EX-10.14
Extension and Eighth Amendment of Contract
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
Extension and Eighth Amendment Agreement made and entered into on the date
expressed at the end of this document by and between the BOARD OF EDUCATION OF
THE CITY OF NEW YORK ("BOE"), 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000,
and the Contractor whose signature appears at the end of this document (the
Contractor")
W I T N E S S E T H:
In consideration of the following stipulations, terms and conditions, the
parties to this Extension and Eighth Amendment Agreement agree as follows:
W H E R E A S in 1979 the BOE publicly solicited competitive bids for the
transportation of special education pupils under Xxxxxxxx Xxxxxx Xx. 0000 xxx
Xxxxxxxx Xxxxxx Xx. 0000; and,
W H E R E A S at divers times thereafter from 1982 through 1964, the BOE
publicly solicited competitive bids for similar services under Contract Serial
Nos. G8805, G8891, G8893, G9301 and G9325, which contracts have incorporated, as
of their dates, provisions which are counterparts of the provisions of contracts
under Serial Nos. 0070 and 8108 as they then read; and,
W H E R E A S the Contractor submitted a bid(s) under one or more of the
aforementioned contract serial numbers and was duly awarded a contract(s)
including certain Employee Protection Provisions for the transportation of
special education pupils; and,
W H E R E A S during the period of September 10, 1979 through December 21,
1979, the Contractor did not provide escort services for special education
pupils; but, under an emergency contract entered into by and with the BOE, such
escort services have been supplied since that time; and,
W H E R E A S the New York State Legislature enacted Chapter 737 of the
Laws of 1979 ("Chapter 737") and the parties have desired to amend the Contract
to implement Chapter 737 and be subject to its terms; and,
W H E R E A S the BOE elected fairly and reasonably on the basis of the
best interests of the school district not to extend the terms of all contracts
under Serial Nos. G8893 and G9301; and,
W H E R E A S the original terms of all contracts under Serial Nos. 0070,
8108, G8805, G8891 and G9301 would have expired on June 30, 1982 unless
extended, and G9325 would have expired on June 30, 1984 unless extended and
Xxxxxxx 000, Xxxxxxxxx 00 (x) of the State Education Law authorizes extensions
and provides a method for appropriate payment increases; and,
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
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W H E R E A S in 1982 the BOE and the Contractors agreed to amend and
extend all Serial Nos. 0070, 8108, G8805, G8891, G9301 and G9325 contracts
through June 30, 1984; and,
W H E R E A S in 1984 the BOE and the Contractors agreed to amend and
extend further all Serial Nos. 0070, 8108, G8805, G8891, G9301 and G9325
contracts through June 30, 1987; and,
W H E R E A S in 1987 the BOE and the Contractors agreed to amend and
extend further all Serial Nos. 0070, 8108, G8805, G8891, G9301 and G9325
contracts through June 30, 1990; and,
W H E R E A S in 1990 the BOE and the Contractors agreed to amend and
extend further all Serial Nos. 0070, 8108, G8805, G8891, G9301 and G9325
contracts through June 30, 1993; and,
W H E R E A S in 1993 the BOE and the Contractors agreed to amend and
extend further all Serial Nos. 0070, 8108, G8805, G8891, G9301 and G9325
contracts through June 30, 1996; and,
W H E R E A S in 1994 the BOE publicly solicited competitive bids for the
transportation of special education pupils under Contract Serial Nos. 7165, 7200
and 7291 whose original terms shall expire on June 30, 1997, unless extended;
and,
W H E R E A S in 1995 the City of New York, the BOE, the Contractors, and
delegates of the Amalgamated Transit Union, Local Division 1181-1061, the
Transit Workers Union, Local 100, and various other labor organizations that
represent school bus workers entered into negotiations to deal with the
increasing costs of school bus service in the face of markedly diminished City
and school district financial resources; and, the City of New York, the BOE, the
Contractors, and the labor organizations reached an accord that averted the
possibility of school bus service interruptions and that produced significant
prospective cost savings for the City and the BOE; and,
W H E R E A S the said accord reached among the City of New York, the BOE,
the Contractors, and delegates of the Amalgamated Transit Union, Local Division
1181-1061, the Transit Workers Union, Local 100, and various other labor
organizations calls for modification to the terms, conditions and specifications
of existing extension and amendment agreements under Serial Nos. 0070, 8108,
G8805, G8891, G9301 and G9325 and all contracts under Serial Nos. 7165, 7200 and
7291 to take effect during the current term periods of such extension and
amendment agreements and contracts starting as of July 1, 1995 or September 1,
1995,
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
depending upon the particular contract or agreement serial number; and,
W H E R E A S the BOE now determines that all contracts under Serial Nos.
0070, 8108, G8805, G8891 and G9325 should be still further amended and extended
through June 30, 2000, and that all contracts under 7165, 7200, and 7291 should
be initially amended and extended through June 30, 2000, and the Contract does
hereby so agree, acknowledge and stipulate; and,
W H E R E A S in 1991, the BOE Office of Auditor General ("OAG") commenced
a currently continuing review and audit of annual rate increases paid to
contractors during the school years 1986-87 through 1994-95 pursuant to
provisions in previous and existing Extension and Amendment Agreements as
allowed by State Education Law ss.305, Sub-division 14(a); and this audit has
resulted in the release of preliminary findings which proposed various
adjustments to the daily rates per vehicle of many Contractors as well as the
recovery of alleged overpayments from some of the Contracts; and,
W H E R E A S some of the contractors have instigated litigation in the
Supreme Court of the State of New York in New York County under the Index No.
20841/92 (IAS Part 17, Justice Xxxxxxx) to prevent the BOE from acting upon the
OAG's findings to adjust daily vehicles rates prospectively and to recover
alleged overpayments, which litigation is still pending either judicial
resolution or settlement, and which the Contractor does hereby agree, confess,
acknowledge and stipulate that he/she/it has been apprised fully of such
litigation; and,
W H E R E A S the parties mutually desire to make this extension agreement
and amendment to the aforesaid contracts as heretofore amended and extended
("the Contract");
N 0 W T H E R E F 0 R E, the parties whose names and signatures appear at
the end of this document do hereby further agree and covenant as follows:
(A) (1) TERM OF EXTENSION AGREEMENT. All references to the termination of the
Contract, by whatever terminology, shall be deemed hereafter to read "June 30,
2000, unless further extended;" provided however, that if, prior to 5:00 P.M. on
December 19, 1995, the Contractor shall have exercised an option to terminate
the Contract as of June 30, 1996, the Contract shall so terminate; and, provided
further, that if the Contractor has not, in December 1995, exercised the option
to terminate, then if prior to 5:00 PM on December 19, 1996, the Contractor
shall have exercised an option to
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
terminate the Contract as of June 30, 1997, the Contract shall so terminate; and
provided further that if the Contractor shall not have exercised an option to
terminate, then if prior to 5:00 PM on December 19, 1997, the Contractor shall
have exercised an option to terminate the Contract as of June 30, 1998, the
Contractor shall so terminate; and provided further that if the Contractor shall
not have exercised an option to terminate, then if prior to 5:00 PM on December
19, 1998, the Contractor shall have exercised an option to terminate the
Contract as of June 30, 1999, the Contractor shall so terminate; and, provided
still further, that the Contractor's aforementioned December option to terminate
effective June 30th next succeeding may be exercised by a Contractor only if the
Contractor demonstrates that its insurance premiums including any Automobile
Insurance Plan (AIP) surcharges and excess pass-along costs for the minimum
liability coverage required by the Contract will have increased as of January 1,
1995 more than six-percent (6%) over the January 1, 1994 premiums, and as of
January 1, 1996 more than seven percent (7%) over the January 1, 1995 premiums
and as of January 1, 1997, more than (7%) over the January 1, 1996, premiums and
as of January 1, 1998, more than (7%) over the January 1, 1997 premiums.
(2) To be effective the Contractor's Notice of Exercise of the Option to
Terminate must be received at the Office of the Director of the Office of Pupil
Transportation, in writing signed by the Contractor, by the date and time
specified.
(3) If the Contractor fails to comply strictly with the above requirements
the Contract shall continue without interruption.
(B) ARTICLE V - A entitled, "PAYMENT DURING PERIOD OF EXTENSION," is hereby
amended to read as follows for the period of this Extension and Amendment
Agreement:
V - A. PAYMENT DURING PERIOD OF EXTENSION
(1) Notwithstanding the provisions of Article V, during this Extension
Period the daily rate per vehicle will be deemed to be augmented each year
according to the following formulae subject to the Director's approval of
all or any portion(s) of the Contractor's claims in the below described
annual Cost Justification Financial Statements:
(a) (1) For Contracts under Serial Nos. 0070, 8108, G8805, G8891 and
G9325, during the Fourteenth Extension Year of July 1, 1995
through June 30, 1996, each Contractor's daily rates per vehicle
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
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shall be equal to ninety-eight-and-one-half per cent (98.5%) of
the daily rates per vehicle provided in extension and amendment
agreements of the Contracts which are in effect for the Extension
Year of July 1, 1994 through June 30, 1995.
(2) For Contracts under Serial Nos. 7165, 7200, and 7291, during
the Second Contract Year of July 1, 1995 through June 30, 1996,
each Contractor's daily rates per vehicle and per escort shall be
equal to ninety-eight and one-half percent (98.5%) of the daily
rates per vehicle and per escort as originally quoted by the
Contractor in 1994.
(b) (1) For Contracts under Serial Nos. 0070, 8108, G8805, G8891 and
G9325, during the Fifteenth Extension Year of July 1, 1996
through June 30, 1997, each Contractor's daily rates per vehicle
shall be deemed to be augmented by an amount not to exceed
whichever of the following represents the least amount of actual
increase: (i) the same percentage by which the Consumer Price
Index as of May 1996 shall have increased over the Consumer Price
Index as of May 1995; (ii) two-and-two-tenths per cent (2.2%)
over the base daily rates per vehicle paid during the Extension
Year of July 1, 1995 through June 30, 1996; or, (iii) the amount
in dollars expressed as a percentage by which each Contractor's
actual costs during the Extension Year of July 1, 1995 through
June 30, 1996 shall have increased over each Contractor's actual
costs during the Extension Years of July 1, 1993 through June 30,
1994.
(2) For Contracts under Serial Nos. 7165, 7200, and 7291, during
the Third Contract Year of July 1, 1996 through June 30, 1997,
each Contractor's daily rates per vehicle and per escort shall
resume equality to one hundred percent (100%) of the daily rates
per vehicle and per escort as originally quoted by each such
Contractor in 1994.
(c) (1) For Contracts under Serial Nos. 0070, 8108, G8805, G8891 and
G9325, during the Sixteenth Extension Year of July 1, 1997
through June 30, 1998, each Contractor's daily rates per vehicle
shall be deemed to be augmented by an amount not to exceed
whichever of the following represents the least amount of actual
increase: (i) the same percentage
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
by which the Consumer Price Index as of May 1997 shall have
increased over the Consumer Price Index as of May 1996; (ii)
two-and-six-tenths percent (2.6%) over the base daily rates per
vehicle paid during the Extension Year of July 1, 1996 through
June 30, 1997; or (iii) the amount in dollars expressed as a
percentage by which each Contractor's actual costs during the
Extension Year of July 1, 1996 through June 30, 1997 shall have
increased over each Contractor's actual costs during the
Extension Year of July 1, 1995 through June 30, 1996, plus the
percentage of each Contractor's actual cost increases from the
Extension Year of July 1, 1995 through June 30, 1996 over the
Extension Year of July 1, 1993 through June 30, 1994 to the
extent that such percentage exceeded two-and-two-tenths percent
(2.2%) and was consequently disallowed for the Extension Year of
July 1, 1996 through June 30, 1997. (1)
(2) For Contracts under Serial Nos. 7165, 7200, and 7291, during
the First Extension Year of July 1, 1997 through June 30, 1998,
each Contractor's daily rates per vehicle and per escort shall be
deemed to be augmented by an amount not to exceed whichever of
the following represents the least amount of actual increase: (i)
the same percentage by which the Consumer Price Index as of May
1997 shall have increased over the Consumer Price Index as of May
1996; (ii) two-and-six-tenths percent (2.6%) over the base daily
rates per vehicle paid during the Contract Year of July 1, 1996
through June 30, 1997; or (iii) the amount in dollars expressed
as a percentage by which each Contractor's actual costs during
the Contract Year of July 1, 1996 through June 30, 1997 shall
have increased over each Contractor's actual costs during the
Contract Year of July 1, 1995 through June 30, 1996.
(d) (1) For Contracts under Serial Nos. 0070, 8108, G8805, G8891 and
G9325, during the Seventeenth Extension Year of July 1, 1998
through June 30,
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(1) This "cost carry-forward" is allowed only for that percentage of the
Contractor's cost increases from the Fourteenth over the Twelfth Extension Years
that exceeded two-and-two-tenths percent (2.2%) and it is allowed due to such a
low fixed rate hike cap.
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
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1999, each Contractor's daily rates per vehicle shall be deemed
to be augmented by an amount not to exceed whichever of the
following represents the lesser amount of actual increase: (i)
the same percentage by which the Consumer Price Index as of May
1998 shall have increased over the Consumer Price Index as of May
1997; or, (ii) the amount in dollars expressed as a percentage by
which each Contractor's actual costs during the Extension Year of
July 1, 1997 through June 30, 1998 shall have increased over each
Contractor's actual costs during the Extension Year of July 1,
1996 through June 30, 1997, plus each of the percentages of each
Contractor's actual cost increases from (a) the Fifteenth
Extension Year (July 1, 1996 through June 30, 1997) over the
Fourteenth Extension Year (July 1, 1995 through June 30, 1996) to
the extent that such exceeds two-and-six tenths percent (2.6%)(2)
and (b) the Fourteenth Extension Year (July 1, 1995 through June
30, 1996) over the Twelfth Extension Year (July 1, 1993 through
June 30, 1994) to the extent that such exceeds two-and-two-tenths
percent (2.2%)(3).
(2) For Contracts under Serial Nos. 7165, 7200 and 7291, during
the Second Extension Year from July 1, 1998 through June 30,
1999, each Contractor's daily rates per vehicle and per escort
shall be deemed to be augmented by an amount not to exceed
whichever of the following represents the lesser amount of actual
increase: (i) the same percentage by which the Consumer Price
Index as of May 1998 shall have increased over the Consumer Price
Index as of May 1997; or, (ii) the amount in dollars expressed as
a percentage by which each
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(2) This "cost carry-forward" is allowed only for that percentage of the
Contractor's cost increases from the Fifteenth over the Fourteenth Extension
Years that exceed two-and-six-tenths percent (2.6%), and it is allowed due to
such a low fixed rate hike cap.
(3) As in Note 1, the second "cost carry-forward" is allowed due to such a
low fixed rate hike cap but only to the extent that the Contractor's cost
increases beyond two-and-two tenths percent (2.2%) shall not as yet have been
absorbed by the rate augmentation for the Sixteenth Extension Year.
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
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Contractor's actual costs during the Extension Year from July 1,
1997 through June 30, 1998 shall have increased over each
Contractor's actual costs during the Contract Year from July 1,
1996 through June 30, 1997.
(e) (1) For Contracts under Serial Nos. 0070, 8108, G8805, G8891 and
G9325, during the Eighteenth Extension Year of July 1, 1999
through June 30, 2000, each Contractor's daily rates per vehicle
shall be deemed to be augmented by an amount not to exceed
whichever of the following represents the lesser amount of actual
increase: (i) the same percentage by which the Consumer Price
Index as of May 1999 shall have increased over the Consumer Price
Index as of May 1998; or, (ii) the amount in dollars expressed as
a percentage by which each Contractor's actual costs during the
Extension Year from July 1, 1998 through June 30, 1999 shall have
increased over each Contractor's actual costs during the
Extension Year of July 1, 1997 through June 30, 1998.
(2) For Contracts under Serial Nos. 7165, 7200, and 7291, during
the Third Extension Year from July 1, 1999 through June 30, 2000,
each Contractor's daily rates per vehicle and per escort shall be
deemed to be augmented by an amount not to exceed whichever of
the following represents the lesser amount of actual increase:
(i) the same percentage by which the Consumer Price Index as of
May 1999 shall have increased over the Consumer Price Index as of
May 1998; or, (ii) the amount in dollars expressed as a
percentage by which each Contractor's actual costs during the
Extension Year from July 1, 1998 through June 30, 1999 shall have
increased over each Contractor's actual costs during the
Extension Year from July 1, 1997 through June 30, 1998.
(2) Notwithstanding the foregoing payment increase provisions, where there
is a decrease in the regional consumer price index for the New York, New
York-Northeastern, New Jersey area as based upon the index for all urban
consumers (CPI-U) during the preceding twelve month period, the amount to
be paid to the Contractor in the succeeding extension year
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
will reflect that decrease in a manner satisfactory to the New York State
Commissioner of Education.
(3) Definitions. The definitions below control the meanings of the
described terms wherever they appear in this Contract. These definitions
add to and supplement any definitions or instructions expressed in the
original Contract and, as such, do not supersede, revoke, replace, revise
or limit any similar or analogous provisions in the original Contract.
(a) For Contracts under Serial Nos. 0070, 8108, G8805, G8891 and
G9325, the following Extension Year definitions shall apply:
(i) "Fourteenth Extension Year" means July 1, 1995 through June
30, 1996.
(ii) "Fifteenth Extension Year" means July 1, 1996 through June
30, 1997.
(iii) "Sixteenth Extension Year" means July 1, 1997 through June
30, 1998.
(iv) "Seventeenth Extension Year" means July 1, 1998 through June
30, 1999.
(v) "Eighteenth Extension Year" means July 1, 1999 through June
30, 2000.
(b) For Contracts under Serial Nos. 7165, 7200, and 7291, the
following Contract Year and Extension Year definitions shall apply:
(i) The term "Contract Year" means each annual period during the
original term of the Contract from July lst of a given year
through June 30th of the next year, i.e., "Second Contract Year"
means July 1, 1995 through June 30, 1996 and "Third Contract
Year" means July 1, 1996 through June 30, 1997.
(ii) "First Extension Year" means July 1, 1997 through June 30,
1998.
(iii) "Second Extension Year" means July 1, 1998 through June 30,
1999.
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
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(iv) "Third Extension Year" means July 1, 1999 through June 30,
2000.
(c) The term "Consumer Price Index," as of a given date, is defined as
that statistic of the United States Department of Labor or its
successor agency which the New York State Education Department deems
as the "regional consumer price index for the New York, New
York-Northeastern, New Jersey area, based upon the index for all urban
consumers (CPI-U)," according to Section 305, Paragraph 14(a) of the
State Education Law or as the same may be updated, revised or
otherwise changed during the life of this Extension and Eighth
Amendment Agreement.
(d) The term "contractor's average cost per vehicle per day" for a
given extension year is defined as a Contractor's "total net allowable
costs" for that extension year divided by the total number of "vehicle
days". The term "total net allowable costs" is limited to those
expenses determined by the BOE to be related directly to
transportation services provided to the BOE pursuant to this Contract.
The term "vehicle days" is defined as the total number of "authorized
vehicles" the Contractor actually operates multiplied by the number of
school days, which number is hereby fixed at 183 school days per
extension year (220 school days per extension year for 12 month
contracts) for the term of this Extension and Amendment Agreement.(4)
The term "authorized vehicles" is defined as the total number of
contract and additional vehicles, but
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(4) The numbers 183 (ten month contracts) and 220 (twelve month contracts)
represent average numbers of school days per extension year for the three
extension years preceding the instant Extension and Amendment Agreement, i.e.,
1992-93, 1993-94 and 1994-95 Extension Years. These averages shall be reviewed
every three (3) years during this Extension and Amendment Agreement and such
further extension and amendment agreements thereafter, if any. Whereupon a
triennial review finds that one or both average numbers of school days per
extension year have changed as based upon the fluctuation of actual school days
per annum, the affected fixed number(s) of school days shall be revised up or
down accordingly for the next extension year(s), but only if the change in the
affected average number(s) at least equals two (2) school days. In each
subsequent triennial review, if any, the effects of changes in the numbers of
school days from the preceding triennial review(s) shall be viewed cumulatively.
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
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excluding spare vehicles, that the Contractor has been granted
expressly by the Director. If the Director grants the Contractor
additional vehicles after December 15 of a given extension year, such
additional vehicles shall not be counted among the "authorized
vehicles" until the start of the succeeding extension year, if indeed
the Contractor continues to furnish such additional vehicles during
the succeeding extension year.(5)
(e) The term "Cost Justification Financial Statement" is defined as a
written accountant's review report prepared by a Certified Public
Accountant (CPA) or Public Accountant (PA) licensed by the State of
New York, except as otherwise noted herein. This review report shall
state that a review was performed in accordance with AICPA standards
and that the information in the financial statements is the
representation of management, and it describes the nature of the
review as distinct from an audit. The report shall give the limited
assurance that, based on the review, the CPA/PA is not aware of any
material modifications that should be made to the financial statement
in order for it to be in conformity with generally accepted accounting
principles. In addition, the Certified Public Accountant or Public
Accountant preparing a report or review must state that he or she has
studied the cost justification manual supplied by
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(5) This exclusion of additional vehicles granted after each December 15th
shall not apply to any vehicles that the Contractor obtains by way of assignment
or other transfer of contract, if such is approved by the BOE. Except for the
one-and-one half percent (1.5%) daily rate reduction for the 1995-96 Extension
Year, the annual rate augmentation, if any, for each additional vehicle granted
after December 15th of a given extension year shall not become effective until
the succeeding extension year, whereupon any such rate augmentation shall
commence (without retroactivity) cumulatively with the following extension
year's rate increase, if any. For cost justification purposes, the Contractor
shall not add or combine any costs associated with additional vehicles granted
after each December 15th into the Contractor's other operating costs for that
extension year but shall begin to add or combine such costs (without
retroactivity) into other operating costs only at the outset of the succeeding
extension year, i.e., each such additional vehicle shall be treated for cost
justification purposes as if it had been initially granted to the Contractor
effective July 1st of the given following extension year.
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
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the Board and has applied the standards contained in the Board's
manual to the development of the Cost Justification Financial
Statement. Contractors who have not had a CPA audited report done for
any purpose within two (2) years prior to the commencement date of
this Extension Agreement, shall be required to submit a certified
audited statement by a CPA for its first cost justification financial
statement under this Extension Agreement. In addition, the accountant
must have no interest in this Contract or the Contractor and must so
certify in writing. The financial statement will utilize a form
prescribed by the Director as approved by the State Education
Department.
(4) Cost Justification Financial Statements. Section 305 of the State
Education Law requires the Contractor to substantiate any cost increases
which he/she claims to justify annual payment increases during the term of
this Extension and Eighth Amendment Agreement. In consultation with the BOE
Office of Auditor General, the Director of the Office of Pupil
Transportation (OPT) shall determine whether to approve all or any
portion(s) of the claims in each of the Contractors' annual Cost
Justification Financial Statements as described immediately below:
(a) To substantiate any payment increases received under this Article
V - A during the Extension Year of July 1, 1996 through June 30, 1997,
the Contractor must submit by September 30,. 1996 a cost justification
financial statement by an independent Certified Public Accountant or
Public Accountant which details total costs incurred by the Contractor
for all of its operations and, separately, for its operations under
this Contract for the Extension Years 1995-96 and for 1993-1994.
(b) To substantiate any payment increases received under this Article
V - A during the Extension Year of July 1, 1997 through June 30, 1998,
the Contractor must submit by September 30, 1997 (i) a cost
justification financial statement by an independent Certified Public
Accountant or Public Accountant which details the total costs incurred
by the Contractor for all of its operations and, separately, for its
operations under this Contract for the Extension Years 1996-1997 and
1995-1996, and (ii) an additional cost justification financial
statement by an independent Certified Public Accountant or Public
Accountant which details the total costs incurred by the
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
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Contractor for all of its operations and, separately, for its
operations under this Contract for Extension Years 1995-96 and
1993-1994 (to account for a cost carry-forward, if any)
(c) To substantiate any payment increases received under this Article
V - A during the Extension Year of July 1, 1998 through June 30, 1999,
the Contractor must submit by September 30, 1998, (i) a cost
justification financial statement by an independent Certified Public
Accountant or Public Accountant which details the total costs incurred
by the Contractor for all of its operations and, separately, for its
operations under this Contract, for the Extension Years 1997-1998 and
1996-1997, and (ii) an additional cost justification financial
statement by an independent Certified Public Accountant or Public
Accountant which details the total costs incurred by the Contractor
for all of its operations and, separately, for its operations under
this Contract for Extension Years 1996-97, 1995-1996 and 1993-1994,
(to account for a cost carry-forward, if any).
(d) To substantiate any payment increases received under this Article
V - A during the Extension Year of July 1, 1999 through June 30, 2000,
the Contractor must submit by September 30, 1999, a cost justification
financial statement by an independent Certified Public Accountant or
Public Accountant which details the total costs incurred by the
Contractor for all of its operations and, separately, for its
operations under this Contract for the Extension Years 1998-1999 and
1997-1998.
(e) In each annual cost justification financial statement, the
Contractor will treat costs for escorts separately from all other
costs. As a minimum, the Contractor will supply in each annual cost
justification financial statement all data required by the New York
State Education Department related to this Contract, and the submittal
shall include, but is not necessarily limited to, New York State
Education Department approved cost justification forms. The Contractor
must supply promptly any and all additional cost data as required by
the BOE or the State Education Department.
(f) Until six (6) years after completion of its services hereunder, or
six (6) years after the date of termination of this Extension and
Amendment Agreement, whichever
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
shall occur later, the Contractor shall retain and maintain complete
and correct books and records related to all aspects of the
Contractor's obligations hereunder. Records must be maintained
separately, so as to identify clearly the expenses applicable to the
Contract, all previous extension and amendment agreements and this
Extension and Amendment Agreement and be distinguishable from all
other costs not incurred under the Contract, all previous extension
and amendment agreements and this Extension and Amendment Agreement.
Except as provided in this subparagraph, all other provisions of the
Contract as amended that relate to the retainage and maintenance of
records shall remain in full force and effect.
(g) To be eligible to "carry forward" unabsorbed cost increases
arising from cost growth, if any, greater than the two-and-two-tenths
percent (2.2%) fixed cap during the 1996-97 Extension Year and the
two-and-sixth-tenths percent (2.6%) fixed cap during the 1997-98
Extension Year of Contract Serial Nos. 0070, 8108, G8805, G8891, and
G9325, the Contractor must meet eligibility conditions and must adhere
to rules, procedures and definitions expressed in Appendix A. The said
eligibility conditions, rules, procedures and definitions for the
allowance of a "cost carry-forward" of such unabsorbed cost increases
under Contract Serial Nos. 0070, 8108, G8805, G8891, and G9325 are
hereby incorporated by this reference into this Extension and
Amendment Agreement as hereby incorporated by this reference into this
Extension and Amendment Agreement as if set forth herein in their
entirety, and a copy of the said eligibility conditions, rules,
procedures and definitions is hereto annexed as "Appendix A".
(5) Required Analysis of Costs. To determine the allowable increase in
costs for the extension year, as specified in Section V-A 1 of this
agreement, the following analysis of the Cost Justification Financial
Statement must be undertaken:
Step 1: Divide the total applicable annual operating costs by the
number of vehicle days for both the base year and the year
previous to the base year to determine the average daily cost
per vehicle for each of those years. The base year is the year
immediately preceding the extension year.
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
Step 2: Subtract the average daily cost per vehicle for the year
previous to the base year from the average daily cost per
vehicle for the base year to determine the increase in the
average daily cost per vehicle.
Step 3: Divide the increase in the average daily cost per vehicle by
the average daily cost per vehicle for the year previous to
the base year to determine the percent increase in the average
daily cost per vehicle.
Step 4: Compare the percent increase in the average daily cost per
vehicle to the percentage by which the Consumer Price Index as
of May of the base year shall have increased over the Consumer
Price Index as of May of the year previous to the base year
and to the appropriate annual caps in the increase as
stipulated in Section V-A 1 of this agreement. Whichever is
the least of the three percentages will be the allowable
increase applied to the daily rate for the extension year.
Step 5: Only for Contract Serial Nos. 0070, 8108, G8805, G8891 and
G9325 for the rate augmentations in the Sixteenth and
Seventeenth Extension Years, repeat steps 1 to 4 for any
allowable cost increases accrued during the period of Twelfth
to Fourteenth Extension Years and, when appropriate, any
allowable cost increases accrued during the Fifteenth to
Sixteenth Extension Years. Determine the percent increase in
the average daily cost per vehicle from the Twelfth to
Fourteenth Extension Years and, when appropriate, from the
Fifteenth to Sixteenth Extension Years. If the percent
increase in the average daily cost resulting in step 3 is
insufficient to justify fully the Consumer Price Index
increment in Step 4 or any applicable fixed cap, add the
percent increase of the Twelfth to Fourteenth Extension Years,
if any, to the percent increase in Step 3. If there is any
percent increase in the average daily cost per vehicle still
unabsorbed, such increase may be carried forward to the
Seventeenth Extension Year.
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
For the Seventeenth Extension Year only, also add the
unabsorbed increase of the Fifteenth to Sixteenth Extension
Years, if any, to the percent increase in Step 3.
(6) Allowable Cost Increases. Only increases in "net allowable costs" will
justify augmentation of the daily vehicle rate from one extension year to
the next. "Allowable costs" are limited by the following: costs not
attributable to the Contractor's operations pursuant to this Contract,
costs which are not ordinary and/or reasonable, costs which are not
documented, and costs disallowed by the New York State Education Department
and/or BOE auditors are not permitted to justify increases of the daily
rate per vehicle. The Director and Office of Auditor General shall have the
right, power and authority to prescribe standardized miscellaneous cost
categories for all contractors.
(7) Access to Subcontractors. If with the approval of the Director, the
Contractor subcontracts any portion of the services under this Contract,
the Contractor must include in any such subcontract agreement a provision
which allows full and unimpeded access by the BOE, the New York State
Education Department or the New York City Office of the Comptroller to the
books and records of a subcontractor for inspection, audit and copying
purposes. The Contractor agrees and covenants to render all necessary
assistance to obtain any requested documents from subcontractors. The
Contractor's inability to obtain requested documentation from any such
entities will not excuse a failure to provide the documentation as a means
to justify payment increases.
(8) Absence of Cost Justification Financial Statement. The Contractor's
failure to submit an annual Cost Justification Financial Statement by the
deadline date as above expressed will result in the forfeiture of any
increase later justified for the period from the service start date to the
day the statement is received at the Office of Pupil Transportation, unless
the Director determines that reasonable circumstances exist to excuse the
Contractor's late submittal.
(9) Cost Increase Surety Bond. If the Contractor desires to receive the
annual daily vehicle rate(s) augmentation in advance of the "final" results
of the BOE audit of each year's Cost Justification Financial Statement (5),
the Contractor must post by September 30th of each Extension Year a surety
payment bond to insure the refund of any overpayments or debts the BOE
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
deems to be due and owing from the Contractor. Each bond must insure
expressly against the Contractor's inability to justify claims in each
annual Cost Justification Financial Statement to the extent of all payment
increases the BOE will make to the Contractor during each prospective
Extension Year. Each bond must be issued by a company licensed to do
business in New York State by the Superintendent of Insurance. The coverage
period of each bond must extend from September 1st of each Extension Year
until such date as the Contractor receives from the BOE "final written
notice of the results of the audit of each year's Cost Justification
Financial Statement. Each bond must extend to the BOE a claim submittal
period of at least ninety (90) days beyond the date of the Contractor's
receipt of the "final" audit result notice for the purpose of recouping any
overpayments based on the Contractor's inability to justify all or any
portion of each annual increase. Each bond must name both the BOE and the
City of New York as the insured parties. To calculate the amount of a bond,
use the following formula: the daily rate per vehicle for each contract
item (i.e., for a given Extension Year) multiplied by the total number of
vehicles for each contract item (i.e., for a given Extension Year excluding
spare and maintenance vehicles) multiplied by 180 days and multiplied again
by the percentage of payment increase as reflected either by the Consumer
Price Index for the month of May of each succeeding Extension Year or the
maximum cap for a given Extension Year, whichever is less; then, add to
this figure an amount equal to the Base Escort Daily Compensation Rate
(i.e., for a given Extension Year) multiplied by the total number of
vehicles for each contract item (i.e., for a given Extension Year excluding
spare and maintenance vehicles) multiplied by 180 days and multiplied again
by the percentage of payment increase as reflected either by the Consumer
Price Index for the month of May of each succeeding Extension Year or the
maximum cap for a given Extension Year, whichever is less.
(a) Exemption from Cost Increase Surety Bond. If the Contractor
provides a performance bond, letter of credit or a cash performance
deposit for a given prospective Extension Year, the Contractor may
forego the requirements in this Paragraph (B) (9), provided that the
Contractor submits by September 30th of each Extension Year a written
consent that the BOE may deduct such amounts of money as the BOE deems
to be properly due and owing from the Contractor from any money to be
earned by the Contractor under any Contract at any time. The verified
consent will be on a form approved and supplied
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
by the Director. A Contractor who is not required to provide a
Performance Bond or Letter of Credit because it provides 15 or fewer
vehicles pursuant to this agreement, may choose to either present the
BOE with the aforedescribed cost increase Surety Bond or consent to
have the increase in payments coming due to it withheld until the
approval of its cost justification statement.
(b) Retroactive Payments. (i) Contractors will be entitled to receive
retroactive payment increases without any interest only after the
date of approval and to the extent of such approval of the cost
justification statement, and the Contractor will not be entitled
to receive retroactive payment in one lump sum but only in
monthly installments to be determined at the Director's sole
discretion.
(ii) Should any retroactive payments promised by the foregoing
language of Paragraph 9 be deemed or found to be illegal or
otherwise improper due to being in violation of any Federal,
State, New York City or BOE law, rule, regulation, by-law or
official written policy (e.g., the BOE "Standard Operating
Procedures for Financial Management Centers"), then the BOE, its
employees or agents cease to have any and all obligations to pay
same and contractor's obligations hereunder remain unchanged.
(iii) The Contractor hereby agrees and covenants to refrain from
any litigation and to release, hold harmless and indemnify the
BOE and the City of New York (including reasonable attorney fees)
concerning any claims, actions or special proceedings by the
Contractor or any other party arising from denial(s) or
postponement(s) of any payment increase(s) or any portion(s)
thereof due to the Contractor's failure to meet the express
terms, conditions and deadlines of this paragraph 9.
(10) Adjustments to Later Payments. Based on the BOE's audit of the
Contractor's annual statements and financial records, the BOE may make any
necessary adjustments in any later payments which become due and owing to
the Contractor during a given Extension Year to compensate for any excesses
of payments over cost increases.
(11) Refund of Overpayment. The Contractor further agrees and covenants to
refund any and all additional monies due to the
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
BOE within thirty (30) days of the final audit report, if the amount of
each year's payment excess over allowable cost increase is greater than any
payments due and owing for the balance of a given Extension Year, except
where a refund is obtained from the bond herein described
(12) In the event of any apparent inconsistencies between any other
provisions of the Contract and this Article V - A, the provisions of this
Article V - A will prevail.
(C) For Contracts under Serial Nos. 7165, 7200, and 7291, there is no separate
daily rate for escort service. Therefore, during the First, Second and Third
Extension Years of Contracts under Serial Nos. 7165, 7200 and 7291, there shall
be no special or separate increases in any payment or allowance for escorts
other than that expressed herein above at Paragraph (B). Regarding only
Contracts under Serial Nos. 0070, 8108, G8805, G8891 and G9325, Article XIX
entitled, "Escorts," as amended previously, is hereby amended further so that
subparagraph A, subdivision (2), as numbered by the First Amendment Agreement,
shall read as follows for the balance of the Contract term:
"(2) However, the parties agree that, for only so long as and only to the
extent that the New York City Administrative Code requires the BOE to
utilize escorts on special education runs, the Contractor will continue to
provide such escorts and substitute escorts in addition to vehicle
operator, as hereinafter allowed, through June 30, 2000, and that:
"(a) Escort Compensation. Except for overtime, the BOE will compensate
the Contractor for each full day for each escort who provides actual
service under this Contract in an amount to be calculated in the
following manner subject to the Director's approval of all or any
portion of the Contractor's claims in each of the below described
annual Escort Cost Justification Financial Statements:
"(i) During the Fourteenth Extension Year, the "Base Escort Daily
Compensation Rate" shall be equal to ninety-eight-and-one-half
percent (98.5%) of the Base Escort Daily Compensation Rate
provided as of June 30, 1995, or such lesser amount that
represents the audited and approved decrease from the Base Escort
Daily Compensation Rate paid to the contractor during the
Thirteenth Extension Year. Also, the BOE will pay "Wage Accrual
Compensation" in the exact amount the Contractor actually paid
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
either to or for escorts during the Fourteenth Extension Year, if
any, and only when known after a BOE audit and which was required
to be paid. No contractor may receive as Wage Accrual
Compensation an amount in the aggregate which is more than ten
percent (10%) above the total reimbursed costs for wage accruals
as of June 30, 1995.
"(ii) During the Fifteenth Extension Year, the BOE will increase
the "Base Escort Daily Compensation Rate" in an amount to be
derived by application of subparagraph (b) hereinafter, or such
lesser amount that represents the audited and approved increase
over the Base Escort Daily Compensation Rate paid to the
contractor during the Fourteenth Extension Year. Also, the BOE
will pay "Wage Accrual Compensation" in the exact amount the
Contractor actually paid either to or for escorts during the
Fifteenth Extension Year, if any, and only when known after a BOE
audit and which was required to be paid. No contractor may
receive as Wage Accrual Compensation an amount in the aggregate
which is more than ten percent (10%) above the total reimbursed
costs for wage accruals as of June 30, 1996.
"(iii) During the Sixteenth Extension Year, the BOE will increase
the "Base Escort Daily Compensation Rate" in an amount to be
derived by application of subparagraph (b) hereinafter, or such
lesser amount that represents the audited and approved increase
over the Base Escort Daily Compensation Rate paid to the
contractor during the Fifteenth Extension Year. Also, the BOE
will pay "Wage Accrual Compensation" in the exact amount the
Contractor actually paid either to or for escorts during the
Sixteenth Extension Year, if any, and only when known after a BOE
audit and which was required to be paid. No contractor may
receive as Wage Accrual Compensation an amount in the aggregate
which is more than ten percent (10%) above the total reimbursed
costs for wage accruals as of June 30, 1997.
"(iv) During the Seventeenth Extension Year, the BOE will
increase the "Base Escort Daily Compensation Rate" in an amount
to be derived by application of subparagraph (b) hereinafter, or
such
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
lesser amount that represents the audited and approved increase
over the Base Escort Daily Compensation Rate paid to the
contractor during the Sixteenth Extension Year. Also, the BOE
will pay "Wage Accrual Compensation" in the exact amount the
Contractor actually paid either to or for escorts during the
Seventeenth Extension Year, if any, and only when known after a
BOE audit and which was required to be paid. No contractor may
receive as Wage Accrual Compensation an amount in the aggregate
which is more than ten percent (10%) above the total reimbursed
costs for wage accruals as of June 30, 1998.
"(v) During the Eighteenth Extension Year, the BOE will increase
the "Base Escort Daily Compensation Rate" in an amount to be
derived by application of subparagraph (b) hereinafter, or such
lesser amount that represents the audited and approved increase
over the Base Escort Daily Compensation Rate paid to the
contractor during the Seventeenth Extension Year. Also, the BOE
will pay "Wage Accrual Compensation" in the exact amount the
Contractor actually paid either to or for escorts during the
Eighteenth Extension Year, if any, and only when known after a
BOE audit and which was required to be paid. No contractor may
receive as Wage Accrual Compensation an amount in the aggregate
which is more than ten percent (10%) above the total reimbursed
costs for wage accruals as of June 30, 1999.
"(b) Annual Increase of the Base Escort Daily Compensation Rate.
Except during the Fourteenth Extension Year in which the BOE will
reduce the Base Escort Daily Compensation Rate to equal
ninety-eight-and-one-half percent (98.5%) of such rate paid as June
30, 1995 each succeeding Extension Year the BOE will augment the
amount of the Base Escort Daily Compensation Rate according to the
payment increase limits expressed in Article V - A, Paragraph (1)
(i.e., Paragraph (B)(l) above), provided the Contractor justifies such
increases, if any, through the submittal of a separate annual Escort
Cost Justification Financial Statement according to the same terms,
conditions and deadlines expressed in Article V - A, Paragraphs (3)
through (12) (i.e., Paragraphs (B) (3) through (B) (12) above). This
provision does not affect
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
payment for overtime escort services, which is governed separately at
Article XIX, Paragraph (2) (c) (i.e., Paragraph (C) (2) (c) below).
"(c) Payment for Overtime. Where the Contractor actually provides
scheduled overtime escort services due to BOE authorization, the BOE
will reimburse the Contractor for such services in the exact amount of
the costs for overtime wages and statutory fringe benefits. No
reimbursement will be permitted for occasional or episodic overtime.
"Overtime" is defined as service which exceeds eight (8) hours within
any ten (10) hour daily period. The hourly rate for overtime escort
services will not exceed one-and-one-half times the regular hourly
wage rate.
"(d) Monthly Advance Payment for Escort Services. On or about the
first school day of each calendar month, the XXX will pay an eligible
contractor in advance an amount equal to the anticipated usage of
escort service for that month, excluding overtime. For each month's
overtime claims, the BOE will pay the Contractor only after receipt
and approval of a voucher on a XXX form, which will contain such
detail as the BOE may require to confirm the Vendor's claims and which
will be subject to XXX audit.
" (i) Surety Payment Bond. To receive advance monthly payments,
the Contractor must file with the BOE by June 1st of each
Extension Year a bond in the amount of the anticipated
utilization of escort service for one (1) month. The coverage
period for each bond must be from September 1st through August
31st of each prospective year. To calculate the bond amount for
one year, use this formula: twenty (20) days multiplied by the
total number vehicles (excluding spares) multiplied again by the
Base Escort Daily Compensation Rate for a given Extension Year.
Each bond must name the BOE and the City of New York as the named
insureds. Each bond must insure against any and all acts of
commission or omission by the Contractor, any subcontractors,
subsidiaries, parent or affiliate entities or any officers,
owners, directors, employees, servants, agents, independent
contractors or any other parties which cause the failure of
proper disbursement to the intended escort beneficiaries, whether
any such party acts within or outside the scope of
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
employment or contractual performance. Bonds must be issued by a
company licensed by the Superintendent of Insurance to do
business in New York State.
"(ii) Where the BOE makes payments to the Contractor in excess of
what is properly due and owing under subparagraph (a), the BOE
may recoup such amounts from future payments to the Contractor,
request the Contractor to refund such amounts, or take whatever
other actions are necessary to retrieve excessive payments. Where
the BOE requests the Contractor to make a refund, the Contractor
will remit payment within thirty (30) days of the Contractor's
receipt of the final audit report.
"(iii) Where the Contractor elects to delegate escort services to
a subcontractor, the Contractor may direct the BOE to make
payments in the full amounts owed under subdivisions (a), (b) and
(c) or any portions thereof directly to the subcontractor. The
Contractor must make such payment directions in writing on a form
approved by the BOE.
"(e) Limitation on Wage Accruals. The BOE will compensate the
Contractor for wage accruals only if payment of such wage accruals to
escorts is mandated by an express provision to that effect in
existence prior to the execution of this Extension and Eighth
Amendment Agreement as part of a written collective bargaining
agreement between the Contractor and a union that represents the
Contractor's employees. The BOE will not recognize the establishment
of any new wage accrual packages or collective bargaining agreements
which provide for such payments if executed after this Extension and
Eighth Amendment Agreement. Moreover, the BOE will not make payments
based upon any revision of entitlement schedules even if established
before execution of this Extension and Eighth Amendment Agreement
which would increase any benefits to escorts. No enhancements of wage
accrual benefits will be at the BOE's expense either directly or
indirectly.
"(f) The Contractor must provide all of the escorts necessary to
perform all of the work covered by the Contract, including additional
and spare vehicles. The Contractor must have sufficient, qualified and
approved personnel to enable the Contractor to dispatch substitute
escorts promptly if, when and where necessary to ensure
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
continuous, uninterrupted and punctual service in each and every
instance. The Contractor must operate every vehicle for the
transportation of handicapped children in strict adherence to the
provisions of Section 19-603, Paragraphs (a) and (b) of the New York
City Administrative Code. If the law is amended during the term of
this Extension and Eighth Amendment Agreement to eliminate the further
requirement of escorts, the Contractor must cease to provide escorts
upon five (5) days notice from the XXX to that effect. After the
effective date of the notice, the XXX and the City of New York will
not be obligated to the Contractor or any other party for the
provision of escort services.
"(g) Basic, Refresher and Additional Training for Special Education
Escorts. The BOE will continue to provide basic and refresher training
for all special education escorts, including all instructional staff
and educational materials, at no cost to the Contractor. Whereupon the
BOE revises basic and/or refresher training courses to include
additional subject material and/or fields, the Contractor must
cooperate to have all escorts and substitute escorts trained in the
additional skills and responsibility, according to BOE training
schedules.
"(h) Escort Subcontractor. The Contractor may delegate performance of
escort services to an acceptable subcontractor; however, the
Contractor will remain responsible for all pertinent contractual
obligations. The Director will have sole and final discretion to
approve or disapprove at any time the Contractor's particular choice
of an initial or replacement escort subcontractor. Whereupon the BOE
requests new, updated or revised information regarding any
subcontractor, the Contractor must supply the data immediately and/or
secure the cooperation of the affected subcontractor to make full and
prompt disclosure of the requested information.
"(i) Annual List of Escorts. By August 31st of each Extension Year or
any other time as required by the Director, the Contractor must
provide a list of all escorts and substitute escorts to be utilized
for special education school bus service during the prospective school
year. The list must be on a form to be supplied by OPT and will
include, but not be limited to, the following information: the name,
social security number and date of original hire of each escort.
Whenever a
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
change occurs in the escort list, the Contractor will provide updated
information on the OPT form(s) not later than the end of the month in
which any change occurs."
(D) NO DUPLICATION OR MISALLOCATION OF COSTS. To prevent unjust enrichment
through misrepresentation or falsification of cost increase claims, the
Contractor hereby agrees, consents and covenants to abide in all respects by the
following rules for the treatment of fixed, variable or other costs utilized to
establish increased expenses from one given Extension Year to the next:
(1) Duplication of Costs. Concerning only Contracts under Serial Nos. 0070,
8108, G8805, G8891 and G9325, in the establishment of allowable cost
increases under Article V - A (see Paragraph (B), supra) and Article XIX
(see Paragraph (C), supra), the Contractor must not commingle, combine,
merge or duplicate costs in any manner or to any extent between the two
Articles, i.e., costs used to justify increased payments for vehicles and
drivers under Article V - A may not be used again to justify increases in
the Base Escort Daily Compensation Rate, and vice versa.
(2) Allocation of Costs. If the Contractor misallocates any cost item(s),
the allocation will be disallowed. Improper allocation or "misallocation"
is defined as a transgression of one or more of the following precepts:
(a) Only those of the Contractor's fixed, variable or other costs
which are directly attributable to the performance and/or
administration of BOE pupil transportation contract work will be
considered allowable expense items. Costs attributable to a
contractor's other operations, whether in the public or private
sector, will not be allowed to justify payment increases.
(b) Costs must be attributable solely to the specific group of
Contracts covered by this Extension Agreement, i.e., Contract Serial
Nos. 0070, 7165, 7200, 7291, 8108, G8805, G8891 and G9325. Expenses
allocable to BOE pupil transportation contracts other than these eight
serial numbers must not appear in any materials presented to justify
payment increases under this Extension Agreement.
(c) Costs must be attributable solely to the corporate, partnership,
sole proprietorship or other entity which constitutes the Contractor.
Expenses allocable to a parent or other affiliated entity must not
appear on the
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
Contractor's cost justification financial statement. Where employees,
offices, storage and maintenance facilities or other cost items are
shared by several affiliated or unaffiliated entities, all or some of
which hold separate BOE transportation contracts, assertions of
expense increases must reflect only those percentages of utilization
directly allocable to the claimant Contractor.
(d) Allocation of costs must be based on the number of vehicle days
and not merely the number of vehicles under contract.
(e) Such other forms of misallocation of costs as may be determined by
the BOE, the New York City Office of the Comptroller or the New York
State Education Department, in accordance with the terms and
conditions of this Contract.
E. AMENDMENTS TO PERFORMANCE SECURITY PROVISIONS.
(1) The Extension and Seventh Amendment of Contract for Special Education Pupil
Transportation Services is hereby amended at Article (E), Paragraph (2) so that
Paragraph 2 (b) of the provisions of the original Contracts, as currently
amended and now entitled, "INSURANCE AND PERFORMANCE SECURITY," shall read as
follows:
"(b) Any contractor who receives an award of contract for 16 to
25 vehicles has the following options available to assure full and
faithful performance of the Contract:
"(1) Authorize the Board of Education to retain ten percent (10%)
of each payment made to the Contractor from the first five (5)
months' payments of each year of the Contract in an interest
bearing account maintained by the New York City Office of the
Comptroller to assure full and faithful performance of the
Contract. This retainage shall be paid to the Contractor with
interest at the conclusion of each one (1) year period of full
and faithful performance of this Contract.
"(2) Provide a confirmed irrevocable Letter(s) of Credit from an
acceptable financial institution equal in value to ten percent
(10%) of the contract value which may be reduced each month by
ten per-
26
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
cent (10%) of the monthly payment authorized by the Contractor to
be retained by the BOE during the Extension Year from July 1,
1995 through June 30, 1996. Whereupon at any time during this
Extension Agreement there shall be any increase(s) or decrease(s)
in the Contractor's number of contract and/or additional vehicles
beyond five percent (5%) of the Contractor's total fleet
(excluding spare and maintenance vehicles), the BOE and the
Contractor shall adjust the performance security accordingly to
maintain the level at a constant ten percent (10%) of the
contract value; and, for each instance of any increases, the
Contractor shall furnish additional performance security via
confirmed irrevocable Letter(s) of Credit from an acceptable
financial institution or written authorization of retainage
within thirty (30) days of the award of each increase in the
number of vehicles. The amounts retained shall be deposited in an
interest bearing account maintained by the New York City Office
of the Comptroller with annual reports of the amounts retained
and interest earned provided to the Contractor. This retainage
will be returned to the Contractor with interest after the
conclusion of the full and faithful performance of this Extension
Agreement, or whereupon the Contractor replaces the retainage
with a confirmed irrevocable Letter(s) of Credit from an
acceptable financial institution in an amount equal to ten
percent (10%) of the contract value at the time of the
conversion.
"3 Provide a confirmed irrevocable Letter(s) of Credit from an
acceptable financial institution equal in value to ten percent
(10%) of the contract value which may be reduced each month by
five percent (5%) of the monthly payment authorized by the
Contractor to be retained by the BOE during the Extension Years
of July 1, 1995 through June 30, 1996 and July 1, 1996 through
June 30, 1997. Whereupon at any time during this Extension
Agreement there shall be any increase(s) or decrease(s) in the
Contractor's number of contract and/or additional vehicles beyond
five percent (5%) of the Contractor's total fleet (excluding
spare and maintenance vehicles), the BOE and the Contractor shall
adjust the performance security accordingly
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
to maintain the level at a constant ten percent (10%) of the
contract value; and, for each instance of increase, the
Contractor shall furnish additional performance security via
confirmed irrevocable Letter(s) of Credit from an acceptable
financial institution or written authorization of retainage
within thirty (30) days of the award of each increase in the
number of vehicles. The amounts retained shall be deposited in an
interest bearing account maintained by the New York City Office
of Comptroller with annual reports of the amounts retained and
interest earned provided to the Contractor. This retainage will
be returned to the Contractor with interest after the conclusion
of the full and faithful performance of this Extension Agreement,
or whereupon the Contractor replaces such retainage with a
confirmed irrevocable Letter(s) of Credit from an acceptable
financial institution in an amount equal to ten percent (10%) of
the contract value at the time of the conversion.
"(4) Provide a confirmed irrevocable Letter(s) of Credit from an
acceptable financial institution equal in value to ten-percent
(10%) of the contract value renewable each year at an amount
equal to ten percent (10%) of the then current value of the
Contract.
"(5) Provide any combination of cash security deposit and
confirmed irrevocable Letter(s) of Credit from an acceptable
financial institution equal to ten percent (10%) of the contract
value. Whereupon at any time during this Extension Agreement
there shall be any increase(s) or decrease(s) in the Contractor's
number of contract and/or additional vehicles beyond five percent
(5%) of the Contractor's total fleet (excluding spare and
maintenance vehicles), the BOE and the Contractor shall adjust
the performance security accordingly to maintain the level at a
constant ten percent (10%) of the contract value; and, for each
instance of increase, the Contractor shall furnish additional
performance security via confirmed irrevocable Letter(s) of
Credit from an acceptable financial institution or written
authorization for retainage within thirty (30) days of the award
of each in-
28
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
crease in the number of vehicles. Any cash security deposit(s)
and/or retainage shall be deposited in an interest bearing
account maintained by the New York City Office of Comptroller
with annual reports of the amounts held and interest earned
provided to the Contractor. Any cash security deposit(s) and/or
retainage will be returned to the Contractor with interest after
the full and faithful performance of this Extension Agreement or
whereupon the Contractor replaces any retainage with a confirmed
irrevocable Letter(s) of Credit from an acceptable financial
institution that brings the performance security into an amount
equal to ten percent (10%) of the contract value at the time of
conversion."
(2) The Extension and Seventh Amendment of contract for Special Education Pupil
Transportation Services is hereby amended at Article (E), Paragraph (2) so that
Paragraph 2 (c) of the provisions of the original Contracts, as currently
amended and now entitled, "INSURANCE AND PERFORMANCE SECURITY," shall read as
follows:
"(c) Any contractor who receives an award of contract for 26 or
more vehicles has the following options available to assure full and
faithful performance of the Contract:
"(1) Provide a confirmed irrevocable Letter(s) of Credit from an
acceptable financial institution equal in value to ten percent
(10%) of the contract value which may be reduced each month by
ten percent (10%) of the monthly payment authorized by the
Contractor to be retained by the BOE during the Extension Year
from July 1, 1995 through June 30, 1996. Whereupon at any time
during this Extension Agreement there shall be any increase(s) or
decrease(s) in the Contractor's number of contract and/or
additional vehicles beyond five percent (5%) of the Contractor's
total fleet (excluding spare and maintenance vehicles), the BOE
and the Contractor shall adjust the performance security
accordingly to maintain the level at a constant ten percent (10%)
of the contract value; and, for each instance of any increases,
the Contractor shall furnish additional performance security via
confirmed irrevocable Letter(s) of Credit from an acceptable
financial institution or written autho-
29
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
rization of retainage within thirty (30) days of the award of
each increase in the number of vehicles. The amounts retained
shall be deposited in an interest bearing account maintained by
the New York City Office of the Comptroller with annual reports
of the amounts retained and interest earned provided to the
Contractor. This retainage will be returned to the Contractor
with interest after the conclusion of the full and faithful
performance of this Extension Agreement, or whereupon the
Contractor replaces the retainage with a confirmed irrevocable
Letter(s) of Credit from an acceptable financial institution in
an amount equal to ten percent (10%) of the contract value at the
time of the conversion.
"2 Provide a confirmed irrevocable Letter(s) of Credit from an
acceptable financial institution equal in value to ten percent
(10%) of the contract value which may be reduced each month by
five percent (5%) of the monthly payment authorized by the
Contractor to be retained by the BOE during the Extension Years
of July 1, 1995 through June 30, 1996 and July 1, 1996 through
June 30, 1997. Whereupon at any time during this Extension
Agreement there shall be any increase(s) or decrease(s) in the
Contractor's number of contract and/or additional vehicles beyond
five percent (5%) of the Contractor's total fleet (excluding
spare and maintenance vehicles), the BOE and the Contractor shall
adjust the performance security accordingly to maintain the level
at a constant ten percent (10%) of the contract value; and, for
each instance of increase, the Contractor shall furnish
additional performance security via confirmed irrevocable
Letter(s) of Credit from an acceptable financial institution or
written authorization of retainage within thirty (30) days of the
award of each increase in the number of vehicles. The amounts
retained shall be deposited in an interest bearing account
maintained by the New York City Office of Comptroller with annual
reports of the amounts retained and interest earned provided to
the Contractor. This retainage will be returned to the Contractor
with interest after the conclusion of the full and faithful
performance of this Extension Agreement, or whereupon the
Contractor replaces
30
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
such retainage with a confirmed irrevocable Letter(s) of Credit
from an acceptable financial institution in an amount equal to
ten percent (10%) of the contract value at the time of the
conversion.
"(3) Provide a confirmed irrevocable Letter(s) of Credit from an
acceptable financial institution equal in value to ten percent
(10%) of the contract value renewable each year at an amount
equal to ten percent (10%) of the then current value of the
Contract.
"(4) Provide any combination of cash security deposit and
confirmed irrevocable Letter(s) of Credit from an acceptable
financial institution equal to ten percent (10%) of the contract
value. Whereupon at any time during this Extension Agreement
there shall be any increase(s) or decrease(s) in the Contractor's
number of contract and/or additional vehicles beyond five percent
(5%) of the Contractor's total fleet (excluding spare and
maintenance vehicles), the BOE and the Contractor shall adjust
the performance security accordingly to maintain the level at a
constant ten percent (10%) of the contract value; and, for each
instance of increase, the Contractor shall furnish additional
performance security via confirmed irrevocable Letter(s) of
Credit from an acceptable financial institution or written
authorization for retainage within thirty (30) days of the award
of each increase in the number of vehicles. Any cash security
deposit(s) and/or retainage shall be deposited in an interest
bearing account maintained by the New York City Office of
Comptroller with annual reports of the amounts held and interest
earned provided to the Contractor. Any cash security deposit(s)
and/or retainage will be returned to the Contractor with interest
after the full and faithful performance of this Extension
Agreement or whereupon the Contractor replaces any retainage with
a confirmed irrevocable Letter(s) of Credit from an acceptable
financial institution that brings the performance security into
an amount equal to ten percent (10%) of the contract value at the
time of conversion."
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
(3) The Extension and Seventh Amendment of Contract for Special Education Pupil
Transportation Services is hereby amended at Article (e), Paragraph (5) so that
Paragraph 5 of the provisions of the original Contracts, as currently amended
and now entitled, INSURANCE AND PERFORMANCE SECURITY," shall read as follows:
"5. If the Director awards any additional vehicles to the
Contractor during this extension periods, making it necessary to
provide performance security for the first time or additional
performance security, then the Contractor must provide sufficient
performance security to cover all additional vehicles (excluding
spare and maintenance vehicles) within thirty (30) days of
receipt of each award. This condition shall apply to individual
or cumulative increases of a contractor's total fleet (excluding
spare and maintenance vehicles) equaling at least five (5)
vehicles or five percent (5%), whichever is greater."
(4) The Extension and Seventh Amendment of Contract for Special Education Pupil
Transportation Services is hereby amended at Article (E), Paragraph (7) so that
Paragraph 7 of the provisions of the original Contracts, as currently amended
and now entitled, "INSURANCE AND PERFORMANCE SECURITY," shall read as follows:
"7. For all performance security purposes, contractor entities
that are subject to common control as determined by the BOE based
upon an analysis of (a) ownership of the corporate, partnership,
sole proprietorship or other entity's assets, (b) coincidence of
corporate, partnership, sole proprietorship or other entity's
owners, partners, managers, officers and/or directors, and (c)
such other factors as the BOE shall determine to be relevant,
shall be deemed to be one contractor. If the BOE determines
contractor entities to be subject to common control, contractors
shall be required to provide the appropriate performance security
for the number of vehicles operated by all of the corporate
entities that are determined to be subject to common control. For
the purpose of determining common control and performance
security requirements, all BOE pupil transportation contracts
shall be considered."
32
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
(F) Section E of the Extension & Seventh Amendment Agreement of Contract Serial
Nos. 0070, 8107, 8108, G8805, G8891 and G9325 and is hereby amended to read
as follows:
"1. Priority in Hiring and Master Seniority Lists:
"There shall be established two industry-wide Master Seniority Lists. One
list shall be composed of all operators (drivers), mechanics, and
dispatchers and the other list shall be composed of escorts
(matrons-attendants) who were employed as of June 30, 1995, under a
contract between their employers and the Board for the transportation of
school children in the City of New York, who are furloughed or become
unemployed as a result of loss of contract or any part thereof by their
employers, or as the result of a reduction in service directed by the Board
during the term of the contract, in accordance with their date of entry
into the industry. All operators (drivers), mechanics, dispatchers and
escorts (matrons-attendants) on the Master Seniority Lists who participated
in the Division 1181 A.T.U. - New York Employees Pension Fund and Plan as
of June 30, 1995, and who do not exercise their option to withdraw from the
Fund and Plan shall continue to participate in such Pension Plan.
"Any existing contractor or individual who conducted business as a sole
proprietor, or as a member of a partnership or who held a controlling
interest in a corporation that performed service pursuant to contract
expiring in June, 1995 (contractor) shall give priority in employment on
September, 1995 or thereafter on the basis of position on the Master
Seniority List of any additional or replacement operators, mechanics and
dispatchers beyond those performing service as of June 30, 1995 consistent
with the number of employees required by the specifications of the contract
expiring June, 1995 for the number of vehicles providing service to the
Board as of June 30, 1995 to individuals from the Master Seniority List
until such list is exhausted.
"Any new contractors, i.e. those who did not provide service pursuant to
contract expiring June, 1995 (new contractor), shall give priority in
employment in September, 1995 or thereafter on the basis of seniority to
every operator (driver), mechanic and dispatcher performing service
pursuant to such contract starting from the first employee from the Master
Seniority List until such list is exhausted.
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
"Should the Board determine to require the contractor to provide escort service
in addition to the operator, and in the event that all escorts
(matrons-attendants) on the Master Seniority List, who were employed as of June
30, 1995, are not employed as escorts by contractors for the beginning of
service in September of 1995, then said escorts shall be employed in order of
their position on the Master Seniority List.
"2. Compensation
"All operators (drivers), mechanics, dispatchers and escorts
(matrons-attendants) on the industry-wide Master Seniority Lists shall be
employed and paid on a full-time basis based upon the wage scale received from
prior employer under pupil transportation contracts.
"The contractor shall compensate operators (drivers), mechanics and dispatchers
and escorts (matrons-attendants) who appear on the Master Seniority Lists and
who are employed pursuant to contracts to be awarded as follows for the term of
the contract:
"(a) operators (drivers) and dispatchers at a daily rate of pay, including any
COLA, for each day of service, not less than that paid pursuant to any
applicable labor collective bargaining agreement.
"(b) mechanics at a daily rate of pay, including any COLA, for each day of
service, not less than that paid pursuant to any applicable labor
collective bargaining agreement.
"(c) escorts (matrons-attendants) at a daily rate of pay, including any COLA,
for each day of service, not less than that paid pursuant to any applicable
labor collective bargaining agreement.
"Such operators (drivers) and escorts (matrons-attendants) shall be available
for extended service, without additional compensation, which shall be defined as
performance within the particular job category (i.e. drivers as drivers, and
escorts (matrons-attendants) as escorts (matrons-attendants) ) within the eight
(8) hour work day within the spread (8 within 10
34
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
hours) provided for in the collective bargaining agreement covering said
employees, if any.
"3. Welfare
"Contributions by the contractor for providing welfare benefits to operators
(drivers), mechanics, dispatchers and escorts (matrons-attendants), in the event
the contractor employs escorts, who appear on the Master Seniority List shall be
no less than $410 per employee per month on a twelve month basis during each
year of the contract.
"4. Pensions
"The contractor shall sign an agreement with Division 1181 A.T.U. - New York
Employees Pension Fund and Plan to participate in such plan on behalf of all
operators (drivers), mechanics, dispatchers and escorts (matrons-attendants), in
the event the contractor employs escorts who appear on the Master Seniority
Lists and who participated in the Fund and Plan as of June 30, 1995. This
requirement shall not be interpreted to require a contractor to enter into a
collective bargaining agreement with the union nor shall it prohibit the
contractor from entering into a collective bargaining agreement with the union.
The contractor shall file a copy of the executed agreement with the Trustees of
the Fund and Plan to participate in said Fund and Plan and with the Secretary of
the Board with the acknowledgment of the Notice of Award.
"The contractor shall contribute $48.15 per week per operator (driver), mechanic
and dispatcher on the Master Seniority List, and participating in the Plan and
Fund as of June 30, 1995, for forty weeks each year for the term of the
contract, or such greater amount as may be required, based on contributions by
contractors on behalf of the majority of employees participating in the Fund and
Plan pursuant to a collective bargaining agreement with Local 1181 - 1061. The
contractor shall withhold $23.00 a week from each operator, mechanic and
dispatcher participating in said Fund and Plan for forty weeks each year for the
term of the contract, or such greater amount as may be required based on
contributions of a majority of the operators (drivers), mechanics or dispatchers
contributing to the Fund and Plan.
"Such contractors who provide escort service, shall contribute $44.15 per week
per escort (matron-attendant) for forty weeks each year for the term of the
contract, or such greater amount
35
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
as may be required based on contributions by contractors on behalf of the
majority of employees participating in the Fund and Plan pursuant to a
collective bargaining agreement with Local 1181 - 1061. The contractor shall
withhold $18.00 per week from each escort, (matron-attendant) participating in
said Fund and Plan and Fund for forty weeks each year for the term of the
contract, or such greater amount as may be required based on contributions of
the majority of the escorts contributing to the Fund and Plan.
"In connection with employees who are on the Master Seniority List and who do
not participate in the Local 1181 - 1061 Fund and Plan, they shall not be
required to participate in the Plan but shall participate in the collective
bargaining agreement, if any, of their employer.
"The contractor shall pay all such amounts to the Fund and Plan within seven
days after the end of each payroll period.
"5. Enforcement
"In addition to any other remedies provided in the contract between the Board
and the contractor, such as default and/or termination, if the contractor is
found to be in violation of the foregoing employee protection provisions
regarding the payment of wages, welfare benefit contributions, pension
contributions, or other aspects of compensation or benefits, then the Director
of the Office of Pupil Transportation, within thirty (30) days of written
notice, shall withhold the appropriate amounts from any payments due to the
contractor and pay them directly to the applicable union for the benefit of the
employees affected, to the Division 1181 A.T.U. - New York Employees Pension
Fund or other applicable union pension fund for the benefit of the employees
affected or to the appropriate Welfare Fund for the benefit of the employees
affected. If the affected employees are not affiliated with any union, then the
Board shall investigate on their behalf allegations of employee protection
provision violations regarding the payment of wages, welfare benefit or health
insurance contributions, pension or similar savings plan contributions, or other
aspects of compensation or benefits. Upon a finding of any such violation(s),
the Director of the Office of Pupil Transportation shall withhold the
appropriate amounts from any payments due to the Contractor and pay them
directly to the employees or to such health insurance companies or other
institutions as appropriate.
36
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
"In the event any contractor willfully fails to comply, the Board of Education
shall act to cancel such contractor's contract; provided, however, that the
Board shall not be required to act so as to cause a disruption of service.
"6. Contractors providing a total of five vehicles or less pursuant to all
contracts with the Board for the transportation of pupils shall not be subject
to the foregoing provisions with respect to operators (drivers), mechanics and
dispatchers.
"Escorts (matron-attendants) shall not be included in the exclusion provided in
this paragraph six (6).
"7. For the purposes of this section, corporate bidders who are subject to
common control as determined by the Board based upon analysis of:
"(a) ownership of the corporations' assets,
"(b) coincidence of corporate officers and directors, and
"(c) such other factors as the Board determines to be relevant, are deemed to be
one bidder.
"8. The Board may in its sole and unfettered discretion change any date which
determines employee protected status, employer status or any other status, which
is contained in any employee protection provisions of the Contract. The Master
Seniority Lists will be updated to June 30, 1995 as permitted in accordance with
pre-existing collective bargaining agreements executed prior to the date of
execution of this Contract. Furthermore, the rates quoted herein may not be
reflective of current labor rates in effect. The contractor should pay special
attention to the fact that many employees on the Master Seniority Lists have
been in the industry for many years and therefore may be entitled to substantial
wages, pension and welfare benefits and wage accruals.
"The date for inclusion on the Master Seniority List is hereby updated to the
last school day in June, 1995 as permitted in accordance with pre-existing
collective bargaining agreement executed prior to the dare of this Extension
Agreement and Amendment Agreement."
37
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
(G) MISCELLANEOUS VEHICLE SPECIFICATIONS AND OPERATIONAL AMENDMENTS. Any terms,
conditions and specifications to the contrary notwithstanding, the Contract is
hereby amended as follows:
(1) Federal Safety Standards. All vehicles used to perform this Contract
must meet all of the 1977 Federal Safety Standards, as reflected in Title
49 of the Code of Federal Regulations, Part 571, and particularly, Standard
Nos. 105, 111, 220, 221, 222, and 301 (the "1977 Standards") . Violation of
this provision to any extent will be grounds for a determination of
contractual default.
(2) Age and Condition of Vehicles. The vehicles affected by this provision
include all originally contracted vehicles, (i.e., "contract vehicles") and
all additional and spare vehicles. Except for the age of vehicles, nothing
contained in this Paragraph (2) and/or any of its subparagraphs shall be
deemed or construed in any manner or to any extent whatsoever to act and/or
operate in abrogation or derogation of any other individual or cumulative
provisions of the Contract, as heretofore amended and extended.
(a) The Contractor shall furnish service, maintenance and repairs of
all vehicles used in the performance of this contract in compliance
with (i) all manufacturer's guidelines for maintenance, service and
repairs, (ii) all Federal and State of New York statutes, regulations,
rules, guidelines and policies applicable to service, maintenance and
repair of school bus vehicles, (iii) all New York State Department of
Transportation and New York State Department of Motor Vehicles
policies, rules and regulations; and (iii) Federal and State
regulations applicable to maintenance and repair of school bus
vehicles, and (iv) all New York State Education Department, policies,
rules and regulations applicable to service, maintenance and repair of
school bus vehicles. The Contractor shall maintain and, upon demand,
shall present to the Director contemporaneously kept, accurate,
complete, orderly and written records of the school bus vehicle,
maintenance and repair activities performed in accordance with the
foregoing.
(b) The Director shall have the right to disapprove any vehicles under
this Contract and to require the Contractor to furnish an acceptable
replacement vehicles in the event that the Director determines in
his/her reasonable judgement any such vehicle(s) to be unfit for
service.
38
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
(c) The Contractor may continue to use the vehicles that are in
service as of the date of the execution of this Extension and
Amendment Agreement throughout the term of said Extension and
Amendment Agreement, provided each such vehicle is in compliance with
subparagraph (a) and (b) hereof. However, any new vehicles that shall
be placed into service during the term of this Extension and Amendment
Agreement shall be not more than five years old at the time such
vehicle is placed into service. Vehicles transferred among contractors
that are subject to common control shall not be considered as new
vehicles under the preceding sentence. In his/her reasonable
discretion, the Director may allow the continued use of any given
contractor's vehicles that are in service as of the date of the
execution of this Extension and Amendment Agreement upon an assignment
of the Contract, if and to the extent any such assignment shall be
approved in accordance with the terms and conditions of the Contract,
as heretofore amended and extended.
(3) List of Vehicles. Before September of each Extension Year or at any
other time stated by the Director, the Contractor must provide a list of
all vehicles, including spare and maintenance vehicles, to be operated
during each Extension Year. Each list must show for every vehicle the year,
make, type, seating capacity, registration number, bus number, license
plate number, owner, lessee (if applicable), and the expiration date of the
New York State Department of Transportation approval sticker. The
information must be provided on forms approved and supplied by the BOE, and
the Contractor must supply a copy of the title or certificate of
registration for each listed vehicle. Whenever any changes occur in the
list of vehicles, the Contractor must update the list within ten (10)
business days. In addition, the Contractor must provide at the same time
written assurance that all vehicles are equipped with two-way radios.
(4) Fax Machines. All Contractors must provide to the Director an available
number where documents pertaining to pupil transportation may be faxed.
(5) Railroad Crossings. Each vehicle used to perform this Extension
Agreement must come to a full stop before crossing the track(s) of any
railroad and, before crossing any state highway.
39
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
(6) New Laws. Rules. Regulations. By-Laws or School Bus Safety Features.
whereupon any Federal, State, Local or Board of Education laws, rules,
regulations or by-laws are enacted, updated, revised, amended or otherwise
changed in any manner which require the Contractor to undertake any new or
revised procedures affecting school bus personnel or operations (i.e.,
school bus personnel drug or alcohol testing, driver licensing or training
procedures, etc.) or the introduction onto vehicles of new safety features
or any other equipment (i.e., increased seat-back padding, back-up beepers,
stop arms, safety sensors, etc.), the Contractor must comply promptly. The
Contractor must assume the full cost of compliance with any new or revised
driver, escort and/or operational procedures or for the purchase and
installation of new safety features or other equipment in compliance with
any such changes and will not be entitled to any additional remuneration
from the BOE except as expressly permitted by law.
(7) Use of Vehicles. Article XII entitled "Use of Vehicles" in Contract
Serial Nos. 0070, 8108, G8805, G8891 and G9325 and Article 35 entitled "Use
of Vehicles" in Contract Serial Nos. 7165, 7200 and 7291, are hereby
amended by the addition of sixth and seventh unnumbered paragraphs at the
end of each such Article to read as follows:
"In addition to all other uses of vehicles prescribed in pupil
transportation contracts, the Director shall have the right, power and
authority to require the Contractor to provide vehicles during the hours
between the transportation of pupils to school for the morning sessions and
the pick-up of pupils for homeward bound trips for service to other mayoral
and/or non-mayoral City of New York agencies and to any other public
agencies and/or private organizations; as determined by the Director. While
not previously invoked to any great extent during the period of the
Contract, the provisions of the third unnumbered paragraph contained in
this Article XII are still in full force and effect as stated herein. The
Contractor shall be entitled to payment for such services as stipulated in
this contract. At no time shall such service interfere with the timely
transportation of pupils to and from school."
(H) MISCELLANEOUS FINANCIAL AMENDMENTS. Any express terms, conditions and
specifications to the contrary notwithstanding, the Contract is hereby amended
as follows:
(1) Further Amendments. The Contractor hereby agrees and covenants to
execute any further amendment to the Contract
40
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
that the New York State Education Department requires to secure the
Department's approval of this Extension and Eighth Amendment Agreement and
to maintain the continuity of funding.
(2) Insurance Cost Increase Provision. Whereupon the Legislature amends the
State Education Law to allow the Board of Education to obtain State funding
to reimburse the Contractor for any amount of demonstrated and approved
increases in the cost of insurance, this Contract will be deemed
automatically amended to allow such reimbursement according to the exact
terms of any such statutory provision.
(a) Interim Insurance Provision. For only so long as the State
Education Law does not provide expressly for reimbursement of vehicle
insurance and/or escort health and welfare insurance cost increases,
the Board of Education agrees and consents for a limited time to a
partial or complete suspension of the application of the two percent
(2%) prompt payment discount, but only to the for Contract Serial Nos.
0070, 8108, G8805, G8891 and G9325, and only to the extent of the
Contractor's annual proof of eligibility.
(b) To be eligible for a partial or complete suspension of the two
percent (2%) prompt payment discount for each Extension Year regarding
vehicle insurance rate increases, the Contractor must meet eligibility
conditions and adhere to rules, procedures and definitions for the
annual submittal of an "Insurance Rate Increase Claim Statement," as
such are expressed in Appendix B. The said eligibility conditions,
rules, procedures and definitions for partial or complete suspension
of the two percent (2%) prompt payment discount for each Extension
Year are hereby incorporated by this reference into this Extension and
Amendment Agreement as if set out herein in their entirety, and a copy
of the said eligibility conditions, rules, procedures and definitions
is hereto annexed as Appendix B.
(c) Documentation of Escort Health & Welfare Insurance Rate Increases.
To be eligible for a partial or complete suspension of the two percent
(2%) prompt payment discount for each Extension Year regarding escort
health and welfare insurance rate increases, the Contractor must
document to the satisfaction of the Director the amount of escort
health and welfare insurance cost and increases actually experienced.
The base year for the escort
41
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
health and welfare insurance calculation is January 1, 1990 through
December 31, 1990.
(i) During the Fourteenth Extension Year, the Contractor must
show the difference between all premiums paid for required
coverage for the period from January 1, 1995 through December 31,
1995 and the amount paid for such coverage for the period from
January 1, 1990 through December 31, 1990. For a complete
suspension of the discount, the difference between the two (2)
years must be equal to or greater than the value of the two
percent (2%) discount for each year as adjusted by the annual
percentage of increase provided above in Paragraph (B) of this
Extension Agreement and as calculated on a monthly basis at the
coverage levels prescribed by the BOE during the balance of the
contract period. To the extent that the difference is between
zero percent (0%) to two percent (2%), there will be a
proportionate reduction in the suspension of the discount.
(ii) During the Fifteenth Extension Year, the Contractor must
show the difference between all premiums paid for required
coverage for the period from January 1, 1996 through December 31,
1996 and the amount paid for such coverage for the period from
January 1, 1990 through December 31, 1990. For a complete
suspension of the discount, the difference between the two (2)
years must be equal to or greater than the value of the two
percent (2%) discount for each year as adjusted by the annual
percentage of increase provided above in Paragraph (B) of this
Extension Agreement and as calculated on a monthly basis at the
coverage levels prescribed by the BOE during the balance of the
contract period. To the extent that the difference is between
zero percent (0%) to two percent (2%), there will be a
proportionate reduction in the suspension of the discount.
(iii) During the Sixteenth Extension Year, the Contractor must
show the difference between all premiums paid for required
coverage for the period from January 1, 1997 through December 31,
1997 and the amount paid for such coverage for the period from
January 1, 1990 through December 31, 1990.
42
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
For a complete suspension of the discount, the difference between
the two (2) years must be equal to or greater than the value of
the two percent (2%) discount for each year as adjusted by the
annual percentage of increase provided above in Paragraph (B) of
this Extension Agreement and as calculated on a monthly basis at
the coverage levels prescribed by the BOE during the balance of
the contract period. To the extent that the difference is between
zero percent (0%) to two percent (2%), there will be a
proportionate reduction in the suspension of the discount.
(iv) During the Seventeenth Extension Year, the Contractor must
show the difference between all premiums paid for required
coverage for the period from January 1, 1998 through December 31,
1998 and the amount paid for such coverage for the period from
January 1, 1990 through December 31, 1990. For a complete
suspension of the discount, the difference between the two (2)
years must be equal to or greater than the value of the two
percent (2%) discount for each year as adjusted by the annual
percentage of increase provided above in Paragraph (B) of this
Extension Agreement and as calculated on a monthly basis at the
coverage levels prescribed by the BOE during the balance of the
contract period. To the extent that the difference is between
zero percent (0%) to two percent (2%), there will be a
proportionate reduction in the suspension of the discount.
(v) During the Eighteenth Extension Year, the Contractor must
show the difference between all premiums paid for required
coverage for the period from January 1, 1999 through December 31,
1999 and the amount paid for such coverage for the period from
January 1, 1990 through December 31, 1990. For a complete
suspension of the discount, the difference between the two (2)
years must be equal to or greater than the value of the two
percent (2%) discount for each year as adjusted by the annual
percentage of increase provided above in Paragraph (B) of this
Extension Agreement and as calculated on a monthly basis at the
coverage levels prescribed by the BOE during the balance of the
contract period. To the extent that the difference is
43
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
between zero percent (0%) to two percent (2%), there will be a
proportionate reduction in the suspension of the discount.
(d) Payment Deadline for Application of Prompt Payment Discount. The
Contractor consents, agrees and stipulates that the two percent (2%)
prompt payment discount will apply to payments for all services
rendered pursuant to this Contract which the BOE makes within six (6)
business days after thirty (30) days have elapsed from the date of the
BOE's receipt of the Contractor's monthly invoice.
(e) Audit and Recovery of Overpayment. Each Insurance Cost
Justification Financial Statement will be subject to audit and
approval by the BOE. As above provided, the BOE will have the right,
power and authority to recover any amounts paid to the Contractor
which the BOE determines to be unjustified either by deductions from
any later payments which become due and owing to the Contractor.
(g) Limitation on Discount Suspension. The Contractor consents, agrees
and stipulates that the suspension of the prompt payment discount will
survive only so long as the insurance crisis continues or until the
effective date of any amendment of the State Education Law as
mentioned above at Paragraph (H) (3) (a). The BOE will have the right,
power and authority to cease the suspension of this discount when the
insurance crisis abates, as determined at the Director's sole
discretion.
(h) Contractor's Use of Revenue. The Contractor hereby agrees,
covenants and warrants that any funds which the Contractor derives
because of the suspension of the two percent (2%) prompt payment
discount will be applied only to the payment of insurance premiums and
will be used for no other purpose. Whereupon the BOE discovers that
the Contractor will have used such funds for other purposes, the
Contractor will be disqualified permanently from any future suspension
of the prompt payment discount.
(i) Limitation on Actions. If, after the BOE will have determined the
Contractor not to be entitled to further suspension of the prompt
payment discount, there arises litigation at any future time whereby
the Contractor attempts to secure the prompt payment discount
suspension in perpetuity, the Contractor consents, agrees, stipu-
44
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
lates and covenants not to use or attempt to use this document in any
manner to establish that the BOE or the City of New York must suspend
the prompt payment discount or pay any amounts thereunder to the
Contractor.
(3) Fingerprint Processing and Identification Badges. The Contractor hereby
agrees, consents and covenants that at the discretion of the Director, all
employees of the Contractor including but not limited to principals,
shareholders, stockholders, managers, dispatchers, office personnel, and
mechanics, will be subject to a fingerprint check. The Contractor also,
hereby agrees, consents and covenants that the costs to process
fingerprints, criminal background research, other documents and
identification badges for any of the above mentioned will not be borne by
the Board of Education. Whereupon OPT assumes the responsibility to process
fingerprints, criminal background research, other documents and
identification badges, the Contractor agrees and covenants to be bound by
rules and procedures prescribed by the Director whereby the BOE will defray
the associated administrative costs.
(4) Vacillation in the Number of Contract and/or Additional Vehicles during
Extension Periods. Article XIII entitled, "Increase or Decrease in the
Number of Vehicles," is henceforth amended as follows:
(a) The current Paragraph C is henceforth redesignated as Paragraph D.
A new Paragraph C is added immediately below the current Paragraph B.
The new paragraph shall reads as follows:
C. Increases and/or Decreases in the Number of Vehicles during
Extension Periods. The Board of Education and the Contractor
hereby acknowledge and stipulate that the number of vehicles
required to serve pupil transportation needs may change often
during each school year due to changes in pupil population,
default or voluntary surrender of a Contract or changes in policy
or directives adopted by the BOE, the City of New York, the State
Department and/or Financial Control Board, over the term of an
Extension Agreement.
"If the Director eliminates any vehicle(s) from the number
originally awarded to the Contractor and later offers again a
vehicle(s) of the same type(s)
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
and geographical service area(s) due to any resumed need, the
Contractor shall be entitled to restoration up to and including
the number of vehicles of the same type(s) and geographical
service area(s) originally awarded pursuant to the procedures
specified above in Paragraph B.
"The Director shall offer any 'additional' vehicle(s) first to
the contractor with the lowest 'current' weighted average daily
rate per vehicle and the daily rate per escort in the relevant
contractual item, pursuant to the procedures specified above in
Paragraph B. Additional vehicles will be offered first to the
Contractor will the lowest current daily weighted average plus
the daily rate per escort. The ranking will include both those
Contractors who are under an extension agreement and those
Contractors who are under the terms of Contracts for similar
work.
"The term "lowest weighted average daily rate per vehicle," plus
the daily rate per escort, which is used to determine the order
in which contractors are affected by both the decrease provisions
of Paragraph A and the increase provisions of Paragraph B
concerning both original vehicles and all additional vehicles,
shall reflect the current rates paid by the Board of Education at
the time of an offer.
(5) Pending Litigation. (a) Pertaining only to contracts under Serial Nos.
0070, 8108, G8805, G8891, and G9325, the contractor does hereby acknowledge
that he/she is fully aware and apprised of pending litigation cases
concerning cost justification which have been consolidated under the
caption of A.C. Transportation. Inc., et. al., v. Board of Education of
City of New York. et al., Index No. 30841/92 (5. Ct. New York County) (the
"litigation"). Subject to the final judicial disposition or settlement of
the litigation, the Contractor does hereby consent, agree and covenant that
the daily rate(s) per vehicle to be paid by the BOE to the Contractor
during the period of the 1995-2000 Extension and Amendment Agreement shall
be the daily rate(s) per vehicle approved by the BOE Office of Auditor
General and as first decreased and thereafter augmented each Extension Year
pursuant to provisions contained herein (the "OAG Rate"), unless the
Contractor shall make a written request to the Director to
46
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
be paid the daily rate(s) per vehicle based on such rate(s) paid during the
Eleventh Extension Year, as augmented during the Twelfth and Thirteenth
Extension Years, decreased during the Fourteenth Extension Year, and
thereafter augmented during the Fifteenth, Sixteenth, Seventeenth and
Eighteenth Extension Years pursuant to provisions contained herein (the
"Contractor's Rate").
(b) To be effective, the Contractor's written request to be paid at a
higher daily rate(s) per vehicle must state that the Contractor does
consent, agree and covenant to be bound by the terms and conditions of
any settlement(s) or final judicial disposition(s) in these pending
litigation cases. To be effective, the Contractor's written request
must also state that the Contractor shall provide collateral annually
in a form and amount acceptable to the BOE Office of Auditor General
sufficient to secure the difference(s) each Extension Year between the
OAG Rate and the Contractor's Rate (the "Annual Rate Difference"),
i.e., the difference(s) between the daily rate(s) per vehicle in fact
paid during the Eleventh Extension Year, as augmented during the
Twelfth and Thirteenth Extension Years, decreased during the
Fourteenth, and augmented during the Fifteenth, Sixteenth, Seventeenth
and Eighteenth Extension Years pursuant to provisions contained
herein, and such daily rate(s) per vehicle for which has been or shall
have been determined to be appropriate by the BOE Office of Auditor
General for the Twelfth and Thirteenth Extension Years, decreased
during the Fourteenth Extension Years, and augmented during the
Fifteenth, Sixteenth, Seventeenth and Eighteenth Extension Years
pursuant to provisions contained herein.
(c) The BOE shall be required to surrender or release such collateral
to the Contractor only on the following conditions: (i) upon the
settlement(s) or final judicial disposition(s) of the said litigation
cases and upon the Contractor's payment to the BOE of any amounts
agreed or determined to be due and owing from the Contractor to the
BOE; and, (ii) if and to the extent that a higher daily rate(s) per
vehicle than that approved by the BOE Office of Auditor General is
sustained upon a final judicial disposition(s) of the litigation.
(d) The following forms of collateral are deemed to be acceptable: (i)
if the BOE withheld retainage as perfor-
47
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
xxxxx security from the Contractor during the Thirteenth Extension
Year and the estimated cumulative performance security retainage
amounts for the Fourteenth, Fifteenth, Sixteenth, Seventeenth and
Eighteenth Extension Years are equal to or greater than the minimum
collateral amounts estimated by the BOE Office of Auditor General for
the Fourteenth, Fifteenth, Sixteenth and Seventhteenth and Eighteenth
Extension Years, the Contractor may use such retainage for the
Fourteenth, Fifteenth, Sixteenth, Seventeenth and Eighteenth Extension
Years as collateral, provided the Contractor furnishes a written
agreement each year to the Director that such retainage shall be
pledged as collateral against any rate reduction(s) and overpayment
recovery by the BOE; (ii) if the Contractor's monthly service payments
plus performance security retainage for the Fourteenth, Fifteenth,
Sixteenth, Seventeenth and Eighteenth Extension Years are equal to or
greater than the minimum collateral amounts estimated by the BOE
Office of Auditor General for Fourteenth, Fifteenth, Sixteenth,
Seventeenth and Eighteenth Extension Years, the Contractor shall
provide to the Director a written agreement to receive monthly service
payments on or about the twenty-fifth (25th) day following each month
of service with no surrender by the BOE of the Two Percent (2%) Prompt
Payment Discount if payment shall be delayed by more than thirty (30)
days after the BOE's receipt of each monthly invoice, as provided in
Article V of the Contract; (iii) the Contractor shall provide a
confirmed irrevocable Letter of Credit from an acceptable financial
institution for the benefit of the BOE, renewed annually, in an amount
minimally equal to the collateral deemed necessary by the BOE Office
of the Auditor General; (iv) a surety payment bond on which the BOE
shall appear as the insured, issued by an insurer licensed to do
business in the State of New York, renewed annually, in an amount
minimally equal to the collateral deemed necessary by the BOE Office
of Auditor General; (v) the Contractor shall furnish title vested in
the BOE to a frozen bank account to be held by the BOE in escrow in an
amount minimally equal to the collateral deemed necessary by the BOE
Office of Auditor General; or, (vi) in the event that the Contractor
does not elect one of the foregoing forms of collateral provided for
in this subparagraph (d), the Contractor's daily rate(s) per vehicle
shall be reduced to a level(s) approved by the BOE Office of the
Auditor General, the disputed difference(s) shall be held by the BOE
in escrow for the
48
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
Contractor in an interest bearing account maintained by the
Comptroller of the City of New York pending the outcome of the
litigation, and such amount shall be payable to the Contractor in
accordance with subparagraph (c) hereof.
(e) If the Contractor elects under Article (G), Paragraph (5) (d) (vi)
above to receive the reduced daily rate(s) per vehicle during the
1995-96 Extension Year, then the amount to be escrowed shall be the
difference(s) between 98.5% of the higher daily rate(s) and 98.5% of
the reduced daily rate(s) per vehicle to be paid to the Contractor
during the 1995-96 Extension Year shall be 98.5% of the reduced daily
rate(s).
(f) If litigation is unresolved prior to June of the Fourteenth,
Fifteenth, Sixteenth, Seventeenth and Eighteenth Extension Years, the
BOE shall retain from the Contractor's monthly service payment(s) for
June of each Extension Year any underpayment collateral for the year
then ended, as determined by the BOE Office of Auditor General. The
BOE shall hold such retainage in escrow for the Contractor in an
interest bearing account maintained by the Comptroller of the City of
New York pending the outcome of the litigation.
(I) GENERAL MISCELLANEOUS AMENDMENTS. Any express terms, conditions and
specifications to the contrary notwithstanding, the Contract is hereby amended
as follows:
(1) Cancellation. (a) General Terms and Conditions Section 7 entitled,
"Cancellation," is amended so that the Director may seek to have the
Contractor declared by the Chancellor's Board of Review to be in default of
the Contract either as a whole or merely in one or more "items" of the
Contract, i.e., the Contract is divisible into its several "items." Upon a
finding of default, the Chancellor's Board of Review will have the right,
power and authority to terminate the whole Contract or merely one or more
contractual "items."
(b) General Terms and Conditions Section 7 entitled, "Cancellation," is
amended by the addition of a new paragraph "D" to read as follows: "In the
event of significant or repeated safety violations due to acts of
commission or omission by the Contractor or by its employees, which result
from the Contractor's failure to conduct its operations in accordance with
good practices in the pupil transportation business, the BOE
49
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
shall have the right to terminate the contract upon thirty days advance
written notice to the Contractor, unless the Contractor can establish to
the Director's reasonable satisfaction that the Contractor's record of
safety will thereafter be satisfactory in accordance with good industry
practices. For purposes of this provision, "safety violations" shall mean
significant or repeated violation of safety laws and/or regulations of the
United States Department of Transportation, the New York State Department
of Transportation, The New York City Department of Transportation, and the
BOE Office of Pupil Transportation, provided that prior to terminating this
agreement for repeated safety violations the BOE Office of Pupil
Transportation shall provide the contractor with notice and an opportunity
to cure."
(c) General Terms and Conditions Section 7 entitled, "Cancellation," is
amended by the addition of a new paragraph "E" to read as follows: "In the
event of an indictment of the Contractor, any of its principals, officers,
or management employees on the basis of acts of commission or omission
involving or affecting the provision of pupil transportation services under
any BOE pupil transportation contract(s) including, but not limited to,
acts of commission or omission which excessively increase BOE costs of
doing business, the BOE will have the right, at the Director's discretion,
either to terminate the Contract upon thirty days advance written notice to
the Contractor or to require the Contractor to obtain the employment
termination and ownership divestiture of the indicted party. Before a final
decision on either alternative disposition, the Director will afford the
Contractor a personal meeting to allow for a full, open discussion of
relevant issues."
(d) General Terms and Conditions Section 7 entitled, "Cancellation," is
amended by the addition of a new paragraph "F" to read as follows: "Nothing
herein shall otherwise limit the rights and remedies of the Director as set
forth in this contract."
(2) Standards of Professional Conduct and Performance. If the Director
promulgates new standards of professional conduct and/or minimum levels of
competency or performance for drivers and escorts, the Contractor must
ensure that all affected employees are made fully aware of, and act in full
compliance with, such new standards. In addition, the Contractor must
certify in the manner prescribed by the Director that each and
50
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
every driver, escort and other affected employee has received written
notification of such new standards.
(3) Advertising on Vehicles. (a) The Contractor hereby agrees and warrants
to cooperate fully and completely with the Board of Education regarding the
placement of advertisements on the two (2) exterior sides of all vehicles,
including all spare vehicles. The Contractor shall not be responsible for
any costs, labor or other work associated with the installation, repair,
maintenance, replacement and/or removal of advertisements or the repair
and/or maintenance of school bus vehicles in relation thereto. In addition,
the Contractor must not cause, incur or allow any costs, expenses or other
liabilities on its own part concerning anything whatsoever directly or
indirectly related to the placement, repair, maintenance and/or removal of
advertisements on school bus vehicles or the repair or maintenance of
school bus vehicles in connection with such advertisements, and the
Contractor shall not demand, nor be entitled to, any compensation from the
Board of Education for any such costs, expenses or other liabilities.
(b) The Contractor shall allow the Board or the Board's agents, employees,
contractors, subcontractors or other representatives to affix any and all
such advertisements to the Contractor's vehicles by any means the Board
selects including, but not limited to, metal and/or plastic frames and/or
direct application, adhesive decals, provided, that the BOE or its agent,
contractor and/or subcontractor shall be responsible for the cost to
restore the vehicle bodies with respect to any damage upon removal. The
Contractor shall cooperate fully to provide access to all of its vehicles
under the Contract, including spare vehicles, at such times when they are
not in use for Board transportation service including the early morning,
midday and evening hours, as the Board or the Board's agents, employees,
contractors, subcontractors or other representatives shall schedule with at
least three business days advance notice. Whereupon any advertisement or
any component part thereof becomes damaged to any extent or destroyed, for
any reason whatsoever, and/or whereupon any vehicle sustains damage or
requires repairs or maintenance due to any advertisements or any component
part thereof, the Contractor shall notify the Board or the Board's
designated agents, employees, contractors, subcontractors or other
representatives within twenty-four (24) hours by calling an "(800)"
telephone number which the Board shall supply to the Contractor. It the
Contractor is dissatisfied for any reason
51
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
with any vehicle repairs or maintenance supplied by the Board or the
Board's designated agents, employees, contractors, subcontractors or other
representatives, the Contractor shall submit any such claim or dispute in
writing to the Director of the Office of Pupil Transportation for
resolution whose decision shall be final and binding upon the Contractor,
except for administrative appeal to the Chancellor's Board of Review
pursuant to Section 8.3 of the Board of Education's Bylaws.
(c) The Contractor hereby consents, acknowledges and agrees that any and
all revenues or other consideration derived from the placement of
advertisements on the Contractor's vehicles shall be and remain forever the
sole and exclusive property of the Board of Education and not the
Contractor. The Contractor further agrees to follow in every respect any
and all rules, regulations, requirements, specifications or procedures
concerning school bus advertisements that the Board may, in its sole
discretion, promulgate in the Board's "SCHOOL BUS CONTRACTOR'S MANUAL OF
PROCEDURES AND REQUIREMENTS," as currently or hereafter updated, revised or
otherwise changed.
(4) Incorporation of More Favorable Terms. As an inducement to the
Contractor to execute this Extension and Eighth Amendment Agreement prior
to April 15, 1994, the BOE agrees that, if there are any subsequent
extension agreements with other contractors for any handicapped student
transportation originally awarded under Serial Nos. 0070, 8108, G8805,
G8891 and G9325 which contains terms more favorable to the contractors, the
BOE will agree to amend the Contract further to incorporate those same more
favorable terms.
(5) Unlawful or Unenforceable Provisions Void. Whereupon this Extension and
Eighth Amendment Agreement is found to contain any unlawful or
unenforceable provision(s) which is not essential to continued performance
or which is not material to the intent and inducement of the parties, such
provision(s) will be deemed of no effect and will, upon application of
either party, be stricken from this document without thereafter affecting
the binding force of the remainder of this Extension and Eighth Amendment
Agreement.
(6) Approval and Execution. This Extension and Eighth Amendment Agreement
will not become binding or effective upon the Board of Education until the
following series of events will have transpired: (a) approval as to form by
the BOE Office of Legal Services; (b) authorization by a resolution duly
adopted
52
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
by a vote of the Board of Education which will be deemed to be incorporated
herein; (c) execution on behalf of the Board of Education by the Chancellor
or his/her designee; (d) approval by the New York State Commissioner of
Education; (e) initial registration with Comptroller and re-registration
with the Comptroller each year thereafter; and, (f) initial approval and
subsequent annual re-approval by the New York State Financial Control Board
pursuant to the New York State Emergency Act for the City of New York, the
rules and regulations of said Board so require.
(7) Implementation of the State Education Law. This Extension and Eighth
Amendment Agreement is intended to implement the provisions of the New York
State Education Law, Section 305, Subdivision 14 and the attendant
regulations of the New York State Commissioner of Education. Whereupon
there exist any inconsistency between the Board of Education and the State
Education Department concerning this statutory provision, the attendant
regulations of the Commissioner of Education and/or any formula(e) for
reimbursement of funds, this Extension and Eighth Amendment Agreement will
be deemed amended automatically to conform to the interpretation of the
State Education Department but only for the protection of the Board of
Education's interests and only at the Board of Education's option.
(8) The Comptroller will endorse hereon during the term of this Contract
his/her certificates that there are appropriations or funds applicable
thereto sufficient to pay the estimated expense to execute and operate this
Contract during the respective fiscal periods.
(9) As used herein, the singular will include the plural and vice versa.
(10) All other provisions of the Contract as amended by the 1984 Extension
Agreement and Fourth Amendment Agreement, by the 1987 Extension Agreement
and Fifth Amendment Agreement, and the 1990 Extension and Sixth Amendment
Agreement, except those provisions herein noted and revised, will remain in
full force and effect.
(11) The Contractor does hereby consent and agree to cooperate with the BOE
concerning the elimination of the Contractor's payment of Federal, State
and local sales, excise and use taxes on purchases, leases and other
transfers which the Contractor makes, effects, causes or allows in the
performance of the Contract. The particular rules and
53
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
procedures concerning the elimination of such taxes shall be promulgated in
the Board's "SCHOOL BUS CONTRACTOR'S MANUAL OF PROCEDURES AND
REQUIREMENTS," a draft copy of which shall be circulated to the contractors
for comment before final promulgation. Such rules and procedures may
include, but are not necessarily limited to, the following: (A) the
Contractor's use of the Board's tax exempt status when making, effecting,
causing or allowing purchases, leases and other transfers in the
performance of the Contract (the Board shall furnish the Contractor with
appropriate forms and procedures), provided that the Contractor shall
remain the purchases or lessee of its vehicles, goods, commodities,
supplies, equipment and so forth; and, (B) the Contractor's cooperation
through the production of documentary evidence, as specified by the Board,
with any and all attempts by the Board to seek and obtain refunds of any
and all Federal, State and local excise, sales and use taxes which the
Contractor has paid during the applicable statutory period of limitation
for goods, fuel, commodities, services, leases, etc. in the performance of
the Contract. Whereupon the Board requires the Contractor to produce
documentary evidence in the course of any attempt by the Board to seek and
obtain such refunds of taxes, the Board shall pay the Contractor, as
consideration for such cooperation, twenty percent (20%) of any refund
amount attributable to the Contractor's purchases, leases and other
transfers, but only when and after such refund amounts are actually
received by the Board.
54
IN WITNESS WHEREOF the parties have executed this Extension Agreement and Eighth
Amendment Agreement in septuplicate the year and day below written.
For the Board For the Contractor
/s/ [ILLEGIBLE] for Amboy Bus Company, Inc.
----------------------------- -----------------------------------------
CHANCELLOR (Print full name above)
00-00 Xxxxxxxxxxxx Xxxxxx
-----------------------------------------
Xxxxxxxxx, XX 00000
-----------------------------------------
(Print address above)
BY: /s/ Xxxxxxx X. Xxxxxx BY: /s/ Xxxxxxx Xxxxx
------------------------- ---------------------------------
Approved as to Form Sec. Tres
(Sign in ink above - Print
name and title below)
Xxxxxxx Xxxxx
-------------------------------------
Sec Tres
Xxxxxxx X. Xxxxxx
-----------------------------
OFFICE OF LEGAL SERVICES
DATED: 6/19/96
Subscribed and sworn to me this 26
day of June, 1996
/s/ Xxxxxxx X. Xxxx
-----------------------------------------
Notary Public
XXXXXXX X. XXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Queens County
Commission Expires 10/31/97
55
IN WITNESS WHEREOF the parties have executed this Extension Agreement and Eighth
Amendment Agreement in septuplicate the year and day below written.
For the Board For the Contractor
/s/ [ILLEGIBLE] for Staten Island Bus Co.
----------------------------- -----------------------------------------
CHANCELLOR (Print full name above)
0 Xxxxx Xxxxxx
-----------------------------------------
Xxxxxx Xxxxxx, Xxx Xxxx 00000
-----------------------------------------
(Print address above)
BY: /s/ Xxxxxxx X. Xxxxxx BY: /s/ Xxxxxxx Xxxxx
------------------------- ---------------------------------
Approved as to Form (Sign in ink above - Print
name and title below)
Xxxxxxx Xxxxx
-------------------------------------
Sec Tres
Xxxxxxx X. Xxxxxx
-----------------------------
OFFICE OF LEGAL SERVICES
DATED June 19, 1996
Subscribed and sworn to me this 26
day of June, 1996
/s/ Xxxxxxx X. Xxxx
-----------------------------------------
Notary Public
XXXXXXX X. XXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Queens County
Commission Expires 10/31/97
55
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
APPENDIX A
Only for Contracts under Serial Nos. 0070, 8108, G8805, G8891 and G9325, where a
contractor meets conditions of eligibility may allowable cost increases accrued
during the period of the Twelfth to Fourteenth Extension Years be carried
forward "below-the-line" to supplement those cost increases which are used to
justify an augmentation of the daily rate per vehicle for the Sixteenth and
Seventeenth Extension Years. In addition, only for Contracts under Serial Nos.
0070, 8108, G8805, G8891 and G9325 where a contractor meets conditions of
eligibility may allowable cost increases accrued the during the period of
Fifteenth to Sixteenth Extension Years be carried forward "below-the-line" to
supplement those cost increases which are used to justify an augmentation of the
daily rate per vehicle for the Seventeenth Extension Year. To be eligible to
carry forward such cost increases, a contractor must provide annually a cost
increase comparison between the Twelfth and Fourteenth Extension Years and the
Fifteenth and Sixteenth Extension Years (when appropriate that identifies all
items of cost increase and, separately, the percentage of cost increase if any,
to be carried forward and applied to a given subsequent base year. The base year
is the year immediately preceding the given subsequent extension year to which
the cost increases from the Twelfth to Fourteenth Extension Years and/or the
Fifteenth to Sixteenth Extension Years are to be applied. The Board's Auditor
General may prescribe additional eligibility conditions as deemed appropriate in
his/her sole discretion. The term "below-the-line" is defined to mean that cost
increases from the periods of the Twelfth to Fourteenth and Fifteenth to
Sixteenth Extension Years, which are carried forward, are deemed as allocated to
the period of accrual, i.e., the Twelfth to Fourteenth and Fifteenth to
Sixteenth Extension Years, respectively, and not to the subsequent extension
year(s) to which they are carried forward and applied both supplementally and
"below-the-line" as prior cost increases that have not as yet been absorbed by
the lesser of an annual Consumer Price Index increment or a fixed annual rate
augmentation cap. Once a cost increase item accrued during the Twelfth to
Fourteenth or Fifteenth to Sixteenth Extension Years has been carried forward
and applied "below-the-line" to a given base year, it may not be used again in
any later base year.
i
EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
Appendix B
(1) Eligibility for Discount Suspension. For contracts under Serial Nos. 0070,
8108, G8805, G8891 and G9325 to be eligible for a suspension of the two percent
(2%) prompt payment discount, to which the BOE is otherwise entitled under the
provisions of the Contract, the Contractor must demonstrate in an annual
"Vehicle Insurance Rate Increase Claim Statement" that increases of insurance
premium rates have created unreasonable financial burdens. Each annual "Vehicle
Insurance Rate Increase Claim Statement" will be subject to approval at the sole
discretion of the Director in consultation with the BOE Office of Auditor
General. Eligibility for vehicle insurance also rests on the Contractor's
showing that the insurance premiums which reflect annual increases are
sufficient to provide minimum levels of coverage required pursuant to the BOE
Resolution of September 6, 1985, as amended, and the Contract, as amended. The
extent of the discount suspension, if any, is governed by the provisions
immediately below at Paragraphs (L) (2) and (3).
(2) The term "Vehicle Insurance Rate Increase Claim Statement" is defined as a
written accountant's review report prepared by an independent Certified Public
Accountant ("CPA") or Public Accountant ("PA") licensed by the State of New
York. Each such review report must state (a) that a review was performed in
accordance with the standards of the American Institute of Certified Public
Accountants ("AICPA"), (b) that the information and data contained in the
"Vehicle Insurance Rate Increase Claim Statement" are the representations of the
Contractors management, and (c) that it describes the nature of the review as
distinct from an audit. Each such review report must furnish at least the
limited assurance that, based upon the review, the CPA/PA is not aware of any
material modifications that should be made to the "Vehicle Insurance Rate
Increase Claim Statement" in order for it to conform to the AICPA's generally
accepted accounting principles. Contractor's who have not had a CPA audited
report performed for tax, securities or other operation-wide purpose within two
(2) years of the commencement date of this Extension and Amendment Agreement
must submit a certified and audited "Vehicle Insurance Rate Increase Claim
Statement" prepared by an independent CPA for the 1995-96 Extension Year.
Furthermore, the CPA or PA who prepares each "Vehicle Insurance Rate Increase
Claim Statement" and each review report must state that he/she has studied the
cost justification manual supplied by the BOE and has applied the standards
contained therein for
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
the development of the "Vehicle Insurance Rate Increase Claim Statement." Still
further, the CPA or PA must have no interest in this Contract, the Contractor or
any of the Contractor's parent, subsidiary or other affiliated entities and must
so certify in writing. The "Vehicle Insurance Rate Increase Claim Statement"
shall utilize form prescribed by the Director as approved by the State Education
Department.
(3) Documentation of Vehicle Insurance Rate Increases. The Contractor must
submit a copy of the full insurance policy and a copy of all invoices from the
insurance carrier(s) noting the full amount of premiums which are the subject of
any claims. During the 1995-96 and 1996-97 Extension Years, the base year for
the vehicle insurance calculation is January 1, 1991, through December 31, 1991.
During the 1997-98, 1998-99 and 1999-2000 Extension Years, the base year for the
vehicle insurance calculation is January 1, 1994, through December 31, 1994.
(a) During the Fourteenth Extension Year, the Contractor must show the
difference between all premiums paid for required coverage for the
period from January 1, 1995 through December 31, 1995 and the amount
paid for such coverage for the period from January 1, 1994 through
December 31, 1994. For a complete suspension of the discount, the
difference between the two (2) years must be equal to or greater than
the value of the two percent (2%) discount for each year as adjusted
by the annual percentage of increase provided above in Paragraph (B)
of this Extension Agreement and as calculated on a monthly basis at
the coverage levels prescribed by the BOE during the balance of the
contract period. To the extent that the difference is between zero
percent (0%) to two percent (2%), there will be a proportionate
reduction in the suspension of the discount.
(b) During the Fifteenth Extension Year, the Contractor must show the
difference between all premiums paid for required coverage for the
period from January 1, 1996 through December 31, 1996 and the amount
paid for such coverage for the period from January 1, 1994 through
December 31, 1994. For a complete suspension of the discount, the
difference between the two (2) years must be equal to or greater than
the value of the two percent (2%)
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
discount for each year as adjusted by the annual percentage of
increase provided above in Paragraph (B) of this Extension Agreement
and as calculated on a monthly basis at the coverage levels prescribed
by the BOE during the balance of the contract period. To the extent
that the difference is between zero percent (0%) to two percent (2%),
there will be a proportionate reduction in the suspension of the
discount.
(c) During the Sixteenth Extension Year, the Contractor must show the
difference between all premiums paid for required coverage for the
period from January 1, 1997 through December 31, 1997 and the amount
paid for such coverage for the period from January 1, 1994 through
December 31, 1994. For a complete suspension of the discount, the
difference between the two (2) years must be equal to or greater than
the value of the two percent (2%) discount for each year as adjusted
by the annual percentage of increase provided above in Paragraph (B)
of this Extension Agreement and as calculated on a monthly basis at
the coverage levels prescribed by the BOE during the balance of the
contract period. To the extent that the difference is between zero
percent (0%) to two percent (2%), there will be a proportionate
reduction in the suspension of the discount.
(d) During the Seventeenth Extension Year, the Contractor must show
the difference between all premiums paid for required coverage for the
period from January 1, 1998 through December 31, 1998 and the amount
paid for such coverage for the period from January 1, 1994 through
December 31, 1994. For a complete suspension of the discount, the
difference between the two (2) years must be equal to or greater than
the value of the two percent (2%) discount for each year as adjusted
by the annual percentage of increase provided above in Paragraph (B)
of this Extension Agreement and as calculated on a monthly basis at
the coverage levels prescribed by the BOE during the balance of the
contract period. To the extent that the difference is between zero
percent (0%) to two percent (2%), there will be a proportionate
reduction in the suspension of the discount.
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EXTENSION AND EIGHTH AMENDMENT OF CONTRACT
FOR SPECIAL EDUCATION PUPIL TRANSPORTATION SERVICES
(e) During the Eighteenth Extension Year, the Contractor must show the
difference between all premiums paid for required coverage for the
period from January 1, 1999 through December 31, 1999 and the amount
paid for such coverage for the period from January 1, 1994 through
December 31, 1994. For a complete suspension of the discount, the
difference between the two (2) years must be equal to or greater than
the value of the two percent (2%) discount for each year as adjusted
by the annual percentage of increase provided above in Paragraph (B)
of this Extension Agreement and as calculated on a monthly basis at
the coverage levels prescribed by the BOE during the balance of the
contract period. To the extent that the difference is between zero
percent (0%) to two percent (2%), there will be a proportionate
reduction in the suspension of the discount.
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