NIAGARA FRONTIER TRANSPORTATION AUTHORITY CONTRACT BID DOCUMENTS FOR 8D LEAD ACID BATTERIES NFTA BID NO. 4475

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1 NIAGARA FRONTIER TRANSPORTATION AUTHORITY CONTRACT BID DOCUMENTS FOR 8D LEAD ACID BATTERIES NFTA BID NO The following items are to be included with your submitted bid and made part of any agreement entered into pursuant to this Invitation to Bid. SUBMIT 3 HARD COPIES OF PROPOSAL and 1 ELECTRONIC COPY (CD OR FLASH DRIVE). Itemized Proposal Non-Collusive Bidding Certificate Disclosure of Prior Non-Responsibility Determinations Bidder s/proposer s Affirmation and Certification Acknowledgment of Addenda Technical Submittals Refer to Section 11.0 Warranty Information Lead Time BIDDERS MUST REGISTER AND DOWNLOAD THIS BID FROM THE NFTA WEB SITE, IN ORDER TO BE NOTIFIED OF SUBSEQUEST AMENDMENTS TO THIS BID. ONLY REGISTERED SUPPLIERS WILL RECEIVE NOTIFICATION OF NEW BIDS AS THEY BECOME AVAILABLE. THE BID NUMBER MUST BE REFERENCED ON ALL SUBMITTALS AND CORRESPONDENCE.

2 NIAGARA FRONTIER TRANSPORTATION AUTHORITY INVITATION TO BID NO Sealed bids will be received and publicly opened by the undersigned on APRIL 2, 2015 at 11:00 AM Local Time: for 8D LEAD ACID BATTERIES in accordance with the attached bid documents. The Authority reserves the right to reject any or all bids, or to waive any informality in the bid. Bids shall be submitted in a sealed envelope showing Bidder s name and addressed to: NIAGARA FRONTIER TRANSPORTATION AUTHORITY Department of Procurement - Fifth Floor Attention: Cindy Judd 181 Ellicott Street Buffalo, New York phone, fax Cindy_Judd@nfta.com MARK ON LOWER LEFT HAND CORNER OF ENVELOPE: BID NO: 4475 OPENING DATE: APRIL 2, 2015 LOCAL TIME 8D LEAD ACID BATTERIES NAME OF BIDDER: BIDS MUST BE RECEIVED AT 181 ELLICOTT STREET, 5TH FLOOR, PROCUREMENT DEPARTMENT, BEFORE THE TIME DESIGNATED FOR OPENING IN ORDER TO BE CONSIDERED. All correspondence, communications and/or contact with the NFTA in regard to any aspect of this bid shall be with the Procurement Official designated above or her designated representative. Prospective bidders, or their representatives, shall not make contact with or communicate with any representatives of the NFTA, including employees and consultants, other than the designated Procurement Official, in regard to any aspect of this bid. Andrea Herald Manager, Procurement Department 2

3 NFTA BID NO TECHNICAL SPECIFICATIONS For questions regarding these specifications see INSTRUCTIONS TO BIDDERS, 2. EXAMINATIONS AND EXPLANATIONS. 1.0 SCOPE It is the intent of these specifications to provide the minimum acceptable criteria for the procurement, delivery to Buffalo, New York, and warranty of 8D lead acid batteries for buses used in the provision of transit services to the public for the period between 4/10/15 through 4/9/16. Batteries must be delivered no later than 48 hours from the time they are requested. 2.0 BRAND AND NAME OR EQUAL A Brand Name is used to identify the characteristics and level of quality that will satisfy NFTA s requirements. Proposed or equal product must be of the same quality and comply with the manufacturer s requirements and specifications; physical, functional and /or performance characteristics. The bidder shall state the proposed manufacturers name and part number and provide documentation sufficient, in the NFTA s judgment, to permit a determination as to whether the product bid constitutes an or equal 3.0 REQUIREMENTS The batteries shall meet or exceed the listed criteria: Deka 908DFT/T928 ( or approved equal. Battery Council International (BCI) Group 8D 12 volts End mount terminals ½ UNC thread positive terminal, 3/8 UNC thread negative terminal Minimum 1425 CCA (Cold Cranking 0 degrees Fahrenheit Minimum 440A Reserve Capacity Minimum 1730 Ref 32 degrees Fahrenheit (Reference Cranking Amps) Suitable for a heavy duty transit bus application Compatible with existing battery trays, battery hold down arrangements and cables 4.0 ESTIMATED USAGE 3

4 The anticipated annual battery usage is 500 batteries. This quantity is not a guarantee. The quantities listed are based on previous year's usage and will be ordered as needed. This figure is provided for your information only, and in no way represents a commitment from NFTA to purchase that quantity of material. 5.0 PRICING The unit price bid shall include the return of a used, dead battery or core. All shipping costs shall be included in the unit price bid. The intent is to purchase the batteries as needed throughout the term of the contract. Pricing shall be a fixed price for the full term of the contract. 6.0 ENVIRONMENTAL The bidder must specify with the bid, whether the used, dead batteries removed from the NFTA premises are to be recycled or disposed as hazardous waste. Recycling Requirements The paperwork accompanying new batteries when delivered must list the quantities of batteries delivered and batteries removed from the NFTA premises. Disposal Requirements Manifesting documents shall be furnished to the NFTA for all pickups or exchanges. Documentation shall be sent to the NFTA Environmental Engineer at 181 Ellicott St, Buffalo, NY Other Requirements The NFTA reserves the right to audit all transport, storage, disposal, or recycling facilities associated with this contract. Questionnaire The successful bidder must complete the attached TECHNICAL EVALUATION QUESTIONNAIRE for Landfill/Recycling Facilities for lead acid batteries and return it to the NFTA Environmental Engineer at 181 Ellicott Street, Buffalo NY WARRANTY The warranty shall include a minimum 12-month pro-rated period with free replacement during the first 6 months of use. Information about the warranty 4

5 coverage, and any additional warranties offered by manufacturer, shall be included with bid. 8.0 DELIVERY OF GOODS AND SERVICES Only batteries of the type approved by the acceptance of a bid are permitted to be purchased and exchanged as a result of this bid. The batteries shall be delivered in multiples of 6, between the hours of 8:00 am and 3:00 pm, Monday thru Friday, within 24 to 48 hours after notification to the listed locations: NFT Metro Babcock Garage 721New Babcock St. Buffalo, NY NFT Metro Cold Spring Garage 78 East Ferry St. Buffalo, NY NFT Metro Frontier Garage 1000 Military Rd. Buffalo, NY NOTE: If the lead time submitted in the Itemized Proposal Form exceeds 48 hours, or if the time frame is not specified, the bid may be considered nonresponsive. 9.0 PACKAGING AND MARKING The batteries shall be packaged according to industry standards to ensure undamaged delivery. All packages shall be marked with the manufacturer's name, the trade name of the batteries and the quantity contained therein DOCUMENTS/ MANUALS The contractor shall furnish a quantity of 4 manuals to assist the NFTA staff in the installation and maintenance of the batteries TECHNICAL SUBMITTALS The technical information necessary for the NFTA to determine that a proposed battery meets or exceeds the specification must be submitted with the bid. 5

6 The bid must also include the proposed battery manufacturer s name, manufacturer s part number, product name, model number and warranty information EXCEPTIONS/DEVIATIONS Any exceptions, deviations or alternatives to the specifications must be noted and submitted as part of the bid form. 6

7 NFTA BID NO ITEMIZED PROPOSAL 8D LEAD ACID BATTERIES Firm s Name: ITEM# QUANTITY DESCRIPTION MANUF.NAME / MANUF. PART NO./ PRODUCT NAME / MODEL NO D LEAD ACID BATTERIES UNIT TOTAL AMT AMT BID BID $ $ GRAND TOTAL AMOUNT BID $ GRAND TOTAL AMOUNT BID WRITTEN IN WORDS Payment Terms: Lead Time*: * NOTE: If the lead time submitted exceeds 48 hours (refer to Section 8.0), or if time frame is not specified, the bid may be considered non-responsive. EXCEPTIONS Any exceptions, deviations or alternatives to the specifications must be noted and submitted as part of the bid form. ITEM DESCRIPTION OF EXCEPTIONS

8 NFTA BIDNO D LEAD ACID BATTERIES The undersigned submits the following bid, which is in complete conformity with the intent of the bid documents. The bidder agrees that should it be awarded a contract on the basis of this bid through the issuance of a contract or purchase order from the Niagara Frontier Transportation Authority, it will provide the materials, supplies, equipment or services in strict compliance with the contract documents for the compensation stipulated herein. The bidder agrees that its bid shall remain effective for a period of 90 days from the formal bid opening date. Bidders with the submission of this bid certify that they are not on the Comptroller General s List of Ineligible Contractors. Firm Name: Federal ID No.: Contact Person: Address: Authorized Signature: Title: Date: Telephone/Fax No.: address: 8

9 INSTRUCTIONS TO BIDDERS 1. CONTRACT DOCUMENTS The contract documents consist of the Instructions to Bidders, Bid Forms, General Conditions, Technical Specification and any addenda or change orders to the contract. The contract documents shall constitute the entire agreement between the parties. 2. EXAMINATIONS AND EXPLANATIONS Bidders must carefully examine these contract documents. Bidders who seek changes, variances, explanations or clarifications of the contract documents must submit their inquiry in writing via to Cindy Judd no later than March 27, Any response that the Niagara Frontier Transportation Authority (NFTA) may choose to make will be by a written addendum to the contract documents. The NFTA will not be bound by any informal explanation, clarification or interpretation, oral or written, by whomsoever made, that is not incorporated into an addendum to the contract documents. 3. ITEMIZED PROPOSAL Bidders must submit a proposal on the form furnished herewith in ink or typewritten without alteration or addition of any kind. Except for catalogs or other descriptive literature specified or requested, any letters or other papers attached to proposals or submitted under separate cover containing contingency clauses or modifications hereto will not be accepted. Any deviation or minor points of variance shall be specifically shown and stated in the space provided on the itemized proposal and only those deviations or minor variations contemplated or acceptable will be considered. No person, partnership or corporation shall submit more than one proposal, either directly or by agent. Each bidder shall sign said proposal with his/her full name, in his/her own handwriting and, if a partnership, each partner must sign; if a corporation, the corporate name shall be signed, and signed and acknowledged by a duly authorized officer thereof. The Bidder shall submit 3 hard copies of their bid and 1 electronic copy. The electronic copy of the bid must be included with the hard copies. The electronic copy may be submitted in the form of a CD or flash drive. An ed copy of the electronic version will not be accepted. 4. REJECTION OR DISQUALIFICATION Bidders are cautioned that failure to submit any of the required bid forms, the bid security, if required, or bid on all necessary items listed may result in rejection of the bid. If required to do so, a bidder shall submit documentation that it has sufficient experience and the technical and financial capabilities to perform the work. 5. PRICING INSTRUCTIONS The bid price must clearly indicate the unit price of the complete unit offered including a clear indication of the cost of each optional equipment item necessary to meet this specification delivered F.O.B. Destination. 6. BID PROTEST PROCEDURES 9

10 6.1 Pre-Bid Opening Protests. If a bidder can demonstrate that the contract documents issued by the NFTA are unduly exclusionary and restrictive or that federal, state or local laws or regulations have been violated during the course of the procurement, then the bidder may seek a review by the Executive Director or his appointed representative, at 181 Ellicott Street, Buffalo, New York Protests shall be clearly identified as Protests and submitted in writing as early as possible but no later than five (5) business days before bid opening. Within four (4) business days after receipt of a pre-bid protest, the Executive Director shall make one of the determinations listed in paragraph Post-Bid Opening Protests. A protest to the acceptance or rejection of any or all offers or bids to a contract, or to the award thereof, or to any such action proposed or intended by the NFTA must be received in writing by the Executive Director no later than five (5) business days after the protesting party first learned, or reasonably ought to have learned, of the action or the proposed or intended action to which he/she protests. 6.3 In the event the protestor alleges that the Executive Director or the representative appointed by the Executive Director to serve as Decision-Maker for the particular protest, engaged in improper conduct during the subject procurement, the General Counsel shall serve as the Decision-Maker. In the event it has been alleged that the General Counsel has engaged in improper conduct during the subject procurement, either the Executive Director or the General Manager of Engineering shall serve as the Decision-Maker. 6.4 Rulings on Protests. Within four (4) business days, the Executive Director shall render one of the following determinations: (a) Protest is overruled. (b) Protest is substantiated. Executive Director shall issue instructions to remedy issues relating to the protest. (c) Procurement activity is suspended until written notification by the Executive Director. The determination shall be in writing and shall provide at a minimum a general response to each material issue raised in the protest. All documents submitted by the protestor and/or NFTA Staff and reviewed by the Decision-Maker in the reaching of a determination shall form and be retained by the NFTA as the formal record of the dispute resolution process. The issuance of the foregoing determination is the NFTA's final decision of the dispute. All interested parties shall be notified of any protests that are filed. The NFTA shall refrain from awarding a contract within five (5) business days of the date of a decision rendered by the Executive Director regarding a protest, unless the NFTA determines that: (a) The items to be procured are urgently required. (b) Delivery or performance will be unduly delayed by failure to make a prompt award. 10

11 (c) Failure to make a prompt award will otherwise cause undue harm to the NFTA or the federal government. 6.5 Protestor's Appeal to Federal or State Agencies. In the event that the NFTA fails to have written protest procedures or fails to abide by the protest procedures set forth above, and federal or state funds are participating in the procurement, then the protestor may seek a review by the appropriate funding agency. Protestors shall file such a protest in accordance with the requirements set forth below, not later than five (5) business days after a final decision is rendered under the NFTA's protest procedure. In instances where the protestor alleges that the NFTA failed to make a final determination on the protest, protestors shall file a protest with the appropriate agency not later than five (5) business days after the protestor knew or should have known of the Authority's failure to render a final determination on the protest. 7. EVALUATION AND AWARD Each bid timely received and in the NFTA's hands at the time set for the bid opening shall constitute an offer to perform the work in strict accordance with the terms and conditions found in these contract documents. The NFTA will evaluate each bid pursuant to the NFTA Procurement Guidelines. If a contract is awarded, it will be awarded to the lowest responsive responsible bidder. If a contract is awarded, the NFTA will award through issuance of a purchase order or require the execution of an agreement. The bidder will not be allowed to take advantage of any errors or omissions. The NFTA reserves the right to reject any and all bids and to waive any informality. 8. TAXES The NFTA is exempt from payment of New York State and local taxes. Neither the itemized proposal or any requests for payment pursuant to this Agreement to the NFTA shall include any federal, state or local tax unless such a tax is specifically required to be imposed upon said itemized proposal or payment by the laws and/or regulations of the federal government or any state government. The NFTA will furnish the necessary exemption certificates. 9. MATERIALS Unless otherwise specifically provided, all equipment, material, and articles supplied or incorporated in the work covered by these contract documents shall be new and of the most suitable grade for the purpose intended. Unless otherwise specifically indicated, reference to any equipment, material, article or patented process, by trade name, make or catalog number shall be regarded as establishing a standard of quality and shall not be construed as limiting competition and the Contractor may, at its option, use any equipment, material, article or process which is equivalent to that named. The NFTA shall be the sole judge of the quality and suitability of any proposed alternative equipment, material, article or process. The burden of proving the quality and suitability of an alternative shall be upon the Contractor. Any information required by the NFTA in judging an alternative will be supplied by the Contractor at no expense to the NFTA. 10. SINGLE BID SITUATIONS In the event a single bid is received, a price and/or cost analysis will be made before the award of a contract. A price analysis is the process of examining the bid and evaluating 11

12 the price without evaluating separate cost elements. A price analysis, by comparing the bid to other similar procurements, will be based on an established or competitive price of the bid items used in the comparison. This comparison will be made to a purchase of similar quantity and involving similar specification and where a difference exists, a detailed analysis will be made of this difference and the costs thereof. 11. EXECUTORY CLAUSE The Contractor specifically agrees that this contract shall be deemed executory only to the extent of monies available and no liability shall be incurred by the NFTA beyond the monies available for this contract. 12. PERMITS AND COMPLIANCE WITH LAWS The NFTA, in the construction, installation and operation of transportation facilities, is not required to obtain licenses or permits from any municipal or political subdivision of the State of New York. The Contractor, therefore, will not be required to obtain licenses or permits from any county, city, town or village agency or department. The Contractor shall, however, secure and pay for all permits, fees and licenses necessary to comply with applicable federal or state laws. Except as provided above, the Contractor shall comply with all federal, state, county and municipal laws, codes and regulations in connection with the prosecution of the work. The Contractor shall protect, indemnify and hold harmless the NFTA and the Engineer and all of their officers, agents and employees against any and all claims and liabilities arising from or based on the violation of any such requirement or law whether by the Contractor, its employees, agents or subcontractors. 13. DISADVANTAGED BUSINESS ENTERPRISE POLICY STATEMENT In accordance with the requirements of 49 CFR, Part 26, dated March 4, 1999 entitled, Participation by Disadvantaged Business Enterprises in Department of Transportation Programs, the Niagara Frontier Transportation Authority (NFTA), is committed to the development and implementation of an effective Disadvantaged Business Enterprise (DBE) Program. The NFTA has received Federal financial assistance from the Department of Transportation, and as a condition of receiving this assistance, the NFTA has signed an assurance that it will comply with 49 CFR Part 26. It is the policy of the NFTA to ensure that DBEs, as defined in Part 26, have an equal opportunity to receive and participate in DOT-assisted contracts. It is also the policy of the NFTA: 1. To ensure nondiscrimination in the award and administration of DOT-assisted contracts; 2. To create a level playing field on which DBEs can compete fairly for DOT assisted contracts; 3. To ensure that the DBE Program is narrowly tailored in accordance with applicable law; 4. To ensure that only firms that fully meet 49 CFR, Part 26 eligibility standards are permitted to participate as DBEs; 5. To help remove barriers to the participation of DBEs in DOT-assisted contracts; and 12

13 6. To assist the development of firms that can compete successfully in the market place outside the DBE program. The Director of Equal Opportunity/Diversity Development has been delegated as the DBE Liaison Officer. In that capacity, the Director of Equal Opportunity/Diversity Development is responsible for implementing all aspects of the DBE Program. Implementation of the DBE program is accorded the same priority as compliance with all other legal obligations incurred by the NFTA in its financial assistance agreements with the Department of Transportation. The NFTA has disseminated this policy statement to the Board of Commissioners and all the components of our organization. We have distributed this statement to DBE and non-dbe business communities that perform work for the NFTA on DOT-assisted contracts by inclusion in bid specifications, Requests for Qualifications and Requests for Proposals. 14. NEW YORK STATE SUBCONTRACTORS AND SUPPLIERS 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 Empire State Development, Procurement Assistance Unit, Phone: (518) , or to A directory of certified minority and women-owned business enterprises is available from Empire State Development, Minority and Women's Business Development Div., 30 South Pearl St., Albany, NY 12245, Phone: (518) , Fax: (518) Bidders located in foreign countries are hereby notified that New York State may seek to obtain and assign or otherwise transfer offset credits created by this procurement contract to third parties located in New York State. The successful contractor shall agree to cooperate with the State in efforts to get foreign countries to recognize offset credits created by the procurement contract. The Omnibus Procurement Act requires that by signing this bid proposal, contractors certify that whenever the total bid amount is greater than $1 million: 1. The successful contractor shall document efforts to encourage the participation of New York State Business Enterprises as suppliers and subcontractors on this project, and has retained the documentation of these efforts to be provided upon request to the State. 2. Documented efforts by a successful contractor shall consist of and be limited to showing that such contractor has: a. Solicited bids, in a timely and adequate manner, from New York State business enterprises including certified minority and women-owned businesses, or b. Contacted Empire State Development to obtain listings of New York State business enterprises, or c. Placed notices for subcontractors and suppliers in newspapers, journals and other trade publications distributed in New York State, or 13

14 d. Participated in bidder outreach conferences. e. If the Contractor determines that New York State business enterprises are not available to participate on the contract as subcontractors or suppliers, the Contractor shall provide a statement indicating the method by which such determination was made. f. If the Contractor does not intend to use subcontractors on the contract, the Contractor shall provide a statement verifying such intent. 3. The Contractor has complied with the Federal Equal Opportunity Act of 1972 (P.L ) as amended; 4. 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 Community Services 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. 15. CONTRACTOR REQUIREMENTS AND PROCEDURES FOR BUSINESS PARTICIPATION OPPORTUNITIES FOR NEW YORK STATE CERTIFIED MINORITY- AND WOMEN-OWNED BUSINESS ENTERPRISES AND EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITY GROUP MEMBERS AND WOMEN New York State Law. Pursuant to New York State Executive Law Article 15-A and 5 NYCRR the NFTA recognizes its obligation under the law to promote opportunities for maximum feasible participation of certified minority- and women-owned business enterprises and the employment of minority group members and women in the performance of NFTA contracts. In 2006, the State of New York commissioned a disparity study to evaluate whether minority and women-owned business enterprises had a full and fair opportunity to participate in state contracting. The findings of the study were published on April 29, 2010, under the title The State of Minority and Women-Owned Business Enterprises: Evidence from New York ( Disparity Study ). The report found evidence of statistically significant disparities between the level of participation of minority- and womenowned business enterprises in state procurement contracting versus the number of minorityand women-owned business enterprises that were ready, willing and able to participate in state procurements. As a result of these findings, the Disparity Study made recommendations concerning the implementation and operation of the statewide certified minority- and women-owned business enterprises program. The recommendations from the Disparity Study culminated in the enactment and the implementation of New York State Executive Law Article 15-A, which requires, among other things, that the NFTA establish goals for maximum feasible participation of New York State Certified minority- and womenowned business enterprises ( MWBE ) and the employment of minority groups members and women in the performance of New York State contracts. Business Participation Opportunities for MWBEs. For purposes of this solicitation, the NFTA hereby establishes an overall goal of 30% for Minority and Women-Owned Business Enterprises ( MWBE ) participation, 15% New York State certified minority-owned business enterprises ( MBE ) participation and 15% for New York State certified women-owned 14

15 business enterprises ( WBE ) participation based on the current availability of qualified MBEs and WBEs. A Contractor on this Agreement must document its good faith efforts to provide meaningful participation by MWBEs as subcontractors or suppliers in the performance of this Agreement and the Contractor agrees that the NFTA may withhold payment pending receipt of the required MWBE documentation. The directory of MWBEs can be viewed at the following internet address: For guidance on how the NFTA will determine a Contractor s good faith efforts, refer to 5 NYCRR section In accordance with 5 NYCRR section , the Contractor acknowledges that if it is found to have willfully and intentionally failed to comply with the MWBE participation goals set forth in the Agreement, such finding constitutes a breach of this Agreement and the NFTA may withhold payment from the contractor as liquidated damages. Such liquidated damages shall be calculated as an amount equaling the difference between: (1) all sums identified for payment to MWBEs had the Contractor achieved the contractual MWBE goals; and (2) all sums actually paid to MWBEs for work performed or materials supplied under this Agreement. By submitting a bid, a bidder on this Agreement agrees to demonstrate its good faith efforts to achieve its goals for the utilization of MWBEs by submitting evidence thereof through the New York State Contract System ( NYSCS ), which can be viewed at Equal Employment Opportunity (EEO). The Contractor agrees to be bound by the provisions of Article 15-A and the MWBE Regulations promulgated by the Division of Minority and Women s Business Development of the Department of Economic Development. If any of these terms or provisions conflict with applicable law or regulations, such laws and regulations shall supersede these requirements. The Contractor shall comply with the following provisions of Article 15-A: 1. Contractor and subcontractor performing work on this Agreement shall undertake or continue existing EEO programs to ensure that minority group members and women are afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability or marital status. For these purposes, EEO shall apply in the areas of recruitment, employment, job assignment, promotion, upgrading, demotion, transfer, layoff, or termination and rates or pay or other forms of compensation. 2. The Contractor shall submit an EEO policy statement to the NFTA within 72 hours after the date of notice by the NFTA of intent to award the Agreement. 3. If the Contractor or Subcontractor does not have an existing EEO policy statement, the NFTA will provide the Contractor or Subcontractor with a model statement. 4. The Contractor s EEO policy statement shall include the following language: a. The Contractor will not discriminate against any employee or applicant for employment because of race, creed, color, national origin, sex, age disability or marital status, will undertake or continue existing EEO programs to ensure that minority group members and women are afforded equal employment opportunities without discrimination, and shall make and document its conscientious and active efforts to employ and utilize minority group members and women in its work force. b. The Contractor shall state in all solicitations or advertisements for employees that, in the performance of this Agreement, all qualified applicants will be afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability or marital status. 15

16 c. 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. d. The Contractor will include the provisions of subdivisions (a)-(c) and the clause entitled Human Rights Law in every subcontract in such a manner that the requirements will be binding upon each Subcontractor as to work in connection with this Agreement. In the event this Agreement is for an amount in excess of $250,000, the Contractor shall submit a staffing plan to document the composition of the proposed workforce to be utilized in the performance of this Agreement by the specified categories listed, including ethnic background, gender, and Federal occupational categories. The Contractor shall complete the staffing plan form and submit it as part of their bid or within a reasonable time, but no later than the time of award of this Agreement. Human Rights Law. The Contractor shall comply with the provisions of the Human Rights Law, all other State and Federal statutory and constitutional non-discrimination provisions. The Contractor and Subcontractors shall not discriminate against any employee or applicant for employment because of race, creed (religion), color, sex, national origin, sexual status or domestic violence victim status, and shall also follow the requirements of the Human Rights Law with regard to non-discrimination on the basis of prior criminal conviction and prior arrest. MWBE Utilization Plan. The Contractor represents and warrants that Contractor has submitted an MWBE Utilization Plan, by submitting evidence thereof through the New York State Contract System ( NYSCS ), which can be viewed at provided, however, that the Contractor may arrange to provide such evidence via a non-electronic method to the NFTA, either prior to, or at the time of, execution of this Agreement. The Contractor agrees to use such MWBE Utilization Plan for the performance of MWBEs on this Agreement pursuant to the prescribed MWBE goals set forth above. The Contractor further agrees that a failure to submit and/or use such MWBE Utilization Plan shall constitute a material breach of the terms of this Agreement. Upon the occurrence of such a material breach, the NFTA shall be entitled to any remedy provided herein, including but not limited to a finding of the Contractor non-responsiveness. Waivers. For Waiver Requests the Contractor should use the NYSCS, provided, however, that the Contractor may arrange to provide such evidence via a non-electronic method to the NFTA. If the Contractor, after making good faith efforts, is unable to comply with MWBE goals, the Contractor may submit a Request for Waiver documenting good faith efforts by the Contractor to meet such goals. If the documentation included with the waiver request is complete, the NFTA shall evaluate the request and issue a written notice of acceptance or denial within twenty days of receipt. If the NFTA, upon review of the MWBE Utilization Plan and updated Quarterly MWBE Contractor Compliance Reports determines that the Contractor is failing or refusing to comply with the MWBE Contract Goals and no waiver has been issued in regards to such noncompliance, the NFTA may issue a notice of deficiency to the Contractor. The 16

17 Contractor must respond to the notice of deficiency within 7 business days of receipt. Such response may include a request for partial or total waiver of MWBE Contract Goals. Quarterly MWBE Contractor Compliance Report. The Contractor is required to submit a Quarterly MWBE Contractor Compliance Report through the NYSCS, provided, however, that the Contractor may arrange to provide such evidence via a non-electronic method to the NFTA by the 10 th day following each end of quarter over the term of this Agreement documenting the progress made towards achievement of the MWBE goals of this Agreement. Liquidated Damages MWBE Participation. Where the NFTA determines that the Contractor is not in compliance with the requirements of this Agreement and the Contractor refuses to comply with such requirements, or if the Contractor is found to have willfully and intentionally failed to comply with the MWBE participation goals, the Contractor shall be obligated to pay the NFTA liquidated damages. Such liquidated damages shall be calculated as an amount equaling the difference between: (1) all sums identified for payment to MWBEs had the Contractor achieved the contractual MWBE goals; and (2) all sums actually paid to MWBEs for work performed or materials supplied under this Agreement. In the event a determination has been made which requires the payment of liquidated damages and such identified sums have not been withheld by the NFTA, the Contractor shall pay such liquidated damages to the NFTA within 60 days after they are assessed by the NFTA unless prior to the expiration of such sixtieth day, the Contractor has filed a complaint with the Director of the Division of Minority and Woman Business Development pursuant to section 313 (8) of the Executive Law in which event liquidated damages shall be payable if the Director renders a decision in favor of the NFTA. 17

18 1. INDEMNITY CLAUSE GENERAL CONDITIONS Contractor shall indemnify, defend and hold the NFTA harmless from and against all liability for injuries to persons or damage to property caused by Contractor, its agents, representatives, subcontractors or subcontractor's agents, or representatives. The NFTA shall give the Contractor prompt and timely notice of any claim made or suit instituted which in any way, directly or indirectly, contingently, or otherwise, affects or might affect the Contractor in the furtherance of the work to be done or goods to be delivered under the terms of this contract. 2. NON-ASSIGNMENT The Contractor agrees not to assign, transfer, convey, sublet or otherwise dispose of this contract or any part thereof, or of its right, title or interest therein or its power to enter into this contract to any person, company or corporation without the previous consent in writing of NFTA. 3. CONTRACTUAL RELATIONSHIP No contractual relationship shall exist under this contract other than the contractual relationship between NFTA and the Contractor. The Federal Government shall have no obligation or liabilities to the Contractor. 4. TERMINATION FOR CONVENIENCE The NFTA may terminate this contract for its convenience at any time in whole or in part as to any undelivered goods and any unperformed work in which event the NFTA and the Contractor will negotiate an equitable settlement payment for the terminated portion consisting of the Contractor's cost to date of termination plus a reasonable profit thereon, and taking into consideration such changes attendant to delays of other customer orders and clearing of assembly lines, less any value to the Contractor. 5. TERMINATION FOR DEFAULT If the Contractor fails to deliver any part of the goods or to complete the work within the time specified herein, or otherwise defaults in performance hereunder, the NFTA may, by written notice to the Contractor, terminate this contract in whole or in part. 6. WARRANTY The materials, supplies and equipment furnished shall be guaranteed for not less than one year, except where longer periods of warranty are set forth in the Technical Specifications, from the date of acceptance, against any defect in workmanship, material or design. Such defects shall be promptly rectified and defective parts replaced without any cost to the NFTA. 7. INSTRUCTION If requested in the Technical Specifications, the Contractor must provide instruction classes in the operation and maintenance of any mechanical components to the NFTA's maintenance or operations personnel. 18

19 8. WORKMANSHIP All work under this contract shall be performed in a skillful and workmanlike manner. The Contractor is required to remove any employee the NFTA deems incompetent, careless or otherwise objectionable. 9. NEW YORK STATE BUY AMERICA PROVISIONS All purchase contracts for supplies, material or equipment involving an estimated expenditure in excess of fifty thousand dollars shall require with respect to materials, supplies and equipment made of, fabricated from, or containing steel components, that such steel components be produced or made in whole or substantial part in the United States, its territories or possessions. The provisions of this paragraph shall not apply to motor vehicles and automobile equipment assembled in Canada in conformity with the United States - Canadian trade agreements known as the "Automotive Products Trade Act of 1965," or any amendments thereto. 10. INDIVIDUALS WITH DISABILITIES The Contractor shall comply with all applicable requirements of the Americans with Disabilities Act of 1990, 42 U.S.C et. seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794; Section 16 of the Federal Transit Act, 49 U.S.C. appl and the following: 49 C.F.R. Subpart ; 29 C.F.R. Part 1630 and 47 C.F.R. Part FEDERAL AND STATE LABOR LAW REQUIREMENTS Each laborer, workman or mechanic employed by the Contractor or subcontractor about or upon the work to be performed under this Agreement, shall be paid not less than once a week and not less than the prevailing minimum wages required by the U.S. Department of Labor for federally and federally-assisted construction. Prevailing wage rates for laborers, workmen and mechanics have also been determined by the New York State Department of Labor. See the Prevailing Wage Rates set forth herein. In the event of difference between federal and state wage rates, the Contractor will be required to pay laborers, workmen and mechanics not less than the highest applicable rate established by either the U.S. Department of Labor or the Department of Labor of the State of New York. The Contractor shall comply with all federal laws, rules and regulations in regard to its employment of laborers, workmen and mechanics, including but not limited to the Davis-Bacon Act, the Copeland Act, the Copeland Regulations of the Secretary of Labor (29 CFR, Part 3), the Contract Work Hours and Safety Standards Act and 29 CFR Parts 5 and The Authority is obligated to report all disputes concerning payment of prevailing wage rates or classifications promptly to the Department of Transportation for its referral to the Department of Labor. 12. ENERGY EFFICIENCY Energy using products must comply with New York State Executive Order 111. A copy of the Executive Order may be obtained from the New York State Energy Research and Development Authority toll free at NYSERDA or on the web at 19

20 13. PATENT INFRINGEMENT The Contractor warrants that the sale of any item hereunder does not infringe any patent, copyright or trademark. The Contractor agrees to defend, indemnify and save the NFTA harmless from any loss, damage or expense, which may result from patent, copyright or trademark infringement through the aforesaid sale or use. 14. PROMPT PAYMENT RULES AND REGULATIONS The following prompt payment rules and regulations set forth provisions which are intended to improve relationships between the Authority and its contractors, vendors and all those providing services or supplies through contractual relationship with the Authority. These rules and regulations are promulgated consistent with directives set forth in the Public Authorities Law Section Definitions. As used in these rules and regulations, the following terms shall have the following meanings unless the context shall indicate other or different meaning: (a) "Authority" means Niagara Frontier Transportation Authority and its subsidiary corporations. (b) "Contract" means an enforceable agreement entered into between the Authority and a contractor. (c) "Contractor" means any person, partnership, private corporation or association: (i) selling materials, equipment or supplies, or leasing property or equipment to the Authority; (ii) constructing, reconstructing, rehabilitating or repairing buildings, highways or other improvements for or on behalf of the Authority; or (iii) rendering or providing services to the Authority pursuant to a contract. (d) "Designated payment office" means the office designated by the Authority to which a proper invoice is to be submitted by a contractor. (e) "Prompt payment" means payment of a debt due and owing by the Authority before interest accrues thereon pursuant to these regulations. (f) "Proper invoice" means a written request for a contract payment that is submitted by a contractor setting forth the description, price and quantity of goods, property, or services delivered or rendered, in such form and supported by such other substantiating documentation as the Authority may reasonably require. (g) "Receipt of an invoice" means (i) the date on which a proper invoice is actually received in the designated payment office, or (ii) the date on which the Authority receives the purchased goods, property, or services covered by the proper invoice, whichever is later. (h) "Set-off" means the reduction by the Authority of a payment due to a contractor by an amount equal to the amount of an unpaid legally enforceable debt owed by the contractor to the Authority. (i) "Statement" means the rules and regulations adopted herein by the Authority 2. Payment Request Procedure. The contractor shall submit a proper invoice to the Authority's designated payment office. Said invoice shall be date stamped with the date the invoice is received. 20

21 3. Interest Eligibility and Computation (a) In order for the Authority not to be liable for the payment of interest, contract payment must be made within thirty calendar days, excluding legal holidays, after the receipt of an invoice for the amount of the contract payment due; except when the contract payment is of the type where the facts and conditions are as defined pursuant to Sections 5 and 6 of these rules and regulations. Any time taken to satisfy or rectify any of the facts or conditions described in Section 5 shall extend the date by which contract payment must be made in order for the Authority not to become liable for interest payments by an equal period of time. (b) Notwithstanding any other provision of law to the contrary, interest shall be computed at the rate equal to the rate set by the State Tax Commission for corporate taxes pursuant to paragraph one of subsection (e) of section one thousand ninety-six of the Tax Law. (c) Payments shall be made only when the interest amount for the transaction exceeds ten dollars ($10). Each invoice or payment on a voucher is a transaction. 4. Sources of Funds. All interest due and payable to contractors under these regulations will be paid from available revenue sources including the Authority general funds. 5. Extensions. The facts and conditions which will reasonably justify extension of the date by which contract payment must be made in order for the Authority not to become liable for interest payments are as follows: (a) In accordance with specific statutory or contractual provisions, if payment must be preceded by an inspection period or by an audit to determine the resources applied or used by the contractor in fulfilling the terms of the contract. (b) If the necessary state government appropriation required to authorize payment has not been enacted, or when statutory, contractual or grant agreement provisions provide for prior federal review before the use of federal funds for payment. (c) If payments must be processed through the State Department of Audit and Control, the State Department of Taxation and Finance, or some other entity not under the Authority's control. (d) If the date by which contract payment must be made is modified in accordance with Section 6 herein. (e) If the contract provides that the contractor will be paid at predetermined intervals. 6. Defects or Improprieties. The Authority shall have fifteen calendar days after receipt of an invoice by the Authority at its designated payment office to notify the contractor of: (a) defects in the delivery goods, property, or services, (b) defects in the invoice, or (c) suspected improprieties of any kind; and the existence of such defects or improprieties shall prevent the commencement of the time period specified in Section 3. When the Authority fails to notify a contractor of such defects or suspected improprieties within fifteen calendar days of receiving the invoice, the number of days allowed for payment of the corrected proper invoice will be reduced by the number of days between the fifteenth day and the day that notification was transmitted to the contractor. If the Authority in such situations, 21

22 fails to provide reasonable grounds for its contention that a defect or impropriety exists, the date by which contract payment must be made in order for the Authority not to become liable for interest payments shall be calculated from the date of receipt of an invoice. 7. Public Service Law. Notwithstanding any provision of the public service law or any tariffs promulgated pursuant to the law to the contrary, the provisions of this section shall provide the sole basis for determining and making interest payments on invoices submitted by public utilities. 8. Public Access. There shall be public access as follows: (a) Copies of these rules and regulations and the annual report shall be available as public record. (b) Each contractor doing business with the Authority shall be given a copy of these rules and regulations. 9. Inapplicability of section. The provisions of this section shall not apply to payments due and owing: (a) under the eminent domain procedure law; (b) as interest allowed on judgments rendered by a court pursuant to any provision of law other than those contained in this section; (c) to the federal government; to any state agency or its instrumentalities; to any duly constituted unit of local government including, but not limited to, counties, cities, towns, villages, school districts, special districts, or any of their related instrumentalities; to any other public authority or public benefit corporation; or to its employees when acting in, or incidental to, their public employment capacity; (d) in situations where the Authority exercises a legally authorized set-off against all or part of the payment due. 10. Court Action. The liability to make interest payments pursuant to these rules and regulations, shall not extend beyond the date of notice of intention to file a claim, the date of notice of claim, or the date commencing a legal action for the payment of such interest, whichever come first. 11. Incorporation. These rules and regulations shall be incorporated into and made a part of all contracts. 15. NEW YORK STATE STANDARD CLAUSES 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. Non-assignment Clause. In accordance with section 138 of the State Finance Law, this contract may not be assigned by the Contractor or its right, title or interest therein assigned, transferred, conveyed, sublet or otherwise disposed of without the previous consent, in writing, of the State and any attempts to assign the contract without the State s written consent are null and void. The Contractor may, however, assign its right to receive payment without the State s prior written consent unless this contract concerns Certificates of Participation pursuant to Article 5-A of the State Finance Law. 22