7720023141_BaseContract.pdf

7720023141BaseContract.docx

BASE TERMS AND CONDITIONS FOR

ALL CONTRACTORS AWARDED UNDER 23141

PUBLIC SAFETY COMMUNICATIONS EQUIPMENT AND SERVICES

(TWO-WAY RADIOS AND SATELLITE PHONES) (STATEWIDE)

BY

NEW YORK STATE

OFFICE OF GENERAL SERVICES

Group 77200 – Public Safety Communications Equipment and Services (Two-Way Radios and Satellite Phones) Page 2 of 42

Group 77200 – Award 23141

STATE OF NEW YORK

OFFICE OF GENERAL SERVICES

CENTRALIZED CONTRACT FOR THE ACQUISITION OF

PUBLIC SAFETY COMMUNICATIONS EQUIPMENT AND SERVICES

THIS AGREEMENT (hereinafter the “Contract” or the “Agreement”) is made 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 AWARDED CONTRACTOR NAME [see list of awarded Contractors:

https://online.ogs.ny.gov/purchase/snt/awardnotes/7720023141can.htm] having its principal place of business at AWARDED CONTRACTOR ADDRESS (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 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 public safety communications equipment and services, as further described herein; and

WHEREAS, OGS conducted a non-competitive procurement to identify the bidder(s) which could provide public safety communications equipment and services, referred to as Solicitation #23141 (hereinafter the “Solicitation”), which was advertised on April 9, 2019, in the New York State Contract Reporter, as required by New York State Economic Development Law; and

WHEREAS, awards were to be made to responsible and responsive bidders that met the terms and conditions of the Solicitation, in accordance with the method of award set forth in the Solicitation; and

WHEREAS, the State has determined that the Contractor submitted a responsive bid, and met the terms and conditions of the Solicitation, and, therefore, the Contractor has been awarded a contract for Solicitation #23141; and

WHEREAS, the Contractor is willing to provide the Products 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:

(Two-Way Radios and Satellite Phones) Page 3 of 42

TABLE OF CONTENTS

SECTION 1: INTRODUCTION

1.1 OVERVIEW

1.2 PARTICIPATION

1.3 SCOPE

1.4 REGIONS

1.5 ESTIMATED SPEND AND QUANTITIES

1.6 DEFINITIONS

1.7 APPENDICES AND ATTACHMENTS

1.8 CONFLICT OF TERMS

SECTION 2: PRICING

2.1 PRICING REQUIREMENTS

2.2 PRICING STRUCTURE

2.3 REASONABLENESS OF PRICE

2.4 VOLUME DISCOUNTS

2.5 PROHIBITION ON LEASING/RENTING

SECTION 3: TERMS AND CONDITIONS

3.1 CONTRACT TERMS AND EXTENSIONS

3.2 SHORT TERM EXTENSION

3.3 SURVIVAL OF AUTHORIZED USER AGREEMENTS

3.4 ADDITIONAL CONTRACTOR TERMS AND CONDITIONS WITHIN AN AUTHORIZED USER

AGREEMENT

3.5 PROCUREMENT INSTRUCTIONS FOR AUTHORIZED USERS

3.6 PERIODIC RECRUITMENT

3.7 EMERGING TECHNOLOGIES

3.8 CONTRACT UPDATE PROCEDURES

3.9 UTILIZATION OF RESELLERS

3.10 UTILIZATION OF SUBCONTRACTORS

3.11 CONTRACTOR RESPONSIBILITY REGARDING SUBCONTRACTORS

3.12 NYS DOL PREVAILING WAGE RATES

3.13 PRODUCT LINES

3.14 DEFERRED PAYMENT PLAN (DPP)

3.15 PRICE LIST UPDATES

3.16 BEST PRICING OFFER

3.17 PURCHASING CARD ORDERS

3.18 ORDERING

3.19 INVOICING AND PAYMENT

3.20 PRODUCT DELIVERY

3.21 PRODUCT RETURNS AND EXCHANGES

(Two-Way Radios and Satellite Phones) Page 4 of 42

3.22 NYS FINANCIAL SYSTEM (SFS)

3.23 AMERICANS WITH DISABILITIES ACT (ADA)

3.24 INSURANCE

3.25 PERFORMANCE AND PAYMENT BONDS

3.26 REPORT OF CONTRACT USAGE

3.27 CONTRACT ADMINISTRATOR OR EMERGENCY CONTACT

3.28 CONTRACT 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

3.29 PARTICIPATION OPPORTUNITIES FOR NEW YORK STATE CERTIFIED SERVICE-DISABLED

VETERAN OWNED BUSINESSES

3.30 USE OF RECYCLED OR REMANUFACTURED MATERIALS

3.31 BULK DELIVERY AND ALTERNATE PACKAGING

3.32 SURPLUS/TAKE-BACK RECYCLING

3.33 ENVIRONMENTAL ATTRIBUTES AND NYS EXECUTIVE ORDER NUMBER 4

3.34 CONSUMER PRODUCTS CONTAINING MERCURY

3.35 PREFERRED SOURCE PRODUCTS AND SERVICES

3.36 NYS VENDOR RESPONSIBILITY

3.37 NYS TAX LAW SECTION 5-A

3.38 “OGS OR LESS” GUIDELINES

3.39 NON-STATE AGENCIES PARTICIPATION IN CENTRALIZED CONTRACTS

3.40 EXTENSION OF USE

3.41 NEW ACCOUNTS

3.42 DRUG AND ALCOHOL USE PROHIBITED

3.43 TRAFFIC INFRACTIONS

3.44 INSTRUCTION MANUALS

3.45 RECALLS

3.46 REMOVAL OF RECORDS FROM PREMISES

3.47 CONFIDENTIALITY OF AUTHORIZED USER DATA, PROCEDURES, INFRASTRUCTURE, ETC. . 32

3.48 DRAWINGS

3.49 FEDERAL FUNDING

3.50 AUTHORIZED AND/OR CERTIFIED TECHNICIANS

3.51 ONGOING COMPLIANCE REGARDING EQUIPMENT AND SERVICE OFFERINGS

3.52 POOR PERFORMANCE

3.53 OVERLAPPING CONTRACT EQUIPMENT AND SERVICES

3.54 NYS RESERVED RIGHTS

3.55 AUTHORIZED USER RESERVED RIGHTS

SECTION 4: INSTALLATION AND INTEGRATION

4.1 GENERAL REQUIREMENTS

4.2 FRONT-END DOCUMENTS

4.3 SITE VISIT/WALKTHROUGH AND EXAMINATION OF SPECIFICATIONS

SECTION 5: MAINTENANCE

(Two-Way Radios and Satellite Phones) Page 5 of 42

5.1 GENERAL PROVISIONS

5.2 PREVENTATIVE MAINTENANCE

5.3 REMEDIAL MAINTENANCE

5.4 REMOTE MAINTENANCE/REMOTE SUPPORT

5.5 MAINTENANCE SERVICES FOR EQUIPMENT PURCHASED OUTSIDE OF THE CONTRACT

5.6 MAINTENANCE SHEETS

5.7 MAINTENANCE RESPONSIBILITY

5.8 MAINTENANCE GUARANTEE

5.9 FAILURE TO COMPLY

SECTION 6: ADDITIONAL TERMS

6.1 NOTICES

6.2 CAPTIONS

6.3 SEVERABILITY

6.4 COUNTERPARTS

6.5 ENTIRE AGREEMENT

(Two-Way Radios and Satellite Phones) Page 6 of 42

SECTION 1: INTRODUCTION

1.1 OVERVIEW

This Contract is issued by the New York State (“NYS”) Office of General Services – Procurement Services (“OGS”) for Public Safety Communications Equipment and Services (Two-Way Radios and Satellite Phones) as specified herein for all Authorized Users eligible to purchase through this Contract.

The Contract requires a competitive Second Tier Solicitation for certain Authorized User transactions (see Attachment 7 – How to Use This Contract). Reseller participation is allowed.

The Contract has an initial term of 5 years with extension options, not to exceed a total term of 10 years. This Procurement includes provisions for Periodic Recruitment.

Attachment 7 – How to Use this Contract provides guidance to both Contractors and Authorized Users on utilizing the Contract.

1.2 PARTICIPATION

Contractors may not be Resellers or Subcontractors on any other Contract awarded as a result of Solicitation 23141 or any Periodic Recruitment thereof.

1.3 SCOPE

The Contract is limited to the items listed in the Lots set forth below. All other items are excluded from the scope of this Contract.

All Equipment and Services offered and sold under this Contract, must directly involve the provision of Public Safety Communications Equipment and Services. For example: The purchase of PC monitors must be for a use that directly supports the operation of a Public Safety Communication system.

The Services offered in this Contract are subject to the Prevailing Wage Rate provisions of the NYS Labor Law. For more information, see Section 3.12 – NYS DOL Prevailing Wage Rates.

Contract is comprised of the following Lots :

LOT 1: RADIO EQUIPMENT ONLY

LOT 2: RADIO EQUIPMENT AND SERVICES

LOT 3: SATELLITE PHONE EQUIPMENT ONLY

1.3.1 LOT 1: RADIO EQUIPMENT ONLY

(INCLUDES RADIO EQUIPMENT, ACCESSORIES, AND SITE HARDWARE EQUIPMENT)

1. Radios:

A. Portable Radios (hand-held): Includes, but is not limited to: portable radios, single or multi-band (dual, triple, etc.), including amateur, aviation, and marine radios.

B. Mobile Radios (vehicle-installed): Includes, but is not limited to: mobile radios, single or multi-band (dual, triple, etc.), including amateur, aviation, and marine radios.

C. Desktop Radios: Includes, but is not limited to: desktop/console radios, single or multi-band (dual, triple, etc.).

D. Microwave Radios: Includes Microwave radios.

2. Radio Infrastructure: Includes:

A. base stations B. voting systems C. radio network hardware

(Two-Way Radios and Satellite Phones) Page 7 of 42

3. Repeaters: Includes, but is not limited to:

A. base station repeaters, single or multi-band B. in-vehicle repeaters

4. Antennas: Includes, but is not limited to:

A. microwave antennas B. mobile antennas C. base station antennas D. repeater antennas E. satellite antennas

5. Frequency Equipment: Includes, but is not limited to:

A. radio frequency (RF) transmission lines B. RF filtering equipment C. duplexers and multiplexers

6. Dispatch Equipment: Includes, but is not limited to:

A. IP-based interoperability gateway devices B. Radio dispatch console systems

7. Site Hardware for Two-Way Radio Systems: Includes, but is not limited to:

A. Uninterruptable Power Supply (UPS) equipment B. tower mounting equipment C. cable bridges D. cable trays E. lightning protection

8. Accessories:

A. Portable Radio Accessories – Includes, but is not limited to:

1. Batteries – includes, but is not limited to:

a. Large capacity batteries

b. Standard capacity batteries

c. Battery conditioners

2. Portable Antennas – Includes, but is not limited to:

a. Stubby portable antennas

b. Standard portable antennas

3. Chargers – Includes, but is not limited to:

a. Rapid charge single chargers

b. Standard single chargers

c. Rapid multi-chargers

d. Standard multi-chargers

e. Vehicular chargers

4. Cables – Includes, but is not limited to:

a. Coaxial and Fiber Optic cables

b. Low Voltage Wiring

c. Programming cables and Software

d. AC or DC power cables

5. Body Accessories – Includes, but is not limited to:

a. Belt clips/belt loops

b. Swivel clips

c. Lapel speaker/mics

d. Headsets

e. Earpieces

(Two-Way Radios and Satellite Phones) Page 8 of 42

B. Mobile Radio Accessories – Includes, but is not limited to:

1. Handheld microphones

2. Microphones

3. Speakers

4. Programming cables and accompanying software

5. Mounts and kits for remote mounting

6. Key lock assembly

7. Charger guards

8. Diplexers

9. Triplexers

10. Multiplexers

C. Control Station Accessories – Includes, but is not limited to:

1. Microphones

2. Speakers

3. Enclosures and mounts

4. DC power supply

5. Headset

6. Programming cables

D. Radio Console Accessories – Includes, but is not limited to:

1. Core components

2. Racks

3. Intelligent workstations

4. Network equipment

5. Cabling

6. PCs and PC monitors

1.3.2 LOT 2: RADIO EQUIPMENT AND SERVICES

(INCLUDES RADIO EQUIPMENT, INSTALLATION, INTEGRATION & MAINTENANCE)

1. Radio Equipment, as outlined in Lot 1 – Radio Equipment Only.

2. Installation Service: Involves physically Installing various types of Products as part of a Two-Way

Radio System and/or adding new Products to an already existing Two-Way Radio System within the Scope of the applicable Job Title in Attachment 1 – NYS Pricing.

3. Integration Service: Actions required to join an existing and New System into an Integrated application or to connect various components of new applications into a centralized System within the Scope of the applicable Job Title in Attachment 1 – NYS Pricing. Integration covers all commissioning, programming, consulting, network/field/system engineering, design, etc. performed as part of the provision of any Two-Way Radio System.

4. Maintenance Service: Includes, but is not limited to:

A. Preventative Maintenance: Includes, but is not limited to, testing, inspecting, cleaning, software updates/patches, and scheduled repairs/replacements of Two-Way Radio Equipment.

B. Remedial Maintenance: Involves either repair or replacement of Equipment/Systems in the event that an Equipment/System Malfunctions.

For additional information, see Section 4 – Installation and Integration and Section 5 – Maintenance.

(Two-Way Radios and Satellite Phones) Page 9 of 42

1.3.3 LOT 3: SATELLITE PHONE EQUIPMENT ONLY

(INCLUDES SATELLITE PHONES AND ACCESSORIES)

1. Satellite Phones: Mobile phones which connect to orbiting satellites instead of terrestrial cell sites that provide coverage within North America.

2. Satellite Phone Accessories: Includes, but is not limited to:

1. Batteries

2. Antennas

3. Cables and Adapters

4. Cases and Holsters

5. Chargers

6. Handsets

7. Docking Stations

8. Hands-free devices (Bluetooth)

9. Mounting Solutions

10. Networking Solutions (routers, repeaters, etc.)

(Two-Way Radios and Satellite Phones) Page 10 of 42

1.4 REGIONS

Regions will be referenced by Region name, and are determined as set forth below:

Region 1 Area: Long Island Counties: Nassau, Suffolk

Region 2 Area: New York City Counties: Bronx, Kings (Brooklyn), New York, Queens, Richmond (Staten Island)

Region 3 Area: Westchester Counties: Dutchess, Putnam, Westchester

Region 4 Area: Ulster Counties: Orange, Rockland, Sullivan, Ulster

Region 5 Area: Albany Counties: Albany, Columbia, Delaware, Fulton, Greene, Montgomery, Otsego, Rensselaer, Schenectady, Schoharie

Region 6 Area: Adirondack Counties: Clinton, Essex, Franklin, Hamilton, Saratoga, Warren, Washington

Region 7 Area: Syracuse Counties: Cayuga, Herkimer, Jefferson, Lewis, Madison, Oneida, Onondaga, Oswego, St. Lawrence

Region 8 Area: Finger Lakes Counties: Broome, Chemung, Chenango, Cortland, Livingston, Monroe, Ontario, Schuyler, Seneca, Steuben, Tioga, Tompkins, Wayne, Yates

Region 9 Area: Buffalo Counties: Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans, Wyoming

Region SW (Statewide) Area: All Areas Counties: All Counties

(Two-Way Radios and Satellite Phones) Page 11 of 42

1.5 ESTIMATED SPEND AND QUANTITIES

This Contract is an Indefinite Delivery, Indefinite Quantity (IDIQ) Contract. No specific quantities are represented or guaranteed, the State provides no guarantee of individual Authorized User participation, nor is there any guarantee that demand will continue in any manner consistent with previous purchases.

The individual value of the Contract is indeterminate and will depend upon the number of Contracts issued and the competitiveness of the pricing offered. The Contractor must furnish all quantities actually ordered, at or below the Contract prices. See Appendix B, Estimated/Specific Quantity Contracts and Participation in Centralized Contracts.

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. 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 Contract could vary substantially from the estimates provided in this Contract.

1.6 DEFINITIONS

Capitalized terms used in this Solicitation shall be defined in accordance with Appendix B, Definitions, or as in Attachment 5 – Glossary of Terms.

1.7 APPENDICES AND ATTACHMENTS

The appendices and attachments as set forth in the Table of Contents are hereby expressly made a part of this Contract as fully as if set forth at length herein.

1.8 CONFLICT OF TERMS

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

1. Appendix A, Standard Clauses for New York State Contracts

2. The Contract

3. Appendix B, General Specifications

4. All other appendices and attachments to the Contract

(Two-Way Radios and Satellite Phones) Page 12 of 42

SECTION 2: PRICING

2.1 PRICING REQUIREMENTS

All approved NYS Pricing price lists and electronic Product catalogs (if provided), will be posted on the OGS Procurement Services website.

2.2 PRICING STRUCTURE

Pricing is as set forth in Attachment 1 – NYS Pricing.

All Net Prices include all applicable shipping, handling, insurance, and associated delivery charges (F.O.B. Destination the dock/delivery location of the Authorized User). See Appendix B, Shipping/Receipt of Product and Title and Risk of Loss for Products Other Than Technology Products.

All Service rates include travel time and costs associated with accessing the site of the Equipment to be serviced. Travel costs are limited to NYS rates approved by the NYS Office of the State Comptroller (OSC).

2.3 REASONABLENESS OF PRICE

Pricing must not include industrial funding fees (IFF) or other contract administration or use fees. Where Procurement Services determines a Contractor has included the IFF or other contract administration or use fees in its pricing, Procurement Services will either require the Contractor to reduce the particular pricing to reflect removing the fees, or remove the item from Contractor’s Pricelist or Contract Modification Request. Final determination for whether pricing complies with this requirement resides solely with Procurement Services.

2.4 VOLUME DISCOUNTS

Volume discounts may be applied per Purchase Order, cumulatively per ordering entity, or cumulatively statewide as specified in Contractor’s Pricelist. Volume discounts shall be defined and applied as follows:

A. Purchase Order volume discounts shall be additional discounts applied to individual Purchase Orders over a specified dollar amount.

B. Cumulative agency volume discounts shall be additional discounts applied to all future orders made by an individual ordering entity once an established volume has been met by that entity.

C. Cumulative statewide volume discounts shall be additional discounts applied to all future orders for all state and non-state orders once an established volume has been met under the Contract.

2.5 PROHIBITION ON LEASING/RENTING

Rental/Leasing is prohibited under the Contract.

(Two-Way Radios and Satellite Phones) Page 13 of 42

SECTION 3: TERMS AND CONDITIONS

3.1 CONTRACT TERMS AND EXTENSIONS

The Contract shall have an initial term of 5 years. The Contract Term shall commence after all necessary approvals, and shall become effective upon mailing or electronic communication of the final executed documents to the Contractor (see Appendix B, Contract Creation/Execution).

All OGS Centralized Contracts resulting from Solicitation 23141 shall have a co-terminus end date, including those Contracts awarded during any subsequent periodic recruitment. At the State’s option, the Contract may be extended for up to 5 years, in increments as deemed to be in the best interest of the State. Whether the optional extensions are exercised is at the sole discretion of the State. A Contractor shall retain the right to decline a Contract extension offered under this section. Any Contract extension will be under the same terms and conditions, subject to any additional applicable statutory and policy requirements.

The Contract Term provided for in this section shall extend 6 months beyond its termination date only for Authorized Users whose contracts must be registered with the Office of the New York City Comptroller. During the 6-month period, the definition of Authorized User shall be deemed to refer only to Authorized Users whose contracts must be registered with the Office of the New York City Comptroller. This extension is in addition to any other extensions available under the Contract. The extension provided for in this paragraph shall be upon the then-existing terms and conditions; provided, however, during such extension an Authorized User, as defined in this paragraph, may agree to amend such terms and conditions solely to comply with changes in statutory requirements (e.g. changes in minimum, prevailing or living wages, or regulated services).

3.1.1 MAINTENANCE TERM

The Maintenance terms of the Contract (i.e., those terms of the Contract related to Maintenance) will continue to be effective for a period of five (5) years after the original Contract termination date and will survive the original Contract term and any extensions. This includes Preventative Maintenance and Remedial Maintenance, as well as ongoing moves, additions and changes of equipment, and software upgrades to the basic system.

3.2 SHORT TERM EXTENSION

In the event a replacement Contract has not been issued, the Contract may be extended unilaterally by the State for an additional period of up to 90 calendar days upon notice to the Contractor with the same terms and conditions as the original Contract and any approved modifications. However, this extension automatically terminates should a replacement Contract be issued in the interim.

3.3 SURVIVAL OF AUTHORIZED USER AGREEMENTS

Authorized User Agreements fully executed prior to the expiration of the Contract shall survive the expiration date of the Contract, if applicable, based on the term of the Authorized User Agreement, but shall in no event go beyond 36 months from the date of expiration of the Contract.

3.4 ADDITIONAL CONTRACTOR TERMS AND CONDITIONS WITHIN AN AUTHORIZED USER

AGREEMENT

In accordance with Appendix B, Modification of Contract Terms, Contractors and Authorized Users are permitted to agree to additional terms and conditions within an Authorized User Agreement, provided that under no circumstances can Contractors or Authorized Users agree to terms and conditions which diminish or impair the terms and conditions of the Contract.

(Two-Way Radios and Satellite Phones) Page 14 of 42

3.5 PROCUREMENT INSTRUCTIONS FOR AUTHORIZED USERS

Authorized Users must review Attachment 7 - How to Use this Contract for guidance on utilizing any resulting Award.

Authorized Users must follow their internal procurement guidelines and Control Agency Requirements when utilizing the resulting Award and are responsible for documenting all decisions in their procurement record.

Procurement Services may modify Attachment 7 - How to Use this Contract or issue additional How to Use guidance during the Contract term.

3.6 PERIODIC RECRUITMENT

This Contract allows for periodic recruitment of additional Contractors during the term of the Contract. Recruitment periods are optional at the discretion of the State. Additional recruitment periods will be advertised in the NYS Contract Reporter.

Contractor may submit a Contract Amendment at time of Period Recruitment for future consideration to:

1. Add additional Regions, and

2. Update (change) the Lot(s) they are awarded.

3.7 EMERGING TECHNOLOGIES

Procurement Services reserves the right to modify the terms of the Solicitation at any time to allow for technologies not identified elsewhere under this document. If a need is identified for an “emerging technology,” and Procurement Services feels it is warranted to contract for such technology, Procurement Services reserves the right to include such technology hereunder or to issue a formal modification or amendment to the Solicitation or existing contract. The technology will have to have been in the commercial marketplace for a reasonable amount of time and have met with some degree of success among a substantial base of Issuing Entities to be considered by Procurement Services for inclusion in existing or awarding of a new Contract.

3.8 CONTRACT UPDATE PROCEDURES

Contract Updates will be handled as provided in Appendix C – Contract Modification Form and Procedures.

OGS may propose amendments to Contract terms and conditions, including any Attachments or Appendices, at any time to serve the best interest of Authorized Users.

Notwithstanding the foregoing, OGS may unilaterally make revisions, changes, and/or updates to any templates, Appendices (excluding Appendices A and B) and/or Attachments to the Contract without processing a formal agreement and/or modification.

3.9 UTILIZATION OF RESELLERS

Contractors may utilize Resellers to sell Equipment, and, if applicable, provide Services. Resellers must be eligible to quote regionally or statewide, independently and lower than Manufacturer (Contract) pricing for procurements under resulting Contracts. Resellers must also be able to accept orders, invoice and receive payment.

3.9.1 DESIGNATION AND CONDITIONS OF RESELLER PARTICIPATION

All Resellers must be authorized by OGS.

The State also reserves the right to rescind any such participation or request that Contractor name additional Resellers, in the best interests of the State, at the State’s sole discretion, at any time. Contractor shall have the right to qualify Resellers and their participation under this Contract by Product Line, contracting program (e.g., government/educational sales), Region (as specified in Section 1.4 – Regions), size/sales volume, technical training or other criteria (“qualifying criteria”), provided that:

(Two-Way Radios and Satellite Phones) Page 15 of 42

i. Such qualifying criteria are uniformly applied to all potential Resellers based upon Contractor’s established, neutrally applied commercial/governmental program criteria, and not to a particular procurement;

ii. All general categories of qualifying criteria must be disclosed by the Contractor to the State, in advance, at the beginning of the Contract Term;

iii. All qualifying criteria listed in Attachment 3 – Contractor/Reseller/Subcontractor Information that is met by the Reseller must be identified in Reseller designations (Attachment 3 – Contractor/Reseller/Subcontractor Information) at the time that Reseller approval is requested; and

iv. Immediate notice must be provided to OGS in the event that a change in a Reseller’s status occurs during the Contract Term.

All Resellers who have been approved in accordance with the foregoing paragraph shall be eligible to quote lower pricing for procurements under this Contract which meet their qualifying criteria.

3.9.2 CONTRACTOR’S OBLIGATION FOR RESELLER PARTICIPATION

Contractor shall not, directly or indirectly, by agreement, communication, or any other means, restrict any Reseller’s participation or ability to participate or compete in an Authorized User Second Tier Solicitation (RFQ) for which the Reseller is qualified to participate or compete in.

3.9.3 RESELLER VENDOR RESPONSIBILITY

If the proposed Reseller has more than $100,000 in sales as specified in Section 3.36.1 – Reseller/Subcontractor Vendor Responsibility, Contractor must have Reseller register with OSC Vendor Responsibility System in accordance with Section 3.36 – NYS Vendor Responsibility.

3.9.4 ADDING AND DELETING RESELLERS

Requests from the Contractor to add, modify, or delete Reseller(s) must be submitted by the Contractor for prior approval of OGS using Appendix C – Contract Modification Form and Procedures. Submissions for the addition, modification, and/or deletion of Reseller(s) may occur at any time throughout the term of the Contract, except within the last six months of the Contract expiration.

Contractors must utilize Appendix C – Contract Modification Form and Procedures and Attachment 3 – Contractor/Reseller/Subcontractor Information for each submission. OGS reserves the right to give first consideration to substantially complete submissions, as well as to deny revisions to a Contractor’s Reseller List whereas the Contractor is delinquent regarding administrative requirements, including, but not limited to, the submission of Attachment 6 - Report of Contract Usage, and/or proof of Insurance requirements.

3.9.5 RESPONSIBILITY FOR REPORTING RESELLER PERFORMANCE

Contractor shall be fully liable for Reseller(s) performance and compliance with all Contract terms and conditions.

Equipment and Services purchased through Reseller(s) must be reported by Contractor in the required quarterly sales reports to the State as a condition of payment. In addition to inclusion of Reseller(s) volume in the Contractor’s sales reporting obligation to the State, at the request of Authorized User, Reseller(s) shall provide Authorized User with reports of the individual Authorized User’s Contract activity with Reseller.

3.9.6 APPLICABILITY OF CONTRACT TERMS

Equipment and Services ordered directly through Reseller(s) shall be limited to Equipment or Services currently approved for inclusion under this Contract and shall be subject to all terms and conditions of this Contract as a condition of Reseller participation.

(Two-Way Radios and Satellite Phones) Page 16 of 42

3.10 UTILIZATION OF SUBCONTRACTORS

1. Contractors awarded Lot 2 are permitted to charge a Subcontractor Percent (%) Markup for all work performed by Subcontractors on Authorized User Agreements provided the Contractor has an approved Subcontractor Percent (%) Markup in its pricing pages on the OGS website. This Subcontractor Percent (%) Markup covers all back-office costs including, but not limited to, all of the following:

A. Developing a scope of work for the Subcontractors;

B. Procuring Subcontracting Services including, but not limited to, walkthroughs as necessary;

C. Managing and verifying Subcontractor project documents including, but not limited to, timesheets, certified payroll, payments, as-built documents, and project close out documents;

D. Coordinating project activity between trades;

E. Overall responsibility for Subcontractor meeting project plans and specifications;

F. Verifying Subcontractor compliance with any Prevailing Wage Rate requirements;

G. Documenting and Verifying Subcontractor compliance with any licensing, certification, etc.

requirements.

2. Prior to the execution/entering into any Authorized User Agreement which includes the use of Subcontractors, Contractor must provide Authorized Users with a copy of the quote from the Subcontractor to the Contractor for the Subcontractor’s portion of the work for this Authorized User Agreement. Subcontractors shall not execute or enter into any Authorized User Agreement.

3. When applying for payment which involves Work performed by a Subcontractor, Contractor must include a copy of the Subcontractors’ invoice to the Authorized User and clearly list the Subcontractor (%) Percent Markup.

4. Subcontractors must provide Services either on a Fixed Price/Lump Sum or Time & Material basis as required by the Authorized User, and the Contractor is responsible for verifying compliance with this.

5. Even if the Subcontractor is performing work on a Fixed Price/Lump Sum basis, the Contractor must provide the Subcontractor’s proposed Total Hourly Rate to the Authorized User as part of the Contractor's Proposal.

3.11 CONTRACTOR RESPONSIBILITY REGARDING SUBCONTRACTORS

The following requirements shall supplement the requirements of Appendix B, Employees, Subcontractors and Agents and Subcontractors and Suppliers:

1. The Contractor shall not in any way be relieved of any responsibility under the Contract by any Subcontractor.

2. The Contractor shall be solely responsible to the State and Authorized User for the acts or defaults of its Subcontractors and of such Subcontractors' officers, agents, and employees, each of whom shall for this purpose, be deemed to be the agent or employee of the Contractor to the extent of its subcontract.

3. Any Equipment or Service provided or furnished by a Subcontractor shall be deemed for purposes of the

Contract to be provided or furnished by the Contractor and must be on the Contractor’s published price list on the OGS website.

4. The Contractor shall inform each Subcontractor fully and completely of all provisions and requirements of the

Contract, including:

A. those relating either directly or indirectly to the Equipment and Services to be provided pursuant to its respective subcontract;

B. to maintain and protect against any unauthorized disclosure of records with respect to Work performed under the subcontract in the same manner as required of the Contractor;

C. those relating to the State’s rights to audit records; and D. to cooperate with any investigation, audit, or other inquiry related to the Contract or any litigation relating thereto.

(Two-Way Radios and Satellite Phones) Page 17 of 42

5. The Contractor shall pay all Subcontractors for all Work performed by such Subcontractors in accordance with the terms of their respective subcontracts. If and when required by the State or Authorized User, the Contractor shall submit satisfactory evidence that it has made such payment.

6. The Contractor shall, within 5 Business Days of the State or Authorized User Written request, file promptly with the requestor a copy of any subcontract providing services for an Authorized User Agreement.

7. The Contractor shall require that the Subcontractor pass through all terms and conditions of the Contract, including but not limited to Appendix A, to any Sub-Subcontractors.

8. The Contractor and all Subcontractors shall work in harmony with the applicable trades by complying with any collective bargaining agreement to which the Contractor or Subcontractor(s) are a party with the trades when performing work under This Award.

9. Contractor shall not engage in any Bid Shopping.

10. All employees of the Contractor, or of its Subcontractors, who shall perform Work under an Authorized User

Agreement, shall possess the necessary qualifications, training, licenses, and permits as may be required within the jurisdiction where the Services specified are to be provided or performed, and shall be legally entitled to work in such jurisdiction. All Subcontractors that perform Work under the Contract on behalf of Contractor shall comply with all applicable Federal, State, and local laws concerning employment in the United States.

11. Contractor is responsible for ensuring that Subcontractors use and do not charge more than the Total Hourly

Rates on the Contractor’s pricing published on the OGS website to develop its Authorized User Total Hourly Rates for all Services on Contract.

12. Contractor is responsible for ensuring that Subcontractors meet current Prevailing Wage Rate mandates for their respective trade.

13. Contractor is responsible for ensuring that Subcontractors only offer Equipment or Services that are listed on the Contractor’s pricing published on the OGS website.

14. Contractor shall act as the single point of contact for all Authorized Users, executing/entering into all

Authorized User Agreements directly and taking full ownership of all Subcontractor's work including, but not limited to the warranty provisions as set forth in This Award.

15. No subcontract shall impair the rights of the State or Authorized User or create any contractual relationship between the Subcontractor and the State or Authorized User.

3.12 NYS DOL PREVAILING WAGE RATES

3.12.1 OVERVIEW

This Contract is subject to the Prevailing Wage Rate provisions of New York State Labor Law. See Appendix B, Prevailing Wage Rates - Public Works and Building Services Contracts. Any federal or State determination of a violation of any public works law or regulation, or labor law or regulation, or any OSHA violation deemed "serious or willful" may be grounds for a determination of vendor non-responsibility, rejection of a Contractor’s response to an Authorized User (e.g. a Second Tier Solicitation response), suspension, or termination of Contract.

Authorized Users must obtain a separate PRC # for each purchase from the Contract where prevailing wage rates apply. The PRC # 2018009500 and associated rates provided in Solicitation 23141 were for information and evaluation purposes only. The requested PRC number must be noted on all Authorized User Agreements issued for purchases from any Contract resulting from this Solicitation.

The Authorized User Total Hourly Rate (actual hourly bill rates) for each Authorized User engagement will be established in response to a particular Authorized User Agreement and will incorporate/reference the PRC # obtained by each requesting Authorized User.

(Two-Way Radios and Satellite Phones) Page 18 of 42

Certain Equipment/Systems which are not hardwired/affixed to facilities may not require the payment of Prevailing Wage Rates and Supplemental Benefits.

3.12.2 ELIGIBLE JOB TITLES

The Job Titles, including those subject to NYS DOL Prevailing Wage Rates, available under this Contract are limited to those listed in Attachment 1 – NYS Pricing. A complete description of all Job Titles can be found in Attachment 1 – NYS Pricing.

3.12.3 LIVING WAGE LAW

An Authorized User subject to a local law, such as the “living wage” requirement as found in Section 6-109 of the New York City Administrative Code, is required to ensure the Contractor sought to be hired complies with such local law at the time of issuance of an Authorized User Agreement to the selected Contractor. If Contractor documents that it is required to pay higher than the Prevailing Wage Rate and Supplemental Benefit as per a “Living Wage Law,” it shall be allowed, after award of Contract, to propose, via the Contract update procedures, a higher rate of pay and benefits than the Prevailing Wage Rate and Supplemental Benefits, but maintaining the same Percent (%) Markup for this proposed higher pay and benefit rate as the Percent (%) Markup over the Prevailing Wage Rate and Supplemental Benefits. If a Contractor does not submit such a request and wishes to perform work for an Authorized User, it must pay the higher pay or benefits required by the Local Living Wage Law and not charge above its Total Hourly Rate.

3.13 PRODUCT LINES

If Contractor is not the Manufacturer of a Product Line, Contractor is responsible for maintaining its status as authorized to offer a Product Line or Product Line Subcategory. In the event the Contractor is no longer authorized to offer a particular Product Line (or Product Line Subcategory), it is the Contractor’s responsibility to notify Procurement Services and request the removal of this Product Line (or Product Line Subcategory) in accordance with the procedure outlined in Appendix C – Contract Modification Form and Procedures.

3.14 DEFERRED PAYMENT PLAN (DPP)

Contractor may offer Authorized Users a deferred, extended payment plan (“DPP”) for equipment purchased under this Contract at any time during the course of the Contract. A DDP is a deferred purchase agreement, not a lease. The Contractor shall not charge interest for a DPP. The Authorized User shall receive title upon acceptance of the equipment in accordance with the Contract terms. In accordance with §41 of NYS Finance Law, the customer shall have no liability under the DPP Agreement to the Contractor or anyone else beyond funds appropriated and available for the DPP Agreement. A Contractor who wishes to offer a DPP must agree to OGS standard DPP terms and conditions (supplied upon request), and receive prior approval from OGS. The warranty period (and all accompanying provisions) as required by Appendix B, Warranties shall also commence with the transferring of title.

3.15 PRICE LIST UPDATES

Contractor may update their Price List as follows:

1. Scheduled Price List Updates: Commencing with the first anniversary date of the Bid Opening (June 4, 2019) and annually thereafter, the Contractor may request an update to their price list to reflect Contractor price changes and the addition/deletion of Products. These submissions for price adjustment requests will be accepted during a two-week period (calendar week), which will be determined solely by OGS; for example, from September 25th through October 9th.

Contractors will be notified via email by the OGS Contract Management Specialist in advance of the two-week period for submission of Price List updates, and be provided with the current information and template(s) for the update. Contractors shall adhere to the information in the provided Appendix C - Contract Modification Form and Procedures for all price adjustment requests.

(Two-Way Radios and Satellite Phones) Page 19 of 42

OGS reserves the right to give first consideration to substantially complete Price List update submissions, as determined solely by OGS, as well as to deny price adjustments to Contractors that are delinquent regarding administrative requirements, including, but not limited to, the submission of Attachment 6 - Report of Contract Usage, and/or proof of insurance requirements.

2. Non-Scheduled Price List Updates: Contractors may also, at their discretion, at any time following the commencement date of their Contract, submit up to two nonscheduled price list update requests per year outside of the scheduled two-week period determined by OGS. These nonscheduled price list updates may only be used to add or delete Products; Contractor price changes cannot be requested during a nonscheduled price list update. Should a Contractor choose to submit these nonscheduled price list updates, they must use the provided Appendix C – Contract Modification Form and Procedures.

Contractors shall be permitted to increase their discount rates, and/or decrease total hourly rates and percent markups any time during the Contract Term.

The discount offered on any new Products added to price lists shall be no lower than the minimum established Product category discount. Contractors shall submit their updated price list to the OGS Contract Management Specialist pursuant to the requirements of this section for review and Written approval prior to issuing to Authorized Users or posting to the Contractor’s dedicated New York State website. The State reserves the right to request copies of existing contracts or price lists to ensure that the prices offered to the State are reasonable and commensurate with similar purchasers.

All approved price list updates shall apply prospectively upon approval by OGS. Total price increases for price list updates in a single year of the Contract shall not exceed the escalation cap as set forth in Section 3.15.1 - Escalation Cap / Maximum Price Increase. All percentage discounts shall either remain firm (unchanged) or they may increase for the duration of the Contract.

3. OGS reserves the right to deny price adjustment requests for any reason, including Contractor’s failure to adhere to administrative requirements.

3.15.1 ESCALATION CAP / MAXIMUM PRICE INCREASE

In a single year of the Contract, the maximum price increase for each individual item on contract shall not exceed the percent increase in the latest available National Consumer Price Index - All Urban Consumers (CPI-U), Not Seasonally Adjusted, U.S. City Average, All Items (Series ID: CUUR0000SA0, CUUS0000SA0); as published by the U.S. Department of Labor, Bureau of Labor Statistics, Washington, D.C. 20212. CPI-U data may be obtained at www.bls.gov.

The following example illustrates the computation of percent change:

CPI for current period 230.000 Less CPI for previous period 225.000 Equals index point change 5.000 Divided by previous period CPI 225.000 Equals 0.022 Result multiplied by 100 0.022 x 100

Equals percent change 2.2

The “CPI for current period” shall be the index in effect at the time the Contract price list update request is received; “CPI for previous period” shall be the index in effect when the Contract price list was last updated.

Increases are not cumulative. Price increases are limited to the prior year prices only.

http://www.bls.gov/

(Two-Way Radios and Satellite Phones) Page 20 of 42

3.16 BEST PRICING OFFER

During the Contract term, if substantially the same or a smaller quantity of a Product is sold by the Contractor outside of this Contract upon the same or similar terms and conditions as that of this Contract at a lower price to a federal, state or local governmental entity, the price under this Contract, at the discretion of the Commissioner, shall be immediately reduced to the lower price.

3.17 PURCHASING CARD ORDERS

If the Contractor accepts orders using the State’s Purchasing Card (see Appendix B, Purchasing Card), also referred to as the Procurement Card, the Contractor shall not charge or bill the Authorized User for any additional charges related to the use of the Purchasing Card, including but not limited to processing charges, surcharges or other fees.

3.18 ORDERING

Purchase Orders shall be made in accordance with the terms set forth in Appendix B, Purchase Orders. Authorized Users may submit orders over the phone, and, if available, may submit orders electronically via web-based ordering, e-mail, or facsimile at any time. Orders submitted shall be deemed received by Contractor on the date submitted.

All orders shall reference Contract number, requisition, and/or Purchase Order number (if applicable). Upon Contractor’s receipt of an order, confirmation is to be provided to the Authorized User electronically or via facsimile. Order confirmation should be sufficiently detailed, and include, at a minimum, purchase price, date of order, delivery information (if applicable), Authorized User name, and sales representative (if applicable).

3.18.1 MINIMUM ORDER

There is no minimum order on the Contract. Contractor shall honor all orders regardless of their value.

3.19 INVOICING AND PAYMENT

Invoicing and payment shall be made in accordance with the terms set forth in Appendix B, Contract Invoicing. The invoice must include detailed line item information to allow Authorized Users to verify that pricing at point of receipt matches the Contract price on the original date of order.

At a minimum, the following fields must be included on each invoice:

1. Contractor Name

2. Contractor Billing Address

3. Contractor Federal ID Number

4. NYS Vendor ID Number

5. Account Number

6. NYS Contract Number

7. Name of Authorized User indicated on the Purchase Order

8. NYS Agency Unit ID (if applicable)

9. Authorized User’s Purchase Order Number

10. Order Date

11. Invoice Date

12. Invoice Number

13. Invoice Amount

14. Product Descriptions

15. Unit Price of Equipment or Service

16. Quantity

17. Unit of Measure

18. Dates of Service (if applicable)

(Two-Way Radios and Satellite Phones) Page 21 of 42

Cost centers or branch offices within an Authorized User may require separate invoicing as specified by each Authorized User. The Contractor's billing system shall be flexible enough to meet the needs of varying ordering systems in use by different Authorized Users. Visit the following link for further guidance for vendors on invoicing:

https://bsc.ogs.ny.gov/content/vendor-information.

For all Work for Job Titles in a NYS DOL Prevailing Wage Rate Schedule, invoices must be accompanied by a certified payroll. At a minimum, certified payrolls must show the following information:

A. Employee’s full legal name B. Classification(s) in which the worker was employed C. Hourly wage rate(s) paid D. Supplemental Benefits paid or provided E. Daily and weekly number of hours worked in each classification

NYS DOL has issued the following sample Certified Payroll:

https://www.labor.ny.gov/workerprotection/publicwork/PDFs/PW-12%20Contractor%20Payrolls%20Cert%20.pdf

To substantiate the certified payroll and invoice, paychecks, W-2s, and time sheets must be submitted to the Authorized User and/or the State upon request. If Subcontractors are used, agreements between the Contractor and Subcontractor must be submitted in accordance with the Requirements of Appendix B and Article 8 of the New York State Labor Law.

Additional documentation not listed above that may be required to support a payment, included, but is not limited to, documentation to substantiate information contained in Certified Payroll, such as Personnel records, and documentation to substantiate legal names. Confidential information or items of a sensitive nature should be redacted.

For additional information, please see Attachment 7 – How to Use This Contract.

3.20 PRODUCT DELIVERY

Delivery of all Contract Products shall be made in accordance with Appendix B, Product Delivery and Shipping/Receipt of Product.

3.21 PRODUCT RETURNS AND EXCHANGES

In addition to the provisions of Appendix B, Title and Risk of Loss for Products Other than Technology Products, Product Substitution, and Rejected Product, Equipment returned or exchanged due to quality problems, duplicated shipments, outdated Equipment, incorrect Equipment shipped, Contractor errors otherwise not specified, or Equipment returned or exchanged due to Authorized User errors, shall be replaced with specified Equipment or the Authorized User shall be credited or refunded for the full purchase price.

Equipment shall be replaced within 10 Business Days of Written notification to the Contractor of the Authorized User’s intent to return or exchange the Equipment with no restocking charge. Any credit or refund shall be applied against the next bill/invoice submitted by the Contractor to the Authorized User. If no credit or refund, or only a partial credit or refund, is made in such fashion, the Contractor shall pay to the Authorized User the amount of such credit or refund or portion thereof still outstanding, within 30 calendar days of demand.

3.22 NYS FINANCIAL SYSTEM (SFS)

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

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

(Two-Way Radios and Satellite Phones) Page 22 of 42

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