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HomeMy WebLinkAboutContract C303426-PRELIMINARYRESOLUTION 2008-361 ADOPTED DOC ID: 3767 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2008-361 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON APRIL 8, 2008: WHEREAS, the Town Board of the Town of Southold (hereinafter called the "Municipality"), after thorough consideration of the various aspects of the problem and study of available data, has hereby detemfined that certain work (stormwater remediation projects), as described in the State Contract (hereinafter called the "Project") is desirable, in the public interest, and is required in order to study and/or implement the local project or programs; and WHEREAS, under Chapter 50, Section 1 of the Laws of 2007 relating to the Local Assistance Budget, the Legislature has authorized financial assistance to localities for services and expenses related to local projects, program and studies by means ora written agreement; and WHEREAS, the Municipality has examined and duly considered Chapter 50, Section I of the Laws of 2007 relating to the Local Assistance Budget and deems it to be in the public interest and benefit under this law to enter into a contract therewith. NOW, THEREFORE, BE IT RESOLVED BY the Town Board of the Town of Southold as follows: 1. That Supervisor Scott A. Russell is directed and authorized as the official representative to act in connection with any contracts between the Municipality and the State~ and to provide such additional information, as may be required. 2. That one (1) certified copy of this Resolution be prepared and sent to the New York State Department of Environmental Conservation, Albany, New York, together with the State Contract. 3. That this Resolution take effect immediately. Elizabeth A. Neville Resolution 2008-361 Board Meeting of April 8, 2008 Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Louisa P. Evans, Justice SECONDER: Thomas H. Wickham, Councilman AYES: Ruland, Orlando, Kmpski Jr., Wickham, Evans, Russell Updated: 4/7/2008 10:31 AM by Lynne Krauza Page 2 SIGNATURE PAGE CONTRACT NO.: C303426 IN WITNESS WHEREOF, this contract has been duly executed by the parties hereto on the day and year appearing following their respective signatures. By the signature hereunder, the Recipient represents that it has the legal status necessary to enter into this Contract and that the person signing is authorized to do so as evidenced by the resolution attached hereto. Authorized Representative: ~ ~ dV"~( ~- (print name) ~ Dated: Jo9 '- .2 ~ C7C~ (signature) 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. NYS Department of Environmental Conservation Approved: (print name) Dated: (signature) Attorney General Approved: (print name) (signature) State Comptroller Approved: Thomas P. DiNapoli Dated: Dated: (print name) (signature) 7 Recipient: Please complete the acknowledgment below and attach a certified copy of the order, resolution, or ordinance authorizing execution of this Contract. Thank you MUNICIPAL ACKNOWLEDGMENT (For use by Municipalities and Other Municipal Agencies) County of _~'-/~(-'-~ f[(-~) ) SS.: . Onthe offn~/d_ayof (/~Off--. in the year ,~ ~ Fbefore me personally !ame 5 '~..o"~ ~cl. ~&.CCO [ f (Insert name and title) ofae ~o~ ,~ ~ ~- ~c~ (Insert political subdivision or agency of the political subdivision) the politicM su~ivision or agency ~e~of described in and which ex~uteO ~e above ins~ment; by au~ofi~f ~_. '~/~ ~ ~ (attached cert~ed copy of order, resolution, or the ordinance authorizing the execution of this conlracO of ~id ~litiml suMivisioa ~d ~t (s)he si~ed hi.er n~c by ~e au~ori~. Notary Seal LINDA J COOPER NOTARY PUBLIC, State of New Yo~I~ NO. 01CO4822563, Suffolk Cou~.t~ Term Expires December 31,20d ~ ~L_c)Z~ (~ ~.t'z,~./t }~ota[yPublic SCHEDULE B - PROGRAM BUDGET Aid to Localities Grant Contract # C303426 $75,000 (Staff oversight for entire Plan) $75,000 Personnel Supplies & Materials $188,000 $336,000 $524,000 (BMPs H-14~ (BMPs H-5, H-7, HI9) Contractual Services H-22A, and H-22B) $47,110 (7% $47,110 O&M of Equipment entire project) Travel Other (not incl. above) Description: $188~000 $122,110 $336,000 $6't6,110 TOTAL *Please note that this $188,000 Aid to Localities will only cover a portion of Hashamomuck Plan projec~I 3 of 7 identified BMPs. The Town has been awarded $336,000 through the NYSDOS LWRP Grant program to support the implementation of another 3 identified BMPs, as reflected in the "Other 3rd Party Contribution" column. Funds for the i remaining BMP are not reflected in this budget table. The Town has committed Town employee time for project management and oversight, and Town equipment for operation and maintenance (estimated to be 7% of BMP costs as per the PEP Hashamomuck Watershed Management Plan), as reflected in the "Grantee Funds" column. STATE ASSISTANCE GRANT CONTRACT NO.: C303426 This Contract is hereby made between the State of New York Department of Environmental Conservation (Department) with offices at 625 Broadway, Albany, New York, 12233-1080 and the Town of Southhold (herein referred to as the "Recipient") with offices at P.O. Box 1179, Southhold, New York 11971. WITNESSETH: WHEREAS, the Department has jurisdiction over and is responsible for the protection of the environmental resources of the State; and WHEREAS, the Legislature appropriated $196,000 to the Town of Southhold as provided for in the Executive Budget, General Fund/Aid to Localities - Local Assistance Account 001 for State Fiscal Year (SFY) 2007-2008. This funding is to provide assistance for the Peconic Bay Estuary Program; and WHEREAS, the Recipient represents that it has the legal status necessary to enter into this Contract, and has filed with the Department a certified copy of a duly adopted resolution of its own governing body which authorizes an individual to enter into and execute this Contract with the Department on behalf of the Recipient, for the purpose of receiving state assistance; and WHEREAS, the Recipient is ready, willing and able to enter into such a Contract and possesses or can make available all necessary qualified personnel, licenses, facilities and expertise to perform, or have performed the activities required pursuant to the terms of this Contract: NOW, THEREFORE, in consideration of the promises, mutual covenants and conditions contained herein, the Department and the Recipient agree as follows: ARTICLE 1. CONTRACT AMOUNT: The Department agrees to make available to the Recipient a sum not to exceed $196,000 for payment of eligible Project costs in strict accordance with "Schedule A - Program Narrative" (herein referred to as the "Project") which is attached to and made a part of this Contract. ARTICLE 2. CONTRACT BUDGET: a. The Recipient agrees that the Project amount as shown in "Schedule B - Program Budget" which is attached to and made a part of this Contract is an estimate. If the actual eligible costs of the Project incurred by the Recipient is less than the eligible costs set forth in Schedule B, the Department shall reimburse the Recipient for either the not to exceed amount set forth in Article 1, or the actual approved eligible costs, whichever is lower. No amendment to this Contract shall be necessary to effectuate this modification. b. The Recipient shall spend funds paid to it under this Contract in strict accordance with Schedule B, and agrees to expend these funds in total accord with all applicable State, federal and local laws, rules and regulations. ARTICLE 3. CONTRACT TERM: The term of this Contract shall commence on April 1, 2007 to March 3!, 2012, and shall become effective upon approval of the Office of the State Comptroller (herein referred to as "Comptroller"). ARTICLE 4. GENERAL CONDITIONS: a. This Contract consists of the following documents, in the following order of precedence: Appendix A - Standard State clauses Appendix B - Standard Department clauses The Contract Schedule A - Program Narrative Schedule B - Program Budget b. The Recipient shall perform under this Contract to the satisfaction of the Department, and shall provide services, complete activities and meet Project objectives summarized in Schedule A in accordance with provisions of this Contract. c. The Recipient agrees to obtain all required permits, including but not limited to, local, state and federal permits prior to the commencement of the applicable stages(s) of the Project as defined in Schedule A. d. The Recipient agrees that all work performed in relation to the Project by the Recipient or its agents, representatives, or contractors will comply with all relevant federal, state and local laws, roles, regulations and standards, zoning and building codes, ordinances, operating certificates for facilities, or licenses for an activity. e. if the Recipient enters into subcontracts for the performance of work pursuant to this Contract, the Recipient remains liable for compliance with all the terms of this Contract. For subcontracts which are not competitively bid, documentation must be submitted as to the reasonableness of all payments made under the Contract. f. It is the Recipient's responsibility to have all construction contract plans, specifications and cost estimates certified by a professional engineer licensed to practice in the State of New York. All certified plans and specifications shall become part of this Contract and shall be kept on the project site at all times. g. Services performed pursuant to this Contract are secular in nature and shall be performed in a manner that does not discriminate on the basis of religious belief or promote or discourage adherence to religion in general or particular religious beliefs. h. Funds provided pursuant to this Contract shall not be used for any partisan political activity or for activities that may influence legislation or the election, or defeat of any candidate for public office. i. The Recipient is nonsectarian and shall not at any time, sell or convey any real property or facility developed pursuant to this Contract, nor shall the Recipient convert such real property or facility to any other use other than the public nonsectarian use, as specified in the Schedule A, without the express written authority of the Department. j. Facilities developed or equipment purchased pursuant to this Contract, upon request, shall be made available at any reasonable time for inspection by the Department. k. The Recipient agrees that it will not receive reimbursement from other sources for any expenditures funded under this Contract except in accordance with the provisions of this Contract. l. Any equipment, furniture, supplies or other property purchased with funds provided hereunder, cannot be 2 sold, transferred or used for purposes other than stated in this Contract, without the written approval of the Department. ARTICLE 5. PAYMENT AND REPORTING a. The maximum amount payable under this Contract is $196,000. Eligible expenditures for the Project are those expenditures which are identified in Schedule B - Program Budget and which are in accordance with the applicable appropriation or re-appropriation authority. b. Project cost overruns will not be paid by the Department and the Department is not committed to seeking additional appropriations or re-allocation of funds and will not be responsible for the maintenance and operation of any facility which may be developed. c. The Recipient shall be responsible for coordinating and maintaining financial tracking records tbr the total cost of the approved project. The Recipient shall submit to the Department properly documented claims for reimbursement accompanied by such receipts and documents verifying expenditures incurred within the project term of this Contract, and as may be required by the Department and by the Comptroller. d. The Department shall review the Recipient's financial documentation and a payment shall be made in accordance with requirements established by the Department and upon audit and approval of the Comptroller of vouchers executed by an authorized officer of the Recipient. e. The Department shall not be liable for expenses and obligations arising from the Project after the contract termination date. f. The Recipient shall issue a certificate of completion of the Project and submit a final voucher to the Department within 30 days of the completion of said Project or within 30 days of the expiration of this Contract. The Department will conduct a final review of the Project, which may include an on-site inspection, at a time satisfactory to the Department. If the Project is not complete by the term end date of the Contract, the Department may request a complete accounting of expenditures on the Project. g. The Recipient will be required to make a refund to the Department of any portion of amounts advanced under this Contract which are not used or needed to accomplish the Project, based on the Department's determination. If the Recipient fails to submit a final report within ninety (90) days after the expiration of this Contract, further reimbursements may be withheld by the Department, and upon a determination by the Department that the Contract has been abandoned, all funds previously advanced under this Contract may be due and owing. h. A final payment will be made to the Recipient only upon the satisfactory determination by the Department of the final eligible amount of the Project. Determination of the final eligible amount of the Project will be based upon the Department's review of the Recipient's final voucher submission. ARTICLE 6. PROJECT COMPLETION AND TERMINATION a. The Recipient shall complete the Project as set forth in this Contract, and failure to render satisfactory progress or to complete the Project to the satisfaction of the Department may be deemed an abandomnent of the Project and cause for the suspension or termination of any obligation to the Department. In the event the Recipient should be deemed to have abandoned the Project for any reason or cause other than a national emergency or an Act of God, all monies paid to the Recipient by the Department shall be repaid to the 3 Department within one year or 365 days after such demand. If such monies are not repaid within one year or 365 days after such demand, the Commissioner of the Department may request the Comptroller to cause an amount equal to the monies defined herein and paid to the Recipient to be withheld from any state assistance to which the Recipient would otherwise be entitled. b. Notwithstanding the foregoing, and provided the public will receive a benefit from the Project, as completed, the Department, at its option, may require repayment of only those funds not expended in accordance with the terms of this Contract. c. The Recipient agrees to indemnify, save and hold harmless the State of New York and the Department in accordance with Clause II of Appendix B, referred to in this Contract. d. The Department may terminate the Contract immediately upon 30 days written notice if the Recipient fails to comply with the material terms and conditions of this Contract and/or with any laws, rules, regulations, policies or procedures affecting this Contract. e. Written notice of termination, where required, shall be sent by personal messenger service or by certified mail, return receipt requested. The termination shall be effective in accordance with the terms of the notice. f. Upon receipt of notice of termination, the Recipient agrees to cancel, prior to the effective date of any prospective termination, as many outstanding obligations as possible, and agrees not to incur any new obligations after receipt of the notice without approval of the Department. ARTICLE 7. CREDITS In recognition of a portion of Department funds made available for the Project, the Recipient agrees that any identifying signs will note that portions of this Project were funded by New York State Department of Environmental Conservation. ARTICLE 8. COPYRIGHT MATERIALS The Department shall have title to and the right to determine the disposition of any copyrights, or copyrightable materials, relative to this Contract provided the Department will grant to the Recipient an irrevocable, royalty- free, non-exclusive right to reproduce, translate and use all such materials for its own purposes. ARTICLE 9. SITE VISITS The Department shall have the right to conduct an on-site review of the Project and/or books and records of the Recipient prior to, and for a reasonable time following issuance of the final payment. ARTICLE 10. NOTICES Wherever it is provided in this Contract that notice shall be given or other written communications sent to the Department or the Recipient, such notices or communications shall be delivered or sent to: Department: Lorie King Grants-In-Aid Program Administrator NYSDEC - Division of Management and Budget Services 625 Broadway - 10th Floor Albany, New York 12233-1080(DEC contact name and address) Notices to the Recipient shall be sent to the following address: Mark Terry Director of Environmental Programs Town of Southhold P.O. Box 1179 Southhold, New York 11971 5 SCHEDULE A PROGRAM NARRATTVE FOR Town of Southold Stormwater Remediation Projects CONTRACT #C303426 OB.IECTI'VE AND NEEDS FOR THE ASSI'STANCE [mplementing specific stormwater remediatJon projects as identified in the Peconic Estuary Program "Hashamomuck Pond Watershed Management Plan" (available at: hti;_!~/.Zpeconicestuary.or.g/Hashamomuck Final re_l~O_rt.p_d[ ), will protect and restore the ecological, economic and aesthetic integrity of the Hashamomuck Pond system, watershed, and its resources. The objectives are to improve water quality, re-open closed shellfishing waters and preventing future closures, and enhance critical habitat, identified problems include: 1. Water Quality [mpairments- Hashamomuck Pond (NYSDEC PWL 1701-0162) is a New York State impaired waterbody. The known pollutant is pathogens and the known contributing source is urban runoff. A Total Maximum Daily Load (TMDL) was developed and approved by the USEPA in September 2006. 2. Closed Shellfishing Waters- Hashamomuck Pond boasts the most productive clam bed in Southold, and is known as one of the most productive shellfish harvesting areas on the East End of Long Island. All of the waters within SGA (Shellfish Growing Area) 23 experience some level of closure; some considered uncertified and the majority seasonally certified December 1- April 1. 3. Habitat Threats- Hashamomuck Pond is a NYS DOS Significant Coastal Fish and Wildlife Habitat, a USFWS Northeast Coastal Areas Study Ecological Complex, and a Peconic Estuary Program Critical Natural Resource Area. [ts 200+ habitat acres are of local, state-wide, and regional significance and the species it supports are threatened by polluted runoff. RESULTS OR BENEFITS EXPECTED Southolds expected achievable results/benefits include: 1. Remediate Nonpoint Source and Stormwater Pollution. Intercepting road runoff before it enters into Hashamomuck Pond by constructing stormwater best management practices (BMP's) designed to foster filtration, infiltration or detention of polluted stormwater runoff. 2. Improve Overall Water Quality of the Pond. The NYSDEC PWL identifies the Pond as having a High Resolution Potential; 'The water quality problem has been deemed worthy of the expenditure of available resources because of the level of public interest and expectations that the commitment of these resources will result in measurable improvements in the situation". 3. improve Habitat Value. The open water, tidal and freshwater wetlands, and woodlands in the Hashamomuck Pond watershed are threatened by stormwater runoff pollution. Stormwater runoff can carry pollutant as nutrients, pathogen and toxic substances; all which can threaten the health of these various habitats and consequently those species that depend on them. 4. Re-open Closed Shellfishing Waters. Stormwater management efforts in this watershed have a high potential of reopening closed shellfishing waters. 5. Improve Recreational Enjoyment and Utilization of the Pond 6. Foster Community Awareness and Understanding of Stormwater Issues APPROACH A. Planning Funding will implement 3 out of 7 BMP's that have been identified in the Hashamomuck Pond Watershed Management Plan (July 2006) prepared for Peconic Estuary Program by the Horsley Witten Group. Below are descriptions of the three plans. Site H-14 - Dons Way Site H-14 is a private cottage community overlooking Hashamomuck Pond in sub watershed H-14. There is no formal drainage system on site. instead, runoff ponds in Iow lying areas and drains off the roadway to Hashamomuck Pond. The paved roadway servicing this community is in poor condition and needs to be upgraded for the proposed BMP concept. The contributing drainage area for treatment is 0.:[3 acres of which all is from the paved roadway. The proposed BMP for this site are grass channels on both sides of the roadway, newly paved with proper cross slopes leading to a bioretention system at the end of the roadway. The conceptual layout and all associated forms and site photos can be found in Appendix D-4. See attached. The site is a privately owned community, with little incentive for stormwater improvements. Site H-22A - Intersection of Grove Road & Mill Creek Drive This site is located in sub watershed H-22 and has an existing drainage network that outlets into an existing vegetated channel, which is tidally influenced. There are two catch basins in the vicinity, one directly connected to the outfall and the other across the roadway from the outfall. The drainage area contributing to these two catch basins is approximately 4.48 acres of which 20% is impervious, in addition to the above drainage area, the existing outlet maybe connected to a larger system upstream from this sub watershed. The proposed BMP for this site has two components. One is a micro-bio inlet at the corner of Mill Creek Drive and Grove Road to treat the runoff from the roadways prior to discharge into the existing vegetated swale. The other BMP is a sediment forebay with stone check dams in the existing vegetated channel. This will help reduce the amount of sediment entering Hashamomuck Pond. The conceptual layout and all associated forms and site photos can be found in Appendix D-6. See attached. This area is adjacent to a public boat launch, which provides great public education opportunities for the Hashamomuck Pond watershed. Site H-22B - Grove Road Site H-22B is located in sub watershed H-22. This site is situated on Grove Road, east of Site H-22A. This area experiences frequent flooding during storm events. There are new infiltrating catch basins located at this site which replaced failed infiltrating catch basins. The drainage area contributing to this BMP site is approximately 1.34 acres of which 25 % is impervious. The proposed BMP for this site includes a series of dry swales along both sides of the roadway to pretreat the stormwater runoff prior to overflowing into a catch basin. The existing infiltrating catch basin will be removed and replaced with deep sump catch basins. The overflow from the catch basins will be directed to an oil/grit separator prior to being discharged to a new outlet into Hashamomuck Pond. The proposed overflow mechanism will help alleviate flooding to adjacent properties during large storm events. The conceptual layout and all associated forms and site photos can be found in Appendix D-7. See attached. At this site the Town must obtain a drainage easement between homes to install the new outfall into Hashamomuck Pond. To install the above treatment systems the Town will need to bid out for construction companies through the RFB process. Town Engineer .]ames Richter will prepare a site plan for each BMP project; The Planning Department will apply for the necessary permits. The Town Attorney will do the legal work required. See the attached Table 4-! for the estimated costs. B. Schedule April 2008 Upon receipt of the grant the Town Engineer will prepare site plans and bidding documents for each project. June 2008 The Town will advertise work out to bid for each project. August 2008 The Town Board willauthorize bids on recommendation oftheTown Engineer and Town A~orney. September 2008 After successful bidder is authorized by the Town Board construction will commence. December 2008 Construction will be completed. C. toni;roi I~lark Terry, Principal Planner and LWRP Coordinator will be in charge of managing the grant. Patricia Finnegan, Town Attorney, will be responsible for insuring the legality and completeness of the contracts. James Richter, The Town Engineer, will complete the site plans for the projects. He will also be responsible for ensuring that construction is accomplished in accordance with the specifications of the plans. GEOGRAPHTC LOCAT;[ON This project will take place in Hashamomuck Pond, within the Peconic Estuary, a USEPA recognized "Estuary of National Significance". Hashamomuck Pond is located in the Town of Southold, New York located on the eastern tip of the North Fork of Long Island. OTHER FUNDZNG SOURCE~ RelatJonshio between this Project and Other Work The Peconic Estuary Program coordinates many nonpoint source control projects throughout the program area to reduce nitrogen and pathogen loadings, especially through stormwater management efforts. The Town of Southold is committed to partnering with the estuary program to implement these controls and complying with reduction requirements as mandated by both the Peconic Nitrogen and Pathogen Total Maximum Daily Loads (TMDLs). Hashamomuck Pond is a 303d listed impaired waterbody addressed by these TMDLs. Tn 2008, the Town of Southold will now be required to obtain permit coverage from NYSDEC under the Phase IT ~4S4 stormwater program. Tn recent years, over $2.8 million has been invested by Southold and Suffolk County to protect and restore the Hashamomuck Pond Watershed through land preservation, aquatic habitat restoration and stormwater remediation projects. Grant as Part of a Laroer Proiect Tmplementing all seven (7) of the stormwater BMP's identified in the 2006 PEP Hashamomuck Pond Watershed Management Plan has been estimated to cost approximately $673,000. This $200,000 NYS Aid to Localities would implement 3 of the 7 BMPs: H-~_4, H-22A, and H-22B (estimated to cost approximately $224,000). Funding has been requested for 3 of the remaining 4 BNPs (H-5, H-7, H-9 and estimated to cost approximately $336,000) under the New York State Department of State Local Waterfront Revitalization Program. Additional funding for the ! remaining BI'4P (H-18 and estimated to coast approximately $1:[3,000) is currently being sought. PecOnic Bay Estuary Stormwater Retrofit Reconnaissance Inventory 1. Site Number: H-14 2. Location (Address and/or Parcel ID) Dons Way 3. Description (preliminary assessment of most likely retrofit-quality, quantity, or both): Retrofit for water quality. 4. Unique elements of retrofit (e.g., method of conveyance or stormwater diversion): Grass channel alonq both sides of the roadway. New pavement may be required to direct flows accordinqly. Bioretention at the end of the association for treatment prior to beina discharoed into Hashamomuck Pond 5. Date of Preliminary Survey: 6. Property Ownership (public or private): 7. Drainage Area: 0.2 acre 8. Approximate imperviousness (%): 9. Adjacent Land Use (Possible conflicts): g/13/05 Private 100% At the end of the association there are two very larqe trees. 10. Conflicts with Existing Utilities: None observed 11. Construction and Maintenance Access: Excellent 12. Wetlands Present? [] Yes [] No If yes, describe: At the shore of Hashamomuck Pond there is some wetland olants and a salt marsh. 13. Retrofit Volume Computations: 90% Rule: WOV = [(P3 (Rv) (A)I / 12 Rv = 0.05+0.009(l) wov: r(p) ( 0.05+0.009(I)3 fA/1 / 12 WOV = [(1.2") (0.05+0.009(100)) (0.2)]/12 WOV = 0.02 acre-ftc _= 621 cf 14. Photo # H14-NSA J:\4094 Peconic Bay Estuary\reports\tlashamomuck Pond\Appendix E tl-14\RetrofiL lnventory_.Sile H-14.doc Horsley Witten Group D-15 Legend ~nfrastTucture Coordination, Spring 2004 Proposed BMP Drainage Areas © Infiltration Catch Basin N Best Mangement Practices (BMP) Sites ~ Grass Channels ~ Site Location ~ Hashamomuck Pond Watershed Town of Southold ~ Bioretention ~eet 7/11/06 EC 75 J:~J4 Pe~Nc Bay Estuer3AGIS~MP_S~e$1 Figure D-4 Peconic Bay Estuary Stormwater Retrofit Reconnaissance [nventory 15. Additional Notes and/or Sketch Information: Dons Way Colony) Proposed Bioretention (-440 sO Proposed Grass Channel Existing Trees (save) ~ Hashamomuck Pond 16. Site Candidate for Further Investigation: [] Yes [] No J:,4094 Peconic Bay ~st ary\reporls'~ll~,~ham~m~ucl< Pond\Appendix E l[-14\Retrofil lrlVeillory Site 11-14.doc Horsley Witten Group D-16 Peconic Bay Estuary Stormwater Retrofit Reconnaissance ~nventory 1. Site Number: H-22A 2. Location (Address and/or Parcel ID) Grove Road 3. Description (preliminary assessment of most likely retrofit-quality, quantity, or both): Retrofit for water quality 4. Unique elements of retrofit (e.g., method of conveyance or stormwater diversion): Micropool at; outfall location with stone check dam. Micro-bioretention 6. 7. 8. 9. Date of Preliminary Survey: Property Ownership (public or private): Drainage Area: Approximate imperviousness (%): 4.48 acres 20.1% Adjacent Land Use (Possible conflicts): 9/12/05 Public in R.O.W. Pdvate Property 10. Conflicts with Existing Utilities: Overhead Dower lines, Dublic water main. 11. Construction and Maintenance Access: Good 12. Wetlands Present? [] Yes [] No If yes, describe: Existing wet channel, that is tidally influenced at the outfall location. 13. Retrofit Volume Computations: 90% Rule: WOV = [(P) (Rv) (A)] / 12 Rv : 0.05+0.009(I) WOV : [(P~ ( 0.05+0.009(IB (All / 12 wov = r¢1.2") ( 0.05+0.009(20/} (4.5/1/12 WOV = 0.1035 acre-ft =_ 4500 cf J:\4094 Peconic Bay l!stuat),\reports\Retrofit Inventory\llasimnmmuck Pond\Retrofit_Inventory Site ll-22A.doc Horsley Yr'itten Group D-22 Peconic Bay Estuary Stormwater Retrofit Reconnaissance Inventory 14. Photo # H22A-1 & H22A-2 15. Additional Notes and/or Sketch Information: * Note: Alter existing vegetated channel to have a micropool to help settle out sediments and construct stone check dams to slow the flow down and prevent erosion. Construct a small scale bioretention system (Micro-Biomtention) with a stone curtain to settle out sediments prior to being treated in the filter media. The overflow will drain into the existing drainage network. Existing Catchbasin Existing Grated Manhole -'--"~,,,, Proposed ~/ Grove Rd. , Overflow ~ f 3' high - 3' diameter · _ . / , ~ J SteelBollard Proposed Micro-Bio Inlet w/ ~ o - ~ . ~ . Stone Curtain ~~:~ ~"~Existlng 36" CMP Transition Pavement - / ~. , ~ .... ~pool ~ ~$~ to match New work / .... - L-~ , ~k ~ ~ ~ ~ (Se~men~orebav430 s~ ~ ~ ~ . ~ Existing Vegetated / / ~po~eq ~afiq ~ ~ Channel ~Mill Creek D~l~ti~s' m ~ Aa&d I (Tidal Influenced) Proposed Stone Check Dam 16. Site Candidate for Further Investigation: [] Yes [] No J:"4094 Peconic l/ay Es t ary\reports'~Relrofit Inven'tor_%l )ashamolmlclc PondkRetrofit Invenlory Site }l-22A.doc Horsley Witten Group D-23 Legend Proposed BMP Drainage Areas ~:- Micro-biolnlet ~ Sediment Forebay ~ Stormdrain Conveyance Systems · Outfalls [] Outlet Catchbasin © Infiltration Catch Basin · Drywells Source: Aerial Photo, NYS Office of Cyber Security & Critical Infrastructure Coordination, Spdng 2004 Site Location N 150 Feet [-Im'.%l~ \Vilten Group Best Mangement Practices (BMP) Sites Hashamomuck Pond Watershed Town of Southold Hashamomuck Pond H-22A Exist nq Ve,qetated Channel (Northwest) H-22A Ex st n,q Ve,qetated Channel (South) D-25 Peconic Bay Estuary Stormwater Retrofit Reconnaissance ~nventory 1. Site Number: H-22B 2. Location (Address and/or Parcel ID) Grove Road 3. Description (preliminary assessment of most likely retrofit-quality, quantity, or both): Retrofit fro water quality 4. Unique elements of retrofit (e.g., method of conveyance or stormwater diversion): Dry swale along roadway. Conveyance system into existinq infiltratinq catch basin, overflow to an oil/water separator and discharoe into Hashamomuck Pond. 5. Date of Preliminary Survey: 6. Property Ownership (public or private): 7. Drainage Area: 1.3 acres 8. Approximate imperviousness (%): 9. Adjacent Land Use (Possible conflicts): 25% Private 9/12/05 Public in R.O.W. 10. Conflicts with Existing Utilities: Possible underqround water main 11. Construction and Maintenance Access: Good 12. Wetlands Present? [] Yes [] No If yes, describe: 13. Retrofit Volume Computations: 90% Rule: W0V = [(P3 (Rv3 (A)] / 12 Rv = 0.05+0.009(I) wov = rfP) (0.05+0.009(I)) (A~I / 12 WOV = rfl.2") (0.05+0.009(25)) (1.3)1/12 WQV = 0.04 acre-fo ~ 1,557 cf J:\4094 Peconic Bay Estuary\reports\Hashamomuck Pond\Appendix H H-22B\Retrofi[_Inventory Site H-22B.doc Horsley Witten Group D-26 Peconic Bay Estuary Stormwater Retrofit Reconnaissance ~nventory 15. Photo # Additional Notes and/or Sketch Information: Grove Road Proposed Dry Swales on -- Both Sides of the Roadway (-1400 0 Proposed Drainage ~ Outlet to be Aligned Between Neighboring Houses Existing Infiltrating Catch Basin (to be removed) 80 ft Proposed Oil/Water Separator *Note: Proposed dry swales along both sides of roadway to pre-treat and convey runoff to an overflow grate. Provide culverts at driveway crossings to continue flow. The overflow grate is elevated 4-inch above the bottom of swale to promote infiltration of the first flush storm events. The overflow will be discharged directly into Hashamomuck Pond, this will help resolve some localized flooding during large storm events. Remove the existing infiltrating catch basins. 16. Site Candidate for Further Investigation: [] Yes [] No .1:x4094 Pcconic [3ay, Ir~sluar?reports\llashamomuck PondL,\ppel~dix It I I-2213\.Retrofit Inventory Site 11~22B.doc Horsley Witten Group D-27 Legend Proposed BMP Drainage Areas [~ Dry Swales ~ Stormdrain Conveyance Systems Soume: aeriar Photo, NYS Office of Cyber Security & Crit~al Infrastructure Coordination, Spdng 2004 · Outfalls r~ Site Location L~ Outlet Catchbasin 0 Infiltration Catch Basin N 100 Feet Best Mangement Practices (BMP) Sites mashamomuck Pond Watershed Town of Southold Table 4-1. Summary of Proposed Best Management Practices for the Has~tamomucl; Pond Stormwater Drainage Area, Long Island, New York BMP Captured BMP Estimated Pollutant Removal Efficiency (%) Estimated Costs (for Planning Purposes only) N ~ Hashamomuck Pond Watershed A Aerial Photograph of Hashamomuck Pond _ , . .. :'.'¢.. %---',., .. . h".~'F3 ~ ~ Legend Land Use Categories '~ lcrslcx' Wi~c~a Cr,~up ~ [~ Subwatershed ~ Low Density Res I Open Space Boundaries ~ Med Density Res ~ Agriculture N Land Use within ~ High Density Res F-~ vacant ~ Hashamomuck Pond I Commercial I Transportation Watershed ~ ~ Institutional 0 1100 Feet STANDARD CUtUSES FOR NYS CONTRACTS I~F'EIIBEHI STANDARD CLAUSES FOR NYS CONTRACTS The parties to the atiaehed contract, license, lease, amendment or other agreement of any kind (hereinafter, "the contract" or "this contract") agree to be bound by the following clauses which are hereby made a part of the contract (the word "Contractor" heroin refers to any party other than the State, whether a contractor, licenser, licensee, lessor, lessee or any otber party): 1, EXECUTORY CLAUSE. In accordance with Section 41 of the State Finance Law, the State shall have no liability under this contract to the Contractor or to anyone else beyond funds appropriated and available for this contract. 2. NON-ASSIGNMENT CLAUSE. In accordance with Section 138 of the State Finance Law, this contract may not be assigned by the Contractor or its right, title or interest therein assigned, transferred, conveyed, sublet or otherwise disposed of without the previous consent, in writing, of the State and any a~empts to assign the contract without the State's written consent are null and void. The Contractor may, however, assign its rigttt to mcelve payment without the State's prior written consent unless this contract concerns Certificates of Participation pursuant to Article 5-A of the State Finance Law. 3. COMPTROLLER'S APPROVAL. In accordance with Section 112 of the State Finance Law (or, if this contract is with the State University or City University of New York, Section 355 or Section 6218 of the Education Law), if this contract exceeds $50,000 (or the minimum thresholds agreed to by the Office of the State Comptroller for certain S.UN.Y. and C.U.N.Y. contracts), or if this is an amendment for any amount to a contract which, as so amended, exceeds said statutory amount, or if, by this contract, the State agrees to give something other than money when the value or reasonably estimated value of such consideration exceeds $10,000, it shall not be valid, effective or binding upon the State until it has been approved by the State Comptroller and filed in his office. Comptroller's approval of contracts let by the Office of General Services is required when such contracts exceed $85,000 (State Finance Law Section 163.6.a). 4. WORKERS' COMPENSATION BENEFITS. In accordance with Section 142 &the State Finance Law, this contract shall be void and of no force and effect unless the Contractor shall provide and maintain coverage during the life of this contract for the benefit of such employees as are required to be covered by the provisions of the Workers' Compensation Law. 5. NON-DISCRIMINATION REQUIREMENTS. To the extent required by Article 15 of the Executive Law (also known as the Human Rights Law) and all other State and Federal statutory and constitutional non-discrimination provisions, the Contractor will not discriminate against any employee or applicant for employment because of race, creed, color, sex, national origin, sexual orientation, age, disability, genetic predisposition or carrier status, or marital status. Furthermore, in accordance with Section 220-e of the Labor Law, if this is a contract for the construction, alteration or repair of any public building or public work or for the manufacture, sale or distribution of materials, equipment or supplies, and to tim extent that this contract shall be performed within the State of New York, Contractor agrees that neither it nor its snbcontractors 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 intimida~ any employee hired for the performance of work under this contract. If this is a building service contract as defined in Section 230 of the Labor Law, then, in accordance with Section 239 thereof, Contractor agrees that neither it nor its subcontractom 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 Page 1 performance of work under this contract. Contractor is subject to fines of $50.00 per person per day for any violation of Section 220-e or Section 239 as well as possible termination of this contract and forfeiture of all moneys due hereunder for a second or subsequent violation. 6. WAGE AND ltOURS PROVISIONS. If this is a public work contract covered by Article 8 of the Labor Law or a building service contract covered by Article 9 thereof, neither Contractor's employees nor the employees of its subcontractors may be required or permitted to work more than the number of hours or days stated in said statutes, except as otherwise provided in the Labor Law and as set forth in prevailing wage and supplement schedules issued by the State Labor Department. Furthermore, Contractor and its subcontractors must pay at least the prevailing wage trite and pay or provide the prevailing supplements, including the premium rates for overtime pay, as determined by the State Labor Department in accordance with the Labor Law. 7. NON-COLLUSIVE BIDDING cERTIFICATION. In accordance with Section 139-d of the State Finance Law, if this contract was awarded based upon the submission of bids, Contractor affirms, under penalty of perjury, that its bid was arrived at independently and without collusion aimed at restricting competition. Contractor further affirms that, at the time Contractor submitted its bid, an authorized and responsible pemon executed and delivered to the State a non-collusive bidding certification on Contractor's behalf. 8. INTERNATIONAL BOYCOTT PROIIlBITION. In accordance with Section 220-f of the Labor Law and Section 139-h of the State Finance Law, if this contract exceeds $5,000, the Contractor agrees, as a material condition of the contract, that neither the Contractor nor any substantially owned or affiliated person, firm, partnership or corporation has participated, is participating, or shall participate in an international boycott in violation of the federal Export Administration Act of 1979 (50 USC App. Sections 2401 et seq.) or regulations thereunder. If such Contractor, or any of the aforesaid affiliates of Contractor, is convicted or is otherwise found to have violated said laws or regulations upon the final determination of the United States Commerce Department or any other appropriate agency of the United States subsequent to the contract's execution, such contract, amendment or modification thereto shall be rendered forfeit and void. Thc Contractor shall so notify the State Comptroller within five (5) business days of such conviction, determination or disposition of appeal (2NYCRR 105.4). 9. SET-OFF RIGHTS. The State shall have all of its common law, equitable and statutory rights of set-oiE These rights shall include, but not be limited to, the State's option to withhold for the purposes of set- off any moneys due to the Contractor under this contract up to any amounts due and owing to the State with regard to this contract, any other contract with any State deparlment or agency, including any contract for a term commencing prior to the term of this contract, plus any amounts due and owing to the State for any other reason including, without limitation, lax delinquencies, fee delinquencies or monetary penalties relative thereto. The State shall exercise its set-off rights in accordance with normal State practices including, in cases of set-off pursuant to an audit, the finalization of such audit by the State agency, its representatives, or the State Comptroller. 10. RECORDS. The Contractor shall establish and maintain complete and accurate books, records, documents, accounts and other evidence directly pertinent to performance under this contract (hereinafter, collectively, "the Records"). 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 Contractor June, 2006 STANDARD ~l~ll~ r~ FOR NYS CONTRACTS within the State of New York or, if no such office is available, at a mutually agreeable and reasonable venue within the State, for the term specified above for the purposes of inspection, auditing and copying. The State shall take reasonable steps to protect from public disclosure any of the Records which are exempt from disclosure under Section 87 of the Public Officers Law (the "Statute") provided that: (i) the Contractor shall timely inform an appropriate State official, in writing, that said records should not be disclosed; and (ii) said records shall be sufficiently identified; and (iii) designation of said records as exempt under the Statute is reasonable. Nothing contained herein shall diminish, or in any way adversely affect, the State's right to discovery in any pending or future litigation. 11. IDENTIFYING INFORMATION AND PRIVACY NOTIFICATION. (a) FEDERAL EMPLOYER IDENTIFICATION NUMBER and/or FEDERAL SOCIAL SECURITY NUMBER. All invoices or New York State standard vouchers submitted for payment for the sale of goods or services or the lease of real or personal property to a New York State agency must include the payee's identification number, i.e., the seller's or lessor's identification number. The number is either the payee's Federal employer identification number or Federal social security number, or both such numbers when the payee has both such numbers. Failure to include Ibis number or numbers may delay payment. Where the payee does not have such number or numbers, the payee, on its invoice or New York State standard voucher, must give the reason or reasons why the payee does not have such number or numbers. (b) PRIVACY NOTIFICATION. (1) The authority to request the above personal information from a seller of goods or services or a lessor of real or personal properS, and the authority to maintain such information, is found in Section 5 oftbe State Tax Law. Disclosure of this information by the seller or lessor to tbe State is mandatory. The principal purpose for which the information is collected is to enable the State to identify individuals, businesses and otbers who have been delinquent in filing tax returns or may have understated their tax liabilities and to generally identi~' persons affected by the taxes administered by the Commissioner of Taxation and Finance. The information will be used for tax administration purposes and for any other purpose authorized by law. (2) The personal inforniation is requested by the purchasing unit of thc agency contracting to purchase the goods or services or lease the real or personal property covered by this contract or lease. The information is maintained in New York State's Central Accounting System by the Director of Accounting Operations, Office of the State Comptroller, 110 State Street, Albany, New York 12236. 12. EOUAI, EMPLOYMENT OPPORTUNITIES FOR MINORITIES AND WOMEN. In accordance with Section 312 of the Executive Law, if this contract is: (i) a written agreement or purchase order instrument, providing for a total expenditure in excess of $25,000.00, whereby a contracting agency is committed to expend or does expend funds in return for labor, services, supplies, equipment, materials or any combination of the foregoing, to be performed for, or rendered or furnished to the contracting agency; or (ii) a written agreement in excess of $100,000.00 whereby a contracting agency is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real proper~ and improvements tbereon; or (iii) a wrliten 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, lhen: (a) The Contractor will not discriminate against employees or applicants for employment because of race, creed, color, national origin, sex, age, disability or marital status, and will undertake or continue existing programs of affirmative action to ensure that minority group members and women are afforded equal employment opportunities without discrimination. Affirmative action shall mean recruitment, Page 2 employment, job assignment, promotion, upgradings, demotion, transfer, layoff, or termination and rates of pay or other forms of compensation; (b) at the request of the contracting agency, the Contractor shall request each employment agency, labor union, or authorized representative of workers with which it has a collective bargaining or other agreement or understanding, to furnish a written statement that such employment agency, labor union or representative will not discriminate on the basis of race, creed, color, national origin, sex, age, disability or marital status and that such union or representative will affirmatively cooperate in the implementation of the contractor's obligations herein; and (c) the Contractor shall state, in all solicitations or advertisements for employees, that, in the performance of the State contract, all qualified applicants will be afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability or marital status. Contractor will include the provisions of "a", "b", and "c" above, in every sobeontract over $25,000.00 for the construction, demolition, replacement, major repair, renovation, planning or design of real proper~ and improvements thereon (the "Work") except where the Work is for the beneficial use oftbe Contractor. Sectioh 312 does not apply to: (i) work, goods or services unrelated to this contract; or (ii) employment outside New York State; or (iii) banking services, insurance policies or the sale of securities. The State shall consider compliance by a contractor or subcontractor with the requirements of any federal law concerning equal employment opportunity which effectuates the purpose of this section. The contracting agency shall determine whether the imposition of the requirements of the provisions hereof duplicate or conflict with any such federal law and if such duplication or conflict exists, the contracting agency shall waive the applicability of Section 312 to the extent of such duplication or conflict. Contractor will comply with all dtdy promulgated and lawful rules and regulations of the Governor's Office of Minority and Women's Business Development pertaining hereto. 13. CONFLIC/FING TERMS. In the event of a conflict between the terms of the contract (including any and all attachments thereto and amendments thereof) and the terms of this Appendix A, the terms of this Appendix A shall control. 14. GOVERNING LAW. This contract shall be governed by the laws of the State of New York except where the Federal supremacy clause requires otherwise. 15. LATE PAYMENT. Timeliness o£payment and any interest to be paid to Contractor for late payment shall be governed by Article 1 I~A of the State Finance Law to the extent required by law. 16. NO ARBITRATION. Disputes involving this contract, including the broach or alleged breach thereof, may not be submiited to binding arbitration (except where statutorily authorized), but must, instead, be heard in a court of competent jurisdictlon oftbe State of New York. 17. SERVICE OF PROCESS. In addition to the methods of service allowed by the State Civil Practice Law & Rules ("CPLR"), Contractor hereby consents to service of process upon it by registered or certified mail, return receipt requested. Service hereunder shall be complete upon Contractor's actual receipt of process or upon the State's receipt of the return thereof by the United States Postal Service as refused or undeliverable. Contractor must promptly notify the State, in writing, of each and every change of address to which service of process can be made. Service by the State to the last known address shall be sufficient. Contractor will have thirty (30) calendar days after service bereunder is complete in which to respond. June, 2006 STANDARD Ci.~USES FOR NYS eON11LllCTS AFFfNBB[A 18. PROHIBITION ON PURCHASE OF TROPICAL HARDWOODS. The Contractor certifies and wan'ants that all wood products to be used under this contract award will be in accordance with, but not limited to, the specifications and provisions of State Finance Law § 165. (Use of Tropical Hardwoods) which prohibits purchase and use of tropical hardwoods, unless specifically exempted, by the State or any governmental agency or political subdivision or public benefit corporation. Qualification for an exemption under this law will be the responsibility of the contractor to establish to meet with the approval of the State. In addition, when any portion of this contract involving the use of woods, whether supply or installation, is to be performed by any subcontractor, the prime Contractor will indicate and certify in the submitted bid proposal that the subcontractor has been informed and is in compliance with specifications and provisions regarding use of tropical hardwoods as detailed in §165 State Finance Law. Any such use must meet with the approval of the State; otherwise, the bid may not be considered responsive. Under bidder certifications, proof of qualification for exemption will be the responsibility of the Contractor to meet with the approval of the State. 19. MACBRIDE FAIR EMPLOYMENT PRINCIPLES. In accordance with the MacBride Fair Employment Principles (Chapter 807 of thc Laws of 1992), the Contractor hereby stipulates that the Contractor either (a) has no business operations in Northern lreland, or (b) shall take lawful steps in good faith to conduct any business operations in Northern Ireland in accordance with the MacBride Fair Employment Principles (as described in Section 165 of the New York State Finance Law), and shall permit independent monitoring of compliance with such principles. 20. OMNIBUS PROCUREMENT ACT OF 1992. It is the policy of New York State to maximize opportunities for the participation of New York State business enterprises, including minority and women-owned business enterprises as bidders, subcontractors and suppliers on its procurement contracts. Information on the availability of New York State subcontractors and suppliers is available from: NYS Department of Economic Development Division for Small Business 30 South Pearl St -- 7th Floor Albany, New York 12245 Telephone: 518-292-5220 Fax: 518-292-5884 htr p://www.empire.stute.ny.us A dtrectoD, 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 Telephone: 518-292-5250 Fax: 518-292-5803 hilp://www.empire.state.ny.us The Omnibus Procurement Act of 1992 requires that by signing this bid proposal or contract, as applicable, Contractors certify that whenever the total bid amount is greater than $1 million: (a) The Contractor has made reasonable efforts to encourage the participation of New York State Business Enterprises as suppliers and subcontractors, including certified minority and women-owned business enterprises, on this project, and has retained the documentation of these efforts to be provided upon request to the State; Page 3 (b) The Contractor has complied with the Federal Equal Opportunity Act of 1972 (P.L. 92-261), as amended; (c) The Contractor agrees to make reasonable efforts to provide notification to New York State residents of employment opportunities on this project through listing any such positions with the Job Service Division of the New York State Department of Labor, or providing such notification in such manner as is consistent with existing collective bargaining contracts or agreements. The Contractor agrees to document these efforts and to provide said documentation to the State upon request; and (d) The Contractor acknowledges notice that the State may seek to obtain offset credits from foreign countries as a result of this contract and agrees to cooperate with the State in these efforts. 21. RECIPROCITY AND SANCTIONS PROVISIONS. Bidders are hereby notified that if their principal place of business is located in a country, nation, province, state or political subdivision that penalizes New York State vendors, and if the goods or services they offer will be snbstantially produced or performed otuside New York State, the Omnibus Procurement Act 1994 and 2000 amendments (Chapter 684 and Chapter 383, respectively) require that they be denied contracts which they would otherwise obtain. NOTE: As of May 15, 2002, the list of discriminatory jurisdictions subject to this provision includes the states of South Carolina, Alaska, West Virginia, Wyoming, Louisiana and Hawaii. Contact NYS Department of Economic Development for a current list of jurisdictions subject to this provision. 22. PURCHASES OF APPAREL. In accordance with State Finance Law 162 (4~a), the State shall not purchase any apparel from any vendor unable or unwilling to certify that: (i) such apparel was manufactured in compliance with all applicable labor and occupational safety laws, including, but not limited to, child labor laws, wage and hours laws and workplace safety laws, and (ii) vendor will supply, with its bid (or, if not a bid situation, prior to or at the time of signing a contract with the State), if known, the names and addresses of eacb subcontractor and a list of all manufacturing plants to be utilized by the bidder. June, 2006 APPENDIX B Standard Clauses for All New York State Department of Environmental Conservation Contracts The parties to the at~ached 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. II. Indemnification and Hold harmless The Contractor agrees that it will indemnify and save harmless the Department and the State of New York from and against all losses from claims, demands, payments, suits, actions, recoveries and judgments of every nature and description brought or recovered against it by reason of any omission or tortious act of the Contractor, its agents, employees, suppliers or subcontractors in thc performance of this contract. The Department and the State of New York may retain such monies from the amount due Contractor as may be necessary to satisfy any claim for damages, costs and the like, which is asserted against the Department and/or the State of New York. III. Conflict of Interest (a) Organizational Conflict of Interest. To the best of the Contractor's knowledge and belief, the Contractor warrants that there are no relevant facts or circumstances which could give rise to an organizational conflict of interest, as herein defined, or that the Contractor has disclosed all such relevant information to the Department. (1) An organizational conflict o f interest exists when the nature of the work to be performed under this contract may, without some restriction on future activities, impair or appear to impair the Contractor's objectivity in performing the work for the Department. (2) The Contractor agrees that if an actual, or potential organizational conflict of interest is discovered at any time after award, whether before or during performance, the Contractor will immediately make a full disclosure in writing to the Department. This disclosure shall include a description of actions which the Contractor has taken or proposes to take, after consultation with the Department, to avoid, mitigate, or minimize the actual or potential conflict. (3) To the extent that the work under this contract requires access to personal, proprietary or confidential business or financial data of persons or other companies, and as long as such data remains proprietary or confidential, the Contractor shall protect such data from unauthorized use and disclosure and agrees not to use it to compete with such companies. (b) Personal Conflict of Interest: The following provisions with regard to management or professional level employee personnel performing under this contract shall apply until the earlier of the termination date of the affected employee(s) or the duration of the contract. (1) A personal conflict of interest is defined as a relationship of an employee, subcontractor employee, or consultant with an entity that may impair or appear to impair the objectivity of the employee, subcontractor employee, or consultant in performing the contract work. The Contractor agrees to notify the Department immediately of any actual, or potential personal conflict of interest with regard to any such person working on or having access to information regarding this contract, as soon as Contractor becomes aware of such conflict. The Department will notify the Contractor of the appropriate action to be taken. (2) The Contractor agrees to advise all management or professional level employees involved in the work of this contract, that they must report any personal conflicts App. B 4/17/00 Page 1 of interest to the Contractor. The Contractor must then advise the Department which will advise the Contractor of the appropriate action to be taken. other remedies as may be permitted by the terms of Clause I of this Appendix or other applicable provisions of this contract regarding termination. (3) Unless waived by the Department, the Contractor shall certify annually that, to the best of the Contractor's knowledge and belief, all actual, apparent or potentia! conflicts of interest, both personal and organizational, as defined herein, have been reported to the Department. Such certification must be signed by a senior executive of the Contractor and submitted in accordance with instructions provided by the Department. Along with the annual certification, the Contractor shall also submit an update of any changes in any conflict of interest plan submitted with its proposal for this contract. The initial certification shall cover the one-year period from the date of contract award, and all subsequent certifications shall cover successive annual periods thereafter. The certification is to be submitted no later than 45 days after the close of the previous certification period covered. (4) In performing this contract, the Contractor recognizes that its employees may have access to data, either provided by the Department or first generated during contract performance, ora sensitive nature which should not be released without Department approval. If this situation occurs, the Contractor agrees to obtain confidentiality agreements from all affected employees working on requirements under this contract including subcontractors and consultants. Such agreements shall contain provisions which stipulate that each employee agrees not to disclose, either in whole or in part, to any entity extemal to the Department, Department of Health or the New York State Department of Law, any information or data provided by the Department or first generated by the Contractor under this contract, any site- specific cost information, or any enforcement strategy without first obtaining the written permission of the Department. If a Contractor, through an employee or otherwise, is subpoenaed to testify or produce documents, which could result in such disclosur?, the Contractor must provide immediate advance notification to the Department so that the Department can authorize such disclosure or have the opportunity to take action to prevent such disclosure. Such agreements shall be effective for the life of the contract and for a period of five (5) years after completion of the contract. (c) Remedies - The Department may terminate this contract in whole or in part, if it deems such termination necessary to avoid an organizational or personal conflict of interest, or an unauthorized disclosure of information. If the Contractor fails to make required disclosures or misrepresents relevant information to the Department, the Department may terminate the contract, or pursue such (d) The Contractor will be ineligible to make a proposal or bid on a contract for which the Contractor has developed the statement of work or the solicitation package (e) The Contractor agrees to insert in each subcontract or consultant agreement placed hereunder (except for subcontracts or consultant agreements for well drilling, fence erecting, plumbing, utility hookups, security guard services, or electrical services) provisions which shall conform substantially to the language of this clause, including this paragraph (e), unless otherwise authorized by the Department. If this is a contract for work related to action at an inactive hazardous waste site, the following paragraph shall apply to those Contractors whose work requires the application of professional judgment: It does not apply to construction contracts. (f) Due to the scope and nature of this contract, the Contractor shall observe the following restrictions on fi~ture hazardous waste site contracting for the duration of the contract. (1) The Contractor, during the life of the work assignment and for a period of three (3) years after the completion of the work assignment, agrees not to enter into a contract with or to represent any party with respect to any work relating to remedial activities or work pertaining to a site where the Contractor previously performed work for the Department under this contract without the prior written approval of the Department. (2) The Contractor agrees in advance that if any bids/proposals are submitted for any work for a third party that would require written approval of the Department prior to entering into a contract because of the restrictions of this clause, then the bids/proposals are submitted at the Contractur% own risk, and no claim shall be made against the Deparm~ent to recover bid/proposal costs as a direct cost whether the request for authorization to enter into the contract is denied or approved. IV. Requests for Payment All requests for payment by the Contractor must be submitted on forms supplied and approved by the Department. Each payment request must contain such items of information and supporting documentation as are required by the Department, and shall be all-inclusive for the period of time covered by the payment request. App. B 4/17/00 Page 2 V. Compliance with Federal requirements To the extent that federal funds are provided to the Contractor or used in paying the Contractor under this contract, the Contractor agrees that it will comply with all applicable federal laws and regulations, including but not limited to those laws and regulations under which the Federal funds were authorized. The Contractor further agrees to insert in any subcontract hereunder, provisions which shall conform substantially to the language of this clause. VI. Independent Contractor The Contractor shall have the status of an independent contractor. Accordingly, the Contractor agrees that it will conduct itself in a manner ~onsistent with such status, and that it will neither hold itself ont as, nor claim to be, an officer or employee of the Department by reason of this contract. It further agrees that it will not make any claim, demand or application to the Department for any right or privilege applicable to an officer or employee of the Department, including but not limited to worker's compensation coverage, unemployment insurance benefits, social security coverage, or retirement membership or credit. VII. Article 15-A Requirements The terms contained in this clause shall have the definitions as given in, and shall be construed according to the intent of Article 15-A of the Executive Law, 5 NYCRR Part 140, et. seq., Article 52 of the Environmental Conservation Law and 6 NYCRR Part 615, et. seq., as applicable, and any goals established by this clause are subject to the intent of such laws and regulations. (a) If the maximum contract price herein equals or exceeds $25,000, and this contract is for labor, services, supplies, equipment, or materials; or (b) If the maximum contract price herein equals or exceeds $100,000 and this contract is for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon; then (c) The affirmative action provisions and equal employment opportunity provisions contained in this paragraph and paragraphs (d) and (e) of this clause shall be applicable within the limitations established by Executive Law §§312 and 313 and the applicable regulations. (1) The Contractor is required to make good faith efforts to subcontract at least 21.5 % of the dollar value of this contract to Minority Owned Business Enterprises (MBEs) and at least 13.7 % 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 6 % of, and women for at least 6 % 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 interact; www.empire.state.ny.us\esd.htm (d) The Contractor agrees to include the provisions set forth in paragraphs (a), (b) and (c) above and paragraphs (a), (b), and (c) of clause 12 of Appendix A in every subcontract in such a manner that the provisions will be binding upon each Subcontractor as to work under such subcontract. For the purpose of this paragraph, a "subcontract" shall mean an agreement providing for a total expenditure in excess of $25,000 for the construction, demolition, replacement, major repair, renovation, planning or design of real property and improvements thereon in which a portion of the Contractor's obligation under a State contract is undertaken or assumed. (e) The Contractor is required to make good faith efforts to utilize the MBE/WBEs identified in the utilization plan to the extent indicated in such plan, and otherwise to implement it according to its terms. The Contractor is requested to report on such implementation periodically as provided by the contract, or annually, whichever is more frequent. VIII. Compliance with applicable laws (a) Prior to the commencement of any work under this contract, the Contractor is 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 App. $ 4/17/00 Page 3 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. Dispute Resolution The parties agree to the following steps, or as many as are necessary to resolve disputes between the Department and the Contractor. (a) The Contractor specifically agrees to submit, in the first instance, any dispute relating to this contract to the designated individual, who shall render a written decision and furnish a copy thereof to the Contractor. (I) The Contractor must request such decision in writing no more than fifteen days after it knew or should have known of the facts which are the basis of the dispute. (2) The decision of the designated individual shall be the final agency determination, unless the Contractor files a written appeal of that decision with the designated appeal individual ("DAI") within twenty days of receipt of that decision. (b) Upon receipt of the written appeal, the DAI, will review the record and decision. Following divisional procedures in effect at that time, the DAI will take one of the following actions, with written notice to the Contractor. (1) Remand the matter to the program staff for further negotiation or information if it is determined that the matter is not ripe for review; or (2) Determine that there is no need for further action, and that the determination of the designated individual is confirmed; or (3) Make a determination on the record as it exists. (c) The decision of the DAI shall be the final agency decision unless the Contractor files a written appeal of that decision with the Chair of the Contract Review Committee ("CRC") within twenty days of receipt of that decision, The designated individual to hear disputes is: Lorie King, Environmental Program Specialist 1 NYSDEC - Division of Management & Budget 625 Broadway, l0th Floor Albany, New York 12233-1080 (518) 402-9240 The designated appeal individual to review decisions is: Anne Marie Cramer, Associate Accountant NYSDEC - Division of Mauagemcnt & Budget 625 Broadway, l0th Floor Albany, New York 12233-1080 (5 t 8) 402-9240 The Chair of the Contract Review Committee is: Departtnent of Environmental Conservation Nancy W. Lussier, Chair Contract Review Committee 625 Broadway, l0th Floor Albany, NY 12233-5010 Telephone: (518) 402-9228 (d) Upon receipt of the written appeal, the Chair of the CRC, in consultation with the members of the CRC and the Office of General Counsel, will take one of the following actions, or a combination thereof, with written notice to the Contractor. (1) Remand the matter to program staff for additional fact finding,negotiation, or other appropriate action; or (2) Adopt the decision of the DAI; or (3) Consider the matter for review by the CRC in accordance with its procedures. (e) Following a decision to proceed pursuant to (d) 3, above, the Chair of the CRC shall convene a proceeding in accordance with the CRC's established contract dispute resolution guidelines. The proceeding will provide the Contractor with an opportunity to be heard. (0 Following a decision pursuant to (d) 2 or (d) 3, the CRC shall make a written recommendation to the Assistant Commissioner for Administration who shall render the final agency determination. (g) At any time during the dispute resolution process, and upon mutual agreement of the parties, the Office of Ilearings and Mediation Services (OHMS) may be requested to provide mediation services or other App. B 4/17/00 Page 4 appropriate means to assist in resolving the dispute. Any findings or recommendations made by the OHMS will nbt be binding on either party. (h) Final agency determinations shall be subject to review only pursuant to Article 78 of the Civil Practice Law and Rules. (i) Pending final determination of a dispute hereunder, the Contractor shall proceed diligently with the performance of the Contract in accordance with the decision of the designated individual. Nothing in this Contract shall be constraed as making final the decision of any administrative off~cer upon a question of law. (j) (1) Notwithstanding the foregoing, at the option of the Contractor, the following shall be subject to review by the CRC: Disputes arising under Article 15-A of the Executive Law (Minority and Women Owned Business participation), the Department's determination with respect to the adequacy of the Contractor's Utilization Plan, or the Contractor's showing of good faith efforts to comply therewith. A request for a review before the CRC should be made, in writing, within twenty days of receipt of the Department's determination. (2) The CRC will promptly convene a review in accordance with Article 15-A of the Executive Law and the regulations promulgated thereunder. X. Labor Law Provisions (a) When applicable, the Contractor shall post, in a location designated by the Department, a copy of the New York State Department of Labor schedules of prevailing wages and supplements for this project, a copy of all re-determinations of such schedules for the project, the Workers' Compensation Law Section 51 notice, all other notices required by law to be posted at the site, the Department of Labor notice that this project is a public work project on which each worker is entitled to receive the prevailing wages and supplements for their occupation, and all other notices which the Department directs the Contractor to post. The Contractor shall provide a surface for such notices which is satisfactory to the Department. The Contractor shall maintain such notices in a legible manner and shall replace any notice or schedule which is damaged, defaced, illegible or removed for any reason. Contractor shall post such notices before commencing any work on the site and shall maintain such notices until all work on the site is complete. (b) When appropriate, contractor shall distribute to each worker for this Contract a notice, in a form provided by the Department, that this project is a public work project on which each worker is entitled to receive the prevailing wage and supplements for the occupation at which he or she is working. Worker includes employees of Contractor and all Subcontractors and all employees of suppliers entering the site. Such notice shall be distributed to each worker before they start performing any work of this contract. At the time of distribution, Contractor shall have each worker sign a statement, in a form provided by the Department, certifying that the worker has received the notice required by this section, which signed statement shall be maintained with the payroll records required by the following paragraph (c). (c) Contractor shall maintain on the site the original certified payrolls or certified transcripts thereof which Contractor and all of its Subcontractors are required to maintain pursuant to the New York Labor Law Section 220. Contractor shall maintain with the payrolls or transcripts thereof, the statements signed by each worker pursuant to paragraph (b). (d) Within thirty days of issuance of the first payroll, and every thirty days thereafter, the Contractor and every subcontractor must submit a transcript of the original payroll to the Department, which transcript must be subscribed and affirmed as tree under penalty of perjury. XI. Offset In accordance with State Law, the Department has the authority to administratively offset any monies due it fi.om the Contractor, 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. Tax Exemption Pursuant to Tax Law Section 1116, the State is exempt from sales and use taxes. A standard state voucher is sufficient evidence thereof. For federal excise taxes, New York's registration Number 14740026K covers tax-free transactions under the Internal Revenue Code. XII1. Litigation Support In the event that the Depamnent 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. App. B 4/17/00 Page 5 XIV. Equipment Any equipment purchased with funds provided under this contract, shall remain the property of the Department, unless otherwise provided in the contract. The Contractor shall be liable for all costs for maintaining the property in good, usable condition. It shall be returned to the Department upon completion of the contract, in such condition, unless the Department elects to sell the equipment to the Contractorl upon mutually agreeable terms. XV. Inventions or Discoveries Any invention or discovery first made in performance of this Contract shall be the property of the Department, unless otherwise provided in the contract. The Contractor agrees to provide the Department with any and all materials related to this property. At the Department's option, the Contractor may be granted a non-exclusive license. XVI. Patent and Copyright Protection If any patented or copyrighted material is involved in or results from the performance of this Contract, this Article shall apply. (a) The Contractor shall, at its expense, defend any suit instituted against the Department and indemnify the Department against any award of damages and costs made against the Department by a final judgment of a court of last resort based on the claim that any of the products, services or consumable supplies furnished by the Contractor under this Contract infringes any patent, copyright or other proprietary right; provided the Department gives the Contractor: (I) prompt written notice of any action, claim or threat of infringement suit, or other suit, and (2) the opportunity to take over, settle or defend such action at the Contractor's sole expense, and (3) all available information, assistance and authority necessary to the action, at the Contractor's sole expense. The Contractor shall control the defense of any such suit, including appeals, and all negotiations to effect settlement, but shall keep the Department fully informed concerning the progress of the litigation. (b) If the use of any item(s) or parts thereof is held to infringe a patent or copyright and its use is enjoined, or Contractor believes it will be enjoined, the Contractor shall have the right, at its election and expense to take action in the following order of precedence: (1) procure for the Department the right to continue using the same item or parts thereof; (2) modify the same so that it becomes non-infringing and of at least the same quality and performance; (3) replace the item(s) or pans thereof with noninfringing items of at least the same quality and performance; (4) if none of the above remedies are available, discontinue its use and elinfinate any future charges or royalties pertaining thereto. The Contractor will buy back the infringing product(s) at the State's book value, or in the event ora lease, the parties shall terminate the lease. If discontinuation or elimination results in the Contractor not being able to perform the Contract, the Contract shall be terminated. (c) In the event that an action at law or in equity is commenced against the Department arising out of a claim that the Department's use of any item or material pursuant to or resulting from this Contract infringes any patent, copyright or proprietary right, and such action is forwarded by the Department to the Contractor for defense and indemnification pursuant to this Article, the Department shall copy all pleadings and documents forwarded to the Contractor together with the forwarding correspondence and a copy of this Contract to the Office of the Attorney General of the State of New York. If upon receipt of such request for defense, or at any time thereafter, the Contractor is of the opinion that the allegations in such action, in whole or in part, are not covered by the indemnification set forth in this Article, the Contractor shall immediately notify the Department and the Office of the Attorney General of the State of New York in writing and shall specify to what extent the Contractor believes it is and is not obligated to defend and indemnify under the terms and conditions of this Contract. The Contractor shall in such event protect the interests of the Department and State of New York and secure a contimmnce to permit the State of New York to appear and defend its interests in cooperation with Contractor as is appropriate, including any jurisdictional defenses which the Department and State shall have. (d) The Contractor shall, however, have no liability to the Department under this Article if any infringement is based upon or arises out of: (1) compliance with designs, plans, or specifications furnished by or on behalf of the Department as to the items; (2) alterations of the items by the Department; (3) failure of the Department to use updated items provided by the Contractor for avoiding infringement; (4) use of items in combination with apparatus or devices not delivered by the Contractor; (5) use of items in a manner for which the same were neither designed nor contemplated; or (6) a patent or copyright in which the App. B 4/17/00 Pa~e 6 Department or any affiliate or subsidiary of the Department has any direct or indirect interest by license or otherwise. (e) The foregoing states the Contractor's entire liability for, or resulting from, patent or copyright infringement or claim thereof. XVII. Force Majeure The term Force Majeure shall include acts of God, work stoppages due to labor disputes or strikes, fires, explosions, epidemics, riots, war rebellion, sabotage or the like. Ifa failure of or delay in performance by either party results from the occurrence ora Force Majeure event, the delay shall be excused and the time for performance extended by a period equivalent to the time lost because of the Force majeure event, if and to the extent that: (a) The delay or failure was beyond the control of the party affected and not due to its fault or negligence; and (b) The delay or failure was not extended because of the affected party's failure to use all reasonable diligence to overcome the obstacle or to resume performance immediately after such obstacle was overcome; and (c) The affected party provides notice within (5) days of the onset of the event, that it is invoking the protection of this provision. XVIII. FreedomofInformation Requests The Contractor agrees to provide the Department with any records which must be released in order to comply with a request pursuant to the Freedom of Information Law. The Department will provide the contractor with an opportunity to identify material which may be protected from release and to support its position. XIX. Precedence In thc event of a conflict between the terms of this Appendix B and the terms of the Contract (including any and all attachments thereto and amendments thereof, but not including Appendix A), the terms of this Appendix B shall control. In the event of a conflict between the terms of this Appendix B, and the terms of Appendix A, the terms of Appendix A shall control. App. B 4/17/00 Page 7