Independent Auditor-RFP w App- 2026.pdf

RFP FOR INDEPENDENT AUDITOR

ERIE COUNTY FISCAL STABILITY AUTHORITY

REQUEST FOR PROPOSALS

I. INTRODUCTION

The ERIE COUNTY FISCAL STABILITY AUTHORITY (the Authority) requests proposals from accounting firms experienced in public finance and New York State public benefit corporation accounting to perform audits of the financial statements of the Authority, as required by Section 3971 of the ERIE COUNTY FISCAL STABILITY AUTHORITY Act, Chapter 182 of the Laws of 2005. The firm selected will also be expected to advise the Authority on an as-needed basis with respect to accounting questions.

II. BACKGROUND

The ERIE COUNTY FISCAL STABILITY AUTHORITY (referred to hereafter as “the Authority”) is a corporate governmental agency and instrumentality of the State of New York constituting a public benefit corporation. The Authority was created by and operates pursuant to the ERIE COUNTY FISCAL STABILITY AUTHORITY Act, Chapter 182 of the Laws of 2005. The Authority has the responsibility under the Act to monitor and oversee the finances of the County of Erie (the “County”), and covered organizations (Erie Community College, Buffalo and Erie County Public Library, and any governmental agency, public authority or public benefit corporation which receives or may receive money from the County) to exercise certain advisory and/or control powers. The Act provides for the Authority to be in effect until a date not later than December 31, 2039.

The Authority is vested with control and advisory authority to oversee the budget, financial and capital plans of the County of Erie and covered organizations (as defined in the Act); to issue bonds or other obligations to achieve budgetary savings through debt restructuring or deficit financing; to finance short-term cash flow or capital needs; and, if necessary, to develop financial plans on behalf of the County if the County is unwilling or unable to take the required steps toward fiscal stability.

Section 3962 of the Authority Act empowers the Authority to issue bonds, notes and other obligations in such principal amounts as it may determine to be necessary to pay any defined financeable costs of the County of Erie and its covered organizations up to an aggregate principal amount of one hundred and seven hundred million dollars ($700,000,000), and to fund reserves to secure such debt. Additionally, the Authority is empowered to refund or advance refund any outstanding debt of the County. The Authority currently expects to have a maximum of three employees and its current annual operating budget authorization is $429,757.

III. PURPOSE AND SCOPE

An examination of the Authority’s financial statements should be made in accordance with generally accepted auditing standards and should include a review and evaluation of the Authority’s system of accounts, accounting procedures and internal controls to determine their adequacy and compliance with applicable provisions of the laws and requirements of New York State. It should also include recommendations for possible improvements and advice to the Authority in accounting matters and records. The Authority’s fiscal year end is December 31.

The selected firm should be available to provide “Standard Annual Audit Services” to the Authority as follows:

a. Consultation with staff regarding accounting issues

b. Annual audited financial statements

c. The preparation of a management letter

d. Audit the Authority’s investment guidelines as required by Part 201 of Title

2 of the Official Compilation Codes, Rules and Regulations of the State of New York.

The selected firm should also be available for additional audit services which cannot reasonably be anticipated by the Authority in advance of the RFP, including but not limited to audit work related to the issuance of debt.

The term of the engagement will be three years reviewable at the conclusion of each year’s audit, beginning with the 2027 fiscal year engagement.

IV. FILING PROCEDURES

A sealed envelope containing five (5) copies of the proposal should be sent to Kenneth Vetter, Executive Director, ECFSA, 295 Main Street Suite 946, Buffalo, NY 14203 by 4:00 p.m. on September 4, 2026. Firms must submit separately bound technical and cost proposals as set forth in Section V of this RFP. One technical and one cost proposal must be marked “ORIGINAL” and contain transmittal letters with the original signature of an official authorized to bind the firm to its provisions. The remaining copies of the proposals may contain a copy of the official’s signature.

The proposals should be directed to Mr. Kenneth Vetter.

The Authority anticipates making a final decision on this matter on or about the fourth week of October 2026.

Written questions concerning this request for proposals must be submitted to Kenneth Vetter, Executive Director of the Authority by August 21, 2026. Questions may be submitted by mail, fax 716-608-2270 or e-mail to Kenneth Vetter at: kenneth.vetter@ecfsa.ny.gov. Any contact with the Authority Board members or staff, other than as explicitly provided in this Request for mailto:kenneth.vetter@ecfsa.ny.gov

Proposals is prohibited.

During the evaluation process, the Authority may require clarifying information from a firm.

The response to a request for clarifying information must be submitted in writing, if required by the Authority, and directed to Mr. Kenneth Vetter

The Authority reserves the right to conduct oral presentations to clarify proposals, which shall be required at the sole discretion of the evaluation panel

All respondents will be notified in writing of the award decision, if any. The successful firm will be sent notification of a conditional award to be issued on or about November 10, 2026. Any award is subject to the successful negotiation of a contract. Failed negotiations could result in an alternate award. Public discussion or news releases relating to this RFP or the resulting agreement are prohibited without prior approval of the Authority.

Summary of Proposal Submission and Evaluation Time Schedule

Request for Proposals Dated August 7, 2026

Written Inquiries Submitted By August 21, 2026

Notification of Interest (optional) By August 21, 2026

Proposal Due Date September 4, 2026

Oral Presentations (if needed) by .................... Date to be determined

Selected Contractor Notified on or about .......... Fourth Week of October 2026

Contract Executed on or about ........................ Date to be determined

A contract defining all responsibilities of the Contractor and the Authority will be developed by the Authority. Upon agreement by the bidder and the Authority to the provisions of the contract, it will be submitted for approval of the Authority Board of Directors. This RFP and the successful firm's proposals will be part of the final contract, which should be executed at a date to be determined.

The Authority is not liable for any cost incurred by any firm prior to the approval of an executed contract. Accordingly, no cost will be incurred by the Authority for any firm’s participation in any procurement activities.

V. ELEMENTS OF THE PROPOSAL

Interested firms must submit separately written technical and cost proposals. A checklist is included as Attachment 2 for your convenience in preparing the proposal.

TECHNICAL PROPOSAL:

Interested firms are requested to provide a written technical proposal of no more than 10 single-sided pages (excluding resumes, list of references, and required attachments and appendices) and should be prepared on 8 ½ x 11-inch paper using at least 12-point type with standard margins.

A. The technical proposal must contain a transmittal letter signed by an official authorized to bind the firm to its provisions and include the following:

1) The name of the individual responsible for negotiating any contract that might result from this procurement and that individual’s mailing address, e-mail address, telephone number, and fax number.

2) A statement that the firm’s technical and cost proposals are valid for at least 120 days.

B. The history and qualifications of the firm to serve as an independent auditor for a new NYS public benefit corporation and other NYS entities.

C. A brief description of the firm’s public audit division and the names of senior and associate staff members who would have direct day-to-day participation in this engagement indicating their experience and familiarity with the examination of State public authorities and municipalities. Resumes should be included in an appendix. Please specify the name of the individual accountable for the project.

D. Three references, one of each, from a municipality, a public authority and a State entity with which individuals to be assigned to this audit have worked and the name and contact number of the audit responsible person in each organization.

E. A description of your proposed organization and management of this engagement, including a proposed schedule, work plan and allocation of hours for each year of the audit period, including critical dates and time estimates, and your firm’s approach to providing successful and timely audit services to the Authority, particularly those described in section III above.

F. A complete set of Appendices (A through A-7, B and C) will be included as part of the contract to this engagement. The Appendices should be completed, signed and executed as required on the various forms.

G. A description of any prior, pending or threatened litigation or administrative or State ethics board or similar body proceedings to which your firm or its senior officers are a party, and indicate the extent to which such would either materially impair the firm’s ability to perform the services enumerated herein and for which this RFP is issued or, if decided in an adverse manner, would materially adversely affect the financial condition of the firm. The nature of the lawsuits and their outcome, if litigation is complete, should be described briefly.

H. A written certification from your firm that its representation of the Authority as Independent

Auditor will not create any ongoing conflict of interest involving your firm. If your firm believes that any potential for a conflict may arise, the nature of the conflict should be described.

I. A letter identifying information in the proposal that the firm believes should be protected from disclosure under New York State’s Freedom of Information Law (FOIL). The purpose of the FOIL, which is contained in Public Officers Law, Article 6, sections 84-90, is to promote the public’s right to know the process of governmental decision-making and to grant maximum public access to governmental records.

a. After formal contract approval by the Authority, the proposal of the successful bidder and the proposals of unsuccessful bidders are subject to disclosure under FOIL.

However, pursuant to §87(2)(d) of FOIL, a State agency may deny access to those portions of proposals or portions of a successful bidder’s contract which are “trade secrets” or submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise. Please note that all information which the firm may claim as proprietary, copyrighted or rights reserved is not necessarily protected from disclosure under FOIL.

b. If there is information in the firm’s proposal that the firm claims meet the definition set forth above, the firm should inform the Authority in a letter accompanying its proposal. The letter should contain the following information:

1. Identification by page, line or other appropriate designation of that specific portion of the proposal which contains the information; and

2. A detailed justification of why disclosure of such information to the public under FOIL would cause substantial injury to the firm’s competitive position. Please note that the courts have ruled that a mere conclusory statement that certain information is a trade secret and disclosure would cause injury to the firm’s competitive position is insufficient to protect it from disclosure under FOIL.

c. Failure to identify the information under the above section may result in such information being disclosed if a request is received.

J. New York State Executive Order Number 127 provides for increased disclosure in the public procurement process through identification of persons or organizations whose function is to influence procurement contracts. You may access the Order and accompanying guidance at:

http://www.ogs.ny.us/BU/PC/

Under the Order, the Authority is obligated to obtain identifying information on every person or organization retained, employed or designated by or on behalf of the contractor to attempt to influence the procurement process, and whether such person or organization has a financial interest in the procurement. A “Contractor Disclosure of Contacts Form” is included in Appendix A-7 as Form 1 and must be submitted with your proposal. Failure to submit the form shall result in a determination of nonresponsiveness and disqualification of the proposal. You must update the form, as necessary, throughout the procurement period.

In addition, the Authority is obligated to make a determination of responsibility of the proposed awardee for a procurement contract. A “Contractor Disclosure of Prior Non- Responsibility Determinations” form is included in Appendix A-7 as Form 2 and must be submitted with your proposal.

Bidders must certify that all information provided to the Authority with respect to the Order is complete, true and accurate. A “Contractor Certification of Compliance with Executive Order No. 127” form is included in Appendix A-7 as Form 3 and must be submitted with your proposal.

COST PROPOSAL:

The cost proposal must contain a transmittal letter signed by an official authorized to bind the firm to its provisions

Proposers must submit a separate cost proposal for Standard Auditing Services, which contains all pricing and staffing information relative to fulfilling the scope of services described in Section III of this RFP. This portion of the cost proposals must follow the format of the “Fee Schedule” annexed hereto as Attachments 3a and 3b.

For Additional Audit Services, as contemplated in Section III, proposers must submit a separate schedule of the hourly rates for each title/position expected to perform such services.

This portion of the cost proposal must follow the format of the Fee Schedule annexed hereto as Attachment 3c.

While the actual titles submitted may vary depending on the specific nomenclature of each firm, the listing must use standard staff classifications comparable to the titles listed below, if applicable:

- Partners

- Managers

- Supervisors

- Senior Accountants

- Staff Accountants

- Others http://www.ogs.ny.us/BU/PC/

Out-of-pocket expenses should not be separately categorized and will be reimbursed only in accordance with an agreement with the Authority to be included in the final contract.

State whether the Authority is being charged the lowest rate charged by your firm for its municipal clients.

VI. SELECTION CRITERIA

The contract award will be determined on a “best value” basis, defined in New York State finance law as “the offerer which optimizes quality, cost and efficiency, among responsive and responsible bidders.” In making this determination, the cost and technical proposals will be separately evaluated and scored based on the criteria described in this section of the RFP.

A selection committee consisting of Authority staff, with the possible additional review by certain Authority Directors will evaluate the proposals. This selection committee will make its recommendations to the Authority Board for final approval.

Proposals will be assessed based upon the evaluation criteria indicated below. The cost and technical proposals will be separately evaluated based on the criteria described in this section.

The Authority reserves the right to reject any or all submitted proposals. Additionally, the

Authority has the right to request best and final offers in the event of a minor change to the scope of the engagement.

Evaluation of Technical Proposals

The technical proposals will be reviewed and evaluated based on the following elements:

A. The qualifications and experience of the firm

B. Qualification of personnel involved in the engagement

C. Soundness, practicality and thoroughness of the proposed approach to the project, including work schedules, task sequences and allocation of staff, including evidence of satisfactory, timely performance on similar projects

D. Overall quality of the proposal

E. MWBE status and/or participation

Information obtained through reference checks, which will be used to verify experience and qualifications; and

Oral presentations deemed necessary by the Authority to clarify the firm’s technical proposal.

Evaluation of Cost Proposals

The cost proposals will be evaluated based on the firms’ proposed annual fee over the three (3) years of the Standard Audit Services, combined with the fee structure for Additional Audit Services. Cost proposals will be rated in proportion to the lowest bid.

This is a best-value procurement and the contract award will be made to the firm with the highest evaluation.

VII. CONTRACTUAL REQUIREMENTS

The proposal submitted by the successful firm will serve as the basis for and will be included as an appendix to the contract with the Authority.

Important information affecting proposers which should be carefully examined is contained in the following appendices:

- Executed copies of the "Proposer Guarantees" (Appendix B) and "Proposer

Warranties" (Appendix C) must be submitted with the firm's proposal.

- The "Standard Clauses for New York State Contracts" (Appendix A) will be included as an appendix to the contract to be entered between the selected firm and the Authority.

- The Non-Collusive Bidding Certification (Appendix A-2) required by Section 139-D of the State Finance Law must be completed, signed and submitted with the proposal.

- Clauses stating compliance with the Omnibus Procurement Act of 1992 (Appendix A-3) and MacBride Fair Employment Principles (Appendix A-4) must be signed and submitted with the proposal.

- EEO Standard Language in Appendix A-5 should be reviewed and the proposer should be prepared to submit an EEO Policy Statement upon request.

- Appendix A-6 concerning opportunity for minority- and women-owned business enterprises should be reviewed, and the proposer should be prepared to complete the Work Force Employment Utilization Report if selected.

- Failure to submit any of the forms that are required with the proposal will disqualify the firm from consideration.

In addition to the provisions in Appendix A, the contracting firm will be bound by the following general requirements:

A. Relationship between the Authority and Contractor

The relationship of the selected firm to the Authority shall be that of an independent contractor. In accordance with such status as an independent contractor, the Contractor covenants and agrees to act consistent with such status: to neither hold itself out as, nor claim to be, an officer or employee of the Authority by reason hereof; and not to, by reason hereof, make any claim, demand, or application to or for any right or privilege applicable to an officer or employee of the Authority, including but not limited to worker's compensation coverage, unemployment insurance benefits, social security coverage, or retirement membership credit.

B. Freedom to Undertake

With respect to any contract or employment as an independent contractor of the Authority, or any New York public corporation as defined in Section 66 of the NYS General Construction Law or any agency or department of either, pursuant to the terms of any other present or future agreement, expressed, implied, entered into with such entity, if any, the firm by submitting a proposal thereby covenants and represents that there is no conflict as to hours required to be worked or duties required to be performed pursuant to the terms of this proposal and any aforesaid contract or employment.

C. Provision for Equal Employment Opportunity

The Authority recognizes the need to take affirmative action to ensure that minority-and women-owned business enterprises and minority and women employees and principals are given the opportunity to participate in the performance of contracts with the Authority. This opportunity for full participation in our free enterprise system by persons traditionally, socially and economically disadvantaged is essential to obtain social and economic equality.

Accordingly, it is the policy of the Authority to foster and promote the participation of such individuals and business firms in contracts with this office.

The Contractor selected for this undertaking will be asked to acknowledge its understanding and support for the social policy herein stated and will be expected to exert a good faith effort to solicit the participation to the extent feasible of such individuals and firms as partners, joint venturers, subcontractors, suppliers and employees and to report the results of such efforts to the Authority.

The Contractor selected for this undertaking shall comply with the requirements of Article 15-A of the Executive Law and shall undertake or continue existing programs of affirmative action to ensure that minority group members and women are afforded equal employment opportunities without discrimination. Appendices A-5 and A-6 contain the applicable Equal Opportunity language, as well as the required reporting forms.

D. Workpaper Retention and Availability

1. The Authority or its authorized representative, and other agencies authorized by State law, shall have access to and the right to examine the books, documents, papers, or records of the Contractor relating to the contract during the progress of the services to be performed by the Contractor and for a period of three (3) years after final payment under the contract. The Contractor will make all records available to the Authority.

2. The workpapers prepared by the Contractor during this review are its own property, although copies thereof and access to them will be made available to the Authority upon request. The Contractor shall cooperate with other independent auditors conducting audits of the Authority records and with any subsequent auditors for the examination of the Authority’s financial statements upon the specific request of the Authority for a period of three (3) years after final payment under the contract.

3. The firm selected agrees to make personnel available to furnish adequate explanation of all data, materials, and working papers developed during the project at any reasonable time during the period of three (3) years following the date of the final report delivered to the Authority. Reasonable time is defined to be during normal business hours and should not exceed 40 hours per week.

E. Reports and Findings

Any and all reports and findings rendered to the Authority by the Contractor shall be the exclusive property of the Authority and subject to its exclusive use and control.

The Contractor herewith waives any and all rights to such reports and findings and the control thereof.

The Contractor shall take all appropriate action to protect the confidentiality of all information supplied to it or developed by it during the course of its performance under the terms of the contract.

F. Termination

1. The performance of work under this contract may be terminated in whole or in part by the Authority whenever, for any reason, the Authority shall determine that such termination is in its best interest. Termination of work herewith shall be affected by delivery to the Contractor of a Notice of Termination specifying the extent to which performance or work under the contract is terminated and the date upon which such termination becomes effective.

The Authority may terminate the contract in the event that the contractor’s certification of compliance with Executive Order No. 127 is found to be intentionally false or incomplete.

2. After receipt of the Notice of Termination, the Contractor shall exercise all reasonable diligence to accomplish the cancellation or diversion of its outstanding commitments covering personal services and extending beyond the date of such termination to the extent that they relate to the performance of any work terminated by the Notice.

3. The Contractor shall submit its termination claim to the Authority promptly after receipt of a Notice of Termination, but in no event later than 30 days from the effective date thereof, unless one or more extensions in writing are granted by the Authority upon written request of the Contractor within such 30-day period or authorized extension thereof. Upon failure of the Contractor to submit its termination claim within the time allowed, the Authority may determine, on the basis of information available to it, the amount, if any, due to the Contractor by reason of termination and shall thereupon pay to the Contractor the amount so determined.

4. If the termination is brought about as a result of unsatisfactory performance on the part of the Contractor, the value of the work performed by the Contractor prior to termination shall be established by the Authority.

5. The Contractor agrees to transfer title to the Authority and deliver in the manner, at the time, and to the extent, if any, directed by the Authority, such information and items which, if the contract had been completed, it would have been required to be furnished to the Authority.

G. Contractor's Liability

The Contractor shall be liable for and shall indemnify the Authority for all damage to life and property due to the negligent acts, errors or omissions of the Contractor, its subcontractors, agents or employees, in the performance of its services under the contract. Further, it is expressly understood that the Contractor shall be liable for the claims, suits, actions, damages and costs of every name and description resulting from the negligent performance of the services of the Contractor under the contract, and such indemnity shall not be limited by reasons of enumeration of any insurance coverage herein provided. Negligent performance of service, within the meaning of this Article, shall include, in addition to negligence founded upon tort, negligence based upon the Contractor's failure to meet professional standards which result in obvious or patent errors in the progression of its work. Nothing in the contract shall create or give to the third parties any claim or right of action against the Contractor or the Authority beyond such as may legally exist irrespective of this Article or Agreement.

H. Disputes and Dissatisfaction

In the event the Authority or the Contractor is dissatisfied with the other's performance under the contract, either party must so notify the other in writing. The other party must then make every good faith effort to solve the problem or settle the dispute amicably, including meeting with a party's representatives to diligently attempt to reach a satisfactory result.

I. Notices

All notices, demands, instructions, claims, approvals and disapprovals are required to be given to either party at the addresses hereinbefore set forth or to such other address as either party shall have notified the other, in writing, to be the proper mailing address.

J. Waiver, Modification, Execution, or Severability

1. No waiver or modification of the contract or any covenant, condition, or limitation herein contained shall be valid unless in writing and executed by the parties hereto, and no evidence of any waiver or modification shall be offered or received in evidence in any action between the parties hereto arising out of or affecting the contract, or the rights or obligations of any party hereunder, unless such waiver of modification is in writing, duly executed as aforesaid, and the parties further agree that the provisions of the paragraph may not be waived except as herein set forth.

2. The written contract shall contain the sole and entire agreement between the parties and shall supersede any and all other agreements between the parties.

3. The parties hereto shall execute such other further documents as may be required to effectuate the terms of the contract.

4. The terms, clauses and provisions of the contract are intended to be severable, and the unconstitutionality, illegality or unconscionableness of any term, clause or provision shall in no way affect the enforcement of any other term, clause or provision.

K. Disclosure of Prior or Pending Lawsuits.

Disclosure of any prior or pending lawsuit(s) or litigation between the bidder and any New York State department, agency, board, or commission is required. The nature of the lawsuit and its outcome, if litigation is complete, should be described briefly.

L. Objections

Objections to the requirements stated in this RFP must be submitted in writing or by e-mail by August 21, 2026. Objections submitted after that date will not be considered. Objections should refer to the appropriate section, provide a rationale, and, where feasible, provide alternate language or options for consideration by the Authority. The Authority reserves the right to reject objections or to alter the terms of the RFP accordingly. All firms that have filed a notification of interest will be notified of changes, if any, by.

DATED: August 7, 2026

Attachment 1

NOTICE OF INTEREST

Mr. Kenneth Vetter, Executive Director Erie County Fiscal Stability Authority 295 Main Street, Suite 946 Buffalo NY, 14203

Fax: (716) 608-2270

Name of Firm: _________________________________________________________

OUR FIRM INTENDS TO SUBMIT A PROPOSAL for Independent Auditor set forth in the Request for

Proposals dated

Please keep our name and address on your mailing list for future procurements.

Signature of Official: _________________________________________________________

Name (typed): _________________________________________________________

Title: _________________________________________________________

Date: _________________________________________________________

Contact Person: Name _________________________________________________________

Title ___________________________________________________

Phone ___________________________________________________

Attachment 2

ERIE COUNTY FISCAL STABILITY AUTHORITY

INDEPENDENT AUDITOR

PROPOSAL CHECKLIST

NOTICE OF INTEREST - Attachment 1 (optional and submitted separately)

TECHNICAL PROPOSAL

Transmittal letter State understanding of work/commitment to perform within time frames

Name, title, address, phone and fax number, and e-mail address of contact person

Title page

RFP subject Firm name Name, title, address, phone and fax number, and e-mail address of contact person Date of proposal

Table of contents Identify material by section and page number

Items noted in Section V, subsections B through J Five (5) Copies of the Technical Volume

SEALED DOLLAR COST BID

Items Noted in Section V Transmittal letter

Estimates for 2027, 2028 and 2029 Engagements (Attachment 4) Billing structure for other expenses

Five (5) copies of the Dollar Cost Bid (in a separate, sealed envelope).

ATTACHMENT 3 – COST PROPOSAL

2027 ERIE COUNTY FISCAL STABILITY AUTHORITY INDEPENDENT AUDITOR

COST EVALUATION

SCHEDULE OF PROFESSIONAL FEES AND EXPENSES

Partner

Manager

Supervisor

Sr. Accountant

Staff Accountant

Other

Rate

Subtotal

2028 ERIE COUNTY FISCAL STABILITY AUTHORITY INDEPENDENT AUDITOR

2029 ERIE COUNTY FISCAL STABILITY AUTHORITY INDEPENDENT AUDITOR

ATTACHMENT 3 – COST PROPOSAL

Note: *Fees for the “Other” titles will not be used as part of the cost evaluation. The cost evaluation will be scored as follows; each firm will be scored both on the basis of the fees for the individual titles and the fees for the blended rate, with the lowest score used as a rating for the firm.

Provide details on the firm’s billing structure regarding non-lawyer expenses, specifically paralegal charges, word processing charges, mark-ups and copying, telefax and related costs, and rules for taxi utilization. These costs are for informational purposes only and will not be included as part of the cost evaluation. Out-of-pocket expenses for staff travel, lodging and subsistence should be estimated at the per diem rates granted by the State for its Management/Confidential employees, which can be found on the U.S. General Services Administration’s website at www.gsa.gov/portal/category/100000. Click on Per Diem Rates, 2026 Domestic Rates, and New York State.

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Appendix A: STANDARD CLAUSES FOR NYS CONTRACTS

The parties to the attached contract, license, lease, amendment or other agreement of any kind (hereinafter, "the contract" or "this contract") agree to be bound by the following clauses which are hereby made a part of the contract (the word "Contractor" herein refers to any party other than the State, whether a contractor, licenser, licensee, lessor, lessee or any other party):

1. EXECUTORY CLAUSE. In accordance with Section 41 of the State Finance Law, the State shall have no liability under this contract to the Contractor or to anyone else beyond funds appropriated and available for this contract.

2. NON-ASSIGNMENT CLAUSE. In accordance with Section 138 of the State Finance Law, this contract may not be assigned by the Contractor or its right, title or interest therein assigned, transferred, conveyed, sublet or otherwise disposed of without the previous consent, in writing, of the State and any attempts to assign the contract without the State's written consent are null and void. The Contractor may, however, assign its right to receive payment without the State's prior written consent unless this contract concerns Certificates of Participation pursuant to Article 5-A of the State Finance Law.

3. COMPTROLLER’S APPROVAL. In accordance with Section 112 of the State Finance Law (or, if this contract is with the State University or City University of New York, Section 355 or Section 6218 of the Education Law), if this contract exceeds $15,000 (or the minimum thresholds agreed to by the Office of the State Comptroller for certain S.U.N.Y. and C.U.N.Y. contracts), or if this is an amendment for any amount to a contract which, as so amended, exceeds said statutory amount, or if, by this contract, the State agrees to give something other than money when the value or reasonably estimated value of such consideration exceeds $10,000, it shall not be valid, effective or binding upon the State until it has been approved by the State Comptroller and filed in his office. Comptroller's approval of contracts let by the Office of General Services is required when such contracts exceed $30,000 (State Finance Law Section 163.6.a).

4. WORKERS' COMPENSATION BENEFITS. In accordance with Section 142 of the State Finance Law, this contract shall be void and of no force and effect unless the Contractor shall provide and maintain coverage during the life of this contract for the benefit of such employees as are required to be covered by the provisions of the Workers' Compensation Law.

5. NON-DISCRIMINATION REQUIREMENTS. To the extent required by Article 15 of the Executive Law (also known as the Human Rights Law) and all other State and Federal statutory and constitutional non-discrimination provisions, the Contractor will not discriminate against any employee or applicant for employment because of race, creed, color, sex, national origin, sexual orientation, age, disability, genetic predisposition or carrier status, or marital status. Furthermore, in accordance with Section 220-e of the Labor Law, if this is a contract for the construction, alteration or repair of any public building or public work or for the manufacture, sale or distribution of materials, equipment or supplies, and to the extent that this contract shall be performed within the State of New York, Contractor agrees that neither it nor its subcontractors shall, by reason of race, creed, color, disability, sex, or national origin: (a) discriminate in hiring against any New York State citizen who is qualified and available to perform the work; or (b) discriminate against or intimidate any employee hired for the performance of work under this contract. If this is a building service contract as defined in Section 230 of the Labor Law, then, in accordance with Section 239 thereof, Contractor agrees that neither it nor its subcontractors shall by reason of race, creed, color, national origin, age, sex or disability: (a) discriminate in hiring against any New York State citizen who is qualified and available to perform the work; or (b) discriminate against or intimidate any employee hired for the performance of work under this contract. Contractor is subject to fines of $50.00 per person per day for any violation of Section 220-e or Section 239 as well as possible termination of this contract and forfeiture of all moneys due hereunder for a second or subsequent violation.

6. WAGE AND HOURS PROVISIONS. If this is a public work contract covered by Article 8 of the Labor Law or a building service contract covered by Article 9 thereof, neither Contractor's employees nor the employees of its subcontractors may be required or permitted to work more than the number of hours or days stated in said statutes, except as otherwise provided in the Labor Law and as set forth in prevailing wage and supplement

-19-schedules issued by the State Labor Department. Furthermore, Contractor and its subcontractors must pay at least the prevailing wage rate and pay or provide the prevailing supplements, including the premium rates for overtime pay, as determined by the State Labor Department in accordance with the Labor Law.

7. NON-COLLUSIVE BIDDING CERTIFICATION. In accordance with Section 139-d of the State Finance Law, if this contract was awarded based upon the submission of bids, Contractor affirms, under penalty of perjury, that its bid was arrived at independently and without collusion aimed at restricting competition. Contractor further affirms that, at the time Contractor submitted its bid, an authorized and responsible person executed and delivered to the State a non-collusive bidding certification on Contractor's behalf.

8. INTERNATIONAL BOYCOTT PROHIBITION. In accordance with Section 220-f of the Labor Law and Section 139-h of the State Finance Law, if this contract exceeds $5,000, the Contractor agrees, as a material condition of the contract, that neither the Contractor nor any substantially owned or affiliated person, firm, partnership or corporation has participated, is participating, or shall participate in an international boycott in violation of the federal Export Administration Act of 1979 (50 USC App. Sections 2401 et seq.) or regulations thereunder. If such Contractor, or any of the aforesaid affiliates of Contractor, is convicted or is otherwise found to have violated said laws or regulations upon the final determination of the United States Commerce Department or any other appropriate agency of the United States subsequent to the contract's execution, such contract, amendment or modification thereto shall be rendered forfeit and void. The Contractor shall so notify the State Comptroller within five (5) business days of such conviction, determination or disposition of appeal (2NYCRR 105.4).

9. SET-OFF RIGHTS. The State shall have all of its common law, equitable and statutory rights of set-off.

These rights shall include, but not be limited to, the State's option to withhold for the purposes of set-off any moneys due to the Contractor under this contract up to any amounts due and owing to the State with regard to this contract, any other contract with any State department or agency, including any contract for a term commencing prior to the term of this contract, plus any amounts due and owing to the State for any other reason including, without limitation, tax delinquencies, fee delinquencies or monetary penalties relative thereto. The State shall exercise its set-off rights in accordance with normal State practices including, in cases of set-off pursuant to an audit, the finalization of such audit by the State agency, its representatives, or the State Comptroller.

10. RECORDS. The Contractor shall establish and maintain complete and accurate books, records, documents, accounts and other evidence directly pertinent to performance under this contract (hereinafter, collectively, "the Records"). The Records must be kept for the balance of the calendar year in which they were made and for six

(6) additional years thereafter. The State Comptroller, the Attorney General and any other person or entity authorized to conduct an examination, as well as the agency or agencies involved in this contract, shall have access to the Records during normal business hours at an office of the Contractor within the State of New York or, if no such office is available, at a mutually agreeable and reasonable venue within the State, for the term specified above for the purposes of inspection, auditing and copying. The State shall take reasonable steps to protect from public disclosure any of the Records which are exempt from disclosure under Section 87 of the Public Officers Law (the "Statute") provided that: (i) the Contractor shall timely inform an appropriate State official, in writing, that said records should not be disclosed; and (ii) said records shall be sufficiently identified;

and (iii) designation of said records as exempt under the Statute is reasonable. Nothing contained herein shall diminish, or in any way adversely affect, the State's right to discovery in any pending or future litigation.

11. IDENTIFYING INFORMATION AND PRIVACY NOTIFICATION. (a) FEDERAL EMPLOYER IDENTIFICATION NUMBER and/or FEDERAL SOCIAL SECURITY NUMBER. All invoices or New York State standard vouchers submitted for payment for the sale of goods or services or the lease of real or personal property to a New York State agency must include the payee's identification number, i.e., the seller's or lessor's identification number. The number is either the payee's Federal employer identification number or Federal social security number, or both such numbers when the payee has both such numbers. Failure to include this number or numbers may delay payment. Where the payee does not have such number or numbers, the payee, on its invoice or New York State standard voucher, must give the reason or reasons why the payee does not have such number or numbers.

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(b) PRIVACY NOTIFICATION. (1) The authority to request the above personal information from a seller of goods or services or a lessor of real or personal property, and the authority to maintain such information, is found in Section 5 of the State Tax Law. Disclosure of this information by the seller or lessor to the State is mandatory.

The principal purpose for which the information is collected is to enable the State to identify individuals, businesses and others who have been delinquent in filing tax returns or may have understated their tax liabilities and to generally identify persons affected by the taxes administered by the Commissioner of Taxation and Finance. The information will be used for tax administration purposes and for any other purpose authorized by law.

(2) The personal information is requested by the purchasing unit of the agency contracting to purchase the goods or services or lease the real or personal property covered by this contract or lease. The information is maintained in New York State's Central Accounting System by the Director of Accounting Operations, Office of the State Comptroller, 110 State Street, Albany, New York 12236.

12. EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITIES AND WOMEN. In accordance with Section 312 of the Executive Law, if this contract is: (i) a written agreement or purchase order instrument, providing for a total expenditure in excess of $25,000.00, whereby a contracting agency is committed to expend or does expend funds in return for labor, services, supplies, equipment, materials or any combination of the foregoing, to be performed for, or rendered or furnished to the contracting agency; or (ii) a written agreement in excess of $100,000.00 whereby a contracting agency is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon; or

(iii) a written agreement in excess of $100,000.00 whereby the owner of a State assisted housing project is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon for such project, then:

(a) The Contractor will not discriminate against employees or applicants for employment because of race, creed, color, national origin, sex, age, disability or marital status, and will undertake or continue existing programs of affirmative action to ensure that minority group members and women are afforded equal employment opportunities without discrimination. Affirmative action shall mean recruitment, employment, job assignment, promotion, upgradings, demotion, transfer, layoff, or termination and rates of pay or other forms of compensation;

(b) at the request of the contracting agency, the Contractor shall request each employment agency, labor union, or authorized representative of workers with which it has a collective bargaining or other agreement or understanding, to furnish a written statement that such employment agency, labor union or representative will not discriminate on the basis of race, creed, color, national origin, sex, age, disability or marital status and that such union or representative will affirmatively cooperate in the implementation of the contractor's obligations herein;

and

(c) the Contractor shall state, in all solicitations or advertisements for employees, that, in the performance of the State contract, all qualified applicants will be afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability or marital status.

Contractor will include the provisions of "a", "b", and "c" above, in every subcontract over $25,000.00 for the construction, demolition, replacement, major repair, renovation, planning or design of real property and improvements thereon (the "Work") except where the Work is for the beneficial use of the Contractor. Section 312 does not apply to: (i) work, goods or services unrelated to this contract; or (ii) employment outside New York State; or (iii) banking services, insurance policies or the sale of securities. The State shall consider compliance by a contractor or subcontractor with the requirements of any federal law concerning equal employment opportunity which effectuates the purpose of this section. The contracting agency shall determine whether the imposition of the requirements of the provisions hereof duplicate or conflict with any such federal law and if such duplication or conflict exists, the contracting agency shall waive the applicability of Section 312 to the extent of such duplication or conflict. Contractor will comply with all duly promulgated and lawful rules and regulations of the Governor's Office of Minority and Women's Business Development pertaining hereto.

13. CONFLICTING TERMS. In the event of a conflict between the terms of the contract (including any and all

-21-attachments thereto and amendments thereof) and the terms of this Appendix A, the terms of this Appendix A shall control.

14. GOVERNING LAW. This contract shall be governed by the laws of the State of New York except where the Federal supremacy clause requires otherwise.

15. LATE PAYMENT. Timeliness of payment and any interest to be paid to Contractor for late payment shall be governed by Article 11-A of the State Finance Law to the extent required by law.

16. NO ARBITRATION. Disputes involving this contract, including the breach or alleged breach thereof, may not be submitted to binding arbitration (except where statutorily authorized), but must, instead, be heard in a court of competent jurisdiction of the State of New York.

17. SERVICE OF PROCESS. In addition to the methods of service allowed by the State Civil Practice Law & Rules ("CPLR"), Contractor hereby consents to service of process upon it by registered or certified mail, return receipt requested. Service hereunder shall be complete upon Contractor's actual receipt of process or upon the State's receipt of the return thereof by the United States Postal Service as refused or undeliverable. Contractor must promptly notify the State, in writing, of each and every change of address to which service of process can be made. Service by the State to the last known address shall be sufficient. Contractor will have thirty (30) calendar days after service hereunder is complete in which to respond.

18. PROHIBITION ON PURCHASE OF TROPICAL HARDWOODS. The Contractor certifies and warrants that all wood products to be used under this contract award will be in accordance with, but not limited to, the specifications and provisions of State Finance Law §165. (Use of Tropical Hardwoods) which prohibits purchase and use of tropical hardwoods, unless specifically exempted, by the State or any governmental agency or political subdivision or public benefit corporation. Qualification for an exemption under this law will be the responsibility of the contractor to establish to meet with the approval of the State.

In addition, when any portion of this contract involving the use of woods, whether supply or installation, is to be performed by any subcontractor, the prime Contractor will indicate and certify in the submitted bid proposal that the subcontractor has been informed and is in compliance with specifications and provisions regarding use of tropical hardwoods as detailed in §165 State Finance Law.