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HomeMy WebLinkAboutClean Vessel Assistance Program RESOLUTION 2018-580 r ADOPTED a DOC ID: 14238 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2018-580 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON JUNE 19, 2018: RESOLVED that the Town'Board of the Town of Southold hereby authorizes and directs Supervisor Scott A. Russell to execute the 2018 Letter of Intent,Clean Vessel Assistance Program Operation &Maintenance Annual Application, Request for Reimbursement form, and any other accompanying documents between the Town of Southold and the New York State Environmental Facilities Corporation in connection with the filing of a Clean Vessel Assistance Program Operation &Maintenance Grant Program Annual Application for 2018, for grant funds up to the maximum amount of$5,000.00 regarding the pump-out boat owned and operated by the Town of Southold, utilized for the Town, subject to the approval of the Town Attorney. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Robert Ghosio, Councilman SECONDER:Louisa P. Evans, Justice AYES: Dinizio Jr, Ruland, Doherty, Ghosio, Evans, Russell 41, 1 .,y RECEIVED SEP 1 1 2018 Office of the Town Attorney Southold Town Clerk Town of Southold Town Hall Annex, 54375 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone : 631-765-1939 Facsimile: 631-765-6639 MEMORANDUM To: Ms. Elizabeth A. Neville, Town Clerk From: Mary Silleck Secretary to the Town Attorney Date: September 10, 2018 Subject: Agreement between Town of Southold and New York State Environmental Facilities Corporation Clean Vessel Assistance Operation and Maintenance Grant Program 2018 With respect to the above-referenced matter, I am enclosing the original Agreement together with the Resolution. If you have any questions regarding the enclosed, please do not hesitate to call me. Thank you. cc: Accounting INEWYORK ANDREW M.CUOMO sTAI Environmental Governor OPPORTUNITY. ' ' SABRINA M.TY Facilities Corporation President and CEO August 10,2018 The Honorable Scott A. Russell [EC [EdWED Supervisor AUG 14 2018 Town of Southold 53095 Main Road SUPERVISOR'S OFFICE P.O. Box 1179 TOWN OF SOUTHOLD Southold,NY 11971 RE: Executed Annual Agreement for Clean Vessel Assistance Operation&Maintenance Grant Program 2018 Dear Supervisor Russell: Please find enclosed a fully executed Annual Agreement for the Clean Vessel Assistance Program (CVAP). Through the Operation and Maintenance Grant Program(O&M),the New York State Environmental Facilities Corporation(EFC) is committed to providing recipients of CVAP grants with additional funding to assist in the annual costs of upkeep of the pumpout and/or dump station facility. Thank you for your participation in EFC's Clean Vessel Assistance Program. If you would like further assistance,please call 518.486.9267. A CVAP Representative can also be reached at CVAPkefc.ny.gov. Sincerely, Sabrina M. Ty President and CEO SMT/BBS Enclosure c: M. Domino, Board of Town Trustees 625 Broadway,Albany, NY 12207-2997 1518.402.6924 1 www.efc.ny.gov CLEAN VESSEL ASSISTANCE PROGRAM AfiIlNNAIL OPERATION &MAINTENANCE AGREEMENT TOWN OF SO TI(HO LD and NEW YORK STATE ENVIRONMENTAL FACILITIES CORPORATION 2018 This Annual Operation and Maintenance Grant Agreement (hereinafter referred to as the "Agreement"), by and between the New York State Environmental Facilities Corporation, a New York State public benefit corporation (hereinafter referred to as the "Corporation"), with offices located at 625 Broadway, Albany, New York, 12207-2997, and the Recipient identified on the cover page hereof,with offices located at 53095 Main Road(Route 25),P.O.Box 1179,Southhold, NY 11971. WHEREAS, the Corporation is the agency of the State of New York which is the recipient of federal grant funds provided under the Clean Vessel Act Grant Program (hereinafter referred to as the"CVA"), such program being authorized pursuant to the Clean Vessel Act of 1992 and the regulations promulgated thereunder for the purpose of providing federal grant funds to states for the construction,renovation,operation and maintenance of pumpout and dump stations to improve water quality; surveying existing pumpout and dump stations;and implementing education programs to increase public awareness of the use and availability of pumpout and dump stations to receive sewage waste from marine recreational vessels; and WHEREAS, the New York State Department of Environmental Conservation ("DEC") is an executive department of the State of New York with jurisdiction over the environmental policy, law and regulations of this State, pursuant to, among other things, Environmental Conservation Law ("ECL") Section 3-0301; and WHEREAS, pursuant to Section 1285(5) of the Public Authorities Law, the Corporation is empowered to provide certain assistance to municipalities,persons and state agencies, including, among other things, advice on matters relating to the identification, collection, handling, separation and disposal of waste,and on matters relating to the prevention and contrgl of air emissions and water discharges subject to regulation pursuant to the.ECL; and WHEREAS, the Recipient has submitted a Clean Vessel Assistance Program ("Program"or"CVAP")Letter of Intent(the"LOI")to the Corporation seeking financial assistance for reimbursement of costs incurred by Recipient for the operation and maintenance("O&M")of the project(s) listed in the LOI; NOW,'I<7E)LIERIEFORIE, in consideration of the promises and assurances in this Agreement,the Corporation and the Recipient agree as follows: 1. The Recipient previously submitted the LOI to the Corporation for grant assistance under the Program, for costs associated with the O&M of the project(s) as described in the LOI. 2. The representations set forth in the LOI are true and correct as of the date hereof, and Recipient has complied with, performed and will continue to comply with and perform all of the covenants and promises therein. 3. There have been no material changes in the information concerning the project(s) since submission of the LOI. 4. No litigation of any nature is now pending or threatened, to restrain or enjoin, or in any manner question or affect, directly or indirectly Recipient's ability or authority to carry out all responsibilities or receive reimbursement under this Agreement. 5. The Recipient is not the subject of any pending, threatened or existing action, whether under any bankruptcy, reorganization or insolvency law or any other proceeding,nor any undischarged or unpaid judgment, lien or claim, nor in default under any loan or mortgage agreement, nor delinquent on the payment of any federal, state, or local tax, or sales or compensating use tax,which has not been previously disclosed to the Corporation. The Recipient agrees to immediately notify the Corporation in writing of any change in the above circumstances. 6. - The project(s)is and will remain accessible to all recreational marine vessels during normal operating hours. If the project(s)is not operational for any reason,the Recipient will notify the Corporation within 45 days. 7. Reimbursement for O&M costs shall be paid by the Corporation in reliance upon the representations and certifications set forth in this Agreement and the Request for Reimbursement Form, which shall be used by Recipient to request reimbursement under the Agreement. 8. The not to exceed grant amount is the lesser of$5,000 or 75% of the total O&M costs for the annual funding period for pumpout boats and $2,000 for all other pumpout/dump stations. Reimbursement under this Agreement will be based on documented O&M costs incurred for the project(s) during the annual funding period. 9. The Corporation and the Recipient acknowledge that grant awards are limited to the amount of available funding for the Program, and that the amount actually received may be less than the maximum eligible amount. 10. O&M costs for which reimbursement is requested herein are reasonable,necessary, and allocable to the project(s) funded by the Agreement. 11. Federal funding received under this Agreement or from any other federal source, is limited to 75% of the total O&M costs for the annual funding period. There is a 25% match required from the Recipient, from state, local or other non-federal sources, which amount and sources will be reflected on the Request for Reimbursement Form submitted to the Corporation. 12. a. Any expenditure which will be reimbursed by any other municipal, state or federal sources shall not be eligible for reimbursement under this Agreement. b.Recipient will not seek or accept reimbursement from any other municipal, state or federal sources for any expenditures previously reimbursed, or to be reimbursed, under this Agreement. c. If the Recipient has or will receive funding from any other municipal, state or federal sources for costs reimbursed under this Agreement,Recipient will repay to the Corporation all such funding to the full extent of any such reimbursement. A. The Recipient shall not, under any circumstances, be entitled to receive state, federal or other governmental assistance in excess of 100% of the costs of the operation and maintenance of the facility. 13. The making of any reimbursement request under this Agreement as reflected on the Request for Reimbursement Form has been duly authorized by the Recipient, and no change in circumstances has occurred, or will occur upon the making of the reimbursement payment herein requested,which would constitute a default or breach of the Agreement. 14. The project(s), including O&M thereof, is in compliance with state and federal regulations and Program guidelines. 15. The Recipient has obtained,all licenses, permits or other approvals required as of the date hereof to undertake the O&M, including, but not limited to, any and all DEC approvals or permits. 16. If the project(s) is conveyed or transferred to a third party, the Agreement shall be incorporated in the sales contract, and the Recipient and purchaser, with the consent-of the Corporation, shall execute an assignment and assumption agreement of the terms and conditions set forth in the Agreement. 17. Recipient acknowledges that continuation of the Program is dependent upon the availability of CVA funding from the United States Fish and Wildlife Service, and to the extent that funds are not available, the Corporation shall not be obligated to release Rinds under the Agreement. RECIPIENT / By: Scott A.Russell Supervisor Date: NEW YORK STATE ENVIRONMENTAL FACILITIES CORPORATION By: Sabrina M.VIj President and CIE® Date: q :�B STATE OF NEW YORK ) ss.. COUNTY OF ) On this -�d day of J U , 2018, before me personally came ;5( 3&w a, 6 , to me known,who,being by me duly sworn,did depose and say that fft,. is the individual described in and which executed the foregoing instrument, and duly acknowledged to me that signed the same. L 1,l Ido ary Public LAUREN M. STAAND?SH Motarnj Public,State of New Yon% No.®1 ST6164006 Qualified in Suffolk County (commission Expires April 9,2010 RESOLUTION 2018-411 ADOPTED DOC ID: 14070 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2018-411 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON MAY 8, 2018: RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs Supervisor Scott A. Russell to execute the Grant Funding Agreement for the Clean Vessel Assistance Program between the Town of Southold and the New York State Environmental Facilities Corporation in connection with the purchase of a Newtown Pumpout Boat, which shall commence on April 1, 2018 and continue through seven years, subject to the approval of the Town Attorney. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: William P. Ruland, Councilman SECONDER:Louisa P. Evans, Justice AYES: James Dinizio Jr, William P. Ruland, Louisa P. Evans, Scott A. Russell ABSENT: Jill Doherty, Robert Ghosio RECEIVED JUN 1 5 2018 ' 1j Southold Town Clerk Office of the Town Attorney Town of Southold Town Hall Annex, 54375 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone : 631-765-1939 Facsimile: 631-765-6639 MEMORANDUM To: Ms. Elizabeth A. Neville, Town Clerk From: Mary Silleck Secretary to the Town Attorney Date: June 15, 2018 Subject: Agreement between Town of Southold and New York State Environmental Facilities Corporation Clean Vessel Act Assistance Program With respect to the above-referenced matter, I am enclosing the original Agreement together with the Resolution. If you have any questions regarding the enclosed, please do not hesitate to call me. Thank you. cc: Accounting ,y ANDREW M.CUOMOJ ` �tlP.TE®F Governor -- ".R.UNo o Y. Q-C 90Ho oue2 �®rp0frado,�0 T1 Presid nt and CEO May 15, 2018 . D CC� DD � C The Honorable Scott A. Mussell JUN 14 2 018 Supervisor Town of Southold SUPERVISOR'S OFFICE 53095 Main Road TOWNOFSOUTHOLD P.O. ]fox 1179 Southold,NY 11971 RE: Executed Funding Agreement for Clean Vessel Act Assistance Program Town of Southold e Town Fuummpount Boat Dear Supervisor Mussell: Enclosed please find a fully executed Funding Agreement for the Clean Vessel Assistance Program(Agreement)for your records. Pursuant to Section 4 of the Agreement, a Reimbursement Application Form for Approved Project Costs, together with all supporting documentation as outlined in the enclosed document, must be received by the New York State Environmental Facilities Corporation (EFC) on or before Mau°cch 31,2019. Requests for payment received after this date may not be eligible for reimbursement,unless an extension has been granted pursuant to Section 4(a)of the Agreement. Please review the CVAP Reimbursement Guidance Package that will follow via email in order to receive the full benefit of your funding. Thank you for your participation in EFC's Clean Vessel Assistance Program. If you would like further assistance,please call 518.486.9267. A CVAP Representative can also be reached at CVAMefc.n . Sincerely, Sabrina M. Ty President and CEO SMT/BBS Enclosure 625 Broadway,Albany,NY 12207-29971518.402 6924 1 www.efc.ny.gov FUNDING AGREEMENT FOR CLEAN VESSEL ACCT ASSISTANCE PROGRAM THIS AGREEMENT, made as of the 1st day of April 2018 (hereinafter referred to as the "Agreement"), by and between the NEW YORK STATE ENVIRONMENTAL FACILITIES CORPORATION, a New York public benefit corporation (hereinafter referred to as the "Corporation"), with offices located at 625 Broadway, Albany, New York 12207-2997 and the TOWN OF SOUTHOLD, (hereinafter referred to as the "Applicant") with offices located at 53095 Main Road(Route 25),P.O.Box 1179, Southhold,NY 11971. W11TN ESSIETH: WHEREAS, the Corporation is the agency of the State of New York which is the recipient of federal grant funds provided under the Clean Vessel Act Grant Program (hereinafter referred to as the "Program"), such Program being authorized pursuant to the Clean Vessel Act of 1992 and the regulations promulgated thereunder (hereinafter referred to as the "CVA"), for the purpose of providing federal grant funds to states for the construction, renovation, operation and maintenance of pumpout and dump stations to improve water quality; for the purpose of surveying existing pumpout and dump stations; and for the purpose of implementing education programs to increase public awareness of the use and availability of pumpout and dump stations to receive sewage waste from marine recreational vessels; and _- WHEREAS, the New York State Department of Environmental Conservation (hereinafter referred to as the "DEC") is an executive department of the State of New York with jurisdiction over the environmental policy,law and regulations of this State,pursuant to,among other things,Environmental Conservation Law Section 3-0301;and WHEREAS, pursuant to Section 1285(5) of the Public Authorities Law, the Corporation is empowered to provide certain assistance to municipalities,persons and state agencies, including, among other things, advice on matters relating to the identification, collection, handling, separation and disposal of waste,and on matters relating to the prevention and control of air emissions and water discharges, subject to regulation pursuant to the Environmental Conservation Law; and WHEREAS, the Applicant has submitted a Clean Vessel Assistance Program Application (hereinafter referred to as the "Application") to the Corporation seeking such financial assistance; and WHEREAS, a determination has been made that financial assistance is available to the Applicant in the form of reimbursement of approved project costs incurred by the Applicant for the construction, renovation or installation of the marine pumpout or waste reception facility or facilities as described in the Application(hereinafter referred to as the"Project"); and WHEREAS, in reliance upon the information provided by, and the representations and certifications made by the Applicant in the Application and in this Agreement, the Corporation has agreed to reimburse the Applicant for approved project costs (hereinafter referred to as the "Approved Project Costs") in an amount not to exceed 75% of the total estimated project costs (hereinafter referred to as the"Estimated Project Costs"), as set forth in Appendix A, attached hereto and made a part hereof subject to the terms and conditions provided herein. NOW,THEREFORE, in consideration of the promises and the mutual covenants and conditions in this Agreement,the Corporation and the Applicant agree as follows: 1. Term of Agreement. The rights of the Corporation and the obligations and liabilities of the Applicant pursuant to this Agreement shall remain in full force and effect during the term of this Agreement, which shall commence on ApHR 1,2018 and continue through seven years,the estimated useful life of the Project; provided,however,that the terms of Sections 5 and 6 shall survive any termination of this Agreement. 2. Applicant's Covenants/Representations and Warranties. (a)Applicant covenants and agrees that: (i) The applicant has obtained or will obtain and has complied with and will continue to comply with all permits,certificates,licenses and authorizations required for the Project,as well as all applicable current and future local,state and federal laws and regulations relating to the Project, including Title 50 of Part 85 of the Code of Federal Regulations relating to the Program, for the term of this Agreement. The Applicant will dispose of any waste from the Project in accordance 2 with the representations set forth in the Application. The Applicant further agrees to provide written documentation evidencing proper disposal upon request by the Corporation. (ii) The Applicant will cause the construction,renovation and/or installation of the Project in strict accordance with the plans and/or specifications and project cost estimate submitted by Applicant to the Corporation with the Application. (iii) The Applicant affirms and acknowledges that it is aware of all requirements of the Program and the CVA and has complied and will continue to comply with all requirements thereunder,for the term of this Agreement. (iv) The Applicant shall require all contractors and subcontractors utilized by the Applicant, in connection with this Project, to comply with any and all applicable insurance requirements. (v) During the term of this Agreement,the Applicant will not,at any time,sell or convey any portion of any property purchased, developed or necessary to the continued operation of the Project or any portion of the Project as constructed, renovated and/or installed, nor will the Applicant convert any such property or any portion of the Project to any use other than the use forwhich the Project was approved by the Corporation in the Application, without the prior written consent of the Corporation. Any such request to sell or convey must be made in writing by the Applicant to the Corporation. (b)Applicant represents and warrants that: (i) The Applicant has sufficient funds to complete the Project and for the continued operation and maintenance of the Project. (ii) The Applicant has the power and authority to enter into this Agreement and to perform its obligations hereunder,and the signatory executing this Agreement is duly authorized to execute this Agreement on behalf of the Applicant and to bind the Applicant thereto. (iii) Subject to the provisions set forth in paragraph 2(a)(v) herein, the Applicant owns and will continue to own the Project and any property purchased, developed or necessary to the continued operation of the Project. 3 3. Right of Inspection. - (a) The Applicant will provide the Corporation and DEC, and any agents or consultants acting on behalf of the Corporation, access at all reasonable times to the Project, and all surrounding environs, during the construction, renovation and/or installation of the Project and upon completion thereof, as well as access to records, invoices and such other documentation evidencing the progress of the construction, renovation and/or installation of the Project. The Applicant will require that all contracts and subcontracts relating to the Project contain provisions for access and inspection at all reasonable times by the Corporation and/or DEC,their agents or consultants. (b) The Applicant agrees to notify the Corporation when the Project is complete. After receipt of such notice, the Corporation and/or DEC may conduct a final inspection to determine whether the Project as completed meets the requirements necessary to allow the Applicant to be reimbursed for Approved Project Costs. (c) The Applicant acknowledges and agrees that the Corporation,any agents or consultants acting on behalf of the Corporation and/or DEC's inspection of the Project and review of the Application and the documents submitted in connection therewith and with this Agreement is for the purpose of determining compliance with the requirements of the Program, the CVA and this Agreement in connection with granting state assistance to the Applicant for eligible costs incurred in the purchase,construction,renovation and/or installation of the Project. Such inspection and review shall not be construed in any way as a warranty or representation by the Corporation or by any agents or consultants acting on behalf of the Corporation concerning the accuracy of any information provided in the Application and the documents submitted in connection therewith and with this Agreement, or the safety, quality, workmanship, qualifications of the Project or any other aspect of the construction, renovation and/or installation of the Project. 4. Reimbursement by Corporation. (a) Subject to the availability of state and federal Program funds, and upon the Applicant's satisfaction of the conditions set forth below, the Corporation agrees to,reimburse the Applicant for certain costs incurred in connection with the Project in the 4 amount as approved by the Corporation, and in an amount not greater than the amount set forth on Appendix A and for a period of not to exceed one (1) year from the date of this agreement. This one-year reimbursement period may be extended for an additional one (1) year period ,in the sole discretion of the Corporation upon prior written notice from the Corporation to the Applicant.Such reimbursement proceeds will be advanced to the Applicant in accordance with the terms of this Section 4. The Corporation agrees to reimburse the Applicant in an amount not to exceed 75% of the Estimated Project Costs as set forth in Appendix A,but in no event will the Corporation provide reimbursement to the Recipient for Approved Project Costs that exceed the Maximum Sum set forth in Appendix A. Should the Estimated Project Costs and Approved Project Costs increase subsequent to the date of this agreement, and upon prior written notice of approval from the Corporation to the Applicant, the Corporation will forward a revised Appendix A to the Applicant, which will be incorporated into and made a part of this Agreement(the"Revised Appendix A"). (b) The decision with respect to the Applicant's satisfaction of such conditions shall be determined in the sole discretion of the Corporation. Such conditions are as follows: i) Compliance with the covenants, agreements, representations and warranties of the Applicant set forth in Section 2 of this Agreement. ii) Applicant's request of the Corporation for reimbursement and inspection of the Project, and the passing of that inspection. Passing inspection for purposes of this section shall mean that the Corporation is satisfied that the facility is operational and built as proposed by the Applicant, and that the Applicant has undertaken and satisfactorily completed any necessary corrective action requested. iii) Submission of invoices and proof of payment,satisfactory to the Corporation, relating to the costs incurred for eligible work for which the Applicant seeks reimbursement, and such other documentation as the Corporation may request evidencing costs incurred, together with a copy of the Clean Vessel Assistance Program Reimbursement Application Form annexed hereto as Appendix B and made a part hereof. iv) If applicable, a corporate resolution, partnership consent or other documentation for the Applicant, in form and content satisfactory to the Corporation, authorizing the execution, delivery and performance of this Agreement and 5 authorizing the person executing this Agreement on behalf of the Applicant to bind the Applicant thereto. (c) Upon the satisfaction of the requirements set forth in subsection (b) of this Section, the Corporation will reimburse the Applicant in as timely a manner as possible. The Corporation makes no representation or warranty concerning the time period in which reimbursement will be made. (d) The Applicant agrees that it will not accept reimbursement from other municipal,state or federal sources or from insurance proceeds for any expenditure reimbursed under this Agreement. Any expenditure reimbursed by other municipal, state or federal sources or from insurance proceeds shall not be eligible for reimbursement under this Agreement. 5. Remedies Upon Default. (a) The Applicant expressly agrees that the Corporation has absolute and sole discretion to determine that the Applicant has failed to fulfill the obligations of the provisions of this Agreement; or that the Applicant has, in any way,failed to construct,renovate and/or install, or operate and maintain the Project to the satisfaction of the Corporation;or that the Applicant has violated any permit, condition, or provision of law relating to the Project. In any such case, the Corporation shall have the authority to declare the Applicant to be in default, and therefore subject to the remedies set forth herein. (b) If the Applicant is declared in default of any of the terms and conditions of this Agreement, and such default continues for a period of more than thirty (30) days following written notice from the Corporation to the Applicant,the Applicant acknowledges and agrees that the Corporation shall have the authority to enforce any remedy deemed available to the Corporation including, but not limited to,the following: i) The withholding of the reimbursement of any Approved Project Costs not yet provided to the Applicant. 6 ii) The commencement of any process necessary to effectuate the return of the full amount of Approved Project Costs provided to the Applicant in accordance with this Agreement to the Corporation. The Applicant expressly agrees that it shall be obligated .to reimburse the Corporation for any costs necessary to recover said Approved Project Costs,including but not limited to attorney fees and court costs. _ 6. Indemnification. The Applicant agrees to defend, indemnify, save and hold harmless New York State, the Corporation and all their agents and employees from and against all claims,damages,losses,expenses (including, without limitation, reasonable attorney fees) arising out of or in consequence of any negligent act or omission or intentional act of the Applicant, or by reason of the execution of this Agreement or performance of the work provided for in this Agreement, and further agrees to defend at its own cost and expense, any action or proceeding commenced by or against the Applicant, and, at the request of the Corporation,any action or proceeding commenced by or against the Corporation, for the purpose of asserting or defending any claim of whatsoever character arising out of this Agreement. 7. Notices. Any notice,request,demand, statement, authorization, approval, consent or acceptance made hereunder shall be in writing and shall be hand delivered or sent by express service or other reputable courier service,or by registered or certified mail,return receipt requested to the addresses set forth in Section S of this Agreement. Said notice shall be deemed given as follows: (i) if hand delivered or sent by express service or other reputable courier service, the date of delivery, or (ii) if sent by registered or certified mail,return receipt requested, seven(7) calendar days after being postmarked. 7 - 8. Authorized Representatives. (a) The Corporation's authorized representative for the implementation of this Agreement and for approval and direction called for in this Agreement is the Controller & Director of Corporate Operations, or designee, as communicated in writing to the Applicant. Whenever it is provided in this Agreement that notice must be given or other communication sent to the Corporation,the notice or communication will be delivered or sent to: New York State Environmental Facilities Corporation ATTENTION: Controller&Director of Corporate Operations 625 Broadway Albany,New York 12207-2997 E-Mail Address: CVAP@efc.ny.gov Copy to: General Counsel,New York State Environmental Facilities Corporation (b) The Applicant's authorized representative for the implementation of this Agreement is: Name: Supervisor Whenever it is provided in this Agreement that notice must be given or other communication sent to the Applicant,the notices or communications will be delivered or sent to: Applicant: Town of Southold 53095 Main Rd P.O. Box 1179 Southold,NY 11971 E-Mail Address: scottr@southoldtownny,gov 9. Appendices and Attachments. Appendix C, "Standard Clauses For Third-Party Contracts For New York State" is attached hereto and made a part of this Agreement. All such clauses shall inure to the benefit of the Corporation. Additional attachments identified in this Agreement are attached hereto and also made a part of this Agreement. 8 +- i i 10. Assignment. I _ The Agreement and the rights and obligations of the Applicant hereunder may not be assigned I without the prior written consent of the Corporation. 11. Entire Agreement; Separability. This Agreement contains the provisions, conditions, and promises agreed to between the parties. If any part of this Agreement is held to be invalid or unenforceable, the invalidity or unenforceability of such will not affect the remainder of this Agreement and this Agreement will remain valid as'if the invalid or unenforceable part had not been contained. 12. Amendments. This Agreement may only be amended by a written instrument signed by both parties. The requirements of this section 12, however, shall not apply to the extension of the one (1) year reimbursement;period or the Revised Appendix A provisions of section 4 of this Agreement. 13. Waivers. Failure;of the Corporation to enforce any one or more of the conditions contained herein,shall not be construed as a waiver of such conditions. Any waiver in any instance or under any particular circumstance shall not be effective unless in writing and shall not be considered a waiver of such condition in any other instance or any other circumstance. 14. Governing Law. This Agreement is and shall be deemed to be a contract entered into pursuant to the laws of the State of New York and shall in all respects be governed, construed, applied and enforced in accordance with the laws of the State of New York, except where the Federal supremacy clause i requires otherwise. 15. Construction of Agreement. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of such paragraphs and shall not be given any consideration in the construction of this Agreement. i 9 IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto on the day and year appearing following their respective signatures. Certification: "In addition to the acceptance of this contract,I also _ Certify that original copies of this signature page will be attached to all other exact copies of this contract." NEW YORK ST'AT'E ENVIRONMENTAL FACILITIES CORPORATION r By I`a'Me. Sabr4n&I1>Ty T ifle: President and CEO Date: > i 4 APPLICANT' Iily: J� IYaneee Scott A.RusseRl T i le: Supervisor Date: I'I 10 _ i li STATE OF NEW YORK ) ss.: COUNTY OF S o @4j On this Ute ' day of MCN ,2018,before me personally cames.)LO-t , .9��5��B_Q,to me known, who, being by me duly sworn, did depose and say that-L-is the SL cof the �,,�_, f, o the:corporation or partnership described in and which executed the foregoing instrument; and that �g signed name thereto by the authority of said corporation or partnership. Notary Public MICHELLE L. YOMASZEWSKI NOTARY PUBLIC-SPATE OF NEW YORK No, 01706156671 ®u®Ilfled In Suffolk County My Comm18SIOn Expires November 27, 2018 r j II II, 11 -- APPENDIX A I I ESTIMATED PROJECT COSTS FACILITY NAME: Town of Southold PROJECT NAME: Town of Southold-Town Pumpout Boat ESTIMATED PROJECT COSTS $98,500,00 APPROVED PROJECT COSTS $609000000 M[AXI[MIUI�It SUM $609000000 NOTE: "Estimated Project Costs"means the projected costs of the Applicant that are eligible for funding from the Corporation;that are allowable costs and that are reasonable,necessary and allocable by the Applicant to the project. "Approved Project Costs"means funding up to 75%of total Estimated Project Costs,not to exceed the Maximum Sum of$35,000 per pumpout project or $60,000 per pumpout boat project. 12 - APPENDIX B CLEAN VESSEL ACT PROGRAM REIMBURSEMENT A-PPLICATION FORM New fork State Environmental Facilities Corporation Attention: Angela Petrone 625 Broadway Albany,New York 12207 Re: Town of Southold-Town Pumpout Boat Ladies and Gentlemen: Pursuant to a Clean Vessel Act Funding Agreement (the "Agreement') dated as of 1st day of April 2018 between the New York State Environmental Facilities Corporation and the Town of Southold, we hereby request disbursement in the amount of$ for project costs. In connection with this requisition we hereby represent and certify the following: 1. This requisition is requisition number 2. " The amount of this requisition, together with all prior requisitions, does not exceed the Approved Project Costs. 3. All amounts requisitioned hereunder are for eligible project costs which have not been included in any previous disbursement. 4. 1 hereby certify that expenses represented in this reimbursement request reflect actual costs for materials and services that were used for the sole purpose of completing the approved Clean Vessel project stated above and none of these claims were expended, in part or in full, for any other purpose. 5. I hereby acknowledge that amounts disbursed pursuant hereto are subject to all terms and conditions of the Agreement and that all representations, warranties and covenants are applicable with respect thereto. 6. Disbursement by the Corporation does not act as a waiver of any applicable term or condition of the Agreement or constitute a confirmation by the Corporation that any obligation thereunder has been satisfied. Date: 74 Signature Name and Title of Authorized Representative for Applicant (Print or type clearly) 13 - APPENLI X C STANDARD CLAUSES FOR THIRD-PARTY CONTRACTS LOIN NEW YORK STATE _ The attached contract("the Contract"or"this Contract")has been determined to be a contract"for"the State of New York("the State"). The Contract is between an entity acting for the State pursuant to an agreement with the State(the"State Contractor")and another entity(the"Third-Party Contractor",which refers to any party other than the State Contractor or the State,whether a contractor, licenser, licensee, lessor, lessee or any other party). In light of the foregoing,the parties to the Contract(whether it may be a license, lease, amendment or other agreement of any kind)agree to be bound by the following clauses which are hereby made a part of the Contract: 1.LIMITATION OF STATUS LIABILITY. The State shall have no liability hereunder to the Third- Party Contractor. The State's liability, if any, is to the State Contractor pursuant to an agreement between the State and the State Contractor("the Agreement")which is separate and apart from this Contract,and, in accordance with the executory clause to the Agreement the State's liability is limited to the funds appropriated and available for such Agreement. 2.NON-ASSIGNMENT CLAUSE. Consistent with the provisions of Section 138 of the State Finance Law,this Contract may not be assigned by the Third-Party Contractor or its right,title or interest therein assigned,transferred, conveyed,sublet or otherwise disposed of without the previous consent, in writing, of the State Contractor and the State and any attempts to assign the Contract without the State's written consent are null and void.The Third-Party Contractor may,however,assign its right to receive payment without the State Contractor's and the State's prior written consent unless this Contract concerns Certificates of Participation pursuant to Article 5-A of the State Finance Law. 3. COMPTROLLER'S APPROVAL. In accordance with Section 112 of the State Finance Law, if this Contract exceeds$50,000(or, if this Contract is for the State University or City University of New York, Section 355 or Section 6218 of the Education Law and exceeds the minimum thresholds agreed to by the Office of the State Comptroller for certain S.U.N.Y. and C.U.N.Y. contracts), or if this is an amendment for any amount to a contract which, as so amended,exceeds said statutory amount,or if the Contract involves consideration other than the payment of money for the State and the consideration being given for the State has a value or reasonably estimated value that exceeds $10,000, it shall not be valid, effective or binding until it has been approved by the State Comptroller and filed in his office. Comptroller's approval of Contracts let for the Office of General Services is required when such Contracts exceed$85,000(State Finance Law Section 163.6.a).Failure to obtain the Comptroller's approval of this Contract,where required,will preclude any payment by the State to the State Contractor under the Agreement which would be used to fund this Contract. l 4.WORKERS'ERS' CO10'1IPlENSATION B ENlEFRTS. Consistent with the provisions of Section 142 of the State Finance Law,this Contract shall be void and of no force and effect unless the Third-Party Contractor shall provide and maintain coverage during the life of this Contract for the benefit of such employees as are required to be covered by the provisions of the Workers'Compensation Law. 5.NON-IIDIISCI[811MIINATRON REQUIREMENTS.To the extent required by Article 15 of the Executive Law(also known as the Human Rights Law)and all other State and Federal statutory and constitutional non-discrimination provisions,the Third-Party Contractor will not discriminate against any employee or applicant for employment because of race, creed, color, sex,national origin,sexual orientation,age, disability,genetic predisposition or carrier status, or marital status. Furthermore, in accordance with Section 220-e of the Labor Law,if this is a contract for the construction, alteration or repair of any public building or public work or for the manufacture, sale or distribution of materials, equipment or supplies,and to the extent that this Contract shall be performed within the State of New York,the Third-Party Contractor agrees that neither it nor its subcontractors shall, by reason of race, creed, color, disability,sex,or national origin: (a)discriminate in hiring against any New York State 14 1 citizen who is qualified and available to perform the work; or(b)discriminate against or intimidate any = employee hired for the performance of work under this Contract.If this is a building service contract as defined in Section 230 of the Labor Law,then, in accordance with Section 239 thereof,the Third-Party Contractor agrees that neither it nor its subcontractors shall by reason of race, creed, color, national origin, age, sex or disability: (a) discriminate in hiring against any New York State citizen who is qualified and available to perform the work; or(b)discriminate against or intimidate any employee hired for the performance of work under this Contract. The Third-Party Contractor is subject to fines of$50.00 per person per day for any violation of Section 220-e or Section 239 as well as possible termination of this Contract and forfeiture of all moneys due hereunder for a second or subsequent violation. 6.WAGE AND HOURS]PROVISIONS. If this is a public work contract covered by Article 8 of the Labor Law or a building service contract covered by Article 9 thereof,neither the Third-Party Contractor's employees nor the employees of its subcontractors may be required or permitted to work more than the number of hours or days stated in said statutes,except as otherwise provided in the Labor Law and as set forth in prevailing wage and supplement schedules issued by the State Labor Department. Furthermore,the Third-Party Contractor and its subcontractors must pay at least the prevailing wage rate and 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. 1.NON-COLLUSIVE BIDDING SDI NG CIE]RTI FICATION. Consistent with the provisions of Section 139-d of the State Finance Law, if this Contract was awarded based upon the submission of bids,the Third- Party Contractor warrants,under penalty of perjury,that its bid was arrived at independently and without collusion aimed at restricting competition.The Third-Party Contractor further warrants that, at the time the Third-Party Contractor submitted its bid, an authorized and responsible person executed and delivered to the State Contractor or the State a non-collusive bidding certification on the Third-Party Contractor's behalf. 8. INTERNATIONAL BOYCOTT PROHIBITION. Consistent with the provisions of Section 220-f of the Labor Law and Section 139-h of the State Finance Law,if this Contract exceeds$5,000,the Third- Party Contractor agrees, as a material condition of the Contract,that neither the Third-Party Contractor nor any substantially owned or affiliated person, firm,partnership or corporation has participated, is participating, or shall participate in an international boycott in violation of the federal Export Administration Act of 1979 (50 USC App. Sections 2401 et seq.)or regulations thereunder. If such Third- Party Contractor, or any of the aforesaid affiliates of Third-Party Contractor, is convicted or is otherwise _ found to have violated said laws or regulations upon the final determination of the United States Commerce Department or any other appropriate agency of the United States subsequent to the Contract's execution,such Contract,amendment or modification thereto shall be rendered forfeit and void.The Third-Party Contractor shall so notify the State Comptroller within five(5) business days of such conviction, determination or disposition of appeal(2NYCRR 105.4). 9.RECORDS. The Third-Party Contractor shall establish and maintain complete and accurate books, records,documents, accounts and other evidence directly pertinent to performance under this Contract (hereinafter, collectively, "the Records").The Records must be kept for the balance of the calendar year in which they were made and for six(6) additional years thereafter.The State Comptroller,the Attorney General and any other person or entity authorized to conduct an examination,as well as the agency or agencies involved in this Contract, shall have access to the Records during normal business hours at an office of the Third-Party Contractor within the State of New York or,if no such office is available, at a mutually agreeable and reasonable venue within the State,for the term specified above for the purposes of inspection,auditing and copying. The State shall take reasonable steps to protect from public disclosure any of the Records which are exempt from disclosure under Section 87 of the Public Officers Law(the "Statute")provided that: (i)the Third-Party Contractor shall timely inform an appropriate State official, in writing,that said records should not be disclosed; and(ii) said records shall be sufficiently identified;and 15 r (iii)designation of said records as exempt under the Statute is reasonable.Nothing contained herein shall diminish,or in any way adversely affect,the State's right to discovery in any pending or future litigation. 10. EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITIES AND WOMEN. Consistent with the provisions of Section 312 of the Executive Law,if this Contract is: (i)a written agreement or purchase order instrument,providing for a total expenditure in excess of$25,000.00,whereby the State Contractor is committed to expend or does expend funds in return for labor,services, supplies,equipment, materials or any combination of the foregoing,to be performed for, or rendered or furnished to the State Contractor; or(ii)a written agreement in excess of$100,000.00 whereby the State Contractor is committed to expend or does expend funds for the acquisition, construction, demolition,replacement, major repair or renovation of real property and improvements thereon; or (iii)a written agreement in excess of$100,000.00 whereby the owner of a State assisted housing project is committed to expend or does expend funds for the acquisition,construction, demolition,replacement,major repair or renovation of real property and improvements thereon for such project,then: (a)The Third-Party Contractor will not discriminate against employees or applicants for employment because of race, creed, color,national origin,sex, age,disability or marital status, and will undertake or continue existing programs of affirmative action to ensure that minority group members and women are afforded equal employment opportunities without discrimination.Affirmative action shall mean recruitment, employment,job assignment,promotion,upgradings, demotion,transfer,layoff, or termina- tion and rates of pay or other forms of compensation; (b) at the request of the State,the Third-Party Contractor shall request each employment agency, labor union, or authorized representative of workers with which it has a collective bargaining or other agreement or understanding,to furnish a written statement that such employment agency, labor union or representative will not discriminate on the basis of race, creed, color,national origin, sex,age,disability or marital status and that such union or representative will affirmatively cooperate in the implementation of the Third-Party Contractor's obligations herein; and (c)the Third-Party Contractor shall state,in all solicitations or advertisements for employees,that, in the performance of the Contract, all qualified applicants will be afforded equal employment opportunities without discrimination because of race, creed, color,national origin,sex,age,disability or marital status. The Third-Party Contractor will include the provisions of"a", "b", and "c" above, in every subcontract over$25,000.00 for the construction,demolition,replacement,major repair,renovation, planning or design of real property and improvements thereon(the "Work") except where the Work is for the beneficial use of the Third-Party Contractor. Section 312 does not apply to: (i)work,goods or services unrelated to this Contract;or(ii) employment outside New York State ; or(iii)banking services, insurance policies or the sale of securities.The State shall consider compliance by a Third-Party Contractor or subcontractor with the requirements of any federal law concerning equal employment opportunity which effectuates the purpose of this section. The State shall determine whether the imposition of the requirements of the provisions hereof duplicate or conflict with any such;federal law and if such duplication or conflict exists,the State shall waive the applicability of Section 312 to the extent of such duplication or conflict. The Third-Party Contractor will comply with all duly promulgated and lawful rules and regulations of the Governor's Office of Minority and Women's Business Development pertaining hereto. 11. CONFLICTING TERMS.In the event of a conflict between the terms of the Contract(including any and all attachments thereto and amendments thereof) and the terms of this Appendix C,the terms of this Appendix C shall control. 12. GOVERNING LAW.This Contract shall be governed by the laws of the State of New York except where the Federal supremacy clause requires otherwise. 16 ' 13. NO ARBITRATION.Disputes involving this Contract, including the breach or alleged breach - thereof,may not be submitted to binding arbitration(except where statutorily authorized), but must, instead,be heard in a court of competent jurisdiction of the State of New York. 141. SERVICE OF PROCESS . In addition to the methods of service allowed by the State Civil Practice Law&Rules("CPLR"), in any litigation arising under or with respect to this Contract,the Third-Party Contractor hereby consents to service of process upon it by registered or certified mail, return receipt requested. Service hereunder shall be complete upon the Third-Party Contractor's actual receipt of process or upon the receipt,by the entity attempting service on the Third-Party Contractor,of the return thereof by the United States Postal Service as refused or undeliverable. The Third-Party Contractor must promptly notify the State Contractor,in writing, of each and every change of address to which service of process can be made. Service to the last known address of the Third-Party Contractor shall be sufficient. The Third-Party Contractor will have thirty(30)calendar days after service hereunder is complete in which to respond. 15.PROHIBITION ON PURCHASE OF TROPICAL HARDWOODS .The Third-Party Contractor certifies and warrants that all wood products to be used under this Contract award will be consistent with, but not limited to,the provisions of State Finance Law§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 Third-Party Contractor to establish to meet with the approval of the State. In addition,when any portion of this Contract involving the use of woods,whether supply or installation, is to be performed by any subcontractor,the prime Third-Party Contractor will indicate and certify in the submitted bid proposal that the subcontractor has been informed and is in compliance with the language regarding use of tropical hardwoods as detailed in State Finance Law §165.Any such use must meet with the approval of the State; otherwise,the bid may not be considered responsive.Under bidder certifications,proof of qualification for exemption will be the responsibility of the Third-Party Contractor to meet with the approval of the State. 16. MACBRIOD E FAIR EMPLOYMENT PRINCIPLES. Consistent with the provisions of the MacBride Fair Employment Principles(Chapter 807 of the Laws of 1992), the Third-Party Contractor hereby stipulates that the Third-Party Contractor either(a)has no business operations in Northern Ireland, _ or(b)shall take lawful steps in good faith to conduct any business operations in Northern Ireland in accordance with the MacBride Fair Employment Principles(as described in Section 165 of the New York State Finance Law),and shall permit independent monitoring of compliance with such principles. 17. OMNIBUS PROCUREMENT ACT OF 1992. It is the policy of New York State to maximize opportunities for the participation of New York State business enterprises,including minority and women-owned business enterprises as bidders,subcontractors and suppliers on its procurement Contracts. Information on the availability of New York State subcontractors and suppliers is available from: NYS Department of Economic Development Division for Small Business Albany,New York 12245 Telephone: 518-292-5100 Email: opanesd.ny_gov A directory of certified minority and women-owned business enterprises is available from: NYS Department of Economic Development Division of Minority and Women's Business Development 633 Third Avenue 17 } ° New York,New York 10017 Telephone: 212-803-2414 Email:mwbecertification@esd.ny.gov hLtps://ny.newnycontracts.com/FrontEnd/VendorSearchPublic.a Consistent with the provisions of Omnibus Procurement Act of 1992, by signing this bid proposal or Contract, as applicable,Third-Party Contractors certify that whenever the total bid amount is greater than $1 million: (a)The Third-Party Contractor has made reasonable efforts to encourage the 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; (b)The Third-Party Contractor has acted consistent with the provisions of the Federal Equal Opportunity Act of 1972 (P.L. 92-261), as amended; (c)The Third-Party Contractor agrees to make reasonable efforts to provide notification to New York State residents of employment opportunities on this project through listing any such positions with the Job Service Division of the New York State Department of Labor, or providing such notification in such manner as is consistent with existing collective bargaining contracts or agreements.The Third-Party Contractor agrees to document these efforts and to provide said documentation to the State upon request; and (d)The Third-Party Contractor acknowledges notice that the State may seek to obtain offset credits from foreign countries as a result of this Contract and agrees to cooperate with the State in these efforts. 18. RECIPROCITY AND SANCTIONS PROVISIONS.Bidders are hereby notified that if their principal place of business is located in a country,nation,province, state or political subdivision that penalizes New York State vendors,and if the goods or services they offer will be substantially produced or performed outside New York State, consistent with the provisions of the Omnibus Procurement Act 1994 and 2000 amendments (Chapter 684 and Chapter 383,respectively),they will be denied contracts which they would otherwise obtain.NOTE:As of May 15, 2002,the list of discriminatory jurisdictions subject to this provision includes the states of South Carolina,Alaska,West Virginia, Wyoming, - Louisiana and Hawaii. Contact NYS Department of Economic Development for a current list of jurisdictions subject to this provision. 19. PURCHASES OF APPAREL. Consistent with the provisions of State Finance Law §162(4-a),the State and the State Contractor shall not purchase any apparel from any vendor unable or unwilling to certify that: (i)such apparel was manufactured in compliance with all applicable labor and occupational safety laws,including,but not limited to,child labor laws,wage and hours laws and workplace safety laws, and(ii)vendor will supply,with its bid (or, if not a bid situation,prior to or at the time of signing a contract),if known,the names and addresses of each subcontractor and a list of all manufacturing plants to be utilized by the bidder. 18 © � RECEIVED MAY 2 4 2018 Southold Town Clerk Office of the Town Attorney Town of Southold Town Hall Annex, 54375 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Telephone : 631-765-1939 Facsimile: 631-765-6639 MEMORANDUM To: Ms. Elizabeth A. Neville, Town Clerk From: Mary Silleck Secretary to the Town Attorney Date: May 21, 2018 Subject: Agreement between Town of Southold and NYS Environmental Facilities Corporation Clean Vessel Act Assistance Program — Pumpout Boat With respect to the above-referenced matter, I am enclosing the original Agreement together with the Resolution. If you have any questions regarding the enclosed, please do not hesitate to call me. Thank you. /ms Enclosures cc: Accounting Trustees INEWYORK ANDREW M.CUOMO E OF Environmental Governor ORTUNITY. ' ' SABRINA M.TY Facilities Corporation President and CEO May 15, 2018 WE JD The Honorable Scott A. Russell MAY 8 2018 Supervisor Town of Southold SUPERVISOR'S OFFICE 53095 Main Road 'OWN OF SOUTHOLD P.O. Box 1179 Southold,NY 11971 RE: Executed Funding Agreement for Clean Vessel Act Assistance Program Town of Southold-Town Pumpout Boat Dear Supervisor Russell: Enclosed please find a fully executed Funding Agreement for the Clean Vessel Assistance Program(Agreement) for your records. Pursuant to Section 4 of the Agreement, a Reimbursement Application Form for Approved Project Costs,together with all supporting documentation as outlined in the enclosed document, must be received by the New York State Environmental Facilities Corporation (EFC) on or before March 31,2019. Requests for payment received after this date may not be eligible for reimbursement,unless an extension has been granted pursuant to Section 4(a)of the Agreement. Please review the CVAP Reimbursement Guidance Package that will follow via email in order to receive the full benefit of your funding. Thank you for your participation in EFC's Clean Vessel Assistance Program. If you would like further assistance,please call 518.486.9267. A CVAP Representative can also be reached at CVAP@efc.ny.gov. Sincerely, Sabrina M. Ty President and CEO SMT/BBS Enclosure 625 Broadway,Albany,NY 12207-29971518.402.6924 1 www.efc.ny.gov 4 FUNDING AGREEMENT FOR CLEAN VESSEL ACT ASSISTANCE PROGRAM THIS AGREEMENT, made as of the 1st day of April 2018 (hereinafter referred to as the "Agreement"), by and between the NEW YORK STATE ENVIRONMENTAL FACILITIES CORPORATION, a New York public benefit corporation (hereinafter referred to as the "Corporation"), with offices located at 625 Broadway, Albany, New York 12207-2997 and the TOWN OF SOUTHOLD, (hereinafter referred to as the "Applicant") with offices located at 53095 Main Road(Route 25),P.O.Box 1179, Southhold,NY 11971. WITNESSETH: WHEREAS, the Corporation is the agency of the State of New York which is the recipient of federal grant funds provided under the Clean Vessel Act Grant Program (hereinafter referred to as the "Program"), such Program being authorized pursuant to the Clean Vessel Act of 1992 and the regulations promulgated thereunder (hereinafter referred to as the "CVA"), for the purpose of providing federal grant funds to states for the construction, renovation, operation and maintenance of pumpout and dump stations to improve water quality; for the purpose of surveying existing pumpout and dump stations; and for the purpose of implementing education programs to increase public awareness of the use and availability of pumpout and dump stations to receive sewage waste from marine recreational vessels; and WHEREAS, the New York State Department of Environmental Conservation (hereinafter referred to as the 'DEC") is an executive department of the State of New York with jurisdiction over the environmental policy,law and regulations of this State,pursuant to,among other things,Environmental Conservation Law Section 3-0301; and WHEREAS, pursuant to Section 1285(5) of the Public Authorities Law, the Corporation is empowered to provide certain assistance to municipalities,persons and state agencies, including, among other things, advice on matters relating to the identification, collection, handling, separation and disposal of waste,and on matters relating to the prevention and control of air emissions and water discharges, subject to regulation pursuant to the Environmental Conservation Law; and Y WHEREAS, the Applicant has submitted a Clean Vessel Assistance Program Application (hereinafter referred to as the "Application") to the Corporation seeking such financial assistance; and WHEREAS, a determination has been made that financial assistance is available to the Applicant in the form of reimbursement of approved project costs incurred by the Applicant for the construction, renovation or installation of the marine pumpout or waste reception facility or facilities as described in the Application(hereinafter referred to as the "Project"); and WHEREAS, in reliance upon the information provided by, and the representations and certifications made by the Applicant in the Application and in this Agreement, the Corporation has agreed to reimburse the Applicant for approved project costs (hereinafter referred to as the "Approved Project Costs") in an amount not to exceed 75% of the total estimated project costs (hereinafter referred to as the"Estimated Project Costs"), as set forth in Appendix A, attached hereto and made a part hereof subject to the terms and conditions provided herein. NOW,THEREFORE,in consideration of the promises and the mutual covenants and conditions in this Agreement,the Corporation and the Applicant agree as follows: 1. Term of Agreement. The rights of the Corporation and the obligations and liabilities of the Applicant pursuant to this Agreement shall remain in full force and effect during the term of this Agreement, which shall commence on April 1,2018 and continue through seven years,the estimated useful life of the Project; provided,however,that the terms of Sections 5 and 6 shall survive any termination of this Agreement. 2. Applicant's Covenants/Representations and Warranties. (a)Applicant covenants and agrees that: (i) The applicant has obtained or will obtain and has complied with and will continue to comply with all permits,certificates,licenses and authorizations required for the Project,as well as all applicable current and future local,state and federal laws and regulations relating to the Project, including Title 50 of Part 85 of the Code of Federal Regulations relating to the Program, for the term of this Agreement. The Applicant will dispose of any waste from the Project in accordance 2 with the representations set forth in the Application. The Applicant further agrees to provide written documentation evidencing proper disposal upon request by the Corporation. (ii) The Applicant will cause the construction,renovation and/or installation of the Project in strict accordance with the plans and/or specifications and project cost estimate submitted by Applicant to the Corporation with the Application. (iii) The Applicant affirms and acknowledges that it is aware of all requirements of the Program and the CVA and has complied and will continue to comply with all requirements thereunder,for the term of this Agreement. (iv) The Applicant shall require all contractors and subcontractors utilized by the Applicant, in connection with this Project, to comply with any and all applicable insurance requirements. (v) During the term of this Agreement,the Applicant will not,at any time,sell or convey any portion of any property purchased, developed or necessary to the continued operation of the Project or any portion of the Project as constructed, renovated and/or installed, nor will the Applicant convert any such property or any portion of the Project to any use other than the use for which the Project was approved by the Corporation in the Application, without the prior written consent of the Corporation. Any such request to sell or convey must be made in writing by the Applicant to the Corporation. (b)Applicant represents and warrants that: (i) The Applicant has sufficient funds to complete the Project and for the continued operation and maintenance of the Project. (ii) The Applicant has the power and authority to enter into this Agreement and to perform its obligations hereunder,and the signatory executing this Agreement is duly authorized to execute this Agreement on behalf of the Applicant and to bind the Applicant thereto. (iii) Subject to the provisions set forth in paragraph 2(a)(v) herein, the Applicant owns and will continue to own the Project and any property purchased, developed or necessary to the continued operation of the Project. 3 3. Right of Inspection. (a) The Applicant will provide the Corporation and DEC, and any agents or consultants acting on behalf of the Corporation, access at all reasonable times to the Project, and all surrounding environs, during the construction, renovation and/or installation of the Project and upon completion thereof, as well as access to records, invoices and such other documentation evidencing the progress of-the construction, renovation and/or installation-of the Project. The Applicant will require that all contracts and subcontracts relating to the Project contain provisions for access and inspection at all reasonable times by the Corporation and/or DEC,their agents or consultants. (b) The Applicant agrees to notify the Corporation when the Project is complete. After receipt of such notice, the Corporation and/or DEC may conduct a final inspection to determine whether the Project as completed meets the requirements necessary to allow the Applicant to be reimbursed for Approved Project Costs. (c) The Applicant acknowledges and agrees that the Corporation,any agents or consultants acting on behalf of the Corporation and/or DEC's inspection of the Project and review of the Application and the documents submitted in connection therewith and with this Agreement is for the purpose of determining compliance with the requirements of the Program, the CVA and this Agreement in connection with granting state assistance to the Applicant for eligible costs incurred in the purchase,construction,renovation and/or installation of the Project. Such inspection and review shall not be construed in any way as a warranty or representation by the Corporation or by any agents or consultants acting on behalf of the Corporation concerning the accuracy of any information provided in the Application and the documents submitted in connection therewith and with this Agreement, or the safety, quality, workmanship, qualifications of the Project or any other aspect of the construction, renovation and/or installation of the Project. 4. Reimbursement by Corporation. (a) Subject to the availability of state and federal Program funds,and upon the Applicant's satisfaction of the conditions set forth below, the Corporation agrees to reimburse the Applicant for certain costs incurred in connection with the Project in the 4 amount as approved by the Corporation, and in an amount not greater than the amount set forth on Appendix A and for a period of not to exceed one (1) year from the date of this agreement. This one-year reimbursement period may be extended for an additional one (1) year period in the sole discretion of the Corporation upon prior written notice from the Corporation to the Applicant.Such reimbursement proceeds will be advanced to the Applicant in accordance with the terms of this Section 4. The Corporation agrees to reimburse the Applicant in an amount not to exceed 75% of the Estimated Project Costs as set forth in Appendix A,but in no event will the Corporation provide reimbursement to the Recipient for Approved Project Costs that exceed the Maximum Sum set forth in Appendix A. Should the Estimated Project Costs and Approved Project Costs increase subsequent to the date of this agreement, and upon prior written notice of approval from the Corporation to the Applicant, the Corporation will forward a revised Appendix A to the Applicant, which will be incorporated into and made a part of this Agreement(the"Revised Appendix A"). (b) The decision with respect to the Applicant's satisfaction of such conditions shall be determined in the sole discretion of the Corporation. Such conditions are as follows: i) Compliance with the covenants, agreements, representations and warranties of the Applicant set forth in Section 2 of this Agreement. ii) Applicant's request of the Corporation for reimbursement and inspection of the Project,and the passing of that inspection. Passing inspection for purposes of this section shall mean that the Corporation is satisfied that the facility is operational and built as proposed by the Applicant, and that the Applicant has undertaken and satisfactorily completed any necessary corrective action requested. iii) Submission of invoices and proof of payment, satisfactory to the Corporation, relating to the costs incurred for eligible work for which the Applicant seeks reimbursement, and such other documentation as the Corporation may request evidencing costs incurred, together with a copy of the Clean Vessel Assistance Program Reimbursement Application Form annexed hereto as Appendix B and made a part hereof. iv) If applicable, a corporate resolution, partnership consent or other documentation for the Applicant, in form and content satisfactory to the Corporation, authorizing the execution, delivery and performance of this Agreement and 5 authorizing the person executing this Agreement on behalf of the Applicant to bind the Applicant thereto. (c) Upon the satisfaction of the requirements set forth in subsection (b) of this Section, the Corporation will reimburse the Applicant in as timely a manner as possible. The Corporation makes no representation or warranty concerning the time period in which reimbursement will be made. (d) The Applicant agrees that it will not accept reimbursement from other municipal,state or federal sources or from insurance proceeds for any expenditure reimbursed under this Agreement. Any expenditure reimbursed by other municipal,state or federal sources or from insurance proceeds shall not be eligible for reimbursement under this Agreement. 5. Remedies Upon Default. (a) The Applicant expressly agrees that the Corporation has absolute and sole discretion to determine that the Applicant has failed to fulfill the obligations of the provisions of this Agreement; or that the Applicant has, in any way, failed to construct,renovate and/or install, or operate and maintain the Project to the satisfaction of the Corporation;or that the Applicant has violated any permit, condition, or provision of law relating to the Project. In any such' case, the Corporation shall have the authority to declare the Applicant to be in default, and therefore subject to the remedies set forth herein. (b) If the Applicant is declared in default of any of the terms and conditions of this Agreement, and such default continues for a period of more than thirty (30) days following written notice from the Corporation to the Applicant,the Applicant acknowledges and agrees that the Corporation shall have the authority to enforce any remedy deemed available to the Corporation including, but not limited to,the following: i) The withholding of the reimbursement of any Approved Project Costs not yet provided to the Applicant. 6 ii) The commencement of any process necessary to effectuate the return of the full amount of Approved Project Costs provided to the Applicant in accordance with this Agreement to the Corporation. The Applicant expressly agrees that it shall be obligated to reimburse the Corporation for any costs necessary to recover said Approved Project Costs, including but not limited to attorney fees and court costs. 6. Indemnification. The Applicant agrees to defend, indemnify, save and hold harmless New York State, the Corporation and all their agents and employees from and against all claims,damages,losses,expenses (including, without limitation, reasonable attorney fees) arising out of or in consequence of any negligent act or omission or intentional act of the Applicant, or by reason of the execution of this Agreement or performance of the work provided for in this Agreement, and further agrees to defend at its own cost and expense, any action or proceeding commenced by or against the Applicant, and, at the request of the Corporation,any action or proceeding commenced by or against the Corporation, for the purpose of asserting or defending any claim of whatsoever character arising out of this Agreement. 7. Notices. Any notice,request,demand,statement,authorization,approval,consent or acceptance made hereunder shall be in writing and shall be hand delivered or sent by express service or other reputable courier service,or by registered or certified mail,return receipt requested to the addresses set forth in Section 8 of this Agreement. Said notice shall be deemed given as follows: (i) if hand delivered or sent by express service or other reputable courier service, the date of delivery, or (ii) if sent by registered or certified mail,return receipt requested,seven(7) calendar days after being postmarked. 7 8. Authorized Representatives. (a) The Corporation's authorized representative for the implementation of this Agreement and for approval and direction called for in this Agreement is the Controller & Director of Corporate Operations, or designee, as communicated in writing to the Applicant. Whenever it is provided in this Agreement that notice must be given or other communication sent to the Corporation,the notice or communication will be delivered or sent to: New York State Environmental Facilities Corporation ATTENTION: Controller&Director of Corporate Operations 625 Broadway Albany,New York 12207-2997 E-Mail Address: CVAP@efc.ny.gov Copy to: General Counsel,New York State Environmental Facilities Corporation (b) The Applicant's authorized representative for the implementation of this Agreement is: Name: Supervisor Whenever it is provided in this Agreement that notice must be given or other communication sent to the Applicant,the notices or communications will be delivered or sent to: Applicant: Town of Southold 53095 Main Rd P.O. Box 1179 Southold,NY 11971 E-Mail Address: scottr@southoldtownny.gov 9. Appendices and Attachments. Appendix C, "Standard Clauses For Third-Party Contracts For New York State" is attached hereto and made a part of this Agreement. All such clauses shall inure to the benefit of the Corporation. Additional attachments identified in this Agreement are attached hereto and also made a part of this Agreement. 8 10. Assignment. The Agreement and the rights and obligations of the Applicant hereunder may not be assigned without the prior written consent of the Corporation. 11. Entire Agreement; Separability. This Agreement contains the provisions, conditions, and promises agreed to between the parties. If any part of this Agreement is held to be invalid or-unenforceable, the invalidity or unenforceability of such will not affect the remainder of this Agreement and this Agreement will remain valid as if the invalid or unenforceable part had not been contained. 12. Amendments. This Agreement may only be amended by a written instrument signed by both parties. The requirements of this section 12, however, shall not apply to the extension of the one (1) year reimbursement period or the Revised Appendix A provisions of section 4 of this Agreement. 13. Waivers. Failure of the Corporation to enforce any one or more of the conditions contained herein,shall not be construed as a waiver of such conditions. Any waiver in any instance or under any particular circumstance shall not be effective unless in writing and shall not be considered a waiver of such condition in any other instance or any other circumstance. 14. Governing Law. This Agreement is and shall be deemed to be a contract entered into pursuant to the laws of the State of New York and shall in all respects be governed, construed, applied and enforced in accordance with the laws of the State of New York, except where the Federal supremacy clause requires otherwise. 15. Construction of Agreement. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of such paragraphs and shall not be given any consideration in the construction of this Agreement. 9 1 IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto on the day and year appearing following their respective signatures. Certification: "In addition to the acceptance of this contract,I also Certify that original copies of this signature page will be attached to all other exact copies of this contract." NEW YORK STATE ENVIRONMENTAL FACILITIES CORPORATION By: Name. Sabri a M.Ty Title: President and CEO Date: l C APPLICANT By: Name: Scott A.Russell Title: Supervisor Date: 5 - l 0-i 10 STATE OF NEW YORK ) ss.: COUNTY OF Fo\ ) On this 10-'' day of M" ,2018,before me personally came Scott A. RUSSe,I I,to me known, who,being by me duly sworn, did depose and say that he-is the ei-u1SCdf the k,, r) EN C QiDL�,the corporation or partnership described in and which executed the foregoing instrument; and that_A,,Q signed--- {, ,S --name-thereto by-the authority of said corporation or-partnership.- - - - 1-1 Notary Public MICHELLE L. TOMASZEWSKI NOTARY PUBLIC-STATE OF NEW Y®RK No. 01T06156671 QUU11fled In Suffolk County shy Cbmrfilsslon Eaplies Mw 11 APPENDIX A ESTIMATED PROJECT COSTS FACILITY NAME: Town of Southold PROJECT NAME: Town of Southold-Town Pumpout Boat ESTIMATED PROJECT COSTS $98,500.00 APPROVED PROJECT COSTS $60,000.00 MAXIMUM SUM $609000.00 NOTE: "Estimated Project Costs"means the projected costs of the Applicant that are eligible for funding from the Corporation;that are allowable costs and that are reasonable,necessary and allocable by the Applicant to the project. "Approved Project Costs"means funding up to 75%of total Estimated Project Costs,not to exceed the Maximum Sum of$35,000 per pumpout project or $60,000 per pumpout boat project. 12 APPENDIX B CLEAN VESSEL ACT PROGRAM REIMBURSEMENT APPLICATION FORM New York State Environmental Facilities Corporation Attention: Angela Petrone 625 Broadway Albany,New York 12207 Re: Town of Southold-Town Pumpout Boat Ladies and Gentlemen: Pursuant to a Clean Vessel Act Funding Agreement (the "Agreement') dated as of 1st day of April 2018 between the New York State Environmental Facilities Corporation and the Town of Southold, we hereby request disbursement in the amount of$ for project costs. In connection with this requisition we hereby represent and certify the following: 1. This requisition is requisition number 2. The amount of this requisition, together with all prior requisitions, does not exceed the Approved Project Costs. 3. All amounts requisitioned hereunder are for eligible project costs which have not been included in any previous disbursement. 4. I hereby certify that expenses represented in this reimbursement request reflect actual costs for materials and services that were used for the sole purpose of completing the approved Clean Vessel project stated above and none of these claims were expended, in part or in full, for any other purpose. 5. I hereby acknowledge that amounts disbursed pursuant hereto are subject to all terms and conditions of the Agreement and that all representations, warranties and covenants are applicable with respect thereto. 6. Disbursement by the Corporation does not act as a waiver of any applicable term or condition of the Agreement or constitute a confi tion by the Corporation that any obligation thereunder has been satisfied. Date: 5<6 f Signature Name and Title of Authorized Representative for Applicant (Print or type clearly) 13 APPENDIX C STANDARD CLAUSES FOR THIRD-PARTY CONTRACTS FOR NEW YORK STATE The attached contract("the Contract"or"this Contract")has been determined to be a contract"for"the State of New York("the State").The Contract is between an entity acting for the State pursuant to an agreement with the State(the"State Contractor")and another entity(the"Third-Party Contractor",which refers to any party other than the State Contractor or the State, whether a contractor, licenser, licensee, lessor, lessee or any other party). In light of the foregoing,the parties to the Contract(whether it may be a license, lease,amendment or other agreement of any kind)agree to be bound by the following clauses which are hereby made a part of the Contract: 1. LIMITATION OF STATE'S LIABILITY.The State shall have no liability hereunder to the Third- Party Contractor.The State's liability, if any, is to the State Contractor pursuant to an agreement between the State and the State Contractor("the Agreement")which is separate and apart from this Contract, and, in accordance with the executory clause to the Agreement the State's liability is limited to the funds appropriated and available for such Agreement. 2.NON-ASSIGNMENT CLAUSE. Consistent with the provisions of Section 138 of the State Finance Law,this Contract may not be assigned by the Third-Party Contractor or its right,title or interest therein assigned,transferred, conveyed,sublet or otherwise disposed of without the previous consent, in writing, of the State Contractor and the State and any attempts to assign the Contract without the State's written consent are null and void.The Third-Party Contractor may,however, assign its right to receive payment without the State Contractor's and the State's prior written consent unless this Contract concerns Certificates of Participation pursuant to Article 5-A of the State Finance Law. 3. COMPTROLLER'S APPROVAL. In accordance with Section 112 of the State Finance Law, if this Contract exceeds$50,000(or, if this Contract is for the State University or City University of New York, Section 355 or Section 6218 of the Education Law and exceeds the minimum thresholds agreed to by the Office of the State Comptroller for certain S.U.N.Y. and C.U.N.Y. contracts), or if this is an amendment for any amount to a contract which, as so amended,exceeds said statutory amount, or if the Contract involves consideration other than the payment of money for the State and the consideration being given for the State has a value or reasonably estimated value that exceeds$10,000, it shall not be valid, effective or binding until it has been approved by the State Comptroller and filed in his office. Comptroller's approval of Contracts let for the Office of General Services is required when such Contracts exceed$85,000(State Finance Law Section 163.6.a).Failure to obtain the Comptroller's approval of this Contract,where required,will preclude any payment by the State to the State Contractor under the Agreement which would be used to fund this Contract. 4.WORKERS' COMPENSATION BENEFITS. Consistent with the provisions of Section 142 of the State Finance Law,this Contract shall be void and of no force and effect unless the Third-Party Contractor shall provide and maintain coverage during the life of this Contract for the benefit of such employees as are required to be covered by the provisions of the Workers'Compensation Law. 5. NON-DISCRIMINATION REQUIREMENTS.To the extent required by Article 15 of the Executive Law(also known as the Human Rights Law)and all other State and Federal statutory and constitutional non-discrimination provisions,the Third-Party Contractor will not discriminate against any employee or applicant for employment because of race, creed, color, sex, national origin,sexual orientation, age,disability, genetic predisposition or carrier status, or marital status.Furthermore, in accordance with Section 220-e of the Labor Law,if this is a contract for the construction, alteration or repair of any public building or public work or for the manufacture,sale or distribution of materials, equipment or supplies, and to the extent that this Contract shall be performed within the State of New York,the Third-Party Contractor agrees that neither it nor its subcontractors shall,by reason of race, creed,color, disability, sex, or national origin: (a)discriminate in hiring against any New York State 14 citizen who is qualified and available to perform the work; or(b)discriminate against or intimidate any employee hired for the performance of work under this Contract.If this is a building service contract as defined in Section 230 of the Labor Law,then, in accordance with Section 239 thereof,the Third-Party Contractor agrees that neither it nor its subcontractors shall by reason of race, creed, color,national origin, age,sex or disability: (a)discriminate in hiring against any New York State citizen who is qualified and available to perform the work; or(b) discriminate against or intimidate any employee hired for the performance of work under this Contract.The Third-Party Contractor is subject to fines of$50.00 per person per day for any violation of Section 220-e or Section 239 as well as possible termination of this Contract and forfeiture of all moneys due hereunder for a second or subsequent violation. _6.WAGE AND HOURS PROVISIONS_If this is a public work contract covered by Article 8_ of the Labor Law or a building service contract covered by Article 9 thereof, neither the Third-Party Contractor's employees nor the employees of its subcontractors may be required or permitted to work more than the number of hours or days stated in said statutes,except as otherwise provided in the Labor Law and as set forth in prevailing wage and supplement schedules issued by the State Labor Department. Furthermore,the Third-Party Contractor and its subcontractors must pay at least the prevailing wage rate and 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. Consistent with the provisions of Section 139-d of the State Finance Law,if this Contract was awarded based upon the submission of bids,the Third- Party Contractor warrants,under penalty of perjury,that its bid was arrived at independently and without collusion aimed at restricting competition.The Third-Party Contractor further warrants that, at the time the Third-Party Contractor submitted its bid,an authorized and responsible person executed and delivered to the State Contractor or the State a non-collusive bidding certification on the Third-Party Contractor's behalf. 8. INTERNATIONAL BOYCOTT PROHIBITION. Consistent with the provisions of Section 220-f of the Labor Law and Section 139-h of the State Finance Law,if this Contract exceeds$5,000,the Third- Party Contractor agrees, as a material condition of the Contract,that neither the Third-Party Contractor nor any substantially owned or affiliated person, firm,partnership or corporation has participated, is participating, or shall participate in an international boycott in violation of the federal Export Administration Act of 1979 (50 USC App. Sections 2401 et seq.)or regulations thereunder. If such Third- Party Contractor, or any of the aforesaid affiliates of Third-Party Contractor, is convicted or is otherwise found to have violated said laws or regulations upon the final determination of the United States Commerce Department or any other appropriate agency of the United States subsequent to the Contract's execution, such Contract,amendment or modification thereto shall be rendered forfeit and void.The Third-Party Contractor shall so notify the State Comptroller within five(5)business days of such conviction,determination or disposition of appeal(2NYCRR 105.4). 9.RECORDS.The Third-Party Contractor shall establish and maintain complete and accurate books, records,documents, accounts and other evidence directly pertinent to performance under this Contract (hereinafter,collectively, "the Records").The Records must be kept for the balance of the calendar year in which they were made and for six(6)additional years thereafter.The State Comptroller,the Attorney General and any other person or entity authorized to conduct an examination, as well as the agency or agencies involved in this Contract, shall have access to the Records during normal business hours at an office of the Third-Party Contractor within the State of New York or, if no such office is available,at a mutually agreeable and reasonable venue within the State,for the term specified above for the purposes of inspection, auditing and copying. The State shall take reasonable steps to protect from public disclosure any of the Records which are exempt from disclosure under Section 87 of the Public Officers Law(the "Statute")provided that: (i)the Third-Party Contractor shall timely inform an appropriate State official, in writing, that said records should not be disclosed; and(ii)said records shall be sufficiently identified;and 15 (iii)designation of said records as exempt under the Statute is reasonable.Nothing contained herein shall diminish,or in any way adversely affect,the State's right to discovery in any pending or future litigation. 10. EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITIES AND WOMEN. Consistent with the provisions of Section 312 of the Executive Law, if this Contract is: (i)a written agreement or purchase order instrument,providing for a total expenditure in excess of$25,000.00,whereby the State Contractor is committed to expend or does expend funds in return for labor,services, supplies, equipment, materials or any combination of the foregoing,to be performed for, or rendered or furnished to the State Contractor; or(ii)a written agreement in excess of$100,000.00 whereby the State Contractor is committed to expend or does expend funds for the acquisition,construction, demolition, replacement, major repair or renovation of real property and improvements thereon; or(iii)a written agreement in excess of$100,000.00 whereby the owner of a State assisted housing project is committed to expend or does expend funds for the acquisition, construction, demolition,replacement,major repair or renovation of real property and improvements thereon for such project,then: (a)The Third-Party Contractor will not discriminate against employees or applicants for employment because of race,creed,color,national origin,sex,age,disability or marital status,and will undertake or continue existing programs of affirmative action to ensure that minority group members and women are afforded equal employment opportunities without discrimination.Affirmative action shall mean recruitment, employment,job assignment,promotion,upgradings,demotion,transfer, layoff,or termina- tion and rates of pay or other forms of compensation; (b)at the request of the State,the Third-Party Contractor shall request each employment agency, labor union,or authorized representative of workers with which it has a collective bargaining or other agreement or understanding,to furnish a written statement that such employment agency, labor union or representative will not discriminate on the basis of race,creed, color,national origin, sex, age, disability or marital status and that such union or representative will affirmatively cooperate in the implementation of the Third-Party Contractor's obligations herein; and (c)the Third-Party Contractor shall state,in all solicitations or advertisements for employees,that, in the performance of the Contract, all qualified applicants will be afforded equal employment opportunities without discrimination because of race, creed,color,national origin,sex, age, disability or marital status. The Third-Party Contractor will include the provisions of"a", "b",and "c" above, in every subcontract over$25,000.00 for the construction,demolition,replacement,major repair,renovation, planning or design of real property and improvements thereon(the"Work") except where the Work is for the beneficial use of the Third-Party Contractor. Section 312 does not apply to: (i)work,goods or services unrelated to this Contract;or(ii) employment outside New York State; or(iii)banking services, insurance policies or the sale of securities.The State shall consider compliance by a Third-Party Contractor or subcontractor with the requirements of any federal law concerning equal employment opportunity which effectuates the purpose of this section.The State shall determine whether the imposition of the requirements of the provisions hereof duplicate or conflict with any such federal law and if such duplication or conflict exists,the State shall waive the applicability of Section 312 to the extent of such duplication or conflict. The Third-Party Contractor will comply with all duly promulgated and lawful rules and regulations of the Governor's Office of Minority and Women's Business Development pertaining hereto. 11. CONFLICTING TERMS. In the event of a conflict between the terms of the Contract(including any and all attachments thereto and amendments thereof) and the terms of this Appendix C,the terms of this Appendix C shall control. 12. GOVERNING LAW. This Contract shall be governed by the laws of the State of New York except where the Federal supremacy clause requires otherwise. 16 13. NO ARBITRATION.Disputes involving this Contract, including the breach or alleged breach thereof,may not be submitted to binding arbitration(except where statutorily authorized),but must, instead,be heard in a court of competent jurisdiction of the State of New York. 14. SERVICE OF PROCESS .In addition to the methods of service allowed by the State Civil Practice Law&Rules("CPLR"), in any litigation arising under or with respect to this Contract,the Third-Party Contractor hereby consents to service of process upon it by registered or certified mail, return receipt requested. Service hereunder shall be complete upon the Third-Party Contractor's actual receipt of process or upon the receipt,by the entity attempting service on the Third-Party Contractor, of the return thereof by the United States Postal Service as refused or undeliverable. The Third-Party Contractor must promptly notify the State Contractor, in writing,of each and every change of address to which service of process can be made. Service to the last known address of the Third-Party Contractor shall be sufficient. The Third-Party Contractor will have thirty(30)calendar days after service hereunder is complete in which to respond. 15.PROHIBITION ON PURCHASE OF TROPICAL HARDWOODS .The Third-Party Contractor certifies and warrants that all wood products to be used under this Contract award will be consistent with, but not limited to,the provisions of State Finance Law §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 Third-Party Contractor to establish to meet with the approval of the State. In addition,when any portion of this Contract involving the use of woods, whether supply or installation, is to be performed by any subcontractor,the prime Third-Party Contractor will indicate and certify in the submitted bid proposal that the subcontractor has been informed and is in compliance with the language regarding use of tropical hardwoods as detailed in State Finance Law §165.Any such use must meet with the approval of the State; otherwise,the bid may not be considered responsive.Under bidder certifications,proof of qualification for exemption will be the responsibility of the Third-Party Contractor to meet with the approval of the State. 16. MACBRIDE FAIR EMPLOYMENT PRINCIPLES. Consistent with the provisions of the MacBride Fair Employment Principles(Chapter 807 of the Laws of 1992),the Third-Party Contractor hereby stipulates that the Third-Party Contractor either(a)has no business operations in Northern Ireland, or(b)shall take lawful steps in good faith to conduct any business operations in Northern Ireland in accordance with the MacBride Fair Employment Principles(as described in Section 165 of the New York State Finance L'Lw),and shall permit independent monitoring of compliance with such principles. 17. OMNIBUS PROCUREMENT ACT OF 1992. It is the policy of New York State to maximize opportunities for the participation of New York State business enterprises, including minority and women-owned business enterprises as bidders,subcontractors and suppliers on its procurement Contracts. Information on the availability of New York State subcontractors and suppliers is available from: NYS Department of Economic Development Division for Small Business Albany,New York 12245 Telephone: 518-292-5100 Email: opa@esd.U.gov A directory of certified minority and women-owned business enterprises is available from: NYS Department of Economic Development Division of Minority and Women's Business Development 633 Third Avenue 17 New York,New York 10017 Telephone: 212-803-2414 Email: mwbecertification@esd.ny.gov hilps://ny.newnycontracts.com/FrontEnd/VendorSearchPublic.asp Consistent with the provisions of Omnibus Procurement Act of 1992,by signing this bid proposal or Contract,as applicable,Third-Party Contractors certify that whenever the total bid amount is greater than $1 million: (a)The Third-Party Contractor has made reasonable efforts to encourage the 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; (b)The Third-Party Contractor has acted consistent with the provisions of the Federal Equal Opportunity Act of 1972(P.L. 92-261),as amended; (c)The Third-Party Contractor agrees to make reasonable efforts to provide notification to New York State residents of employment opportunities on this project through listing any such positions with the Job Service Division of the New York State Department of Labor,or providing such notification in such manner as is consistent with existing collective bargaining contracts or agreements. The Third-Party Contractor agrees to document these efforts and to provide said documentation to the State upon request; and (d)The Third-Party Contractor acknowledges notice that the State may seek to obtain offset credits from foreign countries as a result of this Contract and agrees to cooperate with the State in these efforts. 18.RECIPROCITY AND SANCTIONS PROVISIONS.Bidders are hereby notified that if their principal place of business is located in a country,nation,province, state or political subdivision that penalizes New York State vendors, and if the goods or services they offer will be substantially produced or performed outside New York State,consistent with the provisions of the Omnibus Procurement Act 1994 and 2000 amendments (Chapter 684 and Chapter 383,respectively),they will be denied contracts which they would otherwise obtain.NOTE:As of May 15,2002,the list of discriminatory jurisdictions subject to this provision includes the states of South Carolina,Alaska, West Virginia,Wyoming, Louisiana and Hawaii. Contact NYS Department of Economic Development for a current list of jurisdictions subject to this provision. 19.PURCHASES OF APPAREL. Consistent with the provisions of State Finance Law§162(4-a),the State and the State Contractor shall not purchase any apparel from any vendor unable or unwilling to certify that: (i)such apparel was manufactured in compliance with all applicable labor and occupational safety laws,including,but not limited to, child labor laws,wage and hours laws and workplace safety laws, and(ii)vendor will supply,with its bid(or,if not a bid situation,prior to or at the time of signing a contract),if known,the names and addresses of each subcontractor and a list of all manufacturing plants to be utilized by the bidder. 18