HomeMy WebLinkAboutLL 2010 #4 Roadway Excavation and Construction LawTOWN OF DANBY LOCAL LAW #4 of 2010
EXCAVATION AND CONSTRUCTION IN MUNICIPAL
ROADWAYS AND HIGHWAY RIGHTS-OF-WAY
Be it enacted by the Town of Danby as follows:
SECTION 1: TITLE & APPLICATION; FINDINGS
1.1 This Local Law shall be known as “Local Law Number 4 of 2010”.
1.2 Local Law Number 4 of 2010 hereby supersedes any portion of any prior Local
Law or resolution that is inconsistent herewith.
1.3 Local Law Number 4 of 2010 applies only within the Town of Danby, Tompkins
County, New York.
1.4 The Town of Danby hereby finds and declares that the provision of safe travel
and the maintenance of safe public highways and roadways are of paramount
importance to the public. Further, highways are costly to build, repair and
maintain, and the Town of Danby expends substantial resources annually to
maintain, repair, preserve and protect such public highways. Thus, based
thereupon, and upon the authority granted to the Town of Danby under and
pursuant to Town Law § 64, Highway Law § 136, Articles 39, 40 and 41 of the
Vehicle and Traffic Law, and §§ 10(1)(a)(6) and 10(1)(a)(12) of the Municipal
Home Rule Law, the Town of Danby adopts this Local Law to preserve and
protect highways and related rights-of-way, and to ensure safe travel for all
persons traveling thereupon.
SECTION 2: DEFINITIONS
The following terms used in this Local Law shall have the following meanings:
APPURTENANT STRUCTURE – “Appurtenant Structure” means any temporary or
permanent structure or construct, other than a roadway or road surface, within the
area of any Highway, including those structures, constructs, and devices located
or installed over, upon, under, or adjacent to any such Highway, including, but
not limited to, signs, traffic control devices, waterlines, utility lines,
communications lines, culverts, ditches, drainage ways, manholes, fire hydrants,
curbs, driveways, guardrails, bridges, bridge supports and railings, fencing, and
often also including driveways.
CONSTRUCTION – “Construction” means the building, installation, repair,
replacement, or removal of any Appurtenant Structure or the construction,
installation, or removal of any roadway or road surface, including the repairs and
maintenance thereof.
CONTRACTOR – “Contractor” means any person or entity, including any landowner or
private citizen, firm, utility company or provider, transportation corporation, or
communications or cable company, that proposes to perform Excavation or
Construction under, in, or upon any Highway or any Appurtenant Structure
related to any Highway.
DEFAULT – “Default” means (1) any violation of the terms, requirements, or conditions
of this Local Law; or (2) the violation of any terms or conditions of any Permit; or
(3) performance of any Construction, Excavation, or other work not referenced in
any application; or (4) performance of any Construction, Excavation, or other
work upon any Highway, Appurtenant Structure, or other land not specifically
identified in the Application submitted to, or the Permit issued by, the Town of
Danby.
EXCAVATION – “Excavation” means any work, process, or construction that proposes
to or does
A. alter the surface of any Highway, or
B. affect the soils under any Highway, including, but not limited to, pavement cuts
and culvert installations, and also including road surface work and paving, or
C. affect any Appurtenant Structure of any Highway.
FEE – “Fee” means any charge or cost imposed or due under or as a result of this
Local Law. Fees may be imposed, updated, changed, or amended from time-to-
time by resolution of the Town Board of the Town of Danby.
HIGHWAY – “Highway” means each, every, and all public streets, public sidewalks,
public roads, public alleys, and public highways within the Town of Danby that
are Town of Danby highways by use, highways by dedication, and/or highways
by implication, including the paved or finished surfaces thereof, all signage, all
ditches, culverts, drains and drainage ways, all utility and similar structures and
appurtenances, and all land, improved or otherwise, within the bounds of the
highway rights-of-way.
HIGHWAY SUPERINTENDENT – “Highway Superintendent” means the elected or
appointed Highway Superintendent of the Town of Danby, and/or the Town of
Danby Director of Public Works, as applicable, together with the designees of
each such person who are given specific written authorization to act for such
Highway Superintendent or Director of Public Works under this Local Law.
PERMIT – “Permit” means any permit required under or pursuant to this Local Law.
SECURITY – “Security” means a deposit delivered to the sole custody of the Town of
Danby, free of reservations, restrictions, conditions or claims, to secure and
guarantee performance under any Permit and compliance with this Local Law.
This deposit may be (1) cash; or (2) an unconditional letter of credit approved by
the Town of Danby; or (3) a performance, completion, and indemnity bond
approved by the Town of Danby; or (4) a Certificate of Deposit irrevocably
assigned to the Town of Danby; or (5) any other form of undertaking as approved
by the Town of Danby for this purpose; or (6) any combination of the foregoing
approved by the Town of Danby.
WINTER WORK SEASON – "Winter Work Season" means the portion of the calendar
year begining on November 15 and ending on the subsequent April 1. The
Winter Work Season may be updated, changed, or amended from time-to-time by
resolution of the Town Board of the Town of Danby.
SECTION 3: PROHIBITIONS
3.1 No Contractor, public service company, transportation corporation, or other
person or entity shall conduct any Construction or make any Excavation, cut, or
breaking in, or otherwise open any Highway or sidewalk for any purpose
whatsoever, including, but not limited to, the making of any driveway connection
or the installation or repair or replacement of any culvert or other Appurtenant
Structure, without a Permit issued pursuant to the requirements of this Local Law,
except as described in Paragraphs 3.4, 3.5, and 3.6 of this Section.
3.2 No Contractor, public service company, transportation corporation, or other
person or entity may perform any Construction or Excavation, or other work in,
upon, or under any Highway, nor construct, repair, install, or build any
Appurtenant Structure, without a Permit, except as described in Paragraphs 3.4,
3.5, and 3.6 of this Section.
3.3 No Contractor, public service company, transportation corporation, or other
person or entity may spread, place, or distribute any substance upon a Highway
or within a highway right-of-way unless done pursuant to, and in compliance
with, a Permit, except as described in Paragraphs 3.4, 3.5, and 3.6 of this
Section.
3.4 In the case of an emergency, any Contractor, public service company,
transportation corporation, or other person or entity already having or possessing
rights to any Appurtenant Structure within any Highway may effect such
emergency repairs as are reasonably necessary; but such Contractor or other
person or entity must thereafter apply for a Permit upon the next business day.
3.5 This Local Law shall not apply to the installation of mailboxes and newspaper
boxes, or to house number signs and other means of identifying a residence.
3.6 This Local Law shall not apply to Construction, Excavation, or other work
performed upon, under or within Highways and related rights-of-way by the Town
of Danby or by Tompkins County, including Excavation, Construction, or other
work upon Appurtenant Structures.
SECTION 4: PERMIT REQUIRED
4.1 All Contractors, public service companies, transportation corporations, or other
persons or entities must obtain all appropriate and/or required Permits and
approvals from the United States, the State of New York, and the County of
Tompkins, or from their applicable subdivisions, prior to applying for a Permit
from the Town of Danby.
4.2 All Contractors, public service companies, transportation corporations, or other
persons or entities are required to obtain a Permit from the Town of Danby prior
to performing any Construction, Excavation, or other work in, upon, or under any
Highway, or before constructing, repairing, installing, or building any Appurtenant
Structure.
4.3 Each Permit issued by the Town of Danby will be valid only for the period of time
stated on the Permit.
4.4 Permits are not transferrable or assignable by any act or by operation of law.
4.5 If the Permit expires, a renewal Permit may be issued by the Town of Danby for
an additional fee and upon such additional or other terms, Security, or restrictions
as determined in the sole discretion of the Highway Superintendent.
4.6 When a common Construction or Excavation project involves more than one
Contractor, including public service companies and transportation corporations,
those Contractors shall together designate in writing a lead Contractor who shall
be responsible for obtaining a Permit, acting in compliance therewith, and for
compliance with the terms and requirements of this Local Law. Despite the
existence of a lead Contractor, all such other persons and entitles shall be and
be deemed Contractors under and pursuant to this Local Law.
SECTION 5: PERMIT PROCESS
5.1 Contractors must submit a completed application for a Town of Danby Permit
upon a form provided and approved by the Highway Superintendent. The
Highway Superintendent may develop and utilize one or more types of forms for
Permit applications as based upon any reasonable standard, such as, but not
limited to, the type of work to be performed (e.g., “culvert permits”, “driveway or
curb cut permits”, or “excavation permits”, etc.).
5.2 All Permit applications shall contain the following information or materials:
A. Project drawings and specifications for any Excavation or Construction as
required by the Highway Superintendent, including, where applicable,
surveys and/or plans sealed by a New York State licensed engineer or
architect in compliance with, inter alia, the New York State Education Law.
B. If the Contractor proposes to do work or perform any Excavation or
Construction upon or under any land outside of the Highway, the written
consent of the owners of each such parcel of land, and such written consent
must recite that such owner has reviewed the proposed Excavation or
Construction drawings and specifications and consents to, or otherwise
permits, such work.
C. Whenever required, a completed E n v i r o n m e n t a l A s s e s s m e n t F o r m ( “ E A F ” )
shall be submitted by the Contractor pursuant to the provisions of the State
Environmental Quality Review Act and its implementing regulations at 6
NYCRR Part 617 (together herein, “SEQRA”).
D. A Stormwater analysis of the impacts of any excavation or construction or
installation project upon the Highway and its Appurtenances. Such analysis
shall follow the requirements of any applicable Stormwater Local Law or
Ordinance, and/or shall comply with the terms of (i) the New York Standards
and Specifications for Erosion and Sediment Control manual, commonly
known as the “Blue Book”, and, as applicable, (ii) the State Pollutant
Discharge Elimination System (“SPDES”) General Permit for Construction
Activities GP-02-01 or GP-02-02 (each and all as now exist or as hereafter
codified, updated, changed or amended). Any information and any
Stormwater Pollution Prevention Plan (“SWPPP”) shall be designed to
contain any increases in stormwater and prevent any erosion of the Highway
and any Appurtenances, as well as prevent stormwater pollution and
sedimentation.
E. An application Fee, as established by a resolution of the Town Board of the
Town of Danby.
F. A proposal for the amount and type(s) of Security.
G. Construction and Excavation start dates and completion dates.
H. Any other information the Highway Superintendent may require, including,
but not limited to, traffic control plans and proof of a right to enter any private
property.
5.3 Whenever an EAF is required, no Permit may be issued until the SEQRA review
process has been completed.
SECTION 6: WINTER WORK
6.1 Permits for Construction, Excavation, or other work during the Winter Work
Season will, generally, be issued only at the discretion of the Highway
Superintendent and, generally, only for emergency work.
6.2 In the event that a Winter Work Season Permit is issued, the following temporary
remediation and other requirements apply:
A. All Highway shoulders shall require additional materials and compaction as
determined by the Highway Superintendent.
B. Temporary pavement and road surface restorations may be made by (i) the
placement and compaction of a minimum of two layers of dust-bound crushed
stone, each of a compacted thickness of four inches on the prepared sub
grade, followed by a layer of bituminous concrete, winter mix, six inches in
compacted thickness, on top, or (ii) as otherwise required by the Highway
Superintendent.
C. No frozen material shall be placed in Excavation areas.
D. Daily inspections shall be required and paid for by the Contractor. Whenever
required by the Highway Superintendent, the Contractor shall perform any
needed repairs or maintenance within 24 hours of receipt of any notice
requiring the same
E. All Temporary repairs shall be maintained by the Contractor until a
permanent repair is made. The Contractor must monitor the site and perform
repairs upon at least 24 hours advance notice to the Highway
Superintendent.
F. As early as spring weather permits, the Construction, Excavation, or other
work area shall be inspected at the expense of the Contractor and a
permanent repair shall be made by the Contractor. Where required, in the
reasonable discretion of the Highway Superintendent, the permanent repair
may require re-construction of the road base or other re-construction
requirements.
G. Notwithstanding anything which may appear to the contrary in the Permit or
this Local Law, the Contractor assumes all responsibility for the safe
maintenance of the subject work site(s) during the Winter Work Season, and
further assumes all liability for damages resulting from, or in any way
connected with, the subject work and work area during this period.
SECTION 7: REVIEW OF APPLICATION; FEES, ESCROW DEPOSITS,
SECURITY, AND INSURANCE
7.1 The Highway Superintendent shall review each completed and submitted
application within 30 days. Any application may be rejected if:
A. The details, specifications, or drawings are incomplete or lack specificity.
B. The proposed project, or the proposed Construction, Excavation, or other
work, as determined by the Highway Superintendent, is or will be harmful or
injurious to any Highway.
C. The application has incomplete or inadequate stormwater controls, if
required, or an inadequate SWPPP.
D. The proposed Contractor is unable to meet the Security requirements of the
project and/or this Local Law.
7.2 The Highway Superintendent shall, for each application, determine and set an
amount of Security and liability insurance that must be posted and/or provided by
the Contractor prior to the issuance of any Permit.
7.3 The Security shall be in such amount(s) and form(s) as determined by the
Highway Superintendent.
7.4 The insurance shall be procured, paid for, and provided by the Contractor, who
shall maintain general all-risk liability, completed operations, and workers’
compensation insurance coverages, each in the minimum amount of
$1,000,000.00. Each such coverage or policy shall name the Town of Danby as
an additional insured and waive any subrogation rights as against the Town of
Danby.
7.5 For any Construction or Excavation that will be performed in phases, that will
require multiple inspections, or that will require the review of any engineer or
other paid consultant (such as, but not exclusively, to review any SWPPP,
surveys, engineering or design plans, etc., if and as required), the Highway
Superintendent may require the establishment of a Fee, Inspection, and Review
Escrow Account (“FIREA”) to be funded periodically by the Contractor in amounts
deemed reasonable by the Highway Superintendent to ensure that adequate
funds are available to pay for the costs of such Fees, inspections, and reviews.
7.6 The Town Board of the Town of Danby may establish, by Resolution,
standardized FIREA schedules for permits and other required reviews,
inspections, and reports created, performed, reviewed, or filed under, in accord
with, or in furtherance of this Local Law, which schedule shall (i) be limited to
such amounts as are reasonably estimated as the administrative and other costs
and expenses incurred by the Town Board of the Town of Danby in connection
with any matter arising under this Local Law, and (ii) be reviewed at least once
every year by the Town Board of the Town of Danby to assure that the fees
remain reasonable in light of actual and generally incurred costs and expenses
associated with Fee, inspection, and review requirements.
SECTION 8: PERMIT ISSUANCE
8.1 The Highway Superintendent, upon the receipt, review, and approval of any
application, and payment, posting, or provision of any Fees, Security, or
insurance, shall issue a Permit for such work upon such terms as determined in
the reasonable discretion of such Highway Superintendent.
8.2 The Highway Superintendent may require that special conditions be met as
deemed necessary, in his or her discretion, in conjunction with the Construction,
Excavation, or other work to be performed.
8.3 The Highway Superintendent may issue a revised or amended Permit at any time
to correct any error or omission, to require or reference a change in the scope of
work or the project specifications, to address the encountering of unforeseen
surface or subsurface conditions, including weather, or for any other reason.
SECTION 9: ENFORCEMENT OFFICER
9.1 The Highway Superintendent is hereby authorized, directed, and designated to
enforce the provisions of this Local Law.
9.2 These responsibilities may be delegated by the Highway Superintendent, subject
to approval by the Town Board of the Town of Danby.
SECTION 10: PERFORMANCE
10.1 The Contractor may only perform Construction, Excavation, or other work as
authorized by the express terms of the Permit.
10.2 In performing such Construction, Excavation, or other work, the Contractor shall:
A. Preserve and protect all roadway surfaces, the Highway, and each
Appurtenant Structure from needless destruction or alteration.
B. Commence the Construction, Excavation, or other work within 20 calendar
days of the date the Permit is issued, and thereafter perform the Construction,
Excavation, or other work, and all backfilling, tamping, repair, and restoration
work, as one continuous operation to complete the same by the earliest
practical date.
C. Complete the Construction, Excavation, or other work by the completion date
stated in or required by any Permit.
D. Restore and repair any affected Highway and Appurtenant Structure to then
current requirements.
E. Maintain at all times safe crossings, barricades, coverings, warning signs,
lighting, and any and all other safety devices, structures, or procedures as
may be required by any law or regulation, the New York State Department of
Transportation, OSHA, or in the exercise of diligent care.
F. Maintain at all times the Security and insurance coverage(s) required, and to
pay, whenever requested, any FIREA deposits.
G. Perform the Construction, Excavation, or other work in such a manner and at
such times as to not interfere with, or to minimize any obstructions to, the safe
flow of traffic.
H. Prevent stormwater pollution arising from any site where the Construction,
Excavation, or other work is performed. Proper installation and maintenance
of short-term and permanent stormwater management practices are required.
As and if applicable, compliance with any SWPPP and/or any SPDES Permit
conditions or requirements is mandatory.
I. Perform all backfilling and tamping with materials specified by the Highway
Superintendent. Such materials shall be free from clay, loam, or silt, and shall
be moistened and mechanically tamped until thoroughly compacted.
J. For all Construction, Excavation, or other work that may impair the provision
of any public utility, water supplies, or effect any closure or partial closure of
any Highway, it shall be the duty of every Contractor to give at least 72 hours’
advance written notice of the work and the effect thereof to all persons,
entities, or municipalities owning property or any Appurtenant Structures
within 500 feet of the vicinity of the proposed work. Proof of due notice shall
be filed with the Highway Superintendent at least 48 hours prior to the
commencement of the proposed work.
K. The Contractor shall provide prior notice to each and all utility companies,
public service companies, and municipalities of the proposed Construction,
Excavation, or other work, requesting such company or municipality mark or
otherwise identify the location or course of any underground or other utilities.
No Construction, Excavation, or other work shall commence until all utilities
and underground appurtenances are so marked and the rules and
regulations of the New York State Public Service Commission and the “Dig
Safely New York” program have been fully complied with.
L. All Appurtenant Structures shall be built, repaired, and installed in
accordance with all applicable laws, regulations, and rules, including, but not
limited to, the New York State Manual of Uniform Traffic Control Devices.
M. The Contractor shall preserve, protect, and maintain (including maintenance
of the distribution of) all utilities encountered or affected by or during
performance of any work, Excavation or Construction.
10.3 If the Construction, Excavation, or other work is not completed by the completion
date stated in or required by any Permit, any Construction, Excavation, or other
work must cease until a Renewal Permit or a new Permit is issued.
SECTION 11: REVOCATION OF PERMIT; DEFAULTS
11.1 A Permit may be revoked by the Highway Superintendent, after notice to the
Contractor (or other permittee), for any violation of any condition of the Permit, for
the violation or of any provision of, or non-compliance with, this Local Law, for the
violation of any provision of any other applicable ordinance or law relating to the
work, or for the existence of any condition or the doing of any act constituting or
creating a nuisance or endangering the lives or properties of others.
11.2 The following terms and conditions shall apply to the revocation of any Permit
and/or the occurrence of any Default:
A. Written notice of any such violation or condition shall be served upon the
Contractor or his agent engaged in the work. The notice shall contain a brief
statement of the grounds relied upon for revoking the Permit.
B.Notice may be given either by personal delivery thereof or by registered
United States mail addressed to the person notified.
C. Contractor may be granted one period of three days from the date of the
notice to correct the violation and to proceed with the diligent prosecution of
the work authorized by the Permit, before said Permit is revoked.
D. When a Permit has been revoked and the work authorized by the Permit has
not been completed, the Highway Superintendent shall cause such work as
may be necessary to be performed to restore the Highway to as good a
condition as before the Construction, Excavation, or other work was
undertaken. Such performance and work may be undertaken by the Highway
Superintendent’s employees and staff, or by any independent contractor
hired by the Town of Danby to perform such work. All expenses and costs
incurred to restore the Highway shall be recovered from any posted Security,
or if the same is inadequate to cover the costs and expenses thereof, then
from the Contractor.
E. The failure of any Contractor to cure any Default or cure any conditions stated
within the above-referenced notice within such three days shall be a Default
that shall entitle the Town of Danby to collect and utilize any Security or
FIREA deposit for any purpose related to the Contractor’s Permit, including,
but not limited to, the repair of any damage, the completion of the project, or
the hiring of any third party to complete the project. No default, nor the
completion of the project by any third party or the Town of Danby, shall
relieve the Contractor of any obligation or expense imposed under this Local
Law, or as may otherwise be imposed by any other law or regulation.
11.3 Notwithstanding the foregoing terms, conditions, and requirements, whenever
the Highway Superintendent believes that there is any emergency, the Highway
Superintendent may issue a “Stop Work Order.” Immediately upon receipt of the
same, each Contractor shall cease work, secure the work site, and immediately
adhere to and complete all safety inspections and procedures as may be
required by law, regulation, or the terms of the Stop Work Order. Work may only
re-commence upon the written revocation of the Stop Work Order by the Highway
Superintendent.
SECTION 12: RENT OR HIGHWAY USE AND OCCUPANCY FEE; PERMANENT
USE OR OCCUPATION OF ROADWAY
12.1 Utility and other facilities commonly occupy areas of Highway rights-of-way,
whether allowed by law or pursuant to permission granted by the State of New
York or one of its agencies or municipalities. Certain uses of the Highway are
and remain subordinate and subject to the regulation of the Town of Danby and
the use of Highway rights-of-way by the public. As to Highways regulated by this
Local Law:
A. Public, private, municipal and State utility facilities will be permitted to use
and occupy the municipality’s highways in accordance with any franchised
right or privilege granted by statute, such as, but not exclusively, those
contained in the New York State Public Service Law and/or Transportation
Corporations Law.
B. The Town of Danby reserves and preserves the right to assess, impose and
collect rent or a highway use and occupancy fee from any Contractor,
landowner, service provider, or system owner or operator occupying and
using the property or Highways of the Town of Danby for private or
commercial purposes for any period of time exceeding 6 months. Such rent or
fee, if assessed, shall be calculated by the Highway Superintendent based
upon any rational and neutral standard, including, but not limited to: (i) the
recommendation of the Town Board of the Town of Danby; (ii) the
recommendation of the Tompkins County Assessment Office; (iii) the amount
of rent or fees charged for similar uses by the State of New York, the New
York State Department of Transportation, or any other or municipality similarly
situate to the Town of Danby; (iv) the fair market value for the use or of the
property utilized; or (v) the recommendation of an appraiser or other qualified
consultant utilized by the Highway Superintendent or the Town Board of the
Town of Danby.
C. The Town of Danby may require such Contractor, landowner, service
provider or system owner or operator to enter into an easement and right-of-
way agreement (“ERA”) or a consent and lease agreement (“CLA”) to utilize
such public property and permit the objects or facilities to remain upon
municipal land for private or commercial purposes. The municipality and the
Contractor, landowner, service provider or system owner or operator will
discuss and attempt to mutually agree upon the terms and conditions of such
ERA or CLA.
D. To the extent possible, the municipality shall impose rent or a highway use
and occupancy fee upon a non-discriminatory and competitively neutral
basis.
E. Notwithstanding anything to the contrary in this Section, the Town of Danby
may, but is not required to, negotiate with any Contractor, landowner, service
provider or system owner or operator for the in-kind provision of services or
other valuable consideration in lieu of all or a portion of the amount that
would otherwise be required to be paid. This option of the municipality shall,
to the extent practical, be applied in a non-discriminatory and competitively
neutral manner with respect to the value received by the municipality.
F. All payments of rent or highway use and occupancy fees shall be paid and
collected upon a quarterly or calendar year basis, unless otherwise expressly
set forth in such ERA or CLA.
G. As to all existing utility and other facilities now within the Highway, no rent or
highway use and occupancy fees shall be required to paid and collected
unless and until the owner of such facilities seeks to construct, reconstruct,
replace, upgrade, or repair such existing facilities or otherwise applies for a
Permit under or as required by this Local Law. Absent any need for a Permit,
such facilities may be allowed to remain within the Highway free of rent or
highway use and occupancy fees. Notwithstanding the foregoing clauses, the
Town of Danby may require the user or owner of any existing facilities to
submit a permit application: (i) whenever the Highway Superintendent
reasonably believes that such facilities need to be constructed, reconstructed,
replaced, upgraded, or repaired so as to avoid interference with the use of
the Highway by the Town of Danby, any other municipality, or the State of
New York, or to protect the safe and unobstructed use of the Highway right-of-
way by the public; (ii) in conjunction with a highway construction or
maintenance project that may require the relocation of any facilities,
particularly where the work to be undertaken in relocating such facilities may
interfere with the free and safe flow of traffic or where the facilities which are
located within a clear zone or deflection zone (as such terms are defined by
NYSDOT); or (iii) upon the 10th anniversary of the adoption of this Local Law.
12.2 It may not be feasible in all circumstances to strictly comply with the requirements
of this Section, and therefore, the Town of Danby may permit a waiver of, or a
deviation from, the standards and requirements of this Section (including the
waiver or partial waiver of any rent or fee) upon making a written determination:
(i) that such waiver or deviation will not adversely affect the traveling public; (ii)
that such waiver or deviation will not adversely affect the maintenance or safe
operation of the Highway; and (iii) that such variance or deviation is not in conflict
with any other applicable law or regulation.
SECTION 13: INSPECTIONS
13.1 Until the Construction, Excavation, or other work is completed, the Town of
Danby may furnish and charge a fee for an inspection for each day that such
work is in progress.
13.2 Inspections shall be made for the sole purpose of verifying compliance with the
Permit or for verification that the materials and processes used will result in a
finished job that is consistent with Town of Danby specifications.
13.3 No inspection is made for the purposes of reviewing, recommending, or verifying
safety practices. Safety compliance and safety inspections are and shall be and
remain the sole responsibility of the Contractor.
13.4 The Fee for each such inspection shall be promptly paid upon request.
SECTION 14: RESTORATION
14.1 After performance and/or completion of any Construction, Excavation, or other
work, the Highway and each Appurtenant Structure shall be repaired and
restored in a permanent manner satisfactory to the Highway Superintendent and/
or in accord with Permit requirements.
14.2 To the extent possible, any repair or restoration must match the original Highway
or Appurtenant Structure in type, color, structure, materials, grade, and texture, in
compliance with then current applicable specifications therefor.
14.3 Upon completion of the work and after restoration pursuant to the terms of this
Local Law, any remaining amount of any deposit or Security shall be returned or
released, as applicable.
SECTION 15: WAIVERS
15.1 Where the Highway Superintendent finds that, due to the special circumstances of
a particular case, a waiver of certain requirements is justified, a waiver of any one
or more requirements of this Local Law may be granted. In all cases, no waiver
shall be granted unless the Highway Superintendent finds and records in writing
that:
A. Granting the waiver would be keeping with the intent and spirit of this Local
Law and is in the best interests of the community and the Town of Danby.
B. There is no adverse effect upon the Highway or any Appurtenant Structure.
C. There is no adverse impact upon the ability to safely travel upon such Highway.
D. There are special circumstances involved in the particular case.
E. Denying the waiver would result in undue hardship, provided that such
hardship has not been self-imposed.
F. The waiver so requested or granted represents the minimum necessary degree
of variation from the requirements of this Local Law or the Permit.
SECTION 16: OFFENSES; PENALTIES; ENFORCEMENT
16.1 Any Contractor or other person or entity that violates any of the provisions of this
Local Law shall be guilty of a misdemeanor punishable by a criminal fine
between $500.00 and $2,000.00, or a sentence of imprisonment not to exceed
15 days, or both.
16.2 Each week of continued violation shall be and be deemed a separate offense.
16.3 For the purposes of conferring jurisdiction upon courts and judicial officers, such
violation shall be deemed an unclassified misdemeanor and all provisions of law
relating generally to misdemeanors shall apply.
16.4 In lieu of the foregoing and at the election of the Town of Danby, any violation of
this Local Law shall subject any Contractor, person, or other entity or party to a
civil penalty of not less than $100.00 and not more than $500.00 for any first
violation, and to a civil penalty of not less than $250.00 and not more than
$1,000.00 for any subsequent violations, with such penalties to be recovered in a
civil action in the name of the Town of Danby.
16.5 The application of any sentence or penalty shall not preclude the enforced
removal or prevention of any prohibited conditions or violations of the Permit or
this Local Law.
16.6 Nothing in this Local Law shall prohibit the Town of Danby from seeking any
other relief as may be provided for or allowed by law or in equity, or be deemed
to effect an election of remedies by the Town of Danby.
16.7 Any fine or penalty provided for in this Local Law is intended to be in addition to,
and not in lieu of, any rights or remedies the Town of Danby may have in such
circumstances.
SECTION 17: APPEALS
17.1 Any aggrieved person or entity may appeal any action or determination of the
Highway Superintendent or any designee to the Town Board of the Town of
Danby by filing a written statement setting forth the reasons for such appeal.
17.2 Such statement shall be filed within 5 days of the delivery or filing of any action or
determination from which the appeal is taken, time being of the essence.
17.3 Upon receipt of such appeal, the Town Board of the Town of Danby shall hold a
hearing within 30 days and, after a review of all evidence, shall affirm, modify, or
annul the appealed from action or determination.
SECTION 18: ARTICLE 78
18.1 The actions and determinations of the Town of Danby, and its elected officials,
employees, and agents shall each be deemed “final determinations” for purposes
of Article 78 of the New York Civil Practice Laws and Rules (“CPLR”).
Notwithstanding this, standing under said Article 78 of the CPLR shall only be
appropriate after the exhaustion of any administrative appeals as provided for in
this Local Law.
SECTION 19: LIABILITY AND INDEMNITY
19.1 The Contractor assumes sole responsibility for the work site and all related or
adjacent areas and lands and agrees to assume all responsibility for any injury
or damage that may or does occur as a result of any Excavation, Construction, or
other work, including, but not limited to, traffic control, grubbing, paving, clean up,
remediation, or restoration work.
19.2 The Contractor, to the fullest extent permitted by law, shall indemnify and hold the
Town of Danby harmless from and against any, each, and all losses, actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds,
bills, specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, and
demands whatsoever, in law, admiralty, or equity (all together hereafter, “Claims”),
including, but not limited to, reimbursement to the Town of Danby any amount
expended for any and all experts’, consultants’, attorneys’ and engineering fees
and expenses arising from or in relation to any Claim.
19.3 The Town of Danby shall not be liable or responsible for any injury to persons or
damage to property due to any acts or failures to act under or pursuant to any
Permit or this Local Law unless it is proven to a reasonable degree of certainty that
such injury or damage was solely caused by a willful or intentional act of the Town
of Danby.
SECTION 20: CONSTRUCTION WITH OTHER LAWS
20.1 This Local Law is intended to supplement and augment the requirements of
zoning and land use regulations and rules, as well as the rules of other
governmental bodies and agencies, relating to the preservation and protection of
highways and public rights-of-way, and to ensure their continued safe operating
condition.
20.2 The provisions of this Local Law shall not diminish or impair the right of any other
governmental agency or body to require that any act be taken or avoided.
20.3 No variance, permit, grandfather rights, law, code, resolution, procedure, or rule
pertaining to zoning or land use shall supersede the requirements of this Local
Law.
SECTION 21: SEVERABILITY; INTERPRETATION
21.1 If the provisions of any article, section, subsection, paragraph, subdivision, or
clause of this Local Law shall be adjudged invalid by a court or other tribunal of
competent jurisdiction, such order or judgment shall not affect or invalidate the
remainder of any article, section, subsection, paragraph, subdivision or clause of
this Local Law. Any such invalidity shall be confined in its operation to the clause,
sentence, paragraph, section or article thereof directly involved in the controversy in
which such order or judgment shall have been rendered.
21.2 Section and other headings are for reference and convenience only and shall not
be deemed or construed to limit or define the requirements of clauses set forth
thereunder.
SECTION 22: EFFECTIVE DATE
22.1 This Local Law shall be and become effective immediately upon filing with the
New York Secretary of State.