[Adopted 11-27-2017 by L.L. No. 3-2017]
For the purposes of this article, the following terms shall have the following meanings:
ABANDONMENT or ABANDONED
The permanent cessation of all uses of equipment located in a Village right-of-way.
DAMAGED POLE
Any utility pole that may be structurally compromised and poses a potential threat to public safety.
DEPARTMENT OF PUBLIC WORKS
The Village of Massapequa Park Department of Public Works.
DOUBLE POLE
Any utility pole that is located directly next to or in close proximity to another utility pole.
EMERGENCY
A condition that affects the public's health, safety or welfare, and includes an unplanned out-of-service condition of preexisting equipment. Permittee shall, within 72 hours of the identification of an emergency, provide written notice to the Department of Public Works of the emergency response and the placement or maintenance of equipment in a Village right-of-way as a result of the emergency.
EQUIPMENT
Any permanent or temporary structure, wires, cables, service lines, utility pole or other mechanical or electrical device placed or maintained or to be placed or maintained directly upon, above, or below the surface of the Village right-of-way and used for the transmission or to facilitate the transmission of electricity, or voice, data, audio, video or any other information.
PERMITTEE or ENTITY
Any person, association of persons, corporations, municipal corporations, or other legal entity that has placed equipment in any Village right-of-way.
PLACE OR MAINTAIN or PLACEMENT OR MAINTENANCE or PLACING OR MAINTAINING
To exercise physical control over, erect, construct, install, maintain, place, repair, extend, expand, remove, occupy, locate or relocate.
SUPERINTENDENT
The Superintendent of the Department of Public Works.
UTILITY POLE
A column or post used to support wires, cables, or service lines for permittee.
VILLAGE
The Village of Massapequa Park.
VILLAGE RIGHTS-OF-WAY
A public right-of-way, public utility easement, highway, street, bridge, tunnel, alley or sidewalk for which the Village is the authority that has jurisdiction and control and may lawfully grant access pursuant to applicable law, and includes the surface, the air space over the surface and the area below the surface. "Village Rights-of-Way" shall not include private property.
A. 
A permittee shall not commence to place equipment in a Village right-of-way until all applicable permits have been issued by the Village of Massapequa Park Department of Public Works or other appropriate authority, except in the case of an emergency.
B. 
Permits for an emergency shall meet the requirements of the Department of Public Works. Permittees shall be responsible for the restoration of Village right-of-way to the extent required by this article.
C. 
With respect to permit applications to place new or replace existing equipment in the Village right-of-way, the Department of Public Works may require the following:
(1) 
The location and specifications of the proposed equipment, including a description of the work to be performed;
(2) 
A description of the manner in which the equipment will be installed detailing anticipated construction methods and techniques;
(3) 
A maintenance of traffic plan for any disruption of the Village right-of-way;
(4) 
A description of the plan to restore the Village right-of-way including construction details in conformance to the Village standards and specifications;
(5) 
The timetable for construction of the project or each phase thereof, including restoration of the Village right-of-way;
(6) 
Information as to anticipated disruptions in services provided by the permittee as a result of the proposed work;
(7) 
Such additional information as the Department of Public Works finds reasonably necessary with respect to the placement and maintenance of the equipment that is the subject of the permit application to review such permit application.
D. 
To the extent not otherwise prohibited by state or federal law, the Department of Public Works shall have the power to impose terms and conditions with respect to the issuance of any permit issued pursuant to this article.
E. 
To the extent not otherwise prohibited by state or federal law, the Department of Public Works shall have the power to prohibit or limit the placement of new or additional equipment within a particular area of Village right-of-way.
F. 
All equipment shall be placed or maintained so as not to unreasonably interfere with Village and other municipal public safety systems, the use of the Village right-of-way by the public and with the rights and convenience of property owners who adjoin any of the Village rights-of-way.
G. 
After completion of any placement or maintenance of equipment in Village right-of-way, a permittee shall, at its own expense, restore the Village right-of-way to its original condition before such work, to the extent possible, in conformance to Village standards and specifications. If the permittee fails to make such restoration within 30 days, or such longer period as may be agreed to by the Superintendent, following the completion of such placement or maintenance, the Department of Public Works may perform the restoration, and permittee shall be liable for all costs and expenses, including administrative expenses incurred by the Village, in connection with such restoration. Such costs and expenses may be recovered by the Village from any construction bond or security fund required by the Department of Public Works. For 12 months following the original completion of the work, the permittee shall guarantee its restoration work and shall correct any restoration work that does not satisfy the requirements of this article at its own expense. Failure to make such restoration within 30 days, or such longer period as may be granted by the Superintendent shall subject the permittee to the penalties described herein.
H. 
The Department of Public Works may promulgate reasonable rules and regulations concerning the placement or maintenance of equipment in the Village right-of-way consistent with this article and other applicable law.
I. 
A permit from the Department of Public Works constitutes authorization to undertake only certain activities in Village rights-of-way in accordance with this article, and does not create a property right or grant authority to impinge upon the rights of others who may have an interest in the Village right-of-way, nor does it relieve the permittee of its duty to obtain all other necessary permits, licenses and authority and to comply with all other applicable laws, rules and regulations.
A. 
The Department of Public Works may suspend a permit without a fee refund for work in the Village right-of-way for one or more of the following reasons:
(1) 
Violation of permit conditions, this article, the rules and regulations promulgated by the Superintendent pursuant to this article, or any other applicable Village ordinances, laws, rules or regulations governing the placement or maintenance of equipment in the Village right-of-way;
(2) 
Misrepresentation or fraud by permittee in a permit application to the Village.
A. 
A permittee shall, at its sole cost and expense, indemnify, hold harmless, and defend the Village, its officials, boards, members, agents, and employees, against any and all claims, suits, causes of action, proceedings, judgments for damages or equitable relief, and costs and expenses incurred by the Village arising out of the placement or maintenance of equipment in the Village right-of-way, regardless of whether the act or omission complained of is authorized, allowed or prohibited by this article; provided, however, that a permittee's obligation hereunder shall not extend to any claims caused by the negligence, gross negligence or willful acts of the Village. This provision includes, but is not limited to, the Village's reasonable attorneys' fees incurred in defending against any such claim, suit or proceeding. The Village shall notify the permittee, in writing, within a reasonable time of the Village receiving notice, of any issue it determines may require indemnification. Nothing in this section shall prohibit the Village from participating in the defense of any litigation by its own counsel and at its own cost if in the Village's reasonable belief there exists or may exist a conflict, potential conflict or appearance of conflict.
B. 
The indemnification provisions of this article shall survive and be in effect after the termination or cancellation of a permit.
A. 
Prior to issuing a permit where the work under the permit will require restoration of Village Right-of-way, the Department of Public Works may, at its sole discretion, require a construction bond, other surety and/or cash escrow, as a condition to granting such permit, to secure the restoration of the Village right-of-way.
B. 
The rights reserved by the Village with respect to any construction bond or cash escrow established pursuant to this article are in addition to all other rights and remedies the Village may have under this article, or at law or equity.
C. 
The rights reserved to the Village under this article are in addition to all other rights of the Village, whether reserved in this article, or authorized by other law, and no action, proceeding or exercise of a right with respect to the construction bond will affect any other right the Village may have.
A. 
As a condition to the granting of any permit, permittees may be required to file with the Village an annual bond, cash deposit or irrevocable letter of credit in a sum to be determined by the Department of Public Works having as surety a company qualified to do business in the State of New York, and acceptable to the Superintendent of the Department of Public Works, which shall be referred to as the "security fund." The security fund shall be maintained until the transfer, sale, assignment, or removal of all equipment located in the Village right-of-way.
B. 
The security fund shall be furnished annually or as frequently as necessary to provide a continuing guarantee of the permittee's full and faithful performance at all times. In the event a permittee fails to perform its duties and obligations imposed upon the permittee by the provisions of this article, there shall be recoverable, jointly and severally from the principal and surety of the security fund, any damage or loss suffered by the Village as a result, including the full amount of any compensation, indemnification or cost of removal, relocation or abandonment of the equipment in the Village right-of-way, plus a reasonable allowance for attorneys' fees and administrative expenses. Notwithstanding the foregoing, the Department of Public Works may, in its discretion, not require a security fund or may accept a corporate guarantee of the permittee or its parent company.
To the extent not otherwise prohibited by state or federal law, the Department of Public Works shall have the power to require the removal of equipment from a Village right-of-way, it being the intent of the Village to limit the use of Village right-of-way to nonredundant equipment actively in use. Failure to remove any equipment if required by the Department of Public Works within a time period specified by the Department of Public Works may result in penalties provided for in § 298-58 of this article.
A. 
Double poles.
(1) 
When the Department of Public Works issues a permit for the installation of a utility pole that is directly next to or in close proximity to another utility pole in the Village right-of-way, the permittee shall within five business days of the installation of the new utility pole notify any other entity that has equipment on that utility pole that such entity has 30 days to remove such equipment from that utility pole. A copy of such notification shall be provided to the Department of Public Works. Any entity receiving such notification shall have 30 days to remove any equipment from the utility pole that is to be replaced and shall provide written notice to the Department of Public Works of its intention to relocate its equipment on the new pole. This thirty-day deadline will be tolled for any entity that is prevented from removing its equipment due to the presence of equipment owned by a different entity until all such interfering equipment shall have been removed. The last entity to remove such equipment shall remove the utility pole that is to be replaced within 30 days of the removal of its equipment.
(2) 
The permittee shall notify the Department of Public Works of any entity that has failed to remove its equipment within the required 30 days of notification and any applicable tolling periods. Failure to remove any equipment from the pole that is to be replaced pursuant to this section may result in penalties provided for in § 298-58 of this article.
(3) 
Any permittee that submits proof to the Department of Public Works that its failure to remove its equipment from the utility pole that is to be replaced was due to the failure of another entity to remove its equipment from that pole shall not be liable for any penalty and such permittee's thirty-day deadline to remove equipment shall be tolled until the interfering equipment is removed by such other entity. However, any entity that due to its placement of equipment on the utility pole that is to be replaced prohibits or interferes with any other entity from the removal of its equipment or from the removal of the pole in accordance with this section shall be liable for double the penalty provided for in § 298-58 of this article.
(4) 
Failure to remove the utility pole that is to be replaced and any equipment that is located on such utility pole may result in penalties provided for in § 298-58 of this article.
B. 
Damaged poles.
(1) 
When the Department of Public Works determines that a utility pole in a Village right-of-way may be damaged and poses a potential threat to public safety, the Department of Public Works shall notify the owner or permittee, in writing, that it must be removed and replaced within 72 hours, or such longer period as may be agreed to by the Superintendent.
(2) 
Failure to remove the damaged pole and any equipment that is located on such pole may result in penalties provided for in § 298-58 of this article.
A. 
Upon abandonment of equipment owned by a permittee in the Village right-of-way, the permittee shall notify the Village within 72 hours.
B. 
Upon abandonment of equipment owned by a permittee in the Village right-of-way, the permittee shall remove such equipment within 30 days.
C. 
The Village may direct the permittee, by written notice, to remove all or a portion of such abandoned equipment at the permittee's sole expense.
D. 
If the permittee fails to remove all or any portion of abandoned equipment as directed by the Village within a reasonable time period as may be required by the Village under the circumstances, the Village may perform such removal and charge double the cost of the removal against the permittee.
E. 
Failure to notify the Village of abandoned equipment shall constitute a violation of this article and subject the permittee to penalties as set forth in § 298-58 of this article.
F. 
Upon Village notifying permittee of abandoned equipment, permittee must remove abandoned equipment within 30 days.
G. 
Failure to remove equipment owned by a permittee in the Village right-of-way within 30 days of abandonment shall constitute a violation of this article and subject the permittee to penalties as set forth in § 298-58 of this article.
A. 
A permittee shall not place or maintain its equipment so as to interfere with, displace, damage or destroy any facilities or underground utilities, including but not limited to sewers, gas or water mains, storm drains, pipes, cables or conduits of the Village or any other permittee's facilities lawfully occupying the Village right-of-way.
B. 
The Department of Public Works shall have the right to make such inspections of equipment placed or maintained in Village right-of-way as it finds necessary to ensure compliance with this article.
A. 
A permittee's failure to comply with the provisions of this article shall constitute a violation of this article and subject the permittee to penalties defined herein.
B. 
Before assessing any fine or penalty pursuant to this article, the Department of Public Works shall give written notice of the violation and its intention to assess such fines or penalties, which notice shall contain a description of the alleged violation. Following the receipt of such notice, the permittee shall have 30 days to either: a) cure the violation to the Village's satisfaction and the Village shall make good faith reasonable effort to assist in resolving the violation; or b) file an appeal, as described herein, with the Village to contest the alleged violation or to request additional time to cure the violation. If no appeal is filed and if the violation is not cured within the thirty-day period, the Village may assess all fines and penalties owed, beginning on the first day of the violation.
C. 
Appeals to challenge a notice of violation issued by the Department of Public Works shall be made in writing and be directed to the Superintendent, who shall, after due deliberation, accept, reject or modify the notice of violation.
D. 
If the permittee fails to remedy an alleged violation within a reasonable time period as may be required by the Department of Public Works, the Village may perform such remedial actions and charge the cost of the removal, including the cost of any administrative expenses incurred by the Village, against the permittee.
E. 
Failure of the Village to enforce any requirements of this article shall not constitute a waiver of the Village's right to enforce that violation or subsequent violations of the same type or to seek appropriate enforcement remedies.
In the event a permittee's performance of or compliance with any of the provisions of this article is prevented by a cause or event not within the permittee's control, such inability to perform or comply shall be deemed excused and no penalties or sanctions shall be imposed as a result; provided, however, that such permittee uses all practicable means to expeditiously cure or correct any such inability to perform or comply. For purposes of this article, causes or events not within a permittee's control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or court.
Any person, association of persons, corporation, municipal corporation, or any other legal entity who uses the equipment of a permittee, other than the permittee that owns the equipment, shall not be entitled to any rights to place or maintain such equipment in excess of the rights of the permittee that places or maintains the equipment.
A. 
Any violation of this article shall be punishable by a fine of $500. Each additional day or part of a day in which a violation continues shall constitute a separate violation subject to a fine of $100.
B. 
Failure to perform restoration activities as required by this article shall be punishable by a fine not to exceed $500 in addition to the repayment of any costs incurred by the Village. Each additional day or part of a day in which a violation continues shall constitute a separate violation subject to a fine of $100.
C. 
In addition to any charges imposed pursuant to this article, there shall be a penalty of three times the amount of the applicable permit fee for any violation of the terms and conditions or requirements of a permit issued by the Department of Public Works pursuant to this article or for any actions improperly undertaken without obtaining such a permit from the Department of Public Works in violation of this article.
The Department of Public Works shall maintain on the official website of Massapequa Park Village a webpage to allow residents to report to the Department of Public Works incidents of abandoned, damaged or doubled utility poles.
If any clause, sentence, paragraph, subdivision, section or part of this article or the application thereof to any permittee, individual, corporation, firm, partnership, entity or circumstance shall be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such order or judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section or part of this article or in its application to the permittee, individual, corporation, firm, partnership, entity or circumstance directly involved in the controversy in which order or judgment shall be rendered.