Exhibit 10(p)(ii)
JANUARY 1, 200l TO
JUNE 30,2002
BPERS01
06/08/01
AGREEMENT made as of the 22nd day of February 2002, between the City of New
York, acting through the Department of Social Services of the Human Resources
Administration (hereinafter called "Department" or "Social Services District")
with offices located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and American
Medical Alert Corporation (hereinafter called "Contractor" or "Supplier" or
"Provider"), with offices located at 0000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx
00000
W I T N E S S E T H:
WHEREAS, the Department's Home Care Services Program (hereinafter "HCSP")
provides a program of personal home care services for individuals eligible for
such services, pursuant to applicable Federal and State laws and regulations;
and
WHEREAS, the Department, pursuant to Section 367-g of the Social Services
Law and Title 18 NYCRR, Section 505.33, may authorize personal emergency
response services (hereinafter "PERS") to be provided to individuals whom the
Department or its designee has determined to be eligible to receive such
services; and
WHEREAS, the Department's program of personal cart services includes, but
is not limited to, Supervisory and Assessment Nursing Visits and Housekeeper and
Home Attendant Services components; and
WHEREAS, the HCSP instituted a program designed to allow home care services
clients, living alone, to call for assistance, by using an electronic call
device; and
WHEREAS, the parties hereto entered into an Agreement for the provision of
such services, for the period from July 1, 1999 through June 30, 2000, which
Agreement was thereafter extended for the period from July 1, 2000 through
December 31, 2000; and
WHEREAS, the Contractor has been providing personal emergency response
services to date; and
WHEREAS, a Request for Proposals for a new solicitation for such
services has been prepared and is scheduled for release. A new contract is as
yet unavailable to continue the provision of such services and replace the
existing contract, the absence of which would result in HRA being without
essential Personal Emergency Response Services to serve the needs of the
Department's clients eligible to receive such services; and
WHEREAS, HRA has a compelling need for the continuation of Contractor's
services, and pursuant to the provisions of Section 3-04 of the Procurement
Policy Board Rules, has negotiated this Agreement with the Contractor; and,
further
WHEREAS, the Department has requested the Contractor to provide PERS in
accordance with the terms and conditions contained herein, and the Contractor is
ready, willing, and able to do so.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties have agreed, and do hereby agree, as follows:
PART I
ARTICLE 1. TERM OF PERFORMANCE
The term of performance for this Agreement shall be for a period of
eighteen (18) months, from January 1, 200l through June 30, 2002, unless sooner
terminated pursuant to the terms hereof.
ARTICLE 2. DEFINITIONS
A. Electronic Call Device (hereinafter "ECD") -- the Contractor's
electronic call service system, which consists of a two-way voice base
(Help console), a help button (Personal Transmitter), a panic button at
the primary entrance, an activator mounted in the bathroom, and smoke
detector. This equipment incorporates an emergency response activator
and an emergency response communicator as required by 18 NYCRR Section
505.33.
B. Electronic Communication Equipment (hereinafter "PERS equipment") --
shall mean the Contractor's ECD equipment that electronically signals a
monitoring agency for help via recipient telephone lines.
C. Emergency Responder -shall mean a recipient's neighbor, family member,
or any other person who, at the recipient's request, has agreed to
respond to a signal for help when notified by the ERC.
D. Emergency Response Activator --shall mean an electronic device that the
recipient presses or otherwise activates to send a signal for help to
the monitoring agency.
E. Emergency Response Communicator -- shall mean an electronic unit
connected to a recipient's telephone line. The emergency response
communicator accepts a signal for help from the emergency response
activator and also has its own device to generate a signal for help. It
sends the signal via telephone lines to the monitoring agency.
F. Emergency Response Organization -- shall mean police or fire
department, an ambulance service, a hospital or other entity that the
recipient has designated to respond to signals for help when notified
by the ERC or the Emergency Responder.
G. Funds -- shall mean money or anything of value transferred by the
Department or MMIS or both to the Contractor in accordance with this
Agreement, and shall include, but shall not be limited to rate
payments.
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H. MMIS -- shall mean the New York State Department of Health Medicaid
Management Information System.
I. Monitoring Agency -- shall mean an agency (hereinafter "Emergency
Response Center" or "ERC") that is capable of receiving signals for
help from a recipient's PERS equipment 24 hours per day, seven (7) days
per week; determining whether an emergency exists; and notifying an
emergency response organization or an emergency responder that the PERS
recipient needs emergency help.
J. Personal Emergency Response Services (hereinafter "PERS") -- shall mean
(1) the provision and maintenance of electronic communication equipment
in the home of a recipient which signals a monitoring agency for help
when activated by the recipient, or after a period of time if a timer
mechanism has not been rest, or by any other activating method, and (2)
the continuous monitoring of such signals by trained operators and, in
case of receipt of such signal, the immediate notification of such
emergency response organizations or person, if necessary, as the
recipient has previously specified.
K. Recipient -- shall mean a person determined by the Department to be
eligible for and authorized by the Department to receive program
services in accordance with this Agreement.
L. Recipient Data Record -- a record of recipient information that must
contain the following information:
1. The recipient's name, telephone number and address, including his
or her apartment number and floor, if applicable;
2. The recipient's personal medical history, including his or her
age, sex, medical condition, diagnosis, and other relevant
medical history;
3. The name, telephone number, and address of the person or persons
whom the recipient has designated as the emergency responder
responders;
4. The name, telephone number, and address of the person whom the
recipient has designated as his or her representative, if
different from an emergency responder;
5. The name, phone number, and address of the police department,
fire department, ambulance service, hospital, or other entity
that the recipient has designated as an emergency response
organization;
6. The recipient's written authorization for the emergency response
organization and an emergency responder to enter his or her home
and provide emergency treatment and transportation; provided that
the Department has obtained the recipient's authorization
pursuant to Article 4.A.2.c., below.
7. The name, telephone number, and address of the recipient's
physician and the recipient's preferred hospital.
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ARTICLE 3. EQUIPMENTt
A. Pursuant to 18 NYCRR, Sec. 505.33, subsection (g), all PERS equipment
must be approved by the Federal Communications Commission and meet the
Underwriters Laboratories, Inc. (hereinafter "UL") safety standard
number 1637, which is the UL safety standard for the home health care
signaling equipment.
B. The Contractor agrees to provide to the Department as many ECD's as the
Department may require during the term of this Agreement. The ECDs
shall include the following:
1. An emergency response activator that is activated either by
breath, by touch, or some other means and is usable by persons
who are visually or hearing impaired or physically disabled.
2. An emergency response communicator that is attached to the
recipient's telephone line that will not interfere with normal
telephone use. It must be capable of operating without external
power during a power failure at the recipient's home in
accordance with all requirements for home health care signaling
equipment with stand-by capability.
C. Pursuant to Title 18, section 505.33, subsection (g) of the NYCRR, the
monitoring agency must be capable of simultaneously responding to
multiple signals for help from:
1. a primary receiver and back-up receiver, which must be
independent and interchangeable;
2. a back-up information retrieval system;
3. a clock printer, which must print out the time and date of the
emergency signal, the recipient's identification code, and the
emergency code that indicates whether the signal is active,
passive, or a responder test;
4. a back-up power supply;
5. a separate telephone service; and
6. a telephone line monitor, which must give visual and audible
signals when an incoming telephone line is disconnected for more
than ten (10) seconds.
ARTICLE 4. SCOPE OF SERVICES
A. Responsibilities of the Department
1. The Department, or its designee, shall determine whether an
individual is eligible to receive PERS, and shall authorize PERS
for individuals whom it determines eligible to receive PERS, and
for reauthorizing PERS for recipients. The Department's
eligibility determinations, authorizations, and reauthorizations
for PERS shall be made in accordance with subsection (c) of
section 505.33 of Title
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18 NYCRR and such directives to social services district as the
New York State Department of Social Services may issue.
2. If the Department determines that a person may be eligible for
PERS, performs the comprehensive assessment, and authorizes PERS
services, the Department shall:
a. ensure that the recipient has designated in writing the
name, telephone number and address of the emergency response
organization; one emergency responder or, if possible, two
(2) emergency responders; a representative who may be the
same person as an emergency responder; the client's
physician; and the client's choice of preferred hospital;
b. verify that the emergency response organization selected by
the recipient is aware of its designation and is willing and
able to assume that responsibility;
c. obtain the recipient's authorization for the emergency
response organization and emergency responder to enter the
recipient's home, to provide emergency treatment, and
provide transportation;
d. notify the Contractor in writing, including but not limited
to, electronic transmission, or by mail or facsimile
transmission, on the day of the PERS authorization and
inform the Contractor
i.) of the name, address, and telephone number of the
recipient and
ii.) that the Contractor must telephone the recipient or
the recipient's representative that same day to
arrange a mutually convenient time for the Contractor
to install the PERS equipment into the recipient's
functioning telephone line; and
iii.) that the Contractor must install the PERS equipment
within seven (7) business days after the day the
Contractor receives a written PERS authorization from
the Department and that, if the Contractor cannot
install the equipment within this seven (7) day
period, it must immediately notify the Department.
3. Upon a change in a recipient's physical circumstances, medical
condition, or mental status during the authorization period, the
Department shall send to the Contractor the information regarding
these changes so that the Contractor may update the recipient's
data record.
4. The Department shall monitor the Contractor's provision of PERS
equipment and services. Monitoring activities may include, but
not be limited to, the following:
a. Monitoring the timeliness of the Contractor's installation,
maintenance, and removal of PERS equipment;
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b. monitoring the timeliness and efficiency of the Contractor's
responses to emergency signals from the recipient;
c. monitoring all complaints by recipients regarding the
Contractor which should include ascertaining the recipient's
satisfaction with, and the reliability of, the PERS
equipment; and
d. monitoring the timeliness of the Contractor's reports of
emergencies, which should include collecting data and
documentation of the Contractor's reports or emergencies and
non-emergency signals.
5. Determination to discontinue PERS
On the day that the Department determines that PERS are no longer
appropriate for a recipient, the Department shall:
a. notify the Contractor in writing it that the PERS equipment
must be removed and the Contractor must telephone the
recipient or the recipient's representative to arrange a
mutually convenient time for the PERS equipment removal.
b. the Contractor must remove the PERS equipment within seven
(7) business days after the day the Contractor receives the
Department's written notification that PERS equipment must
be removed.
B. RESPONSIBILITIES OF CONTRACTOR
1. The Contractor shall provide PERS to recipients whom the
Department has determined eligible to receive PERS and has
authorized or reauthorized to receive PERS. The Contractor shall
provide PERS in accordance with subdivisions (a) and (f) of
Section 505.33 of Title 18 NYCRR and such directives to PERS
providers as the New York State Department of Social Services may
issue. The Contractor shall be responsible for implementing any
and all changes required under all applicable laws, rules and
regulations.
2. The Contractor shall properly install all PERS equipment into the
recipient's functioning telephone line and furnish all supplies
necessary for installing the PERS equipment. Such installation
may require the removal of previously installed PERS equipment.
a. On the day the Contractor receives the Department's
telephoned PERS authorization, the Contractor must telephone
the recipient or the recipient representative to arrange a
mutually convenient time for the Contractor to install the
PERS equipment into the recipient's functioning telephone
line. The Contractor shall install the PERS equipment within
seven (7) business days from the day it receives the
Department's written PERS authorization. If the Contractor
is unable to install the PERS equipment within this seven
(7) day period, the Contractor shall notify the Department
immediately.
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b. On the day that the Contractor installs the PERS equipment
the Contractor shall do the following:
i.) notify the Department by telephone that the equipment
has been installed;
ii.) instruct the recipient regarding the use of the PERS
equipment and give the recipient simple written
instructions that describe these procedures;
iii.) inform the recipient that he or she should
immediately notify the Contractor or the Department
if the equipment malfunctions; and
iv.) inform the recipient that he or she may call the ERC
when he or she wants to test the PERS equipment or
when he or she has questions regarding the PERS
equipment.
c. Within seven (7) business days after the day the PERS
equipment is installed the Contractor shall forward to the
Department, by mail or facsimile machine, a written
confirmation that the equipment has been installed and that
recipient has been instructed on how to use the equipment.
This confirmation shall be signed by a representative of the
Contractor and by the recipient or the recipient's
representative.
3. The Contractor shall maintain all installed equipment PERS in
proper working order.
a. The Contractor shall monitor all installed PERS equipment to
insure that the equipment operates properly at all times.
b. The Contractor shall replace PERS equipment batteries when
necessary, at no additional cost to the Department or the
recipient.
c. Within twenty-four (24) hours after the Contractor is
notified that any PERS equipment has malfunction, the
contractor shall repair or replace the equipment at no
additional cost to the Department or the recipient. The
Contractor may be notified that the PERS equipment has
malfunctioned, by any one or more of the following: the
Department, the recipient, the recipient's representative,
or another responsibly party.
d. When any equipment is repaired or replaced the Contractor
shall notify the Department by telephone within 24 hours.
4. The Contractor shall maintain the following records at no
additional cost to the Department:
a. a recipient data record for each recipient;
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i.) The Contractor shall update the recipient data record
at least once every six (6) months by contacting the
Department.
ii.) The Contractor shall also update the recipient data
records whenever the Department notifies the
Contractor that changes should be made to the
recipient's data record.
b. a record of the Contractor's instructions to the recipient
regarding his or her use of the PERS equipment;
c. a record of the installation and removal of PERS equipment;
d. a record of the maintenance of the PERS equipment, and of
any repairs or replacements of malfunctioning equipment that
were necessary;
e. a record of the ERC's 24-hour monitoring of recipients;
f. a record of each signal for help from a recipient's PERS
equipment that the ERC receives and the ERC's response to
the signal; and
g. a record of recipients who the ERC monitors each month.
5. Emergency Response Center
a. The Contractor shall ensure that the ERC performs the
following activities when the ERC receives a signal for help
from a recipient's PERS equipment:
i.) establish immediate verbal contact with the recipient
via the incoming signal to determine whether an
emergency exists at the recipient's home;
ii.) retrieve the recipient's data record;
iii.) if unable to establish immediate verbal contact with
a recipient, immediately notify an emergency
responder that the recipient has signaled for help;
iv.) maintain appropriate contact with the recipient, the
emergency responder, or the emergency response
organization; and
v.) monitor the provision of emergency services to verify
that these services have been provided and that the
emergency at the recipient's home has been resolved.
b. The Contractor shall telephone the Department by the end of
the first (1st) business day after an emergency occurs and
inform the Department of the nature of the emergency and how
it was resolved.
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i.) The Contractor shall forward to the Department, by
mail or facsimile machine, a written report of the
emergency within five (5) business days after the day
the emergency occurred. This report shall contain at
least the information described in paragraph 4,
subsections (e) and (f), of this Article 4.
c. The Contractor shall ensure that the ERC will continuously
monitor and respond to signals for help from recipients'
PERS equipment during power failures, mechanical
malfunctions, or other technical emergencies.
d. The Contractor shall assure that the ERC's staff will be
trained on operational and technical aspects of the PERS
equipment. This training shall include testing procedures,
emergency reporting and response procedures, and servicing.
6. Removal of PERS Equipment
The Contractor shall remove PERS equipment from a recipient's
home only when notified to do so by the Department. Such notice
shall be in writing, including but not limited to electronic
transmission, mail or facsimile machine.
a. On the day that the Contractor receives written notice to
remove a recipient's PERS equipment, the Contractor shall
telephone the recipient or the recipient's representative to
arrange a mutually convenient time for the equipment's
removal.
b. The Contractor shall remove a recipient's PERS equipment
within seven (7) business days after the day the Contractor
receives the Department's written notification to remove the
PERS equipment
c. On the day the PERS equipment is removed, the Contractor
shall notify the Department by telephone of the equipment
removal.
d. Within five (5) business days after the PERS equipment is
removed, the Contractor shall forward to the Department, by
mail or facsimile machine, a written confirmation that the
PERS equipment has been removed. The confirmation shall be
signed by a representative of the Contractor and the former
recipient or his or her representative.
7. Indemnification
The Contractor agrees to indemnify and hold harmless the
Department and the New York State Department of Social Services
and their employees, officers, and agents against any liability
resulting from the Contractor's performance or failure to perform
in accordance with the terms of this Agreement.
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ARTICLE 5. TERMS OF PAYMENT
1. CONTRACT AMOUNT
A. Total payment to the Contractor through MMIS is estimated to be
$5,100,000. This amount is based upon the installation rate, and the
monthly monitoring rate multiplied by 1) the anticipated number of
current clients receiving this service, and 2) by the estimated number
of new clients that may, during the contract term, start to receive
this service.
B. The maximum amount payable by the Department under this Agreement shall
not exceed $510,000.
C. The amounts specified in A. and B., above, are based upon an estimated
12,000 one-time installations during the term of the Agreement, at a
rate of $65 per installation, and a $30 per month monitoring charge for
the estimated 8,000 PERS units in use by HRA clients at any one time
during the term.
2. PAYMENT
A. All payments for PERS services to a recipient will cease during the
seven (7) day period specified in Article 4.B.6.b., as of the day
during that period that the PERS equipment is removed. Notice to the
Contractor to remove PERS shall be deemed to have been received on the
date an email or FAX is sent by HRA, on the date receipt of certified
mall is signed for as received, or, if by delivery by hand, on the date
such mail is signed for as received.
B. The Contractor shall not be reimbursed for PERS provided to persons not
determined by Department to be eligible and authorized to receive PERS.
C. The Contractor shall submit billing statements to MMIS setting forth
the installation charges, monthly monitoring charges, and recipient
information.
D. The Contractor shall not be reimbursed for services rendered unless the
claim for reimbursement is verified by xxxxxxxx submitted in accordance
with the time frames and billing procedures established by the
Department, MMIS, or both.
3. EXPENDITURES
A. The Contractor shall make no expenditures with funds provided under
this Agreement except those expenditures properly incurred pursuant to
and during the performance period of this Agreement. No invoice shall
be approved by the Department until all reports previously requested
have been received. The Contractor's final payment shall not be
approved by the Department until the final report has been received and
approved by the Department. All books, records, reports, or materials
deemed necessary by the Department to substantiate the validity of
claims for reimbursement shall be made available for review.
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B. As the period of performance contemplated by this Agreement involves
performance by the Contractor in a subsequent City Fiscal Year, funding
for that period is subject to the appropriation of funds for that City
Fiscal Year and the availability thereof.
C. The Contractor, acknowledging that this Agreement is funded in whole or
in part by funds secured from the Federal, New York State, or New York
City Government, agrees that should there be a reduction or
discontinuance of such funds by action of the Federal, State, or City
Government, the City of New York and the Department shall have, in
their sole discretion, the right to terminate this Agreement in whole
or in part, or to reduce the funding and level of services of this
Agreement as result of such action by the Federal, State, or City
Government.
D. In the case of the termination option referred to in paragraph C,
above, any such termination shall take effect immediately upon the date
specified in written notice thereof to the Contractor.
E. The termination of the Department and City, set forth in paragraphs C
and D above, are independent and separate rights in addition to any
other rights of termination or modification provided by this Agreement,
by law, or by relevant regulation, and supersede any and all rights or
actions the Contractor may have under any provision of this Agreement
to the contrary.
F. The Department may, at its option, withhold for the purpose of set-off,
any monies due to the Contractor under this Agreement up to the amount
of any disallowance or questioned billing resulting from any audits of
the Contractor with regard to this Agreement or any other agreement
between the parties hereto, including any agreement for a term
beginning prior to the commencement date of this Agreement.
ARTICLE 6. LIQUIDATED DAMAGES
A. If the Contractor is not able to:
1. respond to a recipient's or the Department's request for
maintenance and service of an ECD within twenty-four (24) hour
following receipt of such notification; or
2. get the ECD operating or supply a fully functioning ECD within
twenty-four (24) hours following receipt of said notification;
the Contractor shall, at the discretion of the Department, pay to the
Department, or at the Department's option, the Department may deduct
from any payment due or to become due to the Contractor, a pro-rated
monthly monitoring charge, based upon the monthly charge specified in
Article 5.1.C. for the ECD, as fixed and agreed liquidated damages.
B. If there are interruptions in the services provided by the Contractor
that total 24 hours or more during a monthly billing period that are
not the result of an improper, faulty or nonoperational phone system,
the Contractor shall, at the discretion of the Department,
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pay to the Department, or at the Department's option, the Department
may deduct from any payment due or to become due to the Contractor, a
pro-rated monthly monitoring charge, based upon the monthly charge
specified in Article 5.1.C. for the period of such interruptions, as
fixed and agreed liquidated damages.
ARTICLE 7. NON-LIABILITY OF THE DEPARTMENT
A. Neither the Department nor the City of New York shall be liable for any
payment made or any obligation incurred in connection with the
discharge of any employee by the Contractor.
B. Nothing in this Agreement shall impose any liability or duty on the
Department or the City of New York for any loss of equipment due to the
acts, omissions, or obligations of the recipients or their
representatives.
ARTICLE 8. SALARY AND WAGE LIMITATIONS
A. During the term of this Agreement, the Department may, in its sole
discretion, increase or otherwise amend the total not-to-exceed amount
payable to the Contractor for additional salaries or wages, including
fringe benefits and adjustments and cost of living adjustments, for
services performed under this Agreement (collectively referred to as
"wages") to any employee in a key position or title, provided, however,
that any such increase in wages shall be paid in accordance with the
Policy and Approval Procedure for Contract Employee Pay Increases and
Adjustments promulgated by the City of New York. No such increase in
wages shall become effective unless and until approved by the
Department in writing and by any other governmental entity the approval
of which shall then be required.
B. Notwithstanding any other provision in this Agreement to the contrary,
the Department may, in its sole discretion, deem payments or
retroactive wage increases resulting from determinations made in
accordance with Section A, above, or an approved collective bargaining
agreement covering the Contractor's employees, to be allowable and
reimbursable expenses of the Contractor and may otherwise increase or
amend the total not-to-exceed amount for such expenses, consistent with
the Policy and Approval Procedure for Contract Employee Pay increase
and Adjustments promulgated by the City of New York. Such payment(s)
shall be in accordance with all other applicable City and Department
politics and guidelines.
ARTICLE 9. MOST FAVORED CUSTOMER
The Contractor warrants and represents that the prices, warranties, benefits,
and terms set forth herein are at least equal to or more favorable to the City
than the prices, warranties, benefits, and terms now charged or offered by the
Contractor to other customers under similar circumstances, terms, and
conditions, or that may be charged or offered during the term hereof for the
same or substantially similar products or services defined in this Agreement. If
at any time during the term hereof, the Contractor enters into an agreement or a
basis that provides prices, warranties, benefits, or terms more favorable than
those provided the City herein, the Contractor shall, within thirty (30)
calendar days thereafter notify the City of such facts. Regardless of whether
such
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notice is sent by the Contractor or received by the City, this Agreement shall
be deemed amended effective retroactively to the effective date of the more
favorable agreement, provided that the City shall have the right and option at
any time to decline or to accept any such change. In the event the City declines
such amendment, the amendment shall be deemed null and void. If the Contractor
is of the opinion that an apparently more favorable price, warranty, benefit, or
term charged or offered to a customer during the term hereof is not in fact more
favorable, the Contractor shall promptly notify the Department's Commissioner in
writing setting forth, in detail, the rationale for its opinion. The
Commissioner's determination, after due consideration, to accept or reject such
written explanation is final. If the Commissioner rejects the Contractor's
explanation, this Agreement shall be deemed automatically amended effective
retroactively to the effective date of the more favorable agreement.
ARTICLE 10. INDIVIDUAL FILES
In addition to information the Contractor is required to maintain, the
Contractor shall include any other information the Department may require. Such
files shall be readily identifiable from those relating to other activities of
the Contractor.
ARTICLE 11. STATISTICAL RECORDS AND REPORTS
A. The Contractor shall maintain all Department required fiscal and
programmatic statistical records and shall produce such records in a
time and manner acceptable to the Department. The Contractor shall also
arrange for the Department to have direct access to the Contractor's
fiscal and programmatic records and data relating to the services
provided pursuant to this Agreement.
B. Financial Records
1. The Contractor shall provide the Department with quarterly cash
flow projection updates and provide written explanations
regarding any cash shortages in excess of ten percent (10%) as
compared to the quarterly cash flow projections.
2. The Contractor shall provide the Department with quarterly
reportings of its financial statements specifying its current
liabilities and current assets and the Contractor's calculated
current ratio.
3. The Contractor shall provide the Department with quarterly copies
of all of its Securities and Exchange Commission (hereinafter
"SEC") reports.
ARTICLE 12. ANNUAL AUDIT
The Contractor shall conduct an annual audit for the services provided under
this Agreement in accordance with Federal, State, City, and Department Laws,
regulations, and procedures. The Contractor shall provide the Department with
copies of the completed certified audits no later than thirty (30) days after
receipt of the final audit reports. If for any reason an annual audit will not
be conducted, the Contractor shall immediately notify the Department.
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ARTICLE 13. MONITORING AND EVALUATION
A. The Department shall monitor the Contractor's compliance with the
requirements of Title 18, NYCRR, Section 505.33 and Article 4, Section
A, paragraph 4 of this Agreement.
B. The Contractor shall be subject to all performance and quality control
monitoring standards as they now exist or as they may be modified.
C. The Department reserves the right to:
1. implement new or revised performance monitoring and evaluation
methods including, but not limited to, direct contact with
Recipients and/or their representative(s) by home visit,
telephone, or mail to assess the sufficiency, efficiency, and
adequacy of the services provided;
2. conduct both scheduled and unscheduled visits to the Contractor's
ERC to enable the Department to assess the Contractor's
performance under the term of this Agreement;
3. review, in accordance with the Department's Contract Management
System, all program activities, procedures, recipient data
records, record keeping techniques, and conduct other evaluation
activities as the Department deems necessary and appropriate; and
4. require the Contractor to install an ECD, at no cost to the
Department, at a location to be selected by the Department for
purposes of monitoring the Contractor's services.
D. The Department shall provide the Contractor with the results of any
monitoring visit and/or evaluation within thirty (30) days after the
completion of the monitoring visit/or evaluation.
E. The Contractor agrees that a program and facilities review, including
but not limited to, meeting Recipients, review of service records,
review of service policy and procedural issuances, review of staffing
ratios and job deseriptions, and meetings with staff directly or
indirectly involved in the provision of services, may be conducted at
any reasonable time by City, State, and Federal personnel, or other
person duly authorized by the Department.
ARTICLE 14. DELIVERABLES AND OWNERSHIP OF DELIVERABLES
All deliverables, including, but not limited to the reports required in this
Agreement shall be the sole property of the City of New York and the Department.
The Contractor shall not allow the same to be used except for the purposes of
this Agreement, without the express and prior written permission of the
Department.
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PART II GENERAL PROVISIONS
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ARTICLE 1. DEFINITIONS
As used throughout this Agreement, the following terms shall have the meaning
set forth below:
a. "City" shall mean the City of New York, its departments and
political subdivisions.
b. "Comptroller" shall mean the Comptroller of the City of New
York.
c. "Department" shall mean the Department of Social Services of
the Human Resources Administration including its constituent
agencies, departments, bureaus and their subdivisions.
d. "Administrator" or "Commissioner" or "Agency Head" shall
mean the Administrator of the Human Resources
Administration/Commissioner of the Department of Social
Services or her/his duly authorized representative. The term
"duly authorized representative" shall include any person or
persons acting within the limits of her/his authority.
e. "Law" or "Laws" shall include but not be limited to the New
York City Charter, the New York City Administrative Code, a
local law of the City of New York, and any ordinance, rule
or regulation having the force of law.
f. When referring to the Contractor, the pronoun "it", shall
also mean he or she, and the adjective "its" shall also mean
his or her, as the case may be.
g. "Agency Chief Contracting Officer" shall mean the position
delegated authority by the Agency Head to organize and
supervise the procurement activity of subordinate agency
staff in conjunction with the City Chief Procurement
Officer.
ARTICLE 2. INSURANCE
2.1 COMPREHENSIVE GENERAL LIABILITY INSURANCE.
The Contractor shall carry paid up comprehensive general liability
insurance in the sum of not less than One Million ($1,000,000) Dollars
per occurrence to protect the Department and the City of New York
against any and all claims, loss or damage, whether in contract or
tort, including claims for injuries to, or death of persons, or damage
to property, whether such injuries, death or damages be attributable to
the statutory or common law negligence or any other acts of the
Contractor, its employees, or otherwise. Such policy or policies of
insurance shall be obtained from a company, or companies, duly licensed
to do business in the State of New York, shall name the Department and
the City of New York as additional parties insured thereunder, shall
provide that in the event of cancellation thereof the Department shall
be notified at least
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fifteen (15) days in advance thereof, and shall provide that the
carrier shall appear, defend and indemnify the Department and City,
including the agents, servants and employees of the Department and
City, in connection with all such claims, loss or damage. Two (2)
executed copies of all insurance policies shall be delivered to the
Department for approval as to form prior to the effective date of this
Agreement.
2.2 WORKER'S COMPENSATION AND DISABILITY BENEFITS
The Contractor shall secure compensation for the benefit of its
employees in compliance with the provisions of Chapter 615 of the Laws
of 1922, known as the "Workers' Compensation Law" and acts amendatory
thereto, inclusive of Disability Benefits and keep them insured during
the life of this Agreement. In addition, pursuant to Section 57 of the
New York State Workers' Compensation Law, the Contractor shall submit
the required proof of workers' compensation and disability benefits
coverage to the Department or shall submit the required proof that
workers' compensation and/or disability insurance coverage are not
applicable, prior to the effective date of this Agreement.
2.3 UNEMPLOYMENT INSURANCE
Unemployment Insurance coverage shall be obtained and provided by the
Contractor for its employees.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES
3.1 PROCUREMENT OF AGREEMENT
A. The Contractor represents and warrants that no person or selling agency
has been employed or retained to solicit or secure this Agreement upon
an agreement or understanding for a commission, percentage, brokerage
fee, contingent fee or any other compensation. The Contractor further
represents and warrants that no payment, gift or thing of value has
been made, given or promised to obtain this or any other agreement
between the parties. The Contractor makes such representations and
warranties to induce the City to enter into this Agreement and the City
relies upon such representations and warranties in the execution
hereof.
B. For a breach or violation of such representations or warranties, the
Administrator shall have the right to annul this Agreement without
liability, entitling the City to recover all monies paid hereunder and
the Contractor shall not make claim for, or be entitled to recover, any
sum or sums due under this Agreement. This remedy, if effected, shall
not constitute the sole remedy afforded the City for the falsity or
breach, nor shall it constitute a waiver of the City's right to claim
damages or refuse payment or to take any other action provided for by
law or pursuant to this Agreement.
3.2 CONFLICT OF INTEREST
The Contractor represents and warrants that neither it nor any of its
directors, officers, members, partners or employees, has any interest
nor shall they acquire any interest,
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directly or indirectly, which would or may conflict in any manner or
degree with the performance or rendering of the services herein
provided. The Contractor further represents and warrants that in the
performance of this Agreement no person having such interest or
possible interest shall be employed by it. No elected official or other
officer or employee of the City or Department, nor any person whose
salary is payable, in whole or in part, from the City Treasury, shall
participate in any decision relating to this Agreement which affects
his personal interest or the interest of any corporation, partnership
or association in which he is, directly or indirectly, interested nor
shall any such person have any interest, direct or indirect, in this
Agreement or in the proceeds thereof.
3.3 FAIR PRACTICES
The Contractor and each Person signing on behalf of any Contractor
represents and warrants and certifies, under penalty of perjury, that
to the best of its knowledge and belief:
A. The prices in this Agreement 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;
B. Unless otherwise required by law, the prices which have been quoted in
this Agreement and on the proposal submitted by the Contractor have not
been knowingly disclosed by the Contractor prior to the proposal
opening, directly or indirectly, to any other bidder or to any
competitor; and
C. No attempt has been made or will be made by the Contractor to induce
any other person, partnership or corporation to submit or not to submit
a proposal for the purpose of restricting competition.
The fact that the Contractor (a) has published price lists, rates, or
tariffs covering items being procured, (b) has informed prospective
customers of proposed or pending publication of new or revised price
lists for such items, or (c) has sold the same items to other customers
at the same prices being bid, does not constitute, without more, a
disclosure within the meaning of the above. .
3.4 AFFIRMATION OF RESPONSIBILITY AND PAID TAXES
The Contractor affirms and declares that said Contractor is not in
arrears to the City of New York upon any debt, contract or taxes and is
not a defaulter, as a surety or otherwise, upon any obligation to the
City of New York, and has not been declared not responsible, or
disqualified, by any agency of the City of New York, nor is there any
proceeding pending relating to the responsibility or qualification of
the Contractor to receive public contracts except as otherwise stated
in the affirmation pertaining to the foregoing which has been furnished
to the Department.
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ARTICLE 4. AUDIT BY THE DEPARTMENT AND CITY
4.1 All vouchers or invoices presented for payment to be made hereunder,
and the books, records and accounts upon which said vouchers or
invoices are based are subject to audit by the Department and by the
Comptroller of the City of New York pursuant to the powers and
responsibilities as conferred upon said Department and said Comptroller
by the New York City Charter and the Administrative Code of the City of
New York, as well as all orders and regulations promulgated pursuant
thereto.
4.2 The Contractor shall submit any and all documentation and justification
in support of expenditures or fees under this Agreement as may be
required by said Department and said Comptroller so that they may
evaluate the reasonableness of the charges and shall make its records
available to the Department and to the Comptroller as they consider
necessary.
4.3 All books, vouchers, records, reports, cancelled checks and any and all
similar material related to this contract and the work thereunder may
he subject to periodic inspection, review and audit by that State of
New York, Federal Government and other persons duly authorized by the
City including the Department's Office of the Inspector General. Such
audit may include examination, review and copying of the source and
application of all funds whether from the City, any State, the Federal
Government, private sources or otherwise.
4.4 The Contractor shall not be entitled to final payment until all
requirements of this Agreement have been satisfactorily met.
4.5 The fiscal records of the Contractor under this Agreement shall be
examined by the Department at such times as the Department considers
necessary.
ARTICLE 5. COVENANTS OF THE CONTRACTOR
5.1 EMPLOYEES
All experts or consultants or employees of the Contractor who are
employed by the Contractor to perform work under this Agreement are
neither employees of the City nor under contract to the City and the
Contractor alone is responsible for their work, direction, compensation
and personal conduct while engaged under this Agreement. Nothing in
this Agreement shall impose any liability or duty on the City for the
acts, omissions, liabilities or obligations of the Contractor or any
person, firm, company, agency, association, corporation or organization
engaged by the Contractor as expert, consultant, independent
contractor, specialist, trainee, employee, servant, or agent, or for
taxes of any nature, including but not limited to unemployment
insurance, worker's compensation, disability benefits and social
security.
5.2 LIABILITY
A. The Contractor shall be solely responsible for all physical injuries or
death to its agents, servants, or employees or to any other person and
for all damage to any property
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sustained during its operations and work under its Agreement resulting
from any act of commission or omission or error in judgment of any of
its officers, trustee, employees, agents, servants, or independent
contractors, and shall hold harmless and indemnify the City from
liability upon any and all claims for damages on account of such
injuries or death to any such person or damages to property on account
of any neglect, fault or default of the Contractor, its officers,
trustees, employees, agents, servants, or independent contractors. The
Contractor shall be solely responsible for the safety and protection of
all of its employees whether due to the negligence, fault or default of
the Contractor or not.
B. In the event that any claim is made or any action is brought against
the City arising out of negligent or careless acts of an employee of
the Contractor, either within or outside the scope of his employment,
or arising out of Contractor's negligent performance of this Agreement,
then the City shall have the right to withhold further payments
hereunder for the purpose of set-off in sufficient sums to cover the
said claim or action. The rights and remedies of the City provided for
in this clause shall not be exclusive and are in addition to any other
rights and remedies provided by law or this Agreement.
5.3 MINIMUM WAGE
Except for those employees whose minimum wage is required to be fixed
pursuant to Section 220 of the Labor Law of the State of New York, all
persons employed by the Contractor in the performance of this Agreement
shall be paid, without subsequent deduction or rebate, unless expressly
authorized by law, not less than the minimum wage as prescribed by law.
Any breach or violation of the foregoing shall be deemed a breach or
violation of a material provision of this Agreement.
5.4 INDEPENDENT CONTRACTOR STATUS
The Contractor and the Department agree that the Contractor is an
independent contractor, and not an employee of the Department or the
City of New York, and that in accordance with such status as
independent contractor, the Contractor covenants and agrees that
neither it nor its employees or agents will hold themselves out as, nor
claim to be, officers or employees of the City of New York, or of any
department, agency or unit thereof, by reason hereof, and that they
will not, by reason hereof, make any claim, demand or application to or
for any right or privilege applicable to an officer or employee of the
City of New York, including, but not limited to, Worker's Compensation
coverage, Unemployment Insurance Benefits, Social Security coverage or
employee retirement membership or credit.
5.5 CONFIDENTIALITY
A. All information obtained, learned, developed or filed by the Contractor
in connection with public assistance recipients or their relatives or
in connection with other recipients of services, including data
contained in official Department files or records, shall be held
confidential by the Contractor pursuant to the provisions of the Social
Services Law of the State of New York, the Federal Social Security Act,
and any applicable regulations
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promulgated thereunder and shall not be disclosed by the Contractor to
any person, organization, agency or other entity except as authorized
or required by law.
B. All of the reports, information or data, furnished to or prepared,
assembled or used by the Contractor under this Agreement are to be held
confidential, and the Contractor agrees that the same shall not be made
available to any individual or organization without the prior written
approval of the Department.
C. The provisions of this Section shall remain in full force and effect
following termination of, or cessation of the services required by this
Agreement.
5.6 BOOKS AND RECORDS
The Contractor agrees to maintain separate and accurate books, records,
documents and other evidence of accounting procedures and practices
which sufficiently and properly reflect all direct and indirect costs
of any nature expended in the performance of this . Agreement. Such
records shall be subject to review, audit, inspection and copying by
City, State and Federal personnel, upon reasonable notice, subject to
the provisions of Article 5.19, below.
5.7 RETENTION OF RECORDS
The Contractor agrees to retain all books, records, and other documents
relevant to the Agreement for six years after the final payment or
termination of this Agreement, whichever is later. City, State and
Federal auditors and any other persons duly authorized by the
Department, including that Department's Inspector General shall have
full access to and the right to examine and copy any and all of said
materials during said period.
5.8 COMPLIANCE WITH LAW
The Contractor shall render all services under this Agreement in
accordance with the applicable provisions of Federal, State and local
laws, rules and regulations as are in effect at the time such services
are rendered.
5.9 FEDERAL EMPLOYMENT PRACTICES
The Contractor and its subcontractors shall comply with the Civil
Rights Act of 1964 and any amendment thereto, and the rules and
regulations promulgated thereunder.
5.10 NON-DISCRIMINATION AGAINST THE HANDlCAPPED
The Contractor agrees that it will comply with the provisions of
Section 504 of the Rehabilitation Act of 1973, as amended, and all
regulations, guidelines and interpretations issued pursuant thereto.
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5.11 INVESTIGATIONS
A. The parties to this Agreement agree to cooperate fully and faithfully
with any investigation, audit or inquiry conducted by a State of New
York (State) or City of New York (City) governmental agency or
authority that is empowered directly or by designation to compel the
attendance of witnesses and to examine witnesses under oath, or
conducted by the Inspector General of a governmental agency that is a
party in interest to the transaction, submitted bid, submitted
proposal, contract, lease, permit, or license that is the subject of
the investigation, audit or inquiry.
B. 1. If any person who has been advised that his or her statement, and
any information from such statement, will not be used against him or
her in any subsequent criminal proceeding refuses to testify before a
grand jury or other governmental agency or authority empowered directly
or by designation to compel the attendance of witnesses and to examine
witnesses under oath concerning the award of or performance under any
transaction, agreement, lease, permit, contract or license entered into
with the City the State, or any political subdivision or public
authority thereof, or the Port Authority of New York and New Jersey, or
any local development corporation within the City, or any public
benefit corporation organized under the laws of the State of New York,
or;
2. If any person refuses to testify for a reason other than the
assertion of his or her privilege against self incrimination in
an investigation, audit or inquiry conducted by a City or State
governmental agency or authority empowered directly or by
designation to compel the attendance of witnesses and to take
testimony under oath, or by the Inspector General of the
governmental agency that is a party in interest in, and is
seeking testimony concerning the award of, or performance under,
any transaction, agreement, lease, permit, contract, or license
entered into with the City, the State, or any political
subdivision thereof or any local development corporation within
the City, then;
C. 1. The commissioner or agency head whose agency is a party in interest
to the transaction, submitted bid, submitted proposal, contract, lease,
permit, or license shall convene a hearing, upon not less than five (5)
days written notice to the parties involved to determine if any
penalties should attach for the failure of a person to testify.
2. If any non-governmental party to the hearing requests an
adjournment, the commissioner or agency head who convened the
hearing may, upon granting the adjournment, suspend any contract,
lease, permit, or license pending the final determination
pursuant to paragraph E, below, without the City incurring any
penalty or damages for delay or otherwise.
D. The penalties which may attach after a final determination by the
commissioner or agency head may include but shall not exceed:
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1. The disqualification for a period not to exceed five (5) years
from the date of an adverse determination for any person, or any
entity of which such person was a member at the time the
testimony was sought, from submitting bids for, or transacting
business with, or entering into or obtaining any contract, lease,
permit or license with or from the City; and/or
2. The cancellation or termination of any and all such existing City
contracts, leases, permits or licenses that the refusal to
testify concerns and that have not been assigned as permitted
under this Agreement, nor the proceeds of which pledged, to an
unaffiliated and unrelated institutional lender for fair value
prior to the issuance of the notice scheduling the hearing,
without the City incurring any penalty or damages on account of
such cancellation or termination; monies due lawfully for goods
delivered, work done, rental s, or fees accrued prior to the
cancellation or termination shall be paid by the City.
E. The commissioner or agency head shall consider and address in reaching
his or her determination and in assessing an appropriate penalty, the
factors in paragraphs 1 and 2, below. He or she may also consider, if
relevant and appropriate, the criteria established in paragraphs 3 and
4, below, in addition to any other information which may be relevant
and appropriate;
1. The party's good faith endeavors or lack thereof to cooperate
fully and faithfully with any governmental investigation or
audit, including but not limited to the discipline, discharge, or
dissociation of any person failing to testify, the production of
accurate and complete books and records, and the forthcoming
testimony of all other members, agents, assignees or fiduciaries
whose testimony is sought.
2. The relationship of the person who refused to testify to any
entity that is a party to the hearing. including but not limited
to, whether the parson whose testimony is sought has an ownership
interest in the entity and/or the degree of authority and
responsibility the person has within the entity.
3. The nexus of the testimony sought to the subject entity and its
contracts, leases, permits or licenses with the City.
4. The effect a penalty may have on an unaffiliated and unrelated
party or entity that has a significant interest in an entity
subject to penalties under D, above, provided that the party or
entity has given actual notice to the commissioner or agency head
upon the acquisition of the interest, or at the hearing called
for in C(1), above, gives notice and proves that such Interest
was previously acquired. Under either circumstance, the party or
entity must present evidence at the hearing demonstrating the
potential adverse impact a penalty will have on such person or
entity.
F. 1. The term "license" or "permit" as used herein shall be defined as a
license, permit franchise or concession not granted as a matter of
right.
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2. The term "person" as used herein shall be defined as any natural
person doing business alone or associated with another person or
entity as a partner, director, officer, principal or employee.
3. The term "entity" as used herein shall be defined as any firm,
partnership, corporation, association, or person that receives
monies, benefits, licenses, leases, or permits from or through
the City or otherwise transacts business with the City.
4. The term "member" as used herein shall be defined as any person
associated with another person or entity as a partner, director,
officer, principal or employee.
G. In addition to and notwithstanding any other provision of this
Agreement, the Commissioner or agency head may in his or her sole
discretion terminate this Agreement upon not less than three (3) days
written notice in the event Contractor fails to promptly report in
writing to the Commissioner of Investigation of the City of New York
any solicitation of money, goods, requests future employment or other
benefit or thing of value, by or on behalf of any employee of the City
or other person, firm, corporation or entity for any purpose which may
be related to the procurement or obtaining of this Agreement by the
Contractor, or affecting the performance of this contract.
5.12 ASSIGNMENT
A. The Contractor shall not assign, transfer, convey, sublet or otherwise
dispose of this Agreement, or of the Contractor's right, title,
interest obligations or duties herein, or the Contractor is power to
execute such Agreement, or assign, by Power of attorney or otherwise,
any of its rights to receive monies due or to become due under this
Agreement, unless the prior written consent of the Administrator shall
be obtained. Any such assignment, transfer, conveyance, sublease or
other disposition without such consent shall be void.
B. In the event that the Contractor assigns, transfers, conveys, sublets
or otherwise disposes of this Agreement as specified in subdivision A,
above, without the prior written consent of the Department, the
Department shall revoke and annul this Agreement and the Department
shall be relieved and discharged from any and all liability and
obligations growing out of such Agreement to the Contractor, its
assignees, transferee or sublessee, and the Contractor shall lose all
monies theretofore earned under this Agreement, except so much thereof
as may be required to pay the Contractor's employees. The provisions of
this section shall not hinder, prevent or affect an assignment by the
Contractor for the benefit of its creditors made pursuant to the laws
of the State of New York.
C. 1. This Agreement may be assigned by the City to any corporation,
agency or instrumentality having authority to accept such assignment.
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5.13 SUBCONTRACTING
A. The Contractor agrees not to enter into any sub-contracts for the
performance of its obligations, in whole or in part, under this
Agreement without the prior written approval of the Department. Two
copies of each such proposed subcontract shall be submitted to the
Department with the Contractor's written request for approval.
B. All such sub-contracts shall contain provisions specifying:
1. that the work performed by the sub-contractor must be in
accordance with the terms of the Agreement between the Department
and the Contractor;
2. that nothing contained in such contract shall impair the rights
of the Department;
3. that nothing contained therein, or in the Agreement between the
Department and the Contractor, shall create any contractual
relationship between the subcontractor and the Department; and
4. that the sub-contractor specifically agrees to be bound by the
confidentiality provisions set forth in the Agreement between the
Department and the Contractor.
C. The Contractor agrees that it is fully responsible to the Department
for the acts and omissions of the sub contractors and of Persons either
directly or indirectly employed by them as it is for the acts and
omissions of persons directly employed by it.
D. The aforesaid approval is required in all cases other than individual
employer. employee contracts.
E. The Contractor shall not in any way be relieved of any responsibility
under this Agreement by any sub-contract.
5.14 PARTICIPATION IN AN INTERNATIONAL BOYCOTT
A. The Contractor agrees that neither the Contractor nor any
substantially-owned affiliated company is participating or shall
participate in an international boycott in violation of the provisions
of the Export Administration Act of 1979, as amended, of the
regulations of the United States Department of Commerce promulgated
thereunder.
B. Upon the final determination by the Commerce Department or any other
agency of the United States as to, or conviction of the Contractor or a
substantially-owned affiliated company thereof, of participation in an
international boycott in violation of the provisions of the Export
Administration Act of 1976, as amended, or the regulations promulgated
thereunder, the Comptroller may, at his option, render forfeit and void
this contract.
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C. The Contractor shall comply in all respects with the provisions of
Section 6-l14 of the Administrative Code of the City of New York and
the rules and regulations issued by the Comptroller thereunder.
5.15 ANTI-TRUST
The Contractor hereby assigns, sells, and transfers to the City all
right, title and interest in and to any claims and causes of action
arising under the anti-trust laws of the State of New York or of the
United States relating to the particular goods or services purchased or
procured by the City under this Agreement.
5.16 PUBLICITY
A. The prior written approval of the Department is required before the
Contractor or any of its employees, servants, agents, or independent
contractors may, at any time, either during or after completion or
termination of this Agreement, make any statement to the press or issue
any material for publication through any media of communication bearing
on the work performed or data collected under this Agreement.
B. If the Contractor publishes a work dealing with any aspect of
performance under this Agreement, or of the results and accomplishments
attached in such performance, the Department shall have a royalty free,
non-exclusive and irrevocable license to reproduce, publish or
otherwise use and to authorize others to use the publication.
5.17 INVENTIONS, PATENTS AND COPYRIGHTS
A. Any discovery or invention arising out of or developed in the course of
performance of this Agreement shall be promptly and fully reported to
the Department, and if this work is supported by a federal grant of
funds, it shall be promptly and fully reported to the Federal
Government for determination as to whether patent protection on such
invention shall be sought and how the rights in the invention or
discovery, including rights under any patent issued thereon, shall be
disposed of and administered in order to protect tie public interest.
B. No report, document or other data produced in whole or in part with
contract funds shall be copyrighted by the Contractor nor shall any
notice of copyright be registered by the Contractor in connection with
any report, document or other data developed for the Agreement.
C. If any copyrightable material is developed under, or in the course of
performing this Agreement, any Federal Agency providing federal
financial participation for the Agreement, the New York State
Department of Social Services and the City of New York shall have a
royalty-free, non-exclusive and irrevocable right to reproduce, publish
or otherwise use, and to authorize others to use, the work for
governmental purposes.
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D. In no event shall Subsections A, B and C of this Section be
deemed to apply to any report, document or other data, or any
invention of the Contractor which existed prior to, or was
developed or discovered independently from, its activities
related to or funded by this Agreement.
5.18 INFRINGEMENTS
The Contractor shall be liable to the Department and hereby agrees to
indemnify and hold the Department harmless for any damage or loss or
expense sustained by the Department from any infringement by the
Contractor of any copyright, trademark or patent rights of design,
systems, drawings, graphs, charts, specifications or printed matter
furnished or used by the Contractor in the performance of this
Agreement.
5.19 INSPECTOR GENERAL REVIEWS
Notwithstanding any provision herein regarding notice of inspections,
all records of the Contractor kept pursuant to this Agreement shall be
subject to immediate inspection, review and copying by the Department's
Office of the Inspector General without notice.
ARTICLE 6. TERMINATION
6.1 The Department and/or City shall have the right to terminate this
Agreement, in whole or in part:
A. Under any right to terminate as specified in any section of this
Agreement or for a material breach of this Agreement.
B. Upon the failure of the Contractor to comply with any of the terms and
conditions of this Agreement which is not cured within ten (10) days of
the Department's request therefor.
C. Upon the Contractor's becoming insolvent.
D. Upon the commencement under the Bankruptcy Act of any proceeding by or
against the Contractor, either voluntary or involuntary.
E. Upon receipt of notification that State or Federal reimbursement or
funding is no longer available for services provided pursuant to this
Agreement.
F. Without cause or if the Department deems that termination would be in
the best interest of the City.
6.2 The Department or City shall give the Contractor written notice of any
termination of this Agreement specifying therein the applicable
provisions of Section 6.1 of this Article and the effective date
thereof which shall not be less than ten (10) days from the date the
notice is received, except if termination is based on paragraph F of
Section 6.1 of this Article, in which event notice shall be not less
than thirty (30) days.
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6.3 The Contractor shall be entitled to apply to the Department to have
this Agreement terminated by said Department by reason of any failure
in the performance of this Agreement (including any failure by the
Contractor to make progress in the prosecution of work hereunder which
endangers such performance), if such failure arises out of causes
beyond the control and without the fault or negligence of the
Contractor. Such causes may include, but are not restricted to: acts of
God or of the public enemy; acts of the Government in either its
sovereign or contractual capacity; fires; flood, epidemics; quarantine
restrictions; strikes; freight embargoes, or any other cause beyond the
reasonable control of the Contractor. The determination that such
failure arises out of causes beyond the control and without the fault
or negligence of the Contractor shall be made by the Department which
agrees to exercise reasonable judgment therein. If such a determination
is made and the Agreement terminated by the Department pursuant to such
application by the Contractor, such termination shall be deemed to be
without cause.
6.4 Upon termination of this Agreement the Contractor shall comply with the
Department or City close-out procedures, including but not limited to:
A. Accounting for and refund to the Department or City, within thirty (30)
days, any unexpended funds which have been paid to the Contractor
pursuant to this Agreement.
B. Furnishing within thirty (30) days an inventory to the Department or
City of all equipment, appurtenances and property purchased through or
provided under this Agreement and carrying out any Department or City
directive concerning the disposition thereof.
C. Not incurring or paying any further obligation pursuant to this
Agreement beyond the termination date. Any obligation necessarily
incurred by the Contractor on account of this Agreement prior to
receipt of notice of termination and falling due after such date shall
be paid by the Department of the City in accordance with the terms of
this Agreement. In no event shall the word "obligation", as used
herein, be construed as including any lease agreement, oral or written,
entered into between the Contractor and its landlord.
D. Turn over to the Department or City or its designees all books,
records, documents and material specifically relating to this
Agreement.
E. Submit, within ninety (90) days, a final statement and report relating
to this Agreement. The report shall be made by a certified public
accountant or a licensed public accountant.
6.5 In the event the Department or City shall terminate this Agreement in
whole or in part as provided in paragraphs A, B, C, or D of Section 6.1
of this Article, the Department or City may procure, upon such terms
and in such manner as deemed appropriate, services similar to those so
terminated, and the Contractor shall continue the performance of this
Agreement to the extent not terminated thereby.
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6.6 Notwithstanding other provisions any of this Agreement, the Contractor
shall not be relieved of liability to the City for damages sustained by
the City by virtue of the Contractor's breach of the Contract, and the
City may withhold payments to the Contractor for the purpose of setoff
until such time as the exact amount of damages due to the City from the
Contractor is determined.
6.7 The provisions of the Agreement regarding confidentiality of
information shall remain in full force and effect following any
termination.
6.8 The rights and remedies of the City provided in this Article shall not
be exclusive and are in addition to all other rights and remedies
provided by law or under this Agreement.
ARTICLE 7. CONTRACTOR'S HIRING COMMITMENT
7.1 Except as otherwise provided by Paragraph 7.7 of this Article,
Contractor agrees as a condition of this contract, to hire at least one
Public Assistance Recipient ("PA Recipient") for each $250,000 in value
of this contract, or to the extent that the Contractor enters into
other contracts with the Department, for each $250,000 of the
cumulative value of contracts of the Contractor during the term of this
Agreement.
7.2 Such hiring shall be for full-time employment of at least a minimum of
35 hours per week. The rate of pay shall be at least 20% above the
federal minimum wage, and the duration of the employment shall be for
at least one year. In the event that a replacement of a PA Recipient is
made by the Contractor during the one year, such replacement shall not
count as an additional employee toward Contractor's hiring requirement
set forth in Paragraph 7.1 of this Article.
7.3 Within thirty days of the commencement date of this contract
("commencement date") or fifteen days following notice from the
Department that a request for an exemption from the provisions of this
Rider has been denied, Contractor shall submit, on forms specified by
the Department, information and specifications for the job(s)
available.
7.4 The Contractor, may at its option, request the assistance of the
Department in identifying potential employees. In such case, the
Department will refer PA Recipients to the Contractor for employment
interviews.
7.5 Contractor shall hire the number of employees agreed upon pursuant to
Paragraph 7.1 of this Article within ninety days of the commencement
date or such longer period as may be specified, in writing, by the
Department.
7.6 In the event Contractor fails to hire said agreed upon number of PA
Recipients within the time required pursuant to Paragraph 7.5 of this
Article, and to pay and retain such employees pursuant to Paragraph 7.2
of this Article Contractor shall pay to the Department or the
Department may at its option, deduct from monies due or become due to
Contractor, the amount of $19.18 per employee for each calendar day for
which such PA Recipient(s) is/are not employed by Contractor required
as by this Article. Such amount is hereby fixed and agreed as
liquidated damages.
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7.7 Contractor may apply to the Department for exemption from all or part
of the requirements of this Article. Any application for an exemption
must be made before the expiration of thirty days after the
commencement date of this contract, or any subsequent contract as
discussed in Paragraph 7.1 herein, and shall be in the form specified
by the Department. Exemption may be granted upon a showing that the
operation of this Article will constitute an extreme hardship, within
the sole discretion of the Department or to any Contractor not
employing twenty or more employees at a place of business within the
City of New York.
ARTICLE 8. MISCELLANEOUS
8.1 CHOICE OF LAW, CONSENT TO JURISDICTION AND VENUE
This Agreement shall be deemed to be executed in the City of New York,
regardless of the domicile of the Contractor, and shall be governed by
and construed in accordance with the laws of the State of New York.
The parties agree that any and all claims asserted by or against the
City arising under this Agreement or related thereto shall be heard and
determined either in the courts of the United States located in New
York City ("Federal Courts") or in the courts of the State of New York
("New York State Courts") located in the City and County of New York.
To effectuate this agreement and intent, the Contractor agrees:
A. If the City initiates any action against the Contractor in Federal
Court or in New York State Court, service of process may be made on the
Contractor either in person, wherever such Contractor may be found, or
by registered mail addressed to the Contractor at its address as set
forth in this Agreement, or to such other address as the Contractor may
provide to the City in writing.
B. With respect to any action between the City and the Contractor in New
York State Court, the Contractor hereby expressly waives and
relinquishes any rights it might otherwise have (i) to move to dismiss
on grounds of forum non conveniens, (ii) to remove to Federal Court and
(iii) to move for a change of venue to a Xxx Xxxx Xxxxx Xxxxx xxxxxxx
Xxx Xxxx Xxxxxx.
C. With respect to any action between the City and the Contractor in
Federal Court located in New York City, the Contractor expressly waives
and relinquishes any right it might otherwise have to move to transfer
the action to a United States Court outside the City of New York.
D. If the Contractor commences any action against the City in a court
located other than in the City and State of New York, upon request of
the City, the Contractor shall either consent to a transfer of the
action to a court of competent jurisdiction located in the City and
State of New York or, if the court where the action is initially
brought will not or cannot transfer the action, the Contractor shall
consent to dismiss such action without prejudice and may thereafter
reinstate the action in a court of competent jurisdiction in New York
City.
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If any provision(s) of this Article is held unenforceable for any
reason, each and all other provision(s) shall nevertheless remain in
full force and effect.
8.2 GENERAL RELEASE
The acceptance by the Contractor or its assignees of the final payment
under this Agreement, whether by voucher, judgment of any court of
competent jurisdiction or any other administrative means, shall
constitute and operate as a general release to the City from any and
all claims of and liability to the Contractor arising out of the
performance of this Agreement.
8.3 CLAIMS AND ACTIONS THEREON
A. No action at law or proceeding in equity against the City or Department
shall lie or be maintained upon any claim based upon this Agreement or
arising out of this Agreement or in any way connected with this
Agreement unless the Contractor shall have strictly complied with all
requirements relating to the giving of notice and of information with
respect to such claims, all as herein provided.
B. No action at law or proceeding in equity shall lie or be maintained
against the Department or the City upon any claim based upon this
Agreement or arising out of this Agreement unless such action shall be
commenced within six (6) months after the date of final payment
hereunder, or within six (6) months of termination or conclusion of
this Agreement, or within six (6) months of accrual of the cause of
action, whichever is earliest.
C. In the event any claim is made or any action brought in any way
relating to the agreement herein, the Contractor shall diligently
render to the Department and/or the City of New York without additional
compensation any and all assistance which the Department and/or the
City of New York may require of the Contractor.
D. The Contractor shall report to the Department in writing within three
(3) working days of the initiation by or against the Contractor of any
legal action or proceeding in connection with or relating to this
Agreement.
8.4 NO CLAIM AGAINST OFFICERS, AGENTS OR EMPLOYEES
No claim whatsoever shall be made by the Contractor against any
officer, agent or employee of the City for, or on account of, anything
done or omitted in connection with this Agreement.
8.5 WAIVER
Waiver by the Department of a breach of any provision of this Agreement
shall not be deemed to be a waiver of any other or subsequent breach
and shall not be construed to be a modification of the terms of the
Agreement unless and until the same shall be agreed to in writing by
the Department or City as required and attached to the original
Agreement.
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8.6 NOTICE
The Contractor and the Department hereby designate the business
addresses hereinabove specified as the places where all notices,
directions or communications from one such party to the other party
shall be delivered, or to which they shall be mailed. Actual delivery
of any such notice, direction or communication to a party the aforesaid
place, or delivery by certified, registered or overnight mail shall be
conclusive and deemed to be sufficient service thereof upon such party
as of the date such notice, direction or communication is received by
the party. Such address may be changed at any time by an instrument in
writing executed and acknowledged by the party making such change and
delivered to the other party in the manner as specified above. Nothing
in this section shall be deemed to serve as a waiver of any
requirements for the service of notice or process in the institution of
an action or proceeding as provided by law.
8.7 ALL LEGAL PROVISIONS DEEMED INCLUDED
It is the intent and understanding of the parties to this Agreement
that each and every provision of law required to be inserted in this
Agreement shall be and is inserted herein. Furthermore, it is hereby
stipulated that every such provision is to be deemed to be inserted
herein, and if, through mistake or otherwise, any such provision is not
inserted, or is not inserted in correct form, then this Agreement shall
forthwith upon the application of either party be amended by such
insertion so as to comply strictly with the law and without prejudice
to the rights of either party hereunder.
8.8 SEVERABILITY
If this Agreement contains any unlawful provision not an essential part
of the Agreement and which shall not appear to have been a controlling
or material inducement to the making thereof, the same shall be deemed
of no effect and shall, upon notice by either party, be deemed stricken
from the Agreement without affecting the binding force of the
remainder.
8.9 MODIFICATION
This Agreement may be modified by the parties in writing in a manner
not materially affecting the substance hereof. It may not be altered or
modified orally.
8.10 PARAGRAPH HEADINGS
Paragraph headings are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope or intent
of this Agreement and in no way affect this Agreement.
8.11 CONSULTANTS REPORTS
A copy of each consultant report submitted by a consultant to any City
official or to any officer, employee, agent or representative of a City
department, agency, commission or body or to any corporation,
association or entity whose expenses are paid in whole or in
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part from the City treasury shall be furnished to the Commissioner of
the department to which such report was submitted or, if not a City
department, then to the chief controlling officer or officers of such
other office or entity. A copy of such report shall also be furnished
to the Director of the Mayor's Office of Construction for matters
related to construction or to the Director of the Mayor's Office of
Operations for all other matters.
8.12 VENDEX QUESTIONNAIRES
This provision shall apply to contracts valued at $100,000 or more:
A. The Contractor states that the Principal, Individual, Business Entity
and Not-for-Profit Organization Questionnaires (VENDEX Questionnaires),
as the case may be, required by Procurement Policy Board Rule 2-08 and
any regulations promulgated thereunder, have been duly executed and
submitted to the Department.
The Contractor understands that the Department's reliance upon the
veracity of the information stated therein is a material condition to
the execution of this Agreement, and that such information is in no
respect misleading.
B. The Contractor shall submit the applicable VENDEX Questionnaires, or if
applicable, an Affidavit of No Change at least annually or upon the
renewal of this Agreement. Any contractor for which submission
requirements for Business Entities and Not-for-Profit Organizations
apply shall submit the applicable new fully completed VENDEX
Questionnaires to the Department every three years.
C. This Agreement shall be a nullity until the Contractor complies with
any and all the requirements set forth in Procurement Policy Board Rule
2-08 and any regulations promulgated thereunder, and the VENDEX
Questionnaires.
8.13 EXTENSION OF TIME- NON-CONSTRUCTION
Upon written application by the Contractor, the Agency Chief
Contracting Officer may grant an extension of time for performance of
the contract. Said application must state, at a minimum, in detail,
each cause for delay, the date the cause of the alleged delay occurred,
and the total number of delay in days attributable to such cause. The
ruling of the Agency Chief Contracting Officer shall be final and
binding as to the allowance of an extension and the number of days
allowed.
8.14 PRICING
A. The Contractor shall whenever required during the contract, including
but not limited to the time of bidding, submit cost or pricing data and
formally certify that, to the best of its knowledge and belief, the
cost or pricing data submitted was accurate, complete, and current as
of a specified date, The contractor shall be required to keep its
submission of cost and pricing data current until the contract has been
completed.
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B. The price of any change order or contract modification, subject to the
conditions of paragraph A, shall be adjusted to exclude any significant
sums by which the City finds that such price was based on cost or price
data furnished by the supplier which was inaccurate, incomplete, or not
current as of the date agreed upon between the parties.
C. Time for Certification. The Contractor must certify that the cost or
pricing data submitted are accurate, complete, and current as of a
mutually determined date.
D. Refusal to Submit Data. When any contractor refuses to submit the
required data to support a price, the Contracting Officer shall not
allow the price.
E. Certificate of Current Cost or Pricing Data. Form of Certificate. In
those cases when cost or pricing data are required, certificate shall
be made using a certificate substantially similar to the one contained
in Chapter 2 of the PPB rules and such certification shall be retained
in the agency contract file.
8.15 RESOLUTION OF DISPUTES
A. All disputes between the City and the supplier of the kind delineated
in this section that arise under, or by virtue of, this Contract shall
be finally resolved in accordance with the provisions of this section
and Section 4-09 of the Rules of the Procurement Policy Board ("PB
Rules"). The procedure for resolving all disputes of the kind
delineated herein shall exclusive means of resolving any such disputes.
(1) This section shall not apply to disputes concerning matters dealt
with in other sections of the PPB Rules or to disputes involving
patents, copyrights, trademarks, or trade secrets (as interpreted
by the courts of New York State) relating to proprietary rights
in computer software.
(2) For construction and construction-related services this section
shall apply only to disputes about the scope of work delineated
by the contract, the interpretation of contract documents, the
amount to be paid for extra work or disputed work performed in
connection with the contract, the conformity of the supplier's
work to the contract, and the acceptability and quality of the
supplier's work; such disputes arise when the Engineer makes a
determination with which the supplier disagrees.
B. All determinations required by this section shall be clearly stated,
with a reasoned explanation for the determination based on the
information and evidence presented to the party making the
determination. Failure to make such determination within the time
required by this section shall be deemed a non-determination without
prejudice that will allow application to the next level.
C. During such time as any dispute is being presented, heard, and
considered pursuant to this section, the contract terms shall remain in
full force and effect and the supplier shall continue to perform work
in accordance with the contract and as
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directed by the Agency Chief Contracting Officer ("ACCO") or Engineer.
Failure of the supplier to continue the work as directed shall
constitute a waiver by the supplier of any and all claims being
presented pursuant to this section and a material breach of contract.
D. Presentation of Dispute to Agency Head.
(1) Notice of Dispute and Agency Response. The supplier shall present
its dispute in writing ("Notice of Dispute") to the Agency Head
within the time specified herein, or, if no time is specified,
within thirty (30) days of receiving written notice of the
determination or action that is the subject of the dispute. This
notice requirement shall not be read to replace any other notice
requirements contained in the contract. The Notice of Dispute
shall include all the facts, evidence, documents, or other basis
upon which the supplier relies in support of its position, as
well as a detailed computation demonstrating how any amount of
money claimed by the supplier in the dispute was arrived at.
Within thirty (30) days after receipt of the complete Notice of
Dispute, the ACCO or, in the case of construction or
construction-related services, the Engineer, shall submit to the
Agency Head all materials he or she deems pertinent to the
dispute. Following initial submissions to the Agency Head, either
party may demand of the other the production of any document or
other material the demanding party believes may be relevant to
the dispute. The requested party shall produce all relevant
materials that are not otherwise protected by a legal privilege
recognized by the courts of New York State. Any question of
relevancy shall be determined by the Agency Head whose decision
shall be final. Willful failure of the supplier to produce any
requested material whose relevancy the supplier has not disputed,
or whose relevancy has been affirmatively determined, shall
constitute a waiver by the supplier of its claim.
(2) Agency Head Inquiry. The Agency Head shall examine the material
and may, in his or her discretion, convene an informal conference
with the supplier and the ACCO and, in the case of construction
or construction-related services, the Engineer, to resolve the
issue by mutual consent prior to reaching a determination. The
Agency Head may seek such technical or other expertise as he or
she shall deem appropriate, including the use of neutral
mediators, and require any such additional material either or
both parties as he or she deems fit. The Agency Head's ability to
render, and the effect of, a decision hereunder shall not be
impaired by any negotiations in connection with the dispute
presented, whether or not the Agency Head participated therein.
The Agency Head may or, at the request of any party to the
dispute, shall compel the participation of any other supplier
with a contract related to the work of this contract and that
supplier shall be bound by the decision of the Agency Head. Any
supplier thus brought into the dispute resolution proceeding
shall have the same
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rights and obligations under this section as the supplier
initiating the dispute.
(3) Agency Head Determination. Within thirty (30) days after the
receipt of all materials and information, or such longer time as
may be agreed to by the parties, the Agency Head shall make his
or her determination and shall deliver or send a copy of such
determination to the supplier and ACCO and, in the case of
construction or instruction-related services, the Engineer,
together with a statement concerning how the decision maybe
appealed.
(4) Finality of Agency Head Decision. The Agency Head's decision
shall be final and binding on all parties, unless presented to
the Contract Dispute Resolution Board (" CDRB") pursuant to this
section. The City may not take a petition to the CDRB. However,
should the supplier, take such a petition, the City may seek, and
the CDRB may render, a determination less favorable to the
supplier, and more favorable to the City than the decision of the
Agency Head.
E. Presentation of Dispute to the Comptroller. Before any dispute may be
brought by the supplier to the CDRB, the supplier must first: present
its claim to the Comptroller for his or her review, investigation, and
possible adjustment.
(1) Time, Form, and Content of Notice. Within thirty (30) days of
receipt of a decision by the Agency Head, the supplier shall
submit to the Comptroller and to the Agency Head a Notice of
Claim regarding its dispute with the agency. The Notice of Claim
shall consist of (i) a brief statement of the substance of the
dispute, the amount of money, if any, claimed and the reason(s)
the supplier contends the dispute was wrongly decided by the
Agency Head; (ii) a copy of the decision of the Agency Head, and
(iii) a copy of all materials submitted by the supplier to the
agency, including the Notice of Dispute. The supplier may not
present to the Comptroller any material not presented to the
Agency Head, except at the request of the Comptroller.
(2) Agency Response. Within thirty (30) days of receipt of the Notice
of Claim, the agency shall make available to the Comptroller a
copy of all material submitted by the agency to the Agency Head
in connection with the dispute. The agency may not present to the
Comptroller any material not presented to the Agency Head, except
at the request of the Comptroller.
(3) Comptroller Investigation. The Comptroller may investigate the
claim in dispute and, in the course of such investigation, may
exercise all powers provided in sections 7-201 and 7-203 of the
New York City Administrative Code. In addition, the Comptroller
may demand of either
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party, and such party shall provide, whatever additional material
the Comptroller deems pertinent to the claim, including original
business "records of the supplier." Willful failure of the
supplier to Produce within fifteen (15) days any material
requested by the Comptroller shall constitute a waiver by the
supplier of its claim. The Comptroller may also schedule an
informal conference to be attended by the supplier, agency
representatives, and any other personnel desired by the
Comptroller.
(4) Opportunity of Comptroller to Compromise or Adjust Claim. The
Comptroller shall have forty-five (45) days from his or her
receipt of all materials referred to in 5(c) to investigate the
disputed claim. The Period for investigation and compromise may
be further extended by agreement between the supplier and the
Comptroller, to a maximum of ninety (90) days from the
Comptroller's receipt of all the materials. The supplier may not
present its petition to the CDRB until the period for
investigation and compromise delineated in this paragraph has
expired. In compromising or adjusting any claim hereunder, the
Comptroller may not revise or disregard the terms of the contract
between the parties.
F. Contract Dispute Resolution Board. There shall be a Contract Dispute
Resolution Board composed of:
(1) the chief administrative law judge of the Office of
Administrative Trials and Hearings ("OATH") or his/her designated
OATH administrative law judge, who shall act as chairperson, and
may adopt operational procedures and issue such orders consistent
with this section as may be necessary in the execution of the
CDRB's functions, including, but not limited to, granting
extensions of time to present or respond to submissions;
(2) the City Chief Procurement Officer ("CCPO") or his/her designee,
or in the case of disputes involving construction, the Director
of the Office of Construction or his/her designee; any designee
shall have the requisite background to consider and resolve the
merits of the dispute and shall not have participated personally
and substantially in the particular matter that is the subject of
the dispute or report to anyone who so participated, and
(3) person with appropriate expertise who is not an employee of the
City. This person shall be selected by the presiding
administrative law judge from a prequalified panel of
individuals, established and administered by OATH, with
appropriate background to act as decision-makers in a dispute.
Such individuals may not have a contract or dispute with the City
or be an officer or employee of any company or organization that
does, or regularly represent Persons, companies, or organizations
having disputes with the City,
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G. Petition to CDRB. In the event the claim has not been settled or
adjusted by the Comptroller within the Period provided in this section,
the supplier, within thirty (30) days thereafter, may petition the CDRB
to review the Agency Head determination.
(1) Form and Content of Petition by Supplier. The supplier shall
present its dispute to the CDRB in the form of a Petition, which
shall include (i) a brief statement of the substance of the
dispute, the amount of money, if any, claimed, and the reason(s)
the supplier contends that the dispute was wrongly decided by the
Agency Head; (ii) a copy of the decision of the Agency Head;
(iii) copies of all materials submitted by the supplier to the
agency; (iv) a copy of the decision of the Comptroller, if any,
and (v) copies of all correspondence with, and material submitted
by the supplier to, the Comptroller's Office. The supplier shall
concurrently submit four complete sets of the Petition: one to
the Corporation Counsel (Attn: Commercial and Real Estate
Litigation Division), and three to the CDRB at OATH's offices,
with proof of service on the Corporation Counsel. In addition,
the supplier shall submit a copy of the statement of the
substance of the dispute, cited in (i) above, to both the Agency
Head and the Comptroller.
(2) Agency Response. Within thirty (30) days of receipt of the
Petition by the Corporation Counsel, the agency shall respond to
the statement of the supplier and make available to the CDRB all
material it submitted to the Agency Head and Comptroller. Three
complete copies of the agency response shall be submitted to the
CDRB at OATH's offices and one to the supplier. Extensions of
time for submittal of the agency response shall be given as
necessary upon a showing of good cause or, upon the consent of
the parties, for an initial period of up to thirty (30) days.
(3) Further Proceedings. The Board shall permit the supplier to
present its case by submission of memoranda, briefs, and oral
argument. The Board shall also permit the agency to present its
case in response to the supplier by submission of memoranda,
briefs and oral arguments. If requested by the Corporation
Counsel, the Comptroller shall provide reasonable assistance in
the preparation of the agency's case. Neither the supplier nor
the agency may support its case with any documentation or other
material that was not considered by the Comptroller, unless
requested by the CDRB. The CDRB, in its discretion, may seek such
technical or other expert advice as it shall deem appropriate and
may seek, on its own or upon application of a party, any such
additional material from any party as it deems fit. The CDRB, in
its discretion, may combine more than one dispute between the
parties for concurrent resolution.
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(4) CDRB Determination. Within forty-five (45) days of the conclusion
of all submissions and oral arguments, the CDRB shall render a
decision resolving the dispute. In an unusually complex case, the
CDRB may render its decision in a longer period of time, not to
exceed ninety (90) days, and shall so advise the parties at the
commencement of this period. The CDRB's decision must be
consistent with the terms of the contract. Decisions of the CDRB
shall only resolve matters before the CDRB and shall not have
precedential effect with respect to matters not before the CDRB.
(5) Notification of CDRB Decision. The CDRB shall send a copy of its
decision to the supplier, the ACCO, the Corporation Counsel, the
Comptroller, the CCPO, the Office of Construction, the PPB, and,
in the case of construction or construction-related services, the
Engineer. A decision in favor of the supplier shall be subject to
the prompt payment provisions of the PPB Rules. The Required
Payment Date shall be thirty (30) days after the date the parties
are formally notified of the CDRB's decision.
(6) Finality of CDRB Decision. The CDRB's, decision shall be final
and binding on all parties. Any party may seek review of the
CDRB's decision solely in the form of a challenge, filed within
four months of the date of the CDRB's decision, in a court of
competent jurisdiction of the State of New York, County of New
York pursuant to Article 78 of the Civil Practice Law and Rules.
Such review by the court shall be limited to the question of
whether or not the CDRB's decision was made in violation of
lawful procedure, was affected by an error of law, or was
arbitrary and capricious or an abuse of discretion. No evidence
or information shall be introduced or relied upon in such
proceeding that was not presented to the CDRB in accordance with
Section 4-09 of the PPB Rules.
H. Any termination, cancellation, or alleged breach of the contract prior
to or during the pendency of any proceedings pursuant to this section
shall not affect or impair the ability of the Agency Head or CDRB to
make a biding and final decision pursuant to this section.
8.16 CONTRACT CHANGES
A. Changes may be made to this contract only as duly authorized by the
Agency Chief Contracting Officer or his or her designee. Vendors
deviating from the requirements of an original purchase order or
contract without a duly approved change order document, or written
contract modification or amendment, do so at their own risk. All such
changes, modifications and amendments will become a part of the
original contract.
B. Contract changes will be made only for work necessary to complete the
work included in the original scope of the contract, and for
non-material changes to the scope of the contract Changes are not
permitted for any material alteration in the
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scope of work. Contract changes may include any contract revision
deemed necessary by the Contracting Officer.
C. The Contractor may be entitled to a price adjustment for extra work
performed or to be performed pursuant to a written change order. If any
part of the contract work is. necessarily delayed by a change order,
the contractor may be entitled to an extension of time for performance.
Adjustments to price shall be validated for reasonableness by using
appropriate price and cost analysis.
D. Except in the case of requirements contracts, any contract increases
which cumulatively exceed the greater of 10% of the contract amount or
$100,000 must be approved in writing by the City Chief Procurement
Officer. Any contract amendment that either amends a unit price,
cancels required units, or adds a new type of unit item to the contract
must be approved in writing by the Agency Chief Contracting Officer.
8.17 NO DAMAGE FOR DELAY
The Contractor agrees to make no claim for damages for delay in the
performance of this Contract occasioned by any act or omission to act
of the City or any of its representatives, and agrees that any such
claim shall be fully compensated for by an extension of time to
complete performance of the work as provided herein.
8.18 PROMPT PAYMENT
A. The Prompt Payment provisions set forth in Chapter 4, Section 4-06 of
the Procurement Policy Board Rules in effect at the time of this
solicitation will be applicable to payments made under this contract.
The provisions require the payment to contractors of interest on
payments made after the required payment date except as set forth in
subdivisions c(3) and (2), (3), (4) and (5) of Section 4-06 of the
Rules.
B. The contractor must submit a proper invoice to receive payment, except
where the contract provides that the contractor will be paid at
predetermined intervals without having to submit an invoice for each
scheduled payment.
C. Determinations of interest due will be made in accordance with the
provisions of Section 4-06 of the Procurement Policy Board Rules and
General Municipal Law Section 3-a.
8.19 POLITICAL ACTIVITY
There shall be no partisan political activity or any activity to
further the election or defeat of any candidate for public, political
or party office as part of or in connection with this Agreement, nor
shall any of the funds provided under this Agreement be used for such
purposes.
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8.20 RELIGION .
There shall be no religious worship, instruction or proselytization as
part of or in connection with the performance of this agreement, except
that recipients of the services may be allowed access to religious
instructions or worship of their own persuasion.
8.21 REDUCTION OF FEDERAL STATE OR CITY FUNDING
A. The Contractor, acknowledging that this Agreement is funded in whole or
in part by funds secured from the Federal, New York State or City
Government, agrees that should there be a reduction or discontinuance
of such funds by action of the Federal, New York State or City
Government, the City of New York and the Department shall have, in
their sole discretion, the right to terminate this Agreement in whole
or in part, or to reduce the funding and level of services of this
Agreement caused by such action by the Federal, State or City
Governments, including, in the case of the reduction option, but not
limited to, the reduction or elimination of programs, services or
service components; the reduction or elimination of
contract-reimbursable staff or staff-hours, and the corresponding
reductions in the Agreement budget and in the total amount payable
under the Agreement.
B. In the case of the termination option referred to in paragraph A,
above, any such termination shall take effect immediately upon written
notice thereof to the Contractor. In the case of the reduction option
referred to in paragraph A, above, any such reduction shall be
effective as of the date set forth in a written notice thereof to the
Contractor, which shall be not less than thirty (30) calendar days from
the date of such notice. Prior to sending such notice of reduction, the
Department shall advise the Contractor that such option is being
exercised and affording the Contractor an opportunity to make within
seven (7) calendar days any suggestion(s) it may have as to which
program(s), service(s), service component(s), staff or staff-hours
might be reduced or eliminated, provided, however, that the Contractor
expressly understands and agrees that the Department shall not be bound
to utilize any of the Contractor's suggestions and that the Department
shall have sole and exclusive discretion to decide how to effectuate
the reductions.
C. The tension and reduction options of the Department and City set forth
in paragraphs A and B, above, are independent and separate rights in
addition to any other rights of termination or modification provided by
this Agreement, by law or by relevant regulation, and supersede any and
all rights or actions the Contractor may have under any provision of
this Agreement to the Contrary.
ARTICLE 9. EQUAL EMPLOYMENT
9.1 Mayor's Executive Order No. 50
A. This Agreement is subject to the requirements of Executive Order No. 50
(1980) as revised ("E.0.50") and the Rules and Regulations promulgated
thereunder. No
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Contract will be awarded unless and until these requirements have been
complied with in their entirety. By signing this Contract, the
Contractor agrees that it:
(1) will not engage in any unlawful discrimination against any
employee or applicant for employment because of race, creed,
color, national origin, sex, age, disability, marital status, or
sexual orientation with respect to all employment decisions
including, but not limited to recruitment, hiring, upgrading,
demotion, downgrading, transfer, training, rates of pay or other
forms of compensation, layoff, termination, and all other terms
and conditions of employment;
(2) the Contractor agrees that when it subcontracts it will not
engage in any unlawful discrimination in the selection of
subcontractors on the basis of the owner's race, color, creed,
national origin, sex, age, disability, marital status or sexual
orientation or that it is an equal opportunity employer,
(3) will state in all solicitations or advertisements for employees
placed by or on behalf of the Contractor that all qualified
applicants will receive consideration for employment without
regard to race, creed, color, national origin, sex, age,
disability, marital status or sexual orientation; or that it is
an equal employment opportunity employer;
(4) will send to each labor organization or representative of workers
with which it has a collective bargaining agreement or other
contract or memorandum of understanding, written notification of
its equal employment opportunity commitments under E.O. 50 and
the rules and regulations promulgated thereunder; and
(5) will furnish all information and reports including an Employment
Report before the award of the Contract which are required by
E.O. 50, the rules and regulations promulgated thereunder, and
orders of the Director of the Division of Labor Services ("
DLS"), and will permit access to its books, records and accounts
by the DLS for the purposes of investigation to ascertain
compliance with such rules, regulations, and orders. Nothing
contained in this section shall be construed to bar any religious
or denominational institution or organization, or any
organization operated for charitable or educational purposes,
which is operated, supervised or controlled by or in connection
with a religious organization, from limiting employment or giving
preference to persons of the same religion or denomination or
from making such selection as is calculated by such organization
to promote the religious principles for which it is established
or maintained.
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B. The Contractor understands that in the event of its noncompliance with
the nondiscrimination clauses of this Agreement or with any of such
rules, regulations or orders, such noncompliance shall constitute a
material breach of this Agreement and noncompliance with E.O. 50 and
the rules and regulations promulgated thereunder. After a hearing held
pursuant to the rules of the DLS, the Director may direct the
imposition by the contracting agency head of any or all of the
following sanctions:
(1) disapproval of the Contractor;
(2) suspension or termination of the Agreement;
(3) declaring the Contractor in default; or
(4) in lieu of any of the foregoing sanctions, the Director may
impose an employment program,
C. The Director of the Bureau may recommend to the contracting agency head
that a Board of Responsibility be convened for purposes of declaring a
contractor who has repeatedly failed to comply with E.O. 50 and the
rules and regulations promulgated thereunder to be nonresponsible.
D. The Contractor agrees to include the provisions of the foregoing
paragraphs in every subcontract or purchase order in excess of $50,000
to which it becomes a party, unless exempted by E.O. 50 and the rules
and regulations promulgated thereunder, so that such provisions will be
binding upon each subcontractor or vendor. The Contractor will take
such action with respect to any subcontract or purchase order as may be
directed by the Director of the Bureau of Labor Services as a means of
enforcing such provisions including sanctions for noncompliance.
E. The Contractor further agrees that it will refrain from entering into
any contract or contract modification subject to E.O.50 and the rules
and regulations promulgated thereunder with a subcontractor who is not
in compliance with the requirements of E.O. 50 and the rules and
regulations promulgated thereunder.
9.2 Where required by New York State Labor Law Section 220-e the Contractor
agrees:
A. That in the hiring of employees for the performance of work under this
Agreement or any subcontract hereunder, neither the Contractor,
subcontractor, nor any person acting on behalf of such Contractor or
subcontractor shall by reason of race, creed, color, sex or national
origin discriminate against any citizen of the State of New York who is
qualified and available to perform the work to which the employment
relates;
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B. That neither the Contractor, subcontractor, nor any person on behalf
thereof shall, in any manner, discriminate against or intimidate any
employee hired for the performance of work under this Agreement on
account of race, creed, color, sex or national origin;
C. That there may be deducted from the amount payable to the Contractor by
the City under this Agreement a penalty of five dollars for each person
for each calendar day during which such person was discriminated
against or intimidated in violation of the provisions of this
Agreement; and
D. That this Agreement may be cancelled or terminated by the City and all
monies due or to become due hereunder may be forfeited, for a second or
any subsequent violation of the terms or conditions of this section of
the Agreement.
E. The aforesaid provisions of this section covering every contract for or
on behalf of the State or a municipality for the manufacture, sale or
distribution of materials, equipment or supplies shall be limited to
operations performed within the territorial limits of the State of New
York.
9.3 Where required by New York City Administrative Code Section 6-108 the
Contractor agrees that:
A. It shall be unlawful for any person engaged in the construction,
alteration or repair of buildings or engaged in the construction or
repair of streets or highways pursuant to a contract with the City or
engaged in the manufacture, sale or distribution of materials,
equipment or supplies pursuant to a contract with the City to refuse to
employ or to refuse to continue in any employment any person on account
of the race, color or creed of such person.
B. It shall be unlawful for any person or any servant, agent, or employee
of any person, described in subdivision (A) above, to ask, indicate or
transmit orally or in writing, directly or indirectly, the race, color,
or creed or religious affiliation of any person employed or seeking
employment from such person, firm or corporation.
C. Disobedience of the foregoing provisions shall be deemed a violation of
a material provision of this Agreement.
D. Any person, or the employee, manager or owner of or officer of such
firm or corporation who shall violate any of the provisions of this
section shall, upon conviction thereof, be punished by a fine or not
more than one hundred dollars or by imprisonment for not more than
thirty days, or both.
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ARTICLE 10. APPROVALS
10.1 PROCUREMENT POLICY BOARD RULES
This contract is subject to the Rules of the Procurement Policy Board
of the City of New York dated August 1, 1990, as amended. In the event of a
conflict between said Rules and a provision of this contract, the Rules shall
take precedence.
10.2 THE CITY OF NEW YORK
This Agreement shall not become effective or binding unless:
A. authorized by the Mayor; approved pursuant to New York City Charter and
Procurement Policy Board Rules for contracts not subject to public
letting; and the Comptroller shall have endorsed his certificate that
there remains unexpended and unapplied a balance of the appropriation
of funds applicable hereto sufficient to pay the estimated expense of
executing this Agreement;
B. approved by the Mayor pursuant to the provisions of Executive Order No.
42, dated October 9, 1975 in the event that Executive Order requires
such approval; and
C. certified by the Mayor (Mayor's Fiscal Committee created pursuant to
Executive Order No. 43, dated October 14, 1975) that performance
thereof will be in accordance with the City's financial plan.
D. approved by the New York State Financial Control Board (Board) pursuant
to the New York State Financial Emergency Act for the City of New York,
as amended, (the "Act), in the event regulations of the Board pursuant
to the Act require such approval.
E. it has been authorized by the Mayor and the Comptroller shall have
endorsed his or her certificate that there remains unexpended and
unapplied a balance of the appropriation of funds applicable thereto
sufficient to pay the estimated expense of carrying out this Agreement.
The requirements of this section of the contract shall be in addition
to, and not in lieu of, any approval or authorization otherwise
required for this contract to be effective and for the expenditure of
City funds.
10.3 OTHER APPROVALS OR AUTHORIZATIONS
The requirement of this Articles shall in addition to, and not in lieu
of, any approval or authorization otherwise required for this Agreement
to be effective and for the expenditure of City funds.
ARTICLE 11. XXXXXXXX PRINCIPLES
11.1 NOTICE TO ALL PROSPECTIVE CONTRACTORS
Local Law No. 34 of 1991 became effective on September 10, 1991 and
added section 6-115.1 to the Administrative Code of the City of New
York. The Local law provides for
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certain restrictions on City contracts to express the opposition of the
people of the City of New York to employment discrimination practices
in Northern Ireland and to encourage companies doing business in
Northern Ireland to promote freedom of opportunity in the work place.
Pursuant to Section 6-115.1, prospective contractors for contracts to
provide goods or services involving an expenditure of an amount greater
than ten thousand dollars, or for construction involving an amount
greater than fifteen thousand dollars, are asked to sign a rider in
which they covenant and represent a material condition of their
contract, that any business operations in Northern Ireland conducted by
the Contractor and individual or legal entity in which the Contractor
holds ten percent or greater ownership interest and any individual or
legal entity that holds ten percent or greater ownership interest in
the contract will he conducted in accordance with the XxxXxxxx
Principles of nondiscrimination in employment. Prospective Contractors
are not required to agree to these conditions. However, in the case of
contracts let by competitive sealed bidding, whenever the lowest
responsible bidder has not agreed to stipulate to the conditions set
forth in this notice and another bidder who bas agreed to stipulate to
such conditions has submitted a bid within five percent of the lowest
responsible bid for a contract to supply goods, services or
construction of comparable quality, the contracting entity shall refer
such bids to the Mayor, the Speaker or other officials, as appropriate,
who may determine, in accordance with applicable laws and rules, that
it is in the best interest of the City to award the contract to other
than the lowest responsible bidder, pursuant to Section 313(b)(2) of
the City Charter.
In the case of contracts let by other than competitive sealed bidding,
if a prospective contractor does not agree to these conditions, no
agency, elected official or the Council, shall award the contract to
the bidder, unless the entity seeking to use the goods, services or
construction, certifies in writing that the contract is necessary for
the entity to perform its functions and there is no other responsible
contractor who will supply goods, services or construction of
comparable quality at a comparable price,
PART A
In accordance with section 6-115.1 of the Administration Code of the
City of New York, the Contractor stipulates that such Contractor and
any individual or legal entity in which the Contractor holds a ten
percent or greater ownership interest and any individual or legal
entity that holds a ten percent or greater ownership in the Contractor
either (a) have no business operations in Northern Ireland, or (b)
shall take lawful steps in good faith, to conduct any business
operations that they may have in Northern Ireland, in accordance with
the XxxXxxxx Principles, and shall permit independent monitoring of
their compliance with such principles.
PART B
For purposes of this section, the following terms shall have the
following meanings:
1. "XxxXxxxx Principles" shall mean those principles relating to
nondiscrimination in employment and freedom of opportunity in the
work place which require employers doing business in Northern
Ireland to:
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(1) increase the representation of individuals from underrepresented
religious groups in the work force, including managerial,
supervisory, administrative, clerical and technical jobs;
(2) take steps to promote adequate security for the protection of
employees from underrepresented religious groups both at the work
place and while traveling to and from work;
(3) ban provocative religious or political emblems from the work
place;
(4) publicly advertise all job openings and make special recruitment
efforts to attract applicants from underrepresented religious
groups;
(5) establish layoff, recall and termination particular religious
group;
(6) abolish all job reservations, apprenticeship restrictions and
different employment criteria which discriminate on the basis of
religion;
(7) develop training programs that will prepare substantial numbers
of current employees from underrepresented religious groups for
skilled jobs, including the expansion of existing programs and
the creation of new programs to train, upgrade and improve the
skills of workers from underrepresented religious groups;
(8) establish procedures to assess, identify and actively recruit
employees from underrepresented religious groups with potential
for farther advancements; and
(9) appoint a senior management staff member to oversee affirmative
action efforts and develop a timetable to ensure their full
implementation.
11.2 ENFORCEMENT OF ARTICLE 11.1
The Contractor agrees that the covenants and representations in Article
11.1 above are material conditions to this contract. In the event the
contracting entity receives information that the Contractor, who signed
the stipulation required by this section, is in violation thereof, the
contracting entity shall review such information and give the
Contractor an opportunity to respond. If the contracting entity finds
that a violation has occurred, the entity shall have the right to
declare the Contractor in default and/or terminate this contract for
cause and procure the supplies, services or work from another source in
any manner the entity deems proper. In the event of such termination,
the Contractor shall pay to the entity, or the entity in its sole
discretion may withhold from any amounts otherwise payable to the
Contractor, the difference between the contract price for the
uncompleted portion of this contract and the cost to the contracting
entity of completing performance of this contract. In the case of a
requirements contract, the
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Contractor shall be liable for such difference in price for the entire
amount of supplies required by the contracting entity for the
uncompleted term of its contract.
In the case of a construction contract, the contracting entity shall
also have the right to hold the Contractor in partial or total default
in accordance with the default provisions of this contract, and/or may
seek debarment or suspension of the Contractor. The rights and remedies
of the entity hereunder shall be in addition to, and not in lieu of,
any rights and remedies the entity has pursuant to this contract or by
operation of law.
ARTICLE 12. CONTRACTOR'S COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT
12.1 This Agreement is subject to the provisions of Subtitle A of Title II
of the Americans with Disabilities Act of 1990, 42 U.S.C. 12132 ("ADA")
and regulations promulgated pursuant thereto, see 28 CFR Part 35.
Contractor shall not discriminate against an individual with a
disability, as defined in the ADA, in providing services, programs or
activities pursuant to this Agreement. To ensure Contractor's
compliance with the ADA during the term of this Agreement, the
Contractor shall prepare a plan ("Compliance Plan") which lists its
program site(s) and describes in detail, bow it intends to make the
services, programs or activities set forth in the scope of services
herein, readily accessible and usable by individuals with disabilities
at such site(s) listed. In the event the program site is not readily
accessible and usable by individuals with disabilities, Contractor
shall also include in the Compliance Plan, a description of reasonable
alternative means and methods that result in making the services,
programs or activities set forth herein readily accessible to and
usable by individuals with disabilities, including but not limited to
people with visual, audial, or mobility disabilities. Contractor shall
submit the Compliance Plan to the ACCO of the Agency for review within
10 days after execution of this Agreement. Upon approval by the Agency
of the Compliance Plan, Contractor shall abide by the Compliance Plan
and implement any action detailed in the Compliance Plan to make the
services, programs or activities accessible and usable by the disabled.
Implementation of the Compliance Plan shall be in accordance with the
schedule for Compliance agreed upon by the Agency and the Contractor.
12.2 Contractor's failure to either submit a Compliance Plan as required
herein or implement an approved Compliance Plan may be deemed a
material breach of this Agreement and result in the City terminating
this Agreement.
ARTICLE 13. YEAR 2000 COMPLIANCE
A. All computer technology provided by Contractor containing or calling on
a calendar function including, without limitation, any function indexed
to a CPU clock, and any function providing specific dates or days, or
calculating spans of dates or days, shall record, store, process,
provide and, where appropriate, insert, true and accurate dates and
calculations for dates and spans including and following January 1,
2000. As part of its obligations, Contractor shall consult with
Department to assure that such technology will (i) have no lesser
functionality with respect to records containing dates both, or either,
before or after January 1, 2000 than heretofore with respect to dates
prior to January 1,
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2000 and (ii) be interoperable with other technology used by Department
which may deliver records, receive records from or otherwise interact
with such technology in the course of the Department's data processing.
B. All technology heretofore provided or specified to Department by
Contractor whether hereunder or user separate agreement, if not
currently capable of using or rendering date or time sensitive data or
supporting interoperability in the manner described in subsection (a)
above, but still under maintenance, shall be modified or replaced by
Contractor with technology which provided all existing functionality
and is so capable, by a date no later than thirty (30) days after the
date of award without incremental charge therefor.
ARTICLE 14. ENTIRE AGREEMENT
This written Agreement contains all the terms and conditions agreed
upon by the parties hereto, and no other agreement, oral or otherwise,
regarding the subject matter of this Agreement shall be deemed to exist
or to bind any of the parties hereto, or to vary any of the terms
contained herein.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement on the date
first above written.
CITY OF NEW YORK
DEPARTMENT OF SOCIAL SERVICES
HUMAN RESOURCES ADMINISTRATION COMMISSIONER
By /S/ XXXXX XXXXXXXXX
-----------------------------------------------
Corporate Contractor
Affix Corporate Seal:
[Corporate Seal] AMERICAN MEDICAL ALERT CORP.
--------------------------------------------------
CONTRACTOR
By /S/ XXX XXXXXX
-----------------------------------------------
Title VP - PROVIDER RELATIONS
---------------------------------------------
00-0000000
--------------------------------------------------
Fed. Employer I.D. No. or Soc. Sec. No.
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STATE OF NEW YORK )
:ss:
COUNTY OF NEW YORK )
On this 22nd day of February 2002, before me personally came Xxxxx Xxxxxxxxx, to
me known and known to me to be Commissioner of the HUMAN RESOURCES
ADMINISTRATION/ DEPARTMENT OF SOCIAL SERVICES of the CITY OF NEW YORK, the
person described in and who is duly authorized to execute the foregoing
instrument on behalf of the Commissioner, and he acknowledged to me that he
executed the same for the purpose therein mentioned.
/S/ XXXXX X. XXXXXXXX
---------------------------
NOTARY PUBLIC
STATE OF NEW YORK )
:ss:
COUNTY OF NASSAU)
On this 5 day of February 2002, before me personally came Xxx Xxxxxx, to me
known, who, being by me duly sworn, did depose and say that she resides at 000
Xxxx Xxxxxxxxx, Xxxxxxxxx, that (s)he is the VP-Provider Relations of the
American Medical Alert Corp., the corporation described in and which executed
the above instrument, that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he signed his name
thereto by like order.
/S/ XXXX X. RHIAN
---------------------
NOTARY PUBLIC
