03-26-2018 REVISED Town of Queensbury
WORKSHOP AGENDA
Monday, March 26, 2018, 7:00 PM
Supervisor's Conference Room — Town Hall
RESOLUTION AUTHORIZING ACCEPTANCE OF CONTRACT AND
GRANT FUNDS FROM NEW YORK STATE ENERGY RESEARCH AND
DEVELOPMENT AUTHORITY FOR CONTINUATION OF THE TOWN
OF QUEENSBURY SOLARIZE CAMPAIGN AND ESTABLISHING
APPROPRIATIONS AND ESTIMATED REVENUES FOR GRANT FUNDS
DISCUSSION:
• Glens Falls Collaborative (Confirmed)
7:00 — 7:15
o Rich Cirino, President
o Robin Barkenhagen, Vice President
• LGPC's Proposed Stormwater Regulations (PP)
7:15 — 8:15
o Dave Wick, Executive Director
o Committee (confirmed)
• Parks & Recreation Department: 2018
Capital Expenditure Request (Steve Lovering)
8:15 — 8:45
• Property Transfer Law
8:45 — 9:30
o Kathy Bozony
742 Boy Rood
Queensbury, NY 12804
Phone (518) 761-8229 http://www.queensbury.net
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GRANTS\Accept Funds—NYSERDA—Solarize Campaign—3-26-18
RESOLUTION AUTHORIZING ACCEPTANCE AND APPROVAL OF
NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT
AUTHORITY'S DESIGNATION AS A CLEAN ENERGY COMMUNITY,
APPLICATION FOR CLEAN ENERGY COMMUNITIES'CLEAN
ENERGY COMMUNITY GRANT, PARTICIPATION IN DESIGN AND
ADMINISTRATION OF CLEAN ENERGY COMMUNITIES' SOLARIZE
PROGRAM GRANT APPLICATION AND ACCEPTANCE OF GRANT
FUNDS AND AGREEMENT
RESOLUTION NO.: ,2018
INTRODUCED BY:
WHO MOVED ITS ADOPTION
SECONDED BY:
WHEREAS, the New York State Energy Research and Development Authority
(NYSERDA) seeks clean energy that can power New York while protecting the environment and
promotes energy efficiency and use of renewable energy sources and promotes efforts to
developing a less polluting and more reliable and affordable energy system for all New Yorkers,
and
WHEREAS, NYSERDA's efforts aim to reduce greenhouse gas emissions, accelerate
economic growth, and reduce energy bills, and
WHEREAS, NYSERDA partners with stakeholders throughout New York including
residents, business owners, developers, community leaders, local government officials, university
researchers, utility representatives, investors, and entrepreneurs to advance innovative energy
solutions in ways that improve New York's economy and environment, and
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WHEREAS, NYSERDA has developed a Clean Energy Communities program that is
designed to build a more sustainable New York and that starts with building more sustainable
communities because local governments affect energy choices in their communities, from
government operations to homes, businesses, and community institutions, and
WHEREAS, local governments in New York State can use the Clean Energy
Communities program to implement clean energy actions, save energy costs, create jobs, and
improve the environment, and
WHEREAS, NYSERDA will help provide tools, resources, and technical assistance to
participating communities, and
WHEREAS, the Clean Energy Communities program will recognize and reward
leadership for the completion of clean energy projects, and
WHEREAS, by Resolution No.: 209,2017, the Queensbury Town Board: 1) declared its
intention to participate in NYSERDA's Clean Energy Communities program and unified
permitting process, thereby increasing the Town of Queensbury's eligibility for various
incentives and grants through the New York State Energy Research and Development Authority
(NYSERDA); and 2) authorized submission of a grant application through the Streamlined
Permitting Program to allow for the Town to receive a grant award up to $2,500 from
NYSERDA for the adoption of the Unified Solar Permit Application, and
WHEREAS, by Resolution No.: 230,2017, the Town Board adopted and established its
Energy Benchmarking Policy mandating public reporting of building energy benchmarking, and
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WHEREAS, by Resolution No.: 231,2017,the Town Board authorized: 1) establishment of
the Clean Energy Communities Capital Project and Clean Energy Communities Capital Project
Fund #219 in the amount of $10,000 to establish funding for expenses associated with this
Capital Project and 2) formation of a Clean Energy Communities Committee and approved its
membership, with Kathy Bozony as paid contractor as Chairperson, and
WHEREAS, by Resolution No.: 307, 2017, the Town Board authorized acceptance of
$2,500 in grant funding from NYSERDA for the adoption of the Unified Solar Permit
Application, and
WHEREAS, the Town, with the help of its Clean Energy Communities Committee has
completed four (4) of the ten (10) High Impact Actions (Benchmarking, Clean Fleets, Unified
Solar Permit, Energy Code Enforcement Training) and is now a designated Clean Energy
Community and therefore eligible for a grant in the amount of$50,000, and
WHEREAS, in order to receive this $50,000 (no in-kind match) grant, the Town needs to
submit a proposal to NYSERDA by June 7, 2018 of what the Town intends to do with the grant.
Going forth with this proposal, the Town Board will work with the Town's Clean Energy
Communities Advisory Committee to adopt a plan that will meet NYSERDA's criteria for this
grant, that being, Direct Energy Component with the following two criteria: 1) The project
reduces Greenhouse Gases; and 2) The investment must be recouped within 20 years, and
WHEREAS, the Town has completed the following High Impact Actions: Benchmarking,
Clean Fleets, Unified Solar Permit, Energy Code Enforcement Training and now wishes to
pursue the Clean Energy Communities' Solarize campaign, and
WHEREAS, because the intent of the Solarize campaign is to increase the number of
solar installations within their municipal jurisdiction through group purchasing, locally-organized
community education and outreach, NYSERDA is willing to grant the hub municipality a $5,000
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grant to help achieve this effort, such grant monies to be used for such things as media materials
and efforts, etc. in its efforts to achieve their Solarize campaign, and
WHEREAS, Solarize is a short term, local effort that brings together groups of potential
solar customers through widespread outreach and education, and
WHEREAS, this model helps customers choose a solar installation company that is
offering competitive, transparent pricing, and
WHEREAS, historically, Solarize campaigns lower the cost of solar by 10 to 20 percent,
and
WHEREAS, residents and businesses who sign up for solar installations by a specific
deadline will be able to take advantage of group rates below market prices, and
WHEREAS, NYSERDA provides technical assistance and other tools and resources to
communities in support of Solarize campaigns, and
WHEREAS, the Town Board supports and wishes to take the lead in the development of
a Clean Energy Communities Program for the region and has entitled the effort "Southern
Adirondacks for Solar," and
WHEREAS, the Southern Adirondacks for Solar includes the Town of Queensbury as the
hub and has been joined by other communities, such as the municipalities of Bolton, Hague,
Horicon, Lake George (village and town), Glens Falls, and Warrensburg, and
NOW, THEREFORE, BE IT
RESOLVED,that the Queensbury Town Board hereby:
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1. accepts the designation of the Town of Queensbury as a Clean Energy Community;
2. authorizes an application for the Clean Energy Communities' Clean Energy Community
Grant;
3. authorizes the Clean Energy Communities Advisory Committee's participation in design
and administration of the Clean Energy Communities' Solarize Program and Grant
Application; and
4. authorizes and accepts the $5,000 in grant funding from the New York State Energy
Research and Development Authority (NYSERDA) as incentive payment for the Town's
continuation of the Queensbury Solarize Campaign, and
BE IT FURTHER,
RESOLVED, that the Town of Queensbury supports, endorses, and is committed to
participate in the Southern Adirondacks for Solar solarize campaign, and
BE IT FURTHER,
RESOLVED, that the Town of Queensbury stands ready to assist with community
outreach and education in support of the Southern Adirondacks for Solar solarize campaign, and
BE IT FURTHER,
RESOLVED, that the Town Board further establishes appropriations and estimated
revenues as follows:
• Increase Appropriations in Account No.: 219-8030-4400 by$5,000; and
• Increase Revenue in Account 219-0000-53910 by$5,000;
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and
BE IT FURTHER,
RESOLVED, that the Town Board further authorizes and directs the Town Budget Officer
to amend the Town Budget, make any adjustments, budget amendments and transfers, and/or
prepare any documentation necessary to establish such appropriations and estimated revenues and
effectuate all terms of this Resolution, and
BE IT FURTHER,
RESOLVED, that the Town Board further authorizes and directs the Town Supervisor to
sign any needed Grant Agreement in form acceptable to the Town Supervisor, Senior Planner
and/or Town Counsel, and/or any other documentation, and further authorizes and directs the Town
Supervisor, Senior Planner, Town Counsel and/or Town Budget Officer to take such other and
further action necessary to effectuate the terms of this Resolution.
Duly adopted this 26th day of March, 2018, by the following vote:
AYES:
NOES:
ABSENT:
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'4EW YORK NY-Sun
STATE OF
OPPORTUNITY_
Attachment B
Contract ID:xxxx
New York State Energy Research and Development Authority
("NYSERDA")
Solarize Agreement
2018 Solarize Campaign
The undersigned,an authorized representative of the community project team (the"Project
Team"), agrees to all terms and conditions outlined in this agreement and the Solarize Program
requirements. This Agreement includes Exhibits A (Final Application) B (Standard Terms and
Conditions for All NYSERDA Agreements)and C (Prompt Payment Policy Statement).
This Project has been determined to be eligible for an award of$5,000. That amount will be paid
in full upon the selection of a solar installer(s),along with a scheduled public launch of the
project.
1.NYSERDA-Solarize Campaign
The Project Team agrees to undertake a local"Solarize"community purchasing campaign(the
"Solarize campaign") in order to drive community adoption of PV projects. Solar customers
engaged by the Solarize campaign will be served by a solar installer or installers (the"Installer(s)")
selected though a competitive process in accordance with the program requirements.
2.Marketing and Media
a) NYSERDA will provide the Project Team with marketing materials (the"Materials")and
related in-kind services.The Materials will be specific to Solarize and will assist the Project
Team with its education,outreach and marketing efforts in order to increase attendance at
local education events and participation in the Solarize campaign.
b) NYSERDA will cooperate with the Project Team in"naming"the campaign,and in the use by
the Project Team of the term"Solarize."
c) The Project Team will request approval from NYSERDA for all marketing materials
developed by the Project Team that reference NYSERDA,NY-Sun,or Community Solar NY in
advance of distribution.The Project Team agrees to include any NYSERDA or Installer(s)
logos deemed necessary by NYSERDA on any materials used in the Solarize campaign.
d) The Project Team will notify NYSERDA in advance and collaborate with NYSERDA on any
press releases,events,or news conference concerning the Solarize campaign.All media
produced by the Project Team is subject to NYSERDA approval.In any media produced by
the Project Team,the Project Team will not represent that positions taken or advanced by it
represent the opinion or position of NYSERDA.
3.Project Team Commitment and Deliverables
The Project Team agrees that it shall:
a) Cooperate and collaborate with NYSERDA,communicating with NYSERDA through the designated Project Lead.
b) Cooperate and collaborate with the selected Installer(s)and all public entities,civic groups,and volunteers
that are participating in community outreach,engagement,and education.
c) Cooperate with NYSERDA in finalizing the"name"of the Solarize campaign and the use of the term"Solarize."
d) Provide a detailed outreach plan and budget for the duration of campaign.
Installer Selection
Select the Installer(s)through a competitive process using program templates and guidelines,or that is otherwise
reviewed and approved by NYSERDA.
Community Marketing
a) Undertake an intensive multi-week community marketing campaign utilizing the provided materials and working
with a wide range of partners and outreach methods.
b) Organize community education events dedicated to the Solarize campaign with participation by the
Installer.
Participant Sign-up and Tracking
a)Register interested solar customers through the campaign website or other approved method,and transmit
customer contact information and site characteristics to Installer.Record method of participant engagement.
b)Coordinate with Installer(s)to track customer progress through the solar assessment and contracting
process.
Reporting and Sharing
a)Provide NYSERDA with summary reports of program activities and customer sign-ups and progress through
the solar process.
b)Provide feedback at the end of the campaign to assist NYSERDA in the analysis of different outreach
strategies.
c) Participate in NYSERDA program marketing,such as videos,case studies,and regional events.
ACCEPTANCE OF THIS AGREEMENT SHALL NOT BECOME EFFECTIVE UNLESS EXECUTED BELOW BY
NYSERDA.
SUPPLIER NAME NEW YORK STATE ENERGY RESEARCH AND
DEVELOPMENT AUTHORITY
By By
Cheryl M. Glanton
Name Director of Contract Management
Title
EXHIBIT A
REVISED 5/12
STANDARD TERMS AND CONDITIONS
FOR ALL NYSERDA AGREEMENTS
(Based on Standard Clauses for New York State Contracts and Tax Law Section 5-a)
The parties to the Agreement agree to be bound by the following clauses which are hereby
made a part of the Agreement:
1. 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 because of race, creed, color, sex, national
origin, sexual orientation, age, disability, genetic predisposition or carrier status, or marital
status. Furthermore, in accordance with Section 220-e of the Labor Law, if this is an Agreement
for the construction, alteration or repair of any public building or public work or for the
manufacture, sale or distribution of materials, equipment or supplies, and to the extent that this
Agreement 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 Agreement. If this is a building service Agreement 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
Agreement and forfeiture of all moneys due hereunder for a second subsequent violation.
2. WAGE AND HOURS PROVISIONS. If this is a public work Agreement covered by
Article 8 of the Labor Law or a building service Agreement 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 NYSERDA of any NYSERDA-approved sums due and owing for work done
upon the project.
3. NON-COLLUSIVE BIDDING REQUIREMENT. In accordance with Section 2878 of
the Public Authorities Law, if this Agreement was awarded based upon the submission of bids,
Contractor warrants, under penalty of perjury, that its bid was arrived at independently and
without collusion aimed at restricting competition. Contractor further warrants that, at the time
Contractor submitted its bid, an authorized and responsible person executed and delivered to
NYSERDA a non-collusive bidding certification on Contractor's behalf.
4. INTERNATIONAL BOYCOTT PROHIBITION. If this Agreement exceeds $5,000, the
Contractor agrees, as a material condition of the Agreement,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
Agreement's execution, such Agreement, amendment or modification thereto shall be rendered
forfeit and void. The Contractor shall so notify NYSERDA within five (5) business days of such
conviction, determination or disposition of appeal. (See and compare Section 220-f of the Labor
Law, Section 139-h of the State Finance Law, and 2 NYCRR 105.4).
5. SET-OFF RIGHTS. NYSERDA shall have all of its common law and statutory rights of
set-off. These rights shall include, but not be limited to, NYSERDA's option to withhold for the
purposes of set-off any moneys due to the Contractor under this Agreement up to any amounts
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due and owing to NYSERDA with regard to this Agreement, any other Agreement, including
any Agreement for a term commencing prior to the term of this Agreement,plus any amounts
due and owing to NYSERDA for any other reason including, without limitation,tax
delinquencies,fee delinquencies or monetary penalties relative thereto.
6. PROPRIETARY INFORMATION. Notwithstanding any provisions to the contrary in
the Agreement, Contractor and NYSERDA acknowledge and agree that all information, in any
format, submitted to NYSERDA shall be subject to and treated in accordance with the NYS
Freedom of Information Law("FOIL," Public Officers Law, Article 6). Pursuant to FOIL,
NYSERDA is required to make available to the public, upon request, records or portions thereof
which it possesses, unless that information is statutorily exempt from disclosure. Therefore,
unless the Agreement specifically requires otherwise, Contractor should submit information to
NYSERDA in a non-confidential, non-proprietary format. FOIL does provide that NYSERDA
may deny access to records or portions thereof that"are trade secrets or are submitted to an
agency by a commercial enterprise or derived from information obtained from a commercial
enterprise and which if disclosed would cause substantial injury to the competitive position of
the subject enterprise." [See Public Officers Law, § 87(2)(d)]. Accordingly, if the Agreement
specifically requires submission of information in a format Contractor considers a proprietary
and/or confidential trade secret, Contractor shall fully identify and plainly label the information
"confidential"or"proprietary"at the time of disclosure. By so marking such information,
Contractor represents that the information has actual or potential specific commercial or
competitive value to the competitors of Contractor. Without limitation, information will not be
considered confidential or proprietary if it is or has been (i) generally known or available from
other sources without obligation concerning its confidentiality; (ii) made available by the owner
to others without obligation concerning its confidentiality; or(iii) already available to
NYSERDA without obligation concerning its confidentiality. In the event of a FOIL request, it
is NYSERDA's policy to consider records as marked above pursuant to the trade secret
exemption procedure set forth in 21 New York Codes Rules &Regulations § 501.6 and any
other applicable law or regulation. However,NYSERDA cannot guarantee the confidentiality of
any information submitted. More information on FOIL, and the relevant statutory law and
regulations,can be found at the website for the Committee on Open Government
(http://www.dos.state.ny.us/coog/foil2.html) and NYSERDA's Regulations, Part 501
http://www.nyserda.nv.gov/About/New-York-State-Regulations.aspx
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7. IDENTIFYING INFORMATION AND PRIVACY NOTIFICATION. (a) FEDERAL
EMPLOYER IDENTIFICATION NUMBER and/or FEDERAL SOCIAL SECURITY
NUMBER. As a condition to NYSERDA's obligation to pay any invoices submitted by
Contractor pursuant to this Agreement, Contractor shall provide to NYSERDA its Federal
employer identification number or Federal social security number, or both such numbers when
the Contractor has both such numbers. Where the Contractor does not have such number or
numbers,the Contractor must give the reason or reasons why the payee does not have such
number or numbers.
(b)PRIVACY NOTIFICATION. 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 Contractor 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.
8. CONFLICTING TERMS. In the event of a conflict between the terms of the Agreement
(including any and all attachments thereto and amendments thereof) and the terms of this Exhibit
C,the terms of this Exhibit C shall control.
9. GOVERNING LAW. This Agreement shall be governed by the laws of the State of
New York except where the Federal supremacy clause requires otherwise.
10. NO ARBITRATION. Disputes involving this Agreement, including the breach or
alleged breach thereof, may not be submitted to binding arbitration (except where statutorily
required) without the NYSERDA's written consent, but must, instead, be heard in a court of
competent jurisdiction of the State of New York.
11. SERVICE OF PROCESS. In addition to the methods of service allowed by the State
Civil Practice Law and 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 NYSERDA's receipt of the return thereof by
the United States Postal Service as refused or undeliverable. Contractor must promptly notify
NYSERDA, in writing, of each and every change of address to which service of process can be
made. Service by NYSERDA to the last known address shall be sufficient. Contractor will have
thirty(30) calendar days after service hereunder is complete in which to respond.
12. CRIMINAL ACTIVITY. If subsequent to the effectiveness of this Agreement,
NYSERDA comes to know of any allegation previously unknown to it that the Contractor or any
of its principals is under indictment for a felony,or has been, within five(5) years prior to
submission of the Contractor's proposal to NYSERDA, convicted of a felony, under the laws of
the United States or Territory of the United States, then NYSERDA may exercise its stop work
right under this Agreement. If subsequent to the effectiveness of this Agreement,NYSERDA
comes to know of the fact, previously unknown to it, that Contractor or any of its principals is
under such indictment or has been so convicted,then NYSERDA may exercise its right to
terminate this Agreement. If the Contractor knowingly withheld information about such an
indictment or conviction,NYSERDA may declare the Agreement null and void and may seek
legal remedies against the Contractor and its principals. The Contractor or its principals may
also be subject to penalties for any violation of law which may apply in the particular
circumstances. For a Contractor which is an association, partnership, corporation, or other
organization, the provisions of this paragraph apply to any such indictment or conviction of the
organization itself or any of its officers, partners, or directors or members of any similar
governing body, as applicable.
13. PERMITS. It is the responsibility of the Contractor to acquire and maintain, at its own
cost, any and all permits, licenses, easements, waivers and permissions of every nature necessary
to perform the work.
14. PROHIBITION ON PURCHASE OF TROPICAL HARDWOODS. The Contractor
certifies and warrants that all wood products to be used under this Agreement will be in
accordance with, but not limited to,the specifications and provisions of State Finance Law
Section 165 (Use of Tropical Hardwoods), which prohibits purchase and use of tropical
hardwoods, unless specifically exempted by NYSERDA.
15. 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
625 Broadway
Albany,New York 12207
Telephone: 518-292-5200
Fax: 518-292-5884
http://www.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
625 Broadway
Albany,New York 12207
Telephone: 518-292-5200
Fax: 518-292-5803
http://www.empire.state.ny.us
The Omnibus Procurement Act of 1992 requires that by signing this Agreement, Contractors
certify that whenever the total amount is greater than $1 million:
(a)The Contractor has made reasonable efforts to encourage the participation of New York
State Business Enterprises as suppliers and subcontractors, including certified minority and
women-owned business enterprises, on this project, and has retained the documentation of these
efforts to be provided upon request to the State;
(b)The Contractor has complied with the Federal Equal Opportunity Act of 1972 (P.L. 92-
261), as amended;
(c)The Contractor agrees to make reasonable efforts to provide notification to New York
State residents of employment opportunities on this project through listing any such positions
with the Job Service Division of the New York State Department of Labor, or providing such
notification in such manner as is consistent with existing collective bargaining contracts or
agreements. The Contractor agrees to document these efforts and to provide said documentation
to the State upon request; and
(d)The Contractor acknowledges notice that the State may seek to obtain offset credits from
foreign countries as a result of this contract and agrees to cooperate with the State in these
efforts.
16. 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) require that they be
denied contracts which they would otherwise obtain.NOTE:As of May 15, 2002, the list of
discriminatory jurisdictions subject to this provision includes the states of South Carolina,
Alaska, West Virginia, Wyoming, Louisiana and Hawaii. Contact NYS Department of
Economic Development for a current list of jurisdictions subject to this provision.
17. 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 Section 899-aa;
State Technology Law Section 208).
18. PROCUREMENT LOBBYING. To the extent this Agreement is a"procurement
contract"as defined by State Finance Law Sections 139-j and 139-k, by signing this Agreement
the Contractor certifies and affirms that all disclosures made in accordance with State Finance
Law Sections 139-j and 139-k are complete,true and accurate. In the event such certification is
found to be intentionally false or intentionally incomplete,NYSERDA may terminate the
agreement by providing written notification to the Contractor in accordance with the terms of the
agreement.
19. COMPLIANCE WITH TAX LAW SECTION 5-a. The following provisions apply to
Contractors that have entered into agreements in an amount exceeding$100,000 for the purchase
of goods and services:
a) Before such agreement can take effect, the Contractor must have on file with the New
York State Department of Taxation and Finance a Contractor Certification form (ST-220-
TD).
b) Prior to entering into such an agreement,the Contractor is required to provide
NYSERDA with a completed Contractor Certification to Covered Agency form (Form
ST-220-CA).
c) Prior to any renewal period (if applicable)under the agreement,the Contractor is required
to provide NYSERDA with a completed Form ST-220-CA.
Certifications referenced in paragraphs (b) and (c) above will be maintained by NYSERDA and
made a part hereof and incorporated herein by reference.
NYSERDA reserves the right to terminate this agreement in the event it is found that the
certification filed by the Contractor in accordance with Tax Law Section 5-a was false when
made.
20. IRANIAN ENERGY SECTOR DIVESTMENT. In accordance with Section 2879-c
of the Public Authorities Law, by signing this contract, each person and each person signing on
behalf of any other party certifies, and in the case of a joint bid or partnership each party thereto
certifies as to its own organization, under penalty of perjury, that to the best of its knowledge and
belief that each person is not on the list created pursuant to paragraph (b)of subdivision 3 of
section 165-a of the State Finance Law (See www.ogs.ny.gov/about/regs/ida.asp).
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EXHIBIT B
NYSERDA PROMPT PAYMENT POLICY STATEMENT
504.1. Purpose and Applicability. (a) The purpose of this Exhibit is to provide a
description of Part 504 of NYSERDA's regulations, which consists of NYSERDA's policy for
making payment promptly on amounts properly due and owing by NYSERDA under this
Agreement. The section numbers used in this document correspond to the section numbers
appearing in Part 504 of the regulations.'
(b) This Exhibit applies generally to payments due and owing by the NYSERDA to the
Contractor pursuant to this Agreement. However, this Exhibit does not apply to Payments due
and owing when NYSERDA is exercising a Set-Off against all or part of the Payment, or if a
State or Federal law, rule or regulation specifically requires otherwise.
504.2. Definitions. Capitalized terms not otherwise defined in this Exhibit shall have the
same meaning as set forth earlier in this Agreement. In addition to said terms, the following
terms shall have the following meanings, unless the context shall indicate another or different
meaning or intent:
(a) "Date of Payment" means the date on which NYSERDA requisitions a check from its
statutory fiscal agent,the Department of Taxation and Finance, to make a Payment.
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(b) "Designated Payment Office"means the Office of NYSERDA's Controller, located
at 17 Columbia Circle,Albany,New York 12203.
(c) "Payment"means payment properly due and owing to Contractor pursuant to Article
1 This is only a summary;the full text of Part 504 can be accessed at:
http://www.nyserda.ny.gov/About/New-York-State-Regulations.aspx
IV, Exhibit B of this Agreement.
(d) "Prompt Payment" means a Payment within the time periods applicable pursuant to
Sections 504.3 through 504.5 of this Exhibit in order for NYSERDA not to be liable for interest
pursuant to Section 504.6.
(e) "Payment Due Date" means the date by which the Date of Payment must occur, in
accordance with the provisions of Sections 504.3 through 504.5 of this Exhibit, in order for
NYSERDA not to be liable for interest pursuant to Section 504.6.
(f) "Proper Invoice" means a written request for Payment that is submitted by a
Contractor setting forth the description, price or cost, and quantity of goods,property or
services delivered or rendered, in such form, and supported by such other substantiating
documentation, as NYSERDA may reasonably require, including but not limited to any
requirements set forth in Exhibits A or B to this Agreement; and addressed to NYSERDA's
Controller, marked "Attention: Accounts Payable,"at the Designated Payment Office.
(g)(1) "Receipt of an Invoice" means:
(i) if the Payment is one for which an invoice is required,the later of:
(a) the date on which a Proper Invoice is actually received in the
Designated Payment Office during normal business hours; or
(b) the date by which, during normal business hours, NYSERDA has
actually received all the purchased goods, property or services covered by a
Proper Invoice previously received in the Designated Payment Office.
(ii) if the Agreement provides that a Payment will be made on a specific date or
at a predetermined interval, without having to submit a written invoice the 30th calendar
day, excluding legal holidays, before the date so specified or predetermined.
(2) For purposes of this subdivision, if the Agreement requires a multifaceted,
completed or working system, or delivery of no less than a specified quantity of goods,property
or services and only a portion of such systems or less than the required goods,property or
services are working, completed or delivered, even though the Contractor has invoiced
NYSERDA for the portion working, completed or delivered, NYSERDA will not be in Receipt
of an Invoice until the specified minimum amount of the systems, goods,property or services are
working, completed or delivered.
(h) "Set-off' means the reduction by NYSERDA of a payment due a Contractor by an
amount equal to the amount of an unpaid legally enforceable debt owed by the Contractor to
NYSERDA.
504.3. Prompt Payment Schedule. Except as otherwise provided by law or regulation or
in Sections 504.4 and 504.5 of this Exhibit,the Date of Payment by NYSERDA of an amount
properly due and owing under this Agreement shall be no later than thirty(30) calendar days,
excluding legal holidays, after Receipt of a Proper Invoice.
504.4. Payment Procedures.
(a) Unless otherwise specified in this Agreement, a Proper Invoice submitted by the
Contractor to the Designated Payment Office shall be required to initiate payment for goods,
property or services. As soon as any invoice is received in the Designated Payment Office
during normal business hours, such invoice shall be date-stamped. The invoice shall then
promptly be reviewed by NYSERDA.
(b) NYSERDA shall notify the Contractor within fifteen (15) calendar days after Receipt
of an Invoice of:
(1) any defects in the delivered goods, property or services;
(2) any defects in the invoice; or
(3) suspected improprieties of any kind.
(c) The existence of any defects or suspected improprieties shall prevent the
commencement of the time period specified in Section 504.3 until any such defects or
improprieties are corrected or otherwise resolved.
(d) If NYSERDA fails to notify a Contractor of a defect or impropriety within the
fifteen (15) calendar day period specified in subdivision (b) of this section,the sole effect shall
be that the number of days allowed for Payment shall be reduced by the number of days
between the 15th day and the day that notification was transmitted to the Contractor. If
NYSERDA fails to provide reasonable grounds for its contention that a defect or impropriety
exists,the sole effect shall be that the Payment Due Date shall be calculated using the original
date of Receipt of an Invoice.
(e) In the absence of any defect or suspected impropriety, or upon satisfactory correction
or resolution of a defect or suspected impropriety, NYSERDA shall make Payment, consistent
with any such correction or resolution and the provisions of this Exhibit.
504.5. Exceptions and Extension of Payment Due Date. NYSERDA has determined
that, notwithstanding the provisions of Sections 504.3 and 504.4 of this Exhibit, any of the
following facts or circumstances, which may occur concurrently or consecutively, reasonably
justify extension of the Payment Due Date:
(a) If this Agreement provides Payment will be made on a specific date or at a
predetermined interval, without having to submit a written invoice, if any documentation,
supporting data,performance verification, or notice specifically required by this Agreement or
other State or Federal mandate has not been submitted to NYSERDA on a timely basis,then the
Payment Due Date shall be extended by the number of calendar days from the date by which all
such matter was to be submitted to NYSERDA and the date when NYSERDA has actually
received such matter.
(b) If an inspection or testing period,performance verification,audit or other review or
documentation independent of the Contractor is specifically required by this Agreement or by
other State or Federal mandate, whether to be performed by or on behalf of NYSERDA or
another entity, or is specifically permitted by this Agreement or by other State or Federal
provision and NYSERDA or other entity with the right to do so elects to have such activity or
documentation undertaken, then the Payment Due Date shall be extended by the number of
calendar days from the date of Receipt of an Invoice to the date when any such activity or
documentation has been completed,NYSERDA has actually received the results of such
activity or documentation conducted by another entity, and any deficiencies identified or issues
raised as a result of such activity or documentation have been corrected or otherwise resolved.
(c) If an invoice must be examined by a State or Federal agency, or by another party
contributing to the funding of the Contract,prior to Payment,then the Payment Due Date shall
be extended by the number of calendar days from the date of Receipt of an Invoice to the date
when the State or Federal agency, or other contributing party to the Contract, has completed the
inspection, advised NYSERDA of the results of the inspection, and any deficiencies identified
or issues raised as a result of such inspection have been corrected or otherwise resolved.
(d) If appropriated funds from which Payment is to be made have not yet been
appropriated or, if appropriated, not yet been made available to NYSERDA, then the Payment
Due Date shall be extended by the number of calendar days from the date of Receipt of an
Invoice to the date when such funds are made available to NYSERDA.
504.6. Interest Eligibility and Computation. If NYSERDA fails to make Prompt
Payment,NYSERDA shall pay interest to the Contractor on the Payment when such interest
computed as provided herein is equal to or more than ten dollars ($10.00). Interest shall be
computed and accrue at the daily rate in effect on the Date of Payment, as set by the New York
State Tax Commission for corporate taxes pursuant to Section 1096(e)(1) of the Tax Law.
Interest on such a Payment shall be computed for the period beginning on the day after the
Payment Due Date and ending on the Date of Payment.
504.7. Sources of Funds to Pay Interest. Any interest payable by NYSERDA pursuant to
Exhibit shall be paid only from the same accounts, funds, or appropriations that are lawfully
available to make the related Payment.
504.8. Incorporation of Prompt Payment Policy Statement into Contracts. The
provisions of this Exhibit shall apply to all Payments as they become due and owing pursuant to
the terms and conditions of this Agreement, notwithstanding that NYSERDA may subsequently
amend its Prompt Payment Policy by further rulemaking.
504.9. Notice of Objection. Contractor may object to any action taken by NYSERDA
pursuant to this Exhibit that prevents the commencement of the time in which interest will be
paid by submitting a written notice of objection to NYSERDA. Such notice shall be signed and
dated and concisely and clearly set forth the basis for the objection and be addressed to the Vice
President,New York State Energy Research and Development Authority, at the notice address
set forth in Exhibit B to this Agreement. The Vice President of NYSERDA, or his or her
designee, shall review the objection for purposes of affirming or modifying NYSERDA's
action. Within fifteen (15)working days of the receipt of the objection, the Vice President, or
his or her designee, shall notify the Contractor either that NYSERDA's action is affirmed or
that it is modified or that, due to the complexity of the issue, additional time is needed to
conduct the review; provided, however, in no event shall the extended review period exceed
thirty(30) working days.
504.10. Judicial Review. Any determination made by NYSERDA pursuant to this
Exhibit that prevents the commencement of the time in which interest will be paid is subject to
judicial review in a proceeding pursuant to Article 78 of the Civil Practice Law and Rules.
Such proceedings shall only be commenced upon completion of the review procedure specified
in Section 504.9 of this Exhibit or any other review procedure that may be specified in this
Agreement or by other law, rule, or regulation.
504.11. Court Action or Other Legal Processes.
(a) Notwithstanding any other law to the contrary, the liability of NYSERDA to make an
interest payment to a Contractor pursuant to this Exhibit shall not extend beyond the date of a
notice of intention to file a claim, the date of a notice of a claim, or the date commencing a legal
action for the payment of such interest, whichever occurs first.
(b) With respect to the court action or other legal processes referred to in subdivision (a)
of this section,any interest obligation incurred by NYSERDA after the date specified therein
pursuant to any provision of law other than Public Authorities Law Section 2880 shall be
determined as prescribed by such separate provision of law, shall be paid as directed by the
court, and shall be paid from any source of funds available for that purpose.