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AGREEMENT FOR

HEAVY EQUIPMENT RENTAL (STATEWIDE)

BY AND BETWEEN

NEW YORK STATE

OFFICE OF GENERAL SERVICES

AND

CONTRACT NUMBER PS_________

Group 72007, Award 23397 – Heavy Equipment Rental (Statewide)

Contract PSXXXXX, Contractor Name Page 2

CONTENTS

1. INTRODUCTION

1.1 Overview and Scope

1.2 Estimated Quantities

1.3 NYS Comptroller Approval

1.4 Definitions

1.5 Appendices and Attachments

1.6 Conflict of Terms

1.7 Appendix B Modifications

2. SPECIFICATIONS

2.1 Heavy Equipment Requirements

2.2 Rental Service Requirements

3. PROCUREMENT INSTRUCTIONS FOR AUTHORIZED USERS

3.1 Procurement Instructions Overview

3.2 Rental Quote Process

3.3 Rental Quote Reserved Rights

3.4 Authorized User Responsibilities and Rights

4. TERMS AND CONDITIONS

4.1 Contract Term and Extensions

4.2 Short term Extension

4.3 Rental Price

4.4 Delivery Charge

4.5 Ceiling Price

4.6 Pricelist Updates

4.7 Pricelist Update Format

4.8 Contract Pricelist Updates Reserved Rights

4.9 Best Pricing Offer

4.10 Price Structure

4.11 Ordering

4.12 Minimum Order

4.13 Invoicing and Payment

4.14 Product Delivery

4.15 Default On Delivery

4.16 Liquidated Damages

4.17 Product Acceptance

4.18 Contract Administration

4.19 NYS Financial System (SFS)

4.20 Insurance

4.21 Report of Contract Usage

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4.22 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

4.23 Participation Opportunities For New York State Certified Service-Disabled Veteran Owned Businesses

4.24 Environmental Sustainability and NYS Executive Order Number 22

4.25 Consumer Products Containing Mercury

4.26 Diesel Emission Reduction Act

4.27 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or

Equipment

4.28 Overlapping Contract Products

4.29 NYS Vendor Responsibility

4.30 NYS Tax Law Section 5-a

4.31 “OGS or Less” Guidelines

4.32 Non-State Agencies Participation in Centralized Contracts

4.33 Extension of Use

4.34 New Accounts

4.35 Centralized Contract Modifications

4.36 Drug and Alcohol Use Prohibited

4.37 Traffic Infractions

4.38 Contract Documents; Electronic Format

4.39 Purchasing Card Orders

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 New York State Contracts (June 2023) Appendix B – General Specifications (April 2016) Appendix C – Federal Funding Agency Mandatory Terms and Conditions (October 2023)

ATTACHMENTS

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

Contract PSXXXXX, Contractor Name Page 4

STATE OF NEW YORK

OFFICE OF GENERAL SERVICES

AGREEMENT # PS Enter Agreement Number

CENTRALIZED CONTRACT FOR THE ACQUISITION OF

HEAVY EQUIPMENT RENTAL (STATEWIDE)

THIS AGREEMENT (hereinafter the “Contract” or the “Agreement”) is made as of the date last written below, 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 and services 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 (Statewide) as further described herein; and

WHEREAS, OGS conducted a procurement to identify the bidder(s) which could provide Heavy Equipment Rental (Statewide), referred to as Solicitation 23397 (hereinafter the “Solicitation”), which was advertised on Click or tap to enter a date. 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, and who met the criteria for an award, in accordance with the method of award set forth in the Solicitation; 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 PSXXXXX, Contractor Name Page 5

1. INTRODUCTION

1.1 Overview and Scope

This Contract is issued by the New York State (“NYS”) Office of General Services (“OGS”), Procurement Services to provide Authorized Users, as set forth in Appendix B, Section 2, Definitions, with a means of acquiring Rental of Heavy Equipment.

The Contract is for the Contractor’s complete Product Line that meets the Contract definition of Heavy Equipment, and associated Ceiling Prices, as 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 3 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.

Contractor acknowledges the foregoing and agrees that actual good faith purchasing volumes during the term of the resulting Contracts could vary substantially from the estimates provided in Solicitation 23397.

1.3 NYS Comptroller Approval

In accordance with Section 112 of the State Finance Law, this Contract shall not be valid, effective or binding upon the State until such Contract has been approved by the Office of the New York State Comptroller (“OSC”).

Purchase orders or other procurement transactions issued under such Contract(s) may also be subject to OSC approval.

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1.4 Definitions

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 Contractor may charge an Authorized User for a service offered under the Contract.

“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.

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

“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).

“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

Contract PSXXXXX, Contractor Name Page 7 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.

“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; Dr. Martin Luther King, Jr. Day; Washington’s Birthday (observed); Memorial Day; Juneteenth;

Independence Day; Labor Day; Columbus Day; Veterans’ Day; Thanksgiving Day; and Christmas Day.

“NYS Vendor ID” is a unique ten-character identifier issued by the NYS Office of the State Comptroller (OSC) when the vendor is registered on the Vendor File System.

“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 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 Contractor’s place of business or other location designated by the 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.

Contract PSXXXXX, 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.

1.5 Appendices and Attachments

The following appendices and attachments, attached hereto, are hereby expressly made a part of this Contract, as fully as if set forth at length herein.

Appendix A – Standard Clauses for New York State Contracts (June 2023) Appendix B – General Specifications (April 2016) Appendix C – Federal Funding Agency Mandatory Terms and Conditions Attachment 1 – Pricing Attachment 2 – Insurance Requirements Attachment 3 – Report of Contract Usage Attachment 4 – Rental Quote Forms

1.6 Conflict of Terms

Conflicts among the documents shall be resolved in the following order of precedence:

A. Appendix A – Standard Clauses for New York State Contracts;

B. Appendix C – Federal Funding Agency Mandatory Terms and Conditions;

C. The Contract;

D. Appendix B – General Specifications; and E. All other appendices and attachments to the Contract.

1.7 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 4.14 Product Delivery of this Contract.

B. Appendix B, Section 34 Title and Risk of Loss for Products Other Than Technology Products, is deleted in its entirety and replaced by Section 4.17 Product Acceptance of this Contract.

2. SPECIFICATIONS

The following minimum specifications shall apply to the Contract. The Authorized Users shall provide supplemental specifications for each Rental in the Rental Quote Requests, and with the resultant Purchase Order, if applicable.

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2.1 Heavy Equipment Requirements

The following shall be considered minimum requirements for the Heavy Equipment offered for Rental.

A. Standards, Codes, Rules and Regulations: Heavy Equipment shall comply with all applicable governmental statutes, regulations, and directives including, but not limited to, those listed below. If applicable, the appropriate decals indicating compliance shall be affixed to the Heavy Equipment.

1. New York Codes, Rules and Regulations (NYCRR), New York State Vehicle and Traffic Law

(NYSVTL), and New York State Dept. of Motor Vehicles (NYSDMV).

2. Federal Motor Vehicle Safety Standards (FMVSS), Federal Motor Carrier Safety Administration

(FMCSA), National Highway Traffic and Safety (NHTSA), Environmental Protection Agency (EPA), and Occupational Safety & Health Administration (OSHA) requirements.

3. Federal Government and New York State regulations governing the control of air pollution from new motor vehicles and new motor vehicle engines in effect on the date of manufacture. See NYCRR (NY Codes Rules and Regulations), Title 6 Environmental Conservation, Part 218, Emissions Standards for Motor Vehicles and Motor Vehicle Engines.

B. Standard Equipment: Unless otherwise specified by the Authorized User, any parts, components, equipment, controls, materials, features, performances, capacities, ratings or designs which are standard and/or necessary to form an efficient and complete working unit shall be furnished. Any item not specified by the Authorized User but deemed necessary for the application of the Heavy Equipment shall be supplied and shall meet the industry standards.

C. Manuals: Heavy Equipment shall be furnished with standard manuals (e.g. operation, maintenance and parts manuals) as would normally accompany such Heavy Equipment. Manuals may be provided printed and bound, on CD, or at an online website.

D. Equipment Condition: Prior to the beginning of the Rental Period, Heavy Equipment shall, at a minimum, be provided to the Authorized User in the following condition as applicable to the Heavy Equipment type.

1. Shall be completely assembled, clean, lubricated, serviced, fully functional and capable of performing the task(s) it was designed to perform under the OEM’s guidelines. The Contractor shall be responsible for all costs and expenses necessary to provide Heavy Equipment that is in good working condition and repair. The Authorized User shall not be liable for damage caused by improper maintenance of the equipment by the Contractor;

2. All safety devices, including rear view camera and/or backup alarm, shall be in place and operational per the OEM’s design. Safety stickers shall be in place and legible;

3. Fuel tank shall be at full capacity;

4. All required documents shall be provided (e.g., vehicle registration, inspection and emissions stickers, certificate of insurance);

5. Shall meet the OEM’s minimum recommendations for Gross Vehicle Weight Rating (GVWR), Front

Gross Axle Weight Rating (FGAWR), Rear Gross Axle Weight Rating (RGAWR) and curb weight.

6. Shall have vandalism/theft protection covers or other security system in place.

E. Title and Registration: Title to the Heavy Equipment shall at all times remain with the Contractor and nothing contained in this Contract shall be deemed to have the effect of conferring upon the Authorized User any right or title whatsoever in or to the Heavy Equipment. Purchase of Heavy Equipment is not permitted under this Contract. If applicable, the Heavy Equipment shall be registered to the Contractor with license plate affixed and suitable for operation on the highway.

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2.2 Rental Service Requirements

The following shall be considered minimum service requirements for the Rental.

A. Rental Period: The minimum Rental Period that may be offered under the Contract is a Daily Rental Period. 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), is not permitted under this Contract. Saturday, Sunday and government holidays shall not be excluded from Rental Periods, and the Contractor shall offer Heavy Equipment for Rental on these days if such Rental is offered in the Contractor’s usual course of business.

B. Equipment Operators: The Heavy Equipment shall be furnished without operating personnel, and the operation of said Heavy Equipment shall be performed by Authorized User employees.

C. Equipment Condition Report: A signed, Written equipment condition report shall be provided to the

Authorized User for signature prior to the start of the Rental Period, and upon return of the Heavy Equipment to the Contractor. At a minimum, the report shall include a list, as applicable to the Heavy Equipment, of the following:

1. Pre-existing damage and non-functioning features;

2. Operational checks that have been performed;

3. Attachments provided with the Rental;

4. Verification that safety devices are in place and operational and safety stickers are in place and legible;

5. Operators and other manuals included;

6. Tire condition and pressure;

7. Fuel and fluid levels; and

8. Hour/usage meter and odometer readings.

The Contractor and the Authorized User shall review the equipment condition at the point of Delivery as well as at the point of return. If, in the sole opinion of the Authorized User, the Heavy Equipment as delivered does not meet the Contract terms or is in a state of disrepair, it shall be returned, and replacement equipment shall be delivered at the Contractor’s expense.

D. Standard Rental Agreement/Delivery Ticket: Authorized User personnel accepting the Heavy Equipment shall not be authorized to obligate or bind their entity to contractual terms and conditions; therefore, signature on a standard rental agreement/delivery ticket is merely an acknowledgement of receipt of the Heavy Equipment.

E. Training: Complete instructions and training for the Heavy Equipment, including operation, safety, maintenance and routine service, shall be given by the Contractor to the Authorized User prior to the start of the Rental Period.

F. Consumables: Authorized Consumables for use with the Heavy Equipment shall be as defined by the

Heavy Equipment OEM. The Authorized User is responsible for the cost of all Consumables used during the Rental Period (see Section 4.3 Rental Price, Paragraph E Consumables). With the exception of fuel, the Contractor shall provide the Authorized User with extra authorized Consumables at the beginning of the Rental Period, and a pricelist for use of the Consumables. Additional Consumables shall be available at the Contractor’s location for pickup by the Authorized User. Instructions (verbal and/or included in the Heavy Equipment operations and maintenance manual) shall be provided to the Authorized User detailing the proper procedures for use of Consumables. The Authorized User reserves the right to obtain Consumables from a third party.

Contract PSXXXXX, Contractor Name Page 11

Upon return of the Heavy Equipment, the fuel tank shall be refilled to capacity at the Authorized User’s expense. The cost of refueling to reach fuel tank capacity shall be included as a separate item on the Contractor's invoice if applicable. Such charge must not exceed the amount charged by the Contractor in its normal course of business.

G. Maintenance: The Rental Price includes all costs associated with preventative maintenance and normal wear and tear, as defined by the Heavy Equipment OEM. If necessary, in order to comply with the OEM’s maintenance schedule, maintenance may be performed during the Rental Period. The Contractor shall either inspect and service its equipment at the Rental location at intervals arranged with the Authorized User, or authorize the Authorized User to perform routine maintenance on behalf of the Contractor. The Contractor shall accept full responsibility for maintenance that the Authorized User has been authorized to perform. If performing maintenance at the Authorized User’s location, the Contractor is responsible for cleanup and removal of any resultant waste water and products.

H. Routine Service: The Authorized User shall be responsible for performing daily inspections (e.g., general condition of the Heavy Equipment, including oil level, tire condition, cooling systems, batteries) and routine service (e.g., grease components prior to use, add diesel exhaust fluid, change oil) required to keep the Heavy Equipment in good repair and running order. If such routine service is required, it is the Contractor’s responsibility to inform the Authorized User and confirm that the Authorized User understands the proper procedure for performing the routine service. The costs of labor and Consumables for routine service shall be the responsibility of the Authorized User.

I. Repair: The Contractor is responsible for repair of any equipment not functioning properly, or becoming non-functional, during the Rental Period, subject to the following:

1. Repairs, other than minor repairs (i.e., repairs that do not require special training and are completed in less than one (1) hour), are to be performed by the Contractor, or arranged for by the Contractor.

The Contractor may authorize the Authorized User to perform minor repairs, and shall accept full responsibility for repairs that the Authorized User has been authorized to perform.

2. In the event that Heavy Equipment failure has been mutually agreed upon by the Contractor and the

Authorized User to be the fault of the Authorized User, and the Contractor shall make the repairs, the Contractor shall supply the Authorized User with its currently posted hourly repair rate within three (3) business days upon request. Furthermore, the Contractor is required to supply the Authorized User with all applicable invoices within forty-five (45) days after the repairs are completed. Invoices submitted for payment must include the following:

a) Number of mechanics;

b) Total hours for repair;

c) Hourly labor rate;

d) Cost of parts;

e) Administrative charges;

f) Shipping of parts ordered specifically for the repair; and

g) Pictures of broken parts (when requested).

3. During the Rental Period, any piece of Heavy Equipment that breaks down, or is damaged, shall be repaired or replaced within two (2) business days after notification by the Authorized User. If the Authorized User has previously notified the Contractor that twenty-four (24) hour, seven (7) day a week repair service shall be required for the Rental Period, repair or replacement must be made within ten (10) consecutive hours after notification by the Authorized User. Failure to repair or replace with Heavy Equipment of similar size and capacity within the timeframe specified herein, shall result in a deduction of the Rental Price of 1/8th of the Daily Rental Price per hour of delay, 1/7th of the Weekly Rental Price per calendar day of delay, or 1/28th of the Monthly Rental Price per calendar day

Contract PSXXXXX, Contractor Name Page 12 of delay, as applicable, until the Heavy Equipment is repaired or replaced. This assessment shall apply regardless of the length of Rental Period.

4. The Rental Period shall be suspended for the time that the Heavy Equipment is unavailable for use due to required repairs, regardless of cause. In the event of a suspension of the Rental Period, the Rental Period shall either be extended accordingly, or a monetary adjustment satisfactory to the Authorized User shall be provided, at the discretion of the Authorized User.

5. If performing repairs at the Authorized User’s location, the Contractor is responsible for cleanup and removal of any resultant waste water and products.

J. 24/7 Contact Information: The Contractor shall provide general contact information for use by the Authorized User during the Rental Period. This general contact information will be posted on the OGS website for the Award.

K. In addition, if required by the Authorized User, the Contractor shall provide a 24/7 emergency contact phone number(s) for the Rental Period. If such contact information is required, the Contractor shall respond to Authorized User calls within two (2) hours from the initial call. If the Contractor fails to respond within two (2) hours, then the Rental Price for the applicable day shall be deducted from the Daily, Weekly or Monthly Rental Price, unless otherwise agreed upon by the Authorized User

L. Credit Evaluations: The Contractor is precluded from conducting credit evaluations for State Agencies.

The Contractor may conduct credit evaluations for Non-State Agencies (for listing of eligible entities, see https://ogs.ny.gov/procurement/nys-laws-extending-use-state-centralized-contracts) intending to use the Contract and deny services to Non-State Agencies that do not meet the Contractor’s standard commercial risk qualifications. The Contractor shall notify the Non-State Agency in writing that their use of the Contract has been denied based on an unsatisfactory credit rating.

3. PROCUREMENT INSTRUCTIONS FOR AUTHORIZED USERS

3.1 Procurement Instructions Overview

The following are procurement instructions for Authorized Users. OGS reserves the right to change the processes set forth in this section and in Attachment 4 – Rental Quote Forms, in either non-material or substantive ways without seeking a contract amendment.

A. When utilizing the Contract, the Authorized User should be familiar with and follow the terms and conditions governing its use. The Authorized User is accountable and responsible for compliance with the requirements of public procurement processes. The Authorized User, when purchasing from OGS contracts, should hold the Contractor accountable for Contract compliance and meeting the Contract terms, conditions, specifications, and other requirements. Also, in recognition of market fluctuations over time, Authorized Users are encouraged to seek improved pricing whenever possible. Authorized Users have the responsibility to document purchases which should include:

• A statement of need and associated requirements;

• Obtaining all necessary prior approvals;

• A summary of the Contract alternatives considered for the purchase, if any; and

• The reason(s) supporting the resulting purchase.

B. An Authorized User shall review the Contracts and associated Contractor Information, Contract Pricelists, Equipment Types document and Rental Area document on the OGS website under Contract Award 23397, and determine which Contractors offer the type of Heavy Equipment required for Rental in the county where the Heavy Equipment shall be used.

https://ogs.ny.gov/procurement/nys-laws-extending-use-state-centralized-contracts

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3.2 Rental Quote Process

Rental to Authorized Users under this Contract shall be made through a competitive Rental Quote Process as described below. The Contractor shall only provide a Rental under this Contract when the Authorized User has submitted a Rental Quote Request and subsequently requests a Rental as the result of this Rental Quote Process. See Attachment 4 – Rental Quote Forms, for forms used in the Rental Quote Process.

A. When a need is identified, an Authorized User is required to obtain all internal/control agency approvals necessary prior to initiating the Rental Quote Process. Upon internal/control agency approvals, the Authorized User shall complete a Rental Quote Request. The Rental Quote Request shall identify such things as the number and type of Heavy Equipment needed, a description of the Heavy Equipment needed, and delivery and pickup requirements.

B. Upon completion of a Rental Quote Request, the Authorized User shall submit the request to all

Contractors that offer Rental in the applicable County. Rental Quote Requests may be submitted via email or fax, or in person. The emails and faxes shall be sent to the email address(es) and fax numbers set forth in the Contractor Information section of the OGS website. The Contractor shall be responsible for providing updated email address(es) during the Contract period to the Procurement Services Contract Administrator identified on the Contact Award Notification page posted at the OGS website.

C. From the send date and time of either the email or fax that includes the Rental Quote Request, or when it was presented in person, Contractors shall have a minimum of one (1) complete Business Day, not including either the day that the email or fax was sent, or the day it was presented in person, to submit a Rental Quote. The Authorized User reserves the right to set Rental Quote submittal deadlines that are shorter than one (1) business day in the event of an Emergency. The Rental Quote submittal deadline shall be included on each Rental Quote Request.

D. A Contractor must provide Rental Quotes to the Authorized User, using the method specified by the Authorized User on the Rental Quote Request, on the Rental Quote form included in Attachment 4 – Rental Quote Forms. Instructions for completion are included on the form. A Rental Quote submitted in a format other than on the Rental Quote form may be rejected by the Authorized User.

E. The Authorized User shall be responsible for reviewing all Rental Quotes received and for selecting the

Contractor with the lowest price, including the cost of Delivery, which can meet the requested need for Heavy Equipment Rental. The determination of whether the Heavy Equipment offered in the Rental Quote meets the Authorized User need is at the sole discretion of the Authorized User. If at least three (3) Rental Quotes are not submitted, the Authorized User must justify the reasonableness of the Contractor selection in their procurement record.

1. Authorized Users are instructed to notify the Contractor that has been selected to provide the Rental within two (2) business days of the deadline for submittal of the Rental Quote. Such notification may be via email, fax or phone, or in person, to the Contractor contact information set forth in the Contractor Information section of the OGS website. Contractors that submitted a Rental Quote but have not been selected shall be notified at the Authorized User’s discretion. The Contractor is requested, but not obligated, to refrain from scheduling Rental of the Heavy Equipment specified in the Rental Quote to another customer on the Rental date(s) requested by the Authorized User, for two

(2) business days from the deadline for submittal of the Rental Quote.

2. Upon selection of the Contractor to provide the Rental, the Authorized User shall issue a Purchase

Order to the Contractor following the Authorized User’s standard procedures (see Section 4.11 Ordering), and ensure that a copy of Rental Quote Request, Rental Quotes received, and other pertinent documents are maintained for audit purposes following the Authorized User’s standard procedures.

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3.3 Rental Quote Reserved Rights

A. Authorized User Reserved Rights. Authorized Users reserve the right in the Rental Quote Process to:

1. Reject any or all responses received in response to a Rental Quote Request;

2. Withdraw the Rental Quote Request at any time, at the Authorized User’s sole discretion;

3. Issue a Purchase Order for all or part of the number of pieces of Heavy Equipment requested in a

Rental Quote Request;

4. Disqualify any Contractor submitting a Rental Quote whose conduct and/or proposal fails to conform to the requirements of the Rental Quote Request;

5. Seek clarifications and revisions of Rental Quotes;

6. Prior to the Rental Quote Request submittal deadline, amend the specifications to correct errors or oversights, or to supply additional information, as it becomes available;

7. Prior to the Rental Quote Request submittal deadline, direct Contractors to submit modifications addressing subsequent Rental Quote Request amendments;

8. Change any of the schedule dates with notification to all Contractors that received a Rental Quote

Request from the Authorized User;

9. Eliminate any mandatory, non-material specifications that cannot be complied with by all of the

Contractors that have submitted a Rental Quote in response to a Rental Quote Request;

10. Waive any requirements in the Rental Quote Request that are not material;

11. Utilize any and all ideas submitted in the Rental Quotes received;

12. Adopt all or any part of a Contractor’s Rental Quote in selecting the optimum provider of the Heavy

Equipment Rental.

13. Negotiate with the Contractor responding to the Rental Quote Request within the Rental Quote

Request requirements to serve the best interests of the State. This includes requesting clarifications of any or all Contractor’s Rental Quotes;

14. Require clarification at any time during the Rental Quote Process and/or require correction of arithmetic or other apparent errors for the purpose of assuring a full and complete understanding of a Contractor’s Rental Quote and/or to determine a Contractor’s compliance with the requirements of the Rental Quote Request;

15. Select an alternate provider for the Heavy Equipment Rental other than the selected Contractor in the event of unsuccessful negotiations or, optionally, in other specified circumstances as detailed in the Rental Quote Request; and

16. Use information obtained through site visits, management interviews, and the state’s investigation of a Contractor’s qualifications, experience, ability or financial standing, and any material or information submitted by the Contractor in response to the Authorized User’s request for clarifying information in the course of evaluation and/or selection under the Rental Quote Request.

B. New York State Reserved Rights. The State reserves the right to:

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1. Use an on-line process, such as an eProcurement system, to make acquisitions under the Contracts.

Contractor agrees to participate in an on-line process established by OGS;

2. Aggregate the volume of Authorized User requests for Heavy Equipment Rental by combining requests under one Rental Quote Request; and

3. Issue a Rental Quote Request with general specifications for Heavy Equipment that may be utilized by all Authorized Users over a period of time.

3.4 Authorized User Responsibilities and Rights

The Authorized User shall have the following responsibilities and rights in regard to the Heavy Equipment Rental:

A. Delivery: An Authorized User may choose to either use their own personnel and equipment for Delivery, or a third-party provider.

B. Inspection: Upon Delivery, the Authorized User shall inspect the Heavy Equipment in accordance with

Section 4.14 Product Delivery, Paragraph D, and sign a mutually agreed-upon equipment condition report. After Authorized User inspection and execution of the condition report, the Authorized User shall sign a receipt certifying Delivery of the Heavy Equipment and mutual agreement with the equipment condition report (see Section 2.2 Rental Service Requirements, Paragraph D Standard Rental Agreement/Delivery Ticket).

C. Equipment Operators: Only employees of the Authorized User who are qualified and trained in the safe operation of the Heavy Equipment shall be permitted to operate the Heavy Equipment. The Authorized User shall provide and pay for all workers’ compensation insurance and pay all payroll taxes required by law and applying to such operators.

D. Permits: The Authorized User shall be solely responsible for obtaining, maintaining and paying costs of any permits or licenses needed for the use or operation of the Heavy Equipment. This includes any OSHA required certifications or licenses associated with the Rental. The Contractor makes no representation regarding the requirement of permits for the use or operation of the Heavy Equipment.

E. Care and Operation: The Heavy Equipment may only be used and operated in a manner consistent with the OEM’s operating manual. Its use must comply with all laws, ordinances, and regulations relating to the possession, use, or maintenance of the Heavy Equipment, including registration and/or licensing requirements. The Authorized User shall not remove, alter, disfigure or cover up any numbering, lettering, or insignia displayed upon the Heavy Equipment;

F. Consumables: In accordance with Section 2.2 Rental Service Requirements, Paragraph F Consumables, the Authorized User is responsible for the cost of all Consumables used during the Rental Period, and with replenishing them as needed during the Rental Period using the proper procedures specified in the OEM’s operating manual, or as directed by the Contractor. Upon return of the Heavy Equipment to the Contractor, if the fuel tank is not at full capacity it shall be refilled at the Authorized User’s expense. The Authorized User reserves the right to utilize fuel pumps other than those owned by the Contractor.

G. Maintenance: In accordance with Section 2.2 Rental Service Requirements, Paragraph G Maintenance, the Authorized User shall grant access to the Heavy Equipment to the Contractor during the Rental Period for the purposes of inspecting and servicing the unit at mutually agreed-upon intervals. If previously agreed-upon, the Authorized User may perform routine maintenance on behalf of the Contractor.

H. Routine Service. In accordance with Section 2.2 Rental Service Requirements, Paragraph H Routine

Service, the Authorized User shall perform daily inspections and routine service (e.g., grease components prior to use, add diesel exhaust fluid, change oil) required to keep the Heavy Equipment in good repair and running order. Exterior washing, cleaning and decontamination (e.g., if used in a hazardous waste operation) of the Heavy Equipment, prior to return, shall be the responsibility of the Authorized User.

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I. Minor Repair: In accordance with Section 2.2 Rental Service Requirements, Paragraph I Repair, Subparagraph 1, the Authorized User may perform minor repairs, (i.e., repairs that do not require special training and are completed in less than one (1) hour), with prior authorization from the Contractor.

J. Equipment Damage or Loss after Delivery: The Authorized User assumes all risks of loss or physical damage to the Heavy Equipment caused by theft, accident or vandalism during the Rental Period, and agrees to return it to the Contractor in the condition specified in the mutually agreed-upon equipment condition report, with the exception of normal wear and tear as defined by the OEM. The Authorized User is responsible for tire damage or excessive wear or damage to the machine (e.g., broken glass, lights or gauges and bent sheet metal, fenders, handrails). Determination of which party is at fault for the damage or loss shall be mutually agreed between the parties, and the burden of proof is with the Contractor.

1. In the event of an accident and/or vandalism, the Authorized User shall inspect and appraise damage, or arrange for such services, prior to any repairs. The Authorized User shall be responsible for filing all reports that are necessary and forwarding the reports to the Contractor.

2. The Authorized User can either request that the Contractor make any repairs or, with mutual agreement of the Contractor, elect to use one of its own in-house repair shops.

3. If the Heavy Equipment is deemed a total loss or the cost of the necessary repairs exceed the Heavy

Equipment value, the Contractor shall be reimbursed for the residual value of the Heavy Equipment’s value based either on the average of the wholesale and retail price as listed in the current monthly edition of a mutually agreed-upon industry used equipment guide, or other method that is mutually-agreed upon by the Contractor and the Authorized User. This payment shall serve as full satisfaction of any and all Authorized User liabilities under the Contract. The Authorized User’s liability to pay the Daily, Weekly or Monthly Rental Price ceases at the same time that the Heavy Equipment becomes unusable. The Authorized User shall pay the Contractor the accrued Rental cost, on a prorated basis, for the Rental Period during which the accident or vandalism occurred. Upon payment of residual value, the Contractor shall provide the Authorized User with the title or certificate of ownership and transfer ownership of said Heavy Equipment to the Authorized User. The Authorized User then has the right to salvage or otherwise dispose of such Heavy Equipment.

4. In the event of theft, if the Heavy Equipment is not recovered within thirty (30) days, the Heavy

Equipment is to be declared a total loss. The Contractor shall be reimbursed for the residual value of the Heavy Equipment based on the average of the wholesale and retail price as listed in the current monthly edition of a mutually agreed-upon industry used equipment guide. This payment shall serve as full satisfaction of any and all Authorized User liabilities under the Contract. The Authorized User’s liability to pay the Daily, Weekly or Monthly Rental Price ceases at the same time that notification of the theft is reported to the Contractor. The Authorized User shall pay the Contractor the accrued Rental cost, on a prorated basis, for the Rental Period during which the theft occurred. Upon payment of residual value, the Contractor shall provide the Authorized User with the title or certificate of ownership and transfer ownership of said Heavy Equipment to the Authorized User. The Authorized User then retains ownership of the Heavy Equipment if it is later recovered.

K. Insurance and Insurance Certificate: Insurance that covers the Heavy Equipment rented by the

Authorized User, effective for the full Rental Period, shall be provided as set forth below.

1. State Agencies. At the start of the Contract term, and upon renewal of the insurance policy, the OGS Bureau of Risk & Insurance Management shall issue a Certificate of Insurance that specifies the blanket physical damage coverage provided for all Rentals, other than vehicles, by Authorized Users that are State Agencies covered by the State’s self-retention policy. Such coverage shall be for physical damage only, with a one million ($1,000,000) limit per item, and a five million ($5,000,000) general aggregate for the year.

2. A separate Certificate of Insurance shall be issued to the Contractor, prior to commencement of the Rental Period, by the OGS Bureau of Risk & Insurance Management for each Rental of Heavy

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Equipment that is a vehicle (i.e., has a license plate affixed to it and may be operated on a roadway).

Such coverage shall be for physical damage only, and have a $400,000 limit per loss.

3. Other Entities. All Authorized Users that are not covered by the State’s self-retention policy shall obtain insurance for any Heavy Equipment Rental in an amount satisfactory to the Contractor. A copy of the insurance certificate, or other satisfactory proof of insurance, shall be provided to the Contractor prior to the commencement of the Rental Period. At the Authorized User’s discretion, insurance coverage for the Rental Period may be obtained from the Contractor.

L. Option to Renew: If the Authorized User is not in material default upon the expiration of the Rental Period, the Authorized User shall be given priority to renew or extend the Rental Period, if the Heavy Equipment has not been previously scheduled for Rental by a third party.

M. Moving Equipment: The Authorized User shall have the right to move Heavy Equipment at their own expense to locations different from the Delivery location, provided that the new location(s) is located in NYS. The Authorized User must have prior authorization from the Contractor to move the Heavy Equipment outside NYS boundaries. If moving the Heavy Equipment results in a different pickup location than previously agreed-upon, the only additional charges allowed to the Contractor shall be for additional mileage, if any.

N. Subletting and Assignment: The Authorized User shall not be entitled to sublet or assign any of its rights under this Contract or to any of the Heavy Equipment rented to any entity that is not an Authorized User.

The Authorized User may sublet the Heavy Equipment to another Authorized User only with the prior Written consent of the Contractor.

4. TERMS AND CONDITIONS

4.1 Contract Term and Extensions

The Contract shall be in effect for a term of…