Comparing the updated 2014 Memorandum of Environmental Commitments with its 2009 predecessor

I had planned to publish this Oct. 27, 2014, but never did so. So I'm posting it as of that date, but on Aug. 31, 2026.

As disclosed in the Final Supplemental Environmental Impact Statement (which I wrote about 6/12/14), an Empire State Development (ESD) press release 6/27/14 says the state agency overseeing/shepherding Atlantic Yards has "negotiated more stringent requirements with the developers as part of the Memorandum of Environmental Commitments (MEC)."

Those changes are a response to steady complaints about failures of oversight during the construction of the arena. And while the state claimed oversight was sufficient, it also promised to do better. The changes, according to the press release, include:

• Closer monitoring and oversight of the On-Site Environmental Monitor (“OEM”) staffing, including during off-hour work periods, and a requirement that that OEM be a qualified outside engineering firm or construction management firm consent to by ESD;
• Requirement that the OEM will have substantial construction management experience in New York City and will be located on-site;
• Requirement to include commitments in all site contracts and implementation of remedies for non-compliance, including the right to withhold payment or terminate the contract for non-compliance;
• Stringent new requirements to reduce emissions from diesel-powered construction equipment;
• Strengthening requirement to provide double-glazed windows and ventilation to residents affected by significant construction noise;
• Requirements for Dust Management Plans;
• More stringent noise protocols for construction equipment, including using sound-mitigated back-up alarms

Other changes are noted below.

Comparing the two MECs

In several cases, the Second Amended Memorandum of Environmental Commitments (2014, also here) adds elements not present in the first Amended Memorandum of Environmental Commitments (2009). In other cases, there are more subtle changes.

Below, I try to delineate the changes, with verbatim excerpts and use of bold type. The MECs are also embedded at bottom.

Comparing 2009 and 2014: schools

I've already reported on the change in the plans for the school.

2009: 

It is likely that the School will be located in the lower floors of Building 5 or the first building constructed as part of Phase II.

2014:

It is likely that the School will be located in the lower floors of Building 15; therefore, FCRC shall provide notice to DOE, SCA and ESD that it intends to begin architectural design of Building 15 prior to the commencement of such design.

Comparing 2009 and 2014: open space

The approval of ESD, rather than the Parks Department, is new, though we already know about Times Plaza.

2009:

The initial program and plans for the permanent Open Space and any material modifications shall be subject to the reasonable approval of the Parks Department. The permanent Open Space shall be, at a minimum, accessible to the public as specified in the Design Guidelines.

2014:

The initial program and plans for the Open Space shall be subject to the reasonable approval of ESD, consistent with the DesignGuidelines, and any material modifications to the program and plans for the Open Space shall also be subject to the reasonable approval of ESD, consistent with the Design Guidelines. The permanent Open Space shall be, at a minimum, accessible to the public as specified in the Design Guidelines.

New for 2014:

Subject to the review and approval of the New York City Department of Transportation (“NYCDOT”) and, if applicable, the New York City Public Design Commission (“PDC”), FCRC shall promptly plan, design, implement and fully fund improvements at Times Plaza, which will consist of the addition of seating, plantings and other open space amenities approved by NYCDOT and, if applicable, PDC. If practicable, FCRC shall implement these improvements in coordination with restoration of the adjoining segment of Atlantic Avenue affected by the construction of the portal between the LIRR rail yard and Atlantic Terminal.

Comparing 2009 and 2014: hazardous materials

2009: 

FCRC shall design and construct the Project so as to prevent volatile organic compounds (“VOCs”) from infiltrating the interior of the Project buildings. To address this concern, residential and community facility uses shall be located either above ventilated underground parking or other facilities or above the platform over the ventilated rail yard.

2014:

FCRC shall design and construct the Project so as to prevent volatile organic compounds (“VOCs”) from infiltrating the interior of the Project buildings. To address this concern, residential and community facility uses shall (i) be located above ventilated underground parking or other facilities or above the platform over the ventilated rail yard and/or (ii) incorporate equivalently effective engineering controls, such as a vapor barrier and/or sub-slab depressurization system.

2009:

In the event that the New York City Department of Environmental Protection (“NYCDEP”) exercises jurisdiction over any portion of the environmental remediation at the Project site, FCRC shall (in lieu of the remedial plan called for under Subparagraph G.2(d) above) submit to NYCDEP a remedial action plan with respect to such portion of the environmental remediation, for review and approval in accordance with NYCDEP requirements, prior to or in connection with excavation activities at the Project site. FCRC shall simultaneously submit such remedial action plan to ESDC for its review and consultation with NYCDEP.

2014:

In the event that the New York City Department of Environmental Protection (“NYCDEP”) or the Mayor’s Office of Environmental Remediation (“OER”) exercises jurisdiction over any portion of the environmental remediation at the Project site, FCRC shall (in lieu of the remedial plan called for under Subparagraph G.2(d) above) submit to NYCDEP or OER a remedial action plan with respect to such portion of the environmental remediation, for review and approval in accordance with NYCDEP or OER requirements, as applicable, prior to or in connection with excavation activities at the Project site. FCRC shall simultaneously submit such remedial action plan to ESD for its review and consultation with NYCDEP or OER, as applicable.

Comparing 2009 and 2014: stormwater and sewage minimization measures

2009:

Such measures shall include installation or implementation of the following facilities or alternative detention/retention facilities providing the same or greater combined retention and detention capacity:
...(b) Two storage tanks in the area of the Long Island Rail Road yard, with an aggregate capacity of 124,000 gallons;

2014:

Storage tanks in the area of the Long Island Rail Road yard, with an aggregate capacity of 124,000 gallons;

Comparing 2009 and 2014: sustainable designs and minimization of air emissions

2009:

All Project boilers shall operate exclusively on natural gas and shall be equipped with low nitrogen oxide burners, provided that FCRC may substitute an alternative fuel or technology upon a demonstration to ESDC through appropriate analysis that such alternative fuel and/or technology would achieve equivalent or superior emission levels.

2014

All Project boilers shall operate exclusively on natural gas and shall be equipped with low nitrogen oxide burners (achieving an emissions level less than or equal to 20 ppm),

New for 2014:

4. The heating and hot water equipment exhaust stack(s) on Building 3 will extend at least 259 feet above grade and will be located at least 69 feet away from the lot line facing 6th Avenue and no more than 70 feet away from the lot line facing Dean Street. This requirement may be adjusted if an air dispersion analysis is prepared confirming that such adjustments would not result in any significant adverse air quality impacts.

5. The School described in C.2 above shall be served solely by electric Heating, Ventilation and Air Conditioning (“HVAC”) equipment, with no fossil fuel-fired boilers. In the event the SCA proposes installation of a fossil fuel-fired boiler for the School, such proposal shall not be accepted and no such boiler shall be installed unless an air dispersion analysis is prepared confirming that such boiler would not result in any significant adverse air quality impacts.

8. The 16 non-Arena Project buildings (a) shall have double-glazed windows and alternative ventilation (air conditioning) and (b) in order to conform to the 45 dBA L10(1) interior noise level recommended by the CEQR Technical Manual shall achieve the building noise attenuation as specified for (i) the Phase I buildings in Table 15-12 on page 15-21 of the FEIS and (ii) the Phase II buildings in Table 4G-8 on page 4G-14 of the FSEIS. However, with respect to a particular building, FCRC may request an adjustment to these requirements upon an adequate demonstration that the design would achieve a level of window wall attenuation sufficient to result in a 45 dBA L10(1) interior noise level for residential and community use and 50 dBA L10(1) for other uses during operation and construction based on methodologies in the then current CEQR Technical Manual.

9. FCRC shall demonstrate that the buildings are designed to comply with the requirements of this section in drawings or other appropriate documents submitted to ESD prior to commencement of construction of the affected buildings.

Comparing 2009 and 2014: physical roadway and transit improvements

2009:

FCRC shall undertake the traffic monitoring following completion of Phase I and Phase II of the project as described in the FEIS and the letter from NYCDOT to ESDC dated November 22, 2006 (the “DOT letter”) and comply with all other requirements of the DOT letter, including those pertaining to the funding of mitigation measures.

2014:

Promptly after the issuance of certificates of occupancy for 1,500 Project dwelling units, FCRC shall undertake a traffic monitoring study pursuant to ascope to be approved by NYCDOT to: (i) refine the signal timing and other traffic mitigation measures described in the FEIS and FSEIS as necessary to reflect then existing traffic conditions; (ii) provide further information as to the implementation date for the signal timing and other traffic mitigation measures specified in the FEIS and FSEIS; and (iii) identify potential additional measures to address unmitigated significant adverse impacts identified in the FEIS and FSEIS based on then existing traffic conditions. FCRC shall undertake a second traffic monitoring study with the same objectives following substantial completion of Project construction. Both traffic monitoring studies shall conform to the requirements specified in the letter from NYCDOT to ESD dated May 30, 2014 (the “2014 DOT Letter”), and shall include the evaluation of additional measures to enhance overall safety at the Atlantic Avenue/Vanderbilt Avenue intersection as specified in the FSEIS. FCRC shall fund and/or implement any identified safety improvements at this intersection at the direction of DOT. FCRC shall also comply with all other requirements of the 2014 DOT Letter (and the DOT letter dated November 22, 2006 (the “2006 DOT Letter”) to the extent not superseded by the 2014 DOT Letter), including those pertaining to the funding of mitigation measures. The traffic monitoring study required after the issuance of certificates of occupancy for 1,500 Project dwelling units shall be in lieu of the traffic monitoring study at the completion of Phase I discussed in the FEIS.

[Note: this study was postponed.]

Comparing 2009 and 2014: demand management

2009:

As described in the FEIS, prior to the opening of the arena, FCRC shall implement incentives to reduce traffic demand associated with the operation of the Project to reduce the overall number of vehicles coming to the arena for a Nets game within one-half mile of the arena by 30% of the initially projected demand. In connection with this requirement FCRC shall:
(1)provide remote parking facilities (e.g., facilities located at MetroTech, Long Island Hospital or other appropriate facilities at the western end of Atlantic Avenue near the Brooklyn-Queens Expressway) containing an aggregate of at least 500 spaces at a 50 percent discount from rates for FCRC-controlled parking at or near the arena;

(b) arrange for free shuttle bus service between the remote parking facilities described above and the arena;

(c) impose high-occupancy-vehicle (“HOV”) parking requirements for at least 600 arena parking spaces at the Project site, requiring vehicles utilizing such HOV spaces to be occupied by three or more persons after 5 PM on Nets game days;

(d) provide a free round-trip subway fare to Nets basketball game ticketholders who would otherwise drive. The final design of this fare-incentive program shall be developed with and subject to the review and approval of NYCT.

(e) provide free round-trip charter bus service between two Staten Island park-and-ride facilities (Outerbridge Park & Ride and Father Capodanno Park & Ride) providing an aggregate capacity accommodating approximately 264 persons. The park-and-ride facilities selected for this service may be modified after implementation, upon the approval of NYCDOT, to maximize the effectiveness of this measure.

(f) cross-market with area businesses to encourage ticketholders to patronize local restaurants and stores before and after games;

(g) provide any ticketholder traveling to the arena by bicycle with free indoor bicycle storage in a secure, manned facility designed to accommodate at least 400 bicycles on the arena block; and

(h) provide expected attendance data to, and otherwise cooperate with, NYCT as necessary to assist NYCT in determining the appropriate increase in subway service to the Atlantic Avenue/Pacific Street subway station on selected subway lines immediately following basketball games and other major arena events as necessary to alleviate potential platform crowding at that subway station.

2014:

(a) promote transit (including rail) travel to the Arena on the Barclays Center web site, event ads and event tickets;

(b) arrange for the Atlantic Avenue/Pacific Street subway station to be renamed the Atlantic Ave-Barclays Center subway station;

(c) post transit schedules on Arena monitors;
(d) make arrangements for a Full-Time Arena Traffic Manager to manage transportation plans for each Arena event, in coordination with NYCT, LIRR, NYPD, NYCDOT, TLC, Traffic Enforcement Agents, and pedestrian traffic managers assigned by FCRC to facilitate pedestrian crossing and circulation in the pre-and post- event periods and provide wayfinding assistance to arena patrons seeking mass transit and rail facilities;

(e) make arrangements for vehicles with 3 or more arena ticket holders to receive a minimum discount of 20 percent or $5.00, whichever is greater, from the event rates charged for other vehicles parking on the Project site;

(f) implement an on-line parking reservation system for event-goers to reduce the need for those who elect to drive to circulate in search of parking;

(g) if determined to be effective and needed to achieve the TDM goals specified in the FEIS, and subject to the review and approval of NYCT and changes in technology that would allow Metrocards to be used only for certain dates, provide a free round-trip subway fare to Nets basketball game ticketholders who would otherwise drive;

(h) cross-market with area businesses to encourage ticketholders to patronize local restaurants and stores before and after games;

(i) provide any ticketholder traveling to the arena by bicycle with free indoor bicycle storage in a secure, manned facility designed to accommodate at least 400 bicycles on the arena block;

[That didn't happen.] 

(j) provide expected attendance data to, and otherwise cooperate with, NYCT as necessary to assist NYCT in determining the appropriate increase in subway service to the Atlantic Avenue/Pacific Street subway station on selected subway lines immediately following basketball games and other major arena events as necessary to alleviate potential platform crowding at that subway station and to encourage transit use; and

(k) provide expected attendance data to, and otherwise cooperate with, LIRR as necessary to assist LIRR in determining the appropriate increase in train service to Atlantic Terminal immediately following basketball games and other major arena events.

2009

2. FCRC shall collect data midway through the first basketball season from Nets patrons documenting the travel mode of such patrons to evaluate the effectiveness of the demand management program, and shall provide such data to NYCT and ESDC. Subject to ESDC approval, which approval shall not be unreasonably withheld, FCRC may adjust the elements of the program to achieve the goal of reducing the auto share by a minimum of 30% of the number of vehicle trips projected for the Build Condition in the FEIS (i.e., to approximately 800 arena inbound auto trips during the pre-game peak hour) within one-half mile of the arena, provided that all practicable and effective demand management measures are maintained.

2014: 

2. FCRC shall collect data midway through the first basketball season from Nets patrons documenting the travel mode of such patrons to evaluate the effectiveness of the demand management program, and shall provide such data to NYCT and ESD. Subject to ESD approval, which approval shall not be unreasonably withheld, FCRC may adjust the elements of the program to achieve the goal of reducing the auto share by a minimum of 30% of the number of vehicle trips projected for the Build Condition in the FEIS (as specified in FEIS Table 12-30 and page 63 of ESD’s SEQRA Findings Statement dated December 8, 2006) within one-half mile of the Arena, provided that all practicable and effective demand management measures are maintained. FCRC shall annually provide ESD with documentation demonstrating its diligent implementation of the TDM plan. FCRC shall conduct follow-up studies documenting the travel mode of Nets patrons to evaluate the continued effectiveness of the TDM plan midway through the 10th and 20th basketball seasons at the Arena.

Comparing 2009 and 2014: pedestrian improements

2009:

FCRC shall fund and cooperate with NYCDOT in the design and construction of the following crosswalk and sidewalk improvements to improve pedestrian circulation in the vicinity of the arena:
Widening of the north crosswalk on Carlton Avenue at Dean Street from 16 feet in width to 21 feet in width;

Widening of the north crosswalk on 6th Avenue at Dean Street from 16 feet in width to 18 feet in width;

Provision of a new sidewalk extension at the northeast corner of Atlantic Avenue at Fort Greene Place;

Provision of a new crosswalk on the south leg of the intersection of Flatbush Avenue and Pacific Street where the new traffic signal is to be installed;

Installation of fencing (consistent in design with NYCDOT-installed fencing throughout the City or as otherwise proposed by FCRC and approved by NYCDOT) on the northwest corner of the Flatbush Avenue/Pacific Street intersection to discourage pedestrians from crossing on the north side of the intersection where no crosswalk exists;

Installation of fencing (consistent in design with NYCDOT-installed fencing throughout the City or as otherwise proposed by FCRC and approved by NYCDOT) at the northwest and southwest corners of the Atlantic Avenue/Flatbush Avenue/4th Avenue intersection; and

Extension of the sidewalk at the northeast corner of Atlantic and Flatbush Avenues.

2014:

FCRC shall fund and cooperate with NYCDOT in the design and construction of the following crosswalk and sidewalk improvements to improve pedestrian circulation in the vicinity of the arena, subject to NYCDOT approval:

1. Widening of cross-walks adjoining the Project site as specified in Table 5-7 of the FSEIS;

2. Provision of a new sidewalk extension at the northeast corner of Atlantic Avenue at Fort Greene Place;

3. Provision of a new crosswalk on the south leg of the intersection of Flatbush Avenue and Pacific Street where the new traffic signal is to be installed;

4. Installation of fencing (consistent in design with NYCDOT- installed fencing throughout the City or as otherwise proposed by FCRC and approved by NYCDOT) on the northwest corner of the Flatbush Avenue/Pacific Street intersection to discourage pedestrians from crossing on the north side of the intersection where no crosswalk exists;

5. Installation of fencing (consistent in design with NYCDOT- installed fencing throughout the City or as otherwise proposed by FCRC and approved by NYCDOT) at the northwest and southwest corners of the Atlantic Avenue/Flatbush Avenue/4th Avenue intersection; and

6. Extension of the sidewalk at the northeast corner of Atlantic and Flatbush Avenues.

New construction monitoring plans for 2014

1. FCRC shall provide ESD with “six month look aheads” that will describe, in general terms, the activities anticipated on the Project site for the next six months (including major milestones for areas of new construction activity, excavation, construction, anticipated maintenance and protection of traffic (“MPT”) measures, soil and groundwater remediation work and soil characterization). The six month look aheads shall be provided to ESD one month prior to the beginning of the six-month period. 

2. FCRC shall promptly seek to retain the services of a qualified engineering firm to serve as the on-site environmental monitor (“OEM”) pursuant to a scope to be reviewed by ESD, and shall use commercially reasonable efforts to retain the engineering firm to serve as the OEM on or before September 15, 2014. FCRC shall make arrangements for the engineering firm to assign one or more engineers with substantial construction management experience in New York City to monitor compliance with the construction-related requirements of the MEC (the “OEM Engineers”). The OEM Engineers may be assisted by qualified staff members (Monitoring Engineers, or “ME’s”). FCRC shall not engage a different engineering firm as the OEM, or move the OEM function in-house, without the prior reasonable approval of ESD. In the event FCRC proposes to change the OEM, it shall submit the following information to ESD: (i) the qualifications of the proposed staff establishing that it would consist of one or more engineers with substantial construction management experience in New York City; (ii) a description of what job duties, if any, such staff members would have apart from serving as the OEM for the Atlantic Yards Project; and (iii) the proposed reporting and documentation procedures to be put into place for the OEM work.

3. During periods of active construction activity, an OEM Engineer shall be assigned to work primarily from a construction trailer or other on-site location to facilitate daily monitoring of the contractors’ compliance with MEC requirements.

4. During periods of active construction work, FCRC shall submit to ESD a report (the “FCRC Quarterly Report”) summarizing its contractors’ compliance with the requirements of the MEC during the previous three months, non-compliance issues that have been identified, steps taken to address any instances of non-compliance and plans to prevent the reoccurrence of any such instances of non-compliance. The FCRC Quarterly Report shall be submitted to ESD within 45 days of the end of the 3- month period to which it relates.

...7. Truck Protocol.

FCRC shall maintain sufficient staff to patrol the Project site regularly to check for non-compliance with the truck protocol requirements concerning idling and/or queuing. The staff devoted to monitoring compliance with the truck protocol will be adjusted based upon the level of construction activity at the site. Staffing for overseeing compliance with truck protocol requirements will be assessed in the six month look aheads, and discussed at weekly meetings with the ESD Environmental Monitoring Firm (defined below).

Staff assigned to oversee compliance with the truck protocol shall be properly trained in the truck protocol and will direct drivers to comply with MEC requirements.

FCRC shall put into place a system to facilitate the reporting of truck protocol violations to FCRC. Material violations of the truck protocol will be reported by staff to FCRC management representatives, and FCRC shall keep a record of such reported incidents.
FCRC shall advise the ESD Environmental Monitoring Firm at the weekly meetings of any circumstance where a company or driver has been found to be a repeat violator of the truck protocols. FCRC and ESD will agree, on a case- by-case basis, on the steps to be taken to deal with such repeat violators. Those measures may include, without limitation, providing warnings, invoking contract sanctions and/or banning from the site such companies and/or drivers in the event that violations continue after reasonable warning has been given.

FCRC shall ensure that contractor logistics plans maximize the utilization of the Pacific Street Queue Area or other designated location for truck marshalling and queuing to the extent practicable and appropriate so long as such areas are available. FCRC shall provide ESD and the ESD Environmental Monitoring Firm with copies of the logistics plans for review and comment.

Maps that identify acceptable routing of trucks to and from the Project site shall be provided to all contractors as part of the MEC training program. FCRC or its contractors shall take measures to ensure that the trucks follow such routes. Among other things, contractors shall be directed to provide those maps to their subcontractors, and require that the maps be distributed to drivers and kept available for reference in the cabs at all times. The Pacific Street Queue Area (if part of the then currently effective logistics plan) will be incorporated into these truck routing maps so long as this area is available.

Comparing 2009 and 2014: construction worker parking

2009:

f) FCRC shall provide on-site parking for construction workers at levels appropriate in light of the number of workers employed at the site during different stages of construction, to a maximum of 800 spaces. FCRC shall monitor the work force levels throughout the construction period and shall report to ESDC on a quarterly basis as to the number of on-site spaces and the utilization of such spaces. The parking facilities shall have perimeter fencing and shall be accessible only during work hours. Parking fees at rates comparable to commercial off-street facilities in the surrounding area shall be imposed for these spaces. FCRC shall consult with and obtain the approval of ESDC, such approval not to be unreasonably withheld, prior to reducing the number of construction worker parking spaces at the Project site as the number of workers changes and permanent parking locations within the Project site become available for construction worker parking. Any lighting on any interim construction staging and parking area shall be equipped with directional lighting angled to limit light intrusion beyond the site, and shall employ controls to reduce lighting during periods when the facility is not in active use, consistent with site security. The screening measures required herein shall be properly maintained so long as such facility remains in operation. No more than 1100 vehicles, in the aggregate, shall be parked in any surface parking lot(s) on Block 1129 at any one time.

2014:

(c) To avoid overtaxing the nearby on-street and off-street parking facilities, FCRC shall make available to construction workers the 300 on-site spaces typically used to accommodate Arena demand. If practicable, additional spaces shall be made available on the project site during any phase of construction if more than 500 construction workers are at the site and there is a shortfall of parking spaces at the Atlantic Center parking garage. The on-site spaces to be utilized by construction workers shall be made available at a fee comparable to other parking facilities in the area. Any lighting on any interim construction staging and parking area shall be equipped with directional lighting angled to limit light intrusion beyond the site, and shall employ controls to reduce lighting during periods when the facility is not in active use, consistent with site security. The screening measures required herein shall be properly maintained so long as such facility remains in operation. No more than 1100 vehicles, in the aggregate, shall be parked in any surface parking lot(s) on Block 1129 at any one time.

Comparing 2009 and 2014: noise

2009:

FCRC shall employ the following measures in the construction of the Project:
(i) Using equipment that meets the sound level standards specified in the Noise Code;
(ii) Using construction equipment that meets the noise emission levels specified in Table 17c-3 of the FEIS, “Construction Equipment Noise Emission Levels,” where such levels are more stringent than those imposed by the Noise Code;
(iii) Scheduling work that would generate high noise levels during weekday daytime hours to extent feasible, rather than during weekday nighttime or weekend hours, unless required as a result of safety or other agency requirements;
(iv) To the extent feasible, scheduling equipment and material deliveries during weekday daytime hours, rather than during weekday nighttime or weekend hours;
(v) As early as practicable in the construction period and wherever feasible, using electrical-powered equipment, such as electric scissor lifts and electric articulating boom lifts, rather than diesel-powered equipment for construction activities; 

(vi) Situating noisier equipment, such as generators, cranes, tractor trailers, concrete pumps, concrete trucks and dump trucks at locations that are removed from sensitive receptor locations and are shielded from sensitive receptor locations wherever feasible. For example, during the early construction phases of the Project, delivery trucks and dump trucks are to be located approximately 20 feet below grade to take advantage of the shielding benefits of grade differences. Once building foundations are completed, delivery trucks are to be located adjacent to noisy streets (i.e., Atlantic Avenue, Flatbush Avenue and 6th Avenue) rather than at quieter streets, such as Dean Street and Pacific Street, where there are residences;

(vii) A minimum 8 foot high perimeter barrier (constructed of 3/4” thick plywood), with a 16 foot high barrier (of 3/4” thick plywood) adjacent to sensitive locations, including locations along Pacific Street, Dean Street, and Flatbush Avenue opposite residences and the Brooklyn Bear’s Pacific Street Community Garden, and, where practicable, truck deliveries shall take place behind these barriers. Noisy delivery trucks, such as concrete trucks, are to be operated behind the barriers;
(viii) Where practicable, use of quiet construction procedures;
(ix) Requiring all contractors and subcontractors to properly maintain their equipment and have quality mufflers installed; and
(x) Where practicable, noise curtains and equipment enclosures shall be utilized to provide shielding from significant noise- generating equipment to sensitive receptor locations.

2014:

(d) FCRC shall employ the following measures in the construction of the Project:
Using equipment that meets the MEC Noise Levels;
Scheduling work that would generate high noise levels during weekday daytime hours to extent feasible, rather than during weekday nighttime or weekend hours, unless required as a result of safety or other agency requirements;
To the extent feasible, scheduling equipment and material deliveries during weekday daytime hours, rather than during weekday nighttime or weekend hours;
Where practicable and feasible, configuring sites to minimize back-up alarm noise;
Where practicable and feasible, using sound-mitigated backup alarms such as backup alarms that lower backup alarm noise in response to more quiet ambient conditions (such as night-time work) or backup alarms that use white noise or other mitigating technologies for trucks and equipment expected to operate at or make deliveries to the Project site during any phase of extended night-time work or night-time module deliveries;
Requiring that pre-cast decking or plates on roadways be stable;
Prohibiting the idling of trucks for more than three minutes at the construction site per New York City law, except when operation of the engine is required to operate ancillary truck-mounted equipment (e.g., concrete trucks);
As early as practicable in the construction period and wherever feasible, using electrical-powered equipment, such as electric scissor lifts and electric articulating boom lifts, rather than diesel-powered equipment for construction activities;
Situating noisier equipment, such as generators, cranes, tractor trailers, concrete pumps, concrete trucks and dump trucks at locations that are removed from sensitive receptor locations and are shielded from sensitive receptor locations wherever feasible. For example, during the early construction phases of the Project, delivery trucks and dump trucks are to be located approximately 20 feet below grade to take advantage of the shielding benefits of grade differences. Once building foundations are completed, delivery trucks are to be located adjacent to noisy streets (i.e., Atlantic Avenue, Flatbush Avenue and 6th Avenue) rather than at quieter streets, such as Dean Street and Pacific Street, where there are residences;
Erecting and maintaining a minimum 8 foot high perimeter barrier (constructed of 3/4” thick plywood), with a 16 foot high barrier (of 3/4” thick plywood) adjacent to sensitive locations where practicable and feasible;
Where 16-foot barriers are not practicable and feasible adjacent to sensitive receptors, installing the best feasible and practicable additional noise path controls, which may include noise curtains or other barriers within the site between the noise sources and sensitive receptors, angled/cantilevered fences, and/or other practicable pathway controls;
Operating delivery trucks behind the noise barriers where practicable;
Where practicable, using quiet construction procedures and equipment, including, where practicable, the use of a bed liner made of thick rubber, spray-on liner, plywood, sand or gravel on dump trucks to mitigate the noise of the first load being dropped into the dump truck;
Requiring all contractors and subcontractors to properly maintain their equipment and have quality mufflers installed; and
Where practicable, utilizing noise curtains and equipment enclosures to provide shielding from significant noise- generating equipment to sensitive receptor locations.

New for 2014:

b) FCRC shall develop a written protocol for confirming that its contractors utilize equipment that meets the noise levels set forth in the Noise Code or Table 3J-1 of the FSEIS, whichever is lower (the “MEC Noise Levels”). Such protocol will focus on construction equipment that generates noise at levels that would materially affect off-site ambient noise. The protocol shall provide for the following alternative means of demonstrating compliance: (i) documentation may be provided acceptable to FCRC and ESD that the equipment has been tested previously and found to meet the MEC Noise Levels; or (ii) in the event compliance is not established pursuant to alternative (i) the OEM will perform noise monitoring pursuant to procedures set forth in the protocol, utilizing monitoring equipment that downloads testing results. In the event that noise monitoring indicates an exceedance of the MEC Noise Level, FCRC shall so advise ESD and the ESD Environmental Monitoring Firm, and require the involved contractor to replace the equipment with equipment that complies with the MEC Noise Level or institute pathway controls that effectively reduce equipment noise to acceptable levels. ESD acknowledges that it has determined that FCRC has satisfied the requirement to develop the aforementioned protocol by development of the document annexed to the letter signed on behalf of certain FCRC affiliates dated January 28, 2014. The approved protocol may be amended by FCRC with the approval of ESD.
(c) Pursuant to the protocol described above, the OEM staff shall check applicable equipment for compliance with the MEC Noise Requirements when the equipment is first mobilized. The OEM staff also shall regularly check equipment in use on-site against the construction noise mitigation plan or the alternative construction noise mitigation plan (as applicable under the Noise Code) posted for the site to confirm that there are no discrepancies, or revise such plans as necessary.

Comparing 2009 and 2014: noise attenuation

2009:

(c) FCRC shall make available double-glazed or storm windows and alternative ventilation (e.g., air conditioning) for those residential locations where the FEIS identified significant noise impacts and such windows and air conditioning are not currently installed, subject to the consent of the owners and tenants of such residences, and subject to applicable laws, rules and regulations. All such windows and alternative ventilation shall be provided without charge and with free installation.

(d) As described in the FEIS, and subject to the consent of the respective property owners, FCRC shall make available and install, free of charge (i) interior-fitted storm windows (or suitable alternative windows) for the Pacific Street side of the Pacific Branch of the Brooklyn Public Library and (ii) storm windows for the second floor of the Temple of Restoration windows facing Dean Street (if such windows do not already have storm windows).

(e) FCRC shall work with the Parks Department to supplement its planned improvements to the Dean Playground with a comfort station open to the general public.

(f) Noise mitigation measures shall be implemented – where such measures have been accepted by building owners and their tenants – in a timely manner so as to avoid the significant adverse noise impacts identified in the FEIS where practicable.

(g) FCRC shall implement a monitoring program to ensure that vibration levels at the Swedish Baptist Church and the town houses along Dean Street immediately adjacent to the Project’s Building 15 site are kept below 0.50 inches/second.

2014:

(e) In an effort to avoid delays occasioned by Con Edison scheduling constraints, FCRC shall submit electrification requests as early in the construction sequence as practicable, and follow up with Con Edison on a regular basis until electrification has been timely accomplished, subject to scheduling restraints of other entities not under FCRC control.

(f) FCRC shall assure that construction fencing, where required, meets the requirements of the MEC and the applicable Sound Transmission Class specifications of the Noise Code.

(g) Where construction staging areas used in connection with nighttime work are located within 200 feet of a sensitive receptor, such areas shall be shielded on the side facing those sensitive receptor(s) by Noise Code/MEC-compliant noise mitigating fencing and/or blanketing, where practicable, unless ESD determines that such shielding is not required due to the nature of the activities anticipated in such area, and the duration of such activities.

(h) FCRC shall make available double-glazed or storm windows and alternative ventilation (e.g., air conditioning, through the provision of one air conditioner per bedroom or main living room with a window along a façade predicted to experience significant adverse construction noise impacts) for those residential locations where the FEIS or FSEIS identified significant noise impacts and such windows and air conditioning are not currently installed, subject to the consent of the owners and tenants of such residences, and subject to applicable laws, rules and regulations. All such windows and alternative ventilation shall be provided without charge and with free installation. In the event that an air conditioning unit required to be provided pursuant to this paragraph requires replacement, FCRC shall replace the unit if Project-related construction activities in the vicinity of such residential location have not yet been completed such that the location would be subject to continued construction-related significant adverse noise impacts.

(i) As described in the FEIS, and subject to the consent of the respective property owners, FCRC shall make available and install, free of charge (i) interior-fitted storm windows (or suitable alternative windows) for the Pacific Street side of the Pacific Branch of the Brooklyn Public Library and (ii) storm windows for the second floor of the Temple of Restoration windows facing Dean Street (if such windows do not already have storm windows).

(j) FCRC shall work with the Parks Department to supplement its planned improvements to the Dean Playground with a comfort station open to the general public.

(k) Noise mitigation measures shall be implemented – where such measures have been accepted by building owners and their tenants – in a timely manner so as to avoid the significant adverse noise impacts identified in the FEIS and FSEIS where practicable.

(l) FCRC shall implement a monitoring program to ensure that vibration levels at the Swedish Baptist Church and the town houses along Dean Street immediately adjacent to the Project’s Building 15 site are kept below 0.50 inches/second.

New for 2014 regarding air quality

(a) Prior to the commencement of construction activities for each major work phase, FCRC or its contractor(s) shall prepare a Dust Management Plan that identifies: the location of the fixtures to be used in controlling dust at the site (including without limitation hydrants or other points of water supply), any wheel washing stations, gravel placement locations, hoses, dust suppression agents and any other equipment and material to be used in complying with the dust suppression requirements of the MEC. FCRC shall require its contractors to adhere to such plans. ESD and the ESD Environmental Monitoring Firm shall be provided with the opportunity to comment on the Dust Mangement Plan and require revisions if warranted, prior to its implementation in the field.
(b) FCRC and its contractors shall assign sufficient staff to allow for careful monitoring of contractor compliance with MEC dust control measures, and staffing will be keyed to the level of dust- generating construction activities at the site. Staffing levels will be assessed in the six month look aheads and discussed at the weekly meetings with the ESD Environmental Monitoring Firm.
(c) OEM personnel will follow the manufacturer’s recommendations for operation and maintenance of the air monitoring equipment, and routine inspections of the equipment will be performed to ensure functionality. OEM personnel will follow the best management practices previously recommended by the ESD Environmental Monitoring Firm in operating this equipment, or equally effective procedures.

Comparing 2009 and 2014 regarding air quality/dust

2009:

(iii) Watering unpaved surfaces, including haul roads and excavation faces. All unpaved haul roads and excavation surfaces shall be continuously watered by watering trucks or constant misting, so that surfaces remain damp at all times when in use during construction. Gravel cover shall be applied to unpaved surfaces which are regularly traveled. (iv) Covering or water-misting of stockpiled materials. All stockpiled dry materials (e.g., sand, aggregate) shall be water-misted; sprayed with non-hazardous, biodegradable suppressing agent; covered; or otherwise enclosed.
(vii) Washing the wheels of all trucks as they exit from the site. A washing station shall be constructed at each truck exit, whereby truck wheels shall be washed, and the water shall be contained and recycled to avoid tracking mud out of the site.

2014:

Watering unpaved surfaces, including haul roads and excavation faces. Gravel cover shall be applied to unpaved surfaces which are regularly traveled. Unless gravel cover is applied, unpaved haul roads and excavation surfaces shall be adequately watered by watering trucks or misting, so that surfaces remain damp when in use during construction. If watering activities are not practicable due to below-freezing conditions or other safety considerations, alternate dust suppression techniques may be utilized such as broom sweeping of truck tires and the use of other dust suppression agents. The Dust Management Plan shall address such alternate dust suppression techniques.

Adequately moistening or covering by a tarp, dust suppression agent or other effective means any soil stockpiled on site. This requirement will be specifically incorporated into the training materials for the relevant contractors. Stockpiles of contaminated material shall be managed in accordance with the HASP approved by NYSDEC, NYCDEP or OER, as applicable.

Washing the wheels of all trucks as they exit from the site. A washing station shall be constructed at each truck exit, whereby truck wheels shall be washed, and the water shall be contained and recycled to avoid tracking mud out of the site. If construction of a wheel washing station is not practicable at a construction site exit due to site conditions, the circumstances giving rise to any claim of impracticability shall be set forth in the relevant Dust Management Plan, and in such circumstances, the Dust Management Plan prepared by FCRC or its contractor shall include a substitute program for wheel cleaning that will achieve equivalent results, taking into account weather conditions, space availability, site pitch, catch basin location and other relevant factors.

2009

(e) FCRC shall employ best available tailpipe emissions reduction technologies, including utilization of diesel particulate filters (“DPF”) (or, subject to ESDC approval, improved technologies verified by EPA or the California Air Resources Board to reduce particle emissions by at least 85%) on all nonroad engines of 50 hp or greater and on all concrete trucks and concrete pump trucks. All nonroad engines used for the construction work shall be inspected and labeled where practicable to confirm that DPF is installed and functioning and that the engine is to be fueled only with ULSD. 

FCRC shall bar any non-complying equipment from the work site or expeditiously bring into compliance any equipment found to not be in compliance. Notwithstanding the foregoing, if with respect to a specific nonroad engine of 50 hp or greater, FCRC determines that it would not be practicable to equip the engine with a DPF and that use of the engine is required for the construction to proceed, FCRC shall use a substitute particulate control technology such as a diesel oxidation catalyst instead of a DPF upon the concurrence of ESDC that the DPF is impracticable for the type of equipment needed for the construction work.

(f) To the extent practicable, FCRC shall require that all stationary engines be located at least 50 feet from locations such as sidewalks, residential or school windows, and building air intakes.

2014 

(h) FCRC shall employ best available tailpipe emissions reduction technologies, including utilization of diesel particulate filters (“DPF”) (or, subject to ESD approval, improved technologies verified by EPA or the California Air Resources Board to reduce particle emissions by at least 90%) on all nonroad engines of 50 hp or greater and on all concrete trucks and concrete pump trucks. All nonroad engines used for the construction work shall be inspected and labeled where practicable to confirm that DPF (or approved alternative technology) is installed and functioning and that the engine is to be fueled only with ULSD.

(i) All non-road construction equipment with a power rating of 50 hp or greater shall meet at least the Tier 3 emission standard. All non- road diesel engines rated less than 50 hp shall meet at least the Tier 2 emission standard. This paragraph shall not apply to the construction of Building 2, Building 3 or rail yard construction.

(j) All non-road construction equipment with a power rating of 50 hp or greater shall meet the Tier 4 emissions standard beginning in 2022.

(k) FCRC shall bar any non-complying equipment from the work site or expeditiously bring into compliance any equipment found to not be in compliance. Notwithstanding the foregoing: with respect to a specific nonroad engine of 50 hp or greater, the requirement to use a DPF (or other technology proven to achieve equivalent emissions reduction) may be waived by the OEM upon notice to ESD where the equipment is: (a) determined on very short notice to be necessary to complete a critical path item; (b) to remain on site for a very brief period of time; or (c) not practicable to retrofit with a DPF (or other technology proven to achieve equivalent emissions reduction) and DPF-compliant equipment of that type is not practicably available; if with respect to any equipment subject to the Tier 3 or Tier 4 requirement, it is determined that such equipment is not practicably available for the type of equipment required for construction, equipment otherwise in compliance with MEC requirements may be used.

(l) As one element of the MEC training program, contractors will be instructed on how to complete and submit the documentation needed to confirm compliance with the diesel particulate matter reduction technology requirements of the MEC. Such instruction will be provided at a level of detail commensurate with the training needs of the contractors on the site.

(m) Where practicable, all equipment subject to the DPF (or equivalent) emission control requirements of the MEC shall be prominently labeled with a label prepared by FCRC that indicates that the equipment has a DPF (or equivalent emission control technology) that complies with the MEC emission control requirement. ESD and the ESD Environmental Monitoring Firm shall be given the opportunity to review the form of label before it is used in the field. Information on how to label compliant equipment will be provided as part of contractor training. Additional labels are not required for equipment with USEPA labels indicating that the emission controls on such equipment satisfy requirements that are at least as stringent as those required by the MEC

(n) To the extent practicable, FCRC shall require that all stationary engines be located at least 50 feet from locations such as sidewalks, residential or school windows, and building air intakes.

New for 2014:

(b) The CAQM [Construction Air Quality Measures plan] shall be updated in 2014, and as necessary, thereafter, to reference the contractors and personnel currently working at the project site and to reflect current OEM protocols and procedures. Exhibits to the CAQM shall be updated from time to time as necessary to maintain the effectiveness of the CAQM. Among other things, monitoring logs, visual-observation logs and incident- report logs (examples of which are included, or will be included, as exhibits in the CAQM) will be streamlined to facilitate their daily completion by the MEs. ESD and the ESD Environmental Monitoring Firm will be given the opportunity to review and provide comments on the modified logs prior to their use in the field. Once the logs have been revised they will be completed by an OEM Engineer or the MEs on a daily basis, or as otherwise set forth in the updated CAQM, and will be compiled and submitted to ESD as attachments to the FCRC Quarterly Report for that period.

11. FCRC shall undertake the following steps to improve the contractor training program:
(a) FCRC shall target its PowerPoint presentation so that it provides specific instructions to contractors on the requirements of the MEC. ESD and the ESD Environmental Monitoring Firm will be provided with the opportunity to comment on the PowerPoint presentations (and any modifications thereto) prior to their use in contractor training.

(b) PowerPoint presentations shall be presented by the OEM to all foreman, project managers, field managers (such as project superintendents and foremen) and similar key personnel of all subcontractors every 90 days and upon mobilization, with sign-in sheets to track attendance. Sign in sheets for said 90 day period will be included in the FCRC Quarterly Report for that period.

Comparing 2009 and 2014: construction coordinator

2009:

FCRC shall maintain an on-site construction coordinator to function as a liaison between FCRC and the community with respect to construction- related issues. The coordinator shall be available to consider specific concerns raised by the community with respect to the construction issues and seek to resolve such concerns.

2014:

13. FCRC shall maintain an on-site construction coordinator to function as a liaison between FCRC and the community with respect to construction- related issues (the “CLO”). The CLO shall be available to consider specific concerns raised by the community with respect to the construction issues and seek to resolve such concerns. The CLO shall keep a record (log book) of construction-related complaints received by the CLO from the public and efforts taken to resolve such complaints. The CLO shall seek to resolve all complaints or provide relevant information to the person who brought the issue to the CLO’s attention within 24-hours or as soon thereafter as is practicable.

14. The FCRC compliance staff for the construction-related requirements of this MEC shall include one or more OEM Engineers and MEs. Each six month look ahead shall include an assessment of staffing levels, and OEM staffing will be adjusted as appropriate in light of anticipated changes to the level of construction activity during future reporting periods. At each weekly meeting with the ESD Environmental Monitoring Firm, the OEM shall provide an update on upcoming after- hour and/or weekend work and make a recommendation as to whether such work requires the presence of an ME. If the ESD Environmental Monitor disagrees with a recommendation that an ME not be present during such activities, and FCRC thereafter disagrees with the position of the ESD Environmental Monitor, FCRC shall bring the matter to ESD’s attention so that the issue is resolved before such work occurs.

Comparing 2009 and 2014: fencing/landscaping

2009:

FCRC shall screen the construction staging area and interim parking areas on Blocks 1120 and 1129 with fencing and landscaping installed in accordance with a plan subject to the approval of ESDC, which is not to be unreasonably withheld. If an interim construction staging or parking facility is equipped with lighting, it shall be directional lighting angled to limit light intrusion beyond the site and shall employ controls to reduce lighting during periods when the facility is not in active use, consistent with site security. The screening measures required herein shall be properly maintained so long as such facilities remains in operation.

2014:

8. FCRC shall screen the construction staging area and interim parking areas on Blocks 1120 and 1129 with fencing and landscaping installed in accordance with a plan subject to the approval of ESD, which is not to be unreasonably withheld. If an interim construction staging or parking facility is equipped with lighting, it shall be directional lighting angled to limit light intrusion beyond the site and shall employ controls to reduce lighting during periods when the facility is not in active use, consistent with site security. The screening measures required herein shall be properly maintained so long as such facilities remains in operation. Subject to LIRR requirements, lighting for Project-related construction work in the rail yard shall also be directional lighting angled to limit light intrusion beyond the rail yard and shall employ controls to reduce lighting during periods and in areas when such lighting is not needed for construction, consistent with site security.

New for 2014: 

21. Where feasible and practicable, for construction sites east of 6th Avenue, construction fencing facing Vanderbilt Avenue, Dean Street, Carlton Avenue, Pacific Street or 6th Avenue shall be visually enhanced with temporary art displays curated by Artbridge or a similar organization if such fencing is to remain in place for more than one year. This requirement does not apply to the landscaped screening currently in place around the temporary parking lot on Block 1129.

Comparing 2009 and 2014: enforcement

2009:

During the period in which the Project buildings, or any one of them, are being constructed, FCRC shall provide funding for the reasonable costs of an environmental monitor (which shall be a qualified consulting firm with subconsultants, as appropriate) to be selected by and retained by ESDC to: (i) monitor FCRC’s compliance with certain provisions of this memorandum; (ii) review any submittals made by FCRC pursuant to such provisions and advise ESDC with respect thereto; and (iii) provide ESDC with periodic written reports concerning FCRC’s implementation of such provisions. The certain provisions referred to in the preceding sentence are paragraphs: C.3 (pertaining to Day Care); E (with respect to protection of cultural resources near the project site from being impacted by construction on the project site); G.2 (pertaining to Hazardous Materials); I.9 (pertaining to reviewing the effectiveness of any modified design for stormwater management facilities); J.2 (pertaining to reviewing alternative fuels or boiler technologies); J.4 (pertaining to reviewing the location of HVAC intakes in the event that the design of the relevant Project buildings changes from the design subject to air dispersion modeling in the FEIS); K.6 (pertaining to decisionmaking with respect to the funding of TEAs in the event that FCRC and NYCDOT do not reach agreement on this issue); L.2 (pertaining to the adjustment of demand management measures); and N.1, N.2.d, N.2.e, N.2.f, N.3.b, N.3.c, N.3.d, N.3.f, N.3.g, N.4, N.5, N.6, N.7, N.9, N.10, N.11, N.12, N.13 and N.14 (pertaining to construction). The obligation set forth in this paragraph shall cease upon completion of the Phase II buildings. This memorandum shall not make FCRC responsible for the cost or time expended by any ESDC personnel or consultant otherwise hired by or in the employment of ESDC. This memorandum is without prejudice to other funding discussions that may occur between ESDC and FCRC.

2014:

FCRC shall include in its construction contracts, and require its contractors to include in all subcontracts, an exhibit incorporating an excerpt from the MEC that sets forth all construction-related requirements contained in that document. FCRC’s construction contracts shall expressly require each contractor to comply with all of the terms of the MEC that apply to its construction activity, and to require its subcontractors to do the same. FCRC shall add to its standard MEC-related contractual terms a provision that reiterates FCRC’s remedies for a contractor’s non-compliance with the MEC, including the rights to withhold payment or terminate the contract; such provision, however, shall be in addition to other remedies available to FCRC to address any contractor’s non-compliance with an MEC requirement. FCRC shall cause its contractors to address any substantive non-compliance with the MEC within 7 days after written notice thereof by ESD, or shall promptly advise ESD in writing as to why FCRC does not agree that a non-compliance has occurred (or why the matter cannot be addressed within a 7-day period and the time period FCRC believes is needed to address this issue, in which case FCRC shall cause its contractors to address any substantive non- compliance with the MEC as soon as is practicable under the circumstances). In the event that a non-compliance has not been disputed by FCRC (or is disputed but is subsequently determined to be a non-compliance after further discussion between ESD and FCRC) and the contractor does not promptly address such non-compliance, FCRC shall utilize one or more of the remedies contained in its agreements with the non-complying contractor and shall advise ESD of the steps taken under the contract to address the non-complying condition. 

5. During the period in which the Project buildings, or any one of them, are being constructed, FCRC shall provide funding for the reasonable costs of an environmental monitor (which shall be a qualified consulting firm with subconsultants, as appropriate, the “ESD Environmental Monitoring Firm”) to be selected by and retained by ESD to: (i) monitor FCRC’s compliance with certain provisions of this memorandum; (ii) review any submittals made by FCRC pursuant to such provisions and advise ESD with respect thereto; and (iii) provide ESD with periodic written reports concerning FCRC’s implementation of such provisions. The certain provisions referred to in the preceding sentence are paragraphs: C.3 (pertaining to Day Care); E (with respect to protection of cultural resources near the project site from being impacted by construction on the project site); G.2 (pertaining to Hazardous Materials); I.8 (pertaining to reviewing the effectiveness of any modified design for stormwater management facilities); J.2 (pertaining to reviewing alternative fuels or boiler technologies); J.4 (pertaining to the review of any proposed adjustment to the location of the Building 3 stack); J.5 (pertaining to review of any proposed installation of a fossil fuel-fired boiler in the public school); J.6 (pertaining to review of the location of HVAC intakes in the event that the design of the relevant Project buildings changes from the design subject to air dispersion modeling in the FEIS); J.8 (pertaining to review of any proposed reduction in specified window wall attenuation levels); J.9 (pertaining to review of designs to confirm compliance); K.6 (pertaining to decisionmaking with respect to the funding of TEAs in the event that FCRC and NYCDOT do not reach agreement on this issue); L.2 (pertaining to the potential adjustment of demand management measures as a result of the evaluation to occur in the 10th and 20th basketball season at the arena); and N (pertaining to construction). The obligation set forth in this paragraph shall cease upon completion of the Project buildings. This memorandum shall not make FCRC responsible for the cost or time expended by any ESD personnel or consultant otherwise hired by or in the employment of ESD. This memorandum is without prejudice to other funding discussions that may occur between ESD and FCRC.