[HISTORY: Adopted by the Town Board of the Town of Colonie 8-27-1998 by L.L. No. 11-1998; amended in its entirety 11-18-1999 by L.L. No. 13-1999. Subsequent amendments noted where applicable.]
GENERAL REFERENCES
Department of Planning and Economic Development — See Ch. 33.
Department of Public Works — See Ch. 34.
Streets and sidewalks — See Ch. 162.
Zoning — See Ch. 190.
A. 
The Town of Colonie (the Town) has the authority to grant franchises and/or licenses for the use and occupancy of the Town rights-of-way. The Town has determined that the rights-of-way are a valuable public resource that have required and will continue to require prudent management by the Town.
B. 
The Town of Colonie finds that the enactment of a telecommunications law will have a beneficial impact on all of the citizens of the Town. Competition among telecommunications providers is increasing due to advancements in technology, changes in federal and state law and increased demand for such services from Town residents, businesses, educational institutions, governmental offices and other public and private institutions. Many of these telecommunications providers must utilize public rights-of-way in order to operate. The Town further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers and procedures to protect public rights-of-way, and to ensure the orderly development of a telecommunications infrastructure which effectively serves the Town, while at the same time not erecting barriers which prohibit or effectively prohibit competition among telecommunications providers operating within the Town.
C. 
The Town desires to structure and implement a fair and orderly process for the granting of franchises and/or licenses, (and renewals of such franchises and/or licenses) to occupy and use the Town rights-of-way to provide telecommunications services in the Town, including the negotiation of terms and conditions to protect the interest of the public in the safety and integrity of the public rights-of-way and in obtaining fair and reasonable compensation for the use of the public rights-of-way consistent with applicable law. Consistent with applicable law, the Town desires to manage the rights-of-way and obtain fair and reasonable compensation from telecommunications providers on a competitively neutral and nondiscriminatory basis for the use of the rights-of-way. The Town further finds that such regulatory powers should be vested in the Town or such persons as the Town shall designate.
[Amended 5-27-2004 by L.L. No. 7-2004]
D. 
The Town desires to minimize inconvenience and disruption to the public, provide for the orderly and efficient use of the rights-of-way now and in the future and preserve adequate capacity for existing and future uses of its rights-of-way. The Town intends to exercise, to the fullest extent permitted by applicable law, its authority with respect to the regulation of the occupation and use of its rights-of-way in connection with the provision of telecommunications services.
E. 
The Town Board has determined that the procedures set forth by this chapter for granting franchises and/or licenses for the installation, construction, operation and maintenance of telecommunications systems in the Town promote the public interest, enhance the public health, safety and welfare and stimulate commerce by assuring that:
(1) 
Telecommunications systems are responsive to the needs and interests of the Town and its residents;
(2) 
Telecommunications systems provide, and are encouraged to provide, the widest diversity of information and service to the public; and
(3) 
There is an orderly process for granting or renewal of franchises and/or licenses and for oversight of the services provided pursuant to franchises, licenses and other authorizations.
A. 
Definitions. As used herein, the following words shall have the meanings below set forth:
AFFILIATED PERSON
Each person who falls into one or more of the following categories: each person having, directly or indirectly, a controlling interest in the applicant; each person in which the applicant has, directly or indirectly, a controlling interest; each officer, director, joint venture or joint venture partner of the applicant; and each person, directly or indirectly, controlling, controlled by, or under common control with, the applicant; provided that such affiliated person shall in no event mean the Town, or any creditor of the applicant solely by virtue of its status as a creditor and which is not otherwise an affiliated person by reason of owning a controlling interest in, being owned by, or being under common ownership, common management or common control with, the applicant.
APPLICANT
Any person who applies for a franchise and/or license pursuant to this chapter.
APPLICATION
The process by which an applicant submits a request and indicates a desire to be granted a franchise and/or license to utilize the public rights-of-way of all, or a part, of the Town. An application includes all written documentation, verbal statements and representations, in whatever form or forum, made by an applicant to the Town concerning: the installation, construction, operation and maintenance of a telecommunications system over, under, on or through the Town's rights-of-way; the telecommunications services proposed to be provided in the Town by an applicant; the area proposed to be served within the Town by an applicant; the portion of the Town's rights-of-way proposed to be used by an applicant; the manner in which telecommunications services are to be rendered to Town customers; and any other matter pertaining to the proposed use of public rights-of-way for the purpose of operating a telecommunications system.
CABLE SERVICES
Cable services as defined in the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996 and as may be further amended from time to time (the Cable Act). In the event that cable services is no longer defined in the Cable Act or the definition in the Cable Act otherwise becomes inapplicable, "cable services" shall mean cable services as defined in the Cable Act immediately prior to such term no longer being defined in the Cable Act or such definition otherwise becoming inapplicable.
CHAPTER
This chapter and all modifications and amendments thereto.
CONTROL or CONTROLLING INTEREST
The actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments or negative control, as the case may be, of the applicant or the equipment in the rights-of-way. A rebuttable presumption of the existence of control or a controlling interest shall arise from the beneficial ownership, directly or indirectly, by any person, or group of persons acting in concert, of more than 10%, of any person (which person or group of persons is hereinafter referred to as a "controlling person"). Control or controlling interest as used herein may be held simultaneously by more than one person or group of persons.
CUSTOMER
Any person receiving service provided by a franchisee pursuant to the authority of a franchise.
DEPARTMENT OF PUBLIC WORKS
The Department of Public Works of the Town of Colonie. This Department is responsible for review of all applications submitted to the Town and for the issuance of all permits.
EQUIPMENT
The poles, wires, cables, electrical conductors, conduits, subways, manholes, handholes, junction boxes and terminal blocks, fixtures, appliances and appurtenances that are used to provide telecommunications services.
FACILITY or FACILITIES
Any tangible component of the telecommunication system, including equipment.
FRANCHISE or FRANCHISE AGREEMENT
The initial authorization, or renewal thereof, issued by the Town in accordance with the provisions of this chapter, for the nonexclusive right and authority to install, construct, maintain and operate any part of a telecommunications system described in the application and to provide telecommunication services to customers within the Town through use of the public rights-of-way. The franchise shall describe in detail all requirements applicable to the franchise, including all applicable requirements of federal, state and local laws.
GROSS REVENUE
Any and all payments made to, or compensation in any form whatsoever received, directly or indirectly, by the franchisee or any affiliated person from or in connection with the operation of the telecommunications system, or the provision of any service over the telecommunications system by the franchisee or any affiliated person, within the territorial limits of the Town. The revenues described in this definition shall include, but are not limited to:
(1) 
All revenue received from any telecommunication service provided within the Town, such as, but not limited to:
(a) 
All telecommunication service revenues charged on a flat rate basis.
(b) 
All telecommunication service revenues charged on a usage sensitive or mileage basis.
(c) 
All revenues from installation service charges, connection or disconnection fees.
(d) 
All revenues from equipment sold or rented to customers upon customer premises.
(e) 
All revenues from local service.
(f) 
All revenues from charges for access to local and/or long-distance networks.
(g) 
All other revenues collected by the franchisee from business pursued within the Town.
(2) 
Any access or other payments received by the franchisee or any affiliated person from interexchange carriers, connecting carriers and others in connection with any service originating in the Town, regardless of the destination of such service.
(3) 
Revenues received from the lease, exchange, rental or use of any facilities, capacity, plant, conduit space or equipment of the telecommunications system.
(4) 
The value of any free services provided by the franchisee; provided, however, that the value of the free service provided hereunder to the Town or to any other governmental entity shall not constitute gross revenue.
(5) 
The fair market value of any nonmonetary transactions between the franchisee and any person other than an affiliated person, and not less than the customary prices paid in connection with equivalent transactions between the franchisee and any affiliated person and not less than the customary prices paid in connection with equivalent transactions conducted with persons who are not affiliated persons.
(6) 
Recoveries of bad debts previously written off and revenues from the sale or assignment of bad debts. Unrecovered bad debts charged off after diligent, unsuccessful efforts to collect are excludable from gross revenues. All revenues from penalties or charges to customers from checks returned from banks, net of bank cost paid, shall also be gross revenue.
LICENSE
An initial authorization, or renewal thereof, issued by the Town in accordance with the provisions of this chapter, which authorizes the limited occupation and use of specifically identified rights-of-way, provided that a license shall be issued only in the limited circumstances set forth in § 173-12D of this chapter.
PERMIT
A nonexclusive permit issued pursuant to this chapter for access to and ongoing use of public rights-of-way by telecommunications providers for wires, poles, pipes, conduits or other facilities designed or used to provide telecommunications services.
PERSON
Any individual or any association, firm, partnership, joint venture, corporation or other legally recognized entity, whether for profit or not-for-profit, but shall not mean the Town.
PLANNING AND ECONOMIC DEVELOPMENT DEPARTMENT
The Planning and Economic Development Department of the Town of Colonie. This Department is responsible for the intake of applications and the collection of application fees.
PUBLIC RIGHTS-OF-WAY or RIGHTS-OF-WAY
The surface of, as well as the spaces above and below, any and all streets, alleyways, avenues, highways, boulevards, driveways, bridges, tunnels, parks, parkways, public grounds or waters, and any other public property or place belonging to the Town or any special districts of the Town as the same now exist or may hereafter be extended or altered, and any location thereon, thereover or thereunder and any portion thereof.
PUBLIC WORKS COMMISSIONER
The Commissioner of the Department of Public Works or his or her designee.
TELECOMMUNICATIONS
All transmissions, between or among points specified by the user, of information of the user's choosing without a change in the form or content of the information as sent and received.
TELECOMMUNICATIONS PROVIDER
Any applicant who owns, leases, installs, constructs, operates or maintains equipment in the public rights-of-way used to provide telecommunications services regardless of whether such telecommunications system originates, terminates or merely passes through the Town.
TELECOMMUNICATIONS SERVICES
Any telecommunications service provided by means of the telecommunications system of the franchisee or any affiliated person in accordance with applicable federal, state, and local law. Services shall not include Title VI cable service, as defined in 47 U.S.C. § 522(6), and service as an open video system provider pursuant to 47 U.S.C. § 573.
TELECOMMUNICATIONS SYSTEM
A telecommunications provider's system of cables, wires, lines, towers, amplifiers, antennas, wave guides, optical fibers, microwaves, laser beams, any associated converters and all other electronic devices, equipment, real property (including interests in real property), tangible and intangible personal property, customer lists or buildings, offices, plants and facilities designed and constructed for the purpose of producing, receiving, amplifying or distributing telecommunications to provide telecommunications services. This system shall be limited to audio, video, data, voice and signaling communications services.
TOWN
The Town of Colonie, New York, as now incorporated and including any special districts of the Town of Colonie therein and all future annexations which shall include the Town Board and all associated departments.
TOWN BOARD
The governing body of the Town and its designee or any successor thereto.
TRENCHLESS TECHNOLOGY
The use of directional boring, horizontal drilling and microtunneling and other techniques in the construction of underground facilities which results in the least amount of disruption and damage to rights-of-way as possible.
UNDERGROUND FACILITIES
All lines, cables, conduits, posts, tanks and other facilities owned or operated by persons other than the Town which are located wholly or partially underneath rights-of-way.
VEGETATION
Any tree, bush, shrub, vine or other foliage.
B. 
In this chapter, the above-defined terms, phrases, words and their derivations shall have the meanings set forth in this section, unless the context clearly indicates that another meaning is intended. When not inconsistent with the context, words used in the present tense include the future, words used in the plural number include the singular number and words used in the singular number include the plural number. The word "shall" is mandatory and "may" is permissive.
A. 
The Town Board is empowered and authorized to issue, in accordance with this chapter, nonexclusive franchises and/or licenses to install, construct, operate and maintain telecommunications systems in the Town's public rights-of-way, as well as to regulate these activities to the extent permitted by law.
B. 
No person shall use or occupy the rights-of-way as a telecommunications provider, nor shall they install, construct, operate or maintain equipment in the rights-of-way to provide telecommunications services to customers or in connection with the internal operations of such person's business, residence or employment, nor shall they offer telecommunications services for sale or resale to any other person, without a franchise and/or license granted by the Town.
C. 
A franchise and/or a license granted in accordance with the provisions of this chapter shall not be construed to grant any rights or authorization to provide cable services in the Town, and any person seeking to provide cable services in the Town shall first obtain a separate franchise or license in accordance with applicable law. A franchisee or licensee shall not allow any other person to use its telecommunications system to provide cable services if such person has not been granted a franchise by the Town.
D. 
A telecommunications provider may provide open video services or operate an open video system as defined by the Federal Communications Commission (the "FCC") within the Town; however, such provider must first obtain a separate open video franchise from the Town.
E. 
The Town Board may grant one or more franchises and/or licenses in accordance with this chapter, provided that the Town Board reserves the right to modify any provision of this chapter by amendment hereof.
F. 
The granting of any franchise and/or license shall be made by adoption of a separate resolution by the Town Board and shall be on such terms and conditions as shall be specified in said separate resolution and/or a franchise agreement and/or license agreement between the Town and the franchisee or licensee.
G. 
Any franchise and/or license granted shall be nonexclusive. The Town specifically reserves the right to grant, at any time, such additional franchises, licenses or other authorizations for use of the rights-of-way by any means as the Town deems appropriate.
H. 
A franchise and/or license may be granted for all or any defined portion of the Town.
Subject to the provisions of this chapter, the Town may adopt additional rules, policies and requirements to carry out the purposes and provisions of this chapter. Each applicant, franchisee and/or licensee shall comply with such rules, policies and requirements.
No person shall install, construct, repair and/or maintain any equipment in the rights-of-way used to provide telecommunications services without first obtaining such permits or other authorizations as may be required by the Department of Public Works. The Department of Public Works is responsible for issuance of all permits. The franchisee or licensee shall pay all applicable fees for Town construction permits. No permits or other authorizations for such construction or installation shall be issued prior to the granting of a franchise or license pursuant to this chapter or such other authorization as may be required by applicable law. Once construction is completed, any necessary repairs or maintenance of franchisee's or licensee's telecommunications system that requires access to the underground facilities shall require additional highway permits.
A. 
Prior to the issuance of a permit, an applicant must complete the required application. Application materials must be obtained from the Planning and Economic Development Department. The application materials will define all application requirements and contain all application fee information.
B. 
Once completed, five copies of the application for a franchise and/or license shall be submitted to the Planning and Economic Development Department. The application will then be sent to the Department of Public Works for review. An application must be filed to obtain a franchise and/or license to install, construct, operate or maintain any telecommunications system within the Town, to expand a franchisee's or licensee's current permitted territory or to obtain a renewal of a telecommunications franchise and/or license granted pursuant to this chapter.
C. 
An application shall contain, at a minimum, the following information with respect to the proposed franchise and/or license and such other information as the Town may deem necessary or appropriate, consistent with applicable law:
(1) 
The name, address and telephone number of the applicant and the person the Town may contact concerning the application.
(2) 
[1]A description of the proposed franchise and/or license area or the specifically identified rights-of-way and/or portions thereof proposed to be used.
[1]
Editor's Note: Former Subsection C(2), regarding a description of the telecommunications services proposed, was repealed 5-27-2004 by L.L. No. 7-2004. This local law also provided for the redesignation of former Subsections C(3) through (7) as Subsections C(2) through (6), respectively.
(3) 
A proposed construction schedule and sequence.
(4) 
Plans and profiles showing the proposed location of the telecommunications system and all existing utilities within the rights-of-way.
(a) 
Such maps shall be paper prints 22 inches by 34 inches in size and to a scale no smaller than 50 feet per inch.
(b) 
This provision shall also apply to each construction sequence if the construction is to be completed in phases.
(5) 
The ownership of the applicant and identification of all affiliated persons.
(6) 
For purposes of determining the appropriate bond requirements, the franchisee or licensee shall also provide an engineer’s estimate of cost, outlining the estimated cost of the proposed project.
[Amended 5-27-2004 by L.L. No. 7-2004]
D. 
At the time of filing the application, a nonrefundable application fee shall be paid to the Planning and Economic Development Department. The amount of all fees shall be in accordance with the fee schedule in effect at the time of application.
A. 
In making any determination hereunder as to any application for a franchise or license, the Department of Public Works may consider the following factors:
[Amended 5-27-2004 by L.L. No. 7-2004]
(1) 
The willingness and ability of the applicant to pay any compensation required pursuant to § 173-13 or 173-14 hereof;
(2) 
The willingness and ability of the applicant to maintain the property of the Town in good condition throughout the term of the franchise or license;
(3) 
The extent to which any uses of the rights-of-way by the Town or other existing users may be precluded, hindered or adversely affected by the grant of the franchise or license or by the particular use of the public rights-of-way contemplated by the applicant, either at present or in the future; and
(4) 
The willingness and ability of the applicant to meet construction, physical requirements and Town highway and drainage standards and to abide by all lawful conditions, limitations, requirements and policies with respect to the franchise or license.
B. 
Consistent with applicable law, the Town may develop and implement policies and requirements to ensure that the rights-of-way have sufficient capacity reasonably to accommodate existing and future uses in a rational and efficient manner. In evaluating an applicant for a franchise or license, the Town may consider an applicant's proposals for addressing capacity needs and compliance with Town policies and requirements.
[Amended 5-27-2004 by L.L. No. 7-2004]
The Department of Public Works may make such investigations and take or authorize the taking of such other steps as the Town deems necessary or appropriate to consider and act on applications for franchises or licenses and to determine whether a franchise or license should be granted to an applicant and may require the applicant to furnish additional information and data for this purpose. In considering applications, the Department of Public Works may seek advice from Town officials, other departments, agencies, boards, commissions or bodies, from such other advisory bodies as the Town Board may establish or determine appropriate and may request the preparation of one or more reports to be submitted to the Department of Public Works, which may include recommendations with respect to such applications. The Town may reject any application which is incomplete or otherwise fails to comply with applicable law, ordinances, resolutions, rules, regulations and other directives of the Town and any federal, state or local authority having jurisdiction.
[Amended 5-27-2004 by L.L. No. 7-2004]
If an application is complete and otherwise complies with applicable law, ordinances, resolutions, rules, regulations and other directives of the Town, including the provisions of this chapter, the Town shall enter into negotiations with the applicant to determine whether such applicant and the Town are able to reach agreement on the terms of the proposed franchise or license in accordance with this chapter. If the Town and the applicant reach agreement on the terms of a franchise or license, such terms shall be set forth in the form of a franchise agreement or license agreement and submitted to the Town Board pursuant to § 173-10.
A. 
Prior to the issuance of a franchise or license, the Town Board shall hold a public hearing, following reasonable notice to the public, at which an applicant and his or her application shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard.
B. 
Consistent with applicable law, upon completion by the Department of Public Works of the steps set forth in this chapter, the Town Board shall approve or deny the grant of the proposed franchise or license. If the Department of Public Works has recommended approval of the proposed franchise or license, the Town Board shall grant the application on the terms set forth in the franchise agreement or license agreement negotiated pursuant to § 173-9. If the Town Board denies the grant of a franchise or license, the applicant shall be informed of the reasons for the denial and given an opportunity to amend its application and/or the terms of the proposed franchise or license. The applicant shall then have the right to ask the Town Board to reconsider the denial of the grant of the franchise or license.
[Amended 5-27-2004 by L.L. No. 7-2004]
A. 
Construction/relocation requirements.
(1) 
Preconstruction requirements.
(a) 
After a complete application has been submitted to the Planning and Economic Development Department (hereinafter "PEDD") by the franchisee or licensee, the PEDD shall provide franchisee's or licensee's application, with the attached complete set of preliminary plans and specifications, to the Department of Public Works (hereinafter "DPW") for their review prior to the issuance of any permits for construction for the term of this franchise or license. This provision shall also apply to each construction sequence if the construction is to be completed in phases. Maps shall be paper prints, 22 inches by 34 inches in size, and to a scale no smaller than 50 feet per inch. The franchisee or licensee shall also provide an engineer's estimate of cost to the DPW, outlining the estimated cost of their proposed project.
(b) 
After these items have been provided, the DPW shall circulate such preliminary plans and specifications to the various Town departments affected for comment. The DPW shall then forward these comments to the franchisee or licensee. The franchisee or licensee shall then address the Town's comments, or, if the franchisee or licensee disagrees with such comments, the franchisee or licensee can request a meeting with the DPW to explain why the franchisee or licensee feels the changes requested in the comments are not necessary. The final determination as to what is to be changed lies with the DPW.
(c) 
After the changes requested by the Town are made to the DPW's satisfaction, the franchisee or licensee shall resubmit the modified plans and specifications to the Town for review. Once all of the Town's comments are addressed, the DPW may then approve the plans and specifications.
(d) 
After these plans and specifications are approved, the franchisee or licensee shall provide the DPW with:
[1] 
A construction time estimate sheet.
[2] 
Four copies of the final plans and specifications.
[3] 
A copy of any agreements with private parties or legal documents for use of their lands for franchisee's or licensee's facilities (if such agreements or documents were necessary).
[4] 
A copy of any pole/conduit agreement (if such an agreement was made).
[5] 
A copy of the franchisee's or licensee's franchise agreement or license. Once all items are received, the DPW will then schedule a preconstruction meeting with the franchisee or licensee at which time, if all is acceptable, a highway permit may be issued.
(2) 
Permits required.
(a) 
The franchisee or licensee shall apply for and obtain all permits necessary for installation, construction, repair, and maintenance of any such facilities and for the excavation and laying of any and all telecommunications system facilities within the Town rights-of-way. The franchisee or licensee shall pay all applicable fees for Town construction permits.
(b) 
The initial highway permit will allow for the installation and construction of franchisee's or licensee's telecommunications system. However, once construction is completed, any necessary repairs or maintenance of franchisee's or licensee's telecommunications system that require access to the underground facilities shall require additional highway permits.
(3) 
Provision of maps.
(a) 
Once franchisee's or licensee's construction in the rights-of-way is completed, the franchisee or licensee shall provide the Town with a map showing the location of its installed telecommunications system in the rights-of-way, as-built. Such as-built maps shall be paper prints, 22 inches by 34 inches in size, and to a scale no smaller than 50 feet per inch. If requested by the Town, the franchisee or licensee shall provide such maps in an electronic format compatible with the Town's Geographic Information System (hereinafter "GIS"). As-built maps shall be provided no more than 30 days following the conclusion of construction.
(b) 
One year after the effective date of said franchise agreement or license, annually thereafter, and in the event of any alterations, the franchisee or licensee shall provide a map to the DPW, which shall conform to Town standards as listed above, showing the location of franchisee's or licensee's telecommunications system in the rights-of-way.
(4) 
Placement of underground facilities.
(a) 
The franchisee or licensee acknowledges that the Town prefers the subterranean installation of facilities within the public rights-of-way or use of existing aboveground facilities. The franchisee or licensee shall make all efforts to comply with the Town's policies and regulations in this regard.
(b) 
Prior to doing such work, the franchisee or licensee must apply for, and obtain, a franchise agreement or license with the Town and appropriate permits from the Town.
(c) 
Once issued a highway permit, the franchisee or licensee may make excavations in Town rights-of-way for any facilities needed for the installation, construction, repair and maintenance of the franchisee's or licensee's telecommunications system. Prior to excavation, all existing underground facilities shall be located using Underground Facilities Protective Organization (UFPO) or successors thereto. The franchisee or licensee shall be responsible for all necessary notifications.
(d) 
In addition, all use of the Town rights-of-way shall conform to all federal, state or local laws and the Town's highway and drainage standards, which are available at the DPW. Any repair to, or replacement of, any Town infrastructure must also be done in accordance with the applicable DPW standards and specifications and must be inspected by the applicable division of the DPW for conformance (i.e., water, sewer, highway). In the case of subterranean installation, and to minimize the impact on the Town infrastructure, trenchless technology shall be the preferred method of installation.
(e) 
All excavations or other construction in the public rights-of-way shall be carried on so as to interfere as little as practicable with the use of public and private property and in accordance with any direction given by the Town under the police and regulatory powers of the Town.
(5) 
Emergency repairs. In the event that emergency repairs are necessary, the franchisee or licensee shall immediately notify the DPW of the need for such repairs. The franchisee or licensee may immediately initiate such emergency repairs and shall apply for appropriate permits no later than the next business day following the discovery of the emergency. The franchisee or licensee must comply with all laws and provisions relating to such emergency excavations or construction, including the payment of permit fees. Failure by the franchisee or licensee to timely apply for such necessary permits will be considered a breach of this agreement and could lead to the revocation of their franchise agreement or license.
(6) 
Public emergency. The Town shall have the right to sever, disrupt, dig up or otherwise destroy facilities of the franchisee or licensee, without any prior notice, if such action is deemed necessary by the Town Supervisor, Police Chief or Commissioner of Public Works because of a public emergency. However, the Town shall provide notice to the franchisee or licensee as soon as reasonably possible. The public emergency shall be any condition which, in the opinion of any of the officials so named, possesses an immediate threat to the lives or property of the citizens of the Town caused by any natural or man-made disaster, including but not limited to storms, floods, fire, accidents, explosions, major water main breaks or hazardous material spills. The franchisee or licensee shall be responsible for the repair, at its sole expense, of any of its facilities damaged pursuant to any such action taken by the Town.
(7) 
Relocation. The Town shall have the right to require the franchisee or licensee to either protect, support, temporarily disconnect, relocate or remove its telecommunications system within the rights-of-way when the public convenience requires such change, and the expense thereof shall be paid solely by the franchisee or licensee. The Town shall provide the franchisee or licensee with written notification requesting such relocation. The franchisee or licensee shall have no vested right in any location. Should the franchisee or licensee fail to remove or relocate any such facilities by the date established by the Town, the Town may cause and/or effect such removal or relocation, and the expense thereof shall be paid by the franchisee or licensee, including all costs and expenses incurred by the Town due to the franchisee's or licensee's delay. If the Town requires the franchisee or licensee to relocate its facilities located within the Town's rights-of-way, the Town will make a reasonable effort to provide the franchisee or licensee with an alternate location for its facilities within alternative Town rights-of-way. The franchisee or licensee shall have no vested right in any location.
(8) 
Restoration of rights-of-way.
(a) 
Whenever the franchisee or licensee disturbs the surface of any rights-of-way for any purpose, the franchisee or licensee shall promptly restore the rights-of-way to at least their prior condition and to the satisfaction of the DPW. When any opening is made by the franchisee or licensee in a hard surface pavement in any street, the franchisee or licensee shall promptly refill the opening and restore the surface to a condition in accordance with the Town's highway and drainage standards.
(b) 
If the franchisee or licensee excavates the surface of any rights-of-way, the franchisee or licensee shall be responsible for restoration of the rights-of-way and its surface within the area affected by the excavation. The Town may, after providing notice to the franchisee or licensee, refill and/or repave any opening made by the franchisee or licensee in the rights-of-way, and the expense thereof shall be paid by the franchisee or licensee. The Town reserves the right, after providing notice to the franchisee or licensee, to remove and/or repair any work done by the franchisee or licensee which, in the determination of the Town, is inadequate. The cost thereof, including the cost of inspection and supervision, shall be paid by the franchisee or licensee. All excavations made by the franchisee or licensee in the rights-of-way shall be properly safeguarded by the franchisee or licensee for the prevention of accidents. All of franchisee's or licensee's work under this section shall be done in strict compliance with all applicable, rules, regulations and laws of the Town including those set forth in this chapter.
(9) 
Restoration of damage.
(a) 
The franchisee or licensee, at its sole expense, shall restore all damage to property, both public and private, caused by the installation, construction, operation, maintenance or repair of franchisee's or licensee's telecommunications system. Such restoration shall be made as soon as practicable after completion of work necessitating the restoration and shall be done in a manner approved by the DPW.
(b) 
After the franchisee's or licensee's receipt of written notification by the owner of the property so damaged, restoration shall occur as soon as practicable, unless otherwise mutually agreed by the franchisee or licensee and the property owner, provided that if any such damage involves pavements, sidewalks, driveways, water mains, storm and sanitary sewers, traffic control conduits, cable or loop systems or other public facilities or other emergency circumstances, the damage shall be repaired to the Town's satisfaction immediately. In the event that the franchisee or licensee fails to so restore, the Town has the right, but not the obligation, to restore the same and charge the franchisee or licensee therefor. The franchisee or licensee shall reimburse the Town. The franchisee or licensee hereby waives any claims for damages to the telecommunications system that may arise as a result of the Town's actions.
(10) 
Vegetation management. Upon the express written permission of the Town, the franchisee or licensee may trim trees or other vegetation owned by the Town or encroaching upon the public rights-of-way to prevent their branches or leaves from touching or otherwise interfering with its wires. All trimming or pruning shall be at the sole cost of the franchisee or licensee and under the supervision of the Town.
(11) 
Reservation of rights. Nothing in this chapter shall be construed to prevent the Town from constructing sewers, grading, paving, repairing and/or altering any street or rights-of-way or the laying down, repairing or removing sewer and/or water mains or constructing or establishing any other public work or improvement. All such work shall be done, in so far as practicable, so as not to injure or prevent the unrestricted use and operation of the telecommunications system of the franchisee or licensee under this chapter. However, if any of the franchisee's or licensee's telecommunications system interferes with the construction or repair of any rights-of-way or public improvement, including construction, repair or removal of a sewer and/or water main and any other public work or improvement, the franchisee's or licensee's network shall be removed or replaced in the manner the Town shall direct. However, the Town will cooperate with the franchisee or licensee to identify possible alternate locations within the rights-of-way. The franchisee or licensee shall have no vested right in any location. Any and all such removal or replacement shall be at the expense of the franchisee or licensee. Should the franchisee or licensee fail to remove, adjust or relocate its facilities by the date established by the DPW's written notice to the franchisee or licensee, the Town may cause and/or effect such removal, adjustment or relocation, and the expense thereof shall be paid by the franchisee or licensee, including all costs and expenses incurred by the Town due to franchisee's or licensee's delay.
(12) 
Public rights-of-way vacation.
(a) 
If any public rights-of-way or portion thereof used by the franchisee or licensee is vacated by the Town during the term of the franchise agreement or license, and unless the Town Board specifically reserves to the franchisee or licensee the right to continue its installation in the vacated rights-of-way area, the franchisee or licensee shall, without expense to the Town, forthwith remove its telecommunications system from such rights-of-way and restore, repair or reconstruct the rights-of-way area, where such removal has occurred, and place the rights-of-way area in such condition as may be required by the DPW which shall be no worse than the condition of such rights-of-way immediately prior to removal.
(b) 
In the event of the failure, neglect or refusal of the franchisee or licensee, after 30 days' notice by the DPW, to repair, improve or maintain such rights-of-way portions, the Town may do such work, or cause it to be done, and the direct cost thereof shall be charged to the franchisee or licensee.
(c) 
The franchisee or licensee shall have no vested right in any location. The Town will cooperate with the franchisee or licensee to identify alternate locations within public rights-of-way.
(13) 
Maintenance of facilities.
(a) 
The franchisee or licensee shall provide and put in use all telecommunications system facilities necessary to control and carry franchisee's or licensee's telecommunications services so as to prevent injury to the Town's property or property belonging to any person, firm or corporation within the Town. The franchisee or licensee, at its sole expense, shall repair, renew, change and improve said facilities from time to time as may be necessary to accomplish this purpose. The franchisee or licensee shall not construct its telecommunications system in a manner that requires any customer to install cables, ducts, conduits or other facilities in, under or over the Town streets or other public rights-of-way.
(b) 
Franchisee's or licensee's facilities shall be installed, constructed, operated, maintained, used and repaired within the franchise or license area so as to provide for the safety of persons and property, and not to interfere with the free passage of traffic, all in accordance with the Laws of the State of New York and the local laws, resolution, rules and regulations of the Town.
(c) 
The franchisee or licensee shall use the rights-of-way where construction of the facilities can be coordinated with other Town and private construction activities and will least impact the existing condition of the rights-of-way, will least impact traffic during construction and will least impact adjacent neighbors during construction and after installation, all to the extent reasonably practicable.
(14) 
Discontinuance, expiration or abandonment of facilities.
(a) 
Whenever the franchisee or licensee intends to discontinue use of its Telecommunications System, by either expiration, abandonment, failure to renew or default under this chapter, the franchise agreement or license, within all or part of a particular portion of the rights-of-way, and does not intend to use said facilities again in the future, the franchisee or licensee shall submit to the DPW, for the DPW's approval, a completed application describing the facility and the date on which the franchisee or licensee intends to discontinue using such facility.
(b) 
The franchisee or licensee may remove the facility or request that the Town permit it to remain in place. If the franchisee or licensee is permitted to abandon its facilities in place, upon consent of the Town, the Town shall have the right, but not the obligation, to assume ownership of the telecommunications system located within the rights-of-way at no cost, and the franchisee or licensee shall deliver all documents in connection therewith. Notwithstanding the franchisee's or licensee's request that any such facility remain in place, the DPW may require the franchisee or licensee to remove its facilities from the rights-of-way or to modify the facility in order to protect the public health and safety or otherwise serve the public interest.
(c) 
The DPW may require the franchisee or licensee to perform a combination of modification and removal of the facility. The franchisee or licensee shall complete such removal or modification in accordance with a schedule set by the DPW.
(d) 
Until such time as the franchisee or licensee removes or modifies the facility as directed by the DPW, or until the rights to and responsibility for the facility are accepted by another person having authority to construct and maintain such facility, the franchisee or licensee shall be responsible for all necessary repairs and relocations of the facility, as well as maintenance and restoration of the rights-of-way, in the same manner and degree as if the facility were in active use, and the franchisee or licensee shall retain all liability for such facility.
(15) 
Inspection of facilities. The Town reserves the right to require at reasonable times, and upon reasonable notice, the inspection of franchisee's or licensee's telecommunications system in the public rights-of-way during installation and construction and upon completion. The cost of such inspection, if required, shall be the sole responsibility of the franchisee or licensee.
(16) 
Compliance with regulations. All work, including all working conditions and facilities, associated with the installation, construction, operation, maintenance and repair of the telecommunications system shall comply with:
(a) 
All applicable federal, state and county laws, rules and regulations now or hereinafter enacted and all fees, taxes and other payments required hereunder or by such laws, codes, rules or regulations.
(b) 
All applicable laws, codes, resolutions, rules and regulations of the Town now or hereinafter enacted and all fees, taxes and other payments required hereunder or by such laws, codes, rules or regulations.
(c) 
Any insurance/bond requirements associated with street openings in the Town shall be deemed to have been satisfied by the franchisee's or licensee's compliance with the insurance/bond requirements contained herein unless any other applicable laws, rules or regulations for street openings are stricter than those set forth herein, and in such case, the franchisee or licensee shall comply with such stricter requirements.
(d) 
All installation, construction, maintenance and repair shall also comply with the National Electric Safety Code (NEFC) and the National Electric Code (NEC) and the Town shall have the right to reasonable inspections to ensure such compliance.
(17) 
Construction on private property. The telecommunications System shall ran along the public rights-of-way except to the extent that the telecommunications system runs along private property with the permission of the owner thereof, and shall comply with all applicable rules and regulations. The franchisee or licensee shall provide notice to property owners and tenants of the property prior to the permitted construction on such private property, even in the event that the franchisee or licensee has an easement for said property.
(18) 
Public hazards. Any openings or obstructions in rights-of-way on any Town or public property made by the franchisee or licensee shall be guarded and protected at all times, subject to the approval of the DPW, by the placement of adequate barriers, fences, bordering or other protective devices and shall be clearly designated by warning lights. The franchisee or licensee shall indemnify the Town with respect to any claim in connection herewith, unless caused by the Town's negligent acts, and provide insurance therefor.
(19) 
Company identification. The franchisee or licensee shall ensure that all of its vehicles and employees are clearly identified to the general public as being associated with the franchisee or licensee or agents thereof while engaged in construction, maintenance or service of the telecommunications system within the Town.
(20) 
Condition of Town rights-of-way. The franchisee's or licensee's telecommunications system shall be neat and sightly and shall not unnecessarily interfere with the use of rights-of-way. The franchisee's or licensee's cables shall be suspended or buried so as not to endanger or injure persons or property in the rights-of-way. All work performed by the franchisee or licensee in the rights-of-way shall be done so as not to interfere with the use thereof and, when completed, the same shall be left in as good condition as when work was commenced.
(21) 
Noninterference with construction or utilities.
(a) 
All lines, cables and distribution equipment, including poles and necessary appurtenances erected by the franchisee or licensee within the Town, shall be located so as not to obstruct or interfere with the proper use of rights-of-way, and other public ways and places, and to cause minimum interference with the rights of property owners who abut any of the said rights-of-way, and other public ways and places, and not to interfere with existing public utility installations or traffic control systems, as per standard the DPW procedures. The franchisee or licensee shall have no vested right in any location, and such construction shall be removed by the franchisee or licensee at its own cost and expense whenever the same restrictions or obstructions interfere with the operation or location of any future operation or location of said rights-of-way and public places.
(b) 
The franchisee or licensee shall not place poles, conduits or other fixtures above- or belowground where the same will interfere with any gas, electricity, telephone fixtures, water hydrants, traffic control systems and loops or other utility uses, and all such poles, conduits or other fixtures in or upon any public rights-of-way shall be so placed as to comply with all requirements of the Town or other applicable authority and to comply with local regulations, including the aesthetic provisions thereof.
(22) 
No liability. The Town shall not be liable to the franchisee or licensee or to the franchisee's or licensee's customers for any interference with or disruption in the operation of the franchisee's or licensee's telecommunications system, or for any damages arising out of the franchisee's or licensee's use of the public rights-of-way, unless caused by the Town's negligent acts.
B. 
Records/reports required.
[Amended 5-27-2004 by L.L. No. 7-2004]
(1) 
Records and reports. Franchisee or licensee shall keep the Town fully informed as to all matters in connection with or affecting the installation, construction, reconstruction, removal, maintenance, operation and repair of franchisee’s or licensee’s telecommunications system. In addition, if the franchise compensation provisions of § 173-13 apply to a franchisee, the franchisee shall also keep the Town informed as to franchisee’s accounting methods and procedures in connection with the system and with the recording and reporting by franchisee of all revenues and uncollectibles. A franchisee shall keep its books of account and records in such a way that breakdowns of revenues are available by type of service within the Town. Also, the Town may require the keeping of additional records or accounts which are reasonably necessary for purposes of identifying, accounting for and reporting gross revenues and uncollectibles.
(2) 
If a franchisee is required to pay compensation pursuant to § 173-13A, in order to determine the gross revenues received by the franchisee for compensation purposes, each franchisee shall file annually with the Town, no later than 120 days after the end of the franchisee’s fiscal year, a copy of a financial report audited by the franchisee’s certified public accountant covering the telecommunications system only, showing in detail the revenues, expenses, capital expenditures, sources and use of funds, assets and liabilities, a profit and loss statement and a certification that and containing such information as the Town shall specify. Such information or report shall be accurate and complete. The Town may, if it sees fit, have the books and records of franchisee examined by a representative of the Town to ascertain the correctness of the reports agreed to be filed herein.
(3) 
Each franchisee and licensee shall report to the Town such other information relating to such franchisee or licensee as the Town may consider useful and shall comply with the Town’s determination of forms for reports, the time for reports, the frequency with which any reports are to be made and if reports are to be made under oath.
(4) 
Each franchisee or licensee shall provide the Town with access at reasonable times and for reasonable purposes to examine, audit, review and/or obtain copies of the papers, books, accounts, documents, maps, plans and other records of such franchisee or licensee pertaining to their respective agreements. Franchisee or licensee shall fully cooperate in making available its records and otherwise assisting in these activities.
(5) 
The Town may from time to time make inquiries pertaining to a franchisee’s or licensee’s operation of the telecommunications system within the Town of Colonie. The franchisee or licensee shall respond to such inquiries in a timely matter.
(6) 
Each franchisee or licensee shall provide the Town with notices of all petitions, applications, communications and reports submitted by the franchisee or licensee to the FCC, Securities and Exchange Commission or their successor agencies relating to any matters affecting the use of Town public rights-of-way authorized pursuant to the franchise agreement, license or Telecommunications Local Law. Upon written request from the Town, a franchisee or licensee shall provide the Town with such documentation.
(7) 
Within 30 days of receipt, each franchisee or licensee shall submit to the Town copies of all decisions, correspondence and actions by any federal, state and local courts, regulatory agencies and other governmental bodies relating to its telecommunications operations within the public rights-of-way. This subsection shall also apply to legal actions initiated by the franchisee or licensee. The Town shall submit similar information to the franchisee or licensee.
(8) 
Information submitted to the Town is open to public inspection under the New York State Freedom of Information Law. Each franchisee or licensee is responsible for becoming familiar and understanding the provisions of the New York State Freedom of Information Law.
(9) 
A franchisee or licensee may identify information, such as trade secrets, financial records, customer information or technical information, submitted to the Town as confidential under the New York State Freedom of Information Law. The franchisee or licensee shall prominently mark any information for which it claims confidentiality with the word “Confidential,” on each page of such information, prior to submitting such information to the Town. The Town shall treat any material so marked as confidential, until the Town receives any request for disclosure of such information. To the extent authorized by the Freedom of Information Law and other applicable state and federal law, the Town shall maintain the confidentiality of information designated as such by the franchisee or licensee. Within five working days of receiving any such request, the Town shall provide the franchisee or licensee with written notice of request, including a copy of the request. A franchisee or licensee shall have five working days within which to provide a written response to the Town before the Town may disclose any of the requested confidential information. The Town shall retain the final discretion to determine whether to release the requested confidential information in accordance with applicable laws.
C. 
Insurance requirements. The franchisee or licensee shall obtain and maintain in full force and effect throughout the term of their respective agreements, and any extensions or renewals thereof, insurance with an insurance company licensed to do business in the State of New York. Said insurance shall protect the franchisee or licensee and the Town from any claims which may arise directly or indirectly or result from its granting of a franchise agreement or license, including but not limited to activity associated with the placement or maintenance of the franchisee's or licensee's telecommunications system, whether such operations are performed by the franchisee or licensee or by anyone for whose acts the franchisee or licensee may be liable. The Town reserves the right to review these insurance requirements during the effective period of the franchise agreement or license, and any extension or renewal thereof, and to adjust insurance coverage and their limits when deemed necessary and prudent by the Town Attorney, based upon changes in statutory law, court decisions or the claims history of the industry or the franchisee or licensee.
(1) 
The insurance to be maintained by the franchisee or licensee shall include, but shall not be limited to, the following:
(a) 
Workers' compensation and employees' liability insurance supplied in statutory amounts providing protection for employees of the franchisee or licensee in the event of job-related injuries.
(b) 
Automobile liability policies with the limits of not less than $1,000,000 for each accident because of bodily injury, sickness or disease sustained by any person, including death at any time, caused by accident and arising out of the ownership, maintenance or use of any automobiles. In addition, the automobile liability policies shall have limits of not less than $1,000,000 for each accident for damage to property, including all resulting loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of any automobiles.
(c) 
General liability including comprehensive form, contractual, premises/completed operations, explosion, collapse and underground property damage and broad-form property insurance shall be furnished with limits of not less than $1,000,000 for each occurrence, and $2,000,000 annual aggregate, for bodily injury and property damage.
(2) 
The franchisee or licensee agrees that with respect to the above-required insurance, all insurance contracts will contain the following required provisions:
(a) 
The policy shall name the Town of Colonie, and its officers, employees, board members and elected representatives, as additional insureds, as the interests of each insured may appear, as to all applicable coverage.
(b) 
The policy shall provide for 30 days' notice to the Town Attorney for cancellation, nonrenewal or material change.
(c) 
The policy shall provide that all provisions of the franchise agreement or license, as amended, concerning liability, duty and standard of care, including indemnity of this agreement, shall be underwritten by contractual coverage sufficient to include such obligations within applicable policies.
(d) 
Insurers shall have no right of recovery against the Town, it being the intention that the insurance policies shall protect the franchisee or licensee and the Town and shall be primary coverage for all losses covered by the policies.
(e) 
The policy clause "other insurance," shall not apply to the Town where the Town is an insured on the policy.
(f) 
Companies issuing the insurance policies shall have no recourse against the Town for payment of any premiums or assessments which are all set at the sole risk of the franchisee or licensee.
D. 
Faithful performance bond. The franchisee or licensee shall obtain and maintain, at its sole cost and expense, and file with the Town Attorney, a corporate surety bond which shall be annually renewable or multi-year, with a surety company authorized to do business in the State of New York and found acceptable by the Town Attorney, in the amount of 25% of the total project cost to secure franchisee's or licensee's faithful performance of its obligations and faithful adherence to all of the terms and conditions of the franchise agreement or license. The franchisee or licensee shall pay all premiums charged for the bond, and shall keep the bond in full force and effect at all times throughout the term of the franchise agreement or license, including, if necessary, the time required for removal of all of the franchisee's or licensee's telecommunications system facilities installed in the Town's rights-of-way. Each such bond shall contain a covenant or endorsement of the surety to provide 60 days' written notice to the Town Attorney and the franchisee or licensee of such surety's intention to cancel, substantially change, or not to renew such bond. The franchisee or licensee shall, in the event of such notice, obtain, pay premiums for and file with the Town Attorney written evidence of the issuance of replacement bonds prior to the expiration of any such bond.
(1) 
The bond shall provide, but not be limited to, the following condition: There shall be recovery by the Town, jointly and severally from the principal and surety, any and all damages, losses or costs suffered by the Town resulting from the failure of the franchisee or licensee to adhere to the terms and conditions of the franchisee agreement or license. The Town's right to recover under the bond shall be in addition to any other rights it may have pursuant to this chapter, a franchise agreement or a license.
(2) 
If the financial conditions of any bonding company issuing a bond pursuant to this section materially and adversely change, the Town may, at any time, require that any such bond be replaced with such other bond consistent with the requirements set forth in this section.
(3) 
The Commissioner of Public Works reserves the right to stop any work related to the telecommunications system until proper evidence of bonding is furnished.
E. 
Assignment/transfer.
(1) 
The franchisee or licensee may not assign its rights and/or obligations hereunder without the Town's consent except to any subsidiary, parent company or affiliate of the franchisee or licensee or pursuant to any financing, merger or reorganization of the franchisee or licensee; provided that the franchisee or licensee shall have given the Town written notice of such assignment not less than 30 days after the date on which such assignment became effective. Such assignment shall not discharge the franchisee or licensee from liability or responsibility for the performance of the franchisee's or licensee's obligations under this chapter, franchise agreement or a license.
(2) 
In the event of assignment to any other third party by the franchisee or licensee, such assignment shall be subject to and contingent upon the consent of the Town as authorized by resolution of the Town Board, and then only on such conditions as may therein be prescribed and shall not be unreasonably withheld. The franchisee or licensee shall notify the Town of any such assignment requiring the Town's consent not less than 30 days prior to the effective date of the assignment. Such notice shall be accompanied by:
(a) 
The proposed agreement between the franchisee or licensee and the proposed buyer, lessee, mortgagee, assignee or transferee.
(b) 
An agreement from the proposed buyer, lessee, mortgagee, assignee or transferee assuming the provisions of this chapter, franchise agreement or license.
(c) 
A statement setting forth in reasonable detail the identity of the proposed buyer, lessee, mortgagee, assignee or transferee and the nature of its business, and current financial information.
(d) 
The franchisee or licensee shall also provide the Town with any additional information or documents reasonably requested by the Town and an opportunity to meet and interview the proposed assignee or transferee.
(3) 
In the event that the franchisee or licensee complies with the foregoing, the Town shall not unreasonably withhold its consent so long as:
(a) 
The franchisee or licensee shall have paid the Town any reasonable costs incurred by the Town to review the requested consent, including, without limitation, attorney's fees;
(b) 
The proposed assignee or transferee is a reputable entity and the Town has been furnished with reasonable proof thereof;
(c) 
The proposed assignee or transferee is of sound financial condition as reasonably determined by the Town given the obligations to be assumed by the proposed assignee or transferee; and
(d) 
The proposed assignee or transferee agrees to enter into an agreement approved by the Town, which assumes the obligations under this chapter, franchise agreement or license.
F. 
Remaining terms and conditions. The remaining terms and conditions applicable to any franchise or license granted pursuant to this chapter shall be set forth in the separate resolution granting the franchise or license and/or in the franchise or the license itself.
A. 
It shall be the responsibility of each applicant to comply with all applicable laws, ordinances, resolutions, rules, regulations and other directives of the Town and any federal, state or local governmental authority having jurisdiction.
B. 
In addition, all use of the Town rights-of-way shall conform to all federal, state or local highway laws and the Town's highway and drainage standards which are available at the Department of Public Works. Any repair to, or replacement of, any Town infrastructure must be done in accordance with the applicable Department of Public Works standards or specifications. To minimize the impact on the Town infrastructure, trenchless technology shall be the preferred method of installation.
C. 
Prior to final approval, the applicant shall acquire a faithful performance bond for the Town to cover the cost associated with the restoration of the Town rights-of-way and affected Town utilities. Such bond shall be accompanied by a properly executed agreement between the Town and the applicant.
D. 
Those applicants who wish to utilize certain public rights-of-way to install, construct, operate or maintain their telecommunication system within the Town shall be required to obtain a license with the Town for such use when:
(1) 
The use or occupation of such public rights-of-way does not involve the offering or provision of telecommunication services to any person within the Town (i.e., merely passing through); or
(2) 
The use or occupation of such public rights-of-way is for or in connection with the internal operations of such person's business, residence or employment and not for or in connection with the provision or offering of telecommunications services for sale or resale to any person.
E. 
Those applicants who wish to use the Town rights-of-way and will be providing services within the Town shall be required to obtain a franchise with the Town for such use.
A. 
Nondiscrimination. Although the provisions of this chapter apply to all telecommunications providers, no person subject to this chapter shall be required to pay compensation as set forth in the remainder of this § 173-13 until the Town enters into an agreement with the incumbent local telecommunications provider, in which the incumbent local telecommunications provider agrees to pay compensation pursuant to or equivalent to that required by this § 173-13.
[Added 5-27-2004 by L.L. No. 7-2004[1]]
[1]
Editor's Note: This local law also provided for the redesignation of former Subsections A through C as Subsections B through D, respectively.
B. 
Compensation required. For the reason that the public rights-of-way, to be used by franchisee in the operation of its telecommunications system within the boundaries of the Town, are valuable public properties, acquired and maintained by the Town at great expense to its taxpayers, and that the grant to the franchisee of the use of said public rights-of-way, is a valuable property right without which the franchisee would be required to invest substantial capital in rights-of-way costs and acquisitions, the franchisee agrees to pay to the Town as general compensation, during each year of the franchise agreement, a sum equal to the greater of the minimum annual fee or the annual gross-revenue-based fee, as set forth below. In those instances where the telecommunications provider's system is within the Town's rights-of-way but it is not providing telecommunications services within the Town, the fee will be as set forth in § 173-14.
C. 
Annual gross-revenue-based fee. As compensation for the rights and privileges granted by this franchise, the franchisee shall pay to the Town an annual fee equal to 5% of its gross revenues, as defined by this Agreement. The payment of the aforesaid fees shall in no way be construed to include the payment of real estate taxes or permit and application fees to the Town, nor shall such franchise fee constitute a deduction from gross revenues for the purposes of computing the amount of franchise fee due.
D. 
Minimum annual fee. Notwithstanding the fee calculation set forth above, the franchisee shall pay to the Town a minimum annual franchise fee, unless the calculation required above results in a payment greater than the minimum annual fee set forth herein. Such minimum fee shall be $5,000. However, the minimum annual fee for subsequent years shall equal the highest amount paid to the Town as fees for the previous year. The payment of the aforesaid fees shall in no way be construed to include the payment of real estate taxes or permit and application fees to the Town, nor shall such franchise fee constitute a deduction from the minimum annual fee for the purposes of computing the amount of franchise fee due.
[Amended 5-27-2004 by L.L. No. 7-2004]
A. 
Nondiscrimination. Although the provisions of this chapter apply to all telecommunications providers, no person subject to this chapter shall be required to pay compensation as set forth in the remainder of this § 173-14 until the Town enters into an agreement with the incumbent local telecommunications provider, in which the incumbent local telecommunications provider agrees to pay compensation pursuant to or equivalent to that required by this § 173-14.
B. 
For the reason that the public rights-of-way are valuable public properties, acquired and maintained by the Town at great expense to its taxpayers, and that the grant to licensee of the use of said public rights-of-way is a valuable property right without which licensee would be required to invest substantial capital in rights-of-way costs and acquisitions, the licensee shall pay the Town as general compensation for the duration of this license an amount equal to the greater of:
(1) 
A minimum annual fee of $5,000; or
(2) 
A two-dollar-and-fifty-cent-per-lineal-foot annual fee of licensee’s telecommunications system in the Town’s rights-of-way. (The total number of lineal feet of licensees telecommunications system located in the Town’s rights-of-way shall be determined by the as-built maps submitted by the licensee and approved by DPW.)
If any section, subsection, sentence, clause, phrase or other portion of this chapter is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct and independent portion. Such declaration shall not affect the validity of the remaining portions hereof, which other portions shall continue in full force and effect.
The Town Board shall have the right to delegate and redelegate, and to revoke any such delegation or redelegation, from time to time, any of its rights or obligations under this chapter to any body, organization or official of the Town. Any such delegation, redelegation or revocation, no matter how often made, shall not be deemed an amendment to this chapter or to require the consent of any applicant for a franchise or license.
To the extent permitted by law, the Town shall apply all provisions of this chapter to telecommunications providers, franchisees, licensees or other rights-of-way authorizations existing on the effective date of this chapter.
A. 
Failure to comply with the requirements of this chapter shall constitute a violation. Should the Town determine that the franchisee or licensee is in violation of this chapter or their respective agreements, the Town may foreclose on all or any part of any security provided for under this chapter or in the respective agreements, including without limitation, any bonds or other surety; provided however, that the foreclosure shall only be in such a manner and in such an amount as the Town reasonably determines is necessary to remedy the default and provided that the Town shall not make any withdrawals by reason of any violation for which the franchisee or licensee has not been given notice. A person who is found to be in violation of this chapter shall thereafter be made to comply with all applicable requirements and shall be required to submit all paperwork and pay all required fees.
B. 
Failure to obtain the necessary approvals shall additionally result in the payment of late charges for the time period in which the violator did not have approval plus the actual costs incurred by the Town in enforcing this chapter against the person. In such an instance, the offender shall be required to remove all equipment illegally placed in the Town rights-of-way and to restore said property to its original condition in addition to any other penalty provided by law. Failure to properly follow the procedures in this chapter may result in the forfeiture of consideration for future permits by the applicant.
C. 
In the event that a permit has been issued to an applicant by the Town, failure to comply with the requirements set forth by law and all standards required by the Town may additionally result in the forfeiture of the escrow deposit, or a portion thereof, and/or forfeiture of the permit as determined by the Department of Public Works.
This chapter shall take effect upon its proper filing in the Office of the Secretary of State.