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HomeMy WebLinkAboutWaste Reduction/Recycling ProgELIZABETH NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall, 53095 Main Road PO Box 1179 Southold, NY 11971 Fax (631) 765-6145 Telephone: (631) 765 - 1800 southoldtown.northfork.net RESOLUTION # 2006-125 Resolution ID: 1516 Meeting: 01/17/06 07:30 PM Department: Solid Waste Management District Category: Contracts, Lease & Agreements THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2006-125 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON JANUARY 17, 2006: RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs Sul~ervisor Scott A. Russell to execute two Munieil~al Waste Reduction and Recvelin~ State Assistance Proltram contracts (Nos. C302337 and C302644) with the New York State Department of Environmental Conservation for receipt of grants totaling $1,539,815 in reimbursement of certain expenses related to the development and operation of the Town's Yard Waste Compost Facility in Cutchogue, all in accordance with the approval of the Town Attorney. Elizabeth A. Neville Southold Town Clerk ELIZABETH A. NEVILLE TOWN CLERK HEGISTRA~ 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 FOLLOV~ING RESOLUTION NO. 282 OF 2003 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON MAY 6, 2003: WHEREAS, the State of New York provides financial aid for municipal waste reduction and municipal recycling projects; and WHEREAS, the Town of Southold herein called the (Legal Name of Applicant) MUNICIPALITY, has examined and duly considered the applicable laws of the State of New York and the MUNICIPALITY deems it to be in the public interest and benefit to file an application under these laws; and WHEREAS, it is necessary that a Contract by and between THE PEOPLE OF THE STATE OF NEW YORK, herein called the STATE and the MUNICIPALITY be executed for such STATE Aid; NOW, THEREFORE, BE IT RESOLVED BY The Town Board of the Town of Southold (Governing Body of Applicant) 1. That the filing of an application in the form required by the State of New York in conformity with the applicable laws of the State of New York including all understanding and assurances contained in said application is hereby authorized. 2. That James Bunchuck (TITLE of Applicant's designated Authorized Representative) is directed and authorized as the official representative of the MUNICIPALITY to act in CERTIFICATE OF RECORDING OFFICER That the attached Resolution is a true and correct copy of the Resolution, authorizing the signing of an application for State Aid, authorizing the signing of a State Contract, and assuring funding of the municipal portion of the cost of the project as regularly adopted at a legally convened meeting of the Town Board of the Town of Southold (Name of Governing Body of the Applicant) duly held on the 6th day of May and further that such Resolution has been fully recorded in the Town Board Minutes (Title of Record Book) In witness whereof, I have hereunto set my hand this of May , ~.__. 2003. , ~) 2__003 in my office. 9th day If the Applicant has an Official Seal, Impress here. Signature of Recording Officer Southold Town Clerk Title of Recording Officer C302644 CONTRACT FOR STATE ASSISTANCE MUNICIPAL WASTE REDUCTION AND RECYCLING PROGRAM (ENVIRONMENTAL PROTECTION FUND AND THE CLEAN WATER/CLEAN Am BOND ACT OF 1996) This Contract by and between the New York State Department of Environmental Conservation (herein referred to as the "Department") and the Town of Sonthold (herein referred to as the "Municipality") with offices located at Town Hall, 53095 Main Road, P.O. Box 1179, Southold, New York 11971 WITNESSETH: WItEREAS, the Department is authorized by sections 54-0705 and 56-0405 of the Environmental Conservation Law and the 6 NYCRR Part 369 Regulations to enter into contracts on behalf of the State to provide state assistance to municipalities for Municipal Waste Reduction & Recycling Projects; and WItEREAS, the Municipality has applied for state assistance, 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 WItEREAS, 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 state assistance; and WItEREAS, 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 WItEREAS, the Municipality has the legal status necessary to enter into this contract; and WltEREAS, 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. NOW THEREFORE, 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, 2006 and, except with respect to paragraph 7, shall terminate two (2) years from that date. The Department agrees to make aTeailable to the Municipality a sum not to exceed Thirty Thousand Dollars and No Cents ($30,000.00) 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 Project. Eligible costs are those costs, as defined in 6 NYCRR Part 369, that are incurred by the Municipality during the term of this contract, and which are included in Schedule A. The Municipality shall spend funds paid to it under this contract in strict accordance with Schedule A, and the budget contained therein. State Assistance Contract - Municipal Waste Reduction and Recycling Program Page 1 of 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. The Municipality agrees to keep adequate records and make accurate reports to the Department: The Municipality agrees to provide progress reports in the format and within the schedule required by the Department. b. The Municipality agrees to provide evaluations of the success of such Project. The Municipality agrees to report on solid waste reduced or recycled by completing annual surveys conducted by the Department documenting tonnages of recyclable materials collected and amounts of solid waste reduced within the boundaries of the Municipality. The Municipality agrees to report on the marketing of recyclable products or compost products generated by the Project, as required by the Department. The Municipality shall issue a Certificate of Completion of the Project and a final voucher to the Department within 30 days of the completion of said Project. The Department will conduct a final review of the Project, which may include but not be limited to, on-site inspection, within 60 days of receiving such notice at a time satisfactory to the Department. Payment to the Municipality is conditioned upon the Depattment's review and acceptance of these reports. 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 his/her 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 Albany, New York 12233-7253 ATTENTION: Director Municipalit~ Town of Southold P.O. Box 962 County Road #48 & Zack's Lane Cutchogue, NY 11935 ATTENTION: Solid Waste Coordinator Notices so delivered or sent shall be deemed for all purposes as notice to all persons who are parties to this Contract as Department or Municipality. 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 and 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 Project 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 Department. 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. State Assistance Contract - Municipal Waste Reduction and Recycling Program Page 2 of 4 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 'S~f~te.v. 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. 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. The Municipality agrees to not sell, lease or otherwise dispose of, or use lands, equipment, or facilities acquired under this contract for any purpose inconsistent with the Project under which such land, equipment 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 ~e Municipality. The Municipality agrees to expend these funds strictly in accordance with the attached .. , j Schedule A, the provisions of the New York Staie Environmental Conservation Law, the State Finance Law, the General Municipal Law, Appendices A and B, and all applicable rules and regulations. If the Municipality fails to comply with any of these requirements, the Depa~'tment 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 H 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 AFdcle 4A of the New York State Public Buildings Law and relevant sections of the New York State Uniform Fire Prevention and Building Code. 12. Facilities developed or equipment purchased pursuant to this Contract, upon request, shall be made available for inspection by the Department at any reasonable time. t 3. 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. 14. 15. Title to, and the right to determine the disposition of any copyrights, or copyrightable materials, first produced or created in the performance of this Project remains with thc Municipality provided that the Municipality will grant to the Department 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 ~his Project were funded by New York State Department of Environmental Conservation. · 16. 17. Appendi. ce5 A 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. 18. This ContraCt shall be effective upon approval of all required State Agencies. 19. All terms used in this Contract which apply to a Municipal Waste Reduction and Recycling Project shall have the same meaning as provided in 6 NYCRR Part 369. State Assistance Contract - Municipal Waste Reduction and ReCycling Program Page 3 of 4 MUNICIPAL WASTE REDUCTION AND RECYCLING PROGRAM - CONTRACT SIGNATURE PAG~ Municipality: Town of Southold Contract No. C302644 MUNICIPALITYSIGNATURE~/ Authorized Representative . _~~s~J (sign here) Date: (Name) Scott A. Russell (Title) Sup_ervi so~r. MUNICIPALITY ACKNOWLEDGMENT: STATE OF NEW YORK ) ) SS.: COUNTY OF SUFFOLK ) Onthis ,.~/ dayof ~/./~.~.~¢' 200~, , befoi-e me personally came ScQt~ ~. R.u~911, Supe~'vJ-so~ Jofthe Town of Southold, the political subdivision or agency thereof described in and which executed the above instrument: by authority of attached certified copy of resolution of said political subdivision, and that he signed his name by that authority. LINDA d COOPER NOTARY PUBLIc, State of New York NO, 01C04822563, Suffolk Count Term Expires December 3t, NOTARY PUBLIC .......... DO NOT WRITE BELOW THIS LINE --r- FOR NYSDEC USE ONLY STATE AGENCY CERTIFICATION: "In addition to the acceptance 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 - Municipal Waste Reduction and Recycling Program Page 4 of 4 Schedule A - Project Description and Budget Attachment to Contract C302644 between NYSDEC and theTown of Southold Project No. 1-MSWSS-106b Project Description: For many years the Town conducted its composting operations over the now closed landfill. This ceased in 2001 due to the commencement of construction of a cap for the landfill, pursuant to 6 NYCRR Part 360 Regulations. In anticipation of the landfill cap construction, and in order to maintain its composting program, the Town purchased a 17- acre parcel adjacent to the landfill property where it has relocated its composting services. The new facility has been developed which provides for receiving, composting and curing up to approximately 42,000 cubic yards of yard waste (including grass, leaves and brush) per year. Under this contract, the Town seeks reimbursement for the purchase ora windrow turner to aerate the open windrow portion of the site. Project Budget: A Construction/Equipment Used windrow turner Total Eligible Cost: State Share: Cost $60,000 $60,000 $30,000 (continued) Schedule A - Page 2 Attachment to Contract C302644 Additional Contract Clauses: Reimbursement will be based upon eligibility review of the actual costs submitted for payment. The Municipality agrees to utilize the equipment listed above exclusively for its recycling/composting program, unless specified otherwise in this Schedule A. The Municipality agrees to properly maintain and operate the equipment funded under this contract for the useful life of the project. The Municipality agrees that any identifying signs for the facility will note that portions of the project were funded by New York State Department of Environmental Conservation. The Municipality agrees that compost and wood chips produced will be utilized by the Municipality, or made available to residents and local businesses for use as a soil amendment or for landscaping purposes. The materials will not be disposed of in a landfill or incinerator. The Municipality agrees that it will not receive reimbursement from other New York State or federal funding sources for any expenditures funded under this Contract. No costs funded by any entity other than the Municipality will be submitted for Department reimbursement. (END OF SCHEDULE A) STAND.~ItD Oi~ISES FOR NT'$ OONTRAI~S APPENDIX A STANDARD CLAUSES FOR NYS CONTRACTS The parties to the attached contract, license, lease, amendment or other agreement of any kind (heminafler, "the contract" or "this contract") agree to be bound by the following clauses which are hereby made a part of the contract (the word "Contractor" herein refers to any party other than the State, whether a contractor, licenser, licensee, lessor, lessee or any other party): 1. EXECUTORY CLAUSE. ]n accordance with Section 41 of the State Finance Law, the State shall have no liability under this contract to the Contractor or to anyone else beyond funds appropriated and available for this contract. 2. NON-ASSIGNMENT CLAUSE. In accordance with Section 138 of the State Finance Law, this contract may not be assigned by the Contractor or its right, title or interest therein assigned, transferred, conveyed, sublet or otherwise disposed of without the previous consent, in writing, of the State and any attempts to assign the contract without the 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 contract concerns Certificates of Participation pursuant to Article 5-A oftbe State Finance Law. 3. COMPTROLLER'S APPROVAL. In accordance with Section 112 of the State Finance Law (or, if this contract is with the State University or City University of New York, Sention 355 or Section 6218 of the Education Law), if this contract exceeds $15,000 (or the minimum thresholds agreed to by the Office of the 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 statatory 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 $10,000, it shall not be valid, effective or binding upon the State until it has been approved by the State Comptroller and filed in his office. Comptroller's approval of contracts let by the Office of General Services is required when such contracts exceed $30,000 (State Finance Law Section 163.6.a). 4. WORKERS' COMPENSATION BENEHTS. In accordance with Section 142 of the State 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. To the extent required by Article 15 of the Executive Law (also known as the Human Rights Law) and all other State and Federal statutory and constitutional non-discrimination provisions, the Contractor will not discriminate against any employee or applicant for employment because of race, creed, color, sex, national origin, sexual orientation, age, disability, genetic predisposition or carrier status, or marital status. Furthermore, in accordance with Section 220-e of the Labor Law, if this is a contract for the construction, alteration or repair of any public building or public work or for the manufacture, sale or distribution of materials, equipment or supplies, and to the extent that this contract shall be performed within the State of New York, Contractor agrees that neither it not its subcontractors shall, by reason of race, creed, color, disability, sex, or national origin: (a) discriminate in hiring against any New York State citizen 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. If this is a building sondce 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 race, creed, color, national origin, age, sex or disability: (a) discriminate in hiring against any New York State citizen who is qualified and available to pE~rform the work; or (b) discriminate against or intimidate any employee hired for the Page I performance of work under this contract. Contractor is subject to fines of $50.00 per person per day for 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 contract 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, excep~ as otherwise provided in the 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 Icast 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 BIDDING CERTIFICATION. In accordance with Section 139-d of the 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 independently and without collusion aimed at restricting competition. Contractor further wan-ants that, at the time Contractor submitted its bid, an authorized and responsible person executed and delivered to the State a non-collusive bidding certification on Contractor's behalf. 8. INTERNATIONAL BOYCOTT PROHIBITION In accordance with Section 220-f of the 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, that neither the Contractor nor any substantially owned or affiliated person, finn, partnership or corporation has participated, is participating, or shall participate in an international boycott in violation of the federal Export Administration Act of 1979 (50 USC App. Sections 2401 et seq.) or regulations thereunder. If such Contractor, 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 United States Commerce Department or any other appropriate agency of the United States subsequent to the contract's execution, such contract, amendment or modification thereto shall be rendered forfeit and void. The Contractor shall so notify the State Comptroller within five (5) business days of such conviction, determination or disposition of appeal (2NYCRR 105.4). 9. SET-OFF RIGHTS. The State shall have all of its common law, equitable and statutupj rights of set-off. These rights shall include, but not be limited to, the State's option to withhold for the pu.,poses of set- off any moneys due to the Contractor under this contract up to any 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 mason including, without limitation, tax delinquencies, fee delinquencies or monetary penalties relative thereto. The State shall exereiso 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 Contractor May, 2003 within the State of New York or, if no such 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 which are exempt from disclosure under Section 87 of the Public Officers Law {the "Statute") provided that: (i) the Contractor shall timely inform an appropriate State official, in writing, that said records should not be disclosed; and (ii) said records shall be sufficiently identified; and (iii) designation of said records as exempt under the Statute is reasonable. Nothing contained herein shall diminish, or in any way adversely affect, the State's right to discovery in any pending or future litigation. 11. IDENTIFYING INFORMATION AND PRIVACY NOTIFICATION. (a) FEDERAL EMPLOYER IDENTIFICATION NUlVlBER and/or FEDERAL SOCIAL SECURITY NUMBER. All invoices or New York State standard vouchers submitted for payment for the sale of goods or services or the lease of real or personal property to a New York State agency must include the payee's identification number, 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 payee 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) PRIVACY NOTIFICATION. (1) The authority to request the above personal infurmat!on from a seller of goods or services or a lessor 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 returns or 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 be used for tax administration purposes and for any other purpose authorized by law. (2) The personal information is requested by the purchasing unit of the agency contracting to purchase the goods or services or lease the real or personal properly 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, New York 12236. 12. EOUAL EMPLOYMENT OPPORTUNITIES FOR MINORITIES AND WOMEN. In accordance with Section 312 of the Executive Law, if this contract is: (i) 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 docs expend funds in return for labor, services, supplies, equipment, materials or any combination of the foregoing, to be performed for, or rendered or furnished to the contracting agency; or (ii) a written agreement in excess of $100,000.00 whereby a contracting agency is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon; or (iii) a written agreement in excess of $100,000.00 whereby the owner of a State assisted housing project is committed to expend or docs expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon for such project, then: (a) The Contractor will not discriminate against employees or applicants for employment because of race, creed, color, national origin, sex, age, disability or marital status, and will undertake or continue existing programs of affirmative action to ensure that minority group membem and women are afforded equal employment opportunities without discrimination. Affirmative action shall mean recruitment, Page 2 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 conh-acting 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 statement 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 ia 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 be afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability or marital status. Contractor will include the provisions of "a", "b', and %" above, in every subcontract over $25,000.00 for the construction, demolition, replacement, major repair, renovation, 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) banking services, insurance policies or the sale of securities. The 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 the 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 duly promulgated and lawful rules and regulations of the Governor's Office of Minority and Women's Business Development pertaining hereto. 13. CONFLICTING TERMS. In the event of a conflict between the terms of the contract (including any and all attachments thereto and amendments thereof) and the terms of this Appendix A, the terms of this Appendix A shall control. 14. GOVERNING LAW. This contract shall be governed by the laws of the State of New York except where the Federal supremacy clause requires otbenvise. 15. LATE PAYMENT. Timeliness of payment and any interest to be paid to Contractor for late payment shall be gevemed by Article 1 I-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 statutorily author/zed), but must, instead, be heard in a court of competent jurisdiction of the State of New York. 1% SERVICE OF PROCESS. In addition to the methods of service allowed by the State Civil Practice Law & Rules ("CPLR"), Contractor hereby consents to service of process upon it by registe~l 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 return thereof by the United States Postal Service as refused or undeliverable. Contractor must promptly notify the State, in writing, of each and every change of address to which service of process can be made. Service by the State to the last known address shall be sufficient. Contractor will have thirty (30) calendar days aP. er service hereunder is complete in which to respond. May, 2003 ST~IIEI~B CiJIIIgl$ NB HYS CONTRACTS 18. PROHIBITION ON PURCHASE OF TROPICAL HARDWOODS. The Contractor certifies and wan'ants that all wood products to be used under this contract award will be in accordance with. but not limited to, the specifications and provisions of State Finance Law § 165. (Usc of Tropical Hardwoods) which prohibits purchase and use of tropical hardwoods, unless specifically exempted, by the State or any gnvemmental agency or political subdivision or public benefit corporation. Qualification for an exemption under this law will be the responsibility of the contractor to establish to meet with the approval of the State. In addition, when any portion of this 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 informed 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 responsibilily of the Contractor to meet with the approval oftbe State. 19. MACBRIDE FAIR EMPLOYMENT PRINCIPLES. In accordance with the MacBride Fair Employment Principles (Chapter 807 of the Laws of 1992), thc Contractor hereby stipulates that the Contractor either (a) has no business operations in Northern Ireland, or (b) shall take lawful steps in good faith to conduct any business operations in Northern Ireland in accordance with the MacBride 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 pelicy 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: NYS Department of Economic Development Division for Small Business 30 South Pearl St -- 7th Floor Albany, New Yurk 12245 Telephone: 518-292-5220 A directory of certified minority and women-owned business enterprises is available from: NYS Department of Economic Development Division of Minority and Women's Business Development 30 South Pearl St -- 2nd Floor Albany, New York 12245 http://www.empire.state.ny.us The Omnibus Procurement Act of 1992 requires that by signing this bid proposal or contract, as applicable, Contractors certify that whenever the total bid amount is greater than $t million: (a) The Contractor has 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 project, and has retained the documentation of these efforts to be provided upon request to the State; Co) The Contractor 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 this project through listing any such positions with the Job Service Division of the New York State Department of 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 the State may seek to obtain offset credits from foreign countries 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 Onmibus Procurement Act 1994 and 2000 amendments (Chapter 684 and Chapter 383, respectively) require that they be denied contracts which they would otherwise obtain. NOTE: AsofMay 15,2002, the list of discriminatory jurisdictions subject to this provision includes the states of South C~olina, Alaska, West Virginia, Wyoming, Louisiana and Hawaii. Contact NYS Department of Economic Development for a current list of jurisdictions subject to this provision. 22. PURCHASES OF APPAREL. In accordance with State Finance Law 162 (4-a), the State shall not purchase any apparel from any vendor unable or unwilling to certify that: (i) such apparel was manufacvared in compliance with all applicable labor and occupational safety laws, including, but not limited to, child labor laws, wage and hours laws and workplace safety laws, and (ii) vendor will supply, with its bid (or, if not a bid situation, prior to or at the time of signing a contract with the State), if known, the names and addresses of each subcontractor and a list of all manufactaring plants to be utilized by the bidder. Page 3 May, 2003 APPENDIX B 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 "Contractor" herein refers to any party to the contract, other than the New York State Department of Environmental Conservation (hereinafler "Deparlment"). III. Conflict of Interest: (a) Orl~anizational Conflict oflnterest. To the best of the Contractor's knowledge and belief, the Contractor warrants that there are no relevant facts or circumstances which could give rise to an organizational conflict of interest, as herein de freed, or that the Contractor has disclosed all such relevant information to the Department. Postponement, Suspension, Abandonment or Termination by the Department: The Department shall have the right 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, andto limit further expenditures. Within 15 days of receipt of notice, the Contractor shall deliver to the Department all data, reports, plans, or other documentation related to the performance of this contract, including but not limited to source codes and specifications, guarantees, warranties, as-built plans and shop drawings. In any of these events, the Deparlment 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 postponement, suspension, abandonment or termination of this contract. This clause shall not apply to this contract if the contract contains other provisions applicable to postponement, suspension or termination of the contract. II. Indemnification and Holdharmless: The Contractor agrees that it will indemnify and save harmless the Deparlment 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. (l) An organizational conflict of interest exists when the nature of the work to be performed under this contract may, without some restriction on furore activities, impair or appear to impair the Contractor's objectivity in performing the work for the Department. (2) The Contractor agrees that if an actual, or potential organizational conflict of interest is discovered at any time after award, whether before or during performance, the Contractor will immediately make a full disclosure in writing to the Department. This disclosure shall include a description of actions which the Contractor has taken or proposes to take, afler 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, proprietmy 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 following provisions 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) A personal conflict of interest is defined as a relationship of an employee, subcon~actor 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, or potential 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 most then advise the Department which will advise the Contractor of the appropriate action to be taken. Unless waived by the Department, the Contractor shall certify annually that, to the best of the Contractor's 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 Deparlment. 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 of contract 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 stipulate that each employee agrees not to disclose, either whole or in part, to any entity extemal to the Department, Department of Health or the New York State Department of Law, any information or data provided by the Department or first generated by the Contractor under this contract, any site-specific cost information, or any enforcement strategy without first obtaining the written permission of the Department. 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 immediate advance notification to the Department so that the Department can authorize such disclosure orhave the opportunity to take action to prevent such disclosure. Such agreements shall be effective for the life of the conttact and for a period of five (5) years after completion of the contract. (c) Remedies - The Department may terminate this conl~act in whole or in part, if it deems such termination necessary to avoid an organizatonal or personal conflict of interest, or an unauthorized disclosure of information. If the Contractor fails to make required disclosures or misrepresents relevant information to the Depaflment, the Department may terminate 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 termination. (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 otherw/se authorized by the Department. 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. Page 2 (f) Due to the scope and nature of this contract, the Contractor shall observe the following restrictions on future hazardous waste site contracting for the duration of the contract. (4) The 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 work pertaining to a site where the Contractor previously performed work for the Department under this contract without the prior written approval of the Department. (5) The Contractor agrees in advance that if any bids/proposals are submitted for any work for a third patly 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 Contractor's own risk, and no claim shall be made against the Department to recover Iffid/proposal costs as a direct cost whether the request for authorization to enter into the contract is denied or approved. IV. Requests for Payment: All requests for payment by the Contractor must be submitted on forms supplied and approved by the Department. Each payment request must contain such items of information and supporting documentation as are required by the Department, and shall be all-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. 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 Department 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 Department, 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: The terms contained in this clause shall have the definitions as given in, and shall be construed 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 heroin equals or exceeds $25,000, and this contract is for labor, services, supplies, equipment, or materials; or (b) If the maximum contract price herein equals or exceeds $100,000 and this contract is for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon; then (c) The affirmative 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) (2) The Contractor is 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). 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 at least 10.0% of, the workforce hours required to perform the work under this contract. App. B 4/17/00 Page 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 interact: www.empire.state.ny.us\esd.htm (d) The Contractor agrees to include the provisions set forth in paragraphs (a), (b) and (c) above and paragraphs (a), (b), 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" shall mean 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 porlion of the Contractor's obligation under a State contract is undertaken 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 to its terms. The Contractor is requested to report on such implementation periodically as provided by the contract, or annually, whichever is more frequent. VIII. Compliance with Applicable Laws: (a) Prior to the commencement of any work under this contract, the Contractor is required to meet all legal requirements necessary in the performance of the contract. This includes but is not limited to compliance with all applicable federal, state and local laws and regulations promulga~d thereunder. It is the Contractor's responsibility to obtain any necessarypermits, or other authorizations. By signing this contract, the Contractor affmv, afively represents that it has complied with said laws, unless it advises the Department otherwise, in writing. The Deparnnent signs this contract in reliance upon this representation. (b) During the term of this contract, and any extensions thereof, the Contractor must remain in compliance with said laws. A failure 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 Department and the Contractor. (a) The Contractor specifically agrees to submit, in the first instance, any dispute relating to this contract to the designated individual, who shall render 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 CDAI") within twenty days of receipt of that decision. (b) Upon receipt of the written appeal, the DAI, will review the record and decision. Following divisional procedures in effect at that time, the DAl will take one of the following actions, with written notice to the Contractor. (1) Remand the matter to the program staff for fur~er 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 that the determination of the designated individual is confirmed; 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 ConUmttee ("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 Jeffrey C. Schmitt, P.E., Bureau Director Bureau of Solid Waste, Reduction & Recycling 625 Broadway Albany, NY 12233-7253 Telephone: (518) 402-8678 The designated appeal individual to review decisions is: Departrnent 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 Nancy W. Lussier, 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 of the CRC and the Office of General Counsel, will take one of the following actions, or a combination thereof, with written notice to the Contractor. (l) Remand the matter to program staff for additional fact finding, negotiation, or other appropriate action; or (2) Adopt the decision of the DAI; 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 opportunity to be heard. (f) Following 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 duting the dispute resolution process, and upon mutual agreement of the parties, the Office of Hearings and Mediation Services (OHMS) may be requested to provide mediation services or other appropriate means to assist in resolving the dispute. Any fradings or recommendations made by the OHMS will not be binding on either party. (h) Final agency determinations shall be subject to review only pursuant to Article 78 of the Civil Practice Law and Rules. (i) Pending final determination of a 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 final the decision of any administrative officer upon a question of law. 0)(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 detenmnation with respect to the adequacy oftbe Contractor's Utilization Plan, or the Contractor's 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 Department's determination. (2) The CRC will promptly convene a review in accordance with Article 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 designated 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 required by law to be posted at the site, the Depamnent of Labor notice that this 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 ConUactor to post. The Contractor shall provide a surface for such notices which is satisfactory to the Department. The Contractor shall maintain such notices in a legible manner and shall replace any notice or schedule which is damaged, defaced, illegible or n/moved for any reason. Contractor shall post such notices before co..~encing any work on the site and shall nmintain such notices until all work on the site is complete. App. B 4/17/00 Page 5 (b) When appropriate, conlxactor 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. Worker includes employees of Contractor and all Subcontractors and all employees of suppliers entering the site. Such notice shall J)e distributed to each worker before they start performing any work of this contract. At the time of distribution, Contractor shall have each worker sign a statement, in a form provided by the Department, certifying 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, which transcript must be subscribed and affirmed as true under penalty of perjury. XI. Offset: In accordance with State Law, the Department 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, unless otherwise provided in the contract. '[he Contractor shall be liable for all costs for maintaining 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 first made in performance of this Contract shall be the property of the Department, unless otherwise provided in the contract. The Contractor agrees to provide the Department with any and all materials related to this property. At the Department's option, the Contractor 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 Department 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 regisUation 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. B 4/17/00 Page (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: (1) procure for the Department the right to continue using the same item or parts thereof; (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 ~ame quality and performance; (4) if none of the above remedies are available, discontinue its use and eliminate any furore 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 Department to the Contractor for defense and indemnification pursuant to this Article, the Department shall copy all pleadings and documents forwarded to the Contractor together with the forwarding correspondence and a copy of this Conh'act 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 indemnification set forth in this Article, the Contractor shall immediately 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 permit 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 furnished 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 Department has any direct or indirect interest by license or otherwise. (e) The foregoing states the Contractor's entire liability for, or resulting from, patent or copyright infringement or claim thereof. XVII. Force Majeure: The term Force Majeure shall include acts of God, work stoppages due to labor disputes or strikes, fires, explosions, epidemics, riots, war rebellion, sabotage ortho like. Ifa failure ofordelayin performance by either party 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 (b) 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. XVII1. Freedom of Information Requests: The Contractor agrees to provide the Department 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 of a conflict between the terms of this Appendix B and the terms of the Contract (including any and all attachments thereto and amendments thereof, but not including Appendix A), the terms of this Appendix B shall control. In the event of a conflict between the terms of this Appendix B, and the terms of Appendix A, the terms of Appendix A shall control.