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HomeMy WebLinkAboutEnvironmental InventoryENVIRONMENTALINVENTORYAGREEMENT This agreement is made between Town of Southold, 53095 Main Road, Southold, New York, 11971, celled the Town below, and Ocean & Coastal Consultants, Inc., 35 Corporate Drive, Trumbull, CT 06611, celled the Consultant below. RECITALS The Town seeks an environmental inventory of the flora, fauna and ecological communities that might be negatively affect by an engineered shoreline modification in the area from the West Town Line to Horton Point, celled the Project below. The Town and the Consultant in consideration of the mutual covenants set forth agree as follows: Section I Services of Consultant A. Project Description The ConSultant agrees to perform professional services in connection with the Project. The Project is described in the following documents, which am attached hereto and incorporated herein: 1. This Agreement, 2. The Request for Proposal 3. The Environmental Inventory Proposal Questions 4. The Consultant's Clarification of Proposal dated 12/7J97 5. The Consultant's proposal dated 10/22/97, including exhibits. B. Geographic Scope of Services Consultant will serve as the Town's professional consulting representative in the above Project, and will give consultation and advice to the Town dudng the performance of its services. The geographic area covered by this Proposal shall be the full area specified in the Request For Proposal (RFP) from the West Town Line to Horton Point. C. Consultant's Services Consultant agrees to provide, perform and complete all of the foregoing in a proper and workmanlike manner, consistent with the highest standards of professional practices. Consultant warrants that the work shall be free of defects and flaw in design and shall be fit, sufficient and suitable for the purpose expressed in the Request for Proposal. D. Timeframe The Project shall follow the timeframe specified in the Consultant's Proposal, with csmpletion and submittal of the Final Report on the Environmental Inventory by March 31, 1998. Section II Town's Responsibilities The Town's responsibilities in connection with the Project are as follows: A. Information. Provide full information as to its requirements for the Project. B. Reports and Other Data. Assist the Consultant by placing at its disposal all available information regarding the site of the Project including previous reports and any other data relative to the Project. C. Meetings. To meet and confer with Consultant as specified in the RFP and Proposal. D. Examination of Documents. Examine all studies, reports, sketches, estimates, specifications, drawings, proposals, and other documents presented by the Consultant and render in writing decisions pertaining to them within a reasonable time so as not to delay the work of the Consultant. Section III Additional Services of Consultant If authorized in writing by the Town, the Consultant will furnish or obtain from others additional services of the following types: A. Changes in Scope of Project. Additional services due to significant changes in general scope of the Project or its design including, but not limited to, changes in size, complexity, or character. B Additional Copies and Prints. Furnishing additional copies of reports and additional pdnts of drawings and specifications. Section IV Payments to Consultant A. Payments for Services and Expenses The Town will pay the Consultant a fee upon the completion of the Project, which fee shall be Thirty Six Thousand Three Hundred Five ($36, 305.00) dollars. B. Additional Services. The Town will pay for additional services performed under Section III if these services have been pre-authorized in writing. The fee for these services shall be at a mutually agreed upon rate pdor to performance of those additional services. Section V General Considerations A. Additional Terms The parties understand that the Project is being financed by a grant by the State of New York, and thereby agree to abide by the applicable terms of the grant as set forth in Appendices A and B, which are attached hereto and incorporated herein. B. Termination This agreement may be terminated by either party by f'n~een (15) days written notice in the event of substantial failure to perform in accordance with its terms by the other party through no fault of the terminating party. If this agreement is terminated pdor to completion, the Consultant shall be paid for services performed pdor to termination. 3 C. Ownership of Documents All documents, including original report, drawings, field notes, and data are and remain the property of the Town. D. Disputes All claims, disputes and other matters in question, adsing out of, or relating to, this agreement or any breach of it shall be decided in any New York court having jurisdiction. E. Non-Discrimination Clause In accordance with Article 15 of the Executive Law and all other State and federal statutory and constitutional non-discrimination provisions, the Consultant will not discriminate against any employee or applicant for employment because of race, creed, color, sex, national odgin, age, disability or marital status. F. Non Collusive Bidding Requirement If this contract was awarded based upon the submission of bids, Consultant warrants, under penalty of perjury, that its bid was arrived at independently and without collusion aimed at restricting competition. G. Total Agreement This Agreement, including the Request for Proposal, Proposal and all exhibits attached thereto, represent the entire agreement between the Town and Consultant relating to the services to be performed hereunder. This Agreement may be modified only by written agreement of Consultant and Town. To the extent of any inconsistency among these documents, the priodty among those documents shall be: 1. This Agreement, 2. The Request for Proposal 3. The Environmental Inventory Proposal Questions 4. The Consultant's Clarification of Proposal dated 12/2/97 5. The Consultant's proposal dated 10/22/97, including exhibits. H. Successors and Assigns Each party to this agreement binds himself and his or her partners, successors, executors, administrators, and assigns to the other party of this agreement and to the partners, successors, executors, administrators, and assigns of such other party, in respect to all covenants of this agreement. Except as above, neither party shall assign, sublet, or transfer its interest in this agreement without the written consent of the other. Nothing shall be construed as creating any personal liability on the part of any officer or agent of any public body which may be party to this agreement, nor shall it be construed as giving any rights or benefits to anyone other than the parties to this agreement. In witness, the parties have executed this agreement at Southold, N.Y. , on December 31, 1997. Town of Southold Supervisor Ocean and Coastal Consulting Inc. · - Stanley M White President 5 Page APPF/gD IX k STANDARD CLAUSES FOR ALL NEW YORK STATE CO~T~ACTS The parties to the attached contract, license, lease, amendment or other agreement of any kind (hereinafter, "the contract" or "this contract") agree to be bound by the following clauses which are hereby made a part of the contract (the word "Contractor" herein references to any party other than the State, whether a contractor, licensor, licensee, lessor, lessee or any other party): 1. RV . In accordance with Section 4! of the State Finance Law, the State shall have no liability under this contract to the Contractor or to anyone else beyond funds appropriate and available for this contract. 2. NON-ASSIGNMENT CLAUSe. In accordance with Section 138 of the State Finance Law, this contract may not be assigned by the Contractor or its right, title or interest therein assigned, transferred, conveyed, sublet or otherwise disposed of without the previous consent, in writing, of the State and any attempts to assign the contract without the State's written consent are null and void. The Contractor may, however, assign its right to receive payment without the State's prior written consent unless this contract concerns Certificates of. Participation pursuant to~icle 5-A of the State Finance Law. 3. COM~TROLLER.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 of Section 6218 of the Education Law), if this contract exceeds $5,000 ($20,000 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 ~aid statutory amount, or if, by this contract, the State agrees to give something other than money, 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. 4. WOPd{ER'S COMPENSATION BEb-EFTT~. In accordance with Section 142 of the State Finance Law, this contract shall be void and of no force 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 Worker's Compensation Law. 5. NON-DISCRIMINATION REOUIREMENTS. In accordance with 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, age, disability 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, an to the extent that this contract shall be performed within the State of New York, 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 or intimidate any employee hired for the performance of work u~nder this contract. If this is a building service contract as defined in Section 230 of the Labor Law, then, in accordance with Section 239 thereof, Contractor agrees that neither it nor its subcontractors shall, by reason of race, creed, color, national origin, age, sex or disability: (a) discriminate in hiring against any New York State citizen who is qualified and available to perform the work; or (b) discriminate against or intimidate ~ny employee hired for the performance of work under this contract. Contractor is subject to fines of $50.00 per person per day for ~ny violation of Section 220-e or Section 239 as well as possible termination of this contract a~d forfeiture of all moneys due hereunder for a second or subsequent violation. 6. WAGE AND HOURS PROVTSIONS. 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, subcontractors may be re_cuired 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. Fu~hermore, Contractor and its subcontractors must pay at least the prevailing wage rate and pay or provide the prevailing supplements, inclu~ding the premium rates for overtime pay, as determined by the State Labor Department in accordance with the Labor Law. 7. ~ON-COLLUSIVE BIDDING REOUI.R]EM]ENT. In accordance with Secticn !39-d of the State Finance Law, if this con~ract was awarded based upon the submission of bids, Contractor warrants, under penalty of perjury, that its bid was arrived at independently and wihtout collusion aimed at restricting competition. Contractor further warrants that, at the time Contractor submitted its bid, an authorized and responsible person executed and delivered to the State a non-collusive bidding certification on Contractor's behalf. 8. INTERNATIO~ BOYCOTT PROHIBITION. In accordance with Section 220-f of the Labor Law and Section 139-h of the State Finance Law, if this contract exceeds $5,000.00, the Contractor agrees, as a material condition of the contract, that neither the Contractor nor any substantially owned or affiliated person, is participating, or shall participate in an international boycott i~ violation of the federal Export Administration Act of 1979 (5'0 USC App. Section 2401 et seq.) or regulations thereunder. If such Contractor, or any of the aforesaid affiliates of Contractor, is convicted or is othe=~ise found to have violated said laws or regulations upon the final determination of the United States Commerce Department or any other appropriate agency of the United States subsequent to the contract's execution, such contract, amendment or modification thereto shall be rendered forfeit and void. The contractor shall so notify the State Comptroller within five (5) business days of such conviction, determination or disposition of appeal (2 NYCRR 105.4) 9. ~$~. The State shall have all of its common law, equitable ~ud statutory rights of set-off. These rights shall include, but not be limited to, 6he State's option to withhold for the pu-~_oses of set-off any moneys due to the Contractor under this contract up to any amou~nts due and owing to the State with regard to this contract, any other contract with any State department or- agency, includLng 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, tax 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 5o an audit, the finalization of such audit by the State agency, its representatives, cr the State Comptroller. !0. -~F~LQ~D_~. The Contractor shall establish and maintain complete and accurate books, records, documents, accounts and other evidence directly penitent 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 within the State of New York or, if no such office is available, at a mutually agreeable and reasonable venue within the State, fort he 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 apprppriate 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 futura litigation. !!. IDENTI~-"f!NG INFORMATION AND PRIVACY' NOTIFICATION: (a) FEDE_ZL~L EMPLOYER IDENTIFICATION NUMJBER and/or FEDEP~L SOCIAL SECIIRITY N-uqWBER. 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 employee identification number or Federal social security number, or both such numbers when the payee has both such numbers. Failure to include this number or numbers may delay payment. Where the payee does. not have 'such number or numbers, the payee, on his invoice or New York State.stanHmrd voucher, must give the reason or reasons why the payee does not have such number or numbers. (b) PRIVACY NOTTFICAT!ON. (1) The authority to request the above personal information from a se!le'r of goods or services or a lessor of real or personal prope~y, and the authority to maintain such information, is fou_nd in Section 5 of the State Tax Law. Disclosure of this information by the seller or lessor to the State is mandatory. The principal purp. ose for which the information is collected is to enable the State to identi~y individuals, businesses and other who have been delinquent in filing tax returns or may have understated their tax liabilities and to generally identify persons affected by the taxes administered · by the Commissioner of Taxation and Finance. The information will be used for tax administration purposes and for any other purpose authorized by law. (2) The personal' information is requested by the purchasing unit of the agency contracting to purchase the goods or services or lease the real or personal property covered by this contract or lease. The information is maintained in New York State's Central Accounting System by the Director of Stat~ Accounts, Office of the State Comptroller, AESOB, Albany, New York 12236. 12. EQUAL EM~LOVW~IT OPPORTUNITIES FOR SfINORITIES AND WO~. 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 =_xpenditure in excess of $25,000.00, whereby a contracting agency is committed to ex?end 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 ex?end or does ex?end 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 where-by th~ owner of a State assisted housing project is committed to expend or does ex!pend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon for such project, then: (a) The contractor will not discriminate against employees or applicants for employment because ofrace, 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, upgrading, demotion, transfer, layoffs, or termination and rates of pay or other roms of compensation; (b) at the request of the contracting agency, the Cntractor shall request each employment agency,labor union, or authorized representative of workers with which it has a collective bargaining or other greement 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 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 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 Contractor, Section 312 does not apply to: (i) work, goods or se--vices 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 employmen~ opportunity which effectuates the purpose of his section.. The contracting agency shall determine whether the imposition of ~he 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. Concractor will comply with all duly promulgated and lawful ~ales and regulations of the pertaining hereto. 13. CONF_~LICT!NG ?ERMS. in the event of a conflict between Zhe terms of the contract (including any and all attachments thereto and amendments thereof) and the terms of this Appendi~ A, the terms of this Appendix A shall control. 14. ~Q~- This contract shall be governed by the laws of the State of New York except where the Federals supremacy clause requires otherwise. 15. ~PAYM~. Timeliness of payment and any interest · to be paid to Contractor for late payment shall be governed by Article XI-A of the State Finance Law to the extent required by law. 16. ~. Disputes involving this contract, including the breach or alleged breach, thereof, may not be submitted to binding arbitration (except where statutory authorized) but must, instead, be heard in a court of competent jurisdiction of the State of New York. 17. SERVICE OF PROCESS. In addition to the methods of service allowed by the State Civil Practice Law A Rules ("CPLR"), Contractor hereby consents to service of process upon it by registered or certified mail, return receipt requested. Service hereunder shall be complete 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 eve~--y 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 hereunder is complete in which to respond. August 1989 APPENDIX B Standard Clauses for All New York State Department of Environmental Conservation Contra~ts The parties to th~ attached contract, license, lease, amendment or other agreement of any kind (hereinafter. "the contract" or "this contract") agree to be bound by' the following clauses which are.hereby made a part of the contract. The word "Contractor. herein refers to any party to the contract, other than the New York State Department of Environmental Conservation (hereinafter "Department,). I. 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 a~y termination, postponement, delay, suspension or abandonment, 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 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 bytheDepartment 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. 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 jud~n~nts of every nature.anddescription brought or recovered against it by reason of any omission or act of the Contractor, its agents, employees, or subcontractors in the 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. (a) Conflict of inter,st. 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. (b) An organizational conflict of interest exists when the nature of the work to be performed under this contract may, without some restriction on future activities, either result in an unfair competitive a~antage to the Contractor or impair or appear roi April 1, 1993 Page 1 of 9 impair the Contractor,s objectivity in performing the work for t~e Department. (c) The Contractor agrees that if an actual, apparent, or potential organizational conflict of interest is discovered at any time after award, whether before or during performance, the Contractor will immediately make a fu~l 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. (d) 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 or information. If the Contractor was aware of a potential conflict of interest prior to award, or discovered an actual or potential conflict after award and did not disclose or misrepresented relevant information to the Department, the Department may terminate the contract, or pursue such other remedies as may be permitted by the terms of Clause I of this Appendix or other applicable orovisions of this contract regarding termination. ~ (e) In addition to the requirements of the above clauses with respect to "Organizational Conflicts of Interest,, the following provision with regard to employee personnel performing under this contract shall apply until ~he earlier of the termination date of the affected employee(s) or the duration of the contract. The Contractor agrees to notify the Department immediately of any actual, apparent or potential personal conflict of interest with regard to any employee, subcontractor employee, or consultant working on or having access to information re~arding this contract, as soon as Contractor becomes aware of such conflict. 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 Department will notify the Contractor of the appropriate action to be taken. (f) To the extent that the work under this contract requires access to proprietary or confidential business or financial data of other companies, and as long as such data remains proprietary or confidential, the Contractor shall orotect such data from unauthorized use and disclosure and agrees not to use it to comoete with such companies. - (g) The Contractor shall certify annually that, to the best of the Contractor's Knowledge and belief, all actual, annarent or potential conflicts of interest, both personal and organizational, April 1, 1993 Page 2 of 9 ~ave 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 the conflict of interest plan submitted with its proposal for this contract. The initial certification shall coPer the one-year period from the date of contract award, and all 'subsequent certifications shall cover successive a~ual periods thereafter. The certification is to be submitted no later than 45 da~ after the close of the previous certification period covered. (h) The Contractor recognizes that employees in performing this contract may have access to data, either provided by the Department or first generated during contract performance, of a sensitive nature which should not be released without Department approval. Therefore, the Contractor agrees to obtain confidentiality agreements- from all employees working on requirements under this contract including subcontractors and consultants. Such agreements shall contain provisions which stipulate that each employee agrees that the employee will not disclose, either in whose or in part, to any entity external to the Department, Department of KealEh or the New York State Depa~ment of Law, any information or d~ta provided by the Department or first generated by the Contractor under this contract, any site-specific cost info,.marion, or ~y ~forcement strategy withou~ first obtaining the written permission of the Department. if a contractor, tDrcugh as emp!o[,ae or otherwise, is subpoenaed to testify or prod. uce documents, which could result in such disclosu/e, the contractor must provide immediate advance notification to the Department so that the Department can authorize such disclosure o:i .ha~e the opportunity to take action to prevent such disclosure. Such agreements shall be effective for the life of the contract and for a peri6d of five (5) years after completion of the contract. (i) The C¢~ntractor agrees to insert in each subcontract or consultant agreement placed hereunder (except for subcontracts or consultant agreements for well drilling, fence erecting, pl,,mhing, utility hookups, security guard services, or electrical services) provisions which shall conform substantialty to the language of this clause, including this paragraph (i), unless othe_--wise 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: (j) Due to the scope and nature of this contract, ~he Contractor shall observe the following restrictions on future hazardous waste site contracting for the duration of the contract. April 1, 1993 Page 3 of 9 (!) The Contractor will be ineligible to enter into contract for remedial action projects for which the Contractor has developed the statement of work or the solicitation package. (2) The Contractor, during the life of the work assignment and for a period of five (5) 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 w6rk 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. (3) The Contractor agrees in advance that if any bids/proposals are submitted for any work for a third party that would require written approval of the Department prior to entering into a contract because of the restrictions of this clause, then . the bids/proposals are submitted at the Contractor's own risk, and no claim shall be made against the Department to recover bid/proposal..costs as a direct cost whether the request for authorization to enter into the contract is denied or approved. IV. 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. 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, including this paragraph. VI. 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 emp%oyee of the Department, including but not limited to worker's compensation coverage, une~loymen~ insurance benefits, social security coverage, or retirement men%bership or credit. VII. 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, 9 NYCRR Part 540, et. seq., Article 52 of the Environmental Conservation Law and 6 NY~W~R Part 615, et. seq., as applicable, and any goals established by this April 1, 1993 Page % of 9 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 If the maximum contract price herein equals or exceeds $100,000 and this contract is for the acquisition, construction, demolition, replacement, major repair er renovation of real property and improvements thereon; The affirmative action provisions'and equal employment opportunity provisions contained in this paragraph and paragraphs b-f of this clause shall be applicable within the limitations established by. Executive Law §§312 and 313 and the applicable regulations. (1) The Contractor is_~equested to make good faith efforts to subcontract at least f.%~ of the dollar value of this contract to Minority Owned Business Enterprises (MBEs) and at least ~ of such value to Wcmen Owned Business Enterprises (WBEs). (2) The Contractor is requested 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 ~_~ of, _a~=d women for at !east'~/~ of, the workforce hours required to p~r=orm the work under this'contract. (3) The Contractor is requested to make good faith efforts to solicit the meaningful participation by enterprises identified in the NYS Directory of Certified Businesses provided by the Governor's Office of Minority ~ld Women's Business Development. (b) The Contractor agre6s to include the provisions set forth in paragraph (a) 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 s~bcontract. For the purpose of this paragraph, a "subcontract" shall mean ~ agreement providing for a total expenditure in excess of $25,000 for the construction, demolition, replacement, major repair, renovation, pl~n~ing 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. (c) The Contractor is requested to make good faith efforts t~ 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. The Contractor also agrees ~o incorporate into any contract with subcontractors, provisions April !, 1993 Page 5 of 9 applicable to recordkeeping, reporting, notice requirements and actions suggested by the Department to implement the utilization plan, and the intent of the Executive Law Article !5-A, the regulations promulgated thereunder, and other applicable law and regulations. (d) The Contractor hereby agrees to comply with the intent of the applicable provisions of Executive Law Article 15-A and the regulations promulgated thereunder. Executive Law §§312 and 316 are hereby incorporated by reference. VIII. 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. 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. The following steps, the dispute between the prescribed. or as many as are necessary to resolve Department and the Contractor, are The Contractor specifically agrees to submit, in the ~irst 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 and the Department. 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. The decision of the designated individual shall be final and conclusive unless the Contractor files a written appeal of that decision with the designated appeal individual within twenty days of receipt of that decision. The'designated appeal individual shall review the record and the decision and confirm or reverse the initial decision in writing, in accordance with the Divisional contract resolution procedures in effect at that time. April I, 1993 Page 6 of 9 The decision of the designated appeal individual shall be final and conclusive unless the Contractor files a written appeal of that decision with the chair of the contract Review'Com~ttee within twenty days of receipt of that decision. The designated individual to hear disputes is: Lisa Kennedy ~rinciDal Account Clerk (Name & Title) NYS Department of Environmental Conservation 50 Wolf Road. Albany. New York 12233-5022 (Address), f5~8) 457-53~7 (Telephone) The designated appeal individual to review decisions regarding disputes is: Mark Mitchell Associate Accountant (Name & Title) NYS Department of Environmental Conservation 50 Wol$ Road. AlbanY. New York 12233-5022 (Address) (518) 457-5317) (Telephone) made The Chair of the Contract Review Committee is: Department of Environmental Conservation Richard K. Randles, .Chair Contract Review Committee 50 Wolf Road, Room 674 Albany, New York 12233-5010 Telephone: (518) 457-1141 The Chair of the Contract Review Committee shall convene a fact finding proceeding in accordance with the Co~{ttee's established contract dispute resolution guidelines. The proceeding will providethe Contractor with an opportunity to be heard and to submit'additional wTitten support of its position. The Committee shall m~ke a recommendation to the Division Director who shall render the agency determination, subject to the final approval of the Deputy Commissioner for Administration. This decision shall be subject to review only pursuant to Article 78 of the civil Practice Law and Rules. Pending final determination of a dispute hereunder, the Contractor shall proceed April 1, 1993 Page 7 of 9 diligently with the performance of the Contract in accordance with the decision of the designated individual. Nothing in this Contract shall be construed as making final the decision of any administrative officer upon a question of law. Notwithstanding the foregoing, the following shall be subject to review by the Contract Review Committee, at the option of the iontr~or:.. Dj.spumes arising Under Ar~.icle 15-A of the Executive Contractor's Utilizaticn Plan __ ~= .... · .q~.cy f ~he ~ _== ........ ,.~= ua= ~on=ractor s snowing of~ood t?~=~ ==~u=u~ =o ¢ompay tnerewmth. A request for a hearin~be~ =ne ~ommm~t~e should be made, in writing, with~ twent~-2~ recempt o~ tb.e Department's determination. -~ "- -~ · The Committee will promptly c~nvene a hearing in accordance wmth Article 15-A of the Executlve Law and the regulations' promulga6ed thereunder. dec sion of the eput c. . s Son r for . 3 st tio shall a final agency determination, reviewable in accordance with said Article 78.of the Civil Practice Law and Rules. X. (a) When appropriate, the Contractor shall post, in a location designated by ~he 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-determinatiohs 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 I~hor 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., T~e Contractor shall provide a surface for such notices wb/ch ls satisfactory to the Depar~ment~ The Contractor shall maintain such notices in a legible ~ner 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 ~otices until all work on the site is complete. ' (b) When a~propriate, contractor shall distribute to each worker for this Co~tract a notice, in a form provided by the Department, t.hat' th~s project is a public work p..r?]ect on which each worker ms entitled to receive the prevailing wage and supplements for the oc=apation at which he or she is Worker includes employees of Contractor and all Subcontra - ctors and all employees of suppliers entering the site. Such notice shall be distributed to each worker before they star~performinganywork of this qontract. At the time of distribution, Contractor shall have each worker sign a statement, in a form providedbytheDeparament, certifying that the worker has received the notice required by this Apri!.l, 1993 Page 8 of 9 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). XI. In accordance with State Law (Chapter 55 of the Laws of 1992~, the Department has the authority to administratively offset any monies due it from the Contractor, from payments due to the Contiactor under this contract. XII. The contractor agrees that if selected as the lowest bidder,'- the contractor will stipulate concerning adherence to the MacBride Fair Employment Principles, as prescribed by Chapter 807, of the Laws of 1992. Section 174-B of the State Finance Law requires that before entering into certain State contracts, persons or entities stipulate that they either (1) have no business operations in Northern Ireland or (2), if so engaged, will conduct such operations in accordance with the MacBride Fair Emp. loymant Principles. For contracts competitively bid, if the lowest responsf.~le bidder fails to stipulate as required by Section 174-B, and another bidder, 'whose bid price for goods, services or construction of comparable quality is within five pePcent of the lowest bid, has so stipulated, the contracting entity shall refer such bids to the Office of General Se-~-vices. The purpose of such referral mR a determination by the Commissioner of General Services whether it is in the best interests of the State to reject the low bid and to award the contract to another'qualifying bidder. XIII. Pursuant to Section 167-B of the State Finance Law, ur~ess otherwise exempted, any bid, proposal or other re .sponse to a solicitation for bid or proposal which proposes or calls rom the use of any tropical hardwood or other tropical wood product in performance of the contract shall be deemed non-responsive. XIV. In the event of a conflict ~etween the te_~us of this Appendix B and.the terms of the Contrac~ (including any and all attachments thereto and amendments thereof, but not including Appena{x A), the terms of this Appendix B shall control. In the event of a conflict between the terms of this Appe~{x B and Appendix A, the terms of Appendix A shall control. April 1, 1993 Page 9 of 9 MAIN OFFICE: 3E CORFOiMT. DroVE TRUMBULL, CT 0~811 USA (203) 2~8-4007 FAX (203) 2~-8821 August 27, 1998 AU 511 Y;8 P.O. Box $1~, 7 PAM8 STREET PLYMOUTH, MA 023~141~ USA (80~) 7474424 FAX (608) 747.4N1 JN 98002 Mr. Edward Seidman, Professor ~ Town New York University Faculty of Arts and Sciences Psychology Building, Rm 277 - 6 Washington Place New York, NY 10003 Response to Comments on the Draft Final Report - Environmental Inventory, Town of Southold, NY: by I~'. Robe~t Gi'over of Greenman - Pedersen, Inc. (GPO Dear Mr. Seidman: Ocean and Coastal Consultants, Inc. (OCC) thanks you and your consultant for the above- referenced comments in the GPI correspondence dated August 1 I, 1998. OCC has reviewed these comments and has modified the report text to address and clarify many oftbe points raised in the GPI comments. However, we did not agree with several of the comments, and based upon discussions with NYS - Department of State (NYSDOS), did not include these points into thc Final Report. The purpose of this correspondence is to explain the rationale for not incorporating the following comments into the final report: 1) OCC has addressed each comment presented on Page 1 of the (GPO letter except for comment 2 which states - "Page 9 - The Estuary~Salt Marsh habitat description should be amended to clarify that the coastal pond (Goldsmith InleO is included." OCC disagrees with this comment since our charge was to evaluate a study area which encompassed, but was much larger than the Goldsmith Pond/Inlet system. Our definitions of ecological communities to be evaluated must be generic to the study area and not specific to any single geographic location. A review ofthe definition for Estuary/Salt Marsh as presenmt in the report clearly describes ecological conditions found in Goldsmith Pond/Inlet. 2) OCC chooses to respond to the first two General Comments as presented on Page 2 of the letter. OCC acknowledges that the alphabetical presentation of the species database is unconventional as a taxonomic species list, and is a function of the database design and database inputs. The database was constructed over several weeks, and further modified over several months (including some of the information presented in the GPI letter). Computer databases typically sort rl,at_~ htr p'd/www.ocean..coastal.cam Mr. Edward Seidman Response to Comanents from Greeaman-Pedersen, Inc. August 27, 1998 Page 2 based upon alpha-numeric coding. To modify the database design at thin late date would require including an additional alpha-numeric field properly cross- referenced through the entire 1348 entries. This would require an extensive work effort for which there is no budget, and no real justification since it will not provide the reader or user with any additional technical accuracy. The multiple listings may appear to be cumbersome at first glance, but provides users with the ability to develop additional species lists based upon temporal/seasonal use, breeding preferences, and habitat .nage. The database was designed to provide an opportunity to evaluate (sort) each organism based upon its habitat usage or its presence within the study area during specific seasons and at specific locations. 3) The scope of work contracted for the preparation of the Environmental Inventory limited OCC to utilize whatever observational data which was available, and to rely on habitat and range considerations as described in the literature, to round out the species list and database presented. The lack of observational d~_a~__a is the result of very few data sources being identified and/or made available to OCC. A review of the comprehensive Contact Database and the diversity of resources contacted, and the comments made by contacts during the literature search, clearly indicates that limited study area observational information was available and justifies the reliance on the literature data. 4) Species "not known to be present" were specifically required to be listed in conformance with the scope of services. 5) OCC reviewed the recommendations made under the "Specific Comments" regarding the coment ofthe species database coment. Several recommendations were incorporated into the database (e.g. typos, and adding four of the six bird species listed on Page 3). The omission of the four species was inadvertent. However, two of the six species identified were already included (Eastern Kingbird and Sharp-tailed Sparrow). Based upon the available information, OCC identified "known" species only where specific observational field evidence for said specific species was available. Where specific observational field evidence for a specific species was not available, but suitable habitat fell within the documented range ora specific species; and based upon professional.judgement that a specific species should be expected in the study area, it was listed as "likely" to be present. Discussions with NYSDEC - Region One, Permitting Section - Stonybrook indicated that there is no perceived OCEAN AND COASTAL CONSULTANTS, INC. Mr. Edward Seidman Response to Comments from Greenman-Pedersen, Inc. August 27, 1998 Page 3 difference between "known to be", "likely to be", or "possibly" present species relative to permittability. Upon receipt ora specific permit application and based upon a potential that a species may be present, NYSDEC would evaluate each application as was done during the Environmental Inventory, to determine permittab'dity or conditional permittability of the project in question. Therefore, changes in species status were limited. 6) Invertebrates identified during the benthic analysis have been identified in Table One fiance these species are neither economically si~tmificant species, or environmentally significant species; and their inclusion in the database would be inconsistent with its the described development criteria. Again, thank you for the participation and recommendations to improve the report. During a conference call between OCC and NYSDOS (Messrs. Fred Anders and Barry Pendergrass), responses to all comments were discussed and NYSDOS feels comfortable with this approach. If there are any questions please do not hesitate to contact us. Respectfully, ~,ff~$yarre~OCE~-ff AND COASTAL CONSULTANTS, 1NC Senior Sciemist CC: Mr Fred Anders (NYSDOS) Mr. Barry Pendergrass (NYSDOS) Ms. EliTaheth Neville (Town of Southold) Mr. James McMahon (Town of Southold) Mr. Robert Grover (Greenman-Pedersen, Inc.) Mr. John Roherge (Ocean and Coastal Consultants, Inc.) OCEAN AND COASTAL CONSULTANTS, INC.