Exhibit 99.1
STATE OF NEW YORK
NEW YORK STATE DEPARTMENT OF LABOR
COMPTROLLER'S CONTRACT NO. C000140
WITH CLEARBLUE TECHNOLOGIES MANAGEMENT, INC.
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is entered into by and
between ClearBlue Technologies Management, Inc. ("ClearBlue") and the New York
State Department of Labor (" Department"). In consideration of the terms and
conditions and mutual promises contained herein, the parties agree as follows:
1. SCOPE OF AGREEMENT
1.1 This Agreement shall be implemented through one or more Statements of Work
entered into, from time to time, by ClearBlue and the Department. Each Statement
of Work shall specify the services to be performed by ClearBlue ("Services").
Software programming and development services ("Software Development Services")
will be performed on a time and materials basis. Other related Services
including "Web Hosting" and "Internet Access" shall be performed on a fixed
price basis. The initial description of work to be performed ("Scope of Work"),
attached hereto as Appendix B and hereby incorporated by reference, sets forth
the overview of work to be completed during the term of the contract. Specific
Statements of Work will become effective upon execution by authorized
representatives of both parties.
1.2 The parties shall jointly develop specified plans for each project ("Project
Plans") which shall identify the deliverables, including a description of the
work to be performed, the personnel assigned to perform the work, the time
frames for completion of each step in the project and any other relevant factors
or contingencies that may be required. ClearBlue shall deliver an updated
Project Plan to the Department on a bi-monthly basis. The parties agree and
understand that the nature of the services further requires that the Project
Plans may be modified as reasonably requested by the Department and the U.S.
Department of Labor. These changes may result in modifications to the Project
Plan, deliverables, associated work plans, resource allocations, schedules and
costs. Any modification to a Project Plan must be set forth in writing and
agreed to by the parties. All time periods for completion of work as well as
acceptance and testing set forth in a Project Plan shall be amended in
accordance with the modified Project Plan.
2. DEVELOPMENT OF THE WORK
2.1 ClearBlue shall develop the software (the "Software") and perform all other
Services specified in each Statement of Work and Project Plan subject to and in
accordance with the terms of this Agreement. ClearBlue shall exercise best
efforts to deliver the Services and other deliverables set forth in a Project
Plan (together, the "Deliverables") according to the delivery schedule set forth
in such Project Plan (the "Delivery Schedule"). Changes in scope of the
deliverables, requirements, functional specifications, personnel resources or
schedule will result in amended plans as either jointly developed by the parties
or as submitted by ClearBlue and not objected to in writing by the Department
within five (5) business days.
2.2 The Department shall provide to ClearBlue such information and cooperation
as ClearBlue may reasonably request to assist ClearBlue in the development of
the Deliverables, and ClearBlue may use such information in connection with such
development. In the event of a delay by the Department in providing such
information to and cooperation with ClearBlue or in approving the Deliverables
within the time set forth in this Agreement, or in the event of a delay caused
by third parties, the delivery date for the affected Deliverables shall be
deemed postponed for at least an equivalent period and the Delivery Schedule
shall be amended accordingly. Where such delays impact other projects and/or
deliverables all plans shall be modified as appropriate.
3. TERM AND TERMINATION
3.1 This Agreement shall commence on June 15, 2005 and, unless earlier
terminated pursuant to Paragraphs 3.2, 3.3, 3.4 or 4.5, continue for a period of
two years.
Page 1
3.2 Either party may terminate this Agreement by written notice if the other
party commits a material breach of any of its obligations under this Agreement
and has not remedied such breach within thirty (30) days of receiving written
notice of the breach.
3.3 Either party may terminate this Agreement by written notice if the other
party shall cease conducting business in the normal course, become insolvent or
bankrupt, make a general assignment for the benefit of creditors, suffer or
permit the appointment of a receiver for its business or assets, or become the
subject of any proceeding relating to insolvency or the protection of creditors'
rights which is not dismissed within sixty (60) days.
3.4 The Department may terminate this Agreement without cause within (60) sixty
days prior written notice.
3.5 Termination of this Agreement shall not relieve the Department of its
obligation to pay charges that accrued prior to termination except to the extent
such charges relate to services that form the basis for termination of this
Agreement for cause pursuant to Paragraph 3.2.
4. COMPENSATION AND PAYMENT TERMS
4.1 Payment to ClearBlue shall be made monthly in arrears for all time and
materials expended by ClearBlue during the preceding month. Any estimated time
requirements for such work which are set forth in the Statement of Work are
solely ClearBlue's estimate, and should not be construed as a limitation on
services or a cap on fees. The Department shall pay ClearBlue one flat monthly
fee in arrears for Web Hosting, Internet Access, or other fixed-priced Services.
The Department shall pay ClearBlue for all authorized expenses incurred by
ClearBlue in connection with performance hereunder. The Department will pay the
amount stated in each invoice within thirty days of date of invoice in
accordance with paragraph 15 of Appendix A, which is attached hereto and hereby
incorporated by reference.
4.2 The rates charged for services including time and materials are set forth in
Appendix C, which is hereby incorporated by reference. The rates shall remain
fixed at the same rates for a period of one year. The parties agree to negotiate
in good faith annually for rates applicable for the next succeeding year. In no
event shall any rate increase exceed the Consumer Price Index for the location
at which work is performed. ClearBlue hereby warrants that such rates represent
the most favorable pricing terms available to any of its customers for similar
quantity and quality of services and shall reduce its prices to the lowest price
given to any other customer for the same products and Services in similar
quantities and qualities.
4.3 The charges do not include taxes or duties. The Department is exempt from
the payment of federal, state and local taxes. The Department shall not be
responsible for paying taxes based on ClearBlue's net income.
4.4 If the Department fails to pay any sum due under a Statement of Work, any
late payment fees shall be determined in accordance with Article 11-A of the
State Finance Law.
4.5 In accordance with section 41 of the State Finance Law, the State shall have
no liability under this contract to ClearBlue beyond funds appropriated and made
available for this contract by the New York State Legislature pursuant to
revenue contracts, or one or more grants issued by the U.S. Department of Labor
to the Department.
4.6 The anticipated scope of the contract provides for expenditures of up to
Twenty-Three Million Two Hundred Thirty Thousand Dollars ($23,230,000) during
the term of this Agreement as set forth in Appendix B.
5. STAFFING BY EACH PARTY
5.1 When members of one party's staff are employed on the premises of the other
party, they will comply with such rules and regulations of which they are
notified for the conduct of staff on those premises.
5.2 All members of both parties' staff participating in the performance of the
Services will possess the appropriate skills, authority and experience for the
tasks assigned to them, and will be available at such times as are agreed by the
parties.
5.3 Where required under a Statement of Work, each of the parties will provide
appropriate office
Page 2
accommodations, equipment and support to members of the other party's staff.
5.4 Upon execution of this Agreement, each party shall designate a member of its
staff as contract coordinator, responsible for all administrative matters
relating to this Agreement and the Services. Additionally, each party shall
designate a member of its staff as Project Manager who will have the authority
to represent such party on all technical and staffing matters relating to the
Services. A party may change its designated coordinator or project manager on
notice to the other party.
6. DELIVERY OBLIGATIONS; ACCEPTANCE
6.1 ClearBlue shall deliver to the Department one copy of the Software in object
code form, and one copy of the Software in Source Code Form at the time
completion of work for each Deliverable set forth in the Project Plan for
acceptance testing. For purposes hereof, the term "Source Code Form" shall mean
a well-documented listing in printed form of the source code (i.e., human
intelligible version) of the Software, the related instructions and compilers
necessary for building that software into object code and written materials
sufficient to permit a person skilled in the language of the source code to
follow and understand the theory and sequence of program operation and to
maintain and modify the program. Upon termination of this Agreement, the
Department shall retain the Software and the Source Code Form for its continued
and uninterrupted use and development subject to the license provisions of
Section 12.
6.2 Upon delivery to the Department of a Deliverable, the Department shall have
fifteen (15) days to conduct acceptance testing and approve or reject such
Deliverable. A Deliverable shall include all functional specifications (and, if
applicable, performance specifications) set forth in a Project Plan. The
Department shall deliver to ClearBlue a written notice of either acceptance or
rejection within such period. The Department may not reject a Deliverable unless
such Deliverable fails to comply materially with the relevant specifications or
other descriptions contained in a Project Plan and Statement of Work. A
Deliverable shall not be rejected for bugs that do not affect the operation of
the Software in accordance with the Project Plan and Statement of Work in any
material respect. If the Department rejects any Deliverable, its notice of
rejection shall include the reasons for its rejection and the Department shall
return the rejected Deliverable to ClearBlue. ClearBlue shall make best efforts
to correct and/or replace such Deliverable promptly. This process shall continue
until the Department approves the Deliverable without any additional costs
beyond that specified for the anticipated hours set forth in a Project Plan. Any
modification to a Project Plan must be set forth in writing and agreed to by the
parties. All time periods for completion of work as well as acceptance and
testing set forth in a Project Plan shall be modified in accordance with the
modified Project Plan.
7. INFRINGEMENT INDEMNITY
7.1 ClearBlue shall defend, indemnify and hold harmless the Department against
any claim that any information, design, specification, instruction, software,
data, or material furnished by ClearBlue ("Material") and used by the Department
infringes a copyright, patent,. or trademark, provided that: (a) the Department
notifies ClearBlue in writing within thirty (30) days of the claim; (b)
ClearBlue has control of the defense and all related settlement negotiations;
and (c) the Department provides ClearBlue with the assistance, information, and
authority reasonably necessary to perform the above. The Department shall be
reimbursed by ClearBlue for any reasonable out-of-pocket expenses incurred by
providing such assistance. The Department may participate in the defense of and
settlement negotiations relating to any such claim, at its own expense.
A. ClearBlue shall have no liability for any claim of infringement resulting
from: (a) the Department's use of a superseded or altered release of some or all
of the Material if infringement would have been avoided by the use of a
subsequent unaltered release of the Material which ClearBlue has provided to the
Department; or (b) any information, design, specification, instruction,
software, data, or material not furnished by ClearBlue.
B. In the event that some or all of the Material is held or is believed by
ClearBlue to infringe, ClearBlue shall have the option, at its expense: (a) to
modify the Material to be non-infringing; or (b) to obtain for the Department a
license to continue using the Material. If it is not commercially feasible to
perform either of the above options, then ClearBlue may require that the
Department return the infringing Material, and all rights of the Department
thereto shall cease. Upon return of the infringing Material to ClearBlue, the
Department may terminate the affected Statement of Work upon ten (10) days'
written notice and: the Department shall be entitled to a refund of the fees
Page 3
paid for the Deliverables which contain the infringing Material. This section
states the parties' entire liability and exclusive remedy for infringement.
8. REPRESENTATIONS AND WARRANTY
8.1
A. Expertise. ClearBlue represents and warrants that it is highly skilled and
experienced in performing the services described in the Statements of Work and
Project Plans. ClearBlue acknowledges that the Department is relying upon the
skill and expertise of ClearBlue for the performance of this Agreement.
ClearBlue warrants that it will perform the services described herein in a good
and workmanlike manner and in accordance with the specifications contained in
the Statement of Work and Project Plans.
B. Non-Infringement of Third Party Rights. Services provided under this
Agreement will not violate or in any way infringe upon the rights of third
parties, including property, trade secrets, proprietary rights and nondisclosure
rights, or any trademark, copyright or patent rights.
C. ClearBlue does not warrant that the Work will operate at all times without
interruption or will be error free.
D. ClearBlue warrants that the Web Hosting and Access Service will perform in
accordance with the service descriptions contained in Appendices F and G.
8.2 Additional work on the Deliverables authorized by the Department will be
charged on a time and materials basis in accordance with the consulting rates
established herein.
8.3 The warranty herein is exclusive and in lieu of all other warranties,
whether express or implied. CLEARBLUE HEREBY DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
9. ALLOWANCE FOR SERVICE INTERRUPTIONS (ACCESS AND WEB HOSTING)
9.1 The Department's sole and exclusive remedy for Service interruptions in
connection with Access and Web Hosting Services will be credits based upon the
accumulated interruption of Service, measured from the time of notification to
the ClearBlue Customer Support Center ("CSC") to the restoration of Service as
described below. Any claim for credit must be submitted in writing by the
Department to ClearBlue within ten business days of the interruption.
A. If the accumulated interruption of Service is equal or greater than one (1)
hour, but less than four (4) hours in any one day, Department shall receive a
credit equal to the pro-rated monthly charges for the period that such
interruption existed.
B. If the accumulated interruption of Service is more than four (4) hours in any
one day, Department shall receive a credit equal to the pro-rated charges for
one (1) day's service.
C. If the accumulated interruption within any seven (7) day period equals or
exceeds ninety-six (96) hours, Department shall receive a credit equal to the
pro-rated charges for 1 week's Service or may terminate the affected Access or
Web Hosting Service with no penalty.
The Department shall not receive credit if an interruption is (a) caused by the
negligence or willful misconduct of the Department or others authorized by the
Department to use the Services provided by ClearBlue; (b) due to a failure of
power, or any problem of any type occurring at the Department's side of the
Service Demarcation; (c) caused by the failure of access to ClearBlue's network,
unless such failure is solely caused by ClearBlue; (d) a result of scheduled
maintenance, or (e) due to any cause beyond ClearBlue's control. The Department
shall also not receive credit if correction of the problem requires access to
the Department's premises and such access is denied or delayed by the
Department.
ClearBlue provides no service level guarantees or credits for optional or
additional services including POP mail and Network News and temporary outages
may occur as a result of scheduled or unscheduled maintenance.
Page 4
ClearBlue shall provide the Department with a report setting forth the reason
for any outage including the time period of any outage and the plan for
preventing reoccurrence of such outage in the future within five days.
10. LIMITATION OF LIABILITY
10.1 In no event shall either party be liable for any indirect, incidental,
special, or consequential damages, or damages for loss of profits, revenue,
data, or use, incurred by the other party or any third party, whether in an
action in contract or tort, even if such party has been advised of the
possibility of such damages.
10.2 ClearBlue's liability for damages hereunder shall in no event exceed the
lesser of $10,000,000 or the amounts paid for the Deliverables under the
applicable Statement of Work; provided however that ClearBlue's liability for
damages with respect to Section 7 and sub-Section 10.4 herein shall be without
limitation.
10.3 The provisions of this Agreement allocate the risks under this Agreement
between ClearBlue and the Department. The Department acknowledges that
ClearBlue's pricing reflects this allocation of risk and the limitations of
liability specified herein.
10.4 ClearBlue shall fully defend, indemnify and save harmless the Department
from suits, actions, damages and costs of every name and description relating to
personal injury, damage to real or personal tangible or intangible property, or
any other claim for direct damages arising as a result of acts or omissions of
ClearBlue, its officers, employees, subcontractors, partners or agents.
11. NON-DISCLOSURE
11.1 The parties may provide to one another information that is confidential
("Confidential Information"). Confidential Information shall be limited to
information clearly identified in writing as confidential when delivered.
Confidential Information shall not include information which: (a) is or becomes
a part of the public domain through no act or omission of the receiving party;
(b) was in the receiving party's lawful possession prior to the disclosure and
has been obtained by the receiving party either directly or indirectly from the
disclosing party; (c) is lawfully disclosed by the disclosing party to a third
party without restriction on disclosure; (d) is independently developed by the
receiving party; or (e) is disclosed by operation of law. The parties agree to
hold each other's Confidential Information in confidence while the Services are
being performed and for a period of three years thereafter provided; however,
Software and Source code shall be subject to the provisions of Section 12 and
the Sub-License Agreement and held in confidence in perpetuity.
11.2 The Department shall: (a) keep confidential the Software and the source
code therefor, and limit access to the same to those of its employees, agents
and subcontractors who are engaged in the use of the Software and shall not,
except as expressly permitted herein, publish, communicate or disclose, or
permit to be published, communicated or disclosed, to third parties such
information and data without ClearBlue's prior written consent; (b) reproduce on
any copy of the Software copyright notices; and (c) notify ClearBlue immediately
if the Department becomes aware of any unauthorized use of the whole or any part
of the Software.
12. PROPRIETARY RIGHTS
12.1 Definitions.
(a) "Deliverables." Shall mean any items to be delivered by ClearBlue to the
Department under this Agreement.
(b) "Field of Agreement" The limited field of marketing and licensing the
Software to third parties for the purpose of providing services relating to
government-sponsored job searches, including management of "welfare-to-work"
programs, collection of labor market information and tracking of employers, job
seekers and job training programs under federal and state programs.
(c) "Software" Shall mean the software ClearBlue provides to the Department
including that provided under previous agreements as more particularly described
in Appendix F hereto, which is hereby incorporated by reference, including all
modifications, enhancements and revisions to such software made by or through
either of
Page 5
the parties hereto.
12.2 Ownership by the Department. All Software and Deliverables developed by
ClearBlue under this Agreement will be owned by the Department, will be
considered, where applicable, to be "works made for hire" as defined in the U.S.
Copyright Act, are hereby assigned to the Department; provided, however, that in
the event the Department shall fail to make any of the payments required by this
Agreement, such assignment shall be null and void, and such Software,
Deliverables and the copyrights thereto will be automatically reassigned to
ClearBlue. Each party agrees to execute all papers and perform all other acts
reasonably necessary to assist the other to obtain and register copyrights and
to effectuate the intention of this Agreement. Notwithstanding the foregoing,
ClearBlue will be free, at any time, to use for any purpose any technical and
business knowledge, skill, expertise and processes of a generic nature acquired
by ClearBlue in its performance under this Agreement.
12.3 Use of Residuals. ClearBlue shall be free to use Residuals for any purpose,
including the use in development, manufacture, marketing, and maintenance of its
own products and services. "Residuals" shall mean any intellectual property
contained therein or relating thereto (including the function, structure,
sequence, or organization thereof), which may be retained in intangible form
(i.e., not in written or other documentary or electronic form) by ClearBlue
personnel, as applicable, having had access to it.
12.4 Grant-Back License. ClearBlue shall have the right, and the Department
hereby grants ClearBlue a fully paid, perpetual, irrevocable, transferable
license, with the right to sublicense, to use, modify, enhance, improve, market
and sublicense Components of the Software and Deliverables for any purpose
(other than providing services in the Field of Agreement or enabling any other
person or entity to provide services in the Field of Agreement during the term
of this Agreement.) The preceding sentence shall not limit ClearBlue's right to
use modify, enhance, improve, market and sublicense Components of the Software
and Deliverables which come into the public domain other than through the fault
of ClearBlue. For the purposes of this paragraph, "Component" shall mean a
software object (function, procedure, etc.) that forms a constituent or basic
building block of a larger software program, that contains a number of lines of
programming that together perform one simple or elemental function, that is not
so complex that it might be considered a program in and of itself (i.e. a search
engine).
12.5 Third-Party Software. To the extent that any software owned by third
parties ("Third-Party Software") is incorporated in the Software or otherwise
necessary for the operation of the Software, the Department shall be responsible
for obtaining appropriate licenses for the use of such software at its own cost
and expense; provided, that with respect to any Third-Party Software for which
ClearBlue has the right to grant sublicenses, ClearBlue hereby grants to the
Department the right to use such Third-Party Software solely in connection with
its use of the Software in accordance with this Agreement and the Department
shall pay to ClearBlue any fees payable in connection with such grant.
12.6 Deliverables. ClearBlue will deliver to the Department one copy of the
Software in object code form, and one copy of the Software in Source Code Form.
For purposes hereof, the term "Source Code Form" shall mean a well-documented
listing in printed form of the source code (i.e., human intelligible version) of
the Software, the related instructions and compilers necessary for building that
software into object code and written materials sufficient to permit a person
skilled in the language of the source code to follow and understand the theory
and sequence of program operation and to maintain and modify the program.
13. ADDITIONAL SERVICES
13.1 ClearBlue shall provide web hosting services to the Department including
hardware, software, networking, and help desk services for national and state
sites and for Association sites, ACINet and ALX at rates set forth in Appendix C
and in accordance with the Service Description contained in Appendix G, attached
hereto and hereby incorporated by reference. ClearBlue shall, upon request and
approval of the Department, purchase equipment in support of the web hosting
site on behalf of the Department at competitive market prices and, where
applicable, pursuant to State centralized contracts. Such equipment shall reside
at ClearBlue's web hosting facilities during the term of the Agreement. Title
and ownership to all equipment purchased under the contract shall vest with the
State of New York. Such equipment shall be returned to the Department at the
termination of the contract or upon removal from service, whichever is earlier.
ClearBlue will invoice the Department for all labor and expenses incurred by
ClearBlue related to de-installation, packaging, and shipping of the
Department's equipment.
Page 6
13.2 ClearBlue shall provide access to Internet service at rates established in
Appendix C and in accordance with the Service Description contained in Appendix
H, attached hereto and hereby incorporated by reference.
13.3 ClearBlue will provide, upon request of the Department, the services
specified herein to other states at such states sites in furtherance of the
terms of the Department's technical support responsibilities under federal
grants issued by the U.S. Department of Labor and in furtherance of technical
support responsibilities in accordance with agreements with other states. Such
services shall be provided pursuant to the rates and terms of this Agreement.
Those agreements with other states that are currently active, and for which
ClearBlue shall provide services, include: (a) Memorandum of Agreement between
New York State Department of Labor and the Rhode Island Department of Labor &
Training (Appendix M-1); and (b) America's One Stop Operating System Consortium
Charter (Appendix M-2). Attachment M-1 and Attachment M-2 are attached hereto
and incorporated herein.
14. YEAR 2000 DATE CHANGE WARRANTY
14.1 Definitions For purposes of this warranty, the following definitions shall
apply:
a. "Product" shall include, without limitation: any piece or component of
equipment, hardware, firmware, middleware, custom or commercial software, or
internal components or subroutines therein which perform any date/time data
recognition function, calculation, comparing or sequencing. Where services are
being furnished, e.g. consulting, systems integration, code or data conversion
or data entry, the term "Product" shall include resulting deliverables.
b. "ClearBlue's Product" shall include all Product delivered under this
Agreement by ClearBlue other than Third Party Product.
c. "Third Party Product" shall include Product manufactured or developed by a
corporate entity independent from ClearBlue and provided by ClearBlue on a
non-exclusive licensing or other distribution Agreement with the third party
manufacturer. "Third Party Product" does not include product where ClearBlue is:
a) a corporate subsidiary or affiliate of the third party
manufacturer/developer; and/or b) the exclusive re-seller or distributor of
product manufactured or developed by said corporate entity.
14.2 Warranty Disclosure
At the time of bid, Product order or Product quote, ClearBlue is required to
disclose the following information in writing to the Department:
a) For ClearBlue Product and for Products (including, but not limited to,
ClearBlue and/or Third Party Products and/or Department's Installed Product)
which have been specified to perform as a system: Compliance or non-compliance
of the Products individually or as a system with the Warranty Statement set
forth below; and
b) For Third Party Product Not Specified as Part of a System: Third Party
Manufacturer's statement of compliance or non-compliance of any Third Party
Product being delivered with Third Party Manufacturer/Developer's Year 2000
warranty. If such Third Party Product is represented by Third Party
Manufacturer/Developer as compliant with Third Party Manufacturer/Developer's
Year 2000 Warranty, ClearBlue shall pass through said Third Party Warranty from
the Third Party Manufacturer to the Department but shall not be liable for the
testing or verification of Third Party's compliance statement.
An absence or failure to furnish the required written warranty disclosure shall
be deemed a statement of compliance of the Product(s) or System(s) in question
with the Year 2000 Warranty Statement set forth below.
14.3 Warranty Statement
Year 2000 warranty 'compliance' shall be defined in accordance with the
following warranty statement:
ClearBlue warrants that Product(s) furnished pursuant to this Agreement shall,
when used in accordance with the Product documentation, be able to accurately
process date/time data (including, but not limited to, calculating, comparing,
and sequencing) from, into, and between the twentieth and twenty-first
centuries, and the years 1999 and 2000, including leap year calculations. Where
a purchase requires that specific Products must perform as a
Page 7
package or system, this warranty shall apply to the Products as a system.
In the event of any breach of this warranty, ClearBlue shall restore the Product
to the same level of performance as warranted herein, or repair or replace the
Product with conforming Product so as to minimize interruption to the
Department's ongoing business processes, time being of the essence, at
ClearBlue's sole cost and expense. This warranty does not extend to correction
of the Department's errors in data entry or data conversion.
This warranty shall survive beyond termination or expiration of the Agreement.
Nothing in this warranty shall be construed to limit any rights or remedies
otherwise available under this Agreement.
15. RELATIONSHIP OF PARTIES
15.1 ClearBlue is an independent contractor. Nothing in this Agreement shall be
construed to create a partnership, joint venture, or agency relationship between
the parties. Each party will be solely responsible for payment of all
compensation owed to its employees, as well as employment related taxes. Each
party will maintain appropriate worker's compensation insurance and unemployment
insurance for its employees as well as general liability insurance.
16. ASSIGNMENT
16.1 This Agreement may not be assigned or delegated by ClearBlue without the
prior written approval of the Department, which consent will not unreasonably be
withheld. Subject to the foregoing, this Agreement is binding on the parties and
their successors and assigns.
17. NOTICES
17.1 All notices, including notices of address change, required to be sent
hereunder shall be in writing and shall be deemed to have been given to
ClearBlue when mailed by first class mail to the following address:
ClearBlue Technologies Management, Inc.
Attn: General Manager
224 Harrison Street
Syracuse, NY 13202
17.2 Notice to the Department shall be sent to the address and to the person
identified as the Department Project Coordinator identified in the Statement of
Work.
18. GENERAL
18.1 This Agreement will be governed by and construed in accordance with the
laws of the State of New York, without reference to its choice of law rules.
18.2 This Agreement, including all exhibits, serves to document formally the
entire agreement between ClearBlue and the Department. As such, this Agreement
supersedes and replaces any prior or contemporaneous agreements, negotiations or
understandings (whether oral or written), relating generally to the same subject
matter. However, any licensing rights to software obtained by the Department
under such prior agreements are hereby transferred and incorporated into this
Agreement without any loss of rights established thereunder.
18.3 No modification of, or waiver of rights under, this Agreement will be
effective unless it is in writing and signed by the party against which
enforcement is sought. A waiver of a provision shall in no way be construed as a
waiver of any succeeding breach of such provision or a waiver of the provision
itself.
18.4 If any provision of this Agreement is determined to be invalid or
unenforceable, the validity or enforceability of the other provisions of this
Agreement shall not be affected; and, in such event, such provision shall be
changed and interpreted so as best to accomplish the objectives of such
provision within the limits of applicable
Page 8
law or applicable court decision.
18.5 Department acknowledges and agrees that in the development of the
Deliverables, ClearBlue may use one or more independent contractors upon the
prior approval of the Department.
18.6 Neither party shall be responsible for its failure to perform due to
circumstances or causes beyond its reasonable control, including, without
limitation, acts of God, wars, riots, embargoes, acts of civil or military
authorities, fires, floods, earthquakes, accidents, strikes, failure of
suppliers or shortages of transportation, facilities, fuel or energy.
18.7 Americans with Disabilities Act (ADA): ClearBlue shall comply with all
applicable requirements of the Americans with Disabilities Act (ADA), codified
at Title 42 of the United States Code, section 12101 et seq. and associated
regulations, including, but not limited to, those located in 28 C.F.R. Part 36.
ClearBlue shall comply with all applicable requirements of the New York State
Human Rights Law, codified in the Executive Law sections 290 301 and applicable
regulations implemented pursuant to that law. The successful bidder shall
warrant to the Department that the successful bidder is in compliance with both
the ADA and its regulations and the New York State Human Rights Law and its
regulations.
Any products developed as a result of this contract must be in a format that can
be converted for use by individuals with disabilities to meet the reasonable
accommodation standards established by the American with Disabilities Act.
18.8 Compliance with New York State Policy and Law: All work conducted under
this contract must be in compliance with the terms specified in the document
entitled "Appendix A, Standard Clauses for all New York State Contracts."
18.9 Responsibility Determination: Article 11 of the New York State Finance Law
requires that contracts be awarded to responsive and responsible bidders. Based
on contractor's responses to the Responsibility Questionnaire (Attachment D-2)
or subsequent Vendor Responsibility Questionnaires, the Department will
determine whether contractor is a responsible bidder. If you are ever
disqualified based on a determination of non-responsibility, you will be
notified in writing and may appeal the determination in writing within 10 days
to the Commissioner. If you fail to identify a violation and the Department
discovers the failure to disclose such violation, your contract may be
terminated immediately upon written notice.
By signing a Responsibility Questionnaire, you hereby authorize the Department
to review any records in its possession concerning your organization including,
but not limited to, wage records, unemployment insurance records, public works
records, labor standards and safety and health records.
18.10 Suspension of Work: The Department reserves the right to suspend any or
all activities under the contract, at any time, in the best interests of the
State or the Department. In the event of such suspension, ClearBlue will be
given a formal written notice outlining the particulars of such suspension.
Examples of the reason for such suspension include, but are not limited to, a
budget freeze on State spending, awaiting settlement of collective bargaining,
or other such circumstances.
18.11 Provision for Short Term Contract Extension. At the end of any contract
term otherwise provided for herein, if a replacement contract has not yet been
approved in accordance with State law, any contract awarded hereunder may be
extended unilaterally by the State, upon notice to the contractor, on the same
terms and conditions, including all contract prices, for a period of up to six
months with the concurrence of the contractor and the Department and such
extension must be approved through the Office of the State Comptroller. However,
any extension will terminate immediately upon approval of the replacement
contract except where a period of transition of contractors has been previously
provided for.
18.12 Executive Order 127: The Contractor agrees to disclose persons or
organizations retained, employed, or designated by or on behalf of the
Contractor to attempt to influence the procurement process in accordance with
Executive Order 127 by executing the contractor certification of compliance with
Executive Order 127 form attached hereto and by completing the attached
Contractor Disclosure of Contracts Form (Appendix D-1). The Department reserves
the right to terminate this contract in the event it is found that the executed
certification or Disclosure of Contacts Form completed by the contractor in
accordance with New York State Executive Order
Page 9
Number 127, signed by Governor Pataki on June 16, 2003, was intentionally false
or intentionally incomplete. Upon such finding, the Department may exercise its
termination right by providing written notification to the contractor in
accordance with the written notification terms of the contract.
18.13 Publicity: Contractor agrees to obtain Department's approval prior to
contractor's release of publicity regarding this contract. Publicity includes,
but is not limited to, news conferences, news releases, public announcements,
advertising, brochures, reports, discussions and or presentations at conferences
or meetings. The inclusion of Department's materials, Department's name, or
other such reference to New York State and/or The Department of Labor in any
document or forum is considered publicity.
18.14 Incorporation of Appendices/ Inconsistencies: The following documents,
attached hereto and hereby incorporated by reference, constitute the entire
Agreement between the parties. In the event of any discrepancy, disagreement or
ambiguity between any Appendices, the documents shall be given preference in the
following order to interpret and to resolve such discrepancy, disagreement or
ambiguity:
(a) This Agreement and Appendix A
(b) Appendix B: Scope of Work
(c) Appendix C: Rates
(d) Appendix D: Certifications
(d1) Appendix D-1: Executive Order 127
(d2) Appendix D-2: Responsibility Questionnaire
(d3) Appendix D-3: Contractor Certification (ST-220)
(e) Appendix E: Software License Agreement
(f) Appendix F: Software Description
(g) Appendix G: America's Job Bank Hosting Services Service Description
(h) Appendix H: ClearBlue Technologies Management, Inc. Network Service
Description
(i) Appendix M-1: Memorandum of Agreement between New York State Department of
Labor and the Rhode Island Department of Labor & Training
(j) Appendix M-2: America's One Stop Operating System Charter
Page 10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CONTRACT NUMBER C000140
CONTRACTOR CERTIFICATION
"In addition to the acceptance of this contract, I also certify that all
information provided to the Agency with respect to Executive Order Number 127 is
complete, true and accurate."
AGENCY CERTIFICATION
"In addition to the acceptance of this contract, I also certify that original
copies of this signature page will be attached to all other exact copies of this
contract."
CLEARBLUE TECHNOLOGIES THE PEOPLE OF THE STATE
MANAGEMENT, INC. OF NEW YORK
BY: BY:
--------------------------------- ------------------------------------
NAME: NAME:
------------------------------- ----------------------------------
TITLE: TITLE:
------------------------------ ---------------------------------
FEDERAL I.D. NO.:
-------------------
- ------------------------------------- ----------------------------------------
APPROVED AS TO FORM APPROVED
ELIOT SPITZER ALAN G. HEVESI
ATTORNEY GENERAL STATE COMPTROLLER
Page 11
CORPORATE ACKNOWLEDGMENT
STATE OF NEW YORK )
) SS.:
COUNTY OF )
On this _________ day of ___________ in the year 2005, before me personally
came ____________________________, to me known, who, being by me duly sworn did
depose and say that _he resides in ____________________________; that _he is the
_________________________ of CLEARBLUE TECHNOLOGIES MANAGEMENT, INC., the
corporation described in and which executed the above instrument; and that _he
signed his/her name thereto by authority of the Board of Directors of said
corporation.
----------------------------------------
Notary Public
Page 12
STANDARD CLAUSES FOR NYS CONTRACTS APPENDIX A
STANDARD CLAUSES FOR NYS CONTRACTS
The parties to the attached contract, license, lease, amendment or other
agreement of any kind (hereinafter, "the contract" or "this contract") agree to
be bound by the following clauses which are hereby made a part of the contract
(the word "Contractor" herein refers to any party other than the State, whether
a contractor, licenser, licensee, lessor, lessee or any other party):
1. EXECUTORY CLAUSE. In accordance with Section 41 of the State Finance Law, the
State shall have no liability under this contract to the Contractor or to anyone
else beyond funds appropriated and available for this contract.
2. NON-ASSIGNMENT CLAUSE. In accordance with Section 138 of the State Finance
Law, this contract may not be assigned by the Contractor or its right, title or
interest therein assigned, transferred, conveyed, sublet or otherwise disposed
of without the previous consent, in writing, of the State and any attempts to
assign the contract without the State's written consent are null and void. The
Contractor may, however, assign its right to receive payment without the State's
prior written consent unless this contract concerns Certificates of
Participation pursuant to Article 5-A of the State Finance Law.
3. COMPTROLLER'S APPROVAL. In accordance with Section 112 of the State Finance
Law (or, if this contract is with the State University or City University of New
York, Section 355 or Section 6218 of the Education Law), if this contract
exceeds $15,000 (or the minimum thresholds agreed to by the Office of the State
Comptroller for certain S.U.N.Y. and C.U.N.Y. contracts), or if this is an
amendment for any amount to a contract which, as so amended, exceeds said
statutory amount, or if, by this contract, the State agrees to give something
other than money when the value or reasonably estimated value of such
consideration exceeds $10,000, it shall not be valid, effective or binding upon
the State until it has been approved by the State Comptroller and filed in his
office. Comptroller's approval of contracts let by the Office of General
Services is required when such contracts exceed $30,000 (State Finance Law
Section 163.6.a).
4. WORKERS' COMPENSATION BENEFITS. In accordance with Section 142 of the State
Finance Law, this contract shall be void and of no force and effect unless the
Contractor shall provide and maintain coverage during the life of this contract
for the benefit of such employees as are required to be covered by the
provisions of the Workers' Compensation Law.
5. NON-DISCRIMINATION REQUIREMENTS. To the extent required by Article 15 of the
Executive Law (also known as the Human Rights Law) and all other State and
Federal statutory and constitutional non-discrimination provisions, the
Contractor will not discriminate against any employee or applicant for
employment because of race, creed, color, sex, national origin, sexual
orientation, age, disability, genetic predisposition or carrier status, or
marital status. Furthermore, in accordance with Section 220-e of the Labor Law,
if this is a contract for the construction, alteration or repair of any public
building or public work or for the manufacture, sale or distribution of
materials, equipment or supplies, and to the extent that this contract shall be
performed within the State of New York, Contractor agrees that neither it not
its subcontractors shall, by reason of race, creed, color, disability, sex, or
national origin: (a) discriminate in hiring against any New York State citizen
who is qualified and available to perform the work; or (b) discriminate against
or intimidate any employee hired for the performance of work under this
contract. If this is a building service contract as defined in Section 230 of
the Labor Law, then, in accordance with Section 239 thereof, Contractor agrees
that neither it nor its subcontractors shall by reason of race, creed, color,
national origin, age, sex or disability: (a) discriminate in hiring against any
New York State citizen who is qualified and available to perform the work; or
(b) discriminate against or intimidate any employee hired for the performance of
work under this contract. Contractor is subject to fines of $50.00 per person
per day for any violation of Section 220-e or Section 239 as well as possible
termination of this contract and forfeiture of all moneys due hereunder for a
second or subsequent violation.
6. WAGE AND HOURS PROVISIONS. If this is a public work contract covered by
Article 8 of the Labor Law or a building service contract covered by Article 9
thereof, neither Contractor's employees nor the employees of its subcontractors
may be required or permitted to work more than the number of hours or days
stated in said statutes, except as otherwise provided in the Labor Law and as
set forth in prevailing wage and supplement schedules issued by the State Labor
Department. Furthermore, Contractor and its subcontractors must pay at least the
prevailing wage rate and pay or provide the prevailing supplements, including
the premium rates for overtime pay, as determined by the State Labor Department
in accordance with the Labor Law.
7. NON-COLLUSIVE BIDDING CERTIFICATION. In accordance with Section 139-d of the
State Finance Law, if this contract was awarded based upon the submission of
bids, Contractor warrants, under penalty of perjury, that its bid was arrived at
independently and without collusion aimed at restricting competition. Contractor
further warrants that, at the time Contractor submitted its bid, an authorized
and responsible person executed and delivered to the State a non-collusive
bidding certification on Contractor's behalf.
8. INTERNATIONAL BOYCOTT PROHIBITION. In accordance with Section 220-f of the
Labor Law and Section 139-h of the State Finance Law, if this contract exceeds
$5,000, the Contractor agrees, as a material condition of the contract, that
neither the Contractor nor any substantially owned or affiliated person, firm,
partnership or corporation has participated, is participating, or shall
participate in an international boycott in violation of the federal Export
Administration Act of 1979 (50 USC App. Sections 2401 et seq.) or regulations
thereunder. If such Contractor, or any of the aforesaid affiliates of
Contractor, is convicted or is otherwise found to have violated said laws or
regulations upon the final determination of the United States Commerce
Department or any other appropriate agency of the United States subsequent to
the contract's execution, such contract, amendment or modification thereto shall
be rendered forfeit and void. The Contractor shall so notify the State
Comptroller within five (5) business days of such conviction, determination or
disposition of appeal (2NYCRR 105.4).
9. SET-OFF RIGHTS. The State shall have all of its common law, equitable and
statutory rights of set-off. These rights shall include, but not be limited to,
the State's option to withhold for the purposes of set-off any moneys due to the
Contractor under this contract up to any amounts due and owing to the State with
regard to this contract, any other contract with any State department or agency,
including any contract for a term commencing prior to the term of this contract,
plus any amounts due and owing to the State for any other reason including,
without limitation, tax delinquencies, fee delinquencies or monetary penalties
relative thereto. The State shall exercise its set-off rights in accordance with
normal State practices including, in cases of set-off pursuant to an audit, the
finalization of such audit by the State agency, its representatives, or the
State Comptroller.
10. RECORDS. The Contractor shall establish and maintain complete and accurate
books, records, documents, accounts and other evidence directly pertinent to
performance under this contract (hereinafter, collectively, "the Records"). The
Records must be kept for the balance of the calendar year in which they were
made and for six (6) additional years thereafter. The State Comptroller, the
Attorney General and any other person or entity authorized to conduct an
examination, as well as the agency or agencies involved in this contract, shall
have access to the Records during normal business hours at an office of the
Contractor
Page 1 May, 2003
STANDARD CLAUSES FOR NYS CONTRACTS APPENDIX A
within the State of New York or, if no such office is available, at a mutually
agreeable and reasonable venue within the State, for the term specified above
for the purposes of inspection, auditing and copying. The State shall take
reasonable steps to protect from public disclosure any of the Records which are
exempt from disclosure under Section 87 of the Public Officers Law (the
"Statute") provided that: (i) the Contractor shall timely inform an appropriate
State official, in writing, that said records should not be disclosed; and (ii)
said records shall be sufficiently identified; and (iii) designation of said
records as exempt under the Statute is reasonable. Nothing contained herein
shall diminish, or in any way adversely affect, the State's right to discovery
in any pending or future litigation.
11. IDENTIFYING INFORMATION AND PRIVACY NOTIFICATION. (a) FEDERAL EMPLOYER
IDENTIFICATION NUMBER and/or FEDERAL SOCIAL SECURITY NUMBER. All invoices or New
York State standard vouchers submitted for payment for the sale of goods or
services or the lease of real or personal property to a New York State agency
must include the payee's identification number, i.e., the seller's or lessor's
identification number. The number is either the payee's Federal employer
identification number or Federal social security number, or both such numbers
when the payee has both such numbers. Failure to include this number or numbers
may delay payment. Where the payee does not have such number or numbers, the
payee, on its invoice or New York State standard voucher, must give the reason
or reasons why the payee does not have such number or numbers.
(B) PRIVACY NOTIFICATION. (1) The authority to request the above personal
information from a seller of goods or services or a lessor of real or personal
property, and the authority to maintain such information, is found in Section 5
of the State Tax Law. Disclosure of this information by the seller or lessor to
the State is mandatory. The principal purpose for which the information is
collected is to enable the State to identify individuals, businesses and others
who have been delinquent in filing tax returns or may have understated their tax
liabilities and to generally identify persons affected by the taxes administered
by the Commissioner of Taxation and Finance. The information will be used for
tax administration purposes and for any other purpose authorized by law.
(2) The personal information is requested by the purchasing unit of the agency
contracting to purchase the goods or services or lease the real or personal
property covered by this contract or lease. The information is maintained in New
York State's Central Accounting System by the Director of Accounting Operations,
Office of the State Comptroller, AESOB, Albany, New York 12236.
12. EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITIES AND WOMEN. In accordance with
Section 312 of the Executive Law, if this contract is: (i) a written agreement
or purchase order instrument, providing for a total expenditure in excess of
$25,000.00, whereby a contracting agency is committed to expend or does expend
funds in return for labor, services, supplies, equipment, materials or any
combination of the foregoing, to be performed for, or rendered or furnished to
the contracting agency; or (ii) a written agreement in excess of $100,000.00
whereby a contracting agency is committed to expend or does expend funds for the
acquisition, construction, demolition, replacement, major repair or renovation
of real property and improvements thereon; or (iii) a written agreement in
excess of $100,000.00 whereby the owner of a State assisted housing project is
committed to expend or does expend funds for the acquisition, construction,
demolition, replacement, major repair or renovation of real property and
improvements thereon for such project, then:
(a) The Contractor will not discriminate against employees or applicants for
employment because of race, creed, color, national origin, sex, age, disability
or marital status, and will undertake or continue existing programs of
affirmative action to ensure that minority group members and women are afforded
equal employment opportunities without discrimination. Affirmative action shall
mean recruitment, employment, job assignment, promotion, upgradings, demotion,
transfer, layoff, or termination and rates of pay or other forms of
compensation;
(b) at the request of the contracting agency, the Contractor shall request each
employment agency, labor union, or authorized representative of workers with
which it has a collective bargaining or other agreement or understanding, to
furnish a written statement that such employment agency, labor union or
representative will not discriminate on the basis of race, creed, color,
national origin, sex, age, disability or marital status and that such union or
representative will affirmatively cooperate in the implementation of the
contractor's obligations herein; and
(c) the Contractor shall state, in all solicitations or advertisements for
employees, that, in the performance of the State contract, all qualified
applicants will be afforded equal employment opportunities without
discrimination because of race, creed, color, national origin, sex, age,
disability or marital status.
Contractor will include the provisions of "a", "b", and "c" above, in every
subcontract over $25,000.00 for the construction, demolition, replacement, major
repair, renovation, planning or design of real property and improvements thereon
(the "Work") except where the Work is for the beneficial use of the Contractor.
Section 312 does not apply to: (i) work, goods or services unrelated to this
contract; or (ii) employment outside New York State; or (iii) banking services,
insurance policies or the sale of securities. The State shall consider
compliance by a contractor or subcontractor with the requirements of any federal
law concerning equal employment opportunity which effectuates the purpose of
this section. The contracting agency shall determine whether the imposition of
the requirements of the provisions hereof duplicate or conflict with any such
federal law and if such duplication or conflict exists, the contracting agency
shall waive the applicability of Section 312 to the extent of such duplication
or conflict. Contractor will comply with all duly promulgated and lawful rules
and regulations of the Governor's Office of Minority and Women's Business
Development pertaining hereto.
13. CONFLICTING TERMS. In the event of a conflict between the terms of the
contract (including any and all attachments thereto and amendments thereof) and
the terms of this Appendix A, the terms of this Appendix A shall control.
14. GOVERNING LAW. This contract shall be governed by the laws of the State of
New York except where the Federal supremacy clause requires otherwise.
15. LATE PAYMENT. Timeliness of payment and any interest to be paid to
Contractor for late payment shall be governed by Article 11-A of the State
Finance Law to the extent required by law.
16. NO ARBITRATION. Disputes involving this contract, including the breach or
alleged breach thereof, may not be submitted to binding arbitration (except
where statutorily authorized), but must, instead, be heard in a court of
competent jurisdiction of the State of New York.
17. SERVICE OF PROCESS. In addition to the methods of service allowed by the
State Civil Practice Law & Rules ("CPLR"), Contractor hereby consents to service
of process upon it by registered or certified mail, return receipt requested.
Service hereunder shall be complete upon Contractor's actual receipt of process
or upon the State's receipt of the return thereof by the United States Postal
Service as refused or undeliverable. Contractor must promptly notify the State,
in writing, of each and every change of address to which service of process can
be made. Service by the State to the last known address shall be sufficient.
Contractor will have thirty (30) calendar days after service hereunder is
complete in which to respond.
Page 2 May, 2003
STANDARD CLAUSES FOR NYS CONTRACTS APPENDIX A
18. PROHIBITION ON PURCHASE OF TROPICAL HARDWOODS. The Contractor certifies and
warrants that all wood products to be used under this contract award will be in
accordance with, but not limited to, the specifications and provisions of State
Finance Law Section 165. (Use of Tropical Hardwoods) which prohibits purchase
and use of tropical hardwoods, unless specifically exempted, by the State or any
governmental agency or political subdivision or public benefit corporation.
Qualification for an exemption under this law will be the responsibility of the
contractor to establish to meet with the approval of the State.
In addition, when any portion of this contract involving the use of woods,
whether supply or installation, is to be performed by any subcontractor, the
prime Contractor will indicate and certify in the submitted bid proposal that
the subcontractor has been informed and is in compliance with specifications and
provisions regarding use of tropical hardwoods as detailed in Section 165 State
Finance Law. Any such use must meet with the approval of the State; otherwise,
the bid may not be considered responsive. Under bidder certifications, proof of
qualification for exemption will be the responsibility of the Contractor to meet
with the approval of the State.
19. MACBRIDE FAIR EMPLOYMENT PRINCIPLES. In accordance with the MacBride Fair
Employment Principles (Chapter 807 of the Laws of 1992), the Contractor hereby
stipulates that the Contractor either (a) has no business operations in Northern
Ireland, or (b) shall take lawful steps in good faith to conduct any business
operations in Northern Ireland in accordance with the MacBride Fair Employment
Principles (as described in Section 165 of the New York State Finance Law), and
shall permit independent monitoring of compliance with such principles.
20. OMNIBUS PROCUREMENT ACT OF 1992. It is the policy of New York State to
maximize opportunities for the participation of New York State business
enterprises, including minority and women-owned business enterprises as bidders,
subcontractors and suppliers on its procurement contracts.
Information on the availability of New York State subcontractors and suppliers
is available from:
NYS Department of Economic Development
Division for Small Business
30 South Pearl St -- 7th Floor
Albany, New York 12245
Telephone: 518-292-5220
A directory of certified minority and women-owned business enterprises is
available from:
NYS Department of Economic Development
Division of Minority and Women's Business Development
30 South Pearl St -- 2nd Floor
Albany, New York 12245
http://www.empire.state.ny.us
The Omnibus Procurement Act of 1992 requires that by signing this bid proposal
or contract, as applicable, Contractors certify that whenever the total bid
amount is greater than $1 million:
(a) The Contractor has made reasonable efforts to encourage the participation of
New York State Business Enterprises as suppliers and subcontractors, including
certified minority and women-owned business enterprises, on this project, and
has retained the documentation of these efforts to be provided upon request to
the State;
(b) The Contractor has complied with the Federal Equal Opportunity Act of 1972
(P.L. 92-261), as amended;
(c) The Contractor agrees to make reasonable efforts to provide notification to
New York State residents of employment opportunities on this project through
listing any such positions with the Job Service Division of the New York State
Department of Labor, or providing such notification in such manner as is
consistent with existing collective bargaining contracts or agreements. The
Contractor agrees to document these efforts and to provide said documentation to
the State upon request; and
(d) The Contractor acknowledges notice that the State may seek to obtain offset
credits from foreign countries as a result of this contract and agrees to
cooperate with the State in these efforts.
21. RECIPROCITY AND SANCTIONS PROVISIONS. Bidders are hereby notified that if
their principal place of business is located in a country, nation, province,
state or political subdivision that penalizes New York State vendors, and if the
goods or services they offer will be substantially produced or performed outside
New York State, the Omnibus Procurement Act 1994 and 2000 amendments (Chapter
684 and Chapter 383, respectively) require that they be denied contracts which
they would otherwise obtain. NOTE: As of May 15, 2002, the list of
discriminatory jurisdictions subject to this provision includes the states of
South Carolina, Alaska, West Virginia, Wyoming, Louisiana and Hawaii. Contact
NYS Department of Economic Development for a current list of jurisdictions
subject to this provision.
22. PURCHASES OF APPAREL. In accordance with State Finance Law 162 (4-a), the
State shall not purchase any apparel from any vendor unable or unwilling to
certify that: (i) such apparel was manufactured in compliance with all
applicable labor and occupational safety laws, including, but not limited to,
child labor laws, wage and hours laws and workplace safety laws, and (ii) vendor
will supply, with its bid (or, if not a bid situation, prior to or at the time
of signing a contract with the State), if known, the names and addresses of each
subcontractor and a list of all manufacturing plants to be utilized by the
bidder.
Page 3 May, 2003
APPENDIX B
SCOPE OF WORK
JUNE 15, 2005 THROUGH JUNE 14, 2007
ClearBlue Management Technologies, Inc. includes three tasks/services in this
scope of work to be delivered to the New York State Department of Labor. All
tasks described are to be completed by the end of the contract term on or before
June 14, 2007. A summary of the tasks and the costs associated with each is
listed below.
SCOPE OF WORK SUMMARY
Task Cost
---- -----------
1. Consulting/Application Development Services $10,000,000
Requirements and functional specifications, applications
Development, testing, documentation, systems maintenance and
Enhancements for AJB version 5.X through version 6.X with
0-Net integration, AJB Association versions, OSOS version
3.X through version 5.X, and integration with other
America's Career Kit tools (ACINet, Service Locator, etc.)
2. Consulting/Systems Integration Services $12,750,000
Analysis, design, development, project coordination and
management, including hosting services for AJB version 5.X
with 0-Net integration, AJB Association versions, OSOS
version 3.X through version 5.X, and integration with other
America's Career Kit tools (ACINet, Service Locator, etc.)
3. Help Desk Services $ 480,000
TOTAL $23,230,000
SCOPE OF WORK
1. CONSULTING/APPLICATIONS DEVELOPMENT SERVICES $10,000,000
Requirements and functional specifications, applications Development,
testing, documentation, systems maintenance and Enhancements for AJB
version 5.X through version 6.X with 0-Net integration, AJB Association
versions, OSOS version 3.X through version 5.X, and integration with other
America's Career Kit tools (ACINet, Service Locator, etc.)
Provide consulting and development services, including systems analysis,
software design and database and application programming, for continued
development of the AJB Version 5.x - 6.x software, and related systems including
Association Version, and One Stop Operating System (OSOS) Version 3.x - 5.x and
integration with ACINet and ALX including maintenance support for all systems
during the contract term.
The base AJB production national, state, and Association Version systems will be
coded in JAVA J2EE compliant code using Websphere Application Server running on
the Digital Tru64 Unix platform. OSOS 3.x will be developed as an n-tier client
server application. The OSOS application is being developed as a native browser
based system. Middle tier application services will be developed on and deployed
on Sun Solaris. OSOS will utilize an Oracle database as the backend for database
support. Future versions of OSOS may be tested with alternate relational
databases and hardware/operating system platforms.
Licensing of all software developed under the contract will be in accordance
with the terms of the Professional Services Agreement.
Specific tasks:
- Business and systems analysis and programming for development,
maintenance and enhancements for AJB Version 5.x software, and related
systems including Association Version, and One Stop Operating System
(OSOS) Versions 3.x - 5.x.
- Specify, acquire and support all necessary hardware and software,
including Oracle or other relational database software for the
development projects.
- Alpha and beta testing of AJB Version 5.x, Association Version, and
One Stop Operating System (OSOS) Version 3.x - 5.x with selected
sites.
- Update and maintain system documentation for AJB 5.x, OSOS and other
distributed systems.
- Cooperative development with and hosting for ACINet and Service
Locator.
2. CONSULTING/SYSTEMS INTEGRATION SERVICES $12,750,000
Analysis, design, development, project coordination and management,
including hosting services for AJB version 5.X with 0-Net integration, AJB
Association versions, OSOS version 3.X through version 5.X, and integration
with other America's Career Kit tools (ACINet, Service Locator, etc.)
Provide consulting and development services, including analysis, design,
development, project coordination and management for national and state
implementation of AJB Version 5.x and related systems including Association
Version, OSOS Version 3.x - 5.x, O*Net, ACINet, Service Locator and integration
of AJBSC Service Center call center with the Navisite Corporation call center.
Navisite in cooperation with NYSDOL will make every effort to eliminate single
points of failure in an effort to make the application available to the public
24 hours per day.
Provide managed application support and hosting services for states electing to
run OSOS in this mode.
Specific tasks:
- Consulting support to AJB staff during the implementation phases for
hardware and software specification.
- Software installation and configuration.
- Installation documentation and support.
- Vendor coordination for purchasing, staging and shipping.
- Hosting services, including hardware, software and networking for
national and state sites.
- Hosting services, including hardware, software and networking for
Association sites, and ACINet.
- Coordination of development for AJB Version 5.x with other related
development efforts including OSOS, Service Locator and ACINet.
- Managed application support and hosting services for states being
provided services through AJBSC.
- Hosting services for the America's Career Kit portal site.
- Provide Content Distribution Network services for AJB.
3. HELP DESK SERVICES $480,000
Provide help desk services for AJB related products and services. 24 x 7 support
with dedicated access lines.
Specific tasks:
- Provide call center support systems including call distribution and
tracking systems.
- Provide first and second level support systems.
- Provide incident closeout (after action) reports, describing the
problem, root cause and corrective action taken to prevent
reoccurrence.
APPENDIX C
RATES
Labor Category Hourly
- -------------- ------
Business Analyst $95
Senior Programmer $85
Junior Programmer $75 $75 flat rate for overtime
Contract Programmer $75
Data Architect $95
DataBase Admin. $92
Manager $98
Flat rate is used for all overtime hours regardless of labor category.
Web Hosting Services - annual charges
National Hosting (incl. Delta Edge and Help Desk) $1,016,400 Annually
Misc Hosting (ACINet, Portal, Associations, etc.) $ 72,072 Annually
(2) AJB VPN Charges $ 11,880 Annually
(3) T1 Frame Relay-Building 12 Harriman State Campus $ 43,200 Annually
Install Charge (2) new T1 Frame Relay 6/2005 $ 1,500 One-Time Fee
(3) AOSOS VPN Charges $ 22,548 Annually
Charges subject to change based on change in scope of services provided.
Additional charges may apply for hardware as needed.
10/21/03 APPENDIX D
FEDERAL CERTIFICATIONS
The funding for the awards granted under this contract is provided by
either the United States Department of Labor or the United States Department of
Health and Human Services which requires the following certifications:
A. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY
EXCLUSION-LOWER TIER COVERED TRANSACTIONS
1. The prospective lower tier participant certifies, by submission of this
proposal, that neither it nor its principals is presently debarred,
suspended, proposed for debarment, declared ineligible, or voluntarily
excluded from participation in this transaction by any Federal department
or agency.
2. Where the prospective lower tier participant is unable to certify to any of
the statement in this certification, such prospective participant shall
attach an explanation to this proposal.
B. CERTIFICATION REGARDING LOBBYING - CERTIFICATION FOR CONTRACTS, GRANTS,
LOANS, AND COOPERATIVE AGREEMENTS
By accepting this grant, the signee hereby certifies, to the best of his or her
knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on
behalf of the undersigned, to any person for influencing or attempting to
influence an officer or employee of Congress, or an employee of a Member of
Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the entering
into of any cooperative agreement, and the extension, continuation,
renewal, amendment or modification of any Federal contract, grant, loan or
cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will
be paid to any person for influencing or attempting to influence an officer
or employee of any agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in connection with this
Federal contract, grant, loan or cooperative agreement, the undersigned
shall complete and submit Standard Form - LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
3. The signer shall require that the language of this certification be
included in the award documents for all subawards at all tiers (including
subcontracts, subgrants, and contracts under grants, loans, and cooperative
agreements) and that all subrecipients shall certify and disclose
accordingly. This certification is a material representation of facts upon
which reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or entering
into this transaction imposed by Section 1352, Title 31, U.S.C. ANY PERSON
WHO FAILS TO FILE THE REQUIRED CERTIFICATION SHALL BE SUBJECT TO A CIVIL
PENALTY OF NOT LESS THAN $10,000 AND NOT MORE THAN $100,000 FOR EACH SUCH
FAILURE.
1
C. DRUG FREE WORKPLACE. By signing this application, the grantee certifies that
it will provide a Drug Free Workplace by implementing the provisions at 29 CFR
98.630, Appendix C, pertaining to the Drug Free Workplace. In accordance with
these provisions, a list of places where performance of work is done in
connection with this specific grant will take place must be maintained at your
office and available for Federal inspection.
D. NONDISCRIMINATION & EQUAL OPPORTUNITY ASSURANCE:
FOR CONTRACTS FUNDED BY THE U.S. DEPARTMENT OF LABOR
As a condition to the award of financial assistance from the Department of Labor
under Title I of WIA, the grant applicant assures that it will comply fully with
the nondiscrimination and equal opportunity provisions of the following laws:
(1) Section 188 of the Workforce Investment Act of 1998 (WIA) which prohibits
discrimination against all individuals in the United States on the basis of
race, color, religion, sex, national origin, age disability, political
affiliation, or belief, and against beneficiaries on the basis of either
citizenship/status as a lawfully admitted immigrant authorized to work in the
United States or participation in any WIA Title I - financially assisted program
or activity;
(2) Title VI of the Civil Rights Act of 1964, as amended which prohibits
discrimination on the basis of race, color, and national origin;
(3) Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits
discrimination against qualified individuals with disabilities;
(4) The Age Discrimination Act of 1975, as amended, which prohibits
discrimination on the basis of age; and
(5) Title IX of the Education Amendments of 1972, as amended, which prohibits
discrimination on the basis of sex in educational programs.
The grant applicant also assures that it will comply with 29 CFR Part 37 and all
other regulations implementing the laws listed above. This assurance applies to
the grant applicant's operation of the WIA Title I - financially assisted
program or activity, and to all agreements the grant applicant makes to carry
out the WIA Title I-financially assisted program or activity. The grant
applicant understands that the United States has the right to seek judicial
enforcement of this assurance. For grants serving participants in work
activities funded through the Welfare-to-Work block grant programs under Section
407(a) of the Social Security Act, the grant applicant shall comply with 20 CFR
645.255.
FOR CONTRACTS FUNDED BY THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
As a condition to the award of financial assistance from the Department of Labor
under Title IV-A of the Social Security Act, the grant applicant assures that it
will comply fully with the nondiscrimination and equal opportunity provisions of
the following laws including but not limited to:
2
(1) Title VI of the Civil rights Act of 1964(P.L. 88-352) and Executive Order
Number 11246 as amended by E.O. 11375 relating to Equal Employment Opportunity
which prohibits discrimination on the basis of race, color or national origin;
(2) Section 504 of the Rehabilitation Act of 1973, as amended, and the
regulations issued pursuant thereto contained in 45 CFR Part 84 entitled
"Nondiscrimination on the Basis of Handicap in Programs and Activities Reviewing
or Benefiting from Federal Financial Assistance" which prohibit discrimination
against qualified individuals with disabilities;
(3) The Age Discrimination Act of 1975, as amended, and the regulations at 45
CFR Part 90 entitled "Nondiscrimination on the Basis of Age in Programs and
Activities Reviewing Federal Financial Assistance", which prohibits
discrimination on the basis of age;
(4) Title IX of the Education Amendments of 1972, as amended, which prohibits
discrimination on the basis of sex in educational programs; and
(5) The Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. Section 12116,
and regulations issued by the Equal Employment Opportunity Commission which
implement the employment provisions of the ADA, set forth at 29 CFR Part 1630.
The grant applicant also assures that it will comply with 45 CFR Part 80 and all
other regulations implementing the laws listed above. The grant applicant
understands that the United States has the right to seek judicial enforcement of
this assurance.
STATE CERTIFICATIONS
E. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY, AND
OUTSTANDING DEBTS
The undersigned, as a duly sworn representative of the contractor/vendor, hereby
attests and certifies that:
1) No principle or executive officer of the contractor's/vendor's
company, its subcontractor(s) and/or successor(s) is presently
suspended or debarred; and
2) The contractor/vendor, its subcontractor(s) and/or its successor(s) is
not ineligible to submit a bid on, or be awarded, any public work
contract or sub-contract with the State, any municipal corporation or
public body for reason of debarment for failure to pay the prevailing
rate of wages, or to provide supplements, in accordance with Article 8
of the New York State Labor Law.
3) The contractor/vendor, its subcontractor(s) and/or its successor do
not have any outstanding debts owed to the Department, including but
not limited to, contractual obligations, fines related to Safety and
Health violations, payments owed to workers for public works projects
or the general provisions of the Labor Law, unemployment insurance
contributions or other related assessments, penalties or charges.
3
F. CERTIFICATION REGARDING "NONDISCRIMINATION IN EMPLOYMENT IN NORTHERN
IRELAND: MACBRIDE FAIR EMPLOYMENT PRINCIPLES"
In accordance with Chapter 807 of the Laws of 1992 the bidder, by
submission of this bid, certifies that it or any individual or legal entity in
which the bidder holds a 10% or greater ownership interest, or any individual or
legal entity that holds a 10% or greater ownership interest in the bidder,
either:
(answer Yes or No to one or both of the following, as applicable.)
1. Has business operations in Northern Ireland:
Yes X No
----- -----
If Yes:
2. Shall take lawful steps in good faith to conduct any business operations they
have in Northern Ireland in accordance with the MacBride Fair Employment
Principles relating to nondiscrimination in employment and freedom of workplace
opportunity regarding such operations in Northern Ireland, and shall permit
independent monitoring of its compliance with such Principles.
Yes No
----- -----
G. COMPLIANCE WITH EXECUTIVE ORDER NUMBER 127
The undersigned certifies that all information provided to the Department with
respect to Executive Order Number 127, Providing For Additional State
Procurement Disclosure, is complete, true and accurate and understands that any
intentional failure to disclose the required information will result in a
determination of non-responsibility or, if discovered after the contract is
executed, the termination of the contract and subsequent determinations of
non-responsibility for other State contracts.
H. NON-COLLUSIVE BIDDING CERTIFICATION
By submission of this bid, each bidder and each person signing on behalf of any
bidder certifies, and in the case of a joint bid each party thereto certifies as
to its own organization, under penalty of perjury, that to the best of his or
her knowledge and belief:
1. The prices in this bid have been arrived at independently without
collusion, consultation, communication, or agreement, for the purpose
of restricting competition, as to any matter relating to such prices
with any other bidder or with any competitor;
2. Unless otherwise required by law, the prices which have been quoted in
this bid have not been knowingly disclosed by the bidder and will not
knowingly be
4
disclosed by the bidder prior to opening, directly or indirectly, to
any other bidder or to any competitor; and
3. No attempt has been made or will be made by the bidder to induce any
other person, partnership or corporation to submit or not to submit to
bid for the purpose of restricting competition.
I, the undersigned, attest under penalty of perjury that I am an authorized
representative of the Bidder/Contractor and that the foregoing statements are
true and accurate.
Signature of Authorized Representative /s/ John J. Gavin Jr.
-----------------------------------------
Title: John J. Gavin, Jr., Chief Financial Officer
Date: June 3, 2004
5
APPENDIX D-1
CONTRACTOR DISCLOSURE OF CONTACTS FORM 8/18/03
This form shall be completed and submitted with your bid/proposal or offer.
Failure to complete and submit this form shall result in a determination of
non-responsiveness and disqualification of the bid, proposal or offer. If at the
time of submission of this form, the specific name of a person authorized to
attempt to influence a decision on your behalf is unknown, you agree to provide
the specific person's information when it is available. You also agree to update
this information during the negotiation or evaluation process of this
procurement, and throughout the term of any contract awarded to your company
pursuant to this bid/proposal or offer.
********************************************************************************
Name of Contractor: ClearBlue Technologies Management, Inc.
Address: 224 Harrison Street, Syracuse, New York 13202
Name and Title of Person Submitting this Form: John J. Gavin, Jr.
Chief Financial Officer
Is this an initial filing in accordance with Section II, paragraph 1 of EO 127
or an updated filing in accordance with Section II, paragraph 2 of EO 127?
(Please circle):
Initial filing Updated filing
The following person or organization was retained, employed or designated by or
on behalf of the Contractor to attempt to influence the procurement process:
Name:
--------------------------------------------------------------------------
Address:
-----------------------------------------------------------------------
- --------------------------------------------------------------------------------
Telephone Number:
--------------------------------------------------------------
Place of Principal Employment:
-------------------------------------------------
Occupation:
--------------------------------------------------------------------
Does the above named person or organization have a financial interest in the
procurement? (Please circle) yes no
APPENDIX D-2
RESPONSIBILITY QUESTIONNAIRE 8/18/03
INSTRUCTIONS
Please complete this form answering every question. A "Yes" answer to any
question requires a written explanation attached to the questionnaire and
submitted on company letterhead signed by an officer of the company.
QUESTIONS:
Within the past five years, has your firm, any affiliate, any owner or officer
or major stockholder (5% or more shares) or any person involved in the bidding
or contracting process been the subject of any of the following:
(a) a judgment or conviction for any business-related conduct constituting a
crime under local, state or federal law including, but not limited to,
fraud, extortion, bribery, racketeering, price-fixing, or bid collusion?
[ ] Yes [X] No
(b) a criminal investigation or indictment for any business-related conduct
constituting a crime under local, state or federal law including, but no
limited to, fraud, extortion, bribery, racketeering, price-fixing, or bid
collusion?
[ ] Yes [X] No
(c) an unsatisfied judgment, injunction or lien obtained by a government agency
including, but not limited to, judgments based on taxes owed and fines and
penalties assessed by any government agency?
[ ] Yes [X] No
(d) an investigation for a civil violation by any local, state or federal
agency?
[ ] Yes [X] No
(e) a grant of immunity for any business-related conduct constituting a crime
under local, state or federal law including, but not limited to fraud,
extortion, bribery, racketeering, price-fixing, or bid collusion?
[ ] Yes [X] No
(f) a local, state or federal suspension, debarment or termination from the
contract process?
[ ] Yes [X] No
(g) a local, state or federal contract suspension or termination for cause
prior to the completion of the term of a contract?
[ ] Yes [X] No
(h) a local, state or federal denial of award for non-responsibility?
[ ] Yes [X] No
if yes, was the basis for the finding of non-responsibility due to the
intentional provision of false or incomplete information required by
Executive Order 127?
[ ] Yes [ ] No
(i) an agreement to voluntary exclusion from bidding/contracting?
[ ] Yes [X] No
(j) an administrative proceeding or civil action seeking specific performance
or restitution in connection with any local, state or federal contract?
[ ] Yes [X] No
(k) a State Labor Law violation deemed willful?
[ ] Yes [X] No
(l) a firm-related bankruptcy proceeding?
[ ] Yes [X] No
(m) a sanction imposed as a result of judicial or administrative proceedings
relative to any business or professional license?
[ ] Yes [X] No
(n) a denial, decertification, revocation or forfeiture of Women's Business
Enterprise, Minority Business Enterprise or Disadvantaged Business
Enterprise status?
[ ] Yes [X] No
(o) a rejection of a low bid on a local, state or federal contact for failure
to meet statutory affirmative action or MWBE requirements on a previously
held contract?
[ ] Yes [X] No
(p) a federal, state or local government enforcement determination involving a
violation of federal, state or local government laws?
[ ] Yes [X] No
(q) an occupational Safety and Health Act citation and Notification of Penalty
containing a violation classified as serious or willful?
[ ] Yes [X] No
(r) a rejection of a bid on a New York contract for failure to comply with the
MacBride Fair Employment Principles?
[ ] Yes [X] No
(s) a citation, notice, violation order, pending administrative hearing or
proceeding or determination for violations of?
- federal, state or local health laws, rules or regulations
- unemployment insurance or workers' compensation coverage or claim
requirements
- ERISA (Employee Requirement Income Security Act)
- federal, state or local human rights laws
- federal or state security laws
- federal INS and Alienage laws
- Sherman Act or other federal anti-trust laws.
[ ] Yes [X] No
NOTES:
Information on the following additional topics should be submitted with this
questionnaire. Check "none" if topic does not apply.
(1) agency complaints or reports of contract deviation received within the
past two years for contract performance issues arising out of a
contract with any federal, state or local agency?
[X] None
(2) Employee Identification No., Social Security No., Name, DBA, trade
name or abbreviation previously or currently used by your business
which is different from that listed on your mailing list application
form?
[X] None
CERTIFICATION:
The undersigned: recognizes that this questionnaire is submitted for the express
purpose of assisting the State of New York or its agencies or political
subdivisions to make a determination regarding the award of a contract or
approval of a subcontract; acknowledges that the State or its agencies and
political subdivisions may in its discretion, by means which it may choose,
verify the truth and accuracy of all statements made herein; acknowledges that
intentional submission of false or misleading information may constitute a
felony under Penal Law Section 210.40 or a misdemeanor under Penal Law Section
210.35 or Section 210.45, and may also be punishable by a fine of up to $10,000
or imprisonment of up to five years under 18 USC Section 1001; and states that
the information submitted in this questionnaire and any attached pages is true,
accurate and complete.
ClearBlue Technologies /s/ John J. Gavin, JR.
Management, Inc. ----------------------------------------
Name of Business Signature of Officer
224 Harrison Street John J. Gavin, JR.
Address Typed Copy of Signature
Syracuse, New York 13202 Chief Financial Officer
City, State, Zip Title
Principal place of business if different from address listed above (include
complete address):
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
APPENDIX D-3
New York State Department of Taxation and Finance ST-220
CONTRACTOR CERTIFICATION (1/05)
(Pursuant to Section 5-a of the Tax Law)
For more information, see Publication 222, Question and Answers Concerning
Section 5-a.
Contractor name For office use only
CLEARBLUE TECHNOLOGIES MANAGEMENT, INC. Contract number
Contractor's principal place of business City State ZIP code
224 HARRISON STREET SYRACUSE NY 13202 ________________
Mailing address (if different than above) Estimated contract value
400 MINUTEMAN ROAD, ANDOVER, MA 01810
Contractor's federal employer Contractor's sales tax ID number
Identification number (EIN) (if different from contractor's EIN)
75-3051663 $ ______________
Contractor's telephone number Contracting state agency
(315) 479-0824 NEW YORK STATE DEPARTMENT OF LABOR
I, JOHN J. GAVIN, JR., hereby affirm, under penalty of perjury, that I am
(name)
CHIEF FINANCIAL OFFICER of the above-named contractor, that I am authorized to
(title)
make this certification on behalf of such contractor, and that:
PART I. CONTRACT SERVICES THAT ARE NOT SERVICES FOR PURPOSES OF TAX LAW SECTION
5-A
(Mark an X in the box if this statement is applicable. If you mark this box, you
do not have to complete Parts II - V.)
[X] The requirements of Tax Law section 5-a do not apply because the subject
matter of the contract concerns the performance of services which are not
services within the meaning of Tax Law section 5-a.
(If you did not mark the box next to the statement in Part I, mark an X next to
the applicable statement in Parts II through V.)
PART II. CONTRACTOR REGISTRATION STATUS
[ ] The contractor has made sales delivered by any means to locations within
New York State of tangible personal property or taxable services having a
cumulative value in excess of $300,000 during the four quarterly periods
ending on the last day of February, May, August, and November which
immediately precede the quarterly period in which this certification is
made, and is registered for New York State and local sales and compensating
use tax purposes with the Commissioner of Taxation and Finance pursuant to
sections 1134 and 1253 of the Tax Law.
[ ] As of the date of this certification, the contractor has not made sales
delivered by any means to locations within New York State of tangible
personal property or taxable services having a cumulative value in excess
of $300,000 during the four quarterly periods ending on the last day of
February, May, August, and November which immediately precede the quarterly
period in which this certification is made.
PART III. AFFILIATE REGISTRATION STATUS
[ ] As of the date of this certification, the contractor does not have any
affiliates.
[ ] To the best of the contractor's knowledge, the contractor has one or more
affiliates having made sales delivered by any means to locations within New
York State of tangible personal property or taxable services having a
cumulative value in excess of $300,000 during the four quarterly periods
ending on the last day of February, May, August, and November which
immediately precede the quarterly period in which this certification is
made, and each affiliate exceeding the $300,000 sales threshold during such
periods is registered for New York State and local sales and compensating
use tax purposes with the Commissioner of Taxation and Finance pursuant to
sections 1134 and 1253 of the Tax Law. The contractor has listed on
Schedule A of this certification the name, address, and identification
number of each affiliate exceeding the $300,000 sales threshold during the
four quarterly periods ending on the last day of February, May, August, and
November which immediately precede the quarterly period in which this
certification is made.
[ ] To the best of the contractor's knowledge, the contractor has one or more
affiliates and, as of the date of this certification, each affiliate has
not made sales delivered by any means to locations within New York State of
tangible personal property or taxable services having a cumulative value in
excess of $300,000 during the four quarterly periods ending on the last day
of February, May, August, and November which immediately precede the
quarterly period in which this certification is made.
PAGE 2 of 6 ST-220 (1/05)
PART IV. SUBCONTRACTOR REGISTRATION STATUS
[ ] As of the date of this certification, the contractor does not have any
subcontractors.
[ ] The contractor has one or more subcontractors, and each subcontractor has
informed the contractor of whether or not, as of the date of this
certification, it has made sales delivered by any means to locations within
New York State of tangible personal property or taxable services having a
cumulative value in excess of $300,000 during the four quarterly periods
ending on the last day of February, May, August, and November which
immediately precede the quarterly period in which this certification is
made. Each subcontractor informing the contractor that it has made sales in
excess of the $300,000 threshold during such periods has further informed
the contractor that it is registered for New York State and local sales and
compensating use tax purposes with the Commissioner of Taxation and Finance
pursuant to sections 1134 and 1253 of the Tax Law. The contractor has
listed on Schedule A of this certification the name, address and
identification number of each subcontractor exceeding the $300,000 sales
threshold during the four quarterly periods ending on the last day of
February, May, August, and November which immediately precede the quarterly
period in which this certification is made.
[ ] The contractor has one or more subcontractors, and each subcontractor has
informed the contractor that, as of the date of this certification, it has
not made sales delivered by any means to locations within New York State of
tangible personal property or taxable services having a cumulative value in
excess of $300,000 during the four quarterly periods ending on the last day
of February, May, August, and November which immediately precede the
quarterly period in which this certification is made.
PART V. SUBCONTRACTOR AFFILIATE REGISTRATION STATUS
[ ] The contractor has one or more subcontractors, and each subcontractor has
informed the contractor that, as of the date of this certification, it does
not have any affiliates.
[ ] The contractor has one or more subcontractors, and each subcontractor has
informed the contractor of whether or not, as of the date of this
certification, it has any affiliates having made sales delivered by any
means to locations within New York State of tangible personal property or
taxable services having a cumulative value in excess of $300,000 during the
four quarterly periods ending on the last day of February, May, August, and
November which immediately precede the quarterly period in which this
certification is made. Each subcontractor informing the contractor that it
has one or more affiliates having made sales in excess of the $300,000
threshold during such periods has further informed the contractor that each
such affiliate is registered for New York State and local sales and
compensating use tax purposes with the Commissioner of Taxation and Finance
pursuant to sections 1134 and 1253 of the Tax Law. The contractor has
listed on Schedule A of this certification the name, address and
identification number of each affiliate exceeding the $300,000 sales
threshold during the four quarterly periods ending on the last day of
February, May, August, and November which immediately precede the quarterly
period in which this certification is made.
[ ] The contractor has one or more subcontractors, and each subcontractor has
informed the contractor that, as of the date of this certification, it has
no affiliate having made sales delivered by any means to locations within
New York State of tangible personal property or taxable services having a
cumulative value in excess of $300,000 during the four quarterly periods
ending on the last day of February, May, August, and November which
immediately precede the quarterly period in which this certification is
made.
Sworn to this 10th day of MAY, 2005
/s/ John J. Gavin Jr. CHIEF FINANCIAL OFFICER
- ------------------------------------- (Title)
(signature)
/s/ Linda Cooper
- -------------------------------------
LINDA COOPER
Notary Public
My Commission Expires
March 29, 2007
ST-220 (1/05) PAGE 3 of 6
INDIVIDUAL, CORPORATION, PARTNERSHIP, OR LLC ACKNOWLEDGMENT
STATE OF MA )
: SS.:
COUNTY OF ESSEX )
On the day 10th of MAY in the year 20__, before me personally appeared JOHN J.
GAVIN, JR., known to me to be the person who executed the foregoing instrument,
who, being duly sworn by me did depose and say that
_he resides at 62 COUNTRYSIDE DRIVE,
Town of CUMBERLAND,
County of PROVIDENCE,
State of RHODE ISLAND; and further that:
[Mark an X in the appropriate box and complete the accompanying statement.]
[ ] (If an individual): _he executed the foregoing instrument in his/her name
and on his/her own behalf.
[X] (If a corporation): _he is the CHIEF FINANCIAL OFFICER of CBTM, INC., the
corporation described in said instrument; that, by authority of the Board
of Directors of said corporation, _he is authorized to execute the
foregoing instrument on behalf of the corporation for purposes set forth
therein; and that, pursuant to that authority, _he executed the foregoing
instrument in the name of and on behalf of said corporation as the act and
deed of said corporation.
[ ] (If a partnership): _he is the ____________________________________________
of _______________________________________, the partnership described in
said instrument; that, by the terms of said partnership, _he is authorized
to execute the foregoing instrument on behalf of the partnership for
purposes set forth therein; and that, pursuant to that authority, _he
executed the foregoing instrument in the name of and on behalf of said
partnership as the act and deed of said partnership.
[ ] (If a limited liability company): _he is a duly authorized member
of, ___________________________________________________________ LLC, the
limited liability company described in said instrument; that _he is
authorized to execute the foregoing instrument on behalf of the limited
liability company for purposes set forth therein; and that, pursuant to
that authority, _he executed the foregoing instrument in the name of and on
behalf of said limited liability company as the act and deed of said
limited liability company.
/s/ Linda Cooper
- -------------------------------------
Notary Public
Registration No.
--------------------
LINDA COOPER
Notary Public
My Commission Expires
March 29, 2007
PAGE 4 of 6 ST-220 (1/05)
SCHEDULE A -- LIST OF AFFILIATES, SUBCONTRACTORS, AND AFFILIATES OF
SUBCONTRACTORS
A
Relationship
to B C D E F
Contractor Name Address ID Number Sales Tax ID Number Proof of Registration
- ------------ ------------- ------------------ ---------- ------------------- ---------------------
A NAVISITE, INC 4OO MINUTEMAN ROAD 52-2137343
ANDOVER, MA 01810
Column A - Enter C if the contractor; do not complete columns C, D, and E. Enter
A if an affiliate of the contractor; S if a subcontractor; or SA if
an affiliate of a subcontractor, and complete columns B through F.
Column B - Name - If person is a corporation or limited liability company, enter
the exact legal name as registered with the NY Department of State.
If person is a partnership or sole proprietor, enter the name of the
partnership and each partner's given name, or the given name(s) of
the owner(s), as applicable. If person has a different DBA (doing
business as) name, enter that name as well.
Column C - Address - Enter the street address of person's principal place of
business. Do not enter a PO box.
Column D - ID number - Enter the federal identification number assigned to the
person or person's business, as applicable.
Column E - Sales tax ID number - Enter only if different from federal ID number
in column D.
Column F - Enter CA if a paper copy of the certificate of authority is attached;
or RC if person is registered with DTF and has confirmed this status
with DTF.
PRIVACY NOTIFICATION
The Commissioner of Taxation and Finance may collect and maintain personal
information pursuant to the New York State Tax Law, including but not limited
to, sections 5-a, 171, 171-a, 287, 308, 429, 475, 505, 697, 1096, 1142, and 1415
of that Law; and may require disclosure of social security numbers pursuant to
42 USC 405(c)(2)(C)(i).
This information will be used to determine and administer tax liabilities and,
when authorized by law, for certain tax offset and exchange of tax information
programs as well as for any other lawful purpose.
Information concerning quarterly wages paid to employees is provided to certain
state agencies for purposes of fraud prevention, support enforcement, evaluation
of the effectiveness of certain employment and training programs and other
purposes authorized by law.
Failure to provide the required information may subject you to civil or criminal
penalties, or both, under the Tax Law.
This information is maintained by the Director of Records Management and Data
Entry, NYS Tax Department, W A Harriman Campus, Albany NY 12227; telephone 1 800
225-5829. From areas outside the United States and outside Canada, call (518)
485-6800.
APPENDIX E
FORM OF SUBLICENSE AGREEMENT
SOFTWARE LICENSE AGREEMENT
This License Agreement (the "Agreement") is made and entered into as of June 15,
2005 by and between the New York State Department of Labor ("Licensor"), and
ClearBlue Technologies Management, Inc. ("Licensee").
WHEREAS, Licensor owns or otherwise has the right to license to third parties
the software described on Schedule A hereto (the "Software");
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein and for other good and valuable consideration, the receipt, sufficiency
and adequacy of which are mutually acknowledged by each party, it is agreed as
follows:
1. License.
(a) Subject to the terms and conditions set forth herein, Licensor hereby grants
to Licensee a non-exclusive, fully paid, nontransferable license to use the
Software (in machine readable object code form) and any documentation relating
thereto (together "Licensed Property") solely in connection with Workforce
Development Services. For purposes of this Agreement, the term "Workforce
Development Services" means services relating to job searches, including
management of "welfare-to-work" programs, collection of labor market information
and tracking of employers, job seekers and job training programs.
(b) Solely In the event that the grant funding from the U.S. Department of Labor
to the Department which is being used to fund the development and support of the
Software is permanently terminated, Licensor shall sublicense the Software in
source code form to Licensee to use, modify, improve and edit (but without the
right to sublicense) the Software solely for purposes of completing the
development of the Software related to the provision of Workforce Development
Services.
2. Protections; Property.
(a) Licensee shall: (i) keep confidential the Software and limit access to the
same to those of its employees, agents and sub-contractors who are engaged in
the use of the Software and shall not, except as expressly permitted herein,
publish, communicate or disclose, or permit to be published, communicated or
disclosed, to third parties such information and data without Licensor's prior
written consent; (ii) reproduce on any copy of the Software copyright notices;
(iii) notify Licensor immediately if Licensee becomes aware of any unauthorized
use of the whole or any part of the Software; and (iv) without prejudice to the
foregoing take all such other steps as shall from time to time be necessary to
protect the confidentiality and intellectual property rights of Licensor and any
third-parties having ownership rights in the Software.
(b) Licensee shall not, except as expressly contemplated by this Agreement in
Section 1: (i) assign, sublicense, lease, encumber or otherwise transfer or
attempt to transfer the Software and related documentation or any portion
thereof; (ii) modify, improve, translate, reverse engineer, decompile or
disassemble the Software; (iii) possess or use the Software or any portion
thereof, other than in machine readable object code; or (iv) remove any
copyright, trademark, patent or other proprietary notices from the Licensed
Property or any portion thereof.
(c) Licensee acknowledges and agrees that Licensor and/or any licensors of
Licensor have and will retain all right, title, interest and ownership in and to
the Software and related documentation and all copyright, trademarks, trade
names and any other intellectual property rights included or subsisting in,
represented by or used in connection with the Software.
3. Remedies.
Licensee acknowledges that irreparable damage may result if the provisions of
Sections 1 or 2 of this Agreement were not specifically enforced and agree that
each Licensor shall be entitled to any appropriate legal, equitable or other
remedy, including injunctive relief, in respect of any failure by the other
party to comply with such provisions.
4. Term and Termination.
(a) The license granted to Licensee hereunder will continue until terminated as
provided herein. The license granted to Licensee hereunder shall terminate if
Licensee breaches or violates any term of this Agreement and fails to correct
such breach or violation or to undertake efforts to correct such breach or
violation to Licensor's satisfaction within thirty (30) days after receiving
notice of such breach or violation.
(b) Licensee shall (1) immediately upon termination of license granted to
Licensee hereunder discontinue all use of the Software and (2) within fifteen
(15) days after such termination, return all of the Licensed Property and copies
thereof, including, without limitation, diskettes containing the Software and
all other physical copies of the Software, (3) destroy the Software and all
copies of the Software as contained in any computer memory or data storage
apparatus under the control of Licensee, and (4) certify to Licensor that
Licensee has delivered to Licensor or destroyed the Licensed Property and copies
thereof, including, without limitation, the Software and all copies of the
Software, in accordance with this Section 4(b).
5. Limitation of Liability.
Licensor shall not be liable to the other party or any other person or entity
for any damages including, but not limited to, direct, indirect, consequential,
incidental or special damages, lost profits, lost savings, loss of goodwill or
otherwise, or for exemplary damages in connection with the Software and this
Agreement, even if such party has been advised of the possibility of such
damages.
6. No Warranties.
LICENSOR DOES NOT MAKE ANY WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE
SOFTWARE OR THE APPLICATION, OPERATION OR USE THEREOF, THE DATA GENERATED BY THE
OPERATION OR USE THEREOF, OR ANY SUPPORT SERVICES RENDERED WITH RESPECT TO THE
SOFTWARE. LICENSOR HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, OR
OF MERCHANTABLE QUALITY, OR OF FITNESS FOR ANY PURPOSE, PARTICULAR, SPECIFIC OR
OTHERWISE, OR OF NON-INFRINGEMENT, CONCERNING THE SOFTWARE AND THE APPLICATION,
OPERATION OR USE THEREOF.
7. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York without regard to
principles of conflict of laws.
CLEARBLUE TECHNOLOGIES THE PEOPLE OF THE STATE
MANAGEMENT, INC. OF NEW YORK
BY: BY:
--------------------------------- ------------------------------------
NAME: NAME:
------------------------------- ----------------------------------
TITLE: TITLE:
------------------------------ ---------------------------------
FEDERAL I.D. NO.:
-------------------
APPENDIX F
SOFTWARE DESCRIPTION
1. America's Jobs Bank National and State System
AJB is an employment Web site that allows job seekers, people looking for a job,
to search a database for potential jobs and post ads to attract potential
employers. The site allows job seekers to find jobs based on a variety of
criteria such as job location, job title, salary, etc. The job seeker can create
and store a resume which can be used to apply for the jobs. An employer can post
job openings and search the database for resumes to match the job openings. AJB
is currently a productional system.
2. One Stop Operating System ("OSOS")
The OSOS is designed to support the implementation of the Workforce Investment
Act. In this capacity, the OSOS serves two major purposes. First, individuals
use the system to create a .resume and find a job. Second, case managers use the
system to identify, schedule, manage and evaluate the delivery of services that
support an individual in finding, and keeping, a job. These services range from
day care and food stamps to training and other skills-building activities.
3. Associated Services (Association Version)
Associated Services allows an organization to operate its own Internet
employment site. The site is tailored to match the organization's Internet
graphic design. The site is put in place with any or all the same functionality
of America's Job Bank. Additional custom-tailored features are also available.
Associated Services is currently in production for multiple organizations.
APPENDIX G
AMERICA'S JOB BANK HOSTING SERVICES
SERVICE DESCRIPTION
The ClearBlue Service (the "Service") refers to the equipment, facilities,
programming, data files, software, services and resources provided by ClearBlue
to enable Customer to create a World Wide Web presence and other related systems
on the global Internet. The specific service depends on the choice of hosting
platform as well as the various options ordered by the Customer.
The "ClearBlue Network Service" includes diverse connections with appropriate
capacity, connecting to and from the global Internet.
ClearBlue is responsible for maintaining and managing the hardware, operating
system, and Web server software and certain applications.
Infrastructure and Customer Implementation
ClearBlue will procure, install, and manage the equipment and software (the
"Equipment") for the exclusive use of the Customer during the Term of this
Agreement. The Department reserves the right to approve all hardware
acquisitions. The Equipment will be connected to the ClearBlue Network Service
via a high-throughput Ethernet switch.
ClearBlue will host the Customer's Service via the ClearBlue Network Service
from one of its managed services data centers located in Andover, MA, Syracuse,
NY, San Jose, CA, Vienna, VA, or Houston, TX (collectively the "Data Centers").
ClearBlue's Data Centers are physically secure server facilities with industry
standard environmental conditions for the Equipment including raised floors,
HVAC, fire detection and suppression systems and restricted access.. ClearBlue
will provide UPS protected power and diesel generator backup.
Domain Name Service
ClearBlue will provide primary and secondary Domain Name Service and will assign
IP addresses as required.
Upon termination of this Agreement Customer is required to return any
ClearBlue-assigned network numbers for reassignment.
Domain Name Assignment
ClearBlue will assist the Customer with registering or modifying any domain name
for which ClearBlue provides primary service to the ClearBlue DNS servers.
1
ClearBlue is not responsible for InterNIC, ISI or other registries' policies
about domain name assignment, for delays in registration and approval of domain
names, for clerical or other errors made by any domain name registry, or for any
decision to place a domain name on hold.
ClearBlue does not claim proprietary interest in the domain names secured by it
on behalf of its Customers. The registration and maintenance of domain names are
subject to fees assessed by the InterNIC and other agencies. During the term of
this Agreement, ClearBlue will be responsible for the payment of such fees for
domains for which ClearBlue provides primary service. Upon termination of this
Agreement, Customer is responsible for the continued payment of such fees to the
InterNIC. In accordance with InterNIC policy, any failure by the Customer to pay
such fees may result in the loss of use of the domain name.
24x7x365 Server Availability Monitoring
ClearBlue provides continuous, 24x7 monitoring of the Customer's Service.
Certain problems can be pro-actively detected by ClearBlue, while others are
detected by the Customer experiencing the problem. Whenever monitoring indicates
a problem with the Service, ClearBlue will notify the Customer's Technical
Contacts and begin problem determination and resolution.
ClearBlue will monitor certain aspects of the Customer's Equipment and/or Web
servers and will provide the Department with such information upon request.
Monitored aspects include Server and Application Response, Virtual Server DNS
Lookup, System Load Average and Uptime, File System and Swap Capacity, Kernal
and SysLog Messages, and Process Logs.
24x7x365 Live Customer Support
The ClearBlue Network Operations Center (the "NOC") provides for coordination
and resolution of problems associated with the ClearBlue provided Service.
Support is limited to the product features included in the Service, network
availability and hardware problems. The NOC operates 24x7x365
Network Status Updates
ClearBlue maintains an e-mail list, to which the Customer can subscribe, to
notify customers about planned changes to the network, current outages and
problems.
Site Statistics
ClearBlue will provide standard usage statistics, consisting of current and
historical (up to one year) usage statistics for the Customer's Website.
Tape Backup, Offsite Storage, and Site Restoration
ClearBlue will perform nightly back-ups of Customer's Service including one (1)
full tape back-up and six (6) level-one back-ups per week. ClearBlue will ship
the full tape back-up off-site for additional security for a duration of three
(3) years and one (1) full
2
back-up will be stored on-site for five (5) weeks. In the event of loss of data,
Customer will immediately contact the Customer Support Center to schedule
restoration of data from backup tapes.
ClearBlue will initiate the restoration of data within one business day. Loss of
data resulting from hardware failure will be restored immediately following the
successful installation of replacement hardware. Database back up tapes and all
log files used for reporting statistics or tracking employer searches must be
retained offsite for a period of three (3) years in accordance with U.S
Department of Labor requirements.
Lost data between backups will be restored from Oracle transaction file, or log
file using RAID technology, or from other sites.
Content Delivery Services
ClearBlue will provide a Content Delivery and Acceleration Service to the
Customer. This Delivery and Acceleration Service will be provided by ClearBlue's
Delta Edge national network system.
Third-Party Software
ClearBlue will contract with third-party contractors to procure the licenses for
use by Customer of the software specified by Customer. The Customer agrees to
adhere to the terms and conditions of the manufacturer's software license
agreement (available upon request.) ClearBlue will pass through all warrantees
or guarantees with respect to third party software. Maintenance and support of
third-party software will be provided by its manufacturer.
ClearBlue supports third-party applications to assure the software running on
the server and the server itself are functioning properly. For support of the
client-side application, customers will be referred to the specific distributor
of the application.
Database Backup and Recovery
Database Back-up and Recovery services are available to customers requesting DBA
services. ClearBlue is responsible for setup of backup scripts and
pre-formatting the tape back-ups. ClearBlue is required to provide the chosen
back-up software or back-up scripts. In some cases, depending on the platform
and database used for the Service, Customer may be required to provide and
support the backup software.
3
APPENDIX H
CLEARBLUE TECHNOLOGIES MANAGEMENT, INC.
NETWORK SERVICE DESCRIPTION
The ClearBlue Network Service (the "ClearBlue Network") consists of high
performance local area networking with access to and from the global Internet.
The ClearBlue service (the "Service") consists of a network connection between
the ClearBlue Network and the Customer site local area network.
The ClearBlue Network connection is installed, managed, and operated by
ClearBlue.
ClearBlue Circuit Provisioning
ClearBlue will contract with a local exchange carrier (LEC) to provide
connectivity between a network node and the LEC-provided smartjack (or
equivalent) at the Customer's location. This leased telecommunications facility
will be referred to herein as the "Local Loop."
A significant part of the installation process is the detailed design,
engineering and installation of the Local Loop. Any special facilities
construction required to establish telecommunications service to the Customer
site may cause some delay in installation. The logistics and cost of such
construction is the responsibility of the Customer.
Unless otherwise agreed by the parties, end to end physical management of the
Local Loop is coordinated through ClearBlue. Customer is responsible for end to
end physical management and operations for any additional circuits or extensions
it provides on the Customer side of the Service Demarcation.
Service Demarcation
The Service Demarcation is the point where ClearBlue's responsibility for the
connection ends. If Customer Premise Equipment, which consists of the CSU/DSU
and network router at the Customer's site (the "CPE") is leased from ClearBlue
or if the Customer has purchased both CSU/DSU maintenance and router maintenance
from ClearBlue, then the Service Demarcation is at the LAN interface of the
router. If the Customer has purchased CSU maintenance only, then the Service
Demarcation is at the router interface on the CSU. Otherwise, the Service
Demarcation is the termination of the Local Loop at the LEC smartjack.
Installation of any necessary cross connects or extensions on the customer-side
LEC smartjack is the responsibility of the Customer. Support beyond the Service
Demarcation will be the responsibility of the Customer, including, but not
limited to: routing, LAN integration and IP addressing, software, and locally
maintained resources.
1
Installation and Service Commencement
ClearBlue shall schedule the installation of the Service on a date mutually
agreed to by the parties. The parties expressly understand that requested
installation dates are for planning purposes only and such dates are not
guaranteed.
For Customers using CPE provided by ClearBlue, "Service Commencement" refers to
the first day in which packets of data can be sent to Customer over the
ClearBlue Network. For Customers using CPE provided by the Customer, "Service
Commencement" refers to the earlier of (a) the first day in which packets of
data can be sent to Customer over the ClearBlue Network or (b) ten (10) days
following installation and ClearBlue testing of the Local Loop.
If Customer requests a delay in the installation date, ClearBlue will
accommodate the request, provided that: (a) such delay does not exceed thirty
(30) calendar days from the original installation date, (b) ClearBlue receives
the requested delay in writing from Customer no later than ten (10) days prior
to the original installation date, and (c) Customer agrees to pay any additional
charges resulting from such delay.
Standard Domain Name Service (DNS)
ClearBlue's standard DNS service provides for primary and secondary DNS for one
domain, with up to twenty-five (25) subdomains, up to five hundred (500) host
names and up to ten (10) MX records. We will also provide secondary DNS for up
to ten additional domains. All domains must be owned by the Customer. ClearBlue
will provide primary and secondary reverse DNS for all networks assigned to the
Customer by ClearBlue and for those networks owned by the Customer for which
ClearBlue provides connectivity.
Domain Name Assignment
ClearBlue will assist the Customer with registering or modifying any domain name
for which ClearBlue provides primary service.
ClearBlue is not responsible for InterNIC, ISI or other registries' policies
about domain name assignment, for delays in registration and approval of domain
names, for clerical or other errors made by any domain name registry, or for any
decision to place a domain name on hold.
ClearBlue does not claim proprietary interest in the domain names secured by it
on behalf of its Customers. The registration and maintenance of domain names are
subject to fees assessed by the InterNIC or other agencies. During the term of
this Agreement, ClearBlue will be responsible for the payment of fees for
domains for which ClearBlue provides primary domain name service. Upon
termination of this Agreement, Customer is responsible for the continued payment
of such fees to the InterNIC. In accordance with InterNIC policy, any failure by
the Customer to pay such fees may result in the loss of use of the domain name.
Network Number Assignment
2
ClearBlue will provide and/or route two types of network numbers (a) network
numbers from its assigned address block or (b) Customer-provided network numbers
already in the possession of the Customer but requiring access through the
ClearBlue Service.
For Customer-provided network numbers, ClearBlue cannot guarantee that other
Internet Service Providers will accept and route traffic from any network number
not assigned by ClearBlue, and is not responsible for InterNIC or ARIN policy
about network number assignment. ClearBlue will limit route advertisements to
networks assigned by official registries.
ClearBlue will obtain additional network numbers on behalf of Customer, but
Customer will bear any costs incurred by ClearBlue. Customer will be required to
provide supporting documentation for their address requests.
Upon termination of this Agreement Customer is required to return any
ClearBlue-assigned network numbers for reassignment.
Connection Monitoring
ClearBlue provides continuous, 7x24 monitoring of the Customer connection.
Certain problems can be proactively detected by ClearBlue, while others are
detected by the customer experiencing the problem. Whenever monitoring indicates
a problem with the connection, ClearBlue will notify the Customer's Technical
Contacts and begin problem determination and resolution.
Network Status Updates
ClearBlue will notify the Customer about planned changes to the network, current
outages and problems.
Online Usage Statistics
ClearBlue will provide a password protected web site which will provide
automated network analysis, consisting of current and historical bandwidth usage
statistics for the Customer's connection.
Network Operations Center
ClearBlue provides for coordination and resolution on the network attachment via
the ClearBlue Network Operations Center(the "NOC") for any problems associated
with the ClearBlue provided service. The CSC operates 7x24.
3
APPENDIX M-1
MEMORANDUM OF AGREEMENT
This Agreement is hereby made by and between the New York State Department of
Labor (NYSDOL) and the Rhode Island Department of Labor & Training (RIDLT).
WITNESSETH:
WHEREAS: AMERICA'S ONE-STOP OPERATING SYSTEM (AOSOS) is a comprehensive
one-stop computer operating system funded by the U.S. Department of
Labor (USDOL) and developed by the State of New York, America's Job
Bank Service Center (AJBSC). AJBSC is a division of the NYSDOL; and
WHEREAS: AJBSC has provided software and associated Information Technology
services to States, under various grants from USDOL for over 25
years; and
WHEREAS: The federal grant process continues to provide funding for a national
system of labor exchange; and the development, implementation and
support of computer systems for the state Workforce Agencies, as
USDOL has found that this model provides a cost effective method to
fund systems development and promote the sharing of information
between the states. (Typically, USDOL provides grant money for
several years for the purpose of system development, implementation
and support. In the later years of the cycle, states are expected to
augment federal funding in the operation and enhancement of the
system. States are encouraged to combine their sources of funding and
utilize the AJBSC as a means of providing low cost, effective
services in the enhancement and maintenance of the system); and
WHEREAS: RIDLT has asked AJBSC to supply various services related to the
implementation of AOSOS for use by their Department; and
WHEREAS: AJBSC uses contractors to perform some of the tasks associated with
AOSOS and follows routine contract procedures that follow both State
and Federal Guidelines;
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein and for other good and valuable consideration, the receipt, sufficiency
and adequacy of which are mutually acknowledged by each party, it is agreed as
follows:
1. AJBSC SHALL PROVIDE OR BE RESPONSIBLE FOR PROVIDING:
a. Third party software, as needed to operate AOSOS;
b. AOSOS software and code;
c. Monitoring of the software, as necessary;
d. Software maintenance and support;
Page 1 of 7
e. Implementation support;
f. Systems support;
g. Software versioning and change control;
h. Project management;
i. Quality assurance;
j. Application documentation;
k. Installation and configuration of operating systems; and
l. Hosting Services.
2. HOSTING SERVICES: The following services, property, and equipment shall
comprise all the components for fulfilling the Hosting Services
requirements of the contract:
a. All hardware necessary to effectively host the system. The hardware to
be used is manufactured by SUN;
b. The monitoring and maintenance of the SUN hardware;
c. A UNIX based Operating System;
d. AOSOS Software to run on an Oracle Database system;
e. Daily monitoring, maintenance, and support of the Oracle Database
system;
f. Local maintenance and support of the OSOS application;
g. A Machine Room in which all the above will run, including electricity,
air conditioning, and power conditioning for the shared hardware
environment;
h. The network upon which all the above is to run;
i. The installation, setup and maintenance of a dedicated frame relay
circuit/connection between RIDLT computer operations in Cranston,
Rhode Island and NYSDOL's hosting site, presently located in Syracuse,
New York.
j. Updating all operating systems, servers and applications, as
necessary;
k. Problem determination and resolution for hardware, operating systems,
databases, servers and applications; and
l. A Helpdesk available seven days a week, 24 hours a day, for system
level support (not end-user support - but support for State IT
personnel). It shall be RIDLT's responsibility to provide help desk
function for end-user support.
3. RIDLT SHALL PROVIDE OR BE RESPONSIBLE FOR PROVIDING:
a. All Oracle licenses;
b. The workstation hardware and software in the local offices;
Page 2 of 7
c. Installation and on-going support of the OSOS client application on
local office workstations including all prerequisite hardware and
software upgrades needed to support the client software;
d. The local area networks (LAN) in the local offices;
e. The local loops and network connections from the local offices to the
statewide area network (WAN);
f. The performance - including monitoring, troubleshooting and supporting
- of the state WAN that connects the local offices to the central data
processing (DP) facility;
g. The local loop and network connection from the state WAN including the
necessary router in the central DP facility;
h. Ethernet router ports as needed to connect multiple Ethernet LAN
segments via NYS vendor specified Ethernet switches in the vendor's
data-processing facility to connect the Private Frame Relay Circuit to
the RIDLT legacy environment;
i. Verifying and providing on-going performance information on the
performance of the state WAN to NYS and/or its vendor;
j. Providing all necessary support, as required, to maintaia and/or
repair its network connections;
k. Converting all necessary RIDLT legacy systems data to the AOSOS
application;
1. Providing a Helpdesk for end-user level support.
4. COSTS, PRICING, AND PAYMENTS (See attached budget - Appendix A)
a. AJBSC will absorb all costs associated with the development of the
AOSOS CodeBase (subject to the availability of Federal Grant funding),
as well as the building and implementation of this AOSOS site;
b. RIDLT shall be responsible for the yearly hosting fees for this site
and any additional development costs authorized by Rhode Island in
advance, for items not included in this MOA;
c. The yearly hosting fee shall be due and payable monthly.
d. The cost for the first year of the contract shall be $438,558. This
first year cost includes $80,000 in one-time setup/implementation
costs (see lines 11, 12, 13, & 19 in Appendix A), which will not be
replicated in the out years (those years following the first year of
the contract).
e. The cost of providing hosting and the frame relay circuit shall be
limited to $358,558 in years one, two and three of the contract.
f. The cost of providing hosting and the frame relay circuit, for those
out years beyond years two and three, shall be subject to pass-through
cost escalation such
Page 3 of 7
that as NYSDOL costs of providing these services increase, such cost
increases shall be passed through to RIDLT on a dollar for dollar
basis. No other cost escalations for hosting and the frame relay
circuit shall occur so long as Federal Grant funding is available to
cover such costs.
f. Reimbursement Specifics:
1) All checks shall be made payable to the New York State Department
of Labor and mailed to the Administrative Finance Bureau, Room
464, New York State Department of Labor, State Office Building
Campus, Building 12, Albany, New York 12240.
2) In the event that NYSDOL incurs costs authorized by RIDLT but not
covered under this MOA the costs will be reimbursed based on Cost
Reports provided to RIDLT by NYSDOL. NYSDOL will also present
RIDLT with a Standard AC-92 voucher indicating the monies being
requested.
3) All vouchers will be submitted for approval and payment to:
Rhode Island Department of Labor & Training
Attn: Judith Cozine
1511 Pontiac Avenue Bldg. 73-3
Cranston, RI 02920
5) NYSDOL will bill RIDLT monthly. Reimbursement will be paid no
later than 45 days after the receipt thereof.
5. CHANGES TO THIS AGREEMENT:
a. Any changes to this Agreement must be submitted in writing and
mutually accepted by both parties in writing prior to work beginning
on implementing such change(s).
b. This agreement, and any future amendments to it, constitutes the
entire agreement between the parties. Any prior agreements, memoranda,
proposals, offers, or orders are hereby rendered null and void.
6. TERM AND TERMINATION:
a. This Agreement shall continue until terminated as provided herein.
b. RIDLT may terminate this agreement if NYSDOL breaches or violates any
term of this Agreement and fails to correct such breach or violation
or to undertake efforts to correct such breach or violation to RIDLT's
satisfaction within thirty (30) days after receiving notice of such
breach or violation.
Page 4 of 7
c. NYSDOL may terminate this agreement: upon RIDLT's failure to agree to
an increase in hosting fees after completion of this agreement, if
RIDLT breaches or violates any term of this Agreement and fails to
correct such breach or violation or to undertake efforts to correct
such breach or violation to NYSDOL's satisfaction within thirty (30)
days after receiving notice of such breach or violation, or with 90
days notice without stating a reason.
d. This agreement shall automatically terminate should either party lose
federal funding, the continuation of which this agreement is
predicated upon.
7. LIMITATION OF LIABILITY:
NYSDOL shall not be liable to the other party or any other person or entity
for any damages including, but not limited to, direct, indirect,
consequential, incidental or special damages, lost profits, lost savings,
loss of goodwill or otherwise, or for exemplary damages in connection with
the providing of services according to this Agreement, even if such party
has not been advised of the possibility of such damages.
8. NO WARRANTIES:
NYSDOL DOES NOT MAKE ANY WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE
SYSTEM OR THE APPLICATION, OPERATION OR USE THEREOF, THE DATA GENERATED BY
THE OPERATION OR USE THEREOF, OR ANY SUPPORT SERVICES RENDERED WITH RESPECT
TO THE SYSTEM. NYS HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, OR OF MERCHANTABLE QUALITY, OR OF FITNESS FOR ANY PURPOSE,
PARTICULAR, SPECIFIC, OR OTHERWISE, OR OF NON-INFRINGEMENT, CONCERNING THE
SYSTEM AND THE APPLICATION, OPERATION OR USE THEREOF.
9. GOVERNING LAW: This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York without regard
to principles of conflict of laws.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
below:
For: New York State Department of Labor
/s/ Lewis Stein /s/ John Novak
- ------------------------------------- ----------------------------------------
Lewis Stein John Novak
Director of Labor Finance Director - America's JobBank
Date: 11/12/02 Date: 11/1/02
------------------------
APPROVED AS TO FORM
NYS ATTORNEY GENERAL
MAR 14 2003
/s/ PETER FAVRETTO
--------------------
PETER FAVRETTO
ASSOCIATE ATTORNEY
------------------------
Page 5 of 7
For: Rhode Island Department of Labor and Training
/s/ Lee H. Arnold
- -------------------------------------
Name:
-------------------------------
Title:
------------------------------
Date: October 22, 2002
APPROVED AS TO FORM
ELIOT SPITZER
ATTORNEY GENERAL
------------------------
APPROVED AS TO FORM
NYS ATTORNEY GENERAL
MAR 14 2003
/s/ PETER FAVRETTO
--------------------
PETER FAVRETTO
ASSOCIATE ATTORNEY
------------------------
Page 6 of 7
APPENDIX A - BUDGET
Shared Hosting Costs
YEAR 1 YEAR 2 YEAR 3
---------- -------- --------
1 HOSTING FEE $ 329,758 $329,758 $329,758
2 Sun hardware/Operating System Included Included Included
3 Unix system administration Included Included Included
4 Oracle DBA Included Included Included
5 Network administration Included Included Included
6 Application support Included Included Included
7 Machine room Included Included Included
8 Helpdesk Included Included Included
9
10 Implementation
11 Setup $ 10,000 $ 0.00 $ 0.00
12 Conversion $ 22,000 $ 0.00 $ 0.00
13 Testing $ 22,000 $ 0.00 $ 0.00
14 TOTAL (LINES 1,11,12,13) $ 383,758 $329,758 $329,758
15 MONTHLY (LINE 14/12) $ 31,980 $ 27,480 $ 27,480
16
17
18
19 Frame Relay Circuit Setup / Installation $ 26,000 $ 0.00 $ 0.00
20 Frame Relay Circuit Annual Cost $ 28,800 $ 28,800 $ 28,800
21
22
23 GRAND TOTAL (LINES 14,19,20 $ 438,558 $358,558 $358,558
24 MONTHLY (LINE 23/12) $36,546.50 $ 29,880 $ 29,880
Notes:
1). Oracle licenses are required to make the OSOS application work. Rhode Island
currently has some Oracle licenses. After it is determined how to best convert
existing Rhode Island Oracle licenses an addendum to the Basic Agreement will be
made to reflect the costs of additional Oracle licenses.
2). Rhode Island will be doing their own interface programming. Should they need
assistance an addendum to the Basic Agreement will be made to reflect the costs
of this programming assistance.
Page 7 of 7
APPENDIX M-2
AMERICA'S ONE-STOP OPERATING SYSTEM (AOSOS)
CONSORTIUM CHARTER
As Amended February 25, 2003
BACKGROUND
America's One-Stop Operating System (AOSOS) is a fully-functional, comprehensive
one-stop management information system designed to meet the core business needs
common to all the America's One-Stop Operating System Consortium (AOSOS
Consortium) states as they implement the Workforce Investment Act of 1998 (WIA).
The system supports both customer self-service and mediated case management
services designed around the principles of universality, customer choice,
service integration, and performance-driven outcomes. In addition, it has
features designed to support the business functions associated with
implementation of the WIA such as customer tracking, identification of eligible
training and service providers and maintenance of performance information on
those providers. AOSOS also produces federally mandated reports associated with
United States Department of Labor, Employment and Training Administration
(USDOL/ETA)-administered programs required for one-stop career centers and has
an open design that enables it to interface and exchange data with a broad range
of state and federal systems.
The USDOL/ETA funded the development of AOSOS through a grant with the State of
New York, America's Job Bank Service Center (AJBSC). AOSOS will be supported and
enhanced by annual subscription fees as established by the AOSOS Consortium
Steering Committee that supplement the federal contribution through June 30,
2004 and then supplant the federal contribution beginning July 1, 2004. The
AJBSC, as Grantee and AOSOS Consortium Agent, is currently responsible for
ongoing development, implementation, operations, support, and maintenance.
PURPOSE
The AOSOS Consortium is a fully operational, self-governing and self-sufficient
body responsible for the AOSOS case management and reporting system described
above. The consortium enables members to confer and share knowledge, insights,
and resources while meeting common core business needs of their workforce
development systems. The AOSOS Consortium, which consists of those states
committed by formal letter to the AOSOS Consortium Steering Committee to
implement AOSOS, provides the functional requirements for ongoing system
development and maintenance priorities.
AOSOS provides a platform for case management and service delivery to both
individuals and employers that is shared by multiple programs and service
delivery providers. The AOSOS Consortium representatives must work closely with
other one-stop partners at all levels to develop features to most effectively
meet this objective.
February 25, 2003 Page 1 of 1
The purpose of this document is to formalize a charter for the AOSOS Consortium,
establishing an organization with the responsibility and authority for shaping
the ongoing development of AOSOS as a state and local tool and working with
USDOL/ETA and the AJBSC to chart the strategic direction of AOSOS.
GUIDING PRINCIPLES
- USER DRIVEN / STATE AND LOCAL TOOL
AOSOS has been designed primarily based on functionality and broad
business requirements identified by the participating states. It is
critical that future development be based on both state and local
level prioritized business requirements. The AOSOS Consortium members
jointly and equally share that responsibility.
- COLLABORATIVE DEVELOPMENT
AOSOS is a robust and comprehensive system that, based on past
experience, requires a great deal of user input into the development
process. As such, the AOSOS Consortium requires full participation
from all of its members to represent their individual organization's
interests, as well as the AOSOS Consortium's interests as a whole. The
AOSOS Consortium is a collaboration of equals and endeavors to spread
the workload equally over its members, so as to not unfairly burden a
select few members. However, its members are also committed to aiding
each other to the extent practical and strive to foster an environment
that is beneficial to all members, so each member sees value in
maintaining their membership in the AOSOS Consortium for the long run.
- CONTINUOUSLY IMPROVING PRODUCT
Consistent with the WIA guiding principle of "continuous improvement,"
the AOSOS Consortium's vision for AOSOS is that of a robust, flexible
work in progress evolving to meet the changing needs of its users and
enhance one-stop service delivery. The AOSOS Consortium will
continually prioritize suggested enhancements and work with USDOL/ETA
and the AJBSC to balance available resources.
- CUSTOMER DRIVEN DESIGN
Although AOSOS needs to be responsive to legislative mandates, Federal
policy, and State Workforce Investment Boards, the AOSOS Consortium
needs to be mindful and incorporate the needs of workforce development
professionals and end customers (employers, job seekers, and service
providers) in AOSOS.
February 25, 2003 Page 2 of 2
ROLES OF THE AOSOS CONSORTIUM
DEFINING THE BUSINESS FUNCTIONALITY AND ESTABLISHING PRIORITIES FOR THE
DEVELOPMENT AND ENHANCEMENT OF AOSOS
This is a primary and core function of the AOSOS Consortium. In carrying
out this responsibility, the AOSOS Consortium needs to identify, define and
prioritize the business requirements for the AOSOS product. In addition, it
needs to ensure that Federal requirements and State and Local interests are
appropriately represented and balanced as part of the process. USDOL/ETA
and the AJBSC recognize and support the AOSOS Consortium as the official
authority charged with determining AOSOS functional requirements and
development priorities.
WORKING WITH USDOL/ETA AND THE AJBSC TO ASSIST IN DEVELOPING THE STRATEGIC
DIRECTION FOR THE EVOLUTION OF THE AOSOS AS A PRODUCT SHARED BY MULTIPLE
STATES
The AOSOS Consortium will continually monitor and evaluate how things work
today and how it wants them to work tomorrow, with special focus on the
time after USDOL/ETA's discontinuation of annual funding for AOSOS. In
addition, any number of environmental factors has the potential to impact
the evolution of AOSOS as a product. Examples include, but are definitely
not limited to: the availability of funding based on Congressional
appropriations and/or administrative priorities within a new federal
administration; changes in program requirements; an increase or decrease in
the level of participation in the AOSOS consortium; or, technological
advances. The AOSOS Consortium will provide the necessary platform for
ongoing strategic planning and policy development for AOSOS in concert with
USDOL/ETA and the AJBSC.
STAYING ABREAST OF POLICY INITIATIVES IMPACTING SYSTEM REQUIREMENTS FOR
AOSOS FOR FUTURE DEVELOPMENT
Because AOSOS is tied very closely to requirements of the WIA,
interpretations of the current WIA are still ongoing, and changes to WIA
are likely during the pending reauthorization process, keeping up with
evolving policies is important. It is also important to monitor policy
changes in the WIA "required" one-stop programs and services.
COMMUNICATING AOSOS CONSORTIUM DECISIONS TO MEMBER STATES, DEVELOPMENT
PARTNERS, AND OTHER STAKEHOLDERS
Because of the number of players and the complexity of the AOSOS Consortium
in relationship to its partners, a strong commitment to communication in
multi-media and a variety of forums is critical.
ONGOING EVALUATION OF THE CHARTER FOR THE AOSOS CONSORTIUM
Just as environmental factors can impact the evolution of AOSOS as a
product, they may also provide the impetus to change how the AOSOS
Consortium operates over time. Therefore, one of the roles of the AOSOS
Consortium will be to
February 25, 2003 Page 3 of 3
continually reevaluate itself and develop new strategies for organizing if
the current construct no longer fits. The AOSOS Consortium States may amend
or revise the Charter at anytime as necessary to further the principles of
the AOSOS Consortium states. Revisions will be done by previous notice and
two thirds (2/3) member vote.
DEVELOPING ALLIANCES WITH OTHER STATE CONSORTIA INVOLVED IN PRODUCT
DEVELOPMENT SUPPORTING WORKFORCE DEVELOPMENT AS APPROPRIATE
As the AOSOS Consortium looks to the future of AOSOS, it may be desirable
to reach out to other state consortia working on either alternative
one-stop operating systems and/or other workforce development tools to
identify promising practices that the AOSOS Consortium may want to bring to
bear in AOSOS or to leverage resources for the benefit of all consortia.
ADVOCATING AND PROMOTING THE USE OF AOSOS BOTH INTERNALLY WITHIN THEIR
STATE AND EXTERNALLY TO OTHER STATES AND ORGANIZATIONS
The widespread use of AOSOS will encourage the sharing of information vital
to national workforce development and improve the potential for future
Federal funding for AOSOS, providing for stronger local workforce systems
and the continued availability of quality low cost software.
COOPERATING WITH THE OTHER MEMBERS OF THE AOSOS CONSORTIUM AND THE PARTNERS
IN DEVELOPMENT IN A MANNER THAT PROMOTES CAMARADERIE, AS WELL AS POSITIVE,
PRODUCTIVE, AND PROFESSIONAL OUTCOMES FOR THE PARTICIPANTS AND AOSOS AS A
PRODUCT
The AOSOS Consortium expects its membership to demonstrate professional
decorum to each other and to complete committee assignments in a timely
manner.
ACTIVELY SOLICITING INPUT AND FEEDBACK FROM AOSOS USERS IN AOSOS CONSORTIUM
STATES TO SUPPORT RECOMMENDATIONS FOR IMPROVEMENTS TO AOSOS
It is expected that members will establish systems for obtaining user
feedback and develop a process for making recommendations for enhancement
and/or changes to the AOSOS application.
RETAINING THE RIGHTS TO AOSOS SOURCE CODE AS DETERMINED BY THE AOSOS
CONSORTIUM STEERING COMMITTEE AND AS NECESSARY TO SUPPORT THE AOSOS
CONSORTIUM'S PRINCIPLES
AOSOS Consortium states shall retain the rights to the AOSOS source code as
determined in greater detail by the AOSOS Consortium Steering Committee.
Members of the AOSOS Consortium are entitled to access to the source code
and system documentation under conditions established by the AOSOS
Consortium Steering Committee.
February 25, 2003 Page 4 of 4
AOSOS CONSORTIUM MEMBERS / STAKEHOLDERS
Voting Members Non-voting Stakeholders
- -------------- -----------------------
Hawaii America's Job Bank Service Center
Kentucky USDOL/ETA
Nevada
New Jersey
New York
Rhode Island
Virgin Islands
The AOSOS Consortium Steering Committee, state contacts and other workgroup
membership lists can be found on the AOSOS Information Site located at:
http://ososinfo.ajb.org/
AOSOS CONSORTIUM MEMBERSHIP
AOSOS CONSORTIUM MEMBERSHIP ASSURANCES AND REQUIREMENTS
The following assurances are required of all AOSOS Consortium members,
whether a new or returning member, via formal letter to the AOSOS
Consortium Steering Committee:
- Agreement to the conditions and terms of the AOSOS Consortium Charter;
- Agreement to implement AOSOS, as either a hosted or non-hosted state;
- Agreement to the terms and conditions specified in the NYSDOL AOSOS
Software License; and,
- Agreement to use and abide by the terms and conditions of the AOSOS
Consortium's "Third Party Sublicense & Non-Disclosure Agreement."
In addition, AOSOS Consortium membership requires:
- Agree to enter into a "Subscription Agreement for AOSOS Services from
America's Job Bank Service Center," which includes payment of an
annual subscription fee prescribed by the AOSOS Consortium; and,
- AOSOS Consortium Steering Committee approval.
AOSOS CONSORTIUM MEMBER RIGHTS
Once a member has met the requirements and assurances listed above, each
member is:
- Entitled to representation on all AOSOS Consortium Committees, but at
a minimum is required to be represented on the AOSOS Consortium
Steering and Scope Committees;
February 25, 2003 Page 5 of 5
- Entitled to one (1) vote on all AOSOS Consortium Committees;
- Entitled to the AOSOS application, its source code, all bug fixes,
enhancements and documentation enhancements; and,
- Recognized as a licensee of the AOSOS software.
NON-VOTING AOSOS CONSORTIUM MEMBERS/AGENT
USDOL/ETA is a non-voting member of the AOSOS Consortium, which represents the
interests of other states, as well as ensuring that federal interests are being
addressed in AOSOS' system development. The AJBSC, as the AOSOS Consortium
Agent, is also a non-voting member of the AOSOS Consortium. The AOSOS Consortium
works with both the USDOL/ETA and the AJBSC to identify and document development
priorities based on available funding.
AOSOS CONSORTIUM AGENT
After July 1, 2003, the Consortium Agent will perform stewardship
responsibilities defined below on behalf of the AOSOS Consortium. The Consortium
Agent will be willingly accountable for the well being of the AOSOS Consortium
by operating in service, rather than in control. The Consortium Agent will
undertake the following responsibilities on behalf of the Consortium:
- - Fiduciary responsibility - Collecting and accounting for funds received and
spent.
- - Providing Reports to the Consortium - Status and performance reporting in
matters relating to schedules, budget, resources and technical performance.
- - Providing services as described in the "Subscription Agreement for AOSOS
Services from America's Job Bank Service Center" and the annual
AOSOS/AJBSC-developed "Statement of Work."
NEW AOSOS CONSORTIUM MEMBERS
New members are required to make a two-year commitment to the AOSOS Consortium
and are exempted from the annual subscription fee for up to one year by the
AOSOS Consortium Steering Committee. No AOSOS Consortium grant dollars or
subscription fees will be used to support implementation of AOSOS for new
members. New members are responsible for costs associated with implementation of
the AOSOS software, e.g., data conversion, software installation, technical
assistance and training. As individual member resources allow, limited "in-kind"
assistance may be available from the consortium members in various forms, i.e.,
lessons learned information, training manuals and materials, ad hoc reports
code, compatible application modules, etc.
RETURNING AOSOS CONSORTIUM MEMBERS
Former members who return to the AOSOS Consortium are not exempted from the
first year subscription fee. No AOSOS Consortium grant dollars or subscription
fees will be used to support implementation of AOSOS for returning members.
Returning members are responsible for all costs associated with implementation
of the
February 25, 2003 Page 6 of 6
AOSOS software, e.g., data conversion, software installation, technical
assistance and training. As individual member resources allow, limited
"in-kind" assistance may be available from the consortium members in
various forms, i.e., lessons learned information, training manuals and
materials, ad hoc reports code, compatible application modules, etc.
LEAVING THE AOSOS CONSORTIUM
Exiting from membership requires a letter to the Chairperson of the AOSOS
Consortium Steering Committee and the AJBSC, per the Subscription Agreement
conditions, advising of the member's planned departure. This notice should
be delivered as early as possible, but not less than two (2) months in
advance of planned exit from the AOSOS Consortium and no later than April
30th for the following fiscal year. Departure from the AOSOS Consortium
does not void the terms and conditions of the executed software license or
the requirement to continue to protect the AOSOS Consortium's intellectual
property. Whether the exiting member continues to use the AOSOS software or
not:
- They must abide by the terms of Section V., "Termination" in the
"Subscription Agreement for AOSOS Services from America's Job
Bank Service Center;"
- They must continue to abide by the terms and conditions of the
NYSDOL AOSOS Software License in matters related to the AOSOS
property;
- They must continue to use the AOSOS Consortium's "Third Party
Sublicense & Non-Disclosure Agreement" when dealing with third
parties in matters related to the AOSOS property;
- They are not entitled to any AOSOS bug fixes, enhancements, new
development or system documentation beyond the date of their
exit; and,
- They are not entitled to a subscription fee refund, in full or
partial, if departure occurs during a fiscal year.
AOSOS CONSORTIUM ORGANIZATIONAL STRUCTURE
STEERING COMMITTEE
The AOSOS Consortium Steering Committee administers the consortium and
takes responsibility for final decision-making on behalf of the AOSOS
Consortium. Each state formally committed to utilizing AOSOS as their
primary one-stop operating system will respectively identify one individual
from their state to act as a member of the AOSOS Consortium Steering
Committee. A USDOL/ETA representative will serve as a non-voting member on
the Committee. The AJBSC will also appoint one representative to serve as a
non-voting member on the Committee.
The AOSOS Consortium Steering Committee functions as the formal
decision-making body on behalf of the AOSOS Consortium. By separate
document, the AOSOS Consortium Steering Committee has developed and agreed
to AOSOS Consortium operating procedures which include, but are not limited
to: how the
February 25, 2003 Page 7 of 7
AOSOS Consortium conducts meetings; the method of member voting; protocols
for communications between member states and USDOL/ETA, the AJBSC and
others; functionality sign-offs; participation and representation on other
committees/workgroups; meetings; and other operational/organizational
decisions as needed. These procedures also outline how functional
requirements will be developed, documented and approved, then communicated
to the Consortium Agent and its contractor(s).
The operating procedures also describe the frequency and manner with which
the AOSOS Consortium Steering Committee and full AOSOS Consortium
membership meet. Any AOSOS Consortium Steering Committee member, USDOL/ETA,
or the AJBSC may request meetings. Participation in meetings by
non-Consortium state staff, other stakeholders, and/or other invitees is
permitted with prior approval of the Steering Committee.
Although it will be important for them to play an active role in the
discussion of most issues, neither the USDOL/ETA, nor the AJBSC will
participate in the decisions for final recommendations or decisions of the
AOSOS Consortium Steering Committee on behalf of the AOSOS Consortium.
However, decisions affecting federal resources or involving federal
compliance responsibilities made by the AOSOS Consortium Steering Committee
will have to have the affirmative consent of the USDOL/ETA before becoming
official.
SUB-COMMITTEE/WORKGROUP STRUCTURE
The AOSOS Consortium Steering Committee, through AOSOS Consortium operating
procedures, may decide at any time to develop a workgroup or workgroups to
carry out the functions of the AOSOS Consortium. Such workgroups will have
no final decision-making authority and will be charged with making
recommendations to the AOSOS Consortium Steering Committee for action. When
appointing a workgroup, the AOSOS Consortium Steering Committee will
develop a specific charter for the group, which should include:
identification of a facilitator/convener for the workgroup; the purpose the
workgroup is intended to meet, specific deliverables, and a time frame for
the deliverables. Any member state may choose to be represented on a
workgroup, however where possible, workgroups should be no more than 6-8
members. The AOSOS Consortium Steering Committee may choose to appoint
other partners, subject matter experts or stakeholders to any workgroup as
needed.
PARTNERSHIPS / RELATIONSHIPS
There are at least three entities with which the AOSOS Consortium will be
interacting on a regular basis. The AJBSC, as the entity responsible for meeting
the contractual obligations to the USDOL/ETA in PY2003 for maintenance and
limited development of AOSOS and to the AOSOS Consortium as its agent for new
development and enhancements, is a non-voting member of the AOSOS Consortium and
a critical partner. USDOL/ETA currently is
February 25, 2003 Page 8 of 8
one source of funds for AOSOS and has interests in making AOSOS successful on
behalf of all states as well as ensuring that federal interests in AOSOS are met
where appropriate. As such, USDOL/ETA is a non-voting member of the AOSOS
Consortium and also a critical partner.
The AOSOS Consortium has shared interests with the CareerOneStop Managing
Partners, which operate as a federal/state board governing the ongoing
development of the national electronic workforce development tools, specifically
the CareerOneStop products (formerly known as the America's Career Kit tools).
Therefore, there may be shared issues between the AOSOS Consortium and the
CareerOneStop Managing Partners in the future that will require joint action.
The AOSOS Consortium also has shared interests with the USDOL/ETA-facilitated
"Super Consortium," and is committed to participating in the group to identify
and pursue ways to leverage resources, thereby together improving the automated
support of our respective workforce development delivery systems.
February 25, 2003 Page 9 of 9
ACCEPTANCE OF THE AOSOS CONSORTIUM CHARTER
WRITTEN COMMITMENT TO AOSOS
I have read the charter, agree to the guiding principles laid out herein, and
commit to abide by the roles and responsibilities of Consortium members laid out
in the AOSOS Consortium Charter. I further recognize that there is an inherent
commitment of staff time necessary to participate in the Consortium and its
related committees. I understand that this staff time is necessary to develop
the requirements, further enhance, and install new versions of the AOSOS
product, and agree to support the participation of staff from my State in this
effort.
By signing this document, I hereby ratify this charter and commit my State to
implementing AOSOS as our One-Stop operating system. I further certify that I
have the authority to make this type of commitment on behalf of the State of
Hawaii.
Hawaii
State
Nelson B. Befitel
Authorized State Representative (Printed Name)
/s/ Nelson B. Befitel
- -----------------------------------------
Authorized State Representative Signature
Director, Department of Labor and Industrial Relations
Authorized State Representative Title (Printed)
11/10/03
Date
February 25, 2003 Page 10 of 10
ACCEPTANCE OF THE AOSOS CONSORTIUM CHARTER
WRITTEN COMMITMENT TO AOSOS
I have read the charter, agree to the guiding principles laid out herein, and
commit to abide by the roles and responsibilities of Consortium members laid out
in the AOSOS Consortium Charter. I further recognize that there is an inherent
commitment of staff time necessary to participate in the Consortium and its
related committees. I understand that this staff time is necessary to develop
the requirements, further enhance, and install new versions of the AOSOS
product, and agree to support the participation of staff from my State in this
effort.
By signing this document, I hereby ratify this charter and commit my State to
implementing AOSOS as our One-Stop operating system. I further certify that I
have the authority to make this type of commitment on behalf of the State of
Kentucky.
Kentucky
State
Willie H. Lile
Authorized State Representative (Printed Name)
/s/ W. H. Lile 9/24/03
- -----------------------------------------
Authorized State Representative Signature
Secretary, Cabinet for Workforce Development
Authorized State Representative Title (Printed)
- ----------------------------
Date
February 25, 2003 Page 10 of 10
ACCEPTANCE OF THE AOSOS CONSORTIUM CHARTER
WRITTEN COMMITMENT TO AOSOS
I have read the charter, agree to the guiding principles laid out herein, and
commit to abide by the roles and responsibilities of Consortium members laid out
in the AOSOS Consortium Charter. I further recognize that there is an inherent
commitment of staff time necessary to participate in the Consortium and its
related committees. I understand that this staff time is necessary to develop
the requirements, further enhance, and install new versions of the AOSOS
product, and agree to support the participation of staff from my State in this
effort.
By signing this document, I hereby ratify this charter and commit my State to
implementing AOSOS as our One-Stop operating system. I further certify that I
have the authority to make this type of commitment on behalf of the State of
Nevada.
Nevada
State
Myla C. Florence
Authorized State Representative (Printed Name)
/s/ Myla C. Florence
- -----------------------------------------
Authorized State Representative Signature
Director
Authorized State Representative Title (Printed)
12/30/03
Date
February 25, 2003 Page 10 of 10
ACCEPTANCE OF THE AOSOS CONSORTIUM CHARTER
WRITTEN COMMITMENT TO AOSOS
I have read the charter, agree to the guiding principles laid out herein, and
commit to abide by the roles and responsibilities of Consortium members laid out
in the AOSOS Consortium Charter. I further recognize that there is an inherent
commitment of staff time necessary to participate in the Consortium and its
related committees. I understand that this staff time is necessary to develop
the requirements, further enhance, and install new versions of the AOSOS
product, and agree to support the participation of staff from my State in this
effort.
By signing this document, I hereby ratify this charter and commit my State to
implementing AOSOS as our One-Stop operating system. I further certify that I
have the authority to make this type of commitment on behalf of the State of New
Jersey.
New Jersey
State
JoAnn Hammill
Authorized State Representative (Printed Name)
/s/ JoAnn Hammill
- -----------------------------------------
Authorized State Representative Signature
Assistant Commissioner - Workforce New Jersey
Authorized State Representative Title (Printed)
July 29, 2003
Date
February 13, 2003 Page 10 of 10
ACCEPTANCE OF THE AOSOS CONSORTIUM CHARTER
WRITTEN COMMITMENT TO AOSOS
I have read the charter, agree to the guiding principles laid out herein, and
commit to abide by the roles and responsibilities of Consortium members laid out
in the AOSOS Consortium Charter. I further recognize that there is an inherent
commitment of staff time necessary to participate in the Consortium and its
related committees. I understand that this staff time is necessary to develop
the requirements, further enhance, and install new versions of the AOSOS
product, and agree to support the participation of staff from my State in this
effort.
By signing this document, I hereby ratify this charter and commit my State to
implementing AOSOS as our One-Stop operating system. I further certify that I
have the authority to make this type of commitment on behalf of the State of New
York.
New York
State
Michael J. Nevins
Authorized State Representative (Printed Name)
/s/ Michael J. Nevins
- -----------------------------------------
Authorized State Representative Signature
Chief Information Officer
Authorized State Representative Title (Printed)
July 22, 2003
Date
February 25, 2003 Page 10 of 10
ACCEPTANCE OF THE AOSOS CONSORTIUM CHARTER
WRITTEN COMMITMENT TO AOSOS
I have read the charter, agree to the guiding principles laid out herein, and
commit to abide by the roles and responsibilities of Consortium members laid out
in the AOSOS Consortium Charter. I further recognize that there is an inherent
commitment of staff time necessary to participate in the Consortium and its
related committees. I understand that this staff time is necessary to develop
the requirements, further enhance, and install new versions of the AOSOS
product, and agree to support the participation of staff from my State in this
effort.
By signing this document, I hereby ratify this charter and commit my State to
implementing AOSOS as our One-Stop operating system. I further certify that I
have the authority to make this type of commitment on behalf of the State of
Rhode Island.
Rhode Island
State
Judith E. Cozine
Authorized State Representative (Printed Name)
/s/ Judith E. Cozine
- -----------------------------------------
Authorized State Representative Signature
Assistant Director
Authorized State Representative Title (Printed)
10-29-03
Date
February 25, 2003 Page 10 of 10
ACCEPTANCE OF THE AOSOS CONSORTIUM CHARTER
WRITTEN COMMITMENT TO AOSOS
I have read the charter, agree to the guiding principles laid out herein, and
commit to abide by the roles and responsibilities of Consortium members laid out
in the AOSOS Consortium Charter. I further recognize that there is an inherent
commitment of staff time necessary to participate in the Consortium and its
related committees. I understand that this staff time is necessary to develop
the requirements, further enhance, and install new versions of the AOSOS
product, and agree to support the participation of staff from my State in this
effort.
By signing this document, I hereby ratify this charter and commit my State to
implementing AOSOS as our One-Stop operating system. I further certify that I
have the authority to make this type of commitment on behalf of the State of
VIRGIN ISLANDS.
VIRGIN ISLANDS
State
Cecil R. Benjamin
Authorized State Representative (Printed Name)
/s/ Cecil R. Benjamin
- -------------------------------------
Authorized State Representative
Signature
Commissioner of Labor
Authorized State Representative Title (Printed)
December 20, 2004
Date
February 25, 2003 Page 10 of 10
ADDITIONALLY IN WITNESS WHEREOF, the parties hereto have executed this
Charter as of the date first above written.
AOSOS CONSORTIUM CHARTER
Agency Certification
"In addition to the acceptance of this
Charter, I also certify that original
copies of this signature page will be
attached to all other exact copies of
this Charter."
THE PEOPLE OF THE STATE OF NEW YORK
BY: /s/ Edward E. Snyder
------------------------------------
NYS DEPARTMENT OF LABOR
NAME: EDWARD E. SNYDER
TITLE: ASSOCIATE ACCOUNTANT
FEB - 2 2004
APPROVED
ALAN G. HEVESI
STATE COMPTROLLER
- --------------------------
APPROVED
DEPT. OF AUDIT & CONTROL
FEB 23 2004
- ------------------------
FOR THE STATE COMPTROLLER
- --------------------------