EXHIBIT 10.35
[PHOTOCOPIES/SIGNATURES)
IMC 757/767 PROJECT
AGREEMENT
Dated as of December 1, 1994
IMC 757-767 PROJECT
AGREEMENT
Table of Contents
ARTICLE I LOCATION AND DESCRIPTION OF THE 757/767
PROJECT.......................................... 8
101 Location......................................... 8
102 Description...................................... 8
ARTICLE II CONSTRUCTION OF THE 757/767 PROJECT.............. 9
201 Construction of the 757/767 Project.............. 9
ARTICLE III FINANCING........................................ 10
301 Financing........................................ 10
302 Repayment........................................ 10
303 Costs of the Project; Indiana Project
Costs....................................... 10
ARTICLE IV FINANCIAL INCENTIVES............................. 11
401 Account.......................................... 11
402 State Incentives and State Bonds................. 12
ARTICLE V ADDITIONAL COVENANTS............................. 14
501 Necessary Actions................................ 14
502 Taxes............................................ 14
503 Supplemental Disclosure.......................... 15
504 Governmental Assistance.......................... 15
505 Airport Rates and Charges........................ 16
ARTICLE VI COVENANTS OF UNITED.............................. 17
601 Construction and Operation of the 757/767
Project as a Part of the IMC
Facility.................................... 17
602 Reimbursement.................................... 18
603 Minority Business Enterprise and Women
Business Enterprise Goals................... 24
ARTICLE VII LEASE ARRANGEMENTS............................... 25
701 Master Lease Agreement........................... 25
702 Lease Terms...................................... 25
ARTICLE VIII REPRESENTATIONS AND WARRANTIES OF THE
STATE....................................... 26
801 Power and Authority.............................. 26
802 Due Authorization................................ 26
803 Due Execution.................................... 26
804 Consents and Approvals; NO Violation:............ 26
805 Operation of the 757/767 Project and
the IMC Facility:........................... 27
806 No Injunctions, Suits or Proceedings............. 27
ARTICLE IX REPRESENTATIONS AND WARRANTIES OF UNITED......... 29
901 organization and Existence....................... 29
902 Power and Authority.............................. 29
903 Due Authorization................................ 29
904 Due Execution.................................... 29
905 Consents and Approvals; No Violation............. 29
ARTICLE X INDEMNIFICATIONS; SURVIVAL OF REPRESENTATIONS
AND WARRANTIES.............................. 31
1001 Indemnification by the State..................... 31
1002 Indemnification by United........................ 32
1003 Survival of Representations, Etc................. 32
ARTICLE XI TERMINATION...................................... 33
1101 Termination...................................... 33
1102 Procedure upon Termination....................... 33
1103 Effect of Termination............................ 34
1104 Breach........................................... 34
1105 Other Rights and Remedies........................ 34
ARTICLE XII MISCELLANEOUS.................................... 35
1201 Expenses......................................... 35
1202 Further Assurances............................... 35
1203 Alternative Dispute Resolution;
Arbitration................................ 35
1204 Parties in Interest............................. 37
1205 Amendments and Waiver............................ 37
1206 Entire Agreement; Non-Merger.................... 37
1207 Headings......................................... 38
1208 Notices.......................................... 38
1209 Third Parties.................................... 39
1210 Independent Parties.............................. 39
1211 Appropriations................................... 39
1212 Non-Discrimination............................... 40
1213 Drug-Free Workplace.............................. 40
1214 Counterparts..................................... 40
1215 Governing Law.................................... 41
1216 Severability..................................... 41
EXHIBITS
IMC 757/767 PROJECT
AGREEMENT
AGREEMENT, dated as of December 1, 1994 (the "Agreement"), by
and between the State of Indiana, acting by and through its
Department of Commerce (the "State"), and United Air Lines, Inc.
("United").
RECITALS
A. In November 1991, United selected Indianapolis
International Airport (the "Airport") as the site of its new, state-
of-the-art, major aircraft maintenance facility (originally
referred to as "MOC-II and currently redesignated and referred to
as the "Indianapolis Maintenance Center" or the "IMC Facility").
B. United has previously entered into the MOC-II Agreement
dated as of November 21, 1991 (together with subsequent letter
agreement amendments dated June 15, 1992, and December 23, 1993,
the "Original Agreement") , by and among the State, the City of
Indianapolis, Indiana (the "City"), the Indianapolis Airport
Authority (the "Authority") (the State, the City and the Authority,
collectively, the "Governments") and United, pursuant to which
United has agreed to locate the IMC Facility on a specified site
(the "Site") at the Airport, subject to the terms and conditions of
the Original Agreement.
C. Subsequent to the date of and pursuant to the original
Agreement, United and the Authority have entered into a Master
Lease Agreement (together with subsequent letter agreement
amendments dated June 15, 1992, and December 23, 1993, and an
Amendment to Lease Agreements dated May 11, 1993, the "Master Lease
Agreement"), with respect to the construction, lease and operation
of the IMC Facility and a Construction Management Agreement dated
as of March 1, 1992 (the "Original Construction Management
Agreement"), as amended by an Amendment to the Construction
management Agreement, dated as of August 1, 1993 (the "Construction
Management Agreement Amendment" and, together with the Original
Construction Management Agreement, the "Construction Management
Agreement"), under which, to expedite the construction process and
to assure that the IMC Facility conforms to and complies with the
needs of United, the Authority has designated United as its
construction manager for the purpose of granting to United, to the
extent permitted by law, the responsibility and authority to act as
the agent for and on behalf of the authority with total
responsibility and authority to manage the design, construction and
equipping of the IMC Facility, including the delegation to United
of any and all approval authority with respect to the IMC Facility
to the extent allowed by Indiana law.
D. Construction of the IMC Facility began in August 1992 and
has been expeditiously pursued to the satisfaction of United and
the State. The IMC Facility was dedicated nearly a year ahead of
schedule and under budget, on March 2, 1994, with the first Boeing
737 arriving for maintenance on March 28, 1994. It is
anticipated by United that Phase I (as defined in the Master Lease
Agreement) of the IMC Facility will be completed in accordance with
the Original Agreement.
E. Each of United and the State has substantially complied
with all of its respective commitments under the Original
Agreement.
F. As originally contemplated by United and the Governments,
the IMC Facility would be dedicated to meeting the heavy
maintenance requirements of United's growing fleet of Boeing 737
aircraft.
G. Because of its strong partnership with the State, the
City and the Authority and the advantages and attractions of the
IMC Facility to and for United, United has already expanded the
types of maintenance operations to be conducted at the IMC Facility
to include certain types of lighter maintenance, and has
consequently commenced certain maintenance operations at the IMC
Facility approximately one year earlier than contemplated by the
Original Agreement.
H. Because of its strong partnership with the State, the
City and the Authority and the advantages and attractions of the
IMC Facility to and for United, United also has now proposed to
expand the number and nature of the aircraft types to be maintained
at the IMC Facility to include United's entire and growing fleet of
Boeing 757 and Boeing 767 aircraft as well as its growing fleet of
Boeing 737 aircraft.
I. United currently operates and maintains 88 Boeing 757
aircraft and 42 Boeing 767 aircraft, representing approximately 25%-
of United's fleet. The Boeing 757 aircraft, carrying 185
passengers, is one of the most efficient aircraft in commercial
aviation on a cost-per-passenger-mile basis. The Boeing 767
aircraft, carrying 210 passengers, represents one of Boeing's
newest generation of aircraft. Heavy maintenance visits for each
of the Boeing 757 and Boeing 767 fleets would be currently
scheduled to occur in the second quarter of 1996 in Indianapolis.
Since many components of the Boeing 757 and Boeing 767 aircraft are
interchangeable, an interlinking of the maintenance of the Boeing
757 and Boeing 767 aircraft fleets makes sound business sense.
J. Airframe maintenance of the Boeing 737, Boeing 757 and
Boeing 767 aircraft at the IMC Facility will bring approximately
65% of United's current total aircraft fleet to Indiana for regular
airframe maintenance operations.
K. The IMC Facility has been contemplated by the parties to
the Original Agreement and designed and constructed by United to be
flexible and expandable with respect to the nature and types of
operations and functions that can be performed. Accordingly, while
the hangars for maintenance of the Boeing 757 and Boeing 767
aircraft are substantially larger than hangars required for Boeing
737 aircraft maintenance and will each be required to be specially
designed, constructed and integrated into the IMC Facility as
contemplated in the Original Agreement, the resulting
reconfiguration of the IMC Facility is both feasible and consistent
with the nature, substance, function and intent of the IMC Facility
as contemplated by the Original Agreement.
L. Construction of the Boeing 757 and Boeing 767 maintenance
hangars will require hundreds of additional Hoosier construction
workers and tens of millions of dollars of expenditures for
additional materials and services to be purchased and procured
within Indiana.
M. The Boeing 757 and Boeing 767 maintenance hangars, when
complete, are expected and anticipated by United to result in
(i) capital additions to the IMC Project with an anticipated cost
of up to $117 million and (ii) at least 1200 new and additional
employees in good paying jobs at the IMC Facility by December 31,
1996.
N. The State believes that the expansion of the IMC Facility
through the construction and operation of the Boeing 757 and Boeing
767 maintenance hangars will allow the IMC Facility to make a
further and faster contribution to the diversification of the
Indiana economy; will provide an enhanced and earlier opportunity
for the State, Central Indiana and the City to attract other
aerospace and aerospace-related business to Indiana; will provide
more Hoosier workers with an earlier and unprecedented opportunity
to improve the quality of their skills and work; and will provide
(through the need for additional numbers of better educated, better
skilled Hoosier workers at the IMC Facility and related businesses)
the State's higher education institutions -- especially Vincennes
University, Purdue University, Indiana University-Purdue University
at Indianapolis and Indiana Vocational Technical College -- with an
even greater and earlier opportunity to help prepare these workers
for their new jobs.
0. United has already established itself as a committed
corporate citizen of Indianapolis and Indiana.
P. The State is entering into this Agreement with United in
reliance upon United's representations, warranties, covenants and
agreements, especially those with respect to the construction and
equipping of two additional hangars for Boeing 757 and Boeing 767
aircraft maintenance at and as a part of the IMC Facility at the
Airport and the employment of at least 1,200 additional highly
skilled workers in good paying jobs relating to such additional
hangars.
Q. United is entering into this Agreement with the State in
continuing reliance upon the respective representations,
warranties, covenants and agreements of the State under the
Original Agreement, and in further reliance upon the State's
additional representations, warranties, covenants and obligations
hereunder, especially those obligations to provide to United the
financial incentives provided for herein and an environment
conducive to efficiency of operation in accordance with the
Original Agreement and this Agreement.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained herein, and subject
to the terms and conditions described below, the parties hereto
agree as follows. Capitalized terms used in this Agreement and not
otherwise defined have the meanings set forth in Appendix I to the
Original Agreement.
ARTICLE I
LOCATION AND DESCRIPTION OF THE 757/767 PROJECT
101. Location. United agrees to construct and equip two
additional hangars for Boeing 757 and Boeing 767 aircraft
maintenance (the "757/767 Project") at and as an integral part of
the IMC Facility on the Site at the Airport as defined and
described in the Original Agreement. As an integral part of the
IMC Facility, the 757/767 Project will be subject to the terms and
conditions of the Master Lease Agreement.
102. Description. The 757/767 Project is generally described
on Exhibit A hereto. The parties acknowledge and agree that
nothing contained herein or in Exhibit A hereto shall prevent
United from making changes to the 757/767 Project description
provided that such description changes do not change United's
commitments as expressed in this Agreement.
ARTICLE II
CONSTRUCTION OF THE 757/767 PROJECT
201. Construction of the 757/767 Project.
(a) The State acknowledges and agrees generally that Article
II of the Original Agreement shall control, to the extent
applicable, the construction and equipping of the 757/767 Project,
and acknowledges and agrees specifically, but without limitation,
that (i) the Authority has committed under the Original Agreement
to confer upon United complete discretion with respect to the
selection of, and contracting for, professional services, including
program management, architectural design, engineering services and,
to the extent permitted by law, all additional non-contractual
issues and matters and (ii) United will, at United's election,
construct and equip the 757/767 Project pursuant to and in
accordance with United's rights, responsibilities and obligations
under the terms and conditions of the Construction Management
Agreement.
(b) In addition to this Section 201, the State shall, to the
extent permitted by law, continue to support and reasonably
cooperate with United in seeking administrative or legislative
relief or advantage with respect to the expedited construction of
the 757/767 Project and continued operation of the IMC Facility.
ARTICLE III
FINANCING
301. Financing. United hereby represents and warrants that
it is proceeding to finance a portion of the Costs of the Project,
as hereinafter defined, including Costs of the Project relating to
the 757/767 Project, through the issuance and sale by or through
the Authority of one or more series of bonds payable from lease
rentals under the Master Lease Agreement and constituting Special
Facility Bonds, as defined and described in and subject to Section
3.01(a) of the Original Agreement.
302. Repayment. United shall be responsible for paying all
debt service on the Special Facility Bonds by making the lease
rental payments specified in the Master Lease Agreement, as
supplemented in connection with the issuance of Special Facility
Bonds. United acknowledges and agrees that the State shall have no
liability with respect to the payment of principal of and premium
(if any) and interest on the Special Facility Bonds or United's
obligations to make rental payments as described in the Master
Lease Agreement, as so supplemented.
303. Costs of the Project; Indiana Project Costs. For
purposes of this Agreement:
a) "Costs of the Project" shall have the meaning set forth
in Section 3.03(a) of the Original Agreement.
b ) "Indiana Project Costs" shall have the meaning set
forth in Section 3.03(b) of the Original Agreement.
ARTICLE IV
FINANCIAL INCENTIVES
401. Account.
(a) In accordance with Section 4.01 of the original
Agreement, the proceeds of bonds as described in Sections 301 and
402 of this Agreement shall be or continue to be deposited in one
or more trust accounts with a trustee bank or banks permitted to
serve as a trustee for the particular bond issue under Indiana law,
acceptable to United, pursuant to a trust indenture, resolution or
ordinance for such bonds (all such trust accounts, collectively,
the "Account"). All deposits in the Account and any investment
income thereon (subject to any required rebate to the federal
government) shall be available at the direction of United solely to
fund the Costs of the Project as provided in Section 303 hereof and
the provisions set forth in the Master Lease Agreement and the
Construction Management Agreement. The funds in the Account shall
be invested by or on behalf of the State or another entity issuing
on behalf of the State (the "Issuer") at the direction of United in
obligations in which the Issuer is legally authorized to invest
such funds. For the purposes, among others, of complying with
State law and maintaining the tax-exemption of the Special Facility
Bonds and the State Bonds (as defined herein), funds deposited into
the Account may be segregated; set aside in separate accounts as
may be required under any trust indenture, resolution or ordinance
providing for the issuance of the Special Facility Bonds or the
State Bonds; or accounted for otherwise.
(b) On or before the 15th day of each month following the
initial deposit into the Account pursuant to this Article IV and
until all funds in the Account have been expended, United shall
cause to be provided to the Issuer, on behalf of the State, records
of all deposits to and payments from the Account, together with
appropriate documentation therefor. United shall also provide a
designee of the State, reasonably acceptable to United, with
reasonable access during normal business hours to United's books
and records relating to all payments made from the Account.
(c) United acknowledges and agrees that, with respect to the
issuance and sale of the State Bonds, (i) certain actions will be
required to be taken by various State governmental entities to
effect the issuance and sale of such State Bonds; (ii) the
conditions customarily included in bond purchase agreements with
respect to such State Bonds will be required to be satisfied; and
(iii) United will cooperate fully with, and provide sufficient
information to, the Issuer to effectuate the Issuer's ability to
issue and sell the State Bonds on a tax-exempt basis. United and
the State acknowledge and agree to cooperate and consult with each
other regarding all such activities.
402. State Incentives and State Bonds.
(a) Subject to the actions and conditions referred to in
Section 401 (c) having been taken or satisfied, as the case may be,
the Issuer shall issue and sell a special series of tax-exempt
revenue bonds (the "State Bonds"), the principal of and premium (if
any) and interest on which, and all other costs and expenses
relating thereto (except as provided in Section 1201 hereof), shall
be payable solely from available funds of the Issuer, including
lease rentals payable from any State appropriations which may be
made by the Indiana General Assembly. As soon as practicable, but
in any event not later than April 15, 1995, unless a longer period
of time is agreed to by United, the State shall cause the Issuer to
deposit $26 million, in cash, from the proceeds of the issuance of
the State Bonds into the Account. United acknowledges and agrees
that the State Bonds will be issued by the Indiana Transportation
Finance Authority or such other Issuer as the State shall cause to
issue such bonds.
(b) The State covenants and agrees that United shall have no
liability with respect to the issuance, sale or repayment of the
State Bonds, or any other obligations with respect thereto, and no
portion of the IMC Facility, including the 757/767 Project, shall
be pledged, directly or indirectly, to secure any obligations
relating to the State Bonds.
ARTICLE V
ADDITIONAL COVENANTS
501. Necessary Actions. The State hereby covenants and
agrees to use its best efforts to cause each of its affected and
applicable agencies, authorities, boards and commissions and other
entities to take all actions necessary or appropriate to effect to
the fullest extent possible all of the covenants of the State
contained in this Agreement as soon as practicable after-the date
hereof.
502. Taxes.
a) The State affirms its acknowledgment and agreement under
Section 5.04 of the Original Agreement to the effect that United
(i) has initially selected the Airport as the site of the IMC
Facility, and has now selected the Airport as the site for the
inclusion within the IMC Facility of the 757/767 Project, in
reliance upon the current State and local governmental tax
structures and with the expectation that the fundamental policies
underlying such tax structures would not change significantly in
the future; and (ii) has entered into this Agreement in continuing
reliance upon the representations and warranties made by the State
under Section 5.04 of the Original Agreement concerning State and
local property, sales and use and corporate income taxes.
b) The State affirms its acknowledgment and agreement under
Section 5.04 of the Original Agreement that changes in current
State and local taxes may result in the creation of fees and taxes
that could produce results that are, in effect, discriminatory
against United in contravention of the understandings of the
parties hereto and the parties to the Original Agreement. In
furtherance thereof, the State covenants and agrees to the extent
permitted by law that it will not seek or support any changes in
such taxes that are, in effect, limited to the airlines or to their
suppliers.
(c) United acknowledges that the State has supported and
cooperated, in accordance with Section 5.04(c) of the Original
Agreement, with United in obtaining legislative relief from those
provisions of Indiana's corporate tax law that could have resulted
in additional corporate tax liability for United.
503. Supplemental Disclosure. The State and United shall
have, and in accordance with Section 5.06 of the Original
Agreement, shall continue to have, the continuing obligation to
notify the other promptly of any event, circumstance or discovery
leading to a reasonable conclusion that any representation,
warranty, covenant or agreement contained in this Agreement is
incomplete, inaccurate or not complied with in any material
respect.
504. Governmental Assistance.
(a) In addition to the obligations contained in Section 2.01
of the Original Agreement and as an affirmation of Section 5.07 of
the Original Agreement, the State shall continue to cooperate in
good faith with United and with the City, the Authority and any
other affected governmental entity or agency to assist United in
obtaining or maintaining in effect all federal, State and local
licenses, permits, approvals and authorizations under any and all
applicable laws, ordinances, regulations, rules, orders or decrees
that are necessary, in the reasonable judgment of United, to
construct, equip, utilize and operate the IMC Facility, including
the 757/767 Project, as expeditiously as possible.
(b) To continue to facilitate the foregoing commitment, the
State shall continue to employ an expedited review process with
respect to all aspects of the IMC Facility, including the 757/767
Project, through which process United will submit all documentation
required for any license, permit, approval or authorization
necessary or appropriate to be obtained from or maintained with the
State or any agency or instrumentality thereof.
505. Airport Rates and Charges. The State affirms its
agreement and understanding under Section 5.08 of the original
Agreement that none of the costs and expenses to or for the account
of the State or any other governmental entity in connection with
the provision of the incentives pursuant to Article IV of the
Original Agreement or Article IV hereof shall or should in any
manner be paid, directly or indirectly, from airport rates, charges
or landing fees paid by United or any other airline under its
respective Agreement and Lease of Premises with the Authority.
ARTICLE VI
COVENANTS OF UNITED
601. Construction and Operation of the 757/767 Project as a
Part of the IMC Facility.
(a) United agrees to locate, construct and equip (or cause to
construct and equip) the 757/767 Project as an integral part of the
IMC Facility at the Airport.
(b) During the term of the Master Lease Agreement, United
will utilize the IMC Facility, including the 757/767 Project, as a
major aircraft maintenance facility.
(c) United agrees that an aggregate of at least 1,200 full
time employees (the "757/767 Employees") will be employed by United
at the 757/767 Project within the IMC Facility on or before
December 31, 1998.
(d) Subject to the provisions. of Section 602 of this
Agreement, the agreements by United set forth in the foregoing
paragraph (c) of this Section 601 are separate from and in addition
to the covenants of United set forth in Section 6.01(c) of the
Original Agreement.
(e) The estimated annual payroll and benefits for the United
employees allocable to the 757/767 Project within the IMC Facility
are expected to aggregate more than $54 million by December 31,
1997.
(f) Subject to the compliance by the State, the City and the
Authority with Section 2.01 and Section 5.07 of the Original
Agreement, United agrees to construct the 757/767 Project as an
integral part of the IMC Facility.
(g) United continues to be committed to assisting the State
in its economic development efforts and, in this regard, will
continue to use its best efforts to cooperate with the State in an
effort to induce other private entities to locate significant new
economic development projects related to the IMC Facility in
Indiana.
602. Reimbursement.
(a) United acknowledges and agrees that the State has entered
into this Agreement and has agreed to provide the incentives set
forth herein, in part, in reliance upon the covenants of United set
forth in Section 601 hereof. In furtherance thereof, the parties
hereto agree that if any of such covenants are not fulfilled, the
following provisions shall serve as the sole and exclusive remedy
of the State, subject to Article XI of this Agreement:
(i) In the event that on or before December 31,
2001, the aggregate Indiana Project Costs, including the
Indiana Project Costs expended or allocated for the
construction and equipping of the 757/767 Project, do not
equal or exceed $800 million (in actual dollars
expended), United (A) affirms its obligations under
Section 6.02 (a) (i) of the Original Agreement to pay to
the State and the other Governments, as defined in the
Original Agreement, the amount determined in the manner
and paid in accordance with Section 6.02 (a) (i) of the
Original Agreement; and (B) shall make an additional
payment to the State of an aggregate amount equal to the
product of (1) a fraction, the numerator of which shall
be $800 million minus the actual Indiana Project Costs
accrued or expended through December 31, 2001, and the
denominator of which shall be $800 million; times (2) a
fraction, the numerator of which shall be $26 million and
the denominator of which shall be three.
(ii) In the event that during the calendar year
ending December 31, 2004 (or any earlier calendar year
selected by United in its sole discretion), there are not
at least 7,500 Facility Employees, including the 757/767
Employees, United shall pay to the State an aggregate
amount equal to the product of (X) a fraction, the
numerator of which shall be 7,500 minus the actual number
of Facility Employees for the year ending December 31,
2004 (or such earlier year selected by United), and the
denominator of which shall be 1,200; times (Y) $26
million; times (Z) a fraction, the numerator of which
shall be two and the denominator of which shall be three.
In the event that a calculation is required to be made
under this clause (ii) and the actual number of Facility
Employees for the year ending December 31, 2004 (or such
earlier year selected by United) is less than 6,300, then
the first sentence of this clause (ii) shall not apply
and United shall pay to the State the sum of
$17,333,333.33. United further acknowledges that it may
also be liable to make payments to the State and the
other Governments as set forth in Section 6.02(a) (ii) of
the Original Agreement.
(iii) Notwithstanding clause (ii) above, in the
event that for the calendar year referred to in clause
(ii) above, the number of Facility Employees is less than
7,500, for purposes of determining whether United shall
be required to make any payment to the State pursuant to
such clause (ii), the number of Facility Employees shall
be recalculated so that such number will equal the sum of
(A) the number of Facility Employees (including 757/767
Employees) for such calendar year, plus (B) the number of
Net New United Employees for such calendar year, plus (C)
the number of Ancillary Employees for such calendar year.
(iv) For purposes of this Section 602:
(W) "Facility Employees" means the
average number of all Full-Time United
Employees and Full-Time Equivalents employed at
the Facility during any year.
(X) "Full-Time United Employees and
FullTime Equivalents" shall mean all Full-Time
United Employees and Full-Time United
Equivalents; "Full Time United Employees"
means any United employee who works (including
all vacation time, sick time and compensatory
time) an average of 35 hours or more per week
of employment; provided, however, that any
employees covered by a collective bargaining
agreement shall be deemed to satisfy this
requirement if they work (including all
vacation time, sick time and compensatory
time) at least the minimum number of hours
required of full-time employees under the
applicable terms of their respective
collective bargaining agreements; and "FullTime
United Equivalents" means (i) with respect to
United employees covered by a collective
bargaining agreement who are not Full Time
United Employees, the aggregate number of hours
per week during any relevant period worked
(including all vacation time, sick time and
compensatory time) by all such employees
divided by the number obtained by multiplying
the minimum number of hours per week required
of full-time employees under the applicable
collective bargaining agreement by the number
of weeks in such period; or (ii) with
respect to all other employees that are not
Full-Time United Employees, the aggregate
number of hours worked per week (including all
vacation time, sick time and compensatory time)
during any relevant period by all such
employees, divided by the number obtained by
multiplying 35 times the number of weeks in
such period.
(Y) "Net New United Employees" shall mean
the average number of all Full-Time United
Employees and Full-Time Equivalents (other
than Facility Employees) employed in the
State in any year in excess of the average
number of Full-Time United Employees and Full
Time Equivalents employed in the State during
the year ending December 31, 1991; provided,
however, that Net New United Employees shall
not include any employee of a business
acquired by United (by merger or otherwise),
after the date hereof who prior to such
acquisition worked in the State . for such
business.
(Z) "Ancillary Employees" shall mean the
average number of full-time employees employed
in the State during any year of all
corporations or other entities which conduct
business falling within Standard Industry
Group No. 372 and all corporations engaged in
the aircraft or aeronautical industries which
conduct businesses falling within Standard
Industry Classification Nos. 3592, 3694, 3714,
3812, 4581, or 8731 and such other Standard
Industry Classification Numbers as the State
and United agree to, and which directly serve
the IMC Facility, but only to the extent that
such employee's job has been created by such
business since November 15, 1991. Without
limiting the foregoing, United and the State
agree that the term "Ancillary Employees"
hereunder shall include employees of non United
owned or controlled entities working on a full-
time basis at the IMC Facility and performing
functions or services which were or would
reasonably have been contemplated to be
performed or carried out by United employees
as of the time of execution of the Original
Agreement.
(b) For purposes of Paragraph (a) of this Section 602, (i) no
later than March 31, 2002, United shall deliver to the State a
certificate (a "Determination Certificate") of an appropriate
officer of United, certifying as to the aggregate Indiana Project
Costs on December 31, 2001 or such earlier time selected by United
(in actual dollars expended) ; and (ii) no later than March 31,
2005, United shall deliver to the State a Determination Certificate
of an appropriate officer of United, certifying as to the actual
number of Facility Employees during the year ending December 31,
2004, or such earlier year selected by United. All amounts used
for such computation shall be determined according to United's
internal books and records, except that the number of Ancillary
Employees shall be determined pursuant to good faith negotiations
between United and the State consistent with Section 6.02 of the
Original Agreement or certificates of United and employers of such
Ancillary Employees. For purposes of reviewing any Determination
Certificate, a designee of the State acceptable to United will
have the right, during normal business hours, to review the books
and records of United related solely to the matters set forth
therein. Any Determination Certificate shall be deemed conclusive
of the facts set forth therein and shall be final and binding on
the parties hereto, unless challenged by the State within 45 days
following delivery.
(c) In the event that United is required to reimburse the
State pursuant to Paragraph (a) of this Section 602, United shall
make such payment within 45 days following the date that the
applicable Determination Certificate provided pursuant to
Paragraph (b) of this Section 602 becomes final and binding on the
State, in cash, by wire transfer to a trust account designated by
the State in writing at least three business days prior to any
required payment date. Any such payment shall be separate from and
in addition to any payment that may be required to be made by
United to the State and the other Governments pursuant to
Section 6.02 of the Original Agreement. Any such payment made to
the State pursuant to the Determination Certificate described
under Section 602(b)(i) shall be held by the State in escrow under
mutually agreeable terms until December 31, 2004, and shall be
paid to the State at such time only in the event that Section 602
(e) does not apply.
(d) The parties hereto acknowledge and agree that any amount
required to be paid by United to the State pursuant to this
Section 602 represents a good faith estimate of damages to the
State as a result of United's failure to fulfill the covenants
contained herein, and is not intended to be a penalty imposed upon
United.
(e) Notwithstanding any other provision of this Section 602,
in the event that for any calendar year ending on or before
December 31, 2004, the number of Facility Employees, including the
757/767 Employees, equals or exceeds 7900, the provisions of this
Section 602 shall terminate and United shall have no liability
hereunder or under Section 6.02 of the Original Agreement pursuant
to Section 6.02(e) thereof. Any amounts which have previously been
paid to the State by United and held in escrow pursuant to
Section 602(c) shall be thereupon returned to United, together with
any interest earned on such amounts during the period of escrow
investment.
(f) Nothing in this Agreement generally, or in Section 601
or this Section 602 of this Agreement in particular, shall be
deemed in any way to modify, amend, alter or affect any obligation,
liability or covenant of United set forth in the Original Agreement
with respect to the City or the Authority, or any obligation,
liability or covenant of the City or the Authority set forth in the
Original Agreement with respect to United. Neither the City nor the
Authority shall be, or deemed to be, a third-party beneficiary for
any purposes under this Agreement.
603. Minority Business Enterprise and Women Business
Enterprise Goals. United and the State affirm the Minority
Business Enterprise and Women Business Enterprise goals and
provisions of Section 6.03 of the Original Agreement.
ARTICLE VII
LEASE ARRANGEMENTS
701. Master Lease Agreement. The 757/767 Project shall be
an integral part of and shall be included for all purposes with the
IMC Facility leased to United pursuant to the Master Lease
Agreement.
702. Lease Terms. Interests in the IMC Facility, including
the 757/767 Project, financed with the proceeds of the State Bonds
shall be leased or subleased by the Authority to United pursuant
to the Master Lease Agreement. United shall have no liability for
any additional amounts required with respect to the lease of the
portions of the IMC Facility, including the 757/767 Project,
financed with the State Bonds except for its obligations to
maintain and operate the IMC Facility.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF THE STATE
The State represents and warrants to United as follows:
801. Power and Authority. The State has all requisite power
and authority to enter into this Agreement and to perform its
obligations under this Agreement.
802. Due Authorization. Except as otherwise set forth
herein, all acts and other proceedings required to be taken by
the State to authorize the execution, delivery and performance of
this Agreement have been duly and properly taken.
803. Due Execution. This Agreement has been duly executed
and properly delivered by the State and constitutes a valid and
binding obligation of the State, enforceable against the State in
accordance with this Agreement's terms, subject to (i) bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting
creditors, rights generally heretofore or hereafter enacted; and
(ii) the exercise of judicial discretion in accordance with the
general principles of equity; and (iii) the valid exercise of the
constitutional powers of the State and the United States of
America.
804. Consents and Approvals; No Violation. The execution and
delivery of this Agreement by the State does not, and the
consummation by the State of the transactions contemplated hereby
and compliance by the State with the terms hereof will not:
(a) conflict with or result in a violation of (i) any
provision of any instrument governing the State (including, without
limitation, the State Constitution and any State enabling
legislation) or (ii) any judgment, order, writ, injunction, decree,
statute, law, ordinance, rule or regulation applicable to the
State; or
(b) conflict with or result in or cause any material breach,
violation of or default under any material contract, agreement,
other instrument, commitment, arrangement, or understanding or
grant to which the State is a party or which is otherwise
applicable to the State.
805. Operation of the 757/767 Project and the IMC Facility.
There is no law, ordinance, regulation or rule of the State enacted
or, to the best knowledge of the State, proposed that would
prohibit United from fully utilizing the IMC Facility, including
the 757/767 Project, on a 24-hour-a-day, seven-day-a-week basis in
the manner currently contemplated.
806. No Injunctions, Suits or Proceedinqs.
(a) None of the commitments of the State to provide benefits
to United hereunder is the subject of any injunction, suit,
proceeding or other challenge.
(b) Except as disclosed to United as of the date hereof, the
State has not received any communication, whether from any member
of the Indiana General Assembly, a citizens' group, taxpayer or
otherwise, with respect to any proposed or current suit,
proceeding, legislation with respect to or challenge to this
Agreement or any of the transactions contemplated hereby. The State
agrees to inform United of any such communications and, subject to
the attorney-client privilege, to provide United with copies of all
such communications whenever received.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF UNITED
United hereby represents and warrants to the State as follows:
901. Organization and Existence. United is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware. United has all requisite corporate
power and authority to own, lease and operate its properties and
to carry on its business as now being conducted.
902. Power and Authority. United has all requisite corporate
power and authority to enter into this Agreement and to perform its
obligations under this Agreement.
903. Due Authorization. All corporate acts and other
proceedings required to be taken by United to authorize the
execution, delivery and performance of this Agreement have been
duly and properly taken.
904. Due Execution. This Agreement has been duly executed
and properly delivered by United and constitutes the valid and
binding obligation of United, enforceable against United in
accordance with its terms, subject to (i) bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors',
rights generally heretofore or hereafter enacted and (ii) the
exercise of judicial discretion in accordance with the general
principles of equity.
905. Consents and Approvals; No Violation. The execution and
delivery of this Agreement by United does not, and the consummation
of the transactions contemplated hereby and compliance with the
terms hereof will not, (a) conflict with or result in a violation
of (i) its Certificate of Incorporation or By-laws; or (ii) any
judgment, order, writ, injunction, decree, statute, law, ordinance,
rule or regulation applicable to United; or (b) conflict with, or
result in or cause any material breach, violation of or default
under, any material contract, agreement, other instrument,
commitment, arrangement or understanding to which United is a party
or which otherwise applies to United.
ARTICLE X
INDEMNIFICATIONS; SURVIVAL OF
REPRESENTATIONS AND WARRANTIES
1001. Indemnification by the State. To the fullest extent
permitted by law and subject to Section 1211 hereof, the State
agrees to indemnify, defend and hold harmless the United Parties
from and against any and all losses, liabilities, expenses
(including attorneys and other professionals' fees and expenses),
claims and damages asserted against, resulting to, imposed upon or
suffered by the United Parties or any of them to the extent arising
from or attributable to (i) any breach of any representation or
warranty by the State contained in this Agreement, (ii) any breach
or nonperformance of any covenant or agreement of the State
contained in this Agreement, (iii) any action, suit or proceeding
relating to or challenging any of the obligations of the State set
forth in this Agreement, or (iv) the issuance, sale or repayment
of the State Bonds. Although the State's obligations under this
Section 1001 are subject to Section 1211 hereof, the State
covenants that it will do all things lawfully within its power to
obtain and maintain funds from which to meet its obligations under
this Section 1001, including, without limitation, making separate
provision for any such obligations under this Section 1001 in each
budget, or adjustments thereto, submitted to the General Assembly
of the State for the purpose of obtaining appropriations; using
its bona fide best efforts to have such portion of the State's
budget approved; and exhausting all available reviews and appeals
in the event such portion of the State's budget is not approved.
1002. Indemnification by United. To the fullest extent
permitted by law, United agrees to indemnify, defend and hold
harmless the State from and against any and all losses,
liabilities, expenses (including attorneys' and other
professionals' fees and expenses), claims and damages asserted
against, resulting to, imposed upon or suffered by the State to the
extent arising from or attributable to (i) any breach of any
representation or warranty of United contained in this Agreement,
(ii) any breach or nonperformance of any covenant or agreement of
United contained in this Agreement, or (iii) any action, suit or
proceeding relating to or challenging any of the obligations of
United set forth in this Agreement.
1003. Survival of Representations, Etc. The parties agree
that each of the representations, warranties, covenants and
agreements contained herein shall survive the consummation of the
transactions contemplated hereby.
ARTICLE XI
TERMINATION
1101. Termination. Notwithstanding any other provision
of this Agreement, this Agreement may be terminated and the
transactions contemplated hereby may be abandoned:
(a) by mutual written agreement of the parties hereto;
(b) by the State, in the event of a material breach by United
of its obligations set forth in Section 601 (a), (b), (c), (f) or
(g) hereof which is not cured within forty-five (45) days of
written notice thereof;
(c) by United, in the event of (i) a material breach by the
State of its obligations set forth in Sections 501 or 1211 hereof,
which is not cured within forty-five (45) days of written notice
thereof or (ii) in the event that the financial incentives set
forth in Section 402 hereof of this Agreement have not been
provided within the time period set forth in Section 402 hereof;
and
(d) unless earlier terminated, this Agreement shall
automatically terminate and be of no further force or effect on
November 22, 2050.
1102. Procedure upon Termination. In the event of the
termination of this Agreement and the abandonment of the
transactions contemplated hereby pursuant to Section 1101 hereof,
written notice thereof shall forthwith be given by the party so
terminating to the other party, and this Agreement shall terminate,
and the transactions contemplated hereby shall be abandoned,
without further action by the State or United hereunder.
1103. Effect of Termination. If this Agreement is
terminated pursuant to Section 1101 hereof:
(a) Except as provided in Section 1104 hereof, neither the
State nor United shall have any liability hereunder to the other
party hereto;
(b) United shall have no obligation to reimburse the State
for amounts expended from the Account pursuant to Section 401 of
this Agreement; and
(c) The provisions of Sections 1001, 1002, 1003, 1104 and
1201 hereof and this Section 1103 shall survive any termination of
this Agreement.
1104. Breach. In no event shall termination of this
Agreement limit or restrict the rights and remedies of either party
hereto against the other party to the extent that such other party
has willfully breached the terms of this Agreement prior to
termination hereof.
1105. Other Rights and Remedies. The right of any party
hereto to terminate this Agreement shall not in any manner affect
or limit such party's right to exercise any other right or remedy
it may have in addition to its right of termination hereunder, or
any right or remedy it may have under the Original Agreement.
ARTICLE XII
MISCELLANEOUS
1201. Expenses. Except as otherwise provided herein, each
party shall pay all fees and expenses incurred by it in connection
with the transactions contemplated by this Agreement. United
acknowledges that the costs incurred in connection with the
issuance of the State Bonds may be disbursed from the proceeds
thereof, so long as the amount required to be deposited into the
Account pursuant to Section 402 of this Agreement is so deposited.
1202. Further Assurances. From time to time, either party
may request the other party to execute and deliver to the
requesting party such documents and to take such other action as
the party may reasonably request in order to consummate more
effectively the transactions contemplated herein.
1203. Alternative Dispute Resolution; Arbitration.
(a) If a dispute arises between the parties relating to this
Agreement, the parties agree, to the fullest extent permitted by
law, to use the following procedure to resolve the dispute:
(i) A meeting shall be held promptly between the
parties, attended by individuals with decision-making
authority regarding the dispute, to attempt in good faith
to negotiate a resolution of the dispute;
(ii) If, within 15 days after that meeting, the
parties have not succeeded in negotiating a resolution
of the dispute, they hereby agree to submit the dispute
to mediation in accordance with the Commercial Mediation
Rules of the American Arbitration Association and to bear
equally the costs of the mediation;
(iii) The parties will jointly appoint a mutually
acceptable mediator, seeking assistance in this regard
from the American Arbitration Association if they are
unable to agree upon this appointment within 15 days from
the conclusion of the negotiation period; and
(iv) The parties agree to participate in good faith
in the mediation and negotiations related thereto for a
period of 30 days. If the parties are not successful in
resolving the dispute through the mediation, then the
parties agree that, to the fullest extent permitted by
law, the dispute shall be settled by binding arbitration
in accordance with the procedures set forth below.
(b) If any dispute cannot be settled in accordance with the
procedures set forth above, to the fullest extent permitted by law,
then:
(i) Either the State or United may request
arbitration of the dispute by giving the other party
written notice that specifies the matter sought to be
arbitrated and designates a person to act as arbitrator;
(ii) within 10 business days after receipt of that
notice, the State or United, as the case may be, shall
send written notice to the party requesting arbitration
and designating a second person to act as arbitrator;
(iii) Within 10 business days after receipt of the
written notice of the second arbitrator, the two
arbitrators, by mutual agreement, shall designate a third
arbitrator. If the time provided in subparagraph (ii)
above expires before the written notice of the second
arbitrator is sent to the party requesting arbitration,
the first arbitrator shall designate the two additional
arbitrators.
(iv) Promptly after the third arbitrator's
designation, but in no event later than 30 days
thereafter, at a date to be set by the arbitrators, an
arbitration hearing shall be held in Indianapolis,
Indiana. The Commercial Arbitration Rules of the
American Arbitration Association shall apply at the
arbitration hearing, and the three arbitrators shall
allow the State and United to each present, in the
presence of the other party, its case, including opening
statement, evidence, witnesses, if any, and summation.
The arbitrators shall render their decision within 30
days of the hearing; and
(v) The decision and award, if any, of the majority
of the arbitrators shall be final, binding and
nonappealable as to the parties hereto. Any award shall
provide for the entire costs and expenses of the
arbitration, including reasonable attorney's fees, by the
losing party where it is determined that the arbitration
has been made necessary by the refusal or failure of that
party to negotiate in good faith the matter that is the
subject matter of the arbitration. If no such
determination is made, each party shall bear its own
costs and expenses. Judgment may be entered on any award
so rendered in any court of competent jurisdiction.
1204. Parties in Interest. This Agreement shall be binding
upon, inure to the benefit of and be enforceable by the respective
successors and permitted assigns of the parties hereto. The rights
and obligations of the State and United hereunder may not be
assigned without the consent of the other party.
1205. Amendments and Waiver. This Agreement may be amended
only by a written instrument executed by both of the parties. Any
condition precedent to a party's obligations hereunder may be
waived in writing by that party to the extent permitted by law.
1206. Entire Agreement; Non-Merger. This Agreement and the
schedules and exhibits hereto, together with the other agreements
referred to herein, contain the entire understanding of the parties
hereto with respect to their subject matter. This Agreement
supersedes all prior agreements and understandings, oral and
written, with respect to the subject matter set forth herein,
provided that (a) the Original Agreement shall not be deemed to be
merged into or modified or amended or superseded by this Agreement,
and (b) this Agreement is and shall be deemed to be supplemental
only to the Original Agreement with respect to the additional
rights and obligations of United and the State set forth herein.
Except as so supplemented by the provisions set forth herein, the
Original Agreement shall continue in full force and effect with
respect to the rights, title, interests and obligations of the
State and United.
1207. Headings. The article and section headings contained
in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
1208. Notices. All notices, claims, certificates, requests,
demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally or
mailed (registered or certified mail, postage prepaid, return
receipt requested) as follows:
If to the State:
Indiana Department of Commerce
Office of the Lieutenant Governor
Indianapolis, Indiana 46204
Attention: Frank O'Bannon, Director
If to United:
United Air Lines, Inc.
1200 Algonquin Road
Elk Grove Township, Illinois 60007
Attention: Stuart Oran, Esq.
Executive Vice President
and General Counsel
With a copy to:
Larry Clark, Vice President - Properties
and Facilities
or to such other address as the person to whom notice is to be
given may have previously furnished to the other party in writing
in the manner set forth above; provided, that notice of a change
of address shall be deemed given only upon receipt.
1209. Third Parties. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give to any entity
or person other than the parties hereto and their successors or
permitted assigns any rights or remedies under or by reason of this
Agreement.
210. Independent Parties. With respect to the State and
United, each party, in the performance of this Agreement, will be
acting in an individual capacity and not as an agent, employee,
partner, joint venturer or associate of one another. The employees
or agents of the State shall not be deemed or construed to be the
employees or agents of United, and the employees or agents of
United shall not be deemed or construed to be the employees or
agents of the State for any purposes whatsoever. Neither United
nor the State will assume any liability for any injury (including
death) to any persons, or any damage to any property, arising out
of the acts or omissions of the agents, employees or subcontractors
of the other party.
1211. Appropriations. The payment and performance
obligations of the State under Section 1001 of this Agreement are
subject to the appropriation and the availability of funds and, in
this regard, this Agreement may be terminated by United, in whole
or in part, if the State Budget Director makes an official written
determination that funds are not appropriated or otherwise
available to support continuation of performance of the State under
this Agreement. An official determination by the State Budget
Director that funds are not appropriated or otherwise available to
support continuation of performance shall be final and conclusive.
1212. Non-Discrimination. United and its subcontractors, if
any, shall not discriminate against any employee or applicant for
employment in the performance of this Agreement, with respect to
the hire, tenure, terms, conditions or privileges of employment or
any matter directly or indirectly related to employment because of
such person's race, color, religion, sex, handicap, national origin
or ancestry.
1213. Drug-Free Workplace. United hereby covenants and
agrees (a) to continue to make a good faith effort to provide and
maintain during the term of this Agreement a drug-free workplace
at the IMC Facility; and (b) that it will give written notice to
the State within 10 days after receiving actual notice that any
Facility Employee has been convicted of a criminal drug violation
occurring at the Site. In addition, United hereby acknowledges that
the entry of the State into this Agreement is expressly subject to
the Drug-Free Workplace Certificate, attached as Exhibit B hereto.
United covenants to undertake its best efforts to comply with this
Section 1213 and the representations of United set forth in the
Drug-Free Workplace Certificate.
1214. Counterparts. This Agreement may be executed
simultaneously in several counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument.
1215. Governing Law. This Agreement shall be governed by,
and construed and enforced in accordance with, the laws of the
State of Indiana, without regard to the conflicts of law principles
thereof.
1216. Severability. In the event that any clause, portion
or section of this Agreement is unenforceable or invalid for any
reason, as long as the economic benefits expected to be derived by
each of the parties are not materially affected, such
unenforceability or invalidity shall not affect the enforceability
or validity of the remainder of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
STATE OF INDIANA, ACTING BY AND
THROUGH ITS DEPARTMENT OF
COMMERCE
By: /s/ Frank O'Bannon
Frank O'Bannon, Director
APPROVED:
DEPARTMENT OF ADMINISTRATION:
By: /s/ William Shenberg
Date: 28 December 1994
STATE BUDGET AGENCY:
By: /s/ Jean S. Blackwell
Jean S. Blackwell,
State Budget Director
Date: 28 December 1994
APPROVED ONLY AS TO FORM AND
LEGALITY WITH RESPECT TO THE STATE:
By: /s/ Pamela Carter
Pamela Carter,
Attorney General
Date: 28 December 1994
APPROVED AND RATIFIED
By: /s/ Evan Bayh
Evan Bayh, Governor
Date: 4 January 1995
****
UNITED AIR LINES, INC.
By: /s/ Stuart I. Oran
Name: Stuart I. Oran
Title: Executive Vice President
Corporate Affairs and
General Counsel
ATTEST:
BY: /s/ Mary Jo Georgen
Name: Mary Jo C. Georgen
Title: Assistant Secretary
EXHIBIT LIST
A. Description of the 757/767 Project (Section 101)
B. Drug-Free Workforce Certificate (Section 1213)
EXHIBIT A
Description of the 757/767 Project
[To be supplied]
EXHIBIT B
STATE OF INDIANA
DRUG-FREE WORKPLACE CERTIFICATION
Pursuant to Executive Order No. 95-0, April 12, 1990, Issued
by Governor Evan Bayh, the Indiana Department of Administration
requires the Inclusion of this certification In all contracts with
and grants from the State of Indiana in excess of $25,000. No
award of a contract or grant shall be made, and no contract,
purchase order or agreement, the total amount of which exceeds
$25,000, shall be valid unless and until this certification has
been fully executed by the Contractor or Grantee and attached to
the contract or agreement as part of the contract documents. False
certification or violation of the certification may result in
sanctions including, but not limited to, suspension of contract
payments, termination of the contract or agreement and/or debarment
of contracting opportunities with the State for up to three (3)
years.
The Contractor/Grantee certifies and agrees that it will
provide a drug-free workplace by:
(a) Publishing and providing to all of its employees a
statement notifying employees that the unlawful manufacture,
distribution, dispensing, possession or use of a controlled
substance is prohibited in the Contractor's workplace and
specifying the actions that will be taken against employees for
violations of such prohibition; and
(b) Establishing a drug-free awareness program to Inform
employees about (1) the dangers of drug abuse in the workplace; (2)
the Contractor's policy of maintaining a drug-free workplace; (3)
any available drug counseling, rehabilitation, and employee
assistance programs; (4) the penalties that may be imposed upon an
employee for drug abuse violations occurring in the workplace;
(c) Notifying all employees in the statement required by
subparagraph (a) above that as a condition of continued employment
the employee will (1) abide by the terms of the statement; and (2)
notify the employer of nay criminal drug statute conviction for a
violation occurring In the workplace no later than five (5) days
after such conviction;
(d) Notifying in writing the contracting State Agency and the
Indiana Department of Administration within ten (10) days after
receiving notice from an employee under subdivision (c)(2) above,
or otherwise receiving actual notice of such conviction;
(e) Within thirty (30) days after receiving notice under
subdivision (c)(2) above of a conviction, Imposing the following
sanctions or remedial measures on any employee who is convicted of
drug abuse violations occurring in the workplace: (1) take
appropriate personnel action against the employee, up to and
Including termination; or (2) require such employee to
satisfactorily participate in a drug abuse assistance or
rehabilitation program approved for such purposes by a Federal,
State or local health, law enforcement, or other appropriate
agency; and
(f) Making a good faith effort to maintain a drugfree
workplace through the implementation of subparagraphs (2) through
(3) above.
THE UNDERSIGNED AFFIRMS, UNDER PENALTIES OF PERJURY, THAT HE OR
SHE IS AUTHORIZED TO EXECUTE THIS CERTIFICATION ON BEHALF OF THE
DESIGNATED ORGANIZATION.
Printed Name of Organization Contract/Grantee
ID Number
Signature of Authorized Representative Date
Printed Name and Title
State Form DAPW 150
44260 Rev. 8/90