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HomeMy WebLinkAboutFI Pump out boat LORI HULSE MONTEFUSCO ASSISTANT TOWN ATTORNEY lori. mon tefusco@town.southold.ny.us SCOTT A. RUSSELL Supervisor PATRICIA A. FINNEGAN TOWN ATTORNEY patricia.finnegan@town.southold.ny.us KIERAN M. CORCORAN ASSISTANT TOWN ATTORNEY kieran.corcoran@town.southold.ny.us Town Hall Annex, 54375 Route 25 P.O. Box 1179 SouthoId, New York 11971-0959 Telephone (631) 765-1939 Facsimile (631) 765-6639 OFFICE OF THE TOWN ATTORNEY TOWN OF SOUTH OLD MEMORANDUM To: Ms. Lydia Tortora From: Lynne Krauza Secretary to the Town Attorney Date: August 4, 2006 Subject: Funding Agreement for Clean Vessel Act Assistance Program/Fishers Island Pump-Out Boat Please be advised that Lori has reviewed and approved the attached Agreement in connection with the referenced matter. A copy of the resolution authorizing Scott to sign this Agreement is also enclosed. In this regard, kindly have Scott sign and date all four counterparts of this Agreement where indicated. Please note that Scott's signature must be notarized. Once these documents have been signed by Scott, please forward them to Jim McMahon for handling. By copy of this Memorandum to Jim, I ask that he make certain that Betty receives a fully executed original Agreement for her records. Thank you for your attention. If you have any questions, please call me. Ilk Enclosures cc: Ms. Elizabeth Neville, Town Clerk (w/encls.) Mr. James McMahon, DPW (w/o encls.) FUNDING AGREEMENT FOR CLEAN VESSEL ACT ASSISTANCE PROGRAM THIS AGREEMENT, made as of the 1st day of December, 2005, by and between the NEW YORK STATE ENVIRONMENTAL FACILITIES CORPORATION, a New York public benefit corporation (hereinafter referred to as the "Corporation"), with offices located at 625 Broadway, Albany, New York 12207-2997 and the Town of Southold, (hereinafter referred to as the "Applicant") with offices located at 53095 Main Road, P.O. Box 1179, Southold, New York 11971 (hereinafter referred to as the "Agreement"). WITNE~~ETH: WHEREAS, the New York State Department of Environmental Conservation (hereinafter referred to as "DEC") is the agency of the State of New York which is the recipient of federal grant funds provided under the Clean Vessel Act Grant Program (hereinafter referred to as the "Program"), such Program being authorized pursuant to the Clean Vessel Act of 1992 and the regulations promulgated thereunder (hereinafter referred to as "CV A"), for the purpose of providing federal grant funds to states for the construction, renovation, operation and maintenance of pumpout and dump stations to improve water quality; .for the purpose of surveying existent pumpout and dump stations; and for the purpose of implementing education programs to increase public awareness of the use and availability of pumpout and dump stations to receive sewage waste from marine recreational vessels; and WHEREAS, pursuant to Section 1285(5) of the Public Authorities Law, the Corporation is empowered to provide certain assistance to municipalities, persons and state agencies, including, among other things, advice on matters relating to the identification, collection, handling, separation and disposal of waste, and on matters relating to the prevention and control of air emissions and water discharges, subject to regulation pursuant to the Environmental Conservation Law; and WHEREAS, the Corporation and DEC have entered into a Clean Vessel Act Program Services Contract (hereinafter referred to as the "Services Contract"), pursuant to which the Corporation has agreed to provide certain services on behalf of DEC with respect to the management and administration of that part of the Program which provides fmancial assistance for the construction, renovation or installation of marine pumpout and waste reception facilities in public and private marinas and mooring areas in certain New York State waters eligible under the Program; and WHEREAS, the Applicant has submitted the Clean Vessel Assistance Program Final Application (hereinafter referred to as the "Application") to the Corporation seeking such fmancial assistance, the terms of which are incorporated by reference herein; and WHEREAS, a determination has been made that fmancial assistance is available to the Applicant in the form of reimbursement of approved eligible costs incurred by the Applicant for the construction, renovation or instaIlation of the marine pumpout or waste reception facility or facilities as described in the Application (hereinafter referred to as the "Project"); and WHEREAS, in reliance upon the information provided by, and the representations and certifications made by the Applicant in the Application and in this Agreement, the Corporation has agreed to reimburse the Applicant with the approved project costs, as set forth in Appendix A, attached hereto and made a part hereof (hereinafter referred to as "Approved Project Costs"), subject to the terms and conditions provided herein. NOW, THEREFORE, in consideration of the promises and the mutual covenants and conditions in this Agreement, the Corporation and the Applicant agree as foIlows: 1. Term of Agreement. The term of this Agreement shaIl commence on December 1, 2005 and terminate on November 30, 2006. The term may be extended for up to one (1) six month period by mutual agreement in a writing signed by the authorized representative of the Corporation and the Applicant. However, the rights of DEC and the obligations and liabilities of the Applicant under this Agreement shall survive and continue in fulI force and effect for the fulI period of the useful life of the Project, and shalI not be terminated, discharged or released, in whole or in part, irrespective of whether the term of this Agreement has expired, irrespective of whether the Project has been completed and irrespective of any other fact or circumstances of any nature whatsoever. 2 2. Applicant's Covenants/Representations and Warranties. (a) Applicant covenants and agrees that: i) The Applicant will cause the construction, renovation and/or installation of the Project in strict accordance with the plans and/or specifications and project cost estimate submitted by Applicant to the Corporation in the Application and approved by DEC. ii) The Applicant has obtained or will obtain, and has complied and will continue to comply with all permits, certificates, licenses and authorizations required for the Project, as well as all applicable local, state and federal laws relating thereto and upon completion of the Project will continue to comply with all local, state and federal laws relating to the operation and maintenance of the Project, for the useful life of the Project. iii) The Applicant will dispose of any waste from the Project in accordance with the representations set forth in the Application, and all applicable current and future local, state and federal laws and regulations, throughout the useful life of the Project. The Applicant further agrees to provide written documentation evidencing proper disposal upon request by the Corporation and/or DEC. iv) In accordance with the Applicant Certification, attached hereto and made a part hereof as Appendix B, the Applicant reaffirms that it is aware of all requirements of the Program and the CV A and has complied and will continue to comply with all requirements thereunder, for the useful life of the Project. v) For the duration of the term of this Agreement, the Applicant will procure and maintain at its own expense, general liability insurance with a limit of not less than $1,000,000, and such other insurance coverage as the Corporation shall require in such amounts that are acceptable to the Corporation and provided by insurance companies licensed to do business in the State of New York. Upon signing this Agreement, the Applicant shall furnish to the Corporation, a certificate or certificates, in a form satisfactory to the Corporation, evidencing that it has complied with this provision. The certificate or certificates shall provide that the policies shall not be changed or canceled unless thirty (30) days prior written notice of such change or cancellation has been given to the 3 Corporation. Not less than thirty (30) days prior to the expiration date or renewal date, the Contractor shall supply EFC updated replacement Certificates of Insurance. The Corporation and DEC shall be named as an "additional insured" on all insurance policies. The Applicant shall require all contractors and subcontractors utilized by the Applicant, in connection with this Project, to comply with all such insurance requirements. vi) The Applicant will not, at any time, sell or convey any portion of any property purchased, developed or necessary to the continued operation of the Project or any portion of the Project as constructed, renovated and/or installed, nor will the Applicant convert any such property or any portion of the Project to any use other than the use for which the Project was approved by DEC in the Application, without the prior written consent of DEe. For the duration of the term of this Agreement, a copy of DEC's written consent shall be provided by the Applicant to the Corporation a minimum of 30 days prior to any such action with respect to sale, conveyance, conversion or change in use of such property or the Project. (b) Applicant represents and warrants that: i) The Applicant has sufficient funds to complete the Project and for the continued operation and maintenance of the Project. ii) The Applicant has the power and authority to enter into this Agreement and to perform its obligations hereunder, and the signatory executing this Agreement is duly authorized to execute this Agreement on behalf of the Applicant and to bind the Applicant thereto. iii) Subject to the provisions set forth in paragraph 2(a)(vi) herein, the Applicant owns and will continue to own the Project and any property purchased, developed or necessary to the continued operation of the Project. 3. Right ofInsoection. (a) The Applicant will provide the Corporation and DEC access at all reasonable times to the Project, and all surrounding environs, during the construction, renovation and/or installation of the Project and upon completion thereof, as well as access to records, invoices and such other documentation evidencing the progress of the construction, 4 renovation and/or installation of the Project. The Applicant will require that all contracts and subcontracts relating to the Project contain provisions for access and inspection at all reasonable times by the Corporation and DEC. (b) The Applicant agrees to notify the Corporation when the Project is complete. After receipt of such notice, the Corporation and/or DEC will conduct a [mal inspection to determine whether the Project as completed meets the requirements necessary to allow the Applicant to be reimbursed for Approved Project Costs. (c) The Applicant acknowledges and agrees that the Corporation and/or DEC's inspection of the Project and review of the Application and the documents submitted in connection therewith and with this Agreement is solely for the purpose of determining compliance with the requirements of the Program, the CV A and this Agreement in connection with granting state assistance to the Applicant for eligible costs incurred in the construction, renovation and/or installation of the Project. Such inspection and review shall not be construed in any way as a warranty or representation by the Corporation or DEC concerning the accuracy of any information provided in the Application and the documents submitted in connection therewith and with this Agreement, or the safety, quality, workmanship, qualifications or any other aspect of the construction, renovation and/or installation of the Project. (d) The Applicant will provide DEC access at all reasonable times to the Project, all surrounding environs, as well as access to records, invoices and such other documentation relating to the Project for the full period of the useful life of the Project. 4. Reimbursement bv Corooration. (a) Subject to the availability of state and federal Program funds, and upon the Applicant's satisfaction of the conditions set forth below, the Corporation agrees to reimburse the Applicant for certain costs incurred in connection with the Project in the amount as approved by DEC, and as set forth on Appendix A as the Approved Project Costs. The decision with respect to the Applicant's satisfaction of such conditions shall be determined in the sole discretion of the Corporation, and/or DEC. i) Compliance with the covenants, agreements, representations and warranties of the Applicant set forth in Section 2 of this Agreement. S ii) Applicant's request of the Corporation for reimbursement and inspection of the Project, and the passing of that inspection. Passing inspection for purposes of this section shall mean that the Corporation and/or DEC are satisfied that the facility is operational and built as proposed by the Applicant, and that the Applicant has undertaken and satisfactorily completed any necessary corrective action requested. iii) Submission of invoices and proof of payment, satisfactory to the Corporation, relating to the costs incurred for eligible work for which the Applicant seeks reimbursement, and such other documentation as the Corporation may request evidencing costs incurred, together with a copy of the Clean Vessel Assistance Program Reimbursement Application Form annexed hereto as Appendix C and made a part hereof. iv) If applicable, a corporate resolution, partnership consent or other documentation for the Applicant, in form and content satisfactory to the Corporation, authorizing the execution, delivery and performance of this Agreement and authorizing the person executing this Agreement on behalf of the Applicant to bind the Applicant thereto. (b) Upon the satisfaction of the requirements set forth in subsection (a) of this Section, the Corporation will reimburse the Applicant in as timely a manner as possible. The Corporation makes no representation or warranty concerning the time period in which reimbursement will be made. (c) The Applicant \Igrees that it will not receive reimbursement from other municipal, state or federal sources for any expenditures reimbursed under this Agreement and that any expenditures which will be reimbursed by other municipal, state or federal sources shall not be eligible for reimbursement under this Agreement. 5. Rights of DEC. The Applicant acknowledges that DEC is the state agency that is the recipient of the federal grant funds provided under the Program and is responsible for the implementation of the Program in New York State, and that the Corporation, pursuant to the Services Contract, has contracted with DEC concerning the performance of certain services in connection with the 6 implementation of the Program. The Applicant covenants and agrees that all of the benefits and rights granted to the Corporation hereunder shall inure,to the benefit of DEC, and its successors andlor assigns, and that DEC is a third party beneficiary of the rights and benefits granted to the Corporation under this Agreement. The Applicant acknowledges, covenants and agrees that DEC andlor the Corporation has the right to enforce the obligations of the Applicant under this Agreement 6. Remedies Upon Default. (a) The Applicant expressly agrees that the Corporation andlor DEC have absolute and sole discretion to determine that the Applicant has failed to fulfill the obligations of the provisions of this Agreement; or that the Applicant has, in any way, failed to construct, renovate andlor install, or operate and maintain the Project to the satisfaction of the Corporation andlor DEC; or that the Applicant has violated any permit, condition, or provision of law relating to the Project. In any such case, the Corporation andlor DEC shall have the authority to declare the Applicant to be in default, and therefore subject to the remedies set forth herein. (b) If the Applicant defaults on any of the terms and conditions of this Agreement, and such default continues for a period of more than thirty (30) days following written notice from the Corporation to the Applicant, the Applicant acknowledges and agrees that the Corporation andlor DEC shall have the authority to enforce any remedy deemed available to the Corporation andlor DEC including, but not limited to, the following: i) The withholding of the reimbursement of any Approved Project Costs not yet provided to the Applicant. ii) The commencement of any process necessary to effectuate the return of the full amount of Approved Project Costs provided to the Applicant in accordance with this Agreement to the Corporation andlor DEC. The Applicant expressly agrees that it shall be obligated to reimburse the Corporation andlor DEC for any costs necessary to recover said Approved Project Costs, including but not limited to attorney fees and court costs. 7 7. Indemnification. The Applicant agrees to defend, indemnify, save and hold harmless New York State, the Corporation and DEC and all their agents and employees from and against all claims, damages, losses, expenses (including, without limitation, reasonable attorney fees) arising out of or in consequence of any negligent act or omission or intentional act of the Applicant, or by reason of the execution of this Agreement or performance of the work provided for in this Agreement, and further agrees to defend at its own cost and expense, any action or proceeding commenced by or against the Applicant, and, at the request of the Corporation and/or DEC, any action or proceeding commenced by or against the Corporation and/or DEC, for the purpose of asserting or defending any claim of whatsoever character arising out of this Agreement. 8. Notices. Any notice, request, demand, statement, authorization, approval, consent or acceptance made hereunder shall be in writing and shall be hand delivered or sent by express service or other reputable courier service, or by registered or certified mail, return receipt requested to the addresses set forth in Section 9 of this Agreement. Said notice shall be deemed given as follows: (i) if hand delivered or sent by express service or other reputable courier service, the date of delivery, or (ii) if sent by registered or certified mail, return receipt requested, seven (7) calendar days after being posttnarked. 9. Authorized Reoresentatives. (a) The Corporation's authorized representative for the implementation of this Agreement and for approval and direction called for in this Agreement is Erick McCandless, or his designee, as communicated in writing to the Applicant. Whenever it is provided in this Agreement that notice must be given or other communication sent to the Corporation, the notice or communication will be delivered or sent to: New York State Environmental Facilities Corporation 625 Broadway Albany, New York 12207-2997 8 ATTENTION: Frederick McCandless, Director of Technical Advisory Services Copy to: General Counsel, New York State Enviromnental Facilities Corporation (b) The Applicant's authorized representative for the implementation of this Agreement is: Name: Director of Department of Public Works Whenever it is provided in this Agreement that notice must be given or other communication sent to the Applicant, the notices or communications will be delivered or sent to: Applicant: Town of Southold 53095 Main Road, P.O. Box 1179 Southold, New York 11971 (c) The DEC's authorized representative for the implementation of this agreement and applicant's contact for continuing obligations under the Program is: Mr. Edward F. Woltmann, Biologist III (Aquatic) Whenever it is provided in this Agreement that notice must be given or other communication sent to DEC, the notices or communications will be delivered to: NYS DEC, Division of Fish, Wildlife and Marine Resources Public Use Section 625 Broadway Albany, New York 12233-4753 ATTENTION: CVAP 10. Appendices and Attachments. Appendix D, "Standard Clauses For Third-Party Contracts For New York State", and Appendix E "Standard Clauses for All New York State Department of Enviromnental Conservation Contracts" are attached hereto and made a part of this Agreement. All such clauses shall inure to the benefit of the Corporation as well as DEC. Additional attachments identified in this Agreement are attached hereto and also made a part of this Agreement. 9 11. Assignment. The Agreement and the rights and obligations of the Applicant hereunder may not be assigned without the prior written consent of the Corporation and/or DEC. 12. Entire Agreement; Seoarabilitv. This Agreement contains the provisions, conditions, and promises agreed to between the parties. If any part of this Agreement is held to be invalid or unenforceable, the invalidity or unenforceability of such will not affect the remainder of this Agreement and this Agreement will remain valid as if the invalid or unenforceable part had not been contained. 13. Amendments. This Agreement, including the attached Application, Appendices and Attachments, may only be amended by a written instrument signed by both parties. 14. Waivers. Failure of the Corporation and/or DEC to enforce anyone or more of the conditions contained herein, shall not be construed as a waiver of such conditions. Any waiver in any instance or under any particular circumstance shall not be effective unless in writing and shall not be considered a waiver of such condition in any other instance or any other circumstance. 15. Governing Law. This Agreement is and shall be deemed to be a contract entered into pursuant to the laws of the State of New York and shall in all respects be governed, construed, applied and enforced in accordance with the laws of the State of New York, except where the Federal supremacy clause requires otherwise. 16. Construction of Agreement. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of such paragraphs and shall not be given any consideration in the construction of this Agreement. 10 IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto on the day and year appearing following their respective signatures. Certification: "In addition to the acceptance of this contract, I also Certify that original copies of this signature page will be attached to all other exact copies of this contract. " Contract No. C-888178 NEW YORK STATE ENVIRONMENTAL FACILITIES CORPORATION By: Name: Title: Date: APPLICANT By: Name: Scott A. Russell Title: Supervisor Date: 11 STATE OF NEW YORK ) ) ss.: COUNTY OF ALBANY ) On this day of , 200 , before me personally came , to me known, who, being by me duly sworn, did depose and say that he/she is the of the New York State Environmental Facilities Corporation, the corporation described in and which executed the foregoing instrument; and that he/she signed hislher name thereto by order of the Board of Directors of said corporation. Notary Public STATE OF NEW YORK ) ) ss.: COUNTY OF .5u...tfoC~ ) On this day of , 20% before me personally came )cP+f- A- f(,-{.s~((, to me known, who, being by me d1 sworn, did depose and say that ~ is the5,'iiJ'fJr the --r:;;u ^ <A- 5 ~ ~""( , the corporation --=-.6!:ffiershiP described in and which executed the foregoing instrument; and that k signed .J' name thereto by the authority of said corporation or partnership. Notary Public STATE OF NEW YORK ) ) ss.: COUNTY OF ) On this day of , 200 , before me personally came to me known, who, being by me duly sworn, did depose and say that is the individual described in and which executed the foregoing instrument, and duly acknowledged to me that _ signed the same. Notary Public 12 APPENDIX A DETERMINATION OF APPROVED PROJECT COSTS FACIUTY NAME: Fishers Island Yacht Club & Marina TOTAL PROJECT COSTS EUGffiLE PROJECT COSTS CONSTRUCTION 0 0 ENGINEERING 0 0 EQUIPMENT $49,000.00 $49,000.00 ACCESSORY ITEM 0 0 MISCELLANEOUS 0 0 TOTALS $49,000.00 $49,000.00 APPROVED PROJECT COSTS $35,000.00 NOTE: "Approved Project Costs" reflect funding of up to 75 % of Eligible Project Costs, not to exceed $35,000 per facility. EXPLANATION: 13 NEW YORK STATE ENVIRONMENTAL FACILITIES co:aREOEIVED 62SBROADWAY . ALBANY,NEWYORK12207-2997 NOV 07 200! CleaD Vessel AssistaDce ProgFam APPLICANT CERTIFICATION "m.Wf{=~~;"\.. 'rMmCAL'=\\~ llvt8. I hereby certifY that the infonnation set forth in this application is accurate and that I have reviewed and understand the requirements necessary to obtain reimbursement of costs under the Clean Vessel Assistance Program for a Clean Vessel Act project at (name of facility) West Harhor Fi"hprc: i"lann NY . as set forth in the program , infonnation provided with the final application and reimbursement package, and I agree to comply with such requirements. I also certify that I have diligently investigated and obtained, or will obtain. all licenses, agreements, easements and permits necessary to undertake the project prior to commencing the project. I also certify that I am in compliance with all necessary local, state and federal laws relating to the project and that I will continue to comply with all such laws for the useful life of the project. James McMahon, Authorized Representative Name - Printed or Typed Director, Public Works, T 10 Applicant Title Southold ~* /D/l7j;)cos;- Date ~ JanlllU}' 2003 APPENDIX C CLEAN VESSEL ACT PROGRAM REIMBURSEMENT APPLICATION FORM New York State Environmental Facilities Corporation 625 Broadway Albany, New York 12207 Attention: Contracts Unit Re: Fishers Island Yacht Club & Marina Ladies and Gentlemen: Pursuant to a Clean Vessel Act Funding Agreement dated as of December 1, 2005 between the New York State Environmental Facilities Corporation and the Town of Southold, we hereby request disbursement in the amount of $ for project costs. In connection with this requisition we hereby represent and certify the following: I. This requisition is requisition number 2. The amount of this requisition, together with all prior requisitions, does not exceed the amount of the Grant. 3. All amounts requisitioned hereunder are for eligible project costs which have not been included in any previous disbursement. 4. I hereby certify that expenses represented in this reimbursement request reflect actual costs for materials and services that were used for the sole purpose of completing the approved Clean Vessel project stated above and none of these claims were expended, in part or in full, for any other purpose. Date: Signature Name and Title of Authorized Representative for Applicant (Print or type clearly) 15 APPENDIX D STANDARD CLAUSES FOR THIRD-PARTY CONTRACTS FOR NEW YORK STATE The attached contract ("the Contract" or "this Contract") has been determined to be a contract "for" the State of New York ("the State") . The Contract is between an entity acting for the State pursuant to an agreement with the State (the "State Contractor") and another entity (the "Third-Party Contractor", which refers to any party other than the State Contractor or the State, whether a contractor, licenser, licensee, lessor, lessee or any other party). In light of the foregoing, the parties to the Contract (whether it may be a license, lease, amendment or other agreement of any kind) agree to be bound by the following clauses which are hereby made a part of the Contract: 1. LIMITATION OF STATE'S LIABILITY. The State shall have no liability hereunder to the Third-Party Contractor. The State's liability, if any, is to the State Contractor pursuant to an agreement between the State and the State Contractor ("the Agreement") which is separate and apart from this Contract, and, in accordance with the executory clause to the Agreement the State's Liability is limited to the funds appropriated and available for such Agreement. 2. NON-ASSIGNMENT CLAUSE. Consistent with the provisions of Section 138 of the State Finance Law, this Contract may not be assigned by the Third-Party 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 Contractor and the State and any attempts to assign the Contract without the State's written consent are null and void. The Third-Party Contractor may, however, assign its right to receive payment without the State Contractor's and the State's prior written consent unless this Contract concerns Certificates of Participation pursuant to Article 5-A of the State Finance Law. 3. COMPTROLLER'S APPROVAL. In accordance with Section 112 of the State Finance Law, if this Contract exceeds $15,000 (or, if this Contract is for the State University or City University of New York, Section 355 or Section 6218 of the Education Law and exceeds 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 the Contract involves consideration other than the payment of money for the State and the consideration being given for the State has a value or reasonably estimated value that exceeds $10,000, it shall not be valid, effective or binding until it has been approved by the State Comptroller and filed in his office. Comptroller's approval of Contracts let for the Office of General Services is required when such Contracts exceed $30,000 (State Finance Law Section 163.6.a). Failure to obtain the Comptroller's approval of this Contract, where required, will preclude any payment by the State to the State Contractor under the Agreement which would be used to fund this Contract. 4. WORKERS' COMPENSATION BENEFITS. Consistent with the provisions of Section 142 of the State Finance Law, this Contract shall be void and of no force and effect unless the Third-Party Contractor shall provide and maintain coverage during the life of this Contract for the benefit of such employees as are required to be covered by the provisions of the Workers' Compensation Law. 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 Third-Party 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, the Third-Party Contractor agrees that neither it nor its subcontractors shall, by reason of race, creed, color, disability, sex, or national origin: (a) discriminate in hiring against any New York State citizen who is 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, the Third.Party 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. The Third-Party Contractor is subject to fines of 550.00 per person per day for any violation of Section nO-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 workcontract covered by Article 8 of the Labor Law or a building service contract covered by Article 9 thereof, neither the Third-Party 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, the Third-Party Contractor and its subcontractors must pay at least the prevailing wage rate and payor 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. Consistent with the provisions of Section 139.d of the State Finance Law, if this Contract was awarded based upon the submission of bids, the Third-Party Contractor warrants, under penalty of perjury, that its bid was arrived at independently and without collusion aimed at restricting competition. The Third-Party Contractor further warrants that, at the time the Third- Party Contractor submitted its bid, an authorized and responsible person executed and delivered to the State Contractor or the State a non-collusive bidding certification on the Third-Party Contractor's behalf. 8. INTERNATIONAL BOYCOTT PROHIBITION. Consistent with the provisions of Section 220-f of the Labor Law and Section 139-h of the State Finance Law, if this Contract exceeds $5,000, the Third-Party Contractor agrees, as a material condition of the Contract, that neither the Third.Party 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 Third-Party Contractor, or any of the aforesaid affiliates of Third- Party 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 Third-Party Contractor shall so notify the State Comptroller within five (5) business days of such conviction, determination or disposition of appeal (2NYCRR 105.4). 9. RECORDS. The Third-Party Contractor shall establish and maintain complete and accurate books, records, documents, accounts and other evidence directly pertinent to performance under this Contract (hereinafter, collectively, "the Records"). 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 during normal business hours at an office of the Third-Party Contractor within the State of New York or, if no such office is available, at a mutually agreeable and reasonable venue within the State, for the term specified above for the purposes of inspection, auditing and copying. The State shall take reasonable steps to protect from public disclosure any of the Records which are exempt from disclosure under Section 87 of the Public Officers Law (the "Statute") provided that: (i) the Third-Party Contractor shall timely inform an appropriate State official, in writing, that said records should not be disclosed; and (ii) said records shall be sufficiently identified; and (iii) designation of said records as exempt under the Statute is reasonable. Nothing contained herein shall diminish, or in any way adversely affect, the State's right to discovery in any pending or future litigation. 10. EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITIES AND WOMEN. Consistent with the provisions of 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 the State Contractor 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 rendered or furnished tothe State Contractor; or (ii) a written agreement in excess of $100,000.00 whereby the State Contractor 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 Third-Party Contractor will not discriminate against employees or applicants for employment because of race, creed, color, national origin, sex, age, disability or marital status, and will undertake or continue existing programs of affirmative action to ensure that minority group members and women are afforded equal employment opportunities without discrimination. Affirmative action shall mean recruitment, employment, job assignment, promotion, upgradings, demotion, transfer, layoff, or termination and rates of payor other forms of compensation; (b) at the request of theState, the Third-Party 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 Third-Party Contractor's obligations herein; and (c) the Third-Party Contractor shall state, in all solicitations or advertisements for employees, that, in the performance of the 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. The Third-Party Contractor will include the provisions 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 'Work") except where the Work is for the beneficial use of the Third-Party 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 Third-Party Contractor or subcontractor with the requirements of any federal law concerning equal employment opportunity which effectuates the purpose of this section. The State shall determine whether the imposition of the requirements of the provisions hereof duplicate or conflict with any such federal law and if such duplication or conflict exists, the State shall waive the applicability of Section 312 to the extent of such duplication or conflict. The Third.Party 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. 11. 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. 12. GOVERNING LAW. This Contract shall be governed by the laws of the State of New York except where the Federal supremacy clause requires otherwise. 13. NO ARBITRATION. Disputes involving this Contract, including the breach or alleged breach thereof, may not be submitted to binding arbitration (except where statutorily authorized), but must, instead, be heard in a court of competent jurisdiction of the State of New York. 14. SERVICE OF PROCESS. In addition to the methods of service allowed by the State Civil Practice law & Rules ("CPLR"), in any litigation arising under or with respect to this Contract, the Third-Party Contractor hereby consents to service of process upon it by registered or certified mail, return receipt requested. Service hereunder shall be complete upon the Third-Party Contractor's actual receipt of process or upon the receipt, by the entity attempting service on the Third-Party Contractor, of the return thereof by the United States Postal Service as refused or undeliverable. The Third- Party Contractor must promptly notify the State Contractor, in writing, of each and every change of address to which service of process can be made. Service to the last known address of the Third-Party Contractor shall be sufficient. The Third-Party Contractor will have thirty (30) calendar days after service hereunder is complete in which to respond. 15. PROHIBITION ON PURCHASE OF TROPICAL HARDWOODS. The Third-Party Contractor certifies and warrants that all wood products to be used under this Contract award will be consistent with, but not limited to, the provisions of State Finance law 5165 (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 Third-Party 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 Third-Party Contractor will indicate and certify in the submitted bid proposal that the subcontractor has been informed and is in compliance with the language regarding use of tropical hardwoods as detailed in State Finance law 5165. 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 Third-Party Contractor to meet with the approval of the State. 16. MACBRIDE FAIR EMPLOYMENT PRINCIPLES. Consistent with the provisions of the MacBride Fair Employment Principles (Chapter 807 of the laws of 1992), the Third- Party Contractor hereby stipulates that the Third-Party 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. 17. 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 -- 7 th Floor Albany, New York 12245 Telephone: 518-292-5220 A directory of certified minority and women-owned business enterprises is available from: NYS Department of Economic Development Division of Minority and Women's Business Development 30 South Pearl St -- 2nd Floor Albany, New York 12245 http://www.empire.state.ny.us Consistent with the provisions of Omnibus Procurement Act of 1992, by signing this bid proposal or Contract, as applicable, Third-Party Contractors certify that whenever the total bid amount is greater than $1 million: . (a) The Third-Party Contractor has made reasonable efforts to encourage the partidpation of New York State Business Enterprises as suppliers and subcontractors, including certified minority and women-owned business enterprises, on this project, and has retained the documentation of these efforts to be provided upon request to the State; (b) The Third-Party Contractor has acted consistent with the provisions of the Federal Equal Opportunity Act of 1972 (P.l. 92-261), as amended; (c) The Third-Party Contractor agrees to make reasonable efforts to provide notification to New York State residents of employment opportunities on this project through listing any such positions with the Job Service Division of the New York State Department of Labor, or providing such notification in such manner as is consistent with existing collective bargaining contracts or agreements. The Third-Party Contractor agrees to document these efforts and to provide said documentation to the State upon request; and (d) The Third-Party 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. 18. 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, consistent with the provisions of the Omnibus Procurement Act 1994 and 2000 amendments (Chapter 684 and Chapter 383, respectively), they will 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. 19. PURCHASES OF APPAREL. Consistent with the provisions of State Finance Law ~162 (4-a), the State and the State Contractor 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), if known, the names and addresses of each subcontractor and a list of all manufacturing plants to be utilized by the bidder. APPENDIX E Standard Clauses for All New York State Department of Environmental Conservation Contracts The parties to the attached contract, license, lease, grant, amendment or other agreement of any kind (hereinafter "the contract" or "this contract") agree to be bound by the following clauses which are hereby made a part of the contract. The word "Contractor" herein refers to any party to the contract, other than the New York State Department of Environmental Conservation (hereinafter "Department"). I. Postponement, suspension, abandonment or termination by the Department: The Department shall have the right to postpone, suspend, abandon or terminate this contract, and such actions shall in no event be deemed a breach of contract. In the event of any termination, postponement, delay, suspension or abandonment, the Contractor shall immediately stop work, take steps to incur no additional obligations, and to limit further expenditures. Within 15 days of receipt of notice, the Contractor shall deliver to the 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. In any of these events, the Department shall make settlement with the Contractor upon an equitable basis as determined by the Department which shall fix the value of the work which was performed by the Contractor prior to the postponement, suspension, abandonment or 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. and III. Intentionally deleted. IV. Requests for Payment: All requests for payment by the Contractor must be submitted 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. 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. 21 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, mitior repair or renovation of real property and improvements thereon; then (c) The affirmative action provisions and equal employment opportunity provisions contained in this paragraph and paragraphs (d) and (e) of this clause shall be applicable within the limitations established by Executive Law 99312 and 313 and the applicable regulations. (I) The Contractor is required to make good faith efforts to subcontract at least 8.8% of the dollar value of this contract to Minority Owned Business Enterprises (MBEs) and at least 8.8% 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 10% of, and women for at least 10% of, the workforce hours required to perform the work under this contract. (3) The Contractor is required to make good faith efforts to 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: (212) 803-3223 internet: www.empire.state.ny.uslesd.htm (d) The Contractor agrees to include the provisions set forth in paragraphs (a), (b) and (c) above and paragraphs (a), (b), and (c) of clause 12 of Appendix A in every subcontract in such a manner that the provisions will be binding upon each Subcontractor as to work under such subcontract. For the purpose of this paragraph, a "subcontract" shall mean an agreement providing for a total expenditure in excess of $25,000 for the construction, demolition, replacement, major repair, renovation, 22 planning or design ofreal property and improvements thereon in which a portion of the Contractor's obligation under a State contract is undertaken or assumed. (e) The Contractor is required to make good faith efforts to utilize the MBE/WBEs identified in the utilization plan to the extent indicated in such plan, and otherwise to implement it according to its terms. The Contractor is requested to report on such implementation periodically as provided by the contract, or annually, whichever is more frequent. VIII. Compliance with applicable laws: (a) Prior to the commencement of any work under this contract, the Contractor is 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 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 Department 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. and X. intentionally deleted. XI. Offset: In accordance with State Law, the Department has the authority to administratively offset any monies due it from the Contractor, from 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. XII. Intentionally deleted. XIII. Litigation Support In the event that the Department becomes involved in litigation related to the subject matter of this contract, the Contractor agrees to provide background support and other litigation support, including but not limited to depositions, appearances, and testimony. Compensation will be negotiated and based on rates established in the contract, or as may otherwise be provided in the contract. XIV., XV., XVI., and XVII. intentionally deleted. XVIII. Freedom ofInformation 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 ofInformation Law. The Department will provide the contractor with an opportunity to identify material which may be protected from release and to support its position. XIX. intentionally deleted. 23 RESOLUTION 2006-414 ADOPTED DOC ID: 1808 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2006-414 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON MAY 9, 2006: RESOLVED that the Town Board ofthe Town of Southold hereby authorizes and directs Supervisor Scott A. Russell to execute an A!!reement with the New York State Environmental Facilities Corporation. in the amount of $35,000, for fundin!! under the Clean Vessel Act Assistance Pro!!ram for a Pump-Out Boat for Fishers Island, all in accordance with the approval of the Town Attorney. Pt~Cl.r;e,4t.. Elizabeth A. Neville South old Town Clerk RESULT: ADOPTED [UNANIMOUS) MOVER: Thomas H. Wickham, Councilman SECONDER: Louisa P. Evans, Justice AYES: Evans, Wickham, Ross, Edwards, Russell, Krupski Jr.