[HISTORY: Adopted by the Town Board of the
Town of Poughkeepsie 7-21-2004 by L.L. No. 11-2004. Amendments noted
where applicable.]
A.
The Town of Poughkeepsie ("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 a 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
FRANCHISE or FRANCHISE AGREEMENT
FRANCHISEE
GROSS REVENUE
(1)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(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 he authority of a franchise.
The poles, wires, cables, electrical conductors, conduits,
fiber-optic cables, subways, manholes, hand holes, 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.
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 with the Town through use of Town rights-of-way.
The franchise agreement shall describe in detail all requirements
applicable to the franchise.
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.
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 a 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
customers 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 of
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 § 185-4C 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 rights-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 exist 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 easements 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 systems 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 telecommunication system of the franchisee
or any affiliated person in accordance with applicable federal, state,
and local law. Telecommunications services shall not include "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 Poughkeepsie, Dutchess County, New York as now
incorporated and including any special districts or improvement areas
of the Town of Poughkeepsie 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 microtunneling
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 he/she 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 in 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 § 185-3B 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 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 he/she is 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 its 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 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 the franchisee's facilities;
[4]
A copy of any applicable pole or conduit agreement;
[5]
A copy of the franchisee's franchise agreement
or licensee's license; and
[6]
A performance bond modified to meet any changes
required by the Town.
(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, possesses 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 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 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, insofar 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 a 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)
A 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)
A 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 Yolk and the Town Code.
(d)
A 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 a franchisee intends to discontinue
use of its telecommunications systems, 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 a 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
(a)
All work, including all working conditions and
facilities, associated with the installation, construction, operation,
maintenance and repair of the telecommunications system shall comply
with:
[1]
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;
[2]
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
[3]
The National Electric Safety Code (NESC) and
the National Electric Code (NEC) then current.
(b)
The Town shall have the right to reasonable
inspections to ensure 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 Town Highway Superintendent, by the placement of adequate
barriers, fences, bordering or other protective devices 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
ensure 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. A franchisee's
telecommunications 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)
A 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)
A 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)
A 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)
A 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)
A 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 its 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)
A 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)
A 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 laws, 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)
A 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)
A franchisee shall obtain and maintain, at its sole
cost and expense, and file with the 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 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 local law, franchise agreement,
or license
(2)
In the event of assignment to any other third party
by a 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 local
law, 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 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 a 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 a 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 § 185-4C, compensation to the Town shall be calculated as set forth in § 185-13.
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.
[1]
Editor's Note: Pursuant to L.L. 13-2021, adopted 11-3-2021,
effective 1-1-2022, all fees will be in a Fee Schedule maintained
in the Town offices, which fees may be amended from time to time by
resolution.
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 a 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, a 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.
[1]
Editor's Note: Pursuant to L.L. 13-2021, adopted 11-3-2021,
effective 1-1-2022, all fees will be in a Fee Schedule maintained
in the Town offices, which fees may be amended from time to time by
resolution.
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 a franchisee
to be in violation of this chapter or its 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, the foreclosure
shall only be to 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 a person found in violation. 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.
Sanctions.
(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 hereto;
(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.
Additional
remedies.
[Amended 6-3-2009 by L.L. No. 22-2009]
(1)
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.
(2)
In
addition to any other remedies set forth herein authorizing the Town
to enforce the provisions of this chapter, establishing penalties,
and setting forth additional remedies, the person charged with the
responsibility to enforce the provisions of this chapter may impose
a civil fine or agree to a civil fine not to exceed $1,000 per day
for each day of the violation. If said civil fine is imposed, then
the alleged violator may appeal to the Town Board.
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, 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 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.
(5)
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.