N.Y. Comp. Codes R. & Regs. tit. 21 § 208.3

Current through Register Vol. 46, No. 50, December 11, 2024

Section 208.3 - Procedure

The award of a lease to use an authority facility under this Part shall be by open competitive process. Prior to the award of any lease, the authority shall advertise the availability of the opportunity to acquire such lease in the New York State Contract Reporter and evaluate all proposals received from qualified transportation corporations. The authority shall allow potential lease holders reasonable time and opportunity to inspect the authority's facilities and to develop a responsive proposal. The authority shall also, however, administer the proposal, evaluation and award process in a prompt and business-like manner.

(a) Proposals. Each proposal will be required to include:

(1) a plan and schedule for initial installation, including a traffic control plan in conformance with the New York State Department of Transportation's Manual of Uniform Traffic Control Devices (MUTCD);

(2) a plan for access to the fiber optic facilities for operation and maintenance including traffic control plans in conformity with the MUTCD;

(3) the capacity of the equipment proposed to be provided, an analysis of projected demand and a plan to serve that demand by the proposed installed capacity;

(4) a statement of the process by which requests for private cable access to the leasee's excess conduit capacity may be made by other users and the terms and conditions of such use;

(5) the proposed payment to be made for occupancy of the authority's structures and right-of-way;

(6) the method of removal or abandonment of the equipment to be implemented at the end of the lease term; and

(7) any other information the authority may deem material in respect to a specific authority facility or site.

Such other information as may be material and helpful in the evaluation of the proposals may be included in a concise form.

(b) Review and evaluation. Review and evaluation of the proposals will be by the executive director, the chief engineer and general counsel with such staff and/or outside assistance as they shall deem appropriate and necessary. The authority may consult with other governmental agencies in the course of its review, but, under the provisions of the Public Authorities Law, sole responsibility for the determination of the award shall rest with the authority. The authority shall require the favorable recommendation of the chief engineer as a precondition to any award. The criteria for evaluation will include:

(1) The relative degree of disruption of the right-of-way anticipated during installation and maintenance and the extent to which such disruption may affect traffic flow and safety, landscaping, and protected resources, as well as the equipment's appearance, its structural and controlled access integrity and its ability to be maintained, widened, and otherwise modified. To minimize disruption all proposals should be in accordance with the following guidelines:

(i) Except where the use of an authority structure is necessary, all fiber optic equipment should be installed in underground ducts located as far as practical from any roadway or graded shoulder and no part of the fiber optic equipment should be visible above ground.

(ii) The initial installation should include all apurtenances necessary or incidental to the operation of the equipment, and should include all manholes and other duct access points at appropriate spacings to permit the pulling of additional cables into the duct system without further excavation or construction.

(iii) Where the equipment is to be installed on a structure, the location shall be subject to the approval of the chief engineer and shall be such that it will not interfere with the regular maintenance and operation of the facility. Installation on structures shall not be visible to motorists or pedestrians using the facility and shall not significantly alter the appearance of the bridge in any way.

(iv) All methods and details of the installation and subsequent maintenance shall be subject to the review and approval of the authority. Access to authority facilities will normally be limited to weekday hours between 9 a.m. and 3 p.m.

(v) Upon completion of the installation and any subsequent maintenance activities, all disturbed areas shall be returned to their original condition unless agreed to in writing by the authority.

(vi) The installation should be along the longitudinal right-of-way only, connecting a single entry point to a single exit point. Service connections to and from the authority's right- of-way should not be proposed.

(vii) Proposals should take into account planned or likely improvements or alterations in the authority's facilities.

(viii) The safety of the public and the structural integrity and maintainability of the authority's facilities are of primary importance to the authority. In no case will any installation be permitted that will adversely impact either.

(2) Measures proposed for access to the fiber optic transmission equipment from outside the right-of-way, which should be consistent with the following requirements:

(i) Access shall be subject to the approval of the authority and shall be by existing authority pedestrian or vehicular access route unless otherwise agreed to in writing and shall be generally limited to weekdays between the hours of 9 a.m. and 3 p.m.

(ii) The authority may impose conditions for policing and other controls as are necessary to assure the safety of the public and to avoid or minimize interference with facility use. During installation, operation and maintenance barriers and/or signs and/or warning devices conforming to the MUTCD shall be installed as required to alert and protect facility users to activities within or adjacent to the right-of-way.

(iii) Where signs conforming to the MUTCD are placed in the vicinity of the roadway, shoulder, or adjacent clear recovery area, they shall be collapsible upon impact from a vehicle.

(iv) At no time will the parking, stopping or placement of vehicles, equipment or materials be allowed on the roadway, shoulders or adjacent clearway without the expressed permission of the authority.

(3) The total capacity being installed. Installation of fiber optics equipment shall be of a character and capacity to preclude the programmed need for any additional disruption. Absent compelling circumstances, the authority will not permit installation of additional ducts or conduits during the term of the lease. The authority will, however, allow installation of additional cable and/or replacement of existing cable within a previously installed duct or conduit to the extent it can be accomplished with minimal direct or indirect interference with the maintenance and operation of the facility.

(4) The degree to which the equipment, such as duct space, will be available for use by others and the proposed terms and conditions of such use. There is a presumption that it is in the public interest for the competing transportation corporations to provide service within the available corridors. In order to protect and encourage such competition and ensure minimum future intrusion into the right-of-way and to avoid disturbance to traffic by installation of additional fiber optic equipment, the proposer is required to provide a description of the facilities, such as duct space, which will be available to others and how others will be provided fair access to the equipment proposed to be installed. An outline of the terms and conditions under which the proposer would make such equipment available to other services shall be provided.

(5) Proposed payment or payments to be made for use and occupancy of the authority facility. The authority expects to charge an assessment for the privilege of permitting installation and operation of fiber optic transmission equipment on its facilities.

N.Y. Comp. Codes R. & Regs. Tit. 21 § 208.3