Exhibit 10.4
AGREEMENT FOR SERVICES NO. FSU/PHTO-2
BETWEEN
THE FLORIDA STATE UNIVERSITY
AND
PHYTOTECH, INC.
THIS AGREEMENT is made and entered into by and between the Florida State
University, for and on behalf of the Florida Board of Regents, a public
corporation of the State of Florida (hereinafter University) and Phytotech, Inc.
(hereinafter Contractor). For and in consideration of the mutual promises,
covenants, and obligations contained herein, the parties do agree as follows:
1. SCOPE OF SERVICES
The University hereby retains the Contractor to undertake certain
activities in connection with U.S. Department of Energy Contract Number
DE-FC21-95EW55101 (hereinafter Agency) to the University, which activities are
set forth in Attachment A.
2. CONTRACTOR RESPONSIBILITIES
The Contractor is responsible for the professional quality, technical
accuracy, timely completion, and coordination of all services and reports
furnished by the Contractor under this Agreement. The Contractor shall, without
additional compensation, correct or revise any errors, omissions, or other
deficiencies in its services and reports.
3. INDEPENDENT CONTRACTORS
By this Agreement the parties intend to establish between them the
relationship of mutually independent contractors. Each party and the officers,
employees, agents, subcontractors, or other contractors thereof shall not be
deemed by virtue of this Agreement to be the officers, employees, or agents of
the other party nor in privity of contract therewith.
4. DESIGNATION OF REPRESENTATIVES
The Contractor agrees that all activities under this Agreement will be
directed by Xx. Xxxxxx Xxxxxxxxx and will be conducted in accordance with
Attachment A. The principal contact for the University for all technical
matters relating to this
Agreement will be Xx. Xxx X. Xxxxxxx who is the Director of the Institute for
Central and Eastern European Cooperative Environmental Research. The Contract
Manager will be Xxxx X. Moertins.
5. KEY PERSONNEL
It is understood and agreed that Contractor's key technical personnel
identified above are essential to the work being performed under this Agreement
and shall not be reassigned or replaced without prior written approval by the
University.
6. EXECUTION, PERFORMANCE, AND EXTENSIONS
The Contractor shall perform its obligations in a manner which satisfies
the criteria specified in this Agreement including all exhibits, proposals, or
other materials incorporated into this Agreement by reference. This Agreement
will take effect on February 1, 1998 when it is signed by a person authorized to
bind the Contractor hereto, and by the authorized representative of the
University. The Contractor shall complete its obligations for this Agreement by
November 30, 1998. Agreement extensions shall be pursuant to a written document
which specifies the period of the extension and the criteria remaining to be met
by the Contractor, which document shall be properly executed prior to the
expiration of the Agreement period or any previous extension period.
7. FORCE MAJEURE
If the Contractor's performance under this Agreement or any obligation
hereunder is prevented, restricted or interfered with by reason of FORCE
MAJEURE, i.e., any act or condition totally beyond the Contractor's control and
without its fault or negligence, the Contractor, upon giving prompt notice to
the University, shall be excused from such performance to the extent of such
prevention, restriction, or interference; provided, however, that the Contractor
shall take all reasonable steps to avoid or remove such causes of nonperformance
and shall continue performance hereunder with dispatch whenever such causes are
removed; provided further, that if it appears that the time of delivery or
performance will be extended past the terms set forth herein, a written
extension of time will be negotiated by the parties.
8. AVAILABILITY OF FUNDS AND COMPENSATION
The State of Florida and the University's performance and obligation to pay
under this Agreement is contingent upon an annual appropriation by the
Legislature and funding by the
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Agency. The University shall be the final authority as to availability of funds
for this Agreement. Subject to availability of funds and to satisfactory
performance by the Contractor the University agrees to compensate the Contractor
on a fixed price basis in the amount of $53,696 (U.S. dollars).
Payments will be made to the Contractor upon receipt and acceptance by the
University of the deliverables listed in the Schedule of Deliverables and
Payments in Attachment A. To receive payments, the Contractor shall submit
invoices (in U.S. dollars) to the address stated on the purchase order in
accordance with the Schedule of Deliverables and Payments in Attachment A and in
sufficient detail for a proper preaudit and postaudit thereof. The Contractor
shall certify on each invoice that all deliverables covered by the invoice have
been accomplished. The certification statement shall carry an original
signature of an authorized, knowledgeable official of the Contractor.
The University agrees to pay the Contractor through electronic funds
transfer. The Contractor agrees that in the event the electronic address
provided to the University is incorrect, the University will not be held liable
for any funds lost in transit.
9. FINAL PAYMENT
Without exception, the Contractor must submit the final invoice to the
University within sixty (60) days from the expiration date of this Agreement.
If the Contractor fails to do so, all rights to payment shall be forfeited after
the deadline and the University will not honor any request submitted after the
aforementioned deadline, unless through no fault of the Contractor.
10. TRAVEL
Whenever travel costs are included in the Agreement or attachments to the
Agreement, the provisions of Section 112.061 and 240.241(13). FLORIDA STATUTES,
shall govern as to reimbursement of cost.
11. VALIDITY OF PRICING
The Contractor certifies that to the best of its knowledge and belief the
pricing data provided for this Agreement is based on accurate, complete and
current cost or pricing data. If it is determined that such data are not
accurate, complete or current, the affected price or cost shall be reduced
accordingly and the Agreement shall be modified to reflect the reduction.
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12. RETURN OF FUNDS
The Contractor agrees to return to the University any overpayments due to
unearned funds or funds disallowed pursuant to the terms of this Agreement or by
the Agency that were disbursed to the Contractor by the University. Such funds
shall be considered University funds and shall be refunded to the University
within 45 days following the time the overpayment and/or disallowance is
discovered unless otherwise authorized by the University in writing. In
addition the Contractor agrees to exclude from its xxxxxxxx any amounts
disallowed by the Agency or the University per the terms of the Agreement.
13. ASSIGNMENTS AND SUBCONTRACTS
The Contractor shall not assign the responsibility of this Agreement to
another party nor subcontract for any of the work contemplated under this
Agreement without prior written approval of the University, subject to the
approval of the Agency. No such approval by the University of any assignment or
subcontract shall be deemed in any event or in any manner to provide for the
incurrence of any obligation of the University in addition to the total dollar
amount agreed upon in this Agreement. All such assignments or subcontracts
shall be subject to the conditions of this Agreement and to any additional
conditions of approval which the University shall deem necessary.
15. INDEMNIFICATION
The Contractor shall be liable, and agrees to be liable for and shall
indemnify, defend and hold the University harmless for all claims, suits,
judgments or damages, including court costs and attorney fees, arising out of
negligence or omissions by the Contractor in the course of operations of this
Agreement.
16. INSURANCE
The responsibility for providing adequate iability insurance coverage on a
comprehensive basis for all operations undertaken by the Contractor under this
Agreement shall be that of the Contractor and shall be provided at all times
during the existence of this Agreement. Upon the execution of this Agreement,
the Contractor shall furnish the University with written verification of the
existence of such coverage upon the request of the University.
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17. CHANGES AND MODIFICATIONS
Modifications of provisions of this Agreement shall be valid when they have
been reduced to writing and duly signed by authorized parties. The parties
agree to renegotiate this Agreement if revisions of any applicable provisions or
budget allocations of the prime contract with the Agency make changes in this
Agreement necessary. The University shall be the final authority as to the
availability of funds for this Agreement due to Federal and/or State revisions
of any applicable laws, regulations, or budget allocations.
18. TERMINATION OF AGREEMENT
This Agreement may be terminated by the University upon no less than thirty
(30) days written notice, with or without cause; notice shall be delivered by
certified mail, return receipt requested, or in person with proof of delivery.
In the event of early termination by the University, the University shall pay
all costs accrued for services satisfactorily performed by the Contractor as of
the date of termination, but in no event shall the aforesaid payment exceed the
Agreement amount. All work in process will become the property of the
University and will be turned over promptly by the Contractor. Notices required
to be given in writing under this Agreement shall be addressed to:
For the University For the Contractor
------------------ ------------------
Xxxxx X. Xxxxx Xx. Xxxxxx Dushankov
Vice President for Research Research Scientist
Florida State University Phytotech
109 HMB, Innovation Park 0 Xxxx Xxxx Xxxxx, Xxxxx 0
Xxxxxxxxxxx, XX 00000-0000 Xxxxxxxx Xxxxxxxx, XX 00000
TEL: (000) 000-0000 TEL: (000) 000-0000
FAX: (000) 000-0000 FAX: (000) 000-0000
19. SEVERABILITY AND NON-WAIVER
In the event one or more provisions of this Agreement are declared invalid,
the balance of this Agreement shall remain in full force and effect. Failure of
either party to enforce any provision of this Agreement does not waive that
party's right to full performance of the provisions of the Agreement.
20. CONTINGENT FEES
The Contractor certifies that no person or agency has been employed or
retained to solicit or secure this Agreement upon an agreement or understanding
or a commission, percentage, brokerage, or contingent fee except bona fide
employees or
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agencies maintained by the Contractor for the purpose of securing business.
21. PUBLICATIONS
The Contractor shall not publish any materials funded by this Agreement
without the prior written approval of the University. All publications shall
acknowledge that the support was provided by the funds from the Agency and the
University.
22. GOVERNING LAWS AND TAXATION
This Agreement shall be governed by the laws of the State of Florida and
interpretations thereof. Additionally, the University, as an agency of the
State of Florida (USA), is entitled to the benefits of sovereign immunity
including immunity from taxation.
23. ATTORNEYS' FEES AND COST FOR ENFORCEMENT
In the event the University brings action against the Contractor at any
time during the term of this Agreement or thereafter to enforce any obligation
arising under this Agreement, and a court of competent jurisdiction determines
this Agreement or any valid portion thereof to have been breached by the
Contractor, the Contractor shall be obligated to pay the University's entire
attorneys' fees and cost of such action in addition to any damages or other
award to the University.
24. TITLE/HEADINGS
The title of this Agreement and the paragraph headings thereof are for
convenience of reference only and form no part of the terms of this Agreement.
25. OTHER TERMS AND CONDITIONS
Attachment B - Special Terms and Conditions
U.S. Dept. of Energy Assistance Regulations 10 CFR 600 are hereby
incorporated by reference. A copy of these regulations will be provided upon
request.
26. ENTIRE AGREEMENT
It is hereby understood and agreed that this Agreement and its referenced
attachments state the entire Agreement and that the parties are not bound by any
stipulations, representations,
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agreements, or promises, oral or otherwise, not printed in this Agreement.
IN WITNESS WHEREOF, the parties thereto have caused this Contract to be
executed by their undersigned officials as duly authorized.
FOR THE FLORIDA STATE UNIVERSITY FOR PHYTOTECH, INC.
for and on behalf of the Florida
Board of Regents a public
corporation of the State of
Florida
XXXX X. XXXXXX
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Xxxxx X. Xxxxx Xxxx Xxxxxx
Vice President for Research President
2/18/98
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Date Date
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