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HomeMy WebLinkAboutNYSDEC/Landfill ClosureContract No. C300886 New York State Department of Environmental Conservation New York State Environmental Conservation Law (ECL), Article 54, Title 5, Non-Hazardous Municipal Landfill Closure Projects Contract for State Assistance Payments For Municipal Landfill Closure Projects This is a contract made under Article 54 of the Environmental Conservation Law BETWEEN The New York State Department of Environmental Conservation (Hereinafter referred to as the "Department") with offices at 625 Broadway, 9t~ Floor, Albany, NY 12233-7250 AND The Town of Sc~uthold (hereinafter referred to as the "Municipality") with offices at 53095 Main Road, Southold, NY 11971 Page 1 of 12 'RECEIVED , - 6 2003 SoUth, old Town C[ert The-Deparl, m~t ~ H ~l~hc~Mu~i~pality--agree~as~fel lows. Definitions A. Terms used in this contract have the same meaning as set forth in 6 NYCRR Part 360 and Article 54 of the ECL. In addition, the following terms in this contract have the following meanings: (1) ."Contractor" in Appendices A andB mea?s _the _Municipality; (11) "Parties" in Appendices A and B.means the Department and the Munici oality; (Ill) "Project" means the Municipal Landfill Closure Project of the Municipality; (IV) "Municipal Landfill Closure Project Work Plan" means a document which provides a schedule of completion for the (v) "Reimbursement Application Schedule" means a document which provides a schedule for reimbursement applications (See Attachment No. 2); (VI) "State Assistance" means any money provided as a reimbursement under Title 5 of Article 54'of the ECL; (vii) "Eligible Costs'; means the capital cost of a Municipal Landfill Closure Project as defined in 6 NYCRR Section 360-9.6, eligible and ineligible costs; and "Landfill Closure Site, "as defined by 6 NYCRR Part 360-9~2(B)(4)-~ ...... means the part of the disposal facility being closed under this contract. Sta~e Assistance A. The Department agrees to reimburse one half (fifty percent) of the Municipality's eligible costs for the Municipal Landfill Closure Project. The -Department's reimbursement to the Municipalit,] under this contract, however, must not exceed the sum of Eight hundred sixty-seven thousand five hundred dollars and no cents ($867,500) Only those costs incurred during the term of this contract are eligible reimbursement. The Municipality is eligible to receive a maximum of $2 million for the closure of the entire site, as defined by 6 NYCRR Part 360-1.2(B)(154), regardless of whether or not the landfill is being closed in phases. Page 3.of 12 .... BT -:--~t~e::Mur~l~ty agrees~o: _ .......... ~ (I) complete the Project in accordance with plans.and reports as approved by the Department; (Il) Perform the closure work according to the attached schedule of completion (See Attachment No, 1); (Ill) File progress reports at the intervals stipulated in the attached schedule (See Attachment No. 3); (IV) Submit to the Department alt Project changes which may substantially alter the nature or scope of the Project and affect the Municipality's ability to comply with all applicable laws and regulations; and (V) Stop receiving solid waste at the landfill closure site within 18 months following the approval date of the application for State Assistance. State Assistance payments will be made to the Municipality in installments as listed in the Reimbursement Application Schedule (See Attachment No. 2), which is attached and is part of this contract. Reimbursement claims must be made on a New York State Aid Voucher and must be accompanied with adequate documentation as outlined in Appendix C. The Department will retain ten percent (10%) of each payment made to the Municipality. The retainage (10%) is to be paid to the Municipality when the Department completes its final inspection and approves the Project as complete. If additional State Assistance monies become available for the closure of the landfill and the Municipality does not have a contract for the full amount for which it is legally entitled, then the Department may. take reasonable and appropriate action to amend the amount of State Assistance payable under this contract to the Municipality. E. If the Municipality fails to comply with the terms of this contract, or with any applicable State and Federal laws and regulations, or (I) Fails to complete the Project as planned; (ii) Fails to proceed with the Project as s~heduled; (111) Fails to file progress reports at the intervals stipulated in the attached Schedule (See Attachment No. 3); (IV) Changes the Project in any way that will substantially alter the nature ...................... or scope of the Project; or, (V) Transfers the ownership of the landfill or any portion of the landfill without advance written approval from the Depar[ment; Then the Department will notify the Municipality of such~failure. -Page4 of 12 WHEREAS, the State Legislature has determined that the existence of inadequately closed landfills is a significant threat to New York State's environment; and WHEREAS, the Department is authorized by Article 54 of the New York State Environmental Conservation 'Law to enter into contracts ~n behal[ of the_St~t~, to pro~k~eStateAssistance to Municipa~es;, and WHEREAS, the Municipality has applied for State Assistance for their Municipal Landfill Closure Project; and WHEREAS, the Municipality agrees to undertake all work and to comply with all terms and conditions of this contract; and WHEREAS, the Municipality has filed with the Department a duly adopted resolution authorizing it to make an application and to enter into and execute this contract for the purpose of receiving State Assistance; and WHEREAS, the Municipality represents that it has the legal status necessary to enter into this contract and has authorized the person signing this contract to do so, as evidenced by attached certified resolution of the Municipality's governing body; and WHEREAS, the Municipality agrees that it will fund its portion of the . ._ cost of the Municipal Landfill Closure Project; and WHEREAS, the Department's execution of this contract is made in reliance upon the information provided by, and representations of, the Municipality in its application papers and'in this contract; and WHEREAS, the Municipality has an obligation, to close its landfill under the permit condition, administrative order, or court order creating the obligation; and WHEREAS, the Municipality is compliant with and commits to continue to comply with the requirements for State Assistance to Municipalities established under Article 54 of the ECL and 6 NYCRR Subpart 360-9; NOW, THEREFORE, I~e 2 of'12 The Department and the Municipality agree as follows: Definitions A. Terms used in this contract have the same meaning as set forth in 6 NYCRR Part 360 and Article 54 of the ECL. B. In addition, the following terms in this contract have the following meanings: (I) "Contractor" in Appendices A and B means the Municipality; (11) ~Parfles" in Appendices A and B means the Department and the Municipality; (Ill) "Project" means the Municipal Landfill Closure Project of the Municipality; (IV) "Municipal Landfill Closure Project Work Plan" means a document which provides a schedule of completion for the (V) UReimbursement Application Schedule" means a document which provides a schedule for reimbursement applications (See Attachment No. 2); (VI) ~State Assistance" means any money provided as a reimbursement under Title 5 of Article 54 of the ECL; (Vii) 'Eligible Costa" means the capital cost of a Municipal Landfill Closure Project as defined in 6 NYCRR Section 360-9.6, eligible and ineligible costs; and (VIII) "Landfill Closure Site, ' as defined by 6 NYCRR Part 360-9.2(B)(4) means the part of the disposal facility being closed under this contract. 2. State Assistance The Department agrees to reimburse one half (fifty pament) of the Municipality's eligible costs for the Municipal Landfill Closure Project, The Department's reimbursement to the Municipality under this contract, however, must not exceed the sum of Eight hundred sixty-seven thousand five hundred dollars and no centa ($867,500) Only those costa incun'ed during the term of this contract are eligible reimbursement. The Municipality is eligible to receive a maximum of $2 million for the closure of the entire site, as defined by 6 NYCRR Part 360-1.2(B)(154), regardless of whether or not the landfill is being closed in phases. Page 3 of 12 B. The Municipality agrees to: (I) comptata the Project in soco~danos with plans and reports as approved by the Dep~rtment; (11) Perform the closure work according to the attached schedule of completion (See Altachment No, 1); (111) File progress reports at the intervals ~pulatad in the attached sohedule (See Altachment No. 3); (IV) Submit to the Department all Project chef,os which may subelantlelly alter the nature or scope of the Project and affect the Municipatl~s ability to comply with all applicable laws and regulations; and (V) Stop receiving solid waste at the landfill dosura site within 18 months following the approval date of the application for State Assistance. State Assistance payments will be mede to the Munici~ty in ins~allmenta as listed in the Reimbursement Application Schedule (See Attachment No. 2), which is etl~ and is part of this conlmct. Reimbumemant claims must be made on a New York State Aid Voucher and must be accompanied with adequate documentation as outlined in Appendix C. The Department will retain ten percent (10%) of each payment made to the Municipality. The retainage (10%) is to be paid to the Municipality when the Department completes its final inspection and approves the Project as complete. If additional State Assistance monies become available for the closure of the landfill and the Municipality does not have a contract for the full amount for whl(~h it is I~gally entitled, then the Def~ar'~ment may take reasonable and appropriate ac{ion to amend the amount of State Assistance payable under this contract to the Municipality. If the Municipality fails to comply with the terms of this contract, or with any applicable State and Federal laws and regulations, or (I) Fails to complete the Project as planned; (11) Fails to proceed with the Project as scheduled; (111) Fails to file progress reports at the intervals stipulated in the attached Schedule (See Attachment No. 3); (IV) Changes the Project in any way that will substantially alter the nature or scope of the Project; or, (V) Transfers the ownership of the landfill or any portion of the landfill without advance written approval from the Department; Then the Department will notify the Municipality of such failure. Page4 of 12 The Department will put the reasons for the failure determination in wdting and will allow the Municipality a period of time (to be determined by the Department and stated in the letter of failure determination) to correct the failure. The Department will withhold all future State Assistance payments under this contract until the failure has been corrected to the satisfaction of the Department. If the failure is not corrected within the time period established by the Department, then the Department wilt notify the Municipality that it is in breach of contract. If the Municipality is'in breach of contract, then the Municipality agrees to immediately repay to the Department any State Assistance monies received by the Municipality under this cont,'act, plus appropriate interest, as provided by law. If the Municipality fails to repay the State Assfstanco within 365 days of notification, the Municipality agrees that the Department may take any lawful measures relating to the recovery of unrepald State Assistance including, but not limited to, the deductiOn of monies from other State financial aid to the Municipality. 3. Municipal Cost Recovery from Other Soumes The Municipality agrees to take all reasonable steps to recover its Project costs from other soumes and to assist in its effort to recover the State's Project costs Eom other sources. B. At the Department's request, the Municipality must provide the Department with documentation of the steps taken under subparagraph A above. The estimated eligible cost of the Project, upon which State Assistance is calculated, must not include any costs which are paid or committed to the Municipality for the Municipal Landfill Closure Project from other sources. Other sources of assistance may include, but are not limited to, Federal grants, grants from municipal or development authorities and/or from private sources. In addlfien, all revenue received for alternate grading material is considered assistance and must be used to offset the total eligible cost of the Project. AJtemate grading material is defined as material, other than uncontaminated soil, that is received by the landfill, after the landfill has ceased accepting waste, for the purpose of achieving closure grades. The Municipality must provide the Department with timely notice of any costs paid or committed to the Municipality for the Municipal Landfill Closure Project from other soumes. If there are any payments made or committed to the Municipality for the Municipal Landfill Closure Project from other sources which were not included in the calculation of State Assistance, then the amount of State Assistance will be recalculated accordingly and the Municipality must repay to the S~ato the amount by which the State payment exceeds the recalculated State Assistance. Page 5 of 12 ......... tf the-MunicJpal.ity feits-te4~epay4he StateAssistaneewi~hin--368 days~f~ notification, the Municipality agrees that the Department may take any lawful measure relating to the recovery of unrepaid State Assistance including, but not limited to, the deduction of monies from other State financial aid to the Municipality. 4. Preiect Insurance The Municipality agrees that it will require each Project consultant, Project contractor and Project subcontractor to secure and deliver to the Municipality appropriate policies of insurance issued by an insurance company licensed to do business in the State. These policies must name the Municipality as an additional insured, with appropriate limits, covering contractor's public liability and property damage insurance, contractor's contingency liability insurance "all-risk" insurance and worker's compensation for the Project. The Municipality wilt req uire that copies of the applicable insurance policies be made available to the Department for review upon request. The Municipality must require each Project construction contractor and Project subcontract'or to provide specific performance and payment bonds each in amounts not less than the contractor's or subcontractor's contract price. These bonds must remain in effect for one year beyond the date of final inspection and acceptance by the Municipality of any work under such contract. The Municipality must participate in the Flood Insurance Program if any permanent construction is located in a flood hazard area delineated by the Federal Department of Housing and Urban Development. 5. Preiect Manaclement Ac The Municipality agrees that it will corn plete the Project in accordance with ........................ the Municipal Landfill Closure Project Work Plan (See Attachment No. 1), plans and specifications, and any amendments approved by the Department or approved by a court having the appropriate.jurisdiction. B. The Municipality agrees to develop and submit to the Department an approvable Project Management Plan by N/A The Project Management Plan will describe the Munisipality's Project management structure, personnel qualifications, procedures for field oversight and the specific recordkeeping, cost accounting and cost control responsibilities and procedures used to: (I) Identify all eligible and ineligible costs and segregate each category of costs in separate accounts; and to (11) maintain adequate accounting and fiscal records which show the receipt and expenditure of all monies for the Project. These records must be made available for audit by the Department and/or the State Comptroller for a period of six years after the 'final payment for this Project. Page 6 of 12 The Project Management Plan must be approved by the Department before any State Assistance payments are made to the Municipality. The Municipality will permit the Department to participate in all its meetings and conferences with respect to the Project. Upon request from the Department, the Municipality must submit to the Department reports, documents, data, contractual documents, administrative records and other information pertinent to the Project. The Municipality must get wdtten Department approval to use the Municipality's employees to perform construction, engineering, legal or other Project-related activities. The Department will approve these proposals if the Municipality can demonstrate that the Municipality's employees possess the necessary competence to perform the work in question and that the work can be more economically performed and done on a timely basis by the use of the Municipality's employees. The cost of any work performed by the Municipality's employees which does not receive written Department approval will be ineligible for reimbursement. If written Department approval is given to use the Municipality's employees for a spec4fied task or activity, the Municipality must maintain such records as the Department will require to document these costs. The Municipality must at all times provide and maintain competent and adequate resident supervision and inspection under the direction of a professional engineer licensed by the State of New York. The licensed professional engineer is responsible for ensuring that all closure work conforms to the approved plans and specifications and must certify to the Municipality and to the Department that all work was completed in accordance with Department approved plans and specifications. The Municipality agrees to advertise for and solicit Project bids within a reasonable time after receipt of the Department's approval of plans and specifications. The Municipality further agrees to award Project contracts within a reasonable time after opening the bids. G. The Municipality agrees to resolve all bid protests and to notify the Department of each bid protest and how it was resolved. The Municipality represents that it has or will obtain the title to or sufficient interest in the Project site, including rights-of-way and necessary easements, before the start of construction to ensure undisturbed use and possession for purposes of construction and completion of the Project. The Municipality agrees that it is fully responsible for the maintenance and monitoring of the Project. J4 The Municipality agrees tl~at all work performed in relation to the Project by the Municipality or its agents, representatives, or contractors will conform to applicable Federal, State and Local laws, ordinances, rules and regulations and standards. Page 7 of 12 6. Inspection The Municipality will provide the Department unrestricted access to field work dudng the preparation and progress of the Project. The Municipality will require that all contracts and subcontracts relating to the Project will contain provisions for unrestricted access and inspection by the Department, ~ Facilities by the Department or equipment purchased with State Assistance provided under this contract will, upon request, be made available for Department inspection at any reasonable time by the Municipality. The Municipality agrees to notify the Department when the Project is complete. The Department will, when the final written Project certification is received from the Municipality, conduct a final inspection to verify if the completed Project meets ail applicable laws and regulations and contract requirements. 7. Additional Obli.aations and Responsibilities of the Municipality The Municipality agrees to be in substantial compliance with its obligation to close the landfill and to waive any right to assistance under Section 27-1313 of the Environmental Conservation Law. The Municipality agrees not to construct a new landfill over the landfill closed under this contract and to monitor and maintain this closed landfill in accordance with all applicable Department regulations effective at the date of this contract. If a Municipality closes its landfill in phases, the Municipality agrees to close all subsequent phases of this facility in accordance with Department regulations for new landfills which are in effect at least six months before the subsequent phase becomes inactive. 8. Signs In recognition of the State Assistance provided under this contract for the Project, the Municipality shall ensure that any identifying signs that relate to this Project will note that portions of the Project are assisted by the State of New York. 9. No Waiver of Remedies The Municipality shall not be required to make any demand upon, pursue or exhaust any of its rights or remedies against the State. The State shall not be required to make any demand upon, pursue or exhaust any of its rights or remedies against the Municipality. A delay or. omission by the State or the Municipality in exercising any right under this contract shall not operate as a waiver of that right or any other right under this contract. A waiver on any occasion shall not be construed as a bar to or a waiver of any right and/or remedy on any other occasion. No waiver or consent is binding unless it is in writing and executed by the Department and the Municipality. Page 8 of 12 10. Appendices and Attachments Appendix A, "Standard Clauses for All New York State Contracts," and Appendix B, "Standard Clauses for All New York State Department of Environmental Conservation Contracts" are attached and made a part of-this contract. Additional attachments identified in this contract are attached and made a part of this contract. 11. Totalib,,of Contract: Separability This contract contains the provisions, conditions, and promises agreed to between the parties. If any part of this contract is held to be invalid or unenforceable, the invalidity or unenforceability of such will not affect the remainder of this contract. This contract will remain valid as if the invalid or unenforceable part had not been contained. 12. Term and Effective Date The term of this contract will be from April 1, 1993 to 12/3'1/03. This contract will be effective upon approval and filing by the State Comptroller in accordance with Section 1 12 of the State Finance Law. 13. Amendments This contract including the attached Appendices and Attachments may only be amended by a written instrument signed by both parties and approved by the State Comptroller. 14. Authorized Representative for the Department The Department's authorized representative for the implementation of this contract and for approval and direction called for in this contract is the Director of the Division of Solid & Hazardous Materials, or his designee. Whenever it is provided in this contract that notice must be given or other communications sent to the Department, the notices or communications will be delivered or sent to: New York State Department of Environmental Conservation Division of Solid & Hazardous Materials 625 Broadway - 9~' Floor Albany, New York 12233-7250 Attention: Director, Division of Solid & Hazardous Materials Page 9 of 12 15. Authorized Representative for the Municipality The Municipality authorized representative for tl~e implementation of this contract is: Joshua Y, Hot'ton Whenever it is provided in this contract tha~otice must be given or other communications sent to the Municipality, 4he notices or communications will be delivered or sent to: Municipality: Town of Southold 53095 Main Road Southold, NY 11971 Attention: Jean Cochran . Joshua Y. Hort .Supervisor 16. Affirmative Actioh The Municipality is requested to comply with the intent of the'Affirmative Action provisions contained in Executive Law, Article 15-A and ECL Sections 52-0111 and 52-0113. The Municipality is requested to include language contained in Appendix B, Clause VII in all contracts awarded for this project. Page 10 of 12 LANDFILL CLOSURE PROGRAM STATE ASSISTANCE CONTRACT SIGNATURE PAGE Municipality: Town of Southold Contract No. C300886 IN WITNESS WHEREOF the parties have hereunto by their representatives duly authorized to set their hands and seals the day and year appearing opposite their respective signatures. MUNICIPALITY SIGNATURE: By the signature hereunder, the Municipality represents that it has the legal status necessary to enter into this contract and that the person signing is authorized to do so as evidenced by the resolution of its !egisl. a~ive body attached hereto. ' : ' Authorized Representative Jocn Oochm~ Joshua Y. Horton re)~ "~' '~ (Typed Nam;) (Signatu ~,~', i,~! Dated: (Title) ~¢'Supervisor' ::;': MUNICIPALITY CERTIFICATION: State of New York ) ) SS.: County of Suffolk ) On this ~-~ Dayof f~'~/4.~ ,20~2_.¢ Joshua Y. Horton Before me personally· came J~.~n Co~, ,, a, ~ Supervisor (List Name and Title~ of the Town of Southold , (List political subdivision or agency of the political subdivision) The political subdivision or agency thereof described in and which executed The above instrument: By Authority of ~'l'Jlotg /OCO,'l (Attached certified copy of order, resolution, or the ordinance authorizing execution of this contract) of said political subdivision, and that (s)He signed his/her name by that authority. MELANIE DOROSKI .. ~ . NOTARY PUBLIC, State of Ne~/YtM{ ~ , Oualified in Suffolk C0unly I~0mmiesl0n Expires September ~,2'Lx~-- NOTARY PUBLIC Page 11 of 12 Municipality: Town of Southold Contract No. C300886 New York State Department of Environmental ConserVation Agency Certification: "In addition to the acceptance of this contract, I also certify that the original signature pages will be attached to all other exact copies of this contract." AGENCY SIGNATURE:~~'/~ Dated: Approved as to Form: AU6 23 2002 Dated: I APP~©VED ~ DEPT. OF~,UD~T& CONTROL COMPTROLLER'S SI(~NATURE: ' Dated: Page 12 of 12 Attachment No. 1 New York State Department of Environmental Conservation New York State Environmental Conservation Law (ECL), Article 54, .. , Title 5, Non,Hazardous Municipal Landfill Closure Projects Contract for State Assistance Payments For Municipal Landfill Closure Projects State Assistance Municipal Landfill Closure Program (6 NYCRR Subpart 360~9, Revised December 14, 1994 and September 29, 1997) MUNICIPAL LANDFILL CLOSURE PROJECT WORK PLAN Facility Name: Southold Landfill Facility ID #: 52S17 Facility Location: County Road 48, Cutchoeue, NY County: Suffolk Facility Owner: Town of Southold Facility Operator: Sta.qe Perform Closure Investigation Perform Closure Investigation Report BeGin Date End Date (12/94) Page 1 of 2 Municipal Landfill Closure Project Work Plan (cont'd) STAGE Prepare Closure Plan Perform Vector Remediation, if required Construct Leachate Collection System, if required Construct Gas Venting Layer and Gas Collection/Control System Construct Barrier Layer Construct Barrier Protection Layer Construct Topsoil Layer Establish Vegetative Cover Prepare Construction Certification Report BEGIN DATE 30/30/00 03/30/00 04/30/00 04/30/00 04/30/00 09/30/00 END DATE 07/30/00 07/30/00 08/24/00 08/31/00 08/31/00 11/30/00 Page 2 of 2 Attachment No. 2 New York State Department of Environmental Conservation New York State Environmental Conservation Law (ECL), Article 54, Title 5, Non-Hazardous Municipal Landfill Closure Projects Contract for State Assistance Payments for Municipal Landfill Closure Projects REIMBURSEMENT APPLICATION SCHEDULE Milestone Contract Execution Installation of Barrier Layer Submittal of Closure Certification Completion Date Date of Comptroller's Signature 07/30/00 11/30/00 Attachment No. 3 New York State Department of Environmental Conservation New York State Environmental Conservation Law (ECL), Article 54, Title 5, Non-Hazardous Municipal Landfill 'Closure Projects Contract for State Assistance Payments for Municipal Landfill Closure Projects PROGRESS REPORT SCHEDULE Milestone Contract Execution Installation of Barrier Layer Submittal of Closure Certification Completion Date Date of Comptroller's Signature 07/30/00 11/30/00 APPENDIX A STANDARD CLAUSES FOR ALL NEW YORK STATE CONTRACTS The parties to the attached contract, license, lease, amendment or other agreement of any kind (hereinafter, "the contract" or "this contract'!) agree to be bound by the following clauses which are hereby made a part of the contract (the word "Contractor" herein refers to any party other than the State, whether a contractor, licenser, licensee, lessor, lessee or any other party): 1. EXECUTORY CLAUSE. In accordance with Section 41 of the State Finance Law, the State shall have no liability under this contract to the Contractor or to anyone else beyond funds appropriated and availabte for this contract. 2. NON-ASSIGNMENT CLAUSE. In accordance with Section 138 of the State Finance Law, this contract may not be assigned by the Contractor or its right, title or interest therein assigned, transferred conveyed, sublet or otherwise disposed of without the previous consent, in writing, of the State and any attempts to assign the contract without the State's written consent are null and void. The Contractor may, however, assign its right to receive payment without the State's prior written consent unless this contract concerns Certificates of Participation pursuant to Article 5-A of the State Finance law. 3. COMPTROLLER'S APPROVAL In accordance with Section 112 of the State Finance Law (or, if this contract is with the State University or City University of New York, Section 355 or Section 6218 of the Education Law), ffthis contract exceeds $15,000 (or the minimum thresholds agreed to by the Office of the State Comptroller for certain S.U.N.Y. and C.U.N.Y. contracts), or if this is an amendment for any amount to a contract which, as so amended, exceeds said statutory amount, or if, by this contract, the State agrees to g~ve something other than money when the value or reasonably estimated value of such consideration exceeds $15,000, it shall not be valid, effective or binding upon the State until it has been approved by the State Comptroller and filed in his office. 4. WORKERS' COMPENSATION BENEFITS. In accordance with Section 142 of the State Finance Law, this contract shall be void and of no force and effect unless the Contractor shall provide and maintain coverage during the life of this contract for the benefit of such employees as are required to be covered by the provisions of the Workers' Compensation Law. 5. NON-DISCRIMINATION REOUIREMENTS. In accordance with Article 15 of the Executive Law (also known as the Human Rights Law) and ali other State and Federal statutory and constitutional non- discrimination provisions, the Contractor will not discriminate against any employee or applicant for employment becanse of race, creed, color, sex, national origin, age, disability or marital status. Furthermore, in accordance with Section 220-e of the Labor Law, if rids is a contract for the construction, alteration or repair of any public building or public work or for the manufacture, sale or distribution of materials, equipment or supplies, and to the extent that this contract shall be performed within the State of New York, Contractor agrees that neither it nor its subcontractors shall, by reason of race, creed, color, disability, sex, or national origin: (a] discriminate in hiring against any New York State citizen who is qualified and available ro perform the work; or (b) discriminate against or intim/date any employee hired for theperformance ofworkunder this contract. If this is a building service contract as defined in Section 230 of the Labor Law, then, in accordance with Section 239 thereof, Contractor agrees that neither it nor its subcontractors shall by reason of race, creed, color, national origin, age, sex, or disability: (a) discriminate in hiring aga'mst any. New York State citizen who is qualified and available to perform the work; or Co) discfim/nate against or intimidate any employee hired for the performance of work under this contract. Contractor is subject to frees of $50.00 per person per day for any violation of Section 220-e or Section 239 as well as possible termination of this contract and forfeiture of all moneys due hereunder for a second or subsequent violation. 6. WAGE AND HOURS PROVISIONS. If this is a public work contract covered by Article 8 of the Labor Law or a building service contract covered by Article 9 thereof, neither Contractor's employees nor the employees of its subcontractors may be required or permitted to work more than the number of hours or days stated in said statutes, except as otherwise provided in the Labor law and as set forth in prevailing wage and supplement schedules issued by the State Labor Department. Furthermore, Contractor and its subcontractors must pay at least the prevailing wage rate and pay or provide the prevailing supplements, including the prermum rates for overtime pay, as determined by the State Labor Department in accordance with the Labor Law. 7. NON-COLLUSIVE BIDD1NGREOUIREMENT. In accordance with Section 139-d of the State Finance Law, if this contract was awarded based upon the subruission of bids, Contractor warrants, under penalty of perjury, that its bid was arrived at independently and without collusion aimed at restricting competition. Contractor further warrants that, at the time Contractor submitted its bid, an authorized and responsible p~rson executed and delivered to the State a non-collusive bidding certification on Contractor's behalf. 8. INTERNATIONAL BOYCOTT PROHIBITION. In accordance with Section 220-fof the Labor Law and Section 139-h of the State Finance Law, if this contract exceeds $5,000, the Contractor agrees, as a material condition of the Contract, that neither the Contractor nor any substantially owned or affiliated person, fn-m, parmership or corporation has participated, is participating, or shall participate in an international boycott in violation of the federal Export Administration Act of t979 (50 USC App. Sections 240t et seq.) or regulations thereunder. If such Contractor, or any of the aforesaid affiliates of Contractor, is convicted or is otherwise found to have violated said laws or regulations upon the final determination of the United States Commerce Department or any other appropriate agency of the United States subsequent to the contractors execution, such contract, amendment or modification thereto shall be rendered forfeit and void. The Contractor shall so notify the State Comptroller within five (5) business days of such conviction, determination or disposition of appeal (2NYCRR 105.4). 9. SET-OFF RIGHTS. The State shall have all of its common law, equitable and statutory rights of set-off. These rights shall include, but not be limited to, the State's option to withhold for the purposes of set-off any moneys due to the Contractor trader this contract up to any amounts due and owing to the State with regard to this contract, any other contract with any State department or agency, including any contract for a term commencing prior to the term of this contract, plus any amounts due and owing to the State for any other reason including, without limitation, tax delinquencies, fee delinquencies or monetary penalties relative thereto. The State shall exerc/se its set-off rights in accordance with normal State practices including, in cases of set-off pursuant to an audit, the finalization of such audit, by the State agency, its representatives, or the State Comptroller. 10. RECORDS. The Contractor shall establish and maintain complete and accurate books, records, documents, accounts and other evidence directly pertinent to performance under this contract (hereinafter, collectively, "the Records"). TheRecords must be kept for the balance of the calendar year in which they were made and for six (6) additional years thereafter. The State Comptroller, the AttomeyGeneral and any other person or entity authorized to conduct an examination, as well as the agency or agencies involved in this contract, shall have access to the Records during normal business hours at an office of the Contractor' within the State of New York or, if no such office is available, at a mutually agreeable and reasonable venue within the State, for the term specified above for the purposes of inspection, auditing and copying. The State shall take reasonable steps to protect from public disclosure any of the Records which are exempt from disclosure under Section 87 of the Public Officers Law (the "Statute") provided that: (i) the Contractor shall timely inform an appropriate State official, in writing, that said records should not be disclosed; and (ii) said records shall be sufficiently identified; and (iii) designation of said records as exempt under the Statute is reasonable. Nothing contained herein shall dim/insh, or in any way adversely affect, the State's right to discovery in any pending or fature litigation. 11. IDENTIFYiNG iN'FORMATION AND PRIVACY NOTIFICATION. (a) FEDERAL EMPLOYER IDENTIFICATION NUMBER and/or FEDERAL SOCIAL SECURITY NLrMBER. All invoices or New York State standard vouchers submitted for payment for the sale of goods or services or the lease of real or personal property to a New York State agency must include the payee's identification number, i.e., the seller's or lessor's identification number. The number is either the payee's Federal employer identification number or Federal social secmity number, or both such numbers when the payee has both such numbers. Failure to include this number or numbers may delaypayment. Where the payee does not have such number or numbers, the payee, on its invoice or New York State standard voucher, must give the reason or reasons why the payee does not have such number or numbers. (B) PRIVACYNOTIFICATION. (1) The authorityto request the above personal information from a seller of goods or services or a lessor of real or personal property, and the authority to maintain such information, is found in Section 5 of the State Tax Law. Disclosure of this information by the seller or lessor to the State is mandatory. The principal purpose for which the information is collected is to enable the State to identify individuals, businesses and others who have been delinquent in filing tax returns or may have understated their tax liabilities and to generallyidentify persons affected by the taxes administered by the Commissioner of Taxation and Finance. The information will be used for tax admini.qtration purpose and for any other purpose authorized by law. (2) The personal information is requested by the purchasing unit of the agency contracting to purchase the goods or services or lease "the real or personal property covered by this contract or lease. The information is maintained in New York State's Central Accounting System by' the Director of Accounting Operations, Office of the State Comptroller, AESOB, Albany, New York 12236. 12. EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITIES AND WOMEN. In accordance with Section 312 of the Executive law, if this contract is: (i) a written agreement or purchase order insmtment, providing for a total expenditure ia excess of $25,000.00, whereby a contracting agency is committed to expend or does expend funds ia return for labor, services, supplies, equipment, materials or any combination of the foregoing, to be performed for, or rendered or furnished to the contracting agency; or (ii) a written agreement in excess ors 100,000.00 whereby a comractmg agency is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and unprovements thereon; or (iii) a written agreement in excess of $100,000.00 whereby the turner of a State assisted housing project is comuntted to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and in~rovements thereon for such project, then: (a) The Contractor will not discriminate against employees or applicants for employment because of race, creed, color, national origin, sex, age, disability or manal status, and will undertake or continue existing programs of afftrmative action to ensure that minority group members and women are afforded equal employment oppommities without discrimination. Affirmative action shall mean recruitment, employment, job assignment, promotion, upgradings, demotion, transfer, layoff, or ternUnation and rates of pay or other forms of compensation; (b) at the request of the contracting agency, the Contractor shall request each employment agency, labor union, or authorized representative of workers with which it has a collective bargaining or other agreement or understanffmg, to furnish a written statement that such employment agency, labor union or representative will not discriminate on the basis of race, creed, color, national origin, sex, age, disability or marital status and that such union or representative will affirmatively cooperate in the implementation of the conUactor's obligations herein; and (c) the Contractor shall state, ia all solicitations or advertisements for employees, that, ia the performance of the State contract, all qualified applicants will be afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability or manal status. Contractor will include the provisions of "a, "b", and "c" above, in every subcontract over $25,000.00 for the consta'uction, demolition, replacement, major repair, renovation, planning or design of real property and improvements thereon (the Work) except ~vhere the Work is for the beneficial use of the Contractor. Section 312 does not apply to: (i) work, goods or services unrelated to this contract; or (ii) employment outside New York State; or (iii) banking services, insurance policies or the sale of securities. The Sate shall consider compliance by a contractor or subcantractor with the requirements of any federal law concerning equal employment opportunity which effectuates the purpose of this section. The contracting agency shall determine whether the imposition of the requirements of the provisions hereof duplicate or conflict with any such federal law and if such duplication or conflict exists, the contracting agency shall waive the applicability of Section 312 to the extent of such duplication or conflict. Contractor will comply with all duly promulgated and laxvful rules and regulations of the Division of Minority and Women's Business Development pertaining hereto. 13. CONFLICTING TERMS. In the event of a conflict between the terms of the contract (including any and all attachments thereto and amendments thereof) and the terms of this Appendix A, the terms of this Appendix A shall control. 14. GOVERNING LAW. This contract shall be governed by the la~vs of the State of Nexv York except where the Federal supremacy clause requires otherwise. 15. LATE PAS~IENT. Timeliness ofpa~yanent and any interest to be paid to Contractor for late payment shall be governed by Article XI-A of the State Finance Law to the extent required by la~v. 16. NO ARBITRATION. Disputes involving this contract, including the breach or alleged breach thereof, may not be submitted to biadiag arbitration (except where statutorily authorized), but must, instead, be heard in a court of competent jurisdiction of the State of New York. 17. SERVICE OF PROCESS. In addition to the methods of service allowed by the State Civil Practice Law & Rules CCPLR''), Contractor hereby consents to service of process upon it by registered or certified mail, return receipt requested. Service heretmder shall be complete upon Contractor's actual receipt of process or upon the State's receipt of the return thereof by the United States Postal Service as refused or undeliverable. Contractor must promptly notify the State, in writing, of each and every change of address to xvhich service of process can be made. Service by the State to the last known address shall be sufficient. Contractor will have thirty (30) calendar days after service hereunder is complete in which to respond. 18. PROHIBITION ON PURCHASE OF TROPICAL HARDWOODS. The Contractor certifies and warrants that all wood products to be used under this contract award will be in accordance with, but not limited to, the specifications and provisions of State Finance Law §165. (Use of Tropical Hardwoods) which prohibits purchase and use of tropical hardwoods, unless specifically exempted, by the State or any governmental agency or political subdivision or public benefit corporation. Qualification for an exemption under this law will be the responsibility of the contractor to establish to meet with the approval of the State. In addition, when anyportion of this contract involving the use of woods, whether supply or installation, is to be performed by any subcontractor, the prime Contractor will indicate and certify in the submitted bid proposal that the subcontractor has been informed and is in corrrpliance with specifications and provisions regarding use of tropical hardwoods as detailed in § 165 State Finance Law. Any such use must meet with the approval of the State, otherwise, the bid may not be considered responsive. Under bidder certifications, proof of qualification for exemption will be the responsibility of the Contractor to meet with the approval of the State. 19. MACBRIDE FAIR EMPLOYMENT PRINCIPLES. In accordance with the MacBride Fair Employment Principles (Chapter 807 of the Laws of 1992), the Contractor hereby stipulates that the Contractor either (a) has no business operations in Northern Ireland, or 0o) shall take lawful steps in good faith to conduct any business operations in Northern Ireland in accordance with the MacBi-ide Fair Employment Principles (as described in Section 165 of the New York State Finance Law), and shall pennit independent monitoring of co~iipliance with such principles. 20. OMNIBUS PROCUREMENT ACT OF 1992. It is the policy of New York State to maximize opportunities for the participation of New York State business enterprises, including minority and women- owned business enterprises as bidders, subcontractors and suppliers on its procurement contracts. Infonmtion on the availability of New York State subcontractors and suppliers is available from: Department of Economic Development Division for Small Business 30 South Pearl Street Albany, New York 12245 Tel. 518-292.5220 A directory of certified minority and women-owned business enterprises is available from: Depm'tment of Economic Development Minority and Women's Business Development Division 30 South Pearl Street Albany, New York 12245 http://~w,~'.empire.state.nv.us The Omnibus Procurement Act of 1992 requires that by signing this bid proposal or contract, as applicable, Contractors certify that whenever the total bid amount is greater than $1 million: (a) The Contractor has made reasonable efforts to encourage the participation of New York State Business Enterprises as suppliers and subcontractors, /ncluding certified minority and women-owned business enterprises, on this project, and has retained the documentation of these efforts to be provided upon request to the State; (b) The Contractor has complied with the Federal Equal OpporUmity Act of 1972 (P.L. 92-261), as amended; (c) The Contractor agrees to make reasonable efforts to provide notification to New York State residents of employment oppommities on this project through hsting any such positions with the Job Service Division of the New York State Department of Labor, or providing such notification in such m~nner as is consistent with ex/sting collective bargaining contracts or agreements. The Contractor agrees to document these efforts and to provide said documentation to the State upon request; and (d) The Contractor acknowledges notice that the State may seek to obtain offset credits from foreign countries as a result of this contract and agrees to cooperate with the State in these efforts. 21. RECIPROCITY AND SANCTIONS PROVISIONS. Bidders are hereby notified that if their principal place of business is located in a state that penalizes New York State vendors, and if the goods or services they offer will be substantially produced or performed outside New York State, the Omnibus Procurement Act 1994 amendments (Chapter 684, Laws of 1994) require that they be denied contracts which they would otherwise obtain. Contact the Department of Economic Development, Division for Small Business, 30 South Pearl Street; Albany New York 12245, for a current list of states subject to this provision. Revised August 2000 APPENDD( 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 Deparauem of Environmental Conservation (hereinafter "Department"). I. Postponement, suspension, abandonment or termination by the Department. The Deparauem shall have the right to postpone, suspend, abandon or terminate this contract, and such actions shall in no event be deemed a breach of contract. In the event of any term/nation, postponement, delay, suspension or abandonment, the Contractor shall immediately stop work, take steps to incur no additional obligations, and to limit further expenditures. Within 15 days of receipt of notice, the Contractor shall deliver to the Department all data, reports, plans, or other documentation related to the performance of this contract, including but not limited to source codes and specifications, guarantees, warranties, as-built plans and shop drawings. In any of these events, the DeparUnent shall make settlement with the Contractor upon an equitable basis as determ/ned by the Depat h~tent which shall fix the value of the.work which was performed by the Contractor prior to the postponement, suspensmn, abandonment or termination ofth/s contract. This clause shall not apply to this contract if the contract contains other provisions applicable to postponement, suspension or term/nation of the contract. II. Indemnification and Holdharmless. The Contractor agrees that it will indemnify and save harmless the Department and the State of New York from and against all .losses from claims, demands, payments, suits, actions, recoveries and judgments of every nature and description brought or recovered against it by reason of any omission or tortious act of the Contractor, its agents, employees, suppliers or subcontractors in the performance of this contract. The Department and the State of New York may retain such monies from the amount due Contractor as may be necessary to satisfy any claim for damages, costs and the like, which is asserted against the Department and/or the State of New York. III. Conflict of Interest (a) Or~anizationai Conflict of Interest. To the best of the Contractor's knowledge and belief, the Contractor warrants that there are no relevant facts or circumstances which could g~ve rise to an organizational conflict of interest, as herein def'med, or that the Contractor has disclosed alt such relevant information to the Department. (1) .4m organizational conflict of interest exists when the nature of the work to be performed under this contract may, without some restriction on furore activities, impair or appear to impair the Contractor's objectivity in performing the work for the Deparunent. (2) The Contractor agrees that if an actual, or potential organizational conflict of interest is discovered at any t/me after award, whether before or during performance, the Contractor will immediately make a full disclosure in writing to the Deparrmem. This disclosure shall include a description of actions which the Contractor has taken or proposes to take, after consultation with the Department, to avoid, mitigate, or mi~fnnize the actual or potential conflict. (3) To the extent that the work under thi~ contract requires access to personal, proprietary or confidential business or financial data of persons or other companies, and as long as such data remains proprietary or confidential, the Contractor shall protect such data from unauthorized use and disclosure and agrees not to use it to compete with such companies. (b) Personal Conflict of Interest. The following provisions with regard to management or professional level employee personnel performing under this contract shall apply until the earlier of the teimination date of the affected employee(s) or the duration of the contract. (1) A personal conflict of interest is defined as a relationship of an employee, subcontractor employee, or consultant with an entity that may impair or appear to impair the objectivity of the employee, subcontractor employee, or consultant in performing the contract work. The Contractor agrees tO notify the Department immediately of any actual, or potential personal conflict of interest with regard to any sucli person working on or having access to information regarding this contract, as soon as Contractor becomes aware of App. B 4/17/00 Page 1 such conflict. The Department will notify the Contractor of the appropriate action to be taken. (2) The Contractor agrees to advise all management or professional level employees involved in the work of this contract, that they must report any personal conflicts of interest to the Contractor. The Contractor must then advise the DeparUnent winch will advise the Contractor of the appropriate action to be taken. (3) Unless waived by the Department, the Contractor shall certify annually that, to the best of the Contractor's knowledge and belief, all actual, apparent or potential conflicts of interest, both personal and organizational, as del'reed herein, have been reported to the Deparanent. Such certification must be signed by a senior executive of the Contractor and submitted in accordance with instructions provided by the Department. Along with the annual certification, the Contractor shall also submit an update of any changes in any conflict of interest plan submitted with its proposal for this contract. The initial certification shall cover the one-year period from the date of contract award, and all subsequent certifications shall cover successive annual periods thereafter. The certification is to be submitted no later than 45 days afier the close of the previous certification period covered. (4) In performing this contract, the Contractor recognizes that its employees may have access to data, either provided by the Department or first generated during contract performance, of a sensitive nature which shonld not be released without Department approval. If this situation occurs, the Contractor agrees to obtain confidentiality agreements from all affected employees working on requirements under this contract including subcontractors and consultants. Such agreements shall contain provisions which stipulate that each employee agrees not to disclose, either in whole or in part, to any entity external to the Deparmaent, Department of Health or the New York State Department of Law, any information or data provided by the Department or fast generated by the Contractor under this contract, any site-specific cost information, or any enforcement strategy without first obtaining the written permission of the Department. Ifa Contractor, through an employee or otherwise, is subpoenaed to testify or produce documents, winch could result in such disclosure, the Contractor must provide mediate advance notification to the Depamnent so that the Department can authorize such disclosure or have the oppommity to take action to prevent such disclosure. Such agreements shall be effective for the life of the contract and for a period of five (5) years after completion of the contract. (c) Remedies. The Depamrtent may terminate this contract in whole or in part, if it deems such termination necessary to avoid an organiTational or personal conflict of interest, or an unauthorized disclosure of information. If the Contractor fails to make required disclosures or misrepresents relevant information to the Department, the Department may terminate the contract, or pursue such other remedies as may be permitted by the terms of Clause I of this Appendix or other applicable provisions of this contract regarcYmg termination. (d) The Contractor will be ineligible to make a proposal or bid on a contract for which the Contractor has developed the statement of work or the solicitation package (e) The Contractor agrees to insert in each subcontract or consultant agreement placed hereunder (except for subcontracts or consultant agreements for well drilling, fence erecting, plumbing, utility hookups, security guard services, or electrical services) provisions which shall conform substantially to the language of this clause, including this paragraph (e), unless otherwise authorized by the Department. If this is a contract for work related to action at an inactive hazardous waste site, the following paragraph shall apply to those Contractors whose work requires the application of professional judgment: It does not apply to construction contracts. (f) Due to the scope and nature of this contract, the Contractor shall observe the following restrictions on future hazardous waste site contracting for the duration of the contract. (I) The Contractor, during the life of the work assignment and for a period of three (3) years after the completion of the work assignment, agrees not to enter into a contract with or to represent any party with respect to any work relating to remedial activities or work pertaining to a site where the Contractor previously performed work for the Department under this contract without the prior written approval of the Department. (2) The Contractor agrees in advance that if any bids/proposals are submitted for any work for a third party that would require written approval of the Deparm~ent prior to entering into a contract because of the restrictions of this clause, then the bids/proposals are submitted at the Contractors own risk, and no claim shall be made against the Department to recover App. B 4/17/00 Pa~e 2 bid/proposal costs as a direct cost whether the request for authorization to enter into the contract is denied or approved. IV. Requests for Payment. All requests £or payment by the Contractor must be submitted on forms supplied and approved by the Department. Each payment request must contain such items of information and supporting documentation as are required by the Department, and shall be all-inclusive for the period of time covered by the payment request. V. Compliance with Federal requirements. To the extent that Federal funds are provided to the Contractor or used in paying the Contractor under this contract, the Contractor agrees that it will comply with all applicable Federal taws and regulations, including but net limited to those laws and regulations under which the Federal funds were author/zed. The Contractor further agrees to insert in any subcontract hereunder, provisions which shall conform substantially to the language of this clause. VI. Independent Contractor. The Contractor shall have the status of an independent contractor. Accordingly, the Contractor agrees that it will conduct itself in a manner consistent with such status, and that it will neither hold itself out as, nor claim to be~ an officer or employee 0fthe Depamnent by reason of this contract. It further agrees that it will not make any claim, demand or application to the Department for any right or privilege applicable to an officer or employee of the Department, including but not lira/ted to workers compensation coverage, unemployment insurance benefits, social security coverage, or retirement membership or credit. VII. Article 15-A Requirements. The terms contained in this clause shall have the definitions as given in, and shall be construed according to the intent of Article 15-A of the Executive Law, 5 NYCRR Part 140, et. seq., Article 52 of the Environmental Conservation Law and 6 NYCRR Part 615, et. seq., as applicable, and any goals established by this clause are subject to the intent of such laws and regulations. (a) If the maximum contract price herein equals or exceeds $25,000, and this contract is for labor, services, supplies, equipment, or materials; or (b) If the maximum contract price herein equals or exceeds $ I00,000 and this contract is for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon; then App. B 4/17/00 Pa~e (c) The affmuative action provisions and equal employment opportunity provisions contained in this paragraph and paragraphs (d) and (e) of this clause shall be applicable within the limitations established by Executive Law § §312 and 313 and the applicable regulations. (1) The Contractor is requfi:ed to make good faith efforts to subcontract at least 6% of the dollar value of this contract to Minority Owned Business Enterprises (MBEs) and at least 6% of such value to Women Owned Business Enterprises (WBEs). (2) The Contractor is requ/red to make good faith efforts to employ or contractually require any Subcontractor with whom it contracts to make good fa/th efforts to employ minority group members for at least 10% of, and women for at least 10% of, the workforce hours required to perform the work under th/s contract. (3) The Contractor is required to make good faith efforts to solicit the meaningful participation by enterpr/ses identified in the NYS Directory of Cert/fied Businesses provided by: Empire State Development Corp.. Div. Minority & Women's Business Development 30 South Pearl Street Albany, New York 12245 Phone: (518) 292-5250 Fax: (518) 292-5803 and Emp/re State Development Corp. 633 Third Avenue New York, NY 10017 Phone: (212) 803-2414 Fax: (212) 803-3223 interact: www. empire.state.ny.ns\esd.htm (d) The Contractor agrees to include the provisions set forth in paragraphs (a), CO) and (c) above and paragraphs (a), Co), and (c) of clause 12 of Appendix A in every subcontract in such a manner that the provisions will be binding upon each Subcontractor as to work under such subcontract. For the purpose of th/s paragraph, a "subcontract" shall mean an agreement providing for a total expenditure in excess of $25,000 for the construction, demohtion, replacement, major repair, renovation, planning or design of real property and improvements thereon in which a portion of the Contractor's obligation under a State contract is undertaken or assumed. (e) The Contractor is required to make good faith efforts to utilize the MBE/WBEs identified in the utilization plan to the extent indicated in such plan, and otherwise to implement it according to its terms. The Contractor is requested to report on such M~plementation periodically as provided by the contract, or annually, whichever is more frequent. VIII. Compliance with applicable laws (a) Prior to the commencement of any work under this contract, the Contractor is required to meet ail legal requirements necessary in the performance of the contract. This includes but is not limited to compliance with all applicable Federal, state and local laws and regulations promulgated thereunder. It is the Contractors responsibility to obtain any necessary permits, or other authorizations. By signing this contract, the Contractor affmnatively represents that it has complied with said laws, unless it advises the Department otherwise, in writing. The Department signs this contract in reliance upon this representation. Co) During the term of this contract, and any extensions thereof, the Contractor must remain in compliance with said laws. A failure to notify the Department of noncompliance of which the Contractor was or should have been aware, may be considered a material breach of this contract[ IX. Dispute Resolution. The parties agree to the following steps, or as many as are necessary to resolve disputes between the Depamnent and the Contractor. (a) The Contractor specifically agrees to submit, in the first instance, any dispute relating to this contract to the designated individual, who shall render a written decision and furnish a copy thereof to the Contractor. (1) The Contractor must request such decision in writing no more than fifteen days after it knew or should have known of the facts which are the basis of the dispute. (2) The decision of the designated individual shall be the final agency determination, unless the Contractor files a written appeal of that decision with the designated appeal individual ("DAr') within twenty days of receipt of that decision. (b) Upon receipt of the written appeal, the DAI, will review the record and decision. Following divisional procedures/n effect at that time, the DAI will take one of the following actions, with written notice to the Contractor. App. B 4/17/00 Page 4 (I) Remand the matter to the program staff for further negotiation or information if it is determined that the matter is not ripe for review; or (2) Determine that there is no need for further action, and that the determination of the designated individual is confirmed; or (3) Make a determination on the record as it exists. (c) The decision of the DAI shall be the final agency decision unless the Contractor files a written appeal of that decision with the Chair of the Contract Review Committee ("CRC") within twenty days of receipt of that decision. The designated indMdual to hear disputes is: Mr. David A. Blackman, Director Bureau of Program Management Division of Solid & Hazardous Materials 625 Broadway - 9t~ Floor, Albany, NY 12233-7250 (518) 402-8711 The designated appeal individual to review decisions is: Mr. David O'Toole, Assistant Director Division of Solid & Hazardous Materials 625 Broadway - 9th Floor, Albany, NY 12233-7250 (518) 402-8652 The Chair of the Contract Review Committee is: DeparCnent of Environmental Conservation Richard K. Randles, Chak Contract Review Committee 625 Broadway - 10m Floor Albany, NY 12233-5010 Telephone: (518) 402-9237 (d) Upon receipt of the written appeal, the Chair of ' the CRC, in consultation with the members of the CRC and the Office of General Counsel, will take one of the following actions, or a combination thereof, with written notice to the Contractor. (1) Remand the matter to program staff for additional fact finding, negotiation, or other appropriate action; or (2) Adopt the decision of the DAI; or (3) Consider the matter for review by the CRC in accordance with its procedures. (e) Following a decision to proceed pursuant to (d) 3, above, the Chair of the CRC shall convene a proceeding in accordance with the CRC's established contract dispute resolution guidelines. The proceeffmg will provide the Contractor with an oppormmty to be heard. (f) Following a decision pursuant to (d) 2 or (d) 3, the CRC shall make a written recommendation to the Assistant Commissioner for Administration who shall render the final agency determination. (g) At any time during the dispute resolution process, and upon mutual agreement of the parties, the Office of Hearings and Mediation Services (OHMS) may be requested to provide mediation services or other appropriate means to assist in resolving the dispute. Any findings or recommendations made by the OHMS will not be binding on either party. (h) Final agency determmatious shall be subject to review only pursuant to Article 78 of the Civil Practice Laxv and Rules. (i) Pending final determination ora dispute hereunder, the Contractor shall proceed diligently with the performance of the Contract in accordance with the decision of the designated individual. Nothing in this Contract shall be construed as making f'mal the decision of any administrative officer upon a question of law. (j) (1) Notwithstanding the foregoing, at the option of the Contractor, the following shall be subject to review by the CRC: Disputes arising under Article 15-A of the Executive Law (lvlinority and Women Owned Business participation), the Department's determination with respect to the adequacy of the Contractor's Utilization Plan, or the Contractors showing of good faith efforts to comply therewith. A request for a review before the CRC should be made, in writing, within twenty days of receipt of the Department's determination. (2) The CRC xvill promptly convene a review in accordance with Article 15-A of the Executive Law and the regulations promulgated thereunder. X. Labor Law Provisions (a) When applicable, the Contractor shall post, in a location designated by the Deparanent, a copy of the New York State Department of Labor schedules of prevailing wages and supplements for this project, a copy of all re-determinations of such schedules for the project, the Workers' Compensation Law Section 51 notice, all other notices required by law to be posted at the site, the Depamnent of Labor notice that this project is a public work project on which each worker is entitled to receive the prevailing wages and supplements for their occupation, and all other notices which the Deparmaent directs the Contractor to post. The Contractor shall provide a surface for such notices which is satisfactory to the Department. The Contractor shall maintain such notices in a legible manner and shall replace any notice or schedule which is damaged, defaced, illegible or removed for any reason. Contractor shall post such notices before commencing any work on the site and shall maintain such notices until all work on the site is complete. (b) When appropriate, contractor shall distribute to each worker for this Contract a notice, in a form provided by the Department, that this project is a public work project on which each worker is entitled to receive the prevailing wage and supplements for the occupation at which he or she is working. Worker includes employees of Contractor and all Subcontractors and all employees of suppliers entering the site. Such notice shall be distributed to each worker before they start performing any work of this contract At the time of distribution, Contractor shall have each worker sign a statement, in a form provided by the Department, certit~dng that the worker has received the notice required by this section, which signed statement shall be maintained with the payroll records required by the following paragraph (c). (c) Contractor shall maintain on the site the original certtfied payrolls or certified transcripts thereof which Contractor and all of its Subcontractors are required to rna'retain pursuant to the New York Labor Law Section 220. Contractor shall maintain with the payrolls or tmuscripts thereof, the statements signed by each worker pursuant to paragraph (b). (d) Within thir~ days of issuance of the first payroll, and every thirty days thereafter, the Contractor and every subcontractor must submit a transcript of the original payroll to the Department, which transcript must be subscribed and affm~ned as hue under penalty of perjury. XI. Offset. In accordance with State Law, the Department has the authority to administratively offset any monies due it from the Contractor, from payments due to the Con~xactor under this contract. The Department may also (a) assess interest or late payment charges, and collection fees, if applicable; (b) charge a fee for any dishonored check; (c) refuse to renew certain licenses and permits. XII. Tax Exemption. Pursuant to Tax Law Section App. B 4/17/00 Page 5 1116, the State is exempt from sales and use taxes. A standard state voucher is sufficient evidence thereof. For Federal excise taxes, New York's registration Number 14740026K covers tax-free transactions under the Internal Revenue Code. XIII. Litigation Support. In the event that the Department becomes involved in litigation related to the subject matter of this contract, the Contractor agrees to provide background support and other litigation support, including but not limited to depositions, appearances, and testimony. Compensation will be negotiated and based on rates established in the contract, or as may otherwise be provided in the contract. XIV~ Equipment. Any equipment purchased with funds provided under this contract, shall remain the property of the Department, unless otherwise provided in the contract. The Contractor shall be liable for all costs for maintain/ng the property in good, usable condition. It shall be returned to ihe Department upon completion of the contract, in such condition, unless the Deparmaent elects to sell the equipment to the Contractor, upon mutually agreeable terms. XV. Inventions or Discoveries. Any invention or discovery £ncst made in performance of this Contract shall be the property of the Department, unless otherwise provided in the contract. The Contractor agrees to provide the Department with uny and all materials related to this property. At the Department's option, the Contractor may be grunted a non-exclusive license. XVI. Patent und CoPyright Protection. If any patented or copyrighted material is involved in or results from the performance of this Contract, this Article shall apply. (a) The Contractor shall, at its expense, defend uny suit instituted against the Department and indemnify the Department against uny award of damages and costs made against the Department by a final judgment ora court of last resort based on the claim that any of the products, services or consumable supplies furnished by the Contractor under this Contract infringes any patent, copyright or other proprietary right; provided the Department gives the Contractor: (1) prompt written notice of any action, cla'mn or threat of infringement suit, or other suit, and (2) the opportunity to take over, settle or defend such action at the Contractor's sole expense, and App. B 4/17/00 Page 6 (3) all available information, assistance and authority necessary to the action, at the Contractor's sole expense. The Contractor shall control the defense of uny such suit, including appeals, and all negotiations to effect settlement, but shall keep the Department fully informed concerning the progress of the litigation. (b) If the use of any item(s) or parts thereof is held to infringe a patent or copyright and its use is enjoined, or Contractor believes it will be enjoined, the Contractor shall have the right, at its election and expense to take action in the following order of precedence: (1) procure for the Department the right to continue using the same item or parts thereof; (2) modify the same so that it becomes non-infringing und of at least the same quality and performance; (3) replace the item(s) or parts thereof with noninfiiuging items of at least the same quality and performance; (4) if nune of the above remedies are available, discontinue its use and eliminate uny furore charges or royalties pertaining thereto. The Contractor will buy back the infringing product(s) at the State's book value, or in the event of a lease, the parties shall terminate the leasei If discontinuation or elimination results in the Contractor not being able to perform the Contract, the Contract shall be terminated. (c) In the event that an action at law or in equity is commenced against the Department arising out of a claim that the Department's use of uny item or material pursuant to or resulting from this Contract infringes uny patent, copyright or proprietary fight, and such action is forwarded by the Depm anent to the Contractor for defense und indemuification pursuunt to this Article, the Depamnent shall copy all pleadings and documents forwarded to the Contractor together with the forwarding correspondence and a copy of this Contract to the Office of the Attorney General of the State of New York. If upon receipt of such request for defense, or at any time thereafter, the Contractor is of the opinion that the allegations in such action, in whole orin part, are not covered bythe indemnification set forth in this Article, the Contractor shall immediately · notify the Department and the Office of the Attorney General of the State of New York in writing and shall ' specify to what extent the Contractor believes it is und is not obligated to defend and indemnify under the terms and conditions of this Contract. The Contractor shall in such event protect the interests of the Department and State of New York and secure a continuance to permit the State of New York to appear and defend its interests in cooperation with Contractor as is appropriate, including any judsdictional defenses which the Department and State shall have. (d) The Contractor shall, however, have no liabihty to the Department under this Article if any infringement is based upon or arises out of: (1) compliance with designs, plans, or specifications furnished by or on behalf of the Department as to the items; (2) alterations of the items by the Department; (3) failure of the Department to use updated items provided by the Contractor for avoiding infringement; (4) use of items in comb/nat/on with apparatus or devices not delivered by the Contractor; (5) use of items in a manner for which the same were neither designed nor contemplated; or (6) a patent or copyright in which the Department or any affiliate or subsidiary of the Depart~nent has any direct or indirect interest by license or otherwise. (e) The foregoing states the Contractors entire liability for, or resulting fi:om, patent or copyright infringement or clakn thereof. XVII. Force Majeure. The term Force Majeure shall include acts of God, work stoppages due to labor disputes or strikes, ftres, explosions, epidemics, dots, war rebellion, sabotage or the like. If a failure of or delay in performance by either p,a~ results from the occurrence of a Fome Majeure event, the delay shall be excused and the time for performance extended by a period equivalent to the time lost because of the Force majeure event, if and to the extent that: (a) The delay or failure was beyond the control of the party affected and not due to its fault or negligence; and Co) The delay or failure was not extended because of the affected party's failure to .use all reasonable diligence to overcome the obstacle or to resume performance immediately after such obStacle was overcome; and (c) The affected party provides notice with/n (5) days of the onset of the event, that it is invoking the protection of this provision. XVIII. Freedom of Information Requests. The · : Contractor agrees to provide the Department with any records which must be released in order to comply with a request pursuant to the Freedom of Information Law. The Department will provide the contractor with an ~pp. B 4/17/00 Page opportunity to identify material which'may be protected from release and to support its position. XIX. Precedence. In the event of a conflict between the teTM of this Appendix B and the terms of the Contract (including any and all attachments thereto and amendments thereof, but not including Appendix A), the terms of tiffs Appendix B shall control. In the event ora conflict between the terms of this Appendix B, and the terms of Appendix A, the terms of Appendix A shall control. Title 5, Non-Hazardous Municipal Landfill Closure Projects Contract for State Assistance Payments For Municipal Landfill Closure Projects APPENDIX C Documentation for Reimbursement Claims Made on State Aid Voucher The Municipality must submit the following documentation to the Department in support of reimbursement claims: 1) A summary showing one hundred percent (100%) of the costs claimed by major category (e.g., salades and wage supplies, equipment) should appear in the Description of Charges section of the State Aid Vouchers; 2) For salaries and wages (personal services), schedule should be attached showing the employees' names, titles, period covered, hours worked, rates and amounts supporting the total shown on the State Aid Voucher; 3) For other than salaries and wages, schedules of source documents (voucher and/or check number) should be attached showing the payees, brief description of goods or services provided, and amount by category as shown on the State Aid Voucher; 4) A copy of any sub-contracts into which the grantee entered under the project must accompany the first claim which includes payments under the sub- contract(s) in question. Copies of major change orders must be similarly provided; and 5) Copies of grantee vouchers and/or canceled checks covering payments on sub-contracts must be provided to support the amount of contractual services included on the State Aid Vouchers. 6) The following sentence should be typed in the lower left corner of the Description of Charges Section of the State Aid Vouchers: The payee additionally certifies that the procurement of any goods and services for which reimbursement is claimed was, to the extent applicable, accomplished in accordance with the provisions of General Municipal Law and in accordance with all other laws, rules and regulations governing procurement by the payee.