Village of Washingtonville, NY
Orange County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Board of Trustees of the Village of Washingtonville 12-21-1999 by L.L. No. 7-1999; amended in its entirety 9-24-2002 by L.L. No. 3-2002. Subsequent amendments noted where applicable.]
GENERAL REFERENCES

Zoning — See Ch. 175.

§ 172-1
Purpose. 

§ 172-2
Construction. 

§ 172-3
Scope. 

§ 172-4
Severability. 

§ 172-5
Definitions. 

§ 172-6
Administration; delegation of powers and authority. 

§ 172-7
Applicability of chapter to service provider or system owner or operator. 

§ 172-8
Relief. 

§ 172-9
Failure of Village Board to enforce chapter. 

§ 172-10
Subject to present and future laws and regulations. 

§ 172-11
Violations; additional remedies. 

§ 172-12
Effect of technical violation of chapter or franchise agreement. 

§ 172-13
Notices. 

§ 172-14
Indemnity. 

§ 172-15
Liability insurance. 

§ 172-16
Performance and completion security. 

§ 172-17
Other types of insurance and bonds. 

§ 172-18
Retention and submission of reports and records. 

§ 172-19
Construction of good quality. 

§ 172-20
Conditions on use of streets and public ways. 

§ 172-21
Street cutting. 

§ 172-22
Duty to remove properties from public streets and rights-of-way. 

§ 172-23
Permits and licenses. 

§ 172-24
Right to inspect system or facilities and to review documents. 

§ 172-25
Safety requirements. 

§ 172-26
through § 172-31. (Reserved) 

§ 172-32
Franchise required. 

§ 172-33
Applications for franchises; authority to grant nonexclusive franchises; required permitting. 

§ 172-34
Franchise agreement; minimum requirements. 

§ 172-35
Extent of grant of franchise; easements. 

§ 172-36
Application for franchise. 

§ 172-37
Franchise fees. 

§ 172-38
Rent or right-of-way use and occupancy fee. 

§ 172-39
Default of franchise; revocation, termination or cancellation of franchise. 

§ 172-40
Notice of violation or failure to comply; hearing. 

§ 172-41
Enforcement; penalties for offenses. 

§ 172-1 Purpose.

§ 172-2 Construction.

§ 172-3 Scope.

§ 172-4 Severability.

§ 172-5 Definitions.

§ 172-6 Administration; delegation of powers and authority.

§ 172-7 Applicability of chapter to service provider or system owner or operator.

§ 172-8 Relief.

§ 172-9 Failure of Village Board to enforce chapter.

§ 172-10 Subject to present and future laws and regulations.

§ 172-11 Violations; additional remedies.

§ 172-12 Effect of technical violation of chapter or franchise agreement.

§ 172-13 Notices.

§ 172-14 Indemnity.

§ 172-15 Liability insurance.

§ 172-16 Performance and completion security.

§ 172-17 Other types of insurance and bonds.

§ 172-18 Retention and submission of reports and records.

§ 172-19 Construction of good quality.

§ 172-20 Conditions on use of streets and public ways.

§ 172-21 Street cutting.

§ 172-22 Duty to remove properties from public streets and rights-of-way.

§ 172-23 Permits and licenses.

§ 172-24 Right to inspect system or facilities and to review documents.

§ 172-25 Safety requirements.

§ 172-26 through § 172-31. (Reserved)

§ 172-32 Franchise required.

§ 172-33 Applications for franchises; authority to grant nonexclusive franchises; required permitting.

§ 172-34 Franchise agreement; minimum requirements.

§ 172-35 Extent of grant of franchise; easements.

§ 172-36 Application for franchise.

§ 172-37 Franchise fees.

§ 172-38 Rent or right-of-way use and occupancy fee.

§ 172-39 Default of franchise; revocation, termination or cancellation of franchise.

§ 172-40 Notice of violation or failure to comply; hearing.

§ 172-41 Enforcement; penalties for offenses.

§ 172-1 Purpose.

The Board of Trustees of the Village of Washingtonville, New York, finds that the health, safety, and welfare of the citizens of the Village of Washingtonville, New York, require that a comprehensive law be enacted which establishes a regulatory framework applicable to systems that utilize the Village's property or rights-of-way within its territorial jurisdiction as permitted by federal and state law. Among other purposes, this chapter enacts regulations pursuant to Section 253(c) of the Telecommunications Act of 1996 governing the use and occupancy of the Village's rights-of-way and Village-owned property by wireline telecommunications systems and service providers, including those service providers known as "cable operators" and "open video system operators," and including provisions for insurance, reports and records, construction and construction-related requirements, safety requirements, municipal compensation, including franchise fees and/or rent, fines and/or penalties, and health and welfare measures; and providing an effective date.

§ 172-2 Construction.

This chapter shall be construed in accordance with applicable federal and state laws and rules and regulations of the Federal Communications Commission and the Public Service Commission, or any successor agency or authority.

§ 172-3 Scope.

This chapter shall apply within the geographical limits of the Village, including any areas subsequently annexed by the Village, unless state law prescribes otherwise, or unless state law restricts or alters the effect of this chapter to a subsequently annexed area of the Village.

§ 172-4 Severability.

If any word, phrase, sentence, part, section, subsection, or other portion of this chapter, or any application thereof to any person, entity or circumstance, is declared void, unconstitutional or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this chapter and all applications thereof not having expressly been declared void, unconstitutional or invalid shall remain in frill force and effect.

§ 172-5 Definitions.

For purposes of this chapter, and where not otherwise inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meaning given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number, and words in the singular number include the plural number. The words "shall" and "will" are always mandatory and not merely directive.

ABANDONMENT
The cessation of use of a system and the provision of any service by or using the system, or any portion of the system, or any component, facility or equipment of the system or service in the Village for a period of time greater than 60 consecutive days.
ADMINISTRATOR
The individual or organization designated by the Village Board to act as the technical and administrative liaison or representative of the Village, the subscriber or users, and the public in the Village, in matters related to the provision of this chapter, and any franchise as defined in this section. The Administrator may be designated as the point of contact for all matters under this chapter and that relate to a franchise or a system owner or operator or service provider. If designated, unless specifically directed otherwise by the Village Board, it shall at all times be presumed that the Administrator is acting as the Village Board's designee and under the Board's direction.
APPLICANT
A person or legal entity submitting an application or proposal to the Village for a franchise to operate a system or to provide service under the terms and conditions set forth in this chapter and in any franchise and in compliance with any state rules or regulations.
APPLICATION or PROPOSAL
For the purposes of this chapter are synonymous and mean the documents submitted, and on which the Village is intended in good faith to rely, for the purpose of being granted a franchise by the Village. An application or proposal shall be deemed to include all written representations and supporting documentation submitted by an applicant to the Village for the purpose of being granted the privilege to occupy or use the Village's property or rights-of-way for commercial purposes as intended under this chapter.
ASSIGNMENT or TRANSFER
The act of changing the person or entity who has ultimate control of the franchisee, the system or the franchise, whether such control is direct or indirect. Transfer or assignment is deemed to be any change in control, in whole or in part, whether by sale, assignment, merger, consolidation, lease or other form of alienation, or any change in the ultimate legal or financial control of the person or entity granted a franchise.
BOARD or VILLAGE BOARD
The Board of Trustees for the Village of Washingtonville, New York, which is the legislative body for the Village of Washingtonville, New York. For purposes of clarification, the Village Board is the franchising authority for the Village of Washingtonville, New York.
DISASTER EMERGENCY
An imminent, impending, or actual natural or humanly induced situation wherein the health, safety or welfare of the residents of the Village is threatened. By way of illustration, a disaster emergency may include a severe climatic or meteorological storm, dam failure, flood, tornado, hazardous waste infiltration, fire, petroleum or chemical spill, explosion, vehicle accident of significant effect, or aircraft crash.
EASEMENT
Includes any compatible use easement, whether created by dedication to the Village or by other means, for public utility purposes or any other purpose primarily benefitting the general public. "Easement" shall also include a private easement granted by a private property owner for the same or similar purposes.
EQUIPMENT
Equipment supplied by the system owner or operator or service provider, which is used to provide, enhance or assist in the reception or provision of service.
FRANCHISE
The document of authorization granted by the Village, regardless of the type of authorization, whether such authorization is a use, occupancy or operating authority, that permits a person to occupy and use the Village's property and rights-of-way for commercial purposes, including to construct, operate, rebuild, replace, upgrade, maintain and repair a system, and to provide service in the Village.
FRANCHISE AGREEMENT
The agreement or contract which the Village and a system owner or operator or a service provider enter into, and that specifies the contractual agreements or commitments between the parties, and which may also serve as a franchise granting the authority to use or occupy the Village's property or rights-of-way. Subject to applicable law, rule and regulation, a franchise agreement may be different in scope and content from other permissible types of grants of authority by the Village.
FRANCHISEE
Any system owner or operator or service provider that has been granted a valid franchise by the Village, and that is subject to the Village's regulatory authority as set forth in this chapter and applicable state law, rules or regulation.
FRANCHISE FEE
A fee charged a service provider or system owner or operator by the Village for the cost of administering the franchise.
FRANCHISING AUTHORITY
The Village Board of the Village of Washingtonville, New York.
A. 

Something that:

(1) 

Is used or is intended to accomplish the same purpose; or

(2) 

Has the same or substantially similar characteristics, qualities and capabilities; or

(3) 

Operates or functions in substantially the same form and fashion; or

(4) 

Operates or functions in a superior manner.

B. 

With respect to matters not involving equipment, the term also means something that equates to or is intended to effect the same or a substantially similar outcome or function in effectively the same manner or for the same purpose.

GRANDFATHER or GRANDFATHERED
To retain or preserve a right, privilege or authority held, so long as the retention or preservation is expressly stated.
GROSS REVENUE
For any period of time, any and all revenues or other valuable consideration of any kind which is derived from the operation of the system and/or the provision of service within the Village, and that is attributable to or occasioned by the grant of the franchise, regardless of the corporate or organizational relationship of the recipient of the revenue with the owner or operator of system or the service provider. Gross revenue shall include the value of any exchange for trade or barter or other items of value.
INTERNET
That interconnected combination of networks that evolved from the original ARPANET experiment and the National Science Foundation subsidized Internet and the interconnection of networks that provides user-to-user, or address-to-address, communications services, broadband service, other programming services, or data services.
MAYOR
The Mayor of the Village of Washingtonville, New York.
NODE or FIBER NODE
That facility at which signals are received and transmitted, retransmitted, relayed or otherwise provided to other portions of the system in light-wave form or are converted to RF signals or a functional equivalent type of signal and are transmitted, retransmitted, relayed or otherwise provided to other portions of the system in the Village, or elsewhere outside the Village.
PERSON
Any individual, corporation, entity, estate, trust, partnership, or any association of two or more persons or entities having a joint common interest or a joint-stock company.
PROPERTY
All the property owned, installed, rented, leased or used by a system owner or operator or service provider holding a franchise granted under or otherwise subject to this chapter that is utilized in the operation of the system or the provision of service in the Village.
PROPOSAL or APPLICATION
A written request to use or occupy the Village's property and rights-of-way for the purpose of constructing, operating, maintaining or repairing a system or to provide service in the Village using the public property and rights-of-way of the Village.
PSC
The Public Service Commission of the State of New York, or any successor agency or commission.
RENT
The compensation paid to the Village by a system owner or operator or service provider for the occupation and use of the public property and rights-of-way of the Village for commercial purposes.
SERVICE
Any service that is provided by means of a system in the Village, and shall include any service, use or other activity provided for commercial purposes that uses or is provided by means of the use of the system, regardless of the technology employed.
SERVICE PROVIDER
Any person who provides service using a system that occupies or uses the Village's property or rights-of-way providing service using a system as defined in this section and who owns a significant or attributable interest in the provider of such service or in the system; or who, through any arrangement, otherwise controls or is responsible for the management and operation of a service or system in the Village, or who has the authority to establish or change policy, or order the establishment or change of policy with respect to the provision of service or the system within the Village.
STREET
The surface of, and the space above and below a public street, path or thoroughfare designated for vehicular and/or pedestrian traffic, and any easements associated therewith, and other easement now or hereafter held by the Village, and includes any sidewalks or other paved pedestrian ways and any public or Village-owned rights-of-way.
SYSTEM
A facility consisting of a set of closed transmission paths and associated facilities and equipment that is designed to provide service of a commercial nature, to subscribers or users within the Village, including the provision or use of data used to maintain and operate the system. However, "system" does not include the following:
A. 

A facility that serves only to retransmit the television signals of one or more broadcast stations; or

B. 

A facility that serves only subscribers or users in one or more multiple-unit dwellings under common ownership, control or management, unless such facility occupies or uses any Village-owned property or Village rights-of-way for the provision of or to distribute service or to generate revenue for commercial purposes, in which case it shall be deemed a system; or

C. 

A facility of a common carrier which is subject to the provisions of Title II of the Communications Act of 1934 as amended, but only to the extent that such exemption relates to the services provided at the time the operating authority was originally granted, or that state or federal law, rule or regulation expressly exempts from compliance with this chapter; or

D. 

Any facilities of any electric utility used solely for operating its electric utility; or

E. 

Any system not using and occupying the Village's property or rights-of-way.

TECHNICAL VIOLATION
A violation of this chapter or any franchise that is of de minimus negative effect on the Village or the public and that is not repeated after notice by the Village. Notwithstanding the preceding, a history or repeated pattern of the same or similar technical violation shall not be deemed a technical violation.
USER
A person utilizing a system and/or its equipment, facilities or capabilities for commercial purposes, as opposed to the receipt of service as a subscriber to service.
WORK DAY or WORKING DAY
Those days when the majority of retail businesses in the Village are customarily open for business.
WRECK OUT
In the context of and with respect to any construction, rebuild, upgrade, modification or maintenance activity of a system, the removal of the old cable, wires, parts and components of any portion of the system not currently and actively used in the provision of service in the Village.

§ 172-6 Administration; delegation of powers and authority.

A. 

The Mayor is hereby designated the individual responsible for the continuing administration of this chapter and matters related to providers of service that use or occupy the property of the Village, the streets or the Village's rights-of-way for a commercial purpose.

B. 

Unless expressly prohibited by federal, state or local law, the Village Board or the Mayor may delegate authority to assist in the administration of this chapter or a franchise granted pursuant to this chapter.

§ 172-7 Applicability of chapter to service provider or system owner or operator.

A. 

System owners or operators and service providers who use or occupy the Village's streets, property or rights-of-way and who are not expressly exempted from compliance with this chapter by prior state law are subject to and shall be governed by the requirements and provisions of this chapter and any amendments thereto.

B. 

Any service provider or any system owner whose original grant of authority to use and occupy the Village's property or rights-of-way for commercial purposes that did not expressly grant the right to provide service as defined in § 172-5 of this chapter shall be deemed subject to the provisions of this chapter, except to the extent that the provision of a type of service provided under the original grant of authority to use and occupy the Village's property, streets or rights-of-way for commercial purposes, as expressly set forth therein, may be exempted or grandfathered, as determined by the Mayor, with respect to payments or fees to the Village as required under this chapter.

C. 

In the event of any conflict or ambiguity between the requirements of this chapter and any franchise subject to this chapter, this chapter shall control, unless the requirement or provision is expressly preempted by federal or state law, rule or regulation, or unless the issue is expressly addressed in the franchise in the context of relief from this chapter. Any relief or variance from the provisions of this chapter shall be considered in accordance with § 172-8 of this chapter, and such relief or variance shall be expressly set forth in any franchise agreement.

D. 

This chapter shall not be deemed to, nor shall it, change, impair or repeal the terms or conditions of any franchise, agreement or contract granted prior to the effective date of this chapter to the extent that such expressly contains a lesser or less stringent obligation, requirement or commitment that is expressly enumerated in the existing franchise, agreement or contract, as regards the expressly stated and intended purpose and use of the Village's property or rights-of-way.

E. 

When a franchise agreement, contract or use and occupancy authority granted prior to the effective date of this chapter is silent on a matter addressed in this chapter, and absent express language to the contrary or limiting the Village's right to adopt additional regulatory requirements regarding the regulation of the commercial use and occupancy of the Village's property, streets and rights-of-way in the franchise, agreement or contract, the applicable provisions of this chapter shall apply.

F. 

With respect to a service provider or system owner or operator holding a franchise, agreement, contract or use and occupancy authority granted prior to the effective date of this chapter, this chapter shall be of effect upon the expiration of the existing franchise agreement, contract, or use and occupancy authority, or when one of the following occurs:

(1) 

Prior to the expiration date of a franchise, and at the request of the holder of such, the document is amended; or

(2) 

Both parties agree to a specific date for the expiration date which is prior to the expiration date in existence on the date of adoption of this chapter; or

(3) 

A court of competent jurisdiction orders that an existing service provider or system owner or operator become subject to all, or any part or provision, of this chapter, or finds that a service provider or system owner or operator is not exempt from all, or any part or provision, of this chapter.

G. 

Any service provider or system owner or operator shall be required to comply with the safety requirements and provisions of this chapter, unless the agreement, contract or other operating authority granted prior to the effective date of this chapter states otherwise.

H. 

Unless a franchise, agreement or contract granted prior to the effective date of this chapter states otherwise, all system owners or operators or service providers shall abide by the construction and construction-related requirements and provisions of this chapter when performing any construction, rebuild, upgrade, repair, change or replacement of equipment or facilities.

I. 

Notwithstanding anything to the contrary in this section, unless otherwise expressly grandfathered in an existing franchise granted prior to the effective date of this chapter, in order to assure the protection of the health and safety of the public, any and all service providers or system owners or operators shall be subject to and shall be required to comply with all safety regulations, requirements and provisions of this chapter at all times, including:

(1) 

The latest edition of the National Electrical Code, including any amendments;

(2) 

The latest edition of National Electrical Safety Code, including any amendments; and

(3) 

Any other applicable safety and safety-related codes or regulations of the Village, county or state as such exist as of the effective date of this chapter or as may be adopted from time to time.

§ 172-8 Relief.

A. 

Any service provider or system owner or operator subject to the provisions of this chapter may file a written petition at any time with the Village Board seeking relief from one or more provisions of this chapter. A service provider or system owner or operator may specifically request exemption or relief from, or delay in the implementation of, one or more provisions of this chapter, but only as to the petitioning provider, owner or operator and not to any successors in interest or assignees.

B. 

In concert with the stated intent of the Telecommunications Act of 1996 to promote and facilitate competition, and so as not to hinder the development of competition, the Village Board may determine that the relief granted be applicable for a specified or limited length of time or duration, pending a determination of the effect of the relief on the petitioner's ability to compete effectively at the expiration of the period of time for which relief is granted. In the event that it is determined by the Village Board that the system owner's or operator's, or service provider's, ability to compete effectively is substantially hindered by compliance, relief shall then be granted for the remaining term of the franchise or until the ability to compete effectively is no longer hindered.

C. 

Any petition submitted pursuant to this section shall set forth the relief requested and the reason and basis thereof, with such supporting information and material as may be applicable and as may be deemed necessary by the Village Board to make an informed decision.

D. 

All requests for relief shall contain a clearly articulated explanation or rationale for each item or matter being requested. Any request submitted pursuant to this section that does not contain such information shall be deemed incomplete and returned to the petitioner without action.

E. 

In order to be granted relief from one or more of the provisions of this chapter, a service provider or system owner or operator must demonstrate to the Village Board with reasonable certainty that at least one of the following facts exists:

(1) 

The provision or requirement is expressly prohibited by federal law, rule or regulation, or by state law, rule or regulation; or

(2) 

Where applicable, that the provision in question negatively and materially affects the petitioner to the extent that the provision or requirement creates an insurmountable competitive disadvantage not permitted or contemplated under federal or state law, or is in substantial conflict with a right that is expressly stated in an existing franchise. However, such relief shall only be for the remaining term of the existing franchise. This provision specifically includes, but is not limited to, situations where a service provider or system owner or operator classified as a cable operator or open video system operator seeks, and is granted, modification of an existing franchise under Section 625 of the Cable Act (codified at 47 USC 545); or

(3) 

That compliance with a particular provision and/or requirement will be commercially impracticable for the system owner or operator or service provider; or

(4) 

That one or more time requirements listed in this chapter are either impracticable or impossible to meet; or

(5) 

That the service provider or system owner or operator has its own policy which the Village Board deems comparable to, or better than, the provision or requirement from which the service provider or system owner or operator seeks relief; or

(6) 

That the health, safety, and welfare and the legitimate and reasonable interests of the Village and the public otherwise warrant the granting of such relief and will not be adversely affected to a significant extent.

F. 

The Village Board shall be the determiner of whether a request for relief has met one or more of the requirements of this subsection.

G. 

A service provider or system owner or operator may petition the Village Board at any time for clarification concerning the precise intent and effect that any provision or requirement of this chapter has on the petitioning service provider or system owner or operator.

H. 

In those instances where the Village Board grants an exemption or relief or deems a service provider's or system owner's or operator's operational policy to be comparable to, or better than, a provision of this chapter, then within 60 days of the grant of relief the franchise shall be formally amended to reflect the exact extent of such exemption and/or relief.

I. 

It shall be the responsibility of the service provider or system owner or operator to include with its request a proposed resolution of amendment setting forth the intended effect in a clear and unambiguous manner, and any changes to the language shall be submitted to the Village Board 30 days prior to the meeting at which the amendment is intended to be made.

J. 

The benefit of any exemption or relief shall extend only to the service provider or system owner or operator granted such exemption or relief. In the case of a subsequent transfer, assignment, change of control or sale of the system to a person without a record of performance in the Village, the proposed transferee, assignee, controlling entity or buyer, if required by the Village Board, shall be required to petition separately for any relief or exemption. Unlike certain other amendments to a franchise, there shall be no automatic transfer of any exemption or relief to a transferee. However, any grant of comparable policy shall continue without the need for any additional approval or grant by the Village Board.

§ 172-9 Failure of Village Board to enforce chapter.

It being a reasonable assumption that responsible persons of good intent will comply with laws, and to prevent the Village from having to constantly monitor compliance with each and every aspect of a service provider's or system owner's or operator's every action, a service provider or system owner or operator shall not be excused from complying with any of the requirements of this chapter, or any subsequently adopted amendments to this chapter, by any failure of the Village on any one or more occasions to seek or insist upon prompt compliance with such requirements or provisions.

§ 172-10 Subject to present and future laws and regulations.

A. 

Any service provider or system owner or operator, and any assignee or transferee, shall be subject to and required to abide by all applicable laws and/or regulations now or hereafter adopted by and in effect within the Village, including this chapter, to the extent that the service provider or system owner or operator has not been granted an exemption or relief from said law(s) and/or resolution(s).

B. 

Subject to the provisions of § 172-7 of this chapter, in the event the Village Board amends this chapter and the amendment of the chapter would have the effect of either requiring the investment of substantial additional capital by the service provider or system owner or operator, or of unilaterally changing the process for default and/or revocation of a service provider's or system owner's or operator's franchise, or impairing the service provider's or system owner's or operator's franchise, then such amendment shall have no effect on the service provider or system owner or operator until the expiration of the franchise.

C. 

Unless otherwise stated in a franchise, all service providers or system owners or operators shall be required to comply with any amendments of this chapter that regulate matters of safety or construction or construction-related matters, within 180 days of the effective date of the amendment, unless otherwise stated in the amendment or the franchise.

§ 172-11 Violations; additional remedies.

A. 

Violations of this chapter shall be handled in the manner prescribed by applicable state law.

B. 

In addition and not in lieu of the above, where fines and/or penalties and/or other remedies as set forth herein are applicable to a violation of this chapter, or for a breach of a franchise, then such fines, penalties or remedies shall operate as a separate and independent remedy for the Village.

§ 172-12 Effect of technical violation of chapter or franchise agreement.

A service provider or system owner or operator shall not be subject to penalties, fines, forfeitures, revocation or involuntary termination of a franchise for a technical violation of this chapter or a technical breach of a franchise. For purposes of this chapter, technical violations or breaches include the following:

A. 

Instances or matters where a violation of this chapter or, where applicable, a franchise, was a good faith error that resulted in no negative impact on the residents, within the Village, or on the Village itself, or where such violation resulted in de minimus effect on any of the preceding persons or the Village; or

B. 

Instances or circumstances that are reasonably beyond the control of a service provider or system owner or operator, including force majeure situations, and that prevent a service provider or system owner or operator from complying with this chapter or the franchise.

§ 172-13 Notices.

Any notice provided for herein shall be delivered by U.S. certified mail, return receipt requested, or by personal service with a signed receipt of delivery, or by overnight delivery with receipt verification. The delivery of all notices not personally served shall be deemed to have occurred at the time of mailing.

§ 172-14 Indemnity.

To the full extent permitted by federal and/or state law, a service provider or system owner or operator shall at all times be required to defend, indemnify, protect, save harmless and exempt the Village, the Village Board, the Mayor, their officers, agents, servants, consultants and employees, from any and all penalties, damages, or charges arising out of claims, suits, demands, causes of action, or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might be claimed now or in the future, which may arise out of, or be caused by, the construction, erection, location, upgrade, system or service performance, operation, maintenance, repair, installation, replacement, removal or restoration of the system or service within the Village by an act or omission of a service provider or system owner or operator, its agents or employees, contractors, subcontractors, independent contractors, or implied or authorized representatives. With respect to the penalties, damages or charges referenced herein, reasonable attorneys' fees, consultants' fees, and expert witness fees are included as those costs which shall be recovered by the Village from the service provider or system owner or operator.

§ 172-15 Liability insurance.

A. 

A service provider or system owner or operator shall secure and maintain, for as long as it operates the system or provides service within the Village, public liability insurance, property damage insurance, and umbrella insurance coverage in at least the following amounts:

(1) 

Public liability: $3,000,000 per person/per occurrence;

(2) 

Property damage: $3,000,000 for any one claim;

(3) 

Umbrella liability: $5,000,000.

B. 

A service provider's or system owner's or operator's public and personal liability and property damage insurance policy shall expressly include the Village, the Village Board, the Mayor and employees of the Village as additional named insureds.

C. 

The public and personal liability and property damage insurance policy shall be issued by an agent or representative of an insurance company licensed to do business in the state, and which has one of the three highest or best ratings from the Alfred M. Best Company, or an equally reputable rating service.

D. 

The liability and property damage insurance policy shall contain an endorsement obligating the insurance company to furnish the Village Board with at least 30 days' written notice in advance of the cancellation of the insurance.

E. 

Renewal or replacement policies or certificates shall be delivered to the Village Board at least 30 days prior to the expiration of the insurance which such policies are to renew or replace.

F. 

Before a service provider or system owner or operator shall use the Village's rights-of-way, it shall deliver to the Village copies of the policies or certificates of insurance representing the required insurance, and each policy or certificate delivered shall be accompanied by evidence of payment of the full premium thereof for the period covered by the policy.

G. 

If the state permits a service provider or system owner or operator to be self-insured, then the Village Board may, at its sole discretion, permit the service provider or system owner or operator to be self-insured, so as long as the minimum amounts of insurance coverage outlined in this section are met and maintained for the entire period that the service provider or system owner or operator is self-insured, and the service provider or system owner or operator can demonstrate to the satisfaction of the Village Board that it has the financial ability to pay in a timely manner up to the maximum amount per category as set forth in Subsection A of this section.

§ 172-16 Performance and completion security.

A. 

A service provider or system owner or operator shall provide to the Village a performance bond and/or a construction/completion bond or other approved security prior to the time it commences any construction, upgrade, rebuild, or repair/maintenance project that has a capital construction cost or outlay exceeding $100,000. In determining the cost, the cost of the entire project shall be used. The amount of the bond or other security shall equal at least 75% of the projected capital cost. Any component parts or portions of a project subject to the requirements of this subsection that are undertaken within a twelve-month period shall be deemed the same project.

B. 

To minimize and control the disruption of the normal and usual use of the streets and rights-of-way in the Village, any bond or other permitted form of security shall expressly guarantee that a service provider or system owner or operator will in a timely manner abide by the schedule for the project as approved by the Village Board or Administrator and that the service provider or system owner or operator will complete the project in a timely manner.

C. 

If the Village Board draws on a bond or other permitted form of security as a result of a service provider's or system owner's or operator's failure to timely and fully discharge its obligations and complete any project subject to this subsection, then the affected service provider or system owner or operator shall be required to replenish the bond or security to the previous level within 30 days of the date of the draw down.

D. 

In lieu of a performance bond and/or a construction/completion bond, at its sole discretion, the Village Board may accept alternative forms of security, including a written guarantee of a service provider or system owner or operator pledging the full faith and credit of the affected service provider's or system owner's or operator's ultimate parent.

E. 

The Village Board, by resolution adopted and amended from time to time, may specify the type(s) of security it will accept as a bond or other guarantee.

§ 172-17 Other types of insurance and bonds.

Notwithstanding other insurance and bond requirements, a service provider or system owner or operator shall obtain and maintain any other required types of insurance and bonds, including but not limited to workers' compensation insurance and automobile liability insurance, that are mandated by either federal or state law, rule or regulation in at least the required minimum amounts, and according to the minimum terms and provisions mandated by the federal or state law, rule or regulation.

§ 172-18 Retention and submission of reports and records.

A. 

A service provider or system owner or operator shall maintain and, upon request by the Village Board or its designee, provide records which, in the opinion of the Village Board, are reasonably necessary for the Village to determine compliance with the provisions of this chapter.

B. 

As part of any compliance review or evaluation, or for any legitimate matter related to the administration and enforcement of this chapter or a service provider's or system owner's or operator's franchise, or any permitted operation under this chapter, the Village Board or the Administrator may require the provision of any reports, records, data or other information filed with the FCC, the Securities and Exchange Commission (SEC) or any other federal or state agency that affects the ownership or operation of the system or the provision of service in the Village. However, unless the Village is expressly authorized to require such by state or federal law, a service provider or system owner or operator shall not be required to provide any state or federal tax returns, or any documents that are expressly exempted under state or federal privacy laws, including any applicable provision of the PSC and Section 631 of the Cable Act (codified at 47 USC 551).

C. 

The Village shall have the right and authority to require the delivery to the Village of any information related to determining the adequacy of any payments due the Village, including, but not limited to, franchise fee payments, rent, user fees, licenses or taxes. The Village may not require the delivery of original documents, but may require the delivery of photostatic copies of such.

D. 

In addition to the requirements noted in the preceding subsections of this section, a service provider or system owner or operator shall in a timely manner submit those reports, statements and logs required by this chapter that are necessary for the proper and diligent administration and enforcement of this chapter or any franchise granted by the Village, including, but not limited to, the following:

(1) 

System maintenance reports as set forth in this chapter;

(2) 

Any form, including all attachments and exhibits thereto, relating to an assignment or transfer of the franchise or any change of control of a system operator or service provider;

(3) 

A copy of any required state authorization to operate a system or provide service using a system.

§ 172-19 Construction of good quality.

All construction, rebuild, upgrade, installation or maintenance of any system or facilities shall be done using only materials of good and durable quality, and all work shall be performed in a safe, thorough, reliable and workmanlike manner.

§ 172-20 Conditions on use of streets and public ways.

A. 

At all times and without exception, all wires, conduits, cable (whether coaxial, fiber or a functional equivalent), and other property and facilities of a service provider or system owner or operator shall be located, constructed, installed, and maintained so as not to endanger or unnecessarily interfere with the usual and customary use, traffic and travel upon the streets, rights-of-way, easements, and public ways of the Village, or any private property adjacent to, crossed or used by a system owner or operator or service provider.

B. 

In the event a service provider or system owner or operator's system or facilities create a hazardous or unsafe condition, or are part of or a party to a hazardous or unsafe condition, including, but not limited to, those standards and requirements set forth in this chapter that are intended to protect the safety of persons and property, or create an avoidable or unreasonable interference with the use of public or private property, the service provider or system owner or operator shall upon discovery, voluntarily or upon notice by the Village, remove or modify that part of the system or facilities so as to eliminate the condition in a prompt and expeditious manner.

C. 

At no time and under no circumstances shall a service provider or system owner or operator place equipment where it will unduly, unreasonably or impermissibly interfere with the rights of property owners, or with any utility or service intended to benefit the general public, or any other service or facility that benefits or protects the health, safety, or welfare of the Village or its residents.

D. 

A service provider or system owner or operator, either at its own expense or that of a private contractor, shall at all times and without exception protect all property, including public property and the Village's rights-of-way and easements, and shall support or temporarily disconnect or relocate any property of the service provider or system owner or operator when necessitated by reason of:

(1) 

Traffic conditions;

(2) 

Public safety;

(3) 

Temporary or permanent street closing;

(4) 

Street construction or resurfacing;

(5) 

A change in, or establishment of, a street grade;

(6) 

Installation, repair or modification of sewers, drains, water pipes, storm drains, lift stations, force mains, power or signal lines, and any traffic control system; or

(7) 

Any improvement, construction, repair or public works project related to the Village's or its residents' health, safety or welfare.

E. 

Upon request by any person or individual desiring to work or have work performed near or around a system's or a service provider's facilities that are placed underground, it shall at all times be the responsibility of a service provider or system owner or operator to locate or have located all components of the system or facilities, and mark or otherwise visibly indicate and alert others to the location of the underground wires, cable, fiber or a functional equivalent and any associated equipment of facilities, prior to the start date of such work. It shall be the responsibility of the entity intending to or actually performing underground work to notify the service provider or system owner or operator at least 10 days prior to the intended start date of the need to locate the service provider or system owner or operator's underground lines and equipment and to inform the service provider or system owner or operator of the intended start date. All digging work shall be coordinated for markings with other underground utility companies.

F. 

No service provider or system owner or operator may engage in any underground work or disturb the subsurface of any ground without first having had located and marked all utilities and facilities placed underground at the same location.

G. 

On the request of any person holding a building moving permit or the equivalent, a service provider or system owner or operator shall temporarily remove, raise or lower its wires and facilities to allow the moving or relocation of the building. The expense of temporary removal, raising or lowering of the wires and facilities shall be paid by the person requesting such, and the service provider or system owner or operator may require payment in advance. The affected service provider or system owner or operator shall be given not less than 14 days' notice of a contemplated move to arrange for temporary wire changes.

§ 172-21 Street cutting.

The Village reserves the right to establish and amend an application and permitting process requiring a street cutting permit from the Village, including a fee for such permit, prior to cutting, penetrating, opening or in any way compromising or affecting the surface or integrity of the surface of any public street or sidewalk.

§ 172-22 Duty to remove properties from public streets and rights-of-way.

A. 

In the event of the nonrenewal of a service provider's or system owner's or operator's franchise, or the involuntary termination or revocation of the franchise, subject to the continuity of service provisions outlined in this chapter, and unless the Village or another person indicates its lawful intent to acquire and use the system or the facilities, the affected service provider or system owner or operator shall promptly remove its system from the streets, public ways and private property located within the Village, including all facilities, equipment and other property. The removal shall be at the sole expense of the affected service provider or system owner or operator and shall be completely removed within 90 days of the date of expiration, or the date of revocation and involuntary termination, of its franchise, or within 90 days of a lawful order or directive from the Village, whenever any of the following occurs:

(1) 

The service provider or system owner or operator ceases to operate all or any part of the system or provide service for more than 24 consecutive hours without the express written permission of the Village Board or the Administrator, other than for reasons of force majeure;

(2) 

The service provider or system owner or operator fails, without the express written permission of the Village Board, to construct, rebuild or upgrade the system or provide service as contained in an application or proposal for renewal, or in a franchise or an amended franchise;

(3) 

The Village Board elects not to, and affirmatively acts not to, renew the franchise, pursuant to the provisions set forth in this chapter and, if such action is appealed, pending a final ruling or determination by a court of competent jurisdiction; or

(4) 

The service provider's or system owner's or operator's franchise is revoked pursuant to the provisions set forth in this chapter and, if appealed, pending a final ruling or determination by a court of competent jurisdiction.

B. 

The service provider or system owner or operator shall remove all of its cable, lines, wires, property, facilities and equipment located in the Village's streets and rights-of-way in the manner and time frame prescribed in Subsections C through F of this section.

C. 

If not removed voluntarily by the service provider or system owner or operator pursuant to Subsections A and B of this section, then the Village may notify the service provider or system owner or operator that if removal of the property is not accomplished within 90 days, or substantial progress towards removal is not made within 75 days, then the Village may direct its officials or representatives to remove the service provider or system owner or operator's property, facilities, equipment, cable and wires at the expense of the service provider or system owner or operator.

D. 

If officials or representatives of the Village remove, or cause to have removed, a service provider's or system owner's or operator's cable, lines, wires, property, facilities and equipment, and the service provider or system owner or operator does not claim the property within 90 days of its removal, then the Village may take whatever steps are permissible under state law to declare the property surplus, and sell it, and, if permitted by state law, the proceeds of the sale shall go to the Village.

E. 

When the service provider or system owner or operator removes its system and any other property, facilities, equipment, cable or wires from the streets and public property and rights-of way within the Village, the service provider or system owner or operator shall, at its own expense, and in a manner approved by the Village, replace and restore the public or private property to a condition comparable to that which existed before the work causing the disturbance or any damage was done.

§ 172-23 Permits and licenses.

A service provider or system owner or operator shall obtain, at its own expense, all permits and licenses required by local law or county or state law, or state, county or local rule or regulation, and shall maintain the same, in full force and effect, for as long as required by the Village or the agency granting the permit or license.

§ 172-24 Right to inspect system or facilities and to review documents.

A. 

In order to verify that a service provider or system owner or operator constructs, rebuilds, upgrades, maintains and repairs the system and facilities in the manner required by this chapter, the Village shall have the right to inspect all portions and facets of a service provider's or system owner's or operator's facilities, in the Village.

B. 

The Village shall have the right to require the delivery to the Village, or its designee, true, accurate and unexpurgated copies of any and all records and documents related to any tests and inspections conducted by the system owner or operator or the service provider for purposes of review and analysis as may deemed necessary to administer and enforce this chapter and any franchise.

§ 172-25 Safety requirements.

A. 

All system owners or operators or service providers shall at all times and without exception comply with the most current editions of the National Electrical Safety Code (NESC), the National Electrical Code (NEC) and the Occupational Safety and Health Act (OSHA). Any changes in or amendments to these codes and law shall be deemed to have been automatically adopted by the Village with respect to this chapter, unless expressly rejected by the Village Board.

B. 

In cases involving safety issues related to utility poles, including the requirement to regularly inspect the system and facilities for violations of the NESC, including but not limited to issues of minimum clearances or impermissible contact of the facilities of two occupants of the poles, and where there is a question as to which party caused the violation, the system owner or operator or the service provider may be required to provide the following, as applicable under the circumstance:

(1) 

A copy of the request for makeready for the situation at that location showing the date of the request; or

(2) 

A copy of the signed and dated work order showing the date of installation for the particular subscriber or address; or

(3) 

A copy of the signed and dated work order for the latest service call for the particular subscriber or address.

C. 

In cases involving Subsection B(2) or (3) of this section, where individually identifiable subscriber information may be revealed, it shall nevertheless be the responsibility of the system owner or operator or service provider to provide proof of the date in question, but without identifying the name of the subscriber, unless the subscriber's permission has been obtained.

D. 

To provide for the protection of the health and safety of persons and property in the Village to the maximum extent reasonably possible, the Village deems it necessary to adopt a policy of "zero" tolerance of safety-related violations associated with any system or the provision of any service in the Village, excepting those caused by subscribers, users or the public and which the service provider was not aware of or could not reasonably have been aware existed. However, it shall always be the responsibility of the service provider or system owner or operator to remedy and eliminate any safety-related violations associated with its system or service as such may be found or reported, or if caused by a third party, to diligently pursue the remedy and elimination of the violation.

E. 

To enable the Village to take any needed action or precaution to alert or otherwise protect persons and property in the Village, it shall be the responsibility and obligation of any service provider or system owner or operator to report to the Village any violation of safety codes, regulations or requirements or the construction or construction-related requirements of this chapter that is identified and is not able to be remedied within 24 hours of the time of its identification, or if caused by a subscriber or user, and due to the location on private property is not able to be remedied within the required 24 hours. For purposes of this subsection, unless impracticable, the notice to the Village shall be required to be done the same day by phone, and the next day in writing.

F. 

It shall be the immediate and primary responsibility of the service provider or system owner or operator to place appropriate and effective warning signs and protective devices or barriers at the site of any situations that could reasonably be expected to cause personal injury or property damage.

G. 

There shall be no fine or penalty assessed or imposed for construction or construction-related or safety or safety-related violations that by the system owner's or operator's or service provider's own accord and volition are reported to the Village in accordance with Subsection D of this section prior to any injury or harm having been caused, and provided that the report of a situation occurs prior to or on the same day as a third party report that the Village receives that is relevant to this section, and if the violation is eliminated within 24 hours, or in such timeframe as may otherwise be approved by the Village Board or the Administrator.

§ 172-26 through § 172-31. (Reserved)

§ 172-32 Franchise required.

A. 

No person, service provider or system owner or operator shall be permitted to construct, build, rebuild, upgrade or operate a system or provide service in, along, over, under or across Village property or streets or rights-of-way of the Village, without having first obtained a franchise, unless such person, service provider or system owner or operator is exempted from this requirement under state or federal law.

B. 

No franchise shall be required for either the Village, or for any authority affiliated with the Village, to own a system or provide service in the Village, or to operate as a service provider or system owner or operator in the Village, unless required to do so by state law.

§ 172-33 Applications for franchises; authority to grant nonexclusive franchises; required permitting.

A. 

The Village Board may award one or more nonexclusive franchises within its corporate limits and no franchise may be exclusive.

B. 

A service provider's or system owner's or operator's application or proposal shall be evaluated and approved or disapproved as part of a public proceeding and hearing which affords the applicant and the public an opportunity to be heard, and which is in accordance with applicable federal and state laws, rules and regulations.

C. 

Any service provider or system owner or operator shall proceed with due diligence and its best efforts to obtain, at its own costs, all necessary permits, licenses, and authorizations which are required for the conduct of its business in the Village within 30 days after the effective date of an initial franchise, including, but not limited to, any private easement agreements, business licenses, utility joint use or attachment agreements, microwave carrier licenses, and any other permits, licenses and authorizations needed to lawfully provide service or operate a system within the Village.

D. 

A service provider or system owner or operator shall have in its possession all necessary and required permits, easements, agreements and licenses prior to the commencement of any construction, rebuild or upgrade of the system, and, if applicable, the provision of service.

§ 172-34 Franchise agreement; minimum requirements.

A. 

A service provider or system owner or operator subject to this chapter is prohibited from laying, installing, constructing or using any cable, lines or wires, whether coaxial, fiber, or a functional equivalent, or any other equipment or facilities, on Village-owned property or in the Village's streets or rights-of-way until a franchise is fully executed and is in effect, including approval by the PSC if such is required.

B. 

A franchise shall be sufficiently detailed so as to clearly delineate the rights, privileges, duties, obligations and limitations of the parties concerned and the duration of the franchise.

C. 

As permitted, and as may be applicable to a particular class or type of service provider or system owner or operator, a franchise shall, at a minimum, contain and address the following matters:

(1) 

The term or duration of the franchise;

(2) 

An indemnity and hold harmless provision;

(3) 

An insurance commitment, as required;

(4) 

Completion bonds or other security, as required;

(5) 

The clearly designated service area;

(6) 

The construction, upgrade or rebuild schedule, if applicable;

(7) 

A fee or rent for the commercial use and occupancy of the Village's property and rights-of-way;

(8) 

A commitment to abide by any and all laws, rules and regulations that govern the franchise or its use and occupancy of the Village's property and rights-of-way and the provision of service.

D. 

Without limitation other than as may be established by supersedent law, the Village shall always have the right to require additional matters, issues and subjects to be contained in a franchise, as may be reasonably deemed necessary in the interest of and to protect the Village and its residents.

§ 172-35 Extent of grant of franchise; easements.

A. 

A service provider or system owner or operator required to obtain a franchise may construct, erect, install, maintain, rebuild, upgrade, operate, repair, replace, remove, and restore service or a system within the geographical limits set forth in the franchise, but only to the extent permitted by this chapter and the terms and conditions of the franchise.

B. 

The system may be located in, upon, along, across, over, and under the streets, rights-of-way, easements, and public ways of the Village as more specifically set forth in the franchise, but only to the extent set forth in this chapter and the franchise.

C. 

A service provider or system owner or operator shall be solely and separately responsible for obtaining any required easements for the use of private property, including privately owned utility or street light poles, solely at its own cost.

D. 

A service provider or system owner or operator, through a separate pole or conduit agreement with a utility, or the Village, may locate the system on or within the easement or property of such utility in the Village, so long as the system and service is deemed a compatible use of the easement and such use is expressly permitted by the holder or owner of the easement.

§ 172-36 Application for franchise.

A. 

For service providers or system owners or operators, the Village Board may develop rules with respect to the submission and processing of initial and renewal applications or proposals for a franchise. Such rules and regulations shall primarily be aimed at determining the legal, financial, technical, and character qualifications of the applicant, though the Village may also consider other matters deemed of importance that are not prohibited from consideration by applicable law, including but not limited to the applicant's or proposer's history of performance and compliance, both in the Village and elsewhere.

B. 

With respect to an application for a franchise to use and occupy the Village's property, streets or rights-of-way to provide service or own or operate a system for commercial purposes an applicant shall pay an initial nonrefundable application fee as established by resolution of the Village Board, which fee shall be for the purpose of covering the Village's costs of processing and analyzing the application.

C. 

Any application or proposal shall be accompanied by a check in the amount required at the time of the filing of the application or proposal. In the event the application or proposal is not accompanied by the required payment or deposit, the application or proposal shall be deemed incomplete and no action shall be taken on the application or proposal until the required deposit is received.

§ 172-37 Franchise fees.

Any service provider or system owner or operator that is granted a franchise or renewal of a franchise after the date this chapter becomes effective shall pay to the Village an amount that is equal to the fully allocated cost of administering the franchise for the year, which cost shall be based on the budgeted amount, if any, in the budget adopted by the Village for that year.

§ 172-38 Rent or right-of-way use and occupancy fee.

A. 

The Village reserves and preserves the right to assess, impose and collect rent or a right-of-way use and occupancy fee from any service provider or system owner or operator occupying and using the Village's property and the Village's rights-of-way for commercial purposes.

B. 

If assessed, and to the extent permitted by law, the Village shall impose rent or a right-of-way use and occupancy fee on a nondiscriminatory and on a competitively neutral basis.

C. 

The amount of rent or the right-of-way use and occupancy fee shall not exceed the greater of:

(1) 

The fair market value of the Village's property and rights-of-way that are used and occupied for commercial purposes, as determined by the Village Board; or

(2) 

The fair market value of the Village's property and rights-of-way that are used and occupied by a service provider or system owner or operator for commercial purposes, as determined by the Village Board.

D. 

Basis for assessment.

(1) 

An assessment pursuant to this section shall be based upon either:

(a) 

The fair market value of like or similar property adjacent to the Village's property or rights-of-way that are used and occupied by the specialty service provider or system owner or operator serving that portion of the Village; or

(b) 

The average fair market value of commercially zoned property within the Village that is used and occupied for commercial purposes as determined by ascertaining the average or mean value for the preceding three years; or

(c) 

Up to 5% of the gross revenue of the service provider or system owner or operator as gross revenue is defined in § 172-5 of this chapter, whichever is greater.

(2) 

The Village Board shall make the determination which of the alternatives set forth in this subsection it chooses to use, but the Village may use only one of the alternatives and never a combination.

E. 

Notwithstanding anything to the contrary in this section, the Village may negotiate with a service provider or system owner or operator for the in-kind provision of services or other valuable consideration in lieu of all or a portion of the amount that would otherwise be required to be paid. However, the Village shall not be obligated to grant this option to any service provider or system owner or operator, so long as it applies this authority in a mariner among like or similar service providers that is nondiscriminatory and competitively neutral in effect with respect to the value received by the Village.

F. 

All payments of rent or a right-of-way use and occupancy fee shall be quarterly on a calendar-year basis, unless otherwise expressly set forth in the franchise.

§ 172-39 Default of franchise; revocation, termination or cancellation of franchise.

A. 

In the case of any procedure concerning or involving the default, termination, revocation, unilateral alteration, or suspension of a franchise granted or enforceable under this chapter, the Village Board shall follow the rules and procedures set forth in this section, unless expressly prohibited or preempted by state law or rule. Such action may be in addition to all other remedies available to the Village under applicable law.

B. 

When an act of evasion, avoidance or omission, or the failure to comply with a time-related or performance-related requirement of this chapter or the franchise, is committed by a service provider or system owner or operator which represents a material violation of a provision of this chapter or the franchise, or compromises the corporate character, or legal, financial or technical ability, integrity and/or stability of the service provider or system owner or operator to such a degree that the interests of the subscribers and users, or the Village, are substantively affected in a negative manner, then such violation, breach, act of evasion, act of avoidance or omission shall be considered a material violation of this chapter and breach of any franchise granted or enforceable hereunder. Under such circumstances, the Village shall notify the affected service provider or system owner or operator, in writing, of the specific violation or breach, and direct the service provider or system owner or operator to remedy the breach or violation in accordance with the provisions of this chapter. For illustrative purposes only, violations, breaches, acts of evasions or avoidance and omissions include, but are not limited to, failure to pay taxes or pay franchise fees or the functional equivalent, including a rent or right-of-way use and occupancy fee, or repeated failure to comply with the provisions of this chapter or a franchise after proper notice and showing a pattern of failure or refusal to abide by the terms and conditions of the franchise or the provisions of this chapter.

C. 

Where a service provider or system owner or operator corrects any violation or breach to the satisfaction of the Village Board or as required in this chapter or a franchise within 30 days after notification by the Village, and where the situation does not involve the repeat of a type of violation for which the service provider or system owner or operator has previously received notice within the past 24 months, then the procedure provided for under this section shall cease, and the enumerated condition shall not be considered in any subsequent compliance or performance review, so long as it has not been repeated.

D. 

Notwithstanding anything to the contrary in Subsection C of this section with respect to the thirty-day cure period, to protect the health and safety of the public, at the discretion of Village Board, violations of construction-related or safety-related requirements may be required to be corrected, eliminated or otherwise cured in less than 30 days.

E. 

A copy of the notice of violation or breach may also be mailed to the surety of the system owner or operator or service provider.

F. 

Within 60 days, but in no case sooner than 30 days, after the written notice is mailed, the Village Board or the Administrator may conduct a hearing on the matter.

G. 

The Village Board shall provide written notice of the date, time and place of the hearing to the affected service provider or system owner or operator at least 30 days prior to the hearing.

H. 

At the time of the hearing, the service provider or system owner or operator may present information on the current status of the alleged violation of this chapter or breach of the franchise; and present arguments as to why the situation is not a violation or breach, including evidence in support of such an argument, and why the service provider or system owner or operator should not be subjected to sanctions as permitted under this chapter and applicable state law. If the situation has been resolved, or meaningful and substantive steps are being taken to resolve the situation, then the service provider or system owner or operator shall present such information at the hearing. The notice of violation shall constitute prima facie evidence of a violation, which shall be accompanied by such proof at the hearing that the Village Board shall require to constitute a full and fair record.

I. 

If the service provider or system owner or operator fails to attend the hearing and has not requested and been granted a continuance of the hearing, then the service provider or system owner or operator shall be deemed to have waived its right to a further continuation of the matter, and may be declared in violation of this chapter or in breach and default of the franchise based on the evidence available at that time.

J. 

After the public hearing, the Village Board or Administrator may:

(1) 

Determine the service provider or system owner or operator to be in compliance and dismiss the matter, with or without prejudice; or

(2) 

Determine that the service provider or system owner or operator has adequately remedied and cured any violation or breach and thereby dismiss the matter; or

(3) 

Determine that a violation has been committed and remains unremedied and uncured.

K. 

Action upon violation.

(1) 

Upon a finding that the service provider or system owner or operator violated this chapter or committed a breach of a material provision of the franchise that resulted in a violation of this chapter, and failed to remedy and adequately cure the violation of this chapter or material breach of the franchise, the Village Board or the Administrator may:

(a) 

Direct the service provider or system owner or operator to take corrective action to eliminate, remedy or cure the violation or breach within a specified period of time; or

(b) 

For sufficient cause declare the service provider or system owner or operator in default of the franchise.

(2) 

Unless the service provider or system owner or operator complies with the directive or order of the Village Board or the Administrator, or presents sufficient mitigating circumstances that, at the discretion of the Village Board or the Administrator, warrant less severe or extreme measures, the Village Board thereafter may revoke, terminate, or cancel the franchise pursuant to this section.

L. 

If the Village Board or the Administrator directs corrective action to take place within a specified period of time, or declares the service provider or system owner or operator in default of the franchise, then the directive or declaration shall be committed to writing and the notice of corrective action or default shall be mailed within 21 days of the action of the Village Board or the Administrator to the service provider or system owner or operator.

M. 

If, within the time set forth in the order or directive, the service provider or system owner or operator has not complied with the order or directive, or submitted a plan detailing how the service provider or system owner or operator will comply with the order or directive as given, or has not paid any amount due, including proposing an alternative time frame for compliance as may be acceptable to the Village Board at the Board's sole discretion, then the Village Board may impose civil penalties as set forth in this chapter, or in the extreme may terminate and revoke the franchise and, unless there are further mitigating circumstances, shall notify the affected service provider or system owner or operator of such action.

N. 

In the event penalties are imposed, the compliance or performance security placed with the Village may be used to collect the penalties, and the Village may take such action as is required to call on or draw against the security for such purpose.

O. 

In the event of the termination and revocation of the franchise, within seven days after notification of such action, the Village Board or the Administrator shall notify the service provider or system owner or operator and its surety that any security is forfeited. The Village may then take such action as is required to collect on the security.

§ 172-40 Notice of violation or failure to comply; hearing.

A. 

For the failure to comply with a time-related or performance-related requirement of this chapter which the Village deems sufficient to warrant sanctions, the Village shall provide notice and an opportunity to eliminate, remedy or cure.

B. 

Notwithstanding anything to the contrary in Subsection A of this section, or any other subsection of this section, for situations involving violations of construction and safety-related codes and requirements where such are deemed to create an imminent threat or danger to lives or property within the Village, and for which the service provider or system owner or operator has previously been notified of the same or similar situations in the previous 36 months, the service provider or system owner or operator shall be notified, but may not be granted an opportunity to remedy or cure prior to the imposition of fines and/or penalties. Rather, penalties may be assessed and imposed after proper written notice on a per-occurrence per-day basis, until the violation(s) is eliminated.

C. 

Notice and the opportunity to cure, as required, shall be provided to the service provider or system owner or operator in writing, and shall be sent by certified U.S. mail, return receipt requested, or by overnight service, or may be personally delivered, to the service provider's or system owner's or operator's local place of business.

D. 

A service provider or system owner or operator may request a hearing on the matter addressed in the notice required in Subsection A of this section, or the Village may call a hearing on the matter. At the discretion of the Village Board, the hearing may be held before the Village Board, or the Administrator.

E. 

The Village Board, or the Administrator, or a designated hearing officer, shall, at the date, time and place designated for the hearing, hear and consider issues from the Village and the service provider or system owner or operator and make a determination regarding the alleged violation of this chapter or any franchise.

(1) 

The Village Board, or the Administrator, or a designated hearing officer, shall hear and consider the matter, including hearing any person interested in the matter wishing to be heard, and review and consider any relevant evidence. After affording the service provider or system owner or operator required rights of due process to be heard, to present relevant evidence and witnesses and to question any witnesses, the Village Board shall determine, based on a preponderance of the evidence, whether or not there was committed a breach or violation of a time or performance-related requirement of this chapter, or a breach of a term or condition of franchise, or a violation of any federal or state law, rule or regulation or local law, regulation or code not expressly prohibited from local enforcement. The Village shall have made a transcript of the hearing.

(2) 

The service provider or system owner or operator may, at its own expense, make a transcript of any such hearing, or it may share the costs of obtaining a transcript of such hearing equally with the Village.

(3) 

At the hearing the Village and the service provider or system owner or operator may present evidence relevant to the issues being heard, including the right to call and examine and cross examine witnesses.

(4) 

Within 30 days following the completion and close of the hearing, the Village Board, or the Administrator, or the hearing officer, shall issue a written decision as regards whether any failure to comply with any time-related or performance-related requirement or act of evasion or avoidance of this chapter, or breach of a term or condition of the franchise, or violation of any federal or state law, rule or regulation, or local law, regulation or code, occurred. Such determination shall be based upon a preponderance of the evidence presented as contained in the record of the proceeding, stating with particularity the reasons for the decision.

(5) 

Within 30 days after the issuance of a decision, Village Board shall then take formal action, either dismissing the claim of violation or breach, or finding that the service provider or system owner or operator did commit the alleged violation or breach and did not cure or eliminate such as required. The Village Board's formal action shall be in writing and a copy of such shall be provided to the service provider or system owner or operator.

(6) 

Should the Village Board, the Administrator or the hearing officer find that no breach, violation or failure to comply or perform occurred, or, except for situations addressed in Subsection B of this section, that the service provider or system owner or operator remedied the violation or failure prior to or by the end of the period allowed for cure, or that the service provider or system owner or operator instituted substantial and meaningful good faith actions to remedy the failure to comply or perform after having been provided written notice, and actively and expeditiously started and undertook substantial and meaningful efforts to complete the remedy as directed by the Village Board, all of which shall be determined at the sole discretion of the Village Board, the proceedings shall be terminated and no penalty shall be imposed.

(7) 

The Village Board shall be required to base its decision on a preponderance of the evidence from the record established during the hearing. If the Village Board determines that a failure to comply with any time or performance-related requirement of this chapter, or any act of evasion or avoidance of this chapter, or breach of a term or condition of the franchise, or of any federal or state law, rule or regulation or local law, regulation or code, was the fault of the service provider or system owner or operator, and was within its control, subsequent to the required notice and opportunity to cure and due process requirements of this chapter, the Village Board may determine whatever action it deems appropriate as may be permitted under this chapter and the franchise. The Village Board's decision shall be final and no other remedies, administrative or otherwise, nor any procedures for such, are provided under this chapter.

(8) 

Prior to the imposition of any penalty or sanction against a service provider or system owner or operator, but not including penalties as previously excluded in this subsection, the Village shall provide the service provider or system owner or operator notice and opportunity to cure in accordance with the following Subsection E(8)(a) and (b).

(a) 

The Village shall provide the service provider or system owner or operator with written notice specifying the nature of the failure, breach, violation or act of evasion or avoidance. The service provider or system owner or operator shall have a period of 48 hours following the receipt of such notice to cure or satisfy the alleged failure, breach or violation, with the exception of safety situations.

(b) 

In the event the Village Board or the Administrator concludes that the service provider or system owner or operator has failed to comply with its obligations under this chapter or the franchise, and that the service provider or system owner or operator has not remedied such failure, violation, act of avoidance or evasion or breach within the period set forth in the notice set forth in the preceding Subsection E(8)(a) after having received written notice, the Village Board may pursue whatever additional penalties or sanctions are provided for under state law, including civil or criminal prosecution.

F. 

The amount of time given the service provider or system owner or operator to cure any violation of this chapter, or any violation of any federal or state law, rule or regulation, or other local law, regulation or code, shall be at the discretion of the Village Board to the extent not otherwise governed by this chapter or state or federal law, but in no event shall a service provider or system owner or operator be given less than 48 hours, unless otherwise dictated by an emergency situation posing an imminent threat to the health and safety of individuals or the safety of public or private property. Notwithstanding the preceding, or anything else in this section or anywhere in this chapter, in the event a violation of the construction or safety-related requirements of this chapter endangers, or has the reasonable possibility of endangering, the health or safety of individuals or the safety of property, the forty-eight-hour elimination period may be lessened and the elimination of the violation may be required the same day, depending upon the seriousness of the matter as a factor of the degree of danger involved or the imminence of injury or damage to property. Notwithstanding the preceding portion of this subsection, any lessening of the forty-eight-hour period shall be solely for purposes of eliminating the danger or threat, and shall not enable the Village to impose penalties during such shorter period.

G. 

The Village may, in its reasonable discretion, grant extensions of time to a service provider or system owner or operator to eliminate, cure or remedy, where extraordinary circumstances not precipitated by the service provider or system owner or operator warrant an extension.

H. 

Notwithstanding any notice and opportunity to cure requirements of the applicable federal or state law, the issuance of two or more notices to cure or eliminate or remedy a violation for the same or similar provisions or requirement of this chapter, or two or more breaches of a term or condition of a franchise that constitute a violation of this chapter or an act of evasion or avoidance of the requirements of this chapter, or two or more violations of any federal or state law, rule or regulation, or other local law, regulation or code, within any twelve-consecutive-month period, may be deemed a pattern of behavior that demonstrates an intent to continue violating this chapter and thereby relieve the Village of any obligation to provide further notice and opportunity to cure for subsequent failures to meet the requirements of this chapter, or for breaches of terms or conditions of a franchise or violations of federal or state, law, rule or regulation or other local law, regulation or code. Evidence of subsequent failures as set forth in this subsection shall be admissible as evidence in a hearing before the Village Board or the Administrator, or a designated hearing officer, regarding the assessment of fines and/or penalties, provided that the Village has provided such evidence to the service provider or system owner or operator at least 10 days prior to the hearing and the service provider or system owner or operator has an opportunity to be heard at the hearing and to present evidence in contravention of the charge(s) or in defense of its actions.

I. 

A notice of intent to assess penalties may be issued concurrently with a notice to cure. If a notice of intent to assess penalties is issued concurrently with a notice to cure, then penalties, if assessed, will accrue commencing with the expiration of the time allowed for an opportunity to cure as set forth in the notice. The notice of intent to assess penalties shall state the reason for the assessment and imposition, and shall inform the service provider or system owner or operator that penalties will be assessed from the date of the notice, or the end of the time allowed for an opportunity to cure, whichever is later.

J. 

If the service provider or system owner or operator desires to appeal the Village's imposition of penalties, it must file a written notice of appeal with the Mayor or the Administrator, delivered by certified U.S. mail, return receipt requested, within 10 days of the receipt of the notice of intent to assess penalties. The Mayor or Administrator shall then place the issue before the Village Board.

K. 

The Village shall then have served upon the affected service provider or system owner or operator, by certified U.S. mail, return receipt requested, a written notice of the date, time and place of the meeting, at least 15 days prior to the date of the meeting of the Village Board at which the matter will be heard.

L. 

Public notice shall be given of the meeting and of the issue that is to be considered by the Village Board. If the franchisee or other service provider or system owner or operator fails to appeal the Village's assessment or imposition of fines and/or penalties within the time required by this section, the Village's decision to assess fines and/or penalties shall be final.

M. 

The Village Board shall, at the date, time and place designated for the hearing, hear and consider issues from the Village and the service provider or system owner or operator and make a determination regarding the alleged violation of this chapter or any franchise.

(1) 

The Village Board shall hear both parties and consider the matter, including any relevant evidence presented.

(2) 

After affording the service provider or system owner or operator and the Village the right to be heard and present evidence, the Village Board shall determine whether or not there was committed a violation of this chapter, or a breach of a material term or condition of the franchise, or a violation of any federal, state, or other local law, rule, regulation or code.

(3) 

The Village shall have made a transcript of the hearing. A service provider or system owner or operator may, at its own expense, make a transcript of the hearing, or may obtain a copy of the Village's transcript if it shares the costs equally with the Village.

(4) 

Within 30 days following the completion and close of the hearing, the Village Board shall issue a written decision as regards the commission of a violation of this chapter, or breach of a material term or condition of the franchise, or a violation of any federal, state, or local law, rule, regulation or code, and such determination shall be based upon the record of the proceeding, stating with particularity the reasons for such decision. A copy of the Village Board's written decision shall be provided to the service provider or system owner or operator.

(5) 

Should the Village Board find that no breach, violation or failure to comply or perform occurred, or, except for situations addressed in Subsection B of this section, that the service provider or system owner or operator remedied the failure prior to the end of the period allowed for cure, or that the service provider or system owner or operator instituted substantial good faith actions to remedy the failure to comply or perform after having been provided written notice, and actively and expeditiously started and undertook substantial efforts to complete such remedy, or that fines and/or penalties are not warranted or applicable in the instant situation, all of which shall be determined at the sole discretion of the Village Board, the proceedings shall be terminated and no penalty shall be imposed.

(6) 

The Village Board shall be required to base its decision on a preponderance of the evidence from the record established during the Village Board's hearing. If the Village Board determines that any violation of this chapter, or breach of a term or condition of the franchise, or of any federal, state, or local law, rule, regulation or code, was the fault of the service provider or system owner or operator, and was within its control, subsequent to the required notice and opportunity to cure and due process requirements of this chapter, the Village Board may affirm the assessment and imposition of penalties or sanctions as permitted under this chapter or state law. The Village Board's decision to affirm the Village's assessment of penalties or other sanctions shall be final and no other remedies, administrative or otherwise, nor any procedures for such, are provided under this chapter.

§ 172-41 Enforcement; penalties for offenses.

A. 

This local law may be enforced by the Village's attorney; the Village Board; and, if applicable, the Administrator; and any other person duly authorized by resolution of the Village Board. In addition to all other rights and powers vested in and possessed by the Village, if required by state law, the Village Board reserves the right to seek fines and other civil penalties in any court of competent jurisdiction.

B. 

Notwithstanding the preceding Subsection A of this section, and if permitted by state law, the Village reserves for itself the right to assess penalties for any violation of this chapter, or any attempt to evade or avoid compliance with the requirements of this chapter, or for the failure of a service provider or system owner or operator to comply with any applicable time-related or performance-related requirements, or for the violation of any federal, state, or local law, rule, or regulation that is not specifically preempted from local enforcement, and, in the event such violation, evasion, avoidance or failure has not been remedied pursuant to procedures set forth in this chapter, to impose and assess penalties as set forth in this section.

C. 

Any imposition of penalties shall be preceded by written notice of the violation, and shall set forth the amount of time allowed for the elimination of the violation, if any, before the imposition of penalties. Violations of the same or of a similar type and of a substantive number, but occurring at different locations or affecting different persons, subscribers or users, shall not require individual notification, but may be referenced by type of violation.

D. 

Absent good and just cause, including the provision of evidence of good faith efforts to comply with the requirements of this chapter, the failure by a service provider or system owner or operator to comply with any time-related or performance-related requirement of this chapter, or an act of evasion or avoidance of the requirements of this chapter, will subject the service provider or system owner or operator to the assessment and imposition of penalties as set forth in this section. Once imposed, penalties shall continue to accrue, including during any appeals process, until such time as the payment of the fine and/or penalty is received by the Village or is otherwise specifically waived by the Village Board.

E. 

Failure to pay penalties within the time provided shall be a material violation of this chapter and shall be cause to proceed against either a letter of credit, or bond or other surety as may have been required. Failure to pay any penalty under this section shall also constitute cause to revoke any franchise or other use, occupancy or operating authority granting permission to provide service in the Village.

F. 

The Village Board adopts the following schedule of penalties for the violations listed. Unless prohibited by state law, the Village Board reserves the right to penalize any service provider or system owner or operator found to be in violation of this chapter.

G. 

Each instance or occurrence may be deemed a separate violation, and each day or part thereof following written notification by the Village and the expiration of any period of time allowed for the elimination, remedy or cure of the violation that the violation continues or is not eliminated, remedied or cured as prescribed by the Village Board, may be deemed a separate violation, punishable separately. The imposition and payment of penalties as set forth in this section shall not serve to extinguish or eliminate any other rights of prosecution the Village may have under law, nor are they deemed to be recompense for any damages that may be suffered:

(1) 

For failure to complete any system construction, reconstruction or upgrade in any section of the Village, or in the Village as a whole, as committed to pursuant to a proposal or franchise: an amount not to exceed $200.

(2) 

For failure to obtain a street cutting permit prior to the cutting or disturbance of any street: an amount not to exceed $500.

(3) 

For failure to provide any data, documents, reports or information required by this chapter, or that is needed to monitor or determine compliance with and to administer this chapter: an amount not to exceed $100.

(4) 

For failure to test, analyze and report on the performance of the system following a written request to do so: an amount not to exceed $200.

(5) 

For refusal to cooperate with the Village on any matter involving an inspection of the system and its components and facilities: an amount not to exceed $500.

(6) 

For failure to comply with any requirements regarding completion, cleanup and proper installation as set forth in this chapter: an amount not to exceed $200.

(7) 

For failure to meet any construction or safety-related requirements of this chapter, including fire and electrical codes: an amount not to exceed $250 per violation.

(a) 

For reasons of impracticability and excessive, unreasonable and unnecessary cost to the Village, in the event that a substantial number of safety-related violations are found during an inspection of a system within the Village, such being defined as more than 10 in one continuous or contiguous mile of the system within the Village, the Village shall not be required to notify a service provider or system owner or operator of each and every individual safety or safety-related violation. Rather, in such an instance the Village may reasonably assume the findings to be prima facie evidence that the situation is Village-wide and order the entire system to be inspected by the service provider or system owner or operator for either construction or safety-related violations, and order that all such violations found shall be eliminated within 30 days of the date of notification by the Village.

(b) 

In the event of a situation described in Subsection G(7)(a) of this section, any penalty imposed shall be calculated using the following formula:

Number of Violations Found x Total Miles in the Village = Total Violations Miles of System Inspected
(c) 

As these issues are of paramount concern to the Village, and as noncompliance with these requirements is normally not mere negligence, if the Village is forced to notify a service provider or system owner or operator of construction or safety-related violations, the mere elimination of such violations within the required period of time contained in the notice shall not relieve an offending service provider or system owner or operator from the payment of fines imposed under this section. Fines for construction and safety-related violations shall accrue starting 48 hours after notification by the Village of the existence of the violations, and shall continue until the service provider or system owner or operator certifies to the Village in writing that all construction and safety-related violations associated with its system in the Village have been eliminated.

(d) 

In the event a subsequent reinspection reveals that specific previously identified violations still exist, the fines may be doubled and shall accrue from the date of the first notice required pursuant to Subsection G(7)(c) until the elimination of the violation is verified.

(e) 

Notwithstanding Subsection G(7)(c) of this section, a penalty shall be imposed on a service provider or system owner or operator for any construction or safety-related violation where it is proven that the violation was caused by the actions of a third party, provided that proof is provided of a demand by the service provider or system owner or operator to the party having caused the violation to eliminate the situation, including a diligent pursuit of the demand if necessary.

(f) 

In order to verify and assure continued compliance with all applicable construction and safety-related requirements, within a reasonable amount of time after the period of time set forth in the Village's notice for the elimination of all construction or safety-related violations as set forth in this section, but in no case sooner than 35 days after the date of the notice of violation, the Village shall have the system within the Village reinspected by a party experienced in such inspections and that has no affiliation of any kind with any member of the industry.

(g) 

As the cost of a reinspection under Subsection G(7)(f) of this section is an extraordinary expense to the Village caused by the impermissible actions of a service provider or system owner or operator, and is not deemed a normal cost of administering this chapter or a franchise, to prevent the taxpayers from having to bear the financial burden, the Village may require the service provider or system owner or operator to place on deposit with the Village an amount deemed to be reasonably sufficient to cover the cost of reinspecting 20% of the system within the Village on a random sample basis and generating a written report on the findings of the inspection. The amount of the deposit shall not be less than $10,000, and any amount not expended shall be promptly returned to the service provider or system owner or operator.

(8) 

For failure to pay the full and complete amount of any money owed the Village, including any interest that may be owed: an amount not to exceed $100.

(9) 

For failure or refusal to place or restore performance and completion securities as required: an amount not to exceed $200.

(10) 

For failure to comply with the requirements of this chapter with respect to continuity of service, or for threatening to discontinue service, for each day or part thereof that such noncompliance continues or such threat is not removed in writing to the Village following written notification by the Village of the violation: an amount not to exceed $1,000.

(11) 

For failure or refusal to comply with any of the provisions of § 172-40 of this chapter: $500.

(12) 

For failure to comply with any other section, subsection, or provision of this chapter, or a franchise: an amount not to exceed $50.

H. 

Notwithstanding anything in the preceding subsections of this section or any other section of this chapter, unless otherwise formally granted relief or a waiver by the Village Board or the Administrator, or unless a longer period of time is permitted after the initial 48 hours following notification by the Village to the service provider or system owner or operator that a violation exists, each day that a violation continues shall constitute and be deemed a separate violation and may be treated as a separate offense.

I. 

A service provider or system owner or operator shall not be subject to penalties, forfeitures, revocation or involuntary termination of a franchise for a technical violation of this chapter or a technical breach of a franchise. For purposes of this chapter, technical violations or breaches include the following:

(1) 

Instances or matters where a violation of this chapter or, where applicable, a franchise, was a good faith error that resulted in no negative impact on the residents, subscriber or users within the Village, or on the Village itself, or where such violation resulted in de minimus effect on any of the preceding persons or the Village; or

(2) 

Instances or circumstances that are reasonably beyond the control of a service provider or system owner or operator, including force majeure situations, and that prevent a service provider or system owner or operator from complying with this chapter or the franchise.

J. 

In the event of an appeal arising out of the enforcement of this section, or in the event of litigation arising out of a dispute regarding the enforceability of any action taken by the Village under this section, the service provider or system owner or operator shall not be excused from the prompt and timely payment of penalties as set forth in this section during the course of such proceeding. Payment of penalties in such an instance shall be placed in an escrow account by the Village, pending the resolution and decision of the adjudicating entity.

K. 

Notwithstanding anything in this section, or any other section of this chapter, a service provider or system owner or operator may not use the payment of penalties to evade or avoid compliance with this chapter or any section of this chapter. An attempt to do so shall subject the service provider or system owner or operator to a penalty not to exceed $10,000 for the first occurrence, and for a second such occurrence termination and loss of the franchise, and a fine of $100,000.