Appendix A, C, C-1, C-2 and C-AI.pdf

June 2023

APPENDIX A

STANDARD CLAUSES FOR NEW YORK STATE CONTRACTS

PLEASE RETAIN THIS DOCUMENT

FOR FUTURE REFERENCE.

STANDARD CLAUSES FOR NYS CONTRACTS APPENDIX A

Page 2 June 2023

TABLE OF CONTENTS

Page

1. Executory Clause 3

2. Non-Assignment Clause 3

3. Comptroller’s Approval 3

4. Workers’ Compensation Benefits 3

5. Non-Discrimination Requirements 3

6. Wage and Hours Provisions 3-4

7. Non-Collusive Bidding Certification 4

8. International Boycott Prohibition 4

9. Set-Off Rights 4

10. Records 4

11. Identifying Information and Privacy Notification 4

12. Equal Employment Opportunities For Minorities and Women 5

13. Conflicting Terms 5

14. Governing Law 5

15. Late Payment 5

16. No Arbitration 5

17. Service of Process 5

18. Prohibition on Purchase of Tropical Hardwoods 5-6

19. MacBride Fair Employment Principles 6

20. Omnibus Procurement Act of 1992 6

21. Reciprocity and Sanctions Provisions 6

22. Compliance with Breach Notification and Data Security Laws 6

23. Compliance with Consultant Disclosure Law 6

24. Procurement Lobbying 7

25. Certification of Registration to Collect Sales and Compensating Use Tax by Certain 7

State Contractors, Affiliates and Subcontractors

26. Iran Divestment Act 7

27. Admissibility of Contract 7

Page 3 June 2023

STANDARD CLAUSES FOR NYS 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 available for this contract.

2. NON-ASSIGNMENT CLAUSE. In accordance with

Section 138 of the State Finance Law, this contract may not be assigned by the Contractor or its right, title or interest therein assigned, transferred, conveyed, sublet or otherwise disposed of without the State’s previous written consent, and attempts to do so are null and void. Notwithstanding the foregoing, such prior written consent of an assignment of a contract let pursuant to

Article XI of the State Finance Law may be waived at the discretion of the contracting agency and with the concurrence of the State Comptroller where the original contract was subject to the State Comptroller’s approval, where the assignment is due to a reorganization, merger or consolidation of the

Contractor’s business entity or enterprise. The State retains its right to approve an assignment and to require that any

Contractor demonstrate its responsibility to do business with the State. The Contractor may, however, assign its right to receive payments 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, if this contract exceeds

$50,000 (or $75,000 for State University of New York or City

University of New York contracts for goods, services, construction and printing, and $150,000 for State University

Health Care Facilities) or if this is an amendment for any amount to a contract which, as so amended, exceeds said statutory amount, or if, by this contract, the State agrees to give something other than money when the value or reasonably estimated value of such consideration exceeds $25,000, 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.

Comptroller’s approval of contracts let by the Office of General

Services, either for itself or its customer agencies by the Office of General Services Business Services Center, is required when such contracts exceed $85,000. Comptroller’s approval of contracts established as centralized contracts through the Office of General Services is required when such contracts exceed

$125,000, and when a purchase order or other procurement transaction issued under such centralized contract exceeds

$200,000.

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 REQUIREMENTS. To the extent required by Article 15 of the Executive Law (also known as the Human Rights Law) and all other State and Federal statutory and constitutional non-discrimination provisions, the

Contractor will not discriminate against any employee or applicant for employment, nor subject any individual to harassment, because of age, race, creed, color, national origin, citizenship or immigration status, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status or because the individual has opposed any practices forbidden under the

Human Rights Law or has filed a complaint, testified, or assisted in any proceeding under the Human Rights Law.

Furthermore, in accordance with Section 220-e of the Labor

Law, if this is a contract for the construction, alteration or repair of any public building or public work or for the manufacture, sale or distribution of materials, equipment or supplies, and to the extent that this contract shall be performed within the State of New York, Contractor agrees that neither it nor its subcontractors shall, by reason of race, creed, color, disability, sex, or national origin: (a) discriminate in hiring against any

New York State citizen who is qualified and available to perform the work; or (b) discriminate against or intimidate any employee hired for the performance of work under this contract.

If this is a building service contract as defined in Section 230 of the Labor Law, then, in accordance with Section 239 thereof, Contractor agrees that neither it nor its subcontractors shall by reason of race, creed, color, national origin, age, sex or disability: (a) discriminate in hiring against any New York

State citizen who is qualified and available to perform the work;

or (b) discriminate against or intimidate any employee hired for the performance of work under this contract. Contractor is subject to fines of $50.00 per person per day for any violation of Section 220-e or Section 239 as well as possible termination of this contract and forfeiture of all moneys due hereunder for a second or subsequent violation.

6. WAGE AND HOURS PROVISIONS. If this is a public work contract covered by Article 8 of the Labor Law or a building service contract covered by Article 9 thereof, neither

Contractor’s employees nor the employees of its subcontractors may be required or permitted to work more than the number of hours or days stated in said statutes, except as otherwise provided in the Labor Law and as set forth in prevailing wage and supplement schedules issued by the State Labor

Department. Furthermore, Contractor and its subcontractors must pay at least the prevailing wage rate and pay or provide the prevailing supplements, including the premium rates for overtime pay, as determined by the State Labor Department in

Page 4 June 2023 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 understands and agrees that the filing of payrolls in a manner consistent with Subdivision 3-a of Section 220 of the Labor Law shall be a condition precedent to payment by the State of any State approved sums due and owing for work done upon the project.

7. NON-COLLUSIVE BIDDING CERTIFICATION. In accordance with Section 139-d of the State Finance Law, if this contract was awarded based upon the submission of bids, Contractor affirms, under penalty of perjury, that its bid was arrived at independently and without collusion aimed at restricting competition. Contractor further affirms that, at the time Contractor submitted its bid, an authorized and responsible person executed and delivered to the State a non-collusive bidding certification on Contractor’s behalf.

8. INTERNATIONAL BOYCOTT PROHIBITION. In accordance with Section 220-f of the Labor Law and Section

139-h of the State Finance Law, if this contract exceeds $5,000, the Contractor agrees, as a material condition of the contract, that neither the Contractor nor any substantially owned or affiliated person, firm, partnership or corporation has participated, is participating, or shall participate in an international boycott in violation of the federal Export

Administration Act of 1979 (50 USC App. Sections 2401 et seq.) or regulations thereunder. 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 contract’s execution, such contract, amendment or modification thereto shall be rendered forfeit and void. The Contractor shall so notify the State Comptroller within five (5) business days of such conviction, determination or disposition of appeal (2 NYCRR § 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 under this contract up to any amounts due and owing to the State with regard to this contract, any other contract with any State department or 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 exercise 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”). The Records must be kept for the balance of the calendar year in which they were made and for six (6) additional years thereafter. The State

Comptroller, the Attorney General and any other person or entity authorized to conduct an examination, as well as the agency or agencies involved in this contract, shall have access to the Records during normal business hours at an office of the

Contractor 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 diminish, or in any way adversely affect, the State’s right to discovery in any pending or future litigation.

11. IDENTIFYING INFORMATION AND PRIVACY

NOTIFICATION. (a) Identification Number(s). Every invoice or New York State Claim for Payment submitted to a

New York State agency by a payee, for payment for the sale of goods or services or for transactions (e.g., leases, easements, licenses, etc.) related to real or personal property must include the payee’s identification number. The number is any or all of the following: (i) the payee’s Federal employer identification number, (ii) the payee’s Federal social security number, and/or

(iii) the payee’s Vendor Identification Number assigned by the

Statewide Financial System. Failure to include such number or numbers may delay payment. Where the payee does not have such number or numbers, the payee, on its invoice or Claim for

Payment, must give the reason or reasons why the payee does not have such number or numbers.

(b) Privacy Notification. (1) The authority to 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 generally identify persons affected by the taxes administered by the Commissioner of Taxation and Finance. The information will be used for tax administration purposes and for any other purpose authorized by law. (2) The personal information is requested by the purchasing unit of the agency contracting to purchase the goods or services or lease the real or personal property covered by this contract or lease. The information is maintained in the Statewide Financial System by the Vendor

Management Unit within the Bureau of State Expenditures, Office of the State Comptroller, 110 State Street, Albany, New

York 12236.

Page 5 June 2023

12. EQUAL EMPLOYMENT OPPORTUNITIES FOR

MINORITIES AND WOMEN. In accordance with Section

312 of the Executive Law and 5 NYCRR Part 143, if this contract is: (i) a written agreement or purchase order instrument, providing for a total expenditure in excess of

$25,000.00, whereby a contracting agency is committed to expend or does expend funds in 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 of

$100,000.00 whereby a contracting agency is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon; or (iii) a written agreement in excess of $100,000.00 whereby the owner of a State assisted housing project is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon for such project, then the following shall apply and by signing this agreement the Contractor certifies and affirms that it is Contractor’s equal employment opportunity policy that:

(a) The Contractor will not discriminate against employees or applicants for employment because of race, creed, color, national origin, sex, age, disability or marital status, shall make and document its conscientious and active efforts to employ and utilize minority group members and women in its work force on State contracts and will undertake or continue existing programs of affirmative action to ensure that minority group members and women are afforded equal employment opportunities without discrimination. Affirmative action shall mean recruitment, employment, job assignment, promotion, upgradings, demotion, transfer, layoff, or termination 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 understanding, to furnish a written statement that such employment agency, labor union or representative will not discriminate on the basis of race, creed, color, national origin, sex, age, disability or marital status and that such union or representative will affirmatively cooperate in the implementation of the Contractor’s obligations herein; and

(c) the Contractor shall state, in all solicitations or advertisements for employees, that, in 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 marital status.

Contractor will include the provisions of “(a), (b) and (c)” above, in every subcontract over $25,000.00 for the construction, demolition, replacement, major repair, renovation, planning or design of real property and improvements thereon (the “Work”) except where the Work is for the beneficial use of the Contractor. Section 312 does not apply to: (i) work, goods or services unrelated to this contract;

or (ii) employment outside New York State. The State shall consider compliance by a contractor or subcontractor with the requirements of any federal law concerning equal employment opportunity which effectuates the purpose of this clause. 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 lawful rules and regulations of the Department of Economic

Development’s 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 laws of the State of New York except where the Federal supremacy clause requires otherwise.

15. LATE PAYMENT. Timeliness of payment and any interest to be paid to Contractor for late payment shall be governed by Article 11-A of the State Finance Law to the extent required by law.

16. NO ARBITRATION. Disputes involving this contract, including the breach or alleged breach thereof, may not be submitted to binding arbitration (except where statutorily authorized), but must, instead, be heard in a court of competent jurisdiction of the State of New York.

17. SERVICE OF PROCESS. In addition to the methods of service allowed by the State Civil Practice Law & Rules

(“CPLR”), Contractor hereby consents to service of process upon it by registered or certified mail, return receipt requested.

Service hereunder shall be complete upon Contractor’s actual receipt of process or upon the State’s receipt of the return thereof by the United States Postal Service as refused or undeliverable. Contractor must promptly notify the State, in writing, of each and every change of address to which service of process can be made. Service by the State to the last known address shall be sufficient. Contractor will have thirty (30) calendar days after service hereunder is complete in which to respond.

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 Section 165 of the State Finance Law, (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

Page 6 June 2023 law will be the responsibility of the contractor to establish to meet with the approval of the State.

In addition, when any portion of this contract involving the use of woods, whether supply or installation, is to be performed by any subcontractor, the prime Contractor will indicate and certify in the submitted bid proposal that the subcontractor has been informed and is in compliance with specifications and provisions regarding use of tropical hardwoods as detailed in

§ 165 State Finance Law. Any such use must meet with the approval of the State; otherwise, the bid may not be considered responsive. Under bidder certifications, proof of qualification for exemption will be the responsibility of the Contractor to meet with the approval of the State.

19. MACBRIDE FAIR EMPLOYMENT PRINCIPLES. In accordance with the MacBride Fair Employment Principles

(Chapter 807 of the Laws of 1992), the Contractor hereby stipulates that the Contractor either (a) has no business operations in Northern Ireland, or (b) shall take lawful steps in good faith to conduct any business operations in Northern

Ireland in accordance with the MacBride Fair Employment

Principles (as described in Section 165 of the New York State

Finance Law), and shall permit independent monitoring of compliance with such principles.

20. OMNIBUS PROCUREMENT ACT OF 1992. It is the policy of New York State to maximize opportunities for the participation of New York State business enterprises, including minority- and women-owned business enterprises as bidders, subcontractors and suppliers on its procurement contracts.

Information on the availability of New York State subcontractors and suppliers is available from:

NYS Department of Economic Development

Division for Small Business and Technology Development

625 Broadway

Albany, New York 12245

Telephone: 518-292-5100

A directory of certified minority- and women-owned business enterprises is available from:

NYS Department of Economic Development

Division of Minority and Women’s Business Development

633 Third Avenue 33rd Floor

New York, NY 10017

646-846-7364 email: mwbebusinessdev@esd.ny.gov https://ny.newnycontracts.com/FrontEnd/searchcertifieddir ectory.asp

The Omnibus Procurement Act of 1992 (Chapter 844 of the

Laws of 1992, codified in State Finance Law § 139-i and Public

Authorities Law § 2879(3)(n)–(p)) requires that by signing this bid proposal or contract, as applicable, Contractors certify that whenever the total bid amount is greater than $1 million:

(a) The Contractor has made reasonable efforts to encourage the participation of New York State Business Enterprises as suppliers and subcontractors, including certified minority- and women-owned business enterprises, on this project, and has retained the documentation of these efforts to be provided upon request to the State;

(b) The Contractor has complied with the Federal Equal

Opportunity Act of 1972 (P.L. 92-261), as amended;

(c) The Contractor agrees to make reasonable efforts to provide notification to New York State residents of employment opportunities on this project through listing any such positions with the Job Service Division of the New York State

Department of Labor, or providing such notification in such manner as is consistent with existing collective bargaining contracts or agreements. The Contractor agrees to document these efforts and to provide said documentation to the State upon request; and

(d) The Contractor acknowledges notice that the State may seek to obtain offset credits from foreign countries as a result of this contract and agrees to cooperate with the State in these efforts.

21. RECIPROCITY AND SANCTIONS PROVISIONS.

Bidders are hereby notified that if their principal place of business is located in a country, nation, province, state or political subdivision that penalizes New York State vendors, and if the goods or services they offer will be substantially produced or performed outside New York State, the Omnibus

Procurement Act 1994 and 2000 amendments (Chapter 684 and

Chapter 383, respectively, codified in State Finance Law

§ 165(6) and Public Authorities Law § 2879(5)) require that they be denied contracts which they would otherwise obtain.

NOTE: As of May 2023, the list of discriminatory jurisdictions subject to this provision includes the states of South Carolina, Alaska, West Virginia, Wyoming, Louisiana and Hawaii.

22. COMPLIANCE WITH BREACH NOTIFICATION

AND DATA SECURITY LAWS. Contractor shall comply with the provisions of the New York State Information Security

Breach and Notification Act (General Business Law §§ 899-aa and 899-bb and State Technology Law § 208).

23. COMPLIANCE WITH CONSULTANT

DISCLOSURE LAW. If this is a contract for consulting services, defined for purposes of this requirement to include analysis, evaluation, research, training, data processing, computer programming, engineering, environmental, health, and mental health services, accounting, auditing, paralegal, legal or similar services, then, in accordance with Section 163

(4)(g) of the State Finance Law (as amended by Chapter 10 of the Laws of 2006), the Contractor shall timely, accurately and properly comply with the requirement to submit an annual employment report for the contract to the agency that awarded the contract, the Department of Civil Service and the State

Comptroller.

mailto:mwbebusinessdev@esd.ny.gov https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fny.newnycontracts.com%2FFrontEnd%2Fsearchcertifieddirectory.asp&data=05%7C01%7CBradley.Allen%40ogs.ny.gov%7C07e93ddbe7724c0737a408db5793a42e%7Cf46cb8ea79004d108ceb80e8c1c81ee7%7C0%7C0%7C638200063847647689%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=1QagyzmFXhFPSsIsYt57VrXQpxA4Tw6kD6PHIqJx7wM%3D&reserved=0 https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fny.newnycontracts.com%2FFrontEnd%2Fsearchcertifieddirectory.asp&data=05%7C01%7CBradley.Allen%40ogs.ny.gov%7C07e93ddbe7724c0737a408db5793a42e%7Cf46cb8ea79004d108ceb80e8c1c81ee7%7C0%7C0%7C638200063847647689%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=1QagyzmFXhFPSsIsYt57VrXQpxA4Tw6kD6PHIqJx7wM%3D&reserved=0

Page 7 June 2023

24. PROCUREMENT LOBBYING. To the extent this agreement is a “procurement contract” as defined by State

Finance Law §§ 139-j and 139-k, by signing this agreement the contractor certifies and affirms that all disclosures made in accordance with State Finance Law §§ 139-j and 139-k are complete, true and accurate. In the event such certification is found to be intentionally false or intentionally incomplete, the

State may terminate the 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

§ 5-a, if the contractor fails to make the certification required by Tax Law § 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: https://ogs.ny.gov/iran-divestment-act-2012

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.

During the term of the Contract, should the state agency receive information that a person (as defined in State Finance Law

§ 165-a) is in violation of the above-referenced certifications, the state agency will review such information and offer the person an opportunity to respond. If the person fails to demonstrate that it has ceased its engagement in the investment activity which is in violation of the Act within 90 days after the determination of such violation, then the state agency shall take such action as may be appropriate and provided for by law, rule, or contract, including, but not limited to, imposing sanctions, seeking compliance, recovering damages, or declaring the

Contractor in default.

The state agency reserves the right to reject any bid, request for assignment, renewal or extension for an entity that appears on the Prohibited Entities List prior to the award, assignment, renewal or extension of a contract, and to pursue a responsibility review with respect to any entity that is awarded a contract and appears on the Prohibited Entities list after contract award.

27. ADMISSIBILITY OF REPRODUCTION OF

CONTRACT. Notwithstanding the best evidence rule or any other legal principle or rule of evidence to the contrary, the

Contractor acknowledges and agrees that it waives any and all objections to the admissibility into evidence at any court proceeding or to the use at any examination before trial of an electronic reproduction of this contract, in the form approved by the State Comptroller, if such approval was required, regardless of whether the original of said contract is in existence.

https://ogs.ny.gov/iran-divestment-act-2012

April 2025

APPENDIX C

STANDARD CLAUSES FOR

NEW YORK STATE

OFFICE OF INFORMATION TECHNOLOGY SERVICES

CONTRACTS

PLEASE RETAIN THIS DOCUMENT

FOR FUTURE REFERENCE

CONTRACTS APPENDIX C

Page 2 of 32 April 2025

TABLE OF CONTENTS Page

1. Headings and Captions 3

2. Modification Of Contract 3

3. Executory Provision/Contract Formation 3

4. Contractor Responsibilities, Qualifications, And Change In Status 3

5. Independent Contractor 3

6. Contractor Staff 3

7. Subcontractors, And Contractor Obligations 4

8. Background Checks / Onboarding 5

9. Cooperation With Third Parties 5

10. Cooperation With Investigations, Audits, And Legal Proceedings 5

11. Right To Inspect 5

12. Work Outside The Scope Of The Contract 6

13. Notice 6

14. Itemization, Electronic Payment, And Electronic Invoicing Requirements 6

15. Bid Protests 7

16. Warranties And Guarantees 7

17. Indemnification And Limitation Of Liability 9

18. Suspension Of Work 10

19. Termination 10

20. Default 11 21 Force Majeure 11

22. Dispute Resolution 11

23. General Provision As To Remedies 11

24. Insurance 11

25. Taxes 11

26. Outstanding Tax Liabilities 12

27. Encouraging Use Of New York State Businesses In Contract Performance 12

28. State Finance Law Section 139-I Requirement For Contracts Of $1,000,000 Or More 12

29. Ethics Compiance 13

30. Summary Of Policy And Prohibitions On Procurement Lobbying 13

31. Most Favorable Terms 14

32. Transfer Or Assignment Of Contract 14

33. Waiver Of Breach 14

34. Accessibility 14

35. Severability 14

36. Piggybacking 14

37. NYS Finance Law §163(4)(G) Compliance: Employee Information Required To Be Reported For Certain Consultant Contractors

And Service Contractors

38. Registration With NYS Department Of State 16

39. New York State Vendor File Registration With OSC 16

40. Extraneous Terms 16

41. Nondisclosure & Confidentiality 16

42. Information Releases 19

43. Breaches Of NYS Confidential Information 20

44. Federal Funding And Operating Clauses 21

45. Transition And Knowledge Transfer 24

46. Ownership of Technology 25

47. Data Transparency, Accessibility, Migration, And Destruction At End Of Contract 26

48. Audits of Licenesed Products 27

49. Prohibition On Contracting For Certain Telecommunications And Video Surveillance Services Or Equipment 27

50. Prevailing Wages For Public Works And Building Services Contracts 27

51. Compliance With HIPPA (Health Insurance Portability And Accountability Act Of 1996), Hi-Tech (Health Information

Technology For Economic And Clinical Health Act Of 2009), And Other Health Information Privacy And Security Laws

52. Safeguarding Federal Tax Information 30

53. Criminal Justice Information Services Access 31

Page 3 of 32 April 2025

1. HEADING AND CAPTIONS

The headings or captions contained within are intended solely for convenience and reference purposes and shall in no way be deemed to define, limit, or describe the scope or intent of the Contract or any provisions thereof.

2. MODIFICATION OF CONTRACT

The Contract may be amended only by mutual written consent of the Parties and approval by the NYS Office of the Attorney General (“OAG”) and NYS Office of the State Comptroller (“OSC”), if required.

3. EXECUTORY PROVISION/CONTRACT

FORMATION

Pursuant to State Finance Law, Section 112, as applicable, the Contract must first be approved by OSC before becoming effective.

4. CONTRACTOR RESPONSIBILITIES,

QUALIFICATIONS, AND CHANGE IN STATUS

Contractor must remain a "responsible" vendor, as defined by the State Finance Law, relevant case law and applicable guidelines, throughout the term of the Contract. Failure to do so may result in suspension or termination of the Contract.

Contractor must present evidence of its continuing legal authority to do business in NYS, its integrity, experience, ability, prior performance, and organizational and financial capacity, upon request by ITS.

ITS reserves the right to suspend any or all activities under the Contract at any time if it discovers information that calls into question the responsibility of the Contractor. In the event of such suspension, the Contractor will be given written notice outlining the particulars of such suspension and must comply with the terms of the suspension order. Contract activity may resume at such time as ITS issues a written notice lifting the suspension order.

In addition to the requirements of NYS Finance Law §138 (requiring the State’s approval of subcontractors and assignments, and/or conveyances), the Contractor shall notify ITS in writing of any substantial change in the ownership or financial viability of the Contractor, its Affiliates, subsidiaries or divisions, or partners, immediately upon occurrence.

“Substantial change” means: (i) sales, acquisitions, mergers or takeovers of the Contractor, its affiliates, subsidiaries, divisions, or partners that result in a change in the controlling ownership or assets of such entity after the submission of a response to this solicitation; (ii) entry of an order for relief under Title 11 of the United States Code; (iii) the making of a general assignment for the benefit of creditors; (iv) the appointment of a receiver of Contractor’s business or property or that of its Affiliates, subsidiaries or divisions, or partners; or action by Contractor, its Affiliates, subsidiaries or divisions, or partners under any State insolvency or similar law for the purposes of its bankruptcy, reorganization, or liquidation; or

(v) court ordered liquidation of Contractor, its Affiliates, subsidiaries or divisions, or partners.

In addition to any other remedies available at law or equity, ITS shall have the right to cancel the Contract, in whole or in part, for cause, if it finds, in its sole judgment, that such substantial change adversely affects the delivery of services or is otherwise not in the best interests of the State.

The Contractor shall immediately notify ITS upon learning of any situation that can reasonably be expected to adversely affect the delivery of services under the Contract. If such notification is verbal, the Contractor shall follow such initial verbal notice with a written notice to ITS which shall include a description of the situation and a recommendation of a resolution within three

(3) calendar days of Contractor’s becoming aware of the situation.

5. INDEPENDENT CONTRACTOR

Contractor is an independent contractor, and its Contractor Staff are not and shall not act as State employees in the performance of the Contract. Contractor and its Contractor Staff are not entitled to any of the benefits associated with employment by the State. The Contractor agrees, during the term of the Contract, to maintain at Contractor’s expense those benefits to which its employees would otherwise be entitled by law, including health benefits, and all necessary insurance for its Contractor Staff, including worker’s compensation, disability and unemployment insurance, and to provide ITS with certification of such insurance upon request. The Contractor remains responsible for all applicable federal, state, and local taxes, and all FICA contributions.

6. CONTRACTOR STAFF

“Contractor Staff” includes all agents, employees, officers, partners, and subcontractors of the Contractor who shall perform services under the Contract or have access to "NYS Confidential Information," as this term is defined.

All Contractor Staff performing work under the Contract must meet or exceed the technical and training qualifications set forth in the solicitation and resulting contract, must comply with all security and administrative requirements of ITS, must adhere to all applicable State policies and procedures communicated to the Contractor, must possess the necessary qualifications, training, licenses, and permits as may be required within the jurisdiction where the services specified are to be provided or performed, and shall be legally entitled to work in such jurisdiction. All persons, corporations, or other legal entities that perform services under the Contract on behalf of Contractor shall, in performing the services, comply with all applicable Federal and State laws concerning employment in the United States. Contractor Staff may be required to execute a nondisclosure agreement or series of nondisclosure agreements, either before or upon arrival for work at a NYS Facility, as this

Page 4 of 32 April 2025 term is defined herein, or, if in ITS’s sole discretion, the Contractor’s Staff will otherwise have access to critical State networks, equipment, data, or information.

ITS, in its sole discretion, may require the Contractor to remove from interaction with the State, or may refuse access to State systems and NYS Facilities or require removal from any NYS Facility any Contractor Staff performing work under the Contract that ITS determines poses a security risk, has a work performance that ITS finds inadequate or unacceptable, has provided false or misleading information about credentials or work history, or otherwise fails to meet ITS business requirements or expectations. The Contractor shall not assign the person to any aspect of the Contract or future work orders without ITS' consent. Such action by ITS shall not relieve the Contractor of the obligation to perform all work in compliance with the Contract terms.

For reasons of safety and public policy, the use of illegal drugs and/or alcoholic beverages by the Contractor or its agents, employees, partners or subcontractors is not permitted while performing any phase of the contractual services for ITS under the Contract.

The State shall not be liable for any expense incurred by the Contractor or its agents, employees, partners or subcontractors for any parking or towing fees.

Any Contractor staff or subcontractors (as allowable) providing services to ITS shall be legally authorized to work in the United States or the jurisdiction in which services are being rendered. If ITS determines Contractor or Subcontractor staff are not authorized to work in the United States or other jurisdiction, ITS reserves the right to deem such failure as a material breach. Contractor must immediately notify ITS if it become aware that an individual providing services to ITS is not authorized to work, and agrees to immediately remove from any project or services any individual not authorized to work.

7. SUBCONTRACTORS, AND CONTRACTOR

OBLIGATIONS

If allowed in the Solicitation, Bidders were permitted to submit proposals that included subcontractors (defined as contractors to the prime Contractor that is signing the Contract, who, pursuant to a written contract with Contractor, agree to perform a portion of the Contract's work upon written approval by ITS).

The successful Bidder receiving Contract award and signing the Contract is and remains the Prime Contractor and single point of contact for ITS for this engagement. The Contractor is responsible for meeting all Contract obligations set forth in the solicitation and Contract, including all appendices, attachments, and any subsequent amendments mutually agreed to in writing between the Parties. All subcontractors must be identified by Contractor and must be acceptable to ITS. The Contractor agrees not to subcontract any of its services without the prior written approval of ITS, which approval shall not be unreasonably withheld upon receipt of written request made by Contractor to ITS to subcontract. Contractor may identify a subcontractor proposed to perform certain Contract requirements, but such identification does not relieve the Contractor of any responsibility for performance under the Contract with ITS. Any subcontractor shall be clearly identified by Contractor and the nature and extent of its involvement in and/or proposed performance under the Contract shall be fully explained by the Contractor to ITS.

The Contractor shall provide to ITS a written copy of all subcontracts and third-party contracts related to the provision of services to ITS under the Contract upon request, including a certification that it has fully disclosed all terms and conditions of such contracts and will disclose any amendments which occur subsequent to the original submission. Failure to provide such information shall constitute a breach of the Contract. Any waiver of breach as a result of Contractor’s failure to furnish information required in this paragraph shall not be deemed a waiver of any subsequent breach. The Contractor may request ITS’ approval to submit redacted copies of such subcontracts and third-party contracts from which trade secrets or proprietary information has been removed pursuant to the trade secret provisions of the Contract. No subcontract entered into by the Contractor shall relieve the Contractor of any liabilities or obligations in the solicitation or the resultant Contract. The Contractor accepts full responsibility for the actions of any Contractor Staff who carry out any of the provisions of the Contract. The Contractor is required to retain the requisite amount of legal control over its subcontractors such that the Contractor can remain the single point of contact for ITS and retain ultimate responsibility for all services performed under the Contract.

All subcontracts shall be in writing and include, in such a manner that they will be binding upon each subcontractor with respect to work performed in connection with the Contract, provisions specifying:

• That the work performed by the subcontractor must be in accordance with the terms and conditions of the Contract including Appendix A – Standard Clauses for New York State Contracts and the solicitation;

• That nothing contained in such subcontract shall impair the rights of ITS or the State;

• That nothing contained in the subcontract shall create any contractual relationship between the subcontractor and ITS or the State;

• That the State and ITS shall have the same authority to audit the records of all subcontractors as it does those of the Contractor; and

• That subcontractor shall cooperate with any investigation, audit, litigation, or other inquiry related to the solicitation or the resulting Contract.

Page 5 of 32 April 2025

• That if at any time during performance under the Contract total compensation to a subcontractor exceeds or is expected to exceed $100,000, that subcontractor is required to submit and certify to ITS a Vendor Responsibility Questionnaire.

Unless waived in writing by ITS, all subcontracts between the Contractor and subcontractors shall expressly name New York State, acting through ITS, as the sole intended third-party beneficiary of such subcontract. ITS reserves the right to review and approve or reject any subcontract, as well as any amendment to said subcontract(s), and this right shall not make ITS or New York State a party to any subcontract or create any right, claim, or interest in the subcontractor or proposed subcontractor against ITS. ITS reserves the right, at any time during the term of the Contract, to verify that the written subcontract between the Contractor and subcontractors is in compliance with all of the provisions of this Section and any subcontract provisions contained in the Contract.

The Contractor shall give ITS immediate notice in writing of the initiation of any legal action or suit which relates in any way to a subcontract with a subcontractor or which may affect the performance of the Contractor’s duties under the Contract. Any subcontract shall not relieve the Contractor in any way of any responsibility, duty and/or obligation of the Contract.

ITS reserves the right to reject any proposed subcontractor or supplier if it determines that the company is not qualified or is not responsible.

8. BACKGROUND CHECKS / ONBOARDING

All Contractor Staff shall, prior to the commencement of any services, whether on or off-site, comply with all State onboarding and security clearance requirements, including training and signing certifications or agreements, required for access to NYS Confidential Information or Data or required for access to NYS Facilities or Data Centers, the preceding described, collectively, as ”onboarding.” This includes requirements related to the access to Regulated data, including any requirements of the State's public safety agencies, or those related to the Federal Bureau of Investigation Criminal Justice Information Services (CJIS) Security Policy (https://www.fbi.gov/services/cjis/cjis-security-policy-resource-center).

Contractor agrees that its Contractor Staff performing services on-site at NYS Facilities or Data Centers or those with logical access to NYS Confidential Information or Data (i.e., log-in access) shall be required to undergo the same security clearances as those required of ITS employees. If not physically or virtually escorted, each Contractor Staff providing services shall submit identifying information to the State and be fingerprinted. ITS shall arrange for the scheduling of fingerprinting. Such fingerprints shall be submitted to the NYS Division of Criminal Justice Services for a state criminal history record check and, at ITS' discretion, to the Federal Bureau of Investigation for a national criminal history record check.

Contractor also agrees that its Contractor Staff performing services on-site at NYS Facilities or Data Centers may be required to comply with those health checks which NYS requires of its own employees working on-site including for example providing proof of vaccination against, and/or testing for, infectious disease such as COVID-19.

All expenses, including travel and lodging, associated with the onboarding and security clearance process including fingerprinting of Contractor Staff are the responsibility of the Contractor and are not reimbursable.

ITS shall make all suitability determinations on Contractor Staff. For purposes of this Section, a “suitability determination” is a determination that there are reasonable grounds to believe that an individual will likely be able to perform all contractual requirements without undue risk to the interests of the State.

Failure of a security clearance or non-compliance with this Section will disqualify any Contractor Staff from performing any services. If any Contractor Staff are removed from providing services, they may be subject to all onboarding and security clearance requirements if they are later returned to performing services.

All Contractor Staff shall, at the termination of their providing services to ITS , comply with all State off-boarding and security procedures, including return to ITS of any physical or logical access badges or other credentials that were issued by the State and required for their access to NYS Confidential Information or Data or NYS Facilities or Data Centers.

9. COOPERATION WITH THIRD PARTIES

Upon request by the State, the Contractor shall fully cooperate with any third party designated by the State such as, but not limited to, other contractors or subcontractors, including successor Contractors, retained by the State.

10. COOPERATION WITH INVESTIGATIONS,

AUDITS, RISK ASSESSMENTS, AND LEGAL

PROCEEDINGS

Upon request by ITS, the Contractor shall reasonably, to the extent required by law and without waiving any of its legal rights or remedies, cooperate with the State, including with OSC, in any investigation, audit, risk assessment, or other inquiry related to the solicitation or the resulting Contract or any related litigation, at no cost to the State. This provision shall survive the termination of the Contract.

11. RIGHT TO INSPECT

The State, and any regulatory authority having jurisdiction over the State or ITS, has the right to review Contractor’s and, if applicable, any subcontractor’s procedures, practices and controls related to the security of NYS Confidential

Page 6 of 32 April 2025

Information and information assets. Upon request, Contractor will make available for review the policies, procedures, practices, and documentation related to the protection of NYS Confidential Information and information assets, including but not limited…