[HISTORY: Adopted by the Town Board of the Town of LaGrange 11-28-2001
by L.L. No. 11-2001 (Ch. 79 of the 1975 Code). Amendments noted where applicable.]
A.
The Town of LaGrange ("the Town") has the authority to
grant franchises and/or licenses for the use and occupancy of public rights-of-way.
The Town has determined that these rights-of-way are valuable public resources
that have required, and will continue to require, prudent management by the
Town.
B.
The Town finds that the enactment of a Telecommunications
and Public Rights-of Way Management Law will have a beneficial impact on all
citizens of the Town. Competition among telecommunications providers is increasing
due to advancements in technology, changes in federal and state law and increased
demand for such services from Town residents, businesses, educational institutions,
governmental offices and other public and private institutions. Many telecommunications
providers must utilize public rights-of-way in order to operate and would
otherwise be required to invest substantial capital and incur substantial
expense. The Town further finds that the public convenience, safety and general
welfare can best be served by establishing regulatory powers and procedures
to protect public rights-of-way, ensure the orderly development of a telecommunications
infrastructure which effectively serves the current and future needs of the
Town, while at the same time not erecting barriers which prohibit or effectively
prohibit entry by, or competition among, telecommunications providers operating
within the Town.
C.
The Town desires to structure and implement a fair and
orderly process for the granting and renewal of franchises and/or licenses
to occupy and use public rights-of-way and to provide telecommunications services
in the Town, including the negotiation of terms and conditions to protect
the public interest consistent with applicable law. Consistent with applicable
law, the Town desires to recover the Town's costs of maintaining and managing
the public rights-of-way, to obtain fair and reasonable compensation from
telecommunications providers for the use of Town rights-of-way, and to manage
its public rights-of-way on a competitively neutral and nondiscriminatory
basis.
D.
The Town desires to minimize inconvenience and disruption
to the public, to provide for the orderly and efficient use of its public
rights-of-way now and in the future, and to preserve adequate capacity for
existing and future uses of its public rights-of-way. The Town intends to
exercise, to the fullest extent permitted by applicable law, its authority
with respect to the regulation of the occupation and use of its public rights-of-way
by telecommunications providers.
E.
The Town Board has determined that the procedures set
forth in this chapter for granting franchises and/or licenses for the installation,
construction, operation and maintenance of telecommunications systems in the
Town promote the public interest and enhance the public health, safety and
welfare by assuring that:
(1)
Telecommunications systems are responsive to the needs
and interests of the Town and its residents;
(2)
Telecommunications systems provide, and are encouraged
to provide, the widest diversity of information and service to the citizens,
government and public and private institutions, organizations and enterprises
located in the Town; and
(3)
That 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
the 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 within 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 customer upon customer
premises;
All revenues from local service;
All revenues from charges for access to local and long distance networks;
and
All other revenues collected by franchisee from business pursued within
the Town; and
Any access or other payments received by the franchisee or any affiliated
person from interexchange carriers, connecting carriers, and others in connection
with any service originating in the Town regardless of the destination of
such service; and
Revenues received from the lease, exchange, rental or use of any facilities,
capacity, plant, conduit space or equipment of the telecommunications system;
and
The value of any free services provided by the franchisee (provided,
however, that the value of the free service provided hereunder to the Town
or to any other governmental entity shall not constitute gross revenue); and
The fair market value of any nonmonetary transactions between the franchisee
and any person other than an affiliated person at not less than the customary
prices paid in connection with equivalent transactions between the franchisee
and any affiliated person and not less than the customary prices paid in connection
with equivalent transactions conducted with persons who are not affiliated
persons; and
Recoveries of bad debts previously written off and revenues from the
sale or assignment of bad debts. Unrecovered bad debts charged off after diligent,
unsuccessful efforts to collect are excludable from gross revenues. All revenues
from penalties or charges to customers from checks returned from banks, net
of bank costs paid, shall also be gross revenue.
An initial authorization or renewal thereof, issued by the Town in accordance with the provisions of this chapter, which authorizes the limited occupation and use of specifically identified rights-of-way, provided that a license shall be issued only in the limited circumstances set forth in § 217-4C of this chapter.
A holder of a license granted pursuant to this chapter. For the purposes
of this chapter, the term "franchisee" shall include any licensee holding
a license granted pursuant to this chapter.
A telecommunications facility consisting of a set of transmission
paths and associated signal generation, reception, and control equipment that
is designed to provide cable service, which includes video programming, which
is provided to multiple subscribers within a community, and which the Federal
Communications Commission or its successor has certified as compliant with
Part 76 of the Rules of the Federal Communications Commission, 47 CFR, Part
76, as amended from time to time.
Any individual or any association, firm, partnership, joint venture,
corporation or other legally recognized entity, whether for profit or not
for profit, but not the Town.
The surface of, and the space above and below, any public street,
highway, freeway, bridge, land path, lane, concourse, tunnel, waterway, public
grounds or waters, alley, court, boulevard, sidewalk, parkway, way, lane,
public way, drive, circle, or other public right-of-way, including, but not
limited to, public utility easements, dedicated utility strips or right-of-way
dedicated for compatible uses, any other public property or place belonging
to the Town or any special districts of the Town as the same now exists or
may hereafter be extended or altered, and any temporary or permanent fixtures
or improvements located thereon now or hereafter held by the Town which shall
entitle the Town and franchisee to the use thereof for the purpose of installing,
operating, repairing, and maintaining the system. "Public rights-of-way" shall
also mean any easement now or hereafter held by the Town for the purpose of
public travel, or for utility or public service use dedicated for compatible
uses, and shall include other easements or public rights-of -way as shall
within their proper use and meaning entitle the Town and franchisee to the
use thereof for the purposes of installing or transmitting the franchisee's
telecommunications services over poles, wires, cables conductors, ducts, conduits,
vaults, manholes, amplifiers, appliances, attachments, and other property
as may be ordinarily necessary and pertinent to the system.
All transmissions of voice or electronic data, between or among points
specified by the user, of information of the user's choosing without change
in the form or content of the information as sent and received.
Any applicant who owns, leases, installs, constructs, operates or
maintains equipment in the Town rights-of-way used to provide telecommunications
services regardless of whether such telecommunications system originates,
terminates, or merely passes through the Town.
The offering of telecommunications for hire to the public, or to
such classes of users as to be effectively available to the public, by means
of the telecommunications system of the franchisee or any affiliated person
in accordance with applicable federal, state, and local law. Telecommunications
services shall not include Title VI "cable service," as defined in 47 U.S.C.
§ 522(6), and service as an open video system provider pursuant
to 47 U.S.C. § 573.
A telecommunications provider's system of cables, wires, lines, towers,
amplifiers, antennas, wave guides, optical fibers, microwaves, laser beams,
any associated converters, and all other electronic devices. Equipment, real
property (including interests in real property), tangible and intangible personal
property, customer lists or buildings, offices, plants and facilities designed
and constructed for the purpose of producing, receiving, amplifying or distributing
telecommunications to provide telecommunications services. This definition
shall be limited to systems providing audio, video, data, voice and signaling
communications services.
The Town of LaGrange, Dutchess County, New York as now incorporated
and including any special districts or improvement areas of the Town of LaGrange
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 they install, construct, operate
or maintain equipment in the rights-of-way to provide telecommunications services
to customers or in connection with the internal operations of such person's
business, residence or employment without a franchise and/or license granted
by the Town.
C.
A franchise and/or a license granted in accordance with
the provisions of this chapter shall not be construed to grant any rights
or authorization to provide cable services in the Town, and any person seeking
to provide cable services in the Town shall first obtain a separate franchise
or license in accordance with applicable law. A franchisee shall not allow
any other person to use its telecommunications system to provide cable services
unless such person has been granted a franchise to provide cable services
by the Town.
D.
A telecommunications provider may not provide open video
services or operate an open video system within the Town unless such provider
has first obtained a separate open video franchise from the Town.
E.
The Town Board reserves the right to modify any provision
of this chapter by amendment hereof.
F.
The granting of any franchise and/or license shall be
made by adoption of a separate resolution by the Town Board and shall be on
such terms and conditions as may be specified in the separate resolution and/or
in the franchise and/or license agreement between the Town and the franchisee.
G.
Any franchise and/or license granted shall be nonexclusive.
The Town specifically reserves the right to grant, at any time, such additional
franchises, licenses, or other authorizations for use of the public rights-of-way
as the Town deems appropriate.
H.
A franchise and/or license may be granted for all or
any defined portion of the Town.
I.
No license or franchise shall stop or otherwise limit
the Town in the full exercise of its governmental powers to protect the health
and safety of the public, and all other governmental powers may be fully exercised
except as expressly provided herein.
A.
It shall be the responsibility of each franchisee to
comply with all applicable laws, ordinances, resolutions, rules, regulations
and other directives of the Town and any federal, state or local governmental
authority having jurisdiction.
B.
In addition, all use of the public rights-of-way shall
conform to all federal, state or local highway and drainage laws. Any repair
to, or replacement of, any part of the Town infrastructure must be done in
accordance with the applicable Town standards or specifications. To minimize
the impact on the Town infrastructure, trenchless technology shall be the
preferred method of installation.
C.
A license is required for those applicants who wish to
utilize certain public rights-of-way to install, construct, operate, or maintain
their telecommunications system within the Town solely for the purpose of
transitting the Town and without generating income from sources within the
Town; or when the use or occupation of such public rights-of-way is for or
in connection with the internal operations of the applicant's business, residence
or employment and not for, or in connection with, the provision or offering
of telecommunications services for sale or resale to any person.
D.
Those applicants who wish to use the public rights-of-way
and will be providing telecommunications services within the Town shall be
required to obtain a franchise with the Town for such use.
A.
No permits or other authorizations for the activities identified in § 217-3B 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. 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 applicant, on account with
the Town, from which the Town may make payments to such consultants for services
rendered, after approval of consultants' vouchers by the Town Board.
If an application is complete and otherwise complies with applicable
law, ordinances, resolutions, rules, regulations and other directives of the
Town, including the provisions of this chapter, the Town may enter into negotiations
with the applicant to determine whether they are able to reach agreement on
the terms of the proposed franchise or license. The reaching of a proposed
agreement shall be a condition precedent to final action by the Town Board
on the application.
A.
Prior to final approval, the applicant shall provide
a faithful performance bond, secured by a letter of credit, cash deposit or
equivalent acceptable to the Town, for the Town to cover the cost associated
with the restoration of the public rights-of-way and affected Town utilities.
B.
Prior to the issuance of a franchise or license, the
Town Board shall hold a public hearing, on at least seven days' notice to
the public, at which the applicant and its application shall be examined and
the public and all interested parties afforded a reasonable opportunity to
be heard.
C.
Consistent with applicable law, upon completion of the
steps deemed appropriate by the Town Board, the Town Board may grant or deny
the franchise or license, and may specify the conditions under which the franchise
or license is granted. The grant of a license or franchise shall be conditioned
on the signing of a franchise agreement.
A.
Construction/relocation requirements.
(1)
Preconstruction requirements.
(a)
After a complete application has been submitted to the
Town by the applicant and the franchise or license has been granted, the application
with an attached complete set of preliminary plans and specifications shall
be delivered by 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. Franchisee shall also provide an engineer's estimate of cost
of their proposed project to the Town Highway Department. This department
shall then forward comments to the franchisee. The franchisee shall then address
the Town's comments, or if franchisee disagrees with such comments, 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, franchisee or licensee shall provide the Town Highway Superintendent
with:
[1]
A construction time estimate sheet;
[2]
Four copies of the final plans and specifications;
[3]
A copy of any agreements with private parties for use
of their lands for franchisee's facilities;
[4]
A copy of any applicable pole or conduit agreement;
[5]
A copy of 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. 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. 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 franchisee's telecommunications system.
(3)
Provision of maps.
(a)
Within 30 days after franchisee's construction in the
public rights-of-way is completed, 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. It requested by the Town, 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, 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 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 above-ground facilities.
Franchisee shall make all efforts to comply with the Town's policies and regulations
in this regard.
(b)
Prior to doing underground work, franchisee must apply
for, and obtain, appropriate permits from the Town. Franchisee may not make
excavations in the public rights-of-way for any facilities needed for the
installation, construction, repair and maintenance of 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. 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 franchisee's
telecommunications system requiring access to the underground facilities.
(5)
Emergency repairs. In the event that emergency repairs
are necessary, franchisee shall immediately notify the Town Highway Superintendent
of the need for such repairs. 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. Franchisee must comply with
all laws and provisions relating to such emergency excavations or construction,
including the payment of permit fees. Failure by 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 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 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. 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
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 franchisee. The Town shall provide the franchisee with written notification
requesting such relocation. Should 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 franchisee,
including all costs and expenses incurred by the Town due to 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
franchisee with an alternate location for its facilities within public rights-of-way.
(8)
Restoration of rights-of-way. Whenever franchisee disturbs
or excavates the surface of any public right-of-way or opens the hard surface
pavement in any street for any purpose, 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 franchisee, refill and/or repave any
opening made by franchisee in the public rights-of-way and the expense thereof
shall be paid by franchisee. The Town reserves the right, after providing
notice to franchisee, to remove and/or repair any work done by 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.
Franchisee shall properly safeguard all excavations made by 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 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 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 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. 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, in so far as practicable,
so as not to hinder or prevent the unrestricted use and operation of the telecommunications
system by a franchisee. If any telecommunications system interferes with the
construction or repair of any public right-of-way or public improvement, including
construction, repair or removal of a sewer and/or water main and any other
public work or improvement, the applicable franchisee's equipment shall be
removed or replaced at 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 franchisee. Should franchisee fail to remove, adjust
or relocate its facilities by the date established by the Highway Superintendent's
written notice to franchisee, the Town may cause and/or effect such removal,
adjustment or relocation, and the expense thereof shall be paid by franchisee,
including all costs and expenses incurred by the Town due to franchisee's
delay.
(12)
Public rights-of-way vacation. If any public rights-of-way
or portion thereof used by 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, 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 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 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
franchisee to identify alternate locations within public rights-of-way.
(13)
Maintenance of facilities.
(a)
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. 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)
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)
Franchisee's facilities shall be installed, constructed,
operated, maintained, used and repaired in such a manner as to provide for
the safety of persons and property, and not interfere with the free passage
of traffic, all in accordance with the laws of the State of New York and the
Town Code.
(d)
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 franchisee intends to discontinue use of its
telecommunications system, by either expiration, abandonment, failure to renew
or default under this chapter, its franchise agreement or license within all
or part of a particular portion of the rights-of-way, and does not intend
to use said facilities again in the future, 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. Franchisee may remove the facility or request that the Town
permit it to remain in place.
(b)
If 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 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. Franchisee shall complete such removal or modification
in accordance with a schedule set by the Town.
(d)
Until such time as 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, 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 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 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 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 insure such compliance.
(17)
Construction on private property. Where the telecommunications
system runs along private property with the permission of the owner thereof,
it shall comply with all applicable rules and regulations. The franchisee
shall provide notice to property owners and tenants of the property prior
to the permitted construction on such private property, even in the event
that 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. Franchisee
shall indemnify the Town with respect to any claim in connection herewith,
unless caused by the Town's negligent acts, and franchisee shall provide insurance
therefor.
(19)
Company identification. The franchisee shall insure that
all of its vehicles and employees are clearly identified to the general public
as being associated with franchisee when engaged in construction, maintenance
or service of the telecommunications system within the Town.
(20)
Condition of Town rights-of-way. Franchisee's telecommunications
system shall be neat and sightly and shall not unnecessarily interfere with
the use of public rights-of-way. 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 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. 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 or
such public rights-of-way and public places.
(b)
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 franchisee's customers for any interference with, or disruption in,
the operation of franchisee's telecommunications system, or for any damages
arising out of franchisee's use of the public rights-of-way, unless caused
by the Town's negligent acts.
B.
Records/reports required.
(1)
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 franchisee's telecommunications
system.
(2)
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, 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 franchisee
examined by a representative of the Town to ascertain the correctness of the
reports agreed to be filed herein.
(4)
Franchisee shall keep on file with the Town Clerk a current
list of officers with current addresses. 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)
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 franchisee or licensee pertaining to their respective agreements. The Town
may make inquiries pertaining to franchisee's operation of the telecommunications
system within the Town, and franchisee shall respond to such inquiries in
a timely matter.
(6)
If requested by the Town, 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)
Franchisee acknowledges that information submitted to
the Town is open to public inspection under the New York State Freedom of
Information Law ("FOIL").[1] Franchisee is responsible for becoming familiar and understanding
the provisions of FOIL. Franchisee may identify information, such as trade
secrets, financial records, customer information or technical information,
submitted to the Town as confidential under FOIL. 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.
[1]
Editor's Note: See Public Officers Law § 84 et seq.
(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. 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)
Franchisee shall obtain and maintain in full force and
effect throughout the term of the respective agreements and any extensions
or renewals thereof, insurance with an insurance company licensed to do business
in the State of New York. Said insurance shall protect the franchisee and
the Town from any claims which may arise directly or indirectly or result
from its granting of a franchise agreement or license, including but not limited
to activity associated with the placement or maintenance of the franchisee's
telecommunications system, whether such operations are performed by the franchisee,
or by anyone for whose acts the franchisee may be liable.
(2)
The Town reserves the right to review these insurance
requirements during the effective period of the franchise agreement or license
and any extension or renewal thereof, and to adjust insurance coverage and
limits when deemed necessary and prudent by the Town Attorney, based upon
changes in statutory law, court decisions, or the claims history of the industry
or the franchisee.
(3)
The insurance to be maintained by the franchisee shall
include, but shall not be limited to, the following:
(a)
Workers' compensation and employees liability insurance
supplied in statutory amounts providing protection for 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)
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 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
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 franchisee.
D.
Bonds.
(1)
Franchisee shall obtain and maintain, at its sole cost
and expense, and file with the Town Attorney, a corporate surety bond which
shall be renewable annually or multiyear, with a surety company authorized
to do business in the State of New York and acceptable to the Town Attorney,
in the amount of 50% of the projected total project cost to secure 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. 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
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 franchisee 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 franchisee; or pursuant to any financing, merger
or reorganization of franchisee, provided that 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 franchisee from liability or responsibility for the performance
of franchisee's obligations under the local law, franchise agreement, or license.
(2)
In the event of assignment to any other third party by
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. 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 finished with reasonable proof thereof;
(c)
The proposed assignee or transferee is of sound financial
condition as reasonably determined by the Town given the obligations to be
assumed by the proposed assignee or transferee; and
(d)
The proposed assignee or transferee agrees to enter into
an agreement approved by the Town, under which it assumes the obligations
under the franchise agreement or license.
F.
Remaining terms and conditions.
(1)
Neither a franchise nor a license shall create a vested
right in a franchisee to occupy a particular location or particular locations
in the public rights-of-way.
(2)
The remaining terms and conditions applicable to any
franchise or license granted pursuant to this chapter shall be set forth in
the separate resolution granting the franchise or license and/or in the franchise
agreement or the license itself.
(3)
A franchise or license granted pursuant to this chapter
shall be for a period of ten 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 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 franchisee of the use of public rights-of-way is a valuable property right without which 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 § 217-4C, compensation to the Town shall be calculated as set forth in § 217-13.
B.
The annual gross revenue based fee is equal to 5% of
franchisee's gross revenues, as defined in this chapter. The minimum annual
franchise fee is the greater of $5,000 or the amount paid to the Town as compensation
for the prior year. The payment of these fees shall in no way be construed
to be the payment of real estate taxes or permit and application fees to the
Town nor shall such franchise fee constitute a deduction from the gross revenues
for the purposes of computing the amount of franchise fee due. Interest at
10% per annum will be payable on late payments.
The public rights-of-way are valuable public properties, acquired and
maintained by the Town at great expense to its taxpayers, and the grant to
licensee of the use of the public rights-of-way is a valuable property right
without which licensee would be required to invest substantial capital in
rights-of-way costs and acquisitions. Therefore, 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 licensee's telecommunications
system in the public rights-of-way. The total number of linear feet of licensee's
telecommunications system located in the public rights-of-way shall be determined
by the as-built maps submitted by the licensee and approved by the Town Highway
Department. Interest at 10% per annum will be payable on late payments.
If any section, subsection, sentence, clause, phrase or other portion
of this chapter is, for any reason, declared invalid, in whole or in part,
by any court, agency, commission, legislative body or other authority of competent
jurisdiction, such portion shall be deemed a separate, distinct and independent
portion. Such declaration shall not affect the validity of the remaining portions
hereof, which other portions shall continue in full force and effect.
The Town Board shall have the right to delegate and redelegate, and
to revoke any such delegation or redelegation, from time to time, of any of
its rights or obligations under this chapter to any body, organization or
official of the Town. Any such delegation, redelegation or revocation, no
matter how often made, shall not be deemed an amendment to this chapter or
to require the consent of any applicant for a franchise or license.
To the extent permitted by law, the Town shall apply all provisions
of this chapter to telecommunications providers, franchisees, licensees or
other rights-of-way authorizations existing on the effective date of this
chapter.
A.
Failure to comply with the requirements of this chapter
shall constitute a violation. Should the Town determine franchisee to be in
violation of this chapter or their respective agreements, the Town may foreclose
on all or any part of any security provided for under this chapter or in the
respective agreements, including, without limitation, any bonds or other surety;
provided however, the foreclosure shall only be in such a manner and in such
an amount as the Town reasonably determines is necessary to remedy the default
and provided that the Town shall not make any withdrawals by reason of any
violation for which the franchisee or licensee has not been given notice.
A person who is found to be in violation of this chapter shall thereafter
be made to comply with all applicable requirements and shall be required to
submit all paperwork and pay all required fees.
B.
Failure to obtain the necessary approvals shall additionally
result in late charges for the time period in which the violator did not have
approval plus the actual costs incurred by the Town in enforcing this chapter
against 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, licensees or franchises.
C.
In the event that a permit in furtherance of a franchise
has been issued to a franchisee by the Town, franchisee's failure to comply
with the requirements set forth by law and all standards required by the Town
may additionally result 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 franchisee:
(a)
Defaults in the performance of any of its material obligations
under its franchise or license, this chapter, or under such documents, contracts
and other terms and provisions entered into by and between the Town and the
franchisee or licensee;
(b)
Fails to provide or maintain in full force and effect,
the liability and indemnification coverage as required herein;
(c)
Frequently and materially violates any orders or rulings
of any regulatory body having jurisdiction over the franchisee or licensee
relative to this franchise or license unless such orders or rulings are being
contested by the franchisee in a court of competent jurisdiction;
(d)
Fails to receive necessary FCC approvals within the applicable
and appropriate time;
(e)
Attempts to evade any of the provisions of this chapter
or its franchise or license agreement or practices any fraud or deceit upon
the Town.
(2)
A franchisee shall not be declared at fault or be subject
to any sanction under any provision of its franchise or this chapter in any
case in which performance of any such provision is prevented for reasons beyond
the franchisee's control.
E.
Any person who knowingly violates any prohibition in
this chapter shall be guilty of a violation of this chapter and upon conviction
thereof shall be fined the amount of $500 per day for each day that such violation
is proven to have occurred or continued.
F.
In addition to any other remedies hereunder, the Town
may seek an injunction or other judicial relief to mitigate or terminate a
violation, or employ any other remedy available at law or equity.
G.
Revocation, reduction of term and forfeiture of facilities.
(1)
In the event that the Town believes that a franchisee
or licensee has not complied with the terms of its license or franchise, the
Town shall notify the franchisee in writing of the exact nature of the alleged
noncompliance.
(2)
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 thirty 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
effecting 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.
