FUNDING AGREEMENT #3
between
NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION
and
THE NEW YORK TIMES COMPANY
Dated as of December 15, 1993
Relative to the construction of
an interim New York City Police Department
vehicle pound at the South Brooklyn
Marine Terminal in the Borough of Brooklyn
or another site in the City of New York selected by EDC
TABLE OF CONTENTS
Page
PREAMBLE 1
DEFINITIONS 4
ARTICLE ONE THE WORK; PERFORMANCE, PROCUREMENT
- ----------- AND CONTRACT REQUIREMENTS
Sec.1.1 General Provisions and Provisions Regarding
Design and Construction 16
Sec.1.2 Procurement of Bids, Services and Goods 24
Sec.1.3 Liaison to EDC 33
ARTICLE TWO THE FUNDING
- -----------
Sec.2.1 Agreement to Fund 34
Sec.2.2 Disbursements 34
Sec.2.3 Funding of Costs of Changes 37
ARTICLE THREE THE TERM
- -------------
Sec.3.1 Term 42
ARTICLE FOUR CONDITIONS FOR DISBURSEMENT
- ------------
Sec.4.1 Initial Submissions by The Times 44
Sec.4.2 Documentation for Disbursements on Account
of Eligible Costs 45
Sec.4.3 Direction of Submissions 48
ARTICLE FIVE REPRESENTATIONS, WARRANTIES AND
- ------------ GUARANTIES OF THE TIMES
Sec.5.1 Organization; Standing 49
Sec.5.2 Intentionally Omitted 49
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Page
Sec.5.3 Conflict, etc. under Other Documents 49
Sec.5.4 No Litigation 50
Sec.5.5 Intentionally Omitted 50
Sec.5.6 Intentionally Omitted 50
Sec.5.7 Quality of Work; Guaranties and Warranties 50
ARTICLE FIVE-A REPRESENTATIONS AND WARRANTIES OF EDC
- --------------
Sec.5A.1 Organization; Standing 52
Sec.5A.2 Due Authorization; Enforceable Obligations 52
ARTICLE SIX COVENANTS
- -----------
Sec.6.1 Requisitions Update The Time's Representations 53
Sec.6.2 Compliance with Other Agreements and Law;
Legal Status 53
Sec.6.3 Maintenance of and Compliance with Insurance
Requirements 53
Sec.6.4 Maintenance of Office 54
Sec.6.5 Compliance with Applicable Law 54
Sec.6.6 Assignment 55
Sec.6.7 Maintenance of Records 56
Sec.6.8 Intentionally Omitted 56
Sec.6.9 Due Application of Funding Proceeds 56
Sec.6.10 Defects; Non-Conforming Work 57
Sec.6.11 Participation by Women and Minority Owned
Businesses 57
Sec.6.12 No Liens 60
Sec.6.13 Intentionally Omitted 60
Sec.6.14 Intentionally Omitted 60
Sec.6.15 Intentionally Omitted 60
Sec.6.16 MacBride Principles 60
Sec.6.17 No Waiver of Compliance 61
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Page
ARTICLE SEVEN DEFAULT AND TERMINATION
- -------------
Sec.7.1 Events of Default 62
Sec.7.2 Default Remedies; Exculpation 63
Sec.7.3 Termination 66
Sec.7.4 Right to Reinstate Agreement 67
ARTICLE EIGHT NOTICES
- -------------
Sec.8.1 Notice 69
Sec.8.2 Disbursement Submissions 70
ARTICLE NINE GENERAL CONDITIONS AND COVENANTS
- ------------
Sec.9.1 Conflict of Interests 71
Sec.9.2 No Liability of Individuals 72
Sec.9.3 Anti-Boycott Provisions 72
Sec.9.4 Governing Law 73
Sec.9.5 Liability of EDC 73
Sec.9.6 Amendments 75
Sec.9.7 Successors and Assigns 75
Sec.9.8 Assignment of Funds 75
Sec.9.9 Counterparts 76
Sec.9.10 Interpretation 76
Sec.9.11 Indemnity 76
Sec.9.12 No Agency 77
Sec.9.13 Venue 78
Sec.9.14 Investigations; Cooperation 79
Sec.9.15 Intentionally Omitted 87
Sec.9.16 Maximum Interest Rate 87
Sec.9.17 Captions 87
Sec.9.18 Gender, Etc. 87
Sec.9.19 Assignment by EDC 87
Sec.9.20 Obligations of Newspaper Division 88
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Page
ARTICLE TEN AGREEMENT OF THE CITY
- -----------
Sec.10.1 City's Agreement to Fund EDC 89
Sec.10.2 Valid Agreement of the City 89
Sec.10.3 The Times's Rights Against the City 89
Appendix A - Premises
Appendix B - Proposed Site for Interim Car Pound at South
Brooklyn Marine Terminal
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 #3 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 New York City Police Department vehicle
pound designed by EDC (the "Interim Car Pound"), to be located on a portion of
the South Brooklyn Marine Terminal in the Borough of Brooklyn more
particularly depicted in Appendix B attached hereto, or such other site in the
City of New York as may be identified by EDC pursuant to Article 12 of the
Lease (any such site, the "Construction Site"), to temporarily replace the
existing New York City Police Department vehicle pound located on the Premises
until a permanent relocation vehicle pound can be constructed by the City (the
Interim Car Pound, is sometimes hereinafter referred to as 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 funds
sufficient to fully reimburse The Times for its construction of the
Improvements and the performance of the
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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 funds, which is
currently estimated by EDC to be approximately $550,000, 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:
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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 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.
"Car Pound Removal
Date" As defined in Sec.1.1(b)(1).
"Car Pound Self Help
Notice" As defined in Sec.1.1(b)(1).
"City" As defined in Recital A of the Preamble.
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"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, 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.
"CM Costs" The costs paid or payable by The Times to the
Construction Manager for the performance of
construction management and supervision services
relative to the Work, as more particularly set forth
in the proviso to the last sentence of the definition
of Eligible Costs.
"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
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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).
"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 for the
performance of construction management and supervision
services and/or engineering services, (x) in an amount
not to exceed ten percent (10%) of the Hard Costs (as
hereinafter
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defined) with respect to all "general conditions"
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; provided, however that if The Times elects to
engage a Construction Manager instead of a Resident
Engineer (and not in addition to a Resident Engineer),
then Eligible Costs shall include the costs paid or
payable by The Times to the Construction Manager for
the performance of construction management and
supervision services, (x) in an amount not to exceed
ten percent (10%) of the Hard Costs (as hereinafter
defined) with respect to all "general conditions"
items and other reimbursable expenses, and (y) in an
amount not to exceed three percent (3%) of the Hard
Costs with respect to the Construction Manager's fee.
"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 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 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
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Requirements, and (ii) EDC and/or its professional
consultants shall have inspected the Construction
Site, within thirty (30) days after EDC's receipt from
the Resident Engineer or the Construction Manager of
the certification described in clause (i) above, and
certified, by the later to occur of the expiration of
such thirty (30) day period or five (5) days after
such inspection was completed, to The Times that, in
its opinion, the Improvements are complete (except to
an immaterial extent) in accordance with the Final
Plans and Specifications, which certification shall
not be unreasonably withheld; provided however, that
if EDC and/or its professional consultants shall have
failed to inspect the Construction Site within the
thirty (30) day period described above and to give the
certification within the time period described above,
EDC shall be deemed to have inspected the Construction
Site and certified to The Times that the Improvements
are complete.
"Final
Completion" Means that each of the following shall have occurred:
(A) the Resident Engineer or the Construction
Manager shall have issued to EDC a "Certificate
of Payment", or certified its approval of a
"Certificate of Payment" issued to EDC, in
either case stating that it has examined the
Final Plans and Specifications and, in its best
professional judgment, after diligent inquiry,
and on the basis of its observations and
inspections, the Construction Work has been
completed (except to an immaterial extent) in
accordance with the Final Plans and
Specifications and all Requirements and that the
final payment is due to The Times;
(B) the Reviewing Parties (i) shall have made a
final inspection of the Construction Site upon
receipt of 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
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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 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 Interim Car
Pound, as developed by EDC and delivered by EDC to The
Times in accordance with
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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 has 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 the
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 amended from
time to time.
"Funding Agreement #2" The funding agreement between EDC and The Times dated
as of the date hereof which provides for the funding
to The Times of City capital budget dollars necessary
to pay for the construction of a City sanitary sewer
system to service the Premises, as such agreement may
be amended from time to time.
"Funding Agreement #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
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EDC, engaged to perform and manage the
Construction Work.
"Governmental
Authorities" The United States of America, the State of New
York, the City and any agency, department,
legislative body, commission, board, bureau,
instrumentality or political subdivision of any
of the foregoing, now existing or hereafter
created, having legal jurisdiction over the
Improvements or the Construction Site or any
portion thereof or any street, road, avenue,
sidewalk or water comprising a part of or
immediately adjacent to the Construction Site.
"Hard Costs" The aggregate of the costs set forth in clauses
(i)(A) and (i)(B) of the definition of Eligible
Costs.
"Impositions" As defined in Section 3.09(b)(i) of the Lease.
"Improvements" As defined in Recital C of the Preamble.
"Initial Termination" As defined in Sec.7.4.
"Interim Car Pound" As defined in Recital C of the Preamble.
"Interim Penalty" As defined in Sec.9.14(f)(i).
"Investigation" As defined in Sec.9.14(a).
"Investigation Forms" As defined in Sec.1.2(c).
"Late Charge
Rate" The Prime Rate (as hereinafter defined) plus one
percent (1%).
"Lease" As defined in Recital B of the Preamble.
"Lease Execution Date" As defined in Article 1 of the Lease.
"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 $125,000 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
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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.
"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 supervision of the Work
performed by the General Contractor and the
other Contractors, subcontractors and material
suppliers.
"Parties" EDC and The Times.
"Person" An individual, corporation, partnership, joint
venture, estate, trust, unincorporated association;
any federal, state, county or municipal government or
any bureau, department or agency thereof; and any
fiduciary acting in such capacity on behalf of any of
the foregoing.
"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.
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"Prohibited Person" As defined in Sec.1.1(b)(4).
"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.
"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 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 reason, 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 Business Services, or
their respective designees, including without
limitation, their hired
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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.
"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" A 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 of
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 delays 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).
"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. The Times shall, in its
----------------------------------------
sole discretion, have the right (but not the obligation), subject to such
conditions set forth in paragraph (b) below and other such conditions and
limitations as may be set forth in Article 12 of the Lease, to elect to
construct, on behalf of the City, the Interim Car Pound. If The Times elects
to construct the Interim Car Pound, 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. (1) If The Times elects to
exercise its right to construct the Interim Car Pound 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 "Car Pound Self Help Notice") to EDC pursuant to
the applicable provisions of the Lease no earlier than the date (the "Car
Pound Removal Date") determined in accordance with Section 12.01 of the Lease
for the removal from the Premises of the existing New York City Police
Department vehicle pound, but in no event later than the first anniversary of
the Car Pound Removal Date; provided, however that, if The Times gives a Car
Pound Self Help Notice within three
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(3) months before or after the second anniversary of the Lease Execution Date
and if EDC or the City certifies in good faith that completion of construction
of a permanent relocation New York City Police Department vehicle pound and
delivery of possession of the Premises to The Times will not require more than
an additional ninety (90) days from the date of the Car Pound Self-Help
Notice, The Times shall not have the right to construct the Interim Car Pound
unless EDC shall have failed to remove, or caused to be removed, the Car Pound
from the Premises and delivered possession of the Premises to The Times on or
prior to the expiration of such ninety (90) day period. The Car Pound Self
Help Notice shall specify (i) the approximate date on which The Times intends
to commence construction of the Interim Car Pound (taking into consideration
the limitation set forth in the foregoing sentence with respect to the
commencement of such construction), (ii) the Resident Engineer, Construction
Manager or Owner's Representative that The Times intends to select with
respect to the construction of the Interim Car Pound, 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 Interim Car Pound.
(2) Intentionally omitted.
(3) Notwithstanding the foregoing, if The Times notifies EDC in
accordance with Sec.1.1(b) (1) above of its intention to construct the Interim
Car Pound, The Times shall have the right to revoke such election by written
notice to EDC at any time thereafter provided that the Times did not commence,
or cause to be commenced, the
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Work. If The Times notifies EDC of its revocation of the election in
accordance with the foregoing sentence, then upon EDC's receipt of such
notification of revocation, 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.
(c) Plans and Specifications. (1) EDC shall deliver to The Times
--------------------------
copies of the Final Plans and Specifications for the construction of the
Interim Car Pound within ten (10) days after EDC's receipt from The Times of
the Car Pound Self Help Notice. The Final Plans and Specifications shall be
submitted together with (i) an Engineer's Estimate, as of the date of such
submission, 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.
(2) Intentionally Omitted.
(3) To the extent that EDC has not obtained and assigned to The
Times (or made available to The Times for it's benefit) the following items,
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
-18-
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, 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 and 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
-19-
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 incurred by The Times Indemnitees as
a direct result of the negligence or misconduct of EDC, its employees, agents
or consultants.
(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 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
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Agreement.
(e) Performance of the Work. (i) The Times covenants and agrees to
cause the Improvements to be constructed in accordance with the requirements
of this Agreement and with the Final Plans and Specifications and all
applicable Requirements. The Times shall obtain all final acceptances from
the appropriate Reviewing Parties as necessary to complete the Improvements.
(ii) At all times during the performance of the Construction
Work, The Times shall maintain, or cause to be maintained, the Construction
Site in a neat and orderly condition and shall protect the Construction Site
against deterioration, loss, damage or theft.
(f) Site Inspections. Subject to the provisions of Sec.9.11(b) hereof,
-----------------
The Times shall permit EDC and the Reviewing Parties, their agents, employees
and/or professional consultants to make inspections of the Construction Site
during normal business hours or otherwise when Construction Work is in
progress, at reasonable times and upon reasonable notice to The Times and in
accordance with applicable safety standards, (i) with respect to EDC, as it
deems necessary to observe compliance with and performance under this
Agreement, and (ii) with respect to the Reviewing Parties, as are normally
made by the City and its agencies in the course of a project or projects of
similar nature and magnitude to the Work. Such inspections shall not require
the uncovering of any work unless specifically requested in writing by EDC or
the Reviewing Parties, and if 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
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requested by EDC and 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 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 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 diligently proceed
to cause Substantial Completion of the Interim Car Pound to occur; provided,
however that if The Times believes that Substantial Completion of the Interim
Car Pound will occur later than three (3) months after The Times commences
construction of such Interim Car Pound, The
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Times shall promptly notify EDC of the expected length of time it anticipates
it will require to Substantially Complete the Interim Car Pound and delays
encountered, if any.
(2) The Times shall notify EDC of the date the Work shall have been
Substantially Completed. EDC shall have ten (10) Business Days after the
giving of the notice referred to in the preceding sentence to inspect the
Improvements and notify The Times in writing of its acceptance of The Times's
determination of Substantial Completion or to notify The Times 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 ten (10) Business Day period. The Times shall
Substantially Complete those items of the Work, if any, specified in EDC's
notice as not Substantially Complete or otherwise specified 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 ten (10) days after the Substantial Completion
Date.
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Sec.1.2 Procurement of Bids, Services and Goods
---------------------------------------
(a)(1) If The Times elects to construct the Interim Car Pound 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 (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.
-24-
(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 five (5) 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 five (5) Business Day period, of additional bidders that it
proposes that The Times include on the Proposed Bidders List. If EDC fails to
provide such advice within such five (5) 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
-25-
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. EDC reserves the right, at any time prior to
The Times's acceptance of a bid, 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 this Sec.1.2(b)(1)
shall limit The Times's right to reject all bids in its sole discretion.
(2) Notwithstanding anything to the contrary contained herein, in the
event that EDC does not approve any bidder selected by The Times, or withdraws
its prior approval of any bidder chosen in accordance with Sec.1.2(b)(1) above,
The Times shall have the right to revoke its election to construct the
Improvements, provided that The Times reimburses EDC for any Funding already
disbursed by EDC to The Times to pay for Resident Engineer Costs or CM Costs.
The Times shall exercise its right to revoke its election in accordance with
the foregoing by giving EDC written notice of such revocation. Upon EDC's
receipt from The Times's of its notice of revocation and reimbursement of the
Funding previously disbursed as provided above, this Agreement shall terminate
and thereafter neither Party
-26-
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.
(3) Notwithstanding anything to the contrary contained in Sec.1.2(b)(1)
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
Interim Car Pound with a Construction Manager if such Construction Manager is
Lehrer McGovern Bovis, Inc.
(4) Notwithstanding anything to the contrary contained in Sec.1.2(b)(1)
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
Interim Car Pound with a Resident Engineer if such Resident Engineer is the
professional consultant engaged by EDC to prepare 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 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
-27-
obligations under any material written agreement with
EDC or Landlord, unless, such default or breach has been
waived in writing by EDC or Landlord, as the case may be.
(ii) Any Person (A) that has been convicted in a criminal
proceeding for a felony or any crime involving moral
turpitude or that is an organized crime figure or is reputed
to have substantial business or other affiliations with an
organized crime figure, or (B) that directly or indirectly
controls, is controlled by, or is under common control with
a Person that has been convicted in a criminal proceeding
for a felony or any crime involving moral turpitude or that
is an organized crime figure or is reputed to have
substantial business or other affiliations with an organized
crime figure.
(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.
-28-
(iv) Any government, or any Person that, directly or indirectly,
is controlled (rather than only regulated) by a government,
the effects or the activities of which are regulated or
controlled pursuant to regulations of the United States
Treasury Department or executive orders of the President of
the United States of America issued pursuant to the Trading
with the Enemy Act of 1917, as amended.
(v) Any Person that is in default in the payment to the City of
any real estate taxes, sewer rents or water charges
totalling more than $10,000, (or any person that directly
controls, is controlled by, or is under common control with
a Person in such default), unless such default is then being
contested in good faith in accordance with the law.
(vi) Any Person (A) that has owned at any time during the three
(3) years immediately preceding a determination of whether
such Person is a 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.
-29-
(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
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
-30-
Construction Contract;
(3) that the Contractor is solely responsible for the work, direction,
compensation and personal conduct of its employees and
subcontractors;
(4) that the Contractor shall indemnify and hold harmless the City,
EDC and their respective agents, officers, directors, officials,
members and employees from any and all claims, judgments or
liabilities to which they may be subject because of any act or
omission of the Contractor or its respective agents, officers,
directors, employees or subcontractors arising out of or in
connection with the pertinent Construction Contract or because of
any negligence, fault or default of the Contractor or its
respective agents, employees, officers, directors or
subcontractors (as the case may be);
(5) that the Contractor shall maintain accurate, readily auditable
records and accounts with supporting documentation, in accordance
with Accounting Principles, of all work performed, and receipts
and expenditures made, in 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
-31-
(7) that the Contractor represents and warrants, and shall cause its
subcontractors and material suppliers to represent and warrant,
that state and local sales tax has been excluded from the contract
price, to the extent applicable; provided, however, that the
Contractor and its subcontractors and material suppliers shall be
responsible for and pay any and all applicable taxes, including
sales and use taxes, imposed upon leased tools, machinery,
equipment, and upon all supplies and materials and other property
which are consumed in the course of construction or for any other
reasons not incorporated into the Construction Site.
(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 Contract (and the bid packages therefor) such other
provisions as The Times deems necessary to
-32-
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.
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 Car Pound Self Help 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.
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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
-34-
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 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, or alternatively, if The Times elects
to engage a Construction Manager instead of a Resident Engineer (and not in
addition to a Resident Engineer), then with respect to CM Costs, in monthly
installments equal to the CM Costs for the previous month, calculated based on
the Construction Manager's fee schedule attached to the Construction Contract
with respect to the Construction Manager;
(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.
-35-
(c) All disbursements shall be made by check at the principal office
of EDC, or at such other place within the City of New York as EDC may
designate. Disbursement requests shall be submitted within the time periods
and in the manner provided therefor in Article 4.
(d) No portion of the Funding shall be advanced for materials not
incorporated into the Construction Site.
(e) Disbursements of the Funding shall be 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
-36-
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 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.
-37-
(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 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 five (5) 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 five (5) 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.
-38-
(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 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 the amount of time necessary to complete the
Construction Work. 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
-39-
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 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
-40-
(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 a 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 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.
-41-
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 on the
occurrence of any of the following events: (i) the first anniversary of the
Car Pound Removal Date if The Times fails to deliver to EDC a Car Pound Self
Help Notice prior thereto, or (ii) the date on which EDC receives notice from
The Times of The Times's revocation of the Car Pound Self Help Notice in
accordance with Sec.1.1(b)(3) or Sec.1.2(b)(2) hereof and reimburses EDC for any
Funding already disbursed as required pursuant to the terms of this Agreement,
or (iii) if The Times has delivered to EDC a Car Pound Self Help Notice within
the time provided in Sec.1.1(b)(1) hereof and has not revoked such election in
accordance with this Agreement 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; provided, however,
that, notwithstanding anything to the contrary contained herein, if The Times
has not yet exercised its option, pursuant to Sec.1.1 hereof, to
construct the Interim Car Pound and EDC has completed construction
of the permanent relocation New York City Police Department vehicle
pound, then, this Agreement shall terminate upon EDC's completion
of construction of the permanent relocation vehicle pound, and
further provided that, notwithstanding
-42-
anything to the contrary contained herein, upon the expiration or earlier
termination of the Lease, this Agreement shall terminate. All rights,
remedies and liabilities arising prior to the termination or expiration
of the Term shall survive the date of termination or expiration, as the
case may be.
-43-
ARTICLE FOUR - CONDITIONS FOR DISBURSEMENT
------------------------------------------
Sec.4.1 Initial Submissions by The Times. EDC shall not be obligated to
---------------------------------
disburse any of the Funding to The Times unless, at any time prior to the
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
-44-
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
-45-
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
-46-
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
-47-
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 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 unbounded 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.
-48-
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 result 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.
-49-
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.
(b) 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.
-50-
(c) The guaranties and warranties required pursuant to Sec.5.7(b) above
shall, to the extent reasonably obtainable by The Times, the Construction
Manager, the Resident Engineer or the General Contractor (as applicable),
expressly be made for the benefit of The Times, the Construction Manager, the
Resident Engineer or the General Contractor (as applicable), EDC and the City
and, immediately upon obtaining the same, The Times, the Construction Manager,
the Resident Engineer or the General Contractor (as applicable), shall assign
its rights and interests therein to EDC and the City, which assignment shall
be in form and substance reasonably acceptable to EDC. Thereafter, The Times,
the Construction Manager, the Resident Engineer or the General Contractor (as
applicable), shall be relieved in all respects with respect to any further
obligations in connection with the Construction Work including, without
limitation, the obligation to repair, replace, restore, or remedy or correct
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 after the assignment of such guaranties and
warranties. The requirements of the first sentence of this Sec.5.7(c) shall be
included in all Construction Contracts.
-51-
ARTICLE FIVE-A - REPRESENTATIONS AND WARRANTIES OF EDC
------------------------------------------------------
To induce The Times to enter into this Agreement and perform the Work,
EDC represents and warrants as follows:
Sec.5A.1 Organization; Standing. EDC is a not-for-profit corporation,
-----------------------
organized pursuant to Sec.1411 of the New York State Not-For-Profit Corporation
Laws and has all the requisite power, authority and legal right to execute,
deliver and perform its obligations under this Agreement.
Sec.5A.2 Due Authorization; Enforceable Obligations. This Agreement has
-------------------------------------------
been duly authorized, executed and delivered by EDC and constitutes a legally
binding obligation of EDC enforceable in accordance with its terms. A legal
opinion by general counsel of EDC (addressed to The Times) providing that this
Agreement is legal, valid and binding upon and enforceable against EDC in
accordance with its terms (subject, as to enforceability, to principles of
equity and applicable bankruptcy, insolvency and other laws affecting the
rights of creditors generally), is attached hereto as Appendix E and hereby
made a part hereof. A certificate of the Secretary of EDC, dated as of the
date of this Agreement, certifying to the adoption of resolutions by the Board
of Directors of EDC authorizing the execution and delivery of this Agreement
by EDC is attached hereto as Appendix F and hereby made a part hereof.
-52-
ARTICLE SIX
-----------
COVENANTS
---------
Sec.6.1 Requisitions Update The Times's Representations. The Times
----------------------------------------------------
covenants that each Requisition 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
-53-
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
-54-
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 material 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
-55-
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.
-56-
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
-57-
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 any 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(a) 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.
(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) 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
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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
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 (reserving, however, all remedies provided in this Article Seven or
existing otherwise) or to
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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 by this Agreement if any such relevant
individual shall have applied the Funding in violation
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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.
The exercise of any right or remedy shall not be construed as an election or a
waiver of any
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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 Interim Car Pound 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 such
changes shall not increase the amount of time needed to complete the
Construction Work. In such circumstances, EDC shall have the right (but shall
not be obligated) to assume any 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
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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.
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 Interim Car Pound, or
(ii) if The Times had already commenced the construction of the Interim Car
Pound pursuant to the terms of this Agreement but such construction was
stopped as a result of the termination of this Agreement, recommence the
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construction of the Interim Car Pound, in either case within three (3) 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 Interim Car Pound 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 this Agreement and 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 $550,000,
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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future 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 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 existing at any time at law or in equity, or otherwise, and may
be exercised from time to
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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 (including consequential damages awarded to
third parties against The Times Indemnitees), damages, 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).
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,
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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 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
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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.
Sec.9.14. Investigations; Cooperation.
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(a) Definitions. As used in this Sec.9.14:
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(i) "Investigation" shall mean any investigation, audit or
inquiry conducted by the Department of Investigation with respect
to the obtaining and/or
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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
(vii) "Transaction Documents" shall mean the Lease, this
Agreement, Funding Agreement #1, Funding Agreement #2 and Funding
Agreement #4.
(b) Cooperation with Investigations. Subject to the exclusions set
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forth in paragraph (c) of this Sec.9.14, The Times shall during the term of this
Agreement:
(i) cooperate fully and faithfully, and utilize good faith
efforts to cause its Members to cooperate fully and
faithfully, with any Investigation; and
(ii) report, and utilize its good faith efforts to cause its
Members to report, in writing to the Commissioner, any
solicitation of which The Times
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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.
(b) Exclusions. The provisions of Sec.9.14(b) above shall not apply:
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(i) to any information or document known, prepared or obtained
by The Times or its Members (and the sources of such
information or documents), that is protected from compelled
disclosure by any present or future "Shield Law" or any
other statute, constitutional provision, rule, regulation or
case law related to the rights of reporters and/or news
organizations;
(ii) to any Person who refuses to testify based on his or her
privilege against self-incrimination after having been given
assurances that his or her statement, and any information
from such statement, will not be used against such Person in
any subsequent criminal proceeding in any forum (provided,
however, that any Person given such assurances shall have
the right to have the legal sufficiency of such assurances
adjudicated by a court of competent jurisdiction as a
precondition of the applicability of Sec.9.14(b) to such
Person); and
(iii) to any construction contract or other agreement (or the
obtaining or performance thereof) with parties other than
the City or EDC,
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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
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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
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(i) The Times shall have the right to require that the Hearing
be adjourned for a period of not more than thirty (30) days.
(ii) The Deputy Mayor may grant other adjournments of the
Hearing, in the exercise of his or her reasonable
discretion; provided however, that in the case of an
adjournment occasioned by The Times's failure to appear, the
Deputy Mayor may, if he or she determines that there was no
reasonable cause for the requested adjournment or failure to
appear, impose an Interim Penalty.
(iii) The City shall not incur any penalty or damages for delay or
otherwise occasioned by an adjournment of the Hearing.
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(f) Penalties.
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(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 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
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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
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address in reaching his or her determination and in assessing an appropriate
Interim Penalty, Final Penalty, and/or disqualification, the factors in
clauses (i) and (ii) of this Sec.9.14(g). He or she may also consider, if
relevant and appropriate, the criteria established in clauses (iii) and (iv)
of this Sec.9.14(g), in addition to any other information which may be relevant
and appropriate:
(i) The Times's good faith endeavors or lack thereof to cooperate
fully and faithfully with the Investigation, including but not
limited to the discipline,
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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 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.
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(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
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contained herein shall be construed to limit in any manner whatsoever The
Times's right or ability to challenge or seek to enjoin, overturn, set aside
or modify any action taken, determination made or penalty imposed by the
Deputy Mayor pursuant to the provisions of this Sec.9.14.
(k) Concurrent Lease Obligation. The obligations of The Times under
----------------------------
this Sec.9.14 constitute a portion of the obligations of The Times under Article
40A of the Lease, and nothing contained herein shall be construed as
expanding, enlarging or increasing in any way, or as being separate from or in
addition to, the obligations and liabilities of The Times
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pursuant to Article 40A of the Lease.
Sec.9.15. Intentionally Omitted.
Sec.9.16 Maximum Interest Rate
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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
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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.
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The gender used in this Agreement shall be deemed to refer to the
masculine, feminine, or neuter gender, as the context or the identity of the
persons being referred to may require. The singular shall include the plural
and vice versa as the context may dictate.
Sec.9.19 Assignment by EDC. EDC shall not assign this Agreement without
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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
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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
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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
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Sec.10.1 City's Agreement to Fund EDC. The City, by executing this
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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
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Counsel (addressed to The Times) to the effect 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
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Title: President
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THE NEW YORK TIMES COMPANY
By: /s/ Katharine P. Darrow
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Title: Senior Vice President
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THE CITY, BY SIGNING IN THE
PLACE PROVIDED BELOW,
AGREES TO BE BOUND BY THE
PROVISIONS OF ARTICLE TEN HEREOF:
THE CITY OF NEW YORK
By: /s/ Barry F. Sullivan
____________________________
APPROVED AS TO FORM:
By: /s/
____________________________
Acting Corporation Counsel
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STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
On the 17th day of December, 1993,before me personally came Carl
Weisbrod, to me known, who, being by me duly sworn, did depose and say that s/he
resides at 110 William St., NY, NY; that s/he is the President of New York City
Economic Development Corporation, the corporation described in and which
executed the foregoing instrument; and that s/he signed her/his name thereto by
authority of the board of directors of such corporation.
Colleen B. McHale
----------------------------
Notary Public
COLLEEN B. McHALE
Commissioner of Deeds
City of New York - No. 5-1201
Certificate Filed in Richmond County
Commission Expires Oct. 1, 1994
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
On the 17th day of December, 1993,before me personally came Katharine
Darrow, to me known, who, being by me duly sworn, did depose and say that s/he
resides at 16 Garden Place, Brooklyn, NY; that s/he is the Senior Vice President
of 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.
Beverly Sturr
----------------------------
Notary Public
BEVERLY STURR
Notary Public, State of New York
No. 31-5014766
Qualified in New York County
Commission Expires July 6, 1995
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STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
On the 17th day of December, 1993,before me personally came Barry F.
Sullivan, to me known, who, being by me duly sworn, did depose and say that s/he
resides at c/o City Hall, NY, NY; that s/he is the Deputy Mayor of The City of
New York, the same person who executed the foregoing instrument; and that s/he
acknowledged that s/he signed her/his name thereto on behalf of The City of
New York and pursuant to the authority vested in her/him.
Colleen B. McHale
----------------------------
Notary Public
COLLEEN B. McHALE
Commissioner of Deeds
City of New York - No. 5-1201
Certificate Filed in Richmond County
Commission Expires Oct. 1, 1994
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