[HISTORY: Adopted by the Town Board of the Town of Fishkill 9-5-2001 by L.L. No.
6-2001. Amendments noted where applicable.]
A.
The Town of Fishkill (the Town) has the authority to grant franchises
and/or licenses for the use and occupancy of public rights-of-way.
The Town has determined that these rights-of-way are valuable public
resources that have required, and will continue to require, prudent
management by the Town.
B.
The Town finds that the enactment of a Telecommunications and Public
Rights-of Way Management Law will have a beneficial impact on all
citizens of the Town. Competition among telecommunications providers
is increasing due to advancements in technology, changes in federal
and state law and increased demand for such services from Town residents,
businesses, educational institutions, governmental offices and other
public and private institutions. Many telecommunications providers
must utilize public rights-of-way in order to operate and would otherwise
be required to invest substantial capital and incur substantial expense.
The Town further finds that the public convenience, safety and general
welfare can best be served by establishing regulatory powers and procedures
to protect public rights-of-way, ensure the orderly development of
a telecommunications infrastructure which effectively serves the current
and future needs of the Town, while at the same time not erecting
barriers which prohibit or effectively prohibit entry by, or competition
among, telecommunications providers operating within the Town.
C.
The Town desires to structure and implement a fair and orderly process
for the granting and renewal of franchises and/or licenses to occupy
and use public rights-of-way and to provide telecommunications services
in the Town, including the negotiation of terms and conditions to
protect the public interest consistent with applicable law. Consistent
with applicable law, the Town desires to recover the Town's costs
of maintaining and managing the public rights-of-way, to obtain fair
and reasonable compensation from telecommunications providers for
the use of Town rights-of-way, and to manage its public rights-of-way
on a competitively neutral and nondiscriminatory basis.
D.
The Town desires to minimize inconvenience and disruption to the
public, to provide for the orderly and efficient use of its public
rights-of-way now and in the future, and to preserve adequate capacity
for existing and future uses of its public rights-of-way. The Town
intends to exercise, to the fullest extent permitted by applicable
law, its authority with respect to the regulation of the occupation
and use of its public rights-of-way by telecommunications providers.
E.
The Town Board has determined that the procedures set forth in this
chapter for granting franchises and/or licenses for the installation,
construction, operation and maintenance of telecommunications systems
in the Town promote the public interest and enhance the public health,
safety and welfare by assuring that:
(1)
Telecommunications systems are responsive to the needs and interests
of the Town and its residents;
(2)
Telecommunications systems provide, and are encouraged to provide,
the widest diversity of information and service to the citizens, government
and public and private institutions, organizations and enterprises
located in the Town; and
(3)
There is an orderly process for granting or renewal of franchises
or licenses.
A.
AFFILIATED PERSON
APPLICANT
APPLICATION
CABLE SERVICES
CHAPTER
CUSTOMER
EQUIPMENT
FACILITY or FACILITIES
FRANCHISEE
FRANCHISE or FRANCHISE AGREEMENT
GROSS REVENUE
(1)
(2)
(3)
(4)
(5)
(6)
LICENSE
LICENSEE
OPEN VIDEO SYSTEM (OVS)
PERSON
PUBLIC RIGHTS-OF-WAY
TELECOMMUNICATIONS
TELECOMMUNICATIONS PROVIDER
TELECOMMUNICATIONS SERVICES
TELECOMMUNICATIONS SYSTEM
TOWN
TOWN BOARD
TRENCHLESS TECHNOLOGY
UNDERGROUND FACILITIES
VEGETATION
Definitions. As used herein, the following words shall have the meanings
set forth below:
Each person who falls into one or more of the following categories:
any person having, directly or indirectly, a controlling interest
in the applicant; any person in which the applicant has, directly
or indirectly, a controlling interest; each officer, director, joint
venture or joint venture partner of the applicant; and any person,
controlling, controlled by, or under common control with, directly
or indirectly, the applicant; provided that such affiliated person
shall in no event mean the Town, or any creditor of the applicant
solely by virtue of its status as a creditor and not otherwise an
affiliated person.
Any person that applies for a franchise and/or license pursuant
to this chapter.
A request for a franchise and/or license to use the Town
rights-of-way. An application includes all written documentation,
verbal statements and representations, in whatever form or forum,
made by an applicant to the Town.
"Cable services" as defined in the Communications Act of
1984, as amended by the Cable Communications Policy Act of 1984, the
Cable Television Consumer Protection and Competition Act of 1992,
and the Telecommunications Act of 1996 (and as may be further amended
from time to time) (the "Cable Act").
This chapter and all modifications and amendments hereto.
Any person receiving service provided by a franchisee pursuant
to the authority of a franchise.
The poles, wires, cables, electrical conductors, conduits,
fiber optic cables, subways, manholes, handholes, junction boxes,
terminal blocks, fixtures, appliances, headend, backbone, hubs, concentrators,
nodes and any other control and/or communications equipment and appurtenances
that are used to provide telecommunications services.
Any tangible component of a telecommunications system, including
equipment.
A holder of a franchise granted pursuant to this chapter.
For the purposes of this chapter, the term "franchisee" shall include
any licensee holding a license granted pursuant to this chapter.
The initial authorization, or renewal thereof, issued by
the Town in accordance with the provisions of this chapter, for the
nonexclusive right and authority to install, construct, maintain and
operate any part of a telecommunications system and to provide telecommunications
services to customers within the Town through use of Town rights-of-way.
The franchise agreement shall describe in detail all requirements
applicable to the franchise.
Any and all payments or compensation, in any form whatsoever,
received directly or indirectly by the franchisee or any affiliated
person from or in connection with the operation of a telecommunications
system pursuant to franchise or license, or from the provision of
any service over such telecommunications system by the franchisee
or any affiliated person within the territorial limits of the Town.
The revenues described in this definition shall include, but are not
limited to:
All revenue received from any telecommunications service provided
within the Town, such as but not limited to: all telecommunications
service revenues charged on a flat rate basis, all telecommunications
service revenues charged on a usage sensitive or mileage basis, all
revenues from installation service charges, connection or disconnection
fees, all revenues from equipment sold or rented to a customer upon
customer premises, all revenues from local service, all revenues from
charges for access to local and long distance networks and all other
revenues collected by franchisee from business pursued within the
Town; and
Any access or other payments received by the franchisee or any
affiliated person from interexchange carriers, connecting carriers,
and others in connection with any service originating in the Town
regardless of the destination of such service; and
Revenues received from the lease, exchange, rental or use of
any facilities, capacity, plant, conduit space or equipment of the
telecommunications system; and
The value of any free services provided by the franchisee (provided,
however, that the value of the free service provided hereunder to
the Town or to any other governmental entity shall not constitute
gross revenue); and
The fair market value of any nonmonetary transactions between
the franchisee and any person other than an affiliated person at not
less than the customary prices paid in connection with equivalent
transactions between the franchisee and any affiliated person and
not less than the customary prices paid in connection with equivalent
transactions conducted with persons who are not affiliated persons;
and
Recoveries of bad debts previously written off and revenues
from the sale or assignment of bad debts. Unrecovered bad debts charged
off after diligent, unsuccessful efforts to collect are excludable
from gross revenues. All revenues from penalties or charges to customers
from checks returned from banks, net of bank costs paid, shall also
be gross revenue.
An initial authorization or renewal thereof, issued by the Town in accordance with the provisions of this chapter, which authorizes the limited occupation and use of specifically identified rights-of-way, provided that a license shall be issued only in the limited circumstances set forth in § 139-4C of this chapter.
A holder of a license granted pursuant to this chapter. For
the purposes of this chapter, the term "franchisee" shall include
any licensee holding a license granted pursuant to this chapter.
A telecommunications facility consisting of a set of transmission
paths and associated signal generation, reception, and control equipment
that is designed to provide cable service, which includes video programming,
which is provided to multiple subscribers within a community, and
which the Federal Communications Commission or its successor has certified
as compliant with Part 76 of the Rules of the Federal Communications
Commission, 47 CFR Part 76, as amended from time to time.
Any individual or any association, firm, partnership, joint
venture, corporation or other legally recognized entity, whether for
profit or not-for-profit, but not the Town.
The surface of, and the space above and below, any public
street, highway, freeway, bridge, land path, lane, concourse, tunnel,
waterway, public grounds or waters, alley, court, boulevard, sidewalk,
parkway, way, lane, public way, drive, circle, or other public right-of-way,
including, but not limited to, public utility easements, dedicated
utility strips or right-of-way dedicated for compatible uses, any
other public property or place belonging to the Town or any Special
Districts of the Town as the same now exists or may hereafter be extended
or altered, and any temporary or permanent fixtures or improvements
located thereon now or hereafter held by the Town which shall entitle
the Town and franchisee to the use thereof for the purpose of installing,
operating, repairing, and maintaining the system. "Public rights-of-way"
shall also mean any easement now or hereafter held by the Town for
the purpose of public travel, or for utility or public service use
dedicated for compatible uses, and shall include other easements or
public rights-of-way as shall within their proper use and meaning
entitle the Town and franchisee to the use thereof for the purposes
of installing or transmitting the franchisee's telecommunications
services over poles, wires, cables conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, attachments, and other property
as may be ordinarily necessary and pertinent to the system.
All transmissions of voice or electronic data, between or
among points specified by the user, of information of the user's
choosing without change in the form or content of the information
as sent and received.
Any applicant who owns, leases, installs, constructs, operates
or maintains equipment in the Town rights-of-way used to provide telecommunications
services, regardless of whether such telecommunications system originates,
terminates, or merely passes through the Town.
The offering of telecommunications for hire to the public,
or to such classes of users as to be effectively available to the
public, by means of the telecommunications system of the franchisee
or any affiliated person in accordance with applicable federal, state,
and local law. Telecommunications services shall not include Title
VI cable service, as defined in 47 U.S.C. § 522(6), and
service as an open video system provider pursuant to 47 U.S.C. § 573.
A telecommunications provider's system of cables, wires,
lines, towers, amplifiers, antennas, wave guides, optical fibers,
microwaves, laser beams, any associated converters, and all other
electronic devices, equipment, real property (including interests
in real property), tangible and intangible personal property, customer
lists or buildings, offices, plants and facilities designed and constructed
for the purpose of producing, receiving, amplifying or distributing
telecommunications to provide telecommunications services. This definition
shall be limited to systems providing audio, video, data, voice and
signaling communications services.
The Town of Fishkill, Dutchess County, New York, as now incorporated
and including any special districts or improvement areas of the Town
of Fishkill therein and all future annexations. "Town" shall include
the Town Board and all associated Departments.
The governing body of the Town.
The use of directional boring, horizontal drilling and micro-tunneling
and other techniques in the construction of underground facilities
which result in the least possible disruption and damage to public
rights-of-way.
All lines, cables, conduits, posts, tanks and other facilities
owned or operated by persons other than the Town which are located
wholly or partially underneath public rights-of-way.
Any tree, bush, shrub, vine or other foliage.
B.
In this chapter, the above-defined terms, phrases, words and their
derivations shall have the meanings set forth in this section, unless
the context clearly indicates that another meaning is intended. When
not inconsistent with the context, words used in present tense include
the future, words used in the plural number include the singular number
and words used in the singular number include the plural number. The
word "shall" is mandatory and "may" is permissive.
A.
The Town Board is empowered and authorized to issue nonexclusive
franchises and/or licenses to install, construct, operate and maintain
telecommunications systems in the public rights-of-way, as well as
to regulate these activities to the extent permitted by law.
B.
No person shall use or occupy the public rights-of-way as a telecommunications
provider, nor shall they install, construct, operate or maintain equipment
in the rights-of-way to provide telecommunications services to customers
or in connection with the internal operations of such person's
business, residence or employment without a franchise and/or license
granted by the Town.
C.
A franchise and/or a license granted in accordance with the provisions
of this chapter shall not be construed to grant any rights or authorization
to provide cable services in the Town, and any person seeking to provide
cable services in the Town shall first obtain a separate franchise
or license in accordance with applicable law. A franchisee shall not
allow any other person to use its telecommunications system to provide
cable services unless such person has been granted a franchise to
provide cable services by the Town.
D.
A telecommunications provider may not provide open video services
or operate an open video system within the Town unless such provider
has first obtained a separate open video franchise from the Town.
E.
The Town Board reserves the right to modify any provision of this
chapter by amendment hereof.
F.
The granting of any franchise and/or license shall be made by adoption
of a separate resolution by the Town Board and shall be on such terms
and conditions as may be specified in the separate resolution and/or
in the franchise and/or license agreement between the Town and the
franchisee.
G.
Any franchise and/or license granted shall be nonexclusive. The Town
specifically reserves the right to grant, at any time, such additional
franchises, licenses, or other authorizations for use of the public
rights-of-way as the Town deems appropriate.
H.
A franchise and/or license may be granted for all or any defined
portion of the Town.
I.
No license or franchise shall stop or otherwise limit the Town in
the full exercise of its governmental powers to protect the health
and safety of the public, and all other governmental powers may be
fully exercised except as expressly provided herein.
A.
It shall be the responsibility of each franchisee to comply with
all applicable laws, ordinances, resolutions, rules, regulations and
other directives of the Town and any federal, state or local governmental
authority having jurisdiction.
B.
In addition, all use of the public rights-of-way shall conform to
all federal, state or local highway and drainage laws. Any repair
to, or replacement of, any part of the Town infrastructure must be
done in accordance with the applicable Town standards or specifications.
To minimize the impact on the Town infrastructure, trenchless technology
shall be the preferred method of installation.
C.
A license is required for those applicants who wish to utilize certain
public rights-of-way to install, construct, operate, or maintain their
telecommunications system within the Town solely for the purpose of
transitting the Town and without generating income from sources within
the Town; or when the use or occupation of such public rights-of-way
is for or in connection with the internal operations of the applicant's
business, residence or employment and not for, or in connection with,
the provision or offering of telecommunications services for sale
or resale to any person.
D.
Those applicants who wish to use the public rights-of-way and will
be providing telecommunications services within the Town shall be
required to obtain a franchise with the Town for such use.
A.
No permits or other authorizations for the activities identified in § 139-3B shall be issued prior to the granting of a franchise or license pursuant to this chapter.
B.
No person shall install, construct, repair and or maintain any equipment
in the public rights-of-way used to provide telecommunications services
without first obtaining such permits or other authorizations as may
be required by the Town Code for such activity. The franchisee shall
pay all applicable fees for Town construction permits.
A.
An application is required to obtain a franchise and/or license to
install, construct, operate or maintain any telecommunications system
within the Town, to expand a franchisee's or licensee's
current permitted territory or to obtain renewal of a telecommunications
franchise and/or license granted pursuant to this chapter.
B.
An applicant must complete the required application which may be
obtained from the Town Clerk.
C.
Five copies of the completed application for a franchise and/or license
shall be submitted to the Town Board. Additional copies of the application
shall also be provided to the Town Highway Superintendent and the
Town Engineer for review.
D.
An application shall contain, at a minimum, the following information
with respect to the proposed franchise and/or license and such other
information as the Town may deem necessary or appropriate, consistent
with applicable law:
(1)
The name, address and telephone number of the applicant and of the
person the Town may contact concerning the application;
(2)
A description of facilities and equipment and the manner in which
telecommunications services are to be delivered to Town customers;
(3)
A description of the proposed franchise and/or license area or the
specifically identified public rights-of-way and/or portions thereof
proposed to be used, and the capacity of the rights-of-way to accommodate
the proposed telecommunications system as well as present and future
users;
(4)
A proposed construction schedule and sequence;
(5)
Maps, plans and profiles showing the proposed location of the telecommunications
system and all existing utilities within the rights-of-way, and such
maps shall be paper prints 24 inches by 36 inches in size and to a
scale no smaller than 50 feet per inch;
(6)
Identification of the ownership of the applicant and identification
of all affiliated persons;
(7)
An engineer's estimate outlining the estimated costs of the
proposed project.
E.
At the time of filing the application, a nonrefundable application
fee shall be paid to the Town Clerk. The amount of all fees shall
be in accordance with a fee schedule established by the Town Board
and in effect at the time of application.
A.
In making a determination regarding any application for a franchise
or license, the Town Board may consider the following factors:
(1)
The legal qualifications of the applicant;
(2)
The ability of the applicant to maintain the property of the Town
in good condition throughout the term of the franchise or license;
(3)
Any services or uses of the public rights-of-way that may be limited
or precluded by the grant of the franchise or license; and the adverse
impact of the proposed franchise or license on the efficient use of
the public rights-of-way or utilities at present and in the future;
(4)
The willingness and ability of the applicant to meet construction,
physical requirements and Town highway and drainage standards and
to abide by all lawful conditions, limitations, requirements and policies
with respect to the franchise or license;
(5)
The terms and conditions of the proposed franchise agreement or license.
B.
Consistent with applicable law, the Town may take into consideration
whether the Town rights-of-way have sufficient capacity to accommodate
existing and future uses in a rational and efficient manner.
C.
The Town may reject any application which is incomplete or otherwise
fails to comply with applicable law, ordinances, resolutions, rules,
regulations and other directives of the Town and any federal, state
or local authority having jurisdiction.
A.
The Town may make such investigations and take or authorize the taking
of such other steps as the Town deems necessary or appropriate in
considering and acting, on applications for franchises or licenses
and to determine whether a franchise or license should be granted
to an applicant, and may require the applicant to furnish additional
information and data for this purpose. In considering an application,
the Town Board may seek advice from Town officials, other departments,
agencies, boards, commissions or bodies, from such other advisory
bodies as the Town Board may establish or determine appropriate, and
may request the preparation of one or more reports to be submitted
to the Town Board, which may include recommendations with respect
to the applications.
B.
Where the Town Board uses the services of private consultants for
the purpose of engineering, environmental or legal reviews concerning
the application, or plans for construction of a telecommunications
system, and other matters related thereto, the applicant shall be
responsible for payment of the costs of such services. In no event
shall the applicant's responsibility be greater than the actual
cost of the Town for such consulting services. Periodic monetary deposits
may be required from the applicant, on account with the Town, from
which the Town may make payments to such consultants for services
rendered, after approval of consultants' vouchers by the Town
Board.
If an application is complete and otherwise complies with applicable
law, ordinances, resolutions, rules, regulations and other directives
of the Town, including the provisions of this chapter, the Town may
enter into negotiations with the applicant to determine whether they
are able to reach agreement on the terms of the proposed franchise
or license. The reaching of a proposed agreement shall be a condition
precedent to final action by the Town Board on the application.
A.
Prior to final approval, the applicant shall provide a faithful performance
bond, secured by a letter of credit, cash deposit or equivalent acceptable
to the Town, for the Town to cover the cost associated with the restoration
of the public rights-of-way and affected Town utilities.
B.
Prior to the issuance of a franchise or license, the Town Board shall
hold a public hearing, on at least seven days' notice to the
public, at which the applicant and its application shall be examined
and the public and all interested parties afforded a reasonable opportunity
to be heard.
C.
Consistent with applicable law, upon completion of the steps deemed
appropriate by the Town Board, the Town Board may grant or deny the
franchise or license, and may specify the conditions under which the
franchise or license is granted. The grant of a license or franchise
shall be conditioned on the signing of a franchise agreement.
A.
Construction/relocation requirements.
(1)
Preconstruction requirements.
(a)
After a complete application has been submitted to the Town
by the applicant and the franchise or license has been granted, the
application, with an attached complete set of preliminary plans and
specifications, shall be delivered by the franchisee to the Town Highway
Department and the Town Engineer for review prior to the issuance
of any permits for construction under this franchise or license. This
provision shall also apply to each subsequent construction sequence
if the construction is to be completed in phases. Maps shall be paper
prints, 24 inches by 36 inches in size, and to a scale no smaller
than 50 feet per inch. The franchisee shall also provide an engineer's
estimate of cost of their proposed project to the Town Highway Department.
This Department shall then forward comments to the franchisee. The
franchisee shall then address the Town's comments, or if the
franchisee disagrees with such comments, the franchisee can request
a meeting with the Highway Superintendent and the Town Engineer to
explain why the changes requested in the comments are not necessary.
The final determination as to changes lies with the Town Highway Superintendent.
(b)
After the changes requested by the Town are made to the Town
Highway Superintendent's satisfaction, the franchisee shall resubmit
the modified plans and specifications to the Town Highway Superintendent
and Town Engineer for review. Once all the Town's comments are
addressed, the Town Highway Superintendent may approve the plans and
specifications. After approval, the franchisee or licensee shall provide
the Town Highway Superintendent with:
[1]
A construction time estimate sheet;
[2]
Four copies of the final plans and specifications;
[3]
A copy of any agreements with private parties for use of their
lands for franchisee's facilities;
[4]
A copy of any applicable pole or conduit agreement; and
[5]
A copy of the franchisee's franchise agreement or licensee's
license.
(c)
Once all items are received, the Town Highway Superintendent
will then schedule a preconstruction meeting with the franchisee at
which time, if all is acceptable, a highway permit may be issued.
(2)
Permits required. The franchisee shall apply for and obtain all permits
necessary for installation, construction, repair, and maintenance
of any such facilities, and for excavation and placing of any and
all telecommunications system facilities within the public rights-of-way.
The franchisee shall pay all applicable fees for Town construction
permits. The initial highway permit required by the Town Code will
allow for the installation and construction of the franchisee's
telecommunications system.
(3)
Provision of maps.
(a)
Within 30 days after the franchisee's construction in the
public rights-of-way is completed, the franchisee shall provide the
Town with a map showing the location of its installed telecommunications
system in the public rights-of-way, as-built. Such as-built maps shall
be paper prints, 22 inches by 34 inches in size, and to a scale no
smaller than 50 feet per inch. If requested by the Town, the franchisee
shall also provide such maps in an electronic format compatible with
any digital mapping standard the Town may adopt.
(b)
One year after the effective date of said franchise agreement
or license, and annually thereafter and in the event of any alterations,
the franchisee shall provide a map to the Town, which shall conform
to Town standards as listed above or as later adopted, showing the
location of the franchisee's telecommunications system in the
public rights-of-way.
(4)
Placement of underground facilities.
(a)
The Town prefers subterranean installation of facilities within
the public rights-of-way or use of existing aboveground facilities.
The franchisee shall make all efforts to comply with the Town's
policies and regulations in this regard.
(b)
Prior to doing underground work, the franchisee must apply for
and obtain appropriate permits from the Town. The franchisee may not
make excavations in the public rights-of-way for any facilities needed
for the installation, construction, repair and maintenance of the
franchisee's telecommunications system except to the extent allowed
by permit or permits issued by the Town.
(c)
Prior to excavation, all existing underground facilities shall
be located using the Underground Facilities Protective Organization
(UFPO) or successors thereto. The franchisee or licensee shall be
responsible for all necessary notifications.
(d)
In addition, all use of the public rights-of-way shall conform
to all federal, state, or local Laws. Any repair to, or replacement
of, any Town infrastructure must also be done in accordance with the
Town Code and must be inspected by the Highway Superintendent for
conformance. In the case of subterranean installation, and to minimize
the impact on the Town infrastructure, trenchless technology shall
be the preferred method of installation.
(e)
All excavations or other construction in the public rights-of-way
shall be carried on so as to interfere as little as practicable with
the use of public and private property and in accordance with any
direction given by the Town under the police and regulatory powers
of the Town.
(f)
After such construction is completed, additional highway permits
must be obtained for any necessary repairs or maintenance of the franchisee's
telecommunications system requiring access to the underground facilities.
(5)
Emergency repairs. In the event that emergency repairs are necessary,
the franchisee shall immediately notify the Town Highway Superintendent
of the need for such repairs. The franchisee may immediately initiate
such emergency repairs and shall apply for appropriate permits no
later than the next business day following the discovery of the emergency.
The franchisee must comply with all laws and provisions relating to
such emergency excavations or construction, including the payment
of permit fees. Failure by the franchisee to apply for such necessary
permits timely will be considered a breach of this agreement and could
lead to the revocation of the franchise agreement or license.
(6)
Public emergency. The Town shall have the right to sever, disrupt,
dig-up or otherwise destroy facilities of the franchisee, without
any prior notice, if such action is deemed necessary by the Town Supervisor
or Police Chief because of a public emergency. However, the Town shall
provide notice to the franchisee as soon as reasonably possible. Public
emergency shall be any condition which, in the opinion of either of
the officials so named, poses an immediate threat to the lives or
property of the citizens of the Town caused by any natural or man-made
disaster, including but not limited to, storms, floods, fire, accidents,
explosions, major water main breaks, hazardous material spills. The
franchisee shall be responsible for repair, at its sole expense, of
any of its facilities damaged pursuant to any such action taken by
the Town.
(7)
Relocation. The Town shall have the right to require the franchisee
to protect, support, temporarily disconnect, relocate or remove its
telecommunications system within the public rights-of-way when the
public convenience requires such change, and the expense thereof shall
be paid solely by the franchisee. The Town shall provide the franchisee
with written notification requesting such relocation. Should the franchisee
fail to remove or relocate any such facilities by the date established
by the Town, the Town may cause such removal or relocation, and the
expense thereof shall be paid by the franchisee, including all costs
and expenses incurred by the Town due to the franchisee's delay.
If the Town requires the franchisee to relocate facilities located
in the public rights-of-way, the Town will make a reasonable effort
to provide the franchisee with an alternate location for its facilities
within public rights-of-way.
(8)
Restoration of rights-of-way. Whenever the franchisee disturbs or
excavates the surface of any public right-of-way or opens the hard
surface pavement in any street for any purpose, the franchisee shall
promptly restore the public right-of-way to at least its prior condition
and in compliance with the Town Code and to the satisfaction of the
Town Highway Superintendent. The Town may, after providing notice
to the franchisee, refill and/or repave any opening made by the franchisee
in the public rights-of-way and the expense thereof shall be paid
by the franchisee. The Town reserves the right, after providing notice
to the franchisee, to remove and/or repair any work done by the franchisee,
which, in the determination of the Town, is inadequate. The cost thereof,
including the cost of inspection and supervision, shall be paid by
the franchisee. The franchisee shall properly safeguard all excavations
made by the franchisee in the rights-of-way. All of the franchisee's
work under this section shall be done in strict compliance with all
applicable rules, regulations and laws of the Town.
(9)
Restoration of damage. The franchisee, at its sole expense, shall
restore all damage to property, both public and private, caused by
the installation, construction, operation, maintenance or repair of
the franchisee's telecommunications system. Such restoration
shall be made as soon as practicable after completion of work necessitating
the restoration and shall be done in a manner approved by the Highway
Superintendent. If any such damage involves pavements, sidewalks,
driveways, water mains, storm and sanitary sewers, traffic control
conduits, cable, or loop system, other public facilities or other
emergency circumstances, the damage shall be repaired to the Town's
satisfaction immediately. In the event that the franchisee or licensee
fails to so restore, the Town has the right, but not the obligation,
to restore the same and charge the franchisee therefor and collect
reimbursement from the franchisee. The franchisee hereby waives any
claims for damages to the telecommunications system that may arise
as a result of the Town's actions.
(10)
Vegetation management. Upon the express written permission of
the Town, the franchisee may trim trees or other vegetation owned
by the Town and private persons or encroaching upon the public rights-of-way
to prevent their branches or leaves from touching or otherwise interfering
with its wires. All trimming or pruning shall be at the sole cost
of the franchisee under the supervision of the Town.
(11)
Reservation of rights. Nothing in this chapter shall prevent
the Town from constructing sewers, grading, paving, repairing and/or
altering any street or public right-of-way or the laying down, repairing
or removing of sewer and/or water mains or constructing or establishing
any other public work or improvement. All such work shall be done,
in so far as practicable, so as not to hinder or prevent the unrestricted
use and operation of the telecommunications system by a franchisee.
If any telecommunications system interferes with the construction
or repair of any public right-of-way or public improvement, including
construction, repair or removal of a sewer and/or water main and any
other public work or improvement, the applicable franchisee's
equipment shall be removed or replaced at the franchisee's expense
in the manner the Town shall direct. The Town will cooperate with
the franchisee to identify possible alternate locations within the
public rights-of-way. Any and all such removal or replacement shall
be at the expense of the franchisee. Should the franchisee fail to
remove, adjust or relocate its facilities by the date established
by the Highway Superintendent's written notice to the franchisee,
the Town may cause and/or effect such removal, adjustment or relocation,
and the expense thereof shall be paid by the franchisee, including
all costs and expenses incurred by the Town due to the franchisee's
delay.
(12)
Public rights-of-way vacation. If any public rights-of-way or
portion thereof used by the franchisee is vacated by the Town during
the term of the franchise agreement or license, and unless the Town
Board specifically reserves to the franchisee the right to continue
in the vacated public rights-of-way area, the franchisee shall, without
expense to the Town, forthwith remove its telecommunications system
from such public rights-of-way, and restore, repair or reconstruct
the public rights-of-way area, where such removal has occurred, and
place the public rights-of-way area in such condition as may be required
by the Town Highway Superintendent which shall be no worse than the
condition of such public rights-of-way immediately prior to removal.
In the event of failure, neglect or refusal of the franchisee, after
30 days' notice by the Town Highway Superintendent, to repair,
improve or maintain such public rights-of-way portions, the Town may
do such work, or cause it to be done, and the direct cost thereof
shall be charged to the franchisee. The Town will cooperate with the
franchisee to identify alternate locations within public rights-of-way.
(13)
Maintenance of facilities.
(a)
The franchisee shall use its telecommunications system facilities
in such a way so as to prevent injury to the Town's property
or property belonging to any person, firm, or corporation within the
Town. The franchisee, at its sole expense, shall repair, renew, change
and improve its facilities from time to time as may be necessary to
accomplish this purpose.
(b)
The franchisee shall not construct its telecommunications system
in a manner that requires any customer to install cables, ducts, conduits
or other facilities, in, under or over the Town streets or other public
rights-of-way.
(c)
The franchisee's facilities shall be installed, constructed,
operated, maintained, used and repaired in such a manner as to provide
for the safety of persons and property, and not interfere with the
free passage of traffic, all in accordance with the Laws of the State
of New York and the Town Code.
(d)
The franchisee shall, to the extent reasonably practicable,
use the public rights-of-way where construction of the facilities
can be coordinated with other Town and private construction activities
and will least impact the existing condition of the public rights-of-way,
will least impact traffic during construction, and will least impact
adjacent neighbors during construction and after installation.
(14)
Discontinuance, expiration or abandonment of facilities.
(a)
Whenever the franchisee intends to discontinue use of its telecommunications
system, by either expiration, abandonment, failure to renew or default
under this chapter, its franchise agreement or license within all
or part of a particular portion of the rights-of-way, and does not
intend to use said facilities again in the future, the franchisee
shall submit to the Town Highway Superintendent, for approval, a completed
application describing the facility and the date on which the franchisee
intends to discontinue using such facility. The franchisee may remove
the facility or request that the Town permit it to remain in place.
(b)
If the franchisee is permitted by the Town to abandon its facilities
in place, the Town shall have the right, but not the obligation, to
assume ownership of the telecommunications system located within the
rights-of-way at no cost, and the franchisee shall deliver all documents
in connection therewith.
(c)
Notwithstanding the franchisee's request that any such
facility remain in place, the Town may require the franchisee to remove
its facilities from the rights-of-way or modify the facility in order
to protect the public health and safety or otherwise serve the public
interest. The Town may also require the franchisee to perform a combination
of modification and removal of the facility. The franchisee shall
complete such removal or modification in accordance with a schedule
set by the Town.
(d)
Until such time as the franchisee removes or modifies the facility
as directed by the Town, or until the rights to and responsibility
for the facility are accepted by the Town or another franchisee so
authorized by the Town, the franchisee shall be responsible for all
necessary repairs and relocations of the facility, as well as maintenance
and restoration of the rights-of-way, in the same manner and degree
as if the facility were in active use, and the franchisee shall retain
all liability for such facility.
(15)
Inspection of facilities. The Town reserves the right to require
at reasonable times, and upon reasonable notice, the inspection of
the franchisee's telecommunications system in the public rights-of-way
during installation, construction, and upon completion. The cost of
any such inspection shall be the sole responsibility of the franchisee.
(16)
Compliance with regulations. All work, including all working
conditions and facilities, associated with the installation, construction,
operation, maintenance and repair of the telecommunications system
shall comply with: all applicable federal, state, and county and Town
laws, rules and regulations now or hereinafter enacted and all fees,
taxes and other payments required hereunder or by such laws, codes,
rules or regulations; the insurance/bond requirements associated with
street openings in the Town contained herein, unless any other applicable
laws, rules or regulations for street openings are stricter than those
set forth herein, and in such case, the franchisee or licensee shall
comply with such stricter requirements; and with the National Electric
Safety Code (NESC) and the National Electric Code (NEC) then current.
The Town shall have the right to reasonable inspections to insure
such compliance.
(17)
Construction on private property. Where the telecommunications
system runs along private property with the permission of the owner
thereof, it shall comply with all applicable rules and regulations.
The franchisee shall provide notice to property owners and tenants
of the property prior to the permitted construction on such private
property, even in the event that the franchisee has an easement for
such property.
(18)
Public hazards. Any openings or obstructions in public rights-of-way
on any Town or public property made by the franchisee shall be guarded
and protected at all times, subject to the approval of the Town Highway
Superintendent, by the placement of adequate barriers, fences, bordering
or other protective devices which shall be clearly designated by warning
lights. The franchisee shall indemnify the Town with respect to any
claim in connection herewith, unless caused by the Town's negligent
acts, and the franchisee shall provide insurance therefor.
(19)
Company identification. The franchisee shall insure that all
of its vehicles and employees are clearly identified to the general
public as being associated with the franchisee when engaged in construction,
maintenance or service of the telecommunications system within the
Town.
(20)
Condition of Town-rights-of-way. The franchisee's telecommunications
system shall be neat and sightly and shall not unnecessarily interfere
with the use of public rights-of-way. The franchisee's cables
shall be suspended or buried so as not to endanger or injure persons
or property in the public rights-of-way. All work by the franchisee
in the public rights-of-way shall be performed so as not to interfere
with the use thereof, and when completed, the public rights-of-way
shall be left in as good condition as when work was commenced.
(21)
Noninterference with construction or utilities.
(a)
All lines, cables and distribution equipment including poles
and necessary appurtenances erected by the franchisee within the Town
shall be located so as not to obstruct or interfere with the proper
use of public rights-of-way or any other public ways and places, and
so as to cause minimum interference with the rights of property owners
who abut any of such public rights-of-way or other public ways and
places, and so as not to interfere with existing public utility installations
or traffic control systems. The franchisee shall remove, at its own
cost and expense, any equipment that now or in the future restricts,
obstructs or interferes with the operation or location of such public
rights-of-way and public places.
(b)
The franchisee or licensee shall not place poles, conduits,
or other fixtures where they will interfere with any gas, electricity,
telephone fixtures, water hydrants, traffic control systems and loops,
or other utility use, and all such poles, conduits or other fixtures
in or upon any public right-of-way shall be so placed as to comply
with all requirements of the Town or other applicable authority and
comply with local regulations, including the aesthetic provisions
thereof.
(22)
No liability. The Town shall not be liable to the franchisee
or to the franchisee's customers for any interference with or
disruption in the operation of the franchisee's telecommunications
system, or for any damages arising out of the franchisee's use
of the public rights-of-way, unless caused by the Town's negligent
acts.
B.
Records/reports required.
(1)
The franchisee shall keep the Town fully informed as to all matters
in connection with or affecting the installation, construction, reconstruction,
removal, maintenance, operation and repair of the franchisee's
telecommunications system.
(2)
The franchisee shall keep its books of account and records in conformity
with generally accepted accounting principles and in such a way that
breakdowns of revenues are available by type of service within the
Town. The Town may also require the keeping of additional records
or accounts which are reasonably necessary for purposes of identifying,
accounting for, and reporting gross revenues and uncollectibles. Such
books and records shall be maintained and available for inspection
for five years after the end of the time period which they record
or until the end of any audit or litigation involving such time period,
whichever is the later.
(3)
In order to help determine the gross revenues received by the franchisee
for compensation purposes, the franchisee agrees to file annually
with the Town, no later than 120 days after the end of the franchisee's
fiscal year, a copy of a financial report, audited by the franchisee's
certified public accountant, covering the telecommunications system,
showing, in detail, the revenues, expenses, capital expenditures,
sources and use of funds, assets and liabilities, a profit and loss
statement and a certification containing such information as the Town
shall specify. Such information or report shall be accurate and complete.
The Town may have the books and records of the franchisee examined
by a representative of the Town to ascertain the correctness of the
reports agreed to be filed herein.
(4)
The franchisee shall keep on file with the Town Clerk a current list
of officers with current addresses. The franchisee shall comply with
the Town's requirements regarding forms for reports, the time
for reports, the frequency with which reports are to be made, and
reports under oath. Filings shall be deemed current if filed within
the times provided under federal law for publicly held companies.
(5)
The franchisee shall provide the Town with access at reasonable times
and for reasonable purposes to examine, audit, review, and/or obtain
copies of the papers, books, accounts, documents, maps, plans, and
other records of the franchisee or licensee pertaining to their respective
agreements. The Town may make inquiries pertaining to the franchisee's
operation of the telecommunications system within the Town, and the
franchisee shall respond to such inquiries in a timely matter.
(6)
If requested by the Town, the franchisee shall, within 30 days of
the request, provide the Town with notices of all nonconfidential
petitions, applications, communications, and reports submitted by
the franchisee to the FCC, Securities and Exchange Commission or their
successor agencies, relating to any matters affecting the use of the
public rights-of-way and/or telecommunications operations authorized
pursuant to the franchise agreement, license or this chapter.
(7)
Within 30 days of receipt, the franchisee shall submit to the Town
copies of all decisions, correspondence and actions by any federal,
state and local courts, regulatory agencies and other governmental
bodies relating to its telecommunications operations within the public
rights-of-way. This subsection shall also apply to legal actions initiated
by the franchisee in relation to its telecommunications operations
within the public rights-of-way, and the Town shall submit similar
information to the franchisee.
(8)
The franchisee acknowledges that information submitted to the Town
is open to public inspection under the New York State Freedom of Information
Law (FOIL). The franchisee is responsible for becoming familiar and
understanding the provisions of FOIL. The franchisee may identify
information, such as trade secrets, financial records, customer information
or technical information, submitted to the Town as confidential under
FOIL. The franchisee shall prominently mark any information for which
it claims confidentiality with the word "confidential" on each page
of such information, prior to submitting such information to the Town.
The Town shall treat any material so marked as confidential until
the Town receives a request for disclosure of such information. To
the extent authorized by FOIL and other applicable state and federal
laws, the Town shall maintain the confidentiality of information designated
as such by the franchisee.
(9)
Within five working days of receiving a request which covers such
confidential material, the Town shall provide the franchisee with
written notice of the request, including a copy of the request. The
franchisee shall have five working days within which to provide a
written response to the Town before the Town may disclose any of the
requested confidential information. The Town retains the final discretion
to determine whether to release the requested confidential information.
C.
Insurance requirement.
(1)
The franchisee shall obtain and maintain in full force and effect
throughout the term of the respective agreements and any extensions
or renewals thereof, insurance with an insurance company licensed
to do business in the State of New York. Said insurance shall protect
the franchisee and the Town from any claims which may arise directly
or indirectly or result from its granting of a franchise agreement
or license, including but not limited to activity associated with
the placement or maintenance of the franchisee's telecommunications
system, whether such operations are performed by the franchisee, or
by anyone for whose acts the franchisee may be liable.
(2)
The Town reserves the right to review these insurance requirements
during the effective period of the franchise agreement or license
and any extension or renewal thereof, and to adjust insurance coverage
and limits when deemed necessary and prudent by the Town Attorney,
based upon changes in statutory law, court decisions, or the claims
history of the industry or the franchisee.
(3)
The insurance to be maintained by the franchisee shall include, but
shall not be limited to, the following:
(a)
Workers compensation and employees liability insurance supplied
in statutory amounts providing protection for the franchisee's
employees;
(b)
Automobile liability insurance with the limits of not less than
$1,000,000 for each accident arising out of the ownership, maintenance
or use of motor vehicles;
(c)
Comprehensive general liability insurance including contractual,
premises/completed operations, explosion, collapse and underground
property damage and broad form property insurance with limits of not
less than $1,000,000 for bodily injury, including accidental death,
and $5,000,000 in the aggregate, and property damage liability insurance
in an amount not less than $1,000,000 per occurrence.
(4)
The franchisee shall, with respect to the required insurance, procure
insurance contracts which:
(a)
Name the Town and its officers, employees, board members and
elected representatives as additional named insureds, as the interests
of each insured may appear, as to all applicable coverage;
(b)
Provide for 30 days' written notice to the Town Attorney
of cancellation, nonrenewal, or material change;
(c)
Provide that all provisions of the franchise agreement or license,
as amended, concerning liability, duty, and standard of care, including
indemnity under any franchise or license agreement shall be insured
by contractual coverage sufficient to cover the franchisee's
obligations;
(d)
Provide that insurers shall have no right of recovery against
the Town, it being intended that the insurance policies shall protect
the franchisee and the Town and shall be primary coverage for all
losses covered by the policies;
(e)
Provide that the policy clause "other insurance" shall not apply
to the Town where the Town is an insured on the policy;
(f)
Insurers shall have no recourse against the Town for payment
of any premiums or assessments which shall be the sole responsibility
of the franchisee.
D.
Bonds.
(1)
The franchisee shall obtain and maintain, at its sole cost and expense,
and file with the Town Attorney, a corporate surety bond which shall
be renewable annually or multiyear, with a surety company authorized
to do business in the State of New York and acceptable to the Town
Attorney, in the amount of 50% of the projected total project cost
to secure the franchisee's faithful performance of its obligations
and faithful adherence to all of the terms and conditions of the franchise
agreement or license. This bond shall have the further condition that,
in the event that the franchisee shall fail to complete the required
construction of the system as set forth in the franchise, there shall
be recoverable, jointly, and severally, from the principal and the
surety of the bond any damage or loss suffered by the Town as a result
of said construction, including the full amount of any cost of removal
or abandonment of any property of the franchisee, plus an allowance
for reasonable attorney's fees and costs up to the full amount
of the bond. The franchisee shall maintain and keep the bond in full
force and effect at all times throughout the term of the franchise
agreement or license, including, if necessary, the time required for
removal of all the franchisee's telecommunications system facilities
installed in the public rights-of-way.
(2)
Each such bond shall contain a covenant or endorsement of the surety
to provide 60 days' written notice to the Town Attorney and the
franchisee of such surety's intention to cancel, substantially
change, or not to renew such bond. The franchisee shall, in the event
of such notice, obtain, pay premiums for, and file with the Town Attorney
written evidence of the issuance of replacement bonds prior to the
expiration of any such bond.
(3)
The bond shall provide, but not be limited to, the following condition:
there shall be recovery by the Town, jointly and severally from the
principal and surety, of any and all damages, losses, or costs suffered
by the Town resulting from the failure of the franchisee to adhere
to the terms and conditions of the franchise agreement or license.
The Town's right to recover under the bond shall be in addition
to any other rights it may have pursuant to this chapter, franchise
agreement or license.
(4)
If the financial condition of any bonding company issuing a bond
pursuant to this section materially and adversely changes, the Town
may, at any time, require that any such bond be replaced with such
other bond consistent with the requirements set forth in this section.
The Town reserves the right to stop any work related to the telecommunications
system until proper evidence of bonding is furnished.
(5)
Upon substantial completion of all construction within the public rights-of-way authorized or required by its franchise, a franchisee may request in writing to the Town Board that the bond be reduced to an amount of $10,000 or two times the estimated cost of the remaining construction, whichever is greater. Upon the completion of all remaining construction, the franchisee shall request, in writing, that the requirement for said bond be ended. The Town Board shall, after satisfying itself of the appropriateness of such request, approve the franchisee's request for reduction or cancellation of the required performance bond. Prior to any additional required construction within the public rights-of-way within the service area, a performance bond, as described in Subsection D(1) shall be submitted and maintained during the additional construction in its original penal sum.
E.
Assignment/transfer.
(1)
The franchisee or licensee may not assign its rights and/or obligations
hereunder without the Town's consent except: to any subsidiary,
parent company or affiliate of the franchisee; or pursuant to any
financing, merger or reorganization of the franchisee, provided that
the franchisee shall have given the Town written notice of such assignment
not less than 30 days after the date on which such assignment became
effective. Such assignment shall not discharge the franchisee from
liability or responsibility for the performance of the franchisee's
obligations under the chapter, franchise agreement, or license.
(2)
In the event of assignment to any other third party by the franchisee,
such assignment shall be subject to and contingent upon the consent
of the Town as authorized by resolution of the Town Board, and then
only on such conditions as may therein be prescribed. Such consent
shall not be unreasonably withheld. The franchisee shall notify the
Town of any such assignment requiring the Town's consent not
less than 30 days prior to the effective date of the assignment. Such
notice shall be accompanied by:
(a)
The proposed agreement between the franchisee and the proposed
buyer, lessee, mortgagee, assignee or transferee; and
(b)
An agreement from the proposed buyer, lessee, mortgagee, assignee
or transferee assuming the provisions of the chapter, franchise agreement
or license; and
(c)
A statement setting forth in reasonable detail the identity
of the proposed buyer, lessee, mortgagee, assignee or transferee.
(3)
The franchisee shall also provide the Town with any additional information
or documents reasonably requested by the Town and an opportunity to
meet and interview the proposed assignee or transferee. In the event
that the franchisee complied with the foregoing, the Town shall not
unreasonably withhold its consent so long as:
(a)
The franchisee shall have paid the Town any reasonable costs
incurred by the Town to review the requested consent, including, without
limitation, attorney's fees;
(b)
The proposed assignee or transferee is a reputable entity and
the Town has been furnished with reasonable proof thereof;
(c)
The proposed assignee or transferee is of sound financial condition
as reasonably determined by the Town given the obligations to be assumed
by the proposed assignee or transferee; and
(d)
The proposed assignee or transferee agrees to enter into an
agreement approved by the Town, under which it assumes the obligations
under the franchise agreement or license.
F.
Remaining terms and conditions.
(1)
Neither a franchise nor a license shall create a vested right in
a franchisee to occupy a particular location or particular locations
in the public rights-of-way.
(2)
The remaining terms and conditions applicable to any franchise or
license granted pursuant to this chapter shall be set forth in the
separate resolution granting the franchise or license and/or in the
franchise agreement or the license itself.
(3)
A franchise or license granted pursuant to this chapter shall be
for a period of 10 years, except that lesser terms may be specified
in particular cases. Licenses may be renewed upon timely application
by the licensee for a term and on such conditions and at a fee or
rent accepted by the Town. The renewal of any franchise shall be conducted
in a manner consistent with applicable federal law.
A.
The public rights-of-way to be used by the franchisee in the operation of its telecommunications system within the boundaries of the Town are valuable public properties, acquired and maintained by the Town at great expense to its taxpayers. The grant to the franchisee of the use of public rights-of-way is a valuable property right without which the franchisee would be required to invest substantial capital in rights-of-way costs and acquisitions. The franchisee therefore shall pay the Town, no later than March 31 of each year of the franchise agreement, as general compensation, the greater of the minimum annual fee or the annual gross revenue based fee, as set forth below. Where a telecommunications provider's system is using the public rights-of-way pursuant to a license granted under § 139-4C, compensation to the Town shall be calculated as set forth in § 139-13.
B.
The annual gross revenue based fee is equal to 5% of the franchisee's
gross revenues, as defined in this chapter. The minimum annual franchise
fee is the greater of $5,000 or the amount paid to the Town as compensation
for the prior year. The payment of these fees shall in no way be construed
to be the payment of real estate taxes or permit and application fees
to the Town nor shall such franchise fee constitute a deduction from
the gross revenues for the purposes of computing the amount of franchise
fee due. Interest at 10% per annum will be payable on late payments.
The public rights-of-way are valuable public properties, acquired
and maintained by the Town at great expense to its taxpayers, and
the grant to the licensee of the use of the public rights-of-way is
a valuable property right without which the licensee would be required
to invest substantial capital in rights-of-way costs and acquisitions.
Therefore, the licensee shall pay the Town as general compensation,
no later than March 31 of each year for the duration of the license,
an amount equal to the greater of a minimum annual fee of $5,000;
or an annual fee of $2.50 per linear foot of the licensee's telecommunications
system in the public rights-of-way. The total number of linear feet
of the licensee's telecommunications system located in the public
rights-of-way shall be determined by the as-built maps submitted by
the licensee and approved by the Town Highway Department. Interest
at 10% per annum will be payable on late payments.
If any section, subsection, sentence, clause, phrase or other
portion of this chapter is, for any reason, declared invalid, in whole
or in part, by any court, agency, commission, legislative body or
other authority of competent jurisdiction, such portion shall be deemed
a separate, distinct and independent portion. Such declaration shall
not affect the validity of the remaining portions hereof, which other
portions shall continue in full force and effect.
The Town Board shall have the right to delegate and redelegate,
and to revoke any such delegation or redelegation, from time to time,
of any of its rights or obligations under this chapter to any body,
organization or official of the Town. Any such delegation, redelegation
or revocation, no matter how often made, shall not be deemed an amendment
to this chapter or to require the consent of any applicant for a franchise
or license.
To the extent permitted by law, the Town shall apply all provisions
of this chapter to telecommunications providers, franchisees, licensees
or other rights-of-way authorizations existing on the effective date
of this chapter.
A.
Failure to comply with the requirements of this chapter shall constitute
a violation. Should the Town determine the franchisee to be in violation
of this chapter or their respective agreements, the Town may foreclose
on all or any part of any security provided for under this chapter
or in the respective agreements, including without limitation, any
bonds or other surety; provided however, that the foreclosure shall
only be in such a manner and in such an amount as the Town reasonably
determines is necessary to remedy the default, and provided that the
Town shall not make any withdrawals by reason of any violation for
which the franchisee or licensee has not been given notice. A person
who is found to be in violation of this chapter shall thereafter be
made to comply with all applicable requirements and shall be required
to submit all paperwork and pay all required fees.
B.
Failure to obtain the necessary approvals shall additionally result
in late charges for the time period in which the violator did not
have approval, plus the actual costs incurred by the Town in enforcing
this chapter against the person. In such an instance, the offender
shall be required to remove all equipment illegally placed in the
Town rights-of-way and to restore said property to its original condition
in addition to any other penalty provided by law. Failure to follow
the procedures in this chapter may result in the refusal by the Town
to consider future applications for permits, licenses or franchises.
C.
In the event that a permit in furtherance of a franchise has been
issued to a franchisee by the Town, the franchisee's failure
to comply with the requirements set forth by law and all standards
required by the Town may additionally result in forfeiture of the
permit as determined by the Town Board after notice and reasonable
opportunity to be heard is extended to the franchisee.
D.
Failure to perform.
(1)
In addition to all other rights and powers pertaining to the Town
by virtue of any franchise, license, this chapter or otherwise, the
Town reserves the right to impose penalties or liquidated damages,
revoke, terminate, or reduce the term of any franchise or license
and all rights and privileges of a franchisee thereunder in the event
that the franchisee:
(a)
Defaults in the performance of any of its material obligations
under its franchise or license, this chapter, or under such documents,
contracts and other terms and provisions entered into by and between
the Town and the franchisee or licensee;
(b)
Fails to provide or maintain in full force and effect, the liability
and indemnification coverage as required herein;
(c)
Frequently and materially violates any orders or rulings of
any regulatory body having jurisdiction over the franchisee or licensee
relative to this franchise or license unless such orders or rulings
are being contested by the franchisee in a court of competent jurisdiction;
(d)
Fails to receive necessary FCC approvals within the applicable
and appropriate time;
(e)
Attempts to evade any of the provisions of this chapter or its
franchise or license agreement or practices any fraud or deceit upon
the Town.
(2)
A franchisee shall not be declared at fault or be subject to any
sanction under any provision of its franchise or this chapter in any
case in which performance of any such provision is prevented for reasons
beyond the franchisee's control.
E.
Any person who knowingly violates any prohibition in this chapter
shall be guilty of a violation of this chapter, and upon conviction
thereof, shall be fined the amount of $500 per day for each day that
such violation is proven to have occurred or continued.
F.
In addition to any other remedies hereunder, the Town may seek an
injunction or other judicial relief to mitigate or terminate a violation,
or employ any other remedy available at law or equity.
G.
Revocation, reduction of term and forfeiture of facilities.
(1)
In the event that the Town believes that a franchisee or licensee
has not complied with the terms of its license or franchise, the Town
shall notify the franchisee in writing of the exact nature of the
alleged noncompliance.
(2)
The franchisee shall have 30 days from receipt of the notice described in Subsection G(1) above to:
(a)
Respond to the Town contesting the assertion of noncompliance;
or
(b)
Cure such default; or
(c)
In the event that, by the nature of the default, such default
cannot be cured within the thirty-day period, the franchisee shall
initiate reasonable steps to remedy such default and notify the Town
of the steps being taken and the projected date that they will be
completed.
(3)
Forfeiture of facilities. Any communications facility constructed,
maintained, or operated in this Town in material violation of this
chapter, including but not limited to default as to timely payment
of annual fees hereunder, is subject to forfeiture; and the Town may
seize, disable, remove, or destroy such facility upon 30 days'
advance notice in writing to the franchisee or owner or operator thereof;
provided, however, that where the safety of any person or property
lawfully within the public rights-of-way is endangered thereby, only
such notice as is practicable under the circumstances need be given.
(4)
Revocation.
(a)
A license or franchise may be revoked by the Town with the approval
of the Town Board; provided, however, that the Town shall have then
given further notice of the Town's intention to revoke the license
or franchise for failure to timely correct the breach or violation,
and advising the franchisee of its right to demand, within 10 days,
a public hearing with the Town Board.
(b)
Following such hearing as the licensee or franchisee may demand,
or upon the failure to make timely demand for a hearing, the Town
Board may request public comments on the proposed revocation.
(c)
The Town Board shall give public notice of its intention to
consider the revocation of a license or franchise and shall hold a
public hearing thereon unless waived by the franchisee. The Town Board
shall thereafter determine by written resolution or other form of
decision whether to revoke the franchise or license based on information
presented at the public hearing and other evidence in the record.
The resolution or other form of decision shall set forth the particulars
of the breach of the franchise or license agreement or any violations
of this chapter which were the basis for the revocation.
(d)
Subject to applicable federal and state law, in the event the
Town Board, after such meeting, determines that a licensee or franchisee
is in substantial default of a material provision of the license or
franchise, the Town Board may declare the license or franchise to
be revoked.
(e)
In a situation where a license or franchise is revoked, in removing
its plant, structures and equipment, the franchisee shall refill,
at its own expense, any excavation that shall be made by it and shall
leave all public rights-of-way and public property in as good a condition
as prevailed prior to the franchisee's removal of its equipment
and appliances without affecting the electrical or telephone cable
wires, or attachments. The Town Highway Superintendent shall inspect
and approve the condition of the public rights-of-way and public property.
Liability and indemnity insurance as provided herein shall continue
in full force and effect during the period of removal and until full
compliance by the franchisee with the terms and conditions of this
subsection and this chapter.
(f)
In the event of a failure by a franchisee to complete any work required by Subsection G(4)(e) above, or any other work required by the Town Code within the time as may be established by the Town Board and to the satisfaction of the Town, the Town may cause such work to be done and the franchisee shall reimburse the Town the cost thereof within 30 days after receipt of an itemized list of such costs. The Town shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
(g)
Upon the revocation of a franchise, the Town may require the
franchisee to continue to operate the system for a period not to exceed
six months from the date of such revocation. The franchisee shall,
as trustee for its successor in interest, continue to operate the
system under the terms and conditions of its franchise and to provide
cable service that may be provided at that time. The Town shall be
permitted to seek legal and equitable relief to enforce the provisions
of this section.
(h)
The termination and forfeiture of any license or franchise shall
in no way affect any of the rights of the Town or franchisee under
the license or franchise or any provision of law.
H.
No waiver. The failure of the Town to insist on timely performance
or compliance by any person holding a license, franchise, lease, or
work permit shall not constitute a waiver of the Town's right
to later insist on timely performance or compliance by that person
or any other person holding such a license, franchise, lease, or work
permit.
This chapter shall take effect upon its proper filing in the
office of the Secretary of State.
