06-Appendix A Roswell Park Required Clauses.docx

APPENDIX A

ROSWELL PARK REQUIRED CLAUSES

This Appendix A is attached to and made a part of the contract, quote, terms and conditions, purchase order, or other ordering document, including all attachments and appendices thereto (the “Agreement”), between Roswell Park Cancer Institute Corporation d/b/a Roswell Park Comprehensive Cancer Center (“Roswell Park”) and the vendor identified in the Agreement (“Vendor”). Capitalized terms used but not defined in this Appendix A shall have the meanings assigned to them in the Agreement.

1.

Version 12/2025-1 1 of 3

2. NON-COLLUSIVE BIDDING CERTIFICATION. In accordance with Section 2878 of the Public Authorities Law, if the Agreement was awarded based upon a competitive process involving the submission of bids or proposals, Vendor warrants, under penalty of perjury, that its bid or proposal was arrived at independently and without collusion aimed at restricting competition. Vendor further warrants that, at the time Vendor submitted its bid or proposal, an authorized and responsible person executed and delivered to Roswell Park a non-collusive bidding certification on Vendor’s behalf.

3. COMPTROLLER APPROVAL. In accordance with Section 2879-a of the Public Authorities Law, if the Agreement exceeds $1,000,000 and is not otherwise exempt pursuant to Section 2879-a(3) of the Public Authorities Law, the Agreement shall not be valid, effective, or binding upon Roswell Park until it has been approved by the New York State Comptroller.

4. PROCUREMENT LOBBYING. To the extent the Agreement is a “procurement contract” as defined by Section 139-j and Section 139-k of the State Finance Law, by signing the Agreement, Vendor certifies and affirms that all disclosures made in accordance with Section 139-j and Section 139-k of the State Finance Law, if applicable, are complete, true, and accurate. In the event that any such disclosure is found to be intentionally false or intentionally incomplete, Roswell Park may terminate the Agreement upon written notice to Vendor.

5. CERTIFICATION OF REGISTRATION TO COLLECT SALES TAX. To the extent the Agreement is a “contract” as defined by Section 5-a of the Tax Law, if Vendor fails to make the certification required therein, or if during the term of the Agreement, the Department of Taxation and Finance or Roswell Park discovers that the certification, made under penalty of perjury, is false, then such failure to file or false certification shall be a material breach of the Agreement and the Agreement may be terminated by providing written notification to Vendor in accordance with the terms of the Agreement, if Roswell Park determines that termination is in the best interest of the state of New York.

6. LATE PAYMENT. Timeliness of payment to Vendor and any interest to be paid to Vendor for late payment shall be governed by Section 2880 of the Public Authorities Law and the policy adopted by Roswell Park in accordance therewith.

7. APPLICABLE LAW. Vendor shall comply with all Applicable Law in its performance of the Agreement, including, but not limited to, obtaining and maintaining all certifications, credentials, authorizations, licenses, and permits necessary to perform Vendor’s obligations under the Agreement. “Applicable Law” means all applicable federal, state, and local laws, ordinances, rules, and regulations, including, but not limited to, the relevant regulations of any governmental agency or quasi-governmental organization.

8. HIPAA COMPLIANCE. If Vendor qualifies as Roswell Park’s “business associate” under the Agreement, the parties shall execute a business associate agreement prior to Vendor accessing, creating, receiving, or maintaining any “protected health information” (as those terms are defined under 45 CFR Section 160.103). If Vendor is not a business associate of Roswell Park but inadvertently receives protected health information from or on behalf of Roswell Park under the Agreement, Vendor shall: (i) immediately secure the protected health information to prevent unauthorized use or disclosure; (ii) promptly notify Roswell Park; and (iii) return or destroy the protected health information in accordance with Roswell Park’s instructions.

9. GOVERNING LAW, JURISDICTION, AND VENUE. The Agreement shall be governed by and construed in accordance with the laws of the state of New York, without regard to its conflict of laws principles. Disputes arising out of or relating to the Agreement shall be brought in a court of competent jurisdiction in Erie County, New York.

10. ONSITE SERVICES. To the extent that Vendor performs any services onsite at Roswell Park facilities, Vendor shall comply with all policies, procedures, rules, and regulations applicable to Vendor’s onsite activity and made available to Vendor, including, without limitation, onboarding requirements (e.g., verification of credentials, health screening, and proof of vaccination/inoculation), and any other conditions imposed by governmental authorities, accrediting agencies, and/or Roswell Park as necessary to protect the health and safety of Roswell Park’s patients, staff, volunteers, visitors, and vendors. Vendor shall not engage in any onsite activity that is in violation of, or would cause Roswell Park to be in violation of, state and county Department of Health regulations and guidance, requirements of The Centers for Medicare and Medicaid Services (“CMS”), the standards of The Joint Commission, or other Applicable Law.

11. RECORDS.

11.1 New York State Requirements. Vendor shall establish and maintain complete and accurate books, records, documents, accounts, and other evidence directly pertinent to Vendor’s performance under the Agreement (collectively “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. In the event of an audit of Roswell Park that involves the Agreement and/or Roswell Park’s expenditures thereunder, Vendor shall make Records available to Roswell Park and/or the government agency conducting such audit of Roswell Park, as may be requested. Roswell Park shall take reasonable steps to protect from public disclosure any of the Records that are exempt from disclosure under Section 87 of the Public Officers Law, provided that: (i) Vendor shall timely inform an appropriate Roswell Park official, in writing, that said Records should not be disclosed; (ii) said Records shall be sufficiently identified for non-disclosure by Vendor; and (iii) designation of said Records as exempt under Section 87 of the Public Officers Law is reasonable.

11.2 CMS Requirements. In accordance with 42 C.F.R. Section 420.302 and Section 1861(V)(1)(I) of the Social Security Act, if the Agreement involves the provision of services that are subject thereto, the cost or value of which is $10,000 or more over a twelve (12)-month period, until the expiration of four (4) years after the furnishing of services under the Agreement, Vendor shall make available to the United States Department of Health and Human Services (“HHS”), and to the United States Comptroller General, and their duly authorized representatives, a copy of the Agreement as well as Vendor’s, its subcontractors’, and its related organizations’ related contracts, books, documents, and records as necessary to certify the nature and extent of the costs of the services performed under the Agreement.

12. CORPORATE COMPLIANCE. In accordance with the Deficit Reduction Act of 2005, Roswell Park has established a program and written policies for purposes of informing and educating employees, agents, contractors, vendors, and suppliers of federal laws that serve to prevent and detect fraud and abuse in federal healthcare programs. Roswell Park’s Corporate Compliance Program is described at https://www.roswellpark.org/about-us/board-directors/corporate-compliance and https://www.roswellpark.org/sites/default/files/2023-05/126.1-roswell-park-comprehensive-cancer-center-corporate-compliance-summary-policy-2023-05-19-02-03.pdf, as may be updated from time-to-time (the “Compliance Program”). In accordance with 18 NYCRR Section 521-1.3, if Vendor will act as a contractor having authority within a required provider risk area (e.g., physician services, nursing services, billing or coding services), Vendor shall comply with the Compliance Program, and Roswell Park may terminate the Agreement in the event of Vendor’s non-compliance.

13. ETHICS COMPLIANCE. By signing the Agreement, Vendor certifies that Vendor has complied with, and shall continue to comply with, Sections 73 and 74 of the Public Officers Law and other Applicable Law establishing ethical standards for the conduct of business with New York State agencies. Vendor represents and warrants that, to the best of Vendor’s knowledge after reasonable inquiry, Vendor’s entering into the Agreement and performance thereunder does not, and will not, create any actual or potential conflict of interest. Vendor will promptly notify Roswell Park in writing of any change that may give rise to a potential conflict of interest.

14. ANTI-KICKBACK STATUTE. It is the intent of Roswell Park and Vendor to comply with the Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)) and the discount safe harbor and warranties safe harbor regulations set forth in 42 C.F.R. Sections 1001.952(h) and (g), respectively. To the extent that the pricing offered under the Agreement constitutes a discount or other reduction in price under the Anti-Kickback Statute, Vendor will provide Roswell Park with invoices that fully and accurately disclose the discounted price of all items purchased under the Agreement to allow Roswell Park to comply with the discount safe harbor regulations, including sufficient information to enable Roswell Park to accurately report its actual cost for such purchases.

15. WARRANTY OF NON-EXCLUSION. Vendor represents and warrants that, to the best of Vendor’s knowledge, neither Vendor, nor any of Vendor’s employees, independent contractors, or agents performing any work under the Agreement, nor any of Vendor’s owners, officers, or directors (each, a “Screened Person”), is or has ever been an Ineligible Person. An “Ineligible Person” means a person who: (i) has been excluded, debarred, suspended, or otherwise deemed ineligible to participate in any federal or state healthcare or procurement program; (ii) has been convicted of a criminal offense that falls within the ambit of 42 U.S.C. Section 1320a-7(a); and/or (iii) appears on any of the following exclusion lists (collectively, the “Exclusion Lists”): (a) the HHS/Office of Inspector General List of Excluded Individuals and Entities (currently available at https://www.oig.hhs.gov/exclusions/index.asp); (b) the System for Award Management (formally the General Services Administration’s List of Parties Excluded from Federal Programs) (currently available at https://sam.gov/content/exclusions/federal); and/or (c) the New York State Medicaid Exclusion List (currently available at https://omig.ny.gov/medicaid-fraud/medicaid-exclusions), as well as the state Medicaid database maintained by the state within which the Screened Person resides. If Vendor will supply health care-related items or services (e.g., supplying or servicing equipment or products used in patient care), Vendor shall screen all Screened Persons against the Exclusion Lists no less than annually. If Vendor will act as a contractor having authority within a required provider risk area (e.g., performing physician services, nursing services, billing or coding services) as described in 18 NYCRR Section 521-1.3, or Vendor will perform other services that are directly reimbursed by a federal or state healthcare program, Vendor will shall screen all Screened Persons against the Exclusion Lists no less than monthly, or such other frequency that may be required under Applicable Law. If, at any time during the term of the Agreement, any Screened Person becomes an Ineligible Person, Vendor shall promptly notify Roswell Park in writing. Upon receipt of such notice, or upon Roswell Park otherwise determining that any Screened Person is an Ineligible Person, Roswell Park shall have the right to immediately terminate the Agreement without penalty. Vendor shall provide Roswell Park with written evidence of compliance with this Section upon request.

16. WAGES AND HOURS. This Section shall apply to the Agreement if it is a public work contract governed by Article 8 of the Labor Law or a building service contract governed by Article 9 of the Labor Law. No employees of Vendor or of any subcontractor of Vendor may work more than the number of hours or days permitted under the Labor Law, except as otherwise provided in the Labor Law and in the prevailing wage and supplement schedules issued by the New York Department of Labor (the “DOL”). Vendor shall, and shall require its subcontractors to, 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 DOL in accordance with the Labor Law. Vendor understands and agrees that the filing of payrolls in a manner consistent with Section 220(3-a) of the Labor Law shall be a condition precedent to payment by Roswell Park of any sums due and owing for work performed under the Agreement.

17. NON-DISCRIMINATION UNDER THE LABOR LAW. To the extent that the Agreement will be performed within New York State, and is a contract for: (i) the construction, alteration, or repair of any public building or public work, or for the manufacture, sale, or distribution of materials, equipment, or supplies, as described in Section 220-e of the Labor Law; or (ii) a building service contract as defined in Section 230 of the Labor Law; Vendor agrees that:

17.1 Non-Discrimination in Hiring. In the hiring of employees for the performance of work under the Agreement or any subcontract thereunder, neither Vendor, nor any subcontractor of Vendor, or any person acting on behalf of Vendor or any such subcontractor, shall by reason of race, creed, color, disability, sex, or national origin discriminate against any citizen of New York State who is qualified and available to perform the work to which the employment relates.

17.2 Non-Discrimination and Non-Intimidation in Employment. Neither Vendor, nor any subcontractor of Vendor, or any person acting on behalf of Vendor or any subcontractor, shall in any manner discriminate against or intimidate any employee hired for the performance of work under the Agreement on account of race, creed, color, disability, sex, or national origin.

17.3 Penalties and Termination. Roswell Park may deduct from the amount payable to Vendor under the Agreement a penalty in the statutory amount for each person for each calendar day during which such person was discriminated against or intimidated in violation of Labor Law Section 220-e or Section 239 of the Labor Law. The Agreement may be cancelled or terminated by Roswell Park, and all moneys due or to become due thereunder may be forfeited, for a second or any subsequent violation of the terms of this Section.

18. PROMOTION OF NEW YORK BUSINESS ENTERPRISES.

18.1 Policy Statement. It is the policy of New York State to encourage the use of New York State subcontractors and suppliers, and to promote the participation of certified New York State minority-owned business enterprises (“MBEs”) and certified New York State women-owned business enterprises (“WBEs”) (MBEs and WBEs are collectively referred to as “MWBEs”) where possible, in the procurement of goods and services.

18.2 New York State Subcontractors and Suppliers. Information on the availability of New York State subcontractors and suppliers is available from: New York State Department of Economic Development, Division for Small Business, Albany, New York 12245 (Telephone: (518) 292-5100; Fax: (518) 292-5884; Email: opa@esd.ny.gov).

18.3 New York State Certified MWBEs. A directory of MWBEs is available from: New York State Department of Economic Development, Division of Minority and Women's Business Development, 633 Third Avenue, New York, New York 10017 (Telephone: (212) 803-2414; Email: mwbecertification@esd.ny.gov; Website: https://ny.newnycontracts.com/FrontEnd/VendorSearchPublic.asp).

18.4 Reasonable Efforts. The Omnibus Procurement Act of 1992 (Chapter 844 of the Laws of 1992, codified in Section 139-i of the State Finance Law and Section 2879(3)(n)–(p) of the Public Authorities Law), requires that if the total amount of the Agreement is greater than $1,000,000, by signing the Agreement, Vendor certifies that Vendor: (i) has made reasonable efforts to encourage the participation of New York State business enterprises as suppliers and subcontractors, including MWBEs, under the Agreement; (ii) has complied with the Federal Equal Opportunity Act of 1972 (P.L. 92-261); and (iii) agrees to make reasonable efforts to provide notification to New York State residents of employment opportunities under the Agreement, listing any such positions with the Job Service Division of the DOL, or providing such notification in such manner as is consistent with existing collective bargaining agreements. Vendor agrees to document the foregoing efforts and to provide said documentation to New York State upon request. Vendor acknowledges notice that New York State may seek to obtain offset credits from foreign countries as a result of the Agreement and agrees to cooperate with New York State in these efforts.

19. MWBE AND EEO REQUIREMENTS. To the extent that the Agreement is a “state contract” as defined under Article 15-A of the Executive Law, and is not otherwise exempt or excluded from Roswell Park’s Master Goal Plan, Vendor shall comply with applicable provisions of Article 15-A and 5 NYCRR Parts 140-147. To the extent that the Agreement is subject to such provisions, Roswell Park’s Appendix A-1 shall be attached hereto. Notwithstanding the foregoing, to the extent that any such provision is duplicative of or in conflict with federal law, Roswell Park shall waive the applicability of such provision to the extent of such duplication or conflict.

20. RECIPROCITY AND SANCTIONS PROVISIONS. Vendor is hereby notified that if its 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 it offers will be substantially produced or performed outside New York State, the Omnibus Procurement Act 1994 and 2000 amendments (Chapter 684 and Chapter 383, respectively, codified in Section 165(6) of the State Finance Law and Section 2879(5) of the Public Authorities Law), require that Vendor be denied contracts which they would otherwise obtain. As of October 2019, the list of discriminatory jurisdictions subject to this provision includes the states of South Carolina, Alaska, West Virginia, Wyoming, Louisiana, and Hawaii.

21. INTERNATIONAL BOYCOTT PROHIBITION. In accordance with Section 220-f of the Labor Law, if the Agreement exceeds $5,000, Vendor agrees, as a material condition of the Agreement, that neither Vendor nor any substantially owned or affiliated person, firm, partnership, or corporation has participated, is participating, or shall participate in an international boycott in violation of the federal Export Administration Act of 1979 (50 USC app. Sections 2401 et seq.) or regulations thereunder.

22. PROHIBITION ON PURCHASE OF TROPICAL HARDWOODS. If the Agreement is a contract for the construction of any public work, building maintenance, or improvement which involves the use of wood products, Vendor certifies and warrants that all wood products to be used under the Agreement by Vendor or any subcontractor of Vendor will comply with Section 165(2) of the State Finance Law, which prohibits the use of tropical hardwoods, unless specifically exempted.

23. PROHIBITION ON RUSSIAN BUSINESS OPERATIONS. Pursuant to Executive Order No. 16, Roswell Park is prohibited from entering into or renewing a contract with an entity conducting business operations in Russia in violation of Executive Order No. 16. Vendor acknowledges that Vendor has submitted a written certification to Roswell Park certifying Vendor’s compliance with Executive Order No. 16. Vendor shall notify Roswell Park promptly in the event such certification is no longer accurate. In the event that any such certification is found to be false, incomplete, or no longer accurate, Roswell Park may terminate the Agreement upon written notice to Vendor.

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