Securities and Exchange Commission
Washington, DC 20549
Form 10-QSB
(X) Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended September 30, 1999
( ) Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from
_______________ to ________________
Commission file number 1-14827
EDUCATIONAL VIDEO CONFERENCING, INC.
(Exact name of small business as
specified in its charter)
Delaware 06-1488212
(State of other jurisdiction (IRS Employer Identification Number)
of incorporation of organization)
35 East Grassy Sprain Road, Yonkers, NY 10710
(Address of principal executive offices)
(914) 787-3500
(Issuer's telephone number, including area code)
Indicate by check mark whether the issuer (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No__
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date: 4,347,243 shares of Common
Stock as of November 1, 1999.
<PAGE>
Table of Contents
Part I
Financial Information
Item 1. Financial Statements Page
Balance Sheet as of September 30, 1999 (unaudited) and as of
December 31, 1998 (audited) 3
Statement of Operations for the three and nine month periods
ended September 30, 1999 and September 30, 1998 (unaudited) 4
Statement of Cash Flows for the nine month periods ended
September 30, 1999 and September 30, 1998 (unaudited) 5
Notes to Financial Statements 6-7
Item 2. Management's Discussion and Analysis of Financial Condition
And Results of Operations
Third Quarter Developments 7
Comparison of the three month periods ended
September 30, 1999 and September 30, 1998 9
Comparison of the nine month periods ended
September 30, 1999 and September 30, 1998 10
Liquidity and Capital Resources 10
Year 2000 Compliance 11
Forward-Looking Statements and Risk Factors 11
Part II
Other Information
Item 3. Changes in Securities and Use of Proceeds 12
Item 6. Exhibits and Reports on form 8-K 12
Signatures 13
Exhibit Index 14
2
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EDUCATIONAL VIDEO CONFERENCING, INC.
BALANCE SHEET
<TABLE>
<S> <C> <C>
September 30, 1999 December 31, 1998
(unaudited) (audited)
Assets
Current Assets:
Cash and cash equivalents.............................................. $ 9,919,704 $914,700
Accounts receivable, net of allowance for doubtful accounts
of $60,000 and $35,000 respectively.................................. 315,371 226,776
Prepaid expenses and other current assets.............................. 252,000 80,846
------------ ------------
Total current assets............................................................ 10,487,075 1,222,322
------------ ------------
Property and equipment, net..................................................... 2,769,118 1,405,150
------------ ------------
Deferred Income Tax Asset, net of valuation allowance ..........................
Other assets ................................................................... 72,503 7,832
Deferred offering costs......................................................... --- 900,000
------------ ------------
Total assets.................................................................... 13,328,696 3,535,304
============ ============
Liabilities and Stockholders' Equity
Current Liabilities:
Accounts payable and accrued expenses.................................. 783,158 920,643
Current maturities of capitalized lease obligations.................... 15,717 ---
------------ ------------
Total current liabilities....................................................... 798,875 920,643
Capitalized lease obligations, net of current maturities........................ 54,152 ---
------------ ------------
Total liabilities............................................................... 853,027 920,643
------------ ------------
Commitments
Stockholders' Equity:
Preferred stock - $.0001 par value; authorized 1,000,000 shares,
none issued....
Common stock - $.0001 par value; authorized 20,000,000 shares,
issued and outstanding 4,347,243 shares and 3,008,909 shares,
respectively.......................................................... 435 301
Additional paid-in capital............................................ 19,463,691 6,064,920
Accumulated deficit................................................... ( 6,988,457) (3,450,560)
------------ ------------
Stockholders' equity............................................................ 12,475,669 2,614,661
------------ ------------
Total liabilities and stockholders' equity...................................... $ 13,328,696 $ 3,535,304
============ ============
</TABLE>
See Notes to Financial Statements
3
<PAGE>
EDUCATIONAL VIDEO CONFERENCING, INC.
STATEMENT OF OPERATIONS
(unaudited)
<TABLE>
<CAPTION>
Three months ended Nine months ended
September September September September
30, 1999 30, 1998 30, 1999 30, 1998
--------- -------- --------- --------
<S> <C> <C> <C> <C>
Net revenue................................................. $ 137,630 $ 35,324 $ 477,425 $ 174,495
Interest income............................................. 133,169 28,071 330,398 39,620
---------- --------- ---------- ----------
Total revenue............................................... 270,799 63,395 807,823 214,115
---------- --------- ---------- ----------
Operating expenses:
Cost of sales........................................... 44,931 54,220 176,537 147,629
Salaries and benefits................................... 994,828 507,782 2,108,007 1,027,416
Marketing, brochures and student registration costs..... 320,889 126,010 794,221 314,683
Professional fees....................................... 57,912 13,987 118,521 52,963
Interest and financing costs............................ 2,570 22,276 2,570 107,822
Depreciation................................................ 129,511 49,109 289,510 159,304
Other....................................................... 346,819 126,355 856,354 263,895
---------- --------- ----------- ----------
Operating expenses.......................................... 1,897,460 899,739 4,345,720 2,073,712
---------- --------- ----------- ----------
Net loss.................................................... $(1,626,661) $ (836,344) $(3,537,897) $(1,859,597)
========== ========= ========== ==========
Basic loss per common share................................. ($ 0.37) ($ 0.30) ($0.87) ($0.74)
====== ====== ===== =====
Weighted average number of common shares outstanding 4,347,243 2,793,605 4,080,326 2,521,585
========== ========= ========= =========
</TABLE>
See Notes to Financial Statements
4
<PAGE>
EDUCATIONAL VIDEO CONFERENCING, INC.
STATEMENT OF CASH FLOWS
(unaudited)
<TABLE>
<CAPTION>
Nine months ended
September 30, 1999 September 30, 1998
<S> <C> <C>
Cash flows from operating activities:
Net loss................................................................. $(3,537,897) $(1,859,597)
Adjustments to reconcile net loss to net cash used
in operating activities:
Depreciation........................................................ 289,510 159,304
Amortization of debt issue costs.................................... --- 81,903
Allowance for doubtful accounts..................................... 25,000 7,000
Common Stock issued for services.................................... --- 10,500
Changes in operating assets and liabilities:
Increase in accounts receivable..................................... (113,595) (114,419)
(Increase) in prepaid expense and
other current assets............................................ (171,154) (129,387)
(Increase)/decrease in other assets................................. (64,671) 6,460
Decrease in accounts payable and
accrued expenses................................................. (137,485) (276,475)
----------- -----------
Net cash used in operating activities.................................... (3,710,292) (2,114,711)
----------- -----------
Cash flows used in investing activity:
Purchase of property and equipment.................................. (1,580,140) (174,086)
----------- -----------
Cash flows from financing activities:
Net proceeds from issuance of common stock.......................... 13,398,905 4,639,144
Decrease/(Increase) in deferred offering costs...................... 900,000 (155,000)
Principal payments under capital lease obligations.................. (3,469)
Repayment of notes payable.......................................... --- (110,177)
Expenses incurred in the conversion of notes payable
to common stock.................................................. (36,683)
Net cash provided by financing activities................................ 14,295,436 4,337,284
----------- -----------
Net increase in cash and cash equivalents................................ 9,005,004 2,048,485
Cash and cash equivalents at beginning of period......................... 914,700 127,279
----------- -----------
Cash and cash equivalents at end of period............................... $ 9,919,704 $ 2,175,764
=========== ===========
Supplemental disclosure of cash flow information:
Cash paid during the period for interest............................ --- $ 45,289
----------- -----------
Supplemental schedule of non-cash investing and financing activities:
Conversion of notes payable to common stock......................... --- $ 285,000
-----------
Capital lease obligations incurred.................................. $ 73,338 ---
-----------
</TABLE>
See Notes To Financial Statements
5
<PAGE>
Notes to Financial Statements
(unaudited)
Note 1 - Business and Basis of Presentation
Educational Video Conferencing, Inc. ("EVCI") is a leading high bandwidth and
Internet aggregator of educational content. EVCI delivers accredited college
courses, certificates and degree programs, as well as professional development
programs to corporations, government agencies, community groups, and the public
at large. With live interactive multimedia video conferencing, the instructor
can see and hear the students as the students see and hear the instructor, and
communicate with the instructor and other students. EVCI can deliver courses and
programs to conference and training rooms equipped for video conferencing and to
any personal computer that has been equipped with video conferencing capability.
EVCI believes it is the only company in the world to develop and utilize a
proprietary network and system of hardware and software which can deliver live
interactive two-way video conferencing at 30 frames per second
(broadcast-quality) over high speed Internet connections that include digital
subscribers lines ("DSL"), cable modems and satellite. EVCI also believes it is
the first company to market the services it provides to recipients of education
content within and outside of the US. EVCI provides its customers with access to
education providers and the marketing and administrative services necessary to
recruit and enroll students and deliver courses and programs to them. EVCI
receives a fee based on tuition payments received by the education provider,
typically after completion of courses.
The accompanying unaudited interim financial statements have been prepared in
accordance with generally accepted accounting principles for interim financial
information and the requirements of item 310(b) of Regulation S-B. Accordingly,
certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to the rules and regulations of the
Securities and Exchange Commission. The financial statements reflect all
adjustments (consisting of normal recurring adjustments) which, in the opinion
of management, are necessary for a fair presentation of the results for the
periods shown. There have been no significant changes of accounting policy since
December 31, 1998.
EVCI's results of operations for the interim periods are not necessarily
indicative of the results expected for the full fiscal year or for any future
period and should be read in conjunction with the audited financial statements
of EVCI as of December 31, 1998 and for the year then ended and the notes
thereto in the prospectus dated February 23, 1999 that was included in EVCI's
Registration Statement filed on Form SB-2 (Registration No. 333-66085).
The information in this report gives effect to a one-for-two reverse split of
the common stock effective February 23, 1999.
Note 2 - Initial Public Offering
See item 3 of Part II for information about the use of the proceeds of EVCI's
initial public offering that was completed in the first quarter of 1999 ("IPO").
6
<PAGE>
Note 3 - Earnings Per Share
Statement of Financial Accounting Standards ("SFAS") No 128, Earnings per Share,
requires dual presentation of basic earnings per share ("EPS") and diluted EPS
on the face of all statements for all entities with complex capital structures.
Basic EPS is computed as net earnings divided by the weighted-average number of
common shares outstanding for the period. Diluted EPS reflects the potential
dilution that could occur from common shares issuable through stock based
compensation including stock options, restricted stock awards, warrants and
other convertible securities. Diluted EPS is not presented since the effect
would be antidilutive.
Note 4 - Revenue Recognition
EVCI recognizes income ratably over the semester in which courses are given and
as services are performed. Unearned revenue from advance student billings is
netted against accounts receivable for financial statement reporting. For the
most recent semester beginning in September 1999, advance billings amounted to
$220,000, which amounts are expected to be recognized as revenue over the
related semester.
Note 5 - Income Taxes
No provision for income taxes has been made for all periods presented since EVCI
had net operating losses. These net operating losses have resulted in a deferred
tax asset at September 30, 1999. Due to the uncertainty regarding the ultimate
amount of income tax benefits to be derived from EVCI's net operating losses,
EVCI has recorded a full valuation allowance for the deferred asset as of
September 30, 1999.
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
The following information should be read in conjunction with Management's
Discussion and Analysis of Financial Condition and Results of Operations and the
financial statements and notes thereto for the year ended December 31, 1998
included in EVCI's prospectus dated February 23, 1999 and in conjunction with
the financial statements and notes thereto for the three and nine-month periods
ended September 30, 1999 and 1998 included in Item 1 of this report.
Third Quarter Developments
EVCI continued to implement its business strategy during the third quarter by
focusing on the following: (1) entering into long-term contracts with education
providers, (2) entering into long-term contracts with corporations and
government institutions, (3) pursuing programs to deliver courses to the
economically disadvantaged, (4) deploying EVCI's proprietary, live, two-way,
multi-point video conference distance learning equipment and software that is
expected to commence delivering courses over high speed Internet connections
during the first quarter of 2000, (5) signing co-marketing agreements with
telecommunications carriers and others with significant customer or constituent
bases, and (6) continuing to build its corporate infrastructure.
EVCI signed multi-year agreements with St. Johns University (College of
Business), Concordia College and Touro College , Touro University College and
Touro University International. EVCI can offer courses and programs from 14
sources: Adelphi University, The College of Insurance, Mercy College, Manhattan
College, Concordia College, Kaplan Educational Centers, Inc., Lesley College,
St. Johns University (College of Business), Touro College, Touro University
International, Touro University School of Health, Touro Law School, Dearborn
(TM), and Axess Point.
7
<PAGE>
EVCI extended its Lockheed Martin and Merrill Lynch "Telecommute to College"
programs. Lockheed began a new educational program at its Lockheed Martin
Tactical Aircraft Systems (LMTAS) division in Goodyear, AZ and in San Jose, CA.
By signing a multi-year agreement with Merrill Lynchs' Financial Services
Operations Systems, EVCI is expanding its offerings to employees of Merrill
Lynch Global Training and Development in Englewood, CA, Jacksonville, FL,
Somerset, NJ and Worsham, PA.
EVCI signed a multi-year agreement with the Board of Education of the City of
New York (NYCBoE) to offer its "Telecommute to College" program, starting with
School District 10 in the Bronx. Under this program, and a similar agreement
executed in the 2nd quarter with the City of Rochester, New York, EVCI is
offering area residents, district employees and school students access to a wide
variety of educational content, including accredited graduate and undergraduate
college degree programs and non-degree courses, professional development
programs, test preparation, AP courses, and K-12 after school programs.
EVCI signed a multi-year agreement with the Atlantic District Lutheran Church
Missouri Synod to start offering EVCI's "Telecommute to College" program to no
fewer than 10 churches starting in the first quarter of 2000. Under this and
similar "outreach programs," EVCI can reach unemployed or underemployed
individuals, who can qualify for substantial tuition assistance, by delivering
courses and programs to the facilities of community based organizations in
economically disadvantaged areas.
EVCI and Bell Atlantic Network Services, Inc., a subsidiary of Bell Atlantic
(NYSE: BA), entered into a multi-year joint marketing agreement whereby Bell
Atlantic will bundle the marketing of educational content delivered by EVCI with
Bell Atlantic's marketing of its high-speed digital subscriber lines (DSL's) to
Bell Atlantic's existing and potential DSL corporate and home customers in a 13
state area within the Northeast and Mid Atlantic regions. Marketing is expected
to start in the 1st quarter of 2000. EVCI will provide sales, technical and
training sessions regarding its services to the Bell Atlantic's marketing and
technical personnel. Bell Atlantic will receive a commission on any direct sales
or referrals that result in revenue for EVCI.
EVCI and We Media, Inc. entered into a multi-year agreement whereby We Media
committed $7.5 million over five years, $1.5 million a year, to promote EVCI
educational content to Americans with disabilities, their families and friends.
We Media will promote EVCI through its publications and web site and radio and
television advertising. EVCI also entered into an additional multi-year
agreement with We Media, providing for We Media to market EVCI services to
not-for-profit organizations servicing the disabled, their family and friends.
Under each agreement, EVCI and We Media will share revenues received by from
student enrollments and not-for-profit organizations.
EVCI signed a multi-year co-marketing agreement with the Excite @Home Network
(NASDAQ:ATHM) to provide Excite@Home consumers, cable subscribers, and others
access to programs offered by EVCI's education providers over the @Work and
@Home high-speed Internet network. @Home's Media Services and EVCI will
initially develop advertising that will bundle offerings of educational content
delivered by EVCI over video enabled computers with the @Work Remote high-speed
Internet service. These and additional creative services and the placement of
the resulting advertising on the @Home and Excite portal's will be purchased by
EVCI at discounted rates.
EVCI created a sports division that is being headed by Carl Banks, former New
York Giants' linebacker, and will initially target professional athletes who
want the courses and programs EVCI can deliver.
8
<PAGE>
Three months ended September 30, 1999 (third quarter of 1999) compared with the
Three months ended September 30, 1998 (third quarter of 1998)
Net revenues increased by 290% to $137,630 in 1999 from $35,324 in 1998 due
primarily to a 262% increase in student course enrollment, which increased to
790 in 1999 from 218 in 1998. To increase the rate and amount of student
enrollment, EVCI has been (i) increasing the number of student recruiters (by 7
during the quarter), (ii) working more closely with education providers and
customers to implement and administer their agreements with EVCI, (iii) focusing
on obtaining education providers with national and international reputations or
regional appeal outside of the Northeast, (iv) focusing on increasing corporate
training programs, and (v) providing training to EVCI's co-marketing partners
regarding student recruitment.
Interest income increased to $133,169 in 1999 from $28,071 in 1998 due to the
investment of the proceeds from the IPO.
Cost of sales decreased to $44,931 in 1999 from $54,220 in 1998 due primarily to
the reduced usage rates for operating EVCI's multipoint conferencing units,
which enable live, interactive multimedia communications between three or more
end points.
Salaries and benefits increased by 96% to $994,828 in 1999 from $507,782 in 1998
primarily due to the increase in EVCI staff during the quarter by 15 to 45 as
compared to 19 in 1998. The 15 additional employees are engaged as follows: 4 in
sales, 6 in recruiting, 3 in operations, 1 in business development and 1 in
administration. Also, the bonus accrual increased to 250,000 in 1999 from
$100,000 in 1998.
Marketing, brochures and student registrations costs increased to $320,889 in
1999 from $126,010 in 1998 due primarily to costs required to market EVCI's
services to an increasing number of potential students.
Professional fees increased to $57,912 in 1999 from $13,987 in 1998 primarily
due to legal fees resulting from our becoming a public company.
Interest and financing costs of $2,570 in 1999 relates to interest on capital
lease obligations and interest and financing costs of $22,276 in 1998 relates to
private placements in 1997 of debt that was retired in 1998.
Depreciation increased to $129,511 in 1999 from $49,109 in 1998 as a result of
purchases of videoconferencing equipment and equipment to test the delivery of
classes, using EVCI's proprietary software, that are delivered via high speed
Internet connections.
Other expenses increased to $346,819 in 1999 from $126,355 in 1998 primarily due
to increases in rent, communications, postage, insurance, computer expenses,
travel and entertainment costs, office expenses and investor relations costs
that were incurred to support EVCI's growth.
9
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Nine Months ended September 30, 1999 (first nine months of 1999) compared with
the nine months ended September 30, 1998 (first nine months of 1998)
Net revenues increased by 174% to $477,425 in 1999 from $174,495 in 1998 due
primarily to a 213% increase in student course enrollment, which increased to
1,386 in 1999 from 443 in 1998. To increase the rate and amount of student
enrollment, EVCI has been (i) increasing the number of student recruiters (by 9
during the nine months), (ii) working more closely with education providers and
customers to implement and administer their agreements with EVCI, (iii) focusing
on obtaining education providers with national and international reputations or
regional appeal outside of the Northeast, (iv) focusing on increasing corporate
training programs, and (v) providing training to EVCI's co-marketing partners
regarding student recruitment.
Interest income increased to $ 330,398 in 1999 from $39,620 in 1998 due to the
investment of the proceeds of the IPO.
Cost of sales increased to $176,537 in 1999 from $147,629 in 1998 due primarily
to the cost of the increased communications usage associated with operating
EVCI's multipoint conferencing units, which enable live, interactive multimedia
communications between three or more end points.
Salaries and benefits increased by 105 % to $2,108,007 in 1999 from $1,027,416
in 1998 primarily due to the increase in EVCI staff to 45 in 1999 from 19 in
1998. The additional 26 employees are engaged as follows: 8 in sales, 11 in
recruiting, 4 in operations, 1 in development and training, 1 in business
development and 1 in administration. Also, the bonus and commission accrual
increased to $250,000 in 1999 from $100,000 in 1998.
Marketing, brochures and student registration costs increased to $794,221 in
1999 from $314,683 in 1998 due primarily to costs required to market our
services to an increasing number of potential students.
Professional fees increased to $118,521 in 1999 from $52,963 in 1998 primarily
due to legal fees resulting from our becoming a public company.
Interest and financing costs of $2,570 in 1999 relates to interest on capital
lease obligations and interest and financing costs of $107,822 in 1998 relates
to private placements in 1997 of debt that was retired in 1998.
Depreciation increased to $289,510 in 1999 from $159,304 in 1998 as a result of
purchases of videoconferencing equipment and equipment to test the delivery of
classes, using our proprietary software, that are delivered via high speed
Internet connections
Other expenses increased to $856,354 in 1999 from $263,895 in 1998 primarily due
to increases in rent, communications, postage, insurance, computer expenses,
travel and entertainment costs, office expenses and investor relations costs
that were incurred to support EVCI's growth.
Liquidity and Capital Resources
The gross proceeds from sales by EVCI of its common stock in the IPO was
approximately $16,060,000 and the net proceeds received by EVCI was
approximately $13,399,000.
Capital expenditures for the nine months ended September 30, 1999 increased to
$1,580,140 compared to $174,086 for the nine months ended September 30, 1998.
This increase was directly attributable to purchases of
10
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video conferencing equipment required at EVCI's education providers' and our
corporate customers' sites where EVCI's video conferenced programs are offered
and for the purchase of equipment to test EVCI's proprietary network that
significantly facilitates teaching classes via EVCI's video conferencing systems
using high speed Internet connections. EVCI will continue to use its cash
resources as needed to implement the plan of operations described in its IPO
prospectus.
EVCI anticipates, based on current plans and assumptions relating to its
operations, that the proceeds from its IPO will be sufficient to satisfy its
cash requirements for at least the next 9 months. EVCI expects to require
additional funding in order to operate and grow and is considering various
available options. If, however, EVCI is underestimating its cash requirements,
EVCI will require additional debt or equity financing sooner. There can be no
assurance that any such required debt or equity financing will be available on
acceptable terms.
Year 2000 Compliance
The year 2000 problem is the result of a widespread programming technique that
causes computer systems to identify a date based on the last two numbers of a
year, with the assumption that the first two numbers of the year are "19." As a
result, the year 2000 would be stored as "00," causing computers to incorrectly
interpret the year as 1900. Left uncorrected, the year 2000 problem may cause
information technology systems (e.g. computer databases) and non-information
systems (e.g. elevators) to produce incorrect data or cease operating
completely.
EVCI uses recent releases of "off the shelf" software applications and
operational programs that are certified by the manufacturers to be year 2000
compliant. EVCI has contingency plans to deal with unanticipated year 2000
problems including backing up its database and financial and accounting records
and alternative ways of handling scheduling problems resulting from failures of
its multi-point conferencing unit. EVCI has been advised by its education
providers that they are year 2000 compliant and that they have contingency plans
in place to back up their accounting and financial records.
Publicly available information obtained by EVCI about its corporate customers
and telecommunications providers indicates they are making significant efforts
to be year 2000 compliant and are also developing contingency plans to deal with
unanticipated problems.
At this time, EVCI fully expects to be year 2000 compliant and believes that its
education providers and corporate customers and its significant vendors have
taken, or are taking, the steps necessary to be in compliance by the year 2000.
Nevertheless, significant uncertainties remain about the affect on EVCI of third
parties who are not year 2000 compliant.
Forward-Looking Statements and Risk Factors
This Form 10-QSB contains forward looking statements that are based on
management's beliefs, as well as assumptions made by, and information currently
available to, management. When used in this document, the words "anticipate",
"estimate", "expect", "will", "could", "may", and similar words are intended to
identify forward-looking statements. Such statements reflect EVCI's current
views with respect to future events and are subject to certain assumptions,
risks and uncertainties. These include: co-marketing efforts may not
substantially increase student enrollment; EVCI may not be able to obtain
education providers with the national, international or regional reputations
necessary to significantly increase demand for EVCI's services; competition is
likely to increase; and the other specific risk factors described in EVCI's IPO
prospectus, beginning on page 5. Should one or more of these risks or
uncertainties materialize, or should underlying assumptions prove incorrect,
actual results may vary materially from those anticipated by these
forward-looking statements. EVCI undertakes no obligation to update these
forward-looking statements and information.
11
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PART II
OTHER INFORMATION
Item 3. Changes in Securities and Use of Proceeds
Through September 30, 1999, the net proceeds of the IPO has been used as
follows:
Cash and investment grade obligations $ 9,920,000*
Purchasing and installing video conferencing equipment 1,600,000
Marketing 540,000
Hiring and training additional personnel 206,000
Other working capital and operating expenses 1,133,000
------------
$ 13,399,000
============
* At September 30,1999. Cash in non-interest bearing accounts was
approximately $22,000. .
Item 6. Exhibits and Reports on Form 8-K
The exhibits filed as a part of this report are listed in the accompanying
Exhibit Index.
12
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Draft - 11/09/99
SIGNATURES
In accordance with the requirements of the Exchange Act, the issuer caused this
report to be signed on its behalf by the undersigned, thereunto duly authorized.
EDUCATIONAL VIDEO CONFERENCING, INC.
Dated: November 12, 1999 By: /s/ Richard Goldenberg
---------------------------------
Richard Goldenberg
Chief Financial Officer
(Principal Financial and
Accounting Officer)
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EDUCATIONAL VIDEO CONFERENCING, INC.
EXHIBIT INDEX
10.7(a) - Agreement between the Registrant and Merrill Lynch, Pierce,
Fenner & Smith Incorporated for the Offering of Interactive
Televideo Courses and Distance Learning Programs dated June 30,
1999.
10.35 - Video Conferencing and Telecommunications Services Agreement
dated as of July 1, 1999 between the Board of Education of the
City School District of the City of New York on behalf of
Community District No. 10 and the Registrant.
10.36 - Agreement between the Registrant and Atlantic District Lutheran
Church Missouri Synod for the Offering of Interactive Televideo
Courses dated July 21, 1999.
10.37 - Letter Agreement between Excite@Home Network and the Registrant
dated July 26, 1999.
*10.38 - Agreement between the Registrant and Concordia College for the
Offering of Interactive Video Conferenced Courses dated August
19, 1999.
*10.39(a) - Agreement dated August 26, 1999 between We Media, Inc. and the
Registrant.
*10.39(b) - Agreement dated September 22, 1999 between We Media, Inc. and the
Registrant.
*10.40 - Co-Marketing Agreement dated September 1, 1999 between the
Registrant and Bell Atlantic Network Services, Inc.
*10.41 - Agreement dated September 1, 1999 between the Registrant and
Touro College and Touro University College and Touro
International.
*10.42 - Agreement between the Registrant and St. John's University for
the Offering of Interactive Video Conferenced and Internet-Based
Courses dated September 24, 1999.
27 - Financial Data Schedule
[*] Confidential treatment has been requested with respect to
portions of this exhibit.
14
*Confidential treatment has been requested with respect to portions of this
exhibit.
Exhibit 10.7(a)
AGREEMENT BETWEEN EDUCATIONAL VIDEO CONFERENCING, INC. AND
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
FOR THE OFFERING OF INTERACTIVE TELEVISED COURSES
AND DISTANCE LEARNING PROGRAMS
WITNESSETH
This AGREEMENT is executed this 30th day of June 1999, (and is effective as of
the 8th day of July, 1999) between Educational Video Conferencing Inc.
(hereinafter "EVC"), with offices located at 35 EastGrassy Sprain Road, Suite
504, Yonkers, New York 10710, and Merrill Lynch, Pierce, Fenner & Smith
Incorporated (hereinafter "Merrill Lynch"), with its World Headquarters located
at the World Financial Center, North Tower, 250 Vesey Street, New York, New York
10281.
Whereas, Merrill Lynch offers a Tuition Assistance Program to its employees
pursuant to which employees may qualify for reimbursement of tuition paid to
qualifying colleges and universities; and
WHEREAS, certain colleges and universities have contracted with third parties
which provide college courses to matriculated and non-matriculated students at
the students' place of employment via telecommunications and video conferencing
facilities, on an interactive, real-time basis (hereinafter referred to as
"Interactive Televideo Distance Learning"); and
WHEREAS, EVC is one such provider of Interactive Televideo Distance Learning
which is (a) currently under contract with colleges and universities which
qualify for Merrill Lynch's Tuition Assistance Program, and (b) paid by such
colleges and universities to deliver the college courses and materials
comprising the Interactive Televideo Distance Learning; and
WHEREAS, Merrill Lynch desires to provide its employees with the opportunity to
participate in Interactive Televideo Distance Learning at domestic locations
designated by Merrill Lynch pursuant to individual Schedule(s) issued pursuant
hereto; and
WHEREAS, EVC has the ability to provide such Interactive Televideo Distance
Learning and agrees to provide same to Merrill Lynch in accordance with the
terms and conditions of this Agreement;
<PAGE>
NOW, THEREFORE, the parties agree as follows:
EVC agrees to make available Interactive Televideo Distance Learning to Merrill
Lynch employee who (a) qualify for Tuition Assistance Program, (b) have made
application to their respective colleges and universities that they be allowed
to participate in Interactive Televideo Distance Leaning with EVC at designated
Merrill Lynch premises, and (c) have been granted the right by their college or
university to do so, commencing with the Fall 1999 semester.
Pursuant to Merrill Lynch's written request, which shall take the form of a
Schedule (an example of which is attached hereto as Exhibit A), EVC will provide
to Merrill Lynch, such materials (in hard copy and/or electronic format),
computer programs and Merrill Lynch approved equipment (collectively referred to
as "Technology") as may be necessary to implement the Interactive Televideo
Distance Learning; provided, however, that in all instances EVC shall be subject
to the security requirements and operational procedures of Merrill Lynch, as
well as the direction and management of the ML personnel who shall serve as the
"ML Site Liaison" The ML Site Liaison shall supervise, coordinate and manage the
implementation of EVC's Interactive Televideo Distance Learning at the ML
location designated in the Schedule with personnel from all relevant ML
business, functional and operational areas, e.g., Domestic Site Management,
Training and Development, Corporate Human Resources, and such other functional
and operational areas of Merrill Lynch which has/have jurisdiction over the ML
location and the business conducted therein or therewith.
EVC hereby agrees to take direction from the ML Site Liaison and such other ML
personnel as designated by the ML Site Liaison in Implementing the Interactive
Televideo Distance Learning to meet the dates and times for delivery of the
courses at the particular ML location. In no event shall EVC (1) use any ML
equipment, including without limitation any desktop computers or video
conferencing equipment at the designated ML location without the prior written
consent of authorized personnel, or (2) install any equipment on ML premises,
without the prior written consent of authorized personnel from (a) of the ML
business unit requesting the Interactive Televideo Distance Learning, and (b) ML
Domestic Site Management for such location.
EVC will provide video enabled computers for Merrill Lynch locations if
the student course registrations at said locations meet EVC projections for each
said location, subject to the approval of the appropriate Merrill Lynch business
unit and appropriate domestic site management.
It is acknowledged and agreed by EVC that under no circumstances shall the cost
of implementing EVC's interactive Televideo Distance Learning be borne by ML,
unless otherwise expressly agreed in the Schedule by authorized personnel of the
ML business unit requesting EVC's services and programming.
<PAGE>
In the event that, in the opinion of EVC, enrollment justifies additional video
conferencing room systems, EVC will provide and install such additional room
video conferencing systems that shall be compatible with Merrill Lynch's
installed base of video conferencing systems at no cost to Merrill Lynch,
subject to the approval of the appropriate Merrill Lynch business unit and
appropriate domestic site management.
MERRILL LYNCH agrees to allow EVC to transmit courses on a schedule to be
mutually agreed upon and general conformity with Monday through Thursday from
5:00 p.m. to 11:00 p.m., Friday 5:00 p.m. to 8:00 p.m. and Saturday from 9:00
a.m. to 3:00 p.m.
Subject to the approval of the appropriate Merrill Lynch business unit and
appropriate ML domestic site management, EVC will offer courses over video
enabled desktop computers supplied by EVC at locations to be mutually agreed
upon and subject to minimum college student course registrations.
MERRILL LYNCH agrees that it will make its employees aware of their option to
participate in the EVC Interactive Televideo Distance Learning program as part
of the ML Tuition Assistance Program
EVC shall also coordinate its activities with (and through) Ms. Carol Herman,
Manager, ML Tuition Assistance Program, and in accordance with ML's policies and
procedures concerning same.
EVC shall offer undergraduate and graduate courses and programs in Management,
Marketing, Economics, Finance and Accounting to MERRILL LYNCH from accredited
colleges and universities. The specific courses, degree programs and designated
colleges and universities shall be subject to the review and approval of the
manager, ML Tuition Assistance Program, or her designee, in consultation with
the ML Site Liaison, prior to the commencement of the applicable academic
term(s) ML will endeavor to complete such review and approval three (3) months
prior to such academic terms(s) Subject to Merrill Lynch's prior written
approval, certain communications describing the Interactive Televideo Distance
Learning program may be provided (electronically or otherwise) by Merrill Lynch
to Merrill Lynch employees. Such approval, if any, will be set forth in the
applicable Schedule.
MERRILL LYNCH's Tuition Assistance Program, through its Manager, agrees to
endeavor to provide EVC with such information concerning enrollment in the
Interactive Televideo Distance Learning program at ML as it deems reasonable and
necessary to the successful implementation and operation of the program at ML.
<PAGE>
Subject to the written approval of the appropriate Merrill Lynch business unit
and appropriate domestic site management, ML will allow EVC to utilize its
installed base of room systems to transmit courses to ML employees at no cost to
EVC.
Unless otherwise expressly provided in a Schedule by the ML business unit
requesting the Interactive Televideo Distance Learning at the designated ML
location, EVC agrees that it will pay all telecommunications costs, including
monthly charges, associated with signal transport from any educational provider
to EVC's bridge at no cost to Merrill Lynch. EVC is also responsible to pay all
multipoint bridging costs.
MERRILL LYNCH agrees that it will pay all telecommunications costs including
monthly charges associated with signal transport from ML's video conferencing
sites to EVCs bridge.
Merrill Lynch agrees that it will provide its employees with access to Merrill
Lynch facilities from which to participate in EVC courses at no cost to EVC; ML
shall be responsible for security personnel, if necessary.
It is acknowledged and agreed by EVC that the opportunity to present Interactive
Televideo Distance Learning to ML employees at ML designated locations is
provided to EVC on a non-exclusive basis; that nothing in this Agreement shall
prevent ML from entering into the same or similar arrangements with other
providers of the same or comparable services or programs. The parties agree that
they will cooperate with one another in promotion the EVC program to ML
employees.
EVC agrees to comply with all the rules, policies and procedures of ML Tuition
Assistance Program, as well as ML's security regulations and operational
procedures in implementing this Interactive Televideo Distance Learning program
at each ML designated location.
Subject to the approval of the appropriate Merrill Lynch business unit and
appropriate ML site management, EVC shall be permitted to conduct open houses
and registration meetings at such Ml locations as can be mutually agreed upon
from time to time.
MERRILL LYNCH shall grant EVC, its employees and/or agents such access to ML
facilities as shall be reasonably necessary to the installation and maintenance
of any equipment provided by EVC in connection with this agreement, as well as
for the proper administration of the program contemplated hereunder.
<PAGE>
Any equipment which is permitted by ML to be installed by EVC in conjunction
with this program (which permission, if granted, shall be set forth in the
Schedule applicable to the ML designated location and initialed by authorized ML
Domestic Site Management Personnel) shall remain the sole property of EVC and,
upon the expiration determination thereof shall be immediately picked by EVC.
MERRILL LYNCH shall be permitted to utilize EVC equipment when same is not in
use by EVC and agrees to hold EVC harmless and indemnify EVC for any loss or
damages resulting from the use of said equipment by ML; in addition, ML agrees
to immediately reimburse EVC for any costs associated with the repair or
replacement of any equipment lost, damaged or stolen while in ML's possession.
In addition, ML agrees not to permit any other use, other than by EVC of its
installed base of room systems during any regularly scheduled EVC class or
course; ML further agrees to promptly repair or replace, as necessary, any of
its equipment or systems which will be utilized by EVC in delivering access to
classes and programs hereunder.
The terms of this agreement shall be five (5) years from the date first written
above and this agreement shall be automatically extended for one additional year
on each anniversary of the original execution.
In the event that either party should desire not to automatically extend this
agreement, then the party so desiring must notify the other in writing, by
Certified Mail, Return Receipt Requested, not less than ninety (90) days prior
to the anniversary date of this agreement, in which case this agreement shall
only have four (4) years remaining in its term.
EVC's Intellectual Property Infringement Indemnification
EVC shall defend, at its sole expense, indemnify, defend and hold harmless
Merrill Lynch, its parents, and subsidiaries and affiliates of Merrill Lynch or
its parent, and their respective clients, customers, suppliers, licensors,
officers, directors, employees, agents, and contractors, from and against all
loss liability, damages, costs and expense, judgments and awards (including
without limitation, fees disbursements and expenses of legal counsel) resulting
in any way from a claim or action for Infringement by virtue of Merrill Lynch's
use and/or possession of the content, information, materials and/or Technology
comprising the Interactive Televideo Distance Learning program provided by or on
behalf of EVC hereunder. Merrill Lynch shall have the right to participate in
the defense or any such claim or action and all negotiations for its settlement
or compromise. Nothing herein shall give EVC the right to bind Merrill Lynch to
any agreement without its prior written consent.
<PAGE>
EVC, for itself and on behalf of its employees, agents, contractors and
representatives ("Personnel"), agrees to defend, indemnify and hold Merrill
Lynch, its parent and subsidiaries and affiliates of Merrill Lynch or its
parent, and their respective clients, customers, suppliers, licensors, officers,
directors, agents employees and contractors, harmless from and against any and
all liabilities, damages, losses, expenses, demands, claims, suits or judgments
(including reasonable attorney's fees, costs and expenses) arising out of or in
connection with (a) any act or omission of EVC or EVC's Personnel, or (b) the
services performed or the Interactive Televideo Distance Learning program
components, in whole or in part, provided hereunder.
Confidential Information
- ------------------------
EVC, on its own behalf and on behalf of EVC Personnel, agrees that any
information or material concerning Merrill Lynch, its parent or subsidiaries or
affiliates of Merrill Lynch or its parent, their respective clients, customers,
suppliers, licensors, officers, directors, employees, agents, and contractors,
which is provided or disclosed to EVC, or to which EVC may otherwise have access
during the term of this Agreement, is confidential and proprietary to Merrill
Lynch ("Merrill Lynch Confidential Information"). Such information shall be held
in trust and confidence by EVC and its personnel and shall not be disclosed to,
or reproduced or used by EVC or its Personnel for its own purposes or
distributed to any third-party. EVC acknowledges that all Merrill Lynch
Confidential information is the sole and exclusive properly of Merrill Lynch and
will be immediately returned by EVC either (a) upon request of Merrill Lynch or
(b) upon the termination of the Agreement, whichever occurs sooner. EVC shall
inform its Personnel of these restrictions on the use, possession, distribution
and disclosure of Merrill Lynch Confidential information and shall cause its
Personnel to execute all necessary and appropriate documents and writings to
ensure compliance with the obligations of trust and confidence set forth herein.
Representations, Warranties and Covenants.
- -----------------------------------------
(a) EVC represents and warrants and covenants that (i) it has the expertise,
experience and familiarity with the subject matter necessary to perform the
Interactive Televideo Distance Learning program and provide all the content,
materials, information and Technology comprising same under the terms of this
Agreement; (ii) that the Interactive Televideo Distance Learning program shall
be provided in accordance with and shall conform to the highest professional and
industry standards; (ii) that the Interactive Televideo Distance Learning
program shall be provided in accordance with and shall conform to the highest
professional and industry standards; (iii) EVC has all right, title and interest
in, or otherwise has the lawful right to provide, the Interactive Televideo
Distance Learning program, in whole and in part, to Merrill Lynch under the
terms and conditions of this Agreement; (iv) that EVC has all the requisite
agreements, consents, permissions and licenses to provide the Interactive
Televideo Distance Learning
<PAGE>
program to ML; and (v) that same does not Infringe upon any patent, copyright,
trade secret or other intellectual property right or interest, proprietary or
otherwise, of a third party ("Infringement");
EVC shall not use Merrill Lynch's name or logo, or that of its parent or any
subsidiary or affiliate of Merrill Lynch, or its parent, in any publicity
release or advertising or any other publicly distributed materials, including
without limitation via the Internet or on any web site(s) or web page(s),
without securing Merrill Lynch's prior written consent, which may be withheld in
its sole discretion. Under no circumstances shall EVC be permitted to use the
aforementioned logo, in any capacity or manner.
It is expressly agreed and understood that except for EVC's (a)
infringement indemnity obligations, (b) breach of confidentiality, (c)
intentional act(s), gross negligence or willful misconduct, and except for
damage to tangible property, neither party shall be liable for incidental,
special or consequential damages related to or in connection with this
Agreement.
All notices required to be given hereunder shall be done in writing and mailed
certified, return receipt requested, to the other party at their last known
address, and shall be deemed given when mailed.
This agreement shall be construed and interpreted under the laws of the State of
New York.
If any portion of this agreement is held to be void or unenforceable,
it shall not effect the validity and enforceability of the remaining portions.
Any disputes arising hereunder shall be determined by way of
arbitration before the American Arbitration Association at their offices located
in White Plains, New York.
The foregoing constitutes the entire agreement between the parties with
respect to the matters contained herein and no other such agreements shall be
valid unless in writing and subscribed to with the same formality as this
document.
WHEREFORE, the parties have hereunto affixed their hands and seals the date
first indicated above.
<PAGE>
MERRILL LYNCH
By:/s/ Jannine Viteli
-------------------------------
Jannine Viteli
Relationship Manager
FSOS, Performance Support
EDUCATIONAL VIDEO CONFERENCING, INC.
By: John J. McGrath, Ph.D
--------------------------------
John J. McGrath, Ph.D
President
Exhibit 10.35
BOARD OF EDUCATION OF THE CITY OF NEW YORK
CSD10 VIDEO CONFERENCING & TELECOMMUNICATIONS SERVICES AGREEMENT
----------------------------------------------------------------
AN IN-KIND SERVICES AND PERMIT AGREEMENT entered into as of the first day
of July, 1999 by and between the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT
OF THE CITY OF NEW YORK (hereinafter expressed as "Board of Education," "Board"
or "BOE"), with principal offices located at 110 Livingston Street, Brooklyn,
New York 11201-5068, on behalf of Community School District No. 10 (hereinafter
expressed as "CSD10"), and EDUCATIONAL VIDEO CONFERENCING, INC. (hereinafter
expressed as "Contractor"), with principal offices located at 35 East Grassy
Sprain Road, Suite 200, Yonkers, New York 10710, to provide professional
services, expertise, labor, equipment, materials, supplies, professional
development training and continuing support and maintenance services for the
installation, operational start-up, support and/or maintenance of interactive
video conference distance learning system (hereinafter expressed as "IVC/DLS")
facilities at five (5) CSD10 locations.
WITNESSETH
WHEREAS, the BOE and CSD10 have determined a need and desire to acquire and
establish in-school facilities, equipment, services and curriculum for the
installation, development and continuing operation of IVC/DLS facilities and
other professional services, equipment, materials and supplies for the purposes
of allowing CSD10 administrators and teachers to conduct classroom teaching
programs from remote locations, classroom teaching at multiple locations, and
professional conference and staff development programs for multiple locations
(hereinafter expressed as "School-Based Teleconferencing Program"); and,
WHEREAS, the Contractor has offered to install and maintain IVC/DLS
facilities in certain classrooms located in four (4) BOE intermediate schools
under the jurisdiction of CSD10 as well as CSD10's headquarters offices, and to
train CSD10 administrators and teachers in the use of such equipment; and,
WHEREAS, in consideration of its offer of equipment usage and training, the
Contractor seeks to use such IVC/DLS equipment to operate its own proprietary
educational programs outside of school hours on weekday afternoons and evenings
and on weekends, which proprietary education programs would be open to the
general public; and, CSD10's Community Superintendent has agreed to and endorsed
this use of BOE school facilities by the Contractor in exchange for the use of
the equipment and in-kind services; and,
WHEREAS, as hereinafter expressed in greater detail, the Contractor does
hereby acknowledge, agree and warrant that the BOE and CSD10 shall not incur any
expenditure of funds regarding the installation, maintenance and operation of
the video teleconferencing equipment, except as hereinafter specified; and,
Page 1
<PAGE>
BOARD OF EDUCATION OF THE CITY OF NEW YORK
CSD10 VIDEO CONFERENCING & TELECOMMUNICATIONS SERVICES AGREEMENT
----------------------------------------------------------------
WHEREAS, the Contractor does hereby acknowledge, represent and warrant that
it is ready, willing and able to provide the Services, as herein specified, to
the BOE school system in compliance with the following terms, conditions and
specifications; and the BOE does hereby acknowledge and agree that it is ready,
willing and able to allow the Contractor to have access to the specified school
and office facilities;
NOW, THEREFORE, in consideration of the heretofore-recited stipulations and
the hereinafter-expressed terms, conditions and specifications, the Board and
the Contractor, as the parties to the Agreement, do hereby acknowledge, agree
and covenant both as above and as follows:
(1) TERM OF AGREEMENT. Wherever it shall appear in this Agreement, the term
-----------------
"Original Period" shall mean the initial term of this Agreement as hereinafter
expressed at Paragraph 1(A). Wherever they shall appear in this Agreement, the
terms "Additional Period" and "Additional Periods" shall mean renewals for
additional terms of this Agreement, if any, as hereinafter expressed at
Paragraph 1(B). Wherever it shall appear in this Agreement, the word "Term"
shall mean the overall duration of this Agreement including the Original Period,
all Additional Periods, if any, and any further extension thereafter.
(A) Original Period. The Original Period of this Agreement shall
----------------
commence on March 1, 1999 and extend through and terminate on June 30,
2005, unless extended beyond such termination date or terminated earlier,
either of which pursuant to the terms and conditions hereinafter expressed.
(B) Additional Periods. The Term shall be renewed automatically for
-------------------
five (5) Additional Periods of one (1) year each from July 1, 2005 until
June 30, 2006 (hereinafter expressed as "first" Additional Period), from
July 1, 2006 until June 30, 2007 (hereinafter expressed as "second"
Additional Period), from July 1, 2007 until June 30, 2008 (hereinafter
expressed as "third" Additional Period), from July 1, 2008 until June 30,
2009 (hereinafter expressed as "fourth" Additional Period), and from July
1, 2009 until June 30, 2010 (hereinafter expressed as "fifth" Additional
Period), except that the Board and the Contractor shall each have options
to cancel one or more of the Additional Periods in the manner hereinafter
prescribed. This provision shall not derogate, diminish or otherwise affect
the Board's right to cancel the balance of the Agreement during the
Original Period or the Additional Periods, if any, for any reason(s)
expressed in Attachment G, as such document is hereinafter incorporated
into the Agreement.
(C) Option to Cancel Additional Period(s). The Board and the
-----------------------------------------
Contractor shall each have options to cancel the renewal of the Agreement
for one or more Additional Periods. The Chancellor or his/her designee(s)
shall have sole discretion to exercise the Board's options to cancel the
Additional Periods. If the Chancellor, his/her designee(s) or the
Contractor shall opt to cancel one or more Additional Periods, he/she/it
shall provide written notice to the other party of each decision not less
Page 2
<PAGE>
BOARD OF EDUCATION OF THE CITY OF NEW YORK
CSD10 VIDEO CONFERENCING & TELECOMMUNICATIONS SERVICES AGREEMENT
----------------------------------------------------------------
than four (4) calendar years in advance of the start of each affected
Additional Period, i.e., by not later than the close of business on June
29, 2001 to cancel the first Additional Period, by not later than the close
of business on June 28, 2002 to cancel the second Additional Period, by not
later than the close of business on June 30, 2003 to cancel the third
Additional Period, by not later than the close of business on June 30, 2004
to cancel the third Additional Period, and by not later than the close of
business on June 30, 2005 to cancel the fifth Additional Period. If the
Chancellor, his/her designee(s) or the Contractor shall opt to cancel the
any given Additional Period, such action shall automatically cancel all
succeeding Additional Periods as well.
(D) Criteria for Additional Period(s). Before the notice deadline for
---------------------------------
exercise of each option to cancel, the Chancellor's designee(s) shall
conduct a review of CSD10's use of, and benefits from, the IVC/DLS
facilities and the Contractor's other professional services, equipment,
materials and supplies, and the Contractor's performance of its obligations
under the Agreement. The said evaluation shall be the basis for the
decision by the Chancellor or his/her designee(s) whether or not to
exercise the Board's options to cancel one or more of the Additional
Periods of the Agreement.
(E) Additional Option to Cancel Agreement. The Board shall have the
---------------------------------------
option at any time after the second anniversary of this Agreement, i.e.,
after July 1, 2001, to cancel the balance of the Term with or without cause
upon the provision of twelve (12) months advance written notice to the
Contractor. The Chancellor or his/her designee(s) for general contractual
oversight shall have sole discretion to exercise this BOE option to cancel
the Agreement. Whereupon the Board shall exercise its option to cancel the
Agreement under this Paragraph 1(E), the BOE shall cease to have any
obligation and/or liability to the Contractor as of the effective date of
the said termination for any costs that shall or may accrue thereafter or
for any other reason whatsoever.
(2) BOE COSTS UNDER THE AGREEMENT. The terms, conditions and stipulations
expressed in this Paragraph 2 and elsewhere in this Agreement regarding BOE
costs and/or payments shall prescribe and govern any such costs and/or payments
to be made and/or incurred by the BOE throughout the Term, all else to the
contrary notwithstanding:
(A) The Contractor stipulates, warrants and agrees that the BOE shall
not be required under any circumstances and/or to any extent whatsoever to
make and/or incur any payments, expenses, costs, outlays, loans, and/or
other transfers of BOE assets due to, and/or arising from, any aspect(s) of
the Services to be performed by the Contractor or the grant of a continuing
extended use permit to the Contractor under this Agreement, except for
telecommunication service costs attributable to CSD10's independent use of
the IVC/DLS equipment as hereinafter expressed at Paragraph 3. The
Contractor shall not make any demand to or against the BOE for, nor shall
the Contractor be entitled to receive from the BOE, compensation of any
Page 3
<PAGE>
BOARD OF EDUCATION OF THE CITY OF NEW YORK
CSD10 VIDEO CONFERENCING & TELECOMMUNICATIONS SERVICES AGREEMENT
----------------------------------------------------------------
kind or to any extent for the Services to be performed under this Agreement
and/or for any payments, costs, expenses, outlays, loans, and/or other
transfers of Contractor assets that the Contractor shall make and/or incur
due to, and/or arising from, the Contractor's performance of the Services,
the Contractor's use of the permit granted hereunder for the conduct of
proprietary educational programs and/or any other of the Contractor's
activities under this Agreement, except for telecommunication service costs
attributable to CSD10's independent use of the IVC/DLS equipment as
hereinafter expressed at Paragraph 3. Furthermore, the Contractor shall not
make any demand to or against the Board for, nor shall the Contractor be
entitled to receive from the Board, any payments, loans and/or transfers of
any kind and/or to any extent whatsoever regarding any profits, gains,
earnings, returns, dividends, proceeds, revenues, and so forth that the
Contractor shall or may anticipate due to, and/or arising from, the
Contractor's performance of the Services, the Contractor's use of the
permit granted hereunder for the conduct of proprietary educational
programs and/or any other of the Contractor's other activities pursuant to
this Agreement. The Board and the Contractor stipulate and agree that the
Contractor's expenses, costs, outlays, loans, and/or other transfers of
Contractor assets as well as the Contractor's compensation, profits, gains,
earnings, returns, dividends, proceeds, revenues and so forth shall be
covered solely by, and derived solely from, the tuition, fees, commissions,
compensation and/or other payment arrangements that the Contractor is able,
as the Board's permittee, to generate independently from individuals,
corporations and/or other entities who shall or may attend the Contractor
proprietary educational programs as herein detailed. Furthermore, the
Contractor stipulates, warrants and agrees that the BOE shall not be
required under any circumstances and/or to any extent whatsoever to make
and/or incur any payments, expenses, costs, outlays, loans, and/or other
transfers of BOE assets due to, and/or arising from, any refunds, claims or
other forms of liability asserted against the Contractor by any pupil,
participant, client, employee or agent of the Contractor's or any other
third party arising from the Contractor's performance of the Services, use
of its permit or any other activities under this Agreement.
(B) The Contractor stipulates, warrants and agrees that the BOE shall
not be required under any circumstances or to any extent whatsoever to make
or incur any payments, expenses, costs, outlays, loans, and/or other
transfers of Board assets due to, and/or arising from, any damage(s) to
Board personal and/or real property caused, allowed and/or occasioned by
the performance of the Services, the use of the permit granted hereunder
and/or other activities under this Agreement by the Contractor and/or the
Contractor's agents, servants, employees, owners (including, without
limitation, both parent and over-parent entities), partners (including,
without limitation, general, limited, silent and apparent partners),
directors, officers, subcontractors, subcontractor employees, volunteers,
invitees, licensees, designees, assigns or any other representatives. The
Contractor stipulates, warrants and agrees that the Contractor and/or its
insurance policy(ies) coverage shall be solely responsible for, and shall
Page 4
<PAGE>
BOARD OF EDUCATION OF THE CITY OF NEW YORK
CSD10 VIDEO CONFERENCING & TELECOMMUNICATIONS SERVICES AGREEMENT
----------------------------------------------------------------
promptly pay and reimburse the Board for all costs and other transfers of
assets that the Board shall incur as a result of any damage(s) to such
Board personal and/or real property caused, allowed and/or occasioned by
the performance of the Services, the improper use of the permit granted
hereunder or other activities under this Agreement by the Contractor and/or
the Contractor's agents, servants, employees, owners (including, without
limitation, both parent and over-parent entities), partners (including,
without limitation, general, limited, silent and apparent partners),
directors, officers, elected or appointed officials, members,
subcontractors, subcontractor employees, volunteers, invitees (except
willful acts by the Contractor's students), licensees, designees, assigns
or any other representatives.
(C) Furthermore, except for telecommunication service costs
attributable to CSD10's independent use of the IVC/DLS equipment as
hereinafter expressed at Paragraph 3, the Contractor warrants, covenants
and agrees to reimburse the BOE promptly, upon written request, for
payments, expenses, costs, outlays, and/or other transfers of BOE assets
that the Board shall be compelled to incur due to, and/or arising directly
from, any act(s) of commission and/or omission under this Agreement by the
Contractor and/or the Contractor's agents, servants, employees, owners
(including, without limitation, both parent and over-parent entities),
partners (including, without limitation, general, limited, silent,
apparent, senior and junior partners), directors, officers, elected or
appointed officials, members, subcontractors, subcontractor employees,
volunteers, invitees, licensees, designees, assigns or any other
representatives.
(3) GRANT OF EXTENDED USE PERMIT. The following terms, conditions and
-----------------------------
specifications shall prescribe and govern the Board's grant of a continuing
extended use permit to the Contractor:
(A) Throughout the Term, the Board does hereby grant and convey to the
Contractor a non-exclusive continuing extended use permit for the limited
purposes of all aspects of the Services specified hereunder and the conduct
of proprietary educational programs and classes via the means of the
Contractor's IVC/DLS facilities and equipment at the following five
locations: (1) the Mosholu Parkway Intermediate School (I.S. 80), 149 East
Mosholu Parkway, Bronx, New York 10467; (2) the Thomas C. Giordano
Intermediate School (I.S. 45), 2502 Lorillard Place, Bronx, New York 10458;
(3) the Riverdale/David Stein Intermediate School (I.S. 141), 660 West
237th Street, Bronx, New York 10463; and, (4) the Angelo Patri Middle
School (M.S. 321), 2225 Webster Avenue, Bronx, New York 10457.
(B) The days and hours during which the Contractor may utilize its
permit to occupy and use the space at the four school locations expressed
heretofore at Paragraph 3(A) are as follows: (1) at the Mosholu Parkway
Intermediate School (I.S. 80) and the Thomas C. Giordano Intermediate
Page 5
<PAGE>
BOARD OF EDUCATION OF THE CITY OF NEW YORK
CSD10 VIDEO CONFERENCING & TELECOMMUNICATIONS SERVICES AGREEMENT
----------------------------------------------------------------
School (I.S. 45), both of which are BOE Beacon Schools,<F1> the
Contractor's permit shall allow use of classroom and other facilities in
each such building as specified in writing by the Chancellor or his/her
designee(s) from 3:00 P.M. to 10:00 P.M. on BOE school calendar days<F2>
and on such Saturdays that do not constitute BOE school and/or
administrative holidays from 9:00 A.M. to 10:00 P.M.; and, (2) at the
Riverdale/David Stein Intermediate School (I.S. 141) and the Angelo Patri
Middle School (M.S. 321), both of which are regular BOE schools,<F3> the
Contractor's permit shall allow use of classrooms and other facilities in
each such building as specified in writing by the Chancellor or his/her
designee(s) from 3:00 P.M. until 5:00 P.M. on BOE school calendar days
only. The Chancellor or his/her designee(s) shall have reasonable
discretion to determine which classroom(s) and other space in each listed
BOE site shall be allocated to the Contractor.
(C) In view of this Agreement, the Board hereby consents to waive the
regular BOE Extended Use Permit approval process, although the Contractor
shall complete a "Permit Application--School Buildings" (Form PO 68) and
submit the same to the Chancellor's designee(s) not later than thirty (30)
calendar days from the Agreement's execution date. The said "Permit
Application--School Buildings" (Form PO 68) is contained in the BOE
STANDARD OPERATING PROCEDURES FOR FINANCIAL MANAGEMENT CENTERS, Chapter XXV
entitled, "Extended Use of School Buildings," which Chapter XXV is hereby
incorporated into, and made part of, this Agreement as "Attachment A."
Furthermore, the Board of Education does hereby waive any charges for
electricity, heat, hot water, water, air conditioning, extended use fees
(for periods when schools are normally open for community use), security
costs, and custodial services that the BOE would normally charge a school
building extended use permittee. As a condition for the grant of a
continuing extended use permit for BOE facilities, the Contractor does
hereby consent, agree, covenant, promise and warrant to comply in every
respect with all of the rules, regulations, policies and procedures
expressed in Attachment A. If the Contractor shall fail and/or refuse to
submit a fully completed and duly certified "Permit Application--School
Buildings" (Form PO 68) by not later than the close of business on the
thirtieth (30th) calendar day following the Agreement's execution date, the
- -------------------
<F1> A "Beacon School" is a Board of Education public school as operated by
CSD10,for which Federal, State of New York, City of New York, other public
sector and/or private sector grants and other funding are received to enable the
BOE and CSD10 to keep the school open to the local public school and general
communities on weekday afternoons and evenings and on Saturdays during the days
and evenings. Except in unusual circumstances that are not contemplated to arise
under this Agreement, BOE and CSD10 Beacon Schools and other schools are closed
on all Sundays and all BOE school calendar holidays.
<F2> The term "BOE school calendar day" is hereby defined as a day when New York
City Public Schools are in session for students in accordance with official BOE
school calendars such as, but not limited to, the annual "Brief Calendar"
published as Regulation of the Chancellor No. B-101.
<F3> Regular Board of Education and CSD10 primary, elementary, middle,
intermediate and junior high schools are open free of charge to the local public
school and general communities only on BOE school calendar day afternoons from
the end of daily school sessions until 5:00 P.M. Unless there is payment of an
extended use permit fee, such regular schools are closed evenings and Saturdays.
As heretofore expressed at Note 1, all BOE and CSD10 schools are closed on all
Sundays and all BOE school calendar holidays.
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Chancellor or his/her designee(s) shall have the option to cancel this
Agreement in its entirety upon five (5) calendar days advance written
notice to the Contractor. Whereupon the Chancellor or his/her designee(s)
shall transmit such notice to the Contractor, the Board of Education shall
be relieved of all obligation and liability to the Contractor under this
Agreement.
(D) The BOE and CSD10 do hereby acknowledge that the Contractor shall
be using school facilities on an extended use basis on days and during
hours when the affected schools shall be open for school and community
purposes and activities. Therefore, the Contractor shall not be liable to
pay any extended use fees to the BOE for such days and times when the
affected school buildings are open. However, in the event that the
Contractor shall use any BOE school buildings on days or at times when
extended use fees would be applicable pursuant to Attachment A, the
Contractor shall pay all such extended use fees, if any, within thirty (30)
calendar days of each request by the Chancellor or his/her designee(s). The
preceding sentence conforms to the Contractor's agreement regarding the
limitation of BOE costs and expenses as heretofore expressed at Paragraph
2.
(E) In case Federal, State of New York, City of New York, other local,
private and/or other funding for the two (2) heretofore-listed Beacon
Schools shall cease or be reduced for any reason whatsoever and/or to any
extent whatsoever so that the BOE and/or CSD10 shall no longer be
reasonably able to operate the two (2) heretofore-listed Beacon Schools as
Beacon Schools, the Contractor does hereby consent, acknowledge and agree
that it shall cease and/or limit operations at the affected former Beacon
School to such hours as permitted in a regular BOE school without an
extended use permit fee(s), i.e., from 3:00 P.M. to 5:00 P.M. on BOE school
calendar days only. If one or both of the heretofore-listed Beacon Schools
shall be closed or shall have its hours of operations curtailed, the
Contractor may exercise one of the following options: (1) to pay for the
school opening costs specified in Attachment A to run its proprietary
educational programs after normal school hours at the one or both former
Beacon Schools; (2) to move its equipment at its sole cost and expense
(including all costs for the full and complete repair and restoration of
the affected former BOE school premises to their conditions before the
Contractor's occupancy) from one or both former Beacon Schools to one or
both of up to two new Beacon Schools that may come into operation via any
new or changed Federal, State, local, private and/or other funding; or, (3)
to cancel this Agreement upon six months advance written notice to
Chancellor and his/her designee(s). If one or both of the heretofore-listed
Beacon Schools shall be closed or shall have its hours of operation
curtailed before the expiration of the Original Period and the Contractor
shall have elected to cancel the Agreement, then the Contractor shall have
the option within ninety (90) calendar days from such cancellation to
retain all right, title and interest in all of the IVC/DLS equipment that
it shall have installed in any BOE school site (except for the IVC/DLS
equipment installed at CSD10 headquarters) and to remove such equipment
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from BOE school sites at its sole cost and expense, which cost and expense
shall include the complete repair and restoration of all affected BOE
school premises to their good conditions as if the Contractor's occupancy
shall have never occurred. If the Contractor shall fail and/or refuse to
perform the repair and restoration work expressed in the preceding sentence
to the reasonable satisfaction of the Chancellor or his/her designee(s),
the Contractor does hereby agree and warrant that it shall not remove any
of the IVC/DLS equipment that it shall have installed any BOE school sites;
and, the Contractor does hereby stipulate and agree that, upon its
departure from an affected BOE school site(s) without having effected the
said satisfactory repair and restoration work, all right, title and
interest to the IVC/DLS equipment located in all BOE school sites shall
pass from the Contractor to the BOE without the necessity of any further
action by the parties.
(F) In accordance with the terms and conditions expressed heretofore
at Paragraph 2, the Contractor does hereby agree, covenant and warrant to
obtain and install, at its sole cost and expense, a separate
telecommunication line for the IVC/DLS unit installed at CSD10
headquarters, i.e., a telecommunication line distinct from the BOE line(s)
used for community school district business, although CSD10 shall pay for
all telecommunication service charges that may be incurred during the Term
for the Board's use of IVC/DLS equipment at the CSD10 headquarters. In
accordance with the terms and conditions heretofore-expressed at Paragraph
2, furthermore, the Contractor shall/may exercise one of the two following
options for the installation of telecommunication lines at the
heretofore-listed BOE school sites and any other BOE school sites that the
Contractor may occupy during the Term of this Agreement:
(1) The Contractor shall obtain, at its sole cost and expense, a
single separate telecommunication line for each IVC/DLS unit installed
at a BOE school site, i.e., a telecommunication line distinct from the
BOE line(s) used for school purposes, and shall pay all
telecommunication service charges and taxes that may be incurred
during the Term due to the Contractor's use of the IVC/DLS equipment
at BOE school sites. In return, CSD10 shall pay for all
telecommunication service charges, exclusive of Federal, State and
local sales, compensating use and excise taxes, that its employees,
and agents incur during the time CSD10 shall be allowed hereunder to
utilize the IVC/DLS equipment. If the Contractor shall select this
first option, the Contractor shall submit a printed invoice(s) not
more frequently than monthly to CSD10, in which all monthly service
charges and per call charges, exclusive of Federal State and/or local
sales, excise and/or compensating use taxes, shall be detailed fully;
or,
(2) The Contractor shall obtain, at its sole cost and expense,
two separate telecommunication lines for each IVC/DLS unit installed
at a BOE school site, i.e., two telecommunication lines distinct from
the BOE line(s) used for school purposes. One such telecommunication
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line for each IVC/DLS unit shall be dedicated solely to the
Contractor's use, and the Contractor shall be solely responsible to
pay all telecommunication service charges and taxes that may be
incurred during the Term on the said dedicated telecommunication line.
The second telecommunication line for each IVC/DLS unit shall be
dedicated solely to CSD10's use, and CSD10 shall be solely responsible
to pay all telecommunication service charges that its employees,
agents and invitees incur in the course of BOE use of the second
telecommunication line. If the Contractor shall select the option
expressed in this Paragraph 3(F)(2), the Contractor shall arrange with
its telecommunication carrier(s) to have CSD10 listed and billed
separately as the customer on the second telecommunication line for
each IVC/DLS unit installed at a BOE school site.
(G) By not later than thirty (30) calendar days from this Agreement's
execution date, the Contractor shall submit to the Chancellor's designee(s)
a fully completed and duly certified "Contractor Questionnaire," which
document is hereby incorporated into, and made part of, this Agreement as
"Attachment B." If the Contractor shall fail and/or refuse to submit a
completed and duly certified "Contractor's Questionnaire" by not later than
the close of business on the thirtieth (30th) calendar day following the
execution date of this Agreement, the Chancellor or his/her designee(s)
shall have the option to cancel this Agreement in its entirety upon five
(5) calendar days advance written notice to the Contractor. If the
Chancellor or his/her designee(s) shall find that the Contractor shall have
made any knowingly false and/or misleading entry upon the said
"Contractor's Questionnaire," the Chancellor or his/her designee(s) shall
have the option to cancel this Agreement in its entirety upon five (5)
calendar days advance written notice to the Contractor. Whereupon the
Chancellor or his/her designee(s) shall transmit notice to the Contractor,
as expressed in either or both of the two (2) immediately preceding
sentences, the Board of Education shall be relieved of all obligation and
liability to the Contractor under this Agreement.
(H) For one day each on not more than six occasions per BOE school
year, the Contractor may conduct an "open house" at each of the
heretofore-listed BOE school sites (or each replacement school site). The
term "open house" is hereby defined as a one-day event during the regular
hours of operation of each affected BOE school site, in which the
Contractor may have up to a maximum of two tables or booths (with up to
four chairs for each table or booth), each staffed by up to a maximum of
four of the Contractor's employed or subcontractor personnel, for the
purpose of the distribution of literature, provision of verbal and other
information, and the registration of pupils for its proprietary educational
courses. By not later than thirty (30) calendar days before the start of
each BOE school year, the Contractor shall provide written notice to the
Chancellor's designee(s) of the "open house" dates at each BOE school site
for the prospective year. Furthermore, the Contractor may install up to a
maximum of three fixtures at each of the heretofore-listed BOE school sites
(or each replacement school site) for the purposes of displaying and
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storing information about its proprietary educational courses. The term
"BOE school year" is hereby defined as the ten-month annual period from the
first official day of school each September through the last official day
of school each June. The said fixtures may consist of any combination of
the following types of fixtures up to a cumulative maximum of three units
per BOE school site: (1) freestanding, magazine-style metal racks (no sharp
or jagged edges and/or glass components shall be permitted) not larger that
40" high by 24" wide by 24" deep; (2) freestanding, wooden or metal cases
with shelves (no sharp or jagged edges and/or glass components shall be
permitted) not larger that 48" high by 48" wide by 24" deep; and/or, (3)
freestanding, cylindrical or four-sided, wooden or metal, electronic or
non-electronic kiosks (no sharp or jagged edges and/or unbreakable glass
components shall be permitted) not larger that 72" high by 36" wide by 36"
deep. Without cost to the BOE, the Contractor shall allow each BOE school
to use for various school and/or educational purposes up to a maximum of
fifty percent (50%) of the display space of each kiosk that the Contractor
shall opt to install at a BOE school site. The types of promotional
information and displays that the Contractor may use on BOE premises shall
be limited to those expressly stated in this Agreement. The Contractor
shall bear the sole cost and expense for the transportation, installation,
repair, maintenance, replacement and removal of all the
heretofore-described "open house" equipment and materials as well as
display fixtures. At all times, the Contractor shall maintain all such
"open house" equipment and materials as well as all display fixtures in
clean, good working order and free from defects as well as graffiti and
other defacements. Before installation of any of the heretofore-described
fixtures, the Contractor shall submit an actual physical sample or a
complete, detailed sample drawing of each type of display fixture it plans
to utilize at BOE school sites to the Chancellor's designee(s) for
approval, which shall not be withheld and/or delayed unreasonably. Title
and ownership of every unit of "open house" equipment and every unit of
display fixtures shall be and remain vested in the Contractor, and the BOE
shall not have any responsibility whatsoever for the same. The Contractor
shall submit one copy each of every distinct unit of print or graphic
advertisement, promotional literature, proposed script for oral
presentation, pre-recorded promotional audio presentation, pre-recorded
promotional visual presentation, and pre-recorded promotional audio/visual
presentation for prior approval to the Chancellor's Committee for Approval
of School Advertisements (hereinafter expressed as "CASA"), located at
Board of Education of the City of New York, 65 Court Street, Room 1703,
Brooklyn, NY 11201-4954, Attention: Elizabeth A. Knipfing (or her successor
as notified by the CASA chairperson). (The preceding shall not include
course catalogs, registration forms, financial aid forms, academic
transcript forms, matriculation forms, and other non-promotional or
non-advertising materials.) CASA shall have the sole, absolute and final
right of prior approval of every distinct unit of advertisement,
promotional literature, registration form, proposed script for oral
presentation, pre-recorded promotional audio presentation, pre-recorded
promotional visual presentation, pre-recorded promotional audio/visual
presentation and any other promotional material that the Contractor seeks
to distribute, display or otherwise communicate at, in or to any BOE
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school. Upon the Contractor's written request, CASA shall furnish a copy of
its written regulations and procedures, which shall be binding upon the
Contractor and which may be updated, revised, added, deleted or otherwise
changed at any time without prior notice to the Contractor.
(4) SERVICES. Wherever used in this Agreement, the term "Services" shall be
--------
deemed to describe collectively all professional, supervisory, administrative,
educational, training, creative, technical, architectural, construction,
maintenance, continuing support, expert advisory and other activities as well as
all of the labor, goods, commodities, equipment, hardware, software, supplies,
materials and facilities that the Contractor furnishes to, or for the benefit
of, the Board and the Board's school sites and employees. The Contractor shall
perform the Services under the general supervision of the Chancellor or his/her
designee(s). The Contractor shall furnish, provide and deliver all of the
Services expressed in the "Proposal." The said Proposal is hereby incorporated
into, and made part of, this Agreement as "Attachment C." As contained herein
and/or the Proposal, any words of aspiration (such as, but not limited to,
"ideally," "hoped" and/or "hopefully") and/or expectation (such as, but not
limited to, "expected," "anticipated" and/or "if available") are hereby deemed
to be the Contractor's binding commitment. Furthermore, all else to the contrary
notwithstanding, the following terms, conditions and specifications shall govern
the Contractor's performance of the Services:
(A) The Contractor shall ensure that all its employees, subcontractors
and subcontractor employees comply with all terms, conditions and
specifications of this Agreement. The Contractor shall ensure that all its
employees and subcontractor personnel are present, punctual and prepared to
perform all the Services as scheduled by the Board. The Contractor shall
exercise due care and diligence to screen and select all managerial and
staff employees and subcontractors who provide any of the Services under
this Agreement, i.e., such personnel must be certified, competent
professionals. The Contractor shall furnish all necessary supervision of
its employed and subcontractor personnel.
(B) All personnel described heretofore in Paragraph 4(A) and the
Proposal are employees or subcontractors of the Contractor, and the
Contractor is alone responsible for their work and employment as well as
for their direction, discipline, compensation and benefits. Whereupon the
Chancellor or his/her designee(s) shall find that any individual(s) and/or
entity(ies) described heretofore in Paragraph 4(A) and/or the Proposal
shall have violated any provision(s) of this Agreement or shall have
rendered unsatisfactory performance of his/her/its duties and
responsibilities under this Agreement, the Contractor must adhere to, and
carry out, any and all instructions for suspension, removal and/or
replacement of the affected individual(s) and/or entity(ies). In cases of
suspension from contractual service of a given individual(s) and/or
entity(ies), the Contractor is hereby prohibited for the period of time
specified by the Chancellor or his/her designee(s) to utilize the affected
individual(s) and/or entity(ies) on any portion of any work to be performed
under this Agreement or any other Board agreement. In cases of removal from
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contractual service of a given individual(s) and/or entity(ies), the
Contractor is hereby prohibited permanently to utilize the affected
individual(s) and/or entity(ies) on any portion of any work to be performed
under this Agreement or any other Board agreement. If due process is
necessary before or after the suspension and/or removal of a given
individual(s) and/or entity(ies), the Board shall administer any and all
legally mandated procedures.
(C) Upon suspension or removal by the Chancellor or his/her
designee(s) of any personnel or entity(ies) described heretofore in
Paragraph 4(A) and the Proposal from contractual service, the Contractor
shall replace the affected individual(s) and/or entity(ies) within five (5)
school calendar days. Furthermore, the Contractor shall furnish notice
within three (3) school calendar days after receipt of notice from the
Chancellor or his/her designee(s) to the Board's contractual oversight
administrator of the identity of the replacement individual(s) and/or
entity(ies) and, thereafter within a reasonable time period, any other
relevant, non-confidential information about the replacement person(s)
and/or entity(ies) as requested by the Board's contractual oversight
administrator.
(D) In connection with the Services, the Contractor shall provide
quality software and hardware instruction, training, counseling, advice,
developmental assistance, technical support, expert perspectives, and
evaluation to include, without any limitation, lectures, seminars,
workshops, discussions, demonstrations, site visits and reviews in keeping
with high professional standards regarding the effective operation of the
IVC/DLS equipment, software and materials. The Contractor shall utilize
only qualified counselors, trainers, advisers, teachers, instructors,
administrators and other staff who are familiar with the professional needs
of school principals and teachers.
(E) For each BOE school or office where any Services are furnished,
the Contractor shall maintain and supply to the BOE upon request a separate
and complete "Site File." Each of the Services and/or each segment of the
Services supplied and/or provided to, for, or on behalf of, each school or
office shall be noted in the Site File with, as a minimum, the name and
location of the school or office, a detailed inventory of the equipment,
software and materials furnished, the name of each Board employee to, for,
on, or on behalf of, any Service(s) was performed (including dates, times,
attendance with specific notations of each Board employee's attendance),
and a summary of each Service rendered. The Chancellor or his/her
designee(s) may require additional types of entries and/or information to
be included in each Site File.
(F) At no cost or expense to the Board, the Contractor shall furnish
any and all equipment, supplies and materials necessary for the
Contractor's personnel and/or subcontractors to perform the Services
effectively and satisfactorily. The Contractor shall be solely responsible
for said equipment, supplies and materials plus all of the IVC/DLS
equipment, hardware, software, peripherals, supplies and materials
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regardless of the cause of any and all theft of, vandalism and/or other
damage to the same including, but not limited to, any and all negligent
acts and/or omissions of the Board and/or CSD10, any Board and/or CSD10
members, officers, managers, agents, employees, contractors, volunteers,
licensees, invitees, students, students' family members/guardians, as well
as the negligent, reckless and/or willful acts or omissions of individuals
not associated with the Contractor or the Board.<F4> Nevertheless, the
Board and CSD10 shall make reasonable efforts to secure the IVC/DLS
equipment from unauthorized access during such times when schools are in
regular session and/or offices are open for regular business.
(G) At any time that the Contractor shall not be using the IVC/DLS
equipment, software and materials for its proprietary educational programs
or classes, the Board/CSD10 may use the said IVC/DLS equipment, software
and materials for any legitimate public school and other educational
purpose as reasonably determined by the Chancellor or his/her designee(s).
The Board and CSD10 do hereby agree that only those Board and CSD10
employees who shall have been trained by the Contractor in the use of the
IVC/DLS equipment, software and materials shall operate the said equipment,
software and materials.
(H) Board Facilities. For any Services furnished to or for BOE
-----------------
personnel on Board of Education premises, the BOE shall ensure that
adequate space, as required by the nature of the Contractor's activity to
be conducted, shall be furnished at no cost to the Contractor at each
school site where the Services and/or other activities are to occur. This
provision shall not operate in derogation of the Contractor's obligation to
pay for custodial or other fees, as heretofore required at Paragraphs 2 and
3(C), in connection with the extended use operation of its proprietary
educational programs and/or classes outside of hours when BOE schools are
normally open for community use. Except for any hazardous materials and/or
wastes produced, brought and/or generated by the Contractor, the Board
shall ensure that each site is kept clean and free of any and all fire
and/or safety hazards. In accordance with the provisions hereinafter
expressed at Paragraph 4(K)(10), the Contractor shall be responsible for
the safe, lawful disposal of any and all hazardous materials and/or wastes
that it or its staff, consultants and subcontractors produce, bring and/or
generate in the course of the provision of any of the Services.
(I) In the performance of any and all Services, in its relations with
Board employees, and in its conduct of its proprietary educational programs
and classes, the Contractor shall give equal opportunity to all persons,
and the Contractor shall not discriminate for any reason based on race,
creed, color, sex, sexual orientation, age, national origin, ethnicity,
disability, marital status, religion or political beliefs/affiliations.
- -------------------
<F4> This sentence shall be construed in conjunction with the provisions
hereinafter expressed at Paragraphs 4(P)-(Q). The "negligent improper misuse
and/or abuse" of IVC/DLS facilities, as specified hereinafter at Paragraphs
4(P)-(Q), shall not be deemed for any reason whatsoever to be the same as or
similar to "theft of, vandalism and/or other damage to" IVC/DLS facilities. With
reference to IVC/DLS facilities, the term "other damage" shall include, but
shall not necessarily be limited to, fire, water leaks, electric power surges,
magnetic disturbances, cleaning fluid or other chemical spills, damage in the
course of unrelated felonious conduct, and so forth.
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(J) The Contractor shall cooperate with the Board to evaluate the
Services under this Agreement. The Contractor must permit the Board, its
agents, employees and/or volunteers to visit and observe the sites while
Services are being performed and to interview staff and distribute Board
questionnaires and other materials.
(K) Rules and Procedures for Construction-Related Work and the Repair
------------------------------------------------------------------
and Maintenance of Construction-Related Work. The Contractor does hereby
-----------------------------------------------
covenant, agree and warrant to comply in every respect with the rules,
regulations, policies and procedures hereinafter expressed for the
construction and installation of the equipment and fixtures expressed in
the Proposal, the repair and maintenance of such construction and
installation work, and other Services at each Board school site where the
Services are to be performed.
(1) The BOE Division of School Facilities (hereinafter expressed
as "DSF") shall have the full right, power and authority to establish,
maintain, administer and interpret all Board rules, regulations,
policies and procedures to be followed by the Contractor in the
performance of all Services that directly and/or indirectly involve
any construction, alteration, installation, maintenance and repair
work and/or activities in, on and/or about the Board's school
buildings and grounds. Furthermore, DSF shall oversee and approve the
Contractor's performance of all construction, alteration,
installation, maintenance and repair aspects of the Services to be
furnished, supplied and/or performed in, on and/or about BOE school
buildings and grounds. The Contractor shall be bound to adhere in
every respect to all of the rules and procedures established by DSF
for any and all construction, installation, maintenance and repair
activities in, on and/or about the Board's school buildings and
grounds. DSF shall have the sole right, power, authority and
discretion to update, revise, add, delete, amend or otherwise change
any and all such rules and procedures at any time during the Original
and/or Additional Periods upon five (5) school calendar days advance
written notice to the Contractor.
(2) James F. Lonergan, Director of DSF's Office of Building
Services, or his successor as named by the Chancellor or his/her
designee(s) with written notice to the Contractor, and/or Mr.
Lonergan's designee(s), shall be the DSF liaison with the Contractor
and the Contractor's employees and subcontractors. All correspondence
and other information which the Contractor and/or the Contractor's
employees and subcontractors shall or may send to Mr. Lonergan shall
be addressed to him at the Board of Education of the City of New York,
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Division of School Facilities, Office of Building Services, 28-11
Queens Plaza North, Room 540, Long Island City, New York 11101;
telephone number (718) 391-6530; and, fax number (718) 391-6020;
e-mail address [email protected].
(3) Before starting any Services pertaining to initial and/or
supplemental construction, alteration and/or installation work, any
reconstruction, re-alteration and/or re-installation work, and/or any
repair and maintenance work at each given school site and/or video
production studio, the Contractor must furnish DSF a fully detailed,
distinct Scope of Work for each such site and/or studio, each of which
Scope of Work shall be in a form reasonably satisfactory to DSF. Each
Scope of Work shall include, but not necessarily be limited to,
drawings, schematics, and fully articulated and detailed written plans
including, but not necessarily limited to, materials, labor and
methods of construction, alteration, installation, reconstruction,
re-alteration and/or re-installation in such formats and with such
content as DSF shall reasonably require. DSF shall have sole,
reasonable discretion to approve each Scope of Work submitted by the
Contractor for the Services to be performed at each BOE school site.
The Contractor may not commence Services pertaining to initial and/or
supplemental construction, alteration and/or installation work or
reconstruction, re-alteration and/or re-installation work any given
school site until receipt of written approval of the applicable Scope
of Work from DSF. At the same time, neither DSF nor the Contractor
shall unreasonably delay the approval process in any negotiations for
modifications, amendments, revisions, additions, deletions or other
changes to each Scope of Work submitted by the Contractor.
(4) The Board's "Instructions to Bidders for Requirement and
Service Contracts" form (hereinafter expressed as "R/S ITB") is hereby
incorporated into, and made part of, this Agreement as "Attachment D."
The R/S ITB's application to the Agreement is hereby limited to
Paragraphs 5A, 10, 16, 21, 22, 24, S.2, S.3, S.5, S.6, S.7, S.8, S.9,
S.10, S.11, S.12, S.13, S.14, and S.15 contained in said R/S ITB. The
Contractor must comply with all applicable terms, conditions and
specifications contained in the R/S ITB in the performance of all
Services involving initial and/or supplemental construction,
alteration and/or installation work, any reconstruction, re-alteration
and/or re-installation work, and/or any repair and maintenance work at
any given BOE site.
(5) The BOE's "RS-29 Requirement/Service Contract" form
(hereinafter expressed as "RS-29") is hereby incorporated into, and
made part of, this Agreement as "Attachment E." The entire RS-29 is
hereby deemed to be applicable to this Agreement except for the
following: the portions of page 1 containing blank spaces for the
entry of information; Article 2; Article 2A; the third sentence of
Article 40; Subparagraphs 1-4 of Article 40; Article 43A; Article 45;
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Article 46; Article 48; and, the executory portions of page 43.
Wherever mentioned in the RS-29, (a) the term "bidder" shall mean
"proposer" and shall denote the Contractor, (b) the term "bid(s)"
shall mean the Proposal, and (c) the term "specifications" as
contained in Article 12 and elsewhere in the RS-29 where it shall have
the same connotation shall mean the Proposal. The Contractor must
comply with all applicable terms, conditions and specifications
contained in the RS-29 in the performance of all Services involving
initial and/or supplemental construction, alteration and/or
installation work, any reconstruction, re-alteration and/or
re-installation work, and/or any repair and maintenance work at any
given BOE site.
(6) The Board's "Letter Agreement with Construction Contractors"
form (hereinafter expressed as "LACC Form") is hereby incorporated
into, and made part of, this Agreement as "Attachment F." The
application of the LACC Form to this Agreement is hereby limited to
the following: the first and second unnumbered, unbulleted paragraphs
on page 2; numbered Paragraphs 1-3 on page 2; the first and second
unnumbered paragraphs on page 3; numbered Paragraphs 1-5 on page 3;
numbered Paragraphs 9-10 on page 5; and, all material on page 7. The
Contractor must comply with all applicable terms, conditions and
specifications contained in the LACC Form in the performance of all
Services involving initial and/or supplemental construction,
alteration and/or installation work, any reconstruction, re-alteration
and/or re-installation work, and/or any repair and maintenance work at
any given BOE site.
(7) In the event of any special circumstances concerning any
Services involving construction, alteration and/or installation work
or any reconstruction, re-alteration and/or re-installation work at
any given school site, the Contractor must agree and comply with all
additional, deleted, amended, revised and/or otherwise changed
instructions affecting the provisions in the R/S ITB, RS-29 and/or
LACC Form, as determined in the sole, reasonable discretion of DSF.
(8) Where a given BOE site(s) is under the direct care custody
and control of the Board of Education, all approvals for Services
pertaining to construction, alteration and/or installation work or any
reconstruction, re-alteration and/or re-installation work shall
involve only the Chancellor, his/her designee(s) and/or DSF. Where the
Board leases and/or licenses a site(s) where any Services are to be
rendered, the Contractor does hereby acknowledge, stipulate and agree
that the lease(s) and/or license agreement(s) covering the affected
BOE site(s) shall control and govern the Contractor's Services and
activities at the affected BOE site(s). The Contractor does hereby
acknowledge, stipulate and agree that most, if not all, BOE leases and
license agreements contain provisions requiring prior approval by the
landlord and/or licensor for any and all Services involving
construction, alteration and/or installation work or any
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reconstruction, re-alteration and/or re-installation work on the
leased and/or licensed premises. The Contractor shall make every
reasonable effort to cooperate with the Board to secure any and all
necessary prior approvals from landlord and/or licensors including,
but not necessarily limited to, supplying copies of the Scope of Work
and any and all drawings, schematics, and fully articulated and
detailed written plans including, but not necessarily limited to,
materials, labor and methods of construction, alteration,
installation, reconstruction, re-alteration and/or re-installation in
such formats and with such content as any given landlord(s) and/or
licensor(s) shall reasonably require. The Contractor shall comply
fully and faithfully with any and all special instructions by a given
landlord(s) and/or licensor(s) for the performance of Services
involving construction-related work at any given leased and/or
licensed BOE site(s). Furthermore, the Contractor shall allow each
affected landlord and/or licensor to inspect the Contractor's work at
each affected leased and/or licensed BOE site(s).
(9) The Contractor and its employees, subcontractors and
subcontractor employees shall perform all Services involving initial
construction, alteration and/or installation work and/or any
reconstruction, re-alteration and/or re-installation work at each
given school site in the least physically destructive and
pedagogically intrusive manner reasonably possible. In particular, the
Contractor's attention is drawn to BOE rules, regulations, procedures
and policies regarding asbestos and lead paint in school buildings as
well as fire safety and other safety aspects of school buildings,
which the Contractor shall follow in every respect. The Contractor
shall familiarize itself and its employees, subcontractors and
subcontractor employees with all applicable BOE rules, regulations,
procedures and policies regarding asbestos and lead paint in school
buildings as well as fire safety and other safety aspects of school
buildings. Upon the Contractor's written request, DSF shall furnish
copies of all applicable BOE rules, regulations, procedures and
policies.
(10) Hazardous and Other Wastes. At each BOE site, the Contractor
--------------------------
shall furnish and utilize adequate apparatuses to render any and all
wastes generated during the course of the provision of the Services
capable of disposal through conventional means by neutralizing any and
all hazardous substances contained therein, in accordance with all
applicable Federal, State, City of New York and BOE laws, rules,
regulations, policies and guidelines. If any such wastes such as, but
not limited to, friable asbestos, are not capable of being neutralized
in a cost effective manner, the Contractor shall arrange for disposal
in a manner that both conforms with all applicable Federal, State,
City of New York and BOE laws, rules, regulations, policies and
guidelines and minimizes any potential for exposure to such wastes by
BOE employees, pupils and invitees. If the Board possesses the
capability and funding to dispose of any such wastes, the Board shall
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have the option, on a case-by-case and site-by-site basis, to arrange
for the disposal of all or any portion of any such wastes. If the
Board elects to exercise this option for any one or more instances at
any one or more BOE sites, DSF shall provide written notification to
the Contractor to release the Contractor from responsibility for
disposal in the given instance(s) at the given school site(s). Any
release from responsibility for waste disposal shall apply only to the
instance(s) and the BOE site(s) specifically expressed in each such
written notification. Until receipt of each such written notice from
the Board, if any, the Contractor shall remain liable to comply with
all waste disposal requirements expressed in this Agreement.
(11) Contractor's Performance of Construction-Related Work. The
-------------------------------------------------------
following terms, conditions and specifications shall given the
Contractor's performance of all Services involving initial and/or
supplemental construction, alteration and/or installation work or
reconstruction, re-alteration, re-installation, repair and/or
maintenance work at each given BOE site.
(a) The Board, at its reasonable discretion, shall have the
right to inspect the progress of all initial and/or supplemental
construction, alteration and/or installation work or
reconstruction, re-alteration, re-installation, repair and/or
maintenance work at each BOE site and will submit any objections
in writing promptly following such inspections.
(b) The work shall be substantially complete when each and
all of the following conditions shall exist or shall have been
fulfilled:
(i) the work, including all major items of initial
and/or supplemental construction, alteration, installation,
re-construction, re-alteration, re-installation, repair
and/or maintenance which the Contractor must perform, as set
forth in the Proposal, have been substantially but not
entirely complete and all building and utility systems are
operative and in normal working order; and,
(ii) all governmental permits, approvals and
certificates, as and if applicable, have been obtained by
the Contractor, including all supporting certificates and/or
documentation pertaining thereto, have been issued; and,
(iii) the uncompleted work does not unduly interfere
with the Board's ability to use the affected BOE site for
normal school purposes; and,
(iv) the premises around each work site have been
cleaned as follows: the interior shall be broom clean and
the sidewalks, curbs, driveways, grounds and passageways,
adjoining and/or appurtenant to each affected BOE site shall
be free and clear of dirt, debris, rubbish or any other
obstruction.
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(c) When the Contractor believes that the conditions set
forth in Paragraph 4(K)(11)(b)(i-iv) have been satisfied at each
given BOE site, the Contractor shall submit to the Board in
writing a statement that, in the Contractor's opinion, all the
work at a given school site has been substantially completed and
that the Contractor has fulfilled all the requirements of
Paragraph 4(K)(11)(b)(i-iv) (hereinafter expressed as "notice of
substantial completion"). Further, the Contractor shall compile
and submit to the Board for its review, together with said
notice, a punch list of all uncompleted minor items of the work
at each such BOE site and the expected date of completion of such
items.
(d) The Board shall inspect each BOE site within twenty (20)
business days of receipt of written notice of substantial
completion and shall report in writing to the Contractor either
(i) the Board agrees that Paragraph 4(K)(11)(b)(i-iv) has been
fulfilled and that the work at a given BOE site is substantially
complete, or (ii) the Board disagrees with the Contractor, in
which case the Board shall specify in writing in what ways the
Contractor has failed to fulfill the requirements of Paragraph
4(K)(11)(b)(i-iv). In such event, the Contractor shall
immediately commence correction(s) of the problem(s) and
diligently proceed with continuity to complete said work
(hereinafter expressed as "corrections"). The Contractor shall
notify the Board in writing when said corrections are complete
(hereinafter expressed as "notice of corrections"). The Board
shall have ten (10) business days to inspect corrections and
raise objections in writing (hereinafter expressed as "response")
to the Contractor's notice of corrections. The Board retains the
right to inspect the premises at any time during this process.
The process of notice, response and corrections at each BOE site
may be repeated until the Board agrees that the work is
substantially complete. If the Board fails to respond to the
Contractor's notice that corrections have been completed and the
work at each given BOE site are substantially complete, such work
will be deemed by the parties to be substantially complete, as of
the date of the Contractor's most recent notice of corrections
plus ten (10) business days.
(e) The Board shall have eight (8) weeks after substantial
completion of the work at each given BOE site to add such minor
items as it deems to be uncompleted to the punch list prepared by
the Contractor. The Contractor shall commence and diligently
complete all uncompleted items listed on such punch list.
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(f) The Contractor does hereby covenant that the work to be
performed by the Contractor and all parts thereof including, but
not limited to, masonry, drilling, electrical equipment and
systems, installations and fixtures, pipings and fittings shall
be new and constructed in a good workmanlike manner and shall be
in good working order and condition. The Contractor does hereby
warrant the masonry, drilling, installation, fixtures, electrical
systems, etc., all parts thereof, and all work performed by the
Contractor to be in good working order for one year after
substantial completion, except damage caused by the improper use
by the Board. If warranties or guarantees covering the Services
are available from suppliers, manufacturers, or builders, and are
equal to or longer in duration than the time specified herein,
the Contractor shall secure such warranties or guarantees for the
Board's benefit. The Contractor shall deliver to the Board all
warranties or guarantees from its subcontractors, suppliers and
other sources within thirty (30) days of substantial completion
of the work at each give school site or at such other time during
the course of the Services as the Chancellor, his/her designee(s)
and/or DSF shall specify in writing, such delivery to be a
condition precedent to the Contractors use of each given school
site.
(g) The Contractor shall obtain all permits, special permits
and variances necessary for any construction-related work
specified heretofore and in the Proposal; provided, however, the
Board shall be responsible to obtain such permits, if any, as
shall be required for the operation of equipment subsequent to
final completion of the work. Upon written request to DSF, the
Board shall provide reasonable assistance to the Contractor to
obtain any necessary permits, special permits and/or variances.
(L) Contractual Oversight Administrator for Each School/Office Site
------------------------------------------------------------------
for Inspection and Approval of Non-Construction Related Services. The
---------------------------------------------------------------------
Chancellor or his/her designee(s) shall appoint at least one contractual
oversight administrator for each school or other location where Services
are to be performed and/or delivered. For each appointment of a contractual
oversight administrator(s) for each such school or other location, the
Chancellor's designee(s) shall arrange for the completion of the
"Contractual Oversight Administrator Appointment Form," which is hereby
made a part of, and incorporated into, this Agreement as "Attachment G."
Upon completion of each Contractual Oversight Administrator Appointment
Form, the Chancellor or his/her designee(s) shall (1) check the appropriate
box for approval and place his/her signature on the appropriate line for
approval, (2) make a copy of the form for the CSD10 contract file, (3) make
a copy of the form and transmit it to the Contractor for the Contractor to
place in the Site File, and (4) return the original form to the school
principal.
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(M) Inspection and Approval of Audio, Video, Computer and
----------------------------------------------------------------
Telecommunications Hardware, Software, Peripherals and Other Equipment. The
----------------------------------------------------------------------
Board may withhold acceptance of, or reject, any item(s) of audio, video,
computer and telecommunications hardware, software, peripherals and other
equipment and Services (herein occasionally expressed as "item[s]") to be
delivered to, and installed at, each BOE site that is found, upon
inspection, not to conform to the terms, conditions and specifications of
this Agreement. The exercise by the Board of the right of inspection shall
in no way whatsoever be deemed as a waiver by the Board of any warranties
or of the Contractor's obligation to deliver items that conform to the
terms, conditions and specifications of this Agreement.
(1) For each item of audio, video, computer and
telecommunications hardware, software, peripherals and other equipment
and Services to be delivered to, and installed at, each BOE site, the
CSD10 site's contractual oversight administrator(s) shall perform an
inspection to ascertain the complete and operable nature of such
goods. The Contractor shall cooperate fully with each contractual
oversight administrator by furnishing and/or performing at least, but
not necessarily limited to, the following: (a) a copy(ies) of an
inventory check list of all items to be delivered to each affected
school and/or studio site including, but not necessarily limited to,
each piece of equipment, each piece of electrical wiring needed to
accompany each piece of equipment, instruction manuals, each piece of
software, each warranty certificate, and so forth, which the
contractual oversight administrator(s) shall promptly certify in
writing to the Chancellor's designee(s) as complete and in apparent
good working order; (b) a clear estimation of where, when and how the
entire system at each school shall be installed and made fully
operable, which the contractual oversight administrator(s) shall
promptly confirm in writing to the Contractor with a copy to the
Chancellor's designee(s); and, (c) a complete operational
demonstration after the Contractor has finished the complete
installation, programming and set up of the system(s) at each BOE
site, the completion and satisfactory/unsatisfactory nature and extent
of which the contractual oversight administrator(s) shall promptly
certify in writing to the Chancellor's designee(s).
(2) The Contractor shall have five (5) business days from receipt
of each contractual oversight administrator's written confirmation, as
expressed in the immediately preceding paragraph, to furnish in
writing to the Chancellor's designee(s) any corrections and/or
clarifications to each contractual oversight administrator's said
written confirmation. The Contractor may not begin to use any given
school site until the following shall have occurred: (a) each
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contractual oversight administrator shall have sent a copy of the
inventory check list for each given BOE site to the Chancellor's
designee(s) with a written certification that every item of equipment
has been delivered in complete and good working order; (b) the
Chancellor's designee(s) shall have received a copy of each
contractual oversight administrator's written confirmation of the
Contractor's installation procedure estimation; and, (c) the
Chancellor's designee(s) shall have received a copy of each
contractual oversight administrator's written certification that the
Contractor's operational demonstration of the system(s) at each BOE
site has been complete and satisfactory.
(3) Each item and/or component part thereof that is customarily
labeled and/or identified must have securely affixed thereto the
original, unmutilated label(s) and/or marking(s) of the manufacturer,
distributor and/or other supplier, as applicable. The Contractor's
failure and/or refusal to comply with this requirement shall be deemed
to be sufficient cause for rejection of the affected item(s) and/or
component part(s) thereof. In cases where a label(s) and/or marking(s)
are required by any applicable law, rule, regulation, policy and/or
guideline, such label(s) and/or marking(s) must be affixed to each
item and/or component part thereof--even if such labeling and/or
marking necessitates the repetition of such labeling and/or marking
upon numerous identical items and/or component parts--delivered under
this Agreement.
(N) Deliveries. Except where otherwise stipulated in this Agreement,
----------
the Contractor shall make deliveries only between the hours of nine o'clock
in the forenoon (9:00 A.M.) and four o'clock in the afternoon (4:00 P.M.)
on BOE school calendar days, except in cases of deliveries to the CSD10
offices when the days shall include all BOE business days. At its option,
the Board may consent to receive deliveries during hours or on days outside
those expressed in the immediately preceding sentence, provided that such
permission is expressed in writing and furnished reasonably in advance of
the date and time of delivery. The Contractor must obtain verification of
delivery of each item or component part thereof from the appropriate
contractual oversight administrator(s), and no deliveries shall be deemed
to have been received by the BOE unless the packing documents or shipping
receipt accompanying each such item or component part thereof shall have
been signed by the said appropriate contractual oversight administrator(s).
(O) Product and Service Warranties. At the time each item of audio,
--------------------------------
video, computer and telecommunications hardware, software, peripherals and
other equipment and Services is delivered to, furnished to, and/or
installed at each BOE site, the Contractor shall obtain, transfer and
deliver to the Board of Education all warranties and guarantees from
suppliers, subcontractors and/or materialmen with respect to each said item
and/or component part thereof. The Contractor shall complete each warranty
and/or guarantee application or registration form in such a manner so that
each such warranty and/or guarantee shall inure to the benefit of the Board
of Education. Furthermore, the Contractor does hereby warrant and guarantee
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that, throughout the Term (hereinafter expressed as "Warranty Period"),
each such item and component part thereof shall be free from any defects
and/or faulty workmanship and, under normal use and service, shall perform
in accordance with the terms, conditions and specifications expressed in
the Proposal, any other publication(s) issued by the Contractor with
respect to any such items and/or component parts thereof, and/or any
publication issued by the supplier, developer and/or manufacturer of any
such items and/or component parts thereof. For all intents and purposes
under this Agreement, the Warranty Period for each item of audio, video,
computer and telecommunications hardware, software, peripherals and other
equipment and Services to be delivered to, furnished to, and/or installed
at each BOE site shall commence on the date that the Chancellor's
designee(s) shall receive each contractual oversight administrator's
written certifications as heretofore required.
(P) Product and Services Support, Maintenance and Repair. During the
-----------------------------------------------------
Warranty Period, the Contractor shall be responsible to supply, deliver,
furnish, provide, render, equip, perform, install and otherwise fulfill the
requirements of the continued support for each item of audio, video,
computer and telecommunications hardware, software, peripherals and other
equipment and Services to be delivered to, furnished to, and/or installed
at each school or office site. The term "continued support" is hereby
defined to include, but shall not be limited to, maintenance, repair and/or
replacement of each item and/or component part thereof, ongoing user
training, and the installation and/or incorporation of state-of-the-art
improvements and/or engineering, as developed, into and for each item of
audio, video, computer and telecommunications hardware, software,
peripherals and other equipment and Services to be delivered to, furnished
to, and/or installed at each school or office site. The Contractor shall
furnish such continued support, as maintenance, throughout the Term
including, but not limited to, the Original Period, the Additional Periods,
if any, and any further renewal and/or extension periods of this Agreement.
The Contractor shall make available to the Board maintenance and ongoing
technical support for each item of audio, video, computer and
telecommunications hardware, software, peripherals and other equipment and
Services to be delivered to, furnished to, and/or installed at each school
or office site. The Contractor shall itself maintain, or shall have access
to, an adequate inventory or stock of each item and component parts thereof
to make necessary repairs and/or replacements of such items and/or
component parts thereof within seventy-two (72) hours of receipt of written
notice from the Board pertaining to a problem. Paragraph 2 to the contrary
notwithstanding, CSD10 shall be responsible to pay for any continued
support during the Warranty Period, which continued support shall be
occasioned by the negligent improper misuse and/or abuse of the IVC/DLS
equipment by BOE employees, students, volunteers and/or invitees that shall
render any warranty unenforceable. The preceding sentence shall not apply
to repairs and/or replacements occasioned by normal wear and tear.
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(Q) Repair and Maintenance of Hardware, Peripherals and Other
-----------------------------------------------------------------
Equipment after the Warranty Period. After the expiration of the Warranty
------------------------------------
Period for any given item or component part thereof, the Contractor shall
provide maintenance and repair service for each item of audio, video,
computer and telecommunications hardware, software, peripherals and other
equipment and Services delivered to, furnished to, and/or installed at each
BOE site. Such repair and maintenance service is more fully described in
the Proposal. As heretofore expressed at Paragraph 2, the Contractor shall
bear any and all costs for repair and maintenance service charges at its
sole cost and expense, except that CSD10 shall be responsible to pay for
any repairs after the Warranty Period, which repairs shall be occasioned by
the negligent improper misuse and/or abuse of the IVC/DLS equipment by BOE
employees, students, volunteers or invitees. The exception contained in the
preceding sentence shall not apply to repairs and/or replacements
occasioned by normal wear and tear.
(R) With respect to all of the continuing support, maintenance, repair
and replacement provisions contained in this Agreement, the Contractor does
hereby stipulate and agree that all of the IVC/DLS audio, video, computer
and telecommunications hardware, software, peripherals and other equipment
shall experience extensive use by both CSD10 and the Contractor under
normal circumstances. Therefore, the Contractor does hereby stipulate and
agree it will be ordinary, reasonable and necessary in the regular course
of its performance of this Agreement for the Contractor to provide regular
periodic continuing support, maintenance, repair and replacement of all the
IVC/DLS audio, video, computer and telecommunications hardware, software,
peripherals and other equipment throughout the Term.
(S) Training Services. For all general and particular purposes, the
-----------------
following terms, conditions and specifications shall govern the Contractor
provision of training under this Agreement.
(1) At no cost to the Board, the Contractor shall provide first
quality in-service training workshops, courses, lectures,
demonstrations and materials to forty (40) CSD10 administrative,
pedagogical and support employees throughout the first year that each
item of audio, video, computer and telecommunications hardware,
software, peripherals and other equipment and Services is in use at
school and other BOE sites. The Contractor shall make available such
in-service training workshops, courses, lectures, demonstrations and
materials on a schedule to be set at the reasonable discretion of the
Chancellor's designee(s). At its sole option, the Contractor may elect
at any time during the Term to offer in-service training workshops,
courses, lectures, demonstrations and materials to additional CSD10
administrative, pedagogical and support employees. Each of the
Contractor's training courses shall be not more than sixteen (16)
fours in duration.
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(2) During the Term beyond the first year period, the Contractor
shall furnish such BOE employee training as necessary to ensure that a
minimum of forty (40) BOE/CSD10 employees are proficient in the
effective operation of the Contractor's equipment, materials and
supplies.
(3) In the event that the Contractor shall fail and/or refuse to
comply with the training requirements specified in this Agreement, the
Chancellor or his/her designee(s) for general contractual oversight
may, at his/her option, cancel the balance of the Term upon sixty (60)
days advance written notice to the Contractor. If the Chancellor or
his/ her designee(s) for general contractual oversight shall exercise
the option in the preceding sentence, the Contractor shall have the
option within sixty (60) calendar days from receipt of such
cancellation to retain all right, title and interest in all of the
IVC/DLS equipment that it shall have installed in any BOE school site
(except for the IVC/DLS equipment installed at CSD10 headquarters) and
to remove such equipment from BOE school sites at its sole cost and
expense, which cost and expense shall include the complete repair and
restoration of all affected BOE school premises to their good
conditions as if the Contractor's occupancy shall have never occurred.
If the Contractor shall fail and/or refuse to perform the repair and
restoration work expressed in the preceding sentence to the reasonable
satisfaction of the Chancellor or his/her designee(s), the Contractor
does hereby agree and warrant that it shall not remove any of the
IVC/DLS equipment that it shall have installed any BOE school sites;
and, the Contractor does hereby stipulate and agree that, upon its
departure from an affected BOE school site(s) without having effected
the said satisfactory repair and restoration work, all right, title
and interest to the IVC/DLS equipment located in all BOE school sites
shall pass from the Contractor to the BOE without the necessity of any
further action by the parties.
(T) Transfer of Ownership upon Expiration of the Term. At the expiration of
the fourth Additional Period of the Term, all right, title and interest in the
IVC/DLS equipment, software, peripherals, materials and supplies and all other
goods, commodities and supplies that the Contractor shall have installed at BOE
school, office or other locations shall transfer from the Contractor to the
Board of Education, and the Board of Education shall be the sole owner of all
such IVC/DLS equipment, software, peripherals, materials and supplies and all
other goods, commodities and supplies. If the Contractor shall add and/or
upgrade any units of IVC/DLS equipment, software, peripherals, materials and
supplies and/or replace any of the same with enhanced, modernized and/or updated
units of at least the same utility, then all right, title and interest in the
affected units shall be and remain in the Contractor until the expiration of the
fifth Additional Period of the Term, whereupon all right, title and interest in
the affected units of IVC/DLS equipment, software, peripherals, materials and
supplies shall transfer from the Contractor to the Board of Education, and the
BOE shall be the sole owner of all such IVC/DLS equipment, software,
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peripherals, materials and supplies. If for any reason whatsoever the Contractor
shall materially default in its performance of this Agreement or shall cease
educational operations at the BOE sites,<F5> all right, title and interest in
the IVC/DLS equipment, software, peripherals, materials and supplies and all
other goods, commodities and supplies that the Contractor shall have installed
at BOE school, office or other locations shall transfer from the Contractor to
the Board of Education, and the Board of Education shall be the sole owner of
all such IVC/DLS equipment, software, peripherals, materials and supplies and
all other goods, commodities and supplies. If for any reason the right, title
and interest in any of the IVC/DLS equipment, software, peripherals, materials
and supplies shall not transfer from the Contractor to the BOE at the expiration
or other termination of this Agreement, the Contractor shall have the option
within ninety (90) calendar days of any such expiration or other termination of
this Agreement to remove the same at its sole cost and expense. If the
Contractor shall elect to remove any such IVC/DLS equipment, software,
peripherals, materials and supplies, then the Contractor must repair and restore
any affected BOE real and personal property to its good, serviceable condition
as if the Contractor's installation shall have never occurred. If the Contractor
shall fail and/or refuse to perform the repair and restoration work expressed in
the preceding sentence to the reasonable satisfaction of the Chancellor or
his/her designee(s), the Contractor does hereby agree and warrant that it shall
not remove any of the IVC/DLS equipment that it shall have installed any BOE
school sites; and, the Contractor does hereby stipulate and agree that, upon its
departure from an affected BOE school site(s) without having effected the said
satisfactory repair and restoration work, all right, title and interest to the
IVC/DLS equipment located in all BOE school sites shall pass from the Contractor
to the BOE without the necessity of any further action by the parties.
(5) SPECIAL PROVISIONS TO ELIMINATE FEDERAL, STATE AND LOCAL SALES, EXCISE
-----------------------------------------------------------------------
AND USE TAX PAYMENTS. The Board and the Contractor do hereby stipulate,
- ----------------------
acknowledge and agree that the Board of Education is a municipal corporation as
defined under the Education Law and the General Construction Law of the State of
------------- ------------------------
New York, and that the BOE is thereby exempt from the payment of Federal, State
and/or local sales, excise and/or compensating use taxes, as provided under the
U.S. Internal Revenue Code and the Tax Law of the State of New York. Therefore,
- -------------------------- -------
the Contractor shall have the opportunity to eliminate all payments of such
taxes for otherwise taxable goods, supplies, equipment, services, and so forth
that the Contractor shall purchase, lease and/or otherwise lawfully acquire in
the performance of the Services under this Agreement.
- -------------------
<F5> The phrase "...or shall cease educational operations at the BOE sites,"
shall not include any cessation of educational operations arising from a
reduction(s) or elimination(s) of funding to the BOE that curtails or eliminates
a Beacon School(s). In addition, the said phrase shall not include any act(s) of
commission by the BOE and/or CSD10 that causes or allows the cessation of the
Contractor educational operations at the BOE sites.
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(A) The Board of Education does hereby appoint, designate and approve
the Contractor to be and to act as the Board's official agent for the
purchase, lease and/or other forms of lawful acquisition of any and all
goods, commodities, materials, supplies, equipment, hardware, software,
services, and so forth that the Contractor shall reasonably and ordinarily
need to perform the Services under this Agreement. It is intended between
the parties that this agency appointment shall be limited strictly to the
purposes of the Contractor's performance of the Services under this
particular Agreement and for no other purposes. In furtherance thereof, the
Board shall furnish to the Contractor a letter on official BOE letterhead
stationery of the said agency appointment that the Contractor shall utilize
in all of its purchases, leases and/or other forms of lawful acquisition
from the Contractor's suppliers, sellers, lessors, lenders, consultants,
subcontractors and other sources. The said letter of official agency
appointment is hereby made a part of, and incorporated into, this Agreement
as "Attachment H."
(B) In the event that any of the Contractor's subcontractors shall
make any purchases, leases and/or other forms of lawful acquisition on the
Contractor's behalf pursuant to this Agreement, the Contractor may require
such subcontractors to use their best reasonable efforts to seek and obtain
the appropriate sales, excise and/or use tax exemptions. In furtherance
thereof, the Board shall furnish to the Contractor, upon written request, a
letter on official letterhead stationery of the purchasing agency
appointment of each such subcontractor and/or subcontractor employee that
the said person and/or entity shall utilize in all of his/her/its
purchases, leases, bartering, borrowing and/or other forms of lawful
acquisition from any affected suppliers, sellers, lessors, lenders and
other sources.
(C) Whereupon the Contractor shall need such an agency appointment
letter(s) for any of its and/or subcontractor employees and/or whereupon
the Contractor shall need any assistance, advice or modification(s)
regarding its agency appointment letter(s), the Contractor shall provide
written notice of such request to Michael P. Coneys, Esq., Attorney, (or to
his successor), Board of Education of the City of New York, Office of Legal
Services, 110 Livingston Street, Room 920, Brooklyn, New York 11201-5068;
telephone (718) 935-3608; fax (718) 935-3625; e-mail
[email protected].
(6) OWNERSHIP OR RELATIONAL CHANGES. Subsequent to execution of this
----------------------------------
Agreement, the Contractor shall be obligated to notify the Chancellor or his/her
designee(s) in writing within ten (10) calendar days in the event of a change(s)
in any of the following: (A) beneficial owners (including, without limitation,
parent and over-parent entities), limited or general partners, silent or
apparent partners, major shareholders (more than ten percent stock ownership),
elected or appointed officials, officers and/or directors of the Contractor; (B)
subsidiary and/or affiliated entities that are directly or indirectly involved
in the performance of this Agreement; (C) consultants, subconsultants and/or
subcontractors directly or indirectly involved in the performance of this
Agreement; (D) transfer payees or payment assignees; and, (E) any relationship
that might involve or create a conflict of interest.
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(7) CONTRACTOR'S REPORTS. The Contractor shall comply fully with all Board
---------------------
requests for fiscal, programmatic, progress, and any and all other types of
reports. Progress reports shall include, but shall not be limited to, the names
and numbers of school sites served, the type(s) of service(s) provided, the
date(s) of the service(s), attendance and, where applicable, achievement data.
The Contractor shall provide all reports in the format(s) and frequency(ies)
reasonably determined by the Chancellor or his/her designee(s).
(8) INSURANCE. The following terms, conditions and specifications shall
---------
prescribe and govern the Contractor's obligations with respect to insurance for
all general and particular intents and purposes under this Agreement, all else
to the contrary notwithstanding.
(A) The Contractor shall obtain all required insurance coverage from
insurers licensed by the New York State Superintendent of Insurance to do
business in New York State. Not later than thirty (30) days after the date
of execution of this Agreement and before the start of any of the Services
under this Agreement, the Contractor shall submit to CSD10 evidence of the
insurance specified herein together with all supporting documentation
reasonably deemed necessary by the Chancellor or his/her designee(s). The
Contractor shall arrange with its carrier(s) to have the Board and CSD10
appear as additional insured parties on every policy and certificate of
insurance for all required coverage. The Contractor shall not obtain or use
any insurance policy(ies) or contract(s) for purposes of this Agreement
that contains any endorsement exclusions relating to an additional
insured's negligence, relating to the maintenance, use and operation of an
additional insured's realty or personalty, or relating to any other
activities by an additional insured that arise from, or in the context of,
this Agreement. The Contractor shall transmit one (1) copy each of all
insurance policies and certificates of insurance to the Board of Education
of the City of New York, Community School District 10, One Fordham Plaza,
Bronx, NY 10458, Attention: Ms. Irma Zardoya. The Board's receipt of such
policies and certificates shall be a condition precedent to any payment by
the Board to the Contractor under this Agreement. Furthermore, the
Contractor shall transmit an informational copy of this Agreement to its
insurance carrier(s) together with a cover letter(s)--the cover letter(s)
shall identify the Contractor's insurance policy(ies) and/or account
number(s)--that alerts and informs the carrier(s) of the existence of this
Agreement and the particular insurance provisions contained herein. The
Contractor shall maintain the hereinafter prescribed levels of insurance
coverage throughout the Term of this Agreement (including, but not limited
to, original, additional, renewal and extension periods).
(1) The Contractor shall obtain comprehensive general liability
insurance coverage for property damage and personal injury (including,
Page 28
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BOARD OF EDUCATION OF THE CITY OF NEW YORK
CSD10 VIDEO CONFERENCING & TELECOMMUNICATIONS SERVICES AGREEMENT
----------------------------------------------------------------
but not limited to death, sickness, disease and impairment), caused
directly or indirectly by any negligent act(s) of commission or
omission of the Contractor and/or the Contractor's agents, servants,
employees, owners (including, without limitation, parent and
over-parent entities), partners (including, without limitation,
general, limited, silent and apparent partners), directors, officers,
elected or appointed officials, members, subcontractors, subcontractor
employees, volunteers, invitees, licensees, designees, assigns or any
other representatives. The liability limit for personal injury
(including, but not limited to, death, sickness, disease and
impairment) shall be not less than One Million United States Dollars
($1,000,000.00) per occurrence, and the liability limit for property
damage shall be not less than Two Hundred Fifty Thousand United States
Dollars ($250,000.00) per occurrence.
(2) The Contractor shall obtain employer's liability insurance
with coverage limits of not less than One Million United States
Dollars ($1,000,000.00) per occurrence.
(B) Worker's Compensation Insurance. The Contractor shall maintain
---------------------------------
Worker's Compensation insurance in the manner and amount(s) as prescribed
by law. The Contractor shall not begin any services and/or work in, on
and/or about the Board's real property until having filed a valid
certificate of insurance for Worker's Compensation coverage with the
Chancellor's designee(s).
(C) Required Rider Provisions. The Contractor shall ensure that every
-------------------------
policy for all of the insurance coverage required pursuant to this
Agreement shall contain the following provision via a rider attached to
every such policy:
(1) Any and all notices that the insurer(s) shall provide to the
Board shall be addressed to the Chancellor or his/her designee(s) at
"Board of Education of the City of New York, Community School District
10, One Fordham Plaza, Bronx, NY 10458, Attention: Ms. Irma Zardoya.
(2) The Contractor shall transmit prompt notice of each coverable
accident or occurrence to the Contractor's appropriate insurer(s) with
such notice transmittal to occur not later than required under the
Contractor's insurance policy(ies) or contract(s). The Contractor
shall transmit notice of each coverable accident or occurrence to the
Chancellor or his/her designee(s) within five (5) school calendar days
of the affected accident or occurrence.
(3) The Contractor's insurance policy(ies) or contract(s) shall
not be terminated, revised, modified or otherwise changed unless the
affected insurer(s) shall have provided at least thirty (30) days
advance written notice to the Chancellor or his/her designee(s)
regarding such termination, revision, modification or other change. If
an insurer(s) notifies the Board of the termination of any required
Page 29
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coverage, the Contractor shall provide written evidence, e.g., a new
certificate of insurance, before the effective date contained in such
notice(s) that the affected insurance coverage has been fully
replaced. If an insurer(s) notifies the Board of any non-termination
revision, modification or other change that causes the Contractor's
insurance coverage to be out of compliance with the requirements of
this Agreement, the Contractor shall cure such non-compliance before
the effective date contained in such notice(s).
(D) The minimum coverage limit amounts and types of insurance coverage
expressed in this Agreement shall not be construed in any manner whatsoever
to limit the nature and/or extent of the Contractor's responsibility and
liability under this Agreement to protect, defend, indemnify and hold
harmless the Board as hereinafter provided.
(9) INDEMNIFICATION. The Board and the Contractor do hereby acknowledge,
---------------
stipulate and agree that each party shall be solely responsible for each party's
own acts and omissions as well as the acts and omissions of each party's own
agents, servants, employees, owners (including, without limitation, parent and
over-parent entities), partners (including, without limitation, general,
limited, silent and apparent partners), directors, officers, elected or
appointed officials, members, subcontractors, subcontractor employees,
volunteers, invitees, licensees, designees, assigns or any other
representatives. The Contractor shall defend, indemnify and hold harmless the
Board, CSD10 and the City of New York from and for any and all claims, damages
and any and all other forms of liability arising from, or in connection with,
any negligent act(s) of commission and/or omission of the Contractor and/or the
Contractor's agents, servants, employees, owners (including, without limitation,
parent and over-parent entities), partners (including, without limitation,
general, limited, silent and apparent partners), directors, officers, elected or
appointed officials, subcontractors, subcontractor employees, volunteers,
invitees, licensees, designees, assigns or any other representatives. Likewise,
the Board shall defend, indemnify and hold harmless the Contractor from and for
any and all claims, damages and any and all other forms of liability arising
from, or in connection with, any negligent act(s) of commission and/or omission
of the Board and/or the Board's pupils, parents, agents, servants, employees,
directors, officers, elected or appointed officials, members, contractors,
contractor employees, volunteers, invitees, licensees, designees, assigns or any
other representatives.
(10) SECURITY CLEARANCE. (A) The Contractor does hereby consent,
--------------------
acknowledge and agree that, in the discretion of the Chancellor or his/her
designee(s), the Contractor's employees, subcontractors and subcontractor
employees engaged in the performance of this Agreement may be subject to
security and/or health clearance procedures administered by the Board including,
without limitation, fingerprint checks. The Chancellor or his/her designee(s)
shall determine whether and to what extent any one or more of the Contractor's
employees, subcontractors and subcontractor employees subject to security and/or
health clearance procedures shall be denied access to New York City Public
School pupils, parents, staff and/or supervisors for security, health and/or
other reasons.
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(B) If the Chancellor or his/her designee(s) denies access to any one or
more of the Contractor's employees, subcontractors and subcontractor employees,
the Contractor does hereby consent and agree to abide by the following:
(1) The Board shall notify the Contractor and the individual(s) and/or
entity(ies) of the specific grounds for the decision and will afford the
individual(s) and/or entity(ies) an opportunity to present information on
his/her/its own behalf; and,
(2) Immediately upon notification, the Contractor shall remove and bar
the affected individual(s) and/or entity(ies) from any contact with New
York City Public School pupils, parents, staff and/or supervisors in the
course of the performance of this Agreement, unless and until the decision
is reversed or modified; and,
(3) Immediately, the Contractor shall assign another employee(s),
subcontractor(s) and/or subcontractor employee(s) to fulfill the duties and
responsibilities of the removed individual(s) and/or entity(ies) in
connection with the performance of this Agreement, unless and until the
decision is reversed or modified.
(C) The Contractor shall be solely obligated to bear the costs of all
security and/or health clearance procedures that involve fees or other costs for
any and all persons and/or entities required to undergo such procedures. The
Contractor shall make no demand for, nor be entitled to receive, any additional
compensation of any kind for any and all fees and costs for clearance procedures
as well as any and all costs arising from the debarment of any one or more of
its employees, subcontractors and subcontractor employees under these security
and/or health clearance procedures.
(11) CONFIDENTIALITY. (A) The Contractor does hereby agree and covenant
---------------
that any and all questionnaires and other forms, documents and/or work papers,
which the Contractor and/or its consultants, subconsultants and/or
subcontractors use to elicit information pursuant to the Agreement from Board
teachers, administrators, employees, pupils, pupil parents and/or guardians,
and/or other pupil family members shall not contain any personally identifiable
or traceable information, data, marks or images.
(B) The Contractor and/or its subcontractors, if any, shall adhere in every
respect to the law, Board policy and the Chancellor's regulations concerning
confidentiality of pupil records. The Contractor shall submit to the Board all
information and data that the Contractor and/or its consultants, subconsultants
and/or subcontractors collect pursuant to this Agreement.
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(12) CHANCELLOR'S DESIGNEES. The Chancellor's designee(s) for general
-----------------------
contractual oversight shall be Irma Zardoya, CSD10's Community Superintendent,
or her successor, whom the Board shall designate from time to time with written
notice to the Contractor. For the particular purpose(s) of approvals and
decisions under this Agreement by the Board's Division of School Facilities
(herein expressed as "DSF"), there shall be a second, additional Chancellor's
designee, namely, Patricia Zedalis, the Board's Chief Executive for School
Facilities, or her successor, and/or such other person(s) as the Board shall
designate from time to time with written notice to the Contractor. For the
particular purpose(s) of security and health clearance procedures under this
Agreement, there shall be a third, additional Chancellor's designee, namely,
Howard Tames, the Board's Executive Director of the Division of Human Resources,
or his successor, and/or such other person(s) as the Board shall designate from
time to time with written notice to the Contractor. In the event of conflicting
instructions from two or more of the Chancellor's designees, the Contractor
shall make a written request for conflict resolution to the Chancellor's Board
of Review, Board of Education of the City of New York, 65 Court Street, Room
811, Brooklyn, New York 11201-4954, Attention: Arthur H. Avedon; Tel.: (718)
935-2936; Fax: (718) 935-5403.
(13) BOARD'S AUTHORITY. The supervisory and disciplinary authority of the
-----------------
Board, the Chancellor, community superintendents, principals and other Board
managerial employees over the staff, pupils and facilities of the City School
District of the City of New York shall not be diminished in any manner nor to
any extent whatsoever by this Agreement.
(14) NO FEE CHARGING. The Contractor shall not charge fees to, nor seek any
---------------
payment and/or compensation of any kind whatsoever from, Board employees for the
Services that the Contractor provides under this Agreement, except for BOE
employees who take any of the Contractor's proprietary educational courses. The
same shall apply equally to the Contractor's employees, subcontractors and
subcontractor employees.
(15) BOARD APPROVAL. The Contractor does hereby acknowledge, stipulate and
--------------
agree that any and all materials and/or resources to be utilized in the
performance of this Agreement may be subject to the prior approval of the
Chancellor, his/her designee(s), and/or the contractual oversight
administrator(s) for the particular BOE site(s).
(16) CONSENT TO JURISDICTION, CHOICE OF LAW, VENUE AND ADMINISTRATIVE
---------------------------------------------------------------------
REMEDIES. (A) The BOE and the Contractor do hereby acknowledge, consent,
- --------
stipulate warrant and agree that any and all claims, actions, appeals,
proceedings and/or special proceedings against the BOE and/or the City of New
York arising under this Agreement and/or related in any way or to extent
whatsoever thereto shall be heard and determined either in the courts of the
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United States located in the City of New York (hereinafter expressed as "Federal
Court[s]"), the courts of the State of New York located in the City and the
County of New York (hereinafter expressed as "State Court[s]"), or the courts of
the City and Counties of New York located in the City and County of New York
(hereinafter expressed as "City Court[s]"). Furthermore, the Board and the
Contractor do hereby acknowledge, stipulate, consent, warrant and agree that
this Agreement and any and all claims, actions, appeals, proceedings and/or
special proceedings arising therefrom shall be governed solely by the laws of
the State of New York. To effect this agreement and intent, the Board and the
Contractor do hereby expressly acknowledge, stipulate, consent, warrant and
agree as follows:
(1) If the Board and/or the City of New York shall initiate any claim,
action, appeal, proceeding and/or special proceeding against the Contractor
in Federal Court, State Court or City Court, service of process may be made
upon the Contractor either in person, wherever the Contractor may be found,
or by certified mail addressed to the Contractor at its last known address
as the Contractor shall have provided it to the Board in writing;
(2) With respect to any claim, action, appeal, proceeding and/or
special proceeding in State Court or City Court between the Board and/or
the City of New York, on the one hand, and the Contractor, on the other
hand, the Contractor does hereby waive and relinquish any rights it might
otherwise have (a) to move to dismiss on grounds of forum non conveniens,
(b) to remove to Federal Court, and/or (c) to move for a change of venue to
a State Court or a City Court outside of New York County;
(3) With respect to any claim, action, appeal, proceeding and/or
special proceeding in a Federal Court located in the City of New York
between the Board and/or the City of New York, on the one hand, and the
Contractor, on the other hand, the Contractor does hereby waive and
relinquish any rights it might otherwise have to move to transfer the
claim, action, appeal, proceeding and/or special proceeding to a Federal
Court outside of the boundaries of the City of New York; and,
(4) If the Contractor shall institute, commence, file or otherwise
start any claim, action, appeal, proceeding and/or special proceeding
against the BOE and/or the City of New York in a court other than in the
City and State of New York (or any claim, action, appeal, proceeding and/or
special proceeding in a State Court or a City Court in any venue other than
New York County), the Contractor shall consent, upon request by the BOE
and/or the City of New York, either to a transfer of the claim, action,
dispute, appeal, proceeding and/or special proceeding to a court of
competent jurisdiction located in the City and State of New York (or in any
claim, action, appeal, proceeding and/or special proceeding in a State
Court or a City Court, to a court of competent jurisdiction within the
venue of New York County) or, if the Contractor shall consent, to dismiss
any such claim, action, appeal, proceeding and/or special proceeding
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without prejudice with the allowance that the Contractor may thereafter
reinstitute the claim, action, appeal, proceeding and/or special proceeding
in a court of competent jurisdiction located in the City and State of New
York (or in any claim, action, appeal, proceeding and/or special proceeding
in a State Court or a City Court, in a court of competent jurisdiction
within the venue of New York County).
(B) The Board and the Contractor do hereby acknowledge, stipulate, consent,
warrant and agree that, before seeking any judicial intervention, ruling,
determination, judgment, order, relief, temporary restraining order, preliminary
or permanent injunction, award, review, appeal or any other remedy at law or in
equity in any Federal Court, State Court or City Court pertaining to any claim,
dispute, interpretational disagreement or any other matter, issue, right and/or
obligation arising under this Agreement, the Contractor and/or the Board must
first exhaust all administrative review, adjudication and/or alternative dispute
resolution procedures and remedies available under the Bylaws of the Board of
Education of the City School District of the City of New York, particularly
Article 8 entitled, "Contracts," Section 8.3 entitled, "[Chancellor's] Board of
Review," as the same is currently, or may hereafter be, amended, updated,
revised or otherwise lawfully changed. The Board and the Contractor do hereby
acknowledge, stipulate, consent, warrant and agree further that they shall be
bound in all respects and for all general and particular intents and purposes by
the rules, regulations and procedures of the Chancellor's Board of Review, as
such rules, regulations and procedures are currently, or may hereafter be,
amended, updated, revised or otherwise changed as well as by any and all
rulings, judgments, determinations, findings, orders, relief, temporary
restraining orders, preliminary and/or permanent injunctions, awards or any
other remedies at law or in equity as issued by the Chancellor's Board of
Review, whether the same shall or may be preliminary, provisional,
interlocutory, final or otherwise. Whereupon the Board or the Contractor shall
institute, commence, file or otherwise start any claim, action, appeal,
proceeding and/or special proceeding against the other party and/or against the
City of New York in any Federal Court, State Court or City Court before the
exhaustion of all administrative procedures and remedies of the Chancellor's
Board of Review, the Board or the Contractor shall consent, upon a request from
the other party, i.e., the defendant, respondent or appellee party, to dismiss
such court or other non-Chancellor's Board of Review claim, action, appeal,
proceeding and/or special proceeding without prejudice with the allowance that
the Board or the Contractor may reinstitute such claim, action, appeal,
proceeding and/or special proceeding before the Chancellor's Board of Review.
(17) INCORPORATION OF ADDITIONAL TERMS & CONDITIONS. For all general and
-----------------------------------------------
particular intents and purposes, the Board's standard "Terms and Conditions" are
hereby incorporated into, and made part of this Agreement as "Attachment I."
(18) ORDER OF GOVERNANCE. To the extent that any inconsistency(ies) exists
-------------------
between any provision(s) of this document and any provision(s) of Attachments A,
B, C, D, E, F, G, H and/or I, this document shall have complete supremacy and
shall prevail and govern in every case and for all general and particular
34
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intents and purposes. In descending order, the order of governance is hereby
established as follows: first this document, then Attachment A, then Attachment
B, then Attachment I, the Attachment D, then Attachment E, then Attachment F,
then Attachment G, then Attachment H, and finally Attachment C.
[NO FURTHER TEXT APPEARS ON THIS PAGE.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day, month and year first above written.
BOARD OF EDUCATION OF EDUCATIONAL VIDEO
THE CITY SCHOOL DISTRICT OF CONFERENCING, INCORPORATED
THE CITY OF NEW YORK
By: /s/ Burt Sacks for By: /s/John J. McGrath
-------------------------------- -------------------------
Chancellor Dr. John J. McGrath
President
Approved as to legal sufficiency:
By: /s/ Michael P. Coneys
-------------------------------
BOE Office of Legal Services
Approved as to description of services, benefits to
CSD10, and use of CSD10 school facilities:
By: /s/ Irma Zardoya
-------------------------------
Community Superintendent
Community School District No. 10
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BOARD OF EDUCATION ACKNOWLEDGMENT
---------------------------------
STATE OF NEW YORK }
CITY OF NEW YORK } scilicet: Brooklyn Heights
COUNTY OF KINGS }
On this 14th day of July, 1999, before me personally came one Burton
Sacks, to me known and known to me to be the Chief Executive for Community
School District Affairs, Monitoring & Municipal Relations of the BOARD OF
EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, to execute the
foregoing Agreement for and on behalf of the BOARD OF EDUCATION OF THE CITY
SCHOOL DISTRICT OF THE CITY OF NEW YORK; and, Burton Sacks attested that he was
duly authorized by the Chancellor of the BOARD OF EDUCATION OF THE CITY SCHOOL
DISTRICT OF THE CITY OF NEW YORK to execute the foregoing Agreement for and on
behalf of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW
YORK; and, Burton Sacks acknowledged that he did indeed execute the foregoing
Agreement for and on behalf of the BOARD OF EDUCATION OF THE CITY SCHOOL
DISTRICT OF THE CITY OF NEW YORK.
/s/ Katherine Schiavarelli
--------------------------------------
NOTARY PUBLIC OR COMMISSIONER OF DEEDS
KATHERINE SCHIAVARELLI
Notary Public, State of New York
No. 01S06020442
Qualified in Kings County
Commission Expires 11-15-19
CONTRACTOR ACKNOWLEDGMENT
-------------------------
STATE OF NEW YORK }
CITY OF YONKERS } scilicet: ___________________
COUNTY OF WESTCHESTER }
On this 13 day of July, 1999, before me personally came one Dr.
John J. McGrath, to me known and known to me to be the President of EDUCATIONAL
VIDEO CONFERENCING, INC., to execute the foregoing Agreement for and on behalf
of EDUCATIONAL VIDEO CONFERENCING, INC.; and, the same Dr. John J. McGrath
attested that he was duly authorized by the governing body of EDUCATIONAL VIDEO
CONFERENCING, INC., to execute the foregoing Agreement for and on behalf of
EDUCATIONAL VIDEO CONFERENCING, INC.; and, the same Dr. John J. McGrath
acknowledged that he did indeed execute the foregoing Agreement for and on
behalf of EDUCATIONAL VIDEO CONFERENCING, INC.
/s/ Kristine E. Crotty
--------------------------------------
NOTARY PUBLIC OR COMMISSIONER OF DEEDS
KRISTINE E. CROTTY
Notary Public, State of New York
No. 4994838
Qualified in Putnam County
Commission Expires April 13, 2000
Page 37
<PAGE>
BOARD OF EDUCATION OF THE CITY OF NEW YORK
CSD10 VIDEO CONFERENCING & TELECOMMUNICATIONS SERVICES AGREEMENT
----------------------------------------------------------------
Contractual Oversight Administrator Appointment Form
(Print or type all information unless otherwise directed)
CSD10 School/Office: __________________________________________________________
Street Address: _______________________________________________________________
City, State & Zip Code: ________________________________________________________
Telephone Number: (____)________________ Fax Number:(____)____________________
I, ________________________________, the principal or office manager of the
above expressed CSD10 school or office site do hereby appoint the hereinafter
named Board of Education employee to serve as the Contractual Oversight
Administrator for the hereinafter designated site(s) under the "CSD10 Video
Conferencing & Telecommunications Services Agreement" for the period hereinafter
specified. This appointment shall continue solely at my pleasure until such time
as I shall notify the Chancellor's designee of any change in the appointment.
---------------------------------------------
(Signature)
---------------------------------------------
(Date)
Full Name of Contractual Oversight Administrator: ______________________________
Regular Title: _________________________________________________________________
Employment Location: ___________________________________________________________
Street Address: _______________________________________________________________
City, State & Zip Code: ________________________________________________________
Telephone Number: (____) ______________ Fax Number: (____) ____________________
School or Other Site(s) of Appointment: ________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
********************************************************************************
The appointment of the named Contractual Oversight Administrator is hereby:
Approved _____
Disapproved _____
Date: __________ Chancellor's Designee Signature: ____________________________
Designee's Printed Name: ____________________________________
Page 38
<PAGE>
Attachment H
------------
July 15, 1999
M E M O R A N D U M
- ----------------------------
TO: Suppliers/Sellers/Lessors to Educational Video Conferencing, Inc.
FROM: Michael P. Coneys, Attorney
Office of Legal Services, Commercial Law Unit
SUBJECT: Appointment of Educational Video Conferencing, Inc., as special
purchasing agent for the limited purposes of the BOE Video
Conferencing & Telecommunications Services Agreement.
- --------------------------------------------------------------------------------
Please be advised that, pursuant to a formal municipal corporate resolution
and an attendant contract, the Board of Education of the City of New York
("BOE") has appointed Educational Video Conferencing, Inc. ("EVC"), 35 East
Grassy Sprain Road, Yonkers, New York 10710, to be and to act as an official
agent on behalf of the New York City Public School System for the limited
purposes of making and effecting purchases, leases and other forms of lawful
acquisition of goods, commodities, materials, supplies, equipment, labor, and
services, etc., for purposes of the resale of such items and services to the BOE
as part of a BOE agreement with EVC to furnish goods, materials and services for
a school-based video conferencing and telecommunications program.
For purposes of Federal, State and local sales, excise and compensating use
taxes, please be advised that the BOE is a tax exempt municipal corporation,
school district and political subdivision as defined under the U.S. Internal
Revenue Code, 26 U.S.C. Section 4221, et seq., the New York State Tax Law,
Section 1116, et seq., the New York State Education Law, Section 2551, and the
New York State General Construction Law, Section 66(1). For your information,
please use BOE Tax Exempt Identification 69-0210637. Thus, all otherwise taxable
purchases, leases, and other forms of lawful acquisition by EVC for purposes of
this BOE program should be exempted from the collection of sales, excise and/or
compensating use taxes, because EVC is acting as an agent on the BOE's behalf.
EVC is a reseller and not an end consumer; the BOE is the end consumer.
Please contact me at your earliest convenience if you have any questions or
comments that you wish to discuss regarding this matter. Thank you for your
attention and cooperation.
MPC/m
Tel: (718)935-3608
Reference: mpc files//1998-99 contracts//OLS Log 2509//Letter 2000-
Page 39
<PAGE>
Standard Operating Procedures Chapter: EXTENDED USE OF
SCHOOL BUILDINGS
Financial Management Centers
Division of Business and Administration
ATTACHMENT A
Topic: TABLE OF CONTENTS
--------------------------------------------------------------
NUMBER TOPIC
- --------------------------------------------------------------------------------
1 INTRODUCTION
2 PERMIT PROCESSING AND COMPLETING THE PERMIT APPLICATION
3 COMPLETING THE APPLICATION AND ACCOUNTING FOR RECEIPTS
4 PROCESSING SPACE SHEETS AND ACCOUNTING FOR CUSTODIAL FEES
5 REGULATIONS GOVERNING THE EXTENDED USE OF SCHOOL BUILDINGS
6 SUMMER DAY CAMPS
7 GUIDELINES GOVERNING FEES (DURING HOURS SCHOOLS ARE NOT OPEN)
---
Date: 4/90 SOPM No.": 4-90
1
<PAGE>
Standard Operating Procedures Chapter: EXTENDED USE OF
SCHOOL BUILDINGS
Financial Management Centers
Division of Business and Administration
Topic: 2. PERMIT PROCESSING AND COMPLETING THE PERMIT APPLICATION
------------------------------------------------------------
2.1 Applicants may obtain a Permit Application (Exhibit A Form PO 68) at
the appropriate permit office; these include the Community School
District Office, high school superintendent's office or the special
education regional office, or at the school at a time and place
designated by the principal (the custodian/engineer's office may not
be the designated place).
2.2 After applicant for a Permit has read the Board of Education's
regulations (refer to Topic 5), the applicant completes the Permit
form. Permits must be made out in the name of an organization.
2.3 The holder of a Permit must agree to observe the rules and
regulations contained in this Chapter, and to conform to all
applicable laws and regulations governing the extended use of school
buildings. The Permit holder shall exercise the utmost care in the
use of school premises and property; make good any damage arising
from the occupancy of any part of school premises; and save harmless
the Board of Education from any claim, loss or damage incurred by
the Board by reason of any act or omission on the part of the
holder, its members, officers, employees, and agents, and any person
using the premises by invitation or with the permission of the
holder.
2.4 A Permit Application must be submitted to the appropriate permit
office or school (at a time and place designated by the principal)
one month before the date being requested. An approval or denial of
---------
the Permit will be returned to the school and applicant two weeks
prior to the activity date.
2.5 After the Permit Application is completed, it will be sent to the
custodian/engineer for determination of availability of space and
required staff. The Permit Application is then forwarded to the
principal for review and approval of the requested date. Once
approved, the Permit Application is forwarded to the appropriate
permit office for determination of the charge and final approval by
the Superintendent or his designee.
2.6 The applicant should contact the district office processing the
Permit within five working days of submitting the Permit to
----
ascertain the final determination of fees to be charged. If charges
are applicable, the applicant must send a certified check or money
order made payable to the Board of Education for the full amount, to
the appropriate permit office (include the Permit number on the
check). Checks drawn on New York City Agency accounts need not be
---
certified. No Permit will be issued until all applicable fees are
--------------------------------------------------------
paid in full.
------------
Date: 4/90 SOPM No.": 4-90
2
<PAGE>
Standard Operating Procedures Chapter: EXTENDED USE OF
SCHOOL BUILDINGS
Financial Management Centers
Division of Business and Administration
Chapter: EXTENDED USE OF SCHOOL BUILDINGS
---------------------------------------------------------------------
Topic: 2. PERMIT PROCESSING AND COMPLETING THE PERMIT APPLICATION
---------------------------------------------------------------------
2.11.3 When admission fees are charged, including pre-sale of
tickets, or donations are to be solicited or accepted, or
any fund-raising activity is to take place, the applicant
must state on the Permit Application:
- the admission fee (if applicable); and
- the name of the organization designated as beneficiary
of the proceeds resulting from admission fees,
solicitations or donations.
2.11.4 The following must be attached to the Permit Application
prior to final approval and retained by the appropriate
Permit Office:
- A letter on official stationery from the charitable or
educational organization that is to receive the proceeds
stating that it approves of the fund-raising function
and will use the proceeds for recognized charitable or
educational purposes. The letter must be specific about
the nature of these purposes (e.g., providing a Senior
Citizens Program);
- A brief listing of expenditures and projected profits by
the applicant organization; and
- A New York State Tax Exempt Approval Form (For Non-Board
of Education organizations).
2.12 Any Permit holder requesting a refund and/or change in the terms of
the original Permit shall file an "Amendment or Refund Application"
(Exhibit B Form PO 301). When signed by the custodian engineer and
principal, this form will be forwarded to the High School Permit
Office, Special Education Permit Office or the Community School
District Permit Office, for approval. This form shall be available
at the Community School District High School Office, Special
Education Office or the desired school at a place and time
designated by the principal. All questions regarding refunds are to
be directed to the appropriate permit office.
NOTE: The Permit holder must notify the school at least
twenty-four (24) hours in advance of the scheduled date
and time of use to cancel or change the terms of the
Permit to avoid being charged applicable fees.
Date: 4/90 SOPM No.": 4-90
3
<PAGE>
Standard Operating Procedures Chapter: EXTENDED USE OF
SCHOOL BUILDINGS
Financial Management Centers
Division of Business and Administration
Chapter: EXTENDED USE OF SCHOOL BUILDINGS
--------------------------------
Topic: 3. COMPLETING THE APPLICATION AND ACCOUNTING FOR RECEIPTS
----------------------------------------------------------
3.3 The applicant must contact the district office processing the Permit
within five working days of submitting the Permit to ascertain the
----
fees to be charged. If charges are applicable, the applicant must
send a certified check or money order made payable to the Board of
Education for the full amount to the district office (include the
Permit number on the check). Checks drawn on New York City agency
accounts need not be certified. No Permit will be issued until all
----------------------------------
applicable fees are paid in full.
--------------------------------
3.4 NO PERMIT SHALL BE CONSIDERED APPROVED:
3.4.1 UNLESS IT BEARS THE SIGNATURE OF THE HIGH SCHOOL
SUPERINTENDENT, CITYWIDE SPECIAL EDUCATION
SUPERINTENDENT OR DISTRICT SUPERINTENDENT, OR THAT OF
THEIR DESIGNEE AS APPROPRIATE; AND
3.4.2 UNTIL RECEIVED BY THE APPLICANT.
Where Permits (originals) require checks, the Permit Office shall
affix the checks to the Cash Receipts Form and forward them to the
Central Business Office in the Division of Business and
Administration with a copy of the permit (see item 3.5.1).
3.5 The person designated, pursuant to item 1.3, by the Community
Superintendent, Executive Director of High Schools or Executive
Director of Special Education will distribute 5 copies of the permit
as follows:
3.5.1 Where Permits require checks, a copy to the Central
Business Office;
3.5.2 A copy retained for the FMC's records; and
3.5.3 Remaining copies to the Principal, who will send the
appropriate copies to the applicant and custodian
engineer, and keep a copy in his files.
Date: 4/90 SOPM No.": 4-90
4
<PAGE>
Standard Operating Procedures Chapter: EXTENDED USE OF
SCHOOL BUILDINGS
Financial Management Centers
Division of Business and Administration
Chapter: EXTENDED USE OF SCHOOL BUILDINGS
--------------------------------
Topic: 4. PROCESSING SPACE SHEETS AND ACCOUNTING FOR CUSTODIAL FEES
-------------------------------------------------------------
4.6 The custodian engineer will then do the following:
4.6.1 Complete the heading of the Space Sheet;
4.6.2 Sign at the top of Space entitled "Signature of
custodian/engineer;"
4.6.3 Forward Copy 1 to the Bureau of Non-Pedagogic Payroll,
Custodial Payroll Unit;
4.6.4 Retain Copy 2 for his records; and
4.6.5 Forward Copy 3 to the official designated by the
Community School District Superintendent, Executive
Director of High Schools, or Executive Director of
Special Education (see item 1.3).
4.7 For every payroll cycle, the Custodial Payroll System will generate
a detailed accounting report reflecting the total amount of labor
costs. The Community School District, Division of High School Permit
Office or Division of Special Education Permit Office reconciles the
charges in conjunction with the Custodial Payroll Unit.
Date: 4/90 SOPM No.": 4-90
5
<PAGE>
Standard Operating Procedures Chapter: EXTENDED USE OF
SCHOOL BUILDINGS
Financial Management Centers
Division of Business and Administration
Chapter: EXTENDED USE OF SCHOOL BUILDINGS
--------------------------------
Topic: 5. REGULATIONS GOVERNING THE EXTENDED USE OF SCHOOL FACILITIES
---------------------------------------------------------------
5.7 Organizations requesting space where fund-raising or solicitation or
acceptance of donations will take place, must observe the specific
rules outlined in 2.11.
5.8 School premises may not be used for commercial purposes, except for
flea market operations authorized pursuant to Regulation of the
Chancellor, A-650.
5.9 No outside organization or group may be allowed to conduct religious
services or religious instruction on school premises after school.
However, the use of school premises by outside organizations or
groups after school for the purpose of discussing religious material
or material which contains a religious viewpoint or for distributing
such material is permissible.
5.10 Classrooms and offices must be left in the same condition in which
they were found. Desks, displays, papers, etc., shall not be
disturbed.
5.11 Masking tape, plastic tape and similar substances shall not be used
to affix materials to painted surfaces or chalkboards.
5.12 Where services by Board of Education employees are required by these
regulations, the applicant organization is responsible for all
charges incurred.
5.12.1 When shop rooms, home economics rooms, or similar rooms
with special equipment are required, a licensed Board of
Education teacher must be assigned.
5.12.2 Where kitchen equipment is to be used in the preparation
of food, an Office of School Food and Nutrition Services
employee must be assigned.
5.12.3 For the use of audio-visual equipment, public address
systems, stage lighting, pianos and similar items, prior
approval of the principal must be obtained in writing,
with a copy attached to the Permit Application. Only
Board of Education assigned persons may operate school
equipment.
5.12.4 For the use of swimming pools, one Board of Education
licensed swimming teacher or a licensed Board of
Education teacher with current American Red Cross Water
Safety Instructor's certification must be assigned for
every 25 pool participants. All persons participating in
pool activities must have their head and shoulders above
the water at the shallow end of the pool. No more than
40 persons may utilize the pool at any one time. The
appropriate Department of Health regulations regarding
the use and operation of swimming pools must be
observed.
Date: 7/93 SOPM No.": 3-93
6
<PAGE>
Standard Operating Procedures Chapter: EXTENDED USE OF
SCHOOL BUILDINGS
Financial Management Centers
Division of Business and Administration
Chapter: EXTENDED USE OF SCHOOL BUILDINGS
--------------------------------
Topic: 5. REGULATIONS GOVERNING THE EXTENDED USE OF SCHOOL FACILITIES
---------------------------------------------------------------
5.24 Permits cannot be extended beyond midnight unless special permission
has been granted by the Community School District or High School or
Citywide Special Education Superintendent, as applicable.
5.25 No group or organization which invites members of the public to a
meeting in a school facility may exclude persons on the basis of
race, religion or any other impermissibly discriminatory reason.
5.26 Permits are not transferable. Organizations receiving a Permit may
not transfer a portion of the premises covered by the Permit to
another organization or group.
5.27 Organizations may not use the address of school premises as a
mailing address.
5.28 THE CENTRAL BOARD OF EDUCATION OR COMMUNITY SCHOOL BOARD MAY REVOKE
A PERMIT FOR VIOLATION OF THE RULES AND REGULATIONS CONTAINED IN
THIS CHAPTER OR ANY OTHER APPLICABLE LAWS AND REGULATIONS.
Date: 7/93 SOPM No.": 3-93
7
<PAGE>
Standard Operating Procedures Chapter: EXTENDED USE OF
SCHOOL BUILDINGS
Financial Management Centers
Division of Business and Administration
Chapter: EXTENDED USE OF SCHOOL BUILDINGS
--------------------------------
Topic: 7. GUIDELINES GOVERNING FEES
-----------------------------
GUIDELINES GOVERNING FEES FOR THE EXTENDED USE OF SCHOOL FACILITIES (DURING
- --------------------------------------------------------------------------------
HOURS SCHOOLS ARE NOT OPEN).
- ----------------------------
7.1 Fee Schedule Organizations
--------------------------
The organizations listed below shall be charged the fees as stated
in the most current "Fee Schedule," available from the appropriate
Permit Office of the Office of School Facilities. All other
organizations are categorized as cost schedule organizations (see
item 7.2).
7.1.1 Local Adult Groups, which include local tenants groups,
------------------
taxpayer associations, drama clubs, local merchant
associations, senior citizens groups, and local chapters
of tax-exempt organizations using the school facilities
for non-fund raising purposes;
7.1.2 Local Youth Groups, including scouts, little leagues,
------------------
teen clubs, etc;
7.1.3 Government Organizations, which include federal, state
-------------------------
and city organizations and programs (e.g., Parks
Department, Police and Fire Departments, Board of
Elections, etc.); and
7.1.4 Board of Education related groups or activities.
------------------
7.2 Cost Schedule Organizations
---------------------------
The following organizations shall be charged a supplemental fee of
at least 10%. However, where two or more organizations request
simultaneous use of premises, the applicable fees and space charges
may be shared.
7.2.1 Use of school facilities for non-public employee
---------------------
recreation;
7.2.2 Unions, professional societies, and similar
--------------------------------------------------------
organizations;
-------------
7.2.3 Non-Board of Education-related educational agencies,
-------------------------------------------------------
including private schools and universities; and
7.2.4 Social Service Agencies which charge a membership
--------------------------
registration, or other fee and use the school facilities
in the absence of their own facility. These include
local "Y"s, settlement houses, and similar agencies.
Date: 7/93 SOPM No.": 3-93
8
<PAGE>
ATTACHMENT C
PROPOSAL ATTACHMENT TO BOARD OF EDUCATION
OF THE CITY OF NEW YORK
CSD10 VIDEO CONFERENCING & TELECOMMUNICATIONS
---------------------------------------------
SERVICES AGREEMENT
------------------
with
EDUCATIONAL VIDEO CONFERENCING, INC.
------------------------------------
Ms. Irma Zardoya, Superintendent of Community School District Ten of the City of
New York and Dr. John J. McGrath, President of Educational Video Conferencing,
Inc., hereby agree to the following Proposal:
I. Physical description of video conferencing equipment: Please see
---------------------------------------------------------
Attachment "A" for the physical description of four room-based
videoconferencing units to be placed in the middle schools and on the
desktop videoconferencing unit to be placed in the Superintendent's
office.
A. EVC will provide H.320/H.323 interactive
videoconferencing/distance learning stations using ISDN
high-speed IP over cable modems and DSL.
B. Said equipment shall be in place on or before August 1, 1999.
II. Telecommunications Systems: Pursuant to the terms and conditions of the
--------------------------
Agreement, EVC will have the flexibility to choose the type of telecom
transport lines which may change, from time to time, depending upon
availability, cost and state-of-the-art connectivity considerations. At
present, either three ISDN-BRI lines (384kbs or higher) or the
equivalent or higher bandwidth telecom over high-speed internet service
via cable modem or DSL.
A. EVC will have the flexibility to change telecom transport
methods, at no cost to the Board of Education, so long as the
bandwidth and quality is equal to or better than set forth
above.
B. Said telecommunications equipment shall be in place on or
before August 1, 1999.
III. Scholarships: EVC will provide one full-time scholarship for a year's
------------
study (thirty undergraduate credits) for every one hundred students who
register for college courses at District Ten sites.
IV. Training Services: EVC will instruct up to forty District Ten
------------------
administrators and/or faculty on the proper use of videoconferencing
equipment. The instruction will be sixteen hours in duration given in
two sessions at times mutually agreed upon by District Ten and EVC.
Instruction will be at District Ten facilities using the
videoconferencing equipment. Please see Attachment "B" for sample
training manual.
9
<PAGE>
Portion of ATTACHMENT C
Containing Product Information Omitted
10
<PAGE>
ATTACHMENT D
BOARD OF EDUCATION OF THE CITY OF NEW YORK
DIVISION OF SCHOOL FACILITIES
INSTRUCTIONS TO BIDDERS FOR
---------------------------
REQUIREMENT AND SERVICE CONTRACTS
---------------------------------
1. BIDS
----
Sealed Bids will be received by the Director, Division of School
Facilities Board of Education of the City of New York at his office 28-11
Queens Plaza North, Room 606, Borough of Queens until 2 P.M. on the
advertisement date appearing in the City Record.
2. TIME OF PERFORMANCE
-------------------
The proposed contract is for the period commencing three days from the
date of PURCHASE ORDER or Notice to Begin Work issued to the contractor
in accordance with schedule specification. The Board of Education
maintains the right to terminate the Contract at any time in accordance
with terms and conditions as outlined in Article 74 of the contract.
3. INTENT AND SCOPE
----------------
This Contract is intended to cover, during the period of the contract,
the services outlined in the Schedule Specification which is annexed
hereto.
4. CONTRACT DOCUMENTS EXAMINATION BY BIDDERS
-----------------------------------------
Bidders must examine the contract drawings, if any, the specifications
and the REQUIREMENT/SERVICE CONTRACT (Form of Agreement), and satisfy
-----------------------------
themselves as to the quality of the work, and from personal examination
of the locations of the proposed work and the surroundings thereof, make
their own estimate of the facilities and difficulties attending the
performance and completion of the proposed work. No bidder shall at any
time, dispute or complain of the quantity of the work required, nor of
the difficulties encountered nor assert that there was any
misunderstanding in regard to the quantity or quality or kind of
materials to be furnished or work to be done.
ALL CONTRACTORS, SUBCONTRACTORS AND WORKERS WORKING IN ANY
SCHOOL BUILDING DESCRIPTION MUST BE PREPARED TO FURNISH PROOF OF
IDENTITY UPON DEMAND AND TO WEAR IDENTIFICATION IF REQUESTED TO
DO SO BY THE PRINCIPAL OR OTHER SCHOOL AUTHORITIES.
If any person contemplating submitting a bid for the proposed contract is
in doubt as to the TRUE MEANING, OR BELIEVES THAT THERE IS AN ERROR
DISCREPANCY, INCONSISTENCY, INDEFINITE DESCRIPTION, OR AN IMPOSSIBILITY
OF PERFORMANCE, of any part of plans, specifications or other proposed
contract documents, he MAY SUBMIT to the Director a written request for
an interpretation thereof. The person submitting the request will be
responsible for its prompt delivery. Any and all interpretations and any
such supplemental instructions will be in the form of written Addenda to
the Specifications which if issued, will be mailed to all prospective
bidders (at the respective addresses furnished for such purposes) not
later than three days prior to the date fixed for the opening of bids.
Failure of any bidder to receive any such addendum shall not relieve any
bidder from any obligation under his bid as submitted. All Addenda so
issued shall become part of the Contract documents.
5. FORM OF BID
-----------
a. Bidders shall make their bid upon the form prescribed by the
Director, a copy of which, with the proper envelope in which to
enclose the bid, can be obtained upon application therefore at
Room 606, 28-11 Queens Plaza North, Long Island City, New York,
11101.
Revised November 1, 1996 R/S ITB
-1-
<PAGE>
PAGE -2- OF ORIGINAL MISSING
Revised November 1, 1996 R/S ITB
11
<PAGE>
(bb) execution by such bidder of the Contract, and the
furnishing of the Performance Bond and Payment Bond if such
bonds are specified and required in the contract documents.
4. If the bidder to whom the contract is awarded refuses or
neglects to execute the same and to furnish the required
bonds within 5 days after notice from the Secretary of the
award, the amount of his bid deposit, or as much thereof as
may be applicable to the amount of the award made to him
shall be forfeited. The bidder shall also be liable for and
agrees to pay the City on demand, the difference between
the price bid by him and the price for which such contract
shall be subsequently relet, including the cost of such
reletting, if any, less the amount of his deposit. No plea
of mistake in a bid shall be available to the bidder for
the recovery of his deposit or release from his bid bond or
as a defense to any action based upon the neglect or
refusal to execute a contract.
c. Any statement or declaration made by the bidder found to be untrue
will be sufficient cause for forfeit of his bid security by the
Board of Education.
7. SECURITY FOR CONTRACTS - PAYMENT BONDS
--------------------------------------
Within 10 days after issuance of a Proceed Order in an amount $50,000 or
more, the contractor shall execute and deliver to the Division of School
Facilities (DSF) a Labor and Material Payment Bond issued by a Surety
Company which is (1) licensed to do business in the State of New York and
(2) approved by the DSF. Licensed Surety Companies are listed in the
"Directory of Insurance Companies Licensed in New York State" which is
published by the New York State Insurance Department. Bonds shall be
submitted in such form as shall be prescribed by DSF, copies of which are
provided with the Ccontract documents. Each such bond shall be in penal
sum of at least 100% of the Contract amount of the work to be furnished;
provided, however, that more than one Licensed Surety may be utilized to
provide the required coverages where permitted by the Comptroller of the
City of New York.
During the performance of the work, the contractor shall have the
responsibility of immediately adjusting the penal sum of the Bond to
-----------
cover 100% of the increased value of any amended Proceed Order for any
individual project.
Where the initial value of the Proceed Order for an individual project
was less than $50,000, but later, subsequent to issuance of an amended
Proceed Order, is or exceeds $50,000, the bonding requirement shall
apply.
8. QUALIFICATION OF BIDDER
-----------------------
a. Before any award of contract is made, the successful bidder will
be required to submit documentation satisfactory to the Director,
Division of School Facilities (DSF), that he has:
1. A business history in the same or a related construction or
building maintenance field for at least one year prior to
the filing of the application.
Any additional or enhanced bidder qualifications that are
specified in the "Schedule Specification" shall be deemed to
amend the provisions of this Article.
2. The skill and experience, as well as the necessary
facilities, organization and demonstrated reliability to do
the work in the trade(s) for which qualification is sought
and within the time period specified in the bid documents.
3. Net liquid assets available to fund the project upon which
Revised November 1, 1996 R/S ITB
-3-
<PAGE>
he is bidding in an amount equal to 25% of the first
$25,000 of the amount bid, plus 15%. of the next $100,000,
plus 10% of the next $900,000, plus 5% of the remainder of
the amount bid. As part of the qualification documentation,
the contractor shall be required to submit a Certification
from a Certified Public Accountant (C.P.A.) or a Licensed
Public Accountant in conformance with such guidelines as
shall be established by the Contractors Qualification
Section of DSF.
4. Satisfactorily performed to final completion, a minimum
often contracts of a similar type and nature in the trade(s)
for which qualification is sought. The monetary value of the
ten contracts shall be as follows:
a) Two contracts valued at $30,000 or more
b) Three contracts valued at $20,000 or more
c) Five contracts valued at $10,000 or more
At the discretion of the Director, a combination of the
above may be considered experience sufficient for
qualification.
A minimum of five of the above contracts must have been
performed as the prime contractor. If any of the ten
contracts were not performed as the prime contractor, but
rather, as a subcontractor, then all pertinent information
necessary to make contact with both the prime contractor and
---
the owner of the premises must be provided. This information
shall include complete names, titles, addresses and
telephone numbers.
Any additional or enhanced bidder qualifications that are
specified in the "Schedule Specification" shall be deemed to
amend the provisions of this Article.
5. All required license(s)in order to be in full compliance
with the licensing and regulatory provisions of the
Administrative Code of the City of New York which shall
include, but not be limited to; a Master Plumber License in
conformity with Sections 26-131, 26-138 and 26-142; and a
Master Electrician License in conformity with Section
27-3013.
6. If, after investigation, the bidder is found to have
complied with the above qualifications, he shall be
considered eligible for award of contract, and be permitted
to bid for similar work for one year from the date of such
qualification. However, the contractor will be required to
submit a financial statement satisfactory to DSF for each
subsequent year, in order to continue eligibility status.
7. The Board may require that the bidder maintain a permanent
place of business, and, along with the qualifications
described above, will take into consideration whether or not
he has previously failed to perform contracts properly or
complete them on time; is in a position to undertake the
contract; or has without just cause, neglected the payment
of bills or otherwise disregarded his obligations to
subcontractors, suppliers or employees.
8. The foregoing should not be interpreted to prevent the DSF
or the Board of Education from rescinding eligibility status
for good cause.
Note 1: The term "he" and "bidder" as used in this Article shall apply to
- ------
the firm or corporation, which shall include the principal or
executive or "responsible person" or supervisor-in-charge in
active control of such firm or work, or person who, either
individually or as a principal or executive of the firm or
corporation, has satisfactorily completed the contract(s).
Revised November 1, 1996 R/S ITB
-4-
<PAGE>
Note 2: Documentation evidencing satisfaction of the foregoing
- ------
qualifications must be provided to the Chief Executive for School
Facilities or his/her designee. The adequacy of such documentation
shall be within the discretion of the Chief Executive, whose
determination shall be final, binding and conclusive upon the
bidder.
Note 3: The requirements stated in this article supersede those listed in
- ------
the Contractor's Application for Registration as a Responsible and
Eligible Bidder, Part 1, paragraph (c).
9. REJECTION OF BIDS
-----------------
a. The Board of Education reserves the right to reject any or all bids.
b. No award will be made to a bidder who shall fail to submit the
qualification statement setting forth the facts required to be set
forth, or a bidder whose statements set forth in such qualification
statement are found to be untrue.
c. Any statement or declaration made by the bidder found to be untrue,
will be sufficient cause for rejecting his bid.
d. The Board may reject any bid which does not conform to the
requirements of these "Instructions to Bidders". The Board, however,
reserves the right, if it is in their interest to do so, to waive
informalities in a bid, or failure to comply with all requirements of
these instructions.
e. The Board may reject any bid upon their determination that it is
submitted by an irresponsible bidder.
f. If more than one bid submitted by a bidder is under consideration for
award of contract by the Board and the bidder is able to meet the
qualifications of Para. 8 for some, but not all such contracts, the
Board will determine which contract or contracts shall be awarded him
and which of his bids should be rejected because of inability to meet
the qualifications required by Par. 8.
10. EXCISE TAX
----------
Bidders are hereby notified that they are exempt from payment of the
Manufacturer's excise taxes for material purchased for the exclusive use
of the City of New York or any of its agencies, provided that the
Manufacturer has complied with the Rules and Regulations of the
Commissioner of Internal Revenue.
11. CONTRACT AWARD
--------------
The Board of Education will either award the contract or reject all bids.
Award, if any, will be made to the lowest responsible bidder complying
with the terms of the proposal and the contract documents, as determined
by the Board of Education.
12. NO TEXT.
13. NO TEXT.
14. NO TEXT.
15. NO TEXT.
Revised November 1, 1996 R/S ITB
-5-
<PAGE>
16. WAGE RATES
----------
If the work of this contract is covered by the provisions of Labor Law
Sections 220 (Labor Upon Public Works) or Section 230 (Building
Services), the following provision(s) shall apply:
The Office of the Comptroller of the City of New York has certified wage
rates, which rates have been established by him pursuant to the laws of
the State of New York. These wage rates are posted in the Bid Room. The
Contractor and every sub-contractor on contracts shall post in a
prominent place on the site of the work a legible statement of all wage
rates as specified to be paid for the various classes of mechanics,
working men or laborers employed on the work.
17. OPEN MARKET ORDERS
------------------
When the amount of an award does not exceed $15,000, Open Market Orders
may be issued and the contractor warrants that it can and will perform
the order without making any assignment of the monies due or to become
due. In the event an Open Market Order is issued, the contractor shall be
bound by the terms of Contract No. I.
18. INSURANCE
---------
In accordance with the Contract, the contractor must obtain and maintain
separate insurance for Public (General) Liability and Owners'
(Contractors') Protective Liability. The insurance companies must be
approved by the Director and licensed by the State of New York to issue
such insurance. The required policies coverages and their liability
limits are presented below. These requirements supercede any reference to
insurance in the Standard Specifications.
LIABILITY LIMITS FOR CONTRACTS
------------------------------
TYPE OF POLICY POLICY COVERAGE ABOVE $100,000. IF $ 100,000. OR LESS
- --------------------------------------------------------------------------------
PUBLIC (GENERAL) Bodily Injury and $4,000,000. $1,000,000.
LIABILITY Property Damage per project per project
OWNERS'(CONTRACTOR'S) Bodily Injury and $1,000,000. $500,000.
PROTECTIVE LIABILITY Property Damage per project per project
- --------------------------------------------------------------------------------
WORKER'S COMPENSATION - Statutory Requirements
- --------------------------------------------------------------------------------
FIRE, MALICIOUS MISCHIEF - Value of contract as per Article 40, Section 1 of the
Contract.
- --------------------------------------------------------------------------------
19. LIQUIDATED DAMAGES (See Specification)
------------------
-6-
<PAGE>
20. WITHDRAWAL OF BIDS PRIOR TO CONTRACT AWARD
--------------------------------------------
After the opening of bids, a request by a bidder to the Board of
Revised November 1, 1996 R/S ITB
Education for consent to the withdrawal of his bid will be considered
only under the following terms and conditions:
a. Where a unilateral error or mistake is discovered in a bid, such bid may
be withdrawn after a showing of the following:
(1) The mistake is known or made known to the Board, prior to the
awarding of the contract or within three days after the opening of
the bid, whichever period is shorter. Any request must be sent by
registered mail and must be postmarked no later than 72 hours
following the opening of the bid. Request received after 72 hours
of the bid opening shall be rejected. The bidder shall have the
right to appeal this decision directly to the Chancellor's Board
of Review.
(2) The price bid was based on an error of such magnitude that
enforcement would be unconscionable.
(3) The bid was submitted in good faith and the bidder submits
credible evidence that the mistake was a clerical error as opposed
to a judgment error.
(4) The error in the bid is actually due to an unintentional and
substantial arithmetic error or an unintentional omission of a
substantial quantity of work, labor, material, or services made
directly in the compilation of the bid, which unintentional
arithmetic error or unintentional omission can be clearly shown by
objective evidence drawn from inspection of the original work
paper, documents or materials used in the preparation of the bid
sought to be withdrawn.
(5) It is possible to place the Board, in the same position as before
the withdrawal.
b. Unless otherwise required by law, the sole remedy for a bid mistake in
accordance with this provision shall be withdrawal of that bid and the
return of the bid bond or other security, if any, to the bidder.
Thereafter, the Board may, in its discretion, award the contract to the
next lowest bidder or rebid the contract. Any amendment to or reformation
of a bid or a contract to rectify such an error or mistake therein is
strictly prohibited.
c. All requests will be referred to the Board of Review. Its decision shall
be final.
d. Bidders requesting consent to the withdrawal of bids shall make available
to the Director and the Board of Review all work sheets, summary sheets
and other data requested as pertinent to its inquiry. Failure to make
available data requested will result in refusal of consent to the
withdrawal of bids.
e. Whenever any bidder or Contractor requests consent of the Board of
Education to the withdrawal of his bid, the Board of Education may grant
such request in any case which it deems just and proper, but such request
shall be made and such consent to withdraw shall be accepted by the
bidder upon the express condition that said bidder shall be excluded from
bidding again on the same item or proposal. Should any bidder request the
withdrawal of more than one bid in any twelve month period, he shall be
disqualified from bidding on Board of Education work for a period of one
year from the date of the second request.
f. Withdrawal of bid is permissible for contracts requiring bid security in
accordance with paragraph 6 after 45 days from date of bid opening,
provided such withdrawal is made prior to contract award.
g. Withdrawal of bid is permissible for contracts not requiring bid
---
security after 60 days from date of bid opening, provided such withdrawal
is made prior to contract award.
Revised November 1, 1996 R/S ITB
-7-
<PAGE>
h. Except for the circumstances described in subparagraphs 20(f) and 20(g),
where requests shall not be referred to the Board of Review, any requests
for a Withdrawal of Bid must be accompanied by a certified check made
payable to the Board of Education, Administration of Business Affairs, to
defray the cost of the Board of Review proceeding. Such checks shall be
in the amount of five hundred dollars ($500.00) for bids of fifty
thousand dollars ($50,000.00) or greater. Where the bid is less than
fifty thousand dollars ($50,000.00), a two hundred and fifty, dollar
($250.00) check is required. Such fees are non-refundable.
21. OTHER THAN REGULAR HOURS:
-------------------------
Contractor requesting and receiving permission from the Director to
perform work in buildings under the jurisdiction of the Board of
Education on Saturday, Sunday, Holiday and other than regular hours of
duty on business days are required to pay the Board of Education for the
duly authorized extra service entailed compensation in accordance with
the following schedule:
a. After 5:00 P.M. on business day - $26.00/hour.
b. Saturday, Sunday and Holiday - $26.00/hour; $104.00 minimum.
For this purpose holidays are as follows: NEW YEAR'S, MEMORIAL,
INDEPENDENCE, LABOR, COLUMBUS, ELECTION, VETERANS', THANKSGIVING,
CHRISTMAS , LINCOLN'S, WASHINGTON'S, MARTIN LUTHER KING, JR.'S BIRTHDAY,
GOOD FRIDAY, ROSH HASHANAH AND YOM KIPPUR.
c. Before 7:45 A.M. on Saturdays and before 7:45 A.M. on all regular
business days during summer, Christmas and Easter Vacation periods
$26.00 per hour pro-rated.
d. When several Contractors are working at school at the same time of
the day hereinbefore stated each Contractor will pay the
Custodian-Engineer, Custodian or Cleaner-in-charge his share of
fee which will be derived by dividing the Custodian Compensation
Fee per hour or Minimum Fee by the number of Contractors at work.
Custodian-Engineer, Custodian or Cleaner-in-charge will keep an
hourly record of number of Contractors at work and their names.
e. For keeping the schools open for the benefit of Contractors for
purposes or in a manner not clearly covered in the foregoing
schedule and schedule conditions, the Chancellor and the
Administrator of Business Affairs shall be empowered to apply the
most equitable rate or rates.
f. Contractor shall not pay the Custodian anything in excess of the
above Schedule of Payments.
22. OVERTIME WORK
-------------
The Contractor is hereby advised that the Board of Education reserves the
right to order and pay for overtime work when a delay occurs provided
such delay is not the fault of the Contractor. Such overtime work shall
not be authorized until the following steps have been taken:
1. The Contractor shall obtain PW Form 30 (Application for
Dispensation) from the Sate of New York Dept. of Labor, Bureau of
Public Work.
2. After filling out this form in duplicate the Contractor shall
submit it to the authorized representative of the Board of
Revised November 1, 1996 R/S ITB
-8-
<PAGE>
Education for Certification of that section of the form which
states that the described public work project is of an important
nature and that a delay in carrying it to completion would result
in serious disadvantage to the public.
3. The Contractor shall submit the certified forms to the Industrial
Commissioner of the New York State Labor Department for
determination that such an emergency does in fact exist as
provided in sub-division 2 of Section 220 Labor Law.
4. If the Industrial Commissioner approves he will issue a
Certificate of Emergency (PW Form 31 -Notice of Determination) to
the Contractor with a copy to the Board of Education.
5. Upon receipt of this certificate, the Contractor is authorized to
proceed promptly. For each such emergency, the Contract price will
be adjusted in accordance with the provisions of the Contract.
23. EQUAL OPPORTUNITY REQUIREMENTS FOR CONTRACTORS
----------------------------------------------
The attention of all bidders is particularly directed to the various
provisions set forth in the contract documents with respect to providing
equal employment opportunity, prohibiting discrimination in employment,
soliciting of minority subcontractors, and providing on-the-job training
programs.
This contract is subject to the NYC Charter, Chapter 35, Section 814 (k)
for employment agencies, and by signing this Contract, the Contractor
agrees that it shall not discriminate against employees or applicants for
employment pursuant to federal, state or local law.
A. Pre-Award Conference
--------------------
Prior to the award of contract to the low bidder, and if requested
by the Office of Equal Opportunity, such bidder shall attend a
pre-award conference to be held in the Office of Equal Opportunity
of the Board of Education for the purpose of acquainting him with
the statutory and contractual requirements and what specific
measures shall constitute an acceptable program of Affirmative
Action.
B. Program of Affirmative Action
-----------------------------
1. The low bidder for the contract, prior to the award thereof,
shall submit to the Director of the Office of Equal Opportunity
of the Board of Education a policy letter known as a Program of
Affirmative Action.
2. The term "Program of Affirmative Action" (hereinafter referred
to as P.A.A.) means a written plan formulated by a contractor
which includes an analysis of employment, at all levels and in
all categories and aspects of its work force, which indicates at
which levels and in what categories and aspects, if any, the
contractor is deficient in the utilization of minority groups
and contains goals and timetables toward the attainment of which
the contractor's good faith effort must be directed to correct
those deficiencies.
3. The P.A.A. shall apply to all Board of Education contracts
except that, with regard to contracts under $50,000, the
Director of the Office of Equal Opportunity shall be authorized
to make such modifications as may be appropriate in the
individual case.
4. The low bidder's P.A.A. with respect to the affirmative action
to be taken by him in connection with equal employment
opportunity, will be considered by the Board of Education in its
determination as to whether a numerical low bidder is entitled
to award of this contract.
Revised November 1, 1996 R/S ITB
-9-
<PAGE>
5. The low bidder's written P.A.A. must be submitted to the
Director of the Office of Equal Opportunity within 15 days after
the bid opening. The Director of the Office of Equal Opportunity
acting for the Chancellor shall be the judge of the Program's
acceptability.
6. In the event the low bidder fails to submit an acceptable
written P.P.A. within the said 15 days, the Director of Equal
Opportunity may recommend that the low bid be rejected, the
amount of the bid deposit be forfeited, and that the low bidder
be disqualified from bidding on Board of Education work for a
period of one year.
7. NO TEXT
8. Nothing herein shall be interpreted or enforced as requiring the
use of quotas in hiring.
9. An acceptable P.A.A. shall also include the following:
a. NO TEXT
b. Written evidence or other proof which shows that minority
subcontractors have been solicited and given an equal
opportunity to submit proposals and that such proposals
have been given equal consideration for award. The Office
of Equal Opportunity, Board of Education, shall maintain a
list of minority contractors which have satisfied the
requirements of the Board of Education for competence and
financial responsibility.
c. A commitment that the low bidder understands and will
comply with the requirement to submit monthly equal
opportunity-contractor workforce reports to the Office of
Equal Opportunity, Board of Education.
d. Commitment to good faith efforts to participate in programs
for rapid advancement to full journeyman pay scale of
minority employees who by training and/or experience can
perform the duties of a qualified journeyman.
e. The P.A.A. shall specify the unions or other employee
organizations from which the contractor anticipates
obtaining workers in each building and construction trade,
and shall include commitments to good faith efforts to seek
to affect, directly or through its contractor's association
or other employer organization, programs by such unions or
organizations to advance trainees to journeyman status when
they successfully complete their course of training and
programs to accept new minority apprentices at the rate of
no less than one minority apprentice to every three
non-minority apprentices.
f. Unless otherwise exempted by the Board of Education all
facilities of the Contractor, including any which are in
any respect separate and distinct from activities of the
contractor related to the performance of the contract shall
be equally subject to these provisions.
g. The P.A.A. or portions thereof, shall be submitted on such
forms as shall be provided by the Office of Equal
Opportunity, Board of Education.
h. The P.A.A. shall include a commitment to submit to the
Office of Equal Opportunity, Board of Education, a separate
P.A.A. of the form and substance specified in
subdivisions(a.) through (g.) hereof, for each
subcontractor(s),vendor(s)or supplier(s)prior to its
approval by the Board of Education. Such submissions for
subcontractors, vendors or suppliers must be submitted to
the Director of the Office of Equal Opportunity by the
prime contractor and approved at least 30 days prior to
their signing of a contract with subcontractors, vendors or
suppliers. This requirement includes subcontractors,
vendors or suppliers regardless of their tier.
Revised November 1, 1996 R/S ITB
-10-
<PAGE>
i. Unless otherwise exempted by the Board of Education, no
specific good faith commitment, including goals of
minority, manpower utilization, contained in the P.A.A.
shall be acceptable which is not at least equal to any such
commitment contained in the most recent previous
affirmative action program, if any, of the contractor.
C. Requirement After Award of Contract: In addition to a written P.A.A. the
-----------------------------------
prime contractor shall:
1. File and also cause its subcontractors to file equal
opportunity-compliance workforce reports monthly with the Office
of Equal Opportunity, Board of Education. The Office of Equal
Opportunity may require weekly or bi-weekly reports from any one
specific contractor or subcontractor as it deems advisable.
Such compliance workforce reports shall indicate the following:
a. The percentage of work completed on the Contractor's
construction project (s).
b. The subcontractors of every tier working on the
contractor's construction project (s).
c. The total number of workers and the total number of
minority workers during the specified period in each
building and construction trade, including separate
statistics for journeymen, apprentices and trainees.
d. Explanations for any current or anticipated departures from
the total manpower utilization or minority manpower
utilization projected in the contractor's P.A.A.
e. Any and all efforts made to recruit individuals from
minority groups.
f. All other policies or practices of the Contractor affecting
compliance.
2. Cooperate with civil rights groups and responsible community
organizations concerned with the need for representative numbers
of minority group workers in the building and construction trade
industry.
3. Hire minority group members from other sources should the union
with which he has a collective bargaining agreement be unable or
unwilling to supply them.
4. Secure from his subcontractor(s),vendor(s)or supplier(s)P.A.A. and
other general requirements described above as applying to the
contractor. No subcontractor shall be given an order to proceed
until his P.A.A. is received and approved by the Director of the
Office of Equal Opportunity.
D. Sanctions and Remedies
----------------------
It is agreed that if the Contractor does not comply with equal
opportunity provisions herein stated, as solely determined by the Board
of Education, the Contractor's contract may be cancelled, terminated, or
suspended in whole or in part and the Contractor may be declared
ineligible for further Board of Education contracts and/or subject to
such other sanctions as may be imposed and remedies invoked by the Board
-11-
<PAGE>
of Education in its discretion. Contractors shall be responsible for the
compliance of their subcontractor(s), vendor(s) or supplier(s). Failure
of its subcontractor(s), vendor(s) or supplier(s) to comply with the
provisions hereof or with non-discriminatory contractual provisions,
shall be grounds for the imposition of sanctions and remedies against a
Contractor. Such sanctions and remedies include the authority of the
Office of Equal Opportunity to halt scheduled payments to Contractors who
fail to comply with the provisions hereof.
E. For information concerning the Board of Education's policy or questions
pertaining to Equal Employment Opportunity, bidders may consult with the
Office of Equal Opportunity of the Board of Education.
24. LOCALLY BASED ENTERPRISE (LBE) PROGRAM
--------------------------------------
The Board requests voluntary compliance with the requirements of
Administrative Code, 6-108.1 and the regulations promulgated thereunder.
No construction contract will be awarded unless and until the Board has
evaluated efforts made by Contractor in attempting to comply with these
requirements.
Be advised that for mayoral agencies:
a. If any portion of the contract is subcontracted, not less than ten
percent of the total dollar mount of the contract shall be awarded
to locally based enterprises ("LBEs"); except, where less that ten
percent of the total dollar amount of the contract is
subcontracted, such lesser percentage shall be so awarded.
b. No Contractor shall require performance and payment bonds from LBE
subcontractors.
c. No Contract shall be awarded unless the Contractor first
identifies in its bid:
(1) the percentage, dollar amount and type of work to be
subcontracted: and
(2) the percentage, dollar amount and type of work to be
subcontracted to LBEs.
d. Within ten calendar days after notification of low bid, the
apparent low bidder shall submit an "LBE Participation Schedule"
(Form LBE-A1) to the contracting agency. If such schedule does not
identify sufficient LBE subcontractors to meet the requirements of
Administrative Code, 6-108.1, the apparent low bidder shall
submit documentation of its good faith efforts to meet such
requirements.
(1) The "LBE Participation Schedule" (Form LBE-A1 ) shall
include:
(a) the name and address of each LBE that will be given
a subcontract,
(b) the percentage, dollar amount and type of work to be
subcontracted to the LBE, and
(c) the dates when the LBE subcontract work will
commence and end.
(2) The following documents shall be attached to the "LBE
Participation Schedule" (Form LBE-A 1):
(a) verification letters from each subcontractor listed
in the "LBE Participation Schedule" (Form LBE-A 1),
stating that the LBE will enter into a formal
agreement for work, (Form LBE-A2)
(b) certification documents of any proposed LBE
subcontractor which is not on the LBE certified
list, and
-12-
<PAGE>
(c) copies of the certification letter of any proposed
subcontractor which is an LBE.
(3) Documentation of good faith efforts to achieve the required
LBE percentage shall include as appropriate but not be
limited to the following:
(a) attendance at pre-bid meetings, when scheduled by
the agency, to advise bidders of contract
requirements;
(b) advertisement where appropriate in general
circulation media, trade association publications,
and small business media of the specific
subcontracts that would be at least equal to the
percentage goal for LBE utilization specified by the
contractor;
(c) written notification to associations of small,
minority and women contractors soliciting specific
subcontracts;
(d) written notification by certified mail to LBE firms
that their interest in the contract is solicited for
specific work items and their estimated values;
(e) demonstration of efforts made to select portions of
the work for performance by LBE firms in order to
increase the likelihood of achieving the stated
goal;
(f) documented efforts to negotiate with LBE firms for
specific subcontracts including at a minimum:
(i) The names, addresses and telephone numbers
of LBE firms that were contacted,
(ii) A description of the information provided to
LBE firms regarding the plans and
specifications for portions of the work to
be performed,
(iii) Documentation showing that no reasonable
price can be obtained from LBE firms,
(iv) A statement of why agreements with LBE firms
were not reached;
(g) a statement of the reason for rejecting any LBE
firms which the contractor deemed to be unqualified;
and
(h) documentation of efforts made to assist the LBE
firms contacted that needed assistance in obtaining
required insurance.
e. Unless otherwise waived by the agency head with the approval of
the Office of Economic and Financial Opportunity, failure of a
proposed contractor to provide the information required by
paragraphs c and d above may render the bid non-responsive and
the contract may not be awarded to the bidder. If the contractor
states that it will subcontract a specific portion of the work,
but can demonstrate that despite good faith efforts it cannot
achieve its required LBE percentage for subcontracted work until
after award of contract, the contract may be awarded subject to a
letter of compliance from the contractor stating that it will
comply with Administrative Code, 6-108. l and subject to approval
by the agency head. If the contractor has not met its required LBE
percentage prior to award, the contractor shall demonstrate that a
good faith effort has been made subsequent to award to obtain LBEs
on each subcontract until it meets the required percentage.
f. When a bidder indicates prior to award that no work will be
subcontracted, no work may be subcontracted without the prior
approval of the agency head, which shall be granted only if the
contractor, in good faith, seeks LBE subcontractors at least six
weeks prior to the start of work.
Revised November 1, 1996 R/S ITB
-13-
<PAGE>
g. The contractor may not substitute or change any LBE which was
identified prior to award of the contract without the permission
of the agency head. The contractor shall make a written
application to the contracting agency head for permission to make
such substitution or change, explaining why the contractor needs
to change its LBE subcontractor and how the Contractor will meet
its LBE subcontracting requirement. Copies of such application
must be served on the originally identified LBE by certified mail,
return receipt requested, as well as the proposed substitute LBE.
The agency head shall determine whether or not to grant the
contractor's request for substitution.
END OF INSTRUCTIONS TO BIDDERS
Revised November 1, 1996 R/S ITB
-14-
<PAGE>
SUPPLEMENTARY GENERAL CONDITIONS
--------------------------------
S.1 SCOPE
-----
These Supplementary General Conditions supersede requirements under
General Conditions of the Standard Specifications where in conflict
with same; otherwise they supplement General Conditions of the
Standard.
S.2 TORCH BURNING OPERATIONS
------------------------
A. All torch burnig operations utilizing oxygen or other
combustible gases shall be performed in strict accordance with
F.P. Directive 3-60, dated June 29, 1960, specifying Fire
Department Rules and Regulations for issuance of permits for
storage and use of oxygen and combustible gases during temporary
and emergency torch burning operations together with the
following additional precautionary measures:
1. No oxygen combustible gas cylinders shall be stored on
premises.
2. Each oxygen or other combustible gas work area shall be
separated from other areas of premises and a qualified fire
guard shall be maintained on duty to insure aforementioned
separation. Separated, as used herein, shall mean a
temporary barricade to prohibit entrance by unauthorized
persons.
3. After all oxygen and combustible gas operations have been
completed, a qualified fire guard shall be continued on duty
for a total of 1 1/2 hours during which time he shall make
three (3) complete inspections, at half hour intervals, of
entire work area for purpose of detecting fire.
4. The use of liquefied petroleum gases in occupied places of
assembly is strictly prohibited.
B. Contractor must notify Area Office of intention to proceed with
any torch burning and obtain permission from an Area Office
representative before proceeding.
C. Each contractor performing torch burning operations shall apply
and obtain Fire Department permit before commencing such work.
Also, each torch burning operator shall carry on their person, at
all times, a current certificate of fitness issued by Fire
Department to perform this type of work.
D. Fire guard shall be stationed in work area at all times during
torch burning operations and thereafter as indicated above.
E. Cost of all permits, certificates, fire guards, barricades, etc.,
required in connection with torch burning operations shall be
borne by the Contractor at no additional cost to the Board.
S.3. CLEAN-UP
--------
Upon completion of his work, each Contractor shall thoroughly clean-up
all dirt resulting from his work as required to restore work areas to
the state of cleanliness existing before work began. In general
cleaning requirements are limited to the removal of rubbish, spatters,
stains, smears, foot tracks, etc. However, where work that causes the
dissemination of dust has been performed, cleaning requirements shall
include, in addition to the aforementioned operations, all other
operations necessary to remove the dust. Also, in performing dust
creating work, the Contractor shall provide dust tight enclosures and
foot mats to minimize the spread of dust and foot marks.
Revised November 1, 1996 R/S ITB
-15-
<PAGE>
(Note: This final clean-up is in addition to the required daily removal
of rubbish) Also, Contractor shall protect drains and fixtures from
clogging due to work under this Contract and is hereby required to
clean all drains, fixtures, traps, etc., found to be clogged because of
his neglect.
S.4 NO TEXT.
S.5 CORRESPONDENCE
--------------
All correspondence regarding work of this Contract shall indicate the
school number or name, the contract number, specification number and,
where issued, the Dept. of Water Supply, Gas and Electricity number.
S.6 WORK IN CORRIDORS AND STAIRHALLS
--------------------------------
All such work shall be performed in accordance with requirements of
N.Y.C. Fire Dept. rules and regulations governing obstruction of these
locations.
S.7 INTENT
------
Except as otherwise specified, the Contractor shall provide all
articles, materials, operations of methods listed, mentioned or
scheduled herein, including all labor, materials, equipment and
incidentals necessary and required for their completion.
S.8 TRAFFIC COORDINATION
--------------------
Contractor shall schedule and perform work on or near streets so as to
limit restriction of traffic lanes to minimum consistent with safety
and requirements of work being performed. Also, Contractor shall make
maximum effort to expedite flow of traffic past any unavoidable
restriction. Also, during peak traffic periods, Contractor shall avoid
obstructing any traffic lane required for free flow of peak traffic,
except in cases of outmost emergency. Also, Contractor shall protect
areas he has restricted to traffic with warning devices and barriers to
alert oncoming drivers and to permit orderly adjustment of traffic in
advance of road restriction.
S.9 RUBBISH REMOVAL FOR RELATED CONTRACTS UNDER SAME COVER
------------------------------------------------------
A. Except as otherwise noted, Contractor for Item 1 shall provide
receptacles of adequate size and number in handy locations
throughout interior of premises to receive general interior
rubbish resulting from work of all items. Also, Contractor Item I
shall remove from premises contents of all general interior
rubbish receptacles and shall provide all labor and trucking
necessary for collection and removal of such rubbish from
premises. Also, Contractor for Item 1 shall broom clean areas
around each receptacle at end of each day's work.
B. Contractor for each Item shall collect and remove from premises.
1. All pipes, fittings, conduits, wiring, duct work, radiators,
fixtures, equipment, sheet metal, roofing, windows, and
other specific rubbish resulting for his work.
2. All rubbish of any type and description, resulting from his
work in boiler rooms, equipment rooms and fan rooms.
3. All rubbish of any type description resulting from any and
all of his exterior work. Also, Contractor for each Item
shall collect all remaining rubbish resulting from his work
and deposit same in receptacles provided by Contractor for
Item 1.
Revised November 1, 1996 R/S ITB
-16-
<PAGE>
C. Rubbish shall not be thrown down dumbwaiters, dust chutes, and
other shafts or shall rubbish be thrown from windows, roofs, and
other points above grade. Also accumulated rubbish shall be
removed from the premises at the end of each day's work.
S.10 START OF WORK
-------------
Each Contractor shall give the Area Manager and School Custodian
48-hour advance written notice of his intention to commence work.
Notification shall include the date on which work will begin, the
nature of the work to be performed, the number of workers who will
participate in the work, and the expected date of completion of the
work covered by the notice.
S. 11 LICENSE, PERMITS, ETC.
----------------------
Each Contractor shall obtain all licenses, permits, etc., required from
public agencies having jurisdiction over his work and shall keep such
documents properly posted at premises at all times during the
performance of the work covered by these documents.
S.12 GUARANTEES
----------
Each Contractor shall submit the application for final payment all
manufacturer's guarantees and warranties for new equipment installed
under his contract. Contractor shall include in these documents the
names and addresses of the local firms required to service the
guaranteed equipment. The Contractor shall obtain all manufacturer's
guarantees and warranties of all equipment and materials required by
this contract in the name of the Board and shall deliver same to the
Board.
S.13 NOISE CONTROL
-------------
A. The contractor is hereby advised that the work of this contract
shall be performed in compliance with all applicable provisions of
Local Law 57, New York City, Noise Control Code effective
September 1, 1972.
B. Without restricting the generality of the foregoing, the
Contractor's attention is directed to the following specific
provisions of this Code which is applicable to construction and
related work in and around school buildings as follows:
Section 1403.3-3.01
-------------------
No person shall make, continue or cause or permit to be made or
continued any unnecessary noise.
Section 1403.3-4.01
-------------------
Any act in violation of the provisions of this Article of the code is
deemed to be in violation of Article 111 of the code, without any way
limiting the generality of the provisions of Article 111 of the code.
Section 1403.3-411 Construction Activities
------------------------------------------
Except as otherwise provided in this section, no person shall engage in
or permit any person to be engaged in construction activities in any
zone other than on weekdays between the hours of 7 A.M. and 6 P.M.
Subject to provisions of Section 3.01 of the code, an agency of the
City of New York authorized under the Administrative Code to issue
permits or licenses authorizing construction activities may, in the
case of urgent necessity in the interest of public safety, issue
variance from the provisions of a sub-division of this section with
respect in any such construction activity. Such variance may be granted
for an initial period of up to three days and may be renewed for
periods of three days or less while such urgent necessity continues.
Such variance shall be clearly marked on such license or permit and
shall be prominently posted at the site of such construction activities
by the permittee or licensee. A copy of such marked license or permit
shall be promptly forwarded to the Board. In the case of an emergency,
Revised November 1, 1996 R/S ITB
-17-
<PAGE>
construction activities directly connected with the abatement of such
emergency may be undertaken without a variance as herein provided for a
period of not to exceed twelve hours from the commencement of such
construction during which time application for a variance hereunder
shall be made.
Section 1403.3.4.13 Construction Devices
----------------------------------------
Except as provided in Article V of this code, no person shall operate
or use or cause to be operated or used a construction device in such a
way as to create unnecessary noise.
Section 14.3.B-4.19 School. Hospitals. Courts
---------------------------------------------
No person shall cause or permit the creation of any unnecessary noise
through the use of any device on any street adjacent to any school or
court while the same is in session, or adjacent to any hospital.
Section 14,03.3-5.21 Paving Breakers
------------------------------------
To be operated only within the allowable sound levels indicated in the
code.
C. The Contractor is required to comply with all registration requirements
issued under Section 1403.2.09 for air compressors and/or paving
breakers used in the performance of the work of this Contract.
D. It shall be the responsibility of each Contractor to obtain a copy of
the aforementioned Noise Control Code and acquaint himself with the
applicable provisions and comply therewith in the performance of all
work of this contract. Copies of this Code may be obtained at the City
Record Sales Office: 2213 Municipal Building, New York, NY 10007.
S.14 ASBESTOS REGULATIONS
--------------------
All contractors are on notice that effective April 1, 1987, new City
Local Laws become effective for all actual and potential asbestos work
and handling. Contractors must become familiar with the Local Laws and
applicable regulations published by the New York City Department of
Environmental Protection. Copies of Local Law 76/85, Local Law 70/86,
and applicable regulations, as published in the City Record, may be
obtained from:
City Books, Room 2223, Municipal Building, One Centre Street,
New York, New York 10007
or from the Division of School Facilities in the Environmental Health
and Safety Section. Other Asbestos regulations, as issued by the
Department of Environmental Protection, will be effective on the date
as required by law.
Since the regulations may effect the work of the contract, all
contractors are advised to become familiar with the requirements.
Questions regarding the Local Laws and regulations should be directed
to: Department of Environmental Protection, Licensing and Certification
Unit, Asbestos Control Program at: 59-17 Junction Blvd., Corona, NY
11368 (718) 595-3648.
or to the Environmental Health and Safety Section of the Division of
School Facilities (718)391-6475.
Revised November 1, 1996 R/S ITB
-18-
<PAGE>
S.15 SECURITY - CONTRACTOR EMPLOYEE IDENTIFICATION
---------------------------------------------
The contractor shall provide photo identification badges for all his
employees and, in addition, require that any and all sub-contractors
provide same for their employees.
The badges are to be worn on outer clothing and be conspicuously
displayed at all times while present on Board of Education premises.
The badge is to include the Contractor's name, the employee's name,
social security number, date of birth, height and weight along with a
photograph of the employee.
The contractor is hereby notified that any employee of the Board of
Education shall have the right to inspect the badge. If the
Contractor's employee refuses to display or produce a badge for
examination, the Regional Manager of Maintenance shall be notified, and
the contractor may be directed to remove his employee from the premises
until such time as he is able or willing to produce said badge.
END OF SUPPLEMENTARY GENERAL CONDITIONS
Revised November 1, 1996 R/S ITB
-19-
<PAGE>
BOARD OF EDUCATION OF THE CITY OF NEW YORK
RAMON C. CORTINES, Chancellor ATTACHMENT F
- --------------------------------------------------------------------------------
OFFICE OF THE CHANCELLOR
110 Livingston Street - Brooklyn, NY 11201
Video Systems
53rd Avenue
Rego Park, NY 11374-2837
Attention:
Re: AGREEMENT TO PERFORM WORK AT PS ____, Queens
_______Avenue, Flushing, NY 11358
Installation of Suspended Microphone System in the Auditorium
Dear Ms. :
The Division of School Facilities (DSF) acknowledges the request from Mr.
, Principal of the referenced school, to Mr. , Director,
Office of Administration, for permission to install a suspended microphone
system in the school auditorium. The request states that the funding for the
work is provided by the Parent Teacher Association (PTA). It is understood that
the funds are used appropriately.
Video Systems (VS) has been selected by Mr. to
perform the referenced work and shall be paid for this work by Mr.
from the funds. The DSF, the Board of Education and the City of New
York, shall not be responsible for payment for this work.
The work shall conform to the following criteria:
- The contractor shall provide all equipment, material and labor
required to install the suspended microphone system in the auditorium.
- It is recommended that the pulleys for the microphones be suspended
from the bottom chord of existing open bar steel joists. Black iron
channel framing for hung ceiling shall not be used for suspending
microphones and pulleys.
- All cable shall be run in continuous lengths, inside approved
raceways. Microphone cables shall be an approved type, two conductor
rubber covered, shielded, 'BELDEN' or equal.
- The minimum size wire shall be #12 AWG, type THHN.
- All face plates shall be installed with non-tamperable type screws.
- There shall be no roof penetrations.
<PAGE>
Page 2
Video Systems Re: Agreement to Perform Work at
1994 PS- Queens
- Number 700 metal raceway shall be utilized for any exposed wiring in
the auditorium. Surface mounted floor raceway shall not create a trip
hazard for students.
- All conduits shall be 3/4" rigid, painted with two (2) coats of
rust-proof paint, color to match surroundings. Metal raceway light
brown in color shall not be painted, unless directed to do so.
Existing conduits may be used where code permits.
- Low voltage cables may be run exposed in hung ceilings, crawl spaces
using Board of Education Standard and NYC Codes. Power cables and low
voltage cable shall not be combined in the same conduit.
- All control devices, switches and panels shall be labeled. Panel
directories shall be updated (typed entry).
- Contractor shall supply custodian-engineer with all necessary
documents and guarantees for equipment installed, and a receipt for
any school equipment removed from the premises for alteration or
repairs.
- Contractor shall patch and paint any areas damaged while performing
work.
- It is estimated that all work shall be completed within one month of
starting work.
As used in the conditional approval hereafter, the word "you" applies
equally to you, your contractors and sub-contractors, employees, your suppliers,
your deliverers and any person entering school premises on your behalf or under
your contract or direction.
Our conditional approval to work within, upon and above Board of Education
property is subject to the following conditions:
1. You shall check with the Custodian-Engineer of the school before
starting work. You shall adhere to the rules and regulations incumbent
upon a Board of Education contractor, while on school property, and
perform work within regular hours. Any work on Saturday, Sunday,
Holiday or other than regular hours of duty on business days requires
compensation to the Custodian in accordance with the current custodial
fee schedule.
2. You shall perform all operations with valid permits and licenses of
most recent edition of the Electrical Code of the City of New York,
and with the Board of Education's 1984 Electric Work and Lighting
Fixtures Standard Specifications, 25th Edition, including all later
revisions and additions. All your equipment or supplies on Board of
Education property is your responsibility for security and protection;
3. You shall submit a sketch and written explanation detailing all
specific locations, where you might cut or drill into walls (floors,
or ceilings of your work areas, which will allow a site-specific
asbestos survey to be performed. At this time, DSF is
<PAGE>
Page 3
Re: Agreement to perform work at
1994
As used in the conditional approval hereafter, the word "you" applies
equally to you, your contractors and sub-contractors, employees, your suppliers,
your deliverers and any person entering school premises on your behalf or under
your contract or direction.
Our conditional approval to work within, upon and above Board of Education
property is subject to the following conditions:
1. You shall check with the Custodian-Engineer of the school before
starting work. You shall adhere to the rules and regulations incumbent
upon a Board of Education contractor, while on school property, and
perform work within regular hours. Any work on Saturday, Sunday,
Holiday or other than regular hours of duty on business days requires
compensation to the Custodian in accordance with the current custodial
fee schedule.
2. You shall perform all operations with valid permits and licenses of
most recent edition of the Electrical Code of the City of New York,
and with the Board of Education's 1984 Electric Work and Lighting
Fixtures Standard Specifications, 25th Edition, including all later
revisions and additions. All your equipment or supplies on Board of
Education property is your responsibility for security and protection;
3. You shall submit a sketch and written explanation detailing all
specific locations, where you might cut or drill into walls (floors,
or ceilings of your work areas, which will allow a site-specific
asbestos survey to be performed. At this time, DSF is relying on the
New York City School Construction Authority (NYCSCA) to perform the
asbestos survey and give certification of asbestos clearance
certification from the NYCSCA. You will be informed of the NYCSCA
survey results when it becomes available to us. All asbestos
regulations as promulgated by the DSF and the Department of
Environmental Protection (DEP) are included by reference.
4. You shall erect temporary barricades if and where directed by the
custodian or principal to separate your work areas and prevent
disruption to students or academic activities. All your employees,
contractors or sub-contractor's employees shall wear visible photo
identification badges which must be displayed on their outer clothing,
and the employees may be challenged by a Board personnel to provide
identification or leave the school. Your employees must stay within
access and work areas agreed upon by the custodian, school security
and yourself;
5. You shall fully protect your work site. You shall notify the
Inspection Unit to assign a representative who shall determine, with
you, special protective measures that shall be taken. You shall broom
clean your debris from the school on a daily basis. You shall
coordinate your work schedule to protect students. You shall fully
restore any damages caused by your operations, clean up and remove all
your final debris. You shall request and conduct a completion review
with the Inspection Unit representative and obtain a sign-off at the
end of your work;
<PAGE>
Page 4
Re: Agreement to perform work at
1994
6. Further, that you shall provide:
a) Insurance protecting the work against loss and damage by fire,
windstorm, hail, explosion, riot attending a strike, civil
commotion, aircraft, vehicles, smoke, vandalism and malicious
mischief, such insurance made payable to the Board;
b) Owner's Protective Liability Insurance Policy for Bodily Injury
-----------------------------------------------
and Property Damage to protect the Board and the City against
claims for bodily injury, including death, and property damage,
which may arise from your contractor's and sub-contractor's
operation (Bodily Injury and Property Damage, $1,000,000). Such
------------------------------------------------
insurance policy must be issued by companies satisfactory to DSF
and licensed by the State of New York to issue such insurance and
shall insure the Board as additional insured and shall contain by
--------------------------------------------
rider annexed to such policies, the following provisions:
[1] Notice under the policy by the Insurance Company should be
addressed to the Secretary of the Board of Education and
delivered to the Division of School Facilities;
[2] Notice of accident should be given by the Insured to
Insurance Company within sixty (60) days after such claim
shall be filed with the said Secretary;
[3] Notice of claim against the Insured shall be given to the
Insurance Company within sixty (60) days after such claim
shall be filed with the said Secretary;
[4] The policy shall not be cancelled, terminated or modified by
the company unless written notice is sent thirty (30) days
prior by Registered Mail to the contractor and the insured
(Board), addressed to the Director, Office of
Administration, nor shall it be cancelled, terminated or
modified by the contractor without the written consent of
the Director, Office of Administration;
[5] The presence of engineers, inspectors or personnel of the
Board of the City on the site of the work performed under
your contract shall not invalidate the policy of insurance;
[6] The policy shall not be invalidated by reason of any
violation of any of the terms of any policy issued by the
Insurance Company and to the Contractor.
c) All policies of insurance and notices shall be submitted to the
Director, Office of Administration, attention Contract Compliance
Section. All policies must remain effective for the complete
duration of your operations, andInsurance Policies required under
<PAGE>
Page 5
Re: Agreement to perform work at
1994
items 6a and 6b shall contain by the rider annexed to such
policies, provision of 6b [1], [4], [5] and [6].
7. You, and your sub-contractors agree to hold the Board of Education and
its officers, employees, agents and representatives harmless from any
and all liability or damages to persons, including death, or property
arising out of any work connected with your undertaking these
construction operations;
8. You shall submit all documents and information required herein, to the
attention of Gary Sheth, Contract Compliance Section, Room 800, 28-11
Queens Plaza North, Long Island City, NY 11101, for review and
consideration;
9. After you have been advised that the preceding has been satisfied, you
shall provide a two-day written notification of the intended starting
date to our:
Division of School Facilities
Inspection Unit
44-46 Vernon Boulevard
Long Island City, NY 11101
Telephone No. (718) 349-5600
10. When the work is satisfactorily completed, fill out, sign and date the
enclosed Certificate of Completion of Work and have it countersigned
by the inspector from the Inspection Unit, DSF. Return the certificate
to Mark J. David, Director for Administration (Acting), Division of
School Facilities.
<PAGE>
Page 6
Re: Agreement to perform work at
1994
If the foregoing meets with your approval, please have the appropriate
party as authorized by you sign where indicated below, and return the signed
copy.
Thank you for your cooperation in this matter.
Sincerely,
Mark J. David
Director for Administration (Acting)
Division of School Facilities
AGREED TO AND ACCEPTED:
By: _________________________________________________
Signature Title Date
MJD:GS:ymb
cc: Robert Buxbaum
Richard Quinn
J. Kirby Coughlin
Rod Luccioni
Floyd Daniels
Gary Sheth
Edward Pelisson - Inspection Unit
- Principal
Custodian
Files
<PAGE>
Page 7
Re: Agreement to perform work at
1994
CERTIFICATE OF COMPLETION OF WORK
I/We, ______________________, certified that the work is completed as of
(Contractor's Name)
___________________________, per the agreement and in accordance with the
(Date)
requirements of the Division of School Facilities (DSF).
__________________________ ________________________
(Signature of Contractor) (Date)
- --------------------------------------------------------------------------------
The referenced work has been inspected and approved as satisfactorily
completed
______________________ ________________________
(Inspection Unit, DSF) (Date)
c: Mark J. David
Gary Sheth
- Principal
Custodian
<PAGE>
ATTACHMENT G
BOARD OF EDUCATION OF THE CITY OF NEW YORK
CSD 10 VIDEO CONFERENCING & TELECOMMUNICATIONS SERVICES AGREEMENT
-----------------------------------------------------------------
Contractual Oversight Administrator Appointment Form
----------------------------------------------------
(Print or type all information unless otherwise directed)
CSD10 School/Office:____________________________________________________________
Street Address:_________________________________________________________________
City, State & Zip Code:_________________________________________________________
Telephone Number: (___) __________________ Fax Number: (___)________________
I, ______________, the principal or office manager of the above expressed CSD10
school or office site do hereby appoint the hereinafter named Board of Education
employee to serve as the Contractual Oversight Administrator for the hereinafter
designated site(s) under the "CSD10 Video Conferencing & Telecommunications
Services Agreement" for the period hereinafter specified. This appointment shall
continue solely at my pleasure until such time as I shall notify the
Chancellor's designee of any change in the appointment.
____________________________
(Signature)
____________________________
(Date)
Full Name of Contractual
Oversight Administrator:_____________________________________________________
Regular Title:__________________________________________________________________
Employment Location:____________________________________________________________
Street Address:_________________________________________________________________
City, State & Zip Code:_________________________________________________________
Telephone Number: (___) __________________ Fax Number: (___)________________
School or Other Site(s) of Appointment:_________________________________________
________________________________________________________________________________
________________________________________________________________________________
********************************************************************************
The appointment of the named Contractual Oversight Administrator is hereby:
Approved [ ]
Disapproved [ ]
Date: _____________ Chancellor's Designee Signature:__________________________
Designee's Printed Name:__________________________________
<PAGE>
Attachment H
------------
July 13, 1999
MEMORANDUM
- ----------
TO: Suppliers/Sellers/Lessors to Educational Video Conferencing, Inc.
FROM: Michael P. Coneys, Attorney
Office of Legal Services, Commercial Law Unit Office
SUBJECT: Appointment of Educational Video Conferencing, Inc., as special
purchasing agent for the limited purposes of the BOE Video
Conferencing & Telecommunications Services Agreement.
- --------------------------------------------------------------------------------
Please be advised that, pursuant to a formal municipal corporate resolution
and an attendant contract, the Board of Education of the City of New York
("BOE") has appointed Educational Video Conferencing, Inc. ("EVC"), 35 East
Grassy Sprain Road, Yonkers, New York 10710, to be and to act as an official
agent on behalf of the New York City Public School System for the limited
purposes of making and effecting purchases, leases and other forms of lawful
acquisition of goods, commodities, materials, supplies, equipment, labor, and
services, etc., for purposes of the resale of such items and services to the BOE
as part of a BOE agreement with EVC to furnish goods, materials and services for
a school-based video conferencing and telecommunications program.
For purposes of federal, state and local sales, excise and compensating use
taxes, please be advised that the BOE is a tax exempt municipal corporation,
school district and political subdivision as defined under the U.S. Internal
Revenue Code, 26 U.S.C. Section 4221, et seq., the New York State Tax Law,
Section 1116, et seq., the New York State Education Law, Section 2551, and the
New York State General Construction Law, Section 66(1). For your information,
please use BOE Tax Exempt Identification No. 69-0210637. Thus, all otherwise
taxable purchases, leases, and other forms of lawful acquisition by EVC for
purposes of this BOE program should be exempted from the collection of sales,
excise and/or compensating use taxes, because EVC is acting as an agent on the
BOE's behalf. EVC is a re-seller and not an end consumer; the BOE is the end
consumer.
Please contact me at your earliest convenience if you have any questions or
comments that you wish to discuss regarding this matter. Thank you for your
attention and cooperation.
MPC/m
Tel: (718) 935-3608
Reference: mpc files/1998-99 contracts//OLS Log No. 2509//Letter 2000-
<PAGE>
ATTACHMENT I
TERMS AND CONDITIONS
1. Definitions
-----------
A. Words used in this Agreement shall have their ordinary meanings in the
English language, except that scientific, technical, specialized or
foreign words shall be given their appropriate scientific, specialized
or foreign meanings, and definitions specifically provided elsewhere
in the Agreement shall apply.
B. The following words, names and titles shall have the following
meanings:
(1) "The Board" means the Board of Education of the City School
District of the City of New York.
(2) "The City" means the City of New York.
(3) "Board of Review" means the Board of Review established by the
Board's bylaws.
(4) "Contract Budget Detail" means the document attached to and
incorporated into the Agreement explaining and limiting how funds
paid hereunder are to be expended by the Contractor.
(5) "The Comptroller" and "The Commissioner of Finance" mean the
Comptroller and the Commissioner of Finance of the City,
respectively.
(6) "The Chancellor" means the Chancellor of the Board.
(7) "The Secretary" and "Assistant Secretary" mean the Secretary and
Assistant Secretary of the Board, respectively.
(8) "Approved," "Required," "Directed," "Specified," "Designated" or
"Deemed Necessary," unless otherwise expressed, mean approved,
required, directed, specified, designated, or deemed necessary,
as the case may be by the Chancellor or his designee.
(9) "Completion" means full and complete compliance with every
requirement of the Agreement by the Contractor as certified by
the Chancellor or his designee.
<PAGE>
2
(10) "Final Payment" means (i) the payment or refund by the Board or
City of any moneys which exhausts the amount of money made
available under the Agreement or (ii) any payment marked "Final
Payment."
2. Captions
--------
The headings of this Agreement, the paragraphs, and subparagraphs of the
Agreement, and of any attachments, are included solely for convenience and
reference, and they shall not be used in any way to interpret this
Agreement.
3. Conditions Precedent
--------------------
This Agreement shall not become effective or binding upon the Board until:
(1) it shall have been Approved as to Legal Sufficiency by the Office of
Legal Services of the Board; (2) executed by the Chancellor; and (3) the
Comptroller shall have issued a certificate indicating there remains
unexpended and unapplied a balance of the appropriation or fund applicable
hereto sufficient to pay the estimated expense of performing the Agreement
as certified by the Board. A Requirement Agreement for an extended period
will require an endorsement upon the Agreement from time to time as
services and/or items and materials are ordered, of the sufficiency of the
appropriation applicable towards the payment for said services and/or
materials as and when ordered. (Rev. 5/96)
4. Compliance with Laws
--------------------
In connection with the performance of this Agreement, the Contractor shall
comply with all applicable laws, rules and regulations. The parties hereto
agree that every provision of law required to be inserted herein be deemed
a part hereof. It is further agreed that if any such provision is not
inserted or is incorrectly inserted, through mistake or otherwise, this
Agreement shall be deemed amended so as to comply strictly with the Law.
5. Unlawful Provisions Void
------------------------
If this Agreement contains any unlawful provisions or portions thereof,
they shall be deemed deleted from the Agreement and the remainder of the
Agreement shall remain in full force and effect. If the deletion of such
provision frustrates the purpose of this Agreement, either party may make
application to the Board of Review for relief. (Rev. 1/83)
6. Religious Activity Prohibited
-----------------------------
There shall be no religious worship, instruction, proselytizing, or other
religious activity in connection with the performance of this Agreement.
<PAGE>
3
7. Political Activity Prohibited
-----------------------------
No Board property provided to the Contractor hereunder for the purposes of
this Agreement shall be used for any political activity or to further the
election or defeat of any candidate for public office. As used herein the
term "Board property" shall include, but not be limited to, supplies, work
sites, funds advanced and services.
8. Publication and Publicity
-------------------------
The Contractor or anyone employed by the Contractor may not publish the
results of its participation or findings in the performance of this
Agreement without the prior written approval of the Chancellor or his
designee. All approved publications shall acknowledge that the program is
supported by funds from the Board. Five true copies of each approved
publication shall be furnished to the Board without charge. (8/29/88)
9. Copyright
---------
If the Contractor or anyone employed by the Contractor shall write, record
or otherwise produce copyrightable material within the scope or in
furtherance of this Agreement, the Board shall be considered the author for
purposes of copyright, renewal of copyright, and termination of copyright
and, unless expressly waived in a written instrument signed by the
Chancellor or his designee, the owner of all of the rights comprised in the
copyright. (6/88)
10. Patents
-------
Any invention or discovery arising out of or developed in furtherance of
this Agreement shall be promptly and fully reported to the Board. The Board
shall have the exclusive right to apply for patent protection on such
invention or discovery and to determine how the rights in said invention or
discovery, including rights under any patent issued thereon, shall be
disposed of and administered.
11. Accounting for Property
-----------------------
If any property is acquired by the Contractor with funds provided by the
Board under this Agreement, the property shall be deemed purchased by the
Board for the use of the Contractor during the term of the Agreement shall
be permanently embossed "Property of New York City Board of Education" and
shall be returned to the Board, at the Contractor's expense, within thirty
(30) days after the end of said term, unless the Contractor is otherwise
notified in writing by the Chancellor or his designee. (6/21/88)
<PAGE>
4
12. Non-Reimbursable Expenses
-------------------------
The following items may not be claimed as a direct or indirect cost of the
Services provided under this Agreement:
a. rental expense of apartments;
b. interest on loans;
c. penalties for delinquent filing of tax returns;
d. political or charitable contributions;
e. advertising and promotions;
f. legal expenses;
g. key-man life insurance premiums;
h. federal, state and city income taxes, state and city franchise taxes,
and any costs for the preparation of such tax returns;
i. expenses incurred in preparing for operations;
j. cost of employee meals and lodging except when traveling outside the
City and pursuant to the Contract Budget Detail of this Agreement;
k. entertainment, gratuities, and any other items of a personal nature;
l. long distance telephone calls unless directly related to the services
provided under the terms of this Agreement;
m. any expense not ordinary, necessary or reasonable in the performance
of the Agreement.
13. Limitation on Overhead
----------------------
Notwithstanding any provision of this Agreement to the contrary, the
Contractor shall be reimbursed for overhead costs equal to the lesser of
either (1) the amount specified in the Contract Budget Detail of this
Agreement or (2) the amount calculated by multiplying the total direct
labor cost plus fringe benefits stated in the Contract Budget Detail of
this Agreement by a fraction, the numerator of which shall be the total of
all the Contractor's overhead costs during the term of this Agreement for
all operations, and the denominator of which shall be the total of all of
the Contractor's direct labor costs plus fringe benefits during the Term of
this Agreement for all operations.
14. No Extra Compensation
---------------------
The Contractor shall not seek, ask for, demand, sue for or recover, as
extra compensation or otherwise, any sum for labor, materials or Services
other than the compensation agreed upon and fixed.
15. Invoices and Payments
---------------------
The Contractor shall furnish proof of performance with each invoice, and
shall comply with all Board requirements concerning the manner in which
invoices are to be submitted. The Contractor shall not be entitled to
demand or receive full or partial payment, until each and every one of the
<PAGE>
5
provisions of this Agreement is complied with, and the Chancellor or his
designee shall have given written certification to that effect. Nothing
contained herein shall be construed to affect the right hereby reserved by
the Board to reject the whole or any portion of the performance, should
said certification be inconsistent with the terms of this Agreement, or
otherwise erroneously given.
16. Cancellation of Grant Funding
-----------------------------
If the goods or Services to be provided hereunder are to be paid for, in
whole or in part, by means of grant funding received by the Board from
federal, state, city or private sources, the obligation to pay the
Contractor shall be subject to the continuing availability of said funding.
The Board shall notify the Contractor within five (5) business days from
the date the Board receives written notice of the cancellation of grant
funding, in whole or in part, whereupon the Contractor may cease further
performance of this Agreement to the extent said performance would not be
supported by grant funding. However, the Board may, at its option, require
completion of performance of this Agreement by the Contractor upon giving
written assurance, signed by the Chancellor or his designee, within fifteen
(15) business days of the date the Board receives written notice of such
cancellation, that the completed performance of this Agreement shall be
supported by other available funds.
17. No Estoppel
-----------
The Board, City, and their respective departments, divisions and offices,
shall not be precluded or estopped by a statement or document issued by or
on behalf of the Board or the City, from indicating the true value of
Services performed and supplies furnished by the Contractor or by any other
person pursuant to or as a result of this Agreement, or from indicating
that any such return or certificate is untrue or incorrect in any
particular, or that the Services performed and supplies furnished or any
part thereof do not in fact conform to the provisions of the Agreement.
Notwithstanding any such statement or document, or payment in accordance
therewith, the Board and the City shall not be precluded or estopped from
demanding and recovering from the Contractor such damages as may be
sustained by reason of the Contractor's failure to comply with the
provisions of this Agreement.
18. Acceptance of Final Payment
---------------------------
Receipt and negotiation by the Contractor, or by any person claiming under
this Agreement, of the Final Payment hereunder, notwithstanding whether
such payment be made pursuant to any judgment or order of any court, shall
constitute a general release of the Board from any and all claims and
liability for anything done, furnished or relating to the labor, materials,
or services provided, or for any act of omission or commission of the Board
<PAGE>
6
or its agents and employees. Said release shall be effective against the
Contractor and the Contractor's representatives, heirs, executors,
administrators, successors, and assigns.
19. Claims - Limitation of Action
-----------------------------
No action at law or equity shall be maintained by the Contractor, its
successors or assigns, against the Board on any claim based upon or arising
out of this Agreement, or out of anything done in connection with this
Agreement, unless such action shall be commenced within six (6) months
after the date of filing of the voucher for final payment hereunder or
within six (6) months of the required completion date for the services
performed hereunder, whichever is sooner. None of the provisions of Article
2 of the Civil Practice Law and Rules shall apply to any action against the
Board arising out of this Agreement.
20. Notices
-------
The Contractor's address stated on page 1 of this Agreement is hereby
designated as the place where all notices, letters or other communications
directed to the Contractor shall be served, mailed or delivered. Any
notice, letter or other communication directed to the Contractor and
delivered to such address, or sealed in a post-paid wrapper and deposited
in any post office box regularly maintained by the United States Postal
Service, shall be deemed sufficient service thereof upon the Contractor.
Said address may be changed at any time by an instrument in writing,
executed and acknowledged by the Contractor and delivered to the
Chancellor's designee. Nothing herein contained shall be deemed to preclude
or render inoperative personal delivery of any notice, letter or other
communication, written or oral, to the Contractor. Whenever it shall be
necessary or required to prove the delivery of any notice, an affidavit
describing such delivery shall be conclusive evidence of such delivery.
21. Amendments and Waivers
----------------------
A. This Agreement may be amended by a written instrument signed by an
authorized officer for the Contractor, and by the Chancellor or his
designee. No amendment materially affecting the substance hereof shall
be effective unless approved by a Resolution of the Board, and a copy
of said resolution is attached to the amendment and incorporated
therein.
B. No waiver by the Board of any term or condition hereof shall be
effective unless in writing and signed by the Chancellor or his
designee. Any waiver shall be specifically limited to its terms, and
shall not be deemed applicable to subsequent like circumstances.
C. Any purported oral amendment or waiver shall be void.
<PAGE>
7
22. Suspension of Deliveries
------------------------
The Chancellor or his designee, may postpone, delay, or suspend the
delivery of the goods or Services, or any part thereof, without additional
compensation to the Contractor. In such event, (A) the time established for
performance by the Contractor of any duty during the Term of this Agreement
may, at the Contractor's option, be extended for the number of days the
Contractor was delayed by said suspension, postponement, or delay provided
the Term is not thereby extended; however, (B) the Term may, at the Board's
option, be extended for the number of days the Contractor was delayed by
said suspension, postponement, or delay.
23. Cancellation
------------
A. If the Contractor violates any provision of this Agreement, the
Chancellor or his designee may pursue any legal or equitable remedies
available to the Board. In addition, the Chancellor or his designee
may seek to have the Contractor declared in default by the Board of
Review pursuant to Article 8 of the Bylaws of the Board of Education.
In the event that the Board of Review shall determine the Contractor
to be in default, the Board may cancel this Agreement and shall
thereafter be relieved of all liability hereunder. Upon a finding of
default in violation of this contract by the Board of Education's
Board of Review, the Contractor shall be deemed not responsible and
disqualified from bidding for a period of four years, unless in such
finding of default, a lesser penalty is imposed by reason of
mitigating circumstances.
B. In the event of breach of this Agreement by the Contractor, the Board
shall have the right to cancel and terminate said Agreement, and the
Contractor shall be liable to the Board for any additional cost of
completion of the within services, the Board's other costs in
connection with the termination, reletting and completion of the
services. All such costs, along with any liquidated damages for delay
provided herein, may be assessed by the Board against the Contractor
and deducted by the Board from payment to be made to the Contractor
under this or any other Agreement at any time between the Contractor
and the Board or City. In the event that said costs exceed all sums
owed at the termination date of this Agreement, the Contractor shall
pay the amount of such excess to the Board upon notice from the Board
of said amount, and in the event that said costs and liquidated
damages are less than the sum payable under this Agreement as if same
had been completed by the Contractor, the Contractor shall forfeit all
claims to the difference to the Board. If the Board undertakes to
secure the services or any part thereof under this section of the
Agreement, the certificate of the Chancellor or his designee
indicating the amount of services secured, the cost and excess cost,
if any, of completing this Agreement, and the amount of liquidated
damages hereunder, shall be conclusive and binding upon the
Contractor, its assigns and all other claimants.
<PAGE>
8
24. Board Determination
-------------------
The Chancellor or his designee shall in all cases determine the
acceptability of the labor, materials, or Services which are delivered
pursuant to this Agreement, including but not limited to their quality,
delivery, and condition, and shall in all cases decide every question which
may arise relative to the performance of this Agreement. The Contractor may
not rely upon, and the Board shall not be bound by, any explanations,
determinations or other statements by or from the Board which are not in
writing and signed by the Chancellor or his designee.
25. Investigations
--------------
25.1 The Contractor agrees to cooperate fully and faithfully with any
investigation, audit or inquiry conducted by a State of New York
(State) or City of New York (City) governmental agency or authority
that is empowered directly or by designation to compel the attendance
of witnesses and to examine witnesses under oath, or conducted by the
governmental agency that is a party in interest to the transaction,
submitted bid, submitted proposal, contract, lease, permit, or license
that is the subject of the investigation, audit or inquiry.
25.2(a) If any person who has been advised that his or her statement, and
any 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 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,
25.2(b) 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 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:
25.3(a) The commissioner or agency head whose agency is a party in
interest to the transaction, submitted bid, submitted proposal,
contract, lease, permit, or license may convene a hearing, upon not
less than (5) days written notice to the parties involved to determine
if any penalties should attach for the failure of a person to testify.
<PAGE>
9
25.3(b) 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 25.5 below without the City and Board incurring any penalty
or damages for delay or otherwise.
25.4 The penalties which may attach after a final determination by the
commissioner or agency head may include but shall not exceed:
(a) The disqualification for a period not to exceed five (5) years
from the date of an adverse determination for any person, or any
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 Board; and/or
(b) The cancellation or termination of any and all such existing City
and Board 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 and Board incurring any penalty or damages on
account of such cancellation or termination; monies lawfully due
for goods delivered, work done, rentals, or fees accrued prior to
the cancellation or termination shall be paid by the Board.
25.5 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 (a) and (b) below. He or she may also consider,
if relevant and appropriate, the criteria established in paragraphs
(c) and (d) below in addition to any other information which may be
relevant and appropriate:
(a) 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 disassociation 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.
(b) 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 person whose testimony is sought has an ownership
interest in the entity and/or the degree of authority and
responsibility the person has within the entity.
(c) The nexus of the testimony sought to the subject entity and its
contracts, leases, permits or licenses with the City and the
Board.
<PAGE>
10
(d) The effect a penalty may have on an unaffiliated and unrelated
party or entity that has a significant interest in an entity
subject to penalties under 25.4 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 25.3(a) above gives notice and proves that such interest
was previously acquired. Under either circumstances the party or
entity must present evidence at the hearing demonstrating the
potential adverse impact a penalty will have on such person or
entity.
25.6 (a) 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.
(b) 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.
(c) The term "entity" as used herein shall be defined as any firm,
partnership, corporation, association, or person that receives
monies, licenses, leases, or permits from or through the City or
Board or otherwise transacts business with the City or Board.
(d) 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.
25.7 In addition to and notwithstanding any other provisions 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 the Contractor fails to promptly report in
writing to the Commissioner of Investigation of the City of New York
any solicitation of money, goods, requests for future employment or
other benefit or thing of value, by or on behalf of any employee of
the City or Board, 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
agreement.
26. Reports, Inspection and Records
-------------------------------
A. The Contractor shall promptly provide all reports required by the
Board, including without limitation, financial, program, statistical,
analytical, narrative and progress reports. Unless otherwise provided
herein, the final payment hereunder shall not be made until all
reports have been submitted and approved by the Board.
B. The Contractor shall, until six (6) years after completion of its
services hereunder or six years after date of termination of this
Agreement, whichever is later, maintain and retain complete and
correct books and records relating to all aspects of the Contractor's
<PAGE>
11
obligations hereunder. Records must be maintained separately, so as to
identify clearly the hours charged to this Agreement and be
distinguishable from all other hours charged which are not related to
this Agreement.
C. The Contractor shall make its staff, and premises, books, records,
operations, and Services provided under this Agreement, and those of
its subcontractors, available to the Board and to any person, agency
or entity designated by the Board, at any time, for program, audit,
fiscal audit, inspection, observation, sampling, visitation and
evaluation, and shall render all assistance and cooperation for said
purposes. The Contractor agrees to attend, upon demand, any
investigation conducted by the Board to produce any records and other
documents required by the Board at that investigation, to cooperate
with the Board, and to give sworn testimony pertaining to those
documents or the subject of the investigation; provided only that the
investigation, testimony, records and documents relate to the subject
of the Contractor's relationship with the Board of Education. If a
corporation, partnership or government agency, the Contractor agrees
to require its officers, employees and partners to comply with the
foregoing.
D. In its record keeping the Contractor shall also comply with all
federal, state and local laws and regulations pertaining to such
records, including, without limitation, the regulations of the
Comptroller, and shall require its subcontractors to do likewise.
E. In the event that any federal, state or local government agency, or
other public or private agency conducts an audit of any of the
Contractor's operations which pertains directly or indirectly to the
goods and services provided pursuant to this Agreement, within five
(5) working days after receipt by the Contractor of notice of the
commencement of such audit the Contractor shall give notice of such
commencement to the Board; and within five (5) working days after
receipt by the Contractor of a copy of any resulting interim or final
audit report, the Contractor shall supply one copy thereof to the
Board. (6/24/88)
27. Non-Assignment of Contract
--------------------------
The Contractor shall give its personal attention to the faithful
performance of this Agreement. The Contractor covenants that it will not
assign, transfer, convey, sublet or otherwise dispose of this Agreement or
its right, title or interest therein or its power to execute such
Agreement, to any other person or corporation without the previous written
consent of the Chancellor or his designee. If the Contractor in any way
violates the terms of this provision, the Board shall have the right to
cancel and terminate this Agreement, and the Board shall thereupon be
relieved from all liability hereunder. Nothing contained herein shall be
construed to affect an assignment by the Contractor for the benefit of its
creditors made pursuant to the statutes of the State of New York. No right
<PAGE>
12
under this Agreement, or to any monies due or to become due hereunder,
shall be asserted against the Board or the City in law or in equity by
reason of a purported assignment of this Agreement, or any part thereof, or
of any monies due or to become due hereunder, unless authorized as
aforesaid.
28. Contractor's Staff
------------------
The Contractor shall employ or contract for the services of only competent
workmen, consultants, independent contractors and other employees as are,
or reasonably may be, necessary for the performance of the Services
hereunder.
The Contractor warrants that it shall be solely responsible for its
employees' work, direction, safety and compensation. (6/84)
The Contractor agrees to replace immediately any employee, and not engage
such employee in the performance of this Agreement, if the Contractor is
notified in writing that, in the opinion of either the Chancellor, a
Community Superintendent, or their designees, such employee is incompetent
or otherwise impedes the performance of the services hereunder.
29. Confidentiality of Records
--------------------------
All personally identifiable student and staff information obtained by or
furnished to the Contractor by the Board, and all reports and studies
containing such information prepared or assembled by the Contractor, are to
be kept strictly confidential by the Contractor and shall not be provided
or disclosed to any third party without the express written permission of
the Chancellor or his designee. The Contractor shall limit access to such
material in its control to those of its employees performing services
pursuant to this Agreement strictly on a need to know basis. The Contractor
shall restrict its use of the information to its performance under this
Agreement and shall return all such material to the Board upon the
completion of the services herein.
30. Testimony
---------
If the project which is the subject matter of this Agreement at any time
becomes involved in a proceeding, to which the Board or the City is a
party, before any court, board, tribunal, panel, arbitrator, referee or
agency, the Contractor shall provide such knowledgeable witnesses as the
Board shall require, free of additional compensation of any kind. Nothing
herein shall require the Contractor to provide testimony in any proceeding
in which it is a party with interests opposed to those of the Board.
31. No Personal Liability
---------------------
Neither the members of the Board nor the Chancellor nor any officer,
employee, agent or representative of the Board or of the City shall be
personally liable, based upon any theory of law or equity, to the
Contractor or to any party claiming on behalf of or through the Contractor,
<PAGE>
13
under this Agreement, or by reason of any individual's actions or failure
to act in any way connected with this Agreement, whether or not the action
shall have been within or without an individual's scope of authority. The
scope of this provision includes personal injury to any personal interest
(commercial or otherwise), physical injury (including death), property
damages, and any pecuniary damages where such injuries or damages result
from or arise out of negligence. The Contractor further waives any and all
rights to make a claim or commence an action or special proceeding, in law
or equity, against any of the aforementioned individuals, and the
Contractor hereby assigns its complete right, title, and interest in any
such claim, action, or special proceeding to the Board. (Rev. 2/83)
32. Indemnification
---------------
The Contractor shall protect, indemnify and hold harmless the Board from
any and all claims, suits, actions, costs and damages to which the Board
may be subjected by reason of injury to person or property, or wrongful
death, as may result of any act, omission, carelessness, malpractice or
incompetence of the Contractor, or anyone employed or engaged by the
Contractor, in connection with the performance of this Agreement.
33. Conflicts of Interest
---------------------
A. No non-governmental Contractor may have on its remunerative Board of
Directors (or comparable body), employ or have under contract for
services (1) any present full-time officer or employee of the City of
New York or the Board of Education or any part-time officer or
employee of the Board, or (2) any present full-time officer or
employee of the City (including the Board of Education) on leave from
the City or the Board or any part-time officer or employee of the
Board currently on leave from the Board. The Conflicts of Interest
Board may grant waivers of this provision, if an employee or officer
is not involved in the Contractor's business with the City or the
Board. Said waivers are discretionary and must be approved prior to
the commencement of services by that individual. The Board of
Education's Ethics officer must be contacted if an officer or employee
wishes to request a waiver.
B. No Board of Education officer or employee may serve as an unpaid
member of a Board of Directors (or comparable body) of a
non-governmental not-for-profit Contractor without the permission of
the President of the Board of Education or the Chancellor. To obtain
this permission, the officer or employee must contact the Board of
Education's Ethics Officer. All other City officers or employees may
serve as unpaid members of Boards of Directors (or comparable body) of
a non-governmental not-for-profit Contractor, if the officer or
employee has no involvement with the Contractor's business with the
City or the Board.
<PAGE>
14
C. No officer or employee of the Board of Education, or the officer or
employee's spouse/domestic partner or unemancipated child(ren) can
have an ownership interest in the contractor, defined as an interest
which exceeds five percent of the firm or an investment of $25,000 in
cash or other form of commitment, whichever is less, and any lesser
interest when the officer or employee or spouse or unemancipated
child(ren) exercises managerial control or responsibility regarding
any such firm.
D. No former officer or employee of the Board may appear before the Board
on behalf of a non-governmental Contractor within one year of the
former officer or employee's termination of service with the Board. An
appearance before the Board includes all communications with the
Board. However, a former employee of the Board is not prohibited from
serving on a non-governmental Contractor's Board of Directors (or
comparable body), or from employment or contracting for services with
the Contractor, provided that the former employee does not appear
before the Board within one year of the termination of service with
the Board.
E. No former officer or employee of the City (including the Board) may
have any involvement on behalf of a non-governmental Contractor with
any aspect of a contract, including services under that contract, if
that former officer or employee was involved substantially and
personally with any aspect of that contract while employed by the
City. Any former City employee whose duties for the City or the Board
involved a contract shall contact the New York City Conflicts of
Interest Board for clarification before having any involvement with
the contract on behalf of a non-governmental Contractor or any other
private interest.
F. The Contractor warrants that, other than a bona fide employee or
contractor regularly working as a sales representative for the
Contractor, no person, selling agency, or other entity has solicited
or secured this Agreement, or has been employed or retained to do so,
for a commission, percentage, brokerage fee or contingent fee.
G. The Contractor shall not give, and warrants that it has not given or
promised to give, any gift or thing of value to a community school
board member, school leadership team member or to any officer,
employee or other person whose salary is payable in whole or part from
Board or City funds, or other funds under this Agreement. The phrase
"gift or thing of value" shall include, without limitation, money
tangible goods, services, loans, promises or negotiable instruments.
H. If the Contractor violates any provision of this paragraph, the Board
may, at its option: (1) cancel and terminate this Agreement and be
relieved of all liability hereunder; (2) deduct all amounts paid by
the Contractor or other value given by the Contractor in violation of
this paragraph from payments made or to be made to the Contractor
under this or any other Agreement at any time;
<PAGE>
15
I. (3) require the refund of any funds paid hereunder; (4) any
combination of the foregoing; or (5) any other action the Board deems
necessary and appropriate as permitted by law. Any breach of the
warranties or violation of the provisions of this paragraph shall be
grounds to find the Contractor or its principals as not a responsible
bidder on other Board or City contracts.
I. Provider shall adhere to the Central Board of Education policy on
Conflicts of Interest, the Chancellor's Regulations on Conflicts of
Interest C-110, and the New York City Charter provisions on Conflicts
of Interest which are hereby incorporated by reference as if fully
attached hereto.
J. Provider shall upon the request of the Board, complete a Conflicts of
Interest Statement and Disclosure Statement. (Rev. 5/13/99)
34. Antitrust
---------
The Contractor assigns to the Board its right, title and interest in and to
any claim or cause of action arising under the antitrust laws of New York
State or the United States relating to the goods or Services purchased or
procured by the Board pursuant to this Agreement.
35. Merger and Choice of Law
------------------------
This written Agreement constitutes the entire agreement of the parties, and
no other prior or contemporaneous agreement, oral or otherwise, regarding
the subject matter of this Agreement shall be deemed to exist or bind any
of the parties hereto, or to vary any of the terms contained herein. This
Agreement shall be governed and construed in accordance with the laws of
the State of New York without regard to its conflict of law rules.
36. Participation in an International Boycott
-----------------------------------------
A. The Contractor agrees that neither it nor any substantially-owned
affiliated company is participating or shall participate in an
international boycott in violation of the provisions of the Export
Administration Act of 1979, as amended, or the regulations of the
United States Department of Commerce promulgated thereunder.
B. Upon the final determination by the Commerce Department or any other
agency of the United States that the Contractor or a
substantially-owned affiliated company thereof, participated, or is
participating, in an international boycott in violation of the
provisions of the Export Administration Act of 1979, as amended, or
the regulations promulgated thereunder, the Chancellor or his designee
may, at his option, render forfeit and void this contract. (1/12/89)
<PAGE>
16
37. No Discrimination
-----------------
A. The Contractor will strictly comply with all applicable Federal, State
and local laws pertaining to the subject of discrimination on any
ground, as they may now read or as they may hereafter be amended.
B. The Contractor is, and will remain, an Equal Opportunity Employer. In
addition to the other requirements of this paragraph 37, the
Contractor shall provide equal opportunity for all qualified persons,
and shall not discriminate in employment because of race, creed,
gender, color, age, sexual orientation, national origin, handicapping
condition, marital status, or religion and shall promote the full
realization of equal opportunity. (Rev. 9/20/88)
C. Pursuant to the provisions of the New York State Labor Law, the
Contractor agrees, in its operations performed within the State of New
York:
(1) That in the hiring of employees for the performance of work under
this contract 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;
(2) That no contractor, subcontractor, nor any person on his behalf
shall, in any manner, discriminate against or intimidate any
employee hired for the performance of work under this contract on
account of race, creed, color, sex or national origin;
(3) That there may be deducted from the amount payable to the
contractor by the state or municipality under this contract a
penalty of five dollars for each person for each calendar day
during which such person was discriminated against or intimidated
by the contractor or subcontractor, or anyone acting on behalf of
the contractor in violation of the provisions of the contract;
(4) That this contract may be cancelled or terminated by the state or
municipality, and all moneys 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 contract;
(5) 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; and
<PAGE>
17
(6) That the Board is, for purposes of this subparagraph C., a "state
or municipality." (Rev. 11/25/96)
38. Equal Employment Opportunity Requirements for Professional Contractors
----------------------------------------------------------------------
A. Definition of Terms for the Implementation of a Program of
Affirmative Action.
The following terms, when used in this paragraph, shall have the
meanings given for them.
(1) "Employee": Any person employed full or part-time in any capacity
----------
by the Contractor or sub-contractor.
(2) "Minority Groups and Affected Classes": Blacks, Hispanics
------------------------------------------
(Non-European), Asian Americans, American Indians, females and
individuals with handicapping conditions.
(3) "Program of Affirmative Action": A detailed, result-oriented set
-------------------------------
of written procedures submitted by a Contractor or sub-contractor
which when implemented with conscious effort results in
compliance with the Equal Opportunity Policy herein, through full
utilization and equal treatment of minorities, women and
individuals with handicapping conditions at all levels and in all
segments of the Contractor's or sub-contractor's work force. An
effective Program of Affirmative Action shall include but not
necessarily be limited to, the following elements: (Rev. 9/20/88)
(a) Development or reaffirmation of the Contractor's or
sub-contractor's Equal Opportunity Policy;
(b) Dissemination of the Policy;
(c) Responsibility for implementation;
(d) A survey and analysis of employment at all levels and in all
categories and aspects of the Contractor's or
sub-contractor's work force, which determines if and at
which levels, categories, and aspects there is an
underutilization of minority and female employees;
(e) An analysis of employment policies and practices, including
but not limited to seniority systems, recruitment, training,
promotion, insurance and job benefits and their effects upon
minorities, women and individuals with handicapping
conditions;
<PAGE>
18
(f) Corrective actions taken, or to be taken, toward the
elimination of any employment policy or practice having a
discriminatory effect on minority group members and women;
and
(g) Description of the Contractor's efforts to engage, as
sub-contractors, bona fide minority business enterprises and
female enterprises.
(4) "Goals and Timetables": Projected levels of achievement resulting
----------------------
from an analysis by the Contractor or sub-contractor of its
deficiencies, and of what it can reasonably do to remedy them
within a specified time period.
(5) "Underutilization": Having fewer minorities, women and
------------------
individuals with handicapping conditions in a particular job
classification than would reasonably be expected by their
availability in the appropriate labor force.
(6) "The Office": The Office of Equal Opportunity of the Board.
------------
B. Required Program of Affirmative Action
--------------------------------------
(1) The Contractor is required to identify and eliminate overt and covert
discriminatory practices and implement the Program of Affirmative
Action. Upon demand of the Office the Contractor shall submit to the
Office a detailed written Program of Affirmative Action (hereinafter
referred to as a "P.A.A."). In the event the Contractor submits a
P.A.A. not acceptable to the Office, the Office will require the
correction or revision of the P.A.A. to its satisfaction.
(2) In the event the Contractor fails to submit such an acceptable P.A.A.
within the time specified in the demand, the Contractor may be
declared in default. The Director shall be the sole judge of the
P.A.A.'s acceptability. The P.A.A. shall:
(a) Apply to all Board of Education professional services contracts
with the Contractor;
(b) Encompass all phases of the employment process, including
evaluation of job classification to ensure job relatedness,
recruitment, selection, validity of examinations, retention,
layoffs, seniority, assignments, training, promotion, salary and
benefits;
<PAGE>
19
(c) Fulfill the following requirements:
(i) Include measurable goals, reasonable timetables and specific
programs to be implemented by the contractor to identify and
eliminate deficiencies in employment practices with respect
to the underutilization of members of minority groups and
members of affected classes;
(ii) Include a statement of the present utilization of minority
group members and women in the Contractor's work force and a
projection of the minority utilization in the Contractor's
work force for the life of the Contract and for at least a
one-year period succeeding its completion. This statement
and projection shall include present and projected (1) rates
of hiring and promotion of minority group members and women
in specific job categories at each wage rate within each
level of employment and according to major organizational
unit, and (2) percentages of minority group and women
utilization in specific job categories at each wage rate
within each level of employment, and according to major
organizational work force;
(iii)Include all of the Contractor's facilities within New York
City as well as those facilities located elsewhere within
the continental limits of the United States;
(iv) Specify the union(s) or other employee organizations to
which the Contractor's employees belong, and shall include
commitments to good faith efforts to effect Equal
Opportunity changes directly or indirectly, in programs by
such unions or organizations to recruit, train, qualify or
otherwise select members, if such changes are deemed
necessary. The P.A.A. shall also include a copy of any
agreement with an employee association which affects
employment policies and practices;
(v) Be submitted in such format as shall be specified by the
Director of the Office;
(vi) Include a commitment to submit to the Director a separate
P.A.A., of the form (i) to (v) hereof, for each
subcontractor prior to approval of the subcontractor by the
Board of Education;
<PAGE>
20
(vii) Include a written evidence or proof which shows that
minority entrepreneurs have been solicited and given an
equal opportunity to submit proposals and that such
proposals have been given equal consideration for award;
(viii) Contain commitments as to goals for minority and affected
classes employment and adoption of equal employment
practices not less strict than the commitments contained
in the Contractor's most recent P.A.A. which was approved
by the Office.
C. Compliance Inspection Report
----------------------------
Upon demand of the Office the Contractor shall, within the specified time,
submit to the Office a Compliance Inspection Report. The completed
Compliance Inspection Report must be returned to the Office within such
time as is specified in the requisition for information accompanying the
report form.
D. Conferences
-----------
The Contractor shall attend such conferences as shall be required by the
Office for the purpose of acquainting it with the statutory and contractual
requirements and what specific measures shall constitute an acceptable
P.A.A.
E. Implementation of P.A.A.
------------------------
During the Term of the Contract, the Contractor shall successfully
implement the P.A.A. approved by the Office.
F. Board of Review
---------------
If, in the opinion of the Office the Contractor has breached any of the
requirements of paragraphs 36 or 37 hereof it may seek to have the
Contractor declared in default by the Board of Review as provided elsewhere
herein. (Rev. 8/84)
For further information concerning these rules, regulations or procedures,
contractors may consult with the Office of Equal Opportunity of the Board.
<PAGE>
21
39. MacBride Principles Provisions for Board of Education Contractors
-----------------------------------------------------------------
ARTICLE I. MACBRIDE PRINCIPLES
PART A
In accordance with section 6-115.1 of the Administrative 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 interest in the Contract either (a) have
no business operations in Northern Ireland, or (b) shall take lawful steps
in good faith to conduct any business operations they have in Northern
Ireland in accordance with the MacBride 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:
"MacBride Principles" shall mean those principles relating to
nondiscrimination in employment and freedom of workplace opportunity which
require employers doing business in Northern Ireland to:
(1) increase the representation of individuals from underrepresented
religious groups in the work force, including managerial, supervisory,
administrative, clerical and technical jobs;
(2) take steps to promote adequate security for the protection of
employees from underrepresented religious groups both at the workplace
and while traveling to and from work;
(3) ban provocative religious or political emblems from the workplace;
(4) publicly advertise all job openings and make special recruitment
efforts to attract applicants from underrepresented religious groups;
(5) establish layoff, recall and termination procedures which do not in
practice favor a particular religious group;
(6) abolish all job reservations, apprenticeship restrictions and
different employment criteria which discriminate on the basis of
religion;
<PAGE>
22
(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
further advancement; and
(9) appoint a senior management staff member to oversee affirmative action
efforts and develop a timetable to ensure their full implementation.
ARTICLE II. ENFORCEMENT OF ARTICLE I.
The Contractor agrees that the covenants and representations in Article I
above are material conditions to this Contract. In the event the
contracting entity receives information that the Contractor who made 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 either itself
or by engaging another contractor or contractors. In the case of a
requirements contract, the 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 fight 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.
(8/92)
40. Set-Off Rights
--------------
The Board shall have all of its common law, equitable and statutory rights
of set-off. These rights shall include, but not be limited to, the Board's
option to withhold for the purposes of set-off any moneys due and owing to
the Board with regard to this Agreement, any other agreement with the
Board, including any agreement for a term commencing prior to the term of
this Agreement, plus any amounts due and owing to the Board for any other
reason. The Board shall exercise its set-off rights in accordance with
normal Board practices including, in cases of set-off pursuant to an audit,
<PAGE>
23
the finalization of such audit by the Board, its representatives, or the
State or City Comptroller. (1/95)
41. Non-Collusive Bidding
---------------------
If this Agreement was awarded by the Board based upon the submission of
bids or proposals, Contractor warrants under penalty of perjury, that its
bid or price quotation was arrived at independently and without collusion
aimed at restricting competition. (10/92)
42. Non-Bidders Provision: Burma
----------------------------
ARTICLE I
PART A
In accordance with Section 6-115 of the Administrative Code of the City of
New York, the Contractor hereby covenants and represents:
(1) That the Contractor and its affiliates shall not during the term of
this contract sell or agree to sell goods or services directly to
Burma, the Government of Burma, or to any entity owned or controlled
by the Government of Burma;
(2) In the case of a contract to supply goods, that none of the goods to
be supplied to the City originated in Burma;
(3) That the Contractor and its affiliates do not do business in Burma or
that the Contractor and its affiliates are actively engaged in the
withdrawal of their operations from Burma and will have completed such
withdrawal within six months, provided, however, that if the
Contractor and its affiliates have withdrawn or are so engaged in
withdrawing their operations from Burma and maintain a presence in
Burma after such six month period solely for the purpose of
liquidating their business, they shall not be ineligible for that
reason to make the certification provided for in this Part;
(4) That, except as provided in section 6 of this Part, the Contractor
shall not make new investments in Burma, and that if at any time
during the course of the contract the Contractor acquires an entity
which is doing business in Burma, the Contractor shall initiate
withdrawal of its acquisition's operations from Burma;
(5) That, except as provided in section 6 of this Part, the Contractor
shall not enter into any new agreement with a Burmese entity allowing
the use of its trademark, copyright or patent by such entity;
furthermore, that it does not provide goods or services to any Burmese
entity pursuant to any non-equity agreement;
<PAGE>
24
(6) That the provisions of sections 4 and 5 concerning investments,
agreements concerning trademarks, copyrights and patents, any
non-equity agreements shall not apply to ownership of or agreements
with entities whose presence in Burma is for the following purposes:
(i) the activities of religious, educational or charitable
organizations; (ii) activities intended to promote the exchange of
information, including the publication or sale of newspapers,
magazines, books, films, television programming, photographs,
microfilm, microfiche and similar materials; (iii) the gathering or
dissemination of information by news media organizations; and (iv) the
providing of telecommunications and mail services not involving the
sale or leasing of equipment;
PART B
The following provision applies only to contracts for the supply of motor
vehicles, heavy equipment, electronic data processing equipment and
software, copying machines and petroleum products:
In order for the Contractor to be eligible to sign this rider, the
Contractor must either certify or provide a certification to the Department
from the manufacturer or refiner of the product to be supplied to the City
that such manufacturer or refiner and its affiliates are in compliance with
the terms set forth in Article I and II of this rider. Any such Contractor
who signs this rider shall be deemed to be certifying with respect to such
supplier or refiner unless such Contractor attaches to the contract a
separate copy of this rider signed by such manufacturer or refiner. For the
purposes of the certification made by or with respect to such refiner or
manufacturer, the term "Contractor" as used in Articles I and II shall be
deemed to refer to such manufacturer or refiner.
PART C
For purposes of this provision, the following terms shall have the
following meanings:
(1) An entity shall be considered to have "withdrawn its operations from
Burma" if:
(a) it does maintain any office, plant or employee in Burma other
than for the following purposes: (i) the activities of religious,
educational or charitable organizations; (ii) activities intended
to promote the newspapers, magazines, books, films, television
programming, photographs, microfilm, microfiche, and similar
materials; (iii) the gathering or dissemination of information by
news media organizations; and (iv) the providing of
telecommunications and mail services not involving the sale of
leasing of equipment;
(b) it has no investments in Burma; and
<PAGE>
25
(c) it does not provide goods or services to any Burmese entity
pursuant to any non-equity agreement.
(2) "Affiliates" of a Contractor shall mean the parent company of the
Contractor, and any subsidiaries of the parent company, and any
subsidiaries of the Contractor.
(3) "Parent company" shall mean an entity that directly controls the
Contractor.
(4) "Subsidiary" shall mean an entity that is controlled directly, or
indirectly through one or more intermediaries, by a Contractor or the
Contractor's parent company.
(5) "Control" shall mean holding five percent or more of the outstanding
voting securities of a corporation, or having an interest of five
percent or more in any other entity.
(6) "Entity" shall mean a partnership, association, joint venture,
company, corporation or any other form of doing business.
(7) "Burmese entity" shall mean an entity organized in Burma, or a branch
or office in Burma of an entity which is domiciled or organized
outside Burma.
(8) "Investment" shall mean the beneficial ownership or control of a
controlling interest in a Burmese entity, but shall not include the
purchase of securities of a Burmese entity for a customer's account.
(9) "Non-equity agreement" shall mean a license, franchise, distribution
or other written agreement pursuant to which an entity provides
management, maintenance, or training services directly to a Burmese
entity, or supplies goods directly to a Burmese entity for
distribution by such Burmese entity, or for use as component parts in
the manufacture of other goods by such Burmese entity. In addition, a
"non-equity agreement" shall mean an original equipment manufacturer
agreement ("O.E.M. agreement") for equipment sole by a manufacturer of
computers, copiers, or telecommunications equipment, which provides
for or authorizes the sale of such equipment, alone or as part of a
finished product, to a Burmese entity.
ARTICLE II: PROVISIONS RE: SECTION 138 OF THE CUSTOMS AND
TRADE ACT OF 1990
The Contractor hereby covenants and represents that it and its affiliates
have not within the twelve months prior to the award of such contract
violated, and shall not during the period of this contract violate, the
provisions of any sanctions imposed pursuant to Section 138 of the Customs
and Trade Act of 1990 respecting business activity in Burma.
<PAGE>
26
ARTICLE III: ENFORCEMENT OF ARTICLES I AND II
A. The Contractor agrees that the covenants and representations in
Article I above are material conditions of this contract. In the event
the Department receives information that the Contractor, or a
manufacturer or refiner subject to such provisions in accordance with
Part B of Article I, is in violation of the provisions of such
Article, the Department shall review such information and give the
Contractor and any such manufacturer or refiner an opportunity to
respond. If the Department finds that a violation has occurred, the
Department shall have the right to terminate this contract and procure
the supplies, services or work from another source in any manner the
Department deems proper. In the event of such termination, the
Contractor shall pay to the Department, or the Department 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 Department of
completing performance of this contract either itself or by engaging
another contractor or contractors. In the case of a requirements
contract, the Contractor shall be liable for such difference in price
for the entire amount of supplies required by the Department for the
uncompleted term of this contract. In the case of a construction
contract, the Department shall also have the right to hold the
Contractor in partial or total default in accordance with the default
provisions of this contract. The rights and remedies of the Department
hereunder shall be in addition to, and not in lieu of, any rights and
remedies the Department has pursuant to this contract or by operation
of law.
B. Upon a final determination by the United States Department of Commerce
or any other agency of the United States or a court that the
Contractor or a manufacturer or refiner subject to the provisions of
Article II pursuant to the provisions of Part B of Article I, or any
affiliate of the Contractor or such a manufacturer or refiner, has
violated any provision of any sanctions imposed under Section 138 of
the Customs and Trade Act of 1990 respecting business activity in
Burma, the Department shall have the right to terminate this contract
and procure the supplies, services or work from another source in any
manner the Department deems proper. In the event of such termination,
the Contractor shall pay to the Department, or the Department 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 Department of
completing performance of this contract either itself or by engaging
another contractor or contractors. In the case of a requirements
contract, the Contractor shall be liable for the difference in price
for the entire amount of supplies required by the Department for the
uncompleted term of this Contract. In the case of a construction
contract, the Department shall also have the right to hold the
Contractor in partial or total default in accordance with the default
provisions of this contract. The rights and remedies of the Department
hereunder shall be in addition to, and not in lieu of, any rights and
<PAGE>
27
remedies the Department has pursuant to this contract or by operation
of law. (11/13/97)
43. Year 2000 Compliance Required
-----------------------------
Year 2000 compliant means information technology that accurately processes
date/time data (including, but not limited to, calculating, comparing, and
sequencing) from, into, and between the twentieth and twenty-first
centuries, and the years 1999 and 2000 and leap year calculations.
Furthermore, Year 2000 compliant information technology, when used in
combination with other information technology, shall accurately process
date/time data if the other information technology properly exchanges
date/time data with it.
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 maintenance obligations Contractor
shall consult with the Board 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, 2000 and (ii) be interoperable
with other technology used by the Board which may deliver records,
receive records from or otherwise interact with such technology in the
course of the Board's data processing.
B. All technology heretofore provided or specified to the Board by
Contractor whether hereunder or under 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 September 30,1998 without
incremental charge therefor. (1/12/98)
44. Fair and Ethical Business Practices
-----------------------------------
A. Fair and Ethical Business Practices shall be strictly adhered to
during the term of this Agreement. During the term of this Agreement,
Contractor shall not:
(1) File with a government office or employee, a written instrument
which intentionally contains a false statement or false
information;
(2) Intentionally falsify business records;
(3) Give, or offer to give, money, gifts or anything of value or any
other benefit to a labor official or public servant with intent
to influence that labor official or public servant with respect
<PAGE>
28
to any of his or her official acts, duties or decisions as a
labor official or public servant;
(4) Give or offer to give, money, gifts or anything of value or any
other benefit to a labor official or public servant for any
reason;
(5) Give, or offer to give, money, gifts or other benefit(s) to an
official or employee of a private business with intent to induce
that official or employee to engage in unethical or illegal
business practices;
(6) Knowingly participate in the criminal activities of any organized
crime group, syndicate or "family," nor shall any person employed
by or associated with any such organized crime "family,"
syndicate or group participate through criminal means in any of
the business affairs of Contractor.
B. Contractor certifies throughout the term of this Agreement, that there
have been no changes in circumstances, conditions or status of
Contractor's qualification(s) as reflected in Contractor Questionnaire
or other such documents submitted to the Board. Any change in the
information provided by Contractor in its questionnaire currently on
file with the Board must be immediately reported to the Board. In
addition, Contractor shall immediately notify the Board of any of the
following events if it becomes known that any director, partner,
officer, member or employee of Contractor, or any shareholder owning
5% of more of Contractor's membership interests:
(1) is the subject of investigation involving any violation of
criminal law or other federal, state or local law or regulation
by any governmental agency; or
(2) is arrested, indicted or named as an unindicted co-conspirator in
any indictment or other accusatory instrument; or
(3) is convicted of any felony under state or federal law and/or any
misdemeanor involving a business-related crime. (10/8/98)
<PAGE>
BOARD OF EDUCATION - DIVISION OF SCHOOL FACILITIES
RS - 29 FORM OF CONTRACT
------------------------
ATTACHMENT E
THE BOARD OF EDUCATION
OF THE CITY OF NEW YORK
REQUIREMENT/SERVICE CONTRACT
For
all the work to be performed at_________________________________________________
in accordance with Specification #______________________________________________
THIS AGREEMENT, made and entered into the _____day of _______________, in the
year nineteen hundred and __________________________________
BETWEEN
THE BOARD OF EDUCATION OF THE CITY OF NEW YORK,
party of the first part
AND (CORPORATION)
________________________________________________________________________________
a corporation organized and existing under the laws of the State of ____________
and licensed to do business in the State of New York
OR (PARTNERSHIP)
______________________________________ AND _____________________________________
co-partners doing business under the form name and style of
________________________________________________________________________________
OR (INDIVIDUAL)
________________________________________________________________________________
doing business under the assumed name and style of
________________________________________________________________________________
party of the second part.
Revised November 1, 1996 -1- RS-29
<PAGE>
WITNESSETH
That pursuant to all State and local Laws and all By Laws, resolutions, rules
and regulations of THE BOARD and THE CITY and its various departments,
applicable to this contract, and in consideration of the agreements hereinafter
undertaken by each of the parties hereto with the other, the parties hereto, do
hereby covenant and agree for their respective successors and legal
representatives as follows:
DEFINITIONS
-----------
ARTICLE 1. The following words and expressions or pronouns used in their stead,
- ---------
shall wherever they appear in this contract be construed as follows unless a
different meaning is clear from the context:
(a) "THE BOARD" means the Board of Education of the City of New York and the
party of the first part to this Contract.
(b) "THE CONTRACTOR" means the party of the second part to this Contract.
(c) "THE DIRECTOR" means the Director of the Division of School Facilities, or
other person delegated by The Chancellor to supervise the work of this
Contract.
(d) "THE CONTRACT COMPLIANCE OFFICER" means the person delegated by the Board
of Education to administer the implementation of Article 64.
(e) "THE CITY" means the City of New York.
(f) "THE COMPTROLLER" and "THE TREASURER" means the Comptroller and the
Treasurer of the City of New York, respectively.
(g) "OTHER CONTRACTOR" means any contractor (other than the party of the second
part of this Contract) who has a contract with THE BOARD for work on the
building or site.
(h) "THE CHANCELLOR", "THE SECRETARY", "ASSISTANT SECRETARY", and
"ADMINISTRATOR OF BUSINESS AFFAIRS" means the following officers and
employees of THE BOARD, respectively: the Chancellor, the Secretary,
Assistant Secretary and Administrator of Business Affairs.
(i) "APPROVED," "DIRECTED," "DEEMED NECESSARY" unless otherwise expressed means
approved, directed or deemed necessary, as the case may be, by THE
DIRECTOR.
(j) "DRAWINGS" means the contract drawings of this work and all detail drawings
furnished by THE DIRECTOR pertinent or supplemental thereto.
Revised November 1, 1996 -2- RS-29
<PAGE>
(k) "WORK" or "WORKS" means all labor, materials, equipment, matters and things
herein agreed to be furnished or done by or on the part of THE CONTRACTOR.
(l) "MATERIALS" means all material of any kind, nature and class as may be
specified which becomes a part of or is used in the performance of the work
together with all manufactured or prepared materials, articles,
accessories, appliances, appurtenances and parts used therein or placed
thereon.
(m) "COMPLETION" means full and complete compliance with every requirement of
the contract as attested by THE DIRECTOR.
(n) "SPECIFICATIONS" means the combined Instructions to Bidders, Standard and
Schedule Specification and amendments thereto and all the directions and
requirements applying to the work as hereinafter detailed and designated
under specifications. The Standard Specifications are set forth in a
document separate and apart from the document which includes the Schedule
Specifications.
(o) "CONTRACT", as defined in Article 8.
ARTICLE 2. The residence or place of business given in the bid upon which
- ---------
this contract is founded is hereby designated as the place where all notices,
letters and other communications addressed to THE CONTRACTOR shall be served,
mailed or delivered. Any notice, letter or other communication addressed to THE
CONTRACTOR and delivered at the above-named place, or deposited in a post-paid
wrapper in any post-office box regularly maintained or authorized by the post
office, shall be deemed sufficient service thereof upon and notice to THE
CONTRACTOR. The place named may be changed at any time by an instrument in
writing, executed and acknowledged by THE CONTRACTOR and delivered to THE
DIRECTOR. Nothing herein contained shall be deemed to preclude or render
inoperative the service of any notice, letter or other communication upon THE
CONTRACTOR personally.
ARTICLE 2A. 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.
SCOPE
-----
ARTICLE 3. THE CONTRACTOR shall and will, well and sufficiently, furnish and
- ---------
provide all the work and materials necessary or proper in, toward, or about the
said contract according to the several plans and drawings prepared therefor, and
the specifications, amendments and addenda herein contained or hereunto annexed,
and such other work and materials as may be necessary or as are usually
performed and furnished in connection with the above-mentioned work, so as to
finish said work in a first class workmanlike manner, complete and perfect in
Revised November 1, 1996 -3- RS-29
<PAGE>
every respect, to the satisfaction of THE DIRECTOR and THE BOARD, for the sum
herein agreed to be paid at the times and in the manner herein specified.
ARTICLE 4. THE CONTRACTOR shall provide and furnish, at THE CONTRACTOR's own
- ---------
cost and expense, any and all manner of materials, equipment, labor,
scaffolding, tools, implements, molds, models, and cartage of every description
necessary or proper to or for the due and faithful performance of said work, and
the true and faithful execution of this contract.
ARTICLE 5. THE CONTRACTOR shall not have work performed, nor shall he employ
- ---------
labor or means, in the carrying out of this contract that would in any way cause
or result in a suspension, or delay of, or strike upon the work to be performed
hereunder of any of the trades working in or about the premises herein
described, or in or about any other building of THE BOARD or working upon any of
the premises of THE CITY.
ARTICLE 6. THE DIRECTOR shall in all cases determine the amount, quality,
- ---------
acceptability and fitness of the several kinds of work and materials performed
and delivered, which are to be paid for under this contract, and he shall
determine all questions in relation to the work and the methods to be adopted
and shall in all cases determine every question which may arise relative to the
fulfillment of this contract, and his estimate and decision shall be final,
conclusive and binding upon THE CONTRACTOR. THE DIRECTOR may delegate, in
writing, powers to the Director of the Office of Plant Operation, Engineering &
Maintenance, or the Deputy Director for Maintenance, or any area manager of the
said Office. THE DIRECTOR may delegate powers to inspectors or other employees
of THE BOARD, but no decision or statement made by such inspector or other
employee affecting the extent of the work of this contract or the price to be
paid therefor, or the terms of the contract, shall be authoritative unless
issued in writing by THE DIRECTOR or by THE BOARD.
ARTICLE 7. If before the final completion of all the work of this contract,
- ---------
it is deemed necessary by THE BOARD to take over, use, occupy or operate any
part of the completed or partly completed work, THE BOARD shall have the right
to do so and THE CONTRACTOR will not in any way interfere with or object to the
use, occupation or operation of such work by THE BOARD.
DRAWINGS AND SPECIFICATIONS
---------------------------
ARTICLE 8. The materials and labor to be furnished shall in every respect
- ---------
conform strictly to the specifications, amendments and addenda herein contained
or hereto annexed and to the plans and drawings herein mentioned, all of which,
together with the advertisement for bids for this contract, the Instructions to
Bidders, and the bid for the work herein contracted for including any and all
additions to and modifications in any of the same issued and approved by THE
BOARD, are hereby declared to form and hereby made part of this contract.
Revised November 1, 1996 -4- RS-29
<PAGE>
ARTICLE 9. The plans, drawings and specifications hereinbefore mentioned are
- ---------
intended to be fully inclusive and co-extensive, so that any matter or thing
contained in and shown by one and not by the other shall be of the same effect
as if contained in and shown by all, and shall be performed and furnished by THE
CONTRACTOR without any extra charge, claim or demand whatsoever.
ARTICLE 10. THE CONTRACTOR shall finish and fully complete the whole of the
- ----------
work in a manner described and shown in said specifications and by said plans
and drawings and in accordance with such supplemental detail drawings as the
specifications may require THE CONTRACTOR to furnish, when same have been duly
approved by THE DIRECTOR, and in accordance with such further details and
instructions as the said Director may from time to time furnish or issue for the
purpose of insuring the thorough completion of the work in the most efficient
manner.
ARTICLE 11. Wherever any article or any class of materials is specified by
- ----------
the trade name or the name of any particular patentee, manufacturer or dealer,
or by reference to the catalogue of any such manufacturer or dealer, it shall be
taken as intended to mean and specify the articles or materials described or any
other equal thereto in quality, finish and durability, and equally as
serviceable for the purpose for which it is or they are intended, as may be
judged and determined by THE DIRECTOR.
DELIVERY OF COMPLETION
----------------------
ARTICLE 12. The Contractor shall deliver the supplies and services called for
- ----------
in the specifications within the period of the contract and within the delivery
time specified on the order or written request, which delivery shall be in
accordance with the terms of the contract, the specifications or instructions to
bidders.
ARTICLE 13. If separate contracts shall be awarded to different contractors
- ----------
for furnishing materials or performing work on one building project, each
contractor must begin work when the site, building or location is ready for his
work to proceed and he must coordinate his work with that of other contractors
and must carry on his work in such order and manner and at such times so that
the entire work of all contractors may be completed within the time specified.
ARTICLE 14. When THE CONTRACTOR has been delayed and cannot, in the opinion
- ----------
of THE DIRECTOR, make up for such delay by speedier work, THE CONTRACTOR may be
granted an extension of time, as determined by THE BOARD, for the time that he
was actually and necessarily delayed by one of the following causes:
(a) Any act or omission of THE CITY or THE BOARD; or for the reason that THE
CITY or THE BOARD does not own or has not obtained possession of, or the
right to enter upon the land upon which the work is to be performed; or by
action of THE BOARD suspending part of the work specified, should THE BOARD
deem it necessary to do further work in or about the premises than is
provided in this contract.
Revised November 1, 1996 -5- RS-29
<PAGE>
(b) Act or omissions of other contractors, other than necessary normal
interruptions, as described in Article 15.
(c) Labor strikes not caused or instituted or provoked by THE CONTRACTOR or by
any of his subcontractors, agents or representatives.
(d) Emergency conditions delaying or making performance temporarily impossible
or illegal.
(e) Abnormal weather as will be more particularly set forth in the second and
third paragraph of Article 15.
ARTICLE 15. If other contracts are entered into by THE BOARD for performance
- ----------
of other work on the site of this contract, THE CONTRACTOR will not be entitled
to any extension of time because of the necessary suspensions of and normal
interruptions to his work, required to enable the other contractors to perform
their work on the site, as such interruptions to or suspensions of his work were
taken into consideration in fixing the time for completion.
In fixing the time for completion, proper consideration was given to delays
occasioned by a reasonable or normal amount of adverse weather.
However, THE CONTRACTOR may submit for consideration of THE BOARD a request for
extension of time based on excessive delays or interruptions in his work due to
other contractors or abnormal weather, but such requests will not be considered
unless THE CONTRACTOR submits complete data, which shall include the status of
the work when the claimed delays occurred, the reason for this delay, proof as
to what extent the entire job was held up by each particular delay, and, if
weather conditions are involved, data from the U.S. Weather Bureau for current
and past years showing recorded weather conditions.
ARTICLE 16. THE CONTRACTOR agrees to make no claim for damages for the delay
- ----------
in the performance of this contract occasioned by any act or omission to act of
THE BOARD, THE CITY, or any of their 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.
Neither an extension of time for any reason beyond the date fixed herein for the
completion of the contract, nor the delivery and acceptance of any articles or
materials, nor the performance of any work called for by this contract after the
date aforesaid or after the date fixed by any extension of time for completion
of the work hereunder shall be deemed a waiver by THE BOARD of the right to
abrogate this contract for abandonment or delay, or of the right to enforce the
other provisions of this contract, and such extension shall not be deemed an
admission by THE BOARD or by THE CITY that either was responsible for any delay
whatever.
Revised November 1, 1996 -6- RS-29
<PAGE>
DAMAGES FOR DELAY
-----------------
ARTICLE 17. If provided for in the specifications, liquidated damages for
- ----------
failure to begin or to complete the work in compliance with the terms of this
Agreement shall be assessed against the Contractor in accordance with said
provisions. In view of the difficulty of accurately ascertaining the loss which
The Board of Education will suffer because of failure to perform and/or complete
the work of this contract, liquidated damages, in the amount set forth in the
specifications, are fixed and agreed upon as such liquidated damages and not as
a penalty.
The Board and the Comptroller will deduct and retain out of the monies which may
become due under this contract the amount of any such liquidated damages. In
case the amount which may become due is less than the damage suffered by the
Board, the Contractor will be liable to pay the difference upon demand by the
Board.
Liquidated damages received hereunder are not intended to be nor shall they be
treated as either a partial or full waiver of the Board's right to
indemnification or to any other remedy provided for by the contract or by law.
Liquidated damages for failure to commence the work at the time specified in
each proceed order, or for failure to complete the work within the time
specified in each proceed order, if the unit does not function properly after
repair, it will be considered that the CONTRACTOR did not complete the work
within the time specified or for delay of the completion of the work as
described in the proceed order, shall be in an amount of no less than 5% of the
value of the proceed order per day.
ARTICLE 18. (No Text)
- ----------
ARTICLE 19. (No Text)
- ----------
ARTICLE 20. (No Text)
- ----------
DEFAULT
-------
ARTICLE 21. THE BOARD shall have the right to declare THE CONTRACTOR in
- ----------
default on the whole or any part of the work
1. if THE CONTRACTOR becomes insolvent; or if THE CONTRACTOR makes an
assignment for the benefit of creditors pursuant to the Statutes of the
State of New York; or in a voluntary or involuntary petition in bankruptcy
be filed by or against THE CONTRACTOR; or if a receiver or receivers are
appointed to take care of THE CONTRACTOR's property or affairs; or
2. if THE CONTRACTOR sublets, assigns, transfers, conveys or otherwise
disposes of this contract other than as herein specified; or
Revised November 1, 1996 -7- RS-29
<PAGE>
3. if THE CONTRACTOR fails to commence work when notified to do so by THE
DIRECTOR or if THE CONTRACTOR shall abandon the work; or if THE CONTRACTOR
refuses to proceed with the work when and as directed by THE DIRECTOR; or
4. if at any time THE DIRECTOR is of the opinion and shall so certify in
writing to THE BOARD that
(a) THE CONTRACTOR is or has been willfully or in bad faith violating any
of the provisions of this contract, or that
(b) the work is not or cannot be substantially completed within the time
herein provided therefor; provided, however, that the possibility of
timely completion is, in THE DIRECTOR's opinion, attributable to
conditions within THE CONTRACTOR's control, or that
(c) THE CONTRACTOR has not maintained a working force sufficient to
complete the work within the contract time, or to complete the entire
contract within a reasonable time thereafter, and has failed to
increase his force when ordered to do so by THE DIRECTOR.
(d) THE CONTRACTOR is or has been unnecessarily or unreasonably or
willfully delaying the performance and completion of the work, or the
award of necessary subcontracts, or the placing of necessary material
and equipment orders.
ARTICLE 22. THE BOARD will declare THE CONTRACTOR to be in default under the
- ----------
provisions of Article 21 by having served upon THE CONTRACTOR a notice from the
Secretary of THE BOARD signed by the Secretary or Assistant Secretary indicating
that THE CONTRACTOR has been declared in default by the Board of Review acting
for the Chancellor under delegation of authority. THE BOARD shall thereupon have
the power to take immediate possession of and use such materials, molds, models,
centers, scaffolding, planks, horses, derricks, tackle, tools, implements, power
plants as may be found upon the premises and line of work and the same shall not
be removed so long as the same may be needed for the work.
Upon a finding of default in violation of this contract by the Board of
Education's Board of Review, the contractor shall be deemed not responsible and
disqualified from bidding for a period of four years, unless in such finding of
default, a lesser penalty is imposed by reason of mitigating circumstances.
ARTICLE 23. In case THE BOARD shall declare THE CONTRACTOR in default as to a
- ----------
part of the work only, THE CONTRACTOR shall discontinue such part and shall in
no wise hinder or interfere with any other contractors or persons whom THE BOARD
may engage to complete such part of the work. THE CONTRACTOR shall continue
performing the remainder of the work in conformity with the terms of the
contract.
All provisions of this contract relating to declaring THE CONTRACTOR in default
Revised November 1, 1996 -8- RS-29
<PAGE>
as to the entire work shall be equally applicable to a declaration of partial
default, except that THE BOARD shall be entitled to utilize for completing such
part of the work only the plant, materials, equipment, tools and supplies used
or intended to be used by THE CONTRACTOR on such part.
ARTICLE 24. The BOARD, after declaring THE CONTRACTOR in default, may direct
- ----------
The CONTRACTOR's surety, if there be one, to complete the contract in accordance
with the terms of the Performance Bond. If the surety shall fail to complete the
contract, or if there be no Surety required under the terms of the
specification, The Board may have the work completed by such means and in such
manner, by contract with or without public letting, or otherwise, utilizing for
such purpose such of the plant, materials, equipment tools and supplies
remaining on the site, as it may deem advisable.
ARTICLE 25. (No Text)
- ----------
ARTICLE 26. The expense of such completion, as so certified by THE DIRECTOR,
- ----------
shall be charged against and deducted out of such monies as would have been
payable to THE CONTRACTOR if he had completed the work; the balance of such
monies, if any, subject to the other provisions of this contract, to be paid to
THE CONTRACTOR without interest after such completion. Should the expense of
such completion, so certified by THE DIRECTOR, exceed the total sum which would
have been payable under the contract if the same had been completed by THE
CONTRACTOR, any such excess shall be paid by THE CONTRACTOR to THE BOARD. Any
such excess may also be deducted from monies due to the contractor on any other
Board contracts.
INSPECTION, IMPROPER WORK, ETC.
------------------------------
ARTICLE 27. The work, materials, supplies, and services hereby required shall
- ----------
be performed and furnished according to the directions and under the supervision
of The Director, subject to the provisions herein contained. Every member of The
Board, the representative of The Comptroller and of the Commissioner of
Investigation of The City, shall have a right at all times to visit and inspect
the said work during the progress thereof.
ARTICLE 28. THE DIRECTOR may condemn and reject any of the work or materials
- ----------
found by him to be improperly performed or furnished under this contract, and
require the same to be taken down and removed from the premises, and other
proper work and materials to be performed and furnished instead thereof, by or
at the expense of THE CONTRACTOR.
Revised November 1, 1996 -9- RS-29
<PAGE>
ARTICLE 28A. POOR PERFORMANCE PROVISION
- ----------- --------------------------
MID-POINT AND FINAL EVALUATIONS
-------------------------------
Mid-Point Evaluation
--------------------
The performance by the Contractor of the specifications, scope of work etc., of
this contract will be evaluated on behalf of the Board by the Field Inspector
assigned to monitor the project. All projects will be evaluated at project
---------------------------------------------
mid-point, and at final completion (punch list items completed) or at the time
- --------------------------------------------------------------------------------
the Contractor was required to finally complete the project. An unsatisfactory
- -----------------------------------------------------------
or marginal rating on the written evaluation form will be submitted to the
Contractor for response.
If, after reviewing the Contractor's response (if any) to an unsatisfactory or
marginal rating on the written evaluation form, it is the judgment of the Field
Inspector's supervisor that the Contractor's performance is not in compliance
with the requirements of the contract, he/she will issue a written "Warning of
Poor Performance" to the Contractor.
Final Evaluation
----------------
Within thirty (30) days after final completion of the work or the time within
which the Contractor was required to finally complete the work, performance by
the Contractor of the specifications, scope of work, etc., of this Contract will
be evaluated on behalf of the Board by the Field Inspector assigned to monitor
the project. An unsatisfactory or marginal rating on the written evaluation form
will be submitted to the Contractor for response.
If, after reviewing the response (if any) to an unsatisfactory or marginal
rating, it is the judgment of the Field Inspector's supervisor that the
Contractor's performance is not in compliance with the requirements of the
contract, he/she shall advise the Board's Chief Executive for School Facilities
of such fact, with recommendations.
If, after his/her review of the evaluation(s) and recommendation(s) of the Field
Inspector and his/her supervisor, and the response, if any, of the Contractor,
it shall be the determination of the Chief Executive that the Contractor's
performance is not in compliance with the requirements of the contract, he/she
shall advise the Contractor in writing that it has been determined to be a Poor
Performer, and will be barred from bidding for a period of up to two (2) years
from the Contractor' s receipt of notice of the determination.
Notwithstanding any other provision of this contract, a project having reached
substantial completion shall not affect the operation of this provision, i.e.,
the Contractor may achieve substantial completion and be determined a poor
performer hereunder.
The Contractor shall have the right to appeal the determination of the Chief
Executive that it is a Poor Performer at a hearing before the Chancellor's Board
of Review. The Contractor must request this hearing within five (5) business
Revised November 1, 1996 -10- RS-29
<PAGE>
days of receiving the Determination of Poor Performance from the Chief
Executive.
The opportunity for the Contractor to appeal the Determination of Poor
Performance to the Board of Review should be made with the understanding that
the following result(s) may occur:
a. If the Board of Review accepts the Contractor's appeal and agrees with the
Contractor, the Determination of Poor Performance will be rescinded.
b. If the Board of Review agrees with the Chief Executive's determination, it
will issue a Board of Review decision that may, consistent with the Bylaws
of the Board of Education, bar the Contractor from bidding for a period of
up to two (2) years, unless in connection with its findings, a lesser
penalty is imposed by reason of mitigating circumstances.
ARTICLE 29. In case THE CONTRACTOR shall at any time, in the opinion of THE
- -----------
DIRECTOR, neglect to faithfully carry on and perform any portion of the work
required by this contract, whereby safety and proper construction may be
endangered or which may not be subsequently rectified, or whereby damage and
injury may result to life and property, or either, then and in every such case
THE DIRECTOR shall have the right forthwith and without notice to THE CONTRACTOR
to enter into and upon the work, and to make good any and all imperfect work and
materials and deficiencies arising by reason of such neglect. The expense and
cost thereof shall be charged against THE CONTRACTOR, and may be deducted from
any payment or money which may be due or subsequently become due under this
contract. The opinion and decision of THE DIRECTOR in all instances which may
arise in respect to the aforesaid shall be final, conclusive and binding upon
THE CONTRACTOR. No action so taken by THE DIRECTOR shall release THE CONTRACTOR
from any and all consequences and damages which may have arisen, or may arise,
owing to such neglect, whether willful or by omission; and THE CONTRACTOR
covenants and agrees to hold THE CITY and THE BOARD harmless against and from
any and all suits at law and all and every claim, damage and loss whatsoever
arising therefrom.
ARTICLE 30. Should THE CONTRACTOR fail to commence or perform any work, or
- ----------
otherwise fail to carry out any directions consistent with the terms of this
contract within three (3) days after written notice from THE DIRECTOR, THE
DIRECTOR may have such work done, or materials furnished by others and deduct
the cost thereof from the monies due, or to become due under the contract.
ARTICLE 31. Should The BOARD deem it inexpedient to interrupt the progress of
- ----------
the work by the removal and replacement of defective or damaged work or
materials, or those not in accordance with the plans and specifications, the
Board shall have the right to accept the work as furnished and to deduct from
the contract price an amount to be determined by The Director to cover the cost
of having the defective work or materials removed or replaced, or any omitted
work performed or other deviation from contract requirements corrected, by
others. The Contractor will provide, furnish and deliver to the Board at his own
Revised November 1, 1996 -11- RS-29
<PAGE>
cost and expense, at the times and places and in the manner and under the
conditions herein contained or hereto attached, the supplies, articles, goods,
wares and merchandise or services mentioned and described in the specifications,
and will accept as full compensation therefor the sum set opposite the
respective items or articles in the specifications herein contained or hereto
attached, the said sums being the amounts at which this contract is awarded to
the Contractor after the public letting thereof.
ARTICLE 32. Coordination with other contractors. During the progress of the
- ----------
work, other contractors may be engaged in performing other work or may be
awarded other contracts for additional work on this project. In that event, THE
CONTRACTOR shall coordinate the work to be done hereunder with the work of such
other contractors and THE CONTRACTOR shall fully cooperate with such other
contractors and carefully fits its own work to that provided under other
contracts as may be directed by THE DIRECTOR. THE CONTRACTOR shall not commit or
permit any act which will interfere with the performance of work by any other
contractor.
If THE DIRECTOR shall determine that THE CONTRACTOR is failing to coordinate his
work with the work of other contractors as THE DIRECTOR has directed, then THE
DIRECTOR shall have the right to withhold any payments due hereunder until THE
DIRECTOR's directions are complied with by THE CONTRACTOR.
ARTICLE 33. If THE CONTRACTOR notifies THE DIRECTOR in writing that another
- ----------
contractor on this project is failing to coordinate his work with the work of
this contract as directed, THE DIRECTOR must promptly investigate the charge. If
he finds it to be true, he must promptly issue such directions to the other
contractor with respect thereto as the situation may require. THE BOARD shall
not, however, be liable for any damages suffered by this contractor by reason of
the other contractor's failure to promptly comply with the directions so issued
by THE DIRECTOR, or by reason of another contractor's default in performance, it
being understood that THE BOARD does not guarantee the responsibility or
continued efficiency of any contractor.
ARTICLE 34. THE CONTRACTOR shall indemnify and hold THE BOARD harmless from
- ----------
any and all claims or judgment for damages and from costs and expenses to which
THE BOARD may be subjected or which it may suffer or incur by reason of THE
CONTRACTOR's failure to comply with THE DIRECTOR's directions promptly; and THE
COMPTROLLER shall have the right to exercise the powers reserved in Articles 30,
41, 49, 50, and 58 hereof with respect to any claims which may be made for
damages due to this contractor's failure to comply with THE DIRECTOR's direction
promptly.
ARTICLE 35. Should THE CONTRACTOR sustain any damage through any act of
- ----------
omission of any other contractor having a contract with THE BOARD for the
performance of work upon the site or of work which may be necessary to be
performed for the proper prosecution of the work to be performed hereunder, or
through any act or omission of a subcontractor of such contract, THE CONTRACTOR
shall have no claim against THE BOARD for such damages, but shall have to
Revised November 1, 1996 -12- RS-29
<PAGE>
recover such damage from the other contractor under the provision similar to the
following provisions which have been or will be inserted in the contracts with
such other contractors.
ARTICLE 36. Should any other contractor having or who shall hereinafter have
- ----------
a contract with THE BOARD for the performance of work upon the site sustain any
damage through any act or omission of THE CONTRACTOR hereunder or through any
act or omission of any subcontractor of THE CONTRACTOR, THE CONTRACTOR agrees to
reimburse such other contractor for all such damages and to defend at his own
expense any suit based upon such claim and if any judgement or claims against
THE BOARD shall be allowed THE CONTRACTOR shall pay or satisfy such judgement or
claim and pay all costs and expenses in connection therewith and to indemnify
and hold THE BOARD harmless from all such claims.
ARTICLE 37. THE BOARD's right to indemnification hereunder shall in no way be
- ----------
diminished, waived or discharged, by its recourse to assessment of liquidated
damages as provided in Article 17 or by the exercise of any other remedy
provided for by contract or by law.
CONTRACTOR'S RESPONSIBILITY, INSURANCE, ETC.
--------------------------------------------
ARTICLE 38. THE CONTRACTOR shall at all times be liable for, and indemnify
- ----------
and save harmless THE CITY and THE BOARD and their successors in office, against
and from any and all claim or damage arising from, upon or by reason of the
breach by THE CONTRACTOR of any covenants herein contained.
ARTICLE 39. (No Text)
- ----------
ARTICLE 40. THE CONTRACTOR shall bear and be liable for all loss or damage
- ----------
which may happen to the said work or materials at any time prior to the
completion and acceptance by THE BOARD. THE CONTRACTOR shall and will during the
progress of the work protect and secure the said work and materials from damage
and injury, and shall and will repair all such damage and injury, if any, and
fully complete and deliver said work and materials to THE BOARD within the time
herein provided and according to the terms and provisions of this contract.
During the performance and up to the date of final acceptance by THE BOARD, THE
CONTRACTOR must provide and maintain with companies satisfactory to THE DIRECTOR
the following types of insurance:
1. Insurance protecting the work against loss and damage by fire, windstorm
hail, explosion, riot attending a strike, civil commotion, aircraft,
vehicles, smoke, vandalism and malicious mischief. Such insurance shall be
for amounts and for periods satisfactory to THE DIRECTOR, payable, in case
of loss to THE BOARD. THE CONTRACTOR shall deliver the policy or policies
therefor to THE DIRECTOR. Delivery of such policy, or policies of insurance
to THE DIRECTOR shall be a condition precedent to the right of THE
CONTRACTOR to demand any payments hereunder. Insurance protecting the work
against loss and damage by fire, shall not be required for work not subject
to fire loss, such as excavation, grading, paving or demolition.
Revised November 1, 1996 -13- RS-29
<PAGE>
Notice of Cancellation of Policy - The policy shall not be cancelled,
-----------------------------------
terminated or modified by the company unless thirty (30) days prior written
notice is sent by Registered Mail to THE CONTRACTOR and THE DIRECTOR,
Division of School Facilities, 28-11 Queens Plaza North, Long Island City,
N.Y., 11101; nor shall it be cancelled, terminated, or modified by THE
CONTRACTOR without the prior written consent of THE DIRECTOR. Within twenty
(20) days after receipt of said notice, THE CONTRACTOR shall renew the
policy for the duration of the term of the contract including any time
extensions granted for the completion of the contract work.
2. Insurance to comply with the Workers Compensation Law. THE CONTRACTOR shall
not begin work at, about or upon the property of THE BOARD until he files
with THE DIRECTOR a certificate showing compliance with the provisions of
said Law. Such insurance shall be kept during the life of said contract.
Contractor shall only engage subcontractors who comply with the Worker's
Compensation Law.
3. Public (General) Liability Insurance for Bodily Injury and Property Damage
to protect THE CONTRACTOR and his subcontractors performing work at the
site from claims or damages for bodily injury, including death, as well as
from claims for property damage which may arise from operations under the
contract whether such operations be by himself or by any subcontractor or
any one directly or indirectly employed by either of them.
Notice of Cancellation of Policy - The policy shall not be cancelled,
-----------------------------------
terminated or modified by the company unless thirty (30) days prior written
notice is sent by Registered Mail to THE CONTRACTOR and THE DIRECTOR,
Division of School Facilities, 28-11 Queens Plaza North, Long Island City,
N.Y., 11101; nor shall it be cancelled, terminated, or modified by THE
CONTRACTOR without the prior written consent of THE DIRECTOR. Within twenty
(20) days after receipt of said notice, THE CONTRACTOR shall renew the
policy for the duration of the term of the contract including any time
extensions granted for the completion of the contract work.
The minimum dollar limit for Public (General) Liability Insurance for
Bodily Injury and Property Damages shall be as stated in the Instructions
to Bidders.
4. Owner's (contractors') Protective Liability Insurance Policy for Bodily
Injury and Property Damage to protect THE BOARD and THE CITY against claims
for bodily injury, including death, and property damage, arising from the
operations of THE CONTRACTOR and his subcontractors for the limits of
liability specified in the Instructions to Bidders. Such insurance policy
shall insure THE BOARD and shall contain by rider annexed to such policies,
the following provisions:
(a) Notice under this policy by the Insurance Company should be addressed
to The Secretary of THE BOARD, 110 Livingston St., Brooklyn, N.Y., 11201.
Revised November 1, 1996 -14- RS-29
<PAGE>
(b) Notice of accident should be given by the Insured to Insurance Company
within sixty (60) days after such claim shall be filed with the said
Secretary.
(c) Notice of claim against the Insured shall be given to the Insurance
Company within sixty (60) days after such claim shall be filed with the
said secretary.
(d) The policy shall not be cancelled, terminated or modified by the
company unless thirty (30) days prior written notice is sent by Registered
Mail to THE CONTRACTOR and THE DIRECTOR, Division of School Facilities,
28-11 Queens Plaza North, Long Island City, N.Y., 11101; nor shall it be
cancelled, terminated, or modified by THE CONTRACTOR without the prior
written consent of THE DIRECTOR. Within twenty (20) days after receipt of
said notice, THE CONTRACTOR shall renew the policy for the duration of the
term of the contract including any time extensions granted for the
completion of the contract work.
(e) The presence of engineers or inspectors of THE BOARD or THE CITY on the
site of the work performed under the contract with THE CONTRACTOR shall not
invalidate the policy of insurance.
(f) The policy shall not be invalidated by reason of any violation of any
of the terms or any of the terms of any policy issued by the Insurance
Company to THE CONTRACTOR.
Insurance Policies and Workers Compensation Policies required under Items
(1) and (2) shall contain by rider annexed to such policies the provisions
of(4) (a), (d), (e), and (f).
All policies of insurance shall be submitted to THE DIRECTOR, Attention:
Qualification and Insurance Unit, Division of School Facilities, 28-11
Queens Plaza North, Long Island City, N.Y., 11101, for approval, prior to
the start of any work.
ARTICLE 41. (No text)
- ----------
ARTICLE 42. If the persons or property of others suffers loss, damage or
- ----------
injury resulting directly or indirectly from the work of THE CONTRACTOR, or his
subcontractors, in their performance of this contract, or from his or their
failure to comply with any of the provisions of this contract or of law, THE
CONTRACTOR shall indemnify and hold THE BOARD and THE CITY harmless from any and
all claims and judgments for damages and from costs and expenses to which THE
BOARD or THE CITY may be subject or which it may suffer or incur by reason
thereof. The provisions of this Article shall not be deemed to create any new
right of action in favor of third parties against THE CONTRACTOR, THE BOARD or
THE CITY.
ARTICLE 43. THE CONTRACTOR shall assume all responsibilities for any claims
- ----------
or suits for infringements or on account of any patent rights connected with any
or all of the materials, appliances, articles or systems used in the performance
of this work, and shall protect THE BOARD and THE CITY and hold them harmless
Revised November 1, 1996 -15- RS-29
<PAGE>
against any such claims or suits which may be brought before or after the
completion of the work.
ARTICLE 43A. The requirement for insurance pursuant to Article 40 shall
- -----------
continue in effect until the completion of all work required under the contract,
unless specific consent is given, in writing, to the termination of such
insurance.
PAYMENTS
--------
ARTICLE 44. This Contract shall not be binding or of any force unless THE
- ----------
COMPTROLLER shall indorse hereon his certificate that there remains unexpected
and unapplied, as provided in Section 93c-3.0 of the Administrative Code of THE
CITY, a balance of the appropriation or fund applicable thereto, sufficient to
pay the estimated expense of executing this contract as certified by the
officers making the same.
ARTICLE 45. If THE CONTRACTOR shall well and faithfully perform and fulfill
- ----------
this contract and keep every covenant on his part herein contained, THE BOARD
will then, but not before, pay to THE CONTRACTOR the sum of
________________________________________________________________________________
________________________________________________________________________________
______________________________ dollars $ _______________________________________
(If contract amount is divisible into separate payments for separate portions,
enter the amounts in Article 48.)
ARTICLE 46. The Board agrees to pay and the Contractor agrees to accept, as
- ----------
full consideration for the complete and satisfactory performance of the services
required herein, the amount set forth in the bid.
Payment(s) shall be made after the filing with the Comptroller of voucher(s) for
such payment(s). In the event any items in the billing may be questioned or
disputed by the DIRECTOR, these items may be deleted from the billing until
their resolution and the remainder of the billing shall be processed within the
above period(s).
The Contractor shall submit numbered invoices for payment in accordance with the
payment schedule established in the specifications. Such invoices shall set
forth the services for which payment is requested, and approval thereof by the
DIRECTOR shall be a prerequisite to payment.
Revised November 1, 1996 -16- RS-29
<PAGE>
All pay shall be subject to such provisions for set off as may be set forth
in this Agreement and in the Specifications attached hereto.
With each application for installment or progress payment, the Contractor shall
submit a detailed schedule of the amount and value of the material installed and
the work done.
The Contractor will be required to furnish proof of delivery in each instance
and comply with the rules and regulations of the Board, relative to the manner
in which bills, etc., shall be furnished.
Payments shall be made out of such monies as may be reserved by the Comptroller
of the City of New York for the purpose herein provided.
This contract and all payments hereunder shall be subject to audit by the Board
of Education and post audit by the Comptroller of the City in accordance with
the New York City Charter and Administrative Code.
ARTICLE 47. If provision is specifically made in the specification for
- ----------
progress payments, the sum for which this Contract is awarded will be paid in
installments, as the work progresses. All such installment payments or progress
payments shall be based upon an estimate and certificate made by THE DIRECTOR of
the materials installed and work done by THE CONTRACTOR.
ARTICLE 47A. In accordance with the requirements of Article 70, the Contractor
- -----------
shall promptly repair, replace, restore or rebuild, as the DIRECTOR may
determine, any furnished work in which defects of materials or workmanship may
appear or to which damage may occur because of such defects, during the one-year
period subsequent to the date of final acceptance, except where other periods of
maintenance and guarantee are provided for.
Notice by the DIRECTOR to the Contractor to repair, replace, rebuild or restore
such defective or damaged work shall be timely, if given not later than ten (10)
days subsequent to the expiration of the one ( 1 ) year period or other periods
provided for herein.
If the Contractor shall fail to repair, replace, rebuild or restore such
defective or damaged work promptly after receiving such notice, the DIRECTOR
shall have the right to have the work done by others in the same manner as is
provided for the completion of a defaulted contract and to deduct the cost
thereof from the amount so deposited hereunder. The balance, if any, shall be
returned to the Contractor without interest.
If the amount so deposited be insufficient to cover the cost of such work, the
Contractor shall be liable to pay such deficiency on demand by the DIRECTOR.
The DIRECTOR's certificate setting forth the fair and reasonable cost of
repairing, replacing, rebuilding or restoring any damaged or defective work when
Revised November 1, 1996 -17- RS-29
<PAGE>
performed by one other than the Contractor shall be binding and conclusive as
the amount thereof upon the Contractor.
The Contractor shall obtain all manufacturer's warrantees and guarantees of all
equipment and materials required by this Contract in the name of the Board of
Education of the City of New York and shall deliver same to the Board.
ARTICLE 48. In case the contract includes work to be performed or materials
- ----------
to be furnished at or upon more than one building, for which separate prices
were required in the bid, or for more than one item for which separate bids were
required, final payment for each portion shall be made as specified in Article
46 without reference to the work to be performed in other portions.
ARTICLE 49. If any claim is made against THE CITY or THE BOARD for any act or
- -----------
omission of THE CONTRACTOR, THE COMPTROLLER may withhold the amount of such
claim or so much thereof as he may deem necessary, as security against such
claim, from any money due or to become due hereunder, until such time as the
commencement of an action thereon would be barred by law or until final
adjudication of such action by a Court of competent jurisdiction. THE
COMPTROLLER, in his discretion, may permit THE CONTRACTOR to substitute other
satisfactory security in lieu of the moneys so withheld.
If no action is commenced upon such claim within the time limited therefor by
law, THE COMPTROLLER, upon written demand by THE CONTRACTOR, shall return the
amount so withheld without interest.
If an action on such claim is timely commenced and the liability of THE BOARD or
THE CITY, or THE CONTRACTOR, or both, shall have been established therein by a
final judgement of a Court of competent jurisdiction, or if such claim shall
have been admitted by THE CONTRACTOR valid, THE COMPTROLLER shall pay such
judgement or admitted claim out of the moneys retained by him under the
provisions of this Article, and return the balance, if any, without interest, to
THE CONTRACTOR.
ARTICLE 50. If, in the opinion of THE BOARD, THE CONTRACTOR is not proceeding
- ----------
with the work in accordance with the provisions of this contract, THE BOARD
shall have the right to withhold out of any payments, final or otherwise, such
sums as THE BOARD may deem ample to protect THE BOARD against delay or loss.
ARTICLE 51. (No Text)
- ----------
ARTICLE 52. No certificate given or payment made under this contract and no
- ----------
action by THE BOARD shall operate as, or be held to be, an admission on the part
of THE BOARD or THE CITY, that this contract, or any part thereof, has been
complied with, or that any detail of the work has been properly performed, in
case the fact shall be otherwise, or so as to preclude any action for damages
against THE CONTRACTOR, or the deduction and retention of any damages as herein
provided, should the work and materials, hereby required, not be performed and
Revised November 1, 1996 -18- RS-29
<PAGE>
furnished in every particular in a substantial and workmanlike manner, and of a
good and proper quality, or should this contract not be faithfully executed in
every respect.
ARTICLE 53. Neither THE CITY nor THE BOARD, nor any department or officer
- ----------
thereof, shall be precluded or estopped by any return or certificate made or
given by THE BOARD, any Director or other officer, agent or appointee of THE
CITY or of THE BOARD under any provision of this agreement from showing at any
time (either before or after the final completion and acceptance of the work and
payment therefor pursuant to any such return or certificate) showing the true
and correct amount and character of the work done and materials furnished by THE
CONTRACTOR, or any other person under this agreement, or from showing at any
time that any such return or certificate is untrue and incorrect or improperly
made in any particular, or that the work and materials or any part thereof, do
not in fact conform to the specifications; and neither THE CITY nor THE BOARD
shall be precluded or estopped, notwithstanding any such return or certificate
and payment in accordance therewith, from demanding and recovering from THE
CONTRACTOR such damages as it may sustain by reason of his failure to comply
with the specifications.
ARTICLE 54. All works of art, including paintings, mural decorations, stained
- ----------
glass, statues, has reliefs and other sculpture, monuments, fountains, arches
and other structures of a permanent character intended for ornament or
commemoration, and every design of the same to be used in the performance of
this contract, and the design of all buildings, bridges, approaches, gates,
fences, lamps or structures to be erected pursuant to the terms of this contract
must be approved by the Art Commission of THE CITY, prior to the erection or
placing in position of the same. THE DIRECTOR will submit all required data for
the approval of the Art Commission. Final payment shall not become due or
payable under this contract unless and until the Art Commission shall certify
that the design for the work herein contracted for has been approved by the said
Commissioner, and that the same has been executed in substantial accordance with
the design so approved, pursuant to Section 854 of the New York City Charter.
ERRORS AND CHANGES
------------------
ARTICLE 55. If the contract documents contain any errors, inconsistencies,
- ----------
ambiguities, or discrepancies, other than omissions described in Article 9, THE
CONTRACTOR shall request a decision by writing THE DIRECTOR, whose decision will
be binding upon THE CONTRACTOR. If, in THE DIRECTOR's opinion, changes are
required in the extent of the work included in the contract, cost adjustments
therefor will be made as described in Article 56.
ARTICLE 56. THE BOARD, through THE DIRECTOR, reserves the right to make
- ----------
changes from time to time, when it deems necessary, in the plans and
specifications. THE CONTRACTOR shall submit a detailed estimate of the value of
the work involved. THE DIRECTOR will determine the reasonable value of the work
or material omitted from or added to the work by the aforesaid changes. The
reasonable value of any work or material required to be omitted shall be
deducted from and the reasonable value of extra work required to be furnished
Revised November 1, 1996 -19- RS-29
<PAGE>
shall be added to the contract price. Such changes shall be in effect from the
date of authorization from THE DIRECTOR.
ASSIGNMENTS AND LIENS
---------------------
ARTICLE 57. THE CONTRACTOR will give his personal attention constantly to the
- ----------
faithful prosecution of the work; he will not assign, transfer, convey, sublet
or otherwise dispose of this contract, or his right, title, or interest in or to
the same or any part hereof, without the previous resolution of THE BOARD
consenting thereto, and a statement that such consent was given by THE BOARD
endorsed by The Secretary, or Assistant Secretary of THE BOARD, upon the
assignments of sub-contracts, filed in the offices of THE BOARD, and of the
Treasurer; and he will not assign by power of attorney or otherwise any of the
moneys to become due and payable under this contract, unless by and with the
previous consent in writing of The Administrator of Business Affairs endorsed
upon or attached to the assignment filed in said offices. If THE CONTRACTOR
shall, without previous written consent, assign, transfer, convey, sublet or
otherwise dispose of this contract or of his right, title, or interest therein,
or any of the moneys to become due under this contract to any other person,
firm, or corporation, this contract may, at the opinion of THE BOARD, be revoked
and annulled and THE BOARD shall thereupon be relieved and discharged from any
and all liability and obligations growing out of the same to THE CONTRACTOR, and
to his assignee or transferee. No right under this contract, or to any moneys to
become due hereunder shall exist against THE CITY or THE BOARD in law or in
equity, by reason of any so-called assignment of this contract, or any part
thereof, or of any moneys to grow due hereunder, unless authorized as aforesaid.
Nothing herein contained shall be construed to hinder, prevent or affect an
assignment by THE CONTRACTOR for the benefit of his creditors, made pursuant to
the statutes of the State of New York, or of a subletting of any part of this
contract in the regular course of business, which subletting has been
specifically approved in advance by THE DIRECTOR in writing.
ARTICLE 58. THE CONTRACTOR will not, at any time, suffer or permit any liens,
- ----------
attachments or other encumbrances, under the law of this State or otherwise, by
any person or persons whomsoever, to be filed against the amount due or to
become due under this contract for such work or materials, or by reason of any
other claim or demand against THE CONTRACTOR; and any such lien, attachment, or
other encumbrance, until it is removed or legally bonded to the satisfaction of
The Treasure, shall preclude any and all claim or demand for any payment
whatsoever under or by virtue of this contract
If, at any time, before or within thirty days after the whole work herein agreed
to be performed has been completed and accepted by THE BOARD, any person or
persons claiming to have performed any labor or furnished any material toward
the performance and completion of this contract shall file with THE BOARD and
with The Treasurer any such notice as is described in the Lien Law or in any Act
of the Legislature of the State of New York, then, and in every such case, THE
CITY and THE BOARD shall retain, anything herein contained to the contrary
notwithstanding, from the moneys under its control and due and to grow due under
this Agreement, so much of the moneys as shall be sufficient to pay off, satisfy
Revised November 1, 1996 -20- RS-29
<PAGE>
and discharge the amount in such notice alleged to be sued to the person or
persons filing such notice, together with the reasonable costs of any action or
actions that may be brought to enforce such claim or the lien created by the
filing of such notice. The money so retained shall be held by THE CITY and THE
BOARD until the lien created by the said act, and the filing of said notice
shall be discharged pursuant to the provisions of the said act.
SUBCONTRACTING
--------------
ARTICLE 58A.
- -----------
A. The Contractor agrees not to enter into any subcontracts for the
performance of the obligations, in whole or in part, under this Agreement
without the prior written approval of the Board. Two copies of each such
proposed subcontract shall be submitted to the Director with the
Contractor's written request for approval.
B. All such subcontracts shall contain provisions specifying:
1. that the work performed by the subcontractor must be in accordance with
the terms of the Agreement between the Board and the Contractor,
2. that nothing contained in such contract shall impair the rights of the
Board, and
3. that nothing contained therein, or under the Agreement between the Board
and the Contractor shall create any contractual relationship between the
subcontractor and the Board.
C. The Contractor agrees that it is fully responsible to the Board for the
acts and omissions of the subcontractors 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 subcontract.
COMPLIANCE WITH LAWS
--------------------
ARTICLE 59. In all operations under this contract, THE CONTRACTOR agrees to
- ----------
comply with the provisions of all Federal and State and local laws, The
Administrative Code of THE CITY and all rules and regulations of THE CITY and
THE BOARD which may affect such operations.
ARTICLE 60. It is the intent and understanding of the parties in this
- ----------
contract that each and every provision of law required to be inserted in this
Revised November 1, 1996 -21- RS-29
<PAGE>
contract should 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 contract 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.
ARTICLE 60A. (a) THE CITY is exempt from payment of Federal, State, local taxes
- -----------
and Sales and Compensating Use Taxes of the State of New York and of cities and
counties on all materials and supplies sold to THE CITY pursuant to the
provisions of this contract. These taxes are not to be included in bids.
However, this exemption does not apply to tools, machinery, equipment or other
property leased by or to THE CONTRACTOR or a subcontractor, or to supplies and
materials which, even though they are consumed, are not incorporated into the
completed work (consumable supplies), and THE CONTRACTOR and his subcontractors
shall be responsible for and pay any and all applicable taxes, including Sales
and Compensating Use Taxes, on such leased tools, machinery, equipment or other
property and upon all such unincorporated supplies and materials.
(b) THE CONTRACTOR agrees to sell and THE CITY agrees to purchase all supplies
and materials, other than consumable supplies, required, necessary to
proper for or incidental to the construction of the Project covered by this
agreement. The sum paid under this agreement for such supplies and
materials shall be in full payment and consideration for the sale of such
supplies and materials under the agreement.
THE CONTRACTOR agrees to construct the Project and to perform all work,
labor and services required, necessary or proper for or incidental thereto
for the sum shown in the bid for the performance of such work, labor and
services, and the sum so paid pursuant to this agreement for such work
labor, etc. shall be in full consideration for the performance by THE
CONTRACTOR of all his duties and obligations under this agreement in
connection with said work and labor.
(c) The purchase by THE CONTRACTOR of the supplies and materials sold hereunder
shall be a purchase or procurement for resale and therefore not subject to
the New York State or New York City Sales or Compensating Use Taxes or any
such taxes of cities or counties. The sale of such supplies and materials
sold hereunder shall be a purchase or procurement for resale and therefore
not subject to the New York State or New York City Sales or Compensating
Use Taxes or any such taxes of cities or counties. The sale of such
supplies and materials by THE CONTRACTOR to THE CITY is exempt from the
aforesaid sales or compensating use taxes. With respect to such supplies
and materials, THE CONTRACTOR, at the request of THE CITY, shall furnish to
THE CITY such bills of sale and other instruments as may be required by it,
properly executed, acknowledged and delivered assuring to THE CITY title to
such supplies and materials, free of liens or encumbrances, and THE
CONTRACTOR shall make or otherwise identify all such materials as the
property of THE CITY.
Revised November 1, 1996 -22- RS-29
<PAGE>
(d) Title to all materials to be sold by THE CONTRACTOR to THE CITY pursuant to
the provisions of the contract shall immediately vest in and become the
sole property of THE CITY upon delivery of such supplies and materials to
the site and prior to its becoming a part of the permanent structure.
Notwithstanding such transfer of title, THE CONTRACTOR shall have the full
and continuing responsibility to install such materials and supplies in
accordance with the provisions of this agreement, protect them, maintain
them in a proper condition and forthwith repair, replace and make good any
damage thereto, theft or disappearance thereof, and furnish additional
materials in place of any that may be lost, stolen, or rendered unusable,
without cost to THE CITY, until such time as the work covered by the
contract is fully accepted by THE CITY. Such transfer of title shall in no
way affect any of THE CONTRACTOR's obligations hereunder. In the event
that, after title has passed to THE CITY, any of such supplies and
materials are rejected as being defective or otherwise unsatisfactory,
title to all such supplies and materials shall be deemed to have been
transferred back to THE CONTRACTOR.
(e) The purchase by sub-contractors of supplies and materials to be sold
hereunder shall also be a purchase or procurement for resale to THE
CONTRACTOR (either directly or through other subcontractors) and therefore
not subject to the aforesaid Sales or Compensating Use Taxes, provided that
the sub-contract agreements provide for the resale of such supplies and
materials prior to and separate and apart from the incorporation of such
supplies and materials into the permanent construction and that such
sub-contract agreements are in form similar to this contract with respect
to the separation of the sale of materials from the work and labor,
services, consumable supplies and any other matters to be provided, and
provided further that the sub-contract agreements provide separate prices
for (1) materials and (2) all other services and matters. Such separation
shall actually be followed in practice, including the separation of
payments for supplies and materials from the payments for other work and
labor and other things to be provided.
(f) THE CONTRACTOR and his sub-contractors and material men shall obtain any
and all necessary contractor Exempt Purchase Certificates or resale
certificates from the appropriate governmental agency or agencies, and
furnish a contractor Exempt Purchase Certificate or resale certificate to
all persons, firms, or corporations from which they purchase supplies and
materials for the performance of the work covered by this Contract.
(g) In the event any of the provisions of the agreement to which this is an
addendum shall be deemed to be in conflict with this addendum or shall
create any ambiguity, then the addendum shall control.
ARTICLE 60B. In accordance with the provisions of Section 1403.3-2.25, Noise
- -----------
abatement contract compliance, of Part III of Chapter 57 of the Administrative
Code of THE CITY:
1. Devices and activities which will be operated, conducted, constructed or
manufactured pursuant to this contract and which are subject to the provisions
Revised November 1, 1996 -23- RS-29
<PAGE>
of the New York City Noise Control Code shall be operated, conducted,
constructed manufactured without causing a violation of the code.
2. Such devices and activities shall incorporate advances in the art of noise
control developed for the kind and level of noise emitted or produced by such
devices and activities, in accordance with regulations issued by the
Administrator of the Environmental Protection Administration. Regulations
promulgated pursuant to Section 1403.3-2.25 after the execution of this contract
shall not alter its terms, conditions and specifications.
ARTICLE 61. If this contract contains any unlawful provision, not an
- ----------
essential part of the general structure of the contract and which shall appear
not to have been a controlling or very material inducement to the making
thereof, the same shall be deemed of no effect and shall, upon the application
of either party, be stricken from the contract without affecting the binding
force of the contract as it shall remain the omitting such provision.
ARTICLE 62. If the employees engaged on the work to be performed under this
- ----------
contract are required to be insured by the provisions of the Workmen's
Compensation Law, and acts amendatory thereof, this Contract shall be void and
of no effect unless the person, firm or corporation making or performing the
same shall secure compensation for the benefit of and keep insured during the
life of said Contract, such employees, in compliance with the provisions of said
law.
PREVAILING WAGE AND SUPPLEMENTS
-------------------------------
(Section 230, et seq.- New York State Labor Law)
----------------------------------------------
ARTICLE 63.
- ----------
If the work of this contract is covered by the provisions of Labor Law Section
220 (Labor Upon Public Works) or Section 230 (Building Services), the following
provision(s) shall apply:
THE CONTRACTOR must strictly comply with all applicable provisions of the New
York State Labor Law, including amendments thereto, and the provisions of
Section 6-109 of the New York City Administrative Code, as amended.
No laborer, workmen, or mechanic in the employ of THE CONTRACTOR, subcontractor
or other person doing or contracting to do the whole or part of the work
contemplated by this contract shall be permitted or required to work more than
eight hours in any one calendar day, or more than five days in any one week,
except in cases of extraordinary emergency including fire, flood or danger to
life or property, or in case of national emergency when so proclaimed by the
President of the United States of America, or in any other case provided by law.
In situations in which there are not sufficient laborers, workmen and mechanics
who may be employed to carry on expeditiously the work contemplated by this
contract as a result of such restrictions upon the number of hours and days of
labor, and the immediate commencement of prosecution or completion without undue
delay of the work is necessary for the preservation of the contract site and/or
for the protection of the life and limb of the persons using the same, such
Revised November 1, 1996 -24- RS-29
<PAGE>
laborers, workmen and mechanics shall be permitted or required to work more than
eight hours in any one calendar day; or five days in any one week; provided
however, that upon application of any contractor THE DIRECTOR shall have first
certified to the industrial Commissioner of the State of New York that such
public work is of an important nature and that a delay in carrying it to
completion would result in serious disadvantages to the public; and provided,
further, that such Industrial Commissioner shall have determined that such an
emergency does in fact exist as provided in Subdivision two of Section 220 of
the Labor Law.
Failure of THE DIRECTOR to make such a certificate to the Industrial
Commissioner shall not entitle THE CONTRACTOR to damages for delay or for any
cause whatsoever.
No part of the work, labor or services shall be performed or rendered by THE
CONTRACTOR in any plants, factories, buildings, or surroundings or under working
conditions which are unsanitary or hazardous or dangerous to the health and
safety of employees engaged in the performance of the contract. Compliance with
the safety, sanitary and factory inspection laws of the state in which the work
is to be performed shall be prima facie evidence of compliance with
A. The wage which THE CONTRACTOR shall pay for a legal day's work and
supplements to be provided to building service employees, as defined in
Section 230 of the New York State Labor Law, employed upon the whole or
part of the building service work contemplated by this contract, shall not
be less than the prevailing rate of wages and any supplements required to
be paid to the various classes of employees on such work, ascertained and
determined by the Comptroller of the City of New York as set forth in a
schedule. Said schedule is attached to this Contract.
B. No later than the first day upon which work on this contract is to
commence, THE CONTRACTOR shall post in a prominent and accessible place on
the site of work a legible statement of the wages to be paid to the
employees for the building service work contemplated. Such statement shall
be in the language(s) spoken on the job site.
C. An apprentice in a craft or trade my be permitted to work at a wage lower
than that established for the journeyman in such craft or trade only if all
of the following conditions are met:
(1) such apprentice has been individually registered in an apprenticeship
program which is duly registered with the New York State Industrial
Commissioner in conformity with Article 23 of the New York State Labor
Law,
(2) such apprentice's registration occurred prior to his/her employment as
an apprentice on such craft or trade service work; and
(3) written proof of such individual registration is submitted to THE
BOARD prior to such apprentice's employment as an apprentice. The
proof submitted shall include evidence of the appropriate ratios and
apprentice's wage rates. In no event shall the ratio of apprentice to
Revised November 1, 1996 -25- RS-29
<PAGE>
journeyman employed on such service work by greater than the lesser of
the following rate:
(a) the ratio permitted in the apprenticeship program approved by
the industrial commissioner, or
(b) the ratio prevailing in the locality where the service work
will be performed.
OVERTIME (Section 232 - New York State Labor Law)
- ------------------------------------------------
All building service employees, who work more than eight hours in any one day or
more than forty hours in any work week, shall be paid wages for such overtime by
THE CONTRACTOR, at a rate not less than one-and-one-half times his/her
prevailing basic hourly rate.
RECORD KEEPING (Section 233 - New York State Labor Law)
- ------------------------------------------------------
A. THE CONTRACTOR shall keep original payrolls or transcripts thereof
subscribed and confirmed by it as true, under penalties of perjury, showing the
hours and days worked by such employee, the craft, trade or occupation at which
he/she was employed, and the wages paid.
B. Where the wages paid include sums which are not paid directly to the
employee weekly and which are expended for supplements, the records shall
include the hourly payment on behalf of such employee, the supplement for which
such payment has been made, and the name and address of the person to whom such
payment has been made. In all cases, THE CONTRACTOR shall keep a true and
inscribed copy of the agreement under which such payments are made, a record of
all net payments made thereunder, and a list of all persons for whom such
payments are made.
C. The records required herein shall be kept on the site of the work during
all of the time that work hereunder is being performed. Upon a formal order of
THE BOARD or the City, THE CONTRACTOR shall produce within five (5) days, on the
work site, such records subscribed and affirmed by it as true, under penalties
of perjury.
CERTIFICATION OF WAGE AMOUNTS (Section 237 - New York State Labor Law)
- ----------------------------------------------------------------------
As a prerequisite to any payment by THE BOARD, THE CONTRACTOR and its
Subcontractors shall file a statement in writing and in form satisfactory to the
Comptroller of the City of New York, certifying to the amounts then due for
daily or weekly wages on account of labor performed under this Contract, setting
forth the names of the persons whose wages are unpaid and the amount due THE
CONTRACTOR or Subcontractor on behalf of each respectively. The statement, to be
filed, shall be certified by oath of THE CONTRACTOR or Subcontractor that it has
been read and that THE CONTRACTOR or Subcontractor knows the contents of the
statement to be true of his/her own knowledge.
DAILY SIGN IN SHEETS
- --------------------
THE CONTRACTOR shall maintain daily site sign-in sheets, which shall include
blank spaces for the employee's name to be both printed and signed, job title,
date started and the employee's social security number.
Revised November 1, 1996 -26- RS-29
<PAGE>
CERTIFIED PAYROLL
- -----------------
At the time THE CONTRACTOR makes application for each partial payment and for
final payment, THE CONTRACTOR shall submit to the Director a written payroll
certification, in the form provided by this Contract, of compliance with the
prevailing wage, minimum wage and other provisions and stipulations required by
New York State Labor Law Section 237 and by Section 6-109 of the New York City
Administrative Code. This certification, in compliance with this paragraph,
shall be a condition precedent to payment, and no payment shall be made to THE
CONTRACTOR unless and until each such certification has been submitted to and
received by the Director.
ARTICLE 63A. BOOKS AND RECORDS
- ------------
MAINTENANCE
- -----------
THE CONTRACTOR agrees to maintain separate and accurate books, records,
documents and other evidence and accounting procedures and practices which
sufficiently and property reflect all direct and indirect costs of any nature
expended in the performance of this Agreement.
RETENTION OF RECORDS
- --------------------
THE CONTRACTOR agrees to retain all books, records and other documents relevant
to this Agreement for six (6) years following the final payment or termination
of this Agreement New York City, New York State, Federal auditors and any other
persons duly authorized by the BOARD shall have full access to and the right to
examine any of the said materials during the six year period.
NO REMOVAL OF RECORDS FROM PREMISES
- -----------------------------------
Where performance of this Agreement involves use by THE CONTRACTOR of BOARD
papers, files, data or records at BOARD facilities or offices, THE CONTRACTOR
shall not remove any such papers, files, data or records therefrom without the
prior approval of the BOARD'S designated official.
ARTICLE 64. I. Policy. It is the policy of THE BOARD in accordance with the
---------
Labor Law of the State of New York and other applicable laws to provide equal
opportunity in employment for all qualified persons, to prohibit discrimination
in employment because of race, creed, color or national origin or sexual
orientation or affectational preference and to promote the full realization of
equal employment opportunity through an affirmative, continuing program of
compliance by all contractors doing business with THE BOARD and their
sub-contractors.
II. Implementation. (a) THE CONTRACTOR agrees to abide by and to comply with the
- ------------------
policy of THE BOARD as set forth by Section I above and hereby agrees and
stipulates to abide by and be bound by his "Program of Affirmative Action" as
set forth in the "Instructions To Bidders," the same being incorporated in this
contract and made a part thereof.
Revised November 1, 1996 -27- RS-29
<PAGE>
(b) THE CONTRACTOR agrees that THE BOARD shall have the sole right to determine
whether he has engaged in discriminatory labor practices as hereafter
defined.
(c) Discriminatory labor practices are defined to be existent when a
contractor, because of the age, race, creed, color, national origin or sex
or sexual orientation or affectational preference of any individual,
refuses to hire or employ or to bar or to discharge from employment such
individual or to discriminate against such individual in compensation or in
terms, conditions, or privileges of employment.
(d) THE CONTRACTOR agrees to post in conspicuous places available to employees
and applicants for employment, notices to be provided by THE BOARD setting
forth the language of the policy of THE BOARD, the definition of
discriminatory labor practices and "Notice of Nondiscrimination in
Employment" attached herewith and made a part hereof.
(e) THE CONTRACTOR agrees that all solicitations or advertisement for employees
placed by or on behalf of THE CONTRACTOR will state that all qualified
applicants will be considered for employment without regard to race, creed,
color, or national origin.
(f) THE CONTRACTOR agrees to send to each labor union or other representative
of workers with which he has a collective bargaining agreement or other
contract or understanding, a notice with a copy to THE CONTRACT COMPLIANCE
OFFICER, advising the labor union or workers' representative of THE
CONTRACTOR's commitments under this contract.
(g) THE CONTRACTOR agrees to furnish THE CONTRACT COMPLIANCE OFFICER all
information and reports requested and to permit access to his books,
records, and accounts, for the purpose of investigation to ascertain
compliance with the terms of this contract pertaining to equal employment
contract compliance and questions of discriminatory labor practices.
(h) It is agreed that if THE CONTRACTOR does not comply with the
nondiscrimination labor practice provisions of this contract, as solely
determined by THE BOARD, this contract may be cancelled, terminated, or
suspended in whole or in part and THE CONTRACTOR may be declared ineligible
for further Board of Education contracts and/or subject to such other
sanctions as may be imposed and remedies invoked by THE BOARD in its
discretion.
(i) THE CONTRACTOR agrees to submit to THE CONTRACT COMPLIANCE OFFICER monthly
reports indicating the breakdown of all of his employees by racial and
ethnic classification.
(j) THE CONTRACTOR agrees that he will include all of the foregoing provisions
in every subcontract or purchase order so that such provisions shall be
binding upon each sub-contractor or vendor.
Revised November 1, 1996 -28- RS-29
<PAGE>
(k) THE CONTRACT COMPLIANCE OFFICER may direct that any bidder or prospective
contractor or sub-contractor shall submit, as part of his Compliance
Report, a statement in writing, signed by an authorized officer or agent on
behalf of any labor union or any agency referring workers or providing or
supervising apprenticeship or other training, with which the bidder or
prospective contractor deals, with supporting information, to the effect
that the signer's practices and policies do not discriminate on the grounds
of race, creed, color, or national origin, and that the signer either will
affirmatively cooperate in the implementation of the policy and provisions
of this contract or that it consents and agrees that recruitment,
employment, and the terms and conditions of employment under the proposed
contract shall be in accordance with the purposes and provisions of this
contract. In the event that the union or the agency shall refuse to execute
such a statement, the Compliance Report shall so certify and set forth what
efforts have been made to secure such a statement, and such additional
factual material as THE BOARD may require.
(l) Powers And Duties of THE BOARD. THE BOARD shall administer this program
------------------------------
through its CONTRACT COMPLIANCE OFFICER, and shall have the following
powers and duties:
(1) Issue all orders, rules, regulations and procedures as it may deem
necessary or convenient for carrying out and implementing the policy
set forth in Section I.
(2) Examine the employment practices of any contractor or sub-contractor
to determine whether or not the contractual provisions set forth
herein have been violated.
(3) Use its best efforts, directly and through other interested CITY,
state and federal agencies, contractors, and all other available
instrumentalities, to cause any labor union whose members are engaged
in the performance of this contract, or any agency referring workers
or providing for supervising apprenticeship or training for or in the
course of such Work, to cooperate in the implementation of the policy
set forth in Section I.
(4) In appropriate cases, notify the concerned contracting agencies, THE
CITY Commission on Human Rights, the State Commission for Human
Rights, the Equal Opportunity Commission, the U.S. Secretary of Labor,
THE CITY Law Department, the U.S. Department of Justice, or other
appropriate Federal, State, and CITY agencies whenever it has reason
to believe that practices of any such labor organization or agency
violate Title VI or Title VII of the Civil Rights Act of 1964, or
other applicable provisions of Federal, State, or CITY laws.
(5) Hold such hearings, public or private, as it may deem advisable for
compliance, enforcement or education purposed, or by rule, regulation,
or order, designated or direct any officer or employee of THE BOARD to
do so.
(6) Upon recommendation of THE CONTRACT COMPLIANCE OFFICER, hold, or cause
to be held, hearings, prior to imposing, ordering or recommending the
imposition of sanctions as provided for in this contract. No order
Revised November 1, 1996 -29- RS-29
<PAGE>
withholding from any contractor further Board of Education contracts
shall be made without affording such contractor an opportunity for a
hearing.
(7) Periodically review the practices and procedures of the various
bureaus and officers of THE BOARD administering contract with respect
to compliance by them with the provisions of THE BOARD's policy as set
forth in Section I herein, and require them to file reports thereon.
(m) Sanctions and Remedies. In accordance with such rules, regulations
------------------------
procedures or orders as THE BOARD may issue or adopt hereunder, THE BOARD
may:
(1) Recommend to THE CITY Law Department that, in cases where there is
substantial or material violation, or the threat of substantial or
material violation of the contractual provisions of this contract,
appropriate proceedings be brought to enforce such provisions,
including the enjoining, within the limitations of applicable law, of
organizations, individuals, or groups who prevent, directly or
indirectly, or seek to prevent, directly or indirectly, compliance
with the provisions of this contract.
(2) Recommend to THE CITY Commission on Human Rights, the State Commission
for Human Rights, the Equal Opportunity Commission, the U.S. Secretary
of Labor, THE CITY Law Department, or the U.S. Department of Justice
that appropriate proceedings be instituted under Title VII of the
Civil Rights Act of 1964, or other applicable provisions of Federal,
State, or CITY laws.
(3) Recommend that criminal proceedings be brought for the furnishing of
false information to THE BOARD.
(4) Whenever THE BOARD cancels or terminates a contract or whenever the
award of further Board of Education contracts has been withheld under
the provisions of this contract because of non-compliance with the
contract provisions relating to nondiscrimination, THE BOARD shall
promptly notify THE COMPTROLLER of THE CITY.
(n) In the event that dispute arises between the bidder or prospective
contractor and THE BOARD as to whether the proposed program of affirmative
action for providing equal employment opportunity submitted by such bidder
or prospective contractor complies with such requirements then the matter
shall forthwith be referred to the Board of Review of THE BOARD for hearing
and determination. The determination of such Board of Review shall be final
and conclusive, subject only to judicial review.
(o) Miscellaneous. THE BOARD may delegate to any officer, bureau head, or
-------------
Revised November 1, 1996 -30- RS-29
<PAGE>
employee any function or duty of THE BOARD set forth under the provisions of
this Article, except authority to promulgate rules and regulations of a general
nature.
(p) The provisions of Sections I and II shall be deemed supplementary to, and
not in lieu of, or in substitution for, the provisions of the New York
State Labor Law relating to nondiscrimination, and other applicable
Federal, State, or CITY laws, ordinances, rules or regulations.
ARTICLE 64A. 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 1969, as amended, or the regulations of the United States
Department of Commerce promulgated thereunder.
b. Upon the final determination by the Commerce Department or any other agency
of the United States as to, or conviction of THE CONTRACTOR or a
substantially-owned affiliated company thereof, participation in an
international boycott in violation of the provisions of the Export
Administration Act of 1969, as amended, or the regulations promulgated
thereunder, THE COMPTROLLER may, at his option, render forfeit and void
this Contract.
c. THE CONTRACTOR shall comply in all respects, with the provisions of Section
343-10.0 of the Administrative Code of THE CITY and the rules and
regulations issued by THE COMPTROLLER thereunder.
NO LIABILITY PROVISION
----------------------
ARTICLE 65. Neither the members of the Board nor the Chancellor nor any
- ----------
officer, employee, agent or representative of the Board or of the City shall be
personally liable, based upon any theory of law or equity, to the Contractor or
to any party claiming on behalf of or through the Contractor, under this
Agreement, to act in any way connected with this Agreement, whether or not the
action or failure to act complained of shall have been within or without an
individual's scope of authority. The Contractor further waives any and all
rights to make a claim or commence an action or special proceeding, in law or
equity, against any of the aforementioned individuals, and the Contractor hereby
assigns its complete right, title, and interest in any such claim, action, or
special proceeding to the Board.
CLAIMS
------
ARTICLE 65A. If THE CONTRACTOR shall claim compensation for any damage
- -----------
sustained by reason of any act or omission of THE BOARD, its agents or if any
other person, or should THE CONTRACTOR claim that any work required of him is
not required to be performed by the provisions of this contract, he shall,
within ten days after sustaining such damage or within ten days after being
required to perform work claimed by him not to be required to be performed by
the provisions of this contract, make and deliver to THE DIRECTOR a written
statement of the nature of the damage sustained and of the basis of the claim
against THE BOARD. On or before forty-five days after such damage shall have
Revised November 1, 1996 -31- RS-29
<PAGE>
been sustained or such alleged extra work required to be performed by THE
CONTRACTOR shall have been ordered to be performed, THE CONTRACTOR shall make
and deliver to THE DIRECTOR a written itemized statement of the details and
amount of such damage or extra work duly verified by THE CONTRACTOR. Unless such
statements shall be made and delivered within the times aforesaid, all claims
for such compensation shall be deemed conclusively cancelled and invalidated and
THE CONTRACTOR shall not be entitled to payment on account of such claims.
In addition to the foregoing statement, THE CONTRACTOR shall, upon notice from
THE BOARD, produce for examination by the representatives of THE BOARD, all his
books of account, bills, invoices, payrolls, subcontracts, time books, daily
reports, bank deposit books, bank statements, check books, cancelled checks,
showing all of his acts and transactions in connection with or relating to or
arising by reason of his contract, and submit himself and persons in his
employment, for examination under oath by any person designated by THE BOARD to
investigate claims made against THE BOARD. Unless the aforesaid statements shall
be made and filed within the time aforesaid and the aforesaid records submitted
for examination and THE CONTRACTOR and his employees submit themselves for
examination as aforesaid, THE BOARD shall be released from all claims arising
under, relating to or by reason of this contract, except for the sums certified
by THE BOARD to be due under the provisions of this contract. It is further
stipulated and agreed that no person has the power to waive any of the foregoing
provisions, and that in any action against THE CITY or THE BOARD to recover any
sum in excess of the sums certified by THE BOARD to be due under or by reason of
this contract, THE CONTRACTOR must allege in his complaint and prove, at the
trial, full compliance with the provisions of this article.
And in addition to the foregoing, after the commencement of an action by THE
CONTRACTOR arising under or by reason of this contract, THE BOARD shall also
have the right by its attorney, upon written notice from said attorney, to
require THE CONTRACTOR to produce for examination under oath by said attorney
the above described books and documents of THE CONTRACTOR and to submit himself
and persons in his employ for examination by said attorney. Unless THE
CONTRACTOR submits the said records, himself and his employees for examination
by the said attorney as aforesaid, the action of THE CONTRACTOR shall be
dismissed.
ARTICLE 66. No claim whatsoever shall be made by THE CONTRACTOR against any
- ----------
officer, agent, or employee of THE BOARD or THE CITY for, on account of,
anything done or omitted to be done in connection with this contract.
ARTICLE 67. No action shall lie or be maintained against THE BOARD or THE
- ----------
CITY upon any claim based upon this contract or arising out of this contract or
out of anything done in connection with this contract, unless such action shall
be commences within one year after the date of acceptance of the work under this
contract by THE BOARD; or if the contract provides that any part of the moneys
earned under the contract be retained for any periods after such acceptance,
actions to recover such retained moneys be commenced within six months from the
date when such retained moneys shall become payable under the terms of the
contract, or, if this contract be terminated or declared abandoned by THE BOARD
Revised November 1, 1996 -32- RS-29
<PAGE>
under the provisions of Article 21 of this contract, such action by THE
CONTRACTOR or anyone claiming under the contract be commenced within six months
from the date of such termination or declaration of abandonment by THE BOARD.
THE CONTRACTOR or anyone claiming under THE CONTRACTOR, shall not be entitled to
any additional time to begin anew any other action if action be commenced within
the times herein specified be dismissed or discontinued, notwithstanding any
provision of the Civil Practice Laws and Rules to the contrary.
ARTICLE 68. (No Text)
- ----------
ARTICLE 69. The acceptance by THE CONTRACTOR, or by his legal representatives
- ----------
or assigns, of the final payment as finally audited and paid by THE COMPTROLLER,
whether such payment be made pursuant to any judgment or order of any court or
otherwise, shall operate as and shall be a full and complete release of THE
BOARD and THE CITY, of and from any and all claims, demands and causes of action
whatsoever, which THE CONTRACTOR and any of his sub-contractors, legal
representatives or assigns have or may have against THE BOARD or THE CITY, by
reason of any matter or thing arising from, connected with or related to this
contract and the performance of the work hereunder, except as to such sums which
shall be expressly stated by THE BOARD, in its resolution of acceptance of the
work, as being sums which are to be retained by THE BOARD and to become payable
after the final payment. No interest shall be allowed upon the amount of the
final payment as audited by THE COMPTROLLER or upon any part thereof which The
Treasurer of THE CITY is ready and willing to pay under the final certificate.
THE CONTRACTOR, however, shall not be barred from commencing an action for
breach of contract under this provision, provided that a detailed and verified
statement of claim is served upon the contracting agency and Comptroller not
later than forty days after the mailing of such final payment. The statement
shall specify the items upon which the claim will be based and any such claim
shall be limited to such items.
GUARANTY AND WARRANTY
---------------------
ARTICLE 70. THE CONTRACTOR does hereby warrant all work and materials to be
- ----------
in full and complete accordance with the contract and all plans, drawings,
addenda, amendments, specifications and requirements appertaining thereto and
that all work and materials are free from any and all defects and imperfections,
and fully suitable for the use and purposes for which each and every part is
intended. THE CONTRACTOR also agrees that, should any defect develop or appear
which THE DIRECTOR finds was not caused by improper use, THE CONTRACTOR shall
promptly upon demand, fully correct, substitute and make good any such defective
material without any cost to THE BOARD and will save THE BOARD harmless against
any claim, demand, loss or damage by reason of any breach of this warranty.
Except as hereinafter provided, the period of this warranty shall commence on
the date on which THE DIRECTOR certifies that all contract work has been
completed.
Revised November 1, 1996 -33- RS-29
<PAGE>
The warranty shall continue to be in full force and effect for the period of one
year, except as to those items with regard to which a longer period of warranty
is specifically stated in the Specifications, and as to those items the
aforesaid warranty shall continue in full force and effect for the respective
periods expressly stated therein.
ARTICLE 71. Where guarantees and bonds are required by the specification, no
- ----------
final payment shall be due until THE CONTRACTOR provides all such guarantees and
bonds required, with sureties satisfactory to THE BOARD and in the form and
amount set forth in the specifications. THE CONTRACTOR shall obtain all
manufacturers' warranties and guarantees of all equipment and materials required
by this contract in the name of THE BOARD, and shall deliver same to THE BOARD.
ARTICLE 72. In case any work that may be required to be performed under the
- ----------
terms of a guaranty is not performed by THE CONTRACTOR promptly after such
notice from THE DIRECTOR, THE BOARD may have such work performed by others and
charge the cost thereof to THE CONTRACTOR.
ARTICLE 72A. The vendor (CONTRACTOR) hereby assigns, sells and transfers to
- -----------
THE BOARD and THE CITY, all right, title and interest in and to any claim and
causes of action arising under the antitrust laws of New York State or the
United States relating to the particular goods or services purchased or procured
by THE CITY under this contract.
INVESTIGATION CLAUSE
--------------------
ARTICLE 73.
- -----------
1.1 The parties to this agreement agree to cooperate fully and faithfully with
any investigation, audit or inquiry conducted by a State of New York or City of
New York 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, leases, permit, or license that is the subject of the investigation,
audit or inquiry.
1.2a 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 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;
1.2b If any person refuses to testify for a reason other than the assertion of
Revised November 1, 1996 -34- RS-29
<PAGE>
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;
1.3a 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.
1.3b 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 1.5 below without THE CITY
incurring any penalty or damages for delay or otherwise.
1.4 The penalties which may attach after a final determination by the
commissioner or agency head may include but shall not exceed:
(a) The disqualification for a period not to exceed five (5) years from
the date of an adverse determination for any person, or any 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
(b) 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 leader 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 lawfully due for goods delivered, work done, rentals, or fees
accrued prior to the cancellation or termination shall be paid by THE
CITY.
1.5 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 (a) and (b) below. He or she may also consider, if relevant and
appropriate, the criteria established in paragraphs (c) and (d) below in
addition to any other information which may be relevant and appropriate;
(a) The parties' 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 disassociation of any
Revised November 1, 1996 -35- RS-29
<PAGE>
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.
(b) The relationship of the person who refuses to testify to any entity
that is a party to the hearing, including, but not limited to, whether
the person whose testimony is sought has an ownership interest in the
entity and/or the degree of authority and responsibility the person
has within the entity.
(c) The nexus of the testimony sought to the subject entity and its
contracts, leases, permits or licenses with THE CITY.
(d) The effect a penalty may have on a unaffiliated and unrelated party or
entity that has a significant interest in an entity subject to
penalties under 1.4 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 1.3 (a) 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.
1.6 (a) 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.
(b) 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.
(c) 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.
(d) 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.
1.7 In addition to and not withstanding 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 any solicitation of money, goods, requests for
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.
Revised November 1, 1996 -36- RS-29
<PAGE>
ARTICLE 74. THE DIRECTOR may, at any time, terminate this contract by written
notice to THE CONTRACTOR and in such event:
1. THE CONTRACTOR shall upon receipt of such notice, unless otherwise directed
by THE DIRECTOR:
(a) stop work on the date specified in the notice;
(b) take such action as may be necessary for the protection and
preservation of THE BOARD's materials and equipment;
(c) assign to THE BOARD or deliver to the site or any other location
designated by THE DIRECTOR, any non-cancellable orders for material
and equipment that is not capable of use except in the performance of
this contract and has been specifically fabricated for the sole
purpose of this contract and not incorporated in the work;
(d) take no action which will increase the amounts payable by THE BOARD
under this contract.
2A. On all lump sum contracts, THE BOARD will pay THE CONTRACTOR;
(i) its direct costs as hereinafter defined or the fair and reasonable
value, whichever is less, for:
(a) the portion of the work completed up to the time of termination,
and
(b) non-cancellable material and equipment that is not capable of use
except in the performance of this contract and has been
specifically fabricated for the sole purpose of this contract but
not incorporated in the work.
B. On all unit price contracts, THE BOARD will pay THE CONTRACTOR:
(i) for all completed units, the units, the unit price stated in the
contract and
(ii) for incomplete units, payment will be made pursuant to the provisions
of section 2A, sub-i and ii of the Article.
C. Direct costs as used in this Article shall mean:
(i) the actual purchase price of material and equipment plus necessary and
reasonable delivery costs.
Revised November 1, 1996 -37- RS-29
<PAGE>
(ii) actual cost of labor involved in construction and installation at the
site, and
(iii)actual cost of necessary bonds and insurance purchased pursuant to the
requirements of this contract less any amounts the have been or should
be returned by THE CONTRACTOR's sureties or insurance carriers.
(iv) Direct costs shall not include overhead.
D. In no event shall any payments under this Article exceed the contract price
for such items.
E. All payments pursuant to this Article shall be in the nature of liquidated
damages and shall be accepted by THE CONTRACTOR in full satisfaction of all
claims against THE BOARD arising out of the termination.
3. On contracts specifying a ceiling ("not-to-exceed" price), the ceiling is
determined, as agreed, to be for limitation purposes only and not as a
guaranteed sum of the value of proceed orders to be granted to the
Contractor. Each proceed order is to be treated as separate and distinct,
the cumulative totals of which will not be in excess of the contract
ceiling.
No additional payments will be paid by the Board, upon termination, of
any difference between the contract ceiling ("not-to-exceed" price)
and the total of all proceed orders.
4. The Board may deduct or set off against any sums due and payable pursuant
to this Article, any claims it may have against the Contractor.
5. All payments pursuant to this Article are subject to audit and the approval
of the Comptroller, pursuant to the provisions of the New York City Charter
and Administrative Code.
FORUM PROVISION CHOICE OF LAW, CONSENT TO JURISDICTION AND
----------------------------------------------------------
VENUE
-----
ARTICLE 75.
- -----------
This contract shall be deemed to be executed in the City of New York, State 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 or
Board of Education (BOARD) arising under this contract 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 of New York. To effect this agreement
and intent, THE CONTRACTOR agrees:
(a) If THE CITY and/or BOARD 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
Revised November 1, 1996 -38- RS-29
<PAGE>
by registered mail addressed to THE CONTRACTOR at its address as set forth
in this contract, or to such other address as THE CONTRACTOR may provide to
THE CITY in writing; and
(b) With respect to any action between THE CITY and/or BOARD 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 New York State Court outside New York
City.
(c) With respect to any action between THE CITY and/or BOARD 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 and/or BOARD in a
court located other than in THE CITY and State of New York, upon request of
THE CITY and/or BOARD, 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 reinstitute the
action in a court of competent jurisdiction in New York City.
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.
ARTICLE 76. (No Text)
- -----------
ARTICLE 77: LOCALLY BASED ENTERPRISE PROGRAM
- ----------- --------------------------------
(a) The Board requests voluntary compliance with the requirements of
Administrative Code 6-108.1 and the regulations promulgated thereunder. No
contract will be awarded unless and until the Board has evaluated efforts
made by the Contractor in attempting to comply with these requirement.
(b) Note that for mayoral agencies:
1. Unless specifically waived by the agency head with the approval of the
Office of Economic and Financial Opportunity, if any portion of the
contract is subcontracted, not less than ten percent of the total
dollar amount of the contract shall be awarded to Locally Based
Enterprises ("LBEs"); except that where less than ten percent of the
total dollar amount of the contract is subcontracted, such lesser
percentage shall be so awarded.
Revised November 1, 1996 -39- RS-29
<PAGE>
2. The prime contractor shall not require performance and payment bonds
from LBE subcontractors.
3. If the contractor has indicated prior to award that no work will be
subcontracted, no work shall be subcontracted without the prior
approval of the agency head, which shall be granted only if the
contractor makes a good faith effort beginning at least six weeks
before the work is to be performed to obtain LBE subcontractors to
perform the work.
4. If the contractor has not identified sufficient LBE subcontractors
prior to award, it shall sign a letter of compliance stating that it
complies with Administrative Code, 6-108.1, recognizes that achieving
the LBE requirement is a condition of its contract, and shall submit
documentation demonstrating its good faith efforts to obtain LBEs.
After award, the contractor shall begin to solicit LBEs to perform
subcontracted work at least six weeks before the date such work is to
be performed and shall demonstrate that a good faith effort has been
made to obtain LBEs on each subcontract until it meets the required
percentage.
5. Failure of the contractor to comply with the requirements of
Administrative Code, 6-108.1 and the regulations promulgated
thereunder shall constitute a material breach of contract. Remedy for
such breach of contract may include the imposition of any or all of
the following sanctions:
(a) reducing a contractor's compensation by an amount equal to the dollar
value of the percentage of the LBE subcontracting requirement not
complied with;
(b) declaring the contractor in default:
(c) where non-compliance is by an LBE, de-certifying and declaring the LBE
ineligible to participate in the LBE program for a period of up to
three years.
ARTICLE 78. AUDIT BY THE BOARD AND CITY - 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 BOARD and by THE
COMPTROLLER of THE CITY pursuant to the powers and responsibilities as conferred
upon said Board and said Comptroller by the New York City Charter and
Administrative Code of THE CITY, as well as all orders and regulations
promulgated pursuant thereto.
THE CONTRACTOR shall submit any and all documentation and justification in
support of expenditures and fees under this agreement as may be required by said
Board and said Comptroller so that they may evaluate the reasonableness of the
charges and shall make its records available to THE BOARD and to THE COMPTROLLER
as they consider necessary.
Revised November 1, 1996 -40- RS-29
<PAGE>
All books, vouchers, records, reports, cancelled checks and any and all similar
material may be subject to periodic inspection, review and audit by the State of
New York, Federal Government and other persons duly authorized by THE CITY.
THE CONTRACTOR shall not be entitled to final payment under the agreement until
all requirements have been satisfactorily met.
ARTICLE 79. That this agreement is authorized subject to the provisions of the
- ----------
Administrative Code and THE CITY Charter relating to a Code of Ethics and to the
policies of THE BOARD relating to conflicts of interest. In the event that THE
CONTRACTOR is, employs, retains, or engages the services of any employee of THE
BOARD or former employee of THE BOARD in violation of the provisions of the
Administrative Code or THE CITY Charter relating to a Code of Ethics or of the
policies of THE BOARD relating to conflicts of interest, THE CONTRACTOR shall
have no claim in law and/or equity under the agreement nor shall THE CONTRACTOR
have any claim in law and/or equity against THE BOARD or any BOARD agent,
servant, or employee.
MACBRIDE PRINCIPLES
-------------------
ARTICLE 80.
- -----------
PART I
- ------
IA. In accordance with section 6-115.1 of the Administrative 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
ten percent or greater ownership interest in the Contract either (a) have
no business operations in Northern Ireland, or (b) shall take lawful steps
in good faith to conduct any business operations they have in Northern
Ireland in accordance with the MacBride principles, and shall permit
independent monitoring of their compliance with such principles.
IB. For purposes of this section, the following terms shall have the following
meanings:
1. "MacBride Principles" shall mean those principles relating to
nondiscrimination in employment and freedom of workplace opportunity
which require employers doing business in Northern Ireland to:
(a) increase the representation of individuals from under represented
religious groups in the work force, including managerial,
supervisory, administrative, clerical and technical jobs;
(b) take steps to promote adequate security for the protection of
employees from under represented religious groups both at the
workplace and while traveling to and from work;
Revised November 1, 1996 -41- RS-29
<PAGE>
(c) ban provocative religious or political emblems from the
workplace;
(d) publicly advertise all job openings and make special recruitment
efforts to attract applicants from under represented religious
groups;
(e) establish layoff, recall and termination procedures which do not
in practice favor a particular religious group;
(f) abolish all job reservations, apprenticeship restrictions and
different employment criteria which discriminate on the basis of
religion;
(g) develop training programs that will prepare substantial numbers
of current employees from under represented 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 under represented religious groups;
(h) establish procedures to assess, identify and actively recruit
employees from under represented religious groups with potential
for further advancement; and
(i) appoint a senior management staff member to oversee affirmative
action efforts and develop a timetable to ensure their full
implementation.
PART II. ENFORCEMENT OF PART I.
- --------
The Contractor agrees that the covenants and representations in Article I above
are material conditions to this contract. In the event the contracting entity
receives information that the Contractor who made 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 either itself or
by engaging another contractor or contractors. In the case of a requirements
contract, the 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.
Revised November 1, 1996 -42- RS-29
<PAGE>
IN WITNESS WHEREOF, THE BOARD and THE CONTRACTOR, have executed this Agreement
in triplicate, one of which is to remain with THE BOARD, one other to be filed
with THE COMPTROLLER, and the third to be delivered to THE CONTRACTOR.
THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, party of the first part
By _________________________________________________________ for the Chancellor
Director, Office of Administration, Division of School Facilities
OR
By ____________________________________________________________
Assistant Secretary
and the CONTRACTOR, party of the second part
NAME: _____________________________________ (affix Corporate Seal here)
ADDRESS: _____________________________________
_____________________________________
By: _____________________________________
(Office or Title)
Revised November 1, 1996 -43- RS-29
<PAGE>
STATE OF NEW YORK
CITY OF NEW YORK ss:
COUNTY OF ______________
BOARD OF On this ____ day of _________________ on the year one thousand
EDUCATION nine hundred and ________________ before me personally came
________________________________________________________________
to me known who, being by me duly sown, did depose and say as
follows: I am designated for the purpose of signing this contract
pursuant to the By-Laws of the Board of Education said Board of
Education being designated in and having authorized the execution
of the above contract, and that I signed my name thereto in
accordance with said By-Laws.
________________________________________________________
Notary Public or Commissioner of Deeds, City of New York
STATE OF NEW YORK
CITY OF NEW YORK ss:
COUNTY OF ______________
INDIVIDUAL On this ____ day of _________________ on the year one thousand
nine hundred and ________________ before me personally came
________________________________________________________________
to me knwon, and known to me to be the same person described in
and who executed the foregoing contract, and acknowledged to me
that he had executed the same.
________________________________________________________
Notary Public or Commissioner of Deeds, City of New York
STATE OF NEW YORK
CITY OF NEW YORK ss:
COUNTY OF ______________
PARTNERSHIP On this ____ day of _________________ on the year one thousand
nine hundred and ________________ before me personally came
________________________________________________________________
to me known and known to me to be a member of____________________
the firm described in and which executed the foregoing contract,
and he acknowledged to me that he subscribed the name of said
term thereto on behalf of said firm for the purposes therein
mentioned.
________________________________________________________
Notary Public or Commissioner of Deeds, City of New York
STATE OF NEW YORK
CITY OF NEW YORK ss:
COUNTY OF ______________
CORPORATION On this ____ day of _________________ on the year one thousand
nine hundred and ________________ before me personally came
________________________________________________________________
to me knows, who being by me duly sowrn, did deposes and say that
he resides in the City of _______________________ and is the
______________________________________ of ______________________
__________________________________ corporations descirbed in and
which executed the foregoing contract that he knows the seal and
said corporation, that he sent affixed to the foregoing contract
is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that by like order
he thereto signed his name and official designation.
________________________________________________________
Notary Public or Commissioner of Deeds, City of New York
<PAGE>
STATE OF NEW YORK
CITY OF NEW YORK ss:
COUNTY OF ______________
ATTORNEY-IN
FACT On this ____ day of _________________ on the year one thousand
nine hundred and ________________ before me personally came
________________________________________________________________
the attorney in fact of _________________________________________
the contractor is the foregoing contract, to me known to be the
individual decribed in and who, as such attorney, executed the
foregoing contract, and acknowledged that he executed the same as
the act and deed of the said party or parties, therein described
as contractor, and for the purposes therein mentioned by virtue
or attorney duly executed and acknowleged by the said party or
parties, bearing the _______________ day of ______________, 19___
that said power of attorney is still in full force.
________________________________________________________
Notary Public or Commissioner of Deeds, City of New York
Exhibit 10.36
AGREEMENT
BETWEEN
EDUCATIONAL VIDEO CONFERENCING, INC.
AND
ATLANTIC DISTRICT LUTHERAN CHURCH MISSOURI SYNOD
FOR THE OFFERING OF
INTERACTIVE TELEVIDEO COURSES
W I T N E S S E T H
AGREEMENT made this day of July 21st, 1999, between the ATLANTIC DISTRICT
LUTHERAN CHURCH MISSOURI SYNOD, (hereinafter referred to as "ATLANTIC DISTRICT
LCMS", located on the Campus of Concordia College, 171 White Plains Road,
Bronxville, New York 10708 and Educational Video Conferencing, Inc.,
(hereinafter referred to as "EVC"), with offices located at 35 East Grassy
Sprain Road, Yonkers, New York 10710.
WHEREAS, ATLANTIC DISTRICT LCMS is an institution interested in providing
opportunities to higher learning for its community, and,
WHEREAS, EVC is a domestic corporation engaged in the business of
Interactive Televideo, and,
WHEREAS, ATLANTIC DISTRICT LCMS, its congregations listed below and EVC
wish to enter into a mutually beneficial agreement whereby EVC will provide
access to EVC transmitted courses from accredited colleges and universities to
each community,
NOW, THEREFORE in consideration of $10.00 in good funds, as well as the
mutual covenants contained herein, the parties hereby agree as follows:
1. EVC shall have the right, for the duration of this agreement and any
renewal hereof to transmit all accredited college courses, non-degree courses,
and other programs offered by accredited colleges, universities and learning
organizations through EVC via Interactive Televideo/Distance Learning
(hereinafter referred to as "ITV/DL"), transmitted to ATLANTIC DISTRICT LCMS and
its congregations, commencing with the Fall Semester, 1999.
2. EVC will provide all telecommunications equipment necessary to provide
access for EVC courses to ITV/DL students at ATLANTIC DISTRICT LCMS site(s).
3. Rooms and Equipment
a. ATLANTIC DISTRICT LCMS will provide a minimum of one (1) room in no
fewer than ten (10) and no more than (20) of its affiliated churches starting
with the Fall, 1999 academic semester. EVC and ATLANTIC DISTRICT LCMS will
thereafter mutually agree on the number of additional member congregations this
contract will cover for future semesters for the remaining term of this
agreement.
<PAGE>
b. Each classroom shall be capable of accommodating the video conferencing
equipment and necessary accessories (hereinafter referred to as "equipment"),
along with accommodating the students enrolled in EVC sponsored classes. Said
room does not have to be dedicated space, and may be used by each ATLANTIC
DISTRICT LCMS congregation for its own use when EVC courses are not running so
long as said use does not infringe on the rights of EVC hereunder, or tend to
impact negatively on the success of the program contemplated by this agreement.
4. Advertising/Publicity
a. ATLANTIC DISTRICT LCMS shall use its best efforts in marketing,
advertising, and promoting EVC's offering of access to video conferenced courses
at ATLANTIC DISTRICT LCMS site(s) in live church service announcements,
advertisements, promotions, marketing plans, etc., which are directed at
community target markets.
5. EVC will be responsible for installing and maintaining appropriate
telecommunication lines for its video conferencing equipment at ATLANTIC
DISTRICT LCMS site(s). Said video conferencing equipment will be installed and
paid for by EVC. All such video conferencing equipment and associated
accessories shall remain the exclusive property of EVC. EVC is under no
obligation to continue to maintain either telecommunication lines or equipment
at any ATLANTIC DISTRICT LCMS site(s) if, during any academic semester, the
total enrollment at EVC sponsored courses falls below the thresholds cited
herein, as set forth in paragraph 11 of this agreement. EVC may, at its sole
discretion, remove part or all of its equipment which is located at ATLANTIC
DISTRICT LCMS site(s) should enrollment fall below the thresholds cited herein.
6. All equipment supplied by EVC is the sole and exclusive property of EVC,
including but not limited to any and all patents, copyrights and trademarks, if
any, associated therewith.
7. a. EVC is responsible for the necessary maintenance, repair, and/or
replacement of televideo equipment supplied to ATLANTIC DISTRICT LCMS site(s)
for the transmission of ITV/DL courses by EVC.
b. EVC will provide reasonably prompt service for repair or replacement of
defective interactive televideo equipment and software as necessary.
8. EVC agrees to make every reasonable effort to maintain its equipment in
good working order. However, EVC is not responsible for service or repair delays
or interruption of service caused by strikes, labor actions, power outages
(other than those limited to site locations alone), acts of God or other matters
beyond EVC's control.
9. ATLANTIC DISTRICT LCMS hereby acknowledges that the ITV/DL programs are
targeted toward the non-traditional student market and therefore agrees to offer
access sites to ITV/DL courses at dates and times appropriate to target markets,
generally between the hours of 5:00 p.m. and 10:00 p.m., Mondays through Fridays
and between 8:00 a.m. and 5:00 p.m. on Saturdays.
10. Each ATLANTIC DISTRICT LCMS congregation must provide a minimum of one
(1) classroom at each church suitable for video conferencing. Each ATLANTIC
DISTRICT LCMS congregation is responsible for all of its own room costs,
including lighting, appropriate student desks (or tables) and chairs,
electricity, and security associated with the offering of ITV/DL courses through
EVC at ATLANTIC DISTRICT LCMS site(s). Each ATLANTIC DISTRICT LCMS congregation
will use its best efforts to make additional classrooms available should
enrollment demands require such.
2
<PAGE>
11. ATLANTIC DISTRICT LCMS agrees to designate one person as the single
point of contact for ATLANTIC DISTRICT LCMS in connection with this contract. It
further agrees that each church involved as a classroom site shall designate one
person as the primary point of contact.
12. Enrollment Requirements and Rental Fees
a. EVC and ATLANTIC DISTRICT LCMS agree that this agreement requires that a
minimum of eighty (80) student course registrations (SCRs) to be enrolled at
ATLANTIC DISTRICT LCMS site(s) each semester at least one (1) month prior to the
start of each semester before EVC will provide video conferencing equipment.
b. Examples of SCRs are:
(1) twenty (20) students enrolled in four (4) courses each; or,
(2) eighty (80) students enrolled in one course each; or,
(3) any combination thereof of students enrolled in EVC offered courses, in
which a minimum total of eighty (80) SCRs is reached in one or more courses.
c. Subject to the minimum enrollments specified in (a) above, EVC shall pay
to appropriate congregations of the ATLANTIC DISTRICT LCMS the sum of $1,000
(one thousand dollars) per semester for each classroom in which the minimum
number of (80) SCRs are registered with all students attending EVC sponsored
courses. Additionally, EVC will compensate one site coordinator at each church
the sum of $500.00 (five hundred dollars) per year to help secure registrations
and administer the Telecommute to College Program.
13. Term of Agreement
a. The basic term of this agreement shall be FIVE (5) YEARS.
b. The parties hereby acknowledge the necessity for allowing ITV/DL
students continuity and ongoing access to ATLANTIC DISTRICT LCMS site(s) for EVC
offered courses and programs.
c. In light of the foregoing, the parties agree that commencing July 1,
2000 and every July 1st thereafter, this agreement shall automatically be
extended for an additional period of ONE (1) YEAR, subject to the conditions
hereinafter contained.
d. In the event that either party should desire not to automatically extend
this agreement, then and in that event, such party shall so notify the other in
writing, by Certified Mail, Return Receipt Requested, no later than April 1 of
any given year, after which the agreement will not be extended for an additional
ONE (1) YEAR, but will have only the Four (4) YEARS of the existing term
remaining.
14. EVC agrees to use its best efforts to negotiate and execute a
reasonable agreement with Concordia College for the offering of undergraduate
and graduate courses through EVC via ITV/DL.
15. The foregoing constitutes the entire agreement between the parties, and
any other agreements or representations, whether verbal or written, if not
contained herein, are void, of no effect, and are not binding upon the parties.
16. No valid modification, amendment, or deletion may be made to this
agreement except in writing and executed by the parties in substantially the
same manner as this agreement.
3
<PAGE>
17. Any and all notices required hereunder shall be by Certified Mail,
Return Receipt Requested, to each party's last known address and shall be deemed
given at the time of mailing.
18. If any portion of this agreement shall be found to be void, voidable,
or unenforceable, it shall not effect the validity of the remainder of the
agreement.
19. EVC may, at its sole option, remove its equipment terminate if any
church site registers less than the stated minimum requirement of eighty (80)
SCRs every academic semester.
20. The parties agree that any disputes or disagreements arising hereunder
or in connection herewith shall be settled by binding arbitration before the
American Arbitration Association at their offices located in White Plains, New
York, and that any judgment awarded thereunder may be entered in any court of
appropriate jurisdiction, and will have full force and effect therein.
21. This agreement shall be construed in accordance with, and governed by,
the laws of the State of New York.
IN WITNESS WHEREOF the parties have hereunto set their hands and seal the
date first appearing above.
EDUCATIONAL VIDEO CONFERENCING, INC.
By: /s/ Dr. John J. McGrath
----------------------------
Dr. John J. McGrath
President
ATLANTIC DISTRICT LCMS MISSOURI SYNOD
By: /s/ David. H. Benke
----------------------------
The Rev. Dr. David H. Benke
President
4
<PAGE>
Congregation Address Authorized Signature Title
1. THE CHRIST ASSEMBLY S.I. NY /s/ Philip P. Saywrayne MISSIONARY AT LARGE
-------------------
2.___________________________________________________________________________
3.___________________________________________________________________________
4.___________________________________________________________________________
5.___________________________________________________________________________
6.___________________________________________________________________________
7.___________________________________________________________________________
8.___________________________________________________________________________
9.___________________________________________________________________________
10.__________________________________________________________________________
11.__________________________________________________________________________
12.__________________________________________________________________________
13.__________________________________________________________________________
14.__________________________________________________________________________
15.__________________________________________________________________________
16.__________________________________________________________________________
17.__________________________________________________________________________
18.__________________________________________________________________________
19.__________________________________________________________________________
20.__________________________________________________________________________
<PAGE>
Educational Video Conferencing
ok St. Peters Lutheran Church ok St. Mathews Lutheran Church
105 Highland Place 202 Sherman Avenue
Brooklyn, NY 11208 New York, NY 10034
Phone 718-647-1007 Phone 212-567-2172
signed Rev. David H. Benke (Judy) Vicar Peter Debra
1-Sep Contact: Twila Evanson signed Contact: Tom Manigold
ok Lutheran Church of The Risen ok St. Mark Lutheran Church
Christ Kimball Avenue & St. Marks Pl.
250 Blake Avenue Yonkers, NY 10704
Brooklyn, New York 11212 Phone 914-237-8199
Phone 718-498-3848 signed Contact Rev. Dr. Gary Carstens
Rev. Eugene A. Koene Contact: Debbie Patton
signed Contact: Nick Trentotola
ok African Immigrant Ministry ok Wartburg Facilities
240 Park Hill Ave., Apt. 5J (home) Wartburg Lutheran Home for
Staten Island, NY 10304 the Aging
212-674-6399 LJM Wartburg Nursing Home
718-876-0014 home 50 Sheffield Avenue
signed Contact Rev. Philip P. Saywrayne Brooklyn, NY 11207
Phone 718-345-2273
Fax 718-485-9236
signed Administrator:
Ms. Ellen Bartoldus
1-Sep Contact Renee Renard,
Asst. Administrator
ok Emanuel Lutheran Church ok Grace Lutheran Church
37-57 104th Street 2930 Valentine Avenue
Corona, NY 11368 Bronx, NY 10458
Phone 718-424-2211 Phone 718-295-4766
Rev. David Elseroad signed Contact: Rev. James Gajadhar
signed Thelma Menedez
Exhibit 10.37
July 26, 1999
Roger Shanafelt
Excite@Home Network
425 Roadway
Redwood City California 94063
RE: EVCI and Excite@Home Marketing Alliance
Dear Roger,
This letter outlines and confirms the terms of the EVCI and Excite@Home
Alliance/Partnering agreement.
Excite@Home is the leading provider of broadband Internet access and interactive
services, providing advertisers with multimedia-rich online advertising and
marketing opportunities and distributing high-speed interactive services to
residences and business.
The Excite portal is an award-winning destination that reaches one of the
largest audiences on the Web, with over 38 million registered customers
providing exceptional targeted advertising opportunities.
EVCI is the leading provider of live interactive two-way video conferenced
distance learning providing access to accredited college courses and degree
programs, test prep and liscencing programs and training from multiple
educational providers.
By providing Excite@Home high-speed Internet customers access to programs
offered by EVCI's educational providers via interactive video conferenced
distance learning (IVC/DL), EVCI will be helping Excite@Home achieve its mission
"to provide high-speed, fully integrated, multimedia services, which will
revolutionize the way people interact with information and each other at home
and at work".
Providing Excite@Home consumers, cable subscribers and others access to programs
offered by EVCI's educational providers over Excite@Home's high-speed Internet
network via interactive video conferenced distance learning (IVC/DL), will
provide a compelling reason for Excite members, cable subscribers and others to
order @Work's high-speed Internet service.
1
<PAGE>
EVCI and Excite@Home will market and promote EVCI and EVCI offerings through-out
the @Home broadband portal and the Excite.com property, thereby educating @Home
an Excite.com customers about EVCI and it's capabilities, drive early @Home
adopters to EVCI to register for college courses, degree programs and training
programs and provide a compelling content reason for the Excite portal users to
up-grade to the @Home Networks high speed Internet service.
EVCI's initial offering to @Home high-speed Internet customers and Excite.com
users will bundle (1) compelling educational and training content, (2) a Dell
Pentium III 500 mg PC video enabled with an Intel Proshare 500 videoconferencing
system and custom distance education front software and (3) @Work Remote high
speed Internet service over cable and @Work Internet DSL where available.
Students registering for one of bundled EVCI's Fast-Track cohort programs will
receive the video enabled computer free and the @Work Remote high speed Internet
service free while they are enrolled in the program.
Additionally, EVCI will mass market its bundled cohort program in major
metropolitan markets in newspapers, radio, cable TV, and bus shelter and
billboard ads. EVCI's will rollout its mass marketing campaign in the NY metro
market followed by NJ, Washington DC, Baltimore, Pittsburgh and Philadelphia.
The term of the agreement shall be 5 years from execution, and renew for 1
additional year on each anniversary of the execution date of this agreement.
Advertising on the @Home and Excite portals:
- -------------------------------------------
The EVCI campaign on @Home will initially target the @Home subscriber base
within AT&T, Comcast, and Cox systems. The first six (6) week period of the
campaign will include 2,000,000 General Rotation half banner impressions and
1,375,000 General Rotation half b*box impressions. Two weeks prior to the end of
the initial 6 weeks campaign period, and each month thereafter during the term
of the Alliance, EVCI will advise @Home of the number impressions to be run
during the next 4 week period of the campaign.
The EVCI campaign on the Excite portal will be on a targeted base. The number
and placement of impressions to be run on the Excite portal during the initial 6
week period TBD by EVCI within 2 weeks. Thereafter, EVCI will advise Excite@Home
on a monthly basis the number and placement of impressions to be run on the
Excite.com portal during the following month.
Design, Creative Direction & Program Development:
- ------------------------------------------------
@Home's Media Services team will team will partner with EVCI to initially
develop two unique campaign executions that are designed to drive traffic and
interest, raise brand awareness and merchandise EVCI's bundled offerings of
educational content, video enable computer and the @WorkRemote high-speed
Internet service. This component includes Broadband/Rich Media consulting;
storyboard, creative concept development;
2
<PAGE>
art direction, creation of interface; design and production of ad units; and
quality assurance testing.
Investment
- ----------
EVCI's investment for Excite@Home's initial creative services described above,
not to exceed $20,000 Net, will be based on a 50% discount. Additional creative
services requested by EVCI during the first three months of the campaign will be
eligible for a 50% discount; thereafter-additional creative services requested
by EVCI will be subject to a 35% discount.
EVCI's investment for the @Home portal portion of the campaign during the first
6 week period for the 3,375,000 total impressions will be $75,000 Net (2,000,000
1/2 banner impressions at cost: $10cpm; 1,375,000 b*box impression at cost:
$40cpm). Additional 1/2 banner and b*box impressions requested by EVCI during
the remainder of the first three months of the campaign will be priced at cost
($10cpm and $40cpm respectively); thereafter additional impressions requested by
EVCI will be based on cost plus 20%.
EVCI's investment for Excite media buys requested by EVCI during the first three
months of the campaign will be based @Work's internal cost thereafter additional
media impressions on Excite requested by EVCI will be based on cost plus 20%.
@Work, the business division of Excite@Home, has agreed to contribute $20,000 to
the cost of the EVCI campaign on the Excite portal and @Home Network.
@Work Access Services Volume Discount Schedule
- ----------------------------------------------
@Work will be EVCI's preferred provider of high speed Internet services for all
bundled sales generated from advertising on the @Home portal, the Excite portal
and parallel advertising EVCI runs in traditional media bundling any Exite@Home
high-speed Internet service.
The following discount schedule shall apply for when EVCI bundles @Home/@Work's
high-speed Internet service via Hybrid Fiber Coax and DSL:
- - Hybrid Fiber Coax (HFC): EVC shall receive a 10% discount from list price
for monthly recurring fees. No discount for installation fees shall apply.
- - DSL, Fractional T-1, Full T-1, and all other Multi-megabit services: EVCI
shall receive discounts of 10% of Monthly Recurring Charges (MRC) for the
total Monthly Recurring Charges up to $25,000 per month, 15% for MRC from
$25,001 to $100,000, and 20% over $100,000. EVCI shall receive discounts of
25% of Non Recurring Charges (NRC) for the total Non Recurring Charges up
to $25,000 per month, 25% for NRC from $25,001 to $100,000, and 30% for NRC
over $100,000.
3
<PAGE>
@Work Co-Marketing Commitment
- -----------------------------
@Work will contribute 10% of the MRC from all non-HFC services collected from
the previous quarter for targeted marketing specific to advancing additional
@Work connections to end customers. @Work will attempt to get MSO participation
for additional marketing support and discounts for HFC Access Services.
Everyone at EVCI is excited about working with Excite@Home and are convinced
that the EVCI and Excite@Home alliance bundling educational content with
high-speed Internet service, will provide a compelling motivation that advances
additional connections for @Work and registrations for EVCI.
Please confirm your agreement with the terms and conditions of the EVCI and
Excite@Home alliance outlined above by signing and returning an original of this
letter by overnight mail and returning a copy by fax.
Very truly yours,
/s/ Dr. Arol I. Buntzman
- -------------------------
Dr. Arol I. Buntzman
Chairman & CEO
Accepted and Agreed To:
EDUCATIONAL VIDEO Excite@Home
CONFERENCING, INC.
By: /s/ Dr. Arol I. Buntzman By: /s/ Roger Shanafelt
--------------------------- --------------------------
Name: Dr. Arol I. Buntzman Name: Roger Shanafelt
-------------------------- --------------------------
Title: Chairman and CEO Title: Dir., Regional & Strategic Accounts
-------------------------- --------------------------------------
Date: August 6, 1999 Date: 7/30/99
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Exhibit 10.38
AGREEMENT BETWEEN EDUCATIONAL VIDEO CONFERENCING, INC. AND
CONCORDIA COLLEGE FOR THE OFFERING OF INTERACTIVE VIDEO
CONFERENCED COURSES
W I T N E S S E T H
AGREEMENT made this 19th day of August, 1999, between Concordia College
with offices located at, 171 White Plains Road, Bronxville, New York 10708-1998
(hereinafter referred to as "CONCORDIA"), and Educational Video Conferencing
Inc., (hereinafter "EVC"), with offices located at 35 East Grassy Sprain Road,
Suite 504, Yonkers, New York 10710.
WHEREAS, CONCORDIA is an institution of higher learning duly certified
by the Education Department of the State of New York and accredited by the
Middle States Association of Colleges and Schools to offer undergraduate and
graduate courses, and,
WHEREAS, EVC is a domestic corporation engaged in the business of
providing access to such courses to consumers by way of interactive video
conferencing and computer conferencing, and,
WHEREAS, CONCORDIA and EVC wish to enter into a mutually beneficial
agreement whereby EVC will provide access to CONCORDIA courses to such
consumers,
NOW, THEREFORE in consideration of $10.00 in good funds, as well as
the mutual covenants contained herein, the parties hereby agree as follows:
1. a.) EVC shall have the right, for the duration of this agreement and any
renewal hereof, to offer all undergraduate courses and programs offered by
CONCORDIA via Interactive Video Conferencing/Distance Learning (hereinafter
"IVC/DL") commencing in October 1999.
b.) For the purposes of this agreement, IVC/DL shall be defined as
live, two way video conferencing, either over desktop computers equipped for
video conferencing or video conferencing room systems, as the case may be, in
which the student can see and hear the professor/instructor and the
professor/instructor can see and hear the individual student. IVC/DL also shall
include one-way video and two-way audio distance learning.
c.) Unless CONCORDIA and EVC agree otherwise in writing, the minimum
class size for the offering of an ITV/DL course shall be Fifteen (15) students.
2. EVC will provide all hardware (except personal computers, modems,
keyboards and monitors), software, and video conferencing equipment
(collectively referred to as "equipment") necessary to provide access for
CONCORDIA courses to IVC/DL students. Students taking IVC/DL courses on desktop
computers must have modern computers capable of being video enabled and function
as an IVC/DL desktop system. The parties acknowledge that it is the primary goal
of EVC to solicit students from corporations, governmental agencies, and
institutions (hereinafter "Institutional Employers") with substantial tuition
reimbursement and that EVC shall address all student use equipment issues with
the Institutional Employers and their employees. In any event, CONCORDIA shall
not be responsible for the cost of any equipment whatsoever at Institutional
Employer locations and/or students homes.
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3. EVC is responsible for costs for marketing, advertising, and promotion
regarding EVC's offering of access to CONCORDIA courses. Unless otherwise
agreed, CONCORDIA will provide brochures, catalogues, course schedules, program
and course descriptions, posters, etc., to EVC for distribution to employees of
EVC's corporate, governmental and institutional clients promoting the CONCORDIA
programs and courses offered through EVC.
4. CONCORDIA shall provide rooms capable of becoming teacher stations. This
includes installing and maintaining adequate telephone lines (ISDN and regular
telephone lines) and electrical outlets. CONCORDIA will be responsible for the
cost of the telecommunication signal transport for video conferenced courses
from teacher stations to the MCU Bridge. EVC assumes responsibility or cost for
obtaining, providing, or paying for telecommunication signal transport for video
conferenced courses from the MCU Bridge to corporate locations and/or students
homes.
5. EVC will be responsible for installing and maintaining up to four (4)
teaching stations in the rooms provided by CONCORDIA to video conference IVC/DL
courses offered through EVC, subject to enrollment. All teaching stations
installed and paid for by EVC shall remain the exclusive property of EVC.
6. All equipment supplied by EVC is the sole and exclusive property of EVC,
including but not limited to any and all patents, copyrights and trademarks, if
any, associated therewith. All classroom, course and program materials or other
information supplied by CONCORDIA, and all rights and interests in said
materials will remain the sole and exclusive property of CONCORDIA.
7. a.) EVC is responsible for the necessary maintenance, repair and/or
replacement of video conferencing equipment supplied to CONCORDIA for IVC/DL
courses.
b.) EVC will provide reasonably prompt service for repair or
replacement of defective interactive video conferencing equipment and software
as necessary.
c.) CONCORDIA will be responsible for the prompt repair and/or
replacement of interactive video conferencing equipment located at CONCORDIA,
which may be damaged through improper or unauthorized use.
d.) CONCORDIA is responsible for the repayment to EVC of the cost of
replacement of any EVC equipment, which is lost or stolen while in CONCORDIA's
custody and control.
8. Neither party shall utilize the other's name or any associated
names, trademarks, copyrights, etc., without prior written consent. Such
permission shall not be unreasonably denied.
9. a.) EVC will provide faculty development to CONCORDIA faculty reasonably
required for the offering of CONCORDIA courses through EVC.
b.) CONCORDIA shall be responsible for obtaining the services of all
faculty participating in courses offered through EVC, including but not limited
to said faculty's salary, benefits (if any) and verification of qualifications.
EVC assumes no responsibility for any costs associated therewith.
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10. EVC is solely responsible to provide site locations for IVC/DL students
to participate in CONCORDIA courses. CONCORDIA assumes no responsibility for
obtaining or maintaining said sites, nor for any rent or other costs associated
therewith.
11. EVC is not responsible for curriculum, course content, faculty
qualifications, course materials or any other aspect of the academic content of
any courses offered hereunder. However, CONCORDIA agrees to be receptive to and
consider EVC input as to course content presentation and delivery of IVC/DL
courses consistent with required academic standards. If the Education Department
of the State of New York should advise that any CORCORDIA activity, curriculum
and/or academic content with EVC does not comply with the Education Department
directives or criteria, the CONCORDIA activity, curriculum and/or academic
content so referenced will neither be provided by CONCORDIA nor
marketed/distributed by EVC.
12. EVC agrees to make every reasonable effort to maintain its equipment in
good working order. However, EVC is not responsible for service or repair delays
or interruption of service caused by strikes, labor actions, power outages
(other than those limited to site locations alone), acts of God or other matters
beyond EVC's control.
13. CONCORDIA hereby acknowledges that the IVC/DL programs marketed by EVC
are targeted toward the non-traditional working adult student market and
therefore agrees to offer IVC/DL courses at dates and times appropriate to the
target market, including the hours of 8:00 a.m. to 11:00 p.m., seven days per
week, and at such other times requested by EVC's Institutional Employers and
their employees, subject to enrollment. And, including but not limited to the
three academic semesters offered each year by CONCORDIA, i.e., Fall, Spring and
Summer. EVC agrees not to schedule course dates and times on Sunday Mornings or
religious holidays when CONCORDIA courses are not offered or at other times
unacceptable to CONCORDIA.
14. a.) The parties hereby acknowledge that this agreement is intended by
the parties to facilitate the offering of college courses, degree programs
and/or courses of study.
b.) CONCORDIA shall attempt to obtain and/or maintain all New York
Department of Education, Middle States Association, and any other accreditation
necessary to the offering of college courses and credits under the applicable
law. Should CONCORDIA lose its accreditation at any time during the term of this
agreement or any renewal hereof, EVC shall have the right to cancel this
contract at the end of the semester in progress, if applicable, or immediately
if no semester is underway.
15. Administrative Functions
a.) CONCORDIA shall be responsible for all of its own administrative
functions (admissions, academic advising, registration, financial aid, etc.)
associated with the offering of IVC/DL courses through EVC. EVC's marketing
function shall include gathering and delivering to CONCORDIA the information
specified by CONCORDIA for these functions.
b.) CONCORDIA will provide to EVC all necessary administrative forms,
applications, written instructions, catalogues, etc. in advance of marketing
courses to any organization. It is understood by the parties that EVC is merely
a conduit and assumes no liability whatever for the accuracy or correctness of
the information in said forms provided by CONCORDIA nor for return of any of the
aforesaid documents to CONCORDIA.
16. Fees
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a.) CONCORDIA shall pay to EVC, on the 10th day of each month, [*] PERCENT
of the gross tuition actually collected by CONCORDIA the preceding month,
exclusive of any institutional aid or grants provided by CONCORDIA, from any
source whatever, from or on behalf of any student employed by an Institutional
Employer customer of EVC registered for and attending accredited college degree
courses being offered through EVC's, said payments to commence the month
immediately following the collection of any such tuition by CONCORDIA. All
checks for courses taken will be made out to CONCORDIA. Additionally, the
percentages calculation of payment to EVC by CONCORDIA will never exceed the
percentage calculated that EVC may subsequently negotiate with any other
Lutheran College or University, and thus may be revised from time to time.
Student application or processing fees payable to CONCORDIA are not part of this
agreement.
b.) EVC shall have the right, on a semi-annual basis, to examine the
books and records of CONCORDIA, pertaining to all students taking courses
through EVC, in order to audit any accounts due and owing the respective
parties. CONCORDIA shall have the right to audit EVC accounts for students
taking CONCORDIA courses on the same basis.
c.) Commencing on September 10, 1999, and continuing on the 10th day
of every month thereafter, CONCORDIA will supply EVC with a list of all students
who have applied to CONCORDIA, and/or registered, for courses through EVC, the
said list to include as available, each student's name, address, telephone
number, social security number, registration, financial aid loans and payment
status. EVC shall provide to CONCORDIA updated information relating to CONCORDIA
students each month.
d.) EVC shall require that each student registering for a course
offered through EVC, sign a waiver and release granting EVC access to said
student's records, said waiver and release form to be provided to CONCORDIA by
EVC, the format of which shall be subject to CONCORDIA's approval, which
approval shall not be unreasonably withheld.
e.) Within THIRTY (30) DAYS of the completion of each Fall, Spring,
and Summer Semester, CONCORDIA shall present to EVC, in writing, any requests
for adjustments or credits on monies already paid to EVC, which credits or
adjustments have been made necessary by an EVC student having dropped a course,
bounced a check, etc. EVC will credit any such valid adjustment to CONCORDIA's
account with one single adjustment in the month following such request by
CONCORDIA. NOTE: This is consistent with CONCORIDA's own reimbursement policy in
three equal installments over the three months immediately following such
request by CONCORDIA.
f.) Students registering for CONCORDIA courses through EVC who are
employed by an Institutional Employer customer of EVC which have a tuition
reimbursement policy for their employees shall be eligible for tuition deferment
from CONCORDIA until completion of the course, thereby enabling said students to
register for CONCORDIA courses through EVC without payment of tuition or fees up
front. Said students shall be required to sign a tuition payment guarantee
providing that they are fully responsible for 100% of all tuition in the event
that, for any reason, they are not reimbursed by their employer.
g.) Students registering for CONCORDIA courses offered through EVC who
are not employed by an Institutional Employer customer of EVC providing tuition
reimbursement to their employees shall be required to pay tuition and fees up
front when registering.
[*] Confidential Portion
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17. a.) CONCORDIA will provide up to four (4) dedicated rooms which will
accommodate teaching stations in order to facilitate IVC/DL courses marketed by
EVC emanating from its campus and will grant EVC, its agents and subcontractors,
reasonable access to said facilities as is required for proper installation,
operation, maintenance and repair of all equipment contemplated herein,
including but not limited to IVC/DL equipment. Said room shall be a minimum of
10 feet by 16 feet with adequate electrical, air conditioning, lighting, etc.,
and be otherwise suitable for use as a video conferencing teacher station. Said
rooms will be provided one at a time subject to registration demand.
18. CONCORDIA's Public Relations Department will provide reasonable
cooperation with EVC in promoting EVC/CONCORDIA Telecommute to College Program
and the IVC/DL courses offered through EVC.
19. CONCORDIA and EVC will, whenever possible, cooperate in applying for
and obtaining, any grants, awards, stipends, fellowships, etc., which are
mutually beneficial to the parties.
20. CONCORDIA shall maintain academic control over all courses and will be
receptive to EVC input as to IVC/DL presentation.
21. CONCORDIA will assign at least one person who at all times will act as
liaison between CONCORDIA and EVC.
22. Term of Agreement
a.) The basic term of this agreement shall be FIVE (5) YEARS.
b.) The parties hereby acknowledge the necessity for allowing IVC/DL
students continuity and ongoing access to courses and programs, so long as there
is adequate registration.
c.) In light of the foregoing, the parties agree that commencing
August 1, 2000 and every August 1st thereafter, this agreement shall
automatically be extended for an additional period of ONE (1) YEAR, subject to
the conditions hereinafter contained.
d.) In the event that either party should desire not to automatically
extend this agreement, then and in that event, such party shall so notify the
other in writing, by Certified Mail, Return Receipt Requested, no later than
April 1 of any given year, after which the agreement will not be extended for an
additional ONE (1) YEAR, but will have only the FOUR (4) YEARS of the existing
term remaining.
23. CONCORDIA shall have the right to offer courses via IVC/DL on its own
to Institutional Employer and/or the employees of any Institutional Employer not
under contract with EVC. In such event, EVC shall not have any obligation to
market, provide any services or equipment, permit the use of EVC's equipment, or
incur any costs in connection with such offerings.
24. CONCORDIA agrees that, for the duration of this agreement and any
extensions hereof, as well as for a period of ONE (1) YEAR immediately following
any termination or expiration thereof, CONCORDIA will not independently video
conference or computer conference its college courses or programs under this
contract to EVC students, clients or their employees.
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25. The parties agree that disclosure of the terms of this agreement to
others will cause EVC irreparable damage to its business. The parties agree,
therefore, that CONCORDIA shall not disclose the terms of this agreement with
the prior written permission of EVC.
26. It is expressly agreed and understood that neither party shall be
liable for incidental, special or consequential damages for any breach or
violation of this agreement.
27. The foregoing constitutes the entire agreement between the parties, and
any other agreements or representations, whether verbal or written, if not
contained herein, are void, of no effect, and are not binding upon the parties.
28. No valid modification, amendment, or deletion may be made to this
agreement except in writing and executed by the parties in substantially the
same manner as this agreement.
29. Any and all notices required hereunder shall be by Certified Mail,
Return Receipt Requested, to each party's last known address and shall be deemed
given at the time of mailing.
30. If any portion of this agreement shall be found to be void,
voidable or unenforceable, it shall not effect the validity of the remainder of
the agreement.
31. This agreement shall be binding on the respective parties' heirs,
successors, and assigns.
32. The parties agree that any disputes or disagreements arising hereunder
or in connection herewith shall be settled by binding arbitration before the
American Arbitration Association at their offices located in White Plains, New
York, and that any judgment awarded thereunder may be entered in any court of
appropriate jurisdiction, and will have full force and effect therein.
33. This agreement shall be construed in accordance with, and governed
by, the laws of the State of New York.
In witness whereof the parties have hereunto set their hands and seal the
date first appearing above.
CONCORDIA COLLEGE
By: /s/ Viji George
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Viji George, Ph.D.
President
EDUCATIONAL VIDEO CONFERENCING, INC.
By: /s/ John J. McGrath
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John J. McGrath, Ph.D.
President
Exhibit 10.39(a)
AGREEMENT dated August 26, 1999 by and between WE MEDIA, INC., a
Delaware corporation with principal offices at 130 William St, New York, NY
10038 ("We Media"), and Educational Video Conferencing Inc. a Delaware
Corporation with principal offices at Grass Sprain Rd, Yonkers, NY 10710
("EVC").
BACKGROUND
EVC has developed a system for delivering high quality distant learning programs
and has formed key relationships with major educational institutions to deliver
fully accredited college courses and degree programs along with continuing
education, from these institutions to students in remote locations. This
delivery mechanism has proven to be a comprehensive system allowing for a
complete educational experience controlled by the instructor during a live class
or delivered asynchronously to students on demand.
We Media has undertaken a mission to provide enabling services to individuals
who have been denied access and choice to the services they need. In this
undertaking, We Media is developing a fourth-generation on-line portal community
that shall exist as the center of interaction for these individuals. This
Internet community will act as a unifying and central location for its members
to interact, learn, grow and meet one another.
Key components of this portal will be the delivery of education, employment and
financial services as well as many more. Utilizing custom technology We Media
will be able to profile and target these services to the members who need them
most. We Media will be able to identify and interact with each and every member
in the pursuit of providing a completely individualized and customized
experience, giving the member access and choice to services they have too long
been denied.
We Media and EVC will enter into a joint marketing agreement to promote their
prospective services to their constituencies.
1. DEFINITIONS.
Terms used in this Agreement which are capitalized shall have the definitions
set forth below or elsewhere in this Agreement. References to Sections or
Exhibits refer to Sections of, or Exhibits to, this Agreement.
1.1. "Advertisement Inventory" means the amount of space in the user
interface of a website of the We Media Properties available for
advertising multiplied by the number of pages actually seen by
End-Users.
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1.2. "Advertisements" means advertising banners, print advertising, media
sponsorships and other advertising displayed on We Media Properties,
subject to the approval of EVC, such approval shall not be
unreasonable denied.
1.3. "Artwork" means the artwork, logos, text, graphics and other
trademarks to be used by We Media for the purposes of promoting EVC
services.
1.4. "End-User" means a registered end-user of the We Media Properties.
1.5. "Enrolled Student" means a person who is currently enrolled and has
paid for one or more courses through EVC.
1.6. "Effective Date" means when the first promotion by We Media begins and
is October 9, 1999 coinciding with a major marketing initiative and
the re-launch of the WeMagazine.com website.
1.7. "EVC Services" means fully accredited college courses and degree
programs along with continuing education, to students in remote
locations.
1.8. "Percentage Shared Revenue" means the percent of EVC's gross revenue
(not including bad debt) taken in from student enrollments distance
learning courses.
1.9. "We Media Properties" means all Website pages, print publications,
radio broadcast and television broadcasts produced by or branded as
the property of We Media.
1.10."User Data" means the demographic information, names and email
addresses of the End-Users.
2. DELIVERABLES: WE MEDIA
2.1. Advertising Dollar commitment. Starting at the Effective Date, We
Media will commit at minimum $1,500,000 dollars in Advertising
Inventory per year throughout the duration of this agreement for the
purpose of promoting EVC services, such Advertising Inventory will
include print and online advertising as described below. The value of
Advertising Inventory is determined by the mean rate paid to We Media
for similar advertising campaigns. The minimum commitment will
increase at a minimum of $1,500,000 per year for every additional
$10,000,000 in gross revenue received by We Media derived from
promotions and initiatives of this Agreement.
2.2. Print advertising. We Media will include reasonably well placed
full-page ad in all issues of We Magazine throughout the duration of
this Agreement. The first
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issue being the 1999 November/December issue, due to hit newsstands on
October 25, 1999.
2.3. Online advertising. The cost of the print advertisement will be
deducted from the minimum commitment leaving an amount that must
committed to Website advertising outlets. This will include, at We
Media's discretion, a combination of one or more of the following:
industry standard banners advertisements, badge advertisements and
direct targeted offers to End-Users.
2.4. Advertising Strategy. We Media will work with EVC to develop a
comprehensive plan for promoting and targeting EVC services to
End-Users through We Media's custom targeting and profiling system.
This plan will be delivered to EVC no later than 20 days prior to the
launch of the first promotion and must be approved by EVC no later
than 10 days prior to launch of the first promotion.
2.5. Promotion. In all reasonably appropriate We Media marketing materials
there will be express mention of EVC being the "Distance Learning
Technology Partner of the We Community." EVC will also be presented by
We Media as an accessibility technology and service provider for the
disabled, their family and friends.
2.6. Online Registration Form. We Media will build, in cooperation with
EVC, an online registration form that will permit interested
individuals to begin the enrollment process for EVC course directly
from We Media Website properties.
2.7. Launch. Both parties shall use commercially reasonable best efforts to
launch the first promotion by Effective Date.
3. DELVIERABLES: EVC
3.1. Promotion.
3.1.1. EVC will promote We Media properties to all current and new
educational and corporate clients and other partners by issuing a
co-branded information memo describing the relationship of this
Agreement and presenting the We Media Properties as embodying the
premier cross-media community providing enabling services to the
disabled, their family and friends.
3.1.2. EVC will make reasonable efforts to encourage its current and new
educational and corporate clients and other partners to present the We
Community to their constituents, members, students or employees.
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3.1.3. Within all reasonably appropriate EVC marketing materials there will
be a We Media logo, URL and text describing We Media as the premier
cross-media community providing enabling services to the disabled,
their family and friends.
EVC will assist We Media in its member acquisition program by making
reasonable efforts to facilitate introductions with current EVC
partners and affiliates.
3.2. Artwork. Any and all Artwork for any advertising must be delivered to
We Media no later than 15 Days prior to the release of promotion.
3.3. Identification of We Media Promotional Enrollments. EVC will make all
reasonable efforts to identify Enrolled Students that have registered
as a result of a We Media promotions.
3.4. Revenue Sharing. Starting at the Effective Date, Percentage Shared
Revenue will initially be valued at [*]% and will be paid to We Media
for Enrolled Students whose enrollment is in response to any We Media
promotion on a quarterly basis, throughout the term of this Agreement.
For every 10,000 Enrolled Students per year, who have registered as a
result of We Media promotions, the Percentage Shared Revenue will
increase by [*]%, with a maximum attainable Percentage Shared Revenue
of [*]%. Likewise if the total number of Enrolled Students per year,
who have registered as a result of We Media promotions, drops by
10,000, the Percentage Shared Revenue will decrease by [*]%. Excluding
year one, if the total number of Enrolled Students per year, who have
registered as a result of We Media promotions, falls below a total of
10,000 the Percentage Shared Revenue will be [*]%.
4. PAYMENT; REPORTS
4.1. Payment; Reports. EVC shall pay We Media, on the tenth day of each
month, the appropriate Percentage Shared Revenue as set forth in
section 3.4 of the Agreement, said payments to commence the month
immediately following the collection of revenue generated by those
students who have registered as a result of We Media promotions.
4.2. Audit of Reports. Each party will maintain complete and accurate books
and records sufficient to prepare accurate reports as required by
Section 4.1. Each shall have the right to cause such books and records
to be audited by an independent certified public accountant selected
by the requesting party. Any such audit shall be performed on seven
(7) days written notice, at the expense of
[*] Confidential Portions
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the requesting party, during normal business hours, no more frequently
than once in a twelve-month period, and in such a manner as to avoid
unreasonable interference with normal business operations, provided,
however, that if any such examination reveals an underpayment to the
requesting party of more than five percent (5%) of the total payment
due for any quarter, then the examined party shall pay the costs of
such examination.
5. OWNERSHIP OF INTELLECTUAL PROPERTY
5.1. Ownership. As between the parties, EVC shall retain all right, title
and interest in and to the distance learning service and its hardware
and software. EVC and We Media will jointly own any data collected as
part of any distance learning program. We Media will own any artwork,
Website and any other content created by We Media.
5.2. Reservation of Rights. As between the parties, any rights to the We
Media Properties and not expressly granted hereunder to EVC are
reserved to We Media, and any rights to hardware, software or
promotional materials belonging to EVC and not expressly granted
hereunder to We Media are reserved to EVC.
6. CONFIDENTIALITY.
Each party shall be entitled to disclose the existence of this
Agreement, but agrees that the financial terms of this Agreement shall
be treated as confidential and shall not be disclosed to any other
party; provided, however, that each party may disclose the financial
terms of this Agreement (a) as required by a court or other
governmental body, or as otherwise required by law, (b) in confidence,
to its legal counsel, accountants, banks, and current and prospective
financing sources and their advisors, or in connection with an actual
or proposed merger or acquisition, or (c) in connection with the
enforcement of its rights under this Agreement.
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7. REPRESENTATIONS AND WARRANTIES.
We Media and EVC each represent and warrant to the other party that:
(a) such party is an entity duly organized, validly existing and in
good standing in the jurisdiction of its formation;
(b) such party has full authority to enter into this Agreement, to
grant the rights granted herein, and to perform the obligations
assumed hereunder; and
(c) this Agreement, when executed by both parties, represents such
party's valid and binding obligation, enforceable against it in
accordance with its terms, subject to certain general legal
enforceability exceptions.
8. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT
SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
9. TERM.
The term of this Agreement shall commence on the Date of the Agreement
and shall continue until the fifth anniversary of the Effective Date.
The parties agree that commencing June 30 2000, and every June 30th
there after, this Agreement shall automatically be extended for an
additional period of one year, subject to the conditions herein after
contained.
9.1. In the event that either party should desire not to automatically
extend this Agreement, then and in that event, such party shall so
notify the other in writing, by Certified Mail, Return Receipt
Requested, no later than June 1st of any given year, after which the
agreement will not be extended for an additional one year, but will
only have the four years of the existing term remaining.
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10. GENERAL PROVISIONS.
10.1.Governing Law. This Agreement shall be governed by and construed under
the laws of the State of New York and the United States (excluding the
U.N. Convention on Contracts for the International Sale of Goods)
without regard to conflict of laws principles. In any action or
proceeding to enforce rights under this Agreement, the prevailing
party shall be entitled to recover costs and attorneys' fees.
10.2.Arbitration. The parties agree that any disputes or disagreements
rising hereunder or in connection herewith shall be settled by binding
arbitration before the American Arbitration Association at their
offices located in White Plains, NY, and that any judgement awarded
thereunder may be entered in any court of appropriate jurisdiction,
and will have full force and effect therein.
10.3.Assignment. Except as otherwise expressly provided in this Agreement,
neither party may transfer or assign its rights or delegate its
obligations hereunder (whether voluntarily or by operation of law)
without the prior written consent of the other party, which consent
shall not be withheld or delayed unreasonably, provided that each
party shall have the right to transfer this Agreement, and assign all
of its rights and delegate all of its obligations hereunder, to any
affiliate, and to any successor by way of merger or consolidation or
in connection with the sale or transfer of substantially all of its
business and assets relating to this Agreement.
10.4.Notices. All notices under this Agreement shall be in writing and
delivered personally or by facsimile, commercial overnight courier, or
certified or registered mail, return receipt requested, to a party at
its respective address set forth herein.
10.5.Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter herein and
merges and supersedes all prior discussions between them. No
modification of or amendment to this Agreement, nor any waiver of any
rights under this Agreement, shall be effective unless in writing
signed by the party against whom it is to be enforced. Nothing express
or implied in this Agreement is intended to confer, nor shall anything
herein confer, upon any person other than the parties and the
respective successors or permitted assigns of the parties, any rights,
remedies, obligations or liabilities whatsoever.
10.6.Severability. If the application of any provision or provisions of
this Agreement to any particular facts or circumstances shall be held
to be invalid or unenforceable by any court of competent jurisdiction,
then: (i) the validity and enforceability of such provision or
provisions as applied to any other particular facts or circumstances
and the validity of other provisions of this Agreement shall not in
any way be affected or impaired thereby; and (ii) such provision or
provisions shall be reformed without further action by the parties
hereto and only to the extent necessary to make such
7
<PAGE>
provision or provisions valid and enforceable when applied to such
particular facts and circumstances.
10.7.Independent Contractors. The parties are independent contractors, and
nothing in this Agreement shall be construed to create a joint venture
or partnership.
10.8.Force Majeure. A party will not be deemed to have materially breached
this Agreement to the extent that performance of its obligations or
attempts to cure any breach are delayed or prevented by reason of an
act of God, fire, natural disaster, accident, act of government,
shortage of equipment, materials or supplies beyond the reasonable
control of such party, or any other cause beyond the reasonable
control of that party (a "force majeure event"); provided that the
party whose performance is delayed or prevented promptly notifies the
other party of the nature and duration of the force majeure event.
10.9.Compliance with Laws. Each party shall comply with all laws and
regulations applicable to it.
In witness whereof, both parties have caused this Agreement to be executed as of
the date written above.
We Media, Inc.
/s/ Jordan D. Serlin
- --------------------------------------------
Jordan Serlin, CEO
/s/ Alexander Spinelli
- --------------------------------------------
Alexander Spinelli, Executive Vice President
AND
Educational Video Conferencing, Inc.
/s/ Dr. John J. McGrath
- --------------------------------------------
Dr. John McGrath, President
8
Exhibit 10.39(b)
II. NFP EDUCATIONAL SERVICE PROVIDER AGREEMENT
AGREEMENT dated September 22, 1999 by and between WE MEDIA, INC., a
Delaware corporation with principal offices at 130 WILLIAM ST., NEW YORK, NY
10038 ("WE MEDIA"), and Educational Video Conferencing Inc. a Delaware
Corporation with principal offices AT EAST GRASSY SPRAIN RD, YONKERS, NY 10710
("EVC").
BACKGROUND
EVC has developed a system for delivering high quality distant learning programs
and has formed key relationships with major educational institutions to deliver
fully accredited college courses and degree programs along with continuing
education, from institutions to students in remote locations. This delivery
mechanism has proven to be a comprehensive system allowing for a complete
educational experience controlled by the instructor during a live class or
delivered asynchronously to students on demand.
We Media has undertaken a mission to provide enabling services to individuals
who have been denied access and choice to the services they need, including the
disabled, thier families and friends. In this undertaking, We Media is
developing a fourth-generation on-line portal community that shall exist as the
center of interaction for these individuals. This Internet community will act as
a unifying and central location for its members to interact, learn, grow and
meet one another.
In its Mission to develop a complete, all-inclusive community to provide
enabling services to those in need, We Media is partnering with not-for-profit
organizations. These partnerships will provide not-for-profit organizations
access to technology and enabling services that has not been possible in the
past.
Given the communication, technological and community capabilities of We Media
and the educational and distance learning expertise of EVC, We Media and EVC
hereby desire to enter upon this Agreement, to provide We Media's not-for-profit
(NFP) partners educational and distance learning services. Herein is defined the
agreed upon provisions of this partnership.
1. DEFINITIONS.
Terms used in this Agreement which are capitalized shall have the definitions
set forth below or elsewhere in this Agreement. References to Sections or
Exhibits refer to Sections of, or Exhibits to, this Agreement.
1.1. "End-user" means a person serviced by a NFP, which We Media has under
contract.
<PAGE>
1.2. "Enrolled Student" means a person who is currently enrolled and has
paid for one or more courses through EVC.
1.3. "EVC ServiceS" means the services provided by EVC as described and
agreed to in the agreement in Appendix A
1.4. "Joint Marketing Agreement" means the agreement between EVC and We
Media dated August 26 1999, signed Dr. John McGrath, President EVC,
Cary Fields, President We Media, Jordan Serlin, CEO We Media and
Alexander Spinelli, Executive Vice President We Media.
1.5. "NFP" means a not-for-profit organization servicing the disabled, their
family or friends.
1.6. "PErcentage WE Media Revenue to EVC" means the percent of We Media's
gross revenue (not including bad debt) received from NFP's for
providing educational and distance learning services utilizing EVC as
the technology provider.
1.7. "Percentage EVC Revenue to WE Media" means the percent of EVC's gross
revenue (not including bad debt) received from enrolled students of
distance learning courses offered from EVC acquired partners that
require payment for the production and presentation of said course.
1.8. "User Data" means the demographic information, names and email
addresses of the End-Users.
1.9. "WE Media Properties" means all Website pages, print publications,
radio broadcast and television broadcasts produced by or branded as
the property of We Media.
2. COMMITMENTS
2.1. Promotion. We Media will present EVC as the "distance learning
technology partner of the We Community" to all We Media NFP partners.
We Media will encourage NFP partners to participate in current EVC
course offerings.
2.2. Standard Enrollments. Any Enrolled Student that will be attributed, in
writing, as arising from any We Media/NFP relationship, discussions or
agreements will be counted as a We Media promotional enrollment as set
forth in the provisions of the Joint Marketing Agreement.
2.3. Service and Business OPportunity Creation. We Media will work with NFP
partners to develop new services and business opportunities based
around EVC
<PAGE>
distance learning services. These services may consist of NFP courses
offered to NFP members, employees or constituents.
2.4. Relationship Management. We Media will manage all aspects of the
relationships with NFP partners, any and all commitments with regard
to EVC must be approved by the president of EVC.
2.5. Contract Management. We Media maintains the right to negotiate all
aspects of all contracts with NFP partners. EVC will be consulted
concerning any and all aspects of NFP contracts that involve EVC
commitment or participation. All sections concerning EVC must be
submitted to EVC for approval, with the understanding that such
approval shall not be unreasonably denied.
2.6. Agreements. We Media and EVC may enter into agreements on a case by
case basis specifying the details and special case provisions that
each contract between We Media and a NFP requires. Still We Media and
EVC will abide by the terms and provisions set forth in this Agreement
unless otherwise stated in such case-by-case agreements.
2.7. Rights of First Refusal. We Media will grant EVC the Right of First
Refusal to participate in any and all current or future NFP projects.
If participation is refused by EVC, We Media may retain the services
of any other distance learning technology provider. If EVC chooses to
participate in a NFP project, all reasonable efforts must be made by
both EVC and We Media to come to mutually agreeable terms for said NFP
project. If all reasonable measures have been exhausted and EVC and We
Media can not agree, We Media may retain the services of any other
distance learning technology provider.In turn, EVC will grant We
Media the Right of First Refusal to work with any NFP, organization,
company or institution servicing the disabled community, their
families and friends, that EVC is currently or will at some future
time enter into an agreement with.
2.8. Charges to WFP. We Media has the right to negotiate with NFPs any and
all fees to be paid to We Media by NFPs for the delivery of
educational services provided to the NFP as part of We Media's NFP
program offering. All fees with respect to the provision of distance
learning services from EVC must be approved by EVC prior to the
execution of any individual NFP agreement that includes provisions
relating to the delivery of distance learning services by EVC. The
negotiation of fees between We Media and NFPs excludes tuition of
programs or courses provided by EVC from EVC acquired educational
partners. EVC may choose to wave the right of final approval of fees
to be paid by NFPs.
2.9. Revenue Sharing.
2.9.1. Percentage EVC Revenue to We Media will be determined by following the
provisions set forth in the Joint Marketing Agreement.
<PAGE>
2.9.2. Referring to programs developed specifically for NFPs and not
covered by the Joint Marketing Agreement, unless otherwise
specified in forthcoming agreements specific to particular NFPs,
the Percentage We Media Revenue to EVC will be set at a value of
[*]%. Any deviation, in any direction from this value will
mutually agreed upon by EVC and We Media.
2.10. Services. EVC will provide EVC Services and may provide other services
to We Media NFP partners as set forth in each NFP specific agreement
executed by We Media and EVC.
2.11. WE Media Efforts. We Media will initially dedicate at least 20% of its
NFP strategic alliance program efforts to promoting the provisions as
set forth in this Agreement. The amount of effort dedicated to this
end will increase or decrease based upon evaluations of the success of
the EVC/We Media initiative as defined in this Agreement, the first
evaluation coming three months after the effective date of this
agreement. The determination of success of the initiative will be
based upon the level of positive responses and willingness to
participate in distance learning programs shown by NFPs.
2.12. Additional Efforts. Given the nature of many NFP groups with whom We
Media will be forming relationships, there may be special, additional
and/or unique needs and/or requirements for the delivery of distance
learning programs, EVC and We Media will therefore make all reasonable
efforts to deliver distance learning courses in light of such possible
and anticipated extenuating circumstances. EVC and We Media will
utilize their other relationships and partnerships in an attempt to
provide said services. This includes leveraging relationships with
international organization, telecommunication industry relationships
and any other relationships that may assist in the delivery of
distance learning courses.
2.13. Sanctity of Partners. We Media and EVC agree that neither company may
contact, approach or enter into an agreement with any NFP in
accordance with this agreement that the other is currently pursuing,
in discussions with or has an agreement with without express written
consent from the other party.
4. Payment; Reports
4.1. Payment; Reports. Payments and reports will comply with the provisions
of each contract covering the service offerings.
4.2. Audit of Reports. Each party will maintain complete and accurate books
and records sufficient to prepare accurate reports as required by
Section 4.1. Each shall have the right to cause such books and records
to be audited by an independent certified public accountant selected
by the requesting party. Any
[*] Confidential Portion
<PAGE>
such audit shall be performed on seven
(7) days written notice, at the expense of the requesting party,
during normal business hours, no more frequently than once in a
twelve-month period, and in such a manner as to avoid unreasonable
interference with normal business operations, provided, however, that
if any such examination reveals an underpayment to the requesting
party of more than five percent (5%) of the total payment due for any
quarter, then the examined party shall pay the costs of such
examination.
5. OWNERSHIP OF INTELLECTUAL PROPERTY
5.1. Ownership. As between the parties, EVC shall retain all right, title
and interest in and to the distance learning service and its hardware
and software. EVC and We Media will jointly own any data that is
collected as part of any distance learning program. EVC and We Media
will jointly own, where feasible, and not in conflict with educational
providers' policies and procedures, state and federal accreditation
bodies and all applicable state and federal laws, any content,
courseware or programs, either electronic or traditional created for
any NFP. We Media will own any artwork, Website and any other content
created by We Media. EVC will own any artwork, Website and any other
content created by EVC.
5.2. Reservation of Rights. As between the parties, any rights to the We
Media Properties and not expressly granted hereunder to EVC are
reserved to We Media, and any rights to hardware, software or
promotional materials belonging to EVC and not expressly granted
hereunder to We Media are reserved to EVC.
6. CONFIDENTIALITY.
Each party shall be entitled to disclose the existence of this Agreement,
but agrees that the financial terms of this Agreement shall be treated as
confidential and shall not be disclosed to any other party; provided,
however, that each party may disclose the financial terms of this Agreement
(a) as required by a court or other governmental body, or as otherwise
required by law, (b) in confidence, to its legal counsel, accountants,
banks, and current and prospective financing sources and their advisors, or
in connection with an actual or proposed merger or acquisition, or (c) in
connection with the enforcement of its rights under this Agreement.
7. REPRESENTATIONS AND WARRANTIES.
<PAGE>
We Media and EVC each represent and warrant to the other party that:
(a) such party is an entity duly organized, validly existing and
in good standing in the jurisdiction of its formation;
(b) such party has full authority to enter into this Agreement, to
grant the rights granted herein, and to perform the
obligations assumed hereunder; and
(c) this Agreement, when executed by both parties, represents such
party's valid and binding obligation, enforceable against it
in accordance with its terms, subject to certain general legal
enforceability exceptions.
8. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND ON ANY
THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH
PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. TERM.
The term of this Agreement shall commence on the Date of the Agreement and
shall continue until the fifth anniversary of the effective date. the
parties agree that commencing june 30 2000, and every june 30th there
after, this Agreement shall automatically be extended for an additional
period of one year, subject to the conditions herein after contained.
9.1. In the event that either party should desire not to automatically
extend this Agreement, then and in that event, such party shall so
notify the other in writing, by Certified Mail, Return Receipt
Requested, no later than june 1st of any given year, after which the
agreement will not be extended for an additional one year, but will
only have the four years of the existing term remaining.
10. GENERAL PROVISIONS.
10.1. Governing Law. This Agreement shall be governed by and construed under the
laws of the State of New York and the United States (excluding the UN
Convention on Contracts for the International Sale of Goods) without
regard to conflict of laws principles. In any action or proceeding to
enforce rights under this Agreement, the prevailing party shall be
entitled to recover costs and attorneys' fees.
<PAGE>
10.2. Arbitration. The parties agree that any disputes or disagreements rising
hereunder or in connection herewith shall be settled by binding
arbitration before the American Arbitration Association at their offices
located in White Plains, NY, and that any judgment awarded thereunder may
be entered in any court of appropriate jurisdiction, and will have full
force and effect therein.
10.3. Assignment. Except as otherwise expressly provided in this Agreement,
neither party may transfer or assign its rights or delegate its
obligations hereunder (whether voluntarily or by operation of law) without
the prior written consent of the other party, which consent shall not be
withheld or delayed unreasonably, provided that each party shall have the
right to transfer this Agreement, and assign all of its rights and
delegate all of its obligations hereunder, to any affiliate, and to any
successor by way of merger or consolidation or in connection with the sale
or transfer of substantially all of its business and assets relating to
this Agreement.
10.4. Notices. All notices under this Agreement shall be in writing and
delivered personally or by facsimile, commercial overnight courier, or
certified or registered mail, return receipt requested, to a party at its
respective address set forth herein.
10.5. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter herein and
merges and supersedes all prior discussions between them. No modification
of or amendment to this Agreement, nor any waiver of any rights under this
Agreement, shall be effective unless in writing signed by the party
against whom it is to be enforced. Nothing express or implied in this
Agreement is intended to confer, nor shall anything herein confer, upon
any person other than the parties and the respective successors or
permitted assigns of the parties, any rights, remedies, obligations or
liabilities whatsoever.
10.6. Severability. If the application of any provision or provisions of this
Agreement to any particular facts or circumstances shall be held to be
invalid or unenforceable by any court of competent jurisdiction, then: (i)
the validity and enforceability of such provision or provisions as applied
to any other particular facts or circumstances and the validity of other
provisions of this Agreement shall not in any way be affected or impaired
thereby; and (ii) such provision or provisions shall be reformed without
further action by the parties hereto and only to the extent necessary to
make such provision or provisions valid and enforceable when applied to
such particular facts and circumstances.
10.7. Independent Contractors. The parties are independent contractors, and
nothing in this Agreement shall be construed to create a joint venture
or partnership.
10.8. Force Majeure. A party will not be deemed to have materially breached this
Agreement to the extent that performance of its obligations or attempts to
cure any breach are delayed or prevented by reason of an act of God, fire,
natural disaster, accident, act of government, shortage of equipment,
materials or supplies beyond the reasonable control of such party, or any
other cause beyond the reasonable control of
<PAGE>
that party (a "force majeure
event"); provided that the party whose performance is delayed or prevented
promptly notifies the other party of the nature and duration of the force
majeure event.
10.9. Compliance With Laws. Each party shall comply with all laws and
regulations applicable to it.
In witness whereof, both parties have caused this Agreement to be executed as of
the date written above.
We Media, Inc.
/s/ Alexander Spinelli
- -------------------------------------------
Alexander Spinelli, Executive Vice President
/s/ Cary Fields
- -------------------------------------------
Dr. Cary Fields, President
AND
Educational Video Conferencing, Inc.
/s/ Dr. John J. McGrath
- -------------------------------------------
Dr. John McGrath, President
<PAGE>
EDUCATIONAL VIDEO CONFERENCING INC.
DESCRIPTION OF SERVICES
Educational Video Conferencing, Inc. ("EVC") is the technological and education
bridge that links content providers to users. EVC represents content providers,
consisting of tier one, tow and three colleges and universities and professional
development and training institutions, each of which may offer accredited
courses, degrees (both undergraduate and graduate) programs, certificate
programs, job skill training and other educational opportunities.
EVC also acts as the technology bridge for both students and educators. EVC's
delivery models connect students in a variety of methods to receive courses
either a live and interactive synchronous delivery method or an on-line
asynchronous delivery method. As part of this business construct as a technology
and content bridge, EVC works closely with distance learning educators in the
use of technologically advanced teaching stations, effective program designs,
delivery and re-creating the classroom experience as the final link that
completes the service offered by EVC.
EVC will provide the following services and offerings as part of EVC's
agreements with WE Media, Inc. ("We Media"). These services and offerings will
be extended as long as they are both financially and reasonably feasible. If, at
any time, EVC changes these offerings WE Media will be notified in writing prior
to the effective date of the change. The offerings and services are broadly
defined as follows:
1. EVC will provide both the educational institution and
receiving institution with video conferencing and distance
learning hardware and software at no cost to We Media,
Subject to EVC;s standard policies and procedures.
2. EVC will provide students that sign up for 15 (3 credit)
undergraduate courses or 8 (3 credit) graduates courses with a
free video enabled computer and high speed Internet monthly
charges, subject to EVC's standard policies and procedures
3. EVC will instruct educational personnel, who will be
moderating, managing, teaching or delivering a distance
learning course over EVC systems, how to prepare, deliver
and transfer educational courses through the EVC distance
learning system.
4. EVC will extend its other promotional offerings as part of
its agreements with We Media, where reasonable.
IN WITNES WHEREOF, the parties have executed this Agreement as dated below.
September 7, 1999
We Media, Inc. Educational Video Conferencing,
Inc.
/s/ Alexander Spinelli /s/ Dr. John J. McGrath
- ------------------------- --------------------------------
Alexander Spinelli, EVP Dr. John McGrath
Exhibit 10.40
CO-MARKETING AGREEMENT
This Agreement is made as of this 1st day of September 1999 ("Effective Date"),
by and between Educational Video Conferencing, Inc., a Delaware corporation,
having offices at 35 East Grassy Sprain Road, Yonkers, New York ("EVC"), and
Bell Atlantic Network Services Inc., a Delaware corporation, having offices at
1320 North Court House Road, Arlington, Virginia 22201 ("Bell Atlantic").
WHEREAS, EVC offers educational video conferencing services;
WHEREAS, EVC desires (i) to pay Bell Atlantic a sales commission to sell EVC's
products, and (ii) to pay Bell Atlantic a referral fee for sales referred to EVC
by Bell Atlantic,
NOW, THEREFORE, in consideration of the mutual covenants herein the parties
agree as follows:
1. Definitions
A. "Add-On Sale" means the provision of additional Services, for an
additional fee, to an End User, who is already party to a Sale or EVC Sale.
B. "Affiliate" means an entity that owns, directly or indirectly, greater
than fifty percent (50%) voting interest in a party ("Parent"), or any entity in
which a party or its Parent owns, directly or indirectly, at least twenty-five
percent (25%) voting interest.
C. "Bell Atlantic Region" means any and all of the areas in which Bell
Atlantic or any Affiliate provides local telephone service.
D. "CPE" means any and all of the equipment listed on Schedule 4, and any
associated software or installation services.
E. "Direct Sale" means a sale of the Services in which a Bell Atlantic
salesperson or sales agent actively participates in negotiating and closing the
sale with the assistance of EVC during the first twelve months of this
Agreeement.
F. "End-User" means a person or entity that purchases the Service pursuant to
a Direct Sale, Referral, Add-On Sale or EVC Sale.
G. "End User Contract" means an agreement signed between EVC and an End User
for the Service.
H. "EVC Sale" means EVC's provision of the Service to and End User where such
sale was stimulated by a co-marketing or advertising funded in whole or in part
by Bell Atlantic and does not qualify as a Sale.
I. "Monthly Service Revenue" means, with respect to each Sale, Add-On Sale
and EVC Sale, the total fees collected from End Users for the Service during a
calendar month, excluding amounts attributable to any taxes and inter-LATA
transport.
NOTICE
Not for use or disclosure outside the Bell Atlantic Companies
except under written agreement.
1
<PAGE>
J. "Referral" means a written notice from Bell Atlantic to EVC identifying a
prospective End User.
K. "Sale" means EVC's provision of the Service to an End User resulting from
a Direct Sale or Referral; provided that a Sale shall not include EVC's
provision of the Service to any of the entities listed on Schedule 3.
L. "Service" means the educational video conferencing service described in
Schedule 1 and any modifications thereto during the term.
2. Term and Termination
A. This Agreement shall become effective as of the Effective Date and shall
continue in effect for three (3) years thereafter, unless earlier terminated as
provided herein. The term will automatically extend an additional year (to a
total of four (4) years) unless either party notifies the other of its intent
not to extend the Agreement within ninety days prior to the end of the first
year; and the term will extend another year (to a total of five (5) years)
unless either party notifies the other of its intent not to extend the Agreement
within ninety (90) days prior to the end of the second year.
B. Either party may earlier terminate this Agreement for a material breach by
the other party that is not cured by the other party using its best efforts
within a commercially reasonable time period, not to exceed sixty (60) days from
receipt of written notice of the breach. Such notice shall specifically identify
any and all breaches.
C. Bell Atlantic may terminate this Agreement immediately in the event EVC is
subject to a change in control, by merger, acquisition, consolidation or
otherwise whereby EVC becomes owned or affiliated with a competitor of Bell
Atlantic or any Bell Atlantic Affiliate.
D. EVC acknowledges that Dr. Arol Buntzman and Dr. John McGrath are key
employees of EVC and their continued employment by EVC is a material inducement
for Bell Atlantic in entering into this Agreement. EVC will provide Bell
Atlantic with at least six (6) months notice prior to either one of these
individuals leaving the employment of EVC (other than separation due to
disability and death) and will provide Bell Atlantic with a succession plan.
E. All obligations of the parties incurred prior to the effective date of
termination or expiration of this Agreement shall survive such termination or
expiration.
3. Sales By Affiliates
Any Bell Atlantic Affiliate may also make Direct Sales and Referrals under this
Agreement, and such Direct Sales and Referrals shall be deemed to have been made
by Bell Atlantic.
NOTICE
Not for use or disclosure outside the Bell Atlantic Companies
except under written agreement.
2
<PAGE>
4. Marketing
A. Direct Sales and Referrals. Bell Atlantic may make Direct Sales and
----------------------------
Referrals. Bell Atlantic shall assign sales support personnel, who have
completed training courses described below, to work with other Bell Atlantic
sales personnel and End Users to determine and evaluate End User requirements
for the Service.
B. Promotion. Bell Atlantic may distribute EVC's promotional literature
---------
relating to the Service (EVC master documents to be supplied without charge by
EVC). EVC shall be responsible for ensuring that such literature complies with
all applicable laws, rules and regulations. Bell Atlantic shall bear all costs
associated with its duplication and distribution of EVC literature. Bell
Atlantic shall not make changes to the literature without the prior consent of
EVC, which shall not be unreasonably withheld. Bell Atlantic may also develop
its own promotional literature relating to the Service at its own expense
subject to EVC's consent, not to be unreasonably withheld. EVC hereby grants to
Bell Atlantic and its Affiliates a non-exclusive and non-transferable right and
license, without the right to grant sublicenses to any party, to use EVC's
trademarks during the term of this Agreement in connection with the promotion
and advertising of the Services and the solicitation of orders for the Services
in the Bell Atlantic Region provided that the EVC trademarks shall be used by
Bell Atlantic in accordance with EVC's standards, specifications and
instructions. Bell Atlantic shall acquire no right, title or interest in the EVC
trademarks other than the foregoing limited license, and Bell Atlantic shall not
use any EVC trademarks, or words, phrases or symbols confusingly similar to any
EVC trademarks, as part of Bell Atlantic's corporate or tradename without the
prior written consent of EVC.
C. EVC Advertising. EVC will provide Bell Atlantic with the opportunity to
----------------
market Bell Atlantic products and services using EVC's marketing and advertising
that promote the Services. The parties will share the costs of such co-marketing
on a case-by-case basis, and in such event will share costs only to the extent
specifically agreed to in a writing signed by authorized representatives of each
party.
D. Demonstrations. Bell Atlantic may demonstrate the Service to prospective
--------------
End Users. EVC shall provide support for such demonstrations as set forth in
Section 5.
E. Billing. EVC shall bill and collect for the Services, and shall remit fees
-------
owed to Bell Atlantic pursuant to Section 6; provided, however, that Bell
Atlantic will bill and collect for the Services from End Users to the extent
Bell Atlantic and EVC execute a billing and collection therefor.
5. EVC Support
A. Areas for Support. EVC shall provide the Services throughout the Bell
------------------
Atlantic Region.
B. Sales.
-----
(i) EVC shall use its best efforts to close Sales, Add-On Sales and EVC
Sales.
(ii) EVC will provide notice of its acceptance or rejection of a Referral
within ten (10) days of receipt of the Referral. EVC may reject a Referral only
if it specifically marketed (i.e., by direct customer contact with a concrete
proposal, and not through general marketing
NOTICE
Not for use or disclosure outside the Bell Atlantic Companies
except under written agreement.
3
<PAGE>
or advertising) the Service to the End User being referred within the three (3)
months immediately preceding the date of the Referral.
(iii) EVC shall execute an End User Contract for each Direct Sale,
accepted Referral and EVC Sale, and shall provide the Service pursuant to such
End User Contract, except in cases where: EVC cannot provide the Service solely
due to a bona fide technical incompatibility and, as a result, EVC does not at
that point or within twelve (12) months thereafter, provide the Service directly
or indirectly to such End User.
(iv) Bell Atlantic will notify EVC when it intends to pursue a Direct
Sale. EVC will participate in the negotiation and will attempt to close each
Direct Sale opportunity.
C. Add-On Sales. Add-On Sales shall be qualified and accepted by EVC in the
-------------
same manner in which Sales are processed.
D. Ancillary Services. EVC shall at no additional charge refer all End User
-------------------
requests for the purchase and/or installation of CPE, and for the purchase of
telecommunications services that Bell Atlantic or an Affiliate is allowed to
offer by law, exclusively to Bell Atlantic or an Affiliate that Bell Atlantic
may from time to time designate. Alternatively, to the extent EVC decides to
sell CPE or telecommunications services directly to End Users, it will purchase
such CPE and telecommunications services exclusively from Bell Atlantic or an
Affiliate that Bell Atlantic may designate. Bell Atlantic shall offer such CPE
and telecommunications services at competitive rates.
E. Support. EVC shall, without charge to Bell Atlantic, provide reasonable
-------
amounts of technical and sales support to Bell Atlantic in connection with Bell
Atlantic's performance of this Agreement. This support shall be related to the
Service, and not the telecommunications services or CPE provided by Bell
Atlantic or third parties. Reasonable technical support shall include, but shall
not be limited to, the following: (i) providing a toll free number for use by
authorized Bell Atlantic personnel to call EVC for information relating to End
User requirements for the Service; (ii) responding by telephone within three (3)
business days to Bell Atlantic inquiries concerning End User requirements for
the Service; and (iii) providing Bell Atlantic with names and telephone numbers
of authorized personnel who can respond to inquiries about the Service and End
User requirements outside of normal business hours.
F. Defective Service Complaints. EVC shall immediately report to Bell
------------------------------
Atlantic any known problems with the Service that might impact any EVC Sale,
Sale or Add-On Sale.
G. Promotion and Demonstration of Service. EVC shall provide customary and
---------------------------------------
standard demonstration facilities for the Service and related and support
sufficient to allow Bell Atlantic to demonstrate the Service, at convenient
locations, to prospective End Users.
H. Help Desk. After the Service is installed, the End User shall be provided
---------
with two (2) contact telephone numbers, one for Bell Atlantic to handle all
issues related to Bell Atlantic provided network transport, hardware or
communication devices at the End User location and one for EVC to handle all
Service related issues. Each call shall be entered into a log book which will
track the issues addressed, (i.e., network or Service issue). If either party
receives a call for the other, it will immediately refer such call to the other
party. The parties shall review the logs three (3) months after the Effective
Date and semi-annually thereafter to determine if
NOTICE
Not for use or disclosure outside the Bell Atlantic Companies
except under written agreement.
4
<PAGE>
either party is receiving calls not relating to its areas of responsibilities.
If such is the case, the parties shall work together to resolve the problem.
I. Training of Bell Atlantic Personnel. EVC shall, within forty-five (45)
------------------------------------
days from the Effective Date and without charge to Bell Atlantic, provide sales,
technical and installation training sessions (similar to that provided to EVC's
own sales force) to Bell Atlantic marketing and technical personnel who shall
then train other Bell Atlantic personnel as necessary, including Bell Atlantic
sales personnel. These sessions shall be provided at selected Bell Atlantic
locations, on dates and in a manner mutually convenient to the parties, and
shall consist of, but not be limited to, an overview of the Service, its
applications, configuration criteria, system design, installation procedures and
the information needed to qualify prospective End Users to purchase the Service.
Follow-up sessions shall be provided from time to time at dates agreed to by the
parties. Bell Atlantic shall have the right to reproduce material and
documentation utilized in these sessions without limit, provided said material
and documentation is utilized internally only.
J. End User Training. EVC will offer to End Users under a separate contract,
-----------------
in a timely manner and at prevailing charges, End User training in sufficient
detail, beyond introductory training, to fully familiarize the End User with all
capabilities of the Service. At the End User's option, such training classes may
be held at End User's location or at an EVC designated location.
6. Compensation
A. Calculation of Referral Fees. EVC shall pay Bell Atlantic the compensation
----------------------------
set forth in Schedule 2 for all Sales, Add-On Sales and EVC Sales. Bell
Atlantic's right to compensation for Sales, Add-On Sales and EVC Sales made
prior to termination or expiration of this Agreement shall survive such
termination or expiration and shall remain payable until the expiration of the
End User Contract for each End User; provided, however, that EVC shall not
terminate prematurely or re-negotiate such contracts with the intent to deny
Bell Atlantic compensation.
B. Payment of Compensation and Reports. EVC shall provide to Bell Atlantic a
-----------------------------------
listing of all End User contracts by the fifteenth (15th) day of each month
following the end of each calendar quarter during the time period in which EVC
is obligated to pay Bell Atlantic compensation. This listing shall include the
status of Direct Sales, Referrals and EVC Sales made during the previous quarter
as well as the status of previous Direct Sales, Referrals and EVC Sales (e.g.,
opportunity, Referral pending, Referral rejected, Referral added, or
terminated), End-User name and address, acceptance date and contract price and
term. EVC shall pay Bell Atlantic compensation on the fifteenth (15th) day of
the month following the end of a calendar quarter based on the amount collected
from End Users in the preceding quarter. Payments shall be mailed by first-class
U.S. mail, postage prepaid, to an address specified from time to time in writing
by Bell Atlantic, or electronically transferred if agreed to by both parties.
EVC shall provide with such payment a statement (either as part of the report
referenced above or separately) itemizing the basis for the payment.
C. Late Payment. Failure by EVC to remit payments within the prescribed time
------------
limits may in Bell Atlantic's sole discretion result in a late charge equal to
the lower of one and one-half
NOTICE
Not for use or disclosure outside the Bell Atlantic Companies
except under written agreement.
5
<PAGE>
percent (1.5%) per month or the highest amount permitted by law for any fees not
paid within thirty (30) days of the applicable due date.
7. Indemnities
A. Intellectual Property. Except as specifically provided herein, no licenses
---------------------
to any patents, copyrights, trademarks, trade secrets or any other intellectual
property, express or implied, are granted to either party under this Agreement.
B. Service Related Liability. EVC shall indemnify and defend Bell Atlantic
---------------------------
and its Affiliates from any liabilities, lawsuits, penalties, claims or demands
(including the costs, expenses and reasonable attorney's fees on account
thereof) that may be made by any third party against Bell Atlantic or any
Affiliate relating to the Service, including, without limitation, defects,
breach of warranties, infringement of intellectual property rights, or loss of
data.
C. Other Liability. With respect to matters of liability not covered above,
----------------
Bell Atlantic and EVC each agree to indemnify and defend the other party from
any liabilities, lawsuits, penalties, claims or demands (including the costs,
expense and reasonable attorney's fees on account thereof) that may be made by
any third party arising from the other party's negligent or intentionally
wrongful acts or omissions or violations of law or those of persons furnished by
that party, its agents or subcontractors.
D. Defense and Settlement. A party seeking indemnification under this Section
----------------------
7 shall promptly notify the other in writing of the claim for which
indemnification is claimed, and shall give the other party sole control of the
defense and settlement of such claim. The indemnified party shall provide
reasonable cooperation in such defense and settlement.
8. Representations And Warranties
A. Authority. Each party warrants to the other that it is duly authorized to
---------
execute perform this Agreement according to its terms, and that such execution
and performance is not in violation of any laws, rules or regulations applicable
to that party. Each party further warrants that its performance of this
Agreement shall at all times be consistent, and shall not violate, any laws,
rules or regulations applicable to such party.
B. Provision of Service. EVC warrants that during the term the Service shall
--------------------
conform to the requirements set forth in Schedule 1. Without limiting the
foregoing, EVC shall use commercially reasonable efforts to ensure the Service
is of high quality and is competitively priced.
C. Disclaimer of Certain Warranties by Bell Atlantic. BELL ATLANTIC WILL
-----------------------------------------------------
PROVIDE DIRECT SALES AND REFERRALS ON AN AS IS BASIS, AND DISCLAIMS ALL
WARRANTIES IN CONNECTION WITH SUCH DIRECT SALES AND REFERRALS, WHETHER EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY,
FITNESS FOR PARTICULAR PURPOSE, ACCURACY, COMPLETENESS OR OTHERWISE. BELL
ATLANTIC DOES NOT AND WILL NOT OFFER ANY WARRANTY OF ANY KIND TO AN END USER OR
OTHER PERSON OR ENTITY FOR THE SERVICE. ANY WARRANTY OBLIGATION SET FORTH IN AN
END USER'S AGREEMENT WITH EVC WITH REGARD TO THE SERVICE SHALL BE UNDERTAKEN
NOTICE
Not for use or disclosure outside the Bell Atlantic Companies
except under written agreement.
6
<PAGE>
SOLELY BY EVC, AND EVC'S AGREEMENT WITH END USERS SHALL PROVIDE THAT THE
WARRANTIES COME ONLY FROM EVC. BELL ATLANTIC MAKES NO REPRESENTATIONS OR
WARRANTIES TO EVC'S END USERS WITH REGARD TO THE PERFORMANCE OF THE SERVICE OR
ITS CONFORMANCE WITH APPLICABLE SPECIFICATIONS OR DOCUMENTATION. ALL BELL
ATLANTIC WARRANTIES WHETHER WRITTEN, ORAL, EXPRESS, OR IMPLIED, INCLUDING,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS AS TO A PARTICULAR PURPOSE, ARE HEREBY EXCLUDED.
9. Limitation of Liability
Except for claims for which a party has indemnified the other and for payments
due or to become due: (i) neither party shall be liable to the other for any
consequential, indirect or special damages in any contract, tort or other action
relating to this Agreement; and (ii) a party's liability to the other in any
such action for damages not excluded under subsection (i) shall be capped at an
amount equal to two hundred thousand dollars ($200,000).
10. Notices
Any notice, report, or other communications under this Agreement shall be
sufficient if sent to a party by United States certified mail, return receipt
requested, postage prepaid, addressed as set forth below. Notices shall be
effective on receipt. The names and addresses set forth in this paragraph may be
changed at any time by notice sent in accordance with this paragraph.
To EVC:
Dr. John McGrath
President
Educational Video Conferencing, Inc.
35 Grassy Sprain Road
Yonkers, NY 10710
Except that all Direct Sale and Referral forms shall be sent to the EVC contact
identified thereon.
To Bell Atlantic:
Director, Market Management
Bell Atlantic Network Services, Inc.
1095 Avenue of the Americas
New York, NY 10036
With a copy to:
Counsel, Business Marketing
Bell Atlantic Network Services, Inc.
1320 North Court House Road
8th Floor
NOTICE
Not for use or disclosure outside the Bell Atlantic Companies
except under written agreement.
7
<PAGE>
Arlington, VA 22201
11. Other Terms
A. Choice of Law. The construction, interpretation, and performance of the
-------------
Agreement shall be governed by and construed in accordance with the domestic
laws of the state of New York.
B. Publicity. Neither party shall disclose this Agreement or its contents
---------
(except as required by law), or issue any press release, advertising, or other
promotional material which uses the other party's name or marks, including, but
not limited to either party's name or logo, to any third party without the prior
written consent of the other party. Before a party discloses the Agreement or
its contents under requirement of law, it shall provide notice to the other
party so that the other party may seek reasonable protective arrangements.
C. Severability. If any provision of this Agreement is held invalid or
------------
unenforceable by courts, regulatory agencies, or other governmental bodies of
competent jurisdiction, such holding shall not invalidate or render
unenforceable the entire Agreement. In the event of such holding, the entire
Agreement shall be construed to the extent possible as if not containing the
particular invalid or unenforceable provision, and the rights, remedies, and
obligations of the parties shall be construed and enforced accordingly.
D. Cumulative Rights. Except as otherwise set forth herein, the rights and
------------------
remedies of the parties set forth herein are in addition to, and not in
substitution of, any right or remedy available to the parties at law or in
equity.
E. Nonexclusive Market Rights. This Agreement does not grant either party an
---------------------------
exclusive privilege to market with the other or any Affiliate any or all of the
Services listed herein and shall not be deemed to prevent either party or any
Affiliate from marketing, promoting, selling, or endorsing services that are the
same or similar to the Service.
F. Most Favored Treatment. Notwithstanding any other provisions of this
------------------------
Agreement, the prices offered by EVC to End Users shall be comparable to those
offered by EVC, either directly or indirectly, to other customers of the Service
who are located in the Bell Atlantic Region.
G. Subcontracting. Any subcontract for any portion of any work or obligation
--------------
resulting from, or in conjunction with, this Agreement by EVC must have the
prior written approval of Bell Atlantic.
H. Records and Audit. EVC shall maintain complete and accurate records of all
-----------------
amounts due and of payments made to Bell Atlantic hereunder in accordance with
generally accepted accounting practices. EVC shall retain all such records for a
period of three (3) years from the date of expiration or termination of this
Agreement. Bell Atlantic shall have the right, through its representatives, and
at its own expense, to make an examination and audit during normal business
hours, of EVC's records and accounts as may, under recognized accounting
practices, contain information bearing upon the amount of fees payable under
this Agreement. Prompt adjustment shall be made by the proper party to
compensate for any errors or omissions disclosed by such examination or audit.
Neither such right to examine and audit,
NOTICE
Not for use or disclosure outside the Bell Atlantic Companies
except under written agreement.
8
<PAGE>
nor the right to receive such adjustment, shall be affected by any statement to
the contrary, appearing on checks or otherwise, unless such statement appears in
a letter, executed by the party having such right and addressed and delivered to
the other party, expressly waiving such right.
I. Force Majeure. Neither party shall be responsible for any delay or failure
-------------
in performance of any part of this Agreement to the extent that such delay or
failure is caused by fire, flood, lightning, explosion, war, strike, embargo,
government requirement, civil or military authority, act of God, acts or
omissions of carriers, or other similar causes beyond its control ("Condition").
If any such Condition occurs, the party delayed or unable to perform shall give
notice to the other party as soon as possible.
J. Compliance With Laws, Ordinances, Regulations And Codes. Both parties
-----------------------------------------------------------
shall comply with all applicable federal, state, county and local laws,
ordinances, regulations and codes, including identification and procurement of
required permits, certificates, approvals, and inspections in performance
hereunder
K. Special Recognition. Both parties expressly recognize that each party is
--------------------
both a seller and reseller of services and products and that nothing agreed to
herein is intended to limit, prohibit or restrict either party's merchandising
activities in any way except as specified herein. EVC recognizes that Bell
Atlantic is affiliated with communications common carriers licensed by the
Federal Communications Commission. This Agreement may be subject to such changes
or modifications as any such regulatory body may from time to time direct in the
exercise of its jurisdiction. In the event of a substantial change or deviation
from the state of facts or the degree of regulation from that existing at the
time of the execution of this Agreement which materially alters the obligations
of either party under this Agreement, the affected party shall have the option
to terminate any and all future obligations contemplated under this Agreement.
With respect to state and federal regulatory matters, affecting a party, that
party's determination shall be definitive and conclusive unless a competent
regulatory body issues a contrary determination based upon the facts at issue.
L. Assignment. Any assignment or delegation, in whole or in part, of work to
----------
be performed or of any other interest, right or obligation hereunder without
written consent, except an assignment confined solely to monies due or to become
due, and/or unless otherwise provided herein, shall be void. It is expressly
agreed that any assignment of monies shall be void to the extent that it
attempts to impose upon the party obligations to the assignee in addition to the
payment of such monies, or to preclude the appropriate party from dealing solely
and directly with the other party in all matters pertaining hereto, including
the negotiation of amendments or settlements of amounts due. Neither party may
assign this Agreement without the written consent of the other party.
Notwithstanding the foregoing, each party shall have the absolute right to
assign this Agreement, in whole or in part, to any Affiliate.
M. Independent Contractor Status. This Agreement shall not constitute the
-------------------------------
creation of a legal representative or agency relationship between the parties,
nor shall either party have the right or authority to assume, create, or incur
any liability or obligation of any kind, expressed or implied, against, or in
the name of, or in the behalf of the other party. Nothing contained in the
Agreement shall be deemed or construed as creating a joint venture or
partnership between the parties. Neither party shall have the power to control
the activities and operations of any other party and their status is, and at all
times shall continue to be, that of independent contractors. Each party shall
pay all wages, salaries and other amounts due its employees,
NOTICE
Not for use or disclosure outside the Bell Atlantic Companies
except under written agreement.
9
<PAGE>
and shall be responsible for all obligations respecting them relating to FICA,
income tax withholdings, unemployment compensation and other similar
responsibilities. In the event a party's independent status is denied or changed
and that party's employees are declared to be the other's employees with respect
to work performed for it, to the extent permitted by law, the employing party
agrees to pay the other all taxes and costs, including reasonable attorneys'
fees, as set forth above, which the other party may incur as a result of such
change in status. Moreover, solely for purposes of complying with the
Immigration Reform and Control Act of 1986 and its regulations (IRCA), each
party warrants and agrees to the other party that, to the best of its ability,
it shall (i) not assign any individual to perform work hereunder who is an
unauthorized alien under IRCA and (ii) immediately remove any such alien
discovered to be unauthorized from such work and replace him/her with one who is
not an unauthorized alien.
N. Publicity. Announcements regarding the series of transactions contemplated
---------
herein shall be made only with the prior written consent of the parties hereto,
which consent shall not be unreasonably withheld. The parties shall maintain the
confidentiality of this Agreement and its terms.
O. Confidentiality. A party may mark as "confidential" information it
---------------
discloses to the other in performing this Agreement that it desires to protect
against unrestricted disclosure or use. For a period of three (3) years from the
date of disclosure, or, in the case of information pertaining to a specific End
User Contract, until the termination of such Contract, the receiving party shall
not disclose information so marked to third parties, other than its consultants
or attorneys with a need to know. The obligations herein shall not apply to
information, whether designated as confidential: (i) which is made public by the
disclosing party or which generally becomes available to the public other than
through a disclosure by the receiving party or its officers, employees,
consultants or representatives; (ii) which is already in the possession of the
receiving party and not subject to an existing obligation of confidence between
the parties; (iii) which is received on a nonconfidential basis from a third
party having authority to disclose such information without restriction; (iv)
which is independently developed by the receiving party as evidenced by its
records; or (v) which is required to be disclosed by law.
P. Sale of EVC. If EVC decides to offer itself for sale, it will provide Bell
-----------
Atlantic with notice thereof and will give Bell Atlantic the exclusive
opportunity to negotiate to purchase EVC for a period of forty-five (45) days,
provided that Bell Atlantic responds to such notice within ten (10) days
thereafter indicating its intent to pursue such negotiations. If the parties are
not able to reach agreement during that time period, EVC may thereafter seek
other purchasers. This subsection (P) shall not obligate Bell Atlantic to
negotiate to purchase or to purchase EVC.
Q. Telecommunications Services Purchase. On EVC's request, Bell Atlantic will
------------------------------------
negotiate with EVC an appropriate and mutually acceptable agreement or
agreements for the sale by Bell Atlantic to EVC of intraLATA telecommunications
services at volume and/or term discounts similar to those offered by Bell
Atlantic to customers who are similarly situated to EVC.
R. Entire Agreement. This Agreement and the attached Schedules constitute the
----------------
entire agreement between the parties on the subject matter hereof, and,
supersede all prior and contemporaneous agreements, understandings, and
representations on the subject matter hereof. This Agreement and the Schedules
may not be modified or waived except by written agreement signed by both
parties.
NOTICE
Not for use or disclosure outside the Bell Atlantic Companies
except under written agreement.
10
<PAGE>
IN WITNESS WHEREOF, duly authorized representatives of each party have caused
this Agreement to be executed as of the day and year first above written
EDUCATIONAL VIDEO BELL ATLANTIC NETWORK
CONFERENCING, INC. SERVICES, INC.
/s/ Dr. John J. McGrath /s/ William Talbot
- ----------------------- --------------------------
(signature) (signature)
Dr. John J. McGrath William Talbot
- ----------------------- --------------------------
(printed name) (printed name)
President Director-Market Management
- ----------------------- --------------------------
(title) (title)
September 1, 1999 September 1, 1999
- ----------------------- --------------------------
(date) (date)
NOTICE
Not for use or disclosure outside the Bell Atlantic Companies
except under written agreement.
11
<PAGE>
Schedule 1
DESCRIPTION OF SERVICE
----------------------
The term "Service" includes any and all educational video conferencing services
as described in EVC's then-current catalogue or developed on a customized basis.
Generally, these services allow two-way interactive video conferencing that make
it possible for users at remote locations to see, hear, and interact "live and
in real time" with an instructor and other students taking the same course. The
participating students "attend class" at work, at community outreach centers, at
home, or at school, in conveniently located video-enabled rooms or via a desktop
or personal computer that has been specially equipped by EVC with an interactive
video conferencing system. EVC's offerings include undergraduate degree
programs, graduate programs, certificate programs, professional seminars,
training programs, language courses, and other programs, including SAT review
courses.
NOTICE
Not for use or disclosure outside the Bell Atlantic Companies
except under written agreement.
12
<PAGE>
Schedule 2
COMMISSION SCHEDULE
The fees due Bell Atlantic will be based on the aggregate quarterly revenue
collected by EVC for Sales, Add-On Sales and EVC Sales, less only deductions for
taxes and revenue attributable to any interLATA services ("Quarterly Revenue"),
as follows:
Quarterly Revenue Direct Sales* Referrals Add-On Sales EVC Sales**
- ----------------- ------------- --------- ------------ ------------
Less than $1.25 M [*]% [*]% [*]% [*]%
$1.25-1.8749 M [*]% [*]% [*]% [*]%
$1.875-2.49 M [*]% [*]% [*]% [*]%
Over 2.5 M [*]% [*]% [*]% [*]%
Notes:
- ------
* These amounts are payable only during the first year of each End User
Contract; for the remaining years of an End User Contract, the compensation will
be [*]%.
** No compensation or reports shall be provided for EVC Sales.
NOTICE
Not for use or disclosure outside the Bell Atlantic Companies
except under written agreement
[*] Confidential Portions
13
<PAGE>
Schedule 3
EXCLUDED CUSTOMERS
------------------
1199 Hospital Workers Union Home Depot
ABB IXC Communications
Aetna Insurance Lehman Brothers
Albert Einstein Hospital Lockheed Martin
Ameren Long Island University
American International Group Loral Space & Communications
AT&T Maimonides Hospital
Automated Data Processing Manhattan Eye & Ear Hospital
Bellagio Hotel & Resort Marsh & McLennan
Beth Israel/Roosevelt/St. Luke's Hospital Merrill Lynch
Blythdale Children's Hospital Methodist Hospital
BMG Entertainment MONY
Brinks Montefiore Hospital
Business Week Mt. Sinai Hospital
Caterpillar NASD/NASDAQ
Citibank, NA New Ame Zion Church
Columbia Presbyterian Hospital New York Methodist Hospital
Community Church of Nazarene New York City Community School
District #10
Consortium for Workers Education New York State Nursing Association
Dale Carnegie NYU Medical Center
DOCS Clinics Reliance National
Equitable Rochester City School District
Evangelical Crusade Sony Music Entertainment
First Church of God Time, Inc.
General Reinsurance Travelers
Hackensack Hospital Zurich
NOTICE
Not for use or disclosure outside the Bell Atlantic Companies
except under written agreement.
14
<PAGE>
Schedule 4
CPE
---
Any and all PictureTel, Zydacron, Intel, VTEL or FVC.COM (First Virtual) video
conferencing systems that support H.320, H.323, IP or ATM MPEG2 protocols at
bandwidths ranging from 384 Kbps to 45 Mbps.
NOTICE
Not for use or disclosure outside the Bell Atlantic Companies
except under written agreement.
15
Exhibit 10.41
AGREEMENT
BETWEEN EDUCATIONAL VIDEO CONFERENCING, INC.
AND
TOURO COLLEGE
FOR THE OFFERING OF
INTERACTIVE VIDEO CONFERENCED
AND
COMPUTER CONFERENCED COURSES
W I T N E S S E T H
AGREEMENT made this 1st day of September, 1999, between TOURO College and
Touro University College and TOURO University International (hereinafter TOURO),
with offices located at 1602 Avenue J, Brooklyn, New York 11230, and Educational
Video Conferencing Inc., (hereinafter "EVC"), with offices located at 35 East
Grassy Sprain Road, Suite 200, Yonkers, New York 10710.
WHEREAS, TOURO is an institution of higher learning duly certified by the
Education Department of the State of New York and accredited by the Middle
States Association of Colleges and Schools to offer undergraduate and graduate
courses, and,
WHEREAS, EVC is a domestic corporation engaged in the business of providing
access to such courses to consumers by way of interactive video conferencing and
computer conferencing, and,
WHEREAS, TOURO and EVC wish to enter into a mutually beneficial agreement
whereby EVC will provide access to TOURO courses to such consumers,
NOW, THEREFORE in consideration of $10.00 in good funds, as well as the
mutual covenants contained herein, the parties hereby agree as follows:
1. a.) During the term of this Agreement and any renewal thereof, EVC shall
have the right, to solicit students from corporations, governmental agencies and
institutions (hereinafter "Institutional Employers") and the public at large to
apply for admission into all accredited and non-accredited college courses,
degree programs, and non-degree courses and programs offered by TOURO, including
but not limited to the professional schools which are the Law School, School of
Health Sciences and College of Osteopathic Medicine via IVC/DL and CC/DL
commencing on September 4, 1999. TOURO will accept non-matriculated students
into undergraduate and graduate courses under this Agreement provided that the
acceptance of such students are not inconsistent with the relevant accrediting
agencies and governmental authorities. The right provided for herein is not an
exclusive right.
b.) For the purposes of this agreement, IVC/DL shall be defined as live,
two way video conferencing, either over desktop computers equipped for video
conferencing or video conferencing room systems, as the case may be, in which
the student can see and hear the professor/instructor and the
professor/instructor can see and hear the individual student. IVC/DL also shall
include one-way video and two-way audio distance learning.
c.) For the purpose of this Agreement, CC/DL shall be defined as Web-based
Computer Conferencing.
<PAGE>
d.) Unless TOURO and EVC agree otherwise in writing, the minimum class size
for the offering of an ITV/DL course shall be Fifteen (15) students.
2. EVC will provide all hardware (except personal computers, modems,
keyboards and monitors), software, and video conferencing equipment
(collectively referred to as "equipment") necessary to provide access for TOURO
courses to IVC/DL students. Students taking IVC/DL courses on desktop computers
must have modern computers capable of being video enabled and function as an
IVC/DL desktop system. Students taking CC/DL courses must have a modern
computer, a modem, and Internet access. The parties acknowledge that it is the
goal of EVC to solicit students from corporations, governmental agencies, and
institutions (hereinafter "Institutional Employers") with substantial tuition
reimbursement and that EVC shall address all student use equipment issues with
the Institutional Employers and their employees. In any event, TOURO shall not
be responsible for the cost of any equipment whatsoever at Institutional
Employer locations and/or students homes.
3. a.) EVC is responsible for all of the costs incurred in connection with
its marketing, advertising and promotional activities regarding the courses
offered by TOURO to IVC/DL students. TOURO shall provide brochures, catalogues,
course schedules, program and course descriptions and posters, etc. to EVC for
distribution to EVC's Institutional Employers. These promotional materials shall
be used by EVC only for the purpose of promoting the TOURO courses and programs
marketed, advertised and promoted by EVC. The number and amount of such
promotional materials to be provided to EVC shall be mutually agreed to by the
parties on an annual basis and the costs for such materials shall be TOURO's
responsibility. The content and design of such materials shall be decided upon
by TOURO.
b.) During the term of this Agreement and any renewal thereof, EVC's
marketing, with advertising and promotional activities shall at all times be in
compliance will all federal, state and local laws, statutes, rules and
regulations, as well as all accrediting agencies.
4. EVC will be responsible for installing and maintaining adequate
telephone lines for teaching stations and for the costs of providing
telecommunication signal transport for video conferenced courses from teacher
stations to the MCU Bridge. EVC assumes responsibility or costs for obtaining,
providing, or paying telecommunication signal transport for video conferenced
courses from the MCU Bridge to corporate locations and/or students' home.
5.a.) EVC will be responsible for installing and maintaining up to ten (10)
video conferencing teaching stations in the rooms provided by TOURO to video
conference IVC/DL courses offered through EVC, subject to enrollment. All video
conferencing teaching stations installed and paid for by EVC shall remain the
exclusive property of EVC. TOURO rooms for video conferencing teacher stations
do not have to be dedicated space.
b.) Subject to mutual agreement, EVC will provide TOURO the opportunity to
offer asynchronistic web-Based Computer Conferencing/Distance Learning (CC/DL)
to EVC clients. EVC assumes no responsibility or costs for obtaining, providing
or paying for teacher station equipment specifically for CC/DL courses.
6. All equipment supplied by EVC is the sole and exclusive property of EVC,
including but not limited to any and all patents, copyrights and trademarks, if
any, associated therewith. All classroom, course and program materials or other
information supplied by TOURO, and all rights and interests in said materials
will remain the sole and exclusive property of TOURO.
2
<PAGE>
7. a.) EVC is responsible for the necessary maintenance, repair and/or
replacement of video conferencing equipment supplied to TOURO for IVC/DL
courses.
b.) EVC will provide prompt service for repair or replacement of defective
interactive video conferencing equipment and software as necessary.
c.) TOURO will be responsible for the prompt repair and/or replacement of
interactive video conferencing equipment located at TOURO, which may be damaged
through improper or unauthorized use. TOURO instructors will operate the video
conferencing equipment.
d.) TOURO is responsible for the repayment to EVC of the cost of
replacement of any EVC equipment, which is lost or stolen while in TOURO's
custody and control. Both TOURO and EVC will have all appropriate insurances and
will name each other as additional insured under said policies.
8. Neither party shall utilize the other's name or any associated names,
trademarks, copyrights, etc., without prior written consent. Such permission
shall not be unreasonably denied. The use of such names should only be for the
purpose of effectuating the terms of this Agreement, and neither party shall
have the right to assign such right.
9. a.) EVC will provide faculty development to TOURO faculty reasonably
required for the offering of TOURO courses through EVC. Faculty development
specifically relates to the use of technology. TOURO retains sole discretion
with respect to faculty development in the teaching model and application of
technology to that model.
b.) TOURO shall be responsible for obtaining the services of all faculty
participating in courses offered through EVC, including but not limited to said
faculty's salary, benefits (if any) and verification of qualifications. EVC
assumes no responsibility for any costs associated therewith.
10. EVC is solely responsible to provide site locations for IVC/DL students
to participate in TOURO courses. TOURO assumes no responsibility for obtaining
or maintaining said sites, nor for any rent or other costs associated therewith.
11. EVC is not responsible for curriculum, course content, faculty
qualifications, course materials or any other aspect of the academic content of
any courses offered hereunder. However, TOURO agrees to consult EVC as to course
content, presentation and delivery of IVC/DL courses consistent with required
academic standards.
12. EVC agrees to make every reasonable effort to maintain its equipment in
good working order. However, EVC is not responsible for service or repair delays
or interruption of service caused by strikes, labor actions, power outages
(other than those limited to site locations alone), acts of God or other matters
beyond EVC's control.
13. TOURO hereby acknowledges that the IVC/DL and CC/DL programs marketed
by EVC are targeted toward the non-traditional working adult student market and
therefore agrees to use its best efforts to (a) offer IVC/DL courses at dates
and times appropriate to the target market. Specifically, between the hours of
8:00 a.m. to 11:00 p.m., Mondays, Tuesdays, Wednesdays, Thursdays, and Sundays;
on Fridays, from 8:00 a.m. to 2:00 p.m., and no classes will be scheduled on
Saturdays or Jewish religious holidays; and, (b) to offer the CC/DL courses
commencing at times reasonably requested by EVC's Institutional Employers and
their employees, subject to enrollment. TOURO will offer courses during the
fall, spring and summer semesters.
3
<PAGE>
14. a.) The parties hereby acknowledge that this Agreement is intended by
the parties to facilitate the offering of college courses, degree programs
and/or courses of study, which may lead to a degree or certificate.
b.) TOURO shall attempt to obtain and/or maintain all New York Department
of Education, Middle States Association, and any other accreditation necessary
to the offering of college courses and credits under the applicable law. Should
TOURO lose its accreditation at any time during the term of this Agreement or
any renewal hereof, EVC shall have the right to cancel this contract at the end
of the semester in progress, if applicable, or immediately if no semester is
underway.
c.) EVC shall be in compliance with all federal, state and local laws,
statutes, rules and regulations, as well as all accrediting agencies. Should EVC
be in violation of any provision of this Agreement or any renewal thereof,
including without limitation, the terms of this paragraph 14 (c), TOURO shall
have the right to terminate this Agreement at the end of the semester (if
applicable) or immediately, if no semester is underway. Provision should be made
upon termination for the return of TOURO's promotional material as well as EVC's
equipment.
15. Administrative Functions
a.) TOURO shall be responsible for all of its own administrative functions
(admissions, academic advising, registration, financial aid, etc.) associated
with the offering of IVC/DL and CC/DL courses through EVC.
16. Fees
a.) TOURO shall pay to EVC, on the 10th day of each month, [*]PERCENT [*]%
of the gross tuition actually collected by TOURO the preceding month,
from any source whatever, from or on behalf of any student attending
courses being offered by TOURO through EVC, said payments to commence
the month immediately following the collection of any such tuition by
TOURO. All checks for courses taken will be made out to TOURO College.
b.) TOURO shall pay to EVC [*]PERCENT [*]% of the gross tuition actually
collected by TOURO for corporations or organizations that have signed
a contract with EVC through TOURO's direct introduction.
c.) If TOURO agrees to go on site to recruit and enroll students, whether
the contract with EVC was initiated by EVC's or TOURO's direct
efforts, TOURO will pay EVC [*] PERCENT [*]% of the gross tuition
actually collected by TOURO the preceding month. In no event will EVC
receive less than [*] PERCENT [*]% of the gross tuition.
d.) EVC shall have the right, on a semi-annual basis, to examine the books
and records of TOURO, pertaining to all students taking courses
through EVC, in order to audit any accounts due and owing the
respective parties. TOURO shall have the right to audit EVC accounts
for students taking TOURO courses on the same basis.
e.) TOURO will provide EVC with a list of all students who come within the
ambit of this Agreement and shall allow the review of its records
which are not subject to federal and state restrictions.
[*] Confidential Portions
4
<PAGE>
f.) Within THIRTY (30) DAYS of the completion of each fall and spring
Semester, TOURO shall present to EVC, in writing, any requests for adjustments
or credits on monies already paid to EVC, which credits or adjustments have been
made necessary by an EVC student having dropped a course, bounced a check, etc.
EVC will credit any such valid adjustment to TOURO's account in three (3) equal
installments over the three(3) months immediately following such request by
TOURO.
g.) Students registering for TOURO courses through EVC who are employed by
an Institutional Employer customer of EVC which has a tuition reimbursement
policy for its employees shall be eligible for tuition deferment from TOURO
until completion of the course, thereby enabling said students to register for
TOURO courses through EVC without payment of tuition or fees up front. Said
students shall be required to sign a tuition payment guarantee providing that
they are fully responsible for 100% of all tuition in the event that, for any
reason, they are not reimbursed by their employer.
h.) Students registering for TOURO courses offered through EVC who are not
employed by an Institutional Employer customer of EVC providing tuition
reimbursement to their employees shall be required to pay tuition and fees up
front when registering.
17. TOURO will provide up to ten (10) rooms which will accommodate teaching
stations in order to facilitate IVC/DL courses marketed by EVC emanating from
its campus and will grant EVC, its agents and subcontractors, reasonable access
to said facilities as is required for proper installation, operation,
maintenance and repair of all equipment contemplated herein, including but not
limited to IVC/DL equipment and telephone lines. Said rooms shall be a minimum
of 10 feet by 12 feet with adequate electrical, air conditioning, lighting,
etc., and be otherwise suitable for use as video conferencing teacher stations.
Said rooms will be provided one at a time subject to registration demand.
18. TOURO's Public Relations Department will provide reasonable cooperation
with EVC in promoting EVC/TOURO Telecommute to College Programs and the IVC/DL
and CC/DL course offerings offered through EVC.
19. TOURO and EVC will, whenever possible, cooperate in applying for and
obtaining, any grants, awards, stipends, fellowships, etc., which are mutually
beneficial to the parties. TOURO reserves the right to decline seeking any
specific grant if it conflicts with TOURO's programs or objectives.
20. TOURO shall maintain academic control over all courses and will be
receptive to EVC input as to IVC/DL and CC/DL presentation. TOURO shall consult
with EVC regarding the presentation of TOURO's courses over IVC/DL and CC/DL.
21. TOURO will assign at least one person who at all times will act as
liaison between TOURO and EVC.
22. Term of Agreement
a.) The basic term of this Agreement shall be FIVE (5) YEARS.
b.) The parties hereby acknowledge the necessity for allowing IVC/DL
students continuity and ongoing access to courses and programs, so long as there
is adequate registration.
c.) In light of the foregoing, the parties agree that commencing June 30,
2000 and every June 30th thereafter, this Agreement shall automatically be
extended for an additional period of ONE (1) YEAR, subject to the conditions
hereinafter contained.
5
<PAGE>
d.) In the event that either party should desire not to automatically
extend this agreement, then, and in that event, such party shall so notify the
other in writing, by Certified Mail, Return Receipt Requested, no later than
June 30th of any given year, after which the agreement will not be extended for
an additional ONE (1) YEAR, but will have only the Four (4) YEARS of the
existing term remaining.
23. TOURO shall have the right to offer courses via IVC/DL and CC/DL on its
own to Institutional Employer and/or the employees of any Institutional Employer
not under contract with EVC. In such event, EVC shall not have any obligation to
market, provide any services or equipment, permit the use of EVC's equipment, or
incur any costs in connection with such offerings.
24. a.) TOURO agrees that, for the duration of this Agreement and any
extensions hereof, as well as for a period of ONE (1) YEAR immediately
following any termination or expiration thereof, TOURO will not independently
contract with corporations or organizations under contract with EVC and served
by TOURO.
b.) TOURO retains the right to do mass advertising and marketing for its
own distance learning programs, and it is understood by EVC that some of the
employees of corporations or organizations under contract with EVC may
separately respond to these solicitations and attend TOURO College's independent
distance learning programs or on-campus programs.
25. Damages Limitations
a.) It is expressly agreed and understood that neither party shall be
liable for incidental, special or consequential damages for any breach or
violation of this Agreement. To the extent that this clause seeks to limit EVC's
liability for the return of tuition or other damages incurred by TOURO by reason
of TOURO's inability to perform arising out of EVC's breach, the limitation on
damages does not apply.
b.) The performance of this Agreement by TOURO is subject to TOURO
obtaining all requisite approvals and consents from all appropriate accrediting
agencies, including, without limitation, the New York State Department of
Education and the California Department of Education.
26. The foregoing constitutes the entire agreement between the parties, and
any other agreements or representations, whether verbal or written, if not
contained herein, are void, of no effect, and are not binding upon the parties.
27. No valid modification, amendment, or deletion may be made to this
agreement except in writing and executed by the parties in substantially the
same manner as this Agreement.
28. Any and all notices required hereunder shall be by Certified Mail,
Return Receipt Requested, to each party's last known address and shall be deemed
given at the time of mailing.
29. If any portion of this agreement shall be found to be void, voidable or
unenforceable, it shall not effect the validity of the remainder of the
agreement.
30. This Agreement shall be binding on the respective parties' heirs,
successors, and assigns.
6
<PAGE>
31. The parties agree that any disputes or disagreements arising hereunder
or in connection herewith, shall be settled by binding arbitration before the
American Arbitration Association at their offices located in White Plains, New
York, and that any judgment awarded thereunder may be entered in any court of
appropriate jurisdiction, and will have full force and effect therein.
32. This Agreement shall be construed in accordance with, and governed by,
the laws of the State of New York.
IN WITNESS WHEREOF the parties have hereunto set their hands and seal the
date first appearing above.
TOURO COLLEGE
By: /s/ Arthur Kruger
-------------------------------
Arthur Kruger
Vice-President
EDUCATIONAL VIDEO CONFERENCING, INC.
By: /s/ Dr. John J. McGrath
--------------------------------
Dr. John J. McGrath
President
7
Exhibit 10.42
AGREEMENT BETWEEN
EDUCATIONAL VIDEO CONFERENCING, INC.
AND ST. JOHN'S UNIVERSITY
FOR THE OFFERING OF INTERACTIVE VIDEO CONFERENCED
AND INTERNET-BASED COURSES
W I T N E S S E T H
---------------------
AGREEMENT made this 24th day of September, 1999, between St. John's
University with offices located at 8000 Utopia Parkway, Jamaica, NY 11439
(hereinafter referred to as "SJU"), and Educational Video Conferencing Inc.,
(hereinafter "EVC"), with offices located at 35 East Grassy Sprain Road,
Yonkers, New York 10710.
WHEREAS, SJU is an institution of higher learning duly certified by
the Education Department of the State of New York and accredited by the Middle
States Association of Colleges and Schools to offer undergraduate and graduate
courses, and,
WHEREAS, EVC is a domestic corporation engaged in the business of
providing access to such courses to consumers by way of interactive video
conferencing and computer conferencing, and,
WHEREAS, SJU and EVC wish to enter into a mutually beneficial
agreement whereby EVC will provide access to SJU courses to such consumers,
NOW, THEREFORE in consideration of $10.00 in good funds, as well as
the mutual covenants contained herein, the parties hereby agree as follows:
1. a.) On a non-exlusive basis, EVC shall have the right, for the
duration of this agreement and any renewal hereof, to offer undergraduate and
graduate business courses and degree programs, for credit and non-credit,
offered by SJU through the College of Business Administration, via Interactive
Video Conferencing/Distance Learning (hereinafter "IVC/DL") and Internet-based
courses, commencing October 15,1999. The parties acknowledge that other courses
and degree programs may be added to this agreement as the parties agree uponfrom
time to time, on the terms agreed to herein.
b.) For the purposes of this agreement, IVC/DL shall be defined as
live, two way video conferencing, either over desktop computers equipped for
video conferencing or video conferencing room systems, as the case may be, in
which the student can see and hear the professor/instructor and the
professor/instructor can see and hear the individual student. IVC/DL also shall
include one-way video and two-way audio distance learning.
c.) Unless SJU and EVC agree otherwise in writing, the minimum class
size for the offering of an ITV/DL course shall be twelve (12) students.
2. EVC will provide all hardware (except personal computers, modems,
keyboards and monitors), software, and video conferencing equipment
(collectively referred to as "equipment") necessary to provide access for SJU
courses to IVC/DL students. Students taking IVC/DL courses on desktop computers
must have modern computers capable of being video enabled and function as an
IVC/DL desktop system. SJU shall not be responsible for the cost of any
equipment whatsoever at Institutional Employer Employer locations and/or
students homes.
<PAGE>
3. EVC is responsible for costs for marketing, advertising, and promotion
regarding EVC's offering of access to SJU'S courses. Unless otherwise agreed,
SJU will provide brochures, catalogues, course schedules, program and course
descriptions, posters, etc., to EVC for distribution to employees of EVC's
corporate, governmental and institutional clients promoting the SJU's programs
and courses offered through EVC.
4. SJU shall provide rooms capable of becoming teacher stations. This
includes installing and maintaining adequate telecommunications lines (ISDN, DSL
or cable and regular telephone lines) and electrical outlets. SJU will be
responsible for the cost of the telecommunication signal transport for video
conferenced courses from teacher stations to the MCU Bridge. EVC assumes
responsibility or cost for obtaining, providing, or paying for telecommunication
signal transport for video conferenced courses from the MCU Bridge to corporate
locations and/or students homes.
5. EVC will be responsible for installing and maintaining up to ten (10)
teaching stations in the rooms provided by SJU to video conference IVC/DL
courses offered through EVC, subject to enrollment. All teaching stations
installed and paid for by EVC shall remain the exclusive property of EVC.
a.) EVC will be responsible to equip an SJU on-campus classroom with a
student IVC/DL system which classroom may be used to enroll SJU students in
order to attend EVC-SJU IVC/DL classes. EVC will be responsible fore all
telecommunications costs associated with on-campus EVC-SJU IVC/DL classes. EVC
will have the right ro remove the EVC IVC/DL system is on-campus classroom
enrollment in EVC-SJU IVC/DL classes in said video-enabled classroom(s) is less
than twnety (20) scheulded course regitstrations (SJRs) per academic semester.
6. All equipment supplied by EVC is the sole and exclusive property of EVC,
including but not limited to any and all patents, copyrights and trademarks, if
any, associated therewith. All classroom, course and program materials or other
information supplied by SJU, and all rights and interests in said materials will
remain the sole and exclusive property of SJU.
7. a.) EVC is responsible for the necessary maintenance, repair and/or
replacement of video conferencing equipment supplied to SJU for IVC/DL courses.
b.) EVC will provide reasonably prompt service for repair or
replacement of defective interactive video conferencing equipment and software
as necessary.
c.) SJU will be responsible for the prompt repair and/or replacement
of interactive video conferencing equipment located at SJU, which may be damaged
through improper or unauthorized use.
d.) SJU is responsible for the repayment to EVC of the cost of
replacement of any EVC equipment, which is lost or stolen while in SJU custody
and control.
8. Neither party shall utilize the other's name or any associated names,
trademarks, copyrights, etc., without prior written consent, except with regard
to EVC's marketing, advertising and promotion of SJU courses. Such permission
shall not be unreasonably denied.
9. a.) EVC will provide faculty development to SJU faculty reasonably
required for the offering of SJU courses through EVC.
b.) SJU shall be responsible for obtaining the services of all faculty
participating in courses offered through EVC, including but not limited to, said
faculty's salary, benefits (if any) and verification of qualifications. EVC
assumes no responsibility for any costs associated therewith.
2
<PAGE>
10. EVC is solely responsible to provide site locations for IVC/DL students
to participate in SJU courses. SJU assumes no responsibility for obtaining or
maintaining said sites, nor for any rent or other costs associated therewith.
11. EVC is not responsible for curriculum, course content, faculty
qualifications, course materials or any other aspect of the academic content of
any courses offered hereunder. However, SJU agrees to be receptive to, and
consider, EVC input as to course content presentation and delivery of IVC/DL
courses consistent with required academic standards.
12. EVC agrees to make every reasonable effort to maintain its equipment in
good working order. However, EVC is not responsible for service or repair delays
or interruption of service caused by strikes, labor actions, power outages
(other than those limited to site locations alone), acts of God or other matters
beyond EVC's control.
13. SJU hereby acknowledges that the IVC/DL programs marketed by EVC are
targeted toward the non-traditional working adult student market and therefore
agrees to offer IVC/DL courses at dates and times appropriate to the target
market, including the hours of 8:00 a.m. to 11:00 p.m., Eastern Standard Time,
seven days per week, and at such other times requested by EVC's Institutional
Employers and their employees, subject to enrollment. And, including but not
limited to, the three academic semesters offered each year by SJU, i.e., Fall,
Spring and Summer.
14. a.) The parties hereby acknowledge that this agreement is intended by
the parties to facilitate the offering of college courses, degree programs
and/or courses of study.
b.) SJU shall attempt to obtain and/or maintain all New York
Department of Education, Middle States Association and any other accreditation
necessary to the offering of college courses and credits under the applicable
law. Should SJU lose its accreditation at any time during the term of this
agreement or any renewal hereof, EVC shall have the right to cancel this
contract at the end of the semester in progress, if applicable, or immediately
if no semester is underway.
15. Administrative Functions
a.) SJU shall be responsible for all of its own administrative
functions (admissions, academic advising, registration, financial aid, etc.)
associated with the offering of IVC/DL courses through EVC.
b.) SJU will provide to EVC all necessary administrative forms,
applications, written instructions, catalogues, etc. in advance of marketing
courses to any organization. It is understood by the parties that EVC is merely
a conduit and assumes no liability whatever for the accuracy or correctness of
the information in said forms provided by SJU nor for return of any of the
aforesaid documents to SJU.
16. Fees: The fees set forth in Section 16, subdivisions a through d, are
mutually exclusive of each other
a.) SJU shall pay to EVC, on the 15th day of each month, [*]% PERCENT
([*]% for over FIve Hundred [500] students who contract through EVC for degree
programs), of the gross tuition actually collected by SJU the preceding month
from, or on behalf of, any student registered for and attending college courses
being offered by SJU through EVC, said payments to commence the month
immediately following the collection of any such tuition by SJU. All checks for
courses taken will be made out to SJU.
[*] Confidential Portions
3
<PAGE>
b.) SJU shall pay to EVC, on the 15th day of each month, [*]% PERCENT
of the gross tuition acutally collected by SJU the preceding month from, or on
bahalf of, any student registered for, and attending college courses being
offered by SJU through EVC who are employees of corporations that contract with
EVC through the direct efforts of SJU, said payments to commence the month
immediately following the collection of any such by SJU. SJU corporate customers
shall be defined as corporations who have executed an agreement with EVC through
the direct efforts of SJU. All checks for courses taken will be made out to SJU.
c.) SJU shall pay to EVC, on the 15th of each month, [*]% PERCENT of
the gross tuition actually collected by SJU the preceding month, from, or on
behalf of, any student registered for, and attending college courses being
offered by SJU through EVC's programs, who have been registered in accredited
college courses at SJU within the past two years, said payments to commence the
month immediately following the collection of any such tuition by SJU. All
checks for courses taken will be made out to SJU.
d.) SJU shall pay to EVC, on the 15th day of each month, [*]% PERCENT
of the gross tuition actually collected by SJU the preceding month, from, or on
behalf of, any student attending IVC/DL classes on the SJU campus(es), in SJU
classroom(s) video-enabled by EVC, said payments to commence the month
immediately following the collection of any such tuition by SJU. All checks for
courses taken will be made out to SJU.
e.) EVC shall have the right, on a semi-annual basis, to examine the
books and records of SJU, pertaining to all students taking courses through EVC,
in order to audit any accounts due and owing the respective parties. ST. JOHN'S
shall have the right to audit EVC accounts for students taking SJU courses on
the same basis.
f.) EVC shall require each student registering for a course offered
through EVC to sign a waiver and release form granting EVC access to said
student's records, including each student's name, address, telephone number,
social security number, registration, finanical aid loans and payment status.
Said waiver and release form to be provided to SJU by EVC, the format of which
shall be subject to SJU approval, which approval shall not be unreasonably
withheld.
g.) Upon receipt of the waiver referred to in subdivision f, and
commencing on November 15, 1999, and continuing on the 15th of every month
thereafter, SJU will supply EVC with a list of all students who have registered
at SJU for courses through EVC, containing the student information set forth in
subdivision f. EVC shall provide to SJU, updated information relating to SJU
students each month.
h.) On the First (1st) day of each month, commencing with the month
SJU begins payments to EVC, SJU shall present to EVC, in writing, any requests
for adjustments or credits on monies already paid to EVC, which credits or
adjustments have been made necessary by an EVC student having dropped a course,
bounced a check, etc. EVC will credit any such valid adjustment ot SJU's account
within THIRTY (30) days of receipt.
i.) Students registering for SJU courses through EVC who are employed
by an Institutional Employer customer of EVC which have a tuition reimbursement
policy for their employees shall be eligible for tuition deferment from SJU
until completion of the course, thereby enabling said students to register for
SJU courses through EVC without payment of tuition or fees up front. Said
students shall be required to sign a tuition payment guarantee providing that
they are fully responsible for 100% of all tuition in the event that, for any
reason, they are not reimbursed by their employer. EVC agrees that SJU will make
the required payments on such deferred tuition payments by the 10th of the month
following receipt of said deferred tuition payments.
[*] Confidential Portions
4
<PAGE>
j.) Students registering for SJU courses offered through EVC who are
not employed by an Institutional Employer customer of EVC providing tuition
reimbursement to their employees shall be required to pay tuition and fees up
front when registering. SJU will pay to EVC the rate indicated in the
appropriate subdivision of paragraph 16 of such students.
17. SJU will provide which will accommodate teaching stations in order to
facilitate IVC/DL courses marketed by EVC emanating from its campus and will
grant EVC, its agents and subcontractors, reasonable access to said facilities
as is required for proper installation, operation, maintenance and repair of all
equipment contemplated herein, including but not limited to IVC/DL equipment.
Said room shall be a minimum of 10 feet by 16 feet with adequate electrical, air
conditioning, lighting, etc., and be otherwise suitable for use as a video
conferencing teacher station. Said rooms will be provided one at a time subject
to registration demand.
a.) Rooms at SJU equipped by EVC for IVC/DL may not be used by the
college for any meeting, class, function or other purpose which does not
interfere with EVC program schedules and which are not revenue producing
activities, without the prior written permission of EVC.
18. SJU's Public Relations Department will provide reasonable cooperation
with EVC in promoting EVC/SJU Telecommute to College Program and the IVC/DL
courses offered through EVC.
19. SJU and EVC will, whenever possible, cooperate in applying for and
obtaining, any grants, awards, stipends, fellowships, etc., which are mutually
beneficial to the parties.
20. SJU shall maintain academic control over all courses and will be
receptive to EVC input as to IVC/DL presentation.
21. SJU will assign at least one person who at all times will act as
liaison between SJU and EVC.
22. Term of Agreement
a.) The basic term of this agreement shall be FIVE (5) YEARS.
b.) The parties hereby acknowledge the necessity for allowing IVC/DL
students continuity and ongoing access to courses and programs, so long as there
is adequate registration.
c.) In light of the foregoing, the parties agree that commencing
October 15, 2000 and every October 15th thereafter, this agreement shall
automatically be extended for an additional period of ONE (1) YEAR, subject to
the conditions hereinafter contained.
d.) In the event that either party should desire not to automatically
extend this agreement, then and in that event, such party shall so notify the
other in writing, by Certified Mail, Return Receipt Requested, no later than
August 1 of any given year, after which the agreement will not be extended for
an additional ONE (1) YEAR, but will have only the Four (4) YEARS of the
existing term remaining.
23. SJU shall have the right to offer courses via IVC/DL on its own to
Institutional Employer and/or the employees of any Institutional Employer not
under contract with EVC. In such event, EVC shall not have any obligation to
market, provide any services or equipment, permit the use of EVC's equipment, or
incur any costs in connection with such offerings.
5
<PAGE>
24. SJU agrees that, for the duration of this agreement and any extensions
hereof, as well as for a period of ONE (1) YEAR immediately following any
termination or expiration thereof, SJU will not independently video conference
or computer conference its college courses or programs under this contract to
EVC students, clients or their employees.
25. The parties agree that disclosure of the terms of this agreement to
others will cause EVC irreparable damage to its business. The parties agree,
therefore, that SJU shall not disclose the terms of this agreement with the
prior written permission of EVC.
26. It is expressly agreed and understood that neither party shall be
liable for incidental, special or consequential damages for any breach or
violation of this agreement.
27. The foregoing constitutes the entire agreement between the parties, and
any other agreements or representations, whether verbal or written, if not
contained herein, are void, of no effect, and are not binding upon the parties.
28. No valid modification, amendment, or deletion may be made to this
agreement except in writing and executed by the parties in substantially the
same manner as this agreement.
29. Any and all notices required hereunder shall be by Certified Mail,
Return Receipt Requested, to each party's last known address and shall be deemed
given at the time of mailing.
30. If any portion of this agreement shall be found to be void, voidable or
unenforceable, it shall not effect the validity of the remainder of the
agreement.
31. This agreement shall be binding on the respective parties' heirs,
successors, and assigns.
32. The parties agree that any disputes or disagreements arising hereunder
or in connection herewith shall be settled by binding arbitration before the
American Arbitration Association at their offices located in New York, New York,
and that any judgment awarded thereunder may be entered in any court of
appropriate jurisdiction, and will have full force and effect therein.
33. This agreement shall be construed in accordance with, and governed by,
the laws of the State of New York.
In witness whereof the parties have hereunto set their hands and seal the
date first appearing above.
ST. JOHN'S UNIVERSITY
By: /s/ Dorothy E. Habben, Ph.D
-------------------------------------
Dorothy Habben, Interim Provost
EDUCATIONAL VIDEO CONFERENCING, INC.
By: /s/ John J. McGrath, Ph.D
------------------------------------
Dr. John J. McGrath, President
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
STATEMENT OF OPERATIONS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1999 AND THE
BALANCE SHEET FOR THE PERIOD THEN ENDED, AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANICAL STATEMENTS
</LEGEND>
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 9,919,704
<SECURITIES> 0
<RECEIVABLES> 375,371
<ALLOWANCES> (60,000)
<INVENTORY> 0
<CURRENT-ASSETS> 10,487,075
<PP&E> 3,058,628
<DEPRECIATION> (289,510)
<TOTAL-ASSETS> 13,328,696
<CURRENT-LIABILITIES> 798,875
<BONDS> 0
0
0
<COMMON> 435
<OTHER-SE> 12,475,234
<TOTAL-LIABILITY-AND-EQUITY> 13,328,696
<SALES> 477,425
<TOTAL-REVENUES> 807,823
<CGS> 176,537
<TOTAL-COSTS> 4,345,720
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,570
<INCOME-PRETAX> (3,537,897)
<INCOME-TAX> 0
<INCOME-CONTINUING> (3,537,897)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (3,537,897)
<EPS-BASIC> (0.87)
<EPS-DILUTED> (0.87)
</TABLE>
