Town of Naples, NY
Ontario County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Naples as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Building construction and fire prevention — See Ch. 61.
Attachment 1 - Appendix A, Road Improvements and Upgrades Attachment 2 - Appendix B, Specifications for Improvements and Modifications Attachment 3 - Appendix C, Designated Roads
[Adopted 12-14-2009 by L.L. No. 2-2009]

§ 81-1 Purpose.

It is the purpose hereof to establish minimum acceptable standards for installation, construction, relocation or modifications of driveways entering Town highways of the Town of Naples, for reason of public safety and protection of Town highways.

§ 81-2 Permit required.

No person, firm or corporation shall, after the effective date hereof, install, cut, construct, locate, relocate or modify the location of any driveway entrance or exit to any Town highway of the Town of Naples without having first received a permit to do so from the Superintendent of Highways of the Town of Naples.

§ 81-3 Application for permit.

Any person, firm or corporation desiring to install, cut, construct, locate, relocate or modify the location of a driveway entrance or exit onto a Town highway of the Town of Naples shall make application for a permit so to do to the Superintendent of Highways of the Town of Naples. In addition to the general standard driveway entrance and exit crossing requirements set forth in § 81-4 hereof, the Superintendent of Highways of the Town of Naples may impose special requirements which the particular situation at the location where such driveway is sought to be located requires, in his or her sole judgment.

§ 81-4 Entrance and exit crossing requirements.

The standard driveway entrance and/or exit requirements shall be as follows:
A. 
The applicant shall furnish and bear the cost for any culvert pipe that will be required. Any other materials will be supplied by the Town of Naples.
B. 
No alteration or addition shall be made to any driveway heretofore or hereafter constructed, nor shall any such driveway be relocated without first securing a permit from the Superintendent of Highways.
C. 
No more than two driveways to a single commercial establishment entering on one highway shall be permitted.
D. 
The angle of the driveway with respect to the highway pavement shall not be less than 45°.
E. 
No driveway shall be permitted within 100 feet of the center line intersection of two public highways.
F. 
No driveway will be permitted where the sight distance would create a driving hazard, in the sole judgment of the Superintendent of Highways.
G. 
A fully dimensioned plan of the proposed driveway shall be attached to the application for a permit required hereunder and must be approved by the Highway Superintendent.
H. 
Any culvert pipe required to be installed at a driveway entrance or exit shall be of corrugated plastic pipe with a smooth interior of a diameter specified by the Superintendent of Highways.
I. 
Driveway entrances, curbing, gutter, drainage ditch and roadway interface shall be constructed so as:
(1) 
Not to channel drainage water from a driveway onto or across a highway.
(2) 
Not to channel drainage water from a highway onto or across another driveway.
(3) 
Not to interfere with drainage flow along any curbing, gutter or drainage ditch.
J. 
Driveways shall be graded to the satisfaction of the Superintendent of Highways.
[Adopted 4-14-2014 by L.L. No. 2-2014]

§ 81-5 Permit required.

A. 
From and after the effective date hereof, any developer using any Town highway of the Town of Naples for any project resulting in high-frequency and/or high-impact traffic shall first obtain a permit from the Town of Naples. Such permit shall be subject to approval of the Town Board and shall be executed by the Town Supervisor at the direction of the Town Board subsequent to approval thereby with such conditions as are determined by the Town Board, in consultation with the Town Superintendent of Highways.
B. 
The commencement of high-frequency and/or high-impact traffic by the developer, the developer's employees, agents, subcontractors or anyone on behalf of the developer on any Town highway prior to issuance of a permit by the Town with respect thereto and as required hereby shall be a violation of this article, as shall be the violation of any of the conditions of such permit.

§ 81-6 Definitions.

As used in this article, the following terms shall have the meanings indicated:
DESIGNATED ROAD
Those Town highways which have been approved by the Town Board for use by the developer, and developer's agents, as set out in Appendix C.[1]
DEVELOPER
Any person, corporation, organization, LLC, LLP or other entity undertaking a project, whether in the Town of Naples or elsewhere, which will result in high-frequency, high-impact traffic.
HIGH-FREQUENCY, HIGH-IMPACT TRAFFIC
Traffic to and from a project that generates more than 40 truck trips per week, involving trucks that exceed 35 tons gross weight upon any Town highway, exempting therefrom agricultural vehicles, municipal vehicles and emergency response vehicles such as firefighting apparatus.
PROJECT
Any endeavor upon a site, whether located within the Town or elsewhere, which will result in high-frequency, high-impact traffic on a Town Highway.
PROJECT COMPLETION DATE
The date upon which the developer notices the Town that the project is complete.
TOWN
The Town of Naples.
TOWN BOARD
The Town Board of the Town of Naples.
TOWN HIGHWAY
Any road, street or other public right-of-way under the control or ownership of the Town of Naples for which the Town has responsibility for repair, maintenance and upkeep, except such highways for which the Town has responsibility for snow and ice control solely by virtue of contract with the State of New York or the County of Ontario.
TOWN SUPERINTENDENT OF HIGHWAYS
The duly serving Superintendent of Highways of the Town of Naples.
[1]
Editor's Note: Appendix C is included as an attachment to this chapter.

§ 81-7 Conditions of permit.

Any permit issued pursuant hereto shall contain the following conditions unless specifically exempted by the Town Board. No condition shall be exempted without the specific reason(s) therefor being placed on the record.
A. 
Use of designated roads by developer.
(1) 
Use of designated roads by developer. In connection with the development, construction, operation and maintenance of the project, the Town hereby acknowledges and agrees that developer, its contractors and subcontractors and each of their respective agents, officers, employees, representatives and permitted assigns (collectively, the "developer parties") may use the roads and highways located in the Town identified in Appendix C[1] (the "designated roads") generally between the hours of 7:00 a.m. and 8:00 p.m. Monday through Saturday each week ("period of use"). The designated roads may be used by developer and the developer parties in connection with the development, construction, operation and maintenance of the project and including the transportation of heavy equipment and materials to and from the project. The parties understand that deviations from the project schedule may cause monetary and other harm to developer. Accordingly, the Town agrees to use best efforts to accommodate the use of the designated roads by developer and the developer parties outside the period of use, when requested, during the period of construction. In addition to identifying the designated roads that will be used by developer, Appendix C identifies the routes over the designated roads that will be used for i) transportation and delivery of materials and equipment to be used in connection with the project, and ii) truck transportation leaving the project site following delivery of equipment and materials. The developer and the developer parties may use any other Town roads (roads not included as designated roads) in connection with the development, construction, operation and maintenance of the project; provided, however, that any such use of such roads shall not be for purposes set forth in items i) and ii) above without the prior consent of the Town Superintendent of Highways, which consent shall not be withheld unreasonably.
[1]
Editor's Note: Appendix C is included as an attachment to this chapter.
(2) 
Construction period meetings. Beginning with the commencement of the construction of the project, the developer and the Town Superintendent of Highways, also referred to as Town designee, shall meet on a weekly basis to discuss the expected use of the designated roads in the next succeeding week, including the construction schedule and the haul routes to be used. The developer designee and the Town Superintendent of Highways shall each have the authority to act on behalf of its respective employer, including the right to allow use of the designated roads outside the period of use. Within 10 days after the issuance of the permit, the developer shall provide the name and contact information for its designee.
(3) 
Additional conditions of use. The use by developer and the developer parties set forth in Subsection A(1) shall be subject to the following conditions:
(a) 
In the event developer determines it is necessary for the project to use any portions of any roads located in the Town other than the designated roads, or uses of the designated roads other than as described in Subsection A(1), the developer shall seek approval of the Town Superintendent of Highways, describing in detail such use and the reasons thereof. Such Town Superintendent of Highways will take into account weather conditions, conditions of the road and any other significant factors in making his or her determination of whether to grant permission for the use of the Town road under this Subsection A(3), which permission shall not be unreasonably withheld.
(b) 
Once construction begins on the project, the Town Superintendent of Highways shall be entitled, at any time, to notify developer and the developer parties that the use of the designated roads may result in excessive damage to the designated roads due to weather conditions. The developer and/or the developer parties shall work with such Town Superintendent of Highways to develop a plan to mitigate or prevent the effect of such damage. If the parties are able to develop a plan to mitigate or prevent such damage, then developer and the developer parties may continue to use such roads, provided that such mitigation is implemented. If the parties are unable to develop such a plan, the developer and the developer parties may propose an alternate route to the project site for approval by the Town Superintendent of Highways, which approval shall not be unreasonably withheld.
(4) 
Survey of designated roads. As soon as practicable after the issuance of the permit, but in any event prior to the commencement of use of designated roads, the Town Superintendent of Highways shall select a third party to survey the designated roads to document the condition of such roads prior to their use ("initial survey"). The initial survey may include photographs or videotape of the designated roads, which photographs or video shall be accompanied by a written summary of findings regarding the condition of the designated roads. Such initial survey and any subsequent surveys or road reports shall be completed to the reasonable satisfaction of the Town Superintendent of Highways. Copies of the initial survey shall be provided to the Town Superintendent of Highways and the developer designee. The costs of the initial survey, including any required copies, will be borne by developer. Following the initial survey, the Town shall request the third-party surveyor to conduct an additional survey following completion of the project to determine the then current condition of the designated roads. Additional surveys shall only be conducted in the event the parties mutually agree and additional costs are borne by developer.
(5) 
Restoration phase. Restoration scheduling will be consistent with the seasonal limitations identified by the New York State Department of Agriculture and Markets and will be incorporated into the project's agricultural district notice of intent (if required), the stormwater pollution prevention plan (prepared under the Department of Environmental Conservation's general stormwater permit), and any other requirements contained in developer's SEQRA findings statements issued by any appropriate agency.
(6) 
Trash removal; unnecessary materials and equipment. Throughout the term of this permit, the developer shall be responsible for keeping, at its cost, the designated roads clean and free from rubbish, dirt and debris resulting from the developer's use of the designated roads. Materials and equipment of the developer or the developer parties, if any, shall be removed from the designated roads when they are no longer necessary.
(7) 
Reimbursement of certain costs. The developer shall reimburse the Town for all reasonable, documented out-of-pocket costs, including attorney's fees, incurred by it in connection with the application, permit issuance process, permit administration and permit enforcement and all related documentation. The developer shall pay invoices presented by the Town within 30 days of receipt.
B. 
Repair of designated roads.
(1) 
Obligation to repair Town roads. In the event that any of the designated roads or related appurtenances, including bridges, culverts and other road fixtures, modifications and improvements made pursuant to Subsection C(1) and described in Appendix A,[2] or Town roads other than the designated roads are damaged as a result of the use by the developer or the developer parties, the developer agrees to repair (or cause to be repaired) such damage and to restore such road or related appurtenances to the condition they were in prior to the use (as near as is reasonably practicable having due regard for normal wear and tear) under this permit, except for repairs to modifications and improvements pursuant to Subsection C(1), which shall be repaired in accordance with the specification set forth on Appendix B.[3] The parties shall rely upon the initial survey conducted pursuant to Subsection A(4) for purposes of determining whether the repair has been performed in accordance with the standard set forth in this Subsection B(1). Any repair and restoration shall be promptly performed at such times as the designees determine, having due regard for safety, the presence of emergency conditions and the costs of such repairs. Within five days following completion of such repair, the Town Superintendent of Highways and developer designee shall jointly inspect the repair to determine that it has been satisfactorily completed. Within 48 hours after the designee's inspection and determination of satisfactory completion, the Town Superintendent of Highways shall issue a written certification that the restoration obligations required in Subsection B(1) and (2) hereof have been satisfactorily completed as of the stated date of such certificate.
[2]
Editor's Note: Appendix A is included as an attachment to this chapter.
[3]
Editor's Note: Appendix B is included as an attachment to this chapter.
(2) 
Repairs of designated roads and Town roads other than designated roads at the request of the Town Superintendent of Highways; failure to repair.
(a) 
The Town Superintendent of Highways may request in writing that the developer repair damage shown to be caused by the developer and/or the developer parties to the designated roads and/or to Town roads other than the designated roads and related appurtenances in accordance with Subsection B(1) hereof. Prior to commencement of such repair, the Town Superintendent of Highways and the developer designee shall meet to review the damage in relation to the initial survey or most recent subsequent survey, as applicable. The developer shall repair (or cause to be repaired) such damage and restore the road to the standard set forth in Subsection B(1), unless the developer or the developer parties demonstrate to the reasonable satisfaction of the Town Superintendent of Highways that the damage was not caused by the developer or the developer parties. Any repair and restoration shall be promptly performed, having due regard for safety, the presence of emergency conditions and the cost of such repairs.
(b) 
In the event that the developer fails to repair such roads and appurtenances within the agreed period, then, unless the parties mutually agree otherwise, the Town may make such repairs or cause those repairs to be made and shall invoice the developer for the costs incurred by the Town in connection with the repair. The developer shall pay such invoiced amounts within 30 days following receipt of the invoice; provided, however, that if the developer disputes the invoice for said repairs, the Town Superintendent of Highways and the developer designee shall together make a determination, as applicable, of which repairs were reasonably necessary to protect public health, safety and welfare, and which costs of such repairs are reasonably attributable to damage caused to the Town roads by the developer, or the developer parties, and the developer will pay such costs as so determined by the Town Superintendent of Highways.
(3) 
Term of obligation to repair. Notwithstanding anything herein to the contrary, the obligation of the developer and the developer parties to repair roads in accordance with Subsection B(1) and (2) shall terminate on the later to occur of the following: i) the date that is 60 days following the completion repairs pursuant to Subsection B(1) and (2) hereof, and ii) the date on which the warranty coverage described in Subsection D expires. The developer shall notify the Town in writing 60 days prior to the date on which completion of the project will occur.
C. 
Improvement and modifications to designated roads.
(1) 
Improvements and modifications to designated roads.
(a) 
Certain modifications and improvements to the designated roads and related appurtenant structures are necessary to accommodate the use of the designated roads by the developer and the developer parties, including the widening of certain roads and modifications and improvements necessary to accommodate the heavy equipment and materials to be transported on the designated roads. The modifications and improvements that shall be made by developer are described in detail in Appendix B hereto.[4] The Town consents that such improvements and modifications shall be made in accordance with the specifications set forth in Appendix B. Upon the reasonable request of the developer, the Town Superintendent of Highways is authorized from time to time to grant consent to deviations from the specifications set forth in Appendix B, if it is determined to be in the best interest of the Town.
[4]
Editor's Note: Appendix B is included as an attachment to this chapter.
(b) 
Within five days following completion of any modifications or improvements, the Town Superintendent of Highways and the developer designee shall jointly inspect the work to determine that it has been satisfactorily completed. Within 48 hours after the inspection and determination of satisfactory completion, the Town Superintendent of Highways shall issue a written certification that the modification or improvement has been satisfactorily completed in accordance with specifications set forth on Appendix B attached hereto as of the stated date of such certificate.
(2) 
List of materials and construction techniques. Ten days prior to the commencement of any modification or improvement pursuant to this Subsection C, the developer shall deliver to the Town Superintendent of Highways a list of all materials to be used and construction techniques to be employed in connection therewith, to the extent such modifications, improvements, materials and techniques are not already described in Appendix B,[5] subject to the approval of the Town Superintendent of Highways.
[5]
Editor's Note: Appendix B is included as an attachment to this chapter.
(3) 
Subsequent modifications or improvements. If modifications or improvements are necessary to the designated roads and related appurtenant structures that were not completed at the time the permit was executed, the parties agree to negotiate in good faith and mutually agree to such modification or improvement, together with the materials to be used, the construction techniques to be employed, and the specifications applicable to such work.
(4) 
Compliance with law. The developer agrees that all modifications and improvements shall comply with all applicable laws, subject to the obligations of the Town set forth in Subsection C(5).
(5) 
Permits. The developer shall obtain all government permits and approvals that are necessary to permit the developer to make the modifications and improvements to the designated roads contemplated herein, including obtaining all necessary private land rights that may be required in connection with the conditions hereof. The Town shall not be responsible for obtaining any such permits or approvals. In light of this permit, highway work permits from the Town shall not be required for such improvements as long as the parties comply with the terms of this permit.
D. 
Warranties by developer.
(1) 
Workmanship and material warranties.
(a) 
The developer's engineering responsibility shall be carried out in accordance with generally accepted engineering practices, and the developer's construction responsibility shall be carried out in accordance with sound construction practices, subject to the provisions of Subsection C(2) (including the specifications contained in Appendix B[6]). The developer shall require that its construction contractors and subcontractors follow the same standards of engineering and construction practice. The developer warrants that it shall perform and complete all repairs, modifications and improvements hereunder in a good and workmanlike manner.
[6]
Editor's Note: Appendix B is included as an attachment to this chapter.
(b) 
The developer warrants that all repairs, modifications and improvements hereunder shall be free from defects in material and workmanship. The developer shall remedy any defects in the repairs, modifications and improvements performed hereunder, workmanship, materials and equipment, including repairs, modifications and improvements, workmanship, materials and equipment provided by subcontractors, in accordance with Subsection D(2) hereof, which appear during the "applicable warranty period." A "defect" means any and all design, engineering, or construction which 1) does not conform to the terms of this permit; 2) fails to comply with the standards set forth in Subsection D(1)(a) hereof; 3) is not of specified quality; 4) is of improper or inferior workmanship; or 5) is not suitable for use under applicable climate and range of operating conditions. If the Town Superintendent of Highways has already certified that modifications and/or repairs have been satisfactorily completed, as required under Subsection B(1) and C(1) hereof, the Town shall have the burden to demonstrate to an independent engineer, to be agreed upon by the parties, that a defect exists and that it could not have been detected at the time the Town made its certification under Subsection B(1) and C(1). As used herein, "applicable warranty period" shall mean a term of 18 months commencing upon project completion date.
(c) 
A bond, letter of credit, or cash escrow will be required for each designated haul road in an amount to be determined subsequent to the designation of haul routes but prior to issuance of the permit. The bonded amounts shall be in accordance with the determination of the Superintendent of Highways. The final release of all bonds/letters of credit/cash escrow will be determined once all damage has been repaired to the satisfaction of the Town Highway Superintendent.
(2) 
Remedies. During the applicable warranty period, the Town shall notify the developer in writing within 15 days of discovery by the Town that it believes there are defects, providing that any delay by the Town beyond such 15 days in notifying the developer shall relieve developer from liability only to the extent of any additional expense which may arise as a direct result of such delay. Only after it has been determined by an independent engineer that an undetectable defect has occurred, at no additional cost to the Town, the developer shall proceed promptly to take such action relating to its performance hereunder as is necessary to cause the repairs, modifications and improvements to comply with the warranties specified in this permit. The developer shall be available either at the project or by telephone for the performance of warranty repairs on a seven-day-a-week, twenty-four-hour-per-day basis. The developer shall not be obligated to remedy any materials, equipment, repairs, modifications or improvements which become defective as a result of improper operation or maintenance by the Town or which result from normal wear and tear or use by parties other than developer or the developer parties.
(3) 
In the event that the developer and/or the developer parties do not proceed in a timely manner to take such action as is necessary to cause the repairs, modifications and improvements to comply with the warranties specified in this permit, the Town of Naples reserves the right to take any action it deems reasonable to cause the repairs, modifications or improvements to be completed. By the acceptance of this permit, the developer and/or the developer parties shall reimburse the Town for all reasonable costs associated with this action, including reasonable attorney's fees.
(4) 
Liens. The developer warrants that all repairs, modifications, improvements and materials furnished in connection herewith by the developer and the developer parties pursuant to this permit and the conditions hereof shall be free and clear of all liens.
E. 
Use of designated roads after completion of construction. During the operation of the project, if the developer determines it is necessary to undertake any repairs or maintenance on any project component would require the use of roads as contemplated under Subsection A(1) Items i) and ii), hereof, the developer shall notify the Town Superintendent of Highways prior to its use of any of the designated roads for the transportation of equipment. The Town Superintendent of Highways will determine if a survey is required to survey the condition of any of the designated roads for purposes of being able to assess the condition of such roads before and after such use. Any such future use shall comply with the terms and conditions of this permit.
F. 
Indemnification; limitation of liability.
(1) 
Indemnification by developer. By acceptance of this permit, the developer hereby releases and agrees to indemnify and hold harmless the Town and its respective officers, agents and employees and their respective heirs, executors, administrators, successors and assigns (hereinafter collectively "Town releasees") from any and all actions, causes of action, suits, claims, expenses (including reasonable attorney's fees) and demands against the Town releasees arising out of or relating to the performance by the developer and the developer parties of their respective obligations under this permit except to the extent caused by the gross negligence, illegal or willful misconduct, or omission or failure to act of or by the Town or its officers, agents, employees or subcontractors. More particularly, but without in any way limiting the foregoing, the developer hereby releases the Town releasees and agrees to indemnify and hold harmless the Town releasees from any and all actions, causes of action, suits, claims, expenses (including reasonable attorney's fees) and demands arising directly or indirectly from any personal injury, death or property damage arising out of the use, construction, modification, repair or improvement of any designated road or any Town road by the developer, the developer parties and their respective employees, agents representatives, contractors or subcontractors except to the extent caused by the gross negligence, illegal or willful misconduct, or omission or failure to act of or by the Town or its officers, agents, employees or subcontractors. In the event a claim, action, demand, suit or proceeding ("claim") is instituted against the Town by any third party pursuant to which the Town is entitled to be indemnified hereunder, the Town shall notify the developer in writing within 10 days of being made aware of such claim and contemporaneously provide the developer with a copy of the written documents presented by such third party. Failure of the Town to notify the developer of such claim in a timely manner shall void any indemnification owed by the developer to the Town.
(2) 
Indemnification by the Town. The Town hereby releases and agrees to indemnify and hold harmless the developer and its members, officers, directors, contractors, subcontractors, employees and agents, and their respective employees, heirs, executors, administrators, successors and assigns (hereinafter collectively "developer releasees") from any and all actions, causes of action, suits, claims, expenses (including reasonable attorney's fees) and demands against developer releasees arising out of or relating to the issuance, administration and/or enforcement of this permit except to the extent caused by the gross negligence, illegal or willful misconduct, or omission or failure to act of or by the developer, developer parties, or their officers, agents, employees or subcontractors. More particularly, but without in any way limiting the foregoing, the Town hereby releases the developer releasees from any and all actions, causes of action, suits, claims, expenses (including reasonable attorney's fees) and demands arising directly or indirectly from any personal injury, death or property damage arising out of the use, construction, modifications, repair or improvement of any designated road or any Town road by the Town, their respective employees, agents, representatives or contractors or their respective employees, agents or representatives except to the extent caused by the gross negligence, illegal or willful misconduct, or omission or failure to act of or by the developer, developer parties, or their officers, agents, employees or subcontractors. This shall not be construed as to limit the developer's and the developer parties' responsibility to comply with their obligations of the warranties contained herein. In the event a claim, action, demand, suit or proceeding is instituted against the developer by any third party pursuant to which the developer is entitled to be indemnified hereunder, the developer shall immediately notify the Town in writing within 10 days of being made aware of such claim and contemporaneously provide the Town with a copy of the written documents presented by such third party. Failure of the developer to notify the Town of such claim in a timely manner shall void any indemnification owed by the Town to the developer.
(3) 
Limitation of liability. The Town and the developer waive all claims against each other (and against each other's parent company and affiliates and their respective members, shareholders, officers, directors, agents and employees) for any consequential, incidental, indirect, special, exemplary or punitive damages (including loss of actual or anticipated profits, revenues or product loss by reason of shutdown or nonoperation; increased expense of operation, borrowing or financing; loss of use or productivity; or increased cost of capital), and regardless of whether any such claim arises out of breach of contract or warranty, tort, product liability, indemnity (including the indemnity set forth above), contribution, strict liability or other legal theory.
G. 
Insurance. The developer shall, at all times throughout the term of this permit, maintain in full force and effect worker's compensation insurance in an amount required by applicable law and general liability insurance, naming the Town of Naples as additional insured, in the amount of $3,000,000 in the aggregate. The developer may utilize any combination of primary and/or excess insurance to satisfy this requirement. The developer may elect to self-insure, in accordance with all legal requirements prescribed by state and federal law, any or all of the insurance requirements contained in this permit.
H. 
Term; default and remedies.
(1) 
Term of permit. This permit shall become effective as of the date specified therein and shall remain in effect until the earlier of 24 months having elapsed from the effective date of the permit or the project completion date, as noticed to the Town by the developer.
(2) 
Events of default. The occurrence of any one or more of the following events shall constitute an "event of default" hereunder:
(a) 
Subject to the developer's right to dispute invoices as set forth above, failure by the developer to make any payment or reimbursement due under the terms of the permit when due and payable, and such failure continues for 30 days after receipt by the developer of written notice of such failure from the Town.
(b) 
Any representation or warranty made by the developer pursuant to the permit or in any report, certificate, financial statement, or other instrument furnished at any time under or in connection with this permit shall prove to have been false, misleading, or incorrect in any material respect as of the date made.
(c) 
Failure by the developer to comply with any condition or obligation contained in the permit, and such failure continues for 30 days (or such longer period as the Town may specify if such failure is not susceptible of cure within such thirty-day period) after receipt by the developer of written notice of such failure from the Town.
(d) 
Developer's:
[1] 
Application for or consent to the appointment of or the taking of possession by a receiver, custodian, trustee, or liquidator of itself or of all or a substantial part of its property;
[2] 
Admission in writing of its inability to pay its debts as such debts become due;
[3] 
Making a general assignment for the benefit of its creditors;
[4] 
Commencing a voluntary case under the United States Federal Bankruptcy Code (as now or hereafter in effect);
[5] 
Filing a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding up, or composition or adjustment of debts; or
[6] 
Failure to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against itself in an involuntary case under the United States Federal Bankruptcy Code.
(e) 
The institution of a case or proceeding against the developer in any court of competent jurisdiction, seeking:
[1] 
The liquidation, reorganization, dissolution, winding up or composition or readjustment of debts of the developer; or
[2] 
The appointment of a trustee, receiver, custodian, liquidator or the like of the developer or of all or any substantial part of its assets, unless such proceeding or case is dismissed within 60 days thereafter.
(f) 
The Town's failure to comply with any condition contained in the permit, and such failure continues for a thirty-day period after written notice thereof by the developer, provided that such thirty-day period may be extended by the Town if the Town sends a written notice to the developer stating the defined longer period of time that is reasonably necessary to effect a cure so long as i) such default could reasonably be expected to be subject to cure after the already expired thirty-day period, and ii) the Town is diligently and continuously proceeding to cure, or cause the cure of, such default and so certifies in any such Town notice to the developer; and provided further that any such extended cure period shall not exceed 90 days after notice thereof from the developer to the Town.
(3) 
Remedies upon default. Whenever an event of default described in Subsection H(2) shall have occurred, the Town or the developer, as applicable, shall have the right to take any or all of the following actions:
(a) 
For a developer event of default, declare the developer in default and to seek immediate payment of any amount due hereunder from any surety guaranteeing the developer's full and faithful performance hereunder, such payment to be immediately due and payable together with interest thereon at the rate of 9% per annum from the date of default through the date of payment, without any further notice of demand of any kind or any presentment of protest.
(b) 
Take whatever action at law or in equity as may appear necessary or desirable to collect the amounts then due and thereafter to become due or to enforce the performance or observance of any obligations, permits, or covenants of the developer, or the Town, as applicable, pursuant to this permit.
(4) 
Remedies cumulative. The rights and remedies of the Town under this permit shall be cumulative and shall not exclude any other rights or remedies the Town may have at law or in equity with respect to any event of default, including the revocation of the developer's rights under the permit.
(5) 
Developer contest. If at any time the developer shall disagree with the Town, the developer may commence and Article 78 or other proceeding to determine whether such Town Superintendent of Highways has acted appropriately. If it is determined that the Town Superintendent of Highways acted appropriately, the developer shall reimburse the Town for all costs associated with such proceeding, including reasonable attorney's fees. If it is determined that the Town Superintendent of Highways did not act appropriately, the Town shall reimburse the developer for all costs associated with such proceeding, including reasonable attorney's fees.
(6) 
Attorney's fees. In the event that the Town has to take any actions with respect to the permit otherwise obtain compliance with its terms, the developer agrees to reimburse the Town for all costs so incurred, including reasonable attorney's fees.[7]
[7]
Editor's Note: So in original.
(7) 
Financing party cure rights. If a developer event of default occurs and is continuing, prior to exercising its remedies in Subsection H(3) hereof, the Town shall give written notice ("notice") thereof to the developer identifying the default and the date of the developer event of default ("default date"), with a copy of such notice to not greater than five lenders or investors identified, in writing, by the developer (collectively, the "financing parties"); provided, however, that the obligation of the Town to provide notice to financing parties shall be limited to the information (including addresses and contact information) concerning such financing parties that is provided to the Town in writing by the developer. The developer may amend the names and addresses of any financing party from time to time. Any financing party shall have a) with respect to any such developer event of default which is capable of being cured by the payment of money, 30 days after the later of i) receipt of such notice and ii) the date of such developer event of default, and b) with respect to any such developer event of default which is not capable of being cured by the payment of money (a "nonmonetary event of default"), 90 days after the later of i) receipt of such notice and ii) the date of such nonmonetary event of default (or such longer period of time as may be reasonably necessary under the circumstances to cure such nonmonetary event of default or to cause it to be cured, provided that such nonmonetary event of default is curable and such financing party is diligently pursuing such cure, provided that the total cure period for a nonmonetary event of default shall not exceed 120 days, except if it is necessary for such financing party to gain possession or to foreclose upon any of the collateral granted to it in order to cure such nonmonetary event of default, in which case the total cure period for such nonmonetary event of default shall extend for a period of 120 days from the date on which such financing party shall have gained possession or foreclosed upon such collateral. If such financing party fails to cure, or cause to be cured, any such developer event of default within the appropriate cure period set forth above, the Town shall be free to pursue any and all such rights and remedies with respect to such default as set forth in this permit. Any notice given to or by a financing party under this section shall be given in accordance with the methods provided in Subsection K(3) for notice to the parties.
I. 
Provision of security for performance.
(1) 
Form of security. Prior to commencement of construction of the project, a financial instrument or reserve account (bond, letter of credit, insurance policy or corporate guaranty) in an amount, form and content satisfactory to the Town based upon the recommendation of the Town Superintendant of Highways, shall be set up to guarantee 1) the full and faithful performance of the repairs, modifications and improvements by the developer and the developer parties hereunder and 2) the payment of all liens of all persons performing labor and providing services, materials, equipment, supplies, machinery, and other items in connection with the performance of such repairs, modifications and improvements by the developer and the developer parties hereunder. Prior to construction, the developer shall provide evidence to the Town that such financial instrument or reserve account is in place. The amount of the financial instrument or reserve account set aside hereunder is not intended to limit in any way the obligation of the developer to perform its obligations, all in accordance with the conditions of this permit. In the event that the project duration exceeds 18 months from permit issuance to completion date, the Town may require an increase in the amount of the security, based upon the recommendation of the Town Highway Superintendant.
(2) 
Release of security. Upon the completion and performance of all the conditions hereof, the Town shall issue to the developer a certification in writing that the performance is accepted. At such time the security provided pursuant to Subsection I(1) hereof shall be returned to the developer or released.
J. 
Force majeure event.
(1) 
Force majeure event defined. As used in relation hereto to the term, "force majeure event" means causes or events that are beyond the reasonable control of, and without the fault or negligence of, the party claiming such force majeure event, including, without limitation, natural disasters; fire; lightning strikes; earthquake; acts of God; unusually or unseasonably severe actions of the elements such as snow, floods, hurricanes or tornadoes; causes or events affecting the performance of third-party suppliers of goods or services or any other similar or different cause not reasonably within the control of the party claiming the force majeure event; sabotage; terrorism; war; riots or public disorders; strikes or other labor disputes (caused by other than the party claiming the force majeure event); partial or entire failure of utilities; actions or failures to act (including expropriation and requisition) of any governmental agency, to the extent such cause or event prevents or delays performance of any obligation imposed on the party claiming such force majeure event (other than an obligation to pay money); and change in law. "Change in law" shall mean any of the following:
(a) 
The suspension, termination, denial or failure of the issuance or renewal of, or the imposition of any different or additional conditions as a precondition to the renewal of, or any unreasonable delay in the obtaining of any permit, license, consent, authorization or approval required by law or essential to the operation and maintenance of the project, if such event is not appealable or, if appealable, adversely affects the obligations of developer or the Town during the pendency of the appeal, and is not the fault of the party relying thereon; provided, however, that the contesting in good faith of any such action shall not be construed as the fault of such party; or
(b) 
Any change in (including repeal), or adoption or imposition of, any federal, state or local law, ordinance, code, regulation (not adopted or officially proposed pursuant to the applicable administrative procedure act as of the date of issuance of the permit) or court order, or interpretation thereof, which:
[1] 
Is legally binding with respect to the design, construction, operation or maintenance of the project;
[2] 
In the case of permits, licenses, consents, authorizations, approvals and orders, cannot be stayed by the developer or the Town; and
[3] 
Occurs subsequent to the original date of the issuance of this permit.
(2) 
Applicability of force majeure event. No party will be in breach or liable for any delay or failure in its performance of the conditions hereof to the extent such performance is prevented or delayed due to a force majeure event, provided that:
(a) 
The nonperforming party will give the other parties written notice within 48 hours of the commencement of the force majeure event, with details to be supplied within 14 calendar days after the commencement of the force majeure event further describing the particulars of the occurrence of the force majeure event;
(b) 
The delay in performance will be of no greater scope and of no longer duration than is directly caused by the force majeure event;
(c) 
The party whose performance is delayed or prevented will proceed with commercially reasonable efforts to overcome the events or circumstances preventing or delaying performance and will provide a written report to the other parties during the period that performance is delayed or prevented describing actions taken and to be taken to remedy the consequences of the force majeure event, the schedule for such actions and the expected date by which performance will no longer be affected by the force majeure event; and
(d) 
When the performance of the party claiming the force majeure event is no longer being delayed or prevented, that party will give other parties written notice to that effect.
K. 
Miscellaneous provisions.
(1) 
Governing law. This permit shall be administered and enforced pursuant to the laws of the State of New York, without regard to the conflict of laws provisions in such state.
(2) 
Assignment. This permit shall not be assigned, transferred, delegated or encumbered without the prior written consent of the Town. In those instances in which the approval of a proposed assignee or transferee is required or requested:
(a) 
Such approval shall not be unreasonably withheld, conditioned or delayed; and
(b) 
Without limiting the foregoing, in the case of the Town, the Town's approval may not be conditioned on the payment of any sum or performance of any permit other than the permit of the assignee or transferee to perform the obligations developer pursuant thereto.[8]
[8]
Editor's Note: So in original.
(3) 
Notices.
(a) 
All notices, requests, demands and other communications required or permitted to be given by the parties hereunder shall be in writing and shall be delivered in person or by facsimile or by first-class certified mail, postage and fees prepaid, to the address of the intended recipient as set forth below. Notice delivered in person shall be acknowledged in writing at the time of receipt. Notice delivered by facsimile shall be acknowledged by return facsimile within 24 hours, excluding Saturdays, Sundays and public holidays. All such notices, requests, demands and other communications shall be deemed to have been received by the addressee, if by first-class certified mail, three days following mailing; if by facsimile, immediately following transmission; or if by personal delivery, upon such delivery. All such notices, requests, demands and other communications shall be sent to the following addresses:
[1] 
To the Town of Naples:
Town of Naples
106 South Main St.
Naples, N.Y. 14873
Attn: Town Supervisor
[2] 
To the developer and developer parties: Such address is provided upon the application for a permit or such address subsequently provided to the Town Clerk, in writing, with personally served or by certified mail.
(b) 
The foregoing addresses may be changed by any party by giving written notice to the other party as provided above.
(4) 
Exercise of rights and waiver. The failure of any party to exercise any right under this permit shall not, unless otherwise provided or agreed to in writing, be deemed a waiver thereof, nor shall a waiver by any party of any provisions hereof be deemed a waiver of any future compliance therewith, and such provisions shall remain in full force and effect.
(5) 
Independent contractor; relation of the parties. The status of the developer under this permit shall be that of an independent contractor and not that of an agent, and in accordance with such status, the developer and its officers, agents, employees, representatives and servants shall at all times during the conditions of this permit conduct themselves in a manner consistent with such status and shall neither hold themselves out as, nor claim to be acting in the capacity of, officers, employees, agents, representatives or servants of the Town. As an independent contractor, developer shall accept full responsibility for providing to its employees all statutory coverage for worker's compensation, unemployment, disability or other coverage required by law.
(6) 
Severability. In the event that any condition in this permit shall, for any reason, be deemed invalid or unenforceable, the remaining conditions shall not be affected, impaired or invalidated and shall remain in full force and effect.
(7) 
No third-party beneficiary. This permit shall in no way inure to the benefit of any person or third party so as to constitute any such person or third party as a third-party beneficiary under this permit or of any one or more of the conditions hereof.
(8) 
Safety. The developer and the developer parties shall perform the work hereunder in a safe manner and shall obey all safety requirements developer may establish from time to time, and shall comply with all state and federal safety regulations applicable to the work being done. While work is being done on any of the public roads in the Town, the developer shall establish work zones with appropriate signage, warning the traveling public of the existence of the construction zone and providing adequate traffic control as to assure safe passage through said construction zone. The developer also agrees to provide traffic control on the designated roads when such roads are blocked during their use by the developer or the developer parties. All traffic control plans to be used on Town roads shall be approved by the Town Superintendent of Highways, such approval not to be unreasonably withheld.
(9) 
Dust control. Prior to commencing work, the developer shall prepare a plan for dust control during periods of construction or repair of the designated collection system roads, which plan shall be subject to approval by the Town Superintendent of Highways; such approval shall not be unreasonably withheld or delayed. The developer shall implement the plan in coordination and consultation with the Town Superintendent of Highways.
(10) 
Erosion and sedimentation control. Prior to commencing work, the developer shall prepare a plan for erosion and sedimentation control along any roads that are designated for repair. The details of said plan will meet all erosion and sedimentation requirements of the Town, state or federal government. The erosion and sedimentation control plan will be subject to the approval of the Town Superintendent of Highways; such approval shall not be unreasonably withheld or delayed. The developer shall implement the plan in coordination and consultation with the Town Superintendent of Highways.
(11) 
Excess material. The developer and the developer parties agree that in connection with certain improvements to be made hereunder, there may be certain materials removed that are no longer necessary (the "excess materials"). The developer agrees to remove such materials and stockpile them for use by the Town if requested by the Town Superintendent of Highways. The Town Superintendent of Highways agrees to designate the place on Town property on which the excess materials will be stored.

§ 81-8 Permit application procedure.

A. 
No permit shall be issued hereunder unless an application for same has been made to the Town Board. The issuance of such permit shall require the prior approval of the Town Highway Superintendent, based upon his review of the application documents.
B. 
The application shall be of a form and content as is prescribed by the Town Board by motion duly made and adopted.
C. 
The Town Board may also require such documentation to be submitted with the application as it deems reasonably necessary for the proper review of the application.
D. 
The Town Board shall, by motion duly made and adopted, declare when the application is complete in terms of information and documentation required for the review of the application.
E. 
Within 45 days of the application being declared complete, the Town Board shall hold a public hearing, scheduled by motion duly made and adopted, and upon 10 days' notice thereof duly posted and published.
F. 
Within 30 days of the closing of the public hearing, the Town Board shall make a decision upon issuance of the permit. The decision shall be by motion or resolution duly made and adopted.
G. 
In the event that the issuance of the permit is approved, the conditions thereof shall be included in the record of such approval and the permit shall be issued upon signature of the Town Supervisor within the 10 days of the approval thereof. The decision to omit any of the conditions set out in Subsections A through K of § 81-7 hereof shall be specifically set forth on the record together with the reason(s) supporting such omission.
H. 
The permit shall contain all of the conditions applicable to the permit, the issuance date of the permit and the date of expiration of the permit. The expiration date may be amended for good cause, upon application for same to the Town Board.
I. 
The permit shall be executed by a duly designated representative of the applicant, and the permit shall recite that the execution thereof by the applicant evidences the applicant's acceptance of the conditions of the permit and agreement to comply with said conditions, as well as the provisions of this article.
J. 
In the event that the permit is denied to the applicant, the specific reason or reasons shall be specified on the record and a written notice provided to the applicant within 10 days of the meeting at which the denial is made. Such written notice shall specify the reasons for such denial.
K. 
Application fee. An application fee shall be set by the Town Board by resolution duly made and adopted. Such fee may be amended from time to time by the Town Board by like resolution. Such application fee shall be paid to the Town upon submission of the application.
L. 
An applicant who is denied a permit may reapply with an amended application and payment of the requisite application fee.
M. 
The permit shall expire upon the earlier of 24 months from issuance date or project completion date.
N. 
Projects requiring in excess of 24 months for completion shall require a permit extension, upon good cause shown, which may be issued upon application pursuant to the criteria set forth in this section and payment of the requisite application fee.

§ 81-9 Enforcement; penalties for offenses.

A. 
This article shall be enforced by the Town of Naples by such officer or employee designated for such purpose by the Town Board.
B. 
A violation of the provision hereof shall be punishable upon conviction by a fine not to exceed $250 and/or incarceration for a period not to exceed 15 days.
C. 
Each day that a violation hereof continues shall be a separate offense, punishable separately as hereinbefore provided.
D. 
This article may also be enforced by civil proceedings in a court of competent jurisdiction seeking injunctive relief, monetary damages and/or other form of relief available pursuant to law.