(i) SCA must be committed to involving the community at large in the design process for the Schoolyard Improvements;

Transcription

1 AGREEMENT made the of, 2017, among the New York City Department of Education ( DOE ) having an address at 52 Chambers Street, New York, NY 10007; the New York City School Construction Authority ( SCA ), having an address at Thomson Ave, Long Island City, NY 11101, and the New York City (the City ) Department of Parks & Recreation ( Parks ), having an address at The Arsenal, 830 Fifth Avenue, New York, New York, (collectively the Parties ). WHEREAS, DOE, SCA, and Parks wish to pursue and support a collaborative program to improve up to ten (10) existing DOE Schoolyards adjacent to DOE schools (the Sites ) in order to serve better the recreational and open space needs of both schoolchildren and the public at large as part of the City s OneNYC Walk to a Park Initiative; WHEREAS, SCA will design such improvements in coordination with Parks and the local community; WHEREAS, SCA has agreed to design and construct such improvements (the Schoolyard Improvements ) and Parks will fund the design and construction of the Schoolyard Improvements (the Allocated Funding ); and WHEREAS, Parks has agreed to provide the Allocated Funding so long as SCA agrees that the Sites will be open to the public when they are not otherwise in use by DOE for school activities, along with the other terms and conditions contained herein. NOW, THEREFORE, the parties hereto agree as follows: 1. Site Selection. Parks, in consultation with DOE and SCA, will have the option to select up to a total ten (10) Sites for the Schoolyard Improvements. At present, Parks, DOE, and SCA have already selected five (5) Sites and a list of those selected Sites is attached hereto as Exhibit A. Parks shall select the remaining five (5) Sites by October 31, 2017, in consultation with DOE and SCA, based on criteria consistent with the OneNYC Walk to a Park Initiative, which shall include but not be limited to, the following conditions: (i) SCA must be committed to involving the community at large in the design process for the Schoolyard Improvements; (ii) DOE must have a commitment to extensive public access to the Site during times when the Site is not otherwise in use for school-related activities, as set forth in this Agreement; and (iii) Selected Sites must be approved by all Parties. (iv) If at a future date the Parties identify and agree on additional schoolyards to include as part of the City s OneNYC Walk to a Park Initiative, then those schoolyards may be added to this Agreement by amending Exhibit A (List of Sites) of this Agreement; provided that for any such additional schoolyard site(s) the Parties will be subject to the same terms and conditions, including funding obligations, contained in this Agreement, except that any deadlines for final completion of improvements for such additional schoolyards which will be mutually

2 agreed upon by the Parties. 2. Design. (a) SCA shall establish and implement a viable participatory design process for the Schoolyard Improvements, acceptable to the DOE and Parks, prior to Parks final approval of bid initiation; (b) The plans and specifications for each Site shall be subject to the approval of Parks, provided that such approval will not be unreasonably withheld. Parks shall use its best efforts to approve or reject such plans and specifications within thirty (30) days after their submission to Parks. Parks shall provide SCA s design team with specific and detailed explanations of any rejection, and shall work with the SCA design team to resolve design issues. In the event that Parks does not approve the plans and specifications for a Site within thirty (30) days, then Parks shall extend the SCA s deadline for final completion of the Schoolyard Improvements for that Site by the number of days between the expiration of such thirty (30) day period and Parks approval of the Site s final plans and specifications. 3. Funding. (a) Parks will ensure that funding is available to the SCA for the selected projects from its budget (hereinafter referred to as Allocated Funds ). Parks will coordinate with OMB to transfer the Allocated Funds in the City s Financial Management System ( FMS ) through a transfer of the managing agency to DOE agency code 040 and encumbrance through the New York City Department of Education prior to the SCA issuing a bid award for the projects. Upon the availability of the Allocated Funds in FMS, completed through a transfer of the managing agency to DOE agency code 040 and encumbrance through the New York City Department of Education, the SCA will submit a request for a Certificate to Proceed ( CP ) to Parks for the selected sites, and Parks shall have one (1) week to review and share comments on the CP request. The SCA will then submit the CP request to OMB for the Schoolyard Improvements and the SCA will also forward Parks a final copy of the CP request made to OMB in accordance with the notice provisions set forth in Section 10 below. (b) The Parties understand and agree the total cost for the Schoolyard Improvements shall not exceed $3,000,000 for each Site and all Sites shall be scoped, designed, and constructed in a manner not to exceed this amount. Notwithstanding the above, Schoolyard Improvements may exceed a cost of $3,000,000 for a Site upon the mutual agreement of the Parties and Parks agreement to fund the additional amount. (c) In the event that one or more of the Sites costs less than $3,000,000 per Site, then Parks may elect to allocate the remaining Allocated Funds to other Sites, or the Parties may agree to identify and designate additional Sites to be included as part of this Agreement. Alternatively, at Parks discretion, Parks may direct that any remaining Allocated Funds be returned to Parks. (d) If, at any time, SCA believes that the budgeted amount available for a Site is insufficient to cover the cost of the Schoolyard Improvement, then SCA shall so notify Parks and DOE; and 2

3 Parks shall either (i) ensure that sufficient funds are made available for completion of the Schoolyard Improvements or (ii) work with SCA and DOE to scale down the scope of the Schoolyard Improvements to meet the existing budget for that Site. 4. Construction. (a) SCA shall ensure that each Site will be constructed in a good workmanlike manner, free of defects, and delivered to DOE in good working order and condition. (b) SCA agrees to obtain warranties on all Schoolyard Improvements as are customarily provided by manufacturers in connection with such improvements. (c) SCA shall notify Parks when it believes construction of a Site has achieved final completion. Thereafter, SCA and Parks shall perform a joint inspection of the Site. If SCA, in consultation with Parks, determines that a Site has been finally completed, then SCA and/or its architect of record shall issue a notice of final completion. If SCA, in consultation with Parks determines that a Site has not been finally completed, then SCA, in consultation with Parks, shall issue a notice setting forth the reasons that construction has not reached final completion. Such notice shall include a punch list of items remaining to be completed or work that needs to be corrected. (d) SCA shall make its best effort to complete projects by June 30, 2020, and will remit to Parks any unspent or unaccounted for Allocated Funds upon project completion. If SCA cannot complete any project by June 30, 2020, SCA shall keep allocated funds until final completion to pay for work, change orders, and other costs associated with Site Improvements. Notwithstanding the above, if at any time prior to the commencement of construction of a Site, SCA reasonably anticipates that it will not be able to achieve final completion of a Site by June 30, 2020, then SCA shall consult with Parks before commencing such construction. Where SCA has already commenced construction on a Site, but will not be able to achieve final completion of the Site by June 30, 2020, then SCA shall so notify Parks as soon as SCA learns of such circumstances. SCA s written notice shall include a description of the condition or event, its cause and probable duration (if known to SCA), and, in SCA s reasonable judgment, the impact it is reasonably anticipated to have on the completion of the work. If SCA so notifies Parks of such delay then, upon cessation of such circumstances, SCA shall work diligently to complete the work necessary to finally complete the Schoolyard Improvements. (e) To secure SCA s obligation to achieve final completion of the Schoolyard Improvements, prior to the commencement of construction of the Schoolyard Improvements for a Site, SCA shall require its contractor to post performance and payment bonds for the benefit of the SCA, issued by a surety company licensed to do business in the State of New York (the Bonds ). The Bonds shall be in an amount equivalent to one hundred (100%) percent of the bid price submitted by the SCA s general contractor. 3

4 5. Use and Hours of Public Access for Completed Sites. (a) As a condition of DOE receiving (i) dedicated funding to cover the costs associated with the Sites extended hours, and (ii) the Schoolyard Improvements, for a minimum period of twenty (20) years from the final completion of the Schoolyard Improvements for each Site, DOE shall use best efforts to open the Site to the public at large, subject to DOE rules and regulations, when each Site is not otherwise in use by DOE for official school-related activities. More specifically, DOE shall use reasonable efforts to ensure that the Sites are, at a minimum, open to the public as follows: (i) On days when school is in session, and when each Site is not otherwise in use by DOE for official school-related activities or other after school activities, permitted by DOE or the principal, subject to DOE rules and regulations, the Sites shall be open to the public from school closing until dusk. (ii) On days when school is not in session (including weekends, academic holidays, and summer recess), and when each Site is not otherwise in use by DOE for official schoolrelated activities, the Sites shall be open to the public from 8:00 a.m. until dusk. (iii) DOE shall be responsible for opening and closing the Sites (i.e. unlocking and opening any gates or other securable entrances to the Sites in the morning and locking and securing such gates or entrances in the evening) in accordance with the hours and days set forth in 5(a)(i) and 5(a)(ii) above. (iv) The Parties acknowledge that when the Sites are open to the public, they will be unsupervised, and neither Parks nor DOE shall be responsible for providing personnel for security or other oversight at the Sites. (b) DOE shall use best efforts not to construct a school addition or temporary classroom unit ( TCU ) on any Site for a minimum period of ten (10) years from the final completion of the Schoolyard Improvements for each Site. Thereafter, if DOE decides to construct a school addition or TCU at a Site, then DOE shall consult with Parks to select a location that will minimize the impact of such addition on the Schoolyard Improvements; however, SCA shall have the final authority to determine location, in consultation with DOE and Parks. (c) If DOE needs to use a portion of a Site for the construction of an addition or other structure, staging, or emergency repair work, then DOE shall consult with Parks as soon as is practicable so as to ensure that such construction staging or emergency repair work minimizes the impact of such work or staging on the Schoolyard Improvements and also minimizes the amount of time necessary to complete such projects; however SCA shall have the final determination over the ultimate location of such work. (d) In the event that the DOE and/or SCA uses a portion of the Site for purposes of a TCU, construction staging, or emergency repair work, then upon removal of any temporary structures or staging equipment, DOE, at DOE s cost, shall promptly restore the impacted portion of the Site to its as-was condition, subject to the availability of funding. 4

5 (e) If there is any use or activity on a Site that Parks determines is not consistent with the purpose and provisions of this Agreement, Parks will notify the DOE, and the DOE shall take appropriate actions to address such use or activity. 6. Maintenance. DOE shall remain responsible for the Sites maintenance, including any increased maintenance required as a result of the extended hours and access as set forth in Section 5 above. The Parties acknowledge that, as part of the City s PlaNYC Schoolyards to Playgrounds Initiative, DOE will receive dedicated funding to be used to cover the costs associated with the Sites extended hours, and DOE agrees that such dedicated funds will only be used for personnel costs incurred to keep the Sites open during the extended hours, and basic maintenance costs (including repairs and replacements) to the extent dedicated funding is available. Where DOE does not have funding (dedicated or otherwise) to cover any necessary repair or replacement costs, or if a Site needs to be closed to the public, then DOE will notify Parks. DOE agrees that it will submit a summary of annual expenditures for the prior year to Parks of how the dedicated funding was spent during the previous year at each Site, including basic information on each Site and total hours of public access. 7. Signage. As a condition of final completion of each Site, SCA shall erect signage on each of the Sites indicating that the Site is a joint project between DOE and Parks. The signage shall prominently display that the Site is open to the public and the public access hours. Such signage shall be consistent with that typically used by the DOE in its facilities and shall be subject to approval of DOE and Parks, which approvals shall not be unreasonably withheld. 8. Publicity. In any statement, report, press release or other public communication announcing the project, the parties agree to refer to the project as a joint project between DOE, SCA, and Parks. Any press release or other public statement by Parks announcing the program or specific school projects must be received by DOE and SCA for consent at least ten (10) business days prior to the date on which Parks desires to use such release or statement, provided that the consent of the other parties shall not be unreasonably withheld or delayed. If either party had not responded to the request for consent within 15 business days of receipt then the requesting party shall resubmit such request. If such second request has not been responded to within 5 days of receipt, then such press release shall be deemed approved. 9. Term and Termination. This agreement may be terminated by any party for any reason, upon sixty (60) days written notice. In the event that this Agreement is so terminated, then SCA s contractors shall continue to perform the work on any Schoolyard Improvements then in progress until SCA and/or its architect of record issues a certificate of final completion as set forth in Section 4(c) above, and the terms and conditions contained in this Agreement shall, nevertheless, remain in full force and effect with respect to Schoolyard Improvements that have been finally completed. 10. Notices. Notices, if required under this Agreement, must be sent in writing by , courier, first class mail or trackable overnight courier to the appropriate contact persons listed below, and are considered made when received at that address. 5

6 All notices hereunder for DOE shall be directed to: New York City Department of Education Division of School Facilities Vernon Boulevard Long Island City, NY Attn: John Shea, Chief Executive Officer With a copy to: New York City Department of Education Office of the General Counsel 52 Chambers Street, Room 308 New York, NY Attn: Commercial Unit All notices hereunder for SCA shall be directed to: New York City School Construction Authority Thomson Avenue Long Island City, NY Attn: Ross J. Holden, Executive Vice President & General Counsel All notices hereunder for Parks shall be directed to: New York City Department of Parks & Recreation The Arsenal 830 5th Avenue New York, NY Attn: Chief of Parklands and Real Estate With a copy to: New York City Department of Parks & Recreation The Arsenal 830 5thAvenue New York, NY Attn: General Counsel or to such other addresses and contacts as a Party may from time to time designate in the manner set forth above. 11. Third Party Beneficiary. This Agreement shall be binding upon and for the benefit of the parties hereto and each of their respective successors and permitted assigns and no other person or entity shall constitute but one and the same instrument. 12. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original and all of which, together, shall constitute one agreement. 6

7 13. Amendment. This Agreement may only be amended in a writing executed and delivered by all the Parties. 14. Entire Agreement. This Agreement and the attachments hereto contain all the terms and conditions agreed upon by the parties hereto, and no other agreement, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to bind any of the parties hereto or vary any of the terms and conditions contained herein. 7

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11 EXHIBIT A School Name DOE School Code Address PS 54 PS 95 PS 136 PS 177 PS 163 Q054 K095 Q136 K177 K STREET QUEENS, NY VAN SICKLEN STREET BROOKLYN, NY AVENUE QUEENS, NY AVENUE P BROOKLYN, NY BAY 14 th STREET BROOKLYN, NY 11214

12 PS 54 Queens

13 PS 95 Brooklyn

14 PS 136 Queens

15 PS 177 Brooklyn

16 PS 163 Brooklyn