A.
A master license agreement or permit granted by the City may be revoked
for a violation of the provisions of this chapter or violation of
any terms or conditions of such license or permit, including but not
limited to the following:
(1)
Construction or operation at an unauthorized location;
(2)
Material misrepresentation or fraud by the licensee or permittee;
(3)
Abandonment of facilities or accessory equipment in the right-of-way
without proper notice or removal;
(4)
Failure to relocate or remove facilities or accessory equipment as
required by the City Engineer;
(5)
Failure to timely pay compensation, fees or other costs due the City;
(6)
Failure to maintain required insurance and securities;
(7)
Failure to provide or maintain required records, maps, and studies;
(8)
Failure to obtain permits pursuant to Chapter 104 or to comply with any permit conditions or requirements;
(9)
Failure to adhere to the specifications authorized by the permit
or master license agreement, including but not limited to altered
uses, expanded dimensions, or changes in character;
(10)
Selling or leasing an interest in telecommunications facilities
in the right-of-way without proper notice, documentation and authorization
as required by this chapter;
(11)
The use approved has ceased, never begun, or has been suspended
for six months or more;
(12)
Failure to comply with any applicable laws, including this chapter;
(13)
A substantive change in law affecting the licensee or permittee's
authority to occupy or use the right-of-way or the City's authority
to impose regulations relating to such occupation or use;
(14)
Facilities or accessory equipment interfere with a City project;
(15)
Facilities or accessory equipment interfere with vehicular or
pedestrian use of the right-of-way; or
(16)
Failure to make timely and safe restoration of the right-of-way.
B.
In determining whether any of the foregoing violations have occurred
and whether to revoke the license or permit, the City Engineer may
consider the nature, circumstances, extent and gravity of the violation,
including but not limited to one or more of the following considerations:
C.
In the event that the City finds that grounds exist for revocation
of a license and/or permit, written notice of the violation shall
be sent to the licensee or permittee. Such notice will provide 30
days from issuance of the notice of violation for the licensee or
permittee to correct the violation or rebut the violation in writing
to the City Engineer and request a hearing; provided, however, that
the City reserves the right to take any action authorized in this
chapter to correct the violation.
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If the licensee or permittee does not request a hearing or does not respond within 10 days to the City's notice, the license or permit will be immediately revoked. Upon notice of revocation, the licensee and/or permittee must immediately cease work, remove all equipment and property from the right-of-way, and restore the right-of-way to a condition acceptable to the City Engineer. Revocation may be appealed as set forth in § 106-19 below.
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If the licensee or permittee submits a written statement rebutting
the violations and requesting a hearing, the City Engineer shall either:
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D.
Nothing herein shall preclude the City from pursuing any available
legal remedies.
A.
The Commissioner shall grant a hearing to be scheduled no later than
30 days from the receipt of a request for a hearing.
B.
The appellant shall be permitted representation by counsel, the ability
to submit evidence and summon witnesses on his or her behalf, and
to inspect appropriate documents and cross-examine opposing witnesses.
Compliance with the technical rules of evidence shall not be required.
The Commissioner shall make the final determination in writing, based
upon evidence produced at the hearing and the standards and considerations
set forth in this chapter. The Commissioner may impose reasonable
costs incurred by the City as a result of the specified violations.
The determination of the Commissioner shall be a final decision and
shall be subject to review pursuant to Article 78 of the Civil Practice
Law and Rules.
A license or permit granted pursuant to this chapter may be
assigned by a provider to a parent, affiliate, or subsidiary acquiring
51% or more of the provider's stock or assets, without the prior
written approval of City, by reason of a merger, acquisition or other
business reorganization; however, in such case the City shall be so
notified within 10 days of the transaction and shall be provided with
any changes in contact information and revisions or amendments to
securities and insurances. The provider shall provide written confirmation,
acceptable to the Director of Finance, that all securities and insurances
required under this agreement remain in effect. As to other parties,
this agreement and any permit under it may not be sold, assigned or
transferred without the written consent of the City, which approval
shall not be unreasonably withheld, conditioned, or delayed. The City's
consent to the assignment of this agreement shall be conditioned upon
the new owners, assignees, partners or other necessary parties confirming,
to the City's satisfaction, their ability and obligation to comply
with all of the requirements of this agreement and absent such confirmation,
this agreement may be terminated and any permits voided.
A.
If a permittee intends to abandon any portion of its facilities or
accessory equipment, it shall notify the City Engineer in writing
at least 30 days in advance and shall either promptly vacate and remove
the facilities and obtain all necessary permits, at its own expense,
or upon written City Engineer approval, abandon some or all of the
facilities in place, in which case ownership of the abandoned facilities
shall be deemed to transfer to the City.
B.
After the removal or relocation of its facilities and accessory equipment, the permittee, at its own cost, shall repair and restore the right-of-way to a safe and satisfactory condition in accordance with generally applicable construction standards and specifications established by this chapter, Chapter 104, and the rules and regulations. Should the permittee remove or relocate its facilities in the right-of-way, it shall give the City not less than 30 days' prior written notice of its intent to do so. Before proceeding with removal or relocation work, the permittee shall obtain such additional permits as may be required.
C.
In the event that the City has received notice of intent to abandon as set forth in Subsection A above and the permittee fails to remove its facilities or accessory equipment within 30 days from such abandonment notice (except for any facilities which the City Engineer has approved to remain in place), the City may remove or cause to be removed some or all of the abandoned facilities or accessory equipment without further notice and may charge the permittee for all costs incurred for such removal and storage, including all costs to restore the right-of-way and any penalties authorized by Chapter 104. Failure of the permittee to pay all such costs within 10 days from receipt of the City's demand for payment shall constitute grounds for the City to draw on the security established pursuant to § 106-24.
D.
If the City has not received a notice of intent to abandon from the permittee but otherwise determines that the permittee has abandoned its facilities or accessory equipment, the City shall notify the permittee of its determination that the permittee's facilities or accessory equipment have been abandoned and demand a plan for removal of the abandoned facilities or accessory equipment. If the permittee fails to respond or to provide an acceptable plan, within 30 days from the date of the notice, the City may remove or cause to be removed some or all of the abandoned facilities or accessory equipment without further notice and may charge the permittee for all costs incurred for such removal and storage, including all costs to restore the right-of-way and any penalties authorized by Chapter 104. Failure of the licensee or permittee to pay all such costs within 10 days from receipt of the City's demand for payment shall constitute grounds for the City to draw on the security established pursuant to § 106-24.
E.
If the City removes the abandoned telecommunications facilities and accessory equipment, the City shall notify the permittee of the removal. If the permittee does not remove the facilities and accessory equipment from the storage location and pay all removal costs, right-of-way restoration costs, and reasonable storage costs within 30 days of notification of removal, the facilities and accessory equipment shall become City property. The City Engineer may declare the facilities and accessory equipment as surplus property, and the City Purchasing Agent may dispose of the property pursuant to Code § 8A-17.
If ordered by the City Engineer to move or relocate its telecommunications facilities or accessory equipment in the right-of-way, the licensee or permittee shall relocate such facilities at its own expense, subject to the requirements of Chapter 104 and the rules and regulations.
A.
At all times during the term of any permit, license, master license
agreement or other right-of-way agreement ("ROW approvals") hereunder,
all licensees and/or permittees shall maintain insurance in the amounts
set forth below. Said insurance shall be issued by a reputable insurance
company authorized to do business in the State of New York. Said insurance
shall also name the City as an additional insured, and copies of the
policy endorsements reflecting the same must be provided to the Director
of Finance. The licensee and/or permittee shall provide the City with
a certificate of insurance from an authorized representative of a
financially responsible insurance company evidencing that such an
insurance policy is in force, including policy information and amounts
and a listing of any and all exclusions under said policy. The insurance
shall stipulate that, in the event of cancellation or modification,
the insurer shall provide the City with at least 30 days' written
notice of such cancellation or modification. In no event shall such
liability insurance exclude from coverage any municipal operations
or municipal property related to any license, permit or other right-of-way
agreement.
B.
Licensees and/or permittees shall maintain a comprehensive general
liability insurance policy with bodily injury limits of at least $5,000,000
per person, $5,000,000 per occurrence, and property damage limits
of at least $5,000,000 per occurrence. The policy must insure with
regard to liability for bodily injury, death and property damage,
as well as other claims and damages, and provide the following coverage:
comprehensive form, premises/operations, explosion and collapse hazard,
underground hazard, products/completed operations hazard, contractual
insurance, broad form property damage, independent contractors and
personal injury.
C.
Licensees and/or permittees shall maintain comprehensive automobile
liability insurance covering all motor vehicles owned or used by the
licensee or permittee for any right-of-way work, including but not
limited to maintenance, installation, repair, and restoration, with
bodily injury limits of at least $3,000,000 per person, $3,000,000
per occurrence, and property damage limits of at least $3,000,000
per occurrence.
D.
Licensees and/or permittees shall require all of their subcontractors
to keep insured, during the life of any right-of-way approval, all
employees of said subcontractors as are required to be insured under
the provisions of the Workers' Compensation Law of the State
of New York. In the event the licensee and/or permittee hires its
own employees to do any work authorized by the license, permit, or
right-of-way agreement, it shall insure its own employees. The licensee
and/or permittee shall provide proof to the City, duly subscribed
by an insurance carrier, that such workers' compensation and
disability benefits coverage has been secured. In the alternative,
a consultant shall provide proof of self-insurance or shall establish
that workers' compensation and/or disability benefits coverage
is not required by submitting a completed New York State Workers'
Compensation Board's form WC/DB-100.
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The licensee and/or permittee shall also provide and maintain
insurance to protect it from all claims under the Workers' Compensation
Law as required by the state on a scheduled basis. Proof that such
workers' compensation insurance has been secured and duly subscribed
by an insurance carrier shall be provided to the City in advance of
all work performed in the right-of-way or otherwise relevant to this
section.
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E.
The insurance hereby required shall include the City as an additional
insured, shall not exclude municipal employees, property or operations
and shall be maintained in full force and effect throughout the term
of the right-of-way approval. Modifications to the requirements of
this section may be authorized by the Director of Finance for good
cause demonstrated, so long as the welfare and interests of the City
are equally protected.
At all times during the term of any permit, license, master license agreement or other right-of-way agreement ("ROW approvals"), all licensees and/or permittees shall provide to the City, in a form acceptable to the City Director of Finance or the Corporation Counsel, security in the amount of $100,000 or such greater amount as determined by the City Director of Finance to be necessary to protect the interests of City in the event of the licensee or permittee's failure to comply with the requirements of this chapter, Chapter 104, the rules and regulations or ROW approvals, or based on the nature and extent of the telecommunications facilities being installed in the right-of-way. The City may draw upon the security as a result of any breaches or violations of this chapter, Chapter 104, the rules and regulations, permit conditions or the master license agreement, including in the event that the licensee and/or permittee fails to pay any fees, costs or compensation due and payable under the permit or master license agreement within 10 days of a demand for payment served by the City.
Licensees and permittees shall defend, indemnify and hold harmless
the City, its officers, employees, agents, boards and commissions
against any claims, lawsuits or proceedings, damages, penalties, or
costs whatsoever brought by a third party arising out of a permit
or master license agreement and any activities engaged in by the licensee
or permittee. This provision shall not require a licensee or permittee
to defend or indemnify the City from claims to the extent that they
are attributable to the gross negligence or intentional acts or omissions
of the City, its officers, employees, agents, boards and commissions.
A licensee or permittee shall have no recourse whatsoever against
the City or its officers, employees, agents, boards or commissions
for any loss, costs, expenses or damages arising out of any provision
or requirement of this chapter, or due to the good faith enforcement
of this chapter, the permit or master license agreement. This provision
shall not prevent a licensee or permittee from asserting any legal
right or pursuing any legal remedy it believes it possesses with regard
to this chapter.
A.
Each licensee and permittee shall maintain records, including as-built
drawings as described in more detail in the rules and regulations
and maps of the location of its own facilities and any facilities
it installs for the City's benefit in the right-of-way, and such
other records as the City Engineer may reasonably require to enable
the proper and efficient enforcement of the provisions of this chapter
and management of the right-of-way. Such records and maps shall be
filed with the City within 10 days of the completed work.
B.
The City's designated representatives shall have the right to inspect, examine, or audit, during normal business hours and upon reasonable notice to the licensee and/or permittee, all documents, records or other information which pertain to the facilities in the right-of-way pursuant to this chapter and Chapter 104.
C.
Each licensee or permittee, its agents, and outside contractors shall
make available for examination by the City or its authorized representative
or agent, within 30 days from such request, during normal business
hours, all documentation (i.e., books, records and accounts or other
documentation of the licensee or permittee hereinafter collectively
referred to as the "documents") in the format requested by the City
that, in the City's discretion, is necessary to determine the
accuracy of information concerning installed facilities and accessory
equipment. The licensee or permittee shall allow the City, or its
authorized representatives or agents, to make copies of the documents
as necessary. The City or its designated representative shall have
the right during the life of each license, permit, or master license
agreement, and for a period of three years from the expiration or
termination of any such agreement, to examine the documents. The City
agrees to keep any documents and reports confidential to the extent
allowed by law.
A.
No licensee, permittee, or any person acting on its behalf shall take any action or permit any action which may impair or damage any municipal facilities, the right-of-way, real or personal City property, or other property located in, on or adjacent thereto except in accordance with provisions of Chapter 104. Each licensee or permittee shall be responsible for the cost of service disruption and repairs of any such property as determined by the City.
B.
Unless directly and proximately caused by the willful, intentional
or malicious acts of the City, the City shall not be liable for any
damage to or loss of any telecommunications facility or accessory
equipment within the right-of-way as a result of or in connection
with any public works, public improvements, construction, excavation,
grading, filling, or work of any kind in the right-of-way by or on
behalf of the City.
The preferred location for small cell sites shall be on existing
municipal facilities, other existing poles or structures ("existing
infrastructure") or on replacement poles located in the same location
as existing infrastructure. If the facility is not able to be placed
on existing infrastructure, the applicant shall provide a map of all
existing infrastructure in the service area and describe why each
such site is not feasible.
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For the protection and management of the right-of-way, it is
the City's policy that no new poles or structures shall be installed
in the right-of-way unless approved by the City Engineer. The City
Engineer shall, in his/her sole discretion, approve new poles or structures
in the right-of-way only if the applicant establishes that:
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A.
There is no existing infrastructure that will enable the applicant
to provide its telecommunications services; and
B.
It is not possible to reconfigure or relocate its existing facilities,
or a combination of relocated existing facilities with existing infrastructure
that will enable the applicant to provide its telecommunications services;
and
C.
It is not possible for the applicant to secure required facilities
through co-location or purchasing or leasing of facilities from other
providers; and
D.
It is not possible to use alternative technologies, facilities or
equipment, including underground facilities, which do not require
the installation of new poles or structures in the right-of-way.
A.
All aerial fiber optic strand-mounted wireless and Wi-Fi equipment
installations shall comply with the requirements of this chapter.
B.
Equipment mounted on aerial fiber optic strands shall be of the smallest
possible volume.
C.
The applicant shall provide proof of authorization for the installation
from any non-City owners of the adjacent poles on each side of the
equipment.
D.
Only one installation shall be allowed between any two poles.
A.
A carrier on wheels (COW) or cellular on light truck (COLT) may be
placed in the right-of-way or on City-owned property upon issuance
of a permit.
(1)
The setup location requested for the COW or COLT will be reviewed,
and, at the discretion of the City Engineer or designee, may be modified
to ensure public health and safety.
(2)
The duration of a permit for a COW or COLT will be no longer than
is necessary to establish the network and provide the temporary coverage
required by the event or emergency.
(3)
At the discretion of the City Engineer or designee, the permit may
be revoked or modified when in the best interests of the City.
(4)
A permit will not be required for a COW or COLT when the installation
is for the primary purpose of disseminating news, recent events, and
other current, public affairs during a declared state of emergency.
Notification of such installation must be provided to the City Engineer
within a reasonable amount of time under the circumstances. Whether
installation of a COW or COLT meets the requirements of this subsection
is at the sole discretion of the City Engineer.
This chapter is not intended to be the exclusive means of regulating
the installation and operation of facilities in the right-of-way,
and nothing herein is intended to waive any other applicable City
requirements, including but not limited to building permit requirements,
stormwater runoff requirements, business license requirements, and
undergrounding regulations. The applicant or permittee must obtain
all permits, licenses, and similar authorizations that are required
by other governmental entities for the installation of its facilities.
The licensee or permittee must also achieve and remain in compliance
with all applicable statutes, ordinances, rules, regulations, orders,
and decisions issued by any federal, state or local governmental body
or agency, including without limitation those issued by the New York
Public Service Commission and the Federal Communications Commission.
To the maximum extent possible and as permitted by law, an applicant
shall design and schedule its work so as to coordinate with other
persons installing, constructing, or maintaining facilities in the
right-of-way and with the City as set forth in the rules and regulations.
A.
By granting a permit under the terms of this chapter, the City does
not waive any rights reserved to the City under any applicable law,
including but not limited to the City's right to regulate the
time, place, and manner of access to the City's right-of-way.
B.
Nothing in this chapter shall be construed as granting any right,
whether express or implied, to any licensee or permittee to place
a facility on City-owned property.
No licensee or permittee shall be excused from complying with
any of the provisions of this chapter, permit, or master license agreement
by any failure of the City to enforce compliance with any requirements
or provisions. Regardless of the City's failure to seek compliance
on any occasions, such action shall not be considered a waiver of
any kind.
If any provision of this chapter is declared invalid or unconstitutional
for any reason, the remaining provisions shall be severable and continue
in full force and effect.
If any application is deemed approved by operation of law, such
approval shall only be valid if the applicant has registered as required
by this chapter, submitted a completed application, and has complied
with this chapter in all other respects.
Any permit, license, addendum agreement, master license agreement
or other right-of-way agreement (collectively "ROW approvals") pre-dating
this chapter that reference a future telecommunications ordinance
or the requirement to enter into a franchise agreement are subject
to this chapter. A master license agreement under this chapter shall
be deemed as the equivalent of a franchise agreement solely with regard
to agreements in effect prior to the effective date this chapter.
Any installation, modification, or other work performed in the
right-of-way without complying with this chapter shall be subject
to removal and penalties as follows:
A.
For each offense, a penalty equivalent to twice the permit fee that
the City Engineer determines would have been required for the installation;
B.
For each day any equipment is not removed after being given notice
to do so, $100;
C.
For each day that a site remains in disrepair or is not returned
to its preexisting condition as directed by the City, $100;
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Any evidence of multiple, severe, repeated, or intentional violations
will result in denial of all pending applications and may result in
a revocation of the licensee's master license agreement and permits.
Should there be a revocation, the licensee can appeal consistent with
this chapter. The former licensee shall not be eligible to apply for
a new master license agreement with the City of Rochester for one
calendar year.
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Where deemed necessary by the City Engineer, the permittee shall
send written notice mailed or hand-delivered to all properties within
500 feet of the installation at least 20 days in advance of the installation
detailing the location of the installation, the time frame for construction,
and a photo simulation of the facility and equipment drawn to scale.
Contact information for an available agent of the licensee and/or
permittee must be included on the notice, and such agent must be reachable
during normal business hours. Any complaints, questions, and comments
shall be summarized by the agent and delivered to the City Engineer
within 24 hours of the contact.
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Permittees are strongly encouraged, especially for visible residential
right-of-way installations, to voluntarily schedule public meetings
to inform the neighborhood about the project. Public meetings shall
be a permit condition where the City Engineer determines such meetings
necessary.
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Whenever City property in the right-of-way requires replacement
to facilitate the installation of telecommunications facilities or
accessory equipment, the permittee shall replace such property with
property that meets or exceeds the quality, appearance and life span
of the existing property at no cost to the City, and the permittee
shall dedicate such property to the City upon replacement.
Where the City incurs costs, including but not limited to legal
fees, engineering costs, inspection expenses, and expert and consultant
fees, such costs shall be the full responsibility of the applicant,
licensee or permittee. The City shall submit an invoice for such costs
to the applicant, licensee, or permittee within 150 days of the work
performed. The City shall also have the right to receive prepayment
from the applicant or licensee for any services deemed essential by
the City Engineer.
