2012-194
.
2012-194
Resolution Authorizing the Execution of an Inter-Governmental Agreement Between the
City of New York and the Town of Wappinger for the Construction of a Water Supply and
Distribution System
At a regular meeting of the Town Board of the Town of Wappinger, Dutchess County,
New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on June 25,
2012.
The meeting was called to order by Barbara Gutzler, Supervisor, and upon roll being
called, the following were present:
PRESENT: Supervisor
Councilmembers
Barbara Gutzler
William H. Beale
Ismay Czarniecki
Michael Kuzmicz
ABSENT:
Vincent F. Bettina
The following Resolution was introduced by Councilman Beale and seconded by
Councilwoman Czarniecki.
WHEREAS, by Resolution adopted on May 15, 2012, the Town Board ratified the
Supervisor's execution of an Agreement in Principle (AlP) which AlP outlined the terms and
conditions pursuant to which the Town of Wappinger (Town) through the United Wappinger
Water District (UWWD) will construct a 12 inch water main from a point of connection with the
UWWD water system to the Chelsea Shaft 6B Site owned by the City of New York (City) and
operated through its Department of Environmental Protection (DEP); and
WHEREAS, the AlP contemplated the City and the Town entering into a formal Inter-
Governmental Agreement (IGA) specifying in greater detail the terms, conditions and
obligations of the parties which respect to the construction of the 12 inch water main to the Shaft
6B Site with the expressed understanding that upon execution of said Agreement, the Agreement
would be submitted to the City Comptroller for registration as required by the City Charter; and
WHEREAS, the Supervisor, Attorney to the Town and Engineer to the Town have
negotiated the terms of an IGA, the terms of which are attached hereto, made a part hereof and
designated as Exhibit "1"; and
WHEREAS, the Town Board hereby agrees to be bound by the terms and conditions as
contained in the AIG attached as Exhibit "1" and authorizes the Town Supervisor to execute the
Agreement as evidence of the Town's obligations to be bound by the terms, conditions and
obligations stated therein.
NOW, THEREFORE, BE IT RESOLVED, as follows:
1. The recitations above set forth are incorporated in this Resolution as if fully set
forth and adopted herein.
2. The Town Board Members individually confirm that they have each read the IGA
attached to this Resolution as Exhibit "1", and understand the terms, conditions
and obligations of each of the parties to the IGA.
3. The Town Board hereby agrees, by and on behalf of the Town of Wappinger, that
the Town shall be bound by the terms, conditions and obligations contained in the
IGA in substantially the same form as contained in Exhibit "1" attached hereto.
4. The Town Board hereby authorizes Supervisor Barbara A. Gutzler to execute the
Agreement by and on behalf of the Town of Wappinger, evidencing the Town's
agreement to be bound by the terms, conditions and obligations contained therein.
5. The Town Board further authorizes the Supervisor, the Attorney to the Town and
the Engineer to the Town to negotiate and modify the wording of any of the
terms, conditions or obligations contained in the IGA, provided that such
modifications are consistent with the terms and conditions as stated in the AlP.
6. It is the intention of the Town Board that the IGA be executed as quickly as
possible and forwarded to the City for execution and registering with the City
Comptroller as quickly as possible.
The foregoing was put to a vote which resulted as follows:
BARBARA GUTZLER, SUPERVISOR
WILLIAM H. BEALE, COUNCILMAN
VINCENT F. BETTINA, COUNCILMAN
ISMA Y CZARNIECKI, COUNCIL WOMAN
MICHAEL KUZMICZ, COUNCILMAN
Voting:
Voting:
Voting:
Voting:
Voting:
AYE
AYE
ABSENT
AYE
AYE
Dated: Wappingers Falls, New York
6/25/2012
The Resolution is hereby duly declared adopted.
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1'O~,\O~ ~ --..LDRAFT 612~12012
MENT BETWEEN mE CITY OF NEW YORK AND mE
OWN OF WAPPINGER, NEW YORK FOR CONSTRUCTION OF
A WATER SUPPLY AND DISTRIBUTION SYSTEM
~'':'_::.:'. ',;,:,~..:.'-::-::-:.:::- --~--
--"'-- - _..
- ., - -., ~,.
JUN 25 2012
., "\ '1
TffiS AGREEMENT ("Agreement") is made and entered into as of the _ day of
June, 2012, by and between the
CITY OF NEW YORK ("City"),
a municipal corporation of the State of New York, acting by and through
NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION C'DEP"),
having its principal office at 59-17 Junction Boulevard, Flushing. New York 11373,
and
TOWN OF WAPPINGER ("Town"),
a municipal subdivision of the State of New York, acting by and through its Town Board,
and; the Town Board of the Town of Wappinger, acting for and on behalf of
the United Wappinger Water District, an administrative unit of the Town of Wappinger,
with its principal office at Town Hall, 20 Middlebush Road, Wappingers Falls, New York 12590,
(each a ''Party" and collectively the "Parties").
WHEREAS, DEP operates and maintains the New York City water supply system and is
responsible for providing drinking water to more than eight million residents in New York City, as
well as approximately one million upstate residents; and
WHEREAS, DEP has identified leaks in sections of the Delaware Aqueduct and has
committed capital funds to address such leaks to ensure the long-term sustainability of its abilitY to
supply water through the Delaware Aqueduct as part of a project known as "Water for the Future";
and
WHEREAS, in connection with DEP's Water for the Future project, DEP plans to construct
a new tunnel segment to bypass a leaking section of the existing Delaware Aqueduct tunnel; and
WHEREAS, as part of Water for the Future, DEP will construct two new shafts, one on each
side of the Hudson River to allow for tunnel construction and to provide future tunnel access, and
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Ii .'".1
one of these shafts, Shaft 6B, will be constructed on the eastern side of the Hudson River on City
property located in the Town (the "Site"); and
WHEREAS, the Town and the City have entered into a certain Agreement in Principle,
WHEREAS, consistent with the provisions of the Agreement in Principle, the City and the
dated May 15,2012, in order to provide for an adequate water supply at the Site during construction,
and, to the extent funds are available, provide a water supply distribution system to the residential
area surrounding the Site known as Chelsea Hamlet; and
Town have negotiated this Agreement to construct a water main to the Site, and, to the extent that
funds are available as hereinafter provided, to install a new water distribution system in the Chelsea
WHEREAS, in order to implement the construction of the 12 inch water main, the Town
Hamlet area; and
Board of the Town ofWaooinger (the "Town Board") agrees to take all required legal steps pursuant
to the provisions of Article 12-A of the NY Town Law to extend the boundary..QfUnited Wappinger
Water District (UWWD) to include the Site so as to provide the water services above described.
NOW, TIlEREFORE, in consideration of the premises and respective representations and
agreements hereinafter contained, ~e parties hereto ~ee as follows:
1. Recitations Incorporated.
The recitations above set forth are' hereby incorporated into this Agreement as if fully set forth
herein.
A. Registration Required.
This Agreement shall not take effect until it is registered by the Comptroller of the City of New
York. The City will take all steps reasonable and practicable to have this Agreement registered as
soon as possible after the Parties have executed same.
2
!f
2. Definitions of Terms
A. ~City: - The City of New York
B. ~Town: - The Town of Wappinger, County of Dutchess, a municipal corporation.
C. :DEP: - New York City Department ofEnvironmentaI Protection
D. :Site: - The real property owned by the City of New York located on River Road, in the
Town of Wappinger, County of Dutchess designated as tax parcel 135689-6056-01-288977
which contains an existing shaft for access to the Delaware Aqueduct and upon which Shaft
6B shall be constructed.
E. :UWWD: - United Wappinger Water District, an administrative unit of the Town of
Wappinger.
F. :Project Work:: - All work contemplated by this Agreement which shall include:
(I) Phase I Design Work more specifically set forth in Section 5 and shown in
Exhibit A.
(II) Phase I Construction Work more specifically set forth in Section 6.
(Ill) Phase II Design Work more specifically set forth in Section 7.
(IV) Phase II Construction Work more specificaIIy set forth in Section 8.
G. ::Phase I Water Main: - Ithe 12:!- inch diameter permanent water main, with all
necessary appurtenances thereto, in the Town of Wappinger between the nearest existing
piping connection point in the United Wappinger Water District (UWWD) water main
distribution system, located in the vicinity of State Highway Route 9 and Old Hopewell
Road, and the Site's property line on River Road.
H. :Phase II Water Main:-_- Ithe 8::' inch diameter permanent Water Main, with all
necessary appurtenances thereto, from the Site through the Phase II Service Area as shown
on Exhibit A hereto or as otherwise aooroved in writine: by DEP.
3
~Phase n Service Area: -tIhe area of the Chelsea Hamlet shown in ElfmbR BExhibit A
annexed hereto or as otherwise aonroved in writing bv DEP.
......{ FormRllld: Heading 2, Indent: Left: 0"
.1. .J,-"Necessarv Aonrovals" Reeeiflt Receiot of all nennits and anorovals from anv~-
aoplicable regulatory authOJities. agencies or governmental bodieswftiel:lthat are reauired by
law to oerform soecified work or engage in the snecified activity.
:f.:K. "Engineer to the Town" - Morris Associates Engineering Consultants. PLLC or other
engineering firm retained by the Town to comnlete the work herein.
3. Commencement of Proiect Work.
Milestones. The Town shall undertake and perform all of the tasks necessary to complete the Project
Work in accordance with the milestone dates set forth in Enhibit CExhibit B hereto. The fBileSliaaG
Bates set fertJ:\ ifl ~(llibit C skalJ be eeasielerea te be aa aF Qe9l:lt e1atas, tifBe Bm being eftRe esseaee
lifIle9s atflerwise Batea in this .^..,greefBeat aF iB E1Eftibit C.
4. Emiration and Extension of Al!J"eement.
Unless otherwise e>.1ended in writine: by both oarties. =P!his Agreement shall expire on the
completion of the Delaware Aqueduct Rondout- West Branch Tunnel (RWBTI Bypass Project
portion of Water for the Future OI'oe:ram. unless terminated sooner by either Party pursuant to this
Agreement, and the Parties have otherwise fulfilled all the obligations required of them by this
Agreement.
5. Phase I Desi2D Work
A. The ggesign W~ork described in this section (the "Phase I Desilm Work") shall be
completed by the Town, through its professional consultants and such other professionals
that shall be required.
B. Scope ofDesim Work.
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The scope of services for the Phase I Design Work shall comprise all engineering, surveying....t----
scientific, legal and other professional services that are necessary to complete the following tasks:
(1) Phase 1 Water Main Extension Desien
(a) Selection of a route and prepare a design of the Phase I Water Main in
accordance with DEP's riehts set forth in Section 50.
(b) Conduct all necessary field engineering and survey work (including the
use of aerial photography and GIS mapping as necessary);
(c) Perform soil borings and investigate the results;
(d) Prepare plans and specifications for the design and construction of the
~ Water Main (the "Phase I Plans and Snecifications"):
(i) The plaas asa Sj3eeifieatieoo fer tHe Phase I Water Mala Plans
and Snecifications shall be developed in accordance with the
Recommended Standards for Water Works [2007 Edition]: Policies for
the Review and Approval of Plans and Specifications for Public Water
Supplies, NYSDOH sanitary health code Subpart 5-1, and/or any other
applicable guidelines set forth by the New York State Department of
Health.
(Ii) The Phase I Water Main must be capable of providing DEP with a
potable supply of water at the Site from September 2013 to December
2022, or the completion of the Water for the Future Project, whichever
is later, in an amount ofat least 169,200 gallons per day at a maximum
flow rate of 200 gallons per minute.
(iii) The Phase I Water Main shall be in substantial accordance with
the maps 8IlQ aesiga sj!leeifieatieas on Exhibit A hereto.
(II) SEORA Review
(a) The Town Board of the Town of Wappinger intends to serve as lead
agency for the Project Work under the State Environmental Quality Review
5
Formatted: JustIfled, Une spacing: Double,
Tab sIIlps: -0.75", Left + -0.5", Left + 0",
Left + 0.5", Left + 1", Left + 1.31., Left +
2., Left + 2.5", Left + 3", Left + 3.5", Left +
4", Left + 4.5", Left + 5", Left + 5.5", LeIt +
6", LeIt + 6.5", Left
~SEQRA:2. The Town intends to conduct a coordinated review of the
project and shall circulate its intent to serve as lead agency to all involved
parties as defmed under the SEQRA Regulations, including DEP.
(b) The SEQRA environmental assessment shall encompass Phase I and
Phase II of the Project.
fer The Town shall conduct an environmental assessment of the Project
Work that will address all potential impacts under SEQRA and the SEQRA
regulations., inelliaiag el:1t Ret Iimitee te:
(6) I1TfrEl5WlietaFe HftJl66t
(e1 Clilawal R-esel:lfees
(f) TFaffie
(g) ViStlal aRe }leighberkeee CkaFooter
(8) SeeieeeElflelftie COBeitiefts
(i) CemmliRity FE*liHties ana 8er...iees
G) NamFa! Resel:lreetl afttl Water ResEil:lrees
(k) .^.ir Ql:Illlit).
too<LNeise
~ Upon request by DEP, the Town shall prepare and submit, for review
and comment by DEP within two weekll of the submission date, all requested
documentation detennined to be necessary by DEP in order to conduct a
legally complete environmental review of the Project following SEQRA
guidelines.
(III) Phase I Extension ofUWWD
(a) In order to provide water service to the Site the Town is required to
extend the boundaries of the UWWD to include the Site in accordance with
the provisions of Article 12 of the NY Town Law. The Town will undertake
anv and all actions and seek all Necessarv Aeuprovals BeeeSS&r'i for such
6
Pi'ellllnl a fR&J!l, Jllll:A &Be rllf!le'ft fertAe entBftsieR ef~e UWWD te tAe
~
,
J~
extension. includine:. but not limited to: felle'l.'bl.g is a list eftll5lEs that llnl
reqtHFeel te enteRs t:he UWWD:
(i) Accept Petition ofDEP to extend UWWD;
--Obtain Necessarv Aoorovalsaeeessllry &J!lllrtwals from the New
. York State Deoartment of Environmental Conservation ("-NYS DEC:)
or other ree:ulatorv authorities. 85 aeeessBn';
. (il) Pl'8pare I'Elseh:ltiel'ls alia fll:lslie HElllriRg Retiees;
(iii) PUBlisH l'Ietiee efthe I'tlBlie heariRg:
(LV) CaRaI:lO! a )'lulllie HellRag aefare the Ta'.ya Baara;
Mill.Lj~e1a!'t resalutiaR llffibel'iziag 61/teasial'l afU'.vW'D; _and
t>ri7ill.il.File order extending district with County Clerk.
(IV) Phase I Easements.
(a) Prior to the commencement of the Construction Work, and in a manner
that ensures the Town will remain in compliance with the milestones set forth
on Bltliillit CExhibit B. the Town is required to obtain easements from the
owners of certain lands along the route of the Water Line granting the Town
and its Contractors the necessary rights in and over all highways, roads,
streets and other public and private property, together with the rights of
ingress and egress, to construct, operate and maintain the Project
(b) As soon as Dossible:\:fter the rel:lte efthe Water LiRe is Bl'Ializee, the
Town shall prepare a list of property owners from which an easement is
required and submit such list to DEP.
( c) In the event the Town learns or has reason to believe it will not be able to
obtain any easement required to complete the Project anellor the Town
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~(ii) PreoarinlZ all necessary documentation and Commencing
emeffi and prosecutingtert ef any actions to obtain necessary
easements, rights of way, or fee interests necessary for construction of
the Phase I Water Main under the EHliRent Demain PreeeediBg5
bewEDPL including the filing of a taking map with the Dutchess
County Clerk;
~Awarding the cost of such aooraised easement to the orooertv
~ef damages fer talaRg ef eaBemElRts.
intends to initiate condemnation proceedings, the Town must immediately
notify DEP.
(V)Phase I Eminent Domain Proceedin2S (if necessary)
(a) Where the Town does not have the right of way for construction of the
Phase I Water Main and the owner of the real property will not consent to the
Town's use of the property, Eminent Domain proceedings will be necessary
. to obtain a right of way or other interest to allow for construction. The Town
will undertake any and all actions and seek all aoorovals necessary under the
!. The feJlewiflg taBl<6 weald be reElliiMd ta 1:IRdeFta:lEe ]9l'aseeaiflg5 1H'Ider tfte
Eminent Domain Proceedings Law includin2. but not limited to:
(i) Prel3BFe Maps and Jega! E1aseriptieas far afl)'Reaessarj' ell5emeats;
(ii) Pi'eflaFatiaa af aft)' legal flapefB fleeeSB61j' far saMHleaeiag aetiaas
l:Iftaer the Emiasftt Dema:ia PFeseeaiags La'/'" iftsltldirtgtfis prepllfatieR
Elf air)' ta!aBg Maps ana E1FaftiRg ef all assess&ry pet:itiens;
~Obtain surveys and app'raisals for all properties subject to the
EDPL proceedings;
(VI) Phase I Permits.
(a) The Town shall obtain all Necessary Approvals and make all necessary
notifications or modifications with resoect to its existinlZ oermits for the
Project in a timely manner so as to prevent delays in meeting any and all of
8
the deadlines set forth in this Agreement,.. I.t the prese&t rime the fellewiag
peFfBits are reEjl:liFElti BY this .^...gFeemeBt fsr PhB:lS I:
(i) Nyg DBC Water 81:1~ly PSFffiit
Oi) DSflar'..Hleflt efHeakli PllFffiit trell'l Dat:eaess CeliRt:y er }NS DOH
(iii~IYS DOT Highway VI ark Permit
(iv)Dlitahess CatlRt)' DPW WarlcPeFfl'lit
(v) Te',ffl af Wap19iager Higlw/ay Wark Permi1S
(vi)l>NS DeJlartl:..8Rt af State Cell5tel ZeRe Celftj3liaflas
(vii) CelHr&l Haesa!! LieeBss/Bll5sme&t fer ROW CF9ssiBg
(b) The Town shall obtain any additional permits that may be required.
(c) Upon request, the Town shall provide DEP with a copy of any permit
application.
(d) In the event that the Town learns it may not obtain a Necessary Approval
prior to a related milestone date, the Town shall notify DEP immediately, in
writing, in accordance with the provisions of Section 17 herein.
(VII) Phase I 'Construction Plannine: & Contract Preparation
(a) As part of the Phase I Design Work, the Town shall complete all work
necessary to draft and bid and award ~ the construction contract and prepare
for the management of the Phase I Construction Work (the "Phase I
Construction Contract:), including, without limitation:
(i) providing cost estimates of the Construction Work (as
hereinafter defmed),
(ii) producing the contract, specifications and bid documents,
(iii) developing testing protocols, and
(iv) prepareing construction management plans~
9
(b) The Phase I Construction Contract shall contain all clauses iaahHies ia
reauired Dursuant to Section 2o.:t& of this Ae:reement and otherwise be
consistent with all of the terms and conditions set forth in this Agreement.
(c) The Town may split the Phase I Construction Work into sections or
phases and advertise for and award more than one contract for the
Construction Work.
(d) The Town reserves the right to use its own employees to perform portions
of the Construction Work that it deems fit.
C. DEP Phase I Desie:n Review & Contract Review
(I) Prior to the completion of the Phase I Design Work, DEP shall review and
approve the drawings and specifications Cincludine selection of the route for the
Phase I Water Main) that will be includedlet for bidding in accordance with the
provisions of this section.
(II) In accordance with the time frames set forth in BKlUeit CExhibit B, the Town
shall submit the Phase I Plans and Specifications far tl!.e Water Ma:ia to DEP for
review when they are ninety percent (90%) complete and DEP shall review and
comment upon the Plans and Specifications within two weeks. To the maximum
extent possible, the Town shall incorporate any and all revisions necessitated by
DEP's review and comments in its final Plans and Specifications. orovided that such
Plans and Soecifications ensure that the Town will meet its oblie:ations to orovide
water as described herein and on Exhibit C hereto.
(III) A copy of the Contract, Drawings, Specifications and Bidding Documents for
the Construction Work shall be submitted to DEP for review at least fourteen (14)
business days prior to award thereof, or if procurement is by a competitive sealed
bid, at least fourteen (14) business days prior to release of the contract bid
solicitation, and DEPshall be permitted to provide comments thereto at least three
business days prior to the contract bid solicitation date. To the maximum extent
Dossible. the Town shall incomorate anv and all revisions necessitated bv DEP's
10
review and comments. WaaaiReer will atteffiDt tEl iReeI'B9fllte DEP's eemHleai9 t9
el,teRt llflle-aelNlle....
(IV) A complete original set of the final approved and stamped plans must be
provided to DEP prior to the commencement of Construction Work.
D. Advertisine: for Bids and Letting of Contracts for Phase I
(1) The Town shall, upon requ~st by the City, provide the City with a copy of each
contract or subcontract entered into by it with respect to any aspect of the Work.
(II) Advertising for bids for the Construction Work shall take place on or before the
date set forth in ExffiBit CExhibit B-:
(III) The Town reserves the right to reject all bids and to re-advertise for bids.
(IV) After opening the bids at the time and place specified in the Notice to Bidders,
the Town shall R!lvie-'l.' tfle !:lias ana review the bids for completeness and
responsiveness to the bid solicitation documents and determine the lowest
responsible bidder.
(V)Review of Bidders bv DEP
(a) Promptly after the opening. of the sealed bids, the Town shall provide the
DEP with a list of the bidders' names and the bid amounts.
(b) Within three (3) business days of the Town providing such notice of
bidders, the DEP shall have the opportunity to provide notice to the Town
that based on DEP's opinion the bidder does not have a satisfactory record of
business integrity or would otherwise be found to be a non-responsible bidder
by DEP or that DEP has reason to believe such contractor will be unable to
perform the Work according to the Phase I Plans and Specifications.
(c) If DEP does not provide an objection to the Town within three (3)
business days, the-DEP shall waive its opportunity to ~lwiae aeaee.
11
(d) The Town reserves the right to determine the lowest responsible bidder in
accordance with Article 5-A of the General Municipal Law, notwithstanding
any information supplied by DEP.
6. Phase I Construction Work.
A. The commencement of Phase I Construction Work (referred to in this section as ''the
Construction Work") shall not occur prior to:
(I) Completion of the requirements set forth under the State Bw:ireameatal QtlaJity
Re>:iew :\at ("SEQRA.!!) for the Project;
(II) Receipt of all ~ftecessary permits !lftS Aapprovals tfsm 8ft)' a~]3li6a'ele
reglilat6FY &tItI=I:arities, ageaeies af ge'/i!fftlBe8~ "'eelies that must be obtained in
order to commence such work 1.lftaer 8p]3liea'ele Iw.\' fthe "}Jeeessal')' }.Pf'!F6ya!S");
and
(III) The adoption of an order of the Town Board sf the Te"':8 sf Wapf'!iFlger
extending the jurisdictional boundaries of the UWWD to include the Site.
B. A ward of Contract
(I) In accordance with the time frames set forth in Bnmbit CExhibit B hereto, the
Town shall award a contract that mav orovide for multiole suber IftllJ.ti]3le contracts
for the Phase I Construction Contract covering all labor, materials and work
necessary to construct the Phase I Water Main, or a portion thereof.
(II) The Town shall immediately notifY DEP of any contract award.
(III) The Construction Work shall be prosecuted diligently and performed in an
orderly, expeditious and professional manner and in strict conformance with the
milestone set forth on Exhibit B (ElEhieit B) and final Phase I P~lans and
s,fu>ecifications (hereinafter referred to in this section as the "Final Plans and
Soecifications") prepared E1w.FIg tae Phase I Design Wel'k,
(IV) DEP shall have the right (and the Town shaH provide DEP with access to the
work site as needed) to inspect the Construction Work from time to time to determine
12
i_
whether the Construction Work is being prosecuted diligently and in strict
conformance with the Final Plans and Specifications and in an orderly, expeditious
and professional manner.
(V) DEP must be provided written notice of any and all changes orders for the
Construction Contract prior to execution thereof, unless necessitated by an
emergency condition.
(VI) ProlZl'ess Reoorts. The Town shall submit written monthly progress reports to
DEP, on the first day of each month after the commencement of construction, on the
progress of the Phase I Construction Work, which reports shall include:
(a) a report on work completed in the past month,
(b) any Construction Work that may not or will not be completed in
accordance with the Final Plans and Specifications, and
(c) any Construction Work that the Town anticipates may be delayed or not
completed in accordance with the milestones established in Elthibit CExhilili
a hereto for any reason.
7. Phase n Desi2D Work
A After the award of the Phase I Construction Work, the Town will commence the detailed
design of Phase II ~ill the 1113JlI'El1Limate areas shown in Exhibit :SA unless otherwise
approved bv DEP. in accordance with the dates set forth in BuhieK CExhibit B .
B. The Phase II Design Work and the Phase II Service Area may be further modified by
subsequent agreement of the-parties based on the funding available for Phase II.
C. Scone of Phase II Design Work.
.....{ Formatl8d: Heading 2, Indent Left: 0.5"
The scope of services for the Phase II Design Work shall comprise all engineering,-
surveying, scientific, legal and other professional services that are necessary to complete- the
Phase IT Desitm Work and the extension ofUWWD as necessary. tAe fallewiag tasks:
(I) Phase II Extension ofUWWD
13
(a) In order to provide water service from the UWWD;-4fte~ Town will
undertake any and all actions necessary and obtain all approvals reauiredis
refltiirea.to extend the boundaries of the UWWD to include the Phase IT Area
in accordance with the provisions of Article 12-A of the NY Town Law.
including, but not limited to:. The feIl9'I:iag is a list ef1eoks that al'e reEtuil'eG
:9 ellteRa the uwvm ifl PllEl$e II:
ill- -Obtaining approval from.t+he Town Board.
ei) RHlst aael'1t a Fes9hitiea sllBjeet te l'1effflissive refeFeRGl:Im,
aI:itI:leriisiRg the Eagiaeer t9 1lte Te'.VB. te Jlfel'1are a Mal'1 Phii'! aaa
Repert far 1lte Phase II ela:eHsieft;
eii) P~aFe a map, fllan aRa FeJl9rt fer tfte elKGmlieR sftae UWWD te
Phase II;
ObtaiB Reeessary' ap"'fe\'als frem eObtainine any necessary
approvals from NYS DEC and the
EHB-t
iliLOhtafR HeBesser)' Eljlflrevals frefB 1lte _Office of the NYS
Comptroller~
(~iii) eComolving with anv notice and hearing obligations: and7
ev) Prepal'e Peseimiens ana pI:ISliB aeariag Betiees;
(vi) PIl9lisfi setice ef the "'IlBlie heariag BREI Ratify all pl'epel'ty
e'NBers withia the Phase H :\I'ea;
('Iii) CeBEhlet a P\:H:JIiB heariag Befere tBe Tevlft Be~
(Yiii) J.eel'lt Fesell:ltiea aatkeriring elEtensieR efUWWD, 5l:Iejeette
pemHssb.e l'Bflll..eaEl1:lfB:; aaa
(il;1(iv) FUsing order extending district with County Clerk if no
referendum or successful referendum.
(II) Phase II Water Main Extension Design
14
(a) Selectfea.-ef a route and prepare a design of the Phase II Water Main in
accordance with DEF's rieht of aD Dr oval set forth in Section 7D.
(b) Conduct all necessary field engineering and survey work (including the
use of aerial photography and GIS mapping as necessary);
(c) Perform soil borings and investigate the results;
(d) Prepare plans and specifications for the design and construction of the
Phase II Water Main;
(i) The plans and specifications for the Phase II Water Main shall be
developed in accordance with the Recommended Standards for Water
Works [2007 Edition]: Policies for the Review and Approval of Plans
and Specifications for Public Water Supplies, NYSDOH sanitary
health code Subpart 5-1, and/or any other applicable guidelines set
forth by the New York State Department of Health.
(Ill) Phase II Easements.
(a) Prior to the commencement of the Phase II Construction Work, and in a
manner that ensures the Town will remain in compliance with the milestones
set forth on ~i:8it CExhibit B, the Town is required to obtain easements
from the owners of certain lands along the route of the Phase II Water Line
granting the Town and its G2ontractors the necessary rights in and over all
highways, roads, streets and other public and private property, together with
the rights of ingress and egress, to construct, operate and maintain the
Project
(b) In the event the Town learns or has reason to believe it will not be able to
obtain any easement required to complete the Project and/or the Town
intends to initiate condemnation proceedings, the Town must immediately
notify DEP.
(IV) Phase II Eminent Domain ProceedinlZS (if necessary)
15
~Where the Town does not have the right of way for construction of the
Phase II Water Main and the owner of the real property wiJI not consent to
the Town's use of the property, Eminent Domain proceedings will be
necessary to obtain a right of way or other interest to allow for construction
and will be conducted in the same manner as for Phase I as desctibed ift
hereinBaJ..e:&1:lh!ll~ jt, 'l, Z a88'\'e. The fallawiBg taslEs wal:lld Be reliJ~ea te
1Iaael'take }!ll'Eleeeaillgs !:Illser the BRI iaeat DSRlaia ~aeeeeiaga La':l
(e) PFe)3are maps 61'1.S legal seseri)3Haas far all)' aeeeasB.!]' easemeRts;
(e) PFe)3Bfaaea af aay legal )3aj:lers aeeesstH)' fer ealRRleBeiag aeti eas l:lflser
Ule BRlmeRt DaHiaia Pi'aeeecliagB La'N iRelacliag tae rwe)3&raaaa af Bn)'
ftllEiRg Rlaps aRe ef'84:liag af alllleeessary }!letiti9fls;
(e) OBtaia appraisals fer ell )3repemes s1iBjeet te the BDPL )3reeeeaiRgs;
(e) CelftffleBeell'1eat ana )3raseelltieB af aay aetieRs te eBmm Reeessary
easeml!Bts, tigi:lts erway, er fee iRterests aeeesslH)' fer eea!RmeaaB efthe
Water MaiR tlRaer the BmiReftt Demam PreeeeSiRgS La''': iRelaaiRg the Blillg
af a taldag map ',VHft the DlItehess CowRy ClerIc;
ft1ill-:\. waraiRg af 8&ll'1ageS fer te1W1g sf 91159meats.
(V)Phase II Permits.
~The Town shall obtain all Necessary Approvals and make all necessary
notifications or modifications with resoect to its existing oermits for the
Project in a timely manner so as to prevent delays in meeting any and all of
the deadlines set forth in this Agreement The fellawiag permits are reEIBiFes
fer Phase II aftllis Agpe9ffleRt:
('6) 'NYS DEC Water 811"ply Permit
( e) De)3at1Hl eat efHealth Pefll'1it fraffi DlReftess CelWy ef NYS DOn
(e) Dtltehess Cel:lRty DPW WePl, P9FftlK
(e) Ta'....R afWappiBger Higfi'/.~' Werk PernlHs
16
~NYS DepaFtmeat af State CallStal Zalle CaBlplilmse.
~The Town shall obtain any additional permits that may be required.
f!TJ(~Upon request, the Town shall provide DEP with a copy of any permit
application.
~In the event that the Town learns it may not obtain a Necessary
Approval prior to a milestone date, the Town shall notify DEP immediately,
in writing, in accordance with the provisions of Section 17 herein.
(VI) Phase II Construction Plannine: & Contract Preoaration
(a) As part of the Phase II Design Work, the Town shall complete all work
necessary to draft and bid and award leHhe construction contract and prepare
for the management of the Phase II Construction Contract (referred to in this
section as ''the Construction Contract"), including, without limitation:
(i) providing cost estimates of the Construction Work (as hereinafter
defined),
(ii) producing the contract, specifications and bid documents,
(Hi) developing testing protocols, and
(iv) ~preoarjne: construction management plans
(b) The Construction Contract shall contain all clauses illGIl;lEled ill reauired
jaSection~.J..8 of this Ae:reement and otherwise be consistent with all of
the terms and conditions set forth in this Agreement
(c) The Town may split the Phase II Construction Work into sections or
phases and allow for multi ole subcontractors advertise far and aVlafd ffiare
lhlU'l aRe e9Rtfaet for the Phase II Construction Work.
(d) The Town reserves the right to use its own employees to perform portions
of the Phase II Construction Work that it deems fit
17
D. DEP Desim Review & Contract Review
.......... { FOl'lllllttlld: Keep with next
(I) Prior to the completion of the Phase II Design Work, DEP shall review and
approve the drawings and specifications that will be let for bidding in accordance
with the provisions of this section.
(II) The Town shall submit the Plans and Specifications for the Phase II Water
Main (refelTed to in this section as "the Plans and Soecifications") to DEP for review
when they are ninety percent (90%) complete and DEP shall review and comment
upon the Plans and Specifications within two weeks. To the maximum extent
possible, the Town shall incorporate any and all revisions necessitated by DEP's
review and comments in its final Plans and Specifications.
(III) A copy of the Construction Contract, Ggrawings, Plans and Specifications and
QBidding gGocuments for the Phase II Construction Work shall be submitted to DEP
for review at least thirty (30) Bl:IsiaesG days prior to award thereot: or if procurement
is by a competitive sealed bid, at least thirty (30) Ell:lsiaess days prior to release of the
contract bid solicitation, and DEP shall be permitted to provide comments thereto at
least five (5) business days prior to the contract bid solicitation date, To the
maximum extent Dossible. the Town shall incoroorate anv and all revisions
necessitated bv DEP's review and comments.
(IV) A complete original set of the final approved and stamped plans must be
provided to DEP prior to the commencement of Phase II Construction Work.
E. Advertisin!!: for Bids and Lenin!!: of Contracts for Phase II
(I) Th T hall b h C'ty 'd th C'ty 'th f h.........-iFormatted:TilbslDps: 1.38", List tab + Not
e own s , upon request y tel ,provl eel WI a copy 0 eac llt 1,25"
contract or subcontract entered into by it with respect to any aspect of the Work.
(II) Advertising for bids for the Construction Work shall take place on or before the
date set forth in ElUiiait CExhibit B,
(III) The Town reserves the right to reject all bids and to re-advertise for bids.
(IV) After opening the bids at the time and place specified in the Notice to Bidders,
the Town shall review the bids and review the bids for completeness and
18
responsiveness to the bid solicitation documents and determine the lowest
responsible bidder.
(V) Review of Bidders bv DEP
(a) Promptly after the opening of the sealed bids, the Town shall provide the
DEP with a list of the bidders' names and the bid amounts.
(b) Within three (3) business days of the Town providing such notice of
bidders, the DEP shall have the opportunity to provide notice to the Town
that based on DEP's opinion the bidder does not have a satisfactory record of
business integrity or would otherwise be found to be a non-responsible bidder
by DEP or that DEP has reason to believe such contractor will be unable to
perform the Work according to the Plans and Specifications.
(c) If DEP does not provide an objection to the Town within three (3)
business days, the DEP shall waive its opportunity to provide notice.
(d) The Town reserves the right to determine the lowest responsible bidder in
accordance with Article 5-A of the General Municipal Law, notwithstanding
any information supplied by DEP.
8. Phase n Construction Work.
A. The commencement of Phase IT Construction Work shall not occur prior to:
. . fi........ d R S . ml r"" "--'1 Formatted: Tab stops: 1.38" List lZIb + Not
(I) CompletIOn of the requIrements set U1Ll1un crt e tateBfwlraAR\BR Q\la Ity at 1.25" '
Review 1\et ("SEQRAl11-.for the Project;
(IT) Receipt of all Necessary aeee(isar)' )38l'fRia MS aAPprovals [ram an)' appliaaele
regulatet")' al:Itftarities, age8sies ar gevemme81alllaeies that must be obtained in
order to commence such work \:laser a~[3lieaele la...: (~e "Neeessary .".')9[3re'ials");
and
(Ill) :J:ke-a.Adoption of an order of the Town Board sf the Taws sf Wa13[3iager
extending the jurisdictional boundaries of the UWWD to include the Phase IT Service
Area.
19
B. Award of Phase II Construction Contract.
(I) In accordance with the time frames set forth in BJdlibit CExhibit B hereto, the
Town shall award a contract or multiple contracts for the Phase II Construction
Contract covering all labor, materials and work necessary to construct the Phase II
Water Main, or a portion thereof.
(II) The Town shall immediately notify DEP of any contract award.
(III) The Construction Work shall be prosecuted diligently and performed in an
orderly, expeditious and professional manner and in strict conformance with the final
plans and specifications prepared during the Phase II Design W ork (referred to in this
section as the "Final Plans and Soecifications").
(IV) DEP shall have the right (and the Town shall provide DEP with access to the
work site as needed) to inspect the Construction Work from time to time to determine
whether the Construction Work is being prosecuted diligently and in strict
conformance with the Final Plans and Specifications and in an orderly, expeditious
and professional manner.
(V) DEP must be provided written notice of any and all changes orders for the
Construction Contract prior to execution thereof, unless necessitated by an
emergency condition.
(VI) Progress Reoorts. The Town shall submit written monthly progress reports to
DEP, on the first day of each month after the commencement of construction, on the
progress of the Phase II Construction Work, which reports shall include:
(a) a report on work completed in the past month,
(b) any Construction Work that may not or will not be completed in
accordance with the Final Plans and Specifications, and
( c) any Construction Work that the Town anticipates may be delayed or not
completed in accordance with the milestones established in BJiliil:lit CExhibit
a hereto for any reason.
20
9.~
A. Eligible Costs. -Subject to the restrictions set forth in this Section 28 and Section 10, the
City agrees to pay for &Y-costs ("Eeligible ~osts~ associated with the design,
administration, construction, inspection and implementation of the Project Work in
accordance with the telms and conditions El5 set fet1fl in this Agreement It is contemplated
that the Phase I and Phase II Design Work will require professional engineering and
surveying services, as well as legal services required for contract review and administration
and the formal extension of the district boundaries of the UWWD in order to implement the
provisions of this Agreement The Eligible Costs shall include, InK Ret Be limited te:
(I) the actual cost to the Town m.perform the Phase I and Phase II Design Work;
(II) the actual cost of the Phase I and Phase II Construction Work performed by the
contractor(s) in accordance with competitively bid contracWYe work pursuant to
General Municipal Law ~ 103, including the cost of premiums for all insurance
and/or PRerformance and Qllayment llBonds required by this Agreement;
(III) the actual cost of any pre-aooroved interim financing that the Town may incur
for funding Eligible Costs between the execution of said Agreement and the first
payment by the City; aM
.aY.Lreasonable attorney's fees incurred by the Town for all legal work in
connection with the implementation of this Agreement: and
(+>A(Vl Other costs directly related to the Proiect Work that may be aooroved
bv DEP in writing in advance of the Town exoendimz such amounts. .
B. Total Eligible Costs. Notwithstanding anything to the contrary herein, the aggregate total
of all Eligible Costs payable by the City hereunder shall not exceed $11,000,000 ("Total
Eligible Cost").
(a) The Town hereby acknowledges that the City has committed to provide
$100,000 towards the Total Eligible Costs ift 1:fle fal'ffl ef aevanee flllym6ats
from the NYC Water Board for services rendered under Town contracts for
initial items of Project Work. which payment mav be made prior to this
21
Asrreement beine: registered with the Comotroller as set ferth iR the
AgreeR'leRt in Prineiple.
(b) The Town will be responsible for any and all costs above the Total
Eligible Costs ($11,000,000).
C. Allocation of Total Eligible Costs. The estimated allocation of the Total Eligible Costs is
that Phase I will cost $9,000,000 and Phase II will cost $2,000,000. However, in the event of
any overruns in connection with completing Phase I, the $2,000,000 allocated for Phase II
shall be applied to Phase I to account for any deficiency in the Phase I budget. In the event
that Phase I is completed for less than the allocated $9,000,000 budget, such additional
unused funds may be allocated towards Phase II. In the event that the Total Eligible Costs
for Phase I will exnected to be e:reater than $9.000.000. either (1) the scone sf P~la~e 11 or
desie:n of Phase II shall be modified. as aonroved in writine: bv DEP. to account for the
reduced funds that will be available for Phase II or (2) the Town will be Dav for all costs
above $11.000.000. In the event that Phase I and II cost Jess than the allocated $11.000.000.
the Town may submit a reauest to DEP to use any remaininl! funds towards additional water
main work in the vicinity oHhe Shaft e eraieet sSite. rfDEr apnl'oves such the-reauest in
writine:. then sllch request must be comoleted Driol' to December 3Uke eaEt af 20 14.
D. Administration of Funds bv the ToWn. The Town shall manage, coordinate and
administer the Project costs and payments required in connection with the Project in
accordance with the terms herein, including compliance with the deadlines set forth in
E?d'Iieit CExhibit B hereto. The Town shall deposit all funds received pursuant to this
Agreement in an account not to be co-mingled with other sources and shall use such funds
solely to fulfill its obligations hereunder. In no event shall any funds distributed by DEP to
the Town under this Agreement be used for any expense other than Eligible Costs.
22
10. Payment.
A. Release of Funds.
(I) Simultaneously with the execution of this Agreement, the Town has submitted
an initial budget estimate in the amount of$l,ooO,OOO for the cost of Phase I Design
Work.
. (II) After the registration of this Agreement with the City Comptroller, the City
shall pay the Town $900.000 for geligible .Qeosts included in the budget estimate as
soon as possible. but in no event later than ninety (90) davs after registration of this
Agreement.
(III) -The parties acknowledge and reaffirm that the Town will be reimbursed for up
to $100,000 in Eligible Co~s from the New York City Water Board pursuant to the
Agreement in Principle and shall be paid in accordance with the terms of a letter
from the New York City Water Board dated May --dL.2012. which amount will
be deducted from the $] .000.000 request l'eferel1ced in 10. A. (I),. Said SlUR is
iBehuied iR #Ie Te'....B.s iRitisl Beaget reEJl:Ie5t aUI.g99.Qgg.
(IV) Upon completion of the Phase I Design Work. the Town shall submit an
invoice to DEP representing:
(a) the estimated cost of the Phase I Construction Work, as determined ~
aRe eel"tifieEl ta BY thennd certified bv theF.lJ.8!!1.~.I:~~.~~I~Y!'!!d?!~~......_._ ....-{ Formatted: Not Highlight
(b) an amount no greater than 5% of such estimated Phase I -Construction
Costs. which combined amounts are estimated to be approximately
$8.000.000 or less. and which amount the City shall pay to the Town within
ninety (90) days of such invoice. It is expressly understood that under no
circumstances may 96ft-the Town award any bids for construction until such
time as the funds for the award of construction contracts are deposited with
the Town.
(V) Within thirty days (30) days of the award of the Phase I Construction Contract,
the Town shall submit an invoice to DEP representing the estimated amount of the
23
g&ligible &kosts of the Phase II Design Work. Within ninety (90) days of submission
of the invoice, the City shall pay to the Town the amount set forth in said invoice.
(VI) Upon completion of the Phase II Design Work, the Town shall submit an
invoice to DEP representing:
(a) the estimated cost of the Phase II Construction Work (mil1us any funds
that may be remainine from the Phase I Construction- Work~)' as
determined '111 BRei eeFtitleel :eand certified by the-Engineer to the Town, plus
(b) an amount no greater than 5% of such estimated Phase II Construction
Costs, which amounts are estimated to be approximately ~Q5Go~dlJlt and _._..;~in.lt:[dij;fN~:iO\1:~:':rh~!lI!a'~Wo.I!(
....~._.. .. ._m_-'~jfllio'paijj:ror:e;.,.lt8i'l;.>/::-,:;,:>.;:.:<';<';-':"..
which amount the City- shall pay to the Town within ninety- (90) days of ..
such invoice. It is expressly understood that under no circumstances can the
Town award any bids for construction until such time as the funds for the
award of construction contracts are deposited with the Town.
B. Pavments bv Town
(I) All claims for payments from the Town by consultants and contractors for
Eligible Costs shall be made by itemized voucher in accordance with the provisions
of NY Town Law ~ 118. Such vouchers shall include al~ such documentation
demonstrating that the work has actually been performed, and that it is an Eligible
Cost as defined in this Agreement. Where appropriate, the documentation supporting
the voucher may include items such as purchase orders, canceled checks, certified
payroll records and machinery use records.
(II) Promptly after the Town receives a voucher for payment, the Town shall submit
the voucher with supporting documentation to the DEP for review and approval,
within 7 days of receipt of said voucher.
(III) After review and approval by the DEP, the Town Board shall audit the
voucher and make payment for approved vouchers in accordance with the provisions
of NY Town Law ~~ 118 and 119.
C. Reconciliation.
24
(I) Prior to requesting funding for Phase I Construction Work, Phase II Design Work
or Phase II Construction Work and upon completion of the Project, the Town shaH
submit audited & approved vouchers to the DEP detailing the expenses actuaHy
incurred by the Town for approval and reconciliation.
(II) Where~ reconciliation indicates that there is an overpayment or
underpayment for prior expenses, the next payment due from the City shaH be
adjusted accordingly.
D. Unsoent Funds. Upon completion of the Project or earlier termination of this Agreement
pursuant to Section 34, any funds not actually spent on Eligible Costs as of the date of such
completion or termination must be reimbursed to the City or aoolied towards an additional
project to provide water in the vicinity of the Site ifaporoved bv DEP in writing orior to
December 31. 2014:
E. Right to Examine the Books. AH receipts and disbursements pursuant to this Agreement
are subject to audit by the City or State and the Town agrees to cooperate with any audit of
the agreement undertaken by the City or State. The Town shall ensure that aH funds
advanced to it shall be used exclusively for Eligible Costs incurred in connection with
projects and activities set forth herein.
F. Excess Costs. Any costs or expenses borne by the Town which exceed the Total Eligible
Costs, as aHocated pursuant to this Agreement, shaH be borne by the Town.
G. Delavs or Incomplete Work. If the Town is in material breach of the terms of this
Agreement, including the schedule set forth on Bni!i1:lit CExhibit B. and such breach is not
cured within the time frames set forth in Section 35, in addition to any other rights or
remedies available to it at law or in equity, the City shaH be entitled to withhold any future
payment due to the Town in an amount that represents the cost to cure the breach and
covering any reasonable damages resulting directly from such breach.
H. Payment Disoute. In the event of a dispute as to the value of the work rendered, the
Town's payment requests, or t!:le TewB' 5 DEP's reconciliation, it is understood and agreed
25
that such dispute shall be brought to the Commissioner ofDEP (the "Commissioner") and
the Commissioner shaIl determine the value of such work or the eaeEjliaeyaccl.lracv oftke
~DEP's reconciliation. The Commissioner shall examine the material submitted by
each party and may, in his or her discretion, convene an informal conference with the
relevant parties and any other designee of the Commissioner to resolve the issue by mutual
consent prior to reaching a determination. The Commissioner may seek such technical or
other expertise as he or she shaIl deem appropriate, including the use of neutral mediators,
and require any such additional material from either or both parties as he or she deems fit.1lf
m~:ii3artfeieii~p~@'$e'~~~j~~~ttei:(&($.~'"G.~ffl~~Gl~i\,~J::~;~~~.~m~.ffl1
~liiaiiif.flt - _. _, - - - - - - - - - - - _. u - - - - u - - - - - - - - - - - - mm _m - - - - - - - - u u m m - u - - - _, - - - - _u - - - -- - - -- -, - - - - - u -- -,.' "-r_~.[~~~;~~::tDt:~~~:~e!~:.J
11. Maintenance and Ownership ofthe Proiect
A. The City shall not take title to and shall not be responsible for the repair or maintenance
of the infrastructure created as part of the Project, including any pipes, laterals or other
infrastructure constructed and installed pursuant to this Agreement. The provisions of this
~Section shall survive the expiration or termination of this Agreement.
12. Water Supplv for DEP's Construction Requirements.
A. DEP Water Requirements. The Town shaIl complete the Phase I Construction Work by
the deadline set forth in Blillibit CExhibit B hereto in order to provide DEP with certain
water requirements it will have in connection with its Water for the Future program. The
Final Drawings and Specifications for the Phase I Water Main must ensure that such water
requirements are met, as described in Section 5.B(I)( d)(i) and Exhibit GQ. and that UWWD
operates in accordance with the specifications set forth on Exhibit GQ. hereto, and the Town
must continuously operate the Phase I Wwater Mmain resulting from this Project to meet
such requirements. The Town hereby represents that the specifications set forth on Exhibit
Q:g accurately representthe.f~e: y'!~!~,_~~fl_~!l.~!':'~!~;'~.~!~Au~ren~ and fu~ s>..~tem demand~ __.....{ Formatted: Not Highlight
-
water treatment plant capacity and transmission caoacity~ ofUWWD water and covenants to
advise DEP of any changes to such specifications.
26
B. tw ater Rate. For all water provided to the Site to meet the construction needs ofDEP and
its contractors in connection with its Water for the Future Program (or other construction
projects), the Town shall charge DEP or DEP' s contractors the rate per gallon that the Town
charges its other commercial customers in accordance with the annual rate schedule
published by the Town, pursuant~ci-secHon-~34~rA'r61tlie":18wjn;fWaDi"in~er.toWT1- ,.... =~~D==~::i~':~::'
on Town or DBP property?
~ - 9~;' Hie - sam-e-eieaiiii1r-eRafgBs"fts- et:Ber-GeiiliBei:6r&l-easteiii8fii'(e:g.~-pra';'iamg -a- - --"- .coiIinillrit[c411~"'tOTOwii::P1""c6m;nri."
.. ............ .. ;Cir~ie'.'~iJisr;lhis'al'iicin;;":<-':,;; ....
memaly Bill Basea e~ v:ater meteF1'ea~iflgll[;.vRieh meter shall Be e'.Yfl~~ !'fie! HlaietajeeaBY . -. y '. .. .
~.
13. Independent Contractors
A. The Town and DEP agree that the Town and any of its contractors or consultants are
independent contractors and not an employee ofDEP or the City. Accordingly, neither the
Town, its contractors or consultants or any of their respective employees or agents will hold
themselves out as, or claim to be, officers or employees of the City, or ofany department,
agency or unit of the City, by reason of this Agreement, and they will not, by reason of this
Agreement, make any claim, demand or application to or for any right or benefit applicable
to an officer or employee of the City, including, but not limited to, Workers' Compensation
coverage, Disability Benefits coverage, Unemployment Insurance benefits, Social Security
coverage or employee retirement membership or credit
B. All persons who are employed by the Town and all consultants or independent
contractors who are retained by the Town to perform services under this Agreement are
neither employees of the City nor under contract with the City. The Town, and not the City,
is responsible for their work, direction, compensation, and personal conduct while engaged
under this Agreement. Nothing in this Agreement shall impose any liability or duty on the
City for the acts, omissions, liabilities or obligations of the Town and its contractors or
consultants, or any of their respective officers, employees, or agents, or for taxes of any
nature, or for any right or benefit applicable to an officer or employee of the City, including,
but not limited to, Workers' Compensation coverage, Disability Benefits coverage,
Unemployment Insurance benefits, Social Security coverage or employee retirement
27
membership or credit Except as specifically stated in this Agreement, nothing in this
Agreement shall impose any liability or duty on the City to any person or entity.
14. Insurance; Bonds.
A. The Town represents it is adequately insured. Before any Design Phase Work or
Construction Work is commenced hereunder, the Town shall require its consultants,
subconsultants, contractors and subcontractors performing such work to procure and
maintain insurance in the types and amounts set forth in Section II of Exhibit J2E during the
entire period of the Work. The City shall be named as an additional insured on each and
every such insurance policy. As required in Exhibit E.Q, proof of insurance for each and
every such policy required hereunder shall be furnished to the DEP for review and approval
before any Design Phase Work or Construction Work is commenced.
B. In addition to other bonds required by law, ifany, for the performance and completion of
the Construction Work for both Phase I and Phase II, the Town shall require approved
contractors and subcontractors to provide a performance bond or other security acceptable to
the City, in a form acceptable to the City. The performance bond or other security shall
name the City and the Town as obligees in the full amount of the cost of the work performed
by the contractor or subcontractor, shall be issued by a surety company qualified to do
business in the State of New York, and shall secure the faithful performance and completion
of all work required of the contractor. In addition, the Town shall require approved
contractors and subcontractors to provide a payment bond or other security acceptable to the
City in the full amount of the work performed by the contractor or subcontractor
guaranteeing prompt payment of monies due to all persons furnishing labor or materials in
the prosecution of the Construction Work, as required by the State Finance Law Section 137.
15. Indemnification.
A. To the fullest extent permitted by law, the Town and its contractors or consultants shall
indemnify, defend and hold the City, its employees and agents (the "Indemnitees") harmless
against any and all claims (including but not limited to claims asserted by any employee of
the Town, its contractors, consultants and/or subcontractors) and costs and expenses of
28
~hatever kind (including but not limited to payment or reimbursement of attorneys' fees and
disbursements) allegedly arising out of or in any way related to the operations of the Town,
its contractors, consultants and/or subcontractors in the performance of this Agreement or
from the Town, its contractors, consultants and/or subcontractors' failure to comply with any
of the provisions of this Agreement or of the law. Such costs and expenses shall include all
those incurred in defending the underlying claim and those incurred in connection with the
enforcement of this Section by way of cross-claim, third-party claim, declaratory action or
otherwise. The parties expressly agree that the indemnification obligation hereunder
contemplates (1) full indemnity in the event of liability imposed against the Indemnitees
without negligence and solely by reason of statute, operation of law or otherwise; and (2)
partial indemnity in the event of any actual negligence on the part of the Indemnitees either
causing or contributing to the underlying claim (in which case, indemnification will be
limited to any liability imposed over and above that percentage attributable to actual fault
whether by statute, by operation oflaw, or otherwise). Where partial indemnity is provided
hereunder, all costs and expenses shall be indemnified on a pro rata basis.
B. Indemnification under this Section or any other provision of this Agreement shall operate
whether or not the Town, its contractors, consultants and/or subcontractors have placed and
maintained the insurance specified under Section 14.
C. The CelltmeterTown waives all ri2hts against the City for any daml12es or losses for
which either is covered under aanv in~rance required under this Section and Exhibit D
(whether 01' not such insurance is actually procured) or anv other insurance apolicable to the
ooerations of a contractor or subcontractor of the Town.
G.:!1- The provisions of this Section shall not be deemed to create any new right of action
in favor of third parties against the City.
16. Acceptance of Final Payment.
The acceptance by the Town, or by anyone claiming by or through it, of the final payment,
whether such payment be made pursuant to any judgment of any Court, or otherwise, shall
constitute and operate as a release to the City from any and all claims of and liability to the
29
Town for anything heretofore done or furnished for the Town relating to or arising out of this
Project and the Construction Work done hereunder, and for any prior act, neglect or default
on the part of the City or any of its officers, agents or employees, excepting only a claim
against the City for the amounts deducted or retained in accordance with the terms and
provisions of this Agreement or by law.
17. Notices.
All notices required or permitted hereunder shall, unless otherwise specified, be in writing
and be delivered by hand, or by overnight mail or by certified mail, return receipt requested,
to the parties at the following addresses:
To DEP and the City:
New York City Department of Environmental Protection
71 Smith Avenue
Kingston, New York 12401
Fax: (845) 340-7836
Attn: Todd West/Dan Michaud
With a copy to:
New York City Department of Environmental Protection
Office of the General Counsel
59-17 Junction Boulevard 19th Floor
Flushing, New York 11373
Fax (718) 595-6543
Attn: General Counsel
To the Town:
Town of Wappinger
20 Middlebush Road
Wappingers Falls, New York 12590
Attn: Town Clerk and Attn: Town Supervisor
With a copy to:
Albert P. Roberts, Esq.
Vergilis, Stenger, Roberts, Davis & Diamond, LLP
1136 Route 9
Wappingers Falls, New York 12590
Either party may, from time to time, change its address for notices by giving notice of such
30
change to the other party in the manner specified in this Section.
18. Compliance with Public Biddine and Procurement Reauirements.
-The Project Work is a contract for Public Work as such is defined in Article 5-A of the NY
General Municipal Law. The Town shall comply with all public bidding and procurement
requirements that are applicable to the Town by State or local law or would be applicable to
the Town by State or the local regulations thereunder if the Town were funding the Work, in
soliciting or procuring any of the Work.
19. Administration of Contracts.
The Town shall be responsible for administering all consultant contracts and construction
contracts necessary to complete the Project Work to ensure that such contracts comply with
all applicable laws and regulations.
20. Construction Work Contracts
A. Any contract ay SlI13aeRtmet between the Town and any person, firm or other entity for
the performance of any aspect of the Project Work and anv related subcontract shall contain
the following:
(I) a requirement that the contractor or subcontractor, as applicable, perform such
work in accordance with the terms hereof, and with all applicable federal, State and
local laws and regulations;
(II) a provision that the contractor or subcontractor, as applicable, agrees to
indemnify the City and its agents to the same extent and on the same conditions set
forth at Section 15 of this Agreement;
(III) a provision that nothing in such contract or subcontract shall be deemed to
create any contractual relationship between any contractor or subcontractor and the
City;
(IV) a provision that nothing contained in such contract or subcontract shall impair
the rights ofthe City and/or DEP hereunder;
31
(V) a requirement that the contractor or subcontractor, as applicable, obtain insurance
upon the same terms and conditions and in the same amounts as required herein .in
Section 14 and Exhibit Eat AttaelmleRt A;
(VI) a statement that the contractor or subcontractor, as applicable, has not
engaged and will not engage in any unlawful discrimination based upon race, creed,
color, national origin, sex, age, disability, marital status or sexual orientation with
respect to all employment decisions including but not limited to recruitment, hiring,
upgrading, demotion, downgrading, transfer, training, rates of pay or other forms of
compensation, layoffs, termination, and all other terms and conditions of
employment;
(VII) a provision that the contractor or subcontractor, as applicable, fully comply
with all applicable prevailing wage requirements and all other applicable
requirements of Section 220 of the Labor Law; and
(VIII) a provision requiring that any further contracting or subcontracting by the
contractor or subcontractor, as applicable, is subject to approval by the Town.
(a) Except for any contract between the Town and its employees, the Town
agrees not to enter into any contract or subcontract for the performance ofits
obligations, in whole or in part, under this Agreement without the prior
written approval of the DEP. Two copies of each such proposed contract or
subcontract shall be submitted to the DEP with the Town's written request
for approval.
(b) The Town agrees that it is fully responsible to the DEP for the acts and
omissions ofits contractors and subcontractors and of persons either directly
or indirectly employed by such contractors and subcontractors as it is for the
acts and omissions of any person directly employed by it
(c) The Town shall not in any way be relieved of any ofits responsibilities,
duties and liabilities under this Agreement by virtue of entering into any
contract or subcontract for the performance of any portion of the Work.
32
21. Town's Representations. The Town represents and warrants that:
A. It has all requisite power and authority to execute, deliver and perform this Agreement.
B. This Agreement has been duly authorized by all necessary action on the part of the
Town, has been duly executed and delivered by the Town and, assuming due execution and
delivery by the City, constitutes the legal, valid and binding agreement of the Town,
enforceable in accordance with its terms.
C. The execution and delivery of this Agreement, and compliance with the provisions
hereof, do not and will not conflict with or constitute a violation or default under any
provision of applicable law, charter, ordinance or regulation or to the extent of the Town's
knowledge of any material agreement, judgment, injunction order, decree or other instrument
binding upon the Town.
D. Acceptance of funds from the City hereunder shall be deemed at such time to be a
reaffirmation of the foregoing representations and warranties.
22. Town's Covenants. The Town covenants and al!rees that:
A. The Town can meet and will at all times for the duration ofthis Alrreement be able to
~ its obligations to provide water described herein and on Exhibit C hereto. The Town
alrrees to undertake any imorovements or infrastructure uDlmlCles or additions that would be
required for the Town to meet its oblie:ations to orovide water to the Site and to the homes
within the service area of the final alrreed unon Phase IT Service Are~
B. The Town further agrees that it will comply with the provisions of Article 12-A of the
Town Law in order to extend the boundaries of the UWWD to encompass the Phase II
Service Area.
(I) If a permissive referendum is called for and the order extending the UWWD is
defeated in such referendum, the Town reserves the right to alter the boundaries of
the Phase II Service Area and commence a new proceeding under the provisions
t:IftEief-of Article 12-A of the Town Law.
33
(II) In the event that the Town does not choose to alter the boundaries of the Phase II
Service Area or a second permissive referendum fails, further work on Phase II shall
cease and the Town shall be entitled to payments for all feligible ,Ceosts previously
incurred with respect to Phase II. to the extent that such costs. toe:ether with the
Elie:ible Costs oreviouslv incurred with resoect to Phase 1. do not exceed the Total
Eligible Costs specified in Section 9(B).
23. City's RepresentatioDS. The City represents and warrants that:
A. It has all requisite power and authority to execute, deliver and perfonn this Agreement.
DEP is a validly authorized and existing agency of the City, with full right and power to
execute, deliver and perfonn its obligations hereunder.
B. The execution, delivery and performance by the City and DEP of this Agreement are
within the powers of the City and DEP and have been duly authorized by all necessary action
by or in respect of, or filing with, any governmental body, agency or official (except for the
approval by the Mayor of the City and registration of the Agreement pursuantto Section 328
of the City Charter). The City and DEP also represent that they have complied with all
applicable laws in connection with the execution, delivery and performance of this
Agreement and that prior appropriation for the costs of this Agreel11ent have been made by
the City and DEP.
C. This Agreement will, when executed by the City and registered by the City pursuant to
Section 328 of the City Charter, and assuming the due execution and delivery by the Town,
constitute the legal, valid and binding agreement of the City and DEP, enforceable in
accordance with its terms.
D. The execution and delivery of this Agreement by the City and DEP, and compliance with
the provisions hereof, do not and will not conflict with or constitute a violation or default
under any provision of applicable law, charter or ordinance or regulation or, to the extent of
the City's knowledge, any material agreement, judgment, injunction, order, decree or other
instrument binding upon the City or DEP.
34
24. No Discrimination.
The Town agrees that it has not and will not, in connection with the performance of this
Agreement, engage in any unlawful discrimination based upon race, creed, color, national origin,
sex, age, disability, marital status or sexual orientation with respect to all employment decisions
including but not limited to recruitment, hiring, upgrading, demotion, downgrading, transfer,
training, rates of payor other forms of compensation, layoffs, termination, and all other terms
and conditions of employment.
25. Compliance with Laws.
The Town agrees that it will comply with all federal, State and loca1laws, rules and regulations
in performing its obligations hereunder and in prosecuting and completing all the Work.
26. IncorDoration of ApDlicable Laws.
The Parties agree that each and every provision offederal, State or local law, rule, regulation or
order, applicable to this Agreement, that is required to be included in this Agreement, is
incorporated herein by this reference. Furthermore, it is hereby stipulated that every such
provision is to be deemed inserted herein, and if, through mistake or otherwise, any such
provision is not inserted or is not inserted in correct form, then this Agreement shall forthwith,
upon the application of either Party, be amended by any such insertion so as to comply strictly
with such law, rules, regulation or order and without prejudice to the rights of either Party.
27. Cooperation with Investieations.
The Town and the City agree to cooperate fully and faithfully with any investigation, audit or
inquiry relating to the subject matter of this Agreement conducted by a New York State or City
governmental agency or authority that is empowered directly or by designation to compel the
attendance of witnesses and to examine witnesses under oath, or conducted by the Inspector
General of a governmental agency or entity that is a party in interest to the transaction, submitted
bid, submitted proposal, contract, lease, permit or license that is the subject of the investigation,
audit or inquiry. Any breach or violation of the foregoing may be deemed a breach or violation
of a material provision of this Agreement.
35
28. CODvri2bts and Access to Information.
The City shall have the right to use all written materials, documents, data and information that
are gathered or prepared pursuant to the Agreement for any purpose deemed appropriate by the
City. In furtherance thereof. the Town herebv lZ\'8l1ts to the City a rovalty-free. worldwide. non-
exclusive. oemetual. irrevocable license to use. execute. reproduce. make. modify. adapt.
displav. oerform. create derivative works of all written material. documents. data and
information that are e:athered or oreoared pursuant to this Ae:reement. includine: but not limited
to all desie:ns. olans. soecifications and models created hereunder.
30. No Claim A2ainst Office". A2ents or EmDlovees.
No claim whatsoever shall be made by either fparty against any individual officer, agent or
employee of the other PartY for, or on account of, anything done or omitted in connection with
this Agreement.
29. Infrin2ements.
The Town shall defend, indemnify and hold the City harmless from any and all claims (even if
the allegations of the lawsuit are without merit) or judgments for any damages and from the costs
and expense to which the City may be subject or which it may suffer or incur allegedly arising
out of or in connection with any infringement by the Town, its contractors, &flEI.lel=-consultants
and/or subcontractors of any copyright, trademark, trade secrets or patent rights or any other
property or personal right of any third PartY in the performance of this Agreement. The Town
shall defend, indemnify, and hold the City harmless regardless of whether or not the alleged
infringement arises out of compliance with the Agreement's scope of work. Insofar as the facts
or law relating to any claim would preclude the City from being completely indemnified by the
Town, the City shall be partially indemnified by the Town to the fullest extent permitted by the
law.
31.~
Neither Party shall be deemed to have waived the observance or performance of any term or
provision of this Agreement, or any default hereunder, except pursuant to a written instrument of
waiver signed by such PartY. No waiver of the observance or performance of any term or provision
36
of this Agreement, or of any default hereunder, shall be deemed to be a waiver of any subsequent
failure to observe or perform this Agreement, or of any subsequent default hereunder.
32. Protection of City Property.
j.....{ Formatted: No bullets or numbering
-Pr. The Town assumes the risk of, and shall be responsible. for any loss or damage to Town ot.
City property, including property and equipment leased by the City, used in the performance of this
Agreement, where such loss or damage is caused, either directly or indirectly, by the acts, conduct,
omissions, failure to comply with the provisions of this Agreement or law, or lack of good faith of
the Town, its officers, managerial personnel and employees, or any person, firm, company, agent or
others engaged by the Town as expert, consultant, subconsultant, specialist, contractor, or
subcontractor hereunder.
B,~In the event that any City property is lost or damaged, except for normal wear and
tear, then the City shall have the right to withhold further payments hereunder for the
purpose of set-off, in sufficient sums to cover such loss or damage.
33. Retention of Records.
A. The Town agrees to retain all books, records and other documents relevant to this
Agreement for six (6) years after the final payment or termination of this Agreement,
whichever is later. City, State and federal auditors and any other persons duly authorized by
the DEP or the Town shall have full access to and the right to examine any of said materials
during said period, including to ensure that any funds administered under this Agreement
were applied in accordance with the terms and conditions herein. The Parties shall have the
right, at any time during normal business hours, to inspect, examine and/or make copies of
any such books, records or other documents. The same right shall be afforded to
representatives of the State Comptroller 01' the City Comptroller, or any other person duly
authorized by DEP or the Town.
B. All receipts, management and disbursements of funds provided by the City pursuant to
this Agreement, and the records and accounts evidencing such receipts, management and
disbursements, shall be subject to audit by the State Comptroller and by the City, including
37
the City Comptroller, pursuant tothe rights and powers of such officials as conferred upon
them by State and City law. The Town agrees to cooperate with any such audits.
C. The Town shall prepare and maintain its records and accounts of receipts, management
and disbursements of funds under this Agreement in accordance with generally accepted
government accounting standards and shall provide a summary of such records and accounts
toDEP as requested.
34. Earlv Termination.
A. The City may terminate this Agreement in the event that:
(n the Necessary Approvals and all permissions with respect to easements and land
use with respectto Phase I or the Site are not, or cannot, be obtained or granted on or
before I~~!~!!l:~_~:,Febl1.tarV )J,_~2!?t_~___ __.u.....__m.._m....uuu.uum...__m___.._- ...-.{ Formatted: Not HI\tlllght
illlany substantial litigation has been filed that would adversely affect fulfilling the
obligations herein and the milestones in BJ<kihit CExhibit B: or
(+Al Ill) the City determines there has been a default hereunder in accordance with
Section 35.
B. The Town may terminate this Agreement in the event that it determines that the Eligible
Costs of Phase I design and construction will exceed $11.000.000.00. provided that such
ootion to terminate must be exercised prior to the award of anv Construction Contract and in
no event lateI' than .febru~.11 201 ~:______mu....nm.u....mm_m_m_m_._..________.um...n_.....-{ Formatted: Not Hlghn\tlt
C. In the event that this Agreement is terminated in accordance with the territs of this
section. J}f6't'i6etk1Tat any funds previouslv spent by the Town for Elilrible Costs in
accordance with the terms herein shall be reimbursed.
35. Default
A. If either Party defaults in the observance or performance of any material term of this
Agreement, and such default continues for more than fifteen (15) calendar days after written
notice of such default is received by the defaulting Party from the non-defaulting Party, the
38
non-defaulting Party may, in addition to any other rights or remedies available at law or in
equity, suspend work or terminate this Agreement by wrinen notice of termination to the
defaulting Party, specifying a date of termination which shall not be less than five (5)
business days from the date of such notice of termination is sent. However, if such default
cannot reasonably be cured within fifteen (15) calendar days, the Agreement may not be
terminated if (i) the defaulting Party commences appropriate actions to cure the default prior
to the end of the fifteen (15) day -period, (ii) such actions have been approved in writing by
the non-defaulting Party and (Hi) the defaulting party thereafter diligently prosecutes the
actions necessary to cure the default to the complete satisfaction of the non-defaulting Party.
B. In addition to any other right or remedy available to the City at ~law or in equity, if the
Town defaults in the observance or performance of any material term of this Agreement,
including compliance with the deadlines set forth on BRhil3it CExhibit B hereto (which shall
be deemed a default of a material term of this Agreement), and such default continues for
more than fifteen (15) calendar days after written notice of such default is received by the
Town from the City, the City may withhold future payments to the Town. .-However, if
such default cannot reasonably be cured within fifteen (15) calendar days, the Agreement
may not be terminated if (i) the E1elfaltltiag p~' Town commences appropriate actions to
cure the default prior to the end of the fifteen (15) day period, (ii) such actions have been
approved in writing by the tl9f1 E1e~titlg part)Citv. -and (iii) the ~ thereafter
diligently prosecutes the actions necessary to cure the default to the complete satisfaction of
the Heft aefattltiftg party City. In the event of a default, including meeting any milestones on
E)lhil3it CExhibit B, DEP shall have the option to (A) take over management of the Project
(and the Town shall make any changes or assignments necessary to effect such option)
and/or (B) terminate the remaining portions of the Project at DEP's discretion.
C. Delav in Obtaining Permits. In the event that the Town has submitted a complete
application for a permit or approval to a third party agency, department, utility or
government entity having jurisdiction over said approval and the Town has duly prosecuted
the application before said agency and timely complied with all reasonable requests of said
agency, the Town shall not be in default of any material term or deadline provided in this
39
Agreement that requires said approval. Notwithstanding the foregoing, DEP may terminate
the Agreement pursuant to the provisions of Section 34.A(I).
D. Reimbursement. In the event thatDEP terminates this Agreement in accordance with the
provisions herein, any funds advanced by the City and not actually spent by the Town
~for Eligible Costs prior to such termination shall be promptly reimbursed to the City.
36. Force Maieure
A. The period of time during which either party is prevented or delayed in any performance
or fulfilling any obligation under this Agreement, other than the payment of money, due to
unavoidable delays caused by fire, catastrophe, strikes or labor trouble, civil commotion,
Acts of God, the public enemy...QI; acts of terrorism-l ga'/eFfH'ReR1&I flrellieitieRs ar
reg1:lletieRs er iRaBility tEl aetaiR materials BY 'BaseR tfteFeef, ar a~' ~er eaases BeyeRS
Sl:i6a fl~'S FeBseRaele eeBlfal, shall not be considered a basis for default under this
Agreement. Notwithstandin2 such force maieure. in the event that the City determines that
the Town will not be able to meet the milestones on Exhibit B hereto. the City may terminate
this Ae:reement in accordance with the terms herein. Be aElEies ta SIleA fl~"S time far
perrerlftaRee, BJiEi Sl:leA flarty shall have Ra liaBility BY ,easeR afsueh selay, e!ceept taat &As a
condition to the T<?wn's right to avail itself of Force Majeure, the Town must give the City
written notice of such claimed fForce mMajeure not later than three (3) business days
following the occurrence of such F-force mMajeure.
37. Amendments.
This Agreement may not be modified or amended except by an instrument in writing signed by
both of the Parties and New York City Office of the Corporation Counsel. This agreement can
be terminated by mutual agreement with the written consent of both Parties and the consent of
the New York City Office of the Corporation Counsel.
38. No Third-Dam Beneficiaries.
This Agreement is not intended to create any benefit or interest in any third party.
39. Assimment.
This Agreement may not be assigned, in whole or in part, except by agreement of the Parties and
40
pursuant to a written instrument signed by both of the parties hereto.
40. Cooperation: Oblillation to Provide Documents.
Both parties acknowledge and agree that during the term of this Agreement each shall cooperate
with the other and provide each other promptly with all documentation, reports, and information
that may be necessary to carry out their respective obligations under this Agreement.
41. Choice of Law: Specific Performance.
Pc: This Agreement shall be governed by and construed in accordance with the laws of the ..touo{ Formatted: Normal, Line spacing: 1.51ines
State of New York. To the fullest extent permitted by law, the Parties consent to the jurisdiction
of the Supreme Court of the State of New York in connection with any action by either Party
against the other pursuant to this Agreement.
&&- The City, DEP and the Town each hereby agree that irreparable damage would occur
in the event that any provision of this Agreement were not performed in accordance with its
specific terms or were otherwise breached, and that money damages or other legal remedies
would not be an adequate remedy for any such damages. Accordingly, the Parties
acknowledge and hereby agree that, unless this Agreement has been terminated in
accordance with the terms set forth herein, in the event of any breach or threatened breach by
the Town, on the one hand, or DEP and the City, on the other hand, of any of their respective
covenants or obligations set forth in this Agreement such non-breaching party shall be
entitled to an injunction or injunctions to prevent or restrain breaches or threatened breaches
of this Agreement, and to specifically enforce the terms and provisions of this Agreement to
prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and
obligations of the other under this Agreement. Further, the City and DEP shall have the right
to require the Town, upon written notice to the ToWn, to seek ajudicial order compelling any
contractor with whom the Town has contracted to perform work required by this Agreement
to fulfill such contractor's obligations under its contract with the Town in order to prevent
breaches or threatened breaches of such contract or to enforce compliance with, the
covenants and obligations of the Town and its contractors under this Agreement and
contracts into which the Town has entered to fulfill its obligations under this Agreement.
41
42. Severability: Entire A2reement.
A. If any provision of this Agreement or its application is detennined to be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of all other provisions
and applications hereof shall not in any way be affected or impaired.
B. This Agreement constitutes the entire understanding between the Parties with respect to
the subject matter hereof and supersedes all prior agreements with respect to such subject
matter, whether written or oral.
43. Counteroarts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument
42
IN WITNESS WHEREOF, the r 1 of the New York City Department of
Environmental Protection on behalf of the City and the Supervisor of the Town on behalf of the
Town, have executed this Agreement, in quadruplicate, one part to be filed with the Comptrol1er
of the City of New York, one part to be retained by the Department of Environmental Protection
and two parts to be delivered to the Town.
THE CITY OF NEW YORK
TOWN OF WAPPINGER
BY:
BY:
r 1
Department of Environmental Protection
Supervisor of Town of Wappinger
Dated:
.2012
Dated:
,2012
Approval as to Form and Certified as to Legal Authority
Acting Corporation Counsel of the City of New York
Dated:
State of New York )
ss.:
County of )
On the _ day of , in the year 2012 before me, the undersigned,
personally appeared . personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is(are)
subscribed to the within instrument and acknowledged to me that helshe/they executed the same
in his/her/their capacity(ies), and that by hislherltheir signature(s) on the instrument, the
individual(s) or person upon behalf of which the individual(s) acted, executed the instrument.
Notary Public
43
State of New York )
SS.:
County of )
On the _ day of . in the year 2012 before me, the undersigned, personally
appeared . personally known to me or proved to me
on the basis of satisfactory evidence to be the individua1(s) whose name(s) is(are) subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the
individua1(s) or person upon behalf of which the individua1(s) acted, executed the instrument.
Notary Public
44
Exhibit A
gesiga Speei:fieatiaas aaaConceot Maps for Phase I and 11
45
En!iieit BExhibit B
BestgR S\geeitieatioos alla M&I3s fer PRase IIProiect Milestones
46
EI{hi19it CExhibit C
UWWD Caoacity Ene:ineer's ReoortMilestaaes
47
Exhibit D
INSURANCE REOUIREMENTS
GENERAL REOUIREMENTS:
I. Insurance Coverae:es Reauired To Be Maintained Bv the Town (Ae:reement. Paragraph 12)
Notes: Insurance indicated bv 00 is reQuired
Insurance certificates. noIicies. and endorsements must be sent to the New York City
Denartment of Environmental Protection ("DEP"). 59-17 Junction Boulevard. 19th Floor. Flushin2.
New York 11373. Attention: General Counsel.
(X) Worker's Comnensation
Statutory ocr New York State Law
without ree:ard to iurisdiction (See
Section 1.01.01 below)
(X) Emolover's Liability
StatutOry (See Section 1.01.02)
(X) Commercial General Liability CG 00 01 (ed. t 1/88) or equivalent.
Combined Sine:te Limit - Bodilv Iniury and Propertv Damage
$2.000.000 oer Occurrence
$2.000.000 oroductslcomoleted
onerations alll!:ree:ate
$4.000.000 lleneral ae:e:regate
$25.000 maximum deductible
(See Section 1.01.03a for a:dditional reQuirements)
ex) Automobile Liabilitv: CA 00 01 (ed. 01/80) or eauivalent.
Combined Single Limit - Bodilv Iniurv and ?ronertv Damage
$1.000.000 each occurrence
The following coverae:e must be nrovided:
(X) Comorehensive FOlm (X) Owned ex) Hired (X) Non-Owned
(See Section 1.01.04)
II. Insurance Coverages ReQuired to be Maintained bv Consultants/Subcontractors Hired or
Retained bv the Town (Ae:reement Parae:raoh 12)
Notes: Insurance indicated bv (X) is reQuired.
Insurance certificates. oolicies. and endorsements must be sent to the New York City
Denartment of Environmental Protection ("DE?"). 59-17 Junction Boulevard. 19th Floor.
Flushine:. New York 11373. Attention: General Counsel.
48
(X) Worker's Compensation
Statutorv per New York State Law
without reeard to jurisdiction (See
Section 1.01.01 below)
(X) Emplover's Liabilitv
Statutory (See Section 1.01.02)
ex) Commercial General Liabilitv CO 0001 (ed. ] 1/88) or eQuivalent.
Combined Single Limit - Bodilv Iniury and Property Damae:e
$1.000.000 per Occurrence
$1.000.000 oroductslcompleted
operations ae:l!:ree:ate
$2.000.000 e:eneral alZe:ree:ate
$25.000 maximum deductible
(See Section 1.0 1.03a for additional reauirements)
DC) Automobile Liability: CA 000] (ed. 01/8m or eauivalent.
Combined SinlZle Limit - Bodily Injurv and PropertY DamalZe
$1.000.000 each occurrence
The followine: coverae:e must be provided:
ex) Comprehensive Form ex) Owned ()() Hjred . ex) Non-Owned
(See Section 1.01.04)
(X) Other Insurance:
All contracts for professional ene:ineerine. services for desie:n. ene:ineerine: surveys. andlor
construction manae:ement shall reauire that the consultant maintain and present evidence of a
professional Errors and Omissions policy oer CNA Desie:n Professionals 1-87503-A (Ed 08/83 or
eauivalent) with a U.S. domiciled company providine: limits of not less than $5 Million oerclaim. $5
Mill ion a~e:reeate. and a deductible or self-insured retention not to exceed $50.000 per claim.
If orofessional services are provided pursuant to this Ae:reement. the Contractor shall
maintain and submit evidence of Professional Liability Insurance aoorooriate to the tvpe( s) of such
services to be orovided under this Ae:reement in the amount of at least One Million Dollars
($1.000.000) oer claim. The oolicy or oolicies shall include an endorsement to cover the liabilitv
assumed by the contractor or consultant under this Ae:reement arisine: out of the nee:li2ent
performance of professional services or cauSed by an error. omission or nee.lie:ent act of the
contractor or consultant or anyone employed by the Contractor.
B. All subcontractors of the Contractor orovidin2 orofessional services under this
Ae:reement for which Professional Liability Insurance is reasonably commercially available shall
also maintain such insurance in the amount orat least One MiJlion Dollars ($I.OOO.Oom per claim.
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and the Contractor shall provide to DEP. at the time of the reauest for subcontractor approval.
evidence of such Professional Liability Insurance on forms acceptable to DEP.
C. Claims-made policies will be accepted for Professional Liability Insurance. All such
policies shall have an extended reporting period ootion or automatic coverage of not less than two
(2) vears. If available as an option. the contractor or consultant shall ourchase extended reoorting
period coverage effective on cancellation or termination of such insurance unless a new policy is
secured with a retroactive date. including at least the last Dolicy vear.
Ill. General Provisions Applicable to Insurance Coverages:
These provisions are apolicable to both the insurance coverages reouired to be
maintained bv the Town under the Agreement to which this Appendix is annexed. and the insurance
coverages reouired to be maintained by anv consultant/subcontractor engaged or retained bv the
Town. In each case. the reference to "contractor" shall mean the party reauired to maintain insurance
coverae:e. and the reference to "contract" shall mean either the Agreement (in the case of the Town)
or the contract pursuant to which the consultant or subcontractor is oroviding services (in the case of
a consultant or subcontractor.)
SPECIFIC INSURANCE REOUIREMENTS:
Section 1.01
1.01.01
Worker's Compensation and Disability Benefits Insurance:
Before performing anv work on the Contract. the Contractor shall procure Worker's
Compensation and Disability Benefits Insurance in accord with the laws of the State ofNew York on
behalf of all employees who are to provide labor or service under the contract. Two certificates of
such insurance or authority for self-insurance shall be furnished to DEP at its address shown above.
1.01.02
Employer's Liability Insurance:
Before performine: any work on the Contract. the Cpntractor shall procure Employer's
Liability Insurance affordine: compensation due to bodily in iurv bv accident or disease sustained by
any employee arising out of and in the course of his or her employment under the contract. Two
certificates of such insurance shall be furnished to DEP at its address shown above.
. Certificates confirming renewals ofinsurance shall be presented not less than 30 days
prior to the expiration date of coverage until all operations under the subiect contract are deemed
completed.
1.01.03
Commercial General Liability:
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Before commencine work on the contract. the Contractor shall maintain Commercial General
Liabilitv Insurance coverine: the Contractor as Named Insured and the Citv as an Additional Insured
in the amount of at least One Million Dollars ($1.000.000) per occurrence. Such insurance must be
maintained durine. the life of the contract and shall protect the Citv and the contractor or consultant
from claims for property damae:e and/or bodily iniurv. includine death that may arise from any of the
operations under this Agreement. Coyerae:e under this insurance shall be at least as broad as that
proyided by the most recently issued Insurance Services Office ("ISO") Form CG 0001. and shall be
"occurrence" based rather than "claims-made."
Such Commercial General Liability Insurance shall name the Citv. toeether with its officials
and employees. as an Additional Insured with coverae:e at least as broad as the most recently issued
ISO Form CG 20 10.
Two (2) certificates of insurance shall be furnished in a manner accePtable to the
DEP. toeether with copies of all endorsements as pertain to the reouirements of the subiect contract.
The policy shall contain no exclilsions or endorsements which are not acceotable to
the Citv.
(b) Commercial General Liabilitv - Endorsements
The followine endorsements are reQuired to be made on the policv:
1. Notices: Notices shall be addressed to the New York Citv Department of
Environmental Protection. 59-17 Junction Boulevard. 19th Floor. Flushine:. New
York J 1373. Attention: General Counsel.
2. Notice of Cancellation of Policy: In the event the contractor or
consultant receives notice. from an insurance company or other oerson. that any
insurance policy reouired herein shall expire or be cancelled or terminated for any
reason. the contractor or consultant shall immediately forward a copv of such notice
to both DEP. Attn: General Counsel. and the New York City Comptroller. Attn:
Office of Contract Administration. Municipal Buildine:. One Centre Street. Room
1005. New York. New York 10007.
1.01.04 Automobile Liabilitv
(a) Contractor will provide the City with evidence of insurance covenne: all owned.
non-owned and hired vehicles to be used in connection with the contract. Ifvehicles are used in the
provision of services under this Ae:reement. then the Contractor shall maintain Business Automobile
Liabilitv insurance in the amount of at least One Million Dollars ($1.000.000) each accident
combined sine:le limit for liability arisine: out of ownership. maintenance or use of any owned.
non-owned. or hired vehicles to be used in connection with this Ae:reement. Coverae:e shall be at
least as broad as the most recently issued ISO Fqrn1 CAOOOl.
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(b) Ifvehicles are used for transoortine: hazardous materials. the Business Automobile
Liability Insurance shaU be endorsed to oroyide oollution liability broadened coyerae:e for covered
vehicles (endorsement CA 99 48) as wel1 as oroof of MCS-90.
1.01.05
Insurance Ae:reement
General Requirements for Insurance Coveral!e and Policies
(a) AU required insurance policies shall be maintained with comoanies that may lawfuUy
issue the required oolicy and have an A.M. Best ratine: of at least A-I "VII" or a Standard and Poor's
ratine: of at least A. unless orior written auorowl is obtained from the City Law Deoartment.
(b) All insurance policies shall be primarY (and non-contrlbutin!f) to any insurance or
self-insurance maintained by the City.
(c) The Contractor shalI be solely responsible for the payment of all premiums for all
required insurance policies and all deductibles or self-insured retentions to which such policies are
subiect. whether or not the City is an insured under the policy.
( d) There shaH be no self-insurance uroe:ram with ree:ard to any insurance recuired under
this Article unless approved in writine: by the Commissioner. Any such self-insurance proe:ram shall
provide the City with al1 rie:hts that would be provided by traditional inSl.U'8l1ce required under this
Article. includine: but not limited to the defense oblie:ations that insurers are required to undertake in
liability oolicies.
(e) The City's limits of coveraQ:e for all types of insurance required under this Article
shall be the e:reater ofm the minimum limits set forth in this Article or (m the limits provided to the
Contractor as Named Insured under all orimarv. excess. and umbrella policies of that tvoe of
coyerae:e.
1.01.06 Proof ofInsurance
(a) For Workers' Compensation Insurance. Disability Benefits Insurance. and
Employer's Liability Insurance. the Contractor shall file one of the followine: within ten (0) Days of
award of this Ae:reement. ACORD forms are not acceptable Droof of workers' compensation
coverae:e.
1.
C-I05.2 Certificate of Workers' ComDensation Insurance:
2.
Insurance:
U-26.3 - State Insurance Fund Certificate of Workers' Compensation
52
3. Reouest for waDB Exemption (Form CE-200):
4. Eouivalent or successor forms used by the New York State Workers'
Compensation Board: or
5. Other proof of insurance in a form acceptable to the City.
(b) For each policy reQuired under this Asrreement. except for Workers' Compensation
Insurance. Disabilitv Benefits Insurance. Emplover's Liability Insurance. and Unemplovrnent
Insurance. the Contractor shall file a Certificate of Insurance with the Department within ten (1 Q)
Days ofaward of this Asrreement. All Certificates ofInsurance shall be (a) in a form acceptable to
the City and certify the issuance and effectiveness of such policies of insurance. each with the
specified minimum limits: and (b) accompanied by the endorsement in the Contractor's general
liability policy bv which the City has been made an additional insured pursuant to Section 7.02(B).
All Certificate(s) ofInsurance shall be accompanied by either a duly executed "Certification by
Broker" in the fonn attached to this Apoendix A or copies of all policies referenced in the Certificate
ofInsurance. If complete policies have not vet been issued. binders are acceptable. until such time
as the complete policies have been issued. at which time such policies shall be submitted.
(c) Certificates ofInsurance confirming renewals ofinsurance shall be submitted to the
Commissioner prior to the expiration date of coverage of policies reQuired under this Article. Such
Certificates of Insurance shall complv with the reQuirements of Section 7.08 (A) and Section
7.08(8), as apolicable.
(d) The Contractor shall provide the City with a COpy of any policy reQuired under this
Article upon the demand for such oolicy by the Commissioner or the New York City Law
Department.
(e) Acceptance by the Commissioner of a certificate or a policy does not excuse the
Contractor from maintaining policies consistent with all provisions oftrus Article (and ensuring that
subcontractors maintain such policies) or from any liability arising from its failure to do so.
(t) In the event the Contractor receives notice. from an insurance company or other
person. that any insurance policy reauired under this Article shall expire or be cancelled or
terminated for any reason. the Contractor shall immediately forward a copv of such notice to both
the Commissioner rinsert Aeencv name and appropriate addressl. and the New York City
Comptroller. Attn: Office of Contract Administration. Municipal Building. One Centre Street. Room
1005. New York, New York 10007.
1.01.07. Miscellaneous
(a) Whenever notice of loss. damalZe. occurrence. accident claim or suit is reQuired
under a general liability policv maintained in accordance with this Article. the Contractor shall
provide the insurer with timely notice thereof on behalf of the City. Such notice shall be eiven even
where the Contractor may not have coveralle under such policy (for examole. where one of
Contractor's emplovees was iniured), Such notice shall expresslv soecify that "this notice is being
53
given on behalf of the City of New York as Additional Insured" and contain the following
information: the number of the insurance policy: the name of the named insured: the date and
location of the damage. occurrence. or accident: the identity of the oersons or things injured.
damaged. or lost: and the title of the claim or suit ifapplicable. The Contractor shall simultaneously
send a CODY of such notice to the Citv of New York c/o Insurance Claims Specialist. Aff11'lD.ative
Litigation Division. New York Citv Law Department. 100 Church Street. New York. New York
10007. lfthe Contractor fails to complv with the requirements of this oarae:raoh. the Contractor
shall indemnify the Citv for all losses. iudgments. settlements and exoenses. including reasonable
attornevs' fees. arising from an insurer's disclaimer of covera~e citing late notice bv or on behalf of
the City.
(b) The Contractor's failure to maintain anv of the insurance required bv this Article shall
constitute a material breach of this Agreement. Such breach shall not be waived or otherwise
excused bv anv action or inaction by the City at anv time.
( c) Insurance covera2e in the minimum amounts required in this Article shall not relieve
the Contractor or its subcontractors of any liability under this Agreement. nor shall it oreclude the
City from exercisin2 any rights or taking such other actions as are available to it under any other
orovisions of this Agreement or Law.
(d) The Contractor waives all rights against the City. including its officials and'
emplovees for anv damages or losses that are covered under anv insurance reauired under this
Article (whether or not such insurance is actuallv orocured or claims are oaid thereunder) or any
other insurance applicable to the operations of the Contractor and/or its subcontractors in the
performance of this Agreement.
(e) In the event the Contractor requires anv subcontractor to procure insurance with
regard to anv operations under this Agreement and requires such subcontractor to name the
Contractor as an additional insured under such insurance. the Contractor shall ensure that such entity
also name the City. including its officials and emolovees. assn additional insured with coverage at
least as broad as the most recently issued ISO form CO 20 26.
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.,
Exhibit D
Water Specifications and Rate Schedules
55