[HISTORY: Adopted by the Board of Trustees
of the Village of Croton-on-Hudson 12-18-2000 by L.L. No. 5-2000.[1] Amendments noted where applicable.]
[1]
Editor's Note: This chapter was adopted as
Ch. 310, but was renumbered to fit into the alphabetical organization
of the Code. This local law also provided that, to the extent permitted
by law, the village may determine to apply all or certain provisions
of this chapter to telecommunications providers and franchises and
other right-of-way authorizations existing on the effective date of
this chapter.
The Village of Croton-on-Hudson has the authority
to grant franchises and other authorizations for the use and occupancy
of its streets and has determined that its streets are a valuable
public resource that has required, and will continue to require, substantial
investment by the village. The village desires to structure and implement
a fair and orderly process for the grant of franchises and other authorizations
(and renewals of such franchises and authorizations) to occupy and
use its streets to provide telecommunications services (as hereinafter
defined) in the village, including the negotiation of terms and conditions
to protect the public interest consistent with applicable law. In
addition, consistent with applicable law, the village desires to manage
its streets and obtain fair and reasonable compensation from telecommunications
providers on a competitively neutral and nondiscriminatory basis for
the use of its streets on a nondiscriminatory basis. The village also
desires to minimize inconvenience and disruption to the public, provide
for the orderly and efficient use of its streets now and in the future
and preserve adequate capacity for existing and future uses of its
streets; and the village intends to exercise, to the fullest extent
permitted by applicable law, its authority with respect to the regulation
of the occupation and use of its streets in connection with the provision
of telecommunications services.
For purposes of this chapter, the following
terms, phrases, words and their derivations shall have the meanings
set forth in this section, unless the context clearly indicates that
another meaning is intended. When not inconsistent with the context,
words used in the present tense include the future, words used in
the plural number include the singular number and words used in the
singular number include the plural number.
Each person who falls into one or more of the following categories:
each person having, directly or indirectly, a controlling interest
in the applicant; each person in which the applicant has, directly
or indirectly, a controlling interest; each officer, director, joint
venturer or joint venture partner, of the applicant; and each person,
directly or indirectly, controlling, controlled by or under common
control with the applicant; provided that "affiliated person" shall
in no event mean the village or any creditor of the applicant solely
by virtue of its status as a creditor and which is not otherwise an
affiliated person by reason of owning a controlling interest in, being
under common ownership, common management or common control with,
the applicant.
The Board of Trustees of the Village of Croton-on-Hudson
and its designee or any successor thereto.
As defined in the Communications Act of 1934, as amended
by the Cable Communications Policy Act of 1984, the Cable Television
Consumer Protection and Competition Act of 1992 and the Telecommunications
Act of 1996, and as may be further amended from time to time (the
"Cable Act"). In the event that "cable services" is no longer defined
in the Cable Act or the definition in the Cable Act otherwise becomes
inapplicable, "cable services" shall mean "cable services" as defined
in the Cable Act immediately prior to such term no longer being defined
in the Cable Act or such definition otherwise becoming inapplicable.
This chapter and all modifications and amendments thereto.
Actual working control in whatever manner exercised, including,
without limitation, working control through ownership, management,
debt instruments or negative control, as the case may be, of the applicant
or the equipment in the street. A rebuttable presumption of the existence
of control or a controlling interest shall arise from the beneficial
ownership, directly or indirectly, by any person, or group of persons
acting in concert, of more than 20% of any person (which person or
group of persons is hereinafter referred to as "controlling person").
"Control" or "controlling interest" as used herein may be held simultaneously
by more than one person or group of persons.
The poles, wires, electrical conductors, cables, conduits,
subways, manholes, fixtures, appliances and appurtenances that are
used to provide telecommunications services.
An initial authorization, or renewal thereof, issued by the
village in accordance with the provisions of this chapter, which authorizes
the occupation and use of the streets to provide telecommunications
services.
Being permissive.
Any individual or any association, firm, partnership, joint
venture, corporation or other legally recognized entity, whether for
profit or not for profit, but shall not mean the Village of Croton-on-Hudson.
An initial authorization or renewal thereof, issued by the village in accordance with the provisions of this chapter, which authorizes the limited occupation and use of specifically identified streets, provided that a revocable license shall be issued only in the limited circumstances set forth in § 205-3, Subsections B and G, of this chapter.
Being mandatory, not merely directive.
The surface of, as well as the spaces above and below, any
and all streets, alleyways, avenues, highways, boulevards, driveways,
bridges, tunnels, parks, parkways, public grounds or waters, and other
public rights-of-way within or belonging to the village.
All transmissions, between or among points specified by the
user, of information of the user's choosing without change in the
form or content of the information as sent and received.
Any person who:
Owns, constructs, operates or maintains equipment
in the streets used to provide telecommunications services, regardless
of whether such telecommunications services originate or terminate
in the village; or
Provides telecommunications services that originate
or terminate in the village by means of: specifically identifiable
equipment in the streets, which equipment is owned by such person
or made available to such person under a lease or any other arrangement
for a period longer than 120 days; or equipment in the streets, if
the use of such equipment is continuing and substantial, and the village
has determined that it is necessary and appropriate to impose the
requirements of this chapter in order to preserve the application
of this chapter on a competitively neutral and nondiscriminatory basis
consistent with applicable law.
The offering of telecommunications for a fee directly to
the public, or to such classes of users as to be effectively available
directly to the public, regardless of the facilities used. The term
"telecommunications services" shall not include cable services.
The plant, equipment, real property (including interests
in real property), tangible and intangible personal property, buildings,
offices, furniture, customer lists, cable, wires, optical fibers,
amplifier, antenna and all other electronic devices, equipment and
facilities used to provide telecommunications services.
The Village of Croton-on-Hudson, New York.
A.
Franchise, license or permission required.
[Amended 9-15-2008 by L.L. No. 6-2008]
(1)
No person shall use or occupy the streets as a telecommunications
provider, or construct, operate or maintain equipment in the streets
used to provide telecommunications services, without a franchise or
revocable license granted by the Village, or in the case of a person
providing service under Title 27 of the New York Transportation Corporations
Law, without the permission of the Village. Permissions granted after
the effective date of this ordinance[1] shall be in the form of a franchise of license issued in accordance with this chapter, but nothing in this Subsection A(1) is intended to revoke any existing permission.
[1]
Editor's Note: "This ordinance" refers to
L.L. No. 6-2008.
(2)
A franchise or revocable license granted in accordance
with the provisions of this chapter shall not be construed to grant
any rights or authorization to provide cable services in the Village,
and any person seeking to provide cable services in the Village or
seeking to construct a cable system or any part of a cable system
separate and apart from Title 27 authorized facilities used in the
provision of telecommunications services shall first obtain a separate
franchise in accordance with applicable law.
B.
Any person seeking to use the streets to construct,
operate or maintain equipment to provide telecommunications for or
in connection with the internal operations of such person's business,
residence or employment and not for or in connection with the provision
or offering of telecommunications services for sale or resale to any
person in the village shall first obtain a revocable license in accordance
with the provisions of this chapter.
C.
The Board of Trustees may grant one or more franchises
and revocable licenses in accordance with this chapter, provided that
the Board of Trustees reserves the right to modify any provision of
this chapter by amendment hereof.
D.
The grant of any franchise or revocable license shall
be made by adoption of a separate resolution by the Board of Trustees
and shall be on such terms and conditions as shall be specified in
said separate resolution and/or a franchise or license agreement between
the village and the franchisee or licensee.
E.
Any franchise or revocable license granted shall be
nonexclusive. The village specifically reserves the right to grant,
at any time, such additional franchises, revocable licenses or other
authorizations for use of the streets by any means, as the village
deems appropriate.
F.
A franchise may be granted for all or any defined
portion of the village.
G.
Limitations on grant of license.
(1)
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 village.
(2)
In the event that 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) of this subsection, then such telecommunications provider must apply for a franchise in accordance with the provisions of this chapter, 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.
A.
Subject to the provisions of this chapter, the village
may adopt rules, policies and requirements to carry out the purposes
and provisions of this chapter. Each applicant, franchisee and licensee
shall comply with such rules, policies and requirements.
B.
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 village. 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 chapter or such other authorization
as may be required by applicable law.
A.
Applications for franchises and revocable licenses
shall be submitted to the Village Manager, with a copy also to be
submitted to the Village Attorney.
B.
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 village may deem necessary or appropriate, consistent
with applicable law:
(1)
The name, address and telephone number of the applicant
and the person the village may contact concerning the application.
(2)
A description of the telecommunications services proposed
to be provided, including, without limitation, a description of facilities
and equipment within the village.
(3)
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)
Proposed financing plans for the construction and
operation of the telecommunications system by which the proposed telecommunications
services would be provided.
(7)
A description of the legal, financial, technical and
other appropriate qualifications of the applicant to hold the franchise
or revocable license.
(8)
Ownership of the applicant and identification of all
affiliated persons.
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 village and any federal, state or local governmental authority
having jurisdiction.
If an application is complete and otherwise complies with applicable law, ordinances, resolutions, rules, regulations and other directives of the village, including the provisions of this chapter, the village shall enter into negotiations with the applicant to determine whether such applicant and the village are able to reach agreement on the terms of the proposed franchise or revocable license in accordance with §§ 205-10 and 205-11 of this chapter. The village may reject any application which is incomplete or otherwise fails to comply with applicable law, ordinances, resolutions, rules, regulations and other directives of the village and any federal, state or local authority having jurisdiction.
A.
In making any determination hereunder as to any application
for a franchise or revocable license, the Board of Trustees may consider
such factors as it deems appropriate and in the public interest, provided
that such factors are consistent with applicable law, including, without
limitation:
(1)
The adequacy of the proposed compensation to be paid
to the village, including the value of any facilities and telecommunications
services offered by the applicant to the village.
(2)
The legal, financial, technical and other appropriate
qualifications of the applicant.
(3)
The ability of the applicant to maintain the property
of the village in good condition throughout the term of the franchise
or the revocable license.
(4)
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.
(5)
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.
(6)
The adequacy of the terms and conditions of the proposed
franchise or revocable license agreement to protect the public interest,
consistent with applicable law.
(7)
Any other public interest factors or considerations
that the village has a lawful right to consider and that are deemed
pertinent by the village for safeguarding the interests of the village
and the public.
B.
Consistent with applicable law, the village 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 village may consider an
applicant's proposals for addressing capacity needs and compliance
with village policies and requirements.
A.
The Board of Trustees may make such investigations
and take or authorize the taking of such other steps as the Board
of Trustees 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 Board of Trustees
may seek advice from village 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 Board of
Trustees, which may include recommendations with respect to such applications.
B.
Consistent with applicable law, upon completion of
the steps deemed appropriate by the Board of Trustees, the Board of
Trustees may grant or deny the franchise or revocable license and
may specify the conditions under which the franchise or revocable
license is granted.
A.
The terms and conditions applicable to any franchise
granted pursuant to this chapter shall be set forth in the separate
resolution granting the franchise and/or in a separate written agreement.
B.
A franchise granted pursuant to this chapter shall
not become effective until said separate resolution becomes effective
and any separate agreement is executed by both parties. Such separate
resolution or written agreement, among other things, shall address
the following subjects:
(1)
The term of the franchise.
(2)
The franchise area and the telecommunications services
to be offered.
(3)
The compensation to be paid to the village, 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 village'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 village'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 village, 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 within the village, including the connection
to any portion of applicant's telecommunications system outside the
village, 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 village departments.
(12)
Provisions to place reasonable limitations upon
the assignment or other transfer of the franchise.
(13)
Remedies available to the village to protect
the village'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 village 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 village are disrupted in
connection with the construction of improvements relating to the franchise.
(17)
Such other provisions as the village determines
are necessary or appropriate in furtherance of the public interest
consistent with applicable law.
A.
The terms and conditions applicable to any revocable license granted pursuant to this chapter shall be set forth in the separate resolution granting the revocable license and/or in a separate written agreement. A revocable license granted pursuant to this chapter shall not become effective until the separate resolution granting the license becomes effective and any separate written agreement is executed by both parties. Such separate resolution and/or written agreement shall address the same subjects listed in § 205-10 of this chapter subject to the following limitations:
(1)
The revocable license shall be for a term not to exceed
10 years from the date that the resolution granting the revocable
license becomes effective.
(2)
The revocable license shall be revocable at any time
by the village for cause or for the village's purposes.
(3)
The revocable license, together with all revocable
licenses previously granted to the applicant or affiliated persons,
shall not authorize the occupation and use of more than 2,500 linear
feet of specifically identified streets, unless the use or occupation
of the streets does not involve the offering or provision of telecommunications
services to any person in the village.
B.
In the event that an application for a revocable license would cause a telecommunications provider to exceed or fail to comply with the limits specified in Subsection A(3) of this section, then such telecommunications provider must apply for a franchise in accordance with the provisions of this chapter, 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.
If any section, subsection, sentence, clause,
phrase or other portion of this chapter is, for any reason, declared
invalid, in whole or in part, by any court, agency, commission, legislative
body or other authority of competent jurisdiction, such portion shall
be deemed a separate, distinct and independent portion. Such declaration
shall not affect the validity of the remaining portions hereof, which
other portions shall continue in full force and effect.
The Board of Trustees shall have the right to
delegate and redelegate, and to revoke any such delegation or redelegation,
from time to time, any of its rights or obligations under this chapter
to any body, organization or official of the village. Any such delegation,
redelegation or revocation, no matter how often made, shall not be
deemed an amendment to this chapter or to require the consent of any
applicant for a franchise or revocable license or franchisee or licensee.
