City of Mount Vernon, NY Granting Authority and Franchising Procedure

A revocable license is intended to be a limited grant of authority to use and occupy specifically identified streets to provide telecommunications services and shall be granted only if:

(a)

The use or occupation of such streets, together with all revocable licenses previously granted to such person and affiliated persons, shall not exceed 2,500 linear feet; or

(b)

The use or occupation of such streets does not involve the offering or provision of telecommunications services to any person within the City.

In the event an application for a revocable license would cause a telecommunications provider to exceed or fail to comply with the limits specified in Subsection G(1)(a) and/or (b), then such telecommunications provider must apply for a franchise in accordance with the provisions of this ordinance, and the use of specifically identified streets pursuant to all previously granted revocable licenses shall thereafter be pursuant to and in accordance with any such franchise that may be granted.

§ 239-3 Compliance with rules: permits required.

Subject to the provisions of this ordinance, the City may adopt rules, policies and requirements to carry out the purposes and provisions of this ordinance. Each applicant, franchisee and licensee shall comply with such rules, policies and requirements.

No person shall construct or install any equipment in the streets used to provide telecommunications services without first obtaining such permits or other authorizations as may be required by the City. No permits or other authorizations for such construction or installation shall be issued prior to the granting of a franchise or a revocable license pursuant to this ordinance or such other authorization as may be required by applicable law.

§ 239-4 Submission of application.

Applications for franchises and revocable licenses shall be submitted to the Commissioner of Public Works with a copy also to be submitted to the Corporation Counsel.

An application shall contain the following information with respect to the proposed franchise or revocable license and such other information with respect to the proposed franchise or revocable license as the City may deem necessary or appropriate, consistent with applicable law:

The name, address and telephone number of the applicant and the person the City may contact concerning the application;

A description of the telecommunications services proposed to be provided, including, without limitation, a description of facilities and equipment;

A description of the proposed franchise area or, in the case of a revocable license, the specifically identified streets and/or portions thereof proposed to be used;

(4)

A proposed construction schedule and sequence;

(5)

A map showing the proposed location of the applicant's telecommunications system;

(6)

Insurance and bonding information of the applicant relative to the proposed franchise or revocable license; and

(7)

Consistent with applicable law, all other information required by the City necessary in managing its public rights-of-way.

§ 239-5 Responsibilities of applicants.

It shall be the responsibility of each applicant for a franchise or revocable license to comply with all applicable laws, ordinances, resolutions, rules, regulations and other directives of the City and any federal, state or local governmental authority having jurisdiction.

§ 239-6 (Reserved)

§ 239-7 Negotiation of agreement.

If an application is complete and otherwise complies with applicable law, ordinances, resolutions, rules, regulations and other directives of the City, including the provisions of this ordinance, the City shall enter into negotiations with the applicant to determine whether such applicant and the City are able to reach an agreement on the terms of the proposed franchise or revocable license in accordance with §§ 239-10 and 239-11 of this ordinance. The City may reject any application which is incomplete or otherwise fails to comply with applicable law, ordinances, resolutions, rules, regulations and other directives of the City and any federal, state or local authority having jurisdiction.

§ 239-8 Factors for review of application.

In making any determination hereunder as to any application for a franchise or revocable license, the City Council may consider such factors as it deems appropriate and in the public interest, provided such factors are consistent with applicable law, including without limitation:

The adequacy of the proposed compensation to be paid to the City, including the value of any facilities and telecommunications services offered by the applicant to the City;

The ability of the applicant to maintain the property of the City in good condition throughout the term of the franchise or revocable license;

Any services or uses of the streets that may be precluded by the grant of the franchise or revocable license; and the adverse impact of the proposed franchise or revocable license on the efficient use of the streets or utilities at present and in the future;

(4)

The willingness and ability of the applicant to meet construction and physical requirements and to abide by all lawful conditions, limitations, requirements and policies with respect to the franchise or the revocable license;

(5)

The adequacy of the terms and conditions of the proposed franchise or revocable license agreement to protect the public interest, consistent with applicable law; and

(6)

Any other public interest factors or considerations that the City has a lawful right to consider and that are deemed pertinent by the City for safeguarding the interests of the City and the public.

Consistent with applicable law, the City may develop and implement policies and requirements to ensure that the streets have sufficient capacity reasonably to accommodate existing and future uses in a rational and efficient manner. In evaluating an applicant for a franchise or revocable license, the City may consider an applicant's proposals for addressing capacity needs and compliance with City policies and requirements.

§ 239-9 Procedure for consideration of and action on applications.

The City Council may make such investigations and take or authorize the taking of such other steps as the City Council deems necessary or appropriate to consider and act on applications for franchises and revocable licenses and to determine whether a franchise or revocable license should be granted to an applicant, and may require the applicant to furnish additional information and data for this purpose. In considering applications, the City Council may seek advice from City officials, departments, agencies, boards, commissions or bodies, from such other advisory bodies as it may establish or determine appropriate, or from the public, and may request the preparation of one or more reports to be submitted to the City Council, which may include recommendations with respect to such applications.

Consistent with applicable law, upon completion of the steps deemed appropriate by the City Council, the City Council may grant or deny the franchise or revocable license, and may specify the conditions under which the franchise or revocable license is granted.

§ 239-10 Terms and conditions of franchise.

The terms and conditions applicable to any franchise granted pursuant to this ordinance shall be set forth in the separate ordinance granting the franchise and/or in a separate written agreement. A franchise granted pursuant to this ordinance shall not become effective until said separate ordinance becomes effective and any separate agreement is executed by both parties.

Such separate ordinance or written agreement, among other things, shall address the following subjects:

The term of the franchise;

The franchise area and the telecommunications services to be offered;

The compensation to be paid to the City, which shall include the payment of fees and/or the provision of facilities or services;

(4)

The circumstances upon which the franchise may be terminated or cancelled;

(5)

The mechanisms, such as performance bonds, security funds or letters of credit, to be put in place to ensure the performance of the franchisee's obligations under the franchise;

(6)

The City's right to inspect the facilities and records of the franchisee;

(7)

Insurance and indemnification requirements applicable to the franchisee;

(8)

The obligation of the franchisee to maintain complete and accurate books of account and records, and the City's inspection rights with respect thereto;

(9)

Provisions to ensure quality workmanship and construction methods;

(10)

Provisions to ensure that the franchisee will comply with all applicable City, state and federal laws, regulations, rules and policies;

(11)

The obligation of the franchisee to supply an engineering site plan showing the proposed location of the applicant's telecommunications system, including any manholes or overhead poles, the size, type and proposed depth of any conduit or other enclosures, and the relationship of the system to all existing poles, utilities, sidewalks, pavement, telecommunications systems, and other improvements in the streets, all of which shall be subject to approval by the appropriate City departments;

(12)

Provisions to restrict the assignment or other transfer of the franchise without the prior written consent of the City;

(13)

Remedies available to the City to protect the City's interest in the event of the franchisee's failure to comply with terms and conditions of the franchise;

(14)

Provisions to ensure that the franchisee will obtain all necessary licenses and permits from, and comply with, all laws, regulations, rules and policies of any governmental body having jurisdiction over the franchisee, including the Federal Communications Commission;

(15)

Provisions to ensure that the franchisee will protect the property of the City and the delivery of public services from damage or interruption of operations resulting from the construction, operation, maintenance, repair or removal of improvements related to the franchise;

(16)

Provisions designed to minimize the extent to which the public use of the streets of the City are disrupted in connection with the construction of improvements relating to the franchise; and

(17)

Such other provisions as the City determines are necessary or appropriate in furtherance of the public interest, consistent with applicable law.

§ 239-11 Terms and conditions of revocable license.

The terms and conditions applicable to any revocable license granted pursuant to this ordinance shall be set forth in the separate ordinance granting the revocable license and/or in a separate written agreement. A revocable license granted pursuant to this ordinance shall not become effective until the separate ordinance granting the license becomes effective and any separate written agreement is executed by both parties. Such separate ordinance and/or written agreement shall address the same subjects listed in § 239-10 of this ordinance subject to the following limitations:

The revocable license shall be for a term not to exceed 10 years from the date that the ordinance granting the revocable license becomes effective;

The revocable license shall be revocable at any time by the City for cause or for the City's purposes; and