[HISTORY: Adopted by the Board of Trustees of the Village of Great
Neck Plaza 2-16-2000 by L.L. No. 4-2000.
Amendments noted where applicable.]
The purpose and intent of this chapter is to:
A.
Establish a local policy concerning telecommunications
providers and services.
B.
Establish clear local guidelines, standards and time
frames for the exercise of local authority with respect to the regulation
of telecommunications providers and services.
C.
Promote competition in telecommunications.
D.
Minimize unnecessary local regulation of telecommunica-tions
providers and services.
E.
Encourage the provision of advanced and competitive telecommunications
services on the widest possible basis to the businesses, institutions and
residents of the Village.
F.
Permit and manage reasonable access to the public ways
of the Village for telecommunications purposes on a competitively neutral
basis.
G.
Conserve the limited physical capacity of the public
ways held in public trust by the Village.
H.
Assure that the Village's current and ongoing costs
of granting and regulating private access to and use of the public ways are
fully paid by the persons seeking such access and causing such costs.
I.
Secure fair and reasonable compensation to the Village
and the residents of the Village for permitting private use of the public
ways.
J.
Assure that all telecommunications carriers providing
facilities or services within the Village comply with the laws, rules and
regulations of the Village.
K.
Assure that the Village can continue to fairly and responsibly
protect the public health, safety and welfare.
L.
Enable the Village to discharge its public trust consistent
with rapidly evolving federal and state regulatory policies, industry competition
and technological development.
For the purpose of this chapter, and the interpretation and enforcement
thereof, the following words and phrases shall have the following meanings,
unless the context of the sentence in which they are used shall indicate otherwise:
A person that (directly or indirectly) owns or controls, is owned
or controlled by, or is under common ownership or control with another person.
The Cable Communications Policy Act of 1984, 47 U.S.C. §§ 532
et seq., as now and hereafter amended, and the Telecommunications Act of 1996.
A telecommunications carrier providing or offering to provide cable
service within the Village as that term is defined in the Cable Act.
Has the same meaning provided by the Cable Act.
The Mayor and Board of Trustees of the Village. Notwithstanding the
foregoing, the Village may, where permitted by law, delegate to another person
or entity, including an entity established by the Village in cooperation with
one or more other municipalities, some or all of the authority vested in the
Village as to one or more subjects which are encompassed by this chapter.
The volume or capacity in any existing or future duct, conduit, manhole,
handhole or other utility facility within the public way that is or will be
available for use for additional telecommunica-tions facilities.
The federal administrative agency, or lawful successor, authorized
to regulate and oversee telecommunications carriers, services and providers
on a national level.
The highways, streets, alleys, utility easements or other rights-of-way
within the Village, but under the jurisdiction and control of a governmental
entity other than the Village.
Utility poles, utility facilities and telecommunications facilities
located above the surface of the ground, including the underground supports
and foundations for such facilities.
Includes corporations, companies, associations, joint-stock companies
or associations, firms, partnerships, limited liability companies and individuals
and includes their lessors, trustees and receivers.
The New York State Public Service Commission, or any lawful successor
state administrative agency authorized to regulate and oversee telecommunications
carriers, services and providers in the State of New York.
Any highway, street, alley or other public right-of-way for motor
vehicle travel under the jurisdiction and control of the Village which has
been acquired, established, dedicated or devoted to highway purposes not inconsistent
with telecommunications facilities.
Includes all public streets and utility easements, as those terms
are defined herein, now or hereafter owned by the Village, but only to the
extent of the Village's right, title, interest or authority to grant
a license or franchise to occupy and use such streets and easements for telecommunications
facilities.
The State of New York.
That portion of the usable space on a utility pole which has the
necessary clearance from other pole users, as required by the orders and regulations
of the New York Public Service Commission, to allow its use by a telecommunications
carrier for a pole attachment.
Includes every person that directly or indirectly owns, controls,
operates or manages plant, equipment or property within the Village, used
or to be used for the purpose of offering telecommunications service.
The plant, equipment and property, including but not limited to,
cables, wires, conduits, ducts, pedestals, antennas, electronics and other
appurtenances used or to be used to transmit, receive, distribute, provide
or offer telecommunications services.
Includes every person who provides telecommunications service over
telecommunications facilities without any ownership or management control
of the facilities.
The providing or offering for rent, sale or lease, or in exchange
for other value received, of the transmittal of voice, data, image, graphic
and video programming information between or among points by wire, cable,
fiber optics, laser, microwave, radio, satellite or similar facilities, with
or without benefit of any closed transmission medium.
See "telecommunications facilities."
Utility and telecommunications facilities located under the surface
of the ground, excluding the underground foundations or supports for overhead
facilities.
The total distance between the top of a utility pole and the lowest
possible attachment point that provides the minimum allowable vertical clearance
as specified in the orders, rules and regulations of the New York Public Service
Commission.
Any easement owned by the Village and acquired, established, dedicated
or devoted for public utility purposes not inconsistent with telecommunications
facilities.
The plant, equipment and property, including but not limited to the
poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located
under, on or above the surface of the ground within the public ways of the
Village and used or to be used for the purpose of providing utility or telecommunications
services.
The Village of Great Neck Plaza.
Includes all real property owned by the Village, other than public
streets and utility easements as those terms are defined herein, and all property
held in a proprietary capacity by the Village, which are not subject to right-of-way
licensing and franchising as provided in this chapter.
Except as otherwise provided herein all telecommunications carriers
and providers engaged in the business of transmitting, supplying or furnishing
of telecommunications services originating or terminating in the Village shall
register with the Village pursuant to Article II of this chapter. This requirement
for registration shall not apply with respect to any activities which, by
reason of applicable federal or state law, are not subject to regulation by
the Village or are not subject to the jurisdiction of the Village.
Except as otherwise provided herein, no telecommunications carrier shall
construct, install, operate, maintain or otherwise locate telecommunications
facilities in, under, over or across any public way of the Village for the
purpose of providing telecommunications service solely to persons and areas
outside the Village, without first obtaining a license from the Village pursuant
to Article III of this chapter. This section shall not be applicable to such
activities of any telecommunications carrier for which, by reason of applicable
federal or state law, no license is required from the Village.
Except as otherwise provided herein, any telecommunications carriers
who desire to construct, install, operate, maintain or otherwise locate telecommunications
facilities in, under, over or across any public way of the Village, and to
also provide telecommunications service to persons or areas in the Village,
shall first obtain a franchise granting the use of such public ways from the
Village pursuant to Article IV of this chapter. This section shall not be
applicable to the activities of any telecommunications carrier for which,
by reason of applicable federal or state law, no franchise is required from
the Village.
Except as otherwise provided herein, any telecommunications carrier
who desires to construct, install, operate, maintain or locate telecommunications
facilities in any public way of the Village for the purpose of providing cable
television service to persons in the Village shall first obtain a cable franchise
from the Village as provided in Article V of this chapter.
This chapter shall not be applicable to any telecommunications service
for which a franchise or license from the Village is in effect at the effective
date of this chapter, until:
Any person found guilty of violating, disobeying, omitting, neglecting
or refusing to comply with any of the provisions of this chapter shall be
fined not less than $100 nor more than $250 for each offense. A separate and
distinct offense shall be deemed committed each day on which a violation occurs
or continues.
Nothing in this chapter shall be construed as limiting any other remedies
that the Village may have, at law or in equity, for enforcement of this chapter.
Carriers and Providers
Each telecommunications carrier and provider which offers or provides
any telecommunications service for a fee directly to the public, either within
the Village, or outside the corporate limits from telecommunications facilities
within the Village, shall register with the Village on forms to be provided
by the Village Clerk, which shall include the following:
A.
The identity and legal status of the registrant, including
any affiliates.
B.
The name, address and telephone number of the officer,
agent or employee responsible for the accuracy of the registration statement.
C.
A description of the registrant's existing or proposed
telecommunications facilities within the Village.
D.
A description of the telecommunications service that
the registrant intends to offer or provide, or is currently offering or providing,
to persons, firms, businesses or institutions within the Village.
E.
Information sufficient to determine whether the registrant
is subject to public way licensing or franchising under this chapter.
F.
Information sufficient to determine whether the transmission,
origination or receipt of the telecommunications services provided or to be
provided by the registrant constitutes an occupation or privilege subject
to any municipal telecommunications tax, utility receipts tax or other occupation
tax imposed by the Village.
G.
Information sufficient to determine that the applicant
has applied for and received any certificate of authority required by the
New York State Public Service Commission to provide telecommunications services
or facilities within the Village.
H.
Information sufficient to determine that the applicant
has applied for and received any construction permit, operating license or
other approvals required by the Federal Communications Commission to provide
telecommunications services or facilities within the Village.
I.
Such other information as the Village Clerk may reasonably
require.
Each application for registration as a telecommunications carrier or
provider shall be accompanied by a fee in an amount established from time
to time by resolution of the Board of Trustees.
The purpose of registration under this Article II is to:
A.
Provide the Village with accurate and current information
concerning the telecommunications carriers and providers that offer or provide
telecommunications services within the Village, or that own or operate telecommunications
facilities within the Village.
B.
Assist the Village in enforcement of this chapter.
C.
Assist the Village in the collection and enforcement
of any municipal taxes, franchise fees, license fees or charges that may be
due the Village.
D.
Assist the Village in monitoring compliance with local,
state and federal laws.
A telecommunications license shall be required of any telecommunications
carrier who desires to occupy specific public ways of the Village for the
sole purpose of providing telecommunications services to persons or areas
outside the Village.
An application for a telecommunications license shall include the following
information:
A.
The identity of the license applicant, including all
affiliates of the applicant.
B.
A description of the telecommunications services that
are or will be offered or provided by licensee over its telecommu-nications
facilities.
C.
A description of the transmission medium that will be
used by the licensee to offer or provide such telecommunications services.
D.
Preliminary engineering plans, specifications and a network
map of the facilities to be located within the Village, all in sufficient
detail to identify:
(1)
The location and route requested for the applicant's
proposed telecommunications facilities.
(2)
The location of all overhead and underground public utility,
telecommunications, cable, water, sewer drainage and other facilities in the
public way along the proposed route.
(3)
The location(s), if any, for interconnection with the
telecommunications facilities of other telecommunications carriers.
(4)
The specific trees, structures, improvements, facilities
and obstructions, if any, that the applicant proposes to temporarily or permanently
remove or relocate.
E.
If the applicant is proposing to install overhead facilities,
evidence that surplus space is available for locating its telecommunications
facilities on existing utility poles along the proposed route.
F.
If the applicant is proposing an underground installation
in existing ducts or conduits within the public ways, information in sufficient
detail to identify:
G.
If the applicant is proposing an underground installation
within new ducts or conduits to be constructed within the public ways:
H.
A preliminary construction schedule and completion date.
I.
A preliminary traffic control plan.
J.
Financial statements prepared in accordance with generally
accepted accounting principles demonstrating the applicant's financial
ability to construct, operate, maintain, relocate and remove the facilities.
K.
Information in sufficient detail to establish the applicant's
technical qualifications, experience and expertise regarding the telecommunications
facilities and services described in the application.
L.
Information to establish that the applicant has obtained
all other governmental approvals and permits to construct and operate the
facilities and to offer or provide the telecommunications services.
M.
Payment of all fees, deposits or charges required pursuant
to Article VI of this chapter.
N.
Such other and further information as may be required
by the Village.
Within a reasonable time after receiving a complete application for
a telecommunications license, the corporate authorities shall issue a written
determination granting or denying the application in whole or in part and
applying the following standards; and, if the application is denied, the written
determination shall include the reasons for denial.
A.
The financial and technical ability of the applicant.
B.
The legal capacity of the applicant.
C.
The capacity of the public ways to accommodate the applicant's
proposed facilities.
D.
The capacity of the public ways to accommodate additional
utility and telecommunications facilities if the license is granted.
E.
The damage or disruption, if any, of public or private
facilities, improvements, service, travel or landscaping if the license is
granted.
F.
The public interest in minimizing the cost and disruption
of construction within the public ways.
G.
The service that applicant will provide to the community
and region.
H.
The effect, if any, on public health, safety and welfare
if the license is granted.
I.
The availability of alternate routes and/or locations
for the proposed facilities.
J.
Applicable federal and state telecommunications laws,
regulations and policies.
K.
Such other factors as may demonstrate that the grant
to use the public ways will serve the community interest.
No license granted hereunder shall be effective until the applicant
and the Village have executed a written agreement setting forth the particular
terms and provisions under which the license to occupy and use public ways
of the Village will be exercised.
No license granted hereunder shall confer any exclusive right, privilege,
license or franchise to occupy or use the public ways of the Village for delivery
of telecommunications services or any other purposes.
No license granted under this chapter shall convey any right, title
or interest in the public ways, but such license shall be deemed a license
only to use and occupy the public ways for the limited purposes and term stated
in the grant. Further, no license shall be construed as any warranty of title.
All licensees are required to obtain construction permits for telecommunications
facilities as required in Article VII of this chapter; provided, however,
that nothing in this section shall prohibit the Village and a licensee from
agreeing to alternative plan review, permit and construction procedures in
a license agreement, provided that such alternative procedures provide substantially
equivalent safeguards for responsible construction practices.
Each telecommunications license shall be subject to the Village's
right, which is expressly reserved, to annually fix a fair and reasonable
compensation to be paid for the property rights granted to the licensee, provided
that nothing in this section shall prohibit the Village and a licensee from
agreeing to the compensation to be paid.
An amendment to an existing telecommunications license shall be required
before any telecommunications carrier may extend or locate its telecommunications
facilities in public ways of the Village which are not included in a license
previously granted under this chapter.
An application for renewal of a telecommunications license shall be
filed not more than 180 days nor less than 90 days before expiration of the
current license and shall include the following information:
Within a reasonable time after receiving a complete application for
renewal of a telecommunications license, the corporate authorities shall issue
a written determination granting or denying the renewal application in whole
or in part and applying the following standards; and, if the renewal application
is denied, the written determination shall include the reasons for nonrenewal.
A.
The financial and technical ability of the applicant.
B.
The legal capacity of the applicant.
C.
The continuing capacity of the public ways to accommodate
the applicant's existing facilities.
D.
The applicant's compliance with the requirements
of this chapter and the license agreement.
E.
Applicable federal, state and local telecommunications
laws, rules and policies.
F.
Such other factors as may demonstrate that the continued
grant to use the public ways will serve the community interest.
No telecommunications license shall be renewed until any existing violations
or defaults in the licensee's performance of the license agreement, or
of the requirements of this chapter, have been cured, or a plan detailing
the corrective action to be taken by the grantee has been approved by the
Village.
A telecommunications franchise shall be required of any telecommunications
carrier who desires to occupy public ways of the Village and to provide telecommunications
services to any person or area in the Village.
Any person who desires a telecommunications franchise pursuant to this
Article IV shall file an application with the Village which shall include
the following information:
A.
The identity of the franchise applicant, including all
affiliates of the applicant.
B.
A description of the telecommunications services that
are or will be offered or provided by the franchise applicant over its existing
or proposed facilities.
C.
A description of the transmission medium that will be
used by the franchisee to offer or provide such telecommunica-tions services.
D.
Preliminary engineering plans, specifications and a network
map of the facilities to be located within the Village, all in sufficient
detail to identify:
(1)
The location and route requested for applicant's
proposed telecommunications facilities.
(2)
The location of all overhead and underground public utility,
telecommunications, cable, water, sewer drainage and other facilities in the
public way along the proposed route.
(3)
The location(s), if any, for interconnection with the
telecommunications facilities of other telecommunications carriers.
(4)
The specific trees, structures, improvements, facilities
and obstructions, if any, that the applicant proposes to temporarily or permanently
remove or relocate.
E.
If the applicant is proposing to install overhead facilities,
evidence that surplus space is available for locating its telecommunications
facilities on existing utility poles along the proposed route.
F.
If the applicant is proposing an underground installation
in existing ducts or conduits within the public ways, information in sufficient
detail to identify:
G.
If the applicant is proposing an underground installation
within new ducts or conduits to be constructed within the public ways:
H.
A preliminary construction schedule and completion dates.
I.
A preliminary traffic control plan.
J.
Financial statements prepared in accordance with generally
accepted accounting principles demonstrating the applicant's financial
ability to construct, operate, maintain, relocate and remove the facilities.
K.
Information in sufficient detail to establish the applicant's
technical qualifications, experience and expertise regarding the telecommunications
facilities and services described in the application.
L.
Information to establish that the applicant has obtained
all other governmental approvals and permits to construct and operate the
facilities and to offer or provide the telecommunications services.
M.
Whether the applicant intends to provide cable service,
video dialtone service or other video programming service, and sufficient
information to determine whether such service is subject to cable franchising.
N.
An accurate map showing the location of any existing
telecommunications facilities in the Village that the applicant intends to
use or lease.
O.
A description of the services or facilities that the
applicant will offer or make available to the Village and other public, educational
and governmental institutions.
P.
A description of applicant's access and line extension
policies.
Q.
The area or areas of the Village the applicant desires
to serve and a schedule for build-out to the entire franchise area.
R.
Payment of all fees, deposits or charges required pursuant
to Article VI of this chapter.
S.
Such other and further information as may be requested
by the Village.
Within a reasonable period of time after receiving a complete application
for a telecommunications franchise, the corporate authorities shall issue
a written determination granting or denying the application in whole or in
part and applying the following standards; and, if the application is denied,
the written determination shall include the reasons for denial.
A.
The financial and technical ability of the applicant.
B.
The legal capacity of the applicant.
C.
The capacity of the public ways to accommodate the applicant's
proposed facilities.
D.
The capacity of the public ways to accommodate additional
utility and telecommunications facilities if the franchise is granted.
E.
The damage or disruption, if any, of public or private
facilities, improvements, service, travel or landscaping if the franchise
is granted.
F.
The public interest in minimizing the cost and disruption
of construction within the public ways.
G.
The service that the applicant will provide to the community
and region.
H.
The effect, if any, on public health, safety and welfare
if the franchise requested is granted.
I.
The availability of alternate routes and/or locations
for the proposed facilities.
J.
Applicable federal and state telecommunications laws,
regulations and policies.
K.
Such other factors as may demonstrate that the grant
to use the public ways will serve the community interest.
No telecommunications franchise shall be granted unless the applicant
and the Village have executed a written agreement setting forth the particular
terms and provisions under which the franchise to occupy and use public ways
of the Village will be exercised.
No telecommunications franchise shall confer any exclusive right, privilege,
license or franchise to occupy or use the public ways of the Village for delivery
of telecommunications services or any other purposes.
No telecommunications franchise shall convey any right, title or interest
in the public ways. Any such franchise shall be deemed a franchise only to
use and occupy the public ways for the limited purposes and term stated in
the grant. Further, no franchise shall be construed as any warranty of title.
All franchisees are required to obtain construction permits for telecommunications
facilities as required in Article VII of this chapter; provided, however,
that nothing shall prohibit the Village and a franchisee from agreeing to
alternative plan review, permit and construction procedures in a franchise
agreement, provided that such alternative procedures provide substantially
equivalent safeguards for responsible construction practices.
Each telecommunications franchise shall be subject to the Village's
right, which is expressly reserved, to annually fix a fair and reasonable
compensation to be paid for the property rights granted to the franchisee,
provided that nothing shall prohibit the Village and a franchisee from agreeing
to the compensation to be paid, and further provided that the Village shall
not fix an amount of compensation which is contrary to the provision of any
such franchise agreement.
A telecommunications franchisee shall make all of its telecommunications
services available to any customer within its franchise area who shall request
such service, without discrimination as to the terms, conditions, rates or
charges for the grantee's services; provided, however, that nothing in
this section shall prohibit a franchisee from making any reasonable classification
among differently situated customers.
A franchisee shall make its telecommunications services available to
the Village at its most favorable rate for similarly situated users, unless
otherwise provided in a license or franchise agreement.
An amendment to a franchise shall be required of any telecommunications
carrier that desires to extend its franchise territory or to locate its telecommunications
facilities in public ways of the Village which are not included in a franchise
previously granted under this chapter.
Unless otherwise provided by law, an application for renewal of a telecommunications
franchise shall be filed not more than 240 days, nor less than 150 days, before
expiration of the current franchise and shall include the following information:
Within a reasonable time after receiving a complete application for
renewal of a telecommunications franchise, the corporate authorities shall
issue a written determination granting or denying the renewal application
in whole or in part and applying the following standards; and, if the renewal
application is denied, the written determination shall include the reasons
for nonrenewal.
A.
The financial and technical ability of the applicant.
B.
The legal capacity of the applicant.
C.
The continuing capacity of the public ways to accommodate
the applicant's existing facilities.
D.
The applicant's compliance with the requirements
of this chapter and the franchise agreement.
E.
Applicable federal, state and local telecommunications
laws, rules and policies.
F.
Such other factors as may demonstrate that the continued
grant to use the public ways will serve the community interest.
No telecommunications franchise shall be renewed until any ongoing violations
or defaults in the grantee's performance of the franchise agreement,
or of the requirements of this chapter, have been cured, or a plan detailing
the corrective action to be taken by the grantee has been approved by the
Village.
In addition to the provisions outlined in Article IV regarding franchise
application, grant and authority, the approval of a cable franchise is also
subject to the provisions and requirements outlined in this Article V.
The minimum capacity for a cable system shall be 450 MHz with at least
77 downstream channels. Each cable franchise agreement shall require the franchisee
to provide the Village with a written description of the cable system within
the Village, including technical characteristics, channel capacity, channel
carriage and a strand map. The franchisee shall provide the Village with an
updated description upon request by the Village or whenever substantial changes
in the system are made.
The franchisee shall, to the maximum extent possible, assign, as dial
or station locations for local broadcast television stations carried on the
system, numbers, accessible by either a cable-ready television or a converter,
which correspond to their respective FCC-assigned television station call
numbers.
The franchisee shall provide access channels on the subscriber network
for the exclusive use of designated institutions.
A.
The number and use of said channels will be prescribed
in the franchise agreements, and such channels shall be available on the lowest
tier of basic service, without additional charge.
B.
The franchisee shall make every reasonable effort to
assign PEG (public, educational, government) channels to the same channels
assigned to equivalent such channels by other providers within the Village
and in contiguous municipalities in which the franchisee also provides such
channels.
To the extent applicable, renewal shall be governed by the Cable Act.
Applications for franchises shall include proposals for the provision
of public, educational and governmental access to the telecommunications system.
It is the purpose of this article to provide for the payment and recovery
of certain direct and indirect costs and expenses of the Village related to
the enforcement and administration of this chapter.
A.
Each applicant for a telecommunications license or franchise
pursuant to Article III or IV of this chapter, or an amendment or renewal
thereof, shall pay an application review fee of $250 or 1% of the estimated
cost of construction of the applicant's proposed or existing telecommunications
facilities, whichever is greater. No application review fee shall be required
of any applicant for a license or franchise pursuant to Article V of this
chapter.
B.
An applicant whose license or franchise application is
withdrawn or abandoned prior to approval or denial shall, within 60 days of
such withdrawal or abandonment, be refunded its application review fee, less
a reasonable sum to be determined by the Village as its expenses incurred
for the application and review process prior to the date of withdrawal or
abandonment. Such expenses may include all ascertainable costs and expenses
incurred by the Village in connection with the application.
In addition to any application fee required by this chapter, each person
to whom a telecommunications license or franchise or cable franchise is granted
pursuant to Article III, IV or V of this chapter shall, within 30 days after
written demand therefor by the Village, reimburse the Village for all direct
or indirect costs or expenses, including professional fees, but not including
salaries or overhead for Village employees, incurred by the Village in connection
with any application for a telecommunications license, franchise or cable
franchise, or a modification, amendment, renewal or transfer thereof. Where
the Village's authority with respect to such application has been exercised
in whole or in part by an entity to whom the Village has delegated such authority,
the Village's direct and indirect costs and expenses as provided in this
section shall include the Village's share of such expenses incurred by
such entity.
In addition to any fees or reimbursements provided for in this article,
the Village may annually fix a fair and reasonable compensation to be paid
for the property rights granted to a telecommunications license or franchise
or cable franchise grantee. Nothing in this section shall prohibit the Village
and a grantee from agreeing to the compensation to be paid for the granted
property rights. Where a franchise or license agreement contains provision
for such compensation, no further compensation for public way shall be required
pursuant to this section.
If a right is granted, by lease, license, franchise or other manner,
to use and occupy Village property for the installation of telecommunications
facilities, the compensation to be paid shall be fixed by the Village, unless
otherwise agreed upon in the license or franchise agreement, in addition to
any other fee or reimbursement provided for in this section.
Whenever a permit is required for any construction proposed by a telecommunications
licensee or franchisee, or cable television franchisee, pursuant to any other
law, rule or regulation, payment of any fee required for such permit shall
be required, unless otherwise agreed upon in the license or franchise agreement.
Unless otherwise agreed in a license or franchise grant agreement, each
license or franchise grantee shall pay an annual license fee to the Village
equal to 5% of the gross revenues received by the licensee or franchisee pursuant
to the said license or franchise fee. Such annual fee may be used by the Village
for payment or reimbursement of costs incurred in connection with reviewing,
inspecting and supervising the use and occupancy of the public ways in behalf
of the public and existing or future users, and the administration and supervision
of the exercise of the license or franchise, or for any other purpose permitted
by law.
All facilities shall be constructed, installed, located, used and operated
in accordance with the terms and conditions contained in a license or franchise
agreement.
All license or franchise grantees are required to obtain construction
permits for telecommunications facilities. However, nothing in this chapter
shall prohibit the Village and a grantee from agreeing to alternative plan
review, permit and construction procedures in a license or franchise agreement,
provided that such alternative procedures provide substantially equivalent
safeguards for responsible construction practices.
No licensee or franchisee may locate or maintain telecommunications
facilities so as to unreasonably interfere with the use of the public ways
by the Village, by the general public or by other persons authorized to use
or be present in or upon the public ways. All such facilities shall be moved
by the franchisee or licensee, temporarily or permanently, as determined by
the Village Engineer, at the sole cost and expense of the franchisee or licensee.
No franchisee or licensee, nor any person acting on its behalf, shall
take any action or permit any action to be done which may impair or damage
any Village property, public way of the Village, other ways or other property
located in, on or adjacent thereto.
Unless otherwise provided in a license or franchise agreement, no franchisee
or licensee, nor any person acting on his/her grantee's behalf, shall
commence any non-emergency work in or about the public ways of the Village
or other ways without 10 working days' advance written notice to the
Village.
In the event of an unexpected repair or emergency, a franchisee or licensee
may commence such repair and emergency response work as required under the
circumstances, provided that notification is given to the Village as promptly
as possible, before such repair or emergency work or as soon thereafter as
possible if advance notice is not practicable.
Each franchisee and licensee shall maintain its facilities in good and
safe condition and in a manner that complies with all applicable federal,
state and local requirements.
Within 30 days following written notice from the Village, a license
or franchise grantee shall, at its own expense, temporarily or permanently,
remove, relocate, change or alter the position of any telecommunications facilities
within the public ways, at the franchisee or licensee's sole cost and
expense, whenever the corporate authorities shall have determined that such
removal, relocation, change or alteration is reasonably necessary for:
No later than 30 days following written notice from the Village, any
franchisee, licensee, telecommunications carrier or other person that owns,
controls or maintains any unauthorized telecommunications system, facility
or related appurtenances within the public ways of the Village shall, at its
own expense, remove such facilities or appurtenances from the public ways
of the Village. A telecommunications system or facility is unauthorized and
its facilities subject to removal in the following circumstances:
A.
Upon expiration or termination of the grantee's
telecommunications license or franchise.
B.
Upon abandonment of a facility within the public ways
of the Village.
C.
If the system or facility was constructed or installed
without the prior grant of a telecommunications license or franchise.
D.
If the system or facility was constructed or installed
without the prior issuance of a required construction permit.
E.
If the system or facility was constructed or installed
at a location not permitted by the grantee's telecommunications license
or franchise.
The Village retains the right and privilege to cut or move any telecommunications
facilities located within the public ways of the Village, as the Village may
determine to be necessary, appropriate or useful in response to any public
health or safety emergency.
Each registrant, franchisee and licensee shall provide the Village with
an accurate map or maps certifying the location of all telecommunications
facilities within the public ways, and shall provide updated maps annually.
Within 10 days of a written request from the Village, each franchisee
and licensee shall:
A.
Furnish the Village with information sufficient to demonstrate
that the franchisee or licensee has complied with all requirements of this
chapter and that all municipal sales, message and/or telecommunications or
other taxes due the Village in connection with the telecommunications services
and facilities provided by the franchisee or licensee have been properly collected
and paid.
B.
Make all books, records, maps and other documents, maintained
by the franchisee or licensee with respect to its facilities within the public
ways, available for inspection by the Village at reasonable times and intervals.
Unless otherwise provided in a license or franchise agreement, each
franchisee and licensee shall, as a condition of the franchise or license,
secure and maintain the following insurance policies, and shall provide the
Village with appropriate endorsements demonstrating with respect to all liability
insurance policies that the Village and its elected and appointed officers,
officials, agents and employees are named as principal or additional insureds:
B.
Automobile liability for owned, non-owned and hired vehicles
with a limit of $3,000,000 for each person and $3,000,000 for each accident.
C.
Worker's compensation within statutory limits and
employer's liability insurance with limits of not less than $1,000,000.
D.
Comprehensive-form premises-operations, explosions and
collapse hazard, underground hazard and products completed hazard with limits
of not less than $3,000,000.
E.
The liability insurance policies required by this section
shall be maintained by the grantee throughout the term of the telecommunications
license or franchise, and such other period of time during which the grantee
is operating without a franchise or license hereunder or is engaged in the
removal of its telecommunications facilities. Unless otherwise agreed by the
Village, each such insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled nor
the intention not to renew be stated until 30 days after receipt by the Village,
by registered or certified mail, of a written notice addressed to the Village
of such intent to cancel or not to renew."
F.
In the event that the Village receives notice of such
cancellation or intention not to renew, within 20 days after receipt of said
notice, and in no event later than 10 days prior to said cancellation, the
franchisee or licensee shall obtain and furnish to the Village documentation
of replacement insurance policies meeting the requirements of this section.
Each licensee or franchisee shall, to the extent permitted by law, defend,
indemnify and hold the Village and its officers, employees, agents and representatives
harmless from and against any and all damages, losses and expenses, including
reasonable attorney's fees and costs of suit or defense, arising out
of, resulting from or alleged to arise out of or result from the negligent,
careless or wrongful acts, omissions, failures to act or misconduct of the
grantee or its affiliates, officers, employees, agents, contractors or subcontractors
in the construction, operation, maintenance, repair or removal of its telecommunications
facilities, and in providing or offering telecommunications services over
the facilities or network, whether such acts or omissions are authorized,
allowed or prohibited by this chapter or by a grant agreement made or entered
into pursuant to this chapter.
Where the license or franchise agreement provides for a security fund
to be used for payments of penalties, if any, imposed for violation or breach
of the conditions of any such agreement or license, such fund shall serve
as security for the full and complete performance of the terms and conditions
of the license or franchise agreement, and the requirements of this chapter,
including any costs, expenses, damages or loss the Village pays or incurs
because of any failure attributable to the grantee to comply with the codes,
ordinances, rule, regulations or permits of the Village.
A.
Before any sums are withdrawn from the security fund,
the Village shall give written notice to the grantee:
(1)
Describing the act, default or failure to be remedied,
or the damages, cost or expenses which the Village has incurred by reason
of the grantee's act or default.
(2)
Providing a reasonable opportunity for the grantee to
first remedy the existing or ongoing default or failure, if applicable.
(3)
Providing a reasonable opportunity for the grantee to
pay any monies due the Village before the Village withdraws the amount thereof
from the security fund, if applicable.
(4)
Providing that the grantee will be given an opportunity
to review the act, default or failure described in the notice.
B.
The licensee or franchisee shall replenish the required
security fund within 14 days after written notice from the Village that there
is a deficiency in the amount of the fund.
Ownership or control of a telecommunications system, license or franchise
may not, directly or indirectly, be transferred, assigned or disposed of by
sale, lease, merger, consolidation or other act of the grantee, by operation
of law or otherwise, without the prior consent of the Village, which consent
shall not be unreasonably withheld or delayed, as expressed by resolution,
and then only on such reasonable conditions as may be prescribed therein.
A.
No grant shall be assigned or transferred in any manner
within 12 months after the initial grant of the license or franchise, unless
otherwise provided in a license or franchise agreement.
B.
Absent extraordinary and unforeseeable circumstances,
no grant, system or integral part of a system shall be assigned or transferred
before construction of the telecommunications system has been completed.
C.
The franchisee or licensee, and the proposed assignee
or transferee of the franchise, license, system or facility, shall provide
and certify the following information to the Village not less than 150 days
prior to the proposed date of transfer:
(1)
Complete information setting forth the nature, terms
and condition of the proposed transfer or assignment.
(2)
All information required of a license or franchise applicant
pursuant to Article III, IV or V of this chapter with respect to the proposed
transferee or assignee.
(3)
Any other information reasonably required by the Village.
D.
No transfer shall be approved unless the assignee or
transferee has the legal, technical, financial and other requisite qualifications
to own, hold and operate the telecommunications system pursuant to this chapter.
E.
Unless otherwise provided in a license or franchise agreement,
the grantee shall reimburse the Village for all direct and indirect fees,
costs and expenses reasonably incurred by the Village in considering a request
to transfer or assign a telecommunications license or franchise.
F.
Any transfer or assignment of a telecommunications grant,
system or integral part of a system without prior approval of the Village
under this section or pursuant to a license or franchise agreement shall be
void and is cause for revocation of the grant.
Any transactions which singularly or collectively result in a change of 10% or more of the ownership or working control of the grantee, of the ownership or working control of a telecommunications license or franchise, of the ownership or working control of affiliated entities having ownership or working control of the grantee or of a telecommunications system, or of control of the capacity or bandwidth of the grantee's telecommunications system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring Village approval pursuant to § 194-7.16 hereof. Transactions between affiliated entities are not exempt from Village approval.
A license or franchise granted by the Village to use or occupy public
ways of the Village may be revoked for the following reasons:
A.
Construction or operation in the Village or in the public
ways of the Village without a license or franchise grant of authorization.
B.
Construction or operation at an unauthorized location.
C.
Unauthorized substantial transfer of control of the grantee.
D.
Unauthorized assignment of a license or franchise.
E.
Unauthorized sale, assignment or transfer of the grantee's
franchise or license assets or a substantial interest therein,
F.
Misrepresentation or lack of candor by or on behalf of
a grantee in any application to the Village.
G.
Abandonment of telecommunications facilities in the public
ways.
H.
Failure to relocate or remove facilities as required
in this chapter.
I.
Failure to pay taxes, compensation, fees or costs when
and as due the Village.
J.
Insolvency or bankruptcy of the grantee.
K.
Violation of material provisions of this chapter.
L.
Violation of the material terms of a license or franchise
agreement.
Unless otherwise provided in the license or franchise agreement, in
the event that the Village believes that grounds exist for revocation of a
license or franchise, it shall give the licensee or franchisee written notice
of the apparent violation or noncompliance, providing a short and concise
statement of the nature and general facts of the violation or noncompliance
and providing the grantee a reasonable period of time, not exceeding 30 days,
to furnish evidence:
The Village Board of Trustees, or a person designated by the Board of
Trustees for such purpose, shall consider the apparent violation or noncompliance
in a public meeting, with respect to which the corporate authorities shall
provide the grantee with notice and a reasonable opportunity to be heard concerning
the matter.
If persuaded that the grantee has violated or failed to comply with
material provisions of this chapter or of a franchise or license agreement,
the corporate authorities shall determine whether to revoke the license or
franchise or to establish some lesser sanction and cure, considering the nature,
circumstances, extent and gravity of the violation as reflected by one or
more of the following factors:
A.
Whether the misconduct was egregious.
B.
Whether substantial harm resulted.
C.
Whether the violation was intentional.
D.
Whether there is a history of prior violations of the
same or other requirements.
E.
Whether there is a history of overall compliance.
F.
Whether the violation was voluntarily disclosed, admitted
or cured.
