3860423252ra.pdf

Corning Tower, Empire State Plaza, Albany, NY 12242 | https://ogs.ny.gov/procurement | customer.services@ogs.ny.gov | 518-474-6717

Contract Award Notification

Title : Group 38604 Traffic Paint (Waterborne—Lead-Free) & Glass Spheres for Reflectorized Pavement Marking (Various Types) (Statewide) Classification Code(s): 31 & 73

Award Number : 23252 (Replaces Awards 23056 & 23172)

Contract Period : May 18, 2022 through May 17, 2027

Bid Opening Date : February 10, 2022

Date of Issue : May 18, 2022 (Revised September 30, 2022)

Specification Reference : As Incorporated In The Solicitation

Contractor Information : Appears starting on Page 2 of this Award

Address Inquiries To:

Name :

Title :

Phone :

E-mail :

Brandy Alden Contract Management Specialist 2 518-408-1140 Brandy.Alden@ogs.ny.gov

Procurement Services Customer Services

Phone :

E-mail :

518-474-6717 customer.services@ogs.ny.gov

Procurement Services values your input.

Complete and return "Contract Performance Report" at end of this document.

Description This award contains:

• Ready-mixed, fast drying, white and organic yellow waterborne traffic paint for use on bituminous and Portland cement concrete pavements. Waterborne traffic paint supplied under this specification shall be designed for heated application by mobile long line striping equipment.

• Type I reflectorizing glass spheres with moisture resistant coating for application on waterborne traffic paint to produce a reflective painted roadway stripe to provide visual traffic delineation, both day and night, for the motoring public.

• Drying agent compound to be used as an additive in conjunction with waterborne traffic paint and glass spheres to provide a drying agent which accelerates the no-tack time of the waterborne traffic paint to reduce wet paint tracking into driving lanes.

Traffic markings (stripes) are regarded as one of the most cost-effective methods of controlling traffic flow;

these products increase driver awareness and help ensure the safety of the driving public.

Use of the Quick Quote to obtain pricing is MANDATORY on this contract.

This Award has 0% MBE, 0% WBE and 0% SDVOB participation goal requirements.

PR # 23252

https://ogs.ny.gov/award-23252

GROUP 38604 - Traffic Paint (Waterborne—Lead-Free) & Glass Spheres for AWARD PAGE 2 Reflectorized Pavement Marking (Various Types) (Statewide)

23252ra1

Table of Contents

SECTION 1: CONTRACTOR INFORMATION

1.1 Contractor Information

1.2 Small, Minority and Women-Owned Businesses:

1.3 Recycled, Remanufactured and Energy Efficient Products:

1.4 Note to Authorized Users:

1.5 Overview & Scope

1.6 Estimated Quantities

1.7 Definitions

1.8 Periodic Recruitment

1.9 Procurement Instructions for Authorized Users

SECTION 2: SPECIFICATIONS

SECTION 3: TERMS AND CONDITIONS

3.1 Contract Terms and Extension

3.2 Short Term Extension

3.3 Price

3.4 Quick Quote

3.5 Price Updates

3.6 Product Addition and Removal – Traffic Paint (Waterborne – Lead-Free)

3.7 Best Pricing Offer

3.8 Price Structure

3.9 Volume Discounts

3.10 Ordering

3.11 Purchasing Card Orders

3.12 Minimum Order

3.13 Minimum Production Batch Size

3.14 Invoicing and Payment

3.15 Product Delivery

3.16 Liquidated Damages

3.17 Product Returns and Exchanges

3.18 Unanticipated Excessive Purchase

3.19 Contract Administration

3.20 NYS Financial System (SFS)

3.21 N.Y. State Finance Law § 139-l

3.22 Insurance

3.23 Report of Contract Usage

3.24 Contractor Requirements and Procedures for Participation by New York State Certified Minority-and Women-Owned Business Enterprises and Equal Employment Opportunities for Minority Group Members and Women

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

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3.26 Use of Recycled or Remanufactured Materials

3.27 Environmental Attributes and NYS Executive Order Number 4

3.28 Consumer Products Containing Mercury

3.29 Diesel Emission Reduction Act

3.30 Overlapping Contract Products

3.31 Preferred Source Products

3.32 NYS Vendor Responsibility

3.33 “OGS or Less” Guidelines

3.34 Non-State Agencies Participation in Centralized Contracts

3.35 Extension of Use

3.36 Resellers

3.37 New Accounts

3.38 Drug and Alcohol Use Prohibited

3.39 Traffic Infractions

OGS Procurement Services Contract Performance Report…………………………………………………….36

GROUP 38604 - Traffic Paint (Waterborne—Lead-Free) & Glass Spheres for AWARD PAGE 4

SECTION 1: CONTRACTOR INFORMATION

1.1 Contractor Information

NOTE: See individual contract items to determine actual awardees.

Contact information for placing NYS Contract Orders and additional contractor info is provided in included within the PRICING document for this award found at the OGS website here:

https://online.ogs.ny.gov/purchase/spg/awards/3860423252CAN.HTM

Contract # Contractor Name & Address Contract Admin Information Fed. ID #/

NYS Vendor ID # PC69550 Ennis-Flint Inc Toll Free #: 800-331-8118 75-2657523 4161 Piedmont Pkwy Phone #: 336-308-3794 1000009671 Suite 370 Contact: Kelli AH-Keen Greensboro, NC 27410 Email: KAH-Keen@ppg.com

Contract # Contractor Name & Address Contract Admin Information Fed. ID #/

NYS Vendor ID # PC69551 Ozark Materials LLC Phone #: 334-368-1655 45-4117820 591 Glendale Ave Contact: Noel Seale 1100182975 Greenville, AL 36033 Email: bids@ozarkmaterials.net

NYS Vendor ID #

PC69552 Potters Industries LLC Toll Free #: 800-552-3237 22-1933307 3222 Phoenixville Pike Phone #: 445-895-3209 1000016855 Suite 103 Contact: Yvonne D. Harris Malvern, PA 19355 Email: Yvonne.Harris@pottersindustries.com

NYS Vendor ID #

PC69554 The Sherwin-Williams Company 34-0526850 101 W Prospect Ave Phone #: 800-597-2929 1000031328 Cleveland, OH 44115 Contact: Inside Sales Email: hwyinsidesales@sherwin.com

Cash Discount, If Shown, Should be Given Special Attention.

AGENCIES SHOULD NOTIFY NEW YORK STATE OGS PROCUREMENT SERVICES

PROMPTLY IF THE CONTRACTOR FAILS TO MEET DELIVERY OR OTHER TERMS OF THIS

CONTRACT.

PRODUCTS OR SERVICES WHICH DO NOT COMPLY WITH THE SPECIFICATIONS OR ARE

OTHERWISE UNSATISFACTORY TO THE AUTHORIZED USER SHOULD ALSO BE REPORTED

TO OGS PROCUREMENT SERVICES.

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1.2 Small, Minority and Women-Owned Businesses:

The letters SB listed under the Contract Number indicate the contractor is a NYS small business. Additionally, the letters MBE and WBE indicate the contractor is a Minority-owned Business Enterprise and/or Woman-owned Business Enterprise.

1.3 Recycled, Remanufactured and Energy Efficient Products:

Procurement Services supports and encourages the purchase of recycled, remanufactured, energy efficient and "energy star" products. If one of the following codes appears as a suffix in the Award Number or is noted under the individual Contract Number(s) in this Contract Award Notification, please look at the individual awarded items for more information on products meeting the suffix description.

RS, RP, RA Recycled RM Remanufactured SW Solid Waste Impact EE Energy Efficient E* EPA Energy Star ES Environmentally

Sensitive

1.4 Note to Authorized Users:

When placing purchase orders under the contract(s), the authorized user should be familiar with and follow the terms and conditions governing its use which usually appears at the end of this document. The authorized user is accountable and responsible for compliance with the requirements of public procurement processes. The authorized user must periodically sample the results of its procurements to determine its compliance. In sampling its procurements, an authorized user should test for reasonableness of results to ensure that such results can withstand public scrutiny.

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, particularly when using OGS multiple award contracts for the same or similar product(s)/service(s), which should include:

• a statement of need and associated requirements,

• a summary of the contract alternatives considered for the purchase,

• the reason(s) supporting the resulting purchase (e.g., show the basis for the selection among multiple contracts at the time of purchase was the most practical and economical alternative and was in the best interests of the State).

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1.5 Overview & Scope

This Solicitation is issued by the New York State (“NYS”) Office of General Services (“OGS”), Procurement Services for Traffic Paint (Waterborne—Lead-Free) & Glass Spheres for Reflectorized Pavement Marking (Various Types) as specified herein for all Authorized Users eligible to purchase through this Solicitation.

Traffic markings (stripes) are regarded as one of the most cost-effective methods of controlling traffic flow and these products increase driver awareness and help ensure the safety of the driving public.

The solicitation contains:

• Ready-mixed, fast drying, white and organic yellow waterborne traffic paint for use on bituminous and Portland cement concrete pavements. Waterborne traffic paint supplied under this specification shall be designed for heated application by mobile long line striping equipment.

• Type I reflectorizing glass spheres with moisture resistant coating for application on waterborne traffic paint to produce a reflective painted roadway stripe to provide visual traffic delineation, both day and night, for the motoring public.

• Drying agent compound to be used as an additive in conjunction with waterborne traffic paint and glass spheres to provide a drying agent which accelerates the no-tack time of the waterborne traffic paint to reduce wet paint tracking into driving lanes.

1.6 Estimated Quantities

A Contract resulting from this Solicitation shall be 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 anticipated dollar value of the award for this Solicitation, based on historical purchases under previous awards, is approximately $5 million annually.

The individual value of each resultant 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, Estimated/Specific Quantity Contracts and Participation in Centralized Contracts.

Numerous factors could cause the actual quantities of Products purchased under a Contract resulting from this Solicitation to vary substantially from the estimates 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.

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• 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.

By submitting a Bid, Bidder 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 this Solicitation.

1.7 Definitions

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

“Bid Deviation” shall refer to any variance submitted or proposed by a Bidder, which deviates from, adds extraneous terms to, conflicts with or offers an alternative to any term, condition, specification or requirement of the Solicitation.

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

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

“NYS Holidays” refers to the legal holidays for State employees in the classified service of the executive branch, as more particularly specified on the website of the NYS Department of Civil Service. This includes the following: New Year’s Day; Martin Luther King 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” shall mean the ten-character identifier issued by New York State when a vendor is registered on the Vendor File.

“Preferred Source Products” shall refer to those Products that have been approved in accordance with New York State Finance Law § 162.

“Preferred Source Program” shall refer to the special social and economic goals set by New York State in State Finance Law § 162 that require a governmental entity purchase select Products from designated organizations when the Products meet the “form, function and utility” requirements of the governmental entity. Under State Finance Law § 163, purchases of Products from Preferred Sources are given the highest priority and are exempt from the competitive bidding requirements. The New York State Preferred Sources include: The Correctional Industries Program of the Department of Corrections and Community Supervision (“Corcraft”); New York State Preferred Source Program for People Who Are Blind (“NYSPSP”); and the New York State Industries for the Disabled (“NYSID”). These requirements apply to state agencies, political subdivisions and public benefit corporations (including most public authorities).

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

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“Resellers” shall refer to any model for distribution of Product other than direct from the Contractor. Resellers include but are not limited to approved value-added resellers (“VARs”), distributors, dealers, sales agents, and alternate channel partners.

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

1.8 Periodic Recruitment

This Solicitation 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 NYSCR. Bidder must register with the New York State Contract Reporter at https://www.nyscr.ny.gov in order to receive notifications regarding any periodic recruitments under this Solicitation. Bids shall be evaluated under substantially the same terms and conditions as the original Bids. Bidders shall also be required to submit necessary documentation for any additional applicable statutory requirements in effect at the time of the new Solicitation.

Once awarded a Contract, a Contractor may not resubmit a Bid for future consideration for LOTS covered by the scope of the awarded Contract. In addition, if a Bid is deemed non-responsive during the initial Solicitation or any recruitment period, a Bidder cannot reapply for a future Contract until the next recruitment period.

1.9 Procurement Instructions for Authorized Users

The resultant Contracts will be issued under a multiple award structure. Authorized Users shall procure Products that best meet their form, function, and utility requirements.

Before proceeding with their purchase, Authorized Users shall check the list of Preferred Source offerings and are reminded that they must comply with State Finance Law, particularly § 162, regarding commodities/services provided by preferred source suppliers.

The use of the Quick Quote Worksheet is MANDATORY for all purchases made by any Authorized User through the Contract(s) on this award.

Pursuant to State Finance Law § 163(10)(c), at the time of purchase, Authorized Users must base their selection among multiple Contracts upon which is the most practical and economical alternative that is in the best interests of the State.

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SECTION 2: SPECIFICATIONS

It is the Contractor’s responsibility to provide product that conforms with the specifications as listed in the Invitation for Bids for the entire term of the awarded contract. No changes or substitution of products or pricing is permitted without the express approval of OGS Procurement Services.

References made in this Solicitation are to NYSDOT Materials Bureau Approved Lists most current version as published at the time of this Invitation for Bids.

See Attachment – Specifications, of this Solicitation for detailed information.

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SECTION 3: TERMS AND CONDITIONS

3.1 Contract Terms and Extension

A. Base Term: Notwithstanding the provisions of Appendix B Section 22, Contract Creation/Execution, the base contract term shall begin on the later of (i) May 18, 2022, or (ii) the date of OSC approval of the final, executed contract documents and consistent with the MOU, and shall continue through and including May 17, 2027.

B. Extensions. At the State’s option, and subject to the approval of OSC and consistent with the MOU, the Contract may be extended for three (3) 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. Any extensions provided under this section shall apply in addition to any rights set forth in Appendix B, Contract Term – Extension.

C. The Contract term provided for in this section shall extend six 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 six-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).

3.2 Short Term Extension

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

3.3 Price

Price shall include all customs duties and charges and be net, FOB destination any point within the State of New York, as designated by the Authorized User, including dock delivery (unloading of the product will be performed by the Authorized User, unless previously agreed by the vendor). Additional fees may be charged to the purchaser when delivery to point of use is not possible via dock, any other door, stairway or elevator freight service and/or when specialized service is requested in writing by the purchaser. Such costs shall be prepaid and added to the invoice. Authorized Users will not be charged for delivery to their building location since price is FOB destination; Authorized User must be informed of the additional cost prior to delivery and agree to the additional charge.

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Contractors are encouraged to offer their best possible pricing; additionally, Authorized Users are required to use the Quick Quote process to obtain the best possible pricing.

Contract prices are not-to-exceed for all LOTS and shall be firm except in the case of lowered pricing submitted using the Quick Quote process in accordance with Section - Quick Quotes, or price updates permitted in accordance with Section - Price Updates, of this Solicitation.

If it is determined the Contractor is charging excessive amounts for specialized delivery services, the State may seek reimbursement for such amounts, may remove the Contractor from the list of eligible Bidders, and may cancel the Contract.

3.3.2 Traffic Paint (Waterborne—Lead-Free): Return of Containers

Both 55-gallon and 275-gallon capacity containers remain the property of the Contractor and are to be removed at no additional cost.

Upon notification, Contractor shall be responsible for picking up and removing at their own expense, all drums and totes furnished by the Contractor during the Contract period. See Attachment 9 – Specifications, Section - Packaging for additional information.

3.4 Quick Quote

Authorized Users must select the appropriate Contractor to provide their particular product by using the Quick Quote worksheet form.

During the course of selecting and awarding one of the Contractors listed in this Solicitation, Authorized Users should try to obtain lower prices and Contractors may wish to lower their Contract prices for various reasons, i.e., excess supply, slow business, etc.

Each Quick Quote situation is unique, and the price is firm for that particular purchase only.

If Bid security is a concern, the Authorized User may require Bids to be sealed and/or opened publicly.

The use of the Quick Quote Worksheet will be MANDATORY for all purchases made by any Authorized User through the Contract(s) resulting from this Invitation for Bids.

Agencies using the Quick Quote form are required to award to the lowest responsive Bid meeting the Authorized User’s requirements outlined in the requested quote, including guaranteed delivery. There are no negotiations permitted following the Quick Quote and prices cannot be changed once offered. If award is made to other than the lowest Bid, the Authorized User must prepare detailed documentation explaining the action taken for the failure to meet requirements (i.e., the low Contractor could not provide the product in the time frame required, Contractor did not have needed quantity, etc.). This explanation along with the Quick Quote responses must be made a part of the procurement record.

Contractors are not required to respond, or to lower their awarded “not-to-exceed” prices when they receive a Quick Quote. Prices quoted remain firm regardless of what the price adjustment is at the time of delivery.

The Quick Quote form will be published to the OGS website (on the contract award landing page) at the time of award.

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3.5 Price Updates

Prices set forth in this Contract are firm through August 31st, 2022. Beginning September 1st, 2022 and every six months thereafter, the prices are subject to an increase or decrease in accordance with the provisions of this clause.

The prices shall be adjusted on the basis of the originally published Producer Price Indices (PPIs) specified in this section, published by the US Department of Labor, Bureau of Labor Statistics, using the weighting specified below. Any published figure used that is preliminary will not be updated should a different figure replace it as permanent in the future.

A base index shall be established using the month of November 2021. An adjusted index shall then be established by averaging the six-month period ending two months prior to the first price update date. The adjusted index will then become the base index for the price update period immediately following. Each succeeding six months will follow this format (including any contract extensions or renewals). The average adjusted index is then compared with the base index, and the resulting percentage of increase or decrease shall be applied to the contract prices. Price increases and decreases shall not exceed 5% per adjustment period.

Effective Date for Adjusted Pricing

Base Index Period

Adjustment Index Period

Sept 1, 2022 November 2021 Dec 2021 – May 2022 March 1, 2023 Dec 2021 – May 2022 Jun 2022 – Nov 2022 Sept 1, 2023 Jun 2022 – Nov 2022 Dec 2022 – May 2023

March 1, 2024 Dec 2022 – May 2023 Jun 2023 – Nov 2023 Sept 1, 2024 Jun 2023 – Nov 2023 Dec 2023 – May 2024

March 1, 2025 Dec 2023 – May 2024 Jun 2024 – Nov 2024 Sept 1, 2025 Jun 2024 – Nov 2024 Dec 2024 – May 2025

March 1, 2026 Dec 2024 – May 2025 Jun 2025 – Nov 2025 Sept 1, 2026 Jun 2025 – Nov 2025 Dec 2025 – May 2026

March 1, 2027 Dec 2025 – May 2026 Jun 2026 – Nov 2026

In the event a contract extension is implemented, subsequent price adjustments will follow the format indicated above. OGS will provide an updated table as needed.

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The following US Department of Labor PPIs will be used in determining the price updates that will apply to Contracts awarded under this procurement:

3.5.1 LOT I & LOT II – Traffic Paint (Waterborne—Lead-Free):

Index Name Series ID#

Group: Chemicals and allied products (Not Seasonally Adjusted) Item: Special purpose coatings, incl. marine, industrial & construction coatings

WPU06210301

Industry: General freight trucking, long-distance LTL Product: Primary services PCU484122484122p

90% of the price update of awarded Contract prices will be adjusted according to activity reported by the United States Department of Labor PPI for Special purpose coatings, incl. marine, industrial & construction coatings, Series ID#:

WPU06210301, not seasonally adjusted.

10% of the price update of awarded Contract prices will be adjusted according to activity reported by the US Department of Labor, PPI Industry Data for General Freight Trucking. Series ID#: PCU484122484122p.

3.5.2 LOT III & LOT IV – Glass Spheres for Reflectorized Pavement Marking

(Various Types):

Index Name Series ID#

Industry: Glass product manufacturing made of purchased glass Product: primary products

PCU327215327215p

Group: Fuels and related products and power (Not Seasonally Adjusted) Item: Natural gas

WPU0531

Group: Chemicals and allied products (Not Seasonally Adjusted) Item: Other inorganic chemicals, nec

WPU06130283

Industry: General freight trucking, long-distance LTL (Not Seasonally Adjusted) Product: Primary services

PCU484122484122p

55% of the price update of awarded contract prices will be adjusted according to activity reported by the US Department of Labor, PPI Industry Data for Glass product mfg. made of purchased glass. Series ID#: PCU327215327215P

20% of the price update of awarded contract prices will be adjusted according to activity reported by the US Department of Labor, PPI Commodity Data for Fuels and related products and power-Natural Gas. Series ID#: WPU0531, not seasonally adjusted.

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15% of the price update of awarded contract prices will be adjusted according to activity reported by the US Department of Labor, PPI for the group chemicals and allied products, other inorganic chemicals. Series ID#: WPU06130283, not seasonally adjusted.

10% of the price update of awarded contract prices will be adjusted according to activity reported by the US Department of Labor, PPI Industry Data for General Freight Trucking. Series ID#: PCU484122484122p

Should any referenced PPIs become discontinued during the course of the Contract, they will be replaced by alternative PPIs also published by the US Department of Labor, Bureau of Labor Statistics, and adjustments will be calculated based on the same methodology as outlined above, but with the data from the new replacement index, and adjustments will be calculated based on the latest six months of data available in the month preceding the effective date of the price adjustments.

The Office of General Services, Procurement Services will notify all interested parties of effected price adjustments by way of a Contract update.

3.6 Product Addition and Removal – Traffic Paint (Waterborne – Lead-Free) In order to add new traffic paint product(s), the Contractor must demonstrate that the traffic paint product to be added:

• has been approved by NYSDOT Materials Bureau

• meets the scope as defined in Section 1.5, Overview & Scope

Contractors shall submit their updated traffic paint product information to the OGS Procurement Services pursuant to the requirements of this section for review and written approval prior to issuing to Authorized Users.

Contract documents will be updated to include the new approved traffic paint product(s) upon approval by OGS. Any request for traffic paint product update not received in accordance with this section shall be deemed denied.

The Contractor shall provide OGS with one electronic copy of the updated traffic paint product information. No traffic paint product update will be granted to any Contractor who has outstanding Sales Reports, Proof of Insurance or any other documentation that is required under the resulting contract.

Contractor may request the removal of a traffic paint product at any time.

3.7 Best Pricing Offer

During the Contract term, if the Commissioner becomes aware that the Contractor is selling substantially the same or a smaller quantity of a Product 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, after consultation with the Contractor, may be reduced to a lower price on a prospective basis at the discretion of the Commissioner. The Commissioner reserves the right to request information to verify pricing for the purposes of this clause.

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3.8 Price Structure

If, during the Contract Term, the Contractor is unable or unwilling to meet contractual requirements in whole or in part based on the price structure of the Contract, it shall immediately notify the Office of General Services, Procurement Services in writing. Such notification shall not relieve the Contractor of its responsibilities under the Contract. The State may, but is not required to, consider an equitable adjustment in the Contract terms and/or pricing in the circumstances outlined in Appendix B, Savings/Force Majeure.

Should the Commissioner in his or her sole discretion determine during the Contract Term that (i) the Contract price structure is unworkable, detrimental, or injurious to the State, or

(ii) the Contract price structure results in prices which are unreasonable, excessive, or not truly reflective of current market conditions, and no adjustment in the Contract terms and/or pricing is mutually agreeable, the State may terminate the Contract upon 10 business days written notice mailed to the Contractor.

3.9 Volume Discounts

Bidders may offer additional volume discounts. Volume discounts may be applied per purchase order, cumulatively per customer agency, and cumulatively statewide.

Volume discounts shall be defined and applied as follows:

1. Purchase order volume discounts shall be additional discounts applied to individual purchase orders over a specified dollar amount.

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

3. 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 this contract.

3.10 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).

3.10.1 Traffic Paint (Waterborne—Lead-Free)

Authorized Users should indicate the following information:

• Purchase orders where deferred shipments are requested by the Authorized User shall clearly detail the requirement dates.

• Contractor must promptly inform the buyer of any deferred shipment in which the requested delivery date extends beyond a current pricing period into a new scheduled price update period, so that proper pricing will be applied at the time of invoicing.

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• For non-NYSDOT deferred orders, where the requested shipping dates are in excess of 90 days, a notation of pre-approval by the contractor shall be clearly noted, including date, time, and name of authorizing party. If approval was made in writing, a copy of the memo should be attached.

3.10.2 Glass Spheres for Reflectorized Pavement Marking

Authorized Users should indicate the following information:

• Type and gradation required

• Palletization requirements

• Special Marking requirements

• Instructions and address for submission of SDS

3.11 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.

3.12 Minimum Order

3.12.1 Traffic Paint (Waterborne—Lead Free)

The minimum order for LOTS I & II is 3,000 gallons. This minimum may be achieved through any combination of items (totes, drums, pails) for a single location.

Contractor may elect to honor orders for less than the minimum order. For such orders, at the Contractor’s option and with the agreement of the Authorized User, shipping costs from the Contractor’s address (as stated in bid) may be added to invoice with a copy of the freight bill. Shipping costs are to be prepaid by Contractor and such orders are to be shipped on an FOB destination basis. All such orders must be shipped by the most economical method for the proper delivery of the product unless special instructions are stated on the order by the agency.

3.12.2 Glass Spheres for Reflectorized Pavement Marking

The minimum order for LOTS III & IV is 10,000 lbs net weight and the weight may be assorted among sphere types within the confines of the spheres overall classification.

Orders must be made in net weight as determined to be a multiple of stated package weight. Items designated as available in bags are to be ordered in multiples of 50 pounds. Items designated as available in box containers are to be ordered in multiples of 2,000 pounds.

Contractors may elect to honor orders for less than the minimum order.

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3.13 Minimum Production Batch Size

3.13.1 Traffic Paint (Waterborne—Lead Free)

Minimum production batch size shall be 2,000 gallons for each color of paint. A batch is further defined as appropriate in the quality assurance section located in Attachment – Specifications, Section - Quality Assurance Requirements.

3.14 Invoicing and Payment

Invoicing and payment shall be made in accordance with the terms set forth in Appendix B, Contract Invoicing.

The Contractor is required to provide the Authorized User with one invoice for each Purchase Order at the time of delivery. 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:

• Contractor Name

• Contractor Billing Address

• Contractor Federal ID Number

• NYS Vendor ID Number

• Account Number

• NYS Contract Number

• Name of Authorized User indicated on the Purchase Order

• NYS Agency Unit ID (if applicable)

• Authorized User’s Purchase Order Number

• Order Date

• Invoice Date

• Invoice Number

• Invoice Amount

• Product Descriptions

• Unit Price

• Quantity

• Unit of Measure

• Dates of Service (if applicable)

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/nys-vendors.

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3.15 Product Delivery

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

3.15.1 Traffic Paint (Waterborne—Lead Free)

General Delivery shall be expressed by the average (or usual) number of calendar days required to ship and complete the product delivery after receipt of a purchase order.

The vendor shall be responsible for the delivery of product ordered to any location within New York State. Product will be required as soon as possible and delivery may be considered by an agency issuing a purchase order.

Unless otherwise stated on purchase order, delivery is required within 30 calendar days after contractor's receipt of purchase order. Authorized Users may not without prior written consent of the contractor demand delivery prior to 30 days after Contractor's receipt of said order.

Contract users may request scheduled deferred deliveries. With the exception of NYS Department of Transportation orders, all schedules requiring delivery to be delayed beyond 90 days after Contractor's receipt of order must have the prior approval of the related Contractor and with such allowance noted on the given purchase order. All deferred shipping may be subject to a price update if the requested shipment overlaps scheduled price update periods.

Each individual instance of Contractor's failure to conform to the above delivery requirements plus 10 calendar days (grace period) shall constitute sufficient reason to allow the affected agency to request OGS review to assess the potential for the application of Liquidated Damages. Resulting Contractor(s) are cautioned that repeated failure to deliver within the guaranteed delivery period will be sufficient cause for the OGS Procurement Services to cancel the Contract or any unit portion thereof and authorize open market purchase of applicable requirements charging any increased cost over Contract price to the Contractor's account, without the need to await passage of the stated grace period.

Shipping Dates and Delivery Time Contractor shall provide written acknowledgement of orders within five (5) business days after receipt of order which will include an anticipated shipping date of each order If shipment will not be made within the delivery time, Contractor is required to notify the agency in writing at least two weeks prior to the latest date of the original delivery obligation. This notification must include the reasons for the delay and the latest date the product will be shipped. Notification does not negate Contractor’s responsibility for shipment of product as soon as possible, nor the conditions noted under Invitation for Bids, Section - Liquidated Damages. Should the delay not be acceptable to the Authorized User, appropriate contract default proceedings will be initiated. Failure to supply timely written notification of delay may be cause for default proceedings.

All correspondence on shipping dates and delivery time shall be directed to the ordering entities’ specified contact person.

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Deliveries shall be made inside the yard facility at destinations as indicated on the purchase order. Advance notice of pending shipment shall be issued in writing to the buyer at least 7 days prior to delivery, unless shipment is being made in under one week from receipt of order. If this situation occurs, Contractor shall notify the buyer of the shipment date as soon as it is scheduled.

Actual physical arrival and delivery of material must be scheduled by the carrier, contacting and coordinating with the recipient no more than 48 hours prior to a trucks arrival at the delivery site. Delivery will be scheduled no earlier than 7:00 a.m. or later than 3:00 p.m. and will have a two-hour window of opportunity within those parameters, Tuesday through Thursday, excluding Holidays, or as otherwise agreed to as mutually acceptable between the carrier and recipient. Delivery will only be accepted within the time period scheduled. At the discretion of the Authorized User, shipments arriving outside of the scheduled time frame may be expected to reschedule the shipment (if late) or return at the originally scheduled time (if early). Any and all changes required as a result of such arrivals are at the carrier’s expense.

Delivery Condition Contractor shall make no shipment that exposes the product at any time during transit to conditions detrimental to the product. Product must be delivered strictly in accordance with specifications and shall be "Ready for Use.” In the event that an item is delivered with a deviation or deficiency, Contractor shall correct such deficiencies within four (4) business days of written notification of said deficiency or deviation. Otherwise the State has the option of making the corrections independently at Contractor’s expense and also imposing the Liquidated Damages clause as found herein.

Delivery Certification Contractor shall secure a signed receipt from agency certifying to delivery of product. In the event deficiencies are later noted and a properly signed receipt is not available, Contractor will be responsible.

3.15.2 Glass Spheres for Reflectorized Pavement Marking

General Delivery shall be expressed by the average (or usual) number of calendar days required to ship and complete the product delivery after receipt of a purchase order.

Product will be required as soon as possible and delivery may be considered by an agency issuing a purchase order.

Shipping Dates and Delivery Time Contractor shall provide written acknowledgement of orders within five (5) business days after receipt of order which will include an anticipated shipping date of each order If shipment will not be made within the delivery time, Contractor is required to notify the agency in writing at least two weeks prior to the latest date of the original delivery obligation. This notification must include the reasons for the delay and the latest date the product will be shipped. Should the delay not be acceptable to the Authorized User, appropriate Contract default proceedings will be initiated. Failure to supply timely written notification of delay may be cause for default proceedings.

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All correspondence on shipping dates and delivery time shall be directed to the ordering agency's contact person.

Delivery Conditions Contractor shall be responsible to make no shipment of the product that will be exposed to conditions during transit, detrimental to the product. Product must be delivered strictly in accordance with specifications and shall be "Ready for Use.”

Delivery Certification Contractor shall secure a signed receipt from agency certifying to delivery of product. In the event deficiencies are later noted and a properly signed receipt is not available, Contractor will be responsible.

Certificate of Analysis Contractor is required to submit with each delivery a 'Notarized' and 'Certified' Certificate of Analysis, which will indicate the refractive index, percent roundness and sieve gradation of the delivered materials.

Shipping, Packing, Marking, and Palletization Shipping shall be only by covered trailers in order to maintain sphere dryness. The glass spheres shall be packed either in bags containing 50 lbs. net or cardboard boxes containing 2,000 lbs. net. Contractor shall be responsible for the proper delivery of the glass spheres, in specified containers. The containers shall not affect its contents. Bags or boxes of glass spheres shall not contain foreign contaminants.

If bags are used, they shall be either a standard cemented center seam, plastic lined, burlap bag, or plastic lined paper bags. A bag shall contain 50 lbs. net weight. If required by ordering agency, the bags shall be packed and delivered on disposable pallets, forty (40) bags to a pallet (2,000 lbs.).

If cardboard boxes are used, they should be moisture resistant, multi-wall, five (5) wall box constructed new cardboard containers consisting of a box and a poly-liner to exclude moisture. Boxes must have sufficient integrity to be stackable with visible indication of maximum stacking quantity. Reusable boxes are unacceptable. Cardboard boxes shall be delivered on a skid or pallet. All pallets shall be constructed to allow use of forklifts.

The bags and boxes shall be marked with the name and address of the manufacturer and name and net weight of the material, the glass sphere coating type, the lot and/or batch number, and the date of manufacture (mm / yy).

The ordering agency shall have sufficient justification to reject bags or boxes of glass spheres that are: covered with water, supplied in improper containers, contaminated with foreign materials, or supplied on broken skids or pallets.

Rejected glass spheres shall be replaced within seven (7) calendar days of the date of rejection notice.

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LOT IV: Glass Spheres with Drying Agent The packages shall be marked with the name and address of the manufacturer and name and net weight of the material, the material name, the lot and/or batch number, and the date of manufacture (mm /yy) and be secured on disposable pallets, 40 bags to a pallet (2,000 lbs.). The pallets shall be constructed to allow use of forklifts.

Shipping shall be only by covered trailers in order to maintain product dryness.

The compound shall be packed in bags and Contractor shall be responsible for the proper delivery thereof. The containers shall not affect its contents, nor contain foreign contaminants. Bags shall be either standard cemented center seam, plastic-lined burlap bags, or plastic-lined paper bags. A bag shall contain 50 lbs.

net weight.

The ordering agency shall have sufficient justification to reject bags of compound that are covered with water, supplied in improper containers, contaminated with foreign materials, or supplied on broken skids or pallets. Rejected items shall be replaced within seven (7) calendar days of the date of rejection notice.

3.16 Liquidated Damages

In the event of a delay or default in any delivery for items contracted under Lots I and II, providing such delay or default is not directly attributable to a material fault of the ordering agency, an agency shall be entitled to and shall assess against the vendor as liquidated damages, a sum calculated as follows:

Two-hundred fifty dollars ($250.00) per business day, not as a penalty but as liquidated damages, for each color of paint, to compensate for delay and other losses, detriments and inconveniences attendant upon such delay from the grace period, commencing from the time delivery was due under the Contract. Saturdays, Sundays, and NYS Holidays will be excluded from the computations for the assessment of Liquidated Damages.

A grace period of ten (10) business days commencing on and including the Contract date for delivery, shall be extended to the vendor prior to the assessment of such liquidated damages. Assessment of liquidated damages will then commence on the forty-fifth (45th) calendar day after placement of the purchase order by mail, or 41 calendar days after placement electronically. Notice is hereby given to the vendor that despite the extensions of the grace period herein specified, time shall be and is of the essence in regard to the delivery of these products to the Authorized User.

The actual delivery date of each color will be used in computing the total amount of liquidated damages on a purchase order.