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HomeMy WebLinkAboutNYSDEC/Hazardous Waste ELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (631) 765-6145 Telephone (631) 765-1800 southoldtown.northfork.net THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 147 OF 2003 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON MARCH 11, 2003: WHEREAS The New York State Department of Environmental Conservation (NYSDEC), Division of Solid and Hazardous Materials has approved the application of the Southold Town Solid Waste Management District for a grant under the Household Hazardous Waste State Assistance Program in the amount of $97,500, and WHEREAS NYSDEC has forwarded to the Town a proposed contract to provide this funding, now therefore be it RESOLVED that the Town Board of the To~vn of Southold hereby authorizes and directs Supervisor Joshua Y. Horton to implement said contract through his signature, as required, subject to the review and approval of the Town Attorney. Elizabeth A. Neville Southold Town Clerk C302077 CONTRACT. FOR STATE ASSISTANCE HOUSEHOLD HAZARDOUS WASTE STATE ASSISTANCE PROGRAM ~ONMENT AL PROTECTION FUND ) FEB zt 003 TOWN OF SOUTHOLD DEP]. OF SOLID WAS~'E This Contract by and between the CYork State Department of Environmental Conservation (herein referred to as the "Department") and the ' Town of Southold ' (herein referred to as the "Municipality") offices located at P.O. Box 1179, Cutehogue, NY 11971 WITNESSETH: w-m~,REAS, the Department is authorized by section 54-0705 of the Environmental COnservation Law and the 6 NYCRR Subpart 373-4 Regulations to enter into contracts on behalf of the State to provide grants to municipalities for Household Hazardous Waste Collection Programs; and WHEREAS, the Municipality has applied for a project grant, the scope of work/project description which includes budget amounts is set forth in Schedule A, which is attached and made a part of this contract; and WI~,REAS, the Municipality has filed with the Department a duly adopted resolution authorizing it to make such application and authorizing an officer of the Municipality to enter into and execute this contract on behalf of the Municipality with the Department for the purpose of receiving the grant; and WHEREAS, the' Department has approved the eligibility and estimated reasonable cost of the project and related work described in the attached Schedule A and the amount of State assistance therefor; and NOW Ti~,REFORE, In consideration of the promises and the mutual covenants and conditions contained in this Contract, the Department and the Municipality agree as follows: The term of this Contract shall commence on January 1, 2001 and, except with respect to paragraph 7, shall terminate on December. 31, 2003. The Department agrees to make available to the Municipality a sum not to exceed Ninety-seven Thousand Five Hundred Dollars and No Cents ($97,500.00) to reimburse the Municipality for exPenditures made to cover eligible costs incurred for the items listed under Schedule A, Project Scope of Work/Project Description and eligible costs, which is attached hereto and made a part hereof. Reimbursement hereunder is limited to fifty percent (50%) of the eligible costs incurred. The Municipality agrees to provide for the payment of the municipality's share of the net cost of the Project and make reasonable efforts to secure Federal assistance for the l~oject. WItEREAS, the Municipality has:the legal status necessary to enter into this contract; and WItEREAS, the Department's execution of this contract is made in reliance upon the information provided by, and representations of, the Municipality in its application papers and this contract. 3. Eligible costs are those incurred by the Municipality during the term of this contract, and which are included in Schedule A. The Municipality shall spend fimds paid to it under this contract in strict accordance with Schedule A, and the budget contained therein. State Assistance Contract - Household Hazardous.Waste (HHW) State Assistance Program Page 1 of 4 4. Reimbursement shall be made upon audit and approval by the State Comptroller (herein referred to as the "Comptroller") of vouchers executed by an authorized officer of the Municipality. Any claims for reimbursement shall be accompanied by such proofs of cost and payment as may be · required'by the Department and by the Comptroller. Claims for reimbursement shall be delivered or sent to the address included in paragraph 6. 5. Any project cos~ overruns will not'be paid by the Department, and the Department is not committed to seeking additional appropriations or allocations of funds for the Municipality's project or. program. 6. It is understood and agreed between the parties that the Department's Authorized Representative for the implementation of this Contract, or for approval and direction called for therein, shall be the Director of the Division of Solid & Hazardous Materials, or designee. Whenever it is provided in this Contract that notice shall be given or other communications sent to the Department or Municipality, such notices or communications shall be delivered or sent to: State NYS Dept. of Environmental Conservation Division of Solid & Hazardous Materials 625 Broadway, 9th Floor Albany, New York 12233~7250 ATTENTION: Director 7. The Municipality shall undertake and complete the Project as set forth in this Contract. a. Each of the following constitutes a failure to undertake ad complete the' Project: 1.. Failure to undertake the Project. 2. Failure to make progress on the Project to the satisfaction of the Department. 3. Failure to complete the Project to the satisfaction of the Department. 4. Failure to continue implementation and operation of the Proj eot after expiration or completion of this contract. 5. Change in the use of the Project, or any portion thereof, without the prior written approval Of the Depat m~ent. b. Failure to undertake and complete the Project shall constitute cause for the suspension or termination of any obligation of the Department hereunder; and if such failure is attributable to any reason or cause other than a national emergency or an Act of God, the Municipality shall repay to the State all monies paid to the Municipality by the State within one year after demand for repayment is ' made. If such monies are not repaid within one year after such demand, the Department may request the Comptroller to cause an amount equal to the monies paid to the Municipality under this contract to be withheld from any State assistance to which the Municipality otherwise would be entitled. This provision is in addition to the terms of Clause 9 of Appendix "A" referred to in paragraph 16 of this contract. Municipality Mr. James Bunchuck Solid Waste Coordinator Town of Southold P.O. Box 962 Cutchogue, NY 11935 Notices so delivered or sent shall be deemed for alt purposes as notice to all persons who are parties to this Contract as Department or Municipality $. The Notwithstanding the foregoing, no repayment will be required if the Department determines that such failure, disposition or change of use of the Project. or any portion thereof was immediately necessary to protect public health and safety. Municipality agrees to not sell, lease or otherwise dispose of, or use lands, equip-ment, or facilities acquired under this contract for any purpose inconsistent with the Project under which such land, equip-ment or facilities is acquired without the advance written approval of the Department. Following completion of the funded project all costs of operating and maintaining the facility or equipment shall be borne by the State Assistance Contract - Household Hazardous Waste (ItttW) State Assistance Program Page 2 of 4 Municipality, except with respect to paragraph 17. The Municipality agrees to expend these funds strictly in accordance with the attached Schedule A, the provisions of the New York State Environmental Conservation Law, the State Finance Law, the General Municipal Law, Appendices A and B, and all applicable rules and regulations. For projects involving collection days, the Municipality must have written approval from the Department to conduct a Household Hazardous Waste Collection Program prior to any collection day, and a complete report must be submitted to the Department within ten (10) business days after completion of the collection day on forms supplied by the Depat hnent. Co For projects in which collection and storage 'facilities are to be constructed, construction costs will be considered eligible for reim- bursement after construction of the facility is completed. Operating costs will be considered eligible for reimbursement only where the municipality has a valid permit to operate the facility during the time period for which reimbursement is sought, and a year end report was submitted to the Department covering the previous calendar year. If the Municipality fails to comply with any of these requirements, the Department may, upon reasonable written notice, withhold payments, in whole or part, to the Municipality pending compliance. 10. The Municipality agrees to indemnify, save, and hold harmless the State and the Department in accordance with Clause lI of Appendix B, referred to in paragraph 16 of this Contract. 11. If monies paid to the Municipality under this Contract are to be used for the development of facilities, the Municipality agrees to comply with all requirements for providing barrier free access for the handicapped as established by Article 4A of the New York State Public Buildings Law and relevant sections of the New York State Uniform Fire Prevention and Building Code. 12. 13. 14. 15. 16. 17. 18. 19. Facilities developed or equipment purchased pursuant to this Contract, upon request, shall be made available for inspection by the Department at any reasonable time. In recognition of the provision of State funds for the Project, the Municipality agrees to give the Department appropriate credit for its support in documents or publications resulting from this Project. Title to, and the right to determine the disposition 'of any copyrights, or copyrightable materials, ftrst produced or created in the performance of this Project remains with the Municipality provided that the Municipality will grant to the Depart-ment an irrevocable, royalty-free, non-exclUSive right to reproduce~ translate, and use all such material for its own purposes. The Municipality agrees that any identifying signs will note that,portions of tl~s Project were' funded by New York State Department of Environmental Conservation. Appendices 32 and B are attached to and made a part of this Contract. The Municipality agrees that it will 'not receive reimbursement from other sources for any expenditures funded under this Contract. However, nothing in this contract shall prohibit the Municipality from submitting additional applications for funding in fiscal years following completion of this project, provided costs akeady used to claim reimbursement hereunder are not eligible for future reimbursement regardless of reimbursement percentage rate. The Department may review, fund or deny such application without prejudice. This Contract shall be effective upon approval of all required State Agencies. All terms used in this Contract which apply to a Household Hazardous Waste Collection Program shall have the same meaning as provided in 6 NYCRR Part 373-4. State Assistance Contract - Household Hazardous Waste (HRW) State Assistance Program Page 3 of 4 HOUSEHOLD HAZARDOUS WASTE STATE ASSISTANCE PROGRAM - CONTRACT SIGNATURE pAGE Municipality TownofSouthold ContraetNo. C302077 MUNICIPALITY SIGNATURE: Authorized ' / (signature) Name: Joshua Y. Horton Title: Supervisor MUNICIPAI,ITY ACKNOWLEDGMENT STATE OF NEW YORK COUNTY OF SUFFOLK On this lq'~ dayof Joshua Y. Horton, Supervisor ) ) SS.: ) p~/~,F~'x , 2003, before me personally came ortho Town of Southold , the political subdivision or agency thereof described in and which executed the above instrument: by authority of attached resolution of said political subdivision, and that he/she signed his/her name by that authority. IvlELANtE DOROSK, t~./~C/~ '~~ NOTARY PUBLIC, State of New York ~ No. 01DO4634870 ~ Qualified in Suffolk County.x ,.. ~' '~ u0mmksr~0n Expires September 30;~ olo NOTARY~LTBLIC Do not write below this line - -- for NYSDEC use only ....... STATE AGENCY CERTIFICATION: "In addition to the accep.tance of this contract, I also certify that original signature pages will be attached to other exact copies of this contract." STATE AGENCY SIGNATURE: By: Title: Date: ATTORNEY GENERAL'S APPROVAL STATE COMPTROLLER'S APPROVAL State Assistance Contract - Household Hazardous Waste (HltW') State Assistance Program Page 4 of 4 Schedule A'- Project Description and Budget Attachment to Contract C302077 between NYSDEC and the Town of Southold Project Description: The municipality agrees to conduct an environmentally sound program for collection and .diSPosal of household hazardous waste, including promotion of the household hazardous waste (HHW) collection program, during the teim of this contract (January I, 2001 - December 31,2003). All collection of HItW will be in accordance with a NYSDEC approved collection day plan or facility permit. Project Budget: Public Education Costs -.$5,000.00 HHW Collection/Disposal - $190,000.00 Total Eligible Cost: $195,000.00 State Share (50°/$ of Total Eligible Cos0:$97,500.00 Additional Contract Clauses: The Department will conduct a final eligibility review upon submittal of a request for reimbursement payment by the Municipality. Only expenses for collection and disposal of hazardous waste originating from households are eligible for reimbursement. The Municipality agrees to give the Department appropriate credit for its financial support of household hazardous waste collection in documents or publications or advertising, including the phrase, "The Town of Southold HHW collection program is partially financed with a grant from the NYS Department of Environmental Conservation" or an equivalent phrase. -- End of Schedule A -- APPENDIX A STANDARD CLAUSES ]?OR ALL I~EW YORK STATE CONTRACTS The parties to the attached contract, license. leas~, amendment or other agreement- of any kind 01creinaffer, "the contract" Or ~'thLq contract*) agree to ',1~ bound-by the following clauses which are hereby made a part Of the contract (the word "Contractor' herein refers to any party other than. tho State, whether a contractor, licenser, licensee; lessor, less~ Or any other pan'y): 1. EXECUTORY CLAUSE. In accordance with Section' 41 of the State Finance Law, the State shall have no liability under thi~ contract to the Contractor or to anyone else beyond funds appropriated and available for this conUaet. 2. NON, ASSIGNMENT. CLAUSE. In accordance with Section 138 Of the State'F'manc¢ Law, this contract may not be assigned:by the Contractor or. its fight, rifle or :mterest..therein assigned, transferred conveyed, sublet or otherwise disposed of without the previous consent~ in writing, Of the State and any atte~npts to assign the co~itract without thc State's written consent are null and void. The Contractor may, however, assign its right to receive payment without the State's prior written consent unless this contractconeeras Certificates of Participation pursuant to Article 5-A Of the State Finance law. 3. COMtrfROLLER'S APPROVAL In accordance with Section 112 of the State Finance Law (or, if this contract iR with the State University or City University of New York, Section 355 or Section 6218 of the Education Law), if this contract exceeds $10,000 (or the minimum thresholds agreed to by the Office 0fthe State Comptroller for certain S.U.N.Y. and C.U.N.Y. contracts), or if this is an amendment for any amount to a contract which, as so amended, exceeds said statutory amount, or if, by this contract, the State agrees to give something other than money when the value or reasonably estimated value of such consideration exceeds $15,000, it shall not be valid, effective or binding upon the State until it has been approved by the State Comp.troller and filed in his office. 4. WORKERS' COMPENSATION BENEFITS. In accordance with Section 142 of the Slate Finance Law, this contract shall be void and of no force and effect unless the Contractor shall provide and maintain coverage during the life of this contract for the benefit of such employees as are required to be. covered by the provisions of the Workers' Compensation Law. 5, NON-DiSCRIMINATION REQUIREMENTS. In accordance with Afficl¢ 15 Of the Executive Law (also knOwn as.the Human Rights Law) and all other State and Federal statutory and. constitutional non- discrimination provisions, tho Contractor will not discriminate against any employee or applicant for employment bemuse of race, creed, color, sex, national Ori~n~ age~ disability or marital status, Furthermore, ill a~ordance with Section 220~ of the labor Law, if this is a contract' for the construction, alteration or repair of any public building or public work Or for tho mamffacture, sale or 'distribution of materials, equipment or sapplies, and to tbo extent that this centract shall bo performed :within the State Of lqgw York,' Contractor agrees that neither it nor its 'subcontractors shall, by reason Of race, creed, color, disability, sex, or national origin:. (a) discriminat~ in hiring against .an3~ New York State citizen who is qualified and available to perform the work; or diserilnlnate agaimt or intimidate any empl0YeO hired for the performance ofwcrk under this:contract. Ifthis is a building senrice contract as defined in Section 230 of the Labor' Law, then, in accordance with Section 239 thereof; Contractor agrees that neither .it nor its subcontractors shall by reason of.lace, creed, color, national 0iigin. :l.,.;e..~-x.'. or dimbilily: (a) diqcriminate in luring ll~.;qilLM "lily 'q~',~, ~l ork SI;lie cifi~ca who is qualified and available to perform the .work; or (b) discriminate against or intimidate any employee hired for the .perfOrmance of work under this contract. Contractor is subject to fines of $50.00 per person per day fo~ any violation of Section 220-e or Section 239 as well as possible termination of this contract and forfeiture of all. moneys due hereunder for a second or subsequent violation. 6. WAGE AND HOURS PROVISIONS. If this is a public work centract covered by Article 8 of the Labor Law or a building service contract covered by Article 9 thereof, neither Contractor's employees nor the employees of its subcontractors may be required or permitted to work more than the number of hours or days stated in said statutes, except as otherwise provided Lathe Labor law and as set forth in prevailing wage and supplement schedules issued by the State Labor Department. Furthermore, Contractor and its subcontractors must pay at least the prevailing wage rate and pay or provide the prevailing supplements, including the premium rates for overtime pay, as determined by the State Labor Department in accordance with the Labor Law. 7. NON-COLLUSIVE BIDD1NGREQUIREMENT. In accordance with Section 139-d of thc State Finance Law, if this contract was awarded based upon the submission of bids, Contractor warrants, under penalty of perjury, that its bid was arrived at independenfl)~ and without collusion aimed, at reStrieting cempetition. Contractor further .warrants that, at the time Conlractor submitted its bid, an authorized and 'responsible person executed and delivered to the State a non-collUSive bidding certification on Contracter!s behaff. 8. INTE~ATIONAL BOYCOTF PROHIBITION. In accordance with Section 220-fofthe Labor Law and Section 139-h of the State Finance Law, if this' contract' exceeds $5,000, the ContraCtor agrees, as a material condition of the contract, .ghat neither the Contractor nor any substantially owned or affiliated person, firm, partnership or corporation has participated, is participating, or shall participate in an international boycott in violation of the federal Export Administration Act of i979 (50 USC App. Sections. 2401 et seq.)or regulations thereunder. If'such Cuntra~tor, or any of.the aforesaid affiliates of Contractor, is convicted.or is otherwise found to have violated said laws or regulations upon the final determination of the Uni~l Sts;~ Commerce Department or any other appropriate agency of the United States subsequent to the contractors execution, such contracl, amendment or moddication thereto shall be rendered forfeit and void. The Contractor Shall se notify the State Comptroller within five (5) business days of such COnviction, determination or disposition of appeal (2NYCRR 105.4), 9~ SET-OFF RIGItTS. The State.shall have all of its common law, equitable and statutory rights of set-off. These rights shall include, but not be limited to, the State's option to withhold for the purposes of set-off any moneys due to the Contractor under this contract up teeny amounts due and owing to the State with regard to this contract, any other contract with any State department or agency, including any contract for a term commencing prior to the term of this contract, plus any amounts due and owing to the State'for any other reason inCluding, without limitation, tax delinquencies, fee delinquencies or monetary penalties relative thereto. The State shall exercise its set-off rights in accordance with normal State practices including, in cases of set-off pursuant to an audit, the finalization of such audit by :the State agency, its representatives, or the State Comptroller. 10. RECORDS. The Contractor shall establish and maintain complete and accurate books, records, documents, accounts and other evidence directly pertinent to performance under this contract (hereinafter, collectively, "the Records"). The Records must be kept for the balance of the calendar year in which they were made and for six (6) additional years thereafter. The State Comptroller; the Attorney General and any other person or entity authorized to conduct an examination, as well as the agency or agencies inVolved in this contract, shall have access to the Records, during normal business hours at an office of the Contracter within the. State of~New York or, ff no sueh office is available, at a mutually agreeable and reasOnable venue within the State, for the term specified above for the purposes of inspection, auditing and copying, The State shall take reasonable steps to: protect from public disclosure any of the Records wlfich a~ exempt from disclosure under Section 87 of the Public Officers Law (the "Statute") provided that: (i).tho Contru~tor shall timely inform an. appropriate State official, in writing, that said records should not he disclosed; and (ii) said records shall be s~fficientiy identified; and (iii) designation of said records as exempt under the Statute is reasonable. Nothing contained herein shall diminish, or in any way adversciy affect, the State's right to discovery in any pending or future litigation. I 1. IDENTIFYING INFORMATION AND PRIVACY NOTIFICATION. (a) FEDERAL EMPLOYER IDENTIFICATION NUMBER and/or FEDERAL SOCIAL SE~ NUMBER. All invoices Or New York State standard, vouchers submitted for payment for the sale of goods or services orthe lease of real or personal property to a New York State agency must include the payee's identification numher~ i.e., the seller's or lessor's identification' number, The number is' either the payee's Federal emploYer identification number or Federal social security number, or both. such numbers when the paye~ has both such numbers. Failure to include this number or numbers may delay payment. Where the payee does not have such number or numbers, the payee, on its invoice or New York State standard voucher, must give the reason or reasons why the payee does not have such number or numbers. (B) PRIVACYNOTIFICATION. (1) The authority to request the above personal information from a seller of goods or services or a lesser of real or personal property, and the authority to maintain such information, is found in Section 5 of the State Tax Law. Disclosure of this information by the seller or lessor to the State is mandatory. The principal purpose for which the information is collected is to enable the State to identify individuals, businesses and others who have been delinquent in filing tax returnsor may have understated their tax liabilities and to generally identify persons affected by the taxes administered by the Commissioner of TaXation and Finance. The information will he used for tax administration purpose and for any other purpose authorized by law. (2) The personal iaformation is requested .by the purchasing unit of the agency contracting to purchane the goods or services or lease "the real or personal property covered by this contract or lease. The information is maintained in New York State's Central Accounting' SyStem by the-DireCtor of Accounting Operations, Office of the State Comptroller, AESOB, Albany, blew'York 12236. 12. EQUAL- .EMPLOYMENT OPPORTUNITIES FOR MINORITIES'AND WOMEN. In accordance with Section 312: of the. Executive law, ffthis contract is: (0 a Written agreement or purchase order instrument, providing for a total expenditure in excess Of $25,000~00, Whereby a contracting agency is committed, to expend Or does expend funds in return for labor, services, supplies, equipment, materialsor any combination of the foregoing,, to be performed for, or rendered or furnished to the:contraCting agenc3r,, or (ii): a written agrcement in excess of $100,000.00 whereby a contracting agency is committed to expend or does expend funds for the acquisition,, constraction, demolition, mplacementi:major repair ot renovation of real property and improvements thereon; or (iii) a. vaitten agreement in excess of $100~000.00 whereby the owner of.a State assisted housing project is cemmitted to expend or does expend funds for the aequisiti.on, construction, demolition, replacement, major repair or renovation of real property and improvements th~reoafor such project, then: (a) The Contractor will not discriminate against employees or applicants for employment because'of race, creed, color, nationa! Origin, sex, age~ disability or marital status, and 'will undeRake or continue existing prognuns '0f affirmative action to ensure that minority group members and women are afforded equal employment opportunities-without discrimination. Affirmative action shall mean recruitment,- employment, job assignment, promotion, upgradings, demotion, transfer, layOff, or termination and rates of pay or other forms of compensation; (b) at the request of the .contracting agency, the Contractor shall request each employment agency, labor union, or authorized representative of workers with which it has a collective bargaining or other agreement or understanding, to furnish a written statemeut that such employment agency, labor union or representative:will not discriminate on the basis of race, creed, color, national origin, sex, age, disability or marital status and that such union or representative will affirmatively cooperate in the implementation of the contractor's obligations herein; and (c) the Contractor Shall state, in all solicitations or advertisements for employees, that, in the performance of the State contract, all qualified applicants will he afforded equal employment opportunities without discfimimtion because of race, creed, color, national origin; sex, age, disability or marital status. Contractor will include the provisions of ia, %", and "~6v above, in every subcontract over $25,000.00 for the construction, demolition, replacement, major repair, reno~iafion, planning or design of real property and improvements thereon (the Work) except where the Work is for the beneficial use' of the Contractor. Section 312 does not apply to: (i) work, goods' or services'unrelated to this contract; or (ii) employment outside New York State; or (iii) balaking services, insurance policies or the.sale of securities. Tho State shall consider ,compliance by a contractor or subcontractor with the requirements of any federal law concerning equal employment opportunity Which effectuates the purpose of this section. The contracting agency shall determine Whether the imposition of the requirements of tho provisions hereof duplicate or conflict with any such federal law and if such duplication or conflict exists, the contracting agency Shall waive the applicability of Section 312 'to the extent of such duplication or conflict. Contractor will comply with all dul~ promulgated and lawful rules and regulations of the Division of Minority and Women's Business Developmeut pertainiug hereto. 13. CONFLICTING iTERMS. In the event 'of a conflict between the terms of the contract 0nchiding any and all atlaclunents thereto and amendments thereoO and the terms of this Appendix A, the terms of this Appendix A shall COntrol. 14. GOVERI,fllqG LAW. This contract shall 'he governed by the laws of the State of New York except where the Federal supremacy clause requires otherwise. 15. LATE PAYMENT. Timeliness of payment and any interest to be paid to Contractor for late payment shall be governed by Article XI-A of the State Finance Law to the extent required by law. 16. NO ARBITRATION. Disputes involving this contract, including the breach or alleged breach thereof, may not be submitted to binding arbitration (except where statuterily authorized), but must, instead, be heard in a court of competent jurisdiction of the State of New York. 17. SERVICE OF PROCESS. In addition to the methods of service allmved by the State Civil Practice Law & Rules (" CPLR"), Contractor hereby consents to service of process upon it by registered or certified mail, return receipt requested. Service hereunder shall be complete upon Contractor's actual receipt of process or upon the State's receipt of the reama thereof by the United States Postal Service as refik~l or undeliverable~ Contractor must promptly notify the State, in writing, o£ each and every change of address to which service of process canbe made. Service by the State to the last known address shall be sufficient: Contractor will have thirty (30) calendar days after service hereunder is complete in wMch-to respond. 18. PROHIBITION ONPURCHASE OF TROPICAL HARDWOODS. The Contractor certifies und warrauts that aH wood products .to be used under this contract award will be in accordance with, but not limited to, the specifications and provis'mas of State Finance Law §165. (Use of Tropicul Hardwoods) which prohibits purchase, and .use of tropical hardwoods, unless specifically exempted,, by the State or any governmentalagency or political subdivision or public benefit corporation. Qualification.for an exemption under fids law will be tho responsibility of the contractor to establish to meet with the approval of the State. In addition, when any portion of fids contract -involving the use of.woods, whether supply or installation; -is to' be performed by any subcontractor, the prime Contractor will indicate and certify in the submitted bid proposal that the subcontractor has been hfformed and is in compliance with specifications and provisions regarding use of tropical hardwoods as detailed in §165 State Finance Law. Any such use must meet with the approval of the State, otherwise, the bid' may not. be considered responsive. Under bidder certifications, proof of qualification for exemption will be the responsibility of the Contractor to meet with th~ approval of the State. 19. MACBRIDE FAIR EMPLOYMENT PRINCIPLES. In accordance with the Mac, Bride Fair Employment Principles (Chapter 807 of the Laws of 1992), the Contractor hereby stipulates that the Contractor either (a) has no business operations in Northern Ireland, or Co) shall take lawful steps in good .. faith to conduct.any business operations in Northern Ireland in accordance with the MacBrid¢ Fair Employment Principles (as described in Section 165 of the New York State Finance Law), and shall permit independent monitoring of compliance with such principles. 20. OMNIBUS PROCUREMENT ACT OF 1992. It is the policy of New York State to maximize opportunities for the participation of New York State business enterprises, including minority and women- owned business enterprises as bidders, subcontractors and suppliers on its procurement contracts. Information on the availability of New York State subcontractors and suppliers is available from: Department of Economic Development DiviSion for Small Bus'mess 30 South Pearl street Albany, New York 12245 Tel. 518-292-5220 A directory of certified minority and women-owned business enterprises is available from: Department of Econ0mic Development Minority and. Women's Basiness Development Division 30 South Pearl Street Albany, New York 12245 ht tp://www, empir~ state, ny. us The Omnibus Procurement Act of 1992 requires that by. signing this bid proposal or contract~ as.applicablel Contractors certify that whenever the total bid amount is greater ihan $1 million: (a) The Contractor baa made reasonable efforts to encourage the participation of New York State Business Enterprises as suppliers and subcontractors, including certified minority and women-owned business enterprises, on this projeet, and has retained the' documentation of these efforts to be provided upon request to the State; fo) The Contraeter has complied with the Federal Equal Opportunity Act of 1972 (P.L. 92-261), as amended; (c) The Contractor agrees to'make reasonable efforts to provide notification to New York State residents of employment opportunities on fids project ttu'ough listing any such positioas with the Job Service Division of the New York State Department ff Labor, or providing such notification in such manner as is consistent with existing collective bargaining contracts or agreements. The Contractor agrees to document these efforts and to provide said documentation to the State upon request; and (d) The Contractor acknowledges notice that thc State may seek to obtain offset credits from foreign c6untries .as a result of this contract and agrees to cooperate with the State in these efforts. 21. RECIPROCITY AND SANCTIONS PROVISIONS. Bidders are hereby notified that if their principal place of business is located in a country, nation, province, state or political subdivision that penalizes New York State vendors, and if the goods or services they offer will be substantially produced or performed outside New York State, the Omnibus Procurement Act 1994 and2000 amendments (Chapter 684 and Chapter 383, respectively) require that they be denied contracts which they would otherwise obtain. Contact the Department of Economic Development, Division for Small Business, 30 South Pearl Street; Albany New York 12245, for a current list of states subject to fids provision. Revised November 2000 Standard Clauses for All New York State Department of Environmental Conservation Contracts The parties to the attached contract, license, lease, grant, amendment or other agreement of any kind (hereinafter "the contract" or "this contract") agree to be bound by the following clauses which are hereby made a part of the contract. The word "ConWactor" herein refers to any party to the Contract, other than the New York State Department of Environmental Conservation (hereinafter "Department"). rll. Conflict of Interest: (a) Or~auizationalConflictoflnterest Tothebestofthe Contractor's knowledge and belief, the Contractor warrants that lhere are no relevant facts or circumstances which could give rise to an organizational conflict of interest, as hercqn defined, or that the Contractur has disclosed all such relevant information to the Department. Postponement, Suspension, Abandonment or Termination by the Department: The Depm tment shall have the fight to postpone, suspend, abandon or terminate this contract, and such actions shall in no event be deemed a breach of contract. In the event of.any termination, postponement, delay, suspension or abandonment, the Contractor shall immediately stop work, take steps to incur no additional obligations, and to limit further expenditures. Within 15 days of receipt of notice, the Contractor shall deliver to the DeparOnent all data, reports, plans, or other documentation related to the performance of this conWact, including but not limited to source codes and specifications, guarantees, Warranties, as-built plans and shop drawings. In any of these events, the Department shall make settlement with the Contractor upon an equitable basis as determined by the Department which shall fix the value of the work which was performed by the Contractor prior to the postponexnent, suspension, abandonment or termination of this contract. This clause shall not apply to this contract if the contract contains other provisions applicable to postponement, suspeasion or termination of the contract. II. Indemnification and Holdharmless: The Contractor agrees that it will indemnify and save harmless the Department and the State of New York from and against all losses from claims, demands, payments, suits, actions, recoveries and judgments of every nature and description brought or recovered against it by reason of any omission or tortious act of the Contractor, its agents, employees, suppliers or subcontractors in the performance of this contract. The Department and the State of New York may retain such monies from the amount due Contractor as may be necessary to satisfy any claim for damages, costs and the like, which is asserted against the Department and/or the State of New York. (1) An organizational conflict of interest exSsts when the nature of the work to be performed trader this .contract may, without some restriction on future activities, impair or appear to impair the Contractors objectivity in performing the work for the Depm intent: (2) The Contractor agrees that if an actual, or potential organizational conflict of interest is discovered at any time after award, whether before or duringperformance, the Contractor will immediately make a full disclosure in writing to the Department. Ttds.disclosure shall include a description of actions which the Contractor has taken or proposes to take, after consultation with the Department, to avoid, mitigate, or minimize the actual or potential conflict. (3) To the extent that the work under this contract requires access to personal, proprietary or confidential business or financial data of persons or other companies, and as long as such data remains' proprietary or confidential, the Contractor shall protect such data from unauthorized use and disclosure and agrees not to use it to compete with such companies. (b) Personal Conflict of Interest: The followingprovisions with regard to management or professional level employee personnel performing under this contract shall apply until the earlier of the termination date of the affected employee(s) or the duration of the contract. App. B 4/17/00 PaGe 1 (1) (2) (3) 4') A personal conflict of interest is defined as a relationslfip of an employee, subcontractor employee, or consultant with an entity that may · impair or appear to impair the. objectivity of the employee, subcontractor employee, or consultant in performing the contract work. The Contractor agrees to notify the Department immediately of any actual, orpotential personal conflict of interest with regard to any such person working on or having access to information regarding this . contract, as soon as Contractor becomes aware of 'such conflict. The Department will notify the , Contractor of the appropriate action to be taken. The Contractor agrees to advise all management or professional level employees involved in the work of this contract, that they must report any personal conflicts of interest to the Contractor. The ,' Contractor mustthen advise the Department wtfich will advise the Contractor oftbe appropriate action to be taken. Unless waived by the Department, the Contractor shall cextify annually that, to the best of the Contractor% knowledge and belief, all actual, apparent or potential conflicts of interest, both personal and organizational, as defined herein, have been' reported .to the Department. Such certification must be signed by a senior executive of the Contractor and submitted in accordance with instructions provided by the Department. · Along with the annual certification, the Contractor shall also submit an update of any changes in any conflict of interest plan submitted with its proposal for this contract. The initial certification shall cover the one-year period from the date ofcentmct award, and all subsequent certifications shall cover · successive annual periods thereafter. The certification is to be.submitted no later than 45 days after the close of the previous certification period covered. In performing this contract, the Contractor recognizes that its employees may have access to data, either provided by the Department or first generated during contract performance, of a sensitive nature which should not be released without Department approval. If this situation occurs, the Contractor agrees to obtain confidentiality agreements from all affected employees working on requirements under this contract including subcontractors and consultants. Such agreements shall contain provisions which App. B 4/17/00 Pa~e 2 stipulate that each employee agrees not to disclose, either whole or in part, to any entity extemalto theDepadment, Department ofltealth orthe New York State Department of Law, any information-or data provided by the Department or fn'st generated by the Contractor under this contract, any site-specific cost information, or any enforcement strategy without first obtaining the written permission of the Deparlment. If a Contractor, through an employee or otherwise, is subpoenaed to testify or produce documents,~ which could result in such disclosure, the Contractor must provide hsmsediate advance notification to the Department so that the Depmiment can authorize such disclosure or have the opportunity to take action to prevent such disclosure. Such agreements shall be effective for the life of the contract and for a period of five (5) years after completion of the contract. (c) Remedies - The Department may terminate this contract in whole or in part, if it deems such termination necessaryto avoid an organizationalorpersonal conflict of interest, or an unauthorized disclosure of informafion~ .If the Contractor fails to make required disclosures or misrepresents relevant information to the Department. the Department may te.,,;nate the contract; or pursue such other remedies as may be permitted by the terms of Clause I of this Appendix or other applicable provisions of this contract regarding terminatien~ (d) The Contractor will be ineligible to make a proposal or bid on a contract for which the Contractor has developed the statement of work or the solicitation package (e) The Contractor agrees to insert in each subcontract or consultant agreement placed hereunder (except for subcontracts or consultant agreements for well drilling, fence erecting, plumbing, utility hookups, security guard services, or electrical services) provisions which shall conform substantially to the language of this clause, including this paragraph (e), unless otherwise authorized by the Depmhnent If this is a contract for work related to action at an inactive hazardous waste site, the following paragraph shall apply to those Contractors whose work requires the application of professional judgment: It does not apply to construction contracts. (f) Due to the scope and nature of this contract, the Contractor shall observe the following restrictions on furore hazardous waste site contracting for the duration of the contract. Th~ Contractor, during the life of the work assignment and for a period of three (3) years after the completion of the work assignment, agrees not to enter into a contract with or to represent any party with respect to any work relating to remedial activities or workpe~taining m a site where the Contractor previously performed work for the Department under this contract without the prior written approval of the Depathnent. VI. Independent Contractor: The Contractor shall have the status of an independent contractor. Accordingly, the Contractor agrees that it will conduct itself in a manner consistent with such status, and that it will neither hold itself out as, nor claim to be, an officer or employee of the Depat huent by reason of this contract. It further agrees that it will not make any claim, demand or application to the Department for any right or privilege applicable to an officer or employee of the Depadment, including but not limited to worker's compensation coverage, unemployment insurance benefits, social security coverage, or retirement membership or credit. VII. Article 15-A Requirements: (5) The Contractor agrees in advance that if any bids/proposals are submitted for any work for a third party that would require written approval of the Department prior to entering into a contract because of the restrictions of this clause, then the bids/proposals are submitted at the' Contractors own risk, and no claim shall be made against the Depathnent to recover bid/proposal costs as a direct cost whether the request for authorization to enter into the conwact is denied or approved. The terms contained in this clause shall have the definitions as given in, and shall be c0ustrued according to the intent of Article 15-A of the Executive Law, 5 NYCRR Part 140, et. seq., Article 52 of the Environmental Conservation Law and 6 NYCRR Part 615, et. seq., as applicable, and any goals established by this clause are subject to the intent of such laws and regulations. (a) If the maximum contract price herein equals or exceeds $25,000, and this contract is for labor, services, supplies, equipment, or materials; or IV. Requests for Payment: All requests for payment by the Contractor must be submitted on forms supplied and approved by the Department. Eachpayment request must contain suchitems of information and supporting documentation as are required by the Department, and shall be ali-inclusive for the period of time covered by the payment request. V. Compliance with Federal Requirements: To the extent that federal funds are provided to the Contractor or used in paying the Contractor under this contract, the Contractor agrees that it will comply with all applicable federal laws and regulations, including but not limited to those laws and regulations under which the Federal funds were authorized. The Contractor further agrees to insert in any subcontract hereunder, provisions which shall conform substantially to the language of this clause. Co) If the maximum conwact price herein equals or exceeds $I00,000 and this contract is for the acquisifion~ construction, demolition, replacement, major repair or renovation of real property and improvements thereon; then (c) The affn-mative action provisions and equal employment opportunity provisions contained in this paragraph and paragraphs (d) and (e) of this clause shall be applicable within the limitations established by Executive Law §§312 and 313 and the applicable regulations. (1) The Contractor ~s required to make good faith efforts to subcontract at least 18.8% of the dollar value of this contract to Minority Owned Business Enterprises (MBEs) and at least 20.5% of such value to Women Owned Business Enterprises (WBEs). (2) The Contractor is required to make good faith efforts to employ or contractually require any Subcontractor with whom it contracts to make good faith efforts To employ minority group members for at least 10.0% of, and women for au least 10.0% of, the workforce hours required to perform the work under this contract. App. B 4/17/00 Pa~e 3 (3) The Contractor is required to make good faith efforts to solicit the meaningful participation by enterprises identified in the NYS Directory of Certified Businesses provided by: Empire State Development Corp. Div. Minority & Women's Business Develop. 30 South Pearl Street Albany, New York 12245 Phone: (518) 292-5250 Fax: (518) 292-5803 and Empire State Development Corp. 633 Third Avenue New York~ NY 10017 Phone: (212) 803-2414 Fax: (212) 803-3223 intemet: www.empire.state.ny, us\esd.htm (d) The ContraCtor agrees to include the provisions set forth in paragraphs (a), CO) and(c) above anti paragraphs (a), Co), and(c) of clause 12 of Appendix A in every subcontract in such a manner that the provisions will be binding upon each Subcontractor as to work under such subcontract. For the purpose of this paragraph, a "subcontract" shsllmean an agreement providing for a total expenditure in excess of $25,000 for the construction, demolition, replacement, major repair, renovation, planning or design of real property and improvements thereon in which a portion ofthe Contractor's obligation under a State contract is tmdextaken or assumed. (e) The Contractor is required to make good faith efforts to utilize the MBE/WBEs identified in the utilization plan to the extent indicated in such plan, and otherwise to implement it according toits tm-ms. The.Contractor is requested to report on such ;.,?lementation periodically as provided by the contract, or annually, whichever is more fi'equent. VIII. Compliance with Applicable Laws: (a) Prior to the commencement of any work under this contract, the Contractor is required m meet all legal requirements necessary in the performance of the contract. This includes but is not limited [o compliance with all applicable federal, state and local laws and regulations promulgated thereunder. It is the Contractor's responsibility to obtain any necessarypermits, or other anthorizafions. By signing this contract, the Contractor a ffn-matively represent s that it has comlJlied with said laws, unless it advises the Department otherwise, in writing. The Department signs this contract in reliance upon this representation. (b) During the term of this contract, and any extensit~ns thereof; the Contractor must remain in compliance with said laws. A faille to notify the Department of noncompliance of which the Contractor was or should have been aware, may be considered a material breach of this contract. IX. Dispute Resolution: The parties agree to the following steps, or as many as are necessary to resolve disputes between the Deparlment and the Contractor. (a) The Contractor spec'ffically agrees to submit, in the. first instance, any dispute relating to this contract to the designated individual, who shall tender a written decision and furnish a copy thereof to the Contractor. (1) The Contractor must request such decision in writing no more than fifteen days after it knew or should have known of the facts which are the basis of the dispute. (2) The decision of the designated individual shall be the final agency determination; unless the Contractor files a written appeal of that decision with the designated appeal individual ("DAI") within twenty days of receipt of that decision. .ii (b) Upon receipt of the written appeal, the DAI, will review the record and decision. Following divisional ' procedures in effect at that time, the DAI will take one of the following actions, with written notice to the Contractor. (1) Remand the matter to the program staff for further negotiation or information if it is determined that the matter is not ripe for review; or (2) Determine that there is no need for further action, and tha! the determination of the designated individual is confmued; or (3) Make a determination on the record as it exists. (c) The decision of the DAI shall be the final agency decision unless the Contractor files a written appeal of that decision with the Chair of the Contract Review Committee ("CRC") within twenty days of receipt of that decision. App. B 4/17/00 Page 4 The designated individual to hear disputes is: Department of Environmental Conservation Division of Solid & Hazardous Materials William C. Colden, P.E., Bureau Director Bureau of Waste Reduction & Recycling 625 Broadway Albany, NY 12233-7253 Telephone: (518) 402-8678 The designated appeal individual to review decisions is: Department of Environmental ConserVation Division of Solid & Hazardous Materials David A. Blackman, Assistant Director 625 Broadway Albany, NY 12233-7250 Telephone: (518) 402-8711 The Chair of the Contract Review Committee is: Department of Environmental Conservation Richard IC Randles, Chair Contract Review Committee 625 Broadway Albany, NY 12233-5010 Telephone: (518) 402-9237 (d) Upon receipt of the written appeal, the Chair of the CRC, in consultation with the members 6fthe CRC and the Office of General Counsel, will take one of the following actions, or a combination thereof, with written notice to the Contractor. (1) Remand the matter to program staff for additional fact finding, negotiation, or other appropriate action; or (2) Adopt the decision of the DAl; or (3) Consider the matter for review by the CRC in accordance with its procedures. (e) Following a decision to proceed pursuant to (d) 3, above, the Chair of the CRC shall convene a proceeding in accordance with the CRC's established contract dispute resolution guidelines. The proceeding will provide the Contractor with an oppommity to be heard. (f) Follo~ving a decision pursuant to (d) 2 or (d) 3, the CRC shall make a written recommendation to the Assistant Commissioner for Administration who shall render the final agency determination. (g) At any time during the dispute resolution process, and upon mutual agreement of the parties, the Office of Heatings and Mediation Services (OHMS) may be requested m provide mediation se~ices or other appropriate means to assist in resolving the dispute. Any f'mdings or recommendations made by the OHMS will not be binding on either party. (h) Final agency detennlmtions shall be subject to review only pursuant to Article 78 of the Civil Practice Law and Rules. (i) Panding final determination ora dispute hereunder, the Contractor shall proceed diligently with the performance of the Contract in accordance with the decision of the designated individual. Nothing in this Contract shall be construed as making fmal the decision of any administrative officer upon a question of law. (j) (1) Notwithstanding the foregoing, at the option of the Contractor, the following shall be subject to review by the CRC: Disputes arising under Article 15-A of the Executive Law (Minority and Women Owned Business participation), the Department's determination with respect to the adequacy of the Contractors Utilization Plan, or the Contractors showing of good faith efforts to comply therewith. A request for a review before the CRC should be made, in writing, within twenty days of receipt of the Depattmenfs determination. (2) The CRC will promptly convene a review in accordance with Axticle 15-A of the Executive Law and the regulations promulgated thereunder. X. Labor Law Provisions: (a) When applicable, the Contractor shall post, in a location desiguated by the Department, a copy of the New York State Department of Labor schedules of prevailing wages and supplements for this project, a copy of all re- determinations of such schedules for the project, the Workers' Compensation Law Section 51 notice, all other notices requked by law to be posted at the site, the Department of Labor notice that tiffs project is a public work project on which each worker is entitled to receive the prevailing wages and supplements for their occupation, and all other notices which the Department directs the Contractor to post. The ConUactor shallprovide a surface for such notices which is satisfactory to the Department. The Con~xactor shall maintain such notices in a legible manner and shall replace any notice or schedule Which is damaged, defaced, illegible or removed for any reason. Contractor shall post such notices before commencing any work on the site and shall maintain such notices until all work on the site is complete. App. B 4/17/00 Page 5 (b) When appropriate, contractor shall distribute to each worker for this Contract a notice, in a form provided by the Department, that this project'is a public work project on which each worker is entitled to receive the prevailing wage and supplements for the occupation at which he' or she is working. W0rker includes employees of Contractor and all Subcontractors and all employees of suppliers entering the site. Such notice shall be distributed to each worker before they start perfonuing any work of this contract. At the time of distffoufion, Contractor shall have each worker sign a statement, in a form provided by the Depal'hnent, certififi_ng that the worker has received the notice required by this section, which signed statement shall be maintained with the payroll records required by the following paragraph (c). (c) Contractor shall maintain on the site the original certified payrolls or certified transcripts thereof which Contractor and all of its Subcontractors are required to maintain pursuant to the New York Labor Law Section 220. Contractor shall maintain with the payrolls or transcripts thereof, the statements signed by each worker pursuant to paragraph (b). (d) Within thirty days of issuance of the first payroll, and every thirty days thereafter, the Contractor and every subcontractor must submit a transcript of the original payroll to the Department, wkich transcript must be subscribed and affn'med as tree under penalty of perjury. XI. Offset: In accordance with State Law, thc Depathtsent has the authority to administratively offset any monies due it from the Contractor, from payments due to the Contractor under this contract. The Department may also (a) assess interest or late payment charges, and collection fees, if applicable; (b) charge a fee for any dishonored check; (c) refuse to renew certain licenses and permits. XII. Tax Exemption: XIV. Equipment: Any equipment purchased with funds provided under this contract, shall remain the property of the Department, tmless otherwise provided in the contract. The Contractor shall be liable for all costs for maintaiuing the property in good, usable condition. It shall be returned to the Department upon completion of the contract, in such condition, unless the Department elects to sell the equipment to the Contractor, upon mutually agreeable terms. XV. Inventions or Discoveries: Any invention or discovery f~rst made in performance of this Contract shall be the property of the Department, unless otherwise provided in the contract. The Conlractor agrees to provide the Depattment with any and all materials related to this property. At the Department's option, 'the Conlractor may be granted a non-exclusive license. XVI. Patent and Copyright Protection: If any patented or copyrighted material is involved in or results from the performance of this Contract, this Article shall apply. (a) The Contractor shall, at its expense, defend any suit instituted against the Depathnent and indemnify the Department against any award of damages and costs made against the Department by a final judgment of a court of 'last resort based on the claim that any of the products, services or consumable supplies furnished by the Contractor. under this Contract infringes any patent, copyright or other proprietary right; provided the Department gives the Contractor: (1) prompt written notice of any action, claim or threat of infringement suit, or other suit, and Pursuant to Tax Law Section 1116, the State is exempt from sales and use taxes. A standard state voucher is sufficient evidence thereof. For federal excise taxes, New York's registration Number 14740026K covers tax-free transactions under the Internal Revenue Code. XIII. Litigation Support: In the event that the Department becomes involved · in litigation related to the subject matter of this contract, the Contractor agrees to provide background support and other litigation support, including but not limited to depositions, appearances, and testimony. Compensation will be negotiated and based on rates established in the contract, or as may otherwise be provided in the contract. App. (2) the opportunity to take over, settle or defend such action at the Contractor's sole expense, and (3) all available information, assistance and authority necessary to the action, at the Contractor's sole expense. The Contractor'shall control the defense of any such suit, including appeals, and all negotiations to effect settlement, but shall keep the Department fully informed concerning the progress of the litigation. (b) If the use of any item(s) or parts thereof is held to infringe a patent or copyright and its use is enjoined, or Contractor believes it will be enjoined, the Contractor shall have the right, at its election and expense to take action in the following order of precedence: B 4/17/00 Page 6' 0) procure for the Depmi~nent the right to continue using the same item or parts thereof}, Depmhaent has any direct or indirect interest by lic~se or otherwise. (2) modify the same so that it becomes non-infringing and of at least the same quality and performance; (3) replace the item(s) or parts thereof with non- infringing items of at least the same quality and performance; if none of the above remedies are available, discontinue its use and eliminate any future charges or royalties pertaining thereto. The Contractor will buy back the infringing product(s) at the State's book value, or in the event of a lease, the parties shall terminate the lease. If discontinuation or elimination results in the Contractor not being able to perform the Contract, the Contract shall be terminated. (c) In the event that an action at law or in .equity is commenced against the Department arising out of a claim that the Department's use of any item or material pursuant to or resulting from this Contract infringes any patent, copyright or proprietary right, and such action is forwarded by the Depadment to the Contractor for defense and : indemnification pursuant to this Article, the Dep~utment shall copy all pleadings and documents forwarded io the : Contractor together withthe forwardingcorrespondence and · a copy of this Contract to the Office of the Attorney General of the State of New York. If upon receipt of such request for defense, or at any time thereafter, the Contractor is of the opinion that the allegations in such action, in whole or in part, are not covered by the indenmification set forth in this Article, the Contractor shall htanediately notify the Department and the Office of the Attorney General of the State of New York in writing and shall specify to what extent the Contractor believes it is and is not obligated to defend and indemnify under the terms and conditions of this Contract. The Contractor shall in such event protect the interests of the Department and State of New York and- secure a continuance to penuit the State of New York to appear and defend its interests in cooperation with Contractor as is appropriate, including any jurisdictional defenses which the Department and State shall have. (d) The Contractor shall, however, have no liability to the Department under this Article if any infringement is based upon or arises out of: (1) compliance with designs, plans, or specifications famished by or on behalf of the Department as to the items; (2) alterations of the items by the Department; (3) failure of the Department to use updated items provided by the Contractor for avoiding infringement; (4) use of items in combination with apparatus or devices not delivered by the Contractor; (5) use of items in a manner for which the same were neither designed nor contemplated; or (6) a patent or copyright in which the Department or any affiliate or subsidiary of the App. B 4/17/00 Page 7 (~) The foregoing states the Contractors entire liability for, or resulting from, patent or copyright infringement or claim thereof. XVH. ForceMajeure: The term Force Majeure shall include acts of God, work stoppages due to labor disputes or strikes, fires, explosions, epidemics, riots, war rebellion, sabotage orthe like. If a failure of or delay in performance by either patty' results' from the occurrence of a Force Majeure event, the delay shall be excused and the time for performance extended by a period equivalent to the time lost because of the Force majeure event, if and to the extent that: (a) The delay or failure was beyond the control of the party affected and not due to its fault or negligence; and Co) The delay or failure was not extended because of the affected party's failure to use all reasonable diligence to overcome the obstacle or to resume performance immediately after such obstacle was overcome; and (c) The affected party provides notice within (5) days of the onset of the event, that it is invoking'the protection of this provision. XVIII. Freedom of Information Requests: The Contractor agrees'to provi& the Depathnent with any records which must' be released in order to. comply with a request pursuant to the Freedom of Information Law. The Department will provide the contractor with an opportunity to identify material which may be protected from release and to support its position. XIX. Precedence: In the event ora conflict between the terms of this Appendix B and the terms of the Contract Cmchiding any and all attachments thereto and amendments thereof, but not including Appendix A), the terms of this Appendix B shall control. In the event ora conflict between the terms of this Appendix B, and the terms of Appendix A, the terms of Appendix A shall control.