HomeMy WebLinkAboutGIS Data Sharing- PRELIMINARY
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RESOLUTION (ID # 3638)
DRAFT
DOC ill: 3638
THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. (ID # 3638) WAS
DRAFT AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON
FEBRUARY 26, 2008:
RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs
Suuervisor Scott A. Russell to execute an Al!reement betweeu the Town of South old and
the New York State Office of Cvber Security & Critical Infrastructure Coordination in
connection with the Geographic Information Systems Data Sharing Cooperative Agreement and
related documents, subject to the approval of the Town Attorney.
P&r~a~...t/..
Elizabeth A. Neville
South old Town Clerk
New York State
Cyber Security & Critical Infrastructure Coordination
30 South Pearl St., 11 th Fl.
Albany, NY 12207
518-474-5212
Fax No.: 518-473-5848
TO: Potential GIS Cooperative Members
FROM:
William F. Johnson, Assistant Deputy Director & CIO
~7
SUBJECT: Geographic Information Systems Data Sharing Cooperative Agreement
and Related Documents
I. INTRODUCTION
In July of 1997, James Natoli, Director of State Operations issued Policy 97-6 on
Geographic Information Systems (GIS) data sharing. Pursuant to that policy, State
agencies were asked to share in the creation, use and maintenance of GIS datasets at the
least possible cost. The policy also established the "New York State GIS Data Sharing
Cooperative." This Cooperative was established to provide a vehicle through which State
and Federal agencies, local governments, and not-for-profits could easily obtain
computerized data from other members of the Cooperative at little or no cost.
II. DATA SHARING COOPERATIVE AGREEMENT
The attached Data Sharing Agreement forms the basis for this Cooperative. The
Agreement was developed by the GIS Legal Work Group which represented local and
State government, as well as the private sector involved in GIS. We encourage you to take
advantage of this opportunity to become members of the Cooperative and avail yourself of
the datasets. (Please note that you do NOT have to currently own datasets to join the
Cooperative.)
~r:8 - 4 2008
Page Three
To accomplish this, we have also attached a description form to be used for each GIS
dataset identified by yonr organization. Please complete a copy of the form for each
dataset. (The datasets shown on the form should have location descriptors that will be
useful in a GIS context and that are in digital form.) Also attached is a brief set of
questions that can assist you in identifYing which of your data holdings is appropriate for
inclusion in the inventory. If your organization has no GIS datasets, please note that in the
transmittal when you return the signed duplicate originals of the Agreement.
V. RETURNING DOCUMENTS
Please return two (2) signed duplicate originals of the Agreement, a copy of your 501(c)(3)
letter, if applicable, along with the contact name and the GIS Data Resonrces form to:
Mr. William F. Johnson
NYS Cyber Security & Critical Infrastrncture Coordination
30 So. Pearl Street - 11 th Fl.
Albany, NY 12207
If yon have any qnestions regarding the Data Sharing Agreement or related docnments,
please contact William F. Johnson at the NYS Cyber Secnrity & Critical Infrastructure
Coordination office at (518) 473-5755 or via e-mail at:william.iohnsonCa2cscic.state.nv.us.
Attachments
6f4lO7
NYS GIS Data Sharing
Cooperative Ae:reement Checklist
Prior to returning your completed Data Sharing Cooperative
agreements, please be sure.. .
o On page I of the Agreement, your organization's name and
address have been filled out.
o On page 6 of the Agreement, the signature, the organization's
contact information and Federal Identification Number have
been completed in the upper right comer of the page and that
the Notary Public has completed and notarized the lower portion
of the page and has also printed the STATE OF and COUNTY
OF.
(NOTE: The cooperative agreement requires the signature of
someone who has the authority to sign legal contracts on behalf
of your organization.)
o If your organization is a Not-For-Profit entity, please attach a
copy of your 501(c)(3) letter.
o The GIS Cooperative Contact Information sheet is completed.
o The GIS Data Resources Inventory sheet is completed. If you
do not have any GIS data to contribute to the Cooperative at this
time, please note at the top of this sheet, "Does not maintain any
GIS data."
o Both copies of the completed Agreement must be returned to us.
A complete copy of the Agreement including Appendix A will
be returned to you after we have processed the paperwork.
NYS Office of Cyber Security &
Critical Infrastructure Coordination
NYS GIS Data Sharing Cooperative Contact Information
Name:
Title:
Organization:
Address:
County:
Phone:
Fax:
E-Mail:
*******************************************
Please check the appropriate box that describes your organization:
rn NY State Agency rn County Government
rn Not-for-Profit rn Local Government
rn Federal Agency rn Academia
. '
rn Other State
rn Other (please explain)
GIS Data Resources Inventory
Dataset Name:
Description
Is your Agency:
Primary Custodian*: 0
Secondary Custodian: 0
Scale:
Coverage:
Statewide 0
Sub-state 0
Is the data restricted by commercial license?
Is the data restricted by confidentiality/privacy concerns?
Is the data documented?
If this dataset were accessible on the Internet, do you feel
it would require password protection?
Yes
D
D
D
No
D
D
D
D
D
Comments:
*Defined in Technology Policy 97-6. Agencies that create, develop, or own GIS datasets
will be considered the Primary Custodian of those datasets. Secondary Custodians are
agencies that are in possession of a GIS dataset acquired from the primary custodian and
who may have updated or modified the data.
THE NEW YORK STATE GEOGRAPHIC INFORMATION SYSTEMS (GIS)
COOPERATIVE DATA SHARING AGREEMENT
FOR USE WITH
LOCAL GOVERNMENTS OF NEW YORK STATE AND NOT.FOR.PROFIT ENTITIES
This Agreement is executed by and between the Office of Cyber Security and Critical Infrastructure
Coordination, responsible for planning and coordinating Geographic Information Systems (hereafter collectively
referred to as the State), having an office at 30 South Pearl Street, Albany, NY 12207-3425, and:
(Agency)
(Address)
recognized as a local governmental agency or not-for-proflt entity (Member).
, having an office at
. which Is legally
WIT N E SSE T H:
WHEREAS, the State, under Technology Policy 96-18, established an Initiative to create a framework and
criteria for the development of a Statewide New York State Geographic Information Systems (GIS) Program; and,
WHEREAS, this Initiative Includes a structure to Implement the GIS program and obtain broad representation
among the State's varied GIS user community. The GIS structure Includes a Coordinating Body charged with providing
policy recommendations to the Office of Cyber Security and Critical Infrastructure Coordination (CSCIC) and
establishing a framework for the easy dissemination of GIS Data between agencies at minimal cost and without delay.
The Coordinating Body recommended creating the New York State GIS Data Sharing Cooperative (Cooperative) as a
mechanism to accomplish this data sharing; and
WHEREAS, one of the purposes of CSCIC Is to coordinate GIS, the State wishes to encourage agencies of the
State of New York and Its political subdivisions and other non-profit corporations or other non-commerclal entities to
Join and become Members of the Cooperative and participate in sharing of GIS Data and Member wishes to Join and
participate In the Cooperative and share GIS Data. The State also wishes to encourage agencies of the Federal
government, other states, and other sovereigns to Join and become Members of the Cooperative and participate In
sharing of GIS Data; and
WHEREAS, Member wishes to join and participate In the Cooperative and share GIS data.
NOW THEREFORE, In consideration of the mutual covenants herein contained, the parties do agree as follows:
I. GENERAL TERMS AND CONDITIONS
A. Definltlons- For the purposes of this Agreement, the following terms are defined:
1. Clearinghouse - a worldwide web site hosted by the State of New York, which acts as a repOSitory for spatial
Metadata and other Information that promote cooperstlon among users in the GIS community.
2. Cooperative - the group of governmental agencies and not-for-profit entities which have executed Data
Sharing Agreements for the purpose of exchanging and Improving access to GIS Data for Members.
3. Cooperative Custodian - a custodian designated by the Coordinating Body for distribution, only within the
Cooperative, of data for which the custodian may not otherwise be considered the primary custodian of such
data.
4. Coordinating Body - acts as a Standing Committee of the State.
5. Data - consists of the digital databases or data layers which contain references to locations on the earth'e
surface.
6. Improved Data - Includes any or all of the following: correction of errors; addition of missing features for
feature categories already represented in the Data; improvement of positional accuracy; revision to Improve
the temporal quality of the Data; correction of descriptive attribute data for categories already represented In
the Data; and any other action which Improves the existing Data without creating new categories of data not
previously present in the Data.
7. Intermediary Custodian - a Member, designated In writing by one or more Members, who agrees to act on
behalf of such Member(s):
Dated: 5/29/07
(I) as a Primary Custodian to collect and distribute Data owned by such Member(s) to other
Members; and
(ii) as a Secondary Custodian to receive Data acquired from other Members who are Primary
Custodians and redistribute it to Member(s) designating It as Its Intermediary Custodian.
The Intermediary Custodian shall have the duty to notify the Coordinating Body of Its designation to act on
behalf of any Member upon designation by the Member. The Intermediary Custodian shall transmit to the
Coordinating Body a copy of the document. signed by the Member. establishing the relationship between the
Member and the Intermediary Custodian.
8. Member - an entity that executes a Data Sharing Agreement to participate In the Cooperative.
9. Metadata. information supplied by a Member which describes the characteristics of the Data. which must be
in accordance with the Standards for information developed after Member joins the Cooperative.
10. New Data - categories of information not previously present in the Data or Improved Data.
11. Primary Custodian - the Member that developed or owns the Data. Each collection of Data (database, file,
layer, etc.) shall have a single Primary Custodian.
12. Secondary Custodian. a Member in possession of Data acquired from the Primary Custodian or from the
Cooperative.
13. Standards - the criteria adopted and revised by the Coordinating Body for GIS Data, Improved Data, Metadata,
transfer of Data, and/or hardware, software or other Items Included in the development, diSSemination, and
use of GIS.
14. State or State agency. refers to New York State and means any state department, board, bureau, division,
commission. committee, public authority, public benefit corporation, council, or office or other governmental
entity In the State of New York.
B. Nature of the Aareement- The parties expressly acknowledge and agree that this Agreement seta fOl'\h the terms and
conditions governing the services to be delivered and performance of services to be rendered by the parties.
C. Meraer and Order of Precedent-
1. The term "Agreement" shall be deemed Inclusive of the following items, as if merged and set forth herein at length:
a. The body of the Agreement (i.e.. that portion preceding the signatures of the parties In execution);
b. Appendix A- Standard Clauses for All N~w York State Contracts
2. In the event of any inconsistency In or conflict among the document elements of the Agreement Identified In Section
C.1 herein, such inconsistency or conflict shall be resolved by giving precedence to the document elements In the
fQllowing order:
a. First, Appendix A, Standard Clauses for All New York State Contracts, attached to the Agreement;
b. Second, body of the Agreement
D. Aareement ADDroval-
1. Member shall cause this Agreement to be executsd by the appropriate corporate officer, having the authority to sign on
behalf of the Member and such Member shall execute, by signature and affixation of corporate seal In thll presence of s
notary public.
2. The parties recognize that the Agreement is wholly executory and not fully executed and binding until and unless
approved by the State.
E. Term and Termlnatlon-
1. This Agreement shall commence on the date the Agreement is fully executed by both parties and shall remain In effect
until such time as the Agreement Is terminated In accordance with the following provisions:
a. Voluntary termination shall take effect upon ninety (90) days written notice to the other party.
2
b. Termination for cause shall take effect after the Coordinating Body Issues a notice of violation to the Member
and such Member falls to cure the violations within thirty (30) days of such notice. Within ten (10) dsys of the
termination date, the Member shall return all Data, Improved Data or New Data to the Primary Custodians.
2. Member agrees not to sell, disclose, or make available any Data, Improved Data or New Data obtained through the
Cooperative to anyone subsequent to termination of the Agreement unless required to do so by law. If a Member Is
required, by law, to relesse data, Improved dsta or new data, Member agrees to notify the Prlmery Custodian of.such
disclosure.
3. If a Primary Custodian ceases to be a Member of the Cooperative, all Secondary Custodians of Data provided by such
Primary Custodian shall continue to have the ability to use the Data In accordance with the terms and conditions of
this Agreement.
F. Consideration- As a Member of the Cooperative, Member Is entitled to receive and exchange GIS Data. In return,
Member agrees to provide Data and Improved Data as specified In Part II, Section A of this Agreement.
G. Disclaimer. Neither the State nor Member assumes any risk, liability or responsibility for the accuracy of Data,
Metadata, New Data or material facts submitted by Member to the GIS Clearinghouse.
H. Liability Relatina to Third Parties-
1. Member shall Indemnify and hold the State harmless from and against any and all damages, expenses (including
reasonable attorneys' fees), clsims, Judgments, liabilities and costs which may be finally assessed against the State In
any action for Infringement of a United States Letter Patent, ar of any copyright, trademark, trade secret or other third
party proprietary right, arising out of, or resulting from, Member's acts or omissions In relation to this agreement,
provided that the State shall give Member (I) prompt written notice of any action, claim or threat of Infringement suit,
or other suit, (Ii) the opportunity to take over, settle or defend such action, claim or suit at Member's sole expense, and
(III) all reasonable assistance In the defense of any such action at the expense of Member.
2. If principles of governmental or public law are Involved, the State may participate In the defense of any action
identified In this paragraph, but no costs or expense shall be Incurred upon the account of Member without Member's
written consent.
I. Force Maleure- Neither party will be liable for losses, defaults, or damages under these Agreements which result from
delays In performing, or Inability to perform, all or any of the obligations or responsibilities Imposed upon It pureuant to
the terms and conditions of these Agreements, due to or because of acte of God, the public enemy, acts of government,
earthquakes, floods, strikes, civil strife, fire or any other cause beyond the reasonable control of the party that was so
delayed In performing or so unable to perform provided that such perty was not negligent and shall have used reasonable
efforts to avoid and overcome such cause. Such party will resume full performance of such obligations and
re~ponslbllltles promptly upon removal of any such cause. .
J. Subcontractlna-
1. If Member hires a contractor to develop GIS data, contractor will be required to comply with Standards In providing
Metadata.
2. Member shall give the Stats Immediate notice In writing of any legal action or suit filed, and prompt notice of any
claim made, against Member by any contractor ar subcontractor which may result In litigation related In any way to
this Agreement or which may affect the performance of duties under this Agreement.
K. Assianment-
1. The State agrees not to assign this Agreement without prior notice to the Member.
2. Member may not assign this Agreement without the prior written consent of the State.
3. All provisions contained In this Agreement shall be binding upon, Inure to the benefit of, and be enforceable by the
respective successore and assigns of the parties hereto to the same extent as If each such successor or assign were
named a party hereto.
L. Entire Aareement- These' documents conetltute the entire Agreement between the parties. No statement, promise,
condition, underetandlng, Inducement or representation, oral or written, expressad ar Implied, which Is not contained
herein shall be binding or valid. This Agreement shall not be changed, modified or altered In any manner except by
written Instrument executed by authorized representatives of both parties.
3
M. Applicable Law- This Agreement shall be governed by and construed In accordance with the laws of the State of New
York.
N. Member's Status- The legal status of Member, Ita agents, officers and employees is that of an Independent contractor.
In no manner shall It or they ba deemed employees of the State of New York, and, therefore, are not entitled to any of the
benafits associated with such employment.
O. Notices- All notices, demands, daslgnatlons, certificates, requests, offers, consents, approvals and other instruments
given pursuant to this Agreement shall be In writing and shall be validly given when mailed by registered or certified mall,
or hand dellvared, (I) If to the State, addressed to the State at Its address set forth herein, and (II) If to Member, addressed
to Member at Its address set forth herein. The parties mey specify eny address In the United States as Its address for
purpose of notices under this Agreement by giving fifteen (15) days written notice to the other party. The partias agree to
mutually designate Individuals as their respective representatives for purposes of this Agreement.
P. Conflict of Intarest-If during the term of the Agreement Member becomes aware of an actual or potential relationship
which may be considered a conflict of Interest, Member shall notify the State In writing Immediately.
a. Saverabllitv- Should any provision of the Agreement be declared or found to be Illegal, unenforceable, Ineffective or
void, then each party shall ba rellevad of any obligation arising from such provision; the balance of the Agreement, If
capable of performance, shall remain In full forca and effact.
II. SPECIFIC TERMS AND CONDITIONS
A. Membar's Responsibllitles- Member warrants arid represents the following:
1. population of GIS Clearlnahousa - Member agr~as to populata the GIS Clearinghouse with Metadata in accordanca
with tha Standards and other Information regarding Member Representative, projects, training opportunities and other
events of Interest to tha GIS community for the "asy dissemination and use of its Data to Members as wall as others.
Information supplied by a Member whlchdescrl~es the characteristics of the Data created prior to Member's
participation In the Cooperative Is not required to meet such Standards.
2. Maintenance and Improvement of Data-
a. Membar agrees that a significant benefIt of the Cooperative Is the potential for Improvement of Data for all
Members. Accordingly, Member agreee to provide Primary Custodians with any Improved Oats which may be
produced during the Member's usa of the Data, Including work done by third parties such as consultants or
contrsctors that may parform on behal~ of tha Mamber. Improved Data shall balong to tha Primary Custodian
of ths original Data unless a saparata agreement has been raachad with the original Primary Custodian and
notice thereof sent to the Coordinating Body.
b. Member shall provide Improved Data to the Primary Custodian In accordance with the Standards. Such
Standards shall Include refarences to or copies of relevant supporting Information sources that the Primary
Custodian would need to verify the Improvements and Incorporats them Into the Data. Improved Data are to
be provided to Primary Custodians in a'tlmely manner but not less than annually. The Primary Custodian
shall determine whether to Incorporate ithe Improvements into the Data.
3. Oats Sharlna- Where the Member Is a Primary C;ustodlan, such Member agrees to make Data available to the
Cooperative. Such Member agrees to provide Diota within a reasonable time to the Cooperative at an amount not to
exceed the cost of media and delivery, unless specifically authorized to charge otherwise by Federal or State statute.
In the event another Membar requests Data which requirss additional work such as programming, analysis, or
conversion by the Primary Cuatodlan, the Prlm~ry Custodian may, at Its option, undertake the work and charge a fee
limited to the actual cost of fulfilling the request, Including personnel expense, unless otherwise apeclllcally
authorized to charge otharwise by Federal or Stste statute.
4. Raquests for Data- Member agraes to forward any raquasts for Data to the Primary Custodian, unlass disclosure of
Member's records containing SUCh data Is otherwise required by law; and, In such latter case, Member agrees to notify
the Primary Custodian of such disclosure.
5. Ralease of Data. Naw Data. or Imoroved Data- .
a. Unless required by law, under no clrcu",stances shall a Member release Data, New Data, or Improvad Data In
whola or In part for which it Is not the ~rlmary Custodian to a non-member of the Cooperative.
b. Unless otherwlee reetrlcted by law, there are no restrictions on the release of Data, New Data, or Improved
Data In whole or In part by a Member of. the Cooperative who Is the Primary Custodian of such data.
4
c. Information exchanged or received from the Cooperative by a Member shall not be used for any commercial
activity, marketing or advertising when the purpose of such activity Is for profit-making or other commercial
purpose.
6. Member's Aaents or Consultants- Member shall ensure in writing that any Dala transferred to or prepared by
Member's agent or consullant will be in the custody and control of Member and shall not alter the rights and
obligations of Member as a Primary or Secondary Custodian of the Dala. Member agrees to adhere to the criteria
adopted by the Coordinating Body regarding release of Dala to an agent or consullant.
7. New Dala-
a. Member acknowledges and agrees that New Data shall belong to the Member which produced It and that such
Member shall be deemed the Primary Custodian of the New Data. Member may transfer Primary Custodian
deslgnaUon of the New Dala to another Member upon mutual agreement and notice to the Coordinating Body.
In the event that a dispute exists over ownership of New Dala, the Coordinating Body shall be responsible for
designating the Primary Custodian.
b. Members are encouraged to enhance, extend, or supplement the Dala to meet their needs. Member, upon
creating New Dala, agrees to consult with all Primary Custodians upon whose Data the New Data may be
based to notify them of the creation of the New Dala.
8. Slandards- Except for Information supplied by a Member which describes the characteristics of the Data creeted prior
to the Member joining the Cooperative or Slandards adopted by other states and federal agency Members, Member
agrees to adhere to all Standards adopted by the Coordinating Body as soon as practicable. The Office of Cyber
Security and Critical Infrastructure Coordination, through the Coordinating Body, shall notify Member of all Slandards
adopted and revised by the Coordinating Body for GIS Data, Improved Data, Meladala, transfer of Data, and/or
hardware, software, or other Items included in the development, dissemination, and use of GIS. While other states
and federal agencies are not required to adopt New York Slate's Standards, they are encouraged to consider them for
their adopUon, where appropriate.
9. Prlvacv/Confldentialltv- Member agrees that no party will be required to disclose any Data for which It Is not the
primary custodian unless required by law.
10. Member ReDresentative- Member agrees to designate a single representative who will act as the authorized liaison to
other Members of the CooperaUve for purposes of data sharing, noUflcatlon of Improved Dala, Clearinghouse
Information, and other communication as required by the Cooperative. Each Member representative shall be listed
with name, Member business address, telephone and facsimile numbers, and e-mail address at the Clearinghouse.
11. Member Status- Member acknowledges that Its parUclpatlon In the Cooperative Is contingent upon having and
maintaining Its status as a valid governmental Member, non-profit corporation or other non-commerclal entity. If at
any time Member's status has changed or Is subject to change, Member shall Immediately notify the Cooperative In
wrlUng of such change or potential change.
12. Provisions Reaulred bv Law- Member agrees to comply with all of the provisions set forth In Appendix A, Standard
Contract Clauses for All New York State Contracts, attached hereto and made a part hereof as Appendix A.
B. State's ResDonslbllltles-
1. Standards- The State, through the Coordinating Body, shall noUfy Member of all Standards adopted and revised by the
Coordinating Body for GIS Dala, Improved Dala, Metadala, transfer of Data, and/or hardware, software, or other Items
Included In the development, dissemination, and use of GIS.
2. DlsDutes- When disputes arise among Members of the Cooperative, the State, through the Coordinating BOdy, shall
mediate such disputes.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
5
STATE OF NEW YORK
OFFICE OF CYBER SECURITY AND CRITICAL
INFRASTRUCTURE COORDINATION
TITLE:
AGENCY NAME:
Federal Identification No: II - (001"> ( '1 '3 'f
The undersigned warrants that he/she is legally
authorized to sign this document and signs In the
presence of a Notary Public.
BY:
Date:
NAME (print):
SIGNATURE:
TITLE:
ADDRESS:
TELEPHONE NO.
Date:
Member Notarization:
STATE OF
COUNTY OF
)
)SS:
)
On this _day of _. 20_, before me personally came , to me knOwn, and
known to me to be the person who executed the above instrument, who. being duly sworn by me, did for
her/himself depose and say that (s)he is ths ' (title) of Agency, with Its principal
place of business located at
. County of
. and that (s)he executed the foregoing Instrument In the name of Agency,
and that (s)he executed the same as the act and deed for the uses and purposes mentioned therein.
Notary Public
6
NEW YORK STATE OFFICE OF GENERAL SERVICES
PROCUREMENT SERVICES GROUP
APPENDIX A
STANDARD CLAUSES FOR NEW YORK STATE CONTRACTS
PLEASE RETAIN THIS DOCUMENT
FOR FUTURE REFERENCE.
June, 2006
STANDARD ClAUSES lOR NYS CONTRACTS
II'fEIIDIU
TABLE OF CONTENTS
1. Executory Clause
2. Non-Assignment Clause
3. Comptroller's Approval
4. Workers' Compensation B~nefits
5. Non-Discrimination RequiJ;ements
6. Wage and Hours Provisions
7. Non-Collusive Bidding Certification
8. International Boycott Prohibition
9. Set-Off Rights
10. Records
11. Identifying Information and Privacy Notification
12. Equal Employment Opportunities For Minorities and Women
13. Conflicting Terms
14. Governing Law
15. Late Payment
16. No Arbitration
17. Service of Process
18. Prohibition on Purchase of Tropical Hardwoods
19. MacBride Fair Employment Principles
20. Omnibus Procurement Act of 1992
21. Reciprocity and Sanctions Provisions
22. Purchases of Apparel
June, 2006
STANDARD ClAUSES fOR RYS CDRTHICIS
STANDARD CLAUSES FOR NYS CONTRACTS
BPPIIlIIIlI
The parties to the attached contract, license, lease, 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 other than the State, whether a contractor, licenser, licensee, lessor,
lessee or any other party):
1. EXECUTORY CLAUSE. In 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 of the 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, Section 355 or Section 6218 of the
Education Law), if this contract exceeds $50,000 (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 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 $10,000, it shall not be valid, effective or binding
npon the State until it has been approved by the State Comptroller and
filed in his office. Comptroller's approval of co~tracts let by the Office
of General Services is required when such contracts exceed $85,000
(State Finance Law Section 163.6.a).
4. WORKERS' COMPENSATION BENEFITS. 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
Wo~ers' Compensation Law.
S. NON-DISCRIMINATION REOUIREMENTS. To the extent
required by Article 15 of the Executive Law (also known as the Human
Rights Law) aild al1 other State and Federal staloto!)' and conslilotlonal
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 nor 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 service
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 perform the work; or (b)
discriminate against or intimidate any employee hired for the
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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,
except 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
least the prevailing wage rate and payor 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 affIrmS, under
penalty of petjury, that its bid was arrived at independently and without
collusion aimed at restricting competition. Contractor further affIrmS
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 PROIDBITION. 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, fIrm, 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. Ifanch
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 statutory rights of set-off. These rights shall include, but
Dot be limited to, the State's option to witliliold for the purposes 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 &.gency, including any
contract for a tenn 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 nonnal State practices including, in cases of set~off
pursuant to an audit, the fmalization 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
dP'ectly 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
June,2006
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.......
within the State of New Yark or, if no such office is available, at a
mutually agreeable and reasonable venue within the State, for the t~nn
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 (i i) said records shall be
sufficiently identified; and Ciii) 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 INt'ORMATION AND PRIVACY
NOTIFICATION. (a) FEDERAL EMPLOYER IDENTIFICATION
NUMBER and/or FEDERAL SOCIAL SECUIUTY 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, Le., the seller's or lessor's identification number, The number is
either the payeels Federal employer identification number or Federal
social security number, or both such numbers when the payee has both
sllch 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) PIUVACY NOTIFICATION. (I) The authority to request the
above personal infonnation 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 infonnation 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 property covered by this contract or lease, The infonnation is
maintained in New York State's Central Accounting System by the
Director of Accounting Operations, Office of the State Comptroller,: 110
State Street, 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
does expend flUIds in return for labor, services, supplies, equip~ent,
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 (Hi) a written agreement in
excess of $100,000.00 whereby the owner of a State assisted housing
project is committed to expend or does expend funds for the acquisition,
construction, demolition, replacement, major repair or renovation of real
property and improvements thereon for such project, then: '
I
(a) The Contractor will not discriminate against employees or
applicants for employment because ofrace, 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
members and women are afforded equal employment opportunities
without discrimination. Affirmative action shall mean recruitment,
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employment, job assignment, promotion, upgradings, demotion,
transfer, layoff, or termination and rates of payor 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 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 in the
implementation oftbe contractor's obligations herein; and
(c) the Contractor shall state, in all solicitations or advertisements for
employees, that, in the perfonnance 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 "c" 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
detennine 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 tho
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 thereot) and the tenns of this Appendix A, the terms of this
Appendix A shall control.
14. GOVERNING LAW. This contract shall he governed hy the laws
of the State of New York except where the Federal supremacy. clause
requires otherwise.
15. LATE fA YMENT. Timeliness of payment andany interest to be
paid to Contractor for late payment shall be governed by Article II~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 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
allowed 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 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 after service hereunder is
complete in which to respond.
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18. PROIDBITlON ON PURCHASE OF TROPICAL
HARDWOODS. The Contractor certifies and warrants 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. (Use of Tmpieat Hardwoods) which prohibits purchase and
use of tropical hardwoods, unless specifically exempted, by the State or
any governmental 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 responsibility of the Contractor to meet with
the approval of the State.
19. MACBRIDE FAIR EMPLOYMENT PRINCIPLES. In
accordance with the MacBride 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
(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 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:
NYS Department of Economic Development
Division for Small Business
30 South Pearl St -- 7~ Floor
Albany, New York 12245
Telephone: 518-292-5220
Fax: 518-292-5884
http://www.empire.state.ny.us
A directOIY 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
Telephone: 518-292-5250
Fax: 518-292-5803
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 $1 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;
Page 3
(b) 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
Omnibus Procurement Act 1994 and 2000 amendments (Chapter 684
and Chapter 383, respectively) require that they be denied contracts
which they would otherwise obtain. NOTE: As of May 15, 2002, the
list of discriminatory jurisdictions subject to this provision includes the
states of South Carolina, 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 manufactured in
compHance 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 (H) 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 manufacturing plants to be utilized by the bidder.
June, 2006
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June, 2006