Preview
FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022
"R"
EXHIBIT
FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022
RESOLUTION2015-146
ADOPTED DOC ID: 10521
.
THIS IS TO CERTIFY THAT THE F OLL OWING RESOLUTION NO. 2015-146 WAS
ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON
FEBRUARY 10, 2015:
RESOLVED that theTown Board of theTown of Southold hereby authorizes and directs
Supervisor Scott A. Russell to execute the Agreement for theInstallation ofTraffic Control
Devices between the County of Suffolk and the Town of Southold for the installationand
maintenance of trafficdevices at CR 48, Middle Road @ Depot Lane, Cutch6gue, subject tothe
approval of theTown Attorney.
Elizabeth A. NeviUe
Southold Town Clerk
RESULT: ADOPTED [UNANIMOUS]
MOVER: Jarnes Dinizio Jr,Councilman
SECONDER: Louisa P. Bvans, Justice
AYES: Ohosio, Dinizio Jr, Rulançl, Doherty, Evans, Russell
PLAINTIFF'S
.EXHIBIT
FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022
Town of Southold with County 0f
suffolk Agrcoment I.ocrition: CR 48, Middto Road @ Depot Lane, Cutchogue
Law Dept. No.
As Revised 10/11/I4
.
0RIGINAL
AGREEMENT FOR THE INSTALLATION OF
TRAFFIC CONTROL DEVICES
This AGREEMENT is betweenthe County of Suffolk("COUNTY"), a munfolpal coÆoration of
the Stateof New York, having its. principal
officeatthe County Center, Riverhead,New York 11901,
acting through itsduly constituted
Department of Public Works (the ''DEPARTMENT") located at335
Yaphank Avenue, Yaphank, Now York Il980.9744, and the Town ofSouthold (the"TOWN"), havingits .
office
principal at: 53095Main Road, PO Box 1179, Southold, NY 11971
The partiestothisAgreement desireto provideforthe installation
and maintenance of Devicesat a
locationwithin the TOWN forthe improvement of traffic
conditions,in accordance with a traffic
signal
plan on lile
with the DEPARTMENT.
TERMS AND CONDITIONS: Shallbe as set forth
inArticlesL
TERM: The Term of thisAgreement shallbe in perpetuity,commencing upon the lastdateset
forthbelow. The Term shallcontinueuntilterminatedin accordancewith the provisionsofthisAgreement.
IN WITNESS WHEREOF, the parties
hereto have executed thisAgreement as of thelatestdate
written below:
TOWN OF SOUTHOLD COUN OF SUFFOLK
By: By:
Name: TTARTJS ELL Date: Name: Date:
Supervisor or Designee
n ge toroby certifies under penalties of PLAINTIFPS
perjury that that I arnan officer of the Town of Southold. EXHIBIT
that I havoread and am familiar with sco.A5-7 of Article V
of the Suffolk Coun
odo, and that the Town of Southold
meetsall requirem to qualifyexemption thereunder.
Name
Date O
APPROVED AS TO FORM: APPROVED:
COUNTY OF SUFFOLK DEPAl? F PUBLIC WORKS
DENNIS M. BROWN y:
Suffolk County Attorney .
By: Name: PhillA. Berdolt
D Commisesoner
6 County DPW
f ff f a tr Title:
D EN BRADDISH Date: Date: t
AssistantCounty Attorney
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IElMiltEMÈI
00'417Ill
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FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022
Town of Southold with County O'Suffolk Road @ Depot Lane, Cutchogue
Agreement Locatiom CR 48, Middle
Law Dept.No._
As Revised 10/21/14
EXHIBIT A
WHEREAS, the DEPARTMENT operatesa program to improve trafficsignals,
markings, signs,
flashing beacons, associated appurtenances and the like in orderto ensure the safe and continuous
movement of and
traffic,
WHEREAS, the DEPARTMENT has determined that certainDevices are necessary at the
intersectionof CR 48, Middle Road @ Depot Lane, Cutchogue for the Improvement of traffic
conditionsat that
focation withinthe TOWN, and the TOWN acceptssaiddetermination,and
WHEREAS, pursuant toSection 136 ofthe New York StateHighway Law, the Commissioner of
the Suffolk County Department of PublicWorks ("Commissioner") isempowered to erectDevices, as
authorizedby the County Legislature,in orderto improvetraffic
conditions,and
WHEREAS, pursuant to Section1652-b of the Vehicleand TrafficLaw, the County is authorized
to install
trafficsignals,provided thatthey areadequately supported by a request and investigation,and
thatthe governing body withjurisdictionover thehighway, road,or streetentersinto an agreement with
the County regardingthe erectionand maintenance ofthe signal;and
WHEREAS, the partiesheretodesireto provide fortheinstallation
and maintenance ofDevices at
the aforesaidlocationwithin the TOWN forthe improvement of traffle
conditions, inaccordance with a
trailic
signalplan on filewiththe DEPARTMENT:
NOW, THEREFORE, inconsideration of the individualand mutual covenants,promises, and
herein
representations contained, thepartiesheretoagree as follows:
1. polinitions: The following tenns, whenever used in this Agreement, shallhave thefollowing
meaning:
Devices: Traffic signals,markings, signs,flashing beacons, associated appurtenances,and the
like.
Permit Applicant: The entity a Device
installing under a Suffolk County Highway Work Permit
using a designapproved by the Department.
7¥afficSignal ServiceReport: A reportof any and allwork performed on the Devices.
2. Design pnti Installation: The COUNTY shall,upon consultation with theTown regarding the
engineering and design of theDevices, at
install, the expense of the Permit Applicant or through the
COUNTY'S Capital orOperating Budget, Devices at the location
set forth
above.
3. Ownership:
A. Any and allDevices installedpursuant to thisAgreement shallbe the soleand exclusive property
of the TOWN.
B. Any'Devices removed from the designated
site(s) herein shall be delivered to either the
DEPARTMENT or the TOWN, as directed
by theCommissioner.
PLAINTlFFS
- 2- EXHIBIT
FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022
.. . .. .
Town of Southold whh County Of Suffolk Aercement Locallon: CR 48, Middle Road @ Depot Lane, Cutchogue
Law Dept.No._
As Revised 10/2I/14
4. Operation nm) Maintenance:
A. All costs incurred in the operation and maintenance of the Devices after installation
of the
Device(s),including anyand allcharges for shall
electricity, be bome bythe TOWN or,in thecase
of a Permit Signal,the Permit Applicant,untilsuch time for
as responsibility theoperation and
maintenance of the Devicesis assumed by the TOWN.
B. At such time as responsibility
for the operation
and maintenance ofthe Devices is assumedby the
TOWN, the TOWN shalloperateand maintain the Devices inaccordance with the current(as of
the date of assumption) Maintenance Specifications of the DEPARTMENT. A copy of said
specifications
is andwillbe availableupon requestat the DEPARTMENT.
C. In the event thatthe TOWN has a set ofMaintenance Specificationsequivalent to thatof the
DEPARTMENT, the TOWN may, subject to the review and approval of same by the
DEPARTMENT, use same in lieu
of the DEPARTMENT'S Maintenance Specifications.
D. In connectionwith Its maintenanceof theDevices, the TOWN shallprovide theCOUNTY with a
Traffic Signal Service Report whenever and wherever a maintenance problem exists which
preventsthe devicefrom operatingas designed.
E. The TOWN shallkeep all localpoliceauthorities
aware of the partyresponsiblefor maintenance
of the Devices. The TOWN shall establishprocedures thatwill allow maintenance contractors
and/orTOWN employees to providemaintenance servicesfor the Deviceson a 24-hour basis.
5. Modlilcation of Doylces: The TOWN shallnot alter
the signaloperation or timingof the Devices
without the priorwritten approval of theDEPARTMENT. In theevent of any to
alteration the signal
operationor timingof the Devices,the TOWN shallfbmish theDEPARTMENT withone (1) set of wiring
diagrams foreach alteration.
6. Representations nnd Warranties;
A. The TOWN shallenact any ordinance,order,nile,or regulationnecessaryfor the installation
and
maintenance of theDevices.
B. The TOWN shallcomply, and shallrequire Its directors,
officers, partners,trustees,and other
members of itsgoverning body, as wellas any personnel employed torender servicesunder this
Agreement, to comply with allapplicable rules,
regulations,and requirements of law, including
SutTolk localpreferencelaws and otherapplicableSuffolk locallaws, and reso-
Coimty County
lutionsofthe Suffolk County Legislature.
C. The TOWN shallmaintain fulland complete books and recordsof any and allTraffic Signal
Service Reports.Such books and records shallbe retainedfora periodof seven (7)yearsand shall
be availablefor inspection by theDEPARTMENT, orits duly designatedrepresentative,upon
writtennotice,during regularbusinesshours.
D. The COUNTY agreesto transferany and allwarrantiesand representationson allequipment and
materialsinstalledby the COUNTY or its permittees
to the TOWN.
PLAINTIFPS
EXHiBIT
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FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022
Town of Southold with Cotmty Of Suffolk Aercement 1.ocation:CR 48, Middle Road @ Depot Lane, Cutchogue
. Law Dept No,_...
As Revised 10/2t/14
7. Violation
A. In theevent that theTOWN failstomaintain the Devices in accordance with the terms ofthis
Agreement, theCOUNTY, inaddition toany other remedies to which itmay be entitled,may
withhold fundsfor any or all
traffic
improvements within the TOWN.
B, The COUNTY shallprovide the TOWN with writtennoticeof the TOWN'S failureto maintain
the Devices. Such notice shall specifythe particularfailure.The TOWN shall be given a
reasonableperiod oftime tocorrectany saidfailure.
8. Insurance
A. The TOWN shallprocure,pay the entire
premium for,and maintain insurance in cotmectionwith
the operationsand maintenance performed under thisAgreement, inamounts and types specified
by theCOUNTY. The TOWN agrees torequireallof itssubcontractorsin connectionwith work
performed for theTOWN relatedto thisAgreement, procure, pay the entirepremium for,and
maintainthroughout the term of thisAgreement, insurancein amounts and types equal tothat
specifiedby theCOUNTY for the TOWN. Unless otherwise specified by the COUNTY and
agreed to by the TOWN, in writing,
such insuranceshallbe as follows:
i COMMERCIAL GENERAL LIABILITY INSURANCE, including contractual
coverage, in an amount not less than TWO MILLION AND NO/100THS
($2,000,000.00) DOLLARS per occurrence for bodily injury and TWO MILLION
AND NO/100THS ($2,000,000.00)DOLLARS per occurrence forpropertydamage.
il.AUTOMOBILE LIABILITY INSURANCE, (ifany vehiclesare usedby the TOWN in
the performance of this
Agreement includingowned, non-owned, and hiredcars)in an
amount not lessthan Five Hundred Thousand Dollars(S500,000) per person, per
accident, for bodily injury and not less than One Hundred Thousand Dollars
($100,000) forpropertydamage peroccurrence.
iii.
WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE, in
compliance with all applicable New York State laws and regulations and
DISABILITY BENEFITS INSURANCE, if required by law. The TOWN shall
furnishto the COUNTY, priorto itsexecution ofthe Agreement, thedocumentation
required the New Workers'
by Stateof York Compensation Board of coverage or
exemption from to Workers'
coverage pursuant §§57 and 220 of the Compensation
Law. in accordance with GeneralMunicipal Law § 108, thisAgreement shallbe void
and of no effectunless theTOWN shall provide and maintain coverage during the
term ofthisAgreement forthe benefitof suchemployees as are required
to be covered
Workers'
by the provisions
of the Compensation Law.
iv.In the event the TOWN maintainsa COMPREHENSlVE GENERAL LIABILITY
INSURANCE policy form in lieuof Commercial General said
Liability, policymust
include all of the above requirements plus premises/operations,independent
contractors,
contractual,andbroad fonn propetty damage.
B. All policiesproviding such coverage shallbe issued by insurance companies with an A.M. Best
of A- or better.
All insuranceshallbe obtainedfrom cornpanieslicensedto do businessin the
rating
State ofNew York.
PLAINTlFFS
EXHtBIT
FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022
Town of Southold with County Of Suffolk Arrecrnent Location: CR 48, Middle Road @ Depot Lane, Cutchogne
. Law Dept. No......
As Revised 10/21/14
C. The County of Suffolkmust be named AdditionalInsured,and the TOWN shallfurnishannuallyto
the COUNTY, a declarationpage foreach such policy of insurance,and upon request,a trueand
certifiedoriginalcopy ofcach such policy,evidencing compliance with the aforesaidinsurance
requirements. Inthe case ofcommercial general insurance,
liability the County ofSuffolk shallbe
named as an additional
insured and the TOWN shallfurnish a Declarationpage and endorsement
page evidencing the County's statusas an additional
insuredon saidpolicy. Where work under this
agreement is sub-contracted, the TOWN must require the subcontractor to provide thatthe
COUNTY be named as an additional insured on all required as
policies, well as require the
subcontractor to providethe COUNTY with allrequiredevidence of insurance.
D. All such Declaration Pages, and
certificates, other evidence of insurance shallprovide forthe
County ofSuffolk to be notifiedinwritingthirty(30) days priorto anycancellation,non-renewal,
or materialchange in saidpolicies.
Required limitsofinsuranceare notto be modifiedby deductibles
thatthe COUNTY deems excessivewithout the COUNTY'S writtenpermission.Allsuch Declaration
Pages, policies
certificates, and otherevidence of insurance and notices shallbe mailed tothe
DEPARTMENT and to the Suffolk County Risk Management and Benefit Division at 700
Veterans Memorial Highway, 2nd Floor, Hauppauge, New York l 1788,or such other address of
which the COUNTY shallhave given the TOWN writtennotice.
E. ifthe TOWN, as a municipalcomoration, has a self
insurance program under which itacts as a self
insurer forany such requiredcoverage, it may provide self-fundedcoverage. Declarations and
or
eettificates, other evidence of such self-insurancein lieu of insurance issued by insurance
companies shallbe provided priorto the commencement of thisAgreement and shallcontinueto serve
as evidenceof such self-ftmdedcoverage until
such time thatthe TOWN ceases tobe self-insured.
In
the eventthat the TOWN ceases tobe self-insured,
the TOWN shallimmediately comply withthe
provisionsof subsections A through D under thisSection 8 and provide DeclarationsPages with
fifteen
(15) days ofceasingto be self-Insured.
F. In the eventtheTOWN failstoprovide theDeclarationPages or of
certificates insurance,or fails
to
maintain any insurancerequiredby thisAgreement, the COUNTY may, butshallnot be requiredto,
obtainsuch policiesand deduct the cost
thereoffrom payments due the TOWN under thisAgreement
or anyother Agreement between the COUNTY and the TOWN.
G. The COUNTY will
not authorizework to beginunder thisAgreement untilallthe required
insurance
has been obtainedand saidinsurance has been approvedand filedby the COUNTY. Approval ofthe
insurance by the County shallnot relieveordecrease the of
liability the TOWN. The TOWN shall
assume all for
responsibility the insurancerequirementsofany applicablesub-consultants.
9. Indemnification; To the greatestextentpermittedby law,the TOWN agrees thatitshallprotect,
indemnify, and hold harmless theCounty and itsofficers,
officials,
employees, contractors,agents, and
otherpersons (the "County Indemnified Parties")from and againstall liabilities,
fmes, penalties,actions,
attomeys'
damages, claims, demands, judgments, losses,costs,expenses,suits,or actionsand reasonable
fees,arisingout ofthe actsor omissionsor the negligenceof theTOWN, its officers,
officials,
eniployees,
contractors,and agents in connection with the servicesdescribed or referredto inthis Agreement. The
TOWN shalldefend the County inany suit,includingappeals, orat the County's option,pay reasonable
attomey's feesfordefense of any suchsuitarisingout or omissions
of the acts or negligence ofthe TOWN,
its officers,
officials,
employees, subcontractors,or agents,if
any, inconnection with the services
described
or referred
to in this
Agreement.
PLAINTIF FS
EXHIBIT
I 2se &J
FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022
Town or Southold with County Of Suffolk Aurcement Locadon: CR 48, Middle Road @ Depot Lane, Culchogue
Law Dept. No._
As Revised 10/21/14
10. Licenses: The TOWN covenants, warrants,and representsthat Ithas,and shallhave throughout
the tenn of thisAgreement, and that,tothe extentapplicable,itsemployees, agents,and subcontractors
have, and shall have throughout the tenn of thisAgreement, the required education, knowledge,
experience, and character necessary to qualify them individuallyfor the particularduties they are to
perform with respectto thisAgreement (the"Services"),and that theTOWN has,and shallhave, and, lo .
the extentapplicable,its employees,
agents,and subcontractorshave, and shallhave throughoutthe term of
this Agreement, all required authorization(s), license(s),
registration(s), or permit(s) (hereinaher
collectivelyreferredtoas a "License")required by State,COUNTY, or localauthorities
forthe Services.
The TOWN shallforward to theDEPARTMENT a copy of its License
or, if a complete
applicable, listof
its employees,agents,and
subcontractors providing Services,including names, area of License, License numbers, and copies of
License(s). The TOWN shallfurnish the DEPARTMENT with copies of any updates,additions, or
deletionsto such listas thesame may occur,together withcopies of any new or renewal License(s).The
TOWN shallimmediately notify theDEPARTMENT, in writing,ofany proceedings
disciplinary against
the holder of any License.In the event thatthe TOWN or such other holderof a License isno longer
licensedfor any one or moreof theServices,the TOWN shallimmediately so notifythe DBPARTMENT.
11. Offset ofArrears orDefault: The TOWN warrants thatit and shall
is not, not be duringthe term
of thisAgreement, ht arrears
to theCOUNTY fortaxes or upondebt or contract
and thatit is not,
and shall
not be duringthe term ofthisAgreement, indefaultas surety,
contractor,orotherwise on any obligationto
the COUNTY. The COUNTY may withhold the amount of any such arrearage or defaultfrom amounts
payable tothe TOWN under thisAgreement.
12. Termination: In the event that the COUNTY, by legislationor writtenagreement, assumes
responsibilityforthe maintenance ofthe Devices, thisAgreement shall automaticallybe nulland void and
of no furtherconsequence during the periodofsuch assumption by the COUNTY.
13. fndçpemient Contrnetor: The TOWN is not,
and shallnever be, considered an employee of the
County forany purpose. Notwithstanding anythingcontained inthis Agreement, the Agreement shallnot
be construed as creatinga principal-agent
relationshipbetween the County and the TOWN or theTOWN
and the County, as the case maybe.
14, Severnbiltiv: Itis expressly agreed that ifany term or provision of this Agreement, or the
applicationthereofto any person or circumstance,shallbe heldinvalidor unenforceableto any extent,the
remainder of theAgreement, or theapplicationofsuch term or provisiontopersons or circumstancesother
than those as towhich itisheld invalidor unenforceable,shallnot be affected thereby,and every other
term and provision ofthe Agreement shall be validand shallbe enforcedto thefullestextentpermittedby
law,
15. Mergert No Orni Changes: It is expresslyagreed that thisAgreement represents the entire
agreement of thepartiesand thatallprevious understandingsare herein merged in the Agreement. No
modification of the Agreementshallbe validunlessin writtenfonn and executed by bothparties.
16. Governing Law: The Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard toconflict of laws.Venue shall be designated in the
Supreme Court, SuffolkCounty, the United StatesDistrict
Court fortheBastem District
of New York, or,
a court
if appropriate, ofinferiorjurisdiction
in SuffolkCounty.
PLAINTIFPS
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FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022
. * Town of Southold with County Of Suffolk Antoemunt Location: CR 48, Middic
Road @ Depot Lane, Cutchogue
1,aw Dept. No._
As Revised 10/21/14
17. No Watver; Itshallnot be construedthat any failureorforbearance ofthe County toenforce any
provision of the Agreement in any particularinstance or instancesis a waiver of thatprovision. Such
provision shallotherwiseremain in full
forceand effect,notwithstandingany such failureor forbearance.
18. Notice: Unless otherwise expressly provided, noticesshall be in writing and shall be deemed
sufficientlygiven if sent by regular firstclassmail and codified mail,or personally delivered during
business hours as follows: 1.)to the TOWN atthe address on page 1 of theAgreement and 2.)to the
COUNTY atthe Department, or as toeitherof theforegoing, tosuch other address asthe addressee shall
have indicatedby prior writtennoticeto the addressor,
19. Convright:
A. The TOWN hereby represents and warrants that itwill not infringe upon any copyright in
performing the Services. The TOWN agreesthatit shall
protect,indemnify, and hold harmless the
COUNTY, itsagents, servants, and
officials, employees from and against all fines,
liabilities,
penalties,actions, damages, claims, demands, judgments, losses,suits or actions,costs, and
expenses arisingout of any claim assertedforinfringement of copyright,includingreimbursement
of thecost of attorneys'fees its
reasonable incurred by theCOUNTY, agents,servants,officials,
and employees inany action or proceeding arisingoutof or in connectionwith any claim asserted
forinfringement of copyright.
B. The TOWN shall defend the COUNTY, itsagents, servants,officials,and employees in any
proceeding or action, includitigappeals,arising out of, or in connection with any copyright
infringement proceeding or action. Alternatively,at theCOUNTY's option,the COUNTY may
or attorneys'
defend any such proceeding action and requirethe TOWN to pay reasonable feesor
salarycostsof County employees of the Department ofLaw forthe defense ofany such suit.
- Balanceof Page Intentionally
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PLAINTIFFS
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Preview
FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022 "R" EXHIBIT FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022 RESOLUTION2015-146 ADOPTED DOC ID: 10521 . THIS IS TO CERTIFY THAT THE F OLL OWING RESOLUTION NO. 2015-146 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON FEBRUARY 10, 2015: RESOLVED that theTown Board of theTown of Southold hereby authorizes and directs Supervisor Scott A. Russell to execute the Agreement for theInstallation ofTraffic Control Devices between the County of Suffolk and the Town of Southold for the installationand maintenance of trafficdevices at CR 48, Middle Road @ Depot Lane, Cutch6gue, subject tothe approval of theTown Attorney. Elizabeth A. NeviUe Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Jarnes Dinizio Jr,Councilman SECONDER: Louisa P. Bvans, Justice AYES: Ohosio, Dinizio Jr, Rulançl, Doherty, Evans, Russell PLAINTIFF'S .EXHIBIT FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022 Town of Southold with County 0f suffolk Agrcoment I.ocrition: CR 48, Middto Road @ Depot Lane, Cutchogue Law Dept. No. As Revised 10/11/I4 . 0RIGINAL AGREEMENT FOR THE INSTALLATION OF TRAFFIC CONTROL DEVICES This AGREEMENT is betweenthe County of Suffolk("COUNTY"), a munfolpal coÆoration of the Stateof New York, having its. principal officeatthe County Center, Riverhead,New York 11901, acting through itsduly constituted Department of Public Works (the ''DEPARTMENT") located at335 Yaphank Avenue, Yaphank, Now York Il980.9744, and the Town ofSouthold (the"TOWN"), havingits . office principal at: 53095Main Road, PO Box 1179, Southold, NY 11971 The partiestothisAgreement desireto provideforthe installation and maintenance of Devicesat a locationwithin the TOWN forthe improvement of traffic conditions,in accordance with a traffic signal plan on lile with the DEPARTMENT. TERMS AND CONDITIONS: Shallbe as set forth inArticlesL TERM: The Term of thisAgreement shallbe in perpetuity,commencing upon the lastdateset forthbelow. The Term shallcontinueuntilterminatedin accordancewith the provisionsofthisAgreement. IN WITNESS WHEREOF, the parties hereto have executed thisAgreement as of thelatestdate written below: TOWN OF SOUTHOLD COUN OF SUFFOLK By: By: Name: TTARTJS ELL Date: Name: Date: Supervisor or Designee n ge toroby certifies under penalties of PLAINTIFPS perjury that that I arnan officer of the Town of Southold. EXHIBIT that I havoread and am familiar with sco.A5-7 of Article V of the Suffolk Coun odo, and that the Town of Southold meetsall requirem to qualifyexemption thereunder. Name Date O APPROVED AS TO FORM: APPROVED: COUNTY OF SUFFOLK DEPAl? F PUBLIC WORKS DENNIS M. BROWN y: Suffolk County Attorney . By: Name: PhillA. Berdolt D Commisesoner 6 County DPW f ff f a tr Title: D EN BRADDISH Date: Date: t AssistantCounty Attorney - I - IElMiltEMÈI 00'417Ill 58 FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022 Town of Southold with County O'Suffolk Road @ Depot Lane, Cutchogue Agreement Locatiom CR 48, Middle Law Dept.No._ As Revised 10/21/14 EXHIBIT A WHEREAS, the DEPARTMENT operatesa program to improve trafficsignals, markings, signs, flashing beacons, associated appurtenances and the like in orderto ensure the safe and continuous movement of and traffic, WHEREAS, the DEPARTMENT has determined that certainDevices are necessary at the intersectionof CR 48, Middle Road @ Depot Lane, Cutchogue for the Improvement of traffic conditionsat that focation withinthe TOWN, and the TOWN acceptssaiddetermination,and WHEREAS, pursuant toSection 136 ofthe New York StateHighway Law, the Commissioner of the Suffolk County Department of PublicWorks ("Commissioner") isempowered to erectDevices, as authorizedby the County Legislature,in orderto improvetraffic conditions,and WHEREAS, pursuant to Section1652-b of the Vehicleand TrafficLaw, the County is authorized to install trafficsignals,provided thatthey areadequately supported by a request and investigation,and thatthe governing body withjurisdictionover thehighway, road,or streetentersinto an agreement with the County regardingthe erectionand maintenance ofthe signal;and WHEREAS, the partiesheretodesireto provide fortheinstallation and maintenance ofDevices at the aforesaidlocationwithin the TOWN forthe improvement of traffle conditions, inaccordance with a trailic signalplan on filewiththe DEPARTMENT: NOW, THEREFORE, inconsideration of the individualand mutual covenants,promises, and herein representations contained, thepartiesheretoagree as follows: 1. polinitions: The following tenns, whenever used in this Agreement, shallhave thefollowing meaning: Devices: Traffic signals,markings, signs,flashing beacons, associated appurtenances,and the like. Permit Applicant: The entity a Device installing under a Suffolk County Highway Work Permit using a designapproved by the Department. 7¥afficSignal ServiceReport: A reportof any and allwork performed on the Devices. 2. Design pnti Installation: The COUNTY shall,upon consultation with theTown regarding the engineering and design of theDevices, at install, the expense of the Permit Applicant or through the COUNTY'S Capital orOperating Budget, Devices at the location set forth above. 3. Ownership: A. Any and allDevices installedpursuant to thisAgreement shallbe the soleand exclusive property of the TOWN. B. Any'Devices removed from the designated site(s) herein shall be delivered to either the DEPARTMENT or the TOWN, as directed by theCommissioner. PLAINTlFFS - 2- EXHIBIT FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022 .. . .. . Town of Southold whh County Of Suffolk Aercement Locallon: CR 48, Middle Road @ Depot Lane, Cutchogue Law Dept.No._ As Revised 10/2I/14 4. Operation nm) Maintenance: A. All costs incurred in the operation and maintenance of the Devices after installation of the Device(s),including anyand allcharges for shall electricity, be bome bythe TOWN or,in thecase of a Permit Signal,the Permit Applicant,untilsuch time for as responsibility theoperation and maintenance of the Devicesis assumed by the TOWN. B. At such time as responsibility for the operation and maintenance ofthe Devices is assumedby the TOWN, the TOWN shalloperateand maintain the Devices inaccordance with the current(as of the date of assumption) Maintenance Specifications of the DEPARTMENT. A copy of said specifications is andwillbe availableupon requestat the DEPARTMENT. C. In the event thatthe TOWN has a set ofMaintenance Specificationsequivalent to thatof the DEPARTMENT, the TOWN may, subject to the review and approval of same by the DEPARTMENT, use same in lieu of the DEPARTMENT'S Maintenance Specifications. D. In connectionwith Its maintenanceof theDevices, the TOWN shallprovide theCOUNTY with a Traffic Signal Service Report whenever and wherever a maintenance problem exists which preventsthe devicefrom operatingas designed. E. The TOWN shallkeep all localpoliceauthorities aware of the partyresponsiblefor maintenance of the Devices. The TOWN shall establishprocedures thatwill allow maintenance contractors and/orTOWN employees to providemaintenance servicesfor the Deviceson a 24-hour basis. 5. Modlilcation of Doylces: The TOWN shallnot alter the signaloperation or timingof the Devices without the priorwritten approval of theDEPARTMENT. In theevent of any to alteration the signal operationor timingof the Devices,the TOWN shallfbmish theDEPARTMENT withone (1) set of wiring diagrams foreach alteration. 6. Representations nnd Warranties; A. The TOWN shallenact any ordinance,order,nile,or regulationnecessaryfor the installation and maintenance of theDevices. B. The TOWN shallcomply, and shallrequire Its directors, officers, partners,trustees,and other members of itsgoverning body, as wellas any personnel employed torender servicesunder this Agreement, to comply with allapplicable rules, regulations,and requirements of law, including SutTolk localpreferencelaws and otherapplicableSuffolk locallaws, and reso- Coimty County lutionsofthe Suffolk County Legislature. C. The TOWN shallmaintain fulland complete books and recordsof any and allTraffic Signal Service Reports.Such books and records shallbe retainedfora periodof seven (7)yearsand shall be availablefor inspection by theDEPARTMENT, orits duly designatedrepresentative,upon writtennotice,during regularbusinesshours. D. The COUNTY agreesto transferany and allwarrantiesand representationson allequipment and materialsinstalledby the COUNTY or its permittees to the TOWN. PLAINTIFPS EXHiBIT -3- .- b 9 C I FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022 Town of Southold with Cotmty Of Suffolk Aercement 1.ocation:CR 48, Middle Road @ Depot Lane, Cutchogue . Law Dept No,_... As Revised 10/2t/14 7. Violation A. In theevent that theTOWN failstomaintain the Devices in accordance with the terms ofthis Agreement, theCOUNTY, inaddition toany other remedies to which itmay be entitled,may withhold fundsfor any or all traffic improvements within the TOWN. B, The COUNTY shallprovide the TOWN with writtennoticeof the TOWN'S failureto maintain the Devices. Such notice shall specifythe particularfailure.The TOWN shall be given a reasonableperiod oftime tocorrectany saidfailure. 8. Insurance A. The TOWN shallprocure,pay the entire premium for,and maintain insurance in cotmectionwith the operationsand maintenance performed under thisAgreement, inamounts and types specified by theCOUNTY. The TOWN agrees torequireallof itssubcontractorsin connectionwith work performed for theTOWN relatedto thisAgreement, procure, pay the entirepremium for,and maintainthroughout the term of thisAgreement, insurancein amounts and types equal tothat specifiedby theCOUNTY for the TOWN. Unless otherwise specified by the COUNTY and agreed to by the TOWN, in writing, such insuranceshallbe as follows: i COMMERCIAL GENERAL LIABILITY INSURANCE, including contractual coverage, in an amount not less than TWO MILLION AND NO/100THS ($2,000,000.00) DOLLARS per occurrence for bodily injury and TWO MILLION AND NO/100THS ($2,000,000.00)DOLLARS per occurrence forpropertydamage. il.AUTOMOBILE LIABILITY INSURANCE, (ifany vehiclesare usedby the TOWN in the performance of this Agreement includingowned, non-owned, and hiredcars)in an amount not lessthan Five Hundred Thousand Dollars(S500,000) per person, per accident, for bodily injury and not less than One Hundred Thousand Dollars ($100,000) forpropertydamage peroccurrence. iii. WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE, in compliance with all applicable New York State laws and regulations and DISABILITY BENEFITS INSURANCE, if required by law. The TOWN shall furnishto the COUNTY, priorto itsexecution ofthe Agreement, thedocumentation required the New Workers' by Stateof York Compensation Board of coverage or exemption from to Workers' coverage pursuant §§57 and 220 of the Compensation Law. in accordance with GeneralMunicipal Law § 108, thisAgreement shallbe void and of no effectunless theTOWN shall provide and maintain coverage during the term ofthisAgreement forthe benefitof suchemployees as are required to be covered Workers' by the provisions of the Compensation Law. iv.In the event the TOWN maintainsa COMPREHENSlVE GENERAL LIABILITY INSURANCE policy form in lieuof Commercial General said Liability, policymust include all of the above requirements plus premises/operations,independent contractors, contractual,andbroad fonn propetty damage. B. All policiesproviding such coverage shallbe issued by insurance companies with an A.M. Best of A- or better. All insuranceshallbe obtainedfrom cornpanieslicensedto do businessin the rating State ofNew York. PLAINTlFFS EXHtBIT FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022 Town of Southold with County Of Suffolk Arrecrnent Location: CR 48, Middle Road @ Depot Lane, Cutchogne . Law Dept. No...... As Revised 10/21/14 C. The County of Suffolkmust be named AdditionalInsured,and the TOWN shallfurnishannuallyto the COUNTY, a declarationpage foreach such policy of insurance,and upon request,a trueand certifiedoriginalcopy ofcach such policy,evidencing compliance with the aforesaidinsurance requirements. Inthe case ofcommercial general insurance, liability the County ofSuffolk shallbe named as an additional insured and the TOWN shallfurnish a Declarationpage and endorsement page evidencing the County's statusas an additional insuredon saidpolicy. Where work under this agreement is sub-contracted, the TOWN must require the subcontractor to provide thatthe COUNTY be named as an additional insured on all required as policies, well as require the subcontractor to providethe COUNTY with allrequiredevidence of insurance. D. All such Declaration Pages, and certificates, other evidence of insurance shallprovide forthe County ofSuffolk to be notifiedinwritingthirty(30) days priorto anycancellation,non-renewal, or materialchange in saidpolicies. Required limitsofinsuranceare notto be modifiedby deductibles thatthe COUNTY deems excessivewithout the COUNTY'S writtenpermission.Allsuch Declaration Pages, policies certificates, and otherevidence of insurance and notices shallbe mailed tothe DEPARTMENT and to the Suffolk County Risk Management and Benefit Division at 700 Veterans Memorial Highway, 2nd Floor, Hauppauge, New York l 1788,or such other address of which the COUNTY shallhave given the TOWN writtennotice. E. ifthe TOWN, as a municipalcomoration, has a self insurance program under which itacts as a self insurer forany such requiredcoverage, it may provide self-fundedcoverage. Declarations and or eettificates, other evidence of such self-insurancein lieu of insurance issued by insurance companies shallbe provided priorto the commencement of thisAgreement and shallcontinueto serve as evidenceof such self-ftmdedcoverage until such time thatthe TOWN ceases tobe self-insured. In the eventthat the TOWN ceases tobe self-insured, the TOWN shallimmediately comply withthe provisionsof subsections A through D under thisSection 8 and provide DeclarationsPages with fifteen (15) days ofceasingto be self-Insured. F. In the eventtheTOWN failstoprovide theDeclarationPages or of certificates insurance,or fails to maintain any insurancerequiredby thisAgreement, the COUNTY may, butshallnot be requiredto, obtainsuch policiesand deduct the cost thereoffrom payments due the TOWN under thisAgreement or anyother Agreement between the COUNTY and the TOWN. G. The COUNTY will not authorizework to beginunder thisAgreement untilallthe required insurance has been obtainedand saidinsurance has been approvedand filedby the COUNTY. Approval ofthe insurance by the County shallnot relieveordecrease the of liability the TOWN. The TOWN shall assume all for responsibility the insurancerequirementsofany applicablesub-consultants. 9. Indemnification; To the greatestextentpermittedby law,the TOWN agrees thatitshallprotect, indemnify, and hold harmless theCounty and itsofficers, officials, employees, contractors,agents, and otherpersons (the "County Indemnified Parties")from and againstall liabilities, fmes, penalties,actions, attomeys' damages, claims, demands, judgments, losses,costs,expenses,suits,or actionsand reasonable fees,arisingout ofthe actsor omissionsor the negligenceof theTOWN, its officers, officials, eniployees, contractors,and agents in connection with the servicesdescribed or referredto inthis Agreement. The TOWN shalldefend the County inany suit,includingappeals, orat the County's option,pay reasonable attomey's feesfordefense of any suchsuitarisingout or omissions of the acts or negligence ofthe TOWN, its officers, officials, employees, subcontractors,or agents,if any, inconnection with the services described or referred to in this Agreement. PLAINTIF FS EXHIBIT I 2se &J FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022 Town or Southold with County Of Suffolk Aurcement Locadon: CR 48, Middle Road @ Depot Lane, Culchogue Law Dept. No._ As Revised 10/21/14 10. Licenses: The TOWN covenants, warrants,and representsthat Ithas,and shallhave throughout the tenn of thisAgreement, and that,tothe extentapplicable,itsemployees, agents,and subcontractors have, and shall have throughout the tenn of thisAgreement, the required education, knowledge, experience, and character necessary to qualify them individuallyfor the particularduties they are to perform with respectto thisAgreement (the"Services"),and that theTOWN has,and shallhave, and, lo . the extentapplicable,its employees, agents,and subcontractorshave, and shallhave throughoutthe term of this Agreement, all required authorization(s), license(s), registration(s), or permit(s) (hereinaher collectivelyreferredtoas a "License")required by State,COUNTY, or localauthorities forthe Services. The TOWN shallforward to theDEPARTMENT a copy of its License or, if a complete applicable, listof its employees,agents,and subcontractors providing Services,including names, area of License, License numbers, and copies of License(s). The TOWN shallfurnish the DEPARTMENT with copies of any updates,additions, or deletionsto such listas thesame may occur,together withcopies of any new or renewal License(s).The TOWN shallimmediately notify theDEPARTMENT, in writing,ofany proceedings disciplinary against the holder of any License.In the event thatthe TOWN or such other holderof a License isno longer licensedfor any one or moreof theServices,the TOWN shallimmediately so notifythe DBPARTMENT. 11. Offset ofArrears orDefault: The TOWN warrants thatit and shall is not, not be duringthe term of thisAgreement, ht arrears to theCOUNTY fortaxes or upondebt or contract and thatit is not, and shall not be duringthe term ofthisAgreement, indefaultas surety, contractor,orotherwise on any obligationto the COUNTY. The COUNTY may withhold the amount of any such arrearage or defaultfrom amounts payable tothe TOWN under thisAgreement. 12. Termination: In the event that the COUNTY, by legislationor writtenagreement, assumes responsibilityforthe maintenance ofthe Devices, thisAgreement shall automaticallybe nulland void and of no furtherconsequence during the periodofsuch assumption by the COUNTY. 13. fndçpemient Contrnetor: The TOWN is not, and shallnever be, considered an employee of the County forany purpose. Notwithstanding anythingcontained inthis Agreement, the Agreement shallnot be construed as creatinga principal-agent relationshipbetween the County and the TOWN or theTOWN and the County, as the case maybe. 14, Severnbiltiv: Itis expressly agreed that ifany term or provision of this Agreement, or the applicationthereofto any person or circumstance,shallbe heldinvalidor unenforceableto any extent,the remainder of theAgreement, or theapplicationofsuch term or provisiontopersons or circumstancesother than those as towhich itisheld invalidor unenforceable,shallnot be affected thereby,and every other term and provision ofthe Agreement shall be validand shallbe enforcedto thefullestextentpermittedby law, 15. Mergert No Orni Changes: It is expresslyagreed that thisAgreement represents the entire agreement of thepartiesand thatallprevious understandingsare herein merged in the Agreement. No modification of the Agreementshallbe validunlessin writtenfonn and executed by bothparties. 16. Governing Law: The Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard toconflict of laws.Venue shall be designated in the Supreme Court, SuffolkCounty, the United StatesDistrict Court fortheBastem District of New York, or, a court if appropriate, ofinferiorjurisdiction in SuffolkCounty. PLAINTIFPS EXHlBIT 2.M 4 b - 6. N FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1276 RECEIVED NYSCEF: 12/16/2022 . * Town of Southold with County Of Suffolk Antoemunt Location: CR 48, Middic Road @ Depot Lane, Cutchogue 1,aw Dept. No._ As Revised 10/21/14 17. No Watver; Itshallnot be construedthat any failureorforbearance ofthe County toenforce any provision of the Agreement in any particularinstance or instancesis a waiver of thatprovision. Such provision shallotherwiseremain in full forceand effect,notwithstandingany such failureor forbearance. 18. Notice: Unless otherwise expressly provided, noticesshall be in writing and shall be deemed sufficientlygiven if sent by regular firstclassmail and codified mail,or personally delivered during business hours as follows: 1.)to the TOWN atthe address on page 1 of theAgreement and 2.)to the COUNTY atthe Department, or as toeitherof theforegoing, tosuch other address asthe addressee shall have indicatedby prior writtennoticeto the addressor, 19. Convright: A. The TOWN hereby represents and warrants that itwill not infringe upon any copyright in performing the Services. The TOWN agreesthatit shall protect,indemnify, and hold harmless the COUNTY, itsagents, servants, and officials, employees from and against all fines, liabilities, penalties,actions, damages, claims, demands, judgments, losses,suits or actions,costs, and expenses arisingout of any claim assertedforinfringement of copyright,includingreimbursement of thecost of attorneys'fees its reasonable incurred by theCOUNTY, agents,servants,officials, and employees inany action or proceeding arisingoutof or in connectionwith any claim asserted forinfringement of copyright. B. The TOWN shall defend the COUNTY, itsagents, servants,officials,and employees in any proceeding or action, includitigappeals,arising out of, or in connection with any copyright infringement proceeding or action. Alternatively,at theCOUNTY's option,the COUNTY may or attorneys' defend any such proceeding action and requirethe TOWN to pay reasonable feesor salarycostsof County employees of the Department ofLaw forthe defense ofany such suit. - Balanceof Page Intentionally Left Blank - PLAINTIFFS EXHlBIT