REQUEST FOR PROPOSALS FOR Contract: NR-STRUCT-DES - Design Services and Design Services During Construction for North River Wastewater Treatment Plant Structural Improvements Project PIN: 82617WP01396 TABLE OF CONTENTS:
SECTION I TIMETABLE SECTION II SUMMARY OF THE REQUEST FOR PROPOSALS SECTION III PROJECT DESCRIPTION SECTION IV FORMAT AND CONTENT OF THE PROPOSAL SECTION V PROPOSAL EVALUATION AND CONTRACT AWARD PROCEDURES SECTION VI GENERAL INFORMATION TO PROPOSERS
ATTACHMENT A: PROPOSAL COVER LETTER FORM ATTACHMENT B: PRICE PROPOSAL FORM ATTACHMENT C: ACKNOWLEDGMENT OF ADDENDA FORM ATTACHMENT D: DOING BUSINESS DATA FORM ATTACHMENT E: DOING BUSINESS FREQUENTLY ASKED QUESTIONS ATTACHMENT F: SCOPE OF SERVICES FOR DESIGN SERVICES ATTACHMENT G: CORE PROGRAM PERFORMANCE STANDARDS ATTACHMENT H: ENTERPRISE PROJECT MANAGEMENT INFORMATION SYSTEM (e-PMIS) ATTACHMENT I: IRAN DIVESTMENT ACT COMPLIANCE RIDER ATTACHMENT J: SUBCONTRACTING COMPLIANCE NOTICE ATTACHMENT K: WHISTLEBLOWER PROTECTION EXPANSION ACT RIDER ATTACHMENT L: HIRING AND EMPLOYMENT RIDER-HIRENYC & REPORTING REQUIREMENTS ATTACHMENT M: PAID SICK LEAVE LAW CONTRACT RIDER ATTACHMENT N: NOTICE TO ALL PROSPECTIVE CONTRACTORS: NEW YORK STATE M/WBE REQUIREMENTS FOR STATE FUNDED (SRF) PROJECTS ATTACHMENT O: 2016 CWSRF INTENDED USE PLAN
APPENDIX A GENERAL PROVISIONS
AUTHORIZED DEP CONTACT PERSON: Proposers are advised that the Authorized DEP Contact Person for all matters concerning this Request for Proposals is:
NAME: Jeanne Schreiber TITLE: Professional Services Contract Liaison ADDRESS: 59-17 Junction Blvd, 17th Floor Flushing, NY 11373 E-Mail Address: [email protected] 1 NR-STRUCT-DES RFP 12/14/2016 SECTION I – TIMETABLE
A. Release Date of the Request for Proposals: March 14, 2017
All questions and requests for additional information concerning this RFP should be directed to Jeanne Schreiber, the Authorized DEP Contact Person, at: E-Mail Address: [email protected] Last day to submit questions regarding this RFP will be no later than close of business on: April 14, 2017
B. Pre-Proposal Conference: Date: March 16, 2017 Time: 2:00 P.M. Location: DEP, 59-17 Junction Blvd, 6fl Lecture Room, Flushing, NY 11373.
Attendance at the Pre-proposal Conference is not mandatory but recommended. Please limit attendance to no more than one person from each firm due to room constraints.
C. Site Visit: Date: March 20, 2017 Time: 2:00 P.M. Location: North River WWTP – Administration Building Conference Room. 725 W 135th Street, New York, NY 10031
D. Proposal Due Date and Time and Location: Date: April 28, 2017 Time: 4:00 P.M. Location: Proposals shall be submitted to:
Debra Butlien, Deputy Agency Chief Contracting Officer NYC Department of Environmental Protection 59-17 Junction Boulevard, 17th Floor Bid Room Flushing, New York 11373
*Bid Room hours: 8:30 AM – 4:30 PM. Note: Proposals may be submitted early during Bid Room hours prior to Due Date and Time.
E-mailed or faxed proposals will not be accepted. Proposals received at this location after the Proposal Due Date and Time are late and shall not be accepted, except as provided under the City of New York’s Procurement Policy Board Rules. The City of New York (“the City”) Department of Environmental Protection (“DEP”) will consider requests made, in advance of the Proposal Due Date, to the Authorized DEP Contact Person to extend the Proposal Due Date and Time prescribed above. However, unless DEP issues a written addendum to the RFP which extends the Proposal Due Date and Time for all proposers, the Proposal Due Date and Time prescribed above shall remain in effect.
E. Anticipated Contract Start Date: September 30, 2017
F. Anticipated Procurement Milestones (for planning purposes only): 2 NR-STRUCT-DES RFP 12/14/2016 Proposal Due Date: April 28, 2017 Contract Negotiations Complete: June 2017 Public Hearing for Proposed Award: July 2017 Contract Start: September 30, 2017
Proposers are advised that in order to complete this procurement in accordance with the anticipated schedule, proposers may be required to be present for oral presentations on one week’s notice.
3 NR-STRUCT-DES RFP 12/14/2016 SECTION II - SUMMARY OF THE REQUEST FOR PROPOSALS
A. Purpose of RFP
The purpose of this Request for Proposals (“RFP”) is to solicit proposals from qualified firms to provide design services and design services during construction for the New York City Department of Environmental Protection (“DEP”). The general scope of work for contract NR- STRUCT-DES involves extensive site investigations and assessment for the repairs of various structural components at the North River Wastewater Treatment Plant.
For the purpose of this RFP, one proposal shall be submitted that includes site-specific technical approaches.
B. Anticipated Contract Term
It is anticipated that the term of the contract awarded from this RFP will be for 4032 consecutive calendar days.
C. Anticipated Payment Structure
It is anticipated that the payment structure of the contract awarded from this RFP will be Lump Sum for Task 2 and Cost – Plus – Overhead – Plus – Fee for Task 3, Task 4, Task 5, and Task 6. Payment structure for Task 1 will be Lump Sum included in the Facility Planning phase and Cost – Plus – Overhead – Plus – Fee included in the Design, Construction Procurement, Construction, and Close Out phases. DEP will consider proposals to structure payments in a different manner and reserves the right to select any payment structure that is in the City’s best interest, including performance-based payment plans.
D. Minimum Qualification Requirements
Proposers must be authorized to practice engineering in the State of New York. A copy of the proposer’s “Certificate of Authorization to provide Professional Engineering Services in New York State” issued by the New York State Education Department, Office of the Professions, must be included with the proposal. Proposals that fail to include the “Certificate of Authorization” may be deemed non-responsive.
Proposers must also submit proof of licensure for those key personnel practicing engineering in the State of New York. Firms that fail to submit proof of licensure for its key personnel to practice engineering in the State of New York may be deemed non-responsive.
Key personnel include the Project Director, Project Manager, Task Manager, Lead Civil Engineer, Lead Structural Engineer, Lead Materials/Corrosion Engineer, Lead Ocean Engineer, and Lead Geotechnical Engineer.
Proposers are advised that meeting the minimum qualifications stated herein does not guarantee that a proposal is responsive nor does it preclude DEP from requesting copies of appropriate licenses required by law for other personnel proposed in response to this RFP.
4 NR-STRUCT-DES RFP 12/14/2016
E. Exclusion from Participation from this RFP
Potential proposers are advised that the firm(s) awarded contracts from this NR-STRUCT- DES RFP are not eligible to be awarded any contract or to participate as a subconsultant in connection with the subsequent Construction Management Services RFP contemplated in the future in connection with this Project.
F. Participation By Minority-Owned And Women-Owned Business Enterprises In City Procurement
This RFP is subject to Federal and State Minority and Women-owned Business Enterprise (“MWBE”) laws and regulations. The selected contractor will be required to make documented good faith efforts to utilize at least twenty percent (20%) of the dollar value of the contract for combined utilization of Minority Business Enterprises (“MBEs”) and Women-owned Business Enterprises (“WBEs”).
All MBE/WBE firms must be certified by the Empire State Development Corporation, Division of Minority and Women’s Business Development. Proposers are directed to www.esd.ny.gov/mwbe/html for a list of certified firms.
Attachment N contains the full requirements for the MWBE program applicable to this solicitation. Attachment N will be included in and be made part of the contract.
Proposers are advised that United States Environmental Protection Agency (“EPA”) forms 6100-3 and 6100-4 should be included with the cost proposal submitted for this RFP. Forms 6100-3 and 6100-4 are included in Attachment N.
Failure to attain the MBE/WBE goals or demonstrate good faith efforts to do so may subject the vendor to sanctions.
Note: As fully explained in the Notice to Prospective Contracts—part of Attachment N— if you are planning to file a request for waiver of the Target Subcontracting Percentage, the waiver request must be submitted to DEP at least seven days prior to the proposal due date and time in order to be considered.
G. Access to DEP Information and Materials:
A library of documents has been established for this Project in the Bid Room located on the 17th floor at 59-17 Junction Boulevard, Flushing, NY 11368. Access to the documents is subject to availability and must be scheduled at least two (2) business days ahead of time. The hours of operation for the Bid Room are 8:30AM – 4:30 PM, Monday through Friday. Please call (718) 595-3265 to make an appointment. All individuals must show proper identification and sign in/out in a log book. In addition, all persons will be required to sign a confidentiality agreement prior to accessing the documents. Copies of documents will be provided (electronically), but no one will be permitted to remove materials or otherwise reproduce materials in the library. Materials will be available until 4:00 PM on the submission due date.
NOTE: Please take notice that these documents will be provided for prospective 5 NR-STRUCT-DES RFP 12/14/2016 proposers’ information only, and will not become part of the contract.
List of Technical Documents Doc # Title Year Issued Firm 1 Report on Caisson Mislocation Studies 1976 Associated Engineers 2 Report on Survey and Proposed Repair of the 1984 Associated Engineers Underdeck of the Concrete Platform of the North River WPCP 3 North River Roof Drain Study (full report) 2000 Associated Engineers 4 Substructure and Structure Portion Assessment 2003 Weidlinger Associates 5 Section 7 Structural Section (Spin 7) 2003 CH2M Hill 6 Concrete Platform, Caissons, and Underdeck 2005 Associated Engineers North River WPCP, May 2005 (draft) 7 Concrete Platform, Caissons, and Underdeck 2006 Associated Engineers North River WPCP, May 2006 (final) 8 North River Roof Leak Study Final Investigation 2011 CDM Report 9 Basis of Design Report Validation – Structural 2013 Black & Veatch 10 Riverbank State Park – Roof Drainage 2015 Stantec Preventive Maintenance Plan Preliminary Design Report – Phase 1 11 North River Expansion Joint Movement, 2016 FKC Q1 Report 12a EDC Underdeck Inspection Presentation 2016 EDC 12b EDC Underdeck Inspection Report FINAL 2016 EDC
List of Drawings: Set # Contract Title Contract # Pages in Set 1 North River WPCP Substructures Contract 5 137 2 North River WPCP Main Building Contract 5A 192 3 North River WPCP Primary Tanks Contract 5B 134 4 North River WPCP Secondary Treatment Contract 5C 376 5 North River WPCP Sludge Facilities Contract 5D 200
List of Legal Documents # Title of Document Date Issued 1 Agreement of Understanding between the City of New York and the State 3/08/1971 of New York 2 Agreement of Understanding between the City of New York and the State 07/08/1981 of New York (#2) 3 Agreement of Understanding between the City of New York and the State 08/08/1986 of New York (#3) 4 Grant of Easement 05/24/1987 4A Exhibit A: Park & Bridge Easement 05/24/1987 4B Exhibit A: Park & Bridge Easement North Bridge 05/24/1987 4C Exhibit A: Park & Bridge Easement South Bridge 05/24/1987 6 NR-STRUCT-DES RFP 12/14/2016 5 Agreement of Understanding between the City of New York and the State 03/22/1988 of New York (#4) 6 Omnibus Agreement between NYC DEP and the NYS OPRHP for Utility 05/15/1992 Hookups and Air Monitoring Systems and Related Items
7 NR-STRUCT-DES RFP 12/14/2016 SECTION III: PROJECT DESCRIPTION
A. Project Description
The NR WWTP is a 28-acre facility located at 135th Street & 12th Avenue in the Borough of Manhattan. The plant serves western Manhattan, and is permitted for 170 MGD Dry Weather Flow (DWF) and 340 MGD Wet Weather Flow. The NR WWTP is unique as the Riverbank State Park is built on top of the 28-acre facility. The structure is supported over the Hudson River on approximately 2,500 caissons imbedded into bedrock. A synthetic membrane on the bottom of the concrete underdeck platform provides a protective barrier between the river and concrete. Over a mile of expansion joints traverse each level of the facility along similar planes allowing movement throughout the structure. Approximately 425 Roof drains collect water from the Riverbank State Park and route stormwater to the WWTP outfall into the Hudson River. Since construction completion in 1982, numerous structural elements within the facility are damaged, well-pass their useful life, and require repair and restoration.
The general scope of work for contract NR-STRUCT-DES involves extensive site investigations and assessment for the repairs of various structural components at the North River Wastewater Treatment Plant. This scope of work encompasses four (4) primary areas of concern: 1) the caissons, ice breakers and underdeck platform, 2) the interior structural issues within the different levels at the plant, 3) plant-wide drainage system, and 4) the roof deck and roof deck drainage system. An overall investigative assessment of the facility to determine the extent and level of the structural damage and repairs needed is required to initiate the overall design. DEP anticipates that the design efforts under NR-STRUCT-DES will result in four (4) to eight (8) separate construction contracts to cover the different areas outlined above and further described below in the “Detailed Scope of Services”. A “Wrap-Up” Construction Contract may also be necessary if it is determined to be in the best interest of the City during the execution of the construction contracts that will result from this solicitation.
The concrete underdeck platform requires assessment and repairs to the existing underdeck membrane system, damaged epoxy patches, exposed reinforcement and spalled concrete, and replacement of the damaged perimeter fencing along the water’s surface. The caissons supporting the facility’s structure require a detailed investigation and assessment by specialty underwater dive teams subcontracted to determine remaining useful life and the cause of lateral movement/shifting of the structure. These caissons’ steel jackets require an overall corrosion assessment and repairs and/or protective measures to prevent further degradation and extend the useful life.
Ice breakers located north of the facility require assessment and repairs to the corroded structural steel members.
North River’s Sludge Barge Loading Dock requires assessment, above and below the waterline, to determine the extent of the existing damages and to document the necessary repairs to be completed under this design contract.
The interior structures of the building require concrete assessment and repair throughout the various levels of the facility. This includes repair and replacement of spalled concrete, exposed rebar, and concrete patchwork in specific areas outlined below. The facility’s expansion joints 8 NR-STRUCT-DES RFP 12/14/2016 require assessment and repair and/or replacement on each of the respective facility levels. The roof structural members providing support to the pre-cast roof slab also require further corrosion investigation and assessment to finalize the corrective design for the necessary repairs.
The existing plant wide drainage piping has surpassed its useful life and requires a condition assessment and replacement. The existing drainage system requires cleaning where the piping protrudes through the precast structural roof panels.
The roof structural repairs include repair and/or replacement of the roof expansion joints and roof drainage system located above the protective roof slab (this is located above the precast roof slab members on Level +58). Clogged drains and lack of maintenance have caused pooling on top of the protective roof slab deteriorating the existing roof expansion joints and damaging equipment and structural members below. The inspection and investigations of the existing North River WWTP roof conditions will require removal of soil and various subgrades to gain access to the roof drains and expansion joints. Inspections, investigations, and repair will be conducted from the Riverbank State Park and coordinated with State Park personnel accordingly. All removed soil and subgrade will need to be restored following the investigations and repairs to its existing condition.
B. Scope of Services The scope of work for the NR-STRUCT-DES at the North River WWTP is delineated by the four (4) potential construction contracts and associated general work items.
Overall scope of services includes: Assess and report on the overall structural conditions of the primary areas of concern mentioned above. Provide specialty contractors to remove or relocate interferences to provide means of access to facilitate investigations and design work. Areas shall be restored to original condition following assessment. Provide sampling and testing laboratory services to analyze samples taken throughout the facility required for investigation and existing condition assessment. Provide a specialty diving contractor to aid in and perform investigations and assessments of the caissons, concrete underdeck, ice breakers, sludge barge loading dock, and perimeter fencing.
The scope of services shall be broken down in support of the four (4) potential construction contracts as follows:
1. North River WWTP Underdeck Structural Improvements, Repairs, and Rehabilitation (Level +5 and below) a. Assess and develop design documents for the repair of spalled concrete and exposed rebar on the river-side of the concrete underdeck platform (Level +5). b. Assess and develop design documents for the repair (or replacement) of the ripped/torn membrane barrier that protects the concrete underdeck platform (Level +5). c. Assess and develop design documents for the repair of the failed epoxy patches on the concrete underdeck platform (Level +5). 9 NR-STRUCT-DES RFP 12/14/2016 d. Assess and develop design documents for the structural components of the underdeck based on investigations. e. Assess and develop design documents for the repair of the sludge barge loading dock. f. Assess and develop design documents for the repair or replacement of the perimeter fencing around the water level of the North River WWTP (Level +5). g. Assess and develop design documents for the repair of the twelve (12) Icebreakers located north of the facility. h. Prepare design documents for the demolition of the remaining oil skimmers below the concrete underdeck platform (Level +5). i. In support of the above, specialty Diving Subcontractor work shall include the following: i. Conduct underwater investigations for assessment of the structural integrity of the drywell foundation. ii. Conduct underwater investigations for assessment of the concrete underdeck, facility foundation, sludge barge loading dock, perimeter fencing, and ice breakers. iii. Conduct underwater investigations for assessment of caissons and caissons’ steel jacketing. (This includes above and below the mud line, the full length of the caisson submerged in water, and in the tidal zone). 1. Assume 20% of all 2500 caissons are to be assessed in all locations underneath the facility. 2. Perform non-destructive testing on the steel jacketing and overall corrosion assessment on the caissons steel jacketing. iv. Document existing conditions with high resolution photographs and imagery. j. Assess and develop design documents for the repair or replacement of the expansion joints on the concrete platform (Level +5). k. Conduct non-destructive testing on concrete and steel members to confirm overall structural integrity. l. Assess and develop design documents for the repair of the in-slab drains on the concrete underdeck platform (Level +5).
2. North River WWTP Interior Structural Improvements, Repairs, and Rehabilitation a. Assess and develop design documents for the repair or replacement of the existing expansion joints located throughout the various levels of the North River WWTP. b. Assess the existing roof leaks throughout the facility and develop design documents for the repair of the damage to the roof structural members caused by the leaks. i. A corrosion assessment shall be conducted on the roof structural members to confirm structural integrity. c. Assess and develop design documents for the repair of concrete cracks, spalled concrete and exposed, and missing concrete encasement for columns, walls and floors throughout the facility. List includes the following locations: i. Main Building ii. Aeration Tanks iii. Primary Settling Tanks 10 NR-STRUCT-DES RFP 12/14/2016 iv. Secondary Settling Tanks v. Sludge Facilities, including investigations and development of design documents for the repair, rehabilitation or replacement of the sludge storage tanks. vi. Screening Room vii. Mechanical Room El. +5 viii. Pipe Gallery North ix. Roadway B x. Gas compressor Room xi. Mechanical Equipment Room xii. Primary Pumps Room xiii. South Hypo Room xiv. South Roadway xv. Opposite the Gas holder tank d. Assess the condition of the existing Chlorine Contact Tanks and develop design documents for the repairs.
3. North River WWTP Plant-Wide Drainage System Replacement a. Develop design documents for cleaning and clearing the drainage piping protruding through the pre-cast roof slab members. b. Develop design documents for replacement of the plant-wide drainage piping throughout the facility.
4. North River WWTP Roof Deck and Roof Deck Drainage Improvements and Repairs Efforts regarding the investigation and assessment of the above roof deck drainage system and roof expansion joints shall be coordinated with New York State Office of Parks, Recreation, and Historical Preservation (“NYS Parks”) and Riverbank State Park officials to secure access. Presently, the NYS Parks has an ongoing investigation/condition assessment and drain cleaning program to improve the Riverbank State Park’s above deck drainage system. It is the intent for the Design Engineer to expand upon the NYS Parks’ current program and design repairs to improve the expansion joints and drainage above the roof deck slab. a. Assess and develop design documents for the repair of the roof drains located above Level +58 of the North River WWTP. b. Assess and develop design documents for the repair the existing roof expansion joints on the protective slab above Level +58 of the North River WWTP. Subcontract a general subcontractor to remove soil, asphalt, debris, and all other subgrades to allow for the investigation and assessment of the roof expansion joints and roof drains. All removed material must be placed back and the area restored to its original condition following any investigations of the existing condition. Anticipated Deliverable Schedules Facility Planning – 1,063 consecutive calendar days Design – 997 consecutive calendar days Construction Procurement – 270 consecutive calendar days Design Services During Construction – 1337 consecutive calendar days 11 NR-STRUCT-DES RFP 12/14/2016 Close Out – 365 consecutive calendar days
*By separating the overall scope for the structural repairs and rehabilitation into multiple construction contracts, it is anticipated that the overall durations for procurement, design services during construction and close-out will be extended further and overlap between the various contracts.
The proposal must include a detailed scope of services. Attachment F (Scope of Services) includes a general scope of services for DEP engineering design services contracts. The proposal should include those services, whether listed in Attachment F or not, which the proposer deems necessary to perform the project-specific scope of services under this RFP. The proposal should make clear the full scope being proposed and all assumptions made, including, without limitation: staffing arrangements, office location(s), and quantity of meetings. If the proposer believes that any of the services included in the general scope in Attachment F are not required for this Project or if it deems additional services to be required, it should set forth the reasoning as part of the proposal.
Note: All contract and project administration activities shall be budgeted in the Project phase in which these services are anticipated to be provided. These phases include Facility Planning, Design, Construction Procurement, Construction, and Closeout.
C. Compliance With Local Law 34 Of 2007
Pursuant to Local Law 34 of 2007, amending the City's Campaign Finance Law, the City established a computerized database containing the name of any "person" that has "business dealings with the city" as such terms are defined in the Local Law. For the purposes of the database, proposers are required to complete the attached Doing Business Data Form and return it with this proposal, and should do so in a separate envelope. (If the proposer is a joint venture, the entities that comprise the joint venture must each complete a Data Form.). If the City determines that a proposer has failed to submit a Data Form or has submitted a Data Form that is not complete, the proposer will be notified by DEP and will be given four (4) calendar days from receipt of notification to cure the specified deficiencies and return a complete Data Form to DEP. Failure to do so will result in a determination that the proposal is non-responsive. Receipt of notification is defined as the day notice is e-mailed or faxed (if the proposer has provided an e-mail address or fax number), no later than five (5) days from the date of mailing, or upon delivery, if delivered by other than U.S. mail.
D. Whistleblower Protection Expansion Act Rider
Local Laws Nos. 30 and 33 of 2012, codified at sections 6-132 and 12-113 of the New York City Administrative Code (the Whistleblower Protection Expansion Act), protect employees of certain City contractors from adverse personnel action based on whistleblower activity relating to a City contract and require contractors to post a notice informing employees of their rights. Please read Attachment M, the Whistleblower Protection Expansion Act Rider, carefully.
E. Compliance With The Iran Divestment Act
Pursuant to State Finance Law Section 165-a and General Municipal Law Section 103-g, the City
12 NR-STRUCT-DES RFP 12/14/2016 is prohibited from entering into contracts with persons engaged in investment activities in the energy sector of Iran. Each proposer is required to complete the attached Certification of Compliance with the Iran Divestment Act, certifying that it is not on a list of entities engaged in investment activities in Iran created by the Commissioner of the NYS Office of General Services. If a proposer appears on that list, DEP will be able to award a contract to such proposer only in situations where the proposer is takings steps to cease its investments in Iran or where the proposer is a necessary sole source. Please refer to Attachment K for information on the Iran Divestment Act and instructions on how to complete the form required for this solicitation and to http://www.ogs.ny.gov/About/regs/ida.asp for additional information concerning the list of entities.
F. Subcontractor Compliance Notice
The selected contractor will be required to utilize the City’s web-based system to identify all subcontractors in order to obtain subcontractor approval pursuant to section 4-13 of the City’s Procurement Policy Board Rules (“PPB Rules”), and will also be required to enter all subcontractor payment information and other related information in such system during the contract term. Please read Attachment L, the Subcontracting Compliance Notice, as it relates to competitive solicitations.
G. Compliance with HireNYC and Reporting Requirements
The Hiring and Employment Rider shall apply to contracts valued at $1-million or more for all goods, services and construction except human services contracts that are subject to the Public Assistance Hiring Commitment Rider. The rider describes the Hire NYC process and obligations, including reporting requirements throughout the life of the contract. The Hire NYC process requires contractors to enroll with the Hire NYC system within thirty days after the registration of the contract subject to this solicitation, to provide information regarding all entry to mid-level job opportunities arising from this contract and located in New York City, and to agree to interview qualified candidates from HireNYC for those opportunities. The rider also includes reporting requirements unrelated to HireNYC. See Attachment L for further description of the requirement details.
H. Paid Sick Leave Law Contract Rider
The Earned Sick Time Act, also known as the Paid Sick Leave Law (“PSLL”), requires covered employees who annually perform more than 80 hours of work in New York City to be provided with paid sick time. Contractors of the City of New York [or of other governmental entities] may be required to provide sick time pursuant to the PSLL. Attachment M, the Paid Sick Leave Law Rider, will be included in any contract awarded from this RFP and will incorporate the PSLL as a material term of such a contract. Please read Attachment M carefully.
13 NR-STRUCT-DES RFP 12/14/2016 SECTION IV: PROPOSAL FORMAT AND CONTENT
A. General Instructions:
Proposers should provide all information required in the format described below. The proposal shall be provided in two parts: a technical proposal and a price proposal. The technical proposal and the price proposal must be enclosed in a sealed outer envelope. The technical proposal must be contained in a single bound document. The price proposal must be contained in a separate un bound document and sealed in an inner envelope. The technical proposal and the price proposal must be typed and double-spaced on both sides of 8½-inch by 11-inch white paper. The City requests that all proposals be submitted on paper with no less than thirty percent (30%) post- consumer material content (i.e., the minimum recovered fiber content level for reprographic papers recommended by the United States Environmental Protection Agency). DEP requests that proposals be bound but not in a spiral covered binder. Pages must be paginated and tabulated for each section. The page limit for the Technical Proposal (Section IV B.1 and B.2) shall be thirty- five (35) pages. This limit of pages and paper size does not apply to Project-Specific Scope of Services, schedules, resumes, organization charts, or schematics. The proposal will be evaluated on the basis of its content, not length.
Proposers are advised that any portion of a proposal identified as confidential, or proprietary information or a trade secret will be reviewed by DEP; and any decision not to honor a request for confidentiality will be communicated in writing to the proposer. For those proposals that are unsuccessful, all such confidential materials will be returned to the proposer, with the exception of one copy that DEP will retain and hold in a secure manner to the extent reasonably possible. Regardless of any designation of confidentiality made by the proposer, however, DEP may disclose any information to elected officials of the City when required pursuant to Section 1-04 of the Procurement Policy Board Rules, or to any member of the public when required under the Freedom of Information Law (NY Public Officers Law §87(2)), or when otherwise required pursuant to applicable law or judicial process, as determined by the City’s Corporation Counsel. In particular, proposers may NOT simply append a blanket notice to their proposal that purports to limit the City’s use, reproduction or distribution of the entire document for valid governmental purposes and any such notice will be of no effect. If the proposer refuses to modify or remove such a notice when DEP so requests, or otherwise refuses to acknowledge the City’s right to use, reproduce, and distribute the proposal for valid governmental purposes, the proposal may be rejected as non-responsive. Also see Paragraph I of Section VI (General Information to Proposers) for information regarding identification of confidential and/or proprietary information or trade secrets.
B. Proposal Format
1. Proposal Cover Letter
The Proposal Cover Letter Form (Attachment A) transmits the proposer’s proposal package to DEP. It should accurately identify the legal entity submitting the proposal and be completed, signed and dated by a duly authorized representative of the proposer.
2. Technical Proposal
14 NR-STRUCT-DES RFP 12/14/2016 The Technical Proposal must include a detailed scope of services. As set forth above, Attachment F (Scope for Design Services) includes a general scope of services for this type of contract. The Technical Proposal should include all services, whether included in Attachment F or not, that the proposer deems necessary to perform the Project-specific scope of services for this contract. The Technical Proposal shall include the following items:
2.1 Experience: Describe the proposer’s relevant experience on projects of similar size and scope in providing the services as described in Attachment F of this RFP, and the relevant experience of the proposed key personnel described in Section II(D). In addition to the proposer’s successful relevant experience, also important is a discussion of its major lessons learned from challenges and problems it faced in connection with projects of similar size and scope. Describe these relevant lessons learned and how the proposer managed, addressed, corrected, and learned from the experience globally in its practice.
Proposer shall detail:
(a) Prime Firm’s Relevant Experience: Demonstrate the firm’s overall experience in providing facility planning, design and design services during construction for projects similar in size, scope and complexity. Include a total of five (5) projects of similar contract value or complexity similar to that anticipated to be performed pursuant to this RFP. At least three (3) of the five (5) projects included must highlight and describe specific challenges. For each project, include the following information (at a minimum):
i. project name, owner, owner contact information (name, title, phone #) (references will be contacted and will be used in the evaluation of your technical proposal); ii. description of the firm’s role in the project (e.g., prime, member of joint venture, or subconsultant) and its specific responsibilities on the project (e.g. lead designer, discipline lead, scheduler, expert services, etc.); iii. the project’s total value and design contract value; iv. time period on job (year started and completed – or if on-going); v. brief description of the design activities; vi. description of relevance to this project; vii. description of how quality, schedule, budget, and safety were successfully implemented on the project; and viii. for projects that included challenges, a description of how the firm overcame the issues and of any lessons learned and any policy changes resulting from the failure.
(b) Proposed Subconsultants: Provide up to two (2) relevant references for each proposed subconsultant, in the area of their anticipated Project function (i.e., if the subconsultant would be mainly performing air permitting services, the experience should be based on similar services). The information provided should follow the format used to describe the prime consultant’s experience.
(c) Commitment to Quality: Describe the proposer’s commitment to quality; include staff experience and training, and a list of quality-related training and certifications required (by the firm) for each major position in the proposer’s organization chart. Also include the proposer’s quality training protocol (i.e., frequency of training, method of tracking status used, etc.), and relevance to the project.
15 NR-STRUCT-DES RFP 12/14/2016
(d) Commitment to Environmental Health and Safety (“EHS”): Describe the proposer’s commitment to EHS and how the commitment relates to its mission and core values; include a description of the EHS training program for staff including a description of how staff is trained, frequency of training, method of tracking status used, and relevance to the project. Describe the firm’s EHS Management Plan and its plan to manage EHS for this project.
2.2 Organizational Capability: Demonstrate the proposer’s organizational capability to provide the scope of design services as specifically included in your technical proposal including providing all of the following:
(a) Expertise and Qualifications: Submit up to two (2) resumes (one primary and one backup) for each of the following key personnel: Project Director, Project Manager, Task Manager, Lead Civil Engineer, Lead Structural Engineer, Lead Materials/Corrosion Engineer, Lead Ocean Engineer, and Lead Geotechnical Engineer. Resumes should highlight personnel qualifications with appropriate training and project experience. Ideally, key personnel proposed will have primary roles in the firm’s relevant experience as described pursuant to subsection 2.1, above.
(b) Staffing: Provide information illustrating the appropriateness of the proposer’s staffing and resources to accomplish the scope of services in accordance with the project schedule detailed in Section III(B), including resources available to address unanticipated needs or conditions. Describe the firm’s ability to adequately staff the project with qualified personnel throughout the project duration. A staffing schedule must be included to show anticipated changes to staff expertise or staffing levels during the different phases of work (i.e., Facility Planning, Design, Construction Procurement, Construction, and Closeout). The proposer should demonstrate the efficiency of the proposed staffing levels and the appropriate allocation of the firm’s resources.
The proposal must clearly delineate the person(s) who would be responsible for each aspect of anticipated services, such as design discipline, quality assurance and quality control, and environmental health and safety. By submitting a proposal, the proposer specifically agrees, if awarded the contract, to assign the key personnel identified in its proposal to the project for its entire duration. The failure by to provide any individual identified as key personnel in a successful proposal for the duration of the project will be considered a material breach of the contract and grounds for termination for cause by DEP. Replacement of an unavailable individual will only be permitted in the following circumstances: (1) if the designated individual is no longer employed by the consultant; or (2) if the commencement date for the contract (i.e., the date on which the consultant is directed to commence work on the project) is more than six (6) months after the date on which the proposal for the project was submitted. The replacement of any individual identified as key personnel without written authorization from DEP is prohibited.
Any subconsultants submitted by the proposer in its proposal shall be utilized in the contract, unless DEP authorizes a substitute.
If key personnel already committed to other DEP projects are included, the proposal should specifically explain how these personnel will be available for this project without adversely
16 NR-STRUCT-DES RFP 12/14/2016 affecting the quality and schedule of the other DEP projects to which the personnel are dedicated.
The proposer must describe its available resources (i.e., administrative and technical staff, facilities, financing and other resources) to support its successful completion of all necessary tasks if the contract is awarded to it.
A copy of the proposer’s latest audit report and certified financial statement must be attached to the proposal, or a statement included as to why no report/statement is available.
(c) Organization Chart: A complete organization chart must be provided; include the key personnel and other proposed staff. Delineate the areas of responsibility and expertise of each proposed subconsultant and, if applicable, the areas of responsibility of each joint venture member.
2.3 Technical Approach: Describe in detail how the proposer will provide the services described in Attachment F of this RFP and demonstrate that the proposer’s approach will fulfill DEP’s goals, addressing all of the following items.
(a) Project Understanding: Demonstrate understanding of project goals through a narrative of the proposer’s approach to managing the project design. Describe how the firm’s approach will be efficient with respect to schedule, budget, and quality.
(b) Critical Issues and Risks: Demonstrate project understanding through identification of critical issues and risks and development of mitigation measures to eliminate or mitigate.
(c) Innovative Ideas: Demonstrate innovative ideas that will contribute to the success of the project.
(d) Project-Specific Scope of Services: Demonstrate project understanding and include a Project-specific scope of services that would allow the proposer to meet the core program objectives and performance goals included in Attachment F. The purpose of developing the project-specific scope of services is to use it for finalizing the final contract scope with little modification in the event the proposer is awarded the contract.
3. Proposer Affirmation
The Proposer Affirmation, incorporated in Appendix A, serves as the proposer’s certification regarding its status with the City regarding arrears, responsibility and qualification.
4. Acknowledgment of Addenda
The Acknowledgment of Addenda form (Attachment C) serves as the proposer’s acknowledgment of the receipt of addenda, if any are issued, to this RFP. The proposer should complete its acknowledgment form as instructed on the form.
17 NR-STRUCT-DES RFP 12/14/2016 5. Price Proposal
(a) The Price Proposal is a presentation of a proposer’s total price for performing the entirety of the services described in Attachment F. Each proposer must submit its Price Proposal in a separate sealed envelope with the Technical Proposal submission.
(b) The Consultant must submit a lump sum proposal for Task 2 (i.e.: lump sum proposal for facility planning). The lump sum for each category of work must detail the hours of work and the titles for each subcategory of work; the consultant may further detail each subcategory to show the allocation of the resources.
(c) In addition to providing a lump sum proposal for Task 2 each proposer must use Attachment B as a template for its Price Proposal for Tasks 3 through 6 (Design, Design during Construction and Close Out). In its Price Proposal, each proposer must provide a proposed total billable hourly rate for each individual that it plans to use in rendering the services (i.e.: Task 3 through 6).
(c) Each proposed total billable hourly rate is the product of the “Direct Salary Rate” and the “Overhead Multiplier.” The Overhead Multiplier is a factor that, when applied to direct labor billings, calculates the total direct labor cost, indirect costs and profit payable to the consultant.
(d) Overhead terminology in accordance with the City Comptroller’s Directive 2 is as follows: i) The sum of the contractor’s allowable overhead costs and general and administrative expenses is divided by the direct labor for the same period. The quotient is the overhead rate. ii) The overhead rate is added to the integer one (1), representing the direct labor costs billed for the contract, to yield the overhead factor. iii) To allow for profit, the “Overhead Factor” is multiplied by one (1) plus the agreed profit percentage (i.e., where the profit is ten percent (10%), the Overhead Factor is multiplied by 1.1.). The product is the Overhead Multiplier.
(e) The total price associated with each individual over the course of each task will be calculated as the product of the estimated hours for that individual and that proposer’s proposed total billable hourly rate for that individual. Each proposer must calculate the total price associated with each task by summing the total price associated with each individual listed under that task. Each proposer must calculate the total price for performing the entirety of the services as the sum of its total price associated with each task and the value of all other direct costs (“ODCs”).
(f) Proposers must submit an hourly salary rate for each individual proposed for the Project, a proposed initial interim overhead rate for its firm and each proposed subconsultant firm, and a fee for profit for every title listed in Attachment B. The initial interim overhead rate proposed should be the most accurate overhead rate at the time of the proposal for the firm and any proposed subconsultants. (For example, it can be the latest DEP Office of Engineering Audit (“OEA”) audited overhead rate or the most current CPA-certified Overhead Rate that is compliant with the Federal Acquisition Regulations (“FAR”) for Government Contracts). If a firm does not have a DEP-audited Overhead Rate or a FAR compliant CPA-certified Overhead Rate, DEP will accept one hundred fourteen percent 18 NR-STRUCT-DES RFP 12/14/2016 (114%) as the initial interim Overhead Rate for the home office and one hundred percent (100%) as the initial interim Overhead Rate for the field office. Notwithstanding the foregoing, DEP may conduct an audit of such rates, and adjust the rate based upon its audit, at any time during the performance period of any contract awarded based on this RFP.
(g) For budget and cost estimating purposes, proposers are encouraged to specify and incorporate their wage escalation factor in the Price Proposal. The total proposed contract price will be used in the contract awarded to the successful proposer without any adjustments for the term of the contract. Labor rates should be based on the anticipated contract start date of September 30, 2017.
(h) The profit percentage proposed for the proposer and for any proposed sub-consultants may vary, and is subject to negotiation. The profit percentage will remain fixed in the contract for the contract’s term. The proposed and negotiated profit percentage may differ for each project phase.
(i) The overhead rate used in any future contract amendment issued by DEP will be no greater than the actual audited rate. The profit percentage used in any future contract amendments will be equal to or less than the profit percentage accepted by DEP at the time the contract is negotiated and awarded.
(j) The interim overhead rate under the contract shall be updated periodically upon completion of an audit by OEA, with a maximum increase fixed at ten (10) percentage points above the proposed initial interim overhead rate. Once the actual OEA-audited overhead rate is determined, it will be used to retroactively adjust prior payments, and will become the new interim rate for future payments, until the next OEA-overhead audited rate is determined. In no event shall any new interim rate be greater than ten (10) percent above the proposed initial interim overhead rate.
(k) Payment for technical salary costs of the successful proposer and its subconsultants will be limited to the direct payroll costs for technical and professional employees for the time spent performing the services under this contract, and will not include amounts paid for vacation, holidays, social security taxes, unemployment insurance, workers’ compensation insurance or other fringe benefits.
(l) Future salary increases are subject to approval of DEP. Each firm may make adjustments to its employees’ salary rates only once each year from the time the proposal is submitted to the end of the term of the contract; however, during the first year of the contract, DEP will allow firms to provide an additional salary increase to account for regularly scheduled salary increases that occurred between negotiation of the contract and registration. The composite adjustment for all employees billing under the contract shall not be greater than the: most recent 2nd Quarter 12 month percent change in the U.S. Bureau of Labor Statistics Employment Cost Index (“ECI”) for Private Sector Professional, Scientific, and Technical Services Wages and Salaries (Series Id.: CIU2025400000000A). The weighted average annual salary increase billed to DEP for all of the consultant’s employees shall not exceed the ECI in any year. In no case shall the annual salary increase for any single employee billed to DEP be more than five percent (5%) or $3.00 per hour, whichever is greater. The consultant and any subconsultants may increase their employees’ salary in
19 NR-STRUCT-DES RFP 12/14/2016 excess of the amounts permitted by the above provisions, however, DEP will not reimburse the consultant for any salary increase in excess of such permitted amounts.
(m) Billable ODCs are “out-of-pocket” expenses essential for the performance of the services and authorized by DEP that are not otherwise included in the successful proposer’s overhead costs. All equipment and materials authorized and purchased under the contract shall become the property of the City and shall be surrendered to DEP’s Bureau of Engineering Design and Construction (“BEDC”) at completion of the project. DEP shall reimburse for ODCs at the actual cost, with no provision for overhead or profit. Reimbursable ODCs include the following items:
i) authorized direct materials and equipment purchases and/or leases with the exception of computers or tablet devices; ii) bulk printing of reports or special documents as part of the services under this contract iii) travel and subsistence for the consultant’s personnel for trips authorized by DEP including visits to project sites, manufacturers' shops, existing plants, meetings, hearings, etc., essential to the performance of the services, to be paid within the normal allowances of the City for its own employees in accordance with the City Comptroller’s Directive 6 -- Travel, Meals, Lodging, and Miscellaneous DEP Expenses, dated October 31, 2001, and the latest amendments thereof. The consultant shall submit to DEP for prior approval, on behalf of itself and any subconsultants, anticipated hotel location and the billing rate for a travel request, in order to receive complete reimbursement; iv) the use of motor vehicles owned by the employees of the consultant and subconsultants on the project sites or between the project sites and various DEP offices, when directed by DEP Commissioner, or his/her duly authorized representative, on a mileage basis to be paid within the normal allowances of the City for its own employees, in accordance with the City Comptroller’s Directive 6 -- Travel, Meals, Lodging, and Miscellaneous DEP Expenses, dated October 31, 2001, and the latest amendments thereof; v) miscellaneous out-of-pocket costs authorized by DEP Commissioner, through his/her duly authorized representative; and vi) extraordinary mailing and shipping charges directly related to the contract.
(n) “Overtime” is defined as the time beyond forty (40) hours in a week worked by an employee of the successful proposer or a subconsultant performing contract services. DEP will provide additional compensation to the successful proposer for Overtime hours only if DEP authorizes such Overtime in advance of its performance and subject to the following:
i) The maximum “Overtime Rate” shall not exceed one and one-half (1.5) times the regular hourly rate of the employee. ii) The Overhead Multiplier is applied only to the regular hourly (straight time) portion of the consultant’s direct salary costs for Overtime. iii) A factor of 0.15 plus one (1) is multiplied by the premium pay portion of Overtime to compensate the consultant for government mandated insurance expenses paid by the employer for FICA tax, federal and state unemployment insurance and Workers Compensation insurance.
20 NR-STRUCT-DES RFP 12/14/2016 (o) Compensation for any portion of the contract services performed by a principal of the successful proposer or of a subconsultant firm will be calculated as the product of:
i) the direct salary rate incurred by the successful proposer (or a subconsultant) for that portion of the services; and
ii) the sum of one hundred percent (100%) and the applicable overhead rate.
However, such compensation will be capped at a maximum billable rate of three hundred fifty dollars ($350) per hour. No fee shall be paid on such services. The total compensation for the principal’s time shall not exceed thirty-five percent (35%) of the maximum contract amount.
A “principal” means an individual who is duly authorized to legally bind the firm. Depending on the firm, the principal may be an owner, corporate officer, associate, partner, etc. With respect to a corporation, an owner who owns ten percent (10%) or more of the voting stock is deemed to be a principal, even if he/she does not have the authorization to legally bind the firm.
(p) All Project Management Services (as described in Task 1 on Attachment F) shall be budgeted in the project phase in which those services are anticipated to be provided. Tasks two (2) through six (6) align directly with the project phase structure. These phases include:
Phase Costs
Facility Planning Task 1 and Task 2 Design Task 1 and Task 3 Construction Procurement Task 1 and Task 4 Construction Task 1 and Task 5 Closeout Task 1 and Task 6
(q) The successful proposer shall be bound by the maximum contract amount and the maximum phase amounts for labor and ODCs for each project phase in the final negotiated contract. DEP is not required to pay to the consultant any amount in excess of the maximum contract amount as compensation for its performance of the entirety of the services. Additionally, DEP is not required to pay the consultant any amount in excess of the maximum phase amount listed for labor or ODCs for each project phase as compensation for its performance of the portion of the services corresponding to that phase. Neither the maximum contract amount nor any maximum phase amount will be adjusted absent a contract amendment issued by DEP and registered in accordance with Section 328 of the City Charter and the related PPB Rules.
C. Proposal Submission Requirements
1. Submit one (1) signed original of the proposal, four (4) compact disk (CD) copies of the proposal, and five (5) duplicate hard copies of the proposal, containing the items described above in Sections IV(B)(1)-(4).
21 NR-STRUCT-DES RFP 12/14/2016
2. Submit one (1) separate sealed inner envelope containing an unbound signed original of the Price Proposal labeled “Price Proposal for [FIRM NAME] for NR-STRUCT-DES - Design Services and Design Services During Construction for the North River Wastewater Treatment Plant Structural Improvements Project:” (Attachment B) EPA forms 6100-3 and 6100-4 should be included in Attachment B.
3. Submit one (1) separate sealed inner envelope labeled “Doing Business Data Form for [FIRM NAME] for NR-STRUCT-DES - Design Services and Design Services During Construction for the North River Wastewater Treatment Plant Structural Improvements Project” containing an unbound original, completed Doing Business Data Form (Attachment D).
4. Submit one (1) separate sealed inner envelope labeled “Bidder’s Certification of Compliance with Iran Divestment Act” for [FIRM NAME] for NR-STRUCT-DES - Design Services and Design Services During Construction for the North River Wastewater Treatment Plant Structural Improvements Project” containing an unbound original, completed Bidder’s Certification of Compliance with Iran Divestment Act Form (Attachment I).
5. The sealed outer envelope of the package enclosing the materials submitted in response to this RFP should have two labels indicating, respectively:
a. The proposer’s name and address, the title and PIN of this RFP, and the name and telephone number of the proposer’s contact person. b. The name, title and address of the Deputy Agency Chief Contracting Officer as per Section I. (C).
22 NR-STRUCT-DES RFP 12/14/2016 SECTION V: PROPOSAL EVALUATION AND CONTRACT AWARD PROCEDURES
A. Evaluation Procedures:
All proposals received by DEP will be reviewed to determine whether they are responsive to the requisites of this RFP. Proposals that are determined to be non-responsive will be rejected. DEP’s Technical Advisory Committee (“TAC”) for this RFP will evaluate and rate all remaining proposals based on the evaluation criteria prescribed below.
DEP reserves the right to require oral presentations and conduct interviews with those proposers whose proposals are deemed to be technically viable. In the event that a proposer is requested to give an oral presentation, it may be advised in advance of the aspects of its proposal which need to be supported, demonstrated or clarified. The presentation attendance will be limited to no more than seven (7) persons from each proposer and will include time for questions regarding the proposal. The date, time and location of the oral presentation will be announced at a later date.
Although discussions may be conducted with proposers submitting acceptable proposals, DEP reserves the right to award contracts on the basis of initial proposals received, without discussions; therefore, the proposer’s initial proposal should contain its best technical and price terms.
DEP will rank proposers by technical merit, and then consider price by negotiating a fair and reasonable price with the highest technically-ranked proposer. In the event DEP has chosen to negotiate a fair and reasonable price with the top-ranked proposer and such price is not successfully negotiated, DEP may conclude such negotiations and enter into negotiations with the next-ranked firm as necessary. Such price negotiation shall commence upon written notification.
B. Proposal Evaluation Criteria:
Technical proposals will be evaluated based on the following: Demonstrated Relevant Experience of Key Personnel (weight 35%) Organizational Capability (weight 25%) Quality of Technical Approach (weight 40%)
C. Basis for Contract Award:
A contract will be awarded to the responsible proposer that is determined to be the most advantageous to the City, taking into consideration the price and such other factors or criteria which are set forth in this RFP. Contract award shall be subject to the timely completion of contract negotiations between DEP and the selected proposer.
23 NR-STRUCT-DES RFP 12/14/2016 SECTION VI - GENERAL INFORMATION TO PROPOSERS
A. Complaints. The New York City Comptroller is charged with the audit of contracts in New York City. Any Proposer who believes that there has been unfairness, favoritism or impropriety in the proposal process should inform the Comptroller, Office of Contract Administration, 1 Centre Street, Room 835, New York, NY 10007; the telephone number is (212) 669-3000. In addition, the New York City Department of Investigation should be informed of such complaints at its Investigations Division, 80 Maiden Lane, New York, NY 10038; the telephone number is (212) 825-5959.
B. Applicable Laws. This Request for Proposals and the resulting contract award(s), if any, unless otherwise stated, are subject to all applicable provisions of New York State Law, the New York City Administrative Code, New York City Charter and New York City Procurement Policy Board (PPB) Rules. A copy of the PPB Rules may be obtained by contacting the PPB at (212) 788-7820.
C. General Contract Provisions. Contracts shall be subject to New York City’s general contract provisions, in substantially the form that they appear in “Appendix A—General Provisions Governing Contracts for Consultants, Professional and Technical Services” or, if the Agency utilizes other than the formal Appendix A, in substantially the form that they appear in the Agency’s general contract provisions. A copy of the applicable document is available through the Authorized Agency Contact Person.
D. Contract Award. Contract award is subject to each of the following applicable conditions and any others that may apply: New York City Fair Share Criteria; New York City MacBride Principles Law; submission by the Proposer of the requisite New York City Department of Business Services/Division of Labor Services Employment Report and certification by that office; submission by the Proposer of the requisite VENDEX Questionnaires/Affidavits of No Change and review of the information contained therein by the New York City Department of Investigation; all other required oversight approvals; applicable provisions of federal, state and local laws and executive orders requiring affirmative action and equal employment opportunity; and Section 6-108.1 of the New York City Administrative Code relating to the Local Based Enterprises program and its implementation rules.
E. Proposer Appeal Rights. Pursuant to New York City’s Procurement Policy Board Rules, Proposers have the right to appeal Agency non-responsiveness determinations and Agency non-responsibility determinations and to protest an Agency’s determination regarding the solicitation or award of a contract.
F. Multi-Year Contracts. Multi-year contracts are subject to modification or cancellation if adequate funds are not appropriated to the Agency to support continuation of performance in any City fiscal year succeeding the first fiscal year and/or if the contractor’s performance is not satisfactory. The Agency will notify the contractor as soon as is practicable that the funds are, or are not, available for the continuation of the multi-year contract for each succeeding City fiscal year. In the event of cancellation, the contractor will be reimbursed for those costs, if any, which are so provided for in the contract.
G. Prompt Payment Policy. Pursuant to the New York City’s Procurement Policy Board Rules, it is the policy of the City to process contract payments efficiently and expeditiously.
H. Prices Irrevocable. Prices proposed by the Proposer shall be irrevocable until contract award, unless the proposal is withdrawn. Proposals may only be withdrawn by submitting a written request to the Agency prior to contract award but after the expiration of 90 days after the opening of proposals. This shall not limit the discretion of the Agency to request Proposers to revise proposed prices through the submission of best and final offers and/or the conduct of negotiations.
I. Confidential, Proprietary Information or Trade Secrets. Proposers should give specific attention to the identification of those portions of their proposals that they deem to be confidential, proprietary information or trade secrets and provide any justification of why such materials, upon request, should not be disclosed by the City. Such information must be easily separable from the non-confidential sections of the proposal. All information not so identified may be disclosed by the City.
J. RFP Postponement/Cancellation. The Agency reserves the right to postpone or cancel this RFP, in whole or in part, and to reject all proposals.
K. Proposer Costs. Proposers will not be reimbursed for any costs incurred to prepare proposals.
L. Vendex Fees. Pursuant to PPB Rule 2-08(f)(2), the contractor will be charged a fee for the administration of the Vendex system, including the Vendor Name Check Process, if a Vendor Name Check review is required to be conducted by the Department of Investigation. The contractor shall also be required to pay the applicable fees for any of its subcontractors for which Vendor Name Check reviews are required. The fee(s) will be deducted from payments made to the contractor under the contract. For contracts with an estimated value of less than or equal to $1,000,000, the fee will be $175. For contracts with an estimated value of greater than $1,000,000, the fee will be $350. The estimated value for each contract resulting from this RFP is estimated to be (less than or equal to $1million) (above $1million).
24 NR-STRUCT-DES RFP 12/14/2016
Displacement Determination Form – Pursuant to City Charter § 312(a) (for PSRs or equivalent pre-procurement documents)
This form must be used to certify whether or not there is displacement in the instant contracting action, as defined in City Charter § 312(a) (as amended by Local Law 63 of 2011). You can either certify that there is no displacement by completing Part 1 of this form, or you can certify that there is displacement by completing Part 2 of this form. If the contract that you are awarding is a task order contract that does not simultaneously result in the award of a first task order, then you must check the box on the bottom of this page; displacement determinations will be made in conjunction with the issuance of task orders pursuant to the subject contract. If the contract that you are awarding does simultaneously result in the award of a first task order, then the displacement determination for that first task order must be done prior to issuance of the solicitation and you must complete either Part 1 or Part 2 of this form. If you have any questions about Local Law 63 or about completing this form, please contact the Mayor’s Office of Contract Services at [email protected] or (212) 788-0010.
Procurement Description:
APT EPIN: 82617P0025 Agency: DEP Your Name: James Lauria Phone: 718-595-6216 Email: [email protected] Please specifically identify the service(s) being procured.
FY17NDEPBED&C40Design Services and design services during construction for the NYC DEP. The general scope of work for contract NR-Struct-Des involves extensive site investigations and assessment for the repairs of various structural components at the North river Wastewater Treatment Plant.
__ If the contract to be awarded as a result of this procurement action is a task order contract (multiple or single award and multiple or single agency) that does not simultaneously result in the award of a first task order, then displacement determinations will be made in conjunction with the issuance of task orders pursuant to the subject contract. (Check this box only if you are completing this form for a task order contract that will not simultaneously result in the award of the first task order. If you check this box, do not fill out the remainder of this form.)
If the contract to be awarded as a result of this procurement action does simultaneously result in the award of a first task order, then the displacement determination for that first task order must be done prior to issuance of the solicitation and you must complete either Part 1 or Part 2 of this form. Part 1: Certification of No Displacement
X The Agency has determined that the contract resulting from this procurement action will not result in the displacement of any City employee within this Agency, as defined by Charter § 312(a).
The basis upon which the Agency has made this determination (Please answer all questions under Part 1):
Do any civil service and/or job titles within this Agency currently perform the services sought by the proposed contract and/or services of a substantially similar nature or purpose? Yes __ No X If so, list the names of such titles and the extent to which Agency employees within such titles currently perform such services. Project Manager 362, Civil Engineer 182, Electrical Engineer 66, Enviormental Engineer 60, Mechanical Engineer 118, Architect 13, Checmial Engineer 31
Do the services sought by the proposed contract expand, supplement, or replace existing services? Yes X No __ In either event, include a detailed description comparing the services sought by the proposed contract with such existing services. The contract will expand and supplement our experience in the specialized area of structural components and underwater structural systems.
Is there capacity within the Agency to perform the services sought by the proposed contract? Yes __ No X If not, provide a detailed description specifying the ways in which the Agency lacks such capacity. The agency lacks requisite experience in the required specialty area and existing staff is presently assigned to other projects.
For the term of the proposed contract, list the projected headcount of employees within such titles or employees who perform such services and/or services of a substantially similar nature or purpose. Project Manager 362, Civil Engineer 182, Electrical Engineer 66, Environmental Engineer 60, Mechanical Engineer 118, Architect 13, Chemical Engineer 31 X Check this box to confirm that none of the below events have occurred within the Agency in the past three years.
The displacement of a City employee within the agency who performs or has performed the services sought by the proposed contract and/or services of a substantially similar nature or purpose; or
The announcement of spending reductions in connection with a budgetary program, including but not limited to a Program to Eliminate the Gap, that could result or has resulted in the displacement of a City employee within the Agency who performs or has performed the services sought by the proposed contract and/or services of a substantially similar nature or purpose; or
Any other statement by an Agency or by the Mayor of a specific anticipated employment action that could result or has resulted in the displacement of a City employee within the Agency who performs or has performed the services sought by the proposed contract and/or services of a substantially similar nature or purpose.
List any other bases for the Agency’s determination that the contract resulting from this procurement action will not result in the displacement of any City employee within this Agency. None.
Part 2: Certification of Displacement
__ The agency has determined that displacement, as defined by Charter § 312(a), has or will occur as a result of this contracting action. The agency has performed the required cost-benefit analysis, as described in Charter § 312(a). ATTACHMENT A PROPOSAL COVER LETTER
RFP TITLE: NR-STRUCT-DES - Design Services and Design Services During Construction for North River Wastewater Treatment Plant Structural Improvements Project PIN: 82617WP01396
Proposer Name: ______
Single firm or a multi-firm venture
Address: ______
______
Tax Identification #: ______
Description of the nature of the entity______
List of all sub-consultants, if any that are part of the proposal.
a)______
b)______
c) ______
d)______
Proposer’s Contact Person:
Name: ______
Title: ______
Telephone #: ______Email ______
Proposer’s Authorized Representative:
Name: ______
Title: ______
Signature: ______
Date: ______
26 NR-STRUCT-DES RFP 12/14/2016
Is the response printed on both sides, on recycled paper containing the minimum percentage of recovered fiber content as requested by the City in the instructions to this solicitation?
Yes No
MINIMUM QUALIFICATION REQUIREMENTS:
Is Proposer authorized to provide engineering services in the State of New York and is Certificate of Authorization included?
Yes No
Are key personnel responsible for the delivery of the project licensed to practice engineering in the State of New York and are copy(ies) of NYS Professional Engineer License(s) provided?
Yes No
27 NR-STRUCT-DES RFP 12/14/2016 ATTACHMENT B PRICE PROPOSAL
RFP TITLE: NR-STRUCT-DES - Design Services and Design Services During Construction for North River Wastewater Treatment Plant Structural Improvements Project PIN: 82617WP01396
I affirm and certify that I am an authorized agent of this firm and/or joint venture submitting this Price Proposal for this project to make this commitment.
(Print Name) ______(Firm) ______
(Sign Name) ______(Title) ______
(Date) ______
28 NR-STRUCT-DES RFP 12/14/2016 ATTACHMENT B SAMPLE PROPOSAL COST TABLE (LUMP SUM)
Total Total Labor Labor Total Phase 2 Phase Description Hours Effort ODCs Total Cost 2.1 Project Management-FAC 1.1.1 FAC PMIS Training 1.2.1 FAC Mthly Reports and Mtgs 1.3.1 FAC Mthly Invoices N/A
1.4.1 Materials for public meetings
1.4.2 Minutes of public meetings and preparation of requested follow-up materials 1.5.1 PMP-Facility Planning Phase (Draft) 1.5.2 PMP-Facility Planning Phase (Final) 1.6.1 Consent Decree management Plan N/A 1.7.1 Project Kick-off Meeting - Meeting Materials 1.7.2 Project Kick-off Meeting - Meeting, etc, Minutes 1.8.1 QMP Draft-Facility Planning Phase 1.8.2 QMP Final-Facility Planning Phase 1.9.1 EHASP Draft-Facility Planning Phase 1.9.2 EHASP Final-Facility Planning Phase 1.9.3 EHASP Final-Facility Planning Phase - Update
2.2 QA/QC-FAC 2.2.1 QA/QC
2.3 Permit Management 2.3.1 Regulatory Compl Mgt Plan-Draft 2.3.2 Regulatory Compl Mgt Plan-Final 2.3.3 DEP Permit Resource Division Review Meeting 2.3.4 Permitting Meeting Reports, and Permitting Progress Meetings with outside regulatory agencies and/or stakeholders 2.3.5 Permit applications.
2.4 Risk Management 2.4.1 RMP/Risk Register – Draft 2.4.3 Risk Management - Risk Register Updates
2.5 Existing Conditions Assessment 2.5.a.1 TM documenting collected information, outcome of the review and identification of any major gaps
29 NR-STRUCT-DES RFP 12/14/2016 2.5.b.1 TM documenting all observations during the site visits and highlighting deficiencies 2.5.c.1 Preliminary Hazards Inventory Report 2.5.d.1 NDE Results Memoranda 2.5.e.1 Existing Conditions of NR WWTP Underwater Structural Elements Report – Draft 2.5.e.2 Existing Conditions of NR WWTP Underwater Structural Elements Report – Rev. 1 2.5.e.3 Existing Conditions of NR WWTP Underwater Structural Elements Report – Final 2.5.f Prepare Site Topographic and Underground N/A Utility Survey 2.5.g.1 Title Search Memorandum 2.5.h Facility Security Assistance N/A 2.5. i.1 Existing Conditions Assessment Report – Draft 2.5. i.2 Existing Conditions Assessment Report – Final
2.6 Laser Surveying and 3D/4D Modeling 2.6.1 3D Model
2.7 Facility Plan Alternatives Analysis, Workshops and Report 2.7.a.1 Caissons TM – Draft 2.7.a.2 Caissons TM – Final 2.7.a.3 Underdeck Membrane and Concrete Underdeck TM – Draft 2.7.a.4 Underdeck Membrane and Concrete Underdeck TM – Final 2.7.a.5 Ice Breaker and Perimeter Fencing TM – Draft 2.7.a.6 Ice Breaker and Perimeter Fencing TM – Final 2.7.a.7 Sludge Barge Loading Dock TM – Draft 2.7.a.8 Sludge Barge Loading Dock TM – Final 2.7.a.9 Concrete and Rebar Deficiencies (facility wide) TM – Draft 2.7.a.10 Concrete and Rebar Deficiencies (facility wide) TM – Final 2.7.a.11 Expansion Joints (Interior Structural Levels) TM – Draft 2.7.a.12 Expansion Joints (Interior Structural Levels)TM – Final 2.7.a.13 Roof Structural Members TM – Draft 2.7.a.14 Roof Structural Members TM – Final 2.7.a.15 Plant wide Drain System TM – Draft 2.7.a.16 Plant wide Drain System TM – Final
30 NR-STRUCT-DES RFP 12/14/2016 2.7.a.17 Roof Drainage System TM – Draft 2.7.a.18 Roof Drainage System TM – Final 2.7.a.19 Roof Expansion Joints TM – Draft 2.7.a.20 Roof Expansion Joints TM – Final 2.7.a.21 Facility Plan Report– Draft 2.7.a.22 Facility Plan Report– Final 2.7.b.1 Caissons TM Workshop 2.7.b.2 Underdeck Membrane and Concrete Underdeck TM Workshop 2.7.b.3 Ice Breaker and Perimeter Fencing TM Workshop 2.7.b.4 Sludge Barge Loading Dock TM Workshop 2.7.b.5 Concrete and Rebar Deficiencies TM Workshop 2.7.b.6 Expansion Joints (Interior Structural Levels) TM Workshop 2.7.b.7 Plantwide Drain System TM Workshop 2.7.b.8 Roof Structural Member TM Workshop 2.7.b.9 Roof Drainage System TM Workshop N/A 2.7.b.10 Roof Expansion Joints TM Workshop 2.7.b.11 Facility Plan Workshops
2.8 Third Party Engineering Reviews 2.8.a.1 VE Participation 2.8.a.2 VE Response Memorandum
2.9 Basis of Design Report and Workshop 2.9. a.1 BODR - Draft 2.9. a.2 BODR - Final 2.9.b.1 BODR Workshop (including meeting minutes) 2.9.b.2 Preliminary Sustainability Workshop submittals 2.9.b.3 EHS Workshop (including meeting minutes) 2.9.b.4 Permit Identification and Regulatory Agencies Workshops (including meeting minutes)
GRAND TOTAL
LUMP SUM TOTAL
Note: 1. Expand as necessary, to sub-task level to correspond with the detailed scope of work. 2. Task 1 Project Management Services shall be budgeted in the project phase in which these services will be provided.
31 NR-STRUCT-DES RFP 12/14/2016 ATTACHMENT B SAMPLE PROPOSAL COST TABLE (COST + FIXED FEE)
Total OH Billable Rate Profit Rate Total Total Firm Employee Title Anticipated Direct Salary Rates ($) (%) (%) ($) Hours Per Year Hours Cost ($) Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Task 3: Design Phase Services 1.PM Services 2.QA/QC 3.Risk Management 4.Permit Management 5. PDC Approval 6. ULURP 7. Site Acquisition 8.CEQR/EAS 9. Technical Work 10. VE 3rd Party Review 11a. 30% Design 11b.Sustainability 12a. 60% Design 12b. EHS Design 13. 90% Design 14. 100% Design 15.Design ODCs Subtotal (Hours) Construction Task N/A Subtotal (Cost)Construction Task N/A Task 4: Construction Procurement Phase Services 1.PM Services 2. CP Services 3.CP ODCs Subtotal (Hours) Construction Procurement Task N/A Subtotal (Cost)Construction Procurement Task N/A
32 NR-STRUCT-DES RFP 12/14/2016
Total OH Billable Rate Profit Rate Total Total Firm Employee Title Anticipated Direct Salary Rates ($) (%) (%) ($) Hours Per Year Hours Cost ($) Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Task 5: Construction Phase Services 1.PM Services 2.QA/QC 3.DSDC
Subtotal (Hours) Construction Task N/A Subtotal (Cost)Construction Task N/A Task 6: Construction Close- Out 1.PM Services 2. Close-out Admin. 3. C of O/OA 4. Permit Management & Closeout
Subtotal (Hours) Close out Task N/A Subtotal (Cost) Closeout Task N/A Total Cost Task 3-6 Proposal Total Cost Note: 1. Expand as necessary, to sub-task level to correspond with the detailed scope of work. 2. Task 1 Project Management Services shall be budgeted in the project phase in which these services will be provided.
33 NR-STRUCT-DES RFP 12/14/2016 ATTACHMENT C ACKNOWLEDGEMENT OF ADDENDA
RFP TITLE: NR-STRUCT-DES - Design Services and Design Services During Construction for North River Wastewater Treatment Plant Structural Improvements Project PIN: 82617WP01396
Directions: Complete Part I or Part II, whichever is applicable.
PART I: LISTED BELOW ARE THE DATES OF ISSUE FOR EACH ADDENDUM RECEIVED IN CONNECTION WITH THIS RFP:
ADDENDUM #1, DATED ADDENDUM #2, DATED ADDENDUM #3, DATED ADDENDUM #4, DATED ADDENDUM #5, DATED ADDENDUM #6, DATED ADDENDUM #7, DATED ADDENDUM #8, DATED ADDENDUM #9, DATED ADDENDUM #10, DATED
PART II:
NO ADDENDUM WAS RECEIVED IN CONNECTION WITH THIS RFP.
Proposer’s Name ______Signature ______
Date ______
34 NR-STRUCT-DES RFP 12/14/2016 ATTACHMENT D DOING BUSINESS DATA FORM
RFP TITLE: NR-STRUCT-DES - Design Services and Design Services During Construction for North River Wastewater Treatment Plant Structural Improvements Project PIN: 82617WP01396
SEE FOLLOWING PAGES
35 NR-STRUCT-DES RFP 12/14/2016
ATTACHMENT E DOING BUSINESS DATA FORM FAQ
RFP TITLE: NR-STRUCT-DES - Design Services and Design Services During Construction for North River Wastewater Treatment Plant Structural Improvements Project PIN: 82617WP01396 SEE FOLLOWING PAGES
36 NR-STRUCT-DES RFP 12/14/2016 DOING BUSINESS ACCOUNTABILITY PROJECT QUESTIONS AND ANSWERS ABOUT THE DOING BUSINESS DATA FORM
What is the purpose of this Data Form? To collect accurate, up-to-date identification information about organizations that have business dealings with the City of New York in order to comply with Local Law 34 of 2007 (LL 34), a campaign finance reform law. LL 34 limits municipal campaign contributions from principal officers, owners and senior managers of entities doing business with the City and mandates the creation of a Doing Business Database to allow the City to enforce the law. The information requested in this Data Form must be provided, regardless of whether the organization or the people associated with it make or intend to make campaign contributions. No sensitive personal information collected will be disclosed to the public.
Why have I received this Data Form? The contract, franchise, concession, grant or economic development agreement you are proposing on, applying for or have already been awarded is considered a business dealing with the City under LL 34. No proposal or application will be considered and no award will be made unless this Data Form is completed. Most transactions valued at more than $5,000 are considered business dealings and require completion of the Data Form. Exceptions include transactions awarded on an emergency basis or by “conventional” competitive sealed bid (i.e. bids that do not use a prequalified list or “Best Value” selection criteria.) Other types of transactions that are considered business dealings include real property and land use actions with the City.
What individuals will be included in the Doing Business Database? The principal officers, owners and certain senior managers of organizations listed in the Doing Business Database are themselves considered to be doing business with the City and will also be included in the Database. • Principal Officers are the Chief Executive Officer (CEO), Chief Financial Officer (CFO) and Chief Operating Officer (COO), or their functional equivalents. See the Data Form for examples of titles that apply. • Principal Owners are individuals who own or control 10% of more of the organization. This includes stockholders, partners and anyone else with an ownership or controlling interest in the entity. • Senior Managers include anyone who, either by job title or actual duties, has substantial discretion and high-level oversight regarding the solicitation, letting or administration of any contract, concession, franchise, grant or economic development agreement with the City. At least one Senior Manager must be listed or the Data Form will be considered incomplete.
I have already completed a Doing Business Data Form; do I have to submit another one? Yes. An organization is required to submit a Doing Business Data Form each time it enters into a transaction considered a business dealing with the City, including contract, concession and franchise proposals. However, the Data Form has both a Change option, which requires only information that has changed since the last Data Form was filed, and a No Change option. No organization should have to fill out the entire Data Form more than once.
If you have already submitted a Data Form for one transaction type (such as a contract), and this is the first time you are completing a Data Form for a different transaction type (such as a grant), please select the Change option and complete Section 4 (Senior Managers) for the new transaction type.
Will the personal information on this Data Form be available to the public? No. The names and titles of the officers, owners and senior managers reported on the Data Form will be made available to the public, as will information about the organization itself. However, personal identifying information, such as home address, home phone and date of birth, will not be disclosed to the public, and home address and phone number information will not be used for communication purposes.
Page 1 of 2 Printed on paper containing 30% post-consumer material I provided some of this information on the VENDEX Questionnaire; do I have to provide it again? Yes. Although the Doing Business Data Form and the VENDEX Questionnaire request some of the same information, they serve entirely different purposes. In addition, the Data Form requests information concerning senior managers, which is not part of the VENDEX Questionnaire.
What organizations will be included in the Doing Business Database? Organizations that hold $100,000 or more in grants, contracts for goods or services, franchises or concessions ($500,000 for construction contracts), or that hold any economic development agreement or pension fund investment contract, are considered to be doing business with the City for the purposes of LL 34. Because all of the business that an organization does or proposes to do with the City will be added together, the Data Form must be completed for all transactions valued at more than $5,000 even if the organization doesn’t currently do enough business with the City to be listed in the Database.
No one in my organization plans to contribute to a candidate; do I have to fill out this Data Form? Yes. All organizations are required to return this Data Form with complete and accurate information, regardless of the history or intention of the entity or its officers, owners or senior managers to make campaign contributions. The Doing Business Database must be complete so that the Campaign Finance Board can verify whether future contributions are in compliance with the law.
My organization is proposing on a contract with another firm as a Joint Venture that does not exist yet; how should the Data Form be completed? A joint venture that does not yet exist must submit a Data Form for each of its component firms. If the joint venture receives the award, it must then complete a form in the name of the joint venture.
How long will an organization and its officers, owners and senior managers remain listed on the Doing Business Database? • Contract, Concession and Economic Development Agreement holders: generally for the term of the transaction, plus one year. • Franchise and Grant holders: from the commencement or renewal of the transaction, plus one year. • Pension investment contracts: from the time of presentation on an investment opportunity or the submission of a proposal, whichever is earlier, until the end of the contract, plus one year. • Line item and discretionary appropriations: from the date of budget adoption until the end of the contract, plus one year. • Contract proposers: for one year from the proposal date or date of public advertisement of the solicitation, whichever is later. • Franchise and Concession proposers: for one year from the proposal submission date. For information on other transaction types, contact the Doing Business Accountability Project.
How does a person remove him/herself from the Doing Business Database? When an organization stops doing business with the City, the people associated with it are removed from the Database automatically. However, any person who believes that s/he should not be listed may apply for removal. Reasons that a person would be removed include his/her no longer being the principal officer, owner or senior manger of the organization. Organizations may also update their database information by submitting an update form. Removal Request and Update forms are available online at www.nyc.gov/mocs (once there, click MOCS Programs) or by calling 212-788-8104.
What are the new campaign contribution limits for people doing business with the City? Contributions to City Council candidates are limited to $250 per election cycle; $320 to Borough President candidates; and $400 to candidates for citywide office. Please contact the NYC Campaign Finance Board for more information at www.nyccfb.info, or 212-306-7100.
The Data Form is to be returned to the City office that issued it.
If you have any questions about the Data Form please contact the Doing Business Accountability Project at 212-788-8104 or [email protected]. 06/21/12 ATTACHMENT F
SCOPE OF SERVICES FOR DESIGN SERVICES
RFP TITLE: NR-STRUCT-DES - Design Services and Design Services During Construction for North River Wastewater Treatment Plant Structural Improvements Project PIN: 82617WP01396
I. General Requirements:
The following scope of services provides a basic framework to meet DEP’s capital project delivery program objectives and performance goals.
A. The Design Engineer shall cause its employees and Subconsultants to familiarize themselves and generally adhere to the Bureau of Engineering Design and Construction’s (“BEDC”) online project delivery system, consisting of Standard Operating Procedures (“SOPs”), design and environmental, health and safety (EHS) guidelines. The project delivery system establishes a framework for standardized project delivery throughout the Project life-cycle based on DEP policies and procedures and best practices in the industry. DEP will make the project delivery system available to the Design Engineer upon request. The Design Engineer may deviate from strict compliance with the project delivery system based on Project-specific needs as long as the intent of the project delivery system is met; however the Design Engineer shall note all such deviations in the Project-specific Project Management Plan (“PMP”).
Changes to the Design Engineer’s Scope of Services that result from additions or modifications to the DEP’s PDS or SOPs made after completion of Contract negotiations may be authorized by the DEP through an Amendment to the Contract.
B. For each deliverable required in this Scope of Services, the Consultant shall provide three (3) hard copies and one (1) electronic copy on compact disc (“CD” or “DVD”) for final deliverables only, and an electronic copy of all documents and versions uploaded to the appropriate folders in BEDC’s Enterprise Project Management Information System (“ePMIS”) system, unless otherwise directed by DEP, or noted in this Scope of Services. Each deliverable until approved by DEP, is subject to revisions at no additional cost.
C. The Design Engineer shall submit all plans, reports, and memoranda required in this Scope of Services in draft and final form, including the incorporation of all finalized stakeholder comments.
D. DEP will provide comments to the Design Engineer on all deliverables within 28 days of submission, except where an alternate timeframe is provided by DEP.
E. The Design Engineer shall provide meeting minutes of all meetings. The minutes will focus on decisions made and open action items. Minutes will be concise and delivered to DEP within three (3) business days of the meeting.
37 NR-STRUCT-DES RFP 12/14/2016 F. Upon completion of the “BODR” at the conclusion of the Facility Planning Phase, if the Commissioner determines that it is in the best interests of DEP to “re-baseline” this Contract’s schedule, Scope of Services, and Maximum Contract Value, DEP and the Design Engineer will review the remaining Design, Construction Procurement, Construction and Closeout Phase services and prepare an amendment to this Contract to reflect the final agreed-upon Maximum Contract Value, Scope of Services, and schedule.
G. The Design Engineer shall develop the design considering environmental impacts, energy efficiency, sustainability, construction workers’ and DEP Operating Bureaus’ workers’ safety in accordance with the American National Standards Institute (“ANSI”)/American Society of Safety Engineers (“ASSE”) Z590.3 Prevention Through Design Guidelines and BEDC’s Prevention Through Design SOPs found in the project delivery system.
H. This scope applies to a Project with only one construction contractor for each anticipated construction contract. If Section 101 of the New York State General Municipal Law, known as the “Wicks Law,” applies to this Project and requires that more than one prime construction contract be awarded, this Scope will be interpreted to refer to multiple construction contractors.
I. The New York State Education Law requires that all business entities providing professional engineering and/or land surveying services in the State of New York obtain a "Certificate of Authorization to provide Engineering and/or Land Surveying Services in New York State" from the State Education Department. All proposers must provide a copy of their Certificate of Authorization along with the proposal.
II. Tasks:
TASK 1. PROJECT MANAGEMENT SERVICES
The Design Engineer shall provide sufficient and well-organized personnel to manage the Project throughout the entire period of this Contract, consistent with industry practices as defined by the Project Management Institute as set forth in BEDC’s Standard Operating Procedures (“SOPs”), and adopted by BEDC through the project delivery system. The Design Engineer will use BEDC’s Enterprise Project Management Information System (“e-PMIS”) to document critical Project management information.
Task 1.1 Web-Based BEDC Enterprise Project Management Information System The Design Engineer shall coordinate with DEP for Project setup and training and shall administer the Project using BEDC’s ePMIS. The ePMIS is a web-based software package that automates workflows of BEDC’s SOPs as well as managing Project documents and reporting. The system will be utilized by representatives of DEP and all stakeholders of the Project including, but not limited to the Design Engineer, the Construction Manager, and construction contractor(s) to facilitate communication and Project administration efficiency.
Attachment H includes:
List of ePMIS workflows Training provided by DEP Computer and internet networking resource requirements 38 NR-STRUCT-DES RFP 12/14/2016 System performance requirements Tablet requirements (if applicable)
The DEP shall train the Consultant on how to use the ePMIS system. The DEP shall provide one (1) eight-hour training sessions for up to two consultant staff. The training session will be at the beginning of the Facility Planning Phase services.
Deliverables: 1.1.1 FAC – PMIS training attendance sign-in sheets (2)
Task 1.2 Monthly Progress Reports and Progress Meetings The Design Engineer shall prepare and submit a monthly progress report as described in the project delivery system from the start of Facility Planning until completion of Construction. The monthly report must be submitted through the ePMIS.
The Design Engineer shall attend monthly progress meetings with DEP’s personnel either in person or by conference call as agreed to in advance by the DEP. Monthly meetings will be managed as described in the project delivery system. Monthly progress meetings must include a discussion of items requiring feedback, a review of a list of outstanding issues requiring resolution, a review of the status of the Project’s scope, a review of the Project’s schedule and budget, and review of the risk register (see Task 2.4, below).
Deliverables:
1.2.1 FAC - Up to thirty six (36) Monthly progress reports, and Monthly Progress Meetings including meeting minutes during Facilities Planning Phase. 1.2.2 DES - Up to thirty four (34) Monthly progress reports, and Monthly Progress Meetings including meeting minutes during Design Phase. 1.2.3 PRO - Up to nine (9) Monthly progress reports, and Monthly Progress Meetings including meeting minutes during Construction Procurement Phase. 1.2.4 CON - Up to ninety six (96) Monthly progress reports, and Monthly Progress Meetings including meeting minutes during Construction Phase. 1.2.5 CO - Up to forty-eight (48) Monthly progress reports, and Monthly Progress Meetings including meeting minutes during Construction Closeout Phase.
* Please note that the high number of monthly progress reports during the construction and construction close out phases are due to the potential four separate construction contracts, each with an individual monthly progress meeting and report due. The numbers noted above may go up if the number of construction contracts is higher.
Task 1.3 Monthly Invoices The Design Engineer shall prepare a monthly invoice, as instructed, that includes a full accounting of all labor and ODC costs organized by Phase and Task. The Design Engineer shall invoice for services and report costs and forecast costs to DEP at the Task and subTask level as required by DEP. The Design Engineer shall collect costs and maintain forecasts to the lowest level of the Scope of Services (Task or Subtask Level) and shall provide this information when requested by DEP. Costs associated with Task 1 (Project Management Services) shall be allocated and invoiced against the corresponding Project Phase. The Design Engineer shall not bill DEP for any efforts 39 NR-STRUCT-DES RFP 12/14/2016 associated with the preparation of monthly invoices. For those portions of the services that are compensated on the basis of lump sum payments, the Design Engineer shall prepare a document detailing the lump sum payment(s) that is being invoiced by the Design Engineer, and the corresponding portions of the services that were performed by the Design Engineer and each subconsultant. Each Invoice shall include the associated approvals by the DEP for the deliverables paid under the lump sum method.
Deliverables: 1.3.1 FAC – Up to thirty six (36) Monthly Invoices during Facilities Planning Phase Services 1.3.2 DES – Up to thirty four (34) Monthly Invoices during the Design Phase Services 1.3.3 PRO - Up to nine (9) Monthly Invoices during Facilities Planning Phase Services 1.3.4 CON – Up to ninety six (96) Monthly Invoices during Facilities Planning Phase Services 1.3.5 CO - Up to forty eight (48) Monthly Invoices during Facilities Planning Phase Services
Task 1.4 Public Outreach Coordination The Design Engineer shall provide technical support to DEP in preparing for public stakeholder meetings at least two (2) weeks prior to scheduled public meetings to allow ample time for internal review and modification of materials. For critical meetings, the Design Engineer must attend a “dry run” preparatory meeting with DEP staff. Preparation of materials for and attendance at five (5) public stakeholder meetings is required under this Task.
Deliverables: 1.4.1. Materials for Public Meetings, five(5) 1.4.2. Minutes of meetings and preparation of requested follow up materials, etc., five(5)
Task 1.5 Project Management Plan The Design Engineer shall develop and implement a Project Management Plan (“PMP”) detailing the manner in which the Project will be planned, managed, and executed. The PMP shall cover staff, scope, schedule, budget, quality, risk, EHS, communications, and document management as described in the project delivery system. The PMP will define the Design Engineer’s approach in delivering the Project and how Project-related information will be communicated in accordance with BEDC’s project delivery system. The Design Engineer shall update the PMP, as necessary, to reflect changes in the Project and all revisions must be submitted to DEP for review and comment. The Design Engineer shall initially prepare the PMP during the Facility Planning Phase, and shall update the PMP for each subsequent phase. The PMP may also be updated within a phase as necessary to reflect changes in the Project. The PMP should be in addition to and coordinated with the Construction Manager’s PMP to minimize duplicated effort and streamline the Project communications and management. The PMP shall also include the following plans:
Risk Management Plan. The plan shall identify how risks will be transferred from the Design Engineer to the CM and managed before and during the Construction Phase of the Project to reduce negative Project impacts.
EHS Management Plan. The plan shall identify how EHS during the project lifecycle will be incorporated into the design following Prevention through Design principles to reduce 40 NR-STRUCT-DES RFP 12/14/2016 the risk during construction and operations. Following the EHS 60% Deep Dive Design Review Workshop the Design Engineer shall provide the project CM team with the EHS Risk Assessment Report and updated Risk Register in order for the CM to track and mitigate any project risks that will carry over to the Construction Phase.
Sustainability Management Plan. The Sustainability Management Plan (SMP) shall demonstrate how sustainable design elements will be incorporated into the design and managed during the Construction Phase of the Project. The SMP shall include the project’s sustainability goals and features, as well as, potential third-party accreditation (LEED/Envision). The SMP shall also include provisions for the transfer of the sustainability goals of thr project from Design to construction.
Deliverables:
1.5.1 PMP – Facility Planning Phase – Draft and Final 1.5.2 PMP Update – Design Phase 1.5.3 PMP Update – Procurement Phase 1.5.4 PMP Update – Construction and Closeout Phases
Task 1.6 Consent Decree Management Plan – N/A Task 1.7 Phase Kick-Off Meetings DEP will review the PMP, including a discussion of the planned roles and responsibilities, the Project scope, schedule, budget, Project control processes, deliverables, and workshops. The purpose of the meeting is to create alignment among the stakeholders regarding the Project delivery plan, goals, objectives, expectations of all stakeholders, and measurements of success. The Design Engineer shall hold a kick-off meeting at the start of Facility Planning and Design Phases. Deliverables:
1.7.1. Facility Planning Phase Kickoff Meeting 1.7.2. Design Phase Kickoff Meeting 1.7.3. Procurement Phase Kickoff Meeting 1.7.4. Construction and Closeout Phases Kickoff Meeting
Task 1.8 Quality Management Plan The Design Engineer shall prepare a Project Quality Management Plan (“QMP”) consistent with BEDC’s Design Quality Management Manual (“DQMM”) and project delivery system requirements. The QMP must define the approach that the Design Engineer will use to deliver a quality product. The Design Engineer shall update the QMP, as necessary, to reflect changes in the Project and all revisions must be submitted to DEP for review and comment. The Design Engineer shall initially prepare the QMP during the Facility Planning Phase, and shall update the QMP for each subsequent phase. The QMP may also be updated within a phase as necessary to reflect changes in the Project. The QMP should be in addition to and coordinated with the Construction Manager’s QMP to minimize duplicated effort and streamline the Project communications and
41 NR-STRUCT-DES RFP 12/14/2016 management. All deliverables must be reviewed prior to submission to DEP and documentation of all reviews must be provided with each submission.
Deliverables:
1.8.1 QMP – Draft 1.8.2 QMP – Final
Task 1.9 Environmental Health and Safety Plan (“EHASP”) The EHASP is a plan that describes the Design Engineer’s workforce EHS requirements. The Design Engineer shall submit an EHASP for approval before conducting field and site work on DEP property in accordance with the project delivery system requirements. The EHASP shall follow BEDC’s EHS standards, and the Design Engineer shall attend a site orientation program that includes the project site hazards. The Design Engineer shall initially prepare the EHASP during the Facility Planning Phase, shall include the EHASP in the PMP, and shall update the EHASP for each subsequent project phase . The Design Engineer should review their EHASP during the Construction Phase against the CM and contractor’s EHASP to verify that all construction risks have been included and updated. Additionally, the Design Engineer shall provide their staff with site specific EHASP refreshers on an annual basis. Deliverables:
1.9.1 Environmental Health and Safety Plan – Draft 1.9.2 Environmental Health and Safety Plan – Revision 1 1.9.3 Environmental Health and Safety Plan - Final
TASK 2. FACILITY PLANNING PHASE SERVICES
The Facility Planning Phase of the Project includes Project scoping/planning activities that culminate in the preparation of a Basis of Design Report (“BODR”). The BODR will provide additional definition to the Project’s scope, schedule, and budget, and includes the necessary technical analysis and operational input to initiate the preparation of construction contract documents during the Design Phase. The BODR document will not modify DEP’s or the Design Engineer’s obligations under this contract, which can only be changed through a formal amendment of this contract that has been registered under Section 328 of the City Charter.
Task 2.1 Project Management Services (See Task 1) The Design Engineer shall include in this task, all Project Management Services efforts that will occur in the Facility Planning Phase. During the Facility Planning Phase the Design Engineer is expected to prepare an initial PMP and other plans as required under Task 1 specific to the Facility Planning Phase.
Task 2.2 Quality Assurance/Quality Control The Design Engineer shall perform all quality reviews as identified in the approved Project QMP consistent with BEDC’s Design Quality Management Plan and project delivery system. All Project deliverables shall be reviewed prior to submission and documentation of all reviews shall be provided with each submission. 42 NR-STRUCT-DES RFP 12/14/2016 Task 2.3 Permit Management The Design Engineer shall prepare a Regulatory Compliance Management Plan at the initiation of the Facility Planning Phase to establish the regulatory compliance roles and responsibilities and strategy for permit compliance as outlined in the project delivery system. The plan will be reviewed by DEP’s Permit Resource Division (“PRD”) to support collaboration between the Design Engineer and PRD in the interest of ensuring permit success.
The Design Engineer shall compile, and update as necessary, a permit identification checklist (“PIC”) identifying all requisite permits based on the Project scope of construction. The Consultant shall participate in a permit identification meeting with PRD to review and reconcile the PIC for completeness. Upon review and reconciliation of the PIC with the PRD, the Consultant shall update the Draft Regulatory Compliance Management Plan establishing strategy for permit compliance as outlined in the project delivery system, and providing information necessary to populate ePMIS Permit Processes.
The Design Engineer shall familiarize itself with the New York State Environmental Quality Review Act (“SEQRA”) and the City Environmental Quality Review (“CEQR”) processes and requirements. The Design Engineer shall include recommendations regarding compliance in the Regulatory Compliance Management Plan, including a list of analyses to be performed and an integrated list of permit compliance activities to be performed within the overall Project schedule.
In addition, the Design Engineer shall gather all data and prepare all permit applications as necessary to maintain the Project schedule and reduce the risk of future Project scope changes resulting from permit requirements. Permits shall include those necessary to perform the facility planning phase investigations and assessments in the Hudson River, as well as, the work within the facility and the Riverbank State Park. The Design Engineer shall ensure all predicate requirements for the environmental approvals and permits necessary to deliver the Project are met and shall support DEP in securing the requisite approvals and permits in a timely manner so as not to affect the Project schedule.
Deliverables:
2.3.1 Regulatory Compliance Management Plan – Draft 2.3.2 Regulatory Compliance Management Plan - Final 2.3.3 DEP Permit Resource Division Review Meeting 2.3.4 Up to fifteen (15) Permitting Meeting Reports, and Permitting Progress Meetings with outside regulatory agencies and/or stakeholders. 2.3.5 Permit applications required to allow for investigations and assessments during Facility Planning and Design Phases.
See Task 2.9 b for workshop requirement.
Task 2.4 Risk Management The Design Engineer shall implement a risk management program consistent with the approved Risk Management Plan (“RMP”). The Design Engineer shall provide services that include, but are not limited to, continuously maintaining a risk register, tracking all potential risks, hosting risk identification and mitigation workshops, and incorporating identified risks into the Project schedule 43 NR-STRUCT-DES RFP 12/14/2016 and budget. The risk register will be reviewed at each monthly progress meeting and updated immediately as new risks are identified. The risk workshops must be held no less frequently than quarterly.
Deliverables:
2.4.1 RMP/Risk Register – Draft 2.4.2 Risk Workshops and RMP/Risk Register – Updates 1 through 12
Task 2.5 Existing Conditions Assessment
The Design Engineer shall perform assessments of the existing conditions of the NR WWTP as detailed in Section III: Project Description and associated facilities to support the detailed identification of the Project scope requirements. The Design Engineer shall conduct field investigation studies necessary to identify recommended facility upgrades to meet the targeted useful life goals and to minimize field condition construction contract change orders during construction. EngineerThe existing conditions assessment report shall be limited to the areas defined in Section III – Project Description and Detailed Scope of Services.
The Design Engineer shall conduct site visits and review as-built drawings, corresponding documentation, and prior hazardous material investigation reports, if applicable. Based on existing knowledge of the facility or based on the results of the site visits and hazardous materials investigation, the Design Engineer shall, as appropriate, conduct physical testing only to verify facility conditions, and address data gaps necessary to support Project scoping and development of the BODR.
Task 2.5 a Collect Existing Data and As-built Drawings
The Design Engineer shall consult with DEP to identify the data needs necessary to complete the Project scope. The Design Engineer shall transmit a request for existing documentation and data to DEP. DEP will transmit to the Design Engineer all relevant and available existing data and information related to the performance and condition of the existing facilities including, but not limited to, “legacy data” on existing hazards, as-built drawings, existing plans and reports, operational data, water quality data, etc. The Design Engineer shall review the information provided by DEP (including all documents included in this RFP’s DEP Library) and provide a memorandum documenting the information reviewed and identifying any major gaps in information.
Deliverables:
2.5.a.1. TM documenting collected information, outcome of the review and identification of any major gaps
Task 2.5 b Conduct Site Visits to Verify As-Built Drawings and Prepare Photographic Inventory
The Design Engineer shall review as-built drawings and conduct site visits to verify as-built drawings and record existing conditions. The Design Engineer shall conduct site visits to assess and document the overall condition of the infrastructure at the NR WWTP associated facilities that may be impacted by the construction. These site visits must include the inspection of all facilities that
44 NR-STRUCT-DES RFP 12/14/2016 will be impacted by construction with the goal of minimizing the need for field condition construction contract change orders. The inspection of the visible infrastructure must focus on physical conditions, expected life, and obvious code violations.
Inspection areas and photographic documentation shall include, but not be limited to, visible and accessible locations of the areas defined in Section III – Project Description and Detailed Scope of Services. Electrical enclosure interiors, conduits, cables, equipment and piping located in concrete slabs or chases, below water surfaces or behind pipes and ducts, shall also be confirmed prior to concluding the on-site investigations.
The Design Engineer shall conduct an Initial Findings Meeting with the DEP to discuss significant findings and coordinate next steps and intended direction and to solicit DEP feedback for the resolution of any risks or issues that are encountered.
For exposed physical features, the Design Engineer shall prepare a photographic log with detailed descriptions, accompanied by a photo-location map with photo number and direction facing. This log shall include all underwater photos taken of the caissons, underdeck membrane, ice breakers, and sludge barge load dock to document all existing conditions of structural elements. The Design Engineer shall provide a memorandum documenting all observations during the site visits and highlighting deficiencies. The memorandum shall include copies of photographs, sketches, field notes, references, and other material documenting the existing conditions or necessary to draw conclusions on the condition of current facilities.
Deliverables:
2.5.b.1. Initial Findings Meeting (agenda and meeting minutes) 2.5.b.2. Photographic Inventory (limited to areas impacted by scope of construction) 2.5.b.3. TM documenting all observations during the site visits and highlighting deficiencies.
Task 2.5 c Preliminary Hazards Inventory
The Design Engineer shall conduct a Preliminary Hazards Inventory based on review of existing legacy data, staff interviews, and performance of a site walkthrough to identify known and potential hazardous materials and/or environmental conditions impacted by the scope of construction.
Known and potential hazardous materials shall include but not be limited to asbestos, lead, mercury and PCB containing materials, batteries, chlorofluorocarbons, treated wood, abandoned chemicals, chemical and petroleum bulk storage containers and tanks, contaminated soils and groundwater, mold, and radioactive substances. No physical testing shall be performed during the Facility Planning Phase unless critical to making decisions regarding Project scope. Rather the results of the existing data review, interviews and visual observations shall be summarized in a Preliminary Hazards Inventory Report, detailing the location and type of each suspect material requiring further investigation during the Design Phase. The Preliminary Hazards Inventory Report shall be incorporated into the Existing Conditions Assessment Report and will ultimately be used to develop a Hazardous Materials Sampling Plan during the Design Phase to verify data gaps and hazardous materials that will be encountered during construction.
Deliverables:
2.5.c.1. Preliminary Hazards Inventory Report 45 NR-STRUCT-DES RFP 12/14/2016 Task 2.5 d Conduct Non-Destructive and Physical Testing to Verify Infrastructure Conditions
The Design Engineer shall identify and implement appropriate non-destructive and physical testing of existing infrastructure that may be impacted by the construction. The Design Engineer, by conducting testing and analysis, shall develop recommendations regarding the protection of existing infrastructure. Where impact is unavoidable, the Design Engineer shall determine a way to mitigate such impact. In instances where it is most practical or cost-effective for DEP to assume the risk of impact on existing infrastructure, the Design Engineer shall document those risks and the associated rationale for the acceptance of those risks by DEP via Task 2.4. This shall include non-destructive testing of underwater structural elements in the Hudson River, as well as the roof drains and expansion joints after removing grade and subgrade materials to allow permit the required investigations.
Deliverables:
2.5.d.1. NDE and Physical Testing Results Memoranda
Task 2.5 e Collect Preliminary Geotechnical Information
The Design Engineer shall collect existing geotechnical information including historical United States Geological Survey (“USGS”) data, previous geotechnical investigation reports, and field notes from previous on-site construction. The Design Engineer shall conduct additional preliminary geotechnical testing, as necessary to effectively evaluate Project alternatives, to formulate recommendations, and to prepare the BODR. Although environmental soil sampling is not recommended during the Facility Planning Phase, the existing geotechnical information and results of the preliminary geotechnical investigation, as applicable, shall be reviewed by the Design Engineer for evidence of potential contamination affecting soil management strategies developed during the Design Phase (e.g,. historic fill, solid waste/debris-containing fill, chemical staining, etc.).
Deliverables:
2.5.e.1 Existing Conditions of NR WWTP Underwater Structural Elements Report – Draft 2.5.e.2 Existing Conditions of NR WWTP Underwater Structural Elements Report – Rev. 1 2.5.e.3 Existing Conditions of NR WWTP Underwater Structural Elements Report – Final
Task 2.5 f Prepare Site Topographic and Underground Utility Survey – N/A
Task 2.5 g Property Title and Boundary Assistance
As necessary, the Design Engineer shall assist DEP with investigation into property ownership and to determine boundaries for areas associated with the Roof of the North River WWTP. This may be necessary to determine what access easements may be required. Under this task the Design Engineer shall review property ownership records and, if necessary, provide opinions of title on properties where ownership or interests are not clear. Based upon the opinions rendered and direction from DEP, the Design Engineer shall field mark the property boundaries.
Deliverables: 46 NR-STRUCT-DES RFP 12/14/2016 2.5.g.1. Title Search Memorandum
Task 2.5 h Facility Security Assistance - N/A
Task 2.5 i Existing Conditions Assessment Report
The Design Engineer shall incorporate the findings derived from Task 2.5 a through 2.5 h into an Existing Conditions Assessment Report. The report will summarize the findings from site visits, the review of historical data, the review of as-built drawings, and a comparison of exposed (and uncovered) facilities, and the results of physical testing of the facilities critical to scope. Any deviations or changed conditions from the historical data and in the as-built records shall be documented. The findings shall include details of potential and/or actual environmental concerns that may affect the construction and alternatives to preventing further deterioration.
Deliverables:
2.5. i.1 Existing Conditions Assessment Report – Draft 2.5. i.2 Existing Conditions Assessment Report – Final
Task 2.6 Laser Surveying and 3D/4D Modeling The Design Engineer shall conduct a laser survey of existing, affected areas of the North River WWTP facilities that are accessible and use this information to prepare the initial 3D/4D model for the facilities. The laser survey, together with the topographic survey and other information, will be assembled to create the initial Building Information Model (“BIM”). This will be a 3D model of the affected systems within the North River WWTP facility, in particular the Plantwide drainage piping.
Deliverables:
2.6.1. 3D Model
Task 2.7 Preliminary Power Distribution Studies The Consultant shall conduct Preliminary Power Distribution Studies. These studies shall cover the proposed facilities and their interrelationship with the existing facilities. The extent and level of the studies required for the Facility Planning Phase shall be established by the Consultant as approved by the DEP. Preliminary Power Distribution Studies shall be of sufficient detail to support decisions relating to the selection of major equipment; the scenarios relating to facility, area, and equipment operation; and the proposed power distribution system layout. Software used for the Power Distribution Studies shall be by SKM Systems Analysis, Inc.
Deliverables:
2.7.1. Preliminary Power Distribution Studies and Report
Task 2.8 Sustainability The Consultant shall conduct sustainability studies for compliance with NYC Local Laws and with the objectives set forth in PlaNYC, subsequently expanded in OneNYC. The Consultant shall
47 NR-STRUCT-DES RFP 12/14/2016 address the Project’s major sustainability initiatives including, but not limited to: water use, energy use, carbon footprint, climate change resiliency, renewable energy, building materials and waste. The major sustainability deliverables shall be of sufficient detail to support decisions relating to selection of project design alternatives and reporting requirements. In addition, the design shall be verified through an approved third-party green building standard to assess triple bottom line criteria as defined by NYC Local Laws 31 of 2016 and 32 of 2016. The extent and level of the studies required for the sustainability requirements shall be established by the Consultant as approved by the DEP.
Deliverables:
2.8.1. Preliminary USGBC LEED Assessment or Preliminary ISI Envision Assessment 2.8.2. Energy Profile Report (aka Energy and Greenhouse Gas Report) 2.8.3. Climate Risk Assessment and Adaptation Plan 2.8.4. Waste Management Report 2.8.5. Recycled Material Content Plan 2.8.6. Stormwater Management Plan
Task 2.9 Facility Plan Alternatives Analysis, Workshops and Report Task 2.9.a Facility Plan Report
The Design Engineer shall prepare a Facility Plan Report that documents the existing conditions, Project goals and criteria, alternative analyses (including cost comparisons of key Project elements), recommendations and a Project Implementation Plan including overall cost and schedule. The Facility Plan Report must provide comprehensive engineering support for all Project recommendations consistent with DEP’s preferences and budget constraints.
To support Facility Plan related decisions, the Design Engineer shall prepare technical memoranda that address the following
Deliverables:
2.9.a.1 Caissons TM – Draft 2.9.a.2 Caissons TM – Final 2.9.a.3 Underdeck Membrane and Concrete Underdeck TM – Draft 2.9.a.4 Underdeck Membrane and Concrete Underdeck TM – Final 2.9.a.5 Ice Breaker and Perimeter Fencing TM – Draft 2.9.a.6 Ice Breaker and Perimeter Fencing TM – Final 2.9.a.7 Sludge Barge Loading Dock TM – Draft 2.9.a.8 Sludge Barge Loading Dock TM – Final 2.9.a.9 Concrete and Rebar Deficiencies (facility wide) TM – Draft 2.9.a.10 Concrete and Rebar Deficiencies (facility wide) TM – Final 2.9.a.11 Expansion Joints (Interior Structural Levels) TM – Draft 2.9.a.12 Expansion Joints (Interior Structural Levels)TM – Final 2.9.a.13 Roof Structural Members TM – Draft 2.9.a.14 Roof Structural Members TM – Final 2.9.a.15 Plant wide Drain System TM – Draft 48 NR-STRUCT-DES RFP 12/14/2016 2.9.a.16 Plant wide Drain System TM – Final 2.9.a.17 Roof Drainage System TM – Draft 2.9.a.18 Roof Drainage System TM – Final 2.9.a.19 Roof Expansion Joints TM – Draft 2.9.a.20 Roof Expansion Joints TM – Final 2.9.a.21 Facility Plan Report– Draft 2.9.a.22 Facility Plan Report– Final
Task 2.9.b Facility Plan Workshops
The Design Engineer shall host the necessary number of technical workshops to review key engineering findings, discuss alternatives and solicit feedback from DEP, as necessary, to advance preparation of the Facility Plan. The Design Engineer shall define the number of and purpose of workshops in the Project Management Plan commensurate with the communication and coordination needs of the Project. Deliverables: 2.7.b.1 Caissons TM Workshop 2.7.b.2 Underdeck Membrane and Concrete Underdeck TM Workshop 2.7.b.3 Ice Breaker and Perimeter Fencing TM Workshop 2.7.b.4 Sludge Barge Loading Dock TM Workshop 2.7.b.5 Concrete and Rebar Deficiencies TM Workshop 2.7.b.6 Expansion Joints (Interior Structural Levels) TM Workshop 2.7.b.7 Plantwide Drain System TM Workshop 2.7.b.8 Roof Structural Member TM Workshop 2.7.b.9 Roof Drainage System TM Workshop 2.7.b.10 Roof Expansion Joints TM Workshop 2.7.b.11 Facility Plan Workshops
Task 2.10 Third Party Engineering Reviews Task 2.10.a Value Engineering The Design Engineer shall participate in a Value Engineering (“VE”) workshop with respect to the proposed concept plan as documented in the draft BODR (prior to sign-off) and supported by the Facility Plan Report. The VE process involves a five-day evaluation of the Project scope by a team of independent engineers and architects led by the City’s Office of Management and Budget (“OMB”). The Design Engineer shall prepare and provide the materials for the workshop (e.g., plans, specifications, cost estimates, design reports, etc.) to OMB and the VE team, and participate in the site visit, five one-day sessions, and an implementation meeting and work collaboratively with DEP to review the VE panel’s findings and develop a formal response to those findings. Deliverables:
2.10.a.1. VE Participation 2.10.a.2. VE Response Memorandum
Task 2.10.b Independent Technical Review Team – N/A 49 NR-STRUCT-DES RFP 12/14/2016 Task 2.11 Basis of Design Report and Workshop Task 2.11.a Basis of Design Report
Upon completion of the Facility Plan and agreement from DEP on the recommended alternatives, the Design Engineer shall prepare a BODR to succinctly define the agreed-upon Project scope, schedule, and budget as defined by the project delivery system. The BODR will not affect or modify any terms in this contract. In addition to the report sections identified in BEDC’s SOP 003, the BODR must address protection of critical equipment from floods or other risks.
After Facility Planning workshops and incorporation of comments, the Design Engineer shall sign and transmit the final BODR to BEDC for review and approval. Upon approval, BEDC shall in turn transmit the BODR to the Operating Bureau for its review and signature. The BODR will be accepted by DEP once all comments from DEP are incorporated and named Project stakeholders provide their respective signatures. Upon completion of the BODR, DEP and the Design Engineer may review the remaining Design, Construction Procurement, Construction, and Closeout Phase services. If the Commissioner determines that it is necessary to modify this contract based on the contents of the BODR, the parties may enter into an amendment to this contract.
Deliverables:
2.11.a.1 BODR - Draft 2.11.a.2 BODR - Final
Task 2.11.b BODR Workshops
The Design Engineer shall conduct the following workshops to facilitate review of design progress by stakeholders and respond to DEP comments. DEP may direct the Design Engineer to conduct additional workshops necessary to review specific critical issues that are raised by stakeholder review. The Design Engineer shall identify additional workshops as necessary to meet Project objectives and goals, as identified in the PMP.
1. BODR Workshop: The Design Engineer shall conduct a BODR workshop to review the draft BODR and solicit feedback.
2. Sustainability Workshop: The Design Engineer shall conduct a “Preliminary Sustainability Workshop” to identify the primary sustainability elements that will be incorporated into the Project. These sustainability elements may include energy and carbon analysis, climate change resiliency, waste management, building material selection, storm water management and landscaping. All design changes from the workshop shall be incorporated into the BODR.
3. EHS Workshop: The Design Engineer shall conduct an EHS “Deep Dive during Facility Planning” workshop to identify the primary EHS elements that will be incorporated into the Project and identify design alternatives to reduce risk. EHS issues (e.g., arc flash, guarding, clearances, etc.) with existing and proposed equipment within the scope of the project shall be discussed and evaluated in this workshop
50 NR-STRUCT-DES RFP 12/14/2016 4. Permit Identification & Regulatory Agency Workshops: The Design Engineer shall conduct a permit identification workshop with PRD to review the permit list and ensure completeness. The Design Engineer shall also conduct various workshops (a minimum of two (2)) with Local, State, and Federal authorities as necessary to acquire the necessary permits for the investigative design and construction work.
5. Public Design Commission (“PDC”) Conceptual Review Workshop: The Consultant shall prepare materials to meet the PDC requirements and conduct a workshop to review the BODR submission. All design changes from the workshop shall be incorporated into the BODR.
Deliverables: 2.9.b.1 BODR Workshop (including meeting minutes) 2.9.b.2 Preliminary Sustainability Workshop submittals 2.9.b.3 EHS Workshop (including meeting minutes) 2.9.b.4 Permit Identification and Regulatory Agencies Workshops (including meeting minutes) 2.9.b.5 PDC Workshop and associated submittals.
TASK 3. DESIGN PHASE SERVICES
The Design Engineer shall prepare high quality construction contract documents that meet DEP’s expressed requirements and all regulatory requirements, with the goal of meeting Project scope as defined by the approved BODR and minimizing construction contract change orders. During the Design Phase, the Design Engineer shall implement sound principles of Project delivery, including all Project Management Plan (“PMP”) requirements.
It is the intent that the Design Engineer will provide design documents for the following construction contracts:
1) North River WWTP Underdeck Structural Improvements, Repairs, and Rehabilitation 2) North River WWTP Interior Structural Improvements, Repairs, and Rehabilitation (Up to three (3) construction contracts) 3) North River WWTP Plantwide Drainage System Replacement 4) North River WWTP Roof Deck and Drainage Improvements and Repairs (Up to three (3) construction contracts)
A “Wrap-Up” Construction Contract may also be necessary if it is determined to be in the best interest of the City during the execution of the construction contracts that will result from this solicitation.
Task 3 requirements mentioned below are required for each of the individual construction contracts, as applicable.
Task 3.1 Project Management
51 NR-STRUCT-DES RFP 12/14/2016 (See Task 1) The Design Engineer shall include in this task, all Project Management Services efforts that will occur in the Design Phase. As part of these services, the PMPs developed during the Facility Planning Phase must be updated as necessary.
Task 3.2 Quality Assurance and Control The Design Engineer shall perform all quality reviews as identified in the approved Project QMP and consistent with the DQMM. The Design Engineer must review all work products and deliverables provided by itself and all subcontractors; and document its review prior to submission to DEP. Documentation of all reviews must be provided with each submission.
Deliverables:
3.2.1 QA/QC Review 30% Design 3.2.2 QA/QC Review 60% Design 3.2.3 QA/QC Review 90% Design 3.2.4 QA/QC Review 100% Design
Task 3.3 Risk Management The Design Engineer shall review and update the approved risk management plan for the Design Phase of the Project. The Design Engineer shall continue to implement a risk management program consistent with the approved risk management plan, including continuous maintenance of the risk register, hosting of risk identification and mitigation workshops, and incorporation of identified risks into the Project schedule and budget. The risk register will be reviewed at each monthly progress meeting and updated immediately as new risks are identified. During the Design Phase, the Design Engineer shall conduct risk workshops on a frequency consistent with the Project’s complexity; however, the risk workshops will be held every quarter at a minimum. The risk workshop will be scheduled to coincide with the date of a regular monthly progress meeting.
Deliverables:
3.3.1 Design Phase Risk Management Plan 3.3.2 Risk Identification and Mitigation Workshop 1 through 12
Task 3.4 Permit Management
The Design Engineer shall familiarize itself with the permit requirements necessary to deliver the Project, with the support of PRD. The Design Engineer shall prepare all permit applications and associated material to support DEP in securing the requisite permits in a timely manner so as not to impact the Project schedule. In addition to permit application preparation, the Design Engineer shall also perform the following coordination activities with PRD:
a. update the Regulatory Compliance Management Plan at the initiation of the Design Phase of the Project to establish the regulatory compliance roles, responsibilities, and strategy for permit compliance, as outlined in the project delivery system;
b. compile a permit checklist to ensure that all requisite permits have been identified based on the Project scope; and
52 NR-STRUCT-DES RFP 12/14/2016 c. submit monthly updates to the Permit Tracking Database (“PTD”) to report on status of all permit applications.
Deliverables:
3.4.1 Permit applications 3.4.2 Regulatory Compliance Transition Plan 3.4.3 Permit Identification Checklist 3.4.4 Permit Tracking Database Monthly Updates through Design
Task 3.5 Public Design Commission (“PDC”) Approval - N/A
Task 3.6 Uniform Land Use Review Procedure (“ULURP”) – N/A
Task 3.7 Easement/Site Acquisition The Design Engineer shall conduct investigations and provide technical support as requested by DEP in connection with obtaining temporary or permanent easements or acquiring any real property necessary to facilitate construction while on the Riverbank State Park property. These easements must be coordinated with New York State Office of Parks, Recreation, and Historical Preservation, to ensure continuous service for the public at the Riverbank State Park. Services related to this Subtask include, but are not limited to, conducting hazards investigations, surveying, drafting survey descriptions, preparing maps, and conducting property value assessments.
Task 3.8 City Environmental Quality Review (“CEQR”) Environmental Assessment Statement (“EAS”) As part of the CEQR process, the Design Engineer shall prepare an environmental impact assessment in accordance with the provisions of SEQRA and CEQR. The Design Engineer shall conduct, as necessary, a review of impacts, including, but not limited to, a review of the following documents: (a) erosion and sedimentation control plans; (b) landscape plans and specifications; (c) wildlife, aquatic and wetland assessments; and (d) documents relevant to the concerns of the NYS Historic Preservation Office (a historical and archeological assessment). The Design Engineer shall develop all assessments and mitigation information in consultation with DEP’s Bureau of Environmental Planning and Analysis (“BEPA”). The Design Engineer shall complete all of the requirements associated with the above and/or any other environmental review items that could prevent or hinder the completion of the Project. The Design Engineer shall provide personnel with technical expertise sufficient to undertake necessary studies required for the completion of the environmental review as directed by DEP. Examples of studies that may be necessary include, without limitation: traffic, noise, air quality, wetland delineation and evaluation, hazardous materials investigations (including Phase I and II Environmental Site Assessments, if required), archaeological and historic resource evaluations, wildlife habitat, and any additional environmental soil sampling to support the initial evaluation of soil reuse. The Design Engineer shall provide staff with the technical expertise necessary to assess, design, and evaluate potential mitigation measures, if necessary.
Deliverables:
3.8.1 CEQR Type II Determination Documents 3.8.2 BEPA Review Meeting 53 NR-STRUCT-DES RFP 12/14/2016
Task 3.9 Technical Investigations and Reports The Design Engineer shall conduct technical investigations and document findings as described below to support the construction contract documents.
Task 3.9.a Final Geotechnical Investigations, Data Report and Interpretive Report
The Design Engineer shall conduct all geotechnical investigatory services necessary to define the underground conditions necessary to advance the engineering design of the Project. The Design Engineer shall describe the results of the investigatory services in a Geotechnical Data Report and a Geotechnical Interpretive Report. This should build off the prepared existing conditions report and provide further analysis on the findings through underwater investigations.
Task 3.9.b Subsurface Investigations in Support of Soil and Groundwater Management – N/A
Task 3.9.c Traffic Control Report
The Design Engineer shall conduct traffic studies as necessary to assess existing conditions, quantify traffic impacts of the Project, and prepare a recommended traffic control plan for inclusion in the construction contract documents and to address environmental and other regulatory compliance requirements.
Task 3.9.d Acoustical Control Report
The Design Engineer shall conduct all acoustical studies necessary and prepare a recommendations report of acoustic mitigation measures for incorporation into the construction contract document. The mitigations measures will be to protect public health and avoid community nuisance in accordance with the requirements of all regulatory authorities having jurisdiction.
Task 3.9.e Hazardous Materials Investigation and Mitigation Report
The Design Engineer shall supplement the Preliminary Hazards Inventory conducted during the Facility Planning Phase with additional hazardous materials investigations, sampling, and testing to further identify the known and suspect hazardous materials being removed or significantly impacted by the construction. The hazardous materials investigation, sampling, and testing shall be performed in accordance with a Hazardous Materials Sampling Plan developed after the 30% design scope freeze, with approval from BEDC EHS and the Operating Bureau.
The Design Engineer shall prepare a draft Hazardous Materials Investigation and Mitigation Report based on the hazardous materials investigation, sampling, and testing performed after the 30% scope freeze. Mitigation requirements shall be incorporated into the 60% design, and subsequent design deliverables. The draft Hazardous Materials Investigation and Mitigation Report shall be submitted with the 60% design deliverables. The final Hazardous Materials Investigation and Mitigation Report shall be submitted with the 90% design deliverables to address further sampling conducted for additional construction scope identified after the 30% scope freeze.
Deliverables:
54 NR-STRUCT-DES RFP 12/14/2016 3.9.e.1 Hazard Mitigation Report – Draft 3.9.e.2 Hazard Mitigation Report – Final
Task 3.9.f Corrosion Control Report
The Design Engineer shall conduct investigations as necessary to determine the corrosivity of soils and the atmospheric corrosivity in operational areas, and to identify recommendations to minimize corrosion of underground utilities, the foundation, and other infrastructure.
Deliverables:
3.9.f.1 Corrosion Control Report – Draft 3.9.f.2 Corrosion Control Report – Final
Task 3.9.g Final Hydraulics Report – N/A
Task 3.9.h Design Phase Power Distribution Studies – N/A
Task 3.9.i Operational Impacts During Construction Report
The Design Engineer shall prepare a technical memorandum describing the impacts to the operation of the NR WWTP, including details of how to maintain operational reliability during construction. The memorandum will identify opportunities and construction staging options that will limit the shutdown time. The memorandum must also include a comprehensive construction schedule that highlights all necessary involved entities, shutdowns, switchovers, and other operational coordination activities. An initial draft of the memorandum shall be submitted during the 30% design development. The Design Engineer shall collaborate with DEP operations staff to develop the technical memorandum. The Design Engineer shall conduct an operational impact during construction workshop to review and finalize the technical memorandum for incorporation into the 30% design deliverable. The memorandum shall be reviewed and workshops held for each subsequent design phase submittal.
Deliverables:
3.9.i.1 Operational Impacts during Construction Report 30% Design - Draft 3.9.i.2 Operational Impacts during Construction Report 30% Design– Final 3.9.i.3 Operational Impacts during Construction Report 60% Design- Draft 3.9.i.4 Operational Impacts during Construction Report 60% Design- Final 3.9.i.5 Operational Impacts during Construction Report 90% Design - Draft 3.9.i.6 Operational Impacts during Construction Report 90% Design - Final
Task 3.9.j Other Technical Reports N/A
Task 3.10 Third Party Engineering Reviews Task 3.10.a. Value Engineering
The Design Engineer shall participate in a VE workshop with respect to the proposed concept plan as documented in the draft thirty percent (30%) design document deliverable. The VE process 55 NR-STRUCT-DES RFP 12/14/2016 involves a five-day evaluation of the Project scope by a team of independent engineers and architects led by the City’s Office of Management and Budget (“OMB”). The Design Engineer shall prepare and provide the materials for the workshop (e.g., plans, specifications, cost estimates, design reports) to OMB and the VE team, and participate in the site visit, five one-day sessions, and an implementation meeting and work collaboratively with DEP to review the VE panel’s findings and develop a formal response to those findings.
Task 3.10.b. Constructability and Biddability Reviews
The Design Engineer shall participate in constructability and biddability workshops with respect to the draft 60% and 90% design submittals. The Design Engineer shall prepare and provide materials to the review teams, participate in the site visit, and work collaboratively with DEP to review the findings. All comments will be logged on a tracking sheet and the Design Engineer shall work collaboratively with DEP to resolve all comments and incorporate changes as required.
Task 3.10.c. Independent Technical Review Team – N/A Task 3.11 30% Design Task 3.11.a. 30% Design Construction Contract Documents
The Design Engineer will develop construction contract documents that meet regulatory and legal requirements including, but not limited to the New York State Wicks Law, if applicable, with a focus on minimizing construction contract change orders during the construction phase of the Project. If a project labor agreement (“PLA”) covering the Project is in place at the time of design, construction contract documents will be prepared for a single prime contractor. Comments received from stakeholders on each deliverable shall be logged and tracked by the Design Engineer. All comments shall be addressed and “closed out” to the satisfaction of DEP. The Design Engineer will develop the design documents in accordance with BEDC’s project delivery system and procedures.
The 30% design deliverables must include drawings and key specifications that represent all of the major Project concepts, and must provide the necessary review, validation, and vetting of the scope items and concepts identified in the BODR. The 30% design reflects the fundamental design elements that will be incorporated into the final design. The content requirements of the 30% submittal reflect the key elements necessary to implement a Project “scope freeze.”
The 30% design deliverables include the following:
a. a draft list of the final drawings and specifications and corresponding table of contents; b. design drawings (civil, architectural, basic plan and profile, electrical, HVAC, and structural disciplines); c. draft specifications for major items (i.e., major equipment, pipe, concrete) d. identification of major equipment recommended to be sole-sourced and justification; e. final draft process control logic narratives (or functional descriptions of strategies); f. final hazard mitigation: final geotechnical/underwater investigation, hazard mitigation, acoustical, corrosion control reports as required by the Project; g. an American Association of Civil Engineers Class III engineer’s opinion of probable construction cost and basis of estimate report 56 NR-STRUCT-DES RFP 12/14/2016 h. an updated Critical Path Method (“CPM”) construction schedule and basis of schedule report; and i. further developed 3D/4D model initiated in the Facility Planning Phase. Design elements for the new or modified facilities will be included in the 3D/4D model and tied to the updated construction schedule. The model shall include interior, and exterior of the North River WWTP and 2D drawings shall be derived from the 3D/4D model.
Task 3.11.b. Sustainability
The Design Engineer shall submit a sustainability management plan in accordance with DEP’s project delivery system and BEDC’s sustainability policy for approval by DEP. Upon DEP’s approval, the Design Engineer will implement the approved plan. During the Design Phase, the Design Engineer shall address the Project’s major sustainability aspects including, but not limited to: water use, energy use, carbon footprint, climate change resiliency, renewable energy, materials and waste. The design shall be verified through an approved third-party green building standard to assess triple bottom line criteria as defined by NYC Local Laws 31 of 2016 and 32 of 2016. Selection of either the US Green Buildings Council’s LEED program or the Institute for Sustainable Infrastructure’s Envision Program will be based on project scope and be approved by the BEDC Sustainability Section.to obtain an Envision TM rating, level “gold” from the Institute for Sustainable Infrastructure.
Task 3.11.c. 30% Design Workshops
The Design Engineer shall conduct the following workshops to facilitate review by stakeholders of design progress and respond to DEP comments. DEP may instruct the Design Engineer to conduct additional workshops as necessary to review specific critical issues that require stakeholder review. The Design Engineer shall identify additional workshops necessary to meet Project objectives and goals, as identified in the PMP.
At the completion of the 30% design documents, the Design Engineer shall conduct 30% design workshops, which will consist of the following:
a. a full day 30% design presentation workshop, where components of the Project scope, schedule, and budget are presented to DEP. The Design Engineer shall be responsible for noting comments provided during the meeting and preparing responses;
b. a 30% submission comments review workshop;
c. a permit identification workshop with PRD to review the permit list and ensure completeness;
d. a scope freeze workshop with DEP’s operating bureaus and stakeholders;
e. a workshop addressing operational impacts, coordination requirements, and maintenance of operations;
57 NR-STRUCT-DES RFP 12/14/2016 f. a sustainability workshop to review how sustainable design elements have been incorporated into the Project’s scope and solicit feedback from DEP’s sustainability panel;
g. a 3D/4D model presentation to operations personnel and key stakeholders; and
Task 3.12 60% Design
Task 3.12.a 60% Design Construction Contract Documents
The 60% design consists of a progress set of drawings and specifications between the 30% and 90% designs. The 60% design deliverables include the following:
a. Design drawings completed to the extent required by the BEDC DQMM (e.g., advanced or finished instrumentation, civil, mechanical, and architectural drawings; plan and profile drawings; structural, HVAC, electrical, and plumbing drawings) separated by building trade. The design drawings must be provided in CAD format compatible with DEP’s CAD system. Drawings and specifications must include, without limitation:
i. site drawings including existing site layout and demolition plans, staging and mobilization plans, a revised site layout, a final site layout, and a landscaping plan;
ii. structural drawings, including a site layout and plan, a pile layout with pile cut-off elevations, structural building plans, and details including concrete dimensional drawings, reinforcement bar beading schedules, beam schedules, structural steel framing plans, and structural steel and structural member schedules;
iii. architectural drawings, including architectural details and layouts, including applicable door, louver, and window schedules and details;
iv. draft final construction contract specifications including all applicable detailed and general specifications for all divisions;
v. a final traffic control and operational impacts report;
vi. a final traffic control and operational impacts report;
vii. updated Hazardous Materials Investigation and Mitigation Report
viii. an AACE Class II engineer’s opinion of probable construction cost and basis of estimate report; and
ix. a final draft CPM construction schedule and basis of schedule report reflecting activities, sequencing, maintenance of operations, and activity durations.
Task 3.12.b EHS Design Requirements
The Design Engineer will design in accordance with all local, state and federal EHS laws, rules and regulations and will implement BEDC’s project delivery system Prevention Through Design Guidelines to eliminate and minimize hazards to operations and construction. 58 NR-STRUCT-DES RFP 12/14/2016 a. Review, conduct, or update studies necessary to ensure that all equipment complies with EHS requirements set forth by the Occupational Safety and Health Administration (“OSHA”), Environmental Protection Agency (“EPA”), or any other applicable requirements.
b. Identify equipment requiring arc flash studies and labeling and specifying installation of arc flash labeling in the construction contract documents.
c. Identify equipment requiring Energy Control Procedures (“ECP”) for development under Task 5.3.
Task 3.12.c 60% Design Coordination Workshops
The Design Engineer shall conduct the following design workshops to facilitate review by stakeholders of design progress and respond to DEP comments. DEP may instruct the Design Engineer to conduct additional workshops necessary to review specific critical issues that require stakeholder review. The Design Engineer shall identify additional workshops necessary to meet Project objectives and goals, as identified in the PMP.
At of the completion of the 60% design documents, the Design Engineer shall conduct 60% design workshops. The 60% design workshops will consist of the following:
a. a 60% design presentation workshop where the Design Engineer shall present the advances since the 30% design scope freeze, highlighting areas that require decision from DEP;
b. a 3D/4D model presentation to DEP operating bureau’s personnel and stakeholders;
c. a comments review workshop;
d. an operational impacts, coordination requirements, and maintenance of operations workshop;
e. an EHS deep dive workshop, during which the Design Engineer shall present their implementation of the Prevention Through Design Guidelines:
i. review risks related to construction means and methods, considering input from the operating bureau’s staff during and after construction; and
ii. solicit feedback from DEP’s and the operating bureau’s EHS staff; and
f. a CPM schedule workshop during which the Design Engineer shall present the planned construction CPM schedule to BEDC’s Schedule Controls Group to solicit feedback regarding activities, sequencing, maintenance of operations, and activity durations.
Task 3.13 90% Design
59 NR-STRUCT-DES RFP 12/14/2016 Task 3.13.a 90% Design Construction Contract Documents
The 90% design must consist of the Design Engineer’s completed drawings and specifications including resolution and incorporation of all comments submitted during the 30% and 60% design reviews.
The 90% design deliverables include the following:
a. final draft design drawings (all sheets for all disciplines)
b. Identify equipment requiring arc flash studies and labeling and specifying installation of arc flash labeling in the construction contract documents;
c. final draft construction contract specifications for all divisions (ready for submission to DEP’s legal counsel for review and approval);
d. final calculations for all Project elements;
e. final Hazardous Materials Investigation and Mitigation Report requirements for construction;
f. final power reports
g. a final list of equipment to be shop witness-tested;
h. a final list of equipment to be submitted as part of the construction contractor’s bid;
i. a final AACE Class I engineer’s opinion of probable construction cost and basis of estimate report for each project site;
j. a final CPM construction schedule and basis of schedule report;
k. a construction submittals log; and
l. a technical memorandum on operational impacts during construction.
Task 3.13.b 90% Design Coordination Workshops
At or around the time of the 90% design completion, the Design Engineer shall participate in:
a. a 90% design presentation workshop where the Design Engineer shall present the advances since 60% design, highlighting areas that require decision from DEP; b. a final CPM schedule workshop during which the Design Engineer shall present the planned construction CPM schedule to BEDC’s Schedule Controls Group to solicit feedback regarding activities, sequencing, maintenance of operations, and activity durations; c. a 3D/4D presentation to DEP operating bureau’s personnel and stakeholders; and d. a comments review workshop.
Task 3.14 100% Design
60 NR-STRUCT-DES RFP 12/14/2016 The Design Engineer shall submit a set of 100% design construction contract documents to DEP consisting of all drawings and specification sections, and supporting technical reports (e.g., final Hazardous Materials Investigation and Mitigation Report, Geotechnical Investigation Report, Subsurface Investigation Report, etc.) necessary for a complete construction bid package. All DEP, Corporation Counsel, and other stakeholder comments must be addressed in this set and all disagreements and open issues must be resolved prior to submittal. When directed, the Design Engineer shall furnish thirty sets of documents. Final biddable documents representing 100% completion shall be delivered to DEP. DEP’s acceptance of the 100% complete design documents will represent the conclusion of the design phase of the Project.
TASK 4. CONSTRUCTION PROCUREMENT PHASE SERVICES
It is the intent that the Design Engineer will complete all necessary construction procurement phase services for each of the following construction contracts:
1) North River WWTP Underdeck Structural Improvements, Repairs, and Rehabilitation 2) North River WWTP Interior Structural Improvements, Repairs, and Rehabilitation (Up to three (3) construction contracts) 3) North River WWTP Plantwide Drainage System Replacement 4) North River WWTP Roof Deck and Drainage Improvements and Repairs (Up to three (3) construction contracts)
A “Wrap-Up” Construction Contract may also be necessary if it is determined to be in the best interest of the City during the execution of the construction contracts that will result from this solicitation.
Task 4 requirements mentioned below are required for each of the individual construction contracts, as applicable.
Task 4. 1. Project Management (See Task 1) The Design Engineer shall include in this task, all Project Management Services efforts that will occur in the construction procurement phase. Prior to the construction contractor’s Order to Commence Work (“OTCW”), the Design Engineer shall prepare the draft and final plans identified in Task 1 to clearly identify how all aspects of the design services shall be executed during the construction phase. The Design Engineer is expected to coordinate with the Construction Manager (“CM”) and work with the CM to provide a seamless transition and coordinated effort.
Task 4. 2. Design Engineer Construction Procurement Phase Services Task 4.2.a Pre-Bid Conference
The Design Engineer shall cause a representative to participate in the pre-bid conference and construction contract site visit and be available to answer questions, as necessary.
Deliverables:
4.2.a.1 Pre-Bid conference presentation – Draft 4.2.a.2 Pre-Bid conference presentation – Final 4.2.a.3 Pre-Bid conference participation (including agenda and minutes) 61 NR-STRUCT-DES RFP 12/14/2016
Task 4.2.b Addendum Preparation
The Design Engineer shall assist DEP with preparation of responses to all questions from prospective bidders requiring clarification or correction of the construction contract plans and specifications. Response to all questions shall be made concurrently with the issuance of addenda by DEP. Changes to the contract documents, as required, whether to support the responses to the questions or corrections or modifications due to errors or omissions shall be made by the issuance of addenda. The Design Engineer shall also assist DEP with developing, printing, and distributing all required addenda. The Design Engineer shall be responsible for all costs associated with addenda preparation due to errors or omissions in the construction contract Documents.
Deliverables:
4.2.b.1 Addenda (as required)
Task 4.2.c Bid Evaluation
Upon DEP’s opening of the bids for each construction contract, the Design Engineer will assist DEP in evaluating the bids to determine if the bids are reasonable and complete. The bid evaluation will include a determination regarding whether the unit cost items of the apparent low bidder have been bid appropriately, a determination of whether the bid is balanced, and a review to confirm the apparent low bidder’s capabilities to perform the contract work. The Design Engineer shall participate in a pre-award meeting as may be required to review the bid evaluation and address any potential issues that may arise.
Deliverables:
4.2.c.1 Bid evaluation letter for one contract 4.2.c.2 Pre-award meeting with ACCO participation 4.2.c.3 Pre-award meeting with ACCO, BEDC and Contractor participation
Task 4.2.d Evaluation of Construction Contractor Proposed Substitutions
The Design Engineer shall review any requested substitution of an “or equal” for the product of a named vendor submitted as part of the apparent low bidder’s bid. Upon submission of a complete substitution request package as defined in the construction contract documents, the Design Engineer shall evaluate the proposed substitution against the requirements in the construction contract documents and advise the Accountable Manager as referenced in BEDC SOP 210 (Manufacturers Approval).
Deliverables:
4.2.d.1 Letter recommending acceptance or rejection of proposed substitutions
Task 4.2.e Conformed Construction Specifications and Drawings
Upon conclusion of the bid period, the Design Engineer shall incorporate all modifications from any addenda into a conformed copy of the construction contract documents. All changes will be
62 NR-STRUCT-DES RFP 12/14/2016 marked in the construction contract documents with a notation of the source of the change. The resulting set of documents will be known as the “conformed set.” The Design Engineer shall provide up to ten (10) paper and electronic copies of the “conformed set”
Deliverables:
4.2.e.1 Conformed drawings in PDF and CAD format for distribution by DEP
Task 4.2 f Submittal Log Reconciliation
The Design Engineer shall meet with the CM prior to registration of the construction contract and reconcile each entity’s version of the Submittal Log. The Design Engineer will participate in a meeting with DEP to review the reconciled Submittal Log.
Deliverables:
4.2.f.1 Submittal Log Reconciliation Meeting
Task 4. 3. Permit Management The Design Engineer shall continue to advance preparation and approvals of permits not secured during the design phase and facilitate the transition of the regulatory Permit Management Plan to the CM for the Project.
Deliverables:
4.3.1 Permit Management Transition to CM Plan 4.3.2 Permit Applications
TASK 5. CONSTRUCTION PHASE SERVICES
Once construction begins, the Design Engineer shall provide design-related services throughout the active construction period for each of the following construction contracts:
1) North River WWTP Underdeck Structural Improvements, Repairs, and Rehabilitation 2) North River WWTP Interior Structural Improvements, Repairs, and Rehabilitation (Up to three (3) construction contracts) 3) North River WWTP Plantwide Drainage System Replacement 4) North River WWTP Roof Deck and Drainage Improvements and Repairs (Up to three (3) construction contracts)
The Design Engineer may also be required to provide design-related services for a “Wrap-Up” Contract if one will be developed by the Design Engineer.
The Design Engineer must clearly understand each construction schedule including recently completed work and upcoming planned work. The Design Engineer will work closely and collaboratively with DEP and construction management staff to ensure coordination of critical engineering information throughout the construction of each contract.
Task 5.1. Project Management
63 NR-STRUCT-DES RFP 12/14/2016 (See Task 1) The Design Engineer shall include in this task, all Project Management Services efforts that will occur in the Construction Phase.
Task 5.2. Quality Assurance/Quality Control The Design Engineer shall perform all quality reviews as identified in the approved Project QMP.
Task 5.3. Design Services During Construction Task 5.3.a Attend Pre-Construction Conference
The Design Engineer shall cause a representative to participate in the pre-construction conference and be available to answer questions, as necessary.
Task 5.3.b Partnering
The Design Engineer shall cause a representative to participate in half-day quarterly partnering sessions for the duration of construction phase and complete assignments as dictated by the process. The Design Engineer shall make available its Project Manager and DSDC Liaison for the partnering meetings.
Task 5.3.c Construction Progress Meetings
The Design Engineer shall cause a representative to participate at construction progress meetings to support coordination with the Project stakeholders. The Design Engineer shall be prepared to discuss status of all deliverables (submittals, RFIs, construction contract change orders, etc.) and support timely resolution of design-related issues that may impact the Project budget or schedule.
Task 5.3.d Site Representation
The Design Engineer shall cause a representative to conduct periodic site visits to ensure that the work is progressing in accordance with the contract documents and design intent. Visits shall occur no less frequently than monthly and appropriate technical expertise shall be provided based on the work. Additionally, the Design Engineer shall cause employees who have the appropriate technical expertise to be on-site during identified “high-risk” work that would benefit from additional visual observation by a technically proficient engineer. All high-risk work must be identified by the Design Engineer and the Design Engineer shall transmit notice to DEP. The Design Engineer staff shall prepare notes after each site visit. These notes shall be transmitted to DEP and CM within 3 days of the site visit and must include observations regarding the quality of progressed work and identify any aspects of the work that require closer oversight attention or upcoming work that requires specific instruction.
Task 5.3.e Risk Management
The Design Engineer shall transition the management of the risk register to the CM staff. The Design Engineer shall continue to participate in the development of risk workshops and communication of upcoming potential risks and recommended risk mitigation measures.
64 NR-STRUCT-DES RFP 12/14/2016 Task 5.3.f Review of Construction Contractor Submittals
The Design Engineer shall manage all submittals and transmittals including, but not limited to, shop drawings, RFIs, letters, non-conformance reports (“NCRs”), concrete records, substitution and deviation requests (“RFDs”). All submittal reviews shall be in accordance with BEDC’s project delivery system. Submittal management includes review of documents, preparation of responses, and coordination of technical information.
The Design Engineer shall review all submittals submitted by the construction contractor to ensure compliance with the construction contract documents. The target turnaround time (metric) is 14 consecutive calendar days (“CCDs”). The Design Engineer shall notify DEP if the third round submittal cannot be given “furnish as submitted” or “furnish as corrected” status. The notice shall identify the reason. If the Design Engineer identifies problems with the quality of the submittals, the Design Engineer shall bring such issues to the attention of DEP so that DEP can take corrective action with the construction contractor.
Task 5.3.g Evaluation of Construction Contractor-Initiated Deviations
The Design Engineer shall evaluate requests for construction contractor-initiated deviations (“RFDs”). Each evaluation shall consider compliance with design objectives, cost, and technical feasibility. If, after a review of the Design Engineer’s evaluation, a deviation is considered acceptable by DEP, the Design Engineer shall prepare a cost estimate for DEP. The Design Engineer shall respond to all deviation requests within 14 CCDs after the date of transmission of the RFD from DEP to the Design Engineer.
Task 5.3.h Evaluation of Value Engineering Submissions
The construction contractor may propose cost savings concepts that meet the intent of the contract in accordance with the construction contract specifications. After initial review of such a value engineering (“VE”) submission, DEP may direct the Design Engineer to evaluate the submission considering compliance with design objectives, cost, and technical feasibility. The Design Engineer shall evaluate VE concepts no later than 14 CCDs after the date of receipt from DEP. If the concept is accepted by DEP, the Design Engineer shall prepare a change order to the construction contract.
Task 5.3.i Shop Witness Testing – N/A
Task 5.3.j Requests for Information (“RFIs”)
The Design Engineer shall evaluate and respond to each RFI within 14 CCDs of receipt, unless an RFI involves a particularly complex issue requiring additional examination. The Design Engineer must notify DEP and construction manager within 3 CCDs of receipt of an RFI in the event a response will take more than 14 CCDs to prepare. Such notification shall include the rationale for the extended response time.
Task 5.3.k Preparation of Design-Related Construction Contract Change Orders
In the event of a contract change (non-material scope, administrative, or a field conditions change that requires Design Engineer input) to the construction contract, a construction contract change order must be processed. The Design Engineer shall evaluate and prepare all necessary design- related technical documents for construction contract change orders. For complex construction 65 NR-STRUCT-DES RFP 12/14/2016 contract change orders that benefit from collaboration prior to scope finalization, the Design Engineer shall participate in a scoping meeting with the CM and construction contractor. In some cases, the Design Engineer may be asked to support negotiation of the final construction contract change order between the CM and construction contractor.
For each construction contract change order the Design Engineer shall track all engineering costs (inclusive of design work and form preparation) in a separate change order-specific billing cost code. The Design Engineer shall be responsible for all costs associated with changes to the construction contract documents due to errors or omissions by the Design Engineer.
Task 5.3.l Energy Control Procedures and OSHA CFR 29 1910 Review– N/A
Task 5.3.m Operator Training Support – N/A
Task 5.3.n Start-Up and Testing Services – N/A
Task 5.3.o Operation and Maintenance Manuals – N/A
Task 5.3.p Final Copy Working Drawings
The Design Engineer shall review comments on the Final Copy Working Drawings (“FCWDs”) from the construction contractor for conformance and compliance with the construction contract documents (including all issued construction contract change orders). If the Design Engineer identifies problems with the quality of the FCWDs and the second round submittal cannot be approved, the Design Engineer shall bring such issues to the attention of DEP for corrective action with the construction contractor.
TASK 6 CONSTRUCTION CLOSE-OUT
The Design Engineer shall provide design-related services throughout the close-out construction period for each of the following construction contracts:
1) North River WWTP Underdeck Structural Improvements, Repairs, and Rehabilitation 2) North River WWTP Interior Structural Improvements, Repairs, and Rehabilitation (Up to three (3) construction contracts) 3) North River WWTP Plantwide Drainage System Replacement 4) North River WWTP Roof Deck and Drainage Improvements and Repairs (Up to three (3) construction contracts) 5)
The Design Engineer must clearly understand each construction schedules including recently completed work and upcoming planned work. The Design Engineer will work closely and collaborative with DEP and construction management staff to ensure coordination of critical engineering information throughout construction of each contract.
Task 6.1 Project Management (See Task 1) The Design Engineer shall include in this subtask, all Project Management Services efforts that will occur in the close-out phase.
66 NR-STRUCT-DES RFP 12/14/2016 Task 6.2 Close-out Administration The Design Engineer shall proactively manage all action items necessary to close-out the construction contract and assist in the issuance of the final payment to the construction contractor in a timely manner. The Design Engineer shall provide the necessary assistance to DEP and the CM in closing out the construction contract(s). Close-out action items include but are not limited to:
a. Assisting in preparation of closeout reports, including a list of all deliverables and tasks completed in accordance with the terms of the Design Engineer’s contract. The closeout report should include sections on Project background, contract summary, summary of change orders, contract duration, summary of project budget, contract status, and status of contract deliverables.
Task 6.3 Certificate of Completion/Occupancy Assistance
The Design Engineer shall assist DEP in obtaining certificates of completion/ occupancy from the permitting and regulatory authorities with jurisdiction, if required, at the completion of construction.
Task 6.4 Permit Management & Closeout
The Design Engineer shall provide support for the close-out of design-related permits required for the Project. The Design Engineer shall review the permit requirements with DEP and coordinate with the CM staff to gather information necessary to prepare close-out applications and submittals to complete any obligations under permit conditions.
67 NR-STRUCT-DES RFP 12/14/2016 ATTACHMENT G CORE PROGRAM PERFORMANCE STANDARDS NOT APPLICABLE
RFP TITLE: NR-STRUCT-DES - Design Services and Design Services During Construction for North River Wastewater Treatment Plant Structural Improvements Project PIN: 82617WP01396
68 NR-STRUCT-DES RFP 12/14/2016 ATTACHMENT H ENTERPRISE PROJECT MANAGEMENT INFORMATION SYSTEM (“e-PMIS”)
A) Web-Based Project Management Information System (“e-PMIS”)
The Consultant shall coordinate with DEP to rollout and administer DEP’s ePMIS. The ePMIS is a web-based software package that will be used for automated workflows, such as monthly reporting, inspector daily reports, submittals and construction contractor RFIs, and the management of documents and reporting. Representatives of DEP, the Consultant and the construction contractor(s) involved with the Project will use the ePMIS to facilitate communication and efficiency. The ePMIS is controlled by DEP, and DEP will provide overall project administration of the ePMIS. The Consultant shall cause a Project administrator to provide project administration support services, including ongoing training of the Consultant’s personnel and the construction contractor’s personnel. DEP shall provide ePMIS licenses to the Consultant and the construction contractors and pay all associated license fees.
This attachment contains: a list of ePMIS workflows; training that will be provided by DEP; the Consultant’s computer and internet networking resource requirements; the Consultant’s system performance requirements; and the Consultant’s tablet requirements (if applicable).
B) List of ePMIS Workflows
The following table lists the ePMIS workflow processes currently in the ePMIS system. This table is intended to give the Consultant an understanding of the scope of the ePMIS system and in no way constitutes a comprehensive list of all SOPs that DEP intends to manage through its ePMIS system. As the ePMIS is further developed, more workflows will be added and Consultant’s employees shall convert administration of those SOPs for DEP projects onto the ePMIS system.
Workflows Workflows Project Initiation Permit Management Process Risk Register EHS Incident Engineer's Estimate EHS Daily Report Monthly Report Workflow RFIs Preliminary Project Approval Shop Drawings / Submittal Review Scope Change Approval Inspector Daily Reports Baseline Project Approval Nonconformance Report Baseline Modification Approval Correspondence Project Information Changes Piping Installation (Above Ground) Consultant Invoices Piping Installation (Below Ground) Change Order Approval Concrete Placement Inspection Professional Services Contract Commitment Changes Issues 69 NR-STRUCT-DES RFP 12/14/2016 Subcontractor Evaluations Action Item Construction Partial Payment Request for Deviation
C) Training provided by DEP
DEP shall provide overall project administration of the ePMIS along with initial training and rollout services to the Consultant. The Consultant shall provide a Project administrator that will have limited project administration support responsibilities, including ongoing training of the Consultant’s and all relevant Subconsultants’ employees.
Training to be provided by DEP includes:
for consultant services performed prior to Construction Phase, one introduction session for two Consultant employees. If Consultant team has employees that have been previously received this training by DEP, this training will not be performed.
one Construction Management training session for Consultant team at initiation of Construction Phase.
one eight-hour Project administrator training for one employee (prerequisite: Introduction Training). If Consultant team has employees that have been previously received this training by DEP, this training will not be performed.
The Consultant is responsible for training the remainder of its team and shall not bill DEP for training. DEP shall provide job aids and training materials through its enterprise ePMIS.
D) The Consultant’s computer and internet networking resource requirements, system performance requirements, and tablet requirements
The Consultant shall provide to its employees and Subconsultants’ employees computers and internet networking resources that meet or exceed the minimum system requirements. As of the date of this Contract, current recommended and minimum system requirements for these computers are as follows:
The Computers must be Windows PCs less than three years old (recommended), less than five years old (mandatory). The Computers must use a Windows operating system not older than the Windows 7 Operating System. The Computers must use Microsoft Office 2013 (recommended) or Microsoft Office 2010 (minimum). The Computers must use one of the following web browsers: o Microsoft Internet Explorer 9 (recommended), Internet Explorer 8 (minimum); o current version of Google Chrome, v29 (minimum); o current version of Mozilla Firefox, v23 (minimum); or o current version of Apple Safari for Mac, Windows and IOS. The Computers must have access to 1.5 megabytes of internet bandwidth per concurrent e- PMIS user (recommended), four megabytes circuit download, one megabyte upload (minimum). 70 NR-STRUCT-DES RFP 12/14/2016
The Consultant shall provide tablets to its employees, and its Subconsultants’ employees, for use in the field to enter inspector daily reports and to access approved submittals and other information in the ePMIS. At a minimum, the Consultant shall obtain a sufficient number of tablets to equip all its employees and Subconsultants’ employees to engage in inspection activity on each given day. DEP is not required to compensate the Consultant for expenses associated with any of these tablets, computers, or network resources. The Consultant is not required to transfer these tablets to the Department or the construction contractor(s). DEP will provide its own personnel with tablets. Tablets supplied by the Consultant to its employees and Subconsultant’s employees are subject to the following requirements:
The tablets must operate using a current version of IOS (e.g., iPad or iPad Mini), Android (e.g., Samsung Tab) or Windows (e.g., Surface). Internet coverage must be available across the entire site via wireless or cellular (4G) connections.
Once implemented on the Projects, the Consultant’s computers, internet networking resources, and tablets must meet the e-PMIS performance standards, as modified by DEP. If the Consultant’s computers, internet networking resources, and tablets do not meet these performance standards, the Consultant shall make modifications or replacements to its computers, tablets, or internet network resources until the standards are met. The Consultant’s recommended and minimum performance standards are listed below.
File download speed. The Consultant’s computers, internet networking resources, and tablets must have the following capacity: o one second per megabyte of data recommended (e.g., 20 megabytes of file downloads in twenty seconds); and o five seconds per megabyte of data minimum (e.g., 20 megabytes of file download in 100 seconds). File upload speed. The Consultant’s computers, internet networking resources, and tablets must have the following capacity: one second per MB of data recommended (e.g., 20 megabytes of file uploads in 20 seconds); and five seconds per MB of data minimum (e.g., 20 megabytes of file uploads in 100 seconds).
71 NR-STRUCT-DES RFP 12/14/2016 ATTACHMENT I IRAN DIVESTMENT ACT COMPLIANCE RIDER
RFP TITLE: NR-STRUCT-DES - Design Services and Design Services During Construction for North River Wastewater Treatment Plant Structural Improvements Project PIN: 82617WP01396
SEE FOLLOWING PAGES
72 NR-STRUCT-DES RFP 12/14/2016 IRAN DIVESTMENT ACT COMPLIANCE RIDER FOR NEW YORK CITY CONTRACTORS
The Iran Divestment Act of 2012, effective as of April 12, 2012, is codified at State
Finance Law (“SFL”) §165-a and General Municipal Law (“GML”) §103-g. The Iran
Divestment Act, with certain exceptions, prohibits municipalities, including the City, from
entering into contracts with persons engaged in investment activities in the energy sector of
Iran. Pursuant to the terms set forth in SFL §165-a and GML §103-g, a person engages in
investment activities in the energy sector of Iran if:
(a) the person provides goods or services of twenty million dollars
or more in the energy sector of Iran, including a person that provides oil or
liquefied natural gas tankers, or products used to construct or maintain
pipelines used to transport oil or liquefied natural gas, for the energy sector
of Iran; or
(b) The person is a financial institution that extends twenty million
dollars or more in credit to another person, for forty-five days or more, if
that person will use the credit to provide goods or services in the energy
sector in Iran and is identified on a list created pursuant to paragraph (b) of
subdivision three of Section 165-a of the State Finance Law and maintained
by the Commissioner of the Office of General Services.
A bid or proposal shall not be considered for award nor shall any award be made where the bidder or proposer fails to submit a signed and verified bidder’s certification. Each bidder or proposer must certify that it is not on the list of entities engaged in investment activities in Iran created pursuant to paragraph (b) of subdivision 3 of Section
165-a of the State Finance Law. In any case where the bidder or proposer cannot certify that they are not on such list, the bidder or proposer shall so state and shall furnish with the bid or proposal a signed statement which sets forth in detail the reasons why such statement cannot be made. The City of New York may award a bid to a bidder who cannot make the certification on a case by case basis if:
(1) The investment activities in Iran were made before the effective date of this section (i.e., April 12, 2012), the investment activities in Iran have not been expanded or renewed after the effective date of this section and the person has adopted, publicized and is implementing a formal plan to cease the investment activities in Iran and to refrain from engaging in any new investments in Iran: or
(2) The City makes a determination that the goods or services are necessary for the City to perform its functions and that, absent such an exemption, the City would be unable to obtain the goods or services for which the contract is offered. Such determination shall be made in writing and shall be a public document.
- 2 - BIDDER’S CERTIFICATION OF COMPLIANCE WITH IRAN DIVESTMENT ACT
Pursuant to General Municipal Law §103-g, which generally prohibits the City from entering into contracts with persons engaged in investment activities in the energy sector of Iran, the bidder/proposer submits the following certification:
[Please Check One]
BIDDER’S CERTIFICATION
By submission of this bid or proposal, each bidder/proposer and each person signing on behalf of any bidder/proposer certifies, and in the case of a joint bid each party thereto certifies as to its own organization, under penalty of perjury, that to the best of its knowledge and belief, that each bidder/proposer is not on the list created pursuant to paragraph (b) of subdivision 3 of Section 165-a of the State Finance Law.
I am unable to certify that my name and the name of the bidder/proposer does not appear on the list created pursuant to paragraph (b) of subdivision 3 of Section 165-a of the State Finance Law. I have attached a signed statement setting forth in detail why I cannot so certify.
Dated: ______, New York ______, 20 __
SIGNATURE
PRINTED NAME
ITLE T Sworn to before me this day of , 20
Notary Public
Dated:
- 3 - ATTACHMENT J SUBCONTRACTING COMPLIANCE NOTICE
RFP TITLE: NR-STRUCT-DES - Design Services and Design Services During Construction for North River Wastewater Treatment Plant Structural Improvements Project PIN: 82617WP01396 SEE FOLLOWING PAGES
73 NR-STRUCT-DES RFP 12/14/2016 NOTICE TO BIDDERS
As of March 2013 the City has implemented a new web based subcontractor reporting system through the City's Payee Information Portal (PIP), available at www.nyc.gov/pip. In order to use the new system, a PIP account will be required. Detailed instructions on creating a PIP account and using the new system are also available at that site. Additional assistance with PIP may be received by emailing the Financial Information Services Agency Help Desk at [email protected].
In order to obtain subcontractor approval under section 3.02 of Appendix A or Article 17 of the Standard Construction Contract and PPB Rule § 4-13 Contractor is required to list the subcontractor in the system. For each subcontractor listed, Contractor is required to provide the following information: maximum contract value, description of subcontractor work, start and end date of the subcontract and identification of the subcontractor’s industry. Thereafter, Contractor will be required to report in the system the payments made to each subcontractor within 30 days of making the payment. If any of the required information changes throughout the term of the contract, Contractor will be required to revise the information in the system.
Failure of the Contractor to list a subcontractor and/or to report subcontractor payments in a timely fashion may result in the Agency declaring the Contractor in default of the Contract and will subject Contractor to liquidated damages in the amount of $100 per day for each day that the Contractor fails to identify a subcontractor along with the required information about the subcontractor and/or fails to report payments to a subcontractor, beyond the time frames set forth herein or in the notice from the City. For construction contracts, the provisions of Article 15 of the Standard Construction Contract shall govern the issue of liquidated damages.
Contractor hereby agrees to these provisions. ATTACHMENT K WHISTLEBLOWER PROTECTION EXPANSION ACT RIDER
RFP TITLE: NR-STRUCT-DES - Design Services and Design Services During Construction for North River Wastewater Treatment Plant Structural Improvements Project PIN: 82617WP01396
SEE FOLLOWING PAGES
74 NR-STRUCT-DES RFP 12/14/2016 NOTICE TO BIDDERS, PROPOSERS, CONTRACTORS, AND RENEWAL CONTRACTORS
This contract includes a provision concerning the protection of employees for whistleblowing activity, pursuant to New York City Local Law Nos. 30-2012 and 33-2012, effective October 18, 2012 and September 18, 2012, respectively. The provisions apply to contracts with a value in excess of $100,000.
Local Law No. 33-2012, the Whistleblower Protection Expansion Act (“WPEA”), prohibits a contractor or its subcontractor from taking an adverse personnel action against an employee or officer for whistleblower activity in connection with a City contract; requires that certain City contracts include a provision to that effect; and provides that a contractor or subcontractor may be subject to penalties and injunctive relief if a court finds that it retaliated in violation of the WPEA. The WPEA is codified at Section 12-113 of the New York City Administrative Code.
Local Law No. 30-2012 requires a contractor to prominently post information explaining how its employees can report allegations of fraud, false claims, criminality, or corruption in connection with a City contract to City officials and the rights and remedies afforded to employees for whistleblowing activity. Local Law No. 30-2012 is codified at Section 6-132 of the New York City Administrative Code.
1 WHISTLEBLOWER PROTECTION EXPANSION ACT RIDER
1. In accordance with Local Law Nos. 30-2012 and 33-2012, codified at sections 6- 132 and 12-113 of the New York City Administrative Code, respectively,
(a) Contractor shall not take an adverse personnel action with respect to an officer or employee in retaliation for such officer or employee making a report of information concerning conduct which such officer or employee knows or reasonably believes to involve corruption, criminal activity, conflict of interest, gross mismanagement or abuse of authority by any officer or employee relating to this Contract to (i) the Commissioner of the Department of Investigation, (ii) a member of the New York City Council, the Public Advocate, or the Comptroller, or (iii) the City Chief Procurement Officer, ACCO, Agency head, or Commissioner.
(b) If any of Contractor’s officers or employees believes that he or she has been the subject of an adverse personnel action in violation of subparagraph (a) of paragraph 1 of this rider, he or she shall be entitled to bring a cause of action against Contractor to recover all relief necessary to make him or her whole. Such relief may include but is not limited to: (i) an injunction to restrain continued retaliation, (ii) reinstatement to the position such employee would have had but for the retaliation or to an equivalent position, (iii) reinstatement of full fringe benefits and seniority rights, (iv) payment of two times back pay, plus interest, and (v) compensation for any special damages sustained as a result of the retaliation, including litigation costs and reasonable attorney’s fees.
(c) Contractor shall post a notice provided by the City in a prominent and accessible place on any site where work pursuant to the Contract is performed that contains information about:
(i) how its employees can report to the New York City Department of Investigation allegations of fraud, false claims, criminality or corruption arising out of or in connection with the Contract; and (ii) the rights and remedies afforded to its employees under New York City Administrative Code sections 7-805 (the New York City False Claims Act) and 12-113 (the Whistleblower Protection Expansion Act) for lawful acts taken in connection with the reporting of allegations of fraud, false claims, criminality or corruption in connection with the Contract.
(d) For the purposes of this rider, “adverse personnel action” includes dismissal, demotion, suspension, disciplinary action, negative performance evaluation, any action resulting in loss of staff, office space, equipment or other benefit, failure to appoint, failure to promote, or any transfer or assignment or failure to transfer or assign against the wishes of the affected officer or employee.
2
(e) This rider is applicable to all of Contractor’s subcontractors having subcontracts with a value in excess of $100,000; accordingly, Contractor shall include this rider in all subcontracts with a value a value in excess of $100,000.
2. Paragraph 1 is not applicable to this Contract if it is valued at $100,000 or less. Subparagraphs (a), (b), (d), and (e) of paragraph 1 are not applicable to this Contract if it was solicited pursuant to a finding of an emergency. Subparagraph (c) of paragraph 1 is neither applicable to this Contract if it was solicited prior to October 18, 2012 nor if it is a renewal of a contract executed prior to October 18, 2012.
3
ATTACHMENT L HIRING AND EMPLOYMENT RIDER-HIRENYC & REPORTING REQUIREMENTS
RFP TITLE: NR-STRUCT-DES - Design Services and Design Services During Construction for North River Wastewater Treatment Plant Structural Improvements Project PIN: 82617WP01396
75 NR-STRUCT-DES RFP 12/14/2016 HIRING AND EMPLOYMENT RIDER:
HIRENYC AND REPORTING REQUIREMENTS
Introduction
This Rider shall apply to all contracts for goods, services, and construction with a value of one million dollars ($1,000,000.00) or more, provided, however, that certain requirements of the Rider shall only apply as indicated below. This Rider addresses the HireNYC process, including reporting obligations under the HireNYC process, and certain other reporting requirements imposed by law. In general, the HireNYC process under this Rider requires the Contractor to enroll with the HireNYC portal for the City of New York (“the City”) found within the Department of Small Business Services’s (“SBS”) website, to disclose all entry to mid-level job opportunities described in this Rider arising from this contract and located in New York City, and to agree to interview qualified candidates from HireNYC for those opportunities.
HireNYC Requirements
A. Enrollment
The Contractor shall enroll with the HireNYC system, found at www.nyc.gov/sbs, within thirty (30) days after the registration of this Contract pursuant to Section 328 of the New York City Charter. The Contractor shall provide information about the business, designate a primary contact and say whether it intends to hire for any entry to mid-level job opportunities arising from this contract and located in New York City, and, if so, the approximate start date of the first hire.
B. Job Posting Requirements
Once enrolled in HireNYC, the Contractor agrees to update the HireNYC portal with all entry to mid-level job opportunities arising from this contract and located in New York City, if any, which shall be defined as jobs requiring no more than an associate degree, as provided by the New York State Department of Labor (see Column F of https://labor.ny.gov/stats/2012-2022- NYS-Employment-Prospects.xls). The information to be updated includes the types of entry and mid-level positions made available from the work arising from the contract and located in New York City, the number of positions, the anticipated schedule of initiating the hiring process for these positions, and the contact information for the Contractor’s representative charged with overseeing hiring. The Contractor must update the HireNYC portal with any hiring needs arising from the contract and located in New York City, and the requirements of the jobs to be filled, no less than three weeks prior to the intended first day of employment for each new position, except with the permission of SBS, not to be unreasonably withheld, and must also update the HireNYC portal as set forth below.
After enrollment through HireNYC and submission of relevant information, SBS will work with the Contractor to develop a recruitment plan which will outline the candidate screening process, and will provide clear instructions as to when, where, and how interviews will take place. HireNYC will screen applicants based on employer requirements and refer applicants whom it believes are qualified to the Contractor for interviews. The Contractor must interview referred applicants whom it believes are qualified.
After completing an interview of a candidate referred by HireNYC, the Contractor must provide feedback via the portal within twenty (20) business days to indicate which candidates were interviewed and hired, if any. In addition, the Contractor shall provide the start date of new hires, and additional information reasonably related to such hires, within twenty (20) business days after the start date. In the event the Contractor does not have any job openings covered by this Rider in any given year, the Contractor shall be required to provide an annual update to HireNYC to that effect. For this purpose, the reporting year shall run from the date of the registration of the contract and each anniversary date.
These requirements do not limit the Contractor’s ability to assess the qualifications of prospective workers, and to make final hiring and retention decisions. No provision of this Rider shall be interpreted so as to require the Contractor to employ any particular worker.
In addition, the provisions of this Rider shall not apply to positions that the Contractor intends to fill with employees employed pursuant to the job retention provision of Section 22-505 of the Administrative Code of the City of New York. The Contractor shall not be required to report such openings with HireNYC. However, the Contractor shall enroll with the HireNYC system pursuant to Section A, above, and, if such positions subsequently become open, then the remaining provisions of this Rider will apply.
C. Breach and Liquidated Damages
If the Contractor fails to comply with the terms of the contract and this Rider (1) by not enrolling its business with HireNYC; (2) by not informing HireNYC, as required, of open positions; or (3) by failing to interview a qualified candidate, the contracting agency may assess liquidated damages in the amount of two-thousand five hundred dollars ($2,500.00) per breach. For all other events of noncompliance with the terms of this Rider, the agency may assess liquidated damages in the amount of five hundred dollars ($500) per breach.
Furthermore, in the event the Contractor breaches the requirements of this Rider during the term of the contract, the City may hold the Contractor in default of this contract.
Audit Compliance
In addition to the auditing requirements set forth in other parts of the contract, the Contractor shall permit SBS and the City to inspect any and all records concerning or relating to job openings or the hiring of individuals for work arising from the contract and located in New York City. The Contractor shall permit an inspection within seven (7) business days of the request.
2 Other Reporting Requirements
The Contractor shall report to the City, on a monthly basis, all information reasonably requested by the City that is necessary for the City to comply with any reporting requirements imposed by law or rule, including any requirement that the City maintain a publicly accessible database. In addition, the Contractor agrees to comply with all reporting requirements imposed by law or rule, or as otherwise requested by the City.
Construction Requirements
Construction contractors shall comply with the HireNYC requirements set forth above for all non-trades jobs (e.g., for an administrative position arising out of the work of the contract and located in New York City) as set forth above.
In addition, construction contractors shall reasonably cooperate with SBS and the City on specific outreach events, including Hire on the Spot events, for the hiring of trades workers for the work of this contract.
Further, this contract shall be subject to a project labor agreement if so required elsewhere in this contract.
Federal Hiring Requirements
The Contractor shall comply with all federal hiring requirements as may be set forth elsewhere in this contract, including, as applicable:
Section 3 of the HUD Act of 1968, which requires, to the greatest extent feasible, economic opportunities for 30 percent of new hires be given to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing.
Executive Order 11246, which prohibits discrimination in employment due to race, color, religion, sex or national origin, and requires the implementation of goals for minority and female participation for work involving any Construction trade.
3 ATTACHMENT M PAID SICK LEAVE LAW CONTRACT RIDER
RFP TITLE: NR-STRUCT-DES - Design Services and Design Services During Construction for North River Wastewater Treatment Plant Structural Improvements Project PIN: 82617WP01396
76 NR-STRUCT-DES RFP 3/6/2017 PAID SICK LEAVE LAW CONTRACT RIDER
Introduction and General Provisions
The Earned Sick Time Act, also known as the Paid Sick Leave Law (“PSLL”), requires covered employees who annually perform more than 80 hours of work in New York City to be provided with paid sick time. 1Contractors of the City of New York or of other governmental entities may be required to provide sick time pursuant to the PSLL.
The PSLL became effective on April 1, 2014, and is codified at Title 20, Chapter 8, of the New York City Administrative Code. It is administered by the City’s Department of Consumer Affairs (“DCA”); DCA’s rules promulgated under the PSLL are codified at Chapter 7 of Title 6 of the Rules of the City of New York (“Rules”).
Contractor agrees to comply in all respects with the PSLL and the Rules, and as amended, if applicable, in the performance of this agreement. Contractor further acknowledges that such compliance is a material term of this agreement and that failure to comply with the PSLL in performance of this agreement may result in its termination.
Contractor must notify the Agency Chief Contracting Officer of the City agency or other entity with whom it is contracting in writing within ten (10) days of receipt of a complaint (whether oral or written) regarding the PSLL involving the performance of this agreement. Additionally, Contractor must cooperate with DCA’s education efforts and must comply with DCA’s subpoenas and other document demands as set forth in the PSLL and Rules.
The PSLL is summarized below for the convenience of Contractor. Contractor is advised to review the PSLL and Rules in their entirety. On the website www.nyc.gov/PaidSickLeave there are links to the PSLL and the associated Rules as well as additional resources for employers, such as Frequently Asked Questions, timekeeping tools and model forms, and an event calendar of upcoming presentations and webinars at which Contractor can get more information about how to comply with the PSLL. Contractor acknowledges that it is responsible for compliance with the PSLL notwithstanding any inconsistent language contained herein.
Pursuant to the PSLL and the Rules:
Applicability, Accrual, and Use
An employee who works within the City of New York for more than eighty hours in any consecutive 12- month period designated by the employer as its “calendar year” pursuant to the PSLL (“Year”) must be provided sick time. Employers must provide a minimum of one hour of sick time for every 30 hours worked by an employee and compensation for such sick time must be provided at the greater of the employee’s regular hourly rate or the minimum wage. Employers are not required to provide more than forty hours of sick time to an employee in any Year.
1 Pursuant to the PSLL, if fewer than five employees work for the same employer, as determined pursuant to New York City Administrative Code §20‐912(g), such employer has the option of providing such employees uncompensated sick time An employee has the right to determine how much sick time he or she will use, provided that employers may set a reasonable minimum increment for the use of sick time not to exceed four hours per day. In addition, an employee may carry over up to forty hours of unused sick time to the following Year, provided that no employer is required to allow the use of more than forty hours of sick time in a Year or carry over unused paid sick time if the employee is paid for such unused sick time and the employer provides the employee with at least the legally required amount of paid sick time for such employee for the immediately subsequent Year on the first day of such Year.
An employee entitled to sick time pursuant to the PSLL may use sick time for any of the following:
• such employee’s mental illness, physical illness, injury, or health condition or the care of such illness, injury, or condition or such employee’s need for medical diagnosis or preventive medical care; • such employee’s care of a family member (an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, or the child or parent of an employee’s spouse or domestic partner) who has a mental illness, physical illness, injury or health condition or who has a need for medical diagnosis or preventive medical care; • closure of such employee’s place of business by order of a public official due to a public health emergency; or • such employee’s need to care for a child whose school or childcare provider has been closed due to a public health emergency.
An employer must not require an employee, as a condition of taking sick time, to search for a replacement. However, an employer may require an employee to provide: reasonable notice of the need to use sick time; reasonable documentation that the use of sick time was needed for a reason above if for an absence of more than three consecutive work days; and/or written confirmation that an employee used sick time pursuant to the PSLL. However, an employer may not require documentation specifying the nature of a medical condition or otherwise require disclosure of the details of a medical condition as a condition of providing sick time and health information obtained solely due to an employee’s use of sick time pursuant to the PSLL must be treated by the employer as confidential.
If an employer chooses to impose any permissible discretionary requirement as a condition of using sick time, it must provide to all employees a written policy containing those requirements, using a delivery method that reasonably ensures that employees receive the policy. If such employer has not provided its written policy, it may not deny sick time to an employee because of non-compliance with such a policy.
Sick time to which an employee is entitled must be paid no later than the payday for the next regular payroll period beginning after the sick time was used. Exemptions and Exceptions
Notwithstanding the above, the PSLL does not apply to any of the following:
• an independent contractor who does not meet the definition of employee under section 190(2) of the New York State Labor Law; • an employee covered by a valid collective bargaining agreement in effect on April 1, 2014 until the termination of such agreement; • an employee in the construction or grocery industry covered by a valid collective bargaining agreement if the provisions of the PSLL are expressly waived in such collective bargaining agreement; • an employee covered by another valid collective bargaining agreement if such provisions are expressly waived in such agreement and such agreement provides a benefit comparable to that provided by the PSLL for such employee; • an audiologist, occupational therapist, physical therapist, or speech language pathologist who is licensed by the New York State Department of Education and who calls in for work assignments at will, determines his or her own schedule, has the ability to reject or accept any assignment referred to him or her, and is paid an average hourly wage that is at least four times the federal minimum wage; • an employee in a work study program under Section 2753 of Chapter 42 of the United States Code; • an employee whose work is compensated by a qualified scholarship program as that term is defined in the Internal Revenue Code, Section 117 of Chapter 20 of the United States Code; or • a participant in a Work Experience Program (WEP) under section 336-c of the New York State Social Services Law.
Retaliation Prohibited
An employer may not threaten or engage in retaliation against an employee for exercising or attempting in good faith to exercise any right provided by the PSLL. In addition, an employer may not interfere with any investigation, proceeding, or hearing pursuant to the PSLL.
Notice of Rights
An employer must provide its employees with written notice of their rights pursuant to the PSLL. Such notice must be in English and the primary language spoken by an employee, provided that DCA has made available a translation into such language. Downloadable notices are available on DCA’s website at http://www.nyc.gov/html/dca/html/law/PaidSickLeave.shtml.
Any person or entity that willfully violates these notice requirements is subject to a civil penalty in an amount not to exceed fifty dollars for each employee who was not given appropriate notice. Records
An employer must retain records documenting its compliance with the PSLL for a period of at least three years, and must allow DCA to access such records in furtherance of an investigation related to an alleged violation of the PSLL.
Enforcement and Penalties
Upon receiving a complaint alleging a violation of the PSLL, DCA has the right to investigate such complaint and attempt to resolve it through mediation. Within 30 days of written notification of a complaint by DCA, or sooner in certain circumstances, the employer must provide DCA with a written response and such other information as DCA may request. If DCA believes that a violation of the PSLL has occurred, it has the right to issue a notice of violation to the employer.
DCA has the power to grant an employee or former employee all appropriate relief as set forth in New York City Administrative Code 20-924(d). Such relief may include, among other remedies, treble damages for the wages that should have been paid, damages for unlawful retaliation, and damages and reinstatement for unlawful discharge. In addition, DCA may impose on an employer found to have violated the PSLL civil penalties not to exceed $500 for a first violation, $750 for a second violation within two years of the first violation, and $1,000 for each succeeding violation within two years of the previous violation.
More Generous Polices and Other Legal Requirements
Nothing in the PSLL is intended to discourage, prohibit, diminish, or impair the adoption or retention of a more generous sick time policy, or the obligation of an employer to comply with any contract, collective bargaining agreement, employment benefit plan or other agreement providing more generous sick time. The PSLL provides minimum requirements pertaining to sick time and does not preempt, limit or otherwise affect the applicability of any other law, regulation, rule, requirement, policy or standard that provides for greater accrual or use by employees of sick leave or time, whether paid or unpaid, or that extends other protections to employees. The PSLL may not be construed as creating or imposing any requirement in conflict with any federal or state law, rule or regulation. ATTACHMENT N
NOTICE TO ALL PROSPECTIVE CONTRACTORS: NEW YORK STATE M/WBE REQUIREMENTS FOR STATE FUNDED (SRF) PROJECTS
RFP TITLE: NR-STRUCT-DES - Design Services and Design Services During Construction for the North River Wastewater Treatment Plant Structural Improvements Project
PIN: 82617WP01396
FOR SRF FUNDED PROJECTS SEE FOLLOWING PAGES: Section 16.0 Appendix G: CWSRF Engineering Report Template and the most recent SOP 003 Basis of Design Report to develop the BODR.
77 NR-STRUCT-DES RFP 3/6/2017 ANDREW M. CUOMO Governor SABRINA M. TY President and CEO
Program Requirements and Bid Packet for Non-Construction Contracts
(For Treatment Works, Drinking Water and Water Grant projects funded with NYS Clean Water State Revolving Fund or Drinking Water State Revolving Fund)
Effective October 1, 2016
New York State Environmental Facilities Corporation 625 Broadway, Albany, NY 12207-2997 P: (518) 402-6924 F: (518) 402-7456 www.efc.ny.gov
Bid Packet (For Treatment Works, Drinking Water and Water Grant projects funded with NYS CWSRF or DWSRF) SRF Non-Construction Contracts Page 1 of 19 Revision Date: 10/1/2016 Table of Contents
PART 1: HOW TO USE THIS DOCUMENT ...... 4
PART 2: REQUIRED CONTRACT LANGUAGE ...... 6 SECTION 1 REQUIREMENTS AND PROCEDURES FOR BUSINESS PARTICIPATION OPPORTUNITIES FOR FEDERAL DISADVANTAGED BUSINESS ENTERPRISES AND NEW YORK STATE CERTIFIED MINORITY- AND WOMEN-OWNED BUSINESS ENTERPRISES AND EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITY GROUP MEMBERS AND WOMEN ...... 6 I. General Provisions ...... 6 II. Equal Employment Opportunities (EEO) ...... 7 III. Business Participation Opportunities for MWBEs ...... 8 A. Contract Goals ...... 8 B. MWBE Utilization Plan ...... 8 C. Requests for Waiver ...... 9 D. Monthly MWBE Contractor Compliance Report (“Monthly MWBE Report”) ...... 9 E. Required Federal DBE Forms ...... 9 F. Liquidated Damages - MWBE Participation ...... 9 SECTION 2 REQUIREMENTS REGARDING SUSPENSION AND DEBARMENT ...... 10 SECTION 3 RESTRICTIONS ON LOBBYING ...... 10
PART 3: GUIDANCE MATERIALS ...... 11 APPLICABILITY OF PROGRAM REQUIREMENTS ...... 11 SECTION 1 GUIDANCE FOR THE REQUIREMENTS AND PROCEDURES FOR BUSINESS PARTICIPATION OPPORTUNITIES FOR FEDERAL DISADVANTAGED BUSINESS ENTERPRISES AND NEW YORK STATE CERTIFIED MINORITY- AND WOMEN-OWNED BUSINESS ENTERPRISES AND EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITY GROUP MEMBERS AND WOMEN ...... 12 I. Summary of EEO, MWBE, and DBE Forms ...... 12 A. Forms to be Submitted Prior to Contract Execution ...... 12 B. Forms to be Submitted During the Term of the Contract ...... 12 II. Business Participation Opportunities for MWBEs ...... 13 A. Contract Goals ...... 13 B. Good Faith Efforts ...... 13 C. MWBE Utilization Plan ...... 14 D. Eligibility for MWBE Participation Credit ...... 15 E. Requests for Waiver ...... 15 III. Subcontractor’s Responsibilities ...... 16 IV. Protests/Complaints ...... 16 V. Waste, Fraud and Abuse ...... 17 SECTION 2 GUIDANCE FOR REQUIREMENTS REGARDING SUSPENSION AND DEBARMENT ...... 17 SECTION 3 GUIDANCE FOR RESTRICTIONS ON LOBBYING ...... 17 SECTION 4 PROGRAM CONTRACT REQUIREMENT DECISION TREE ...... 18 SECTION 5 SUMMARY OF CONTRACTOR REQUIREMENTS FOR SRF-FUNDED PROJECTS ...... 19
Bid Packet (For Treatment Works, Drinking Water and Water Grant projects funded with NYS CWSRF or DWSRF) SRF Non-Construction Contracts Page 2 of 19 Revision Date: 10/1/2016
ATTACHMENTS (REQUIRED FORMS) Attachment 1 - EEO Policy Statement Attachment 2 - EEO Staffing Plan Attachment 3 - EEO Workforce Employment Utilization Report Attachment 4 - Monthly MWBE Contractor Compliance Report Attachment 5 - MWBE Utilization Plan Attachment 6 - MWBE Waiver Request Attachment 7 - EPA Form 6100-2 - DBE Subcontractor Participation Form Attachment 8 - EPA Form 6100-3 - DBE Subcontractor Performance Form Attachment 9 - EPA Form 6100-4 - DBE Subcontractor Utilization Form Attachment 10 - Lobbying Certification
Bid Packet (For Treatment Works, Drinking Water and Water Grant projects funded with NYS CWSRF or DWSRF) SRF Non-Construction Contracts Page 3 of 19 Revision Date: 10/1/2016
PART 1:
HOW TO USE THIS DOCUMENT
The New York State Environmental Facilities Corporation (“EFC”) implements the New York State Revolving Fund (“SRF”) for both Clean Water and Drinking Water projects.
This Program Requirements and Bid Packet for Non-Construction Contracts document contains (1) a brief description of New York State and federal program requirements for Contracts and Subcontracts funded in whole or part by the New York State Clean Water and Drinking Water SRFs, (2) required language for such Contracts and Subcontracts to satisfy the SRF program requirements, including required forms, and (3) guidance materials to assist entities in complying with these requirements.
PROGRAM REQUIREMENTS
The following requirements apply to Treatment Works, Drinking Water and Water Grant projects funded with the NYS Clean Water State Revolving Fund or Drinking Water State Revolving Fund:
Participation of Minority- and Women-Owned Business Enterprises (“MWBE”) and Equal Employment Opportunities (“EEO”) pursuant to New York State Executive Law, Article 15-A and New York Code of Rules and Regulations, Title 5 (5 NYCRR) Parts 140-145 (Regulations of the Commissioner of Economic Development);
Participation by Disadvantaged Business Enterprises (“DBE”) in United States Environmental Protection Agency (“EPA”) Programs pursuant to 40 Code of Federal Regulations (CFR) Part 33;
Equal Employment Opportunities pursuant to Title VI of the Civil Rights Act of 1964 and 40 CFR Part 7;
Requirements regarding suspension and debarment pursuant to 2 CFR Part 180, 2 CFR Part 1532, 29 CFR § 5.12, State Labor Law § 220-b, and State Executive Law § 316; and,
Restrictions on Lobbying pursuant to 40 CFR Part 34.
EFC or its authorized representatives, and other governmental entities as applicable, reserve the right to conduct occasional site inspections to monitor compliance with SRF program requirements.
This document is not intended to be inclusive of all applicable legal requirements and there may be other legal requirements that need to be included in a particular Contract or Subcontract that are not set forth here. Accordingly, EFC recommends that Recipients, Contractors, Subcontractors, and any other involved entities consult their legal counsel for advice on compliance will all applicable laws, including but not limited to local laws. This document is not intended to be legal advice.
Refer to the EFC website at www.efc.ny.gov/MWBE for the latest version of the bid packet to ensure that the most recent forms and contract language are being used.
REQUIRED CONTRACT LANGUAGE
Part 2 of this document is the Required Contract Language. All of the language in Part 2 must be inserted in to all Contracts and Subcontracts funded in whole or in part with SRF funds, in order for SRF Recipients, Contractors, and Subcontractors to comply with the above-listed SRF program requirements.
Bid Packet (For Treatment Works, Drinking Water and Water Grant projects funded with NYS CWSRF or DWSRF) SRF Non-Construction Contracts Page 4 of 19 Revision Date: 10/1/2016
GUIDANCE MATERIALS
Part 3 of this document sets forth Guidance Materials intended to assist SRF Recipients, Contractors, and Subcontractors in complying with the foregoing SRF program requirements, as applicable.
The Guidance Materials are for informational purposes only and are not intended to be used as contractual language. Please do not incorporate the Guidance Materials into any Contracts or Subcontracts.
COMMONLY USED TERMS
The following commonly used terms are defined herein as follows:
“Contract” means an agreement between a Recipient and a Contractor.
“Contractor” means all bidders, prime contractors, Service Providers, and consultants as hereinafter defined, unless specifically referred to otherwise.
“Service Provider” means any individual or business enterprise that provides one or more of the following: legal, engineering, financial advisory, technical, or other professional services, supplies, commodities, equipment, materials, or travel.
“Subcontract” means an agreement between a Contractor and a Subcontractor.
“Subcontractor” means any individual or business enterprise that has an agreement, purchase order, or any other contractual arrangement with a Contractor.
“Recipient” means the party, other than EFC, to a grant agreement or a project finance agreement with EFC through which funds for the payment of amounts due thereunder are being paid in whole or in part.
“State” means the State of New York.
“Treatment Works” is defined in Clean Water Act (CWA) Section 212.
“Nonpoint Source Projects” and “Green Infrastructure Projects” are defined in CWA Section 319.
“Estuary Management Program Project” is defined in CWA Section 320.
Bid Packet (For Treatment Works, Drinking Water and Water Grant projects funded with NYS CWSRF or DWSRF) SRF Non-Construction Contracts Page 5 of 19 Revision Date: 10/1/2016
PART 2:
REQUIRED CONTRACT LANGUAGE
SECTION 1 REQUIREMENTS AND PROCEDURES FOR BUSINESS PARTICIPATION OPPORTUNITIES FOR FEDERAL DISADVANTAGED BUSINESS ENTERPRISES AND NEW YORK STATE CERTIFIED MINORITY- AND WOMEN- OWNED BUSINESS ENTERPRISES AND EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITY GROUP MEMBERS AND WOMEN
The Equal Employment Opportunities requirements of this section apply to Contracts and Subcontracts greater than $10,000.
The Minority- and Women- Owned Business Enterprises (“MWBE”) and Disadvantaged Business Enterprises (“DBE”) requirements of this section apply to Contractors and Subcontractors working pursuant to: (1) Contracts for labor, services (including, but not limited to, legal, financial, and other professional services), supplies, equipment, materials, or any combination of the foregoing, greater than $25,000; (2) Contracts that are initially under this threshold but subsequent change orders or contract amendments increase the Contract value to above $25,000; and, (3) change orders greater than $25,000.
Disregard this section if it does not apply to this Contract or Subcontract.
I. General Provisions
A. Contractors and Subcontractors are required to comply with the following provisions:
1. New York State Executive Law Article 15-A and 5 NYCRR Parts 140-145 (“MWBE Regulations”) for all State contracts as defined therein, with a value (1) in excess of $25,000 for labor, services (including, but not limited to, legal, legal, financial, and other professional services), supplies, equipment, materials, or any combination of the foregoing, or (2) in excess of $100,000 for the acquisition, construction, demolition, replacement, major repair or renovation or real property and improvements thereon. 2. 40 CFR Part 33 (“Federal DBE Regulations”) for contracts under EPA financial assistance agreements, as those terms are defined therein. 3. Title VI of the Civil Rights Act of 1964 and 40 CFR Part 7 (“Title VI”) for any program or activity receiving federal financial assistance, as those terms are defined therein.
B. The Contractor and Subcontractor shall not discriminate on the basis of race, color, national origin or sex in the performance of this Contract. The Contractor and Subcontractor shall carry out applicable requirements of 40 CFR Part 33 in the award and administration of contracts awarded under EPA financial assistance agreements. Failure by the Contractor and Subcontractor to carry out these requirements is a material breach of this Contract which may result in the termination of this Contract or other legally available remedies.
C. Contractors and Subcontractors shall have instituted grievance procedures to assure the prompt and fair resolution of complaints when a violation of Title VI of the Civil Rights Act of 1964 or Title 40 CFR Part 7 is alleged.
D. Failure to comply with all of the requirements herein may result in a finding by the Recipient that the Contractor is non-responsive, non-responsible, and/or has breached the Contract, leading to
Bid Packet (For Treatment Works, Drinking Water and Water Grant projects funded with NYS CWSRF or DWSRF) SRF Non-Construction Contracts Page 6 of 19 Revision Date: 10/1/2016
the withholding of funds or such other actions, liquidated damages pursuant to subsection III(F) of this section, or enforcement proceedings as allowed by the Contract.
E. If any terms or provisions herein conflict with Executive Law Article 15-A, the MWBE Regulations, Federal DBE Regulations, or Title VI, such law and regulations shall supersede these requirements.
F. Upon request from the Recipient’s Minority Business Officer (“MBO”) and/or EFC, Contractor will provide complete responses to inquiries and all MWBE and EEO records available within a reasonable time. For purposes of this section, MBO means the duly authorized representative of the SRF Recipient for MWBE and EEO purposes.
II. Equal Employment Opportunities (EEO)
A. Each Contractor and Subcontractor performing work on the Contract 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 of pay or other forms of compensation.
B. Contractor represents that it has submitted an EEO policy statement to Recipient prior to the execution of this Contract.
C. Contractor represents that it’s EEO policy statement includes the following language:
1. The contractor will not discriminate on the basis of race, creed, color, national origin, sex, age, disability, or marital status against any employee or applicant for employment, will undertake or continue existing programs of affirmative action to ensure that minority group members and women are afforded equal employment opportunities without discrimination and will make and document its conscientious and active efforts to employ and utilize minority group members and women in its work force on Contracts relating to SRF projects. 2. The Contractor shall state in all solicitations or advertisements for employees that, in the performance of the Contract relating to this SRF project, all qualified applicants will be afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability or marital status. 3. 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 II(A), II(C), and II(E) in every Subcontract in such a manner that the requirements of these subdivisions will be binding upon each Subcontractor as to work in connection with the Contract.
E. The Contractor shall comply with the provisions of the Human Rights Law (Executive Law Article 15), Title VI, and 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 orientation, military status, age, disability, predisposing genetic characteristic, marital 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.
F. Required EEO Form
1. EEO Staffing Plan
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To ensure compliance with this section, the Contractor represents that it has submitted prior to execution of this Contract an EEO Staffing Plan to the Recipient’s MBO to document the composition of the proposed workforce to be utilized in the performance of the Contract by the specified categories listed, including ethnic background, gender, and federal occupational categories.
2. EEO Workforce Employment Utilization Report (“Workforce Report”)
a. The Contractor shall submit a Workforce Report, and shall require each of its Subcontractors to submit a Workforce Report to the Recipient, in such format as shall be required by EFC on a quarterly basis during the term of the Contract. b. Separate forms shall be completed by Contractor and any Subcontractor. c. In limited 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 Subcontractor's total workforce. When a separation can be made, the Contractor shall submit the Workforce Report and indicate that the information provided related to the actual workforce utilized on the Contract. When the workforce to be utilized on the Contract cannot be separated out from the Contractor's and/or Subcontractor's total workforce, the Contractor shall submit the Workforce 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.
III. Business Participation Opportunities for MWBEs
A. Contract Goals
1. For purposes of this Contract, EFC establishes the following goals for New York State certified MWBE participation (“MWBE Combined Goals”) based on the current availability of qualified MBEs and WBEs. Program MWBE Combined Goal* CWSRF, DWSRF, & Green 20% Innovation Grant Program NYS Water Grants Clean Water project 23% (also receiving EFC loan) Drinking Water project 26% NYS Water Grants 30% (grant only) Consolidated Funding Application Round 2012-2014 20% Engineering Planning Grant Consolidated Funding Application Round 2015-2017 30%
*May be any combination of MBE and/or WBE participation
2. For purposes of providing meaningful participation by MWBEs on the Contract and achieving the MWBE Contract Goals established in Section III-A hereof, the Contractor should reference the directory of New York State Certified MWBEs found at the following internet address: https://ny.newnycontracts.com. 3. Where MWBE Contract Goals have been established herein, pursuant to 5 NYCRR § 142.8, the Contractor must document “good faith efforts” to provide meaningful participation by MWBEs as Subcontractors or suppliers in the performance of the Contract. In accordance with Section 316-a of Article 15-A and 5 NYCRR § 142.13, 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 Contract, such a finding constitutes a breach of Contract and the Contractor shall be liable to the Recipient for liquidated or other appropriate damages, as set forth herein.
B. MWBE Utilization Plan
1. The Contractor represents and warrants that Contractor has submitted an MWBE Utilization Plan to the Recipient prior to the execution of this Contract.
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2. The Contractor agrees to use such MWBE Utilization Plan for the performance of MWBEs on the Contract pursuant to the prescribed MWBE goals set forth in Section III-A of this section. 3. 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 the Contract. Upon the occurrence of such a material breach, the Recipient shall be entitled to any remedy provided herein, including but not limited to, a finding that the Contractor is not responsive. 4. Contractor must report any changes to the Utilization Plan after Contract award and during the term of the Contract to the Recipient’s MBO. Contractor shall indicate the changes to the MBO in the next Monthly MWBE Contractor Compliance Report after the changes occurred. At EFC’s discretion, an updated MWBE Utilization Plan form and good faith effort documentation may be required to be submitted. When a Utilization Plan is revised due to execution of a change order, the change order should be submitted to the MBO with the revised Utilization Plan. 5. The Contractor shall submit copies of all fully executed subcontracts, agreements, and purchase orders that are referred to in the MWBE Utilization Plan to the MBO within 30 days of their execution.
C. Requests for Waiver
1. If the Contractor, after making good faith efforts, is unable to comply with MWBE goals, the Contractor may submit a Request for Waiver to the Recipient documenting good faith efforts by the Contractor to meet such goals. If the documentation included with the waiver request is complete, the Recipient shall forward the request to EFC for evaluation, and EFC will issue a written notice of acceptance or denial within twenty (20) days of receipt. 2. If the Recipient, 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 non-compliance, the Recipient may issue a notice of deficiency to the Contractor. The Contractor must respond to the notice of deficiency within seven (7) business days of receipt. Such response may include a request for partial or total waiver of MWBE Contract Goals.
D. Monthly MWBE Contractor Compliance Report (“Monthly MWBE Report”)
The Contractor agrees to submit a report to the Recipient by the third business day following the end of each month over the term of this Contract documenting the payments made and the progress towards achievement of the MWBE goals of the Contract. The Monthly MWBE Report must be supplemented with proof of payment by the Contractor to its Subcontractors (e.g., copies of both sides of a cancelled check) and proof that Subcontractors have been paid within 30 days of receipt of payment from the Recipient. The final Monthly MWBE Report must reflect all Utilization Plan revisions and change orders.
E. Required Federal DBE Forms
1. EPA Form 6100-3 - DBE Subcontractor Performance Form Contractor represents that it has submitted the Form 6100-3 to all of its Subcontractors, all of its Subcontractors have completed the form, and that Contractor submitted such completed forms to Recipient with its bid submission. 2. EPA Form 6100-4 - DBE Subcontractor Utilization Form Contractor represents that it has completed the Form 6100-4 and submitted such completed form to Recipient with its bid submission. 3. EPA Form 6100-2 - DBE Subcontractor Participation Form Contractor represents that it has distributed a Form 6100-2 to its MWBE Subcontractors for completion prior to execution of this Contract.
F. Liquidated Damages - MWBE Participation
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In accordance with Section 316-a of Article 15-A and 5 NYCRR §142.13, if it has been determined by the Recipient or EFC that the Contractor has willfully and intentionally failed to comply with the MWBE participation goals, the Contractor shall be obligated to pay to Recipient liquidated damages or other appropriate damages, as specified herein and as determined by the Recipient or EFC.
Liquidated damages shall be calculated as an amount not to exceed the difference between:
1. All sums identified for payment to MWBEs had the Contractor achieved the approved MWBE participation goals; and, 2. All sums actually paid to MWBEs for work performed or materials supplied under this Contract.
The Recipient and EFC reserve the right to impose a lesser amount of liquidated damages than the amount calculated above based on the circumstances surrounding the Contractor’s non- compliance.
In the event a determination has been made by the Recipient or EFC which requires the payment of damages identified herein and such identified sums have not been withheld, Contractor shall pay such damages to the Recipient within sixty (60) days after they are assessed unless prior to the expiration of such sixtieth day, the Contractor has filed a complaint with the Empire State Development Corporation – Division of Minority and Women’s Business Development (“ESD”) pursuant to Subdivision 8 of Section 313 of the Executive Law in which event the damages shall be payable if the Director of ESD renders a decision in favor of the Recipient.
SECTION 2 REQUIREMENTS REGARDING SUSPENSION AND DEBARMENT
The requirements of this section apply to all Contracts and Subcontracts.
Contractor and any Subcontractors shall comply with, Subpart C of 2 CFR Part 180 as implemented and supplemented by 2 CFR Part 1532. The Contractor is not a debarred or suspended party under 2 CFR Part 180 or 2 CFR Part 1532, or 29 CFR § 5.12. Neither the Contractor nor any of its Subcontractors have contracted with, or will contract with, any debarred or suspended party under the foregoing regulations.
The Contractor and any Subcontractors have not been deemed ineligible to submit a bid on or be awarded a public contract or subcontract pursuant to Article 8 of the State Labor Law, specifically Labor Law § 220-b. In addition, neither the Contractor nor any Subcontractors have contracted with, or will contract with, any party that has been deemed ineligible to submit a bid on or be awarded a public contract or subcontract under Labor Law § 220-b.
In addition, the Contractor and any Subcontractors have not been deemed ineligible to submit a bid and have not contracted with and will not contract with any party that has been deemed ineligible to submit a bid under Executive Law § 316.
SECTION 3 RESTRICTIONS ON LOBBYING
The requirements of this section apply to all Contracts and Subcontracts greater than $100,000. Disregard this section if it does not apply to this Contract or Subcontract.
The Contractor and any Subcontractor executing a Contract or Subcontract in excess of $100,000 agree to provide to the Recipient an executed Certification Regarding Lobbying pursuant to 40 CFR Part 34 (“Lobbying Certification”) in the form attached hereto as Attachment 10, consistent with the prescribed form provided in Appendix A to 40 CFR Part 34.
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PART 3:
GUIDANCE MATERIALS
APPLICABILITY OF PROGRAM REQUIREMENTS
This chart contains a listing of the SRF program requirements contained within this document, as well as the following details regarding each requirement: (1) its applicability, i.e., what types of contracts/subcontracts, particular monetary thresholds if applicable; (2) a section reference to the Required Contract Language that applies from Part 2; and (3) a section reference to the Guidance that applies from this Part.
Section of Section of Required Appropriate Requirement Applicability Contract Guidance from Language Part 3 from Part 2 Equal Employment Contracts and Subcontracts 1 1 Opportunities greater than $10,000 (EEO) Suspension and All Contracts and Subcontracts 2 2 Debarment Contractors and Subcontractors working pursuant to: (1) Contracts for labor, services (including, but Minority- and not limited to, legal, financial, and Women- Owned other professional services), Business supplies, equipment, materials, or Enterprises any combination of the foregoing, (MWBE) greater than $25,000; (2) 1 1 and Contracts that are initially under Disadvantaged this threshold but subsequent Business change orders or Contract Enterprises (DBE) amendments increase the Contract value above $25,000; and, (3) Change orders greater than $25,000 Restrictions on All Contracts and Subcontracts 3 3 Lobbying greater than $100,000
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SECTION 1 GUIDANCE FOR THE REQUIREMENTS AND PROCEDURES FOR BUSINESS PARTICIPATION OPPORTUNITIES FOR FEDERAL DISADVANTAGED BUSINESS ENTERPRISES AND NEW YORK STATE CERTIFIED MINORITY- AND WOMEN-OWNED BUSINESS ENTERPRISES AND EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITY GROUP MEMBERS AND WOMEN
I. Summary of EEO, MWBE, and DBE Forms
A. Forms to be Submitted Prior to Contract Execution
1. EEO Policy Statement To be submitted by the Contractor to the Recipient’s Minority Business Officer (“MBO”) prior to Contract execution. The “MBO” refers to the duly authorized representative of the SRF Recipient for MWBE and EEO purposes. This form is attached hereto as Attachment 1. See Required Contract Language, Section 1(II).
2. EEO Staffing Plan To be submitted by the Contractor to the MBO prior to Contract execution. This form is attached hereto as Attachment 2. See required Contract Language, Section 1(II).
3. EPA Form 6100-3 – DBE Subcontractor Performance Form To be submitted by the Contractor to the MBO with its bid submission. This form is attached hereto as Attachment 8. See Required Contract Language, Section 1(III)(E).
4. EPA Form 6100-4 – DBE Subcontractor Utilization Form To be submitted by the Contractor to the MBO with its bid submission. This form is attached hereto as Attachment 9. See Required Contract Language, Section 1(III)(E).
5. EPA Form 6100-2 – DBE Subcontractor Participation Form To be submitted by the Subcontractors to the MBO prior to Contract execution. The Contractor must provide the form to the Subcontractors for completion. The Contractor should also submit documentation (e.g., email, letter, certified mail receipt) to the MBO that the 6100-2 form was made available to the MWBE Subcontractors. This form is attached hereto as Attachment 7. See Required Contract Language, Section 1(III)(E).
6. MWBE Utilization Plan To be submitted by the Contractor to the MBO after the bid opening, but in no case more than ten (10) business days after the Contractor receives notice from the Recipient that the Contractor has submitted a low bid. This form is attached hereto as Attachment 5. See Required Contract Language, Section 1(III)(B).
B. Forms to be Submitted During the Term of the Contract
1. EEO Workforce Employment Utilization Report (“Workforce Report”) To be submitted by the Contractor to the MBO on a quarterly basis during the term of the Contract. This form is attached hereto as Attachment 3. See Required Contract Language, Section 1(II)(G).
2. Request for Partial or Total Waiver If applicable, to be submitted by the Contractor to the MBO at any time during the term of the Contract, but not later than prior to the submission of a request for final payment on the Contract. This form is attached hereto as Attachment 6. See Required Contract Language, Section 1(III)(C).
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3. Monthly MWBE Contractor Compliance Report (“Monthly MWBE Report”) To be submitted by the Contractor to the MBO by the third business day following the end of each month over the term of the Contract. This form is attached hereto as Attachment 4. See Required Contract Language, Section 1(III)(D).
II. Business Participation Opportunities for MWBEs
A. Contract Goals The goals provided herein (Required Contract Language, Section 1(III)(A)) are effective as of October 1, 2016. MWBE participation goals for a contract will be based on the goals in place at the time of the execution date of each respective contract, unless otherwise specified. In certain instances, the goals may vary, such as with projects co-funded by EFC and other state/federal agencies. With some co-funded projects, EFC may defer to the MBE and WBE participation goals and program established by those agencies.
Please contact EFC if you have any questions about the applicable MWBE participation goals for your contract.
B. Good Faith Efforts The Contractor must make good faith efforts to develop an adequate MWBE Utilization Plan and must continue such good faith efforts in order to meet applicable MWBE participation goals. The Contractor shall maintain documentation of good faith efforts to solicit participation of MWBE firms for SRF-funded projects. If a Contractor is unable to meet contract MWBE participation goals, and submits a Request for Waiver, documentation of such good faith efforts must accompany the request. See Required Contract Language, Section 1(III)(C).
Contractor should also continue good faith efforts to seek opportunities for MWBE participation during the life of the contract even if proposed goals have been achieved.
Examples of documentation of good faith efforts are set forth below:
Information on the scope of work related to the contract, such as a copy of the schedule of values from the bid submission, and specific steps taken to reasonably structure the scope of work to break out tasks or equipment needs for the purpose of providing opportunities for subcontracting with, or obtaining supplies or services from, MBEs or WBEs.
Printed screenshots of the directory of Certified Minority- and Women- Owned Business Enterprises (“MWBE directory”) on ESD’s website on a Statewide basis, if appropriate, for both MBEs and WBEs that provide the services or equipment necessary for the contract. Contact the MBO for assistance in performing a proper search including identifying a sufficient number of solicitations to show that good faith effort was made.
Copies of timely solicitations and documentation (e.g., faxes and emails) that the Contractor offered relevant plans, specifications, or other related materials to MBE and WBE firms on ESD’s MWBE directory to participate in the work, with the responses.
A log prepared by the Contractor in a sortable spreadsheet documenting the Contractor’s solicitation of MBEs and WBEs for participation as Subcontractors or suppliers pursuant to a contract. The log should consist of the list of MBE and WBE firms solicited, their contact information, the type of work they were solicited to perform (or equipment to provide), how the solicitation was made (fax, phone, email) and the contact information, the contacts name and the outcome. If a bid was received, the bid price should also be included in the log. See a sample log format below:
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Date M/WBE Company Scope Contact Phone/ Solicitation MWBE Negotiation Selected? Type of Name Email Format Response Required? If not, Explain work
If no response was received to an initial solicitation, at least one follow-up solicitation should be made in a different format than the first, e.g. fax followed by phone call. Any bids received from non-MWBE firms for the same areas MWBEs were solicited should also be tracked on the log.
Copies of the EPA 6100-3 and 6100-4 forms that are required with the bid submission. A properly completed EPA 6100-3 form is good indication of a contact to an MWBE and their response to the contact. If solicitations do not result in obtaining sufficient participation of MWBE firms due to non-responsiveness, please contact the MBO or EFC MWBE representative for support.
Copies of any advertisements of sufficient duration to effectively seek participation of certified MBE and WBEs timely published in appropriate general circulation, trade and MWBE oriented publications, together with listing and dates of publication of such advertisements. EFC recommends the use of the NYS Contract Reporter that is free to all Contractors - https://www.nyscr.ny.gov/. A log should be kept of the responses to the ads, similar to the log for MWBE firm solicitation and should include the non-MWBE firms that responded and the bid prices. Any negotiations should be documented in the log.
Documents demonstrating that insufficient MBEs or WBEs are reasonably available to perform the work.
A written demonstration that the Contractor offered to make up any inability to meet the project MWBE participation goals in other contracts and/or agreements performed by the Contractor on another SRF funded project.
The date of pre-bid, pre-award, or other meetings scheduled by the Recipient, if any, and the contact information of any MBEs and WBEs who attended and are capable of performing work on the project.
Any other information or documentation that demonstrates the Contractor conducted good faith efforts to provide opportunities for MWBE participation in their work. For instance, Prime Contractors and MBOs should develop a list of MWBE firms that have expressed interest in working on SRF-funded projects
The use of certified DBE and small businesses certified through the US Small Business Administration (SBA) may be considered as a demonstration of Good Faith Efforts.
C. MWBE Utilization Plan
1. The MWBE Utilization Plan must be submitted to the Recipient’s MBO after the bid opening, but in no case more than ten (10) business days after the Contractor receives notice from the Recipient that the Contractor has submitted a low bid. 2. The MBO will evaluate a completed MWBE Utilization Plan. If the MBO finds the Utilization Plan sufficient, it will be forwarded to EFC for review. If the MBO finds the Utilization Plan insufficient, the MBO will work with the Contractor to address deficiencies before submitting to EFC for review. A written notice of acceptance or deficiency will be issued by EFC within 20 business days of receipt of the Utilization Plan. Upon receipt of a notice of deficiency from either the MBO or EFC, the Contractor shall respond with a written remedy to such notice within seven (7) business days of receipt. 3. In coordination with the MBO, EFC will accept an MWBE Utilization Plan upon consideration of many factors, including the following:
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a. The MWBE Utilization Plan indicates that the proposed goals for the project will be achieved; b. A Contractor, who is a certified MBE or WBE, will be credited for up to 100% of the category of their certification. However, good faith efforts to seek participation in the other category are also required; and, c. Adequate documentation to demonstrate good faith efforts and/or support a specialty equipment/services waiver as described below in Section II(E). 4. EFC reserves the right to request additional information and/or documentation to support the adequacy of the MWBE Utilization Plan. 5. Within 10 days of EFC’s acceptance of a MWBE Utilization Plan, EFC will post the approved Utilization Plan on the EFC website. 6. In coordination with the MBO, EFC may issue conditional acceptance of Utilization Plans pending submission of additional documentation that demonstrates there will be an increase in MWBE participation.
D. Eligibility for MWBE Participation Credit
1. To receive MWBE participation credit, Contractors or Subcontractors performing work that have been identified in an approved MWBE Utilization Plan must be certified as an MBE or WBE by ESD. 2. Prime Contractors may also include second or lower tier Subcontractors (Subcontractors hired by Subcontractors) on their MWBE Utilization Plan. 3. Credit for MWBE participation shall be granted only for MWBE firms performing a commercially useful business function according to custom and practice in the industry. a. Factors to be used in assessing whether an MWBE is performing a commercially useful function include: i. The amount of work subcontracted; ii. Industry practices; iii. Whether the amount the MWBE is to be paid under the contract is commensurate with the work it is to perform; iv. The credit claimed towards MWBE utilization goals for the performance of the work by the MWBE; and, v. Any other relevant factors.
b. “Commercially useful functions” normally include: i. Providing technical assistance to a purchaser prior to a purchase, during installation, and after the supplies or equipment are placed in service; ii. Manufacturing or being the first tier below the manufacturer of supplies or equipment; iii. Providing functions other than merely accepting and referring requests for supplies or equipment to another party for direct shipment to a Contractor; or, iv. Being responsible for ordering, negotiating price, and determining quality and quantity of materials and supplies. 4. No credit will be granted for MWBEs that do not perform a commercially useful function. An MWBE does not perform a commercially useful function if its role adds no substantive value and is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of participation.
E. Requests for Waiver
1. If the Contractor’s application of good faith efforts does not result in the utilization of MWBE firms to achieve the aforementioned goals or a specialty equipment/service waiver is requested, the Contractor may request a full or partial waiver of MWBE participation goals by completing a Request for Waiver form, attaching appropriate documentation of good faith efforts, and submitting same to the MBO. See also Required Contract Language, Section 1(III)(C). Even if an MWBE waiver is granted, EEO information must still be submitted.
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2. The MBO and EFC will review each waiver request based on the good faith effort criteria presented above and the documentation submitted with the waiver request. EFC will not issue any automatic waivers from MWBE responsibilities. 3. In cases where EFC accepts a full or partial waiver of MWBE participation goals, the waiver request will be posted to EFC’s website. 4. Specialty Equipment/Service Waiver: A specialty equipment/service waiver may be granted in cases where:
a. equipment is made by only one non-MWBE manufacturer, b. the technical specifications call for equipment that is not available through an MWBE supplier; c. the equipment is constructed on site by specially trained non-MWBE labor; d. the service is not available through an MWBE (such as work done by National Grid); e. the service is proprietary in nature (such as use of certain computer software necessary for control systems); or, f. the service cannot be subcontracted (such as litigation services).
If the contract includes specialty equipment or services, and documentation is submitted demonstrating that there are no MWBE firms capable of completing this portion of the contract, the specialty amount of the contract may be deducted from the total contract amount to determine the MWBE Eligible Amount and the goals will be applied to the MWBE Eligible Amount. This determination is made at the discretion of the MBO and EFC. Example: $200,000 - $50,000 = $150,000 (Contract) (Specialty equipment/service) (MWBE Eligible Amount) The MWBE goal is applied to the MWBE Eligible Amount.
A request for this specialty equipment/service deduction can be completed by filling out a Request for Waiver form and submitting it to the MBO. The request must include a copy of the page from the contract where the equipment/ service is described and the cost of each item. Additional documentation may be requested by the MBO or EFC.
III. Subcontractor’s Responsibilities
Subcontractors should:
1. Maintain their MWBE certifications, and notify the Contractor and MBO of any change in their certification status. 2. Notify the Contractor of any MWBE Subcontractors they hire so they may be included on the Contractor’s Utilization Plan. 3. Respond promptly to solicitation requests by completing and submitting bid information in a timely manner. 4. Maintain business records that should include, but not be limited to, contracts/agreements, records of receipts, correspondence, purchase orders, and canceled checks. 5. Complete and submit the EPA Form 6100-3 - DBE Subcontractor Performance Form to the Contractor prior to submission of the Contractor’s bid to the Recipient. 6. Complete and return EPA Form 6100-2 - DBE Subcontractor Participation Form to the Recipient prior to Contractor’s execution of the contract. 7. Ensure that a required EEO Policy Statement and applicable MWBE requirements are included in each subcontract. 8. Notify the MBO and EFC when contract problems arise, such as non-payment for services or when the Subcontractor is not employed as described in the MWBE Utilization Plan.
IV. Protests/Complaints
Contractors or Subcontractors who have any concerns, issues, or complaints regarding the
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implementation of the SRF MWBE & EEO Program, or wish to protest should do so in writing to the MBO and EFC. The MBO, in consultation with EFC, will review the circumstances described in the submission, investigate to develop additional information, if warranted, and determine whether action is required. If the Contractor or Subcontractor believes the issue has not been resolved to their satisfaction, they may appeal in writing to EFC for consideration.
V. Waste, Fraud and Abuse
Subcontractors, Contractors, or Recipients who know of or suspect any instances of waste, fraud, or abuse within the MWBE & EEO Program should notify the project MBO and EFC immediately. Additionally, suspected fraud activity should be reported to the USEPA – Office of Inspector General Hotline at (888) 546-8740, the New York State Office of Inspector General at (800) 367- 4448, or the ESD Compliance Office at (212) 803-3266.
SECTION 2 GUIDANCE FOR REQUIREMENTS REGARDING SUSPENSION AND DEBARMENT
A list of debarred and suspended contractors, pursuant to 2 CFR Parts 180 and 1532 and 29 CFR § 5.12, is available on the US Department of Labor’s website at https://www.sam.gov/portal/public/SAM/.
A list of contractors and subcontractors deemed ineligible to submit a bid on or be awarded a public contract or subcontract, pursuant to Article 8 of the State Labor Law, is available on the New York State Department of Labor’s website at http://labor.ny.gov/workerprotection/publicwork/PDFs/debarred.pdf
A list of contractors deemed ineligible to submit a bid is maintained by Empire State Development’s Division of Minority and Women's Business Development.
SECTION 3 GUIDANCE FOR RESTRICTIONS ON LOBBYING
Each Contractor and any Subcontractor that has a Contract or Subcontract exceeding $100,000 shall provide to the Recipient a completed Certification Regarding Lobbying pursuant to 40 CFR Part 34 (“Lobbying Certification”) in the form attached hereto as Attachment 10 consistent with the prescribed form provided in Appendix A to 40 CFR Part 34. The form provides a certification that the Contractor or Subcontractor will not expend appropriated federal funds to pay any person for influencing or attempting to influence an officer or employee of any agency, Member of Congress, officer or employee of Congress or any employee of any Member of Congress in accordance with the provisions of 40 CFR Part 34, and to maintain such certification for their own records. It is noted that disbursement of funds may be withheld until the Lobbying Certification form has been received by the Recipient.
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SECTION 4 PROGRAM CONTRACT REQUIREMENT DECISION TREE
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SECTION 5 SUMMARY OF CONTRACTOR REQUIREMENTS FOR SRF-FUNDED PROJECTS
Forms can be found as attachments to this document or online at www.efc.ny.gov/MWBE
Forms should be submitted electronically via email or through EFC’s dropbox
Refer to Part 3 To be submitted with this bid: Guidance Section ☐ EEO Policy Statement Section 1 ☐ Documented Proof that EPA Form 6100-2 - DBE Subcontractor Section 1 Participation Form was given to MWBE Subcontractors ☐ EPA Form 6100-3 - DBE Subcontractor Performance Form Section 1 ☐ EPA Form 6100-4 - DBE Subcontractor Utilization Form Section 1 ☐ Lobbying Certification Section 3
To be submitted prior to or upon Contract award: ☐ Executed Contracts, Subcontracts, agreements, and purchase orders ☐ MWBE Utilization Plan and/or Waiver Request Section 1 ☐ EEO Staffing Plan Section 1
Ongoing documentation & tasks: ☐ EEO Workforce Utilization Report Section 1 ☐ Submit Monthly MWBE Reports to MBO Section 1 ☐ Maintain proof of payments for MWBE Subcontractors Section 1 ☐ Ensure that all Subcontracts contain Part 2: Required Contract Language
Bid Packet (For Treatment Works, Drinking Water and Water Grant projects funded with NYS CWSRF or DWSRF) SRF Non-Construction Contracts Page 19 of 19 Revision Date: 10/1/2016
Attachment 1 New York State Environmental Facilities Corporation EQUAL EMPLOYMENT OPPORTUNITY POLICY STATEMENT NEW YORK STATE REVOLVING FUND (SRF)
I, ______, am the authorized representative of ______. Name of Representative Name of Contractor/Service Provider I hereby certify that ______will abide by the equal employment Name of Contractor/Service Provider opportunity (EEO) policy statement provisions outlined below.
(i) The Contractor will not discriminate on the basis of race, creed, color, national origin, sex, age, disability, or marital status against any employee or applicant for employment, will undertake or continue existing programs of affirmative action to ensure that minority group members and women are afforded equal employment opportunities without discrimination and will make and document its conscientious and active efforts to employ and utilize minority group members and women in its work force on Contracts relating to SRF projects.
(ii) The Contractor shall state in all solicitations or advertisements for employees that, in the performance of the Contract relating to this SRF project, all qualified applicants will be afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability or marital status.
(iii) 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.
(iv) The Contractor shall comply with the provisions of the Human Rights Law (Article 15 of the Executive Law), including those relating to non-discrimination on the basis of prior criminal conviction and prior arrest, and with all other State and federal statutory and constitutional non-discrimination provisions, including Titles VI and VII of the Civil Rights Act of 1964, 40 CFR Part 7, 41 CFR Part 60-1 Subpart A, and 41 CFR Part 60-4. The Contractor and Subcontractors shall not discriminate against any employee or applicant for employment because of race, creed (religion), color, sex, national origin, sexual orientation, military status, age, disability, predisposing genetic characteristic, marital status or domestic violence victim status.
(v) The Contractor will include the provisions of subdivisions (i) through (iv) in every Subcontract in such a manner that the requirements of these subdivisions will be binding upon each Subcontractor as to work in connection with the Contract.
X
Contractor/Service Provider Representative
EEO Policy Statement EFC Bid Packet (Revision Date: 10/1/2016) 1 Attachment 2 New York State Environmental Facilities Corporation Equal Employment Opportunity (EEO) Staffing Plan
INSTRUCTIONS General Instructions: All Service Providers (including legal, engineering, financial advisory or other professional services, and labor) and each subcontractor identified in the bid or proposal must complete an EEO Staffing Plan and submit it no later than the date of execution of the contract to the Recipient’s Minority Business Officer (MBO). Where the work force to be utilized in the performance of the contract can be separated out from the contractor's or subcontractors’ total work force, the contractor shall complete this form only for the anticipated work force to be utilized on the contract. Where the work force to be utilized in the performance of the contract cannot be separated out from the contractor's or subcontractors’ total work force, the contractor shall complete this form for the contractor's or subcontractors’ total work force.
RACE/ETHNIC IDENTIFICATION: Definitions of race and ethnicity for purposes of completion of this form are as follows: Hispanic or Latino - A person having origins in Cuba, Mexico, Puerto Rico, South or Central America. White - A person having origins of Europe, the Middle East, or North Africa. Black or African-American - A person having origins in any of the black racial groups of Africa. Native Hawaiian or Other Pacific Islander- A person having origins in any of the peoples of Hawaii, Guam, Samoa, or other Pacific Islands. Asian - A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian Subcontinent American Indian or Alaska Native – A person having origins in any of the original peoples of North, Central, and South America and who maintain tribal affiliation or community attachment. Two or More Races - All persons who identify with more than one of the above (Non-Hispanic or Latino) five races.
DESCRIPTION OF JOB CATEGORIES The major job categories used in EEO Staffing Plan are listed below.
Senior Level Officials and Managers - Individuals residing in the highest levels of organizations who plan, direct and formulate policies, set strategy and provide the overall direction of enterprises/organizations for the development and delivery of products or services. Mid-Level Officials and Managers - Individuals who receive directions from the Senior Level management and serve as managers, other than those who serve as Senior Level Officials and Managers, including those who oversee and direct the delivery of products, services or functions at group, regional or divisional levels of organizations Professionals - Most jobs in this category require bachelor and graduate degrees, and/or professional certification. In some instances, comparable experience may establish a person’s qualifications. Technicians - Jobs in this category include activities that require applied scientific skills, usually obtained by post-secondary education of varying lengths, depending on the particular occupation, recognizing that in some instances additional training, certification, or comparable experience is required. Sales Workers - These jobs include non-managerial activities that wholly and primarily involve direct sales. Administrative Support Workers - These jobs involve non-managerial tasks providing administrative and support assistance, primarily in office settings. Skilled Craftsmen – Includes higher skilled occupations in construction (building trades craft workers and their formal apprentices) and natural resource extraction workers. Examples of these types of positions include: boilermakers; brick and stone masons; carpenters; electricians; painters Operatives Semi-Skilled - Most jobs in this category include intermediate skilled occupations and include workers who operate machines or factory-related processing equipment. Most of these occupations do not usually require more than several months of training. Examples include: textile machine workers;
EEO Staffing Plan EFC Bid Packet (Revision Date: 10/1/2016) 1 Attachment 2 New York State Environmental Facilities Corporation Equal Employment Opportunity (EEO) Staffing Plan Laborers & Helpers - Jobs in this category include workers with more limited skills who require only brief training to perform tasks that require little or no independent judgment. Service Workers - Jobs in this category include food service, cleaning service, personal service, and protective service activities.
See the bid packet at www.efc.ny.gov/mwbe or your designated MBO for further guidance.
SECTION 1: MUNICIPAL INFORMATION Recipient/Municipality: County: SRF Project No.: GIGP/EPG No.: Contract ID: Registration No. (NYC only): Minority Business Officer: Email: Phone #: Address of MBO: Signature of MBO: Date: I certify that the information submitted herein is true, accurate and complete to the best of my knowledge and belief.
SECTION 2: EEO STAFFING PLAN (Service Providers Only) Municipality: County: SRF Project No.: Contract ID: Service Provider Name: Date:
Report Includes – Please select one from the options below: Reporting Entity – Please select one from the options below: Workforce utilized on this contract Prime Service Provider Contractor/subcontractor’s total workforce Subcontractor
Hispanic/ Not Hispanic or Latino Latino Male Female
Job Categories Native Native Native Native Black/ Two or Black/ Two or Hawaiian/ American/ Hawaiian/ American/ Male Female White African Asian More White African Asian More Other Pacific Alaska Other Pacific Alaska American Races American Races Islander Native Islander Native
Senior Level 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Officials/Managers Mid-Level 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Officals/Managers
EEO Staffing Plan EFC Bid Packet (Revision Date: 10/1/2016) 2 Attachment 2 New York State Environmental Facilities Corporation Equal Employment Opportunity (EEO) Staffing Plan
Hispanic/ Not Hispanic or Latino Latino Male Female
Job Categories Native Native Native Native Black/ Two or Black/ Two or Hawaiian/ American/ Hawaiian/ American/ Male Female White African Asian More White African Asian More Other Pacific Alaska Other Pacific Alaska American Races American Races Islander Native Islander Native
Professionals 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Technicians 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Sales Workers 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Administrative Support 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Workers Skilled Craftsmen 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Operatives Semi-Skilled 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Laborers & Helpers 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Service Workers 0 0 0 0 0 0 0 0 0 0 0 0 0 0
TOTAL 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Journeypersons Apprentices Trainees
Electronic Signature of Service Provider: I certify that the information submitted herein is true, accurate and complete to the best of my knowledge. Date: Name (Please Type):
EEO Staffing Plan EFC Bid Packet (Revision Date: 10/1/2016) 3 Attachment 3 NYS Environmental Facilities Corporation Equal Employment Opportunity (EEO) Workforce Employment Utilization Report
Municipality: County: SRF Project No.: Contract ID: Contractor/Service Provider: Date:
Report Includes – Please select one from the options below: Construction Contracts - Report the hours of contractor’s and ALL subcontractor’s employees who worked on contract activities during the month
Service Provider Contracts - Report the Actual Contractor/subcontractor’s workforce (# of personnel) utilized on this contract.
Hispanic/ Non-Hispanic / Latino Latino Male Female
Job Categories Native Native Native Native Black/ Two or Black/ Two or Hawaiian/ American/ Hawaiian/ American/ Male Female White African Asian More White African Asian More Other Pacific Alaska Other Pacific Alaska American Races American Races Islander Native Islander Native
Senior Level Officials/Managers Mid-Level Officals/Managers Professionals Technicians Sales Workers Administrative Support Workers Skilled Craftsmen Operatives Semi-Skilled Laborers & Helpers Service Workers
TOTAL 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Journeypersons Apprentices Trainees Service Provider Contracts Only: There are no changes to the workforce utilized on this contract since the last EEO Workforce Utilization Report Electronic Signature of Contractor: I certify that the information submitted herein is true, accurate and complete to the best of my knowledge. Date: Name (Please Type):
EEO Workforce Report Form EFC Bid Packet (Revision Date: 10/1/2016) 1 Attachment 3 NYS Environmental Facilities Corporation Equal Employment Opportunity (EEO) Workforce Employment Utilization Report INSTRUCTIONS General Instructions: All Contractors and each Subcontractor identified in the approved MWBE Utilization Plan must complete an EEO Workforce Utilization Report and submit it to the MBO on a monthly basis for construction contracts and on a quarterly basis for service provider contracts. Separate forms shall be completed by the Contractor and any Subcontractor. Where the work force to be utilized in the performance of the contract can be separated out from the contractor's or subcontractors’ total workforce, the contractors shall complete this form only for the actual work force utilized on the contract. Where the workforce utilized in the performance of the contract cannot be separated out from the contractor's or subcontractors’ total workforce, the contractors shall complete this form for the contractor's or subcontractors’ total workforce.
Construction Contracts: Report the hours of contractor’s and ALL subcontractors’ employees who worked on contract activities for each month.
RACE/ETHNIC IDENTIFICATION: Definitions of race and ethnicity for purposes of completion of this form are as follows: Hispanic or Latino - A person having origins in Cuba, Mexico, Puerto Rico, South or Central America. White - A person having origins of Europe, the Middle East, or North Africa. Black or African-American - A person having origins in any of the black racial groups of Africa. Native Hawaiian or Other Pacific Islander- A person having origins in any of the peoples of Hawaii, Guam, Samoa, or other Pacific Islands. Asian - A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian Subcontinent American Indian or Alaska Native - Origins in any of the original peoples of North, Central, and South America and who maintain tribal affiliation or community attachment Two or More Races - All persons who identify with more than one of the above five races.
DESCRIPTION OF JOB CATEGORIES The major job categories used in EEO Workforce Utilization Report are listed below.
Senior Level Officials and Managers - Individuals residing in the highest levels of organizations who plan, direct and formulate policies, set strategy and provide the overall direction of enterprises/organizations for the development and delivery of products or services. Mid-Level Officials and Managers - Individuals who receive directions from the Senior Level management and serve as managers, other than those who serve as Senior Level Officials and Managers, including those who oversee and direct the delivery of products, services or functions at group, regional or divisional levels of organizations Professionals - Most jobs in this category require bachelor and graduate degrees, and/or professional certification. In some instances, comparable experience may establish a person’s qualifications. Technicians - Jobs in this category include activities that require applied scientific skills, usually obtained by post-secondary education of varying lengths, depending on the particular occupation, recognizing that in some instances additional training, certification, or comparable experience is required. Sales Workers - These jobs include non-managerial activities that wholly and primarily involve direct sales. Administrative Support Workers - These jobs involve non-managerial tasks providing administrative and support assistance, primarily in office settings. Skilled Craftsmen – Includes higher skilled occupations in construction (building trades craft workers and their formal apprentices) and natural resource extraction workers. Examples of these types of positions include: boilermakers; brick and stone masons; carpenters; electricians; painters Operatives Semi-Skilled - Most jobs in this category include intermediate skilled occupations and include workers who operate machines or factory-related processing equipment. Most of these occupations do not usually require more than several months of training. Examples include: textile machine workers; Laborers & Helpers - Jobs in this category include workers with more limited skills who require only brief training to perform tasks that require little or no independent judgment. Service Workers - Jobs in this category include food service, cleaning service, personal service, and protective service activities.
EEO Workforce Report Form EFC Bid Packet (Revision Date: 10/1/2016) 2 Attachment 4 New York State Environmental Facilities Corporation Monthly Minority- & Women- Owned Business Enterprise (MWBE) Contractor Compliance Report (“Monthly MWBE Report”) Instructions: Contractors are to complete the report in Word version and email to the SRF Recipient’s Minority Business Officer (“MBO”) on a monthly basis. If you require additional pages, you may find them on EFC’s MWBE web page at www.efc.ny.gov/mwbe. All MWBE Subcontractors for this contract MUST be listed on the form regardless of whether they were paid this month. Please save Report as “MReport – (Project No). – (Municipality) – (Firm Name) – (Date)” and send the Word version of this document. Proofs of payment in the amounts shown below must be transmitted to the MBO with the report.
Municipality: County: Contract ID: Month: Year: SRF Project No.: GIGP/EPG No: Registration No. (NYC only): Date all MWBE subs paid in full: Prime Contractor/Service Provider: Award Date: Start Date:
Signature of Contractor: I certify that the information submitted herein is true, accurate and complete to the best of my knowledge and belief. Date: Last Month’s Contract MWBE Eligible Amt: $ EFC MWBE Goals Total Paid to Prime Amt: $ (Goals are applied to this amount and MBE: % MBE Amt: $ Total Paid this Month: $ Revised Contract Amt: includes eligible change orders, WBE: % WBE Amt: $ $ amendments & waivers) Total: % Total Amt: $ Total Paid to Date: $ NYS Certified M/WBE Contractor & Please Specify Any Subcontractor Total Amount Payments this Previous Total Payments Made to Subcontractor Revisions this Month. Original Revised Month Payments Date Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Supplier Other: Subcontract Amt. DECREASED Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED
Monthly MWBE Report Form EFC Bid Packet (Revision Date: 10/1/2016) 1 Attachment 4 New York State Environmental Facilities Corporation Monthly Minority- & Women- Owned Business Enterprise (MWBE) Contractor Compliance Report (“Monthly MWBE Report”)
Subcontractor Contract NYS Certified M/WBE Contractor & Please Specify Any Amount Payments this Previous Total Payments Made to Subcontractor Revisions this Month. Original Revised Month Payments Date Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED
Monthly MWBE Report Form EFC Bid Packet (Revision Date: 10/1/2016) 2 Attachment 4 New York State Environmental Facilities Corporation Monthly Minority- & Women- Owned Business Enterprise (MWBE) Contractor Compliance Report (“Monthly MWBE Report”)
NYS Certified M/WBE Contractor & Please Specify Any Subcontractor Total Amount Payments this Previous Total Payments Made to Subcontractor Revisions this Month. Original Revised Month Payments Date Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED Name: Subcontractor is REMOVED Fed. Employer ID#: NEW Subcontractor
Select Only One: MBE WBE Subcontract Amt. INCREASED Other: Subcontract Amt. DECREASED Additional Pages can be found at www.nysefc.org
TOTAL PLEASE EXPLAIN ANY REVISIONS (Change orders over $25K may require that good faith efforts be made to obtain additional MWBE participation) :
Monthly MWBE Report Form EFC Bid Packet (Revision Date: 10/1/2016) 3 Attachment 5 New York State Environmental Facilities Corporation Minority- & Women- Owned Business Enterprise (MWBE) Utilization Plan
Instructions for Contractors & Service Providers:
Contractors and Service Providers must complete Sections 2 and 3. Submit the completed, signed (electronic signature box checked and dated) form in Microsoft Word format to the SRF Recipient’s designated Minority Business Officer (MBO) no later than the date of contract execution. Incomplete forms will be found deficient. If more than 10 subcontractors are used, additional pages for Section 3 can be found in the form Additional Utilization Plan Section 3. If the prime contract is being performed by the parties to a Joint Venture, Teaming Agreement, or Mentor-Protégé Agreement that includes a certified MWBE, please contact EFC for assistance. MWBE firms must be certified by the NYS Empire State Development Corporation (ESD) in order to be counted towards satisfaction of MWBE participation goals. The utilization of certified MWBEs for non-commercially useful functions may not be counted towards utilization of certified MWBEs in the Utilization Plan.
See the Bid Packet at www.efc.ny.gov/mwbe or consult your designated MBO for further guidance. Instructions for Minority Business Officers (MBO):
The MBO must complete Section 1. The MBO may designate an Authorized Representative to complete and submit quarterly payment reports on its behalf, and, if so designated, the MBO’s Authorized Representative must also complete Section 1. The Authorized Representative may only submit quarterly payment reports on behalf of the MBO and may not submit any other required forms or reports for the MBO. The MBO must complete Section 1 even if designating an Authorized Representative. Submit the completed, signed (electronic signature box checked and dated) form in Microsoft Word format via e-mail to your EFC MWBE Representative.
The subject heading of the e-mail to the EFC MWBE Representative should follow the format “UP, SRF Number, Contractor.” EFC will review the Utilization Plan and notify the MBO via e-mail of its acceptance or denial.
Within 10 days of EFC’s acceptance of a Utilization Plan, EFC will post the approved Utilization Plan on the EFC website.
MWBE Utilization Plan EFC Bid Packet (Revision Date: 10/1/2016) 1 Attachment 5 New York State Environmental Facilities Corporation Minority- & Women- Owned Business Enterprise (MWBE) Utilization Plan
SECTION 1: MUNICIPAL INFORMATION Recipient/Municipality: County: SRF Project No.: GIGP/EPG No.: Contract ID: Registration No. (NYC only): Minority Business Officer: Email: Phone #: Address of MBO: Electronic Signature of MBO: Date: I certify that the information submitted herein is true, accurate and complete to the best of my knowledge and belief. Complete if applicable: Authorized Representative: Title: Authorized Rep. Company: Email: Phone #: Electronic Signature of Authorized Rep.: Date: I certify that the information submitted herein is true, accurate and complete to the best of my knowledge and belief.
SECTION 2: PRIME CONTRACTOR / SERVICE PROVIDER INFORMATION
Firm Name: Contract Type: Construction Other Services Prime Firm is Certified as: MBE WBE N/A Other: Please repeat information in the Utilization Plan below (Section 3). If dual certified, you must select either MBE or WBE. Address: Phone #: Fed. Employer ID #: Description of Work: Award Date: Start Date: Completion Date: MWBE GOAL Total PROPOSED MWBE Participation Total Contract Amount: $ MBE: % $ MBE: % $ MWBE Eligible Contract Amount: $ (MWBE Goals are applied to this amount and includes all change orders, WBE: % $ WBE: % $ amendments, & waivers) Total: % $ Total: % $
MWBE Utilization Plan EFC Bid Packet (Revision Date: 10/1/2016) 2 Attachment 5 New York State Environmental Facilities Corporation Minority- & Women- Owned Business Enterprise (MWBE) Utilization Plan
SECTION 3: M/WBE SUBCONTRACTOR INFORMATION This Submittal is: The First/Original Utilization Plan Revised Utilization Plan #: NYS Certified M/WBE Subcontractor Info Contract Amount: For EFC Use: MBE ($) WBE ($) Name: Fed. Employer ID#: Address: Phone #: Scope of Work: Email: Select Only One: MBE WBE Other: Start Date: Full Contract Amount: $ Completion Date:
Name: Fed. Employer ID#: Address: Phone #: Scope of Work: Email: Select Only One: MBE WBE Other: Start Date: Full Contract Amount: $ Completion Date:
Name: Fed. Employer ID#: Address: Phone #: Scope of Work: Email: Select Only One: MBE WBE Other: Start Date: Full Contract Amount: $ Completion Date:
Name: Fed. Employer ID#: Address: Phone #: Scope of Work: Email: Select Only One: MBE WBE Other: Start Date: Full Contract Amount: $ Completion Date:
MWBE Utilization Plan EFC Bid Packet (Revision Date: 10/1/2016) 3 Attachment 5 New York State Environmental Facilities Corporation Minority- & Women- Owned Business Enterprise (MWBE) Utilization Plan
SECTION 3: M/WBE SUBCONTRACTOR INFORMATION continued Name: Fed. Employer ID#: Address: Phone #: Scope of Work: Email: Select Only One: MBE WBE Other: Start Date: Full Contract Amount: $ Completion Date:
Name: Fed. Employer ID#: Address: Phone #: Scope of Work: Email: Select Only One: MBE WBE Other: Start Date: Full Contract Amount: $ Completion Date:
Name: Fed. Employer ID#: Address: Phone #: Scope of Work: Email: Select Only One: MBE WBE Other: Start Date: Full Contract Amount: $ Completion Date:
Name: Fed. Employer ID#: Address: Phone #: Scope of Work: Email: Select Only One: MBE WBE Other: Start Date: Full Contract Amount: $ Completion Date:
SIGNATURE Electronic Signature of Contractor: I certify that the information submitted herein is true, accurate and complete to the best of my knowledge and that all MWBE subcontractors will perform a commercially useful function. Date: Name (Please Type):
MWBE Utilization Plan EFC Bid Packet (Revision Date: 10/1/2016) 4 Attachment 6 New York State Environmental Facilities Corporation Minority & Women Owned Business Enterprise (MWBE) Waiver Request Form
Instructions for Contractors & Service Providers: Contractors and Service Providers must complete Sections 2, 3, and 4. Submit the completed, signed (electronic signature box checked and dated) form in Microsoft Word format to the SRF Recipient’s designated Minority Business Officer (MBO). Incomplete forms will be found deficient. See the Bid Packet at www.efc.ny.gov/mwbe or consult your designated MBO for further guidance. Instructions for Minority Business Officers (MBO): The MBO must complete Section 1. Submit the completed, signed (electronic signature box checked and dated) form in Microsoft Word format via e-mail to your EFC MWBE Representative. The subject heading of the e-mail to the EFC MWBE Representative should follow the format “Waiver Request, SRF Number, Contractor.” EFC will review and notify the MBO via e-mail of its acceptance or denial. If a partial MWBE waiver is requested, an MWBE Utilization Plan must also be submitted for the amount of proposed MWBE participation.
SECTION 1: MUNICIPAL INFORMATION Recipient/Municipality: County: SRF Project No.: GIGP/EPG No.: Contract ID: Registration No. (NYC only): Minority Business Officer (MBO): Email: Phone #: Address of MBO: Signature of MBO: Date: I certify that the information submitted herein is true, accurate and complete to the best of my knowledge and belief.
SECTION 2: PRIME CONTRACTOR / SERVICE PROVIDER INFORMATION
Firm Name: Contract Type: Construction Other Services
Prime Firm is Certified as: MBE WBE N/A Other: Address: Phone #: Fed. Employer ID #: Contact Information of Firm Representative Authorized to Discuss Waiver Request: Name: Title: Phone #: E-mail: Description of Work: EFC MWBE GOAL Total Award Date: Start Date: Completion Date: MBE: % $ Total Contract Amount: $ WBE: % $ MWBE Eligible Contract Amount: $ (MWBE Goals are applied to this amount and includes all change orders, amendments, Total: % $ & waivers)
MWBE Waiver Request Form EFC Bid Packet (Revision Date: 10/1/2016) 1 Attachment 6 New York State Environmental Facilities Corporation Minority & Women Owned Business Enterprise (MWBE) Waiver Request Form
SECTION 3: TYPE OF MWBE WAIVER REQUESTED 1. Full Waiver (No MWBE participation)
2. Partial Waiver (Less than the MWBE goals; indicate below the proposed MWBE participation)
PROPOSED MWBE Participation
MBE: % $
WBE: % $
Total: % $
3. Specialty Equipment/Services Waiver (Must be of SIGNIFICANT cost - list of equipment and cost must be attached in addition to the supporting documentation outlined below)
SECTION 4: SUPPORTING DOCUMENTATION To be considered, the Request for Waiver Form must be accompanied by the documentation requested in items 1 – 9, as listed below. If a Specialty Equipment Waiver is requested, it must be accompanied by the documentation requested in items 1 - 13. If a Specialty Services Waiver is requested, it must be accompanied by the items requested in items 1 – 9 and item 14. Copies of the following information and all relevant supporting documentation must be submitted along with the request. Please contact EFC for assistance, including sample documentation. 1. A letter of explanation setting forth your basis for requesting a partial or total waiver and detailing the good faith efforts that were made.
2. Copies of advertisements in any general circulation, trade association, and minority- and women-oriented publications in which you solicited MWBEs for the purposes of complying with your participation goals, with the dates of publication.
3. Screenshots of search results (by business description or commodity code) from Empire State Development Corporation’s (ESD) MWBE Directory of all certified MWBEs that were solicited for purposes of complying with your MWBE participation goals.
4. Copies of faxes, letters, or e-mails sent to MWBE firms to solicit participation and their responses.
5. A log of solicitation results, consisting of the list of MWBE firms solicited for the contract and the outcome of the solicitations. The log should be broken out into separate areas for each task that is solicited (e.g., trucking, materials, electricians) and clearly provide a rationale for firms included on the completed Utilization Plan as well as for those not chosen. The log should show: that each MWBE firm was contacted twice by two different methods (e.g., fax and phone); who was spoken to; what was said; and the final outcome of the solicitation.
6. A description of any contract documents, plans, or specifications made available to MWBEs for purposes of soliciting their bids and the date and manner in which these documents were made available. Specifically, include information on the scope of work in the contract and a breakout of tasks or equipment, such as
MWBE Waiver Request Form EFC Bid Packet (Revision Date: 10/1/2016) 2 Attachment 6 New York State Environmental Facilities Corporation Minority & Women Owned Business Enterprise (MWBE) Waiver Request Form a schedule of values for a construction contract or a proposal or excerpt from a professional services agreement.
7. Documentation of any negotiations between you, the Contractor, and the MWBEs undertaken for purposes of complying with your MWBE participation goals.
8. Any other information you deem relevant which may help us in evaluating your request for a waiver. Examples may include sign-in sheets from any pre-bid meetings where MWBE firms were invited, attendance at MWBE forums, etc.
9. EFC and the MBO reserve the right to request additional information and/or documentation.
Additional Documentation for Requests for Specialty Equipment Waivers:
10. Copies of the appropriate pages of the technical specification related to the equipment showing the choices for manufacturers or other information that limits the choice of vendor.
11. Letter, e-mail or screenshot of website from the manufacturer listing their distributors in NYS and the locations.
12. Screenshots of ESD’s MWBE Directory searches for the manufacturer and distributor showing that they are not found in the Directory.
13. An invoice or purchase order showing the value of the equipment.
Additional Documentation for Requests for Specialty Service Waivers:
14. A letter of explanation containing information about the scope of work and why no MWBE firms could be subcontracted to provide that service.
Note: Unless a Total Waiver has been granted, Firms will be required to submit all reports and documents pursuant to the provisions set forth in the procurement and/or contract, as deemed appropriate by EFC, to determine MWBE compliance. In cases where EFC accepts a full or partial waiver of MWBE participation goals, the waiver request will be posted to EFC’s website.
SIGNATURE Electronic Signature of Contractor: I certify that the information submitted herein is true, accurate and complete to the best of my knowledge. Date: Name: (Please Type):
MWBE Waiver Request Form EFC Bid Packet (Revision Date: 10/1/2016) 3 Attachment 7 United States Environmental Protection Agency Form 6100-2 DBE Subcontractor Participation Form
OMB Control No: 2090-0030 Approved: 8/13/2013 Approval Expires: 8/31/2015
Disadvantaged Business Enterprise (DBE) Program DBE Subcontractor Participation Form
An EPA Financial Assistance Agreement Recipient must require its prime contractors to provide this form to its DBE subcontractors. This form gives a DBE1 subcontractor2 the opportunity to describe work received and/or report any concerns regarding the EPA-funded project (e.g., in areas such as termination by prime contractor, late payments, etc.). The DBE subcontractor can, as an option, complete and submit this form to the EPA DBE Coordinator at any time during the project period of performance.
Subcontractor Name Project Name
Bid/ Proposal No. Assistance Agreement ID No. (if known) Point of Contact
Address
Telephone No. Email Address
Prime Contractor Name Issuing/Funding Entity:
Contract Description of Work Received from the Prime Contractor Involving Amount Received Item Construction, Services , Equipment or Supplies by Prime Number Contractor
1 A DBE is a Disadvantaged, Minority, or Woman Business Enterprise that has been certified by an entity from which EPA accepts certifications as described in 40 CFR 33.204-33.205 or certified by EPA. EPA accepts certifications from entities that meet or exceed EPA certification standards as described in 40 CFR 33.202.
2 Subcontractor is defined as a company, firm, joint venture, or individual who enters into an agreement with a contractor to provide services pursuant to an EPA award of financial assistance.
EPA FORM 6100-2 (DBE Subcontractor Participation Form)
OMB Control No: 2090-0030 Approved: 8/13/2013 Approval Expires: 8/31/2015
Disadvantaged Business Enterprise (DBE) Program DBE Subcontractor Participation Form
Please use the space below to report any concerns regarding the above EPA-funded project: ______
Subcontractor Signature Print Name
Title Date
The public reporting and recordkeeping burden for this collection of information is estimated to average three (3) hours per response. Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques to the Director, Collection Strategies Division, U.S. Environmental Protection Agency (2822T), 1200 Pennsylvania Ave., NW, Washington, D.C. 20460. Include the OMB control number in any correspondence. Do not send the completed form to this address.
EPA FORM 6100-2 (DBE Subcontractor Participation Form)
Attachment 8 United States Environmental Protection Agency Form 6100-3 DBE Subcontractor Performance Form
OMB Control No: 2090-0030 Approved: 8/13/2013 Approval Expires: 8/31/2015
Disadvantaged Business Enterprise (DBE) Program DBE Subcontractor Performance Form
This form is intended to capture the DBE1 subcontractor’s2 description of work to be performed and the price of the work submitted to the prime contractor. An EPA Financial Assistance Agreement Recipient must require its prime contractor to have its DBE subcontractors complete this form and include all completed forms in the prime contractors bid or proposal package.
Subcontractor Name Project Name
Bid/ Proposal No. Assistance Agreement ID No. (if known) Point of Contact
Address
Telephone No. Email Address
Prime Contractor Name Issuing/Funding Entity:
Contract Item Number Description of Work Submitted to the Prime Contractor Price of Work Involving Construction, Services , Equipment or Supplies Submitted to the Prime Contractor
DBE Certified By: ____ DOT ____ SBA Meets/ exceeds EPA certification standards? ____ Other: ______YES ____ NO ____ Unknown
1 A DBE is a Disadvantaged, Minority, or Woman Business Enterprise that has been certified by an entity from which EPA accepts certifications as described in 40 CFR 33.204-33.205 or certified by EPA. EPA accepts certifications from entities that meet or exceed EPA certification standards as described in 40 CFR 33.202.
2 Subcontractor is defined as a company, firm, joint venture, or individual who enters into an agreement with a contractor to provide services pursuant to an EPA award of financial assistance.
EPA FORM 6100-3 (DBE Subcontractor Performance Form)
OMB Control No: 2090-0030 Approved: 8/13/2013 Approval Expires: 8/31/2015
Disadvantaged Business Enterprise (DBE) Program DBE Subcontractor Performance Form
I certify under penalty of perjury that the forgoing statements are true and correct. Signing this form does not signify a commitment to utilize the subcontractors above. I am aware of that in the event of a replacement of a subcontractor, I will adhere to the replacement requirements set forth in 40 CFR Part 33 Section 33.302 (c).
Prime Contractor Signature Print Name
Title Date
Subcontractor Signature Print Name
Title Date
The public reporting and recordkeeping burden for this collection of information is estimated to average three (3) hours per response. Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques to the Director, Collection Strategies Division, U.S. Environmental Protection Agency (2822T), 1200 Pennsylvania Ave., NW, Washington, D.C. 20460. Include the OMB control number in any correspondence. Do not send the completed form to this address.
EPA FORM 6100-3 (DBE Subcontractor Performance Form)
Attachment 9 United States Environmental Protection Agency Form 6100-4 DBE Subcontractor Utilization Form
OMB Control No: 2090-0030 Approved: 8/13/2013 Approval Expires: 8/31/2015
Disadvantaged Business Enterprise (DBE) Program DBE Subcontractor Utilization Form
This form is intended to capture the prime contractor’s actual and/or anticipated use of identified certified DBE1 subcontractors2 and the estimated dollar amount of each subcontract. An EPA Financial Assistance Agreement Recipient must require its prime contractors to complete this form and include it in the bid or proposal package. Prime contractors should also maintain a copy of this form on file.
Prime Contractor Name Project Name
Bid/ Proposal No. Assistance Agreement ID No. (if known) Point of Contact
Address
Telephone No. Email Address
Issuing/Funding Entity:
I have identified potential DBE ___ YES ___ NO certified subcontractors If yes, please complete the table below. If no, please explain:
Subcontractor Name/ Company Address/ Phone/ Email Est. Dollar Currently Company Name Amt DBE Certified?
Continue on back if needed
1 A DBE is a Disadvantaged, Minority, or Woman Business Enterprise that has been certified by an entity from which EPA accepts certifications as described in 40 CFR 33.204-33.205 or certified by EPA. EPA accepts certifications from entities that meet or exceed EPA certification standards as described in 40 CFR 33.202.
2 Subcontractor is defined as a company, firm, joint venture, or individual who enters into an agreement with a contractor to provide services pursuant to an EPA award of financial assistance. EPA FORM 6100-4 (DBE Subcontractor Utilization Form)
OMB Control No: 2090-0030 Approved: 8/13/2013 Approval Expires: 8/31/2015
Disadvantaged Business Enterprise (DBE) Program DBE Subcontractor Utilization Form
I certify under penalty of perjury that the forgoing statements are true and correct. Signing this form does not signify a commitment to utilize the subcontractors above. I am aware of that in the event of a replacement of a subcontractor, I will adhere to the replacement requirements set forth in 40 CFR Part 33 Section 33.302 (c).
Prime Contractor Signature Print Name
Title Date
The public reporting and recordkeeping burden for this collection of information is estimated to average three (3) hours per response. Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques to the Director, Collection Strategies Division, U.S. Environmental Protection Agency (2822T), 1200 Pennsylvania Ave., NW, Washington, D.C. 20460. Include the OMB control number in any correspondence. Do not send the completed form to this address.
EPA FORM 6100-4 (DBE Subcontractor Utilization Form)
Attachment 10 New York State Environmental Facilities Corporation CERTIFICATION REGARDING LOBBYING FOR CONTRACTS, GRANTS, LOANS, AND COOPERATIVE AGREEMENTS 40 CFR Part 34 SRF Project No.: ______
The undersigned certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
By: ______Name: ______Title: ______Date: ______Contract ID: ______
Lobbying Certification EFC Bid Packet (Revision Date: 10/1/2016) 1
NYS CWSRF Engineering Report Template
ATTACHMENT O 2016 CWSRF INTENDED USE PLAN
RFP TITLE: NR-STRUCT-DES - Design Services and Design Services During Construction for North River Wastewater Treatment Plant Structural Improvements Project PIN: 82617WP01396
Appendix G-1 Effective 10/1/2015
NYS CWSRF Engineering Report Template 2016 CWSRF INTENDED USE PLAN
16.0 - Appendix G: CWSRF Engineering Report Template
Appendix G-2 Effective 10/1/2015
NYS CWSRF Engineering Report Template Engineering Report Template New York State Clean Water State Revolving Fund
Effective October 1, 2015
❒ Required Engineering Report Components
□ 1. Problem Defined – Description of the existing system, condition & problems needing correction
□ 2. Flow and Organic Load – The existing, design average and peak flows and waste load
□ 3. Impact On Existing Wastewater Facilities – Include location map, history, financial status, waste/energy/water audits
□ 4. Project Description – A written description of the project and the need for the project
□ 5. Drawing/ Site Plan –Drawings of the project site and anticipated location of proposed facilities
□ 6. Site Information – Include topography, soils, geologic conditions, depth to bedrock, groundwater level, floodway or floodplain considerations
□ 7. Engineering Criteria – Engineering criteria to be used in design of the project shall be included. a. Description b. Design Criteria c. Map d. Environmental Impacts e. Land Requirements f. Potential Construction Problems g. Cost Estimates
□ 8. Alternatives Considered & Alternative Selection – Alternatives that comply with NYS’ Smart Growth Act and include green infrastructure, water efficiency, and energy efficiency attributes need to be considered. The report must also include a No Action alternative. Identify the selected alternative and discuss the reasons for selection. a. Life Cycle Cost Analysis b. Smart Growth Analysis c. Non‐Monetary Factors d. Preliminary Project Design e. Project Schedule f. Permit Requirements g. Sustainability Considerations h. Total Project Cost Estimate (Engineer’s Opinion of Probable Cost) i. Annual Operating Budget j. Short‐lived Asset Reserve
□ 9. Environmental Review – Include a discussion of relevant primary and secondary impacts. If appropriate, include mitigation measures taken and compliance with regulatory agencies.
□ 10. Summary – A concise summary of any additional pertinent information.
□ 11. Conclusion, Recommendations and Certification
Appendix G-3 Effective 10/1/2015
NYS CWSRF Engineering Report Template DETAILED DESCRIPTION OF ENGINEERING REPORT COMPONENTS
1. PROJECT DEFINED Describe the area under consideration. Service may be provided by a combination of central, cluster, and/or centrally managed individual facilities. The description should include information on the following:
a) Location: Provide scale maps and photographs of the project planning area and any existing service areas. Include legal and natural boundaries and a topographical map of the service area.
b) Environmental Resources Present: Provide maps, photographs, and/or a narrative description of environmental resources present in the project planning area that affect design of the project. Environmental review information that has already been developed to meet requirements of the New York State Environmental Quality Review Act (SEQRA) can be used here.
c) Population Trends: Provide U.S. Census or other population data (including references) for the service area for at least the past two decades if available. Population projections for the project planning area and concentrated growth areas should be provided for the project design period. Base projections on historical records with justification from recognized sources.
d) Community Engagement: Describe the utility's approach used (or proposed for use) to engage the community in the project planning process. The project planning process should help the community develop an understanding of the need for the project, the utility operational service levels required, funding and revenue strategies to meet these requirements, along with other considerations.
2. FLOW AND ORGANIC LOAD The anticipated design average and design peak flows and waste load for the existing and ultimate conditions must be established. The basis of the projection of initial and future flows and waste load must be included and must reflect the existing, or initial service area, and the anticipated future service area.
3. IMPACT ON EXISTING WASTEWATER FACILITIES Describe each part (e.g. processing unit) of the existing facility and include the following information:
a) Location Map: Provide a map and a schematic process layout of all existing facilities. Identify facilities that are no longer in use or abandoned. Include photographs of existing facilities.
b) History: Indicate when major system components were constructed, renovated, expanded, or removed from service. Discuss any component failures and the cause for the failure. Provide a history of any applicable violations of regulatory requirements.
c) Condition of Existing Facilities: Describe present condition; suitability for continued use; adequacy of current facilities; and their conveyance, treatment, storage, and disposal capabilities. Describe the existing capacity of each component. Describe and reference compliance with applicable federal, state, and local laws. Include a brief analysis of overall current energy consumption. Reference an asset management plan if applicable.
d) Financial Status of any Existing Facilities: (Note: Some agencies require the owner to submit the most recent audit or financial statement as part of the application package.) Provide information regarding current rate schedules, annual O&M cost (with a breakout of current
Appendix G-4 Effective 10/1/2015
NYS CWSRF Engineering Report Template energy costs), other capital improvement programs, and tabulation of users by monthly usage categories for the most recent typical fiscal year. Give status of existing debts and required reserve accounts.
e) Water/Energy/Waste Audits: If applicable to the project, discuss any water, energy, and/or waste audits which have been conducted and the main outcomes.
4. PROJECT DESCRIPTION Describe the needs in the following order of priority: a) Health, Sanitation, and Security: Describe concerns and include relevant regulations and correspondence from/to federal and state regulatory agencies. Include copies of such correspondence as an attachment to the Report.
b) Aging Infrastructure: Describe the concerns and indicate those with the greatest impact. Describe water loss, inflow and infiltration, treatment or storage needs, management adequacy, inefficient designs, and other problems. Describe any safety concerns.
c) Reasonable Growth: Describe the reasonable growth capacity that is necessary to meet needs during the planning period. Facilities proposed to be constructed to meet future growth needs should generally be supported by additional revenues. Consideration should be given to designing for phased capacity increases. Provide number of new customers committed to this project.
5. DRAWING/ SITE PLAN Drawings identifying the site of the project and anticipated location and alignment of proposed facilities are required.
6. SITE INFORMATION Project site information should include topography, soils, geologic conditions, depth to bedrock, groundwater level, floodway considerations, and other pertinent site information.
7. ENGINEERING CRITERIA This section should contain a description of the alternatives that were considered in planning a solution to meet the identified needs. Documentation of alternatives considered is often a Report weakness. Alternative approaches to ownership and management, system design (including resource efficient or green alternatives), and sharing of services, including various forms of partnerships, should be considered. In addition, the following alternatives should be considered, if practicable: building new centralized facilities, optimizing the current facilities (no construction), developing centrally managed decentralized systems, including small cluster or individual systems, and developing an optimum combination of centralized and decentralized systems. Alternatives should be consistent with those considered in the NEPA, or state equivalent, environmental review. Technically infeasible alternatives that were considered should be mentioned briefly along with an explanation of why they are infeasible, but do not require full analysis. For each technically feasible alternative, the description should include the following information:
a) Description: Describe the facilities associated with every technically feasible alternative. Describe source, conveyance, treatment, storage and distribution facilities for each alternative. A feasible system may include a combination of centralized and decentralized (on-site or cluster) facilities.
b) Design Criteria: State the design parameters used for evaluation purposes. These parameters should comply with federal, state, and agency design policies and regulatory requirements. Appendix G-5 Effective 10/1/2015
NYS CWSRF Engineering Report Template
c) Map: Provide a schematic layout map to scale and a process diagram if applicable. If applicable, include future expansion of the facility.
d) Environmental Impacts: Provide information about how the specific alternative may impact the environment. Describe only those unique direct and indirect impacts on floodplains, wetlands, other important land resources, endangered species, historical and archaeological properties, etc., as they relate to each specific alternative evaluated. Discuss mitigation measures required or identify no mitigation is necessary. Include generation and management of residuals and wastes.
e) Land Requirements: Identify sites and easements required. Further specify whether these properties are currently owned, to be acquired, leased, or have access agreements.
f) Potential Construction Problems: Discuss concerns such as subsurface rock, high water table, limited access, existing resource or site impairment, or other conditions which may affect cost of construction or operation of facility.
g) Cost Estimates: Provide cost estimates for each alternative, including a breakdown of the following costs associated with the project: construction, non-construction, and annual O&M costs. A construction contingency should be included as a non-construction cost. Cost estimates should be included with the descriptions of each technically feasible alternative. O&M costs should include a rough breakdown by O&M category (see example below) and not just a value for each alternative. Information from other sources, such as the recipient's accountant or other known technical service providers, can be incorporated to assist in the development of this section. The cost derived will be used in the life cycle cost analysis described in Section 8 a.
Example O&M Cost Estimate Personnel (i.e. Salary, Benefits, Payroll Tax, Insurance, T raining) Administrative Costs (e.g. office supplies, printing, etc.) Water Purchase or Waste Treatment Costs Insurance Energy Cost (Fuel and/or Electrical) Process Chemical Monitoring & Testing Short Lived Asset Maintenance/Replacement* Professional Services Residuals Disposal * See Appendix A for example list
8. ALTERNATIVES CONSIDERED AND ALTERNATIVE SELECTION Selection of an alternative is the process by which data from each alternative considered is analyzed in a systematic manner to identify a recommended alternative. The analysis should include consideration of both life cycle costs and non-monetary factors (i.e. triple bottom line analysis: financial, social, and environmental). Smart Growth Alternatives, Green Infrastructure Alternatives and the potential for efficient water use, reuse, recapture, and conservation, and energy conservation need to be considered and documented in the engineering report along with an explanation of their cost and effectiveness. The reasons for selection of the alternative, including any lift station sites, feasibility, and how the project fits into a long term plan, should be discussed. The engineer should include a recommendation for which alternative(s) should be
Appendix G-6 Effective 10/1/2015
NYS CWSRF Engineering Report Template implemented. This section should contain a fully developed description of the proposed project based on the preliminary description under the evaluation of alternatives. Include a schematic for any treatment processes, a layout of the system, and a location map of the proposed facilities. At least the following information should be included as applicable to the specific project:
a) Life Cycle Cost Analysis: A life cycle present worth cost analysis (an engineering economics technique to evaluate present and future costs for comparison of alternatives) should be completed to compare the technically feasible alternatives. Do not leave out alternatives because of anticipated costs; let the life cycle cost analysis show whether an alternative may have an acceptable cost. This analysis should meet the following requirements and should be repeated for each technically feasible alternative. Several analyses may be required if the project has different aspects, such as one analysis for different types of collection systems and another for different types of treatment.
1. The analysis should convert all costs to present day dollars; 2. The planning period to be used is recommended to be 20 years, but may be any period determined reasonable by the engineer and concurred on by the state or federal agency; 3. The discount rate to be used should be the "real" discount rate taken from Appendix C of OMB circular A-94 and found at (http://www.whitehouse.gov/omb/circulars_a094); 4. The total capital cost (construction plus non-construction costs) should be included; 5. Annual O&M costs should be converted to present day dollars using a uniform series present worth (USPW) calculation; 6. The salvage value of the constructed project should be estimated using the anticipated life expectancy of the constructed items using straight line depreciation calculated at the end of the planning period and converted to present day dollars; 7. The present worth of the salvage value should be subtracted from the present worth costs; 8. The net present value (NPV) is then calculated for each technically feasible alternative as the sum of the capital cost (C) plus the present worth of the uniform series of annual O&M (USPW (O&M)) costs minus the single payment present worth of the salvage value (SPPW(S)): NPV = C + USPW (O&M) - SPPW (S) 9. A table showing the capital cost, annual O&M cost, salvage value, present worth of each of these values, and the NPV should be developed for state or federal agency review. All factors (major and minor components), discount rates, and planning periods used should be shown within the table; 10. Short lived asset costs (See Appendix A for examples) should also be included in the life cycle cost analysis if determined appropriate by the consulting engineer or agency. Life cycles of short lived assets should be tailored to the facilities being constructed and be based on generally accepted design life. Different features in the system may have varied life cycles.
b) Smart Growth Analysis: For each alternative considered, discuss compliance with the NYS Smart Growth Public Policy Act of 2010 and how the alternative meets relevant Smart Growth criteria.
c) Non-Monetary Factors: Non-monetary factors, including social and environmental aspects (e.g. sustainability considerations, operator training requirements, permit issues, community objections, reduction of greenhouse gas emissions, wetland relocation) should also be considered in determining which alternative is recommended and may be factored into the calculations.
d) Preliminary Project Design: 1. Wastewater/Reuse: i. Collection System/Reclaimed Water System Layout. Identify general location of new pipe, replacement or rehabilitation: lengths, sizes, and key components. Appendix G-7 Effective 10/1/2015
NYS CWSRF Engineering Report Template ii. Pumping Stations. Identify size, type, site location, and any special power requirements. For rehabilitation projects, include description of components upgraded. iii. Storage. Identify size, type, location and frequency of operation. iv. Treatment. Describe process in detail (including whether adding, replacing, or rehabilitating a process) and identify location of any treatment units and site of any discharges (end use for reclaimed water). Identify capacity of treatment plant (i.e. Average Daily Flow).
For projects with no existing wastewater infrastructure, the following need to be considered: Decentralized systems New sewers & connection to regional treatment facility
For projects with existing wastewater infrastructure, the following need to be considered: Rebuilding existing wastewater infrastructure Connection to regional wastewater treatment facility
2. Stormwater: i. Collection System Layout. Identify general location of new pipe, replacement or rehabilitation: lengths, sizes, and key components. ii. Pumping Stations. Identify size, type, location, and any special power requirements. iii. Treatment. Describe treatment process in detail. Identify location of treatment facilities and process discharges. Capacity of treatment process should also be addressed. iv. Storage. Identify size, type, location and frequency of operation. v. Disposal. Describe type of disposal facilities and location. vi. Green Infrastructure. Provide the following information for green infrastructure alternatives: Control Measures Selected. Identify types of control measures selected (e.g., vegetated areas, planter boxes, permeable pavement, rainwater cisterns). Layout: Identify placement of green infrastructure control measures, flow paths, and drainage area for each control measure. Sizing: Identify surface area and water storage volume for each green infrastructure control measure. Where applicable, soil infiltration rate, evapotranspiration rate, and use rate (for rainwater harvesting) should also be addressed. Overflow: Describe overflow structures and locations for conveyance of larger precipitation events.
e) Project Schedule: Identify proposed dates for submittal and anticipated approval of all required documents, land & easement acquisition, permit applications, advertisement for bids, loan closing, contract award, initiation of construction, substantial & final completion, and initiation of operation.
f) Permit Requirements: Identify any construction, discharge and capacity permits that will/may be required as a result of the project.
g) Sustainability Considerations: 1. Water and Energy Efficiency. Describe aspects of the proposed project addressing water reuse, recapture, water efficiency, and water conservation, energy efficient design, and/or renewable generation of energy, if incorporated into the selected alternative. For energy efficiency, compare the estimated energy usage of the proposed design with that of baseline standard practices.
Appendix G-8 Effective 10/1/2015
NYS CWSRF Engineering Report Template
2. Green Infrastructure. Describe aspects of the project that preserve or mimic natural processes to manage stormwater, if applicable to the selected alternative. Address management of runoff volume and peak flows through infiltration, evapotranspiration, and/or harvest and use, if applicable.
3. Other. Describe other aspects of sustainability (such as operational simplicity) and storm resiliency (such as risk due to sea level rise, storm surge, as applicable, flooding or other extreme weather event) that are incorporated into the selected alternative.
h) Total Project Cost Estimate (Engineer's Opinion of Probable Cost): Provide an itemized estimate of the project cost based on the stated period of construction. Include construction, land and right-of-ways, legal, engineering, construction program management, funds administration, interest, equipment, construction contingency, refinancing, and other costs associated with the proposed project. The construction subtotal should be separated out from the non-construction costs. The non-construction subtotal should be included and added to the construction subtotal to establish the total project cost. An appropriate construction contingency should be added as part of the non-construction subtotal: For projects containing both water and waste disposal systems, provide a separate cost estimate for each system as well as a grand total. If applicable, the cost estimate should be itemized to reflect cost sharing including apportionment between funding sources. The engineer may rely on the owner for estimates of cost for items other than construction, equipment, and engineering.
i) Annual Operating Budget: Provide itemized annual operating budget information. The owner has primary responsibility for the annual operating budget, however, there are other parties that may provide technical assistance. This information will be used to evaluate the financial capacity of the system. The engineer will incorporate information from the owner's accountant and other known technical service providers.
1. Income. Provide information about all sources of income for the system including a proposed rate schedule. Project income realistically for existing and proposed new users separately, based on existing user billings, water treatment contracts, and other sources of income. In the absence of historic data or other reliable information, for budget purposes, base water use on 100 gallons per capita per day. Water use per residential connection may then be calculated based on the most recent U.S. Census, American Community Survey, or other data for the state or county of the average household size. When large agricultural or commercial users are projected, the Report should identify those users and include facts to substantiate such projections and evaluate the impact of such users on the economic viability of the project.
2. Annual O&M Costs. Provide an itemized list by expense category and project costs realistically. Provide projected costs for operating the system as improved. In the absence of other reliable data, based on actual costs of other existing facilities of similar size and complexity. Include facts in the Report to substantiate O&M cost estimates. Include personnel costs, administrative costs, water purchase or treatment costs, accounting and auditing fees, legal fees, interest, utilities, energy costs, insurance, annual repairs and maintenance, monitoring and testing, supplies, chemicals, residuals disposal, office supplies, printing, professional services, and miscellaneous as applicable. Any income from renewable energy generation which is sold back to the electric utility should also be included, if applicable. If applicable, note the operator grade needed.
3. Debt Repayments. Describe existing and proposed financing with the estimated amount Appendix G-9 Effective 10/1/2015
NYS CWSRF Engineering Report Template of annual debt repayments from all sources. All estimates of funding should be based on loans, not grants.
4. Reserves. Describe the existing and proposed loan obligation reserve requirements: i. Debt Service Reserve - For specific debt service reserve requirements consult with individual funding sources. If General Obligation bonds are proposed to be used as loan security, this section may be omitted, but this should be clearly stated if it is the case.
j) Short-Lived Asset Reserve: A table of short lived assets should be included for the system (See Appendix A for examples). The table should include the asset, the expected year of replacement, and the anticipated cost of each. Prepare a recommended annual reserve deposit to fund replacement of short-lived assets, such as pumps, paint, and small equipment. Short-lived assets include those items not covered under O&M, however, this does not include facilities such as a water tank or treatment facility replacement that are usually funded with long-term capital financing.
9. ENVIRONMENTAL REVIEW Consideration should be given to minimizing any potential adverse environmental effects of the proposed project. Include a discussion of relevant primary and secondary impacts on: 1. Water quality 2. Water supply 3. Noise levels 4. Air quality 5. Population growth 6. Wetlands 7. Floodplains 8. Environmentally sensitive areas If appropriate, include mitigation measures taken to reduce or eliminate any significant adverse impacts and describe impact sequence of avoidance, minimization and mitigation. If appropriate, compliance with planning requirements of federal, provincial, state, and local regulatory agencies shall be documented and a list of all agencies and persons contacted included.
10. SUMMARY Please include a concise summary of any additional pertinent information specific to the project proposal.
11. CONCLUSIONS, RECOMMENDATIONS, AND CERTIFICATION Provide any additional findings and recommendations that should be considered in development of the project. This may include recommendations for special studies, highlighting of the need for special coordination, a recommended plan of action to expedite project development, and any other necessary considerations. Include the Engineering Report Certification found in Appendix B in the body of the Conclusion section of the Engineering Report.
Appendix G-10 Effective 10/1/2015
NYS CWSRF Engineering Report Template Appendix A: Example List of Short-Lived Asset Infrastructure
Estimated Repair, Rehab, Replacement Expenses by Item to within 20 years from Installation Drinking Water Utilities Wastewater Utilities Source Related Treatment Related Pumps Pump Pump Controls Pump Controls Pump Motors Pump Motors Telemetry Chemical feed pumps Intake/ Well screens Membrane Filters Fibers Water Level Sensors Field & Process Instrumentation Equipment Pressure Transducers UV lamps Treatment Related Centrifuges Chemical feed pumps Altitude Valves Aeration blowers Valve Actuators Aeration diffusers and nozzles Field & Process Instrumentation Equipment Granular Trickling filters, RBCs, etc. filter media Belt presses & driers Air compressors & control units Pumps Sludge Collecting and Dewatering Equipment Pump Motors Level Sensors Pump Controls Pressure Transducers Water Level Sensors Pressure Transducers Pump Controls Sludge Collection & Dewatering Back-up power generator UV Lamps Membranes Chemical Leak Detection Equipment Back-up power generators Flow meters Chemical Leak Detection Equipment Flow meters SCADA Systems SCADA Systems Collection System Related Pump Distribution System Related Pump Controls Residential and Small Commercial Meters Pump Motors Meter boxes Trash racks/bar screens Hydrants & Blow offs Sewer line rodding equipment Pressure reducing valves Air compressors Cross connection control devices Vaults, lids, and access hatches Altitude valves Security devices and fencing Alarms & Telemetry Alarms & Telemetry Vaults, lids, and access hatches Chemical Leak Detection Equipment Security devices and fencing Storage reservoir painting/patching
Appendix G-11 Effective 10/1/2015
NYS CWSRF Engineering Report Template APPENDIX B
Engineering Report Certification
To Be Provided by the Professional Engineer Preparing the Report
During the preparation of this Engineering Report, I have studied and evaluated the cost and effectiveness of the processes, materials, techniques, and technologies for carrying out the proposed project or activity for which assistance is being sought from the New York State Clean Water State Revolving Fund. I have recommended for selection, to the maximum extent practicable, a project or activity that maximizes the potential for efficient water use, reuse, recapture, and conservation, and energy conservation, taking into account the cost of constructing the project or activity, the cost of operating and maintaining the project or activity over the life of the project or activity, and the cost of replacing the project and activity.
Title of Engineering Report: Date of Report: Professional Engineer’s Name: Signature: Date:
Appendix G-12 Effective 10/1/2015
APPENDIX A
GENERAL PROVISIONS GOVERNING CONTRACTS FOR CONSULTANTS, PROFESSIONAL, TECHNICAL, HUMAN AND CLIENT SERVICES
FOR
CONTRACT: NR-STRUCT-DES - Design Services and Design Services During Construction for the North River Wastewater Treatment Plant Structural Improvements Project
13 NR-STRUCT-DES RFP 3/6/2017 APPENDIX A
GENERAL PROVISIONS GOVERNING CONTRACTS FOR CONSULTANTS, PROFESSIONAL, TECHNICAL, HUMAN AND CLIENT SERVICES
TABLE OF CONTENTS
ARTICLE 1 - DEFINITIONS
Section 1.01 Definitions…………………………………………………………………………1
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES
Section 2.01 Procurement of Agreement………………………………………………………2
Section 2.02 Conflicts of Interest……………………………………………………………….2
Section 2.03 Fair Practices……………………………………………………………………...4
Section 2.04 VENDEX…………………………………………………………………………..4
Section 2.05 Political Activity…………………………………………………………………...4
Section 2.06 Religious Activity……………………………………………………………….....5
Section 2.07 Unlawful Discriminatory Practices: City Admin. Code § 6-123………….……5
Section 2.08 Bankruptcy and Reorganization…………………………………………………5
ARTICLE 3 - ASSIGNMENT AND SUBCONTRACTING
Section 3.01 Assignment……………………………………………………………………...…5
Section 3.02 Subcontracting……………………………………………………….……………6
Appendix A (Architects and Engineers) August 2011 Final
i ARTICLE 4 - LABOR PROVISIONS
Section 4.01 Independent Contractor Status…………………………………………………..7
Section 4.02 Employees………………………………………………………………………….8
Section 4.03 Removal of Individuals Performing Work………………………………………8
Section 4.04 Minimum Wage…………………………………………………………………...8
Section 4.05 Non-Discrimination: New York State Labor Law § 220-e…………………..…9
Section 4.06 Non-Discrimination: City Admin. Code § 6-108……………….……………….9
Section 4.07 Non-Discrimination: E.O. 50 -- Equal Employment Opportunity…………...10
ARTICLE 5 - RECORDS, AUDITS, REPORTS, AND INVESTIGATIONS
Section 5.01 Books and Records………………………………………………………….…...12
Section 5.02 Retention of Records………………………………………………….....………12
Section 5.03 Inspection……………………………………………………………………..….12
Section 5.04 Audit……………………………………………………………………………...13
Section 5.05 No Removal of Records from Premises…………………………………...……13
Section 5.06 Electronic Records……………………………………………………...………..13
Section 5.07 Investigations Clause…………………………………………………………….14
Section 5.08 Confidentiality…………………………………………………...………………16
ARTICLE 6 - COPYRIGHTS, PATENTS, INVENTIONS AND ANTITRUST
Section 6.01 Copyrights………………………………………………………………………..18
Section 6.02 Patents and Inventions……………………………………………….………….19
Section 6.03 Pre-existing Rights……………………………………………………...………..19
Section 6.04 Antitrust…………………………………………………………...……………..19
Appendix A (Architects and Engineers) August 2011 Final ii ARTICLE 7 - INSURANCE
Section 7.01 Agreement to Insure……………………………………………….…………….19
Section 7.02 Commercial General Liability Insurance ………………………..……………19
Section 7.03 Professional Liability Insurance…….……………………………………...…..20
Section 7.04 Workers’ Compensation, Disability Benefits, and Employer’s Liability Insurance ………………………...………..…...…….…20
Section 7.05 Unemployment Insurance ………………………………………………………20
Section 7.06 Business Automobile Liability Insurance……………………………………....21
Section 7.07 General Requirements for Insurance Coverage and Policies………………....21
Section 7.08 Proof of Insurance……………………………………….………………..……..21
Section 7.09 Miscellaneous …………………………………………………………….….…..22
ARTICLE 8 - PROTECTION OF PERSONS AND PROPERTY AND INDEMNIFICATION
Section 8.01 Reasonable Precautions……………………………………………..….….……23
Section 8.02 Protection of City Property……………………………………….…….………24
Section 8.03 Indemnification ………………………………………………….……..……….24
Section 8.04 Infringement Indemnification ……………………………………….…………24
Section 8.05 Indemnification Obligations Not Limited By Insurance Obligation.….….….24
Section 8.06 Actions By or Against Third Parties………………………………….…….…..25
Section 8.07 Withholding of Payments…………………………………………...….…….…25
Section 8.08 No Third Party Rights…………………………………………………..…….…25
ARTICLE 9 - CONTRACT CHANGES
Section 9.01 Contract Changes……………………………………………………….…….…26
Appendix A (Architects and Engineers) August 2011 Final iii Section 9.02 Changes Through Fault of Contractor………………………….….….…….…26
ARTICLE 10 - TERMINATION, DEFAULT, AND REDUCTIONS IN FUNDING
Section 10.01 Termination by the City Without Cause………………………….….…..…...26
Section 10.02 Reductions in Federal, State and/or City Funding………...……………...….26
Section 10.03 Contractor Default …………………………………………………..………...27
Section 10.04 Force Majeure ………………………………………………………..………...29
Section 10.05 Procedures for Termination………………………………………………...…30
Section 10.06 Miscellaneous Provisions ……………………………………………………...30
ARTICLE 11 - PROMPT PAYMENT AND ELECTRONIC FUNDS TRANSFER
Section 11.01 Prompt Payment………………………………………………………….….....31
Section 11.02 Electronic Funds Transfer…………………………………………..………....31
ARTICLE 12 - CLAIMS
Section 12.01 Choice of Law…………………………………….………………………….....32
Section 12.02 Jurisdiction and Venue…………………………………………………..…….32
Section 12.03 Resolution of Disputes……………………………………………………...…..32
Section 12.04 Claims and Actions ………………………………………………………….…37
Section 12.05 No Claim Against Officers, Agents or Employees……………………...….…37
Section 12.06 General Release……………………………………………………………...…38
Section 12.07 No Waiver………………………………………………………..…………...…38
Appendix A (Architects and Engineers) August 2011 Final iv ARTICLE 13 - APPLICABLE LAWS
Section 13.01 PPB Rules…………………………………………………………..…….…..…38
Section 13.02 All Legal Provisions Deemed Included…………………………..………..…..38
Section 13.03 Severability / Unlawful Provisions Deemed Stricken………..……..………...38
Section 13.04 Compliance With Laws………………………………………………...………38
Section 13.05 Americans with Disabilities Act (ADA)………………………………....….…39
Section 13.06 Voter Registration………………………………………………………..….…39
Section 13.07 Participation in an International Boycott……………………………….……42
Section 13.08 MacBride Principles………………………………………………………...….42
Section 13.09 Access to Public Health Insurance Coverage Information…………………..42
Section 13.10 Distribution of Personal Identification Materials………………..…………..44
ARTICLE 14 - MISCELLANEOUS PROVISIONS
Section 14.01 Conditions Precedent……...…………………………………………………...44
Section 14.02 Merger…………………...……………………………………….……………..44
Section 14.03 Headings………………..……………………………………………………….45
Section 14.04 Notice………………………………………………………..…………………..45
AFFIRMATION………………………………………………………...……………………...46
CERTIFICATION BY BROKER………………………………………...……………..…….47
Appendix A (Architects and Engineers) August 2011 Final v Appendix A (Architects and Engineers) August 2011 Final
APPENDIX A
GENERAL PROVISIONS GOVERNING CONTRACTS FOR CONSULTANTS, PROFESSIONAL, TECHNICAL, HUMAN AND CLIENT SERVICES
ARTICLE 1 - DEFINITIONS
Section 1.01 Definitions
The following words and expressions, or pronouns used in their stead, shall, wherever they appear in this Agreement, be construed as follows, unless a different meaning is clear from the context:
A. “Agency Chief Contracting Officer” or “ACCO” shall mean the position delegated authority by the Agency Head to organize and supervise the procurement activity of subordinate Agency staff in conjunction with the City Chief Procurement Officer.
B. “Agreement” shall mean the various documents, including this Appendix A, that constitute the contract between the Contractor and the City.
C. “City” shall mean The City of New York.
D. “City Chief Procurement Officer” or “CCPO” shall mean the position delegated authority by the Mayor to coordinate and oversee the procurement activity of Mayoral agency staff, including the ACCOs.
E. “Commissioner” or “Agency Head” shall mean the head of the Department or his or her duly authorized representative. The term “duly authorized representative” shall include any person or persons acting within the limits of his or her authority.
F. “Comptroller” shall mean the Comptroller of the City of New York.
G. “Contractor” shall mean the entity entering into this Agreement with the Department.
H. “Days” shall mean calendar days unless otherwise specifically noted to mean business days.
I. “Department” or “Agency” shall mean the City agency that has entered into this Agreement.
J. “Law” or “Laws” shall mean the New York City Charter (“Charter”), the New York City Administrative Code (“Admin. Code”), a local rule of the City of New York, the Constitutions of the United States and the State of New York, a statute of the United States or of the State of New York and any ordinance, rule or regulation having the force of law and adopted pursuant thereto, as amended, and common law.
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K. “Procurement Policy Board” or “PPB” shall mean the board established pursuant to Charter § 311 whose function is to establish comprehensive and consistent procurement policies and rules which have broad application throughout the City.
L. “PPB Rules” shall mean the rules of the Procurement Policy Board as set forth in Title 9 of the Rules of the City of New York (“RCNY”), § 1-01 et seq.
M. “State” shall mean the State of New York.
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES
Section 2.01 Procurement of Agreement
A. The Contractor represents and warrants that no person or entity (other than an officer, partner, or employee working solely for the Contractor) has been employed or retained to solicit or secure this Agreement upon any agreement or understanding for a commission, percentage, brokerage fee, contingent fee or any other direct or indirect compensation. Notwithstanding the preceding sentence, the Contractor may retain consultants to draft proposals, negotiate contracts, and perform other similar services. The Contractor further represents and warrants that no payment, gift, or thing of value has been made, given, or promised to obtain this or any other agreement between the parties. The Contractor makes such representations and warranties to induce the City to enter into this Agreement and the City relies upon such representations and warranties in the execution of this Agreement.
B. For any breach or violation of the representations and warranties set forth in Paragraph A above, the Commissioner shall have the right to annul this Agreement without liability, entitling the City to recover all monies paid to the Contractor; and the Contractor shall not make claim for, or be entitled to recover, any sum or sums due under this Agreement. The rights and remedies of the City provided in this Section are not exclusive and are in addition to all other rights and remedies allowed by Law or under this Agreement.
Section 2.02 Conflicts of Interest
A. The Contractor represents and warrants that neither it nor any of its directors, officers, members, partners or employees, has any interest nor shall they acquire any interest, directly or indirectly, which conflicts in any manner or degree with the performance of this Agreement. The Contractor further represents and warrants that no person having such interest or possible interest shall be employed by or connected with the Contractor in the performance of this Agreement.
B. Consistent with Charter § 2604 and other related provisions of the Charter, the Admin. Code and the New York State Penal Law, no elected official or other officer or employee of the City, nor any person whose salary is payable, in whole or in part, from the City Treasury, shall participate in any decision relating to this Agreement which affects his or her personal
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interest or the interest of any corporation, partnership or other entity in which he or she is, directly or indirectly, interested; nor shall any such official, officer, employee, or person have any interest in, or in the proceeds of, this Agreement. This Paragraph B shall not prevent directors, officers, members, partners, or employees of the Contractor from participating in decisions relating to this Agreement where their sole personal interest is in the Contractor.
C. The Contractor shall not employ a person or permit a person to serve as a member of the Board of Directors or as an officer of the Contractor if such employment or service would violate Chapter 68 of the Charter.
[PARAGRAPHS D-H ARE APPLICABLE ONLY TO HUMAN OR CLIENT SERVICE CONTRACTS.]
D. Except as provided in Paragraph E below, the Contractor’s employees and members of their immediate families, as defined in Paragraph F below, may not serve on the Board of Directors of the Contractor (“Board”), or any committee with authority to order personnel actions affecting his or her job, or which, either by rule or by practice, regularly nominates, recommends or screens candidates for employment in the program to be operated pursuant to this Agreement.
E. If the Board has more than five (5) members, then Contractor’s employees and members of their immediate families may serve on the Board, or any committee with authority to order personnel actions affecting his or her job, or which, either by rule or by practice, regularly nominates, recommends or screens candidates for employment in the program to be operated pursuant to this Agreement, provided that (i) Contractor’s employees and members of their immediate families are prohibited from voting on any such personnel matters, including but not limited to any matters directly affecting their own salary or other compensation, and shall fully disclose all conflicts and potential conflicts to the Board, and (ii) Contractor’s employees and members of their immediate families may not serve in the capacity either of Chairperson or Treasurer of the Board (or equivalent titles), nor constitute more than one-third of either the Board or any such committee.
F. Without the prior written consent of the Commissioner, no person may hold a job or position with the Contractor over which a member of his or her immediate family exercises any supervisory, managerial or other authority whatsoever whether such authority is reflected in a job title or otherwise, unless such job or position is wholly voluntary and unpaid. A member of an immediate family includes: husband, wife, domestic partner, father, father-in-law, mother, mother-in-law, brother, brother-in-law, sister, sister-in-law, son, son-in-law, daughter, daughter- in-law, niece, nephew, aunt, uncle, first cousin, and separated spouse. Where a member of an immediate family has that status because of that person’s relationship to a spouse (e.g., father-in- law), that status shall also apply to a relative of a domestic partner. For purposes of this Section, a member of the Board is deemed to exercise authority over all employees of the Contractor.
G. If the Contractor has contracts with the City that in the aggregate during any twelve-month period have a value of more than One Million Dollars ($1,000,000) and such amount constitutes more than fifty percent (50%) of the Contractor’s total revenues, then the Contractor must have a minimum of five (5) persons on its Board.
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H. Paragraphs D-H of this Section 2.02 apply only if Contractor is a not-for-profit corporation.
Section 2.03 Fair Practices
A. The Contractor and each person signing on its behalf certifies, under penalties of perjury, that to the best of its, his or her knowledge and belief:
1. The prices and other material terms set forth in this Agreement have been arrived at independently, without collusion, consultation, communication, or agreement with any other bidder or proposer or with any competitor as to any matter relating to such prices or terms for the purpose of restricting competition;
2. Unless otherwise required by Law or where a schedule of rates or prices is uniformly established by a government agency through regulation, policy or directive, the prices and other material terms set forth in this Agreement which have been quoted in this Agreement and on the bid or proposal submitted by the Contractor have not been knowingly disclosed by the Contractor, directly or indirectly, to any other bidder or proposer or to any competitor prior to the bid or proposal opening; and
3. No attempt has been made or will be made by the Contractor to induce any other person or entity to submit or not to submit a bid or proposal for the purpose of restricting competition.
B. The fact that the Contractor (i) has published price lists, rates, or tariffs covering items being procured, (ii) has informed prospective customers of proposed or pending publication of new or revised price lists for such items, or (iii) has sold the same items to other customers at the same prices and/or terms being bid or proposed, does not constitute, without more, a disclosure within the meaning of this Section.
Section 2.04 VENDEX
The Contractor represents and warrants that it and its principals have duly executed and filed all required VENDEX Questionnaires and, if applicable, Certificates of No Change, pursuant to PPB Rule § 2-08 and in accordance with the policies and procedures of the Mayor’s Office of Contract Services. The Contractor understands that the Department's reliance upon the completeness and veracity of the information stated therein is a material condition to the execution of this Agreement, and represents and warrants that the information it and its principals have provided is accurate and complete.
Section 2.05 Political Activity
The Contractor’s provision of services under this Agreement shall not include any partisan political activity or any activity to further the election or defeat of any candidate for
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public, political, or party office, nor shall any of the funds provided under this Agreement be used for such purposes.
Section 2.06 Religious Activity
There shall be no religious worship, instruction or proselytizing as part of or in connection with the Contractor’s provision of services under this Agreement, nor shall any of the funds provided under this Agreement be used for such purposes.
Section 2.07 Unlawful Discriminatory Practices: Admin. Code § 6-123
As required by Admin. Code § 6-123, the Contractor will not engage in any unlawful discriminatory practice as defined in and pursuant to the terms of Title 8 of the City Administrative Code. The Contractor shall include a provision in any agreement with a first- level subcontractor performing services under this Agreement for an amount in excess of Fifty Thousand Dollars ($50,000) that such subcontractor shall not engage in any such unlawful discriminatory practice.
Section 2.08 Bankruptcy and Reorganization
In the event that the Contractor files for bankruptcy or reorganization under Chapter Seven or Chapter Eleven of the United States Bankruptcy Code, the Contractor shall disclose such action to the Department within seven (7) days of filing.
ARTICLE 3 - ASSIGNMENT AND SUBCONTRACTING
Section 3.01 Assignment
A. The Contractor shall not assign, transfer, convey or otherwise dispose of this Agreement, or the right to execute it, or the right, title or interest in or to it or any part of it, or assign, by power of attorney or otherwise, any of the monies due or to become due under this Agreement, without the prior written consent of the Commissioner. The giving of any such consent to a particular assignment shall not dispense with the necessity of such consent to any further or other assignments. Any such assignment, transfer, conveyance or other disposition without such written consent shall be void.
B. Before entering into any such assignment, transfer, conveyance or other disposal of this Agreement, the Contractor shall submit a written request for approval to the Department giving the name and address of the proposed assignee. The proposed assignee’s VENDEX questionnaire must be submitted within thirty (30) Days after the ACCO has granted preliminary written approval of the proposed assignee, if required. Upon the request of the Department, the Contractor shall provide any other information demonstrating that the proposed assignee has the necessary facilities, skill, integrity, past experience and financial resources to perform the specified services in accordance with the terms and conditions of this Agreement. The Agency
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shall make a final determination in writing approving or disapproving the assignee after receiving all requested information.
C. Failure to obtain the prior written consent to such an assignment, transfer, conveyance, or other disposition may result in the revocation and annulment of this Agreement, at the option of the Commissioner. The City shall thereupon be relieved and discharged from any further liability and obligation to the Contractor, its assignees, or transferees, who shall forfeit all monies earned under this Agreement, except so much as may be necessary to pay the Contractor’s employees.
D. The provisions of this Section shall not hinder, prevent, or affect an assignment by the Contractor for the benefit of its creditors made pursuant to the Laws of the State.
E. This Agreement may be assigned, in whole or in part, by the City to any corporation, agency, or instrumentality having authority to accept such assignment. The City shall provide the Contractor with written notice of any such assignment.
Section 3.02 Subcontracting
A. The Contractor shall not enter into any subcontract for an amount greater than Five Thousand Dollars ($5,000) for the performance of its obligations, in whole or in part, under this Agreement without the prior approval by the Department of the subcontractor. The Department hereby grants approval for all subcontracts for an amount that does not exceed Five Thousand Dollars ($5,000). The Contractor must submit monthly reports to the Department indicating all such subcontractors. All subcontracts must be in writing.
B. Prior to entering into any subcontract for an amount greater than Five Thousand Dollars ($5,000), the Contractor shall submit a written request for the approval of the proposed subcontractor to the Department giving the name and address of the proposed subcontractor and the portion of the services that it is to perform and furnish. At the request of the Department, a copy of the proposed subcontract shall be submitted to the Department. The proposed subcontractor’s VENDEX Questionnaire must be submitted, if required, within thirty (30) Days after the ACCO has granted preliminary approval of the proposed subcontractor. Upon the request of the Department, the Contractor shall provide any other information demonstrating that the proposed subcontractor has the necessary facilities, skill, integrity, past experience and financial resources to perform the specified services in accordance with the terms and conditions of this Agreement. The Agency shall make a final determination in writing approving or disapproving the subcontractor after receiving all requested information. For proposed subcontracts that do not exceed Twenty-five Thousand Dollars ($25,000), the Department’s approval shall be deemed granted if the Department does not issue a written approval or disapproval within forty-five (45) Days of the Department’s receipt of the written request for approval or, if applicable, within forty-five (45) Days of the Department’s acknowledged receipt of fully completed VENDEX Questionnaires for the subcontractor.
C. All subcontracts shall contain provisions specifying that:
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1. The work performed by the subcontractor must be in accordance with the terms of the agreement between the City and the Contractor;
2. Nothing contained in the agreement between the Contractor and the subcontractor shall impair the rights of the City;
3. Nothing contained in the agreement between the Contractor and the subcontractor, or under the agreement between the City and the Contractor, shall create any contractual relation between the subcontractor and the City; and
4. The subcontractor specifically agrees to be bound by Section 4.07 and Article 5 of this Appendix A and specifically agrees that the City may enforce such provisions directly against the subcontractor as if the City were a party to the subcontract.
D. The Contractor agrees that it is as fully responsible to the Department for the acts and omissions of its subcontractors and of persons either directly or indirectly employed by such subcontractors as it is for the acts and omissions of any person directly employed by it.
E. For determining the value of a subcontract, all subcontracts with the same subcontractor shall be aggregated.
F. The Department may revoke the approval of a subcontractor granted or deemed granted pursuant to Paragraphs (A) and (B) of this section if revocation is deemed to be in the interest of the City in writing on no less than ten (10) Days notice unless a shorter period is warranted by considerations of health, safety, integrity issues or other similar factors. Upon the effective date of such revocation, the Contractor shall cause the subcontractor to cease all work under the Agreement. The City shall not incur any further obligation for services performed by such subcontractor pursuant to this Agreement beyond the effective date of the revocation. The City shall pay for services provided by the subcontractor in accordance with this Agreement prior to the effective date of revocation.
G. The Department’s approval of a subcontractor shall not relieve the Contractor of any of its responsibilities, duties and liabilities under this Agreement. At the request of the Department, the Contractor shall provide the Department a copy of any subcontract.
H. Individual employer-employee contracts are not subcontracts subject to the requirements of this Section.
I. The total percentage of Services subcontracted to any one Subcontractor shall not the exceed the percentage of Services performed directly by the Contractor, unless a compelling justification is submitted to the Commissioner explaining the special circumstances that necessitate such excess subcontracting. Such request may be approved or denied by the Commissioner in his sole discretion.
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ARTICLE 4 - LABOR PROVISIONS
Section 4.01 Independent Contractor Status
The Contractor and the Department agree that the Contractor is an independent contractor and not an employee of the Department or the City. Accordingly, neither the Contractor nor its employees or agents will hold themselves out as, or claim to be, officers or employees of the City, or of any department, agency or unit of the City, by reason of this Agreement, and they will not, by reason of this Agreement, make any claim, demand or application to or for any right or benefit applicable to an officer or employee of the City, including, but not limited to, Workers’ Compensation coverage, Disability Benefits coverage, Unemployment Insurance benefits, Social Security coverage or employee retirement membership or credit.
Section 4.02 Employees
All persons who are employed by the Contractor and all consultants or independent contractors who are retained by the Contractor to perform services under this Agreement are neither employees of the City nor under contract with the City. The Contractor, and not the City, is responsible for their work, direction, compensation, and personal conduct while engaged under this Agreement. Nothing in the Agreement shall impose any liability or duty on the City for the acts, omissions, liabilities or obligations of the Contractor, or any officer, employee, or agent of the Contractor, or for taxes of any nature, or for any right or benefit applicable to an officer or employee of the City, including, but not limited to, Workers’ Compensation coverage, Disability Benefits coverage, Unemployment Insurance benefits, Social Security coverage or employee retirement membership or credit. Except as specifically stated in this Agreement, nothing in this Agreement shall impose any liability or duty on the City to any person or entity.
Section 4.03 Removal of Individuals Performing Work
The Contractor shall not have anyone perform work under this Agreement who is not competent, faithful and skilled in the work for which he or she shall be employed. Whenever the Commissioner shall inform the Contractor, in writing, that any individual is, in his or her opinion, incompetent, unfaithful, or unskilled, such individual shall no longer perform work under this Agreement. Prior to making a determination to direct a Contractor that an individual shall no longer perform work under this Agreement, the Commissioner shall provide the Contractor an opportunity to be heard on no less than five (5) Days’ written notice. The Commissioner may direct the Contractor not to allow the individual from performing work under the Agreement pending the opportunity to be heard and the Commissioner’s determination.
Section 4.04 Minimum Wage
Except for those employees whose minimum wage is required to be fixed pursuant to Sections 220 or 230 of the New York State Labor Law or by City Administrative Code § 6-109, all persons employed by the Contractor in the performance of this Agreement shall be paid,
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without subsequent deduction or rebate, unless expressly authorized by Law, not less than the minimum wage as prescribed by Law. Any breach of this Section shall be deemed a material breach of this Agreement.
Section 4.05 Non-Discrimination: New York State Labor Law § 220-e
A. If this Agreement is 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, the Contractor agrees, as required by New York State Labor Law § 220-e, that:
1. In the hiring of employees for the performance of work under this Agreement or any subcontract hereunder, neither the Contractor, subcontractor, nor any person acting on behalf of such Contractor or subcontractor, shall by reason of race, creed, color, disability, sex or national origin discriminate against any citizen of the State of New York who is qualified and available to perform the work to which the employment relates;
2. Neither the Contractor, subcontractor, nor any person on his or her behalf shall, in any manner, discriminate against or intimidate any employee hired for the performance of work under this Agreement on account of race, creed, color, disability, sex or national origin;
3. There may be deducted from the amount payable to the Contractor by the City under this Agreement a penalty of Fifty Dollars ($50) for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provisions of this Agreement; and
4. This Agreement may be terminated by the City, and all monies due or to become due hereunder may be forfeited, for a second or any subsequent violation of the terms or conditions of this Section.
B. The provisions of this Section shall be limited to operations performed within the territorial limits of the State of New York.
Section 4.06 Non-Discrimination: Admin. Code § 6-108
If this Agreement is for the construction, alteration or repair of buildings or the construction or repair of streets or highways, or for the manufacture, sale, or distribution of materials, equipment or supplies, the Contractor agrees, as required by New York City Administrative Code § 6-108, that:
A. It shall be unlawful for any person engaged in the construction, alteration or repair of buildings or engaged in the construction or repair of streets or highways pursuant to a contract with the City or engaged in the manufacture, sale or distribution of materials, equipment or supplies pursuant to a contract with the City to refuse to employ or to refuse to continue in any employment any person on account of the race, color or creed of such person.
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B. It shall be unlawful for any person or any servant, agent or employee of any person, described in Paragraph A above, to ask, indicate or transmit, orally or in writing, directly or indirectly, the race, color, creed or religious affiliation of any person employed or seeking employment from such person, firm or corporation.
C. Breach of the foregoing provisions shall be deemed a breach of a material provision of this Agreement.
D. Any person, or the employee, manager or owner of or officer of such firm or corporation who shall violate any of the provisions of this Section shall, upon conviction thereof, be punished by a fine of not more than One Hundred Dollars ($100) or by imprisonment for not more than thirty (30) Days, or both.
Section 4.07 Non-Discrimination: E.O. 50 -- Equal Employment Opportunity
A. This Agreement is subject to the requirements of City Executive Order No. 50 (1980) (“E.O. 50”), as revised, and the rules set forth at 66 RCNY § 10-01 et seq. No agreement will be awarded unless and until these requirements have been complied with in their entirety. The Contractor agrees that it:
1. Will not discriminate unlawfully against any employee or applicant for employment because of race, creed, color, national origin, sex, age, disability, marital status, sexual orientation or citizenship status with respect to all employment decisions including, but not limited to, recruitment, hiring, upgrading, demotion, downgrading, transfer, training, rates of pay or other forms of compensation, layoff, termination, and all other terms and conditions of employment;
2. Will not discriminate unlawfully in the selection of subcontractors on the basis of the owners’, partners’ or shareholders’ race, color, creed, national origin, sex, age, disability, marital status, sexual orientation, or citizenship status;
3. Will state in all solicitations or advertisements for employees placed by or on behalf of the Contractor that all qualified applicants will receive consideration for employment without unlawful discrimination based on race, color, creed, national origin, sex, age, disability, marital status, sexual orientation or citizenship status, and that it is an equal employment opportunity employer;
4. Will send to each labor organization or representative of workers with which it has a collective bargaining agreement or other contract or memorandum of understanding, written notification of its equal employment opportunity commitments under E.O. 50 and the rules and regulations promulgated thereunder;
5. Will furnish before this Agreement is awarded all information and reports including an Employment Report which are required by E.O. 50, the rules and regulations promulgated thereunder, and orders of the City Department of Small Business Services, Division of Labor Services (“DLS”); and
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6. Will permit DLS to have access to all relevant books, records, and accounts for the purposes of investigation to ascertain compliance with such rules, regulations, and orders.
B. The Contractor understands that in the event of its noncompliance with the nondiscrimination clauses of this Agreement or with any of such rules, regulations, or orders, such noncompliance shall constitute a material breach of this Agreement and noncompliance with E.O. 50 and the rules and regulations promulgated thereunder. After a hearing held pursuant to the rules of DLS, the Director of DLS may direct the Commissioner to impose any or all of the following sanctions:
1. Disapproval of the Contractor; and/or
2. Suspension or termination of the Agreement; and/or
3. Declaring the Contractor in default; and/or
4. In lieu of any of the foregoing sanctions, imposition of an employment program.
C. Failure to comply with E.O. 50 and the rules and regulations promulgated thereunder in one or more instances may result in the Department declaring the Contractor to be non-responsible.
D. The Contractor agrees to include the provisions of the foregoing Paragraphs in every subcontract or purchase order in excess of One Hundred Thousand Dollars ($100,000) to which it becomes a party unless exempted by E.O. 50 and the rules and regulations promulgated thereunder, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as may be directed by the Director of DLS as a means of enforcing such provisions including sanctions for noncompliance. A supplier of unfinished products to the Contractor needed to produce the item contracted for shall not be considered a subcontractor or vendor for purposes of this Paragraph.
E. The Contractor further agrees that it will refrain from entering into any subcontract or modification thereof subject to E.O. 50 and the rules and regulations promulgated thereunder with a subcontractor who is not in compliance with the requirements of E.O. 50 and the rules and regulations promulgated thereunder. A supplier of unfinished products to the Contractor needed to produce the item contracted for shall not be considered a subcontractor for purposes of this Paragraph.
F. Nothing contained in this Section shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, that is operated, supervised or controlled by or in connection with a religious organization, from lawfully limiting employment or lawfully giving preference to persons of the same religion or denomination or from lawfully making such selection as is calculated by such organization to promote the religious principles for which it is established or maintained.
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ARTICLE 5 - RECORDS, AUDITS, REPORTS, AND INVESTIGATIONS
Section 5.01 Books and Records
The Contractor agrees to maintain separate and accurate books, records, documents and other evidence, and to utilize appropriate accounting procedures and practices, which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this Agreement.
Section 5.02 Retention of Records
The Contractor agrees to retain all books, records, and other documents relevant to this Agreement, including those required pursuant to Section 5.01, for six years after the final payment or expiration or termination of this Agreement, or for a period otherwise prescribed by Law, whichever is later. In addition, if any litigation, claim, or audit concerning this Agreement has commenced before the expiration of the six-year period, the records must be retained until the completion of such litigation, claim, or audit. Any books, records and other documents that are created in an electronic format in the regular course of business may be retained in an electronic format. Any books, records, and other documents that are created in the regular course of business as a paper copy may be retained in an electronic format provided that the records satisfy the requirements of New York Civil Practice Law and Rules (“CPLR”) 4539(b), including the requirement that the reproduction is created in a manner “which does not permit additions, deletions, or changes without leaving a record of such additions, deletions, or changes.” Furthermore, the Contractor agrees to waive any objection to the admissibility of any such books, records or other documents on the grounds that such documents do not satisfy CPLR 4539(b).
Section 5.03 Inspection
A. At any time during the Agreement or during the record retention period set forth in section 5.02, the City, including the Department and the Department’s Office of the Inspector General, as well as City, State and federal auditors and any other persons duly authorized by the City shall, upon reasonable notice, have full access to and the right to examine and copy all books, records, and other documents maintained or retained by or on behalf of the Contractor pursuant to this Article. Notwithstanding any provision herein regarding notice of inspection, all books, records and other documents of the Contractor kept pursuant to this Agreement shall be subject to immediate inspection, review, and copying by the Department’s Office of the Inspector General and/or the Comptroller without prior notice and at no additional cost to the City. The Contractor shall make such books, records and other documents available for inspection in the City of New York or shall reimburse the City for expenses associated with the out-of-City inspection.
B. The Department shall have the right to have representatives of the Department or of the City, State or federal government present to observe the services being performed.
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C. The Contractor shall not be entitled to final payment until the Contractor has complied with any request for inspection or access given under this Section.
Section 5.04 Audit
A. This Agreement and all books, records, documents, and other evidence required to be maintained or retained pursuant to this Agreement, including all vouchers or invoices presented for payment and the books, records, and other documents upon which such vouchers or invoices are based (e.g., reports, cancelled checks, accounts, and all other similar material), are subject to audit by (i) the City, including the Comptroller, the Department, and the Department’s Office of the Inspector General, (ii) the State, (iii) the federal government, and (iv) other persons duly authorized by the City. Such audits may include examination and review of the source and application of all funds whether from the City, the State, the federal government, private sources or otherwise.
B. Audits by the City, including the Comptroller, the Department, and the Department’s Office of the Inspector General, are performed pursuant to the powers and responsibilities conferred by the Charter and the Admin. Code, as well as all orders, rules, and regulations promulgated pursuant to the Charter and Admin. Code.
C. The Contractor shall submit any and all documentation and justification in support of expenditures or fees under this Agreement as may be required by the Department and by the Comptroller in the exercise of his/her powers under Law.
D. The Contractor shall not be entitled to final payment until the Contractor has complied with the requirements of this Section.
Section 5.05 No Removal of Records from Premises
Where performance of this Agreement involves use by the Contractor of any City books, records, documents, or data (in hard copy, or electronic or other format now known or developed in the future) at City facilities or offices, the Contractor shall not remove any such data (in the format in which it originally existed, or in any other converted or derived format) from such facility or office without the prior written approval of the Department’s designated official. Upon the request by the Department at any time during the Agreement or after the Agreement has expired or terminated, the Contractor shall return to the Department any City books, records, documents, or data that has been removed from City premises.
Section 5.06 Electronic Records
As used in this Appendix A, the terms books, records, documents, and other data refer to electronic versions as well as hard copy versions.
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Section 5.07 Investigations Clause
A. The Contractor agrees to cooperate fully and faithfully with any investigation, audit or inquiry conducted by a State or City agency or authority that is empowered directly or by designation to compel the attendance of witnesses and to examine witnesses under oath, or conducted by the Inspector General of a governmental agency that is a party in interest to the transaction, submitted bid, submitted proposal, contract, lease, permit, or license that is the subject of the investigation, audit or inquiry.
B. 1. If any person who has been advised that his or her statement, and any information from such statement, will not be used against him or her in any subsequent criminal proceeding refuses to testify before a grand jury or other governmental agency or authority empowered directly or by designation to compel the attendance of witnesses and to examine witnesses under oath concerning the award of or performance under any transaction, agreement, lease, permit, contract, or license entered into with the City, or State, or any political subdivision or public authority thereof, or the Port Authority of New York and New Jersey, or any local development corporation within the City, or any public benefit corporation organized under the Laws of the State, or;
2. If any person refuses to testify for a reason other than the assertion of his or her privilege against self-incrimination in an investigation, audit or inquiry conducted by a City or State governmental agency or authority empowered directly or by designation to compel the attendance of witnesses and to take testimony under oath, or by the Inspector General of the governmental agency that is a party in interest in, and is seeking testimony concerning the award of, or performance under, any transaction, agreement, lease, permit, contract, or license entered into with the City, the State, or any political subdivision thereof or any local development corporation within the City, then;
C. 1. The Commissioner or Agency Head whose agency is a party in interest to the transaction, submitted bid, submitted proposal, contract, lease, permit, or license shall convene a hearing, upon not less than five (5) Days written notice to the parties involved to determine if any penalties should attach for the failure of a person to testify.
2. If any non-governmental party to the hearing requests an adjournment, the Commissioner or Agency Head who convened the hearing may, upon granting the adjournment, suspend any contract, lease, permit, or license pending the final determination pursuant to Paragraph E below without the City incurring any penalty or damages for delay or otherwise.
D. The penalties that may attach after a final determination by the Commissioner or Agency Head may include but shall not exceed:
1. The disqualification for a period not to exceed five (5) years from the date of an adverse determination for any person, or any entity of which such person was a member at the time the testimony was sought, from submitting bids for, or transacting business with, or entering into or obtaining any contract, lease, permit or license with or from the City; and/or
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2. The cancellation or termination of any and all such existing City contracts, leases, permits or licenses that the refusal to testify concerns and that have not been assigned as permitted under this Agreement, nor the proceeds of which pledged, to an unaffiliated and unrelated institutional lender for fair value prior to the issuance of the notice scheduling the hearing, without the City incurring any penalty or damages on account of such cancellation or termination; monies lawfully due for goods delivered, work done, rentals, or fees accrued prior to the cancellation or termination shall be paid by the City.
E. The Commissioner or Agency Head shall consider and address in reaching his or her determination and in assessing an appropriate penalty the factors in Paragraphs (1) and (2) below. He or she may also consider, if relevant and appropriate, the criteria established in Paragraphs (3) and (4) below, in addition to any other information that may be relevant and appropriate:
1. The party’s good faith endeavors or lack thereof to cooperate fully and faithfully with any governmental investigation or audit, including but not limited to the discipline, discharge, or disassociation of any person failing to testify, the production of accurate and complete books and records, and the forthcoming testimony of all other members, agents, assignees or fiduciaries whose testimony is sought.
2. The relationship of the person who refused to testify to any entity that is a party to the hearing, including, but not limited to, whether the person whose testimony is sought has an ownership interest in the entity and/or the degree of authority and responsibility the person has within the entity.
3. The nexus of the testimony sought to the subject entity and its contracts, leases, permits or licenses with the City.
4. The effect a penalty may have on an unaffiliated and unrelated party or entity that has a significant interest in an entity subject to penalties under Paragraph D above, provided that the party or entity has given actual notice to the Commissioner or Agency Head upon the acquisition of the interest, or at the hearing called for in Paragraph (C)(1) above gives notice and proves that such interest was previously acquired. Under either circumstance, the party or entity must present evidence at the hearing demonstrating the potential adverse impact a penalty will have on such person or entity.
F. Definitions
1. The term “license” or “permit” as used in this Section shall be defined as a license, permit, franchise, or concession not granted as a matter of right.
2. The term “person” as used in this Section shall be defined as any natural person doing business alone or associated with another person or entity as a partner, director, officer, principal or employee.
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3. The term “entity” as used in this Section shall be defined as any firm, partnership, corporation, association, or person that receives monies, benefits, licenses, leases, or permits from or through the City, or otherwise transacts business with the City.
4. The term “member” as used in this Section shall be defined as any person associated with another person or entity as a partner, director, officer, principal, or employee.
G. In addition to and notwithstanding any other provision of this Agreement, the Commissioner or Agency Head may in his or her sole discretion terminate this Agreement upon not less than three (3) Days written notice in the event the Contractor fails to promptly report in writing to the City Commissioner of Investigation any solicitation of money, goods, requests for future employment or other benefits or thing of value, by or on behalf of any employee of the City or other person or entity for any purpose that may be related to the procurement or obtaining of this Agreement by the Contractor, or affecting the performance of this Agreement.
Section 5.08 Confidentiality
A. The Contractor agrees to hold confidential, both during and after the completion or termination of this Agreement, all of the reports, information, or data, furnished to, or prepared, assembled or used by, the Contractor under this Agreement. The Contractor agrees that such reports, information, or data shall not be made available to any person or entity without the prior written approval of the Department. The Contractor agrees to maintain the confidentiality of such reports, information, or data by using a reasonable degree of care, and using at least the same degree of care that the Contractor uses to preserve the confidentiality of its own confidential information. In the event that the data contains social security numbers or other Personal Identifying Information, as such term is defined in Paragraph B of this Section, the Contractor shall utilize best practice methods (e.g., encryption of electronic records) to protect the confidentiality of such data. The obligation under this Section to hold reports, information or data confidential shall not apply where the City would be required to disclose such reports, information or data pursuant to the State Freedom of Information Law (“FOIL”), provided that the Contractor provides advance notice to the City, in writing or by e-mail, that it intends to disclose such reports, information or data and the City does not inform the contractor, in writing or by e-mail, that such reports, information, or data are not subject to disclosure under FOIL.
B. The Contractor shall provide notice to the Department within three (3) days of the discovery by the Contractor of any breach of security, as defined in Admin. Code § 10-501(b), of any data, encrypted or otherwise, in use by the Contractor that contains social security numbers or other personal identifying information as defined in Admin. Code § 10-501 (“Personal Identifying Information”), where such breach of security arises out of the acts or omissions of the Contractor or its employees, subcontractors, or agents. Upon the discovery of such security breach, the Contractor shall take reasonable steps to remediate the cause or causes of such breach, and shall provide notice to the Department of such steps. In the event of such breach of security, without limiting any other right of the City, the City shall have the right to withhold further payments under this Agreement for the purpose of set-off in sufficient sums to cover the
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costs of notifications and/or other actions mandated by any Law, or administrative or judicial order, to address the breach, and including any fines or disallowances imposed by the State or federal government as a result of the disclosure. The City shall also have the right to withhold further payments hereunder for the purpose of set-off in sufficient sums to cover the costs of credit monitoring services for the victims of such a breach of security by a national credit reporting agency, and/or any other commercially reasonable preventive measure. The Department shall provide the Contractor with written notice and an opportunity to comment on such measures prior to implementation. Alternatively, at the City’s discretion, or if monies remaining to be earned or paid under this Agreement are insufficient to cover the costs detailed above, the Contractor shall pay directly for the costs, detailed above, if any.
C. The Contractor shall restrict access to confidential information to persons who have a legitimate work related purpose to access such information. The Contractor agrees that it will instruct its officers, employees, and agents to maintain the confidentiality of any and all information required to be kept confidential by this Agreement.
D. The Contractor, and its officers, employees, and agents shall notify the Department, at any time either during or after completion or termination of this Agreement, of any intended statement to the press or any intended issuing of any material for publication in any media of communication (print, news, television, radio, Internet, etc.) regarding the services provided or the data collected pursuant to this Agreement at least twenty-four (24) hours prior to any statement to the press or at least five (5) business Days prior to the submission of the material for publication, or such shorter periods as are reasonable under the circumstances. The Contractor may not issue any statement or submit any material for publication that includes confidential information as prohibited by this Section 5.08.
E. At the request of the Department, the Contractor shall return to the Department any and all confidential information in the possession of the Contractor or its subcontractors. If the Contractor or its subcontractors are legally required to retain any confidential information, the Contractor shall notify the Department in writing and set forth the confidential information that it intends to retain and the reasons why it is legally required to retain such information. The Contractor shall confer with the Department, in good faith, regarding any issues that arise from the Contractor retaining such confidential information. If the Department does not request such information, or the Law does not require otherwise, such information shall be maintained in accordance with the requirements set forth in Section 5.02.
F. A breach of this Section shall constitute a material breach of this Agreement for which the Department may terminate this Agreement pursuant to Article 10. The Department reserves any and all other rights and remedies in the event of unauthorized disclosure.
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ARTICLE 6 - COPYRIGHTS, PATENTS, INVENTIONS, AND ANTITRUST
Section 6.01 Copyrights
A. Any reports, documents, data, photographs, deliverables, and/or other materials produced pursuant to this Agreement, and any and all drafts and/or other preliminary materials in any format related to such items produced pursuant to this Agreement, shall upon their creation become the exclusive property of the City.
B. Any reports, documents, data, photographs, deliverables, and/or other materials provided pursuant to this Agreement (“Copyrightable Materials”) shall be considered “work- made-for-hire” within the meaning and purview of Section 101 of the United States Copyright Act, 17 U.S.C. § 101, and the City shall be the copyright owner thereof and of all aspects, elements and components thereof in which copyright protection might exist. To the extent that the Copyrightable Materials do not qualify as “work-made-for-hire,” the Contractor hereby irrevocably transfers, assigns and conveys exclusive copyright ownership in and to the Copyrightable Materials to the City, free and clear of any liens, claims, or other encumbrances. The Contractor shall retain no copyright or intellectual property interest in the Copyrightable Materials. The Copyrightable Materials shall be used by the Contractor for no purpose other than in the performance of this Agreement without the prior written permission of the City. The Department may grant the Contractor a license to use the Copyrightable Materials on such terms as determined by the Department and set forth in the license.
C. The Contractor acknowledges that the City may, in its sole discretion, register copyright in the Copyrightable Materials with the United States Copyright Office or any other government agency authorized to grant copyright registrations. The Contractor shall fully cooperate in this effort, and agrees to provide any and all documentation necessary to accomplish this.
D. The Contractor represents and warrants that the Copyrightable Materials: (i) are wholly original material not published elsewhere (except for material that is in the public domain); (ii) do not violate any copyright Law; (iii) do not constitute defamation or invasion of the right of privacy or publicity; and (iv) are not an infringement, of any kind, of the rights of any third party. To the extent that the Copyrightable Materials incorporate any non-original material, the Contractor has obtained all necessary permissions and clearances, in writing, for the use of such non-original material under this Agreement, copies of which shall be provided to the City upon execution of this Agreement.
E. If the services under this Agreement are supported by a federal grant of funds, the federal and State government reserves a royalty-free, non-exclusive irrevocable license to reproduce, publish, or otherwise use and to authorize others to use, for federal or State government purposes, the copyright in any Copyrightable Materials developed under this Agreement.
F. If the Contractor publishes a work dealing with any aspect of performance under this Agreement, or with the results of such performance, the City shall have a royalty-free, non-
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exclusive irrevocable license to reproduce, publish, or otherwise use such work for City governmental purposes.
Section 6.02 Patents and Inventions
The Contractor shall promptly and fully report to the Department any discovery or invention arising out of or developed in the course of performance of this Agreement. If the services under this Agreement are supported by a federal grant of funds, the Contractor shall promptly and fully report to the federal government for the federal government to make a determination as to whether patent protection on such invention shall be sought and how the rights in the invention or discovery, including rights under any patent issued thereon, shall be disposed of and administered in order to protect the public interest.
Section 6.03 Pre-existing Rights
In no case shall Sections 6.01 and 6.02 apply to, or prevent the Contractor from asserting or protecting its rights in any discovery, invention, report, document, data, photograph, deliverable, or other material in connection with or produced pursuant to this Agreement that existed prior to or was developed or discovered independently from the activities directly related to this Agreement.
Section 6.04 Antitrust
The Contractor hereby assigns, sells, and transfers to the City all right, title and interest in and to any claims and causes of action arising under the antitrust laws of the State or of the United States relating to the particular goods or services procured by the City under this Agreement.
ARTICLE 7 - INSURANCE
Section 7.01 Agreement to Insure
The Contractor shall not commence performing services under this Agreement unless and until all insurance required by this Article is in effect, and shall ensure continuous insurance coverage in the manner, form, and limits required by this Article throughout the term of the Agreement.
Section 7.02 Commercial General Liability Insurance
A. The Contractor shall maintain Commercial General Liability Insurance covering the Contractor as Named Insured and the City as an Additional Insured in the amount of at least One Million Dollars ($1,000,000) per occurrence. Such insurance shall protect the City and the Contractor from claims for property damage and/or bodily injury, including death that may arise
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from any of the operations under this Agreement. Coverage under this insurance shall be at least as broad as that provided by the most recently issued Insurance Services Office (“ISO”) Form CG 0001, and shall be "occurrence" based rather than “claims-made.”
B. Such Commercial General Liability Insurance shall name the City, together with its officials and employees, as an Additional Insured with coverage at least as broad as the most recently issued ISO Form CG 20 10.
Section 7.03 Professional Liability Insurance
A. At the Department’s direction, if professional services are provided pursuant to this Agreement, the Contractor shall maintain and submit evidence of Professional Liability Insurance appropriate to the type(s) of such services to be provided under this Agreement in the amount of at least One Million Dollars ($1,000,000) per claim. The policy or policies shall include an endorsement to cover the liability assumed by the Contractor under this Agreement arising out of the negligent performance of professional services or caused by an error, omission or negligent act of the Contractor or anyone employed by the Contractor.
B. All subcontractors of the Contractor providing professional services under this Agreement for which Professional Liability Insurance is reasonably commercially available shall also maintain such insurance in the amount of at least One Million Dollars ($1,000,000) per claim, and the Contractor shall provide to the Department, at the time of the request for subcontractor approval, evidence of such Professional Liability Insurance on forms acceptable to the Department.
C. Claims-made policies will be accepted for Professional Liability Insurance. All such policies shall have an extended reporting period option or automatic coverage of not less than two (2) years. If available as an option, the Contractor shall purchase extended reporting period coverage effective on cancellation or termination of such insurance unless a new policy is secured with a retroactive date, including at least the last policy year.
Section 7.04 Workers’ Compensation, Disability Benefits, and Employer’s Liability Insurance
The Contractor shall maintain, and ensure that each subcontractor maintains, Workers’ Compensation Insurance, Disability Benefits Insurance, and Employer’s Liability Insurance in accordance with the Laws of the State on behalf of, or with regard to, all employees providing services under this Agreement.
Section 7.05 Unemployment Insurance
To the extent required by Law, the Contractor shall provide Unemployment Insurance for its employees.
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Section 7.06 Business Automobile Liability Insurance
A. If vehicles are used in the provision of services under this Agreement, then the Contractor shall maintain Business Automobile Liability insurance in the amount of at least One Million Dollars ($1,000,000) each accident combined single limit for liability arising out of ownership, maintenance or use of any owned, non-owned, or hired vehicles to be used in connection with this Agreement. Coverage shall be at least as broad as the most recently issued ISO Form CA0001.
B. If vehicles are used for transporting hazardous materials, the Business Automobile Liability Insurance shall be endorsed to provide pollution liability broadened coverage for covered vehicles (endorsement CA 99 48) as well as proof of MCS-90.
Section 7.07 General Requirements for Insurance Coverage and Policies
A. All required insurance policies shall be maintained with companies that may lawfully issue the required policy and have an A.M. Best rating of at least A- / “VII” or a Standard and Poor’s rating of at least A, unless prior written approval is obtained from the City Law Department.
B. All insurance policies shall be primary (and non-contributing) to any insurance or self-insurance maintained by the City.
C. The Contractor shall be solely responsible for the payment of all premiums for all required insurance policies and all deductibles or self-insured retentions to which such policies are subject, whether or not the City is an insured under the policy.
D. There shall be no self-insurance program with regard to any insurance required under this Article unless approved in writing by the Commissioner. Any such self-insurance program shall provide the City with all rights that would be provided by traditional insurance required under this Article, including but not limited to the defense obligations that insurers are required to undertake in liability policies.
E. The City’s limits of coverage for all types of insurance required under this Article shall be the greater of (i) the minimum limits set forth in this Article or (ii) the limits provided to the Contractor as Named Insured under all primary, excess, and umbrella policies of that type of coverage.
Section 7.08 Proof of Insurance
A. For Workers’ Compensation Insurance, Disability Benefits Insurance, and Employer’s Liability Insurance, the Contractor shall file one of the following within ten (10) Days of award of this Agreement. ACORD forms are not acceptable proof of workers’ compensation coverage.
1. C-105.2 Certificate of Workers’ Compensation Insurance;
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2. U-26.3 -- State Insurance Fund Certificate of Workers’ Compensation Insurance;
3. Request for WC/DB Exemption (Form CE-200);
4. Equivalent or successor forms used by the New York State Workers’ Compensation Board; or
5. Other proof of insurance in a form acceptable to the City.
B. For each policy required under this Agreement, except for Workers’ Compensation Insurance, Disability Benefits Insurance, Employer’s Liability Insurance, and Unemployment Insurance, the Contractor shall file a Certificate of Insurance with the Department within ten (10) Days of award of this Agreement. All Certificates of Insurance shall be (a) in a form acceptable to the City and certify the issuance and effectiveness of such policies of insurance, each with the specified minimum limits; and (b) accompanied by the endorsement in the Contractor’s general liability policy by which the City has been made an additional insured pursuant to Section 7.02(B). All Certificate(s) of Insurance shall be accompanied by either a duly executed “Certification by Broker” in the form attached to this Appendix A or copies of all policies referenced in the Certificate of Insurance. If complete policies have not yet been issued, binders are acceptable, until such time as the complete policies have been issued, at which time such policies shall be submitted.
C. Certificates of Insurance confirming renewals of insurance shall be submitted to the Commissioner prior to the expiration date of coverage of policies required under this Article. Such Certificates of Insurance shall comply with the requirements of Section 7.08 (A) and Section 7.08(B), as applicable.
D. The Contractor shall provide the City with a copy of any policy required under this Article upon the demand for such policy by the Commissioner or the New York City Law Department.
E. Acceptance by the Commissioner of a certificate or a policy does not excuse the Contractor from maintaining policies consistent with all provisions of this Article (and ensuring that subcontractors maintain such policies) or from any liability arising from its failure to do so.
F. In the event the Contractor receives notice, from an insurance company or other person, that any insurance policy required under this Article shall expire or be cancelled or terminated for any reason, the Contractor shall immediately forward a copy of such notice to both the Commissioner [insert Agency name and appropriate address], and the New York City Comptroller, Attn: Office of Contract Administration, Municipal Building, One Centre Street, Room 1005, New York, New York 10007.
Section 7.09 Miscellaneous
A. Whenever notice of loss, damage, occurrence, accident, claim or suit is required under a general liability policy maintained in accordance with this Article, the Contractor shall
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provide the insurer with timely notice thereof on behalf of the City. Such notice shall be given even where the Contractor may not have coverage under such policy (for example, where one of Contractor’s employees was injured). Such notice shall expressly specify that “this notice is being given on behalf of the City of New York as Additional Insured” and contain the following information: the number of the insurance policy; the name of the named insured; the date and location of the damage, occurrence, or accident; the identity of the persons or things injured, damaged, or lost; and the title of the claim or suit, if applicable. The Contractor shall simultaneously send a copy of such notice to the City of New York c/o Insurance Claims Specialist, Affirmative Litigation Division, New York City Law Department, 100 Church Street, New York, New York 10007. If the Contractor fails to comply with the requirements of this paragraph, the Contractor shall indemnify the City for all losses, judgments, settlements and expenses, including reasonable attorneys’ fees, arising from an insurer’s disclaimer of coverage citing late notice by or on behalf of the City.
B. The Contractor’s failure to maintain any of the insurance required by this Article shall constitute a material breach of this Agreement. Such breach shall not be waived or otherwise excused by any action or inaction by the City at any time.
C. Insurance coverage in the minimum amounts required in this Article shall not relieve the Contractor or its subcontractors of any liability under this Agreement, nor shall it preclude the City from exercising any rights or taking such other actions as are available to it under any other provisions of this Agreement or Law.
D. The Contractor waives all rights against the City, including its officials and employees for any damages or losses that are covered under any insurance required under this Article (whether or not such insurance is actually procured or claims are paid thereunder) or any other insurance applicable to the operations of the Contractor and/or its subcontractors in the performance of this Agreement.
E. In the event the Contractor requires any subcontractor to procure insurance with regard to any operations under this Agreement and requires such subcontractor to name the Contractor as an additional insured under such insurance, the Contractor shall ensure that such entity also name the City, including its officials and employees, as an additional insured with coverage at least as broad as the most recently issued ISO form CG 20 26.
ARTICLE 8 - PROTECTION OF PERSONS AND PROPERTY AND INDEMNIFICATION
Section 8.01 Reasonable Precautions
The Contractor shall take all reasonable precautions to protect all persons and the property of the City and of others from damage, loss or injury resulting from the Contractor’s and/or its subcontractors’ operations under this Agreement.
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Section 8.02 Protection of City Property
The Contractor assumes the risk of, and shall be responsible for, any loss or damage to City property, including property and equipment leased by the City, used in the performance of this Agreement, where such loss or damage is caused by any tortious act, or failure to comply with the provisions of this Agreement or of Law by the Contractor, its officers, employees, agents or subcontractors.
Section 8.03 Indemnification
The Contractor shall defend, indemnify and hold the City, its officers and employees harmless from any and all claims or judgments for damages on account of any injuries or death to any person or damage to any property and from costs and expenses to which the City, its officers and employees may be subjected or which it may suffer or incur allegedly arising out of or in connection with any operations of the Contractor and/or its subcontractors to the extent resulting from any negligent act of commission or omission, any intentional tortious act, or failure to comply with the provisions of this Agreement or of the Laws. Insofar as the facts or Law relating to any claim would preclude the City from being completely indemnified by the Contractor, the City shall be partially indemnified by the Contractor to the fullest extent permitted by Law. In the event the Contractor fails to provide a defense of the City of a claim upon demand, the Contractor shall reimburse the City for all reasonable attorney's fees and expenses. Notwithstanding the above, where a claim relates exclusively to the negligent performance of professional services, the Contractor is not obligated to provide the City or its officers and employees with a defense or reimbursement for attorney’s fees.
Section 8.04 Infringement Indemnification
The Contractor shall defend, indemnify and hold the City harmless from any and all claims (even if the allegations of the lawsuit are without merit) or judgments for damages and from costs and expenses to which the City may be subject to or which it may suffer or incur allegedly arising out of or in connection with any infringement by the Contractor of any copyright, trade secrets, trademark or patent rights or any other property or personal right of any third party by the Contractor and/or its subcontractors in the performance of this Agreement. The Contractor shall defend, indemnify, and hold the City harmless regardless of whether or not the alleged infringement arises out of compliance with the Agreement’s scope of services/scope of work. Insofar as the facts or Law relating to any claim would preclude the City from being completely indemnified by the Contractor, the City shall be partially indemnified by the Contractor to the fullest extent permitted by Law.
Section 8.05 Indemnification Obligations Not Limited By Insurance Obligation
The indemnification provisions set forth in this Article shall not be limited in any way by the Contractor’s obligations to obtain and maintain insurance as provided in this Agreement.
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Section 8.06 Actions By or Against Third Parties
A. In the event any claim is made or any action brought in any way relating to Agreement, other than an action between the City and the Contractor, the Contractor shall diligently render to the City without additional compensation all assistance which the City may reasonably require of the Contractor.
B. The Contractor shall report to the Department in writing within five (5) business Days of the initiation by or against the Contractor of any legal action or proceeding in connection with or relating to this Agreement.
Section 8.07 Withholding of Payments
A. In the event that any claim is made or any action is brought against the City for which the Contractor may be required to indemnify the City pursuant to this Agreement, the City shall have the right to withhold further payments under this Agreement for the purpose of set-off in sufficient sums to cover the said claim or action.
B. In the event that any City property is lost or damaged as set forth in Section 8.02, except for normal wear and tear, the City shall have the right to withhold further payments under this Agreement for the purpose of set-off in sufficient sums to cover such loss or damage.
C. The City shall not, however, impose a setoff in the event that an insurance company that provided liability insurance pursuant to Article 7 above has accepted the City's tender of the claim or action without a reservation of rights.
D. The Department may, at its option, withhold for purposes of set-off any monies due to the Contractor under this Agreement up to the amount of any disallowances or questioned costs resulting from any audits of the Contractor or to the amount of any overpayment to the Contractor with regard to this Agreement.
E. The rights and remedies of the City provided for in this Section shall not be exclusive and are in addition to any other rights and remedies provided by Law or this Agreement.
Section 8.08 No Third Party Rights
The provisions of this Agreement shall not be deemed to create any right of action in favor of third parties against the Contractor or the City or their respective officers and employees.
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ARTICLE 9 - CONTRACT CHANGES
Section 9.01 Contract Changes
Changes to this Agreement may be made only as duly authorized by the ACCO or his or her designee and in accordance with the PPB Rules. Any amendment or change to this Agreement shall not be valid unless made in writing and signed by authorized representatives of both parties. Contractors deviating from the requirements of this Agreement without a duly approved and executed change order document, or written contract modification or amendment, do so at their own risk.
Section 9.02 Changes Through Fault of Contractor
In the event that any change is required in the data, documents, deliverables, or other services to be provided under this Agreement because of negligence or error of the Contractor, no additional compensation shall be paid to the Contractor for making such change, and the Contractor is obligated to make such change without additional compensation.
ARTICLE 10 - TERMINATION, DEFAULT, AND REDUCTIONS IN FUNDING
Section 10.01 Termination by the City Without Cause
A. The City shall have the right to terminate this Agreement, in whole or in part, without cause, in accordance with the provisions of Section 10.05.
B. If the City terminates this Agreement pursuant to this Section, the following provisions apply. The City shall not incur or pay any further obligation pursuant to this Agreement beyond the termination date set by the City pursuant to Section 10.05. The City shall pay for services provided in accordance with this Agreement prior to the termination date. In addition, any obligation necessarily incurred by the Contractor on account of this Agreement prior to receipt of notice of termination and falling due after the termination date shall be paid by the City in accordance with the terms of this Agreement. In no event shall such obligation be construed as including any lease or other occupancy agreement, oral or written, entered into between the Contractor and its landlord.
Section 10.02 Reductions in Federal, State and/or City Funding
A. This Agreement is funded in whole or in part by funds secured from the federal, State and/or City governments. Should there be a reduction or discontinuance of such funds by action of the federal, State and/or City governments, the City shall have, in its sole discretion, the right to terminate this Agreement in whole or in part, or to reduce the funding and/or level of services of this Agreement caused by such action by the federal, State and/or City governments, including, in the case of the reduction option, but not limited to, the reduction or elimination of programs, services or service components; the reduction or elimination of contract-reimbursable
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staff or staff-hours, and corresponding reductions in the budget of this Agreement and in the total amount payable under this Agreement. Any reduction in funds pursuant to this Section shall be accompanied by an appropriate reduction in the services performed under this Agreement.
B. In the case of the reduction option referred to in Paragraph A, above, any such reduction shall be effective as of the date set forth in a written notice thereof to the Contractor, which shall be not less than thirty (30) Days from the date of such notice. Prior to sending such notice of reduction, the Department shall advise the Contractor that such option is being exercised and afford the Contractor an opportunity to make within seven (7) Days any suggestion(s) it may have as to which program(s), service(s), service component(s), staff or staff- hours might be reduced or eliminated, provided, however, that the Department shall not be bound to utilize any of the Contractor’s suggestions and that the Department shall have sole discretion as to how to effectuate the reductions.
C. If the City reduces funding pursuant to this Section, the following provisions apply. The City shall pay for services provided in accordance with this Agreement prior to the reduction date. In addition, any obligation necessarily incurred by the Contractor on account of this Agreement prior to receipt of notice of reduction and falling due after the reduction date shall be paid by the City in accordance with the terms of this Agreement. In no event shall such obligation be construed as including any lease or other occupancy agreement, oral or written, entered into between the Contractor and its landlord.
D. To the extent that the reduction in public funds is a result of the State determining that the Contractor may receive medical assistance funds pursuant to title eleven of article five of the Social Services Law to fund the services contained within the scope of a program under this Agreement, then the notice and effective date provisions of this section shall not apply, and the Department may reduce such public funds authorized under this Agreement by informing the Contractor of the amount of the reduction and revising attachments to this agreement as appropriate.
Section 10.03 Contractor Default
A. The City shall have the right to declare the Contractor in default:
1. Upon a breach by the Contractor of a material term or condition of this Agreement, including unsatisfactory performance of the services;
2. Upon insolvency or the commencement of any proceeding by or against the Contractor, either voluntarily or involuntarily, under the Bankruptcy Code or relating to the insolvency, receivership, liquidation, or composition of the Contractor for the benefit of creditors;
3. If the Contractor refuses or fails to proceed with the services under the Agreement when and as directed by the Commissioner;
4. If the Contractor or any of its officers, directors, partners, five percent (5%) or greater shareholders, principals, or other employee or person substantially
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involved in its activities are indicted or convicted after execution of the Agreement under any state or federal law of any of the following:
a. a criminal offense incident to obtaining or attempting to obtain or performing a public or private contract;
b. fraud, embezzlement, theft, bribery, forgery, falsification, or destruction of records, or receiving stolen property;
c. a criminal violation of any state or federal antitrust law;
d. violation of the Racketeer Influence and Corrupt Organization Act, 18 U.S.C. § 1961 et seq., or the Mail Fraud Act, 18 U.S.C. § 1341 et seq., for acts in connection with the submission of bids or proposals for a public or private contract;
e. conspiracy to commit any act or omission that would constitute grounds for conviction or liability under any statute described in subparagraph (d) above; or
f. an offense indicating a lack of business integrity that seriously and directly affects responsibility as a City vendor.
5. If the Contractor or any of its officers, directors, partners, five percent (5%) or greater shareholders, principals, or other employee or person substantially involved in its activities are subject to a judgment of civil liability under any state or federal antitrust law for acts or omissions in connection with the submission of bids or proposals for a public or private contract; or
6. If the Contractor or any of its officers, directors, partners, five percent (5%) or greater shareholders, principals, or other employee or person substantially involved in its activities makes or causes to be made any false, deceptive, or fraudulent material statement, or fail to make a required material statement in any bid, proposal, or application for City or other government work.
B. The right to declare the Contractor in default shall be exercised by sending the Contractor a written notice of the conditions of default, signed by the Commissioner, setting forth the ground or grounds upon which such default is declared (“Notice to Cure”). The Contractor shall have ten (10) Days from receipt of the Notice to Cure or any longer period that is set forth in the Notice to Cure to cure the default. The Commissioner may temporarily suspend services under the Agreement pending the outcome of the default proceedings pursuant to this Section.
C. If the conditions set forth in the Notice to Cure are not cured within the period set forth in the Notice to Cure, the Commissioner may declare the Contractor in default pursuant to this Section. Before the Commissioner may exercise his or her right to declare the Contractor in default, the Commissioner shall give the Contractor an opportunity to be heard upon not less than five (5) business days notice. The Commissioner may, in his or her discretion, provide for such
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opportunity to be in writing or in person. Such opportunity to be heard shall not occur prior to the end of the cure period but notice of such opportunity to be heard may be given prior to the end of the cure period and may be given contemporaneously with the Notice to Cure.
D. After the opportunity to be heard, the Commissioner may terminate the Agreement, in whole or in part, upon finding the Contractor in default pursuant to this Section, in accordance with the provisions of Section 10.05.
E. The Commissioner, after declaring the Contractor in default, may have the services under the Agreement completed by such means and in such manner, by contract with or without public letting, or otherwise, as he or she may deem advisable in accordance with applicable PPB Rules. After such completion, the Commissioner shall certify the expense incurred in such completion, which shall include the cost of re-letting. Should the expense of such completion, as certified by the Commissioner, exceed the total sum which would have been payable under the Agreement if it had been completed by the Contractor, any excess shall be promptly paid by the Contractor upon demand by the City. The excess expense of such completion, including any and all related and incidental costs, as so certified by the Commissioner, and any liquidated damages assessed against the Contractor, may be charged against and deducted out of monies earned by the Contractor.
Section 10.04 Force Majeure
A. For purposes of this Agreement, a force majeure event is an act or event beyond the control and without any fault or negligence of the Contractor (“Force Majeure Event”). Such events may include, but are not limited to, fire, flood, earthquake, storm or other natural disaster, civil commotion, war, terrorism, riot, and labor disputes not brought about by any act or omission of the Contractor.
B. In the event the Contractor cannot comply with the terms of the Agreement (including any failure by the Contractor to make progress in the performance of the services) because of a Force Majeure Event, then the Contractor may ask the Commissioner to excuse the nonperformance and/or terminate the Agreement. If the Commissioner, in his or her reasonable discretion, determines that the Contractor cannot comply with the terms of the Agreement because of a Force Majeure Event, then the Commissioner shall excuse the nonperformance and may terminate the Agreement. Such a termination shall be deemed to be without cause.
C. If the City terminates the Agreement pursuant to this Section, the following provisions apply. The City shall not incur or pay any further obligation pursuant to this Agreement beyond the termination date. The City shall pay for services provided in accordance with this Agreement prior to the termination date. Any obligation necessarily incurred by the Contractor on account of this Agreement prior to receipt of notice of termination and falling due after the termination date shall be paid by the City in accordance with the terms of this Agreement. In no event shall such obligation be construed as including any lease or other occupancy agreement, oral or written, entered into between the Contractor and its landlord.
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Section 10.05 Procedures for Termination
A. The Department and/or the City shall give the Contractor written notice of any termination of this Agreement. Such notice shall specify the applicable provision(s) under which the Agreement is terminated and the effective date of the termination. Except as otherwise provided in this Agreement, the notice shall comply with the provisions of this Section. For termination without cause, the effective date of the termination shall not be less than ten (10) Days from the date the notice is personally delivered, or fifteen (15) Days from the date the notice is either sent by certified mail, return receipt requested, or sent by fax and deposited in a post office box regularly maintained by the United States Postal Service in a postage pre-paid envelope. In the case of termination for default, the effective date of the termination shall be as set forth above for a termination without cause or such earlier date as the Commissioner may determine. If the City terminates the Agreement in part, the Contractor shall continue the performance of the Agreement to the extent not terminated.
B. Upon termination or expiration of this Agreement, the Contractor shall comply with the City close-out procedures, including but not limited to:
1. Accounting for and refunding to the Department, within forty-five (45) Days, any unexpended funds which have been advanced to the Contractor pursuant to this Agreement;
2. Furnishing within forty-five (45) Days an inventory to the Department of all equipment, appurtenances and property purchased through or provided under this Agreement and carrying out any Department or City directive concerning the disposition of such equipment, appurtenances and property;
3. Turning over to the Department or its designees all books, records, documents and material specifically relating to this Agreement that the Department has requested be turned over;
4. Submitting to the Department, within ninety (90) Days, a final statement and report relating to the Agreement. The report shall be made by a certified public accountant or a licensed public accountant; and
5. Providing reasonable assistance to the Department in the transition, if any, to a new contractor.
Section 10.06 Miscellaneous Provisions
A. The Commissioner, in addition to any other powers set forth in this Agreement or by operation of Law, may suspend, in whole or in part, any part of the services to be provided under this Agreement whenever in his or her judgment such suspension is required in the best interest of the City. If the Commissioner suspends this Agreement pursuant to this Section, the City shall not incur or pay any further obligation pursuant to this Agreement beyond the suspension date until such suspension is lifted. The City shall pay for services provided in
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accordance with this Agreement prior to the suspension date. In addition, any obligation necessarily incurred by the Contractor on account of this Agreement prior to receipt of notice of suspension and falling due during the suspension period shall be paid by the City in accordance with the terms of this Agreement.
B. Notwithstanding any other provisions of this Agreement, the Contractor shall not be relieved of liability to the City for damages sustained by the City by virtue of the Contractor’s breach of the Agreement, and the City may withhold payments to the Contractor for the purpose of set-off in the amount of damages due to the City from the Contractor.
C. The rights and remedies of the City provided in this Article shall not be exclusive and are in addition to all other rights and remedies provided by Law or under this Agreement.
ARTICLE 11 - PROMPT PAYMENT AND ELECTRONIC FUNDS TRANSFER
Section 11.01 Prompt Payment
A. The prompt payment provisions of PPB Rule § 4-06 are applicable to payments made under this Agreement. The provisions generally require the payment to the Contractor of interest on payments made after the required payment date, as set forth in the PPB Rules.
B. The Contractor shall submit a proper invoice to receive payment, except where the Agreement provides that the Contractor will be paid at predetermined intervals without having to submit an invoice for each scheduled payment.
C. Determination of interest due will be made in accordance with the PPB Rules and the applicable rate of interest shall be the rate in effect at the time of payment.
Section 11.02 Electronic Funds Transfer
A. In accordance with Admin. Code § 6-107.1, the Contractor agrees to accept payments under this Agreement from the City by electronic funds transfer. An electronic funds transfer is any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument or computer or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account. Prior to the first payment made under this Agreement, the Contractor shall designate one financial institution or other authorized payment agent and shall complete the “EFT Vendor Payment Enrollment Form” available from the Agency or at http://www.nyc.gov/dof in order to provide the commissioner of the Department of Finance with information necessary for the Contractor to receive electronic funds transfer payments through the designated financial institution or authorized payment agent. The crediting of the amount of a payment to the appropriate account on the books of a financial institution or other authorized payment agent designated by the Contractor shall constitute full satisfaction by the City for the amount of the payment under this Agreement. The account information supplied by the
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Contractor to facilitate the electronic funds transfer shall remain confidential to the fullest extent provided by Law.
B. The Agency Head may waive the application of the requirements of this Section to payments on contracts entered into pursuant to Charter § 315. In addition, the commissioner of the Department of Finance and the Comptroller may jointly issue standards pursuant to which the Agency may waive the requirements of this Section for payments in the following circumstances: (i) for individuals or classes of individuals for whom compliance imposes a hardship; (ii) for classifications or types of checks; or (iii) in other circumstances as may be necessary in the best interest of the City.
C. This Section is applicable to contracts valued at Twenty-Five Thousand Dollars ($25,000) and above.
ARTICLE 12 - CLAIMS
Section 12.01 Choice of Law
This Agreement shall be deemed to be executed in the City and State of New York, regardless of the domicile of the Contractor, and shall be governed by and construed in accordance with the Laws of the State of New York (notwithstanding New York choice of law or conflict of law principles) and the Laws of the United States, where applicable.
Section 12.02 Jurisdiction and Venue
The parties agree that any and all claims asserted by or against the City arising under or related to this Agreement shall solely be heard and determined either in the courts of the United States located in the City or in the courts of the State located in the City and County of New York. The parties shall consent to the dismissal and/or transfer of any claims asserted in any other venue or forum to the proper venue or forum. If the Contractor initiates any action in breach of this Section, the Contractor shall be responsible for and shall promptly reimburse the City for any attorneys’ fees incurred by the City in removing the action to a proper court consistent with this Section.
Section 12.03 Resolution of Disputes
A. Except as provided in Subparagraphs (A)(1) and (A)(2) below, all disputes between the City and the Contractor that arise under, or by virtue of, this Agreement shall be finally resolved in accordance with the provisions of this Section and PPB Rule § 4-09. This procedure shall be the exclusive means of resolving any such disputes.
1. This Section shall not apply to disputes concerning matters dealt with in other sections of the PPB Rules or to disputes involving patents, copyrights, trademarks, or trade secrets (as interpreted by the courts of New York State) relating to proprietary rights in computer software, or to termination other than for cause.
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2. For construction and construction-related services this Section shall apply only to disputes about the scope of work delineated by the Agreement, the interpretation of Agreement documents, the amount to be paid for extra work or disputed work performed in connection with the Agreement, the conformity of the Contractor’s work to the Agreement, and the acceptability and quality of the Contractor’s work; such disputes arise when the City Engineer, City Resident Engineer, City Engineering Audit Officer, or other designee of the Agency Head makes a determination with which the Contractor disagrees. For construction, this Section shall not apply to termination of the Agreement for cause or other than for cause.
B. All determinations required by this Section shall be clearly stated, with a reasoned explanation for the determination based on the information and evidence presented to the party making the determination. Failure to make such determination within the time required by this Section shall be deemed a non-determination without prejudice that will allow application to the next level.
C. During such time as any dispute is being presented, heard, and considered pursuant to this Section, the Agreement terms shall remain in full force and effect and, unless otherwise directed by the ACCO or Engineer, the Contractor shall continue to perform work in accordance with the Agreement and as directed by the ACCO or City Engineer, City Resident Engineer, City Engineering Audit Officer, or other designee of the Agency Head. Failure of the Contractor to continue the work as directed shall constitute a waiver by the Contractor of any and all claims being presented pursuant to this Section and a material breach of contract.
D. Presentation of Dispute to Agency Head.
1. Notice of Dispute and Agency Response. The Contractor shall present its dispute in writing (“Notice of Dispute”) to the Agency Head within the time specified herein, or, if no time is specified, within thirty (30) Days of receiving written notice of the determination or action that is the subject of the dispute. This notice requirement shall not be read to replace any other notice requirements contained in the Agreement. The Notice of Dispute shall include all the facts, evidence, documents, or other basis upon which the Contractor relies in support of its position, as well as a detailed computation demonstrating how any amount of money claimed by the Contractor in the dispute was arrived at. Within thirty (30) Days after receipt of the complete Notice of Dispute, the ACCO or, in the case of construction or construction-related services, the City Engineer, City Resident Engineer, City Engineering Audit Officer, or other designee of the Agency Head, shall submit to the Agency Head all materials he or she deems pertinent to the dispute. Following initial submissions to the Agency Head, either party may demand of the other the production of any document or other material the demanding party believes may be relevant to the dispute. The requested party shall produce all relevant materials that are not otherwise protected by a legal privilege recognized by the courts of New York State. Any question of relevancy shall be determined by the Agency Head whose decision shall be final. Willful failure of the Contractor to produce any requested material whose relevancy the Contractor has not disputed, or whose relevancy has been affirmatively determined, shall constitute a waiver by the Contractor of its claim.
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2. Agency Head Inquiry. The Agency Head shall examine the material and may, in his or her discretion, convene an informal conference with the Contractor and the ACCO and, in the case of construction or construction-related services, the City Engineer, City Resident Engineer, City Engineering Audit Officer, or other designee of the Agency Head, to resolve the issue by mutual consent prior to reaching a determination. The Agency Head may seek such technical or other expertise as he or she shall deem appropriate, including the use of neutral mediators, and require any such additional material from either or both parties as he or she deems fit. The Agency Head’s ability to render, and the effect of, a decision hereunder shall not be impaired by any negotiations in connection with the dispute presented, whether or not the Agency Head participated therein. The Agency Head may or, at the request of any party to the dispute, shall compel the participation of any other contractor with a contract related to the work of this Agreement and that contractor shall be bound by the decision of the Agency Head. Any contractor thus brought into the dispute resolution proceeding shall have the same rights and obligations under this Section as the Contractor initiating the dispute.
3. Agency Head Determination. Within thirty (30) Days after the receipt of all materials and information, or such longer time as may be agreed to by the parties, the Agency Head shall make his or her determination and shall deliver or send a copy of such determination to the Contractor and ACCO and, in the case of construction or construction-related services, the City Engineer, City Resident Engineer, City Engineering Audit Officer, or other designee of the Agency Head, together with a statement concerning how the decision may be appealed.
4. Finality of Agency Head Decision. The Agency Head’s decision shall be final and binding on all parties, unless presented to the Contract Dispute Resolution Board (“CDRB”) pursuant to this Section. The City may not take a petition to the CDRB. However, should the Contractor take such a petition, the City may seek, and the CDRB may render, a determination less favorable to the Contractor and more favorable to the City than the decision of the Agency Head.
E. Presentation of Dispute to the Comptroller. Before any dispute may be brought by the Contractor to the CDRB, the Contractor must first present its claim to the Comptroller for his or her review, investigation, and possible adjustment.
1. Time, Form, and Content of Notice. Within thirty (30) Days of receipt of a decision by the Agency Head, the Contractor shall submit to the Comptroller and to the Agency Head a Notice of Claim regarding its dispute with the Agency. The Notice of Claim shall consist of (i) a brief statement of the substance of the dispute, the amount of money, if any, claimed and the reason(s) the Contractor contends the dispute was wrongly decided by the Agency Head; (ii) a copy of the decision of the Agency Head; and (iii) a copy of all materials submitted by the Contractor to the Agency, including the Notice of Dispute. The Contractor may not present to the Comptroller any material not presented to the Agency Head, except at the request of the Comptroller.
2. Agency Response. Within thirty (30) Days of receipt of the Notice of Claim, the Agency shall make available to the Comptroller a copy of all material
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submitted by the Agency to the Agency Head in connection with the dispute. The Agency may not present to the Comptroller any material not presented to the Agency Head, except at the request of the Comptroller.
3. Comptroller Investigation. The Comptroller may investigate the claim in dispute and, in the course of such investigation, may exercise all powers provided in Admin. Code §§ 7-201 and 7-203. In addition, the Comptroller may demand of either party, and such party shall provide, whatever additional material the Comptroller deems pertinent to the claim, including original business records of the Contractor. Willful failure of the Contractor to produce within fifteen (15) Days any material requested by the Comptroller shall constitute a waiver by the Contractor of its claim. The Comptroller may also schedule an informal conference to be attended by the Contractor, Agency representatives, and any other personnel desired by the Comptroller.
4. Opportunity of Comptroller to Compromise or Adjust Claim. The Comptroller shall have forty-five (45) Days from his or her receipt of all materials referred to in Paragraph (E)(3) above to investigate the disputed claim. The period for investigation and compromise may be further extended by agreement between the Contractor and the Comptroller, to a maximum of ninety (90) Days from the Comptroller’s receipt of all the materials. The Contractor may not present its petition to the CDRB until the period for investigation and compromise delineated in this Paragraph has expired. In compromising or adjusting any claim hereunder, the Comptroller may not revise or disregard the terms of the Agreement.
F. Contract Dispute Resolution Board. There shall be a Contract Dispute Resolution Board composed of:
1. the chief administrative law judge of the Office of Administrative Trials and Hearings (“OATH”) or his or her designated OATH administrative law judge, who shall act as chairperson, and may adopt operational procedures and issue such orders consistent with this Section as may be necessary in the execution of the CDRB’s functions, including, but not limited to, granting extensions of time to present or respond to submissions;
2. the City Chief Procurement Officer (“CCPO”) or his or her designee; any designee shall have the requisite background to consider and resolve the merits of the dispute and shall not have participated personally and substantially in the particular matter that is the subject of the dispute or report to anyone who so participated; and
3. a person with appropriate expertise who is not an employee of the City. This person shall be selected by the presiding administrative law judge from a prequalified panel of individuals, established, and administered by OATH, with appropriate background to act as decision-makers in a dispute. Such individuals may not have a contract or dispute with the City or be an officer or employee of any company or organization that does, or regularly represent persons, companies, or organizations having disputes with the City.
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G. Petition to CDRB. In the event the claim has not been settled or adjusted by the Comptroller within the period provided in this Section, the Contractor, within thirty (30) Days thereafter, may petition the CDRB to review the Agency Head determination.
1. Form and Content of Petition by the Contractor. The Contractor shall present its dispute to the CDRB in the form of a petition, which shall include (i) a brief statement of the substance of the dispute, the amount of money, if any, claimed, and the reason(s) the Contractor contends that the dispute was wrongly decided by the Agency Head; (ii) a copy of the decision of the Agency Head; (iii) copies of all materials submitted by the Contractor to the Agency; (iv) a copy of the decision of the Comptroller, if any, and (v) copies of all correspondence with, and material submitted by the Contractor to, the Comptroller’s Office. The Contractor shall concurrently submit four complete sets of the petition: one to the Corporation Counsel (Attn: Commercial and Real Estate Litigation Division), and three to the CDRB at OATH’s offices, with proof of service on the Corporation Counsel. In addition, the Contractor shall submit a copy of the statement of the substance of the dispute, cited in (i) above, to both the Agency Head and the Comptroller.
2. Agency Response. Within thirty (30) Days of receipt of the petition by the Corporation Counsel, the Agency shall respond to the statement of the Contractor and make available to the CDRB all material it submitted to the Agency Head and Comptroller. Three complete copies of the Agency response shall be submitted to the CDRB at OATH’s offices and one to the Contractor. Extensions of time for submittal of the Agency response shall be given as necessary upon a showing of good cause or, upon the consent of the parties, for an initial period of up to thirty (30) Days.
3. Further Proceedings. The CDRB shall permit the Contractor to present its case by submission of memoranda, briefs, and oral argument. The CDRB shall also permit the Agency to present its case in response to the Contractor by submission of memoranda, briefs, and oral argument. If requested by the Corporation Counsel, the Comptroller shall provide reasonable assistance in the preparation of the Agency’s case. Neither the Contractor nor the Agency may support its case with any documentation or other material that was not considered by the Comptroller, unless requested by the CDRB. The CDRB, in its discretion, may seek such technical or other expert advice as it shall deem appropriate and may seek, on it own or upon application of a party, any such additional material from any party as it deems fit. The CDRB, in its discretion, may combine more than one dispute between the parties for concurrent resolution.
4. CDRB Determination. Within forty-five (45) Days of the conclusion of all submissions and oral arguments, the CDRB shall render a decision resolving the dispute. In an unusually complex case, the CDRB may render its decision in a longer period of time, not to exceed ninety (90) Days, and shall so advise the parties at the commencement of this period. The CDRB’s decision must be consistent with the terms of this Agreement. Decisions of the CDRB shall only resolve matters before the CDRB and shall not have precedential effect with respect to matters not before the CDRB.
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5. Notification of CDRB Decision. The CDRB shall send a copy of its decision to the Contractor, the ACCO, the Corporation Counsel, the Comptroller, the CCPO, and, in the case of construction or construction-related services, the City Engineer, City Resident Engineer, City Engineering Audit Officer, or other designee of the Agency Head. A decision in favor of the Contractor shall be subject to the prompt payment provisions of the PPB Rules. The required payment date shall be thirty (30) Days after the date the parties are formally notified of the CDRB’s decision.
6. Finality of CDRB Decision. The CDRB’s decision shall be final and binding on all parties. Any party may seek review of the CDRB’s decision solely in the form of a challenge, filed within four months of the date of the CDRB’s decision, in a court of competent jurisdiction of the State of New York, County of New York pursuant to Article 78 of the Civil Practice Law and Rules. Such review by the court shall be limited to the question of whether or not the CDRB’s decision was made in violation of lawful procedure, was affected by an error of Law, or was arbitrary and capricious or an abuse of discretion. No evidence or information shall be introduced or relied upon in such proceeding that was not presented to the CDRB in accordance with PPB Rules § 4- 09.
H. Any termination, cancellation, or alleged breach of the Agreement prior to or during the pendency of any proceedings pursuant to this Section shall not affect or impair the ability of the Agency Head or CDRB to make a binding and final decision pursuant to this Section.
Section 12.04 Claims and Actions
A. Any claim against the City or Department based on this Agreement or arising out of this Agreement that is not subject to dispute resolution under the PPB Rules or this Agreement shall not be made or asserted in any legal proceeding, unless the Contractor shall have strictly complied with all requirements relating to the giving of notice and of information with respect to such claims as provided in this Agreement.
B. No action shall be instituted or maintained on any such claims unless such action shall be commenced within six (6) months after the date of filing with the Comptroller of the certificate for the final payment under this Agreement, or within six (6) months of the termination or expiration of this Agreement, or within six (6) months after the accrual of the cause of action, whichever first occurs.
Section 12.05 No Claim Against Officers, Agents or Employees
No claim shall be made by the Contractor against any officer, agent, or employee of the City in their personal capacity for, or on account of, anything done or omitted in connection with this Agreement.
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Section 12.06 General Release
The acceptance by the Contractor or its assignees of the final payment under this Agreement, whether by check, wire transfer, or other means, and whether pursuant to invoice, voucher, judgment of any court of competent jurisdiction or any other administrative means, shall constitute and operate as a release of the City from any and all claims of and liability to the Contractor, of which the Contractor was aware or should reasonably have been aware, arising out of the performance of this Agreement based on actions of the City prior to such acceptance of final payment, excepting any disputes that are the subject of pending dispute resolution procedures.
Section 12.07 No Waiver
Waiver by either the Department or the Contractor of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of the Agreement unless and until the same shall be agreed to in writing by the parties as set forth in Section 9.01.
ARTICLE 13 - APPLICABLE LAWS
Section 13.01 PPB Rules
This Agreement is subject to the PPB Rules. In the event of a conflict between the PPB Rules and a provision of this Agreement, the PPB Rules shall take precedence.
Section 13.02 All Legal Provisions Deemed Included
Each and every provision required by Law to be inserted in this Agreement is hereby deemed to be a part of this Agreement, whether actually inserted or not.
Section 13.03 Severability / Unlawful Provisions Deemed Stricken
If this Agreement contains any unlawful provision not an essential part of the Agreement and which shall not appear to have been a controlling or material inducement to the making of this Agreement, the unlawful provision shall be deemed of no effect and shall, upon notice by either party, be deemed stricken from the Agreement without affecting the binding force of the remainder.
Section 13.04 Compliance With Laws
The Contractor shall perform all services under this Agreement in accordance with all applicable Laws as are in effect at the time such services are performed.
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Section 13.05 Americans with Disabilities Act (ADA)
A. This Agreement is subject to the provisions of Subtitle A of Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131 et seq. (“ADA”) and regulations promulgated pursuant thereto, see 28 CFR Part 35. The Contractor shall not discriminate against an individual with a disability, as defined in the ADA, in providing services, programs, or activities pursuant to this Agreement. If directed to do so by the Department to ensure the Contractor’s compliance with the ADA during the term of this Agreement, the Contractor shall prepare a plan (“Compliance Plan”) which lists its program site(s) and describes in detail, how it intends to make the services, programs and activities set forth in the scope of services herein readily accessible and usable by individuals with disabilities at such site(s). In the event that the program site is not readily accessible and usable by individuals with disabilities, contractor shall also include in the Compliance Plan, a description of reasonable alternative means and methods that result in making the services, programs or activities provided under this Agreement, readily accessible to and usable by individuals with disabilities, including but not limited to people with visual, auditory or mobility disabilities. The Contractor shall submit the Compliance Plan to the ACCO for review within ten (10) Days after being directed to do so and shall abide by the Compliance Plan and implement any action detailed in the Compliance Plan to make the services, programs, or activities accessible and usable by the disabled.
B. The Contractor’s failure to either submit a Compliance Plan as required herein or implement an approved Compliance Plan may be deemed a material breach of this Agreement and result in the City terminating this Agreement.
Section 13.06 Voter Registration
A. Participating Agencies. Pursuant to Charter § 1057-a, if this Agreement is with a participating City agency and the Contractor has regular contact with the public in the daily administration of its business, the Contractor must comply with the requirements of this Section. The participating City agencies are: the Administration for Children’s Services; the City Clerk; the Civilian Complaint Review Board; the Commission on Human Rights; Community Boards; the Department of Small Business Services; the Department of Citywide Administrative Services; the Department of Consumer Affairs; the Department of Correction; the Department of Environmental Protection; the Department of Finance; the Department of Health and Mental Health; the Department of Homeless Services; the Department of Housing Preservation and Development; the Department of Parks and Recreation; the Department of Probation; the Taxi and Limousine Commission; the Department of Transportation; and the Department of Youth and Community Development.
B. Distribution of Voter Registration Forms. In accordance with Charter § 1057-a, the Contractor, if it has regular contact with the public in the daily administration of its business under this Agreement, hereby agrees as follows:
1. The Contractor shall provide and distribute voter registration forms to all persons together with written applications for services, renewal, or recertification for services and change of address relating to such services. Such voter registration forms
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shall be provided to the Contractor by the City. The Contractor should be prepared to provide forms written in Spanish or Chinese, and shall obtain a sufficient supply of such forms from the City.
2. The Contractor shall also include a voter registration form with any Contractor communication sent through the United States mail for the purpose of supplying clients with materials for application, renewal, or recertification for services and change of address relating to such services. If forms written in Spanish or Chinese are not provided in such mailing, the Contractor shall provide such forms upon the Department’s request.
3. The Contractor shall, subject to approval by the Department, incorporate an opportunity to request a voter registration application into any application for services, renewal, or recertification for services and change of address relating to such services provided on computer terminals, the World Wide Web or the Internet. Any person indicating that they wish to be sent a voter registration form via computer terminals, the World Wide Web or the Internet shall be sent such a form by the Contractor or be directed, in a manner subject to approval by the Department, to a link on that system where such a form may be downloaded.
4. The Contractor shall, at the earliest practicable or next regularly scheduled printing of its own forms, subject to approval by the Department, physically incorporate the voter registration forms with its own application forms in a manner that permits the voter registration portion to be detached therefrom. Until such time when the Contractor amends its form, the Contractor should affix or include a postage-paid City Board of Elections voter registration form to or with its application, renewal, recertification, and change of address forms.
5. The Contractor shall prominently display in its public office, subject to approval by the Department, promotional materials designed and approved by the City or State Board of Elections.
6. For the purposes of Paragraph A of this Section, the word “Contractor” shall be deemed to include subcontractors having regular contact with the public in the daily administration of their business.
7. The provisions of Paragraph A of this Section shall not apply to services that must be provided to prevent actual or potential danger to life, health, or safety of any individual or of the public.
C. Assistance in Completing Voter Registration Forms. In accordance with Charter § 1057-a, the Contractor hereby agrees as follows:
1. In the event the Department provides assistance in completing distributed voter registration forms, the Contractor shall also provide such assistance, in the manner and to the extent specified by the Department.
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2. In the event the Department receives and transmits completed registration forms from applicants who wish to have the forms transmitted to the City Board of Elections, the Contractor shall similarly provide such service, in the manner and to the extent specified by the Department.
3. If, in connection with the provision of services under this Agreement, the Contractor intends to provide assistance in completing distributed voter registration forms or to receive and transmit completed registration forms from applicants who wish to have the forms transmitted to the City Board of Elections, the Contractor shall do so only by prior arrangement with the Department.
4. The provision of Paragraph B services by the Contractor may be subject to Department protocols, including protocols regarding confidentiality.
D. Required Statements. In accordance with Charter § 1057-a, the Contractor hereby agrees as follows:
1. The Contractor shall advise all persons seeking voter registration forms and information, in writing together with other written materials provided by the Contractor or by appropriate publicity, that the Contractor’s or government services are not conditioned on being registered to vote.
2. No statement shall be made and no action shall be taken by the Contractor or an employee of the Contractor to discourage an applicant from registering to vote or to encourage or discourage an applicant from enrolling in any particular political party.
3. The Contractor shall communicate to applicants that the completion of voter registration forms is voluntary.
4. The Contractor and the Contractor’s employees shall not:
a. seek to influence an applicant’s political preference or party designation;
b. display any political preference or party allegiance;
c. make any statement to an applicant or take any action the purpose or effect of which is to discourage the applicant from registering to vote; or
d. make any statement to an applicant or take any action the purpose or effect of which is to lead the applicant to believe that a decision to register or not to register has any bearing on the availability of services or benefits.
E. The Contractor, as defined above and in this Agreement, agrees that the covenants and representations in this Section are material conditions of this Agreement.
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F. The provisions of this Section do not apply where the services under this Agreement are supported by a federal or State grant of funds and the source of funds prohibits the use of federal or State funds for the purposes of this Section.
Section 13.07 Participation in an International Boycott
A. The Contractor agrees that neither the Contractor nor any substantially-owned affiliated company is participating or shall participate in an international boycott in violation of the provisions of the federal Export Administration Act of 1979, as amended, 50 U.S.C. Appendix. §§ 2401 et seq., or the regulations of the United States Department of Commerce promulgated thereunder.
B. Upon the final determination by the Commerce Department or any other agency of the United States as to, or conviction of, the Contractor or a substantially-owned affiliated company thereof, of participation in an international boycott in violation of the provisions of the Export Administration Act of 1979, as amended, or the regulations promulgated thereunder, the Comptroller may, at his or her option, render forfeit and void this Agreement.
C. The Contractor shall comply in all respects, with the provisions of Admin. Code § 6-114 and the rules issued by the Comptroller thereunder.
Section 13.08 MacBride Principles
A. In accordance with and to the extent required by Admin. Code § 6-115.1, the Contractor stipulates that the Contractor and any individual or legal entity in which the Contractor holds a ten percent (10%) or greater ownership interest and any individual or legal entity that holds a ten percent (10%) or greater ownership interest in the Contractor either (a) have no business operations in Northern Ireland, or (b) shall take lawful steps in good faith to conduct any business operations they have in Northern Ireland in accordance with the MacBride Principles, and shall permit independent monitoring of their compliance with such principles.
B. The Contractor agrees that the covenants and representations in Paragraph A above are material conditions to this Agreement.
C. This Section does not apply if the Contractor is a not-for-profit corporation.
Section 13.09 Access to Public Health Insurance Coverage Information
A. Participating Agencies. Pursuant to Charter § 1069, if this Agreement is with a participating City agency and the Contractor is one to whom this Section applies as provided in Paragraph B of this Section, the Contractor hereby agrees to fulfill the obligations in Paragraph C of this Section. The participating City agencies are: the Administration for Children’s Services; the City Clerk; the Commission on Human Rights; the Department for the Aging; the Department of Corrections; the Department of Homeless Services; the Department of Housing Preservation and Development; the Department of Juvenile Justice; the Department of Health
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and Mental Hygiene; the Department of Probation; the Department of Social Services/Human Resources Administration; the Taxi and Limousine Commission; the Department of Youth and Community Development; the Office to Combat Domestic Violence; and the Office of Immigrant Affairs.
B. Applicability to Certain Contractors. This Section shall be applicable to a Contractor operating pursuant to an Agreement which (i) is in excess of $250,000 and (ii) requires such Contractor to supply individuals with a written application for, or written renewal or recertification of services, or request for change of address form in the daily administration of its contractual obligation to such participating City agency. “Contractors” to whom this Section applies shall be deemed to include subcontractors if the subcontract requires the subcontractor to supply individuals with a written application for, or written renewal or recertification of services, or request for change of address form in the daily administration of the subcontractor’s contractual obligation.
C. Distribution of Public Health Insurance Pamphlet. In accordance with Charter § 1069, when the participating City agency supplies the Contractor with the public health insurance program options pamphlet published by the Department of Health and Mental Hygiene pursuant to Section 17-183 of the Admin. Code (hereinafter “pamphlet”), the Contractor hereby agrees as follows:
1. The Contractor will distribute the pamphlet to all persons requesting a written application for services, renewal or recertification of services or request for a change of address relating to the provision of services.
2. The Contractor will include a pamphlet with any Contractor communication sent through the United States mail for the purpose of supplying an individual with a written application for services, renewal or recertification of services or with a request for a change of address form relating to the provision of services.
3. The Contractor will provide an opportunity for an individual requesting a written application for services, renewal or recertification for services or change of address form relating to the provision of services via the Internet to request a pamphlet, and will provide such pamphlet by United States mail or an Internet address where such pamphlet may be viewed or downloaded, to any person who indicates via the Internet that they wish to be sent a pamphlet.
4. The Contractor will ensure that its employees do not make any statement to an applicant for services or client or take any action the purpose or effect of which is to lead the applicant or client to believe that a decision to request public health insurance or a pamphlet has any bearing on their eligibility to receive or the availability of services or benefits.
5. The Contractor will comply with: (i) any procedures established by the participating City agency to implement Charter §1069; (ii) any determination of the commissioner or head of the participating City agency (which is concurred in by the commissioner of the Department of Health and Mental Hygiene) to exclude a program, in whole or in part, from the requirements of Charter § 1069; and (iii) any determination of the commissioner or head of the participating City agency (which is concurred in by the
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commissioner of the Department of Health and Mental Hygiene) as to which Workforce Investment Act of 1998 offices providing workforce development services shall be required to fulfill the obligations under Charter § 1069.
D. Non-applicability to Certain Services. The provisions of this Section shall not apply to services that must be provided to prevent actual or potential danger to the life, health or safety of any individual or to the public.
Section 13.10 Distribution of Personal Identification Materials
A. Participating Agencies. Pursuant to City Executive Order No. 150 of 2011 (“E.O. 150”), if this Agreement is with a participating City agency and the Contractor has regular contact with the public in the daily administration of its business, the Contractor must comply with the requirements of this Section. The participating City agencies are: Administration for Children's Services, Department of Consumer Affairs, Department of Correction, Department of Health and Mental Hygiene, Department of Homeless Services, Department of Housing Preservation and Development, Human Resources Administration, Department of Parks and Recreation, Department of Probation, and Department of Youth and Community Development.
B. Policy. As expressed in E.O. 150, it is the policy of the City to provide information to individuals about how they can obtain the various forms of City, State, and Federal government-issued identification and, where appropriate, to assist them with the process for applying for such identification.
C. Distribution of Materials. If the Contractor has regular contact with the public in the daily administration of its business, the Contractor hereby agrees to provide and distribute materials and information related to whether and how to obtain various forms of City, State, and Federal government-issued identification as the Agency directs in accordance with the Agency’s plans developed pursuant to E.O. 150.
ARTICLE 14 - MISCELLANEOUS PROVISIONS
Section 14.01 Conditions Precedent
A. This Agreement shall be neither binding nor effective unless and until it is registered pursuant to Charter § 328.
B. The requirements of this Section shall be in addition to, and not in lieu of, any approval or authorization otherwise required for this Agreement to be effective and for the expenditure of City funds.
Section 14.02 Merger
This written Agreement contains all the terms and conditions agreed upon by the parties, and no other agreement, oral or otherwise, regarding the subject matter of this Agreement shall
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be deemed to exist or to bind either of the parties, or to vary any of the terms contained in this Agreement, other than a written change, amendment or modification duly executed by both parties pursuant to Article 9 of this Appendix A.
Section 14.03 Headings
Headings are inserted only as a matter of convenience and therefore are not a part of and do not affect the substance of this Agreement.
Section 14.04 Notice
A. The Contractor and the Department hereby designate the business addresses specified at the beginning of this Agreement as the places where all notices, directions, or communications from one such party to the other party shall be delivered, or to which they shall be mailed. Either party may change its notice address at any time by an instrument in writing executed and acknowledged by the party making such change and delivered to the other party in the manner as specified below.
B. Any notice, direction, or communication from either party to the other shall be in writing and shall be deemed to have been given when (i) delivered personally; (ii) sent by certified mail, return receipt requested; (iii) delivered by overnight or same day courier service in a properly addressed envelope with confirmation; or (iv) sent by fax or email and, unless receipt of the fax or e-mail is acknowledged by the recipient by fax or e-mail, deposited in a post office box regularly maintained by the United States Postal Service in a properly addressed, postage pre- paid envelope.
C. Nothing in this Section shall be deemed to serve as a waiver of any requirements for the service of notice or process in the institution of an action or proceeding as provided by Law, including the New York Civil Practice Law and Rules.
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AFFIRMATION
The undersigned proposer or bidder affirms and declares that said proposer or bidder is not in arrears to the City of New York upon debt, contract or taxes and is not a defaulter, as surety or otherwise, upon obligation to the City of New York, and has not been declared not responsible, or disqualified, by any agency of the City of New York, nor is there any proceeding pending relating to the responsibility or qualification of the proposer or bidder to receive public contract except ______.
Full name of Proposer or Bidder [below]
______
Address______
City______State______Zip Code______
CHECK ONE BOX AND INCLUDE APPROPRIATE NUMBER:
A - Individual or Sole Proprietorships
SOCIAL SECURITY NUMBER ______
B - Partnership, Joint Venture or other unincorporated organization
EMPLOYER IDENTIFICATION NUMBER ______
C - Corporation
EMPLOYER IDENTIFICATION NUMBER ______
By______Signature ______Title If a corporation place seal here
Must be signed by an officer or duly authorized representative.
* Under the Federal Privacy Act, the furnishing of Social Security numbers by bidders or proposers on City contracts is voluntary. Failure to provide a Social Security number will not result in a bidder’s/proposer’s disqualification. Social Security numbers will be used to identify bidders, proposers or vendors to ensure their compliance with laws, to assist the City in enforcement of laws, as well as to provide the City a means of identifying businesses seeking City contracts.
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CITY OF NEW YORK CERTIFICATION BY INSURANCE BROKER OR AGENT
The undersigned insurance broker or agent represents to the City of New York that the attached Certificate of Insurance is accurate in all material respects.
______[Name of broker or agent (typewritten)]
______[Address of broker or agent (typewritten)]
______[Email address of broker or agent (typewritten)]
______[Phone number/Fax number of broker or agent (typewritten)]
______[Signature of authorized official, broker, or agent]
______[Name and title of authorized official, broker, or agent (typewritten)]
State of ……………………….) ) ss.: County of …………………….)
Sworn to before me this _____ day of ______20___
______NOTARY PUBLIC FOR THE STATE OF ______
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