant in operation in the following municipalities:
City of Auburn 0.00 Town of Fleming 0.00 Town ofNiles 0.00 Town ofOwasco 0.00 Town of Sennett 0.00 Town of Skaneateles 0.00 Village of Skaneateles 0.00 Town of Spafford 0.00 Town of Throop 0.00
10. The company has previously submitted to the New York State Public Service Commission its technical plan to rebuild the system to 750 MHZ which was completed by end of2000.
11. (A) The Applicant has previously filed with the New York State Public Service Commission its current Statement of Assessment pursuant to Section 817 of the Executive Law.
(B) The Applicant previously filed with the New York State Public Service Commission its current Annual Financial Report.
12. State and describe below any significant achievements and/or improvements that took place with respect to system operation during the past twelve (12) months.
13. No event or change has occurred during the past twelve (12) months which has had, or could have, a significant impact upon Applicant's ability to provide cable television services.
WHEREFORE, the Applicant, Time Warner Cable, requests that the New York State Public Service Commission grant this application and approve renewal of the City of Auburn Certificate of Confirmation and Franchise Renewal Agreement.
Dated: November 8, 2011 33__ A&E 819---.Discovery HD 120 ___TheHub 800_ _ .NBA TVHD 240 __Fuel J 4______Nickelodeon 821 _____TNT HD 121 ______TheScienceChannel 806--ESPN News HO 242.__ ___ cas College Sports 2___ _ Time Warner Cable Sports 122 __T he Military Channel 243 __outdoor Channel J ___WSTMWCNBCl 35-- C·SPAN 822--TBSHD 807----.MLB Network HD 36.__ C-SPAN2 124 ____Jnvestlgatio n Discovery 244 _ __NHL Network 4 ______WSPX·TV CION Television) 823 --.FOX News Channel HD 812·-·--- ESPN U HD 37 _____C NBC 125 ___Planet Green 816 _ _ Palladia HD 245___ 8ig 10 Network 5_ _ _ WTVH ·TVCC BS) 824--CNNHD J8 ___MSNBC 126__ N ational Geographic Channel 820___ H D Theater 6 ___WSTQ-TV(lheCW6) 825--TLCHD 246--81910 Network 39 ______FOX News Channel 826 .. _, __HGTV HD 127 ______History International 829 ____National Geographic HD On Demand 7 _____W NYS·TVCMy43) 40.___ The Weather Channel 827____ Food HD 129 __8BC America 830 ___P1 anet Green HD 247__ . The Sportsman Channel 8 __WSYHVCFOXl g ____WSYR ·TVCABCl 41---Travel Channel 828-- Bravo HD 130 _ _ The Biography Channel 832.___Sclence Channel HD HD EQUIPMENT REQUIRED 4L_,___ _HSN 8Jt ____,.Anlmal Planet HD 131 _____NYS Legislative Channel 833.__ __C rime & Investigation HD 10._ __YNN - Your News Now 249 __, __ 8ig Ten Network HD 43__Hallmark Channel 835 __CNBC HD 8J4 __FO X Business Network HD 11 __WCNY·TVCP8Sl 132 --C·SPANJ On Demand 44 ___EWTN B36----.MSNBC HD 134 _ __current 8JB __BIO HD 798 _ _ Tennis Channel HD 12-----.PEG 45 ___TNT 837, ___Travel Channel HD 135 ______Bloomberg Television 842.--Disney XD HD 804.___ NHL HD 1J.___ WGN America 46 _ __Food Network 839 __Li fetimeMovieNetwork HD 136 __CNBCWorld 859 ___HDShowcase 814 ___B ig 10 Network HD 98 __-Local Origination 47 ____TV Land 840 ___0 isney HD 137 _____G4 881 ____NY1 HD 99 ______T V Guide Network 81 5 ____C 8S College Sports HD 48 ___8ET 841 .-----ABC Family HD 138.__ 0IY 896.-...... StyleHD 886_ __FOX Soccer PlusH D DIGITAL EQUIPMENT REQUIRED 49.__ T LC 843 __Nick HD 141.. -- GAC 897 _ _FUSE HD 887 __out door Channel HD 133 __WSTM ·DT3(CNY Central) 50 ___Comedy Central 844_ __cartoon Network HD 142 .. --MTV2 898.___ G4 HD 1540__ _ .ESPN Goal Line/ 850__ WCNY ·DTt CPBSl 51. _____cartoon Network 845 _ ___USA HD 143 ___ _ Fuse 907--Cooking Channel HD ESPN Buzzer Beater HD 85l __WCNY -DT2 CPBS) 52--truTV 846--.SyFyHD 144 __VH l Classic 9Q8 _ _ DIYHD 852 ____, WCNY·DT3 (PBS) 53·-----··-YES Network 847 _,__ . FX HD 145 ______Cen tric 915 ______BBC America HD 854 _ _ WCNY2 (PBS) 150 ___ov ation 54 ___..sportsNet NY 848---E!HD 916__ _H istory Channel DIGITAL EQUIPMENT REQUIRED 89Q ___WSYR ·DT 9.2(A8Cl 55_, _____VERSUS 849.. -...... Speed HO 151---LOGO International HD 1100·1110 NBA League Pass 56 ___MSG 872_ __MTV HD 152 ______...Sleut h 917___ Nat Geo Wild HD HD EQUIPMENT REQUIRED 1120·1134 ...NHL Center Ice/ 87J.___CMT HD 159 _ _ The Cooking Channel 919 .. --The Hub HD 81L--Time Warner Cable Sports 57----The Golf Channel MLB Extra Innings 58 __.SOAPne t 874 __.VH ·1 HD HD 16L_ GSN 1141-1146 - ESPN Full CourU 853 __W CNY·DT4 (PBS) HD 59 ... __0WN 882- ...... Spike HD 16J ___Ree lzChannel ESPN Game Plan 855 _ _ WTVH-TVCCBSlHD 60___ HGTV 883 ___comedy Central HD 171 ___Disney West DIGITAL EQUIPMENT REQUIRED 61 __ _ .....SyFy 86L__ , WSTM·TVCNBC) HD 885.. --. HLN HD 1n ·--DisneyXD 198-----TWC Movie Pass On Demand 62 ______Historv 173 _ ___Nick Jr. 866.. __. WSTQ HO CCW.Syracusel 893---EWTN HD 200- -Encore DIGITAL EQUIPMENT REQUIRED 63 ___TC M 868_ _ WSYHVCFOX)HD 899. __The Weather Channel HD 174 __Nick2 201 __E ncore West 64 ______W E 701-746._.Digital Music by Genre 87L___ WSPX HD Clan, Syracuse) 9QO _____ QVC HD 175 ----Teen Nick 202 ______E ncore Action sn __WNYS ·TV(My 43) HD 65 __Lifetlme Movie Network 90L-- .WE TV HD 176 _ _ Boomerang 203 __£ncore Love 88Q ___VNN - Your News NowHO 56______..Spike 902--TCMHD 1n ___Nicktoons 204___ Encore Mystery 180______,.Jewelry TV DIGITAL EQUIPMENT REQUIRED 889__ , WSYR-TV !ABC) HD 67 - ·-- ·--AMC 90J._._ __Hallmark Movie Channel HD 205 _____ Encore Westerns 68 __Discovery Frt & Health 904 __H allmark Channel HD 6oo.__ clne Latino 894__ WGN Amerlca HD 1B2..__ Gem5hopping Network 206.....-- Encore Drama 69 __MSG Plus 1050___5abres HD 18J.___ONTV4U 207. ___ EncoreWam 602_.....5opresa 7Q ______aravo 603_. ____ History Espanol (Home games only) 185.-- --America's Auction Network 208_ _ _FOX Movie Channel 14..__ _ INFOTV 71 _ __Di sney Channel 187__ .....Shop Zeal2 604 __CNN Espanol HD EQUIPMENT REQUIRED l6 ______Univis ion 72 ____ £! 189 ___oavstar 606.--FOX Depor1es 749______TWCMovie Pass 17. ___ .TBS 7J.___ __MSG Plus DIGITAL EQUI PMENT REQUIRED. 190 .. ___TBN 608.__ , Discovery Espanol OnDemandHD 18 ---Animal Planet 9Q__ Oxygen + 194 __Chiller 612.. __Tr3s NOT ALL CHANNELS AVAILABLE 19 ______QVC 103 __...S peed Channel+ 209_ ___ .1FC 614._.___ , mun 2 TO CABLECARD'" SUBSCR IBERS 20 ____.ABC Family 181.. ___ 5hopNBC+ 212.___ , MTV Hits 618--VIdeo Rola 1--·0NTWC 213 _ _ VH1 Soul 3D TV REQUIRED 21--FX Network HD EQUIPMENT REQUIRED 620 __La Familia Cosmovlslon 22,_____ CN N 100 ----MLB Network 214 _____CMT Pure Country 1505., __ ESPN 3D 622 ____Galav lslon 796 ·-·----AMC HD 104. ____ fOX Business Network 241 ___N BA TV 624--Telefutura 23--.....HLN 801__ MSG Ptus HD 105 _ __Nat Geo Wild Channel 628 ___ESPN Deportes 24___ ESPN 802 __, __ _MSG HD 61L_ Tr3s 25• ._ __ESPN2 106 ____ FOX Soccer Channel 1024 ____24-hour SkyT racker Doppler 803--VERSUS HD DIGITAL EQUIPMENT REQUIRED 107 ---ESPNEWS radar !rom YNN 26--EJ 805___ Golf HO 230.__ ESPN Oasslc 27___ __CM T 108,__ . ESPN U 1026__ , __ TWCS 2 808 __ ,__ _..Sports Net NY HD 11l ____NY 1 235 .. _ .. ____ FCS Atlantic 1250-- ·--·Driver's Village TV 28.-- ....MTV 809 __VESHD 236--FCS Central DIGITAL EQUIPMENT REQUIRED 29 __VH -1 112 _ __Lifetim e Real Women 1500 __Leased Access 810--ESPN HD 237--FCS Pacific 653 ___T VS 30._ _ __ u retime 11 5 ·---·The Sundance Channel HD EQUIPMENT REQUIRED 81L_ ... ESPN2 HD 116______style 238 -··--FOX Depor tes 656 ______RTN 31..--USA 797___ IF CHD 239 __The Tennis Channel 817--.A&E HD 119- ----Amerlcan Life TV 659--RAI 32 ___The Discovery Channel 799_ __HD Showcase 818 ___H istory HD 663- --ZceTV ~.·~·~·~il · . ·-~---·~-;r~iU~1.. .,. ·:~ ! ·:.:·~.: '''":'..;z•-#1~-'-. -l !rt - • : ~' '. ..i ~~ ; ~ ... : ... ~ . 1·~t a1anneiUQeUp ~ ~-. ~ 1 il~ ·_: :. -~-~:{.~ '
665 __CCTV4 754.__.. H BO Family HD 774-- .SH02HD 1311--.Howard TV On Demand 672 ___ _$BN 755.-- HBO Comedy HD 775__$howtime5howcase HD 1312.. - - --'ldult On Demand DIGITAL EQUIPMENT REQUIRED 675 __...ART 756 ___HBOZoneHD 776_., __.S howtlme Extreme HD 1313__ .. Piayboy TV Channel 1900__ Boome rang 757__ HBO Latino HD 777__ .-Showtlme Beyond HD 1314-_Ptayboy PPV 1901.__ CSPAN2 319. _____Cinemax On Demand 778. _ _ 5howtlme Next HD 1315 ..___ .Spice Excess 320 ___Cinemax 779 ______.5howtlme Women HD 1316--Ciub Jenna 1902-- -CSPANJ HD EQUIPMENT REQUIRED 1903 ___HLN 321 ____CinemaxWest 1762.._.-Showtime HDOn Demand 1317 ____Pent house TV 789 _____ .Smithsonian Channel HD 1904--The Hub 322- ----MoreMAX 349 __.TMC On Demand 1318__ .T EN 790_ ___.5mithsonian Channel HD On 32J __MoreMAX West 350 __The Movie Channel 1319___ vavoom 1905_-.Science Channel Demand 351. _____ TMC Xtra 1320 ____ ..sexsee 1906 ___Disney Cha nnel 791 ____ MGM HO 324.---ThrillerMAX 781 ___TMCHD 1907-- DIY Network 79:L.._MAV TV HD 325-- Thriller MAX West 782___ ,T MCXtraHD 1908 __D iscovery Ftt & Health 794 ___ .RFD HD 326. __ActlonMAX 1909 ___HGTV 327 _ _Action MAX West 784--Encore HD DIGITAL/HD EQUIPMENT 795 __Universal HD 1910 __La Familia Cosmovision 328.--WMAX 359 ____star z On Demand REQUIRED 191L___ . Nick Jr 329.____ ,.WMAX West 36o _ __starz 101 __FreeMovi esOnDemand 361 __starz West 1912.._ The Weather Channel 330-...SStarMAX 501-- Free Movies On Demand DIGITAUHD EQUIPMENT 362 _ _ .Starz Edge 1913-..D isney XD 331 __ou terMAX 397__ _ TV Guide Channel On Demand REQUIRED 1914. __ _-food Network 76l__ Cinemax HD 363___$tarzEdgeWest 550.--L~estyte on Demand 299--.HBO On Demand 764 ___MoreMAX HD 364._..-Starz Kids & Fami ly 55'---- - ..Ente rtalnment On Demand 300,_ _ .HBO 765_ __, ThrlllerMAX HD 365 ___s tarz Kids & Family West 552_.. -Musi c On Demand 301--HBOWest 366 _ ___.5tarz Cinema 766-ActionMAX HD 554 _ _1>rimetlme On Demand 302 ___HB02 767... __, @MAX HD 367._.. .-Starz Cinema West 555... - -BBC America On Demand 303 _ _ HB02West 768 ___WMAXHD 368 __ 5tarz in Black S6S __K ids0n Demand 304.-HBO Signature 769._.5StarMAX HD 369 __.starz in Black West 566 _____ Kids On Demand Preschool 305.--HBO Signature West 370. _ ___.5tarzComedy 770.-...... 0uterMAX HD 573-- .History & Nature On Demand 306.--HBO Family 139---Showtlme On Demand 785----Starz HD 574_--Exerdse TV On Demand 307 --- .HBO Family West 340___ _Showtime 786-----.Starz Comedy HD 576._. _ __cuttlng Edge On Demand 308._---HBO Comedy 787._ _$tarz Kids& Family HD 341__5howtlme Too 577 __TWC Sports On Demand 309_ _HBO Comedy West 342---Showtime Showcase 788 _ __$tarz Edge HD 579_ _ _M usicChoice On Demand 310 _____, HBOZone 341--..Showtime Extreme 859 ____HD Showcase 311-- HBO Zone West 344.- .Showtime Beyond 860.-_.Primetimeon Demand 312_.__ .HBO Latino 345__ .Showtime Next OIGITALIHD EQUIPMENT 861.- - .... Primetime On Demand HD 313 ___HBO Latino West 346___$howtime Women REQUIRED 999-Answers On Demand 751... ---HBO HD 347.___$howtime Family 169 ____.Disney Family Movie 1000... -NY On Demand 752-- .HB02HD 772___ . .Sho wtime HD On Demand On Demand 1010 __YNN On Demand 753--HBOSignature HD 773 _ ___.5howtime HD 170--Disney On Demand 1015.__ .-Sports On Demand 382 ___Here TV 1016·-- ·-··TWC Sports On Demand 38.3 __ _ Here TV On Demand 1195_-PrimetimeOn Demand HD 398.--.HD Movies On Demand 1200 ·---·Picture Show On Demand 399-_.Movies On Demand 1276---AutomotiveOn Demand 404-408• .Movies On Demand HD 1278__ Find It On Demand -Title In Guide 12BO.__ Movle Trailers On Demand 502 __lntemational Movies + D{)C.,.rurn\X·... . •~ - ,_(', , l tc ..... ne t 1281-_My Life On Demand fl'C'J ~: On Demand 1282_ __...Jou rney TV On Demand * ""'K)o. •IC 11 ..... ·~..riCir• :•lQll' D'\1 .ll.rn 503-- 0n Demand en Espanol ... ..~~.- . ; 504__ Kids & Teens Movies • Nor. ... . ~ o( ·J 4't7AIO"""JJL• r. w On Demand • ~~...... • <'a")I,. ;J!'~,;t •:~ 505-_Ciassic Movies On Demand For the most up-to-date line up, 506__ Thriller Movies On Demand visit timewarnercable.com 1300 __Events In Demand HD or call 1·800·TWCABLE. 1301 _ _ [vents IN Demand 1 1302---.Events iN Demand 2 EFFECTIVE 1/19/2011 1303 __Events On Demand (\() P·r..•,. ·t: P )1•01"1• . • '(1...-,i 11C.I tA 1..-w·~ - ~ 1o. et•.r•-•·· \ -1\ll:.. • 'fJII! oll'd•f!QI..I"~ ..l(li"CCJJI!"J-0"!"1(:- t i)Qot;:O.:<.;o-.r· ~.llld'"'"T'O .J "t'Q.! •1to. -<"<:t ~ CN,;.:.o · · ~1-QI . f'I"'' _·~:I.)Qn31c~\IC" IC'e 1304_ __.Adult On Demand u · ... 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RECEIVED JUN 0 6 2011 Execution Document
CABLE TELEVISION FRANCHISE RENEWAL AGREEMENT
CITY OF AUBURN
THIS AGREEMENT, executed this 2_ day of ~~11, by and between the City of Aubum (hereafter referred to as "the City) and Time Warner NY Cable LLC, the local place of business of which is located at Memorial City Hall, 24 South St, Auburn NY 13021-3885, hereinafter referred to as "Time Warner Cable."
WITNESSETH
WHEREAS, Pursuant to the City of Auburn Law, the Board has the exclusive power on behalf of the City of Auburn to grant franchises providing for or involving the use of the Streets (as defined in Section 1 hereof) and to give the consent of the City of to any franchisee for or relating to the occupation of the Streets; and
WHEREAS, Subject to the Communications Act of 1934, as amended, (the "Communications Act") the Board has the authority to grant cable television franchises and renewals thereof on behalf of the City of Auburn and whereas the Board and Time Warner Cable pursuant to said Federal Law and pursuant to applicable State laws and the regulations promulgated thereunder, have complied with the franchise procedUl'es required of Municipalities and cable operators in the grant of cable television franchises or their renewal; and
WHEREAS, The City of Auburn has conducted negotiations with Time W WHEREAS, Following such public hearings and such further opportunity for review, negotiations and other actions as the Board deemed necessary cmd that is required by law, the Board decided to renew Time Warner Cable' s franchise as provided hereinafter; and WHEREAS, The Board, in granting this franchise renewal, embodied in the agreement the results of its review and any negotiations with Time Warner Cable and has determined that said franchise agreement and Time Warner Cable respectively, fulfills and will fulfill the needs of the City of Auburn with respect to cable television service and complies with the standards and requirements of the New York State Public s~rvice Commission ("NYSPSC''); Execution Document NOW, THEREFORE, In consideration of the foregoing clauses, which clauses are hereby made a part of this franchise agreement, and the mutual covenants and agreements herein contained, the parties hereby covenant and agree: SECTION 1 - DEFINED TERMS Unless the context clearly indicates that a different meaning is intended: (a) "Basic Service" means any service tier which includes the retransmission of local broadcast signals. (b) "Board" means the local governing body of the City of Auburn. (c) "Cable Television Service" means: (1) The one way transmission to Subscribers ofVideo Programming, or other programming service, and (2) Subscriber interaction, if any, which is required for the selection or use of such Video Progrrunming, or other programming service. (d) "Cable Television System" means a faciljty, consisting of a set of closed transmission including (without limitation) fiber optic wires or lines, and associated signal generation, reception and control equipment that provides Cable Television Service to multiple subscribers within a community. (e) "City" means the City of Auburn. Wherever the context shall permit, Board, Council and City of Auburn shall be used interchangeably and shall have the same meaning under this Franchise. (f) "Effective Date" of this agreement shall be the date of the issue of an order of approval of this franchise renewal agreement by the New York Public Service Commission. (g) "FCC" means the Federal Communications Commission, its designees and any successor hereto. (h) "Franchise" means the grant or authority given hereunder to Time Warner Cable to construct and operate a Cable Television System in the City of Auburn in accordance with the tenns hereof. (i) "Gross Revenues" means all revenues (as determined in accordance with GAAP), net of money collected as a pass-through of franchise fees or PEG support, actually received by and paid to Time Warner Cable by subscribers residing within the City of Auburn for Cable TeJevision Service purchased by subscribers. Execution Document In addition, advertising revenues and revenues from home shopping commissions shall be included in Gross Revenues and subject to the payment of franchise fees, provided however, that if at any time another cable provider in the City is not obligated to include such revenues in their gross revenue calculations, then Time Warner shall be entitled to no longer pay franchise fees on such revenues. Advertising and home shopping commission revenues shall in each instance be allocated to the City for franchise fee payment purposes based on the munber of Time Warner subscribers in 1he City divided by the total number of subscribers covered by a particular compensation arrdilgement. (j) "May" is permissive. (k) "NYSPSC" means New York State Public Service Commission. (l) "Person" means an individual, partnership, association, corporation, joint stock company trust, corporation, or organization of any kind. (m) "Service Tier" means a category of Cable Television Service provided by Time Warner Cable over the Cable Television System for which a separate rate is charged for such category by Time Warner Cable. (n) "Shall" or "will" are mandatory. ( o) "Streets" means the surface of~ as well as the space above and below, any and all streets, avenues, highways, boulevards, concourses, driveways, bridges, tmmels, parks, parkways, waterways, docks and public grounds and waters within or belonging to the City of Auburn. (p) "Subscriber" means any person lawfully receiving any Cable Television Service in the City of Auburn provided by Time Warner Cable over its Cable Television System. (q) "Time Warner Cable" means Time Warner NY Cable LLC. (r) "Video Programming" means any and all programming services provided by, or generally considered comparable to programming provided by a television broadcast station. SECTION 2- CONSENT TO FRANCHISE AND CONDITION PRECEDE~T (a) The City of Auburn of hereby grants to Time Warner Cable the non-exclusive right to construct, erect, operate and maintain a Cable Television System and to provide Cable Television Service within the City of Aubum as it now exists and may hereafter be changed, and in so doing to use the Streets of the City of Aubum by erecting, installing, constructing, repairing, replacing, reconstructing_, 3 Execution Document maintaining and retaining in, on, over, under, upon and across any and all said Streets such facilities (e.g., poles, wires, cables, conductors, ducts, conduits, vaults, pedestals, manholes, amplifiers, appliances, attaclm1ents and other property) as is deemed necessary or useful by Time Warner Cable, for the operation of its cable system. Additionally, the City of Auburn, insofar as it may have the authority to so grant, hereby authorizes Time Warner Cable to use any and all easements dedicated to compatible uses, such as electric, gas, telephone or other utility transmissions, for the purposes of erecting, installing, constructing, repairing, replacing, reconstructing, maintaining and retaining in, on, over, under, upon and across such easements such facilities of the Cable Television System as is deemed necessary or useful by Time Warner Cable, for the operation of its cable system. Upon request by Time Warner Cable and at Time Warner Cable's sole expense, the City of Auburn hereby agrees to assist Time Warner Cable in gaining access to and using such easements. (b) Nothing in this Franchise shall limit the right of Time Warner Cable to transmit any kind of signal, frequency, or provjde any type of service now in existence or which may come into existence and which is capable of being lawfully transmitted and distributed by those facilities owned and operated by Time Wamer Cable. The provision by Time Warner Cable of any service other than cable service shall be subject to all applicable laws and regulations. (c) Without waiver or restriction of the rights available to the parties hereto under applicable law, this Franchise and the attachments hereto constitute the entire agreement between the parties and supersede any and all prior cable television agreements and other agreements or instruments by or between the parties hereto or their predecessors in interest as well as all rights, obligations and liabilities arising thereunder concerning or in any way relating to Cable Television Service. (d) Grantee agrees that it will not move, damage, penetrate, replace or interrupt any portion of the Cable Television System of any other franchised cable operator without the prior written consent of such cable operator. Grantee shall indemnify any other franchised cable operator, against any damages or expenses incurred by such cable operator as a result of any removal, damage, penetration, replacement or interruption of its services caused by the Grantee. In the event the City of Auburn grants to any other Person (being referred to as "Grantee" in the below quoted paragraph) a franchise, consent or other right to occupy or use the Streets, or any part thereof: for the construction, operation or maintenance of all or part of a cable television system or any similar system or technology, the City of Aubwn shall include Lhc language in the immediately preceding paragraph or language of similar effect in any such franchise, consent or other document and/or promptly pass a resolution, so conditioning the use of the Streets or any part thereof by any such Person. 4 Execution Document (e) This Franchise is non-exclusive. Any grant of a subsequent franchise shall be on terms and conditions wruch are not more favorable or less burdensome than those imposed on Franchisee hereunder. ln particular and without limiting the application of this provision to other provisions of this Franchise, any subsequent franchise granted by the City shall provide for the same payment of franchise fees, provision of PEG access channels and support of PEG access channels as provided herein. The City may not award or renew a franchise for cable television service which contains economic or regulatory burdens which when taken as a whole are greater or lesser than those burdens placed upon another cable television franchise operating in the same franchise area. (f) As used in this Section, the phrase, "occupancy or use of Streets," or any similar phrase, shall not be limited to the physical occupancy or use thereof but shall include any use above or below the Streets by any technology including but not limited to infrared transmissions. (g) Notwithstanding any other provision in this Franchise: In the event any change to local, state or federal law occurring during the term of this Franchise eliminates the requirement for any persons desiring to construct, operate or maintain a cable system in tJ1e Municipality to obtain a franchise from the Municipality for the construction, operation or maintenance of a cable system, then, Time Warner Cable shall have the right to terminate this Franchise and operate the system under the terms and conditions established in applicable law. If Time Warner Cable chooses to terminate this Franchise pursuant to this provision, this Franchise shall be deemed to have expired by its terms sixty days after Time Warner Cable notifies the City that it chooses to terminate this franchise, whether or not such law allows existing franchise agreements to continue w1til the date of expiration provided in any existing francruse. Time Warner Cable shall remain subject to all applicable laws and regulations with respect to abandonment of service. Furthermore, in the event any change to local, state or federal law occwTing during the term of this Franchise materially alters the regime of cable franchising applicable to any persons desiring to construct, operate or maintain a cable system in the Municipality in a way that reduces the regulatory or economic burdens for such person, then, at Time Warner Cable's request, the Municipality shall agree with Time Warner Cable to amend this Franchise to similarly reduce the regulatory or economic burdens on Time Warner Cable. It is the intent of this section that, at Time Warner Cable's election, Time Warner Cable shall be subject to no more burdensome regulation or provided Jesser benefits under this Franchise than any other persons that might construct, operate or maintain a cable system in the Municipality. To the extent any acts pursuant to this section result in an amendment to the Franchise, any such amendment shall be subject to such approval by the NYPSC as required by law and regulation. 5 Execution Document SECTION 3 - APPROVAL OF COMJ, ANY BY City of Auburn (a) This Franchise is subject to and complies with all applicable Federal and State laws and regulations, including, without limitation, the rules of the NYSPSC concerning franchise standards. The City of Auburn hereby acknowledges and agrees that this Franchise has been entered into by it in accordance with and pursuant to the Communications Act of 1934, as amended, 47 U.S.C. Sec. 521 et seq. (hereinafter referred to as the "Communications Act"). The City of Auburn hereby represents and warrants that this Franchise has been du1y entered into in accordance with all applicable local laws. The City of Auburn hereby acknowledges that it, by duly authorized members thereof, has met with Time Warner Cable for the purposes of evaluating Time Warner Cable and negotiating and consummating this Franchise. (b) In a full and public proceeding, affording due process, the City of Auburn has considered and approved Time Warner Cable's technical ability and character and has considered and found adequate Time Warner Cable' s plans for constructing and operating the cable system. SECTION 4- FRANCHISE TERM The term of this Franchise shall be fifteen years from the Effective Date until (date), 2026. SECTION 5- ASSIGNMENT OR TRANSFER OF FRANCHISE (a) Time Warner Cable shall not transfer this Franchise to any person, firm, company, corporation or any other entity without the prior written consent of the City of Aubum, which consent shall not be unreasonably withheld or denied. (b) In the event that the City of Auburn refuses to grant such consent, it shall set forth specific reasons for its decision in writing hy municipal resolution. (c) Not'Wi.thstanding the above, this Section 5 shall not be applicable and no prior approval shall be required if Time Warner Cable shall transfer this Franchise to any parent, subsidiary or affiliate of Time Warner Cable, or to any other firms or entities controlling, controlled, by or under the same common control as Time Warner Cable. SECTION 6 - REVOCATION (a) The City of Auburn may revoke this Franchise and all rights afforded Time Warner Cable hereunder in any of the following events or for any of the following reasons: 6 Execution Document (i) Time Warner Cable fails after sixty (60) days written notice from the City of Auburn to substantially comply or to take reasonable steps to comply with a material provision of this Franchise. Notwithstanding the above, should Time Warner Cable comply or take said reasonable steps to comply within said sixty days notice, the City of Auburn's right to revoke this Franchise shall immediately be extinguished; or (ii) Time Warner Cable is adjudged a bankrupt; or (iii) Time Warner Cable knowingly and vtillfully attempts or does practice a material fraud or deceit in its securing of this Franchise. (b) Notwithstanding the above, no revocation shall be effective unless and until the City of Auburn shall have adopted an ordinance at a public meeting at which Time Warner Cable shall have an opportunity to be heard setting forth the cause and reason for the revocation and the effective date thereof, which ordinance shall not be adopted until the expiration of one hundred twenty (120) days from the date of delivery of written notice to Time Warner Cable specifying the reasons for revocation. If the revocation ac; proposed therein depends on a finding of fact, such finding of fact shall be made by the City of Auburn only after an administrative hearing providing Time Warner Cable with a ful l and fair opportunity to be heard, including, without limitation, the right to introduce evidence, the right to the production of evidence and the right to question witnesses. A transcript shall be made of such hearing. Time Warner Cable shall have the right to appeal any such administrative decision to a state or federal district court as Time Warner Cable may choose and the revocation shall not become effective until any such appeal has become final or the time for taking such appeal shall have expired. SECTION 7- INDEMNIFICATION & INSURANCE (a) Time Warner Cable shall indemnifY and hold harmless the City of Auburn .fi'om all liability, damage and costs or expense arising from claims of injury to persons or damage to property occasioned by reason of any conduct of Time Warner Cable its employees or agents unde11aken pursuant to this Franchise. The City of Auburn shall promptly notify Time Warner Cable of any claim for which it seeks indemnification; afford Time Warner Cable the opportunity to fully control the defense of such claim and any compromise, settlement, resolution or other disposition of such claim, including by making available to Time Warner Cable all relevant information under its control. (b) Time Warner Cable shall as ofthe Effective Date ofthis Franchise obtain liability insurance in the minimum amount set forth within and shall furnish to the City of Auburn evidence of such liability insurance policy or policies, in the form of a certificate of insw·ance naming the City of Auburn as an additional named 7 Execution Document insured, which policy or policies or replacements thereof shall remain in effect throughout the term of this Franchise; said policy and replacements shall be in the combined amount of Two Million Dollars ($2,000,000.00) for bodily injury and property damage issued by a company authorized to do business in New York State. In addition, Time Warner Cable shall carry Worker,s Compensation insurance for its employees in such amounts as is required by the laws of the State of New York. The insurance coverage herein referred to above may be included in one or more policies covering other risks of Time Warner Cable or any of its affiliates, subsidiaries or assigns. (c) The City shall hold hannless and defend Time Warner Cable from and against and shall be responsible for damages, liability or claims resulting from or arising out of the willful misconduct or negligence of the City. The City shall be responsible for its own acts of willful misconduct, negligence, or breach, subject to any and all defenses and limitations of liability provided by law. Time Warner Cable shall not be required to indemnify the City for acts of the City which constitute willful misconduct or negligence on the part of the City, its officers, employees, agents, attorneys, consultants, independent contractors or third parties. SECTION 8- USE OF EXISTING l)OLES AND LOCATION OF UNDERGROUND FACILITIES (a) Time Warner Cable hereby agrees that when and wherever it deems it economical and reasonably feasible, it shall enter into agreements with telephone or electric or other utilities (collectively "utilities") for the use of said utilities' poles or conduit space whereby said utilities shall provide use of and access to said poles or conduit space by Time Warner Cable for Time Warner Cable's lines and other equipment. Notwithstanding the above, where necessary to service Subscribers and where attachment to the pole(s) or conduit space of utilities is not economically reasonable or otherwise feasible, Time Warner Cable may erect or authorize or permit others to erect any poles or conduit space or any other facilities within the Streets of the City of Auburn pursuant to the issuance by the City of Aubum of any necessary authorizations which shall not be unreasonably withheld or delayed. (b) Subject to the provisions of sub-paragraph (c) below, in such areas of the City of Auburn where it shall hereafter be duly required that all utility lines be installed underground, Time Wamer Cable shall install its lines underground in accordance with such requirement. (c) Notwithstanding the foregoing, if Time Warner Cable shall in any instance be unable to install or locate its wires underground, then the City of Auburn, on being apprised of the facts thereof: shall permit such wires to be installed above 8 Execution Doctunent the ground even though other facilities in the area may be placed, or required to be placed, underground. However, any such permission shall be on such conditions as the City of Auburn may reasonably require. SECTION 9- RELOCATION OF PROPERTY (a) Whenever the City of Auburn shaJl require the relocation or reinstallation of any property of Time Warner Cable in or on any of the Streets ofthe City of Auburn as a result of the relocation or other improvements by the City of Auburn of any such Streets, it shall be the obligation of Time Warner Cable on written notice of such requirement to remove and relocate or reinstall such property as may be reasonably necessary to meet the requirements of the City of Auburn. In the event any other person, including a public utility, is compensated for similar relocation or reinstallation then .in such case Time Warner Cable shall be similarly compensated. (b) Time Warner Cable shall, on request of a person holding a building or moving pern1it issued by the City of Auburn, temporarily raise or lower its wires or other prope1ty or relocate the same temporarily so as to permit the moving or erection of buildings. The expenses of any such temporary removal, and/or the raising or lowering of wires or other property shall be paid in advance to Time Warner Cable by the person requesting the same. Time Warner Cable shall be given in such cases not less than ten (1 0) working days prior written notice in order to arrange for the changes required. SECTION 10- USE & INSTALLATION (a) Time Warner Cable or any person authorized by Time Warner Cable to erect, construct or maintain any of the property of Time Warner Cable used in the transmission or reception of Cable Television Service shall at all times employ due care under the facts and circumstances and shall maintain and install said property of Time Warner Cable in accordance with commonly accepted methods and principles in the cable television industry so as to prevent failures and accidents likely to cause damage or injury to members of the public. All Cable Television System equipment shall confo1m to those standards of the National Electrical Code and the National Board of Fire Underwriters which exist at the lime said equipment is installed and replaced. (b) Time Warner Cable agrees to install all Cable Television System equipment in a manner so as to reasonably minimize interference to be expected with the usual use of the Streets and in no event shall any such Cable Television System equipment be located so as to substantially and regularly interfere with the usual public travel on any Street of the City of Aubwn. Time Warner Cable shall constmct and maintain its cable system using materials of good and durable quality and shall perform all work involved in the construction, installation, 9 Execution Document maintenance and repair of the cable system in a safe, thorough and reliable manner. Time Warner Cable shall promptly repair or replace any municipal property damaged or destroyed by Time Warner Cable so as to restore it to serviceable condition. (c) Whenever Time Warner Cable or any person on its behalf shall cause any injury or damage to public property or Street, by or because of the installation, maintenance or operation of the Cable Television System equipment, such injury or damage shall be remedied as soon as reasonably possible after the earlier of notice to Time Warner Cable from the City of Auburn or after Time Wamer Cable becomes aware of the same, in such fashion so as to restore the property or Street to substantially the same serviceable condition. Time Warner Cable is hereby granted the authority to trim trees upon and overhanging the Streets of, and abutting private property, (i.e., in the public way) in the City of Auburn to the extent it reasonably deems necessary so as to prevent the branches or growths from coming in contact with the wires, cable and other equipment of Time Warner Cable's Cable Television System. SECTION 11 -CONTINUOUS SERVICE Time Warner Cable shall continue to provide cable service to all subscribers who meet. their obligations to Time Warner Cable with respect to such service. Time Warner Cable shall not, without the written consent of the City of Auburn and the Public Service Commission, abandon its cable television system or any portion thereof. SECTION 12 - FRANCHISE AREA AND LINE EXTENSION Time Warner Cable shall comply with the requirements for construction of cable television plant and provision of cable television services as set forth in Section 895.5 of the Rules of the NYSPSC, provided that Time Warner Cable shall charge its standard installation rate to install cable service to any residence in an area where the density is 26 occupied homes per cable mile or greater and a drop of no greater than 150 feet is required. Density per cable mile shall be computed by dividing the number of residential dwelling units in the area by the length, in miles or fractions thereof, of the total amount of aerial or underground cable necessary to make service available to the residential dwelling units in such area in accordance with Time Warner Cable's system design parameters. The cable length shall be measured from the nearest point of access to the then-existing system, provided that extension is technically feasible from that point of access and located within the Public Rights-of-Way. The total cable length shall exclude the drop cable necessary to serve individual Subscriber premises. SECTION 13- OPERATION AND MAINTENANCE (a) Time Warner Cable shall contract and maintain hs cable system using materials of good and durable quality and shall perform all work involved in the construction, 10 Execution Document installation, maintenance and repair of the cable system in a safe, thorough and reliable manner. (b) Time Warner Cable shall maintain and operate its cable television system at all times in compliance with the duly promulgated and lawful provisions of Section 896 ofthe Rules and Regulations ofthe NYSPSC and the technical requirements set forth by the FCC. (c) Throughout the term of this Franchise, Franchisee's Cable Television System shall have a minimum channel capacity of seventy-eight (78) channels. SECTION 14 ~RATES Time Warner Cable shall not illegally discriminate against individuals in the establishment and application of rates and charges for cable services available to generally all subscribers. The rates and charges imposed by the franchisee for cable television service shall be subject to regulation in accordance with fcderallaw. SECTION 15- INSPECTION OF RECORDS (a) City of Auburn, upon reasonable notice and during normal business hours, shall have the right to inspect all books, records, maps, plans, financial statements and other like materials of Time Warner Cable which are pertinent to Time Warner Cable's compliance with the terms and conditions of this Franchise. (b) City of Aubum and Time Warner Cable agree that Time Warner Cable's obligations hereunder are subject to any applicable law, including laws regarding the privacy of information regarding subscribers. (c) City of Auburn will maintain the confidentiality of any information obtained pursuant to this provision to the extent permitted by Jaw, provided Time Warner Cable has advised City of Auburn of the confidential nature of the information. In the event that the City of Auburn receives request for the disclosure of such information with which it, in good faith, believes it must under law comply, then the City of Auburn will give Time Warner Cable notice of such request as soon as possible _prior to disclosure in order to allow Time Warner Cable to take such steps as it may deem appropriate to seek judicial or other remedies to protect the confidentiality of such infonnation. SECTION 16- PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS CHANNELS (a) Time Wamer Cable shall comply with the standards for public, educational and governmental (PEG) access channels as set forth in Section 895.4 ofthe Rules of 11 Execution Document the NYSPSC. The PEG access charmels shall be shared with other franchising authorities served by the system. (b) The City has designated two sites for the interconnection of PEG Access facilities with the Cable System (the "PEG Access interconnection Sites\ (i) Memorial City Hall (24 South Street, Auburn, NY 13021) and (ii) Aubwn .Public 'Theatre (8 Exchange Street, Auburn, NY 13021) The PEG Access interconnection Sites shall be fully accessible by Time Warner Cable without any further legal obligation. The City may request connection of both sites at the same time or each site at a different time during the term of this Agreement. To request connection, the City shall provide Time Warner Cable with written notice confirming that the: (i) PEG Access Interconnection Site is fully functional for the purpose of transmitting the PEG Access programming; and (ii) City has secured an irrevocable commitment in all other cable providers' franchise agreements and in the future cable franchise agreements of any new cable service providers within the City to deliver within one hundred eighty ( 180) days of either the effective date of such franchise agreement or of notice from the City upstream the PEG Access Channel transmission connections between the cable provider's video channel aggregation point and the PEG Access Interconnection Sites. Within one hundred eighty (180) days after Time Warner Cable receives such written notice from the City and subject to the successful completion of all required municipal site preparation work by the City and provision of access to Time Warner Cable for equipment, installation and provisioning, Time Warner Cable shall, without charge to the City, provide the upstream PEG Access channel transmission connections between its video channel, aggregation point and the PEG Access Interconnection Sites in order to pennit the signals to be correctly routed from the PEG Access Interconnection Sites for distribution to Subscribers. The City shall pay the cost of any facilities required in order to deliver the signals from the program origination points to the PEG Access Interconnection Sites and secure any third-party consent that may be necessary to acquire and transmit the PEG Access Channel signals (including, without limitation any consent that may be required with respect to third-pa1ty facilities, and/or equipment). The City shall provide to Time Warner Cable at the PEG Access Interconnection Sites a suitable video signal and a suitable audio signal for the PEG Access Channels. Time Warner Cable, upon receipt ofthe suitable audio and video signal, shall provide, install and maintain in good working order the equipment necessary for transmitting the PEG Access 12 Execution Document signals to the channel aggregation site for further processing for distribution to Subscribers. Time Warner Cable's obligations with respect to such upstream transmission equipment and facilities shall be subject to the availability, without charge to Time Warner Cable, of suitable required space, environmental conditions, electrical power supply, access, pathway, and facilities and such cooperation of the City as is reasonably necessary for Time Warner Cab.le to fulfill such obligations. Notwithstanding the foregoing, Time Warner Cable shall not be obligated to provide the City with any other cablecast equipment or facilities or personnel responsible for maintaining and operating such equipment and facilities or generating any such PEG Access programming, except as necessary to implement Time Warner Cable's responsibilities specified herein. (c) Subject to the conditions set forth herein, Time Wamer Cable shall pay the City a per-subscriber PEG grant (the "Per Subscriber Annual PEG Grant") in the following amounts: (i) An annual grant for the first (5) years counted from the Effective Date in the amount of THIRTEEN CENTS ($.13) per Subscriber per month in the City or any Jesser amount on a per subscriber per month basis imposed by the City upon any other cable service provider; (ii) Provided that in the fourth and fifth years of the term, the PEG equipment purchased with the funds provided hereunder is used to produce an average of 4 hours per week of original programming for distribution on the PEG access channels, an annual grant in years six (6) through ten (1 0) in the amount of FIFJ"EEN CENTS ($.15) per Subscriber per month in the City or any lesser amount on a per subscriber per month basis imposed by the City upon any other cable service provider. (iii) Provided that in the sixth through tenth years of the term the PEG access equipment purchased with the funds is used to produce an average of 5 hours per week of original programming tor distribution on the PEG access channels, an annual grant in any years eleven (11) through titteen (15) in the amount of SEVENTEEN CENTS ($.17) per Subscriber per month in the City or any lesser amount on a per subscriber per month basis imposed by the City upon any other cable service provider. (iv) "Original Programming" as used in subsections (ii) and (iii) above may include, but shall not be limited to, Auburn City Council proceedings; Cayuga County legislative proceedings; Auburn Enlarged School District Board meetings; interview and governmental programming from Cayuga Community College and programming provided at Auburn High School by students. 13 Execution Document Fw1her, the City agrees that it shall impose, at a mmtmum, the same PEG grant obligation in the franchise agreements of any other providers of cable service in the Franchise Area. The Per Subscriber Annual PEG Grant shall be used solely by the City for PEG access equipment, including, but not limited to, studio and portable production equipment, editing equipment and program playback equipment, or for renovation or construction of PEG access facilities. The Per Subscriber Annual PEG Grant shall begin to accrue on the later of the Effective Date or the date all other cable service providers in the City have an equivalent obligation. The Per-Subscriber Annual PEG Grant shall be payable at the same time as the franchise fee payment for the last calendar quarter of each year. The amount of the Pet Subscriber Annual PEG Grant shall be calculated by multiplying the total number of Subscribers per month in each of the twelve (12) months of the year for which the payment is made by the corresponding rate for a given year, and adding the multiples of each of the twelve (12) months together. (d) The City agrees to provide non-capital support for PEG access in the amount of no Jess than $35,000 per year. If the City fails to provide such support in any year, Time Warner Cable shall not be obligated to pay the Per Subscriber Annual PEG Grant for that year. However, tbe obligation of the City under this subsection shall be reduced dollar for dollar by the amount of any grant ·f]:om another person (provided such person does not provide cable service in the City of Auburn) which grant is used to provide non-capital support for PEG access. Such grant will be credited against the City's obligation for either the year in which the grant was made or the year following at the City's option. (e) The City shall provide Time Warner Cable with a complete accounting annually of the distribution of funds granted pursuant to this Section and verification of the expenditure required by subsection (d) above. (f) The City shall require all local producers and users of any of the PEG facilities or Channels to agree in writing to authorize Time Warner Cable to transmit programming consistent with this Agreement and to defend and hold harmless Time Warner Cable and the City from and against any and all liability or other injury, including the reasonable cost of defending claims or litigation, arising from or in connection with claims for failure to comply with applicable federal laws, rules, regulations or other requirements of local, state or federal authorities; for claims of libel, slander, invasion of privacy, or the infringement of common law or statutory copyright; for unauthorized use of any trademark, trade name or service mark; for breach of contractual or other obligations owing to third parties by the producer or user; and for any other injury or damage in law or equity, 14 Execution Document which result from the use of a PEG facility or Channel. The City, shall establish rules and regulations for use of PEG facilities consistent with applicable law. (g) To the extent permitted by federal law, the Time Warner Cable shall be allowed to recover any costs arising from the provision of PEG services from Subscribers and to include such costs as a separately billed line item on each Subscriber's bill. Without limiting the forgoing, if allowed under state and federal laws, Time Warner Cable may externalize, line-item, or otherwise pass-through and any franchise-related costs to Subscribers. SECTION 17 - SUBSCRIBER SERVICES (a) Time Warner Cable shall comply with the Customer Service Consumer Protection Standards set forth in Parts 890 and 896 of the Rules and Regulations of the NYSPSC as well as the cable service customer obligations established by the FCC. (b) It is agreed that all Cable Television Service offered to any subscribers under this Franchise shall be conditioned upon Time Warner Cable having legal access to any such subscriber's dwelling units or other tmits wherein such service is provided. (c) Time Warner will provide a standard installation and one (1) outlet of basic cable service, at no charge, to the building owned by the City of Auburn and used for municipal purposes and listed in Exhibit A and to any public primary or secondary school and public library, situated in areas served by its existing cable system. SECTION 18- FRANCHISE FEES (a) Time Warner Cable shall pay the City of Auburn a franchise fee in an amount equal to 5% of Time Warner Cable's Gross Revenues received by Time Warner Cable. (b) There shall be applied as a credit against the Franchise Fee the aggregate of: (i) any taxes, fees or assessments of general applicability imposed on Time Warner Cable or any subscribers, or both, which are discriminatory against Time Warner Cable or any subscribers, (ii) any non-capital expenses incurred by Time Warner Cable in support of the PEG access requirements of this Franchise and (iii) any fees or assessments payable to the NYSPSC which when combined with all other fees and credits would exceed 5% of gross revenues. Time Warner Cable shall have the right to apply franchise fees paid as a credit against special franchise assessments pursuant to Section 626 of the New York State Real Property Tax Law. 15 Execution Document (c) Payment of the franchise fee shall be due quarterly within sixty (60) days of the end of the company's quarter. Time Warner Cable shall submit to the City of Auburn, along with the payment of said fees, a report showing reasonable detail the basis for the computation thereof. (d) If Cable Services subject to the Franchise Fee required tmder this Section 18 are provided to Subscribers in conjunction with Non-Cable Services, the Franchise Fee shall be applied only to the value of the Cable Services, as reflected on the books and records of Time Warner Cable consistent with applicable law. SECTION 19- SEVERABILITY, GOVERNING LAW, POLICE POWERS REQUESTS FOR AUTHORIZATION AND NON-DISCRIMINATION (a) Should any provision of this Franchise be held invalid by a court or regulatory agency of competent jurisdiction, the remaining provisions of this franchise shall remain in full force and effect. (b) To the extent not inconsistent with or contrary to applicable federal law, the tenns of this Franchise shall be govemed and construed in accordance with the laws of the State of New York. The parties hereby acknowledge and agree that any provisions of this Franchise or any existing or future State or local laws or rules that are inconsistent with or contrary to any applicable Federal law, including the Cable Act, as the same may be amended, are and shall be prohibited, preempted and/or superseded to the extent of any inconsistency or conflict with any applicable Federal laws. (c) In addition to the provisions contained in this Franchise and in existing applicable ordinances, the City of Auburn may adopt such additional regulations as it shall find necessary in the exercise of its police power, provided, however, that such regulations are reasonable and not materially in conflict with the privileges granted in this Franchise. (d) Time Warner Cable shall file requests for any necessary operating authorization with the NYSPSC and the FCC with.in sixty (60) days from the date the Franchise is approved by the City of Auburn. (e) Time Warner Cable will not refuse to hire or employ, nor bar or discharge from employment, nor discriminate against any person in compensation or in terms, conditions or privileges of employment because of age, race, creed, color, national origin or sex. (:f) Access to cable service will not be denied to any group or potential residential subscribers because of the income of the residents of the local area in which such group resides. 16 Execution Document (g) The terms of the franchise are subject to the approval of the Public Service Commission (PSC). (h) Per Section 895.l(t), any valid reporting requirements contained in the franchise may be satisfied with system-wide statistics, except for reporting requirements related to franchise fees. SECTION 20- ADMINISTRATION OF THE FRANCHISE The officer of the City of Auburn responsible for the continuing administration of this Franchise shall be (Title). SECTION 21 -NOTICE All notices required herein shall be in writing and shall be deemed delivered when received by United States certified mail, return receipt requested, or on the date of delivery to addressee when sent by express mail, or overnight, or hand delivered to the parties and locations as specified below. Both Time Warner Cable and City of Auburn may change where notice is to be given by giving notice to the other. When notices sent to Time Warner Cable: Time Warner Cable Attention: Government Relations 120 Plaza Drive Vestal, NY 13850 With a copy to: Time Warner Cable Attention: Law Department, Regulatory 60 Columbus Circle New York, NY 10023 When notices sent to the City of Auburn: Mayor City of Auburn Memorial City Hall 24 South Street Auburn, NY 13021 Telephone: 315-255-4104 SECTION 22 - FORCE MAJEURE 17 Execution Document In no event, and notwithstanding any contrary provision in this Franchise, shall this Franchise be subject to revocation or termination, or Time Warner Cable be subject to penalty or prejudice or in any way liable for non-compliance with or delay in the performance of any obligations hereunder, where its failure to cure or take reasonable steps to cure is due to reason of strike; Acts of God; acts of public enemies; order of any kind of a government of the United States of America or of the State or any of their departments, agencies, political subdivisions; riots; strikes; failure of suppliers; epidemics; landslides; lightning; earthquakes; fires; hurricanes; tornadoes; volcanic activity; storms; floods; washouts; droughts; civil disturbances; explosions; partial or entire failure of utilities or any other cause or event not reasonably within the control of Time Warner Cable. Time Warner Cable shall not be deemed to be in violation or default during the continuance of such inability and Time Warner Cable shall be excused from its obligations herein during the course of any such events or conditions and the time specified for performance of Time Warner Cable's obligations hereunder shall automatically extended for a period of time equal to the period of the existence of any such events or conditions and such reasonable thereafter as shall have been necessitated by any such events or conditions. Furthermore, the parties hereby agree that it is not the City's intention to subject Time Warner Cable to any penalty or revocation of the Franchise for violations of the Franchise where the violation was a good faith or that resulted in no or minimal negative impact on Subscribers, or where strict performance would result in practical ditliculties and hardship being placed upon Time Warner Cable that outweigh the benefit to be derived by the City and/or Subscribers. SECTION 23 -RIGHTS OF ENFORCEMENT Nothing contained in this Franchise is intended to or shall confer any rights or remedies on any third parties to enforce the terms of this Franchise. SECTION 24 - FURTHER ASSURANCES The City of Aubmn of shall, without further consideration, execute ru1d deliver such further instruments and documents and do such other acts and things as Time Warner Cable may reasonably request in order to effect and confirm this Franchise and the rights and obligations contemplated herein. SECTION 25- INTEGRATION This Franchise supersedes all prior negotiations between the parties hereto and shall be binding upon ru1d inure to the benefit of the parties hereto and each of their respective successors and permitted assigns. This Franchise may be amended (except as otherwise expressly provided for herein) only by agreement in writing signed by duly authorized 18 Execution Document persons on behalf of both parties. To the extent required by State law, amendments hereto shall be confirmed or approvt:d by the NYSPSC. This Franchise may be executed in one or more counterparts, all of which taken together shall be deemed one (1) original. The headings of the various Sections of this Franchise are for convenience only, Md shall not control or affect the meaning or construction of t~ny of the provisions of the Franchise. The rights and remedies of the p11tties pmsuant to l11is Franchise are cumulative and shall be in addition to and not in derogation of any rights or remedies which the pEll'ties may have with reSJ)ect to the subject matter of this Franchise. SECTION 26- NO JOINT VENTURE Nothing herein shall be deemed to crente a joint venture or any agency or employment · relationship between the pArties, and neither party is authorized to not· shall either party act toward any third parties or to the public in any manner which would indicate any such relationshjp with the other. By: inartclal Office!', East Region 19 Execution Document EXHIBIT A MUNICIPAL BUILDINGS TO BE PROVIDED FREE CABLE SERVICE (1) Memorial City Hail- 24 South Street, Auburn, NY 13021 (2) Auburn High School- 250 Lake Avenue, Auburn, NY 13021 (3) Casey Park Elementary School - 101 Pulaski Street_, Auburn, NY 13021 (4) Herman Elementary School- 2 North Herman Avenue, Auburn KY 13021 (5) Seward Elementary School- 52 MetcalfDrive, Auburn NY 13021 ( 6) East Middle School - 191 Franklin Street, Auburn NY 13021 (7) West Middle School- 217 West Genesee Street, Auburn NY 13021 (8) School District Administrative Offices- 78 Thornton Avenue, Auburn NY 13021 (9) Owasco Elementary School- 66 Letchworth Street, Auburn NY 13021 * (1 0) Police Station - 46 North Street, Auburn NY (11) Fire Station - 23 Market Street, Auburn NY (12) Fire Station #3- 276 Clark Street, Auburn NY (13) DPW Garage - 358 Genesee Street, Auburn NY (14) Solid Waste Management Center- 311 N. Division Street, Aubw11 NY (15) Casey Park- 150 N. Division Street, Auburn NY (16) Water Filtration Plant- 60 Swift Street, Auburn NY *The parties acknowledge that this site is located outside the Service Area and that Franchisee will provide free basic cable service to this site under this Agreement; provided that., the Franchisee has an effective franchise agreement with the Town of Owasco where the site is located. 20 . ' 1/ .'C. AGREEMENT RESOLUTION #77 OF 2011 \WARDING A CABLF FRANCHIS:C AND APPROVJNG A CABLE FRANCillSE AGREEMENT WITH Tll't-lE WARNER NY CABLE, l.JlJC May26. 2011 WHEREAS, the City of Aubmn, New York ("C1ty") is a franchising authority in a~..wrdance with Title VI of the Communications Act of 1934, as amended (the "Communications Act"), dl1d is authorized to grant one or more cable television franchises pursuant to Article 11 of the New York State Public Service Law, and Title 16, Chapter Vlli, Parts 890.60 through 890.6 through 899, of the Official Compilation of Codes, Rules and Regulations o1 the State ofNew York t the "Cable Law&'·)~ and WHEREAS, Time Warner ba~ been operc!1ing a cable system within the City of Aubum as a successor in interest to Adelphia Cable for a mtmber of years and desires now to have a formal agreement with the City of Auburn to operate a cable francruse within the Ctty of Auburn, New York; and WHE.REAS, negoti.ttions between the C1ty and Time Warner have resulted in tt prop~•sed agreement cnlltled ·'Cable Televi<>\on Franchise Renewal Agreement, City of Auburn'' which proposed agreemtnt was filoo with the City on March 15, 2011 (Time Warner Franchlse Cable Agreement); and WHEREAS, on April7, 2011, at a regularly scheduled Council Meeting, the Uty held a public hearing on the proposed Cable Television Franchise Renewal Agreement with Time Warner at which member<; of the Council, Time Warner and the public were t;.ivennotice and opportunity to comment thereon. NOW TA:EREFORE BE IT RESOLVED that the Auburn City Council finds that it approves the character ofTime Warner; and BE IT FURTHER RESOLVED that the Council finds that 'lime Warner i~ legally (pursuant to N0w York Public Service Commission Rules and other statutor) requirements), technically, and financially !Uld otherwise qualified to meet the c::tble relatcd needs and interests of the City and that l1me Warner will meet all ~tatutoi] and regulatory non-discrimination reqmrements; and BE IT FURTBER RESOLVED that the City authorizes the award of a non exclusive franchise to 11me Warner NY Cable, LLC to own, construct, operate and main~ain a cable S}stem along the. public right<:-of-way v.ithin th l.! C'ity in order to provide '' cable service, v.:h.ich authorization is made in accordance with the applicable provisions ofTitle VI of the Communications Act and the Cable Laws; and BE IT FURTHER RESOLVl-D that the Auburn City Cotmcil authorize:, the Mayor to enter into and sign a franchise agreement with Time Warner NY Cable, LLC in a form approved by the Corporation Counsel, and to execute any and all other document:, necessary to effectuate the granting of the franchise on behalf of the City of Auburn. ~econded by Councilor~ THIS IS TO CERTrFY that thi~ i~ a true and accurnte cop; or a Record on file in the CITY CLERK'S OFFICE, AUBURN, NEW YORK. 1 Date: vL '. ~ . ~I rih& a7rzcf~ Debm A. McCormick, wty Oerk Do not ncccpt thiR copy unless the roised ~enl of the City of Auburn, New York, ls affixed thereoa. ANY ALTEHATIONS OR ERASURE VOIDS THIS TRANSCRIPT.