HomeMy WebLinkAboutAgrmt. No. PA65207AGREEMENT
No. PS65207
by and between
NEW YORK STATE
OFFICE OF GENERAL SERVICES
and
The Remi Group, LLC
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STATE OF NEW YORK
PROCUREMENT SERVICES GROUP
OFFICE OF GENERAL SERVICES
AGREEMENT FOR
EQUIPMENT MAINTENANCE PROGRAM
WITH
The Remi Group, LLC
THIS AGREEMENT, made this _ day of , 2010 by and between the People of the
State of New York, acting by and through Carla Chiaro, acting Commissioner of General Services,
whose office is on the 41 st Floor, Corning Tower Building, the Governor Nelson A. Rockefeller
Empire State Plaza, Albany, New York 12242 (hereinafter "OGS" or "State"), and The Remi
Group, LLC (hereinafter "Remi" or "Contractor"), with an office at 11325 N. Community House
Rd, Suite 300, Charlotte, NC 28277.
WITNESSETH:
WHEREAS, OGS issued a Request for Proposal 21988-PF (Bid Opening: April 1, 2010), and Bid
Solicitation Update(s) thereto, to solicit qualified proposers to provide services related to the
operation and maintenance of an Equipment Maintenance Program for the State of New York for
State agencies, departments, NYS public authorities and public benefit corporations, and all other
entities authorized pursuant to Article 11 of the State Finance Law to use OGS' statewide contracts
(hereinafter "Agencies"), and
WHEREAS, OGS has determined, after having solicited proposals from proposers willing to
supply these services, that the Contractor submitted the proposal affording the State the best value
for such services and that the Contractor possesses the necessary capacity, experience and expertise
for provision of the needed Equipment Maintenance Program, and that Contractor is ready, willing
and able to perform such services on the terms hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties do
hereby agree as follows:
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1. CONSIDERATION
1A. Contractor shall only be compensated for each Equipment Maintenance Service Agreement it
enters into pursuant hereto, with there being no guarantee that it will receive any business
hereunder. The compensation for all Equipment Maintenance Service Agreements shall be as
agreed to between the Contractor and the user Agency, but in all cases shall be at least twenty six
and one-half percent (26. 5%) lower than previous vendor maintenance contracts or, if such
contracts are unavailable, at least twenty six and one-half percent (26. 5%) lower than the then
prevailing market cost of comparable vendor maintenance coverage with the same level of service.
1B. Contractor will not receive any additional compensation for any consultative services
specifically requested in writing by OGS or any user Agency during this Agreement.
1C. Payments shall be made in accordance with to the provisions of the RFP attached hereto.
2. TERM This Agreement shall commence on approval by the State Comptroller and shall be in
effect for five (5) years from the commencement date of contract. Thereafter, the State will have
the option to extend the term of the Contract for up to an additional five (5) years or any part
thereof. Any renewal hereof shall be effectuated by written amendment hereto executed by both
parties and approved by the State Comptroller. The rate of consideration to be paid during any
such renewal period(s) shall remain fixed at least 26. 5% less than previous vendor maintenance
contracts or, if such contracts are unavailable, least 26.5% less than the then prevailing market cost
of comparable vendor maintenance coverage with the same level of service.
3. SERVICES The Contractor agrees to perform this Agreement and to furnish the services,
labor, equipment, facilities and materials required in connection therewith in accordance with all
the specifications, terms, conditions, covenants and representations contained in the Request for
Proposal 21988-PF (Bid Opening: April 1, 2010), and all Bid Solicitation Updates thereto (the
"RFP") and in the Contractor's Response to said Proposal, annexed hereto hereto as Appendices C
and D, respectively, except as such documents have been modified by the terms of this Agreement.
The RFP and Remi's Response to same are hereby incorporated by reference herein and made a
part hereof with the same force and effect as if herein set forth at length herein.
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3A. EQUIPMENT MAINTENANCE SERVICE AGREEMENTS When requested by the
State or any Agency, Contractor shall enter into an Equipment Maintenance Service Agreement, for
the coverage of equipment mutually agreeable to the State or Agency and Contractor, in
substantially the form of the model as set forth in Appendix F hereof, with each user Agency.
Appendix F is hereby incorporated by reference and made a part hereof as fully as if set forth a
Length herein.
4. TERMINATION This Agreement may be terminated in accordance with the termination
provisions set forth in the attached RFP.
5. RECORDS The Contractor will maintain accurate records and accounts of services performed
and moneys expended under this Agreement. Such records will be maintained for six (6) years
following the close of the State fiscal year to which they pertain and will be made available to
representatives of OGS or the New York State Comptroller, as may be necessary for auditing
purposes, upon request.
6. TAXES Purchases by the State of New York are not subject to any sales or federal excise taxes.
Exemption certificates will be furnished upon request. Contractor shall be responsible to determine
the taxable status of purchases made here under by non -State Agencies. There is no exemption
however for Social Security, unemployment insurance and like taxes.
7. INDEPENDENT CONTRACTOR It is understood and agreed that the legal status of the
Contractor, its subcontractors, agents, officers and employees is that of an independent contractor
and in no manner shall they be deemed employees of the State of New York and, therefore, are not
entitled to any of the benefits associated with such employment.
8. APPENDICCES A and B Appendix A, Standard Clauses for New York State Contracts,
attached hereto, and Appendix B, General Specifications are hereby expressly made a part of this
Agreement as fully as if set forth at length herein.
9. ASSIGNMENT Contractor agrees that it will not assign this Agreement, or any interest
therein, without the prior written consent of the Commissioner of General Services, which consent
may be unreasonably withheld.
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10. LAW This Agreement shall be governed by the laws of the State of New York.
11. CONDITIONS PRECEDENT This Agreement shall not be deemed executed, valid or
binding unless and until approved in writing by the Attorney General and the State Comptroller.
12. ENTIRE AGREEMENT This Agreement constitutes the entire Agreement between the
parties hereto and no statement, promise, condition, understanding, inducement or representation,
oral or written, expressed or implied, which is not contained herein shall be binding or valid and
this Agreement shall not be changed, modified or altered in any manner except by an instrument in
writing executed by both parties hereto.
13. EXECUTORY CLAUSE This Agreement shall be deemed executory only to the extent of
money available to the State for performance of the terms hereof and no liability on account thereof
shall be incurred by the State of New York beyond moneys available for purposes thereof.
14. CONFLICT OF TERMS AND CONDITIONS In the event of any discrepancy,
disagreement or ambiguity between this contract agreement and any of the attached documents, the
documents shall be given preference in the following order to interpret and to resolve such
discrepancy, disagreement or ambiguity:
(i) Appendix A and this contract agreement
(ii) Appendix C - The Request for Proposal
(iii) Appendix B — General Specifications
(iv) Appendix D - The Bidder's Bid (i.e. the Proposal as submitted by Remi)
The parties understand and agree that any and all deviations or exceptions taken by Contractor to
the State's Request for Proposal are hereby withdrawn except only to the extent that such
exceptions or deviations have been explicitly incorporated into this contract agreement.
15. FORCE MAJEURE Neither party hereto will be liable for losses, defaults, or damages under
this Agreement which result from delays in performing, or inability to perform, all or any of the
obligations or responsibilities imposed upon it pursuant to the terms and conditions of this
Agreement, due to or because of acts of God, the public enemy, acts of government, earthquakes,
floods, strikes, civil strife, fire or any other cause beyond the reasonable control of the party that
was so delayed in performing or so unable to perform provided that such party was not negligent
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and shall have used reasonable efforts to avoid and overcome such cause. Such party will resume
full performance of such obligations and responsibilities promptly upon removal of any such cause.
16. ASSIGNMENT BY STATE The State agrees not to assign this Agreement without prior
notice to and reasonable consent of the Contractor provided, however, that this Agreement may be
assigned without such consent to another agency or subdivision of the State pursuant to a
governmental reorganization or assignment of functions under which the pertinent functions of
OGS as an agency are transferred to a successor agency or subdivision of the State.
17. NOTICES All notices, demands, designations, certificates, requests, offers, consents,
approvals and other instruments given pursuant to this Agreement shall be in writing and shall be
validly given when mailed by registered or certified mail, overnight carrier or hand delivered, (i) if
to the State, addressed to the State at its address set forth above, and (ii) if to Contractor, addressed
to Contractor at its address set forth above. The parties may from time to time, specify any address
in the United States as its address for purpose of notices under this Agreement by giving fifteen
(15) days written notice to the other party. The parties agree to mutually designate individuals as
their respective representatives for the purposes of this Agreement.
18. CAPTIONS The captions contained in this Agreement are intended for convenience and
reference purposes only and shall in no way be deemed to define or limit any provision thereof.
19. SEVERABILITY In the event that any one or more of the provisions of this Agreement shall
for any reason be declared unenforceable under the laws or regulations in force, such provision will
not have any effect on the validity of the remainder of this Agreement, which shall then be
construed as if such unenforceable provision had never been written or was never contained in this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above. The parties further hereby certify that original copies of this executed and
approved signature page will be affixed, upon final approval by the NYS Comptroller, to exact
copies of this Agreement being executed simultaneously herewith.The Remi Group, LLC
THE PEOPLE OF THE STATE OF NEW YORK
By: By:
Name:
Title:
Name:
Title:
New York State Office of General Services
Date: Date:
Corporate Federal ID #:
APPROVED AS TO FORM APPROVED
ANDREW CUOMO THOMAS DINAPOLI
ATTORNEY GENERAL COMPTROLLER
Page 7of8
INDIVIDUAL, CORPORATE, PARTNERSHIP OR LLC ACKNOWLEDGMENT
STATE OF
COUNTY OF
}
}
:ss.:
On the day of , in the year 2010_ before me personally appeared
, known to me to be the person who executed the Invitation for Bids, who
being duly sworn by me did depose and say that _he resides at
in the Town of
[Check One]
, State of
, County of
, and further that:
(❑ If an individual): _he executed the foregoing instrument in his/her name and on his/her own behalf.
(❑ If a corporation): _he is the of , the
corporation described in said instrument; that, by authority of the Board of Directors of said corporation,
_he is authorized to execute the foregoing instrument on behalf of the. corporation for purposes set forth
therein; and that, pursuant to that authority, _he executed the foregoing in the name of and on behalf of said
corporation as the act and deed of said corporation.
(❑ If a partnership): _he is the of , the
partnership described in said instrument; that, by the terms of said partnership, _he is authorized to execute
the foregoing instrument on behalf of the partnership for the purposes set forth therein; and that, pursuant to
that authority, _he executed the foregoing in the name and on behalf of said partnership as the act and deed
of said partnership.
(n If a Limited Liability Company): _he is a duly authorized member of
LLC, the limited liability company described in said instrument; that _he is authorized to execute the
foregoing instrument on behalf of the limited liability company for purposes set forth therein; and that,
pursuant to that authority, _he executed the foregoing instrument in the name of and on behalf of said
limited liability company as the act and deed of behalf of said limited liability company as the act and deed
of said limited liability company
Notary Public
Page 8 of 8
ANDREW M. CUOMO
GOVERNOR
February 10, 2011
STATE OF NEW YORK
EXECUTIVE DEPARTMENT
OFFICE OF GENERAL SERVICES
MAYOR ERASTUS CORNING 2ND TOWER
THE GOVERNOR NELSON A. ROCKEFELLER EMPIRE STATE PLAZA
ALBANY, NEW YORK 12242
Ms. Laura Barclift
The Remi Group, LLC
11325 N. Community House Rd, Ste 300
Charlotte, NC 28277
Phone: (704) 602-0832
Fax: (704) 887-2916
RE: RFP 21988-PF
Group 79000 — Equipment Maintenance Program (EMP) (Statewide)
Dear Ms. Barclift:
CARLA CHIARO
ACTING COMMISSIONER
ANNE G. PHILLIPS
ACTING DEPUTY COMMISSIONER
INFORMATION TECHNOLOGY AND
PROCUREMENT SERVICES
Thank you for your ongoing assistance with our evaluation of RFP 21988-PF. As we have previously
noted it appears that the Remi Group's proposal represents the "best value" for the state of New York and
we have prepared an award recommendation package for review by the Office of the State Comptroller
(OSC). In the process of this pre -audit, it was brought to OGS-PSG's attention that the Remi Group, LLC
holds a Federal GSA Contract #GS 35F-0161X, the terms and conditions of which offer a 27% discount.
The discount bid previously negotiated with the Remi Group, LLC in response to RFP 21988-PF offered
New York State a 26.5% discount. As a part of OGS-PSG's responsibility for due diligence we are asked
to provide OSC with justification as to the reasonableness of price when recommending awarding a
contract.
Before proceeding further with an award recommendation we are requesting that the Remi Group,
LLC consider making an improved offer by deepening their discount to bring it more into line with the
discount currently being offered to GSA. As you are aware the current OGS contract with the Remi Group,
LLC already contains a discount of 25%. The proposed replacement contract will be a statewide
centralized contract and thus it is reasonably anticipated that the volume of business conducted under this
contract will increase significantly reinforcing our conviction that an increase in the discount structure
would be reasonable and beneficial to both parties at this time.
Please complete and sign and date this letter in response to our inquiry.
Please select one from the following three options below:
Yes, we agree to match the GSA discount of 27% under the terms and conditions
outlined in RFP 21988-PF.
Yes, we agree to an increase in discount percentage (%) of % for a total discount of
No, we do NOT wish to offer an additional discount at this time.
Signature: Date:
Printed Name:
Title:
Company:
Address:
Sincerely,
Jason D. Wilkie
Purchasing Officer 2
NYS Office General Services
Procurement Services Group
37th Floor - Corning Tower
Empire State Plaza
Albany, NY 12242
(518)-402-5846
(518)-474-2437 Fax
Email: iason.wilkie@oes.state.nv.us
APPENDIX A
STANDARD CLAUSES FOR NEW YORK STATE CONTRACTS
PLEASE RETAIN THIS DOCUMENT
FOR FUTURE REFERENCE.
November, 2010
STANDARD CLAUSES FOR NYS CONTRACTS AMIDE
TABLE OF CONTENTS
Page
1.- Executory -Clause 3
2. Non -Assignment Clause 3
3. Comptroller's Approval 3
4. Workers' Compensation Benefits 3
5. Non -Discrimination Requirements 3
6. Wage and Hours Provisions 3
7. Non -Collusive Bidding Certification 3
8. International Boycott Prohibition 3
9. Set -Off Rights 4
10. Records 4
11. Identifying Information and Privacy Notification 4
12. Equal Employment Opportunities For Minorities and Women 4
13. Conflicting Terms 5
14. Governing Law 5
15. Late Payment 5
16. No Arbitration 5
17. Service of Process 5
18. Prohibition on Purchase of Tropical Hardwoods 5
19. MacBride Fair Employment Principles 5
20. Omnibus Procurement Act of 1992 5
21. Reciprocity and Sanctions Provisions 6
22. Compliance with New York State Information
Security Breach and Notification Act 6
23. Compliance with Consultant Disclosure Law 6
24. Procurement Lobbying 6
25. Certification of Registration to Collect Sales and
Compensating Use Tax by Certain State Contractors,
Affiliates and Subcontractors 6
Page 2 November, 2010
STANDARD CLAUSES FOR NYS CONTRACTS APPENDDLA
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 State's previous written consent, and attempts to do
so are null and void. Notwithstanding the foregoing, such prior
written consent of an assignment of a contract let pursuant to
Article XI of the State Finance Law may be waived at the
discretion of the contracting agency and with the concurrence
of the State Comptroller where the original contract was subject
to the State Comptroller's approval, where the assignment is
due to a reorganization, merger or consolidation of the
Contractor's business entity or enterprise. The State retains its
right to approve an assignment and to require that any
Contractor demonstrate its responsibility to do business with
the State. The Contractor may, however, assign its right to
receive payments 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 $50,000 (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 $85,000 (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
Page 3
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 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. Additionally, effective April
28, 2008, if this is a public work contract covered by Article 8
of the Labor Law, the Contractor understands and agrees that
the filing of payrolls in a manner consistent with Subdivision 3-
a of Section 220 of the Labor Law shall be a condition
precedent to payment by the State of any State approved sums
due and owing for work done upon the project.
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
November, 2010
STANDARD CLAUSES FOR NYS CONTRACTS
IMPENDDLA
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.
(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-ofTaxation-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
Page 4 November, 2010
STANDARD CLAUSES FOR NYS CONTRACTS
APPEMDDI A
(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 Statc
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
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
Page 5 November, 2010
accordance with, but not limited to, the specifications and
provisions of Section 165 of the State Finance Law, (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. Any such use must meet with the
approval of the State; otherwise, the bid may not be considered
responsive. Under bidder certifications, proof of qualification
for exemption will be the responsibility of the Contractor to
meet with the approval of the State.
19. MACBRIDE FAIR EMPLOYMENT PRINCIPLES.
In accordance with the MacBride Fair Employment Principles
(Chapter 807 of the Laws of 1992), the Contractor hereby
stipulates that the Contractor either (a) has no business
operations in Northern Ireland, or (b) shall take lawful steps in
good faith to conduct any business operations in Northern
Ireland in accordance with the MacBride Fair Employment
Principles (as described in Section 165 of the New York State
Finance Law), and shall permit independent monitoring of
compliance with such principles.
20. OMNIBUS PROCUREMENT ACT OF 1992. It is
the policy of New York State to maximize opportunities for the
participation of New York State business enterprises, including
minority and women -owned business enterprises as bidders,
subcontractors and suppliers on its procurement contracts.
Information on the availability of New York State
subcontractors and suppliers is available from:
NYS Department of Economic Development
Division for Small Business
30 South Pearl St -- 7th Floor
Albany, New York 12245
Telephone: 518-292-5220
Fax: 518-292-5884
http://www.empire.state.ny.us
A directory of certified minority and women -owned business
enterprises is available from:
NYS Department of Economic Development
Division of Minority and Women's Business
Development
30 South Pearl St -- 2nd Floor
Albany, New York 12245
Telephone: 518-292-5250
Fax: 518-292-5803
http://www.empire.state.ny.us
The Omnibus Procurement Act of 1992 requires that by signing
this bid proposal or contract, as applicable, Contractors certify
that whenever the total bid amount is greater than $1 million:
STANDARD CLAUSES FOR NYS CONTRACTS
APPENDIXA
(a) The Contractor has made reasonable efforts to
encourage the participation of New York State Business
Enterprises as suppliers and subcontractors, including certified
minority and women -owned business enterprises, on this
project, and has retained the documentation of these efforts to
be provided upon request to the State;
(b) The Contractor has complied with the Federal Equal
Opportunity Act of 1972 (P.L. 92-261), as amended;
(c) The Contractor agrees to make reasonable efforts to
provide notification to New York State residents of
employment opportunities on this project through listing any
such positions with the Job Service Division of the New York
State -Department -of Labor, or providing such notification in
such manner as is consistent with existing collective bargaining
contracts or agreements. The Contractor agrees to document
these efforts and to provide said documentation to the State
upon request; and
(d) The Contractor acknowledges notice that the State may
seek to obtain offset credits from foreign countries as a result of
this contract and agrees to cooperate with the State in these
efforts.
21. RECIPROCITY AND SANCTIONS PROVISIONS.
Bidders are hereby notified that if their principal place of
business is located in a country, nation, province, state or
political subdivision that penalizes New York State vendors,
and if the goods or services they offer will be substantially
produced or performed outside New York State, the Omnibus
Procurement Act 1994 and 2000 amendments (Chapter 684 and
Chapter 383, respectively) require that they be denied contracts
which they would otherwise obtain. NOTE: As of May 15,
2002, the list of discriminatory jurisdictions subject to this
provision includes the states of South Carolina, Alaska, West
Virginia, Wyoming, Louisiana and Hawaii. Contact NYS
Department of Economic Development for a current list of
jurisdictions subject to this provision.
22. COMPLIANCE WITH NEW YORK STATE
INFORMATION SECURITY BREACH AND
NOTIFICATION ACT. Contractor shall comply with the
provisions of the New York State Information Security Breach
and Notification Act (General Business Law Section 899-aa;
State Technology Law Section 208).
23. COMPLIANCE WITH CONSULTANT
DISCLOSURE LAW. If this is a contract for consulting
services, defined for purposes of this requirement to include
analysis, evaluation, research, training, data processing,
computer programming, engineering, environmental, health,
and mental health services, accounting, auditing, paralegal,
legal or similar services, then, in accordance with Section 163
(4-g) of the State Finance Law (as amended by Chapter 10 of
the Laws of 2006), the Contractor shall timely, accurately and
properly comply with the requirement to submit an annual
employment report for the contract to the agency that awarded
the contract, the Department of Civil Service and the State
Comptroller.
24. PROCUREMENT LOBBYING. To the extent this
agreement is a "procurement contract" as defined by
State Finance Law Sections 139-j and 139-k, by signing this
agreement the contractor certifies and affirms that all
disclosures made in accordance with State Finance Law
Sections 139-j and 139-k are complete, true and accurate. In
the event such certification is found to be intentionally false or
intentionally incomplete, the State may terminate the
agreement by providing written notification to the Contractor in
accordance with the terms of the agreement.
25. CERTIFICATION OF REGISTRATION TO
COLLECT SALES AND COMPENSATING USE TAX BY
CERTAIN STATE CONTRACTORS, AFFILIATES AND
SUBCONTRACTORS.
To the extent this agreement is a contract as defined by Tax
Law Section 5-a, if the contractor fails to make the certification
required by Tax Law Section 5-a or if during the term of the
contract, the Department of Taxation and Finance or the
• covered agency, as defined by Tax Law 5-a,-discovers that the
certification, made under penalty of perjury, is false, then such
failure to file or false certification shall be a material breach of
this contract and this contract may be terminated, by providing
written notification to the Contractor in accordance with the
terms of the agreement, if the covered agency determines that
such action is in the best interest of the State.
Page 6 November, 2010
NEW YORK STATE OFFICE OF GENERAL SERVICES
PROCUREMENT SERVICES GROUP
APPENDIX B
GENERAL SPECIFICATIONS
PLEASE RETAIN THIS DOCUMENT FOR FUTURE REFERENCE
July 2006
GENERAL SPECIFICATIONS APPENDIX B
TABLE OF CONTENTS
GENERAL
1. Applicability
2. Governing Law
3. Ethics Compliance
4. Conflict of Terms
5. Definitions
BID SUBMISSION
6. _._International Bidding ,.,___
7. Bid Opening
8. Bid Submission
9. Facsimile Submissions
10. Authentication of Facsimile Bids
11. Late Bids
12. Bid Contents
13. Extraneous Terms
14. Confidential/Trade Secret Materials
15. Release of Bid Evaluation Materials
16. Freedom of Information Law
17. Prevailing Wage Rates - Public Works
and Building Services Contracts
18. Taxes
19. Expenses Prior to Contract Execution
20. Advertising Results
21. Product References
22. Remanufactured, Recycled, Recyclable
Or Recovered Materials
23. Products Manufactured in Public
Institutions
24. Pricing
25. Drawings
26. Site Inspection
27. Procurement Card
28. Samples
BID EVALUATION
29. Bid Evaluation
30. Conditional Bid
31. Clarification/Revisions
32. Prompt Payment Discounts
33. Equivalent or Identical Bids
34. Performance and Responsibility
Qualifications
35. Disqualification for Past Performance
36. Quantity Changes Prior To Award
37. Timeframe for Offers
TERMS & CONDITIONS
38. Contract Creation/Execution
39. Participation in Centralized Contracts
40. Modification of Contract Terms
41. Scope Changes
42. Estimated/Specific Quantity Contracts
PAGE
TERMS & CONDITIONS
1 43. Emergency Contracts
1 44. Purchase Orders
1 45. Product Delivery
1 46. Weekend and Holiday Deliveries
1-3 47. Shipping/Receipt of Product
48. Title and Risk of Loss
49. Re -Weighing Product
50. Product Substitution
51. Rejected Product
52. Installation
53. Repaired or Replaced Product/
Components
54. On -Site Storage
55. Employees/Subcontractors/Agents
56. Assignment
57. Subcontractors and Suppliers
58. Performance/Bid Bond
59. Suspension of Work
60. Termination
61. Savings/Force Majeure
62. Contract Billings
63. Default - Authorized User
64. Interest on Late Payments
65. Remedies for Breach
66. Assignment of Claim
67. Toxic Substances
68. Independent Contractor
69. Security
70. Cooperation with Third Parties
71. Contract Term - Renewal
72. Additional Warranties
73. Legal Compliance
74. Indemnification
75. Indemnification Relating to Third
Party Rights
76. Limitation of Liability
77. Insurance
3
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THE FOLLOWING CLAUSES PERTAIN TO
TECHNOLOGY & NEGOTIATED CONTRACTS
78. Software License Grant
79. Product Acceptance
80. Audit of Licensed Product Usage
81. Ownership/Title to Project
Deliverables
82. Proof of License
83. Product Version
84. Changes to Product or
Service Offerings
85. No Hardstop/Passive
License Monitoring
86. Source Code Escrow for
Licensed Product
15
17
17
17
18
18
18
19
19
July 2006
GENERAL SPECIFICATIONS
APPENDIX B
GENERAL
1. APPLICABILITY The terms and conditions set forth in this
Appendix B are expressly incorporated in and applicable to the
resulting procurement contracts let by the Office of General Services
Procurement Services Group, or let by any other Authorized User
where incorporated by reference in its Bid Documents. Captions are
intended as descriptive and are not intended to limit or otherwise
restrict the terms and conditions set forth herein.
2. GOVERNING LAW This procurement, the resulting contract
and any purchase orders issued hereunder shall be governed by the
laws of the State of New York except where the Federal supremacy
clause requires otherwise, and actions or proceedings arising from the ___
contract shall be heard in a court of competent jurisdiction in the State
of New York.
3. ETHICS COMPLIANCE All Bidders/Contractors and their
employees must comply with the requirements of Sections 73 and 74
of the Public Officers Law, other State codes, rules, regulations and
executive orders establishing ethical standards for the conduct of
business with New York State. In signing the Bid, Bidder certifies full
compliance with those provisions for any present or future dealings,
transactions, sales, contracts, services, offers, relationships, etc.,
involving New York State and/or its employees. Failure to comply
with those provisions may result in disqualification from the Bidding
process, termination of contract, and/or other civil or criminal
proceedings as required by law.
4. CONFLICT OF TERMS Unless otherwise set forth in the
procurement or contract documents, conflicts among documents shall
be resolved in the following order of precedence:
a. Appendix A (Standard Clauses for NYS Contracts)
b. Mini -Bid Protect Definition if applicable and in accordance
with the terms and conditions of the Back -Drop Contract.
c. Contract and other writing(s) setting forth the final
agreements, clarifications and terms between the Bid Documents and
Contractor's Bid. In the latter circumstance, clarifications must
specifically note in writing what was offered by the Contractor and
what was accepted by the State. If not, such clarifications shall be
considered last in the order of precedence under this paragraph.
d. Bid Documents (Other than Appendix A).
i. Bid Specifications prepared by the Authorized User.
ii. Appendix B (General Specifications).
iii. Incorporated Contract Appendices, if any, following the
order of precedence as stated for Contract above.
e. Contractor's Bid or Mini -Bid Proposal.
f. Unincorporated Appendices (if any).
5. DEFINITIONS Terms used in this Appendix B shall have the
following meanings:
AFFILIATE Any individual or other legal entity, (including but not
limited to sole proprietor, partnership, limited liability company, firm
or corporation) that effectively controls another company in which (a)
the Bidder owns more than 50% of the ownership; or (b) any
individual or other legal entity which owns more than 50% of the
ownership of the Bidder. In addition, if a Bidder owns less than 50%
of the ownership of another legal entity, but directs or has the right to
direct such entity's daily operations, that entity will be an Affiliate.
AGENCY OR AGENCIES The State of New York, acting by
or through one or more departments, boards, commissions,
offices or institutions of the State of New York.
ATTORNEY GENERAL Attorney General of the State of New
York.
AUTHORIZED USER(S) Agencies, or any other entity authorized
by the laws of the State of New York to participate in NYS centralized
contracts (including but not limited to political subdivisions, public
authorities, public benefit corporations and certain other entities set
forth in law), or the State of New York acting on behalf of one or more
such Agencies or other entities, provided that each such Agency or
other entity shall be held solely responsible for liabilities or payments
due as a result of its participation.
BID OR BID PROPOSAL An offer or proposal submitted by a
Bidder to furnish a described product or a solution, perform services or
means of achieving a practical end, at a stated price for the stated
Contract term. As required by the Bid Documents, the Bid or proposal
may be- subject to modification through the solicitation by the Agency
of best and final offers during the evaluation process prior to
recommendation for award of the Contract.
BIDDER/OFFERER Any individual or other legal entity (including
but not limited to sole proprietor, partnership, limited liability
company, firm or corporation) which submits a Bid in response to a
Bid Solicitation. The term Bidder shall also include the term
"offeror." In the case of negotiated Contracts, "Bidder" shall refer to
the "Contractor."
BID DOCUMENTS Writings by the State setting forth the scope,
terms, conditions and technical specifications for a procurement of
Product. Such writings typically include, but are not limited to:
Invitation for Bids (IFB), Request for Quotation (RFQ), Request for
Proposals (RFP), addenda or amendments thereto, and terms and
conditions which are incorporated by reference, including but not
limited to, Appendix A (Standard Clauses for NYS Contracts),
Appendix B, (General Specifications). Where these General
Specifications are incorporated in negotiated Contracts that have not
been competitively Bid, the term "Bid Documents" shall be deemed to
refer to the terms and conditions set forth in the negotiated Contract
and associated documentation.
BID SPECIFICATION A written description drafted by the
Authorized User setting forth the specific terms of the intended
procurement, which may include: physical or functional
characteristics, the nature of a commodity or construction item, any
description of the work to be performed, Products to be provided, the
necessary qualifications of the Bidder, the capacity and capability of
the Bidder to successfully carry out the proposed Contract, or the
process for achieving specific results and/or anticipated outcomes or
any other requirement necessary to perform work. Where these
General Specifications are incorporated in negotiated Contracts that
have not been competitively Bid, the term "Bid Specifications" shall
be deemed to refer to the terms and conditions set forth in the
negotiated Contract and associated documentation.
COMMISSIONER Commissioner of OGS, or in the case of Bid
Specifications issued by an Authorized User, the head of such
Authorized User or their authorized representative.
COMPTROLLER Comptroller of the State of New York.
CONTRACT The writing(s) which contain the agreement of the
Commissioner and the Bidder/Contractor setting forth the total legal
obligation between the parties as determined by applicable rules of
law, and which most typically include the following classifications of
public procurements:
July 2006 1
GENERAL SPECIFICATIONS
APPENDIX B
a. Agency Specific Contracts Contracts where the specifications
for a Product or a particular scope of work are described and defined to
meet the needs of one or more Authorized User(s).
b. Centralized Contracts Single or multiple award Contracts
where the specifications for a Product or general scope of work are
described and defined by the Office of General Services to meet the
needs of Authorized Users. Centralized Contracts may be awarded
through multiple awards or through adoption of another jurisdiction's
contract or on a sole source, single source, emergency or competitive
basis. Once established, procurements may be made from the selected
Contractor(s) without further competition or Mini -Bid unless
otherwise required by the Bid Specifications or Contract Award
Notification.
c. Back -Drop Contracts Multiple award Centralized Contracts
where the Office of General. Services defines the specifications for a
Product or general scope of work to meet the needs of Authorized
Users. Bids may be submitted either at a date and time certain or may
be accepted on a continuous or periodic recruitment basis, as set forth
in the Bid Specifications. Selection of a Contractor(s) from among
Back -Drop contract holders for an actual Product, project or particular
scope of work may subsequently be made on a single or sole source
basis, or on the basis of a Mini -Bid among qualified Back -Drop
contract holders, or such other method as set forth in the Bid
Document.
d. Piggyback Contract A Contract let by any department, agency
or instrumentality of the United States government, or any department,
agency, office, political subdivision or instrumentality of any state or
state(s) which is adopted and extended for use by the OGS
Commissioner in accordance with the requirements of the State
Finance Law.
e. Contract Letter A letter to the successful Bidder(s) indicating
acceptance of its Bid in response to a solicitation. Unless otherwise
specified, the issuance of a Letter of Acceptance forms a Contract but
is not an order for Product, and Contractor should not take any action
with respect to actual Contract deliveries except on the basis of
Purchase Orders sent from Authorized User(s).
CONTRACT AWARD NOTIFICATION An announcement to
Authorized Users that a Contract has been established.
CONTRACTOR Any successful Bidder(s) to whom a Contract has
been awarded by the Commissioner.
DOCUMENTATION The complete set of manuals (e.g., user,
installation, instruction or diagnostic manuals) in either hard or
electronic copy, which are necessary to enable an Authorized User to
properly test, install, operate and enjoy full use of the Product.
EMERGENCY An urgent and unexpected requirement where health
and public safety or the conservation of public resources is at risk.
ENTERPRISE The total business operations in the United States of
Authorized User (s) without regard to geographic location where such
operations are performed or the entity actually performing such
operations on behalf of Authorized User.
ENTERPRISE LICENSE A license grant of unlimited rights to
deploy, access, use and execute Product anywhere within the
Enterprise up to the maximum capacity stated on the Purchase Order
or in the Contract.
ERROR CORRECTIONS Machine executable software code
fumished by Contractor which corrects the Product so as to conform to
the applicable warranties, performance standards and/or obligations of
the Contractor.
GROUP A classification of Product, services or technology which is
designated by OGS.
INVITATION FOR BIDS (IFB) A type of Bid Document which is
most typically used where requirements can be stated and award will
be made based on lowest price to the responsive and responsible
Bidder(s).
LICENSED SOFTWARE Software transferred upon the terms and
conditions set forth in the Contract. "Licensed Software" includes
error corrections, upgrades, enhancements or new releases, and any
deliverables due under a maintenance or service contract (e.g., patches,
fixes, PTFs, programs, code or data conversion, or custom
programming).
LICENSEE One or more Authorized Users who acquire Product
from Contractor by issuing a Purchase Order in accordance with the
terms and conditions of the Contract; provided that, for purposes of
compliance with an individual license, the term "Licensee" shall be
deemed to refer separately to the individual Authorized User(s) who
took receipt of and who is executing the Product, and who shall be
solely responsible for performance and liabilities incurred. In the case
of acquisitions by State Agencies, the Licensee shall be the State of
New York.
LICENSE EFFECTIVE DATE The date Product is delivered to an
Authorized User. Where a License involves Licensee's right to copy a
previously licensed and delivered Master Copy of a Program, the
license effective date for additional copies shall be deemed to be the
date on which the Purchase Order is executed.
LICENSOR A Contractor who transfers rights in proprietary Product
to Authorized Users in accordance with the rights and obligations
specified in the Contract.
MINI -BID PROJECT DEFINITION A Bid Document containing
project specific Bid Specifications developed by or for an Authorized
User which solicits Bids from Contractors previously qualified under a
Back -Drop Contract.
MULTIPLE AWARD A determination and award of a Contract in
the discretion of the Commissioner to more than one responsive and
responsible Bidder who meets the requirements of a specification,
where the multiple award is made on the grounds set forth in the Bid
Document in order to satisfy multiple factors and needs of Authorized
Users (e.g., complexity of items, various manufacturers, differences in
performance required to accomplish or produce required end results,
production and distribution facilities, price, compliance with delivery
requirements, geographic location or other pertinent factors).
NEW PRODUCT RELEASES (Product Revisions) Any
commercially released revisions to the licensed version of a Product as
may be generally offered and available to Authorized Users. New
releases involve a substantial revision of functionality from a
previously released version of the Product.
OGS The New York State Office of General Services.
PROCUREMENT RECORD Documentation by the Authorized
User of the decisions made and approach taken during the procurement
process and during the contract term.
July 2006 2
GENERAL SPECIFICATIONS
APPENDIX B
PRODUCT A deliverable under any Bid or Contract which may
include commodities, services and/or technology. The term "Product"
includes Licensed Software.
PROPRIETARY Protected by secrecy, patent, copyright or
trademark against commercial competition.
PURCHASE ORDER The Authorized User's fiscal form or format
that is used when making a purchase (e.g., formal written Purchase
Order, Procurement Card, electronic Purchase Order, or other
authorized instrument).
REQUEST FOR PROPOSALS (RFP) A type of Bid Document that
is used for procurements where factors in addition to cost are
considered and weighted in awarding the contract and where the
method of award is "best value," as defined by the State Finance Law.
REQUEST FOR QUOTATION (RFQ) A type of Bid Document
that can be used when a formal Bid opening is not required (e.g.,
discretionary, sole source, single source or emergency purchases).
RESPONSIBLE BIDDER A Bidder that is determined to have
financial and organizational capacity, legal authority, satisfactory
previous performance, skill, judgment and integrity, and that is found
to be competent, reliable and experienced, as determined by the
Commissioner. For purposes of being deemed responsible, a Bidder
must also be determined to be in compliance with Sections 139 j and
139-k of the State Finance Law relative to restrictions on contacts
during the procurement process and disclosure of contacts and prior
findings of non -responsibility under these statutes.
RESPONSIVE BIDDER A Bidder meeting the specifications or
requirements prescribed in the Bid Document or solicitation, as
determined by the OGS Commissioner.
SINGLE SOURCE A procurement where two or more Bidders can
supply the required Product, and the Commissioner may award the
contract to one Bidder over the other.
SITE The location (street address) where Product will be executed or
services delivered.
SOLE SOURCE A procurement where only one Bidder is capable of
supplying the required Product.
SOURCE CODE The programming statements or instructions
written and expressed in any language understandable by a human
being skilled in the art which are translated by a language compiler to
produce executable machine Object Code.
STATE State of New York.
SUBCONTRACTOR Any individual or other legal entity, (including
but not limited to sole proprietor, partnership, limited liability
company, firm or corporation) who has entered into a contract, express
or implied, for the performance of a portion of a Contract with a
Contractor.
TERMS OF LICENSE The terms and conditions set forth in the
Contract that are in effect and applicable to a Purchase Order at the
time of order placement.
VIRUS Any computer code, whether or not written or conceived by
Contractor, that disrupts, disables, harms, or otherwise impedes in any
manner the operation of the Product, or any other associated software,
firmware, hardware, or computer system (such as local area or wide -
area networks), including aesthetic disruptions or distortions, but does
not include security keys or other such devices installed by Product
manufacturer.
BID SUBMISSION
6. INTERNATIONAL BIDDING All offers (tenders), and all
information and Product required by the solicitation or provided as
explanation thereof, shall be submitted in English. All prices shall be
expressed, and all payments shall be made, in United States Dollars
($US). Any offers (tenders) submitted which do not meet the above
criteria will be rejected.
7. BID OPENING Bids may, as applicable, be opened publicly.
The Commissioner reserves the right at any time to postpone or cancel
a scheduled Bid opening:
8. BID SUBMISSION All Bids are to be packaged, sealed and
submitted to the location stated in the Bid Specifications. Bidders are
solely responsible for timely delivery of their Bids to the location set
forth in the Bid Specifications prior to the stated Bid opening
date/time.
A Bid return envelope, if provided with the Bid Specifications, should
be used with the Bid sealed inside. If the Bid response does not fit into
the envelope, the Bid envelope should be attached to the outside of the
sealed box or package with the Bid inside. If using a commercial
delivery company that requires use of their shipping package or
envelope, Bidder's sealed Bid, labeled as detailed below, should be
placed within the shipper's sealed envelope to ensure that the Bid is
not prematurely opened.
All Bids must have a label on the outside of the package or shipping
container outlining the following information:
"BID ENCLOSED (bold print, all capitals)
• Group Number
IFB or RFP Number
• Bid Submission date and time"
In the event that a Bidder fails to provide such information on the
return Bid envelope or shipping material, the receiving entity reserves
the right to open the shipping package or envelope to determine the
proper Bid number or Product group, and the date and time of Bid
opening. Bidder shall have no claim against the receiving entity
arising from such opening and such opening shall not affect the
validity of the Bid or the procurement.
Notwithstanding the receiving agency's right to open a Bid to ascertain
the foregoing information, Bidder assumes all risk of late delivery
associated with the Bid not being identified, packaged or labeled in
accordance with the foregoing requirements.
All Bids must be signed by a person authorized to commit the Bidder
to the terms of the Bid Documents and the content of the Bid (offer).
9. FACSIMILE SUBMISSIONS Unless specifically prohibited by
the terms of the Bid Specifications, facsimile Bids may be
SUBMITTED AT THE SOLE OPTION AND RISK OF THE
BIDDER. Only the FAX number(s) indicated in the Bid
Specifications may be used. Access to the facsimile machine(s) is on a
"first come, first serve" basis, and the Commissioner bears no liability
or responsibility and makes no guarantee whatsoever with respect to
July 2006 3
GENERAL SPECIFICATIONS
APPENDIX B
the Bidder's access to such equipment at any specific time. Bidders
are solely responsible for submission and receipt of the entire facsimile
Bid by the Authorized User prior to Bid opening and must include on
the first page of the transmission the total number of pages transmitted
in the facsimile, including the cover page. Incomplete, ambiguous or
unreadable transmissions in whole or in part may be rejected at the
sole discretion of the Commissioner. Facsimile Bids are fully
governed by all conditions outlined in the Bid Documents and must be
submitted on forms or in the format required in the Bid Specifications,
including the executed signature page and acknowledgment.
10. AUTHENTICATION OF FACSIMILE BIDS The act of
submitting a Bid by facsimile transmission, including an executed
signature page or as otherwise specified in the Bid Documents, shall
be deemed a confirming act by Bidder which authenticates the signing
of the Bid.
11. LATE BIDS For purposes of Bid openings held and conducted
by OGS, a Bid must be received in such place as may be designated in
the Bid Documents or if no place is specified in the OGS Mailroom
located in the Empire State Plaza, Albany, New York 12242, at or
before the date and time established in the Bid Specifications for the
Bid opening. For purposes of Bid openings held and conducted by
Authorized Users other than OGS, the term late Bid is defined as a Bid
not received in the location established in the Bid Specifications at or
before the date and time specified for the Bid opening.
Any Bid received at the specified location after the time specified will
be considered a late Bid. A late Bid shall not be considered for award
unless: (i) no timely Bids meeting the requirements of the Bid
Documents are received or, (ii) in the case of a multiple award, an
insufficient number of timely Bids were received to satisfy the
multiple award; and acceptance of the late Bid is in the best interests
of the Authorized Users. Bids submitted for continuous or periodic
recruitment contract awards must meet the submission requirements
associated with their specifications. Delays in United States mail
deliveries or any other means of transmittal, including couriers or
agents of the Authorized User shall not excuse late Bid submissions.
Similar types of delays, including but not limited to, bad weather, or
security procedures for parking and building admittance shall not
excuse late Bid submissions. Determinations relative to Bid timeliness
shall be at the sole discretion of the Commissioner.
12. BID CONTENTS Bids must be complete and legible. All Bids
must be signed. All information required by the Bid Specifications
must be supplied by the Bidder on the forms or in the format specified.
No alteration, erasure or addition is to be made to the Bid Documents.
Changes may be ignored by the Commissioner or may be grounds for
rejection of the Bid. Changes, corrections and/or use of white -out in
the Bid or Bidder's response portion of the Bid Document must be
initialed by an authorized representative of the Bidder. Bidders are
cautioned to verify their Bids before submission, as amendments to
Bids or requests for withdrawal of Bids received by the Commissioner
after the time specified for the Bid opening, may not be considered.
13. EXTRANEOUS TERMS Bids must conform to the terms set
forth in the Bid Documents, as extraneous terms or material deviatii ns
(including additional, inconsistent, conflicting or alternative terms)
may render the Bid non -responsive and may result in rejection ofithe
Bid.
Extraneous term(s) submitted on standard, pre-printed forms
(including but not limited to: product literature, order forms, license
agreements, contracts or other documents) that are attached or
referenced with submissions shall not be considered part of the Bid or
resulting Contract, but shall be deemed included for informational or
promotional purposes only.
Only those extraneous terms that meet all the following requirements
may be considered as having been submitted as part of the Bid:
a. Each proposed extraneous term (addition, deletion, counter-offer,
deviation, or modification) must be specifically enumerated in a
writing which is not part of a pre-printed form; and
b. The writing must identify the particular specification requirement
(if any) that Bidder rejects or proposes to modify by inclusion of the
extraneous term; and
c. The Bidder shall enumerate the proposed addition, counter offer,
modification or deviation from the Bid Document, and the reasons
therefore.
No extraneous term(s), whether or not deemed "material," shall be
incorporated into a Contract or Purchase Order unless submitted in
accordance with the above and the Commissioner or Authorized User
expressly accepts each such term(s) in writing. Acceptance and/or
processing of the Bid shall not constitute such written acceptance of
Extraneous Term(s).
14. CONFIDENTIAL/TRADE SECRET MATERIALS
a. Contractor Confidential, trade secret or proprietary materials as
defined by the laws of the State of New York must be clearly marked
and identified as such upon submission by the Bidder. Marking the
Bid as "confidential" or "proprietary" on its face or in the document
header or footer shall not be considered by the Commissioner or
Authorized User to be sufficient without specific justification as to
why disclosure of particular information in the Bid would cause
substantial injury to the competitive position of the Bidder.
Bidders/Contractors intending to seek an exemption from disclosure of
these materials under the Freedom of Information Law must request
the exemption in writing, setting forth the reasons for the claimed
exemption. Acceptance of the claimed materials does not constitute a
determination on the exemption request, which determination will be
made in accordance with statutory procedures. Properly identified
information that has been designated confidential, trade secret, or
proprietary by the Bidder will not be disclosed except as may be
required by the Freedom of Information Law or other applicable State
and federal laws.
b. Commissioner or Authorized User Contractor further warrants,
covenants and represents that any confidential information obtained by
Contractor, its agents, Subcontractors, officers, distributors, resellers
or employees in the course of performing its obligations, including
without limitation, security procedures, business operations
information, or commercial proprietary information in the possession
of the State or any Authorized User hereunder or received from
another third party, will not be divulged to any third parties.
Contractor shall not be required to keep confidential any such material
that is publicly available through no fault of Contractor, independently
developed by Contractor without reliance on confidential information
of the Authorized User, or otherwise obtained under the Freedom of
Information Act or other applicable New York State laws and
regulations. This warranty shall survive termination of this Contract.
Contractor further agrees to take appropriate steps as to its agents,
Subcontractors, officers, distributors, resellers or employees regarding
the obligations arising under this clause to insure such confidentiality.
15. RELEASE OF BID EVALUATION MATERIALS Requests
concerning the evaluation of Bids may be submitted under the
Freedom of Information Law. Information, other than statistical or
July 2006 4
GENERAL SPECIFICATIONS APPENDIX B
factual tabulations or data such as the Bid Tabulation, shall only be
released as required by law after Contract award. Bid Tabulations are
not maintained for all procurements. Names of Bidders may be
disclosed after Bid opening upon request. Written requests should be
directed to the Commissioner.
16. FREEDOM OF INFORMATION LAW During the evaluation
process, the content of each Bid will be held in confidence and details
of any Bid will not be revealed (except as may be required under the
Freedom of Information Law or other State law). The Freedom of
Information Law provides for an exemption from disclosure for trade
secrets or information the disclosure of which would cause injury to
the competitive position of commercial enterprises. This exception
would be effective. both during and _after the_eyaluation process. If the
Bid contains any such trade secret or other confidential or proprietary
information, it must be accompanied in the Bid with a written request
to the Commissioner to not disclose such information: Such request -•
must state with particularity the reasons why the information should
not be available for disclosure and must be provided at the time of
submission of the Bid. Notations in the header, footer or watermark of
the Bid Document will not be considered sufficient to constitute a
request for non -disclosure of trade secret or other confidential or
proprietary information. Where a Freedom of Information request is
made for trademark or other confidential or proprietary information,
the Commissioner reserves the right to determine upon written notice
to the Bidder whether such information qualifies for the exemption for
disclosure under the law. Notwithstanding the above, where a Bid
tabulation is prepared and Bids publicly opened, such Bid tabulation
shall be available upon request. _
17. PREVAILING WAGE RATES - PUBLIC WORKS AND
BUILDING SERVICES CONTRACTS If any portion of work
being Bid is subject to the prevailing wage rate provisions of the Labor
Law, the following shall apply:
a. "Public Works" and `Building Services" - Definitions
i. Public Works Labor Law Article 8 applies to contracts for
public improvement in which laborers, workers or mechanics are
employed on a "public works" project (distinguished from public
"procurement" or "service" contracts). The State, a public benefit
corporation, a municipal corporation (including a school district), or a
commission appointed by law must be a party to the Contract. The
wage and hours provision applies to any work performed by
Contractor or Subcontractors.
ii. Building Services Labor Law Article 9 applies to Contracts
for building service work over $1,500 with a public agency, that: (i)
involve the care or maintenance of an existing building, or (ii) involve
the transportation of office furniture or equipment to or from such
building, or (iii) involve the transportation and delivery of fossil fuel to
such building, and (iv) the principal purpose of which is to furnish
services through use of building service employees.
b. Prevailing Wage Rate Applicable to Bid Submissions A copy
of the applicable prevailing wage rates to be paid or provided are
annexed to the Bid Documents. Bidders must submit Bids which are
based upon the prevailing hourly wages, and supplements in cash or
equivalent benefits (i.e., fringe benefits and any cash or non -cash
compensation which are not wages, as defined by law) that equal or
exceed the applicable prevailing wage rate(s) for the location where
the work is to be performed. Bidders may not submit Bids based upon
hourly wage rates and supplements below the applicable prevailing
wage rates as established by the New York State Department of Labor.
Bids that fail to comply with this requirement will be disqualified.
c. Wage Rate Payments / Changes During Contract Term The
wages to be paid under any resulting Contract shall not be less than the
prevailing rate of wages and supplements as set forth by law. It is
required that the Contractor keep informed of all changes in the
Prevailing Wage Rates during the Contract term that apply to the
classes of individuals supplied by the Contractor on any projects
resulting from this Contract, subject to the provisions of the Labor
Law. Contractor is solely liable for and must pay such required
prevailing wage adjustments during the Contract term as required by
law.
d. Public Posting & Certified Payroll Records In compliance
with Article 8, Section 220 of the New York State Labor Law:
i. Posting The Contractor must publicly post on the work site, in
a prominent and accessible place, a legible schedule of the prevailing
wage rates and supplements.
ii. Payroll Records Contractors and Subcontractors must keep
original payrolls or transcripts subscribed and affirmed as true under
the penalties of perjury as required by law. For public works contracts
over $25,000 where the Contractor maintains no regular place of
business in New York State, such records must be kept at the work
site. For building services contracts, such records must be kept at the
work site while work is being performed.
iii. Submission of Certified Payroll Transcripts for Public
Works Contracts Only Contractors and Subcontractors on public
works projects must submit monthly payroll transcripts to the
Authorized User that has prepared or directs the preparation of the
plans and specifications for a public works project, as set forth in the
Bid Specifications. For Mini -Bid solicitations, the payroll records
must be submitted to the entity preparing the agency Mini -Bid project
specification. For "agency specific" Bids, the payroll records should
be submitted to the entity issuing the purchase order. For all other
OGS Centralized Contracts, such records should be submitted to the
individual agency issuing the purchase order(s) for the work. Upon
mutual agreement of the Contractor and the Authorized User, the form
of submission may be submitted in a specified disk format acceptable
to the -Department of Labor provided: 1) the Contractor/Subcontractor
retains the original records; and, (2) an original signed letter by a duly
authorized individual of the Contractor or Subcontractor attesting to
the truth and accuracy of the records accompanies the disk. This
provision does not apply to Article 9 of the Labor Law building
services contracts.
iv. Records Retention Contractors and Subcontractors must
preserve such certified transcripts for a period of three years from the
date of completion of work on the awarded contract.
Day's Labor Eight hours shall constitute a legal day's work for all
classes of employees in this state except those engaged in farm and
domestic service unless otherwise provided by law.
No laborers, workmen or mechanics in the employ of the Contractor,
Subcontractor or other person doing or contracting to do all or part of
the work contemplated by the Contract shall be permitted or required
to work more than eight hours in any one calendar day or more than
five calendar days in any one week except in cases of extraordinary
emergency including fire, flood or danger to life or property.
"Extraordinary emergency" shall be deemed to include situations in
which sufficient laborers, workers and mechanics cannot be employed
to carry on public work expeditiously as a result of such restrictions
upon the number of hours and days of labor and the immediate
commencement or prosecution or completion without undue delay of
the public work is necessary in the judgment of the NYS
July 2006 5
GENERAL SPECIFICATIONS
APPENDIX B
Commissioner of Labor for the preservation of the Contract site or for
the protection of the life and limb of the persons using the Contract
site.
18. TAXES '
a. Unless otherwise specified in the Bid Specifications or Contract,
the quoted Bid price includes all taxes applicable to the transaction.
b. Purchases made by the State of New York and certain non -State
Authorized Users are exempt from New York State and local sales
taxes and, with certain exceptions, federal excise taxes. To satisfy the
requirements of the New York State Sales tax exemption, either the
Purchase Order issued by a State Agency or the invoice forwarded to
authorize„payment for_such purchases will.be sufficient evidence that.,,,,,
the sale by the Contractor was made to the State, an exempt
organization under Section 1116 (a) (1) of the Tax Law. Non -State
Authorized Users must offer their own proof of exemption upon
request. No person, firm or corporation is, however, exempt from
paying the State Truck Mileage and Unemployment Insurance or
Federal Social Security taxes, which remain the sole responsibility of
the Bidder/Contractor.
c. Pursuant to Revised Tax Law 5-a, Contractor will be required to
furnish sales tax certification on its behalf and for its affiliates, and
subcontractors for Contracts with a value greater than $100,000 in
accordance with provisions of the law.
d. Purchases by Authorized Users other than the State of New York
may be subject to certain taxes which were not included in the Bid
price, and in those instances the tax should be computed based on the
Contract price and added to the invoice submitted to such entity for
payment.
19. EXPENSES PRIOR TO CONTRACT EXECUTION The
Commissioner and any Authorized User(s) are not liable for any costs
incurred by a Vendor, Bidder or Contractor in the preparation and
production of a Bid, Mini -Bid or best and final offers or for any work
performed prior to Contract execution.
20. ADVERTISING RESULTS The prior written approval of the
Commissioner is required in order for results of the Bid to be used by
the Contractor as part of any commercial advertising. The Contractor
shall also obtain the prior written approval of the Commissioner
relative to the Bid or Contract for press or other media releases.
21. PRODUCT REFERENCES
a. "Or Equal" In all Bid Specifications the words "or equal" are
understood to apply where a copyrighted, brand name, trade name,
catalog reference, or patented Product is referenced. References to
such specific Product are intended as descriptive, not restrictive,
unless otherwise stated. Comparable Product will be considered if
proof of compatibility is provided, including appropriate catalog
excerpts, descriptive literature, specifications and test data, etc. The
Commissioner's decision as to acceptance of the Product as equal
shall be final.
b. Discrepancies in References In the event of a discrepancy
between the model number referenced in the Bid Specifications and
the written description of the Products which cannot be reconciled,
with respect to such discrepancy, then the written description shall
prevail.
22. REMANUFACTURED, RECYCLED, RECYCLABLE OR
RECOVERED MATERIALS Upon the conditions specified in the
Bid Specifications and in accordance with the laws of the State of New
York, Contractors are encouraged to use recycled, recyclable or
recovered materials in the manufacture of Products and packaging to
the maximum extent practicable without jeopardizing the performance
or intended end use of the Product or packaging unless such use is
precluded due to health, welfare, safety requirements or in the Bid
Specifications. Contractors are further encouraged to offer
remanufactured Products to the maximum extent practicable without
jeopardizing the performance or intended end use of the Product and
unless such use is precluded due to health, welfare, safety
requirements or by the Bid Specifications. Where such use is not
practical, suitable, or permitted by the Bid Specifications, Contractor
shall deliver new materials in accordance with the "Warranties" set
forth below.
_Items,_ with_ ,_recycled,.._,_ recyclable, __recovered ___refurbished_.._or___.
remanufactured content must be identified in the Bid or Bidder will be
deemed to be offering new Product.
23. PRODUCTS MANUFACTURED IN PUBLIC
INSTITUTIONS Bids offering Products that are manufactured or
produced in public institutions will be rejected.
24. PRICING
a. Unit Pricing If required by the Bid Specifications, the Bidder
should insert the price per unit specified and the price extensions in
decimals, not to exceed four places for each item unless otherwise
specified, in the Bid. In the event of a discrepancy between the unit
price and the extension, the unit price shall govern unless, in the sole
judgment of the Commissioner, such unit pricing is obviously
erroneous.
b. Net Pricing Unless otherwise required by the Bid Specifications,
prices shall be net, including transportation, customs, tariff, delivery
and other charges fully prepaid by the Contractor to the destination(s)
indicated in the Bid Specifications, subject to the cash discount.
c. "No Charge" Bid When Bids are requested on a number of
Products as a Group or Lot, a Bidder desiring to Bid "no charge" on a
Product in the Group or Lot must clearly indicate such. Otherwise,
such Bid may be considered incomplete and be rejected, in whole or in
part, at the discretion of the Commissioner.
d. Educational Pricing All Products to be supplied for educational
purposes that are subject to educational discounts shall be identified in
the Bid and such discounts shall be made available to qualifying
institutions.
e. Third Partv Financing If Product acquisitions are financed
through any third party financing, Contractor may be required as a
condition of Contract Award to agree to the terms and conditions of a
"Consent & Acknowledgment Agreement" in a form acceptable to the
Commissioner.
f. Best Pricing Offer During the Contract term, if substantially the
same or a smaller quantity of a Product is sold by the Contractor
outside of this Contract upon the same or similar terms and conditions
as that of this Contract at a lower price to a federal, state or local
governmental entity, the price under this Contract, at the discretion of
the Commissioner, shall be immediately reduced to the lower price.
Price decreases shall take effect automatically during the Contract term
and apply to Purchase Orders submitted on or after:
(i) GSA Changes: Where NYS Net Prices are based on an approved
GSA Schedule, the date the approved GSA Schedule pricing decreases
during the Contract term; or
(ii) Commercial Price List Reductions: Where NYS Net Prices are
based on a discount from Contractor's list prices, the date Contractor
July 2006 6
GENERAL SPECIFICATIONS APPENDIX B
lowers its pricing to its customers generally or to similarly situated
government customers during the Contract term; or
(iii) Special Offers/Promotions Generally: Where Contractor
generally offers more advantageous special price promotions or special
discount pricing to other customers during the Contract term for a
similar quantity, and the maximum price or discount associated with
such offer or promotion is better than the discount or Net Price
otherwise available under this Contract, such better price or discount
shall apply for similar quantity transactions under this Contract for the
life of such general offer or promotion; and
(iv) Special Offers/Promotions to Authorized Users: Contractor
may offer Authorized Users, under either this Contract or any other
Contracting vehicle, competitive pricing which is lower than the NYS
Net Price set_ forth_here n_at_anytime during _the _Contract_term and__.
such lower pricing shall not be applied as a global price reduction
under the Contract pursuant to the foregoing paragraph (iii).
Unless otherwise specified in the Bid Specifications, Contractor may
offer lower prices or better terms (see Modification of Contract Terms)
on any specific Purchase Order(s) from any Authorized User without
being in conflict with, or obligation to comply on a global basis, with
the terms of this clause.
g. Best and Final Prices As specified in the Bid Documents and
Contract, a Contractor may be solicited at the time of issuance of a
Purchase Order or Mini -Bid award for best and final pricing for the
Product or service to be delivered to the Authorized User. Contractors
are encouraged to reduce their pricing upon receipt of such request.
25. DRAWINGS
a. Drawings Submitted With Bid When the Bid Specifications
require the Bidder to furnish drawings and/or plans, such drawings
and/or plans shall conform to the mandates of the Bid Documents and
shall, when approved by the Commissioner, be considered a part of the
Bid and of any resulting Contract. All symbols and other
representations appearing on the drawings shall be considered a part of
the drawing.
b. Drawings Submitted During the Contract Term Where
required to develop, maintain and deliver diagrams or other technical
schematics regarding the scope of work, Contractor shall do so on an
ongoing basis at no additional charge, and must, as a condition of
payment, update drawings and plans during the Contract term to
reflect additions, alterations, and deletions. Such drawings and
diagrams shall be delivered to the Authorized User's representative.
c. Accuracy of Drawings Submitted All drawings shall be neat
and professional in manner and shall be clearly labeled as to locations
and type of product, connections and components. Drawings and
diagrams are to be in compliance with accepted drafting standards.
Acceptance or approval of such plans shall not relieve the Contractor
from responsibility for design or other errors of any sort in the
drawings or plans, or from its responsibility for performing as
required, furnishing product, services or installation, or carrying out
any other requirements of the intended scope of work.
26. SITE INSPECTION Where a site inspection is required by the
Bid Specifications or Project Definition, Bidder shall be required to
inspect the site, including environmental or other conditions for pre-
existing deficiencies that may affect the installed Product, equipment,
or environment or services to be provided and, which may affect
Bidder's ability to properly deliver, install or otherwise provide the
required Product. All inquiries regarding such conditions shall be
made in writing. Bidder shall be deemed to have knowledge of any
deficiencies or conditions which such inspection or inquiry might have
disclosed. Bidder must provide a detailed explanation with its Bid if
additional work is required under this clause in order to properly
complete the delivery and installation of the required Product or
provide the requested service.
27. PROCUREMENT CARD The State has entered into an
agreement for purchasing card services. The Purchasing Card enables
Authorized Users to make authorized purchases directly from a
Contractor without processing a Purchase Orders or Purchase
Authorizations. Purchasing Cards are issued to selected employees
authorized to purchase for the Authorized User and having direct
contact with Contractors. Cardholders can make purchases directly
from any Contractor that accepts the Purchasing Card.
The Contractor shall not process a transaction for payment
through the credit card clearinghouse until the purchased products
have been shipped or services performed. Unless the cardholder
requests correction or replacement of a defective or faulty Product in
accordance with other Contract requirements, the Contractor shall
immediately credit a cardholder's account for products returned as
defective or faulty.
28. SAMPLES
a. Standard Samples Bid Specifications may indicate that the
Product to be purchased must be equal to a standard sample on display
in a place designated by the Commissioner and such sample will be
made available to the Bidder for examination prior to the opening date.
Failure by the Bidder to examine such sample shall not entitle the
Bidder to any relief from the conditions imposed by the Bid
Specifications.
b. Bidder Supplied Samples The Commissioner reserves the right
to request from the Bidder/Contractor a representative sample(s) of the
Product offered at any time prior to or after award of a contract.
Unless otherwise instructed, samples shall be furnished within the time
specified in the request. Untimely submission of a sample may
constitute grounds for rejection of Bid or cancellation of the Contract.
Samples must be submitted free of charge and be accompanied by the
Bidder's name and address, any descriptive literature relating to the
Product and a statement indicating how and where the sample is to be
returned. Where applicable, samples must be properly labeled with the
appropriate Bid or Contract reference.
A sample may be held by the Commissioner during the entire term of
the Contract and for a reasonable period thereafter for comparison with
deliveries. At the conclusion of the holding period the sample, where
feasible, will be returned as instructed by the Bidder, at the Bidder's
expense and risk. Where the Bidder has failed to fully instruct the
Commissioner as to the return of the sample (i.e., mode and place of
return, etc.) or refuses to bear the cost of its retum, the sample shall
become the sole property of the receiving entity at the conclusion of
the holding period.
c. Enhanced Samples When an approved sample exceeds the
minimum specifications, all Product delivered must be of the same
enhanced quality and identity as the sample. Thereafter, in the event
of a Contractor's default, the Commissioner may procure a Product
substantially equal to the enhanced sample from other sources,
charging the Contractor for any additional costs incurred.
d. Conformance with Sample(s) Submission of a sample (whether
or not such sample is tested by, or for, the Commissioner) and
approval thereof shall not relieve the Contractor from full compliance
with all terms and conditions, performance related and otherwise,
specified in the Bid Specifications. If in the judgment of the
Commissioner the sample or product submitted is not in accordance
with the specifications or testing requirements prescribed in the Bid
July 2006
7
GENERAL SPECIFICATIONS
APPENDIX B
Specifications, the Commissioner may reject the Bid. If an award has
been made, the Commissioner may cancel the Contract at the expense
of the Contractor.
e. Testing All samples are subject to tests in the manner and place
designated by the Commissioner, either prior to or after Contract
award. Unless otherwise stated in the Bid Specifications, Bidder
samples consumed or rendered useless by testing will not be returned
to the Bidder. Testing costs for samples that fails to meet Contract
requirements may be at the expense of the Contractor.
f. Requests For Samples By Authorized Users Requests for
samples by Authorized Users require the consent of the Contractor.
Where Contractor_refusesto_furnish a sample, Authorized User may, ___
in its sole discretion, make a determination on the performance
capability of the Product or on the issue in question.
BID EVALUATION
29. BID EVALUATION The Commissioner reserves the right to
accept or reject any and all Bids, or separable portions of offers, and
waive technicalities, irregularities, and omissions if the Commissioner
determines the best interests of the State will be served. The
Commissioner, in his/her sole discretion, may accept or reject illegible,
incomplete or vague Bids and his/her decision shall be final. A
conditional or revocable Bid which clearly communicates the terms or
limitations of acceptance may be considered, and Contract award may
be made in compliance with the Bidder's conditional or revocable
terms in the offer.
30. CONDITIONAL BID Unless the Bid Specifications provides
otherwise, a Bid is not rendered non -responsive if the Bidder specifies
that the award will be accepted only on all or a specified group of
items or Product included in the specification. It is understood that
nothing herein shall be deemed to change or alter the method of award
contained in the Bid Documents.
31. CLARIFICATIONS / REVISIONS Prior to award, the
Commissioner reserves the right to seek clarifications, request Bid
revisions, or to request any information deemed necessary for proper
evaluation of Bids from all Bidders deemed to be eligible for Contract
award. Failure to provide requested information may result in
rejection of the Bid.
32. PROMPT PAYMENT DISCOUNTS While prompt payment
discounts will not be considered in determining the low Bid, the
Commissioner may consider any prompt payment discount in
resolving Bids which are otherwise tied. However, any notation
indicating that the price is net, (e.g., net 30 days), shall be understood
to mean only that no prompt payment discount is offered by the
Bidder. The imposition of service, interest, or other charges, except
pursuant to the provisions of Article 11-A of the State Finance Law,
which are applicable in any case, may render the Bid non -responsive
and may be cause for its rejection.
33. EQUIVALENT OR IDENTICAL BIDS In the event two
offers are found to be substantially equivalent, price shall be the basis
for determining the award recipient. If two or more Bidders submit
substantially equivalent Bids as to pricing or other factors, the decision
of the Commissioner to award a Contract to one or more of such
Bidders shall be final.
34. PERFORMANCE AND RESPONSIBILITY
QUALIFICATIONS The Commissioner reserves the right to
investigate or inspect at any time whether or not the Product, services,
qualifications or facilities offered by the Bidder/Contractor meet the
requirements set forth in the Bid Specifications/Contract or as set forth
during Contract negotiations. Contractor shall at all times during the
Contract term remain responsible and responsive. A
Bidder/Contractor must be prepared, if requested by the
Commissioner, to present evidence of legal authority to do business in
New York State, integrity, experience, ability, prior performance,
organizational and financial capacity as well as where applicable, a
statement as to supply, plant, machinery and capacity of the
manufacturer or source for the production, distribution and servicing
of the Product offered/Bid. If the Commissioner determines that the
conditions and terms of the Bid Documents, Bid Specifications or
Contract are not complied with, or that items, services or Product
____proposed_to be_ fumished_do . _not_ meet_ the_ specified_regmrements, or _
that the legal authority, integrity experience, ability, prior
performance, organization and financial capacity or facilities are not
satisfactory, the Commissioner may reject such Bid or terminate the
Contract.
35. DISQUALIFICATION FOR PAST PERFORMANCE AND
FINDINGS OF NON -RESPONSIBILITY Bidder may be
disqualified from receiving awards if Bidder, or anyone in Bidder's
employment, has previously failed to perform satisfactorily in
connection with public Bidding or contracts or is deemed non -
responsible.
36. QUANTITY CHANGES PRIOR TO AWARD The
Commissioner reserves the right, at any time prior to the award of a
specific quantity Contract, to alter in good faith the quantities listed in
the Bid Specifications. In the event such right is exercised, the lowest
responsible_ Bidder meeting Bid Specifications will be advised of the
revised quantities and afforded an opportunity to extend or reduce its
Bid price in relation to the changed quantities. Refusal by the low
Bidder to so extend or reduce its Bid price may result in the rejection
of its Bid and the award of such Contract to the lowest responsible
Bidder who accepts the revised qualifications.
37. TIMEFRAME FOR OFFERS The Commissioner reserves the
right to make awards within sixty (60) days after the date of the Bid
opening or such other period of time as set forth in the Bid Documents,
during which period, Bids must remain firm and cannot e withdrawn.
Pursuant to Section 163(9)(e) of the State Finance Law and Section 2-
205 of the Uniform Commercial Code when applicable, where an
award is not made within the sixty (60) day period or other time
specified as set forth in the Bid Documents, the Bids shall remain firm
until such later time as either a Contract is awarded or the Bidder
delivers to the Commissioner written notice of the withdrawal of its
Bid. Any Bid which expressly states therein that acceptance must be
made within a shorter specified time, may at the sole discretion of the
Commissioner, be accepted or rejected.
TERMS & CONDITIONS
38. CONTRACT CREATION / EXECUTION Except for
contracts governed by Article 11-B of the State Finance Law, subject
to and upon receipt of all required approvals as set forth in the Bid
Specifications a Contract shall be deemed executed and created with
the successful Bidder(s), upon the Commissioner's mailing or
electronic communication to the address on the Bid/Contract of: (i)
the final Contract Award Notice; (ii) a fully executed Contract; or (iii)
a Purchase Order authorized by the Commissioner.
39. PARTICIPATION IN CENTRALIZED CONTRACTS The
following shall not limit or inhibit the OGS Commissioner's authority
under State Finance Law, Section 163 (10) (e) (Piggybacking):
July 2006 8
GENERAL SPECIFICATIONS
APPENDIX B
a. Agencies All State Agencies may utilize and purchase under any
state Centralized Contract let by the Commissioner, unless the Bid
Documents limit purchases to specific State Agencies.
b. Non -State Agency Authorized Users Authorized Users other
than State Agencies are permitted to make purchases through state
Centralized Contracts where permitted by law, the Contract or the
Commissioner.
c. Voluntary Extension Purchase Orders issued against a State
Centralized Contract by any Authorized User not provided for in the
Bid Specifications shall be honored by the Contractor at its discretion
and_only with the_approval_of theOGS Commissioner and_any other___
approvals required by law. Contractors are encouraged to voluntarily
extend service Contracts to those additional entities authorized to
utilize commodity Contracts under Section 163 (3) (iv) of the State
Finance Law.
d. Responsibility for Performance Participation in state
Centralized Contracts by Authorized Users is permitted upon the
following conditions: (i) the responsibility with regard to performance
of any contractual obligation, covenant, condition or term thereunder
by any Authorized User other than State Agencies shall be borne and
is expressly assumed by such Authorized User and not by the State;
(ii) a breach of the Contract by any particular Authorized User shall
neither constitute nor be deemed a breach of the Contract as a whole
which shall remain in full force and effect, and shall not affect the
validity of the Contract nor the obligations of the Contractor
thereunder respecting non -breaching Authorized Users, whether State
or otherwise; (iii) for a breach by an Authorized User other than a
State Agency, the State specifically and expressly disclaims any and
all liability for such breach; and (iv) each non -state agency Authorized
User and Contractor guarantees to save the State, its officers, agents
and employees harmless from any liability that may be or is imposed
by their failure to perform in accordance with its obligations under the
Contract.
e. Contract Migration Authorized Users holding individual
Contracts with a Contractor at the time that Contractor is awarded a
Centralized Contract for the same Products or services shall be
permitted to migrate to that Centralized Contract effective with its
commencement date. Such migration shall not operate to diminish,
alter or eliminate any right that the Authorized User otherwise had
under the terms and conditions of their individual Contract.
40. MODIFICATION OF CONTRACT TERMS The terms and
conditions set forth in the Contract shall govern all transactions by
Authorized User(s) under this Contract. The Contract may only be
modified or amended upon mutual written agreement of the
Commissioner and Contractor.
The Contractor may, however, offer Authorized User(s) more
advantageous pricing, payment, or other terms and conditions than
those set forth in the Contract. In such event, a copy of such terms
shall be furnished to the Authorized User(s) and Commissioner by the
Contractor at the time of such offer.
Other than where such terms are more advantageous for the
Authorized User(s) than those set forth in the Contract, no alteration or
modification of the terms of the Contract, including substitution of
Product, shall be valid or binding against Authorized User(s) unless
authorized by the Commissioner or specified in the Contract Award
Notification. No such alteration or modification shall be made by
unilaterally affixing such terms to Product upon delivery (including,
but not limited to, attachment or inclusion of standard pre-printed
order forms, product literature, "shrink wrap" terms accompanying
software upon delivery, or other documents) or by incorporating such
terms onto order forms, purchase orders or other documents forwarded
by the Contractor for payment, notwithstanding Authorized User's
subsequent acceptance of Product, or that Authorized User has
subsequently processed such document for approval or payment.
41. SCOPE CHANGES The Commissioner reserves the right,
unilaterally, to require, by written order, changes by altering, adding to
or deducting from the Bid Specifications, such changes to be within
the general scope of the Contract. The Commissioner may make an
equitable adjustment in the Contract price or delivery date if the
change affects the cost or time of performance. Such equitable
adjustments require the consent of the Contractor which consent shall___
not be unreasonably withheld.
42. ESTIMATED / SPECIFIC QUANTITY CONTRACTS
Estimated quantity contracts are expressly agreed and understood to be
made for only the quantities, if any, actually ordered during the
Contract term. No guarantee of any quantity(s) is implied or given.
Purchases by Authorized Users from Contracts for services and
technology are voluntary.
With respect to any specific quantity stated in the contract, the
Commissioner reserves the right after award to order up to 20% more
or less (rounded to the next highest whole number) than the specific
quantities called for in the Contract. Notwithstanding the foregoing,
the Commissioner may purchase greater or lesser percentages of
Contract quantities should the Commissioner and Contractor so agree.
Such agreement may include an equitable price adjustment.
43. EMERGENCY CONTRACTS In the event that a disaster
emergency is declared by Executive Order under Section 28 of Article
2-B of the Executive Law, or the Commissioner determines pursuant
to his/her authority under Section 163 (10) (b) of the State Finance
Law that an emergency exists requiring the prompt and immediate
delivery of Product, the Commissioner reserves the right to obtain
such Product from any source, including but not limited to this
Contract(s), as the Commissioner in his/her sole discretion determines
will meet the needs of such emergency. Contractor shall not be
entitled to any claim or lost profits for Product procured from other
sources pursuant to this paragraph. The reasons underlying the finding
that an emergency exists shall be included in the procurement record.
44. PURCHASE ORDERS Unless otherwise authorized in writing
by the Commissioner, no Product is to be delivered or furnished by
Contractor until transmittal of an official Purchase Order from the
Authorized User. Unless terminated or cancelled pursuant to the
authority vested in the Commissioner, Purchase Orders shall be
effective and binding upon the Contractor when placed in the mail or
electronically transmitted prior to the termination of the contract
period, addressed to the Contractor at the address for receipt of orders
set forth in the Contract or in the Contract Award Notification.
All Purchase Orders issued pursuant to Contracts let by the
Commissioner must bear the appropriate Contract number and, if
necessary, required State approvals. As deemed necessary, the
Authorized User may confirm pricing and other Product information
with the Contractor prior to placement of the Purchase Order. The
State reserves the right to require any other inforniation from the
Contractor which the State deems necessary in order to complete any
Purchase Order placed under the Contract. Unless otherwise specified,
all Purchase Orders against Centralized Contracts will be placed by
Authorized Users directly with the Contractor and any discrepancy
between the terms stated on the vendor's order form, confirmation or
acknowledgment, and the Contract terms shall be resolved in favor of
July 2006
9
GENERAL SPECIFICATIONS
APPENDIX B
the terms most favorable to the Authorized User. Should an
Authorized User add written terms and conditions to the Purchase
Order that conflict with the terms and conditions of the Contract, the
Contractor has the option of rejecting the Purchase Order within five
business days of its receipt but shall first attempt to negotiate the
additional written terms and conditions in good faith with the
Authorized User, or fulfill the Purchase Order. Notwithstanding the
above, the Authorized User reserves the right to dispute any
discrepancies arising from the presentation of additional terms and
conditions with the Contractor.
If, with respect to an Agency Specific Contract let by the OGS
Commissioner, a Purchase Order is not received by the Contractor
within two weeks after the issuance of a Contract Award Notification,
it is the responsibility of the Contractor to request in writing that the
appropriate Authorized User forward a Purchase Order. If, thereafter,
a Purchase Order is not received within a reasonable period of time,
the Contractor shall promptly notify in writing the appropriate
purchasing officer in OGS. Failure to timely notify such officer may,
in the discretion of the OGS Commissioner and without cost to the
State, result in the cancellation of such requirement by the OGS
Commissioner with a corresponding reduction in the Contract quantity
and price.
45. PRODUCT DELIVERY Delivery must be made as ordered to
the address specified on the Purchase Order and in accordance with the
terms of the Contract or Contract Award Notice. Unless otherwise
specified in the Bid Documents, delivery shall be made within thirty
calendar days after receipt of a Purchase Order by the Contractor. The
decision of the Commissioner as to compliance with delivery terms
shall be final. The burden of proof for delay in receipt of Purchase
Order shall rest with the Contractor. In all instances of a potential or
actual delay in delivery, the Contractor shall immediately notify the
Commissioner and the Authorized User, and confirm in writing the
explanation of the delay, and take appropriate action to avoid any
subsequent late deliveries. Any extension of time for delivery must be
requested in writing by the Contractor and approved in writing by the
Authorized User. Failure to meet such delivery time schedule may be
grounds for cancellation of the order or, in the Commissioner's
discretion, the Contract.
46. WEEKEND AND HOLIDAY DELIVERIES Unless otherwise
specified in the Bid Specifications or by an Authorized User,
deliveries will be scheduled for ordinary business hours, Monday
through Friday (excluding legal holidays observed by the State of New
York). Deliveries may be scheduled by mutual agreement for
Saturdays, Sundays or legal holidays observed by the State of New
York where the Product is for daily consumption, an emergency exists,
the delivery is a replacement, delivery is late, or other reasonable
circumstance in which event the convenience of the Authorized User
shall govern.
47. SHIPPING/RECEIPT OF PRODUCT
a. Packaging Tangible Product shall be securely and properly
packed for shipment, storage and stocking in appropriate, clearly
labeled shipping containers and according to accepted commercial
practice, without any extra charges for packing materials, cases or
other types of containers. The container shall become and remain the
property of the Authorized User unless otherwise specified in the
Contract documents.
b. Shipping Charges Unless otherwise stated in the Bid
Specifications, all deliveries shall be deemed to be freight on board
(F.O.B.) destination tailgate delivery at the dock of the Authorized
User. Unless otherwise agreed, items purchased at a price F.O.B.
Shipping point plus transportation charges shall not relieve the
Contractor from responsibility for safe and proper delivery
notwithstanding the Authorized User's payment of transportation
charges. Contractor shall be responsible for ensuring that the Bill of
Lading states "charges prepaid" for all shipments.
c. Receipt of Product The Contractor shall be solely responsible
for assuring that deliveries are made to personnel authorized to accept
delivery on behalf of the Authorized User. Any losses resulting from
the Contractor's failure to deliver Product to authorized personnel
shall be borne exclusively by the Contractor.
48. TITLE AND RISK OF LOSS Notwithstanding the form of
shipment, title or other property interest, risk of loss shall not pass
from the Contractor to the Authorized User until the Products have
been received, inspected and accepted by the receiving entity.
Acceptance shall occur within a reasonable time or in accordance with
such other defined acceptance period as may be specified in the Bid
Specifications or Purchase Order. Mere acknowledgment by
Authorized User personnel of the delivery or receipt of goods (e.g.,
signed bill of lading) shall not be deemed or construed as acceptance
of the Products received. Any delivery of Product that is substandard
or does not comply with the Bid Specifications or Contract terms and
conditions, may be rejected or accepted on an adjusted price basis, as
determined by the Commissioner.
49. RE -WEIGHING PRODUCT Deliveries are subject to re -
weighing at the point of destination by the Authorized User. If
shrinkage occurs which exceeds that normally allowable in the trade,
the Authorized User shall have the option to require delivery of the
difference in quantity or to reduce the payment accordingly. Such
option shall be exercised in writing by the Authorized User.
50. PRODUCT SUBSTITUTION In the event a specified
manufacturer's Product listed in the Contract becomes unavailable or
cannot be supplied by the Contractor for any reason (except as
provided for in the Savings/Force Majeure Clause) a Product deemed
in writing by the Commissioner to be equal to or better than the
specified Product must be substituted by the Contractor at no
additional cost or expense to the Authorized User. Unless otherwise
specified, any substitution of Product prior to the Commissioner's
written approval may be cause for cancellation of Contract.
51. REJECTED PRODUCT When Product is rejected, it must be
removed by the Contractor from the premises of the Authorized User
within ten calendar days of notification of rejection by the Authorized
User. Upon notification of rejection, risk of loss of rejected or non-
conforming Product shall remain with Contractor. Rejected items not
removed by the Contractor within ten calendar days of notification
shall be regarded as abandoned by the Contractor, and the Authorized
User shall have the right to dispose of Product as its own property.
The Contractor shall promptly reimburse the Authorized User for any
and all costs and expenses incurred in storage or effecting removal or
disposition after the ten -calendar day period.
52. INSTALLATION Where installation is required, Contractor
shall be responsible for placing and installing the Product in the
required locations. All materials used in the installation shall be of
good quality and shall be free from any and all defects that would mar
the appearance of the Product or render it structurally unsound.
Installation includes the furnishing of any equipment, rigging and
materials required to install or place the Product in the proper location.
The Contractor shall protect the site from damage for all its work and
shall repair damages or injury of any kind caused by the Contractor, its
employees, officers or agents. If any alteration, dismantling or
excavation, etc. is required to effect installation, the Contractor shall
thereafter promptly restore the structure or site. Work shall be
July 2006
10
GENERAL SPECIFICATIONS
APPENDIX B
performed to cause the least inconvenience to the Authorized User(s)
and with proper consideration for the rights of other Contractors or
workers. The Contractor shall promptly perform its work and shall
coordinate its activities with those of other Contractors. The
Contractor shall clean up and remove all debris and rubbish from its
work as required or directed. Upon completion of the work, the
building and surrounding area of work shall be left clean and in a neat,
unobstructed condition, and everything in satisfactory repair and order.
53. REPAIRED OR REPLACED PARTS / COMPONENTS
Where the Contractor is required to repair, replace or substitute
Product or parts or components of the Product under the Contract, the
repaired, replaced or substituted Products shall be subject to all terms
and conditions for new parts and components set forth in the Contract
including Warranties, as set forth in the Additional Warranties Clause
herein. Replaced or repaired Product or parts and components of such
Product shall be new and shall, if available, be replaced by the original
manufacturer's component or part. Remanufactured parts or components
meeting new Product standards may be permitted by the Commissioner or
Authorized User. Before installation, all proposed substitutes for the
original manufacturer's installed parts or components must be approved
by the Authorized User. The part or component shall be equal to or of
better quality than the original part or component being replaced.
54. ON -SITE STORAGE With the written approval of the
Authorized User, materials, equipment or supplies may be stored at the
Authorized User's site at the Contractor's sole risk.
55. EMPLOYEES, SUBCONTRACTORS & AGENTS All
employees, Subcontractors or agents performing work under the Contract
must be trained staff or technicians who meet or exceed the professional,
technical and training qualifications set forth in the Bid Specifications or
the Bid Documents, whichever is more restrictive, and must comply with
all security and administrative requirements of the Authorized User. The
Commissioner reserves the right to conduct a security background check
or otherwise approve any employee, Subcontractor or agent furnished by
Contractor and to refuse access to or require replacement of any personnel
for cause based on, including but not limited to, professional, technical or
training qualifications, quality of work or change in security status or non-
compliance with Authorized User's security or other requirements. Such
approval shall not relieve the Contractor of the obligation to perform all
work in compliance with the Contract terms. The Commissioner reserves
the right to reject and/or bar from the facility for cause any employee,
Subcontractor, or agents of the Contractor.
56. ASSIGNMENT The Contractor shall not assign, transfer,
convey, sublet, or otherwise dispose of the contract or its right, title or
interest therein, or its power to execute such contract to any other
person, company, firm or corporation in performance of the contract
without the prior written consent of the Commissioner or Authorized
User (as applicable). Failure to obtain consent to assignment from the
Authorized User shall revoke and annul such Contract.
Notwithstanding the foregoing, the State shall not hinder, prevent or
affect assignment of money by a Contractor for the benefit of its
creditors. Prior to a consent to assignment of monies becoming
effective, the Contractor shall file a written notice of such monies
assignment(s) with the Comptroller. Prior to a consent to assignment
of a Contract, or portion thereof, becoming effective, the Contractor
shall submit the request to assignment to the Commissioner and seek
written agreement from the Commissioner which will be filed with the
Comptroller. The Commissioner reserves the right to reject any
proposed assignee in his/her discretion.
Upon notice to the Contractor, the Contract may be assigned without
the consent of the Contractor to another State Agency or subdivision
of the State pursuant to a governmental reorganization or assignment
of functions under which the functions are transferred to a successor
Agency or to another Agency that assumes OGS responsibilities for
the Contract.
57. SUBCONTRACTORS AND SUPPLIERS The Commissioner
reserves the right to reject any proposed Subcontractor or supplier for
bona fide business reasons, which may include, but are not limited to:
they are on the Department of Labor's list of companies with which
New York State cannot do business; the Commissioner determines that
the company is not qualified; the Commissioner determines that the
company is not responsible; the company has previously provided
unsatisfactory work or services; the company failed to solicit minority
and women's business enterprises (M/WBE) Bidders as required by
prior Contracts.
58. PERFORMANCE / BID BOND The Commissioner reserves
the right to require a Bidder or Contractor to furnish without additional
cost, a performance, payment or Bid bond or negotiable irrevocable
letter of credit or other form of security for the faithful performance of
the Contract. Where required, such bond or other security shall be in
the form prescribed by the Commissioner.
59. SUSPENSION OF WORK The Commissioner, in his/her sole
discretion, reserves the right to suspend any or all activities under this
Contract, at any time, in the best interests of the Authorized User. In
the event of such suspension, the Contractor will be given a formal
written notice outlining the particulars of such suspension. Examples
of the reason for such suspension include, but are not limited to, a
budget freeze or reduction on State spending, declaration of
emergency, contract compliance issues or other such circumstances.
Upon issuance of such notice, the Contractor is not to accept any
Purchase Orders, and shall comply with the suspension order. Activity
may resume at such time as the Commissioner issues a formal written
notice authorizing a resumption of performance under the Contract.
An Authorized User may issue a formal written notice for the
suspension of work for which it has engaged the Contractor for
reasons specified in the above paragraph. The written notice shall set
forth the reason for such suspension and a copy of the written notice
shall be provided to the Commissioner.
60. TERMINATION
a. For Cause: For a material breach that remains uncured for more
than thirty (30) days or other specified period after written notice to the
Contractor, the Contract or Purchase Order may be terminated by the
Commissioner or Authorized User at the Contractor's expense where
Contractor becomes unable or incapable of performing, or meeting any
requirements or qualifications set forth in the Contract, or for non-
performance, or upon a determination that Contractor is non -
responsible. Such termination shall be upon written notice to the
Contractor. In such event, the Commissioner or Authorized User may
complete the contractual requirements in any manner it may deem
advisable and pursue available legal or equitable remedies for breach.
b. For Convenience: By written notice, this Contract may be
terminated at any time by the State for convenience upon sixty (60) days
written notice or other specified period without penalty or other early
termination charges due. Such termination of the Contract shall not
affect any project or Purchase Order that has been issued under the
Contract prior to the date of such termination. If the Contract is
terminated pursuant to this subdivision, the Authorized User shall
remain liable for all accrued but unpaid charges incurred through the
date of the termination. Contractor shall use due diligence and provide
any outstanding deliverables.
July 2006 11
GENERAL SPECIFICATIONS
APPENDIX B
c. For Violation of the Sections 139-j and 139-k of the State
Finance Law: The Commissioner reserves the right to terminate the
Contract in the event it is found that the certification filed by the
Bidder in accordance with Section 139-k of the State Finance Law was
intentionally false or intentionally incomplete. Upon such finding, the
Commissioner may exercise its termination right by providing written
notification to the Contractor in accordance with the written
notification terms of the Contract.
d. For Violation of Revised Tax Law 5a: The Commissioner
reserves the right to terminate the contract in the event it is found that
the certification filed by the Contractor in accordance with §5-a of the
Tax Law is not timely filed during the term of the Contract or the
certificationfurnished was intentionally_ _false_—or_intentionally_:.
incomplete. Upon such finding, the Commissioner may exercise its
termination right by providing written notification to the Contractor.
61. SAVINGS/FORCE MAJEURE A force majeure occurrence is
an event or effect that cannot be reasonably anticipated or controlled.
Force majeure includes, but is not limited to, acts of God, acts of war,
acts of public enemies, strikes, fires, explosions, actions of the
elements, floods, or other similar causes beyond the control of the
Contractor or the Commissioner in the performance of the Contract
which non- performance, by exercise of reasonable diligence, cannot
be prevented. Contractor shall provide the Commissioner with written
notice of any force majeure occurrence as soon as the delay is known.
Neither the Contractor nor the Commissioner shall be liable to the
other for any delay in or failure of performance under the Contract due
to a force majeure occurrence. Any such delay in or failure of
performance shall not constitute default or give rise to any liability for
damages. The existence of such causes of such delay or failure shall
extend the period for performance to such extent as determined by the
Contractor and the Commissioner to be necessary to enable complete
performance by the Contractor if reasonable diligence is exercised
after the cause of delay or failure has been removed.
Notwithstanding the above, at the discretion of the Commissioner
where the delay or failure will significantly impair the value of the
Contract to the State or to Authorized Users, the Commissioner may:
a. Accept allocated performance or deliveries from the Contractor.
The Contractor, however, hereby agrees to grant preferential treatment
to Authorized Users with respect to Product subjected to allocation;
and/or
b. Purchase from other sources (without recourse to and by the
Contractor for the costs and expenses thereof) to replace all or part of
the Products which are the subject of the delay, which purchases may
be deducted from the Contract quantities without penalty or liability to
the State; or
c. Terminate the Contract or the portion thereof which is subject to
delays, and thereby discharge any unexecuted portion of the Contract
or the relative part thereof.
In addition, the Commissioner reserves the right, in his/her sole
discretion, to make an equitable adjustment in the Contract terms
and/or pricing should extreme and unforeseen volatility in the
marketplace affect pricing or the availability of supply. "Extreme and
unforeseen volatility in the marketplace" is defined as market
circumstances which meet the following criteria: (i) the volatility is
due to causes outside the control of Contractor; (ii) the volatility
affects the marketplace or industry, not just the particular Contract
source of supply; (iii) the effect on pricing or availability of supply is
substantial; and (iv) the volatility so affects Contractor's performance
that continued performance of the Contract would result in a
substantial loss.
62. CONTRACT BILLINGS Contractor and the
distributors/resellers designated by the Contractor, if any, shall provide
complete and accurate billing invoices to each Authorized User in
order to receive payment. Billings for Authorized Users must contain
all information required by the Contract and the State Comptroller.
The State Comptroller shall render payment for Authorized User
purchases, and such payment shall be made in accordance with
ordinary State procedures and practices. Payment of Contract
purchases made by Authorized Users, other than Agencies, shall be
billed directly by Contractor on invoices/vouchers, together with
__ complete_and_accurate_supporting_documentation.. as_required_by_the___ ._.
Authorized User.
Submission -of an invoice and payment thereof shall not preclude the
Commissioner from reimbursement or demanding a price adjustment
in any case where the Product delivered is found to deviate from the
terms and conditions of the Contract or where the billing was
inaccurate.
Contractor shall provide, upon request of the Commissioner, any and
all information necessary to verify the accuracy of the billings. Such
information shall be provided in the format requested by the
Commissioner and in a media commercially available from the
Contractor. The Commissioner may direct the Contractor to provide
the information to the State Comptroller or to any Authorized User of
the Contract.
63. DEFAULT — AUTHORIZED USER
a. Breach of Authorized User Not Breach of Centralized Contract.
An Authorized User's breach shall not be deemed a breach of the
Centralized Contract, rather it shall be deemed a breach of the
Authorized User's performance under the terms and conditions of the
Centralized Contract.
b. Failure to Make Payment. In the event a participating Authorized
User fails to make payment to the Contractor for Products delivered,
accepted and properly invoiced, within 60 days of such delivery and
acceptance, the Contractor may, upon 10 days advance written notice
to both the Commissioner and the Authorized User's purchasing
official, suspend additional shipments of Product or provision of
services to such entity until such time as reasonable arrangements have
been made and assurances given by such entity for current and future
Contract payments.
c. Notice of Breach. Notwithstanding the foregoing, the Contractor
shall, at least 10 days prior to declaring a breach of Contract by any
Authorized User, by certified or registered mail, notify both the
Commissioner and the purchasing official of the breaching Authorized
User of the specific facts, circumstances and grounds upon which a
breach will be declared.
d. It is understood, however, that if the Contractor's basis for
declaring a breach is insufficient, the Contractor's declaration of
breach and failure to service an Authorized User shall constitute a
breach of its Contract and the Authorized User may thereafter seek any
remedy available at law or equity.
64. INTEREST ON LATE PAYMENTS
a. State Agencies The payment of interest on certain payments due
and owed by Agency may be made in accordance with Article 11-A of
the State Finance Law (SFL §179-d et. Seq.) and Title 2 of the New
York Code of Rules and Regulations, Part 18 (Implementation of
Prompt Payment Legislation -2 NYCRR § 18.1 et seq.).
July 2006
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GENERAL SPECIFICATIONS
APPENDIX B
b. By Non -State Agencies The terms of Article 11-A apply only to
procurements by and the consequent payment obligations of Agencies.
Neither expressly nor by any implication is the statute applicable to
Non -State Authorized Users. Neither OGS nor the State Comptroller
is responsible for payments on any purchases made by a Non -State
Agency Authorized User.
c. By Contractor Should the Contractor be liable for any payments
to the State hereunder, interest, late payment charges and collection fee
charges will be determined and assessed pursuant to Section 18 of the
State Finance Law.
65. REMEDIES. FOR .BREACH Jti&understoodancLagreedthat_
all rights and remedies afforded below shall be in addition to all
remedies or actions otherwise authorized or permitted by law:
a. Cover/Substitute Performance In the event of Contractor's
material breach, the Commissioner may, with or without formally
Bidding: (i) Purchase from other sources; or (ii) If the Commissioner
is unsuccessful after making reasonable attempts, under the
circumstances then existing, to timely obtain acceptable service or
acquire replacement Product of equal or comparable quality, the
Commissioner may acquire acceptable replacement Product of lesser
or greater quality.
Such purchases may, in the discretion of the Commissioner, be
deducted from the Contract quantity and payments due Contractor.
b. Withhold Payment In any case where a question of non-
performance by Contractor arises, payment may be withheld in whole
or in part at the discretion of the Commissioner. Should the amount
withheld be finally paid, a cash discount originally offered may be
taken as if no delay in payment had occurred.
c. Bankruptcy In the event that the Contractor files a petition
under the U.S. Bankruptcy Code during the term of this Centralized
Contract, Authorized Users may, at their discretion, make application
to exercise its right to set-off against monies due the Debtor or, under
the Doctrine of Recoupment, credit the Authorized User the amounts
owed by the Contractor arising out of the same transactions.
d. Reimbursement of Costs Incurred The Contractor agrees to
reimburse the Authorized User promptly for any and all additional
costs and expenses incurred for acquiring acceptable services, and/or
replacement Product. Should the cost of cover be less than the
Contract price, the Contractor shall have no claim to the difference.
The Contractor covenants and agrees that in the event suit is
successfully prosecuted for any default on the part of the Contractor,
all costs and expenses expended or incurred by the Authorized User in
connection therewith, including reasonable attomey's fees, shall be
paid by the Contractor.
Where the Contractor fails to timely deliver pursuant to the guaranteed
delivery terms of the Contract, the ordering Authorized User may rent
substitute equipment temporarily. Any sums expended for such rental
shall, upon demand, be reimbursed to the Authorized User promptly
by the Contractor or deducted by the Authorized User from payments
due or to become due the Contractor on the same or another
transaction.
e. Deduction/Credit Sums due as a result of these remedies may
be deducted or offset by the Authorized User from payments due, or to
become due, the Contractor on the same or another transaction. If no
deduction or only a partial deduction is made in such fashion the
Contractor shall pay to the Authorized User the amount of such claim
or portion of the claim still outstanding, on demand. The
Commissioner reserves the right to determine the disposition of any
rebates, settlements, restitution, liquidated damages, etc., which arise
from the administration of the Contract.
66. ASSIGNMENT OF CLAIM Contractor hereby assigns to the
State any and all its claims for overcharges associated with this
Contract which may arise under the antitrust laws of the United States,
15 USC Section 1, et. seq. and the antitrust laws of the State of New
York, General Business Law Section 340, et. seq.
67. TOXIC SUBSTANCES Each Contractor fumishing a toxic
substance as defined by Section 875 of the Labor Law, shall provide
__such.Authorized.User_with not lessthan,two,copiesof a.material.safety_.
data sheet, which sheet shall include for each such substance the
information outlined in Section 876 of the Labor Law.
Before any chemical product is used or applied on or in any building, a
copy of the product label and Material Safety Data Sheet must be
provided to and approved by the Authorized User agency representative.
68. INDEPENDENT CONTRACTOR It is understood and agreed
that the legal status of the Contractor, its agents, officers and employees
under this Contract is that of an independent Contractor, and in no manner
shall they be deemed employees of the Authorized User, and therefore are
not entitled to any of the benefits associated with such employment. The
Contractor agrees, during the term of this Contract, to maintain at
Contractor's expense those benefits to which its employees would
otherwise be entitled by law, including health benefits, and all necessary
insurance for its employees, including worker's compensation, disability
and unemployment insurance, and to provide the Authorized User with
certification of such insurance upon request. The Contractor remains
responsible for all applicable federal, state and local taxes, and all FICA
contributions.
69. SECURITY Contractor warrants, covenants and represents that
it will comply fully with all security procedures of the Authorized
User(s) in performance of the Contract including but not limited to
physical, facility, documentary and cyber security rules, procedures
and protocols.
70. COOPERATION WITH THIRD PARTIES The Contractor
shall be responsible for fully cooperating with any third party,
including but not limited to other Contractors or Subcontractors of the
Authorized User, as necessary to ensure delivery of Product or
coordination of performance of services.
71. CONTRACT TERM - RENEWAL In addition to any stated
renewal periods in the Contract, any Contract or unit portion thereof
let by the Commissioner may be extended by the Commissioner for an
additional period(s) of up to one year with the written concurrence of
the Contractor and Comptroller. Such extension may be exercised on
a month to month basis or in other stated periods of time during the
one year extension.
72. ADDITIONAL WARRANTIES Where Contractor, product
manufacturer or service provider generally offers additional or more
advantageous warranties than set forth below, Contractor shall offer or
pass through any such warranties to Authorized Users. Contractor
hereby warrants and represents:
a. Product Performance Contractor warrants and represents that
Products delivered pursuant to this Contract conform to the
manufacturer's specifications, performance standards and
documentation, and the documentation fully describes the proper
procedure for using the Products.
July 2006
13
GENERAL SPECIFICATIONS
APPENDIX B
b. Title and Ownership Warranty Contractor warrants, represents
and conveys (i) full ownership, clear title free of all liens, or (ii) the
right to transfer or deliver perpetual license rights to any Products
transferred to Authorized User under this Contract. Contractor shall
be solely liable for any costs of acquisition associated therewith.
Contractor fully indemnifies the Authorized User for any loss,
damages or actions arising from a breach of said warranty without
limitation.
c. Contractor Compliance Contractor represents and warrants to
pay, at its sole expense, for all applicable permits, licenses, tariffs, tolls
and fees to give all notices and comply with all laws, ordinances, rules
and regulations of any governmental entity _in conjunction with the___
performance of obligations under the Contract. Prior to award and
during the Contract term and any renewals thereof, Contractor must
establish to the satisfaction of the Commissioner that it meets or
exceeds all requirements of the Bid/Contract and any applicable laws,
including but not limited to, permits, insurance coverage, licensing,
proof of coverage for worker's compensation, and shall provide such
proof as required by the Commissioner. Failure to do so may
constitute grounds for the Commissioner to cancel or suspend this
Contract, in whole or in part, or to take any other action deemed
necessary by the Commissioner.
d. Product Warranty Unless recycled or recovered materials are
available in accordance with the "Recycled or Recovered Materials"
clause, Product offered shall be standard new equipment, current
model or most recent release of regular stock product with all parts
regularly used with the type of equipment offered; and no attachment
or part has been substituted or applied contrary to the manufacturer's
recommendations and standard practice.
Contractor further warrants and represents that components or
deliverables specified and furnished by or through Contractor shall
individually, and where specified and furnished as a system, be
substantially uninterrupted or error -free in operation and guaranteed
against faulty material and workmanship for the warranty period, or
for a minimum of one (1) year from the date of acceptance, whichever
is longer ("Project warranty period"). During the Project warranty
period, defects in the materials or workmanship of components or
deliverables specified and furnished by or through Contractor shall be
repaired or replaced by Contractor at no cost or expense to the
Authorized User. Contractor shall extend the Project warranty period
for individual component(s), or for the System as a whole, as
applicable, by the cumulative period(s) of time, after notification,
during which an individual component or the System requires
servicing or replacement (down time) or is in the possession of the
Contractor, its agents, officers, Subcontractors, distributors, resellers
or employees ("extended warranty").
Where Contractor, the Independent Software Vendor "ISV," or other
third party manufacturer markets any Project Deliverable delivered by
or through Contractor with a standard commercial warranty, such
standard warranty shall be in addition to, and not relieve the
Contractor from, Contractor's warranty obligations during the project
warranty and extended warranty period(s). Where such standard
commercial warranty covers all or some of the Project warranty or
extended warranty period(s), Contractor shall be responsible for the
coordination during the Project warranty or extended warranty
period(s) with ISV or other third party manufacturer(s) for warranty
repair or replacement of ISV or other third party manufacturer's
Product.
Where Contractor, ISV or other third party manufacturer markets any
Project Deliverable with a standard commercial warranty which goes
July 2006 14
beyond the Project warranty or extended warranty period(s),
Contractor shall notify the Authorized User and pass through the
manufacturer's standard commercial warranty to Authorized User at
no additional charge; provided, however, that Contractor shall not be
responsible for coordinating services under the third party extended
warranty after expiration of the Project warranty and extended
warranty period(s).
e. Replacement Parts Warranty If during the regular or extended
warranty period's faults develop, the Contractor shall promptly repair
or, upon demand, replace the defective unit or component part
affected. All costs for labor and material and transportation incurred
to repair or replace defective Product during the warranty period shall
_be borne solely by_ the Contractor,_and the Stateor_Authorized User _
shall in no event be liable or responsible therefor.
Any part of component replaced by the Contractor under the Contract
warranty shall be replaced at no cost to the Authorized User and
guaranteed for the greater of: a) the warranty period under paragraph (d)
above; or b) if a separate warranty for that part or component is generally
offered by the manufacturer, the standard commercial warranty period
offered by the manufacturer for the individual part or component.
f. Virus Warranty The Contractor represents and warrants that
Licensed Software contains no known viruses. Contractor is not
responsible for viruses introduced at Licensee's site.
g. Date/Time Warranty Contractor warrants that Product(s)
fumished pursuant to this Contract shall, when used in accordance with
the Product documentation, be able to accurately process date/time data
(including, but not limited to, calculating, comparing, and sequencing)
transitions, including leap year calculations. Where a Contractor
proposes or an acquisition requires that specific Products must perform as
a package or system, this warranty shall apply to the Products as a system.
Where Contractor is providing ongoing services, including but not limited
to: i) consulting, integration, code or data conversion, ii) maintenance or
support services, iii) data entry or processing, or iv) contract
administration services (e.g., billing, invoicing, claim processing),
Contractor warrants that services shall be provided in an accurate and
timely manner without interruption, failure or error due to the inaccuracy
of Contractor's business operations in processing date/time data
(including, but not limited to, calculating, comparing, and sequencing)
various date/time transitions, including leap year calculations. Contractor
shall be responsible for damages resulting from any delays, errors or
untimely performance resulting therefrom, including but not limited to the
failure or untimely performance of such services.
This Date/Time Warranty shall survive beyond termination or expiration
of this contract through: a) ninety (90) days or b) the Contractor's or
Product manufacturer/developer's stated date/time warranty term,
whichever is longer. Nothing in this warranty statement shall be
construed to limit any rights or remedies otherwise available under this
Contract for breach of warranty.
h. Workmanship Warranty Contract warrants that all
components or deliverables specified and furnished by or through
Contractor under the Project Definition/Work Order meet the
completion criteria set forth in the Project Definition/Work Order and
any subsequent statement(s) of work, and that services will be
provided in a workmanlike manner in accordance with industry
standards.
i. Survival of Warranties All warranties contained in this
Contract shall survive the termination of this Contract.
GENERAL SPECIFICATIONS
APPENDIX B
73. LEGAL COMPLIANCE Contractor represents and warrants
that it shall secure all notices and comply with all laws, ordinances,
rules and regulations of any governmental entity in conjunction with
the performance of obligations under the Contract. Prior to award and
during the Contract term and any renewals thereof, Contractor must
establish to the satisfaction of the Commissioner that it meets or
exceeds all requirements of the Bid and Contract and any applicable
laws, including but not limited to, permits, licensing, and shall provide
such proof as required by the Commissioner. Failure to comply or
failure to provide proof may constitute grounds for the Commissioner
to cancel or suspend the Contract, in whole or in part, or to take any
other action deemed necessary by the Commissioner. Contractor also
agrees to disclose information and provide affirmations and
_____certifications_to_comply.with_Sections 139;j_and_139 k_ofthe State_
Finance Law.
74. INDEMNIFICATION Contractor shall be fully liable for the
actions of its agents, employees, partners or Subcontractors and shall
fully indemnify and save harmless the Authorized Users from suits,
actions, damages and costs of every name and description relating to
personal injury and damage to real or personal tangible property
caused by any intentional act or negligence of Contractor, its agents,
employees, partners or Subcontractors, without limitation; provided,
however, that the Contractor shall not indemnify for that portion of
any claim, loss or damage arising hereunder due to the negligent act or
failure to act of the Authorized Users.
75. INDEMNIFICATION RELATING TO THIRD PARTY
RIGHTS The Contractor will also indemnify and hold the Authorized
Users harmless from and against any and all damages, expenses
(including reasonable attorneys' fees), claims, judgments, liabilities
and costs that may be finally assessed against the Authorized Users in
any action for infringement of a United States Letter Patent, or of any
copyright, trademark, trade secret or other third party proprietary right
except to the extent such claims arise from the Authorized Users gross
negligence or willful misconduct, provided that the State shall give
Contractor: (i) prompt written notice of any action, claim or threat of
infringement suit, or other suit, (ii) the opportunity to take over, settle
or defend such action, claim or suit at Contractor's sole expense, and
(iii) assistance in the defense of any such action at the. expense of
Contractor.
If usage shall be enjoined for any reason or if Contractor believes that
it may be enjoined, Contractor shall have the right, at its own expense
and sole discretion to take action in the following order of precedence:
(i) to procure for the Authorized User the right to continue Usage (ii)
to modify the service or Product so that Usage becomes non -
infringing, and is of at least equal quality and performance; or (iii) to
replace said service or Product or part(s) thereof, as applicable, with
non -infringing service or Product of at least equal quality and
performance. If the above remedies are not available, the parties shall
terminate the Contract, in whole or in part as necessary and applicable,
provided the Authorized User is given a refund for any amounts paid
for the period during which Usage was not feasible.
The foregoing provisions as to protection from third party rights shall
not apply to any infringement occasioned by modification by the
Authorized User of any Product without Contractor's approval.
In the event that an action at law or in equity is commenced against the
Authorized User arising out of a claim that the Authorized User's use of
the service or Product under the Contract infringes any patent,
copyright or proprietary right, and Contractor is of the opinion that the
allegations in such action in whole or in part are not covered by the
indemnification and defense provisions set forth in the Contract,
Contractor shall immediately notify the Authorized User and the
Office of the Attorney General in writing and shall specify to what
extent Contractor believes it is obligated to defend and indemnify
under the terms and conditions of the Contract. Contractor shall in
such event protect the interests of the Authorized User and secure a
continuance to permit the Authorized User to appear and defend its
interests in cooperation with Contractor, as is appropriate, including
any jurisdictional defenses the Authorized User may have. This
constitutes the Authorized User's sole and exclusive remedy for patent
infringement, or for infringement of any other third party proprietary
right.
76. LIMITATION OF LIABILITY Except as otherwise set forth
in the Indemnification Paragraphs above, the limit of liability shall be
____as follows.
a. Contractor's liability for any claim, loss or liability arising out of,
or connected with the Products and services provided, and whether
based upon default, or other liability such as breach of contract,
warranty, negligence, misrepresentation or otherwise, shall in no case
exceed direct damages in: (i) an amount equal to two (2) times the
charges specified in the Purchase Order for the Products and services,
or parts thereof forming the basis of the Authorized User's claim, (said
amount not to exceed a total of twelve (12) months charges payable
under the applicable Purchase Order) or (ii) one million dollars
($1,000,000), whichever is greater.
b. The Authorized User may retain such monies from any amount
due Contractor as may be necessary to satisfy any claim for damages,
costs and the like asserted against _ the Authorized User unless
Contractor at the time of the presentation of claim shall demonstrate to
the Authorized User's satisfaction that sufficient monies are set aside
by the Contractor in the form of a bond or through insurance coverage
to cover associated damages and other costs.
c. Notwithstanding the above, neither the Contractor nor the
Authorized User shall be liable for any consequential, indirect or
special damages of any kind which may result directly or indirectly
from such performance, including, without limitation, damages
resulting from loss of use or loss of profit by the Authorized User, the
Contractor, or by others.
77. INSURANCE Contractor shall secure and maintain insurance
coverage as specified in the Bid Documents and shall promptly
provide documentation of specified coverages to the Authorized User.
If specified, the Contractor may be required to add the Authorized
User as an additional insured.
THE FOLLOWING CLAUSES PERTAIN TO
TECHNOLOGY & NEGOTIATED CONTRACTS
78. SOFTWARE. LICENSE GRANT Where Product is acquired
on a licensed basis the following shall constitute the license grant:
a. License Scope Licensee is granted a non-exclusive, perpetual
license to use, execute, reproduce, display, perform, or merge the
Product within its business enterprise in the United States up to the
maximum licensed capacity stated on the Purchase Order. Product
may be accessed, used, executed, reproduced, displayed or performed up
to the capacity measured by the applicable licensing unit stated on the
Purchase Order (i.e., payroll size, number of employees, CPU, MIPS,
MSU, concurrent user, workstation). Licensee shall have the right to
use and distribute modifications or customizations of the Product to
and for use by any Authorized Users otherwise licensed to use the
Product, provided that any modifications, however extensive, shall not
diminish Licensor's proprietary title or interest. No license, right or
July 2006 15
GENERAL SPECIFICATIONS
APPENDIX B
interest in any trademark, trade name, or service mark is granted
hereunder.
b. License Term The license term shall commence upon the
License Effective Date, provided, however, that where an acceptance
or trial period applies to the Product, the License Term shall be
extended by the time period for testing, acceptance or trial.
c. Licensed Documentation If commercially available, Licensee
shall have the option to require the Contractor to deliver, at
Contractor's expense: (i) one (1) hard copy and one (1) master
electronic copy of the Documentation in a mutually agreeable format;
(ii) based on hard copy instructions for access by downloading from
the Internet (iii) hard copies_of the_Product Documentation_by _type_of
license in the following amounts, unless otherwise mutually agreed:
• Individual/Named User License - one (1) copy per License
• Concurrent Users - 10 copies per site
• Processing Capacity - 10 copies per site
Software media must be in a format specified by the Authorized User,
without requiring any type of conversion.
Contractor hereby grants to Licensee a perpetual license right to make,
reproduce (including downloading electronic copies of the Product)
and distribute, either electronically or otherwise, copies of Product
Documentation as necessary to enjoy full use of the Product in
accordance with the terms of license.
d. Product Technical Support & Maintenance Licensee shall
have the option of electing the Product technical support and
maintenance ("maintenance") set forth in the Contract by giving
written notice to Contractor any time during the Centralized Contract
term. Maintenance term(s) and any renewal(s) thereof are independent
of the expiration of the Centralized Contract term and will not
automatically renew.
Maintenance shall include, at a minimum, (i) the provision of error
corrections, updates, revisions, fixes, upgrade and new releases to
Licensee, and (ii) Help Desk assistance with locally accessible "800"
or toll free, local telephone service, or alternatively on-line Help Desk
accessibility. Contractor shall maintain the Products so as to provide
Licensee with the ability to utilize the Products in accordance with the
Product documentation without significant functional downtime to its
ongoing business operations during the maintenance term.
Authorized User shall not be required to purchase maintenance for use
of Product, and may discontinue maintenance at the end of any current
maintenance term upon notice to Contractor. In the event that
Authorized User does not initially acquire or discontinues maintenance
of licensed Product, it may, at any time thereafter, reinstate
maintenance for Product without any additional penalties or other
charges, by paying Contractor the amount which would have been due
under the Contract for the period of time that such maintenance had
lapsed, at then current NYS net maintenance rates.
e. Permitted License Transfers As Licensee's business operations
may be altered, expanded or diminished, licenses granted hereunder
may be transferred or combined for use at an alternative or
consolidated site not originally specified in the license, including
transfers between Agencies ("permitted license transfers").
Licensee(s) do not have to obtain the approval of Contractor for
permitted license transfers, but must give thirty (30) days prior written
notice to Contractor of such move(s) and certify in writing that the
Product is not in use at the prior site. There shall be no additional
license or other transfer fees due Contractor, provided that: i) the
maximum capacity of the consolidated machine is equal to the
combined individual license capacity of all licenses running at the
consolidated or transferred site (e.g., named users, seats, or MIPS); or
ii) if the maximum capacity of the consolidated machine is greater
than the individual license capacity being transferred, a logical or
physical partition or other means of restricting access will be
maintained within the computer system so as to restrict use and access
to the Product to that unit of licensed capacity solely dedicated to
beneficial use for Licensee. In the event that the maximum capacity of
the consolidated machine is greater than the combined individual
license capacity of all licenses running at the consolidated or
transferred site, and a logical or physical partition or other means of
.,_._restricting useisnot available,_thefees.due_Contractorshall.not exceed-_-
the fees otherwise payable for a single license for the upgrade
capacity.
f. Restricted Use By Outsourcers / Facilities Management,
Service Bureaus / or Other Third Parties Outsourcers, facilities
management or service bureaus retained by Licensee shall have the
right to use the Product to maintain Licensee's business operations,
including data processing, for the time period that they are engaged in
such activities, provided that: 1) Licensee gives notice to Contractor
of such party, site of intended use of the Product, and means of access;
and 2) such party has executed, or agrees to execute, the Product
manufacturer's standard nondisclosure or restricted use agreement
which executed agreement shall be accepted by the Contractor ("Non -
Disclosure Agreement"); and 3) if such party is engaged in the
business of facility management, outsourcing, service bureau or other
services, such third party will maintain a logical or physical partition
within its computer system so as to restrict use and access to the
program to that portion solely dedicated to beneficial use for Licensee.
In no event shall Licensee assume any liability for third parry's
compliance with the terms of the Non -Disclosure Agreement, nor shall
the Non -Disclosure Agreement create or impose any liabilities on the
State or Licensee.
Any third party with whom a Licensee has a relationship for a state
function or business operation, shall have the temporary right to use
Product (e.g., JAVA Applets), provided that such use shall be limited
to the time period during which the third party is using the Product for
the function or business activity.
g. Archival Back -Up and Disaster Recovery Licensee may use
and copy the Product and related Documentation in connection with:
i) reproducing a reasonable number of copies of the Product for
archival backup and disaster recovery procedures in the event of
destruction or corruption of the Product or disasters or emergencies
which require Licensee to restore backup(s) or to initiate disaster
recovery procedures for its platform or operating systems; ii)
reproducing a reasonable number of copies of the Product and related
Documentation for cold site storage. "Cold Site" storage shall be
defined as a restorable back-up copy of the Product not to be installed
until and after the declaration by the Licensee of a disaster; iii)
reproducing a back-up copy of the Product to run for a reasonable
period of time in conjunction with a documented consolidation or
transfer otherwise allowed herein. "Disaster Recovery" shall be
defined as the installation and storage of Product in ready -to -execute,
back-up computer systems prior to disaster or breakdown which is not
used for active production or development.
h. Confidentiality Restrictions The Product is a trade secret,
copyrighted and proprietary product. Licensee and its employees will
keep the Product strictly confidential, and Licensee will not disclose or
otherwise distribute or reproduce any Product to anyone other than as
July 2006 16
GENERAL SPECIFICATIONS
APPENDIX B
authorized under the terms of Contract. Licensee will not remove or
destroy any proprietary markings of Contractor.
i. Restricted Use by Licensee Except as expressly authorized by
the terms of license, Licensee shall not:
(i) Copy the Product;
(ii) Cause or permit reverse compilation or reverse assembly of
all or any portion of the Product;
(iii) Export the Licensed Software in violation of any U.S.
Department of Commerce export administration regulations.
79. PRODUCT ACCEPTANCE Unless otherwise provided by
mutual agreement of the Authorized User and the Contractor, Authorized
____User(s) shall_have_thirty_(30)_daysfrom_the_date of_deliyery_to_accept_
hardware products and sixty (60) days from the date of delivery to
accept all other Product. Where the Contractor is responsible for
installation, acceptance shall be from completion of installation.
Failure to provide notice of acceptance or rejection or a deficiency
statement to the Contractor by the end of the period provided for under
this clause constitutes acceptance by the Authorized User(s) as of the
expiration of that period. The License Term shall be extended by the
time periods allowed for trial use, testing and acceptance unless the
Commissioner or Authorized User agrees to accept the Product at
completion of trial use.
Unless otherwise provided by mutual agreement of the Authorized User
and the Contractor, Authorized User shall have the option to run testing
on the Product prior to acceptance, such tests and data sets to be
specified by User. Where using its own data or tests, Authorized User
must have the tests or representative set of data available upon
delivery. This demonstration will take the form of a documented
installation test, capable of observation by the Authorized User, and
shall be made part of the Contractor's standard documentation. The
test data shall remain accessible to the Authorized User after
completion of the test.
In the event that the documented installation test cannot be completed
successfully within the specified acceptance period, and the Contractor
or Product is responsible for the delay, Authorized User shall have the
option to cancel the order in whole or in part, or to extend the testing
period for an additional thirty (30) day increment. Authorized User
shall notify Contractor of acceptance upon successful completion of
the documented installation test. Such cancellation shall not give rise
to any cause of action against the Authorized User for damages, Toss of
profits, expenses, or other remuneration of any kind.
If the Authorized User elects to provide a deficiency statement
specifying how the Product fails to meet the specifications within the
testing period, Contractor shall have thirty (30) days to correct the
deficiency, and the Authorized User shall have an additional sixty (60)
days to evaluate the Product as provided herein. If the Product does
not meet the specifications at the end of the extended testing period,
Authorized User, upon prior written notice to Contractor, may then
reject the Product and return all defective Product to Contractor, and
Contractor shall refund any monies paid by the Authorized User to
Contractor therefor. Costs and liabilities associated with a failure of
the Product to perform in accordance with the functionality tests or
product specifications during the acceptance period shall be bome
fully by Contractor to the extent that said costs or liabilities shall not
have been caused by negligent or willful acts or omissions of the
Authorized User's agents or employees. Said costs shall be limited to
the amounts set forth in the Limitation of Liability Clause for any
liability for costs incurred at the direction or recommendation of
Contractor.
80. AUDIT OF LICENSED PRODUCT USAGE Contractor
shall have the right to periodically audit, no more than annually, at
Contractor's expense, use of licensed Product at any site where a copy
of the Product resides provided that: (i) Contractor gives Licensee(s)
at least thirty (30) days advance written notice, (ii) such audit is
conducted during such parry's normal business hours, (iii) the audit is
conducted by an independent auditor chosen on mutual agreement of
the parties. Contractor shall recommend a minimum of three (3)
auditing/accounting firms from which the Licensee will select one (1).
In no case shall the Business Software Alliance (BSA), Software
Publishers Association (SPA), Software and Industry Information
Association (SIIA) or Federation Against Software Theft (FAST) be
used directly or indirectly to conduct audits, or be recommended by
Contracto; (iv)_Contractor_and_Licensee.are_each entitled_to_designate
a representative who shall be entitled to participate, and who shall
mutually agree on audit format, and simultaneously review all
information obtained by the audit. Such representatives also shall be
entitled to copies of all reports, data or information obtained from the
audit; and (v) if the audit shows that such party is not in compliance,
Licensee shall be required to purchase additional licenses or capacities
necessary to bring it into compliance and shall pay for the unlicensed
capacity at the NYS Net Price in effect at time of audit, or if none,
then at the Contractor's U.S. Commercial list price. Once such
additional licenses or capacities are purchased, Licensee shall be
deemed to have been in compliance retroactively, and Licensee shall
have no further liability of any kind for the unauthorized use of the
software.
81. OWNERSHIP/TITLE TO PROJECT DELIVERABLES
a. Definitions
(i) For purposes of this paragraph, "Products." A deliverable
furnished under this Contract by or through Contractor, including
existing and custom Products, including, but not limited to: a)
components of the hardware environment, b) printed materials
(including but not limited to training manuals, system and user
documentation, reports, drawings), whether printed in hard copy or
maintained on diskette, CD, DVD or other electronic media c) third
party software, d) modifications, customizations, custom programs,
program listings, programming tools, data, modules, components, and
e) any properties embodied therein, whether in tangible or intangible
form (including but not limited to utilities, interfaces, templates,
subroutines, algorithms, formulas, source code, object code).
(ii) For purposes of this paragraph, "Existing Products."
Tangible Products and intangible licensed Products that exist prior to
the commencement of work under the Contract. Contractor bears the
burden of proving that a particular product was in existence prior to
the commencement of the Project.
(iii) For purposes of this paragraph, "Custom Products."
Products, preliminary, final or otherwise, which are created or
developed by Contractor, its Subcontractors, partners, employees or
agents for Authorized User under the Contract.
b. Title to Project Deliverables Contractor acknowledges that it
is commissioned by the Authorized User to perform the services
detailed in the Purchase Order. Unless otherwise specified in writing
in the Bid or Purchase Order, the Authorized User shall have
ownership and license rights as follows:
(i) Existing Products:
1. Hardware - Title and ownership of Existing Hardware
Product shall pass to Authorized User upon Acceptance.
2. Software - Title and ownership to Existing Software
Product(s) delivered by Contractor under the Contract that is normally
commercially distributed on a license basis by the Contractor or other
independent software vendor proprietary owner ("Existing Licensed
July 2006 17
GENERAL SPECIFICATIONS APPENDIX B
Product"), whether or not embedded in, delivered or operating in
conjunction with hardware or Custom Products, shall remain with
Contractor or the proprietary owner of other independent software
vendor(s) (ISV). Effective upon acceptance, such Product shall be
licensed to Authorized User in accordance with the Contractor or ISV
owner's standard license agreement, provided, however, that such
standard license, must, at a minimum: (a) grant Authorized User a
non-exclusive, perpetual license to use, execute, reproduce, display,
perform, adapt (unless Contractor advises Authorized User as part of
Contractor's proposal that adaptation will violate existing agreements
or statutes and Contractor demonstrates such to the Authorized User's
satisfaction) and distribute Existing Licensed Product to the
Authorized User up to the license capacity stated in the Purchase
Order or_work order with all license rights_necessary._to fully effect the ..
general business purpose(s) stated in the Bid or Authorized User's
Purchase Order or work order, including the financing assignment
rights set forth in paragraph (c) below; and (b) recognize the State of
New York as the licensee where the Authorized User is a state agency,
department, board, commission, office or institution. Where these
rights are not otherwise covered by the ISV's owner's standard license
agreement, the Contractor shall be responsible for obtaining these
rights at its sole cost and expense. The Authorized User shall
reproduce all copyright notices and any other legend of ownership on
any copies authorized under this paragraph.
(ii.) Custom Products: Effective upon creation of Custom
Products, Contractor hereby conveys, assigns and transfers to
Authorized User the sole and exclusive rights, title and interest in
Custom Product(s), whether preliminary, final or otherwise, including
all trademark and copyrights. Contractor hereby agrees to take all
necessary and appropriate steps to ensure that the Custom Products are
protected against unauthorized copying, reproduction and marketing
by or through Contractor, its agents, employees, or Subcontractors.
Nothing herein shall preclude the Contractor from otherwise using the
related or underlying general knowledge, skills, ideas, concepts,
techniques and experience developed under a Purchase Order, project
definition or work order in the course of Contractor's business.
Authorized User may, by providing written notice thereof to the
Contractor, elect in the alternative to take a non-exclusive perpetual
license to Custom Products in lieu of Authorized User taking exclusive
ownership and title to such Products. In such case, Licensee on behalf
of all Authorized Users shall be granted a non-exclusive perpetual
license to use, execute, reproduce, display, perform, adapt and
distribute Custom Product as necessary to fully effect the general
business purpose(s) as stated in paragraph (b)(i)(2), above.
c. Transfers or Assignments to a Third Party Financing Agent It
is understood and agreed by the parties that a condition precedent to
the consummation of the purchase (s) under the Contract may be the
obtaining of acceptable third party financing by the Authorized User.
The Authorized User shall make the sole determination of the
acceptability of any financing proposal. The Authorized User will
make all reasonable efforts to obtain such financing, but makes no
representation that such financing has been obtained as of the date of
Bid receipt. Where financing is used, Authorized User may assign or
transfer its rights in Licensed Products (existing or custom) to a third
party financing entity or trustee ("Trustee") as collateral where required
by the terms of the financing agreement. Trustee's sole rights with
respect to transferability or use of Licensed Products shall be to
exclusively sublicense to Authorized User all of its Licensee's rights
under the terms and conditions of the License Agreement; provided,
further, however, in the event of any termination or expiration of such
sublicense by reason of payment in full, all of Trustee's rights in such
Licensed Product shall terminate immediately and Authorized User's
prior rights to such Existing Licensed Product shall be revived.
d. Sale or License of Custom Products Involving Tax -Exempt
Financing (i.e., Certificates of Participation - COPS) The Authorized
User's sale or other transfer of Custom Products which were acquired by
the Authorized User using third party, tax-exempt financing may not
occur until such Custom Products are, or become, useable. In the event
that the Contractor wishes to obtain ownership rights to Custom
Product(s), the sale or other transfer shall be at fair market value
determined at the time of such sale or other transfer, and must be pursuant
to a separate written agreement in a form acceptable to the Authorized
User which complies with the terms of this paragraph.
e. Contractor's Obligation with Regard to ISV (Third Party)
Product Where Contractor furnishes Existing Licensed Product(s) as a
Project Deliverable, and sufficient rights necessary to effect the purposes___,_
of this section are not otherwise provided in the Contractor or ISV's
standard license agreement, Contractor shall be responsible for obtaining
from the ISV third party proprietary owner/developer the rights set forth
herein to the benefit of the Authorized User at Contractor's sole cost and
expense.
82. PROOF OF LICENSE The Contractor must provide to each
Licensee who places a Purchase Order either: (i) the Product
developer's certified License Confirmation Certificates in the name of
such Licensee; or (ii) a written confirmation from the Proprietary
owner accepting Product invoice as proof of license. Contractor shall
submit a sample certificate, or alternatively such written confirmation
from the proprietary developer. Such certificates must be in a form
acceptable to the Licensee.
83. PRODUCT VERSION Purchase Orders shall be deemed to
reference Manufacturer's most recently released model or version of
the Product at time of order, unless an earlier model or version is
specifically requested in writing by Authorized User and Contractor is
willing to provide such version.
84. CHANGES TO PRODUCT OR SERVICE OFFERINGS
a. Product or Service Discontinuance Where Contractor is the
Product Manufacturer/Developer, and Contractor publicly announces
to all U.S. customers ("date of notice") that a Product is being
withdrawn from the U.S. market or that maintenance service or
technical support provided by Contractor ("withdrawn support") is no
longer going to be offered, Contractor shall be required to: (i) notify
the Commissioner, each Licensee and each Authorized User then
under contract for maintenance or technical support in writing of the
intended discontinuance; and (ii) continue to offer Product or
withdrawn support upon the Contract terms previously offered for the
greater of: a) the best terms offered by Contractor to any other
customer, or b) not less than twelve (12) months from the date of
notice; and (iii) at Authorized User's option, provided that the
Authorized User is under contract for maintenance on the date of
notice, either: provide the Authorized User with a Product replacement
or migration path with at least equivalent functionality at no additional
charge to enable Authorized User to continue use and maintenance of
the Product.
In the event that the Contractor is not the Product Manufacturer,
Contractor shall be required to: (i) provide the notice required under
the paragraph above, to the entities described within five (5) business
days of Contractor receiving notice from the Product Manufacturer,
and (ii) include in such notice the period of time from the date of
notice that the Product Manufacturer will continue to provide Product
or withdraw support.
The provisions of this subdivision (a) shall not apply or eliminate
Contractor's obligations where withdrawn support is being provided
by an independent Subcontractor. In the event that such Subcontractor
July 2006 18
GENERAL SPECIFICATIONS
APPENDIX B
ceases to provide service, Contractor shall be responsible for
subcontracting such service, subject to state approval, to an alternate
Subcontractor.
b. Product or Service Re -Bundling In the event that Contractor is
the Product manufacturer and publicly announces to all U.S. customers
("date of notice") that a Product or maintenance or technical support
offering is being re -bundled in a different manner from the structure or
licensing model of the prior U.S. commercial offering, Contractor shall
be required to: (i) notify the State and each Authorized User in writing
of the intended change; (ii) continue to provide Product or withdrawn
support upon the same terms and conditions as previously offered on
the then -current NYS Contract for the greater of: a) the best terms
offered by Contractor to any other customer, or b) not less than twelve
(12) nionths fro-iii-the-date of notice; and (iii) shall submitthe proposed
rebundling change to the Commissioner for approval prior to its
becoming effective for the remainder- of the Contract term. The
provisions of this section do not apply if the Contractor is not the
Product manufacturer.
85. NO HARDSTOP/PASSIVE LICENSE MONITORING
Unless an Authorized User is otherwise specifically advised to the
contrary in writing at the time of order and prior to purchase,
Contractor hereby warrants and represents that the Product and all
Upgrades do not and will not contain any computer code that would
disable the Product or Upgrades or impair in any way its operation
based on the elapsing of a period of time, exceeding an authorized
number of copies, advancement to a particular date or other numeral,
or other similar self-destruct mechanisms (sometimes referred to as
"time bombs," "time locks," or "drop dead" devices) or that would
permit Contractor to access the Product to cause such disablement or
impairment (sometimes referred to as a "trap door" device).
Contractor agrees that in the event of a breach or alleged breach of this
provision that Authorized User shall not have an adequate remedy at
law, including monetary damages, and that Authorized User shall
consequently be entitled to seek a temporary restraining order,
injunction, or other form of equitable relief against the continuance of
such breach, in addition to any and all remedies to which Authorized
User shall be entitled.
86. SOURCE CODE ESCROW FOR LICENSED PRODUCT If
Source Code or Source Code escrow is offered by either Contractor or
Product manufacturer or developer to any other commercial
customers, Contractor shall either: (i) provide Licensee with the
Source Code for the Product; or (ii) place the Source Code in a third
party escrow arrangement with a designated escrow agent who shall be
named and identified to the State, and who shall be directed to release
the deposited Source Code in accordance with a standard escrow
agreement acceptable to the State; or (iii) will certify to the State that
the Product manufacturer/developer has named the State, acting by and
through the Authorized User, and the Licensee, as a named beneficiary
of an established escrow arrangement with its designated escrow agent
who shall be named and identified to the State and Licensee, and who
shall be directed to release the deposited Source Code in accordance
with the terms of escrow. Source Code, as well as any corrections or
enhancements to such source code, shall be updated for each new
release of the Product in the same manner as provided above and such
updating of escrow shall be certified to the State in writing.
Contractor shall identify the escrow agent upon commencement of the
Contract term and shall certify annually that the escrow remains in
effect in compliance with the terms of this paragraph.
The State may release the Source Code to Licensees under this
Contract who have licensed Product or obtained services, who may use
such copy of the Source Code to maintain the Product.
FOR NEGOTIATED CONTRACTS THE FOLLOWING
CLAUSES ARE RESERVED BECAUSE BIDDING DOES NOT
APPLY:
Clauses: 7, 8, 9, 10, 11, 12, 13, 16, 15, 21, 25, 26, 28, 29, 30, 31, 32,
33, 36, 49, 50, 52, 54 and 37
July 2006 19
GENERAL SPECIFICATIONS
APPENDIX B
A
Additional Warranties
Advertising Results
Applicability
Assignment
Assignment of Claim
Audit of Licensed Product Usage
Authentication of Facsimile Bids
B
INDEX
Paragraph
No.
72
20
1
56
66
80
10
M
Modification of Contract Terms
N_
No Hardstop/Passive License Monitoring
0
On -Site Storage
Ownership/Title to Project Deliverables
Paragraph
No.
40
85
54
81
Bid Contents_.
Bid Evaluation
Bid Opening
Bid Submission
C
Changes to Product or Service Offerings
Clarification/Revisions
Confidential/Trade Secret Materials
Conflict of Terms
Conditional Bid
Contract Billings
Contract Creation/Execution
Contract Term - Renewal
Cooperation with Third Parties
D
Default - Authorized User
Definitions
Disqualification for Past Performance
Drawings
E
Emergency Contracts
Employees/Subcontractors/Agents
Equivalent or Identical Bids
Estimated/Specific Quantity Contracts
Ethics Compliance
Expenses Prior to Contract Execution
Extraneous Terms
F
Facsimile Submissions
Freedom of Information Law
G
Governing Law
Indemnification
Indemnification Relating to Third Party Rights
Independent Contractor
Installation
Insurance
Interest on Late Payments
International Bidding
L
Late Bids
Legal Compliance
Limitation of Liability
12.
29
7
8
74
75
68
52
77
64
6
11
73
76
Participation in Centralized Contracts 39
Performance. and Responsibility. Qualifications 34
Performance/Bid Bond 58
Prevailing Wage Rates Public Works
& Building Services Contracts 17
84 Pricing 24
31 Procurement Card 27
14 Product Acceptance 79
4 Product Delivery 45
30 Product References 21
62 Product Substitution 50
38 Product Version 83
71 Products Manufactured in Public Institutions 23
70 Prompt Payment Discounts 32
Proof of License 82
Purchase Orders 44
63
5
35
25
43
55
33
42
3
19
13
Q
Quantity Changes Prior to Award
R
Rejected Product
Release of Bid Evaluation Materials
Re -Weighing Product
Remanufactured, Recycled, Recyclable or
Recovered Materials
Remedies for Breach
Repaired or Replaced Product/Components
S
Samples
9 Savings/Force Majeure
16 Scope Changes
Security
Site Inspection
2 Shipping/Receipt of Product
Software License Grant
Source Code Escrow for Licensed Product
Subcontractors and Suppliers
Suspension of Work
T
Taxes
Termination
Timeframe for Offers
Title and Risk of Loss
Toxic Substances
36
51
15
49
22
65
53
28
61
41
69
26
47
78
86
57
59
18
60
37
48
67
W
Weekend and Holiday Deliveries 46
July 2006 20
APPENDIX C
MINORITY AND WOMEN OWNED
BUSINESS ENTERPRISES
(M/WBE)
New York State - Office of General Services
Equipment Maintenance Program (EMP) (Statewide)
RFP 21988PF — Appendix C — M/WBE
Page 1 of 1
Page 2 of 12
APPENDIX C
Contractor Requirements and Procedures for Equal Employment and
Business Participation Opportunities for Minority Group Members and
Certified Minority/Women-Owned Businesses on OGS Contracts
In accordance with Article 15-A of the Executive Law (Participation by Minority Group Members and
Women with Respect to State Contracts) and in conformance with the Regulations promulgated by the
Minority and Women's Business Development Division of the New York State Department of Economic
Development set -forth -at 5 -NYCRR Parts 140444 the Offeror/Contractor agrees to -be bound_ by the
following to promote equality of economic opportunities for minority group members and women, and
the facilitation of minority and women -owned business enterprise participation on all covered OGS
contracts.
Equal Employment Opportunity Requirements
By submission of a bid or proposal in response to this solicitation, the Offeror agrees with all of the terms
and conditions of Appendix A including Clause 12 - Equal Employment Opportunities for Minorities and
Women. The contractor is required to ensure that the provisions of Appendix A clause 12 - Equal
Employment Opportunities for minorities and women, are included in every subcontract in such a
manner that the requirements of these provisions will be binding upon each subcontractor as to work in
connection with the State contract.
The following forms are required to ensure offeror compliance with the Equal Employment Opportunity
requirements:
1. Staffing Plan (Form EEO 100)
To ensure compliance with the foregoing section, the Offeror shall submit a staffing plan to document the
composition of the proposed workforce to be utilized in the performance of this contract broken down by
the specified categories listed, including ethnic background, gender, and Federal occupational categories.
Offerors shall complete the Staffing Plan form and submit it as part of their bid or proposal or within a
reasonable time thereafter, but no later than the time of award of the contract.
A contractor's failure to submit a Staffing Plan prior to the time required shall result in the rejection of
the bid or proposal.
2. Workforce Employment Utilization/Compliance Report (Form EEO 101).
Once a contract has been awarded, the Contractor is responsible to update OGS on any changes to the
Staffing Plan submitted. This information is to be submitted on a quarterly basis during the life of the
contract to report the actual workforce utilized in the performance of the contract broken down by the
specified categories listed including ethnic background, gender, and Federal occupational categories. The
Workforce Employment Utilization/Compliance Report (Utilization/Compliance Report) must be
submitted to report this information. Separate forms are to be completed for the contractor and any
subcontractor performing work on the contract.
Please note that in all instances, the Contractor may not be able to separate out the workforce utilized in
the performance of the contract from the Contractor's and/or sub contractor's total workforce. When a
separation can be made, the Contractor shall submit the Utilization/Compliance Report and indicate that
the information provided relates to the actual workforce utilized on the subject contract. When the
workforce to be utilized on the contract cannot be . separated out from the Contractor's and/or
7-08
Page 3 of 12
subcontractor's total workforce, the Contractor shall submit the Utilization/Compliance Report and
indicate that the information provided is the Contractor's total workforce during the subject time frame,
not limited to work specifically under the contract.
The Utilization/Compliance Report is to be completed for the quarters ending on 3/31, 6/30, 9/30 and
12/31 and submitted to the OGS Office of Minority/Women-owned Business Enterprise Program
Operations (OM/ WBEPO) within 15 days of the end of each quarter. If there are no changes to the
workforce utilized on the contract during the reporting period, the Contractor can submit a copy of the
previously submitted report with the date and reporting period updated, indicating no change.
2equirements_—and Procedures Regarding . Business Participation_
Opportunities for Certified Minorities and Women on OGS Contracts
In accordance with Article 15-A of the Executive Law and regulations adopted pursuant thereto, the
following forms are required to ensure compliance with the Minority and Women -owned Business
participation requirements. In accordance with these requirements, the Offeror agrees to make every
good faith effort to promote and assist the participation of New York State Certified Minority and
Women -owned Business Enterprises (M/WBE) as subcontractors and suppliers on this contract for the
provision of services and materials. The directory of New York State Certified Businesses can be viewed
at: http://www.nylovesmwbe.ny.gov/
In addition, the Offeror agrees to submit the following documents as evidence of compliance with the
foregoing:
1. M/WBE Utilization Plan (Form M/WBE 100).
A. Offerors are required to submit a Utilization Plan on Form M/WBE 100 with this bid or proposal.
The Utilization Plan shall list NYS Certified minority or women -owned business enterprises
which the contractor intends to use to perform the State contract and a description of the contract
scope of work which the contractor intends to structure to increase the participation by NYS
Certified minority or women -owned enterprises on the State contract, and the estimated or, if
known, actual dollar amounts to be paid to and performance dates of each component of a State
contract which the contractor intends to be performed by a NYS Certified minority or woman -
owned business. Any modifications or changes to the agreed participation by NYS Certified
M/ WBEs after the Contract Award and during the term of the contract must be reported on a
revised M/WBE Utilization Plan and submitted to the OGS OM/WBEPO.
B. The OGS OM/WBEPO will review the M/WBE Utilization Plan and will issue to the Offeror a
written notice of acceptance or deficiency within twenty (20) days of its receipt. A notice of
deficiency shall include (i) the name of any M/WBE which is not acceptable for the purpose of
complying with the M/WBE participation goals and the reasons why it is not acceptable; (ii)
elements of the Contract scope of work which OGS has determined can be reasonably structured
by the Offeror to increase the likelihood of participation in the Contract by M/WBEs; and (iii)
other information which OGS determines to be relevant to the M/ WBE Utilization Plan.
C. The Offeror shall respond to the notice of deficiency within seven (7) business days of receipt by
submitting to OGS OM/WBEPO a written remedy in response to the notice of deficiency. If the
written remedy that is submitted is not timely or is found by OGS OM/ WBEPO to be inadequate,
OGS OM/WBEPO shall notify the Offeror and direct the Offeror to submit, within five (5)
business days, a request for a partial or total waiver of M/ WBE participation goals on forms
7-08
Page 4 of 12
provided by OGS OM/ WBEPO. Failure to file the waiver form in a timely manner may be
grounds for disqualification of the bid or proposal.
D. OGS may disqualify an Offeror as being non -responsive under the following circumstances:
a) If an Offeror fails to submit a M/WBE Utilization Plan;
b) If an Offeror fails to submit a written remedy to a notice of deficiency in a M/WBE
Utilization Plan;
c) If an Offeror fails to submit a request for waiver; or
d)If the OGS OM/WBEPO determines that the Offeror has failed to document good faith
efforts.
2. Request for Waiver Form (if applicable) (Form M/WBE 101). An Offeror who documents good faith
efforts to meet the goal requirements may submit a request for a partial or total waiver at the same time it
submits its M/WBE Utilization Plan. If a request for waiver is submitted with the M/WBE Utilization
plan and is not accepted by the OGS OM/WBEPO at that time, the provisions of clauses 1 (B & C),
regarding the notice of deficiency and written remedy will apply.
The Awarded Contractor shall attempt to utilize, in good faith, any MBE or WBE identified within its
M/ WBE Utilization Plan, during the performance of the contract. Requests for a partial or total waiver of
established goal requirements made subsequent to award of a Contract may be made at any time during
the term of the Contract to the OGS OM/WBEPO but prior to the submission of a request for final
payment on the Contract.
3. Monthly M/WBEContractor Compliance Report (Form M/WBE 102). Contractors are required to
submit a Monthly M/WBE Contractor Compliance Report to OGS OM/WBEPO by the loth day of each
month over the term of the contract documenting the progress made towards achievement of the
M/WBE goals of the Contract.
Please Note: Failure to comply with the foregoing requirements may result in a finding of non -
responsiveness, non -responsibility and/or a breach of contract, leading to the withholding of funds or
such other actions or enforcement proceedings as allowed by the contract.
Copies of all referenced forms can be found on the OGS Website at:
http://www.ogs.state.ny.us/mwbegorms.html
If you have any questions regarding the foregoing requirements or the requirements of Article 15-A of the
Executive Law and 5 NYCRR Parts 140-144, please contact the identified Designated Contact(s) for this
solicitation.
7-08
Page 5 of 12
EQUAL EMPLOYMENT OPPORTUNITY
STAFFING PLAN
Submit with Bid or Proposal — Instructions on page 2
Solicitation No.:
Report includes:
❑ Work force to be utilized on,
o Contractor/Subcontractor's
this contract
total work force
Offeror's Name:
Reporting Entity:
❑ Contractor
❑ Subcontractor
Subcontractor's name
Offeror's Address:
Enter the total number of employees for each classification in each of the EEO -Job Categories identified
EEO -Job Category
Total
Work
force
Work force by
Gender
Work force by
Race/Ethnic Identification
Total
Male
(M)
Total
Female
(F)
White
(M) (F)
Black
(M) (F)
Hispanic
(M) (F)
Asian
(M) (F)
Native
American
(M) !(F)
Disabled
(M) (F)
Veteran
(M) (F)
Officials/Administrators
Professionals
Technicians
Sales Workers
Office/Clerical
Craft Workers
Laborers
Service Workers
Temporary
/Apprentices
Totals
PREPARED BY (Signature):
TELEPHONE NO.:
EMAIL ADDRESS:
DATE:
NAME AND TITLE OF PREPARER (Print or Type):
Submit completed plan with
bid or proposal EEO 100 (Rev 6-08)
Page6of12
General instructions: All Offerors and each subcontractor identified in the bid or proposal must complete an EEO Staffing Plan (EEO 100) and submit it as part
of the bid or proposal package. Where the work force to be utilized in the performance of the State contract can be separated out from the contractor's or
subcontractor's total work force, the Offeror shall complete this form only for the anticipated work force to be utilized on the State contract. Where the work force
to be utilized in the performance of the State contract cannot be separated out from the contractor's or subcontractor's total work force, the Offeror shall complete
this form for the contractor's or subcontractor's total work force.
Instructions for completing:
1. Enter the Solicitation number that this report applies to along with the name and address of the Offeror.
2. Check off the appropriate box to indicate if the Offeror completing the report is the contractor or a subcontractor.
3. Check off the appropriate box to indicate if the work force being reported is just for the contract or the Offerors' total
4. Enter the total work force by EEO job category.
5. Break down the total work force by gender and enter under the heading 'Work force by Gender'
6. Break down the total work force by race/ethnic background and enter under the heading 'Work force by Race/Ethnic
Designated Contact(s) for the solicitation if you have any questions.
7. Enter information on disabled or veterans included in the work force under the appropriate headings.
8. Enter the name, title, phone number and email address for the person completing the form. Sign and date the form
work force.
Identification'. Contact the
n the designated boxes.
RACE/ETHNIC IDENTIFICATION
Race/ethnic designations as used by the Equal Employment Opportunity Commission do not denote scientific definitions of anthropological origins. For the
purposes of this report, an employee may be included in the group to which he or she appears to belong, identifies with, or is regarded in the community as
belonging. However, no person should be counted in more than one race/ethnic group. The race/ethnic categories for this survey are:
• WHITE (Not of Hispanic origin) All persons having origins in any of the original peoples of Europe, North Africa, or the Middle East.
• BLACK aperson, not of Hispanic origin, who has origins in of the black racial groups of the original eo les of Africa.
Pany 9 Ppeoples
• HISPANIC a person of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race.
• ASIAN & PACIFIC a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent or the Pacific Islands.
ISLANDER
• NATIVE INDIAN (NATIVE a person having origins in any of the original peoples of North America, and who maintains ;cultural identification through tribal
AMERICAN/ ALASKAN affiliation or community recognition.
NATIVE)
OTHER CATEGORIES
• DISABLED INDIVIDUAL any person who:
has a physical or mental impairment that substantially limits one or more major life activity(ies)
- has a record of such an impairment; or
- is regarded as having such an impairment.
• VIETNAM ERA VETERAN a veteran who served at any time between and including January 1, 1963 and May.7, 1975.
• GENDER
age 7 of 12
EQUAL EMPLOYMENT OPPORTUNITY
WORK FORCE EMPLOYMENT UTILIZATION/COMPLIANCE REPORT
Contract No.:
Reporting Entity:
o Contractor
o Subcontractor
Reporting Period:
o January 1, 20_ - March 31,
20_
o April 1, 20_ - June 30, 20_
o July 1, 20_ - September 30, 20_
o October 1, 20_ - December 31, 20_
Offeror's Name:
Report includes:
o Work force to be utilized on
o Contractor/Subcontractor's'
this contract
otal work force
Offeror's Address:
Enter the total number of employees in each classification in each of the EEO -Job Categories identified.
EEO -Job Category
Total
Work
force
Work force by
Gender
Work force by
Race/Ethnic Identification
Male
(M)
Female
(F)
White
(M) (F)
Black
(M) (F)
Hispanic
(M) (F)
Asian
(M) (F)
Native
American
(M) ;(F)
Disabled
(M) (F)
Veteran
(M) (F)
Officials/Administrators
Professionals
Technicians
Sales Workers
Office/Clerical
Craft Workers
Laborers
Service Workers
Temporary
/Apprentices
Totals
PREPARED BY (Signature):
TELEPHONE NO.:
EMAIL ADDRESS:
DATE:
NAME AND TITLE OF PREPARER (Print or Type):
Submit completed form for OGS contract to:
NYS Office of General Services
Office of Minority/Woman-owned Business Enterprise
Corning Tower, 41ST Floor
Empire State Plaza, Albany NY, 12242
Program Operations
EEO 101 (Revised 6/08)
Page 8 of 12
General Instructions: The work force utilization/compliance report (EEo 101) is to be submitted on a quarterly basis during the life of the contract to report the
actual work force utilized in the performance of the contract broken down by the specified categories. When the work force utilized in the performance of the
contract can be separated out from the contractor's or subcontractor's total work force, the contractor or subcontractor shall submit a Utilization Report of the work
force utilized on the contract. When the work force to be utilized on the contract cannot be separated out from the contractor's or subcontractor's total work force,
information on the contractor's total work force shall be included in the Utilization Report. Utilization reports are to be completed for the quarters ended 3/31, 6/30,
9/30 and 12/31 and submitted to OGS within 15 days of the end of each quarter. If there are no changes to the work force utilized on the contract during the
reporting period, the contractor can submit a written statement of no change or submit a copy of the previously submitted report with the date and reporting period
updated.
Instructions for completing:
1. Enter the number of the contract that this report applies to along with the name and address of the Contractor preparing the report.
2. Check off the appropriate box to indicate if the entity completing the report is the contractor or a subcontractor.
3. Check off the box that corresponds to the reporting period for this report.
4. Check off the appropriate box to indicate if the work force being reported is just for the contract or the Contractor's total work force.
5. Enter the total work force by EEO job category.
6. Break down the total work force by gender and enter under the heading 'Work force by Gender'
7. Break down the total work force by race/ethnic background and enter under the heading 'Work force by Race/Ethnic Identification'. Contact the OGS
Office of Minority/Woman-Owned Business Enterprise Programs at (518) 473-5212 if you have any questions.
8. Enter information on any disabled or veteran employees included in the work force under the appropriate heading.
9. Enter the name, title, phone number and email address for the person completing the form. Sign and date the form in the designated boxes.
RACE/ETHNIC IDENTIFICATION
Race/ethnic designations as used by the Equal Employment Opportunity Commission do not denote scientific definitions of anthropological origins. For the
purposes of this report, an employee may be included in the group to which he or she appears to belong, identifies with, or is regarded in the community as
belonging. However, no person should be counted in more than one race/ethnic group. The race/ethnic categories for this survey are:
• WHITE (Not of Hispanic origin) All persons having origins in any of the original peoples of Europe, North Africa, or the Middle East.
• BLACK a person, not of Hispanic origin, who has origins in any of the black racial groups of the original peoples of Africa.
• HISPANIC a person of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race.
• ASIAN & PACIFIC a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent or the Pacific Islands.
ISLANDER
• NATIVE INDIAN (NATIVE a person having origins in any of the original peoples of North America, and who maintains cultural identification through tribal
AMERICAN/ ALASKAN affiliation or community recognition.
NATIVE)
OTHER CATEGORIES
• DISABLED INDIVIDUAL any person who: - has a physical or mental impairment that substantially limits one or more major life activity(ies)
- has a record of such an impairment; or
- is regarded as having such an impairment.
• VIETNAM ERA VETERAN a veteran who served at any time between and including January 1, 1963 and May 7, 1975.
• GENDER
12
OFFICE OF MINORITY/WOMEN-OWNED BUSINESS ENTERPRISE PROGRAM OPERATIONS
M/WBE UTILIZATION PLAN
INSTRUCTIONS: This form must be submitted with any bid, proposal, or proposed negotiated contract or within a reasonable time thereafter, but
prior to contract award, for an OGS contract. This Utilization Plan must contain a detailed description of the supplies and/or
services to be provided by each certified Minority and Women -owned Business Enterprise (M/WBE) under the contract. Attach
additional sheets if necessary.
Offeror's Name:
Address:
City, State, Zip Code:
Ret=ion/Location of Work:
Federal Identification Number:
Solicitation Number:
Telephone Number:
M/WBE Goals in the Contract: MBE
%
WBE
%
1. Certified M/WBE Subcontractors/Suppliers
Name, Address, Email Address, Telephone No.
2. Classification
3. Federal ID No.
4. Detailed Description of Work
(Attach additional sheets, if necessary)
5. Dollar Value of Subcontracts/
Supplies/Services and intended
performance dates of each
component of the contract.
A.
NYS ESD CERTIFIED
1
■MBE
❑ WBE
B.
NYS ESD CERTIFIED
❑ MBE
El WBE
PREPARED BY:
Signature;
THE OFFEROR'S ACKNOWLEDGEMENT
REQUIREMENTS SET FORTH UNDER
NYCRR PART 143, AND THE ABOVE-
FOR OGS USE ONLY • f
REVIEWED BY:
DATE:
DATE:
TELEPHONE NO:
EMAIL ADDRESS:
NAME AND TITLE OF PREPARER (Print or Type):
SUBMISSION OF THIS FORM CONSTITUTES
AND AGREEMENT TO COMPLY WITH THE M/WBE
NYS EXECUTIVE LAW, ARTICLE 15-A, 5
REFERENCED SOLICITATION.
M/WBE 100 (Revised 6-08)
UTILIZATION PLAN APPROVED:
Contract No:
Contract Award Date:
Estimated Date of Completion:
1
Amount Obligated Under the Contract:
1
NOTICE OF DEFICIENCY ISSUED:
NOTICE OF ACCEPTANCE ISSUED:
Date:
Date:
■ YES ■ NO
■ YES ■ NO
Date:
■
YES ■ NO
age 10 of 12
OFFICE OF MINORITYIWOMEN-OWNED BUSINESS ENTERPRISE PROGRAM OPERATIONS
REQUEST FOR WAIVER FORM
INSTRUCTIONS: SEE PAGE 2 OF THIS ATTACHMENT FOR REQUIREMENTS AND DOCUMENT SUBMISSION INSTRUCTIONS.
Offeror/Contractor Name:
Federal Identification No.:
Address:
Solicitation/Contract No.:
City, State, Zip Code:
MIWBE Goals: MBE % WBE
%
By submitting this form and the required information, the offeror/contractor certifies that every Good Faith Effort has been taken
topromote M/WBE participation pursuant to the M/WBE requirements set forth under the contract.
Contractor is requesting a:
1. ❑ MBE Waiver — A waiver of the MBE Goal for this procurement is requested. ❑ Total ❑ Partial
2. ❑ WBE Waiver — A waiver of the WBE Goal for this procurement is requested. ❑ Total ❑ Partial
3. ❑ Waiver Pending ESD Certification — (Check here if subcontractors or suppliers of Contractor are not certified
certification has been filed with Empire State Development.) Date of such filing with Empire State Development:!
M/WBE, but an application for
PREPARED BY (Signature):
SUBMISSION OF THIS FORM CONSTITUTES THE OFFEROR/CONTRACTOR'S
ACKNOWLEDGEMENT AND AGREEMENT TO COMPLY WITH THE M/WBE REQUIREMENTS
SET FORTH UNDER NYS EXECUTIVE LAW, ARTICLE 15-A AND 5 NYCRR PART 143.
FAILURE TO SUBMIT COMPLETE AND ACCURATE INFORMATION MAY RESULT IN A
FINDING OF NONCOMPLIANCE AND/OR TERMINATION OF THE CONTRACT.
Date:
Name and Title of Preparer (Printed or Typed):
Telephone Number:
.Email Address:
!
Submit with the bid or proposal or if submittingafter award,11
p p
for an OGS contract, submit to:
NYS Office of General Services
Office of Minority/Woman-owned Business Enterprise Program Operations
Corning Tower, 41ST Floor
Empire State Plaza
Albany, NY 12242
M/WBE 101 (Revised 6-08)
******************** FOR OGS USE ONLY ********************
REVIEWED BY:
;DATE:
I
Waiver Granted: ❑ YES MBE: ❑
❑ Total Waiver ❑ Partial
❑ ESD Certification Waiver ❑ *Conditional
❑ Notice of Deficiency Issued
WBE: ❑
1
Waiver
*Comments:
Page 11 of 12
REQUIREMENTS AND DOCUMENT SUBMISSION INSTRUCTIONS
When completing the Request for Waiver Form please check all boxes that apply. To be considered, the Request for Waiver Form must
be accompanied by documentation for items 1 —11, as listed below. If box # 3 has been checked above, ;please see item 11. Copies of the
following information and all relevant supporting documentation must be submitted along with the request:
1. A statement setting forth your basis for requesting a partial or total waiver.
2. The names of general circulation, trade association, and M/WBE-oriented publications in which you; solicited certified M/WBEs for the
purposes of complying with your participation goals.
3. A list identifying the date(s) that all solicitations for certified M/WBE participation were published in any of'the above publications.
4. A list of all certified M/WBEs appearing in the NYS Directory of Certified Firms that were solicited fdr purposes of complying with your
certified M/WBE participation levels.
5. Copies of notices, dates of contact, letters, and other correspondence as proof that solicitations were made in writing and copies of such
solicitations, or a sample copy of the solicitation if an identical solicitation was made to all certified M/WBEs.
6. Provide copies of responses made by certified M/WBEs to your solicitations.
7. Provide a description of any contract documents, plans, or specifications made available to certified MBEs for purposes of soliciting their
bids and the date and manner in which these documents were made available.
8. Provide documentation of any negotiations between you, the Offeror/Contractor, and the M/WBEs undertaken for purposes of complying
with the certified M/WBE participation goals.
9. Provide any other information you deem relevant which may help us in evaluating your request for a waiver.
10. Provide the name, title, address, telephone number, and email address of offeror/contractor's representative authorized to discuss and
negotiate this waiver request.
11. Copy of notice of application receipt issued by Empire State Development (ESD).
Note:
Unless a Total Waiver has been granted, Offeror/Contractor will be required to submit all reports and
documents pursuant to the provisions set forth in the Contract, as deemed appropriate by OGS, to
determine M/WBE compliance.
M/WBE 101 Instructions (6-08)
OEPage 12 of 12
OFFICE OF MINORITY/WOMEN-OWNED BUSINESS ENTERPRISE PROGRAM OPERATIONS
MONTHLY M/WBE CONTRACTOR COMPLIANCE REPORT
INSTRUCTIONS: BEGINNING THIRTY (30) DAYS AFTER A CONTRACT IS AWARDED; MONTHLY COMPLIANCE REPORTS ARE DUE ON THE TENTH DAY OF EACH
MONTH FOR THE PRECEDING MONTH'S ACTIVITY.
Contractor's Name:
Address:
City, State, Zip Code:
Federal Identification No.:
Contract No.:
Telephone No:
AS EVIDENCE OF THE PROGRESS MADE TOWARDS ACHIEVEMENT OF THE MINORITY/WOMEN-OWNED BUSINESS ENTERPRISE (M/WBE) GOAL(S), CONTRACTOR IS
REQUIRED TO COMPLETE AND SUBMIT THE FOLLOWING FOR EACH MBE OR WBE (PLEASE USE A SEPARATE FORM FOR EACH MBE OR WBE.):
1. Copy (ies) of the written agreement with certified MANBEs (submit with first monthly report).
2. List below the name, address and telephone number(s) of the certified M/WBE(s) utilized during the preceding month.
NAME
ADDRESS
CITY, STATE, ZIP
3. Description of the work performed by the certified M/WBE in the reporting period (attach separate sheet if needed))
4. Dates of performance of the work by the certified M/WBE
5. Actual payments made to the certified M/WBE in the reporting period $
6. Actual total amount(s) of all payments made over the life of the contract by the Contractor to the certified M/WBE as of the date the compliance report is being submitted $
TELEPHONE NO.
LOCATION OF WORK PERF RMED
PREPARED BY (Signature): DATE:
SUBMISSION OF THIS FORM CONSTITUTES THE CONTRACTOR'S ACKNOWLEDGEMENT
AND AGREEMENT TO COMPLY WITH THE M/WBE REQUIREMENTS SET FORTH UNDER
NYS EXECUTIVE LAW, ARTICLE 15-A AND 5 NYCRR PART 143. FAILURE TO SUBMIT
COMPLETE AND ACCURATE INFORMATION MAY RESULT IN A FINDING OF
NONCOMPLIANCE AND/OR TERMINATION OF THE CONTRACT
NAME AND TITLE OF PREPARER (Print or Type):
TELEPHONE NO.:
EMAIL ADDRESS:
Monthly reports for OGS contracts should be submitted by the 10th day of each month
to:
Financial Administration
New York State - Office of General Services
40th Floor, Mayor Erastus Corning 2nd Tower
The Governor Nelson A. Rockefeller
Empire State Plaza
Albany, NY 12242
FOR
OGS USE ONLY
REVIEWED BY: !
DATE:
M/WBE 102 (rev 6-08)
Appendix D
Cost Proposal
New York State - Office of General Services
Equipment Maintenance Program (EMP) (Statewide)
RFP 21988PF — Appendix D —Cost Proposal
Page 1 of 2
Cost Proposal
Discount
Proposer will provide equipment
maintenance Service agreement coverage
for equipment requested by any
Authorized User at the minimum fixed
percentage discount stated herein, which
discount shall be applied against the cost
of the previous vendor maintenance
contracts, or if such contracts are not
available, the minimum discount shall be
applied against the then prevailing market
cost of comparable vendor maintenance
coverage with the same level of service.
-
Minimum Percent discount
ok
(Vendor's Name)
By
(Signature)
Name:
Title:
Date:
New York State - Office of General Services
Equipment Maintenance Program (EMP) (Statewide)
RFP 21988PF — Appendix D —Cost Proposal
Page 2 of 2
Appendix E
OGS Security Requirements
New York State - Office of General Services
Equipment Maintenance Program (EMP) (Statewide)
RFP 2 1 9 8 8PF — Appendix E — OGS Security Requirements
Page 1 of 2
OGS SECURITY REQUIREMENT
a. This clause is applicable to all contracts that include information technology resources or services in
which the Contractor must have physical or electronic access to sensitive OGS information. For the
purpose of this clause, the term "Sensitive" is defined by the guidance set forth in the NYS
Information Security Policy (P03-002), issued by the NYS Office of Cyber Security and Critical
Infrastructure Coordination (CSCIC). There is a presumption that all information technology systems
contain some sensitive information.
Information—technology_resour_ces_include,_but are _not limited. to, system.software application
software, and information (data). Information technology services include, but are not limited to, the
management, operation (including input, processing, transmission, and output), maintenance,
programming, and system administration of computer systems, networks, and telecommunications
systems. The Contractor shall be responsible for implementing sufficient information technology
security to reasonably prevent the compromise of OGS IT resources for all of the contractor's
systems that are interconnected with an OGS network, as well as for OGS systems that are operated
by the Contractor.
b. All Contractor personnel performing under this contract, and all Contractor equipment used to
process or store OGS data or to connect to OGS networks, must comply with the requirements
contained in:
• The NYS Information Security Policy (P03-002)
To obtain a copy, contact CSCIC (http://www.cscic.state.nv.us/lib/policies/);
• NYS information technology policies, standards and best practice guidelines
(http://www.oft.state.ny.us/policy/technologvpolicyindex.htm); and
• OGS information security policies, procedures, and standards.
c. For all Contractor -owned systems for which performance of the contract requires interconnection with
an OGS network or that OGS data be stored or processed on them, the Contractor shall provide,
implement, and maintain an IT Security Plan. This plan shall be submitted to OGS prior to the
commencement of any work under the contract. It shall describe the processes and procedures that
will be followed to ensure the appropriate security of IT 'resources that are developed, processed, or
used under this contract. The plan shall also describe those parts of the contract to which this clause
applies. The plan shall meet IT security requirements in accordance with NYS policies and
procedures that include, but are not limited to:
• The NYS Information Security Policy (P03-002)
To obtain a copy, contact CSCIC (http://www.cscic.state.nv.us/lib/policies/);
• NYS information technology policies, standards and best practice guidelines
(http://www.oft.state.ny.us/policy/technologypolicyindex.htm); and
• OGS information security policies, procedures, and standards.
d. The Contractor shall incorporate this clause in all subcontracts that meet the conditions in paragraph
(a) of this clause.
New York State - Office of General Services
Equipment Maintenance Program (EMP) (Statewide)
RFP 21988PF - Appendix E — OGS Security Requirements
Page 2 of 2
Appendix F
Model Maintenance Service Agreement
New York State - Office of General Services
Equipment Maintenance Program (EMP) (Statewide)
RFP 21988PF - Appendix F — Model Maintenance Service Agreement
Page I of 13
Equipment Maintenance Coverage Information Page
SERVICE AGREEMENT NO.:
SERVICE AGREEMENT TERM:
COMPANY NAME & ADDRESS:
/ / to / /
CLIENT NAME & ADDRESS:
COVERAGE PROVIDED: Equipment Maintenance Coverage
LOCATION OF PREMISES: As shown on the Schedule of Covered Property
EQUIPMENT DESCRIPTION: As Shown on the Schedule of Covered Property
ANNUAL FEE:
New York State - Office of General Services
Equipment Maintenance Program (EMP) (Statewide)
RFP 21988PF - Appendix F — Model Maintenance Service Agreement
Page 2 of 13
Equipment Maintenance Supplemental Coverage Information Page
1. Coverage Limits:
A. Aggregate Service Agreement Liability $
B. Item Limit:
The most we will pay for any one Loss is the
Actual Cash Value of the property at the time of Loss
C. Rental Reimbursement Limit, unless otherwise specified
(Not to exceed the Actual Cash Value of the property
less Corrective Maintenance Charges)
2. Deductibles
Each loss deductible
3. Large Loss Notification Limit
4. Loss Notification Period
5. Hourly Rate for Requested Consultative Services
10 days
$ 0
$
90 days
$
New York State - Office of General Services
Equipment Maintenance Program (EMP) (Statewide)
RFP 21988PF — Appendix F — Model Maintenance Service Agreement
Page 3 of 13
Model Equipment Maintenance Service Agreement
In return for Your payment of the required Fee, We provide the coverage described herein subject to all
the terms of this Equipment Maintenance Coverage Service Agreement.
The terms and conditions of the Agreement for Equipment Maintenance Program dated
2011, (the "EMP Agreement") between and the New York State Office of
General Services (Comptroller's Contract No. ) are hereby incorporated by reference and
made a part hereof as fully as if set forth at length herein. In the case of any discrepancy between the
terms and conditions of this Agreement and the terms and conditions of the EMP Agreement, the terms
and conditions of the EMP Agreement shall be controlling.
COVERAGE PROVIDED
We will indemnify You for Loss that You incur as Corrective Maintenance Charges to return Covered
Property to Effective Operation due to a Precipitating condition during the Service Agreement Period.
DEFINITIONS
Throughout this Service Agreement the words "You" and "Your" refer to the Client shown in the Coverage
Information Page.
The words "We," "Us," and "Our" refer to the company providing this service agreement. The term
"Property" is used interchangeably with "Equipment" and "Item".
"Actual Cash Value" means the market value of the Covered Property or of similar equipment of
equivalent age, kind, and functionality at the time of the Loss.
"Corrective Maintenance Charges" means necessary, standard, and customary charges for services
rendered to You to restore covered equipment to Effective Operation including the cost of parts, Labor,
travel, taxes, and shipping charges.
"Coverage Information Page" means the document so labeled and attached hereto, which is hereby
incorporated by reference and made a part hereof as fully as if set forth at length herein.
"Covered Property" means property owned or leased by You or property in Your care, custody or control,
that is shown in the Schedule of Covered Property.
"Effective Operation" means the ability of Covered Property to render the same or similar service as prior
to the development of a Precipitating condition and operating within manufacturer specifications for the
device.
"Labor" is defined as seven (7) days per week, twenty-four (24) hours per day at the vendor's prevailing
Labor rates, not including additional expenses associated with overtime, weekend, or holiday repair,
except as is noted in the Schedule of Covered Property.
"Loss" means necessary Corrective Maintenance Charges incurred by You to restore Covered Property to
Effective Operation due to a Precipitating condition. A Loss occurs at the time when it is discovered that
a Precipitating condition is impairing the Effective Operation of Covered Property.
"Schedule of Covered Property" means the document so labeled and attached hereto, which is hereby
incorporated by reference and made a part hereof as fully as if set forth at length herein. The schedule
of Covered Property may be amended from time to time by agreement of the parties.
"Service Agreement Period" means the period from the effective date of this agreement to the Service
Agreement expiration date shown in the Coverage Information Page, or its earlier termination date, if any.
"Supplemental Coverage Information Page" means the document so labeled and attached hereto, which
is hereby incorporated by reference and made a part hereof as fully as if set forth at length herein.
"Precipitating Condition" means an impairment of the Effective Operation of Covered Property arising
from electrical or mechanical failure.
New York State - Office of General Services
Equipment Maintenance Program (EMP) (Statewide)
RFP 21988PF - Appendix F — Model Maintenance Service Agreement
Page 4 of 13
EXCLUDED CAUSES OF LOSS
Unless specifically noted on the Schedule of Covered Property, We will not reimburse You for those
Corrective Maintenance Charges caused directly or indirectly by any of the following regardless of any
other cause or event that contributes concurrently or in any sequence to the Loss:
1. Any cause of Loss customarily covered under the following commercial insurance forms:
a. Boiler & Machinery;
b. Automobile;
c. Crime;
d. Electronics Data Processing;
e _Business_Interruption_or-Time-Element; .. _.
f. Fire & Extended Coverage; or
g. Named Peril, Special or All Risk Property;
2. Flood, sewer or drain back-up or earth movement, including earthquake, landslide, mudflow, and
earth sinking, rising or shifting;
3. Insect or vermin damage to Covered Property;
4. Obsolescence of Covered Property;
5. War, including undeclared war, civil war, insurrection, rebellion, revolution, terrorism, warlike
act by a military force or military personnel, destruction or seizure or use for a military
purpose, and including any consequence of any of these. Discharge of a nuclear, biological,
or chemical weapon(s) will be deemed a warlike act even if accidental;
6. Radioactive Contamination, meaning:
a. Ionizing radiation from or contamination by radioactivity from any nuclear fuel or from any
nuclear waste or from the combustion of nuclear fuel;
b. The radioactive, toxic, explosive or other hazardous or contaminating properties of any nuclear
installation, reactor or other nuclear assembly or nuclear component thereof;
c. Any weapon of war employing atomic or nuclear fission and/or fusion or other like reaction or
radioactive force or matter;
7. Vandalism, defacement, malicious mischief, or any willful act of malicious intent;
8. Willful, fraudulent or dishonest act or omission by You;
9. Ordinances, regulations, laws, or court actions;
10. Application software or software virus;
11. Vendor, Contractor, or In -House Repair Staff error, faulty workmanship, improper installation,
improper maintenance, negligence or fraud.
EXCLUDED COSTS
Unless specifically noted on the Schedule of Covered Property, We will not reimburse You for the direct
cost of:
1. Replacement of operating supplies, consumables, disposables, expendables, or accessory items;
2. Improvements, updates, upgrades, cosmetic restorations, preferential equipment adjustments,
retrofits, overhauls, refurbishment, or correcting conditions of obsolescence and all costs of repairing
or replacing parts when the discovery of deficiencies occurs as a result or in conjunction with any of
these not related to preventative maintenance;
3. Expenses incurred for functions and services normally performed by the equipment operator;
New York State - Office of General Services
Equipment Maintenance Program (EMP) (Statewide)
RFP 21988PF - Appendix F — Model Maintenance Service Agreement
Page 5 of 13
4. Maintaining or repairing covered equipment mounting hardware, supports, fixtures, or furniture;
5. Trace gas analysis, safety checks, certifications, calibrations, or preventive maintenance;
6. Repair or replacement of X-Ray tubes, pick-up tubes, image intensifiers, glassware, transducers,
probes, magnets, cryogens, crystals, wave guides, shock wave generators, magnetrons, klystrons,
thyratrons, fiber optics, laser systems, lights, uninterrupted power supplies (UPS), drums, including
copier drums and laser imaging drums, MRI magnets, coils, equalization, repair, or replacement of
batteries, battery cells or electrodes;
7. Loaner charges or rent for replacement CT's, PET Scanners, MR1's, Nuclear Medicine Labs, Cath
Labs, Oncology Systems;
8. Repairs and expenses associated with de -installation, movement, or installation of covered
equipment;
9 Delay,loss of.market,loss_of_use,_or_business-interruption;. _ _
10. If there is a Loss to an item that is part of a pair or set, We will pay only for the costs to repair or
replace the impaired item;
11. If there is a Loss to a part of an item that consists of several parts, We will pay only for the Loss to
that part. A Loss to a part is not considered to be a Loss to the whole item;
12. If there is other insurance or service agreement, whether collectible or not, that applies to a covered
Loss, or would have applied in the absence of this coverage, We will pay for the Loss only after the
full amount from the other insurance or service agreement has been paid;
13. We will not pay for the part of a Loss that has been paid by someone else.
CONDITIONS
1. Aggregate Service Agreement Liability
We will not be liable for more than the aggregate liability shown in the Supplemental Coverage
Information Page.
2. Item Limit of Liability
The most We will pay for any one Loss is the Actual Cash Value of the property at the time of
Loss or damage.
3. Deductible
There shall be no deductibles paid by You under this Service Agreement.
4. Service Agreement Period and Territory
This Service Agreement applies only to Losses that occur:
a. During the Service Agreement period shown in the Coverage Information Page;
b. Within the effective coverage period for each piece of equipment as specified in the
Schedule of Covered Property; and
c. While the Covered Property is within the United States.
5. Concealment or Fraud
At Our discretion, We may cancel or void the Service Agreement if You have:
a. Intentionally concealed or misrepresented any material fact or circumstance; or
b. Engaged in fraudulent conduct or false swearing by You relating to this service
agreement.
6. Prior known Precipitating condition
We will not cover Loss that results from a Precipitating condition that is known by You prior to
the effective date of this agreement.
New York State - Office of General Services
Equipment Maintenance Program (EMP) (Statewide)
RFP 21988PF - Appendix F — Model Maintenance Service Agreement
Page 6 of 13
7. Loss Settlement
We will not reimburse You for more than the Actual Cash Value of the property at the time of
Loss or damage. The Loss or damage will be ascertained or estimated on the basis of Actual
Cash Value of property similar in kind, age, model and manufacturer to the Covered Property at
the place and time of the Loss or damage.
We will not reimburse You for:
a. Any increase in the cost of repair or replacement necessitated by any ordinance or law
regulating or restricting repair, alteration, construction or installation;
b. Loss or damage to property useless to You; or
c. The cost of rental of substitute equipment of like kind, necessitated by a covered Loss,
for more than a ten (10) day period, unless otherwise specified in the Schedule of
Covered Property
The total reimbursement for rental charges plus Corrective Maintenance Charges shall not
exceed the Actual Cash Value of the property at the time of Loss.
If We agree that replacement of an item is more cost effective than repair, You may substitute
property of a similar kind, age, model, and manufacturer. Written authorization must be obtained
from Us prior to the replacement of any Covered Property. We will not be liable for the cost of
any unauthorized property replacement.
8. Special Duties
Upon discovery of a Precipitating condition, which may give rise to a claim under this agreement,
You must take all reasonable steps within Your power to minimize the extent of Loss. You must
preserve and protect any undamaged or defective parts of Covered Property and make them
available for inspection by Us or any of Our representatives. This obligation does not replace or
supersede any other obligations under this agreement.
9. Protective Safeguards and Physical Environment
You agree to maintain throughout each Service Agreement Period of this agreement such
protective safeguards as were in existence at the time of or installed subsequent to the first
effective date of this agreement. You further agree to take due care to maintain a physical
environment (levels of temperature, humidity, dust, etc.) in keeping with the manufacturer's
recommendation for the Covered Property.
10. Alteration of Risk
You must provide Us notice in writing prior to or as soon as possible after every material change
varying any of the facts or circumstances existing at the commencement of this contract, such as
the moving of Covered Property or nearby construction. Such alteration of risk shall be basis for
amendment of this Agreement.
11. Impairment of Recovery Rights
Any act or agreement by You after Loss or damage whereby any right of Yours to recover in
whole or in part for the Loss or damage to Covered Property against any carrier, bailee or other
party is released, impaired or lost will render this Service Agreement null and void as to that
Loss or damage. We are not liable for any Loss or damage, which, without Our written consent,
has been settled or compromised by You. It shall, however, be permissible for You, without
prejudice to this service agreement, to accept the ordinary Bills of Lading or Shipping Receipts
issued by carriers limiting their liability to less than the actual value.
12. Volunteer Payments
You must not, except at Your own expense, voluntarily make any payments, assume any
obligations, pay or offer any rewards, or incur any other expenses except as respects to
protecting property from further damage.
13. Notice of Loss
a. If You expect the cost to restore the equipment may exceed the Large Loss Notification Limit
specified on the Supplemental Coverage Information Page of this Service Agreement You
New York State - Office of General Services
Equipment Maintenance Program (EMP) (Statewide)
RFP 21988PF - Appendix F — Model Maintenance Service Agreement
Page 7 of 13
must report the Loss to Us prior to authorizing or commencing any service. Upon receipt of
Your notice of Loss, We reserve the right to research and recommend alternative sources
for parts and Labor to resolve the covered service event. This includes the right to obtain an
alternative proposal, at Our expense, to restore the covered item to Effective Operation.
Any alternative solution We proposed would use parts and services that comply with Original
Equipment Manufacturer ("OEM") specifications for the Covered property.
b. For routine corrective maintenance that will not reach or exceed the Large Loss Notification
Limit specified on the Supplemental Coverage Information Page, there is no preliminary
Loss notice requirement.
c. In all cases You must give Us satisfactory notice of Loss within the Loss Notification Period
specified on the Supplemental Coverage Information Page of this Service Agreement from
the date of Loss. The notice of Loss must include a description of the property involved, a
legible copy of the vendor service report, and corresponding vendor invoice.
We will not be liable for any Loss, damage or occurrence not reported in compliance with
this Section.
14. Service Agreement Schedule of Covered Property Changes
a. During the Service Agreement term, You must request all changes to the Service
Agreement Schedule of Covered Property in writing. if We accept the requested change,
the effective date of the change will be either the date You notify Us in writing to execute the
Service Agreement Schedule of Covered Property change, or an agreed future date. You
agree that any equipment You request to be added for coverage will be in good working
order with no known Precipitating condition.
b. All Service Agreement Schedule of Covered Property changes acceptable to Us will be
bound by a written modification issued by Us. You agree to pay the adjusted amount
reflecting the changes for the remainder of the term of the Service Agreement Schedule of
Covered Property.
c. We are not liable for any Loss or return Fee associated with Service Agreement Schedule of
Covered Property changes not reported in accordance with this Condition.
15. Abandonment.
There can be no abandonment to Us of any Covered Property.
16. Property of Others
Losses to property of others may be adjusted with and paid to:
a. You on behalf of the owner; or
b. the owner
If We pay the owner, We do not have to pay You. We may also choose to defend any suits
arising from the owners at Our expense.
17. Conformity with Statute
When a condition of this coverage is in conflict with an applicable law, that condition is amended
to conform to that law.
18. Examination
You must submit to examination under oath in matters connected with the Loss as often as We
reasonably request and give Us sworn statements of the answers. If more than one person is
examined, We have the right to examine and receive statements separately and not in the
presence of others.
19. Warranties, Maintenance Contracts, Service Agreements
a. This Service Agreement shall not apply to any Loss or damage to any Covered Property to
the extent that such Loss or damage is covered under any warranty, guarantee,
maintenance contract, service contract, or insurance contract.
New York State - Office of General Services
Equipment Maintenance Program (EMP) (Statewide)
RFP 21988PF - Appendix F — Model Maintenance Service Agreement
Page 8 of 13
b. The terms and conditions of any warranty, maintenance contract, service agreement, or any
other contract or agreement that You enter into with any third party does not bind Us related
to scheduled equipment, unless We consent to the agreement in writing.
20. Cooperation
You must cooperate with Us in performing all acts required by this Service Agreement.
21. Appraisal
If You and We do not agree on the amount of the Loss, the Actual Cash Value of the property or
the cost to repair or replace the property either party may demand that these amounts be
determined by appraisal.
If either party makes a written demand for appraisal, each will select a competent, independent
appraiser and notify the other of the appraiser's identity within twenty (20) days after the receipt
of the written-demand:=-Thetwo-appraisers will select a -competent; impartial -umpire within-15 - -- -
days, You or We can ask a judge of a court in the state where the appraisal is pending to select
an umpire. The appraisers will determine:
a. the amount of the Loss;
b. the Actual Cash Value of the property; and
c. the cost to repair or replace the property.
Each amount will be stated separately.
If the appraisers submit a written report of an agreement to Us, the agreement will establish
these amounts. If the appraisers fail to agree within a reasonable time, they will submit only
their differences to the umpire. A written agreement by any two of these three will establish the
amounts stated above.
Each appraiser will be paid by the party selecting that appraiser. The compensation of the
umpire and any other expenses of the appraisal will be shared equally by You and Us.
22. In -House Labor Reimbursement
In consideration of the reduced fees charged under this Service Agreement, it is understood and
agreed that members of Your staff are authorized to perform Labor to restore Covered Property
to Effective Operation following a Loss. You warrant that staff used to restore Covered Property
to Effective Operation have the necessary skill, experience and training to complete the repairs
and are properly licensed and certified by the manufacturer, if required.
We agree to reimburse You at the rate of $50.00 per hour for the actual hours of Labor
performed by Your staff.
23. Assignment
This Service Agreement may not be assigned by either party without the other parties written
consent, except that this Service Agreement may be assigned by You pursuant to a
governmental reorganization where the pertinent functions of You are transferred to a successor
governmental entity.
24. Cancellation, Non -renewal, and Conditional Renewal
a. You may cancel this service agreement for any reason by returning the service agreement
to Us or by giving Us written notice and stating at what future date coverage is to stop.
We may cancel this service agreement by written notice to You at the address shown on the
service agreement and to Your authorized agent or broker, if any. Our notice will specify the
grounds for cancellation. Proof of delivery or mailing is sufficient proof of notice.
We may cancel without cause upon ninety (90) days advance written notice before
cancellation is effective.
We may also cancel for cause only for one or more of the following reasons:
1) the fee has not been paid when due,
2) Your conviction of a crime arising out of acts increasing the hazard insured against;
3) discovery of fraud or material misrepresentation in obtaining the service agreement or in
New York State - Office of General Services
Equipment Maintenance Program (EMP) (Statewide)
RFP 21988PF - Appendix F — Model Maintenance Service Agreement
Page 9 of 13
the presentation of a claim thereunder;
4) after issuance of the service agreement or after the last renewal date, discovery of an
act or omission, or a violation of any service agreement condition that substantially and
materially increases the hazard covered against and which occurred subsequent to
inception of the current service agreement period;
5) material physical changes in the property covered, occurring after issuance or last
annual renewal anniversary date of the service agreement, which result in the property
becoming uninsurable in accordance with Our objective, uniformly applied underwriting
standards in effect at the time the service agreement was issued or last renewed; or
material change in the nature or extent of the risk, occurring after issuance or last
annual renewal anniversary date of the service agreement, which causes the risk of loss
to be substantially and materially increased beyond that contemplated at the time the
service agreement was issued or last renewed;
-6) -a determination -by -the -Superintendent -of Insurance -that -continuation -of -Our - present. -._ _._._
premium volume would jeopardize Our solvency or be hazardous to the interests of Our
clients, creditors, or the public;
7) a determination by the Superintendent of Insurance that a continuation of the service
agreement would violate, or would place Us in violation of, any provision of New York
Service Agreement Laws; or
8) where We have reason to believe, in good faith and with sufficient cause, that there is a
probable risk or danger that You will destroy, or permit to be destroyed, Your property
for the purpose of collecting the service agreement proceeds.
If We cancel this service agreement for any of the reasons listed in a. 1) through 8), We will
give You notice at least 30 days before cancellation is effective.
If We cancel this service agreement for reason 8) above, We will advise You that You must
act within ten days if You desire a review by the Service Agreement Department. We will
also simultaneously notify the Service Agreement Department of Our cancellation of Your
service agreement.
b. We may not renew or not renew with the same "terms", conditions, or rates, this service
agreement by written notice to You at the address shown in the policy and to Your
authorized agent or broker, if any. Proof of delivery or mailing is sufficient proof of notice.
These non -renewal or conditional renewal requirements will not apply when You, an agent
or broker authorized by You, or another contractor of Yours has mailed or delivered written
notice to Us that the service agreement has been replaced or is no longer desired.
If We do not renew this service agreement, We will mail or deliver to You Our written notice
at least 90 days, but not more than 120 days, before the end of the service agreement
period or the anniversary date. Our notice will specify the grounds for non -renewal.
If We decide not to renew this service agreement with the same "terms", conditions, or rates,
We will mail or deliver to You Our notice of conditional renewal at least 90 days, but not
more than 120 days, before the end of the service agreement period or anniversary date.
Our notice will state the reasons for conditional renewal and set forth the amount of any fee
increase and the nature of any other proposed changes. This provision applies to renewal
conditioned upon change of "limits", change in type of coverage, reduction of coverage,
increased deductible, addition of exclusion, or upon increased Fee in excess of 10%
(exclusive of any fee increase generated as a result of increased exposure units or as a
result of experience rating or loss rating).
c. Your return fee, if any, will be refunded at the time of cancellation or as soon as practical.
Payment or tender of the unearned fee is not a condition of cancellation.
25. Change, Modification, or Waiver of Service Agreement Terms
A waiver or change of the "terms" of this Service Agreement must be issued by Us in writing to
be valid. If We adopt a revision, which broadens coverage under this edition of Our service
agreement without an additional fee during the service agreement period, or within six months
before this coverage is effective, the broadened coverage will apply. If a change in forms
reduces coverage or "limits", We must notify You as provided under the non -renewal "terms"
contained in this service agreement.
26 Inspections
We have the right, but are not obligated, to inspect Your property and operations at any
reasonable time, subject to all then applicable security procedures and any operational
restrictions. This inspection may be made by Us or may be made on Our behalf. An inspection
Ncw York State - Office of General Services Page 10 of 13
Equipment Maintenance Program (EMP) (Statewide)
RFP 21988PF - Appendix F — Model Maintenance Service Agreement
or its resulting advice or report does not warrant that Your property or operations are safe,
healthful, or in compliance with laws, rules, or regulations. Inspections or reports are for Our
benefit only.
27. Reimbursements
Reimbursements for Corrective Maintenance Repairs shall be remitted directly to the vendor
within thirty (30) days of receipt by Us or Our designated agent of all required documentation.
IN WITNESS WHEREOF, the parties hereto have executed this Service Agreement as of the date first
above written.
_-_(Client)
Name:
Title:
By
(Company)
By
Name:
Title:
Federal I.D. No.:
CORPORATE ACKNOWLEDGMENT
STATE OF }
COUNTY OF
ss.:
}
On the day of in the year 20 _ , before me
personally came: , to me known, who,
being by me duly sworn, did depose and say that he/she/they reside(s) in
; that he/she/they is (are)
(the President or other officer or director or attorney in fact
duly appointed) of , the
corporation described in and which executed the above instrument; and that he/she/they signed his/her/their name(s)
thereto by authority of the board of directors of said corporation.
Signature and Office of Person Taking Acknowledgment
New York State - Office of General Services
Equipment Maintenance Program (EMP) (Statewide)
RFP 2I988PF - Appendix F — Model Maintenance Service Agreement
Page 11 of 13
AGENCY NAME
Schedule of Covered Property
Service Agreement Number:
AGENCY ADDRESS
/ /
CITY, STATE ZIP
Location: 888 Main Street, Mail Room
Effective Dates: // -
Report Date: _I_I_
1234 ABC Vendor Company PQR-6543 555555 Mailing Mac ' e 1/1/05 $
0642 XYZ Vendor Company
7002 XYZ Vendor Company
789-A
5432
222-Z 93
5678 ABC Vendor Company PQR-1050
Location Totals: 888 Main Street, Mail
Location: 777 Main Stre
New York S
Statewid
Solicit
f General
intenance P
pendix D —Cost
Annual Ton
Annual ► v
Sup cries ba
22222
A• •ualRibi•
Copier
Ti
n lim
'oom # em• a
is Location = 4
1/1105
1/1/05
$45
$185
$520
$13,200
$45
185
$15,250 $13,950
Page 12 of 13
6543 XYZ Vendor Company 732-C 6273 Copier
Drums included
Annual Toner limit = 8
Paper & Staples exclude
Supplies based on 290 000
6544 XYZ Vendor Company 320-A 2468
6569 XYZ Vendor Company 963-F 0135
2846 LMN Vendor Company HG32QR
2847 LMN Vendor Company
Location Totals: 777 M
esktop P4
1
000 annual copies
$290 $290
$2,100 $2,100
Se• rity Sys -m 4/8/05 $3,500 $2,600
ded
Portals 4/8/05 $9,000 $6,700
(including overtime) included
ent # Items at this Location = 5 $15,910 $12,710
Total # ocations - Total # Equipment Items = 9
New York State - Office of General Services
Statewide Equipment Maintenance Program
Solicitation 1551 — Appendix D —Cost Proposal
$31,160 $26,650
Page 13 of 13