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HomeMy WebLinkAboutNYS DEC Shoreline Erosion ELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS iViAR RLiGE OFFICER ~RECORDSMANAGEIvIENT OFFICER ;~REEDOM OF INFORMATION OFFICER Town Ha]], 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax · 631) 765-6145 Telephone (631) 765-1800 southotd~owmnorthfork.net OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD 11, 2003: RESOLVED that-the Town Board of the Town of Southold hereby authorizes and directs supervisor Hnrton 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@~own.southold.ny-us PATRICIA A. FINNEGAN ASSISTANT TOWN ATTORNEY pat. ficia, finnegan@ to wn.sou~hold.ny.ns JOSHUA Y. 1KORTON Supervisor Town Hall, 53095 Route 25 P.O. Box 1179 Sonthold, New York 11971-0959 Telephone (631) 765-1939 Facsirrdle (631 765-1523 OFFICE OF TIlE 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 Southotd 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 Feasibility Cost Sharing Agreement between the Department of the Army and the State of New York · Continuing Authorities 'Program Project Management Plan for Mattituck Harber, New York, dated February 2002 · Four (4) ~dditional signatory pages for contract #C004394 signed by Supervisor Horton (and notarized) March 12, 2003 Page 2 - C004394 Richard Tuers NYS Dept. of Environmental Conservation Division of Water Bureau of Flood Protection If you should have any question, please give me a calI. Esq. 'zC:~aufll-otd Town Attorney /md encs, CC: Joshua Y. Horton, Supervisor w/encs. Elizabeth A. Neville, Town Clerk w/encs. Southold Town Board w/o encs. Jamie Richter, Engineering Inspector w/o encs. Jim McMahon, Community Development w/o encs. 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 Agreemant is entered into by and between the Department of Environmental ConservationLofthe Stage o£New York (hereinafter referred to as the"State") and the Town of Southolck New York~ 53095 Main Road, Southold, New York 1 I97t (hereinafter referred to as the "Town"). The Town andthe 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 ora water resources project shall be cost shared in the same percentage as the purposes oftheproject; and WItEREAS, the To~vn has asked the State to represent its interests concerning preparation and deveIopment of the Mitigation of Shoreline Erosion Damage Study ag Mattituck In/el (hereinafter the "Studf'); and WHEREAS, the State has the authority pursuant to Section 1536 of Chapter 7 of Title } 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 "Govemment"~ or either of the non-federal parnes to implement a project, and that whether 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 Program; 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 I - 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 Agreemenk shall have the same meamng as established ha that separate agreement which is attached hereto and incorp0ratedherein~ and the Town agrees to the terms and conditions in that agreeme,nr applicable to non-federal concerns or responsibili~es to the extent safd terms and conditions are applicable to the Town's obligat/ons 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 from funds made available to the Gnvemment by th~ ~mn.fe~deral parfie~s~ and all costs of work peff6rm~ed~by .th~n0n-federat parties pursuant to .this Agreement. ~tud¥, costs shall include, but n°i 1se Iimi~tefl to: labor ~harges; direct costs¢ o~head expensea; supevTision and adrn/n:~ .iqtra~tiO~a costs; the costs of participatiog on the Study I~&anagement and Coprdi~n~ ~it!on Tram in aec0rdahc~ w/th Article IV of th/~ Agre:emen, t; the costs of contraet~ ¢~th t!fird parttes, mcludingtermmatton 0r suspensmn eharge~ auld any t hat n, orcost, (or&a {den _a th;S Zost mCes m ¢; t minate rr p;rly accom'pl~shed') associated with tiffs 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 t, 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. em-" The term "fiscal y shall mean one fiscal year of the Government. The Government fiscal year begins on October 1 and ends on September 30. 2 ARTICLE H - OBLIGATIONS OF PARTIES The non-federal parties are required to contribute a total of fifty (50) percent of all Study Costsin cash. ar credit for costs incurred as part of the Study as discussed in Airticle III of this Agreement. The negotiated costs incurred shall be subject to audit by the Government to determin~e reasonableness, allocability, and allowability. The estimated Study C6sts are $485,000 and the non~fede~ral portion o£the estimated Study Costs ($242~00) is ~r cost-shared between the State .aj!d the Town on a 70%/30% basis, respectively. The state port/on of estimated Study Co2ts is $169,750 and the Town portion is-$72.750. The ~*.ate/fedemt fe~sibi!~ity c~.~. shm'ed agreem'ent ~!lowsl fo~,$25,000 of in-kind SCl'~ icc.q IL) bc pi'OX idcd bx thc mm-112dcral paints. I h.2rcfbrc. IBc t:~Mal non- f~x~l~al ~b~.Olllll'a.llll)ll II111~ I),2 ~¢dtl¢C~t I,x ,111 iIlIIOII! I1OI o exceed b2.-..~lll0. Credits shalt be ~hc~! to Ih¢ pal ,.~ ?l'o*. Idll;~ Iht scl x lc',,'. 11!¢ Io'~\'ll .q .-hare nh!Il bc p,aid by the 81~at~m~e-I]]-st ip. SlallCC illld hUL~SCqUCnLI.~ rCllllblfrscd.lo thc SIzzLe b.~ ill¢ I own. No. federal fund~ may be used to meet either the town's orthe state:~s shamof. Study C0st~ under this~ Agreement unless the expenditure of such funds is expressly~authorized by statute as verified by the granting agency. Co 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 ofauy contract by the Town with a th/rd party for services in furtherance of this Agreement which obligates fimds of the Town and does not obligate state appropriations shall be exclusively within the control of the Town, but shall be subject to appliqable 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 cio 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 maximum flexibihty as directed by the Study Managemem and Coordination Team 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 m - METHOD OF PAYMENT The To~m agrees to re/mburse 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 providedby 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 appo'mt named senior representatives to the Executive Committee. Thereafter, the Executive Committee shall meet regularly until the end o£the Study period. Until the completion of the Study period, the Executive Committee shall generally oversee the Study consistency w/th tlm PMP. The Executive Comm/ttee may make recommendations to the District Engineer on ma, ers that it oversees, including suggestions to avoid potential sources of dispute. The Government in good faith shall consider such recommendations. The Government has the option to accept, reject, or modify the Executive Conunittee's recommendations. The costs of participation on the Executive Committee (including the cost to serve on the Study Management and Coordination Teana} 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 Cormnittee izfformed of the progress of the Study and of significant pending issues and actions, and shall prepare periodic reports on the progress ofal~ 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 properly reflect their respective expenditures. The State and the Town shall maintain such books, records, documents and other evidence for inspectio~-~ and audit by authorized representatives of the Government and the parties to this Agreement. Such material shall remain available for review for a period of six (6) years following termination of this Agreement. A_ ARTICLE VI - RELATIONSHIP OF PARTIES The parties to this Agreement act in an independent capacity in the performance of their respective functions under thins Agreement, and no party is to be considered the officer, agent, or.employee of the other. 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 ot~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 m any benefit that may arise therelkom. ARTICLE VIII - FEDERAL AND STATE LAWS In acting under their rights and obligations hereunder, all parties agree m comply with all applicable federal and state taws 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." gRTICLE 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 Government 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 and 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 appropnate share 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 heretmder shall be sent as follows: If to the State: New York State Departmenl of Environmental Conservation Division of Water Bureau of Flood'Protection 6gS~Broadway,3 4® Floor Albar~y, N~ew York 12233-3507 AI~: Riehard Tuers If to the Town: Town of Southold 53095 Main Road Southold, New York 11971 Att: Supervisor Joshua Horton ARTICLE XI i FEDERAL AGREEMENT, PMP, and STANDARD CLAUSES (APPENDIX A AND B) Attached is the Feasibility Cost Shared Agreemem between the Government and the State for the Mitigation of Shoreline Erosion Damage at Mattituck Inlet, New York, as identified in ArtiCle I.A. and incorporated herein. Attached is the PMP prepared by the Govermment for the Study for the Mitigation o£ Shoreline Erosion Damage at Mattituck Inlet, as identified in Article I.E. and mcorporated herein. Standard clauses for all New York State (Appendix A] and New York State Department of Environmental Conservation (Appendix B) contracts are attached. The Town shall comply ~vith all applicable provisions contained therein. 6 CONTRACT ~ER 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. I also certify, that original copies ofthis signature page w/il be attached to all other~xac{ copies oftlffs contact. By: Date: Name/Title Town of Southold Supervisor Dated: to me kno~c..~_ho being du~y sworo, di~ ~epose and say that he/she is the · 5h' tg~'tJ/.[ O~ (list rifle) of the [Otx)/l ~ ,~[D6~4~o[~L (listpohticalsubdi~isionofagencyorpolifical subdivision), the polit~al suhdivisior~ or agency thereof described in and which executed the within instrument; that he/she knows the seal of said political snbdivis~qn, thgt the~l, affixet~to sale instrument is such seal; that it was so affixed by order, resolution or authority of I.~)(J~q~) [ /~60F/~(gt~)O. (attach a certified copy of the order, resolution or the ordinance authorizing execution of tiffs contract) of said political subdivision, and that he/she s~gned his/her name by that authority. MELANIE OOROSKI NOTARY PUBLIC, State of New York No. 01D04634870 Qualified in S~ffo k County ~. ,~ Commission ~ires September 30,~ ATTORNEY GENERAL'S APPROVAL Date COMPTROLLER'S APPROVAL Date APPENDIX A STANDARD CLAUSES FOR ALL NEW YORK STATE CONTRACTS The pardes to the attached connac~ license, lease, amendment or other agreement of any kind (hereinafter, "the contract/' or "this contract"t agree to be bound by the following ~lansts winch are hereby made a part of th9 contract (the word "Con~acter" herein refers to any party other than thcS[ate, whether a contractor, licenser, Iicensee, lessor, lessee or any other party): 1. EXECUTORY CLAUSE. In accordance with Secffon 4t of file State Finance Law, the State shah have no liatritity under this contract to the Contractor or m anyone,else beyond flmdS appropriated and available for th/s contradL 2, NON-ASSIGNMENT CLAUSE. In accordance with Section 138 of the State Finance Law, this contracx may ~aot be assigned by the Contractor or its right, title or interest therein assigned, transferred conveyed, sublet or otherwise disposed of without the ptevrous conseur, in writing, of the State and any attempts ro assign the contract without the State's written consent ute unll andvoi& The Cuntractor may, howgver assign its right to receive payment without the States prior written consent unless tiffs contract concerns Ce'gificates of Participation pursuant to Article 5-A of the State Finance law. 3. COMPTROLLER'S APPROVAL In accordance with Section t12 of the State Finance Law (on if tins contract is with the State University or City University of New York. Section 355 or Section 6218 of the Eduoation Lawh if this contract exceeds $ t 0,000 (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 winch_ as so amended_ exceeds said statutory arnoum, or if. by this contract, the State agrees ro give ;nme[ting other than money when the value or reasonably estimated value of such consideration exceeds $15,000, ~t 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 1Lfe of this contract for the benefit of such employees as are required to be covered by the provisions oft he Workers' Compensation Law. known as the Human Rights Law) and all other State and Federal statutory and constitutional non- discrimination provisrons, the Contractor will not discriminate against any employee or applicant for employment because of rose, creed, color, sex, national origin, age, disability or marital status. Furthermore, in accordance with Section 220-e of the Labor Law, if tiffs is a conlract for the construction, alteration or repak of any public bdilding or public, work or for the manufacatte, sale or distribution of materials, equipmen¢ or supplies, and to the extant that this contract shall be performed within the State of New York, Contractor agrees that neither it nor its subcontractors shall, by reason of ra~e, creed, color, disability, sex, or national origin: (a) discriminate in hiring against achy New York State citizen wlio is qualified and available ro perform the work; or (b) discriminate against or intimidate any employee hired for the performance ofwork trader this contract. Ifthis is a building service comxact as de freed in Section 230 of the Labor Law, ttten, 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 disability: (a) discriminate in hiring against any New York State citizen who is qualified and available ro perform the work; or (b) discriminate against or intimidate any employee hired for the performance of work under this contract. Contractor is subject to frees 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 tins is a pubhc 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 mtmber of hours or days stated in said statures, except as otherwtse provided in the Labor law and as set forth/n prevailing wage and supplement schedules issued by the State Labor Department. Furtherxnore Contractor and its subcontractors must pay at least the prevailing wage rare and pay or provide the prevailing supplements, including the preminm rates for overtime pay, as determined by the State Labor Deparmaeur in accordance with the Labor Law. 7. NON-COLLUSIVE BIDDING REQUiREMENT. In accordance with Section 139-d of the State Finance Law, [f this contract was awarded based upon the submission of bids, Contractor warrants, under penalty of perjury, that its bid was arrived atindependently and without collusion a/meg at restricting competition. Contractor further warrants that, at theme Contractor submitted its bid, an authorized and responsible person executed and delivered to the State a non-collusive 5. NON-DISCRIMANATION REQUIREMENTS. In accordance with Article 15 of the Executive Law [also 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 Contracto~ nor any substanfial/y owned or affiliated person, firm, partnership or corporation has participated, is pa,~cipating~ or shall participate in art/rifernational boycott in violation of the' federal Export Adiv2nistration Act of 1979 (50 USC App. Sections 2401 er seq.) or regulations thereunder. If such Coittractor. or any of the aforesaid affiliates of Co~l~:~¢~0r, ¢ coWCic~ d o?/s other~se fmmd to have or e ons upon de%~ioa Of th~ U~it~d States Commerce D~I~ or any cater appropriate agency of the ~i~ $~btt:e~sub ~quVat't~ ~le con.actors execution, > l.~iLl"lk.l,., hl'el.(~ll.C, lJt,, J,l}),l.r;,.,,'OIl,l,.l~ b,' pe'~dJ~cd lh,".:h ;::l,I :o;d. I'he t'anih~C:o~ -5,.;l -o ,ia5 > ()I'd'ich c*)ll~ iCliOil. 0ClCl:l~'q:l: ,*,1 ,,r disposition of :,'peal (2\Y( 'RR 9: SET-OFF RIGHTS~ Itte State shall have all of its common,law, equitable and statutory fights of set-off. These, r~ghts shall inchic~e, but not be limited to, the Statei~s Option to wifftho/d for the purposes of set-off any, mo~eys due to the Contractor under th~s contract up to any amotmts due and owing to the State with regard~ to, this contract, arty other contract with any State dap ,a~nenr or*agency, inchiding any contract for a term enmmenci~tg p~oi to the term of this con,tact, plus amd mounts d~e and owing to the State for any other re. son inclu~ng, without lira/ration, tax detinqu~es, fee d¢ljnctu~encies or monetary penalties relative fftereto. The State shall exercise its set-off ~ in accordance with normal State practices inclff~!hag~, in cases of set-offpursuant to an audit, the ffnali~al~on of such andit by the State agency, its representatives, or the State Comptroller. 10. R~CORDS. /'he Contractor shall establish and maintain complete and accurate books, records documents, accounts and other evidence directly pertinent to performance under this conu:act (hereinafter. collectively, "the Records"), The 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 agencres involved in this contract, shall have access ro the Records dUring normal business hours ar an office of the Conucactor within the State of New York or, if no such office m available, at a mutually agreeable and reasonable venue within the State. for the term specifie&gbove for the purposes of/nspecfion, auditing and copying, The State shali take reasonable steps ro protect from public disclosure any of the Records w~'.mh are exempt from disclosure under Section 87 of the Public Officers Law (the "Statute") provided that: ti) the Contractor shall timely haform an appropriate State official, ha writing, that said records should not be disclosed; and (ti) said records shall be sufficiently identified; and (iii) desigmfion of said reCOrds as exempt ~mder the Statute is reasonable, Nothhag contained here/n shall diminish, or m any way adversely affect, the State's right to discovery in any pond/ag or future 1/figa~inn. 11. DENT1FYING iNFORMATION AND PRIVACY NOTIFICATION. (a) FEDERAL E2VIPLOYER IDENTIFICATION NUMBER md/or FEDERAL SOCIAL sEcUt~FY NLrMBER. Allinvoices or New York State stan~urd vouchers su~omitre~ for payment for the sale of goo~ or service~ or the lease of real ur personal property to ~.New York State agenCy ~ust inclttdo the payee's i~tipn number, ~e., the sdler's or less&t~ ide~fification ~er, ..Tlie:mlmber ts either the,paFee~s Federal employer Me.cation number or Fe~,al~,, ocTlat securitylmmBer~0giL ~c~h. suet numbers when ~ paTee has bofu.~u~h manbers. Failure to include this manber or number~ mq¥ de/ay payment. Where tho payee does n0t ha*e such)~a~rtber or numbers, ~e p~yee, on its invoice or,T~eW york State standardvo~,ller,, musr~give]fue reas0nor~easons wiry the payee does not have suck number~or numbers. (BI PR1VACYNOT1FICATION. (1) The authority to request the above personalinfomaatioa from a seller of goods or services or a lessor of real or perscmal property, and the authority re maintain such information, is found in Sectkm 5 of ethe 8rate Tax Law. Disclosure of rids information by the seller or lessor to the State is mandatory. The l~Sncipal purpose for which the information is coil. ected is to enable the State to identify individuals, businesses and 9the/'s who have been delinquent in f/Jhag tax returns or may have understated their tax liabllitlos audto'generally identify persons affected by the taxes adm/mstered by the Comrmssioner of Taxation and Finance. I'he information will be used for tax administration purpose aud for any other purpose author/zed by law'. (2) I'he personal information is requested by the purchasing unit of the agency contracting ro 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 312 of ~dae Executive law. if this contract is: (il a written agreement or purchase order instrument, prov/ch~g for a total expenditure/n excess of $25,000.00, whereby a contracting agency is committed to expend or does expend funds hlretum for labor, services, supplies, equipment materials or any combination oft, he forego'rog, to be performed for, or rendered or famished to the contracting agency; or (i/) a written agreement hi excess orS100,000.00 whereby a c9ntracling agency is .~c, ommitted t9 expend or does expenc[ frmds for t/rte acqu/siff'on, Consmlctien, dcm0 'htim~, replaae~m~ng major repair or renovation of real property and hnproyementi thereon; or (iii) a wriften :agreement hi excess'0f $10~000~00 whereby the owner of a State assisted housing project is committecl to expend or does expend funds for the acqn/sitio~, ¢onslzaetrun, demolitfom replacement, major ~ep. air or renoyafion of mai property and :i'! he? !~ to : i:p'o.;:l c~ b....came of race, creed, cot~r, nhlipml o~, setp age; disability or marital ~s,' an(} will ~d~ Or continue existing p',~ ~ f ~tive ~c4~. a ~ ensure that minority g~oup, ¢~mher~ ~ ~ .~:9~ are afforded equal enipBY~a_ent Opp~ Without discrimination. ~e aetio~ '~I~all mean recruitment, emp,lmj~e~t, $~b as~grcnen~, prmnotmn~ npgradmgs, deJ~c~ti61~,_ kansfar, layof~ Or termination and rates of pa~ or other £o~ms o£com~o~nsation; ban) at the requusr of the contracting agency, the tractor sindl reques~ each employment agency, labor union, or authorized representative of workers with which it has a collective b~rgaining or other agreement or understanding, to furrfish a written statement that such employment agency, labor union or representative wfllno~ discr/minate onthe basis of race. creed, color, national or,gin, sex, age, disability or marital status andthat anch nnion or representative will affirmatively cooperate hi the implementation of the conffactor's obligations herein; and (c) the Contractor shall state, in alt solicitatiens or advertisements for employees, that, in the performance of the State contract, all qualified applicants will be afforded equal employment opportunities wtthom ddscriminar/on because of race. creed, color~ national origin, sex~ age. disability or marital status Contractor w/Il include the provisions of "a, "b', and "c" above, in every subcontract over $25,000.00 for the construction, demolition, replacement, major repam renovation, plauning or design of real property and unprovements 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 th/s conrracg or (ii) employment outside New York State; or (iii) banking services, ~nsnrance pohcies or the sale of securities. The State shall consider conrplim~ce by a contractor or subcontractor with the requirements of any federal law concerning equal employment oppormmty 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 wa/ye the appl/cab'fliry of Section 312 m the extemof anch duplication or conflict. Contractor w/ll comply with all duly promulgated and lawful mles _a~_ .d_ regulations of the Di,)ision of Mhintity and Women s Business Development pertahting hereto. 13. CONFLICTING TERMS. In the event of a conflict between the terms of the conuact (including any and all attachments thereto and amendments thereof) and the terms of this Appendix A, the terms of th/s Appendix A shall control 14. GOVER1NING LAW. ~%ais contract shall be governed by the taws 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 shalI be governed by Article XI-Af of the State Finance Law to the extent required by law. 16. NO ARBITRATION. Disputes involving this contrac~ including the breach or alleged breach thereof, may not be submitted to binding arbitration (except where statutorily author/zed), but must, instead, be heard in a court of competent jorisdicfion 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 ma//. remm recmpt requested. Service hereunder shall be complete upon Contractor's actual receipt of process or upun 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 m the last known address shall be sufficient. Contractor will have thirty (30) calendar days after service hereunder is complete in which to respond. 18. PROHIBITION ON PURCHASE OF TROPICAL HARDWOODS. The Contractor certifies and warrants that all wood products to be used under this contract award will be in accordance with, but not limited to. the specifications and previsinns of State Finance Law § 165. (Use of Tropical Hardwoods) which prohibits puscbase 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 wSll 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 woods, whether supply or installation, is to be performed by any subcontractor, the prime Conl~actor will indicate and certify in the submitted bid pr~oposal that the s/thconrractor has been informed and ~/il compl/ance v~ith specifications and provisions regarding use oftropi0alhardwoods as detailed in § 165 StatbSeinance La~VL Any such use must meet with the approval of the State, otherwise, the bid may ntt be cons~idered respon?ive. Under b/dder certificatinns. proof of qual/fic~ti0n for exemption will be the responsi~ of the ~tor to meet with the of' elSme. 19. MACBRZDE PAIR EMPLOYMENT . Ig., accordance with the MacBride Fak loYmem Principles (Chapter 807 of the Laws of 1992), ~e C~fi~actor'hereby stipulates that the Com~act~ e/~er (m) has no business operations in Ig~rthem l~el~, o¥ !b) shall take lawful steps in good faith to conduct ~ny:'b~usiness operations in Northern Ireland in acforda~ce with the MacBride Fair Employrrmtt ~c/p~es (as~ described in Section 165 of ~e New York 8~la~e~F/mance Law), and shall permit independem aio~liforing of compliance with such principles. 20. OMNII!IUS/~ROCUREMENT ACT OF 1992. It is the policy of New York State to maximize opportunities for the participation nfNew York State business enterprises, includhig minority and women- owned business enterprises as bidders, subcontractors and suppliers on/ts procurement convcacts. Information on the availability of New York State subcontractors and supphers is available from: Department of Econom/c Development Divisien for Small Business 30 South Pearl Street Albany, New York 12245 Tel. 518-292-5220 A d/rectory 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://'~vw, empir e,stat e.nv.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 51 million: (a) The Contractor has made reasonable efforts m 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 documegtation ofthase efforts to be provide4upon request to the State; (b) The Contractor has complied with the Federal Equal Opportunity Act 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 ernploymant opportunities on this project through listing any suchpositions with the Job Se~ine Division of the New York State Department of Labor, or providing such notification in such manner as is consistent with exi ,Sting collective barg~g contracts or agreements. ~71ie Contractor agrees to docmnent these efforts andt~o ll,m~de sa~d aocumentaaun t0the State upon request; and (d) The Contractor acknowledges notice that the State may seek to obtain offset credits from foreign countries as aresutt of this contract and agrees to cooperate with the State in these *fforts. 21. RECIPROCITY AND SANCTIONS PROVISIONS. Bidders are hereby notified that if their principal place of business is located in a counlzy, nation, provhice, state or political subdivision that penalizes New York Stale vendors, and if the goods or services they offer will be substantially produced or performed outside New York State, the Omnibus Procurement Act t 994 and 2000 amendments (Chapter 684 and Chapter 383, respectively) require that they be denied contracts which they would otherwise obtahi. Contact the Deparlment of Ecunomm Development, Division for Small Business, 30 South Pearl Street: Albany New York 12245. for a current list of states subject to this provismn. Revised November 2000 APPENDIX B Standard Clauses for All New York State Department of EnvironmenTal Conservation Contracts The parties m the attached contract, hcense. lease, grant, amendment or other agreement of any kind (hereinafter "the contracff or "this contract") agree to be bound by the following clauses winch are hereby made a part of the contract. The word "Contractor" herein refers re any party m the contract, other than the New York State Department of Environmental Conservation (hereinafter "Department"). I. Postponement, suspension, abandonment or termination by the Department: The Department shall have the rigkt to postpone, suspend, abandon or terwJnate this~ c0nCact, and such 'actions shall in no event be cteemed a breach of cordract. In the evant of any ternxinat/on, postponement, delay, suspension or aband0nnlent, the Contractor shall immediately stop w0~k, tal~e ste~s to fucur no additional obligations, and to limit farthe~ expenditures. Within 15 days o£ receip~ of notice, the C~ractor shall deliver to the Depar/manI all da!a, report0, pl'~ .~,o or othgr documentation related to the pe.~. erin. truce o~qyq cot, ~act. "mluding bnt not limited the Depatmaen~ shall mak~ settlement with theContracmr upon an eqfii.,t al)le b~si~ as de~rm/nedby th~ Department which shall fix ~e value of the work winch was performed' by ~e G, ontractor prior to the postponement, suspensior~ abandomneni or terminaliun of tiffs contract. rhisclauso shat1 nar appt3r to tins contract if the contract contains other p~'ox/isinns applicable to postponement, suspension or ~emafior~ of the contract lI. Indemnification and Hold harmless The Contractor agrees thatit wfll indemnify and save harmless the Deparrm.ent and the State of New York from and against all losses from clakns, demands, payments, suits. actions rceover£es ~nd jud,_mnent~ of every nature and description bzotsghr or recovered against it by reason of any omi ssin~ Or tortious act of the Contracton its agents, ~mployees, suppliers or subcontractors in the performance of fliis contract. The Deparonem and the State of New York may retain such raonies from the amount due Conncacmr as may beneqessary to satisfy any claim for damages, costs and the like, which is asserted against the Deparononr and/or the State of New York. 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 m be performed under this contract may, without some resuictinn on future activities, anpmr or appear m impair the Contractor's objeotivity in perfoninngthe work for the Deparunenn (2) The Contractor agrees that if an actual, or potential orgaulzaflonal dottier of interest is discovered at any time after awarck whether bdfore or during performance, the Contractor will immediately make a full dis¢Iosure in writing to the Department. %his disclosure shall include a description of actions which the Contractor has taken or proposes to take, after consultation with theDepanmenr, to avoid, mitigate, or minimize the actual or potential confiicr. (3) To the extent that the work under this contract requires access to personal, proprietary or confidemflal business or financialdata 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 discloanre and agrees not m use it m compete with such companies. (b) Personal Conflict of Interest: The following prov~sions 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. (D A personal conflict of interest is defined as a relationship of an employee, subcontractor employee, or consultant with an entity that may impan- or appear re nnpaXr the objectivity of the employee, subcontractor employee~ or consultant in performing the contract work. The Contractor agrees m notify the Deparm~em Lmmediately of any actual, or potential personal conflicl of interest with regard to any such person working on o~ having access to reformation regarding this contract, as soon as Contractor becomes aware of such conflict. The Department will notify the Contractor of the appropriare action to be taken. IlL Conflict of Interest (a) Organizational Conflict of Interest. To thebest of the Contractor's knowledge and belief the Contractor warrants that there are no relevant facts or circmnstances which could give rise to an organizational cm2Iict of interest, as herein defined, or (2) The Contractor agrees to advise allmanagemen~ 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 winch will advise the Contractor App. B 4/17/©0 Page 1 of the appropriate action to be taken. (3) Un/ess waived by the Department, the Contractor shah certify annually that, to the best of the Conlractor's knowledge and belief, all actual, apparent or potential conflicts of interest, both personal and org~rfizatirmal, as defined h~rein,' have been [eported to the Departmcot Such ~er titlcation must be s~gned by a senior executive of the Cuntiactor and submitted in accordance with instructions provided by the Department. A10ng with the ann~ ce~;tificadun, the Contractor shall also sn/m~t an update of any changes in any conflict of er~svpla~nbmi~tedp~ithits proposal for th'm contract. ~'e~i(m sba/1 cover the one,year period fror~ the ~a~ of contract a?ard, and ail subsequent ~Ou~ sha~ cover successive annual periods ther~./t~, ~e certification is to be submitted no later than ~]ays~after tile close of the previous cortifmation (4) In performing this courract, the Contractor recogn/zes tha~ its employees may have access to data, either provided by the Depanmem or first generated during contrac* performance, of a sensitive nature which should not be released without Deparunenr approval If this. s/tuatign occurs, the Contractor agrees to obtain canffdenfi~flity agreements from all affected employees working on requtrements under th~s contract including subeunumcmra and consultants. Such agreements shall contaifi provisi6~s which stipulate that each employee agrees a~t to disclose, either in whole or in part, to any entity external ~o the Depuranent, Department of Health or the New York State Departmen~ of Law, any information or data provided by the Department or first generated by the Contractor under this contract, any site- specLFlc cost information, or any enforcement strategy with(mr first obtaiffmg the written pernussion of the Deparmaenr. If a Contractor. ~rough an employee or otherwise, is subpoenaed to testify or produce documents. which could result in such disclosure, the Contractor musl provide immediate advance notificat/on £o the Deparmaenr so that the Department can auther/ze such disclesure or Mve the opF jrmmry to take acnon ro prevent such disclosure, Such agreements shall be effective for the hfe of the contract and for a period of five (55 years after completion of the contract (c) Remedies - The Department may terminate this contract in whole or in pan. if it deems such termination necessary to avoid an organizafiunal or persoual conflicl of interest, or an unauthorized disclosure of ~nformation. If the Contractor fails to make required disclosures ot m~srepresenrs relevant information to the Department. the Deparmaenr may terminate the contract, or pursue such other remedies as may be permitted by the terms of Clause I of this Appendix or other appliqable provismns of this contract regarding termination. (d) The Contractor will be ineligible to make s propqsal or bid on a comracr for which the Contractor has developed the statement of work or the solicitation package (e) The Contractor agrees m insert in each subcontract or consultant 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 anthoHzed by,the Departh~ent. 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 notapplyto construction contracts. (f) Due to the scope and nature of this contract, the Contractor shall observe the followhag restrictions on future hazardous ~aste 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 pertafimig m a site where the Conlractor previously performed work for the Department under this contract without the print written approval of the Deparunent. (2) The Contractor agrees in advance that if any bids/proposals are submitted for any work for a third party that would requrre 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 cosrs as a direct cos~ whett~e~ the request for authorization to enter intc the contract is demed or approved W. Requests for Payment All requests for payment by the Contractor must be submitted on forms supplied and approved by the Department. Each payment requesr must contain such items of information and supporting documentation as are required by the Department, and shall be all-lnclusive 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 m paying the Contractor under tiffs 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 winch the Federal funds were author/zed. The Cuntractor further agrees to insert in any subcontract hereunder, provisions which shall conform substantially to the language of tiffs clause. VI. Independent Contractor The Contractor shall have the status of an independent contraeror. AccoI'dingly, 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 claim to be, an officer o~r e~mployeeofthe Depanmant b,y reason of this contract r f. ~..~ si, ~ ~ ~ ill., ~ ..,~anyclmm, demand .l"l!,?.:c;'.to;l , I. e I)ci',n;i;.Clh i( myr[ghtorprivilege ,Iplq,,:,lbl.' lO } o 'l!,'a.l' 01' Cl li,h~:.cc of the Deparu'nant. hl*t~i.ding bat ~aor lknited to worker's compansatiun ¢~x~l;aglg, ..ua([m~'lolBTment insurance benefits, social se~t~co~era~ 9r rel~a'ement membership or credit. VII. ArtieI~e 15-A Requirements The terms conta/~edia th:~ clause shall have the definitions as given in, anA ghall be- construed aceprdiag ro the intent of ArriVe 15-A o£the Executive Law. 5 NYCRR Part 140. et. seq., Article. 52 of the Env/ronmental Conservation Law and6N6 NYGRR Part 615, et. seq., as applicable, and any g~eals es[ablished by tiffs clause are subject to the intent ~ such l~aws and regulations. (a) I~ the maximum contracl 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) Re affmnative action provisions and equal employment opportunity provisions contained in this paragraph andparagraphs (d) and (e) of this clause shall be applicable within the Iimnafions established by Executive Law ~§312 and 313 and the applicable regulations (1) The Contractor is required to make good fa/th efforts to subcontract at least 18.8% of the dollar value of this contract to Minority Owued Business Enterprises (MBEs) and at least 20.5% of such value to Women Owned Business Enterpr/ses (WBEst. (2~ The Contractor is required to make good faith efforts m employ or contractually require any Sabcentractor with whom xt contracts to make good faith efforts to employ minority group members for at least 10% of, and women fox ar least 10% of. fire workforce hours required to perform the work under this co~tract. (3) The Contractor is required to make good faith efforts to solicit the meaningful participation by enterprises identified in the NYS Directory of Certified Busiaesses provided by: Empire State Development Corp. Div. Minority & Women's Business Developmem 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) 803-24t4 Fax: (212) 803-3223 interact: www.empir~.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 (cl of clause 12 of Appendix A ia 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 "subcontracf' shall mean an agreement providing for a total expenditure in excess of $25,000 for the conslraction, demolition, replacement, major repak, renovation, plamfing or design of real property and improvuments thereon in wkich a portion of the Contractor's obl/gation 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 ro implement it accord/Jag to its terms. The Contractor is requested to report on such nnplementafion periodically as provided by the contract, or annually, whichever is more frequent. VIII. Compliance with applicable laws Ia/ Prior to the commencement of any work under this contract, the Contractor is required to meet all legal requirements necessary in the performance of the cen~racr. This includes but is not limited to compliance w/th all applicable federal, state and local laws and regulatmns promulgated thereunder. It is the Contractor's responsibility to obtain any necessary permits, or other authorizations. By signing this contract, the Contractor affirmatively represents that it has complied with said laws. unless it advises the Department otherwise, in writing. The Departmeur 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 remare in compliance with said laws. A failure to notify the Department of noncompl/ance of which the Contractor was or should have been aware, may be considered a material breach of this contract. DC Dispute. Resolution The parties agree to the following steps, or as many as are necessary m resolve disputes between the Department and the Conlractor. (a) The Contractor specifically agrees to submit, in the first instance, any dispute relating to this conlract to the designated individual, who shall render a written decision and furnish a copy ithereofto the Contractor. (1) The Contractor must request such decision m writing no more than fifteen days after it htew or should have known of the facts which are the basis of the dispure. (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 decismn. (b) Upon receipt of the written appeal, the DAI, will review the record and decision. Following divisional procedures in effect at that t/me. the DAI will take one of the following actions, with written notice to the Contractor. (1) Remand the matter to tbe program staff for fmther negotiation or information if iris 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 con£ntmed: o~ (3) Make a determination on the record as it exists ~c~ fhe decision of the DAI shallbe 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 inthvidual to hear disputes is: Roman Rakoczy, BE II Coastal Erosion Section Bureau of Flood Protection NYS Department of Environmental Conservation 625 Broadway, 4t~ Floor Albany, New York 12233-3507 Telephone: (5t8) 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 T~lephone: (518) 402-8140 The Chair of the Contract Review Committee is: Richard IC Randles, Chair Conlract Review Committee NYS Department of Environmental Conservafiun 625 Broadway, I0~ Floor Albany, NY 12233-5010 Telephone: (518) 402-9237 (d~ Upon receipt of the written appeal the Chaff of the CRC, in consultation w/th 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 finding, negotiation, or other appropriate action; or (2) Adopt the decision of the DAI; o~ (3) Consider the matter for review by the CRC in accordance with its procedures. /e) Follow~g 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 pre vide the Conu'actor with an opportunity to be heard. (f) Following a decision pursuant re (d) 2 or (d) 3. the CRC shall make a writlen recommendation to the Assistant Commissioner for Admkfistration 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 (OItMS) 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 parry. App. B 4/17/ O0 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 f'mal determination of a dispute hereunder, the Conuactor shah proceed diligently with the performance of the Contract in accordance with the deoision of the designated individual Nothih~in this Contract shall be conslmed as making final the decision of any administrat~e ~cer upon a question of law. otwi tan g the fo go!n ar e option of II~c Curdi:.clo". th: 31'o'...in:~ >l':~ll .,c s~bject foreview ; ~ ~'.,'('Rt': Ill~pan',,'.i,,;~: m:,h' 5~Ie [5-Aof~e F~cufi~,T ~'.(M~n'ori~, ~ff~m~ O~ed Business icWecl .o Iht ;ideqt:;ley Oi'l'k' (~B~acto#s W~fio~ P~;,k or iii'.: ('~ltli :~,::6~'., 4ho~'. i:'.~ (iFdO.h] qt~effo~s (2) The CRC ~ill promp~y conyene a review m accordance With Article 15~-A o~Cthe Executive Law and the reguI~tio~q promulgated thereunder. X. Labor Law Provisions (a) When applicable, the Contractor shall post. m 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, be Workers' Compensation Law Section 51 notice, alt other notices required by law to be posted at the site, the Department of Labor not~ce that this project is a publ/c wor~ project on which each worker is entitled to rec~e the prevailing wages and supplements for their occupation, and ali other notices which the Department directs the Contractor to post. The Contractor shall provide a surface for such notices which is satisfactory to rte Deparrmen~ The Contractor shalJ maintain such notices in a legible mariner and shall replace any notice or schedule which is damaged, dePaced, illegible 6r removed for any reason. Contractor shall post such notices before commencing any work on the site and shall mainta/n such notices until all work on the site is complete. b) When appropr/are, contractor shall distribnte to each worker for this Contract a nonce, m a form provided by the Department, that th/s project is a public workproject on which each worker is entitled to receive the prevailing wage and supplements for the occupation ar 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 conu'acr. At the time of distribution, Contractor shall have e~ch 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 b~ maintained with the payroll records required by the foll0win§ paragraph (c) Contractor shall maintain on the site the original certified payrolls or certified transeripts thereof winch Contractor and all of its Subcontractors maintain pntsu ~ant to the Ne*z Yotl~ Lab~r~ Law Section 220. Contractor shall'maintain w~th the payrolls or transcripts thereof; the statements signed ~>y each worker pursmmt to paragraph (d) Within thirty days of issuance of the first payroll, and every th/rty days thereafter, the Contractor and every subcontractor must submit a transcript of the original payroll to the Department. which transcript must be subseribed and affirmed as tree under penalty of perjury. XI. Offset tn accordance with State Law, the Department has the authority to arlministratively offset any monies due it from the Contractor, from payments due to the Contractor under this contract. 'Itte Department 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. XIL 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 the Departorent becomes involved in Iifigatmn related to the subject mat~er of this contract, the Contractor agrees to provide background suppor~ and other litigation support, including but not limited to depositions, appearances, and testimony. Compensation will be negotiated and based on rotes established in the contract, or as may otherwise be provided in the contract XIV Equipmem Any equipment purchased with funds provided under this contract, shall remain the property of the Department, unless otherwise provided in tile contract. The Contractor shall be liable for all costs for m~mtainthg the property in good, usable condition. It shall be returned to the Apl. 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 discoveil f~rst mad~ in performance of this Conl~act }hall be the property pf the Department, unless otherwise provided nt the contract The Contractor agrees m piTovide the Department w/th any and ail 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 auy, patented ur copyrighted materialis involved in or resets ffomthe performance of thi§ ConWact, this Article shall apply. (a):Ne Conlmctof shall, at its ,expenSe, defend any suit instlluted against the Department auc[ indemnify the Depmeunent against anY award;of damages and costs in'a'~e againsl the Department by a flt/a! judgment of a comt o last resor~ based on the clarmil/at.any of the products, services or consumable supplies furrfished by the Contractor under this Contract infringes any patent, copyright of otherpreprieta~ 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 stroll keep the Department fully informed concerning the progress of the litigauon. th) If the use of any item(s) or parts thereof is held to infiiage a patent or copyright and its use is enjoined, or Contrac[or 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) mod/fy the same so that it becomes non-thfringmg and of at least the same quality andperformance; (3) replace the item(s) or parts thereof with noninfringing items of at least the same quality and ~tformance; (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 ufa lease, the parties shall tenulnate the lease. If discontinuation or elimination results in the Contractor m?t being able to p~form 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 ufa claim that the Depurtment'~ use of m!y item or material pursuant to or reaulting from this Contra~t/afringes any patent, cop ~yi~i~ght ,di'proprietary r~g~ a~d such actiol~ is fo ~rwar~ded ~y~ the Department t? .the Con. actor fm ,~cS.'ii-c an,12a?¢'n,ifta':,~o, pm ~,i:m! to and docun,e~'l. ?orxQfl,ded ,'o Ih0 Cl:',"ac~'or t,,!ef,'.'" defense, or ar any time the~afte~, the Co. actor is of the opinion that the allegations i~, such ag~al~, in whole or in part, are not covered by the:indeanii~ .ation set forth in this Art/cie, the[CohtractprlC sh~t! ~htely notify the Department and/he O~fice, of ~ A~orney General of the State of lqew Yurt: in wrigl!~ .g ~ shall specify to what extent the Contractor beli~iYes i¢is and is not obligated to defend and indemnify ~der the terms and conditions oftl~ls Contract. ThoContraotar 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 Yerk to appear and defend its interests in cooperation with Contractor as is appropriate, including any jurisdictional defenses which the Deparwacnr and State shall have. (d) The Contractor shall, however, have no liability to the Depamnent under this Article if any infringement is based upon or arises out of: (1) compliance with designs, plans, or specifications furnished by or on behalf of the Department as to the items; (2) alterations of the items by the Department; (3 failure of the Depamnent to use updated kerns provided by the Contractor for avoiding infringement; (4) use of iteins in combination with apparatus or devices not delivered by the Contractor; (5~ use of items in a rammer for which the same were neither designed nor contemplated: or (6) a parent or copyright in which the Department or any affiliate or subsidiary of the Depar~ent has any direct or indirect interest by license or otherwise, re) The foregoing states the Contractor's entire hability for, or resulting from, patent or copyright infringement App. B 4/17/00 Page 6 or claim thereo£ XVII. Force Majeure The term Force Majeure shall include acts of God, work stoppages due to labor disptttes, or strikes, fires, explosions, epidemics, riots, war rebellion, sabotag9 or the like. If a failure of or delay in performanceby either party results from the occorranc~f a Force Majeure ~vent, the delay shall be exgfised anal'the time ~fo? performance extended by a period eq, fi~atent to tile ,t~ne loslibecause of the Force majeure e4~ent, ~I'and to the ekte~it that (a~J.The delay Or fait~e was beyond the control of the party affec~ted~an&not due to,its fault .or negligence; and lb) The delay or failur~ was not extended because of tho~affected perry's failure ro use all reasonable d~xence to overcome, ~he obstacle or to resume peridrmance imme~atel¥ after such obstacle was overcome; and (~) The affected party provides notice within (5) days o£the onset of the event, that it is invoking the protection of this proms/om XVIIt. Freedom of Information Requests The Contractor agrees to provide the Department with any records whioh must be released in order to comply with a request pursuant to the Freedom of Information Law. The l)epartment w/ll provide the contractor with an opportunity to identify material which may be protected from release and to support its position. XLX. Precedence In the event ~f a conflict between the terms of this Appenchx B and the terms of the Contract/including any and all attachments thereto and amendments thereof, but not including Appendix A), the terms of this Appendix 13 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 FEAS1BLITY COST SHARING AGREEMENT BETWEEN THE DEPARTMENT OFTHEARMY AND THE STATE OF NEW YORK FOR IHE MITIGATION OF SHORELINE EROSION DAMAGE AT MATTITUCK INLET, NEV~ 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 WHEi~EAS, 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 inter 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 "Feasibihty Phase Study" (hereinafter the "S~:udy") 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 9%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 t - 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 ofwurk performed by the State pursuant to this Agreement. Study Costs shall iricinde, but not be limited to: labor charges; direct costs; overhead expenses; supervision and administration costs; the costs of participation in Study Management and Cpordinafi0~ ~,~aecor.danee ~itt~ 'Arff. o~e IV of thig.Agreemem; the costs o£~ovlracts witlt third P~rties, Jncludh!g.term'mafiqa or Snspension charges; and any t~rminat~on or suspension costs (~clinarily ctcfmed ~ Ilrose, eosts necessary, t.o terminate ~ngo~g. contracts or obligations and to p~perly safeguam the work already aec0mplished)associatect with thi's 2kgreement. Bi The term "estimated Study Co. sts' skal[ mean the estimatect cost of performing the Study as of the effective date of this Agreement, as sgecified 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 ~ Federal law 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 iNtial 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 Siate in accordance with the ?MP. G. The term "fiscal year" shall mean one fiscal year of the GoverrLment. 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 HI.A, [ll.B. and III.C. of this Agreement, thc 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 apphcable law and regulations, contribute up to 50 percent of Study Costs through the provision of in-kind services. The in-kind servmes to be provided by the State, the estimated negotiated costs for those services, and the estimared~schedule under which thos~ services are to be providec[ are specified in the PSP. ~N2gotiated costs shall be subject to an audit by the Government tO determine, reasonableness, all~cabjlity, and allowability. C~.~ The..S~te'shal[ pay a ~ (50) percent share of excess Study Costs in accordance with Article D. of this Agreement. D~ The 8tate..understands that the schedule of work may require the State to provide cash or in- kin/[ services~at arate that may result in the State temporarily diverging from the obligations concemingcash an~in-kind services specified in paragraph B. ofthis Arficle. Such temporary divergences s~all be identified in the quarterly reports provided for in Article BI.A. of this ,~greement attd'shaltr~ot alter the obligations concerning costs and services specified in paragraph~B, c>£ 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 Govemmem or the State, cumulative financial obligations of the Gevermnent 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 Govermnent and the State agree to proceed. Should the Government and the Stateirequire time to arrive at a decismn, 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 subjec~ 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 stamte. 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 of 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 ;vithin 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 amount 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 to meet the State*s cash payment requirements for its'share of estimated Study Costs, the State must provide a cask contribution currently estimated to be $230~000. Tlte dollar amounts 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, ar/d anticipated inflation. Such cost estimates are subject to adjustment by the Government and are not to be construed as- the total fmanc'ml responsib~Iifies of~ Government and fire State. B The State shall provide its cash contribution required under Article lt.B. offiris Agreement in accordance wifir the following provisions: 1. No later than 30 calendar days prior to fire 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 expendimr, e for the Study, fire 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 1~5 calendar days thereafter, the State shall provide the Government fire full mount 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 ro cover the State's share of contractual and in-house financial obligations athSbutable 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 whting. 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 oftlfis Agreement, the Govemmem shall conduct a final accounting of Study Costs, including disb~rsements by the Govermtaent of Federal funds: cash contributions by the State. the amount of any excess Study Costs, and credits for the negotiated costs of the State, and shall furnish the State with fire results of this accounting. Within thirty (30) days thereafter, the Government, subject to theavailability 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 II.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 inte for the project; or 2. In the event the proj *ct that is the subject of this Study is not authorized for construction by a date that is no later than 5 years of the date of the final 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 atier the date of the final report of the Chief of Engineers or 2 years after the date of the termination o£ 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 unfil 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 gerve 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. ART1CLE V - DISPUTES As a condition precedent to a party bringing any suit for breach of this Agreemem, that parry must first notify the other parry 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 parry acceptable to both parties. The parties shall each pay 50 percent of any costs for the services provided by such a third parry 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 th~ effective date of this Agreement, the Goyemment arid the State shall develop procedures for keeping books, records, d~cuments, and other evidence pertaining to costs and expenses incurred pursuant to this Agreement to tho extent and in anch detail as will properly reflect total Study Costs. These procedures shall incorporate, and apply as appropriate, the Stmadards for financial management systems set forth in the Uniform Administrative Reqnirements 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, dgcnmeats~.a!l~,other ev[rle~ed~! .accordance With ~ese proe,edur, es for a .minimmm of three years aft, er., co!japletto~ of~h,.StuGy ~ m~olufioa o f alt;televanl~ el,aims a~,smg ~efron%~ Tothe cxich.: pcdfiltted t. id'ct ~i~l~l~Ch'.,~!a ~Fcdcral laws ~ r~g~ta~Cm, th, ~q~Lme~t ~dthe State shall c:mh a;Io~ Iht OlbCr io inspect such books, dbaumen,ts, record; and other evidence. B. h accordance with 31 IJ.S.C. Section 7503, the Government may conduct audits in addition to any audit that the State is required to conduct troffer the Single Audit Act of 1984, 31 U.S.C. Sect/ohs 7501-7507. Any such Government audits shall be eof~ducted ,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 audi~[s shall be included in total Study Costs and shared in accordance with the pro~isions of this Agreement. ARTICLE VII - RELATIONSHIP 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 Ir~ the exercise of the State's rights and obligations nnder this Agreement, the State agrees to comply with all applicable Federal and State laws and regu!ations, including Section 601 of Title VI of the Civil Rights Act of 1964 (Public Law 88-352) and Department of De£ense 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 tm2ninate 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.C4 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 tc 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 shallcofielude their activities rela~ng to the Stut[y and proceed to a final accounting in accordance with ,Article IILC~ and tff. D. of tiffs Agreement. Upon termination of this Agreement, all data and kfformation generated as part of the Study shall be made available to both parties. B, ,A~y ~ation~f this Agreement shal! not relieve the parties of liabili~ for any obligations previo~aSl,.y incurred, including the costs ofclosmg out or transferring any existing contracts. ARTICLE XI ~ OBLIGATIONS OF FUTURE APPROPRIATIONS A. N, othing herein shall constitute an obligation of future appropriatiOns by the Legislature of the-S:tate 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 mounts to discharge these obligations, the State shall use its best efforts to satisfy any requirements for payments under this Agreement fi:om any other source of funds legally available for this propose. Further, if the State is unable to satisfy its obligations hereunder, the Government may exercise any legal dg~hts it has to protect the Government's interests related to this Agreement. IN WITNESS WI-I~REOF, 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 Engiaeers, 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 I am the principal legal officer of the New York State Deparm~ent of Environmental Conservation, that the Department of Envkonmental Cbns.erva~ion ~ a legally co~nsfituted; pubhc bodY with full authori~:( and legal, capability to perform the terms offfi~ A~eemer/t between the Department of the Army and the State of New Yorkn 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 Agr) ,e~ ,Cra?ut: if necessary; ia the even,~ of me failure to perform, as~reqm'red by Section 22~ of ptrbl~.L~ 9i-~ 1 (,42 U,S.C~ SectS,~(~..~ 1962d-Sb), anc~that the p~sons ~ho ~a~e~ execmed this Atgr~ment on behalf of the State, o~f New York have a~d with{r~ thei~ Statutory authority. IN.WITNESS WHEREOF, I have made and executed this cemkficafion this day of 2002, General Counsel New York State Department of Environmental Conservation CONTINUING AUTHORITIES PROGRAM PROJECT MANAGEMENT PLAN -Mattituck Harbor, New York Section 1 i I -Mitigation of Shoreline Damages Caused by 'Federal Navigation Project February2002 PROJECT MANAGEMENT PLAN Mattituck Harbor, New York Mitigation of Shoreline Damages Caused by Fedm'al Navigation Project IL III. IV. PROJECT DESCRIPTION A. Authority B. Coagressional District C. Project Location D. Problem Description E. R~eommended Plan F. Status of Local Cooperation 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 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- I~t C. Project Location: The project is located on the shores adjacent to Mattituck Inlet on the north shore of Long Island D. Problem Description: New_York State Department of Environmental Conservation CNYSDEC) has requested a study of the eroded downdrift (eastern) s. horefront in the vicinity of Baileys Beach to determine whether any changes in the project.are warranted to prevent continuing adverse effects to the adjacent shoreline, and to mitigate, to the greatest extenl possible, cumulative downdrift shoxeline 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. Pe-rtinent 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 SCOPE OF WORK A. The feasibility study will determine Federal interest in modifying the existing Federal navigation project at Matilluck Inlet to reduce erosion down drift or east of the inlet. The boundary of the study area is one mile east and west of Mafitmdk Inlet, The goals of the study will be as follows; 5. 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 tm either side of the inlet. De,t, ermine the stability of the shoreline just down di-iR (east) of MaXtituck Inlet. p~_~p w~i~'th0nt'project cond!_tion, __ _ _ E~at~;'~'different sand by-passing options Detel-m'me-the environmental effects of the selected plan ~cterize;~: '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 evak~ate alternatives to mitigate erosion east of the inlet. 3. Start preparing the Environmental Assessment and preliminary real estate analysis IlL STUDY GOALS This document wii! 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 vicinit)~ of Mattituck Inlet are expected to define the possible quantifies of littoral material that could be bypassed to reduce beach erosion east ofthejetties, It is the rote 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 au 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 ~l~&t i6 ~hk~ it as effective as possible in protecting the inlet fi:om the threat of a breach or overwash on the eastern eroded shore. Other alternatives will be considered,.but are not expected to be implementable clue to relative costs, limited effectiveness and potentially greater adverse environmental impacts. Some ofthe alternatives that will be considered are alterations to the jetties, channel co ~guration, and the mining of offshore sources for sand. The changes ~ ~s~lfi~.g fre~m sueh .a!.t, emafiyes c0ul.d introdnce a period of system-wide instability with mcult to mrecast risks and uncertainties concerning impacts to the channel and adjacent shores. These alternatives would havelimited effecfi'~eness and requi~e ,ext?s. iv~., enwrT~en~ ~di,e? and.f~. ~r the jetties, extensive hydrodyn, ~ ~argifc and nY~0Jo~c mofl¢li~,g. Al~ough a wide range Of~,lX)ssible~altematives ve;}i be considered ,Zwo:t e c~ th? ~e.t s ea~? ~,hore, the study win locus 0n alterna~es. ~ are most rtectrve;md avm~ significant system-vade changes ~o avbid and nnnnmze votem~al advers~ ~onmerdnl impacts. ' -- No Significant Issues. IIL PROJECT SCHEDULE (a) Overall Schedule ~ DATES Scheduled I Forecast f Actual ' Notes ~-~1 lnm ~ate~Study (DPK) Sep 00 Mar 00 7~-2 Reconr/hissance Repo~ ('Fact SheeO Feb 02 ' ~')3 Feasibility Stud~ inifia~ed May 02 7,-4 ~f~,Yeas~ility ~RePor t Ma~ 03' C-5 Final DpR Au~ 03 ~-6 l~eceipt of P&S Funds De~ 03 ,~-7 ~&S completed ~ July 04 ~-8 ~ ?roject Approval July 04 ~-9 2onstmcfi0n Funding Commitment July 04 ~-10 ?CA Execution July 04 ~-11 Initial Work Allowance (CMR) Jul 04 ~-12 XTotice of Physical Completion Jul 05 2-13 Final C~ort - Aug 05 (b) Carrent Fiscal Year ~1 DATES NO.~ ~eston~es ~ ~ ~ ~ Sehed~iec~ I Forecast, [ 'Actual 'Notes! C2 ',econnaissance Report Feb 02 Feb 02 C_3 Feasibility StUdy initiated. May 02 Diffusion Analysis Aug 02 ' IV. PROJECT FUNDING PROJECT FUNDING TOTAL FUNDS REQUIRED (Federal Funds On!y) (000's) DPR P&S CONST Project Cost 280.0 Allocated to Date I00.0 Required to Complete 180.0 FUNDS AVAILABLE CURRENT FISCAL YEAR (000's) FY 01 Carry-Over FY 02 Budgeted TOTAL FED NON~FED TOTAL 18.0 0.0 FUNDING HISTORY (Federal Funds Only) (000s) DPR P&S Consff TOTAL Prior FY 03. FY02 100.0 100.0 V. PROJECT TEAM Project Manager Karl AMen PL-F PL-F Karl AMen Kobert Smith PL-EN Chris Ricciardi Johnny Chart PL-F Planning Division Plan Formulation Environmental Resources Cultural Resources SocimEconomics HTRW Independent Technical Reviewer Paul Sabalis PL-F Norman Blumenstein PL-F Engineering Division H&H Geotech Cost Operations Division Real Estate Division Construction Division Office of Council Local Sponsor Odile Accilien EN Stan Michelowski Stan Nuremburg Thomas Harnedy ' Ellen Simon NYSDEC Bill Daley OP CO Marty Goff VI. PROJECT TEAM ENDORSEMENTS PROJECT TEAM CONCURRED BY Planning Division Engipeeting Division' Team Members :,~,/: ,/ ._ ,,: Engineering Division Date Construction Division Date Real Estat~ivision Team Members Real Estate D/vision Date Office ,o~Couns~Te,~._~/Me4)rs - Office of Counsel Date VII. PROJECT TEAM ENDORSEMENTS (Con't) Pro~ect Manager Dine Date ATTACHMENT A - DET~AIL~0 PROJECT SCHEDULE ATTACHMENT 1~ ~ ~0~ ALLOCATION Engineering Tasks · Prepare Survey SOW. Survey SOW, including beach profiles of the project area ~anOnsist~ng of 12 long range profile lines, each extending 2,000 ft. offshore and 10 short ge Iia~s (from lh~ bas~line to MLW) taken between the long ranges, has been prepared for beach profile survey. Review of Survey Data. CRB will perform review of all smwey products. Shoreline Comparison Analysis. Based on new survey data and using previous available sh°~elineinf°rm .~°n; a ~horetine comparison analysis will be perfo~rmed to. determine the e~ ent of eroslon and ac~crefi°n on the east and west side of the inlet. Shoreline compa~son~ ~ also consist fi/plotting historical, shoreline information on plan Kew. The. volume eroded and accumulated on the east and wes/side, respectively, will also be determined. Shoreline Erosion Analysis. Shoreline erosion rotes wilt be computed for 2, 5, 10, 20 and 25 ye~ar storm recurrence intervals. The EDUNE model will be used and shoreline profile characteristics, determ'med 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 fi/the inlet to the shoreline further east fi/the inlet. This analysis will provide an mtderstanding of the movement of sand east fi/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 bluffeast 6fthe downdrifi beach approximately 3,000 ft from the inlet. Using the results from the diffusion analysis, the impact of the fronting beach to the bluff stability will be determined. Possible blufffailure will be determined for existing and without project conditions and for with project and future conditions. En_gineering Appendix. Prepare input to final report for submission to NAD Assessment of Alternatives. A screening fi/possible types fi/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 environmemal 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 aCeomplisla~,by Gost 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 pm-application permit requested documentation will be prepared that will include, but not be limited to the following; I. 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 Culturat ResourceReport. 5. Ev~uat~e ~and by-passing alternatives 6. . F, erf~rm any samplingregime required by regulatory agencies.( As coordinated with then°il-F~deral Sponsor, there will only be one sampling period for the feasibility study) Plan Formulation Tasks The planning tasks wilt be as follows; ( 1 ) Formulation of Alternatives (2) Evaluation of Alternatives (3) Determination of the percent of beach erosion problem caused by the Federal n'a¥igafion projec.t. (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 CONSOL PLAN US Am~ ~rps New York QUALITY CONTROL PLAN for 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 IL PURPOSE OF THE FEASIBILITY PHASE .................................................. 1 Ill. STUDY AUTHORITY2 ......................................................................... : ......... 1 IV. ' DESCRIPTION OF STUDY AREA'....: .............. :.: ................................... :x.t ....... V. QUALITY CONTROL PROCESS ................................................................ 1 A. Product Review ....................................................... .-. ................................ 2 B. Independent Review .................................................................................. 2 VI. REVIEW SCHEDULE ............ 2 ....................................................................... 2 VII CERTIFICATION OF REVIEW ................................................ : ....................... 3 INTRODUCTION The New York District Planning Division has adopted this Quality Control Plan (QCP) for the Mattit~ck Harbor, New York Section 111 - Mitigation of Shoreline Damages Caused byFederal Navigation Project. This QCP has been tailored to meet the needs of this study effort and is commensurate with theIevel of risk, cost, complexity and uniqueness of the effort be'rog 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 o£all 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 III. STUDY AUTHORITY Section 111, River & Harbor Act of 1968 as amended authorizes the study under the Continuing Authorities P~ogram (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 independent review. Together, the two reviews assure a degree of completeness, correctness and consistency. A. Product Review. Each division will conduct their own internal review through its respective 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 (1) 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 reviewteam members will review the DPR for the Mattituck Harbor, New York Section 111 -Mitigation of Shoreline Damages Caused by Federal Navigation Pro}ect. The review of Draft and Final products, when available, will identify and resolve problem& if any, prior to report submissior~ The Study Team will incorporate all appropriate changes, These records will:be kept in the project files. Unusual issues/conflicts that cannot be resoIved may be addressed to an apl~ropriate resource tn the North Atlantic Db;ision for guidance. The Division/Office Chiefs signature will ensure that the product and reviews were satisfactorily accomplished in accordance with procedures established with .each D~vision/Office. The Division/Office Chiefs will submit certification of review at the conclusion ofthe study. Anexampleofcertificationisprovided. (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 3JE services will be acquired through.existing Indefinite delivery Contracts or through existing government fund transfer systems.