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 licensees and franchisees are required to
obtain construction permits for telecommunications facilities. However,
nothing in this chapter shall prohibit the Village and a licensee
or franchisee 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.
[Amended 6-5-2012 by L.L. No. 12-2012]
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 and at the sole cost and
expense of the licensee or franchisee, temporarily or permanently,
as determined by the Superintendent of Public Works of the Village,
or his designee, which may, but is not required to be, the consulting
engineers for the Village, or such other person as may be designated
from time to time by resolution of the Board of Trustees.
No licensee or franchisee, nor any person acting
on their behalf, shall take any action or permit any action to be
done which may impair or damage any Village property, public ways,
other ways or other property located in, on or adjacent thereto, except
as is necessarily required in the course of permitted construction
under the license or franchise agreement.
Unless otherwise provided in a license or franchise
agreement, no licensee or franchisee, nor any person acting on their
behalf, shall commence any nonemergency work in or about the public
ways or other ways without 10 working days' advance written notice
to the Village.
In the event of an emergency or the need for
an unexpected repair for which it is not reasonable to provide 10
working days' advance written notice to the Village, a licensee or
franchisee may commence such emergency response work or repair, as
may be required under the circumstances, provided that notification
is given to the Village as soon as practicable under the circumstances.
Each licensee or franchisee shall maintain its
facilities in a 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 licensee or franchisee shall, 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:
A.
No later than 30 days following written notice from
the Village, any franchisee, telecommunications carrier or other person
that owns, controls or maintains any unauthorized telecommunications
system, facility or related appurtenances within the public ways shall,
at its own cost and expense, remove such facilities or appurtenances
from the public ways.
B.
A telecommunications system or facility is unauthorized
and its facilities subject to removal in the following circumstances:
(1)
Upon expiration or termination of the licensee or
franchisee's telecommunications license or franchise.
(2)
Upon abandonment of a facility within the public ways.
(3)
If the system or facility was constructed or installed
without the prior grant of a telecommunications license or franchise.
(4)
If the system or facility was constructed or installed
without the prior issuance of a required construction permit.
(5)
If the system or facility was constructed or installed
at a location not permitted by the licensee or franchisee's telecommunications
license or franchise.
The Village retains the right and privilege
to cut or move any telecommunications facilities located within the
public ways, as the Village may determine to be necessary, appropriate
or useful in response to any public health or safety emergency.
Each registrant, licensee and franchisee 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 licensee and franchisee shall:
A.
Furnish the Village with information sufficient to
demonstrate that the licensee or franchisee has complied with all
requirements of this chapter and that all municipal telecommunications
tax, utility receipts tax and other taxes, if any, due the Village
in connection with the telecommunications services and facilities
provided by the licensee or franchisee have been properly collected
and paid.
B.
Make all books, records, maps and other documents,
maintained by the licensee or franchisee with respect to its facilities
within the public ways, available for inspection by the Village at
reasonable times and intervals.
A.
Unless otherwise provided in a license or franchise
agreement, each licensee and franchisee shall, as a condition of the
license or franchise, 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, its officers, officials, employees, agents and representatives
are named as principals or additional insureds:
(2)
Automobile liability for owned, nonowned and hired
vehicles with a limit of $3,000,000 for each person and $3,000,000
for each accident.
(3)
Workers' compensation within statutory limits and
employers' liability insurance with limits of not less than $1,000,000.
(4)
Comprehensive form premises-operations, explosions
and collapse hazard, underground hazard and products completed hazard
with limits of not less than $3,000,000.
B.
The liability insurance policies required by this
section shall be maintained by the licensee or franchisee throughout
the term of the telecommunications license or franchise and, unless
otherwise agreed by the Village, each such other period of time during
which the licensee or franchisee is operating without a franchise
or license hereunder or is engaged in the removal of its telecommunications
facilities. Each such insurance policy shall contain the following
endorsement:
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"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."
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C.
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 licensee or franchisee shall obtain and furnish to the Village
satisfactory documentation of replacement insurance policies meeting
the requirements of this article.
Each licensee and franchisee, to the extent
permitted by law, shall defend, indemnify and hold the Village and
its officers, officials, employees, agents and representatives harmless
from and against any and all damages, losses and expenses, including
reasonable attorneys' 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 licensee or franchisee 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.
A.
Where a license or franchise agreement provides for
a security fund to be used for payments of penalties, if any, imposed
for a violation or breach of the conditions of any such agreement,
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 licensee or franchisee, to comply with the codes,
ordinances, rules, regulations or permits of the Village.
B.
Before any sums are withdrawn from the security fund,
the Village shall give written notice to the licensee or franchisee:
(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 licensee or franchisee's act or default.
(2)
Providing a reasonable opportunity for the licensee
or franchisee to first remedy the existing or ongoing default or failure,
if applicable.
(3)
Providing a reasonable opportunity for the licensee
or franchisee to pay any monies due the Village before the Village
withdraws the amount thereof from the security fund, if applicable.
(4)
Providing that the licensee or franchisee will be
given an opportunity to review the act, default or failure described
in the notice.
C.
The licensee and 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.
A.
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 licensee or franchisee, 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.
B.
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.
C.
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.
D.
The licensee or franchisee and the proposed assignee
or transferee of the 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:
E.
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.
F.
Unless otherwise provided in a license or franchise
agreement, the licensee or franchisee 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.
G.
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 licensee or franchisee, 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 licensee or franchisee or of a telecommunications system or of control of the capacity or bandwidth of the licensee or franchisee's telecommunications system, facilities or substantial parts of this article, shall be considered an assignment or transfer requiring Village approval pursuant to § 513-67 of this article. Transactions between affiliated entities are not exempt from Village approval.
A license or franchise granted by the Village
to use or occupy public ways may be revoked for the following reasons:
A.
Construction or operation in the Village or in the
public ways without a license or franchise grant of authorization.
B.
Construction or operation at an unauthorized location.
C.
Unauthorized substantial transfer of control of the
licensee or franchisee.
D.
Unauthorized assignment of a license or franchise.
E.
Unauthorized sale, assignment or transfer of the licensee
or franchisee's franchise or license assets, or a substantial interest
therein.
F.
Misrepresentation or lack of candor by or on behalf
of a licensee or franchisee 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 licensee or franchisee.
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 licensee or franchisee 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 Board of Trustees shall provide the licensee or franchisee with
notice and a reasonable opportunity to be heard concerning the matter.
If persuaded that the licensee or franchisee
has violated or failed to comply with material provisions of this
chapter, or of a franchise or license agreement, the Board of Trustees
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.
