[HISTORY: Adopted by the Town Board of the
Town of North Greenbush 9-28-2000 by L.L. No. 5-2000.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Cable Television Advisory Committee — See Ch. 7.
[1]
Editor's Note: This local law also stated
that it superseded 47 U.S.C. § 253(c), New York State Transportation
Corporations Law § 27, and New York State Town Law § 64(7),
to the extent that the terms hereof are inconsistent with said laws.
A.
The Town Board of the Town of North Greenbush has
determined that the Town highway rights-of-way are a valuable public
resource that has required and will continue to require prudent management
by the Town.
B.
Because of advancements in communications technology,
changes in federal and state regulations allowing many new entrants
into the telecommunications industry, and increased demand for telecommunications
services, the Town expects a significant increase in demand for the
use of its rights-of-way by telecommunications services providers
for the placement of their fiber-optic cables, electrical conductors,
conduits and related infrastructure. Thus, the Town finds that the
public convenience, safety and general welfare can best be served
by establishing regulatory powers and procedures to protect and manage
the public rights-of-way.
C.
The Town desires to implement a fair and orderly process
for granting nonexclusive franchises to use and occupy the Town highway
rights-of-way. In doing so, consistent with applicable law, the Town
desires to manage its public rights-of-way and obtain fair and reasonable
compensation from telecommunications providers on a competitively
neutral and nondiscriminatory basis, without creating substantial
barriers to entry into the Town's telecommunications market.
D.
The Town desires to minimize inconvenience and disruption
to the public, provide for the orderly and efficient use of the public
rights-of-way now and in the future, and preserve adequate capacity
for existing and future uses of its rights-of-way. The Town intends
to exercise, to the fullest extent permitted by applicable law, its
authority with respect to regulating the occupation and use of its
public rights-of-way in connection with the provision of telecommunications
services.
As used in this chapter, the following terms
shall have the meanings indicated:
Any person who applies for a franchise pursuant to this chapter.
Cable services as currently defined in 47 U.S.C. § 522,
and as may be further amended from time to time. In the event that
"cable services" is no longer defined in federal law or the definition
becomes inapplicable, "cable services" shall mean cable services as
defined in federal law immediately prior to the change that repeals
the definition or renders it inapplicable.
Wires, electrical or optical cables, conductors, amplifiers,
antennas, waveguides, electronic devices, poles. conduits, subways,
manholes, junction boxes, terminal blocks, fixtures and any other
parts of a system which is used to provide telecommunications.
The surface of, as well as the spaces above and below, any
and all streets, alleyways, avenues, highways, boulevards, driveways,
bridges, tunnels, parks, parkways, public grounds or waters, and any
other public property or place belonging to the Town or any special
districts of the Town.
All electrical or optical transmissions, between or among
points specified by the user, of information of the user's choosing,
without a change in content as sent and received.
Any person who owns, leases, installs, constructs, operates
or maintains within the public rights-of-way infrastructure or other
items that are used to provide telecommunications services, contain
or house other infrastructure that is used to provide telecommunications
services, or otherwise support the provision of telecommunications
services by other persons.
Any provision of telecommunications using infrastructure,
as defined in this chapter. Telecommunications services shall not
include cable services as defined in 47 U.S.C § 522 and
open video systems pursuant to 47 U.S.C. § 573.
The use of directional boring, horizontal drilling and/or
microtunneling, and other techniques intended to minimize the amount
of disruption and damage to the public rights-of-way and utilities
and equipment buried therein.
A.
The Town Board is empowered to issue, in accordance
with this chapter, nonexclusive franchises to install, construct and
maintain telecommunications infrastructure in the Town's public rights-of-way,
as well as to regulate these activities to the extent permitted by
law.
B.
Any franchise granted under this chapter shall be
nonexclusive. The Town Board reserves the right to grant, at any time,
any additional franchises, licenses or other authorizations to use
or occupy the public rights-of-way in any manner that the Board deems
appropriate.
C.
No telecommunications services provider shall have
a vested right to any particular location within the Town's public
rights-of-way.
A.
No person shall use, occupy or disturb the subsurface
rights-of-way as a telecommunications provider without a franchise
granted by the Town Board and a permit granted by the Town Highway
Department.
B.
No telecommunications provider shall construct or
install poles or other aboveground infrastructure support structures
(except for the replacement of existing poles or support structures)
without a permit granted by the Town Highway Department. If the provider
is not proposing to conduct any subsurface activity within the Town's
public rights-of-way, then it need not comply with any of the other
provisions of this chapter, but shall be subject to any other applicable
laws.
C.
A franchise granted in accordance with this chapter
does not grant any rights or authorization to provide cable services
within the Town. Any person seeking to provide cable services shall
first obtain a cable television franchise in accordance with the Town
Code.
D.
A person providing cable services within the Town
under a currently valid cable television franchise agreement need
not obtain a separate franchise under this chapter to provide telecommunications
services through systems or equipment that it is using to provide
cable services. However, that person must comply with this chapter
with regard to all use, occupation or disturbance of subsurface public
rights-of-way for any systems or equipment used exclusively for the
provision of telecommunications services.
The minimum general procedural steps that the
telecommunications franchise applicant and the Town shall follow are:
A.
The applicant shall submit a telecommunications right-of-way
use application to the Town Engineer. The application shall contain,
at minimum, the following information:
(1)
The name, business address and telephone number of
the applicant and the person whom the Town may contact concerning
the application.
(2)
A complete description of the specifically identified
rights-of-way and/or portions thereof that the applicant proposes
to use.
(3)
A proposed construction schedule and sequence.
(4)
Plans and profiles showing the proposed location of
the infrastructure to be laid within the subsurface rights-of-way
and all existing utilities, cables, conduits and telecommunications
infrastructure within those rights-of-way. All existing underground
utilities, cables, conduits and telecommunications infrastructure
shall be located using Underground Facilities Protective Organization
(UFPO) or its successors. If the construction is to be carried out
in phases, this provision shall apply to each phase. All maps submitted
must be in a format and scale that is acceptable to the Town Engineer.
B.
The applicant may identify submitted information such
as trade secrets or technical information as confidential under the
New York State Freedom of Information Law. Any information for which
the applicant claims confidentiality shall be clearly marked "Confidential"
by the applicant prior to submission. To the extent authorized by
the Freedom of Information Law and other applicable state and federal
laws, the Town shall maintain the confidentiality of the information
so marked.
C.
The application shall be accompanied by a nonrefundable
application fee of $500. Additionally, at the time of application
the applicant shall remit to the Town Building Department a deposit
of $2,500 cash or cashier's check which shall be returned to the applicant
upon the submission of final maps and/or engineering drawings showing
the locations of its as-built telecommunications infrastructure within
the public rights-of-way. In the case of rejection of the application
or denial of a franchise, this deposit will be returned to the applicant.
The purpose of this deposit is to encourage the timely submission
of as-built drawings upon project completion.
D.
After the above items have been provided, the Building
Department may circulate them to other affected Town boards, committees
or departments for preliminary comments. These comments shall be forwarded
to and addressed by the applicant prior to Building Department approval.
E.
The Town Engineer shall have discretion to require
the applicant to modify its right-of-way use proposal prior to its
approval. Such modifications may include changes in placement, construction
methods, denial of use of particular subsurface rights-of-way listed
in the applicant's proposal, and/or any other modifications that the
Town Engineer deems necessary in order to practice proper management
and protection of the public rights-of-way.
F.
The Town Engineer may reject any application which
is incomplete or otherwise fails to comply with applicable laws, ordinances,
resolutions, rules, regulations or other directives of the Town and
any federal, state or local authority having jurisdiction.
G.
After the Town Engineer has completed his or her review and is satisfied that the application complies with the Town's specifications, the Town Engineer shall forward the application to the Town Clerk. The Town Clerk shall make one copy (omitting any confidential information as described in Subsection B above) available for public inspection during regular Town Hall business hours and shall forward the remaining copies to the Town Board members.
A.
Prior to the issuance of a franchise, the Town Board
shall hold a public hearing, following public notice as prescribed
by New York State Town Law, at which the applicant and its application
shall be examined and the public and all interested parties afforded
a reasonable opportunity to be heard.
B.
Consistent with applicable law, upon completion of
all of the procedures described in this chapter, the Town Board may
grant the franchise and may specify the conditions under which the
franchise is granted.
C.
After Town Board approval and prior to commencing
work in the rights-of-way, the franchisee shall obtain a highway permit
from the Town Highway Department.
A.
The franchisee shall obtain and maintain, at its cost,
insurance in full force and effect throughout the term of the franchise
from an insurance company licensed to do business in the State of
New York. This insurance shall protect both the franchisee and the Town
from any claims which may arise directly or indirectly from the granting
of a franchise, including but not limited to activity associated with
the placement or maintenance of the franchisee's infrastructure, whether
these operations are performed by the franchisee or by anyone for
whose acts the franchisee may be liable. The Town may review these
insurance requirements during the term of the franchise and any extension
or renewal thereof and may require the franchisee to adjust the insurance
coverages and limits when deemed necessary and prudent by the Town
Attorney, based upon changes in statutes, regulations, court decisions
or the claims history of the industry or the franchisee.
B.
The insurance obtained and maintained by the franchisee
shall include, but shall not be limited to, the following:
(1)
Workers' compensation and employee liability insurance
supplied in statutory amounts providing protection for employees of
the franchisee in the event of job-related injuries.
(2)
General liability, including comprehensive form, contractual,
premises/completed operations, explosion, collapse and underground
property damage and broad-form property insurance, shall be furnished
with limits of not less than $1,000,000 for each occurrence and $2,000,000
annual aggregate for bodily injury and property damage.
(3)
Any and all insurance coverages required by applicable
law.
C.
The insurance obtained and maintained by the franchisee
shall contain the following provisions:
(1)
The policy shall name the Town of North Greenbush,
its officers, employees and elected officials as additional insureds,
as the interests of each insured may appear, regarding all applicable
coverage.
(2)
The policy shall provide for 30 days' notice to the
Town Attorney for cancellation, nonrenewal or material change.
(3)
Insurers shall have no right of recovery against the
Town. It is the intention that the insurance shall protect both the
franchisee and the Town, and the Town shall be primary coverage for
all losses covered by the insurance.
(4)
The policy clause "other insurance" shall not apply
to the Town where the Town is named as an insured on the policy.
(5)
Companies issuing the insurance policies shall have
no recourse against the Town for payment of any premiums or assessments
which are set at the sole risk of the franchisee.
The Town may require the inspection, at reasonable
times and upon reasonable notice, of the franchisee's work in the
public rights-of-way during installation and construction and also
upon completion of the work. The cost of this inspection shall be
borne by the franchisee.
A.
Once franchise and highway permits are granted, the
franchisee may make excavations in Town rights-of-way for any facilities
needed for the installation and construction of the franchisee's telecommunications
infrastructure.
B.
All right-of-way use and occupation shall conform
to federal, state and local laws and the Town's requirements, which
are available from the Town Engineer. Any repair or replacement of
infrastructure must also be performed in conformance with Town requirements
and must be inspected for compliance by the Town Engineer.
C.
Trenchless technology is the preferred method of excavation
and shall be utilized wherever possible.
D.
All excavations or other construction shall interfere
to the least possible degree with the use of public and private property
and in accordance with the Town Engineer's directives.
E.
Upon completion of the work, the franchisee shall
promptly restore the rights-of-way to their preconstruction condition
and to the satisfaction of the Town Engineer. Whenever an opening
is made by the franchisee in a hard surface pavement in any street,
the franchisee shall promptly refill the opening and restore the surface
in a manner that complies with Town highway and drainage standards.
F.
All construction by the franchisee shall be properly
safeguarded by the franchisee for the prevention of accidents.
G.
If the Town Engineer finds the franchisee's restoration
work unsatisfactory, the Town may, upon notice to the franchisee,
make any necessary street or right-of-way repairs. The expense of
these repairs shall be paid by the franchisee.
H.
All damage to private or public property caused by
the installation, construction, operation, maintenance or repair of
the franchisee's infrastructure shall be repaired as soon as practicable
and shall be done in a manner satisfactory to the Town Engineer. If
the franchisee fails to make these repairs, the Town may make the
repairs, and the expense of these repairs shall be paid by the franchisee.
J.
The franchisee shall ensure that all of its vehicles
and employees are clearly identified to the general public as being
associated with the franchisee or its agents while engaged in construction
or maintenance of its subsurface infrastructure.
K.
In the event of a public emergency, the Town may sever,
disrupt, dig up or otherwise destroy the franchisee's infrastructure
within the public rights-of-way without any prior notice if any such
action is deemed necessary by the Town Supervisor, Police Chief or
Town Engineer. The Town shall notify the franchisee as soon as reasonably
possible. For the purposes of this chapter, a public emergency is
any condition which, in the opinion of the above-named officials,
possesses an immediate threat to the lives or property of any of the
citizens of the Town caused by any natural or man-made disaster. The
franchisee shall bear the cost of repairs to its facilities damaged
by any action taken by the Town under this subsection.
L.
The Town may order the franchisee to protect, support,
relocate or temporarily remove or disconnect its infrastructure within
the subsurface public rights-of-way when the public convenience requires
such action. The Town shall make this order in writing to the franchisee.
The franchisee shall bear the cost of the action requested under this
subsection. If the franchisee fails to fulfill the order by the date
established by the Town, the Town may conduct the action at the expense
of the franchisee and may also charge the franchisee for any additional
expenses incurred by the Town resulting from the franchisee's delay
in fulfilling the order.
In the event that the franchisee must make emergency
repairs to its subsurface infrastructure, the franchisee shall obtain
a highway permit before commencing repairs. If the repairs must be
commenced outside of the Town's regular business hours, the franchisee
may commence work without a permit but shall obtain a highway permit
by noon of the next Town business day.
A.
For the reason that the public rights-of-way are valuable
public properties, essential for the general welfare of the public
and acquired and maintained by the Town at great expense to its taxpayers,
the franchisee shall pay the Town, as general compensation, for the
duration of the franchise, an annual fee of $450 per 1,000 lineal
feet (rounded upward to the nearest 1,000 feet) of the Town's rights-of-way
used and occupied by the franchisee's infrastructure. This fee shall
be payable in January of each year. The Town Engineer shall produce
a form to be submitted by the franchisee for the purpose of establishing
the amount of compensation due.
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 of this chapter,
and these remaining portions shall continue in full force and effect.
