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Exhibit 10.55
STATE OF NEW YORK
NEW YORK STATE DEPARTMENT OF LABOR
AMENDMENT NO. 5 TO
COMPTROLLER'S CONTRACT NO. C000857
WITH CLEARBLUE TECHNOLOGIES MANAGEMENT, INC.
THIS AGREEMENT is made this 25TH DAY OF MARCH, 2003 by and between
the
People of the State of New York, acting by
and through Linda Angello, the
Commissioner of Labor, whose office is at
the 5th Floor of Building 12. Governor
W. Averell Harriman State Office Building
Campus, Albany, New York 12240
(hereinafter referred to as "Labor" or
"State") and ClearBlue Technologies
Management, Inc., a corporation authorized
to do business in the State of New
York, with an office at 224 Harrison
Street, Syracuse, N.Y. 13202 (hereinafter
referred to as "ClearBlue" or
"Contractor").
W I T N E S S E T H:
WHEREAS, the parties entered into Comptroller's Contract No.
C000857
(hereinafter "Contract") approved by the
State Comptroller on November 30, 2000,
for the provision of Software development
and maintenance, Web Hosting and Help
Desk services (hereinafter "Software
Services"); and
WHEREAS, the Contract provided for expenditures of up to Eighty
Two
Million Dollars ($82,000,000.00) during the
5 year term of the Agreement
(hereinafter "Contract Total"), subject to
the periodic extension of funding
from the United States Department of Labor;
and
WHEREAS, the Contract made available Nineteen Million Dollars
($19,000,000.00) for expenditure through
June 14, 2001 (hereinafter "Contract
Funding"); and
WHEREAS, Amendment No. 1 increased the Contract Funding $4,833,407
to
provide additional Software Services;
and
WHEREAS, Amendment No. 2 increased the Contract Funding $25,540,000
to
provide additional Software Services;
and
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WHEREAS, Amendment No. 3 increased the Contract Funding $4,384,994
to
provide additional Software Services,
increased the hourly billable rates in
accordance with the Consumer Price Index
for Syracuse, and assigned the Contract
from Applied Theory Corporation, Inc. to
ClearBlue Technologies Management,
Inc., and
WHEREAS, Amendment No. 4 increased the Contract Funding $18,952,142
to
provide additional Software Services;
and
WHEREAS, the Department desires to amend the Contract Total and
the
Contract Funding to allow for the
Contractor to provide additional Services to
the Rhode Island Department of Labor and
Training;
WHEREAS, the parties are ready, willing and able to enter into such
an
amendment (hereinafter "Contract Amendment
No. 5").
NOW THEREFORE, in consideration of the mutual undertakings and
covenants herein contained the parties
agree as follows:
1. The
Contract scope is hereby amended to permit the Department
to provide Software Services on behalf of the Rhode Island
Department of Labor and Training in accordance with the
Memorandum of Agreement attached hereto. The Memorandum of
Agreement describes Software Services to be provided, along
with associated costs, and becomes part of this Contract.
2. The
Contract Total is increased by $1,006,278.00 from
$82,000,000.00 to $83,006,278.00. The Contract Funding is
increased by $1,006,278.00 from $72,710,543 to $73,716,821 for
Software Services in accordance with the attached Memorandum
of Agreement with the Rhode Island Department of Labor and
Training. The additional $1,006,278.00 will fund such services
through June 14, 2005.
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3. This
Agreement shall be deemed executory only to the extent of
funding available to the State for the performance of the
terms hereof and no liability on account thereof shall be
incurred by the State of New York beyond monies available for
purpose thereof.
4. This
Agreement shall be governed by the laws of the State of
New York.
5.
Appendix A. standard clauses for New York State contracts,
attached hereto, is hereby expressly made a part of this
Agreement as fully as if set forth at length herein.
6. In
all respects not inconsistent with this Contract Amendment
No. 5, the terms of the Contract as originally entered into
shall remain in full force and effect and binding upon the
parties hereto.
7. This
Contract Amendment No. 5, the Contract and any prior
amendments, constitute the entire Agreement between the
parties hereto and no statement, promise, condition,
understanding, inducement or representation, oral or written,
expressed or implied, which is not contained herein shall be
binding or valid and this Agreement shall not he changed,
modified or altered in any manner except by an instrument in
writing executed by both parties hereto.
8. This
Contract Amendment No. 5 shall not be deemed executed,
valid or binding unless and until approved in writing by the
Attorney General and the State Comptroller.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as
of the date first above written.
CONTRACT NUMBER C000857
Agency Certification
"In addition to the acceptance of
this contract, I also certify
that original copies of this
signature page will be attached
to all other exact copies of this
contract."
CLEARBLUE TECHNOLOGIES
THE PEOPLE OF THE STATE
MANAGEMENT, INC.
NEW YORK
BY: /s/ Benjamin P. Hawley
BY: /s/ Paul D. Danaher
----------------------------
----------------------------
NAME: Benjamin P. Hawley
NAME: Paul D. Danaher
TITLE: General Manager
TITLE: Principal Accountant (ES)
FEDERAL I.D. NO.:75-3051663
04/02/03
APPROVED AS TO FORM
APPROVED
ELIOT SPITZER
ALAN G. HEVESI
ATTORNEY GENERAL
STATE COMPTROLLER
April _______ , 2003
April 29, 2003
CORPORATE ACKNOWLEDGEMENT
STATE OF NEW YORK
}
} SS:
COUNTY OF Onondaga
}
On the________day of March in the year 2002 before me personally
came
Benjamin P. Hawley to me known, who, being
by me duly sworn did depose and say
the he resides in NY; that he is the
General Manager of the ClearBlue
Technologies Management, Inc., the
corporation described in and which executed
the above instrument; and that he signed
his/her name thereto by authority of
the Board of Directors of said
corporation.
/s/ Patricia J. Foster
-----------------------------
Notary Public
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APPENDIX A
STANDARD CLAUSES FOR ALL
NEW YORK STATE CONTRACTS
The parties to the attached contract, license, lease, amendment
or
other agreement of any kind (hereinafter,
"the contract" or "this contract")
agree to be bound by the following clauses
which are hereby made a part of the
contract (the word "Contractor" herein
refers to any party other than the State,
whether a contractor, licenser, licensee,
lessor, lessee or any other party):
1. EXECUTORY CLAUSE. In accordance with
Section 41 of the State Finance Law, the
State shall have no liability under this
contract to the Contractor or to anyone
else beyond funds appropriated and
available for this contract.
2. NON-ASSIGNMENT CLAUSE. In accordance
with Section 138 of the State Finance
Law, this contract may not be assigned by
the Contractor or its right, title or
interest therein assigned, transferred
conveyed, sublet or otherwise disposed of
without the previous consent, in writing,
of the State and any attempts to
assign the contract without the State's
written consent are null and void. The
Contractor may, however, assign its right
to receive payment without the State's
prior written consent unless this contract
concerns Certificates of
Participation pursuant to Article 5-A of
the State Finance law.
3. COMPTROLLER'S APPROVAL. In accordance
with Section 112 of the State Finance
Law (or, if this contract is with the State
University or City University of New
York, Section 355 or Section 6218 of the
Education Law), if this contract
exceeds $15,000 (or the minimum thresholds
agreed to by the Office of the State
Comptroller for certain S.U.N.Y. and
C.U.N.Y. contracts), or if this is an
amendment for any amount to a contract
which, as so amended, exceeds said
statutory amount, or if, by this contract,
the State agrees to give something
other than money when the value or
reasonably estimated value of such
consideration exceeds $10,000, it shall not
be valid, effective or binding upon
the State until it has been approved by the
State Comptroller and filed in his
office.
4. WORKERS' COMPENSATION BENEFITS. In
accordance with Section 142 of the State
Finance Law, this contract shall be void
and of no force and effect unless the
Contractor shall provide and maintain
coverage during the life of this contract
for the benefit of such employees as are
required to be covered by the
provisions of the Workers' Compensation
Law.
5. NON-DISCRIMINATION REQUIREMENTS. In
accordance with Article 15 of the
Executive Law (also known as the Human
Rights Law) and all other State and
Federal statutory and constitutional
non-discrimination provisions, the
Contractor will not discriminate against
any employee or applicant for
employment because of race, creed, color,
sex, national origin, age, disability
or marital status. Furthermore, in
accordance with Section 22O-e of the Labor
Law, if this is a contract for the
construction, alteration or repair of any
public building or public work or for the
manufacture, sale or distribution of
materials, equipment or supplies, and to
the extent that this contract shall be
performed within the State of New York,
Contractor agrees that neither it nor
its subcontractors shall, by reason of
race, creed, color, disability, sex, or
national origin: (a) discriminate in hiring
against any New York State citizen
who is qualified and available to perform
the work: or (b) discriminate against
or intimidate any employee hired for the
performance of work under this
contract. If this is a building service
contract as defined in Section 230 of
the Labor Law, then, in accordance with
Section 239 thereof, Contractor agrees
that neither it nor its subcontractors
shall by reason of race, creed, color,
national origin, age, sex, or disability:
(a) discriminate in hiring against any
New York State citizen who is qualified and
available to perform the work: or
(b) discriminate against or intimidate any
employee hired for the performance of
work under this contract. Contractor is
subject to fines of $50,00 per person
per day for any violation of Section 220-e
or Section 239 as well as possible
termination of this contract and forfeiture
of all moneys due hereunder for a
second or subsequent violation.
6. WAGE AND HOURS PROVISIONS. If this is a
public work contract covered by
Article 8 of the Labor Law or a building
service contract covered by Article 9
thereof, neither Contractor's employees nor
the employees of its subcontractors
may be required or permitted to work more
than the number of hours or days
stated in said statutes, except as
otherwise provided in the Labor law and as
set forth in prevailing wage and supplement
schedules issued by the State Labor
Department, Furthermore, C
