7200723182TC.pdf

Contract PSXXXXX, Vendor Name Page 1

AGREEMENT FOR

HEAVY EQUIPMENT RENTAL (STATEWIDE)

BY AND BETWEEN

NEW YORK STATE

OFFICE OF GENERAL SERVICES

AND

(SEE AWARD DOCUMENT FOR

CONTRACTORS)

GROUP 72007 – 23182 Heavy Equipment Rental (Statewide)

Contract # PCXXXXX, Contractor Name Page 2

TABLE OF CONTENTS

1. INTRODUCTION

1.1. OVERVIEW AND SCOPE

1.2. ESTIMATED QUANTITIES

1.3. DEFINITIONS AND ACRONYMS

2. CONTRACT TERMS AND CONDITIONS

2.1. CONTRACT DOCUMENTS AND CONFLICT OF TERMS

2.2. APPENDIX B MODIFICATIONS

2.3. CONTRACT TERM AND EXTENSIONS

2.4. SHORT TERM EXTENSION

2.5. NON-STATE AGENCIES PARTICIPATION IN CENTRALIZED CONTRACTS

2.6. NEW ACCOUNTS

2.7. EXTENSION OF USE

2.8. NEW YORK STATE VENDOR RESPONSIBILITY

2.9. CONTRACTOR REQUIREMENTS AND PROCEDURES FOR BUSINESS PARTICIPATION OPPORTUNITIES FOR NYS CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES AND EQUAL EMPLOYMENT OPPORTUNITIES

FOR MINORITY GROUP MEMBERS AND WOMEN

2.10. PARTICIPATION OPPORTUNITIES FOR NEW YORK STATE CERTIFIED SERVICE-DISABLED VETERAN OWNED

BUSINESSES

2.11. CONTRACTOR INSURANCE REQUIREMENTS

2.12. NEW YORK STATE STATEWIDE FINANCIAL SYSTEM

2.13. HEAVY EQUIPMENT RENTAL PRICE

2.14. DELIVERY CHARGE

2.15. CEILING PRICE

2.16. CONTRACTOR PRICELIST

2.17. PERIODIC RECRUITMENT

2.18. “OGS OR LESS” GUIDELINES

2.19. PRICE STRUCTURE

2.20. ORDERING

2.21. MINIMUM ORDER

2.22. PROCUREMENT CARD

2.23. INVOICING AND PAYMENT

Contract # PCXXXXX, Contractor Name Page 3

2.24. PRODUCT DELIVERY

2.25. DEFAULT ON DELIVERY

2.26. LIQUIDATED DAMAGES

2.27. PRODUCT ACCEPTANCE

2.28. AUTHORIZED USER RESPONSIBILITIES/RIGHTS

2.29. CONTRACT ADMINISTRATION

2.30. OVERLAPPING CONTRACT PRODUCTS

2.31. DIESEL EMISSION REDUCTION ACT OF 2006

2.32. CONSUMER PRODUCTS CONTAINING MERCURY

2.33. TRAFFIC INFRACTIONS

2.34. REPORT OF CONTRACT USAGE

2.35. DRUG AND ALCOHOL USE PROHIBITED

2.36. CENTRALIZED CONTRACT MODIFICATIONS

2.37. NYS TAX LAW SECTION 5-a

3. SPECIFICATIONS

3.1. HEAVY EQUIPMENT REQUIREMENTS

3.2. RENTAL SERVICE REQUIREMENTS

4. PROCUREMENT INSTRUCTIONS FOR AUTHORIZED USERS

5. GENERAL PROVISIONS

5.1. NOTICES

5.2. CAPTIONS

5.3. SEVERABILITY

5.4. COUNTERPARTS

5.5. ENTIRE AGREEMENT

APPENDICES:

Appendix A – Standard Clauses for NYS Contracts (October 2019) Appendix B – General Specifications (April 2016) Appendix C – Federal Emergency Management Agency Terms and Conditions (May 2020)

ATTACHMENTS:

Attachment 1 – Pricing Attachment 2 – Insurance Requirements Attachment 3 – Report of Contract Usage Attachment 4 – Rental Quote Forms Attachment 5 – Contractor Information

Contract # PCXXXXX, Contractor Name Page 4

STATE OF NEW YORK

OFFICE OF GENERAL SERVICES

AGREEMENT # PC_________

CENTRALIZED CONTRACT FOR THE ACQUISITION OF

HEAVY EQUIPMENT RENTAL (STATEWIDE)

THIS AGREEMENT (hereinafter the “Contract” or the “Agreement”) is made this ____ day of _________, 2020, by and between the People of the State of New York, acting by and through the Commissioner of the Office of General Services (OGS), whose office is on the 36th Floor, Corning Tower, Governor Nelson A. Rockefeller Empire State Plaza, Albany, New York 12242 (hereinafter referred to as the “State” or “OGS”) and ________________ having its principal place of business at ________________ (hereinafter referred to as the “Contractor”). OGS and the Contractor are collectively referred to as the “Parties.”

WHEREAS, OGS is statutorily authorized to enter into centralized contracts for commodities for use by New York State agencies, departments, public authorities, political subdivisions and any other entities authorized by statute to utilize its centralized contracts (hereinafter “Authorized Users”); and

WHEREAS, OGS has identified a need by New York State agencies and other Authorized Users for Heavy Equipment Rental, as further described herein; and

WHEREAS, OGS conducted a non-competitive procurement to identify the bidder(s) which could provide the Heavy Equipment Rental, referred to as IFB #23182 (hereinafter the “IFB” or the “Solicitation”), which was advertised on November 26, 2019 in the New York State Contract Reporter, as required by New York State Economic Development Law; and

WHEREAS, awards were made as backdrop contracts to Contractors for Rental by Authorized Users of the Contractor’s complete Product Line that meets the Contract definition of Heavy Equipment, in accordance with the method of award set forth in the IFB; and

WHEREAS, the State has determined: that the Contractor submitted a responsive proposal; that the Contractor is a responsible vendor; and that the Contractor is willing to provide the commodities set forth herein under the terms and conditions contained herein.

NOW THEREFORE, in consideration of the terms hereinafter mentioned and also the mutual covenants and obligations moving to each party hereto from the other, the Parties hereby agree as follows:

Contract # PCXXXXX, Contractor Name Page 5

INTRODUCTION

1.1. OVERVIEW AND SCOPE

The purpose of this Contract is to allow for Rental by Authorized Users of any item included in the Contractor’s complete Product Line that meets the Contract definition of Heavy Equipment. This Contract is for the Product Line and associated Ceiling Prices set forth in Attachment 1 – Pricing.

Heavy Equipment Rental shall be on an as-needed basis by Authorized Users via a competitive Rental Quote process (see Section 4 Procurement Instructions for Authorized Users), with Rental provided, at a minimum, to Authorized User locations in the counties set forth in the Rental Area document posted on the OGS website.

Purchase of Heavy Equipment shall not be permitted under this Contract. This Contract is intended for short term Rental (i.e., Daily, Weekly or Monthly). Long term leasing (e.g., six month or more Rental Period), shall not be permitted under this Contract.

1.2. ESTIMATED QUANTITIES

This Contract is an estimated quantity Contract. No specific quantities are represented or guaranteed and the State provides no guarantee of individual Authorized User participation. The Contractor must furnish all quantities actually ordered at or below the Contract prices. The individual value of this Contract is indeterminate and will depend upon the number of Contracts issued and the competitiveness of the pricing offered. Authorized Users will be encouraged to purchase from Contractors who offer the Products and pricing that best meet their needs in the most practical and economical manner. See Appendix B, Section 28 Estimated/Specific Quantity Contracts and Appendix B, Section 25 Participation in Centralized Contracts.

Numerous factors could cause the actual quantities of Products purchased under this Contract to vary substantially from the estimates provided in the Solicitation. Such factors include, but are not limited to, the following:

• Such Contracts may be non-exclusive Contracts.

• There is no guarantee of quantities to be purchased, nor is there any guarantee that demand will continue in any manner consistent with previous purchases.

• The individual value of each Contract is indeterminate and will depend upon actual Authorized User demand and actual quantities ordered during the contract period.

• The State reserves the right to terminate any Contract for cause or convenience prior to the end of the term pursuant to the terms and conditions of the Contract.

• Contract pricing that is lower than anticipated could result in a higher quantity of purchases by Authorized Users than anticipated.

• Contract pricing that is higher than anticipated could result in a lower quantity of purchases by Authorized Users than anticipated.

1.3. DEFINITIONS AND ACRONYMS

Capitalized terms used in this Contract shall be defined in accordance with Appendix B, Definitions, or as below.

“24x7x365” shall mean 24 hours a day, seven days a week, and 365 days a year (including the 366th day in a leap year).

“Business Day” shall refer to Monday through Friday from 8:00 AM – 5:00 PM ET, excluding NYS Holidays and federal holidays.

“Ceiling Price” shall refer to a maximum price that Bidder/Contractor may charge an Authorized User for a service offered under the Contract.

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“Consumables” shall mean a Product intended to be used in the operation of Heavy Equipment and then must be replaced for continued operation (e.g., fuel, lubricants, filters, tips, teeth, blades, cutting edges).

“Contract Pricelist” shall refer to the Excel document, set forth in Attachment 1 – Pricing which lists, among other things, a description of the Heavy Equipment available for Rental, a Ceiling Price for Daily, Weekly and Monthly Rental Periods, and Delivery Charge(s), for the Heavy Equipment available for Rental.

“Contractor” as defined in Appendix B, Section 2 Definitions.

“Daily” shall refer to a Rental Period of twenty-four (24) consecutive hours or less, computed from the hour of commencement of the Rental Period up to but not including the same hour in the next day and shall apply when the number of hours the Heavy Equipment is operated in such twenty-four (24) hours period does not exceed eight (8) hours of use.

“Delivery” shall mean the transport of the Heavy Equipment from the Delivery Origin to the location designated by the Authorized User on the Purchase Order (e.g., location where the Authorized User shall use the Heavy Equipment or the vehicle that the Authorized User shall use to transport the Heavy Equipment), and the return of the Heavy Equipment from the location designated by the Authorized User to the location designated by the Bidder/Contractor.

“Delivery Charge” shall mean the total dollar amount charged to the Authorized User for Delivery. The Delivery Charge is in addition to the Daily, Weekly or Monthly Rental Price.

“Delivery Origin” shall mean the location from which the Bidder/Contractor delivers Heavy Equipment to the Authorized User (i.e., Bidder/Contractor’s place of business or other location specified by the Bidder/Contractor). The Delivery Origin shall be expressed as the applicable NYS County on the Rental Quote form.

“Executive Agency(ies)” shall mean all State departments, offices or institutions but, for the purposes of this procurement, excludes the State University of New York and City University of New York. Furthermore, such term shall not include the legislature, the judiciary, public benefit corporation, public authority, or local government entity.

“Heavy Equipment” shall refer to equipment which is intended for heavy work such as earthmoving, construction, lifting containers or materials, drilling holes in earth or rock, concrete or paving application or street sweeping (e.g., aerial lifts, large towable air compressors, generators and light towers, concrete saws, earth compactors and rollers, backhoes, motor graders, skid-steer loaders, bulldozers, wheel loaders, trenchers, utility tractors, excavators, forklifts, sweepers, utility vehicles, trucks with various body types including pickup trucks intended for heavy work, and other related attachments and equipment.

“Make” shall refer to the Heavy Equipment OEM company name (e.g., Case, Caterpillar, John Deere).

“May” denotes the permissive in a clause or specification of this contract. “May” does not mean “required.” Also see “shall” and “Must.”

“Must” denotes the imperative in a clause or specification of this Contract. “Must” is synonymous with “required.”. Also see “shall” and “May.”

“Model” shall refer to the OEM name or code used to identify particular a subset of a Make (e.g., 621F, 908H2, 624K)

“Model Year” shall mean the year used to designate a discrete Model, irrespective of the calendar year in which the equipment was actually produced, provided that the production period does not exceed twenty-four (24) months.

“Monthly” shall refer to a Rental Period of twenty-eight (28) consecutive calendar days, computed from the date of commencement of the Rental Period up to but not including the same date in the next calendar month and shall apply when the number of hours the Heavy Equipment is operated in any twenty-eight (28) day period does not exceed 176 hours of use.

Contract # PCXXXXX, Contractor Name Page 7

“MWBE” shall refer to a business certified with NYS Empire State Development (“ESD”) as a Minority- and/or Women-owned Business Enterprise.

“N/A” is a common abbreviation for not applicable or not available, used to indicate when information in a certain field on a table is not provided, either because it does not apply to a particular case in question or because it is not available.

“NYS” shall mean New York State

“NYS Contract Price” shall mean the dollar amount charged to the Authorized User for Product provided under the Contract.

“NYS Holidays” refers to the legal holidays for State employees in the classified service of the executive branch, as more particularly specified on the website of the NYS Department of Civil Service. This includes the following: New Year’s Day; Martin Luther King Day; Washington’s Birthday (observed); Memorial Day; Independence Day; Labor Day;

Columbus Day; Veteran’s Day; Thanksgiving Day; and Christmas Day.

“NYS Vendor ID” shall mean the ten-character identifier issued by New York State when a vendor is registered on the Vendor File.

“OEM” shall mean Original Equipment Manufacturer.

“OGS” shall mean the New York State Office of General Services.

“Procurement Services” shall refer to a business unit of OGS, formerly known as New York State Procurement (“NYSPro”) and Procurement Services Group (“PSG”).

“Product Line” shall mean a group of related Heavy Equipment offered for Rental by a single company in their usual course of business.

“Rental” shall mean the provision of Heavy Equipment owned by the Bidder/Contractor to an Authorized User for a mutually agreed-upon time period (Daily, Weekly or Monthly) and for a mutually agreed-upon price.

“Rental Period” shall mean the time period from the date and time upon which transit of the Heavy Equipment to the location designated by the Authorized User (e.g., location where the Authorized User shall use the Heavy Equipment or the vehicle that the Authorized User shall use to transport the Heavy Equipment), begins and the date and time upon which transit of the Heavy Equipment ends at the Bidder/Contractor’s place of business or other location designated by the Bidder/Contractor.

“Rental Price” shall mean the NYS Contract Price charged to the Authorized User for a Rental for the applicable Rental Period, excluding the Delivery Charge, if applicable.

“Rental Quote” shall refer to a quote for Heavy Equipment Rental, or notification of the unavailability of the requested Heavy Equipment, provided by a Contractor to an Authorized User in response to a Rental Quote Request, on a Rental Quote form. See Attachment 4 – Rental Quote Forms.

“Rental Quote Request” shall refer to a request from an Authorized User for a Rental Quote. See Attachment 4 – Rental Quote Forms.

“Rental Quote Process” shall refer to the competitive procurement process that a Contractor must participate in to provide Heavy Equipment Rental under the Contract.

“SDVOB” shall refer to a NYS-certified Service-Disabled Veteran-Owned Business.

“Shall” denotes the imperative in a contract clause or specification. Also see “Must” and “May.”

“State Agency(ies)” shall refer to all New York State departments, offices or institutions, including Executive Agencies.

Contract # PCXXXXX, Contractor Name Page 8

“Weekly” shall refer to a Rental Period of seven (7) consecutive calendar days, computed from the date of commencement of the Rental Period up to but not including the same day in the following week and shall apply when the number of hours the Heavy Equipment is operated in any seven (7) day period does not exceed forty (40) hours of use.

“Written” shall mean any writing that makes use of words. Examples of Written communications include email, facsimile, Internet websites, letters, proposals, and contracts.

2. CONTRACT TERMS AND CONDITIONS

This section sets forth the terms and conditions of the Contract.

2.1. CONTRACT DOCUMENTS AND CONFLICT OF TERMS

This Contract is composed of the documents set forth below. In the case of any conflict(s) among these documents, conflicts shall be resolved in the following order of precedence:

1. Appendix A – Standard Clauses for New York State Contracts (October 2019)

2. This Contract

3. Appendix B – General Specifications (April 2016)

4. Appendix C – Federal Emergency Management Agency Terms and Conditions (May 2020)

5. Attachment 1 – Pricing

6. Attachment 2 – Insurance Requirements

7. Attachment 3 – Report of Contract Usage

8. Attachment 4 – Rental Quote Forms

9. Attachment 5 – Contractor Information

2.2. APPENDIX B MODIFICATIONS

The following Appendix B clauses are hereby modified for the purposes of this Contract:

A. Appendix B, Section 31 Product Delivery, is deleted in its entirety and replaced by Section 2.24 Product Delivery of this Contract.

B. Appendix B, Section 61 Product Acceptance, is deleted in its entirety and replaced by Section 2.27 Product

Acceptance of this Contract.

2.3. CONTRACT TERM AND EXTENSIONS

The Contract will be in effect for a term of five (5) years from the date of OGS approval of the first Contract awarded pursuant to the Solicitation. The Contract term shall commence after all necessary approvals and shall become effective upon mailing or electronic communication of the final executed documents to the Contractor (see Appendix B, Section 22 Contract Creation/Execution).

All OGS Centralized Contracts resulting from the Solicitation shall have a co-terminus end date, including those Contracts awarded during any subsequent periodic recruitment. At the State’s option, the Contract may be extended as set forth in Appendix B, Section 23 Contract Term – Extension. Whether the optional extension is exercised is at the sole discretion of the State. A Contractor shall retain the right to decline a Contract extension offered under this section. Any Contract extension will be under the same terms and conditions, subject to any additional applicable statutory and policy requirements.

The Contract term provided for in this section shall extend 6 months beyond its termination date only for Authorized Users whose contracts must be registered with the Office of the New York City Comptroller. During the 6-month period the definition of Authorized User shall be deemed to refer only to Authorized Users whose contracts must be registered with the Office of the New York City Comptroller. This extension is in addition to any other extensions available under the Contract. The extension provided for in this paragraph shall be upon the then-existing terms and conditions; provided, however, during such extension an Authorized User, as defined in this paragraph, may agree to amend such terms and

Contract # PCXXXXX, Contractor Name Page 9 conditions solely to comply with changes in statutory requirements (e.g. changes in minimum, prevailing or living wages, or regulated services).

2.4. SHORT TERM EXTENSION

This section shall apply in addition to any rights set forth in Appendix B, Section 23 Contract Term – Extension. In the event a replacement Contract has not been issued, this Contract may be extended unilaterally by the State for an additional period of up to 30 calendar days upon notice to the Contractor with the same terms and conditions as the original Contract and any approved modifications. With the concurrence of the Contractor, the extension may be for a period of up to 90 calendar days in lieu of 30 calendar days. However, this extension automatically terminates should a replacement Contract be issued in the interim.

2.5. NON-STATE AGENCIES PARTICIPATION IN CENTRALIZED CONTRACTS

New York State political subdivisions and others authorized by New York State law may participate in Centralized Contracts. These include, but are not limited to, local governments, public authorities, public school and fire districts, public and nonprofit libraries, and certain other nonpublic/nonprofit organizations. See Appendix B, Section 25 Participation in Centralized Contracts. For Purchase Orders issued by the Port Authority of New York and New Jersey (or any other authorized entity that may have delivery locations adjacent to New York State), the terms of the Price clause shall be modified to include delivery to locations adjacent to New York State.

Upon request, all eligible non-State agencies must furnish Contractors with the proper tax exemption certificates and documentation certifying eligibility to use State contracts. A list of categories of eligible entities is available on the OGS web site (https://online.ogs.ny.gov/purchase/snt/othersuse.asp). Questions regarding an organization's eligibility to purchase from New York State Contracts may also be directed to NYS Procurement Services Customer Services at 518- 474-6717.

2.6. NEW ACCOUNTS

Contractor may ask State Agencies and other Authorized Users to provide information in order to facilitate the opening of a customer account, including documentation of eligibility to use New York State Contracts, agency code, name, address, and contact person. State Agencies shall not be required to provide credit references.

2.7. EXTENSION OF USE

This Contract may be extended to additional States or governmental jurisdictions upon mutual Written agreement between New York State and the Contractor. Political subdivisions and other authorized entities within each participating state or governmental jurisdiction may also participate in any resultant Contract if such state normally allows participation by such entities. New York State reserves the right to negotiate additional discounts based on any increased volume generated by such extensions.

2.8. NEW YORK STATE VENDOR RESPONSIBILITY

The Contractor shall at all times during the Contract term remain responsible. The Contractor agrees, if requested by the Commissioner of OGS, 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 Commissioner of OGS, in his or her sole discretion, reserves the right to suspend any or all activities under this Contract, at any time, when he or she discovers information that calls into question the responsibility of the Contractor. In the event of such suspension, the Contractor will be given written notice outlining the particulars of such 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 Commissioner of OGS issues a written notice authorizing a resumption of performance under the Contract.

The Contractor agrees that if it is found by the State that Contractor’s responses to the Questionnaire were intentionally false or intentionally incomplete, on such finding, the Commissioner may terminate the Contract.

Upon written notice to the Contractor, and a reasonable opportunity to be heard with appropriate OGS officials or staff, the Contract may be terminated by the Commissioner of OGS at the Contractor’s expense where the Contractor is determined by the Commissioner of OGS to be non-responsible. In such event, the Commissioner of OGS may complete

Contract # PCXXXXX, Contractor Name Page 10 the contractual requirements in any manner he or she may deem advisable and pursue available legal or equitable remedies for breach.

In no case shall such termination of the Contract by the State be deemed a breach thereof, nor shall the State be liable for any damages for lost profits or otherwise, which may be sustained by the Contractor as a result of such termination.

2.9. CONTRACTOR REQUIREMENTS AND PROCEDURES FOR BUSINESS PARTICIPATION OPPORTUNITIES

FOR NYS CERTIFIED MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES AND EQUAL

EMPLOYMENT OPPORTUNITIES FOR MINORITY GROUP MEMBERS AND WOMEN

I. New York State Law

Pursuant to New York State Executive Law Article 15-A and Parts 140-145 of Title 5 of the New York Codes, Rules and Regulations (“NYCRR”), the New York State Office of General Services (“OGS”) is required to promote opportunities for the maximum feasible participation of New York State-certified Minority- and Women-owned Business Enterprises (“MWBEs”) and the employment of minority group members and women in the performance of OGS contracts.

II. General Provisions

A. OGS is required to implement the provisions of New York State Executive Law Article 15-A and 5 NYCRR

Parts 140-145 (“MWBE 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.

B. The Contractor agrees, in addition to any other nondiscrimination provision of the Contract and at no additional cost to OGS, to fully comply and cooperate with OGS in the implementation of New York State Executive Law Article 15-A and the regulations promulgated thereunder. These requirements include equal employment opportunities for minority group members and women (“EEO”) and contracting opportunities for MWBEs. Contractor’s demonstration of “good faith efforts” pursuant to 5 NYCRR Section 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.

C. Failure to comply with all of the requirements herein may result in a finding of non-responsiveness, a finding of non-responsibility, breach of contract, withholding of funds, liquidated damages pursuant to clause IX of this section, and/or enforcement proceedings as allowed by the Contract and applicable law.

III. Equal Employment Opportunity (EEO)

A. The provisions of Article 15-A of the Executive Law and the rules and regulations promulgated thereunder pertaining to equal employment opportunities for minority group members and women shall apply to all Contractors, and any subcontractors, awarded a subcontract over $25,000, for labor, services, including legal, financial and other professional services, travel, supplies, equipment, materials, or any combination of the foregoing, to be performed for, or rendered or furnished to, the contracting State agency (the “Work”) except where the Work is for the beneficial use of the Contractor.

1. Contractor and subcontractors 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.

This requirement does not apply to: (i) the performance of work or the provision of services or any other activity that is unrelated, separate or distinct from the Contract; or (ii) employment outside New York State.

Contract # PCXXXXX, Contractor Name Page 11

2. By entering into this Contract, Contractor certifies that the text set forth in clause 12 of Appendix A, attached hereto and made a part hereof, is Contractor’s equal employment opportunity policy. In addition, Contractor agrees to comply with the Non-Discrimination Requirements set forth in clause 5 of Appendix A.

B. Form EEO 100 - Staffing Plan. Plan

To ensure compliance with this section, the Contractor agrees to submit or has submitted with the Bid a staffing plan on Form EEO 100 to OGS to document the composition of the proposed workforce to be utilized in the performance of the Contract by the specified categories listed, including ethnic background, gender, and federal occupational categories.

C. Form EEO 101 - Workforce Utilization Reporting Form (Commodities and Services) (“Form EEO-101-

Commodities and Services”)

1. The Contractor shall submit, and shall require each of its subcontractors to submit, a Form EEO-101-

Commodities and Services to OGS to report the actual workforce utilized in the performance of the Contract by the specified categories listed including ethnic background, gender, and Federal occupational categories. The Form EEO-101-Commodities and Services must be submitted electronically to OGS at EEO_CentCon@ogs.ny.gov on a quarterly basis during the term of the Contract by the 10th day of April, July, October, and January.

2. Separate forms shall be completed by Contractor and any subcontractor.

3. In limited instances, the Contractor or subcontractor may not be able to separate out the workforce utilized in the performance of the Contract from its total workforce. When a separation can be made, the Contractor or subcontractor shall submit the Form EEO-101-Commodities and Services and indicate that the information provided relates to the actual workforce utilized on the Contract. When the workforce to be utilized on the Contract cannot be separated out from the Contractor's or subcontractor's total workforce, the Contractor or subcontractor shall submit the Form EEO-101- Commodities and Services and indicate that the information provided is the Contractor's or subcontractor’s total workforce during the subject time frame, not limited to work specifically performed under the Contract.

D. Contractor shall comply with the provisions of the Human Rights Law, all other State and federal statutory and constitutional non-discrimination provisions. 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 follow the requirements of the Human Rights Law with regard to non-discrimination on the basis of prior criminal conviction and prior arrest.

IV. Contract Goals

A. OGS hereby establishes an overall goal of 4% for MWBE participation, 2% for Minority-Owned Business

Enterprises (“MBE”) participation and 2% for Women-Owned Business Enterprises (“WBE”) participation (based on the current availability of qualified MBEs and WBEs). The total Contract goal can be obtained by utilizing any combination of MBE and /or WBE participation for subcontracting and supplies acquired under the Contract.

B. For purposes of providing meaningful participation by MWBEs on the Contract and achieving the Contract goals established in clause IV-A hereof, Contractor should reference the directory of New York State Certified MWBEs found at the following internet address:

https://ny.newnycontracts.com/FrontEnd/VendorSearchPublic.asp?TN=ny&XID=2528. The MWBE Regulations are located at 5 NYCRR Section 140 – 145. Questions regarding compliance with MWBE participation goals should be directed to the Designated Contacts within the OGS Office of Minority- and Women Owned Businesses Enterprises. Additionally, following Contract execution, Contractor is mailto:EEO_CentCon@ogs.ny.gov https://ny.newnycontracts.com/FrontEnd/VendorSearchPublic.asp?TN=ny&XID=2528

Contract # PCXXXXX, Contractor Name Page 12 encouraged to contact the Division of Minority and Women’s Business Development ((518) 292-5250;

(212) 803-2414; or (716) 846-8200) to discuss additional methods of maximizing participation by MWBEs on the Contract.

C. Contractor must document “good faith efforts” to provide meaningful participation by MWBEs as subcontractors or suppliers in the performance of the Contract (see clause VII below).

V. MWBE Utilization Plan

A. In accordance with 5 NYCRR Section 142.4, Bidders are required to submit a completed Utilization Plan on Form MWBE 100 with their bid.

B. The Utilization Plan shall list the MWBEs the Bidder intends to use to perform the Contract, a description of the Contract scope of work the Bidder intends the MWBE to perform to meet the goals on the Contract, the estimated or, if known, actual dollar amounts to be paid to an MWBE. By signing the Utilization Plan, the Bidder acknowledges that making false representations or including information evidencing a lack of good faith as part of, or in conjunction with, the submission of a Utilization Plan is prohibited by law and may result in penalties including, but not limited to, termination of a contract for cause, loss of eligibility to submit future bids, and/or withholding of payments. Any modifications or changes to the agreed participation by New York State Certified MWBEs after the Contract award and during the term of the Contract must be reported on a revised MWBE Utilization Plan and submitted to OGS.

C. By entering into the Contract, Bidder/Contractor understands that only sums paid to MWBEs for the performance of a commercially useful function, as that term is defined in 5 NYCRR Section 140.1, may be applied towards the achievement of the applicable MWBE participation goal. When an MWBE is serving as a broker on the Contract, only 25 percent of all sums paid to a broker shall be deemed to represent the commercially useful function performed by the MWBE

D. OGS will review the submitted MWBE Utilization Plan and advise the Bidder of OGS acceptance or issue a notice of deficiency within 30 days of receipt.

E. If a notice of deficiency is issued; Bidder agrees that it shall respond to the notice of deficiency, within seven (7) business days of receipt, by submitting to OGS a Written remedy in response to the notice of deficiency. If the Written remedy that is submitted is not timely or is found by OGS to be inadequate, OGS shall notify the Bidder and direct the Bidder to submit, within five (5) business days of notification by OGS, a request for a partial or total waiver of MWBE participation goals on Form BDC 333. Failure to file the waiver form in a timely manner may be grounds for disqualification of the bid or proposal.

F. OGS may disqualify a Bidder’s bid/proposal as being non-responsive under the following circumstances:

(a) If a Bidder fails to submit an MWBE Utilization Plan;

(b) If a Bidder fails to submit a Written remedy to a notice of deficiency;

(c) If a Bidder fails to submit a request for waiver; or

(d) If OGS determines that the Bidder has failed to document good faith efforts.

G. If awarded a Contract, Contractor certifies that it will follow the submitted MWBE Utilization Plan for the performance of MWBEs on the Contract pursuant to the prescribed MWBE goals set forth in clause IV-A of this Section.

H. Bidder/Contractor further agrees that a failure to submit and/or use such completed MWBE Utilization

Plan shall constitute a material breach of the terms of the Contract. Upon the occurrence of such a material breach, OGS shall be entitled to any remedy provided herein, including but not limited to, a finding of Contractor non-responsiveness.

VI. Request for Waiver

Contract # PCXXXXX, Contractor Name Page 13

A. Prior to submission of a request for a partial or total waiver, Bidder shall contact the Designated Contacts listed on page 1 of this document for guidance.

B. In accordance with 5 NYCRR Section 142.7, a Bidder/Contractor who is able to document good faith efforts to meet the goal requirements, as set forth in clause VII below, may submit a request for a partial or total waiver on Form BDC 333, accompanied by supporting documentation. A Bidder may submit the request for waiver at the same time it submits its MWBE Utilization Plan. If a request for waiver is submitted with the MWBE Utilization Plan and is not accepted by OGS at that time, the provisions of clauses V(C), (D) & (E) will apply. If the documentation included with the Bidder’s/Contractor’s waiver request is complete, OGS shall evaluate the request and issue a Written notice of acceptance or denial within twenty (20) business days of receipt.

C. Contractor shall attempt to utilize, in good faith, any MBE or WBE identified within its MWBE Utilization

Plan, during the performance of the Contract. Requests for a partial or total waiver of established goal requirements made subsequent to Contract award may be made at any time during the term of the Contract to OGS, but must be made no later than prior to the submission of a request for final payment on the Contract.

D. If OGS, upon review of the MWBE Utilization Plan and Monthly MWBE Contractor Compliance Reports determines that Contractor is failing or refusing to comply with the contract goals and no waiver has been issued in regard to such non-compliance, OGS may issue a notice of deficiency to the Contractor. The Contractor must respond to the notice of deficiency within seven (7) business days of receipt. Such response may include a request for partial or total waiver of MWBE contract goals.

VII. Required Good Faith Efforts

In accordance with 5 NYCRR Section 142.8, Contractors must document their good faith efforts toward utilizing MWBEs on the Contract. Evidence of required good faith efforts shall include, but not be limited to, the following:

1. A list of the general circulation, trade and MWBE-oriented publications and dates of publications in which the Contractor solicited the participation of certified MWBEs as subcontractors/suppliers, copies of such solicitations and any responses thereto.

2. A list of the certified MWBEs appearing in the Empire State Development (“ESD”) MWBE directory that were solicited for this Contract. Provide proof of dates or copies of the solicitations and copies of the responses made by the certified MWBEs. Describe specific reasons that responding certified MWBEs were not selected.

3. Descriptions of the Contract documents/plans/specifications made available to certified MWBEs by the

Contractor when soliciting their participation and steps taken to structure the scope of work for the purpose of subcontracting with, or obtaining supplies from, certified MWBEs.

4. A description of the negotiations between the Contractor and certified MWBEs for the purposes of complying with the MWBE goals of this Contract.

5. Dates of any pre-bid, pre-award or other meetings attended by Contractor, if any, scheduled by OGS with certified MWBEs whom OGS determined were capable of fulfilling the MWBE goals set in the Contract.

6. Other information deemed relevant to the request.

VIII. Monthly MWBE Contractor Compliance Report

A. In accordance with 5 NYCRR Section 142.10, Contractor is required to report Monthly MWBE Contractor

Compliance to OGS during the term of the Contract for the preceding month’s activity, documenting progress made towards achievement of the Contract MWBE goals. OGS requests that all Contractors use

Contract # PCXXXXX, Contractor Name Page 14 the New York State Contract System (“NYSCS”) to report subcontractor and supplier payments made by Contractor to MWBEs performing work under the Contract. The NYSCS may be accessed at https://ny.newnycontracts.com/. This is a New York State-based system that all State agencies and authorities will be implementing to ensure uniform contract compliance reporting throughout New York State.

B. When a Contractor receives a payment from a State agency, it is the Contractor’s responsibility to pay its subcontractors and suppliers in a timely manner. On or after the first day of each month, the Contractor will receive an email or fax notification (“audit notice”) indicating that a representative of its company needs to log-in to the NYSCS to report the company’s MWBE subcontractor and supplier payments for the preceding month. The Contractor must also report when no payments have been made to a subcontractor or supplier in a particular month with entry of a zero-dollar value in the NYSCS. Once subcontractor and supplier payments have been entered into the NYSCS, the subcontractor(s) and supplier(s) will receive an email or fax notification advising them to log into the NYSCS to confirm that they actually received the reported payments from the Contractor. It is the Contractor’s responsibility to educate its MWBE subcontractors and suppliers about the NYSCS and the need to confirm payments made to them in the NYSCS.

C. To assist in the use of the NYSCS, OGS recommends that all Contractors and MWBE subcontractors and suppliers sign up for the following two webinar trainings offered through the NYSCS: “Introduction to the System - Vendor training” and “Contract Compliance Reporting - Vendor Training” to become familiar with the NYSCS. To view the training schedule and to register visit:

https://ny.newnycontracts.com/events.asp.

D. As soon as possible after the Contract is approved, Contractor should visit https://ny.newnycontracts.com and click on “Account Lookup” to identify the Contractor’s account by company name. Contact information should be reviewed and updated if necessary by choosing “Change Info.” It is important that the staff member who is responsible for reporting payment information for the Contractor be listed as a user in the NYSCS. Users who are not already listed may be added through “Request New User.”

When identifying the person responsible, please add “- MWBE Contact” after his or her last name (i.e., John Doe – MWBE Contact) to ensure that the correct person receives audit notices from the NYSCS.

NYSCS Technical Support should be contacted for any technical support questions by clicking on the links for “Contact Us & Support” then “Technical Support” on the NYSCS website.

E. If Contractor is unable to report MWBE Contractor Compliance via the NYSCS, Contractor must submit a

Monthly MWBE Contractor Compliance Report on Form MWBE 102 to OGS, by the 10th day of each month during the term of the Contract, for the preceding month’s activity to: OGS MWBE Office, 29th floor Corning Tower, Empire State Plaza, Albany, NY 12242. Phone: 518-486-9284; Fax: 518-486-9285.

F. It is the Contractor’s responsibility to report subcontractor and supplier payments. Failure to respond to payment audits in a timely fashion through the NYSCS, or by paper to OGS, may jeopardize future payments pursuant to the MWBE liquidated damages clause in clause IX below.

IX. Breach of Contract and Liquidated Damages

A. Where OGS determines that the Contractor is not in compliance with the requirements of this Contract, and the Contractor refuses to comply with such requirements, or if it is found to have willfully and intentionally failed to comply with the MWBE participation goals set forth in the Contract, the Contractor shall be obligated to pay liquidated damages to OGS.

B. Such liquidated damages shall be calculated as an amount equaling the difference between:

1. All sums identified for payment to MWBEs had the Contractor achieved the contractual MWBE goals;

and

2. All sums actually paid to MWBEs for work performed or materials supplied under the Contract.

https://ny.newnycontracts.com/ https://ny.newnycontracts.com/events.asp https://ny.newnycontracts.com/

Contract # PCXXXXX, Contractor Name Page 15

C. If OGS determines that Contractor is liable for liquidated damages and such identified sums have not been withheld by OGS, Contractor shall pay such liquidated damages to OGS within sixty (60) days after they are assessed. Provided, however, that if the Contractor has filed a complaint with the Director of the Division of Minority and Women’s Business Development pursuant to 5 NYCRR Section 142.12, liquidated damages shall be payable only in the event of a determination adverse to the Contractor following the complaint process.

X. Fraud

Any suspicion of fraud, waste, or abuse involving the contracting or certification of MWBEs shall be immediately reported to ESD’s Division of Minority and Women’s Business Development at (855) 373-4692.

ALL FORMS ARE AVAILABLE AT: https://ogs.ny.gov/MWBE

2.10. PARTICIPATION OPPORTUNITIES FOR NEW YORK STATE CERTIFIED SERVICE-DISABLED VETERAN

OWNED BUSINESSES

Article 17-B of the New York State Executive Law provides for more meaningful participation in public procurement by certified Service-Disabled Veteran-Owned Businesses (“SDVOBs”), thereby further integrating such businesses into New York State’s economy. OGS recognizes the need to promote the employment of service-disabled veterans and to ensure that certified service-disabled veteran-owned businesses have opportunities for maximum feasible participation in the performance of OGS contracts.

In recognition of the service and sacrifices made by service-disabled veterans and in recognition of their economic activity in doing business in New York State, Bidders/Contractors are strongly encouraged and expected to consider SDVOBs in the fulfillment of the requirements of the Contract. Such participation may be as subcontractors or suppliers, as protégés, or in other partnering or supporting roles.

For purposes of this procurement, OGS conducted a comprehensive search and determined that the Contract does not offer sufficient opportunities to set specific goals for participation by SDVOBs as subcontractors, service providers, and suppliers to Contractor. Nevertheless, Bidder/Contractor is encouraged to make good faith efforts to promote and assist in the participation of SDVOBs on the Contract for the provision of services and materials. The directory of New York State Certified SDVOBs can be viewed at: https://ogs.ny.gov/Veterans/

Bidder/Contractor is encouraged to contact the Office of General Services’ Division of Service-Disabled Veteran’s Business Development at 518-474-2015 or VeteranDevelopment@ogs.ny.gov to discuss methods of maximizing participation by SDVOBs on the Contract.

ALL FORMS ARE AVAILABLE AT: https://ogs.ny.gov/Veterans/

2.11. CONTRACTOR INSURANCE REQUIREMENTS

The Contractor shall maintain in force at all times during the term of the Contract, policies of insurance pursuant to the requirements outlined in Attachment 2 – Insurance Requirements

2.12. NEW YORK STATE STATEWIDE FINANCIAL SYSTEM

New York State is currently operating on an Enterprise Resource Planning (ERP) system, Oracle PeopleSoft software, referred to as the Statewide Financial System (SFS). SFS is currently on PeopleSoft Financials version 9.2. SFS supports requisition-to-payment processing and financial management functions.

The State is also implementing an eProcurement application that supports the requisitioning process for State Agencies to procure Products in SFS. This application provides catalog capabilities. Contractors with Centralized Contracts have the ability to provide a “hosted” or “punch-out” catalog that integrates with SFS and is available to Authorized Users via a centralized eMarketplace website. Additional information may be found at: https://ogs.ny.gov/procurement/emarketplace.

https://ogs.ny.gov/MWBE https://ogs.ny.gov/Veterans/ mailto:VeteranDevelopment@ogs.ny.gov https://ogs.ny.gov/Veterans/ https://ogs.ny.gov/procurement/emarketplace

Contract # PCXXXXX, Contractor Name Page 16

There are no fees required for a Contractor’s participation in the catalog site development or management. Upon completion and activation of an on-line catalog, State Agencies will process their orders through the SFS functionality and other Authorized Users can access the catalog site to fulfill orders directly.

The State may be implementing additional PeopleSoft modules in the near future. Further information regarding business processes, interfaces, and file layouts currently in place may be found at: http://www.sfs.ny.gov and http://www.osc.state.ny.us/agencies/guide/MyWebHelp/.

2.13. HEAVY EQUIPMENT RENTAL PRICE

Pricing for Heavy Equipment Rental under this Contract shall be subject to the following terms and conditions. Heavy Equipment Rental Prices shall not exceed the prices charged to other government or private entities in the Contractor’s normal course of business.

A. Daily Rental: The Daily Rental Price shall be for a Rental Period of twenty-four (24) consecutive hours or less, computed from the hour of commencement of the Rental Period up to but not including the same hour in the next day and shall apply when the number of hours the Heavy Equipment is operated in any twenty-four (24) hour period does not exceed eight (8) hours of use.

A “double shift,” if offered, shall mean sixteen (16) hours of use per day, and the Rental Price shall be one (1) and a half times the Daily Rental Price.

A “triple shift,” if offered, shall mean twenty-four (24) hours of use per day, and the Rental Price shall be two (2) times the Daily Rental Price.

B. Weekly Rental: The Weekly Rental Price shall be for a Rental Period of seven (7) consecutive calendar days, computed from the date of commencement of the Rental Period up to but not including the same date in the following week and shall apply when the number of hours the Heavy Equipment is operated in any seven (7) day period does not exceed forty (40) hours of use.

C. Monthly Rental: The Monthly Rental Price shall be for a Rental Period of twenty-eight (28) consecutive calendar days, computed from the date of commencement of the Rental Period, and shall apply when the number of hours the Heavy Equipment is operated in any twenty-eight (28) day period does not exceed 176 hours of use.

D. Overtime and Extended Rental Period Charges: Where Heavy Equipment is operated in excess of the above stated hourly maximums, as determined by the equipment hour/usage meter, such excess shall be charged at the following rates. If the Heavy Equipment does not have an hour/usage meter, then the hours used shall be determined by the Authorized User.

1. 1/16th of the Daily Rental Price for each hour used in excess of eight (8) hours in any one (1) day;

2. 1/80th of the Weekly Rental Price for each hour used in excess of forty (40) in any one weekly period; or

3. 1/352nd of the Monthly Rental Price for each hour used in excess of 176 in any 28 consecutive day period.

After the Rental Period has expired, the Rental Price for a fraction of any Authorized User requested extended Rental Period shall be at the fractions listed above.

E. Consumables: At the beginning of…