EXHIBIT 10.25
AREQUIREMENTSAGREEMENTWITHELIGIBLEINDEPENDENTPROVIDERS/ AGENCIES FORTHEPROVISIONOFRELATEDSERVICESTOSTUDENTSWITHDISABILITIES
ARequirementsAgreement enteredintoasof thefirst dayof September2010by and between theBOARDOF EDUCATION OFTHECITY OFSCHOOL DISTRICT OFTHE CITY OF NEWYORK(hereinafter, referred to asthe'Board', BOE orDOE),with principal officeslocatedat52 ChambersStreet, New York, New York10007 andSignatureLearning Resources, Inc. (hereinafter, referred toasthe'Contractor"), withofficeslocated at19 West21stStreet• Suite701 New York, New York10010.
WITNESSETH
WHEREAS,in order to fulfill the mandates of students with IndividualizedEducation Programs ("IEPs'), when DOE personnel and/or agencies under contract with the DOE are unable to serve these students, the DOE allows parents to obtain the service froman independent service provider at no costto the parent; and
WHEREAS,the Board has identified the Contractor as an independent related service provider or agency whoseanticipatedpayments are expected to exceedOne HundredThousand ($100,000.00) Dollars per annum;and
WHEREAS,the Chancellor by a Request for Authorization authorized this Requirements Agreement with the Contractor for the periodSeptember 1,2010 through August 31, 2012 subject to availability of funds for eachfiscal year, which Request for Authorization is hereby incorporated inthis Agreement, and affixedhereto asAttachment A;and,
WHEREAS,the Contractor represents thatitis ready, willing and abletoperform allof the services hereindescribed.
NOW, THEREFORE,in consideration of the foregoing stipulationsand the terms, conditions and specifications expressed below, the Boardandthe Contractoragree andcovenantasfollows:
1. TERMOF AGREEMENT
A. The Term of this Requirements Agreement(hereinafter, referredto as the "Term") shallcommence onSeptember 1,2010and extend through August31, 2012,unless earlierterminated pursuant totheprovisionsofthis Agreement.
B. This Agreement maybe terminatedat any time upon fifteen(15)days prior written notice fromthe Chancellor orhis/her designee. Noclaim for damages willbemade byorallowed to the Contractor because ofsaid termination.
2. ESTIMATED CONTRACT AMOUNT
Theestimatedannual costforservices renderedpursuantto thisAgreementis aslisted on the RA(Attachment A).
3. SERVICES UNDER THIS AGREEMENT
Hereinafter,the term"Services"shallbedeemed to describe collectivelyallof theservices, that the Contractorfurnishesto the Boardand/or to anyof its students, their parent(s) or guardian(s). The Contractor shall provide the Services expressedinAttachment A,as required by the Individualized Education Program ("IEP") for each student, and in accordance with the individualRelatedServices Authorization("RSA") form signed byeach parent and approved by theBoard (or execution ofthePre-KRelated Services Agreement, as applicable). Furthermore, notwithstanding any language or provision(s) in any Attachmentstothecontrary,thefollowingtermsandconditionsshall govern the Contractor's performanceofServices under this Agreement:
(A) This is a non-exclusiveRequirements Agreementfor the procurement of such professional services as may be required by the Board. The Board shall not be obligated or limited in any manner or toany extent to assign any minimum or maximum number ofrelated services sessions asapplicableto theContractor. This Agreement is effective upon the approval by the Board of a completed Related ServicesAuthorization(RSA)formvalidlyexecuted bytheparentand theContractor (and theindividual provider ofContractor isan agency).
{B) TheBoard will utilize theServices oftheContractor only after thecontracted Service Provider for that service sector is unable to provide the Services under the aforementioned awarded contract.
(C) The Contractor shallcomply withany and allpolicies andprocedures oftheBoard's Office of Special Education Initiatives, as specified by the Chancellor or his designee(s).
(D) The Contractor shall permit the Chancellor and/orhis/her designee(s) to conduct periodic monitoring ofall aspects ofthe Services performed under this Requirements Agreement. Suchmonitoring mayinclude, without limitation,on-site visits, inspections oftheContractorandits servicerecords, andobservations ofthe Contractor's staff while performing any and all of the Servicesunder this Requirements Agreement.
(E) TheContractorshall:
{i) Serve thestudent in accordance with therecommendationprescribed on the Individualized Education Program (i.e., language, frequency, duration and group size).
(ii) Complete first attend information and immediatelyforwardit to the appropriate office designated bytheBoard toreceivesuchinformation.
(iii)The rateto becharged for each service shall be thelesserof(a) the ratefor the servicelistedonAttachment A;or (b) the lowestratechargedby the Contractorto other clientsfor the servicein question in the same district. However, in the case where theContractor has acontract withtheDOEto provide related services, in no event shall the rate charged for a particularrelated service under this Agreement exceed thehighestrate charged bytheContractor for that related service through its existingDOE contract.
(iv) Make no requests to the parent/guardianor student for payments for services provided.
(v) Submitbills directly tothe Boardof Education, andtothe attention ofthe office designatedby the Boardto receive the bills, using the format designated by the Board.
(vi) Maintainweekly studentspecific progress notesand submit them to the appropriate Committee on PreschoolSpecialEducation (CPSE) or Committee on School Age Education (CSE) within the timeframe requiredbytheBoard.
(viii) Participate in Individualized Education Program conferences and parent/guardian meetingswhen requestedat noadditional cost to theBoard.
(ix)Participatein Board conferences/workshops when requestedat no additional costto theBoard.
(x) Maintainand submit Related Service Attendance informationin the form and manner required by theBoard; in addition, prepare or participate inthe preparation of reports,documentsand/orin the collection ofdata orinformationrequested by the Boardor other agencies, atno additionalcost to the Board, in orderthatthe Board receive Medicaid reimbursement for the costs associated with theprovision of related services. Eachindividual providing service tothe student must have a National Provider Identifier (NPI) number entered in the appropriatefield on the electronicinvoice. Failure to includethe NPInumber of the direct serviceprovider mayresult in non-payment.
(xi) For preschoolstudents contact the appropriate CPSE if the related service provider is notifiedor becomesaware of a changein the student's name, address, etc.,orifthe provider is made awareofthe parent/guardian'sintenttowithdraw the student from the CPSE recommendedservice. The providermust complete the StudentInformation (T-2P)Notice and submit ittothestudent's current CPSE.
(xii) For preschool students if an approvedstudent (who has been referred to a relatedservice provider and who hasnot yet established a first attend date) is unavailableto receive services within five (5) days from the student's first eligible date,theprovidershall contact the parentto ascertain the reason for thedelay. If the provideris unable to ascertainthe reason for the absencethe providermust promptly complete and forward the T-2P form totheCPSE.
(xiii) For preschool students, contactthe appropriate CPSEif thestudentis absent five (5)consecutivesessions without alegal excuse.
(xiv)For preschoolstudents,contacttheappropriateCPSEif the location where the related services will be provided changes from the initial location. A new IEP conference is not required; however, theprovider may change the location only with the knowledgeand consent of the parent/ guardian. The provider must notifythe CPSE ofthe new locationwithinfive(5)school days ofthischange.
(xv) AnyService Providercurrentlyundercontract to provide relatedservices to the Board may not provide related services as an independent provider in Integrated Service Center(s)/district(s) forwhich ithasbeen awarded aseparate contract.
(xvi) Unless· a waiver has been obtained,the service provider that conducted the student's evaluation may not be selected to provide the related service to the student.
(F) Any individual who leaves the employ of the Board or any other New York City agency may not provide service relatedservicesas anindependentprovider under the independent provider agreements for a minimum ofone year following the termination of employment, in accordancewiththe provisions of the New YorkCity CharterChapter 68and Chancellor's Regulation C-110, unless a waiverisobtained.
(G) Any individual currentlyemployed by the Boardmay not providerelatedservicesas an independent provider unless otherwise approved by the Board in writing in compliancewithallgoverning Board rulesand regulations.
4. PAYMENT TERMS AND CONDITIONS
If the Contractor well and faithfully provides the Services in compliance with the terms, conditions and specifications of this Requirements Agreement,the Board shall paythe Contractor the unitcharge(s) asstatedin paragraph3(E)(iii). The Contractor shall be paid only for those units of services requested by the Board and providedby the Contractor. Accordingly, the Contractor shall not be entitled to receive, nor shallit make any demand for, any additional payment(s). Any provision(s)intheAttachments tothe contrary notwithstanding, theBoard shall makeallpayments tothe Contractorfor Services under this Agreement according tothe termsand conditions of thisparagraph 4 bothas aboveand as follows:
(A) The Contractor shallsubmit monthly invoice(s) to the Board for the Services rendered. TheContractor shall state clearly on each invoice allServices performed, and shall certify on each invoice(s)that theServices for therequested payment have been performed fully in compliance with this Requirements Agreement.Contractor shallbe responsible for obtaining the signature of the parent or guardian and if required the school administratorverifying that services have been rendered satisfactorilyby theContractor.
(B) Contractor shall not provide any Servicesprior to the approval of a completed Related Services Authorization Form validly executed by the parent and the Contractor (andindividual provider if theContractor is an agency). These formsshall not be issued in excess oftheappropriations then available therefore,andif issued through inadvertence or otherwise,shall be deemednullandvoidandutterly invalid. The Board shall havenoliability forpaymentofsame.
(C) During the TermofthisAgreementand anyrenewal period, or extensionthereof, the Contractorshallmaintain anaccuraterunning total of the dollar amountof allorders forservices;
(D) The Contractorshallnot increasethe price of any services during the Term of this Agreement, any renewal period, or extension thereof.
(i) If at any timetheContractor shall reducethe price of any service, the Boardshallbe entitled to such reduced price as of theeffective date of such reduction. The Contractor shall immediatelynotify the Board of such reduction, and upon receipt of such notice, this Agreement (specifically,Attachment A)shall be deemed amended to reflectsuch pricereduction retroactivelyto the effectivedate of the reduction.
(ii) Anyamountspaid the ContractorforProgram servicesafter the effective date of the price reduction, that were paid through inadvertence or otherwise at thepricethat was in effect beforethe effective date of the price reduction, shallbe returnedor refunded to the Board. The Board may,at its option,choose to recoupsuch amountsfrom any other payments due the Contractor underthis Agreement, or any other agreement, written or otherwise, between the Contractor andtheBoard. The obligation of theContractor to return or refundsuch amounts shall remain an obligation of the Contractor and/or its successors or assigns, thatsurvivestheterminationofthis Agreement.
(iii) The Contractor'sfailure to provideanynoticespecified inthis paragraph, or perform any of theterms or conditions stated in this paragraph (D), shall bedeemed tobe amaterial breach ofthisAgreement.
(E) No invoice shall beapproved by the Board until the Servicesdescribed therein shall havebeen received andfoundsatisfactory.Contractor's invoices shallbe supported by contemporaneously kept time records, pay vouchers and othersupporting documents as required. Contractor shall certify on all invoices the days and the hours worked by the individual provider. The Board will process invoices with all deliberatespeed and will use its best effortsto insure prompt payment withinsixty (60) days. Allbooks, records,bills,reports or materialsdeemednecessaryby the Boardto substantiatethe validityofclaimsfor compensationshall bemade available forreview.
(F) If the Contractorfails or refuses to provide reasonable evidence to support any charge(s)for which it requests payment, theBoardshall notberequired topaysuch charge(s).If such charge(s), or any part thereof, shall havebeen previouslypaid, theContractor shall immediately refund the full, appropriate amount uponthe Board'srequest.
(G) No expenses shall be incurred under this Agreement which are not ordinary, necessary and reasonable or which are contrary to law, public policy or Board policy.
(H) This Agreement and all consideration hereunder are subjecttopre-audit, contemporaneous auditand post-auditby the Board,the Comptroller of the City of New York(Comptroller"),and anydesignee(s) of the Board. Noauditby theBoard orits designee(s)shall be binding on the Comptroller.
(I) The Contractorshall maintain and retain for six (6) years fromterminationof this RequirementsAgreement, adequate time, payroll,personneland expense records relatingto the Services, and such other tapes,records, cards,invoices, papers and things as are necessary to assure properaccounting andauditof thefundspayable hereunder. The Contractorshall make said items availablefor inspection by the Board, theComptroller, or their designees,upon demand.
5. REPORTING REQUIREMENTS
The Contractor shall comply fully with all requestsby the Board for both fiscal and programmatic reports,and, without limitation, and all other types of reports,information, data, and so forthin such formats and frequency as determined by the Chancellor or his designee(s).
6. INSURANCE
A. The Contractor shallobtainallrequired coveragefrom insurers licensed by the New York StateSuperintendentofInsurance to dobusinessinNewYorkStatehaving aratingof at least "A-" (Excellent) and a financial rating of "X", as rated by the most recent Best's Insurance Rating Guide. Notlater than thirty (30) days after the dateof executionof this Agreement, the Contractor shall submit to the Board evidence of the insurance coverage hereindescribed. The Contractor shallarrange with its carrierto havethe Boardandthe City of New York appear as an additional insureds on each policy and Certificate of Insurance for allrequired coverage.The Contractor shall send acopy of each insurance policyor insurance certificatetothe Board ofEducation, Vendor Resources Unit,65 Court Street, 12thFloor, Brooklyn, NY11201. The Board's receiptof policiesorcertificate(s) shall be acondition precedent to payment by the Board under this Agreement.Furthermore the Contractor shall transmit an informational copyofthis Agreement to itsinsurance carrier(s) together with a cover letter(s), the cover letter(s)shall identify the Contractor's insurance policy(ies) and/or account number(s), thatalerts and informs the carrier(s) of the existence of thisAgreement andthe particularinsurance provisions containedherein. The Contractor shall obtain:
(i)Commercial General Liability Insurance coverageforbodilyinjury,(including but not limited to death, sickness disease and impairment),property damage and personal injury,causedeither, directly orindirectly by any act(s) of commission or omission, negligent or otherwiseofthe Contractor or the Contractor's agents, servants, employees, officers, owners, directors,partners,subcontractors or any other representatives. The liability limit under this commercialgeneralliability insurancecoverage shall be in an amount not less thanTwo MillionDollars ($2,000,000.00) peroccurrence. Anygeneral aggregate limitshall applyseparately to each premisesat whichContractor'soperationsare performed. Coverage onan occurrence basis ispreferred.
(ii)Workers' Compensation Insuranceas prescribed by applicable law, andEmployers LiabilityInsurance with coverage of not less than One Million Dollars ($1,000,000.00) for each accident, and each employee fordisease;
(iii) (Note: This maybe waivedif individual provideris notusing a motorvehicle to travel tothe students.)Motor Vehicle Liability Insurance and shall insure the Contractor, its employeesand agents,the Board, and the Cityof New York, during theperformanceofwork under this Agreement, againstall present andfuture claims for bodily injury, sickness, disease, death, and property damage as shall arise because of amotor vehicle accident. Thelimit of liability shall beat least One Million Dollars($1,000,000.00) eachaccident forbodilyinjury andproperty damage. Such damages shallinclude allinjurytoor destructionof propertyof such claimant(s), as well asthe loss of use occasioned bytheaccident;
(iv) (Note: This may be waived if the Contractor and Individual provider do not provide services on Boardpremises.)Property Loss Insurance in the minimum amount of Fifty Thousand Dollars ($50,000.00) per occurrence protecting the supplies,equipmentandproperty,etc.,of the Board against "All Risks" of loss, which include,but arenot limited to, fire, lightning,windstorm,hail, riot, civil commotion, vandalism, malicious mischief, burglary, theft, floods, earthquakes,hurricanes, tornadoesandother perils, including mysterious disappearance while supplies,etc., are in the possession, controlor responsibility of the Contractor, subcontractor or anyone directly or indirectly employed byeither of them; and
(v)Professional Malpractice Liability Insurancecoveragein anamount not less than Two Million Dollars ($2,000,000.00) each claim and aggregatefor any injury or damage that is inany way connectedwith or related tothis Agreement.
(B) The Contractor's insurance policy(ies) must be endorsed to allowseverability of interest and rights of cross-claim. Insurancecoverage in the amount provided for herein shallnot constitute a limitof the Contractor's liability andshall not relieve the Contractor forany liability thatmight exceedsuch amounts,nor shall the Board orthe City beprecluded from takingsuchother actions asare available to the Boardorthe Cityunderany other provisions of thisAgreementor otherwise.
(C) TheContractor shall notobtain or use any insurance policy(ies) orcontract(s)for purposes of this Agreement that contains any endorsedexclusions relating to the additional insured's negligence, relating to themaintenance, useand operationofthe additional insured's realty or personalty,or relating to any other activitiesby the additional insured that arise from, or in thecontext of, this Agreement.
(D) The Contractorshall maintainthe levels of insurancecoverageprescribed hereinabove throughoutthe Term includingbut not limited to, original,additional, renewal andextensionperiods
(E) RequiredProvisions. TheContractor shall ensurethateverypolicy for allof the insurance coverage required pursuant to this Agreementshall contain the following provisions via anendorsementattached to every suchpolicy: (i) Any andallnotices that the insurer(s) shallprovide to the Board shall be addressedto the Chancellor or his/her designee(s)at the address stated above; (ii) The Contractor's insurance policy(ies) or contract(s) shall not be terminated, revised, modified or otherwise changed in such a manner as to reduce or limit the Contractor's coverage for any services under this Agreementin any way, unless the affectedinsurer(s) shall have provided at least thirty (30) days advance written notice to the Chancellor or his/her designee(s) regardingsuchtermination, revision,modification or other change. If an insurer(s) notifies the Board of the termination of any required coverage, the Contractorshall provide writtenevidence,e.g., a new certificate of insurance, before the effective date contained in suchnotice(s) thatthe affectedinsurance coverage has beenfullyreplaced. If aninsurer(s) notifiestheBoard of any non-terminationrevision, modification or other change that causes the Contractor's insurancecoverageto be out of compliancewith the requirementsofthis Agreement, the Contractorshallcure suchnon-compliancebeforethe effective date contained insuch notice(s).
(F) If professionalor commercialgeneralliability insurance has been issued on a "Claims made"basis, theContractor must comply with the following additional conditions. TheContractormust either: (i) Provide certificates ofinsuranceevidencing the above coverages for a period of two years after final payment for the contract Such certificates shallevidencea retroactivedate, no laterthan the beginning of the Contractor'swork under this contract, or (ii) Purchase an extended (minimum two years) reportingperiodendorsementfor the policy or policies inforce duringtheterm of this contract and evidence the purchase of this extended reporting period endorsement by means of a certificate of insurance or a copy of the endorsement itself.
(G) Any deductiblesor retentions shall be disclosedby the Contractor and each subcontractor and shall be subject to advance written approval by the Chancellor or his/herdesignee(s). Anydeductible or retention amountselectedby theContractor or imposed by the Contractor'sand/or any Subcontractor's insurer(s) shall be the sole responsibilityof theContractor and/or the affected subcontractor.
(H) If theContractor and/or any subcontractor donotmeet this Agreement's insurance requirements,theContractor shall forwarda written request to the Chancellor's designee forawaiver inwriting of theinsurance requirement(s) not met,orapproval in writing of alternate insurance coverage, self-insurance, or group self-insurance arrangements.IftheChancellor'sdesigneeshalldeny therequest, theContractorand each affectedSubcontractor must complywith this Agreement's specifiedinsurance requirements.
7. INDEMNIFICATION
The Contractor shalldefend, indemnify andholdharmlessthe Boardand the City of New Yorkfor all claims,damages or otherliabilities arising from any act(s) of commissionor omission, negligent or otherwise, by the Contractor and/or the Contractor'semployees, agents, servants, officers, directors, owners, partners, subcontractors or any other representatives.
8. SECURITY CLEARANCE
A. All Contractor staff arerequired to undergo the Board's SecurityClearance Procedures andmust be clearedtowork withStudents by the DesignatedSecurityClearance Officepriorto commencing services with direct contact with Students or having access to confidential student information. Thisobligation applies regardless ofwhether an individual has been fingerprinted by another agency, (e.g., NYC Department of Investigations oraprivate security firm). If a staff member hasbeen fingerprintedbythe Board afterJuly1, 1990, pursuant to anyAgreement withthe Board, the Staff member does nothave tobe reprinted.
B. Contractorshall grantthe Board accessto allStaff members'personnel records upon request, unless otherwise prohibitedbylaw, forthepurposeofconducting a background check and monitoringcompliance with Security ClearanceProcedures.
C. The ExecutiveDirector of the Divisionof Human Resources ("DHR") for the Board or his/her designeesshall determine,onan ongoingbasis,whether andtowhatextent any Staff shall be ineligible to provide services underthis Agreement for securityreasons. The Boardshall have the right to require the removal of anyStaffwhois the subjectof an investigationby DHR pending a final determination. In the event the Executive Director or his/her designees determine that Staff is ineligible,the Contractor does hereby consentand agree toabide by the following:
(1) TheBoardWill notify theContractor andtheindividual ofthespecificgroundsforthe decision and will afford the individual and/or Contractor an opportunitytopresent information on his/her/itsownbehalf; and,
(2) Immediately upon notification, the Contractor shall remove and bar the affected individual and/or entity from providing any services in furtheranceof this Agreement, unless and until the decisionisreversed ormodified; and,
(3) Immediately upon notification, theContractor shall assign another Staff memberto fulfill the duties andresponsibilitiesof theremovedindividual and/or entity in connection with theperformance of this Agreement, unless and until the decisionis reversed or modified.
(4) Contractor shall make nodemand for, norbe entitled to receive, any additional compensationforcostsarising from the debarmentof anyone ormore of its Staff.
D. The Contractoragrees not to hire orretainanyperson as a Staff member forpurposes of this Agreement who is requiredto undergo Security ClearanceProcedures andwho refusesto grant authorization for fingerprinting or criminalrecord review;whohas not completely andtruthfully reported informationconcerning his/her criminalconvictions; or who has a criminal conviction record, subject to and consistent with Article 23-A of the NewYorkStateCorrectionLaw.
E. Contractorisrequired toadvise itsStaff to notify Contractorintheeventthat anyStaff is arrested and charged witha felony, misdemeanor orviolationinany jurisdiction. Thereafter, Contractor shall:
(1) notify the Board'sOffice ofPersonnel Investigation,in writing, by facsimile, at (718) 935-2726, orbyhanddelivery to65Court Street, Room102,Brooklyn, New York Within twenty-four hours of discovering such arrest; and
(2) submita copy of(a) the criminal complaint,(b)a court orderordispositionresolving the case and (c) any other documents deemed necessary by the Designated Security ClearanceOffice.
F. Contractorshall be responsible to pay for allfingerprinting costsat the time of fingerprinting.
G. Any waiver ofthe Security Clearance Proceduresset forth hereinor approval required hereundershall not beeffective unlessinwriting bytheChancellor orhisdesignee.
H. The Contractor understands and acknowledges that payment for services under this Agreement is conditioned, in part, upon the Contractor's compliancewith this "Security Clearance" Section and that in accepting payment, the Contractor represents that the Contractor isin fullcompliance.
I. Contractor's failure to comply withany provision under this "SecurityClearance" Section may result in the withholding of payment and/or termination of this Agreement at the discretion of the Board. Additionally, in the eventthat Providerfails to comply withany provision in this "SecurityClearance" Section, the Board shall havethe right to impose liquidated damages in theamount ofTwo HundredDollars ($200.00) per day andset-off such amountfrom anymoniesdueandowingtotheContractoruntil Contractorcomplies withtheapplicableprovision.
9. PERSONNEL/LICENSE REQUIREMENTS
(A) The Contractorshall supply all supervisorystaff necessary to completesuccessfully theperformance of thisAgreement.
(B) The Contractor shallretain only certified,licensed, competent personnelto provide the Services hereindescribed.
(C) Therelatedservicesmustbeprovidedonlybytheindividual provider namedon each student's RSA form. In the event that an individualprovider must changes,a new RSA form must be completed and signed by the parent and Contractor,and submittedtothe Boardforapproval.
(D) The requirements for the providersof relatedservicesunder this Agreement are listed below. Contractor shall not be entitled to payment for related services performedby individualswho do not possessvalid and appropriate licenses and certification as listed below.
• Counseling: ANew York State licenseandcurrent registrationasa Mental Health Counselor, Clinical Social Worker orPsychologist
• HealthServices by aRegistered Nurse for Schools Program and Health Services forTransportation: ANew York State licenseand current registration as a Registered Nurse andcurrent certificationin Cardio-Pulmonary Resuscitation, as well as Automated External Defibrillation (CPRIAED).
• Health Services by a Health Aide: Supportingdocumentation that the individual has been trainedas aHealth Aide.
• Occupational Therapy: A New York State license and current registration as an Occupational Therapist.
• Physical Therapy: ANew York State license and current registration as aPhysical Therapist.
• Speech Therapy:A NewYork Statelicenseand current registration asa Speech/Language Pathologist and aNewYorkState Education Department certificate as a Teacher of the Speech and Hearing Handicappedor Teacher of Students with Speech and Language Disabilities. Please note: Clinical Fellowship Year (CFY)candidates must be directly supervised by their CFY NYSlicensedSLPholding the previously mentioned credentials. In addition,CFY candidates must also hold the initial Teacher of Speech Language Disabilities certification andhave anapproved application on file with New York State for their CFY.
• HearingEducation Services: A New York StateEducation Departmentcertificate as a Teacher ofDeaf and HearingImpaired or Teacher ofDeaf and Hard ofHearing.
• Vision Education Services: A NewYork State Education Department certificate as a Teacher of Blind/Partially Sighted or TeacherofBlind and VisuallyImpaired.
• Evidence of Bilingual Proficiency:The following licenses or certificationsare acceptable: The passing results of the New York State Education Assessment (BEA) or othervalid language proficiency assessment; and/or(b) a New YorkState Education Department BilingualExtension Certificate. Reports of Language Proficiency,formerlyconducted by Colleges/Universities areno longer acceptable.
10. CHANCELLOR'S DESIGNEE(S)
Wherever mentioned inthis Requirements Agreement,the Chancellor's designee(s) shall be theExecutive Director, Office of Related andContractual Services and/or suchother person(s) asthe Chancellor shall designate.
11. CONFIDENTIALITY
A. In the course of the Services under this Agreement, the Contractor will have access to certain oftheBoard’s and the Board’s students’Confidential Information as defined in paragraph (C) herein. Without the Board's written consent,the Contractor shall not disclose any Confidential Information unless required bylaw orcourt order.The Contractor shall use such Confidential Information only for the purposes for which it was provided by the Board. The Contractor shall advise its employees and agents with access to the Confidential Information of its confidentiality. Upon the termination ofwork on this project, theContractor shall return all Confidential Information that has been providedand any analyses or other documents prepared by the Contractor which reflect Confidential Information.
B. The Contractor and allContractor Personnel shall adhere in every respect tothe law, Board policy and the Chancellor's regulations concerning confidentiality of student records. TheChancellor's Regulation A-820 governing access to and the disclosure of information contained in student records are incorporated into this Agreement by this reference. The Contractor shall submit to theBoard any and all information and data that the Contractor andContractorPersonnel collect pursuant tothis Agreement unless otherwise prohibited by law.
C. "Confidential Information" means: (i) any personally identifiable information related to Board students,student families or guardians, teachers, staff, agents and/or volunteers; (ii) any information marked "confidential" or any other information that areasonable person under similar circumstances would consider tobe confidential or proprietary at the time of disclosure, notwithstanding a failure to makeit or identify it as such; and (iii) all derived based thereon; whether in oral, written, graphic, or machine-readableform. Confidential Information of the BOE includes, but is not limited to, names, addresses, contact information, school, school district, grades orother reviews, scores, analysisor evaluations, records,correspondence, activities or associations, financial information, social security numbersor other identifying numbers orcodes,dateof birth orage, gender,religion, sexual preference, national origin, socio-economic status (including free/reduced lunch status), race, ethnicity, special education status, or English Language Learner status.The Board may provide the Contractor with certain Confidential Information, as necessary for performance of the Services,includingParticipantstudents'grades, transcripts, attendance data, and school schedule.
D. Contractor agrees to:
(i) Hold the Confidential Information of theBOE instrictconfidence and notto disclose Confidential Information ofthe BOE to any thirdparties nor make use of such Confidential Information for its own benefit or for the benefit of another,or for any use otherthan the purpose of thisAgreement.
(ii) Only disclose the ConfidentialInformation of the BOE to its employeesor agents who need to know the Confidential Information of the BOE, and in those instances, only to the extent justifiable by thatneed, andensure thatall such entitiesand personnel comply with theterms of this Agreement.
(iii) Adhere in every respect to the Law, BOE policy and the Chancellor's regulations concerning confidentialityof personally identifiable pupil records, including Chancellor's RegulationA-820.
(iv) Hold all individually identifiable information obtained, learned or developedby Contractor confidential pursuant to applicable provisions of the Family Educational Rights and Privacy Act (20U.S.C. 1232g)and any applicableregulations promulgated thereunder. Contractorunderstandsthat the release of confidentialinformationto persons or agencies not authorized toreceivesuchinformation isaviolationofUSfederal law.
(v) Whenever required by BOE, Contractor shall promptly surrender (or destroy if surrender isnot practicable) all Confidential Informationof theBOE and all media containing same to the BOE and certify, in writing,that all of the foregoingmaterialshave been surrenderedordestroyed inaccordance with thisAgreement.
E. Unauthorized disclosure of Confidential Information by theContractor,its Contractor Personnel andagents may result in civil and/orcriminal penalties under New York State and Federal laws.Moreover, in addition to all otherremedies that Board may have, theBoard shall beentitled to specific performance andinjunctiveor other equitablereliefasaremedy forany breach ofconfidentiality
12. BOARD AUTHORITY
Thesupervisory and disciplinaryauthority of the Board, the Chancellor, Superintendents, Principalsandother Boardstaff over staff, pupils and buildings oftheCity School District of the City of New York shall not be diminishedinany mannerbythis Agreement.
13. OWNERSHIP OFDOCUMENTS AND OTHERMATERIALS
Any reports, evaluationdocuments, work papers, notes, correspondence, visual and/or soundrecordings, and otherforms of documentation generated under this Agreement,as well as any materials the Contractor is required to furnishthe Board, including drafts and reproductioncopiesthereof,shall be and remain exclusiveproperty of the Board. Upon requestby theBoard, the Contractor shall deliver all such materials totheBoard. Except in connection with the performance of its obligationspursuant to the Agreement, the Contractorshall not publish,cause or allow to be published,or license the use oftheabove- expresseddocumentation and or recordings without prior written approval fromthe Chancellor orhisdesignee(s). The Contractormayotherwise keepcopies of such materials for internal use inconnection with performanceof this Agreement.
14. CHANGES IN OWNERSHIP/PARTICIPANTS
The Contractorshall be responsible during the Term of the Agreement for notifying the Chancellor orhis/herdesignee(s)inwriting within ten (10) calendardays, ofany changes in any of the following: (A) beneficialowners (including, withoutlimitation, parent andover- parent entities), limited orgeneral partners, silent orapparentpartners,majorshareholders (more than five percent stock ownership), elected orappointed officials,officersand/or directors of the Contractor;(B) subsidiary and/or affiliated entities that are directly or indirectly involvedin theperformance of this Agreement; (C) consultants, sub-consultants and/or subcontractors directly or indirectly involved in theperformance of this Agreement; (D)transferpayees or paymentassignees; and(E) anyrelationship that might involve or create a conflict ofinterest.
15. NOSUBCONTRACTINGWITHOUTTHE CONSENTOFTHEBOARD
Contractors and their staff(s) areprohibited fromsubcontractingtootheragencies, firmsor individualswithout the priorwritten approval of the Chancellor's Designee. In theevent of suchapproval this Agreement shallnot create any relationshipbetween theBoard and any of the Contractor's consultants,sub-consultants and/or subcontractors. Allclaims,actions, disputesand/orother controversies arisingunder any formal, informal, written and/ororal agreement and/or other relationship between the Contractorand any one or more of its consultants, sub-consultants and/or subcontractors shall be and remaintheContractor's sole province, interest andresponsibility including subcontractors.
16. NO OTHER FEECHARGES
The Contractor shallnotcharge anystudent, theirparent(s) orguardian(s)foranyServices provided underthis RequirementsAgreement.
17. INCORPORATION OFTERMS ANDCONDITIONS
Thefollowing documentis herebyincorporated by this referenceinto this Agreement: the standard "Termsand Conditions"of the Board, which are hereto affixed asAttachment B.
18. CONFLICTS OFINTEREST
The Chancellor's Regulation on Conflicts of Interest C-110 is hereby incorporated by this reference into theAgreementas if set forth hereininits entirety.
19. ORDER OF GOVERNANCE OF THIS DOCUMENT AND ITS ATIACHMENTS
Thefollowing order of governance shall prevailin the event of a conflict with the document andanyattachments: firstAttachment A,then this document,thenAttachmentB.
20. HEADINGS
The paragraphheadings ofthis Agreementare inserted for reference onlyand shallnotbe used tointerpret thisAgreementin anyway.
21. EXECUTORY CLAUSE
This Agreementshall be deemed executory only to the extent of moniesavailable to the Board for the performance of its terms,and noliabilityshallbe incurredby the Boardbeyond the monies so available.
22. AFFIRMATION NO DEBT
TheContractor affirmsand declares that said Contractor is not in arrears to the City of New Yorkupon any debt, contract ortaxes and is not adefaulter, as asurety or otherwise, upon anyobligation tothe City ofNew York, and has not been declared not responsible, or disqualified, by any agency of the City of New York, nor is there any proceeding pending relating tothe responsibilityor qualification ofthe Contractorto receive public contracts.
23. REPRESENTATIONS
TheContractor doeshereby representandwarrantto theBoardthe following:
(i) Contractor has the full power and authority to execute and deliver this Agreement andtoperform allofits obligations hereunder;and
{ii) That the execution and delivery of this Agreement have been duly authorizedby all necessary action ofthe Contractor and constitutesthe valid and legally binding obligation of the Contractor,enforceable againsttheContractorin accordance with itsterms.
{NO FURTHERTEXT ON THIS PAGE)
IN WITNESSWHEREOF, theparties have executed this Agreementas of the year and dayfirst above written.
BOARDOF EDUCATION OF THE CITY
SCHOOL DISTRICT OFTHE CITY OF
NEW YORK | | CONTRACTOR |
| | | | | |
| BY: | /s/ Roger Platt | | BY: /s/ | Jared Bauer |
| | | | | |
| | For the Chancellor | | | Jared Bauer |
| | | | | Print Name |
| | | | | |
| | | | | VP of Operations |
| | | | | Title |
| | | | | |
| | | | | 16-1503758 |
| | | | | Tax IdentificationNumber (Required) |
ApprovedastoBudget, Program
Description ofServicesand
Availability ofFunds:
| BY: | /s/ Ava Mopper | |
| Director | |
| Office ofRelated and Contractual Services | |
THISCONTRACT FORM HAS BEENAPPROVED BY THE NEW YORKCITY DEPARTMENT OF EDUCATIONOFFICEOF LEGAL SERVICES ANDTHENEWYORKCITY LAW DEPARTMENT. NOALTERATIONS, INSERTIONS, OR DELETIONS ARE PERMISSIBLE AND ANY SUCH ALTERATIONS, INSERTIONS, ORDELETIONS SHALL BE DEEMED NULL AND VOID.
BOARD OF EDUCATION ACKNOWLEDGMENT
| STATEOF NEW YORK | ) |
| CITY OF NEW YORK | ) |
| ss: COUNTYOF NEW YORK | ) |
Onthis25thdayofApril , in the year 2011 beforeme personally appearedRoger Platt, on behalfof the BOARDOF EDUCATION OF THE CITY OFNEWYORK and acknowledged thathe/sheexecuted the foregoing Agreement on behalf ofsaid BOARD OF EDUCATION OF THECITY OF NEW YORK.
/s/ Adeathra Williams
ADEATHRA WILLIAMS
NotaryPublic, State of New York
No. 01W16202741
Qualifiedin New YorkCounty
Commission Expires03/23/2013
CONTRACTORACKNOWLEDGMENT
| STATE OFNEW YORK | ) |
| CITY OFNEW YORK | ) |
| ss.: COUNTYOF | ) |
On this 5th day of April, 2011, before me personally came Jared Bauer, to me known and who, being duly sworn, did depose and say that he is the VP of Operations of Interactive Therapy Group, described herein and who executed the foregoing agreement, and duly acknowledged to me that he duly authorized to execute the same on behalf of the Interactive Therapy Group for the purposes herein mentioned.
/s/ Robin Sikora
ROBIN E. SIKORA
NotaryPublic, State of New York
No. 01S16034517
Qualifiedin NassauCounty
Commission ExpiresDecember 13, 2013
ATTACHMENT A
REQUESTFORAUTHORIZATION
REQUEST FOR AUTHORIZATIONTOENTERINTO REQUIREMENTS AGREEMENTS FOR THEPROVISIONOFRELATEDSERVICESTO STUDENTSWITH DISABILITIES AGES3 TO 21 YEARS
Estimated Annual Total Contract Amount | Funding Source | Contract Term | Options to Renew | Procurement Method | Is Contract Retroactive? | Contract Type |
| $ 5,490,829/$10,981,658 | Tax Levy | 2 Years(September 1,2010to August31, 2012) | None | Court MandatedServices | No | RequirementsAgreements |
Vendor Name & Address | Various; seetablebelow. |
Service Requestor/Contract Manager | DivisionofContracts and Purchasing Contact |
Ava Mapper, Director Officeof School Health (OSH)/ Officeof Related&Contractual Services (ORCS) | Susan Naste, Contract Manager Funded&SpecialServicesProcurement (FSSP) |
STATEMENT OF PURPOSE
TheChancellor'sapproval issoughtto enterintorequirements contracts withindependentproviders for special education related services(Related Services). Independent providers are necessary to fulfillstatutory,regulatory andcourtorderedmandatespertainingto the provision of related services to students certified as havinga disability.
Thefollowingvendors arerecommended for aRelated Services Contract:
| | | | | | Estimated | |
| | | Independent Provider | | | Annual Amount | |
| | | | | | | |
| 1 | | | City Sounds of New York | | $ | 399,955 | |
| | | | Chelsea Arts Building | | | | |
| | | | 134 West 26th Street Suite #602 | | | | |
| | | | New York, New York 10001 | | | | |
| | | | | | | | |
| 2 | | | Greater New York Services Home Care | | | | |
| | | | 535 Kent Avenue | | $ | 358,000 | |
| | | | Brooklyn, New York 11211 | | | | |
| | | | | | | | |
| 3 | | | Interactive Therapy Group | | | | |
| | | | 1 Adler Drive | | $ | 350,435 | |
| | | | East Syracuse, New York 13057 | | | | |
| | | | | | | | |
| 4 | | | Keep Children Moving | | | | |
| | | | 244 Fifth Avenue S#267 | | $ | 2,141,560 | |
| | | | New York, New York 10001 | | | | |
| | | | | | | | |
| 5 | | | Kenneth J. Wachstick | | | | |
| | | | 196-14 Pompeii Avenue | | $ | 110,000 | |
| | | | Holliswood, New York 11423 | | | | |
| | | | | | | | |
| 6 | | | Kids In Harmony | | | | |
| | | | 227 Harmony Drive | | $ | 131,065 | |
| | | | Massapequa Park, New York 11762 | | | | |
| | | | | | | | |
| 7 | | | Movement Matters | | | | |
| | | | Alice Chiu | | $ | 1,171,837 | |
| | | | 264 Canal Street | | | | |
| | | | New York, New York 10013 | | | | |
| | | | | | | | |
| 8 | | | Occupational Therapy ON | | | | |
| | | | 250 West 57th Street-Suite 814 | | $ | 105,000 | |
| | | | New York, New York 10107 | | | | |
| | | | | | | | |
| 9 | | | P’Tach | | | | |
| | | | 1428 36th Street-Suite 211 | | $ | 138,353 | |
| | | | Brooklyn, New York 11218 | | | | |
| | | | | | | | |
| 10 | | | Signature Learning | | | | |
| | | | 19 West 21st Street-Suite 701 | | $ | 286,676 | |
| | | | New York, New York 10010 | | | | |
| | | | | | | | |
| 11 | | | Speak Out New York | | | | |
| | | | 12-48 Clintonville Street | | $ | 180,678 | |
| | | | Whitestone, New York 11357 | | | | |
| | | | | | | | |
| 12 | | | Susin Gladstone | | | | |
| | | | 135 East 83rd Street-4B | | $ | 117,270 | |
| | | | New York, New York 10028 | | | | |
| | | | | | | | |
| Total Estimated Annual Amount | | $ | 5,490,829 | |
DISCUSSION
The DOE is mandatedby federal andstatelaw, as wellas by judgmentin federal court, to evaluate and provide special education related services to identified students with disabilities. The DOE's Standard Operating Procedures Manual: The Referral,Evaluation and Placement of SchoolAge Studentswith Disabilities (datedFebruary 2009) outlinesa broad range ofspecialeducation servicesand provides a basis for Individualized Education Programs(IEP). IEPs include Related Service recommendations. Related Services support the participation ofstudents with disabilitiesin generaleducationclassrooms. Those services includeoccupational therapy,physical therapy, speech therapy,nursing, and counseling inEnglish and otherlanguages. The deliveryof theseservices must be provided in a timely fashion.
In cases where NewYorkCity Department of Education (DOE)personnel andagencies undercontract with the DOE are unable to meet this mandate, services may be obtained by parentsfrom licensed/certified independentproviders. They are obtained through the Related Service Authorization (RSA) procedure described below. Thesecontracts are for related service providers estimatedtoprovidemore than $100,000 peryear in services. Doing so assurestheDOEthat large providers havecontractual obligations inaddition tothose stated in the RSA.
TheRSA processbegins when a studentisrecommended toreceivearelatedserviceand theDOE does not have either in-housestafforcontractedagency staff available. The RSA allowsparents to obtaintheneeded servicesfrom an appropriately licensedor certified independent provider,at no cost to them.Therelated services may beprovided at the student'sschool, home,or at the provider's placeof business. Providers must beapprovedbythe respective Committee ofSpecial Education (CSE) and Children First Network (CFN) before the start ofservice.
The Office of Related & Contractual Services sets the rate schedule for RSA services. The rates vary depending on the servicetype,language (monolingual/bilingual), group size, and/or session length (current schedule attached).All DOE-contractedprovidersentering into aformal agreement authorized bythis RA must adhere tothesame rate schedule.
Thesubject contracts arenotpursuant to procurementsand are thereforenotsubjecttothe 2009 Education Law provisionsregardingPanel for Educational Policyapproval and registrationbeforeimplementation.
DCP conducted background reviews in VENDEX and its own internal records for contractsestimated $1,000,000 and less. For those contracts estimated at over $1,000,000,the following databases were reviewed: Variouscriminal data bases, D&B,Lexis, Westlaw, OSHA,Federal Debarment List,Departmentof Justice, New YorkstateDepartment of Taxation, UniformCommercialCode, Workers Compensation DebarredList,New York State DivisionofCorporations, SEC,andtheNew YorkState Charities Bureau. No Advices ofCautionorsignificantadverseinformation were uncovered with thefollowing exceptions:
• �� Greater NewYork ServicesInc.: An affiliate ofthe prime vendorhasanoutstanding $359,965IRSlien from October 2009. DCP obtained aletterfrom the IRSstatingthat thecompany is working with the IRS on a paymentby installmentagreement.
• KeepChildrenMovingTherapy LLC: Keep Children Moving was involved in a2006case investigated by theSCIwhenthe company was known asKCM Therapy.The sole owner reported to SCI that two of its independent providers hadsubmitted time sheets falsely describingthe services provided tostudents. One of themallowed an unidentified male to attend OT sessionswithschool children. Sincethe owner reported the matter to SCI, and since the SCI report did not recommend anyactionbetaken against KCM orsole owner, this is not believed that themattershouldbar anaffirmative determinationofresponsibility.
All vendors are deemed responsible.
RELATED SERVICE AUTHORIZATION -4FORM — RATE SCHEDULE FOR
INDEPENDENT PROVIDERS OFRELATED SERVICES
| Typeof RelatedService | | Language | | Group Size | | Maximum Rate | | Session Length |
Counseling: Licensed Psychologist | | Monolingual/Bilingual | | Individual/Group | | $ | 45 | | 30minutes |
Counseling: Mental Health Counselor | | Monolingual/Bilingual | | Individual/Group | | $ | 45 | | 30minutes |
Counseling: LicensedClinical Social Worker | | Monolingual/Bilingual | | Individual/Group | | $ | 40 | | 30minutes |
| HeaHh: RegisteredNurse | | Monolingual | | Individual/Group | | $ | 45 | | 30minutes |
Health: Health Aide | | Monolingual | | Individual/Group | | $ | 20 | | 60minutes |
| Hearing EducationServices | | MonolinguaUBilingual | | Individual/Group | | $ | 45 | | 30minutes |
| SignLanguage Interpreter | | MonolinguaUBilingual | | Individual/Group | | $ | 30 | | 30minutes |
| Occupational Therapy | | Monolingual | | Individual/Group | | $ | 45 | | 30minutes |
| Physical Therapy | | Monolingual | | Individual/Group | | $ | 45 | | 30minutes |
| Speech Therapy | | Monolingual | | Individual | | $ | 45 | | 30minutes |
| Speech Therapy | | Monolingual | | Groupof2 | | $ | 56.25 | | 30minutes |
| Speech Therapy | | Monolingual | | Groupof3 | | $ | 67.50 | | 30minutes |
| Speech Therapy | | Monolingual | | Groupof4 | | $ | 78.75 | | 30minutes |
| Speech Therapy | | Monolingual | | Groupof 5 or more | | $ | 90 | | 30minutes |
| Speech Therapy | | Bilingual | | Individual | | $ | 54 | | 30minutes |
| SpeechTherapy | | Bilingual | | Groupof2 | | $ | 67.50 | | 30minutes |
| SpeechTherapy | | Bilingual | | Groupof3 | | $ | 81 | | 30minutes |
| Speech Therapy | | Bilingual | | Groupof4 | | $ | 94.50 | | 30minutes |
| Speech Therapy | | Bilingual | | Groupof 5 or more | | $ | 108 | | 30minutes |
| VisionEducationServices | | Monolingua/Bilingual | | Individual/Group | | $ | 45 | | 30minutes |
| Orientation/MobilitySpecialist | | Monolingual/Bilingual | | Individual/Group | | $ | 45 | | 30minutes |
ATTACHMENT B
BOARD'S STANDARD TERMS AND CONDITIONS
TERMSANDCONDITIONS
1. Definitions
A. Words used in this Agreement shall havetheir ordinary meanings inthe Englishlanguage, except that scientific,technical, specialized or foreign words shall begiventheir appropriate scientific,specialized or foreignmeanings, and definitionsspecifically providedelsewhere in the Agreement shall apply.
B. The followingwords, namesandtitles shall havethe following meanings:
(1) "TheBoard" means the Boardof Educationof the City School District of the Cityof NewYork.
(2) "TheCity'' meansthe CityofNewYork.
(3) "Contract Budget Detail" means the document attachedto and incorporated into the Agreement explaining andlimninghowfundspaidhereunder are to be expendedby the Contractor.
(4) ''TheComptroller" and "TheCommissioner of Finance" meanthe Comptrollerandthe Commissioner of Financeof theCity, respectively.
(5) ''The Chancellor· means theChancellor of theBoard.
(6) "Approved," "Required," "Directed," "Specified," "Designated" or "Deemed Necessary," unless otherwise expressed, mean approved, required, directed, specified, designated, or deemednecessary, asthe casemay be by the Chancellor or hisdesignee.
(7) "Completion" means full and complete compliance withevery requirement of the Agreementby theContractor as certified by theChancellor orhis designee.
(8) "Final Payment" means (i) thepaymentorrefund by theBoardorCity of anymoneys that exhauststhe amount of money made available undertheAgreementor (ii) any paymentmarked"Final Payment."
2. Captions
The headings of this Agreement, theparagraphs, and subparagraphsof the Agreement,and of any attachments,are included solely for convenience and reference, and they shall not be used in any way tointerpretthisAgreement.
3. Conditions Precedent
This Agreement shall not become effective or binding upon the Board until: (1) it shall have been approved as to legal sufficiency by the Board's Office of Legal Services; (2) it shall have been executed bytheChancellor; (3) itshallhavebeen approved asto legal authority bythe NewYorkCity LawDepartment; (4)itshallhave been registered by theComptroller; (5)itshall havebeenapproved by the New York State Education Department, if applicable;and, (6) the Comptroller shall have issued a certificate indicating there remains unexpended and unapplied a balance ofthe appropriation or fund applicable hereto sufficient to pay the estimated expense of performingthe Agreementas certified by the Board. A Requirement Agreement for an extended period willrequire an endorsementupon the Agreement fromtime to time as services and/oritems and materials are ordered, of the sufficiency of the appropriation applicable towards the payment forsaid services and/or materials as and whenordered. (Rev. 4/16/01)
4. CompliancewithLaws
In connection with the performanceofthisAgreement, theContractor shallcomplywithallapplicable laws, rules and regulations. The parties hereto agree that every provision of law required to be insertedhereinbe deemed a parthereof. Itisfurther agreedthatif anysuchprovisionisnot inserted orisincorrectly inserted, through mistake orotherwise, this Agreementshall be deemed amendedso astocomply strictly with theLaw.
5. Unlawful Provisions Void
IfthisAgreement containsanyunlawful provisions orportions thereof, they shallbe deemeddeleted fromthe Agreement andthe remainderofthe Agreement shallremainin fullforce andeffect.If the deletionofsuchprovision frustrates thepurpose of this Agreement, either partymaymake application totheChancellor's designee forrelief. (Rev. 10/4/02)
6. Religious ActivityProhibited
Thereshallbe noreligiousworship, instruction, proselytizing, orotherreligious activity in connection withthe performanceof this Agreement
7. Political ActivityProhibited
NoBoard propertyprovidedtothe Contractorhereunder forthepurposesof this Agreement shallbe used for any political activity or to further the election or defeat of any candidate forpublic office. As usedhereinthe term"Board property" shallinclude,but notbe limitedto, supplies, worksites,funds advancedand services.
8. Publication andPublicity
The Contractoror anyoneemployed by the Contractor may not publish the results of its participation or findings intheperformance ofthis Agreementwithout thepriorwritten approval of the Chancellor or his designee.Allapprovedpublicationsshallacknowledgethat the program is supported byfunds from the Board. Fivetruecopies ofeach approved publication shall befurnished to theBoard without charge. (8/29/88)
9. Copyright
If the Contractor or anyone employed by the Contractor shall write, record or otherwise produce copyrightable material within the scope orin furtherance of this Agreement, the Board shall be consideredthe authorfor purposes of copyright,renewalof copyright, and terminationof copyright and,unless expressly waived in a written instrumentsigned by the Chancelloror his designee, the owner ofall ofthe rights comprised inthe copyright. (6/88)
10. Patents
Any invention or discovery arising out of or developed in furtherance of this Agreement shall be promptly and fully reportedtothe Board. The Boardshallhavethe exclusive rightto applyfor patent protection on such invention ordiscovery and to determine how the rights in said invention or discovery,including rights underanypatent issued thereon, shall be disposed ofand administered.
11. Accounting forProperty
If any property is acquiredbytheContractor with fundsprovidedbythe Board under thisAgreement, thepropertyshallbedeemedpurchasedby theBoardforthe useoftheContractor duringthetermof theAgreementshall bepermanently embossed "Propertyof NewYork City Board ofEducation" and shall bereturned to the Board,atthe Contractor's expense, withinthirty (30) days after theend of said term, unless the Contractorisotherwisenotified in writing by theChancellor or his designee. (6/21/88)
12. Non-ReimbursableExpenses
The following items may notbe claimed asa direct orindirectcost ofthe Servicesprovided underthis
Agreement:
| a. | rental expense ofapartments; |
| b. | interest on loans; |
| c. | penaltiesfordelinquent filing oftaxreturns; |
| d. | political or charitable contributions; |
| e. | advertising and promotions; |
| f. | legal expenses; |
| g. | key-man life insurance premiums; |
| h. | federal, state and city income taxes,state and city franchise taxes,and any costs for the preparation of such taxreturns; |
| i. | expensesincurred in preparing foroperations; |
| j. | cost of employee meals and lodging except whentraveling outsidetheCityandpursuant to the Contract Budget Detailof this Agreement; |
| k. | entertainment, gratuities, and any other items of apersonal nature; |
| I. | long distancetelephonecallsunlessdirectly relatedto theservicesprovided under the terms of this Agreement; |
| m. | anyexpense not ordinary, necessaryor reasonable inthe performance ofthe Agreement. |
13. LimitationonOverhead
Notwithstanding anyprovision of thisAgreement tothe contrary, the Contractor shallbe reimbursed for overhead costs equal tothelesser of either(1)the amount specifiedintheContractBudget Detail of this Agreementor (2) the amountcalculated by multiplyingthe totaldirect labor costplus fringe benefits statedin the Contract BudgetDetail ofthis Agreementbya fraction, the numeratorof which shallbe the totalof all the Contractor'soverheadcosts during the term ofthis Agreement for all operations,and thedenominatorofwhich shall bethetotalof all ofthe Contractor's direct laborcosts plus fringe benefitsduring the Termof this Agreement for all operations.
14. No Extra Compensation
The Contractor shall not seek, ask for, demand, sue for or recover, asextra compensationor otherwise, any sum for labor, materialsor Servicesotherthan the compensation agreeduponand fixed.
15. InvoicesandPayments
TheContractor shallfurnishproofof performance witheachinvoice, andshallcomply withall Board requirementsconcerning the manner inwhich invoicesare to be submitted. The Contractor shall not be entitled todemand orreceive fullor partialpayment,until eachand every oneoftheprovisions of this Agreement is complied with, and the Chancellor or his designee shall have given written certification to that effect. Nothing containedherein shall beconstruedto affect the right hereby reserved by the Board to rejectthewholeor any portionoftheperformance,should said certification be inconsistentwith thetermsof thisAgreement,orotherwise erroneouslygiven.
16. Cancellationof Grant Funding
If thegoods or Services to be provided hereunder areto be paid for, in whole orinpart, by meansof grantfunding receivedbytheBoard fromfederal, state, city orprivatesources,theobligation to pay the Contractor shallbesubjectto thecontinuing availability ofsaidfunding. The Board shallnotify the Contractorwithin five (5)business days from thedate theBoard receives written noticeof the cancellation of grant funding, in whole or in part, whereupon the Contractor maycease further performance of this Agreement to the extent said performance would not be supported by grant funding. However, the Board may, at itsoption, requirecompletionofperformanceof this Agreement by the Contractor upon giving written assurance, signed by the Chancellor or his designee, within fifteen (15) businessdaysofthedatethe Board receives written noticeof suchcancellation,thatthe completed performance ofthis Agreementshallbesupported by otheravailable funds.
17. No Estoppel
The Board, City,and their respectivedepartments,divisions and offices, shall not be precluded or estoppedby a statementor document issued byor onbehalfofthe BoardortheCity,from indicating thetruevalueof Servicesperformedandsupplies furnished by the Contractororbyanyotherperson pursuantto or as a result of this Agreement, or from indicating that any suchreturn or certificateis untrue orincorrectinany particular, orthattheServicesperformedand suppliesfurnishedor any part thereof do notin fact conform to the provisions of the Agreement Notwithstandingany such statement or document,or payment in accordance therewith,the Boardand the City shall not be precluded orestopped fromdemandingandrecoveringfrom theContractor such damages asmaybe sustained by reasonoftheContractor's failure tocomply withtheprovisions of thisAgreement.
18. AcceptanceofFinal Payment
Receipt and negotiation by the Contractor, orby anyperson claiming underthis Agreement, ofthe Final Payment hereunder,notwithstandingwhethersuch paymentbe made pursuant toany judgment or order of any court,shallconstitute a generalrelease of the Board from any and all claims and liabilityforanything done,furnished, orrelating to thelabor, materials, or services provided, orfor any act of omission or commission of the Boardor its agents and employees. Said release shall be effective againsttheContractor and theContractors representatives, heirs, executors,administrators, successors,and assigns.
19. Claims- Limitation of Action
No actionat law or equityshall be maintainedby the Contractor, its successorsor assigns, against the Board on any claim based upon or arising out of this Agreement, or out of anything done in connection with this Agreement, unless such actionshall be commenced within six (6) monthsafter the date of filing of the voucher for final paymenthereunder or withinsix (6) months of the required completion datefor the services performed hereunder, whicheveris sooner. Noneofthe provisions of Article2of the Civil Practice Lawand Rulesshallapplytoany action against the Board arising outof this Agreement.
20. Notices
The Contractor’s address stated on page 1 of this Agreement is hereby designated as the place where all notices,letters or othercommunications directed to the Contractorshall be served, mailed or delivered. Any notice, letter or other communication directed to the Contractor anddelivered to such address, or sealed in a post-paid wrapper and deposited in any post office box regularly maintainedby the United StatesPostal Service,shall be deemed sufficient servicethereof upon the Contractor. Said address may be changed at any time by an instrument in writing, executed and acknowledged by theContractor and delivered to theChancellor’s designee. Nothing herein containedshall bedeemed to preclude or renderinoperativepersonal deliveryof anynotice, letter or other communication, writtenor oral, to theContractor.Wheneveritshallbenecessaryorrequiredto prove the delivery of any notice, an affidavit describingsuchdelivery shallbe conclusive evidenceof suchdelivery.
21. AmendmentsandWaivers
A. This Agreement may be amended by awritteninstrumentsigned by anauthorized officerfor the Contractor,and by the Chancellor or his designee. No amendmentmaterially affecting the substance hereof shall be effective unless authorizedby the Chancellor,and a copy of said authorizationis attachedto theamendment andincorporatedtherein. (Rev. 11/27/02)
B. Nowaiverby the Boardof any term or condition hereof shallbeeffective unlessinwriting and signed by theChancellor orhisdesignee. Any waivershallbespecifically limitedtoits terms, andshallnot bedeemedapplicable to subsequentlikecircumstances.
C. Any purported oral amendment or waiver shall be void.
22. Suspension of Deliveries
The Chancellor or his designee, may postpone, delay, or suspend the delivery of the goods or Services, or any part thereof, without additional compensation to the Contractor. In such event, (A) the time established for performance by the Contractor of any duty during the Term of this Agreement may, at the Contractor's option, be extended for the number of days the Contractor was delayed by said suspension, postponement, or delay provided the Term is not thereby extended; however, (B) the Term may, at the Board's option, be extended for the number of days the Contractor was delayed by said suspension, postponement, or delay.
23. Cancellation
A. If the Contractor violates any provision of this Agreement, the Chancellor or his designee may pursue any legal or equitable remedies available to the Board. In addition, the Chancellor or his designee may seek to have the Contractor declared in default by a panel to be designated by the Chancellor. In the event that the Chancellor's designee shall determine the Contractor to be in default, the Board may cancel this Agreement and shall thereafter be relieved of all liability hereunder. Upon a finding of default in violation of this contract, the Contractor shall be deemed not responsible and disqualified from bidding for a period of four years, unless in such finding of default, a lesser penalty is imposed by reason of mitigating circumstances. (Rev.10/4/02)
B. In the event of breach of this Agreement by the Contractor, the Board shall have the right to cancel and terminate said Agreement, and the Contractor shall be liable to the Board for any additional cost of completion of the within services, the Board's other costs in connection with the termination, reletting and completion of the services. All such costs, along with any liquidated damages for delay provided herein, may be assessed by the Board against the Contractor and deducted by the Board from payment to be made to the Contractor under this or any other Agreement at any time between the Contractor and the Board or City. In the event that said costs exceed all sums owed at the termination date of this Agreement, the Contractor shall pay the amount of such excess to the Board upon notice from the Board of said amount, and in the event that said costs and liquidated damages are less than the sum payable under this Agreement as if same had been completed by the Contractor, the Contractor shall forfeit all claims to the difference to the Board. If the Board undertakes to secure the services or any part thereof under this section of the Agreement, the certificate of the Chancellor or his designee indicating the amount of services secured, the cost and excess cost, if any, of completing this Agreement, and the amount of liquidated damages hereunder, shall be conclusive and binding upon the Contractor, its assigns and all other claimants.
24. Board Determination
The Chancellor or his designee shall in all cases determine the acceptability of the labor, materials, or Services which are delivered pursuant to this Agreement, including but not limited to their quality, delivery, and condition, and shall in all cases decide every question which may arise relative to the performance of this Agreement. The Contractor may not rely upon, and the Board shall not be bound by, any explanations, determinations or other statements by or from the Board which are not in writing and signed by the Chancellor or his designee.
25. Investigations
25.1 The Contractor agrees to cooperate fully and faithfully with any investigation, audit or inquiry conducted by a State of New York (State) or City of New York (City) governmental agency or authority that is empowered directly or by designation to compel the attendance of witnesses and to examine witnesses under oath, or conducted by the governmental agency that is a party in interest to the transaction, submitted bid, submitted proposal, contract, lease, permit, or license that is the subject of the investigation, audit or inquiry.
25.2(a) If any person who has been advised that his or her statement,and any informationfrom such statement will notbeusedagainst himorherin any subsequentcriminal proceedingrefusestotestify beforea grand jury or governmental agency or authorityempowered directly or by designation to compel the attendanceofwitnesses and to examine witnesses under oath concerning the awardof, or performanceunder, any transaction, agreement,lease,permit, contract, or license enteredinto with theCity, the State,or anypoliticalsubdivisionor public authority thereof, orthePortAuthorityof New YorkandNewJersey, orany local development corporationwithin theCity, orany public benefit corporationorganizedunder thelaws oftheState of New York; or,
25.2(b) If any personrefuses to testify for areason other than the assertion of his orherprivilege against self-incrimination inaninvestigation,audit orinquiry conductedby aCityorState governmentalagencyor authority empowered directly or by designation to compelthe attendanceofwitnessesand to take testimony under oath,or by the governmental agency thatis a partyin interest in,and is seeking testimony concerning theawardof, or performanceunder,anytransaction, agreement, lease,permit, contractorlicense enteredinto with the City, the State,or any political subdivision thereof or any local development corporationwithintheCity, then:
25.3(a) Thecommissioneror agencyheadwhoseagencyisaparty in interestto the transaction, submitted bid, submittedproposal,contract, lease, permit,orlicense mayconvene ahearing, upon not lessthan (5)days writtennotice totheparties involved todetermine if any penalties should attachfor the failure ofapersonto testify.
25.3(b) If any non-governmental party tothehearing requestsan adjournment, the commissioner or agency head who convened the hearing may,upon grantingthe adjournment, suspend anycontract, lease, permit, orlicense pendingthe final determination pursuantto paragraph25.5 below without theCity and Board incurringany penalty ordamages for delayorotherwise.
25.4 The penalties whichmay attach afterafinal determinationby thecommissioneroragencyheadmay include butshall not exceed:
(a) The disqualification for a period not to exceed five (5) years from the date of an adverse determination for any person, or any entityofwhich such person wasa memberat the time the testimonywas sought, from submittingbids for,or transacting business with, or entering intoorobtaining any contract, lease, permitor licensewithor from the City andBoard; and/or
(b) Thecancellation ortermination of anyandallsuchexisting City and Boardcontracts, leases, permits or licenses that the refusal to testifyconcerns and that have not been assignedas permittedunder this agreement, nor the proceeds of which pledged, to an unaffiliated and unrelated institutional lender for fair value priortothe issuance of thenotice schedulingthe hearing, without the City and Board incurringany penalty or damages on account of such cancellation or termination; monies lawfully due for goods delivered, work done, rentals, or feesaccrued prior tothe cancellation or termination shall be paid bytheBoard.
25.5 The Commissioner oragency head shall consider and addressin reaching his or her determination andin assessingan appropriate penaltythe factorsin paragraphs(a) and(b)below. He or shemay also consider, if relevantand appropriate, thecriteriaestablished in paragraphs(c) and (d) below in addition toany other information which maybe relevant andappropriate:
| | (a) | The party's good faith endeavors or lack thereof to cooperate fully and faithfully with any governmental investigationoraudit, including but notlimited to the discipline, discharge, or disassociation of anypersonfailing totestify, theproduction of accurateandcompletebooks and records, and the forthcoming testimonyof all other members, agents, assignees or fiduciarieswhosetestimonyis sought. |
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| | (b) | The relationship oftheperson whorefused to testify to any entity that is apartyto the hearing, including but not limited to, whether the person whose testimony is sought has an ownership interest in the entity and/or the degree of authority and responsibility the person has within the entity. |
| | (c) | The nexus of the testimony soughtto the subject entityand its contracts,leases,permitsor licenses with theCityandtheBoard. |
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| | (d) | The effect a penalty may have on an unaffiliated and unrelated party or entity that has a significant interest in an entity subject to penalties under25.4 above,providedthat the party orentity has given actual noticeto the commissioner or agency head upon the acquisitionof the interest, or at the hearing called for in 25.3(a) abovegivesnoticeandproves thatsuch interest waspreviouslyacquired. Undereithercircumstancesthepartyor entitymustpresent evidence at the hearing demonstratingthe potentialadverse impact a penalty will have on such personorentity. |
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| 25.6 | (a) | The term "license" or"permit' asused hereinshall be defined as alicense,permit, franchise orconcession notgrantedas amatterofright. |
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| | (b) | The term "person" as used herein shall be defined as any natural person doing business alone or associated with another person or entityas a partner, director, officer,principal or employee. |
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| | (c) | The term "entity" as used herein shallbe defined as any firm, partnership, corporation, association, or person that receives monies,licenses,leases, orpermitsfrom or throughthe Cityor Boardor otherwise transacts business withtheCity or Board. |
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| | (d) | The term "member" as used herein shall be defined as any person associated with another person orentityasapartner,director, officer,principal oremployee. |
25.7 In addition toand notwithstanding anyother provisions of this agreement, the commissioner or agency head may in his or her solediscretion terminate this agreementupon not lessthanthree (3) days written noticein the event the Contractorfails to promptly report in writing to theCommissioner of Investigation of the City of New York any solicitation of money, goods, requestsfor future employmentorother benefitorthingof value, by or on behalf ofanyemployeeoftheCityorBoard,or other person, firm, corporationorentityforany purpose which may be relatedto the procurement or obtaining ofthis agreementbytheContractoror affecting the performanceofthis agreement.
26. Reports. Inspection andRecords
A. The Contractor shallpromptly provide all reports required by the Board,including without limitation, financial,program, statistical, analytical,narrative and progress reports. Unless otherwise provided herein, the final paymenthereunder shall not be made untilall reports havebeen submitted and approved bytheBoard.
B. The Contractorshall, until six(6)years after completionof its services hereunder orsix years after dateoftermination of this Agreement,whichever is later,maintain and retain complete and correct books and records relating to all aspects of the Contractor's obligations hereunder. Records must be maintainedseparately, so as toidentify clearly thehours charged to thisAgreementandbe distinguishable fromall otherhours chargedwhich are not related to this Agreement.
C. The Contractor shallmake its staff,and premises,books,records,operations,and Services provided underthisAgreement, and those of its subcontractors, available to theBoard and to anyperson,agencyor entitydesignated by the Board,atanytime, for program,audit, fiscal audit, inspection, observation, sampling, visitationand evaluation, and shall renderall assistance and cooperation for said purposes. The Contractor agrees to attend, upon demand, any investigationconducted by the Board to produce any records and other documentsrequired by the Board at thatinvestigation,to cooperate with the Board, and to give swam testimony pertaining to those documents or thesubject of theinvestigation; providedonly that the investigation, testimony,records and documentsrelate to thesubject of the Contractor'srelationshipwith the Board of Education. If a corporation, partnershipor governmentagency, the Contractor agreesto require its officers, employees and partnersto complywith the foregoing.
D. In its record keeping the Contractor shall also comply with all federal, state and local laws and regulations pertaining to such records, including, without limitation, the regulations of the Comptroller, and shall require its subcontractors to do likewise.
E. In the event that any federal, state or local government agency, or other public or private agency conducts an audit of any of the Contractor's operations which pertains directly or indirectly to the goods and services provided pursuant to this Agreement, within five (5) working days after receipt by the Contractor of notice of the commencement of such audit the Contractor shall give notice of such commencement to the Board; and within five (5) working days after receipt by the Contractor of a copy of any resulting interim or final audit report, the Contractor shall supply one copy thereof to the Board. (6/24/88)
27. Non-Assignment of Contract
The Contractor shall give its personal attention to the faithful performance of this Agreement. The Contractor covenants that it will not assign, transfer, convey, sublet or otherwise dispose of this Agreement or its right, title or interest therein or its power to execute such Agreement, to any other person or corporation without the previous written consent of the Chancellor or his designee. Request for permission to assign a contract shall be submitted in writing to the Chancellor's designee, Executive Director of the Division of Contracts and Purchasing, 65 Court Street, Brooklyn, New York 11201. A non-refundable processing fee of $250.00 for contract amounts less than $100,000.00 and $500.00 for contract amounts $100,000.00 or greater shall be submitted with the request. Said fee shall be by check or money order and made payable to the New York City Board of Education, Division of Contracts and Purchasing. The Chancellor's designee shall grant or deny such requests after consultation with the appropriate Division or Office, the decision is final and binding. If the Contractor in any way violates the terms of this provision, the Board shall have the right to cancel and terminate this Agreement, and the Board shall thereupon be relieved from all liability hereunder. Nothing contained herein shall be construed to affect an assignment by the Contractor for the benefit of its creditors made pursuant to the statutes of the State of New York. No right under this Agreement, or to any monies due or to become due hereunder, shall be asserted against the Board or the City in law or in equity by reason of a purported assignment of this Agreement, or any part thereof, or of any monies due or to become due hereunder, unless authorized as aforesaid. (Rev.11/27/02)
28. Contractor’s Staff
The Contractor shall employ or contract for the services of only competent workmen, consultants, independent contractors and other employees as are, or reasonably may be, necessary for the performance of the Services hereunder. The Contractor warrants that it shall be solely responsible for its employees' work, direction, safety and compensation. (6/84) The Contractor agrees to replace immediately any employee, and not engage such employee in the performance of this Agreement, if the Contractor is notified in writing that, in the opinion of either the Chancellor, a Community Superintendent, or their designees, such employee is incompetent or otherwise impedes the performance of the services hereunder.
29. Confidentiality of Records
All personally identifiable student and staff information obtained by or furnished to the Contractor by the Board, and all reports and studies containing such information prepared or assembled by the Contractor, are to be kept strictly confidential by the Contractor and shall not be provided or disclosed to any third party without the express written permission of the Chancellor or his designee. The Contractor shall limit access to such material in its control to those of its employees performing services pursuant to this Agreement strictly on a need to know basis. The Contractor shall restrict its use of the information to its performance under this Agreement and shall return all such material to the Board upon the completion of the services herein.
30. Testimony
If the project which is the subject matter of this Agreement at any time becomes involved in a proceeding, to which the Board or the City is a party, before any court, board, tribunal, panel, arbitrator, referee or agency, the Contractor shall provide such knowledgeable witnesses as the Board shall require, free of additional compensation of any kind. Nothing herein shall require the Contractor to provide testimony in any proceeding in which it is a party with interests opposed to those of the Board.
31. No Personal Liability
Neither the Chancellor, nor any board members, nor any officer, employee, agent or representative of the Board or of the City shall be personally liable, based upon any theory of law or equity, to the Contractor or to any party claiming on behalf of or through the Contractor, under this Agreement, or by reason of any individual's actions or failure to act in any way connected with this Agreement, whether or not the action shall have been within or without an individual's scope of authority. The scope of this provision includes personal injury to any personal interest (commercial or otherwise), physical injury (including death), property damages, and any pecuniary damages where such injuries or damages result from or arise out of negligence. The Contractor further waives any and all rights to make a claim or commence an action or special proceeding, in law or equity, against any of the aforementioned individuals, and the Contractor hereby assigns its complete right, title, and interest in any such claim, action, or special proceeding to the Board. (Rev. 12/12/02)
32. Indemnification
The Contractor shall protect, indemnify and hold harmless the Board and the City from any and all claims, suits, actions, costs and damages to which the Board and the City may be subjected by reason of injury to person or property, or wrongful death, as may result of any act, omission, carelessness, malpractice or incompetence of the Contractor, or anyone employed or engaged by the Contractor, in connection with the performance of this Agreement. (12/19/02)
33. Conflicts of Interest
A. Except as stated in paragraph B, no non-governmental Contractor may have on its Board of Directors (or comparable body), employ or have under contract for services (1) any present full-time officer or employee of the City of New York or the Board of Education or any part-time officer or employee of the Board, or (2) any present full- time officer or employee of the City on leave from the City or the Board or any part- time officer or employee of the Board currently on leave from the Board. Generally, the Conflicts of Interest Board may grant waivers of this provision, if an employee or officer is not involved in the Contractor's business with the City or the Board. Said waivers are discretionary and must be approved prior to the commencement of services by that individual. The Board of Education's Ethics Officer must be contacted if an officer or employee wishes to request a waiver. (Rev.12/12/02)
B. No Board of Education officer or employee may serve as an unpaid member of a Board of Directors (or comparable body) of a non-governmental not-for-profit Contractor without the permission of the Chancellor. To obtain this permission, the officer or employee must contact the Board of Education's Ethics Officer. All other City officers or employees may serve as unpaid members of Boards of Directors (or comparable body) of a non-governmental not-for-profit Contractor, if the officer or employee has no involvement with the Contractor's business with the City or the Board. (Rev.11/27/02)
C. No officer or employee of the Board of Education, or the officer or employee's spouse/ domestic partner or unemancipated child(ren) can have an ownership interest in the contractor, defined as an interest which exceeds five percent of the firm or an investment of $32,000 in cash or other form of commitment, whichever is less, and any lesser interest when the officer or employee or spouse, unemancipated child(ren), or domestic partner exercises managerial control or responsibility regarding any such firm. For Contractors with stock that is publicly traded, compliance with this subparagraph C is the obligation of Board of Education employees and officers. (1/16/03)
D. No former officer or employee of the Board may appear before the Board on behalf of a non- governmental Contractor within one year of the former officer or employee's termination of service with the Board. An appearance before the Board includes all communications with the Board. However, a former employee of the Board is not prohibited from serving on a non-governmental Contractor's Board of Directors (or comparable body), or from employment or contracting for services with the Contractor, provided that the former employee does not appear before the Board within one year of the termination of service with the Board.
E. No former officer or employee of the City (including the Board) may have any involvement on behalf of a non-governmental Contractor with any aspect of a contract, including services under that contract, if that former officer or employee was involved substantially and personally with any aspect of that contract while employed by the City. Any former City employee whose duties for the City or the Board involved a contract shall contact the New York City Conflicts of Interest Board for clarification before having any involvement with the contract on behalf of a non-governmental Contractor or any other private interest.
F. The Contractor warrants that, other than a bona fide employee or contractor regularly working as a sales representative for the Contractor, no person, selling agency, or other entity has solicited or secured this Agreement, or has been employed or retained to do so, for a commission, percentage, brokerage fee or contingent fee.
G. The Contractor shall not give, and warrants that it has not given or promised to give, any gift to a community school board member, school leadership team member or to any officer, employee or other person whose salary is payable in whole or part from Board or City funds, or other funds under this Agreement. The word 'gift" shall include, without limitation, money, tangible goods, services, loans, promises or negotiable instruments. (2/13/01)
H. If the Contractor violates any provision of this paragraph, the Board may, at its option: (1) cancel and terminate this Agreement and be relieved of all liability hereunder; (2) deduct all amounts paid by the Contractor or other value given by the Contractor in violation of this paragraph from payments made or to be made to the Contractor under this or any other Agreement at any time; (3) require the refund of any funds paid hereunder; (4) any combination of the foregoing; or (5) any other action the Board deems necessary and appropriate as permitted by law. Any breach of the warranties or violation of the provisions of this paragraph shall be grounds to find the Contractor or its principals as not a responsible bidder on other Board or City contracts.
I. Provider shall adhere to the Central Board of Education policy on Conflicts of Interest, the Chancellor’s Regulations on Conflicts of Interest C-110, and the New York City Charter provisions on Conflicts of Interest which are hereby incorporated by reference as if fully attached hereto.
34. Antitrust
The Contractor assigns to the Board its right, title and interest in and to any claim or cause of action arising under the antitrust laws of New York State or the United States relating to the goods or Services purchased or procured by the Board pursuant to this Agreement
35. Mercer and Choice of Law
This written Agreement constitutes the entire agreement of the parties, and no other prior or contemporaneous agreement, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or bind any of the parties hereto, or to vary any of the terms contained herein. This Agreement shall be governed and construed in accordance with the laws of the State of New York without regard to its conflict of law rules.
36. Participation in an International Boycott
A. The Contractor agrees that neither it nor any substantially-owned affiliated company is participating or shall participate in an international boycott in violation of the provisions of the Export Administration Act of 1979, as amended, or the regulations of the United States Department of Commerce promulgated thereunder.
B. Upon the final determination by the Commerce Department or any other agency of the United States that the Contractor or a substantially-owned affiliated company thereof, participated, or is participating, in an international boycott in violation of the provisions of the Export Administration Act of 1979, as amended, or the regulations promulgated thereunder, the Chancellor or his designee may, at his option, render forfeit and void this contract. (1/12/89)
37. No Discrimination
A. The Contractorwillstrictlycomplywith allapplicableFederal, State and Local laws pertaining to the subject of discrimination on any ground, as they may now reador as they may hereafter beamended.
B. The Contractoris,and will remain,anEqualOpportunity Employer. In addition to the other requirements of this paragraph 37, the Contractor shall provide equal opportunity for all qualifiedpersons, and shall not discriminate in employment because ofrace,creed,gender, color, age, sexual orientation, national origin, handicapping condition, marital status,or religion andshall promote thefullrealization ofequal opportunity. (Rev. 9/20/88)
C. Pursuant to the provisions of theNew York State Labor Law, the Contractoragrees, in its operations performed withinthe State ofNewYork:
(1) That in thehiring ofemployeesforthe performanceofworkunder thiscontractor any subcontract hereunder, neitherthe contractor, subcontractor,nor any person acting on behalfof such contractor or subcontractor, shall by reasonof race, creed,color, sexornational origindiscriminate againstanycitizen of theState of New York who is qualified and available to perform the worktowhich the employment relates;
(2) That no contractor, subcontractor,nor anyperson on hisbehalf shall,in anymanner, discriminate against or intimidate any employee hired for the performance of work under thiscontractonaccountof race, creed, color, sexornational origin;
(3) That there maybedeductedfrom theamount payable to the contractor by the state or municipality under this contract a penalty of five dollars for each person for each calendardayduring which such person was discriminatedagainst orintimidated by the contractor or subcontractor, or anyone acting on behalf of the contractor in violation of theprovisions of the contract;
(4) That thiscontract maybe cancelled or terminated by thestate or municipality, andall moneys due or to become due hereunder may be forfeited, for a second or any subsequentviolation of the terms orconditions of this section of thecontract;
(5) The aforesaid provisionsofthissectioncoveringevery contract foror onbehalf of the state or a municipality for the manufacture, sale or distribution of materials, equipment or supplies shall be limited to operations performed within the territorial limits of the State ofNew York; and
(6) That the Board is, for purposes of this subparagraph C., a "state or municipality." (Rev. 11/25/96)
38. Equal Employment Opportunity Requirements for Professional Contractors
A. Definition ofTerms fortheImplementationof a Programof Affirmative Action.
Thefollowingterms, whenusedin this paragraph, shall havethe meaningsgiven for them.
(1) "Employee": Any personemployed fullor part-timeinanycapacityby theContractor orsub-contractor.
(2) "Minority GroupsandAffectedClasses": Blacks, Hispanics (Non-European), Asian Americans, American Indians, females andindividualswith handicappingconditions.
(3) "Program of Affirmative Action":A detailed,result-oriented set of written procedures submitted by a Contractor orsub-contractor whichwhen implemented with conscious effort results in compliance withthe Equal Opportunity Policy herein, through full utilization andequal treatment of minorities, women and individuals with handicappingconditions atall levels and in allsegments of the Contractor's or sub- contractor'swork force. An effective Program of Affirmative Actionshall include but not necessarily be limited to, the following elements (Rev. 9/20/88):
(a) Development or reaffirmationof the Contractor's or sub-contractor's Equal Opportunity Policy;
(b) Dissemination of thePolicy;
(c) Responsibility forimplementation;
(d) A surveyand analysisof employmentat all levelsand in all categories and aspectsofthe Contractor's orsub-contractor's work force,whichdetermines if andat which levels, categories,andaspects there is an underutilization of minority andfemale employees;
(e) An analysisofemployment policies andpractices, including but notlimited to seniority systems, recruitment, training, promotion, insurance and job benefits andtheir effects upon minorities, women and individuals with handicapping conditions;
(f) Corrective actions taken,or to be taken, toward the elimination of any employment policy or practice havinga discriminatory effect on minority group members andwomen; and
(g) Description of the Contractor'sefforts to engage, as sub-contractors, bona fide minority business enterprises and female enterprises.
(4) “Goals and Timetables”: Projected levels of achievement resulting from an analysis by the Contractor or sub-contractor of deficiencies, and of what it can reasonably do to remedy them within a specified time period.
(5) “Underutilization”: Having fewer minorities, women and individuals with handicapping conditions in a particular job classification than would reasonably be expected by their availability in the appropriate labor force.
(6) “The Office”: The Office of Equal Opportunity of the Board.
B. Required Program ofAffirmativeAction
(1) The Contractor is required to identifyand eliminate overt and covert discriminatory practices and implement the Program of AffirmativeAction. Upon demand of the Office the Contractor shall submit to the Office a detailed written Program of Affirmative Action(hereinafter referred toasa "P.A.A."). In the eventthe Contractor submits aP.A.A. notacceptable totheOffice, the Officewillrequire thecorrection or revision of the P.A.A.to itssatisfaction.
(2) In the eventthe Contractorfailstosubmitsuch an acceptableP.A.A.withinthe time specified in the demand, theContractor may be declared in default. The Director shallbe the solejudge of theP.A.A.'s acceptability. TheP.A.A. shall:
(a) Apply to all Board of Education professional services contracts with the Contractor;
(b) Encompass all phases of the employment process, including evaluationof job classification to ensure jobrelatedness, recruitment, selection,validityof examinations, retention,layoffs, seniority, assignments, training,promotion, salaryand benefits;
(c) Fulfill the followingrequirements:
(i) Includemeasurable goals, reasonable timetables and specific programs to be implemented by the contractorto identify and eliminatedeficiencies in employment practices withrespect to the underutilization of members of minoritygroups and membersof affected classes;
(ii) Include a statementof the present utilizationof minority group members and womenintheContractor's work force and aprojection of the minority utilizationin theContractor’s work force forthe life of the Contract andfor at least aone-year period succeeding its completion.This statement and projection shallinclude present and projected (1) rates of hiring and promotion of minority group membersandwomen in specificjob categories at eachwage rate within eachlevel of employment and according to major organizational unit, and(2) percentages of minority group and women utilizationin specificjobcategoriesateach wagerate within each level of employment, and according to majororganizational workforce;
(iii) Include all of theContractor's facilities within NewYork City as well as thosefacilities located elsewhere within the continental limits of theUnited States;
(iv) Specify the union(s) or otheremployee organizations to which the Contractor's employees belong,and shall include commitments to good faith effortsto effect Equal Opportunity changesdirectly or indirectly, in programs by such unions or organizations to recruit, train, qualify orotherwise select members, if such changesare deemed necessary. The P.A.A. shall also include a copy of any agreement withan employee association which affects employment policies and practices;
(v) Be submitted insuch format asshall be specified bytheDirector of the Office;
(vi) Include a commitmentto submit totheDirector aseparate P.A.A., of the form(i)to(v)hereof,for eachsubcontractor prior to approval of thesubcontractorby the Boardof Education;
(vii) Include a written evidence orproofwhich shows that minority entrepreneurs havebeen solicitedand given an equal opportunityto submitproposals and that such proposalshave beengivenequal considerationforaward;
(viii) Contain commitments as to goals for minority and affected classes employment and adoption of equal employment practices not less strict than the commitments contained inthe Contractor'smost recentP.A.A. whichwas approved by the Office.
C. Compliance InspectionReport
UpondemandoftheOffice theContractor shall,within thespecified time,submit totheOffice aCompliance Inspection Report. The completedCompliance Inspection Report must be returned to the Office within such timeas is specified in the requisitionfor information accompanying the report form.
D. Conferences
TheContractor shall attendsuchconferences asshall be requiredby theOffice for the purposeof acquaintingit with thestatutory and contractual requirementsand whatspecific measures shall constitute an acceptable P.A.A.
E. Implementation ofP.A.A.
During the Term of the Contract, the Contractor shall successfully implement the P.A.A. approved by theOffice.
F. Default
If, in the opinion of the Office, theContractor has breached any of the requirementsof paragraphs 36 or 37 hereof it may seek to have the Contractor declared in default bythe Chancellor's designee as provided elsewhere herein. (Rev. 10/10/02)
For further information concerning these rules, regulations or procedures, contractorsmay consult with theOffice ofEqual Opportunityof theBoard.
39. MacBride PrinciplesProvisions forBoardof Education Contractors
ARTICLE I. MACBRIDE PRINCIPLES
PARTA
In accordancewithsection 6-115.1 of the Administrative Code oftheCity of NewYork, the Contractor stipulates thatsuch Contractor and any individualor legalentity in which the Contractor holds a ten percent or greater ownership interest and any individualor legal entity that holds a ten percent or greater ownership interestintheContract either(a) havenobusiness operationsinNorthern Ireland, or (b)shall takelawful steps ingood faith to conduct anybusiness operations theyhave in Northern Ireland in accordance withthe MacBride Principles, andshallpermit independent monitoring of their compliance withsuchprinciples.
PARTB
For purposesofthis section, thefollowing termsshall have thefollowing meanings:
"MacBride Principles"shall mean those principles relating to nondiscrimination in employment and freedomofworkplace opportunitywhich require employers doingbusinessinNorthern Irelandto:
(1) increase the representation of individuals from underrepresented religious groups in the work force, including managerial, supervisory, administrative, clerical and technical jobs;
(2) take steps to promote adequate security for the protection of employees from underrepresented religious groups both at the workplace and while traveling to and from work;
(3) ban provocative religiousorpoliticalemblemsfrom theworkplace;
(4) publicly advertise all job openings and make special recruitment effortsto attractapplicants fromunderrepresented religious groups;
(5) establish layoff, recalland termination procedureswhich do not in practice favora particular religiousgroup;
(6) abolish all job reservations, apprenticeship restrictions anddifferent employment criteria whichdiscriminateon the basisofreligion;
(7) develop training programs that will prepare substantial numbers of current employees from underrepresented religious groupsfor skilled jobs, including theexpansionof existing programs and the creation ofnew programs to train, upgrade and improve the skills of workersfrom underrepresented religious groups;
(8) establish procedures to assess, identify and actively recruit employees from underrepresented religious groups with potential forfurther advancement;and
(9) appoint a senior management staffmemberto oversee affirmativeaction effortsanddevelop atimetableto ensuretheir fullimplementation.
ARTICLE II. ENFORCEMENTOFARTICLE I.
The Contractor agrees that the covenants and representations in Article Iabove are material conditions tothis contract. In the event thecontracting entityreceives informationthattheContractor who made thestipulation requiredby this sectionis in violation thereof,the contracting entity shall review such information and givethe Contractor an opportunity to respond. If thecontracting entity findsthat a violation has occurred, theentityshall have the right to declare the Contractor in default and/or terminate this contract for cause and procure the supplies, servicesor work from another sourcein any mannerthe entity deems proper. In theeventof such termination, the Contractor shall payto theentity,or theentityinitssolediscretionmaywithholdfrom anyamounts otherwisepayable to the Contractor, the difference between the contract price for the uncompleted portion of this contract andthecost to thecontracting entity of completingperformance of this contract either itself or by engaging another contractor or contractors. Inthecaseofa requirements contract,the Contractor shall beliable for suchdifference in price forthe entireamount of supplies required by the contracting entityfor theuncompleted term ofitscontract. Inthecase of aconstruction contract, thecontracting entity shall also have the right to hold the Contractor in partial or total default inaccordance with the defaultprovisionsof this contract, and/ormay seek debarmentorsuspension of the Contractor. The rights and remedies oftheentity hereunder shallbein addition to, and not in lieu of, any rights and remedies the entity has pursuant to this contract or by operation of law. (8/92)
40. Set-Off Rights
TheBoard shall have all of its common law,equitableand statutory rightsof set-off. Theserights shall include,but not be limited to, the Board's option to withhold for the purposes of set-off any moneys due and owing to the Board with regardto this Agreement, any other agreementwiththe Board, including anyagreementfor a term commencing prior to the term ofthis Agreement, plus any amountsdueand owing tothe Boardforanyotherreason. The Board shall exercise its set-offrights in accordance with normal Board practices including,in cases of set-off pursuant to an audit. the finalization ofsuch auditby theBoard, its representatives,orthe Stateor CityComptroller. (1/95)
41. Non-Collusive Bidding
If this Agreement was awarded by the Board based upon the submission ofbids or proposals, Contractorwarrants under penaltyofperjury, that its bid or price quotation was arrivedat independently andwithout collusionaimed atrestricting competition. (10/92)
42. Intentionally LeftBlank (Burma Provision Deleted9/6/01)
43. Intentionally LeftBlank (Year 2000 Compliance RequiredDeleted 11/27/02)
44. Fair andEthical Business Practices
A.Fairand Ethical Business Practices shall be strictly adhered to during the term of this Agreement. During the termof thisAgreement, Contractor shall not:
(1) File with a government office or employee, a writteninstrumentwhichintentionally contains afalse statement orfalse information;
(2) Intentionally falsify business records;
(3) Give, or offer to give, money, giftsoranything of valueoranyother benefitto a labor official or publicservant with intent toinfluence that labor official orpublic servant with respect toany of hisor herofficial acts, dutiesor decisions as a labor official or public servant;
(4) Give or offer togive, money, giftsor anything ofvalueor any otherbenefittoa labor official or public servant forany reason;
(5) Give, or offerto give, money, giftsor other benefit(s) to an official or employee ofa privatebusinesswithintentto induce that official or employee to engage in unethical or illegal business practices;
(6) Knowingly participatein the criminal activitiesof any organizedcrimegroup, syndicateor "family," nor shall anypersonemployed by orassociated withany such organized crime "family," syndicate or group participate through criminal meansin any of the businessaffairs ofContractor.
B. Contractor certifiesthroughoutthe term ofthis Agreement, that therehavebeen no changes in circumstances, conditions or status of Contractor's qualification(s) as reflected in ContractorQuestionnaire or othersuch documents submitted to the Board. Any change in the information provided by Contractorin its questionnaire currently on file with the Board mustbeimmediately reported to the Board. Inaddition, Contractorshall immediately notify the Boardof anyof thefollowing events if it becomes known thatany director,partner, officer, member or employee of Contractor, or any shareholder owning 5% of more of Contractor's membership interests:
(1) is the subjectof investigation involvingany violation of criminal law or other federal, stateorlocal law or regulationby anygovernmental agency; or
(2) is arrested, indictedor named as an unindicted co-conspirator in any indictment or other accusatory instrument; or
(3) is convicted of any felony under state or federal lawand/oranymisdemeanor involving abusiness-related crime. (10/8/98)
45. Indemnification Language
The Contractor shall defend, indemnify and hold the Departmentand the City harmless fromand against any and all claims, suits, damages, judgments, liabilities, costs, and expenses, including reasonableattorneys' fees, towhich theymay be subjectbecauseof or relatedto anyclaim thatthe Copyrightable Materials or theiruse constitutes an infringement by theContractorora violation by the Contractor of the copyright, patent,trademark,or any otherproperty orpersonal right of anythird party. For the purposes of this provision, "Copyrightable Materials" shall include any reports, documents, data, photographs, software,and/or other materialsprovided pursuanttothisagreement, regardless of whether the copyrightin suchmaterialsis or shallbe ownedby theDepartment,the Contractor,or third parties.This indemnification shall survive the termination or expiration of this Agreement. This indemnification provisionshall not be limited in any way bytheContractor's obligationsto obtain insurance as provided under this Agreement. Furthermore, Contractor shall defend and settleat its soleexpense all suits orproceedings brought against Contractor arisingout of theforegoing. However, in casesinvolvingsoftware, nosuchsettlement shall be made thatprevents theDepartmentfrom continuing to use the software withoutthe Department's priorwrittenconsent, which consent shall notbe withheld unreasonably.1/15/03
46. Dispute ResolutionProcedure
A. In the eventtheContractor and the Board areunableto resolve their differences concerning a determinationby the Board, theContractor may initiate a disputein accordance with the procedure set forth in this Section 46. Exhaustion of these dispute resolution procedures by Contractor shallbea precondition toanylawsuit permitted hereunder.
B. The DisputeResolutionOfficer("DRO") selected bythe Executive Director ofthe Division of Contracts and Purchasingshallbe authorized to decide all questions of any nature whatsoeverarising out of,under orin connectionwith, orin anyway relatedtooronaccount of, thisAgreement (including claims in the nature of breach of contract or fraud or misrepresentation before or subsequent to contractaward)and the DRO 's decision shall be conclusive,finaland binding on the parties. The DRO's decision may be based on such assistance as s/hemay find desirable, includingadvice of experts. Theeffectof the DRO's decision shallnot be impaired or waived by any negotiations or settlement offers in connection therewith, or by any prior decision of others, which prior decisions shall be deemed subject toreview, orbyany termination orcancellation ofthis Agreement.
C. All suchdisputes shall besubmittedin writing bytheContractortotheDRO, togetherwith all evidence and other pertinent informationwith regard to suchquestions, in orderthata fair and impartial decisionmay be made. TheBoard Contract Manager may submit tothe DRO all materials that s/he deemspertinentto the dispute. TheDRO shall render a decision in writingand delivera copy of sameto theparties withinforty-five(45)days of the conclusion of submissionof all materialsand information, or such longer timeasmay be agreed toby the parties. In an unusually complex case, the DROmay render his or her decisionin a longer period of time,not to exceed ninety (90)daysor such longer time as maybe agreed to by the parties, and shall so advise the parties at the commencementof this period. The DRO 'S decision shallbe deemedafinal agencyaction.
D. During such timeas any disputeis being presented, heard, and consideredpursuant to this Section 46, the terms of this Agreement shall remain in full force and effect andthe Contractor shallcontinuetoprovideanyservices in accordancewith thisAgreement.Failure oftheContractor tocontinue to provide services shall constitute a material breachof contract.
E. If the Contractor protests the determination of the DRO, the Contractor may commencea lawsuitin SupremeCourt, Countyof NewYorkunder Article 78of theNew York Civil Practice Law andRules. Such reviewofthe Court shallbe limitedto the question of whether ornot the DRO 's decision was made in violationof lawful procedure,wasaffected by an error of law, or was arbitrary and capriciousor an abuse ofdiscretion. No evidence or information shall be introducedor relied upon in such an action or proceedingthat has not been presentedto theDROpriorto the making of hisorherdecision.
