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Peconic Bay Estuary Program
RESOLUTION 2014-536 ADOPTED DOC ID: 9886 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2014-536 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON JUNE 17, 2014: RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs Supervisor Scott A. Russell to execute Amendment No. 3 to the State Assistance Contract between the Town of Southold and the New York State Department of Environmental Conservation in connection with a no-cost extension of time extending the term of Contract #C303426 (Peconic Bay Estuary Program) from March 31, 2014 to December 31, 2014, subject to the approval of the Town Attorney. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: James Dinizio Jr, Councilman SECONDER:William P. Ruland, Councilman AYES: Ghosio, Dinizio Jr, Ruland, Doherty, Evans, Russell New York State Department of Environmental Conservation Alm Division of Water Bureau of Water Compliance,4s' Floor 625 Broadway, Albany, New York 12233-3506 Phone: (518)402-8177 • FAX: (518)402-8082 Joe Martens Website: www.dec.nv.00v commissioner Honorable Scott A.Russell RECEIVED Supervisor Town of Southold SEP 8 2014 P.O. Box 1179 53095 Main Street Town Attorney's Office Southold,New York 11971 SEP 0 3 M4 Dear Supervisor Russell: I am pleased to enclose your fully executed copy of the no-cost Amendment No.3 to Contract No.C303426 for the stormwater retrofit projects within the Peconic Bay Estuary. The contract end date has been extended from March 31,2014 to December 31,2014. In addition,a new Appendix A and a revised Appendix B have been added. There has been no change to the dollar amount of the contract or to the scope of work or budget line item(s). The Department expects that the project will be completed by the end of the contract term. It is also imperative that the contractual work be done within the time parameters of this contract as outlined in Schedule A,the approved work plan. Progress must be demonstrated as set forth in work plan,to the satisfaction of the Department. Failure to do so may be deemed an abandonment of this project and cause for suspension or termination. To request payments,please submit a New York State Standard Voucher(signed and dated)and supporting documentation directly to me at:NYSDEC, Division of Water,625 Broadway,4s'Floor, Albany,New York 12233-3506. Please also send a copy to: Julie Nace,NYSDEC,Bureau of Marine Resources,205 N Belle Meade Road, Suite 1,East Setauket,NY 11733. Please be sure to refer to the contract number noted above and to include your federal tax identification number on the voucher. The supporting documentation should be in the same format as the budget submitted with your scope of services. One copy of the documentation requirements to be used for all payment requests is enclosed for your reference. A supply of vouchers as well as self-certification and expenditure reporting forms to be submitted with each payment request is also enclosed. For payments to be processed,you must be in compliance with the reporting requirements as specified in the contract. Any technical questions should be referred to Julie Nace at(63 1)444-0871. Any administrative questions concerning this contract should be referred to me at(518)402-8224. Thank you for your efforts in preventing and protecting New York State's waters from pollution. Sinc rely, � Lar &Alu�1 �0 Dauphinais Environmental Program Specialist 1 Division of Water Enclosures c: w/letter&contract: J.Nace,Regional Project Manager,NYSDEC,Region#1, c: w/letter only: S.June,NYSDEC,M/WBE Program Office,Albany ORIGINAL STATE AGENCY(Name&Address): BUSINESS UNIT/DEPT.ID: DEC01/3350000 New York State Department of Environmental CONTRACT NUMBER: C303426 Conservation 625 Broadway,4th Floor CONTRACT TYPE: Albany,NY 12233-3506 ❑Multi-Year Agreement ❑Simplified Renewal Agreement m Fixed Term Agreement CONTRACTOR SFS PAYEE NAME: TRANSACTION TYPE: TOWN OF SOUTHOLD , ❑New ❑Renewal ®Amendment CONTRACTOR DOS INCORPORATED NAME: PROJECT NAME: Stormwater Remediation Project in the Peconic Estuary Program CONTRACTOR IDENTIFICATION NUMBERS: AGENCY IDENTIFIER: NYS Vendor ID Number: 1000000876 WQ-LA Federal Tax ID Number: 11-6001939 DUNS Number(if applicable): CFDA NUMBER(Federally Funded Grants Only): CONTRACTOR PRIMARY MAILING ADDRESS: CONTRACTOR STATUS: P.O. Box 1179 53095 MAIN STREET ❑For Profit SOUTHOLD,NEW YORK 11971 [�Municipality, Code: ❑Tribal Nation CONTRACTOR PAYMENT ADDRESS: ❑ Individual ❑✓ Check if same as primary mailing address ❑Not-for-Profit Charities Registration Number: CONTRACT MAILING ADDRESS: Exemption Status/Code: ❑✓ Check if same as primary mailing address ❑Sectarian Entity Contract Number: # C303426 Page 1 of 2 CURRENT CONTRACT TERM: CONTRACT FUNDING AMOUNT (Multi-year -enter total projected amount of the From: 04/01/2007 To: 03/31/2014 contract;Fixed Term/Simplified Renewal - enter current period amount): CURRENT CONTRACT PERIOD: CURRENT: $ 193,844 From: 04/01/2007 To: 03/31/2014 AMENDED: AMENDED TERM: FUNDING SOURCE(S) From: 04/01/2007 To: 12/31/2014 m State AMENDED PERIOD: ❑Federal 0 Other From: 04/01/2007 To: 12/31/2014 FOR MULTI-YEAR AGREEMENTS ONLY -CONTRACT PERIOD AND FUNDING AMOUNT: (Out years represent projected funding amounts) # CURRENT PERIOD CURRENT AMOUNT AMENDED PERIOD AMENDED AMOUNT 1 2 3 4 5 ATTACHMENTS PART OF THIS AGREEMENT: ❑ Attachment A: ❑ A-1 Program Specific Terms and Conditions ❑ A-2 Federally Funded Grants ❑ Attachment B: B-1 Expenditure Based Budget B-2 Performance Based Budget B-3 Capital Budget B-1(A)Expenditure Based Budget(Amendment) B-2(A)Performance Based Budget(Amendment) B-3(A)Capital Budget(Amendment) ❑ Attachment C: Work Plan ❑ Attachment D: Payment and Reporting Schedule m Other: Amendment No.3-No Cost Time Extension Appendix A-dated January 2014 Appendix B-dated March 2013 Contract Number: #C303426 Page 2 of 2 a r Amendment No.3: No-Cost-Time Extension Contract Number: C303426 THIS AMENDMENT,entered into by and between the STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION(hereinafter referred to as the"Department ),having offices at 625 Broadway,Albany,New York 12233, and the Town of Southold(hereinafter referred to as the"Recipient"),with offices at 53095 Main Street, Southold, New York 11971 is hereby attached to and becomes incorporated into the above referenced contract. The parties entered into a prior Contract which was duly assigned Contract Number C303426 which said Contract the parties now desire to amend and/or extend.The Contract provides for amendment or extension in Article 3. The Contractor has requested an amendment to the Contract for the following reason:to allow more time for the Town of Southold to complete the project utilizing new engineering designs for the stormwater runoff issues in the Hashamomuck Pond watershed area. The Contract is amended as follows: 1. Article 3:Term and Effective Date is revised to extend the Contract termination date from March 31,2014 to December 31,2014 2. Appendix A—NYS Standard Clauses For NYS Contracts dated,June 2006 is hereby revised and replaced with Appendix A NYS Standard Clauses For NYS Contracts dated,January,2014. 3. Appendix B—Standard Clauses for All New York State Department of Environmental Conservation Contracts dated, April 17,2000 is hereby revised and replaced with Appendix B—Standard Clauses for All New York State Department of Environmental Conservation Contracts dated,March 2013. All other terms and conditions of said Contract shall remain in full force and effect. IN WITNESS THEREOF,the parties hereto have executed or approved this Master Contract on the dates below their signatures. CONTRACTOR: STATE AGENCY: TOWN OF SOUTHOLD NYS Department of Environmental Conservation By: Ad.,J4 By: CIO++^/4- /(4-5—r C- n1y; Lussier Printed Name riame Title: Title: director of Management and Budget Services Date: (p f/3 jl y Date: AUG 12 2014 STATE OF NEW YORK County of —:5 It O K On the /3 day of�u A C- , X , before me personally appeared-5' r cess e //,to me known, who being by me duly sworn, did depose and say that heAv resides at that he/ake is the _S L t v` p r of the fl am Sn u Id ,the ontractor described herein wl ich executed the foregoing instrument; and that he/sic signed his/]=name thereto as authorized by the contractor named on the face page of this. Contract. ��p�� LAUREN M.STANDISH (Notary) (: rak ,t') `�j. ii (0�l Notary Public,State of New York No.01 ST6164008 Qualified in Suffolk County Commission Expires April 9.2015 ATTORNEY GENERAL'S SIGNATURE STATE COMPTROLLER'S SIGNATURE PROVED Printed Name DEPT.OF A e am Title: tle: AUG 2 5 2014 Date: te: P LA�" --" ER FOR Contract Number:# C303426 Page 1 of 1,Master Contract for Grants Signature Page STAR=GLUM RN NYS eNNTNACTS ArlB■0 A STANDARD CLAUSES FOR NYS CONTRACTS 4. WORKERS' COMPENSATION BENEFITS. In accordance with Section 142 of the State Finance Law, this The parties to the attached contract,license, lease,amendment contract shall be void and of no force and effect unless the or other agreement of any kind (hereinafter, "the contract" or Contractor shall provide and maintain coverage during the life "this contract") agree to be bound by the following clauses of this contract for the benefit of such employees as are which are hereby made a part of the contract (the word required to be covered by the provisions of the Workers' "Contractor" herein refers to any party other than the State, Compensation Law. whether a contractor, licenser, licensee, lessor, lessee or any other party): 5. NON-DISCRIMINATION REOUIREMENTS. To the extent required by Article 15 of the Executive Law (also 1. EXECUTORY CLAUSE. In accordance with Section 41 known as the Human Rights Law) and all other State and of the State Finance Law, the State shall have no liability Federal statutory and constitutional non-discrimination under this contract to the Contractor or to anyone else beyond provisions, the Contractor will not discriminate against any funds appropriated and available for this contract. employee or applicant for employment because of race, creed, color, sex (including gender identity or expression), national 2. NON-ASSIGNMENT CLAUSE. In accordance with origin, sexual orientation, military status, age, disability, Section 138 of the State Finance Law,this contract may not be predisposing genetic characteristics,marital status or domestic assigned by the Contractor or its right,title or interest therein violence victim status. Furthermore, in accordance with assigned, transferred, conveyed, sublet or otherwise disposed Section 220-e of the Labor Law, if this is a contract for the of without the State's previous written consent, and attempts construction, alteration or repair of any public building or to do so are null and void. Notwithstanding the foregoing, public work or'for the manufacture, sale or distribution of such prior written consent of an assignment of a contract let materials, equipment or supplies, and to the extent that this pursuant to Article XI of the State Finance Law may be contract shall be performed within the State of New York, waived at the discretion of the contracting agency and with the Contractor agrees that neither it nor its subcontractors shall,by concurrence of the State Comptroller where the original reason of race, creed, color, disability, sex, or national origin: contract was subject to the State Comptroller's approval, (a) discriminate in hiring against any New York State citizen where the assignment is due to a reorganization, merger or who is qualified and available to perform the work; or (b) consolidation of the Contractor's business entity or enterprise. discriminate against or intimidate any employee hired for the The State retains its right to approve an assignment and to performance of work under this contract. If this is a building require that any Contractor demonstrate its responsibility to do service contract as defined in Section 230 of the Labor Law, business with the State. The Contractor may,however,assign then, in accordance with Section 239 thereof, Contractor its right to receive payments without the State's prior written agrees that neither it nor its subcontractors shall by reason of consent unless this contract concerns Certificates of race, creed, color, national origin, age, sex or disability: (a) Participation pursuant to Article 5-A of the State Finance Law. discriminate in hiring against any New York State citizen who is qualified and available to perform the work; or (b) 3. COMPTROLLER'S APPROVAL. In accordance with discriminate against or intimidate any employee hired for the Section 112 of the State Finance Law (or, if this contract is performance of work under this contract. Contractor is subject with the State University or City University of New York, to fines of $50.00 per person per day for any violation of Section 355 or Section 6218 of the Education Law), if this Section 220-e or Section 239 as well as possible termination contract exceeds $50,000 (or the minimum thresholds agreed of this contract and forfeiture of all moneys due hereunder for to by the Office of the State Comptroller for certain S.U.N.Y. a second or subsequent violation. and C.U.N.Y. contracts), or if this is an amendment for any amount to a contract which, as so amended, exceeds said 6. WAGE AND HOURS PROVISIONS. If this is a public statutory amount, or if, by this contract, the State agrees to work contract covered by Article 8 of the Labor Law or a give something other than money when the value or building service contract covered by Article 9 thereof, neither reasonably estimated value of such consideration exceeds Contractor's employees nor the employees of its $10,000, it shall not be valid, effective or binding upon the subcontractors may be required or permitted to work more State until it has been approved by the State Comptroller and than the number of hours or days stated in said statutes,except filed in his office. Comptroller's approval of contracts let by as otherwise provided in the Labor Law and as set forth in the Office of General Services is required when such contracts prevailing wage and supplement schedules issued by the State exceed $85,000 (State Finance Law Section 163.6-a). Labor Department. Furthermore, Contractor and its However, such pre-approval shall not be required for any subcontractors must pay at least the prevailing wage rate and contract established as a centralized contract through the pay or provide the prevailing supplements, including the Office of General Services or for a purchase order or other premium rates for overtime pay, as determined by the State transaction issued under such centralized contract. Labor Department in accordance with the Labor Law. Additionally, effective'April 28,2008, if this is a public work contract covered by Article 8 of the Labor Law,the Contractor Page 1 January 2014 $TMM KA=TSN NIPS @ NTLgM understands and agrees that the filing of payrolls in a manner which they were made and for six (6) additional years consistent with Subdivision 3-a of Section 220 of the Labor thereafter. The State Comptroller, the Attorney General and Law shall be a condition precedent to payment by the State of any other person or entity authorized to conduct an any State approved sums due and owing for work done upon examination,as well as the agency or agencies involved in this the project. contract, shall have access to the Records during normal business hours at an office of the Contractor within the State 7. NON-COLLUSIVE BIDDING CERTIFICATION. In of New York or,.if no such office is available, at a mutually accordance with Section 139-d of the State Finance Law, if agreeable and reasonable venue within the State, for the term this contract was awarded based upon the submission of bids, specified above for the purposes of inspection, auditing and Contractor affirms, under penalty of perjury, that its bid was copying. The State shall take reasonable steps to protect from arrived at independently and without collusion aimed at public disclosure any of the Records which are exempt from restricting competition. Contractor further affirms that, at the disclosure under Section 87 of the Public Officers Law (the time Contractor submitted its bid, an authorized and "Statute")provided that: (i)the Contractor shall timely inform responsible person executed and delivered to the State a non- an appropriate State official, in writing, that said records collusive bidding certification on Contractor's behalf. should not be disclosed; and (ii) said records shall be sufficiently identified; and (iii) designation of said records as 8. INTERNATIONAL BOYCOTT PROHIBITION. In exempt under the Statute is reasonable. Nothing contained accordance with Section 220-f of the Labor Law and Section herein shall diminish, or in any way adversely affect, the 139-h of the State Finance Law, if this contract exceeds State's right to discovery in any pending or future litigation. $5,000, the Contractor agrees, as a material condition of the contract, that neither the Contractor nor any substantially 11. IDENTIFYING INFORMATION AND PRIVACY owned or affiliated person, firm, partnership or corporation NOTIFICATION. (a) Identification Number(s). Every has participated, is participating, or shall participate in an invoice or New York State Claim for Payment submitted to a international boycott in violation of the federal Export New York State agency by a payee,for payment for the sale of Administration Act of 1979 (50 USC App. Sections 2401 et goods or services or for transactions (e.g., leases, easements, seq.) or regulations thereunder. If such Contractor, or any of licenses, etc.)related to real or personal property must include the aforesaid affiliates of Contractor, is convicted or is the payee's identification number. The number is any or all of otherwise found to have violated said laws or regulations upon the following: (i) the payee's Federal employer identification the final determination of the United States Commerce number,(ii)the payee's Federal social security number,and/or Department or any other appropriate agency of the United (iii)the payee's Vendor Identification Number assigned by the States subsequent to the contract's execution, such contract, Statewide Financial System. Failure to include such number amendment or modification thereto shall be rendered forfeit or numbers may delay payment. Where the payee does not and void. The Contractor shall so notify the State Comptroller have such number or numbers, the payee, on its invoice or within five(5)business days of such conviction,determination Claim for Payment, must give the reason or reasons why the or disposition of appeal(2NYCRR 105.4). payee does not have such number or numbers. 9. SET-OFF RIGHTS. The State shall have all of its (b) Privacy Notification. (1) The authority to request the common law, equitable and statutory rights of set-off. These above personal information from a seller of goods or services rights shall include, but not be limited to,the State's option to or a lessor of real or personal property, and the authority to withhold for the purposes of set-off any moneys due to the maintain such information, is found in Section 5 of the State Contractor under this contract up to any amounts due and Tax Law. Disclosure of this information by the seller-or lessor owing to the State with regard to this contract, any other to the State is mandatory. The principal purpose for which the contract with any State department or agency, including any information is collected is to enable the State to identify contract for a term commencing prior to the term of this individuals, businesses and others who have been delinquent contract,plus any amounts due and owing to the State for any in filing tax returns or may have understated their tax other reason including, without limitation, tax delinquencies, liabilities and to generally identify persons affected by the fee delinquencies or monetary penalties relative thereto. The taxes administered by the Commissioner of Taxation and State shall exercise its set-off rights in accordance with normal Finance. The information will be used for tax administration State practices including, in cases of set-off pursuant to an purposes and for any other purpose authorized by law.(2)The audit, the finalization of such audit by the State agency, its personal information is requested by the purchasing unit of the representatives,or the State Comptroller. agency contracting to purchase the goods or services or lease the real or personal property covered by this contract or lease. 10. RECORDS. The Contractor shall establish and maintain The information is maintained in the Statewide Financial complete and accurate books, records, documents, accounts System by the Vendor Management Unit within the Bureau of and other evidence directly pertinent to performance under State Expenditures,Office of the State Comptroller, 110 State this contract (hereinafter, collectively, "the Records"). The Street,Albany,New York 12236. Records must be kept for the balance of the calendar year in Page 2 January 2014 sr11NmIn eam mt m Ceara ■ 12. EQUAL EMPLOYMENT OPPORTUNITIES FOR improvements thereon(the "Work")except where the Work is MINORITIES AND WOMEN. In accordance with Section for the beneficial use of the Contractor. Section 312 does not 312 of the Executive Law and 5 NYCRR 143, if this contract apply to: (i)work,goods or services unrelated to this contract; is: (i) a written agreement or purchase order instrument, or (ii) employment outside New York State. The State shall providing for a total expenditure in excess of $25,000.00, consider compliance by a contractor or subcontractor with the whereby a contracting agency is committed to expend or does requirements of any federal law concerning equal employment expend funds in return for labor, .services, supplies, opportunity which effectuates the purpose of this section. The equipment, materials or any combination of the foregoing, to contracting agency shall determine whether the imposition of be performed for, or rendered or furnished to the contracting the requirements of the provisions hereof duplicate or conflict agency; or (ii) a written agreement in excess of$100,000.00 with any such federal law and if such duplication or conflict whereby a contracting agency is committed to expend or does exists, the contracting agency shall waive the applicability of expend funds for, the acquisition, construction, demolition, Section 312 to the extent of such duplication or conflict. replacement, major repair or renovation of real property and Contractor will comply with all duly promulgated and lawful improvements thereon; or (iii) a written agreement in excess rules and regulations of the Department of Economic of$100,000.00 whereby the owner of a State assisted housing Development's Division of Minority and Women's Business. project is committed to expend or does expend funds for the Development pertaining hereto. acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements 13. CONFLICTING TERMS. In the event of a conflict thereon for such project,then the following shall apply and by between the terms of the contract (including any and all signing this agreement the Contractor certifies and affirms that attachments thereto and amendments thereof)and the terms of it is Contractor's equal employment opportunity policy that: this Appendix A,the terms of this Appendix A shall control. (a) The Contractor will not discriminate against employees or 14.GOVERNING LAW. This contract shall be governed by applicants for employment because of race, creed, color, the laws of the State of New York except where the Federal national origin, sex, age, disability or marital status, shall supremacy clause requires otherwise. make and document its conscientious and active efforts to employ and utilize minority group members and women in its 15. LATE PAYMENT. Timeliness of payment and any work force on State contracts and will undertake or continue interest to be paid to Contractor for late payment shall be existing programs of affirmative action to ensure that minority governed by Article 11-A of the State Finance Law to the group members and women are afforded equal employment extent required by law. opportunities without discrimination. Affirmative action shall mean recruitment, employment, job assignment, promotion, 16. NO ARBITRATION. Disputes involving this contract, upgradings,demotion,transfer,layoff,or termination and rates including the breach or alleged breach thereof, may not be of pay or other forms of compensation; submitted to binding arbitration (except where statutorily authorized), but must, instead, be heard in a court of (b) at the request of the contracting agency, the Contractor competent jurisdiction of the State of New York. shall request each employment agency, labor union, or authorized representative of workers with which it has a 17. SERVICE OF PROCESS. In addition to the methods of collective bargaining or other agreement or understanding, to service allowed by the State Civil Practice Law & Rules furnish a written statement that such employment agency, ("CPLR"), Contractor hereby consents to service of process labor union or representative will not discriminate on the basis upon it by registered or certified mail,return receipt requested. of race, creed, color, national origin, sex, age, disability or Service hereunder shall be complete upon Contractor's actual marital status and that such union or representative will receipt of process or upon the State's receipt of the return affirmatively cooperate in the implementation of the thereof by the United States Postal Service as refused or Contractor's obligations herein;and undeliverable. Contractor must promptly notify the State, in writing, of each and every change of address to which service (c) the Contractor shall state, in all solicitations or of process can be made. Service by the State to the last known advertisements for employees, that, in the performance of the address shall be sufficient. Contractor will have thirty (30) State contract, all qualified applicants will be afforded equal calendar days after service hereunder is complete in which to employment opportunities without discrimination because of respond. race, creed, color, national origin, sex, age, disability or marital status. 18. PROHIBITION ON PURCHASE OF TROPICAL HARDWOODS. The Contractor certifies and warrants that Contractor will include the provisions of "a"; "b", and "c" all wood products to be used under this contract award will be above, in every subcontract over $25,000.00 for the in accordance with, but not limited to, the specifications and construction, demolition, replacement, major repair, provisions of Section 165 of the State Finance Law, (Use of renovation, planning or design of real property and Tropical Hardwoods) which prohibits purchase and use of Page 3 January 2014 ETANM CIAOEEa M M CIN1AAM SpA tropical hardwoods,unless specifically exempted,by the State https://ny.newnycontracts.com/FrontEndNendorSearchpu or any governmental agency or political subdivision or public blicasn benefit corporation. Qualification for an exemption under this law will be the responsibility of the contractor to establish to The Omnibus Procurement Act of 1992 requires that by meet with the approval of the State. signing this bid proposal or contract, as applicable, Contractors certify that whenever the total bid amount is In addition, when any portion of this contract involving the greater than$1 million: use of woods, whether supply or installation, is to be performed by any subcontractor, the prime Contractor will (a) The Contractor has made reasonable efforts to encourage indicate and certify in the submitted bid proposal that the the participation of New York State Business Enterprises as subcontractor has been informed and is in compliance with suppliers and subcontractors, including certified minority and specifications and provisions regarding use of tropical women-owned business enterprises, on this project, and has hardwoods as detailed in §.165 State Finance Law. Any such retained the documentation of these efforts to be provided use must meet with the approval of the State; otherwise, the upon request to the State; bid may not be considered responsive. Under bidder certifications, proof of qualification for exemption will be the (b) The Contractor 'has complied with the Federal Equal responsibility of the Contractor to meet with the approval of Opportunity Act of 1972(P.L.92-261),as amended; the State. (c) The Contractor agrees to make reasonable efforts to 19. MACBRIDE FAIR EMPLOYMENT PRINCIPLES. provide notification to New York State residents of In accordance with the MacBride Fair Employment Principles employment opportunities on this project through listing any (Chapter 807 of the Laws of 1992), the Contractor hereby such positions with the Job Service Division of the New York stipulates that the Contractor either (a) has no business State Department of Labor, or providing such notification in operations in Northern Ireland,or(b)shall take lawful steps in such manner as is consistent with existing collective good faith to conduct any business operations in Northern bargaining contracts or agreements. The Contractor agrees to Ireland in accordance with the MacBride Fair Employment document these efforts and to provide said documentation to Principles(as described in Section 165 of the New York State the State upon request;and Finance Law), and shall permit independent monitoring of compliance with such principles. (d) The Contractof acknowledges notice that the State may seek to obtain offset credits from foreign countries as a result 20. OMNIBUS PROCUREMENT ACT OF 1992. It is the of this contract and agrees to cooperate with the State in these policy of New York State to maximize opportunities for the efforts. participation of New York State business enterprises, including minority and women-owned business enterprises as 21. RECIPROCITY AND SANCTIONS PROVISIONS. bidders, subcontractors and suppliers on its procurement Bidders are hereby notified that if their principal place of contracts. business is located in a country, nation, province, state or political subdivision that penalizes New York State vendors, Information on the availability of New York State and if the goods or services they offer will be substantially subcontractors and suppliers is available from: produced or performed outside New York State,the Omnibus Procurement Act 1994 and 2000 amendments (Chapter 684 NYS Department of Economic Development and Chapter 383, respectively) require that they be denied Division for Small Business contracts which they would otherwise obtain. NOTE: As of Albany,New York 12245 May 15, 2002, the list of discriminatory jurisdictions subject Telephone: 518-292-5100 to this provision includes the states of South Carolina,Alaska, Fax: 518-292-5884' West Virginia, Wyoming, Louisiana and Hawaii. Contact email:opa(@esd.ny.gov NYS Department of Economic Development for a current list of jurisdictions subject to this provision. A directory of certified minority and women-owned business enterprises is available from: 22. COMPLIANCE WITH NEW YORK STATE INFORMATION ' SECURITY BREACH AND NYS Department of Economic Development NOTIFICATION ACT. Contractor shall comply with the Division of Minority and Women's Business Development provisions of the New York State Information Security Breach 633 Third Avenue and Notification Act (General Business Law Section 899-aa; New York,NY 10017 State Technology Law Section 208). 212-803-2414 email:mwbecertificationAesd.W.gov 23. COMPLIANCE WITH CONSULTANT DISCLOSURE LAW. If this is a contract for consulting Page 4 January 2014 RAMA N 91ANW RO NYS G1NffMVM �A services, defined for purposes of this requirement to include During the term of the Contract, should the state agency analysis, evaluation, research, training, data processing, receive information that a person(as defined in State Finance computer programming, engineering, environmental, health, Law §165-a) is in violation of the above-referenced and mental health services, accounting, auditing, paralegal, certifications, the state agency will review such information legal or similar services,then, in accordance with Section 163 and offer the person an opportunity to respond. If the person (4-g)of the State Finance Law(as amended by Chapter 10 of fails to demonstrate that it has ceased its engagement in the the Laws of 2006),the Contractor shall timely, accurately and investment activity which is in violation of the Act within 90 properly comply with the requirement to submit an annual days after the determination of such violation, then the state employment report for the contract to the agency that awarded agency shall take such action as may be appropriate and the contract, the Department of Civil Service and the State provided for by law, rule, or contract, including, but not Comptroller. limited to, imposing sanctions, seeking compliance, recovering damages,or declaring the Contractor in default. 24. PROCUREMENT LOBBYING. To the extent this agreement is a"procurement contract"as defined by The state agency reserves the right to reject any bid, request State Finance Law Sections 139-j and 139-k, by signing this for assignment,renewal or extension for an entity that appears agreement the contractor certifies and affirms that all on the Prohibited Entities List prior to the award, assignment, disclosures made in accordance with State Finance Law renewal or extension of a contract, and to pursue a Sections 139-j and 139-k are complete, true and accurate. In responsibility review with respect to any entity that is awarded the event such certification is found to be intentionally false or a contract and appears on the Prohibited Entities list after intentionally incomplete, the State may terminate the. contract award. agreement by providing written notification to the Contractor in accordance with the terms of the agreement. 25. CERTIFICATION OF REGISTRATION TO COLLECT SALES AND COMPENSATING USE TAX BY CERTAIN STATE CONTRACTORS AFFILIATES 'AND SUBCONTRACTORS. To the extent this agreement is a contract as defined by Tax Law Section 5-a, if the contractor fails to make the certification required by Tax Law Section 5-a or if during the term of the contract, the Department 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 file or false certification shall be a material breach of this contract and this contract may be terminated,by providing written notification to the Contractor in accordance with the terms of the agreement, if the covered agency determines that such action is in the best interest of the State. 26. IRAN DIVESTMENT ACT. By entering into this Agreement,Contractor certifies in accordance with State Finance Law§165-a that it is not on the"Entities Determined to be Non-Responsive Bidders/Offerers pursuant to the New York State Iran Divestment Act of 2012"("Prohibited Entities List")posted at: h9p://www.ogs.nv.izov/about/regs/docsAListofEntities.pdf Contractor further certifies that it will not utilize on this Contract any subcontractor that is identified on the Prohibited Entities List. Contractor agrees that should it seek to renew or extend this Contract, it must provide the same certification at the time the Contract is renewed or extended. Contractor also agrees that any proposed Assignee of this Contract will be required to certify that it is not on the Prohibited Entities List before the contract assignment will be approved by the State. Page 5 January 2014 APPENDIX B Standard Clauses for All New York State Department of Environmental Conservation Contracts The parties to the attached contract,license,lease,grant,amendment or other agreement of any kind(hereinafter "the contract"or"this contract")agree to be bound by the following clauses which are hereby made a part of the contract. The word "Contractor" herein refers to any party to the contract, other than the New York State Department of Environmental Conservation(hereinafter"Department"). I. Postponement, suspension, abandonment or without some restriction on future activities, impair or termination by the Department: appear to impair the Contractor's objectivity in performing The Department shall have the right to postpone, suspend, the work for the Department. abandon or terminate this contract,and such actions shall in no event be deemed a breach of contract. In the event of (2) The Contractor agrees that if an actual, or potential any termination, postponement, delay, suspension or organizational conflict of interest is discovered at any time abandonment, the Contractor shall immediately stop work, after award, whether before or during performance, the take steps to incur no additional obligations, and to limit Contractor will immediately make a full disclosure in further expenditures.Within 15 days of receipt of notice,the writing to the Department. This disclosure shall include a Contractor shall deliver to the Department all data,reports, description of actions which the Contractor has taken or plans,or other documentation related to the performance of proposes to take,after consultation with the Department,to this contract, including but not limited to source codes and avoid,mitigate,or minimize the actual or potential conflict. specifications, guarantees, warranties, as-built plans and shop drawings. In any of these events,the Department shall (3) To the extent that the work under this contract requires make settlement with the Contractor upon an equitable basis access to personal, proprietary or confidential business or as determined by,the Department which shall fix the value of financial data of persons or other companies,and as long as the work which was performed by the Contractor prior to the such data remains proprietary or confidential,the Contractor Postponement, suspension, abandonment or termination of shall protect such data from unauthorized use and disclosure this contract. This clause shall not apply to this contract if and agrees not to use it to compete with such companies. the contract contains other provisions applicable to postponement,suspension or termination of the contract. (b)Personal Conflict of Interest:The following provisions with regard to management or professional level employee II. Indemnification and Hold harmless The personnel performing under this contract shall apply until Contractor agrees that it will indemnify and save harmless the earlier of the termination date of the affected the Department and the State of New York from and against employee(s)or the duration of the contract. all losses from claims, demands, payments, suits, actions, recoveries and judgments of every nature and description (1)A personal conflict of interest is defined as a relationship brought or recovered against it by reason of any omission or of an employee,subcontractor employee,or consultant with tortious act of the Contractor, its agents, employees, an entity that may impair or appear to impair the objectivity suppliers or subcontractors in the performance of this of the employee, subcontractor employee, or consultant in contract. The Department and the State of New York may performing the contract work. The Contractor agrees to retain such monies from the amount due Contractor as may , notify the Department immediately of any actual or potential be necessary to satisfy any claim for damages,costs and the personal conflict of interest with regard to any such person like, which is asserted against the Department and/or the working on or having access to information regarding this State of New York. contract, as soon as Contractor becomes aware of such conflict. The Department will notify the Contractor of the III. Conflict of Interest appropriate action to be taken. (a) Organizational Conflict of Interest. To the best of the Contractor's knowledge and belief,the Contractor warrants (2) The Contractor agrees to advise all management or that there are no relevant facts or circumstances which could professional level employees involved in the work of this give rise to an organizational conflict of interest, as herein contract, that they must report any personal conflicts of defined,or that the Contractor has disclosed all such relevant interest to the Contractor. The Contractor must then advise information to the Department. the Department which will advise the Contractor of the (1) An organizational conflict of interest exists when the appropriate action to be taken. nature of the work to be performed under this contract may, I March 2013 (3) Unless waived by the Department, the Contractor developed the statement of work or the solicitation shall certify annually that,to the best of the Contractor's package knowledge and belief, all actual, apparent or potential conflicts of interest,both personal and organizational,as (e)The Contractor agrees to insert in each subcontract or defined herein, have been reported to the Department. consultant agreement placed hereunder (except for Such certification must be signed by a senior executive subcontracts or consultant agreements for well drilling, of the Contractor and submitted in accordance with fence erecting,plumbing,utility hookups,security guard instructions provided by the Department. Along with services, or electrical services) provisions which shall the annual certification,the Contractor shall also submit conform substantially to the language of this clause, an update of any changes in any conflict of interest plan including this paragraph(e),unless otherwise authorized submitted with its proposal for this contract. The initial by the Department. certification shall cover the one-year period from the date of contract award,and all subsequent certifications If this is a contract for work related to action at an shall cover successive annual periods thereafter. The inactive hazardous waste site, the following certification is to be submitted no later than 45 days after paragraph shall apply to those Contractors whose the close of the previous certification period covered. work requires the application of professional judgment: It does not apply to construction (4) In performing this contract, the Contractor contracts. recognizes that its employees may have access to data, either provided by the Department or first generated (f) Due to the scope and nature of this contract, the during contract performance,of a sensitive nature which Contractor shall observe the following restrictions on should not be released without Department approval. If future hazardous waste site contracting for the duration this situation occurs, the Contractor agrees to obtain of the contract. confidentiality agreements from all affected employees working on requirements under this contract including (1) The Contractor, during the life of the work subcontractors and consultants. Such agreements shall assignment and for a period of three(3) years after the contain provisions which stipulate that each employee completion of the work assignment,agrees not to enter agrees not to disclose,either in whole or in part,to any into a contract with or to represent any party with respect entity external to the Department,Department of Health to any work relating to remedial activities or work or the New York State Department of Law, any pertaining to a site where the Contractor previously information or data provided by the Department or first performed work for the Department under this contract generated by the Contractor under this contract, any without the prior written approval of the Department. site-specific cost information, or any enforcement strategy without first obtaining the written permission of (2) The Contractor agrees in advance that if any the Department. If a Contractor,through an employee bids/proposals are submitted for any work for a third or otherwise, is subpoenaed to testify or produce party that would require written approval of the documents, which could result in such disclosure, the Department prior to entering into a contract because of Contractor must provide immediate advance notification the restrictions of this clause,then the bids/proposals are to the Department so that the Department can authorize submitted at the Contractor's own risk, and no claim such disclosure or have the opportunity to take action to shall be made against the Department to recover prevent such disclosure. Such agreements shall be bid/proposal costs as a direct cost whether the request effective for the life of the contract and for a period of for authorization to enter into the contract is denied or five(5)years after completion of the contract. approved. (c) Remedies - The Department may terminate this IV. Requests for Payment All requests for contract in whole or in part,if it deems such termination payment by the Contractor must be submitted on forms necessary to avoid an organizational or personal conflict supplied and approved by the Department. Each of interest,or an unauthorized disclosure of information. payment request must contain such items of information If the Contractor fails to make required disclosures or and supporting documentation as are required by the misrepresents relevant information to the Department, Department,and shall be all-inclusive for the period of the Department may terminate the contract, or pursue time covered by the payment request. such other remedies as may be permitted by the terms of Clause I of this Appendix or'other applicable provisions of this contract regarding termination. (d)The Contractor will be ineligible to make a proposal or bid on a contract for which the Contractor has 2 March 2013 V. Compliance with Federal requirements To (2)The decision of the designated individual shall be the the extent that federal funds are provided to the Contractor final DEC determination,unless the Contractor files a or used in paying the Contractor under this contract, the written appeal of that decision with the designated appeal Contractor agrees that it will comply with all applicable individual("DAI")within twenty days of receipt of that federal laws and regulations, including but not limited to decision. those laws and regulations under which the Federal funds were authorized. The Contractor further agrees to insert in (b)Upon receipt of the written appeal,the DAI,will review any subcontract hereunder,provisions which shall conform the record and decision.Following divisional procedures in substantially to the language of this clause. effect at that time,the DAI will take one of the following VI. Independent Contractor The Contractor shall actions,with written notice to the Contractor. have the status of an independent contractor. Accordingly, (1)Remand the matter to the program staff for further the Contractor agrees that it will conduct itself in a manner negotiation or information if it is determined that the matter consistent with such status,and that it will neither hold itself is not ripe for review;or out as, nor claim to be, an officer or employee of the (2)Determine that there is no need for further action,and Department by reason of this contract. It further agrees that the determination of the designated individual is that it will not make any claim,demand or application to the confirmed;or Department for any right or privilege applicable to an (3)Make a determination on the record as it exists. officer or employee of the Department, including but not limited to worker's compensation coverage,unemployment (c) The decision of the DAI shall be the final DEC insurance benefits, social security coverage, or retirement decision unless the Contractor files a written appeal of that membership or credit. decision with the Chair of the Contract Review Committee VII. Compliance with applicable laws ("CRC")within twenty days of receipt of that decision. The designated individual to hear disputes is: (a) Prior to the commencement of any work under this contract,the Contractor is required to meet all legal Joseph DiMura, Director, BWC requirements necessary in the performance of the contract. (Name and Title) This includes but is not limited to compliance with all applicable federal,state and local laws and regulations NYS DEC, 625 Broadway, 4th Floor promulgated thereunder.It is the Contractor's responsibility Albany NY 12233-3506 to obtain any necessary permits,or other authorizations. (Address) By signing this contract,the Contractor affirmatively represents that it has complied with said laws,unless it (518)402-8177 advises the Department otherwise,in writing. The (Telephone) Department signs this contract in reliance upon this representation. T (b) During the term of this contract,and any extensions he designated appeal individual to review decisions is: thereof,the Contractor must remain in compliance with said Alan Fuchs, Director, BFP&DS laws. A failure to notify the Department of noncompliance (Name and Title) of which the Contractor was or should have been aware, NYS DEC, 625 Broadway, 4th Floor may be considered a material breach of this contract. Albany NY 12233-3504 VIII. Dispute Resolution The parties agree to the (Address) following steps,or as many as are necessary to resolve (518)402-8185 disputes between the Department and the Contractor. (Telephone) (a) The Contractor specifically agrees to submit,in the The Chair of the Contract Review Committee is: first instance,any dispute relating to this contract to the designated individual,who shall render a written decision Department of Environmental Conservation and furnish a copy thereof to the Contractor. Nancy W.Lussier Chair Contract Review Committee (1) The Contractor must request such decision in writing 625 Broadway, IO'h Floor no more than fifteen days after it knew or should have Albany,NY 12233-5010 known of the facts which are the basis of the dispute. Telephone:(518)402-9228 3 March 2013 (k)The CRC will promptly convene a review in accordance (d)Upon receipt of the written appeal,the Chair of the with Article 15-A of the Executive Law and the regulations CRC,in consultation with the members of the CRC and the promulgated thereunder. Office of General Counsel,will take one of the following actions,or a combination thereof,with written notice to the IX. Labor Law Provisions Contractor. (a)When applicable,the Contractor shall post,in a location (1)Remand the matter to program staff for additional fact designated by the Department,a copy of the New York finding,negotiation,or other appropriate action;or State Department of Labor schedules of prevailing wages and supplements for this project,a copy of all (2)Adopt the decision of the DAI;or re-determinations of such schedules for the project,the Workers'Compensation Law Section 51 notice,all other (3)Consider the matter for review by the CRC in notices required by law to be posted at the site,the accordance with its procedures. Department of Labor notice that this project is a public work project on which each worker is entitled to receive the (e)Following a decision to proceed pursuant to(d)3,above, prevailing wages and supplements for their occupation,and the Chair of the CRC shall convene a proceeding in all other notices which the Department directs the accordance with the CRC's established contract dispute Contractor to post. The Contractor shall provide a surface resolution guidelines. The proceeding will provide the for such notices which is satisfactory to the Department. Contractor with an opportunity to be heard. The Contractor shall maintain such notices in a legible manner and shall replace any notice or schedule which is (f)Following a decision pursuant to(d)2 or(d)3,the CRC damaged,defaced,illegible or removed for any reason. shall make a written recommendation to the Assistant Contractor shall post such notices before commencing any Commissioner for Administration who shall render the final work on the site and shall maintain such notices until all DEC determination. work on the site is complete. (g)At any time during the dispute resolution process,and (b)When appropriate,contractor shall distribute to each upon mutual agreement of the parties,the Office of worker for this Contract a notice,in a form provided by the Hearings and Mediation Services(OHMS)may be Department,that this project is a public work project on requested to provide mediation services or other appropriate which each worker is entitled to receive the prevailing wage means to assist in resolving the dispute. Any findings or and supplements for the occupation at which he or she is recommendations made by the OHMS will not be binding working. Worker includes employees of Contractor and on either party. all Subcontractors and all employees of suppliers entering the site. Such notice shall be distributed to each worker (h)Final DEC determinations shall be subject to review before they start performing any work of this contract. At only pursuant to Article 78 of the Civil Practice Law and the time of distribution,Contractor shall have each worker Rules. . sign a statement,in a form provided by the Department, certifying that the worker has received the notice required (i)Pending final determination of a dispute hereunder,the by this section,which signed statement shall be maintained Contractor shall proceed diligently with the performance of with the payroll records required by the following the Contract in accordance with the decision of the paragraph(c). designated individual. Nothing in this Contract shall be construed as making final the decision of any administrative (c)Contractor shall maintain on the site the original officer upon a question of law. certified payrolls or certified transcripts thereof which Contractor and all of its Subcontractors are required to 0)Notwithstanding the foregoing,at the option of the maintain pursuant to the New York Labor Law Section 220. Contractor,the following shall be subject to review by the Contractor shall maintain with the payrolls or transcripts CRC: Disputes arising under Article 15-A of the thereof,the statements signed by each worker pursuant to Executive Law(Minority and Women Owned Business paragraph(b). participation),'the Department's determination with respect to the adequacy of the Contractor's Utilization Plan,or the (d)Within thirty days of issuance of the first payroll,and Contractor's showing of good faith efforts to comply every thirty days thereafter,the Contractor and every therewith. A request for a review before the CRC should subcontractor must submit a transcript of the original be made,in writing,within twenty days of receipt of the payroll to the Department,which transcript must be Department's determination. subscribed and affirmed as true under penalty of perjury. 4 March 2013 X. Offset In accordance with State Law,the Department has the authority to administratively offset any monies due (1)prompt written notice of any action,claim or threat of it from the Contractor,from payments due to the Contractor infringement suit,or other suit,and under this contract.The Department may also(a)assess interest or late payment charges,and collection fees,if (2)the opportunity to take over,settle or defend such action applicable;(b)charge a fee for any dishonored check;(c) at the Contractor's sole expense,and refuse to renew certain licenses and permits. (3)all available information,assistance and authority XI. Tax Exemption Pursuant to Tax Law Section 1116, necessary to the action,at the Contractor's sole expense. the State is exempt from sales and use taxes. A standard state voucher is sufficient evidence thereof.For federal (4)The Contractor shall control the defense of any such excise taxes,New York's registration Number 14740026K suit,including appeals,and all negotiations to effect covers tax-free transactions under the Internal Revenue settlement,but shall keep the Department fully informed Code. concerning the progress of the litigation. XII. Litigation Support In the event that the Department (b)If the use of any item(s)or parts thereof is held to becomes involved in litigation related to the subject matter infringe a patent or copyright and its use is enjoined,or of this contract,the Contractor agrees to provide Contractor believes it will be enjoined,the Contractor shall background support and other litigation support,including have the right,at its election and expense to take action in but not limited to depositions,appearances,and testimony. the following order of precedence: Compensation will be negotiated and based on rates established in the contract,or as may otherwise be provided (1)procure for the Department the right to continue using in the contract. the same item or parts thereof, XHI Equipment Any equipment purchased with funds (2)modify the same so that it becomes non-infringing and provided under this contract,shall remain the property of of at least the same quality and performance; the Department,unless otherwise provided in the contract. The Contractor shall be liable for all costs for maintaining (3)replace the item(s)or parts thereof with noninfringing the property in good,usable condition. It shall be returned items of at least the same quality and performance; to the Department upon completion of the contract,in such condition,unless the Department elects to sell the (4)if none of the above remedies are available,discontinue equipment to the Contractor,upon mutually agreeable its use and eliminate any future charges or royalties terms. pertaining thereto. The Contractor will buy back the infringing product(s)at the State's book value,or in the XIV. Inventions or Discoveries Any invention or event of a lease,the parties shall terminate the lease. If discovery first made in performance of this Contract shall discontinuation or elimination results in the Contractor not be the property of the Department,unless otherwise being able to perform the Contract,the Contract shall be provided in the contract.The Contractor agrees to provide terminated. the Department with any and all materials related to this property.At the Department's option,the Contractor may (c)In the event that an action at law or in equity is be granted a non-exclusive license. commenced against the Department arising out of a claim that the Department's use of any item or material pursuant to XV. Patent and Copyright Protection or resulting from this Contract infringes any patent, If any patented or copyrighted material is involved in or copyright or proprietary right,and such action is forwarded results from the performance of this Contract,this Article by the Department to the Contractor for defense and shall apply. indemnification pursuant to this Article,the Department shall copy all pleadings and documents forwarded to the (a)The Contractor shall,at its expense,defend any suit Contractor together with the forwarding correspondence instituted against the Department and indemnify the and a copy of this Contract to the Office of the Attorney Department against any award of damages and costs made General of the State of New York. If upon receipt of such against the Department by a final judgment of a court of last request for defense,or at any time thereafter,the Contractor resort based on the claim that any of the products,services is of the opinion that the allegations in such action,in whole or consumable supplies furnished by the Contractor under or in part,are not covered by the indemnification set forth in this Contract infringes any patent,copyright or other this Article,the Contractor shall immediately notify the proprietary right;provided the Department gives the Department and the Office of the Attorney General of the Contractor: State of New York in writing and shall specify to what S March 2013 extent the Contractor believes it is and is not obligated to and to support its position. defend and indemnify under the terms and conditions of this Contract. The Contractor shall in such event protect the XVIII. Precedence In the event of a conflict between the interests of the Department and State of New York and terms of this Appendix B and the terms of the Contract secure a continuance to permit the State of New York to (including any and all attachments thereto and amendments appear and defend its interests in cooperation with thereof,but not including Appendix A),the terms of this Contractor as is appropriate,including any jurisdictional Appendix B shall control. In the event of a conflict defenses which the Department and State shall have. between the terms of this Appendix B,and the terms of Appendix A,the terms of Appendix A shall control. (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 XIX. Article 15-Requirements Department as to the items;(2)alterations of the items by the Department;(3)failure of the Department to use PARTICIPATION BY MINORITY GROUP updated items provided by the Contractor for avoiding MEMBERS AND WOMEN WITH RESPECT TO infringement;(4)use of items in combination with STATE CONTRACTS:REOUIREMENTS AND apparatus or devices not delivered by the Contractor;(5)use PROCEDURES of items in a manner for which the same were neither designed nor contemplated;or(6)a patent or copyright in (a)General Provisions which the Department or any affiliate or subsidiary of the Department has any direct or indirect interest by license or (1)The Department is required to implement the provisions otherwise. of New York State Executive Law Article 15-A and 5 NYCRR Parts 142-144("MWBE Regulations")for all (e)The foregoing states the Contractor's entire liability for, State contracts as defined therein,with a value(1)in excess or resulting from,patent or copyright infringement or claim of$25,000 for labor,services,equipment,materials,or any thereof combination of the foregoing or(2)in excess of$100,000 for real property renovations and construction. XVI. Force Majeure The term Force Majeure shall include acts of God,work stoppages due to labor disputes or (2)The Contractor to the subject contract(the"Contractor" strikes,fires,explosions,epidemics,riots,war rebellion, and the"Contract,"respectively)agrees,in addition to any sabotage or the like. If a failure of or delay in performance other nondiscrimination provision of the Contract and at.no by either party results from the occurrence of a Force additional cost to the New York State Department (the Majeure event,the delay shall be excused and the time for "Department",to fully comply and cooperate with the performance extended by a period equivalent to the time Department in the implementation of New York State lost because of the Force majeure event,if and to the extent Executive Law Article 15-A. These requirements include that: equal employment opportunities for minority group members and women("EEO")and contracting (a)The delay or failure was beyond the control of the party opportunities for certified minority and women-owned affected and not due to its fault or negligence;and business enterprises("MWBEs"). Contractor's demonstration of"good faith efforts"pursuant to 5 NYCRR (b)The delay or failure was not extended because of the §142.8 shall be a part of these requirements.These affected party's failure to use all reasonable diligence to provisions shall be deemed supplementary to,and not in overcome the obstacle or to resume performance lieu of,the nondiscrimination provisions required by New immediately after such obstacle was overcome;and York State Executive Law Article 15(the"Human Rights Law")or other applicable federal,state or local laws. (c)The affected party provides notice within(5)days of the onset of the event,that it is invoking the protection of this (3)Failure to comply with all of the requirements herein provision. may result in a finding of non-responsiveness, non-responsibility and/or a breach of contract,leading to XVII. Freedom of Information Requests The the withholding of funds or such other actions,liquidated Contractor agrees to provide the Department with any damages pursuant to Section VII of this Article or records which must be released in order to comply with a enforcement proceedings as allowed by the Contract. request pursuant to the Freedom of Information Law. The Department will provide the contractor with an opportunity to identify material which may be protected from release 6 March 2013 (b)Contract Goals areas of recruitment,employment,job assignment, (1)For purposes of this procurement,the Department hereby promotion,upgrading,demotion,transfer,layoff, establishes an overall goal of 20%for Minority and or termination and rates of pay or other forms of Women-Owned Business Enterprises("MWBE") compensation. participation,215%for Minority-Owned Business Enterprises("MBE")participation and 137%for (ii)The Contractor shall submit an EEO policy Women-Owned Business Enterprises("WBE") statement to the Department within seventy two participation(based on the current availability of qualified (72)hours after the date of the notice by MBEs and WBEs). Department to award the Contract to the (2)For purposes of providing meaningful participation by Contractor. MWBEs on the Contract and achieving the Contract Goals (iii)If Contractor or Subcontractor does not have established in Section II-A hereof,Contractor should an existing EEO policy statement,the Department reference the directory of New York State Certified may provide the Contractor or Subcontractor a MWBEs found at the following internet address; model statement. This statement can be found at the link provided in Section 8. http:i,'www.esd.ny.gov,5nwbe.htm 1 (iv)The Contractor's EEO policy statement shall Additionally,the Contractor is encouraged to contact the include the following language: Division of Minority and Woman Business Development ((518)292-5250;(212)803-2414;or(716)846-8200)to a. The Contractor will not discriminate discuss additional methods of maximizing participation by against any employee or applicant for MWBEs on the Contract. employment because of race,creed, color,national origin,sex,age,disability (3)Where MWBE goals have been established herein, or marital status,will undertake or pursuant to 5 NYCRR§142.8,Contractor must document continue existing EEO programs to "good faith efforts"to provide meaningful participation by ensure that minority group members and MWBEs as subcontractors or suppliers in the performance women are afforded equal employment of the Contract: In accordance with Section 316-a of opportunities without discrimination,and Article 15-A and 5 NYCRR§142.13,the Contractor shall make and document its acknowledges that if Contractor is found to have willfully conscientious and active efforts to and intentionally failed to comply with the MWBE employ and utilize minority group participation goals set forth in the Contract,such a finding members and women in its work force. constitutes a breach of contract and the Contractor shall be liable to the Department for liquidated or other appropriate b. The Contractor shall state in all damages,as set forth herein. solicitations or advertisements for employees that,in the performance of the c Employment contract,all qualified applicants will be ( )Equal p yment Opportunity(EEO) afforded equal employment opportunities (1)Contractor agrees to be bound by the provisions of without discrimination because of race, Article 15-A and the MWBE Regulations promulgated by creed,color,national origin,sex,age, the Division of Minority and Women's Business disability or marital status. Development of the Department of Economic Development (the"Division"). If any of these terms or provisions c. The Contractor shall request each conflict with applicable law or regulations,such laws and employer Department,labor union,or regulations shall supersede these requirements.Contractor authorized representative of workers with shall comply with the following provisions of Article 15-A: which it has a collective bargaining or other agreement or understanding,to (i)Contractor and Subcontractors shall undertake furnish a written statement that such or continue existing EEO programs to ensure that employer Department,labor union,or minority group members and women are afforded representative will not discriminate on equal employment opportunities without the basis of race,creed,color,national discrimination because of race,creed,color, origin,sex age,disability or marital status national origin,sex,age,disability or marital and that such union or representative will status. For these purposes,EEO shall apply in the affirmatively cooperate in the 7 March 2013 implementation of the Contractor's (iii)In limited instances,Contractor may not obligations herein. be able to separate out the workforce utilized in the performance of the d. The Contractor will include the Contract from Contractor's and/or provisions of Subdivisions(a)through(c) subcontractor's total workforce.When a of this Subsection 4 and Paragraph"E"of separation can be made,Contractor shall this Section III,which provides for submit the Workforce Report and relevant provisions of the Human Rights indicate that the information provided Law,in every subcontract in such a related to the actual workforce utilized on manner that the requirements of the the Contract.When the workforce to be subdivisions will be binding upon each utilized on the contract cannot be subcontractor as to work in connection separated out from Contractor's and/or with the Contract. subcontractor's total workforce, Contractor shall submit the Workforce e. EEO Contract Goals for the purposes of Report and indicate that the information this procurement,the Department hereby provided is Contractor's total workforce establishes a goal of 10%Minority during the subject time frame,not limited Labor Force Participation,10%Female to work specifically under the Contract. Labor Force Participation. (2) Contractor shall comply with the provisions of the (2)Staffing Plan Form Human Rights Law,all other State and Federal statutory and constitutional non-discrimination To ensure compliance with this Section,the provisions. Contractor and subcontractors shall Contractor shall submit a staffing plan to not discriminate against any employee or applicant document the composition of the proposed for employment because of race,creed(religion), workforce to be utilized in the performance of the color,sex,national origin,sexual orientation, Contract by the specified categories listed, military status,age,disability,predisposing including ethnic background,gender,and Federal genetic characteristic,marital status or domestic occupational categories.Contractors shall violence victim status,and shall also follow the complete the Staffing plan form and submit it as requirements of the Human Rights Law with part of their bid or proposal or within a reasonable regard to non-discrimination on the basis of prior time,but no later than the time of award of the criminal conviction and prior arrest. contract. (d)MWBE Utilization Plan (3)Workforce Employment Utilization Report Form ("Workforce Report") (1)The Contractor represents and warrants that Contractor has submitted an MWBE Utilization Plan either prior to,or (i) Once a contract has been awarded and at the time of,the execution of the contract. during the term of Contract,Contractor is responsible for updating and providing (2)Contractor agrees to use such MWBE Utilization Plan notice to the Department of any changes for the performance of MWBEs on the Contract pursuant to to the previously submitted Staffing Plan. the prescribed MWBE goals set forth in Section III-A of This information is to be submitted on a this Appendix. quarterly basis during the term of the Contract to report the actual workforce (3)Contractor further agrees that a failure to submit and/or utilized in the performance of the use such MWBE Utilization Plan shall constitute a material Contract by the specified categories listed breach of the terms of the Contract.Upon the occurrence of including ethnic background,gender,and such a material breach,Department shall be entitled to any Federal occupational categories.The remedy provided herein,including but not limited to,a Workforce Report must be submitted to finding of Contractor non-responsiveness. report this information. (e)Waivers (ii) Separate forms shall be completed by Contractor and any subcontractor (1)For Waiver Requests Contractor should use Waiver performing work on the Contract. Request Form. 8 March 2013 (2)If the Contractor,after making good faith efforts,is Director of the Division of Minority and Woman Business unable to comply with MWBE goals,the Contractor may Development pursuant to Subdivision 8 of Section 313 of submit a Request for Waiver form documenting good faith the Executive Law in which event the liquidated damages efforts by the Contractor to meet such goals. If the shall be payable if Director renders a decision in favor of the documentation included with the waiver request is Department. complete,the Department shall evaluate the request and issue a written notice of acceptance or denial within twenty (h)Forms (20)days of receipt. The following forms referenced in Article XVIII 3-A-3,3B, (4)If the Department,upon review of the MWBE 3C and 5A can be found at Utilization Plan and updated Quarterly MWBE Contractor http://www.dec.ny.gov/about/48854.html Compliance Reports determines that Contractor is failing or refusing to comply with the Contract goals and no waiver has been issued in regards to such non-compliance,the Department may issue a notice of deficiency to the Contractor. The Contractor must respond to the notice of deficiency within seven(7)business days of receipt. Such response may include a request for partial or total waiver of MWBE Contract Goals. (f)Quarterly MWBE Contractor Compliance Report Contractor is required to submit a Quarterly MWBE Contractor Compliance Report Form to the Department by the 10th day following each end of quarter over the term of the Contract documenting the progress made towards achievement of the MWBE goals of the Contract. (g)Liquidated Damages-MWBE Participation (1)Where Department determines that Contractor is not in compliance with the requirements of the Contract and Contractor refuses to comply with such requirements,or if Contractor is found to have willfully and intentionally failed to comply with the MWBE participation goals, Contractor shall be obligated to pay to the Department liquidated damages. (2)Such liquidated damages shall be calculated as an amount equaling the difference between: (i) All sums identified for payment to MWBEs had the Contractor achieved the contractual MWBE goals;and (ii) All sums actually paid to MWBEs for work performed or materials supplied under the Contract. (3)In the event a determination has been made which requires the payment of liquidated damages and such identified sums have not been withheld by the Department, Contractor shall pay such liquidated damages to the Department within sixty(60)days after they are assessed by the Department unless prior to the expiration of such sixtieth day,the Contractor has filed a complaint with the 9 March 2013 Non Point Source Documentation Requirements (10/4/06) A signed and dated State Aid/Standard Voucher, an Expenditure Reporting Form and a signed and dated Self- Certification Form are required with all reimbursement requests.In addition,the following documentation is required on the first reimbursement or when the total life-to-date expenditures claimed on the reimbursement request reaches or exceeds 25%and then again at the 50%, 75%and 100%of the total eligible contract amount, as specified in Attachment D-Payment and Reporting Schedule.You may submit the documentation with each Quarterly Report and Reimbursement Request OR you can wait until you reach the 25%, 50%, 75%and 100% levels and submit all relevant documentation at that time. With the latter method, if you wait until 25%of contract has been expended,you must submit documentation for all costs leading up to the 25%. At 50%,you must submit documentation for all costs associated with expenditures from 25%to 50%of the contract amount, and so forth. NOTE: If project costs include both eligible and ineligible costs,a breakdown of those costs,a description of their relation to the project as well as an explanation of the cost share determination must be included. All documentation associated with this project must be maintained for a period of six years beyond the end of this contract term or three years beyond the close out of any federal grant under which these costs are claimed by NYSDEC,whichever is greater. 1. Personal Services(e.g. municipal employees,time records) i. Submit daily time and activity records for each individual employee,signed by the appropriate supervisor OR a signed and certified summary of all personal service costs claimed(see attached sample).The records must include the employee's name and/or title,hourly rate,relation of tasks performed to the contract, including the dates and numbers of hours worked each day and total costs claimed for each individual (hourly rate times the number of hours worked). ii In most cases,time spent on the project by elected officials is not eligible for reimbursement. However,when prior approval is received by the project manager,time spent by an elected official in lieu of hiring additional staff may be reimbursable. Even when approved by the project manager,the cost will only be reimbursed at the local prevailing wage rate of the routine title used to perform the task,not at their official salary. 2. Non-Personal Services(travel, equipment,supplies&materials, contracts, land acquisition and other) i. Travel Signed and dated receipts for all travel expenditures OR a signed and certified summary of all travel costs claimed(see attached sample)must be included. Travel receipts must include the traveler's name and/or title;the date,origin and destination of travel,the relation of the trip to the project,the method of travel and the method of calculating mileage(i.e.,rate per mile),if it is claimed. ii. Equipment Signed and dated copies of payment vouchers, invoices with check number and date issued or copies of canceled checks must be submitted OR a signed and certified summary of all equipment costs claimed(see attached sample). Voucher or invoice should include payee,description of item,amount and its relation to the project if not clearly identified in approved project workplan. Expenditure and Reimbursement Report Form Non Point Source Documentation Requirements(10/4/06) Contract Name Contract# Reporting Period Fill in A,B and C below. Attach a signed State Aid voucher and signed Self-Certification form. If this is your first reimbursement request or if you have met or exceeded 25%,50%,75%or 100%of the contract amount since your last reimbursement request,make sure you have included all documentation information as specified on the following pages. A. Expenses This Reporting Period 1. Personal Services $ 2. Nonpersonal Services i. Travel $ ii. Equipment $ iii. Supplies&Materials $ iv.Contracts a. construction $ b.design $ c.engineering $ d.miscellaneous contracts $ v. Land Acquisition $ vi.Other(please specify) $ Total $ 3. Total Costs $ Describe source of local match: B. Expenses Life-To-Date(including this reporting period) 1. Personal Services $ 2. Nonpersonal Services i. Travel $ ii. Equipment $ iii. Supplies&Materials $ iv. Contracts $ a.construction $ b.design $ c.engineering $ d.miscellaneous contracts $ v. Land Acquisition $ vi.Other(please specify) $ Total $ 3. Total Costs $ Describe source of local match: C. Reimbursement Summary TOTAL Life-to-Date Expenses $ State Assistance Percentage Reimbursable Share $ o X�o TOTAL Reimbursable-to-date LESS Previous Payments (_ TOTAL Amount Due This Reporting Period $ Revised 10/4/06 iii. Supplies&Materials Signed and dated copies of payment vouchers, invoices with check number and date issued or copies of canceled checks must be submitted OR a signed and certified summary of all supplies and materials costs claimed(see attached sample).Voucher or invoice should include payee,description of item, amount and its relation to the project if not clearly identified in approved project workplan. iv. Contracts Signed and dated copies of payment vouchers, invoices with check number and date issued or copies of canceled checks must be submitted OR a signed and certified summary of all contractual costs claimed(see attached sample).Voucher or invoice should include payee,description of item,amount and its relation to the project if not clearly identified in approved project workplan. For Construction Costs provide the following documentation: If there is more than one contract,submit a tabulation sheet summarizing all construction costs. Tabulation sheets should include contract numbers,total costs,a breakdown of eligible and ineligible costs if applicable,the amount paid and warrant or voucher numbers. Submit the most recent signed work-in-place estimates, including all approved amendments to the plans and specifications for each contract. If a partial payment is requested for a construction contract,the latest work-in-place estimate will be sufficient. Final work-in-place estimates will be required for each construction contract upon completion. Submit signed copies of payment vouchers, invoices or canceled checks for each contract. v. Land Acquisition Submit signed copies of payment vouchers, invoices or canceled checks. Submit a copy of the deed. All other required items,discussed prior to contract execution,must have been provided prior to reimbursement. vi. Other(,please specify) Signed and dated copies of payment vouchers, invoices with check number and date issued or copies of canceled checks must be submitted. Voucher or invoice should include payee,description of item,amount and its relation to the project. If indirect costs are claimed on something other than personnel services above, indicate the current rate,costs included in that rate and to which amount the indirect rate is applied. Personal Services Summary Name Hourly Related Number of Total Amount Dates and/or Title Rate Contract Task Hours Claimed Claimed NOTE: If daily time and activity records for each individual employee, signed by the appropriate supervisor(s), which document the above summarized personal services performed in relation to the project are not attached, the following certification must be signed prior to reimbursement of those costs. I hereby certify that daily time and activity records for each individual detailing the specific hours devoted solely to this project which are distinguishable from work done on other projects during the same time frame,maintained in accordance with all applicable federal, state and,general municipal accounting practices and procedures are available in our files for inspection. Furthermore,these files will be maintained for a period of six years beyond the end of this contract term or three years beyond the close out of any federal grant under which these costs are claimed by NYSDEC, whichever is greater. Chief Fiscal Officer Authorized Representative Travel Expenditure Summary Type of Cost Name To/From Related Per Diem, Lodging, Total Amt. Date and/or Title Destination Contract Task Air, Mileage) Claimed NOTE: If travel records for each individual employee, signed by the appropriate supervisor(s), which document the above summarized travel costs performed in relation to the project are not attached,the following certification must be signed prior to reimbursement of those costs. I hereby certify that travel reimbursement records for each individual detailing the specific travel costs devoted solely to this project which are distinguishable from work done on other projects during the same time frame, maintained in accordance with all applicable federal, state and general municipal accounting practices and procedures are available in our files for inspection. Furthermore,these files will be maintained for a period of six years beyond the end of this contract term or three years beyond the close out of any federal grant under which these costs are claimed by NYSDEC,whichever is greater. Chief Fiscal Officer Authorized Representative Equipment Summary Date Payee Voucher/ Item Related Total Amount Check No. Description Contract Task Claimed NOTE: If Equipment records which document the above summarized Equipment costs performed in relation to the project are not attached,the following certification must be signed prior to reimbursement of those costs. I hereby certify that Equipment reimbursement records detailing the specific Equipment costs devoted solely to this project which are distinguishable from work done on other projects during the same time frame, maintained in accordance with all applicable federal, state and general municipal accounting practices and procedures are available in our files for inspection. Furthermore,these files will be maintained for a period of six years beyond the end of this contract term or three years beyond the close out of any federal grant under which these costs are claimed by NYSDEC, whichever is greater. Chief Fiscal Officer Authorized Representative Supplies and Materials Summary Date Payee Voucher/ Item Related Total Amount Check No. Description Contract Task Claimed NOTE: If Supplies and Materials records which document the above summarized Supplies and Materials costs performed in relation to the project are not attached, the following certification must be signed prior to reimbursement of those costs. I hereby certify that Supplies and Materials reimbursement records detailing the specific Supplies and Materials costs devoted solely to this project which are distinguishable from work done on other projects during the same time frame, maintained in accordance with all applicable federal, state and general municipal accounting practices and procedures are available in our files fdr inspection. Furthermore,these files will be maintained for a period of six years beyond the end of this contract term or three years beyond the close out of any federal grant under which these costs are claimed by NYSDEC, whichever is greater. Chief Fiscal Officer Authorized Representative Contractual Services Summary (Engineering, Design or if Other Contractual Services,please specify in description) Date Payee Voucher/ Task Total Amount Check No. Description Claimed NOTE: If Contractual Services records which document the above summarized Contractual Services costs performed in relation to the project are not attached,the following certification must be signed prior to reimbursement of those costs. I hereby certify that Contractual Services reimbursement records detailing the specific Contractual Services costs devoted solely to this project which are distinguishable from work done on other projects during the same time frame, maintained in accordance with all applicable federal, state and general municipal accounting practices and procedures are available in our files for inspection. Furthermore, these files will be maintained for a period of six years beyond the end of this contract term or three years beyond the close out of any federal grant under which these costs are claimed by NYSDEC, whichever is greater. Chief Fiscal Officer Authorized Representative AC 92(Rev 6-94) STATE OF VOUCHER# NEW YORK STANDARD VOUCHER Originating AgencyOrlg.Agency Code Interest Eligible P-Contract NYS Environmental Conservation 09000 Y 0 N Payment Date (MM) (DD) (YY) OSC Use Only Liability Date (MM) (DD) (YY) Payee ID Additional Zip Code Route Payee Amount MIR Date(MM)(DD) (YY) Payee Name(Limit to 30 spaces) IRS Code IRS Amount Payee Name(Limit to 30 spaces) Stat.Type Statistic Indicator Dept. Indicator-Statewide Address(Limit to 30 spaces) Ref./Inv.No.(Limit to 20 spaces) Address(Limit to 30 spaces) Ref./Inv.Date (MM) (DD) (YY) City (Limit to 20 spaces) (Limit to 2 to Zip Code spaces)* Purchase Description of Material/Service Quantity Unit Price Amount Order No. If items are too numerous to be incorporated into the block below and Date use Form AC 93 and carry total forward Payee Certification: I certify that the above bill is just,true and correct,that no part thereof has been paid except as stated and that the balance is actually due and owing,and that taxes from which the State is exempt are excluded. Total Discount Payee's Signature in Ink Title Net FOR AGENCY USE ONLY STATE COMPTROLLER'S PRE-AUDIT Merchandise 1 certify that this voucher is correct and just and payment is approved and the goods or services Certified For Payment Received rendered or furnished are for use in the performance of the official functions and duties of this of agency. Net Amount Date Verified Authorized Signature Page No. Audited by ate aide (uP nyutrod) vd B iddatinn Cost Center Code Accum d Dept Cost Center Vur Yr Object Dept statevdde Amount Age� PO/Contract Line F/P 09 09000 09 09000 09 09000 OSC Q Check if Continuation form is attached SELF-CERTIFICATION FORM I,the undersigned, hereby certify that the attached State of New York State Aid/Standard Voucher dated requesting payment in the amount of $ is reasonable, eligible and allowable based upon the specific requirements set forth in Contract No. including all Appendices. I also certify that the records upon which the costs are claimed, including those claimed as local match, are maintained strictly in accordance with applicable federal, state and general municipal accounting practices and procedures, including but not limited to those costs claimed as personal services. All documentation associated with this project will be maintained for a period of six years beyond the end of this contract term or three years beyond the close out of any federal grant under which these costs are claimed by NYSDEC,whichever is greater. I also certify that the work has been completed in conformance with the Workplan document as approved by the New York State Department of Environmental Conservation and in compliance with all applicable federal,state and local laws,ordinances,rules, regulations and standards. Authorized Representative Date Chief Fiscal Officer Date Format Approved 2/10/03 RESOLUTION 2014-513 ADOPTED DOC ID: 9866 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO.2014-513 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON JUNE 3,2014: RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs Supervisor Scott A. Russell to execute Amendment No. 3 to the State Assistance Contract between the Town of Southold and the New York State Department of Environmental Conservation in connection with a no-cost extension of time extending the term of Contract #C303426 (Peconic Bay Estuary Program) from March 31, 2014 to December 31, 2014, at no cost to the Town, subject to the approval of the Town Attorney. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Louisa P. Evans, Justice SECONDER:Robert Ghosio, Councilman AYES: Ghosio, Dinizio Jr, Ruland, Doherty, Evans, Russell 'STATE AGENCY(Name&Address): BUSINESS UNIT/DEPT.ID: DEC01/3350000 New York State Department of Environmental Conservation CONTRACT NUMBER: C303426 625 Broadway,4th Floor Albany,NY 12233-3506 CONTRACT TYPE: ❑Multi-Year Agreement ❑Simplified Renewal Agreement m Fixed Term Agreement CONTRACTOR SFS PAYEE NAME: TRANSACTION TYPE: TOWN OF SOUTHOLD ❑New ❑Renewal m Amendment CONTRACTOR DOS INCORPORATED NAME: PROJECT NAME: Stormwater Remediation Project in the Peconic Estuary Program CONTRACTOR IDENTIFICATION NUMBERS: AGENCY IDENTIFIER: NYS Vendor ID Number: 1000000876 WQ-LA Federal Tax ID Number: 11-6001939 DUNS Number(if applicable): CFDA NUMBER(Federally Funded Grants Only): CONTRACTOR PRIMARY MAILING ADDRESS: CONTRACTOR STATUS: P.O. Box 1179 53095 MAIN STREET ❑For Profit SOUTHOLD,NEW YORK 11971 ©Municipality, Code: ❑Tribal Nation CONTRACTOR PAYMENT ADDRESS: ❑ Individual ❑✓ Check if same as primary mailing address ❑Not-for-Profit Charities Registration Number: CONTRACT MAILING ADDRESS: Exemption Status/Code: ❑✓ Check if same as primary mailing address ❑Sectarian Entity Contract Number: # C303426 Page 1 of 2 CURRENT CONTRACT TERM: CONTRACT FUNDING AMOUNT (Multi-year -enter total projected amount of the From: 04/01/2007 To: 03/31/2014 contract;Fixed TermlSimplified Renewal -enter current period amount): CURRENT CONTRACT PERIOD: CURRENT: $ 193,844 From: 04/01/2007 To: 03/31/2014 AMENDED: AMENDED TERM: FUNDING SOURCE(S) From: 04/01/2007 To: 12/31/2014 m State AMENDED PERIOD: ❑Federal [� Other- From: 04/01/2007 To: 12/31/2014 FOR MULTI-YEAR AGREEMENTS ONLY -CONTRACT PERIOD AND FUNDING AMOUNT: (Out years represent projected funding amounts) # CURRENTPERIOD CURRENT AMOUNT AMENDED PERIOD AMENDED AMOUNT 1 2 3 4 5 ATTACHMENTS PART OF THIS AGREEMENT: ❑ Attachment A: ❑ A-1 Program Specific Terms and Conditions ❑ A-2 Federally Funded Grants ❑ Attachment B: B-1 Expenditure Based Budget WF B-2 Performance Based Budget B-3 Capital Budget B-1(A)Expenditure Based Budget(Amendment) B-2(A)Performance Based Budget(Amendment) B-3(A)Capital Budget(Amendment) ❑ Attachment C: Work Plan ❑ Attachment D: Payment and Reporting Schedule © Other: Amendment No.3-No Cost Time Extension Appendix A-dated January 2014 Appendix B-dated March 2013 Contract Number:#C303426 Page 2 of 2 Amendment No.3: No-Cost-Time Extension Contract Number: C303426 THIS AMENDMENT,entered into by and between the STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION(hereinafter referred to as the"Department'),having offices at 625 Broadway,Albany,New York 12233, and the Town of Southold(hereinafter referred to as the"Recipient'),with offices at 53095 Main Street,Southold, New York 11971 is hereby attached to and becomes incorporated into the above referenced contract. The parties entered into a prior Contract which was duly assigned Contract Number C303426 which said Contract the parties now desire to amend and/or extend.The Contract provides for amendment or extension in Article 3. The Contractor has requested an amendment to the Contract for the following reason:to allow more time for the Town of Southold to complete the project utilizing new engineering designs for the stormwater runoff issues in the Hashamomuck Pond watershed area. The Contract is amended as follows: 1. Article 3:Term and Effective Date is revised to extend the Contract termination date from March 31,2014 to December 31,2014 2. Appendix A—NYS,Standard Clauses For NYS Contracts dated,June 2006 is hereby revised and replaced with Appendix A—NYS Standard Clauses For NYS Contracts dated,January,2014. 3. Appendix B—Standard Clauses for All New York State Department of Environmental Conservation Contracts dated, April 17,2000 is hereby revised and replaced with Appendix B—Standard Clauses for All New York State Department of Environmental Conservation Contracts dated,March 2013. All other terms and conditions of said Contract shall remain in full force and effect. IN WITNESS THEREOF,the parties hereto have executed or approved this Master Contract on the dates.below their signatures. CONTRACTOR: STATE AGENCY: TOWN OF SOUTHOLD NYS Department of Environmental Conservation By: By: Printed Name Printed Name Title: c/l.r C) Title: Date: 4//3 f/y Date: STATE OF NEW YORK County of :U1PC—)(K 4. On the 13 day of C.�I'll of,before me personally appeared - ��to me known, who being by me duly sworn,did depose and sa that he/she resides at that he/ske is the Std P.t''t/tsyj-- of the w� the ntractor described herein w ich executed the foregoing instrument; and that he/she signed his/Jfa name thereto as authorized by the contractor named on the face page of this. Contract. (Notary) � � �, f1 LAUREN M.STANMH • ft f y Public,State of New Yak No.OJST6164008 OueliRea in Suffolk C=* Egdm Aprild ATTORNEY GENERAL'S SIGNATURE STATE COMPTROLLER'S SIGNATURE Printed Name Printed Name Title: Title: Date: Date: Contract Number:# C303426 Page 1 of 1,Master Contract for Grants Signature Page STAMAR9 MAUM RR NYS CBNi MU SpA STANDARD CLAUSES FOR NYS CONTRACTS 4. WORKERS' COMPENSATION BENEFITS. In accordance with Section 142 of the State Finance Law, this The parties to the attached contract, license, lease,amendment contract shall be void and of no force and effect unless the or other agreement of any kind (hereinafter, "the contract" or Contractor shall provide and maintain coverage during the life this contract ) agree to be bound by the following clauses of this contract for the benefit of such employees as are which are hereby made a part of the contract (the word required to be covered by the provisions of the Workers' "Contractor" herein refers to any party other than the State, Compensation Law. whether a contractor, licenser, licensee, lessor, lessee or any other party): 5. NON-DISCRIMINATION REQUIREMENTS. To the extent required by Article 15 of the Executive Law (also. 1. EXECUTORY CLAUSE. In accordance with Section 41 known as the Human Rights Law) and all .other State and of the State Finance Law, the State shall have no liability Federal statutory and constitutional non-discrimination under this contract to the Contractor or to anyone else beyond provisions, the Contractor will not discriminate against any funds appropriated and available for this contract. employee or applicant for employment because of race,creed, color, sex (including gender identity or expression), national 2. NON-ASSIGNMENT CLAUSE. In accordance with origin, sexual orientation, military status, age, disability, Section 138 of the State Finance'Law,this contract may not be predisposing genetic characteristics,marital status or domestic assigned by the Contractor or its right,title or interest therein violence victim status. Furthermore, in accordance with assigned, transferred, conveyed, sublet or otherwise disposed Section 220-e of the Labor Law, if this is a contract for the of without the State's previous written consent, and attempts construction, alteration or repair of any public building or to do so are null and void. Notwithstanding the foregoing, public work or'for the manufacture, sale or distribution of such prior written consent of an assignment of a contract let materials, equipment or supplies, and to the extent that this pursuant to Article XI of the State Finance Law may be contract shall be performed within the State of New York, waived at the discretion of the contracting agency and with the Contractor agrees that neither it nor its subcontractors shall,by concurrence of the State Comptroller where the original reason of race, creed,color, disability, sex, or national origin: contract was subject to the State Comptroller's approval, (a) discriminate in hiring against any New York State citizen where the assignment is due to a reorganization, merger or who is qualified and available to perform the work; or (b) consolidation of the Contractor's business entity or enterprise. discriminate against or intimidate-any employee hired for the The State retains its right to approve an assignment and to performance of work under this contract. If this is a building require that any Contractor demonstrate its responsibility to do service contract as defined in Section 230 of the Labor Law, business with the State. The Contractor may,however,assign then, in accordance with Section 239 thereof, Contractor its right to receive payments without the State's prior written agrees that neither it nor its subcontractors shall by reason of consent unless this contract concerns Certificates of race, creed, color, national origin, age, sex or disability: (a) Participation pursuant to Article 5-A of the State Finance Law. discriminate in hiring against any New York State citizen who. is qualified and available to perform the work; or (b) 3. COMPTROLLER'S APPROVAL. In accordance with discriminate against or intimidate any employee hired for the Section 112 of the State Finance Law (or, if this contract is performance of work under this contract. Contractor is subject with the State University or City University of New York, to fines of $50.00 per person per day for any violation of Section 355 or Section 6218 of the Education Law), if this Section 220-e or Section 239 as well as possible termination contract exceeds $50,000 (or the minimum thresholds agreed of this contract and forfeiture of all moneys due hereunder for to by the Office of the State Comptroller for certain S.U.N.Y. a second or subsequent violation. and C.U.N.Y. contracts), or if this is an amendment for any I amount to a contract which, as so amended, exceeds said 6. WAGE AND HOURS PROVISIONS. If this is a public statutory amount, or if, by this contract, the State agrees to work contract covered by-Article 8 of the Labor Law or a give something other than money� when the value or building service contract covered by Article 9 thereof, neither reasonably estimated value of such consideration exceeds Contractor's employees nor the employees of its $10,000, it shall not be valid, effective or binding upon the subcontractors may be required or permitted to work more State until it has been approved by the State Comptroller and than the number of hours or days stated in said statutes,except filed in his office. Comptroller's approval of contracts let by as otherwise provided in the Labor Law and as set forth in the Office of General Services is required when such contracts prevailing wage and supplement schedules issued by the State exceed $85,000 (State Finance Law Section 163.6-a). Labor Department. Furthermore, Contractor and its However, such pre-approval shall not be required for any subcontractors must pay at least the prevailing wage rate and contract established as a centralized contract through the pay or provide the prevailing supplements, including the Office of General Services or for a purchase order or .other premium rates for overtime pay, as determined by the State transaction issued under such centralized contract. Labor Department in accordance with the Labor Law. Additionally, effective'April 28,2008, if this is a public work contract covered by Article 8 of the Labor Law,the Contractor Page 1 January 2014 understands and agrees that the filing of payrolls in a manner which they were made and for six (6) additional years consistent with Subdivision 3-a of Section 220 of the Labor thereafter. The State Comptroller, the Attorney General and Law shall be a condition precedent to payment by the State of any other person or entity authorized- to conduct an any State approved sums due and owing for work done upon examination,as well as the agency or agencies involved in this the project. contract, shall have access to the Records during normal business hours at an office of the Contractor within the State 7. NON-COLLUSIVE BIDDING CERTIFICATION. In of New York or,.if no such office is available, at a mutually accordance with Section 139-4 of the State Finance Law, if agreeable and reasonable venue within the State, for the term this contract was awarded based upon the submission of bids, specified above for the purposes of inspection, auditing and Contractor affirms, under penalty of perjury, that its bid was copying. The State shall take reasonable steps to protect from arrived at independently and without collusion aimed at public disclosure any of the Records which are exempt from restricting competition. Contractor further affirms that,at the disclosure under Section 87 of the Public Officers Law (the time Contractor submitted its bid, an authorized and "Statute")provided that: (i)the Contractor shall timely inform responsible person executed and delivered to the State a non- an appropriate State official, in writing, that said records collusive bidding certification on Contractor's behalf. should not be disclosed; and (ii) said records shall be sufficiently identified; and(iii) designation of said records as 8. INTERNATIONAL BOYCOTT PROHIBITION. In exempt under the Statute is reasonable. _ Nothing contained accordance with Section 220-f of the Labor Law and Section herein shall diminish, or in any way adversely affect, the 139-h of the State Finance Law, if this contract exceeds State's right to discovery in any pending or future litigation. $5,000, the Contractor agrees, as a material condition of the contract, that neither the Contractor nor any substantially 11. IDENTIFYING INFORMATION AND PRIVACY owned or affiliated person,, firm, partnership or corporation NOTIFICATION. (a) Identification Number(s). Every has participated, is participating, or shall participate in an invoice or New York State Claim for Payment submitted to a international boycott in violation of the federal Export New York State agency by a payee,for payment for the sale of Administration Act of 1979 (50 USC App. Sections 2401 et goods or services or for transactions (e.g., leases, easements, seq.)or regulations thereunder. If such Contractor, or any of licenses,etc.)related to real or personal property must include the aforesaid affiliates of Contractor, is convicted or is the payee's identification number. The number is any or all of otherwise found to have violated s4id laws or regulations upon the following: (i) the payee's Federal employer identification the final determination of the United States Commerce number,(ii)the payee's Federal social security number,and/or Department or any other appropriate agency of the United (iii)the payee's Vendor Identification Number assigned by the States subsequent to the contract's execution, such contract, Statewide Financial System. Failure to include such number amendment or modification thereto shall be rendered forfeit or numbers may delay payment. Where the payee does not and void. The Contractor shall so notify the.State Comptroller have such number or numbers, the payee, on its invoice or within five(5)business days of such conviction,determination Claim for Payment, must give the reason or reasons why the or disposition of appeal(2NYCRR 105.4). payee does not have such number or numbers. 9. SET-OFF RIGHTS: The State shall have all of its (b) Privacy Notification. (1) The authority to request the common law, equitable and statutory rights of set-off. These above personal information from a seller of goods or services rights shall include,but not be limited to,the State's option to or a lessor of real or personal property, and the authority to withhold for the purposes of set-off any moneys due to the maintain such information, is found in Section 5 of the State Contractor under this contract up to any amounts due and Tax Law. Disclosure of this information by the seller`or lessor owing to the State with regard to this contract, any other to the State is mandatory. The principal purpose for which the contract with any State department or agency, including any information is collected is to enable the State to identify contract for a term commencing prior to the term of this individuals, businesses and others who have been delinquent contract,plus any amounts due and owing to the State for any in filing tax returns or may have understated their tax other reason including, without limitation, tax delinquencies, liabilities and to generally identify persons affected by the fee delinquencies or monetary penalties relative thereto. The taxes administered by the Commissioner of Taxation and State shall exercise its set-off rights in accordance with normal Finance. The information will be used for tax administration State practices including, in cases of set-off pursuant to an purposes and for any other purpose authorized by law. (2)The audit, the finalization of such audit by the State agency, its personal information is requested by the purchasing unit of the representatives,or the State Comptroller. agency contracting to purchase the goods or services or lease the real or personal property covered by this contract or lease. 10. RECORDS. The Contractor shall establish and maintain The information is maintained in the Statewide Financial complete and accurate books, records, documents, accounts System by the Vendor Management Unit within the Bureau of and other evidence directly pertinent to performance under State Expenditures,Office of the State Comptroller, 110 State this contract (hereinafter, collectively, "the Records"). The Street,Albany,New York 12236. Records must be kept for the balance of the calendar year in Page 2 January 2014 STANNANN CUWM M NOS 98KTL1CTS WOMM■ 12. EQUAL EMPLOYMENT OPPORTUNITIES FOR improvements thereon(the "Work")except where the Work is MINORITIES AND WOMEN. In accordance with Section for the beneficial use of the Contractor. Section 312 does not 312 of the Executive Law and 5 NYCRR 143, if this contract apply to: (i)work,goods or services unrelated to this contract; is: (i) a written agreement or purchase order instrument, or(ii) employment outside New York State. The State shall providing for a total expenditure in excess of $25,000.00, consider compliance by a contractor or subcontractor with the whereby a contracting agency is committed to expend or does requirements of any federal law concerning equal employment expend funds in return for labor, services, supplies, opportunity which effectuates the purpose of this section. The equipment, materials or any combination of the foregoing, to contracting agency shall determine whether the imposition of be performed for, or rendered or furnished to the contracting the requirements of the provisions hereof duplicate or conflict agency; or (ii) a written agreement in excess of$100,000.00 with any such federal law and if such duplication or conflict whereby a contracting agency is committed to expend or does exists, the contracting agency shall waive the applicability of expend funds for the acquisition, construction, demolition, Section 312 to the extent of such duplication or conflict. replacement, major repair or renovation of real property and Contractor will comply with all duly promulgated and lawful improvements thereon; or (iii) a written agreement in excess rules and regulations of the Department of Economic of$100,000.00 whereby the owner of a State assisted housing Development's Division of Minority and Women's Business project is committed to expend or does expend funds for the Development pertaining hereto. acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements 13. CONFLICTING TERMS. In the event of a conflict thereon for such project,then the following shall apply and by between the terms of the contract (including any and all signing this agreement the Contractor certifies and affirms that attachments thereto and amendments thereof)and the terms of it is Contractor's equal employment opportunity policy that: this Appendix A,the terms of this Appendix A shall control. (a) The Contractor will not discriminate against employees or 14.GOVERNING LAW. This contract shall be governed by applicants for employment because of race, creed, color, the laws of the State of New York except where the Federal national origin, sex, age, disability or marital status, shall supremacy clause requires otherwise. make and document its conscientious and active efforts to employ and utilize minority group members and women in its 15. LATE PAYMENT. Timelinessof payment and any work force on State contracts and will undertake or continue interest to be paid to Contractor for late payment shall be existing programs of affirmative action to ensure that minority governed by Article 11-A of the State Finance Law to the group members and women are afforded equal employment extent required by law. opportunities without discrimination. Affirmative action shall mean recruitment, employment, job assignment, promotion, 16. NO ARBITRATION. Disputes involving this contract, upgradings,demotion,transfer,layoff,or termination and rates including the breach or alleged breach thereof, may not be of pay or other forms of compensation; submitted to binding arbitration (except where statutorily authorized), but must, instead, be heard in a court of (b) at the request of the contracting agency, the Contractor competent jurisdiction of the State of New York. shall request each employment agency, labor union, or authorized representative of workers with which it has a 17.SERVICE OF PROCESS. In addition to the methods of collective bargaining or other agreement or understanding, to service allowed by the State Civil Practice Law & Rules furnish a written statement that such employment agency, ("CPLR"), Contractor hereby consents to service of process labor union or representative will not discriminate on the basis upon it by registered or certified mail,return receipt requested. of race, creed, color, national origin, sex, age, disability or Service hereunder shall be complete upon Contractor's actual marital status and that such union or ,representative will receipt of process or upon the State's receipt of the return affirmatively cooperate in the implementation of the thereof by the United States Postal Service.as refused or Contractbr's obligations herein;and undeliverable. Contractor must promptly notify the State, in writing, of each and every change of address to which service (c) the Contractor shall state, in all solicitations or of process can be made. Service by the State to the last known advertisements for employees, that, in the performance of the address shall be sufficient. Contractor will have thirty (30) State contract, all qualified applicants will be afforded equal calendar days after service hereunder is complete in which to employment opportunities without discrimination because of respond. race, creed, color, national origin, sex, age, disability or marital status. 18. PROHIBITION ON PURCHASE OF TROPICAL HARDWOODS. The Contractor certifies and warrants that Contractor will include the provisions of "a"; "b", and "c" all wood products to be used under this contract award will be above, in every subcontract over $25,000.00 for the in accordance with, but not limited to, the specifications and construction, demolition, replacement, major repair, provisions of Section 165 of the State Finance Law, (Use of renovation, planning or design of real property and Tropical Hardwoods) which prohibits purchase and use of Page 3 January 2014 STANNAU KANSES M NYS CINTUaS ■ tropical hardwoods,unless specifically exempted,by the State https://ny.newnycontracts.com/FrontEndNendorSearchPu or any governmental agency or political subdivision or public blic.asn benefit corporation. Qualification for an exemption under this law will be the responsibility of the contractor to establish to The Omnibus Procurement Act of 1992 requires that by meet with the approval of the State, signing this bid proposal or contract, as applicable, Contractors certify that whenever the total bid amount is In addition, when.any portion of this contract involving the greater than$1 million: use of woods, whether supply or installation, is to be performed by any subcontractor, the prune Contractor will (a) The Contractor has made reasonable efforts to encourage indicate and certify in the submitted bid proposal that the the participation of New York State Business Enterprises as subcontractor has been informed and is in compliance with suppliers and subcontractors, including certified minority and specifications and provisions regarding use of tropical women-owned business enterprises, on this project, and has hardwoods as detailed in §165 State Finance Law. Any such retained the documentation of these efforts to be provided use must meet with the approval of the State; otherwise, the upon request to the State; bid may not be considered responsive. Under bidder certifications, proof of qualification for exemption will be the (b) The Contractor *has complied with the Federal Equal responsibility of the Contractor to meet with the approval of Opportunity Act of 1972(P.L.92-261),as amended; the State. (c) The Contractor agrees to make reasonable efforts to 19. MACBREDE FAIR EMPLOYMENT PRINCIPLES. provide notification to New York State residents of In accordance with the MacBride Fair Employment Principles employment opportunities on this project through listing any (Chapter 807 of the Laws of 1992), the Contractor hereby such positions with the Job Service Division of the New York stipulates that the Contractor either (a) has no business State Department of Labor, or providing such notification in operations in Northern Ireland,or(b)shall take lawful steps in such manner as is consistent with existing collective good faith to conduct any business operations in Northern bargaining contracts or agreements. The Contractor agrees to Ireland in accordance with the MacBride Fair Employment document these efforts and to provide said documentation to Principles(as described in Section 165 of the New York State the State upon request;and Finance Law), and shall permit independent monitoring of compliance with such principles. (d) The Contractor acknowledges notice that the State may seek to obtain offset credits from foreign countries as a result 20. OMNIBUS PROCUREMENT ACT OF 1992. It is the of this contract and agrees to cooperate with the State in these policy of New York State to maximize opportunities for the efforts. participation of New York State business enterprises, including minority and women-owned business enterprises as 21. RECIPROCITY AND SANCTIONS PROVISIONS. bidders, subcontractors and suppliers on its procurement Bidders are hereby notified that if their principal place of contracts. business is located in a country, nation, province, state or political subdivision that penalizes New York State vendors, Information on the availability of New York State and if the goods or services they offer will be substantially subcontractors and suppliers is available from: produced or performed outside New York State,the Omnibus Procurement Act 1994 and 2000 amendments (Chapter 684 NYS Department of Economic Development and Chapter 383, respectively) require that they be denied Division for Small Business contracts which they would otherwise obtain. NOTE: As of Albany,New York 12245 May 15, 2002, the list of discriminatory jurisdictions subject Telephone: 5.18-292-5100 to this provision includes the states of South Carolina,Alaska, Fax: 518-292-5884 West Virginia, Wyoming, Louisiana and Hawaii. Contact email:opa(&,esd.ny.gov NYS Department of Economic Development for a current list of jurisdictions subject to this provision. A directory of certified minority and women-owned business enterprises is available from: 22. COMPLIANCE WITH NEW YORK STATE INFORMATION SECURITY - .BREACH AND NYS Department of Economic Development NOTIFICATION ACT. Contractor shall comply with the Division of Minority and Women's Business Development provisions of the New York State Information Security Breach 633 Third Avenue and Notification Act (General Business Law Section 899-aa; New York,NY 10017 State Technology Law'Section 208). 212-803-2414 email:mwbecertificatioa ftsd.n.gov 23. COMPLIANCE WITH CONSULTANT DISCLOSURE LAW. If this is a contract for consulting Page 4 January 2014 STAI■A 9UWSIS RN NVS gN1N61S MPrMA services, defined for purposes of this requirement to include During the term of the Contract, should the state agency analysis, evaluation, research, training, data processing, receive information that a person(as defined in State Finance computer programming, engineering, environmental, health, Law §165-a) is in violation of the above-referenced and mental health services, accounting, auditing, paralegal, certifications, the state agency will review such information legal or similar services,then, in accordance with Section 163 and offer the person an opportunity to respond. If the person (4-g)of the State Finance Law(as amended by Chapter 10 of fails to demonstrate that it has ceased its engagement in the the Laws of 2006),the Contractor shall timely, accurately and investment activity which is in violation of the Act within 90 properly comply with the requirement to submit an annual days after the determination of such.violation, then the state employment report for the contract to the agency that awarded agency shall take such action as may be appropriate and the contract, the Department of Civil Service and the State provided for by law, rule, or contract, including, but not Comptroller. limited to, imposing sanctions, seeking compliance, recovering damages,or declaring the Contractor in default. 24. PROCUREMENT LOBBYING. To the extent this agreement is a"procurement contract"as defined by The state agency reserves the right to reject any bid, request State Finance Law Sections 139-j and 139-k, by signing this for assignment,renewal or extension for an entity that appears agreement the contractor certifies and affirms that all on the Prohibited Entities List prior to the award, assignment, disclosures made in accordance with State Finance Law renewal or extension of a contract, and to pursue a Sections 139-j and 139-k are complete, true and accurate. In responsibility review with respect to any entity that is awarded the event such certification is found to be intentionally false or a contract and appears on the Prohibited Entities list after intentionally incomplete, the State may terminate the. contract award. agreement by providing written notification to the Contractor in accordance with the terms of the agreement. 25. CERTIFICATION OF REGISTRATION TO COLLECT SALES AND COMPENSATING USE TAX BY CERTAIN STATE CONTRACTORS, AFFILIATES AND SUBCONTRACTORS. To the extent this agreement is a contract as defined by Tax Law Section 5-a, if the contractor fails to make the certification required by Tax Law Section 5-a or if during the term of the contract,the Department 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 file or false certification shall be a material breach of this contract and this contract may be terminated,by providing written notification to the Contractor in accordance with the terms of the agreement, if the covered agency determines that such action is in the best interest of the State. 26. ERAN DIVESTMENT ACT. By entering into this Agreement,Contractor certifies in accordance with State Finance Law§165-a that it is not on the"Entities Determined to be Non-Responsive Bidders/Offerers pursuant to the New York State Iran Divestment Act of 2012"("Prohibited Entities List")posted at: hW://www.ogs.Lay.gov/about/regs/docs/ListofEntities.pd Contractor further certifies that it will not utilize on this Contract any subcontractor that is identified on the Prohibited Entities List. Contractor agrees that should it seek to renew or extend this Contract, it must provide the same certification at the time the Contract is renewed or extended. Contractor also agrees that any proposed Assignee of this Contract will be required to certify that it is not on the Prohibited Entities List before the contract assignment will be approved by the State. Page 5 January 2014 APPENDIX B Standard Clauses for All New York State Department of Environmental Conservation Contracts The parties to the attached contract,license,lease,grant,amendment or other agreement of any kind(hereinafter "the contract"or"this contract")agree to be bound by the following clauses which are hereby made a part of the contract. The word "Contractor" herein refers to any party to the contract, other than the New York State Department of Environmental Conservation(hereinafter"Department"). I. Postponement, suspension, abandonment or without some restriction on future activities,. impair or termination by the Department: appear to impair the Contractor's objectivity in performing The Department shall have the right to postpone, suspend, the work for the Department. abandon or terminate this contract,and such actions shall in no event be deemed a breach of contract. In the event of (2) The Contractor agrees that if an actual, or potential any termination, postponement, delay, suspension or organizational conflict of interest is discovered at any time abandonment, the Contractor shall immediately stop work, after award, whether before or during performance, the take steps to incur no additional obligations, and to limit Contractor will immediately make a full disclosure in further expenditures.Within 15 days of receipt of notice,the writing to the Department. This disclosure shall include a Contractor shall deliver to the Department all data,reports, description of actions which the Contractor has taken or plans,or other documentation related to the performance of proposes to take,after consultation with the Department,to this contract, including but not limited to source codes and avoid,mitigate,or minimize the actual or potential conflict. specifications, guarantees, warranties, as-built plans and - shop drawings. In any of these events,the Department shall (3) To the extent that the work under this contract requires make settlement with the Contractor upon an equitable basis access to personal, proprietary or confidential business or as determined by the Department which shall fix the value of financial data of persons or other companies,and as long as the work which was performed by the Contractor prior to the such data remains proprietary or confidential,the Contractor postponement, suspension, abandonment or termination of shall protect such data from unauthorized use and disclosure this contract. This clause shall not apply to this contract if and agrees not to use it to compete with such companies. the contract contains other provisions applicable to postponement,suspension or termination of the contract. (b)Personal Conflict of Interest:The following provisions with regard to management or professional level employee II. Indemnification and Hold harmless The personnel performing under this contract shall apply until Contractor agrees that it will indemnify and save harmless the earlier of the termination date of the affected the Department and the State of New York from and against employee(s)or the duration of the contract. - all losses from claims, demands, payments, suits, actions, recoveries and judgments of every nature and description (1)A.personal conflict of interest is defined as a relationship brought or recovered against it by reason of any omission or of an employee,subcontractor employee,or consultant with tortious act of the Contractor, its agents, employees, an entity that may impair or appear to impair the objectivity suppliers or subcontractors in the performance of this of the employee, subcontractor employee, or consultant in contract. The Department and the State of New York may performing the contract work. The Contractor agrees to retain such monies from the amount due Contractor as may , notify the Department immediately of any actual or potential be necessary to satisfy any claim for damages,costs and the personal conflict of interest with regard to any such person like, which is asserted against the Department and/or the working on or having access to information regarding this State of New York. contract, as soon as Contractor becomes aware of such conflict. The Department will notify the Contractor of the III. Conflict of Interest appropriate action to be taken. (a) Organizational Conflict of Interest. To the best of the Contractor's knowledge and belief,the Contractor warrants .(2) The Contractor agrees to advise all management or that there are no relevant facts or circumstances which could professional level employees involved in the work of this give rise to an organizational conflict of interest, as herein contract, that they must report any personal conflicts of defined,or that the Contractor has disclosed all such relevant interest to the Contractor. The Contractor must then advise information to the Department. the Department which will advise the Contractor of the appropriate action to be taken. (1) An organizational conflict of interest exists when the nature of the work to be performed under this contract may, 1 March 2013 (3) Unless waived by the Department, the Contractor developed the statement of work or the solicitation shall certify annually that,to the best of the Contractor's package knowledge and belief, all actual, apparent or potential conflicts of interest,both personal and organizational,as (e)The Contractor agrees to insert in each subcontractor defined herein, have been reported to the Department. consultant agreement placed hereunder (except for Such certification must be signed by a senior executive subcontracts or consultant agreements for well drilling, of the Contractor and submitted in accordance with fence erecting,plumbing,utility hookups,security guard instructions provided by the Department. Along with services, or electrical services) provisions which shall the annual certification,the Contractor shall also submit conform substantially to the language of this clause, an update of any changes in any conflict of interest plan including this paragraph(e),unless otherwise authorized submitted with its proposal for this contract. The initial by the Department. certification shall cover the one-year period from the date of contract award,and all subsequent certifications If this is a contract for work related to action at an shall cover successive annual periods thereafter. The inactive hazardous. waste site, the following certification is to be submitted no later than 45 days after paragraph shall apply to those Contractors whose the close of the previous certification period covered. work requires the application of professional judgment: It does not apply to construction (4) In performing this contract, the Contractor contracts. recognizes that its employees may have access to data, . either provided by the Department or fust generated (f) Due to the scope and nature of this contract, the during contract performance,of a sensitive nature which Contractor shall observe the following restrictions on should not be released without Department approval. If future hazardous waste site contracting for the duration this situation occurs, the Contractor agrees to obtain of the contract. confidentiality agreements from all affected employees working on requirements under this contract including (1) The Contractor, during the life of the work subcontractors and consultants. Such agreements shall assignment and for a period of three(3) years after the contain provisionswhichstipulate that each employee completion of the work assignment,agrees not to enter agrees not,to disclose,either in whole or in part,to any into a contract with or to represent any party with respect entity external to the Department,Department of Health to any work relating to remedial activities or work or the New York State Department of Law, any pertaining to a site where the Contractor previously information or data provided by the Department or first performed work for the Department under this contract generated by the Contractor under this contract, any without the prior written approval of the Department. site-specific cost information, or any, enforcement strategy without first obtaining the written permission of (2) The Contractor agrees in advance that if any the Department. If a Contractor,through an employee bids/proposals are submitted for any work for a third or otherwise, is subpoenaed to testify or produce party that would require written approval of the documents, which could result in such disclosure, the Department prior to entering into a contract because of Contractor must provide immediate advance notification the restrictions of this clause,then the bids/proposals are to the Department so that the Department can authorize submitted at the Contractor's own risk, and no claim such disclosure or have the opportunity to take action to shall be made against the Department to recover prevent such disclosure. Such agreements shall be bid/proposal costs as a direct cost whether the request effective for the life of the contract and for a period of for authorization to enter into the contract is denied or five(5)years atter completion of the contract. approved. (c)_Remedies - The Department may terminate this IV. Requests for Payment All requests for contract in whole or in part,if it deems such termination payment by the Contractor must be submitted on forms necessary to avoid an organizational or personal conflict supplied and approved by the Department. Each of interest,or an unauthorized disclosure of information. payment request must contain such items of information If the Contractor fails to make required disclosures or and supporting documentation as are required by the misrepresents relevant information to the Department, Department,and shall be all-inclusive for the period of the Department may terminate the contract, or pursue time covered by the payment request. such other remedies as may be permitted by the terms of Clause I of this Appendix or other applicable provisions of this contract regarding termination. (d)The Contractor will be ineligible to make a proposal or bid on a contract for which the Contractor has 2 March 2013 V. Compliance with Federal requirements To (2)The decision of the designated individual shall be the the extent that federal funds are provided to the Contractor final DEC determination,unless the Contractor files a or used in paying the Contractor under this contract, the written appeal of that decision with the designated appeal Contractor agrees that it will comply with all applicable individual("DAI")within twenty days of receipt of that federal laws and regulations, including but not limited to decision. those laws and regulations under which the Federal funds were authorized. The Contractor further agrees to insert in (b)Upon receipt of the written appeal,the DAI,will review any subcontract hereunder,provisions which shall conform the record and decision.Following divisional procedures in substantially to the language of this clause. effect at that time,the DAI will take one of the following actions,with written notice to the Contractor. V1. Independent Contractor The Contractor shall have the status of an independent contractor.. Accordingly, (1)Remand the matter to the program staff for further the Contractor agrees that it will conduct itself in a manner negotiation or information if it is determined that the matter consistent with such status,and that it will neither hold itself is not ripe for review;or out as, nor claim to be, an officer or employee of the (2)Determine that there is no need for further action,and Department by reason of this contract. It further agrees that the determination of the designated individual is that it will not make any claim,demand or application to the confirmed;or Department for any right or privilege applicable to an (3)Make a determination on the record as it exists. officer or employee of the Department, including but not limited to worker's compensation coverage,unemployment (c) The decision of the DAI shall be the final DEC insurance benefits, social security coverage, or retirement decision unless the Contractor files a written appeal of that membership or credit. decision with the Chair of the Contract Review Committee VII. Compliance with applicable laws ("CRC")within twenty days of receipt of that decision. (a) Prior to the commencement of any work under this The designated individual to hear disputes is: contract,the Contractor is required to meet all legal Joseph Dj ura, Director, BWC requirements necessary in the performance of the contract. (Name and Title) This includes but is not limited to compliance with all applicable federal,state and local laws and regulations NYS DEC, 625 Broadway, 4th Floor promulgated thereunder.It is the Contractor's responsibility Albany NY 12233-3506 to obtain any necessary permits,or other authorizations. (Address) By signing this contract,the Contractor affirmatively represents that it has complied with said laws,unless it (518)402-8177 advises the Department otherwise,in writing. The (Telephone) Department signs this contract in reliance upon this representation. T (b) During the term of this contract,and any extensions he designated appeal individual to review decisions is: thereof,the Contractor must remain incompliance with said Alan Fuchs, Director,BFP&DS laws. A failure to notify the Department of noncompliance (Name and Title) of which the Contractor was or should have been aware, NYS DEC, 625 Broadway, 4th Floor may be considered a material breach of this contract. Albany NY 12233-3504 VIII. Dispute Resolution The parties agree to the (Address) following steps,or as many as are necessary to resolve 1518)402-8185 disputes between the Department and the Contractor. (Telephone) (a) The Contractor specifically agrees to submit,in the The Chair of the Contract Review Committee is: first instance,any dispute relating to this contract to the designated individual,who shall render a written decision Department of Environmental Conservation and furnish a copy thereof to the Contractor. Nancy W.Lussier Chair Contract Review Committee (1) The Contractor must request such decision in writing 625 Broadway, IO h Floor no more than fifteen days after it knew or should have Albany,NY 12233-5010 known of the facts which are the basis of the dispute. Telephone:(518)402-9228 3 March 2013 (k)The CRC will promptly convene a review in accordance (d)Upon receipt of the written appeal,the Chair of the with Article 15-A of the Executive Law and the regulations CRC,in consultation with the members of the CRC and the promulgated thereunder. Office of General Counsel,will take one of the following actions,or a combination thereof,with written notice to the IX. Labor Law Provisions Contractor. (a)When applicable,the Contractor shall post,in a location (1)Remand the matter to program staff for additional fact designated by the Department,a copy of the New York finding,negotiation,or other appropriate action;or State Department of Labor schedules of prevailing wages and supplements for this project,a copy of all (2)Adopt the decision of the DAI;or re-determinations of such schedules for the project,the Workers'Compensation Law Section 51 notice,all other (3)Consider the matter for review by the CRC in notices required by law to be posted at the site,the accordance with its procedures. Department of Labor notice that this project is a public work project on which each worker is entitled to receive the (e)Following a decision to proceed pursuant to(d)3,above, prevailing wages and supplements for their occupation,and the Chair of the CRC shall convene a proceeding in all other notices which the Department directs the accordance with the CRC's established contract dispute Contractor to post. The Contractor shall provide a surface resolution guidelines. The proceeding will provide the for such notices which is satisfactory to the Department. Contractor with an opportunity to be heard. The Contractor shall maintain such notices in a legible manner and shall replace any notice or schedule which is (f)Following a decision pursuant to(d)2 or(d)3,the CRC damaged,defaced,illegible or removed for any reason. shall make a written recommendation to the Assistant Contractor shall post such notices before commencing any Commissioner for Administration who shall render the final work on the site and shall maintain such notices until all DEC determination. work on the site is complete. (g)At any time during the dispute resolution process,and (b)When appropriate,contractor shall distribute to each upon mutual agreement of the parties,the Office of worker for this Contract a notice,in a form provided by the Hearings and Mediation Services(OHMS)may be Department,that this project is a public work project on requested to provide mediation services or other appropriate which each worker is entitled to receive the prevailing wage means to assist in resolving the dispute. Any findings or and supplements for the occupation at which he or she is recommendations made by the OHMS will not be binding working. Worker includes employees of Contractor and on either party. all Subcontractors and all employees of suppliers entering the site. Such notice shall be distributed to each worker (h)Final DEC determinations shall be subject to review before they start performing any work of this contract. At only pursuant to Article 78 of the Civil Practice Law and the time of distribution,Contractor shall have each worker Rules. sign a statement,in a form provided by the Department, certifying that the worker has received the notice required (i)Pending final determination of a dispute hereunder,the by this section,which signed statement shall be maintained Contractor shall proceed diligently with the performance of with the payroll records required by the following the Contract in accordance with the decision of the paragraph(c). designated individual. Nothing in this Contract shall be construed as making final the decision of any administrative (c)Contractor shall maintain on the site the original officer upon a question of law. certified payrolls or certified transcripts thereof which Contractor and all of its Subcontractors are required to 0)Notwithstanding the foregoing,at the option of the maintain pursuant to the New York Labor Law Section 220. Contractor,the following shall be subject to review by the Contractor shall maintain with the payrolls or transcripts CRC: Disputes arising under Article 15-A of the thereof,the statements signed by each worker pursuant to Executive Law(Minority and Women Owned Business paragraph(b). participation),the Department's determination with respect to the adequacy of the Contractor's Utilization Plan,or the (d)Within thirty days of issuance of the first payroll,and Contractor's showing of good faith efforts to comply every thirty days thereafter,the Contractor and every therewith. A request for a review before the CRC should subcontractor must submit a transcript of the original be made,in writing,within twenty days of receipt of the payroll to the Department,which transcript must be Department's determination. subscribed and affirmed as true under penalty of perjury. 4 March 2013 X. Offset In accordance with State Law,the Department has the authority to administratively offset any monies due (1)prompt written notice of any action,claim or threat of it from the Contractor,from payments due to the Contractor infringement suit,or other suit,and under this contract.The Department may also(a)assess interest or late payment charges,and collection fees,if (2)the opportunity to take over,settle or defend such action applicable;(b)charge.a fee for any dishonored check;(c) at the Contractor's sole expense,and refuse to renew certain licenses and permits. (3)all available information,assistance and authority XI. Tax Exemption Pursuant to Tax Law Section 1116, necessary to the action,at the Contractor's sole expense. the State is exempt from sales and use taxes. A standard state voucher is sufficient evidence thereof.For federal (4)The Contractor shall control the defense of any such excise taxes,New York's registration Number 14740026K suit,including appeals,and all negotiations to effect covers tax-free transactions under the Internal Revenue settlement,but shall keep the Department fully informed Code. concerning the progress of the litigation. XII. Litigation Support In the event that the Department (b)If the use of any item(s)or parts thereof is held to becomes involved in litigation related to the subject matter infringe a patent or copyright and its use is enjoined,or of this contract,the Contractor agrees to provide Contractor believes it will be enjoined,the Contractor shall background support and other litigation support,including have the right,at its election and expense to take action in but not limited to depositions,appearances,and testimony. the following order of precedence: Compensation will be negotiated and based on rates established in the contract,or as may otherwise be provided (1)procure for the Department the right to continue using in the contract. the same item or parts thereof, XIII Equipment Any equipment purchased with funds (2)modify the same so that it becomes non-infringing and provided under this contract,shall remain the property of of at least the same quality and performance; the Department,unless otherwise provided in the contract. The Contractor shall be liable for all costs for maintaining (3)replace the item(s)or parts thereof with nonin. inging the property in good,usable condition. It shall be returned items of at least the same quality and performance; to the Department upon completion of the contract,in such condition,unless the Department elects to sell the (4)if none of the above remedies are available,discontinue equipment to the Contractor,upon mutually agreeable its use and eliminate any future charges or royalties terms. pertaining thereto. The Contractor will buyback the infringing product(s)at the State's book value,or in the XIV. Inventions or Discoveries Any invention or event of a lease,the parties shall terminate the lease. If discovery first made in performance of this Contract shall discontinuation or elimination results in the Contractor not be the property of the Department,unless otherwise being able to perform the Contract,the Contract shall be provided in the contract.The Contractor agrees to provide terminated. the Department with any and all materials related to this property.At the Department's option,the Contractor may (c)In the event that an action at law or in equity is be granted a non-exclusive license. commenced against the Department arising out of a claim that the Department's use of any item or material pursuant to XV. Patent and Copyright Protection or resulting from this Contract infringes any patent, If any patented or copyrighted material is involved in or copyright or proprietary right,and such action is forwarded results from the performance of this Contract,this Article by the Department to the Contractor for defense and shall apply. indemnification pursuant to this Article,the Department shall copy all pleadings and documents forwarded to the (a)The Contractor shall,at its expense,defend any suit Contractor together with the forwarding correspondence instituted against the Department and indemnify the and a copy of this Contract to the Office of the Attorney Department against any award of damages and costs made General of the State of New York. If upon receipt of such against the Department by a final judgment of a court of last request for defense,or at any time thereafter,the Contractor resort based on the claim that any of the products,services is of the opinion that the allegations in such action,in whole or consumable supplies furnished by the Contractor under or in part,are not covered by the indemnification set forth in this Contract infringes any patent,copyright or other this Article,the Contractor shall immediately notify the proprietary right;provided the Department gives the Department and the Office of the Attorney General of the Contractor: State of New York in writing and shall specify to what 5 March 2013 extent the Contractor believes it is and is not obligated to and to support its position. defend and indemnify under the terms and conditions of this Contract. The Contractor shall in such event protect the XVIII. Precedence In the event of a conflict between the interests of the Department and State of New York and terms of this Appendix B and the terns of the Contract secure a continuance to permit the State of New York to (including any and all attachments thereto and amendments appear and defend its interests in cooperation with thereof,but not including Appendix A),the terms of this Contractor as is appropriate,including any jurisdictional Appendix B shall control. In the event of a conflict defenses whichfthe Department and State shall have. between the terms of this Appendix B,and the terms of Appendix A,the terms of Appendix A shall control. (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 XIX. • Article 15-Requirements Department as to the items;(2)alterations of the items by the Department;(3)failure of the Department to use PARTICIPATION BY MINORITY GROUP updated items provided by the Contractor for avoiding MEMBERS AND WOMEN WITH RESPECT TO infringement;(4)use of items in combination with STATE CONTRACTS:REQUIREMENTS AND apparatus or devices not delivered by the Contractor;(5)use PROCEDURES of items in a manner for which the same were neither designed nor contemplated;or(6)a patent or copyright in (a)General Provisions which the Department or any affiliate or subsidiary of the Department has any direct or indirect interest by license or (1)The Department is required to implement the provisions otherwise. of New York State Executive Law Article 15-A and 5 NYCRR Parts 142-144_("MWBE Regulations")for all (e)The'foregoing states the Contractor's entire liability for, State contracts as defined therein,with a value(1)in excess or resulting from,patent or copyright infringement or claim of$25,000 for labor,services,equipment,materials,or any thereof combination of the foregoing or(2)in excess of$100,000 for real property renovations and construction. XVI. Force Majeure The term Force Majeure shall include acts of God,work stoppages due to labor disputes or (2)The Contractor to the subject contract(the"Contractor" strikes,fires,explosions,epidemics,riots,war rebellion, and the"Contract,"respectively)agrees,in addition to any sabotage or the like. If a failure of or delay in performance other nondiscrimination provision of the Contract and at no by either party results from the occurrence of a Force additional cost to the New York State Department (the Majeure event,the delay shall be excused and the time for "Department",to fully comply and cooperate with the performance extended by a period-equivalent to the time Department in the implementation of New York State lost because of the Force majeure event,if and to the extent Executive Law Article 15=A. These requirements include that: equal employment opportunities for minority group members and women("EEO")and contracting (a)The delay or failure was beyond the control of the party opportunities for certified minority and women-owned affected and not due to its fault or negligence;and business enterprises("MWBEs"). Contractor's demonstration of"good faith efforts"pursuant to 5 NYCRR (b)The delay or failure was not extended because of the §142.8 shall be a part of these requirements.These affected party's failure to use all reasonable diligence to provisions shall be deemed supplementary to,and not in overcome the obstacle or to resume performance lieu of,the nondiscrimination provisions required by New immediately after such obstacle was overcome;and York State Executive Law Article 15(the"Human Rights Law")or other applicable federal,state or local laws. (c)The affected party provides notice within(5)days of the onset of the event,that it is invoking the protection of this (3)Failure to comply with all of the requirements herein provision. may result in a finding of non-responsiveness, non-responsibility and/or a breach of contract,leading to XVIL Freedom of Information Requests The the withholding of funds or such other actions,liquidated Contractor agrees to provide the Department with any damages pursuant to Section VII of this Article or records which must be released in order to comply with a enforcement proceedings as allowed by the Contract. request pursuant to the Freedom of Information Law. The Department will provide the contractor with an opportunity to identify material which may be protected from release 6 March 2013 (b)Contract Goals areas of recruitment,employment,job assignment, (1)For purposes of this procurement,the Department hereby promotion,upgrading,demotion,transfer,layoff, establishes an overall goal of 20%for Minority and or termination and rates of pay or other forms of Women-Owned Business Enterprises("MWBE") compensation. participation,215%for Minority-Owned Business Enterprises("MBE")participation and 137%for (ii)The Contractor shall submit an EEO policy Women-Owned Business Enterprises("WBE") statement to the Department within seventy two participation(based on the current availability of qualified (72)hours after the date of the notice by MBEs and WBEs). Department to award the Contract to the Contractor. (2)For purposes of providing meaningful participation by MWBEs on the Contract and achieving the Contract Goals (iii)If Contractor or Subcontractor does not have established in Section 11-A hereof,Contractor should an existing EEO policy statement,the Department reference the directory of New York State Certified may provide the Contractor or Subcontractor a MWBEs found at the following internet address; model statement. This statement can be found at the link provided in Section 8. http:/hvww.esd.ny.govhnwbe.htnil (iv)The Contractor's EEO policy statement shall Additionally,the Contractor is encouraged to contact the include the following language: Division of Minority and Woman Business Development ((518)292-5250;(212)803-2414;or(716)846-8200)to a. The Contractor will not discriminate discuss additional methods of maximizing participation by against any employee or applicant for MWBEs on the Contract. employment because of race,creed, color,national origin,sex,age,disability (3)Where MWBE goals have been established herein, or marital status,will undertake or pursuant to 5 NYCRR§142.8,Contractor must document continue existing EEO programs to "good faith efforts"to provide meaningful participation by ensure that minority group members and MWBEs as subcontractors or suppliers in the performance women are afforded equal employment of the Contract. In accordance with Section 316-a of opportunities without discrimination,and Article 15-A and 5 NYCRR§142.13,the Contractor shall make and document its acknowledges that if Contractor is found to have willfully conscientious and active efforts to and intentionally failed to comply with the MWBE employ and utilize minority group participation goals set forth in the Contract,such a finding members and women in its work force. constitutes a breach of contract and the Contractor shall be liable to the Department for liquidated or other appropriate b. The Contractor shall state in all damages,as set forth herein. solicitations or advertisements for employees that,in the performance of the ( )Equal Employment contract,all qualified applicants will be qual p yment Opportunity(EEO) afforded equal employment opportunities (1)Contractor agrees to be bound by the provisions of without discrimination because of race, creed,color,national origin,sex,age, Article 15-A and the MWBE Regulations promulgated by disability or marital status. the Division of Minority and Women's Business Development of the Department of Economic Development (the"Division"). If any of these terms or provisions c. The Contractor shall request each conflict with applicable law or regulations,such laws and employer Department,labor union,or regulations shall supersede these requirements.Contractor authorized representative of workers with shall comply with the following provisions of Article 15-A: which it has a collective bargaining or other agreement or understanding,to (i)Contractor and Subcontractors shall undertake furnish a written statement that such or continue existing EEO programs to ensure that employer Department,labor union,or minority group members and women are afforded representative will not discriminate on equal employment opportunities without the basis of race creed color,national discrimination because of race,creed,color, origin;sex age,disability or marital status national origin,sex,age,.disability or marital and that such union or representative will status. For these purposes,EEO shall apply in the affirmatively cooperate in the 7 March 2013 implementation of the Contractor's (iii)In limited instances,Contractor may not obligations herein. be able to separate out the workforce utilized in the performance of the d. The Contractor will include the Contract from Contractor's and/or provisions of Subdivisions(a)through(c) subcontractor's total workforce.When a of this Subsection 4 and Paragraph"E"of separation can be made,Contractor shall this Section III,which provides for submit the Workforce Report and relevant provisions of the Human Rights indicate that the information provided Law,in every subcontract in such a related to the actual workforce utilized on manner that the requirements of the the Contract.When the workforce to be subdivisions will be binding upon each utilized on the contract cannot be subcontractor as to work in connection separated out from Contractor's and/or with the Contract. subcontractor's total workforce, Contractor shall submit the Workforce e. EEO Contract Goals for the purposes of Report and indicate that the information this procurement,the Department hereby provided is Contractor's total workforce establishes a goal of 10%Minority during the subject time frame,not limited Labor Force Participation,10%Female to work specifically under the Contract. Labor Force Participation. (2) Contractor shall comply with the provisions of the (2)Staffing Plan Form Human Rights Law,all other State and Federal statutory and constitutional non-discrimination To ensure compliance with this Section,the provisions. Contractor and subcontractors shall Contractor shall submit a staffing plan to not discriminate against any employee or applicant document the composition of the proposed for employment because of race,creed(religion), workforce to be utilized in the performance of the color,sex,national origin,sexual orientation, Contract by the specified categories listed, military status,age,disability,predisposing including ethnic background,gender,and Federal genetic characteristic,marital status or domestic occupational categories.Contractors shall violence victim status,and shall also follow the complete the Staffing plan form and submit it-as requirements of the Human Rights Law with part of their bid or proposal or within a reasonable regard to non-discrimination on the basis of prior time,but no later than the time of award of the criminal conviction and prior arrest. contract. (d)MWBE Utilization Plan (3)Workforce Employment Utilization Report Form ("Workforce Report") (1)The Contractor represents and warrants that Contractor has submitted an MWBE Utilization Plan either prior to,or (i) Once a contract has been awarded and at the time of,the execution of the contract. during the term of Contract,Contractor is responsible for updating and providing (2)Contractor agrees to use such MWBE Utilization Plan notice to the Department of any changes for the performance of MWBEs on the Contract pursuant to to the previously submitted Staffing Plan. the prescribed MWBE goals set forth in Section M-A of This information is to be submitted on a this Appendix. quarterly basis during the term of the Contract to report the actual workforce (3)Contractor further agrees that a failure to submit and/or utilized in the performance of the use such MWBE Utilization Plan shall constitute a material Contract by thespecified categories listed breach of the terms of the Contract.Upon the occurrence of including ethnic background,gender,and such a material breach,Department shall be entitled to any Federal occupational categories.The remedy provided herein,including but not limited to,a Workforce Report must be submitted to finding of Contractor non-responsiveness. report this information. (e)Waivers (ii) Separate forms shall be completed by Contractor and any subcontractor (1)For Waiver Requests Contractor should use Waiver performing work on the Contract. Request Form. g March 2013 (2)If the Contractor,after making good faith efforts,is Director of the Division of Minority and Woman Business unable to comply with MWBE goals,the Contractor may Development pursuant to Subdivision 8 of Section 313 of submit a Request for Waiver form documenting good faith the Executive Law in which event the liquidated damages efforts by the Contractor to meet such goals. If the shall be payable if Director renders a decision in favor of the documentation included with the waiver request is Department. complete,the Department shall evaluate the request and issue a written notice of acceptance or denial within twenty (h)Forms (20)days of receipt. The following forms referenced in Article XVIII 3-A-3,3B, (4)If the Department,upon review of the MWBE 3C and 5A can be found at Utilization Plan and updated Quarterly MWBE Contractor http://www.dec.nygov/aboutt48854.htlnl Compliance Reports determines that Contractor is failing or refusing to comply with the Contract goals and no waiver has been issued in regards to such non-compliance,the Department may issue a notice of deficiency to the Contractor. The Contractor must respond to the notice of deficiency within seven(7)business days of receipt. Such response may include a request for partial or total waiver of MWBE Contract Goals. (f)Quarterly MWBE Contractor Compliance Report Contractor is required to submit a Quarterly MWBE Contractor Compliance Report Form to the Department by the l Os'day following each end of quarter over the term of the Contract documenting the progress made towards achievement of the MWBE goals of the Contract. (g)Liquidated Damages-MWBE Participation (1)Where Department determines that Contractor is not in compliance with the requirements of the Contract and Contractor refuses to comply with such requirements,or if Contractor-is found to have willfully and intentionally failed to comply with the MWBE participation goals, Contractor shall be obligated to pay to the Department liquidated damages. (2)Such liquidated damages shall be calculated as an amount equaling the difference between: (i) All sums identified for payment to MWBEs had the Contractor achieved the contractual MWBE goals;and (ii) All sums actually paid to MWBEs for work performed or materials supplied under the Contract. (3)In the event a determination has been made which requires the payment of liquidated damages and such identified sums have not been withheld by the Department, Contractor shall pay such liquidated damages to the Department.within sixty(60)days after they are assessed by the Department unless prior to the expiration of such sixtieth day,the Contractor has filed a complaint with the 9 March 2013