SAMPLE CONTRACT2.pdf

Agency Code: ________ Department Code: ________

NEW YORK STATE

Contract Number: ________

Amendment Number: ________

A-1

A. Cover Page

CONTRACT FOR TITLE

AGENCY CONTRACTOR

NYS OPWDD

(AGENCY) DDSOO

(ADDRESS)

(ADDRESS)

NAME OF COMPANY

ADDRESS

TELEPHONE #

FACSIMILE#

FEIN:

SFS VENDOR ID

CONTRACT TERM: (START DATE) THROUGH (END DATE)

TABLE OF CONTENTS

A. COVER PAGE ______________________________________________________________________ A-1

B. AGREEMENT _______________________________________________________________________ B-2

1) Signature Page ___________________________________________________________________________ B-9

2) Notary Page ____________________________________________________________________________ B-10

C. APPENDIX A – STANDARD CLAUSES FOR NEW YORK STATE CONTRACTS _________ C-11

D. APPENDIX A: SUPPLEMENT _______________________________________________________ D-18

E. ADDENDUM TO APPENDIX A: SUPPLEMENT _______________________________________ E-23

F. M/WBE UTILIZATION PLAN ________________________________________________________ F-32

G. SCOPE OF WORK _________________________________________________________________ G-33

H. COST & JUSTIFICATION __________________________________________________________ H-34

I. APPENDIX X _______________________________________________________________________ I-35

B-2

B. Agreement

AGREEMENT made this, (date)… by and between NYS OPWDD … (Agency)… Developmental Disabilities State Operations Office (hereinafter “OPWDD”), with its principal office located in … (City/Town)…, NY and …. (VENDOR)…., (hereinafter “Contractor”), a domestic business entity organized under the laws of the State of New York and having its principal office located in … (City/State)….

WHEREAS, OPWDD requires the Contractor to provide…. Services…., as more fully set forth in Section G - Scope of Work; and

WHEREAS, Contractor has demonstrated it is qualified to provide such services; and

WHEREAS, OPWDD has determined that it is necessary to have Contractor provide such services.

NOW, THEREFORE, in consideration of the mutual covenants and considerations herein set forth, the parties hereto agree as follows:

1. Contractor shall be paid a maximum sum of $..... for all services provided hereunder.

2. Hierarchy of Precedent:

In the event of a conflict of interpretation between the parties, the order of the following documents shall prevail:

a. Appendix A

b. This agreement, including other appendices listed on page one

c. Invitation for Bid - IFB

3. Contractor will submit billing for the services rendered. Payments will be made based on actual services rendered in accordance with the terms of the Scope of Work, and/or expenses incurred during the course of the engagement, in accordance with the appropriate hourly rates or other payment provisions provided in this Agreement, and/or State of New York (“State”) reimbursement rates. Payments shall cover a period of not less than 30 days, and shall be paid after receipt of acceptable, properly documented, bills therefore.

4. Contractor will meet with appropriate OPWDD personnel in order to obtain the information necessary to fulfill its service responsibilities.

5. This agreement may be amended, pursuant to agreement of OPWDD, Contractor, and OSC.

Contractor shall obtain the prior written approval of OPWDD and OSC approval for any change in the scope or nature of the services performed hereunder. Contractor shall remain responsible for such services.

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6. Contractor agrees that all work produced, and the product of all services rendered pursuant to this agreement, shall be the property of OPWDD. Contractor hereby agrees that any work based on the services rendered under this agreement shall be kept in confidence and not be released, published, or disseminated in any form without the express consent in writing of OPWDD.

7. Contractor shall comply with all laws, rules, orders, regulations, and requirements of Federal, State, and Municipal governments applicable thereto.

8. The relationship of the parties arising out of this agreement shall be that of independent contractor. Contractor shall not be considered an employee of OPWDD or the State, as the result of this agreement, nor shall Contractor represent that such employee relationship exists arising out of this contract.

9. In the event of any dispute regarding this agreement, including but not limited to the implementation and delivery of the services to be provided in this agreement, State laws shall be applied.

10. The contractor shall indemnify and hold harmless the State and its officers and employees from claims, suits, actions, damages, and costs of every nature arising out of the provision of services pursuant to this agreement.

11. Contractor shall communicate with OPWDD as often as may be required in order to keep OPWDD fully apprised of the progress of the project hereunder.

12. Unless modified as provided herein, this contract shall begin on 01 APRIL, 2015 and end on 31

MARCH, 2020. The State shall have the right to terminate this contract early for: (i) unavailability of funds; (ii) cause; or (iii) convenience. The State may only invoke its right to terminate for convenience if the State has given written notice to the contractor 30 days or more prior to the date of termination.

13. Metro, Fineson, Brooklyn, Staten Island, IBR, Long Island

Prices are to remain constant for the initial year of the contract. Approaching every contract anniversary date, the Contractor may request, or OPWDD give notice of, an annual price adjustment for the subsequent year. The request or notice must be submitted in writing between 30 days and 60 days prior to the contract anniversary date. OPWDD has the sole discretion in determining the rate to be approved. The adjustment shall be based upon the most recently available, “CPI-U”, not seasonally adjusted, New York-Newark-Jersey City, all items, with the adjustment calculated on a 12-month percent change based on the month 60 days prior to the contract anniversary. Any price adjustment shall not exceed 3.0% per annum.

All Other DDSOOs

Prices are to remain constant for the initial year of the contract. Approaching every contract anniversary date, the Contractor may request, or OPWDD give notice of, an annual price

B-4 adjustment for the subsequent year. The request or notice must be submitted in writing between 30 days and 60 days prior to the contract anniversary date. OPWDD has the sole discretion in determining the rate to be approved. The adjustment shall be based upon the most recently available, “CPI-U”, not seasonally adjusted, Northeast Region, all items, with the adjustment calculated on a 12-month percent change based on the month 60 days prior to the contract anniversary. Any price adjustment shall not exceed 3.0% per annum.

14. If this contract is defined as subject to the Prevailing Wage provisions of either Article 8 or Article 9 of Labor Law, it shall be the responsibility of the contractor to determine the current wage rate for the attached PRC. Wage schedules are subject to change on 01 July of every year and the correct wages rate can be determined by entering the PRC number at, currently, https://applications.labor.ny.gov/wpp/showFindProject.do?method=showIt.

15. OPWDD reserves the right at any time during the term of this agreement to omit any portion of the services, as may be deemed reasonably necessary without constituting grounds for any claim by Contractor for allowances for damages. If such change or alteration results in a reduction of the services covered by this agreement, a proportionate deduction shall be made from the consideration herein.

16. OPWDD reserves the right to suspend any or all activities under the Contract, at any time, in the best interests of the State. In the event of such suspension, the Contractor will be given a formal written notice of such suspension. Examples of the reasons for such suspension include, but are not limited to, a budget freeze on State spending or declaration of emergency. Upon issuance of such notice, the Contractor shall comply with the suspension order. Contractor shall be paid for services performed prior to suspension in accordance with the Contract. Such suspension will be lifted upon written notice to Contractor.

17. OPWDD reserves the right to terminate this contract in the event it is found that the certification filed by the Offeror in accordance with State Finance Law § 139-k was intentionally false or intentionally incomplete. Upon such finding, OPWDD may exercise its termination right by providing written notification to the Offeror in accordance with the written notification terms of this contract.

18. OPWDD reserves the right to terminate this contract in the event Contractor is unable to supply services for two consecutive weeks.

19. The Contractor agrees that without expense to the State, they will procure and will maintain during the period of the proposal and contract, insurance of the kinds and in the amounts hereinafter provided, in insurance companies authorized to do such business in the State of New York, covering all operations under this proposal and contract.

A. Contractor shall furnish to OPWDD a Certificate or Certificates in a form satisfactory to OPWDD, showing that they have complied with the requirements of this section. New York State Office for People with Developmental Disabilities will be expressly named as additional insured on each policy in accordance with above. Certificates of insurance should be forwarded to OPWDD with

B-5 the signed agreement and thereafter annually on the contract anniversary date. Certificates shall state that the policies shall not be changed or cancelled until 30 days written notice has been given to OPWDD Required insurances are:

1. A policy covering the obligations of the successful bidder in accordance with the Workers’

Compensation Law. The contract shall be void and of no effect unless the successful bidder procures such policy and maintains it during the period of the contract.

2. Policies covering bodily injury, liability and property damage of the types hereinafter specified, each with limits of liability not less than $1,000,000.00 for all damages arising out of bodily injury, including death at any time resulting there from, sustained by one person in any one accident, and subject to that limit for that person, and not less than $2,000,000.00 for all damages arising out of bodily injury, including death at any time resulting there from, sustained by two or more persons in any accident and not less than $2,000,000.00 for all damages arising out of injury or destruction of property.

B. Contractor's liability insurance issued to and covering the liability of the successful bidder with respect to all work performed by them under the proposal and the contract.

C. Protective liability insurance issued to and covering the liability of the people of the State of New York with respect to all operations under this proposal and the contract, by the successful bidder, including omissions and supervisory acts of the State.

20. Contractor shall provide safeguards for services and confidentiality.

A. Services performed pursuant to this Agreement are secular in nature and shall be performed in a manner that does not discriminate based on religious belief, or promote or discourage adherence to religion in general or particular religious beliefs.

B. Funds provided pursuant to this Agreement shall not be used for any partisan political activity, or for activities that may influence legislation or the election or defeat of any candidate for public office.

C. Contractor shall treat all information, including but not limited to, information relating to

OPWDD service recipients and providers, obtained by it through its performance under contract, as strictly confidential. Contractor shall not disseminate any information obtained in any manner, to any entity other than OPWDD, except as necessary to the proper discharge of its obligations under contract with OPWDD. All materials and documents produced by the Contractor in the fulfillment of its obligations under contract with OPWDD become the property of OPWDD. The Contractor may not utilize any information obtained via interaction with OPWDD or any other entity, public or private, under this contract in any public medium including, but not limited to (media - radio, television), (electronic/internet), (print -newspaper, policy paper, journal, periodical, book, etc.) or public speaking engagement without the official prior approval of OPWDD Senior Management. Contractor bears the responsibility to uphold these standards rigidly and to require compliance by their employees.

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Contractor shall require compliance with these confidentiality standards in writing from their subcontractors. Contractor shall keep all such confidentiality agreements on file with all other contract records. Requests for exemption to this policy shall be made in writing, at least 14 days in advance, to the OPWDD Contract Management Unit, 44 Holland Avenue, (3rd Floor), Albany, New York 12229.

21. The Contractor agrees that no brochure, news/media/press release, public announcement, memorandum, or other information of any kind regarding the Contract shall be disseminated in any way to the public, nor shall any presentation be given regarding the Contract without the prior written approval of the OPWDD, which written approval shall not be unreasonably withheld or delayed provided, however, that Contractor shall be authorized to provide copies of the Contract and answer any questions relating thereto to any State or federal regulators or, in connection with its financial activities, to financial institutions for any private or public offering.

22. Criminal History Record Check

A. A criminal history record check is a request for information regarding pending criminal charges and criminal convictions with respect to a subject party. Requests are made through OPWDD to the Division of Criminal Justice Services (DCJS) and the Federal Bureau of Investigation (FBI). The check also includes a determination made by OPWDD based on the information received. A criminal history record check is conducted by submitting fingerprints to DCJS and the FBI through an OPWDD process.

B. Potential employees of providers of services who will have regular and substantial unsupervised or unrestricted physical contact with people with developmental disabilities are required to have criminal history record checks.

C. CBC Process

1) An authorized party must be appointed by the submission of the Authorized Party

Designation Form. The authorized party is allowed to request a criminal history record check and receive the results. More than one authorized party may be designated. The authorized party must keep information confidential.

2) Once it has been determined that an applicant meets the criteria for a criminal history record check, the individual must complete the Criminal History Record Check Consent Form. This form must be kept on file. It does not need to be submitted to the CBC unit;

however, it must be able to be produced if so requested. The authorized party must then complete the Request for Criminal History Record Check. The Information for Fingerprint Submission Form must also be completed by the applicant and brought to the fingerprinting location.

3) The DDSOO, voluntary agency, or registered provider can schedule an appointment to have fingerprints taken at the OPWDD DDSOO that is most convenient for them. A number of voluntary agencies are also available for “LIVESCAN” fingerprinting. The list of sites and contacts can be obtained by contacting the CBC unit or visiting the OPWDD website (www.omr.state.ny.us) in the “Information for Providers” section under

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“Criminal history record checks.” The applicant must bring a copy of the Request for Criminal History Record Check Form, the Information for Fingerprint Submission Form and necessary identification (picture ID) to the DDSOO in order to be fingerprinted.

Alternatively, the DDSOO, voluntary agency or registered provider may “ink and roll” applicants themselves or obtain an “ink and roll” set of fingerprints and mail the fingerprints with the aforementioned forms to the CBC unit or bring them to the DDSOO.

Fingerprint cards can be obtained from the CBC unit.

4) There is no out-of-pocket charge for prints taken at an OPWDD facility or for OPWDD, Division of Criminal Justice Services or Federal Bureau of Investigation processing. If fingerprints are taken at a location other than a DDSOO site, there may be a charge for the physical taking of prints.

5) Results are typically available 2-3 days after the fingerprints are processed.

6) Results will be sent to voluntary agencies and DDSOOs electronically through a secure message address. For registered providers, if the provider obtains a secure message address the results will be sent electronically. The OPWDD help desk (518.381.2100) can assist in obtaining a secure message address. If a registered provider does not wish to obtain a secure message address results will be sent by US mail to the authorized party.

7) The CBC unit will notify the authorized party of the determination indicating denial, pending denial, abeyance (meaning that a determination cannot be made at the present) or non-denial for each employee. At the time of notification, the CBC unit will also inform the authorized party what actions shall or may be taken by the provider regarding the person.

8) Voluntary agencies are permitted to utilize employees (including deemed employees) or volunteers prior to receiving the results from the CBC unit, once fingerprints are submitted to OPWDD. OPWDD requirements restrict the person’s activities and mandate oversight during this period. Temporarily approved status is not available for employees of registered providers.

9) People hired by a registered provider cannot work with OPWDD or voluntary agency consumers until the results are received from the CBC unit.

10) If the CBC unit intends to issue a denial the person has the right to submit a written explanation as to why the application should not be denied. In addition, the person may obtain, review, and seek correction of his or her criminal history record information in accordance with procedures established by the Division for Criminal Justice Services (DCJS) and/or the Federal Bureau of Investigation (FBI). OPWDD must be kept informed of the status of a request to correct criminal history record information.

11) At any point when a subject party ceases to be employed by or affiliated with the provider (or is not hired) the CBC unit must be notified by the submission of the Subject Party Change in Status Form within 14 days. If the subject party is taking a leave of absence, the provider is not required to submit the form. If a provider hires a seasonal employee and the employee is expected to return the next year, the provider does not have to submit the form. If a seasonal employee is not expected to return, the form must be submitted.

23. VENDOR RESPONSIBILITY: The CONTRACTOR agrees to adhere to all New York State vendor responsibility requirements relative to business integrity, previous contract performance, legal

B-8 capacity and regulatory authority to conduct business in New York State and financial and organizational capacity.

1) General responsibility language:

The CONTRACTOR shall at all times during the contract term remain responsible. The CONTRACTOR agrees, if requested by the Commissioner of the Office for People with Developmental Disabilities or her designee, to present evidence of its continuing legal authority to do business in New York State, integrity, experience, ability, prior performance, and organizational and financial capacity.

2) Suspension of work for non-responsibility finding:

The Commissioner or her designee, in his or her sole discretion, reserves the right to suspend any or all activities under this CONTRACT, at any time, when she or her designee 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. Upon issuance of such notice, the CONTRACTOR must comply with the terms of the suspension order. CONTRACT activity may resume at such time as the Commissioner or her designee issues a written notice authorizing a resumption of performance under the CONTRACT.

3) Termination for non-responsibility:

Upon written notice to the CONTRACTOR, and a reasonable opportunity to be heard with appropriate Office for People with Developmental Disabilities officials or staff, the CONTRACT may be terminated by the Commissioner of the Office of People with Developmental Disabilities or her designee at the CONTRACTOR’S expense where the CONTRACTOR is determined by the Commissioner of the Office for People with Developmental Disabilities or her designee to be non-responsible. In such event, the Commissioner of the Office for People with Developmental Disabilities or her designee may complete the contractual requirements in any manner he or she may deem advisable and pursue available legal or equitable remedies for breach.

24. This agreement constitutes the entire agreement of the parties hereto and all previous communications between the parties, whether written or oral, with reference to the subject matter of this contract are hereby superseded.

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1) Signature Page

IN WITNESS WHEREOF, the parties hereto have executed this Contract as of the dates appearing next to their signatures:

(Contractor) (Address) (Address)

Signature

Date

Print Name & Title

NYS OPWDD

_______________ DDSOO

C/O Taconic DDSOO 26 Center Circle, Wassaic, New York 12592

Signature

Date

Deborah C. Grieco, Contract Management Specialist 3 Print Name & Title

In addition to the acceptance of this contract, I also certify that original copies of this signature page will be attached to all other exact copies of this contract.

Approved as to Form:

Attorney General

Approved:

Thomas P. DiNapoli State Comptroller

By: By:

Date: Date:

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2) Notary Page Individual, Corporation, Partnership, or LLC Acknowledgment

State of New York )

SS.:

County of )

On the day ___ of _________ in the year 202__, before me personally appeared ______________________________________________, known to me to be the person who executed the foregoing instrument, who, being duly sworn by me did depose and say that he resides at ___________________________________________________________________________________________________________, Town of __________________________________, County of _______________________, State of __________________; and further that:

[Mark an X in the appropriate box and complete the accompanying statement.]

□ (If an individual): _he executed the foregoing instrument in his/her name and on his/her own behalf.

□ (If a corporation): _he is the _________________________________________________________________________________ of

_________________________________________________________________________________________________________, the corporation described in said instrument; that, by authority of the Board of Directors of said corporation, _he is authorized to execute the foregoing instrument on behalf of the corporation for purposes set forth therein; and that, pursuant to that authority, _he executed the foregoing instrument in the name of and on behalf of said corporation as the act and deed of said corporation.

□ (If a partnership): _he is a ___________________________________________________________________________________ of

_________________________________________________________________________________________________________, the partnership described in said instrument; that, by the terms of said partnership, _he is authorized to execute the foregoing instrument on behalf of the partnership for purposes set forth therein; and that, pursuant to that authority, _he executed the foregoing instrument in the name of and on behalf of said partnership as the act and deed of said partnership.

□ (If a limited liability company): _he is a duly authorized member of ______________________________________________ LLC, the limited liability company described in said instrument; that _he is authorized to execute the foregoing instrument on behalf of the limited liability company for purposes set forth therein; and that, pursuant to that authority, _he executed the foregoing instrument in the name of and on behalf of said limited liability company as the act and deed of said limited liability company.

Notary Public

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C. Appendix A – Standard Clauses for 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 State Finance Law § 41, 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 State Finance Law § 138, 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 Approval. In accordance with State Finance Law § 112 (or, if this contract is with the State

University or City University of New York, Education Law § 355 or § 6218), if this contract exceeds $50,000 (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 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 is required when such contracts exceed $85,000 (State Finance Law § 163.6-a). However, such pre-approval shall not be required for any contract established as a centralized contract through the Office of General Services or for a purchase order or other transaction issued under such centralized contract.

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, 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

C-12 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 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 State Finance Law § 139-d, 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 Labor Law § 220-f and State Finance Law § 139-h, 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

C-13 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.

12. Equal Employment Opportunities for Minorities and Women. In accordance with Executive Law § 312 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

C-14 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 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.

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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 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, prime Contractor will indicate and certify in the submitted bid proposal that the subcontractor has been informed and complies with specifications and provisions regarding use of tropical hardwoods as detailed in Finance Law § 165. 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 Contractor to meet with State approval.

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 Finance Law § 165), 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 Albany, New York 12245 Telephone: 518-292-5100 Fax: 518-292-5884 email: opa@esd.ny.gov

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 New York, New York 10017 Telephone: 212-803-2414 email: mwbecertification@esd.ny.gov https://ny.newnycontracts.com/FrontEnd/VendorSearchPublic.asp

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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 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 October 2019, 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 New York State Information Security Breach and Notification Act. Contractor shall comply with the provisions of the New York State Information Security Breach and Notification Act (General Business Law § 899-aa and State Technology Law § 208) and commencing March 21, 2020 shall also comply with General Business Law § 899-bb.

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.

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.

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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…