[Amended 8-14-2020 by L.L. No. 5-2020]
The purpose of this article is to regulate excavations in public
streets, easements, rights-of-way, sidewalks and streets, which are
maintained by the Village, through a permit process designed to ensure
the safety, operation and proper completion of the work.
As used in this article, the following terms shall have the
meanings indicated:
Any person, as defined herein, who makes application for
a permit.
The opening along the curbline at which point vehicles may
enter or leave the street.
The Department of Public Works in the Village or its authorized
representative.
A streetway intended to provide vehicular access from a Village
street to a house or other development.
Any unforeseen circumstance or occurrence, the existence
of which constitutes a clear and immediate danger to persons or properties.
Any natural person, partnership, firm, association, corporation,
utility corporation or authority created pursuant to law.
A public street, public easement, public right-of-way, sidewalk
or public street which is accepted or maintained by the Village.
Any excavation, cutting, boring or other construction that
requires entry into or removal of part or all of the surface of a
street.
The Village of Kiryas Joel, County of Orange, State of New
York.
A.
Permit required for openings. No person or governmental entity other
than the Village of Kiryas Joel or the Town of Palm Tree shall make
any excavation or otherwise open any Village street without first
obtaining a permit from the DPW as hereinafter regulated; provided,
however, that any person maintaining any facilities in or under the
surface of any street may proceed with an opening without a permit
when emergency circumstances demand the work to be done immediately,
provided that the permit could not reasonably and practically have
been obtained beforehand. The person shall thereafter apply for a
permit on the first regular business day on which the office of the
DPW is open for business, and said permit shall be retroactive to
the date when the work was begun.
B.
Applications for permits for street openings. An application shall
be filed in triplicate with the DPW and shall be accompanied by a
plan showing in detail the following information as appropriate:
(1)
Provide the name, address and direct contact information of the applicant;
(2)
Provide the name, address and direct contact information of the party
who will be performing the excavation work;
(3)
Provide a statement of the location, nature, purpose, and extent
of the proposed excavation;
(4)
Provide a statement of whether there are any buried pipes or lines
in the street in the area of the excavation and, if so, what measures
will be taken to avoid damaging the same.
(5)
Set forth the proposed dates and times during which the proposed
excavation will be conducted; the Village may modify the dates and
times to ensure public safety and convenience .
(6)
Set forth the applicant's plans for restoring the street upon
completion of the excavation; and
(7)
All applications for excavation shall include a set of engineering
plans depicting all work to be performed in the course of the excavation.
C.
The applicant shall be responsible for all engineering fees necessarily
incurred by the Village in processing the application for a street
opening permit and overseeing the work thereunder and shall provide
the undertakings and escrow deposits required by this article.
D.
The DPW shall file a copy of the application with the Village Clerk
and Village Engineer, together with a written report of action taken
by the DPW.
A.
Prior to issuance of a permit for street opening, the applicant shall
pay into escrow with the Village Clerk such amount of funds as shall
be determined by the Village Board or its designee as reasonably necessary
to pay the engineering fees incurred by the Village in reviewing and
processing the permit application and conducting inspections of the
work performed under it. The Village shall draw on such escrow account
as it incurs engineering costs, and shall render a statement of the
account balance to the applicant upon request. Such escrow account
must be replenished by the applicant upon request of the Village when
the balance therein reaches 50% or less of the initial deposit. Audit
of charges upon the escrow account shall be conducted upon written
request by the applicant.
B.
Prior to issuance of a permit for street excavation, the applicant
shall post with the Village Clerk, by letter of credit in favor of
the Village of Kiryas Joel or cash deposit, an undertaking in such
amount as shall be established by the Village Board or its designee
based upon a reasonable approximation of the cost of repair of the
potential damage presented by the excavation, out of which the cost
of any damage caused by the excavation caused to adjoining property,
sidewalks, drainage facilities, public utilities and private lines
in the street shall be paid in the event that the applicant fails
to make repairs upon reasonable written notice from the Village.
C.
Prior to issuance of any permit for street opening, the applicant
shall deposit with the Village Clerk an undertaking by letter of credit
or cash deposit in favor of the Village of Kiryas Joel as security
that the proposed excavation work will be carried out in conformity
with the approved plans and that, upon completion of the excavation,
the restoration of the street will be properly accomplished.
D.
The amount of the performance undertaking on a permit for street
excavation totaling 50 or less linear feet shall be $4 per square
foot of street surface excavation; provided, however, that regardless
of the amount of surface area in the said excavation, the minimum
performance undertaking shall be $2,500.
E.
The amount of the performance undertaking on a permit for street
excavations totaling more than 50 linear feet shall be determined
by the Village Board or its designee based upon a reasonable approximation
of the cost of repair and restoration of the street surface, subsurface
improvements and adjoining lands in the event that the applicant fails
to conform to the excavation plans and/or to complete the excavation
work and street restoration.
F.
Upon completion of the excavation and street restoration work, the
applicant shall submit a request to the Village Superintendent of
Public Works for a final inspection of the completed excavation. The
Village Superintendent of Public Works and, as necessary, the Village
engineering consultants, shall conduct such an inspection and render
a report to the applicant as to whether the completion of the excavation
and street restoration is satisfactory. Upon receipt of a report that
the excavation and street restoration is satisfactory, the applicant
may submit such report to the Village Clerk along with a request to
release the applicant's undertakings.
G.
In the case of street excavations, upon receipt of such written request
from the applicant, prior to release of the applicant's damage
and performance undertakings, the applicant shall deposit with the
Village Clerk a maintenance undertaking, in the form of a letter of
credit in favor of the Village of Kiryas Joel or cash deposit, as
security against items of damage to buried lines and adjoining improvements
caused by the excavation and defects in the streetway restoration
which are not discovered or otherwise do not manifest themselves at
the time of completion of the excavation. The amount of such maintenance
security shall by 50% of the performance undertaking and shall remain
in effect for two years following the date of posting.
H.
In the event that an undertaking is drawn upon by the Village due
to the applicant's failure to make repairs, the entire amount
shall be forfeited to the Village, and, if the amount of the undertaking
is insufficient for purposes of funding the costs incurred by the
Village in making the necessary repairs, the applicant shall be liable
for all additional costs and fees incurred by the Village, including
any attorneys' fees incurred in the event that it is necessary
to sue the applicant to recover such costs.
I.
This provision shall not apply to a public utility company or to
a developer who has posted a bond pursuant to the Village's development
bond local law which covers work in the public right-of-way.
J.
Permit fee for each street opening, excavation and pavement cut.
A nonrefundable permit fee set by resolution of the Village Board
or its designee shall accompany each application submitted in accordance
with this article. The fee will be filed with the Village Clerk, who
will provide a receipt for the approved permit.
A.
Street opening permits shall be granted upon a finding that all of
the requirements of this chapter have been met and the proposed excavation
will be conducted in a safe and suitable manner which will not unduly
damage the street or adjoining properties and will not endanger or
unduly inconvenience the traveling public.
B.
In granting such permits, limitations on the timing and duration
of the excavation activity and reasonable conditions may be imposed
on the applicant, including, without limitation, imposition of restrictions
of the location, days, work hours, traffic control plan and manner
of the excavation, and that written notice of the excavation be provided
to property owners in the vicinity and the general public.
C.
No street opening permit shall be issued until the damage and performance
undertakings and the necessary liability insurance have been posted
with the Village and all applicable fees have been paid.
D.
Street opening permits shall be issued in triplicate, of which one
copy will be given to the applicant, one copy will be retained by
the Superintendent of Public Works for his records, and the third
copy will be filed with the Village Clerk.
For every street opening, every applicant shall give at least
72 hours' advance written notice, including a diagram, engineering
drawings or the equivalent thereof, of a proposed excavation in any
street, new driveway, new street or new curb cut to persons, corporations
or municipalities engaged in the underground distribution of gas,
electricity, water, sewage, etc., via lines or mains within the vicinity
of the proposed excavation.
In the interest of efficiency and the proper maintenance and
construction of streets and other facilities, the Village DPW is authorized
to regulate the scheduling of all work conducted in accordance with
this article in order to minimize the number of times a street must
be opened. Accordingly, all applicants are encouraged to coordinate
their work requiring the opening of streets.
Work for which a permit has been issued shall commence within
30 days after the issuance of the permit. If not so commenced, the
permit shall be deemed to be automatically terminated. Permits thus
terminated may be renewed upon the payment of an additional permit
fee as originally required.
Every permit shall expire at the end of the period of time which
shall be set out in the permit. If the permittee is unable to complete
the work within the said time, he shall, prior to the expiration of
the permit, present in writing to the DPW a request for an extension
of time, setting forth the reasons for the requested extension. If,
in the opinion of the DPW, such an extension is necessary and not
contrary to the public interest, the permittee may be granted additional
time for the completion of the work; such time shall be determined
by the DPW.
The provisions of this article shall not be applicable in those
instances where the street or highway is maintained by the State of
New York.
A.
Any permit may be revoked by the DPW, upon notice to the permittee,
for:
(1)
Violation of any condition of the permit or of any provisions of
this article.
(2)
Violation of any provision of any other applicable ordinance or law
relating to the work.
(3)
Existence of any condition or the doing of any act constituting or
creating a nuisance or endangering the lives or properties of other.
B.
A permittee may be granted a period of up to three days from the
date of the notice to correct the violation.
C.
Written notice of any such violation shall be served upon the permittee
or his agent engaged in the work. Notice may be given either by personal
delivery or by certified mail.
D.
When any permit has been revoked and the work authorized by the permit
has not been completed, the DPW shall cause such work to be done as
may be necessary to restore the street or part thereof to as good
a condition as before the curb cut for the street or driveway or the
street opening was made, or construct or repair the new street to
Village standards. All expenses incurred by the Village shall be recovered
from the deposit or bond the permittee has filed with the Village.
If the bond does not cover such expenses, the permittee shall reimburse
the Village for any additional costs.
A.
Any person making an excavation covered by this article shall erect
a suitable barrier or guard for the protection of persons using the
streets or sidewalks and shall set up and maintain during the hours
of darkness sufficient lights or flashers to properly illuminate the
area. The permittee shall also take all necessary precautions for
the protection of the Village and of public service companies or municipal
districts and adjoining property owners and others which might be
endangered by such excavations or the work incident thereto, and shall
comply with all directions given by the DPW with respect to such barriers,
lights, flares and protective measures.
B.
Traffic control devices shall be placed at least 100 feet in advance
of all obstructions to adequately warn and direct traffic. The DPW
reserves the right to order the immediate correction of any unsafe
condition and order the installation of additional signs, lights or
other traffic control devices or to require the assignment of a worker
to direct traffic. Upon finding by the DPW that such protective measures
are not adequate, the Village may install such protective devices.
The cost thereof shall be charged against the permittee's cash
deposit or bond.
A.
Any such street opening shall be restored with Item 4 material or
equivalent as specified by the Superintendent of Public Works so that
the excavated portion shall be left in as good, substantial and permanent
a condition as before the excavation. The restoration work shall be
done in accordance with the Village's pavement patch detail requirements
on file with the Department of Public Works and under the direction
of the Village Superintendent of Public Works and the Village's engineering
consultants. Such work shall be completed within a reasonable time
after the excavation, which said time is to be determined by the Village.
B.
Recently constructed streets. It will be a condition of any permit to cut any Village street that was constructed, reconstructed or resurfaced fewer than three years prior to application for a street opening permit that the applicant overlay or pave the surface of the street, from curb to curb and intersection to intersection, in accordance with applicable Village standards. Streets older than three years shall have the entire lane of traffic repaved for the length of the disturbance. Similarly with respect to sidewalks, it will be a condition of any permit to cut any Village curb or sidewalk to replace the sidewalk from joint to joint. The Village may grant an exception to this section in the case of an emergency. The applicant shall pay all costs and comply with all related requirements as prescribed in Chapter 124 of the Village Code.
The applicant shall be responsible for all damages to adjoining
property, sidewalks, drainage facilities, public utilities and private
lines in the street caused by the excavation. The applicant shall,
under the supervision of the Village Superintendent of Public Works
and the Village's engineering consultants, replace any mains,
lines or pipes damaged in the course of the excavation and repair
and shall repair or replace any damaged swales, culverts, curbs, sidewalks
or other improvements so that they shall be in as good a condition
after the excavation as before the excavation.
It shall be the duty and responsibility of any applicant to
agree to save the Village, its officers, employees and agents harmless
from any and all costs, damages and liabilities which may accrue or
be claimed to accrue by reason of any work performed under said permit
and shall provide a certificate of insurance evidencing that he is
covered by public liability insurance in the limits of not less than
$3,000,000/$1,000,000 bodily injury and $500,000 property damage,
which policy shall name the Village of Kiryas Joel, its officers,
employees and agents as additionally named insured. The applicant
must also file with the Village evidence of statutory coverage for
workers' compensation and disability insurance. The acceptance
of any permit under this article shall constitute such an agreement
by the applicant, whether the same is expressed or not. Acceptance
or approval by the Village of any work done pursuant to a permit is
done by the Village pursuant to its general duties and shall not create
any liability on the part of the Village and shall not be determinative
of whether or not the work was properly completed.
No person making or having made any such excavation in or upon
any street shall permit such excavation to remain open or uncovered,
either day or night, without having or causing the same to be properly
guarded by day and night. The Village may direct the use of temporary
paving or steel plates for temporary coverage. In addition, the person
making the excavation shall place at such location signs, red lanterns
or other warning and traffic control devices by night so as to properly
warn all persons of the danger of such excavation.
In addition to the inspections during construction provided in § 124-18, upon notification by the permittee that all work authorized by the permit has been completed and after restoration of the opening or the completion of the new street or driveway, the DPW shall inspect the completed work. If the work has been completed in accordance with this article, the Village shall then refund to the permittee his deposit, less any and all cost incurred by the Village in connection with said permit. Until the granting of such a refund, the permittee shall remain liable for proper guarding and protection as provided herein.
A.
In the event that the street is not restored to its original condition
or the work has not been completed pursuant to the terms and conditions
of the permit, within 10 days after notice from the Village DPW that
the work has not been satisfactorily performed or the street is not
in acceptable condition, the aforesaid deposit placed with the Village
DPW shall be forfeited to the Village.
B.
The Village Board or its designee may thereafter order the Village
DPW to collect, out of the moneys deposited, a sufficient sum of money
to repair or replace the said street or other public facility or to
complete the construction of a new street to the standards acceptable
to the Village.
C.
Should the applicant fail to perform or complete its 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 correct such construction defects. The expenses thereby incurred, including the costs of compliance with the provisions of this article, and a surcharge equal to 50% of the costs incurred by the Village shall be charged against such applicant and, if unpaid upon demand, levied and collected, as provided in Chapter 6, Article II, of the Village of Kiryas Joel Code.
Any person violating any of the provisions of this article shall
be guilty of a violation and, upon conviction thereof, shall be punishable
for each offense by a fine of not more than $250 or by imprisonment
for not more than 15 days, or both. In addition to the above-provided
penalty, the Village Board or its designee may also maintain an action
or proceeding in the name of the Village in a court of competent jurisdiction
to compel compliance with or to restrain by injunction the violation
of the terms of this article.
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.
