EXHIBIT 10.14
SUPPLY AND SERVICE AGREEMENT
BETWEEN
THE CITY OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL PROTECTION
AND
NEW YORK ORGANIC FERTILIZER COMPANY
CONTENTS
DESCRIPTION PAGE
----------- ----
PREAMBLE ............................................................. 1
ARTICLE 1 - THE CONTRACT ............................................. 2
1.1 DEFINITIONS ............................................ 2
ARTICLE 2 - STATEMENT AND CHARACTER OF THE WORK ...................... 7
2.1 STATEMENT OF WORK ...................................... 7
2.2 RIGHT TO KNOW .......................................... 7
ARTICLE 3 - COMMENCEMENT OF WORK AND DELAY ........................... 8
3.1 CONDITIONS PRECEDENT; SATISFACTION OF CONDITIONS ....... 8
3.2 TERM ................................................... 10
3.3 PROCUREMENT, PERMITTING AND TRAINING PERIOD ............ 10
3.4 PROGRESS SCHEDULE ...................................... 10
3.5 REQUEST FOR INFORMATION OR APPROVAL .................... 11
3.6 NOTICE OF CONDITIONS CAUSING DELAY ..................... 11
3.7 COORDINATION WITH OTHER CONTRACTORS .................... 12
ARTICLE 4 - PAYMENT .................................................. 14
4.1 PRICING STRUCTURE ...................................... 14
4.2 TERMS OF PAYMENT ....................................... 15
4.3 INVOICES ............................................... 15
4.4 AUDIT .................................................. 16
4.5 CITY TAX EXEMPTION ..................................... 16
ARTICLE 5 - LIABILITY OF CONTRACTOR .................................. 17
5.1 GENERAL LIABILITY ...................................... 17
5.2 PROTECTION OF CITY PROPERTY ............................ 17
5.3 INFRINGEMENTS .......................................... 18
5.4 INDEMNIFICATION ........................................ 18
ARTICLE 6 - BONDS, INSURANCE & DAMAGES; DEMONSTRATION OF READINESS ... 19
6.1 PERFORMANCE AND PAYMENT BONDS .......................... 19
6.2 INSURANCE .............................................. 20
6.3 LIQUIDATED DAMAGES ..................................... 20
6.4 DEMONSTRATION OF READINESS ............................. 21
ARTICLE 7 - PROVISIONS RELATING TO LABOR ............................. 24
7.1 SUPERVISION BY CONTRACTOR .............................. 24
7.2 PROHIBITED ACTS ........................................ 24
7.3 NOTICE OF LABOR DISPUTES ............................... 24
7.4 MINIMUM WAGES AND WORKING CONDITIONS ................... 24
ARTICLE 8 - BOOKS AND RECORDS ........................................ 27
8.1 MAINTENANCE ............................................ 27
8.2 RETENTION OF RECORDS ................................... 27
8.3 NO REMOVAL OF RECORDS FROM PREMISES .................... 27
8.4 AUDIT BY THE DEPARTMENT AND THE COMPTROLLER ............ 27
ARTICLE 9 - REPRESENTATIONS AND WARRANTIES ........................... 29
9.1 PROCUREMENT OF AGREEMENT ............................... 29
9.2 CONFLICT OF INTEREST ................................... 29
9.3 FAIR PRACTICES ......................................... 29
9.4 WARRANTIES AND REPRESENTATIONS CONCERNING THE WORK ..... 30
ARTICLE 10 - COVENANTS OF THE CONTRACTOR ............................. 32
10.1 EMPLOYEES .............................................. 32
10.2 INDEPENDENT CONTRACTOR STATUS .......................... 32
10.3 CONFIDENTIALITY ........................................ 32
10.4 COMPLIANCE WITH LAW AND CHANGE IN LAW .................. 32
10.5 EMPLOYMENT PRACTICES ................................... 33
10.6 INVESTIGATION CLAUSE ................................... 33
10.7 ASSIGNMENT ............................................. 36
10.8 SUBCONTRACTING ......................................... 36
10.9 PUBLICITY .............................................. 37
10.10 PARTICIPATION IN AN INTERNATIONAL BOYCOTT .............. 37
10.11 INVENTIONS, PATENTS AND COPYRIGHTS ..................... 38
Table of Contents -i-
10.12 ANTI-TRUST .................................................... 38
10.13 POLITICAL ACTIVITY ............................................ 38
10.14 CLEAN AIR AND NOISE CONTROL PROVISIONS ........................ 39
ARTICLE 11 - DEDICATED SERVICES ............................................. 40
ARTICLE 12 - TERMINATION AND DEFAULT ........................................ 41
12.1 TERMINATION FOR CONVENIENCE ................................... 41
12.2 DEFAULT ....................................................... 42
12.3 TERMINATION FOR CONTRACTOR EVENT OF DEFAULT ................... 43
12.4 CONTRACTOR LIABILITY FOR DAMAGES .............................. 43
12.5 RIGHTS AND REMEDIES ........................................... 43
ARTICLE 13 - MISCELLANEOUS .................................................. 44
13.1 CHOICE OF LAW, CONSENT TO JURISDICTION AND VENUE .............. 44
13.2 GENERAL RELEASE ............................................... 45
13.3 CLAIMS AND ACTIONS THEREON .................................... 45
13.4 NO ESTOPPEL ................................................... 45
13.5 WAIVER ........................................................ 46
13.6 NOTICE ........................................................ 46
13.7 ALL LEGAL PROVISIONS DEEMED INCLUDED .......................... 46
13.8 SEVERABILITY .................................................. 47
13.9 MODIFICATION .................................................. 47
13.10 ARTICLE, SECTION AND PARAGRAPH HEADINGS ....................... 47
13.11 INSPECTION AT SITE ............................................ 47
ARTICLE 14 - OCCURRENCE OF FORCE MAJEURE .................................... 48
14.1 RESTORATION OF SERVICE ........................................ 48
14.2 DELAYS OR REDUCTION IN PERFORMANCE OF THE WORK ................ 49
14.3 REDUCTION OF COST DURING FORCE MAJEURE ........................ 50
14.4 DISPUTE AS TO OCCURRENCE OF A FORCE MAJEURE ................... 50
ARTICLE 15 - APPROVALS ...................................................... 51
ARTICLE 16 - CONTRACT CHANGES, DISPUTED WORK AND RESOLUTION ................. 52
16.1 CONTRACT CHANGES .............................................. 52
16.2 CHANGES IN WORK ............................................... 52
16.3 PRICE REVIEW CRITERIA ......................................... 53
16.4 DISPUTED WORK, DETERMINATION OR ORDER ......................... 53
16.5 PERFORMANCE OF EXTRA OR DISPUTED WORK ......................... 55
16.6 RESOLUTION .................................................... 56
ARTICLE 17 - ENTIRE AGREEMENT ............................................... 61
SIGNATURES .................................................................. 62
ACKNOWLEDGMENTS; PROCUREMENT AUTHORITY ...................................... 63
APPROPRIATION: COMMISSIONER'S CERTIFICATE; COMPTROLLER'S CERTIFICATE ........ 64
PERFORMANCE & PAYMENT BONDS; ACKNOWLEDGMENTS OF PRINCIPALS
GENERAL CONDITIONS - SCHEDULE "A" - INSURANCE REQUIREMENTS & LIQUIDATED DAMAGES
Table of Contents -ii-
THE CITY OF
NEW YORK
DEPARTMENT OF ENVIRONMENTAL PROTECTION
----------
SUPPLY AND SERVICE AGREEMENT
----------
THIS AGREEMENT, made and entered into as of this 21st day of October, 1997,
by and between THE CITY OF
NEW YORK ("City"), acting by and through the
Commissioner of the Department of Environmental Protection of the City of
New
York, and
NEW YORK ORGANIC FERTILIZER COMPANY, said Contractor having its
principal office at 0000 XXX XXXXX XXX., XXXXX, XX 00000.
PREAMBLE
WHEREAS, pursuant to the Marine Protection, Research and Sanctuaries Act (33
U.S.C. Section 1401 et seq.), as amended by the Ocean Dumping Ban Act of 1988,
the City entered into a Consent Decree and Enforcement Agreement ("Consent
Decree") with the United States Environmental Protection Agency and the
New York
State Department of Environmental Conservation, which obligated the City to
phase out and cease ocean disposal of its sewage sludge; and
WHEREAS, in order to meet the terms of the Consent Decree, the City adopted a
Biosolids Management Plan including an interim plan (under which the City
operates dewatering facilities and contracted for management of the sewage
Biosolids produced by such dewatering facilities) and a Long-term plan, which
shall be fully operational by June 30, 1998; and
WHEREAS, the City issued a request for proposals to manage the Biosolids
produced at the City's dewatering facilities under the Long-term Plan; and
WHEREAS, the City selected the Contractor to manage certain portions of the
City's Biosolids; and
WHEREAS, the Consent Decree provides that the City shall incur substantial fines
if it does not commence the Long-term Plan by July 1, 1998; and
WHEREAS, in order to enable the Contractor to provide such services, it is
required that the Contractor design, construct, acquire, operate and maintain
the Facilities; and
WHEREAS, the parties intend and agree that the Facilities shall be owned,
operated and controlled by the Contractor and not by the City; and
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants hereinafter set forth and subject to all of the terms and conditions
hereof, the parties hereto do hereby agree as follows:
1
ARTICLE 1 - THE CONTRACT
Except for titles, subtitles, headings, running headlines, and tables of
contents (all of which are printed herein merely for convenience) the following,
except for such portions thereof as may be specifically excluded, shall be
deemed to be part of this contract:
1. The
Supply and Service Agreement.
2. The Annexed Budget Director's Certificate, or Mayor's Certificate.
3. Annexed Exhibits A - G.
4. The Request for Proposals for Long-term Biosolids Management Services
(RFP), including Appendices A through E.
5. The proposal submitted by the Contractor pursuant to the RFP
6. All provisions required by law to be inserted in this contract whether
actually inserted or not.
7. Performance and Payment Bonds.
8. Notice to Proceed.
9. Schedule A (Insurance and Performance Bonding Requirements).
10. Rider 1- Equal Employment Opportunity.
11. General Provisions - XxxXxxxx Principles; VENDEX; Tax Affirmation Form.
1.1 DEFINITIONS
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:
"ACTIVE COMMITMENT QUANTITY" shall mean the maximum quantity of Biosolids based
on wet tons that the Contractor is required to accept, transport, and process
into a Biosolids product that shall be marketed and distributed to an
end-user(s) or end-use site(s) for beneficial application to the land on an
average daily basis over a monthly period, as more particularly set forth in
Exhibit A.
"AGREEMENT" shall mean this Contract or Contract Document.
"AGENCY" shall mean a city, county, borough or other office, position,
department, division, bureau, board or a corporation, institution or agency of
government, the expenses of which are paid in whole or in part from or through
the City treasury.
"BIOSOLIDS" shall mean the dewatered sewage sludge generated and processed from
sewage by the wastewater treatment plants listed in Exhibit A hereof.
"BIOSOLIDS MANAGEMENT PLAN" shall mean the plan for removing, transporting, and
processing Biosolids into a Biosolids Product and transporting, marketing and
distributing the Biosolids Product to an end-user(s) or end-use site(s) for
beneficial agricultural, horticultural or silvicultural land application or land
reclamation purposes. Such plan will be a detailed submittal in accordance with
published State and
2
Federal agency regulations and guidelines, and must be approved by the
appropriate agencies prior to performance of the Work herein.
"CITY" shall mean the City of
New York.
"BIOSOLIDS PRODUCT" shall mean a product derived from NYC Biosolids using a
proven Biosolids processing technology that (i) is Class A with respect to
pathogens in accordance with USEPA 40 CFR Part 503 regulations, (ii) complies
with applicable regulations of the USEPA and State regulatory agencies for
maximum allowable pollutant concentration limits in Biosolids and products
derived from Biosolids, and (iii) is suitable for land application under
applicable regulations of the USEPA and State regulatory agencies.
"COMMISSIONER" shall mean the Commissioner of the Department of Environmental
Protection of the City of
New York, or his or her duly authorized representative
designated in writing by the Commissioner.
"COMPTROLLER" shall mean the Comptroller of the City of
New York.
"CONTAMINATED BIOSOLIDS" shall mean Biosolids which are classified as Hazardous
Waste.
"CONTRACT" or "CONTRACT DOCUMENTS" shall mean each of the various parts of the
contract referred to in Article 1 hereof, both as a whole and severally.
"CONTRACTOR" shall mean New York Organic Fertilizer Company (NYOFCO) [a general
partnership of New York corporations] and its successors and assigns, and any
person, firm or corporation who or which shall at any time be substituted in the
place of the Contractor under this contract.
"CPI" shall mean the U.S. City average Consumer Price Index of Retail Goods and
Services for all urban consumers (CPI-U - All Urban Consumers), as presently
published by the United States Department of Labor, Bureau of Labor Statistics,
or if such index be discontinued, any substitute index mutually agreed upon by
the parties hereto.
"DEMONSTRATION OF READINESS" shall mean those certifications required by the
City for the Contractor to demonstrate that it can meet all performance
requirements of the Agreement, as described in Article 6.
"DEPARTMENT" shall mean the Department of Environmental Protection of the City
of New York acting by and through the Commissioner thereof, or his or her duly
authorized representative.
"FACILITY" and "FACILITIES" shall mean those structures, equipment and systems
put in place by Contractor in support of Biosolids and Biosolids Product
transportation, processing, storage, marketing and distribution services to be
provided under this Agreement.
"FORCE MAJEURE" shall mean events or conditions beyond the control of the
Contractor which prevent the Contractor from fulfilling its obligations, in
whole or in part, under this Agreement and which are not the result of
3
willful or negligent action or a lack of reasonable diligence. Such events or
conditions may include but are not limited to:
a) an act of God, epidemic, landslide, lightning, earthquake,
flood, fire, explosion, storm or similar casualty, an act of a
public enemy, war, blockade, insurrection, riot, general
arrest, or restraint of government or people, civil
disturbance or any similar occurrence;
b) interference by municipal, state, federal, or other
governmental agency or entities or expropriation or
confiscation of facilities (assuming compliance by the
Contractor with all applicable laws and regulations);
c) the formal action, order and/or judgment of any federal, state
or local court, if it is not also the result of willful or
negligent action or a lack of reasonable diligence of the
Contractor; or
d) a strike or similar industrial or labor action, provided that
the Contractor shall use best efforts to continue to perform
its obligations hereunder, which efforts shall include but not
be limited to, engaging other or different subcontractors,
securing alternate sources of labor and taking all necessary
steps to resolve the labor dispute.
"HAZARDOUS WASTE" shall mean (i) wastes which qualify as hazardous waste under
applicable federal and state laws, rules or regulations including but not
limited to the Resource Conservation and Recovery Act, the Toxic Substances
Control Act, and the Comprehensive Environmental Response, Compensation and
Liability Act, and (ii) any materials mixed with or otherwise contaminated by
such wastes so as to render such materials hazardous waste under such applicable
Law.
"INTERFACE POINT" shall mean the location(s) at the City's dewatering facilities
where the Contractor is to accept Biosolids hereunder.
"LAW" or "LAWS" shall mean the Constitution of the State of New York, the New
York City Charter, the New York City Administrative Code, a statute of the
United States or of the State of New York, a local law of the City of New York,
and any applicable federal, state or local ordinance, rule, law or regulation
having the force of law.
"LUMP SUM PRICE(S)" shall mean payments due to Contractor for the actual and
reasonable costs of satisfactorily completed work under the tasks noted in
paragraph 2 of Section 4.1 hereof, as such Lump Sum items are set forth or
referenced in Section A of Exhibit E (as limited therein).
"MATERIALMAN" shall mean any person, firm or corporation, other than employees
of the Contractor, who or which contracts with the Contractor, or any
subcontractor to fabricate or deliver, or who actually fabricates or delivers,
materials or equipment to be used in furtherance of The Work.
"OTHER CONTRACTORS" shall mean any contractor (other than the Contractor or its
subcontractors) who has a contract with the City for work on or in the vicinity
of the Job Site.
4
"OUT-OF-SPECIFICATION BIOSOLIDS" shall mean all Biosolids which are neither
Specification Biosolids nor Contaminated Biosolids.
"PAYMENT SCHEDULE" shall mean the method used to calculate the payments due the
Contractor as defined in Article 4 hereof.
"PLANT SITE" shall mean any or all of the City's wastewater treatment plants
(listed in Exhibit A) from which the Contractor shall accept Biosolids to be
transported and processed into a Biosolids Product for marketing and
distribution for beneficial land application or land reclamation.
"PPI" shall mean the Producer Price Index for Motor Freight Transportation and
Warehousing, as presently published monthly by the United States Department of
Labor, Bureau of Labor Statistics, or if such index be discontinued, any
substitute index mutually agreed upon by the parties hereto.
"PRIME RATE" shall mean the prime commercial lending rate from time to time as
published in The Wall Street Journal; or if such rate be discontinued or fail to
have the import or meaning heretofore understood by the parties, any substitute
index mutually agreed upon by the parties hereto.
"PROGRAM MANAGER" shall mean the representative of the Commissioner duly
designated by him or her to be his representative in respect of the Work.
"REQUEST FOR PAYMENT" shall mean the formal monthly request for payment
submitted by contractor to the City in the form set forth in Exhibit D, or such
other form as the Commissioner may reasonably request.
"REQUEST FOR PROPOSALS" or "RFP" shall mean the solicitation document and all
provisions, terms and requirements set forth therein by the City for biosolids
processing services as described herein.
"SERVICE DATE" shall mean the date, as specified in Article 3 hereof, upon which
the Contractor shall be initially required to receive Biosolids for
transportation and processing into a Biosolids Product for marketing and
distribution for beneficial land application or reclamation with the ability to
provide these services on a continuing basis following successful completion of
the Demonstration of Readiness.
"SPECIFICATION BIOSOLIDS" shall mean all Biosolids which (i) contains at least
twenty percent (20%) solids, (ii) is stabilized or digested wastewater treatment
Biosolids, (iii) is not Contaminated or Out-of-Specification Biosolids, and (iv)
complies with all applicable Federal and State regulations for land application
(i.e., maximum pollutant concentration limits).
"SUBCONTRACTOR" shall mean any person, firm or corporation, other than employees
of the Contractor, who or which contracts with the Contractor or its
subcontractors to furnish, or actually furnishes labor, or labor and materials,
or labor and equipment, in furtherance of the work.
5
"THERMAL DRYING" shall mean a controlled, physical process whereby thermal
energy is added to Biosolids producing a dry, stable Biosolids Product.
"TON" shall mean two thousand Avoirdupois pounds.
"UNIT PRICE" shall mean the unit rates charged by the Contractor for the
transportation and processing of Biosolids into a Biosolids Product that shall
be marketed and distributed to an end-user(s) or end-use site(s) for beneficial
land application or land reclamation purposes, as such unit rates are set forth
in Section 4.1 and Exhibit E.
"WET TON" shall mean a Ton of Biosolids including all moisture contained
therein.
"THE WORK" or "WORK" shall mean all services and any other things required to be
performed, furnished and done by the Contractor under this Agreement.
6
ARTICLE 2 - STATEMENT AND CHARACTER OF THE WORK
2.1 STATEMENT OF WORK
The Contractor shall furnish all labor, materials and services required to
perform all Work in strict accordance with this Contract. The Work includes but
is not limited to the transportation of Biosolids from the selected Water
Pollution Control Plants in New York City to the Contractor's Biosolids
processing facility, processing the Biosolids into a stable Biosolids Product,
and storing, marketing, and distributing the Biosolids Product to an end-user(s)
or end-use site(s) where it will be beneficially applied to the land for land
application or reclamation purposes as described in the Contractor's response to
the RFP, and as described in Exhibit A hereof.
Unless otherwise expressly provided in the Contract, the Work must be performed
in accordance with high standards of modern practice, and with materials,
equipment and workmanship of state-of-the-art quality, to the reasonable
satisfaction of the Commissioner.
2.2 RIGHT TO KNOW
Where applicable, as per the NYS "Right to Know" law and the Federal OSHA Hazard
Communication standard 29 CFR 1200, Contractors providing services to the NYC
Department of Environmental Protection are required to submit appropriate
Manufacturers Safety Data Sheets (MSDSs) when using chemically based substances
on DEP premises. Failure to provide the relevant MSDS may result in the
termination of this contract (with applicable penalties) subject to the notice
and cure provisions of Article 12.2.
Any questions regarding this regulation may be directed to the authority listed
below for clarification:
BUREAU OF TOXIC SUBSTANCE ASSESSMENT
New York State Health Department
Xxxxx Xxxxxxxx, Xxxxxx Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
(000) 000-0000
7
ARTICLE 3 - COMMENCEMENT OF WORK AND DELAY
3.1 CONDITIONS PRECEDENT; SATISFACTION OF CONDITIONS
A. The obligations of the parties under this Agreement are subject to the
following conditions being satisfied or becoming satisfied by the
respective dates mentioned below:
(i) PERMITS. The Contractor shall have obtained approval of the
Biosolids Management Plan and shall have obtained all related and
required permits (including without limitation all required licenses,
certificates and other evidences of authorization) from the appropriate
federal, state and local regulatory agencies. In the event the
Contractor shall not have obtained all such permit(s) on or before
April 1, 1998 and satisfactorily demonstrated their receipt in
accordance with Section 3.1(B) below, then the City may at any time on
or after April 1, 1998 terminate this Contract upon THIRTY (30) DAYS
written notice to that effect. THE DEFAULT AND CURE PROVISIONS OF
SECTION 12.2 SHALL NOT APPLY TO SUCH TERMINATION OR NOTICE THEREOF. The
City shall have the right in its sole discretion to extend, for such
period or periods as it deems appropriate, the time for the Contractor
to obtain approval of the Biosolids Management Plan and/or the said
permit(s).
(ii) AGREEMENTS WITH LANDOWNERS. The Contractor shall have obtained
from the landowners and any of their lessees or agents all rights and
permissions, documented by appropriate instruments properly
acknowledged and recorded, to enter upon and use land for all purposes
necessary or desirable for the construction and/or operation of a
Biosolids Processing Facility and ancillary facilities and for the land
application of Biosolids Product in accordance with the Biosolids
Management Plan and this Agreement, including without limitation
transporting, unloading, and processing Biosolids into a Biosolids
Product, and storing, loading, marketing and distributing the Biosolids
Product to an end-user(s) or end-use site(s) for beneficial application
to the land. In the event the Contractor shall not have obtained all
such rights and permissions, suitably documented, on or before April 1,
1998 and satisfactorily demonstrated their receipt in accordance with
Section 3.1(B) below, then the City may at any time on or after April
1, 1998 terminate this Contract upon THIRTY (30) DAYS written notice to
that effect. The default and cure provisions of Section 12.2 shall not
apply to such termination or notice thereof. The City shall have the
right in its sole discretion to extend, for such period or periods as
it deems appropriate, the time for the Contractor to obtain said rights
and permissions.
B. The Contractor shall provide to the City, on or before March 1, 1998,
all such documentation as the City may require demonstrating to the
reasonable satisfaction of the Commissioner that all of the
requirements of the foregoing Section 3.1(A) have been complied with,
or if
8
not yet complied with, will be complied with on or before April 1,
1998. Such documentation shall include, but not be limited to, the
following:
(1) Copies of currently valid, existing permits from all
applicable regulatory agencies authorizing the transportation and
processing of NYC Biosolids specifically, from all eight (8) dewatering
facilities, and authorizing the storage, marketing, transportation and
distribution of Biosolids Product from the Contractor's Biosolids
Processing facility(ies) and ancillary facilities (e.g. storage/
transshipment, and/or distribution) to and end-user(s) or end-use
site(s) for beneficial application to the land. Such permits shall
indicate that they will remain in effect through and after July 1,
2000; and if any permit will expire prior to July 1, 2002, the
Contractor shall demonstrate to the City's satisfaction that there are
no impediments to timely renewal. Permits shall state the maximum
capacity of each Biosolids Processing Facility to accept NYC Biosolids
or else the Contractor shall provide letters from the applicable
regulatory agency verifying this maximum capacity.
(2) Copies of currently valid, existing permits from all
applicable regulatory agencies authorizing the application of NYC
Biosolids Product, generated at the Contractor's Biosolids processing
facility(ies) to each application location, if the Contractor
identifies said application locations as part of its Biosolids Product
marketing and distribution program. Such permits shall indicate that
they will remain in effect through and after July 1, 2000; and if any
permit will expire prior to July 1, 2002, Contractor shall demonstrate
to the City's satisfaction that there are no impediments to timely
renewal. Permits shall state the maximum capacity of each location to
accept NYC Biosolids Product or else the Contractor shall provide
letters from the applicable regulatory agency verifying this maximum
capacity.
(3) Documentation in the form of fully executed contracts or
other appropriate instruments properly acknowledged and recorded,
granting and providing all rights and permissions to enter upon and use
the land at each application location for all purposes necessary or
desirable for the application of Biosolids Product in the proposed
capacity, for the proposed periods of time, and in accordance with the
Biosolids Management Plan and this Agreement (including without
limitation transportation, unloading, loading, spreading, preparation
and treatment), if the Contractor identifies said application locations
as part of its Biosolids Product marketing and distribution program.
(4) Copies of valid, existing transportation permits
including, but not limited to, NYC Consumer Affairs and NYS Department
of Environmental Conservation Part 364 permits.
C. The Contractor shall act in good faith and with due diligence in
attempting to satisfy the conditions precedent set forth above. The
9
'Force Majeure' provisions of Article 14 shall not apply to the
Contractor's satisfaction of conditions precedent or other obligations
under this Subsection 3.1; and therefore: Except at the City's option
expressly confirmed by a writing signed by the Commissioner, ACCO or
Bureau Director, in no event shall the occurrence of a Force Majeure
event delay or set back the conditions precedent deadlines given in
Section 3.1(A). In the event any condition is not satisfied and the
Contract is terminated by written notice as set forth above, the
Contractor shall not seek or be entitled to reimbursement for any costs
incurred in the furtherance of this Agreement nor damages incurred by
its termination; provided, however, that this clause shall not preclude
payment under Item 1 only (but no other work whatsoever) in accordance
with the Contract provisions.
3.2 TERM
The term of this Agreement shall commence with execution of this Contract and
continue fifteen (15) years from the Service Date. The Service Date shall be no
later than July 1, 1998, unless extended at the discretion of the City as per
Section 3.1, above.
3.3 PROCUREMENT, PERMITTING AND TRAINING PERIOD
The procurement, permitting, public participation, public education,
environmental review and the training period shall commence with execution of
this Contract and continue through the Service Date to fifteen (15) years later.
During this period, Contractor shall perform those activities described in
Section 1 of Exhibit B hereof, in Sections I, II and III of the RFP, and the
approved Biosolids Management Plan; and shall also perform such other activities
included in the RFP or the proposal submitted by the Contractor as the City may
request.
The City reserves the right to review, inspect and approve all activities and
work performed, all permits and certifications secured, and all equipment
procured by the Contractor during the procurement, permitting and training
period.
3.4 PROGRESS SCHEDULE
To enable the work to be laid out and prosecuted in an orderly and expeditious
manner, the Contractor, within 30 days after the execution of this contract,
unless otherwise directed by the Program Manager, shall submit to him a proposed
progress schedule as called for in this Contract showing:
A. The anticipated time of commencement of services and completion of each
of the various operations to be performed under this contract; and
B. The sequence and inter-relationship of each of these operations with
10
the others and with those of other related contracts and subcontracts;
and
C. The estimated time required to obtain the necessary permits and for the
fabrication or delivery, or both, of all materials and equipment
required for the Work.
The proposed schedule shall be revised as directed by, and until finally
approved by, the Program Manager; and after such approval shall, subject to the
provisions of this Article, be strictly adhered to by the Contractor.
The Contractor shall submit monthly reports on progress to the Program Manager.
The City shall reserve the right to review and inspect all activities related to
the permitting and fabrication.
If the Contractor shall fail to adhere to the approved progress schedule, or to
the schedule as revised in accordance with this Article, he must promptly adopt
such other or additional means and methods as will make up for the time lost and
will assure commencement of services in accordance with such schedule.
3.5 REQUEST FOR INFORMATION OR APPROVAL
From time to time after Contract execution and as The Work progresses, the
Contractor must submit to the Program Manager a specific request in writing
setting forth clearly, completely and accurately each item of information or
approval which is required by the Contractor. The requests must state the latest
date upon which the information or approval is actually required by the
Contractor, and must be submitted sufficiently in advance thereof to allow the
Program Manager a reasonable time to act upon such submissions or any necessary
re-submissions thereof.
The Contractor shall not have any right to an extension of time on account of
delays due to its failure to submit requests for required information or
required approval(s) in accordance with the above provisions.
3.6 NOTICE OF CONDITIONS CAUSING DELAY
Within ten (10) working days after the Contractor has knowledge or should have
had knowledge of the commencement of any condition which is causing or may cause
delay in commencement of the Work, including any conditions affecting the
Contractor's ability to transport and process the Biosolids into a biosolids
product and/or store, market, transport and distribute the Biosolids Product to
an end-user(s) or end-use site(s) for beneficial land application purposes as of
the Service Date, the Contractor must notify the Program Manager in writing of
the effect, if any, of such condition upon the commencement of services.
Failure to comply with this requirement may, in the reasonable discretion of the
Commissioner, constitute a waiver by the Contractor of any and all claims it may
have for damages for delay arising therefrom.
11
3.7 COORDINATION WITH OTHER CONTRACTORS
During the progress of the work, other contractors may be engaged in performing
other work at or in the vicinity of the Plant Site. In that event, the
Contractor shall coordinate the work to be done hereunder with the work of such
other contractors in such manner as the Program Manager may direct.
If the Program Manager, in accordance with all applicable provisions of this
Agreement, shall determine that the Contractor is significantly failing to
coordinate his work with the work of other contractors as the Program Manager
has directed:
A. The Commissioner shall have the right to withhold any payments
otherwise due hereunder until the Program Manager's directions are
complied with by the Contractor, and
B. The Contractor shall indemnify and hold the City harmless from any and
all claims or judgments for damages and from costs and expenses to
which the City may be subjected or which it may suffer or incur by
reason of the Contractor's failure to comply with the Program Manager's
directions promptly; and
C. The Comptroller shall have the right to exercise the powers reserved in
Article 5 hereof with respect to any claims which may be made for
damages due to this Contractor's failure to comply with the Program
Manager's direction promptly.
If the Contractor notifies the Program Manager in writing that another
contractor at or in the vicinity of the Plant Site is failing to coordinate his
work with the work of his contract as directed, the Program Manager may issue
such directions to the other contractor with respect thereto as the Program
Manager deems appropriate. The City 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 Project Manager, or by
reason of another contractor's default in performance, it being understood that
the City does not guarantee the responsibility or continued efficiency of any
contractor.
Should the Contractor sustain any damage through any act or omission of any
other contractor having a contract with the City for the performance of work at
or in the vicinity of the Plant Site or of work which may be necessary to be
performed for the proper execution of the work to be performed hereunder or
through the willful or negligent act or omission of a subcontractor of such
contract, the Contractor shall have no claim against the City for such damage to
the extent such damage is not the fault of the City, but shall have a right to
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.
12
Should any other contractor having or who shall hereafter have a contract with
the City for the performance of work at the Plant Site sustain any damage
through the willful or negligent 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 damage and to
indemnify and hold the City harmless from all such claims to the extent of the
Contractor's negligence.
13
ARTICLE 4 - PAYMENT
4.1 PRICING STRUCTURE
The City agrees to pay and the Contractor agrees to accept, as full
consideration for the complete and satisfactory performance of all services
required herein, the Lump Sum Amounts for Items 1, 2, 3 and 4 and the Unit Price
as contained in Attachments X-x and B-2 of the Contractor's proposal and any
clarifications or amendments submitted pursuant to the RFP. The Payment Schedule
shall be increased or decreased only in accordance with Article 16, Changes in
the Work and as set forth in paragraph 4.5 and in Exhibit E.
It is agreed that the Lump Sum Price for Items 1, 2, 3 and 4 shall be based upon
the reasonable and actual cost of the work satisfactorily completed under such
items as described therein or in Sections II and III of the RFP and in
Attachment X-x of the RFP, and that neither markup nor profit shall be included
or payable by the City. The Lump Sum Price shall be deemed to include, but not
be limited to, the following items:
All labor, costs, expenses, fees, and overhead expended or incurred
under Tasks 1, 2, 3 and 4.
It is agreed that the Unit Price shall be based upon the total amount of
Biosolids accepted, transported and processed into that quantity of Biosolids
Product produced from a unit quantity of Biosolids, that can be marketed and
distributed to an end-user(s) or end-use site(s) for beneficial application to
the land, by the Contractor for the billing period. The Unit Price shall include
but not be limited to the following items after the Service Date:
1. Capital and Construction Costs (if applicable)
2. Vehicle Transportation Costs
3. Utility and Consumables Costs
4. Testing and Regulatory Fees
5. Variable Operations and Maintenance Costs (including labor)
6. Insurance and Bonding Costs
7. Fixed Operating and Maintenance Labor Costs
8. Operations Administration and Management Costs
9. Property Taxes
10. Fixed Operation and Maintenance Charges
11. Property Leases
12. Home Office Costs
13. Permits and Regulatory Fees
14. Fixed Transportation Leases
15. All Other Transportation Costs
16. Biosolids Product Marketing Costs
17. All overhead costs
18. Profit
19. Community outreach, public participation and education costs
as approved by the City
The initial Unit Price of $119.00 shall be escalated on an annual basis as set
forth in Exhibit E, beginning on July 1, 1999.
14
In the event that it is necessary or desirable to use, or the Contractor does
use, back-up capacity as described in Section II(G) of the RFP and in the
Proposal (including any contingency and/or siting plan[s] therein or which may
be approved by the City), it is understood and agreed that the Contractor shall
not be entitled to claim nor receive any additional compensation - i.e., that
the Unit Price shall not thereby be increased. It is further agreed that City
shall be entitled to appropriate credit if Contractor's actual and reasonable
cost of service is reduced by use of such back-up capacity.
4.2 TERMS OF PAYMENT
On or before the fifteenth day of each month, following the Order to Commence
Work, the Contractor shall submit to the Commissioner a single Request for
Payment for services provided during the previous calendar month in the form of
Exhibit D. Subject to the City's right to conduct a pre-payment audit, the City
shall duly process for payment each timely invoice pursuant to this Article 4.
Invoices received after the fifteenth day of a month shall be deemed received on
the fifteenth day of the following month. FAILURE OR INABILITY OF THE CONTRACTOR
TO PROVIDE SATISFACTORY SERVICE AS OF THE SCHEDULED SERVICE DATE SHALL GIVE THE
CITY THE RIGHT TO DEMAND AND RECEIVE REPAYMENT OF ALL SUMS PAID TO CONTRACTOR
UNDER LUMP SUM ITEMS 1 - 3 INCLUSIVE, IN ADDITION TO ANY AND ALL OTHER REMEDIES
OF CITY (INCLUDING BUT NOT LIMITED TO TERMINATION FOR CAUSE PURSUANT TO SECTION
12.2 HEREOF).
Time of payment will be governed by Rule 6-07 of the Rules of the Procurement
Policy Board; except that it is agreed that payments under Lump Sum Items 1 - 4
inclusive shall not be eligible for "prompt payment" interest, if any.
4.3 INVOICES
The Contractor shall submit numbered invoices (Request for Payment) in
accordance with the payment schedule established in Exhibit D. Such invoices
shall set forth the services for which payment is requested, and approval
thereof by the Department shall be a prerequisite to payment. Except for claims
arising under Section 7.4 hereof or as otherwise indicated in this Agreement,
Lump Sum Task and Unit Price payments shall be subject to such provisions for
set-off as may be set forth in this Agreement.
The parties agree that the Contractor may post an additional bond or other
adequate form of financial assurances satisfactory to the City equal to any
amount of payment being withheld or set off by the City pursuant to this
Agreement which is otherwise duly earned by the Contractor, at which time the
City agrees to promptly release to the Contractor such payment otherwise
withheld or set off.
15
4.4 AUDIT
The contract and all payments hereunder shall be subject to pre-payment audit by
the Department of Environmental Protection and post audit by the Comptroller of
the City in accordance with the New York City Charter and Administrative Code,
and the Rules of the NYC Procurement Policy Board.
4.5 CITY TAX EXEMPTION
The City of New York is exempt from the payment of any Federal, State and City
sales, compensating use or excise taxes. Accordingly, no payment shall be due to
the Contractor with respect to any such taxes or any other tax or taxes of any
jurisdiction.
16
ARTICLE 5 - LIABILITY OF CONTRACTOR
5.1 GENERAL LIABILITY
A. The Contractor shall be solely responsible for all physical injuries or
death to its agents, servants, or employees or to any other person and
for all damage to any property sustained during its operations and work
under this Agreement resulting from any act of omission or commission
or error in judgment of any of its officers, trustees, employees,
agents, servants, or independent contractors, and shall hold harmless
and indemnify the City from liability upon any and all claims for
damages including those on account of such injuries or death to any
such person or damages to property on account of neglect, fault or
default of the Contractor, its officers, trustees, employees, agents,
servants, or independent contractors. The Contractor shall be solely
responsible for the safety and protection of all of its employees
whether due to the negligence, fault or default of the Contractor or
not.
B. In the event that any claim is made or any action is brought against
the City arising out of negligence or careless acts of any employee of
the Contractor either within or without the scope of his employment, or
arising out of Contractor's negligent performance of this Agreement, or
any act included in paragraph A above then the City shall have the
right to withhold further payments hereunder for the purpose of set-off
in sufficient sums to cover the said claim or action. The rights and
remedies of the City provided for in this clause shall not be exclusive
and are in addition to any other rights and remedies provided by law or
this Agreement.
C. Notwithstanding any other provision of this Agreement, the Contractor
shall not be liable for damages, whether fines, penalties or fees,
which may be assessed against the City for violation of and under the
Consent Decree.
5.2 PROTECTION OF CITY PROPERTY
A. The Contractor assumes the risk of, and shall be responsible for any
loss or damage to City property including property and equipment leased
by the City, used in the performance of this Agreement, and caused,
either directly or indirectly, by the acts, conduct, omissions or lack
of good faith of the Contractor, its officers, managerial personnel,
employees, or any person, firm, company, agent or other entity engaged
by the Contractor as expert, consultant, specialist or subcontractor
hereunder.
B. In the event that any such City property is lost or damaged except for
normal wear and tear, or to the extent that such property is consumed
in the performance of this Agreement then the City shall have the right
to withhold further payments hereunder for the purpose of set-off in
sufficient sums to cover such loss or damage.
17
C. The Contractor agrees to indemnify the City and hold it harmless from
any and all liability or claims for damages due to any such loss or
damage to any such City property described in subsection A above. This
indemnification does not include losses, claims, expenses or damages
proximately caused by the negligent or willful misconduct of the City.
D. The rights and remedies of the City provided herein shall not be
exclusive and are in addition to any other rights and remedies provided
by law or by this Agreement.
5.3 INFRINGEMENTS
The Contractor shall be liable to the Department and hereby agrees to indemnify
and hold the City and the Department harmless for any damage or loss or expense
sustained by the Department from any infringement by the Contractor of any
copyright, trademark, patent or other rights of design, systems, drawings,
graphs, charts, specifications or printed matter furnished or used by the
Contractor in the performance of this Agreement.
5.4 INDEMNIFICATION
To the maximum extent permitted by law, each party covenants that it will
protect, indemnify, and hold the other harmless from and against all
liabilities, actions, damages, claims, demands, judgments, losses, costs,
expenses, suits or actions for personal injury to, or death of, any person or
persons, or loss or damage to property caused by the breach of such party of any
of its representations, warranties or agreements contained herein. Each party
shall promptly notify the other of the assertion of any claim against which such
other party is indemnified hereunder, shall give the other party the opportunity
to defend such claim, and shall not settle such claim without the approval of
the indemnifying party. These indemnification provisions are for the protection
of the City and the Contractor only and shall not establish, of themselves, any
liability to third parties.
18
ARTICLE 6 - BONDS, INSURANCE & DAMAGES; DEMONSTRATION OF READINESS
6.1 PERFORMANCE AND PAYMENT BONDS
A. Prior to or at the time of the execution of the Contract, the
Contractor must deliver to the City of New York executed bonds naming
the City of New York Department of Environmental Protection as obligee,
prepared on the forms attached to and made part of this Agreement, and
having as surety thereunder, such surety companies as are approved by
the City of New York and authorized to write surety in the State of New
York.
B. The bonds will secure, for successive one-year periods of operation,
Contractor's performance under this Agreement and shall provide
security for the payment of all persons performing labor or furnishing
materials in connection with this Contract.
C. Prior to the earlier of Service Date or July 1, 1998, each bond shall
be for the amount of $1,000,000 (one million dollars). Thereafter: (1)
Each bond shall initially, during the first year after Service Date or
July 1, 1998, be for the amount of sixty-five per cent (65%) of the
maximum annual compensation payable under the Contract [i.e., 0.65 X
(WT/D) X 365 X ($/WT)] and thus 0.65 X 825 X 365 X $119.00 =
$23,292,018.75; and, (2) Upon renewal, during the second and subsequent
years after Service Date or July 1, 1998, shall be for the amount of
sixty-five per cent (65%) of the Unit Price compensation paid to the
Contractor under this Contract for the previous one year period of
operations or of $2,500,000 (two million five hundred thousand
dollars), whichever is greater.
D. Contractor must furnish new bonds annually at least thirty (30) days
prior to the expiration date of the previous bond during the entire
term of this Contract. (The City may specify the required annual bond
amount [Section 6.1(C)] as an estimate based upon the previous year's
first 10 or 11 months of operation or other data.) Each successive bond
must satisfy the requirements set forth in A, B, and C above.
E. The obligation to furnish a successive bond for the next annual period
is not an obligation guaranteed by the surety.
F. The bonds shall not be cumulative in nature and shall be effective only
for the one year period of operations for which they are furnished.
G. In the event of default by the Contractor during the term of an annual
bond, the Surety shall be responsible for payment of a penal amount
only and not for completion of performance under the Contract.
H. The premiums for the bonds shall be paid by the Contractor.
I. In lieu of the required performance and payment bonds the Contractor
19
may deposit with the Comptroller money, or obligations of the City of
New York, a letter of credit in a form and through an institution
approved by the City of New York or such other financial security as
the Comptroller may deem appropriate. Such alternate security shall be
furnished in an amount equal to the required bond amount as determined
under C, above.
J. Failure to obtain any bond or furnish security as set forth above shall
constitute an event of default.
6.2 INSURANCE
Throughout the term of this Contract, the Contractor must effect and maintain
insurance of the kind and at the limits set forth in `GENERAL CONDITIONS
-- SCHEDULE "A" -- INSURANCE REQUIREMENTS & LIQUIDATED DAMAGES.' NOTE: Marine
coverages (shown by *) are "as applicable"; if there are no marine or other
operations involving such risks, an annual affidavit to that effect may be
provided.
6.3 LIQUIDATED DAMAGES
In view of the difficulty of accurately ascertaining the loss and damages which
the City will suffer by reason of delay or failure in the performance of the
Work hereunder, as a result of the fault or default of the Contractor, it is
hereby agreed that liquidated damages shall be due and payable to the City by
the Contractor as set forth herein. Such liquidated damages shall not be deemed
a penalty. Such liquidated damages may be assessed by the City as a result of
the Contractors' default whether or not the City exercises its rights to
terminate the Contractor for default.
The Contractor shall be liable to pay liquidated damages for failures to take
and accept Biosolids in accordance with this Contract on or after the Service
Date and for deficiencies in performance, provided such failures and
deficiencies are not caused by the City. For each day, or part thereof, that the
Contractor shall fail or refuse to take or accept Biosolids or otherwise not
fully perform its obligations in accordance with this Agreement, the Contractor
shall upon demand pay to the City as liquidated damages the amount of $150 per
Wet Ton of Biosolids not removed, transported and processed into that quantity
of Biosolids Product produced from a unit quantity of Biosolids, that shall be
marketed and distributed to an end-user(s) or end-use site(s) for beneficial
application to the land, as required hereunder.
The liquidated damages due to the City shall become due and payable at the
beginning of each month for the failure or deficiencies experienced by the City
in the previous month. The City may elect to have these damages deducted from
Lump Sum and Unit Price payments due the Contractor for services provided in
subsequent months, provided that the total damages are recovered by the City
within six months and any deferred deductions shall be subject to interest at
Prime Rate plus 2%. In case the amount which becomes due to the Contractor for
performance hereunder shall be less than the amount of damages payable to the
City, the
20
Contractor shall pay the difference upon demand by the City.
Liquidated Damages received hereunder are not intended to be nor shall they be
deemed either a partial or full waiver or discharge of the City's rights to
indemnification, or of the Contractor's obligations to indemnify the City, or of
any other remedies provided by contract or by Law. Liquidated Damages shall be
due and payable as set forth above even in the event of an abandonment of the
Work by the Contractor.
6.4 DEMONSTRATION OF READINESS
A. CERTIFICATION PROCEDURE
The Contractor agrees that the Work provided by the Contractor shall be
based upon receiving dewatered Biosolids in the quantities noted in
Appendix C of the RFP and as contained in the Contractor's proposal in
response to the RFP.
The Contractor shall provide documentation demonstrating that it can:
1) Receive, transport and process Biosolids into a Biosolids
Product that shall be marketed and distributed to an
end-user(s) or end-use site(s) for beneficial application to
the land at the throughput capacity required by this
Agreement, i.e., an average of 825 Wet Tons per day calculated
over a monthly period;
2) Operate within the various applicable permit conditions and
the approved Biosolids Management Plan submitted by the
Contractor in response to the RFP; and
3) Provide the contracted services over an extended period
without interruption.
No later than 120 days prior to the Service Date, the Contractor shall
submit to the City for approval a detailed Demonstration of Readiness
procedure. This procedure shall define the criteria to judge the
readiness of the Contractor, location of and equipment to be used for
the services related to this Agreement, and the procedures for
operation. The City shall review this procedure and notify Contractor
within 30 days of any exceptions taken with the submitted procedure.
City and Contractor shall meet to reconcile exceptions within 30 days
of receipt of City's exceptions and, upon reconciliation, the
procedures shall be approved by the City.
B. CONTRACTOR'S OBLIGATION
The Contractor shall be obligated to demonstrate its readiness for the
performance of its Work. Successful Demonstration of Readiness will
establish the Service Date. The demonstration shall be conducted in
accordance with the requirements of this Agreement and shall
demonstrate compliance with the contracted Biosolids Active Commitment
Quantity and regulatory permits and licenses.
21
C. READINESS
The Demonstration of Readiness shall consist of the certification by
the Contractor in writing, and to the satisfaction of the City, that
the program's facilities, equipment and systems have been completely
and properly procured, all subsystem and equipment testing has been
successfully completed, all required permits and licenses have been
obtained to allow the program to operate at its design conditions, and
that all required personnel are in place and properly trained.
D. REPORT
Not less than ninety (90) days prior to July 1, 1998, the Contractor
shall prepare a report certifying to the City its readiness to commence
services. The City shall review this report and accept or reject the
conclusion of the report within thirty days following submission of the
report.
E. SUCCESSFUL DEMONSTRATION OF READINESS
Upon successful Demonstration of Readiness, the Service Date may be
established per Section 3.2. Successful Demonstration of Readiness
prior to the Service Date shall not advance the Service Date. The City
shall cease payments under Lump Sum Tasks 1, 2 and 3 after the Service
Date. The City shall commence payment of the Unit Price payments for
the billing period following establishment of the Service Date and
successful transportation and processing of the Biosolids into a
Biosolids Product, and the successful marketing, transportation and
distribution to an end-user(s) or end-use site (s) for beneficial
application to the land, that quantity of Biosolids Product produced
from a unit quantity of Biosolids in accordance with the Contract.
F. FAILURE OF DEMONSTRATION OF READINESS
Failure to demonstrate readiness shall result in one of the following
events:
(i) At the City's option, the fault may be considered to be minor
and the amount of $150 per Wet Ton times the amount of Wet
Tons of Biosolids each day that the Contractor fails to
demonstrate the ability to accept, transport and process into
a Biosolids Product, and fails to market, transport and
distribute to an end-user(s) or end-use site(s) for beneficial
application to the land, that quantity of Biosolids Product
produced from a unit quantity of Biosolids, assessed after the
Service Date as Liquidated Damages in lieu of cure or default.
Such liquidated damages shall be based upon the difference
between 825 Wet Tons per day and the total of: (a) the reduced
capacity (number of Wet Tons per day) as to which Contractor
demonstrated such ability; PLUS (b) any amount of Biosolids
below such reduced capacity (number of Wet Tons per day)
tendered by City which Contractor fails to so accept,
transport, process, market and distribute.
22
If the City elects this option, the Service Date shall be
established as the completion of the Demonstration of
Readiness.
(ii) In the event that the City elects not to consider the fault
minor pursuant to (i), or at the Contractor's option, the
Contractor may elect to cure the fault determined by the
Demonstration of Readiness. The next submittal of the
Demonstration of Readiness certifications shall be made no
later than 90 days following the completion of the previous
Demonstration of Readiness. No additional submittals of the
Demonstration of Readiness shall be made except at the sole
option of the City.
(iii) Should the Contractor fail to cure the fault pursuant to (ii),
the Contractor may be held in default and the Agreement
terminated for cause. The notice and cure provisions of
Section 12.2 shall not apply to termination for cause under
this Section 6.4.
23
ARTICLE 7 - PROVISIONS RELATING TO LABOR
7.1 SUPERVISION BY CONTRACTOR
A. The Contractor shall give its personal supervision to the work or have
a competent manager, xxxxxxx or supervisor, satisfactory to the
Commissioner assigned to the work at all times during performance of
the contract, with authority to act for the Contractor.
B. In the performance of the contract hereunder, the Contractor shall
utilize competent, and qualified persons. All such persons are the
employees of the Contractor and not of the City and the Contractor
shall be responsible for their acts, personal conduct and work.
C. All services shall be performed in a skillful and workmanlike manner.
The Commissioner may require and the Contractor agrees to the removal
from the work of any of the Contractor's personnel or its
subcontractor's personnel deemed incompetent, careless or otherwise
objectionable by the Commissioner.
D. The Department shall have the right to have representatives of the
Department or of the City or the State or Federal governments present
at the site of the engagement to observe the work being performed.
7.2 PROHIBITED ACTS
The Contractor shall use its best efforts not to employ any labor, or utilize
materials or means which employment or utilization during the course of this
agreement may in any way tend to cause or result in strikes, work stoppages,
delays, suspensions of work or similar troubles by workers employed by the
Contractor, or by any of the trades working in or above the buildings and
premises where work is being performed under this agreement, or by Contractors
or their subcontractors pursuant to other agreements or contracts, or on any
other building or premises owned or operated by the City of New York, its
agencies, departments, boards or authorities. Any material violation by the
Contractor of these requirements should be considered as proper and sufficient
cause for declaring the Contractor to be in default.
7.3 NOTICE OF LABOR DISPUTES
Whenever the Contractor has knowledge that any actual or potential labor dispute
is delaying or threatens to delay the timely performance of this contract, the
Contractor shall immediately give notice to the Department, including all
relevant information with respect thereto.
7.4 MINIMUM WAGES AND WORKING CONDITIONS
A. Except for employees whose wage is required to be fixed pursuant to
Section 220 of the Labor law, all persons employed by the Contractor
24
and any subcontractor in the manufacture or furnishing of the supplies,
materials, or equipment, or the furnishing of work, labor or services,
used in the performance of this Contract, shall be paid without
subsequent deduction or rebate unless expressly authorized by law, not
less than the sum mandated bylaw.
B. For any breach or violation of the paragraphs on working conditions and
minimum wages above, the party responsible therefor shall be liable to
the City for liquidated damages, which may be withheld from any amounts
due on any contracts with the City of such party responsible, or may be
recovered in suits brought by the Corporation Counsel in the name of
the City, in addition to damage for any other breach of this Contract,
a sum equal to the amount of any underpayment of wages due to any
employee engaged in the performance of this Contract. In addition, the
Commissioner shall have the right to cancel this Contract and enter
into other contracts for the completion of the original Contract, with
or without public letting, and the original Contractor shall be liable
for any additional cost. All sums withheld or recovered as deductions,
rebated, refunds, or under payments of wages hereunder, shall be held
in a special deposit account and shall be paid without interest, on
order of the Commissioner of Labor, directly to the employees who have
been paid less than minimum rates of pay as set forth herein and on
whose account such sums were withheld or recovered, provided that no
claims by employees for such payments shall be entertained unless made
within one year from the date of actual notice to the Contractor of the
withholding or recovery of such sums by the City.
C. In the event of any breach or violation of any of the provisions of
this Article 7, and in addition to any other provisions above,
pertaining to said breach or violation, no contracts shall be awarded
to the Contractor or subcontractor, as the case may be, or to any firm,
corporation, partnership or association in which the Contractor or
subcontractor has a controlling interest until three years have elapsed
from the date of such breach.
D. THIS SUBSECTION 7.4(D) NOT APPLICABLE -- Contractor is hereby advised
that the prevailing wage provisions of New York State Labor Law
Sections 220 and 230 are NOT APPLICABLE to the services and activities
to be provided under this Contract.
E. In all orders or contracts by the Contractor to the subcontractor for;
(a) manufacturing or furnishing any of the supplies, material or
equipment required under the Contract; (b) furnishing any of the work,
labor or services required under the Contract, the Contractor shall
insert a notice to the subcontractor to the effect that such supplies,
materials, equipment or work, labor or services are for the City of New
York.
F. No part of the work, labor or services will be performed or rendered by
the Contractor in any plants, factories, buildings or surrounding or
working under conditions which are unsanitary or hazardous or dangerous
to the health and safety of employees engaged in the performance of
this
25
contract. Compliance with the safety, sanitary and factory inspection
laws of the state(s) in which the work is to be performed shall be
prima facie evidence of compliance with this paragraph.
G. At the time the Contractor makes application for each payment, the
Contractor shall submit to the Commissioner a written certification of
compliance with all applicable provisions (if any) and stipulations
required by Section 220 of the New York State Labor Law. Compliance
with the provisions of this paragraph shall be a condition precedent to
payment and no payment shall be made to the Contractor unless and until
each such certification shall have been submitted to and received by
the Commissioner. Contractor is, however, advised that the prevailing
wage provisions of New York State Labor Law Sections 220 and 230 are
NOT APPLICABLE to the services and activities to be provided under this
Contract.
H. This Contract is executed by the Contractor with the express warranty
and representation that the Contractor is not disqualified under the
provisions of Section 6-109 of the Administrative Code for the award of
the Contract.
I. Any breach or violation of any of the foregoing shall be deemed a
breach or violation of a material ground for cancellation thereof by
provision of this Contract, and the City.
26
ARTICLE 8 - BOOKS AND RECORDS
8.1 MAINTENANCE
The Contractor agrees to maintain separate and accurate books, records,
documents and other evidence and accounting procedures and practices which
sufficiently and properly reflect all direct and indirect costs of any nature
expended in the performance of this Agreement.
8.2 RETENTION OF RECORDS
The Contractor agrees to retain all books, records, and other documents relevant
to this Agreement for seven (7) years after the final payment or termination of
this Agreement, whichever is later. City, State and Federal auditors and any
other person duly authorized by the Department shall have full access to and
shall have the right to examine any of said materials during said period.
8.3 NO REMOVAL OF RECORDS FROM PREMISES
Where performance of this Agreement involves use by the Contractor of Department
papers, files, data or records at Departmental facilities of offices, the
Contractor shall not remove any such papers, files, data or records therefrom
without the prior approval of the Department's designated official.
8.4 AUDIT BY THE DEPARTMENT AND THE COMPTROLLER
All vouchers or invoices presented for payment to be made hereunder, and the
books, records and accounts upon which said vouchers or invoices are based, are
subject to audit by the Department and by the Comptroller of the City of New
York pursuant to the powers and responsibilities as conferred upon said
Department and said Comptroller by the New York City Charter and Administrative
Code of the City of New York, as well as all orders and regulations promulgated
pursuant thereto.
The Contractor shall submit any and all documentation and justification in
support of expenditures or fees under this Agreement as may be required by said
Department and said Comptroller so that they may evaluate the reasonableness of
the charges and shall make its records available to the Department and the
Comptroller as they consider necessary.
All books, vouchers, records, reports, canceled 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.
27
The Contractor shall not be entitled to payment under the Agreement until all
requirements have been satisfactorily met.
28
ARTICLE 9 - REPRESENTATIONS AND WARRANTIES
9.1 PROCUREMENT OF AGREEMENT
A. The Contractor represents and warrants that no person or selling agency
has been employed or retained to solicit or secure this Agreement upon
an agreement or understanding for a commission, percentage, brokerage
fee, contingent fee or any other compensation. The Contractor further
represents and warrants that no payment, gift or thing of value has
been made, given or promised to obtain this or any other agreement
between the parties. The Contractor makes such representations and
warranties to induce the City to enter into this Agreement and the City
relies upon such representations and warranties in the execution
hereof.
B. For a breach or violation of such representations or warranties, the
Commissioner shall have the right to annul this Agreement without
liability, entitling the City the recovery of all monies paid hereunder
and the Contractor shall not make claim for, or be entitled to recover,
any sum or sums, due under this Agreement. This remedy, effected, shall
not constitute the sole remedy afforded the City in the event of such
breach, nor shall it constitute a waiver of the City's right to claim
damages or refuse payment or to make any other action provided for by
law or pursuant to this Agreement.
9.2 CONFLICT OF INTEREST
The Contractor represents and warrants that neither it nor any of its directors,
officers, members, partners or employees, has any interest nor shall they
acquire any interest, directly or indirectly which would or may conflict in any
manner or degree with the performance or rendering of the services herein
provided. The Contractor further represents and warrants that in the performance
of this Agreement no person having such interest or possible interest shall be
employed by it. No elected official or other officer or employee of the City or
Department, nor any person whose salary is payable, in whole or part, from the
City Treasury, shall participate in any decision relating to this Agreement
which affects his/her personal interest or the interest of any corporation,
partnership or association in which he/she is, directly or indirectly,
interested nor shall any such person have any interest, direct or indirect, in
this Agreement or in the proceeds thereof.
9.3 FAIR PRACTICES
The Contractor and each person signing on behalf of any Contractor represents
and warrants and certifies, under penalty of perjury, that to the best of its
knowledge and belief:
A. The prices in this Agreement have been arrived at independently without
collusion, consultation, communication, or agreement, for the
29
purpose of restricting competition, as to any matter relating such
prices with any other bidder or with any competitor.
B. Unless otherwise required by law, the prices which have been quoted in
this Agreement and on the proposal submitted by the Contractor have not
been knowingly disclosed by the Contractor prior to the proposal
opening, directly or indirectly, to any other proposer/bidder or any
competitor; and
C. No attempt has been made or will be made by the Contractor to induce
any other person, partnership or corporation to submit or not to submit
a proposal for the purpose of restricting competition.
The fact that the Contractor (a) has published price lists, rates or
tariffs covering items being procured, (b) has informed prospective
customers of proposed or pending publication of new or revised price
lists for such items, or (c) has sold the same item to others customers
at the same prices being bid, does not constitute, without more, a
disclosure within the meaning of the above.
9.4 WARRANTIES AND REPRESENTATIONS CONCERNING THE WORK
Contractor represents and warrants that:
A. It has the required authority (other than the Biosolids Management Plan
which will be obtained in accordance with the provisions of this
Agreement), ability, skills and capacity to perform, and shall perform
The Work in a manner utilizing sound engineering principles, project
management procedures and supervisory procedures.
B. It is familiar with the physical requirements of The Work and has
inspected the Plant Site and surrounding locations, including surface
but not subsurface conditions, to the extent necessary in accordance
with prudent engineering practices, for performing its obligations
under this Contract and accepts such conditions for the performance of
such obligations.
C. It has knowledge of all the legal requirements, regulations, codes and
business practices that must be followed in performing The Work and The
Work will be performed accordingly.
D. It is a general partnership which is, and each corporation comprising
it is, duly authorized to do business in the state of New York.
The City represents and warrants that:
A. The City is a body politic and corporate and a public instrumentality
of the State of New York, duly organized and validly existing under the
laws of the State of New York, with full legal right, power and
authority to enter into and perform its obligations under this
Agreement.
30
B. The City has duly authorized the execution and delivery of this
Agreement and this Agreement has been duly executed and delivered by
the City and constitutes the legal, valid and binding obligation of the
City, enforceable against the City in accordance with its terms upon
registration with the Comptroller and subject to the Rules of the New
York City Procurement Policy Board.
31
ARTICLE 10 - COVENANTS OF THE CONTRACTOR
10.1 EMPLOYEES
All experts or consultants or employees of the Contractor who are employed by
the Contractor to perform work under this Agreement are neither employees of the
City nor under contract to the City and the Contractor alone is responsible for
their work, direction, compensation and personal conduct while engaged under
this Agreement. Nothing in this Agreement shall impose any liability or duty on
the City for the acts, omissions, liabilities or obligations of the Contractor
or any person, firm, company, agency, association, corporation or organization
engaged by the Contractor as expert, consultant, independent contractor,
specialist, trainee, employee, servant, or agent or for taxes of any nature
including but not limited to unemployment insurance, worker's compensation,
disability benefits and social security, or, except as specifically stated in
this Agreement to any person, firm or corporation.
10.2 INDEPENDENT CONTRACTOR STATUS
The Contractor and the Department agree that the Contractor is an independent
contractor, and not an employee of the Department or the City of New York. In
accordance with such status as independent contractor, the Contractor covenants
and agrees that neither it nor its employees or agents will hold themselves out
as, nor claim to be, officers or employees of the City of New York, or of any
department, agency or unit thereof, by reason thereof and that they will not, by
reason hereof, make any claim, demand or application to or for any right or
privilege applicable to an officer of or employee of the City of New York
including, but not limited to, Worker's Compensation coverage, Unemployment
Insurance Benefits, Social Security coverage or employee retirement membership
or credit.
10.3 CONFIDENTIALITY
All of the reports, information or data, furnished to or prepared, assembled or
used by the Contractor under this Agreement are to be held confidential. The
Contractor agrees that the same shall not be made available to any individual or
organization without the prior written approval of the Department, which written
approval shall not be unreasonably withheld. The provisions of this Section
shall remain in full force and effect following termination of, or cessation of,
this Agreement or the services required by this Agreement.
10.4 COMPLIANCE WITH LAW AND CHANGE IN LAW
The Contractor shall render all services under this Agreement, including
services relating to the transportation and land application of, the Biosolids
hereunder, in accordance with all applicable provisions of Federal, State and
Local Laws, rules and regulations including those promulgated by the United
States Environmental Protection Agency, the New York City Department of
Environmental Protection, the New York State Department of Environmental
Conservation and all other federal, state and local governmental authorities
having jurisdiction over such activities.
In the event, however, that a Law is changed or comes into effect or is
effective after the date of execution of this Agreement which materially and
adversely affects the Contractor's ability to perform the services as specified
hereunder at the agreed upon price, then the Contractor shall be
32
entitled to an equitable adjustment of the Contract, which may include an
increase in price. No such increase in price may be implemented unless
Contractor satisfactorily demonstrates the effects of such change in Law and the
actual and reasonable increase(s) in total costs to Contractor necessitated by
such change, including due allowance for available mitigation of cost impacts.
FOR PURPOSES OF THIS CONTRACT, EPA REGULATION 40 CFR 503 IN THE FORM PROMULGATED
IN FEBRUARY OF 1993, AS AMENDED ON FEBRUARY 19, 1994 AND ON OCTOBER 25, 1995,
SHALL BE DEEMED TO BE A PRESENTLY EXISTING LAW.
UNAVAILABILITY OF PRIMARY SITE OR PLAN NOT A "CHANGE IN LAW": It is understood
and agreed that unavailability of or inability to use a primary site or plan,
resulting from a "Change in Law" or Force Majeure, shall not be deemed nor
construed to invoke the provisions of this Section 10.4 or of Section 14.1
unless said "Change in Law" also precludes the availability or use of the
back-up capacity (including related contingency and/or siting plans). It is
understood that Contractor is obligated hereunder to maintain such back-up
capacity at all times. Nothing in this paragraph shall be construed to limit the
City's rights and powers under Article 12 hereof, including without limitation
Sections 12.1, 12.2 and 12.3 thereof.
APPLICATION OF AND DISPUTES CONCERNING `CHANGE IN LAW' PROVISIONS: In general, a
`Change in Law' covered by this Section 10.4 would be one of such a nature that
any restoration plan or termination of the Contract (pursuant to the 'Force
Majeure' provisions of Article 14) would not be desirable or appropriate in the
opinion of the Commissioner or in the City's exercise of discretion. If the
Contractor disagrees with the City's determination to deal with the Change in
Law under the provisions of this Section 10.4, whether or not the relevant
event(s) might constitute a Force Majeure under this Contract, then Contractor
shall so notify the City in writing. After such consultation between the parties
and submission by Contractor of such supporting materials as the City deems
appropriate and if the matter has not been mutually resolved, the City shall
render its determination to Contractor in writing. If such determination is not
accepted by Contractor, the issue(s) shall be submitted to dispute resolution in
accordance with Article 16 hereof. Nothing in this Section 10.4 nor in Section
14.4 shall be deemed to impair any of the City's rights: (1) to require
performance of the contractual services by the Contractor, including performance
during the existence of any dispute between the parties; or (2) to terminate
this Contract at any time.
10.5 EMPLOYMENT PRACTICES
The Contractor and its subcontractors shall comply with the Civil Rights Act of
1964 and any amendment thereto, and the rules and regulations thereunder, and
Mayor's Executive Order No. 50 of 1980 as revised and the rules and regulations
promulgated thereunder.
10.6 INVESTIGATION CLAUSE
Section 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 (State) or City of New York (City)
governmental agency or authority that is empowered directly or
by designation to compel the attendance of witnesses and to
examine witnesses under oath, or conducted by the Inspector
General of a governmental agency that is a party in interest
to the
33
transaction, submitted bid, submitted proposal, contract,
lease, permit, or license that is the subject of the
investigation, audit or inquiry.
Section 1.2 If any person who has been advised that his or her
statement, and any information from such statement, will not
be used against him or her in any subsequent criminal
proceeding refuses to testify before a grand jury or other
governmental agency or authority empowered directly or by
designation to compel the attendance of witnesses and to
examine witnesses under oath concerning the award of or
performance under any transaction, agreement, lease, permit,
contract, or license entered into with the City, the State, or
any political subdivision or public authority thereof, or the
Port Authority of New York and New Jersey, or any local
development corporation within the City, or any public
benefit, corporation organized under the laws of the State of
New York, or;
(a) If any person refuses to testify for a reason other than the
assertion of his or her privilege against self incrimination
in an investigation, audit or inquiry conducted by a City or
State governmental agency or authority empowered directly or
by designation to compel the attendance of witnesses and to
take testimony under oath, or by the Inspector General or 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;
Section 1.3 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.
(a) If any non-governmental party to the hearing requests and
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.
Section 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 lender
for fair value prior to the issuance of the notice scheduling
the hearing, without the City incurring any penalty or damages
on account of such cancellation
34
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.
Section 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 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.
(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 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.
Section 1.6 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.
(a) 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.
(b) 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.
(c) The term "member" as used herein shall be defined as any
person associated with another person or entity as partner,
director, officer, principal or employee.
Section 1.7 In addition to and notwithstanding any other provision of this
agreement the Commissioner or agency head may in his or her
sole discretion terminate this agreement upon not less than
three (3) days written notice in the event contractor fails to
promptly report in writing to the Commissioner of
Investigation of the City
35
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 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.
10.7 ASSIGNMENT
A. The Contractor shall not assign, transfer, convey, sublet or otherwise
dispose of this Agreement, or of the Contractor's right title,
interest, obligations or duties herein, or the Contractor's power to
execute such Agreement, or assign, by power of attorney or otherwise,
any of its rights to receive monies due or to become due under this
Agreement, unless the prior written consent of the Department shall be
obtained. Any such assignment, transfer, conveyance, sublease or other
disposition without such consent shall be void. The City acknowledges
that the Contractor may make a collateral assignment of its rights
under this Agreement to receive payments to a financial institution for
the benefit of holders of indebtedness incurred by the Contractor for
the performance hereof, and agrees that the Department's written
consent for the same shall not be unreasonably withheld or delayed.
B. In the event that the Contractor assigns, transfer, conveys, sublets or
otherwise disposes of this Agreement as specified in subdivision A,
above, without the prior written consent of the Department, the
Department may at its option revoke and annul this Agreement and the
Department and the City shall be relieved and discharged from any and
all liability and obligations growing out of such Agreement to the
Contractor, its assignees, transferees or sublessees and the Contractor
shall forfeit and lose all monies heretofore earned under this
Agreement, except so much thereof as may be required to pay the
Contractor's employees. The provisions of this section shall not
hinder, prevent or affect an assignment by the Contractor for the
benefit of its creditors made pursuant to the laws of the State of New
York.
C. This Contract may be assigned by the Department or the City to any
corporation, agency or instrumentality having authority to accept such
assignment, provided that the City shall notify the Contractor of any
such assignment and further provided that no such assignment will
relieve the City or the Department of any of its obligations hereunder.
10.8 SUBCONTRACTING
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 Department. Two
copies of each such proposed subcontract shall be submitted to the
Department with the Contractor's written request for approval, which
approvals are not to be unreasonably withheld.
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 Department
and the Contractor,
36
2. that nothing contained in such contract shall impair the
rights of the Department,
3. that nothing contained therein, or under the Agreement between
the Department and the Contractor shall create any contractual
relationship between the subcontractor and the Department, and
4. that the subcontractor specifically agrees to be bound by the
confidentiality provision set forth in this Agreement between
the Department and the Contractor.
5. All subcontracts for services to be provided after the Service
Date shall contain a provision that requires the
subcontractors, in the event of default by the Contractor or
termination of the Agreement, to continue, at the City's sole
option, to provide the same services to the City or its
assignee for the remaining term of this agreement at the same
cost and terms at which such subcontracted products or
services were to be supplied to Contractor.
C. The Contractor agrees that it is fully responsible to the Department
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 Contractor shall not in any way be relieved of any responsibility
under this Agreement by any subcontract.
10.9 PUBLICITY
A. The prior written approval of the Department is required before the
Contractor or any of its employees, servants, agents, or independent
contractors may, at any time, either during the term or after the
termination of this Agreement make any statement to the press or issue
any material for publication through any medium of communication
bearing on the work performed or data collected under this Agreement
which written approval is not to be unreasonably withheld.
B. If the Contractor publishes a work dealing with any aspect of
performance under this Agreement, or of the results and accomplishments
attained in such performance, the Department shall have a
royalty-free, non exclusive and irrevocable license to reproduce,
publish or otherwise use and to authorize others to use the
publication.
10.10 PARTICIPATION IN AN INTERNATIONAL BOYCOTT
A. The Contractor agrees that neither the Contractor nor any
substantially owned affiliated company is participating or shall
participate in an international boycott in violation of the provisions
of the Export Administration Act of 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
37
a substantially owned affiliated company thereof, or 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 her or his option, render forfeit
and void this contract.
C. The Contractor shall comply in all respects, with the provisions of
Section 6-114 of the Administrative Code of the City of New York and
the rules and regulations issued by the Comptroller thereunder.
10.11 INVENTIONS, PATENTS AND COPYRIGHTS
A. Any discovery or invention arising out of or developed in the course of
performance of this Agreement shall be promptly and fully reported to
the Department.
B. No report, document or other data produced in whole or in part with
contract funds shall be copyrighted by the Contractor nor shall any
notice of copyright be registered by the Contractor in connection with
any report, document or other data developed for the Agreement.
C. In no event shall Subsections A and B of this Section be deemed to
apply to any report, document or other data, or any invention of the
Contractor which existed prior to, or was developed or discovered
independently from, its activities related to or funded by this
Agreement.
10.12 ANTI-TRUST
The Contractor hereby assigns, sells, and transfers to the City all right, title
and interest in and to any claims and causes of action arising under the
anti-trust laws of the State of New York or of the United States relating to
the particular goods or services purchased or procured by the City under this
Agreement.
10.13 POLITICAL ACTIVITY
A. There shall be no partisan political activity or any activity to
further the election or defeat of any candidate for public, political
or party office as part of or in connection with this Agreement, nor
shall any of the funds provided under this Agreement be used for such
purposes.
B. No funds provided under this Agreement shall be used, for publicity or
propaganda purposes, for the preparation, distribution, or use of any
kit, pamphlet, booklet, publication, radio, television or film
presentation designed to support or defeat legislation pending before
the Congress of the United States, except in presentation to the
Congress itself.
C. No funds provided under this Agreement shall be used to pay the salary
or expenses of any person to engage in any activity designed to
influence legislation or appropriations pending before the Congress of
the United States.
38
10.14 CLEAN AIR AND NOISE CONTROL PROVISIONS
A. The Contractor shall comply with all applicable standards, order or
regulations issued pursuant to the Clean Air Act of 1970, as amended
(42 U.S.C. 1857B, et seq.) and the Federal Water Pollution Act (33
U.S.C. 1251, et seq.), and the Contractor shall comply with all
applicable provisions and regulations promulgated under the New York
City Air Pollution Control Code (Administrative Code Sections 24-102,
et seq.).
B. Should a dust hazard be created in performing the work of this
Contract, for the elimination of which appliances or methods are
available, such appliances and methods shall be installed, maintained,
and effectively operated during the continuance of such dust hazard.
Such appliances or methods used shall be the best available technology.
Failure to comply with this provision after notice shall make this
Contract subject to termination.
C. In accordance with the provisions of Section 24-216, "Noise abatement
contract compliance", of the Administrative Code of the City of New
York:
1. Devices and activities which will be operated, conducted,
constructed or manufactured pursuant to this Contract and
which are subject to the provisions of the New York City Noise
Control Code shall be operated, conducted, constructed or
manufactured without causing a violation of such 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 Commissioner of the
Department of Environmental Protection.
39
ARTICLE 11 - DEDICATED SERVICES
The Contractor agrees that the Biosolids Processing Facility(ies), ancillary
facilities (e.g., storage/transshipment and distribution), processing equipment,
labor, personnel, and transportation equipment for the Active Commitment
Quantity and all containers and other Facilities provided under this Contract
shall be used exclusively for the Biosolids and Biosolids Product produced from
the City's wastewater treatment plants. If the Contractor identifies land
application/reclamation sites as part of its marketing program then the
Contractor shall have land application areas available for use by New York City
at all times for the Active Commitment Quantity. During the term of this
Agreement, no other Biosolids, Biosolids Product or other materials shall be
processed at such facility(ies), transported in such containers or applied on
land attributable to the quantity committed for NYC Biosolids so as to displace
any portion of the Active Commitment Quantity agreed upon by the Contractor and
the City without the express written consent of the City.
40
ARTICLE 12 - TERMINATION AND DEFAULT
12.1 TERMINATION FOR CONVENIENCE
A. PRIOR TO THE SERVICE DATE
At any time after the time the conditions precedent set forth in
Paragraph 3.1(A)(i) are satisfied by the Contractor and prior to the
Service Date the Department may upon ten (10) days written notice to
the Contractor cancel the Contract and terminate the service. In the
event of such termination the City shall pay to the Contractor within
sixty (60) days of termination a sum equal to any unpaid portion of the
percent completion under Lump Sum Items 1, 2 and 3.
B. AFTER THE SERVICE DATE
At any time after the Service Date during the term of this Contract the
Department may, upon ten (10) days written notice to the Contractor,
cancel the Contract and terminate the service. In the event of such
termination, the Contractor shall complete performance of the Work in
progress by transporting and processing into a Biosolids Product, all
Biosolids already accepted at the Contractor's Biosolids processing
facility and by transporting, marketing and distributing to an
end-user(s) or end-use site(s) for beneficial application to the land,
that quantity of Biosolids product produced from the unit quantity of
Biosolids already accepted. In such event, the City shall pay to the
Contractor a sum equal to all outstanding Unit Price items and all of
the actual and reasonable costs of Lump Sum items successfully
completed as of the termination date, including Biosolids and Biosolids
Product transportation, processing, marketing and distribution services
for the quantity of Biosolids already accepted, prior to notice of such
termination.
Except as provided below, it is expressly agreed that the City shall
have no obligation for, and Contractor shall not be entitled to any
compensation for nor shall Contractor make any claim for, any costs,
expenses or damages whatsoever whether direct or indirect or
consequential, which Contractor may incur or be liable for as a
consequence or result of such termination.
However, if the Commissioner terminates the Contract for convenience
under this section 12.1B during the first five (5) years following the
Service Date, then (provided the Contractor is not at fault nor in
default) the Contractor shall receive termination compensation in the
nature of liquidated damages amounting to five (5) percent of the
minimum monthly revenue; which would be based solely upon the minimum
guaranteed biosolids multiplied by the Initial Unit Price without
escalation, multiplied by the number of months remaining in such five
year period on the effective date of such termination. Provided,
however, that the amount to be paid with respect to each such month
shall not exceed twenty thousand dollars ($20,000.00). Thus, the
maximum amount that may be paid in the event of such termination for
41
convenience shall be one million two hundred thousand dollars
($1,200,000.00). Such termination-for-convenience compensation shall be
calculated as follows:
Termination for Convenience Compensation Amount =
(Minimum Monthly Guaranteed Quantity) X (0.05) X ($INITIAL
UNIT PRICE/WT) x (months remaining in 5-year period).
12.2 DEFAULT
The Contractor may be declared in default by the City and the
Department may terminate the Agreement in whole or in part by written
notice to the Contractor for, but not limited to, the following:
A. The Contractor becomes insolvent or
B. The Contractor makes an assignment for the benefit of
creditors pursuant to the Statutes of the State of New York or
C. A receiver or receivers are appointed to take charge of the
Contractor's property or affairs or
D. The Contractor sublets, assigns, transfers, conveys or
otherwise disposes of this Agreement other than as herein
specified or
E. The Contractor fails or refuses to proceed with the work when
and as directed by the Commissioner or
F. The Contractor is or has been unnecessarily or unreasonably or
willfully delaying
(i) the performance and completion of the work, or
(ii) the award of necessary subcontracts, or
(iii) the placement of necessary material and equipment
orders or
G. The Contractor, without just cause, reduces his working force
to a number which, if maintained, would jeopardize the timely
performance of the contract, and fails or refuses to increase
such working force when ordered to do so by the Commissioner
or
H. The Contractor abandons the Work or
I. The Contractor is or has been willfully or in bad faith
violating any of the provisions of this contract or
J. The Contractor persistently or repeatedly fails or refuses
substantially to fulfill any of its material obligations in
accordance with this Agreement unless such failure or refusal
shall be excused or justified by Force Majeure.
K. The Contractor fails to accept, transport, process, market and
apply Biosolids as required by the terms of this Agreement.
42
Prior to the City exercising its right to declare the Contractor in Default, and
to terminate the Contract, the City shall give prior written notice to the
Contractor stating that in its opinion a particular default or defaults exist
which will, unless corrected, constitute a material breach of this Agreement on
the part of the Contractor and which will give the City a right to terminate
this Agreement for cause unless such default is corrected. Such notice may state
the effective date of such termination should such default(s) not be timely
corrected.
The Contractor shall correct such default within thirty (30) days from the date
of the notice. However, if the Contractor has commenced to take appropriate
steps to correct such default which will require more than 30 days to correct
the default, the City may in its discretion give its consent for up to three (3)
consecutive thirty (30) day extensions, provided that the default is susceptible
to a cure within 120 days and that the Contractor demonstrates to the reasonable
satisfaction of the Commissioner that a cure is diligently being pursued prior
to the granting of each such extension.
12.3 TERMINATION FOR CONTRACTOR'S DEFAULT; DATE OF TERMINATION
If the City properly exercises its right to terminate this Agreement as a result
of a Contractor Event of Default: (i) the City shall cease to be obligated to
provide to the Contractor any further Biosolids hereunder; and (ii) the City
shall pay to the Contractor within sixty (60) days of such termination all Unit
Price Payments required hereunder through the date of termination.
Such termination for Contractor's default shall occur and take effect without
further notice on the calendar day following the end of the 30-day cure period
(or any extended period granted by City) set forth in Section 12.2 above. The
City may, at its option, issue a notice of such termination confirming the same
or confirming the effective date of termination, together with such other
information, notifications or directions deemed appropriate by City.
12.4 CONTRACTOR LIABILITY FOR DAMAGES
Notwithstanding any other provisions of this Agreement, the Contractor shall not
be relieved of liability to the City for damages sustained by the City by virtue
of the Contractor's default.
12.5 RIGHTS AND REMEDIES
The rights and remedies of the City provided in this Article shall not be
exclusive and are in addition to all other rights and remedies provided by Law
or under this Agreement.
43
ARTICLE 13 - MISCELLANEOUS
13.1 CHOICE OF LAW, CONSENT TO JURISDICTION AND VENUE
This Agreement shall be deemed to be executed in the City of New York,
regardless of the domicile of the Contractor, and shall be governed by and
construed in accordance with the laws of the State of New York.
The parties agree that any and all claims asserted by or against the city
arising under this Agreement or related thereto shall be heard and determined
either in the courts of the United States located in New York City ("Federal
Courts") or in the courts of the State of New York ("New York State Courts")
located in the City and County of New York. To effectuate this agreement and
intent, the Contractor agrees:
A. If the City initiates any action against the Contractor in Federal
Court or in New York State Court, service of process may be made by the
Contractor either in person, wherever such Contractor may be found, or
by registered mail addressed to the Contractor at its address as set
forth in this Agreement, or to such other address as the Contractor may
provide to the City in writing and
B. With respect to any action between the City and the Contractor in New
York State Court, the Contractor hereby expressly waives and
relinquishes any rights it might otherwise have
(a) to move to dismiss on grounds of forum non conveniens,
(b) to remove to Federal Court and
(c) to move for a change of venue to a Xxx Xxxx Xxxxx Xxxxx
xxxxxxx Xxx Xxxx Xxxxxx.
C. With respect to any action between the City and the Contractor in
Federal Court located in New York City, the Contractor expressly waives
and relinquishes any right it might otherwise have to move to transfer
the action to a United States Court outside the City of New York.
D. If the Contractor commences any action against the City in a Court
located other than in the City and State of New York, upon request of
the City, the Contractor shall either consent to a transfer of the
action to a court of competent jurisdiction located in the City and
State of New York or, if the court where the action is initially
brought will not or cannot transfer the action, the Contractor shall
consent to dismiss such action without prejudice and may thereafter
reinstitute the action in a court of competent jurisdiction in New York
City.
If any provision(s) of this Article is (are) held unenforceable for any
reason, each and all other provision(s) shall nevertheless remain in
full force and effect.
44
13.2 GENERAL RELEASE
The acceptance by the Contractor or its assignees of the final payment under
this Agreement, whether by voucher, judgment of any court of competent
jurisdiction or any other administrative means, shall constitute and operate as
a general release to the City from any and all claims of and liability to the
Contractor arising out of the performance of this Agreement.
13.3 CLAIMS AND ACTIONS THEREON
A. No action at law or proceeding in equity against the City or Department
shall lie or be maintained upon any claim based upon this Agreement or
arising out of this Agreement or in any way connected with this
agreement unless the Contractor shall have strictly complied with all
requirements relating to the giving of notice and of information with
respect to such claims, all as herein provided.
B. No action at law or proceeding in equity shall lie or be maintained
against the Department or the City upon any claim based upon this
Agreement or arising out of this Agreement unless such action shall be
commenced within six (6) months after the date of final payment
hereunder, or within six (6) months of termination or conclusion of
this Agreement, or within six (6) months after the Contractor has, or
reasonably should have had, knowledge of the accrual of the cause of
action, whichever first occurs.
C. In the event any claim is made or any action brought in any way
relating to the Agreement herein, the Contractor shall diligently
render to the Department and/or the City of New York without additional
compensation any and all assistance which the Department and/or the
City of New York may reasonably require of the Contractor.
D. The Contractor shall report to the Department in writing within ten
(10) working days of the initiation by or against the Contractor of any
legal action or proceeding in connection with or relating to this
Agreement.
13.4 NO ESTOPPEL
Neither the City nor any department, officer, agent or employee thereof, shall
be bound, precluded or estopped by any determination, decision, approval, order,
letter, payment or certificate made or given under or in connection with this
contract by the City, the Commissioner, the Program Manager, or any other
officer, agent or employee of the City, either before or after the final
completion and acceptance of the work and payment therefor:
(1) From showing the true and correct classification, amount,
quality or character of the work actually done; or that any
such determination, decision, order, letter, payment or
certificate was untrue, incorrect or improperly made in any
particular, or that the work or any part thereof does not in
fact conform to the requirements of this contract; and
45
(2) From demanding and recovering from the Contractor any
overpayments made to him, or such damages as it may sustain by
reason of his failure to perform each and every part of this
contract in strict accordance with its terms, or both.
13.5 WAIVER
Waiver by either party of a breach of any provision of this Contract shall not
be deemed to be a waiver of any other subsequent breach and shall not be
construed to be a modification of the terms of the Contract unless and until the
same shall be agreed to in writing by the other party as required and attached
to the original Contract.
13.6 NOTICE
Any notice pursuant to the terms and conditions of this contract shall be in
writing and (i) delivered personally, or (ii) sent by certified mail, return
receipt requested, or (iii) sent by a recognized overnight mail or courier
service, with delivery receipt requested, to the following addresses:
IF TO CONTRACTOR: Xxxxx X. Xxxxxxxxxx
New York Organic Fertilizer Co.
0000 Xxx Xxxxx Xxxxxx
Xxxxx, XX 00000
IF TO CITY: The Commissioner
New York City Department of Environmental Protection
00-00 Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx 00000
c: Xx. Xxxxxx X. Xxxxxxx, P.E.
Deputy Commissioner / Director
Bureau of Wastewater Pollution Control
00-00 Xxxxxx Xxxxxxx Xxxxxxxxxx
Xxxxxx, XX 00000
Actual delivery of any such notice, direction or communication to a party at the
aforesaid place, or delivery by certified mail shall be conclusive and deemed to
be sufficient service thereof upon such party as of the date such notice,
direction or communication is received by the party. Such address may be changed
at any time by an instrument in writing executed and acknowledged by the party
making such change and delivered to the other party in the manner as specified
above. Nothing in this section shall be deemed to serve as a waiver of any
requirements for the service of notice or process in the institution of an
action or proceeding as provided by law.
13.7 ALL LEGAL PROVISIONS DEEMED INCLUDED
It is the intent and understanding of the parties to this Agreement that each
and every provision of law required to be inserted in this Agreement
46
shall be and is inserted herein. Furthermore, it is hereby stipulated that every
such provision is to be deemed to be inserted herein, and if, through mistake or
otherwise, any such provision is not inserted, or is not inserted in correct
form, then this agreement shall forthwith upon the application of either party
be amended by such insertion so as to comply strictly with the law and without
prejudice to the rights of either party hereunder.
13.8 SEVERABILITY
If this Agreement contains any unlawful provision not an essential part of the
Agreement and which shall not appear to have been a controlling or material
inducement to the making thereof, the same shall be deemed of no effect and
shall, upon notice by either party, be deemed stricken from the Agreement
without affecting the binding force of the remainder.
13.9 MODIFICATION
This Agreement may be modified by the parties in writing in a manner not
materially affecting the substance hereof. It may not be altered or modified
orally.
13.10 ARTICLE, SECTION AND PARAGRAPH HEADINGS
Article, section and paragraph headings are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
or intent of this Agreement and in no way affect this Agreement.
13.11 INSPECTION AT SITE
The Department shall have the right to have representatives of the Department or
of the City or of the State or Federal governments present at the Plant Site and
any Facility or Facilities or application or reclamation site to observe the
work being performed.
47
ARTICLE 14 - OCCURRENCE OF FORCE MAJEURE
14.1 RESTORATION OF SERVICE
The parties acknowledge that in the event a Force Majeure occurs, it is in their
mutual interest to have The Work resumed as expeditiously and efficiently as
practical unless the City should determine that resumption is not possible or is
not in the best interests of the City. To that end, the parties agree to
cooperate to develop and implement a plan for full restoration of The Work in
accordance with the following procedure:
A. RESTORATION PLAN
In the event of the occurrence of a Force Majeure, the Contractor shall
promptly notify the City of the nature of the occurrence and shall
submit together with that notice, a beneficial reuse proposed plan for
resumption of The Work ("Restoration Plan").
B. ACCEPTANCE OF PLAN
Within thirty (30) days of receipt of the proposed Restoration Plan,
the City shall either accept it or propose its own Alternate
Restoration Plan. If the City proposes such an alternate, the parties
shall meet for the purpose of agreeing upon which plan is preferable
(or agreeing upon a different Alternate Restoration Plan). If the
parties are unable to agree, the City may in its sole discretion
require the Contractor to and it shall proceed with such Alternate Plan
as the City may direct. In the event such Alternate Restoration Plan is
so implemented, and is not successful, then at the City's option either
the Contractor shall proceed to implement its original Restoration Plan
or the provisions of paragraph D below shall apply. Notwithstanding any
other provision of this Agreement, it is understood and expressly
agreed that the City shall have and at all times retain the right to
terminate the Contract, whether it be prior to or following receipt of
the proposed Restoration Plan or before, during or after the
implementation of any plan.
C. COST OF RESTORATION PLAN
The City and the Contractor shall agree (pursuant to Article 16 of this
Contract) upon the costs to be incurred and paid by the City under any
Restoration Plan or Alternate Restoration Plan which may be agreed to
or directed by the City and which is implemented by the Contractor, or
in the absence of such agreement, shall be based upon the actual and
reasonable costs. In the event a dispute arises with respect to such
costs the City agrees to pay all amounts not in dispute to the
Contractor. The disputed amounts shall be subject to dispute resolution
pursuant to Article 16 of this Contract. The Contractor shall submit
monthly invoices to the City for such costs.
D. ELECTION BY CITY TO TERMINATE; NOTICE; INABILITY TO ESTABLISH PLAN
(1) In the event that the City determines at any time that the
Restoration Plan or Alternate Restoration Plan should not be
implemented, then the City may elect to terminate this Contract. The
City shall endeavor, but shall not be required, to give ten (10) days
written notice of any termination or suspension under this Section
14.1; however, it is agreed that such termination or suspension may be
effective immediately or upon such notice as the City may deem
appropriate, and such notice may be given by any means of
48
communication confirmed by suitable written notice. In the event of
such termination during the initial term of this Agreement, the City
shall pay the Contractor a sum equal to all outstanding Lump Sum and
Unit Price items successfully completed as of the termination date. It
is expressly agreed that the City shall have no obligation for, and
Contractor shall not be entitled to any compensation for, any costs or
damages whether direct or indirect which Contractor may incur or be
liable for as a consequence of such termination.
(2) In the event that (i) the Force Majeure is of such nature that
neither the Contractor nor the City is able to propose a Restoration
Plan or an Alternate Restoration Plan, or (ii) the City does not agree
to or direct a plan, or (iii) the plan(s) implemented fail, or (iv)
continuing such implementation is at any time deemed by the City in its
discretion to be not in its best interests or impractical, the City may
then elect to terminate this Contract. In the event of such termination
during the initial term of this Agreement, the City shall pay to the
Contractor a sum equal to all outstanding Lump Sum and Unit Price items
successfully completed as of the termination date; and if any such plan
had been implemented, shall also pay for the agreed cost under said
plan of outstanding items successfully completed as of the termination
date. It is expressly agreed that the City shall have no obligation
for, and Contractor shall not be entitled to any compensation for, any
costs or damages whether direct or indirect which Contractor may incur
or be liable for as a consequence of such termination.
(3) The City shall also have the right in its sole discretion to allow
or direct suspension of performance, in consideration of a Force
Majeure, for such period or periods as is deemed appropriate, without
electing termination but without prejudice to any of its rights to
terminate at any time.
(4) UNAVAILABILITY OF PRIMARY SITE OR PLAN NOT A FORCE MAJEURE: It is
understood and agreed that unavailability of or inability to use a
primary site or plan, resulting from a Force Majeure or "Change in
Law," shall not be deemed nor construed to invoke the provisions of
this Section 14.1 or of Section 10.4 unless said Force Majeure also
precludes the availability or use of the back-up capacity (including
related contingency and/or siting plans). It is understood that
Contractor is obligated hereunder to maintain such back-up capacity at
all times. Nothing in this Subparagraph 14.1(D) (4) shall be construed
to limit the City's rights and powers under Article 12 hereof,
including without limitation Sections 12.1, 12.2 and 12.3 thereof.
14.2 DELAYS OR REDUCTION IN PERFORMANCE OF THE WORK
In the event of a Force Majeure resulting in delay or reduction of performance
of any of The Work, the Contractor shall immediately give notice to the City of
such Force Majeure. The Contractor shall use its best efforts to resume full
performance as soon as practicable. Provided that Contractor is employing its
best efforts to resume The Work, it shall not be deemed to have breached any of
its obligations by virtue of such Force Majeure during its continuance. The
Contractor's time to complete any portion of The Work which requires completion
by a certain date shall be deemed extended by a period of time equal to delay
occasioned by the Force Majeure.
49
14.3 REDUCTION OF COST DURING FORCE MAJEURE
The City's obligation to pay the Lump Sum Task and Unit Prices shall be
suspended during any Force Majeure period except for any quantity of Biosolids
for which the Contractor performs the Work.
14.4 DISPUTE AS TO OCCURRENCE OF A FORCE MAJEURE
If the city is of the opinion that an event or events claimed by Contractor to
be a Force Majeure does not constitute one under this Contract, the City shall
so notify Contractor. After such consultation between the parties and submission
by Contractor of such supporting materials as the City deems appropriate and if
the matter has not been mutually resolved, the City shall render its
determination to Contractor in writing. If such determination is not accepted by
Contractor, the issue(s) shall be submitted to dispute resolution in accordance
with Article 16 hereof. Nothing in this Article 14 shall be deemed to impair the
City's rights to terminate this Contract at any time.
50
ARTICLE 15 - APPROVALS
This Contract shall not become effective or binding unless:
A. It has been registered by the Comptroller pursuant to New York City
Charter Section 328 and the Procurement Policy Board Rule 5-07.
B. Approved by the Mayor pursuant to the provisions of Executive Order No.
42, dated October 9, 1975 in the event the Executive Order requires
such approval and
C. Certified by the Mayor (Mayor's Fiscal Committee created pursuant to
Executive Order No. 43, dated October 14, 1975) that performance
thereof will be in accordance with the City's financial plans
D. The requirement of this Article shall be in addition to, and not in
lieu of, any approval or authorization otherwise required for this
Contract to be effective and for the expenditure of City funds.
51
ARTICLE 16 - CONTRACT CHANGES, DISPUTED WORK AND RESOLUTION
16.1 CONTRACT CHANGES
Changes may be made to this contract only as duly authorized by the Agency Chief
Contracting Officer or his or her designee. Vendors deviating from the
requirements of an original purchase order or contract without a duly approved
change order document, or written contract modification or amendment, do so at
their own risk. All such changes, modifications and amendments will become a
part of the original contract.
Contract changes will be made only for work necessary to complete the work
included in the original scope of the contract, and for non-material changes to
the scope of the contract. Changes are not permitted for any material alteration
in the scope of work. Contract changes may include any contract revision deemed
necessary by the Contracting Officer.
The Contractor shall be entitled to a price adjustment for contract change work
performed pursuant to a written change order. If any part of the contract work
is necessarily delayed by a change order, the contractor will be entitled to an
extension of time for performance. Adjustments to price shall be computed in
one or more of the following ways: (i) by agreement of a fixed price; (ii) by
unit prices specified in the contract; (iii) by time and material record; and/or
(iv) in any other manner approved by the City Chief Procurement Officer.
Where the cost of the change order has been negotiated in the absence of
established cost history, the costs are subject to verification by post audit.
If the post-audit reveals that the contractor's costs for the change order work
were inaccurately stated during negotiations, the agency shall recoup the amount
by which the costs were inaccurately stated by proportionately reducing the
price of the change order. This remedy is not exclusive and in addition to all
other rights and remedies of the City.
Except in the case of requirements contracts, any contract increases which
cumulatively exceed the greater of 10% or $50,000 must be approved in writing by
the City Chief Procurement Officer. Any contract amendment which either amends a
unit price, cancels required units, or adds a new type of unit item to the
contract must be approved in writing by the Agency Chief Contracting Officer.
16.2 CHANGES IN WORK
The following shall apply to Changes in Work initiated by the City which result
in an increase or a decrease in the costs to be incurred by Contractor. [No
modification or change order documentation shall be required where the work
under or cost of any Lump Sum item(s) is REDUCED.]
Any changes in costs to Contractor due to a Change in Work shall be reflected in
changes to either or both of the Unit Price or Lump Sum Price charged the City.
In supporting its claim for a change Contractor shall provide sufficient
detailed documentation to demonstrate the
52
changes in the categories listed in Article 4 which make up the Lump Sum and
Unit Price elements.
16.3 PRICE REVIEW CRITERIA
A. The Contractor shall whenever required by the City, submit cost or
pricing data and formally certify that, to the best of its knowledge
and belief, the cost or pricing data submitted is accurate, complete,
and current as of a specified date. The contractor shall be required to
keep its submission of cost and pricing data current until the contract
has been completed.
B. The price of any change order, or contract modification subject to the
conditions of paragraph A, shall be adjusted to exclude any significant
sums by which the City finds that such price was based on cost or price
data furnished by the supplier which was inaccurate, incomplete, or not
current as of the date agreed upon between the parties.
C. Time for Certification. The Contractor must certify that the cost or
pricing data submitted are accurate, complete, and current as of a
mutually determined date.
D. Refusal to Submit Data. When any contractor refuses to submit the
required data to support a price, the Contracting Officer shall not
allow the price.
E. Certificate of Current Cost or Pricing Data. Form of Certificate. In
those cases when cost or pricing data is required, certification shall
be made using a certificate substantially similar to the one contained
in Chapter 4 of the Procurement Policy Board rules and such
certification shall be retained in the agency contract file.
F. If the City finds that a price or cost reduction should be made, the
Contractor agrees not to raise the following matters as a defense:
1. The Contractor was a sole source supplier or otherwise in a
superior bargaining position and thus the price of the
contract would not have been modified even if accurate,
complete and current cost or pricing data had been submitted;
2. The City should have known that the cost or pricing data in
issue were defective even though the Contractor took no
affirmative action to bring the character of the data to the
attention of the City;
3. The Contract was based on an agreement about the total cost of
the contract and there was no agreement about the cost of each
item procured under the Contract.
16.4 DISPUTED WORK, DETERMINATION OR ORDER
If the Contractor is of the opinion,
1. that any work ordered to be done as contract work by the Commissioner,
or the Program Manager, is extra work and not contract work, or
53
2. that any determination or order of the Commissioner, or Program Manager
violates the terms and provisions of this contract, it must promptly,
and before proceeding with such work or complying with such
determination or order, or simultaneously therewith notify the
Commissioner in writing of the reasons for his opinion with respect
thereto, and request a final determination thereon. Such determination
shall be rendered within a reasonable time.
If the Commissioner determines that the work in question is contract work and
not extra work, or that the determination or order complained of is proper, he
will so notify the Contractor to proceed, and the Contractor must promptly
comply. However, in order to reserve his right to claim compensation for such
work or damages resulting from such compliance, the Contractor must, within ten
(10) working days after receiving notice of the Commissioner's determination and
direction, notify the Commissioner in writing that the work is being performed
or that the determination and direction is being complied with under protest.
If the Contractor fails to so appeal to the Commissioner for a determination or,
having so appealed, should the Contractor thus fail to notify the Commissioner
in writing of his protest, the Contractor shall be deemed to have waived any
claim for extra compensation or damage therefor. Oral appeals or oral protests,
no matter to whom made, shall not be deemed even substantial compliance with the
provisions of this Article.
If the Contractor shall also claim to be sustaining damages by reason of any act
or omission of the City or its agents, he shall within ten (10) working days
after the sustaining of such damage, notify the Commissioner in writing and
within forty-five (45) days thereafter, or within such additional time in excess
in forty-five (45) days as may be granted by the Commissioner upon written
request therefor, submit to the Commissioner verified detailed statements of the
damages sustained together with documentary evidence of such damages. On failure
of the Contractor to fully comply with the foregoing provisions, such claims
shall be deemed waived and no right to recover on such claims shall exist.
In addition to the statements required under Section 16.4 hereof, or under this
Article, the contractor and his sub-contractor shall, upon notice from the
Commissioner or the Comptroller, or either of them, produce for examination at
the contractor's or sub-contractor's office, by the representatives of the
Commissioner, all his books of account, bills, invoices, payrolls, subcontracts,
time books, daily reports, bank deposit books, bank statements, check books,
canceled checks, showing all of his acts and transactions in connection with or
relating to or arising by reason of this contract, and submit himself and
persons in his employment, for examination under oath by any person designated
by the Commissioner to investigate claims made against the City under this
contract. At such examination a duly authorized representative of the Contractor
may be present.
Unless such statements shall be made and filed within the time aforesaid and
such records submitted for examination and the Contractor and his
54
employees submit themselves for examinations as aforesaid, the City shall be
released from all claims arising under, relating to or by reason of this
contract, except for the sum certified by the Commissioner to be due under the
provisions of this contract. It is further stipulated and agreed that no person
has power to waive any of the foregoing provisions, and that in any action
against the City to recover any sum in excess of the sums certified by the
Commissioner to be due under or by reason of this contract, the Contractor must
allege in his complaint and prove, at the trial, compliance with the provisions
of this section.
In addition to the foregoing, after the commencement of any action by the
Contractor arising under or by reason of this contract, the City 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 under oath by said attorney.
Unless the Contractor submits said records, himself and his employees for
examination by the said attorney as aforesaid, the action of the Contractor
shall be dismissed.
In connection with the examination provided for herein, the Commissioner, upon
demand, therefor will also produce for inspection by the Contractor such records
as the Department may have with respect to such disputed work or work performed
under protest pursuant to order of the Commissioner, except those records and
reports which may have been prepared for the purpose of determining the accuracy
and validity of the contractor's claim.
16.5 PERFORMANCE OF EXTRA OR DISPUTED WORK
While the Contractor or his subcontractor is performing extra work ordered by
the Commissioner under Article 16 hereof (unless payment therefor is to be made
by a lump sum or at unit prices previously agreed upon) or is performing
disputed work or complying with a determination or order under protest in
accordance with Article 16.2 hereof, in each such case the Contractor shall
furnish the Program Manager daily with three (3) copies of written statements
signed by the Contractor's representatives at the Facility showing:
(1) The name and number of each xxxxxxx employed on such work or engaged in
complying with such determination or order, the number of hours
employed thereon, and the character of the work each is doing; and
(2) The nature and quantity of any materials, plant and equipment furnished
or used in connection with the performance of such work or compliance
with such determination or order, and from whom purchased or rented.
A copy of such statement will be countersigned by the Program Manager, noting
thereon any items not agreed to or questioned, and be returned to the Contractor
within two (2) days after submission.
55
The Contractor, and his subcontractors, when required by the Commissioner, or
the Comptroller, or either of them, must also produce for inspection, at the
office of the Contractor or subcontractor, any and all of his books, vouchers,
records, daily job diaries and reports, and canceled checks, showing the nature
and quantity of the labor, materials, plant and equipment actually used in the
performance of such work or in complying with such determination or order, and
the amounts expended therefor, and must permit the Commissioner and the
Comptroller to make such extracts therefrom or copies thereof as they or either
of them may desire.
In connection with such examination provided for herein, the Commissioner, upon
demand, therefor, will also produce for inspection by the Contractor such
records as the Department may have with respect to such extra or disputed work
or work performed under protest pursuant to order of the Commissioner except
those records and reports which may have been prepared for the purpose of
determining the accuracy and validity of the Contractor's claim.
Failure to comply strictly with these requirements shall constitute a waiver of
any claim for extra compensation or damages on account of the performance of
such work or compliance with such determination or order.
16.6 RESOLUTION
1. Any dispute arising out of the performance of this agreement between
the Department and the Contractor shall be resolved in accordance with
this Section of the contract, and with Section 741 of the Rules of the
Procurement Policy Board.
2. The procedure for resolving any dispute described in this Section shall
be the exclusive means of resolving any such dispute.
3. During the time the dispute is being presented, heard and considered
pursuant to this Section, the terms of the contract shall remain in
full force and effect and the Contractor shall continue to perform work
in accordance with the contract and as directed by the Agency Chief
Contracting Officer. Failure of the Contractor to continue the work as
directed shall constitute a waiver by the Contractor of any and all
claims being presented pursuant to this Section and a material breach
of contract.
4. Presentation of Disputes to Agency Head
A. The Contractor shall present its dispute in a written
submission (hereinafter referred to as a "Notice of Dispute")
to the Commissioner, hereinafter Agency Head for an initial
determination, in accordance with the provisions of this
Section.
B. Time, Form and Content of a Contractor's Notice of Dispute and
the Agency's Response. The Notice shall be submitted by the
Contractor to the Agency Head within ten (10) days of
receiving
56
notice of the determination or action which is the subject of
the dispute. This notice requirement shall not replace any
other notice requirements contained in the contract. The
Contractor shall have an additional ten (10) days to submit a
detailed written submission pertaining to the dispute. The
written submission shall include all the facts, evidence,
documents or other basis upon which the Contractor relies in
support of its positions, as well as a detailed computation
demonstrating how the amount of money claimed by the
Contractor in the dispute was arrived at. Within ten (10) days
after receipt of the detailed written submission, the Agency
Chief Contracting Officer shall submit to the Agency Head all
materials which it deems pertinent to the dispute. Thereafter,
either party may demand of the other the production of any
documents or other material not already produced which the
demanding party believes may be relevant to the dispute. The
requested party shall produce all relevant documents. Any
question as to relevancy shall be determined by application to
the Agency Head, whose decision shall be final and conclusive
as to both parties. Willful failure of the Contractor to
produce any requested material whose relevancy the Contractor
has not disputed (or following a determination by the Agency
Head that the material should be produced) shall constitute a
final waiver by Contractor of its claim.
C. Agency Head Inquiry. The Agency Head shall examine the
material and may, in his or her exclusive discretion, convene
an informal conference with the contractor and the Agency
Chief Contracting Officer and the Engineer to resolve the
issue by mutual consent prior to reaching a determination. The
Agency Head may seek such technical or other expertise as he
or she shall deem appropriate, including the use of neutral
mediators, and require any such additional material from
either or both parties as he or she deems fit. The Agency
Head's ability to render, and the effect of, a decision
hereunder shall not be impaired by any negotiations in
connection with the dispute presented whether or not the
Agency Head participated therein. Any party to the dispute or
the Agency Head may compel the participation of any other
Contractor with a contract related to project, and that
Contractor shall be bound by the decision of the Agency Head.
Any Contractor thus brought into the dispute resolution
proceeding shall have the same rights to make presentations
and to seek review as the initiating contractor.
D. Agency Head Determination. Within ten (10) days after the
receipt of all materials and information, or such longer time
as may be agreed to by the parties, the Agency Head shall
render its decision in writing and shall deliver or send a
copy of such decision to the Contractor and Agency Chief
Contracting Officer, together with a statement concerning how
the decision may be appealed. Failure to render a decision
within twenty days, or within such longer time as is agreed to
by the parties, shall be deemed rejection of the claim for
purposes of presenting the claim to the Contract Dispute
Resolution Board.
57
E. Finality of Agency Head Decision. The Agency Head's decision
shall be final and binding on both parties, unless presented
to the Contract Dispute Resolution Board pursuant to these
rules. The City may not take a petition from a decision of the
Agency Head to the Contract Dispute Resolution Board. However,
should the Contractor take such a petition, the City may seek,
and the Board may render, a determination less favorable to
the contractor and more favorable to the City than the
decision of the Agency Head.
5. Contract Dispute Resolution Board. There shall be a Contract Dispute
Resolution Board composed of:
A. the City Chief Procurement Officer or a designee; who shall be
the chairperson of the Board;
B. an employee of another City agency, having the requisite
background to consider and resolve the merits of the dispute
(who shall be selected by the City Chief Procurement Officer
from a prequalified panel of such employees); and
C. a neutral person with appropriate expertise. This person shall
be selected by the Director of the Office of Construction from
a prequalified panel of individuals approved by the
Procurement Policy Board.
6. Presentation of Dispute to the Comptroller. Before any dispute may be
brought by the Contractor to the Contract Dispute Resolution Board, the
Contractor must first present its claim to the comptroller for his or
her review, investigation and possible adjustment.
A. Time, Form and Content of Notice. Within twenty (20) days of
its receipt of a decision by the Agency Head, the Contractor
shall submit to the Comptroller a Notice of Claim regarding
its dispute with the agency. The Notice of Claim shall consist
of (i) a written statement of the substance of the dispute and
of why the dispute was wrongly decided by the Agency Head;
(ii) a copy of the written decision of the Agency Head; (iii)
copies of all materials submitted by the Contractor to the
agency, including the Notice of Dispute and the detailed
written submission pertaining to the dispute. The contractor
may not present to the Comptroller in this Notice any material
not presented to the Agency Head, except at the request of the
Comptroller.
B. Agency Response. The Comptroller shall notify the agency of
receipt of the Notice of Claim. Within five (5) business days,
the agency shall make available to the Comptroller copies of
all material submitted by the agency to the Agency Head in
connection with the dispute at issue.
C. Comptroller Investigation. The Comptroller may investigate the
claim in dispute and, in the course of such investigation, may
58
exercise all powers provided in sections 7-201 and 7-203 of
the New York City Administrative Code. In addition, the
Comptroller may demand of either party, and such party shall
provide, whatever additional material the Comptroller deems
pertinent to the claim, including original business records of
the Contractor. Such demand shall be made within fifteen (15)
days of receipt of agency material. Willful failure of the
Contractor to produce within ten (10) days any material
requested by the Comptroller shall constitute a waiver by the
Contractor of its claim. The Comptroller may also schedule an
informal conference to be attended by the Contractor, agency
representatives, and any other personnel desired by the
Comptroller.
D. Opportunity of Comptroller to Compromise or Adjust Claim. The
Comptroller shall have forty-five (45) days from his or her
receipt of all materials referred to in paragraph C above to
investigate the disputed claim. The period for investigation
and compromise may be further extended by agreement between
the Contractor and the Comptroller, to a maximum of ninety
(90) days from the Comptroller's receipt of the materials. The
contract may not present its petition to the Contract Dispute
Resolution Board until the period for investigation and
compromise delineated in this section has expired. In
compromising or adjusting any claim hereunder, the Comptroller
may not revise or disregard the terms of the contract between
the parties.
7. Petition to Contract Dispute Resolution Board. In the event the claim
has not been settled or adjusted by the Comptroller within the period
provided in subsection (6) of this section, the Contractor, within
ten (10) days thereafter, may petition the Contract Dispute Resolution
Board to review the Agency Head determination.
A. Form and Content by Contractor. The Contractor shall present
its dispute to the Contract Dispute Resolution Board in the
form of a Petition, with copies to the Agency Head,
Corporation Counsel and Comptroller. Such Petition shall
include (i) a brief written statement of the substance of the
dispute and the reason(s) the dispute was wrongly decided by
the Agency Head; (ii) a copy of the written decision by the
Agency Head; (iii) copies of all material submitted by the
Contractor to the Comptroller. Within fifteen (15) days of its
receipt of the Petition, the agency shall respond to the brief
written statement of the Contractor and make available to the
Board all material it submitted to the Agency Head and
Comptroller.
B. Further Proceedings. The Board shall permit the Contractor to
present its case by the submission of memoranda, briefs and
oral argument. The Contractor may not, however, support its
case with any documentation or other material which was not
presented to the Agency Head or the Comptroller. The Board
shall also permit the Agency to present its case in response
to the Contractor by the submission of memoranda, briefs and
oral argument. If requested by the Corporation Counsel, the
Comptroller will
59
provide reasonable assistance in the preparation of the Agency's case. The
Board, at its discretion, may seek such technical or other expertise as it shall
deem appropriate and any such additional material from either or both parties as
it deems fit.
C. Contract Dispute Resolution Board Determination. Within thirty
(30) days of the conclusion of all written submission and oral
arguments, the Board shall render a written decision resolving
the dispute. In an unusually complex case, the Board may
render its decision in a longer period of time, not to exceed
sixty (60) days, and shall so advise the parties at the
commencement of this period. The Board's decision must be
consistent with the terms of the contract between the parties.
In reaching its decision, the Board shall accord no
precedential significance to prior decisions of the Board
involving other non-related contracts.
D. Notification of Contract Dispute Resolution Board Decision.
The Board shall send a copy of its decision to the Contractor,
the Agency Chief Contracting Officer and the Comptroller.
E. Finality of Contract Dispute Resolution Board Decision. The
Board's decision of a Contractor's appeal shall be final and
binding on both parties, except to the extent that it may be
reviewable in accordance with the balance of this subsection.
The Contractor may seek review of the Board's decision solely
in the form of a challenge, made within four months of the
date of the Board's decision, in a court of competent
jurisdiction of the State of New York, County of New York,
under the procedures and rules applicable in that court, and
the City may then cross-appeal. Such review by the Court shall
be limited to the question of whether or not the Board's
decision was obtained or affected by fraud, bad faith, or
palpable error. No evidence or information shall be introduced
or relied upon in such proceeding which was not presented to
the Board in accordance with this rule. In any such proceeding
the City may seek and the Court may render a decision more
favorable to the City than that rendered by the Contract
Dispute Resolution Board.
8. Any termination, cancellation, or alleged breach of the contract prior
to or during the pendency of any proceedings pursuant to this Section
shall not affect or impair the ability of the Agency Head or Dispute
Resolution Board to make a binding and final decision pursuant to this
section.
60
ARTICLE 17 - ENTIRE AGREEMENT
This written agreement contains all the terms and conditions agreed upon by the
parties hereto, and no other agreement, oral or otherwise, regarding the subject
matter of this agreement shall be deemed to exist or to bind any of the parties
hereto, or to vary any of the terms contained herein.
61
SIGNATURES
IN WITNESS WHEREOF, the Commissioner, on behalf of the City of New York, and the
Contractor have executed this agreement as of the date first above written (on
page 1) in sextuplicate, four parts of which are to remain with the
Commissioner, one other to be filed with the Comptroller of the City, and the
sixth to be delivered to the Contractor.
NEW YORK ORGANIC FERTILIZER COMPANY
Dated: 10/10, 1997 By: /s/ XXXX X. XXXX
--------------------------------------
Vice President, Managing Partner
as _______ of Partner
Wheelabrator Water Technologies, Inc.
AND
Dated: 10/10, 1997 By: /s/ XXXX X. XXXX
--------------------------------------
Vice President
as _______ of Partner
NYOFCO Holdings Inc.
Attest: Attest:
/s/ XXXXXXXX X. XXXXXX /s/ XXXXXXXX X. XXXXXX
-------------------------------------- ------------------------------------
Secretary of Partner Managing Partner Secretary of Partner
[SEAL] [SEAL]
THE CITY OF NEW YORK
Dated: 10/21, 1997 By: /s/ XXXXX XXXXXX
------ -------------------------------------
Xxxxx Xxxxxx, for
Xxxx X. Xxxxx, Xx., P.E., Commissioner
Department of Environmental Protection
APPROVED AS TO FORM
CERTIFIED AS TO LEGAL AUTHORITY
/s/ [ILLEGIBLE]
----------------------------------
Acting Corporation Counsel
JUL 22 1997
62
