A.
Grant.
(1)
Pursuant to the authority of the City Charter and
general statutory laws subject to the terms and conditions set forth
herein, the city can grant revocable and nonexclusive franchises,
acting pursuant to the federal/state enabling law and the city's applicable
Charter provisions, ordinances, rules and regulations to construct
and operate a telecommunications system in, under, over, along, across
or upon the streets and public rights-of-way within the city for the
purpose of reception, transmission, collection, amplification, origination,
distribution or redistribution of electronic signals and for the development
of telecommunication services in accordance with the laws of the city,
the State of Rhode Island and the United States of America. In exercising
rights pursuant hereto, the grantee shall not endanger or interfere
with the lives of persons, interfere with any installations of the
city, any public utility serving the city or any other person permitted
to use the streets and public rights-of-way. The grant of one franchise
does not establish priority for use over the other present or future
permit or franchise holders or the city's own use of the streets and
public rights-of-way. The city shall at all times control the distribution
of space in, over, under or across all streets or public rights-of-way
occupied by the telecommunications system.
(2)
No grant of any franchise shall affect the right of
the city to grant to any other person a right to occupy or use the
streets, or portions thereof, for the construction and operation of
a telecommunications system within the city or the right of the city
to permit the use of the streets or public rights-of-way of the city
for any purpose whatever. By accepting a franchise, the franchisee
thereby acknowledges the city's right to make such grants and permit
such uses. No privilege or power of eminent domain is bestowed on
the grantee by the grant of a franchise.
(3)
Any telecommunications system located in the streets
and public rights-of-way on the effective date of this chapter shall
obtain a franchise from the city within 120 days, unless such time
frame is extended by the city.
B.
General city ordinances. Any franchise granted by
the city is hereby made subject to any general chapter provisions
now in effect and hereafter made effective. Nothing in the franchise
shall be deemed to waive the requirements of the various codes and
ordinances of the city regarding permits, taxes, fees to be paid or
manner of construction.
The franchise area shall be the entire city
or portions thereof for which a franchise is granted.
For the purpose of operating and maintaining
a telecommunications system in the city, the grantee may erect, install,
construct, repair, replace, reconstruct and retain in, on, over, under,
upon, across and along the public streets and rights-of-way within
the city such wires, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, pedestals, attachments and other
property and equipment as are necessary to the operation of the telecommunications
system; provided, however, that the grantee complies with all design,
construction, safety and performance provisions contained in this
chapter, the franchise and other applicable local chapters. The grantee
shall use its best efforts to also obtain pole attachment agreements
for use of any utility poles or other utility facilities required
in connection with the provision of services, provided that such agreements
are available upon reasonable terms and conditions.
No poles shall be erected by the grantee without
prior approval of the city with regard to location, heights, type
and any other pertinent aspects, which approval shall not be unreasonably
withheld. However, the location of any pole of the grantee shall not
be a vested right with respect to the city, and such poles shall be
removed, relocated or modified by the grantee at its own expense whenever
the city reasonably determines that the public convenience would be
enhanced thereby. The grantee shall utilize existing poles and conduits,
where practicable. The city shall have the right, during the life
of the franchise, to install communications facilities and maintain
free of charge upon the poles or other aboveground facilities owned
by the grantee. Where the installation of such facilities by the city
requires the adjustment of the franchisee's facilities on any pole
or other aboveground facility (whether owned by the franchisee, another
company, the city or another person), such adjustment shall be made
by the franchisee at a reasonable charge to the city.
The term of the franchise shall commence upon
execution of the franchise by the city and the grantee and shall continue
for a period specified in the franchise, unless sooner terminated
as provided herein. The grantee shall have no property right upon
the expiration of the franchise term, except as provided by applicable
laws.
No telecommunications system shall be allowed
to occupy or use the streets and public rights-of-way of the city
and be allowed to operate within the city without a franchise.
Any franchise granted pursuant to this chapter
shall be nonexclusive. The city specifically reserves the right to:
The grantee shall comply with all generally
applicable laws, chapters and regulations enacted by the city pursuant
to its police powers. Any conflict between the terms of this chapter
or the franchise and any present or future lawful exercise of the
city's police powers shall be resolved in favor of police powers.
Nothing in this chapter shall be in hindrance
to the right of the city or any governmental authority to perform
or carry on, directly or indirectly, any public works or public improvements
of any description. Should the telecommunications systems in any way
interfere with the construction, maintenance or repair of such public
works or public improvements, the grantee shall, at its own cost and
expense, protect or relocate its telecommunications system, or part
thereof, as reasonably directed by the city officials or any governmental
authority. In such instances, the city shall give the grantee reasonable
notice to the extent practicable. This provision shall not preclude
the grantee from being eligible for reimbursement from governmental
authorities other than the city.
If at any time, in case of fire or disaster
in the city or other emergency, it shall become necessary in the reasonable
judgment of the city to cut or move any of the wires, cables, amplifiers,
appliances or appurtenances of the telecommunications system, the
city shall have the right to do so at the sole cost and expenses of
the grantee. The grantee shall bear all costs of reinstallation, repair
and other costs resulting from or arising out of the emergency cutting
or removal of the telecommunications system. The city shall consider
all other measures prior to cutting the system.
Upon denial of renewal, revocation or expiration
of the franchise, the grantee, at the city's discretion, shall remove
all supporting structures, poles, transmission and distribution systems
and all other appurtenances from the streets and public rights-of-way
and shall restore any property, public or private, to its original
condition prior to the installation, erection or construction of the
telecommunications system. In the event of removal, restoration of
city property, including but not limited to the public rights-of-way,
shall be in accordance with the directions and specifications of all
affected departments and agencies of the city and all applicable law.
The grantee shall accomplish such restoration at its expense. Such
removal shall be made with the supervision of the city. If such removal
and restoration is not completed within 12 months after the notice
by the city delivered, in writing, to the grantee, all of the grantee's
property remaining in the affected public rights-of-way shall, at
the option of the city, be deemed abandoned and shall, at the option
of the city, become the property of the city. In the event that the
grantee fails or refuses to remove its system or satisfactorily restore
all areas to the condition in which they existed prior to the original
construction of the system, the city, at its option, may perform such
work and collect the cost thereof from the grantee. No surety on any
bond shall be discharged until the city has certified to the grantee,
in writing, that the system has been dismantled, removed and all other
property restored to the satisfaction of the city.
No course of dealing between the grantee and
the city nor any delay on the part of the city in exercising any rights
hereunder shall operate as a waiver of any such rights of the city
or acquiescence in the actions of the grantee in contravention of
rights.
A.
Transfer of franchise. Any franchise granted hereunder
cannot in any event be sold, transferred, leased, assigned or disposed
of, including but not limited to by force or voluntary sale, merger,
consolidation, receivership or other means without the prior consent
of the city and then only under such conditions as the city may reasonably
establish. Except that no consent shall be required for any sale,
transfer or assignment of ownership or control to an entity under
common control with the grantee, provided that prior to such transfer,
the grantee provides to the city verifiable information to establish
that such transferee under common control has the financial, legal
and technical ability to fully perform all obligations of the franchise.
B.
Transfer threshold. The grantee shall promptly notify
the city of any actual or proposed change in, or transfer of, or acquisition
by any other party of ownership or control of the grantee. The word
"control" as used herein is not limited to major stockholders but
includes actual working control in whatever manner exercised. A rebuttable
presumption that a transfer of control has occurred shall arise upon
the disposal by the grantee, directly or indirectly, by gift, assignment,
voluntary sale, merger, consolidation or otherwise, of 10% or more
at one time of the controlling interest in the system or 25% cumulatively
over the term of the franchise of such interests to a corporation,
partnership, limited partnership, trust or association, or person
or group of persons acting in concert. Except that no consent shall
be required for any sale, transfer or assignment of ownership or control
to an entity under common control with the grantee, provided that
prior to such transfer, the grantee provides to the city verifiable
information to establish that such transferee under common control
has the financial, legal and technical ability to fully perform all
obligations of the franchise.
C.
City approval. Every change, transfer or acquisition
of control of the grantee shall make the franchise subject to cancellation
unless and until the city shall have consented thereto. For the purpose
of determining whether it shall consent to such change, transfer or
acquisition of control, the city may inquire into legal, financial,
character, technical and other public interest qualifications of the
prospective transferee or controlling party, and the grantee shall
provide the city with all required information. Failure to provide
all information reasonably requested by the city as part of said inquiry
shall be grounds for denial of the proposed change, transfer or acquisition
of control.
D.
Assumption of control.
(1)
The city agrees that any financial institution having
a pledge of the franchise or its assets for the advancement of money
for the construction and/or operation of the franchise shall have
the right to notify the city that it will take control and operate
the telecommunications system. If the financial institution takes
possession of the telecommunications system the city shall take no
action to effect a termination of the franchise without first giving
to the lender written notice thereof and a period of six months thereafter,
unless otherwise provided hereinbelow:
(a)
To allow the financial institution or its agent(s)
to continue operating as the franchisee under the franchise; and
(b)
To request the city and for the city to determine
whether to consent to the assignment of the grantee's rights, title,
interest and obligations under the franchise to a qualified operator.
(2)
The city acknowledges that in order for the financial
institution to realize upon the collateral accorded to it by the loan
documents, the financial institution must be entitled to a reasonable
period of time after taking possession of the franchise under the
loan document to obtain the city's consent to an assignment of the
franchise to a qualified operator. The city agrees that such reasonable
period of time is six months after the financial institution takes
possession of the telecommunications system and, further, agrees that
the city shall use its best efforts to decide upon the assignment
of the franchise to the new operator proposed by the financial institution
within such period of time. The financial institution shall be entitled
to such possession and other rights granted under this subsection
until such time that the city determines whether to consent to such
assignment ("the extended time"). If the city finds that such transfer,
after considering the legal, financial, character, technical and other
public interest qualifications of the applicant, is satisfactory,
the city will consent to the transfer and assign the rights and obligations
of such franchise as in the public interest. During the six-month
period or extended time, the financial institution shall enjoy all
the rights, benefits and privileges of the grantee under the franchise,
and the city shall not disturb such possession by the financial institution,
provided that the financial institution complies in all respects with
the terms and provisions of the franchise and this chapter. The various
rights granted to the financial institution under this subsection
are contingent under the lender's continuous compliance with the terms
and provisions of this chapter and the franchise during the entire
aforementioned six-month period or extended time, if applicable. For
example, should an agent of the financial institution take possession
of the telecommunication system pursuant to rights granted to the
financial institution under this subsection and such agent fails to
comply with the level of service requirements set forth in this chapter
or the franchise, the rights granted to the financial institution
under this chapter and the franchise shall automatically terminate.
E.
No waiver of city property rights. The consent or
approval of the city or any other public entity to any transfer of
the grantee shall not constitute a waiver or release of the rights
of the city in and to the public property or public rights-of-way,
and any transfer shall, by its terms, be expressly subordinate to
the terms and conditions of this chapter and the franchise.
F.
Signatory requirement. Any approval by the city of
transfer of ownership or control shall be contingent upon the prospective
transferee becoming a signatory to the franchise agreement.
Upon completion of the term of any franchise
granted under this chapter, the city may in its sole discretion grant
or deny renewal of the franchise of the grantee.
A.
Franchise fees in general. The city finds that:
(1)
The public rights-of-way to be used by the grantee
in the operation of its system within the boundaries of the franchise
area are valuable public properties acquired and maintained by the
city at great expense to its taxpayers;
(2)
The grant to the grantee to said streets is a valuable
property right without which the grantee would be required to invest
substantial capital in right-of-way costs and acquisitions;
(3)
The administration of this chapter or the franchise
imposes upon the city additional regulatory responsibility and expense;
(4)
Unless expressly prohibited by law, and except as
provided elsewhere in this chapter, the grantee of any franchise hereunder
shall pay to the city a franchise fee in the amount specified in the
franchise. This annual franchise payment shall be in addition to any
other fee and commence as of the effective date of the franchise.
The city shall be furnished a certified statement of said payment
by a certified public accountant or the grantee's financial officer,
reflecting the total amounts of annual gross revenues from all sources
and computations for the period covered by the payment. Upon the request
of the city, the grantee shall provide a fully audited financial statement
for the grantee's telecommunications systems in Pawtucket. Such audited
statement shall be provided for the corporate level nearest to the
system level at which such an audit is conducted.
(5)
For telecommunications systems providing long distance
network service only, the annual compensation payable to the grantor
shall be in the amount of $3 per linear foot of public right-of-way
for the installed system.
(6)
The franchise fee, in addition to other tax or payments,
shall be in addition to any other tax or payment owed to the governments
or other taxing jurisdiction by the grantee, unless such tax or payment
is deemed a franchise fee under applicable law.
(7)
No acceptance of any payment by the city shall be
construed as a release or as an accord and satisfaction of any claim
the city may have for further or additional sums payable as a franchise
fee under this chapter or for the performance of any other obligation
of the grantee.
(8)
In the event that any franchise payment or recomputed
amount is not made on or before the dates specified herein, the grantee
shall pay as additional compensation an interest charge, computed
from such due date, at the annual rate equal to the commercial prime
interest rate of the city's primary depository bank during the period
that such unpaid amount is owed.
(9)
The franchise fee and any other cost or damages assessed
shall be payable quarterly to the city. The grantee shall file a complete
and accurate verified statement of all gross revenue within the city
during the period for which said quarterly payment is made, and said
payment shall be made to the city not later than 30 days after the
expiration of each calendar quarter. Quarterly computation dates are
the last day in the months of March, June, September and December.
(10)
Except for telecommunications systems providing
solely long distance service, the city shall have the right to inspect
the grantee's income records and, to the extent that they are affected
by the franchise fees herein, any parent company's income records
to determine the franchise fee and the right to audit and to recompute
any amounts determined to be payable under this chapter. Audits shall
be at the expense of the grantee if any such audit finds that the
grantee has underpaid the franchise fee by 5% or more. Any additional
amount due to the city as a result of the audit shall be paid within
30 days following written notice to the grantee by the city, which
notice shall include a copy of the audit report. Access to the aforementioned
records shall not be denied by the grantee on the basis that said
records contain proprietary information, but the city shall treat
all such proprietary information to which it is given access as confidential
and not copy or disclose it. Notwithstanding the above, the grantor
shall be governed by the requirement of Rhode Island General Laws
relating to public records.
A.
Grounds for revocation. Subject to Subsection A(2) below, the city reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, any one of which standing alone shall represent a default and breach under this chapter and the franchise grant.
(1)
If the grantee shall default in the performance of
any of the material obligations under this chapter, the franchise,
or under such documents, contracts and other terms and provisions
entered into by and between the city and the grantee.
(2)
If the grantee shall fail to provide or maintain in
full force and effect the liability and indemnification coverage or
the performance bond as required in the franchise.
(3)
If the grantee attempts to evade any of the material
provisions of this chapter or the franchise or practices any fraud
or deceit upon the city.
(4)
The grantee becomes insolvent, unable or unwilling
to pay its debts or is adjudged bankrupt.
(5)
If the grantee ceases to provide services over the
telecommunications system for any reason within the control of the
grantee.
(6)
Procedure prior to revocation:
(a)
The city shall make written demand that the
grantee comply with any such requirement, limitation, term, condition,
rule or regulation or correct any action deemed cause for revocation.
If the failure, refusal or neglect of the grantee continues for a
period of 30 days following such written demand, the city may place
its request for termination of the franchise upon a regular Council
meeting agenda. The city shall cause to be served, by certified mail,
return receipt requested, upon such grantee, at the address contained
in the franchise, at least seven days prior to the date of such Council
meeting, a written notice of this intent to request such termination
and the time and place of the meeting, notice of which shall also
be published by the City Clerk at least once, seven days before such
meeting, in a newspaper of general circulation within the city.
(b)
The Council shall hear any persons interested
therein and shall determine in its discretion whether or not any failure,
refusal or neglect by the grantee was with just cause.
(c)
If the City Council shall determine such failure,
refusal or neglect by the grantee was with just cause, as determined
by the Council, the Council shall then direct the grantee to comply
within such time and manner and upon such terms and conditions as
are reasonable.
(d)
If the Council shall determine such failure,
refusal or neglect by the grantee was without just cause, then the
Council may, by resolution, declare that the franchise of the grantee
shall be terminated and the bond or letter of credit shall be forfeited
unless there is compliance by the grantee within 90 days.
A.
Equal employment opportunity and affirmative action
programs. The grantee shall be an equal opportunity affirmative action
employer adhering to all federal, state or municipal laws and regulations.
B.
Procurement. For all services, materials or equipment
purchased for the construction, operations or maintenance of the telecommunications
system, the grantee shall use all reasonable efforts to purchase from
competitively priced and otherwise qualified minority-owned or female-owned
businesses.
