7/30/2019 Standard Contract Clauses

1/3

Standard Contract ClausesState University of New York December 13, 2012

The parties to the attached contract, license, lease, amendment or other agreement of any kind (hereinafter, "contract") agree to be bound by the following clauses which arehereby made a part of the contract (the word "Contractor" herein refers to any party other than the State, whether a Contractor, licensor, licensee, lessor, lessee or any otherparty):

1. EXECUTORY CLAUSE. In accordance withSection 41 of the State Finance Law, the Stateshall have no liability under this contract to theContractor or to anyone else beyond fundsappropriated and available for this contract.

2. PROHIBITION AGAINST ASSIGNMENTExcept for the assignment of its right to receivepayments subject to Article 5-A of the StateFinance Law, the Contractor selected to performthe services herein are prohibited in accordancewith Section 138 of the State Finance Law fromassigning, transferring, conveying, subletting orotherwise disposing of its rights, title or interest inthe contract without the prior written consent ofSUNY and attempts to do so are null and void.Notwithstanding the foregoing, SUNY may, withthe concurrence of the New York Office of StateComptroller, waive prior written consent of theassignment, transfer, conveyance, sublease orother disposition of a contract let pursuant toArticle XI of the State Finance Law if theassignment, transfer, conveyance, sublease orother disposition is due to a reorganization,merger or consolidation of Contractors its

business entity or enterprise and Contractor socertifies to SUNY. SUNY retains the right, asprovided in Section 138 of the State Finance Law,to accept or reject an assignment, transfer,conveyance, sublease or other disposition of thecontract, and to require that any Contractordemonstrate its responsibility to do business withSUNY.

3. COMPTROLLER'S APPROVAL. (a) Inaccordance with Section 112 of the State FinanceLaw, Section 355 of New York State EducationLaw, and 8 NYCRR 316, Comptrollers approval isnot required for the following contracts: (i)materials; (ii) equipment and supplies, includingcomputer equipment; (iii) motor vehicles; (iv)construction; (v) construction-related services;(vi) printing; and (vii) goods for State University

health care facilities, including contracts for goodsmade with joint or group purchasingarrangements.

(b) Comptrollers approval is required for thefollowing contracts: (i) contracts for services notlisted in Paragraph (3)(a) above made by a StateUniversity campus or health care facility certifiedby the Vice Chancellor and Chief FinancialOfficer, if the contract value exceeds $250,000;(ii) contracts for services not listed in Paragraph(3)(a) above made by a State University campusnot certified by the Vice Chancellor and ChiefFinancial Officer, if the contract value exceeds$50,000; (iii) contracts for services not listed inParagraph (3)(a) above made by health carefacilities not certified by the Vice Chancellor andChief Financial Officer, if the contract valueexceeds $75,000; (iv) contracts whereby theState University agrees to give something otherthan money, when the value or reasonablyestimated value of such consideration exceeds$10,000; (v) contracts for real propertytransactions if the contract value exceeds$50,000; (vi) all other contracts not listed inParagraph 3(a) above, if the contract valueexceeds $50,000, e.g. SUNY acquisition of abusiness and New York State Finance Article 11-B contracts and (vii) amendments for any amountto contracts not listed in Paragraph (3)(a) above,when as so amended, the contract exceeds thethreshold amounts stated in Paragraph (b) herein.However, such pre-approval shall not be requiredfor any contract established as a centralizedcontract through the Office of General Services orfor a purchase order or other transaction issuedunder such centralized contract.

(c) Any contract that requires Comptroller

approval shall not be valid, effective or binding

upon the State University until it has beenapproved by the Comptroller and filed in theComptrollers office.

4. WORKERS' COMPENSATION BENEFITS. Inaccordance with Section 142 of the State Finance

Law, this contract shall be void and of no forceand effect unless the Contractor shall provide andmaintain coverage during the life of this contractfor the benefit of such employees as are requiredto be covered by the provisions of the Workers'Compensation Law.

5. NON-DISCRIMINATION REQUIREMENTS.To the extent required by Article 15 of theExecutive Law (also known as the Human RightsLaw) and all other State and Federal statutory andconstitutional non-discrimination provisions, theContractor will not discriminate against anyemployee or applicant for employment because ofrace, creed, color, sex, national origin, sexualorientation, age, disability, genetic predispositionor carrier status, or marital status. Furthermore, inaccordance with Section 220-e of the Labor Law,

if this is a contract for the construction, alterationor repair of any public building or public work orfor the manufacture, sale or distribution ofmaterials, equipment or supplies, and to theextent that this contract shall be performed withinthe State of New York, Contractor agrees thatneither it nor its subcontractors shall, by reason ofrace, creed, color, disability, sex, or nationalorigin: (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 theperformance of work under this contract. If this isa building service contract as defined in Section230 of the Labor Law, then, in accordance withSection 239 thereof, Contractor agrees thatneither it nor its subcontractors shall by reason ofrace, creed, color, national origin, age, sex ordisability: (a) discriminate in hiring against any

New York State citizen who is qualified andavailable to perform the work; or (b) discriminateagainst or intimidate any employee hired for theperformance of work under this contract.Contractor is subject to fines of $50.00 per personper day for any violation of Section 220-e orSection 239 as well as possible termination of thiscontract and forfeiture of all moneys duehereunder for a second or subsequent violation

6. WAGE AND HOURS PROVISIONS. If this isa public work contract covered by Article 8 of theLabor Law or a building service contract coveredby Article 9 thereof, neither Contractor'semployees nor the employees of itssubcontractors may be required or permitted towork more than the number of hours or daysstated in said statutes, except as otherwiseprovided in the Labor Law and as set forth in

prevailing wage and supplement schedulesissued by the State Labor Department.Furthermore, Contractor and its subcontractorsmust pay at least the prevailing wage rate andpay or provide the prevailing supplements,including the premium rates for overtime pay, asdetermined by the State Labor Department inaccordance with the Labor Law. Additionally,effective April 28, 2008, if this is a public workcontract covered by Article 8 of the Labor Law,the Contractor understands and agrees that thefiling of payrolls in a manner consistent withSubdivision 3-a of Section 220 of the Labor Lawshall be a condition precedent to payment bySUNY of any SUNY-approved sums due andowing 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 basedon the submission of competitive bids, Contractoaffirms, under penalty of perjury, and each personsigning on behalf of Contractor, and in the caseof a joint bid each party thereto certifies as to itsown organization, under penalty of perjury, that to

the best of its knowledge and belief that its bidwas arrived at independently and withoucollusion aimed at restricting competitionContractor further affirms that, at the timeContractor submitted its bid, an authorized andresponsible person executed and delivered it toSUNY a non-collusive bidding certification onContractors behalf.

8. INTERNATIONAL BOYCOTT PROHIBITIONIn accordance with Section 220-f of the Labor Lawand Section 139-h of the State Finance Law, ithis contract exceeds $5,000, the Contractoagrees, as a material condition of the contractthat neither the Contractor nor any substantiallyowned or affiliated person, firm, partnership ocorporation has participated, is participating, oshall participate in an international boycott inviolation of the federal Export Administration Ac

of 1979 (50 USC App. Sections 2401 etseq.) oregulations thereunder. If such Contractor, or anof the aforesaid affiliates of Contractor, isconvicted or is otherwise found to have violatedsaid laws or regulations upon the finadetermination of the United States CommerceDepartment or any other appropriate agency othe United States subsequent to the contract'sexecution, such contract, amendment omodification thereto shall be rendered forfeit andvoid. The Contractor shall so notify the StateComptroller within five (5) business days of suchconviction, determination or disposition of appea(2 NYCRR 105.4).

9. SET-OFF RIGHTS. The State shall have all oits common law, equitable and statutory rights oset-off. These rights shall include, but not be

limited to, the State 's option to withhold for thepurposes of set-off any moneys due to theContractor under this contract up to any amountsdue and owing to the State with regard to thiscontract, any other contract with any Statedepartment or agency, including any contract for aterm commencing prior to the term of thiscontract, plus any amounts due and owing to theState for any other reason including, withoulimitation, tax delinquencies or monetary penaltiesrelative thereto. The State shall exercise its setoff rights in accordance with normal Statepractices including, in cases of set-off pursuant toan audit, the finalization of such audit by theState, its representatives, or the StateComptroller.

10. RECORDS. The Contractor shall establishand maintain complete and accurate books

records, documents, accounts and other evidencedirectly pertinent to performance under thiscontract (hereinafter, collectively, "the Records")The Records must be kept for the balance of thecalendar year in which they were made and for six(6) additional years thereafter. The StateComptroller, the Attorney General and any otheperson or entity authorized to conduct an examination, as SUNY and its representatives andentities involved in this contract, shall haveaccess to the Records during normal businesshours at an office of the Contractor within theState of New York or, if no such office is availableat a mutually agreeable and reasonable venuewithin the State, for the term specified above fothe purposes of inspection, auditing and copyingSUNY shall take reasonable steps to protect frompublic disclosure any of the Records which areexempt from disclosure under Section 87 of the

Public Officers Law (the "Statute") provided that

EXHIBITA

7/30/2019 Standard Contract Clauses

2/3

(i) the Contractor shall timely inform anappropriate SUNY official, in writing, that saidRecords should not be disclosed; and (ii) saidRecords shall be sufficiently identified; and (iii)designation of said Records as exempt under theStatute is reasonable. Nothing contained hereinshall diminish, or in any way adversely affect,SUNYs or the State's right to discovery in anypending or future litigation.

11. IDENTIFYING INFORMATION ANDPRIVACY NOTIFICATION.

Identification Number(s). Every invoice or NewYork State Claim for Payment submitted to theState University of New York by a payee, for

payment for the sale of goods or services or fortransactions (e.g., leases, easements, licenses,etc.) related to real or personal property mustinclude the payee's identification number. Thenumber is any or all of the following: (i) thepayees Federal employer identification number,(ii) the payees Federal social security number,and/or (iii) the payees Vendor IdentificationNumber assigned by the Statewide FinancialSystem. Failure to include such number ornumbers may delay payment. Where the payeedoes not have such number or numbers, thepayee, on its invoice or Claim for Payment, mustgive the reason or reasons why the payee doesnot have such number or numbers.

(b) Privacy Notification. (1) The authority torequest the above personal information from aseller of goods or services or a lessor of real orpersonal property, and the authority to maintainsuch information, is found in Section 5 of theState Tax Law. Disclosure of this information bythe seller or lessor to the State University of NewYork is mandatory. The principal purpose forwhich the information is collected is to enable theState to identify individuals, businesses andothers who have been delinquent in filing taxreturns or may have understated their taxliabilities and to generally identify personsaffected by the taxes administered by theCommissioner of Taxation and Finance. Theinformation will be used for tax administrationpurposes and for any other purpose authorized bylaw. (2) The personal information is requested bythe purchasing unit of the State University of NewYork contracting to purchase the goods orservices or lease the real or personal propertycovered by this contract or lease. The informationis maintained in the Statewide Financial Systemby the Vendor Management Unit within theBureau of State Expenditures, Office of the StateComptroller, 110 State Street, Albany, New York12236.

12. EQUAL EMPLOYMENT OPPORTUNITIESFOR MINORITIES AND WOMEN.(a) In accordance with Section 312 of theExecutive Lawand 5 NYCRR 143, if this contractis: (i) a written agreement or purchase orderinstrument, providing for a total expenditure inexcess of $25,000.00, whereby a contractingagency is committed to expend or does expendfunds in return for labor, services, supplies,equipment, materials or any combination of theforegoing, to be performed for, or rendered orfurnished to the contracting agency; or (ii) awritten agreement in excess of $100,000.00whereby a contracting agency is committed to

expend or does expend funds for the acquisition,construction, demolition, replacement, majorrepair or renovation of real property andimprovements thereon; or (iii) a written agreementin excess of $100,000.00 whereby the owner of aState assisted housing project is committed toexpend or does expend funds for the acquisition,construction, demolition, replacement, major re-pair or renovation of real property andimprovements thereon for such project, then thefollowing shall apply and by signing thisagreement the Contractor certifies and affirmsthat it is Contractors equal employmentopportunity policy that:

(1) The Contractor will not discriminate againstemployees or applicants for employment becauseof race, creed, color, national origin, sex, age,disability or marital status, and will undertake orcontinue existing programs of affirmative action to

ensure that minority group members and women

are afforded equal employment opportunitieswithout discrimination. Affirmative action shallmean recruitment, employment, job assignment,promotion, upgradings, demotion, transfer, layoff,or termination and rates of pay or other forms ofcompensation;

(2) at SUNYs request, Contractor shallrequest each employment agency, labor union, orauthorized representative of workers with which ithas a collective bargaining or other agreement orunderstanding, to furnish a written statement thatsuch employment agency, labor union orrepresentative will not discriminate on the basis ofrace, creed, color, national origin, sex, age,disability or marital status and that such union orrepresentative will affirmatively cooperate in the

implementation of the Contractor's obligationsherein; and

(3) Contractor shall state, in all solicitations oradvertisements for employees, that, in theperformance of the State contract, all qualifiedapplicants will be afforded equal employmentopportunities without discrimination because ofrace, creed, color, national origin, sex, age,disability or marital status.

(b) Contractor will include the provisions of "1","2" and "3", above, in every subcontract over$25,000.00 for the construction, demolition,replacement, major repair, renovation, planning ordesign of real property and improvements thereon(the "Work") except where the Work is for thebeneficial use of the Contractor. Section 312does not apply to: (i) work, goods or servicesunrelated to this contract; or (ii) employment

outside New York State. The State shall considercompliance by a Contractor or sub-contractor withthe requirements of any federal law concerningequal employment opportunity which effectuatesthe purpose of this section. SUNY shalldetermine whether the imposition of therequirements of the provisions hereof duplicate orconflict with any such federal law and if suchduplication or conflict exists, SUNY shall waivethe applicability of Section 312 to the extent ofsuch duplication or conflict. Contractor willcomply with all duly promulgated and lawful rulesand regulations of the Department of EconomicDevelopments Division of Minority and Women'sBusiness Development pertaining hereto.

13. CONFLICTING TERMS. In the event of aconflict between the terms of the contract(including any and all attachments thereto andamendments thereof) and the terms of this ExhibitA, the terms of this Exhibit A shall control.

14. GOVERNING LAW. This contract shall begoverned by the laws of the State of New Yorkexcept where the Federal supremacy clauserequires otherwise.

15. LATE PAYMENT. Timeliness of paymentand any interest to be paid to Contractor for latepayment shall be governed by Article 11-A of theState Finance Law to the extent required by law.

16. NO ARBITRATION. Disputes involving thiscontract, including the breach or alleged breachthereof, may not be submitted to bindingarbitration (except where statutorily authorized)but must, instead, be heard in a court ofcompetent jurisdiction of the State of New York.

17. SERVICE OF PROCESS. In addition to themethods of service allowed by the State CivilPractice Law & Rules ("CPLR"), Contractorhereby consents to service of process upon it byregistered or certified mail, return receiptrequested. Service hereunder shall be completeupon Contractor's actual receipt of process orupon the State's receipt of the return thereof bythe United States Postal Service as refused orundeliverable. Contractor must promptly notifythe State, in writing, of each and every change ofaddress to which service of process can be made.Service by the State to the last known addressshall be sufficient. Contractor will have thirty (30)calendar days after service hereunder is completein which to respond.

18. PROHIBITION ON PURCHASE OFTROPICAL HARDWOODS. The Contractocertifies and warrants that all wood products to beused under this contract award will be inaccordance with, but not limited to, thespecifications and provisions of State FinancLaw 165 (Use of Tropical Hardwoods), whichprohibits purchase and use of tropical hardwoodsunless specifically exempted, by the State or anygovernmental agency or political subdivision opublic benefit corporation. Qualification for aexemption under this law will be the responsibilityof the contractor to establish to meet with theapproval of the State. In addition, when anyportion of this contract involving the use of woodswhether supply or installation, is to be performed

by any subcontactor, the prime Contractor wiindicate and certify in the submitted bid proposathat the subcontractor has been informed and is incompliance with specifications and provisionsregarding use of tropical hardwoods as detailed inSection 165 of the State Finance Law. Any sucuse must meet with the approval of the Stateotherwise, the bid may not be consideredresponsive. Under bidder certification, proof oqualification for exemption will be theresponsibility of the Contractor to meet with theapproval of the State.

19. MacBRIDE FAIR EMPLOYMENT PRINCIPLES. In accordance with the MacBride FaiEmployment Principles (Chapter 807 of the Lawsof 1992) , the Contractor hereby stipulates thaContractor and any individual or legal entity in

which the Contractor holds a ten percent ogreater ownership interest and any individual olegal entity that holds a ten percent or greateownership interest in the Contractor either (ahave no business operations in Northern Irelandor (b) shall take lawful steps in good faith toconduct any business operations in NorthernIreland in accordance with the MacBride FaiEmployment Principles (as described in Section165(5) of the State Finance Law), and shall permiindependent monitoring of compliance with suchprinciples.

20. OMNIBUS PROCUREMENT ACT OF 1992.It is the policy of New York State to maximizeopportunities for the participation of New YorkState business enterprises, including minority andwomen-owned business enterprises as bidderssubcontractors and suppliers on its procuremen

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., 7th FloorAlbany, NY 12245Tel: 518-292-5100Fax: 518-292-5884email: opa@esd.ny.gov

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

NYS Department of Economic DevelopmentDivision of Minority and Womens BusinessDevelopment633 Third AvenueNew York, NY 10017212-803-2414

email: mwbecertification@esd.ny.govhttp://esd.ny.gov/MWBE/directorySearch.htm

The Omnibus Procurement Act of 1992 requiresthat by signing this bid proposal or contract, asapplicable, Contractors certify that whenever thetotal bid amount is greater than $1 million:

(a) The Contractor has made reasonableefforts to encourage the participation of New YorkState Business Enterprises as suppliers andsubcontractors, including certified minority andwomen-owned business enterprises, on thisproject, and has retained the documentation othese efforts to be provided upon request toSUNY;

(b) The Contractor has complied with the

7/30/2019 Standard Contract Clauses

3/3

Federal Equal Employment Opportunity Act of1972 (P.L. 92-261), as amended;

(c) The Contractor agrees to makereasonable efforts to provide notification to NewYork State residents of employment opportunitieson this project through listing any such positionswith the Job Search Division of the New YorkState Department of Labor, or providing suchnotification in such manner as is consistent withexisting collective bargaining contracts oragreements. The contractor agrees to documentthese efforts and to provide said documentation tothe State upon request; and

(d) The Contractor acknowledges notice that

SUNY may seek to obtain offset credits fromforeign countries as a result of this contract andagrees to cooperate with SUNY in these efforts.

21. RECIPROCITY AND SANCTIONSPROVISIONS. Bidders are hereby notified that iftheir principal place of business is located in acountry, nation, province, state or politicalsubdivision that penalizes New York Statevendors, and if the goods or services they offer willbe substantially produced or performed outsideNew York State, the Omnibus Procurement Act of1994 and 2000 amendments (Chapter 684 andChapter 383, respectively) require that they bedenied contracts which they would otherwiseobtain. Contact the NYS Department of EconomicDevelopment, Division for Small Business, 30South Pearl Street, Albany, New York 12245, fora current list of jurisdictions subject to this

provision.

22. COMPLIANCE WITH NEW YORK STATE

INFORMATION SECURITY BREACH ANDNOTIFICATION ACT. Contractor shall complywith the provisions of the New York StateInformation Security Breach and Notification Act(General Business Law Section 899-aa; StateTechnology Law Section 208).

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, computerprogramming, engineering, environmental healthand mental health services, accounting, auditing,paralegal, legal or similar services, then in

accordance with Section 163(4-g) of the StateFinance Law, the Contractor shall timely,accurately and properly comply with therequirement to submit an annual employmentreport for the contract to SUNY, the Departmentof Civil Service and the State Comptroller.

24. PURCHASES OF APPAREL ANDSPORTS EQUIPMENT. In accordance with StateFinance Law Section 165(7), SUNY maydetermine that a bidder on a contract for thepurchase of apparel or sports equipment is not aresponsible bidder as defined in State FinanceLaw Section 163 based on (a) the labor standardsapplicable to the manufacture of the apparel orsports equipment, including employeecompensation, working conditions, employeerights to form unions and the use of child labor; or(b) bidders failure to provide information sufficient

for SUNY to determine the labor conditions

applicable to the manufacture of the apparel osports equipment.

25. PROCUREMENT LOBBYING. To the extenthis agreement is a procurement contract asdefined by State Finance Law Sections 139-j and139-k, by signing this agreement the contractocertifies and affirms that all disclosures made inaccordance with State Finance Law Sections 139j and 139-k are complete, true and accurate. Inthe event such certification is found to beintentionally false or intentionally incomplete, theState may terminate the agreement by providingwritten notification to the Contractor in accordancewith the terms of the agreement.

26. CERTIFICATION OF REGISTRATION TOCOLLECT SALES AND COMPENSATING USETAX BY CERTAIN STATE CONTRACTORSAFFILIATES AND SUBCONTRACTORS. To theextent this agreement is a contract as defined byTax Law Section 5-a, if the Contractor fails tomake the certification required by Tax LawSection 5-a or if during the term of the contractthe Department of Taxation and Finance or SUNYdiscovers that the certification, made undepenalty of perjury, is false, then such failure to fileor false certification shall be a material breach othis contract and this contract may be terminatedby providing written notification to the Contractoin accordance with the terms of the agreement, iSUNY determines that such action is in the besinterests of the State.

THE FOLLOWING PROVISIONS SHALL APPLY ONLY TO THOSE CONTRACTS TO WHICH A HOSPITAL OR OTHER HEA LTH SERVICE FACILITY IS A PARTY

27. Notwithstanding any other provision in this contract, the hospital or other health service facility remains responsible for insuring that any service provided pursuant tothis contract complies with all pertinent provisions of Federal, state and local statutes, rules and regulations. In the foregoing sentence, the word "service" shall be construedto refer to the health care service rendered by the hospital or other health service facility.

28. (a) In accordance with the 1980 Omnibus Reconciliation Act (Public Law 96-499), Contractor hereby agrees that until the expiration of four years after the furnishing oservices under this agreement, Contractor shall make available upon written request to the Secretary of Health and Human Services, or upon request, to the ComptrollerGeneral of the United States or any of their duly authorized representatives, copies of this contract, books, documents and records of the Contractor that are necessary tocertify the nature and extent of the costs hereunder.

(b) If Contractor carries out any of the duties of the contract hereunder, through a subcontract having a value or cost of $10,000 or more over a twelve-month periodsuch subcontract shall contain a clause to the effect that, until the expiration of four years after the furnishing of such services pursuant to such subcontract, the subcontractorshall make available upon written request to the Secretary of Health and Human Services or upon request to the Comptroller General of the United States, or any of their dulyauthorized representatives, copies of the subcontract and books, documents and records of the subcontractor that are necessary to verify the nature and extent of the costs osuch subcontract.

(c) The provisions of this section shall apply only to such contracts as are within the definition established by the Health Care Financing Administration, as may beamended or modified from time to time.