HomeMy WebLinkAboutNYS DEC FW&M MELISSA A. SPIRO
LAND PRESERVATION COORDINATOR
melissa.spiro@town.southold.ny.us
Telephone (631) 765-5711
Facsimile (631 ~ 765-6640
OFFICE LOCATION:
Town Hall Annex
54375 State Route 25
(comer of Main Road & Youngs Avenue)
Southold, New York
MAILING ADDRESS:
P.O. Box 1179
Southold. NY 11971-0959
DEPARTMENT OF LAND PRESERVATION
TOWN OF SOUTHOLD
To: Elizabeth A. Neville
Town Clerk
Date:
Re:
Melissa Spiro
Land Preservation Coordinator
January 10, 2006
Contract No. C005692 = $1,000,000 grant
Plan and Cost-Sharing Agreement for Acquisition of Coastal Wetlands
Pipe's Cove Land Acquisition - Reese Property
Dear Betty:
Enclosed you will find the Town's copy of the approved and executed Plan
and Cost Sharing Agreement for Acquisition of Coastal Wetlands referencing the
$1,000,000 grant the Town was awarded from NYS-DEC, Division of Fish, Wildlife
and Marine Resources for the Reese property acquisition. Please enter Contract No.
C005692 into LaserFiche and retain the original document for safe-keeping.
Supervisor Horton executed this agreement in accordance with Resolution
No. 390, adopted June 21, 2005, by the Southold Town Board. A copy of said
resolution is attached to the document.
Mehssa
/md
cc: Patricia A. Finnegan, Town Attorney w/o enc.
New York State Department of Environmental Conservation
Division of Fish, Wildlife & Marine Resources, 5th Floor
625 Broadway, Albany, New York 12233-4750
Phone: (518) 402-8924 · FAX: (518) 402-9027
Website: www.dec.state.ny.us
Denise M. Sheehan
Commissioner
Janua~ 4,2006
Ms. Meiissa A. Spire
Land Preservation Coordinator
Department of Land Preservation
Town of Southold
P.O. Box 1179
Southhold, New York 11971-0959
Subject: Contract C005692
Pipe's Cove Land Acquisition
Dear Ms. Spiro:
Enclosed is your copy of Contract No. C005692. It has been approved by ail
State agencies concerned.
If you have any questions, please call me at (518-402-8994) or Heather Amster
at (631-444-0300). Thank you for your assistance during the contract process.
Sincerely,
Enclosure
cc: H. Amster
Sondra King
Sr. Administrative Assistant
Division of Fish, Wildlife and Marine Resources
JAN -9 2006 !'~ ~
Contract No. C005692
PLAN AND COST-SHARING AGREEMENT FOR
ACQUISITION OF COASTAL WETLANDS
Project Name:
Cooperator:
Pipe's Cove Coastal Wetlands
Town of Southold
This AGREEMENT by and between the New York State Departmem of Enviromemal
Conservation, hereinafter referred to as "Departmem," with offices located at 625 Broadway,
Albany, New York 12233 and the Town of Southold, hereinat~er referred to as "Town," with
offices located at 53095 Main Road, Southold, NY 11971.
WITNESSETH:
WHEREAS, Pipe's Cove, located in the Town of Southold, Suffolk County, New York is
recognized as a Coastal Wetland of Critical Importance to the environmental health of the
Peconic Estuary; and
WHEREAS, the Department, the Town, the County of Suffolk (hereinafter "County"),
and The Nature Conservancy (hereinafter "TNC") have undertaken a land preservation effort at
Pipe's Cove which includes acquisition of certain critical properties, including the 47.31-acre
Reese property (hereinafter "Property'); and
WHEREAS, the Town has entered into a Contract of Sale to purchase the Property for
$2,250,000, which Contract is attached hereto as SCHEDULE A; and
WHEREAS, the Department has been awarded a $1,000,000 Coastal Wetlands Grant
(hereinafter "Grant") from the U.S. Fish and Wildlife Service for purchase of the Property, and
has entered into Grant Agreement Number C - 4 -L- 1, dated March 28, 2005, with U.S. Fish &
Wildlife Service, attached hereto as SCHEDULE B; and ~--~ [~ ~ [~ ~ ~
1 .~ JAN -9 2006
DEPI OF LAND
PRESERVATION
WHEREAS, under the terms of the Grant Agreement, the Town, County and TNC are
matching the $1,000,0000 federal contribution with cash, land and in-kind services totaling
$2,067,000, including $1,250,000 cash needed to complete the Reese acquisition; and
WHEREAS, under the terms of the Grant Agreement, the Department is to subgrant the
Grant to the Town, for purposes of completing the Reese acquisition:
NOW, THEREFORE, in consideration of the promises and the mutual covenants and
conditions contained in this Agreement, the Department and the Town agree as follows:
1. The Department will, subject to the availability of funds and upon transfer of the deed to the
Town in recordable form, tender to the Town a State Treasury Check in the amount of
$1,000,000.
2. The Town will cause the deed from Reese to the Town to include the following language:
"The above-described property is acquired in part with funding received by the
State of New York from Grant Agreement Number C - 4 - L - 1 dated March 28,
2005 between the U.S. Fish and Wildlife Service (Service) and the State of New
York, Department of Environmental Conservation. All present and future use of
this property are and shall remain subject to the terms and conditions described in
the Notice of Grant Agreement, attached hereto as Schedule __ and recorded
herewith, and to the other administrative requirements of the applicable grant
funding program of the Service."
3. The Town will cause the deed from Reese to the Town to include as an exhibit a Notice of
Grant Agreement, substantially in the form attached hereto and made a part hereof as
SCHEDULE C;
2
4. Concurrently with recording of the deed to the Town, the Town will cause a Notice of Grant
Agreement to be recorded against each of the properties being contributed by the Town and
County as match under the Grant Agreement. The match properties are the Posillico Property,
SCTM# 1000-53-1-7 and 1000-53-3-15.1, the Waldron Property, SCTM# 1000-53-2-5, and the
Levin Property, SCTM# 1000- 45-1-9.1. The form of the Notice of Grant Agreement for the
match properties is attached hereto and made a part hereof as SCHEDULE D.
5. The Town will ensure that the conveyance complies with all applicable state and federal laws
including State Environmental Quality Review Act (SEQRA).
6. The Town covenants and agrees that the Property will be accessible to the general public,
including all residents of the State of New York.
7. The Town will visibly and permanently recognize the Department and US Fish & Wildlife
Service participation in the project on all site identification signs installed upon completion of
the project.
8. The Department and Town will comply fully with 50 CFR Part 84 Department of the Interior
Fish & Wildlife Service National Coastal Wetland Conservation Grant Program, with specific
emphasis on 84.48 as it pertains to the procedures of acquiring, maintaining and disposing of real
property.
9. The Town will comply fully with the terms and conditions of Appendices A and B.
10. After signatures are affixed hereto and upon approval by the Attorney General and the State
Comptroller, this Agreement shall be binding upon the parties, their heirs, personal
representatives, assigns and successors in interest.
11. Notwithstanding the foregoing, if the conveyance contemplated herein is not
accomplished by December 31, 2005, this Agreement shall become null and void..
1N WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto on the
day and year appearing following their respective signatures.
SIGNATURE PAGE
Contract Number: C005692
Agency Certification:
"In addition to the acceptance of this Agreement, I also
certify that original copies of this signature page will be
attached to all other exact copies of this contract."
TOWN SIGNATURE
DEPARTMENT SIGNATURE
DATED: I t' t [J~' 0 C
ATTORNEY GENERAL'S SIGNATURE
APPROVED AS TO FORM
NYS ATTORNEY GENERAL
COMPTROLLER'S SIGNATURE
DATED:
By signature hereunder, the Town of Southold represents that it has the legal status necessary to
enter into this contract and that the person signing is authorized to do so as evidenced by a
resolution of its legislative body. a,. J,,ff~
Authorized Representative: ¢
Supervisor/ 6/30/05
Date
On this 30th day of June ~ 20 Q5 before me personally came Joshua
Y. Horton to me known who being duly sworn did depose and say thatm&e is the
Supervisor (list title) of the Town of Southold
the political subdivision of agency there of described in and which executed the within
instrument; that s/he knows the seal of said political subdivision; that the seal affixed to said
instrument is such seal; that it was so affixed by order resolution or authority of the
Southold Town Board (attached certified copy of order resolution or the
ordinance authorizing execution of this contract) of said political subdivision, and that ~rhe
signed his/her name by that authority.
MELANE DOROSKI
NOTARY PUBUC, State of New
No. 01D04634870
Qualified i~ Suffo k County
Commission F. xpir~s Septembe~ 30, ,oUJ~o
ELIZABETH A. NEVILLE
TOWN CLERK
REGISTRAR OF VITAL STATISTICS
MARRIAGE OFFICER
RECORDS MANAGEMENT OFFICER
FREEDOM OF INFORMATION OFFICER
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
Fax (631) 765-6145
Telephone (631) 765-1800
southoldtown.northfork.net
OFFICE OF THE TOWN CLERK
TOWN OF SOUTHOLD
THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 390 OF 2005
WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD
ON JUNE 21, 2005:
WHEREAS, the Town of Southold, after thorough consideration has hereby determined that the
signing of this Plan and Cost Sharing Agreement with the State of New York for the Acquisition
of the Pipe's Cove Coastal Wetlands is desirable and in the public interest; now, therefore, be it
RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs
Suoervisor Joshua Y. Horton to execute a Plan and Cost Sharing Agreement with the State
of New York in connection with the Acquisition of the Pioe's Cove Coastal Wetlands, all in
accordance with the approval of the Town Attorney; and, be it further
RESOLVED that a certified copy of this resolution be prepared and sent to the New York
State Department of Environmental Conservation, 625 Broadway, Albany, New York 12233
together with the executed Plan and Cost Sharing Agreement, and a copy sent to Heather
Amster, Esq., NYS-DEC, Division of Land & Forestry, Region 1, Bureau of Real Property,
Building 40, SUNY, Stony Brook, NY 11790.
Elizabeth A. Neville
Southold Town Clerk
CERTIFICATE OF RECORDING OFFICER
That the attached Resolution is a true and correct copy of the Resolution,
authorizing the signing of a Plan and Cost Sharing Agreement in connection with Pipe's
Cove Coastal Wetland Acquisition, adopted at a legally convened meeting of the Town
Board of the Town of Southold duly held on the 21st day of June, 2005; and further that
such Resolution has been fully recorded in the Town Board Minutes in my office.
(Title of Record Book)
In witness whereof, I have hereunto set my hand this 20th day of June, 2005.
If the Applicant has an Official Seal,
Impress here.
Signature of Recording Officer
Town Clerk
~ritle of Recording Officer
WARNING: NO REPRESENTATION IS MADE THAT THIS FORM OF CONTRACT FOR THE
SALE AND PURCHASE OF REAL ESTATE COMPLIES WITH SECTION S-702 OF THE GENERAL
OBLIGATIONS LAW ("PLAIN LANGUAGE").
RESIDENTIAL VACANT LAND CONTRACT OF SALE
THIS IS A LEGALLY BINDING CONTRACT. IF NOT FULLY UNDERSTOOD,
WE RECOMMEND ALL PARTIES TO THE CONTRACT CONSULT AN ATTORNEY BEFORE SIGNING,
NOTE: FIRE AND CASUALTY LOSSES AND CONDEMNATION
This contract form does not provide for what happens in the event of fire, or other casualty loss or condemnation before
the title closing. Unless different provision is made in this contract, Section 5-131 I of the General Obligations Law will
apply. One part of that law makes a Purchaser responsible for fire and casualty loss upon taking possession of the
Premises before the title closing. ~t[F('~'[ 'g
·
Contract of Sale made as of~ ~/;' 200( BETWEEN
Harold Rease, Jr., Ronald Reese and Christine Reese
Address: 74 Whitehall Road, Rockvllle Center, New York 11570
Social Security Number/Fed. I. D. No(s): hereinai%r called "Seller" and
THE TOWN OF SOUTHOLD. 53095 Main Road, P.O. Box 1179, Southold, New York 11971,
Address:
Social Security Number/Fed. L D. No(s):
here/namer called "Purchaser."
The parties hereby agree as follows:
1. Premises, Seller shall sell and
convey and Purchaser shall purchase the property,
together with all buildings and improvements thereon
(collectively the "Premises"), more fully described on
a separate page marked "Schedule A," annexed hereto
and made a part hereof and also known as:
Street Address:
+ 47.314 acres
VACANT LAND located at
70380 Main Road, Greenport
Tax Map Designation:
1000-45-5-5
Together with Seller's ownership and rights, if any, to
land lying in the bed of any street or highway, opened
or proposed, ac[ioining the Premises to the center line
thereof, including any right of Seller to any unpaid
award by reason of any taking by condemnation
and/or for any damage to the Premises by reason of
change of grade of any street or highway. Seller shall
deliver at no additional cost to Purchaser, at Closing
(as hereinat~er defined), or therea~er, on demand, any
documents that Purchaser may reasonably require for
the conveyance of such title and the assignment and
collection of such award or damages.
2. Personal Property. This sale also includes
all fixtures and articles of personal property now
attached or appurtanam to the Premises units
specifically excluded below. 8oiler represents and
warrants that at Closing they will be paid for and
owned by Seller, free and alear of all liens and
encumbrances, except any existing mortgage to which
this sale may be subject. They include, but are not
limited to: Air Conditioning Equipment and
Installations, Pumps, Plumbing. i~athroom and
Kitchen Cabinets, Range, Oven. Refrigerator, -Freezer,
Washing Machine, Clothes Dryer, Dish,masher,
Garbage Disposal Unit, Awnipgs, Screens, Sbadoo]~
Venetian Itl/nde, Window ~eatments, Ston,a Doors~
Storm Windows, Door Mirrors, Shrubbery. -Fencing,
Flagpole, Tool 8hod, Mail l~ox, Outdoor Statuary,
Weather Vano, Window foxes, Television Aerials
Switch Plates and Door Hardware,
bleating/Lighting/Cooking Fixtures, Mantels, Wall to
Wall Carpoting~ and built ins not excluded bolo,.,;
(strike out inappliaable items). A8 SAME
PRESENTLY EXISTS IN OR ON THE
PREMISES IN "AS IS" CONDITION.
Excluded from this solo are furniture and household
3. Purchase Price. The purchase price is:
payable as follows:
$2,250,000.00
(a) on the signing of this contract, by
Purchaser's check payable to the Esorowee (as
hereina~er defined), subject to collection, the receipt
of which is hereby acknowledged, to be held in escrow
pursuant to paragraph 6 of this contract (the
"Downpayment"): $
(b) by allowance for the principal
amount unpaid on the existing mortgage on the date
hereof, payment of which Purchaser shall assume by
joinder in the deed: $
(c) by a purchase money note and
mortgage from Purchaser to Seller:
$
(d)
with paragraph 7:
balance at Closing in accordance
$2,250,000.00
4. Existing Mortgage. (Delete if inapplicable)
If this sale is subjoot to an existing mortgage as
indicated in paragraph 3(b) above:
(a) The Promises shall be- conveyed
subject to the continuing lion of the existing mortgage,
which is presently payable, with interust at tho rate of
percent par annum, in monthly installments- of
$ whioh include principal, interest and
escrow amounts, if any. and with any balance of
principal being duo and payable on
-- (b) To the extent that any required
payments are made on tho ex/ming mortgage between
the date hereof and Closing which reduce thu unpaid
principal amount thereof below the amount shown in
paragraph 3(b), than tho balance pt' tho price payable
at Closing under paragraph 3(d) shall be increased by
the amount of the payments of pr/no/pal. Seller
represents and warrants that tho amount shown in
paragraph 3(b) is substantially correat and agrees that
only payments requirud by tho ox/sting mortgagu will
be made bet,maon tho data horeof and Closing.
(o) If there is a mortgagee escrow
account, Seller shall asoign it to Pumhaser, if it ~n bo
assigned, and in that ease Purshaser shall pay the
amount in tho o~row aanount to Sailor at Closing.
(d) .Seller ~hail deliver to Pumha~or at
Closing a caStiGate dated not mom than 30 da,ye
before Cleans ai~ad by ~ holdas of tho existing
mongag~, in form fur recording oe~ing ~ amount
of ~a unpaid p~noip~, ~a dm~ to which intor~t h~
haan paid ~d~ ~oun~, if ~y, olaim~ to
unpaid for principal md inta~ i~mi~ng ~e c~.
8oiler ahall pay ~a f~a fur rcaording anoh ~ifi~to.
If ~ holder of tho ani~ng mo~ i~ a b~k or
o~ar th~itotian ~ defined in ~otian 274 a of
Real Pmpo~ Law it may, inatsM of ~o ~8~ifi~e,
fumi~ a leRor oi~od by a duly on.cried
employee or a~nh daad not moro ~ 30 day~ before
Cluing, annmining ~s ~ info.etlon.
(o) Sailer ropras~nto and warrant~ that
(i) Sailor hag delivered to Purchaser true and anmplote
anpias of tho existing mortg~a, tho note soanr~l
thereby and any sxtansion~ and modifisations thereof,
(ii) the existing mortgage is not now, and at the time
of Ctosing will not be, in default, and (iii) the existing
mortga~ does not anntain any provision that permits
the holder of the mortgage m r~quiro its immodinte
payment in full or to ohang~ any ethos term thasecf by
reason of the cole or annv~y~noo of tho Premises.
$. Purohuso Mousy Mort~. (Dolet$ if
inapplioable) If thoro is to bo a purchar~ munsy
mortgage m: indianted in paragraph 3(0) abo~:
(a) Tho purchase money note and
mortgage shall be drawn by the attorney for Sailer in
· e fo~ ~hed or, if no~ ~ ~e o~d~d fo~
MoptM by ~a Now York S~ ~d Title
~infion. P~oh~or ~h~l p~J at Cloning ~
mo~ r~oMing ~ reooMing f~ ~d ~a
a~m~s face in ~a ~o~t of ~ for i~
(b) The purshaso money note and
mortgage shall also provide that it is sobjsst mad
subordiunte to the lion of tho oaiating mortgage and
any extensions, modifiaatioas, raplanaments or
annsolidatiuns Of tho oMming mortga$o, provided that
(i) tho inter~t rate thereof shall not bo gnmter than
poroont per annum and the total debt sasvioe
thorounder ~mll not be grzater than $ per
annum, end (ii) if the principal amount thereof oh~ll
exceed the amount of prinoipM owing and unpaid on
the nailing mortgage at the time of plasing such now
mortgage or consolidated mortgage, the e}to~ bo paid
to the holder of sooh pumhac~s money mortgage in
reduction of the prinalpal the?asr. The purshase
money mortgage shall also provide that sosh payment
to the holder thereof shall not alter or affect the regular
iantMlmenta, if any, of principnl payable thereunder
and that the holder thoranf ~xill, on demand and
without charge therefor, exsouto, acknowledge and
deli~,~r any agreement or agroomont~ further to
offostuate ouch subordination.
for any roar, on Clooing does not oeanr and either p~
gives Notice (as defined in paragraph 25) to Eooro~o
demanding payment of the Downpaymant, ~oorow~e
shall give prompt Notise to the other party of anab
demand, If ~sorowee does not ranoivo Noti~ of
objection .from ~uoh other pray to the prepaid
payment within 10 hue, ieee du~ a1~er tho giving of
such Notice, ~;aroxvo~ is haraby anthoriz~:l and
directed to make such payment. If
receive anoh Notio~ of objantion within such 10 da)'
period or if for any other r~on Ec~m,~o in good
faith shall cleat not to make such payment, Esoros~
shall anntinue to hold guab amount until otherwi~
dir~ted by Motioe from the pasties to thio ountr=at or u
final, nounppealshle judgment, order or danroo of a
sourt. However, Esorowoo shall have the fight at any
time to deposit tho Downpaymant and the interest
thereon ~,Ath the clerk of a anurt in tho ananty in
which tho Premiss am lanat~d and shall give Notice
ef ~uoh deposit to Seller and Purchaser. Upon sush
deposit or other dishurzment in ananrdano~ with tho
terms of thio paragraph, Igsoro~c shall be relieved
and di~sharg~d of all further obligation~ and
maponsibilitias hereunder.
(b) The pm'ties anknowlodge that,
although Eoarox~ io holding the Do~paymant for
$o[lor'~ asoount, for all other
acting solely as a stakeholder at their roquom and for
their convenience and that lganroweo shall not be liable
to eithas party for any ant or omission on its pm
unless taken or c, uffor~ in bad faith or in willful
disregard of thio aontn'~t or involving Dro~
negliganoe on tho p{~ of Eooraxx~o. Seller and
Purchaser jointly and ~rally a~cc ~ defend,
indemnif7 and bold Esorowoe hasml~ from and
against all ansts, claims; and anpoan~ (including
reasonable uttom~' f~) incurred.in anuneotiun with
the performance of Eoarosxze's duti~ heroandsr,
except with re~p~t to aztinn~ or 0miasions token or
~uffered by Ec~l~xwe in bad faith or in willful
disrega,M of thio annt~ant or inv~lvin§
nogii~noo on tho pm of Fs~arov,~o.
(o) ~omw$o may ant or refrain from
acting in rsap~ot of any matter referred to herein in full
reliance upon and with tho advise of anusol which
may be selected by it (including any member of its
firm) and shall bo fully pmtant~d '.in so anting or
refraining from eating upon the a~vioo of suoh
(d) Esoro~o anlmowledgcs manipt of
the Downpaymant by cheek subject to anllantinn and
Esornwso's agreement to the provi~iana of thio
paragraph by ~igning in the plane inthantod on the
aignatoro page ofthM contract.
(e) E~oro,~e or any member of its
firm ~hall bo pormittsd to ant as anusol for Seller in
any dispute as to tho disbursement of the
Downpaymont or any other dispute botv,~oen thc
pm-tie: whether or not Eoorowan is in posocsc, ian of the
Downpaymant and anntinuas to eat as Ec~rowee.
6. Downnavmant in F~erow. (a) 8~11or2
attorney ("~oorowoo") shall hold tho Downpayment.
for Seller's asoount in e~row in a c~gregated bank
aanount at until Closing or
~oaner torminatiun of this sontraot and shall pa)' o~r
or apply the Dovmpaymant in ancordanoe with the
terms of this paragraph. E~asow~ shall not hold the
Dov~npaymant in an interas¢ bearing account for tho
benefit of tho pmti~. If intareat is held for the benefit
of the parties, it shall be paid to tho party entitled to
the Downpaymant and the part)' receiving the inter~X
:hall pa), any income taken thereon. If interest is not
held for tho ban~sfit of tho pastime, tho Downpaymant
shall be placed in an IOLA anoount or as otherwis~
permitw, d or required by lasv. Tho ~osial Security or
F~daral Idantifiantion number~ of the parties shall be
furnished to ~orow~c upon r~luast. At Closing, the
Dov~npaymant shall b~ paid by ~;orowan to Seller. If
7~_7. Accantable Funds. All money payable
,d~r ~h s contract, unless otherwise specified, shall
be p~d by:
(a) Cash, but not over $1,000.00;
(b) Good certified check of Purchaser
drawn on or official cheek issued by any bank, savings
bank, trust company or savings and loan association
having a banking office in the State of New York,
unendorsed and payable to the order of Seller, or as
Seller may otherwise direct upon not less than 3
business days notice (by telephone or otherwise) to
Purchaser;
(c) As to money other than the
purchase price payable to Seller at Closihg, unterrified
check of Purchaser up to tho amount of $1000.00; and
overnight courier, with receipt acknowledged, to the
respective addresses given in this contract for the party
and the Escrowee, to whom the Notice isto be given,
or to such other address as such party or Escrowee
shall hereafter designate by Notice given to the other
party or parties and the Escrowee pursuant to this
paragraph. Each Notice mailed shall be deemed given
on the third business day following the date of mailing
the same, except that any notice to Escrowee shall be
deemed given only upon receipt by Escrowee and each
Notice delivered in person or by overnight courier
shall be deemed given when delivered.
26. No Assignment. This contract may not be
assigned by Purchaser without the prior written
consent of Seller in each instance and any purported
assignment(s) made without such consent shall be
void.
27. Broker. Seller and Purchaser each
represents and warrants to the other that it has not
dealt with any real estate broker in connection with
this sale other than NO BROKER ("Broker") and
Seller shall pay Broker any commission earned
pursuant to a separate agreement between Seller and
Broker. Seller and Pumhaser shall indemnify and
defend each other against any costs, claims and,
including reasonable attorneys' fees, arising out of the
breach on their respective parts of any representation
or agreement contained in this paragraph, The
provisions of this paragraph shall survive Closing or,
if Closing does not occur, the termination of this
contract.
28, Miscellaneous. (a) All pri~r understandings.
agreements, representations and warranties, oral or
written, between Seller and Purchaser are merged in
this contract; it completely expresses their full
investigation, neither party relying upon any statement
made by anyone else that is not set forth in this
contract.
(b) Neither this contract nor any
provision thereof may be waived, changed or
cancelled except in writing. This contract shall also
apply to and bind the heirs, distributees, legal
representatives, successors and permitted assigns of
the respeclive parties. The parties hereby authorize
their respective attorneys to agree in writing to any
changes in dates and time periods provided for in this
contract.
(c) Any singular word or term herein
shall also be read as in the plural and the neuter shall
include the masculine and feminine gender, whenever
the sense of this contract may require it.
(d) The captions in this contract are
for convenience of reference only and in no way
define, limit or describe the scope of this contract and
shall not be considered in the interpretation of this
contract or any provision hereot~
(e) This contract shall not be binding
or effective until duly executed and delivered by Seller
and Purchaser.
(t) Seller and Purchaser shalI comply
with IRC reporting requirements, if applicable. This
subparagraph shall survive Closing,
(g) Each party shall, at any time and
from time to time, execute, acknowledge where
appropriate and deliver such further instruments and
documents and take such other action as may be
reasonably requested by the other in order to carry out
the intent and purpose of this contract. This
subparagraph shall survive Closing.
(h) This contract is intended for the
exclusive benefit of the parties hereto and, except as
otherwise expressly provided herein, shall not be for
the benefit of, and shall not create any rights in, or be
entbrceable by, any other person or entity.
SEE RIDER ANNEXED HERETO
IN WItTSS Wy~EI~OF, th~contract has been duly executed by the parties hereto.
M,AROLD~'~L'~"'REESt~. JR., ~ |' Seller. ~ ~ T~E TOWN~ SOUTHOLD
CHRIST1N~ REESE
Attorney for Sellers: PAUL CAMINITI, ESQ.
Attorney for Pumhasers: LISA C. KOMBRINK
Address: 54075 Main Road
Southold, New York 11971
Address: 235 Hampton Road
Southampton, New York 11968
Tel.: (63 I)765-5900 Fax: Tel.: (631)287-3939 Fax: (631)287.3790
R;[DER TO CONTRACT OF SALE
DATED ~~/, 200.~j
BETWEEN
HAROLD REESE, Jr., RONALD REESE AND CHRISTINE REESE, SELLERS
AND
TOWN OF SOUTHOLD, PURCHASER
29. Description. Supplementing ¶1 of the printed form, the area and dimensions of
the premises are subject to such changes and modifications consistent with the area and
dimensions as shown on a survey (see ¶32 herein).
30. Survey. Purchaser will have the Property surveyed by a licensed land surveyor
to determine the actual acreage of the area for Town acquisition. The cost of the survey of
the Property shall be paid by the Purchaser.
31. Environmental 1Inspection. Supplementing ¶12 of the printed portion hereof,
Purchaser may conduct an environmental inspection of the Property. If Purchaser elects to
do so, the Purchaser's obligations under this agreement are subject to and conditioned on
the receipt of a report verifying that there are no negative environmental conditions,
including but not limited to debris, equipment, abandoned vehicles or unused wells, or any
hazardous substances on or in the premises, including structures thereon. The Seller shall
have the right to remedy any defects raised by an environmental inspection, at his sole
cost and expense, upon notice to the Town and within a reasonable period of time. In this
event, Seller shall provide proof satisfactory to the Purchaser that such defects have been
cured. If Seller elects not to remedy the defect(s), the Purchaser may cancel this
Agreement and be reimbursed for the costs of title examination, survey and environmental
inspection, with no further liability between the parties, or the Purchaser may proceed to
closing.
32. Seller's Representations. Seller represents that:
a) To the Seller's knowledge at no time since Seller acquired title, has the
Property been used for the generation, storage, or disposal of hazardous substances, or as
a landfill or other waste disposal site;
b) there are no hazardous substances or toxic wastes in or on the Property
that may affect the Property or any use thereof or that may support a claim or cause of
action under common law or under any federal, state or local environmental.statute,
regulation, ordinance or any other environmental regulatory requirement, nor' has any
action been instituted for enforcement.of same;
c) to the Seller's knowledge, there are currently no buried or underground
storage or fuel tanks on the Property, and none were Io(~ated on the property;
d) there are no actions, suits, claims or proceedings seeking money damages,
injunctive relief, remedial action or any other remedy pending or threatened relating to a
violation or non-compliance with any environmental law, or the disposal, discharge or
release or solid wastes, pollutants or hazardous substances, or exposure to any chemical
substances, noises or vibrations to the extent the same arise from the condition of the
premises or Seller's ownership or use of the premises;
e) neither the execution of this agreement, nor the closing of title, will violate
any environmental law.
33. ]~ndemnification. Seller will defend, indemnify, and hold harmless the
Purchaser against any and all damages, claims, losses, liabilities and expenses, including,
without limitation, reasonable legal, consulting, engineering fees and otl~er costs and
expenses which may arise out of 1) any inaccuracy or misrepresentation in any
representation or warranty made by Seller in this agreement~ 2) the breach or non-
performance of any covenants required by thi~-ag.r, eement to be performed by the Seller,
prior to the closing of title herein; or 3) any action, suit, claim, or proceeding seeking
money damages, injunctive relief, remedial action, or other remedy by reason of a violation
or non-compliance with any environmental law, or the disposal or release of solid wastes,
pollutants or hazardous substances, or exposure to any chemical substances, noises or
vibrations to the extent they arise from the ownership, operation, and/or condition of the
premises prior to the execution of the deed, This paragraph shall survive closing.
2
34. Public Disclosure Statement. The Seller, simultaneously with the, Execution and
delivery of this Agreement, has also delivered the required verified public disclosure
statement for filing with the Town Fiscal Officer. At the time of the closing, the Seller shall
submit a sworn statement that there have been no changes in interest since the date of
this Agreement. Any evidence of a conflict of interest or prohibited contractual relaUonshlp
shall require approval of the contract and sale by the Supreme Court.
35. Binding Effect. This Agreement shall apply to and bind the heirs, distributes,
legal representatives, successors and permitted assigns of the respective parties.
36. No Assignment. This contract may not be assigned by Seller without the
written consent of Purchaser.
37. Defects lin 7~tle. The Purchaser shall notify the Seller in advance of the closing
of any defects in title. Seller shall have a reasonable time to correct same, but nothing
herein shall be construed so as to require Seller to bring any action or proceeding or to
otherwise incur any expenses whatsoever to render the title Insurable or marketable.
However, Purchaser may, at its option, accept such title as the Seller can convey without
any abatement or diminution of the purchase price. Receipt of a complete title report, and
any updates thereof, shall be deemed notice to Seller.
38. Additional Subject To Provisions. In addition to the "subject to" provisions listed
in Paragraph 9 of the printed portion, the premises are also being conveyed subject to:
a) Any state of facts an accurate survey may show, provided same do not render
title unmarketable and uninsurable;
b) Covenants, restrictions and easements of record provided same are not violated
by any existing structures at the premises and present use thereof, and f0rther provided
that same do not render title unmarketable and uninsurable;
c) Variations between fences, curbs, retaining walls, hedges, eaves, if anY, and the
record lines provided same do not exceed twelve (:~2") inches, and provided purchaser's
title company does not raise any "rights of others", "out of possession" or similar
exceptions.
39. Agents. It understood and agreed by the parties hereto that their respective
3
attorneys can by letter agreement, change, amend, modify and/or add to the terms and
conditions of this contract, as agents of the respective parties and the respective parties
shall be bound by same as if they had subscribed their signatures or initiale~l said subject
matter.
40. Supplemental Seller's Representations. Supplementing ¶11 of the printed
portion hereof, the following Seller's representations are added:
a) Seller has no knowledge of, nor has Seller received any notice of, any litigation
pending or threatened affecting title to the within premises;
b) From the date of this Contract through the Closing, Seller shall not remove any
soil from the subject premises or make any material alterations to the premises.
41. Removal Of Defects By Seller. Supplementing the provisions of ¶21(b) of
the printed portion hereof and ¶37 of this rider and anything contained therein to the
contrary notwithstanding, Seller expressly a\g~e~es...to remove the following Defect
or
Defects: any mechanic's lien or mechanic's liens, regardless of amount, and any other
Defect or Defects which can be removed by payment of a liquidated sum or sums not
exceeding in the aggregate $3,500.00, It being expressly understood and agreed that
under no circumstances shall the Seller be obligated to commence any action or proceeding
in order to remove any such other Defect or Defects.
42. Inconsistency. In the event of any inconsistency between the terms and
provisions of this rider and the terms and provisions of the printed portion to which same is
annexed, the terms and provision of this Rider shall control and be binding.
43. Town Board Approval. This contract and the closing contemplated herein is
subject to approval by the Town Board following a public hearing and the approval of a
resolution authorizing the acquisition.
44. Closing Costs. Purchaser, Town of Southold, is responsible for all closing
costs related to this transaction, including but not limited to State Transfer Tax, Peconic
Bay Region Tax (if applicable), except for Sellers' attorney's fees and any other expenses
incurred by Sellers related to the delivery of title pursuant to the provisions of ¶21 and ¶4l.
45. Coastal Wetlands Grand DeclaraUon. The subject property encompasses
47.314 acres of the 9,950 acres of vacant land within the watershed of the Peconic Estuary
which is recommended for protection in the Peconic Estuary Program's Critical Land
Protection Strategy (CLPS). Given the amount and high value of the acreage which needs
to be protected, it is essential to the success of the Peconic Estuary Program that funds
from the U.S. Fish & Wildlife's Coastal Wetlands Grant program be made available to
supplement local government funding. The $1,000,000 Coastal Wetlands Grant awarded
through NYSDEC to Southold Town is essential to this acquisition. However, closing will
not be contingent upon receipt of these funds.
CHRTSTINE REESE,~SELLER
TOWN OF SOUTHOLD, PURCHASER
By~/OSHUA HORTON, SUPERVISOR
C:anne/town of southold purchase co~tracts/reese rider
5
SCHEDULE B
Grant Agreement
UNITED STATES New Yo~k ~'~. ,/_ ~
DEPA~RT/v~NT OF THE ~TE~IOR (~) ~8 NO::.
Division of Fe~ni Aid
G~ A~REEMENT
Coastal Wetlandl Conserva~on G~nt - Pec~lic Eatuary Pipe's Cove Acquisitt k. .) b.~, :~ ,
~ ~ Private State Federal Total
olS'lRIl~'n~: ~ Party % 8hare % S~re % G~t
~ Fl~
R~ ~ 0,0% 0.0% 0,~
( 16 U.6.C. 77Z-7~k)
~ife
R~t~n ~ 0.0% 0.0% 0,00
0S U.SC.
~r
(sp~):~ 2,~7,~.00 67.4% 0.0% 1,0~,0~.~
TOTAL COST 2,067,000.00 0,00 %000,00000 3,067.000.00
The funds f .r~lp this grant will I~e ~onire~tnd to i~e Town of Southold b.y the NYSDEC, ~(,~ ~<- J~ ~ c,''~'~
:'-..;~7//~,S-j~.- . ~t~,~;
E~P~ram I~me: ~ ...... Coasta~ Stat~ A~o~n:
~ ~ ~ Program ;n~e: __ ~ve _~ Deducli~ Fresh.ac: _~% Marine: ~
The ~te ag~ ~ exeou~ ~s g~nt in ~dan~ ~ ~ app~ia~ ~ a~e, the peatiest rul~ and regul~Uon~ of ~e
6~ of I~ ~edor ~ In ~e C~ of F~eml Regula~one, and ~he pmviou~lF appmv~ G~ P~sal to the extent
I'r'~lle; Direclor, Mgmt and Budget Services
eocomCme~ed by ~is Agreement.
I~i'ATE A~ (Name and Addn~m):
Ms. N~ ~c DiVot Ma~g~nt a~ 6u~t ~
N~ Y~ ~e De~e~ ~ En~men~l Co~gon
625 B~y
N~y, New Y~k 12233~2~
OTHER GRANT PROVISIONS: NY C-4-L & C-4-L-1
Effective: March 11, 2005. There will be no reimbursement for costs (other than the recognized
pro- agreement costs) h~arred prior to the effective dat~.
Pending clarification of policy on level of cost accounting, the required level of cost accounting
for this grant agreement will be at the grant agreement level,
~PECIAL GRANT CONDITIONS;
1, The State of New York and thc Town of Southold will ide, ntify in the deed, th~ Federal inte~st
in ~he title of the real property and will simultaneously record with the deed a Notice of Grant
Agreement wkich fmihcr de, scribes the purpose of thc acquisition and outlines the te~nns and
conditions of thc grant;
2. Thc State of New York and the Town of Southold will also record a Notice of Grant ii}~'"i
Agreement for the lands used as match in this grant. The State and To;~n wili ~lso insmict
Registrar of Dcexls to make note in the margin of the original match land deeds referencing the
Notice of Grant Agreement. ,~, :.
SCHEDULE C
Notice of Grant Agreement - Acquisition Parcel
The State of New York, Department of Environmental Conservation, and its successors and
assigns (hereinafter "Department") and the Town of Southold and its successors and assigns
(hereinafter "Town") acknowledges that the above described property is acquired in part with
federal funds received from the National Coastal Wetlands Grant Program administered by U.S.
Fish and Wildlife Service, Division of Federal Assistance, its successors and assigns (hereinafter
SERVICE) and that the property described is subject to all the terms and conditions of Grant
Agreement Number C - 4 - L -1 (hereinafter Grant Agreement) between the Service and the
Department. A copy of the Grant Agreement is kept on file at the offices of the Service, 300
Westgate Center Drive, Hadley, MA 01035-9589 and at the offices of the Department, 625
Broadway, Albany, New York 12233-5010.
The Department and Town acknowledges that the real property, which is the subject of this
Grant Agreement, is acquired for the approved purpose of long-term conservation of coastal wetland
ecosystems, thereby preserving and protecting in perpetuity these multiple, interrelated land features
which are critical to coastal fish, wildlife and their habitats. The Department and Town further
acknowledges that the property will be administered for the long-term conservation of said lands and
waters and the hydrology, water quality and fish and wildlife dependent thereon. The Department,
as the Grant Recipient, and the Town as Subgrantee hereby acknowledges that it is responsible for
exercising sufficient control over the property to ensure that the property is used and will continue
to be used for the approved purposes for which it is acquired and that the property may not be
conveyed or encumbered, in whole or in part, to any other party or for any other use, whatsoever,
without the written consent of the Regional Director of the U.S. Fish and Wildlife Service.
If the Town loses control of the property, control must be fully restored to the Town or the
property must be replaced, within three years, with like property of equal value at current market
prices and equal benefits. Further, if the property is used for activities which interfere with
accomplishment of approved purposes, the violating activities must cease and any resulting adverse
effects must be remedied.
If the Department and the Town determines the property is no longer needed or useful for its
original purpose and the Service concurs, the Town, may with the prior consent of the Service:,
either (1) acquire title to another parcel of real property of equal value that serves the same approved
purpose as the original property and to manage the newly acquired real property for same purposes
specified in the original Grant Agreement, or (2) repay the Service, in cash, the proportionate federal
share of funds invested in the original purchase price, or to repay the Service, in cash, the
proportionate federal share of the current fair market value of the property, or any portion thereof,
whichever is higher, or (3) as a last resort, transfer the subject property to the Service or to a third-
party designated or approved by the Service.
The Department, as Grant Recipient, and the Town as Subgrantee hereby confirms its
obligations and responsibilities with regards to the acquired property pursuant to terms and
conditions associated with Grant Agreement C - 4 - L - 1.
SCHEDULE D
Notice of Grant Agreement - Match Parcels
The State of New York, Department of Environmental Conservation, and its successors and
assigns (hereinafter DEPARTMENT) and the Town of Southold and its successors and assigns
(hereinafter TOWN) acknowledges that the property described in Liber , Page , at the Suffolk
County Clerk Records Office in , New York, is pledged as match for federal funds
received from the National Coastal Wetlands Grant Program administered by U.S. Fish and Wildlife
Service, Division of Federal Assistance, its successors and assigns (hereinafter SERVICE) and that
the property described is subject to all the terms and conditions of Grant Agreement Number C - 4 -
L -l(hereinafter Grant Agreement) between the Service and the Department. A copy of the Grant
Agreement is kept on file at the offices of the Service, 300 Westgate Center Drive, Hadley, MA
01035-9589 and at the offices of the Department, 625 Broadway, Albany, New York 12233-5010.
The Department and Town acknowledges that the mai property, which is pledged as match,
was acquired for the approved purpose of long-term conservation of coastal wetland ecosystems,
thereby preserving and protecting in perpetuity these multiple, interrelated land features which are
critical to coastal fish, wildlife and their habitats. The Department and Town further acknowledges
that the property will be administered for the long-term conservation of said lands and waters and
the hydrology, water quality and fish and wildlife dependent thereon. The Department, as the Grant
Recipient, and the Town as Subgrantee hereby acknowledges that it is responsible for exercising
sufficient control over the property to ensure that the property is used and will continue to be used
for the approved purposes for which it is acquired and that the property may not be conveyed or
encumbered, in whole or in part, to any other party or for any other use, whatsoever, without the
written consent of the Regional Director of the U.S. Fish and Wildlife Service.
If the Town loses control of the property, control must be fully restored to the Town or the
property must be replaced, within three years, with like property of equal value at current market
prices and equal benefits. Further, if the property is used for activities which interfere with
accomplishment of approved purposes, the violating activities must cease and any resulting adverse
effects must be remedied.
If the Department and the Town determines the property is no longer needed or useful for its
original purpose and the Service concurs, the Town, may with the prior consent of the Service:,
either (1) acquire title to another parcel of real property o fequal value that serves the same approved
purpose as the original property and to manage the newly acquired real property for same purposes
specified in the original Grant Agreement, or (2) repay the Service, in cash, the proportionate
matching share of the current fair market value of the property, or any portion thereof, whichever
is higher, or (3) as a last resort, transfer the subject property to the Service or to a third-party
designated or approved by the Service.
The Department, as Grant Recipient, and the Town as Subgrantee hereby confirms its
obligations and responsibilities with regards to the acquired property pursuant to terms and
conditions associated with Grant Agreement C - 4 - L - 1.
APPENDIX A
Standard Clauses for All New York State Contracts
The parties to the attached contract, license,
lease, amendment or other agreement of any kind
(hereinafter, "the contract" or "this contract")
agree to be bound by the following clauses which
are hereby made a part of the contract (the word
"Contractor" herein refers to any party other than
the State, whether a contractor, licenser, licensee,
lessor, lessee or any other party):
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 dudng the life of this contract
for the benefit of such employees as ara required
to be covered by the provisions of the Workers'
Compensation Law.
1. EXECUTORY CLAUSE. In accordance with
Section 41 of the State Finance Law, the State
shall have no liability under this contract to
the Contractor or to anyone else beyond funds
appropriated and available for this contract.
2. NON-ASSIGNMENT CLAUSE. In accordance
with Section 138 of the State Finance Law, this
contract may not be assigned by the Contractor or
its right, title or interest therein assigned,
transferred, conveyed, sublet or otherwise
disposed of without the previous consent, in
writing, of the State and any attempts to assign
the contract without the State's written consent
are null and void. The Contractor may, however,
assign its right to receive payment without the
State's prior wdtten consent unless this contract
concerns Certificates of Participation pursuant to
Article 5-A of the State Finance Law.
3. COMPTROLLER'S APPROVAL. in
accordance with Section 112 of the State Finance
Law (or, if this contract is with the State University
or City University of New York, Section 355 or
Section 6218 of the Education Law), if this
contract exceeds $15,000 (or the minimum
thresholds agreed to by the Office of the State
Comptroller for certain S.U.N.Y. and C.U.N.Y.
contracts), or if this is an amendment for any
amount to a contract which, as so amended,
exceeds said statutory amount, or if, by this
contract, the State ag rees to give something other
than money when the value or reasonably
estimated value of such consideration exceeds
$10,000, it shall not be valid, effective or binding
upon the State until it has been approved by the
State Comptroller and
filed in his office. Comptroller's approval of
contracts let by the Office of General Services is
raquirad when such contracts exceed $30,000
(State Finance Law Section 163.6.a).
5. NON-DISCRIMINATION REQUIREMENTS. To
the extent required by Article 15 of the Executive
Law (also known as the Human Rights Law) and
all other State and Federal statutory and
constitutional non-discrimination provisions, the
Contractor will not discriminate against any
employee or applicant for employment because of
race, creed, color, sex, national origin, sexual
orientation, age, disability,
genetic predisposition or carrier status, or marital
status. Furthermore, in accordance with Section
220-e of the Labor Law, if this is a contract for the
construction, alteration or repair of any public
building or public work or for the manufacture,
sale or distribution of materials, equipment or
supplies, and to the extent that this contract shall
be performed within the State of New York,
Contractor agrees that neither it not its
subcontractors shall, by reason of race, creed,
color, disability, sex, or national origin: (a)
discriminate in hiring against any New York State
citizen who is qualified and available to perform
the work; or (b) discriminate against or intimidate
any employee hired for the performance of work
under this contract, If this is a building service
contract as defined in Section 230 of the Labor
Law, then, 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 to perform
the work; or (b) discriminate against or intimidate
any employee hired for the performance of work
under this contract. Contractor is subject to fines
of $50.00 per person per day for any violation of
Section 220-e or Section 239 as well as possible
termination of this contract and forfeiture of all
moneys due hereunder for a second or
subsequent violation.
6. WAGE AND HOURS PROVISIONS. If this is a
public work contract covered by Article 8 of the
Labor Law or a building service contract covered
by Article 9 thereof, neither Contractor's
employees nor the employees of its
subcontractors may be required or permitted to
work more than the number of hours or days
stated in said statutes, except as otherwise
provided in the Labor Law and as set forth in
prevailing wage and supplement schedules
issued by the State Labor Department.
Furthermore, Contractor and its subcontractors
must pay at least the prevailing wage rate and
pay or provide the prevailing supplements,
including the premium rates for overtime pay, as
determined by the State Labor Department in
accordance with the Labor Law.
7. NON-COLLUSIVE BIDDING CERTIFICATION
E. In accordance with Section 139-d of the State
Finance Law, if this contract was awarded based
upon the submission of bids, Contractor warrants,
under penalty of perjury, that its bid was arrived at
independently and without collusion aimed at
restricting competition. Contractor further
warrants that, at the time Contractor submitted its
bid, an authorized and responsible person
executed and delivered to the State a
non-collusive bidding certification on Contractor's
behalf.
8. INTERNATIONAL BOYCO'I-F PROHIBITION.
In accordance with Section 220-f of the Labor
Law and Section 139-h of the State Finance Law,
if this contract exceeds $5,000, the Contractor
agrees, as a matedal condition of the contract,
that neither the Contractor nor any substantially
owned or affiliated person, firm, partnership or
corporation has participated, is participating, or
shall participate in an international boycott in
violation of the federal Export Administration Act
of 1979 (50 USC App. Sections 2401 et seq.) or
regulations thereunder. If such Contractor, or any
of the aforesaid affiliates of Contractor, is
convicted or is otherwise found to have violated
said laws or regulations upon the final
determination of the United States Commerce
Department or any other appropriate agency of
the United States subsequent to the contract's
execution, such contract, amendment or
modification thereto
shall be rendered forfeit and void. The Contractor
shall so notify the State Comptroller within five (5)
business days of such conviction, determination
or disposition of appeal (2NYCRR 105.4).
9~ SET-OFF RIGHTS. The State shall have all of
its common law, equitable and statutory rights of
set-off. These rights shall include, but not be
limited to, the State's option to withhold for the
purposes of setoff any moneys due to the
Contractor under this contract up to any amounts
due and owing to the State with regard to this
contract, any other contract with any State
department or agency, including any contract for
a term commencing pdor to the term of this
contract, plus any amounts due and owing to the
State for any other reason including, without
limitation, tax delinquencies, fee delinquencies or
monetary penalties relative thereto. The State
shall exercise its set-off dghts in accordance with
normal State practices including, in cases of
set-off pursuant to an audit, the finalization of
such audit by the State agency, its
representatives, or the State Comptroller.
10. RECORDS. The Contractor shall establish
and maintain complete and accurate books,
records, documents, accounts and otherevidence
directly pertinent to performance under this
contract (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 agencies
involved in this contract, shall have access to the
Records dudng normal business hours at an
office of the Contractor within the State of New
York or, if no such office is ava ila ble, at a mutually
agreeable and reasonable venue within the State,
for the term specified above for the purposes of
inspection, auditing and copying. The State shall
take reasonable steps to protect from public
disclosure any of the Records which are exempt
from disclosure under Section 87 of the Public
Officers Law (the "Statute") provided that: (i) the
Contractor shall timely inform an appropriate
State official, in wdting, that said records should
not be disclosed; and (ii) said records shall be
sufficiently identified; and (iii) designation of said
records as exempt under the Statute is
reasonable. Nothing contained herein shall
diminish, or in any way adversely affect, the
State's dght to discovery in
any pending or future litigation
11. IDENTIFYING INFORMATION AND
PRIVACY NOTIFICATION. (a) FEDERAL
EMPLOYER IDENTIFICATION NUMBER and/or
FEDERAL SOCIAL SECURITY NUMBER. All
invoices or New York State standard vouchers
submitted for payment for the sale of goods or
services or the lease of real or personal property
to a New York State agency must include the
payee's identification number, i.e., the seller's or
lessor's identification number. The number is
either the payee's Federal employer identification
number or Federal social secudty number, or both
such numbers when the payee has both such
numbers. Failure to include this number or
numbers may delay payment. Where the payee
does not have such number or numbers, the
payee, on its invoice or New York State standard
voucher, must give the reason or reasons why the
payee does not have such number or numbers.
(b) PRIVACY NOTIFICATION. (1) The authority to
request the above personal information from a
seller of goods or services or a lessor of real or
personal property, and the authority to maintain
such information, is found in Section 5 of the
State Tax Law. Disclosure of this information by
the seller or lessor to the State is mandatory. The
principal purpose for which the information is
collected is to enable the State to identify
individuals, businesses and others who have
been delinquent in filing tax returns or may have
understated their tax liabilities and to generally
identify persons affected by the taxes
administered by the Commissioner of Taxation
and Finance. The information will be used for tax
administration purposes and for any other
purpose authorized by law. (2) The personal
information is requested by the purchasing unit of
the agency contracting to purchase the goods or
services or lease the real or personal property
covered by this contract or lease. The information
is maintained in New York State's Central
Accounting System by the Director of Accounting
Operations, Office of the State Comptroller,
AESOB, Albany, New York 12236.
12. EQUAL EMPLOYMENT OPPORTUNITIES
FOR MINORITIES AND WOMEN. In accordance
with Section 312 of the Executive Law, if this
contract is: (i) a written agreement or purchase
order instrument, providing for a total expenditure
in excess of $25,000.00, whereby a contracting
agency is committed to expend or does expend
funds in return for labor, services, supplies,
equipment, materials or any combination of the
foregoing, to be performed for, or randerad or
furnished to the contracting agency; or (ii) a
wdtten agreement in excess of $100,000.00
whereby a contracting agency is committed to
expend or does expend funds for the acquisition,
construction, demolition, replacement, major
repair or renovation of real property and
improvements thereon; or (iii) a written agreement
in excess of $100,000.00 whereby the owner of a
State assisted housing project is committed to
expend or does expend funds for the acquisition,
construction, demolition, replacement, major
repair or renovation of real property and
improvements thereon for such project, then: (a)
The Contractor will not discriminate against
employees or applicants foremployment because
of race, creed, color, national origin,
sex, age, disability or marital status, and will
undertake or continue existing programs of
affirmative action to ensure that minority group
members and women ara afforded equal
employment opportunities without discrimination.
Affirmative action shall mean recruitment,
employment, job assignment, promotion,
upgradings, demotion, transfer, layoff, or
termination and rates of pay or other forms of
compensation; (b) at the request of the
contracting agency, the Contractor shall request
each employment agency, labor union, or
authorized representative of workers with which it
has a collective bargaining or other agreement or
understanding, to furnish a written statement that
such employment agency, labor union or
representative will not discriminate on the basis of
race, creed, color, national origin, sex, age,
disability or marital status and that such union or
representative will affirmatively cooperate in the
implementation of the contractor's obligations
herein; and (c) the Contractor shall state, in all
solicitations or advertisements for employees,
that, in the performance of the State contract, all
qualified applicants will be afforded equal
employment opportunities without discrimination
because of race, creed, color, national origin, sex,
age, disability or marital status. Contractor will
include the previsions of "a", "b", and "c" above,
in every subcontract over $25,000.00 for the
construction, demolition, replacement, major
repair, renovation, planning or design of real
property and improvements thereon (the '~/Vork")
except where the Work is for the beneficial use of
the Contractor. Section 312 does not
apply to: (i) work, goods or services unrelated to
this contract; or (ii) employment outside New York
State; or (iii) banking services, insurance policies
or the sale of securities. The State shall consider
compliance by a contractor or subcontractor with
the requirements of any federal law concerning
equal employment opportunity which effectuates
the purpose of this section. The contracting
agency shall
determine whether the imposition of the
requirements of the provisions hereof duplicate or
conflic{ with any such federal law and if such
duplication or conflict exists, the contracting
agency shall waive the
applicability of Section 312 to the extent of such
duplication or conflict. Contractor will comply with
all duly promulgated and lawful rules and
regulations of the Governor's Office of Minority
and Women's Business Development pertaining
hereto.
13. CONFLICTING TERMS. In the event of a
conflict between the terms of the contract
(including any and all attachments thereto and
amendments thereof) and the terms of this
Appendix A, the terms of this Appendix A shall
control.
14. GOVERNING LAW. This contract shall be
governed by the laws of the State of New York
except where the Ferieral supremacy clause
requires otherwise.
15. LATE PAYMENT. Timeliness of payment and
any interest to be paid to Contractor for late
payment shall be governed by Article 11-A of the
State Finance Law to the extent required by law.
16. NO ARBITRATION. Disputes involving this
contract, including the breach or alleged breach
thereof, may not be submitted to binding
arbitration (except where statutorily authorized),
but must, instead, be heard in a court of
competant jurisdiction of the State of New York.
17. SERVICE OF PROCESS. In addition to the
methods of service allowed by the State Civil
Practice Law & Rules ("CPLR"), Contractor
hereby consents to service of precess upon it by
registered or certified mail, return receipt
requested. Service hereunder shall be complete
upon Contractor's actual receipt of process or
upon the State's receipt of the return thereof by
the United States Postal Service as refused or
undeliverable. Contractor must promptly notify the
State, in writing, of each and every change of
address to which service of process can be made.
Service by the State to the last known address
shall be sufficient. Contractor will have thirty (30)
calendar days afferservice 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 previsions of State Finance
Law °165. (Use of Tropical Hardwoods) which
prohibits purchase and use of tropical hardwoods,
unless specifically exempted, by the State or any
governmental agency or political subdivision or
public benefit corporation. Qualification for an
exemption under this law will be the responsibility
of the contractor to establish to meet with the
approval of the State. In addition, when any
portion of this contract involving the use of woods,
whether supply or installation, is to be performed
by any subcontractor, the prime Contractor will
indicate and certify in the submitted bid proposal
that the subcontractor has been informed and is
in compliance with specifications and provisions
regarding use of tropical hardwoods as detailed in
~'165 State Finance Law. Any such use
must meet with the approval of the State;
otherwise, the bid may not be considered
responsive. Under bidder certifications, proof of
qualification for exemption will be the
responsibility of the Contractor to meet with the
approval of the State.
19. MACBRIDE FAIR EMPLOYMENT
PRINCIPLES. In accordance with the MacBride
Fair Employment Principles (Chapter 807 of the
Laws of 1992), the Contractor hereby stipulates
that the Contractor either (a) has no business
operations in Northern Ireland, or (b) shall take
lawful steps in good faith to conduct any business
operations in Northern Ireland in accordance with
the MacBride Fair Employment Principles (as
described in Section 165 of the New York State
Finance Law), and shall permit independent
monitoring of compliance with such principles.
20. OMNIBUS PROCUREMENT ACT OF 1992.
It is the policy of New York State to maximize
opportunities for the participation of New York
State business enterprises, including minority and
women-owned business enterprises as bidders,
subcontractors and suppliers on its procurement
contracts. Information on the availability of New
York State subcontractors and suppliers is
available from:
NYS Department of Economic Development
Division for Small Business
30 South Pearl St - 7th Floor
Albany, New York 12245
Telephone: 518-292-5220
A directory of certified minodty and women-owned
business enterprises
is available from:
NYS Department of Economic Development
Division of Minodty and Women's Business
Development
30 South Pearl St - 2nd Floor
Albany, New York 12245
http:/N/ww, empire.state.ny.us
The Omnibus Procurement Act of 1992 requires
that by signing this bid proposal or contract, as
applicable, Contractors certify that whenever the
total bid amount is greater than $1 million: (a) The
Contractor has made reasonable efforts to
encourage the participation of New York State
Business Enterprises as suppliers and
subcontractors, including certified minodty and
women-owned business enterprises, on this
project, and has retained the documentation of
these efforts to be provided upon request to the
State; (b) The Contractor has complied with the
Federal Equal Opportunity 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 employment
opportunities on this project through listing any
such positions with the Job Servico Division of the
New York State Department of Labor, or providing
such notification in such manner as is consistent
with existing collective bargaining contracts or
agreements. The Contractor agrees to document
these efforts and to provide said documentation to
the State upon request; and (d) The Contractor
acknowledges notice that the State may seek to
obtain offset credits from foreign countries as a
result of this contract and agrees to cooperate
with the State in these efforts.
21. RECIPROCITY AND SANCTIONS
PROVISIONS. Bidders are hereby notified that if
their principal place of business is located in a
country, nation, province, state or political
subdivision that penalizes New York State
vendors, and if the goods or services they offer
will be substantially produced or performed
outside New York State, the Omnibus
Procurement Act 1994 and 2000 amendments
(Chapter 684 and Chapter 383, respectively)
require that they be denied contracts
which they would otherwise obtain. NOTE: As of
May 15, 2002, the list of discriminatory
jurisdictions subject to this provision includes the
states of South Carolina, Alaska, West Virginia,
Wyoming, Louisiana and Hawaii. Contact NYS
Department of Economic Development for a
current list of jurisdictions subject to this provision.
22. PURCHASES OF APPAREL. In accordance
with State Finance Law 162 (4-a), the State shall
not purchase any apparel from any vendor unable
or unwilling to certify that: (i) such apparel was
manufactured in compliance with all applicable
labor and occupational safety laws, including, but
not limited to, child labor laws, wage and hours
laws and workplace safety laws, and (ii) vendor
will supply, with its bid (or, if not a bid situation,
prior to or at the time of signing a contract with the
State), if known, the names and addresses of
each subcontractor and a list of all manufacturing
plants to be utilized by the bidder.
May, 2003
APPENDIX B
Standard Clauses for All New York State Department
of Environmental Conservation Contracts
The parties Io the attached contract, license,
lease, gram, amendment or olher agreement of any kind
(hereinafter "lhe contract" or "this contract") agree to be
bound by the following clauses which are hereby made a
part of the contract. The word "Contractor" herein refers
to any party to the contract, other than the New York State
Department of Environmental Conservation (hereinafter
"Department").
I. Postponement, suspension, abandonment or
termination by the Department: The Department shall
have the right to postpone, suspend, abandon or terminate
this contract, and such actions shall in no event be deemed
a breach of contract. ]n the event of any termination,
postponement, delay, suspension or abandonment, the
Contractor shall immediately stop work. take steps to
incur no additional obligations, and to limit further
expenditures. Within 15 days of receipt of notice, the
Contractor shall deliver to the Department all data,
reports, plans, or other documentation related to the
performance of this contract, including but not limited to
source codes and specifications, guarantees, warranties,
as-built plans and shop drawings. ]n any of these events,
the Department shall make selllement with the Contractor
upon an equitable basis as determined by the Department
which shall fix the value of the work which was
performed by the Contractor prior to the postponement,
suspension, abandonment or termination of this contract.
This clause shall not apply to this contract if the contract
contains other provisions applicable to postponement,
suspension or termination of the contract.
11. Indemnification and Holdharmless The
Contraclor agrees that it will indemnify and save harmless
the Department and the State of New York from and
against all losses from claims, demands, payments, suits,
actions, recoveries and judgments of every nature and
description brought or recovered against it by reason of
any omission or tortious act of the Contractor, its agents,
employees, suppliers or subcontractors in the performance
of this conlract. The Department and the State of New
York may retain such monies from the amount due
Contractor as may be necessary to satisfy any claim for
damages, costs and the like, which is asserted against the
Department and/or the State of New York.
111. Conflict of Interest (a) Oreanizational Conflict
of Interest. To the best of the Contractor's knowledge and
belief, the Contractor warrants that there are no relevant
facts or circumstances which could give rise to an
organizational conflict of interest, as herein defined, or
that the Contractor has disclosed all such relevant
information to the Department.
(1) An organizational conflict of interest exists when the
nature of the work to be performed under this contract
may, without some restriction on future activities, impair
or appear to impair the Contractor's objectivity in
performing the work for the Department.
(2) The Contractor agrees that if an actual, or potential
organizational conflict of interest is discovered at any
time after award, whether before or during performance,
the Contractor will immediately make a full disclosure in
writing to the Department. This disclosure shall include
a description o factions which the Contractor has taken or
proposes to take, after consultation with the Department,
to avoid, mitigate, or minimize the actual or potential
conflict.
(3) To the extent that the work under this contract
requires access to personal, proprietary or confidential
business or financial data of persons or other companies,
and as long as such data remains proprietary or
confidential, the Contractor shall protect such data from
unauthorized use and disclosure and agrees not to use it
to compete with such companies.
(b) Personal Conflict of Interest: The following
provisions with regard to management or professional
level employee personnel performing under this contract
shall apply until the earlier of the termination date of the
affected employee(s) or the duration of the contract.
(1) A personal conflict of interest is defined as a
relationship of an employee, subcontractor employee, or
consultant with an entity that may impair or appear to
impair the objectivity of the employee, subcontractor
employee, or consultant in performing the contract work.
The Contractor agrees to notify the Department
immediately of any actual, or potential personal conflict
of interest with regard to any such person working on or
having access to information regarding this contract, as
soon as Contractor becomes aware of such conflict. The
Department will notify the Contractor of the appropriate
action to be taken.
(2) The Contractor agrees to advise all management
or professional level employees involved in the work of
this contract, that they must report any personal conflicts
App. B 4/17/00 Page 1
of interest to the Contractor. Fhe Contractor must then
advise the Department which will advise the Contractor of
the appropriate action to be taken.
(3) Unless waived by the Department, the
Contractor shall certify annually that. to the best of the
Contractor's knowledge and belief, all actual, apparent or
potential conflicts of interest, both personal and
organizational, as defined herein, have been reported to
the Department. Such certification musl be signed by a
senior executive of the Contractor and submiiled in
accordance with instructions provided by the Department.
Along with the annual certification, the Contractor shall
also submit an update of any changes in any conflict of
interest plan submitted with its proposal for this contract.
The initial certification shall cover the one-year period
from the date of contract award, and all subsequenl
certifications shall cover successive annual periods
thereafter. The certification is to be submitted no later
than 45 days after the close of the previous certification
period covered.
(4) In performing this contract, the Contractor
recognizes that its employees may have access to data.
either provided by the Department or first generated
durJt~g contract performance, of a sensitive nature which
should not be released without Department approval. If
this situation occurs, the Contractor agrees to obtain
confidentiality agreements fi.om all affected employees
working on requirements under this contract including
subcontractors and consultants. Such agreements shall
contain provisions which stipulate that each employee
agrees not to disclose, either in whole or in part, to any
entity external to the Department, Department of Health
or the New York State Department of Law, any
information or data provided by the Department or first
generated by the Contractor under this contract, any site-
specific cost information, or any enforcement strategy
without first obtaining the written permission of the
Department. If a Contractor, through an employee or
otherwise, is subpoenaed to testify or produce documents.
which could result in such disclosure, the Contractor must
provide immediate advance notification to the Department
so that the Department can authorize such disclosure or
have the opportunity to take action to prevent such
disclosure. Such agreements shall be effective for the life
of the contract and for a period of five (5) years after
completion of the contract.
(c) Remedies - The Depart~nent may lerminate this
contract in whole or in part, if it deems such termination
necessary to avoid an organizational or personal conflict
of interest, or an unauthorized disclosure of information.
If the Contractor fails to make required disclosures or
misrepresents relevant information to the Department, the
Department may terminate the contract, or pursue such
other remedies as may be permitted by the terms of
Clause I of this Appendix or other applicable provisions
of this contract regarding termination.
(d) The Contractor will be ineligible to make a proposal
or bid on a contract for which the Contractor has
developed the statement of work or the solicitation
package
(e) The Contractor agrees to insert in each
subcontract or 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
authorized by the Department.
If this is a contract for work related to action at au
inactive hazardous waste site, the following
paragraph shall apply to those Contractors whose
work requires the application of professional
judgment: It does not apply to construction contracts.
(O Due to the scope and nature of this contract, the
Contractor shall observe the following restrictions on
future hazardous waste site contracting for the duration of
the contract.
(1) The Contractor, during the life of the work
assignment and for a period of three (3) years after the
completion of the work assignment, agrees not to enter
into a contract with or to represent any party with respect
to any work relating to remedial activities or work
pertaining to a site where the Contractor previously
performed work for the Department under this contract
without the prior written approval of the Department.
(2) The Contractor agrees in advance that if any
bids/proposals are submitted for any work for a third
party that would require written approval of the
Department prior to entering into a contract because of
the restrictions of this clause, then the bids/proposals are
submitted at the Contractor's own risk, and no claim shall
be made against the Department to recover bid/proposal
costs as a direct cost whether the request for authorization
to enter into the contract is denied or approved.
IV. Requests for Payment All requests for
payment by the Contractor must be submitled on forms
supplied and approved by the Department. Each payment
request must contain such items of information and
supporting documentation as are required by the
Department, and shall be all-inclusive for the period of
time covered by the payment request.
App. B 4/17/00 Page 2
V. Compliance with Federal
requirements To the extent that federal funds are
provided to the Contractor or used in paying the
Contractor under this contract, the Contractor agrees that
it will comply with all applicable federal laws and
regulations, including but not limited to those laws and
regulations under which the Federal funds were
authorized. The Contractor further agrees to insert in any
subcontract hereunder, provisions which shall conform
substantially to the language of this clause.
VI. Independent Contractor The Contractor shall
have the status of an independent contractor.
Accordingly, the Contractor agrees that it will conduct
itself in a manner consistent with such status, and that it
will neither hold itself out as, nor claim to be, an officer
or employee of the Department by reason of this contract.
It further agrees that it will not make any claim, demand
or application to the Department for any right or privilege
applicable to an officer or employee of the Department
including but not limited to worker's compensation
coverage, unemployment insurance benefits, social
security coverage, or retirement membership or credit.
VII. Article 15-A Requirements The terms
contained in this clause shall have the definitions as given
in, and shall be construed according to the intent of
Article 15-A of the Executive Law, 5 NYCRR Part 140,
et. seq., Article 52 of the Environmental Conservation
Law and 6 NYCRR Part 615, et. seq., as applicable, and
any goals established by this clause are subject to the
intent of such laws and regulations.
(a) If the maximum contract price herein equals or
exceeds $25,000, and this contract is for labor, services,
supplies, equipment, or materials; or
(b) If the maximum contract price herein equals or
exceeds $100,000 and this contract is for the acquisition,
construction, demolition, replacement, major repair or
renovation of real property and improvements thereon;
then
(c) The affmmative action provisions and equal
employment opportunity provisions contained in this
paragraph and paragraphs (d) and (e) of this clause shall
be applicable within the limitations established by
Executive Law §§312 and 313 and the applicable
regulations.
(1) The Contractor is required to make good faith efforts
to subcontract at least N/A of the dollar value of this
contract to Minority Owned Business Enterprises
(MBEs) and at least N/A of such value to Women Owned
Business Enterprises (WBEs).
(2) The Contractor is required to make good faith efforts
to employ or contractually require any Subcontractor with
whom it contracts to make good faith efforts to employ
minority group members for at least N/A of, and women
for at least N/A of, the workforce hours required to
perform the work under this contract.
(3) The Contractor is required to make good faith efforts
to solicit the meaningful participation by enterprises
identified in the NYS Directory of Certified Businesses
provided by:
Empire State Development Corp.
Div. Minority & Women's Business Development
30 South Pearl Street
Albany, New York 12245
Phone: (518) 292-5250
Fax: (518) 292~5803
and
Empire State Development Corp.
633 Third Avenue
New York, NY 10017
Phone: (212) 803-2414
Fax: (2 t2) 803-3223
internet: www.empire.state.ny.us\esd.htm
(d) The Contractor agrees to include the provisions set
forth in paragraphs (a), (b) and
(c) above and paragraphs (a), (b), and (c) of clause t2
of Appendix A in every subcontract in such a manner
that the provisions will be binding upon each
Subcontractor as to work under such subcontract. For
the purpose of this paragraph, a "subcontract" shall
mean an agreement providing for a total expenditure in
excess of $25,000 for the construction, demolition,
replacement, major repair, renovation, planning or
design of real property and improvements thereon in
which a portion of the Contractor's obligation under a
State contract is undertaken or assumed.
(e) The Contractor is required to make good faith
efforts to utilize the MBE/WBEs identified in the
utilization plan to the extent indicated in such plan, and
otherwise to implement it according to its teru~s. The
Contractor is requested to report on such
implementation periodically as provided by the
contract, or annually, whichever is more frequent.
VIII. Compliance with applicable laws
(a) Prior to the commencement of any work under this
contract, the Contractor is required to meet all legal
requirements necessary in the performance of the
contract. This includes but is not limited to compliance
with all applicable federal, state and local laws and
regulations promulgated thereunder. It is the
App. B 4/17/00 Page 3
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 Depamnent
signs this contract in reliance upon this representation.
(b) During the term of this contract, and any extensions
thereof, the Contractor must remain in compliance with
said laws. A failure to notify the Department of
noncompliance of which the Contractor was or should
have been aware, may be considered a material breach
of this contract.
IX. Dispute Resolution The parties agree to
the following steps, or as many as are necessary to
resolve disputes between the Department and the
Contractor.
(a) The Contractor specifically agrees to submit, in the
first instance, any dispute relating to this contract to the
designated individual, who shall render a written
decision and furnish a copy thereof to the Contractor.
(1) The Contractor must request such decision in
writing no more than fifteen days after it knew or should
have known of the facts which are the basis of the
dispute.
(2) The decision of the designated individual shall be
the final agency determination, unless the Contractor
files a written appeal of that decision with the
designated appeal individual ("DAI") within twenty
days of receipt of that decision.
(b) Upon receipt of the written appeal, the DAI, wilt
review the record and decision. Following divisional
procedures in effect at that time, the DAI will take one
of the following actions, with written notice to the
Contractor.
(1) Remand the matter to the program staff for
further negotiation or information Wit is determined
that the mailer is not ripe for review; or
(2) Determine that there is no need for further
action, and that the determination of the designated
individual is confirmed; or
(3) Make a determination on the record as it
exists.
(c) The decision of the DAI shall be the final agency
decision unless the Contractor files a written appeal of
that decision with the Chair of the Contract Review
Committee ("CRC") within twenty days of receipt of
that decision.
The designated individual to hear disputes is:
John Keating, Superintendent
NYS Department of Environmental Conservation
Bureau of Real Property
625 Broadway, yh Floor
AIbnay, New York 12233-4256
(518) 402-9442
The designated appeal individual to review decisions
is:
S. McCrea Burnham, Special Assistant
NYS Department of Environmental Conservation
Division of Lands and Forests
625 Broadway, 5~h Floor
Albany New York 12233-4250
(518) 402-9205
The Chair of the Contract Review Committee is:
Department of Environmental Conservation
Nancy W. Lussier, Chair
Contract Review Commiilee
625 Broadway, Iffh Floor
Albany, NY 12233-5010
Telephone: (5 t 8) 402-9228
(d) Upon receipt of the written appeal, the Chair of
the CRC, in consultation with the members of the CRC
and the Office of General Counsel, will take one of the
following actions, or a combination thereof, with
written notice to the Contractor.
(1) Remand the matter to program staff for
additional fact finding,negotiation, or other appropriate
action; or
(2) Adopt the decision of the DAI; or
(3) Consider the mailer for review by the CRC in
accordance with its procedures.
(e) Following a decision to proceed pursuant to (d) 3,
above, the Chair of the CRC shall convene a
proceeding in accordance with the CRC's established
contract dispute resolution guidelines. The proceeding
will provide the Contractor with an opportunity to be
heard.
(f) Following a decision pursuant to (d) 2 or (d) 3, the
CRC shall make a wriilen recommendation to the
Assistant Commissioner for Administration who shall
render the final agency determination.
(g) At any time during the dispute resolution process,
and upon mutual agreement of the parties, the Office of
Hearings and Mediation Services (OHMS) may be
App. B 4/17/00 · Page 4
requested to provide mediation services or other
appropriate means to assist in resolving the dispute.
Any findings or recommendations made by the OHMS
will not be binding on either party.
(h) Final agency determinations shall be subject to
review only pursuant to Article 78 of the Civil Practice
Law and Rules.
(i) Pending final determination of a dispute hereunder,
the Contractor shall proceed diligently with the
performance of the Contract in accordance with the
decision of the designated individual. Nothing in this
Contract shall he construed as making final the decision
of any administrative officer upon a question of law.
0) (1) Notwithstanding the foregoing, at the option of
the Contractor, the following shall be subject to review
by the CRC: Disputes arising under Article 15-A of the
Executive Law (Minority and Women Owned Business
participation), the Department's determination with
respect to the adequacy of the Contractor's Utilization
Plan, or the Contractor's showing of good faith efforts
to comply therewith. A request for a review before the
CRC should be made, in writing, within twenty days of
receipt of the Department's determination.
(2) The CRC will promptly convene a review in
accordance with Article 15-A of the Executive Law and
the regulations promulgated thereunder.
X. Labor Law Provisions
(a) When applicable, the Contractor shall post, in a
location designated by the D~partmant, a copy of the
New York State Department of Labor schedules of
prevailing wages and supplements for this project, a
copy of all re-determinations of such schedules for the
project, the Workers' Compensation Law Section 51
notice, all other notices required by law to be posted at
the site, the Department of Labor notice that this project
is a public work project on .which each worker is
entitled to receive the prevailing wages and
supplements for their occupation, and all other notices
which the Department directs the Contractor to post.
The Contractor shall provide a surface for such notices
which is satisfactory to the Department. The Contractor
shall maintain such notices in a legible manner and shall
replace any notice or schedule which is damaged,
defaced, illegible or removed for any reason.
Contractor shall post such notices before commencing
any work on the site and shall maintain such notices
until all work on the site is complete.
(b) When appropriate, contractor shall distribute to
each worker for this Contract a notice, in a form
provided by the Department, that this project is a public
work project on which each worker is entitled to
receive the prevailing wage and supplements for the
occupation at which he or she is working. Worker
includes employees of Contractor and all
Subcontractors and all employees of suppliers entering
the site. Such notice shall be distributed to each worker
before they start performing any work of this contract.
At the time of distribution, Contractor shall have each
worker sign a statement, in a form provided by the
Department, certifying that the worker has received the
notice required by this section, which signed statement
shall be maintained with the payroll records required by
the following paragraph (c).
(c) Contractor shall maintain on the site the original
certified payrolls or certified transcripts thereof which
Contractor and all of its Subcontractors are required to
maintain pursuant to the New York Labor Law Section
220. Contractor shall maintain with the payrolls or
transcripts thereof, the statements signed by each
worker pursuant to paragraph (b).
(d) Within thirty days of issuance of the first payroll,
and every thirty days thereafter, the Contractor and
every subcontractor must submit a transcript of the
original payroll to the Department, which transcript
must be subscribed and affirmed as true under penalty
of perjury.
XI. Offset In accordance with State Law, the
Department has the authority to administratively offset
any monies due it fi.om the Contractor, fi.om payments
due to the Contractor under this contract. The
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.
XlI. Tax Exemption Pursuant to Tax Law
Section 1116, the State is exempt from sales and use
taxes. A standard state voucher is sufficient evidence
thereofi 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
Department becomes involved in litigation related to
the subject mailer of this contract, the Contractor
agrees to provide background support and other
litigation support, including but not limited to
depositions, appearances, and testimony. Compensation
will be negotiated and based on rates established in the
contract, or as may otherwise be provided in the
contract.
App. B 4/17/00 Page 5
XIV. Equipment Any equipment purchased
with funds provided under this contract, shall remain
the propemd of the Department, unless otherwise
provided in the contract. The Contractor shall be liable
for all costs for maintaining the property in good, usable
condition. It shall be returned to the Department upon
completion of the contract, in such condition, unless the
Department elects to sell the equipment to the
Contractor, upon mutually agreeable terms.
XV. Inventions or Discoveries Any
invention or discovery first made in performance of this
Contract shall be the property of the Department, unless
otherwise provided in the contract. The Contractor
agrees to provide the Department with any and all
materials related to this property. At the Department's
option, the Contractor may be granted a non-exclusive
license.
XVI. Patent and Copyright Protection
If any patented or copyrighted material is involved in or
results from the performance'of this Contract, this
Article shall apply.
(a) The Contractor shall, at its expense, defend any suit
instituted against the Department and indemnify the
Department against any award of damages and costs
made against the Department by a final judgment of a
court of last resort based on the claim that any of the
products, services or consumable supplies furnished by
the Contractor under this Contract infringes any patent,
copyright or other proprieta~ right; provided the
Department gives the Contractor:
(1) 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 infornmtion, 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 shall keep the Department fully informed
concerning the progress of the litigation.
(b) If the use of any item(s) or parts thereof is held to
infringe a patent or copyright and its use is enjoined, or
Contractor believes it will be enjoined, the Contractor
shall have the right, at its election and expense to take
action in the following order of precedence:
(1) procure for the Department the right to continue
using the same item or parts thereof;
(2) modify the same so that it becomes non-infringing
and of at least the same quality and performance;
(3) replace the item(s) or parts thereof with
noninfringing items of at least the same quality and
performance:
(4) if none of the above remedies are available,
discontinue its use and eliminate any future charges or
royalties pertaining thereto. The Contractor will buy
back the infringing product(s) at the State's book value,
or in the event of a lease, the parties shall terminate the
lease. If discontinuation or elimination results in the
Contractor not being able to perform the Contract, the
Contract shall be terminated.
(c) In the event that an action at law or in equity is
commenced against the Department arising out of a
claim that the DeparOnent's use of any item or material
pursuant to or resulting from this Contract infringes any
patent, copyright or proprietary right, and such action is
forwarded by the Department to the Contractor for
defense and indemnification pursuant to this Article,
the Department shall copy all pleadings and documents
forwarded to the Contractor together with the
forwarding correspondence and a copy of this Contract
to the Office of the Attorney General of the State of
New York. If upon receipt of such request for defense,
or at any time thereafter, the Contractor is of the
opinion that the allegations in such action, in whole or
in part, are not covered by the indemnification set forth
in this Article, the Contractor shall inunediately notify
the Department and the Office of the Attorney General
of the State of New York in writing and shall specify to
what extent the Contractor believes it is and is not
obligated to defend and indemnify under the terms and
conditions of this Contract. The Contractor shall in
such event protect the interests of the Department and
State of New York and secure a continuance to permit
the State of New York to appear and defend its interests
in cooperation with Contractor as is appropriate,
including any jurisdictional defenses which the
Department and State shall have.
(d) The Contractor shall, however, have no liability to
the Department under this Article if any infringement is
based upon or arises out of: (1) compliance with
designs, plans, or specifications furnished by or on
behalf of the Department as to the items; (2) alterations
of the items by the Department; (3) failure of the
Department to use updated items provided by the
Contractor for avoiding infringement; (4) use of items
in combination with apparatus or devices not delivered
by the Contractor; (5) use of items in a manner for
which the same were neither designed nor
contemplated; or (6) a patent or copyright in which the
App. B 4/17/00 Page 6
Department or any affiliate or subsidiary of the
Department has any direct or indirect interest by license
or otherwise.
(e) The foregoing states the Contractor's entire liability
for, or resulting from, patent or copyright infringement
or claim thereof.
XVI1. Force Majeure Theterm Force Majeure
shall include acts of God, work stoppages due to labor
disputes or strikes, fires, explosions, epidemics, riots,
war rebellion, sabotage or the like. Ifa failure of or
delay in performance by either party results from the
occurrence ora Force Majeure event, the delay shall be
excused and the time for performance extended by a
period equivalent to the time lost because of the Force
majeure event~ if and to the extent that:
(a) The delay or failure was beyond the control of the
party affected and not due to its fault or negligence; and
(b) The delay or failure was not extended because of the
affected party's failure to use all reasonable diligence to
overcome the obstacle or to resume performance
immediately after such obstacle was overcome; and
(c) The affected party provides notice within (5) days of
the onset of the event, that it is invoking the protection
of this provision.
XVIll. Freedom of Information Requests
The Contractor agrees to provide the Department with
any records which must be released in order to comply
with a request pursuant to the Freedom oflnfdrmation
Law. The Department will provide the contractor with
an opportunity to identify mffterial which may be
protected from release and to support its position.
XIX. Precedence In the event of a conflict
between the terms of this Appendix 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 B shall control. In the
event ora 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