Current through Register Vol. 46, No. 12, March 20, 2024
ARTICLE I
RELATION OF CONSULTANT TO UDC
1.1 SUPERVISION BY UDC. The services to be
performed by Consultant under this Agreement shall be subject to the general
supervision and direction of UDC provided that neither UDC's exercise nor
failure to exercise such supervision and direction shall relieve the Consultant
of any of its obligations or responsibilities for its acts or failure to act in
regard to this Agreement.
1.2
CONSULTANT'S PERSONNEL. The Consultant shall designate in writing to UDC one
individual, satisfactory to UDC, who shall be responsible for coordinating all
of the services to be rendered by the Consultant and who shall be UDC's normal
point of contact with the Consultant on matters relating to such services. Such
individual shall be replaced upon UDC's written request.
1.3 APPROVAL OF SUBCONSULTANTS. The
Consultant shall not employ, contract with or use the services of any
consultant, special contractors, or other third parties (collectively
"Subconsultant") in connection with the performance of its obligations under
this Agreement without the prior written consent of UDC. The Consultant shall
inform UDC in writing of the name, proposed service to be rendered, and
compensation of the Subconsultant, and of any interest it may have in the
proposed Subconsultant.
1.4
CONSULTANT AS INDEPENDENT CONTRACTOR. Notwithstanding any other provisions of
this Agreement, the Consultant's status (and that of any Subconsultant) shall
be that of an independent contractor and not that of an agent or employee of
UDC. Accordingly, neither the Consultant nor any Subconsultant shall hold
itself out as, or claim to be acting in the capacity of an employee, or agent
of UDC.
1.5 UDC'S REPRESENTATIVE.
UDC will designate in writing to the Consultant an individual who will serve as
UDC's Representative and normal point of contact for the Consultant in regard
to this Agreement and the Consultant's services and obligations hereunder. UDC
may from time to time change this designation by written notification to the
Consultant.
1.6 APPROVALS OR
ACCEPTANCE BY UDC. Whenever action is to be taken, or approval or acceptance
given, by UDC, such action, approval or acceptance shall be deemed to have been
taken or given only if so taken or given by UDC's Representative, by the
official of UDC who signed this Agreement on behalf of UDC, or by another
officer or employee of UDC duly designated by such signing officer to represent
UDC in connection therewith. UDC shall notify the Consultant of the giving or
withholding of each such approval or acceptance within a reasonable period of
time. UDC's acceptance or approval of any specifications, drawings, plans,
reports or other materials prepared by the Consultant hereunder shall in no way
relieve the Consultant of responsibility for such materials.
1.7 CONFLICT-OF-INTEREST. The Consultant
represents that:
(a) The Consultant has not
now, and will not acquire, any interest, direct or indirect, present or
prospective, in the project to which the Consultant's work relates or the real
estate which is the subject of the project, or in the immediate vicinity
thereof and has not employed and will not knowingly employ in connection with
work to be performed hereunder any person or entity having any such interest
during the term of this Agreement.
(b) No officer, employee, agent or director
of UDC, or any of its subsidiaries shall be permitted to share in any benefit
to arise herefrom.
(c) No officer,
employee, agent or director of UDC, or any of its subsidiaries shall
participate in any decision relating to this Agreement which affects his
personal interest or the interests of any corporation, partnership, or
association in which he is directly or indirectly interested; nor shall any
officer, agent, director or employee of UDC, or any of its subsidiaries have
any interest, direct or indirect, in this Agreement or the proceedings
thereof.
(d) The Consultant shall
cause, for the benefit of UDC, every contract or agreement with any
Subcontractor to include the representations contained in subsections (a), (b),
(c) of this Section
1.7.
The Consultant will take such action in enforcing such provisions as UDC may
direct, or, at its option, assign such rights as it may have to UDC for
enforcement by UDC.
1.8
NO BROKER. The Consultant represents that it has not employed any person,
corporation or partnership, to solicit or procure this Agreement, and has not
made, and will not make, any payment or agreement for the payment of any
commission, percentage, brokerage or contingent fee, or other compensation in
connection with the procurement of this Agreement.
1.9 NOTICE OF OVERRUNS AND DELAYS. The
Consultant shall promptly give written notice to the UDC Representative of the
occurrence of an event or action, the discovery of a condition or the failure
of an event or action to occur or a condition to exist as anticipated, which
may result in an increase in (a) the Compensation due Consultant; (b)
reimbursable expenses and/or (c) the number of hours necessary to perform the
work. The Consultant shall promptly give written notice to the UDC
Representative of the occurrence of an event or action, or the discovery of a
condition, or the failure of an event or action to occur or a condition to
exist as anticipated, which may delay completion of the work (or extend the
Completion Date).
ARTICLE
II
DOCUMENTS AND RECORDS
2.1 OWNERSHIP OF DOCUMENTS AND OTHER
MATERIALS. All originals and negatives of all plans, drawings, reports,
photograph, charts, programs, models, specimens, specifications, and other
documents or materials required to be furnished by the Consultant under this
Agreement including drafts and reproduction copies thereof, shall be and remain
the exclusive property of UDC, and UDC shall have the right to publish,
transfer, sell, license and use all or any part of such reports, plans,
drawings, specification and other documents without payment of any additional
royalty, charge or other compensation to the Consultant. Upon request of UDC
during any stage of the work, Consultant shall deliver all such materials to
UDC.
The Consultant agrees that it shall not publish, transfer,
license or, except in connection with carrying out its obligations under this
Agreement, use or reuse all or any part of such reports and other documents,
including working papers, without the prior written approval of UDC, except
that Consultant may retain copies of such reports and other documents for
general reference use.
2.2
MAINTENANCE OF RECORDS. The Consultant shall, until three years after
completion of its services hereunder or termination of this Agreement by UDC,
maintain and shall require each Subconsultant to maintain (a) complete and
correct records of time spent by Consultant (and Subcontractor) in the
performance of its obligations under this Agreement and (b) complete and
correct books and records relating to all out-of- pocket expenses incurred
under this Agreement, including, without limitation, accurate cost and
accounting records specifically identifying the costs incurred by Consultant
(and Subconsultant) in performing such obligations. Said time records shall
specify the dates and numbers of hours or portions thereof spent by Consultant
(and Subconsultant) in performing its obligations hereunder. Consultant shall
make such books and records available to UDC or its authorized representatives
for review and audit at all such reasonable times as UDC shall from time to
time request. Consultant shall submit duplicate copies of time records and
substantiation of out -of-pocket expenses at the time of submission of
Consultant invoices in accordance with this Agreement.
ARTICLE III
TERMINATION
3.1 DEFAULT BY CONSULTANT. If any material
representation made by the Consultant in this Agreement shall prove to be false
or misleading in any material respect, or if the Consultant shall default in
the timely performance of any of its obligations under this Agreement and such
default shall continue for a period of three (3) days after written notice from
UDC specifying the occurrence, omission or failure giving rise to such default,
or if, in the opinion of UDC, by reason of the nature of such default, such
default cannot be cured within such three (3) day period, then if the
Consultant shall not within such period commence with due diligence the curing
of such default and thereafter prosecute and complete the curing of such
default as promptly as possible, except that UDC shall not be required to give
Consultant such written notice and Consultant shall not have such right to cure
for Consultant's failure to comply with Section
1.9
hereof, UDC, in addition to any other remedies or claims it may have with
respect to such representation or such default may terminate this Agreement
immediately upon verbal or written notice to the Consultant. In the event of
such termination, UDC, without waiving any such remedy or claims, (including
consequential damages) shall not be required to pay the Consultant any portion
of the fee specified in this Agreement remaining to be paid for which valid
vouchers have not been submitted pursuant to this Agreement on or before the
date of UDC's notice of termination.
3.2 OPTIONAL TERMINATION BY UDC. UDC at any
time, in its sole discretion, may terminate this Agreement or postpone, delay,
all or any part of the Agreement upon written notice to the Consultant. In the
event of such termination, postponement, or delay, UDC shall pay the Consultant
for professional time and out-of-pocket expenses incurred by Consultant to the
date notice of such action is received by Consultant. The Consultant agrees to
cause any agreement or contract entered into by Consultant with any
Subconsultant to provide for an optional termination by Consultant similar to
the provision of this Section
3.2.
ARTICLE IV
PROVISIONS REQUIRED BY LAW
4.1 CONSULTANT TO COMPLY WITH LEGAL
REQUIREMENTS. The Consultant in performing its obligations and in preparing all
documents required under this Agreement shall comply with all applicable laws
and regulations. All provisions required by such laws and regulations to be
included in this Agreement shall be deemed to be included in this Agreement
with the same effect as if set forth in full.
4.2 CONSULTANT TO OBTAIN PERMITS, ETC. Except
as otherwise instructed in writing by UDC, the Consultant shall obtain and
comply with all legally required licenses, consents, approvals, orders,
authorizations, permits, restrictions, declarations and filings required to be
obtained by UDC or the Consultant in connection with this Agreement.
4.3 WORKERS' COMPENSATION INSURANCE. The
Consultant agrees that:
(a) It will secure
Workers' compensation and disability insurance and keep insured during the life
of this Agreement such employees as are required to be insured by the
provisions of Chapter 41 of the Laws of 1914, as amended, known as the Workers'
Compensation Law; and
(b) This
Agreement shall be voidable at the election of UDC and of no effect unless the
Consultant complies with this provision.
4.4 NO ASSIGNMENT WITHOUT CONSENT. The
Consultant agrees that:
(a) It is prohibited
from assigning, transferring or otherwise disposing of this Agreement, or of
its rights or interests therein, or its power to execute such agreement to any
person, company, partnership, or corporation, without the previous written
consent of UDC;
(b) If the
prohibition of Section
4.4(a)
be violated, UDC may revoke and annul this Agreement and UDC shall be relieved
from any and all liability and obligations thereunder to the Consultant and to
the person, company, partnership or corporation to whom such assignment,
transfer or other disposal shall have been made and the Consultant and such
assignee or transferee shall forfeit and lose all the money theretofor earned
under this Agreement.
4.5 NON-DISCRIMINATION. The Consultant during
the performance of this Agreement, specifically agrees that:
(a) The Consultant will not discriminate
against any employee or applicant for employment because of race, creed, color,
sex, national origin, age, disability or marital status.
(b) If directed to do so by the New York
State Commissioner of Human Rights ("Commission") or UDC the Consultant will
send to each labor union or representative of workers with which the Consultant
has or is bound by a collective bargaining or other agreement or understanding,
a notice, to be provided by the Commissioner, advising such labor union or
representative of the Consultant's agreement under clauses (a) through (g)
(hereinafter called "non-discrimination clauses"). If the Consultant was
directed to do so by UDC as part of the bid or negotiation of this Agreement,
the Consultant shall request such labor union or representative to furnish a
written statement that such labor union or representative will not discriminate
because of race, creed, color, sex, national origin, age, disability or marital
status, and that such labor union or representative will cooperate, within the
limits of its legal and contractual authority, in the implementation of the
policy and provisions and these non-discrimination clauses and that it consents
and agrees that recruitment, employment and the terms and conditions of
employment under this Agreement shall be in accordance with the purposes and
provisions of these non-discrimination clauses. If such labor union or
representative fails or refuses to comply with such a request that it furnish
such a statement, the Consultant shall promptly notify the Commissioner of such
failure or refusal.
(c) If directed
to do so by the Commissioner or UDC, the Consultant will post and keep posted
in conspicuous places, available to employees and applicants for employment,
notices, to be provided by the Commissioner, setting forth the substance of the
provisions of clauses (a) and (b) and such provisions of the State's laws
against discrimination as the Commissioner shall determine.
(d) The Consultant will state, in all
solicitation or advertisements for employees placed by or on behalf of the
Consultant, that all qualified applicants will be afforded equal employment
opportunities without discrimination because of race, creed, color, sex,
national origin, age, disability or marital status.
(e) The Consultant will comply with the
provisions of Sections 290-299 of the Executive Law and with the Civil Rights
Law, will furnish all information and reports deemed necessary by the
Commissioner under these non-discrimination clauses and such sections of the
Executive Law, and will permit access to the Consultant's books, records and
accounts by the Commissioner, the Attorney General and the Industrial
Commissioner of the State of New York for the purpose of investigation to
ascertain compliance with these non-discrimination clauses and such sections of
the Executive Law and Civil Rights Law.
(f) This Agreement may be forthwith
cancelled, terminated or suspended, in whole or in part, by UDC upon the basis
of a finding made by the Commissioner that the Consultant has not complied with
these non-discrimination clauses, and the Consultant may be declared ineligible
for future contracts made by or on behalf of the State or a public authority or
agency of the State, until the Consultant satisfies the Commissioner that the
Consultant has established and is carrying out a program in conformity with the
provisions of these non-discriminatory clauses. Such finding shall be made by
the Commissioner after conciliation efforts by the Commissioner have failed to
achieve compliance with these non-discrimination clauses and after a verified
complaint has been filed with the Commissioner, notice thereof has been given
to the Consultant and an opportunity has been afforded the Consultant to be
heard publicly in accordance with the Executive Law. Such sanctions may be
imposed and remedies invoked independently of or in addition to sanctions and
remedies otherwise provided by law.
(g) The Consultant will include the provision
of clauses (a) through (f) in every subcontract or purchase order in such a
manner that such provision will be binding upon each Subconsultant or vendor as
to operations to be performed within the State of New York. The Consultant will
take such action in enforcing such provisions of subcontract or purchase order
as the Commissioner or UDC may direct, including sanctions or remedies for
non-compliance. If the Consultant becomes involved in or is threatened with
litigation by a Subconsultant or vendor as a result of such direction by the
Commissioner or UDC, the Consultant shall promptly so notify New York State
Attorney General, requesting the Attorney General to intervene and protect the
interests of the State of New York.
ARTICLE V
OTHER STANDARD PROVISIONS
5.1 NO WAIVER. No failure by UDC to insist
upon the strict performance of any term or condition of this Agreement or to
exercise any right or remedy consequent upon a breach thereof, and no
acceptance of full or partial performance during the continuance of any such
breach, shall constitute a waiver of any such breach or such term or condition.
No term or condition of this Agreement to be performed or complied with by
Consultant, and no breach thereof, shall be waived, altered or modified except
by a written instrument executed by UDC. No waiver of any breach shall affect
or alter this Agreement, but each and every term and condition of this
Agreement shall continue in full force and effect with respect to any other
then existing or subsequent breach thereof.
5.2 INDEMNIFICATION. In addition to any
liability or obligation of the Consultant to UDC that may exist under this
Agreement or by statute or otherwise, Consultant shall indemnify and hold UDC
and its respective agents, directors, officers and employees harmless from and
against any damages, costs, claims or liabilities which UDC may sustain, as a
result of any and all liabilities, losses, damages, interests, judgments and
liens flowing out of, and any and all costs and expenses (including without
limitation, reasonable counsel fees and disbursements) arising out of, or
incurred in connection with, any and all claims, losses, damages, expenses,
demands, suits, actions, or proceedings which may be made or brought against
UDC for or in relation to any damages or loss caused by, resulting from,
arising out of, or occurring in connection with the services to be performed by
Consultant under this Agreement.
The Consultant agrees that this Section
5.2 shall
survive the expiration or earlier termination of this
Agreement.
5.3 ASSIGNMENT BY
UDC. UDC may transfer and assign any and all of its rights and obligations
under this Agreement, including transferring and assigning its rights to the
Consultant's performance of any portion of the services provided for herein,
together with UDC's obligations and rights pertaining to such portion of
services, to any partnership, firm, corporation, governmental agency or
department or other entity which UDC determines has undertaken or will
undertake any part of the Agreement. UDC shall give the Consultant written
notice of any such transfer and assignment. Such transfer and assignment shall
relieve UDC of all further liability or obligations hereunder.
5.4 GOVERNING LAW. This Agreement shall be
construed and enforced in accordance with the laws of the State of New
York.
5.5 ENTIRE
AGREEMENT/AMENDMENT. This Agreement constitutes the entire Agreement between
the parties hereto and no statement, promise, condition, understanding,
inducement, or representation, oral or written, expressed or implied, which is
not contained herein shall be binding or valid and this Agreement shall not be
changed, modified or altered in any manner except by an instrument in writing
executed by the parties hereto.
5.6
CONFIDENTIALITY. Consultant hereby agrees that all data, recommendations,
reports and other materials developed in the course of this study are strictly
confidential between Consultant and UDC and Consultant may not at any time
reveal or disclose such data, recommendations or reports in whole or in part to
any third party without first obtaining permission from UDC. Notwithstanding
the preceding sentence, Consultant shall cooperate fully with such third
parties as UDC may designate by written request. Such cooperation shall include
making available to such parties, data, information and reports used or
developed by Consultant in connection with this study.
5.7 RELEASE AND DISCHARGE. Simultaneously
with request for final payment hereunder, Consultant shall execute and deliver
to UDC an instrument releasing UDC of and from any and all claims, demands and
liabilities whatsoever of every name and nature both at law and in equity
arising from, growing out of, or in any way connected with this Agreement. A
copy of such release is annexed hereto and made a part hereof.
5.8 MISCELLANEOUS. The parties hereto agree
that this Schedule A shall be controlling in the event of any inconsistencies
or conflicts between the terms of this Schedule A and any part of the
Agreement.
ARTICLE VI
BILLING POLICY
(ONLY APPLICABLE WHERE REIMBURSEMENT IS PART OF THE
AGREEMENT)
6.1 The Consultant
is required to submit detailed documentation in support of Consultant's request
for reimbursement. All invoices and their accompanying documentation must be
forwarded along with a completed copy of the attached INVOICE SUMMARY to:
Accounts Payable Department
New York State Urban Development Corporation
1515 Broadway
New York, New York 10036
6.2 Invoices should be made on the
Consultant's own invoice forms or letterhead and must include UDC's contract
and project numbers, if any. Consultant should also include federal
identification number with their first invoice.
Out-of-pocket expenses should be delineated on any invoices
by general category. The Consultant must submit supporting documentation for
each individual expense category in excess of $250.
6.3 MEALS. Reimbursed in accordance with the
UDC Employee Expense Reimbursement Policy.
6.4 PRINTING.
(a) Internal printing or xeroxing is not
reimbursable. It is part of the Consultant's overhead cost.
(b) Outside printing will be reimbursed only
to the extent of prints requested by UDC, or to be sent to the Subconsultant on
behalf of UDC, and at cost evidenced by a receipt.
(c) No postage will be reimbursed for
printing requested by UDC.
6.5 TELEPHONE.
(a) Only calls to UDC and calls relating to
telephone surveys are chargeable. All other calls are part of Consultant's
overhead costs.
(b) Calls between
the Consultant's office and its employees are not reimbursable.
6.6 TRANSPORTATION. Reimbursed in
accordance with the UDC Employee Expense Reimbursement Policy, a copy of which
is annexed hereto and made a part hereof.
6.7 LODGING. Reimbursed in accordance with
the UDC Employee Expense Reimbursement Policy, a copy of which is annexed
hereto and made a part hereof.
6.8
NON-REIMBURSABLES.
(a) Flight
insurance.
(b) Valet services
(except five or more consecutive days).
(c) Personal expenses of any type.
(d) Expenses paid for UDC
employees.
(e) Travel to any UDC
office to "deliver vouchers or pick up check."
6.9 EQUIPMENT SUPPLIES. Where the Agreement
allows reimbursement for equipment and supplies, insurance or similar items,
the Consultant must supply the following detailed documentation.
(a) Receipts of suppliers invoices for costs
of commodities, equipment and supplies, insurance and other items. Invoices
must show quantity, description and price (less applicable discounts and
purchasing agent's commission).
(b)
Title to all equipment purchased pursuant to this Agreement is vested in UDC.
UDC has the option of claiming any or all of such equipment.
6.10 GENERAL.
(a) All receipts must be legible. Illegible
receipts will not be reimbursed.
(b) Whenever possible original receipts
should be presented for reimbursement.
(c) UDC is a public benefit corporation and
as such is exempt from all sales and usage taxes within New York State. A copy
of UDC's certificate of tax exemption may be obtained by writing to UDC.
At any time or times until three years after completion of
Consultant's services or earlier termination of this Agreement by UDC, UDC may
have the vouchers and statements of cost audited. Each payment theretofor made
shall be subject to reduction for amounts included in the related voucher which
are found by UDC on the basis of such audit, not to constitute allowable cost.
Any such payment may be reduced for overpayments, or increased for
underpayment, as the case may be.
ARTICLE VII
INSURANCE
7.1 The Consultant shall insure and shall
require each of his consultants to carry the following insurance to the extent
stated.
7.2 Comprehensive General
Liability and Property Damage Insurance in an amount not less than $500,000
combined single limit for both Bodily Injury and Property Damage, and
Contractual Liability as respects the Indemnification clause contained
herein.
7.3 Automobile Liability
and Property Damage Insurance in an amount not less than $250,000 combined
single limit for both Bodily Injury and Property Damage.
7.4 Certificates of Insurance for all of the
aforementioned coverages shall be provided to UDC prior to the commencement of
work under this agreement.