Exhibit 10.55
STATE OF NEW YORK
NEW YORK STATE DEPARTMENT OF LABOR
AMENDMENT NO. 5 TO
COMPTROLLER'S CONTRACT NO. C000857
WITH CLEARBLUE TECHNOLOGIES MANAGEMENT, INC.
THIS AGREEMENT is made this 25TH DAY OF MARCH, 2003 by and between the
People of the State of New York, acting by and through Xxxxx Xxxxxxx, the
Commissioner of Labor, whose office is at the 5th Floor of Building 12. Governor
W. Xxxxxxx Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000
(hereinafter referred to as "Labor" or "State") and ClearBlue Technologies
Management, Inc., a corporation authorized to do business in the State of New
York, with an office at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, X.X. 00000 (hereinafter
referred to as "ClearBlue" or "Contractor").
W I T N E S S E T H:
WHEREAS, the parties entered into Comptroller's Contract No. C000857
(hereinafter "Contract") approved by the State Comptroller on November 30, 2000,
for the provision of Software development and maintenance, Web Hosting and Help
Desk services (hereinafter "Software Services"); and
WHEREAS, the Contract provided for expenditures of up to Eighty Two
Million Dollars ($82,000,000.00) during the 5 year term of the Agreement
(hereinafter "Contract Total"), subject to the periodic extension of funding
from the United States Department of Labor; and
WHEREAS, the Contract made available Nineteen Million Dollars
($19,000,000.00) for expenditure through June 14, 2001 (hereinafter "Contract
Funding"); and
WHEREAS, Amendment No. 1 increased the Contract Funding $4,833,407 to
provide additional Software Services; and
WHEREAS, Amendment No. 2 increased the Contract Funding $25,540,000 to
provide additional Software Services; and
WHEREAS, Amendment No. 3 increased the Contract Funding $4,384,994 to
provide additional Software Services, increased the hourly billable rates in
accordance with the Consumer Price Index for Syracuse, and assigned the Contract
from Applied Theory Corporation, Inc. to ClearBlue Technologies Management,
Inc., and
WHEREAS, Amendment No. 4 increased the Contract Funding $18,952,142 to
provide additional Software Services; and
WHEREAS, the Department desires to amend the Contract Total and the
Contract Funding to allow for the Contractor to provide additional Services to
the Rhode Island Department of Labor and Training;
WHEREAS, the parties are ready, willing and able to enter into such an
amendment (hereinafter "Contract Amendment No. 5").
NOW THEREFORE, in consideration of the mutual undertakings and
covenants herein contained the parties agree as follows:
1. The Contract scope is hereby amended to permit the Department
to provide Software Services on behalf of the Rhode Island
Department of Labor and Training in accordance with the
Memorandum of Agreement attached hereto. The Memorandum of
Agreement describes Software Services to be provided, along
with associated costs, and becomes part of this Contract.
2. The Contract Total is increased by $1,006,278.00 from
$82,000,000.00 to $83,006,278.00. The Contract Funding is
increased by $1,006,278.00 from $72,710,543 to $73,716,821 for
Software Services in accordance with the attached Memorandum
of Agreement with the Rhode Island Department of Labor and
Training. The additional $1,006,278.00 will fund such services
through June 14, 2005.
Page 2
3. This Agreement shall be deemed executory only to the extent of
funding available to the State for the performance of the
terms hereof and no liability on account thereof shall be
incurred by the State of New York beyond monies available for
purpose thereof.
4. This Agreement shall be governed by the laws of the State of
New York.
5. Appendix A. standard clauses for New York State contracts,
attached hereto, is hereby expressly made a part of this
Agreement as fully as if set forth at length herein.
6. In all respects not inconsistent with this Contract Amendment
No. 5, the terms of the Contract as originally entered into
shall remain in full force and effect and binding upon the
parties hereto.
7. This Contract Amendment No. 5, the Contract and any prior
amendments, constitute the entire Agreement between the
parties hereto and no statement, promise, condition,
understanding, inducement or representation, oral or written,
expressed or implied, which is not contained herein shall be
binding or valid and this Agreement shall not he changed,
modified or altered in any manner except by an instrument in
writing executed by both parties hereto.
8. This Contract Amendment No. 5 shall not be deemed executed,
valid or binding unless and until approved in writing by the
Attorney General and the State Comptroller.
Page 3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CONTRACT NUMBER C000857
Agency Certification
"In addition to the acceptance of
this contract, I also certify
that original copies of this
signature page will be attached
to all other exact copies of this
contract."
CLEARBLUE TECHNOLOGIES THE PEOPLE OF THE STATE
MANAGEMENT, INC. NEW YORK
BY: /s/ Xxxxxxxx X. Xxxxxx BY: /s/ Xxxx X. Xxxxxxx
---------------------------- ----------------------------
NAME: Xxxxxxxx X. Xxxxxx NAME: Xxxx X. Xxxxxxx
TITLE: General Manager TITLE: Principal Accountant (ES)
FEDERAL I.D. NO.:00-0000000 04/02/03
APPROVED AS TO FORM APPROVED
XXXXX XXXXXXX XXXX X. XXXXXX
ATTORNEY GENERAL STATE COMPTROLLER
April _______ , 2003 April 29, 2003
CORPORATE ACKNOWLEDGEMENT
STATE OF NEW YORK }
} SS:
COUNTY OF Onondaga }
On the________day of March in the year 2002 before me personally came
Xxxxxxxx X. Xxxxxx to me known, who, being by me duly sworn did depose and say
the he resides in NY; that he is the General Manager of the ClearBlue
Technologies Management, Inc., the corporation described in and which executed
the above instrument; and that he signed his/her name thereto by authority of
the Board of Directors of said corporation.
/s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Notary Public
APPENDIX A
STANDARD CLAUSES FOR ALL
NEW YORK STATE CONTRACTS
The parties to the attached contract, license, lease, amendment or
other agreement of any kind (hereinafter, "the contract" or "this contract")
agree to be bound by the following clauses which are hereby made a part of the
contract (the word "Contractor" herein refers to any party other than the State,
whether a contractor, licenser, licensee, lessor, lessee or any other party):
1. EXECUTORY CLAUSE. In accordance with Section 41 of the State Finance Law, the
State shall have no liability under this contract to the Contractor or to anyone
else beyond funds appropriated and available for this contract.
2. NON-ASSIGNMENT CLAUSE. In accordance with Section 138 of the State Finance
Law, this contract may not be assigned by the Contractor or its right, title or
interest therein assigned, transferred conveyed, sublet or otherwise disposed of
without the previous consent, in writing, of the State and any attempts to
assign the contract without the State's written consent are null and void. The
Contractor may, however, assign its right to receive payment without the State's
prior written consent unless this contract concerns Certificates of
Participation pursuant to Article 5-A of the State Finance law.
3. COMPTROLLER'S APPROVAL. In accordance with Section 112 of the State Finance
Law (or, if this contract is with the State University or City University of New
York, Section 355 or Section 6218 of the Education Law), if this contract
exceeds $15,000 (or the minimum thresholds agreed to by the Office of the State
Comptroller for certain S.U.N.Y. and C.U.N.Y. contracts), or if this is an
amendment for any amount to a contract which, as so amended, exceeds said
statutory amount, or if, by this contract, the State agrees to give something
other than money when the value or reasonably estimated value of such
consideration exceeds $10,000, it shall not be valid, effective or binding upon
the State until it has been approved by the State Comptroller and filed in his
office.
4. WORKERS' COMPENSATION BENEFITS. In accordance with Section 142 of the State
Finance Law, this contract shall be void and of no force and effect unless the
Contractor shall provide and maintain coverage during the life of this contract
for the benefit of such employees as are required to be covered by the
provisions of the Workers' Compensation Law.
5. NON-DISCRIMINATION REQUIREMENTS. In accordance with Article 15 of the
Executive Law (also known as the Human Rights Law) and all other State and
Federal statutory and constitutional non-discrimination provisions, the
Contractor will not discriminate against any employee or applicant for
employment because of race, creed, color, sex, national origin, age, disability
or marital status. Furthermore, in accordance with Section 22O-e of the Labor
Law, if this is a contract for the construction, alteration or repair of any
public building or public work or for the manufacture, sale or distribution of
materials, equipment or supplies, and to the extent that this contract shall be
performed within the State of New York, Contractor agrees that neither it nor
its subcontractors shall, by reason of race, creed, color, disability, sex, or
national origin: (a) discriminate in hiring against any New York State citizen
who is qualified and available to perform the work: or (b) discriminate against
or intimidate any employee hired for the performance of work under this
contract. If this is a building service contract as defined in Section 230 of
the Labor Law, then, in accordance with Section 239 thereof, Contractor agrees
that neither it nor its subcontractors shall by reason of race, creed, color,
national origin, age, sex, or disability: (a) discriminate in hiring against any
New York State citizen who is qualified and available to perform the work: or
(b) discriminate against or intimidate any employee hired for the performance of
work under this contract. Contractor is subject to fines of $50,00 per person
per day for any violation of Section 220-e or Section 239 as well as possible
termination of this contract and forfeiture of all moneys due hereunder for a
second or subsequent violation.
6. WAGE AND HOURS PROVISIONS. If this is a public work contract covered by
Article 8 of the Labor Law or a building service contract covered by Article 9
thereof, neither Contractor's employees nor the employees of its subcontractors
may be required or permitted to work more than the number of hours or days
stated in said statutes, except as otherwise provided in the Labor law and as
set forth in prevailing wage and supplement schedules issued by the State Labor
Department, Furthermore, Contractor and its subcontractors must pay at least the
prevailing wage rate and pay or provide the prevailing supplements, including
the premium rates for overtime pay, as determined by the State Labor Department
in accordance with the Labor Law.
7. NON-COLLUSIVE BIDDING REQUIREMENT. In accordance with Section 139-d of the
State Finance Law, if this contract was awarded based upon the submission of
bids, Contractor warrants, under penalty of perjury, that its bid was arrived at
independently and without collusion aimed at restricting competition. Contractor
further warrants that, at the time Contractor submitted its bid, an authorized
and responsible person executed and delivered to the State a non-collusive
bidding certification on Contractor's behalf.
8. INTERNATIONAL BOYCOTT PROHIBITION. In accordance with Section 220-f of the
Labor Law and Section 139-h of the State Finance Law, if this contract exceeds
$5.000, the Contractor agrees, as a material condition of the contract, that
neither the Contractor nor any substantially owned or affiliated person, firm,
partnership or corporation has participated, is participating, or shall
participate in an international boycott in violation of the federal Export
Administration Act of 1979 (50 USC App. Sections 2401 et seq.) or regulations
thereunder. If such Contractor, or any of the aforesaid affiliates of
Contractor, is convicted or is otherwise found to have violated said laws or
regulations upon the final determination of the United States Commerce
Department or any other appropriate agency of the United States subsequent to
the contractors execution, such contract, amendment or modification thereto
shall be rendered forfeit and void. The Contractor shall so notify the State
Comptroller within five (5) business days of such conviction, determination or
disposition of appeal (2NYCRR 105.4).
9. SET-OFF RIGHTS. The State shall have all of its common law, equitable and
statutory rights of set-off. These rights shall include, but not be limited to,
the State's option to withhold for the purposes of set-off any moneys due to the
Contractor under this contract up to any amounts due and owing to the State with
regard to this contract, any other contract with any State department or agency,
including any contract for a term commencing prior to the term of this contract,
plus any amounts due and owing to the State for any other reason including,
without limitation, tax delinquencies, fee delinquencies or monetary penalties
relative thereto. The State shall exercise its set-off rights in accordance with
normal State practices including, in cases of set-off pursuant to an audit, the
finalization of such audit by the State agency, its representatives, or the
State Comptroller.
10. RECORDS. The Contractor shall establish and maintain complete and accurate
books, records, documents, accounts and other evidence directly pertinent to
performance under this contract (hereinafter, collectively, "the Records"). The
Records must be kept for the balance of the calendar year in
which they were made and for six (6) additional years thereafter. The State
Comptroller, the Attorney General and any other person or entity authorized to
conduct an examination, as well as the agency or agencies involved in this
contract, shall have access to the Records during normal business hours at an
office of the Contractor within the State of New York or, if no such office is
available, at a mutually agreeable and reasonable venue within the State, for
the term specified above for the purposes of inspection, auditing and copying.
The State shall take reasonable steps to protect from public disclosure any of
the Records which are exempt from disclosure under Section 87 of the Public
Officers Law (the "Statute") provided that: (i) the Contractor shall timely
inform an appropriate State official, in writing, that said records should not
be disclosed; and (ii) said records shall be sufficiently identified; and (iii)
designation of said records as exempt under the Statute is reasonable. Nothing
contained herein shall diminish, or in any way adversely affect, the State's
right to discovery in any pending or future litigation.
11. IDENTIFYING INFORMATION AND PRIVACY NOTIFICATION. (a) FEDERAL EMPLOYER
IDENTIFICATION NUMBER and/or FEDERAL SOCIAL SECURITY NUMBER. All invoices or New
York State standard vouchers submitted for payment for the sale of goods or
services or the lease of real or personal property to a New York State agency
must include the payee's identification number, i.e., the seller's or lessor's
identification number. The number is either the payee's Federal employer
identification number or Federal social security number or both such numbers
when the payee has both such numbers. Failure to include this number or numbers
may delay payment. Where the payee does not have such number or numbers, the
payee, on its invoice or New York State standard voucher, must give the reason
or reasons why the payee does not have such number or numbers.
(B) PRIVACY NOTIFICATION. (1) The authority to request the above personal
information from a seller of goods or services or a lessor of real or personal
property, and the authority to maintain such information, is found in Section 5
of the State Tax Law. Disclosure of this information by the seller or lessor to
the State to mandatory. The principal purpose for which the information is
collected is to enable the State to identify individuals, businesses and others
who have been delinquent in filing tax returns or may have understated their tax
liabilities and to generally identify persons affected by the taxes administered
by the Commissioner of Taxation and Finance. The information will be used for
tax administration purpose and for any other purpose authorized by law.
(2) The personal information is requested by the purchasing unit of the agency
contracting to purchase the goods or services or lease "the real or personal
property covered by this contract or lease. The information is maintained in New
York State's Central Accounting System by the Director of Accounting Operations,
Xxxxxx xx xxx Xxxxx Xxxxxxxxxxx, XXXXX, Xxxxxx, Xxx Xxxx 00000.
12. EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITIES AND WOMEN. In accordance with
Section 312 of the Executive law, if this contract is: (i) a written agreement
or purchase order instrument, providing for a total expenditure in excess of
$25,000.00, whereby a contracting agency is committed to expend or does expend
funds in return for labor, services, supplies, equipment, materials or any
combination of the foregoing, to be performed for, or rendered or furnished to
the contracting agency, or (ii) a written agreement in excess of $ 100,000,00
whereby a contracting agency is committed to expend or does expend funds for the
acquisition, construction, demolition, replacement, major repair or renovation
of real property and improvements thereon; or (iii) a written agreement in
excess of $100,000,00 whereby the owner of a State assisted housing project is
committed to expend or does expend funds for the acquisition, construction,
demolition, replacement, major repair or renovation of real property and
improvements thereon for such project, then: (a)The Contractor will not
discriminate against employees or applicants for employment because of race,
creed, color, national origin, sex, age, disability or marital status, and will
undertake or continue existing programs of affirmative action to ensure that
minority group members and women are afforded equal employment opportunities
without discrimination. Affirmative action shall mean recruitment, employment,
job assignment, promotion, upgradings, demotion, transfer, layoff, or
termination and rates of pay or other forms of compensation;
(b) at the request of the contracting agency, the Contractor shall request each
employment agency, labor union, or authorized representative of workers with
which it has a collective bargaining or other agreement or understanding, to
furnish a written statement that such employment agency, labor union or
representative will not discriminate on the basis of race, creed, color,
national origin, sex, age, disability or marital status and that such union or
representative will affirmatively cooperate in the implementation of the
contractor's obligations herein; and
(c) the Contractor shall state, in all solicitations or advertisements for
employees, that, in the performance of the State contact all qualified
applicants will be afforded equal employment opportunities without
discrimination because of race, creed, color, national origin, sex, age,
disability or marital status.
Contractor will include the provisions of "a, "b", and "c" above, in every
subcontract over $25,000.00 for the construction, demolition, replacement, major
repair, renovation, planning or design of real property and improvements thereon
(the Work) except where the Work is for the beneficial use of the Contractor.
Section 312 docs not apply to: (i) work, goods or services unrelated to this
contract; or (ii) employment outside New York State; or (iii) banking services,
insurance policies or the sale of securities. The State shall consider
compliance by a contractor or subcontractor with the requirements of any federal
law concerning equal employment opportunity which effectuates the purpose of
this section. The contracting agency shall determine whether the imposition of
the requirements of the provisions hereof duplicate or conflict with any such
federal law and if such duplication or conflict exists, the contracting agency
shall waive the applicability of Section 312 to the extent of such duplication
or conflict. Contractor will comply with all duly promulgated and lawful rules
and regulations of the Division of Minority and Women's Business Development
pertaining hereto.
13. CONFLICTING TERMS. In the event of a conflict between the terms of the
contract (including any and all attachments thereto and amendments thereof) and
the terms of this Appendix A, the terms of this Appendix A shall control.
14. GOVERNING LAW. This contract shall be governed by the laws of the State of
New York except where the Federal supremacy clause requires otherwise.
15. LATE PAYMENT. Timeliness of payment and any interest to be paid to
Contractor for late payment shall be governed by Article XI-A of the State
Finance Law to the extent required by law.
16. NO ARBITRATION. Disputes involving this contract, including the breach or
alleged breach thereof, may not be submitted to binding arbitration (except
where statutorily authorized), but must, instead, be heard in a court of
competent jurisdiction of the State of New York.
17. SERVICE OF PROCESS. In addition to the methods of service allowed by the
State Civil Practice Law & Rules ("CPLR"). Contractor hereby consents to
service of process
upon it by registered or certified mail, return receipt requested. Service
hereunder shall be complete upon Contractor's actual receipt of process or upon
the State's receipt of the return thereof by the United States Postal Service as
refused or undeliverable. Contractor must promptly notify the State, in writing,
of each and every change of address to which service of process can be made.
Service by the State to the last known address shall be sufficient. Contractor
will have thirty (30) calendar days after service hereunder is complete in which
to respond.
18. PROHIBITION ON PURCHASE OF TROPICAL HARDWOODS. The Contractor certifies and
warrants that all wood products to be used under this contract award will be in
accordance with, but not limited to, the specifications and provisions of State
Finance Law Section 165. (Use of Tropical Hardwoods) which prohibits purchase
and use of tropical hardwoods, unless specifically exempted, by the State or any
governmental agency or political subdivision or public benefit corporation.
Qualification for an exemption under this law will be the responsibility of the
contractor to establish to meet with the approval of the State.
In addition, when any portion of this contract involving the use of xxxxx,
whether supply or installation, is to be performed by any subcontractor, the
prime Contractor will indicate and certify in the submitted bid proposal that
the subcontractor has been informed and is in compliance with specifications and
provisions regarding use of tropical hardwoods as detailed in Section 165 State
Finance Law. Any such use must meet with the approval of the State, otherwise,
the bid may not be considered responsive. Under bidder certifications, proof of
qualification for exemption will be the responsibility of the Contractor to meet
with the approval of the State.
19. XXXXXXXX FAIR EMPLOYMENT PRINCIPLES. In accordance with the XxxXxxxx Fair
Employment Principles (Chapter 807 of the Laws of 1992), the Contractor hereby
stipulates that the Contractor either (a) has no business operations in Northern
Ireland, or (b) shall take lawful steps in good faith to conduct any business
operations in Northern Ireland in accordance with the XxxXxxxx Fair Employment
Principles (as described in Section 165 of the New York Stale Finance Law), and
shall permit independent monitoring of compliance with such principles.
20. OMNIBUS PROCUREMENT ACT OF 1992. It is the policy of New York State to
maximize opportunities for the participation of New York State business
enterprises, including minority and women-owned business enterprises as bidders,
subcontractors and suppliers on its procurement contracts.
Information on the availability of New York State subcontractors and suppliers
is available from:
Department of Economic Development
Division for Small Business
00 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Tel. 000-000-0000
A directory of certified minority and women-owned business enterprises is
available from:
Department of Economic Development
Minority and Women's Business Development Division
00 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
xxxx://xxx.xxxxxx.xxxxx.xx.xx
The Omnibus Procurement Act of 1992 requires that by signing this bid proposal
or contract, as applicable. Contractors certify that whenever the total bid
amount is greater than $1 million;
(a) The Contractor has made reasonable efforts to encourage the participation of
New York State Business Enterprises as suppliers and subcontractors, including
certified minority and women-owned business enterprises, on this project, and
has retained the documentation of these efforts to be provided upon request to
the State:
(b) The Contractor has complied with the Federal Equal Opportunity Act of 1972
(P. L. 92-261), as amended,
(c) The Contractor agrees to make reasonable efforts to provide notification to
New York State residents of employment opportunities on this project through
listing any such positions with the Job Service Division of the New York State
Department of Labor, or providing such notification in such manner as is
consistent with existing collective bargaining contracts or agreements. The
Contractor agrees to document these efforts and to provide said documentation to
the State upon request; and
(d) The Contractor acknowledges notice that the State may seek to obtain offset
credits from foreign countries as a result of this contract and agrees to
cooperate with the State in these efforts.
21. RECIPROCITY AND SANCTIONS PROVISIONS. Bidders are hereby notified that if
their principal place of business is located in a country, nation, province,
state or political subdivision that penalizes New York State vendors, and if the
goods or services they offer will be substantially produced or performed outside
New York State, the Omnibus Procurement Xxx 0000 and 2000 amendments (Chapter
684 and Chapter 383 respectively) require that they be denied contracts which
they would otherwise obtain. Contact the Department of Economic Development,
Division for Small Business, 00 Xxxxx Xxxxx Xxxxxx; Xxxxxx Xxx Xxxx 00000, for a
current list of jurisdictions subject to this provision.
Revised November 2000
