FUNDING AGREEMENT #4
between
NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION
and
THE NEW YORK TIMES COMPANY
Dated as of December 15, 1993
Relative to the reconstruction of the
Whitestone Expressway Service Road
from 20th Avenue to Linden Place
in the College Point Industrial Park
in the Borough of Queens
TABLE OF CONTENTS
Page
PREAMBLE 1
DEFINITIONS 4
ARTICLE ONE THE WORK; PERFORMANCE, PROCUREMENT
AND CONTRACT REQUIREMENTS
Sec.1.1 General Provisions and Provisions Regarding
Design and Construction 18
Sec.1.2 Procurement of Bids, Services and Goods 24
Sec.1.3 Liaison to EDC 35
ARTICLE TWO THE FUNDING
Sec.2.1 Determination of Total Reimbursement Amount;
Reallocation of Funding from Funding Agreement #1
to this Agreement 36
Sec.2.2 Agreement to Fund 39
Sec.2.3 Disbursements 39
Sec.2.4 Funding of Costs of Changes 41
ARTICLE THREE THE TERM
Sec.3.1 Term 43
ARTICLE FOUR CONDITIONS FOR DISBURSEMENT
Sec.4.1 Initial Submissions by The Times 44
Sec.4.2 Documentation for Disbursements on Account
of Eligible Costs 45
Sec.4.3 Direction of Submissions 49
Sec.4.4 Failure to Make Submissions on a Timely Basis 49
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Page
ARTICLE FIVE REPRESENTATIONS OF THE TIMES
Sec.5.1 Organization; Standing 50
Sec.5.2 Intentionally Omitted 50
Sec.5.3 Conflict, etc. under Other Documents 50
Sec.5.4 No Litigation 51
Sec.5.5 Nonrecourse 51
ARTICLE FIVE-A REPRESENTATIONS AND WARRANTIES OF EDC
Sec.5A.1 Organization; Standing 52
Sec.5A.2 Due Authorization; Enforceable Obligations 52
ARTICLE SIX COVENANTS
Sec.6.1 Requisitions Update The Time's Representations 53
Sec.6.2 Compliance with Other Agreements and Law;
Legal Status 53
Sec.6.3 Maintenance of and Compliance with Insurance
Requirements 53
Sec.6.4 Maintenance of Office 54
Sec.6.5 Compliance with Applicable Law 54
Sec.6.6 Assignment 55
Sec.6.7 Maintenance of Records 56
Sec.6.8 Intentionally Omitted 56
Sec.6.9 Due Application of Funding Proceeds 56
Sec.6.10 Defects; Non-Conforming Work 57
Sec.6.11 Participation by Women and Minority Owned
Businesses 57
Sec.6.12 No Liens 60
Sec.6.13 Intentionally Omitted 60
Sec.6.14 Intentionally Omitted 61
Sec.6.15 Intentionally Omitted 61
Sec.6.16 MacBride Principles 61
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Page
Sec.6.17 No Waiver of Compliance 61
ARTICLE SEVEN DEFAULT AND TERMINATION
Sec.7.1 Events of Default 63
Sec.7.2 Default Remedies; Exculpation 64
Sec.7.3 Termination 67
ARTICLE EIGHT NOTICES
Sec.8.1 Notice 70
Sec.8.2 Disbursement Submissions 71
ARTICLE NINE GENERAL CONDITIONS AND COVENANTS
Sec.9.1 Conflict of Interests 72
Sec.9.2 No Liability of Individuals 73
Sec.9.3 Anti-Boycott Provisions 73
Sec.9.4 Governing Law 74
Sec.9.5 Liability of EDC 74
Sec.9.6 Amendments 76
Sec.9.7 Successors and Assigns 76
Sec.9.8 Assignment of Funds 76
Sec.9.9 Counterparts 76
Sec.9.10 Interpretation 76
Sec.9.11 Indemnity 77
Sec.9.12 No Agency 78
Sec.9.13 Venue 78
Sec.9.14 Investigations; Cooperation 80
Sec.9.15 Intentionally Omitted 88
Sec.9.16 Maximum Interest Rate 88
Sec.9.17 Captions 88
Sec.9.18 Gender, Etc. 88
Sec.9.19 Assignment by EDC 88
Sec.9.20 Obligations of Newspaper Division 89
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Page
ARTICLE TEN AGREEMENT OF THE CITY
Sec.10.1 City's Agreement to Fund EDC 90
Sec.10.2 Valid Agreement of the City 90
Sec.10.3 The Times's Rights Against the City 90
Appendix A - Premises
Appendix B - Whitestone Road
Appendix C - Contractor's Insurance Requirements
Appendix C-1 - Consultant's Insurance Requirements
Appendix D - The Times's Certificate of Good Standing
Appendix E - EDC's Legal Opinion
Appendix F - EDC's Secretary's Certificate
Appendix G - Equal Employment Requirements
Appendix H - Employment Report
Appendix I - Intentionally Omitted
Appendix J - MacBride Principles Rider
Appendix K - Corporation Counsel's Legal Opinion
Exhibit A - Illustrative Scope of Work
Exhibit B - Form List of Contractors
Exhibit C - Investigation Forms
Exhibit D - Intentionally Omitted
Exhibit E - Form Legal Opinion
Exhibit F - Form Certificate of Specimen Signature
Exhibit G - AIA Forms
Exhibit H - W\MBE Plan
Exhibit H-1 - Form Expedited Certification Affidavit
Exhibit I - Form Certification to be Attached to Requisition
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FUNDING AGREEMENT #4 dated as of December 15, 1993 between NEW YORK CITY
ECONOMIC DEVELOPMENT CORPORATION ("EDC"), a local development corporation
formed pursuant to Section 1411 of the Not-for-Profit Corporation Law of the
State of New York, having its principal office at 110 William Street, New
York, New York 10038, and THE NEW YORK TIMES COMPANY ("The Times"), a New York
State corporation, having its principal office at 229 West 43rd Street, New
York, New York 10036.
PREAMBLE:
WITNESSETH
WHEREAS:
A: The City of New York (the "City"), a municipal corporation of the
State of New York, is the owner in fee of certain real property identified, as
of the date hereof, as Block 4183, p/o Lot 1, Block 4242, p/o Lot 1, Block
4243, p/o Lot 1, Block 4280, p/o Lot 1, Block 4281, p/o Lot 1, Block 4282, Lot
1, Block 4283, Lot 1, Block 4284, Lot 1, Block 4306 p/o Lot 1 and Lot 44,
Block 4307, Lot 1 and p/o Lot 4, Block 4308, Lot 1 and Lot 36, Block 4310, Lot
32, Block 4336, Lot 35 and p/o Lot 50, Block 4337, Lot 62 and p/o Lot 76,
Block 4339, Lot 46 and demapped portions of 25th Avenue, 28th Avenue, 138th
Street and 139th Street, on the Tax Map for the Borough of Queens, in the
County of Queens, City and State of New York, and assigned new tentative tax
block and lot numbers Block 4282, Lot
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100 for future identification, as such property is more particularly described
in Appendix A attached hereto and made a part hereof (the "Premises); and
B: The City, as landlord, and EDC, as tenant, entered into a lease
dated as of the date hereof, which lease was assigned by EDC to The Times
pursuant to an Assignment and Assumption of Lease with Consent dated as of
the date hereof (the lease as so assigned, and as the same may hereafter be
amended, is hereinafter referred to as the "Lease"), demising the Premises for
the Project (as hereinafter defined), and for which Lease EDC will act as the
City's managing agent pursuant to Article 42 of the Lease; and
C: EDC and The Times entered into a funding agreement dated as of the
date hereof, which provides for the funding to The Times of City capital
budget dollars necessary to pay for certain site preparation work required in
connection with the construction of the Project (such funding agreement,
together with any amendments that may be made thereto, is hereinafter
collectively referred to as "Funding Agreement #1"); and
D: In connection with the Lease, The Times has the option to perform
the work necessary to reconstruct, in accordance with New York City Department
of Transportation standards, on behalf of the City, the Whitestone Expressway
Service Road between 20th Avenue and Linden Place (the "Whitestone Road"), a
City street running along the easterly side of the Premises and along the
easterly side of the premises adjacent to the Premises currently owned by the
United States Postal Service (the "Construction Site"), as such street is more
particularly depicted in Appendix B attached hereto (the "Improvements"); and
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E: The construction of the Improvements is a necessary prerequisite
element to the completion of the Project; and
F: If The Times elects to reconstruct the Whitestone Road in
accordance with its option, EDC and the City will make available to The Times
a portion of the City capital budget funds made available under Funding
Agreement #1, to pay for costs incurred by The Times in connection with the
performance of the Work (as hereinafter defined); and
G: The City and EDC have entered into an Amended and Restated
Contract dated as of June 30, 1993, as amended (the "Consolidated Contract")
pursuant to which the City will provide EDC with City capital budget funds for
use in connection with the construction of the Project in accordance with
Funding Agreement #1, a portion of which such funds (as more particularly set
forth herein), in an amount not to exceed $3,750,000 (the "Funding"), may be
reallocated hereunder for use in connection with the reconstruction of the
Whitestone Road, and pursuant to which EDC is authorized to contract with The
Times to perform the Work; and
H: The Times, independently, and not as agent of the City or EDC, has
agreed that if it exercises its option to reconstruct the Whitestone Road it
will perform, or cause the performance of, the Work; and
I: In furtherance of its obligations under the Consolidated Contract
and its corporate purpose of fostering economic development in the City, EDC
has agreed, subject to the terms, conditions and limitations set forth herein,
to disburse to The Times the
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Funding, in an amount not to exceed $3,750,000, for the purpose of financing
the Eligible Costs of the Work.
NOW, THEREFORE, EDC and The Times covenant and agree as follows:
DEFINITIONS
-----------
As used in this Funding Agreement, the following initially capitalized
terms shall have the respective meanings indicated opposite each of them:
"Actual Road
Reconstruction
Commencement Date" The date on which The Times actually commences the
reconstruction of the Whitestone Road.
"Affiliate" Any Person that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or
is under common control with, The Times. For purposes
hereof, the term "control" means the possession,
directly or indirectly, of the power to direct or
cause the direction of the management and policies of
The Times through the ownership of voting securities,
by contract, or otherwise. Ownership of or by The
Times includes beneficial ownership effected by
ownership of intermediate entities. An "Affiliate" of
a Person other than The Times shall be determined
using the same standard of control and ownership set
forth herein with respect to The Times. Unless the
context otherwise requires, any reference to an
"Affiliate" in this Agreement shall be deemed to refer
to an Affiliate of The Times.
"Agreement" This Funding Agreement, and any amendments thereto.
"Anticipated
Road Reconstruction
Commencement Date" As defined in Sec.1.1(b).
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"Approvals" As defined in Sec.1.1(c)(2).
"Builder's Pavement
Plan" The plans and drawings with respect to
improvements to sidewalks, curbs and roadways
within the public right-of-way adjacent to the
Premises, approved by DOT's Office of Builder's
Pavement and submitted by The Times to the
City's Department of Buildings as part of its
plans for the construction of the Project.
"Builder's Pavement
Plan Work" As defined in Sec.1.1(a).
"Business Day" Any day other than a Saturday, Sunday, legal holiday,
or a day on which banking institutions in New York
City are authorized by law or executive order to
close.
"Certificate of
Occupancy" The earlier to be issued by the City's
Department of Buildings (or its successor in
function) of a temporary or permanent
certificate of occupancy or its equivalent with
respect to the Project.
"City" As defined in Recital A of the Preamble.
"College Point Improvement
Fund Payments" As defined in Section 3.09(b)(iii) of the Lease.
"Commissioner" As defined in Sec.9.14(a).
"Completed Cover
Sheet" As defined in Sec.4.1.
"Consolidated
Contract" As defined in Recital G of the Preamble.
"Construction
Contract" (A) Any agreement executed by The Times and the
Resident Engineer (as hereinafter defined), if any,
with respect to construction management and
supervision services and engineering services; or (B)
any contract between The Times and the General
Contractor (as hereinafter defined), if any,
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under which the General Contractor is obligated to
perform the Construction Work; or (C) any contract
with a contractor for performance of all or any part
of the Construction Work, whether entered into by The
Times, the General Contractor, the Resident Engineer,
or the Construction Manager (as hereinafter defined).
"Construction Manager" Lehrer McGovern Bovis, Inc. or any other construction
manager selected by The Times, reasonably approved by
EDC, responsible solely for the performance of
construction management services and/or construction
contract administration services and supervision
services relative to the Construction Work.
"Construction Site" As defined in Recital D of the Preamble.
"Construction
Work" The portion of the Work the costs of which are
considered hard costs of construction under normal
industry standards, excluding the services of the
Resident Engineer and the services of the Construction
Manager, if any.
"Consultant" Any professional engineer, engineering firm,
architectural firm with engineering expertise,
combined practice or association licensed in the
State of New York, and any special consultants
(e.g. soil consultants) selected by The Times
and reasonably approved by EDC, to perform the
Design Services (as hereinafter defined).
"Contract Price" The contract price (or the aggregate of the contract
prices) for the performance of the Construction work,
as set forth in the bid or bids of the Contractor or
Contractors selected by The Times in accordance with
Sec.1.2(c) hereof, to perform the Construction Work.
"Contractor" Any contractor under a Construction Contract.
"DBS" As defined in Sec.6.11(b).
"DEP" The City's Department of Environmental Protection, or
its successor in function.
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"Department of
Investigation" As defined in Sec.9.14(a).
"Deputy Mayor" As defined in Sec.9.14(a).
"Design Contract" Any agreement executed by The Times and the Consultant
with respect to the performance of Design Services in
connection with the design of the Improvements.
"Design Costs" The costs paid or payable by The Times to the
Consultant for the performance of Design Services, as
set forth in clause (iii) of the definition of
Eligible Costs.
"Design Services" The design and engineering services relative to the
Work and performed by the Consultant.
"DLS" The Division of Labor Services of the City's
Department of Business Services, or its successor in
function.
"DOT" The City's Department of Transportation, or its
successor in function.
"EDC" As defined in the first paragraph of this Agreement.
"EDC Default Notice" As defined in Sec.9.5(b).
"EDC Disagreement
Notice" As defined in Sec.2.1(a).
"EDC Disagreement Notice
Dispute Period" As defined in Sec.2.1(a).
"Eligible
Costs" (i) The costs of the Work paid or payable by The Times
to Contractors (other than the Resident Engineer),
subcontractors, suppliers and material persons for (A)
labor and materials utilized in connection with the
Construction Work, and (B) for labor, services,
facilities or equipment customarily considered as
"general conditions" items which are reasonably
required by or consequent upon the Construction Work,
including (x) all costs of contract bonds and of
insurance that may be required
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or necessary during the period of and for performance
of the Construction Work, (y) all costs of obtaining
and maintaining the guaranties, if any, and (z) all
costs of obtaining and maintaining the security
services required by Sec.1.1(e)(ii) of this Agreement
that are obtained by Contractors and subcontractors
(other than the Resident Engineer) and are included in
their respective contract prices together with those
costs described in (i)(A) above, (ii)(A) the costs
paid or payable by The Times to the Resident Engineer,
including the Resident Engineer's fee, those costs
incurred by the Resident Engineer for the performance
of construction management and supervision services
and/or engineering services, and all "general
condition" items and other reimbursable expenses
(including without limitation, the preparation of a
Final Survey (as hereinafter defined)), and (B) costs
paid or payable by The Times to the Consultant with
respect to Design Services (the aggregate of the costs
set forth in clauses (ii)(A) and (ii)(B) above are
hereinafter referred to as "Soft Costs"), in an amount
not to exceed twenty-three percent (23%) of the Hard
Costs (as hereinafter defined); provided, however that
the amount of Soft Costs includable in Eligible Costs
may exceed twenty-three percent (23%) of the Hard
Costs if such greater amount is commercially
reasonable taking into account the nature and the
scope of the Work and only if such greater amount is
approved by EDC, which approval shall not be
unreasonably withheld or delayed after the submission
by The Times to EDC of all information reasonably
requested by EDC to establish the scope of such Soft
Costs and the basis for their exceeding twenty-three
percent (23%) of the Hard Costs. In no event shall
Eligible Costs include the costs or fees paid or
payable by The Times to the Construction Manager.
"Entity" As defined in Sec.9.14(a).
"Events of
Default" Those events set forth in Sec.7.1.
"Federal Courts" As defined in Sec.9.13.
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"Final Acceptance Date" Means the date on which all of the following shall
have occurred: (i) the Resident Engineer or the
Construction Manager shall have certified to EDC that
the Construction Work (including all Substantial
Completion Punch List (as hereinafter defined) items)
is complete (except to an immaterial extent) in
accordance with the Final Plans and Specifications,
and the Requirements, and (ii) EDC and/or its
professional consultants shall have inspected the
Construction Site, within thirty (30) days after EDC's
receipt from the Resident Engineer or the Construction
Manager of the certification described in clause (i)
above, and certified, by the later to occur of the
expiration of such thirty (30) day period or five (5)
days after such inspection was completed, to The Times
that, in its opinion, the Improvements are complete
(except to an immaterial extent) in accordance with
the Final Plans and Specifications, which
certification shall not be unreasonably withheld;
provided, however, that if EDC and/or its professional
consultants shall have failed to inspect the
Construction Site within the thirty (30) day period
described above and to give the certification within
the time period described above, EDC shall be deemed
to have inspected the Construction Site and certified
to The Times that the Improvements are complete.
"Final
Completion" Means that each of the following shall have occurred:
(A) the Resident Engineer or the Construction
Manager shall have issued to EDC a "Certificate
of Payment", or certified its approval of a
"Certificate of Payment" issued to EDC, in
either case stating that it has examined the
Final Plans and Specifications and, in its best
professional judgment, after diligent inquiry,
and on the basis of its observations and
inspections, the Construction Work has been
completed (except to an immaterial extent) in
accordance with the Final Plans and
Specifications and all Requirements and that the
final payment is due to The Times;
(B) the Reviewing Parties (i) shall have made a
final inspection of the Construction Site upon
receipt of
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notice from The Times that the Construction Work
is Substantially Completed (as hereinafter
defined) and (ii) shall have certified the
Construction Work, including all items on the
Final Punch List, as being acceptable and
complete;
(C) The Times shall have submitted to EDC a final
accounting, containing an affidavit that all
payrolls, bills for materials and equipment, and
other indebtedness connected with the
Construction Work for which The Times may in any
way be responsible (other than items, if any,
disputed in good faith by The Times that are not
being paid for by the Funding including, without
limitation, the Construction Manager's costs and
fees), either have been paid or otherwise
satisfied or will be paid simultaneously with or
immediately after the receipt of the proceeds of
any disbursement of the Funding for which Final
Completion is required;
(D) The Times shall have submitted to EDC receipts,
releases and waivers of liens, or such other
documentation establishing payment or
satisfaction of all obligations arising out of
the Construction Work performed, or caused to be
performed, by The Times (other than items, if
any, disputed in good faith by The Times that
are not being paid for by the Funding including,
without limitation, the Construction Manager's
costs and fees), to the extent and in such form
as may be reasonably designated by EDC. If any
lien for any work done by or on behalf of The
Times has attached to the funds forming a part
of the Funding, The Times shall have either
removed or bonded such lien;
(E) The Times shall have delivered to EDC two sets
of the "as-built" drawings, in form customarily
prepared for road construction (which "as-built"
drawings shall include the Final Survey), for
the Improvements, as the same may have been
amended, modified or supplemented, and such
other documentation as may be required by the
Reviewing Parties or as may be necessary to
evidence that the Construction Work performed,
or caused to be
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performed, by The Times was completed in
accordance with the Requirements. These
drawings shall accurately show any deviations
from the Final Plans and Specifications and the
exact locations of any underground or otherwise
concealed utilities and appurtenances (if, and
to the extent, that such utilities and
appurtenances were installed, adjusted or
protected in the course of the performance of
the Construction Work) as referenced to
permanent surface improvements; and
(F) receipt by EDC of notification from DLS that all
labor requirements applicable to the Work have
been fulfilled.
"Final Completion
Notice" As defined in Sec.2.1(a).
"Final Completion
Notice Dispute Period" As defined in Sec.2.1(a).
"Final Penalty" As defined in Sec.9.14(f)(ii).
"Final Plans and
Specifications" The completed final drawings and plans and
specifications for the reconstruction of the
Whitestone Road, as developed by The Times and
delivered by The Times to EDC in accordance with
Sec.1.1(c)(1) hereof, and as such drawings and plans
and specifications may be modified or amended from
time to time in accordance with Sec.2.4 of this
Agreement.
"Final Punch
List" A statement by the Resident Engineer or the
Construction Manager issued after Substantial
Completion, setting forth a description in
reasonable detail of any items to be remedied,
corrected or completed in accordance with the
Final Plans and Specifications or any observable
defects and deficiencies, and any other defects
or deficiencies of which the Resident Engineer
or the Construction Manager have knowledge or of
which the Reviewing Parties shall have observed
and notified The Times or its Contractors, with
respect to the Improvements
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or at or on the Construction Site including, but
not limited to, deficiencies due to
non-compliance with Requirements.
"Final Survey" The final survey to be prepared by a certified
surveyor of curb, gutter and crown elevations in
connection with the Whitestone Road.
"Funding" As defined in Recital G of the Preamble.
"Funding Agreement #1" As defined in Recital C of the Preamble.
"Funding Agreement #2" The funding agreement between EDC and The Times dated
as of the date hereof which provides for the funding
to The Times of City capital budget dollars necessary
to pay for the construction of a City sanitary sewer
system to service the Premises, as such agreement may
be amended from time to time.
"Funding Agreement #3" The funding agreement between EDC and The Times dated
as of the date hereof which provides for the funding
to The Times of funds necessary to pay for the
construction of an interim New York City Police
Department evidence vehicle facility, as such
agreement may be amended from time to time.
"General
Contractor" The Times's general contractor, if any,
reasonably approved by EDC, engaged to perform
and manage the Construction Work.
"Governmental
Authorities" The United States of America, the State of New
York, the City and any agency, department,
legislative body, commission, board, bureau,
instrumentality or political subdivision of any
of the foregoing, now existing or hereafter
created, having legal jurisdiction over the
Improvements or the Construction Site or any
portion thereof or any street, road, avenue,
sidewalk or water comprising a part of or
immediately adjacent to the Construction Site.
"Hard Costs" The aggregate of the costs set forth in clauses
(i)(A) and (i)(B) of the definition of Eligible
Costs.
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"Impositions" As defined in Section 3.09(b)(i) of the Lease.
"Improvements" As defined in Recital D of the Preamble.
"Interim Penalty" As defined in Sec.9.14(f)(i).
"Investigation" As defined in Sec.9.14(a).
"Investigation Forms" As defined in Sec.1.2(d).
"Late Charge
Rate" The Prime Rate (as hereinafter defined) plus one
percent (1%).
"Lease" As defined in Recital B of the Preamble.
"Material Change" A change to the Final Plans and Specifications which,
when aggregated with any previous changes to the Final
Plans and Specifications, would increase the Contract
Price by more than ten percent (10%).
"Members" As defined in Sec.9.14(a).
"MBEs" As defined in Sec.6.11(a).
"New York State
Courts" As defined in Sec.9.13.
"Newspaper Division" As defined in Sec.9.20.
"Owner's
Representative" Any person selected by The Times, reasonably
approved by EDC, to act as The Times's
representative at the Construction Site and
responsible for the supervision of the
Construction Work performed by the General
Contractor and the other Contractors,
subcontractors and material suppliers.
"Parties" EDC and The Times.
"Person" An individual, corporation, partnership, joint
venture, estate, trust, unincorporated association;
any federal, state, county or municipal government or
any bureau, department or agency
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thereof; and any fiduciary acting in such capacity on
behalf of any of the foregoing.
"Plans and
Specifications" The progress drawings and plans and
specifications for the reconstruction of the
Whitestone Road, as developed by The Times
and/or its Consultant, and approved by the
Reviewing Parties in accordance with Sec.1.1(c)(1)
hereof.
"Premises" As defined in Recital A of the Preamble.
"Prime Rate" The base or prime rate of interest from time to
time charged by Chemical Bank, as such rate is
published by The New York Times newspaper or by
-------------------
The Wall Street Journal if such rate is not
-------------------------
published by The New York Times at the time in
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question.
"Project" The construction on the Premises of a facility of no
less than approximately 360,000 square feet for the
printing, production and distribution of newspapers
and, at the sole discretion of The Times, other such
buildings and improvements on the Premises as are
permitted pursuant to the terms and provisions of the
Lease, including without limiting the generality of
the foregoing, the expansion of the printing facility
to a size greater than 360,000 square feet.
"Prohibited Person" As defined in Sec.1.2(c)(4).
"Proposed Bidders List" As defined in Sec.1.2(c)(1).
"Public Parties" As defined in Sec.9.11(a).
"Rental" As defined in Article 1 of the Lease.
"Requirements" Any and all laws, rules, regulations, orders,
ordinances, statutes, codes, executive orders,
resolutions and requirements of all Governmental
Authorities currently in force or hereafter adopted
applicable to the Construction Site and/or the Work.
"Requisition Report" As defined in Sec.4.2(a)(ii).
"Resident Engineer" The Consultant or any other professional engineer,
engineering firm, architectural firm with engineering
expertise, combined
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practice or association licensed in the State of New
York selected by The Times, reasonably approved by EDC
as to the acceptability of such Resident Engineer and
as to the scope of work proposed to be performed by
such Resident Engineer, to act as resident engineer on
behalf of The Times and to perform engineering
services and/or construction contract administration
and supervision services relative to the Work. The
Resident Engineer, if any, shall act on behalf of The
Times and shall be separate and apart from any
engineer acting on behalf of EDC or the City for any
reasons.
"Resident Engineer
Costs" The costs paid or payable by The Times to the
Resident Engineer for the performance of
construction management and supervision services
and engineering services relative to the Work,
as set forth in clause (ii) of the definition of
Eligible Costs.
"Reviewing
Parties" DOT, DEP or their respective designees, including
without limitation, their hired consultants, and any
other Governmental Authority with jurisdiction over
the Work, the Improvements or the Construction Site
and responsible for (i) the issuing of permits or
approvals with respect to the Improvements, or (ii)
ensuring compliance with the Requirements.
"Road Election Notice" As defined in Sec.1.1(b).
"Scope of Work" As defined in Sec.1.1(a).
"Substantial
Completion" or
"Substantially
Complete(d)" Means that the Construction Work shall have been 95%
completed in accordance with the Final Plans and
Specifications and all Requirements, and the Reviewing
Parties are able to inspect the Construction Work and
prepare a Final Punch List.
"Substantial
Completion Date" The date on which the Construction Work shall have
been Substantially Completed.
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"Substantial Completion
Punch List" The statement by EDC, issued after inspection of
the Construction Site, setting forth a
description in reasonable detail of any items to
be remedied, corrected or completed in
accordance with the Final Plans and
Specifications or any defects or deficiencies
which EDC shall have noted with respect to the
Improvements constructed or caused to be
constructed by The Times, including but not
limited to, defects or deficiencies due to non-
compliance with the Requirements.
"Term" As defined in Sec.3.1.
"The Times" As defined in the first paragraph of this Agreement.
"The Times's Disagreement
Notice" As defined in Sec.2.1(a).
"The Times Indemnitees" As defined in Sec.9.11(b).
"Total Reimbursement
Amount" The amount, determined in accordance with the
procedure therefor set forth in Sec.2.1(a) hereof, of
the total Eligible Costs incurred by The Times in
connection with the design and construction of the
Improvements, which amount shall constitute the total
amount of funds that are to be reallocated from
Funding Agreement #1 to this Agreement in accordance
with Sec.2.1(b) hereof.
"Transaction Documents" As defined in Sec.9.14(a).
"Unavoidable
Delays" Delays caused by (i) strikes, slowdowns, walkouts,
lockouts or other labor troubles, (ii) acts of God,
(iii) catastrophic weather conditions, (iv) inability
to obtain labor or materials due to labor disputes,
(v) court orders enjoining commencement or
continuation of the Work, (vi) enemy action, (vii)
civil commotion, (viii) shortage of fuel, supplies or
labor resulting from governmental declared priorities
in connection with a public emergency, (ix) failure or
defect in the supply of electricity, oil, gas or
water to the Construction Site provided that such
failure or defect is not due to the action or inaction
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of The Times or its Contractors or subcontractors, (x)
fire, (xi) casualty, (xii) the failure of EDC to
disburse the Funding or any portion thereof in
accordance with the provisions of this Agreement,
(xiii) EDC's unreasonable delay in granting any
approvals required under this Agreement, or (xiv)
other causes not within The Times's control that is
causing a delay in The Times's performance of its
construction obligations hereunder. The Times shall
use its good faith efforts to notify EDC in writing,
stating when such delay commenced, not later than ten
(10) Business Days after The Times has first received
knowledge of the occurrence of any of the foregoing
conditions; provided, however, that The Times's
failure to notify EDC of the occurrence of an event
constituting an Unavoidable Delay shall not affect the
commencement of such delay or otherwise result in the
loss of any benefit or right granted to The Times
under this Agreement.
"WBEs" As defined in Sec.6.11(a).
"W/MBEs" As defined in Sec.6.11(a).
"W/MBE Participation
Dollar Value" As defined in Sec.6.11(c).
"W/MBE Percentage" As defined in Sec.6.11(c).
"W/MBE Plan" As defined in Sec.6.11(a)-14.
"Whitestone Road" As defined in Recital D of the Preamble.
"Work" Work undertaken by or on behalf of The Times for the
purpose of designing and constructing the Improvements
all in accordance with this Agreement and the Final
Plans and Specifications.
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ARTICLE ONE - THE WORK; PERFORMANCE, PROCUREMENT AND
----------------------------------------------------
CONTRACT REQUIREMENTS
---------------------
Sec.1.1 General Provisions and Provisions Regarding Design and
---------------------------------------------------------------
Construction.
- -------------
(a) The Times's Option to Perform the Work. Pursuant to Article 46 of
---------------------------------------
the Lease, The Times shall, in its sole discretion, have the right (but not
the obligation, except as hereinafter set forth), subject to such conditions
set forth in Sec.1.1(b) below, to elect to reconstruct, on behalf of the City,
the Whitestone Road substantially in accordance with a scope of work (the
"Scope of Work") prepared by The Times in its sole discretion, provided,
however that EDC shall have the right to comment on such Scope of Work
(provided that such comments shall not be binding upon The Times) and further
provided that such Scope of Work shall conform to all DOT standards and
specifications for the construction of City streets and otherwise be approved
by DOT pursuant to DOT's procedures. An illustration of such Scope of Work
(which illustration shall not be binding on The Times) is attached hereto as
Exhibit A. Notwithstanding anything to the contrary contained herein, The
Times acknowledges and agrees that if it does not elect to exercise its option
to reconstruct the Whitestone Road in accordance with the foregoing, The Times
shall nevertheless have the obligation to reconstruct and/or repair such
portion of the Whitestone Road as is required pursuant to its Builder's
Pavement Plan (the "Builder's Pavement Plan Work") and, in such event, shall
not be entitled to the disbursement of the Funding in connection with such
Builder's Pavement Plan Work. If The Times elects to reconstruct the
Whitestone Road,
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(i) The Times shall have the right to include the Builder's Pavement Plan Work
within the Scope of Work, and (ii) The Times shall perform the Work related to
such reconstruction, and EDC shall disburse to The Times the Funding or any
portion thereof allocable to the Work being performed by The Times, on the
terms and conditions contained in this Agreement.
(b) Notice of Election to Proceed. If The Times elects to exercise its
------------------------------
right to reconstruct the Whitestone Road on behalf of the City in accordance
with Sec.1.1(a) hereof, The Times shall make such election by giving written
notice thereof (the "Road Election Notice") to EDC no later than the date
which is six (6) months prior to the approximate date on which The Times
anticipates that it will commence the reconstruction of the Whitestone Road
(the "Anticipated Road Reconstruction Commencement Date"); provided, however,
that The Times shall have the right to revoke such election at any time prior
to the Actual Road Reconstruction Commencement Date. If The Times elects to
revoke its election in accordance with the foregoing sentence, The Times shall
effect such revocation by giving EDC written notice of such election and upon
EDC's receipt of such notification of election to revoke, this Agreement shall
terminate and thereafter neither Party shall have any rights against or
obligations to the other Party by reason of this Agreement except as otherwise
specifically set forth in this Agreement. The Times acknowledges that if it
revokes its election to reconstruct the Whitestone Road in accordance with the
foregoing, in no event shall EDC be required to disburse the Funding or any
portion thereof to The Times for Work performed, or caused to be performed, by
The Times prior to such
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revocation (including, without limitation, Design Services). The Road
Election Notice shall specify (i) the Consultant that The Times has selected,
or intends to select, with respect to the design of the Whitestone Road, (ii)
the Anticipated Road Reconstruction Commencement Date, (iii) the Resident
Engineer, Construction Manager, or Owner's Representative that The Times
intends to select with respect to the reconstruction of the Whitestone Road,
and (iv) the Person or Persons on The Times's staff selected by The Times to
be responsible for communicating with EDC regarding the performance and
completion of the Work in connection with the reconstruction of the Whitestone
Road.
(c) Plans and Specifications. (1) If the Times elects to exercise its
-------------------------
right to reconstruct the Whitestone Road, The Times shall design the
Whitestone Road and prepare the Plans and Specifications in connection
therewith in accordance with the Scope of Work prepared in accordance with
Sec.1.1(a) hereof. The Plans and Specifications shall be subject to the review
and approval of the Reviewing Parties and The Times shall deliver to EDC all
Plans and Specifications submitted to the Reviewing Parties for their review
and approval and EDC shall have the right to comment on such Plans and
Specifications (provided that such comments by EDC shall not be binding on The
Times). The Plans and Specifications shall describe all the Work, whether or
not paid in whole, in part or at all with the Funding.
(2) The Times shall obtain, or shall cause its Contractors to
obtain, all appropriate permits, consents, certificates, licenses,
authorizations and approvals necessary for the construction of the
Improvements (the "Approvals"). Upon request of The Times, EDC shall assist
The Times or its Contractors in obtaining such Approvals. The cost of
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obtaining such permits, consents, certificates, licenses, authorizations and
approvals shall be considered Eligible Costs payable with the Funding if such
costs are included in The Times's Contractors' contract price.
(3) Any changes required to be made to the Final Plans and
Specifications shall be made in accordance with the terms and conditions set
forth in Sec.2.4 hereof.
(d) Right to Proceed. The Times may only proceed with the
-------------------
Construction Work if and only if (i) all Approvals necessary for the
construction of the Improvements have been obtained, (ii) certificates, in
form and substance reasonably satisfactory to EDC, evidencing the insurance
policies referred to in Appendix C and Appendix C-1 (as applicable), naming
the City and EDC as additional insureds, providing not less than thirty (30)
days notice of cancellation to the City and EDC and, if the certificates of
insurance described above do not indicate thereon the receipt of due and
payable premiums, proof of payment of such premiums, shall have been obtained
and delivered to EDC, and (iii) all other Requirements have been complied
with, it being expressly agreed that The Times shall bear the entire risk of
constructing the Improvements in variance with the Final Plans and
Specifications and that EDC will not be obligated to disburse any of the
Funding before all Approvals have been obtained and all conditions to
disbursement under this Agreement have been satisfied. The fact that EDC has
approved the Final Plans and Specifications, or any other action or failure to
act by EDC or the Reviewing Parties, shall in no way constitute a
representation that all applicable Requirements have been complied with or
relieve The Times of its obligations to abide by the terms of this Agreement.
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(e) Performance of the Work. (i) The Times covenants and agrees to
-------------------------
cause the Improvements to be constructed in accordance with the requirements
of this Agreement and with the Final Plans and Specifications and all
applicable Requirements. The Times shall obtain all final acceptances from
the appropriate Reviewing Parties as necessary to complete the Improvements.
(ii) At all times during the performance of the Construction
Work, The Times shall maintain, or cause to be maintained, the Construction
Site in a neat and orderly condition and shall protect the Construction Site
against deterioration, loss, damage or theft.
(f) Site Inspections. Subject to the provisions of Sec.9.11(b) hereof,
The Times shall permit EDC and the Reviewing Parties, their agents, employees
and/or professional consultants to make inspections of the Construction Site
during normal business hours or otherwise when Construction Work is in
progress, at reasonable times and upon reasonable notice to The Times and in
accordance with applicable safety standards, (i) with respect to EDC, as it
deems necessary to observe compliance with and performance under this
Agreement, and (ii) with respect to the Reviewing Parties, as are normally
made by the City and its agencies in the course of a project or projects of
similar nature and magnitude to the Work. Such inspection shall not require
the uncovering of any work unless specifically requested in writing by EDC or
the Reviewing Parties. If EDC requested the uncovering of the work and the
work that has been uncovered is determined to have been performed in
accordance with the Final Plans and Specifications and the Requirements,
EDC shall pay the costs associated with the uncovering requested by EDC;
if the work that has been
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uncovered is determined to be unacceptable because it was not performed in
accordance with the Final Plans and Specifications or the Requirements, The
Times shall pay the costs associated with the uncovering. EDC shall use its
good faith efforts to cause such inspection to be made in a manner that will
not interfere with the progress of the Work. A representative of The Times
shall, if available, accompany the person or persons making such inspection on
behalf of EDC or the Reviewing Parties, unless The Times elects to forego such
right. The Times shall cause a complete set of the Final Plans and
Specifications, as then in effect, and shop drawings to be maintained at the
Construction Site or at the Premises for inspection by EDC, the Reviewing
Parties and each of their respective employees, consultants and agents. The
omission or failure of EDC or the Reviewing Parties or any representative
thereof to make such inspections, to identify any defects or to notify The
Times of any observable defects or any non-compliance with the terms of this
Agreement or the Final Plans and Specifications, shall in no way relieve The
Times of its obligations under this Agreement or impose any liability upon
EDC, the Reviewing Parties, or any of their respective employees, consultants
and agents.
(g) Completion.
-----------
(1) The Times shall notify EDC of the date the Construction Work shall
have been Substantially Completed. EDC shall have ten (10) Business Days
after the giving of the notice referred to in the preceding sentence to
inspect the Improvements and notify The Times in writing of its acceptance of
The Times's determination of Substantial Completion or to notify The Times in
writing of specific objections which it believes renders the
-23-
Construction Work not Substantially Completed and prepare the Substantial
Completion Punch List, if necessary, and deliver the same to The Times within
such ten (10) Business Day period. The Times shall Substantially Complete
those items of the Work, if any, specified in EDC's notice as not
Substantially Complete or otherwise in the Substantial Completion Punch List.
(2) After EDC's acceptance of The Times's determination of Substantial
Completion, The Times shall cause the Resident Engineer or the Construction
Manager to prepare a Final Punch List. Such Final Punch List shall be
prepared after inspection of the substantially completed Improvements by the
Reviewing Parties and shall incorporate those items determined by such
Reviewing Parties to be necessary for Final Completion of the Construction
Work.
(3) The Times shall use its good faith efforts to cause Final
Completion to occur as soon as reasonably possible after Substantial
Completion and, to the extent reasonably achievable, shall complete all items
on the Final Punch List within ninety (90) days after the Substantial
Completion Date.
Sec.1.2 Procurement of Bids, Services and Goods
---------------------------------------
(a)(1) If The Times elects to reconstruct the Whitestone Road as
provided in Sec.1.1(a) hereof, The Times shall enter into a Construction
Contract or Construction Contracts and a Design Contract or Design Contracts
independently and not as agent of the City or EDC for the performance of the
Construction Work in accordance with the Final
-24-
Plans and Specifications and for the performance of the Design Services, so as
to facilitate the construction of the Improvements.
(2) Any Design Contract entered into by The Times in accordance
herewith shall provide solely for the performance of Design Services in
connection with the reconstruction of the Whitestone Road and shall be
separate and apart from any other contract entered into by The Times for the
performance of design services in connection with the Project.
(3) Any Construction Contract entered into by The Times (and any bid
packages prepared by The Times for the bid of the Construction Work) shall
instruct the Contractors (or bidders, as appropriate) as follows: title to the
Construction Site and the Improvements shall be and vest in the City.
Materials to be incorporated into the Construction Site shall, effective upon
their purchase and at all times thereafter, constitute the property of the
City and upon incorporation of such materials into the Construction Site title
thereto shall be and continue in the City. In accordance therewith, purchases
of tangible personal property by the Contractors arising in connection with
the construction of the Improvements are exempt from the payment of certain
sales and compensating use taxes to the extent that such property (i) is used
to alter, maintain or improve, and becomes an integral component part of, the
Construction Site, or (ii) remains tangible personal property and is installed
on the Construction Site. This exemption does not apply to tools, machinery,
equipment or other property leased by The Times or its Contractors, or to
supplies, materials or other property which are consumed in the course of
construction or for any other reason not incorporated into the Construction
Site.
-25-
(b) The Times shall have the right to enter into Design Contracts with
a Person or Persons selected by The Times in its sole discretion; provided
however, that any such Person shall be subject to EDC's prior written approval
solely as to whether such Person is a Prohibited Person. Prior to letting any
Design Contract, The Times shall submit to EDC by hand delivery, registered or
certified mail, or national overnight courier service, a statement as to the
Person or Persons with whom The Times intends to enter into a Design Contract.
EDC shall advise The Times, within fifteen (15) Business Days after receipt of
such statement, whether any such Person or Persons is a Prohibited Person. If
EDC fails to so advise The Times within such fifteen (15) Business Day period
as to whether any such Person or Persons is a Prohibited Person, such Person
shall be deemed not to be a Prohibited Person. Notwithstanding anything to
the contrary contained herein, once The Times has entered into a Design
Contract or Design Contracts with a Person or Persons based on EDC's advice
that such Person or Persons are not Prohibited Persons (or EDC's failure to
notify The Times within the fifteen (15) Business Day period described above
that such Person or Persons are Prohibited Persons), The Times shall in no
event be required to terminate such Design Contract or Design Contracts even
if EDC thereafter determines that such Person or Persons were, or had become,
Prohibited Persons and the rights of The Times and EDC under this Agreement
shall be unaffected and remain in full force and effect as if such Person or
Persons were not, or had not become, Prohibited Persons.
(c)(1) Prior to letting any Construction Contract to be entered into
directly by The Times or by The Times's Construction Manager, if any, The
Times shall submit to EDC a
-26-
list of proposed bidders and, to the extent known to The Times, identify the
principals of the bidders (the "Proposed Bidders List"). EDC shall advise The
Times in writing within fifteen (15) Business Days after receipt of the
Proposed Bidders List, as to which bidders on the Proposed Bidders List are
acceptable or unacceptable and, if any bidders are unacceptable, the specific
reasons therefor. EDC may also advise The Times, within such fifteen (15)
Business Day Period, of additional bidders that it proposes that The Times
include on the Proposed Bidders List. If EDC fails to provide such advice
within such fifteen (15) Business Day Period, all of the bidders on the
Proposed Bidders List shall be deemed approved. For purposes hereof, any
bidder other than a bidder that is a Prohibited Person or has received a
negative contractor evaluation from EDC or the City within the five (5) years
prior to the date of the Proposed Bidders List, shall be deemed acceptable to
EDC. The Times shall obtain proposals from at least six (6) qualified bidders
from the list of acceptable bidders and if EDC has proposed additional bidders
to be included on the Proposed Bidders List as provided above, at least three
(3) of such six (6) qualified bidders shall be bidders proposed by EDC (or if
EDC has proposed less than three (3) bidders, then the qualified bidders shall
include all the bidders proposed by EDC). The Times shall submit to EDC by
hand delivery, registered or certified mail, or national overnight courier
service, a bid summary, analysis and statement as to which bidder The Times
intends to select, which statement shall be certified by The Times and give
specific reasons for The Times's preference. The Times shall not accept a bid
which is not the lowest bid without EDC's prior written approval. EDC, in its
sole discretion, may (but is not obligated to)
-27-
either accept a bid which is not the lowest bid if necessary to enable The
Times to achieve the total W/MBE Participation Dollar Value and the total
W/MBE Percentage or, in the alternative, reduce the W/MBE Participation Dollar
Value and the W/MBE Percentage in an amount equal to the portion of the W/MBE
Participation Dollar Value and the W/MBE Percentage that would have been
achieved by accepting such bid. EDC's approval of a bid which is not the
lowest bid shall be deemed given if not denied in writing within ten (10)
Business Days of The Times's written request therefor.
(2) EDC reserves the right, at any time prior to The Times's
acceptance of a bid in accordance with Sec.1.2(c)(1) above, to withdraw its
prior approval of the bidder chosen in the event that EDC shall learn that the
bidder shall have committed any act, or if the bidder shall become the subject
of any investigation or legal proceeding, either or both of which would have
disqualified the bidder from receiving EDC's original approval. Nothing
contained in Sec.1.2(c)(1) or this Sec.1.2(c)(2) shall limit The Times's right
to reject all bids in its sole discretion.
(3) Notwithstanding anything to the contrary contained herein, in the
event that EDC (A) does not approve any bidder selected by The Times, or (B)
withdraws its prior approval of any bidder chosen in accordance with
Sec.1.2(c)(1) above, then The Times shall have the right to revoke its election
to reconstruct the Whitestone Road. Upon The Times's revocation of its
election and reimbursement to EDC of the Funding previously disbursed as
provided in the foregoing sentence, this Agreement shall terminate and
thereafter neither
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Party shall have any rights against or obligations to the other Party by
reason of this Agreement, except as otherwise specifically set forth in this
Agreement.
(4) For purposes hereof, the term "Prohibited Person" shall mean:
(i) Any Person (A) that is in default or in breach, beyond any
applicable grace period, of its obligations under any
material written agreement with EDC or Landlord, or (B) that
directly or indirectly controls, is controlled by, or is
under common control with a Person that is in default or in
breach, beyond any applicable grace period, of its
obligations under any material written agreement with EDC or
Landlord, unless, such default or breach has been waived in
writing by EDC or Landlord, as the case may be.
(ii) Any Person (A) that has been convicted in a criminal
proceeding for a felony or any crime involving moral
turpitude or that is an organized crime figure or is reputed
to have substantial business or other affiliations with an
organized crime figure, or (B) that directly or indirectly
controls, is controlled by, or is under common control with
a Person that has been convicted in a criminal proceeding
for a felony or any crime involving moral turpitude or that
is an organized crime figure or is reputed to have
substantial business or other affiliations with an organized
crime figure.
-29-
(iii) Any government, or any Person that is directly or indirectly
controlled (rather than only regulated) by a government,
that is finally determined to be in violation of (including,
but not limited to, any participant in an international
boycott in violation of) the Export Administration Act of
1979, as amended, or any successor statute, or the
regulations issued pursuant thereto, or any government that
is, or any Person that, directly or indirectly, is
controlled (rather than only regulated) by a government that
is subject to the regulations or controls thereof.
(iv) Any government, or any Person that, directly or indirectly,
is controlled (rather than only regulated) by a government,
the effects or the activities of which are regulated or
controlled pursuant to regulations of the United States
Treasury Department or executive orders of the President of
the United States of America issued pursuant to the Trading
with the Enemy Act of 1917, as amended.
(v) Any Person that is in default in the payment to the City of
any real estate taxes, sewer rents or water charges
totalling more than $10,000, (or any person that directly
controls, is controlled by, or is under common control with
a Person in such default), unless such default is then being
contested in good faith in accordance with the law.
(vi) Any Person (A) that has owned at any time during the three
(3) years immediately preceding a determination of whether
such Person is a
-30-
Prohibited Person any property which, while in the ownership
of such Person, was acquired by the City by in rem tax
foreclosure, other than a property in which the City has
released or is in the process of releasing its interest
pursuant to the Administrative Code of the City or (B) that,
directly or indirectly controls, is controlled by, or is
under common control with such a Person.
(d) The Times shall provide EDC with a list of all Contractors, other
than suppliers, whose Contract amount totals more than $100,000, on the form
attached hereto as Exhibit B. The Times will furnish each Contractor, other
than a supplier, whose Contract amount totals more than $100,000, with a
subcontractor questionnaire in the form attached hereto as Exhibit C and/or
such other qualification and background investigation form(s) as may be used
by the City at such time ( collectively, "Investigation Forms") provided by
EDC to The Times, and shall use its good faith efforts to cause each such
Contractor to fill out and complete the Investigation Forms in a timely
fashion but in no event later than the completion of the work performed by
such Contractor pursuant to its Contract.
(e) All Construction Contracts, in order to be eligible for
disbursement under this Agreement, shall provide, in substance:
(1) that the Contractor shall obtain and maintain comprehensive
general liability insurance and other insurance in the amounts and
in accordance with the applicable provisions set forth in Appendix
C;
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(2) that neither the Contractor nor any of its employees or
subcontractors is or shall be deemed to be an agent, servant,
employee or contractor of the City or EDC by virtue of this
Agreement or by virtue of any approval, permit, license, grant,
right or other authorization given the City, EDC or any of their
respective officers, officials, directors, members, agents or
employees; and that the Contractor shall not commence any legal
proceeding against the City or EDC to recover any compensation
which may be payable under the Construction Contract;
(3) that the Contractor is solely responsible for the work, direction,
compensation and personal conduct of its employees and
subcontractors;
(4) that the Contractor shall indemnify and hold harmless the City,
EDC and their respective agents, officers, directors, officials,
members and employees from any and all claims, judgments or
liabilities to which they may be subject because of any act or
omission of the Contractor or its respective agents, officers,
directors, employees or subcontractors arising out of or in
connection with the pertinent Construction Contract or because of
any negligence, fault or default of the Contractor or its
respective agents, employees, officers, directors or
subcontractors (as the case may be);
(5) that the Contractor shall maintain accurate, readily auditable
records and accounts with supporting documentation, in accordance
with Accounting Principles, of all work performed, and receipts
and expenditures made, in
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connection with the pertinent Construction Contract, and that the
Contractor shall make such records and accounts available to EDC,
the City and each of their respective agents and employees, for
inspection and audit at reasonable times and upon reasonable
written notice for a period of six (6) years after completion of
the pertinent Construction Contract;
(6) provisions incorporating the requirements of Sec.6.5(a) (Compliance
with Applicable Law) and Sec.9.1 (Conflict of Interests); and
(7) that the Contractor represents and warrants, and shall cause its
subcontractors and material suppliers to represent and warrant,
that state and local sales tax has been excluded from the contract
price, to the extent applicable; provided, however, that the
Contractor and its subcontractors and material suppliers shall be
responsible for and pay any and all applicable taxes, including
sales and use taxes, imposed upon leased tools, machinery,
equipment, and upon all supplies and materials and other property
which are consumed in the course of construction or for any other
reasons not incorporated into the Construction Site.
(f) All Design Contracts, in order to be eligible for disbursement
under this Agreement, shall:
(1) provide, in substance that the Consultant shall obtain and
maintain comprehensive general liability insurance and other
insurance in the amounts
-33-
and in accordance with the applicable provisions set forth in
Appendix C-1; and
(2) contain substantially the same provisions as the provisions
described in Sec.1.2(e)(2), (3), (4), (5) and (6) hereof.
(g) Any proposed changes or amendments to a Construction Contract or
Design Contract which affect the provisions to be included in such
Construction Contract pursuant to Sec.1.2(e) hereof, or the provisions to be
included in such Design Contracts pursuant to Sec.1.2(f) hereof, shall not be
made unless approved in writing by EDC, which approval shall not be
unreasonably withheld and shall be deemed given unless denied in writing
within five (5) Business Days after EDC's receipt of The Times's written
request for such approval, and no Funding shall be disbursed in respect of any
Work affected by any such change or amendment unless approved in writing or
deemed approved by EDC.
(h) In addition to the provisions required to be included in the
Construction Contracts and Design Contracts pursuant to Sec.1.2(e) and
Sec.1.2(f) hereof, The Times may include in the Construction Contracts (and
the bid packages therefor) and the Design Contracts such other provisions as
The Times deems necessary to incorporate the requirements of this Agreement
therein, including without limitation, that the Contractor or Consultant
shall not receive payment under its Construction Contract or Design
Contract, as applicable, until all the conditions for disbursement described
in Article 4 hereof have been satisfied and The Times has received payment
of the Funding from EDC under this Agreement.
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Sec.1.3 Liaison to EDC
--------------
The Times agrees that it will notify EDC, in writing, prior to the
commencement of any Work, of the Person or Persons on The Times's staff
primarily responsible to communicate with EDC regarding the performance of the
Work, to be available to the extent reasonably required by EDC in connection
with this Agreement. The Times further agrees to use its good faith efforts
to notify EDC in writing of any intended substitution of said Person or
Persons at least five (5) days prior to the date such substitution will take
effect but in any event will notify EDC in writing of any such substitutions
on the day such substitution will take effect.
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ARTICLE TWO - THE FUNDING
-------------------------
Sec.2.1 Determination of Total Reimbursement Amount; Reallocation of
------------------------------------------------------------------
Funding from Funding Agreement #1 to this Agreement. (a) Upon Final
- ---------------------------------------------------------
Completion of the Improvements, The Times shall submit to EDC by hand
delivery, registered or certified mail, or national overnight courier service,
a written notice (the "Final Completion Notice") stating that the Improvements
have been completed in accordance with the terms of this Agreement and setting
forth the total amount of Eligible Costs incurred by The Times in connection
with the design and construction of the Improvements. The Final Completion
Notice shall be accompanied by such documents and materials, more particularly
set forth in Article 4 hereof, not already submitted to EDC in accordance with
Article 4 hereof, in support of its statement of Eligible Costs incurred (the
"Final Requisition Report"). EDC shall advise The Times, within fifteen (15)
days after receipt of the Final Completion Notice (the "Final Completion
Notice Dispute Period"), that it agrees and accepts the Times's determination
of Eligible Costs incurred or that it disagrees with such determination of
Eligible Costs incurred. If EDC fails to notify The Times, within the Final
Completion Notice Dispute Period, of its agreement and acceptance of or
disagreement with The Times's determination, such determination shall be
deemed accepted by EDC and such amount shall be deemed to be the Total
Reimbursement Amount. If EDC accepts The Times's determination of the total
amount of Eligible Costs incurred in connection with the design and
construction of the Improvements, such amount shall be deemed to be the Total
-36-
Reimbursement Amount. If EDC disagrees with such determination, EDC will
notify The Times in writing, within the fifteen (15) day time period specified
herein, of such disagreement, specifying in a detailed manner the reasons for
such disagreement and what it believes to be the total amount of Eligible
Costs incurred by The Times in connection with the design and construction of
the Improvements ("EDC's Disagreement Notice"). The Times shall advise EDC,
within fifteen (15) days after receipt of EDC's Disagreement Notice (the "EDC
Disagreement Notice Dispute Period"), that it agrees and accepts EDC's
determination or that it disagrees with EDC's determination. If The Times
accepts EDC's determination of the total amount of Eligible Costs incurred in
connection with the design and construction of the Improvements, such amount
shall be deemed to be the Total Reimbursement Amount. If The Times's
disagrees with such determination, The Times will notify EDC in writing,
within the EDC Disagreement Notice Dispute Period, of such disagreement
specifying in a detailed manner the reasons for such disagreement ("The
Times's Disagreement Notice"). If The Times fails to notify EDC within the
EDC Disagreement Notice Dispute Period of its agreement and acceptance or
disagreement of EDC's determination, such determination shall be deemed
accepted by The Times and such amount shall be deemed to be the Total
Reimbursement Amount. Upon EDC's receipt of The Times's Disagreement Notice,
the Parties shall attempt to arrive at a mutually acceptable determination of
the amount of the total Eligible Costs incurred by The Times in connection
with the design and construction of the Improvements, provided however that
that The Times shall have the right to submit to arbitration, in accordance
with the
-37-
provisions of Article 34 of the Lease, the proper amount of the Total
Reimbursement Amount, taking into account the terms and conditions of this
Agreement and the Lease. The determination in such arbitration of the Total
Reimbursement Amount shall be conclusive and binding upon the parties hereto.
(b) Within four (4) months after the Total Reimbursement Amount is
established in accordance with Sec.2.1(a) hereof, EDC shall obtain such
approvals and perform such acts as may be necessary to cause a portion of the
funds allocated under Funding Agreement #1 to be reallocated under this
Agreement. The Times understands that the total amount of funds that shall be
so reallocated shall be equal to the Total Reimbursement Amount, provided that
in no event shall such amount exceed $3,750,000. The Times further understands
and acknowledges that (i) the funds to be reallocated from Funding Agreement
#1 to this Agreement shall consist solely of such funds allocated under
Funding Agreement #1 to pay for Phase Five Construction (as such term is
defined in Funding Agreement #1) and that The Times shall have no right to
seek the reallocation of funds from Funding Agreement #1 to this Agreement
from any other source of funds under Funding Agreement #1 other than that
allocated for Phase Five Construction, and (ii) once the reallocation of funds
from Funding Agreement #1 to this Agreement occurs, The Times shall have no
further right to seek any additional reallocations.
(c) Notwithstanding anything to the contrary contained herein, in no
event shall EDC be required to disburse the Funding to The Times if the Total
Reimbursement Amount is $650,000 or less.
-38-
Sec.2.2 Agreement to Fund. (a) Subject to the terms, conditions,
--------------------
representations and warranties contained in this Agreement, EDC agrees to
disburse to The Times, in an amount not to exceed the Funding, and The Times
agrees to accept the Funding, for performance by The Times of the Work. The
Times agrees to utilize the Funding solely in connection with the Work.
Subject to EDC's remedies upon an Event of Default and except as otherwise
provided herein, the Funding, once disbursed under this Agreement, shall not
be subject to any reimbursement whatsoever to EDC.
(b) The Times acknowledges that neither EDC nor the City has
represented or warranted that the Funding will be sufficient to pay for the
entire cost of the Work. The Times agree that The Times will be solely
responsible to the extent that the Eligible Costs of the Work exceed the
amount of the Funding for any reason. The Times acknowledges that the Funding
is not a fee or other compensation earned by or paid to The Times.
Sec.2.3 Disbursements. (a) The Times agrees to accept the Funding and to
--------------
utilize the proceeds thereof solely in connection with the Work. After the
Final Completion of the Work, disbursements shall be made by EDC to The Times
as follows:
(1) With respect to Hard Costs, after receipt by EDC of all items
required by Sec.4.2 hereof, equal to the product of (i) the measurements of
the quantities of items attributable to the Construction Work (as certified by
the Resident Engineer or the Construction Manager) and (ii) the unit price for
each such item;
-39-
(2) With respect to Resident Engineer Costs, after receipt by EDC of
all items required by Sec.4.2 hereof, equal to the Resident Engineer Costs
calculated based on the Resident Engineer's fee schedule attached to the
Construction Contract with respect to the Resident Engineer;
(3) Intentionally omitted;
(4) With respect to Design Costs, after receipt by EDC of all items
required by Sec.4.2 hereof, equal to the Design Costs calculated based on the
Consultant's fee schedule attached to the Design Contract with respect to the
Consultant.
(b) Intentionally omitted.
(c) All disbursements shall be made by check at the principal office
of EDC, or at such other place within the City of New York as EDC may
designate. Disbursement requests shall be submitted within the time periods
and in the manner provided therefor in Article 4.
(d) No portion of the Funding shall be advanced for materials not
incorporated into the Construction Site.
(e) Disbursements of the Funding shall be made by EDC within four (4)
months after all of the following occurs: (1) EDC receives from The Times a
Final Completion Notice, together with a Final Requisition Report and all such
other documentation as may be required or reasonably requested by EDC, and
(ii) the Total Reimbursement Amount shall have been established in accordance
with Sec.2.1(a) hereof.
-40-
Sec.2.4 Funding of Costs of Changes
---------------------------
(a) Notwithstanding any provision to the contrary contained in this
Agreement, EDC shall not disburse increased Funding on account of Eligible
Costs covered by changes to the Final Plans and Specifications except as
expressly provided in this Sec.2.4. The Eligible Costs incurred in connection
with all changes made in accordance with Sec.2.4(b) hereof shall be paid for
with the Funding.
(b) Changes. Except as limited in this Sec.2.4, EDC shall disburse the
--------
Funding on account of (i) each change to the Plans and Specifications that is
not a Material Change, provided that the need for such change does not result
from or arise out of an error or omission on the part of The Times or an
Affiliate, any Contractor or subcontractor, and (ii) each Material Change,
provided that, subject to the provisions of Sec.2.4(c) hereof, EDC shall not
be required to disburse the Funding with respect to any material change which
EDC, acting in its reasonable discretion, has disapproved and (y) the need for
such change does not result from or arise out of an error or omission on the
part of The Times or an Affiliate, any Contractor or subcontractor.
(c) Arbitration of Material Changes. The Times shall have the right to
--------------------------------
submit to arbitration, in accordance with the provisions of Article 34 of the
Lease and substantially in accordance with the procedure set forth in Sec.2.1
hereof, whether EDC has acted reasonably in disapproving any Material Change.
The aribtration conducted pursuant to this Sec.2.4(c) shall determine the
portion, if any, of such Material Change that should be included
-41-
in the Total Reimbursement Amount and such determination shall be binding upon
EDC and The Times.
-42-
ARTICLE THREE - TERM
--------------------
Sec.3.1 Term. The term of this Agreement (the "Term") shall commence upon
-----
the execution of this Agreement by both Parties and the unconditional delivery
of this Agreement by each Party to the other and shall expire upon the
occurrence of any of the following events: (i) the date on which a
Certificate of Occupancy with respect to the Project is issued if The Times
fails to deliver to EDC a Road Election Notice prior to such date, (ii) the
date on which EDC receives notice from The Times, in accordance with Sec.1.1(b)
hereof, of The Times's revocation of its election to reconstruct the
Whitestone Road, or (iii) if The Times has delivered to EDC a Road Election
Notice and has not revoked such election and has in fact commenced the
Construction Work, then upon the complete disbursement by EDC to The Times of
all amounts payable to The Times pursuant to the terms of this Agreement,
unless sooner terminated by EDC in accordance with this Agreement. All
rights, remedies and liabilities arising prior to the termination or
expiration of the Term shall survive the date of termination or expiration, as
the case may be.
-43-
ARTICLE FOUR - CONDITIONS FOR DISBURSEMENT
------------------------------------------
Sec.4.1 Initial Submissions by The Times. EDC shall not be obligated to
---------------------------------
disburse any of the Funding to The Times unless, at any time prior to the
Actual Road Reconstruction Commencement Date, EDC shall have received the
following documents, together with a cover sheet (a "Completed Cover Sheet")
listing the items submitted:
(a) a legal opinion by counsel to, or general counsel of, The Times
(addressed to EDC) in the form annexed hereto as Exhibit E, to the
effect that (I) this Agreement is legal, valid and binding upon
and enforceable against The Times in accordance with its terms
(subject, as to enforceability, to principles of equity and
applicable bankruptcy, insolvency and other laws affecting the
rights of creditors generally), and (II) The Times has been duly
authorized to execute and deliver this Agreement;
(b) a certificate, in the form annexed hereto as Exhibit F, of an
authorized officer of The Times certifying the specimen signature
of each officer, director or agent of The Times authorized to
deliver Requisition Reports under this Agreement;
(c) copies of any then executed Construction Contract(s) and Design
Contracts, containing all the provisions required pursuant to
Sec.1.2(e) and Sec.1.2(f) hereof;
(d) a collateral assignment by The Times to EDC of The Times's right,
title and interest to the Construction Contracts and Design
Contracts, which collateral
-44-
assignment shall be effective only upon an Event of Default and
the termination of this Agreement; and
(e) as described in Sec.6.12 hereof, a completed and duly executed
W/MBE Plan in the form annexed hereto as Exhibit H.
Sec.4.2 Documentation for Disbursements on Account of Eligible Costs. EDC
-------------------------------------------------------------
shall not be obligated to disburse the Funding unless the following
conditions, in addition to the conditions described in Sec.4.1, shall have
been satisfied:
(a) The following documents, in form and substance reasonably
satisfactory to EDC, together with a Completed Cover Sheet, shall, except to
the extent previously submitted by The Times, be delivered to EDC once a month
commencing on the Actual Road Reconstruction Commencement Date and continuing
until Final Completion:
(i) copies of all Approvals necessary to lawfully perform the
Construction Work for which the Funding is being sought in
accordance with the Final Plans and Specifications;
(ii) a report executed and certified by an authorized representative of
The Times (and addressed to EDC), setting forth: (x) the amount of
funds requested by Contractors and Consultants to be paid in
connection with the performance of the Work for such monthly
reporting period, (y) an itemization of the Eligible Costs for
which such payment is sought, and (z) either (I) a list of
Contractors whose work is covered by the report, indicating the
amount
-45-
requested with respect to each such Construction Contract, or (II)
that the work covered by the report is Design Services and
indicating the amount requested with respect to such Design
Services, together with a certification by such authorized
representative that the Eligible Costs described in accordance
with (y) above have not previously been paid by The Times to such
Contractors or Consultants. The report shall be accompanied by the
certification described in Sec.6.1 hereof and copies of (I) all
Construction Contracts and/or Design Contracts on account of which
payment is being sought that have not been previously delivered,
containing all the provisions required pursuant to Sec.1.2(e) and
Sec.1.2(f) hereof (or for Construction Contracts and Design
Contracts that have been previously delivered, a statement to that
effect and copies of any amendments thereof); (II) as applicable,
requisitions or applications for payment by the Consultant,
Resident Engineer or the Construction Manager to The Times and
with regard to Design Costs, supporting bills, invoices or other
documentation reflecting such Eligible Costs; (III) as applicable,
a copy of an "Application and Certificate for Payment",
substantially in the forms annexed hereto as Exhibit G, completed
and executed by the Resident Engineer or the Construction Manager
with respect to all work performed by Contractor(s) and covered by
The Times's report, together with a statement of the Resident
Engineer or the Construction Manager addressed to EDC stating the
quantities of materials
-46-
installed with respect to the Construction Work completed as of the date of
the report and that, to the Resident Engineer's or the Construction Manager's
knowledge, the Construction Work performed by the Contractor(s) and covered by
the report has been performed to the Resident Engineer's or the Construction
Manager's reasonable satisfaction substantially in accordance with the Final
Plans and Specifications; (IV) any change order requests made by the
Contractors to The Times during the reporting period; and (V) at the request
of EDC, in connection with each payment request other than the first payment
request made by Contractors, subcontractors and suppliers of The Times,
partial releases of liens from such Contractors, subcontractors and suppliers
in respect to Construction Work performed under a Construction Contract or
subcontract and for which the Eligible Costs in connection therewith that are
to be reimbursed with the Funding have been paid for by The Times pursuant to
a prior requisition (the items described in this paragraph (ii), collectively,
the "Requisition Report");
(iii) such additional documents, data or information reasonably
requested by EDC with respect to the Construction Site and the
Work or in support of the Requisition Report, including without
limitation, documents as would customarily be required by City
agencies engaged in projects similar in scope to the Work such as
trade payment breakdowns in support of all
-47-
subcontractors' requisitions to the Resident Engineer,
Construction Manager or General Contractor (as the case may be),
if any, invoices, and receipts; and
(iv) a written statement by DLS certifying that each Contractor
performing Construction Work has complied with the City's equal
employment requirements under mayoral Executive Order No. 50
(April 25, 1980), as amended, if applicable, or evidence from The
Times or DLS that Executive Order No. 50 or its successor does not
apply, it being understood that such written statement or other
satisfaction by DLS for each Contractor only needs to be submitted
at the time of the submission of the first requisition covering
such Contractor's work and it being further understood that,
notwithstanding anything to the contrary contained herein, for so
long as New York State Labor Law Sec.220 or any successor statute
requires contractors performing work on public works projects to
pay journey-level wages to trainees, the trainee requirements of
Executive Order No. 50 shall not be applicable to the Construction
Work, the Contractors and the subcontractors and the Contractors
and the subcontractors shall in no event be deemed to be in
noncompliance with Executive Order No. 50 due to noncompliance
with such trainee requirements.
(b) As of the date of the Requisition Report, (i) the representations
and warranties made in Article Five shall be correct and complete and (ii)
there shall exist no unbonded public improvement lien relating to the Funding;
provided, however, that in the
-48-
event there exists an unbonded public improvement lien relating to the
Funding, EDC shall continue to disburse to The Times those portions of the
Funding which are otherwise payable hereunder reduced only by the amount of
such unbounded lien.
Sec.4.3 Direction of Submissions. All submissions to EDC pursuant to this
-------------------------
Article Four shall be directed to EDC's Vice President for Construction.
Sec.4.4 Failure to Make Submissions on a Timely Basis. Nothing contained
-----------------------------------------------
herein shall be construed to cause The Times to forfeit all or any portion of
the Funding as the result of (i) its failure to make any submission required
hereunder on a timely basis, or (ii) its failure to provide EDC with the
documents described in this Article 4 (subject to the obligation of The Times
to provide all such documents to qualify for the disbursement of the Funding);
provided, however, that if The Times fails to make submissions on a timely
basis or fails to make complete submissions, then EDC shall have an additional
period of time as may be reasonable, beyond the Final Completion Notice
Dispute Period, to review the Final Requisition Report and the Final
Completion Notice and advise The Times, in accordance with Sec.2.1(a) hereof,
of its agreement and acceptance of, or disagreement with, The Times's
determination of Eligible Costs incurred in connection with the design and
construction of the Improvements.
-49-
ARTICLE FIVE - REPRESENTATIONS OF THE TIMES
-------------------------------------------
To induce EDC to disburse the Funding, The Times represents and warrants
as follows:
Sec.5.1 Organization; Standing. The Times is a corporation duly organized
-----------------------
and validly existing under the laws of the State of New York and has all
requisite power, authority and legal right to execute, deliver and perform its
obligations under this Agreement. A copy of The Times's certificate of good
standing from the Secretary of State of the State of New York is attached
hereto as Appendix D, and hereby made a part hereof.
Sec.5.2 Intentionally omitted.
Sec.5.3 Conflict, etc. under Other Documents. The execution and delivery
-------------------------------------
of this Agreement by The Times is not, and the performance of this Agreement
by The Times will not be, effectively prohibited or prevented by, or in breach
of (i) the certificate of incorporation or by-laws of The Times, or (ii) to
the best of The Times's knowledge, any presently existing or effective law,
judgment, order, writ, injunction, decree, rule or regulation of any court or
Governmental Authority applicable to The Times, or (iii) any agreement,
instrument or undertaking which is binding on The Times.
-50-
Sec.5.4 No Litigation. As of the date of this Agreement there are no
--------------
suits or proceedings pending or, to the best of The Times's knowledge,
threatened against The Times which would materially affect the construction of
the Improvements, the consummation of the transactions contemplated by this
Agreement, or the full performance of the obligations of The Times under this
Agreement.
Sec.5.5 Nonrecourse. From and after Final Completion, EDC and the City
------------
shall have no recourse against The Times with respect to the Work. For the
one year period commencing with Final Completion, The Times shall have no
recourse against EDC or the City, with respect to the Work.
-51-
ARTICLE FIVE-A - REPRESENTATIONS AND WARRANTIES OF EDC
------------------------------------------------------
To induce The Times to enter into this Agreement and perform the Work,
EDC represents and warrants as follows:
Sec.5A.1 Organization; Standing. EDC is a not-for-profit corporation,
------------------------
organized pursuant to Sec.1411 of the New York State Not-For-Profit Corporation
Laws and has all the requisite power, authority and legal right to execute,
deliver and perform its obligations under this Agreement.
Sec.5A.2 Due Authorization; Enforceable Obligations. This Agreement has
--------------------------------------------
been duly authorized, executed and delivered by EDC and constitutes a legally
binding obligation of EDC enforceable in accordance with its terms. A legal
opinion by general counsel of EDC (addressed to The Times) providing that this
Agreement is legal, valid and binding upon and enforceable against EDC in
accordance with its terms (subject, as to enforceability, to principles of
equity and applicable bankruptcy, insolvency and other laws affecting the
rights of creditors generally), is attached hereto as Appendix E and hereby
made a part hereof. A certificate of the Secretary of EDC, dated as of the
date of this Agreement, certifying to the adoption of resolutions by the Board
of Directors of EDC authorizing the execution and delivery of this Agreement
by EDC is attached hereto as Appendix F and hereby made a part hereof.
-52-
ARTICLE SIX
-----------
COVENANTS
---------
Sec.6.1 Requisitions Update The Times's Representations. The Times
---------------------------------------------------
covenants that each Requisition Report presented to EDC under Article Four
shall be accompanied by a completed certification, in the form attached hereto
as Exhibit I.
Sec.6.2 Compliance with Other Agreements and Law; Legal Status. During the
-------------------------------------------------------
Term, The Times shall:
(a) comply with all of the terms, conditions and covenants now or in
the future binding upon or applicable to The Times under this Agreement;
(b) do all things necessary to maintain and keep in full force and
effect its existence, rights and privileges under the laws of the State of New
York; and
(c) comply with, and do all things reasonably necessary to cause the
Work to be performed in compliance with all Requirements applicable to the
Work and/or the Construction Site.
Sec.6.3 Maintenance of and Compliance with Insurance Requirements. The
------------------------------------------------------------
Times shall maintain or cause to be maintained the insurance coverage
described in Appendix C and Appendix C-1 attached hereto. The Times shall
comply with all of the applicable
-53-
provisions of such insurance policies. Nothing contained in this Sec.6.3 is
intended to confer any rights upon any third party.
Sec.6.4 Maintenance of Office. The Times will maintain an office in the
----------------------
City of New York where notices with respect to this Agreement may be delivered
to it and inspections and audits in accordance with Sec.6.7 may be conducted.
Sec.6.5 Compliance with Applicable Law. (a) The Times shall include, or
-------------------------------
cause to be included, the following requirements, as applicable, in all
Construction Contracts and all Design Contracts, and shall require, or cause
to be required, all subcontracts with respect to the Construction Work and the
Design Services to include the same requirements, so that the Contractor(s)
and any subcontractors and the Consultant(s) and any subconsultants shall
agree, in substance:
(i) to comply with (1) the applicable provisions of City and New
York State equal employment and affirmative action laws applicable
to construction contractors and non-construction contractors which
are annexed to and made a part of this Agreement as Appendix G
(consisting of "Construction Contract Rider" pursuant to mayoral
Executive Order No. 50, provided, however that the trainee
requirements set forth therein shall be inapplicable for so long
as New York State Labor Law Sec. 220 or any successor statute
requires contractors performing work on public works projects to
pay journey-level wages to
-54-
trainees), and the filing of any required construction employment
reports with the City's Bureau of Labor Services on the forms
annexed hereto as Appendix H; (2) New York State Labor Law
Sec.220e, and (3) City Administrative Code Sec.6-108;
(ii) to comply with the applicable provisions of the New York
City Noise Control Code (Administrative Code Sec.24-216, as amended,
and related regulations); and
(iii) to pay no less than prevailing wage rates and supplemental
benefits to laborers, workers and mechanics pursuant to Sec.220(3)
of the New York State Labor Law in accordance with the currently
scheduled rates, as amended from time to time.
(b) The Times shall use its good faith efforts to promptly, diligently
and continuously enforce the full and faithful performance by the Contractors
and Consultants with whom The Times enters into Construction Contracts and
Design Contracts hereof with the provisions of law referred to in Sec.6.5(a)
hereof, and shall use its good faith efforts to cause such Contractors and
Consultants to enforce such compliance by the subcontractors and materials
suppliers hired by such Contractors in connection with the Construction Work
and by the subconsultants hired by such Consultants in connection with the
Design Services.
Sec.6.6 Assignment. Without EDC's prior written consent, The Times shall
-----------
not assign this Agreement except that The Times may assign this Agreement to
an Affiliate without
-55-
EDC's prior written consent, provided that such Affiliate assumes all the
rights and obligations of The Times under this Agreement, and that all the
representations, warranties and covenants made by The Times in this Agreement
shall be similarly made by such Affiliate, and further provided that the Times
provides to EDC a copy of the executed written agreement evidencing such
assignment and assumption.
Sec.6.7 Maintenance of Records. The Times agrees to maintain accurate,
-----------------------
readily auditable records and accounts with supporting documentation, of (i)
all of the costs related to the design and construction of the Improvements,
(ii) all of its receipts and expenditures in connection with the Funding and
with the Work, and (iii) all financial accounts and transactions maintained or
undertaken in connection with this Agreement. The Times shall make such
records available for inspection and audit at The Times's place of business
within New York City by EDC and the City at reasonable times and upon
reasonable advance notice. All such records and accounts shall be maintained
for a period of six years after termination of this Agreement. The provisions
of this Sec.6.7 shall survive the expiration or earlier termination of this
Agreement.
Sec.6.8 Intentionally omitted.
Sec.6.9 Due Application of Funding Proceeds. The Times shall receive and
------------------------------------
hold the proceeds of the Funding (including any insurance proceeds arising out
of any casualty
-56-
affecting property purchased with the Funding) as a trust fund to be applied
exclusively for the payment of Eligible Costs (or reimbursement to The Times
for the payment of Eligible Costs) in accordance with the terms of this
Agreement and shall not use any part of the same for any other purpose.
Sec.6.10 Defects; Non-Conforming Work. The disbursement of any portion of
-----------------------------
the Funding shall not constitute a waiver of any default by The Times on
account of defective construction work in performance of the Work or deviation
from the Final Plans and Specifications. No part of the Funding shall be
disbursed for the correction of such non-conforming work unless such non-
conforming work was the result of a deviation from the Final Plans and
Specifications necessitated due to unexpected field conditions and was
performed in accordance with good construction practices and EDC approved
(which approval shall not be unreasonably withheld or delayed), in writing,
the performance of such work.
Sec.6.11 Participation by Women and Minority Owned Businesses
----------------------------------------------------
(a) EDC is committed to maximizing meaningful participation by women-
owned business enterprises ("WBEs") and minority-owned business enterprises
("MBEs") (WBEs and MBEs collectively referred to as "W/MBEs") in its
contracting opportunities. Based on its review of the scope of the Work and
the lists of certified W/MBEs maintained by the interested government entities
identified below, EDC estimates that a total aggregate
-57-
W/MBE percentage of twenty-five percent (25%) can be attained by The Times for
the Work. Accordingly, prior to receipt of any disbursements hereunder, The
Times shall complete a utilization plan (the "W/MBE Plan"), in the form of
Exhibit H attached hereto, describing The Times's plan for participation of
W/MBEs in the Work.
(b) In order to be considered W/MBEs for purposes of inclusion in the
W/MBE Plan submitted by The Times, the WBEs and MBEs identified in the W/MBE
Plan must have received certification, as WBEs and/or MBEs, from the New York
City Department of Business Services ("DBS"). Businesses that have been
certified as being women or minority owned by the New York State Department of
Economic Development or the Port Authority of New York and New Jersey may be
eligible to receive expedited certification from DBS, after completing the DBS
"Expedited Certification Affidavit" in the form of Exhibit H-1 attached
hereto. Each of these entities maintain current lists of certified W/MBEs;
The Times is encouraged to contact these entities in order to obtain copies of
their current lists of certified W/MBEs who may be qualified to participate,
either as Contractors, subcontractors or materials suppliers, in the Work.
Together with submission of the W/MBE Plan, The Times shall submit
verification acceptable to EDC showing that all W/MBEs named in the W/MBE Plan
are certified as WBEs and/or MBEs by DBS prior to the award of the contract
with respect to such Contractor, subcontractor or material supplier.
(c) The Times should use the W/MBE Plan to identify potential W/MBEs
that The Times, the Resident Engineer, the Construction Manager or the General
Contractor
-58-
intends to employ as Contractors, subcontractors or materials suppliers. The
W/MBE Plan requires the identification of the specific trade and/or the
specific material to be supplied by such W/MBEs. The W/MBE Plan requires that
the level of participation by W/MBEs be described based on (i) a dollar value
estimate of participation by W/MBEs (the "W/MBE Participation Dollar Value")
and (ii) the percentage of the total Funding that will be passed on to W/MBEs
(the "W/MBE Percentage").
(d) The Times shall not be required to utilize the specific W/MBEs
listed in the W/MBE Plan and substitutions may be made; however, The Times
shall provide for the participation of W/MBEs in the Work at a level equal to
or greater than the total aggregate W/MBE Participation Dollar Value and the
total aggregate W/MBE Percentage as each are set forth in the W/MBE Plan. The
W/MBE Participation Dollar Value and the W/MBE Percentage recorded on the
W/MBE Plan are a part of this Agreement. The Times cannot reduce the W/MBE
Participation Dollar Value or the W/MBE Percentage.
(e) If The Times breaches the foregoing obligation relating to the
participation of W/MBEs in the Work, then, as its sole and exclusive remedy
against The Times with respect to such breach, EDC shall be entitled to
withhold from disbursement to The Times a portion of the Funding in the amount
equal to the difference between (i) the W/MBE Participation Dollar Value set
forth in the W/MBE Plan and (ii) the actual W/MBE Participation Dollar Value
achieved by, and in fact paid to participating W/MBEs by or on behalf of, The
Times in respect of the completed Work. No portion whatsoever of any of
-59-
the Funding that is withheld pursuant to this Sec.6.11(e) shall be charged to
the account of any W/MBEs employed in respect of the Work.
(f) The Times may substitute other certified W/MBEs for those
identified in the W/MBE Plan, but all W/MBEs must be approved by EDC (which
approval shall not be unreasonably withheld) before being employed, either as
Contractors, subcontractors, or as materials suppliers, in respect of the
Work. The Times may also add additional W/MBEs to the W/MBE Plan provided
that neither the W/MBE Participation Dollar Value nor the W/MBE Percentage
falls below that identified in the W/MBE Plan.
Sec.6.12 No Liens. (a) Without EDC's prior written consent, The Times
---------
shall not create, permit or suffer to exist any mortgage, encumbrance, lien,
security interest, claim or charge against the Construction Site.
(b) The Times will cause the Improvements to be constructed free and
clear of liens of mechanics, material persons and suppliers, including public
improvement liens, or claims for any such liens subject to The Times's right
to cause any such lien to be removed or bonded within sixty (60) days after
the placement of such lien. The costs of removing or bonding such lien shall
be paid by The Times except if such lien was placed solely as a result of
EDC's failure to disburse to The Times the Funding in accordance with this
Agreement, in which case EDC shall pay for the costs of removing or bonding
such lien.
Sec.6.13 Intentionally omitted.
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Sec.6.14 Intentionally omitted.
Sec.6.15 Intentionally omitted.
Sec.6.16 MacBride Principles. The Times hereby agrees that with respect
--------------------
to any Construction Contract entered into for the performance of the
Construction Work and with respect to any Design Contract entered into for the
performance of the Design Services, The Times shall (i) include in such
Construction Contract and Design Contract the requirements of the MacBride
Principles Rider, attached hereto as Appendix J, and shall (ii) require its
Contractors and Consultants (A) to comply with applicable covenants and
representations set forth in Appendix J, and (B) to cause, as applicable, its
contractors, subcontractors, and materials suppliers performing the
Construction Work and its subconsultants performing the Design Services, to
also comply with the requirements of Appendix J. Notwithstanding anything to
the contrary contained herein, the provisions of this Sec.6.16 shall not apply
to any contractor, subcontractor, materials supplier, consultant or
subconsultant with respect to which there is not another contractor,
subcontractor, materials supplier, consultant or subconsultant to perform work
or supply materials of comparable quality at a comparable price.
Sec.6.17 No Waiver of Compliance. The disbursement by EDC of any portion
-------------------------
of the Funding to The Times shall not constitute a waiver of EDC's right to
require compliance
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with any of the covenants contained in this Article Six or otherwise contained
in this Agreement.
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ARTICLE SEVEN - DEFAULT AND TERMINATION
---------------------------------------
Sec.7.1 Events of Default. An "Event of Default" shall exist if any of
------------------
the following shall have occurred:
(a) if The Times shall have applied the Funding in violation of the
covenant set forth in Sec.6.9 and such misapplication was not corrected within
ten (10) Business Days after receipt of written notice thereof; or
(b) if The Times fails to duly observe or perform any of the material
covenants and agreements contained in this Agreement (other than the covenants
contained in Sec.6.9) and if such failure continues for twenty (20) Business
Days after receipt of written notice to The Times by EDC specifying with
particularity such material default and requiring such material default to be
remedied; provided, however, that if because of Unavoidable Delays or if the
nature of the default is such that The Times cannot reasonably be expected to
cure the same within such period, then such material default shall not be an
Event of Default if, within such period (subject to Unavoidable Delays), The
Times commences in good faith to cure such material default and (subject to
Unavoidable Delays) diligently prosecutes such cure to completion; or
(c) if an "Event of Default" (as defined in the Lease) has occurred
under the Lease and EDC has taken action to terminate the Lease in accordance
with the terms thereof; or
(d) if there is any cessation of the Construction Work for any period
in excess of ninety (90) successive calendar days after the date upon which
the Construction Work shall
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commence, unless the cessation of the Construction Work shall have been caused
by Unavoidable Delays and construction or construction-related activities
shall have resumed promptly after the cause of the Unavoidable Delay shall
have been removed and shall be diligently pursued (it being understood that
during any such cessation of the Construction Work, EDC shall have the right,
upon three (3) days prior written notice to The Times, to enter upon the
Construction Site for the purpose of protecting the Construction Site against
deterioration, loss, damage or theft if the Contractor or Contractors
required, pursuant to its respective Construction Contract(s), to provide such
services has ceased providing the services); or
(e) if any representation or warranty by The Times contained in this
Agreement shall be materially false when made or reaffirmed and such
materially false representation or warranty materially adversely affects The
Times's ability to enter into this Agreement and perform the Work in
accordance with the terms hereof.
Sec.7.2 Default Remedies; Exculpation.
------------------------------
(a) Upon an Event of Default, EDC may exercise any right or remedy
permitted to it by law, in equity, or under this Agreement, including, without
limitation, the right to obtain restitution of any portion of the Funding
which is applied by The Times, The Times's employees, agents or contractors in
violation of Sec.6.9, with interest from the date of EDC's disbursement at the
Late Charge Rate. Without limiting the generality of the foregoing, upon an
Event of Default, EDC shall have the right to elect to terminate this
Agreement
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(reserving, however, all remedies provided in this Article Seven or existing
otherwise) or to make no further disbursements until such default is remedied
or determined not to be an Event of Default.
(b) Subject to the provisions of Sec.7.2(c) and Sec.9.11(a) hereof,
the liability of The Times and its Affiliates under this Agreement for damages
or otherwise shall be limited to (i) any sums advanced hereunder to The Times
but not heretofore expended by it, (ii) the proceeds (to the extent actually
received by The Times) of any insurance policies covering or relating to the
Work or the Construction Site, (iii) the obligations of The Times set forth in
Sec.5.7, and (iv) the third party guarantees set forth in Sec.5.7 for the
period prior to their assignment to EDC. In no event shall EDC look to the
property or assets of any of the individuals who are the directors, officers,
employees, shareholders, agents or servants of The Times, and no property or
assets of any of the aforesaid Persons shall be subject to levy, execution or
other enforcement procedure for the satisfaction of The Times's obligations
under this Agreement, except in the event such individual has misapplied the
Funding as described in Sec.7.2(c) below and then only to the extent of the
actual dollar amount that such individual has misapplied the Funding;
provided, however, that if such misapplication was the result of such
individual's fraudulent conduct, such individual's liability shall be as set
forth in Sec.7.2(c)(i) below. Except as specifically set forth herein, in no
event shall The Times Indemnitees be liable for consequential damages under
this Agreement.
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(c)(i) Each of the individuals described in Sec.7.2(b) above shall be
personally liable (as distinguished from collective liability), to the full
extent provided by law, in equity, and by this Agreement if any such relevant
individual shall have applied the Funding in violation of the covenant
contained in Sec.6.9 of this Agreement and such misapplication was not
corrected within ten (10) Business Days of notice thereof; provided, however,
that such liability shall be limited to the actual dollar amount that was
misapplied unless the misapplication was the result of fraudulent conduct, in
which case such liability shall not be limited as provided above.
(ii) The Times shall be liable to the full extent provided by law, in
equity, and by this Agreement if The Times shall have applied the Funding in
violation of the covenant contained in Sec.6.9 of this Agreement and such
misapplication was not corrected within ten (10) Business Days of notice
thereof; provided, however, that such liability shall be limited to the actual
dollar amount that was misapplied unless the misapplication was the result of
fraudulent conduct on the part of The Times as opposed to the fraudulent
conduct of an individual not authorized by The Times to act in such a manner,
in which case such liability shall not be limited as provided above.
(d) No course of dealing on the part of EDC or any failure on the part
of EDC to exercise any right shall operate as a waiver of such right or
otherwise prejudice EDC's remedies. No right or remedy conferred upon or
reserved to EDC is intended to be exclusive of any other right or remedy.
Every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy contained
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in this Agreement or existing at any time at law or in equity, or otherwise,
and may be exercised from time to time and as often and in such order as EDC
may deem appropriate. The exercise of any right or remedy shall not be
construed as an election or a waiver of any other right or remedy. No delay
or omission of EDC in exercising any right or remedy occurring upon an Event
of Default shall impair any such right or remedy or constitute a waiver of or
acquiescence in such Event of Default.
(e) The provisions of this Sec.7.2 shall survive the expiration or
termination of the Term.
Sec.7.3 Termination. If, upon the occurrence of an Event of Default
------------
described in Sec.7.1(a), (b), (d) or (e) above, EDC elects to terminate this
Agreement, or for any other reason provided for under this Agreement, this
Agreement is terminated, EDC agrees that, provided that the Lease remains in
full force and effect and no "Event of Default" (as defined in the Lease)
shall have occurred and be continuing thereunder, EDC shall have the right
(but shall not be obligated) to undertake the reconstruction of the Whitestone
Road in accordance with the Final Plans and Specifications with such
reasonable changes therein as EDC may from time to time and in its reasonable
discretion, deem appropriate; provided that, in no event shall such
discretionary changes (i.e. changes which are not required by the
Requirements, field conditions or other unexpected conditions, or are not
necessitated by reason of The Times's default under this Agreement) cause
"Substantial Completion" (as such term is defined in the Lease) of the Project
to be delayed by virtue
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of the inability to obtain a Certificate of Occupancy with respect to the
Project. In such circumstances, EDC shall have the right (but shall not be
obligated) to assume any Construction Contract or any Design Contract made by
or on behalf of The Times in any way relating to the Work and to take over and
use all or any part or parts of the labor, materials, supplies and equipment
contracted for, by, or on behalf of The Times, whether or not previously
incorporated into the Construction Site, all in EDC's discretion. To
effectuate the provisions of this paragraph, The Times hereby collaterally
assigns to EDC all such Construction Contracts and all such Design Contracts,
whether presently existing or made in the future, as more particularly set
forth in Sec.4.1(d) hereof, and, if EDC exercises its rights under such
collateral assignment, EDC shall assume all of the obligations and liabilities
of The Times under such Construction Contracts and Design Contracts. In
connection with any demolition or construction undertaken by EDC pursuant to
the provisions of this Sec.7.3, EDC may (i) engage builders, contractors,
architects, engineers and others for the purpose of furnishing labor,
materials and equipment, (ii) reasonably pay, settle or compromise all bills
or claims which may become liens against the Construction Site, or which have
been or may be properly incurred, or for the discharge of liens, encumbrances
or defects in the title of the Construction Site, and (iii) take such other
reasonable action (including the employment of watchmen) to protect the
Construction Site. Any costs incurred by EDC in connection with the
performance of the above-described work which are in excess of the amount of
the Funding and which are necessitated as a result of the earlier termination
of this Agreement by reason of The Times's default or The Times's
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failure to perform its obligations with respect to the construction of the
Improvements in accordance with this Agreement and the Final Plans and
Specifications shall be paid by The Times. The provisions of this Sec.7.3 shall
survive the expiration or termination of the Term.
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ARTICLE EIGHT - NOTICES
-----------------------
Sec.8.1 Notices. All notices under this Agreement shall be in writing and
--------
shall be deemed to have been sufficiently given or served for all purposes as
of the date when sent by hand, or by a national overnight courier service, or
by certified or registered mail, return receipt requested, and addressed as
follows (or to such other addresses as may from time to time be designated by
EDC or The Times by notice delivered to the other in accordance with this
Sec.8.1):
(i) if to EDC:
New York City Economic Development Corporation
110 William Street
New York, N.Y. 10038
Attention: President
with a copy via ordinary mail to General Counsel, at the
same address
and to:
New York City Law Department
100 Church Street
New York, New York 10007
Attention: Chief, Economic Development Division;
(ii) if to The Times:
The New York Times Company
229 West 43rd Street
New York, New York 10036
Attention: Solomon B. Watson, IV, Esq.
General Counsel
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with a copy via ordinary mail to David Thurm, Executive
Director of Project Development, at the same address, and
with a copy in the same manner sent to The Times to:
Bachner, Tally, Polevoy & Misher
380 Madison Avenue
New York, New York 10017
Attention: Martin Polevoy, Esq.
Sec.8.2 Disbursement Submissions. All Requisitions and other submissions
-------------------------
for disbursements required to be made pursuant to Article Four of this
Agreement shall be addressed as directed in Sec.4.3 hereof.
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ARTICLE NINE - GENERAL CONDITIONS
---------------------------------
AND COVENANTS
-------------
The following terms, covenants and conditions shall be applicable
throughout the Term:
Sec.9.1 Conflict of Interests. No member, officer, director or employee
----------------------
of EDC or the City, or their designees, consultants or agents; no member of
the governing body of the City and no public official of the City who
exercises or exercised any functions or responsibilities with respect to the
subject matter of this Agreement during his/her tenure, if known to The Times,
shall have any interest, direct or indirect, in any contract or subcontract,
or the proceeds thereof, for work to be performed in connection with the Work
or in any activity or benefit arising out of or in connection with the
performance of the Work. Upon receiving actual notice or knowledge of any of
the circumstances specified in the preceding sentence, The Times shall deliver
notice to EDC of the circumstances and immediately shall use good faith
efforts to cause the Persons affected to terminate their interest in the
prohibited contract or property. The Times shall require the Resident
Engineer, Construction Manager, Owner's Representative or General Contractor
(as the case may be) and the Contractors, subcontractors, materials suppliers,
Consultants and subconsultants to make appropriate representations in writing
that they, their employees and principals do not have any conflict of interest
prohibited under this Sec.9.1, and to covenant to use good faith
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efforts to cause the prohibited persons to terminate their interest in
the relevant contract or property upon demand by The Times.
Sec.9.2 No Liability of Individuals. No officer, employee, director,
------------------------------
member, agent or other person authorized to act on behalf of EDC or the City
shall have any personal liability in connection with this Agreement or any
default by EDC or the City.
Sec.9.3 Anti-Boycott Provisions.
------------------------
(a) The Times agrees that it is not now participating, nor shall it
participate during the Term, in an international boycott in violation of the
provisions of the Export Administration Act of 1979, as amended, or the
regulations promulgated thereunder.
(b) Upon the final determination by the United States Department of
Commerce or any other agency of the United States as to conviction of The
Times for participation in an international boycott in violation of the
provisions of the Export Administration Act of 1979, as amended, or the
regulations promulgated thereunder, EDC may, at its option, declare a default
under this Agreement (which default is subject to cure by The Times in
accordance with the terms of this Agreement).
(c) The Times shall comply in all respects with the provisions of
Sec.6-114 of the Administrative Code of the City and the rules and
regulations issued by the Comptroller of the City thereunder.
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Sec.9.4 Governing Law. The provisions of this Agreement shall be governed
-------------
and interpreted in accordance with the law of the State of New York.
Sec.9.5 Liability of EDC. (a) Subject to the provisions of Sec.9.11(b)
------------------
hereof, EDC shall not be liable for consequential damages under this Agreement
to The Times or to any other Person in any matter arising out of the
construction of the Improvements.
(b) Notwithstanding any provision to the contrary contained in this
Agreement, if (i) EDC defaults in the disbursement of the Funding for which it
is obligated, pursuant to the terms of this Agreement, to disburse to The
Times and fails to cure such default within thirty (30) days after The Times
delivers notice (the "EDC Default Notice") to EDC of such default, (ii) the
Funding shall not be made available to EDC by the City, in whole or in part
for any reason, then, for each dollar of Funding not so disbursed by EDC or
made available to EDC by the City, The Times shall have the right to offset
against future Rental (other than Impositions) due under the Lease and against
College Point Improvement Fund Payments due under the Lease an amount equal to
the Funding not so disbursed by EDC until such time as EDC recommences the
disbursement of the Funding. The Times agrees that the right to on offset
against Rental (other than Impositions) and against College Point Improvement
Fund Payments as hereinabove described is The Times's sole remedy against EDC
arising out of the failure of EDC to receive the Funding from the City and The
Times shall not commence any action or proceeding against EDC as a result of
such failure, except as otherwise provided in this Agreement.
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(c) In the event that EDC (i) defaults in the performance of any
obligation on EDC's part to perform under this Agreement other than the
disbursement of the Funding or (ii) defaults in the disbursement of the
Funding and continues to be in default thereof after the receipt of the EDC
Default Notice and expiration of the thirty (30) day cure period provided
therein, then The Times shall have all of its rights at law and in equity
against EDC.
(d) Except as otherwise provided in this Agreement; (i) no course of
dealing on the part of The Times or any failure on the part of The Times to
exercise any right shall operate as a waiver of such right or otherwise
prejudice The Times's remedies, (ii) no right or remedy conferred upon or
reserved to The Times is intended to be exclusive of any other right or
remedy, (iii) every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy contained in this
Agreement or existing at any time at law or in equity, or otherwise, and may
be exercised from time to time and as often and in such order as The Times may
deem appropriate, and (iv) the exercise of any right or remedy shall not be
construed as an election or a waiver of any other right or remedy. No delay
or omission of The Times in exercising any right or remedy occurring upon
EDC's failure to disburse the Funding in accordance with this Agreement or to
otherwise perform its obligations in accordance with the terms of this
Agreement shall impair any such right or remedy or constitute a waiver of or
acquiescence in any such failure.
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Sec.9.6 Amendments. This Agreement may not be amended, waived or
-----------
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the amendment, waiver or termination is sought.
Sec.9.7 Successors and Assigns. The provisions of this Agreement shall be
-----------------------
binding upon and shall inure to the benefit of EDC and The Times and their
respective successors and permitted assigns.
Sec.9.8 Assignment of Funds. Except as specifically provided in Sec.10.1
---------------------
hereof, The Times acknowledges that the City capital budget dollars which form
the Funding are not and shall not be deemed to be an assignment of any funds
received by EDC from the City. The Times confirms that its rights to the
Funding arise exclusively under this Agreement.
Sec.9.9 Counterparts. This Agreement may be executed in one or more
-------------
counterparts which, when taken together, shall constitute one and the same
document.
Sec.9.10 Interpretation. The provisions of the Lease incorporated by
---------------
reference into this Agreement are intended to supplement the other provisions
of this Agreement. In the event of any conflict between the Lease provisions
and the other provisions of this Agreement, the provisions of the Lease shall
control.
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Sec.9.11 Indemnity. (a) In this Sec.9.11(a), EDC and the City, and their
----------
respective departments, offices, officers, members, directors, employees and
agents shall collectively be referred to as "the Public Parties". The Times
shall defend, indemnify and hold harmless the Public Parties, from and against
any and all claims, damages (including consequential damages awarded to third
parties against the Public Parties), judgments, liabilities and causes of
action whatsoever to which they may be subject arising out of the acts or
omissions of The Times, its Contractors, subcontractors, agents, employees or
material suppliers, Consultants and subconsultants, and any and all Persons,
in connection with the performance of the Work, or because of any negligence,
fault or default of The Times, its agents, employees, material suppliers,
subcontractors or subconsultants. The obligation of The Times to indemnify
and hold harmless the Public Parties shall include but not be limited to the
payment of any and all costs and reasonable legal fees as may be actually
incurred by the Public Parties. The termination of this Agreement shall not
release The Times from any liability to the Public Parties arising out of any
act or omission of The Times in connection with this Agreement.
(b) In this 9.11(b), The Times and its officers, members, directors,
employees and agents shall collectively be referred to as "The Times
Indemnitees". EDC shall indemnify and hold harmless The Times Indemnitees
from and against any and all claims, damages (including consequential damages
awarded to third parties against The Times Indemnitees), judgments,
liabilities and causes of action whatsoever to which they may be subject to
the extent caused as a result of the negligence or misconduct of EDC or its
agents or
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professional consultants arising out of or in connection with EDC's or its
agents' or professional consultants' inspections of the Construction Site or
uncovering of work in accordance with Sec.1.1(e) hereof. The obligation of EDC
to indemnify and hold harmless The Times Indemnitees pursuant to this
Sec.9.11(b) shall include, but not be limited to, the payment of any and all
costs and reasonable legal fees as may be actually incurred by The Times
Indemnitees in connection with any such claim, damage, judgment, liability or
causes of action. The termination of this Agreement shall not release EDC from
any liability to The Times Indemnitees described in this Sec.9.11(b).
Sec.9.12 No Agency. Neither The Times nor any of its employees,
-----------
Contractors or subcontractors, Consultants or subconsultants is, shall be or
shall represent that he, she or it is an agent, servant or employee of EDC or
the City by virtue of this Agreement or by virtue of any approval, permit,
license, grant, right or authorization given by the EDC or the City or any of
their officers, agents or employees. The Times shall be solely responsible
for the work, direction, compensation and personal conduct of its officers,
agents, employees, subcontractors and subconsultants.
Sec.9.13 Venue
-----
(a) Any and all claims asserted by or against EDC or by or against The
Times arising under this Agreement or related hereto shall be heard and
determined either in the courts of the United States ("Federal Courts")
located in the City or in the courts of the
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State of New York ("New York State Courts") located in the City of New York.
To effect this agreement and intent, EDC and The Times agree and, where
appropriate, shall require each Contractor and Consultant to agree, as
follows:
(i) If either Party initiates any action against the other
Party in Federal Court or in New York State Court, service of
process may be made on The Times either in person, or by
registered or certified mail (return receipt requested) addressed
to the office of the General Counsel of The Times at the address
set forth in Article Eight of this Agreement, or to such other
address as The Times may provide to EDC in writing, and service of
process may be made on EDC, either in person or by registered or
certified mail (return receipt requested) addressed to EDC at its
address as set forth in Article Eight of this Agreement, or to
such other address as EDC may provide to The Times in writing.
(ii) With respect to any action between EDC and The Times
in New York State Court, each Party 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 wholly outside New York City, and (C) to move for a
change of venue to New York State Court outside New York City.
(iii) With respect to any action between EDC and The Times
in Federal Court located in New York City, each Party expressly
waives and
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relinquishes any right it might otherwise have to move
to transfer the action to a Federal Court outside the City of New
York.
(iv) If either Party commences any action against the other
Party in a court located other than in the City and State of New
York, then, upon request of the Party against whom the action is
brought, the Party bringing the action 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, then to dismiss such action without prejudice, and may
thereafter reinstitute the action in a court of competent
jurisdiction in New York City.
Sec.9.14. Investigations; Cooperation.
----------------------------
(a) Definitions. As used in this Sec.9.14:
------------
(i) "Investigation" shall mean any investigation, audit or
inquiry conducted by the Department of Investigation with respect
to the obtaining and/or performance of the Transaction Documents
or any of them,
(ii) "Department of Investigation" shall mean the Department of
Investigation of the City or any City department or agency
succeeding to the functions thereof,
(iii) "Commissioner" shall mean the Commissioner or Acting
Commissioner of the Department of Investigation,
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(iv) "Deputy Mayor" shall mean the Deputy Mayor for Finance and
Economic Development of the City (or the officer of the City
succeeding to the functions of that office),
(v) "Entity" shall mean 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 EDC or the City,
(vi) "Member" shall mean any Person associated with another
Person or entity as a partner, director, officer, principal or
employee, and
(vi) "Transaction Documents" shall mean the Lease, this
Agreement, Funding Agreement #1, Funding Agreement #2 and Funding
Agreement #3.
(b) Cooperation with Investigations. Subject to the exclusions set
---------------------------------
forth in paragraph (c) of this Sec.9.14, The Times shall during the term of
this Agreement:
(i) cooperate fully and faithfully, and utilize good faith
efforts to cause its Members to cooperate fully and
faithfully, with any Investigation; and
(ii) report, and utilize its good faith efforts to cause its
Members to report, in writing to the Commissioner, any
solicitation of which The Times has actual knowledge 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 any other Person, for any purpose relating to
the procurement or obtaining and/or performance of any
Transaction Document by The Times.
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(c) Exclusions. The provisions of Sec.9.14(b) above shall not apply:
-----------
(i) to any information or document known, prepared or obtained
by The Times or its Members (and the sources of such
information or documents), that is protected from compelled
disclosure by any present or future "Shield Law" or any
other statute, constitutional provision, rule, regulation or
case law related to the rights of reporters and/or news
organizations;
(ii) to any Person who refuses to testify based on his or her
privilege against self-incrimination after having been given
assurances that his or her statement, and any information
from such statement, will not be used against such Person in
any subsequent criminal proceeding in any forum (provided,
however, that any Person given such assurances shall have
the right to have the legal sufficiency of such assurances
adjudicated by a court of competent jurisdiction as a
precondition of the applicability of Sec.9.14(b) to such
Person); and
(iii) to any construction contract or other agreement (or the
obtaining or performance thereof) with parties other than
the City or EDC, including without limitation, any contract
or agreement being funded through any Transaction Document.
(d) Hearing. If The Times or any Member of The Times refuses to
--------
testify in an Investigation and, in connection with such failure to testify,
the Commissioner determines
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that The Times has failed to cooperate in the Investigation in violation of
the provisions of Sec.9.14(b) hereof, then the Commissioner may request the
Deputy Mayor to convene a hearing (the "Hearing"), upon not less than five (5)
days written notice to The Times, to determine if any penalties should be
imposed for The Times's failure to so cooperate in accordance with this
Sec.9.14.
(e) Adjournments of Hearing
-----------------------
(i) The Times shall have the right to require that the Hearing
be adjourned for a period of not more than thirty (30) days.
(ii) The Deputy Mayor may grant other adjournments of the
Hearing, in the exercise of his or her reasonable
discretion; provided however, that in the case of an
adjournment occasioned by The Times's failure to appear, the
Deputy Mayor may, if he or she determines that there was no
reasonable cause for the requested adjournment or failure to
appear, impose an Interim Penalty.
(iii) The City shall not incur any penalty or damages for delay or
otherwise occasioned by an adjournment of the Hearing.
(f) Penalties.
----------
(i) The Deputy Mayor may impose a penalty during an adjournment
due to The Times's failure to appear or proceed with the
scheduled Hearing pursuant to Sec.9.14(d)(ii) hereof
("Interim Penalty") of not more than $1,000 per day for each
day of such adjournment, provided,
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however, that such daily penalties shall cease to accrue
from and after the date that The Times makes itself
available to appear at or proceed with the scheduled Hearing
or gives written notice to the Deputy Mayor that it does not
intend to appear at or proceed with the scheduled Hearing,
in which event the Deputy Mayor shall have the right to
continue the Hearing and reach a determination without The
Times's participation.
(ii) If, after the Hearing, the Deputy Mayor determines that The
Times failed to cooperate in the Investigation in violation
of this Sec.9.14, and The Times fails to commence to
cooperate fully in such Investigation within five ( 5)
Business Days following its receipt of written notice
of such determination, the Deputy Mayor may:
(A) impose a penalty ("Final Penalty") which may not, in
conjunction with any Interim Penalty or Final Penalty
imposed during the term of this Agreement under this
Agreement and/or during the term of the Lease with
respect to any other Transaction Document, exceed
$500,000 in the aggregate during the term of the
Lease; and/or
(B) disqualify The Times, for a period not to exceed five
(5) years, from submitting bids for, or transacting
business with, or entering into or obtaining any
contract, lease, permit or license
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with or from EDC or the City, other than as
contemplated in the Transaction Documents.
Notwithstanding anything to the contrary contained herein, in the event
that The Times is found after the Hearing to have failed to cooperate in the
Investigation, but nonetheless is not subjected to a Final Penalty because The
Times commences to cooperate fully in such Investigation within five (5)
Business Days following its receipt of written notice of such determination,
The Times shall be liable for the cost of conducting such Hearing in an amount
not to exceed $5,000.
(g) Criteria for Determination. The Deputy Mayor shall consider and
----------------------------
address in reaching his or her determination and in assessing an appropriate
Interim Penalty, Final Penalty, and/or disqualification, the factors in
clauses (i) and (ii) of this Sec.9.14(g). He or she may also consider, if
relevant and appropriate, the criteria established in clauses (iii) and (iv)
of this Sec.9.14(g), in addition to any other information which may be
relevant and appropriate:
(i) The Times's good faith endeavors or lack thereof to cooperate
fully and faithfully with the Investigation, 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 (the Deputy Mayor shall take into
account whether the discipline, discharge
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or disassociation of any Persons failing to testify would
violate any union or other contract),
(ii) the relationship of the Person who refused to testify to The
Times, including, but not limited to, whether the Person whose
testimony is sought has an ownership interest in The Times and/or
the degree of authority and responsibility the Person has within
The Times,
(iii) The nexus of the testimony sought to The Times and the
Transaction Documents, and/or
(iv) the effect a penalty may have on an unaffiliated and
unrelated party or Entity that has a significant interest in The
Times, provided that (x) such unrelated party or Entity has given
actual notice to the Commissioner or EDC upon the acquisition of
the interest, or (y) at the Hearing such unrelated party or Entity
gives notice and proves that such significant interest was
previously acquired; under either circumstance, such unrelated
party or Entity must present evidence at the Hearing demonstrating
the potential adverse impact a penalty will have on such party or
Entity.
(h) Payment of Penalties. Any Interim or Final Penalty hereunder
-----------------------
shall, upon imposition thereof, be applied to reduce the aggregate of Offset
Amounts (as such term is defined in the Lease) then available to The times
under Article 4 of the Lease and the balance, if any, shall be paid promptly
as additional Rental, or at the landlord under the
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Lease's option, such balance shall be applied to reduce EDC's obligations with
respect to any undisbursed Funding.
(i) Exclusive Remedy. Notwithstanding anything to the contrary con-
------------------
tained in this Agreement, the remedies set forth in Sec.9.14(f) hereof shall
be the sole and exclusive remedies available to EDC in the event that The
Times breaches any of its obligations under this Sec.9.14, and no other
remedies, including, without limitation, the remedies set forth elsewhere in
this Agreement for defaults by The Times in the performance of its obligations
under this Agreement, shall be applicable to a breach by The Times of any of
its obligations under this Sec.9.14.
(j) Right to Dispute Determinations of Deputy Mayor. Nothing
-------------------------------------------------------
contained herein shall be construed to limit in any manner whatsoever The
Times's right or ability to challenge or seek to enjoin, overturn, set aside
or modify any action taken, determination made or penalty imposed by the
Deputy Mayor pursuant to the provisions of this Sec.9.14.
(k) Concurrent Lease Obligation. The obligations of The Times under
----------------------------
this Sec.9.14 constitute a portion of the obligations of The Times under
Article 40A of the Lease, and nothing contained herein shall be construed as
expanding, enlarging or increasing in any way, or as being separate from or in
addition to, the obligations and liabilities of The Times pursuant to Article
40A of the Lease.
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Sec.9.15. Intentionally Omitted.
Sec.9.16 Maximum Interest Rate
---------------------
In the event that any interest payable under this Agreement shall be
deemed to exceed the maximum rate permitted by law, then the amount of
interest to be paid shall be the maximum rate so permitted.
Sec.9.17 Captions
--------
The captions in this Agreement are inserted for convenience of reference
only and in no way define, describe or limit the scope or intent of this
Agreement or any of the provisions hereof.
Sec.9.18 Gender, Etc.
------------
The gender used in this Agreement shall be deemed to refer to the
masculine, feminine, or neuter gender, as the context or the identity of the
persons being referred to may require. The singular shall include the plural
and vice versa as the context may dictate.
Sec.9.19 Assignment by EDC. EDC shall not assign this Agreement without
-------------------
the prior written consent of The Times, except that EDC shall have the right,
upon ten (10) Business Days prior written notice, to assign this Agreement
and/or EDC's rights under this Agreement, without any further consent on the
part of The Times, to the City.
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Sec.9.20 Obligations of Newspaper Division. EDC acknowledges and agrees
-----------------------------------
that all non-monetary obligations set forth in this Agreement as being
obligations of The Times shall apply only to, and be performed by, The New
York Times Newspaper Division of The New York Times Company (the "Newspaper
Division") and its employees and agents, and EDC shall look solely to the
Newspaper Division for the performance of such non-monetary obligations;
provided, however, that any default by the Newspaper Division in the
performance of such non-monetary obligations shall be treated with the same
force and effect pursuant to the applicable provisions of this Agreement as if
such default had been committed by The Times.
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ARTICLE TEN - AGREEMENT OF THE CITY
-----------------------------------
Sec.10.1 City's Agreement to Fund EDC. The City, by executing this
--------------------------------
Agreement as it effects this Article Ten only, (i) acknowledges that it is
becoming a signatory to this Agreement as a material inducement to The Times
to enter into this Agreement, (ii) warrants and represents that the
Consolidated Contract is in full force and effect and legally binding upon the
City; and (iii) covenants and agrees to provide EDC with City capital budget
funds in such amounts and at such times as will permit EDC to comply with its
obligations to disburse the Funding pursuant to the provisions of this
Agreement, without regard to whether the Consolidated Contract is then in full
force and effect or whether EDC is in compliance with the terms thereof.
Sec.10.2 Valid Agreement of the City. A legal opinion of the Corporation
----------------------------
Counsel (addressed to The Times) providing that this Agreement is legal, valid
and binding upon the City with respect to the provisions of this Article Ten
in the form attached hereto as Appendix K, is being delivered to The Times
concurrently herewith.
Sec.10.3 The Times's Rights Against the City. In the event that the City
-------------------------------------
has defaulted in the performance of any obligation of the City pursuant to
this Article Ten and continues to be in default thereof after notice from The
Times and a thirty (30) day period to cure, The Times shall have all of its
rights at law and in equity against the City.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
day and year first above written.
NEW YORK CITY ECONOMIC
DEVELOPMENT CORPORATION
By: /s/ Carl Weisbrod
----------------------
Title: President
THE NEW YORK TIMES COMPANY
By: /s/ Katharine P. Darrow
-------------------------
Title: Senior Vice President
THE CITY, BY SIGNING IN THE
PLACE PROVIDED BELOW,
AGREES TO BE BOUND BY THE
PROVISIONS OF ARTICLE TEN HEREOF:
THE CITY OF NEW YORK
By: /s/ Barry F. Sullivan
APPROVED AS TO FORM:
By: /s/
--------------------------
Acting Corporation Counsel
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STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
On the 17th day of December, 1993,before me personally came
Carl Weisbrod, to me known, who, being by me duly sworn, did depose
and say that s/he resides at 11010 St. NY, NY; that s/he is
the President of New York City Economic Development Corporation, the
corporation described in and which executed the foregoing instrument; and that
s/he signed her/his name thereto by authority of the board of directors of
such corporation.
Colleen B. McHale
---------------------------
Notary Public
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
On the 17th day of December, 1993,before me personally came
Katharine Darrow, to me known, who, being by me duly sworn, did depose
and say that s/he resides at 16 Garden Place, Brooklyn, NY; that s/he is
the S.V.P. of The New York Times Company, the corporation described
in and which executed the foregoing instrument; and that s/he signed her/his
name thereto by authority of the board of directors of such corporation on
behalf of such corporation.
Beverly Sturr
--------------------------
Notary Public
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STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
On the 17th day of December, 1993, before me personally came
Barry F. Sullivan, to me known, who, being by me duly sworn, did depose
and say that s/he resides at c/o City Hall, NY, NY; that s/he is
the Deputy Mayor of The City of New York, the same person who executed the
foregoing instrument; and that s/he acknowledged that s/he signed her/his name
thereto on behalf of The City of New York and pursuant to the authority vested
in her/him.
Colleen B. McHale
-----------------------------
Notary Public
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