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HomeMy WebLinkAboutElizabeth Airport . . . , , NEW YORK STATE DEPARTMENT OF TRANSPORTATION AVIATION CAPITAL PROJECT GRANT AGREEMENT Project No. 0913.01 Contract No. This agreement made this 1st day of OCTOBER 1985 by and between The People of the State of New York, (hereinafter referred to as "State") acting by and through the Commissioner of Transportation (hereinafter referred to as "Commissioner"), whose office is in the Administration and Engineering Building, 1220 Washington Avenue, State Campus, in the City and County of Albany, State of New York, and the TOWN OF SOUTHOLD with offices at SOUTHOLD, NEW YORK a municipal corporation duly authorized and existing under the laws of the State of New York, (hereinafter referred to as the "Municipal Corporation"), Whereas, the TOWN OF SOUTH OLD is deemed to be a "Municipal Corporation" within the definition contained in the "Transportation Capital Facilities Development Act" being part of Title 1 of Chapter 717 of the Laws of 1967, and Whereas, the Municipal Corporation intends to undertake a "municipal project" as defmed in Chapter 717 of the Laws of 1967, which project is generally described as SEE ARTICLE 3 said project being more particularly described herein, and Whereas, the Municipal Corporation has made application to the Commissioner for State aid for said municipal project pursuant to the provisions of Chapter 717 of the Laws of 1967, and Whereas, the said municipal project has been approved by the Commissioner and found by him to be consistent with sound transportation development policy and planning concepts, and Whereas, the said municipal project has been recommended by the Governor in a budget bill and approved by the Legislature in accordance with the requirements of Chapter 717 of the Laws of 1967. Now, therefore, in consideration of the mutual covenants hereinafter set forth, the parties hereto agree as follows: Article I. Purpose of Agreement - The purpose of this Agreement is to provide for the undertaking of an airport capital facilities project (herein called the "Project"), with State fmancial assistance to the Municipai Corporation in the form of a capital grant (berein called the "Grant"), under the Transportation Facilities Develop. ment Act of 1967, (herein called the "Act") and to state the terms and conditions upon which such assistance will be provided and the mutual understandings and agreements of the parties as to the manner in which the Project will be undertaken and completed and the Project facilities and equipment will be used. Article 2. Documents Forming the Agreement - The agreement shall consist of this document and the following attachments: Addendum No.1, Schedule I, and Appendix A. Article 3. The Project - The Municipal Corporation agrees to undertake and complete the Project, and to provide tbr the use of Project facilities, substantially as described in its application heretofore filed with and approved by the Commissioner, a copy of which is hereby made part of this Agreement by reference, and in accordance with the Request for Aid, made to the Federal Aviation Administration, a copy of which is hereby made part of this Agreement by reference, and in accordance with the terms and conditions of this Agreement. The Project is described as follows: SEAL AND REPAIR RUNWAYS 7-25 AND 12-30 This work is more particularly described and detailed in the plans, specifications and schedules approved or to be approved by the Commissioner. ov 4-18 (3/79) . . . . , '" Article 4. The Grant rile COIHmisslt)Jlcr hereby determines that the estimated reasonable cost of the Project is $ 149,160 Subject to the Municipal Corporation compliance with the terms and conditions of this Agreement, the Cnl1l111i5Siuner agre~s 10 pay to the Municipal Corporation, as hereinafter provided, not more than $ 11,187 l)f 75(< of the lllHl-Fcderal Sh,HC of the pwject cost whichever is less. The Municipal Corporation agrees to apply' for additillllal Federal assistan<.:e whirl1 1\1;IY bel..'omc available for the Project, subject to such con. ditions dS the COlllllll.)siuncr 1llay require in order In 11LI\lllll/t' the amounls of Federal assistance received or to be received for :;11 projects ill the Stelle (If New Yorl-... hl lltl' t'Vellt that Feder<ll Jssistance which was not induded in the foregoing calculation uf the Stale payment bec()Jilt:s available to the Municipal Corporation, the amount of State payment shall be recalculated with the inclusion (\f slIdl additi,)Jwi Fedefal assistance and the Municipal Corporatllln SI13l1 either \3) pay to ihe State the <rIlHllllll by V.dllCh the State pJYlllcnt actually made exceeds the State payment deterlllined. by the l'ecJkulatitll1 tll (h) if Slh:h adJitillllal Federal assistance has not been received by the Municipal CnrpllfJtilln, authorile the StJle tu 1l'....Tivl' sllch amount from the Federal government and to retain an appropriate anlllunt thereof. The Municipal CtHplnatiun shull provide I' Dr the payment of the remainder of the actual total cost of the PlOject. Article 5. Commencement ot Work and Use arid Sale of Project Facilities --- The Municipal Corporation agrees to undertake dnd IHOCt~ed with the project within 6 months of the date of this agreement and to complete the project ill accordanc:c with the schedules anu specificar.ions as <lpproved by the Commissioner, and in accordance with the completion date prescribed by the Legislature. On completion of the projed. the Municipal Corporation shall commence and continue operation of the project and shall not disculltirnh~ operation. or disj10se of the project. withl)Ut the approval of the Commissioner. No part of any Pwjed' nr Projecl fadlity shall be sll!d. rendered unusable, or otherwise relinquished without obtaining prior written approv:.ll of the Comrnisshmer and StJte Comptroller. If any Project parts or facilities are so sold, other than fur their replacement in such service with like facilities or equipment, the State share of the proceeds of such a sale will be returned to the State COJ1lptruller for deposit in the General Fund. The Municipal Corporation will operate the airpmt as sllch for the use and benefit of the public. In furtherance of this covenant (but without limiting its general applicability and effect), the Municipal Corporation specifically agrees that it wdl keep the airport npen to all types, kinds, and classes of aeronautical use without discrimination between such types, kinds, and classes: Provided, that the Municipal Corporation may establish such fair, equal and not unjustly discriminatory cunditions to be met by all users of the airport as may be necessary for the safe and efficient operation of the airport: and provided further that the Municipal CorplHation may prohibit or limit any given type, kind, III class aeronautical use of the airport if such action is necessary for the safe operation of the airport or necessary to serve the civil aviation needs of the public. The Municipal Curporatioll will not grant or permit any exclusive right for the use of the airport, and will otherwise comply with all applicable laws. In furtherance of this covenant (but without limiting its general Jpplicability and effect), the Municipal Corporation specifically agrees that. unless authorized by the Commissioner, It will not. either directly or indirectly, grant or permit any person, firm, or corporation the exclusive right for the conduct of any aeronautical activities Oil the airport, including but not limited to, charter fli~hts, pilot training, aircraft rental and sightseeing, aerial photography, crop dusting, aerial advertising and surveying, air carrier opera. tions, aircraft sales and services, sale of aviation petroleum products whether or not conducted in conjunction with other aewnautical activity. repair and maintenance of aircraft, sale of aircraft parts, and any other activities which because of their direct relationship to the operation of aircraft can be regarded as an aeronautical activity. The Municipal (\lrpnration agrees that it will operate the airport for the use and benefit of the public, on fair and reasonable terms, and without unjust discrillllllation. In furtherance of this covenant (but without limiting its general applicabiliry and effect). the Municipal Cnrporaliull specifically cuwnallts and agrees: 3. Cll1at III ifs npt:ratioll and the operation of all facilities on the airport. neither it nor any person or organi- zation occupying spJce or facilities thereon will discriminate against any person or class of persons by reason of race, creed. sex cll}or lH national ,)rigin in the use of any of the facilities provided for the public on the airport. b. That in any agreement. contr<lct, lease, or other arrangement under which a right or privilege at the airport is granted to any per~oll, finn. or corporatIOn to render to the public any service (including the furnishing or sale of any acwlIJutil'al parts, materials, or supplies) essential to the operation of aircraft at the airport, the Municipal Corporation will insl'rt and en furce plOvisions requiring the contractor: (I) t,) furnish saId service on a fair, equal, and not unjustly discriminatory basis to all users thereof, and (2) to charge LJir. rcasll!lable, and not unjustly discriminatory prices for each unit or service; provided that the contractor lllay be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. c. That it will not exercise or grant any right or privilege which would operate to prevent any person, firm, or corporaiion operating aircraft on the airport from performing any services on its own aircraft with its own employees (induding, but not limited tll maintenance and repair) that it may choose to perform, OV 4-2 (12/77) ',' d. I~' the event the MUnI" CorporatIon Ilsell exeruses any of the nght.d pnvlleges referred to 111 sub- section b, the services involved will be provided on the same conditions as would apply to the furnishing of such services by contractors or concessionaires of the Municipal Corporation under the provisions of such subsection b. Nothing contained herein shall be construed to prohibit the granting or exercise of any exclusive right for the furnishing of nonaviation products and supplies or any service of a nonaeronautical nature or to obligate the Municipal Corporation to furnish any particular nonaeronautical service at the Airport. The Municipal Corporation will operate and maintain in a safe and serviceable condition the airport and all facilities thereon and connected therewith which are necessary to serve the aeronautical users of the airport other than facilities owned or controlled by the United States, and will not permit any activity thereon which would interfere with its use for airport purposes: Provided. that nothing contained herein shall be construed to require that the airport be operated for aeronautical uses during t~llIpor~HY periods when snow.f1ooQ, or other climatic conditions which would interfere with such operation ~llld Illaintenance; and provided further. that nothing herein shall be construed as requiring the maintenance. repair. ICSltllJtioll or replacement of any struct4re or facility which is substantially damaged or destroyed due to an ai.:l Ill' Cod or other condition or circumstance beyond the control of the Municipal Corporation. Insofar as it is within its power and reasonablv tlossible. the Municipal Corporation will, either by the acquisition and retention of the easements or othcl intcrests in or rights for the use of land or airspace or by the adoption and enforcement of zoning regulations. prevent the construction, erection, alteration, or growth of any structure, tree, or other object in the approach areas of the runways of the Airport, which would constitute an obstruction to air navigation according to the criteria or standards applicable according to the currently approved airport layout plan. In addition, the Municipal Corporation will not erect or permit the erection of any permanent structure or facility which would interfere materially with the use, operation, or future development of the airport, in any portion of a runway approach area in which the Municipal Corporation has acquired, or may hereafter acquire, property interests permitting it to so control the use made of the surface of the land. AU facilities of the airport developed with State aid and all those usable for the landing and taking off of aircraft, will be available to State Aircraft at all times, without charge, The Municipal Corporation shall submit to the Commissioner, at such time as he may reql,.1ire, such financial statements, operating information and other data as may be deemed necessary by the Commissioner to assure compliance with this Article and to prepare his annual report on the scope and results of the Project, The airport and all airport records and documents affecting the airport, including deeds, leases, operation and use agreements, regulations, and other instruments, will be made available for inspection by any duly authorized representative of the Commissioner upon reasonable request. The Municipal Corporation will furnish to the Commissioner upon request, a true copy of any such document. The Municipal Corporation will not enter into any transaction which would operate to deprive it of any of the rights and powers necessary to perform any or all of the covenants made herein, unless by such transaction the obligation to perform all such covenants is assumed by another public agency found by the Commissioner to be eligible to assume such obligations and having the power, authority, and fmancial resources to carry out all such obligations. If an arrangement is made for management or operation of the airport by any agency or person other than the Municipal Corporation or an employee of the Municipal Corporation, the Municipal Corporation will reserve sufficient rights and authority to insure that the airport will be operated and maintained in accordance with these covenants. The Municipal Corporation will keep up-to-date at all times an airport layout plan of the airport showing (I) the boundaries of the airport and all proposed additions thereto, together with the boundaries of all offsite areas owned or controlled by the Municipal Corporation for airport purposes, and proposed additions thereto; (2) the location and nature of all existing and proposed airport facilities and structures (such as runways, taxiways, aprons, terminal buildings, hangars, and roads) including all proposed extensions and reductions of existing airport facilities; and (3) the location of all existing and proposed nonaviation areas and of all existing improvements thereon. Such airport layout plan, and each amendment, revision or modification thereof, shall be subject to the approval of the Commissioner which approval shall be evidenced by the siMature of a duly authorized representative of the Commissioner on the face of the airport layout plan. The Municipal Corporation will not make or permit the making of any changes or alterations in the airport or any of its facilities other than in conformity with the airport layout plan as so approved by the Commissioner if such changes or alterations might adversely affect the safety, utility, or efficiency of the airport. Insofar as is withm Its power and to the extent reasonable, the Municipal Corporation will take action to restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and purposes compatible with normal airport operations including landing and takeoff of aircraft. Article 6. Accomplishments of the Project - a. Pursuant to Federal, State and Local Law. In the event that any election, referendum, approval, permit, notice, or other proceedings or authorization is requisite under applicable law to enable the Municipal Corporation to enter into this Agreement or to undertake the Project hereunder, or to observe, assume, or carry out any of the provisions of this Agreement, the Municipal Corporation will initiate and consummate, as provided by law, all actions necessary with respect to any such matters so requisite. b. Funds of the Municipal Corporation. The Municipal Corporation shall initiate and prosecute to completion all proceedings necessary to enable the Municipal Corporation to provide its share of actual total cost of the Project, as provided in Article 4 of this Agreement, on or prior to the time that such funds are needed to meet Project cost. DV 4.3 (12177) . . " .,. c. Submission of Proceedings, Contract and Other Documents. The Municipal Corporation shall submit to the Commissioner and the State Comptroller such data, reports, records, contract and other documents relating to the Project as the Commissioner and the State Comptroller may require. Article 7. The Project Budget. A Project budget shall be prepared and maintained by the Municipal Corporation. The Municipal Corporation shall carry out the Project and shall incur obligations only in conformity with the latest approved Project budget, and within the "Estimated Total Cost" of the Project, as specified in the most recent Appropriation passed by the Legislature. The Budget shall in no event exceed that amount specified by the Legis. lature as the "Estimated Total Cost" of the Project, except as authorized in writing by the Commissioner. In the event that circumstances require a change in the Project budget, no additional work will be started or costs incurred until the Commissioner has been notified of the required change. Costs incurred for this change will be eligible for State reimbursement under this agreement only after the Change Order has been approved by the Commissioner and State Comptroller. State approval of Change Orders does not change the State's obligation as prescribed in Article 4 of this agreement. Article 8. Accounting Records - a. Establishment and Maintenance of Accounting Record. The Municipal Corporation shall establish and maintain for the project, in accordance with requirements established by the Commissioner and approved by the State Comptroller, separate accounts within its existing accounting system or set up independently. to be known as the project account. The Municipal Corporation shall segregate and group project costs so that it can furnish on due notice, cost information in the following cost classifications: (I) Purchase price or value ofland (2) Incidental costs ofland acquisition (3) Costs of contract construction (4) Costs of force account construction (5) Engineering costs of plans and designs (6) Engineering costs of supervision and inspection (7) Other administrative costs b. Funds Received or Made Available for the Project. The Municipal Corporation shall record in the project account, as they are received, all grant payments received from the Federal Government on account of the Project. The Municipal Corporation shall record in the project account such funds as it may allocate for payment ofits share of the actual cost of the project. The Municipal Corporation shall advise the Commissioner monthly in writing of the amounts recorded in the project account or at such times as the Commissioner may prescribe. The Corrunis- sioner or the State Comptroller may audit the project account at such time as the Commissioner or the State Comptroller may require. c. Costs Incurred for the Project. The Municipal Corporation shall charge to the project amount all eligible costs of the Project. Costs in excess of the latest approved budget or attributable to actions which have not received the required approval of the Commissioner and the Legislature shall not be considered eligible costs. In specific cases where it is impractical to determine precise costs of certain indirect or service functions, eligible costs will include such allowances for these costs as may be approved by the Commissioner and the Comptroller. Such approval will be based upon an audit determination that the amounts reimbursed will not exceed actual cost. Project costs consist of any costs involved in accomplishing a project including those of: .(1) (2) (3) (4) (5) (6) Making field surveys; Preparing plans and specifications; Accomplishing or procuring the accomplishing of the work; Supervising and inspecting construction work; Acquiring land or an interest therein, or any easement through or other interest in airspace; and Administrative and other incidental costs incurred specifically in connection with accomplishing a project, and that would not have otherwise been incurred. The costs described in this section, including the valoe of land, labor, materials and equipment donated or loaned to the Municipal Corporation and appropriated to the project by the Municipal Corporation, are eligible for consideration as to their allowability, except for: (1) That part of the cost of acquiring an existing private airport that represents the cost ofacquiring passenger automobile parking facilities and buildings to be used as hangars; (2) The cost of materials and supplies owned by the Municipal Corporation or furnished from a source of supply owned by the Municipal Corporation, if: (i) Those materials and supplies were used for airport development before the grant agreement was executed; or OV 4-4 (12/77) (il) The cost is not su.rted by proper evidence of quantity and valu. (3) The cost of nonexpendable machinery, tools, or equipment owned by the Municipal Corporation and used under a project by the Municipal Corporation's force account, except to the extent of the fair rental value uf that machinery, tools, or equipment for the period it is used on the project; The value of any land, including improvements, donated 10 the Sponsor by another public agency; and Any cosls incurred in connection with raising funds by lhe Municipal Corporation, including interest and premium charges and administrative expenses involved in conducting bond elections and in the sale of bonds. (4) (5) To be an allowable project cost, for the purposes of computing the amount of a grant, an item that is paid or incurred must, in the opinion of the Commissioner ~ (I) Have been necessary to accomplish airport development in conformity with the approved plans and specifi- cations for an approved project and with the terms of the grant agreement for the project; (2) Be reasonable in amount; (3) Have been incurred after the effective date of the Grant Agreement, except for those costs incurred to apply for Federal funds; prepare project engineering reports, plans and specifications; to identify, describe and determine value of land acquisition required for the project such as surveys, title searches and abstracts, appraisals and legal fees; which are provided for in the latest approved Project Budget, and included in a municipal contract previously approved for partial Slate reimbursement which has received Legislative approval for additional funds to provide the State's fair share of the project cost. (4) Be supported by satisfactory evidence. d. Documentation of Project Costs. All costs charged to the project account including any approved services contributed by the Municipal Corporation or others, shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers evidencing in proper detail the nature and propriety of the charges, in accordance with the rules and regulations of the Commissioner as approved by the State Comptroller. e. Chocks, Orde.. end Vouche... Any check or order drawn by the Municipal Corporation with respect to any item which is or will be chargeable against the project account will be drawn only in accordance with a properly signed voucher then on me in the office of the Municipal Corporation stating in proper detail the purpose for which such check or order is drawn. All checks, payrolls. invoices, contracts, vouchers, orders, or other accounting documents pertaining in whole or in part to the Project shall be clearly identified, readily accessible, and, to the extent feasible, kept separate and apart from all other such documents. f. Reporb. The Municipal Corporation shall prepare an interim report at the end of its fiscal year accounting for the expenditures of the funds of the State, the Municipal Corporation, any Federal agency, and any other source with respect to the project. Article 9. Requisitions end Poymonts a. Interim progress payments shall be made upon request by the Municipal Corporation to the Commissioner under the following conditions: (I) Such requests for reimbursement of the State's share of authorized project costs shall be made on a regular periodic basis, but no more frequently than once each month. (2) Such request vouchers shall be in a summary form and the documents supporting such costs incurred by the Municipal Corporation shall be maintained in a secure manner by the Municipal Corporation at its headquarters or at such other place as shall be readily accessible to the Commissioner and the State Comptroller for purposes of auditing project costs and expenditures. All such accounting records shall be retained by the Municipal Corporation until six years after completion of the State Comptroller's final audit report which will be rendered after the satisfactory completion of all physical work, the acquisition of real property and/or the furnishing of goods or services as provided by this agreement. b. Subject to the other provisions hereof, requisitions for payment will be honored by the Commissioner except that the State may elect by notice in writing to withhold any payment if; (1) Misroprosontotion. The Municipal Corporation shall have made any misrepresentation of a material nature in its Application, or any supplement thereto or :unendment thereof, or in or with respect to any document or data furnished therewith or pursuant hereto; DV 4-58 (3/79) . . (2) Litigation. There is then pending litigation with respect to the performance by the Municipal Corporation of any of its duties or obligations which may jeopardize or adversely affect the Project, this Agreement, or payments to the Project; (3) Concurrence by Stete. The Municipal Corporation shall have taken any action pertaining to the Project which under the established procedures requires the prior approval of the Commissioner or shall have made related expenditures or incurred related obligations without the approval of the Commissioner; (4) Conflict of Interests. There has been in clHHwdinn with the Projccl allY violation nr lhe conniet of interest rule, regulation, ordinanL:c or statute applicahlc 10 Ihe Municip:11 Corporation, its otTkers, members. or employees, or (5) Default. The Municipal Corporation shall be in default under any of the provisions of this Agreement. c. Disallowed Costs. In determining the amount of a payment, the Commissioner shall exclude all project costs incurred by the Municipal Corporation prior to the effective date of this agreement, except for those allowable costs as defined in Article 8(c) of this agreement. d. No interim payment will be made in an amount that would bring the aggregate amount of all partial payments for the project to more than 95 percent of the estimated State's share of the total estimated cost or the maximum obligation of the State as stated in Article 4, whichever amount is the lower. In determining the amount of a partial grant payment, those project costs that the Commissioner considers to be of questionable allowability are deducted both from the amount of project costs incurred and from the amount of the estimated total project cost. e. Whenever certain development on a project is delayed or suspended for an appreciable period of time for reasons beyond the Municipal Corporation's control and the allowability of the project costs of all development completed has been determined on the basis of an audit and review of all costs, a semi.fmal grant payment may be made in an amount large enough to bring the aggregate amount of all partial grant payments for the project to the State's share of all allowable project costs incurred, even if the amount is more than 95 percent limitation. However, it may not be more than the maximum obligation of the State as stated in Article 4. f. Whenever the project is completed in accordance with the grant agreement, the Municipal Corporation may apply for final payment. The fmal payment is made to the Municipal Corporation if: (1) A final inspection of all work has been made jointly by the representatives of the Municipal Corporation and the contractor and the Commissioner unless the Commissioner agrees to a different procedure for final inspection. (2) A final audit of the project account has been completed by the Commissioner or the State Comptroller. (3) The Municipal Corporation has furnished final "as constructed" plans, unless otherwise agreed to by the Commissioner. g. Based upon the final inspection, the final audit, the plans, and the documents and supporting information, the Commissioner determines the total amount of the allowable project costs and the State Comptroller pays the Municipal Corporation the State share, less the total amount of all prior payments. h. In no event shall the making by the State of any payment pursuant to this Agreement constitute or be construed as a waiver by the State of any breach of covenant or any default which may then exist, on the part of the Municipal Corporation, and the making of any such payment by the State while any such breach or default shall exist, it shall in nowise impair or prejudice any right or remedy available to the State in respect of such breach or default. Article 10. Termination or suspension of State's Obligations a. Termination or Suspension Generally. If the Municipal Corporation abandons or, before completion, finally discontinues the Project; or if, by reason of any of the events or conditions set forth in paragraphs (I) to (5), inclusive, of Article 9 (b) hereof, or for any other reason, the commencement, prosecution, or timely completion of the Project by the Municipal Corporation is rendered improbable, infeasible, impossible or illegal, the Commissioner may, by written notice to the Municipal Corporation, suspend any or all of its obligations under this Agreement until such time as the event or condition resulting in such suspension has ceased or been corrected, or the Commis- sioner may terminate any or all of its obligations under this Agreement. b. Action Subsequent to Notice of Termination or Suspension. Upon receipt of any final termination notice under this Section, the Municipal Corporation shall proceed promptly to carry out the actions required therein which may include any or all of the following: (I) necessary action to terminate or suspend, as the case may be, DV 4-6a (3/79) ~:oject ~~:ivities and contracts!d such other action as may be required or d.able to keep to a minimum the costs up Oil the basis of which the Grant is to be computed; (2) furnish a statement of the status of the Project activities and of the project account as well as a proposed schedule, plan and budget for terminating or suspending the closing out Project activities and contracts, and other undertakings the costs of which are otherwise includable as Project costs; and (3) provide to the suspension, or closing out of such activities, contracts, and other undertakings. The closing out shall be carried out in conformity with the latest schedule, and budget approved by the Commis. sioner upon the basis of terms and conditions imposed by the Commissioner upon the failure of the Municipal Corporation to furnish the schedule, plan and budget within a reasonable time. The acceptance of a remittance by the State of any or all Project funds previously received by the Municipal Corporation or the closing out of State financial participation in the Project shall not constitute a waiver of any claim which the State may otherwise have arising out of this Agreement. Article II. Remission of Project Account Upon Completion of Project. Upon completion of the Project, and after payment, provision for payment or reimbursement of all Project costs payable from the project account is made, the Municipal Corporation shall remit to the State any unexpended balance of State funds previously paid to it. Article 12. Audit .nd In.pection. The Municip.1 Corporation shall permit and shall require its contractors to permit the Commissioner's and the State Comptroller's authorized representatives to inspect all work, materials, payrolls, records of personoel, invoices of materials al'd other relevant construction, equipment, data and records; and to audit the books, records and accounts of the Municipal Corporation pertaining to the Grant and the develop- ment of the Project. Article 13. Mannor of Performing Work. The work constituting the Project may be performed by the employ- ment of the forces and the use of the equipment of the Municipal Corporation as authorized by the Commissioner, or by contract let pursuant to bidding procedures, more particularly referred to in Addendum I hereof. Article 14. Contracts of the Municipal Corporation. Any contracts, supplemental contracts, change orders or amendments thereto executed by the Municipal Corporation for this project must receive the approval of the Commissioner and State Comptroller before State reimbursement under this Agreement will be made. Such approvals do not change the State's obligation as prescribed in Article 4 of this Agreement. Article 15. Executory CI.u.... The Municipal Corporation agrees that this Agreement shall be deemed executory only to the extent of the monies available. and no liability shall be incurred by the State beyond the monies available for the purpose. IN WITNESS WHEREOF, this Agreement has been executed by the State acting by and through the Commis- sioner, who has caused the seal of his office to be affixed hereto, and the M\!.nicipal Corporation by and through a duly authorized officer has executed this Agreement effective the day and year first above written. By For: COMMISSIONER OF TRANSPORTATION of Southold THE PEOPLE OF THE STATE OF NEW YORK APPROVED By 19_ For the New York State Comptroller Pursuant to Section 112 State Finance Law OV 4-78 (3/79J . . STATE OF NEW YORK ) ) SS: COUNTY OF SUFFOLK ) On this 17th day of _~-"'m.b~____ in the year One Thousand Nine Hundred Eighty Eiv~__, before me personally carne Francis J. Murphy , to me known, who, being by me duly sworn did depose and say that he resides at Old Main Road Mattituck, New York 1 that he is the Supervisor of the Municipal Corporation described in and which executed the above instrument1 that he knows the Seal of " said Municipal Corporation1 that the Seal affixed to said instrument is such Corporate Seal1 that it was affixed by order of the ___.!~~~_B...9~~c!..._________________ of said Municipal Corporation pursuant to a resolution which duly adopted on December 17, 1985 and to which a certified copy is attached and made a part hereof1 and that he signed his name thereto by like order. ni'h#iJauvOA,~J~ NOTARY PUBLIC BJZAllETH ANN NEVIllE NOTARY PUBUC. State of New Y<<Ic No. 52-8125850. Suffolk County Term Expires March 30. 19~ .- '. . . contract may, except where contrary to the requirements of State or local law, be let by the Municipal Corporation on the basis of formal bidding; and provided, further that contracts in the amounts of $1,000 or less may,except where contrary to the requirements of State or local law , be made by the Municipal Corporation without negotiation or competitive bidding and without observance of the other provisions of this subsection; and provided, further, that if the Municipal Corporation finds, and the Commissioner & State Comptroller concur that the purchase of materials, equipment or supplies needed are of a type or class that are not competitively available and the obtaining of such materials, equipment or supplies can be made more economically by purchase in the open market by negotiation rather than by competitive bidding, the Municipal Corporation may do so. Approval by the Commis. sioner of proposed contract awards based on competitive bidding requires the Municipal Corporation to follow the procedures as described in the current issue of the lnjimnational Manual for Applicants for Mass Transportation and A vjation Projects as published by the Commissioner. 3. The Municipal Corporation agrees that contracts for professional or consulting services may be negotiated, but they must be in writing and must state the maximum compensation or reimbursement to be paid. Negotiations must be adequately documented to show consultants considered, proposals received, reasons for selecting the proposed consultant, and the unit basis or other detailed explanation in support of the amount of compensation to be paid. DV 4-9 (12177) . . ADDENDUM NO.1 TERMS AND CONDITIONS, 1. The Municipal Corporation agi."ees to incorporate Of cahse to be incorporated into any contract for construction work, or furnishing of any materials, supplies, or equipment or professional consulting services of any kind in connection with the Project, clauses under which the contractor: (a) Agrees to procure and maintain insurance of the kinds and in the amounts hereinafter provided in Schedule I hereof. (b) Agrees that he will comply with the requirements of the State Labor Law and particularly Sections 220 and 220-4 thereof as amended, and as sel forth in Appendix A hereof (c) Agrees that during the performance of this contract the Contractor will not discriminate against any employee or applicant for employment because of race, creed, sex, color or national origin and will comply with the Non-Discrimination provisions set forth in Appendix A hereof. (d) Agrees that he will cause ali persons employed upon the work including his subcontractors, agents, officers and employees, to comply with ali applicable laws in the jurisdiction in which the work is performed. (e) Aglees nOl to assign, transfer, convey, sublet or otherwise dispose of this agreement or any part thereof, or of its right, title or interest therein or its power to execute such agreement to any person, company or corporation without the previous consent in writing of the Municipal Corporation and the Commissioner of Transportation. (I) Agrees that in accordance with its status as an independent contractor, it will conduct itself with such status, that it will neither hold itself out as nor claim to be an officer or employee of the State by reason hereof, and that it will not by reason hereof, make any claim, demand of application to or for any right or privilege ap- plicable to an officer or employee of the State, including, but not limited to, Workmen's Compensation coverage, Unemployment Insurance Benefits, Social Security coverage or Retirement membership or Credit. (g) Agrees that this agreement may be cancelled or terminated by the Municipal Corporation if any work under this agreement is in conflict with the provisions of Section 74 of the Public Officers Law. (h) Agrees that any patentable result arising out of this Agreement, as well as ali information, designs, speci- fications, know-how, data, and findings, shall be made available without cost to the State or its licensees for public use. (i) Agrees that for construction work he will furnish a performance bond in an amount at least equal to 100 percent of his contract price as security for the faithful performance of his contract and also a labor and material bond in an amount equal to 100 percent of his contract price as security for the payment of ali persons performing labor on the Project 'under his contract and furnishing materials in connection with his contract. The performance bond and the labor and material bond may be in one or in separate instruments in accordance with law. 0) Agrees that the Commissioner and the State Comptroller reserve the right to audit and inspect the work of the contractor and any and all records thereof through representatives of the State, as well as through officers and employees of the State, as they shali determine. (k) Agrees that the State shall not be obligated or liable hereunder to any party other than the Municipal Corporation. 0) Agrees that if any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of the applicable law. (m) Agrees that by execution of the Agreement the contractor represents that it has not paid and, also, agrees not to pay, any bonus or commission for the purpose of obtaining an approval of this agreement. (n) Agrees that ali project documents requiring formal approval by a Federal Agency will be submitted to the Commissioner for his prior approval and forwarding to the Federal Agency for its formal approval. 2. The Municipal Corporation agrees to give full opportunity for free, open and competitive bidding for each contract to be let by it caliing for construction or the furnishing of any materials, supplies, or equipment to be paid for with Project Funds; will give such publicity to its advertisements or calis for bids for each such contract as will provide adequate competition; and the award of each such contract, when made, will be made by it as soon as practicable to the lowest responsible bidder: provided, that in the selection of materials, equipment, or supplies, the Municipal Corporation may, in the interest of standardization or ultimate economy, if the advantage of such standardization or ultimate economy is clearly evident and appropriate provision for such action is included by it in the proposed contract documents upon which bids are invited, award a contract to a responsible bidder other than the lowest in price with the approval of the Commissioner & State Comptroller; provided, further, that if the estimated amount of the proposed contract, as estimated by the Municipal Corporation, is $2,500 or less, such pv 4.~a (3/79) ~c . . 'c . SCHEDULE I . INSURANCE CLAUSES TO BE INCLUDED IN MUNICIPAL CORPORATION CONTRACTS The Municipal Corporation agrees to incorporate or cause to be incorporated into any contract in connection with the Project, the following clauses: The Contractor agrees to procure and maintain insurance of the kinds and in the amounts hereafter provided in insurance companies authorized to do business in New Yark State, covering all operations under the contract, whether performed by it or sub-contractors. Before commencing the work the Contractor shall furnish the Municipal Corporation a certificate or certificates in form satisfactory to the Municipal Corporation showing that it has complied with this Schedule, which certificate or certificates shall not be changed or cancelled until thirty days written notice has been given to the Municipal Corporation. The kinds and amounts of insurance required are as follows: A. Policy or policies covering the obligations of the Contractor in accordance with the provisions of any applicable Workmen's Compensation or Disability Benefits Law, including for the State of New York, Chapter 41, Laws of 1914, as amended, known as the Workmen's Compensation Law, and amendments thereto, and Chapter 600 of the Laws of 1949, as amended, known as the Disability Benefits Law, and this agreement shall be void and no effect unless the Contractor procures such policy or policies and maintains the same in force during the term of his contract. B. Protective Liability insurance issued to and covering the liability of the Municipal Corporation, the State, the Commissioner and all employees or other representatives of each of them, both officially and personally with respect to all operations under the contract including omissions and supervisory acts of the Municipal Corporation, the State, the Commissioner and their employees or other representa- tives. Policies of bodily injury liability and property damage liability insurance, each with limits of liability of not less than $100,000 for all damages arising out of bodily injury, including death at any time resulting therefrom sustailled by one person in anyone accident and subject to that limit for each person; not less than $300,000 for all damages arising out of bodily injury, including death at any time resulting therefrom, sustained by two or more persons in anyone accident, and not less than $100,000 for all damages arising out of injury to or destruction of property in anyone accident and subject to this limit per accident, not less than $300,000 for all damages arising out of injury to or destruction of property during the policy period c C. Liability insurance issued to and covering the liability of the CONTRACTOR with respect to all work performed by him under this Agreement. Dc Liability insurance issued to and covering the liability of each of the CONTRACTOR'S sub-contractors with respect to all work performed by said sub-contractors under this Agreement. E. Protective liability insurance issued to and covering the liability of the CONTRACTOR with respect to all work under this Agreement performed for the CONTRACTOR by sub-contractors. F. Protective liability insurance issued to and covering the liability of the MUNICIPAL CORPORATION and all employees of the MUNICIPAL CORPORATION, both officially and personally, with respect to all operations under this Agreement by the CONTRACTOR or by his sub-contractor, including omissions and supervisory acts of the MUNICIPAL CORPORATION and its employees. NOTE; If work is to be performed by forces of the Municipal Corporation, the Municipal Corporation will pro- vide or cause to be provided the insurance coverage provided in paragraph B above. ov 4-10 (12/77) CONR 335d(8/82) . APPENnIX A . The parties to the attached contract further agree to be bound by the follov,'ing, which are hereby made a part of said contract: l. This contract may not be assigned by the contractor or i:'; right, title or interest tht'fcin assigned, transferred, conveyed, sublet or disposed of without the previous consent, in writing, of the Slate. II. This contract shall be deemed executory only tc the' extent of money available to the State for the performance of the terms hereof and no liability on account thereof shalt be in('urrcd by the State of New York beyond money,; available for the purpose thereof. Ill. The contractor specifically agrees, as required by Labor Law, Sections 220 and 220-d, as amended, that: {a) no laborer, workman or mechanic, in the employ of the contractor, subcontractor or other person doing or contracting to do the whole or any part of the work contemplated by t.he contract shall be permitted or required to work more than eight hours i:1 anyone .:akndar day or more than five days in anyone week, except in the emergencies set forth in the Labor Law. (b) the wages paid for a legal day's work shall be not tcss than the prevailing rate of wages as defined by law. (c) the minimum hourly rate of wages to be paid shall not be less than that stated in the specifications, and any redeter- mination of the prevailing rate of wages after the contract is approved shall be deemed to be incorporated herein by reference as of the effective date of redetermination and shall form a part of these contract documents. I) The Labor Law provides that the contract may be forfeited and no sum paid for any work done thereunder on a second conviction for willfully paying less than -- (a) the stipulated wage scale as provided in Labor Law, Section 220, subdivision 3, as amended, or (b) less than the stipulated minimum hourly wage scale as provided in Labor Law, Section 220-d, as amended. IV. The contractor specifically agrees, as required by the provisions of the Labor Law, Section 220-e as amended that __ (a) In hiring of employees for the performance of work under this contract or any subcontract hereunder, or for the manufacture, sale or distribution of materials, equipment or supplies hereunder, no contractor, subcontractor nor any person acting on behalf of such contractor or subcontractor, shall by reason of race, creed, color, sex or national origin discriminate against any citizen of the State of New York who is qualified and available to perform the work to which the employment relates. (b) No contractor, subcontractor, nor any person on his behalf shall, in any manner, discriminate against or intimidate any employee hired for the performance of work under this contract on account of race, creed, color, sex or national origin, (c) There may be deducted from the amount payable to the contractor by the State under this contract a penalty of five dollars for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provisions of the contract, and (d) this contract may be cancelled or terminated by the State or municipality and all moneys due or to become due hereunder may be forfeited for a second or any subsequent violation of the terms or conditions of this section of the con tract, and (e) the aforesaid provisions of this section covering every contract for or on behalf of the state or municipality for the manufacture, sale or distribution of materials, equipment or supplies shall be limited to operations performed within the territorial limits of the State of New York. V. During the performance of this contract, the contractor agrees as follows: (a) The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, sex, national origin, age, disability or marital status. (b) If directed to do so by the Commissioner of Human Rights, the contractor will send to each labor union or represen- tative of workers with which the contractor has or is bound by a collective bargaining or other agreement or understan- ding, a notice, to be provided by the State Commissioner of Human Rights, advising such labor union or represen- tative of the contractor's agreement under clauses (a) through (g) (hereinafter called "non-discrimination clauses"). If the contractor was directed to do so by the contracting agency as part of the bid or negotiation of this contract, the contractor shall request such labor union or representative to furnish a written statement that such labor union or representative will not discriminate because of race, creed, color, sex, national origin, age, disability or marital status, and that such labor union or representative will cooperate, within the limits of its legal and contractual authority, in the implementation of the policy and provisions of these non-discrimination clauses and that it consents and agrees that recruitment, employment and the terms and conditions or employment under this contract shall be in accordance with the purposes and provisions of these non-discrimination clauses. If such labor union or representative fails or refuses to comply with such a request that it furnish such a statement, the contractor shall promptly notify the State Commis- sioner of Human Rights of such failure or refusal. CONR 335d.2 (8/82) . . (c) If directed to do so by the Conllni~sioT'cr of Human Rights, the Contractor will P'i\l and keep posted in conspicuous places. available to employees and applicants for rmploymrnt, notice~, to be providi?d by the State Commissioner of Human Rights setting forth the substance of the provisions of claus;?s (a) and (b) and such provisions of the State's laws against discriminal:on as lh.: Stale Cummissioner of Human Rights shall determinl:. (d) The contractor will state, in all 'lollcitatiolls or advcrriscments for employ.::es placed by or on behalf of the contractor, that all qualified applicants will be afforded. ('qud employment opportunities without discrimination because of race, creed, color. sex, national origin, age, disability or marital status. (e) The contractor will comply with the provisions of Sections 290-299 of the Executive Law and with the Civil Rights Law, will furnish all information dnd repmts deemed ne(,:essary by the State Commissioner of Human Rights under these non-discrimination clausL'\ and such sections of the Executive Law, and will permit access to the contractor's books, records and accounts by the State Commissioner for the purposes of investigation to ascertain compliance with these non-discrimination clauses and .weh sections of the Executive Law and Civil Rights Law. (f) This contract may be forthwith can;;ek'd, terminatcd or suspl:ndcJ, in whole or in part, by the contracting agency upon the basis of a finding made by the State Commissioner or Human Rights that the contractor has not complied with these non-discrimi_nation clauses, and the contrauor may be declared ineligible for future contracts made by or on behalf of the State or a pulbic authority or agency of the State, until the contractor satisfies the State Commissioner of Human Rights that the contractor has established and is carrying out a program in I:onformity with the provisions of these non-discrimination clauses. Such finding shall be m3de by the State Commissioner of Human Rights after con- ciliation efforts by the Commissioner have failed to a<.:liieve compliance with these nOll-discrimination clauses and after a verified complaint has been filed with the Commissioner, notice thereof has been given to the <.:ontractor and an op- portunity has been afforded the contractor to he heard publicly in accordance with the Executive Law. Such sanctions may be imposed and remedies invoked independently of or in addition to sanctions and remedies otherwise provided by law. (g) The contractor will include the provisions of clauses (a) through (f) in every subcontract or purchase order in such a manner that such provisions ",,'ill be binding upon each subcontractor or vendor as to operations to be performed within the State of New York. The contractor will take su<.:h action in enforcing such provisions of such subcontract or purchase order as the State Commissioner of Human Rights or the contracting agency may direct, including sanctions or remedies for non-compliance. If the contractor becomes involved in or is threatened with litigation with the subcon- tractor or vendor as a result of such direction by the State Commissioner of Human Rights or the contracting agency, the contractor shall promptly so notify the Attorney General, requesting the Attorney General to intervene and protect the interests of the State of New York. VI. (a) By submission of this bid, each bidder and each person signing on behalf of any bidder certifies, and in the case of a joint bid each party thereto certifies as to its own organization, under penalty of perjury, that to the best of his knowledge and belief: 1) The prices in this bid have been arrived at independently without collusion, consultation, communication or agree- ment, for the purpose of restricting competition, as to any matter relating to such prices with any other bidder or with any competitor; 2) Unless otherwise required by law, the pri<.:es which have been quoted in ('lis bid have not been knowingly disclosed by the bidder and will not knowingly be disclosed by the bidder prior to opening, directly or indirectly, to any other bidder or to any competitor; 3) No attempt has been made or will be made by the bidder to induce any other person, partnership or corporation to sub- mit or not to submit a bid for the purpose of restricting competition. (b) A bid shall not be considered for award nor shall any award be made where (a) (1) (2) and (3) above have not been com- plied with provided, however, that if in any case the bidder cannot make the foregoing certification, the bidder shall so state and shall furnish with the bid a signed statement which sets forth in detail the reasons therefore. Where (a) (1) (2) and (3) above have not been complied with, the bid shall not be considered for award nor shall any award be made unless the head of the purchasing unit of the State, public department or agency to which the bid is made, or his designee, determined that such disclosure was not made for the purpose of restricting competition. The fact that a bidder (a) has published price lists, rates, or tariffs covering items being procured, (b) has informed prospective customers of proposed or pending publication of new or revised price lists for such items, or (c) has sold the same items to other customers at the same prices being bid, does not constitute, without more, a disclosure within the meaning of paragraph VI (a). VII. The agreement shall be void and of no force and effect unless the contractor shall provide coverage for the benefit of, and keep covered during the life of this agreement, such employees as are required to be covered by the provisions of the Worker's Com- pensation Law. GONR 335d-3 (8/82) . . VIII. In accordance with Section 220-1' of the Labor Law and Section 139~h of the State Finance Law and the regulations of the Comptroller of the State of New York promulgated thereunder, the contractor agrees, as a material condition of the contract A. That neither the contractor nor any substantially owned or affiliated person, firm, partnership or corportation has par- ticipated, is participating, or shall participate in an international bayeot in violation of the provisions of the United States Export Administration Act of 1969, as amended, or the Export Administration Act of 1979, as amended, or the regulations of the United States Department of Commerce promulgated thereunder; B. That if the contractor or any substantially owned or affiliated person, firm, partnership or corporation has been convicted or subjected to a final determination by the United States Department of Commerce or any other appropriate agency of the United States of a violation of the United States Export Administration Act of 1%9, as amended, or the Export Administration Act of 1979, as amended, or the regulations of the United States Department of Commerce promulgated thereunder, the contractor shall notify the Comptroller of such conviction or determination in the manner prescribed by the Comptroller's regulations.