[Adopted 4-18-2013 by L.L. No. 1-2013]
This chapter is enacted pursuant to the New York State Constitution,
Article IX, § 2(c)(6); New York Vehicle and Traffic Law
§ 1660; New York Municipal Home Rule Law § 10;
New York Statute of Local Governments § 10; New York Highway
Law §§ 320 and 326; and New York Town Law § 130.
As used in this chapter, the following term s shall have the
meanings set forth herein:
BASELINE TRAFFIC
Recurring ambient traffic presented on an annualized basis.
It includes typical daily activities on Town highways (hereinafter
defined) such as passenger vehicles, school buses, delivery vehicles,
garbage trucks, and normal commuter and business traffic. Baseline
traffic is the cause of normal wear and tear for which a Town highway
is constructed. Baseline traffic does not include unusual heavy traffic
occurring on a temporary basis for such things as construction activity
(hereinafter defined).
CONCENTRATED TRAFFIC
Traffic intended to travel upon or traveling upon Town highways
to or from the site of construction activity which:
A.
Is not baseline traffic; and
B.
Will exceed the predetermined normal wear-and-tear thresholds
of one or more Town highways or segments of Town highways.
CONSTRUCTION ACTIVITY
Any activity occurring or to occur in or outside of the Town
that results in land disturbance or the improvement of a parcel. Evidence
of construction activity includes, without limitation, those activities
which are also being undertaken subject to:
A.
Federal permits and approvals, including, without limitation,
approvals subject to the National Environmental Policy Act and activities
subject to the following nationwide permits, as amended, and issued
by the United States Army Corps of Engineers: Permit 8 (Oil and Gas
Structures), Permit 12 (Utility Line Activities), Permit 13 (Bank
Stabilization), Permit 16 (Return Water from Upland Contained Disposal
Areas), Permit 17 (Hydropower Projects), Permit 21 (Surface Coal Mining
Operations), Permit 29 (Residential Developments), Permit 33 (Temporary
Construction, Access, and Dewatering), Permit 38 (Cleanup of Hazardous
and Toxic Waste), Permit 39 (Commercial and Institutional Developments),
and Permit 44 (Mining Activities); or
B.
State permits and approvals, including, without limitation:
highway work permits; waste transporter permits; SPDES general permit
for stormwater discharges from construction activity and other SPDES
discharge permits; oil, natural gas, and solution mining permits and
other mining permits; overweight/oversize vehicle permits; authority
to transport property (except household goods); divisible load overweight
permits; special hauling trip and annual oversize/overweight loads
permits; LCV/tandem trailer permits; and special hauling permits;
or
C.
Local permits and approvals, if applicable, including, without
limitation: aquifer protection permits, sludge disposal permits, mining
permits, gravel mining permits, permits for well in aquifer area,
overweight/oversize vehicle permits, special use permits, zoning changes,
and site plan approval.
PERSON
Any person, persons, corporation, partnership, limited liability
company, or other entity.
PROGRAM MANUAL
The Road Protection Program Manual, Version 2.0, dated February
2012, prepared by Delta Engineers, Architects, & Land Surveyors,
P.C., a copy of which is on file and available at the Town's
offices.
TECHNICAL MANUAL
The Road Protection Program Technical Manual, Version 2.0,
dated February 2012, prepared by Delta Engineers, Architects, &
Land Surveyors, P.C., a copy of which is on file and available at
the Town's offices.
TOWN HIGHWAY
Those roads and highways and related appurtenances of the
Town which are owned or maintained by the Town or otherwise exist
as Town highways by dedication or use, including, without limitation,
roadways, shoulders, guiderails, bridges, tunnels, culverts, sluices,
ditches, swales, sidewalks, or any utilities or improvements therein,
thereon, or thereunder.
This chapter shall apply to any person who, individually or
in concert with another person, intends to undertake construction
activity that will result in concentrated traffic on Town highways.
If the Town Highway Superintendent determines that traffic generated
by an applicant's construction activity will result in concentrated
traffic, the applicant shall be required to comply with the following
provisions:
A. The applicant shall be required to set forth a haul route declaration
as set forth in the Program Manual.
B. The Town's engineering consultant shall examine each segment
of the proposed haul route in order to:
(1) Evaluate the Town highways on the proposed haul route for design,
geometric, or health and safety deficiencies, as those deficiencies
are defined more fully by the Program Manual; and
(2) Estimate the costs and procedures necessary to upgrade such Town
highways on the proposed haul route if the Town's engineering
consultant determines that the Town highways on the proposed haul
route must be upgraded to accommodate the applicant's concentrated
traffic; and
(3) If available, propose an alternate haul route if required due to
design deficiencies or if desired by the applicant to minimize estimated
upgrade or repair costs to the haul route.
C. The Town's engineering consultant shall design or approve, in conjunction with the Town Highway Superintendent or the Town Engineer, all structural, geometric, and roadbed upgrades to Town highways necessary to accommodate the applicant's concentrated traffic, which upgrades shall be made at the applicant's expense in accordance with the provisions of Subsection
H of this §
152-6. An applicant that has completed upgrades to Town highways in accordance with this Subsection
C will not be responsible for repairing Town highways on the applicant's haul route, provided that the applicant's actual traffic does not exceed the scope, volume, weight, or trips reported on the applicant's haul route declaration.
D. The Town's engineering consultant shall conduct all pre-use
testing and capacity evaluation of each segment of a haul route that
is a Town highway in accordance with the methods set forth in the
Program Manual and the Technical Manual.
E. If no upgrades have been required and/or made to the Town highways on the proposed haul route and the Town's engineering consultant determines that the applicant's concentrated traffic is expected to cause damage to Town highways, the Town's engineering consultant shall provide the Town Highway Superintendent and the applicant with an estimate of the cost to repair such expected damage. Prior to the use of any haul route segment on Town highways, the applicant shall agree to make all such repairs at the applicant's expense in accordance with the provisions of Subsection
H of this §
152-6 (including the posting of appropriate security). If any haul route segment is on a Town highway that is unpaved or prone to seasonal deterioration, or likely to suffer sudden failure that would impair the safe travel and usage of such Town highway, the Town Highway Superintendent may require, upon the recommendation of the Town's engineering consultant, that such Town highways be subject to weekly monitoring and that any damage be repaired within five days at the applicant's expense in accordance with the provisions of Subsection
H of this §
152-6.
F. The Town's engineering consultant shall conduct all post-use testing and damage assessment of each segment of a haul route that is a Town highway in accordance with the methods set forth in the Program Manual and the Technical Manual. The Town's engineering consultant shall provide an estimate of the cost of repairing any actual damage to Town highways caused by the applicant's concentrated traffic. Upon receiving the estimate, the applicant shall make all such repairs at the applicant's expense in accordance with the provisions of Subsection
H of this §
152-6. Upon the satisfactory completion of the repairs and the approval of such repairs by the Town Highway Superintendent, any unused security shall be returned to the applicant or otherwise released as herein required.
G. Any security for performance and/or payment required under this chapter
shall be in an amount set by the Town Board upon the recommendation
of the Town's engineering consultant. Any such security shall
be provided pursuant to a written security agreement with the Town,
approved by the Town Board and also approved by the Town Attorney
as to form, sufficiency, and manner of execution.
(1) At the Town Board's discretion, the security may be in the form
of:
(a)
A performance or payment bond, as applicable;
(b)
The deposit of funds with the Town;
(c)
An irrevocable letter of credit from a bank authorized to do
business in New York State; or
(d)
Other financial guaranty acceptable to the Town Board.
(2) If the Town's right to collect against any security is contested
and the Town prevails, then the applicant shall pay the Town an amount
sufficient to reimburse the Town for its reasonable costs and expenses
in obtaining a judgment, including attorneys' fees.
H. An applicant shall be permitted to undertake upgrade or repair work
only if the Town Highway Superintendent determines that the applicant,
or a contractor hired by the applicant, has the capability and experience
to make the necessary repairs or upgrades.
(1) All work shall be performed pursuant to an agreement, in writing,
between the applicant and the Town, which shall require, among other
things, the applicant or its contractor to:
(a)
Complete the work in a timely fashion;
(b)
Post security in accordance with the requirements of Subsection
G of this §
152-6;
(c)
Indemnify the Town against all liability stemming from the applicant's
work; and
(d)
Provide the Town with satisfactory evidence of insurance as
determined by the Town, including liability insurance naming the Town
as additional insured.
(2) All repairs or upgrades to Town highways shall be made in accordance with the specifications established by the Town Highway Superintendent and must be approved by the Town Highway Superintendent. In addition, the applicant shall comply with all applicable laws and regulations, including, without limitation, the prevailing wage requirements of New York Labor Law. The applicant or its contractor shall obtain all governmental permits and approvals and obtain any private land rights that are necessary to make any required repairs or upgrades to Town highways. If the applicant does not wish to make such repairs or upgrades to Town highways, or is determined by the Town Highway Superintendent not to have the necessary capability to make such repairs or upgrades, then the applicant shall agree, in writing, to pay the Town for the cost of such repairs or upgrades to Town highways and post security in accordance with the requirements of Subsection
G of this §
152-6.
I. To the extent permitted by law, the applicant shall defend, indemnify,
and hold the Town harmless from all losses resulting from injury or
death of persons or damage to property arising from the applicant's
upgrades and repairs to Town highways.
J. If an applicant disagrees with any decision by the Town Board, the
Town Highway Superintendent, or the Town's engineering consultant
in the administration of this chapter, including, without limitation,
the extent or method of a proposed highway upgrade or repair, any
cost imposed upon the applicant, or an estimate of the amount of security
to be held by the Town, and the applicant and the Town are unable
to resolve their dispute through negotiation, the applicant may make
a written request to the Town Board appealing such decision and requesting
a public hearing, at which the applicant shall have the right to appear
and be heard. The Town Board shall hold such public hearing not fewer
than five days nor more than 30 days after such request. The Town
Board may reverse, modify, or affirm, wholly or partly, the decision
appealed from and shall make such decision as in its opinion ought
to have been made in the matter and, to that end, shall have all the
powers of the board, official, or consultant from whose decision the
appeal is taken. The Town Board shall issue a determination on the
applicant's request within 15 days of the public hearing. In
view of the Town's obligation to provide its residents with safe
and properly maintained highways, the Town Board's determination
shall be final.
K. In order to comply with the requirements of this §
152-6, an applicant shall have the option of entering into a road use agreement with the Town. A sample form of road use agreement meeting all the requirements set forth herein is attached to and made a part of this chapter as Appendix 1. The applicant may ask to modify such form or propose a
different form of road use agreement, but any such agreement must
be in a form approved by the Town Board and also approved by the Town
Attorney as to form, sufficiency, and manner of execution.
From time to time, updates to the Program Manual and the Technical
Manual may be published. The Town Board may from time to time update
or replace any manual referenced in this chapter by adopting a local
law referencing such new or updated manual, and thereafter the new
or updated manual shall be binding on all persons subject to this
chapter.
The Town Board may establish a schedule of fees relating to
applications, approvals, inspections, and enforcement under this chapter.
The Town Board may, by resolution, except an applicant from
the requirements of this chapter, provided that the Town Board makes
a finding that the Town highways to be used by the applicant will
be adequately protected and any damage to Town highways will be adequately
repaired by virtue of the requirements or conditions imposed upon
the applicant in connection with any federal, state, or local permit
or approval, including, without limitation, mitigation measures imposed
under the National Environmental Policy Act or the State Environmental
Quality Review Act.
The time periods prescribed herein in which the Town Board,
the Town Highway Superintendent, other Town official, or the Town's
engineering consultant shall act are not of the essence and shall
not be construed as imposing a limitation on the time to act.
In the event of any inconsistency between the provisions of
this chapter and the provisions of the Program Manual and the Technical
Manual, the provisions of this chapter shall control. In the event
any ordinances, local laws, and parts thereof are inconsistent with
this chapter, the provisions of this chapter shall govern and control.
If any part or provision of this chapter or the application
thereof to any person or circumstance shall be adjudged invalid by
any court of competent jurisdiction, such judgment shall be confined
in its operation to the part or provision or application directly
involved in the controversy in which such judgment shall have been
rendered and shall not affect or impair the validity of the remainder
of this chapter or the application thereof to other persons or circumstances.
This chapter shall take effect upon filing with the New York
Secretary of State.