§ 85-23. Requirements for concentrated traffic., Article III. Road Use and Preservation, Chapter 85. Streets and Sidewalks, Code of Ordinances, Oneonta, Town

If the Town Highway Superintendent determines that traffic generated by an applicant's construction activity will result in concentrated traffic, the applicant shall be required to comply with the following provisions:

(1)

The applicant shall be required to set forth a haul route declaration as set forth in the Program Manual.

(2)

The Town's engineering consultant shall examine each segment of the proposed haul route in order to:

(a)

Evaluate the Town highways on the proposed haul route for design; structural, geometric, or health and safety deficiencies, as those deficiencies are defined more fully by the Program Manual; and

(b)

Estimate the costs and procedures necessary to upgrade such Town highways on the proposed haul route if the Town's engineering consultant determines that the Town highways on the proposed haul route must be upgraded to accommodate the applicant's concentrated traffic; and

(c)

If available, propose an alternate haul route if required due to design deficiencies or if desired by the applicant to minimize estimated upgrade or repair costs to the haul route.

(3)

The Town's engineering consultant shall design or approve, in conjunction with the Town Highway Superintendent or the Town's Engineer, all structural, geometric, health and safety, and roadbed upgrades to Town highways necessary to accommodate the applicant's concentrated traffic, which upgrades shall be made at the applicant's expense in accordance with the provisions of Subsection A(8) of this § 85-23. An applicant that has completed upgrades to Town highways in accordance with this Subsection A(3) will not be responsible for repairing Town highways on the applicant's haul route provided that the applicant's actual traffic does not exceed the scope, volume, weight, or trips reported on the applicant's haul route declaration.

(4)

The Town's engineering consultant shall conduct all pre-use testing and threshold evaluation of each segment of a haul route that is a Town highway in accordance with the methods set forth in the Program Manual and the Technical Manual.

(5)

If no upgrades have been required and/or made to the Town highways on the proposed haul route and the Town's engineering consultant determines that the applicant's concentrated traffic is expected to cause damage to Town highways, the Town's engineering consultant shall provide the Town Highway Superintendent and the applicant with an estimate of the cost to repair such damage. Prior to the use of any haul route segment on Town highways, the applicant shall agree to make all such repairs at the applicant's expense in accordance with the provisions of Subsection A(8) of this § 85-23 (including the posting of appropriate security). If any haul route segment is on unpaved Town highways, the Town Highway Superintendent may require, upon the recommendation of the Town's engineering consultant, that such Town highways be subject to weekly monitoring and that any damage be repaired within five days at the applicant's expense in accordance with the provisions of Subsection A(8) of this § 85-23.

(6)

The Town's engineering consultant shall conduct all post-use testing and damage assessment of each segment of a haul route that is a Town highway in accordance with the methods set forth in the Program Manual and the Technical Manual. The Town's engineering consultant shall provide an estimate of the cost of repairing any actual damage to Town highways caused by the applicant's concentrated traffic. Upon receiving the estimate, the applicant shall make all such repairs at the applicant's expense in accordance with the provisions of Subsection A(8) of this § 85-23. Upon the satisfactory completion of the repairs and the approval of such repairs by the Town Highway Superintendent, any unused security shall be returned to the applicant.

(7)

Any security for performance and/or payment required under this article shall be in an amount set by the Town Board upon the recommendation of the Town's engineering consultant. Any such security shall be provided pursuant to a written security agreement with the Town, approved by the Town Board and also approved by the Town Attorney as to form, sufficiency, and manner of execution. At the Town Board's discretion, the security may be in the form of:

(a)

A performance or payment bond, as applicable;

(b)

The deposit of funds with the Town;

(c)

An irrevocable letter of credit from a bank authorized to do business in New York State; or

(d)

Other financial guarantee acceptable to the Town Board.

(8)

An applicant shall be permitted to undertake upgrade or repair work only if the Town Highway Superintendent determines that the applicant, or a contractor hired by the applicant, has the capability and experience to make the necessary repairs or upgrades. All work shall be performed pursuant to an agreement in writing between the applicant and the Town, which shall require, among other things, the applicant or its contractor to complete the work in a timely fashion, post security in accordance with the requirements of Subsection A(7) of this § 85-23, indemnify the Town against all liability stemming from the applicant's work, and provide the Town with satisfactory evidence of insurance as determined by the Town, including liability insurance naming the Town as additional insured. All repairs or upgrades to Town highways shall be made in accordance with the specifications established by the Town Highway Superintendent and must be approved by the Town Highway Superintendent. In addition, the applicant shall comply with all applicable laws and regulations, including without limitation the prevailing wage requirements of New York Labor Law. The applicant or its contractor shall obtain all governmental permits and approvals and obtain any private land rights that are necessary to make any required repairs or upgrades to Town highways. If the applicant does not wish to make such repairs or upgrades to Town highways, or is determined by the Town Highway Superintendent not to have the necessary capability to make such repairs or upgrades, then the applicant shall agree in writing to pay the Town for the cost of such repairs or upgrades to Town highways and post security in accordance with the requirements of Subsection A(7) of this § 85-23.

(9)

The applicant shall pay the Town for all of the Town's reasonable costs, attorneys' fees, and expenses in implementing the requirements of this § 85-23, including without limitation the fees of the Town's engineering consultant in conducting all activities required hereunder and under the Program Manual and Technical Manual. The Town may in some cases provide the applicant with an estimate of such costs, attorney's fees, and expenses, and the Town Board may require the applicant to place funds in escrow to cover such costs, attorneys' fees, and expenses before the Town incurs any such costs, fees and expenses.

(10)

The applicant shall defend, indemnify, and hold the Town harmless from all losses resulting from injury or death of persons or damage to property arising from the applicant's upgrades and repairs to Town highways.

(11)

If an applicant disagrees with any decision by the Town Board, the Town Highway Superintendent, or the Town's engineering consultant in the administration of this article, including without limitation the extent or method of a proposed highway upgrade or repair, any cost imposed upon the applicant, or an estimate of the amount of security to be held by the Town, and the applicant and the Town are unable to resolve their dispute through negotiation, the applicant may make a written request to the Town Board appealing such decision and requesting a public hearing at which the applicant shall have the right to appear and be heard. The Town Board shall issue a public notice of hearing and shall hold such public hearing not fewer than five days nor more than 45 days after such request. The Town Board may reverse, modify, or affirm, wholly or partly, the decision appealed from and shall make such decision as in its opinion ought to have been made in the matter and, to that end, shall have all the powers of the board, official, or consultant from whose decision the appeal is taken. The Town Board shall issue a determination on the applicant's request within 30 days of the public hearing. In view of the Town's obligation to provide its residents with safe and properly maintained highways, the Town Board's determination shall be final.