(A) Exceptions to applicability. Nothing in this subchapter authorizes a person to collocate small wireless facilities on:
(1) Property owned by a private party or property owned or controlled by the village or another unit of local government that is not located within rights-of-way, or a privately owned utility pole or wireless support structure without the consent of the property owner;
(2) Property owned, leased or controlled by a park district, forest preserve district or conservation district for public park, recreation or conservation purposes without the consent of the affected district, excluding the placement of facilities on rights-of-way located in an affected district that are under the jurisdiction and control of a different unit of local government as provided by the Illinois Highway Code; or
(3) (a) Property owned by a rail carrier registered under § 18(c)-7201 of the State Vehicle Code, Metra Commuter Rail or any other public commuter rail service or an electric utility as defined in § 16-102 of the Public Utilities Act, without the consent of the rail carrier, public commuter rail service or electric utility. The provisions of this subchapter do not apply to an electric or gas public utility or such utility’s wireless facilities if the facilities are being used, developed and maintained consistent with the provisions of subsection (i) of § 16-108.5 of the Public Utilities Act.
(b) For the purposes of this section, “public utility” has the meaning given to that term in § 3-105 of the Public Utilities Act. Nothing in this subchapter shall be construed to relieve any person from any requirement:
1. To obtain a franchise or a state-issued authorization to offer cable service or video service; or
2. To obtain any required permission to install, place, maintain or operate communications facilities, other than small wireless facilities subject to this subchapter.
(B) Pre-existing agreements.
(1) Existing agreements between the village and wireless providers that relate to the collocation of small wireless facilities in the right-of-way, including the collocation of small wireless facilities on village utility poles, that are in effect on June 1, 2018, remain in effect for all small wireless facilities collocated on the village’s utility poles pursuant to applications submitted to the village before June 1, 2018, subject to applicable termination provisions contained therein. Agreements entered into after June 1, 2018 shall comply with this subchapter.
(2) A wireless provider that has an existing agreement with the village on the effective date of the act may accept the rates, fees and terms that the village makes available under this subchapter for the collocation of small wireless facilities or the installation of new utility poles for the collocation of small wireless facilities that are the subject of an application submitted two or more years after the effective date of the Act by notifying the village that it opts to accept such rates, fees and terms. The existing agreement remains in effect, subject to applicable termination provisions, for the small wireless facilities the wireless provider has collocated on the village’s utility poles pursuant to applications submitted to the village before the wireless provider provides such notice and exercises its option under this paragraph.
(C) Abandonment. A small wireless facility that is not operated for a continuous period of 12 months shall be considered abandoned. The owner of the facility shall remove the small wireless facility within 90 days after receipt of written notice from the village notifying the wireless provider of the abandonment.
(1) The notice shall be sent by certified or registered mail, return receipt requested, by the village to the owner at the last known address of the wireless provider. If the small wireless facility is not removed within 90 days of such notice, the village may remove or cause the removal of such facility pursuant to the terms of its master small wireless facilities attachment agreement or through whatever actions are provided for abatement of nuisances or by other law for removal and cost recovery.
(2) A wireless provider shall provide written notice to the village if it sells or transfers small wireless facilities within the jurisdiction of the village. Such notice shall include the name and contact information of the new wireless provider. Any such transfer shall be subject in all respects to the terms of the master small wireless facilities attachment agreement.
(D) Dispute resolution. The County Circuit Court shall have exclusive jurisdiction to resolve all disputes arising under the Small Wireless Facilities Deployment Act. Pending resolution of a dispute concerning rates for collocation of small wireless facilities on municipal utility poles within the right-of-way, the village shall allow the collocating person to collocate on its poles at annual rates of no more than $200 per year per municipal utility pole, with rates to be determined upon final resolution of the dispute.
(E) Indemnification. A wireless provider shall indemnify and hold the village harmless against any and all liability or loss from personal injury or property damage resulting from or arising out of, in whole or in part, the use or occupancy of the village improvements or right-of-way associated with such improvements by the wireless provider or its employees, agents or contractors arising out of the rights and privileges granted under this subchapter and the Act. A wireless provider has no obligation to indemnify or hold harmless against any liabilities and losses as may be due to or caused by the sole negligence of the village or its employees or agents. A wireless provider shall further waive any claims that they may have against the village with respect to consequential, incidental or special damages, however caused, based on the theory of liability.
(F) Insurance.
(1) The wireless provider shall carry, at the wireless provider’s own cost and expense, the following insurance:
(a) Property insurance for its property’s replacement cost against all risks;
(b) Workers’ compensation insurance, as required by law; and
(c) Commercial general liability insurance with respect to its activities on the village improvements or rights-of-way to afford minimum protection limits consistent with its requirements of other users of village improvements or rights-of-way, including coverage for bodily injury and property damage. The wireless provider shall include the village as an additional insured on the commercial general liability policy and provide certification and documentation of inclusion of the village in a commercial general liability policy with its permit application, and in any event, prior to the commencement of installation of any small wireless facility.
(2) A wireless provider may self-insure all or a portion of the insurance coverage and limit requirement required by the village. A wireless provider that self-insures is not required, to the extent of the self-insurance, to comply with the requirement for the name of additional insureds under this section. A wireless provider that elects to self-insure shall provide to the village evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage limits required by the village.
(Ord. 2018-16, passed 7-16-2018)