[Added 8-14-2020 by L.L. No. 4-2020]
Terms used in this article shall have the following meanings,
whether or not the terms are capitalized. Unless otherwise expressly
stated, terms not defined in this article shall be construed consistent
with Title 47 of the United States Code, and, if not defined therein,
with their common and ordinary meaning.
Poles, wires, cables, equipment, and other facilities located
above the surface of the ground, including their underground supports
and foundations. Such term does not include private driveways, newspaper
vending machines, street banners, canopies or other minor obstructions
located in the rights-of-way.
A person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control
with another person.
The Cable Communications Policy Act of 1984, as amended by
the Cable Television Consumer Protection and Competition Act of 1992
and the Telecommunications Act of 1996, and as hereafter amended (47
U.S.C. § 521 et seq., as hereafter amended).
Right-of-way use agreement required pursuant to the Cable
Act and the Village Code for any cable franchise issued by the Village.
A fee paid by a cable operator pursuant to a cable franchise
agreement for the cable operator's use of the Village's
rights-of-way. The fee is calculated as a percentage of the cable
operator's gross revenues from the operation of the cable system
to provide cable services in the Village.
Right-of-way use authorization pursuant to this chapter authorizing
a person to own, construct, operate and maintain a cable system to
provide cable service or an OVS system to provide OVS service within
the Village.
A person providing or offering to provide cable service over
a cable system within the Village as that term is defined in the Cable
Act.
The transmission to subscribers of video programming or other
programming service and subscriber interaction, if any, which is required
for the selection or use of such video programming or other programming
service .
Facilities consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within the Village;
but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves subscribers without using any right-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of the Communications Act of
1934, as amended, except that such facility shall be considered a
cable system [other than for purposes of 47 U.S.C. § 541(c)]
to the extent such facility is used in the transmission of video programming
directly to subscribers;
An open video system that complies with 47 U.S.C. § 573;
or
Any facilities of any electric utility used solely for operating
its electric utility system.
A reference to a cable system refers to any part thereof.
This definition of "cable system" shall in no way be deemed
to circumscribe or limit the valid authority of the Village to regulate
or authorize the facilities and/or services of any other telecommunications
provider or other person that owns, constructs, operates, or maintains
facilities in the right-of-way.
A certificate of public convenience issued by the New York
Public Service Commission to a public utility.
The Communications Act of 1934, 47 U.S.C. § 151
et seq., as amended and as hereafter amended.
The Department of Public Works of the Village of Kiryas Joel.
A condition that:
Conduit, pipes, cables, wires, lines, towers, optic fiber,
antennas, poles, associated equipment and appurtenances, and any other
facilities located in the right-of-way and designed, constructed,
and/or used, by telecommunications providers, nonmunicipal public
utilities, or other persons for transmitting, transporting, or distributing
communications, telecommunications, electricity, natural gas or manufactured
gas, oil, gasoline, steam, or any other form of energy, signal or
substance.
A right-of-way use authorization pursuant to this chapter
that authorizes a person to own, construct, operate and maintain a
cable system to provide cable service or an OVS system to provide
OVS service within the Village.
A cable franchise agreement or OVS agreement.
A person that is issued a franchise by the Village.
The offering of a capability for generating, acquiring, storing,
transforming, processing, retrieving, utilizing, or making available
information via telecommunications (whether over a cable system, telecommunications
system, open video system, or any other type of facilities), and includes
electronic publishing, but does not include any use of any such capability
for the management, control, or operation of a telecommunications
system or the management of a telecommunications service.
Any corporation, company, association, joint stock company,
firm, partnership, limited liability company, or other entity; municipal,
industrial development, housing, redevelopment, and other authority
or corporation established pursuant to statutes of the State of New
York; and any individual not regulated as a public utility by the
Public Service Commission.
Within the meaning of this article, shall have the same meaning
and shall include the same obstructions as specified in New York Highway
Law § 319(1).
Facilities consisting of a set of transmission paths and
associated signal generation, reception, and control equipment that
is designed to provide video programming services. Cable service,
and/or services similar to cable service to multiple subscribers within
the Village and which the Federal Communications Commission or its
successor has certified as compliant with Part 76 of its rules, 47
CFR Part 76.1500 et seq., as amended from time to time; provided that
an open video system is not a system of telecommunications facilities
and does not provide telecommunications service to the extent that
it provides only video services; and provided further that an open
video system means only those facilities that are operated by a person
authorized to provide video services pursuant to Section 653 of the
Communications Act of 1934, as amended, 47 U.S.C. § 573,
where such person is properly certificated to provide such services
pursuant to applicable Federal Communications Commission regulations.
Video programming services that are provided over an open
video system.
The recipient of a right-of-way use permit or cable franchise that is issued by the Village pursuant to this chapter, and persons holding existing franchises, special ordinances, or other authorizations that are subject to the transitional provisions set forth in § 124-9, including the Village, its departments, agencies, and authorities.
Corporations, companies, associations, joint stock companies,
firms, partnerships, limited liability companies, and other entities;
industrial development, housing, redevelopment, and other authorities
and corporations established pursuant to statutes of the State of
New York; and individuals.
The written regulations, standards, operations and/or courses
of action established by the Village to implement the provisions of
this chapter. The preparation and promulgation of Policies and Procedures
are solely the function of the Village and not the employees, agents
or assignees of the Village.
Any entity which is operating as a public utility as defined
under the New York Public Service Code, and is subject to regulation
by the NYPSC, regardless of whether or not the entity has been issued
a certificate of public convenience by the New York Public Service
Commission.
The state administrative agency or lawful successor thereto,
authorized to regulate and oversee public utilities and telecommunications
providers and telecommunications services in the State of New York,
to the extent provided by law.
Shall be defined as that term is defined in the New York
Public Service Code as of the effective date of this chapter, and
as hereafter amended.
A license, right-of-way use permit, cable franchise, or OVS
franchise issued pursuant to this chapter.
A right-of-way use permit issued pursuant to this chapter.
The surface of and space above and below any real property
in the Village in which the Village has a regulatory interest, or
interest as a trustee for the public, as such interests now or hereafter
exist, including, but not limited to, all streets, highways, avenues,
roads, alleys, sidewalks, tunnels, viaducts, bridges, skyways, or
any other public place, area or property under the control of the
Village, and any unrestricted public or utility easements established,
dedicated, platted, improved or devoted for utility purposes but excluding
lands other than streets that are owned by the Village . The phrase
"in the right(s)-of-way" means in, on, over, along, above and/or under
the right(s)-of-way.
Any telecommunications service, cable service, OVS service,
video programming service, information service, utility service (including,
but not limited to, electric, gas, water, or steam service), or other
form of service provided by means of facilities located in the right-of-way.
A strip of land or part thereof within the right-of-way,
whether dedicated or not, that is intended or used for vehicular and
pedestrian traffic. The phrase "in the street(s)" means in, on, over,
along, above and/or under the street(s).
A permit for excavation of a street for the construction
or installation of facilities in any right-of-way in the Village.
Any cable system, OVS system, telecommunications system,
or integral part thereof.
The transmission, 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.
The plant, equipment and property within the Village used
to transmit, receive, distribute, provide or offer telecommunications
service, including fiber optic cable.
A person who provides telecommunications service over telecommunications
facilities.
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.
A system that offers telecommunications service.
Utility and telecommunications facilities located under the
surface of the ground, excluding the underground foundations or supports
for aerial facilities.
The Village of Kiryas Joel, New York.
The Village Attorney of the Village of Kiryas Joel.
The Code of the Village of Kiryas Joel, New York.
The Village Engineer of the Village of Kiryas Joel. Except
for the preparation and promulgation of Policies and Procedures, such
term shall include the employees, agents and assignees of the Village
Engineer.
All real property now or hereafter owned by the Village whether
in fee ownership or other interest.
All construction work performed by the Village or any of
its departments, either with its own personnel or under contract,
including repair, alteration, replacement, or maintenance of facilities
owned, operated, maintained, or controlled by the Village or for which
the Village is responsible.
All public utilities regulated by the Public Service Commission
owning or operating facilities in the Village's rights-of-way
shall comply with the requirements set forth herein.
All public utilities shall be deemed to have a license from
the Village to occupy the rights-of-way in accordance with the requirements
of this chapter, the Highway Law of the State of New York and the
Village Law of the State of New York.
A.
All utilities seeking to commence service within the Village shall be initially required to file with the Village Board a comprehensive Community Service Master Plan showing how the utility's services will be distributed throughout the Village so as to provide potential service to all residents and demonstrating a commitment to have a good relationship with the Village and the Kiryas Joel community. On January 2 of each year, all regulated public utilities providing service within the Village shall be required to file with the Village Board an updated Community Service Master Plan indicating any changes to the utility's service infrastructure in the Village and demonstrate compliance with its Utility Tax obligations contained in Chapter 129, Article I, of the Village Code. The Community Service Master Plan is subject to review and approval of the Board of Trustees.
B.
By January 2 of each year, or at such other time as the Village and
utilities may agree, each public utility shall provide the Village
Board and the Department of Public Works with an Annual Work Plan
and schedule (including plans and projected start and finish dates
for each project) of its planned construction activities for the following
year which may affect the rights-of-way. The schedule shall depict
all planned construction activities the utility is planning to perform
within the year The utility shall mitigate impacts upon adjoining
property owners and shall collaborate with the Superintendent of Public
Works to coordinate and take into consideration other work planned
to be performed in areas of the Village during the same time. The
Annual Work Plan shall be subject to the approval of the Village Mayor
or his designee.
On or before March 1 of every even-numbered year, each public
utility shall submit to the Department two paper copies and one electronic
copy of as-built map or maps and engineering specifications as set
forth in the Policies and Procedures depicting and certifying the
location of all its existing facilities within the right of-way. Such
electronic and paper maps and engineering specifications shall be
submitted in a format and include the information required by the
Village. If the maps are not provided in the required format, then
the utility shall reimburse the Village for the cost of converting
paper maps into electronic form or the cost of converting electronic
maps in another format into the required format. Such maps are, and
shall remain, confidential documents and are exempt from public disclosure
under New York's Freedom of Information Law, New York Public
Officers Law § 87. After submission of the as-built maps
required under this section, each public utility having facilities
in the Village rights-of-way shall update such maps as required under
this chapter.
In addition to the inspections during construction provided in § 124-18, the Village may conduct inspections of the Village rights-of-way in order to ensure that utility facilities located within such rights-of way do not constitute a public safety hazard, and remain in compliance with the standards set forth by the Public Service Commission. Such inspections shall be limited to establishing whether such facilities meet relevant PSC standards, and comply with such Village construction standards as they relate to the opening and closing of Village streets, curbs, and sidewalks, as provided under Chapter 124, Article II, of the Village Code. In the event that the Village determines that any facilities of a utility are not in compliance with such standards, then the Village may bring a complaint against such utility before the Public Service Commission, in accordance with established PSC procedures . The Village may also elect, in its discretion, to notify the utility of the existence of any noncompliant facilities, in order to abate such violations without the need for the filing of a formal PSC complaint. If the Village decides, in its discretion, that it must perform a second inspection of any facilities either being constructed or already installed by such utility, then such utility shall pay the cost of such second inspection.
A.
Street opening permits. Except in the case of an emergency, no utility shall perform any street excavation in the rights-of-way without first obtaining a street opening permit and paying a permit fee pursuant to Chapter 124, Article II, of the Village Code. No utility shall perform curb and sidewalk construction replacement or repair without first obtaining a curb and sidewalk permit and paying a permit fee pursuant to Chapter 124 of the Village Code.
B.
Construction standards. Construction standards shall include those determined by the Public Service Commission for the installation of facilities in Village rights-of-way, as well as such Village construction standards as they relate to the opening and closing of Village streets, curbs, and sidewalks, as provided under Chapter 124 of the Village Code. Compliance with construction requirements pursuant to PSC related standards shall remain within the sole and exclusive jurisdiction of the PSC. Compliance with construction requirements pursuant to Village standards shall remain within the jurisdiction of the Village. The Village shall retain the right to file formal complaints pursuant to PSC-related construction.
C.
Traffic Control. The applicant must provide the traffic control and safety measures required by § 124-52.
D.
Security. Each utility opening, closing, or excavating Village streets, curbs, and sidewalks as provided under Chapter 124 of the Village Code in conjunction with the utility's construction or maintenance activities in the ROW shall furnish to the Village, at the utility's expense, a blanket performance bond/indemnity agreement. Regulated public utilities must post a blanket performance bond in the amount determined by the Village Engineer to guarantee the satisfactory completion of work performed and issued under this chapter, including restoration of the streets. Such bond shall be in the form of cash or other security acceptable to the Village. Such bond shall be in effect and maintained at such level at all times. Such utilities shall also keep on file an indemnification agreement in a form satisfactory to the Village Attorney holding the Village harmless from any loss, damage or injury arising out of their activities.
E.
Maintenance bond. The applicant must post a maintenance bond in the
amount determined by the Village Engineer, which shall be in the form
of cash or other security acceptable to the Village. The period of
maintenance shall be considered as a period of 24 months after the
date of final completion, as determined by the Village Engineer, of
the work to be done pursuant to the terms of the permit; except, however,
that in the event that the termination of said twenty-four-month period
falls within the months of December, January, February, March or April,
then the period of maintenance shall be considered as extending until
the first day of the following May.
F.
Insurance. The applicant shall maintain insurance, with a reputable insurance company authorized to do business in the State of New York, indemnifying the Village from and against any and all claims for injury or damage to persons or property, both real and personal, caused by the construction requiring the opening or closing of Village streets, sidewalks, or ROW in accordance with Chapter 124 of the Village Code. The amounts of such coverage shall be as determined by the Village's Attorney. The Village shall be designated as an additional insured under each of the insurance policies. The utility shall not cancel any required insurance policy without first obtaining alternative insurance in conformance with this section. Utilities undertaking work in the Village rights-of-way shall provide the Village with at least 30 days' advance written notice of any material changes or cancellation of any required insurance policy.
H.
Relocation or removal of facilities.
(1)
Within 60 days following written notice from the Village, or such
longer period as the Village determines is reasonably necessary or
such shorter period in the case of an emergency, a utility shall temporarily
or permanently remove, relocate, change or alter the position of any
facilities within the right-of-way, whenever the Village, consistent
with applicable PSC regulations, shall have determined that such removal,
relocation, change or alteration is reasonably necessary under the
following circumstances:
(a)
The construction, repair, maintenance, or installation of any
Village or other public improvement in the right-of-way;
(b)
The operations of the Village or other governmental entity in
the right-of-way;
(c)
The vacation of a street or the release of a utility easement;
or an emergency as determined by the Village.
(d)
The abandonment of utility facilities.
(2)
Utilities must relocate and remove facilities consistent with the
regulations and standards of the PSC, New York State Village Law and
the New York State Highway Law 319 and the Village of Kiryas Joel
Code.
(3)
Should the Utility fail to relocate and remove its facilities or complete construction in a timely and responsible manner such that they become obstructions to the use of the highway (streets and sidewalks) by the traveling public, the Village shall move and reset, or cause to have moved and reset, such facilities and/or correct such construction defects. The expenses thereby incurred, including the costs of compliance with the provisions of this article, and a surcharge equal to 20% of the costs incurred by the Village shall be charged against such owner, occupant or company, and, if unpaid upon demand, levied and collected, as provided in Chapter 6, Article II, of the Village of Kiryas Joel Code.
I.
Damage to facilities or property. A utility, including any contractor
working for a utility, shall avoid damage to any facilities and/or
public or private property. If any facilities and/or public or private
property are damaged by the utility, including any contractor working
for the utility, the utility shall promptly repair and restore such
property within 10 business days. The utility shall utilize the New
York One Call System prior to any disturbance of the rights-of-way
and shall adhere to all other requirements of 16 NYCRR Part 753.
J.
Facilities maps. Each utility issued a street opening permit shall
submit to the Village, not later than 30 days after completion of
the permitted construction (or any part thereof, if required by the
Village), two paper copies and one electronic copy of updated as-built
map or maps and engineering specifications as set forth in the Policies
and Procedures depicting and certifying the location of the new facilities
constructed or updated. Such documents shall be submitted in a format
and include the information required by the Village in the Policies
and Procedures. If the maps are not provided in the required format,
then the utility shall reimburse the Village for the cost of converting
paper maps into electronic form or the cost of converting electronic
maps in another format into the required format. Such maps are exempt
from public disclosure under New York's Freedom of Information
Law, New York Public Officers Law § 87.
K.
Field marking. Each utility shall field mark the locations of its
underground facilities upon request by other utilities or the Village,
consistent with the requirements of 16 NYCRR Part 753 and at no cost
to the Village.
A.
Compensation for right-of-way use. Occupancy of Village rights-of-way
by any utility is subject to the Village's right to fix annually
a fair and reasonable compensation, which shall be directly related
to the Village's actual right-of-way maintenance costs.
B.
Annual right-of-way maintenance fee. Each utility with facilities
in the Village's rights-of-way shall pay an annual fee to compensate
the Village for its costs incurred in connection with the ongoing
use and occupancy of Village rights-of-way. The annual right-of-way
maintenance fee shall be determined by the Village and authorized
by resolution of the Village Board and shall be based on the Village's
actual ROW maintenance costs. The annual right-of-way maintenance
fee shall be fixed on a per-linear-foot basis for underground facilities
and on a per-linear-foot basis for aerial facilities. If subject to
a cable franchise agreement, the utility shall not be required to
remit both a cable franchise fee amount and an annual right-of-way
maintenance fee to the Village; such utility shall pay the higher
of the two fees to the Village.
In the event that any part of these regulations are for any
reason modified or invalidated, the other portions of said regulations
not affected thereby shall remain in full force and effect.
The Board of Trustees hereby declares its legislative intent
to supersede any provision of any local law, rule, or regulation or
provision of the law inconsistent with this article. The provisions
of law intended to be superseded include all the Village Law and any
other provision of law that the Village may supersede pursuant to
the Municipal Home Rule Law and the Constitution of the State of New
York. The courts are directed to take notice of this legislative intent
and apply it in the event the Village has failed to specify any provision
of law that may require supersession. The Board of Trustees hereby
declares that it would have enacted this chapter and superseded such
inconsistent provision had it been apparent.
