Exhibit 10.4
GUARANTEED FIXED PRICE REMEDIATION AGREEMENT
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This Guaranteed Fixed Price Remediation Agreement ("Agreement") is entered
into by and between Resource Control Corporation ("RCC"), a New Jersey
corporation with offices located at P. O. Box 579 Rancocas, New Jersey 08073-
0579 and Kreisler Manufacturing Corporation ("Kreisler"), with offices located
at 000 Xxx Xxxxx Xxxxxx, Xxxxxxx Park, New Jersey (collectively, the "Parties"),
for professional environmental services, as more specifically set forth in this
Agreement. This Agreement is effective and binding as of the __th day of
_____________, 2001 (the "Effective Date").
RECITALS
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WHEREAS, Kreisler is engaged in the business of manufacturing at a facility
located at 000 Xxx Xxxxx Xxxxxx, Xxxxxxx Xxxx, Xxx Xxxxxx (the "Facility");
WHEREAS, Kreisler is a tenant under a lease dated __________ 2000 ("Lease")
with T&T Investment Co. ("Landlord");
WHEREAS, An environmental assessment of the Site, hereinafter defined, was
conducted which revealed historical discharges of various substances to both
soil and groundwater at the Site as described in the October 27, 1999 Invitation
to Bidders for Fixed Price Bid for Environmental Remediation ("Invitation to
Bidders"); and
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WHEREAS, immediately upon learning of this condition, Kreisler notified the
New Jersey Department of Environmental Protection ("Department") and retained
the services of the Xxxxxxx Companies to conduct the required inquiry and
necessary assessment of the Site in accordance with the Department's Technical
Rules for Site Remediation, N.J.A.C. 7:26E-1.1 et seq.; and
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WHEREAS, Kreisler desires to remediate the Contamination which exists at or
about the Site in accordance with the regulatory requirements of the Department;
and,
WHEREAS, Kreisler has agreed in the Lease to remediate the Contamination.
A copy of the Lease is attached hereto and made a part hereof as Exhibit "A".
WHEREAS, Kreisler desires to retain a qualified, experienced, and competent
professional consultant/engineer/contractor to perform the Work required by the
Department, the Lease Agreement and this Agreement; and,
WHEREAS, RCC is ready, willing and able to perform the work required by the
Department, the Lease and this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
and other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the Parties agree hereby as follows:
1. Definitions
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The following Definitions shall apply throughout this Agreement unless
otherwise indicated.
Agreement means this Agreement, including any Exhibits, and all
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Modifications.
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Applicable Environmental Laws shall mean any and all existing or future
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federal, state and local statutes, ordinances, regulations, rules, executive
orders, standards and requirements, including any requirements imposed by common
law, concerning or relating to safety, industrial hygiene and the protection of
health and the environment including, without limitation; (i) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. 9601 et. seq. ("CERCLA"); (ii) the Resource Conservation and Recovery Act
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of 1976, as amended, 42 U.S.C. 6901 et. seq. ("RCRA"); (iii) the Clean Air Act,
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as amended, 42 U.S.C. 7901 et. seq.; (iv) the Clean Water Act, amended 33 U.S.C.
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1251 et. seq.; (v) the Hazardous Materials Transportation Act, as amended, 49
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U.S.C. 1801 et. seq.; (vi) the New Jersey Industrial Site Recovery Act, formerly
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known as the Environmental Cleanup Responsibility Act, as amended, N.J.S.A.
13:1K-6 et. seq. ("ISRA"); (vii) the New Jersey Spill Compensation and Control
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Act, as amended N.J.S.A. 58:10-23.11b et. seq. ("Spill Act"); (viii) the New
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Jersey Underground Storage of Hazardous Substances Act, as amended N.J.S.A.
58:10A-21 et. seq.; (ix) the New Jersey Water Pollution Control Act, as amended
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N.J.S.A. 58:10A-1 et. seq.; and (x) the New Jersey Department of Environmental
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Protections Technical Rules for Site Remediation, N.J.A.C. 7:26E-1.1 et. seq.
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("Technical Rules").
Business Days mean Monday through Friday, except for Federal holidays.
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Contamination means any and all substances, including Hazardous Substances,
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discovered to date and disclosed to RCC, or discovered during the course of
implementing the Work, located in soil, groundwater, or any other media at the
Site, or
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originating at and having migrated from the Site, which Kreisler is legally
obligated to remove, control or remediate pursuant to the Lease, the New Jersey
Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et. seq., the New
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Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et. seq., or any other
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Applicable Environmental Laws.
Days means calendar days unless otherwise indicated.
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Department means the New Jersey Department of Environmental Protection and
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any successor thereto.
Hazardous Substances means and includes any dangerous, hazardous or toxic
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substance, material or waste which is or becomes regulated by any local
governmental authority, the State of New Jersey, or the United States
Government. The term includes any material or substance that is (i) regulated
under any applicable state statute or regulation, as a potential threat to
health, safety or environmental quality; (ii) petroleum; (iii) asbestos
(excluding asbestos which forms part of the building structure or interior);
(iv) designated as a "hazardous substance" or "pollutant or contaminant"
pursuant to Applicable Environmental Laws; (v) defined as a "hazardous waste"
pursuant to Applicable Environmental Laws; (vi) defined as a "regulated
substance" pursuant to Applicable Environmental Laws; or (vii) defined as a
"special waste" or (viii) defined as a "residual waste".
Include(s) or Including means including, but not limited to.
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Landlord means T&T Investment Company.
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Lease means the Lease agreement between Kreisler and Landlord dated
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October 1, 2000 attached as Exhibit "A" and made a part hereof.
Modification means a written agreement signed by Kreisler and RCC that
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changes this Agreement.
Other Services means construction, operations or other activities at the
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Site which are outside the scope of this Agreement or unrelated to the Work
which may be performed by or on behalf of Kreisler by a person or entity other
than RCC.
Progress Milestones Schedule means the payment schedule set forth in
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Section 13C.
Progress Report Schedule means a schedule provided by RCC to Kreisler that
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details the actual progress of the Work, including any deviations from the
original schedule.
Project means the investigation, remediation and regulatory activities at
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the Site performed pursuant to the Agreement.
Project Completion means performing all obligations under this Agreement
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including obtaining from the Department a written No Further Action Letter as
defined in N.J.A.C. 7:26E-1.8, or equivalent ("NFA") together with a covenant
not to xxx as defined in N.J.S.A. (S)58:10B-13.1, with respect to Contamination
at, about migrating from or otherwise with respect to the Site.
Services has the meaning set forth in Section 2 of this Agreement.
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Site means the area(s) where the Work is to be performed in Elmwood Park,
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New Jersey to achieve Project Completion, as generally described in the
Invitation to Bidders, and including the Facility.
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Work means all manners of things necessary to be furnished or done by or on
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behalf of RCC to achieve Project Completion by performance of the Services set
forth in Section 2.
2. Statement of Work
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A. RCC shall perform or cause to be performed for the fixed fee set forth
in Section 13A, and any additional amounts required to be paid under
Section 13B, all necessary investigation, remediation, and regulatory
activities (hereinafter collectively referred to as the "Services") so as
to achieve and document Project Completion, including the following:
(i) Preparing and submitting to the Department a (1) Preliminary
Assessment/Site Investigation; (2) Remedial Investigation
Report and Remedial Action Work Plan; and (3) a Negative
Declaration Affidavit which shall meet all data and other
documentation requirements under the Department's Technical
Rules demonstrating that Project completion has been achieved.
(ii) All labor, materials, equipment, subcontractor charges,
laboratory charges, drilling fees, disposal charges, permitting
fees and taxes incurred by RCC in achieving Project Completion.
The Services shall also include payment for transportation,
storage, treatment and disposal of Hazardous Substances.
(iii) Paying for oversight charges imposed by the Department relating
to achieving Project Completion.
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(iv) Any further subsurface investigation activities which RCC or
the Department deems necessary to define the nature and extent
of the Contamination.
(v) Abandonment, in accordance with the Lease and Applicable
Environmental Laws, of any xxxxx installed by RCC.
(vi) The timely preparing of any reports, documents or other
communications required by the Department, Applicable
Environmental Laws, the Lease and any insurers involved with
the Project.
(vii) With respect to the technical approach to remediation, Kreisler
and RCC acknowledge that additional Site investigation and
evaluation may be necessary before RCC can determine the
specific technical approach that is necessary and appropriate
to achieve Project Completion. RCC shall negotiate a technical
approach with the Department which is acceptable to the
Department and develop a Remedial Action Plan to implement the
approach approved by the Department. Kreisler and RCC
acknowledge that deviations from the Remedial Action Plan may
become necessary as the remediation proceeds and that RCC may
make such deviations as are reasonably necessary in order to
cost-effectively achieve Project Completion provided that RCC
(i) obtains any necessary approvals from the Department; and
(ii) provides Kreisler with a
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reasonable opportunity to comment on any proposed deviations
prior to proposing them to the Department. In no event,
however, shall RCC propose or implement any deviations which
conflict with Kreisler's obligations under the Lease.
(viii) RCC shall present to and negotiate with the Department a
regulatory strategy for achieving Project Completion. The
regulatory strategy may include performing a risk assessment,
undertaking active remediation and/or establishing
institutional controls. Any proposed institutional controls
shall take into account the commercial and industrial uses of
the Site and may include restrictions on (1) the installation
of drinking-water xxxxx on-site, and (2) development of
buildings or structures over soil containing Contamination
unless appropriate health & safety precautions are included in
the design and construction of such buildings or structures.
RCC will attempt to achieve unrestricted use of the Site
following Project Completion or to minimize the need for deed
restrictions, institutional controls, or any other
restrictions in the event unrestricted use of the Site is not
achievable. RCC shall, to the extent possible, negotiate with
the Department a provision for the future removal of any deed
or use restrictions should such restrictions become necessary.
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(ix) Notwithstanding anything else to the contrary contained in this
Agreement, nothing proposed or implemented by RCC to achieve
Project Completion shall be contrary to Kreisler's obligations
under the Lease and all Work shall be performed in accordance
with the Lease.
B. RCC shall perform the Services, as needed, as set forth in Section 13C
at the amounts set forth therein.
3. Responsibilities of Kreisler. Kreisler shall cooperate with RCC, as
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may be reasonably necessary to the implementation of the Project,
including by doing the following:
(1) Providing access for RCC's Services at the project Site;
(2) Obtaining access for any off-Site activities related to the
Services;
(3) Supporting RCC in its negotiation of the technical remediation
approach, regulatory strategy and scope and level of remediation
with the Department and the Landlord;
(4) Continuing to make available any reports in its possession
regarding the environmental condition of the Site; and
(5) Kreisler shall be listed as the owner and generator of all
wastes and shall be responsible for signing all manifests
required for the transportation and disposal of hazardous
wastes.
4. Scheduling, Reporting and Coordination.
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(1) Kreisler and RCC shall agree upon a Progress Report
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Schedule which shall, at a minimum, be consistent with any
reporting requirements of the Department and any Remediation
Stop Loss Insurance Policy.
(2) During the performance of the Work, RCC shall, in accordance
the Progress Report Schedule, submit to Kreisler or its
Authorized Representative, periodic progress reports on the
actual progress of the Work, which shall include updated
schedules and copies of all correspondence and other
materials delivered to or received from the Department.
(3) RCC recognizes that Kreisler and other contractors and sub-
contractors under contract to Kreisler may be working
concurrently at the Site. RCC agrees to cooperate with
Kreisler and such other contractors so that the performance
of the Services as a whole will progress with a minimum of
interruption to RCC, Kreisler, other contractors, tenants,
licensees and invitees. RCC shall be entitled to rely on
Kreisler's reasonable cooperation and the reasonable
cooperation of Kreisler's other contractors to complete the
Work in a timely, orderly and efficient manner. Kreisler
shall provide RCC with
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reasonable notice of other work performed or anticipated to
be performed at the Site to avoid interference.
(4) Kreisler reserves the right to perform any construction,
operations, or other activities at the Site which are
outside the scope of Work, or unrelated to the Work through
Kreisler's own employees or through award of separate
contracts to other consultants or contractors (collectively
"Other Services"). Upon written request from RCC, Kreisler
shall provide information reasonably requested by RCC
concerning the Other Services. Kreisler shall provide a
representative to meet with representatives of RCC to
coordinate the Work with the Other Services.
(5) RCC shall not interfere with the performance of such Other
Services at the Site and shall reasonably coordinate the
Work with such Other Services. Upon written request from
Kreisler, RCC shall provide Kreisler's contractors with
instructions and other information reasonably requested by
Kreisler, such as maps showing the location of monitoring
xxxxx, recovery xxxxx, and any other equipment on Site
(collectively, the "Equipment"), in order to identify the
location of any Equipment installed by RCC to enable such
contractors to avoid impeding or delaying any construction
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activities at the Site and avoid any damage to or
destruction of the Equipment. RCC shall provide a
representative to meet with representatives of Kreisler or
Kreisler's contractors from time to time as necessary to
coordinate the Work with Other Services at the Site. RCC, at
its expense, shall relocate the planned placement of all
Equipment to the extent necessary to accommodate any
redevelopment plans for the Site, provided such plans are
disclosed to RCC prior to the Effective Date and in a manner
sufficient to identify the location, layout, and depth of
any redevelopment construction.
(6) At any time Kreisler believes that RCC is failing to
cooperate or coordinate adequately its activities with
Kreisler or Kreisler's Other Services, Kreisler shall notify
RCC in writing, and describe with reasonable specificity the
actions RCC should take. Similarly, in the event that RCC
believes at any time that Kreisler or contractors performing
Other Services, are failing to cooperate with RCC, RCC shall
notify Kreisler in writing and describe with reasonable
specificity the actions Kreisler should take. Thereafter,
Kreisler and RCC shall meet to mutually resolve any
interference issues.
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(7) RCC shall submit drafts of all work plans, site assessments,
remedial action plans, negative declaration affidavits and
other reports and correspondence to Kreisler's authorized
representative prior to submission to the Department.
Kreisler shall have at least 7 days and not longer than 21
days in which to review the document and provide comments or
changes to RCC. RCC shall incorporate such comments or
changes when feasible and consistent with the technical and
regulatory approach of RCC and the Lease and shall explain
to Kreisler the reasons for any decision by RCC not to
incorporate any of Kreisler's comments or changes. Upon
request of Kreisler, RCC shall meet Kreisler at RCC's local
office or at another mutually agreeable location to discuss
such comments or changes. Anything to the contrary
notwithstanding, Kreisler reserves the right to make the
final decision and to approve the contents of submissions to
the Department, provided that Kreisler's decision on the
final contents of the submission are not inconsistent in any
material respect with the other terms and conditions of this
Agreement. Such approval shall not be unreasonably withheld
or delayed.
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5. Cleanup. RCC shall keep all work areas in a neat, clean and safe
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condition and in compliance with all applicable laws. RCC shall remove
from the Site and properly dispose of all wastes generated in
connection with the Work. Upon completion of the Work, RCC shall
remove from the Site all of RCC's equipment and material, with the
exception of below ground piping which may be left in place provided
that it is properly grouted and capped at each end. The Site shall be
left clean, safe, ready for use and in as close to its original
condition as is reasonably practicable to the extent it can be done in
a manner consistent with the Work.
6. Authorization to Proceed. RCC shall be authorized to proceed to
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perform Work upon execution of this Agreement, and submission of proof
of bonds and insurance required by this Agreement.
7. Independent Contractor. RCC shall be fully independent in performing
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the Work and shall not act as Kreisler's agent or employee, but rather
as an independent contractor retained by Kreisler to perform the Work.
RCC shall not take any action or omit to take any action that is
inconsistent with its status as an independent contractor under this
Agreement. RCC shall be solely responsible for all licensing and
permitting fees imposed in connection with the Work and for payment of
all compensation, benefits, contributions, and taxes, if any, due its
employees, agents, contractors, and subcontractors.
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8. Subcontracts. RCC shall be entitled to subcontract performance of any
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portion of the Work under this Agreement, provided that such action
shall not in any manner relieve RCC from responsibility for
undertaking the Work, nor from responsibility for the actions of its
subcontractors.
9. Authorized Representative. RCC and Kreisler shall each direct
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communications with each other through one designated representative
("Authorized Representative"). The initial Authorized Representative
of Kreisler shall be Xxxxxxx X. Xxxxx and that of RCC shall be Xxxxxx
Xxxxx. Each party may change its Authorized Representative by giving
written notice to the other.
10. Notices to Authorized Representatives.
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A. RCC shall notify Kreisler's Authorized Representative, and
Kreisler shall notify RCC's Authorized Representative within
three Business Days of becoming aware of the occurrence of an
event described below:
(1) Kreisler, RCC or any agent or subcontractor receives notice
of a violation of any governmental pronouncement,
requirement, or authorization which relates to the
performance of the Work;
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(2) Proceedings are commenced or threatened which could lead to
the modification, revocation or abeyance of permits,
licenses, or other governmental authorizations which relate
to the Work;
(3) Permits, licenses, or other governmental authorizations
relating to the Work are suspended, modified or revoked;
(4) Litigation is commenced or threatened concerning or
affecting the Work or the Site;
(5) Any other condition occurs or is threatened to occur which
may have a materially adverse effect on the timely
performance of the Work, or the timely performance of any
duties RCC or Kreisler may have related to the Work under
any applicable law, regulation, ordinance, order, decree, or
plan.
B. Failure of Kreisler or RCC to provide the other with the notice
required by this Section shall not relieve the other Party from
any obligation it otherwise have under this Agreement except to
the extent that failure to provide such notice has actually
prejudiced the other Party's ability to fulfill the obligation.
11. Conflicts. RCC, its agents, and subcontractors shall not, during the
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term of this Agreement, undertake any employment or engagement, or,
except as required by law, perform any act or allow any omission,
which may result in a conflict with any of their respective
obligations under this Agreement including adequately staffing the
Work. In the event RCC is
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called upon under a purported requirement of law to do or omit
anything which may be in violation of the foregoing, RCC shall give
Kreisler's Authorized Representative sufficient advance written notice
thereof to allow the matter to be contested by Kreisler.
12. Representations and Warrantees
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A. RCC represents and warrants that:
1. Standard of Care. It is qualified to perform the Work
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requested by this Agreement and that it has sufficient
expertise and experience to accomplish the Work. RCC
represents and warrants that it shall perform the Work and
all other obligations under this Agreement in compliance
with this Agreement, the Lease and all applicable laws
including Applicable Environmental Laws, and the standards
of care and diligence normally practiced by nationally
recognized firms performing Services of a similar nature.
2. Remediation Guarantee. It will fulfill all its obligations
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under this Agreement necessary to achieve Project
Completion, regardless of the expense or difficulty of same;
subject to the Representation and Warranty of Kreisler
contained in Subsection B 1, Existing Conditions. RCC
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agrees that it shall bear the full risk of any unexpected or
unanticipated cost increase in the Work, including:
(i) unknown Contamination discovered during conduct of
the Work;
(ii) increased levels or quantities of currently known
Contamination;
(iii) cost overruns, including costs related to use of
ineffective methods or procedures; and
(iv) changes in Applicable Environmental Laws.
3. Financial Resources. It has the financial resources to
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fulfill all the obligations of this Agreement with diligence
to Project Completion, even if the Contamination exceeds
RCC's estimate thereof, and RCC agrees to use such resources
as necessary to diligently achieve Project Completion.
4. Necessary Skills. It has all the necessary skills,
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training, and expertise required to accomplish the
requirements of this Agreement and is experienced in
providing services at similar sites involving similar
environmental conditions.
5. Adequate Staffing. It will furnish a competent and adequate
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staff as necessary for the proper, diligent and timely
administration, performance, coordination, and
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supervision of the Work; organize the procurement of all
materials and equipment so that they will be available at
the time they are needed for performance of the Work; and
keep an adequate force of skilled staff on the job to
complete the Work in accordance with the provisions of this
Agreement.
6. Subcontractors. It will pay promptly its subcontractors all
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amounts due and payable and shall indemnify, defend, and
hold Kreisler and Landlord harmless from any claims or liens
of subcontractors. Kreisler reserves the right to pay
directly any undisputed amounts otherwise due subcontractors
and offset amounts otherwise due RCC. Nothing herein shall
imply any obligation of Kreisler to directly pay any
subcontractor.
7. Supervision. It shall supervise and direct the Work, using
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RCC's best skill and attention. Subject to provisions to the
contrary, RCC shall be responsible for and have complete
control over: (1) performance means, methods, techniques,
sequences, and procedures, (2) health or safety precautions
and programs in connection with the Work, and (3)
coordinating the Work under the Agreement, unless
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directed otherwise by Kreisler or its Authorized
Representative.
8. Site Investigation. It has had an adequate opportunity to
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visit the Site and off-site properties, to study relevant
documents concerning the Site and off-site properties, and
to conduct such other investigations as RCC deemed
necessary, prior to entering into this Agreement.
X. Xxxxxxxx represents and warrants that:
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1. Existing Conditions. It made available to RCC all relevant
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information in its possession regarding existing environmental,
geologic and geotechnical conditions of the Site and it provided
to RCC, in writing, all criteria, preliminary design, plans and
all other information relating to Kreisler's requirements for the
Project, including, but not limited to, plot plans, topographic
surveys, hydrogeologic data, previous soil data, field or
laboratory tests and written reports.
13. Contract Price and Payment
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A. Contract Price. RCC shall receive the total fixed price of
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$2,115,122 ("Contract Price") and an additional sum of
$22,000 as set forth herein ("Additional Sum"). Neither the
Contract Price, nor the Additional Sum include reimbursement
for the cost of Bonds required by Section
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15G. No adjustments will be made to the Contract Price,
including any arising from the conditions set forth in
Section 12A(2), Remediation Guarantee, except as expressly
set forth in Section 13B below.
B. Contingent Payments.
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(1) RCC has advised Kreisler that, based upon Site sampling
performed by RCC on or about February 21, 2001, and
reported in a certain letter dated April 16, 2001, there
is the potential need for additional off-site
remediation in the down-gradient area of Xxxxxxxxx Xxxxx
("Xxxxxxxxx Xxxxx Area of Concern" or "Xxxxxxxxx Xxxxx
AOC"). If additional Services are required in connection
with the Xxxxxxxxx Xxxxx AOC, all such Services shall be
performed by RCC or under its direction on a unit price
basis of $8,000 for the first 20 tons of soil; an
additional $16,000 for 21 to 60 tons of soil; an
additional $16,000 for 61 to 100 tons of soil; an
additional $40,000 for 101 to 200 tons, and an
additional $50,000 for all quantities over 200 tons of
soil, with a not to exceed aggregate price of $ 130,000.
(2) RCC has also advised Kreisler that, in addition to the
areas requiring remediation identified in its proposal
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and the Xxxxxxxxx Xxxxx AOC, several previously
uninvestigated floor drains in the central portion of
the Facility represent other areas of concern ("AOC")
which, following additional investigation to be
performed by RCC under Section 2.A. above, may require
additional remediation. If additional Services are
required with respect to said additional AOCs, RCC shall
perform or cause to be performed all such Services on a
unit price basis of $ 35,000 for the first 5,000 square
feet of additional remediation area, an additional $
60,000 for 5,000 to 15,000 square feet of additional
remediation area, and an additional $ 100,000 for over
15,000 square feet of additional remediation area, with
a not to exceed aggregate price of $ 195,000.
(3) RCC shall perform any and all additional Services
necessary to address any other AOCs, potential AOCs, or
areas of contamination at or with respect to the Site at
no additional cost to Kreisler.
C. Payment Schedule. In connection with payment of the
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Contract Price, an Initial Payment of 12% of the Contract
Price shall be made to RCC upon execution of this Agreement,
plus the cost of the Bond premiums which shall
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reimburse RCC for previous payments of same. The balance of
the Contract Price shall be paid to RCC in the form of
progress payments according to the Progress Milestones
Schedule described below. If a Milestone is eliminated from
the Work, its associated payment shall be made to RCC upon
accomplishment of the activities that replace the eliminated
Milestone, or if no activity replaces the Milestone, upon
accomplishment of the next scheduled Milestone.
(1) The Second Payment of 14% of the Contract Price shall be paid to
RCC upon completion of remedial investigations and submission of
the remedial investigation technical report to the Department.
(2) The third payment of 7% of the Contract Price shall be paid to
RCC upon completion of a pilot test or feasibility study and
submission of the pilot test or feasibility study report to the
Department.
(3) The fourth payment of 6% of the Contract Price shall be paid to
RCC upon submission of a Remedial Action Plan to the Department.
(4) The fifth payment of 13% of the Contract Price shall be paid to
RCC following the completion of the soil excavation activities.
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(5) The sixth payment of 13% of the Contract Price shall be paid to
RCC following receipt of the Department's approval of the
Remedial Action Work Plan and subsequent startup of the
remediation system and submission of a startup report to the
Department.
(6) The seventh through eighteenth payments of 2% each of the
Contract Price will be paid to RCC on a quarterly basis for up to
3 years commencing with the quarter following payment 6. These
progress payments are associated with a possible operation and
maintenance period prior to RCC's obtaining a conditional NFA for
groundwater from the Department. If the operation and maintenance
period exceeds three years, RCC (at its sole cost) will continue
to perform the operation and maintenance, as required, until
Project Completion.
(6) Upon obtaining a conditional NFA for groundwater, Kreisler shall
pay to RCC:
(i) 11% of the Contract Price and
(ii) the equivalent of interest on the Adjusted Contract Price at
an interest rate of 5.29% per annum over the Period of
Calculation (both defined below). Adjusted Contract Price is
defined as the Contract Price, net of the Initial Payment,
decreased over the Period of Calculation to reflect all
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payments of the Contract Price. The Period for Calculation
begins with the date of the Authorization to Proceed and
ends with the earlier of the date of obtaining a conditional
NFA for groundwater, or 6 years after the date of
Authorization to Proceed, whichever is earlier.
(7) RCC will be paid $7,300 of the Additional Sum upon submission to
Kreisler of a written report setting forth the results of the
first round of sampling following receipt of the conditional NFA
for groundwater. The balance of the Additional Sum is of $14,700
will be paid upon Project Completion.
(8) Kreisler shall pay RCC any amounts due under Section 13B, in
accordance with Section 13D.
D. Payment Documentation. Kreisler shall make payments to RCC in
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accordance with the Payment Schedule in Section 13 C. Upon
accomplishing each milestone, or, in the case of amounts payable to
RCC under Section 13B, for all Services performed by RCC during the
previous thirty days (subject to the overall limits set forth in
Section 13B), RCC shall submit an invoice therefore together with
appropriate evidence of the accomplishment of the milestone, or of the
Services performed in the case of Section 13 B, to Kreisler's
Authorized Representative, (e.g., a copy of a report and a signed
return receipt of the report by the Department) or certified payroll
records and material invoices (including treatment or
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disposal documentation) in the case of Section 13 X. Xxxxxxxx shall
issue the payment to RCC within twenty-one (21) days after receipt of
the invoice and supporting documentation unless Kreisler submits to
RCC a written objection within fourteen (14) days after Kreisler's
receipt of the invoice. Each objection shall set forth with reasonable
specificity the nature of the objection. In the event notice of
objection to an invoice is provided as required herein, Kreisler and
RCC shall use their best efforts to resolve the objection to the
disputed invoice. Payment of any undisputed portion of the disputed
invoice shall be due thirty (30) days after the Authorized
Representative's receipt of the invoice. Payment of the disputed
portion of the disputed invoice shall be due twenty-one (21) days
after the Parties' resolution of the disputed invoice. All objections
to invoices that have not been resolved within 60 days of receipt of
the objection by RCC shall be subject to binding Arbitration as
provided herein. Objections to payment of invoices must be based on
one or more of the following reasons:
1. RCC has failed to complete the Payment Milestones in
question;
2. Work was not performed in accordance with the Agreement;
26
3. RCC has failed to make payments in accordance with the terms
of RCC's contracts with its subcontractors or for labor,
materials, or equipment supplied to the Site,
4. A claim against Kreisler or the Site, has been filed by a
third party, in connection with the Work performed by RCC;
5. RCC has caused damage to Kreisler or the Site, or to other
contractors at the Site or RCC is otherwise failing to
comply with a material provision of the Agreement, or
6. Work performed and paid for under prior Milestones, or
invoices in the case of Section 13 B, is found to be
deficient.
14. Contract Performance Schedule
-----------------------------
RCC shall use its best efforts to achieve Project Completion, as
expeditiously as possible, consistent with the Project Milestones.
15. Insurance
---------
A. Required Insurance.
-------------------
(1) RCC shall maintain, at its own expense and for the period set
forth in Section 15 C, Terms of Coverage, the following insurance
coverage in the following amounts:
(i) Worker's Compensation and Employer's Liability Insurance in
an amount not less than that prescribed by law;
27
(ii) Comprehensive Automobile Liability Insurance (owned, non-
owned, and hired) with limits of one million dollars
($1,000,000) per occurrence and two million dollars
($2,000,000) in the aggregate and umbrella and excess
coverage, with a limit of seven million dollars
($7,000,000) (as long as such limit is commercially,
reasonably available, otherwise, the maximum amount which
is commercially, reasonably available);
(iii) Commercial General Liability Insurance with limits of one
million dollars ($1,000,000) per occurrence and two
million dollars ($2,000,000) in the aggregate which policy
shall have broad-form contractual liability coverage and
such endorsements as may be reasonably acceptable to
Kreisler and umbrella and excess coverage with a limit of
seven million dollars ($7,000,000) each incident and in
the aggregate (as long as such limit is commercially,
reasonably available, otherwise, the maximum amount which
is commercially, reasonably available); and
(iv) Professional Errors and Omissions and Contractor's
Pollution Legal Liability Insurance with limits of two
million dollars ($2,000,000) per incident and in the
aggregate and umbrella and excess coverage, with a limit
of
28
seven million dollars ($7,000,000) (as long as such limit
is commercially, reasonably available, otherwise, the
maximum amount which is commercially, reasonably
available);
(2) RCC's Commercial General Liability, Professional Errors and
Omissions and Pollution Legal Liability coverage may be provided
under one policy, but with separate deductibles and coverage as
set forth herein.
B. Remediation Stop Loss Insurance. In its sole discretion, Kreisler may
--------------------------------
elect to purchase Remediation Stop Loss Insurance. Under such
circumstances, Kreisler agrees to add RCC as an additional insured.
The purchase of such insurance by Kreisler, however shall not relieve
RCC of any of its obligations under this Agreement including its
obligation to perform the Services and any additional Services as set
forth in Section 13B for the Contract Price, the Additional Sum and
any Contingent Payments.
C. Term of Coverage. With respect to Sections 15 A, insurance of a
-----------------
sufficient magnitude to satisfy the foregoing shall be maintained
during the course of the Work and for at least four years following
the termination of the Agreement or the completion of the Work under
this Agreement. The required insurance shall provide coverage for the
acts and omissions of RCC, its agents, employees, contractors, and
subcontractors, and shall
29
contain broad-form contractual liability coverage. All policies shall
be issued on an "occurrence" basis. All policies shall require that
Kreisler be provided with thirty (30) days advance written notice of
cancellation, reduction, change, or non-renewal of each such policy.
Proof of insurance shall be provided by RCC at execution of this
Agreement and will be kept up to date at all times by RCC. In the
event a Professional Errors and Omissions and Contractor's or
Pollution Legal Liability Insurance policy is to be terminated, RCC
shall prevent any gap in coverage during the course of the Work and
for four (4) years thereafter by either (i) extending the present
policy to cover the time period before a new policy is obtained or
(ii) purchasing a new policy which relates back to cover the
appropriate time period. The provisions of this Section 15C shall
survive the completion of the Work or termination of this Agreement.
D. Copy of Policy. If requested, a current copy of any of the insurance
---------------
policies required under this Agreement shall be provided to Kreisler
by RCC. RCC represents and warrants that, except as described in
detail in Exhibit "B", attached and made a part hereof for all
purposes, RCC is not the subject of or a party to any claim, demand,
mediation, arbitration, lawsuit, or judgment as would threaten
availability of the insurance coverage required under this Agreement.
RCC shall promptly update the information on Exhibit "B" whenever a
material change in said information occurs.
30
E. Named as Additional Insureds. Kreisler shall be named as an additional
-----------------------------
additional insured with waiver of subrogation rights on all insurance
coverage provided by RCC as per Sections 15 A and 15 B, except
worker's compensation and Professional Liability Errors and Omissions
coverage or except where Kreisler shall decline same in advance and in
writing.
F. Waiver of Rights. Kreisler and RCC waive all rights against one
-----------------
another for all losses and damages to the extent covered and actually
paid by the policies of insurance provided for herein and applicable
to the Work.
X. Xxxxx. Following execution of this Agreement, but later than
------
commencement of the excavation and remediation system construction
portion of the Project, RCC shall provide Kreisler, at Kreisler's
expense, a Labor and Materialman Bond and a Performance Bond
(collectively, "Bonds") in amounts each equal to the estimated cost of
the excavation and remediation system construction portion of the
Project, $1,243,190. The cost of the Bonds shall not exceed $25,000.
Such Bonds shall be:
(i) issued by a surety company authorized to do business in New
Jersey and acceptable to Kreisler; and
(ii) in a form acceptable to Kreisler.
16. Financial
---------
A. Control of Management RCC shall be solely responsible for and Kreisler
---------------------
shall have no right with respect to the management of RCC's own
internal
31
affairs, including, without limitation, those relating to its
compliance with laws, regulations and rules governing its formation,
preservation and functioning as a corporation and its management,
accounting policies, insurance programs, shareholder and labor
relations, as related to RCC's performance of the Work under this
Agreement, and otherwise.
B. Financial Statements. Upon Kreisler's written request, at any time,
---------------------
RCC shall provide Kreisler with such financial statements as are
available to provide information relative to the financial ability of
RCC to perform the Work under this Agreement and to otherwise satisfy
its obligations hereunder. Kreisler shall maintain the confidentiality
of, and not disclose the information to anyone (other than officers of
Kreisler, Kreisler's counsel, or Kreisler's lenders, who shall be
required to sign a Confidentiality Agreement). All such financial
statements must be prepared in accordance with Generally Accepted
Accounting Principles ("GAAP") consistently applied and must fairly
present the financial condition and results of operations of RCC for
the periods covered hereby.
17. Assignment of Kreisler's Rights to Future Buyer
-----------------------------------------------
It is understood that Kreisler may convey or assign its rights under
this Agreement (provided Kreisler's duties and obligations hereunder are
delegated to and assumed in full by a buyer and/or assignee) in conjunction
with a transfer or sale of all or a portion of its business. In the event
of a subsequent disposition of all or a portion of the business, RCC shall
agree that a buyer and/or assignee or a
32
foreclosing lender or other similar party may succeed to the rights of
Kreisler in connection with the Project, subject to additional conditions
that (1) RCC's rights and obligations shall remain intact and unaffected by
any such disposition of the business or portion thereof and (2) buyer's
and/or assignee's rights shall not be any greater than Kreisler's
hereunder, or enlarged with respect to enforcement or carrying-out of any
corresponding obligations of RCC vis-a-vis the rights and privileges of
Kreisler. It is a condition of the assignment hereunder of Kreisler's
rights to future buyers, that if portions of the business are sold to more
than one buyer, the assignee of the Lease for the Facility, or, if none,
the buyer of a majority of Kreisler's assets, shall represent the buyers
for purposes of administering and completing the performance of this
Agreement.
18. Kreisler's Remedies
-------------------
A. Partial Takeover of Work. If RCC fails or refuses to perform the Work
------------------------
in accordance with this Agreement, Kreisler, without prejudice to any
other right or remedy Kreisler may have at law or equity, or under
this Agreement, may, after giving notice:
(1) Terminate the Agreement for Cause as set forth in Section 18 B;
(2) Order RCC to stop performance of the Work, or any portion
thereof, until the failure to perform has been eliminated by RCC
at RCC's cost and expense. However, the right of Kreisler to
order RCC to stop performance of the Work shall not give rise to
a duty on the part of Kreisler to exercise this right for the
benefit of RCC
33
or any other person or entity;
(3) Perform the Work, using its own employees and equipment, or the
employees and equipment of another and/or the equipment of RCC at
the site or RCC's agents or subcontractors (without liability for
trespass or conversion), after giving ten (10) Business Days
written notice to RCC and, its Surety. Kreisler may deduct from
the payments then or thereafter due to RCC the cost of performing
such Work, including, but not limited to, the cost of additional
engineering and management made necessary by RCC's failure to
perform such Work and interest on any funds advanced by Kreisler
for such costs at (i) the rate of 5.29% per annum from the date
of each such advance until payment thereof by RCC, or (ii) the
maximum nonusurious rate authorized or allowed by applicable law,
if greater.
(4) Following notice, RCC shall have ten (10) Business Days to cure
any failure or refusal to properly perform the Work before
Kreisler may exercise its rights under this Section.
B. Termination for Cause. Notice of Termination for Cause, as defined in
----------------------
Section 18 C shall be by written notice ("Termination Notice") from
Kreisler to RCC and its Surety at least ten (10) business days prior
to the proposed termination date ("Termination Date"); provided,
however, this ten (10) day period may be extended at the discretion of
Kreisler to allow for cure by RCC. RCC shall have until the
Termination Date to cure the
34
default. If the default is cured prior to the Termination Date, as
acknowledged in writing by Kreisler, the Termination Notice shall
automatically be deemed of no further force or effect. Termination for
Cause shall be effective in the manner specified in the Termination
Notice and shall be without prejudice to any claims of Kreisler under
law or equity or any other provision of this Agreement.
Upon termination of this Agreement by Kreisler pursuant to this
Section 18 B, the following may occur at the sole discretion of
Kreisler:
(1) Kreisler may call upon the Surety to complete the Work under the
Performance Bond.
(2) Kreisler may take possession of any or all materials and
equipment, tools, and construction equipment (owned by RCC) at
the Site and finish the Work by whatever method Kreisler may deem
expedient.
(3) RCC shall, upon request by Kreisler, promptly advise Kreisler of
all outstanding unperformed or uncompleted subcontracts, rental
agreements, and purchase orders which RCC has with others
pertaining to performance of the Work and furnish Kreisler with
complete copies thereof. Upon request by Kreisler, RCC shall
assign to Kreisler, without expense to Kreisler, and by
instrument in form and content satisfactory to Kreisler, RCC's
title to materials and equipment previously paid for, and those
subcontracts, rental agreements, and purchase orders designated
by Kreisler.
35
(4) RCC shall be entitled to receive payment pursuant to Section 13 B
for Work performed in accordance with the terms of this Agreement
up until the Termination Date less excess cost to compete. If the
sum of the cost to Kreisler to complete the Work plus amounts
previously paid to RCC for the Work exceed the Contract Price for
the completed Work, RCC shall promptly pay the difference to
Kreisler.
(5) Kreisler shall have the right to waive an event of default and
such waiver shall not waive future defaults by RCC, nor estop
Kreisler from asserting such future defaults as a basis for
termination.
C. Termination for Cause by Kreisler. With respect to RCC, the following
----------------------------------
shall constitute "Cause":
(1) If the Work is not diligently performed;
(2) If the Work is not performed in accordance with the material
provisions of this Agreement; or RCC otherwise fails to comply
with a material provision of the Agreement.
(3) If RCC fails to comply with applicable laws, rules, regulations,
statutes, permits, orders or ordinances, including Applicable
Environmental Laws, (hereinafter collectively referred to as
"Applicable Laws") pertaining to the Work;
36
(4) If any voluntary proceedings in bankruptcy or insolvency are
commenced by or against RCC, except if withdrawn within 60 days;
and/or
(5) If RCC commits any act of bankruptcy or becomes insolvent or
unable to meet its debts as they mature.
If RCC is in default under this Agreement, and notwithstanding Section
26 B, Arbitration or Disputes, Kreisler shall, in addition to the
termination rights set forth herein, have all rights and remedies
available to it at law or in equity, including, without limitation,
the right to seek specific performance to enforce this Agreement.
Nothing contained in the foregoing sentence shall be deemed to imply
that Kreisler shall have the right to terminate this Agreement for any
reason other than "cause" or prior to the Termination Date.
C. Disengagement Services. Upon Termination for Cause by Kreisler, RCC
-----------------------
shall, upon Kreisler's written request, perform such Services as
Kreisler reasonably deems necessary to preserve and protect the Work
already in progress and to dispose of any property as requested by
Kreisler or its Authorized Representative.
19. Notice of Breach by RCC
-----------------------
Following written notice and a ten (10) Business Day opportunity to
cure (or such longer period as allowed by RCC), RCC may declare Kreisler in
breach of the Agreement ("Breach") and stop performance. Notwithstanding
the previous
37
sentence, RCC shall not stop performance if the validity of the Breach is
subject to Section B Arbitration of Disputes.
20. Definition of Breach. With respect to Kreisler, the following shall
---------------------
constitute a Breach.
(1) If Kreisler wrongfully withholds payment to RCC under Section 13D
for the undisputed portion of valid invoices;
(2) If Kreisler fails to timely pay RCC any undisputed amounts owed
to RCC by Kreisler hereunder; or,
(3) If Kreisler or Landlord wrongfully prevent RCC from performing
its material duties and obligations under this Agreement.
21. Termination without Cause or Breach
-----------------------------------
Neither party shall have the unilateral right to terminate this
Agreement without Cause or Breach.
22. Indemnities and Limitation of Damages
-------------------------------------
A. Indemnity by RCC. RCC agrees to indemnify, hold harmless, and defend
-----------------
(with attorneys reasonably acceptable to the applicable indemnified
Party) Kreisler, Kreisler's directors, officers, employees, agents,
representatives, shareholders, partners, investors, affiliates,
parents, subsidiaries, successors, assigns and Landlord from and
against losses, damages, interest, liabilities, proceedings, causes of
action, claims, suits, demands, actions, judgments, fines, penalties,
costs, and expenses (hereinafter collectively referred to as
"Claims"), which any or all of them
38
may become responsible for or pay out to the extent resulting from or
arising out of:
(1) Performance of the Work by RCC or its employees, agents,
representatives, contractors, subcontractors, successors, or
assigns; or,
(2) Any breach of this Agreement by RCC or its employees, agents,
representatives, contractors, subcontractors, successors, or
assigns.
B. Indemnity by Kreisler. Kreisler agrees to indemnify, hold harmless,
----------------------
and defend (with attorneys reasonably acceptable to the applicable
indemnified Party) RCC, the affiliated companies of RCC, and all of
their respective directors, officers, employees, agents,
representatives, shareholders, partners, affiliates, parents,
subsidiaries, successors, and assigns from and against any Claims
which any or all of them may become responsible for or pay out to the
extent resulting from or arising out of:
(1) Performance by Kreisler of any of its obligations under the
Agreement; or,
(2) Any breach of this Agreement by Kreisler or its employees,
agents, contractors, subcontractors, successors, or assigns.
(3) Environmental conditions existing at the Site prior to entry by
RCC onto the Site; provided that this Section shall not cover the
conduct of the Work by RCC under this Agreement or the
exacerbation of such environmental conditions by RCC.
39
(4) Natural Resources Damages except to the extent actions of RCC
cause or contribute to such damages.
(5) Any violation or fines imposed by regulatory agencies due to
delay of project implementation prior to execution of this
Agreement.
C. Joint Act or Omission. In the event a claim for which indemnification
----------------------
is sought involves the joint action and/or omission of Kreisler and
RCC or those for whom either is responsible under this Agreement, then
it is the Parties' desire and intent that each Party be responsible to
the extent of its own act or omission and that neither Party be
responsible for the other's act or omission.
D. Claim by Agent or Subcontractor. In the event of claims against any
--------------------------------
person or entity indemnified above by any direct or indirect agent or
employee of RCC, or its subcontractors, or of anyone for whose acts or
omissions RCC or its subcontractors may be liable, the indemnification
obligation under this Section shall not be limited by a limitation of
any amount or type of damages, compensation, or benefits payable to
said employee or agent contained in any worker's compensation acts,
disability benefit acts, or other employee benefit acts or in any
subcontract.
E. Claims by Landlord
------------------
RCC acknowledges that Landlord is the owner of the Facility and the
landlord of Kreisler under a lease for the Facility. Nothing herein
is intended to relieve RCC from liability, including liability under
any
40
indemnification, for harm to Landlord or the Facility caused by RCC's
acts or omissions.
F. Punitive Damages. Neither Party shall, as a result of the performance
-----------------
of the Work or this Agreement, be liable to the other, whether in
contract (including indemnification hereunder), tort, or otherwise,
for punitive damages, and each Party hereby waives any statutory
rights under law to assert or recover same.
G. Consequential Damages. With respect to any legal proceeding or
----------------------
dispute between the Parties, neither Party will be held liable to the
other for consequential, special or incidental damages of any kind,
regardless of how caused or the theory on which asserted.
23. Force Majeure
-------------
A. Force Majeure Event. Neither Party shall be deemed in default or
--------------------
breach of this Agreement to the extent that any delay or other failure
to perform its obligations as required pursuant to the Agreement
results without its fault or negligence from an event of "Force
Majeure." For purposes of this Agreement, the term "Force Majeure"
shall be defined as follows: any event arising from causes beyond the
reasonable control of the Parties (other than a Party's lack of or
inability to obtain funds to fulfill its obligations or undertakings
under this Agreement) that is not foreseeable, that delays the
performance of any obligation arising under this Agreement, including,
acts of God, labor disputes, strikes, vandalism,
41
fires, floods, or weather conditions which would prevent or impair the
performance of the Work. Upon the occurrence of any event claimed by a
Party to be Force Majeure, the claiming Party shall notify the other
Party promptly of the occurrence of such event, followed by written
notification thereof given within three (3) calendar days after the
date the claiming Party discovered or should have discovered the event
of Force Majeure has occurred. The written notification shall contain
any information which may be required to be disclosed to an applicable
governmental authority under any Applicable Environmental Laws or
administrative or court order affecting the Work. Failure to notify
the other Party either orally or in writing in accordance with this
Section shall constitute a waiver of such claim of Force Majeure,
provided, however, no modification of the Work shall be made unless
and until written notice is provided. If the Parties cannot agree that
the reason for delay or failure of performance is a Force Majeure
event, the Parties shall submit such issue to arbitration in
accordance with Section hereof. In no event shall any event of Force
Majeure relieve either Party of any obligation hereunder other than to
extend the time of performance required of such Party. The Party
claiming a Force Majeure event shall use its best efforts,
notwithstanding the event, to mitigate its effects on the performance
of its obligations.
42
24. Health and Safety Compliance
----------------------------
A. Health and Safety. RCC shall take reasonable precautions to
------------------
protect the Site, any off-site property and any persons,
including its employees from damage, injury or illness arising
out of the performance of the Work. RCC shall comply with all
applicable federal, state, and local applicable health and safety
laws, including the Occupational Safety and Health Act of 1970
(84 U.S. Statutes 1590), as amended, and regulations thereunder,
and RCC warrants the compliance therewith of materials,
equipment, and facilities, whether temporary or permanent,
furnished by RCC in connection with the performance of the Work.
RCC shall insure that its employees are properly trained,
registered and certified, as required by applicable laws,
including but not limited to the Applicable Environmental Laws or
as otherwise required to safely and properly perform the Work.
B. RCC shall appoint an individual at the Site who shall act as
RCC's designated safety representative. RCC shall immediately
report all accidents and injures at the Site to Kreisler's
Authorized Representative, who shall also receive copies of any
reports filed with public authorities as a result of any accident
or injury.
If Kreisler or its authorized representative reasonably
deems any part of the Work unsafe, Kreisler, without assuming
43
liability for RCC's Safety and Health Program, may require RCC to
take corrective actions satisfactory to Kreisler and/or to stop
performance of the Work. If RCC fails to take appropriate
actions, Kreisler may perform them and reduce the Contract Price
accordingly. No adjustment in Contract Price or Completion Date
shall be permitted for compliance with Kreisler's reasonable
requests under this Section.
25. Confidentiality, Records Retention and Reporting
------------------------------------------------
A. Treatment of Confidential Information.
--------------------------------------
1. RCC shall treat as confidential any information marked or
designated as confidential or proprietary by Kreisler, which shall
not include publicly available information. Such information shall
not be disclosed to anyone other than Kreisler or its Authorized
Representative, except for:
(1) Disclosures to governmental authorities required for
performing the Work;
(2) Disclosure to RCC subcontractors for the purpose of
implementing the Work;
(3) Disclosure to RCC's auditors, counsel and lenders.
This Section shall survive termination or completion of this Agreement
for a period of 5 years. RCC shall have its successors, auditors,
counsel lenders and subcontractors execute a Confidentiality Agreement
44
satisfactory to Kreisler prior to disclosing any confidential
information to them and shall submit any information required by
governmental authorities under a claim of confidentiality. To the
extent such disclosure is mandated by law, RCC shall give Kreisler the
right to exhaust all challenges to the disclosure, prior to disclosing
the information. To the extent the challenges to the disclosure
involve reasonable additional expenses to RCC for costs of testimony
and assistance of counsel, such costs shall promptly be reimbursed by
Kreisler, as applicable.
2. Kreisler shall have the right to disclose documents and
information (including financial information of RCC) related to
the Work to actual and prospective lenders, buyers, investors,
insurance companies, Landlord and subtenants of Kreisler. Kreisler
shall not disclose confidential or proprietary information of RCC
which was marked or designated confidential or proprietary and
which is not publicly available without RCC's prior written
approval which RCC shall not unreasonably withhold.
B. Use of Project Information. RCC agrees that any promotional material
---------------------------
disseminated in the course of its business may not disclose the name
of Kreisler or Landlord or identify the specific Project location.
RCC agrees further that any statement of qualifications submitted to
any third party in connection with potential projects or business
relationships shall disguise the Project in such a manner that its
location and Kreisler's identity cannot
45
be ascertained or determined. Kreisler can, in Kreisler's sole and
absolute discretion, allow RCC to identify the location of the Project
and/or the identification of Kreisler in such materials.
26. Claims
------
A. Notice of Claim. Any money claim or matter in dispute asserted by a
----------------
Party pursuant to this Agreement must be in writing, must set forth
the facts upon which it is based, and except as expressly provided to
the contrary herein, must be received by the other Party at least
thirty (30) calendar days prior to the filing of any demand for
arbitration involving such claim or dispute. The Parties agree that
such notice shall be a jurisdictional prerequisite to arbitration. The
Parties shall consider the use of mediation and any other form of
Alternative Dispute Resolution prior to proceeding to Arbitration.
B. Arbitration of Disputes. Claims or matters in dispute between the
------------------------
Parties arising out of or relating to this Agreement during the
pendency of this Agreement or the Work shall be decided by binding
arbitration under the Commercial Arbitration Rules of the American
Arbitration Association, except to the extent modified herein. For any
hearing conducted in the arbitration, the parties agree to use one
arbitrator, and not exceed twenty-four (24) hours of hearing time (12
hours each) regardless of the complexity of the claim or matter in
dispute. No arbitration arising out of or relating to this Agreement
or the Work shall include, by consolidation
46
or joinder or in any other manner, any additional person not a Party
hereto, except by written consent signed by the Parties and any other
person sought to be joined. Consent to arbitration involving an
additional person or persons shall not constitute consent to
arbitration of a dispute not described or with a person not named
therein. This provision shall be specifically enforceable in any court
of competent jurisdiction. Notice of demand for arbitration shall be
filed in writing with the other Party. The demand for arbitration
shall be made within a reasonable time after the written notice of
claim or matter in dispute is made. In no event shall the demand for
arbitration be made after the date when the applicable statute of
limitations would bar institution of a legal or equitable proceeding
based on such claim or matter in dispute. However, once a claim is
made, the statute of limitations shall be tolled during the thirty
(30) day period from the time the claim is filed until the demand for
arbitration is filed. The award rendered by the arbitrator shall be
final, and judgment may be entered upon it in accordance with
applicable law in any court having jurisdiction. Unless otherwise
agreed in writing, RCC shall carry on the Work and maintain its
progress during any claim filing and arbitration proceedings, and RCC
shall be entitled to continue to receive undisputed payments in
accordance with this Agreement.
This Section shall survive Project Completion or termination of
this Agreement. Notwithstanding anything to the contrary in this
Section,
47
third party actions commenced against either Party that do not result
in consolidation or joinder are excepted from the requirements of this
Section.
27. Notices
-------
All notices and other communications required to be made under this
Agreement shall be made by hand delivery or by overnight mail and shall be
deemed to have been made as of the time and date of receipt. All such
notices and communications from RCC to Kreisler shall be addressed for
delivery to:
Kreisler Manufacturing Corporation
000 Xxx Xxxxx Xxxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx
Attn.: Xx. Xxxxx Xxxxx
All such notices and communications from Kreisler to RCC shall be addressed
for delivery to:
Resource Control Corporation
X.X. Xxx 000
Xxxxxxxx, Xxx Xxxxxx 00000
Attn.: Xxxxxxx X. Xxx
Any Party may change its designation of addressee or address upon written
notice to all other entities listed in this Section.
28. Miscellaneous
-------------
A. Entire Agreement. This Agreement represents the final embodiment of
-----------------
the Parties' intentions and understandings with respect to the subject
matter hereof. It supersedes any prior understandings, whether
written or oral, or of any description whatsoever.
48
B. Modification. No modification of this Agreement shall be binding upon
-------------
either Party except by a written instrument executed by both Parties.
C. Successors and Assigns. This Agreement shall be binding upon and
-----------------------
inure to the benefit of Kreisler, RCC, and each of their respective
successors and assigns (including, but not limited to, any lender of
Kreisler that succeeds to the interest of Kreisler and any purchaser
of substantially all of Kreisler's assets). RCC shall be responsible
for its representations, warranties, duties, obligations, and
responsibilities under the Agreement. Notwithstanding anything to the
contrary contained herein, RCC may not assign its rights or
obligations under this Agreement without the prior written consent of
Kreisler, which consent may be denied for any or no reason whatsoever.
D. Governing Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of New Jersey.
E. Captions and Headings. The captions and headings throughout this
----------------------
Agreement are for convenience and reference only, and the words
contained therein shall in no way be held or deemed to define, limit,
describe, modify, or add to the interpretation, construction, or
meaning of any provision of or scope or intent of this Agreement.
F. Severability. If any provision of this Agreement, or application
-------------
thereof to any person or circumstance, shall to any extent be
determined to be invalid, then such provision shall be modified, if
possible, to fulfill the
49
intent of the Parties as reflected in the original provision. The
remainder of this Agreement, or the application of such provision to
persons or circumstances other than those as to which it is held
invalid, shall not be affected thereby, and each provision of this
Agreement shall be valid and enforced to the fullest extent permitted
by law.
G. No Waiver. No waiver by either Party of any default by the other
----------
Party in the performance of any provision of this Agreement shall
operate as or be construed as a waiver of any future default, whether
like or different in character.
H. Counterparts. This Agreement may be executed in any number of
-------------
counterparts, all of which together shall constitute one original
Agreement.
I. Rule of Construction. The Parties hereto acknowledge that they each
---------------------
enter into this Agreement after having had an opportunity for thorough
review by, and on advice of, their respective legal counsel. The
judicial rule of construction requiring or allowing an instrument to
be construed to the detriment of or against the interests of the maker
thereof shall not apply to this Agreement.
J. Attorneys Fees. In the event of any dispute between the Parties
---------------
hereto not involving third party claims to which the indemnity
applies, the Prevailing Party in such dispute shall be entitled to
recover from the other reasonable attorneys fees, disbursements, and
costs incurred directly in connection with such dispute and the
resolution thereof. The "Prevailing Party," for
50
purposes of this Agreement, shall be deemed to be the Party which
obtains substantially all of the result sought, whether by dismissal,
award or judgment. In no event shall a Party bringing any claim,
demand , arbitration or suit for monetary damages be entitled to
recover attorneys fees where any final award or judgment does not
exceed a bona-fide offer of settlement or judgment made by the other
Party.
K. Survival
--------
The following Sections shall survive Termination or Expiration of this
Agreement: Section 15 Insurance, Section 21, Indemnitees, Section 24,
Confidentiality, Records Retention and Reporting, Section 7C,
Successors and Assigns.
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Executed by the undersigned duly authorized representatives to be
effective as of the Effective Date set forth above.
RCC, Inc.
By:___________________________________
Title: President
----------
Date:_________________________________
Kreisler
By:___________________________________
Title:________________________________
Date:_________________________________
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