FUNDING AGREEMENT #2
between
NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION
and
THE NEW YORK TIMES COMPANY
Dated as of December 15, 1993
Relative to the construction of
a City sanitary sewer system along the
Whitestone Expressway Service Road
in the College Point Industrial Park
in the Borough of Queens
TABLE OF CONTENTS
Page
PREAMBLE 1
DEFINITIONS 3
ARTICLE ONE THE WORK; PERFORMANCE, PROCUREMENT
- ----------- AND CONTRACT REQUIREMENTS
Sec.1.1 General Provisions and Provisions Regarding
Design and Construction 16
Sec.1.2 Procurement of Bids, Services and Goods 24
Sec.1.3 Liaison to EDC 35
ARTICLE TWO THE FUNDING
- -----------
Sec.2.1 Agreement to Fund 36
Sec.2.2 Disbursements 36
Sec.2.3 Funding of Costs of Changes 39
ARTICLE THREE THE TERM
- -------------
Sec.3.1 Term 44
ARTICLE FOUR CONDITIONS FOR DISBURSEMENT
- ------------
Sec.4.1 Initial Submissions by The Times 45
Sec.4.2 Documentation for Disbursements on Account
of Eligible Costs 46
Sec.4.3 Direction of Submissions 49
ARTICLE FIVE REPRESENTATIONS, WARRANTIES AND
- ------------ GUARANTIES OF THE TIMES
Sec.5.1 Organization; Standing 50
Sec.5.2 Intentionally Omitted 50
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Page
Sec.5.3 Conflict, etc. under Other Documents 50
Sec.5.4 No Litigation 51
Sec.5.5 Intentionally Omitted 51
Sec.5.6 Intentionally Omitted 51
Sec.5.7 Quality of Work; Guaranties and Warranties 51
ARTICLE FIVE-A REPRESENTATIONS AND WARRANTIES OF EDC
- --------------
Sec.5A.1 Organization; Standing 57
Sec.5A.2 Due Authorization; Enforceable Obligations 57
ARTICLE SIX COVENANTS
- -----------
Sec.6.1 Requisitions Update The Time's Representations 58
Sec.6.2 Compliance with Other Agreements and Law;
Legal Status 58
Sec.6.3 Maintenance of and Compliance with Insurance
Requirements 58
Sec.6.4 Maintenance of Office 59
Sec.6.5 Compliance with Applicable Law 59
Sec.6.6 Assignment 60
Sec.6.7 Maintenance of Records 61
Sec.6.8 Intentionally Omitted 61
Sec.6.9 Due Application of Funding Proceeds 61
Sec.6.10 Defects; Non-Conforming Work 62
Sec.6.11 Participation by Women and Minority Owned
Businesses 62
Sec.6.12 No Liens 65
Sec.6.13 Intentionally Omitted 65
Sec.6.14 Intentionally Omitted 65
Sec.6.15 Intentionally Omitted 65
Sec.6.16 MacBride Principles 65
Sec.6.17 No Waiver of Compliance 66
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Page
ARTICLE SEVEN DEFAULT AND TERMINATION
- -------------
Sec.7.1 Events of Default 67
Sec.7.2 Default Remedies; Exculpation 68
Sec.7.3 Termination 71
Sec.7.4 Right to Reinstate Agreement 73
ARTICLE EIGHT NOTICES
- -------------
Sec.8.1 Notice 74
Sec.8.2 Disbursement Submissions 75
ARTICLE NINE GENERAL CONDITIONS AND COVENANTS
- ------------
Sec.9.1 Conflict of Interests 76
Sec.9.2 No Liability of Individuals 77
Sec.9.3 Anti-Boycott Provisions 77
Sec.9.4 Governing Law 78
Sec.9.5 Liability of EDC 78
Sec.9.6 Amendments 80
Sec.9.7 Successors and Assigns 80
Sec.9.8 Assignment of Funds 80
Sec.9.9 Counterparts 81
Sec.9.10 Interpretation 81
Sec.9.11 Indemnity 81
Sec.9.12 No Agency 83
Sec.9.13 Venue 83
Sec.9.14 Investigations; Cooperation 85
Sec.9.15 Intentionally Omitted 92
Sec.9.16 Maximum Interest Rate 92
Sec.9.17 Captions 92
Sec.9.18 Gender, Etc. 92
Sec.9.19 Assignment by EDC 93
Sec.9.20 Obligations of Newspaper Division 93
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Page
ARTICLE TEN AGREEMENT OF THE CITY
- -----------
Sec.10.1 City's Agreement to Fund EDC 94
Sec.10.2 Valid Agreement of the City 94
Sec.10.3 The Times's Rights Against the City 94
Appendix A - Premises
Appendix B - Sanitary Sewer System
Appendix C - 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 - Intentionally Omitted
Exhibit B - Form List of Contractors
Exhibit C - Investigation Forms
Exhibit D - Change Order Form
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 #2 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 100 for future identification, as such
property is more particularly described in Appendix A attached hereto and made
a part hereof (the "Premises); and
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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: In connection with the Lease, The Times has the option to
construct on behalf of the City a City sanitary sewer system designed by EDC,
to run along the westerly side of the Whitestone Expressway Service Road
adjacent to the Premises (the "Construction Site"), as such sanitary sewer
system is more particularly depicted in Appendix B attached hereto (the
"Sanitary Sewer System" or the "Improvements"); and
D: The construction of the Improvements is a necessary prerequisite
element to the Project without which The Times has determined it could not
proceed with the construction of the Project; and
E: If The Times elects to construct the Improvements in accordance
with its option, EDC and the City will make available to The Times City
capital budget funds sufficient to fully reimburse The Times for its
construction of the Improvements and the performance of the Work (as
hereinafter defined); and
F: 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 the necessary City capital
budget funds, which is currently
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estimated by EDC to be approximately $3.6 million, for use in connection with
the construction of the Improvements and pursuant to which EDC is authorized
to contract with The Times to perform the Work; and
G: The Times, independently, and not as agent of the City or EDC, has
agreed that if it exercises its option to construct the Improvements it will
perform, or cause the performance of, the Work in consideration of the
payments to it by EDC of funds in an amount necessary to fully reimburse The
Times for the Eligible Costs (as hereinafter defined) incurred in connection
with the construction of the Improvements (the "Funding") pursuant to this
Agreement;
H: In furtherance of its obligations under the Consolidated Contract
and its corporate purpose of fostering economic development in the City, EDC
has agreed to disburse the Funding to The Times 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:
"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
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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.
"Approvals" Contractor's Approvals (as hereinafter defined) and
Owner's Approvals (as hereinafter defined),
collectively.
"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.
"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 F 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 C 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.
"Contractor" Any contractor under a Construction Contract.
"Contractor's
Approvals" As defined in Sec.1.1(c)(3).
"DBS" As defined in Sec.6.11(b).
"Department of
Investigation" As defined in Sec.9.14(a).
"Deputy Mayor" As defined in Sec.9.14(a).
"DLS" The Division of Labor Services of the City's
Department of Business Services, 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).
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"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
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 or necessary during the period of and for
performance of the Work, (y) all costs of obtaining
and maintaining the guaranties required by this
Agreement and/or the Final Plans and Specifications
(as hereinafter defined), 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, and (ii) the costs paid or
payable by The Times to the Resident Engineer,
including those costs incurred by the Resident
Engineer for the performance of construction
management and supervision services and/or engineering
services, including without limitation, the
performance of tests necessary to determine the
efficiency of the Sanitary Sewer System, (x) in an
amount not to exceed ten percent (10%) of the Hard
Costs (as hereinafter defined) with respect to all
"general condition" items and other reimbursable
expenses, and (y) in an amount not to exceed three
percent (3%) of the Hard Costs with respect to the
Resident Engineer's fee. In no event shall Eligible
Costs include the costs or fees paid or payable by The
Times to the Construction Manager.
"Engineer's Estimate" An engineer's estimate or estimates, prepared by EDC
or its professional consultants with respect to the
construction of the Improvements, of all Eligible
Costs expected to be incurred in connection with such
construction and a projection of the amounts that EDC
expects The Times to requisition over the term of this
Agreement in connection with the Improvements. The
Engineer's Estimate may be amended from time to time
to reflect inflation change order work or other
changes to the Plans and Specifications, until such
Plans and Specifications become the Final Plans and
Specifications. The Engineer's Estimate shall not be
construed to limit in any way the amounts to be paid
to The Times in full reimbursement of the cost to
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perform the Work pursuant to the provisions of this
Agreement.
"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.
"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 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
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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 notice from The Times that the Work
is Substantially Completed (as hereinafter
defined) and (ii) shall have certified the 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 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 Work (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 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
(including without limitation, videotape
documentation required by the City's
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Department of Environmental Protection, Division
of Sewers in connection with the construction of
a sanitary sewer system) or as may be necessary
to evidence that the Work 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 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 Penalty" As defined in Sec.9.14(f)(ii).
"Final Plans and
Specifications" The completed final drawings and plans and
specifications for the construction of the Sanitary
Sewer System, as developed by EDC and delivered by EDC
to The Times in accordance with Sec.1.1(c)(2) hereof,
and as such drawings and plans and specifications may
be modified or amended from time to time in accordance
with Sec.1.1(c) or Sec.2.3 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 or at or on the
Construction Site including, but not limited to,
deficiencies due to non-compliance with
Requirements.
"Funding" As defined in Recital G of the Preamble.
"Funding Agreement #1" 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 certain site preparation and foundation
work required in connection with the construction of
the Project, as such agreement may be
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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.
"Funding Agreement #4" 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 certain reconstruction of the Whitestone
Expressway Service Road from 20th Avenue to Linden
Place, a City street running adjacent to the Premises,
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.
"Guaranty
Periods" (i) A period of twelve (12) months after the Final
Acceptance Date, and (ii) such other longer guaranty
period as may be generally available within the
relevant industry with respect to materials or
equipment used in connection with the construction of,
or incorporated in, the Sanitary Sewer System, and
specified in the Final Plans and Specifications
(provided such guaranty period is commercially
available).
"Hard Costs" The aggregate of the costs set forth in clauses
(i)(A) and (i)(B) of the definition of Eligible
Costs.
"Impositions" As defined in Section 3.09(b)(i) of the Lease.
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"Improvements" As defined in Recital C of the Preamble.
"Initial Termination" As defined in Sec.7.4.
"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(c).
"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
either (i) individually or in the aggregate with all
other changes increases the cost of the Construction
Work by $100,000 or more, (ii) materially changes the
quality or nature of the Construction Work, type of
materials, workmanship or construction means, methods
or techniques, or materially affects the layout or
design of the Improvements, or (iii) is of such a
nature that, in order to perform the work associated
with such change, The Times will be required to obtain
additional permits or approval.
"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.
"90 Day
Election Period" As defined in Sec.1.1(b).
"Owner's Approvals" As defined in Sec.1.1(c)(2).
"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 Work
performed by the General Contractor and the
other Contractors, subcontractors and material
suppliers.
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"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 thereof; and any
fiduciary acting in such capacity on behalf of any of
the foregoing.
"Plans and
Specifications" The drawings and plans and specifications for
the construction of the Sanitary Sewer System,
as developed by EDC. The Plans and
Specifications shall be complete and final
except with respect to those changes which may
be necessary or required as a result of changes
to the design or changes in the Requirements
which occur between the time the Plans and
Specifications are delivered to The Times in
accordance with Sec.1.1(c)(1) hereof and the time
that The Times is prepared to commence
construction of the Sanitary Sewer System.
"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
------------------
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.
"Project Commencement
Date" As defined in Sec.1.1(b).
"Prohibited Person" As defined in Sec.1.2(b)(5).
"Proposed Bidders List" As defined in Sec.1.2(b)(1).
"Public Parties" As defined in Sec.9.11(a).
"Rental" As defined in Article 1 of the Lease.
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"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" As defined in Sec.4.2(a)(ii).
"Resident Engineer" The professional consultant engaged by EDC to prepare
the Plans and Specifications and/or the Final Plans
and Specifications (identified by EDC in its notice to
The Times described in Sec.1.2(b)(4) hereof), or any
other professional engineer, engineering firm,
architectural firm with engineering expertise,
combined 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, including, without,
limitation, the preparation of the Engineer's
Estimate.
"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.
"Retainage" As defined in Sec.2.2(a)(1).
"Reviewing
Parties" EDC, the City's Department of Environmental
Protection, 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.
"Sanitary Sewer System" As defined in Recital C of the Preamble.
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"Sewer Delay Offset
Amount" As defined in Section 27.04 of the Lease.
"Sewer System Election
Notice" As defined in Sec.1.1(b).
"Substantial
Completion" or
"Substantially
Complete(d)" Means that the 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 Work and prepare a Final Punch List.
"Substantial
Completion Date" The date on which the Work shall have been
Substantially Completed.
"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, 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 Indemnitees" As defined in Sec.1.1(c)(5).
"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
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electricity, oil, gas or water to the Construction
Site provided that such failure or defect is not due
to the action or inaction 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) the failure of
EDC to obtain the Owner's Approvals, (xiv) the failure
of EDC to make changes to the Final Plans and
Specifications in accordance with Sec.1.1(c)(4) hereof
required by reason of the Requirements, changes to the
Requirements, field conditions or other unexpected
conditions arising during the course of the
Construction Work that may affect the design of the
Improvements, (xv) defects in the Final Plans and
Specifications that cause the Plans and Specifications
to be not in compliance with the Requirements or
incorrect or inappropriate, (xvi) EDC's unreasonable
delay in granting any approvals required under this
Agreement, or (xvii) 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.
"Work" Work undertaken by or on behalf of The Times for the
purpose of 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 27 of
---------------------------------------
the Lease, The Times shall, in its sole discretion, have the right (but not
the obligation), subject to such conditions set forth in paragraph (b) below,
to elect to construct, on behalf of the City, the Sanitary Sewer System. If
The Times elects to construct the Sanitary Sewer System, The Times shall
notify EDC of such election in accordance with the notice provisions set forth
in Sec.1.1(b) hereof, and thereafter The Times shall perform the Work related
to such construction, 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 construct the Sanitary Sewer System 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 "Sewer System Election Notice") to EDC no earlier
than the date (the "Project Commencement Date") on which The Times "Commences
Construction of the Project" (as such term is defined in Article 13 of the
Lease) on the Premises, but in no event later than ninety (90) days after the
Project Commencement Date (the "90 Day Election Period"); provided, however,
that The Times shall have the right to revoke such election if The Times
notifies EDC of its
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intention to construct the Sanitary Sewer System at any time within the 90 Day
Election Period, but has not commenced the Work prior to the date which is one
hundred and eighty (180) days after the Project 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 Sewer
System Election Notice shall specify (i) the approximate date on which The
Times intends to commence construction of the Sanitary Sewer System (which
date shall be no later than nine (9) months after the Project Commencement
Date), (ii) the Resident Engineer, Construction Manager, or Owner's
Representative that The Times intends to select with respect to the
construction of the Sanitary Sewer System, and (iii) 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 construction of the Sanitary Sewer System.
(c) Plans and Specifications. (1) EDC shall deliver to The Times
-------------------------
copies of the Plans and Specifications for the construction of the Sanitary
Sewer System as soon as such plans have been completed, but in no event later
than the date which is six (6) months after the date of this Agreement. The
Plans and Specifications shall be submitted together with an Engineer's
Estimate, as of the date of such submission.
-17-
(2) EDC shall deliver to The Times copies of the Final Plans and
Specifications for the construction of the Sanitary Sewer System within six
(6) months after EDC's receipt of the Sewer System Election Notice, but in no
event earlier than three (3) months prior to the date specified in such notice
on which The Times intends to commence construction. The Final Plans and
Specifications shall be accompanied by (i) an updated Engineer's Estimate, if
necessary, and (ii) all appropriate permits, consents, certificates, licenses,
authorizations and approvals necessary for the construction of the
Improvements generally considered in the construction industry to be the
responsibility of the owner of a construction site to obtain ("Owner's
Approvals"). If necessary, The Times shall assist EDC, at no cost to The
Times, in obtaining such Owner's Approvals.
(3) 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 generally considered in the construction industry to be the
responsibility of the "contractor" of a construction project to obtain (the
"Contractor's Approvals"). If necessary, EDC shall assist The Times or its
Contractors in obtaining such Contractor's Approvals. The cost of 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.
(4) 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.2.3 hereof; provided, however, that any changes required to be
made by reason of the Requirements,
-18-
changes to the Requirements, field conditions or other unexpected conditions
arising during the course of the Construction Work that may affect the design
or construction of the Improvements shall be made solely by EDC and/or its
professional consultants, at EDC's cost and expense. The Times shall perform
the Construction Work in accordance with all such changes. In addition, EDC
may request that The Times construct the Improvements in conformity with any
other changes to the Final Plans and Specifications reasonably proposed by EDC
or the City which shall not cause "Substantial Completion" (as such term is
defined in the Lease) of the Project to be delayed by virtue of the inability
to hook up the Project to the Sanitary Sewer System. In either such case,
any increased cost of the Work associated with any such changes to the Final
Plans and Specifications in accordance with this Sec.1.1(c)(4) shall be paid as
provided in Sec.2.3(d) hereof.
(5) EDC shall indemnify and hold harmless The Times and its
officers, members, directors, employees and agents (collectively "The Times
Indemnitees") from and against any and all claims, damages, judgments,
liabilities and causes of action whatsoever to which they may be subject
arising out of (i) the negligence or misconduct of EDC, its employees, agents
or consultants in connection with the preparation of the Final Plans and
Specifications and any modification or changes thereto and the obtaining of
the Owner's Approvals, or (ii) the fact that the Final Plans and
Specifications are not in compliance with the Requirements or are incorrect or
inappropriate. The obligation of EDC to indemnify and hold harmless The Times
Indemnitees shall include but not be limited to the payment of any and all
costs and reasonable fees (including reasonable legal fees) as may be actually
-19-
incurred by The Times Indemnitees as a direct result of the negligence or
misconduct of EDC, its employees, agents or consultants.
(6) If, as a result of (i) the negligence or misconduct of EDC,
its employees, agents or consultants in connection with the preparation of the
Final Plans and Specifications and any modifications or changes thereto, or
(ii) the fact that the Final Plans and Specifications are not in compliance
with the Requirements or are incorrect or inappropriate, The Times is delayed
in completing construction of the Sanitary Sewer System in accordance with
this Agreement and such delay in completing the Sanitary Sewer System causes
"Substantial Completion" (as such term is defined in the Lease) of the Project
to be delayed by virtue of the inability to hook up the Project to the
Sanitary Sewer System, The Times shall have the right to offset against future
Rental (other than Impositions and College Point Improvement Fund Payments) an
amount equal to the Sewer Delay Offset Amount, as more particularly set forth
in Section 4.01 and Article 27 of the Lease.
(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, 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
-20-
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 provided The Times with the Final Plans
and Specifications and the Owner's Approvals, or any other action or failure
to act by the Reviewing Parties, shall in no way constitute a representation
that all applicable Requirements have been complied with or, subject to the
provisions of Sec.1.1(c)(5) hereof, relieve The Times of its obligations to
abide by the terms of this Agreement.
(e) Performance of the Work. (i) Subject to Unavoidable Delays, The
-------------------------
Times shall commence construction of the Improvements not later than nine (9)
months after the Project Commencement Date. 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
-21-
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 and, if such uncovering caused
"Substantial Completion" (as such term is defined in the Lease) of the Project
to be delayed by virtue of the inability to hook up the Project to the
Sanitary Sewer System, The Times shall have the right to offset against future
Rental (other than Impositions and College Point Improvement Fund Payments) an
amount equal to the Sewer Delay Offset Amount, as more particularly set forth
in Section 4.01 and Article 27 of the Lease; if the work that has been
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
-22-
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) Subject to Unavoidable Delays, The Times shall cause Substantial
Completion of the Sanitary Sewer System to occur not later than twenty-four
(24) months after The Times commences construction of such Sanitary Sewer
System.
(2) The Times shall notify EDC of the date the Work shall have been
Substantially Completed. EDC shall have thirty (30) 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 Work not Substantially
Completed and prepare the Substantial Completion Punch List, if necessary, and
deliver the same to The Times within such thirty (30) Business Day period.
The Times shall
-23-
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.
(3) 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 Work.
(4) 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 construct the Sanitary Sewer System as
provided in Sec.1.1(a) hereof, The Times shall enter into a Construction
Contract or Construction Contracts independently and not as agent of the City
or EDC for the performance of the Construction Work in accordance with the Final
Plans and Specifications so as to facilitate the construction of the
Improvements.
(2) 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
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(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.
(b)(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 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
-25-
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) 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. The Times shall not accept a bid which exceeds the Engineer's Estimate
by more than ten percent (10%) without
-26-
EDC's prior written approval (it being understood, however, that if EDC
approves any such bid, all Eligible Costs included in such bidder's contract
price shall be paid for with the Funding notwithstanding the fact that such
Eligible Costs may exceed the Engineer's Estimate by ten percent (10%) or
more). EDC's approval of a bid which is not the lowest bid or a bid which
exceeds the Engineer's Estimate by more than ten percent (10%) shall be deemed
given if not denied in writing within ten (10) Business Days of The Times's
written request therefor. If EDC refuses to approve a bid which exceeds the
Engineer's Estimate by more than ten percent (10%), then EDC shall have a
period of six (6) months following such refusal to either revise the Plans and
Specifications such that the anticipated cost of constructing the Improvements
is reduced to an amount not to exceed the Engineer's Estimate or seek and
obtain the appropriation of additional funds from the City to pay for the
additional expense, or take such other action as EDC may deem necessary in
order to enable The Times to rebid the Construction Work and cause the
construction of the Improvements. If, as a result of EDC's refusal to approve
a bid which exceeds the Engineer's Estimate by more than ten percent (10%),
The Times is delayed in completing construction of the Sanitary Sewer System
and such delay causes "Substantial Completion" (as such term is defined in the
Lease) of the Project to be delayed by virtue of the inability to hook up the
Project to the Sanitary Sewer System, The Times shall have the right to offset
against future Rental (other than Impositions and College Point Improvement
Fund Payments) an amount equal to the Sewer Delay Offset Amount, as more
particularly set forth in Section 4.01 and Article 27 of the Lease.
-27-
(2) EDC reserves the right, at any time prior to The Times's
acceptance of a bid in accordance with Sec.1.2(b)(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(b)(1) or this Sec.1.2(b)(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, (B)
withdraws its prior approval of any bidder chosen in accordance with
Sec.1.2(b)(1) above, or (C) refuses to approve a bid which exceeds the
Engineer's Estimate by more than ten percent (10%) and is unable, after the six
(6) month period described in Sec.1.2(b)(1) above, to either reduce the cost of
the Construction Work to an amount not to exceed the Engineer's Estimate or
obtain an additional appropriation of funds sufficient to pay for the additional
expense, or otherwise take such other action as would, in the reasonable
opinion of The Times, enable The Times to rebid the Construction Work and
cause the construction of the Improvements, then The Times shall have the
right to revoke its election to construct the Improvements, provided that,
with respect to (A) and (B) above, The Times reimburses EDC for any Funding
already disbursed by EDC to The Times to pay for Resident Engineer Costs.
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
-28-
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.
(4) Notwithstanding anything to the contrary contained in Sec.1.2(b)(1)
or Sec.1.2(b)(2) above, at any time after the date hereof The Times shall have
the right, without following the bidding procedure outlined in Sec.1.2(b)(1)
above, to enter into a Construction Contract with respect to the construction
of the Sanitary Sewer System with a Resident Engineer if such Resident
Engineer is the professional consultant engaged by EDC to prepare the Plans
and Specifications and/or the Final Plans and Specifications. Upon execution
of a consultant contract therefor, EDC shall notify The Times in writing of
the professional consultant so engaged by it to prepare the Plans and
Specifications and/or the Final Plans and Specifications.
(5) 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.
-29-
(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.
(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
-30-
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 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.
(c) 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
-31-
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.
(d) 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;
(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
-32-
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 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
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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.
(e) Any proposed changes or amendments to a Construction Contract, the
effect of which would be to increase the amount of the Funding, shall be made
in accordance with the provisions of Sec.2.3 hereof. Any proposed changes or
amendments to a Construction Contract which affect the provisions to be
included in such Construction Contract pursuant to Sec.1.2(d) 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.
(f) In addition to the provisions required to be included in the
Construction Contracts pursuant to Sec.1.2(d) hereof, The Times may include in
the Construction Contracts (and the bid packages therefor) such other
provisions as The Times deems necessary to incorporate the requirements of
this Agreement therein, including without limitation, that the Contractor
shall not receive payment under its Construction Contract 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 cause the Person or Persons on The Times's
staff, described in the Sewer System Election Notice as the Person or Persons
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.
-35-
ARTICLE TWO - THE FUNDING
-------------------------
Sec.2.1 Agreement to Fund. (a) Subject to the terms, conditions,
--------------------
representations and warranties contained in this Agreement, EDC agrees to
disburse the Funding and The Times agrees to accept the Funding and all other
agreements and obligations of EDC and the City set forth herein as full
consideration for performance by The Times of 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 amount of the Funding shall be consideration for any and all
costs, fees and/or expenses of The Times in any way connected with the
performance of the Work and, subject to the receipt of such Funding, The Times
will be solely responsible for completion of the Improvements in accordance
with the Final Plans and Specifications. The Times acknowledges that the
Funding is not a fee or other compensation earned by or paid to The Times.
Sec.2.2 Disbursements. (a) The Times agrees to accept the Funding and to
-------------
utilize the proceeds thereof solely in connection with the Work. Except as
otherwise specifically set forth herein, in no event shall The Times be
required to expend any of its own funds to pay for the performance of the Work
and the construction of the Improvements. After the completion of the portion
of the Work to which the portion of the payment being disbursed
-36-
applies, 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 below, in installments equal to (A) 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, (B) less ten percent (10%) retainage, until
fifty percent (50%) completion of the Construction Work, and upon fifty
percent (50%) completion of the Construction Work such lesser retainage as The
Times may, in its sole discretion, require in its Construction Contracts to be
retained (the "Retainage"), subject to disbursement as set forth in (3) below;
(2) With respect to Resident Engineer Costs, in monthly installments
equal to the Resident Engineer Costs for the previous month, calculated based
on the Resident Engineer's fee schedule attached to the Construction Contract
with respect to the Resident Engineer;
(3) With respect to the Retainage, within twenty (20) days after the
Final Acceptance Date; provided, however, such portion of the Retainage equal
to one percent (1%) of the total cost of performing the Work shall not be
disbursed upon the Final Acceptance Date but shall be disbursed within twenty
(20) days after Final Completion.
(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.
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(d) No portion of the Funding shall be advanced for materials not
incorporated into the Construction Site.
(e) Disbursements of the Funding shall be no more frequent than every
thirty (30) days and shall be made by EDC within ten (10) Business Days after
the date EDC receives from The Times a complete disbursement request,
reasonably satisfactory to EDC, together with the Requisition and all such
other documentation as may be required or reasonably requested by EDC.
(f) If EDC fails to disburse the Funding in accordance with the terms
and conditions of this Agreement, and as a result of such failure any one or
more of the Contractors cease performing the Construction Work, then provided
that The Times gives EDC thirty (30) days prior written notice and an
opportunity to cure such failure, The Times shall have the right, but not the
obligation, to pay such Contractor or Contractors from its own funds for the
performance of the Construction Work and, in accordance with Sec.9.5(b) hereof,
receive an offset against future Rental (other than Impositions) due under the
Lease and against College Point Improvement Payments due under the Lease, in
an aggregate amount equal to the funds so disbursed by The Times to such
Contractor or Contractors, from the date that The Times paid such funds to
such Contractor or Contractors until the earlier to occur of the date on which
EDC recommences the disbursement of the portion of the Funding allocable to
the Construction Work performed by such Contractor or Contractors or the date
of such offset.
(g) If any one or more of the Contractors cease performing the
Construction Work as a result of EDC's failure to disburse the Funding to The
Times in accordance with
-38-
the terms and conditions hereof, then, notwithstanding anything to the
contrary contained herein, EDC shall indemnify and hold harmless The Times
Indemnitees from and against any and all claims, judgments, liabilities and
causes of action whatsoever instituted and/or obtained by such Contractor or
Contractors as a result of such failure to fund. The obligation of EDC to
indemnify and hold harmless The Times Indemnitees shall include but not be
limited to the payment of any and all costs and reasonable fees (including
reasonable legal fees) as may be actually incurred by The Times Indemnitees as
a direct result of EDC's failure to fund.
Sec.2.3 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.2.3. In no event will the amount of the Funding
be increased on account of such changes made other than pursuant to
Sec.2.3(b)(i), Sec.2.3(b)(ii) or Sec.2.3(d) hereof. The Eligible Costs incurred
in connection with all changes made in accordance with Sec.2.3(b)(ii) or
Sec.2.3(d) hereof shall be paid for with the Funding.
(b) Changes Initiated by The Times
------------------------------
(i) Material Changes. In no event shall The Times have the
------------------
right to initiate Material Changes to the Final Plans and Specifications and
EDC shall not be obligated to disburse the Funding on account of Eligible
Costs increased by any such Material Change initiated by The Times. If, in
the course of the Construction of the
-39-
Improvements, The Times or its Contractors determines that a Material Change
to the Plans and Specifications will be required to complete the Improvements,
The Times shall notify EDC of such determination. Within ten (10) days after
EDC's receipt of such notification, EDC shall either inform The Times that it
believes no Material Change is required or it shall instruct the professional
consultant engaged by EDC to prepare the Plans and Specifications (or the
Resident Engineer if such Resident Engineer is the same Person as the
professional consultant engaged by EDC) to make the appropriate changes to the
Plans and Specifications. If EDC fails to respond to The Times within the ten
(10) day period described above and if the Resident Engineer is the same
person as the professional consultant engaged by EDC to prepare the Plans and
Specifications, the Material Changes requested by The Times shall be deemed
approved by EDC and the Resident Engineer shall have the right to make the
appropriate changes to the Plans and Specifications. If EDC instructs its
professional consultant to make changes to the Plans and Specifications, EDC
shall cause such professional consultant to complete such changes within
thirty (30) days after the date of EDC's instruction.
(ii) Non-Material Changes. The Times shall have the right to
----------------------
initiate changes to the Final Plans and Specifications which result only in a
change in the quantity of materials to be supplied under a Construction
Contract (even if such change results in an increase of the cost of such
Construction Contract). EDC shall disburse the Funding on account of each
such change to the Final Plans and Specifications described above, provided
that EDC is notified of such change prior to The Times's submission of a
Requisition pursuant to Article 4 for funds relating to the Work covered by
the change, and further
-40-
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.
(c) Intentionally Omitted.
(d) Changes Initiated by EDC
------------------------
(i) Changes in the Work. EDC shall have the right and
----------------------
authority, on behalf of itself and the Reviewing Parties, to make
interpretations of the Final Plans and Specifications and/or to order minor
changes in the Construction Work that do not increase the price of a
Construction Contract or that do not cause "Substantial Completion" (as such
term is defined in the Lease) of the Project to be delayed by virtue of the
inability to hook up the Project to the Sanitary Sewer System. The Times
shall promptly cause the affected Contractor(s) to comply with any such order.
(ii) Change Orders. In addition to the changes requested
---------------
pursuant to clause (i) above and changes requested by The Times pursuant to
Sec.2.3(b)(i) hereof, from time to time during the course of the Work, changes
in the Requirements governing the construction of the Improvements, field
conditions or other unexpected conditions may require changed, deleted and/or
additional work to be performed. For purposes of this Sec.2.3(d), said changed,
deleted or additional work shall be referred to as "change order work". Only
EDC, on behalf of itself and the Reviewing Parties, shall have the right to
require change order work to be performed. All change order work must be
performed only if ordered by a written directive from EDC (for purposes of
this Sec.2.3(d), the "change order"). Neither oral directives nor any writing
not designated by EDC as a change order will constitute change orders. Upon
receipt of a change order from EDC, the Times shall cause its Contractors
-41-
to promptly comply with it by performing all necessary work in accordance
therewith. If work is added or deleted by a change order, then the amount of
the increase (in the event the change order work would involve any adjustment
in the price of a Construction Contract that would bring the aggregate price
of the Work to an amount greater than the amount of the Funding) or decrease
in the Funding shall be determined in one or more of the following ways as may
be applicable:
(A) If The Times and the Contractor shall agree upon a lump sum value
or a unit price value to increase or decrease the amount of the Funding
for the work specified, The Times shall notify EDC of such agreed upon
lump sum value or unit price value and EDC shall, or shall cause, such
value to be stated in writing in the change order, and the amount of the
Funding shall be changed by such value; and/or
(B) If the Construction Contract and/or the bid proposal of the
affected Contractor is based upon or shall contain unit prices which are
to be applicable to the type of work involved in the proposed change
order work, then said unit prices shall be used to set the value of the
increase or decrease to the amount of the Funding for the change order
work; and/or
(C) If The Times and the affected Contractor cannot agree upon a lump
sum value or unit price value, and no unit price is specified in the
Construction Contract and/or the bid proposal of such Contractor, then
the increase or decrease to the amount of the Funding shall be
determined on a time and materials basis.
(iii) Payment for Change Order Work. Payments for change order
-------------------------------
work shall become due and shall be made by EDC to The Times after the
Contractor has performed
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the change order work and after the Contractor submits a fully signed copy of
said change order (or the portion thereof covered by a Requisition) on the
form annexed hereto as Exhibit D, with The Times's next requisition for
payment, noting on said change order that the Contractor agrees to and accepts
said change order. In the event that the change order is a credit change
order, EDC shall make the deduction for said change order immediately upon the
issuance of said change order against any funds due or to become due under
this Agreement and/or any other change orders with respect to the relevant
Contractor, subcontractor or material supplier.
-43-
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 expiration of the 90 Day
Election Period if The Times fails to deliver to EDC a Sewer System Election
Notice within such period, (ii) the date, prior to the date which is one
hundred and eighty (180) days after the Project Commencement Date, on which
EDC receives notice from The Times, in accordance with Sec.1.1(b)(1) hereof, of
The Times's revocation of its election to construct the Sanitary Sewer System,
or (iii) if The Times has delivered to EDC a Sewer System Election Notice and
has not revoked such election on or prior to the date which is one hundred and
eighty (180) days after the Project Commencement Date and has in fact
commenced the Construction Work, then the later to occur of either (x) one
month after Final Completion of the Work, or (y) 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.
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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
first request for disbursement of the Funding but no later than ten (10) days
prior to the date on which the first payment of the Funding to be made
pursuant to this Agreement is sought, 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 Requisitions under this Agreement;
(c) copies of any then executed Construction Contract(s), containing
all the provisions required pursuant to Sec.1.2(d) hereof; and
(d) a collateral assignment by The Times to EDC of The Times's right,
title and
-45-
interest to the Construction Contracts, which collateral assignment shall be
effective only upon an Event of Default and the termination of this Agreement.
Sec.4.2 Documentation for Disbursements on Account of Eligible Costs. EDC
-------------------------------------------------------------
shall not be obligated to make the first disbursement of the Funding or any
subsequent disbursement with respect to the Work 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 at least ten
(10) days in advance of the date on which each (except as otherwise indicated
in this Sec.4.2) payment is sought:
(i) copies of all Contractor's 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 requisition executed and certified by an authorized
representative of The Times (and addressed to EDC), setting forth:
(x) the amount of the requested disbursement, (y) an itemization
of the Eligible Costs for which the disbursement is sought, and
(z) a list of Contractors whose work is covered by the
requisition, indicating the amount requested with respect to each
such Construction Contract, with a certification by such
authorized representative
-46-
that such Eligible Costs have not previously been reimbursed under
this Agreement. The requisition shall be accompanied by the
certification described in Sec.6.1 hereof and copies of (I) all
Construction 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(d) hereof (or for
Construction 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 Resident Engineer or the Construction Manager to The Times;
(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 requisition, together
with a statement of the Resident Engineer or the Construction
Manager addressed to EDC stating the quantities of materials
installed with respect to the Construction Work completed as of
the date of the requisition 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 requisition has
been performed to the Resident Engineer's or the Construction
Manager's reasonable satisfaction substantially in accordance with
the Final Plans and Specifications; and (IV) in connection with
each disbursement request other
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than the first disbursement request, partial releases of liens
from all 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 have been reimbursed with the Funding pursuant to a
prior Requisition (the items described in this paragraph (ii),
collectively, the "Requisition");
(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, 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 subcontractors'
requisitions to the Resident Engineer, Construction Manager or
General Contractor (as the case may be), if any, invoices, and
receipts;
(iv) a written statement by DLS certifying that each Contractor
performing 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
-48-
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; and
(v) in connection with the first disbursement request, as described in
Sec.6.12, a completed and duly executed W/MBE Plan in the form
annexed hereto as Exhibit H.
(b) As of the date of the disbursement, (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 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.
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ARTICLE FIVE - REPRESENTATIONS, WARRANTIES AND
----------------------------------------------
GUARANTIES 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.
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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 Intentionally omitted.
Sec.5.6 Intentionally omitted.
Sec.5.7 Quality of Work; Guaranties and Warranties.
-------------------------------------------
(a) The Times shall cause the Construction Work to be performed in a
good and workmanlike manner, and all materials and equipment and workmanship
utilized or furnished in connection with the Construction Work shall be in new
(unless otherwise specified in the Final Plans and Specifications) and good
condition, fully operational, without defects (except to an immaterial
extent), substantially in accordance with the Final Plans and Specifications.
The Times shall, in connection with the Construction Work, obtain the maximum
guaranties and warranties on labor, materials and equipment as are generally
available within the relevant industry. The costs of obtaining such
guaranties and warranties shall be considered Eligible Costs and are payable
with the Funding.
(b) (i) The Times shall repair, replace, restore, remedy or correct,
or cause to be
-51-
repaired, replaced, restored, remedied or corrected, any defects, faults or
deficiencies (including any damage arising out of such defects, faults or
deficiencies) in workmanship or materials which exist, occur, or are
discovered within or affecting the Construction Site and are covered by the
guarantees and warranties required to be obtained pursuant to this Sec.5.7,
within ten (10) Business Days after notice of such defect, fault or deficiency
from EDC or the City to The Times (provided that The Times receives such
notice at least ten (10) days prior to the one year anniversary of the
relevant guaranty or warranty). If the nature of the correction or remedy is
such that The Times cannot reasonably be expected to complete such remedy or
correction or cause such remedy or correction to be completed within ten (10)
Business Days of said notice, The Times shall commence, or cause the
commencement of, such remedy or correction within such ten (10) Business Day
period and diligently and in good faith prosecute such remedy or correction to
completion.
(ii) Notwithstanding anything to the contrary contained in clause
(i) above, if any guaranty or warranty extends for a period longer than twelve
(12) months after the Final Acceptance Date, The Times shall assign its rights
and interests therein to EDC and the City, which assignment shall be in form
and substance reasonably acceptable to EDC, and executed by The Times, the
Construction Manager or the General Contractor (as the case may be).
Thereafter, The Times shall have no further obligation under this Agreement to
repair, replace, restore or correct, or cause the repair, replacement,
restoration or correction of, any defects, faults or deficiencies (including
any damage arising out of such defects, faults or deficiencies) in workmanship
which The Times is notified of on or after
-52-
the date of the assignment of such guaranties and warranties and EDC and the
City will not prosecute claims against The Times but rather will seek
compensation or services from the party or parties giving the pertinent
guaranty or warranty. The Times will cooperate with EDC and the City, at no
cost or expense to The Times, in the prosecution of any claims against such
parties after the expiration of the above described twelve (12) month Guaranty
Period.
(c) Intentionally Omitted.
(d) If The Times fails to repair, replace, restore, remedy or correct,
or cause to be repaired, replaced, restored, remedied or corrected, any
defect, fault or deficiency within ten (10) Business Days after notice thereof
as provided in Sec.5.7(b), or, if the nature of such correction or remedy is
such that The Times cannot reasonably be expected to complete such repair,
replacement, restoration, remedy or correction, or cause such repair,
replacement, restoration, remedy or correction to be completed, within ten
(10) Business Days after said notice, The Times has not promptly commenced, or
caused to be commenced, within said ten (10) Business Days or diligently and
in good faith prosecuted, or caused to be prosecuted, such repair,
replacement, restoration, remedy or correction to completion, then EDC or the
City may (but is not obligated to) provide The Times with written notice that,
if such remedy or correction is not completed or commenced and diligently and
in good faith prosecuted, as the case may be, within ten (10) Business Days
following delivery of said notice, EDC or the City shall perform the required
corrective or remedial work. The Times shall then cause the following to
happen: (i) repair, replace,
-53-
restore, remedy or correct, or cause to be repaired, replaced, restored,
remedied or corrected, the item within ten (10) Business Days following such
notice except as provided in clause (ii) below, or (ii) if the nature of the
repair, replacement, restoration, remedy or correction is such that The Times
cannot reasonably be expected to complete, or cause to be completed, such
repair, replacement, restoration, remedy or correction within said ten (10)
Business Days following such notice, then The Times shall be required to
commence, or cause to be commenced, within ten (10) Business Days such repair,
replacement, restoration, remedy or correction, and diligently and in good
faith prosecute, or cause to be prosecuted, such repair, replacement,
restoration, remedy or correction to completion. If in the event of item (i)
of the preceding sentence, such repair, replacement, restoration, remedy or
correction is not completed or caused to be completed within ten (10) Business
Days, or, in the event of item (ii) of the preceding sentence, such repair,
replacement, restoration, remedy or correction is not commenced or caused to
be commenced within ten (10) Business Days and diligently completed or caused
to be completed, then EDC or the City may (but is not obligated to) perform
the required corrective work itself or engage independent contractors and
subcontractors to perform such corrective work, and shall be entitled to
reimbursement for the reasonable cost of such work, plus an amount equal to
interest at the Late Charge Rate on, and the out-of-pocket costs of collection
of, any reimbursement due EDC or the City from The Times hereunder, including
but not limited to reasonable attorneys' fees. If The Times disputes the need
for such repairs, the obligation of The Times pursuant to this Agreement to
repair or cause such repairs to be
-54-
made, or the cost of such repair, such dispute shall be resolved by
arbitration in accordance with the procedure for arbitration set forth in
Article 34 of the Lease and the time periods set forth in this Sec.5.7(d) shall
be tolled during the pendency of such arbitration. The costs of such
arbitration (including, but not limited to, legal fees) shall be paid as set
forth in Section 34.02(b) of the Lease.
(e) Intentionally omitted.
(f) Any warranties or guaranties relating to the construction and
completion of the Construction Work or materials in connection therewith that
are required to be obtained hereunder shall, to the extent reasonably
obtainable by The Times, the Resident Engineer, the Construction Manager or
the General Contractor (as the case may be), expressly be made for the benefit
of The Times, the Resident Engineer, the Construction Manager or the General
Contractor (as the case may be), EDC and the City, and, to the extent that EDC
or the City are not expressly named in any such warranty or guaranty, The
Times, the Resident Engineer, the Construction Manager or the General
Contractor (as the case may be), shall assign its rights and interest therein
to EDC and the City in accordance with Sec.5.7(b)(ii) hereof.
(g) The provisions of this Sec.5.7 shall survive the completion of
disbursement of the Funding and the termination of this Agreement until the
expiration of the respective Guaranty Periods or such period of time
thereafter necessary to remedy or correct any default, fault or deficiency
discovered within such Guaranty Periods which is required to be remedied or
corrected hereunder.
-55-
(h) Notwithstanding anything to the contrary contained in this
Agreement, if any Person other than The Times connects into the Sanitary Sewer
System, then the provisions of this Sec.5.7 shall be deemed null and void and of
no further effect and thereafter The Times shall have no responsibilities or
obligations with respect to the workmanship and operation of the Sanitary
Sewer System as set forth in this Sec.5.7.
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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.
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ARTICLE SIX
-----------
COVENANTS
---------
Sec.6.1 Requisitions Update The Times's Representations. The Times
---------------------------------------------------
covenants that each Requisition 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, it being understood that The Times shall
not be held responsible for failure to comply with the Requirements to the
extent that such failure arises out of The Times's performance of the Work in
accordance with the Final Plans and Specifications.
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
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attached hereto. The Times shall comply with all of the applicable 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 shall require, or cause to be required, all
subcontracts with respect to the Construction Work to include the same
requirements, so that the Contractor(s) and any subcontractors 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 trainees), and the filing of any required
construction employment reports with
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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
with whom The Times enters into Construction 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 to enforce such compliance by the
subcontractors and materials suppliers hired by such Contractors in connection
with the Construction Work.
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 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
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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 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 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.
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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 either (i)
such defective work was performed in accordance with the Final Plans and
Specifications, or (ii) such deviation from the Final Plans and Specifications
was necessitated as a result of 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 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
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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 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
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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 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.
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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, other than
those portions of the Construction Site, if any, that constitute a part of the
Premises (in which case, the creation of, or the permission or sufferance to
exist of, any mortgage encumbrance, lien, security interest, claim or charge
shall be made in accordance with the terms of the Lease).
(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.
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 Work, The
Times shall (i)
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include in such Construction Contract the requirements of the MacBride
Principles Rider, attached hereto as Appendix J, and shall (ii) require its
Contractors (A) to comply with applicable covenants and representations set
forth in Appendix J, and (B) to cause its contractors, subcontractors, and
materials suppliers performing the Work 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 or
materials supplier with respect to which there is not another contractor,
subcontractor or materials supplier 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 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.
(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
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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 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.
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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 undertake the
construction of the Sanitary Sewer System 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 changes diminish the ability of the Sanitary Sewer System
to adequately serve the Premises and the Project, and further 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 of the inability to hook up the Project to the
Sanitary Sewer System. In such circumstances, EDC shall have the right (but
shall not be obligated) to assume any
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Construction 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,
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. 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 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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Sec.7.4 Right to Reinstate Agreement. If, after termination of this
-------------------------------
Agreement (the "Initial Termination"), EDC fails, in accordance with Sec.7.3
above, to either (i) commence the construction of the Sanitary Sewer System,
or (ii) if The Times had already commenced the construction of the Sanitary
Sewer System pursuant to the terms of this Agreement but such construction was
stopped as a result of the termination of this Agreement, recommence the
construction of the Sanitary Sewer System, in either case within six (6)
months after the Initial Termination, then provided that The Times shall have
given EDC thirty (30) days prior written notice and an opportunity to cure,
The Times shall have the right to elect to reinstate this Agreement and
construct the Sanitary Sewer System in accordance with the terms hereof;
provided, however, that any costs incurred by The Times in excess of the
amount of funds allocated by the City and EDC for the Funding at the time of
the termination of this Agreement shall be paid at the sole cost and expense
of The Times without any right of reimbursement under this Agreement or any
other agreement of The Times with EDC or the City if and to the extent that
such excess amounts are incurred by reason of The Times's default or The
Times's failure to perform its obligations with respect to the construction of
the Improvements in accordance with the Final Plans and Specifications
(including, without limitation, construction delays). Upon reinstatement of
this Agreement in accordance with this Sec.7.4, all terms and provisions of this
Agreement shall be in full force in effect, including without limitation, the
provisions of this Article 7 with respect to EDC's right to terminate this
Agreement upon the occurrence of a further Event of Default. The provisions
of this Sec.7.4 shall survive the Initial Termination but shall not survive any
further or subsequent termination.
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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 and materials
suppliers 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 efforts to cause the
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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 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
or in the payment of any other monetary amount owed to The Times pursuant to
the provisions of this Agreement and fails to cure such default within thirty
(30) days after The Times delivers notice (the "EDC Default Notice") to EDC of
such default, or if the moneys in the aggregate sum of approximately $3.6
million, or such other greater or lesser amount as may be necessary to pay for
the costs of the Work and any change order work or other changes to the Final
Plans and Specifications or Construction Contracts approved by EDC, shall not
be made available to EDC by the City, in whole or in part for any reason,
then, provided that The Times proceeds with the construction of the
Improvements, for each dollar of Funding not so disbursed or monetary amount
not so paid by EDC or made available to EDC by the City, The Times shall have
the right to (y) offset against future Rental (other than Impositions) due
under the Lease and against College Point Improvement Fund Payments due under
the Lease in an amount equal to the Funding not so disbursed by EDC, and (z)
offset against
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Rental (other than Impositions and College Point Improvement Fund Payments)
due under the Lease in an amount equal to any other monetary amount which EDC
is obligated to pay under this Agreement and has not so paid, until such time
as EDC recommences the disbursement of the Funding or pays such other monetary
amount. The Times agrees that the right to an 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.
(c) In the event that (i) EDC has defaulted in the performance of any
obligation on EDC's part to perform under this Agreement other than the
disbursement of the Funding, or (ii) EDC has defaulted 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, 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
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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.
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.
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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.
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, 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 or subcontractors. 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. Nothing contained herein is intended to
create an obligation on The Times to defend, indemnify and hold
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harmless the Public Parties against those claims, damages, judgments,
liabilities and causes of action described in Sec.1.1(c)(5) hereof for
which it is determined that EDC or the City or their respective
employees, agents or consultants are responsible for. 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) 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 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).
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Sec.9.12 No Agency. Neither The Times nor any of its employees,
-----------
Contractors or subcontractors 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 and
subcontractors.
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 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 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
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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 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.
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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,
(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 #3 and Funding
Agreement #4.
(b) Cooperation with Investigations. Subject to the exclusions set
---------------------------------
forth in
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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.
(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
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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 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
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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, 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
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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 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
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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 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
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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 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
------------------
contained 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.
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(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.
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
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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.
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 Weisbard, to me known, who, being by me duly sworn, did depose
and say that he resides at c/o 110 William St., NY, NY; that he is
the Pres. of New York City Economic Development Corporation, the
corporation described in and which executed the foregoing instrument; and that
he signed his name thereto by authority of the board of directors of
such corporation.
/s/ Concetta Miele
----------------------------
Notary Public
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
On the 17th day of December, 1993,before me personally came
Katharine P. 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 Senior 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.
/s/ 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 Sullivan, to me known, who, being by me duly sworn, did depose
and say that 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 he acknowledged that he signed his name
thereto on behalf of The City of New York and pursuant to the authority vsted
in him.
/s/ CONCETTA MIELE
------------------------
Notary Public
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