[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.
[Adopted 12-14-2009 by L.L. No. 2-2009]
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.
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.
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.
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:
J.
Driveways shall be graded to the satisfaction of the Superintendent
of Highways.
[Adopted 4-14-2014 by L.L. No. 2-2014]
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.
As used in this article, the following terms shall have the
meanings indicated:
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]
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.
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.
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.
The date upon which the developer notices the Town that the
project is complete.
The Town of Naples.
The Town Board of the Town of Naples.
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.
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.
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)
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.
(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:
(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
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[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.
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.
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.
