[Adopted 11-27-2017 by L.L. No. 3-2017]
For the purposes of this article, the following terms shall
have the following meanings:
The permanent cessation of all uses of equipment located
in a Village right-of-way.
Any utility pole that may be structurally compromised and
poses a potential threat to public safety.
The Village of Massapequa Park Department of Public Works.
Any utility pole that is located directly next to or in close
proximity to another utility pole.
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.
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.
Any person, association of persons, corporations, municipal
corporations, or other legal entity that has placed equipment in any
Village right-of-way.
To exercise physical control over, erect, construct, install,
maintain, place, repair, extend, expand, remove, occupy, locate or
relocate.
The Superintendent of the Department of Public Works.
A column or post used to support wires, cables, or service
lines for permittee.
The Village of Massapequa Park.
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.
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.
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.
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.
This article shall take effect immediately.
