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HomeMy WebLinkAboutElizabeth Field AirportRESOLUTION 2012-902 ADOPTED DOC ID: 8355 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2012-902 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON DECEMBER 18, 2012: RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs Supervisor Scott A. Russell to execute the Aviation Capital Project Agreement between the Town of Southold and the New York State Department of Transportation for the 5-year Capital Improvement Project No. 0913.19 at Elizabeth Field Airport, Fishers Island, New York, subject to the approval of the Town Attorney. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: William Ruland, Councilman SECONDER: Albert Krupski Jr., Councilman AYES: Ruland, Talbot, Doherty, Krupski Jr., Evans, Russell II AVIATION CAPITAL PROJECT AGREEMENT ELIZABETH FIELD AIRPORT PROJECT NO. 0913.19 CONTRACT NO. T THIS AGREEMENT made this 17th day of September, 2012 by and between the People of the State of New York (hereinafter referred to as "State") acting by and through the Commissioner of Transportation (hereinafter referred to as "Commissioner" and "Department" respectively) with offices at 50 Wolf Rd, Albany, New York 12232, and Town of Southold (hereinafter referred to as "Grantee") with offices at Southold, New York. WHEREAS, Article 2 of the Transportation Law authorizes the Commissioner to provide for the accomplishment of airport or aviation projects, and to provide funding to private owners, municipalities and authorities in connection therewith; and WHEREAS, the Grantee is the sponsor of an airport known as Elizabeth Field Airport in Suffolk County (hereinafter referred to as the "Airport"); and WHEREAS, the Grantee has made and will make application to the Commissioner for State aid for the accomplishment of airport or aviation projects at the Airport; and WHEREAS, the Grantee has applied for and will secure available Federal Assistance for the Projects from the Federal Aviation Administration, (hereinafter called "FAA Grant Agreements"); and WHEREAS, the Projects will be approved by the Commissioner as consistent with sound transportation development policy and planning concepts and eligible for State participation; and WHEREAS, the Grantee is authorized to enter into this Agreement by resolution, a copy of which is attached hereto and made a part hereof; and WHEREAS, State funding for said airport or aviation projects has been and will be provided by budget bills duly enacted into law. NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth, the State and the Grantee agree as follows: Article 1. Purpose of Agreement. The purpose of this Agreement is to provide for the undertaking of airport or aviation projects (each project hereinafter referred to as the "Project"), the details of which are more fully described in Schedule A-1 attached hereto, with State financial assistance to the Grantee in the form of a grant, and to state the terms, conditions, requirements, and restrictions upon which such State assistance will be provided and the mutual understandings and agreements of the parties as to the manner in which the Project will be undertaken and completed, and the Project facilities and equipment will be used. This grant is established with the Grantee for a period of ten years commencing on the date first above written a~er this Agreement is approved by the State Comptroller, and terminating ten years therefrom, and shall not be dependent on the official duty continuity of the signatories or their successors. The Agreement may be concluded at any time upon written agreement between the Commissioner and the official representative(s) of the Grantee subject to the written approval of the State Comptroller. Article 2. Documents Forming the Agreement. Schedule A, containing individual project information including project description, cost, funding allacatic, n and schedule, i~ ,attached h~reto and is he~ebymade a pan of this agreement as ff set forth fully herein. Appendix A, standard clauses for all New York State contracts, is attached hereto and is hereby made a part of this agreement as if set forth fully herein. Appendix A-1, Supplemental Title VI Provisions (Civil Rights Act) Appendix B, containing State bidding requirements, is attached hereto and is hereby made a part of this agreement as if set forth fully herein. Appendix 2, Iran Divestment Act. Resolution of the Grantee (if applicable) affn'ming the terms of this Agreement and authorizing the Agreement to be executed. Article 3. The Project. The Grantee agrees to complete and provide for the use of project facilities and equipment m accordance with Federal law, rules and the FAA Grant Agreements, and the terms and conditions of this Agreement. The Grantee shall commence and continue operation of the Project upon its completion and shall not discontinue operation or dispose of the Project without the approval of the Commissioner. The Grantee shall also provide for the payment of its share of the cost of the Project. .~.icle 4. The Grant. The State share of project costs is fifty percent of the non-Federal costs to complete the Project approved by the Commissioner and procured in part through Federal funding. The maximum amount of the State's share of funding is as set forth in Schedule A. The Grantee agrees to apply for additional Federal assistance which may become available for the Project, subject to such conditions as the Commissioner may require, in order to maximize the amounts of Federal assistance received or to be received for all projects in the State. Article 5. Use of Project Facilities and Equipment. On completion of the Project, the Grantee shall commence and continue operation and maintenance of the Project as its own cost and shall not discontinue operation, or dispose of the Project, without the approval of the Commissioner, for the period of time corresponding to the period of useful life for the Project as determined by references to Section 61 of the State Finance Law. No part of any Project or Project facility shall be sold, rendered unusable, or otherwise relinquished without obtaining prior written approval of the Commissioner and State Comptroller. If any Project parts or facilities are so sold, other than for their replacement in such service with like facilities or equipment, ~he $~a~e ~hare of the proceeds of such a sale will be returned to ~he State Comptroller for deposit in the General Fund. The Grantee will operate and maintain the Airport in full compliance with the terms of the FAA Grant Agreement and all the covenants made by the Grantee to the FAA are deemed made to State by this Agreement as if fully set forth herein. .... f~.~i~=~ u~ ~.= ~&£po~ oeve£ope~ with State aid and all those usable for the landing and taking off of aircraft, will be available to State Aircraft at all times, without charge. The Grantee shall submit to the Co~issioner, at such time as he may require, such financial statements, operating information and other data as may be deemed necessary by the Co~issioner to assure compliance with this Agreement and to prepare his annual report on the scope and results of the Project. The Airport and all Airport records and documents affecting the Air~ort, including deeds, leases, operation and use agreements, and other instruments, will be made available for inspection by any duly authorized representative of the Commissioner upon reasonable request. The Grantee will furnish to the Commissioner upon request, a true copy of any such document. Article 6. Accomplishment of the Project. Pursuant Co Federal, State and Local Law. In the event that any election, referendum, approval, permit, notice or other proceedings or authorization is requieite under applicable law to enable the Grantee to enter into this Agreement or to undertake the Project hereunder, or to observe, assume, or carry out any of the provisions of this Agreement, the Grantee will initiate and consunm~ate, as provided by law, all actions necessary with respect to any such matters so requisite. Funds of the Grantee. The Grantee shall initiate and prosecute to completion all proceedings necessary to enable the Grantee to provide its share of actual total cost of the Project, as provided in Schedule A of this Agreement, on or prior to the time that such funds are needed to meet the Project costs. Co Submission of Proceedings, Contracts and Other Documents. The Grantee shall submit to the Commissioner and the State comptroller such data, reports, records, contract and other documents relating to the Project as the Commissioner and the State Comptroller may require. Article 7. The Project Budget. Costs for any new Project approved by the FAA and the Commissioner, and costs incurred for any change that increases the State share set forth in Schedule A or any amendment thereto, will be eligible for State reimbursement under this Agreement only after an amendment is made to the Agreement in writing and approved by the State Comptroller. 3 .~rticle $. Accounting Records. Establishment and Maintenance of Accounting Records. The Grantee shall establish and maintain for the Project, in accordance with req~ireJnents established by the Commissioner, and approved by the State Comptroller, separate accounts within its ~xisting accounting system or set up independently, to be known as the project account. The Grantee shall segregate and group project costs so that it can furnish on due notice, ~m~t '. ...... a_i=~ . i. Purchase price or value of land ii. Incidental costs of land acquisition v. ~ngineering costs of plans and designs vi. Engineering costs of supervision and inspection vii. O~her administrative costs viii. Costs of equipment acquisition ix. Miscellaneous costs not otherwise included Funds Received or Made Available for the Project. The Grantee grant payments received from the Federal Government on account of the Project. The Grantee shall also record in the project account such funds as it may allocate for payment of its share of the actual cost of the Project. The Grantee shall advise the comissioner monthly in writing of the amounts recorded in the project account or at such times as the Commissioner may prescribe. The Commissioner or the State Comptroller may audit Comp=roller may require. Costs Incurred for the Project. The Grantee shall charge to the project account all eligible costs of the Project. Costs in excess of the latest approved budget or attributable to actions waich have not received the required approval of the Comissioner shall not be considered eligible costs. In specific cases, where it is impractical to determine precise costs of certain indirect or service functions, eligible costs will include such allowances for these costs as may be approved by the Commissioner and the State Comptroller. Such approval will be based upon an audit determination that the amounts reimbursed will not exceed actual Eligible Costs. Eligible Project costs consist of any costs involved in accomplishing a project including those of: (1) Making field surveys; (2) Preparing plans and specifications; (3) Accomplishing or procuring the accomplishing of the work; fo (~) Supervising and inspecting construction work; {5) Acquiring land or an interest therein, or any easement uhrough or other interest in airspace; and (6) Administrative and other incidental costs incurred ~pecifically in connection with accomplishing project, and that would not have otherwise been inourred. The c=u~ d~&ib=d in unis section, ~ncluding the value of land, labor, materials and equipment donated or loaned to the Grantee and appropriated to the Project by the Grantee, are eligible for consideration as to their allowability, except for: (1) That part of the cost of acquiring an existing private airport that represents the cost of acquiring passenger automobile parking facilities and buildings to be used as hangars; (2) The cost of materials and supplies owned by the Grantee or furnished from a source of supply owned by the ~rantee if: (i) Those materials and supplies were used for air~ort development before the effective date of the grant; or (ii) Those costs are not supported by proper evidence of quantity and value. (3) The cost of nonexpendable machinery, tools, or equipment owned by the Grantee and used under a project by the Grantee's force account, except to the extent of the fair rental value of that machinery, tools, or equipment for the period it is used on the project; (4} The value of any land, including improvements, donated to the sponsor by another public agency; and (5} Any costs incurred in connection with raising funds by the Grantee, including interest and premiUm charges and administrative expenses involved in conducting bond elections and in the sale of bonds. To be an eligible project cost, for the purposes of computing the amount of a grant, an item that is paid or incurred must, in the opinion of the Commissioner: (1) Have been necessary to accomplish airport development in conformity with the approved plans and specifications for an approved project and with the terms of the grant agreement for the project; Be reasonable in amount; Have been incurred after the effective date of the Grant Agreement, except for those costs incurred to apply for Federal funds; prepare project engineering reports, plans and specifications; to identify, describe and determine value of land acquisition required for the project such as surveys, title searches and abstracts, appraisals and legal fees and to acquire real property; and (3) 5 Article 9. (4) 3e supported by satisfactory evidence. Documentation of Project Costs. All costs charged to the Project account, including any approved services contributed by Grantee or others, shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers ~videncing in proper detail the nature and propriety of the ~harges, in accordance with the rules and regulations of the Commissioner as approved by :he State Checks, Orders, and Vouchers. Any check or order drawn by the Grantee with respect to any item which is or will be chargeable against the projec~ account will be drawn only in accordance with a properly signed voucher then on file in the office of the Grantee stating in proper detail the purpose for which such check or order is draw~. Ail checks, payrolls, invoices, contracts, vouchers, orders, or other accounting documents pertaining in whole or in part to the Project shall be clearly identified, readily accessible, and to the extent feasible, kept separate and apart fro~ all other such documents. Reports. The Grantee shall prepare an interim report at the end of its fiscal year accounting for the expenditures of the funds of the State, the Grantee, any Pederal agency, and any other source with respect to the Project. Payments. Payments shall be made to the Grantee upon request to the Commissioner under the following conditions: i. Such request for reimbursement of the State's share of authorized project expenditures shall be made on a regular periodic basis, as approved by the Conm~issioner. Cumulative payment requests shall in no event exceed the total cumulative amount of State funding approved by the Commissioner. Li. Such request shall be in a fo~ established by the Commissioner, and shall include a certification that Federal reimbursement has been received therefor. The docuraente supporting such expenditures by the Grantee shall be maintained in a secure manner by the Grantee at its headquarters or at such other place as shall be readily accessible to the Commissioner and the State Comptroller for purposes of auditing project costs and expenditures. All such accounting records ~hall be retained by the Grantee until six (6) years after final payment is made hereunder. iii. Subject to the other provisions hereof, applications for payment will be honored by the Commissioner except that the State may elect by notice in writing to withhold any payment if: Misrepresentation. The Grantee shall have made any misrepresentation of a material nature in its application for funds hereunder, or any supplement thereto or amendment thereof, or in or with respect to any document or data furnished to the Commissioner or other State official in connection with a Project under this Agreement; (2) Litigation. There ia then pending litigation with raspect uo the Performance by the Grantee of any of its duties or obligations which may jeopardize or adversely effect the Project, this Agraement, or payments to the Project; <3) Concurrence by State. The Grantee shall have taken any action pertaining to the Project which Under the ~st~lished procedures r~,i~ ~ -ri~ ?u~s~oner or shall hav~ made-~2~.-== ~proval of the incurred related obligations without the approval of the (4) Conflict of Interest. There has been in Connection with the Project any violation of the conflict of interest rule, regulation, ordinance or statute applicable to the Grantae, its officers, members, or employees; or (5) Default. The Grantee shall be in default under any of the provisions of this Agreement. Article 10. In no event shall the making by the State of any payment pursuant to this Agreement constitute or be construed as a waiver by the State of any breach of covenant or any default which may then exist, on the par= of the Grantee, and the making of any such payment by the State while any such breach or default shall exist shall in no way impair Or prejudice any right or remedy available to the State in resPect of such breach or default. Termination of Suspension of State's Obligation. Termination or Suspension Generally. If the Grantee abandons or, before completion, finally discontinues the Project; or if, by reason of any of the events or conditions set forth in paragraphs (1) to (5), inclusive, of Article 9 a.iii, hereof, or for any other reason, the commencement, prosecution, or timely Completion of the Project by the Grantee is rendered improbable, infeasible, impossible or i~legal, the Commissioner may, by written notice to the Grantee, susPend any or all of its obligations under this Agreement until such time as the event or condition resulting in such susPension has ceased or been corrected, or the Commissioner may terminate any or all of its obligations under this Agreement. Action Subsequent to Notice of Termination or Suspension. Upon receipt of any final termination notice under this Section, the Grantee shall proceed promptky to carry out the actions required therein which may include any or all of the following: i. Necessary action to terminate or Suspend, as the case may be, Project activities and contracts and such other actions as may be required or desirable to keep to a minimum State costa. ii. Furnish a statement of the status of the Project activities and of the project account as well as a proposed schedule, plan and budget for terminating or suspending the closing out project activities and contracts, and Other undertakings the cost of which are otherwise includable as project costs; and iii. Provide to the Commissioner an estimate of the State's share of the costs arising from the termination, ~us.Dension, or closing out of auch activities, contracts, and other undeA~:akings. The closing out shall be carried out in conformity with the latest schedule, and budget approved by the Commissioner upon the basis of terms and conditions imposed by the commissioner upon the failure of the Grantee to furnish ~he schedule, plan and budget within a reasona~le time. the acceptance of a remittance by the State of ~,v er all Project Funds Ur~icuulf ~ece~ved by the Gran~ae or =ne closing out of State financial participation in the Project shall not constitute a waiver of any claim which the State may otherwise have axising out of this Agreement. Ax~cicle 11. Audit Disallowances. Costs claimed or previously reimbursed that cannot be SUpl0Orted as outlined herein are subject to audit disallowance by =he Commissioner, the State Comptroller, the FAA, and\or the officer of the InsDector · . - =~= SUbsequently disallowe~ a .... ' ~,oun=s paAd to the Commissioner, or at the option of the Stm~U s~ect to recovery by the ---, w~lA be offset or reduced against current or future reimbursement claims on the same or other Ax~:icle 12. Audit and Inspection. The Grantee shall permit, and shall require its contractors to permit the Commissioner,s and the State ComptrOller,s authorized representatives to inspect all WOrk, materials, payrolls, records of PerSonnel, invoices of materials and other relevant construction, equipment, data and records; and to audit the books, records and accounts of the Grantee Pertaining to the Grant and the development of the Project. Az~cicle 13. Manner of Performing Work. The work constituting the Project may be performed by the employment of the forces and the use of the equi~ent of the Grantee as authorized by the Commissioner or by contract let pursuant to bidding procedures, more particularly referred to in Appendix B hereof. Ar~Cicle 14. Executory Clause. The Grantee agrees that this Agreement shall be deemed executory only to the extent of the ~nies available, and nc lim])ility shall be incurred by the State beyond the monies availabke for the purDose. Article 15. E-Mail Provision Notice. 1. All notices permitted or required hereunder shall be in writing and shall be transmitted either: (a) (b) (c) (d) (e) via certified or registered United States mail, return receipt requested; by facsimile transmission; by personal delivery; by expedited delivery service; or by e-mail. Such notices shall be addressed as follows or to such different addresses as the parties may from time-to-time designate: State of New York Department of Transportation Title: Address: Telephone Number: Facsimile Number: E-Mail Address: Jackie Van Heusen Assistant Aviation Grants Coordinator NYSDOT Aviation Bureau 50 Wolf Road P.O.D. 5-4 Albany, NY 12232 518-485-7691 518 -457-9779 Jackie. Vanheusen@dot .ny.gov [Contractor Namel Name: Mr. Scott A. Russell Title: Town Supervisor Address: 53095 Main Road, PO Box 1179, Southold, NY 11971 Telephone Number: (631) 765-1889 Facsimile Number: (631) 765-1823 E-Mail Address: scott.russell(~,,townsouthold.ny, us 2. Any such notice shall be deemed to have been given either at the time of personal delivery or, in the case of expedited delivery service or certified or registered United States mail, as of the date of first attempted delivery at the address and in the manner provided herein, or in the case of facsimile transmission or email, upon receipt. 3. The parties may, from time to time, specify any new or different address in the United States as their address for purpose of receiving notice under this Agreement by giving fifteen (15) days written notice to the other party sent in accordance herewith. The parties agree to mutually designate individuals as their respective representatives for the purposes of receiving notices under this Agreement. Additional individuals may be designated in writing by the parties for purposes of implementation and administration/billing, resolving issues and problems and/or for dispute resolution. 9 Article 16. Contract Payments. Contractor shall provide complete and accurate billing invoices to the Agency in order to receive payment. Billing invoices submitted to the Agency must contain all information and st~pportmg documentation requh'ed by the Contract, the Agency and the State Comptroller. Payment for invoices submitted by the Contractor shall only be rendered electronically unless paymen! Oy paper check: is expressly authorized by the Commissioner, in the Commissioner's sole discretion, due to extenuating circumstances. Such electronic payment shall be made in accordance '.vith ordinary State procedures and practices. The Con~'actor shall comply with the State Comptroller's procedures to authorize electronic payments. Authorizalion forms are available at :he State Comptroller's website at v,'~,w.osc.state.ny.us/epay/inde~htrn, by e-mail al: evunit~osc.state.ny.us or by telephone at 518-474-4032. Conl~actor acknowledges that it will not receive payment on any invoices submitted under this Conu'act if it does not comply with the State Comptroller's electronic payment procedures, except where the Commissioner has expressly authorized payment by paper check as set forth above. 10 IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Agreement to be executed by their duly authorized officers as of the date herein above set forth. Department of Transportation Certification "In addition to the acceptance of this contract, I also certify that original copies of dfis signature page will be attached to all other exact copies of this contract." NEW YORK STATE DEPARTMENT OF TRANSPORTATION GRANTEE -T~6o/[ By: Commissioner of Transportation DATE: By: DATE: APPROVED AS TO FORM: STATE OF NEW YORK ATTORNEY GENERAL APPROVED: BY: Assistant Attorney General DATE: For the New York State Comptroller pursuant to Section 112 of the State Finance Law DATE: Sponsor ACKNOWLEDGbIENT STATE OF NEW YORK COUNTY OF On this day. of ,201 , before me personally came ~0.0"~?~ ~ otX£ e~ { ( ,to me kn~w and known to me to be the -._._~ t~ ¢~"-tJ~J"C>~3'' of the .~(.o,q r'M5' _ ~e~q~,c::~,~, the same person described in and ~ho executed the foregoing instrument; that ~he is authorized to execute the foregoing instrum'ent on behalf of the ~o.,',4 oC~ '5~,,-,/~"('~'o~/~ursuant to and as provided by statute. Notary Public Contract: Grantee: Facility: T Town of Southold ELIZABETH FIELD Schedule A-1 PIN Project Description Estimated Total Cost Federal Share Local Share State Sham 0913.19 Conduct an Environmental Study for 5 $156,000.00 $140,400.00 $7,800.00 $7,800.00 Year AClP Projects Maximum State Share Payable* $8,970.00 The State share payable under this Agreement is 50% of the non-federal share of eligible costs. In accordance with the separate federal grant referenced herein, the federal share shown above may be increased administratively, upon request of the grantee based on increases in eligible costs, to a maximum of 15%. If and when the federal sham increases, the State share shall be increased proportionately, without further amendment to this Agreement, up to the maximum amount shown above. APPENDIX A STANDARD CLAUSES FOR NEW YORK STATE CONTRACTS December, 2011 STANDAAI P~l_q!$!$ FOB NYS COli1'flAg11 TABLE OF CONTENTS 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 21. 22. 23. 24. 25. Executory. Clause Non-Assignment Clause Comptroller's Approval Workers' Compensation Benefits Non-Discrimination Requirements Wage and Hours Provisions Non°Collusive Bidding Certification International Boycott Prohibition Set-Off Rights Records Identifying Information and Privacy Notification Equal Employment Opportunities For Minorities and Women Conflicting Terms Governing Law Late Payment No Arbitration Service of Process Prohibition on Purchase of Tropical Hardwoods 51acBride Fair Employment Principles Omnibus Procurement Act of 1992 Reciprocity and Sanctions Provisions Compliance with New York State Information Security Breach and Notification Act Compliance with Consultant Disclosure Law Procurement Lobbying Certification of Registration to Collect Sales and Compensating Use Tax by Certain State Contractors, Afffiiates and Subcontractors Pa~e 3 3 3 3 3 3 4 4 4 4 4 4-5 5 5 5 5 5 5-6 6 6 6 6 6 7 7 ['age 2 December, 2011 3?AId~AJIB CLASSES Fgll NYS CONTRi~TS ~F~Hrf A STANDARD CLAUSES FOR NYS CONTRACTS 7;:e parties to the attached contract, license, lease, amendment ,;r otner agreement of any kind {hereinafter. "the contract" or "his contract') agree to he hound by the tbilov, ing clauses ,.aich are hereby madc i pain of the contract Ithe word · .xil¢tber a contractor, licenser, licensee, lessor, lessee or any ether par~'): I. EXECUTORY CLAUSE. In accordance ',,~ith Section 41 of the State Finance Law. the State shall have no Iiability ,oder this contract to the Contractor or to anyone else beyond :ands appropriated and available for this contract. 2. NON-ASSIGNMENT CLAUSE. In accordance with Section 13S &the State Finance Law, this contract may not bc assigned by the Contractor or its right, title or interest therein ~signed, transferred, conveyed, sublet or otherwise disposed o( without the State's previous written consent, and attempts :o do so are null and void. Notwithstanding the foregoing. ,ucb prior written consent of an assignment of a contract let pursuant to Article XI of the State Finance Law may be · .*hived at the discretion &the contracting agency and with the concurrence of the State Comptroller where the original contract was subject to the State Comptroller's approval, ,.here the assignment is due to a reorganization, merger or consolidation of the Contractor's business entity or enterprise. The State retains its right to approve an assignment and to :cquire that any Contractor demonstrate its responsibility to do ':usiness with the State. The Contractor may, however, assign ts right to recei'~e payments ;',,ithout the State's poor ,,rotten ?:a-clcipation pursuant to Anicle 5-A o£the State Finance Law. t. COMPTROLLER'S APPROVAL. In accordance with Seeuon 112 of the State Finance Law lot. it' this contract is ~ith the Slate University or City Lniversity of X, ew York, Section 355 or Section 6218 of the Education Law). if this contract exceeds SS0.OI)O lot the minimum thresholds agreed :o t~y the Office &the State Comptroller tbr certain S.L.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 -,tutu{cry amount, or it; by this contract, the State agrees to give something other than money when the value or reasonably estimated value of such consideration exceeds $10,000, it shall not be valid, effective or binding upon the State until it has been approved by the State Comptroller and tiled in his office. Comptroller's appro,,al of contracts let by ::~e Office of General Services is required when such contracts exceed SSS,000 {State Finance Law Section 163.6.a). 4. ~A, ORKERS' COMPENSATION BENEFITS. In ~ccordance v, ith Section 142 of the State Finance Law, this ,-ontract ,,hail be told and of no force and effect unless the C,:ntractor shall provide and maintain co,,erage during the lite of this contract for the benefit of such employees as are :'equirad to be co~ered by Ihe provisions of ;he Workers' Compensation Law. 5. NON-DISCRIMINATION REQUIREMENTS. To the extent required b~ .krticie i5 of the Executi,.e Law kno~n as the Human Rights La~v) and ail o~hec State and provisions, the Contractor will not discriminate against any employee or applicant tbr emplo~,ment because of race, creed. coior, sex. national origin, sexual orientation, age. Uisability. genetic predisposition or carrier status, or marital status. Furthermore. in accordance with Section 220-e of the Labor Law, if this is a contract tbr the construction, alteration or repair of any public building or public work or for the aqanufacture, sale or distribution of materials, equipment or supplies, and to the extent that this contract shall be performed v, ithin the State &New York, Contractor agrees that neither it disability, sex, or national origin: la) discriminate in hiring against any New York State citizen who is qualified and available to perlbrm the work; or lb} discriminate against or intimidate any employee hired tbr the per'tbrmance of v, ork under this contract. If this is a building ser,,ice 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: (aI discriminate in hiring against any New York State citizen who is qualified and a~,ailable to perform the work; or {b) discriminate against or intimidate any employee hired tbr the pertbrmance of work under this contract. Contractor is subject to fines of S50.O0 per person per day tbr any 'Aolation of Section 220-e or Section _:9 as well as possible termination of this contract lild tbrfeiture of ail moneys due hereunder for a ,¢cond or -ubsequem violation. 6. WAGE AND HOURS PI,~OVISION~;. If this is a public '.~ork contract covered by Art/cie S ct' the Labor Law or a building ser~ ice contract co~ered by Article 9 thereot~ 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 otherxsise 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 pay or provide the pre,,ailing supplements, including the premium rates for overtime pay, as determined by the State kabor Department in accordance x*ith the Labor Law. Additionally, effective April 28. 2008, if this is a public ~ork contract co',erad by Article g of the Labor Law. the Contractor ~,nderstands and agrees that the filing of payroi[s in a manner consistent with Subdivision 3-a of Section 220 of the Labor Law shall be a condition precedent to payment by the State of any State approved sums due and owing tbr work done upon the project. Page 3 December, 2011 ,~TANIIARg _P- f_~$ FIB NYS CONTRACT~ ", NON-COLLUSIVE BIDDING CERTIFICATIOn. In .i~'cc, ruzr. ce ,xith Section 139-d of the State Finance Lay,. if :h:s contract x~as ax~arded based upon the submission of bids, C'znrractor affirms, under penalty of perjury. ~hat its bid ;~as ~m:ea at independently and :~ithout coilusion aimed at restric:ine competition. Contractor further aifirms that, at the ::;ne Contractor submiaed its bid, an authorized and responsible person executed and delivered to the State a non- coilusi',e bidding certification on Contractor's behalfi $. iNTERNATIONAL BOYCOTT PROHIBITION. In accordance xsith Section 220-f of the Labor Lay, and Section 1)9-h of the State Finance Law, if this contract exceeds S5.000. the Contractor agrees, as a material condition of the contract, that neither the Contractor nor any substantially oo. ned or affiliated person, firm, partnership or corporation has participated, is participating, or shall participate in an !ntemational boycott in violation of the federal Export Administration Act of 1979 1.50 USC App. Sections 2401 et seq. I or regulations thereunder. If such Contractor, or any of :he aforesaid affiliates of Contractor. is convicted or is otherwise found to have violated said laws or regulations upon ~e 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 shail be rendered tbrfeit :md ~oid. The Contractor shall so notit~ the State Comptroller ,~ithin five (5) business days of such conviction, determination or disposition of appeal (2NYCRR I05.4). 9. SET-OFF RIGItTS. l'he State shall have all of its c,~mmon lay,, equitable and statutory rights of set-oft~ These .':~hts shail include, but not be limited to, the State's option to ,,.~,rnhold tbr the purposes of set-off any money,i due to the Comractor under this contract up to any amounts due and ,:,~ing to ~he State with regard to this contract, any other contract x~ith any State department or agency, including any contract for a term commencing prior to the term of this contract, plus any amounts dtle and owing to the State tbr any omer reason including, without limitation, tax delinquencies. :~:e delinquencies or monetary penalties relative thereto, rhe State shall exercise its set-off fights in accordance with normal State practices including, in cases of set-off pursuant to an audit, the finalization of such audit by the State agency, its representati'~es, or the State Comptroller. 10. RECORDS. The Contractor shall establish and maintain complete and accurate books, records, documents, accounts and other e~idence directly pertinent to performance under :his contract thereinalier, collectively, "the Records"). The Records must be kept for the balance of the calendar year in '~Nch they were il'lade and tbr six 1fl additional years :!~oreatier. The State Comptroller, the Attorney General and ,;nv other person or emily authorized to conduct an ex;ruination, as well as the age:ney or agencies involved in this contract. ~hall have access to the Records during normal :~usiness hours at an office of the Contractor e, ithin the State of New York or. if no such office is a',aitable, at a mutually Page 4 agreeable and reasonable venue within the State. for the term specified abo,,e for the purposes of inspecnon, auditing and copying. The State >hail take reasonable steps to protect from public disclosure any of the Records ~hich are exempt fi.om cisclosure under Section at of :he Public Officers Law Ithe "Statute") pro'dried that: ii) the Contractor shall timeiy inform an appropnate ~tate otnctm, m wrmng, mat sam recorus should not be disclosed: and {ii} said records shall be sufficiently identified: and (iii) desig'nation of said records as exempt under the Statute is reasonable. Nothing contained herein shall diminish, or in any ~,ay adversely affect, the State's right to disco,,ery in any pending or future litigation. I1. IDENTIFYING INFORflATION AND PRIVACY NOTIFICATION. Iai Identification Numberls). E,,ery invoice or New York State Claim t'or Payment submitted to a New York State agency by a payee, for payment for the sale of goods or services or for transactions {e.g,, leases, easements. licenses, etc.} related to real or personal property must include the payee's identification number. The number is any or all of the following: ii) the payee's Federal emplof, er identification number. {ii) the payee's Federal social security number, and/or till) the payee's Vendor Idemification Number assigned by the Statewide Financial System. Failure to include such number or numbers may delay payment. Where the payee does not have such number or numbers, the payee, on its in;oice or Claim for Payment. must give the reason or reasons ~hy thc payee does not have such number or numbers. ~bl Privacy NoPfication. {1) The authority to request the above personal information from a seller of goods or ser'.ices or a lessor of real or personal property, and the authority to ~naintain such information, is found in Section 5 of the State Tax Law. Disclosure of this information by the seller or lessor to the State is mandatory. The principal purpose tbr which the information is collected is to enable the State to identity indi,~iduals, businesses and others who have been delinquent in filing tax returns or may ha',e 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 pu~oses and for any other purpose authorized by law. 12) 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 information is maintained in the Storewide Financial S~,stem by thc Vendor Management Unit within the Bureau of State Expenditures, Office of the State Comptroller. 110 State StreeL Albany. Sew York 12236. 12. EOUAL EMPLOYMENT OPPORTUNITIES FOR MINORITIES AND WOMEN. In accordance with Section 312 of the Executi',e Law and 5 NYCRR 143, if this contract is: ii) a written agreement or purchase order instrument. pro',iding for a total expenditure in excess of 525.1)O0.11O, whereby a contracting agency is committed to expend or does expend funds in return for labor, ser',ices, supplies. equipment, materials or any combination of the foregoing, to December, 2011 -e perlbrmed for. or rendered or fiamished to the contracting ~ency: or ~ii a written %n'eement in excess of S IO0.000.OO ~ aere~y a contracnng agency is committed [O expend or does exr~enu t:ands for the acquisition, construction, demolition. eniacement, major repair or reno'.atton of real property and )t SlO().oOO.o0 ~,hereby the owner ora State assisted housing project is commined to expend or does expend funds tbr the :hereon for such project, then the following shall apply and by , gning this agreement the Contractor certifies and affirms that it is Contractor's equal emplo>ment opportunity policy that: , a) The Contractor will not discriminate against employees or .:ppiicants for employment because of race, creed, color, national origin, sex. age. disability or marital status, shall ,,hake and document its conscientious and active etTorts to employ and utilize minority group membem and women in its '.~ork force on State contracts and wilt undertake or continue existing pro.ams of affirmative action to ensure that minority group members and women are afforded equal employment cpportunities without discrimination. Affirmative action shall mean recruitment, employment, job assignment, promotion. u~gradings, demotion, transfer, layoff, or termination and rates pt pay or other forms of compensation; t,~) at the request of the contracting agency, the Contractor .,~all request each employment agency, labor union, or :;ahorized representative of workers with which it has a cotlecti',e bargaining or other agreement or understanding, to ',rnish a ,,~rltten statement that such employment agency) i,bor umon or representative will not discriminate on the basis pt r::ce, creed, rotor, national origin, sex, age, dNability or n,lrital ~tatus and that such union or representati,,e .ttl;,rmati~eiy cooperate in the implementation of the C~mractor's obligations herein: and re) r~e Contractor sha[l state, in all solicitations or :d~ ertisements ~or emplo?ees, that, in the pertbrmance of the State contract, all qualified applicants will be afforded equal employment opportunities without discrimination because of r2ce. creed, color, national origin, sex, age, disability or mardal 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 impro,,ements thereon {the "Work") except where the Work is for the beneticial use of the Contracton Section 312 does not ~pply to: Ii) work, goods or serx ices unrelated to this contract; ,'r till employment outside New York State. The State shall consider compliance by a contractor or subcontractor with the r:quirements o£any tederal [aw concerning equal employment opportunity which effectuates the purpose of this section. The contracting agency shall determine whether the imposition of the requirements of the provisions hereof duplicate or conflict Page 5 'Mth any such federal law and if-;uch duplication or conflict exists, the contracting agency shail waixe the .'.ppiicability Section 312 to the extent of such dupdcatmn or conflict. Contractor wilt comply with ail duly promulgated and cuies and regulations of the Deparzment of Economic Development's Division of Minority and Women's Development pertaining hereto. 13. CONFLICTING TERMS. [n ~be e~ent of a conflict between t~e terms of t~e contract (including any and ad atlachments thereto and amendments thereot) and the terms of ;his Appendix A. the terms of this Appendix A ~hall control. 14. GOVERNING LAW. This contract shall be governed by the laws of the State of New York except ~xhere the Federal >upmmacy clause requires otherwise. 15. LATE PAYMENT. Timeliness of payment and any interest to be paid to Contractor for late payment shall be governed by Article ll-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 ser'.ice allowed hy the State Civil Practice Law & Rules I'CPLR"). Contractor hereby consents to service of process upon it by registered or certified mail, return receipt toques, ted. Service i~ereunder shall he complete upon Contractor's .lctual r'eceipt of process or upon the State's receipt of the return thereof by the Lnited States Postal Ser'~ice as refused or undeliverable. Contractor must promptly notify the State. in · ,~riting, of each and every change of address to which serxice of process can be rhode. Service by the State to the last known address shall be su£ficient. Contractor will ha~c thirty (30) calendar day,; at,er ~ervice hereunder is complete in which to respond. 18. PROHIBITION ON PURCHASE OF TROPICM, ItARD¥~OODS. The Contractor certities and warrants that ail wood products to be used under this contract award will be in accordance u, ith, but not limited to. the specifications and provisions of Section 165 of the State Finance Law, {Use of Tropical Hardwoods) which prohibits purchase and u,~e of tropical hardwoods, unless specifically exempted, by the State or any governmental agency or political subdivi:,ion or public benefit corporation. Qualification for an exemption under this [aw will be the responsibility of the contractor to establish to ,neet w/th the approval of the State. In addition, x~hen any portion of this contract in,~oiving the use of woods, whether supply or installation, is to be performed by any subcontractor, the prime Contractor wtil indicate and certify in the submitted bid proposal that the December. 2011 ~TANOAROrlBB~I~FiINYSCOlilTAC11 '~°Pfllll~A ,,~bcontractor has been informed and is in compliance with .~ec~fications and pro,,~sious regarding use of tropical ?ardv,,oods as detailed in 3165 State Finance Law. Any such .;me must meet ~ith me approval of the State; other:wse, the ~id may not he considered responsive. Under bidder certifications, proof of quauticatton tbr exemption will be trie res0onsibility of the Contractor to meet wrth the appro',al pt :ne State. 19. %I/~CBRIDE F.MR EMPLOYMENT PRINCIPLES, in accordance with the MacBride Fair Employment Principles ,Chapter S07 of the Laws of 1992), the Contractor hereby ,dpuiates that the Contractor either la) has no business c. perations in Northern Ireland, or (bi shall take lawful steps in ~ood faith to conduct any business operations in Northern ~'reiand in accordance with the MacBride Fair Employment Principles {as described in Section 165 of the New York State Finance Law), and shah permit independent monitoring of compliance with such principles. 20. OMNIBUS PROCUREMENT ACT OF 1992, It is the poiicy of New York State to maximize opportunities t'or the participation of New York State business enterprises, !nciuding minority and women-owned business enterprises as bidders, subcontractors and suppliers on its procurement ',ntbrmation on the a~ailab ty of New York State ,cmcontractors and suppliers is available (rom: ~,YS Department of Economic Development Di~i~ion for Small Business :;~ South Pearl St -- 7'" Floor \:bany. New York 12245 Fclephone: 51~.292-$220 Fax: 518-2g2-5~84 \ directory of ce~ified minority and women-owned business NY S Department of Economic Development Division of Minority and Women's Business Development 30 South Pearl St -- 2nd Floor Albany, New York 12245 Te}ephone: 518-292-5250 Fax: 51 ~-292-5503 http:, www.empire.state, ny.us The Omnibus Procurement Act of 1992 requires that by ,:gning this bid proposal or commct, as applicable, Contractors certit:y that whenever the total bid amount is ~reater than SI million: ~a) The Contractor has made reasonable efforts to encourage r<e participation of New York State Business Enterprises as ~uppiiers and subcontractors, including certified minority and ,.~omen-owned business enterprises, on this project, and has Page 6 retained the documentation of these et~'orts to be provided upon request to the State; (b) The Contractor has compiied I~,ith the Federal Equal Opportunity Act of 1972 (P.L. 92-261), as amenuad; (ti Ina contractor agrees to ma~e reasoname etrorts 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 pro,vic, ling such notification in such manner as is consistent v, ith 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) Thc Contractor acknowledges noficc that the State may seek to obtain offset credits ~om 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 otter will he substantially produced or performed outside New York State, the Omnibus Procurement Act 1994 and 2000 amendments (Chapter 684 and Chapter 3~3. respectively) require that they be denied contracts v, hich they would otherwise obtain. NOTE: As May 15, 2002, the llst of discriminatory jurisdictions subject to this pro,is(on includes the states of South Carolina, .Alaska. West Virginia, Wyoming. Louisiana and Hax,,aii. Contact NYS Department of Economic De,,elopment tbr a currcm list of jurisdictions subject to this provision. 22. COMPLIANCE WITH NEW YORK STATE INFORMA'rlON SECURITY LIREACH AND ~,OTIFICATION ACT. Contractor shall comply with the ~roMsions of the New York State I nformat on Security Breach and Notification Act (General Business Law Section ~9q-aa; State Technology Law Section 208). 23. COMPLIANCE WITH CONSULTANT DISCLOSURE LAW. If this is a contract for consulting services, defined for purposes of this requirement to include analysis, evaluation, research, training, data processing, computer programming, engineering, en,,ironmentaL health, and mental health services, accounting, auditing, paralegal, legal or similar services, then, in accordance with Section 163 {4~g) of the State Finance Law {as amended by Chapter 10 of the Laws of 2006), the Contractor shall timely, accurately and proper~y comply w/th the requirement to submit an annual employment report for the contract to the agency that awarded :he contract, the Department of Civil See/ice and /he State Comptroller. December, 2011 "4. PROCUREMENT LOBBYING. To the extent this .~__,reemcnt is a "procurement contract" as defined by State Finance Law Sections 139-j and 139-k. by signing this agreement the contractor certifies and affirms that ail d!sc~osures made in accordance ,.~ith State Finance Law ~ecnons 139-j and 139-k are complete, true and accurate. In the e',ent such certitication ts ibund to be intentionally false or intentionally incomplete, the State may terminate the a,=q'eement by providing ~,rit~en notification to the Contractor in accordance with the terms of the agreement. 25. CERTIFICATION OF REGISTRATION TO COLLECT SALES AND COMPENSATING LSE TAX BY CERTgIN STATE CONTRACTORS. AFFILIATES s,.g D SL' BCO NTRACTO RS. To the extent this agreement is a contract as defined by Tax Law Section 5-a. if the contractor t'ails to make the certification required by Tax Law Section 5-a or ir'during the :cfm o£ the contract, the Oepa~rnent of Taxation and Finance or the covered agency, as defined by Tax Law 5-a, discovers that the certification, made under penalty of perjury, is false, then such failure to the or false ceinitication shall be a material 3reach of this contract and this contract may be terminated, by providing v, rirten notification to the Contractor in accordance ,~ith the terms or' the agreement, it' the covered agency ,ietermines that such action is in the best interest or'the State. Page 7 December, 2011 APPENDIX A-1 SUPPLEMENTAL TITLE VI PROVISIONS (CIVIL RIGHTS ACT) (To be included in all contracts) During the performance of this contract, the contractor, for itself, its assignees and successors ;n interest (hereinafter referred to as the "contractor") agrees as follows: nondiscrimination in Federally assisted programs of the Department of Transportation of the United States, Title 49, Code of Federal Regulations, Part 21, and the Federal Highway Administration (hereinafter "FHWA") Title 23, Code of Federal Regulations, Part 200 as they may be amended from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract. (2) Nondiscrimination: The Contractor, with regard to the work performed by it during the contract, shall not discriminate on the grounds of race, religion, age, color, sex or national origin, sex, age, and disability/handicap in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR, section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations. (3) Solicitations for Subcontractors, Includinq Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the contractor of the contractor's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin, sex, age, and disability/handicap. (4) Information and Reports: The contractor shall provide all information and reports required by {he Regulations or directives issued pursuant thereto, and shall permit access to its books, ~-ecords, accounts, other sources of information, and its facilities as may be determined by NYSDOT or the FHWA to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish this information the contractor shall so certify to NYSDOT's Office of Civil Rights or FHWA, as appropriate, and shall set forth what efforts it has made to obtain the information. (5) Sanctions for Noncompliance: In the event of the contractor's noncompliance with the nondiscrimination provisions of this contract, NYSDOT shall impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: a) Withholding of payments to the contractor under the contract until the contractor complies; and/or b) Cancellation, termination or suspension of the contract, in whole or in part. (6) Incorporation of Provisions: The contractor shall include the provisions of paragraphs (1) through (6) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The contractor shall take such action with respect to any subcontractor procurement as NYSDOT or the FHWA may direct as a means of enforcing such provisions including sanctions for non-compliance: Provided, however, that in the event a contractor becomes involved in, or is threatened with. litigation with a subcontractor or supplier as a result of such direction, the contractor may request NYSDOT to enter into such litigation to protect the interests of NYSDOT. and, in addition, the contractor may request the United States to enter into such APPENDIX B REQUIREMENTS FOR FEDERALLY AIDED TRANSPORTATION PROJECTS (January 2009) There is a substantial body of requirements attached to the use of Federal highway or ;ransportation aid. These requirements create or overlay processes, procedures, documentation reaLJirements, atJthori2'ations ~.ngrnvals and certifirtatinn~ fhet may he ~,hsta~t!_~!!y greeter or different from those that are not funded with Federal-aid and proceed under applicable State and local laws, customs and practices. Under Title 23 of the United States Code, NYSDOT is responsible for the administration of transportation projects in New York State to which NYSDOT provides Federal highway or transportation-related aid. Through this Agreement, which provides or is associated with such funding, NYSDOT delegates various elements of project and funding administration as descnbed elsewhere in this Agreement. In undertaking a Federally aided project, the Municipality/Sponsor, Authority or Project Manager designated under this Agreement with Federal-aid funding or project administration agrees to proceed in compliance with all the applicable Federal-aid requirements. NYSDOT, in cooperation with FHWA, has assembled the body of Federel-aid requirements, procedures and practices in its "Procedures for Locally Administered Federal-Aid Projects" (available through NYSDOT's web site at: www.dot, n¥.qov/plafap). In addition, the Municipality/Sponsor, Authority or Project Manager designated under this Agreement for Federal-aid funding or project administration that enters into Federally aided project construction contracts is required to physically incorporate into all its Federally aided construction contracts and subcontracts there under the provisions that are contained in Form FHWA-1273 (available from NYSDOT or electronically at: www.fhwa.dot.qovlproqramadminlcontracts11273.htm). addition to the referenced requirements, the attention of Municipality/Sponsor hereunder is .:irected to the following requirements and information: ~'ION DISCRIMINATION/EEO/DBE REQUIREMENTS The Municipality/Sponsor and its contractors agree to comply with Executive Order 11246, .=ntitted "Equal Employment Opportunity" and Department of Transportation regulations (49 CFR Parts 21, 23, 25, 26 and 27) and the following: NON DISCRIMINATION. No person shall, on the ground of race, color, creed, national origin, sex, age or handicap, be excluded from participation in, or denied the benefits of, or be subject to, discrimination under the Project funded through this Agreement. EQUAL EMPLOYMENT OPPORTUNITY. In connection with the execution of this Agreement, the Municipality/Sponsor's contractors or subcontractors shall not discriminate against any employee or applicant for employment because of race, religion, age, color, sex or national origin. Such contractors shall take affirmative actions to ensure that applicants are employed, and that employees are treated dudng their employment, without regard to Iheir race, religion, color, sex, national origin or age. Such actions shall include, but not be ',;mired to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and setection for training, including apprenticeship. 3. DISADVANTAGED BUSINESS ENTERPRISES. In connection with the performance of this Agreement, the Municipality/Sponsor shall cause its contractors to cooperate with the State ;n meeting its commitments and goals with regard to the utilization of Disadvantaged 5usiness Enterprises (DBEs) and will use its best efforts to ensure that DBEs will have ccportunity to compete for subcontract work under this Agreement. Also, in this connection ~he Municipality or Municipatity/Sponsor shall cause its contractors to undertake such actions as may be necessary to comply with 49CFR Part 26. FFi3FRAL RINGLE AUDIT REQUIREMENTS Non-Federal entities that expend $500,000 or more in a year in Federal awards from all sources are reduired to comply with the Federal Single Audit Act provisions contained in U.S. Office of Management and Budget (OMB) Circular No. A-133, "Audits of States, Local Governments, and Non-Profit Organizations". Non-Federal entities that expend Federal awards from a single source may provide a program specific audit, as defined in the Circular. Non-Federal entities that expend less than $500,000 in a year in Federal awards from all sources are exempt from Federal audit requirements for that year, except as noted in Sec. 215 (a) of OMB Circular A-133 Subpart B-Audits, records must be available for review or audit by appropriate officials of the cognizant Federal agency~ the New York State Department of Transportation, the New York State Comptroller's Office and the U.S. Governmental Accountability Office (GAO). Non-Federal entities are required to submit a copy of all audits, as described above, within 30 days of issuance of audit report, but no later than 9 months after the end of the entity's fiscal year, to the New York State Department of Transportation, Contract Audit Bureau, 50 Wolf Road, Albany, NY 12232. Unless a time extension has been granted by the cognizant Federal Agency and has been filed with the New York State Department of Transportation's Contract Audit Bureau, failure to comply with the requirements of OMB Circular A-133 may result in suspension or termination of Federal award payments. THE CATALOG OF FEDERAL DOMESTIC ASSITANCE The Catalog of Federal Domestic Assistance (CFDA2), is an on-line database of all Federally- aided programs available to State and local governments (including the District of Columbia); Federally recognized Indian tribal governments; Territories (and possessions) of the United States; domestic public, quasi-public, and private profit and nonprofit organizations and institutions; specialized groups; and individuals. THE CFDA IDENTIFICATION NUMBER OMB Circular A-133 requires all Federal-aid recipients to identify and account for awards and expenditures by CFDA Number. The Municipality/Sponsor is required to identify in its accounts all Federal awards received and expended, and the Federal programs under which they were received. Federal program and award identification shall include, as applicable, the CFDA title and number, award number and year, name of the Federal agency, and name of the pass-through entity. The most commonly used CFDA number for the Federal Aid Highway Planning and Construction program is 20.205. ' The designated cognizant agency for audit shall be the federal awarding agency that provides the predominant amount of direct funding to a recipient unless OMB changes it. 2 ,~v.cfda.~ov/ Additional CFDA numbers for other transportation and non-transportation related programs are: 20.215 20.219 20.XXX 20.XXX 20.505 20.507 20.509 20.600 23.003 23.008 Highway Training and Education Recreational Trails Program Highway Planning and Construction - Highways for LIFE; Sun'ace Transportation Research and Development; Federal Transit-Metropolitan Planning Grants Federal Transit-Formula Grants Formula Grants for Other Than Urbanized Areas State and Community Highway Safety Appalachian Development Highway System Appalachian Local Access Roads PROMPT PAYMENT MECHANISMS (a) You must establish, as part of your DBE program, a contract clause to require prime contractors to pay subcontractors for satisfactory performance of their contracts no later than 7 calendar days from receipt of each payment you make to the prime contractor. (b) You must ensure prompt and full payment of retainage from the prime contractor to the subcontractor within 7 calendar days after the subcontractor's work is satisfactorily completed. You must use one of the following methods to comply with this requirement: (1) You may decline to hold retainage from prime contractors and prohibit prime contractors from holding retainage from subcontractors, (2) You may decline to hold retainage from prime contractors and require a contract clause obligating prime contractors to make prompt and full payment of any retainage kept by prime contractor to the subcontractor within 7 calendar days after the subcontractor's work is satisfactorily completed. (3) You may hold retainage from prime contractors and provide for prompt and regular ncremental acceptances of portions of the prime contract, pay retainage to prime contractors uasea on these acceptances, and require a contract clause obligating the prime contractor to ,cay all retainage owed to the subcontractor for satisfactory completion of the accepted work within 7 catendar days after your payment to the prime contractor. (c) For purposes of this section, a subcontractor's work is satisfactorily completed when all the tasks called for in the subcontract have been accomplished and documented as required by the recipient. When a recipient has made an incremental acceptance of a portion of a prime contract, the work of a subcontractor covered by that acceptance is deemed to be satisfactorily completed. (d) Your DBE program must provide appropriate means to enforce the requirements of this section. These means may include appropriate penalties for failure to comply, the terms and conditions of which you set. Your program may also provide that any delay or postponement of payment among the parties may take place only for good cause, with your prior written approval. (e) You may also establish, as part of your DBE program, any of the following additional mechanisms to ensure prompt payment: (1) A contract clause that requires prime contractors to include in their subcontracts !anguage providing that prime contractors and subcontractors will use appropriate alternative dispute resolution mechanisms to resolve payment disputes. You may specify the nature of such mechanisms. (2) A contract clause providing that the prime contractor will not be reimbursed for work performed by subcontractors unless and until the prime contractor ensures that the su~)contractors are promptly paid for the work they have performed. (3) Other mechanisms, consistent with this part ar)d applicable state and local law, to ensure [hat DBEs and other contractors are fully and promptly paid. APPENDIX 2 IRAN DIVESTMENT ACT As a result of the Iran Divestment Act of 2012 (Act), Chapter I of the 2012 Laws of New York, a new provision has ~een added to the State Finance Law (SFL), § 165-a, effective April 12, 2012. Under the Act, the Commissioner o£the O~'Hce o£General Services (OGS) will be developing a list (prohibited entities list) of "persons" who de engaged in "Savestment activities in Iran" (both are defined terms in the law). ?u~suant to SFL § 165-a(3)(b), the imtial list is :xpected to be issued no'later than 120 days u~er the Act's effective date, at which time it will be oosted on the OGS 3y entering into this Contract, Contractor (or any assignee) certifies that once the prohibited entities list is posted on the OGS website, it will not utilize on such Comr~ct any subcontractor that is identified on the prohibited entities list. Additionally, Contractor agrees that after the list is posted on the OGS website, should it seek to renew or extend the Contract, it will be required to certify at the time the Contract is renewed or extended that it is not included on the prohibited entities list. Contractor also agrees that any proposed Assignee of the Contract will be required to certify that it is not on the prohibited entities list before the New York State Department of Transportation (NWSDOT) may approve a request for Assignment of Contract During the term of the Contract, should NYSDOT receive information that a person is in violation of the above- :et'erenced certification, NYSDOT will offer the person an opportUmty to respond. If the person fails to demonstrate ~hat it has ceased its engagement in the investment which is in violation of the Act within 90 days after the determination of such violation, then NYSDOT shall take such action as may be appropriate including, but not limited to, imposing sanctions, seeking compliance, recovering damages, or declaring the Contractor in defaulL NYSDOT reserves the right to reject any request for assigrtment for an entity that appears on the prohibited entities list prior to the award of a contract, and to pursue a responsibility review with respect to any entity that is awarded a contract and appears on the prohibited entities list at~ter contract award.