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HomeMy WebLinkAboutHousehold Hazardous Waste GrantSouthold Town Board - Letter Board Meeting of February 2, 2010 RESOLUTION 2010-138 ADOPTED Item # 5.20 DOC ID: 5692 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2010-138 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON FEBRUARY 2, 2010: WHEREAS, the State of New York provides financial aid for household hazardous waste programs; and WHEREAS the Town of Southold, herein called the MUNICIPALITY, has examined and duly considered the applicable laws oftbe 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: 1) That the filing of an application in the form required by the State of New York in conformity with the applicable laws oftbe State of New York including all understanding and assurances contained in said application is hereby authorized; 2) That Supervisor Scott A. Russell, or his designee is directed and authorized as the official representative of the MUNICIPALITY to act in connection with the application and to provide such additional information as may be required and to sign the resulting contxact if said application is approved by the STATE; 3) That the MUNICIPALITY agrees that it will fund the entire cost of said household hazardous waste program and will be reimbursed by the State for the State share of such costs; 4) That five (5) Certified Copies of this Resolution be prepared and sent to the NYSDEC together with a complete application; 5) That this Resolution shall take effect immediately. Elizabeth A. Neville Southold Town Clerk Generated February 3, 2010 Page 29 Southold Town Board - Letter Board Meeting of February 2, 2010 RESULT: ADOPTED [UNANZHOUS] HOVER: Albert Krupski Jr., Councilman SECONDER: Vincent Orlando, Councilman AYES: Ruland, Orlando, Talbot, Krupski 3r., Evans, Russell Generated February 3, 2010 Page 30 Ne~v York Stat. e Department of Environmental Conservation Division of Materials Management Office of the Director, 9t~ Floor 625 Broadway, Albany, New York 12233-7250 Phone: (518) 402-8651 · Fax: (518) 402-9024 Website: www.dec.n¥.gov Joe Marams Acting Commissioner James Bunchuck Solid Waste Coordinator Town of Southold 6155 Cox Lane, PO BoX 962 Cutchogne, NY 11935 Dear Mr. Bunchuck: HAR 0 8 2011 Alt 1 4 2011 TOWN. OF SOUTHOLO DEPT. OF SOLID WASTE Re: Household Hazardous Waste (HHW) State Assistance Program Contract T304293 - Town of Southold The New York State Department of Environmental ConserVation (Department) has completed the review of your application for funding under thc Household Hazardous Waste State Assistance Prograrm I am pleased to inform you that your application has been approved. Your community is being awarded State assistance of $32,250.00, which is 50 percent of the eligible project cost for the time period fi.om January 1, 2010 to March 31, 2011. In order to receive funding, a State assistance contract between your community and the Department must be executed. Enclosed are four copies of a proposed contract for this funding. Please review them, sign and return them no later than 30 business days of the date of this letter to: Ms. Dawn Mirabile Division of Materials Management Planning and Municipal Assistance Section New York State Depaxtrnent of Environmental Conservation 625 Broadway, 9* Floor, Albany, NY 12233-7260 Upon receipt of these contracts, they will be processed for signature by representatives of the Department, the State Attomey General and the State Comptroller. Once fully signed, one of these contracts will be returned to you, along with the instructions for requesting payment. If you have questions on this matter, please contact Ms. Mimbile at (518) 402-8678. Sincerely, Acting Director Division of Materials Management Enclosures T304293 CONTRACT FOR STATE ASSISTANCE HOUSEHOLD HAZARDOUS WASTE STATE ASsisTANcE PROGRAM (ENVIRONMENTAL PROTECTION FUND) This Contract by and between the New York State Department of Environmental Conservation (herein referred to as the "Department") and the Town of Southold (herein refen'ed to as the "Municipality") with offices located at 53095 Main Road, Southold, NY 11971 WfrNESSETH: WltEREAS, thc Department is authorized by 1. Thc term Of this Contract shall commence on section 54-0705 of the Environmental Conservation Law and the 6 NYCRR Subpart 373-4 Regulations to enter into contracts on behalf of the State to provide grants to municipalities for Household Hazardous Waste Collection Programs; and WHEREAS, the Municipality has applied for a project grant, the scope of work/project description which includes budget amounts is set forth in Schedule A, which is attached and made a part of this contract; and WHEREAS, 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 ente~ into and execute this contract on behalf of the Municipality with the Department for the purpose of receiving the grant; and WltEREAS, 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 therefore; and January 1, 2010 and, except with respect to paragraph 7, shah terminate on March 31, 2011. The Depat~nent agrees to make available to thc Municipality a sum not to exceed Thirty Two Thousand Two Hundred Fifty Dollars and No Cents ($32,250.00) to reimburse the Municipality for expenditures made to cover eligible costs incurred for the items listed under Schedule & Project Scope of Work/Project Description and eligible costs, which is attached hereto and made a part hereof. Reimbursement hereunder is limited to fift~ percent (~0%) 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 axe those incurred by the Municipality during the term of this contract, and which are included in Schedule A. The Municip?~ty shall spend funds paid to it under this contract in strict accordance with Schedule A, and thc budget contained therein. WI~.REAS, the Municipality has the legal status necessary to enter into this contract; and Wl~REAS, the Department's execution of this contract is made in reliance upon the information provided by, and representations Of, thc Municipality in its application papers and this contract. NOW Tn i~:REFORE, In consideration of the promises and the mutual covenants and conditions contained in this Contract, the Department and the Municipality agree as follows: Reimbursement shall be made upon audit and approval by thc 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. State Assistance Contract - Household Hazardous Waste (HHW) State Assistance Program Page I of 4 b. Claims for reimbursement shall be delivered or sent to the address included in paragraph 6. Payments for expenditures incurred under this contract will be rendered electronically to the Municipality. Such electronic payment shall be made in accordance with ordinary State procedures and practices. The Municipality shall comply with the Comptroller's procedures to authorize electronic payments. Authorization forms are available at the Comptroller's website at: www.osc.state.n¥.ns/epay/index.htm, by e- mail at epunit~osc.state.ny.us or by telephone at (518) 474-4032. The Municipality acknowledges that it will not receive payment under this Contract if it does not comply with the Comptroller's electronic payment procedures. 5. Any project ex)st overruns will not be paid by the Department, and the Department is not committed to seeking additional appropriations or allocations of funds for the Municipality's project or program. 6. It is understood and agreed between the parties that the Department's Authorized Representative for the implementation of this Contract, or for approval and direction called for therein, shall be the Director of the Division of Materials Management, or designee. Whenever it is provided in this Contract that notice shall be given or other communications sent to the Department or Municipality, such notices or communications shall be delivered or sent to: State NYS Dept. of Environmental Conservation Division of Materials Management 625 Broadway, 9th Floor Albany, New York 12233 -7260 ATTENTION: Director Municimliw James Bunchuck Solid Waste Coordinator Town of Southold 6155 Cox Lane, PO Box 962 Cutchogue, NY 11935 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 ad complete the Project: 1. Failure to undertake the Project. 2. Failure to make progress on the Project to the satisfaction of the Department. 3. Failure to complete the Project to the satisfaction of the Department. 4. Failure to continue implementation and operation of the 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. If such monies are not repaid within one year after such demand, the Department may request the Comptroller to cause an amount equal to the monies paid to the Municipality under this contract to be withheld from any State assistance to which the Municipality otherwise would be entitled. This provision is in addition to the terms of Clause 9 of Appendix "A" referred to in paragraph 16 of this contract. Notwithstanding the foregoing, no repayment will be required if the Department det,uaines that such failure, .disposition or change of nsc of the Project or any portion thereof was immediately necessary to protect public health and safety. 8. 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 the Municipality, except with respeot to paragraph 17. State Assistance Contract - Household Hazardous Waste (HltW) State Assistance Program Page 2 of 4 Co 10. 11. The Municipality agrees to expend these funds strictly in accordance with the attached Schedule A, the provisions of the New York State Enviromental Conservation Law, the State Finance Law, the General Municipal Law, Appendices A and B, and all applicable rules and regulations. For projects involving collection days, the Municipality must have written approval from the Depamnent to conduct a Household Hazardous Waste Collection Program prior to any collection day, and a complete report must be submitted to the ' Department within ten (10) business days at, er completion of the collection day on forms supplied by the Department. For projects in which collection and storage facilities are to be constructed, construction costs will be considered eligible for reim- burseraent after construction of the facility is completod. Operating costs will be considered eligible for reimbursement only where the municipality has a valid permit to operate the facility during the time period for which reimbursement is sought, and a year end report was submitted to the Depas~ment covering the previous calendar year. If the Municipality fails to comply with any of these requirements, the Deparmaent may, upon reasonable written notice, withhold payments, in whole or part, to the Municipality pending compliance. The Municipality agrees to indemnify, save, and hold harmless the State and the Department in accordance with Clause II of Appendix B, referred to in paragraph 16 of this Contract. If monies paid to the Municipality under this Contract are to be used for the development of facilities, the Municipality agrees to comply with all requirements for providing barrier free access for the handicapped as established by Article 4A of the New York State Public Buildings Law and relevant sections of the New York State Uniform Fire Prevention and Building Code. 12. Facilities developed or equipment purchased pursuant to this Contract, upon request, shall be made available for inspection by the Department atany reasonable time. 13. In recognitign of the provision of State funds · for the Project, the Municipality agrees to give the Department appropriate credit for its support ig ,docu, Jnents or publications resulting from this Project. 14. Title to, and the right to determine the disposition of any copyrights, or copyrightable materials, fa'st produced or created in the performance of this Project remains with the 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. 15. The Municipality agrees that any identifying signs will note that portions of this Project were funded by New York State Depamnent of Environmental Conservation. 16 · Appendices A and Bare attached to and .:made a part of this COntract. 17. The Municipality agrees that it will not receive reimbursement from other sources for any expenditures funded under this Contract. However, nothing in this contract shall prohibit the Municipality from submitting additional applications for funding in fiscal years following completion of this project, provided costs already used to claim reimbursement hereunder am not eligible for future reimbursement regardless of reimbursement percentage rate. Thc Department may review, fund or deny such application without p~judice. 18. This Contract shall be effective upon aplSroval of all required State Agencies. 19. All terms used in this Contract which apply to a Household Hazardous Waste Collection Program shall have the same meaning as provided in 6 NYCRR Pa~ 373-4. State Assistance Contract - Household Hazardous Waste (HHW) State Assistance Program Page 3 of 4 HOUSEHOLD HAZARDOUS WASTE STATE ASSISTANCE PROGRAM - CONTRACT SIGNATURE PAGE Municipality Town of Southold Contract No. T304293 MUNICIPALITY SIGNAT~: Authorized. Representative: Dated: ."~ -~3 Title: Supervisor MUNICIPALITY ACKNOWLEDGMENT STATE OF NEW YORK ) ) SS.: cot rrv oF StzFOL : ) On the ~ 18~ .day of ~a(c~- in the year.oil, before me, the undersigned notary public, personally appeared. ~'o.~ .Al. ~ ~_<-.f~ [( , personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the individual, orthe person upon behalf of which the individual acted, executed the instrument. BONNI£J. DOROSIg ~~/~ Notary Public, State Of N~Yo~ No. 01D06095328, Suffolk County Term ExpiresJuly 7, 20. ~\ NO'l~f PUBLIC Do not write below this line for NYSDEC use only STATE AGENCY CERTIFICATION: "In addition to the acceptance of this contract, I also certify that ori~nal signature pages will be attached to other ~xaet copies of this contract." STATE AGENCY SIGNATURE: By: Date: Title: Director of Management & Budget OFFICE OF ATTORNEY GENERAL OFFICE OF STATE COMPTROLLER State Assistance Contract - Household Hazardous Waste (HHW) state Assistance Program Page 4 of 4 Schedule A - Project Description and Budget Attachment to Contract T304293 between NYSDEC and the Town of Southold Project Description: The municipality agrees to conduct an environmentally sound program for collection and disposal of household hazardous waste, including promotion of the hou.qehold hazardous waste (HHW) collection program, during the term of this contract. Project Budget: Supplies and Materials - $500.00 Equipment - $0.00 Public Education Costs - $4,000.00 HHW Collection/Disposal - $60,000.00 Total Eligible Cost: $64,500.00 State Share (50% of Total Eligible Cost): $32,250.00 Additional Contract Conditions: All collection of HHW will be in accordance with a NYSDEC approved collection day plan or facility p~mdt. All required HHW reports, collection day approvals, and/or permits must be up-to- date in order for payment requests to be approved under this contract. The Depa~haent will conduct a final eligibility review upon submittal of a request for reimbursement payment by the Municipality. The Municipality shall submit a final voucher to the Deparhnent within 30 days of the date of the end of the contract term. Only expenses for collection and disposal of hazardous waste originating from households are eligible for reimbursement. The Municipality agrees to give the Department appropriate credit for its financial support of household hazardous waste collection in documents or publications or advertising, including the phrase, "The Town of Southold collection program is partially fmaneed with a grant from the NYS Department of Environmental Conservation" or an equivalent phrase. - End of Schedule A -- State Assistance Contract - Household Hazardous Waste ~ State Assistance prOgram 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 Assistance, 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 duly held on the 2nd day of February , 2010 , and further that such Resolution has been fully recorded in the Southold Town Board Minutes in my office. In witness whereof, I have hereunto set my hand this 24th day of February , 2010. Seal Signature of Recording Officer Southold Town Clerk Title of Recording Officer mmmmmmmmmm mi STANDARD CLAUSES FOR POt'S CONTRACTS The part/er to the attached conlract, 1/ceuse, lcece. amendment or other agreemant of any kind (brae/nailer, "the contracff or ~this con~act") agree to be bound by the f~llowhg clausus which are hmuby made a part of the contract (the word "Conl~actor~ herein refe~ to any party other tha~ the State, whether a conh'actor, licenser, lice~ec, lessor, lessee or any other patty): 1, Y E. In accordance with Section 41 of the State Finance Law, the State shall have no liability under this conto~t to the Contnotor or to anyone else beyond funds appropriated and ave/lable for this con~ract. 2. - ' C SE. In accordance with Section 138 of the State Finance Law, this contract may not be essigned by the Contractor or its fight, title or inte~st therein assigned, transferred, conveyed, sublet or otherwiec disposed of without the State's previous written consent, and attempts to do so am null and void. Notwithstnn~ir~g the foregoing, such prior vaitten consent of an.assignment of a contract let puraumt to A~ieie XI of the State Finance Law may be waived at the discretion of the contracling agency and with the concurrence of the State Compiroller where the oti~nn! conlract was subject to the State Comptroller's approval, where the assi_anment is due to tt ~organization, merger or consolidation of the Conlractor's busine~ entity or.ente~ptise. The State retains its tight to approve an assjgi~ment and to require that any Contrnctor damonsmae its responsibility to do business with the State. The Contraaor may, however, assign its tight to receive payments without the State's ptior written consent unless this contract cone, ems Certificates of Pmiicipatinn pursuant to Article 5-A of the State Finance Law. 3. COMPTROLLER'S APPROVAL. In acenrdance with Section 112 of the State Finance Law (or, if this con~'act is with the State University or City Uinversity of New York, Section 355 or Section 6218 of the Education Law), if this contract exceeds $50,000 (or the r~nimum thre~olds ~rend to by the Office of the State Comp~oller 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 amanded, exceeds said statutory amount, or it; by this cunttaet, the State agrees to give ecm~thlnE other ~ IBonoy when ~ vRhle or reasonably estimated value of such cousideratiun exceeds $10,000, it shall not be valid, effectve or binding upon the Stere until it has bean approved by the Stete Comptxoller and filed in bis office. Comptroller's approval of enntracts let by the Office of Oene0rni Sen, ice~ is required when such contracts exceed $85,000 (State Finance Law Section 163.6.a). 4. WORK~RS' COMPENSATION BEN~FITS. In accordance with Section 142 oftbe State Finanec Law, this contract shall be void and of no force and effect unless the Co~actor shall provide al~ mslnlltin coverage dill~ the ]ifl~ of this conlxact for the benefit of such employees as are required to be covered by the provisions of the Workels' Compensation Law. 5. NON-DISCRIMINATION REOUIREMENTS. To the extant rcqui~l by Article 15 of the Execotive Law (also kllowll ss the H~mnn Rights Law) and all other State and Federal s~atuto~ and constitutional non-disctmination provisions, the Conl~actor will not discriminate agaInst any Page 1 employee or applicant for employrae~t because of race, creed, color, sex, national od/in, sexual orientation, age, disability, genetic predisposition or cagier status, or marital status. Furthermore, in accordance with Section 220-e of the Labor Law, if this is a contract for the construction, alteratien or repair of any public building or pabhc work or for the manufacture, sale or dishibution of materials, equipment or supplies, end to the ext~t that this conh~ct shall.be peribnned within the State of New York, Ceeb'actor agrece that neither it nor its subconh'actots shall, by reason of race, creed, color, disability, sex, or natienal origin: (a) discriminate in biting against any New York State citizen who is qualified and available to perform the work4 or (b) discriminate against or intimidate any en'~ployce hired for the performenco of work under this contract If this is a building service conlmet as defined in Section 230 of the Labor Law, then, in accordance with Section 239 thereof; Contractor agrees that neither it nor its subcontractovi shall by reason of race, creed; color, national oti~in, age, sex or disability: (a) discriminate in hi~ against any New York Sta~ citizen who is qualified and available to perform the work; or (b) discriminate a~inst or intimidate any .etoployee hired for the performance of work under this ennh, aet. Contractor is subject to fines of $50.00 per parson par day for any violation of Secton 220-e or Section 239 as well ss poasible termination of this contreet and forfeitore of all moneys due hereunder for a second or subsequent violation. 6. WAGE AND HOURS PROVISIONS. If this is a public work conm~ct covered by Arlicl~ 8 of ~he Labor Law or a building service contract covered by Attcle 9 thereof, neither Contractolas employees nor the employo~ of its subcontractors may be required or permit~i to work more than the number of hours or days stated in said statutes, excapt as otherwise provided in the Labor Law end as set forth in p~Vailing wage and supplement schedules issued by the State Labor Department. Furthermore, Coneactor and its subcontav~on must pay at least the prevailing wage rate and pay or provide the prevailing supplements, including the preminm rates for oveffime pay, as,determined by the S~e Labor Depaitment in acenrdan~ with the Labor Law. Additionally, effective April 28, 2008, if ibis is a public work contract covered by .a.,tticle 8 of the Labor Law, the Contractor unde~tsnds and agrees that thc filing of payrolls in a manner ceusistent with Subdivision 3- e of Section 220 of the Labor Law shall be a ~nditon precedent to payment by the State of any State approved sinus due and owing for work done ~pen the project. 7~ NON-COLLUSIVE BIDDING CERTIFICATION. In accordance with Section 139-d of the State Finance Law, if this conlract was awarded based upon tho subm~ssinn of bids, Contractor affirms, under penalty of perjm3,, that its bid was arrived at independently and without collusio~ aimed at tree CunUactor sulimitted its bid, an authotizod and respo~ible person executed and dallvm~d to tho State a non. collusive bidding ce~fica~en on Contrsotor~s behalf. 8. INTERNATIONAL BOYCOTT PROmBITION. In accordance with Se~un 220-f of tho Labor Law und S~ctien 139-h of the Stere Fimmce Law, if this contract exceeds $5,000, &e Cen~'a~tor agrees, as a material condition of the contract, that neither the Conlractor nor any sulistantially owned or affiliated person, firm, parmersbip or corporation has participated, is pertieipating, or shall paslicipate in an intema~onal boycott in violation of the federal Export November, 2010 Administration Act of 1979 (50 USC App. Sections 2401 et seq.) or regulations thax~mder. If such Contractor, or any of tho aforesaid affiliates of Contrector, is Convicted or is othcrwise found to have violated said laws or regolations upon the final determination of thc 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, detonnination or disposition of appenl (2NYCRR 105.4). 9. SET-OFF RIGHTS. The State shall have ail of its common law, equitable and statutor~ fights of set-off. Thas¢ fights shall include, but not be limited to, the State's option to withhold for the pwposas of sat-off any moneys due to the Contractor undor this contract up to suy smounts due and owing to tho State with raged to tiffs contxact, ~y other contract with any State departo~nt or agency, including any contract for a term commencing prior to the term of this contract, plus any amounts duc and owing to the State for any other reason including, without limitation, tax delinquencies, fee delinquencies or monetary penalties relative th~eto. The State shall exercise its sut-off rights in accordance wish normal State practicos incl~ing, in cases of set-off pursuant to an audit, the finaiization of such audit by thc State agency, its representatives, or the State Comptroller. 10. RECORDS. The Contractor slufll eet~blish and maintain complete ansi accurate books, records, documents, accoonts and other evidence dir~tly pertinent to p~rformance under this contract (hereinafter, collectively, "the Records"). The Records must be Impt for the balance of the calendar yeer in which they were made and for'six (6) additionai years thereeRer. The Slate Comptroller, the Al~mey Generai and e~rsmi~.~ion, as well us the agency or agencies involved in this con~ract, shall have access to the Records during norma~ business hours at an office of the Contractor within the State of New York or, if un such office is available, at a motucliy agreeable and reasonable venue within the State, for the term specified above for. the purposes of inspection, auditing and copying. The State abnll take reesonnble 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: (1) the Coat~'actor .shall timely inform an appropriate State offieiai, 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 colttained herein shall diminish, or in any way adversely affect, the State's right to discovery in any pending or future lliigation. 11. IDENTIIeYING INFORMATION AND PRIVACY NOTI~CATION. (a) FEDERAL EMPLOYER IDENTII.'iCATION NUMBER and/or FEDERAL SOCIAL SECURITY NUMBER. All invoices or Now York State standard vouchers submitted for payment for the sale of goods or services ~r the leesu of real or p~sonal propesty to a Now York State agency must include the payee's identification number, i.e, the seller's or lessors identification number. The number is either the payee's Federal employer identification number or Federal sociai s~rity number, or both such numbe~ when the payee has both such numbers. Failure to include this 'number or numbers may delay payment. Where the payee docs not have such number or numbers, the payee, on Page 2 its invoice or New York State standard voucher, must give the reason or reesons why the payee does not have such D~,mher or numbers. (b) PRIVACY NOTIFICATION. (1) The authority to request the above pe~onai information from a seller of goods or sen*ices or a lessor of real or perso/~l 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 ptincipai purpose for which the information is collected is to anable 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 edmlnistered by the COmmissioner of Taxation and Finance. The information will be used for tax administration pmpuses and for any other porpoee authorized by law. (2) The personal information is requested by the purchasing unit of the agency contzacting to purchase the goods or services or lease the real or personai property covered by this contract or lease. The information is maintained in Now York State's Central Accounting System by the Director of Accounting Operations, Office of the State Comptroller, 1 I0 State Street, Albany, New York 12236. 12. EOUAL EMPLOYMENT OPPORTUNIT~S FOR MINORITIES AND WOMEN. In accordance with Seetion 312 of the Executive Law, if this contract is: (i) a written agreement or purchase ord~ instrument, providing for a total expenditure in excess of $25,000.00, whereby a contracting agency is committed to expend or does exposed funds in re/urn for labor, services, supplies, equipm~t, materiais or any combination of the foregoing, to be performed for, or rendered or firmisbed to the contracting nganc~, or (ii) a vaitten agreement in excess of $100,000.00 whereby a contracting agency is commitled to expend or does expend funds for the acquisition, construction, demolition, raplacemmt, major repair or renovation of real property and improvements thereon; o~ (iii) 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, raplacem~t, major repair or renovation of real propeity and improvements thereen 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 mmital status, and will undertake or continue ~isting pwgrams of affirmative 'action to ensure that minority Eroup m~nbem aad women are afforded equal employment opportonlties without discrimination. Affirmative action shall mcan recruitment, employment, job assigomant, promotion, up~udings, demotion, transfer, layoff, or termln~ion and rates of pay or other forms of onmpensation; (b) at the request of the c~mtracting agency, the Conlractor shall request each employment ngency, labor union, or authorized representative of worla~ with which it his a collective bargaininE or other agreement or lalderstanding, to furnish a written statement that such employment agoncy, labor .union or representative will not diserimln*te on the basis of race, creed, color, n~onai od/in, sex, ~e, diesbility or marital status and-tbet such union or representative will affimu~vefy cooperate in the implementation of th6 contractors obligations herein; and November, 2010 (c) the Contractor shall state, in all sohcitations or advmtisements for employees, that, in tho performance of the State contract, all qualified applicants will be afforded equal employment oppoflun/ties without dis~minafion be0ause of race, creed, color, national origin, sex, age, disainlity or marled Contractor will include tho provisions of 'a", ~'b", and %" above, in every sub0unlract over $25,000,00 for the construction, demolition, replacement, major repair, renovstinn, plannln5 or design of real property and improvements thereon (the %York") except where the Work is for the beneficial use of the ConUacter. Section 312 does not apply to: (i) work, goods or services unrelated to this contract; or (ii) employment outside New York State; or (iii) banld~g sen, ices, insurance polleies or the sale of securities. The State shall consider comphance by a cen~ractor or subcontra?t, or with the requirements of any federal law concerning equal employment opportunity which effectuates the purpose of this section. The conm~ting a~ency shall determine wh~etber the imposition of the requirements of the pwvisinns hereof dupticale or conflict with any such federal law and if such duplication or conflict exists, the coniraedng agency shall waive the applicabitity of Section 312 to the extent of such duplication or conflict. Coniractor will comply with all duly promulgated end lawful rules and regulations of the Governor's Office of Minority and Women's Business Development pemining hereto. 13. ~ In the event of a conilict between the terms of the conhact (including any and all attachments thereto end amendments thereo0 end the terms of this Appendix A, thc terms of this Appendix A shall control. 14. ~. This contra~ shall be gov~ned by the laws of the State of New York exc~t where thc Federal supromacy clause requires othe~vise.. 1S. LATE PAYMENT. Timclinass of payment and any interest to be paid to Cunuactor 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 conlract, including the breach or alleged breach thereof; may not be submitted to binding arbitration (except where sta~ulorily authorized), but must, instead, be heard in a court Of competent jnsisdiction of the State of Nev~ York. 17. 'SERVICE OF PROCESS. In addition to tho methods of service allowed by the State Civil Practice Law & Rules ('CPLR"), Cunh~tor h~shy consents ~o service of proce~ upon it by resistered or certified mail, return receipt reqnos~l. Sc'trice hereunder shall be complete upon Conlractoffs actual receipt of process or upon the State's receipt of the rellim 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 winch service of process can be made. Service by the State to the last known address shall be sufficient. Contractor will have ~ (30) calender days after service hereunder is complete in which ~o 18. PROHIBITION ON PURCHASE OF TROPICAL HARDWOODS. The Contractor cerlifies and wan'ants that all wood products to be used under this conh'act award will be in Page 3 accordance with, but not limited to, the specifications and provisions of Section 165 of the State Finance Law, (Use of Tropical Hardwoods) wlfwh prohibits purchase and use of Iropical hardwoods, unless specifically exempted, by the Stale or any goverinnontal agency or political subdivision or public benefit covporaiion. Qualificefien for an exen~ption under this law will be the responsibility of the conlractor to e~shlish to meet with the appwval of the State. In addition, when any poflion of this contract involving the use of wood~ whother supply or installation, is te be performed by any subconm~'tor, the prime Conm~ctor will indicete and certify in the submitted bid proposal that the subconlraclor has been informed and is in compliance with specifications and pwvisions regarding use of ~ropical hardwoods ss detailed in §165 State Finance Law. Any such use must meet with the approval of the State; otherwise, the bid may not be co~idered responsive. Under bidder certifications, proof of qualification for exemption will be the responsibility of the Cunm~tor to meet with the approval of the State. 19. MACBRIDE FAIR EMPLOYMENT PRINCIPLES. In accordance with tho MacBride Fair Employment Pr~ciplas (Chapter 807 of the Laws of 1992), the Coniractor bereby stipulates lhat the Centcactor either (a) has no business oporatiens in Northern Ireland, or fo) shall tako lawful sUps in good faith to conduct any business operations in Noflhem Ireland in accordance with the MacBride Fair Employment Principles (as desc'dbed'in Section 165 of the New York State Finance Law), end shall permit independent monitoring of compliance with such principles. 20. OMNIBUS PROCUREMENT ACT OF 1992. h is the policy of New Yo~k Stete to ma.~imi~e Opport~t~tias for the pstlieipatiun of New York State business enterprises, including minority and women-owned business on.valses as indde~s, subcontractors and suppliers on its procurement conh~acis. Information on the avallshility of Now York State subcon~actors and suppliers is available from: NYS Depar~en! 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 h~p://www.empire.state.ny.ns A directory of certified minority and women-owned business enteq~ises is available from: NYS Depamnent of Economic Development Division of Minority and Women's Development 30 South Pearl St - 2nd Floor Albany, New York 12245 Telephone: 518-292-5250 Fax: 518-292-5803 ht/p://www.ompiro.state.ny.us Business The Ownibns Procurement Act of 1992 mquirse that by this bid PrOposal or contract, as applicable, Conirantore ceflify that whenever the total bid amount is greater than $1 million: November, 2010 (a) The Coniractor has made reasonable efforts to encourage the participagon of New York State Business Ent~ri~ as suppliers and subcontractor% including c.z~fied minority and Women-owned busin~, enterprises, on this project,.and has retained the documentation of those effom to be provided upon request to the State; Co) The Conlractor has complied with the Federal Equal .Oppommity Act of 1972 (P.L. 92-261), as amended;. (c) The Contractor agre~ to ~mat~ reasonablo effom to pwvide notification to New York State resideats of employment opportunities on this project flmmgh listing any such positions with the lob Sow/ce D/vision of the New York State Department of LCh~, or providing such notification in such m~nam as is consintent with ~de~ng collective bargaining con~ra~ts or ag~m~ts. The Contractor agre~ to dbcoment these effl~rts end to provide said documentation to th~ State upon requ~st~ and (d) The Conlractor acknowledges notice that the State may seek to 0btaln offset ered/te fl/or,~ foreisn cokmiries as a result of this coniract and agrees 1~ oooperate with the State in these efforts. 21. RECIPROCITY AND SANCTIONS PROVISIONS. Bidders are herchy no'dried ~ if thei~ pfiadpal place of bustn~es is located in a comlt~y, nalion, pmvlnco, sW.e or polilical subdivision tl~ pea~li~ New York Stata wndors, and if th~ good~ or serVi~ they offer will be substantially produced or performed ou~ide New YOrk State, tl~ Omnibus Procuren~nt Act 1994 and 2000 amendments (Chapter 684 and which'th~,'y v~uld otherwise obtain. !~'OTE: As of May 15, ~002, the list of disc~tmi~ jurisdi~'ti~as Subjecl to this provision in¢ind~ the ~ of South ~lina, Alaska, W~t Virginia, Wyomin~ ~ and Hawaii. Contact NYS' Degerm~ of Economic l~volopment for a c~t list of jurisdi~tioni subject to this provision. 23. ' COMPLIANCE WITH' CONSULTAN~ ]~,~~. If this is a conixact for ?omulfing service, defined ibr pmpos~ of this ~t to indude' analysis, evaluation, ras~rch, ~raln~.~, data prnoe~ing, and mental h~alth services, acentmtin~ auditing, paralegal, legal or similar services, then, in accordance with S~ion 163 (4-g) of the State Finsnce Law (a~ amcoded by Chapter 10 of the Laws of 2006), the Conlractor shalF timely, accurately and properly comply with the ~quim~nt to submit an annuat ~mploymont report thr the ~ontract tO the ageacy that awarded the cenlraa, the D~parlm~t of Civil Servic~ and the State ~4. PROCUREMENT LOBBYING. To the extent this agr~m~t is a "proc~,,~ot oonh'a~ es defined by State Finsnce Law Sections 139-j and 139-1g by sig~ng this sgr~ment the conh'ac~or c~tifles and affirms fl~t all Page 4 S~ctions 139-j and 139-k ere complete, ~ue and accurate. ~n the event such certification is found to be intemionaliy false or intentionally ~lote, tho State may terminate the agreement by Providing wrltien notification to the Contractor in accordance with the t~ms of tho ngreement. 25. CERTIFICATION OF REGISTRATION 'gQ COLLECT SALES AND C~SATING USg TAX BY SUBCOlVri~~ · To the ~ this a~reement/s ~ comract as defined by Tax · Law Section 5-n, if the contractor fails to make the certification required by Tax LaW Sectio~ .5-a or' if. during the term of the contract, the Department of Tax.on and Finance or the 'covered n~'acy, as defined by Ta~ Law 5-a. discovers that the certification, made under penalty of perjmy, is false, then such failure to file or false Certifl~tio~ shall be a material breach of this conUact and hbis contract may be ~,ii~lvnt~l, by providing terms of the a~reement, if~t~ ~ agency determines that such action is in the best interest Of fho State. November, 2010 APPENDIX B Standard Clauses for All New York S~te Department The parties to the alta~hed coniract, license, lense, ~rant, amendment or other agreement of any kind (hereinafter "the contract" or "this conlract") a~ree to be bound by the following clauses which are hereby made a part of the contract. The word "Contractor" heroin refers to any party to the contract, other than the New Yonk State Department of Environmental Conservation I. Pontponement~ suspension, abandonment or terminnflon by the Department: The Department shall have the ~ht to postpone, suspend, abandon or terminate this conh'act, and such actions shall in no event be deemed a breach of contract, h~ the event of any termination, postponement, delay, suspension or abendomnen~, the Cont~:tor shall immediately stop work, take steps to incur no additional obhgntions, end to limit fiuther expenditures. Within 15 days of receipt of notice. the Contractor shall deliver to the Department all dam, repons, plaus, or other docunrentatiun related to the performance of this conm~t, including but net limited to souse codes and specifications, gusramens, warranties, as-built plans end shop drawings. In any of these evenLs, the Deparunent shall make snttlement with the Contractor upon an equitable basis as determined by the Depar~mcot which shall fix the value of the work which was performed by the Contractor prior to the postponement, suspensmn, abandonment ur t~nnination of this conlamct. This clause shall not apply to this contract if the contract contains other provisions applicable to postponement, suspension or termination of the Contract. H. lndemn~eaflon nnd Holdhuemless The Contractor agrees that it vail indemnify and save harmless the Department end the State of New York from end against all losses from claims, demands, payments, suits, actions, recoveries and judgments of every nature end description brought or recovered against il by reason of any omlasion 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 neeassa~y to satisfy any clahn for damages, costs end the lika, which is asserted nE-i-~t the Department and/or the State of New York. III. Conflict of Interest (a) Or~mizatio~ ~ Interest. To the best of the Contractor's knowledge and belief, the Contractor warrants that there are no r~levant facts or ~u'cumstances which could give rise to an organizational conflict of interest, as herein defined, or that the Cuntra~tor has disclosed all such relevant information to the Department, (1) An organizational conflict of interest exists when the nature of the work to be performed under this conu-act may, without some restriction on future activities, impa/r or appear to tmpair the Contractor's objectivity m performing the work for the Department. (2) The Contractor agrees that if en actual, or potential orgen/zafional conflict of interest is discovered at any time after awnrd, whether befi:)re or during performance, the Conh'actur will immediacy make a full discloenre m writing to the Depariment. This disclosure shall include a description of actions which the Contractor has taken or proposes to take, after consultation with the Department, to avoid, mitigate, or minimize the actual or potential conflict. (3) To the extent that the work under this conh'act r~luires access to personal, proprietary or confidential business or financial data of persons or other companies, and as long ns such -data remains proprietary or confidential, tho Contractor shall protect such data from unauthorized use and disclosure and agrees not to use ii to compete with such compames. Co) Personal Corfflict of Interest: The following provisions with regard to .~n%o~n~t or professional level employee personnel performing under this enntr~t shall apply until the earlier of the termination date of the affected employee(s) or the duration of the contract. (1) A personal conflict of interest is defined as a relationship of an employee, subcontractor employee, or consultant with an entity, that may ~mpair or appear to imp~tr 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 infommtico regarding this conwact, as soon es Contractor becomes aware of such conflict. The Department will notify thc Contractor of the apprQpriate action to be taken. (2) The Contractor agre~ to advise all management App. B 4/17/00 Page 1 or professional level employees involved in the work of this contract, that they must report any personal conflicts of interest to the Contrac~*r. The Contractor must then advise the Department which will advise the Connecter of the appropriate action to be taken. (3) Unless waived by the Department, the Contractor shall certify annually that, to the best of the Contractor's knowledge end 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 Con~ractor and submitted in accordance with instructions provided by the Department. Along with the annual eertification, the Contractor shall also submit en update of any changes in any conflict of interest plea submitted with its proposal for this ebntract. The initial certification shall cover the one-year period from the date of contract award, and all subsequent certificatious shell cover successive annual periods thereafter. The certification is to be submitted no later than 45 days after the close of the previous certification (4) In performing this contract, the Contractor recngnizes that its employees may have access to daa, either provided by the Department or first generated during coniract performance, of a sensitive nature which should not be relessed without Department approval. If this situation occurs, the Contractor agrees to obtain confidentiality agreements from ail iffeeted cmpinyees working un requirements under this contract ~ncludiag subcontractors end consultants. Such agreements shall contain provisions which stipulate that each employee agrees not to discloee, either in whole or in part, to any entity externsl to the Department, Department of Health or the New York State Depariment of Law, any information or data provided by the Department or first generated by the Conm~ctor under this conhact, any site-specific oust information, or any enforcement strategy without first obtaining the written permission of the Department. If a Conlractor, through en employee or otherwise, is subpoenaed to test/fy or produce .documents, which could result in such' disclosure, the Cuntractor must provide immediate advance notification to the l~parlmant so that the Depariment can authorize such disclosure or have thc opportunity to take action to prevent such disclosure. Such a~eements shall be effective for the life of the contract and for a pe!'iod of five ($) years after completion of the contract. (c) ' Reraed/es , The Dapartm©nt may terminate this contract in whole or in pa/t, it it deems such ~m~-mtion necessary to avoid en organizational or personal conflict of inte~st, or an unauthorized disclosuse of information. If the Con~ractor fails to make required disclosures -or misrepmseets relevant information to the Department, the Department may terminate the contract, or pursue such othe{ remedies as may be permitted by the terms of Clause I of this Appendix or other applicable provisions 9fthis corel'act 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 Contr/ctor ~ to insert in each subcon~'act or ceusultsnt agreement placed hereunder (except for subcontracts or consultant agreements' for well d~ting, fence drecting, plumbing, utility hookups, security ~trd services, or electrical services) provisions which shall conform substantially to the lansuage of this clause, including this paragraph (e), unless otherwise authorized by the Department. If this i~ 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. (0 Due to the scope end nature of this contract, the Contractor shall observe the following restrictions on future hazardous waste site conlracting for the duration of the contract. (1) The Contractor, during the life of the work assignment end for a period of three (3) years after the completion of the work aasi/nment, agrees not to enter into a contract with or to represent any party with respect to any work relating te remedial activities or work pertaining to a site where the Contractor previously perforated work for the Department under this contract without the prior written approval of the Department. (2) The Contractor agrees in advance that if any bids/proposals are submitted for any work for a third party that would require written approval of the Department prior to entering into a con~ct because of the restrictions of this clause, then the bids/proposals are submitted at the Contractor's own risk, end no ~laim shall be made against the Depemnant to recover bid/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 Con~ractor must be submitted on forms supplied end appro~ted by the Department. Each payment request must contain such items of information and supporting documentetion as are required by the Department, and shall be all-inclusive for the period of t/me covered by the App. B 4/17/00 Page 2 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 ~ contract, the Contractor agrees that it will comply with all applicable federal laws and regulations, including bet 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 !anguage of this clause. VI. ludepeadent Contractor The Contractor shall have the status of an independent contractor. Accordingly, the Con~or 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 con~ract. It further agrece that it will not make any claim, demand or application to the Deparmaent for any right or l~ivilege applicable to an officer or employee of thc Department, including but not limited to Worker's compensation coverage, unemployment insurance benefits, social security coverage, or retirement memhership or credit. VII. Article I$-A Requirements The terms contained in this clause shall have the definitions as given in, and ~!.l be construed according to the intent of Article 15-A of the Executive Law, 5 NYCRR Part 140, at. seq.,. Article 52 of the Environmental Conseryation Law and 6 NYCRR PaR 615, et. seq., ~ applicable, and any gcais established by this clause are subject to the intent of such laws and regulaticos. (a) If the maximum conlract price herein equals or exceeds $25,000, and this contract is for labor, services, supplies, equipment, or materials; or (b) If the maximum cenlract price he.in equals or exceeds $100,000 and this contract is for the acquisition, consmwtion, demolition, replacement, major, repair or renovation of ~ property end 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 ami 313 end the applicable regulations, (1) The Contractor is required to make good faith effom to ~ubeontract at least 18.8 % of the dollar value of this con~ract to Minority Owned Business Entmprises (MBEs) and at least 20.5 % of such value to Women Owned Business Enteq~rises (WBEs). (2) The Contractor is required to make good faith efforts to employ or contractually require any Subcontractor with whom it contracts to make good faith effor~ to employ minority group members for at least ~10 % of, end women for at least 10 % of, thc workforce hours requi~-ed to perform the work under this contract. (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 Co~p. Div. Minority & Women's Business Development 30 South Pearl Street Athany, New York 12245 Phone: (518) 292-5250 Fax: (518) 292-5803 end Empire State Development Corp. 633 Third Avenue New York, NY 10017 Phone: (212) 803-2414 Fan: (212) 803-3223 interoet: www.empire,state.ny.ns\esd.hhn (d) The Contractor agrees to include thc provisions set forth in paragraphs (a), 0o) end (c) aimve end paragraphs (a), (b), and (c) of clause 12 of Appeadix A in every subcontract in such a msoner that the provisions will he binding upon each Subcontractor as to work under such subconh'act. For the purpose of this paragraph, a "subcontract" shall mean an agreement providing for a total expenditor~ in excess of $25,000 for the conshaiction, demolition, mplaenmant, major u~alr, r~ovation, plarming or design of real property and improvements thereon in which a portion of the Continent's obligation under a State contract is undertaken or assume& (e) The Con~ is required to make good faith efforts to utilize the MBE/WBEs identified in the utilization plan tO the ex,at indicated in such plan, end otherwise to implement it ~eording to its terms~ TI~e Contractor is requested to report on such hnplementefion periodically as provided by the conh'act, or annually, whichever is more frequent. VIH. Compliance with applicable laws (a) Prior to the commencement of any work under ~ contract, the Contractor is required to meet all legal requhements nacessm'y in the pezformanco of the App. B 4/17/00 Page 3 contract. This includes but is not limited to compliance with all applicable federal, state and local laws and regulations promulgated thereunder. It is the Conh'actor's responsibility to obt3/m any necessary permits, or other.authorizations. By slg~mg this con~ract, the Contractor effilmstively r~prasants that it has complied with said laws, unles~ it advises the Department otherwise, in writing. The Dapar'onont sign~ this con~rect in reliance upon this representatlue. CO) During the term of this conlract, and any extensions thereof, the Contractor must mmin in compliance with said laws. A failure to notify the Depamnent 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 thc Conhactor. (a) The Con/factor specifically agrees te submit, in the first instance, any dispute relating to this conlract to the designated individual, who shall render a written decision and furnish a copy thereof to the Conlractor. (1) Thc Conlrector must request such deciiion 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 b~ the final ngency detorminalion, unless the ConUactor files a written appeal of thst decision with the designated appeal individual ("])Al") within twenty days of receipt of tim decision. Co) Upon receipt of the written appeal, the DA1, will review the re~erd and decision. Following divisional procedures in effect st that time, tho DAI will take one of the following actions, with written notice to the ConUactor. (l) Rormmd the mstter to the program staff for further negotiation or information if it is determined that the mstter is not r/po for review; or (2) Determine that there is no need for funthar act/on, and that the dat~n/nafion of the designated individual is confirmed; ur (3) Make u deten~mstion on the record as it exists. (c) The decision of the DAI shall be the final agency decision udiass.the ConUactor files a written appeal of that decisio~ with the Chair of the Contract Review Committee ("CRC") within twenty days of receipt of that decision. The designated individual to hear disputes is: C. 3. Carayianins, P,E., Chief (Name and Title) (AOllress) ($18) 402-867S (Telephone) The designated appcel individual to review decisions is: David ViUde, P.1/., Bureau Director (Name and Title) (Address) (518) 402-8678 (Telephone) The Chair of the Con~'act Review Committee is: ~ Dapar~nant of Enviwnmontal Conservation Nancy W. Lussier, Chair Contract Review (Sommittee 625 Broadway, 10~ Floor Albany, NY 12233-5010 Telephone: (518) 402-9228 (d) Upon receipt of the written appeal, the Chair of the CRC, in consultation with the members of the CRC aud the Office of General Counsel, will tske one of the following ectlous, or a combination thereof, with written notice to the Contractor. (1) Remand the mstter to program staff for additional fact fmding,nagotistion, 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. (o) Following i/decision to proceed pursuant to (d) 3, above, the Chair of the CRC shall convene a proceeding in accordance with the CRC's established conh-act dispute resolution guidelines. Thc proceeding will provide the Conh'ector with an opportunity to be heard. (f) Following a decision pursuant to Id) 2 or (d) 3, the CRC shall make a written recommendation to the Assistant Commissioner for Adminislrstion who shall render the flue! agency (g) At any time during the dispute resolution process, and upon mutual a~'oc~ent of the parties, the Office of App. B 4/17/00 Page 4 Hearings and Mediation Services (OHMS) may be requested to provide mediation sendces or other apprup~'iate means to assist in resolving thc dispute. Any findings or recommendations made by the OHMS will not bo binding on either payed. (h) Final agency determinations shall be subject to review only pursuant to Article 78 of the Civil Practi~ Law and Rules. (1) Pending final determination of a dispute heramder, thc Conixactor shall proceed diligently with the performance of the Contract in accordance with thc decision of the designated individual. Nothing in this Contact shall he construed as m~king final thc decision of any sdministrative officer upon a question of law. 0) (1) Notwithstanding the foregoing, at tho option of the Conthwtor, the following shall be subject to review by the CRC: Disputes arising under An'icle 15-A of the Executive Law (Minority and Women Owned Business pm~icipafion), the Depm'hnent's determination with respect to the adequacy oftbe Contractor's Utilization Plan, or the Contractor's showing of good faith effom to comply therewith~ A request for a review before the CRC should be made, in writing, within twenty days of receipt of the Depn.eanant's determination. (2) The CRC will promptly convane a review in accordance with Article 15-A of the Executive Law and the regulations promulga~l thereunder. X. Labor Law Provisions (a) When applicable, the Contractor shall post, ina location designated by the DeparUnent, a copy of the New York State Department of Labor schedules of prewlling wages and supplements for this project~a copy of all re-determinations of such schedules for thc project,, the Workers' Compensation Law Section 51 notice, all other notices rmtulred by law to be posted at the site, thc Department of Labur notice that this project is a public work project on which each worker is entitle~ to rcanivo thc prevailing wages and supplements for their occupation, and all other notices which the Depan~nont directs the Contractor to ppst. The Contractor shall provide a surface for such notices which is satisfactory to thc Department. The Contractor shall maintain such notices in a legiblc manner and shall replace any notice or schedule which is damaged, defaced, illegible or removed for any reason. Contractor shall post such notices before commancing any work on the gte and shall mainta/n such notices until all work on thc site is complete. (b) When appropriate, contractor shall distribute to each worker for this Contimct 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 fur the occtlpation at which he or she is wurking. Worker includes eraployecs of Contractor and all Subcontractors and all employees of suppliers entering the site. Such notice shall be distributed to each worker before they s~u't performing any wurk of this con,act. At the time of distribution, Contractor shall have each worker s'zgn a statement, in a form provided by the Department, certifying that the worker has received the notice reqffn'ed .by this section, which signed statement shall be maintained with the payroll records required by the following para~aph (c). (c) Contractur shall maintain on the site the original certified payrolls ur certified transcripts therenf which Contractor and all of its Subcon~wac~ors are required to maintain pu~uant 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 o f issuance of the first payroll, and every thirty days therealer, the Contractor and every subconh'actor must submit a transcript of the original payroll to the Depariman{, which transcript must be subscribed end affirmed as true under penalty of perjury. XI. Offset In accordance with State Law, the Department has the authur/ty to adm/nis~ratively offset any monies due it from the Contractor, from paymants due to the Contractor under this contract. The Deparm~ent may also (a) assess interest or late payment charges, and collection fees, if applicable; (b) charge a fee fur any dishonored che~k; (c) refuse to renew ce~in licenses and permits. · XII. Tax Exemption l%rsuant to Tax Law Section 1116, the State is exempt bom sales and use taxes. A standard state voucher is sufficient evidence thereof. For federal excise taxes, New Yurk's regish-ation Nember 14740026K covers tax-free transactions under the Internal Reyenue Code. XIII. Litigntion Support In the cvcnt that the De~rtmant becomes involved in litigation related to the subject matter of this conh-act, the Contractur agrees to provide background supi~r t and other llfigntion support, including but not limited to depositions, appearances, and testimony. Compensatinn will be negotiated and based on rates established in the contract, or ns may otherwise be provided in the conlract. App. B 4/17/00 Page 5 XIV. Equipment Any equipment purchased with funds provided under this contract, shall remain the property of the Department, unlas's otherwise provided in the contract. The Contractor shall be liable for all costs for maintaining the prepurt~ in good, usable condition. It shall be returned to the Deparnnent upon completion of the contract, in such cund/tinn. unless the DapsrUnent elects to sell the equipment to the Conffactor, upon mutually agreeable terms. XV. Inventions or Discoveries Any invention or discovery first made in performance of this Contrac~ shall be the property of thc 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 Con,actor may be ~rented a non-exclusive license. XVL Patent and Copyright Protection If any patented o~ copyrighted material is involved in or results from the performance of this Contrect~ this Article shall apply. (a) The C0ntrector shall, at its expense, defend any suit instituted against the Department and indemnify the Depar"nent against any award of dnmnS~s 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 consuroable supplies famished by the Couiractor under this Contract infringes any patent, copyright or other proprietary light; prbvided the Depnrmtent gives the Contractor: (1) prompt written notice of any action, claim or threat of infringement suit, or other suit, and (2) the oppo~mity to take over, settle or defend such action at the Conlractor's sole expense, and (3) ail available information, assistance and authority necessary to the actiun, at the Contractor's sole expense. The Contractor shall control the defense of any such suit, including appeals, end all negnti~om to effect settlement, but shall keep the Depar~ent fully informed concenung the progress of the litigation. (b) If the use of any item(s) or parts thereof is held to infringe a patent or Copytil~ht end its use is enjoined, or Contractor bellevus it will be enJoined, the Contractor shall have the right, at ils election and expense to tske action in the following order of precedunce: (I) procure for the Department the righ~ to continue using the same item or paris 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 nouinfringing items of at least the same quality and performance; (4) if none of thc above remedies are available, discontinue its use and eliminate any future charges or royalties pc~aining thereto. The Contractor will buy beck the infringing product(s) at thc State's book value, or in the event of a lease, the parties shall terminate the lease. If discontinuation or ehininatinn 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 m eqmty is commenced against the Department at/sing out of a claim that the Department% use of any item or material pursuant to or resulting from this Contract h/fringes any patent, copyright or proprietary right, and such action is forwarded by the DeparUnent to the Contractor for defense end indemnification pursuant to this Article, the DoparUnent shall copy all pleadings and document~ f~t~verded to the Contractor together with the forwarding correspondence and a copy of this Contract to the Office of the Attorney General of the State of New York. If upon receipt of such request for defense, or at any time thereafter, the Contractor is of the opinion that the allegn6ous in such action, in whole or m pan, are not covered by the indemnification set forth in this Article, the ConUactor shall immediately notify the Department and the Office of the Attorney General of the State of New York in writing end shall specify to what ex~nt the Contractor believes it is end 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 secuse a continuance to permit the State of New York tO appear and defend its interests in cooperation with Contractor as is approprlats, including any jurisdiedonal 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 Deperlment4 (3) failure of file Department to use updated items provided by the Contractor fur avoiding infringement; (4) use of items in combination with apparatus or devices not delivered by the Contrac'mr; (5) use of items in a manner for which the same were n~ither designed nor contemplated; or (6) a patent or copyright in which the Department or App. B 4/17/00 Page 6 any affiliate or subsidia~ of the Department has any direct or indirect interest by license or other, vise. (c) The fo~golng states the Contractor's entire liability for, or resulting from, patent or copyright infringement or claim therco£ XVH. Force Majeure The term Force Majeure shall include acts 0f God, work stoppages due to labor disputes or strikes, fires, explosions, epidemics, riots, wy rebellion, sabotage or the like. Ifa failure of or delay in perforomuce by either party results from thc occurrence of a Force Majeure event, the delay shall be period equivalent to the time lost because of the Force majenre event; if and to the extent that: (a) The delay or fa/lure was beyond the conOol of the purty afl. ted and not due to its fault or negligence; and (b) The delay or failure was not extended because of the affected party's fsilure to usc all reasonable diligence to overcome the obs~01e or to resume performance immediately after such obstacle was overcome; end (c) The aff~'ted party provides notice within (5) days of the onset of the event, that i~ is invoking the protection of this prowsmn. XV1H Freedom of Information Requests The Contractor agrees m provide the Department with eny records which must be released in order to comply with a requext pursuant to the Ft~tom of Information Law. The Depaxanent will pwvide the con.actor with an opportunity to identify martial 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), thc terms of this Appendix B shall control, In the event of a conflict between the terms of this Appendix B. and the tenus of Appendix A, the terms of Appeudix A shall control. App. B 4/17/00 Page 7