APPENDIX A – Standard Clauses for New York State Contracts

APPENDIX ASTANDARD CLAUSES FOR NEW YORK STATE CONTRACTS

TABLE OF CONTENTS1. Executory Clause 32. Non-Assignment Clause 33. Comptroller’s Approval 34. Workers’ Compensation Benefits 35. Non-Discrimination Requirements 36. Wage and Hours Provisions 47. Non-Collusive Bidding Certification 48. International Boycott Prohibition 49. Set-Off Rights 410. Records 411. Identifying Information and Privacy Notification 512. Equal Employment Opportunities For Minorities and Women 513. Conflicting Terms 614. Governing Law 615. Late Payment 616. No Arbitration 617. Service of Process 618. Prohibition on Purchase of Tropical Hardwoods 619. MacBride Fair Employment Principles 620. Omnibus Procurement Act of 1992 621. Reciprocity and Sanctions Provisions 722. Compliance with New York State Information Security Breach and Notification Act 723. Compliance with Consultant Disclosure Law 724. Procurement Lobbying 725. Certification of Registration to Collect Sales and Compensating Use Tax by Certain 8State Contractors, Affiliates and SubcontractorsPage2 June 2011

STANDARD CLAUSES FOR NYS CONTRACTSThe parties to the attached contract, license, lease,amendment or other agreement of any kind (hereinafter,"the contract" or "this contract") agree to be bound bythe following clauses which are hereby made a part ofthe contract (the word "Contractor" herein refers to anyparty other than the State, whether a contractor, licenser,licensee, lessor, lessee or any other party):1. EXECUTORY CLAUSE. In accordance withSection 41 of the State Finance Law, the State shall haveno liability under this contract to the Contractor or toanyone else beyond funds appropriated and available forthis contract.2. NON-ASSIGNMENT CLAUSE. In accordancewith Section 138 of the State Finance Law, this contractmay not be assigned by the Contractor or its right, titleor interest therein assigned, transferred, conveyed, subletor otherwise disposed of without the State’s previouswritten consent, and attempts to do so are null and void.Notwithstanding the foregoing, such prior writtenconsent of an assignment of a contract let pursuant toArticle XI of the State Finance Law may be waived atthe discretion of the contracting agency and with theconcurrence of the State Comptroller where the originalcontract was subject to the State Comptroller’s approval,where the assignment is due to a reorganization, mergeror consolidation of the Contractor’s business entity orenterprise. The State retains its right to approve anassignment and to require that any Contractordemonstrate its responsibility to do business with theState. The Contractor may, however, assign its right toreceive payments without the State’s prior writtenconsent unless this contract concerns Certificates ofParticipation pursuant to Article 5-A of the State FinanceLaw.3. COMPTROLLER'S APPROVAL. In accordancewith Section 112 of the State Finance Law (or, if thiscontract is with the State University or City Universityof New York, Section 355 or Section 6218 of theEducation Law), if this contract exceeds $50,000 (or theminimum thresholds agreed to by the Office of the StateComptroller for certain S.U.N.Y. and C.U.N.Y.contracts), or if this is an amendment for any amount toa contract which, as so amended, exceeds said statutoryamount, or if, by this contract, the State agrees to givesomething other than money when the value orreasonably estimated value of such considerationexceeds $10,000, it shall not be valid, effective orbinding upon the State until it has been approved by theState Comptroller and filed in his office. Comptroller'sapproval of contracts let by the Office of GeneralServices is required when such contracts exceed $85,000(State Finance Law Section 163.6.a).4. WORKERS' COMPENSATION BENEFITS. Inaccordance with Section 142 of the State Finance Law,this contract shall be void and of no force and effectunless the Contractor shall provide and maintaincoverage during the life of this contract for the benefit ofsuch employees as are required to be covered by theprovisions of the Workers' Compensation Law.5. NON-DISCRIMINATION REQUIREMENTS.To the extent required by Article 15 of the ExecutiveLaw (also known as the Human Rights Law) and allother State and Federal statutory and constitutional nondiscriminationprovisions, the Contractor will notdiscriminate against any employee or applicant foremployment because of race, creed, color, sex, nationalorigin, sexual orientation, age, disability, geneticpredisposition or carrier status, or marital status.Furthermore, in accordance with Section 220-e of theLabor Law, if this is a contract for the construction,alteration or repair of any public building or public workor for the manufacture, sale or distribution of materials,equipment or supplies, and to the extent that this contractshall be performed within the State of New York,Contractor agrees that neither it nor its subcontractorsshall, by reason of race, creed, color, disability, sex, ornational origin: (a) discriminate in hiring against anyNew York State citizen who is qualified and available toperform the work; or (b) discriminate against orintimidate any employee hired for the performance ofwork under this contract. If this is a building servicecontract as defined in Section 230 of the Labor Law,then, in accordance with Section 239 thereof, Contractoragrees that neither it nor its subcontractors shall byreason of race, creed, color, national origin, age, sex ordisability: (a) discriminate in hiring against any NewYork State citizen who is qualified and available toperform the work; or (b) discriminate against orintimidate any employee hired for the performance ofwork under this contract. Contractor is subject to finesof $50.00 per person per day for any violation of Section220-e or Section 239 as well as possible termination of3 June 2011

this contract and forfeiture of all moneys due hereunderfor a second or subsequent violation.6. WAGE AND HOURS PROVISIONS. If this is apublic work contract covered by Article 8 of the LaborLaw or a building service contract covered by Article 9thereof, neither Contractor's employees nor theemployees of its subcontractors may be required orpermitted to work more than the number of hours ordays stated in said statutes, except as otherwise providedin the Labor Law and as set forth in prevailing wage andsupplement schedules issued by the State LaborDepartment. Furthermore, Contractor and itssubcontractors must pay at least the prevailing wage rateand pay or provide the prevailing supplements, includingthe premium rates for overtime pay, as determined bythe State Labor Department in accordance with theLabor Law. Additionally, effective April 28, 2008, ifthis is a public work contract covered by Article 8 of theLabor Law, the Contractor understands and agrees thatthe filing of payrolls in a manner consistent withSubdivision 3-a of Section 220 of the Labor Law shallbe a condition precedent to payment by the State of anyState approved sums due and owing for work done uponthe project.7. NON-COLLUSIVE BIDDING CERTIFICATION.In accordance with Section 139-d of the State FinanceLaw, if this contract was awarded based upon thesubmission of bids, Contractor affirms, under penalty ofperjury, that its bid was arrived at independently andwithout collusion aimed at restricting competition.Contractor further affirms that, at the time Contractorsubmitted its bid, an authorized and responsible personexecuted and delivered to the State a non-collusivebidding certification on Contractor's behalf.8. INTERNATIONAL BOYCOTT PROHIBITION.In accordance with Section 220-f of the Labor Law andSection 139-h of the State Finance Law, if this contractexceeds $5,000, the Contractor agrees, as a materialcondition of the contract, that neither the Contractor norany substantially owned or affiliated person, firm,partnership or corporation has participated, is participating,or shall participate in an international boycott inviolation of the federal Export Administration Act of1979 (50 USC App. Sections 2401 et seq.) or regulationsthereunder. If such Contractor, or any of the aforesaidaffiliates of Contractor, is convicted or is otherwisefound to have violated said laws or regulations upon thefinal determination of the United States CommerceDepartment or any other appropriate agency of theUnited States subsequent to the contract's execution,such contract, amendment or modification thereto shallbe rendered forfeit and void. The Contractor shall sonotify the State Comptroller within five (5) businessdays of such conviction, determination or disposition ofappeal (2NYCRR 105.4).9. SET-OFF RIGHTS. The State shall have all of itscommon law, equitable and statutory rights of set-off.These rights shall include, but not be limited to, theState's option to withhold for the purposes of set-off anymoneys due to the Contractor under this contract up toany amounts due and owing to the State with regard tothis contract, any other contract with any Statedepartment or agency, including any contract for a termcommencing prior to the term of this contract, plus anyamounts due and owing to the State for any other reasonincluding, without limitation, tax delinquencies, feedelinquencies or monetary penalties relative thereto.The State shall exercise its set-off rights in accordancewith normal State practices including, in cases of set-offpursuant to an audit, the finalization of such audit by theState agency, its representatives, or the StateComptroller.10. RECORDS. The Contractor shall establish andmaintain complete and accurate books, records,documents, accounts and other evidence directly pertinentto performance under this contract (hereinafter,collectively, "the Records"). The Records must be kept forthe balance of the calendar year in which they were madeand for six (6) additional years thereafter. The StateComptroller, the Attorney General and any other person orentity authorized to conduct an examination, as well as theagency or agencies involved in this contract, shall haveaccess to the Records during normal business hours at anoffice of the Contractor within the State of New York or, ifno such office is available, at a mutually agreeable andreasonable venue within the State, for the term specifiedabove for the purposes of inspection, auditing and copying.The State shall take reasonable steps to protect from publicdisclosure any of the Records which are exempt fromdisclosure under Section 87 of the Public Officers Law(the "Statute") provided that: (i) the Contractor shalltimely inform an appropriate State official, in writing, thatsaid records should not be disclosed; and (ii) said recordsshall be sufficiently identified; and (iii) designation of saidrecords as exempt under the Statute is reasonable. Nothingcontained herein shall diminish, or in any way adversely4 June 2011

affect, the State's right to discovery in any pending orfuture litigation.11. IDENTIFYING INFORMATION ANDPRIVACY NOTIFICATION. (a) FEDERALEMPLOYER IDENTIFICATION NUMBER and/orFEDERAL SOCIAL SECURITY NUMBER. Allinvoices or New York State standard voucherssubmitted for payment for the sale of goods or servicesor the lease of real or personal property to a New YorkState agency must include the payee's identificationnumber, i.e., the seller's or lessor's identificationnumber. The number is either the payee's Federalemployer identification number or Federal socialsecurity number, or both such numbers when the payeehas both such numbers. Failure to include this numberor numbers may delay payment. Where the payee doesnot have such number or numbers, the payee, on itsinvoice or New York State standard voucher, must givethe reason or reasons why the payee does not have suchnumber or numbers.(b) PRIVACY NOTIFICATION. (1) The authority torequest the above personal information from a seller ofgoods or services or a lessor of real or personal property,and the authority to maintain such information, is foundin Section 5 of the State Tax Law. Disclosure of thisinformation by the seller or lessor to the State ismandatory. The principal purpose for which theinformation is collected is to enable the State to identifyindividuals, businesses and others who have beendelinquent in filing tax returns or may have understatedtheir tax liabilities and to generally identify personsaffected by the taxes administered by the Commissionerof Taxation and Finance. The information will be usedfor tax administration purposes and for any otherpurpose authorized by law. (2) The personalinformation is requested by the purchasing unit of theagency contracting to purchase the goods or services orlease the real or personal property covered by thiscontract or lease. The information is maintained in NewYork State's Central Accounting System by the Directorof Accounting Operations, Office of the StateComptroller, 110 State Street, Albany, New York 12236.12. EQUAL EMPLOYMENT OPPORTUNITIESFOR MINORITIES AND WOMEN. In accordancewith Section 312 of the Executive Law and 5 NYCRR143, if this contract is: (i) a written agreement orpurchase order instrument, providing for a totalexpenditure in excess of $25,000.00, whereby acontracting agency is committed to expend or doesexpend funds in return for labor, services, supplies,equipment, materials or any combination of theforegoing, to be performed for, or rendered or furnishedto the contracting agency; or (ii) a written agreement inexcess of $100,000.00 whereby a contracting agency iscommitted to expend or does expend funds for theacquisition, construction, demolition, replacement, majorrepair or renovation of real property and improvementsthereon; or (iii) a written agreement in excess of$100,000.00 whereby the owner of a State assistedhousing project is committed to expend or does expendfunds for the acquisition, construction, demolition,replacement, major repair or renovation of real propertyand improvements thereon for such project, then thefollowing shall apply and by signing this agreement theContractor certifies and affirms that it is Contractor’sequal employment opportunity policy that:(a) The Contractor will not discriminate againstemployees or applicants for employment because ofrace, creed, color, national origin, sex, age, disability ormarital status, shall make and document itsconscientious and active efforts to employ and utilizeminority group members and women in its work forceon State contracts and will undertake or continueexisting programs of affirmative action to ensure thatminority group members and women are afforded equalemployment opportunities without discrimination.Affirmative action shall mean recruitment, employment,job assignment, promotion, upgradings, demotion,transfer, layoff, or termination and rates of pay or otherforms of compensation;(b) at the request of the contracting agency, theContractor shall request each employment agency, laborunion, or authorized representative of workers withwhich it has a collective bargaining or other agreementor understanding, to furnish a written statement that suchemployment agency, labor union or representative willnot discriminate on the basis of race, creed, color,national origin, sex, age, disability or marital status andthat such union or representative will affirmativelycooperate in the implementation of the Contractor'sobligations herein; and(c) the Contractor shall state, in all solicitations oradvertisements for employees, that, in the performanceof the State contract, all qualified applicants will beafforded equal employment opportunities without5 June 2011

discrimination because of race, creed, color, nationalorigin, 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 theconstruction, demolition, replacement, major repair,renovation, planning or design of real property andimprovements thereon (the "Work") except where theWork is for the beneficial use of the Contractor. Section312 does not apply to: (i) work, goods or servicesunrelated to this contract; or (ii) employment outsideNew York State. The State shall consider compliance bya contractor or subcontractor with the requirements ofany federal law concerning equal employmentopportunity which effectuates the purpose of thissection. The contracting agency shall determine whetherthe imposition of the requirements of the provisionshereof duplicate or conflict with any such federal lawand if such duplication or conflict exists, the contractingagency shall waive the applicability of Section 312 tothe extent of such duplication or conflict. Contractorwill comply with all duly promulgated and lawful rulesand regulations of the Department of EconomicDevelopment’s Division of Minority and Women'sBusiness Development pertaining hereto.13. CONFLICTING TERMS. In the event of aconflict between the terms of the contract (including anyand all attachments thereto and amendments thereof) andthe terms of this Appendix A, the terms of this AppendixA shall control.14. GOVERNING LAW. This contract shall begoverned by the laws of the State of New York exceptwhere the Federal supremacy clause requires otherwise.15. LATE PAYMENT. Timeliness of payment and anyinterest to be paid to Contractor for late payment shall begoverned by Article 11-A of the State Finance Law tothe extent required by law.16. NO ARBITRATION. Disputes involving thiscontract, including the breach or alleged breach thereof,may not be submitted to binding arbitration (exceptwhere statutorily authorized), but must, instead, be heardin a court of competent jurisdiction of the State of NewYork.17. SERVICE OF PROCESS. In addition to themethods of service allowed by the State Civil PracticeLaw & Rules ("CPLR"), Contractor hereby consents toservice of process upon it by registered or certified mail,return receipt requested. Service hereunder shall becomplete upon Contractor's actual receipt of process orupon the State's receipt of the return thereof by theUnited States Postal Service as refused or undeliverable.Contractor must promptly notify the State, in writing, ofeach and every change of address to which service ofprocess can be made. Service by the State to the lastknown address shall be sufficient. Contractor will havethirty (30) calendar days after service hereunder iscomplete in which to respond.18. PROHIBITION ON PURCHASE OFTROPICAL HARDWOODS. The Contractor certifiesand warrants that all wood products to be used under thiscontract award will be in accordance with, but notlimited to, the specifications and provisions of Section165 of the State Finance Law, (Use of TropicalHardwoods) which prohibits purchase and use oftropical hardwoods, unless specifically exempted, by theState or any governmental agency or politicalsubdivision or public benefit corporation. Qualificationfor an exemption under this law will be theresponsibility of the contractor to establish to meet withthe approval of the State.In addition, when any portion of this contract involvingthe use of woods, whether supply or installation, is to beperformed by any subcontractor, the prime Contractorwill indicate and certify in the submitted bid proposalthat the subcontractor has been informed and is incompliance with specifications and provisions regardinguse of tropical hardwoods as detailed in §165 StateFinance Law. Any such use must meet with the approvalof the State; otherwise, the bid may not be consideredresponsive. Under bidder certifications, proof ofqualification for exemption will be the responsibility ofthe Contractor to meet with the approval of the State.19. MACBRIDE FAIR EMPLOYMENTPRINCIPLES. In accordance with the MacBride FairEmployment Principles (Chapter 807 of the Laws of1992), the Contractor hereby stipulates that theContractor either (a) has no business operations inNorthern Ireland, or (b) shall take lawful steps in goodfaith to conduct any business operations in NorthernIreland in accordance with the MacBride FairEmployment Principles (as described in Section 165 ofthe New York State Finance Law), and shall permitindependent monitoring of compliance with suchprinciples.6 June 2011

20. OMNIBUS PROCUREMENT ACT OF 1992. Itis the policy of New York State to maximize opportunitiesfor the participation of New York State businessenterprises, including minority and women-ownedbusiness enterprises as bidders, subcontractors andsuppliers on its procurement contracts.Information on the availability of New York Statesubcontractors and suppliers is available from:NYS Department of Economic DevelopmentDivision for Small Business30 South Pearl St -- 7 th FloorAlbany, New York 12245Telephone: 518-292-5220Fax: 518-292-5884http://www.empire.state.ny.usA directory of certified minority and women-ownedbusiness enterprises is available from:NYS Department of Economic DevelopmentDivision of Minority and Women's BusinessDevelopment30 South Pearl St -- 2nd FloorAlbany, New York 12245Telephone: 518-292-5250Fax: 518-292-5803http://www.empire.state.ny.usThe Omnibus Procurement Act of 1992 requires that bysigning this bid proposal or contract, as applicable,Contractors certify that whenever the total bid amount isgreater than $1 million:(a) The Contractor has made reasonable efforts toencourage the participation of New York State BusinessEnterprises as suppliers and subcontractors, includingcertified minority and women-owned businessenterprises, on this project, and has retained thedocumentation of these efforts to be provided uponrequest to the State;(b) The Contractor has complied with the Federal EqualOpportunity Act of 1972 (P.L. 92-261), as amended;(c) The Contractor agrees to make reasonable efforts toprovide notification to New York State residents ofemployment opportunities on this project through listingany such positions with the Job Service Division of theNew York State Department of Labor, or providing suchnotification in such manner as is consistent with existingcollective bargaining contracts or agreements. TheContractor agrees to document these efforts and toprovide said documentation to the State upon request;and(d) The Contractor acknowledges notice that the Statemay seek to obtain offset credits from foreign countriesas a result of this contract and agrees to cooperate withthe State in these efforts.21. RECIPROCITY AND SANCTIONSPROVISIONS. Bidders are hereby notified that if theirprincipal place of business is located in a country,nation, province, state or political subdivision thatpenalizes New York State vendors, and if the goods orservices they offer will be substantially produced orperformed outside New York State, the OmnibusProcurement Act 1994 and 2000 amendments (Chapter684 and Chapter 383, respectively) require that they bedenied contracts which they would otherwise obtain.NOTE: As of May 15, 2002, the list of discriminatoryjurisdictions subject to this provision includes the statesof South Carolina, Alaska, West Virginia, Wyoming,Louisiana and Hawaii. Contact NYS Department ofEconomic Development for a current list of jurisdictionssubject to this provision.22. COMPLIANCE WITH NEW YORK STATEINFORMATION SECURITY BREACH ANDNOTIFICATION ACT. Contractor shall comply withthe provisions of the New York State InformationSecurity Breach and Notification Act (General BusinessLaw Section 899-aa; State Technology Law Section208).23. COMPLIANCE WITH CONSULTANTDISCLOSURE LAW. If this is a contract forconsulting services, defined for purposes of thisrequirement to include analysis, evaluation, research,training, data processing, computer programming,engineering, environmental, health, and mental healthservices, accounting, auditing, paralegal, legal or similarservices, then, in accordance with Section 163 (4-g) ofthe State Finance Law (as amended by Chapter 10 of theLaws of 2006), the Contractor shall timely, accuratelyand properly comply with the requirement to submit anannual employment report for the contract to the agencythat awarded the contract, the Department of CivilService and the State Comptroller.7 June 2011

24. PROCUREMENT LOBBYING. To the extentthis agreement is a "procurement contract" as defined byState Finance Law Sections 139-j and 139-k, by signingthis agreement the contractor certifies and affirms thatall disclosures made in accordance with State FinanceLaw Sections 139-j and 139-k are complete, true andaccurate. In the event such certification is found to beintentionally false or intentionally incomplete, the Statemay terminate the agreement by providing writtennotification to the Contractor in accordance with theterms of the agreement.25. CERTIFICATION OF REGISTRATION TOCOLLECT SALES AND COMPENSATING USETAX BY CERTAIN STATE CONTRACTORS,AFFILIATES AND SUBCONTRACTORS.To the extent this agreement is a contract as defined byTax Law Section 5-a, if the contractor fails to make thecertification required by Tax Law Section 5-a or ifduring the term of the contract, the Department ofTaxation and Finance or the covered agency, as definedby Tax Law 5-a, discovers that the certification, madeunder penalty of perjury, is false, then such failure to fileor false certification shall be a material breach of thiscontract and this contract may be terminated, byproviding written notification to the Contractor inaccordance with the terms of the agreement, if thecovered agency determines that such action is in the bestinterest of the State.8 June 2011