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HomeMy WebLinkAboutNYSDEC/Mattituck Inlet Eros ELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECOI~DS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (631) 765-6145 Telephone (631) 765-1800 southoldtown.northfork.net OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 145 OF 2003 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON MARCH 11, 2003: RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs supervisor Horton to execute an agreement between the Department of Environmental Conservation of the State of New York and the Town of Southold for the Mitigation of Shoreline Erosion Damage at Mattituck Inlet, Feasibility Study. Elizabeth A. Neville Southold Town Clerk GREGORY F. YAKABOSKI TOWN ATTORNEY greg.yakaboski@town.southotd.ny.us PATRICIA A. FINNEGAN ASSISTANT TOWN ATTORNEY . patricia.finnegan~,town.southold.ny.us JOSHUA Y. HORTON Supervisor Town Hall, 53095 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone (631) 765-1939 Facsimile (631) 765-1823 OFFICE OF TI-IE TOWN ATTORNEY · TOWN OF SOUTHOLD FedEx #836679987959 March 12, 2003 Richard Tuers NYS Dept. of Environmental Conservation Division of Water Bureau of Flood Protection 625 Broadway, 4th Floor Albany, NY 12233-3507 Re: A.qreement between State of New York and the Town of Southold - Mitigation of Shoreline Erosion Damage at Mattituck Inlet C004394 Dear Mr. Tuers: Enclosed please find the following documents in regard to the above- referenced agreement concerning Mattituck Inlet in the Town of Southold, New York: \ Certified Resolution authorizing Supervisor Horton's execution of the agreement, adopted by the Southold Town Board on March 11,2003 Five (5) duplicate original agreements between the State of New York and the Town of Southold signed by Supervisor Horton (and notarized) · Appendix A · Appendix B o Feasibility Cost Sharing Agreement between the Department of the Army and the State of New York ° Continuing Authorities'Program Project Management Plan for. Mattituck Harbor, New. York, dated February 2002 ° Four (4) additional signatory pages for contract #C004394 signed by Supe~,isor Horton (and notarized) AGREEMENT BETWEEN THE STATE OF NEW YORK AND THE TOWN OF SOUTHOLD, NEW YORK, FOR THE MITIGATION OF SHORELINE EROSION DAMAGE AT MATTITUCK INLET, NEW. YORK FEASIBILITY STUDY This Agreement is entered into by and between the Department of Environmental Conservation of the State of New York (hereinafter referred to as the "State") and the Town of Southold, New York, 53095 Main Road, Southold, New York 11971 (hereinafter referred to as the "Town"). The Town and the State are jointly referred to as the "non-federal parties." WITNESSETH, THAT WHEREAS, Section 105(a) of Water Resources Development Act of 1986 (Public Law 99-662) provides that the costs of study of a water resources project shall be cost shared in the same percentage as the purposes of the project; and WHEREAS, the Town has asked the State to represent its interests concerning preparation and development of the Mitigation of Shoreline Erosion Damage Study at Mattituck Inlet (hereinafter the "Study"); and WHEREAS, the State has the authority Pursuant to Section 1536 of Chapter 7 of Title ,3 of the Unconsolidated Laws of the State of New York to represent the Town in matters concerning the Study; and WHEREAS, the Town hereby represents that it has the authority and capability to furnish the non-federal cooperation as described in this Agreement; and WHEREAS, the State and the Town understand that entering into this Agreement in no way obligates the U.S. Army Corps of Engineers or the federal government (hereinafter the "Government") or either of the non-federal pa~ies to implement a project, and that whether any of those parties budgets for implementation funding depends upon the outcome of the Study and whether the proposed solution is consistent with New York State's Coastal Management Progrmn; NOW, THEREFORE, the State and the Town do hereby agree to the following terms and conditions of non-federal cooperation in the conduct of the Study. ARTICLE 1 - DEFINITIONS For the purposes of this Agreement: As used herein, the terms and conditions established in the separate agreement between the Government and the State for the Study, unless specifically altered by this Agreement, shall have the same meaning as established in that separate agreement which is attached hereto and incorporated herein, and the Town agrees to the terms and conditions in that agreement applicable to non-federal concerns or responsibilities to the extent said terms and conditions are applicable to the'Town's obligations hereunder. The term "Study Costs" shall mean all disbursements by the Government, pursuant to the separate agreement between the Government and the State, from federal appropriations or fi:om funds made available to the Government by the non-federal parties, and all costs of work performed by the non-federal parties pursuant to this Agreement. Study costs shall include, but not be limited to: labor charges; direct costs; overhead expenses; supervision and administration costs; the costs of participation on the Study Management and Coordination Team in accordance with Article IV of this Agreement; the costs of contracts with third parties, including termination or suspension charges; and any termination or suspension costs (ordinarily defined as those costs necessary to terminate. ongoing contracts or obligations and to properly safeguard the work already accomplished) associated with this Agreement. The term "estimated Study Costs" shall mean the estimated cost of performing the Study as of the effective date of this Agreement. The term "Study period" shall mean the time period for conducting the Study, commencing with the execution of this Agreement by the District Engineer and ending when the District Engineer releases the Public Notice of the completion of the Feasibility Study. For the purposes of this Agreement the study period will commence December 1, 2002 and continue through December 1, 2005. The term "PMP" shall mean the Project Management Plan, which is attached to this Agreement and which shall not be considered binding on any of the parties and is subject to change by the Government, in consultation with the non-federal parties. The term "negotiated costs" shall mean the costs of all in-kind services to be provided by the non-federal parties in accordance with the PMP and credited to their respected shares. The term "fiscal year" shall mean one fiscal year of the Government. The Government fiscal year begins on October 1 and ends on September 30. ARTICLE II - OBLIGATIONS OF PARTIES The non-federal parties are required to contribute a total of fifty (50) percent o£all Study Costs in cash or credit for costs incurred as part of the Study as discussed in Article III of this Agreement. The negotiated costs incurred shall be subject to audit by the Government to determine reasonableness, allocability, and allowability. The estimated Study Costs are $485,000 and the non-federal portion of the estimated Study Costs ($242,500) is further cost-shared between the State and the Town on a 70%/30% basis, respectively. The state portion of estimated Study Costs is $169,750 and the Town 'portion is $72,750. The state/federal feasibility cost shared agreement allows for $25,000 of in-kind services to be provided by the non-federal parties. Therefore, the actual non- federal cash contribution may be reduced by an mount not to exceed $25,000. Credits shall be applied to the party providing the service. The town's share will be paid by the State in the first instance and subseqUently reimbursed to the State by the Town. No federal funds may be used to meet either the town's or the state's share of Study Costs under this Agreement unless the expenditure of such funds is expressly authorized by statute as verified by the granting agency. The award of any contract with a third party for services in furtherance of this Agreement which obligates state appropriations shall be exclusively within the control of the State. The award of any contract by the Town with a third party for services in furtherance of this Agreement which obligates funds of the Town and does not obligate state appropriations shall be exclusively within the control of the Town, but shall be subject to applicable federal and state statutes and regulations. It is the understanding of the non- federal parties that federal procurement laws will not apply to such contracts with third parties awarded by the Town. However, if it is determined by the Government that they do apply, the Town shall comply with them. The State and the Town shall endeavor to assign the necessary resources to provide for the prompt and proper execution of the Study and shall, within the limits of law and regulations, conduct their respective Study-related efforts with maximttm flexibility as directed by the Study Management and Coordination Teanu established by Article IV herein. If the parties to this Agreement determine that there is no solution in which they have an interest or which is not in accord with their current policies and budget priorities, the State will proceed according to Article X of State/Federal Agreement. ARTICLE IH - METHOD OF PAYMENT The Town agrees to reimburse the State for all monies expended on its behalf at the completion of the StUdy. The actual cash contribution of the Town may be reduced by the costs of the services provided by the Town that fall within the categories of services specified in the PMP to be provided by the non-federal parties and approved as eligible by the Government as specified in Article II.A. ARTICLE IV - STUDY MANAGEMENT AND COORDINATION TEAM To provide for consistent and effective communication, the Town, the State and the Government shall appoiut named senior representatives to the Executive Committee.' Thereafter, the Executive Committee shall meet regularly until the end of the Study period. Bo Until the completion of the Study period, the Executive Conm~ittee shall generally oversee the Study consistency with the PMP. The Executive Committee may make recommendations to the District Engineer on matters that it oversees, including suggestions to avoid potential sources of dispute. The Government in good faith shall consider such recommendations. The Govermnent has the option to accept, reject, or modify the Executive Committee's recommendations. The costs of participation on the Executive Connnittee (including the cost to serve on the Study Management and Coordination Team) shall be included in Study Costs and cost shared in accordance with the provisions of this Agreement. The Executive Committee shall appoint representatives to serve on a Study Management and Coordination Team. The Study Management and Coordination Team shall keep the Executive Committee informed of the progress of the Study and of significant pending issues and actions, and shall prepare periodic reports on the progress of all work items identified in the PMP. ARTICLE V - MAINTENANCE OF RECORDS The State and the Town each shall keep books, records, documents and other evidence pertaining to their expenses incurred pursuant to this Agreement to the extent and in such detail as will properly reflect their respective expenditures. The State and the Toxxm shall maintain such books, records, documents and other evidence for inspection and audit by authorized representatives of the Government and the parties to this Agreement. Such material shall remain available for review for a per/od of six (6) years following termination of this Agreement. 4 ARTICLE VI - RELATIONSHIP OF PARTIES The parties to tkis Agreement act in an independent capacity in the performance of their respective functions under this Agreement, and no party is to be considered the officer, agent, or employee of the other. Bo To the extent permitted by applicable law, any reports, documents, data findings, conclusions, or recommendations pertaining to the Study shall not be released outside the Study Management and Coordination Team, nor shall they be presented as representing the view of any party, unless all parties shall indicate agreement thereto in writing. ARTICLE VII - OFFICIALS NOT TO BENEFIT No member of or delegate to the Congress, or other elected official, shall be admitted to any share or part of this Agreement, or to any benefit that may arise therefrom. ARTICLE VIH - FEDERAL AND STATE LAWS In acting under their rights and obligations hereunder, all parties agree to comply with all applicable federal and state laws and regulations, including section 601 of Title VI of the Civil Rights Act of 1964 (Public Law 88,352), Department of Defense Directive 5500.11 issued pursuant thereto and published in Part 300 of Title 32, Code of Federal Regulations, and Army Regulation 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army." ARTICLE IX - TERMINATION OR SUSPENSION A. This Agreement shall terminate at the completion of the Study period. Within ninety (90) days of completion of the Study period, the Study Management and Coordination Team shall conduct a final accounting of Study Costs, which shall include disbursements by the Govermnent of federal funds, cash contributions by the non-federal parties, and credits for the costs of the non-federal parties. If such final accounting shows that the non-federal parties have provided more than fifty (50%) percent of the Study Costs in cash arid allowable credits, the Government shall reimburse the State for any excess of cash contributions and credits within thirty (30) days, subject to the availability of funds, and the State will credit the Town for its appropriate sham of any such reimbursement. If such final accounting shows that the non-federal parties' cash contributions and allowable credits are less than fifty (50%) percent of the total Study Costs, the State shall provide the Government any additional cash contribution required to bring the non-federal share to fifty (50 %) percent of total Study Costs within thirty (30) days of such notification by the Government. The Town is responsible for thirty percent (30%) of any such additional costs and agrees to reimburse the State for such within sixty (60) days of notification to such effect by the State. ARTICLE X - NOTICES Any notices to be provided hereunder shall be sent as follows: If to the State: New York State Department of Environmental Conservation Division of Water Bureau of Flood Protection 625 Broadway, 4th Floor Albany, New York 12233-3507 At,n: Richard Tuers If to the Town: Town of Southold 53095 Main Road Southold, New York 11971 Att: Supervisor Joshua Horton ARTICLE XI - FEDERAL AGREEMENT, PMP, and STANDARD CLAUSES (APPENDIX A AND B) Attached is the Feasibility Cost Shared Agreement between the Government and the State for the Mitigation of Shoreline Erosion Damage at Matt/tuck Inlet, New York, as identified in Article I.A. and incorporated herein. Attached is the PMP prepared by the Government for the Study for the Mitigation of Shoreline Erosion Damage at Mattituck Inlet, as identified in Article I.E. and incorporated herein. Standard clauses for all New York State (Appendix A) and New York State Deparlment of Environmental Conservation (Appendix B) contracts are attached. The To~vn shall comply with all applicable provisions contained therein. CONTRACT NUMBER C004394 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year appearing below their respective signatures. The State of New York In addition to the acceptance of this contract, [ also certify that original copies of this signature page will be attached to all other exact copies of this contact. Town of Southold Y. Horton, Supervisor Dated: to me knmx_~,._whor being dAqy sworn, dip depose and say that he/she is the . ~",D D0.YO I~'0"Y' (list title) of the / tgi'>/? Of', ~ O~0 [,.~4 (list political subdi('ision of agency or political subdivision), the political subdivision or agency thereof described in and which executed the within msttument; that he'she knows the seal of said political subdivision, that the.,s.~l affixe~kto sa:id,instrument is such seal; that it was so affixed by order, resolution or authority of ~_~0 [c~ (<0LO~ /L~rcc~/ (attach a certified copy of the order. resolution or the ordinance authorizing execution of this contract) of said political subdivision, and that he/she signed his/her name by that authority. MELANIE DORO~KI NOT%PUBLIC, State of New o, 01D04634870 ) ' -- . Oual~ed in Suffolk County - Notary~ublic ~'~C' ;,~i ..~ '~.. ' ~ .-.t,.. ,--, .¢ . ,' ..4 ATTORNEY GENERAL'S APPROyAL Z.?%, 7' '., ;-;Z, COMPTROLLER'S APPROVAL , .,,~ .o:,L,_..,~.~ ~'- ?: ~-,,, .- ! rO~p4E~ ~ CL Date APPENDIX A STANDARD CLAUSES FOR ALL NEW YORK STATE CONTRACTS 21~e parties to the attached contract, license, lease, amendment or other agreement of any kind (hereinafter, "the contract!' or "this contract") agree tO be bound by the following clauses which are hereby made a part of the contract (the word "Contractor" herein refers to any party other than the State, whether a contractor, licenser, licensee, lessor, lessee or any other party): 1. EXECUTORY CLAUSE. In accordance with Section 41 of the State Finance Law, the State shall have no liability under this contract to the Contractor or to anyone else beyond funds appropriated and available for this contract. 2. NON-ASSIGNMENT CLAUSE. In accordance with Section 138 of the State Finance Law, this contract may not be assigned by the Contractor or its right, title or interest therein assigned, transferred conveyed, sublet or otherwise disposed of without the previous consent, in writing, of the State and any attempts to assign the contract without the State's written consent are null and void. The Contractor may, however, assign its right to receive payment without the State's prior written consent unless this contract concerns Certificates of Participation pursuant to Article 5-A of the State Finance law. 3. COMPTROLLER'S APPROVAL In accordance with Section 112 of the State Finance Law (or, if this contract is with the State University or City University of New York, Section 355 or Section 6218 of the Education Law), if this contract exceeds $10,000 (or the minimum thresholds agreed to by the Office of the State Comptroller for certain S.U.N.Y. and C.U.N.Y. contracts), or if this is an amendment for any amount to a contract which, as so amended, exceeds said statutory amount, or if, by this contract, the State agrees to give something other than money when the value or reasonably estimated value of such consideration exceeds $15,000, it shall not be valid, effective or binding upon the State until it has been approved by the State Comptroller and filed in his office. 4. WORKERS' COMPENSATION BENEFITS. In accordance with Section 142 of the State Finance Law, this contract shall be void and of no force and effect unless the Contractor shall provide and maintain coverage during the life of this contract for the benefit of such employees as are required to be covered by the provisions of the Workers' Compensation Law. kno~vn as the Human Pdghts Law) and all other State and Federal statutory and constitutional non- discrimination provisions, the Contractor will not discriminate against any employee or applicant for employment becanse of race, creed, color, sex, national origin, age, disability or marital status. Furthermore, in accordance with Section 220-e of the Labor Law, if this is a contract for the construction, alteration or repair of any pubhc building or public work or for the manufacture, sale or distribution of materials, equipment or supplies, and to the extent that this contract shall be performed within the State of New York, Contractor agrees that neither it nor its subcontractors .shall, by reason of race, creed, color, disability, sex, or national origin: (a) discriminate in hiring against any New York State citizen who is quaFrfied and available to perform the work; or (b) discriminate against or intimidate any employee hired for the performance of work under this contract. If this is a building service contract as def'med in Section 230 of the Labor Law, the~l, in accordance with Section 239 thereof, Contractor agrees that neither it nor its subcontractors shall by reason of race, creed, color, national origin, age, sex, or disabil/ty: (a) discriminate in hiring against any New York State citizen who is qualified and available to perform the work; or (b) discriminate against or intimidate any employee hired for the performance of work under this contract. Contractor is subject to fines of $50.00 per person per day for any violation of Section 220-e or Section 239 as well as possible termination of this contract and forfeiture of all moneys due hereunder for a second or subsequent violation. 6. WAGE AND HOURS PROVISIONS. If this is a public work contract covered by Article 8 of the Labor Law or a building service contract covered by Article 9 thereof, neither Contractor's employees nor the employees of its subcontractors may be required or permitted to work more than the number of hours or days stated in said statutes, except as otherwise provided in the Labor law and as set forth in prevailing wage and supplement schedules issued by the State Labor Department. Furthe~Taore, Contractor and its subcontractors must pay at least the prevailing wage rate and pay or provide the prevailing supplements, including the premium rates for overtime pay, as determined by the State Labor Department in accordance with the Labor Law. 7. NON-COLLUSIVE BIDDING REQUIREMENT. In accordance with Section 139-d of the State Finance Law, if this contract was awarded based upon the submission of bids, Contractor warrants, under penalty of perjury, that its bid was arrived at independently and without collusion aimed at restricting competition. Contractor f~rther warrants that, at the time Contractor submitted its bid, an authorized and responsible person executed and delivered to the State a non-collusive 5. NON-DISCRIMINATION REQUIREMENTS. In accordance with Article 15 of the Executive Law (also J bidding certification on Contractor's behalf. 8. INTERNATIONAL BOYCOTT PROHIBITION. In accordance with Section 220-fofthe Labor Law and Section 139-h of the State Finance Law, if this contract exceeds $5,000, the Contractor agrees, as a material condition of the contract, that neither the Contractor nor any substantially owned or affiliated person, tn'm, partnership or corporation has participated, is participating, or shall participate in an international boycott in violation of the federal Export Administration Act of 1979 (50 USC App. Sections 2401 et seq.) or regulations thereunder. If such Contractor, or any of the aforesaid affiliates of Contractor, is convicted or is otherwise found to have violated said laws or regulations upon the £mal determination of the United States Commerce Department or any other appropriate agency of the United States subsequent to the contractors execution, such contract, amendment or modification thereto shall be rendered forfeit and void. The Contractor shall so notify the State Comptroller within five (5) business days of such conviction, determination or disposition of appeal (2NYCRR 105.4). 9. SET-OFF RIGHTS. The State shall have all of its common law, equitable and statutory rights of set-off. These rights shall include, but not be limited to, the State's option to withhold for the purposes of set-off any moneys due to the Contractor under this contract up to any amotmts due and owing to the State with regard to this contract, any other contract with any State department or agency, including any con~ract for a term commencing prior to the term of this contract, plus any amounts due and owing to the State for any other reason including, without limitation, tax delinquencies, fee delinquencies or monetary penalties relative thereto. The State shall exercise its set-off rights in accordance with normal State practices including, in cases of set-off pursuant to an audit, the finalization of such audit by the State agency, its representatives, or the State Comptroller. 10. RECORDS. The Contractor shall establish and maintain complete and accurate books, records, documents, accounts and other evidence directly pertinent to performance under this contract (hereinafter, collectively, "the Records"). T1~e Records must be kept for the balance of the calendar year in which they were made and for six (6) additional years thereafter. The State Comptroller, the Attorney General and any other person or entity authorized to conduct an examination, as well as the agency or agencies involved in this contract, shall have access to the Records during normal business hours at an office of the Contractor within the State of New York or, if no such office is available, at a mutually agreeable and reasonable venue within the State, for the term specified above for the purposes of inspection, auditing and copying. The State shall take reasonable steps to protect from public disclosure any of the Records which are exempt from disclosure under Section 87 of the Public Officers Law (the "Statute") provided that: (i) the Contractor shall timely inform an appropriate State official, in writing, that said records should not be disclosed; and (ii) said records shall be sufficiently identified; and (iii) designation of said records as exempt under the Statute is reasonable. Nothing contained herein shall diminish, or in any way adversely affect, the State's right to discovery in any pending or furore litigation. 11. IDENTIFYING INFORMATION AND PRIVACY NOTIFICATION. (a) FEDERAL EMPLOYER IDENTIFICATION NUMBER and/or FEDERAL SOCIAL SECURITY NUMBER. Allinvoices orNew York State standard vouchers submitted for payment for the sale of goods or services or the lease of real or personal property to a New York State agency must include the payee's identification number, i.e., the seller's or lessor's identification number..The number is either the payee's Federal employer identification number or Federal social security number, or both such numbers when the payee has both such numbers. Failure to include this number or numbers may delay payment. Where the payee does nothave suchnumber or numbers, the payee, on its invoice or New York State standard voucher, must give the reason or reasons why the payee does not have such number or numbers. (B) PRIVACY NOTIFICATION. (1) The authority to request the above personal information from a seller of goods or services or a lessor of real or personal property, and the authority to maintain such information, is found in Section 5 of the State Tax Law. Disclosure of this information by the seller or lessor to the State is mandatory. The principal purpose for which the information is collected is to enable the State to identify individuals, businesses and others who have been delinquent in flying tax returns or may have understated their tax liabilities and to generally identify persons affected by the taxes administered by the Commissioner of Taxation and Finance. The information will be used for tax administration pmq?ose and for any other pm~pose authorized by law. (2) The personal information is requested by the purchasing unit of the agency contracting to purchase the goods or services or lease "the real or personal property covered by this contract or lease. The information is maintained in New York State's Central Accounting System by the Director of Accounting Operations, Office of the State Comptroller, AESOB, Albany, New York 12236. 12. EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITIES AND WOMEN. In accordance with Section 3 i2 of the Executive law, if this contract is: (i) a written agreement or purchase order instrument, provicFmg for a total expenditure in excess of $25,000.00, whereby a contracting agency is committed to expend or does expend funds in return for labor, services, supphes, equipment, materials or any combination of the foregoing, to be performed for, or rendered or fimtished to the contracting agency; or (ii) a written agreement in excess of $100,000.00 whereby a contracting agency is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon; or (iii) a written agreement in excess of $100,000.00 whereby the owner of a State assisted housing project is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon for such project, then: (a) The Contractor will not discriminate against employees or applicants for employment because of race, creed, color, national origin, sex, age, disability or marital status, and will undertake or continue existing programs of alTmnative action to ensure that minority group members and women are afforded equal employment opportunities without discrimination. Affirmative action shall mean recruitment, employment, job assignment, promotion, upgradings, demotion, transfer, layoff, or termination and rates of pay or other forms of compensation; (b) at the request of the contracting agency, the Contractor shall request each employment agency, labor union, or authorized representative of workers with which it has a collective bargaining or other agreement or understanding, to furnish a written statement that such employment agency, lab or union or representative will not discriminate on the basis of race, creed, color, national origin, sex, age, disability or marital status and that such union or representative will affnmatively cooperate in the implementation of the contractor's obligations here/n; and (c) the Contractor shall state, in all solicitations or advertisements for employees, that, in the performance of the State contract, all qualified applicants will be afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability or marital status. Contractor will include the provisions of "a, "b", and "c" above, in every subcontract over $25,000.00 for the construction, demolition, replacement, major repak, renovation, planning or design of real property and improvements thereon (the Work) except where the Work is for the beneficial use of the Contractor. Section 312 does not apply to: (i) work, goods or services unrelated to this contract; or (ii) employment outside New York State; or (iii) banking services, insurance policies or the sale of securities. The State shall consider compliance by a contractor or subcontractor with the requkements of any federal law concerning equal employment opportunity which effectuates the purpose of this section. The contracting agency shall determine whether the imposition of the requirements of the provisions hereof duplicate or conflict with any such federal law and if such duplication or conflict exists, the contracting agency shall waive the applicability of Section 3t2 te the extent of such duplication or conflict. Contractor will comply with all duly promulgated and lawful rules and regulations of the Division of Minority and Women's Business Development pertaining hereto. 13. CONFLICTING TERMS. In the event of a conflict between the terms of the contract (including any and all attachments thereto and amendments thereof) and the terms of this Appendix A, the terms of this Appendix A shall control. 14. GOVERNING LAW. This contract shall be governed by the laws of the State of New York except where the Federal supremacy clause requires otherwise. 15. LATE PAYMENT. Timeliness of payment and any interest to be paid to Contractor for late payment shall be governed by Article XI-A of the State Finance Law to the extent required by law. 16. NO ARBITRATION. Disputes involving this contract, including the breach or alleged breach thereof, may not be submitted to binding arbitration (except where statutorily authorized), but must, instead, be heard in a court of competent jurisdiction of the State of New York. 17. SERVICE OF PROCESS. In addition to the methods of service allowed by the State Civil Practice Law & Rules ("CPLR"), Contractor hereby consents to service of process upon it by registered or certified mail, return receipt requested. Service hereunder shall be complete upon Contractor's actual receipt of process or upon the State's receipt of the return thereof by the United States Postal Service as refused or undeliverable. Contractor must promptly notify the State, in writing, of each and every change of address to which service of process can be made. Service by the State to the last known address shall be sufficient. Contractor will have thirty (30) calendar days after service hereunder is complete in ~vhich to respond. 18. PROHIBITION ON PURCHASE OF TROPICAL HARDWOODS. The Contractor certifies and warrants that alt wood products to be used under this contract award will be in accordance with, but not limited to, the specifications and provisions of State Finance Law § 165. (Use of Tropical Hardwoods) which prohibits purchase and use of tropical hardwoods, unless specifically exempted, by the State or any governmental agency or political subdivision or public benefit corporation. Qualification for an exemption under this law will be the responsibility of the contractor to establish to meet with the approval of the State. In addition, when any portion of this contract involving the use of w0ods, whether supply or installation, is to be performed by any subcontractor, the prime Contractor will indicate and certify in the submitted bid proposal that the subcontractor has been informed and is in compliance with specifications and provisions regarding use of tropical hardwoods as detailed in § 165 State Finance Law. Any such use must meet with the approval of the State, otherwise, the bid may not be considered responsive. Under bidder certifications, proof of qualification for exemption will be the respons~bility of the Contractor to meet with the approval of the State. 19. MACBRIDE FAIR EMPLOYMENT PRINCI]?LES. In accordance with the MacBride Fair Employment Principles (Chapter 807 of the Laws of 1992), the Contractor hereby stipulates that the Contractor either (a) has no business operations in No,them Ireland, or (b) shall take lawful steps in good faith to conduct any business operations in Northern Ireland in accordance with the MacBride Fair Employment Principles (as described in Section 165 of the New York State Finance Law), and shall permit independent monitoring of compliance with such principles. 20. OMNIBUS PROCUREMENT ACT OF 1992. It is the policy of New York State to maximize opportunities for the participation of New York State business enterprises, including minority and women- owned business enterprises as bidders, subcontractors and Supphers on its procurement contracts. Information on the availability of New York State subcontractors and supphers is available from: Department of Economic Development Division for Small Business 30 South Pearl Street Albany, New' York 12245 Tel. 518-292-5220 A directory of certified minority and women-owned business enterprises is available from: Department of Economic Development Minority and Women's Business Development Division 30 South Pearl Street Albany, New York 12245 http://www.empire.state.ny.us The Omnibus Procurement Act of 1992 requires that by signing this bid proposal or contract, as applicable, Contractors certify that whenever the total bid amount is greater than $1 million: (a) The Contractor has made reasonable efforts to encourage the participation of New York State Business Enterprises as suppliers and subcontractors, including certified minority and women-owned business enterprises, on this project, and has retained the documentation of these efforts to be provided upon request to the State; (b) The Contractor has complied with the Federal Equal Opportunity Aet of 1972 (P.L. 92-261), .as amended; (c) The Contractor agrees to make reasonable efforts to provide notification to New York State residents of employment opportunities on this project through listing any such positions with the Job Service Division of the New York State Department of Labor, or providing such notification in such manner as is consistent with existing collective bargaining contracts or agreements. The Contractor agrees to document these efforts and to provide said documentation to the State upon request; and (d) The Contractor acknowledges notice that the State may seek to obtain offset credits from foreign countries as a result of this contract and agrees to cooperate with the State in these efforts. 21. RECIPROCITY AND SANCTIONS PROVISIONS. Bidders are hereby notified that if their principal place of business is located in a country, nation, province, state or political subdivision that penalizes New York State vendors, and if the goods or services they offer will be substantially produced or performed outside New York State, the Omnibus Procurement Act 1994 and 2000 amendments (Chapter 684 and Chapter 383, respectively) require that they be denied contracts which they would other~vise obtain. Contact the Department of Economic Development, Division for Small Business, 30 South Pearl Street; Albany New York 12245, for a current list of states subject to this provision. Revised November 2000 APPENDIX B Standard Clauses for All New York State Department of Environmental Conservation Contracts The parties to the attached contract, license, lease, grant, amendment or other agreement of any kind (hereinafter "the contract" or "this contract") agree to be bound by the following clauses which are hereby made a part of the contract. The word "Contractor" herein refers to any party to the contract, other than the New York State Department of Environmental Conservation (hereinafter "Department"). that the Contractor has disclosed all such relevant information to the Department. (1) An organizational conflict of interest exists when the nature of the work to be performed under this contract may, without some restriction on future activities, impair or appear to impair the Contractor's objectivity in performing the work for the Deparanent. I. Postponement, suspension, abandonment or termination by the Department: The Department shall have the right to postpone, suspend, abandon or terminate this:contract, and such actions shall in no event be deemed a breach of contract. In the event of any termination, postponement, delay, suspension or abandonment, the Contractor shall immediately stop work, take steps to incur no additional obligations, and to limit further expenditures. Within 15 days of receipt of notice, the contractor shall deliver to the Depamnent all data, reports, plans, or other documentation related to the performance of this contract, including but not limited to source codes and specifications, guarantees, warranties, as-built plans and shop drawings. In any of these events, the Department shall make settlement With the Contractor upon an equitable basis as determined by the Department which shall fix the value of the work which was performed by the Contractor prior to the postponement, suspension, abandonment or terminatior~ of this contract. This clause shall not apply to this contract if the contract contains other provisions applicable to postponement, suspension or termination of the contract. II. Indemnification and Hold harmless The Contractor agrees that it will indemnify and save harmless the Department and the State of New York from and against all losses from claims, demands, payments, suits, actions, recoveries and judgments of every nature and description brought or recovered against it by reason of any omission or tortious act of the Contractor, its agents, employees, suppliers or subcontractors in the performance of this contract. The Department and the State of New York may retain such monies from the amount due Contractor as may be necessary to satisfy any claim for damages, costs and the like, which is asserted against the Department ancVor the State of New York. (2) The Contractor agrees that if an actual, or potential organizational conflict of interest is discovered at any t/me after award, whether before or during performance, the Contractor will immediately make a full disclosure in writing to the Department. This disclosure shall include a description of actions which the Contractor has taken or proposes to take, after consultation with the Department, to avoid, mitigate, or minimize the actual or potential conflict. (3) To the extent that the work under this contract requires access to personal, proprietary or confidential business or fmancial data of persons or other companies, and as long as such data remains proprietary or confidential, the Contractor shall protect such data from unauthorized use and disclosure and agrees not to use it to compete with such companies. (b) Personal Conflict of Interest: The following provisions with regard to management or professional level employee personnel performing under this contract shall apply until the earlier of the termination date of the affected employee(s) or the duration of the contract. (t) A personal conflict of interest is defmed as a relationship of an employee, subcontractor employee, or consultant with an entity that may impair or appear to impair the objectivity of the employee, subcontractor employee, or consultant in perfonning d~e conn'act work. The Contractor agrees to notify the Department /mmediately of any actual, or potential personal conflict of interest with regard to any such person working on or having access to information regarding this contract, as soon as Contractor becomes aware of such conflict. The Department will notify the Contractor of the appropriate action to be taken. III. Conflict of Interest (a) Or~auizational Conflict of Interest. To the best of the Contractor's knowledge and belief, the Contractor warrants that there are no relevant facts or circumstances which could give rise to an organizational conflict of interest, as herein deemed, or (2) The Contractor agrees to advise all management or professional level employees involved in the work of this contract, that they must report any personal conflicts of interest to the Contractor. The Contractor must then advise the Department which will advise the Contractor App. B 4f17/00 Page 1 of the appropriate action to be taken. (3) Unless waived by the Department, the Contractor shall certify annually that, to the best of the Contractor's knowledge and behef, all actual, apparent or potential conflicts of interest, both personal and organizational, as defmed herein, have been reported to the Department. Such certification must be signed by a senior executive of the Contractor and submitted in accordance with instructions provided by the Department. Along with the annual certification, the Contractor shall also submit an update of any changes in any conflict of interest plan submitted with its proposal for this contract. The initial certification shall cover the one-year period from the date of contract award, and all subsequent certifications shall cover successive annual periods thereafter. The certification is to be submitted no later than 45 days after the close of the previous certification period covered. (4) In performing this contract, the Contractor recognizes that its employees may have access to data, either provided by the Department or first generated during contract performance, of a sensitive nature which should not be released without Department approval. If rids situation occurs, the Contractor agrees to obtain confidentiality agreements from all affected employees worldng on requirements under this contract including subcontractors and consultants. Such agreements shall contain provisions which stipulate that each employee agrees not to disclose, either in whole or in part, to any entity external to the Department, Department of Health or the New York State Department of Law, any information or data provided by the Department or first generated by the Contractor under this contract, any site- specific cost information, or any enforcement strategy without first obtaining the written permission of the Department. If a Contractor, through an employee or otherwise, is subpoenaed to testify or produce documents, which could result in such disclosure, the Contractor must provide m~rnediate advance notification to the Department so that the Department can authorize such disclosure or have the opportunity to take action to prevent such disclosure. Such agreements shall be effective for the hfe of the contract and for a period of five (5) years after completion of the contract. (c) Remedies - The Department may terminate this contract in whole or in pall, if it deems such termination necessary to avoid an organizational or personal conflict of interest, or an unauthorized disclosure of information. If the Contractor fails to make required disclosures or misrepresents relevant information to the Department, fire Department may terminate the contract, or pursue such other remedies as may be permitted by the terms of Clause I of this Appendix or other applicable provisions of this contract regarding termination. (d) The Contractor will be ineligible to make a proposal or bid on a contract for which the Contractor has developed the statement of work or the solicitation package (e) The Contractor agrees to insert in each subcontract or consnltant agreement placed hereunder (except for subcontracts or consultant agreements for well drilling, fence erecting, plumbing, utility hookups, security guard services, or electrical services) provisions which shall conform substantially to the language of this clause, including this paragraph (e), unless otherwise authorized by the Department. If this is a contract for work related to action at an inactive hazardous waste site, the following paragraph shall apply to those Contractors whose work requires the application of professional judgment: It does not apply to construction contracts. (f) Due to the scope and nature of this contract, the Contractor shall observe the following restrictions on future hazardous waste site contracting for the duration of the contract. (1) The Contractor, during the life of the work assignment and for a period of three (3) years after the completion of the work assignment, agrees not to enter into a contract with or to represent any party with respect to any work relating to remedial activities or work pertaining to a site where the Contractor previously performed work for the Department under this contract without the prior written approval of the Department. (2) The Contractor agrees in advance that if any bids/proposals are submitted for any work for a third party that would require written approval of the Department prior to entering into a contract because of the restrictions of this clause, then the bids/proposals are submitted at the Contractor's own risk, and no claim shall be made against the Department to recover bid~proposal costs as a direct cost whether the request for authorization to enter into the contract is denied or approved. IV. Requests for Payment All requests for payment by the Contractor must be submitted on forms supphed and approved by the Department. Each payment request must contain such items of information and supporting documentation as are required by the Department, and shall be ali-inclusive for the period of time covered by the payment request. V. Compliance with Federal requirements To the extent that federal funds are provided to the Contractor or used in paying the Contractor under this contract, the Contractor agrees that App. B 4/17/00 Page 2 it will comply with all applicable federal laws and regulations, including but not limited to those laws and regulations under which the Federal funds were authorized. The Contractor further agrees to insert in any subcontract hereunder, provisions which shall conform substantially to the language of this clause. VI. Independent Contractor The Contractor shall have the status of an independent contractor. Accordingly, the Contractor agrees that it will conduct itself in a manner consistent with such status, and that it will neither hold itself out as, nor cla/m to be, an officer or employee of the Department by mason of this contract. It further agrees that it will not make any claim, demand or application to the Department for any right or privilege applicable to an officer or employee of the Department, including but not limited to worker's compensation coverage, unemployment insurance benefits, social security coverage, or retirement membership or credit. VII. Article 15-A Requirements The terms contained in this clause shall have the definitions as given in, and shall be construed according to the intent of Article 15-A of the Executive Law, 5 NYCRR Part 140, et. seq., Article 52 of the Environmental Conservation Law and 6 NYCRR Part 615, et. seq., as applicable, and any goals established by this clause are subject to the intent of such laws and regulations. (a) If the maximum contract price herein equals or exceeds $25,000, and this contract is for labor, services, supplies, equipment, or materials; or (b) If the maximum contract price herein equals or exceeds $100,000 and this contract is for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon; then (c) The affirmative action provisions and equal employment opportunity provisions contained in this paragraph and paragraphs (d) and (e) of this clause shall be applicable within the limitations established by Executive Law- §§312 and 313 and the applicable regulations. (1) The Contractor is required to make good faith efforts to subcontract at least 18.8% of the dollar value of this contract to Minority Owned Business Enterprises (MBEs) and at least 20.5% of such value to Women Owned Business Enterprises (WBEs). (2) The Contractor is requ/red to make good faith efforts to employ or contractually require any Subcontractor with whom it contracts to make good faith efforts to employ minority group members for at least 10% of, and women for at least 10% of, the workforce hours required to perform the work under this contract. (3) The Contractor is required to make good faith efforts to sohcit the meaningful participation by enterprises identified hi the NYS Directory of Certified Businesses provided by: Empire State Development Corp. Div. Minority & Women's Business Development 30 South Pearl Street Albany, New York 12245 Phone: (518) 292-5250 Fax: (518) 292-5803 and Empire State Development Corp. 633 Third Avenue New York, NY 10017 Phone: (212) 803-2414 Fax: (212) 803-3223 interact: www.empire.state.ny.us\esd.htm (d) The Contractor agrees to include the provisions set forth in paragraphs (a), (b) and (c) above and paragraphs (a), (b), and (c) of clause 12 of Appendix A in every subcontract in such a manner that the provisions will be binding upon each Subcontractor as to work under such subcontract. For the purpose of this paragraph, a "subcontract" shall mean an agreement providing for a total expenditure in excess of $25,000 for the construction, demolition, replacement, major repair, renovation, planning or design of real property and improvements thereon in which a portion of the Contractor's obligation under a State contract is undertaken or assumed. · (e) The Contractor is required to make good faith efforts to utilize the MBE/WBEs identified in the utilization plan to the extent indicated in such plan, and otherwise to implement it according to its terms. The Contractor is requested to report on such implementation periodically as provided by the contract, or annually, whichever is more frequent. VIII. Compliance with applicable laws (a) Prior to the commencement of any work under this contract, the Contractor is requ/red to meet all legal requkements necessary in the performance of the contract. This includes but is not limited to compliance w/th all applicable federal, state and local laws and regulations promulgated thereunder. It is the Contractor's responsibility to obtain any necessary permits, or other authorizations. By signing this contract, the Contractor affmmatively represents that it has comphed with said laws, unless it advises the Department otherwise, in writing. The Department App. B 4/17/00 Page 3 signs this contract in reliance upon this representation. (b) During the term of this contract, and any extensions thereof, the Contractor must remain in compliance with said laws. A failure to notify the Department of noncompliance of which the Contractor was or should have been aware, may be considered a material breach of this contract. IX. Dispute Resolution The parties agree to the following steps, or as many as are necessary to resolve disputes between the Department and the Contractor. (a) The Contractor specifically agrees to submit, in the first instance, any dispute relating to this contract to the designated individual, who shall render a written decision and furnish a copy thereof to the Contractor. (1) The Contractor must request such decision in writing no more than fifteen days after it knew or should have known of the facts which are the basis of the dispute. (2) The decision of the designated individual shall be the fmal agency determination, unless the Contractor files a written appeal of that decision with the designated appeal individual ("DAI") within twenty days of receipt of that decision. (b) Upon receipt of the written appeal, the DAI, will review the record and decision. Following divisional procedures in effect at that time, the DAI will take one of the following actions, with written notice to the Contractor. (1) Remand the matter to the program staff for further negotiation or information if it is determined that the matter is not ripe for review; or (2) Determine that there is no need for further action, and that the determination of the designated individual is confirmed; or (3) Make a determination on the record as it exists. (c) The decision of the DAI shall be the final agency decision unless the Contractor files a written appeal of that decision with the Chair of the Contract Review Committee ("CRC") within twenty days of receipt of that decision. The designated individual to hear disputes is: Roman Rakoczy, EE II Coastal Erosion Section Bureau of Flood Protection NYS Department of Environmental Conservation 625 Broadway, 4~h Floor Albany, New York 12233-3507 Telephone: (518) 402-8139 The designated appeal individual to review decisions is: William W. Daley, Director Bureau of Flood Protection NYS Department of Environmental Conservation 625 Broadway, 4th Floor Albany, New York 12233-3507 Telephone: (518) 402-8140 The Chair of the Contract Review Committee is[ Richard IC Randles, Chair Contract Review Committee NYS Department of Environmental Conservation 625 Broadway, 10~ Floor Albany, NY 12233-5010 Telephone: (518) 402-9237 (d) Upon receipt of the written appeal, the Chair of the CRC, in consultation with the members of the CRC and the Office of General Counsel, will take one of the following actions, or a combination thereof, with written notice to the Contractor. (1) Remand the matter to program staff for additional fact f'mding, negotiation, or other appropriate action; or (2) Adopt the decision of the DAI; or (3) Consider the matter for review by the CRC in accordance with its procedures. (e) Following a decision to proceed pursuant to (d) 3, above, the Chair of the CRC shall convene a proceeding in accordance with the CRC's established contract dispute resolution guidelines. The proceeding will provide the Contractor with an opportunity to be heard. (f) Following a decision pursuant to (d) 2 or (d) 3, the CRC shall make a written recommendation to the Assistant Comnfissioner for Administration who shall render the final agency determination. (g) At any time during the dispute resolution process, and upon mutual agreement of the parties, the Office of Hearings and Mediation Services (OHMS) may be requested to provide mediation services or other appropriate means to assist in resolving the dispute. Any findings or recommendations made by the OHMS will not be binding on either party. App. B 4/17/00 Page 4 (h) Final agency determinations shall be subject to review only pursuant to Article 78 of the Civil Practice Law and Rules. (i) Pending final deiermination of a dispute hereunder, the Contractor shall proceed diligently with the performance of the Contract in accordance with the decision of the designated individual. Nothing in this Contract shall be construed as making £mal the decision of any administrative officer upon a question of law. (j) (1)' Notwithstanding the foregoing, at the option of the Contractor, the following shall be subject to review by the CRC: Disputes arising under Article 15-A of the Executive Law (Minority and Women Owned Business participation), the Department's determination with respect to the adequacy of the Contractor's Utilization Plan, or the Contractor's showing of good faith efforts to comply therewith. A request for a review before the CRC should be made, in writing, within twenty days of receipt of the Department's determination. (2) The CRC will promptly convene a review in accordance with Article 15-A of the Executive Law and the regulations promulgated thereUnder. X. Labor Law Provisions (a) When applicable, the Contractor shall post, in a location designated by the Department, a copy of the New York State Department of Labor schedules of prevailing wages and supplements for this project, a copy of all re-determinations of such schedules for the project, the Workers' Compensation Law Section 51 notice, all other notices required by law to be posted at the site, the Department of Labor notice that this project is a public work project on which each worker is entitled to receive the prevailing wages and supplements for their occupation, and all other notices which the Department d/rects the Contractor to post. The Contractor shall provide a surface for such notices which is satisfactoW to the Department. The Contractor shall maintain such notices in a legible manner and shall replace any notice or schedule which is damaged, defaced, illegible 6r removed for any reason. Contractor shall post such notices before commencing any work on the site and shall maintain such notices until all work on the site is complete. (b) When appropriate, contractor shall distribute to each worker for this Contract a notice, in a form provided by the Department, that this project is a public work project on which each worker is entitled to receive the prevailing wage and supplements for the occupation at which he or she is working. Worker includes employees of Contractor and all Subcontractors and all employees of suppliers entering the site. Such notice shall be distributed to each worker before they start performing any work of this contract. At the time of distribution, Contractor shall have each worker sign a statement, in a form provided by the Department, certifying that the worker has received the notice required by this section, which signed statement shall be maintained with the payroll records required by the following paragraph (c). (c) Contractor shall maintain on the site the original certified payrolls or certified transcripts thereof which Contractor and all of its Subcontractors are required to maintain pursuant to the New York Labor Law Section 220. Contractor shall maintain with the payrolls or transcripts thereof, the statements signed by each woi:ker pursuant to paragraph (b). (d) Within thirty days of issuance of the first payroll, and every thirty days thereafter, the Contractor and every subcontractor must submit a transcript of the original payroll to the Department, which transcript must be subscribed and affmned as tree under penalty of perjury. XI. Offset In accordance with State Law, the Depamnent has the authority to administratively offset any monies due it from the Contractor, from payments due to the Contractor Under this contract. The Deparlment may also (a) assess interest or late payment charges, and collection fees, if applicable; (b) charge a fee for any dishonored check; (c) refuse to renew certain licenses and permits. XII. Tax Exemption Pursuant to Tax Law Section 1116, the State is exempt from sales and use taxes. A standard state voucher is sufficient evidence thereof. For federal excise taxes, New York's registration Number 14740026K covers tax-free transactions under the Internal Revenue Code. XIII. Litigation Support In the event that tbe Department becomes involved in litigation related to the subject matter of this contract, the Contractor agrees to provide background support and other litigation support, including but not limited to depositions, appearances, and testimony. Compensation will be negotiated and based on rates established in the contract, or as may otherwise be provided in the contract. XIV. Equipment Any equipment purchased with funds provided under this contract, shall remain the property of the Department, unless otherwise provided in the contract. The Contractor shall be liable for all costs for maintaining the property in good, usable condition. It shall be returned to the App. B 4/17/00 Page 5 Department upon completion of the contract, in such condition, unless the Department elects to sell the equipment to the Contractor, upon mutually agreeable terms. XV. Inventions or Discoveries Any invention or discovery first made in performance of this Contract shall be the property of the Department, unless otherwise provided in the contract. The Contractor agrees to provide the Department with any smd all materials related to this property. At the Department's option, the Contractor may be granted a non-exclusive license. XVI. Patent and Copyright Protection If any patented or copyrighted material is involved in or results from the performance of this Contract, this Article shall apply. (a) The Contractor shall, at its expense, defend any suit instituted against the Department and indenmify the Department against any award of damages and costs made against the Department by a final judgment of a court of last resort based on the claim that any of the products, services or consumable supplies furnished by the Contractor under this Contract infringes any patent, copyright or other proprietary right; provided the Department gives the Contractor: (I) prompt written notice of any action, claim or threat of infringement suit, or other suit, and (2) the opportunity to take over, settle or defend such action at the Contractor's sole expense, and (3) all available information, assistance and authority necessary to the action, at the Contractor's sole expense. The Contractor shall control the defense of any such suit, including appeals, and all negotiations to effect settlement, but ?hall keep the Depamnent fully informed concerning the progress of the litigation. (b) If the use of any item(s) or parts thereof is held to infringe a patent or copyright and its use is enjoined, or Contractor believes it will be enjoined, the Contractor shall have the right, at its election and expense to take action in the following order of precedence: (I) procure for the Department the right to continue using the same item or parts thereof; (2) modify the same so that it becomes non-infringing and of at least the same quality and performance; (3) replace the item(s) or parts thereof with noninfringing items of at least the same quality and performance; (4) if none of the above remedies are available, discontinue its use and eliminate any future charges or royalties pertaining thereto. The Contractor will buy back the infringing product(s) at the State's book value, or in the event ora lease, the.parties shall terminate the lease. If discontinuation or elimination results in the Contractor not being able to perform the Contract, the Contract shall be terminated. (c) In the event that an action at law or in equity is commenced against the Department arising out of a claim that the Department's use of any item or material pursuant to or resulting from this Contract infringes any patent, copyright or proprietary fight, and such action is forwarded by the Department to the Contractor for defense and indemnification pursuant to this Article, the Department shall copy all plead'rags and documents forwarded to the Contractor together with the forwarding correspondence and a copy of this Contract to the Office of the Attorney General of the State of New York. If upon receipt of such request for defense, or at any time thereafter, the Contractor is of the opinion that the allegations in such action, in whole or in part, are not covered by the indenmification set forth in this Article, the Contractor shall immediately notify the Department and the Office of the Attorney General of the State of New York in writing and shall specify to what extent the Contractor believes it is and is not obligated to defend and indemnify trader the terms and conditions of this Contract. The Contractor shall in such event protect the interests of the Department and State of New York and secure a continuance to permit the State of New York to appear and defend its interests in cooperation with Contractor as is appropriate, including any jurisdictional defenses which the Department and State shall have. (d) The Contractor shall, however, have no liability to the Department under this Article if any infringement is based upon or arises out of: (1) compliance with designs, plans, or specifications fm~ished by or on behalf of the Department as to the i[ems; (2) alterations of the items by the Department; (3) failme of the Department to use updated items provided by the Contractor for avoiding infringement; (4) use of items in combination with apparatus or devices not delivered by the Contractor; (5) use of items in a mariner for which the same were neither designed nor contemplated; or (6) a patent or copyright in which the Department or any affiliate or subsidiary of the Department has any direct or indirect interest by license or otherwise. (e) The foregoing states the Contractor's entire liability for, or resulting from, patent or copyright infringement App. B 4/17/00 Page or claim thereof. XVII. Force Majeure The term Force Majeure shall include acts of God. work stoppages due to labor disputes or strikes, fires, explosions, epidemics, riots, war rebellion, sabotage or the like. If a failure of or delay in performance by either party results fi-om the occurrence of a Force Majeure event, the delay shall be excused and the time for performance extended by a period equivalent to the time lost because of the Force majeure event, if and to the extent that: (a) The delay or failure was beyond the control of the party affected and not due to its fault or negligence; and (b) The delay or failure was not extended because of the affected party's failure to use all reasonable diligence m overcome the obstacle or to resume performance immediately after such obstacle was overcome; and (c) The affected party provides notice within (5) days of the onset of the event, that it is invoking the protection of this provision. XVIII. Freedom of Information Requests The Contractor agrees to provide the Department with any records which must be released in order to comply with a request pursuant to the Freedom of Information Law. The Department will provide the contractor with an opportunity to identify material which may be protected fi-om release and to support its position. XIX. l~recedence In the event of a conflict between the terms of this Appendix B and the terms of the Contract (includ'mg any and all attachments thereto and amendments thereof, but not including Appendix A), the terms of this Appendix B shall control. In the event of a conflict between the terms of this Appendix B, and the terms of Appendix A, the terms of Appendix A shall control. App. B 4/17/00 Page 7 FEASIBLITY COST SHARING AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE STATE OF NEW YORK FOR THE MITIGATION OF SHORELINE EROSION DAMAGE AT MATTITUCK INLET, NEW YORK THIS AGREEMENT is entered into this day, of__., 2002, by and between the Department of the Army (hereinafter the "Government"), represented by the District Engineer executing this Agreement, and New York State (hereinafter the "State"), as represented by the New York State Department of Environmental Conservation. WITNESSETH, that WHEREAS, the Congress has authorized the New York District to conduct studies of the mitigation of shoreline erosion damage caused by the Federal navigation project at Matittuck inlet pursuant to the authority provided by Section 111, River and Habor Act of 1968, as ammended WHEREAS, the U.S. Army Corps of Engineers has conducted a reconnaissance study of the shoreline erosion east of the Matittuck Inlet, Matittuck New York, pursuant to this authority, and has determined that further study in the nature of a "Feasibility Phase Study" (hereinafter the "Study") is required to fulfill the intent of the study authority and to assess the extent of the Federal interest in participating in a solution to the identified problem; and WHEREAS, Section 105 of the Water Resources Development Act of 1986 (Public Law 99-662, as amended) specifies the cost sharing requirements applicable to the Study; WHEREAS, the State has the authority and capability to furnish the cooperation hereinafter set forth and is willing to participate in study cost sharing and financing in accordance with the terms of this Agreement; and WHEREAS, the State and the Government understand that entering into this Agreement in no way obligates either party to implement a project and that whether the Government supports a project authorization and budgets it for implementation depends upon, among other things, the outcome of the Study and whether the proposed solution is consistent with the Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies and with the budget priorities of the Administration; NOW THEREFORE, the parties agree as follows: ARTICLE I - DEFINITIONS For the purposes of this Agreement: A. The term "Study Costs" shall mean all disbursements by the Government pursuant to this Agreement, from Federal appropriations or from funds made available to the Government by the State, and all negotiated costs of work performed by the State pursuant to this Agreement. Study Costs shall include, but not be limited to: labor charges; direct costs; overhead expenses; supervision and administration costs; the costs of participation in Study Management and Coordination in accordance with Article IV of this Agreement; the costs of contracts with third parties, including termination or suspension charges; and any termination or suspension costs (ordinarily defined as those costs necessary to terminate ongoing contracts or obligations and to properly safeguard the work already accomplished) associated with this Agreement. B. The term "estimated Study Costs" shall mean the estimated cost of performing the Study as of the effective date of this Agreement, as specified in Article III.A. of this Agreement. C. The term "excess Study Costs" shall mean Study Costs that exceed the estimated Study Costs and that do not result from mutual agreement of the parties, a change in Federal la~v that increases the cost of the Study, or a change in the scope of the Study requested by the State. D The term "study period" shall mean the time period for conducting the Study commencing with the release to the U.S. Army Corps of Engineers New York District of initial Federal feasibility funds following the execution of this Agreement and ending when the Assistant Secretary for the Army (Civil Works) submits the feasibility report to the Office of Management and Budget (OMB) for review for consistency with the policies and programs of the President.. E. The term "PMP" shall mean the Project Management Plan, which is attached to this Agreement and which shall not be considered binding on either party and is subject to change by the Government, in consultation with the State. F. The term "negotiated costs" shall mean the costs of in-kind services to be provided by the State in accordance with the PMP. G. The term "fiscal year" shall mean one fiscal year of the Government. The Government fiscal year begins on October 1 and ends on September 30. ARTICLE II - OBLIGATIONS OF PARTIES A. The Government, using funds and in-kind services provided by the State and funds appropriated by the Congress of the United States, shall expeditiously prosecute and complete the Study, in accordance with the provisions of this Agreement and Federal laws, regulations, and policies. B. In accordance with this Article and Article III.A., nI.B. and III.C. of this Agreement, the State shall contribute cash and in-kind services equal to fifty (50) percent of Study Costs other than excess Study Costs. The State may, consistent with applicable law and regulations, contribute up to 50 percent of Study Costs through the provision of in-kind services. The in-kind services to be provided by the State, the estimated negotiated costs for those services, and the estimated schedule under which those services are to be provided are specified in the PSP. Negotiated costs shall be subject to an audit by the Government to determine reasonableness, allocability, and allowability: C. The. State shall pay a fifty (50) percent share of excess Study Costs in accordance with Article III.D. of this Agreement. D. The State understands that the schedule of work may require the State to provide cash or in- kind services at a rate that may result in the State temporarily diverging from the obligations concerning cash and in-kind services specified in paragraph B. of this Article. Such temporary divergences shall be identified in the quarterly reports provided for in Article III.A. of this Agreement and' shall not alter the obligations concerning costs and services specified in paragraph B. of this Article or the obligations concerning payment specified in Article III of this Agreement. E. If, upon the award of any contract or the performance of any in-house work for the Study by the Government or the State, cumulative financial obligations of the Government and the State would result in excess Study Costs, the Government and the State agree to defer award of that and all subsequent contracts, and performance of that and all subsequent in-house work, for the Study until the Government and the State agree to proceed. Should the Government and the State require time to arrive at a decision, the Agreement will be suspended in accordance with Article X., for a period of not to exceed six months. In the event the Government and the State have not reached an agreement to proceed by the end of their 6 month period, the Agreement may be subject to termination in accordance with Article X. F. No Federal funds may be used to meet the State's share of Study Costs unless the Federal granting agency verifies in writing that the expenditure of such funds is expressly authorized by statute. G. The award and management of any contract with a third party in furtherance of this Agreement which obligates Federal appropriations shall be exclusively within the control o£the Government. The award and management of any contract by the State with a third party in furtherance of this Agreement which obligates funds of the State and does not obligate Federal appropriations shall be exclusively within the control of the State, but shall be subject to applicable Federal laws and regulations. ARTICLE III - METHOD OF PAYMENT A. The Government shall maintain current records of contributions provided by the parties, current projections of Study Costs, current projections of each party's share of Study Costs, and current projections of the mount of Study Costs that will result in excess Study Costs. At least quarterly, the Government shall provide the State a report setting forth this information. As of the effective date of this Agreement, estimated Study Costs are $460,000 and the State's share of estimated Study Costs is $230,000. In order {o meet the State's cash payment requirements for its share of estimated Study Costs, the State must provide a cash contribution currently estimated to be $230,000. The dollar mounts set forth in this Article are based upon the Government's best estimates, which reflect the scope of the study described in the PSP, projected costs, price- level changes, and anticipated inflation. Such cost estimates are subject to adjustment by the Government and are not to be construed as the total financial responsibilities of the Government and the State. B. The State shall provide its cash contribution required under Article II.B. of this Agreement in accordance with the following provisions: 1. No later than 30 calendar days prior to the scheduled date for the Government's issuance of the solicitation for the first contract for the Study or for the Government's anticipated first significant in-house expenditure for the Study, the Government shall notify the State in writing of the funds the Government determines to be required from the State to meet its share of Study Costs. No later than 15 calendar days thereafter, the State shall provide the Government the full amount of'the required funds by delivering a check payable to "FAO, USAED, NYD" to the District Engineer. 2. The Government shall draw from the funds provided by the State such sums as the Government deems necessary to cover the State's share of contractual and in:house financial obligations attributable to the Study as they are incurred. 3. In the event the Government determines that the State must provide additional funds to meet its share of Study Costs, the Government shall so notify the State in writing. No later than 60 calendar days after receipt of such notice, the State shall provide the Government with a check for the full amount of the additional required funds. C. Within ninety (90) days after the conclusion of the Study Period or termination of this A~eement, the Government shall conduct a final accounting of Study Costs, including disbursements by the Government of Federal funds, cash contributions by the State, the amotmt of any excess Study Costs, and credits for the negotiated costs of the State, and shall furnish the State with the results of this accounting. Within thirty (30) days thereafter, the Government, subject to the availability of funds, shall reimburse the State for the excess, if any, of cash contributions and credits given over its required share of Study Costs, other than excess Study Costs, or the State shall provide the Government any cash contributions required for the State to meet its required share of Study Costs other than excess Study Costs. D. The State shall provide its cash contribution for excess Study Costs as required under Article H.C. of this Agreement by delivering a check payable to "FAO, USAED, NYD" to the District Engineer as follows: 1. After the project that is the subject of this Study has been authorized for Construction, no later than the date on which a Project Cooperation Agreement is entered into for the project; or 2. In the event the project that is the subject of this Study is not authorized for constracfion by a date that is no later than 5 years of the date of the fmal report of the Chief of Engineers concerning the project, or by a date that is no later than 2 years after the date of the termination of the study, the Sponsor shall pay its share of excess costs on that date (5 years after the date of the final report of the Chief of Engineers or 2 years after the date of the termination of the study). ARTICLE IV - STUDY MANAGEMENT AND COORDINATION A. To provide for consistent and effective communication, the State and the Government shall appoint named senior representatives to an Executive Committee. Thereafter, the Executive Committee shall meet regularly until the end of the Study Period. B. Until the end of the Study Period, the Executive Committee shall'generally oversee the Study consistently with the PMP. C. The Executive Committee may make recommendations that it deems warranted to the District Engineer on matters that it oversees, including suggestions to avoid potential sources of dispute. The Government in good faith shall consider such recommendations. The Government has the discretion to accept, reject, or modify the Executive Committee's recommendations. D. The Executive Committee shall appoint representatives to serve on a Study Management Team. The Study Management Team shall keep the Executive Committee informed of the progress of the Study and of significant pending issues and actions, and shall prepare periodic reports on the progress of all work items identified in the PSP. E. The costs of participation on the Executive Committee (including the cost to serve on the Study Management Team) shall be included in total study costs and cost shared in accordance with the provisions of this Agreement. ARTICLE V - DISPUTES As a condition precedent to a party bringing any suit for breach of this Agreement, that party must first notify the other party in writing of the nature of the purported breach and seek in good faith to resolve the dispute through negotiation. If the parties cannot resolve the dispute through negotiation, they may agree to a mutually acceptable method of non-binding alternative dispute resolution with a qualified third party acceptable to both parties. The parties shall each pay 50 percent of any costs for the services provided by such a third party as such costs are incurred. Such costs shall not be included in Study Costs. The existence of a dispute shall not excuse the parties from performance pursuant to this Agreement. ARTICLE VI - MAINTENANCE OF RECORDS A. Within 60 days of the effective date of this Agreement, the Government and the State shall develop procedures for keeping books, records, documents, and other evidence pertaining to costs and expenses incurred pursuant to this Agreement to the extent and in such detail as will properly reflect total Study Costs. These procedures shall incorporate, and apply as appropriate, the standards for financial management systems set forth in the Uniform Administrative Requirements for Grants and Cooperative Agreements to state and local governments at 32 C.F.R. Section 33.20. The Government and the State shall maintain such books, records, documents, and other evidence in accordance with these procedures for a minimum of three years after completion of the Study and resolution of all relevant claims arising therefrom. To the extent permitted under applicable Federal laws and regulations, the Government and the State shall each allow the other to inspect such books, documents, records, and other evidence. B. In accordance with 31 U.S.C. Section 7503, the Government may conduct audits in addition to any audit that the State is required to conduct under the Single Audit Act of 1984, 31 U.S.C. Sections 7501-7507. Any such Government audits shall be conducted in accordance'with Government Auditing Standards and the cost principles in OMB Circular No. A-87 and other applicable cost principles and regulations. The costs of Government audits shall be included in total Study Costs and shared in accordance with the provisions of this Agreement. ARTICLE VII - RELATIONSHIY OF PARTIES The Government and the State act in independent capacities in the performance of their respective rights and obligations under this Agreement, and neither is to be considered the officer, agent, or employee of the other. ARTICLE VIII - OFFICIALS NOT TO BENEFIT No member of or delegate to the Congress, nor any resident commissioner, shall be admitted to any share or part of this Agreement, or to any benefit that may arise therefrom. ARTICLE IX - FEDERAL AND STATE LAWS In the exercise of the State's rights and obligations trader this Agreement, the State agrees to comply with all applicable Federal and State laws and regulations, including Section 601 of Title VI of the Civil Rights Act of 1964 (Public Law 88-352) and Department of Defense Directive 5500.11 issued pursuant thereto and published in 32 C.F.R. Part 195, as well as Army Regulations 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army". ARTICLE X - TERMINATION OR SUSPENSION A. This Agreement shall terminate at the conclusion of the Study Period, and neither'the Government nor the State shall have any further obligations hereunder, except as provided in Article III.C.; provided, that prior to such time and upon thirty (30) days written notice, either party may terminate or suspend this Agreement. In addition, the Government shall terminate this Agreement immediately upon any failure of the parties to agree to extend the study under Article II.E. of this agreement, or upon the failure of the State to fulfill its obligation under Article III. of this Agreement. In the event that either party elects to terminate this Agreement, both parties shall conclude their activities relating to the Study and proceed to a final accounting in accordance with Article III.C. and III.D. of this Agreement. Upon termination of this Agreement, all data and information generated, as part of the Study shall be made available to both parties. B. Any termination of this Agreement shall not relieve the parties of liability for any obligations previously incurred, including the costs of closing out or transferring any existing contracts. ARTICLE XI- OBLIGATIONS OF FUTURE APPROPRIATIONS A. Nothing herein shall constitute an obligation of future appropriations by the Legislature of the State of New York. B. The State intends to satisfy its obligations under this Agreement. The State shall include in its budget request or otherwise propose, for each fiscal period, appropriations sufficient to cover the State's obligations under this Agreement for each year], and will use all reasonable and lawful means to secure the appropriations for that year sufficient to make the payments necessary to fulfill its obligations hereunder. The State reasonably believes that funds in amounts sufficient to discharge these obligations can and will lawfully be appropriated and made available for this purpose. In the event the budget or other means of appropriations does not provide funds in sufficient amounts to discharge these obligations, the State shall use its best efforts to satisfy any requirements for payments under this Agreement from any other source of funds legally available for this purpose. Further, if the State is unable to satisfy its obligations hereunder, the Government may exercise any legal rights it has to protect the Government's interests related to this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall become effective upon the date it is signed by the District Engineer for the U.S. Army Corps Of Engineers, New York District. DEPARTMENT OF THE ARMY New York State BY John. B. O'Dowd Colonel, U.S. Army District Engineer DATED: BY NAME: TITLE: DATED: ATTORNEY GENERAL'S SIGNATURE BY DATED: CERTIFICATE OF AUTHORITY I, , do hereby certify that t am the principal legal officer of the New York State Department of Environmental Conservation, that the Department of Environmental Conservation is a legally constituted public body with full authority and legal capability to perform the terms of the Agreement between the Department of the Army and the State of New York, acting by and through the Department of Environmental Conservation, in connection with the Mattituck Inlet Feasibility Study, and to pay damages in accordance with the terms of this Agreement, if necessary, in the event of the failure to perform, as required by Section 221 of Public Law 91-611 (42 U.S.C. Section 1962d-5b), and that the persons who have executed this Agreement on behalf of the State of New York have acted within theft statutory authority. IN WITNESS WHEREOF, I have made and executed this certification this day of 2002. General Counsel New York State Department of Environmental Conservation CONTINUING AUTHORITIES PROGRAM PROJECT MANAGEMENT PLAN Mattituck Harbor, New York Section 111 - Mitigation of Shoreline Damages Caused by Federal Navigation Project February2002 CONTINUING AUTHORITIES pROGRAM PROJECT MANAGEMENT PLAN Mattituck Harbor, New York Mitigation of Shoreline Damages Caused by Federal Navigation Project II. III. IV. VI. VII PROJECT DESCRIPTION A. Authority B. Congressional District C. Project Location D. Problem Description E. Recommended Plan F. Stares of Local Cooperation 'G:' Peninet~t Data- SCOPE OF WORK A. Overall B. Current Fiscal Year SIGNIFICANT ISSUES PROJECT SCHEDULE A. Overall B. Current Fiscal Year PROJECT FUNDING A. Overall B. Current Fiscal Year PROJECT TEAM PROJECT TEAM ENDORSEMENTS ATTACHMENTS: A - DETAILED PROJECT SCHEDULE B - WORK ALLOCATION C - QUALITY CONTROL PLAN D - ACQUISITION PLAN CONTINUING AuTHORITIEs PROGRAM PROJECT MANAGEMENT PLAN Mattituck Harbor, New York I. PROJECT DESCRIPTION A. Authority: Section 111, River & Harbor Act of 1968 as amended B. Congressional District: NY- 1TM C. Pr0iect Location: The project is located on the shores adjacent to Mattituck Inlet on the north shore of Long Island .D. Problem Description: New.~ork State D~partment of Environmental Conservation (NYSDEC) has requested a study of the eroded downdrift (eastern) shorefront in the vicinity of Bailcys Beach to deteimine whether any changes in the project are warranted to prevent continuing adverse effects to the adjacent shoreline, and to mitigate, to the greatest extent POssible, cumulative downdrift shoreline damages occasioned by the federal navigation works. E. Recommended Plan: The recommended plan will be determined during the feasibility phase. F. Status of Local Cooperation: New York State Department of Environmental Conservation has indicated that they would support a feasibility study to determine the extent of Federal interest. Pertinent Data: Study Costs Feasibility study Costs $460,000 (The below data 'to be determined in the Feasibility Phase) BENEFIT-COST RATIO TOTAL PROJECT COST (000s) $ TOTAL ANNUAL COSTS (000s) $ TOTAL ANNUAL BENEFITS (000s) $ NET ANNUAL BENEFITS (000s) $ PROJECT LIFE (years) INTEREST RATE PRICE LEVEL II. scOPE OF WORK A. The feasibility study will detemiine Federal interest in modifying the existing Federal navigation project at Matittuck Inlet to reduce erosion down drift or east of the inlet. The boundary of the study area is one mile east and west of Matittuck Inlet. The goals of the study will be as follows; 6. 7. 8. Determine how much of the erosion is caused by the jetties at Mattituck Inlet Determine the sand surplus and/or deficit on each side of the Mattituck Inlet. Also determine the accretion/erosion rates on either side of the inlet. Determine the stability of the shoreline just down drift (east) of Mattituck Inlet. Define_the withoutproject condi_tion ............... Evaluate different sand by-passing options Determine the environmental effects of the selected plan Characterize the benethic communities to the east of Mattituck Inlet Determine the environmental effects of the selected plan B. Current Fiscal Year. 1. Complete the analysis of sand movement around the inlet. 2. Identify and evaluate alternatives to mitigate erosion east of the inlet. 3. Start preparing the Environmental Assessment and preliminary real estate analysis III. STUDY GOALS This document will outline the study schedule and costs to mitigate the effects of the Federal navigation project at Mattituck Inlet. The acretion/erosion rates that prevail in the vicini~ of Mattituck Inlet are expected to define the possible quantities of littoral material that could be bypassed to reduce beach erosion east of the jetties° It i's the rate at which the quantity of littoral sand that accumulates on the western side of the jetties that will determine the sand by-passing rate. Suitable material dredged from the navigation project will also be considered for placement on the eastern side of the jetties as a component of possible by-passing options. An initial placement of an additional quantity of sand will be considered for placement on the eastern side of the jetties to reshape the shoreline to a limited extent. This could supplement any by-passing option selected to make it as effective as possible in protecting the inlet from the threat of a breach or overwash on the eastern eroded shore. Other alternatives will be considered,.but are not expected to be implementable due to relative costs, limited effectiveness and potentially greater adverse environmental impacts. Some of the alternatives that will be considered are alterations to the jetties, channel configuration, and the mining of offshore sources for sand. The changes resulting from such alternatives cOuld introduce a period of system-wide instability with difficult to forecast risks and uncertainties concerning impacts to the channel and adjacent shores. These alternatives would have limited effectiveness and require extensive environmental studies and for the jetties, extensive hydrodynamic and hydrologic modeling. Although a wide range of possible alternatives will be considered to protect the inlet's eastern shore, the study will focus on alternatives that are most effective and avoid significant system-wide changes to aVoid and minimize potential adverse environmental impacts. IV. SIGNIFICANT ISSUES No Significant Issues. III. PROJECT SCHEDULE (a) Overall Schedule NO~ DATES Scheduled I Forecast I Actual Notes C-I Initiate Study (DPR) Sep 00 Mar 00 C-2 Reconnaissance Report ( Fact Sheet) Feb 02 2-3 Feasibility Study initiated May 02 2-4 Draft Feasibility Report ,. May 03 2-5 Final DPR Aug 03 Z-6 Receipt of P&S Funds Dec 03 U-7 P&S Completed July 04 C-8 Project Approval July 04 C-9 2onstmction Funding Commitment July 04 C- 10 ?CA Execution July 04 C-I 1 Initial Work Allowance (CMR) Jul 04 C-12 Notice of Physical Completion Jul 05 C-13 Final_ Completion Report - Aug 05 (1~) Carrent Fiscal Year ~~ DATES NO. ~Milestones Scheduled ,, ] Forecast I Actual Notes ~2 ~econnaissance Report Feb 02 Feb 02 C_3 Feasibility Study initiated. May 02 Diffusion Analysis Aug 02 IV. PROJECT FUNDING TOTAL FUNDS REQUIRED (Federal Funds Only)(000's) DPR P&S CONST Project Cost 280.0 Allocated to Date 100.0 · Required to Complete 180.0 FUNDS AVAILABLE CURRENT FISCAL YEAR {000's) FY 01 Carry-Over FY 02 Budgeted TOTAL FED NON-FED TOTAL I8.0 0.0 FUNDING HISTORY (Federal Funds Only) (000s) prior FY 0:~ FY02 DPR 100.0 . P&S Constr TOTAL 100.0 PROJECT TEAM Project Manager Karl Ahlen Karl Ahlen Robert Smith Chris Ricciardi Johnny Chan Planning Division Plan Formulation Environmental Resources Cultural Resources Socio-Economics HTRW Engineering Division H&H Geotech Cost Operations Division Real Estate Division Odile Accilien Stan Michelowski Stan Nuremburg Thomas Harnedy Construction Division Office of Council Ellen Simon Local Sponsor NYSDEC Bill Daley PL-F PL-F PLoEN PL-F EN EN OP RE CO Independent Teclmieal Reviewer Paul Sabalis PL-F Noiman Blumenstein PL-F ' Marly Goff VI. PROJECT TEAM ENDORSEMENTS PROJECT TEAM CONCURREDBY Pla~/?l~g Divj.sion Team Members Planning Division Date Engineering Division Team Members Engineering Division Date Construction Division Date R~I Estat)~ivision fearn Members ;~ ./ . Real Estate Division Date Office of. CounselTeamlVlern~rs ~ Office of Counsel Date VII. PROJECT TEAM ENDORSEMENTS (Con't) Project Manager Date Date ATTACHMENT A - DETAILED PROJECT SCHEDULE 0 ATTACHMENT B - wORK ALLOCATION Engineering Tasks _Prepare Survey SOW, Survey SOW, including beach profiles of the project area consisting of 12 long range profile lines, each extending 2,000 fi. offshore and 10 short range lines (from the baseline to MLW) taken between the long ranges, has been prepared for beach profile survey. Review of Survey Data. CRB will perform review of alt survey products. Shoreline Comparison Analysis. Based on new survey data and using previous available shoreline information, a shoreline comparison analysis will be performed to determine the extent of erosion and accretion on the east and west side of the inlet. Shoreline comparison will also consist of plotting historical shoreline information on plan view. The volume eroded and accumulated on the east and west side, respectively, will also be determined. Shoreline Erosion Analysis. Shoreline erosion rates will be computed for 2, 5, 10, 20 and 25 year storm recurrence intervals. The EDUNE model will be used and shoreline profile characteristics, determined from the new survey data, will be used as input to the EDUNE model. Long term and storm induced erosion rates will be determined for existing and for without project future conditions. The results of this analysis will be used to estimate when in the future the beach, just east of the inlet, will be in a near breached condition. Diffusion Analysis. Using the volumes computed from the above task (CRB3) and assuming that the eroded volume will be replaced, a diffusion analysis will be performed to determine the impact of the inlet to the shoreline further east of the inlet. This analysis will provide an understanding of the movement of sand east of the inlet. A determination of whether the replaced quantity of sand will migrate east and how far the migration will extend will be made. This analysis will be done for with project conditions only. Slope Stability Analysis. Slope stability analyses will be done on the bluff east 6f the downdrifi beach approximately 3,000 fi from the inlet. Using the results from the diffusion analysis, the impact of the fronting beach to the bluff stability will be determined. Possible bluff failure will be determined for existing and without project conditions and for with project and future conditions. Engineering Appendix. Prepare input to final report for submission to NAD Assessment of Alternatives. A screening of possible types of sand bypassing solutions will be developed for the project area. The descriptions of possible alternatives will be listed, with estimated preliminary construction costs. Selected Plan. Based on the engineering analyses and findings (determined from previous tasks CRB3 through CRB7 and environmental assessment of alternatives), a final improvement plan will be recommended. The selected plan will be defined with design features and appropriate plates and cost estimate, i.e. quantities and layout input. Final costs and MCACES are to be accomplished by Cost Engineering Branch in a separate task. Environmental Tasks The environmental tasks will ensure the proposed project meets all appropriate environmental regulations. Appropriate NEPA documents and pre-application permit requested documentation will be prepared that will include, but not be limited to the following; Coordinate with United States Fish and Wildlife (USFWS) on the Coordination Act Report Prepare the CZM compliance documents Coordinate with appropriate Federal and NY State agencies. Prepare the Cultural. Resource-. Report. - Evaluate sand by-passing alternatives Perform any sampling regime required by regulatory agencies.( As coordinated with the non-Federal Sponsor, there will only be one sampling period for the feasibility study) Plan Formulation Tasks The planning tasks will be as follows; (1) Formulation of Alternatives (2) Evaluation of Altematives (3) Determination of the percent of beach erosion problem caused by the Federal navigation project. (3) Drafting the draft report (4) Coordinating the response to comments to the draft report (5) Finalizing the report. (6) Benefit Analysis ATTACHMENT C - QUALITY CONTROL PLAN US .Army ,Co~ps of Eng!nee~, New York DistriCt QUALITY CONTROL PLAN Mattituck Harbor, New York Section 111 - Mitigation of Shoreline Damages Caused by Federal Navigation Project November 2001 Suffolk County NEW YORK QUALITY CONTROL PLAN TABLE OF CONTENTS I. INTRODUCTION ..................... : ........................................................... - ........ 1 II. PURPOSE OF THE FEASIBILITY PHASE .................. : ............................... 1 III. STUDY AUTHORITY .......................................................................... : ......... 1 IV. DESCRIPTION OF STUDY AREA...~:..::.. ........ V. QUALITY CONTROL PROCESS ............................................. A. Product Review ....................................................... .: ................................ 2 B. Independent Review .................................................................................. 2 VI. REVIEW SCHEDULE ........... ~ ....................................................................... 2 VII CERTIFICATION OF REVIEW ................................................ ~ ....................... 3 L INTRODUCTION The New York District Planning Division has adopted this Quality Control Plan (QCP) for the MattituCk Harbor, New York Section 111 - Mitigation of Shoreline Damages Caused by Federal Navigation Project. This QCP has been tailored to meet the needs of this study effort and is commensurate with the level of risk, cost, complexity and uniqueness &the effort being undertaken. This plan summarizes the Quality Control Review Process to be employed during the conduct of the review procedures have been developed in accordance with the New York District Standard Operating Procedures. II. PURPOSE OF THE FEASIBILITY PHASE The study and design phase consists ofall the planning and design activities required to demonstrate, that Federal participation in a project is warranted and completes all activities required to support a decision document (Detailed Project Report(DPR)) and a potential recommendation for construction IlL STUDY AUTHORITY Section 11 I, River & Harbor Act of 1968 as amended authorizes the study under. the Continuing Authorities Program (CAP). IV. DESCRIPTION OF STUDY AREA The study area extends three miles east and west of Mattituck Inlet. QUALITY CONTROL PROCESS Quality Control (QC) is the process used to ensure that each project/product is in compliance with Corps of Engineers technical and policy requirements and meets the customer's needs and requirements. This two-part process consists of product review and an b~dependent review. Together, the two reviews assure a degree of completenes& correctness and consistency. A. Product Review. Each division will conduct their own internal review through its respectige chain, of command, and is responsible for producing quality products/sub-products. Study team members, Technical Managers, Project Managers and Functional Chiefs still retain responsibility for the quality and timely execution of study tasks in accordance with milestones, costs and commitments. B. Independent Review. An independent review will be conducted (I) within the District, (2) by another district, (3) in centers of expertise, (4) by teams or individuals throughout USACE, or (5) by a contract team or consultant. The review provides additional quality control, not replacement of existing responsibility for accurate, high quality work products. All review team members will review the DPR for the Mattituck Harbor, New York Section Ill -Mitigation of Shoreline Damages Caused by Federal Navigation Project. The review of Draft and Final products, when available, will identify and resolve problems, if any, prior to report submission~ The Study Team will incorporate all appropriate changes. These records will be kept in the project files. Unusual. issues/conflicts that cannot be resolved may be addressed tO an appropriate resource in the North Atlantic Division for guidance. The Division/Office Chiefs signature will ensure that the product and reviews were satisfactorily accomplished in accordance with procedures established with each. _ Division/Office. The Division/Office Chiefs will submit certification of review at the conclusion of the study. An example of certification is pro)tided. (Appendix A) VI. REVIEW SCHEDULE As major interim products/decision points, as defined by project execution measures, are reached, the review team provides an intermediate review. The following schedule provides specific'interim points requiring review: Review of DPR Sep 02 VII. CERTIFICATION OF REVIEW Mattituck Harbor, New York Section 111 - Mitigation of Shoreline Damages Caused by Federal Navigation Project has been performed and all concerns, if any, have been addressed. Frank Santomauro, P.E. Chief, Planning Division Date Arthur Connolly, P.E. Chief, Engineering Division Date Robert Hyatt Chief, Real Estate Division Date Stuart Piken, P.E. Deputy District Engineer, Programs & Project Management Division Date ATTACHMENT D - ACQUISITION PLAN Any contract for A/E services will be acquired through existing Indefinite delivery Contracts or through existing government fund transfer systems.