5415523331AppendixB.docx

Appendix B ENGAGEMENT AGREEMENT TEMPLATE

This Engagement Agreement will be governed by and construed and enforced in accordance with the terms and conditions of Appendix A (Standard Clauses for New York State Contracts), the Contract, and this Engagement Agreement.

1. Statement of Work and Guidelines for Billing Fees and Expenses [include description of services to be performed, scope of work, hourly rate, engagement deliverables, key personnel, etc. [Note: the hourly rate may not exceed the blended hourly rate set forth in the Contract.]

The hourly rates set forth above shall be binding for the term of this Engagement Agreement. All billings must be calculated in units of one-tenth of an hour. Law Firm agrees that hourly rates shall include all fixed overhead costs including but not limited to expenses for word processing, secretarial or clerical work, subscriptions for research materials and services, and reference librarians. Law Firm may bill for routine out-of-pocket expenses incurred on the Authorized User’s behalf, such as filing 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 Law Firm and the Authorized User. Billings for actual expenses incurred by Law Firm must be substantiated and documented.

2. Term [include engagement term, start date, end date, etc.] The engagement term may not exceed five years (not including any extensions of Contract Pxxxxx). In addition, the engagement term may not extend more than three years beyond the term of the Contract.

3. Authorized User Representative

The Authorized User representative is , who shall have responsibility for overseeing, supervising, and accepting performance by Law Firm and for taking any action or approval required by Authorized User. The Authorized User may upon written notice to Law Firm designate additional or different representatives.

4. Attorney General and Comptroller Approval

[Authorized Users that are State agencies must include this provision]

This Engagement Agreement and any subsequent amendments thereto shall not be deemed executed, valid, or binding unless and until approved in writing by the Office of the Attorney General and the Office of the State Comptroller.

5. Conflicts of Interest

A. Law Firm confirms that it has performed a conflicts check and has determined that it may, under applicable ethics rules, perform the services set forth herein. Law Firm further confirms that it is not involved in any litigation or administrative proceeding 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.

B. Law Firm may represent other current or future clients on matters other than those for which it is engaged under this Engagement Agreement, whether or not such representation is adverse to Authorized User, including in litigation, legal, or other proceedings or matters, so long as the matter is not substantially related to Law Firm’s work under this Engagement Agreement (“Permitted Adverse Representation”). Moreover, without Authorized User’s prior written consent, Law Firm cannot and will not represent another client adverse to Authorized User if Law Firm has obtained confidential information of a nonpublic nature that, if known to the other client, could be used to Authorized User’s disadvantage.

C. Notwithstanding the foregoing, any Permitted Adverse Representation shall be conducted only in accordance with Rules 1.7, 1.8, 1.9 and 1.13 and any other applicable provisions of the New York Rules of Professional Conduct as codified at 22 NYCRR Part 1200 et seq., and with appropriate notice to Authorized User as required thereunder. To the extent required, requests for waiver of conflicts not already waived herein shall be in writing to Authorized User.

6. Opinions and OAG Consultation

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

Law Firm will represent the State of New York in judicial litigation related to the services to be provided under this Engagement Agreement only when such services are specifically requested by the Authorized User’s counsel and approved by the Attorney General. Such approval must be requested separately for each matter to be litigated and must be received prior to the commencement of services therefor.

Law Firm is required to consult with the Attorney General’s Bureau of Internet & Technology on the appropriate interpretation and application of the New York SHIELD Act and any New York data security, privacy, or consumer protection law.

7. Information Security

Law Firm agrees to comply fully with all security procedures of Authorized User in the performance of services hereunder including without limitation all physical, facility, documentary, and cyber security rules, procedures, protocols, and policies provided that such rules, procedures, protocols, and policies have been provided by Authorized User to Law Firm.

8. Termination

Authorized User reserves the right to terminate the services of Law Firm, in whole or in part, upon fifteen (15) days written notice for any reason, or immediately for cause. Upon notice of termination, Law Firm shall stop work immediately and complete only those specific assignments, if any, subsequently approved by the Authorized User. Upon receipt of notice of termination, Law Firm shall cancel, prior to the effective date of any prospective termination, as many outstanding obligations as possible, and agrees not to incur any new obligations after receipt of the notice without approval by the Authorized User. Law Firm shall be entitled to compensation for services performed through the date of termination, and for any subsequent services that are accepted by the Authorized User or rendered in connection with any successor consultants and contractors, including transfer of records, briefing and any other services deemed necessary or desirable by the Authorized User. Law Firm agrees to cooperate to the fullest respect with any successor consultants and contractors.

9. Dispute Resolution

The parties shall use their best efforts to amicably resolve any disputes arising under this Engagement Agreement, including disputes as to Law Firm’s fees. If the parties are unable to amicably resolve any dispute within 30 days, then either party may seek legal or equitable redress.

10. Additional Terms and Conditions

[in accordance with Contract Section IX. Modification of Contract Terms/Additional or Alternative Terms and Conditions in an Engagement Agreement, Authorized Users may include any additional Authorized User-specific or engagement-specific terms and conditions or any additional insurance requirements beyond those set forth in the Contract]

No additional or alternative term or condition shall be valid or binding on an Authorized User to the extent that such additional or alternative term or condition is less favorable to the Authorized User than, or conflicts with, any of the following provisions of the Contract: All provisions of Appendix A (Standard Clauses for New York State Contracts); the not-to-exceed pricing set forth in Section III. Compensation, Section VIII. Insurance and Indemnification, Section X. Termination and Suspension, Section XIII. Condition Precedent, and Section XV. Opinions and OAG Consultation.

11. Subcontracting

[identify any subcontractors, services to be provided by subcontractors, and value of subcontracted services and include the language below if subcontractors will be used]

Law firm agrees that the total value of all services to be provided by subcontractors under this Engagement Agreement shall not exceed 20% of the total value of this Engagement Agreement.

In addition, Law Firm agrees that, at any time during the term of this Engagement Agreement, where Law Firm proposes to use a subcontractor to perform any of the services under the Engagement Agreement, and where the value of the proposed subcontract is equal or greater than $100,000, (1) the Authorized User reserves the right to approve Law Firm’s use of such subcontractor for purposes of this Engagement Agreement, and (2) the Authorized User may require such subcontractor to submit its own Vendor Responsibility Questionnaire, in which case Law Firm’s use of such subcontractor under this Engagement Agreement will be contingent upon the Authorized User’s review and determination that such subcontractor is responsible.

12. MWBE and SDVOB Goals

A. Law Firm shall comply with the requirements for participation by Minority- and Women- Owned Business Enterprises (“MWBEs”) and Service-Disabled Veteran-Owned Businesses (“SDVOBs”) set forth in Attachment 1, which is attached hereto and made a part hereof.

B. The Authorized User hereby establishes an overall goal of % for MWBE participation, % for Minority-Owned Business Enterprises (“MBE”) participation and % for Women-Owned Business Enterprises (“WBE”) participation (based on the current availability of 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.

C. The Authorized User hereby establishes an overall goal of % for SDVOB participation, based on the current availability of qualified SDVOBs.

13. Compliance with Procurement Laws

[Authorized Users that are State agencies must include this provision]

State Finance Law § 163(4)(g) & § 163(14)(a–d) impose certain reporting requirements on contractors providing consulting services to the State. In furtherance of these reporting requirements, Law Firm shall complete and submit an initial planned employment data report and an annual employment report (Forms A and B respectively) as required by law. Complete instructions and forms may also be accessed at: https://www.osc.ny.gov/state- agencies/gfo/chapter-xi/xi18c-consultant-disclosure.

14. Notices

Any notice or communication by any party to the other required or permitted hereunder shall be in writing and shall be deemed duly served as of (a) the date it is delivered by hand or by email (with appropriate acknowledgement of receipt), (b) three business days after having been mailed by certified mail, postage prepaid, return receipt requested, or (c) the next business day after having been sent for delivery on the next business day, shipping prepaid, by a nationally recognized overnight courier, in each case to the receiving party at the address set forth below,or at such other address as a party may designate by written notice to the other party sent in the manner set forth herein.

If to the Authorized User:

[Name] [Title] Tel No.:

Email:

If to Law Firm:

[Name] [Title] Tel. No.:

Email:

15. Entire Agreement and Interpretation

A. Appendix A, Standard Clauses for New York State Contracts, attached hereto, is hereby expressly made a part of this Engagement Agreement as fully as if set forth at length herein.

B. This Engagement Agreement, including Appendix A and Attachment 1 (MWBE and SDVOB Requirements), together with the Contract and any referenced appendices, exhibits and attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings of the parties, whether written or oral, with respect to the subject matter hereof. No statement, promise, condition, understanding, inducement, or representation, oral or written, expressor implied, that is not contained herein shall be binding or valid. This Engagement Agreement may not be changed, modified, or altered in any manner except by an instrument in writing executed by the Authorized User and Firm and, in the case of State agency Authorized Users, approved by the Office of the Attorney General and the Office of the State Comptroller.

C. The captions contained in this Engagement Agreement are intended for convenience and reference purposes only and shall in no way be deemed to define or limit any provision thereof.

D. In the event of any conflict, discrepancy, disagreement or ambiguity between or among the documents referenced herein and this Engagement Agreement, the documents shall be given preference in the following order to interpret and to resolve any such conflict, discrepancy, disagreement or ambiguity:

(i) Appendix A (Standard Clauses for New York State Contracts)

(ii) The Centralized Contract (Contract # )

(iii) This Engagement Agreement, including Attachment 1 (MWBE and SDVOB Requirements)

16. Severability

In the event that any one or more of the provisions of this Engagement Agreement shall for any reason be declared unenforceable under the laws or regulations in force, such provision will have no effect on the validity of the remainder of this Engagement Agreement, which shall then be construed as if such unenforceable provision had never been written or was never contained in this Engagement Agreement.

[signatures appear on next page]

IN WITNESS WHEREOF, the parties hereto have executed this Engagement Agreement as of the day and year first written above, and the persons signing this Engagement Agreement represent and warrant that they are duly authorized to sign on behalf of the respective parties.

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

By: Name:

Title:

Federal I.D. No.:

NYS Vendor I.D. No.: Date:

By: Name:

Title: Date:

Appendix B - ENGAGEMENT AGREEMENT TEMPLATE

54155-23331 Appendix B-Engagement Agreement Rev. 10/2/2024 Page 1

INDIVIDUAL, CORPORATION, PARTNERSHIP, OR LLC ACKNOWLEDGMENT

STATE OF

: SS.:

COUNTY OF

On the day of in the year 20 , before me personally appeared

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

Notary Public

Registration No. State of:

Attachment 1 MWBE and SDVOB Requirements

1. MWBE GOALS

[The following language applies if the Engagement Agreement includes MWBE goals.]

CONTRACTOR REQUIREMENTS AND PROCEDURES FOR PARTICIPATION BY NEW YORK STATE 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 Authorized User 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 Authorized User contracts.

II. General Provisions A. The Authorized User 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 the Authorized User, to fully comply and cooperate with the Authorized User 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 §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.

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 [This Paragraph B applies only if the Engagement Agreement has a value in excess of $250,000.00.] 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 the Authorized User 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. NYS Contract System Workforce Utilization Reporting Module (Commodities & Services) The Contractor shall complete, and shall require each of its subcontractors to complete, a Workforce Audit on a quarterly basis throughout the term of this Contract, by the 10th day of April, July, October, and January to report the actual workforce utilized during the previous quarter in the performance of the Contract by the specified categories listed including ethnic background, gender, and Federal occupational categories. Contractor shall coordinate with its subcontractors to ensure that all workers associated with this Contract are properly counted and reported. Unless otherwise required by the Authorized User, to prepare the report, Contractor and its subcontractors shall use the NYS Contract System Workforce Audit Module found at the following website: https://ny.newnycontracts.com

The Workforce Audits must be completed electronically in the NYS Contract System Workforce Audit Module, unless otherwise required by the Authorized User. Separate audits shall be completed by Contractor and all subcontractors, and the Contractor is responsible for ensuring timely submission of the Workforce Audit by their subcontractors. 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 complete the Workforce Audit 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 complete the Workforce Audit 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. The Authorized User hereby establishes an overall goal of % for MWBE participation,% for Minority-Owned Business Enterprises (“MBE”) participation and% 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/. The MWBE Regulations are located at 5 NYCRR § 140 – 145. Questions regarding compliance with MWBE participation goals should be directed to the Authorized User’s Designated Contacts. Additionally, following Contract execution, Contractor is 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 § 142.4, Bidders are required to submit a completed Utilization Plan 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 the Authorized User.

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 § 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. The Authorized User will review the submitted MWBE Utilization Plan and advise the Bidder of the Authorized User’s 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 the Authorized User a written remedy in response to the notice of deficiency. If the written remedy that is submitted is not timely or is found by the Authorized User to be inadequate, the Authorized User shall notify the Bidder and direct the Bidder to submit, within five (5) business days of notification by the Authorized User, a request for a partial or total waiver of MWBE participation goals on Form BDC 333.1. Failure to file the waiver form in a timely manner may be grounds for disqualification of the bid or proposal.

F. The Authorized User 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 the Authorized User 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, the Authorized User shall be entitled to any remedy provided herein, including but not limited to, a finding of Contractor non-responsiveness.

VI. Request for Waiver A. Prior to submission of a request for a partial or total waiver, Bidder shall contact the Designated Contacts of the Authorized User for guidance.

B. In accordance with 5 NYCRR § 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 333.1, 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 the Authorized User 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, the Authorized User 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 the Authorized User, but must be made no later than prior to the submission of a request for final payment on the Contract.

D. If the Authorized User, 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 regards to such non-compliance, the Authorized User 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 § 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 the Authorized User with certified MWBEs whom the Authorized User 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 § 142.10, Contractor is required to report Monthly MWBE Contractor Compliance to the Authorized User during the term of the Contract for the preceding month’s activity, documenting progress made towards achievement of the Contract MWBE goals. Unless otherwise required by the Authorized User, Contractor should use 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 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, the Authorized User 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/FrontEnd/TrainingList.asp D. As soon as possible after the Contract is approved, Contractor should visit https://ny.newnycontracts.com and click on “Vendor 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 the Authorized User, by the 10th day of each month during the term of the Contract, for the preceding month’s activity.

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 the Authorized User, may jeopardize future payments pursuant to the MWBE liquidated damages clause in clause IX below.

IX. Breach of Contract and Liquidated Damages A. Where the Authorized User determines that the Contractor is not in compliance with the MWBE requirements of this Section, 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 the Authorized User.

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.

C. If the Authorized User determines that Contractor is liable for liquidated damages and such identified sums have not been withheld by the Authorized User, Contractor shall pay such liquidated damages to the Authorized User 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 § 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.

[The following language applies if there are no MWBE goals on the Engagement Agreement.]

CONTRACTOR REQUIREMENTS AND PROCEDURES FOR PARTICIPATION BY NEW YORK STATE 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 Authorized User 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 Authorized User contracts.

II. General Provisions A. The Authorized User 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 the Authorized User, to fully comply and cooperate with the Authorized User 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 § 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, suspension or termination of the Contract, and/or such other actions 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.

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 [This paragraph B applies only if the Engagement Agreement has a value in excess of $250,000.00.] 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 the Authorized User 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. NYS Contract System Workforce Utilization Reporting Module (Commodities & Services)

1. The Contractor shall complete and shall require each of its subcontractors to complete a Workforce Audit on a quarterly basis throughout the term of this Contract, by the 10th day of April, July, October, and January. 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. Contractor shall coordinate with its subcontractors to ensure that all workers associated with this Contract are properly counted and reported. To prepare the report, Contractor and its subcontractors shall use the NYS Contract System Workforce Audit Module found at the following website: https://ny.newnycontracts.com.

2. Separate audits shall be completed by Contractor and all subcontractors utilized on this contract and the Contractor is responsible for ensuring timely submission of the Workforce Audit by their subcontractors.

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 complete the Workforce Audit 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 complete the Workforce Audit 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 and 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. For purposes of this procurement, the Authorized User conducted a comprehensive search and determined that the Contract does not offer sufficient opportunities to set goals for participation by MWBEs as subcontractors, service providers, or suppliers to Contractor. Contractor is, however, encouraged to make every good faith effort to promote and assist the participation of MWBEs on this Contract for the provision of services and materials. The directory of New York State Certified MWBEs can be viewed at: https://ny.newnycontracts.com/. Additionally, following Contract execution, Contractor is encouraged to contact the Authorized User to discuss additional methods of maximizing participation by MWBEs on the Contract.

B. Good Faith Efforts Pursuant to 5 NYCRR § 142.8, evidence of 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 the Authorized User with certified MWBEs whom the Authorized User determined were capable of fulfilling the MWBE goals set in the Contract.

6. Other information deemed relevant to the request.

V. 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.

2. SDVOB GOALS

[The following language applies if the Engagement Agreement includes SDVOB goals.] 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 (“SDVOB”), thereby further integrating such businesses into New York State’s economy. The Authorized User 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 Authorized User 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 are 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.

I. Contract Goals

A. For purposes of providing meaningful participation by SDVOBs, the Bidder/Contractor should reference the directory of New York State Certified SDVOBs found at: https://ogs.ny.gov/veterans/. Questions regarding compliance with SDVOB participation goals should be directed to the Designated Contacts within the Authorized User. Additionally, following Contract execution, Contractor is encouraged to contact the Division of Service-Disabled Veteran’s Business Development at (518) 474-2015 or VeteransDevelopment@ogs.ny.gov to discuss additional methods of maximizing participation by SDVOBs on the Contract.

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

II. SDVOB Utilization Plan

A. In accordance with 9 NYCRR § 252.2(i), Bidders are required to submit a completed SDVOB Utilization Plan on Form SDVOB 100 with their bid.

B. The Utilization Plan shall list the SDVOBs that the Bidder intends to use to perform the Contract, a description of the work that the Bidder intends the SDVOB to perform to meet the goals on the Contract, the estimated dollar amounts to be paid to an SDVOB, or, if not known, an estimate of the percentage of Contract work the SDVOB will perform. By signing the Utilization Plan, the Bidder acknowledges that making false representations or providing information that shows 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 SDVOBs after the Contract award and during the term of the Contract must be reported on a revised SDVOB Utilization Plan and submitted to the Authorized User.

C The Authorized User will review the submitted SDVOB Utilization Plan and advise the Bidder/Contractor of the Authorized User’s acceptance or issue a notice of deficiency within 20 days of receipt.

D. If a notice of deficiency is issued, Bidder/Contractor agrees that it shall respond to the notice of deficiency, within seven business days of receipt, by submitting to the Authorized User a written remedy in response to the notice of deficiency.