[HISTORY: Adopted by the Board of Trustees of the Village
of Northport 12-17-2013 by L.L. No. 3-2013. Amendments noted where
applicable.]
A.
Except as otherwise specified herein, no person shall construct or
operate a telecommunications system which occupies the public rights-of-way
within the Village, or be granted a permit, approval or authorization
to construct any portion of any such facility within the Village,
without having been issued a right-of-way use license by the Board.
B.
The Board or its designee shall receive and review all applications
for right-of-way use licenses in accordance with the provisions of
this chapter.
C.
Notwithstanding Subsection A, the requirements of this chapter shall not apply to any entity (or its affiliate) holding a cable television franchise issued by the Village, or otherwise authorized by state law and permitted by the Village to deploy and operate facilities in the public rights-of-way for the provision of wireline telecommunications service to end users prior to the date of enactment of this chapter, and deploying equipment on facilities authorized to be in the public rights-of-way pursuant to such franchise or authorization or used in the provision of services lawfully provided over such facilities.
For the purposes of this chapter and any license in accordance
herewith, the following terms, phrases, words and their derivations
shall have the meaning given herein.
Any person that applies for a license pursuant to this chapter.
A written document containing the required elements specified
in this chapter requesting a license to use the Village rights-of-way.
The Board of Trustees of the Village of Northport.
This chapter and all modifications and amendments hereto.
A person who, for a charge or payment of a fee, receives,
sends or uses any signal or service provided, transmitted, or distributed
by a telecommunications system licensed by the Village. In the case
of a licensee that provides, transmits, or distributes signals or
services of other telecommunications carriers or providers of telecommunications
offering service within the Village, such carriers and providers shall
be considered customers of that licensee for purposes of this chapter.
The person or its legal successor in interest who is issued
a license in accordance with the provisions of this chapter for the
erection, construction, reconstruction, operation, maintenance, dismantling,
testing, repair and use of a telecommunications system in the Village.
The privilege granted by the Village by which the Village
authorizes a person to erect, construct, reconstruct, operate, dismantle,
test, use and maintain a telecommunications system that occupies the
streets, public ways or public places within the Village. Any license
issued in accordance herewith shall be a nonexclusive license.
Any Village-owned poles, streetlights, lighting fixtures,
electroliers or other Village-owned structures located within the
public rights-of-way to which a licensee attaches or installs telecommunications
system equipment or facilities.
The surface, the air above the surface, and the area below
the surface within any street, highway, lane, path, alley, sidewalk,
boulevard, drive, bridge, tunnel, park, parkway, lane, square, viaduct,
waterway or other public right-of-way including public utility easements
or rights-of-way in which the Village has jurisdiction; and any other
public ground or water within belonging to the Village.
Any area established for vehicular or public access use or
the entire width between the boundary lines of every way publicly
maintained when any part thereof is open for public purposes. "Street"
includes, but is not limited to, highway, avenue, road, alley, right-of-way,
lane, boulevard, concourse, bridge, tunnel, parks, parkways, waterways,
docks, overheads, wharves and piers.
Shall have meanings set forth in Sections 3(50) and 3(53)
of the Federal Communications Act, 47 U.S.C. § 153(50) and
(53), respectively.
Any equipment or facilities, and any supporting structures
therefor, used to provide wireline or wireless telecommunications
or telecommunications service on a wholesale or retail basis, or used
in the provision of such telecommunications or telecommunications
service, that in any manner is connected with the streets, public
rights-of-way, public places, or property within the Village, as now
or in the future may exist including, but not limited to, facilities
or equipment deployed or operated in the Village by an entity holding
a certificate of public convenience and necessity.
All revenue and consideration, as determined in accordance
with generally accepted accounting principles, which is paid to or
received by the licensee from its provision of services within the
Village or in any way derived from the operation of its telecommunications
system, including, but not limited to, any interconnection between
its telecommunications system in the Village and any other communications
system. This sum shall be the basis for computing the fee imposed
pursuant to this chapter. The sum shall not include any bad debts,
deposits, promotional or vendor discounts or credits nor sales, service,
occupation or other excise tax to the extent that such taxes are charged
separately from normal service charges and are remitted by the licensee
directly to the taxing authority.
The Village of Northport, acting through the Board, or its
duly authorized designee.
A.
Any license issued by the Village in accordance herewith shall be a nonexclusive license for a term of five years to use the streets, public rights-of-way or public places within the City, as specified in the license Agreement described in § 272-5D, for the erection, construction, reconstruction, operation, maintenance, dismantling, testing and use of a telecommunications system.
B.
Any license issued by the Village may be renewable upon establishment
by the licensee to the satisfaction of the Village that the licensee
is in compliance with this chapter, all applicable federal, state
and local laws, ordinances, and regulations and the space occupied
by the telecommunications system facilities is not otherwise needed
for a public purpose.
A.
Before commencing construction of a telecommunications system in,
above, over, under, across, through or in any way connected with the
streets, public ways or public places of the Village, the licensee
shall obtain at its own cost and expense any required permit, license,
approval or other authorization prior to the commencement of the activity
for which the permit, license, approval or other authorization is
required.
B.
Nothing in this chapter shall be construed as a representation, promise
or guarantee by the Village that any permit, license, approval, or
other authorization required under any Village law for the construction
or installation of a telecommunications system shall be issued.
A.
Upon obtaining written approval, the licensee shall give the appropriate
agency written notice within a reasonable time of proposed construction,
but in no event shall the notice be given less than 10 days before
the commencement.
B.
Any person who submits a request for a license in accordance herewith
shall include therein proposed agreements for the use of existing
utility poles and conduits, if applicable, with the owner(s) of the
facilities to be used or affected by the construction of the proposed
telecommunications system.
C.
It shall be unlawful for the licensee or any other person to open or otherwise disturb the surface of any street, sidewalk, driveway, public way or other public place for any purpose whatsoever without obtaining approval to do so after proceeding in the manner prescribed in Subsections A and B hereof. Violation of this section shall subject the licensee to all penalties and remedies prescribed therein and to all other remedies, legal or equitable, which are available to the Village.
D.
Any license issued pursuant to this chapter shall contain provisions
addressing the terms and conditions of the licensee's use of
the streets, public rights-of-way, and public places to construct,
install, operate, maintain and repair facilities and equipment authorized
to be deployed hereunder, including provisions addressing:
(1)
Conditions on the licensee's use of the rights-of-way and any
Village-owned facilities, structures or fixtures;
(2)
Obligations to restore and repair streets, rights-of-way and property
disturbed by construction or maintenance activity;
(3)
Facilities relocation for public purposes;
(4)
Construction and safety standards and facilities design and siting
requirements;
(5)
Licensee's obligations to comply with all applicable laws and
obtain all necessary permits, approvals and authorizations prior to
construction, maintenance or repair of any facilities, equipment,
poles or support structures;
(6)
Compensation to the Village for use of the rights-of-way and attachment
of licensee's equipment to any municipal facilities;
(7)
Insurance and bonding requirements;
(8)
Indemnification;
(9)
Conditions on transfer or assignment;
(10)
Such other conditions aimed at ensuring that licensee's
use of the public rights-of-way minimizes disruption to the public
and protects, consistent with applicable law, public health, safety
and aesthetic concerns.
A.
The Board or its designee shall develop and utilize a standard form
application for right-of-way use licenses issued under this chapter.
Such application shall, at a minimum, require the submission of the
following information:
(1)
The applicant's name and address, principal line(s) and location(s)
of business, and its designated contact(s) for telecommunications
with the Village;
(2)
A description of the type of facilities and equipment proposed to
be deployed in the public rights-of-way;
(3)
Specification of the proposed locations within the Village where
such facilities and equipment will be deployed, including location
maps and elevation drawings of proposed facilities and any other proposed
structures, showing color, and identifying structural materials;
(4)
A proposed construction schedule and sequence;
(5)
Documentation that the proposed facilities meet all applicable construction,
design and engineering standards, including but not limited to the
most recent editions of the ANSI Code, National Electrical Safety
Code and the National Electrical Code;
(6)
Evidence that the applicant has the financial, technical, and legal
ability to construct, install, operate and maintain the facilities
in the local rights-of-way;
(7)
Copies of all federal and state licenses and authorizations required
for the intended operation of the telecommunications system, or a
statement of the applicant's belief as to why no such licenses
or authorizations are necessary;
(8)
A description of the proposed services to be provided over such facilities
and evidence that the applicant has obtained all necessary approvals
and authorizations to provide such services;
(9)
Documentation of the applicant's ability to satisfy any bonding,
insurance and indemnification obligations imposed as a condition of
the license;
(10)
Affirmation of the applicant's willingness to pay the applicable
compensation required by this chapter;
(11)
Such other information deemed necessary by the Board or its
designee to evaluate the impact of the applicant's proposed communication
system on the rights-of-way and to ensure that such impact will be
consistent with the general welfare of the Village.
B.
Submission of the application required herein shall be accompanied
by a nonrefundable fee of to defray the costs and expenses associated
with review of the application and assessment of the impact of the
proposed telecommunications system on the rights-of-way and the general
welfare of the Village. Application fees shall be established by the
Board by resolution from time to time.
A.
Within 30 calendar days after the date that an application for a
right-of-way use license is filed with the Village, the Village shall
notify the applicant in writing of any information that may be required
to complete such application.
B.
Once the Village determines that the application is complete, with
all required submissions having been received in proper form, it shall
refer the application to the Board for a public hearing. Such hearing
shall take place no later than 45 days after the date the application
is deemed complete. If an approval is required by the Village Board
of Zoning Appeals ("BZA"), then the Board may rely upon the public
hearing held before the BZA in lieu of holding its own public hearing.
C.
Within 30 days of the completion of such hearing, the Village shall
provide the applicant with a proposed agreement reflecting the requirements
of this chapter and setting forth the terms and conditions under which
the applicant may construct and operate its telecommunications system
within the Village's rights-of-way. The Village and the applicant
may discuss and, if mutually agreeable, revise the proposed agreement
as appropriate. If the Village is unable to provide such a proposed
agreement due to the absence of relevant information or for any other
reason, it shall so advise the applicant in writing.
D.
Unless otherwise agreed upon by the Village and the applicant, all
applications shall be acted upon within 150 days of the receipt of
a fully completed application and execution of a license agreement.
If additional information was requested by the Village to complete
an application, the time required by the applicant to provide the
information shall not be counted toward the one-hundred-fifty-day
review period.
E.
The Village shall conduct its review and determination of applications,
and adopt right-of-way use license agreements authorized hereunder,
in a competitively neutral and nondiscriminatory manner. The Village
shall not disapprove any application unless:
(1)
The applicant fails to submit a complete application, or fails to
provide information necessary to review the application, within the
timeframe specified by the Village;
(2)
The applicant declines to enter into a license agreement containing
any of the provisions required herein;
(3)
The Village determines that the applicant lacks the financial, technical,
and legal ability to construct, install, operate and maintain the
facilities in the local rights-of-way;
(4)
The Village determines, based upon information adduced from the application,
hearing or proceeding, that grant of the application would adversely
affect the local rights-of-way, property within the Village, or public
safety and welfare.
F.
The Village shall issue a written decision memorializing its disposition
of the application and incorporating the license agreement entered
into by the parties.
A.
Right-of-way use fee. As compensation for its use and occupation
of the streets, rights-of-way and public places of the Village, a
licensee shall pay annual fees to the Village as follows:
(1)
Any telecommunications system which serves no customers other than
itself shall pay charges and license fees as determined based upon
a reasonable estimate of the anticipated gross revenue or as is comparable
with the amounts paid to other similarly situated municipalities.
(2)
Any telecommunications system that serves customers within the Village
shall pay annually 5% of the annual total local gross revenues derived
from the customers.
(3)
Nothing in this subsection shall preclude the Village and licensee
from negotiating an alternative fee arrangement so long as such alternative
yields total compensation to the Village that is substantially equivalent
to, and a reasonable proxy for, the otherwise applicable compensation
formula under this subsection and so long as the opportunity to negotiate
such alternative fee arrangements is available to all other prospective
licensees on a non-discriminatory basis. Nothing in this paragraph
shall be construed to require the Village or a licensee to enter into
such an alternative fee arrangement.
B.
Municipal facilities fee. As compensation for its use of any Village-owned
street poles, street lamps and lighting fixtures, and other Village-owned
structures upon which telecommunications system facilities are proposed
to be constructed or installed, an amount based upon a reasonable
estimate of the anticipated gross revenue or as is comparable with
the amounts paid to other similarly situated municipalities.
A.
The Village shall not at any time be liable for any injury or damage
occurring to any person or property from any cause whatsoever arising
from the use, operation or condition of the licensee's telecommunications
system.
B.
The licensee shall indemnify, save and hold harmless and defend the
Village from all liens; charges; claims, including but not limited
to, libel, slander, invasion of privacy and unauthorized use of any
trademark, trade name or service mark; demands; suits; actions; fines;
penalties; losses; costs, including but not limited to, reasonable
legal fees and court costs; judgments; injuries; liabilities or damages,
in law or equity, of any and every kind and nature whatsoever, including
damages caused by or arising out of any act of negligent omission
of the Village, its officers, servants, agents, employees or contractors,
or otherwise, arising out of or in any way connected with the installation,
operation, maintenance or condition of the licensee's telecommunications
system.
C.
Any right-of-way use license issued hereunder shall set forth the
type and coverage of insurance required, taking into consideration
the size and location of the telecommunications system, the financial
resources of the licensee, risk involved to the City and to the general
public as well as other salient factors.
Nothing in this chapter or in any license issued in accordance
herewith shall be construed as an abrogation of, or restriction on,
the exercise of the Village's police power.
The licensee shall not transfer or assign its interest in any
license issued in accordance herewith without the prior written authorization
of the Village. Nothing in any approval by the Village authorizing
any transfer or assignment of any license issued in accordance herewith
shall be construed to waive or release any rights of the Village in
and to the streets, rights-of-way and public places of the Village
or as a release of any of the Village's police powers.
