CONTRACT No. CMS3000

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION,

NEW YORKSTATE DEPARTMENT OF LABOR,

NEW YORK STATE DEPARTMENT OF PUBLIC SERVICE,
NEW YORK STATE DEPARTMENT OF TRANSPORTATION,

NEW YORK STATE DIVISION OF THE BUDGET

NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL,
AND
FRIED, FRANK, HARRIS, SHRIVER JACOBSON LLP
FOR LEGAL SERVICES
FOR THE PERIOD
APRIL 29, 2016 THROUGH DECEMBER 31, 2017

This is an AGREEMENT by and between the New York State, Department of
/New York State Department of Labor, New York State

State Division of the Budget,?New York State Division of Housing and Community
Renewa (hereinafter referred to collectively as and Fried, Frank, Harris,
Shriver 8. Jacobson LLP, (hereinafter referred to as or
a law firm with offices at One New York Plaza, New York, New York
10004.

WITNESSETH

WHEREAS, the US Attorney?s Office for the Southern District of New York is
currently investigating the Buffalo Billion Project and the Nano Program and has issued
subpoenas and requests for information to the AGENCIES as part of that investigation;
and

WHEREAS, the AGENCIES require expert outside counsel to assist in responding to the
subpoenas and information requests as well as any other legal advice or guidance to
support their cooperation with the and

WHEREAS, the AGENCIES have determined that FRIED FRANK is uniquely and
exceptionally qualified to perform such services; and

WHEREAS, FRIED FRANK is capable of handling this matter in an expedited and skillful
manner;

NOW, THEREFORE, in consideration of the terms and conditions of this AGREEMENT,
it is hereby mutually agreed by and between the AGENCIES and the CONTRACTOR
(each individualty a and cotlectively as foliows:

I.

SERVICES TO BE PROVIDED

The hereby engage provide legai services in connection
with the USAO investigation. FRIED FRANK shall provide services as requested by
each agency. NYS Department of Environmental Conservation shall serve
as the Lead Agency for the purpose of certain administrative
responsibilities pertaining to this AGREEMENT.

. TERM

The hereby engage FRIED FRANK to furnish legal services set forth in
Section I, for the period of April 29, 2016 through December 31, 2017.

COMPENSATION

 

A. FRIED FRANK shall bill the AGENCIES for services performed under this
AGREEMENT according to the following hourly rates:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Attorney Discounted Rates Discounted Rates
1/1/2016 to 12/31/2016 1/1/2017 to 12/31/2017

Juris, 8. (Partner) $820 $820
Roth, J. (Associate) $692 $692
Kozlowski, E. (Associate) $692 $692
Loffler, J. (Associate) $596 $596
Special Counsel 1 $776 $812
Special Counsel 2 $740 . $780
Associate: 9th Yr $692 $724
Associate: 8th Yr $684 $716
Associate: 7th Yr $664 $696
Associate: 6th Yr $624 $652
Associate: 5th Yr $596 $624
Associate: 4th Yr $568 $596
Associate: 3rd Yr $528 $556
Associate: 2nd Yr $460 $480
Associate: 1st Yr $400 $416
Paralegal $288 (35300 

 



FRIED FRANK's hourly rates on this AGREEMENT reflect a 20% discount from
standard hourly rates.

B. FRIED FRANK wilt bill for routine out-of?pocket expenses incurred on the
behalf, such as ?ling fees, transcript expenses, travel (in accordance
with NYS Travel Guidelines), messenger service, photocopies, long distance

telephone calls, facsimiles and computerized research. Any extraordinary
expenses will be incurred only after discussion and agreement between FRIED
FRANK and the AGENCIES.

C. Total payments under this AGREEMENT, inclusive of expenses and other
disbursements, shall not exceed a maximum amount of $1,900,000. By entering
into this AGREEMENT FRIED FRANK is not agreeing to a flat fee billing
arrangement. If the parties agree that the payment amount under this
AGREEMENT should be increased, the AGREEMENT may be amended subject
to approval by the Attorney General and the State Comptroller

D. On a basis, FRIED FRANK shall submit separately to the each of the
AGENCIES an invoice documenting those services and expenses provided under
this AGREEMENT for representation solely attributable to that particular agency.
Any service or expense attributed to multiple AGENCIES shall be allocated and
billed to each agency proportionately.

E. Fees, disbursements and charges shall become payable pursuant to NYS Finance
Law Article 11-A and upon the receipt of an approvable invoice that includes the
following information:

1. The AGREEMENT number (CMS3000), the New York State
Vendor Identification Number and an invoice number;

2. The name of the agency billed;

3. The start and end date of the period to which the statement pertains;

4. A brief description of the work performed;

5. The name of the individual(s) performing the service, such person?s title, and
billing rate;

6. A summary of the total number of hours of services performed;

7. The date(s) each billed service was rendered;

8. A description of all reimbursable disbursements and expenses itemized by

category, including travel, with receipts and documentation; and
9. The total amount billed for services for the invoice period.

F. Invoices should be submitted electronically to the AGENCIES as follows:

 

Department of Environmental Robin Gillespie at robin.dillespie@dec.nv.gov
Conservation

 

Department of Labor 

 

Department of Public Service Carol Gnacik at CaroI.Gnacik@dps.ny.gov

 

Department of Transportation Juliane Nellis at Juliane.Nellis@dot.nv.oov and Kyle
Wood at Kvle.Wood@dot.nv.Qov

 

 

 

 

Division of the Budget contracts@budoet.nv.qov
Division of Housing and NYS Office of General Services Business Services
Community Renewal Center at accountspavable@oqs.nv.qov

 

 

G. FRIED FRANK agrees to provide the AGENCIES with such detailed
documentation substantiating fees and disbursements as the AGENCIES may
request.

H. FRIED FRANK acknowledges that it will not receive payment on any invoices
submitted under this AGREEMENT unless or until it complies with the State
Comptroller?s electronic payment procedures.

I. FRIED FRANK shall not be reimbursed for the preparation of invoices or billing
statements or for time spent correcting any errors in previously submitted invoices
or billing statements.

IV. RELATIONSHIP OF PARTIES

A. The relationship of the CONTRACTOR to the AGENCIES shalt be that of an
attorney and client. Nothing herein shall be construed as limiting or amending the
attorney-client privileges afforded by law.

B. The CONIQTRACTOR is and shall be, in all respects, an independent contractor in
performing services pursuant to this AGREEMENT. In accordance with such
status as an independent contractor, the CONTRACTOR covenants and agrees
to act consistent with such status: to neither hold itself out as, nor claim to be, an
officer or employee of the AGENCIES or the STATE by reason hereof; and not to,
by reason hereof, make any claim, demand, or application to or for any right or
privilege applicable to an officer or employee of the AGENCIES or the STATE,
including but not limited to workers' compensation coverage, unemployment
insurance benefits, social security coverage, or retirement membership credit.

V. STAFF

A. FRIED FRANK shall assign Stephen Juris as the lead partner for its duties
hereunder. FRIED FRANK may not make changes to the lead engagement partner
without the prior approval.

B. The CONTRACTOR specifically represents and agrees that its members, officers,
employees, agents, servants, consultants, shareholders, and subcontractors have
and shall possess the experience, knowledge, and character necessary to qualify
them individually for the particular duties performed hereunder. All employees of
the CONTRACTOR, or of its subcontractors, who shall perform Services underthis
AGREEMENT, shall possess the necessary qualifications, training, licenses, and
permits as may be required within the jurisdiction where the Services specified are
to be provided or performed, and shail be Iegally entitled to work in such
jurisdiction. Ail persons, corporations, or other legal entities that perform Services
under this AGREEMENT on behalf of CONTRACTOR shalt, in performing the
Services, comply with all applicable Federal and State laws concerning
employment in the United States.

C. The CONTRACTOR may arrange for a portion/s of its responsibilities under this

AGREEMENT to be subcontracted to qualified, responsible subcontractors,
subject to approval of the AGENCIES. If the CONTRACTOR determines to
subcontract a portion of the services, the subcontractors must be clearly identified
and the nature and extent of its involvement in and/or proposed performance under
this AGREEMENT must be fully explained by the CONTRACTOR to the
AGENCIES. The CONTRACTOR retains ultimate responsibility for all services
performed under the AGREEMENT, including those performed by subcontractors.

The CONTRACTOR shall be fully responsible for performance of work by its staff
and by its subcontractor?s staff, including contracted legal services. Approval shall
not be unreasonably withheld upon receipt of written request to subcontract.

VI. AGENCIES REPRESENTATIVES

A. All Notices related to the administration of this AGREEMENT shall be directed to

B.

the LEAD AGENCY representative identified in this Section, or their designees.

All Notices related to the services provided to the AGENCIES shall be directed to
the agency representatives identified in this Section, or their designees.

. Such representatives shall request, oversee, supervise and accept performance

of services provided by the CONTRACTOR to each individual agency and shall
receive any required submissions. Whenever an action is to be taken or approval
for services given by the AGENCIES, such action or approval may be given only
by the representatives designated pursuant to this Section.

The AGENCIES, with the commencement of this AGREEMENT, designate as their
representatives:

 

 

 

 

 

 

 

 

Department of Environmental Tom Berkman or his designee(s)

Conservation

Department of Labor Pico Ben~Amotz or his
designee(s)

Department of Public Service Paul Agresta or his designee(s)

Department of Transportation Jan McLachlan or her designee(s)

Division of the Budget Alan Lebowitz or his designee(s)

Division of Housing and Community Linda Manley or her designee(s)

Renewal

 

 

The AGENCIES may, on written notice, designate other individuais as their
representatives.

VII. CONFLICTS OF INTEREST

A. FRIED FRANK hereby covenants and represents that there is not and shall be no
actual or potential conflict of interest that could prevent the firm?s satisfactory or
ethical performance of duties required to be performed pursuant to the terms of
this AGREEMENT and any other contract or employment; and FRIED FRANK
shall have a duty to notify the AGENCIES of any actual or potential
conflicts of interest in all that it does to serve the purpose of this AGREEMENT
and its intent.

B. FRIED FRANK warrants that it has performed a conflicts check and has
determined that it may, under applicable ethics ruies, perform the anticipated
services. It further warrants that it is not involved in any litigation or administrative
proceeding(s) to which it is a party that would either: 1) materially impair its ability
to perform the services outlined herein or 2) materially and adversely affect its
financial ability to perform the services outlined herein if decided in an adverse
manner. FRIED FRANK agrees that it will handle any conflicts and/or joint
representation issues consistent with Section ll of the Form Engagement Letter
incorporated into the AGREEMENT as Appendix B.

WARRANTIES

A. The CONTRACTOR warrants that it will perform services in good faith and in a
workmaniike and professional manner in accordance with the applicable
professional standards. The warranties expressly set forth in this AGREEMENT
are in lieu of all other warranties, expressed or implied including, but not limited to,
the implied warranties of merchantability and fitness for a particular purpose.

B. The CONTRACTOR warrants that its services shall be performed in accordance
with applicable professional standards and that the CONTRACTOR shall correct,
at no charge to the AGENCIES or the STATE, services which fail to meet
applicable professionai standards and which result in obvious or patent errors in
the progression of its work.

. INDEMNIFICATION AND LIABILITY

The CONTRACTOR shall be fully liabie without monetary limitation for any act or
omission of the CONTRACTOR, its employees, subcontractors and agents, and shall
fully indemnify and hold harmless the STATE from suits, actions, damages and costs
of every name and description relating to personal injury, death and damage to real
or tangible personal property or intellectual property caused by fault or negligence of
CONTRACTOR, its empioyees, subcontractors or agents arising from the
CONTRACTOR's performance of the Contract, provided, however, that the
CONTRACTOR shalt not be obligated to indemnify the STATE for that portion of any
claim, loss or damage arising hereunder due to the negligent act or failure to act by
the STATE or the acts of third parties, other than those provided by the

 .

CONTRACTOR to perform under the Agreement. In connection with the foregoing,
the STATE shall give the CONTRACTOR: prompt written notice of any action, claim
or threat of suit, (ii) the opportunity to take over, settle or defend such action, claim or
suit at the sole expense, and assistance in the defense of any
such action at the expense of the CONTRACTOR. Notwithstanding the foregoing, the
State reserves the right to join such action, claim, or threat of suit, at its sole expense,
when it determines there is an issue involving a signi?cant public interest.

TERMINATION

A.

The LEAD in consultation with the AGENCIES, reserves the right to
terminate the services of the CONTRACTOR, in whole or in part, upon thirty (30)
days written notice for any reason, or immediately for cause. Upon notice of
termination, the CONTRACTOR shalt stop work immediately and complete only
those specific assignments, if any, subsequently approved by the AGENCIES. In
the event of termination other than for cause, the CONTRACTOR shall be entitled
to compensation for services performed through the date of termination that are
accepted by the AGENCIES, and for any subsequent services that are accepted
by the AGENCIES, rendered in connection with any successor consultants and
contractors, inciuding transfer of records, briefing and any other services deemed
necessary or desirable by the AGENCIES. The CONTRACTOR agrees to
cooperate to the fullest respect with any successor consultants and contractors.

If the Termination for cause results from unsatisfactory performance by the
CONTRACTOR, the value of the work performed by the CONTRACTOR prior to
termination shall be established by the LEAD AGENCY, in consultation with the
AGENCIES.

In addition, non?compliance with the procurement laws as noted in Section XI of
this AGREEMENT will lead to contract termination.

CONTRACTOR reserves the right to terminate the services subject to applicable
rules of professional conduct and rules of court.

COMPLIANCE WITH PROCUREMENT LAWS

A.

By execution of this AGREEMENT, the CONTRACTOR certifies that information
provided to the State of New York with respect to the Vendor Responsibility
Questionnaire, Procurement Lobbying Certifications, Contractor Disciosure Form,
and Section 5-3 of the Tax Law (Forms and is complete,
true and accurate.

The CONTRACTOR hereby acknowledges that any misrepresentation of fact in
the Questionnaire and attachments, or in any CONTRACTOR responsibility
information that may be requested by the LEAD AGENCY, may result in
termination of this AGREEMENT.

The CONTRACTOR shall at all times during the contract term remain responsible.
During the term of this AGREEMENT, any changes in the provided Questionnaire
shall be disclosed to the LEAD AGENCY, in writing, in a timely manner. Failure to
make such disclosure may result in a determination of non-responsibility and
termination of this AGREEMENT. Furthermore, the CONTRACTOR agrees, if
requested by the LEAD AGENCY, to present evidence of its continuing legal
authority to do business in New York State, integrity, experience, ability, prior
performance, and organizational and financial capacity.

The LEAD AGENCY, in consultation with the AGENCIES, in its sole discretion,
reserves the right to suspend any or all activities under this AGREEMENT, at any
time, when it discovers information that calls into question the responsibility of the
CONTRACTOR. This includes the LEAD right to terminate this
AGREEMENT in the event the LEAD AGENCY finds that the certification made by
CONTRACTOR in accordance with New York State Finance Law 139?j and
139-k was intentionally false or intentionally incomplete. In the event of such
suspension, the CONTRACTOR will be given written notice outlining the
particulars ofsuch suspension. Upon issuance of such notice, the CONTRACTOR
must comply with the terms of the suspension order. Contract activity may resume
at such time as the LEAD AGENCY issues a written notice authorizing a
resumption of performance under this AGREEMENT.

Upon written notice to the CONTRACTOR, and a reasonable opportunity to be
heard with the appropriate LEAD AGENCY officials or staff, this AGREEMENT
may be terminated by the LEAD AGENCY, in consultation with the AGENCIES, at
the expense where the CONTRACTOR is determined by the
AGENCIES to be non-responsible. In such event, the AGENCIES may complete
contractual requirements in any manner they deems advisable and pursue
available legal or equitable remedies for breach.

. CONTRACTOR hereby acknowledges that State Finance Law Section 163(4)(g)
imposes certain reporting requirements on the contractor doing business with New
York State. In furtherance of these reporting requirements, the CONTRACTOR
agrees to complete and submit an initial planned employment data report and an
annual employment report (Forms A and respectively). Complete instructions
and forms may also be accessed at:


. Nothing in this section shall be interpreted to limit or expand the 
obligations pursuant to NY. Public Officers Law Article 6 and 6-a, the Freedom of
Information Law and Personal Privacy Protection Law, respectively. Similarly,
nothing in this section shall be interpreted to limit or expand the applicability of .
either laws or exemptions to disclosure of records possessed by the AGENCIES.

. The CONTRACTOR and its staff must comply with the requirements of Sections
73 and 74 of the Public Officers Law, other State codes, rules, regulations and

executive orders establishing ethical standards for the conduct of business with
New York State. Failure to comply with these requirements may result in
termination of the AGREEMENT and/or other civil or criminal proceedings as
required by law.

XII. AND PROCEDURES FOR MNVBE PARTICIPATION
A. General Provisions

1. The AGENCIES are required to implement the provisions of New York State
Executive Law Article 15-A and 5 Parts 140?145 
Regulations?) for all State contracts as defined therein, with a value (1) in
excess of $25,000 for labor, services, equipment, materials, or any combination
of the foregoing or (2) in excess of $100,000 for real property renovations and
construction.

2. The CONTRACTOR agrees, in addition to any other nondiscrimination
provision of the AGREEMENT and at no additional cost to the AGENCIES, to
fully comply and cooperate with the AGENCIES in the implementation of New
York State Executive Law Article 15A. These requirements include equal
employment opportunities for minority group members and women and
contracting opportunities for certified minority and women-owned business
enterprises The CONTRACTOR's demonstration of "good faith
efforts? pursuant to 5 ?142.8 shall be a part of these requirements.
These provisions shall be deemed supplementary to, and not in lieu of, the
nondiscrimination provisions required by New York State Executive Law Article
15 (the ?Human Rights Law?) or other applicable federal, state or local laws.

3. Failure to comply with all of the requirements herein may result in a finding of
non-responsiveness, non?responsibility and/or a breach of contract, leading to
the withholding of funds or such other actions, liquidated damages pursuant to
this Section or enforcement proceedings as allowed by the AGREEMENT.

B. Contract Goals

Pursuant to 5 Section 142.2, the AGENCIES have determined that MWBE
Contract Goals are not practical, feasible or appropriate for the services required
under this AGREEMENT. As such, there are no MWBE subcontracting goals for
this AGREEMENT. Notwithstanding the preceding, CONTRACTOR is still
responsible to meet all requirements of the provisions of New York State Executive
Law Article 15A and 5 Parts 140-145.

C. Equal Employment Opportunity (EEO)

1. The CONTRACTOR agrees to be bound by the provisions of Article and
the MWBE Regulations promulgated by the Division of Minority and Women's

Business Development of the Department of Economic Development (the
?Division"). if any of these terms or provisions conflict with applicable law or
regulations, such laws and regulations shall supersede these requirements.

2. The CONTRACTOR shall comply with the following provisions of Article 15 -A:

a.

CONTRACTOR and each subcontractor performing work on this
AGREEMENT shall undertake or continue existing EEO programs to
ensure that minority group members and women are afforded equal
employment opportunities without discrimination because of race, creed,
color, national origin sex age disability or marital status. For these
purposes, EEO shall apply in the areas of recruitment, employment, job
assignment, promotion upgrading demotion, transfer layoff, or
termination and rates of pay or other forms of compensation.

The CONTRACTOR shall submit an EEO policy statement to the LEAD
AGENCY within seventy~two (72) hours after the date of the notice by the
LEAD AGENCY to award the AGREEMENT to the CONTRACTOR.

if the CONTRACTOR or subcontractor does not have an existing EEO
policy statement, the AGENCIES may provide the CONTRACTOR or
subcontractor a model statement.

The EEO policy statement shall include the following
language:

1) The CONTRACTOR will not discriminate against any employee or
applicant for employment because of race, creed, color, national
origin, sex, age, disability or marital status, will undertake or continue
existing EEO programs to ensure that minority group members and
women are afforded equal employment opportunities without
discrimination, and shall make and document its conscientious and
active efforts to empioy and utilize minority group members and
women in its work force.

2) The CONTRACTOR shall state in all solicitations or advertisements for
employees that, in the performance of this AGREEMENT, all quaiified
applicants will be afforded equal employment opportunities without
discrimination because of race creed, color, national origIn sex age,
or marital status.

3) The CONTRACTOR shall request each employment agency, labor
union, or authorized representative of workers with which it has a
collective bargaining or other agreement or understanding, to furnish a
written statement that such employment agency, labor union or
representative will not discriminate on the basis of race, creed, coior
national origin, sex, age, disability or marital status and that such union

10

or representative will affirmatively cooperate in the implementation of
the CONTRACTOR's obligations herein.

4) The CONTRACTOR will include the provisions of Subsection 
Paragraphs 1) through 3) and Subsection which provides for
relevant provisions of the Human Rights Law, in every subcontract in
such a manner that the requirements of the subdivisions will be binding
upon each subcontractor as to work in connection with the
AGREEMENT.

3. Workforce Employment Utilization Report (?Workforce Report?)

a. The CONTRACTOR shall submit a Workforce Report, and shall require
each of its subcontractors to submit a Workforce Report, in such format as
shall be required by the AGENCIES on a QUARTERLY basis during the
term ofthe AGREEMENT.

b. Separate forms shall be completed by CONTRACTOR and any
subcontractor.

c. In limited instances, the CONTRACTOR may not be able to separate out
the workforce utilized in the performance of the AGREEMENT from the
CONTRACTOR's and/or subcontractor's total workforce. When a
separation can be made, the CONTRACTOR shall submit the Workforce
Report and indicate that the information provided related to the actual
workforce utilized on the AGREEMENT. When the workforce to be utilized
on the AGREEMENT cannot be separated out from the CONTRACTOR's
and/or subcontractor?s total workforce, the CONTRACTOR shall submit the
Workforce Report and indicate that the information provided is the
CONTRACTOR's total workforce during the subject time frame, not limited
to work specifically under the AGREEMENT.

4. The CONTRACTOR shall comply with the provisions of the Human Rights Law,
all other State and Federal statutory and constitutional non?discrimination
provisions. The CONTRACTOR and subcontractors shall not discriminate
against any employee or applicant for employment because of race, creed
(religion), color, sex, national origin, sexual orientation, military status, age,
disability, predisposing genetic characteristic, marital status or domestic
violence victim status, and shall also foilow the requirements of the Human
Rights Law with regard to non-discrimination on the basis of prior criminal
conviction and prior arrest.

11



PRECEDENT
This AGREEMENT and any subsequent amendments to this AGREEMENT shail not
be deemed executed, valid or binding unless and until approved in writing by the
Offices of the Attorney General and State Comptroller.

XIV. ENTIRE AGREEMENT AND INTERPRETATION

A. This AGREEMENT, Appendix A (Standard Clauses for New York State Contracts),

and Appendix 8 (Engagement Letter) Sections i, II, V, VI, VII and, to the extent
they do not conflict with the AGREEMENT, Sections IV and constitute the
entire AGREEMENT between the parties hereto, and no statement, promise,
condition, understanding, inducement or representation, oral orwritten, expressed
or implied, which is not contained herein shall be binding or valid.

. This AGREEMENT shall not be changed, modified or altered in any manner except

by an instrument in writing executed by the PARTIES.

. In the event of any discrepancy, disagreement or ambiguity among the following

documents they shall be given preference in the foltowing order to interpret and to
resolve such discrepancy, disagreement or ambiguity:

1. Appendix A Standard Clauses for New York State Contracts dated January
2014;
2. This AGREEMENT as it appears prior to the signature page incorporated
herein; and
3. Appendix - Form Engagement Letter Sections I, ll, V, VI, VII and, to the
extent they do not con?ict with the AGREEMENT, Sections IV and 

XV. REQUIRED OUTSIDE COUNSEL PROVISIONS

A. Opinions prepared by retained attorneys or law firms construing the statutes or

Constitution of the State of New York do not constitute the opinion of the State
unless the prior written approval of the Attorney General is obtained. Requests for
said approval shall be submitted to the Solicitor General, Appeals and Opinions
Bureau, Department of Law, State Capitol, Albany, New York.

. The retained attorney or law firm will represent the State of New York in judicial

litigation related to the services to be provided under this AGREEMENT only when
such services are specifically requested by the counsel and approved
by the Attorney General. Such approval must be requested separately for each
matterto be litigated and must be received prior to the commencement of services
therefor.

12

XVI. 

If any provision of this AGREEMENT is determined by a court of competentjurisdiction
to be invalid or unenforceable, the remainder of this AGREEMENT shall not be
affected, but shall remain binding and effective as against all parties hereto.

13

CMS3000

lN WITNESS WHEREOF, each of the PARTIES hereto has caused this AGREEMENT to
be executed by its duly authorized officers on the day and year stated below.

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

Approved by:

    

 

 

 

 

 

 

 

 

 

FRAK, HARRIS, SHRIVER NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CON ERVATION
By: By: . 
Name Name: I?l? Cf Lassier
Title: Title: . 
Date . Date: ?in 2 ?i Z?ii

i i
Attorney General:
ERIC T. SCHNEIDERMAN
By:
Date: 

 

DEPT. OF CONTROL

State Comptroller:
THOMAS P. NOV ,5 201?

By:
Date:

 

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14

CMS3000
Approved by:

NEW YORK STATE DEPARTMENT OF
LABOR 
By: I - -- -
Name: Fania J. @1310
Title: EX?cuti-w new?

Date: U?mm13gf?f?3r~hm

     
    
  
 

 

 

 

15

CMS3000
Approved by:

NEW YORK ST DEPARTMENT OF
PUBLIC SER

   

 

Name: Paul Agre?
Title: General Counsel
Date: May 31, 2017

16

CMS3000
Approved by:

NEW YORK STATE DEPARTMENT OF
TRANSPORTATI 

  

 

 

 

 

Name: {Wm #1 ?5r ac? 
.Title: asp/:5 aif?ayg fr
Date; f6?;

17

CMS3000
Approved by:

NEW YORK STATE DIVISION OF THE
BUDGET

Name: wran GEJH
Title: ?cbf DIE 
Date: 

1'1:

18

0M83000
Approved by:

ESTATE DIVISION OF
RENEWAL
EJJK Um:

Name: 
Title: mm E??mxf?fs?QE
Date: 

 

19

CORPORATE ACKNOWLEDGMENT FORM

The acknowledgment must be fully and properly executed by an authorized person. By signing you
certify your express authority to sign on behalf of yourself, your company, or other entity and that
all information provided is complete, true and accurate. Also, the contractor affirms that it
understands and agrees to comply with the procedures relative to permissible contacts as required
by State Finance Law ?139-j (3) and ?139?j (6) 

 

INDIVIDUAL. CORPORATION. PARTNERSHIP. 0R LLC ACKNOWLEDGMENT

 


STATE OF New garlic 
1,2 88.:
COUNTYOF 
On the 3tst day of May in the year 20 1: before me personally appeared
Stephen M. Juris known to me to be the person who executed the foregoing

 

instrument. who, being duly sworn by me did depose and say that _he resides at

Town of .
Countyo and
further th .

[Check One]
If an individual): ?he executed the foregoing instrument in his/her name and on his/her own behalf.

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

3 Limited Liability 
(IX) If a partnership): ?he is 29/ Partner of

Fried. Frank. Harris. Shriver?t Jacobson. LLP the artnership described in said instrument; that, by the
terms of said partnership, _he is authorized to execute the foregoing instrument on behalf of the
partnership for purposes set forth therein; and that, pursuant to that authority, _he executed the foregoing
instrument in the name of and on behaif of said partnership as the act and deed of said partnership.

 

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

  

 

 

company. 
rk 
Notary Pubtic - ry ubiic, tateo ew 
Registration No. 91576219591 State of; Lin-J r0 

 

 

Certificate on fits in New York County

 

 

Commission Expires March 29, 2018

20

APPENDIX A: STANDARD CLAUSES FOR NYS CONTRACTS
(JANUARY 2014)

The parties to the attached contract, license. tease,
amendment or other agreement of any kind
(hereinafter, "the contract" or "this contract") agree
to be bound by the following clauses which are
hereby made a part of the contract (the word
"Contractor" herein refers to any party other than
the State, whether a contractor, licenser, licensee,
lessor, lessee or any other party):

1. EXECUTORY CLAUSE. In accordance with
Section 41 of the State Finance Law, the State
shall have no liability under this contract to the
Contractor or to anyone else beyond funds appro-
priated and available for this contract.

2. NON-ASSIGNMENT CLAUSE. In accordance
with Section 138 of the State Finance Law, this
contract may not be assigned by the Contractor or
its right, title or interest therein assigned,
transferred, conveyed, sublet or othenrvise
disposed of without the State?s previous written
consent, and attempts to do so are null and void.
Notwithstanding the foregoing, such prior written
consent of an assignment of a contract let pursuant
to Article XI of the State Finance Law may be
waived at the discretion of the contracting agency
and with the concurrence of the State Comptroller
where the original contract was subject to the State
Comptrolier's approval, where the assignment is
due to a reorganization, merger or consolidation of
the Contractor?s business entity or enterprise. The
State retains its right to approve an assignment and
to require that any Contractor demonstrate its
responsibility to do business with the State. The
Contractor may, however, assign its right to receive
payments without the State's prior written consent
unless this contract concerns Certificates of
Participation pursuant to Article 5-A of the State
Finance Law.

3. APPROVAL. In
accordance with Section 112 of the State Finance
Law (or, it this contract is with the State University
or City University of New York, Section 355 or
Section 6218 of the Education Law), if this contract
exceeds $50,000 (or the minimum thresholds
agreed to by the Office of the State Comptroller for
certain S.U.N.Y. and C.U.N.Y. contracts), or if this
is an amendment for any amount to a contract
which. as so amended, exceeds said statutory
amount, or if, by this contract, the State agrees to
give something other than money when the value
or reasonably estimated value of such

21

consideration exceeds $10,000, it shall not be
valid, effective or binding upon the State until it has
been approved by the State Comptroller and filed
in his office. Comptroller's approval of contracts let
by the Office of General Services is required when
such contracts exceed $85,000 (State Finance Law
Section However, such pre-approval
shall not be required for any contract established
as a centralized contract through the Office of
General Services or for a purchase order or other
transaction issued under such centraiized contract.

4. COMPENSATION BENEFITS. In
accordance with Section 142 of the State Finance
Law, this contract shalt be void and of no force and
effect unless the Contractor shall provide and
maintain coverage during the life of this contract for
the benefit of such employees as are required to be
covered by the provisions of the Workers?
Compensation Law.

5. NON-DISCRIMINATION REQUIREMENTS. To
the extent required by Article 15 of the Executive
Law (also known as the Human Rights Law) and all
other State and Federal statutory and constitutional
non-discrimination provisions, the Contractor will
not discriminate against any employee or applicant
for employment because of race, creed, color, sex
(including gender identity or expression), national
origin, sexual orientation, military status, age.
disability, predisposing genetic characteristics,
marital status or domestic violence victim status.
Furthermore, in accordance with Section 220-e of
the Labor Law, if this is a contract for the
construction, alteration or repair of any pubiic
building or public work or for the manufacture, sale
or distribution of materials, equipment or supplies,
and to the extent that this contract shall be
performed within the State of New York, Contractor
agrees that neither it nor its subcontractors shalt,
by reason of race, creed, color, disability, sex, or
national origin: discriminate in hiring against
any New York State citizen who is qualified and
available to perform the work; or discriminate
against or intimidate any employee hired for the
performance of work under this contract. If this is
a building service contract as defined in Section
230 of the Labor Law, then, in accordance with
Section 239 thereof, Contractor agrees that neither
it nor its subcontractors shail by reason of race,
creed, color, national origin, age. sex or disability:
discriminate in hiring against any New York
State citizen who is qualified and available to

perform the work; or discriminate against or
intimidate any employee hired for the performance
of work under this contract. Contractor is subject
to fines of $50.00 per person per day for any
violation of Section 220-e or Section 239 as well as
possible termination of this contract and forfeiture
of all moneys due hereunder for a second or
subsequent violation.

6. WAGE AND HOURS PROVISIONS. if this is a
public work contract covered by Article 8 of the
Labor Law or a building service contract covered
by Article 9 thereof, neither Contractor's employees
nor the employees of its subcontractors may be
required or permitted to work more than the
number of hours or days stated in said statutes,
except as otherwise provided in the Labor Law and
as set forth in prevailing wage and supplement
schedules issued by the State Labor Department.
Furthermore, Contractor and its subcontractors
must pay at least the prevailing wage rate and pay
or provide the prevailing supplements, including
the premium rates for overtime pay, as determined
by the State Labor Department in accordance with
the Labor Law. Additionally, effective April 28,
2008, if this is a public work contract covered by
Article 8 of the Labor Law, the Contractor
understands and agrees that the filing of payrolls in
a manner consistent with Subdivision 3-3 of
Section 220 of the Labor Law shall be a condition
precedent to payment by the State of any State
approved sums due and owing for work done upon
the project. 

7. NON-COLLUSIVE BIDDING CERTIFICATION.
in accordance with Section 139-d of the State
Finance Law, if this contract was awarded based
upon the submission of bids, Contractor affirms,
under penalty of perjury, that its bid was arrived at
independently and without collusion aimed at
restricting competition. Contractor further affirms
that, at the time Contractor submitted its bid, an
authorized and responsible person executed and
delivered to the State a non-collusive bidding
certification on Contractor's behalf.

8. INTERNATIONAL BOYCOTT 
In accordance with Section 220-f of the Labor Law
and Section 139-h of the State Finance Law. if this
contract exceeds $5,000, the Contractor agrees. as
a material condition of the contract, that neither the
Contractor nor any substantially owned or affiliated
person. firm, partnership or corporation has
participated, is participating, or shall participate in
an international boycott in violation of the federal
Export Administration Act of 1979 (50 USC App.

22

Sections 2401 et seq.) or regulations thereunder.
If such Contractor, or any of the aforesaid affiliates
of Contractor, is convicted or is otherwise found to
have violated said laws or regulations upon the
final determination of the United States Commerce
Department or any other appropriate agency of the
United States subsequent to the contract's
execution, such contract, amendment or
modification thereto shall be rendered forfeit and
void. The Contractor shall so notify the State
Comptroller within five (5) business days of such
conviction, determination or disposition of appeal
105.4).

9. SET-OFF RIGHTS. The State shall have all of
its common law, equitable and statutory rights of
set?off. These rights shall include, but not be
limited to, the State?s option to withhold for the
purposes of set-off any moneys due to the
Contractor under this contract up to any amounts
due and owing to the State with regard to this
contract. any other contract with any State
department or agency, including any contract for a
term commencing prior to the term of this contract,
plus any amounts due and owing to the State for
any other reason including, without limitation, tax
delinquencies, tee delinquencies or monetary
penalties relative thereto. The State shall exercise
its set-off rights in accordance with normal State
practices including, in cases of set-off pursuant to
an audit, the finalization of such audit by the State
agency, its representatives, or the State
Comptroller.

10. RECORDS. The Contractor shall establish
and maintain complete and accurate books,
records, documents, accounts and other evidence
directly pertinent to performance under this
contract (hereinafter, collectively, "the Records").
The Records must be kept for the balance of the
calendar year in which they were made and for six
(6) additional years thereafter. The State
Comptroller. the Attorney General and any other
person or entity authorized to conduct an
examination, as well as the agency or agencies
involved in this contract, shall have access to the
Records during normal business hours at an office
of the Contractor within the State of New York or, if
no such office is available, at a mutually agreeable
and reasonable venue within the State, for the term
specified above for the purposes of inspection, ..
auditing and copying. The State shall take
reasonable steps to protect from public disclosure
any of the Records which are exempt from
disclosure under Section 87 of the Public Officers
Law (the "Statute") provided that: the Contractor

shall timely inform an appropriate State official, in
writing, that said records should not be disclosed;
and (ii) said records shall be sufficiently identified;
and designation of said records as exempt
under the Statute is reasonable. Nothing contained
herein shall diminish, or in any way adversely
affect, the State's right to discovery in any pending
or future litigation.

11. IDENTIFYING AND PRIVACY

NOTIFICATION. Identification Number(s).
Every invoice or New York State Claim for Payment
submitted to a New York State agency by a payee,
for payment for the sale of goods or services or for
transactions leases, easements, licenses.
etc.) related to real or personal property must
include the payee's identification number. The
number is any or all of the following: the payee?s
Federal employer identification number, (ii) the
payee's Federal social security number, and/or 
the payee's Vendor identification Number assigned
by the Statewide Financial System. Failure to
include such number or numbers may delay
payment. Where the payee does not have such
number or numbers, the payee, on its invoice or
Claim for Payment, must give the reason or
reasons why the payee does not have such
number or numbers.

Privacy Notification. (1) The authority to
request the above personal information from a
seller of goods or services or a lessor of real or
personal property, and the authority to maintain
such information, is found in Section 5 of the State
Tax Law. Disclosure of this information by the
seller or lessor to the State is mandatory. The
principal purpose for which the information is
collected is to enable the State to identify
individuals. businesses and others who have been
delinquent in filing tax returns or may have
understated their tax liabilities and to generally
identify persons affected by the taxes administered
by the Commissioner of Taxation and Finance.
The information will be used for tax administration
purposes and for any other purpose authorized by
law. (2) The personal information is requested by
the purchasing unit of the agency contracting to
purchase the goods or services or lease the real or
personal property covered by this contract or lease.
The information is maintained in the Statewide
Financial System by the Vendor Management Unit
within the Bureau of State Expenditures, Office of
the State Comptroller, 110 State Street, Albany,
New York 12236.

23

12. EQUAL OPPORTUNITIES
FOR AND WOMEN. in accordance
with Section 312 of the Executive Law and 5
143, if this contract is: a written
agreement or purchase order instrument, providing
for a total expenditure in excess of $25,000.00,
whereby a contracting agency is committed to
expend or does expend funds in return for labor,
services, supplies, equipment, materials or any
combination of the foregoing. to be performed for.
or rendered or furnished to the contracting agency;
or (ii) a written agreement in excess of $100,000.00
whereby a contracting agency is committed to
expend or does expend funds for the acquisition,
construction, demolition, replacement, major repair
or renovation of real property and improvements
thereon; or a written agreement in excess of
$100,000.00 whereby the owner of a State assisted
housing project is committed to expend or does
expend funds for the acquisition, construction,
demolition, replacement, major repair or renovation
of real property and improvements thereon for such
project, then the following shall apply and by
signing this agreement the Contractor certifies and
af?rms that it is Contractor?s equal employment
opportunity policy that:

 

The Contractor will not discriminate against
employees or applicants for employment because
of race, creed, color, national origin, sex, age,
disability or marital status, shall make and
document its conscientious and active efforts to
employ and utilize minority group members and
women in its work force on State contracts and will
undertake or continue existing programs of
affirmative action to ensure that minority group
members and women are afforded equal
employment opportunities without discrimination.
Affirmative action shall mean recruitment.
employment, job assignment, promotion,
upgradings, demotion, transfer, layoff, or termina-
tion and rates of 'pay or other forms of
compensation;

at the request of the contracting agency, the
Contractor shall request each employment agency,
labor union, or authorized representative of
workers with which it has a collective bargaining or
other agreement or understanding, to furnish a
written statement that such employment agency,
labor union or representative will not discriminate
on the basis of race, creed, color, national origin,
sex. age, disability or marital status and that such
union or representative will affirmatively cooperate
in the implementation of the Contractor's
obligations herein; and

 the Contractor shall state, in all solicitations or
advertisements for employees, that, in the
performance of the State contract, all qualified
applicants will be afforded equal employment
opportunities without discrimination because of
race, creed, color, national origin, sex, age,
disability or marital status.

Contractor will include the provisions of 
and above, in every subcontract over
$25,000.00 for the construction, demolition,
replacement, major repair, renovation, planning or
design of real property and improvements thereon
(the 'Work") except where the Work is for the
beneficial use of the Contractor. Section 312 does
not apply to: work, goods or services unrelated
to this contract; or (ii) employment outside New
York State. The State shall consider compliance
by a contractor or subcontractor with the
requirements of any federal law concerning equal
employment opportunity which effectuates the
purpose of this section. The contracting agency
shall determine whether the imposition of the
requirements of the provisions hereof duplicate or
conflict with any such federal law and if such
duplication or conflict exists, the contracting
agency shall waive the applicability of Section 312
to the extent of such duplication or conflict.
Contractor will comply with all duly promulgated
and lawful rules and regulations of the Department
of Economic Development's Division of Minority
and Women's Business Development pertaining
hereto.

13. CONFLICTING TERMS. In the event of a
conflict between the terms of the contract (including
any and all attachments thereto and amendments
thereof) and the terms of this Appendix A, the terms
of this Appendix A shall control.

14. GOVERNING LAW. This contract shall be
governed by the laws of the State of New York
except where the Federal supremacy clause
requires otherwise.

15. LATE PAYMENT. Timeliness of payment and
any interest to be paid to Contractor for late
payment shall be governed by Article it-A of the
State Finance Law to the extent required by law.

16. N0 ARBITRATION. Disputes involving this
contract, including the breach or alleged breach
thereof, may not be submitted to binding arbitration
(except where statutorily authorized), but must,

24

instead, be heard in a court of competent
jurisdiction of the State of New York.

17. SERVICE OF PROCESS. In addition to the
methods of service allowed by the State Civil
Practice Law Rules Contractor hereby
consents to service of process upon it by registered
or certified mail, return receipt requested. Service
hereunder shall be complete upon Contractor's
actual receipt of process or upon the State's receipt
of the return thereof by the United States Postal
Service as refused or undeliverable. Contractor
must notify the State, in writing, of each
and every change of address to which service of
process can be made. Service by the State to the
last known address shall be sufficient. Contractor
will have thirty (30) calendar days after service
hereunder is complete in which to respond.

18. PROHIBITION ON PURCHASE OF
TROPICAL HARDWOODS. The Contractor
certifies and warrants that all wood products to be
used under this contract award will be in
accordance with, but not limited to, the specifica?
tions and provisions of Section 165 of the State
Finance Law, (Use of Tropical Hardwoods) which
prohibits purchase and use of tropical hardwoods,
unless specifically exempted, by the State or any
governmental agency or political subdivision or
public benefit corporation. Qualification for an
exemption under this law will be the responsibility
of the contractor to establish to meet with the
approval of the State.

In addition, when any portion of this contract
involving the use of woods, whether supply or
installation, is to be performed by any
subcontractor, the prime Contractor will indicate
and certify in the submitted bid proposal that the
subcontractor has been informed and is in
compliance with specifications and provisions
regarding use of tropical hardwoods as detailed in
?165 State Finance Law. Any such use must meet
with the approval of the State; otherwise, the bid
may not be considered responsive. Under bidder
certifications, proof of qualification for exemption
will be the responsibility of the Contractor to meet
with the approval of the State.

 

19. FAIR EMPLOYMENT
PRINCIPLES. In accordance with the MacBride

Fair Employment Principles (Chapter 807 of the
Laws of 1992), the Contractor hereby stipulates
that the Contractor either has no business
Operations in Northern Ireland, or shall take
lawful steps in good faith to conduct any business

operations in Northern Ireland in accordance with
the MacBride Fair Employment Principles (as
described in Section 165 of the New York State
Finance Law), and shall permit independent
monitoring of compliance with such principles.

20. PROCUREMENT ACT OF 1992. it
is the policy of New York State to maximize
opportunities for the participation of New York
State business enterprises, including minority and
women?owned business enterprises as bidders,
subcontractors and suppliers on its procurement
contracts.

information on the availability of New York State
subcontractors and suppliers is available from:

NYS Department of Economic Development
Division for Small Business

Albany, New York 12245

Telephone: 518-292-5100

Fax: 518?292?5884

email: oga@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

833 Third Avenue

New York, NY 10017

212-803-2414

email: mwbecedi?cation?esdny.qov


orSearchPublicasg

The Omnibus Procurement Act of 1992 requires
that by signing this bid proposal or contract, as
applicable, Contractors certify that whenever the
total bid amount is greater than $1 million:

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;

The Contractor has complied with the Federal
Equal Opportunity Act of 1972 (PL. 92-261), as
amended;

25

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

The Contractor acknowledges notice that the
State may seek to obtain offset credits from foreign
countries as a result of this contract and agrees to
cooperate with the State in these efforts.

21. RECIPROCITY AND 
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 884 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 iurisdictions 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.

22. COMPLIANCE, WITH NEW YORK STATE
INFORMATION SECURITY BREACH AND
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).

23. WITH CONSULTANT
LAW. If this is a contract for
consulting services, defined for purposes of this
requirement to include analysis, evaluation,
research, training, data processing, computer
programming. engineering, environmental, health,
and mental health services, accounting, auditing.
paralegal, legal or similar services. then, in
accordance with Section 163 of the State
Finance Law (as amended by Chapter 10 of the
Laws of 2006), the Contractor shall timely,
accurately and properly comply with the
requirement to submit an annual employment

report for the contract to the agency that awarded
the contract. the Department of Civil Service and
the State Comptroller.

24. PROCUREMENT LOBBYING. To the extent
this agreement is a "procurement contract" as
defined by

State Finance Law Sections 139?} 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, the State may terminate
the agreement by providing written noti?cation to
the Contractor in accordance with the terms of the
agreement.

25. CERTIFICATION OF TO
COLLECT SALES AND COMPENSATING USE
TAX BY CERTAIN STATE CONTRACTORS
AFFILIATES AND SUBCONTRACTORS.

To the extent this agreement is a contract as
defined by Tax Law Section 5~a, if the contractor
fails to make the certi?cation required by Tax Law
Section 5-a or if during the term of the contract, the
Department of Taxation and Finance or the
covered agency, as defined by Tax Law 5~a,
discovers that the certification, made under penalty
of perjury, is false. then such failure to file or faise
certification shall be a material breach of this
contract and this contract may be terminated, by
providing written noti?cation to the Contractor in
accordance with the terms of the agreement, if the
covered agency determines that such action is in
the best interest of the State.

26. ACT. By entering into
this Agreement, Contractor certifies in accordance
with State Finance Law ?165-a that it is not on the
?Entities Determined to be Non-Responsive
Bidders/Offerers pursuant to the New York State
Iran Divestment Act of 2012" ("Prohibited Entities
List") posted at:


and:

 

Contractor further certifies that it will not utilize on
this Contract any subcontractor that is identified on
the Prohibited Entities List. Contractor agrees that
should it seek to renew or extend this Contract. it
must provide the same certification at the time the
Contract is renewed or extended. Contractor also
agrees that any proposed Assignee of this Contract
will be required to certify that it is not on the

26

Prohibited Entities List before the contract
assignment will be approved by the State.

During the term of the Contract. shouid the state
agency receive information that a person (as
defined in State Finance Law ?165-a) is in violation
of the above-referenced certifications, the state
agency will review such information and offer the
person an opportunity to respond. If the person
fails to demonstrate that it has ceased its
engagement in the investment activity which is in
violation of the Act within 90 days after the
determination of such vioiation, then the state
agency shall take such action as may be
appropriate and provided for by law, rule. or
contract, including, but not limited to, imposing
sanctions, seeking compliance, recovering
damages, or declaring the Contractor in default.

The state agency reserves the right to reject any
bid, request for assignment, renewal or extension
for an entity that appears on the Prohibited Entities
List prior to the award, assignment, renewal or
extension of a contract, and to pursue a
responsibility review with respect to any entity that
is awarded a contract and appears on the
Prohibited Entities list after contract award.

Appendix B: Form Engagement Letter

CONFIDENTIAL PRIVILEGED
FROM COUNSEL

New York State Department of Environmental Conservation
New York State Department of Labor

New York State Department of Public Service

New York State Department of Transportation

New York State Division of the Budget

New York State Division of Housing and Community Renewal

Dear Sir or Madam:

Fried, Frank, Harris, Shriver Jacobson LLP (?Fried Frank?, ?us? or the is
required, under applicable law, to set forth the scope of your recent engagement of the ?rm and
the basis for our fees. This letter is to let us each record our understandings with respect to these
and related matters. Although they may, therefore, seem a bit formal, please be assured that we
are delighted to be of assistance.



1. Scope of the Representation

Based on our discussions to date, we understand that we will act as counsel to the New York
State Department of Environmental Conservation, the New York State Department of Labor
New York State Department of Public Service, the New York State Department of
Transportation, the New York State Division of the Budget, and the New York State Division of
Housing and Community Renewal (the ?Clients? or ?you?) in connection with subpoenas issued
by the US. Attorney?s Of?ce for the Southern District of New York.

To the extent that you ask us, and we agreeyour af?liated entities
on other legai matters, those engagements will be on the same terms as this engagement (including
without limitation as to the matters relating to Section II, Waiver of Con?icts and Related Matters
beiow) unless otherwise agreed in writing. However, the fees and costs arrangement reflected in
Section VI below shall be iimited to this particular matter.

Fried Frank is a iimited liability partnership quali?ed under the laws of the State of

Delaware. In order to comply with local practice rules and for similar local considerations, Fried
Frank?s practice in particular jurisdictions may be conducted through, or in association with,

27

separate entities. Information about Fried Frank?s of?ces and affiliates can be found on our
website at Similar entities may be formed in the future to conduct
practice in those or other geographic areas and the current entities may be modi?ed or eliminated
without prior notice. All such existing and new entities are referenced herein collectively as ?Fried
Frank Entities.? You therefore consent to our ?rmwide sharing of con?dential information and
use of personnel and other resources in the work we undertake for you, and all references in this
letter to ?the ??rmwide? and similar words and phrases include all Fried Frank
Entities.

II. Waiver of Con?icts and Related Matters

As you know, we are a large ?rm with a broad client base and many matters. As a
consequence, and as we have discussed with you, there is always the possibility that we may be
asked by other clients, present or future, to act in an adverse position to you, or to represent clients
whose interests differ from yours in a matter. The rules against con?icts generally protect clients
from divided loyalty and the risk of improper disclosure of con?dential information and could
prevent us from accepting such other representations without a waiver of conflicts from you.

You con?rm that we have discussed, among other things, the material risks and reasonably
available alternatives to waiving such con?icts and that you speci?cally agree as follows.

You agree that our law ?rm will remain free, notwithstanding our representation of you in
the matter described above or in other matters, and whether or not during the course of our
representation of you, to represent any present or future client of Fried Frank with interests adverse
to you in any matter (including representation in litigation, arbitration or mediation in which you
and such other client are or may be adverse parties), so long as such matter is not substantially
related to matters in which we are then Currently representing you and does not require us to
utilize confidential information that we have learned from you while working on your behalf. Such
situations could include, for example, our representation of you as a borrower in an ordinary
course transaction where we represent the lender in other matters; (ii) our representation of you as
a lender in an ordinary course transaction when we represent the borrower in other matters; 
our representation of you in the current engagement while representing another party to the
transaction or litigation in a separate and unrelated transaction or litigation; (iv) our representation
of you as an issuer while simultaneously representing (in another matter) a ?nancial adviser to
you; or our representation of a debtor in an unrelated bankruptcy or restructuring matter in
which you are a creditor.

You understand further that in connection with our representation of other clients we may
learn information that is con?dential to that client but is also either relevant to matters on which
you have engaged Fried Frank or information that you may wish to know. You understand and
speci?cally agree that we will not disclose to you any such information without the consent of

such other clients. We will, of course, also refrain from revealing your con?dential information
to other clients, without your consent.

The attorneys practicing at Fried Frank?s of?ces in various jurisdictions are governed by
the rules of professional conduct and conflicts of interest that are prescribed by the proper
authorities in each jurisdiction. Although the rules of the various jurisdictions are often similar,

23

they are not identical. The rules in force in the speci?c jurisdictions in which Fried Frank attorneys
representing you are practicing apply to those attorneys, subject to any permitted modi?cations of
those rules re?ected in this engagement letter.

As we have also discussed with you, there are and will be occasions when attorneys in our
firm would find it useful and helpful to discuss their professional responsibilities with attorneys
educated and trained in such matters. The firm has appointed a General Counsel, Associate
General Counsel, and a Professional Responsibility Committee to perform that consultative
function, along with other duties. We believe that such consultations in and of themselves do not
create a con?ict with your interests. However, there is the possibility that a conflict of interest
might be deemed to exist between you and Fried Frank related to such consultations or the resulting
communications. Accordingly, by signing below, you consent to such conversations occurring,
you waive any con?ict that might be deemed to exist in connection with such consultations, and
you acknowledge that such communications are protected by Fried Frank?s attorney-client
privilege from disclosure to you.

?As you are aware, we are also representing various other New York State public authorities
(together, the ?Other Clients?) in connection with this matter. Additional New York State clients
may also be added to this group of Other Clients. As we have discussed, at present we see no
con?ict between your interests and the interests of the Other Clients in connection with this matter.
As we have also discussed, however, there may come a time when there are or may be such
con?icts. In the event that you or we believe that the ?rm cannot or should no longer represent
both you and one or more of the Other Clients, you understand and speci?cally agree that the ?rm
may withdraw from representing some or all of you or the Other Clients, and continue to represent
one or more of you or the Other Clients, even if your interests and the interests of the Other Clients
are or may be adverse. You understand further that if such a con?ict arises and it becomes
necessary for you to seek other counsel, the transition to new counsel could result in increased
costs and some inconvenience to you. We would, of course, assist in the transition to new counsel.

Our ?rm?s joint representation of clients also makes it necessary to con?rm that you
understand how we will handle confidential information and documents that we may obtain from
any client in connection with this matter. During our joint representation of both you and the Other
Clients, while we will protect information and documents we obtain from any client from the
unauthorized disclosure to third parties, there is no attorney-client privilege preventing the
disclosure of information and documents among the clients. Thus, we may share con?dential
information and documents that we obtain from each client regarding this matter. You further
understand that we may show a copy of this letter to the Other Clients. Furthermore, in the event
a conflict later develops among the Clients, or between you and the Other Clients, we will be able
to use any information we learned during the joint representation in our continuing representation
of the remaining clients. Notwithstanding the foregoing, you agree that Fried Frank is not required
to share all information it receives from, regarding, or in connection with the Other Clients, but
may, in its sole discretion, decide which information to share with you and which information not
to share with you, regardless of whether such information is advantageous or disadvantageous to
you.

If you have concerns about these joint representation or confidential information issues,
you may wish to consult with separate counsel about those issues.

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 Client Identi?cation

You agree that the persons or entities identi?ed as engaging us in Section 1, Scope of
Representation above, are our clients for the speci?c matters on which we are engaged and that
we shall not be deemed to represent any of its parents, subsidiaries or other af?liates unless we
expressly agree in writing to do so. Further, our representation of a corporation, partnership, joint
venture or other entity does not include a representation of the individuals or entities that are
shareholders, of?cers, directors, partners, joint venturers, employees, agents or members of such
entities or their interests in such entities. There is no attorney-client relationship between Fried
rank and any such related person or entity. The attorney-client privilege is solely between the
client and Fried Frank. Any proposed expansion of the representation to include any such related
persons or entities shall be subject to and contingent upon execution of an engagement letter
directly with those persons or entities.

IV. Fees

Our fees are based on the actual time spent on the matter involved by Fried Frank attorneys
and staff. You are charged a current ?xed rate for each attorney and employee depending on the
individual?s professional experience and other relevant factors. 1 will have primary responsibility
for your matter, with assistance from senior and junior associates and in consultation with other
partners, as we deem appropriate. For the purposes of this matter, and as previously agreed, our
fees shall be handled as reflected in the accompanying contract and agreement (the ?Agreement?)
between Fried Frank and the Clients. In addition, from time to time, and after consultation with
you, we may use the services of one or more 10 assist US in our
representation. This work will be supervised by nm'iaivy?fs and we will bill for their services as
legal services.

The time charges set forth above are benchmarks not absolutes to which Fried Frank
adheres without analysis of the time that has been spent. Each month, however, before bills are
submitted, a review is performed to assess the nature and quality of the services performed for the
client. In cases where there is a signi?cant disparity between the? services rendered or results
achieved and the time charged, the bills may be adjusted. carp/pr?

Our ?rm charges clients for certain disbursements. These reflect certain costs, other than
attorney, paralegal, and staff time, incurred in our representation. Some of these costs, like
facsimile transmission and photocopying, are incurred within the firm. Other costs, like overnight
delivery and some messenger service, are charged to the firm by outside providers. All charges
are designed to recover the ?rm?sactual cost of providing the services. For in-house services 
photocopying, computer research), you are charged the direct cost of the service the actual
cost of making a copy on the photocopy machine) plus an allocation of overhead exp nses directly

waxy, 

associated with the service. These charges may be revised from time to time to
reflect these costs. Our firm shall be reimbursed for all reasonable travel, long distance telephone
calls, printing, and other special expenses (transcript, subpoena fees, etc.) directly incurred in
connection with furnishing services in this matter. Payment of such expenses, where applicable,
shall be made pursuant to directives promulgated from time to time by the New York State of?ce
of the State Comptroller applicable to Management/Confidential employees. Moreover, as we
have agreed, secretarial services and electronic research charges shall not be passed along to you

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as a disbursement cost. Billing for ancillary services and expenses may lag the rendering or use
of those services by several months because of delays in the receipt of third-party bills and the
posting of accounts.

Given the nature of our engagement in this particular matter, and subjeCt to prior
authorization by you, we may also engage, on your behalf, one or more outside vendors to assist
us in performing certain services, including the collection and processing of electronically stored
information. You will be directly responsible for timely payment of any invoices issued by such
vendors, who will be engaged pursuant to a separate engagement arrangement, and Fried Frank
will not undertake any responsibility to pay those invoices where payment is not made by the
Clients.

Based on our discussions to date, we understand and acknowledge that you may need to
undertake certain administrative measures and procedural steps in order to retain the ?rm and pay
our invoices in connection with this matter. We will undertake reasonable efforts to assist you in
that regard. However, in connection with this engagement, the ?rm is not agreeing to a ?at fee
billing arrangement, and you remain responsible for our fees and compensation payable under the
terms hereof.

We are at all times available to discuss statements with our clients, and to explain the
services covered. in our view, good legal service requires that our clients feel comfortable
discussing our fees with us. We will bill on a basis. Payment is due within 30 days of
the date of each statement.

In certain circumstances, you may have the right to arbitrate a fee dispute with us pursuant
to Part 137 of the Rules of the Chief Administrator of the Courts of the State of New York.

Of course, you also always have the right to end our counsel relationship. Likewise, we
have the right to end our counsel relationship subject to applicable rules of professional conduct
and rules of court. Upon termination of our engagement by either you or by us, you shall remain
liable to us for all amounts due and to become due for the professional services rendered and
ancillary charges incurred prior to the termination date.

V. Costs of the Production of Files

In the event we are authorized or requested by you or on your behalf, or required by law as
we may determine, or by any legal process, to produce any of our ?les, your ?les stored
with us or our personnel as formal or informal witnesses or information sources with respect
to our engagement or potential engagements by you, you agree to pay or reimburse us for our
professional time (at then applicable hourly rates for personnel who have hourly rates and on a
reasonable basis otherwise) and ancillary services and expenses, as well as the fees and expenses
of our counsel as incurred in preparing and implementing a response to such a request.

. VI. Cooperation

In order to enable us to effectively render services to you in this matter, you have agreed
to disclose fully and accurately all relevant facts and to keep us apprised of all developments

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relating to this matter. You have agreed otherwise to cooperate fully with us and to be available
to attend any proceedings that may be required.

VII. Preserving Con?dences

It will be necessary in connection with representing you in this matter for you and Fried
Frank to share our respective mental impressions, opinions, conclusions, legal theories and strategy
considerations, and for you and Fried Frank to share con?dential and privileged communications.
In order to assist us in preserving the attomey-client and work product privileges that may apply,
such communications and documents should be shared only with a limited number of people
within your organization who are required to have that information in order to discharge their
responsibilities or have a speci?c need to know that information in order to assist in connection
with the matter in which we are representing you. Persons in the foregoing category with whom
information or documents are shared should be advised of the con?dential nature of the material.

Closing the Matter

As noted above, we are delighted that you have asked us to represent you. When a matter
that is the subject of this letter is concluded, however, you understand and agree that with respect
to that matter Fried Frank will have no ongoing obligation to advise you of changes in the law that
would or might affect our previous advice to you unless you and we agree in writing that we will
provide such advice.

Finally, maintaining files and documents that are created, collected or maintained in
connection with our representation of you can be burdensome and costly over the long term.
Consequently, following the conclusion of any matter that is the subject of this engagement letter,
we will offer you by letter an opportunity to receive the documents in our ?les that belong to you,
at your cost. If we do not hear from you within 45 days of the date of that letter, we will retain or
dispose of such documents as permitted or required by law. In either event, we will retain only
such documents (or copies thereof) as we think appropriate. Finally, with respect to all documents
that are in our files for your matters, you and we speci?cally agree that internal ?rm documents
are the exclusive property of the ?rm. Internal ?rm documents include, e.g. internal research
materials prepared by our junior attorneys for more senior attorneys, draft outlines of issues, and
emails, memos, notes and similar materials that have been created for the purpose of assisting
senior ?rm attorneys in providing advice to you.



Your approval of the accompanying Agreement con?rms that you have had an opportunity
to consult with other legal counsel or advisors of your choice regarding the matters set out in this
letter (including, without limitation, the matters set out under Section II, Waiver of Con?icts and
Related Matters).

I hope that you ?nd the discussion above to be comprehensive and helpful, and that you
will let me know if you have any questions. We wish to deal fairly and clearly with our clients in
these and all other aspects of our relationship.

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Please note that your continued instructing us on this matter, as well as your acceptance

of the accompanying Agreement, will constitute your full acceptance of the terms set out above
and attached.

Very truly yours,

FRIED, FRANK, HARRIS, SHRIVER JACOBSON LLP

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