Cooper-Hewett FY 11 Grant.pdf

City of New York Cultural Capital Grant Agreement - March, 2010 Version

CULTURAL CAPITAL GRANT AGREEMENT

between

CITY OF NEW YORK

and

THE SMITHSONIAN INSTITUTION

(A Trust Instrumentality of the United States) by and through its

COOPER-HEWITT NATIONAL DESIGN MUSEUM

FMS ID: PV467COOP

Printed on paper containing 30% post-consumer material.

GRANT AGREEMENT (“Agreement” or “Grant Agreement”) dated _____________ between THE CITY OF NEW YORK ("City"), acting by and through the Department of Cultural Affairs (“DCLA”), located at 31 Chambers Street, Second Floor, New York, New York 10007, and the Department of Design and Construction (“DDC”), located at 30-30 Thomson Avenue, Long Island City, New York 11101, and the SMITHSONIAN INSTITUTION, a trust instrumentality of the United States, by and through its COOPER-HEWITT NATIONAL DESIGN MUSEUM, a not for profit corporation, located at 2 East 91 Street, New York, NY 10028, (“Grantee”)

Paragraph 1. Statement of Justification; Purpose of the Agreement

A. Statement of Justification

(i) Grantee is a not-for-profit corporation that operates a museum dedicated to historic and contemporary design in premises (“Premises”) located at 9 East 90 Street (the Carnegie Mansion or “Mansion”) and 11 East 90 Street, (the Miller and Fox Townhouses, or “Townhouses”) Block 1502, Lot 1 in the Borough of Manhattan. Grantee’s mission is to advance public understanding of design across twenty-four centuries

(ii) Grantee is the fee owner of the Premises. Grantee has executed a certain Public Purpose Agreement concerning the Premises in favor of the City dated May 26, 2010 having a term of 20 years,

(iii) Grantee intends to undertake certain improvements (“Project”) at the Premises, consisting of renovation of the Premises to relocate certain museum collections and the National Design Library from the Mansion to the Townhouses, and renovate office and storage space within the Townhouses.

(v) Grantee estimates that the Project will cost approximately $10,023,850 to complete. At Grantee’s request, the City has agreed to provide capital funding in a sum not to exceed $980,000 towards the cost of the Project, subject to the terms and conditions set forth in this Agreement.

B. Purpose of the Agreement

The purpose of this Agreement is to offer City support for Grantee’s mission by providing funding through the City’s capital budget for the Project to be undertaken by Grantee as described in the section entitled “Project Overview” (“Project Overview”) contained in Exhibit A attached hereto and incorporated herein.

In return for such City support, Grantee agrees to (i) operate and dedicate the Premises for the City Purpose defined in the Public Purpose Agreement (“PPA”), attached hereto and incorporated herein as Exhibit A-1, that Grantee has caused to be recorded against the property records of the Premises, and (ii) otherwise comply with the terms of such PPA, for the duration of the term stated therein.

Grantee represents and warrants that the City’s interest as reflected in the PPA constitutes a first priority interest on the Premises prior and superior to each and every other lien (statutory or otherwise, including, but not limited to, encumbrance, lease, easement, option, restriction, estate or other interest including, but not limited to, mechanic’s, laborer’s, materialman’s and public improvement liens, restrictive covenant, security interest, mortgage, deed of trust, priority, pledge, charge, conditional sale, title retention agreement, financing lease or other encumbrance, interest or similar right of others, or any other agreement to give any of the foregoing). Grantee shall provide a title report indicating that there are no prior liens on the Premises which would conflict with the City’s first priority interest, and if such prior liens are indicated, the Grantee shall provide documentation that such liens have either been extinguished or subordinated to the City’s interest. Grantee shall furnish title insurance that insures the City’s first priority interest.

Grantee represents and warrants that the execution, delivery and performance by Grantee of this Agreement and related documents, and all obligations under this Agreement and related documents, have been duly authorized by all necessary corporate action, as evidenced by the resolution of the board of Grantee attached hereto and incorporated herein as Exhibit A-2 (the “Board Resolution”).

Paragraph 2. Grant Amount; Completion of the Project

A. In consideration for Grantee’s completion of the Project, the City shall pay Grantee an amount not to exceed $980,000 (“Grant”). Such Grant shall be in the form of reimbursement to Grantee for the payment of certain Eligible Project Costs incurred by Grantee in performing City-Funded Work in connection with the Project as such costs are identified in the Project Spreadsheet set forth in Exhibit A.

B. (i) In return for the receipt of the Grant, and subject to any City review or approval required by this Agreement, Grantee agrees that it shall design, contract for, supervise and complete (a) the City-Funded Work in accordance with the City-Funded Scope of Work, and (b) the entire Project as defined in the Project Overview at no further cost to the City. Grantee acknowledges that the Grant may not cover all costs associated with the Project, and that Grantee is solely responsible for all costs incurred in completing the Project over and above the amount of the Grant.

(ii) As inducement for, and in consideration of, the City's award of the Grant, Grantee agrees that it will have available through Substantial Completion the sum of at least $98,000 (the “Project Reserve”) to be used by Grantee for the purpose of funding cost overruns in connection with the Project. Grantee shall not make any withdrawals from the Project Reserve without the prior written approval of the City. Upon Substantial Completion, Grantee shall submit a written request to the City for permission to withdraw the Project Reserve.

C. At any time during Grantee’s performance of the Project, the City may request that Grantee provide assurances that sufficient funds will be available to complete the Project, including the non-City-Funded portion of the Work. Should the City determine after reviewing the information provided by Grantee that sufficient funds may not be available, the City may elect to withhold further payments under this Agreement until it receives reasonable assurances from Grantee that the necessary funds are available.

D. Notwithstanding the foregoing, the City may, in its discretion, agree at a later date to provide additional funds for the Project, provided, however, that no additional City funds shall be allocated for the City-Funded Work originally contemplated by this Agreement.

Paragraph 3. Agreement Term

This Agreement shall become effective upon the date that it is filed by the Comptroller (“Effective Date”) and shall terminate three (3) years after the Effective Date or on the Punch List Completion Date, whichever is earlier (“Term”), unless extended or sooner terminated in accordance with its terms.

Time being of the essence, Grantee shall commence performance under this Agreement within a reasonable period of time, but in no event later than ninety

(90) days after the Effective Date. The City shall have the option of extending the Term of this Agreement to allow for completion of the City-Funded Work or the Project, by notifying Grantee in writing of such extension.

Paragraph 4. Project Commencement Meeting; Project Schedule

A. Project Commencement Meeting

The initial meeting (“Project Commencement Meeting”) for the Grant shall be held within thirty (30) days after the Effective Date. At the Project Commencement Meeting, Grantee shall submit the Project Schedule described in Paragraph 4(B) and such information as may be specified by the City, including but not limited to a draft of the Quarterly Progress Report referred to in Paragraph 10(A) and a list of potential bidders for the City-Funded Work.

Additionally, Grantee and the City shall agree upon the following:

A schedule for regular meetings between Grantee and the City, such meetings to be held as often as once a month at the discretion of the City;

and

The date for submission by Grantee of the following items:

Quarterly Progress Reports pursuant to Paragraph 10(A);

Monthly Payment Requests pursuant to Paragraph 11(A); and

The first M/WBE Status Report pursuant to Paragraph 9(E).

B. Project Schedule

(i) A project schedule (the “Project Schedule”) shall be submitted by Grantee in a format customary in the construction industry in New York City, such format to be approved in advance by the City. Among other items, the Project Schedule shall outline the date of commencement and the date of completion for each of the following:

Each Significant Milestone for the design and construction of the Project that has not yet been completed as of the Effective Date;

Bidding and award of each Construction Contract and Consultant Contract to be awarded which will be City-Funded; and

To the extent reasonably known, application for and issuance of all Required Approvals for the City-Funded Work, including but not limited to inspections and approvals from the Department of Buildings, Fire Department, Landmarks Preservation Commission, Public Design Commission, Board of Standard and Appeals, and/or any other regulatory approvals or certifications necessary to make the Project eligible for beneficial occupancy.

(ii) Grantee shall make such revisions to the Project Schedule as may be requested by the City. Following approval of the Project Schedule, Grantee shall

(a) use best efforts to cause the Project to proceed in conformity with the Project Schedule, (b) promptly advise the City of any events that may cause Grantee to fail to achieve any of the dates set forth in such schedule, and (c) update the Project Schedule as needed with the submission of each Quarterly Progress Report.

(iii) In the event of any substantial deviation from the approved Project Schedule, the City, in its discretion, may withhold payments under this Agreement until such time as the City is assured that the Project will be substantially completed by the Substantial Completion Date specified in such Project Schedule, or within a reasonable period of time thereafter.

Paragraph 5. City Review of Design Documents; Approval of Changes

A. Non-City-Funded Design

In those instances where the City has not agreed to reimburse Grantee for any portion of the design costs for the Project, Grantee shall make a presentation of the Design Documents to the City in accordance with Sections IV(B) of the Guidelines for Cultural Capital Grants in effect on the Effective Date

(“Guidelines”), and shall thereafter update the City on design development as requested by the City.

B. City-Funded Design

(i) In the event that the City has agreed to reimburse Grantee for all or a portion of the design costs for the Project, Grantee shall select the Architect and all other City-Funded Consultants in the manner set forth in Paragraph 8(A)(1).

(ii) Grantee shall make a presentation to the City of the plans and specifications for such work, along with the corresponding cost estimate at each Significant Milestone. If the City raises issues and/or concerns regarding such presentation, Grantee shall not direct the Architect to proceed to the next Significant Milestone, or in the case of Construction Documents, shall not approve such Construction Documents, until the City’s issues and/or concerns have been resolved to the City’s satisfaction.

(iii) At its discretion, the City may elect to:

Attend all design meetings held in connection with the Project, in which instance Grantee shall provide the City with prior written notice of the date, time and location of all design meetings; and/or

Limit its review of Design Documents to those pertaining to the City-Funded Work.

C. Material Change

During the performance of the Agreement, Grantee shall not make a Material Change to the Project until Grantee has reviewed such change with the City and has been advised in writing that the City has no objection to such change. In addition, all changes to the City-Funded Work (Material Changes and non- Material Changes) are subject to the provisions of Paragraph 11(A)(iii). For purposes of this Agreement, a “Material Change” constitutes a change that may

(i) significantly alter the manner in which Grantee uses the Premises; (ii) adversely affect Grantee’s ability to comply with the terms of the PPA, if applicable; or (iii) result in the Grant not being used for Eligible Project Costs.

Non-Material Changes made to the non-City-Funded Work shall not require the City’s prior review. However, to the extent indicated in Paragraph 10(A) of this Agreement, Grantee shall provide the City with information about changes in the Project in its Quarterly Progress Report.

Paragraph 6. Insurance; Risk of Operations and Indemnification; Bonding

A. Insurance

At all times during the Term of this Agreement, Grantee shall maintain, and shall cause all Construction Contractors and Consultants performing work on the Project to maintain, insurance in accordance with the terms set forth in Exhibit C of this Agreement, attached hereto and incorporated herein.

B. Risk of Operations and Indemnification

At all times during the Term of this Agreement, Grantee shall assume the risk of operations and indemnify the City in accordance with Section II of Exhibit C, and shall cause all Construction Contractors and Consultants who or which are required to obtain insurance under this Agreement to assume the risk of operations and provide indemnification in accordance with the requirements contained in Section 2 of Exhibit B of this Agreement, attached hereto and incorporated herein.

C. Bonding

(i) Except as otherwise provided in subparagraph (ii) below, in every City- Funded Construction Contract in a contract amount equal to or greater than $500,000, the entity awarding the contract shall require such contractor to obtain performance and payment bonds, each in an amount not less than the amount of such contract. Each such required bond shall be obtained by that contractor, shall be in effect on or before the commencement of performance under the relevant contract, and shall remain in effect until the completion and final acceptance of such contractor’s work under such contract. The bonds required pursuant to this Paragraph 6(C) shall be issued by such surety or sureties as are licensed to issue such bonds in the State of New York and are approved by the City, and shall identify both the entity awarding the contract and the City as co-obligees. The performance and payment bonds required hereunder shall be on forms required by the City as specified in the Guidelines, including a special form of performance bond for City-Funded Construction Contracts that do not exceed $5 million, which form has been approved by the U.S. Small Business Administration for participation in its bond guarantee program.

(ii) Grantee may apply to the City for a waiver of the bonding requirements of Paragraph 6(C)(i) if Grantee demonstrates that neither the City, the State of New York, any public benefit corporation or any commission appointed pursuant to law has an ownership interest in all or part of Grantee’s Premises. At its discretion, the City may grant such waiver to the extent consistent with applicable law.

(iii) In the event that a City-Funded Construction Contractor is not required to provide a payment bond based on the contract amount being less than $500,000, the City shall, in accordance with the terms of Exhibit D of this Agreement (attached hereto and incorporated herein), guarantee payment as provided therein. In the event that a City-Funded Construction Contractor is not required to provide a payment bond based on a waiver granted to the Grantee, the defense and indemnification requirements of Paragraph 6(C)(iv) shall apply and the terms of Exhibit D of this Agreement shall not be applicable.

(iv) In the event that the Grantee has obtained a waiver pursuant to Paragraph 6(C)(ii), the Grantee and its contractors shall defend, indemnify and hold harmless the City, its employees and agents, against any and all claims for labor performed and/or services rendered and for materials, equipment and supplies provided (whether incorporated into the Work or not) by any person, firm or corporation which furnished labor, material, equipment supplies, or any combination thereof, in connection with the Work. Such defense and indemnification shall be consistent with the requirements set forth in Paragraph 6(B).

Paragraph 7. Compliance with Applicable Law; NYC Appendix

A. Grantee shall comply with all local, state and federal laws, rules, regulations and Mayoral Executive Orders now in force or which may later be adopted (“Legal Requirements”), as such Legal Requirements may be applicable to the Project. As part of such compliance, Grantee shall:

(i) obtain, at its own expense, all Required Approvals;

(ii) ensure that any architect or engineer hired to perform Work is registered in the State of New York;

(iii) pay prevailing wages as such rates are established pursuant to Section 220(3) of the Labor Law of the State of New York;

(iv) comply with the requirements of Local Laws 77 of 2003 (Ultra Low Sulfur Diesel Fuel), 38 of 2002 (Living Wage), 118, 119, 120 and 121 of 2005 (Environmentally Preferable Purchasing) and 86 of 2005 (Green Building Standards Law);

(v) comply with the applicable provisions of the New York City Noise Control Code (Administrative Code §24-216 et seq., as amended, and related regulations);

(vi) comply with Labor Law Section 220-e and any regulations promulgated thereunder; and

(vii) comply with the equal employment and non-discrimination requirements of Executive Order No. 50 (“E.O.50”) and any regulations promulgated thereunder, as set forth in Section 4 of the NYC Appendix attached hereto and made a part hereof, including the submission of Employment Reports as may be required by E.O.50.

B. The City shall cooperate with Grantee and furnish such information and complete any applications that may be requested by Grantee for the purpose of enabling Grantee to comply with the requirements of Paragraph 7(A).

C. This Agreement is subject to and incorporates those provisions attached as the NYC Appendix.

Paragraph 8. Bidding, VENDEX and Contract Requirements

A. (1) Bidding and Award of Contracts

(a) This Paragraph 8(A)(1) shall be applicable to all: (i) City-Funded First Tier Contracts; and (ii) City-Funded Second Tier Construction Contracts entered into with a First Tier Consultant (whether or not the First Tier Consultant was City- Funded).

(b) Unless otherwise waived by the City, each contract to which this Paragraph 8(A)(1) applies shall be entered into on the following basis:

Issuance of a written bid package or request for proposals that incorporates the relevant contract requirements set forth in Paragraph 8(B); and

Receipt of written bids or proposals that are responsive from at least three (3) bidders/proposers who have the requisite experience necessary to perform the work being bid or proposed; provided, however, that if it is not possible to obtain three (3) bids/proposals, the entity conducting the solicitation shall provide to the City a written explanation of the failure to meet such requirement, and the City, in its discretion, may waive such requirement.

(c) The awarding entity shall award each contract to which this Paragraph 8(A)(1) applies to the responsive and responsible bidder/proposer whose bid or proposal represents the most advantageous combination of price and technical merit. The awarding entity shall provide the City with a summary of the bids/proposals (“Bid Summary”) that provides the following information:

Description of the work or services to be performed;

Description of the manner in which such contract was bid;

The name of each bidder/proposer submitting a bid or proposal;

If the bid/proposal is non-responsive, a description of the basis upon which that determination was made;

If the bidder/proposer is non-responsible, a description of the basis upon which that determination was made;

The amount of each bid or proposal;

The criteria to be used in selecting the winning bidder/proposer;

The justification for selecting the proposed contractor or consultant; and

Status of bidder’s/proposer’s VENDEX submission, if required.

(d) No payments shall be made to Grantee in connection with any contract to which this Paragraph 8(A)(1) applies until the City has received the relevant Bid Summary and determined that such contract was entered into in accordance with the procedures described in this Paragraph 8(A)(1).

(2) VENDEX Requirements

(a) This Paragraph 8(A)(2) shall be applicable to all: (i) City-Funded First Tier Contracts; (ii) City-Funded Second Tier Contracts; and (iii) City-Funded subcontracts of Second Tier Contractors provided that the First Tier Contract was not City-Funded.

(b) For each proposed contract of $100,000 or more to which this Paragraph 8(A)(2) applies, the entity awarding the contract shall not award such contract until the relevant contractor shall have submitted completed VENDEX forms and received VENDEX approval from DDC. In each instance, the entity awarding the contract shall notify DDC as soon as the relevant contractor has submitted its completed VENDEX forms to the Mayor’s Office of Contract Services.

B. Contract Requirements

(i) Insurance. With regard to each Construction Contract and each Consultant Contract for the performance of work on the Project, such contract shall be subject to and shall incorporate the relevant terms and conditions of this Agreement including, but not limited to, the contract requirements contained in Exhibit B, Section 1 of this Agreement.

(ii) Risk of Operations and Indemnification. With regard to each Construction Contract and each Consultant Contract for the performance of work on the Project, such contract shall be subject to and shall incorporate the relevant terms and conditions of this Agreement including, but not limited to, the contract requirements contained in Exhibit B, Section 2 of this Agreement.

(iii) Bonding. With regard to each City-Funded Construction Contract, such contract shall be subject to and shall incorporate the relevant terms and conditions of this Agreement including, but not limited to, the contract requirements contained in Exhibit B, Section 3 of this Agreement.

(iv) Legal Requirements. With regard to each City-Funded Construction Contract and City-Funded Consultant Contract, such contract shall be subject to and shall incorporate the relevant terms and conditions of this Agreement including, but not limited to, the contract requirements contained in Exhibit B, Section 4 of this Agreement.

(v) Assignment of Contract to City. With regard to each City-Funded Construction Contract and City-Funded Consultant Contract to perform Work involving facilities owned by the City, such contract shall be subject to and shall incorporate the contract requirement contained in Exhibit B, Section 5 of this Agreement.

(vi) Independent Entity. With regard to each City-Funded Construction Contract and City-Funded Consultant Contract, such contract shall be subject to and shall incorporate the contract requirement contained in Exhibit B, Section 6 of this Agreement.

(vii) Minority and Women-owned Business Enterprise Requirements. With regard to each Construction Contract and each Consultant Contract where the Construction Contractor or the Consultant will award City-Funded subcontract(s), such Construction Contract or Consultant Contract shall be subject to and shall incorporate the relevant terms and conditions of this Agreement including, but not limited to, the contract requirements contained in Exhibit B, Section 7 of this Agreement.

(viii) Executive Order No. 50. The equal employment and non-discrimination requirements of E.O.50, including the submission of Employment Reports as may be required, shall apply to each Construction Contract and Consultant Contract as provided in Exhibit B, Section 8 of this Agreement .

Paragraph 9. Minority and Women-owned Business Enterprise Requirements

A. This Agreement is subject to the following requirements pertaining to minority-owned business enterprises (“MBEs”) and women-owned business enterprises (“WBEs”) (collectively, “M/WBEs”) certified as such by the New York City Department of Small Business Services (“DSBS”). The Grantee shall require all Construction Contractors and Consultants to make all reasonable, good faith efforts to award City-Funded subcontracts for construction and for professional services, where the amount of such a subcontract is under one million dollars ($1,000,000), to M/WBEs as necessary to meet the Participation Goals as provided in subparagraphs B and C below.

B. The M/WBE participation goals established for this Agreement are thirty-one percent (31%) for construction MBEs and thirty percent (30%) for professional services M/WBEs (“Participation Goals”), in accordance with the percentages set forth in subparagraph C below. The Participation Goals are met by: (i) awarding to MBEs thirty-one percent (31%) of the total aggregate dollar value of all City-Funded subcontracts for construction awarded by Construction Contractors and Consultants where the amount of each subcontract is under one million dollars ($1,000,000), in accordance with the percentages set forth in subparagraph C below; and (ii) awarding to M/WBEs thirty percent (30%) of the total aggregate dollar value of all City-Funded subcontracts for professional services awarded by Construction Contractors and Consultants where the amount of each subcontract is under one million dollars ($1,000,000), in accordance with the percentages set forth in subparagraph C below.

The M/WBE requirements of this Paragraph 9 shall not apply to: (x) City-Funded subcontracts that have been awarded prior to the Effective Date of this Agreement (and such subcontracts shall not count toward computing total aggregate dollar value); or (y) any City-Funded subcontract in an amount of one million dollars ($1,000,000) or more.

C. (i) For construction subcontracts, Participation Goals are: African-

American--12.63%, Asian-American--9.47%, and Hispanic-American— 9.06% (no goal has been established for Caucasian Female firms); and

(ii) For professional services subcontracts, Participation Goals are:

African-American—9%, Hispanic-American—5%, and Caucasian Female—16.5% (no goal has been established for Asian-American firms).

Notwithstanding the foregoing, if there only are a small number of subcontracting opportunities to which the Participation Goals apply, such that it is not practicable to achieve the breakdown set forth above, the Participation Goal of 31% for construction subcontracts may be met by using African-American, Hispanic- American or Asian-American firms or any combination of such firms, and the Participation Goal of 30% for professional services subcontracts may be met by using African-American, Hispanic-American or Caucasian Female firms or any combination of such firms.

D. Grantee, Construction Contractor(s), and Consultant(s) may obtain a list of M/WBE firms and certification information from DSBS either via its website at www.nyc.gov/getcertified or by telephone at (212) 513-6311. If Grantee, Construction Contractor(s) or Consultant(s) become aware of a firm that may be eligible for such certification, but has not yet become certified, Grantee, Construction Contractor(s) and Consultant(s) may contact DSBS for assistance in having such firm receive certification. In such instance, Grantee, Construction Contractor(s) and Consultant(s) may cite participation by such newly certified M/WBE firm towards the achievement of the Participation Goals.

E. So as to enable the City to track Grantee’s compliance with the Participation Goals, Grantee shall submit to the City an M/WBE Participation Goal and Status Report (“M/WBE Status Report”) in the format specified in the Guidelines. The first such report shall be submitted on the date agreed to at the Project Commencement Meeting. Thereafter, an updated M/WBE Status Report shall be submitted by Grantee as part of each subsequent Quarterly Progress Report.

F. If after a reasonable, good faith effort, Grantee will not be able to achieve the Participation Goal(s), Grantee may seek an adjustment during the Agreement Term by submitting to the City a Request for Adjustment of M/WBE Participation Goal Form specifying the efforts made to achieve the Participation Goal(s) and the reasons an adjustment is being requested. Grantee’s failure to meet the Participation Goal(s) without obtaining an adjustment of the Participation Goal(s) will be treated as a failure to comply with a term and condition of this Agreement, which failure gives rise to the City’s right to terminate this Agreement as provided in Paragraph 15(A)(ii) of this Agreement and to exercise remedies as provided in Paragraph 16 of this Agreement.

Paragraph 10. Submission of Reports

A. Quarterly Progress Report

During the Term, Grantee shall submit a quarterly progress report (the “Quarterly Progress Report”) covering activities during the preceding three calendar months, such Quarterly Progress Reports to be submitted on the dates agreed to at the Project Commencement Meeting. The Quarterly Progress Report shall be based on a format to be provided by the City and shall include the following:

Updated Project Schedule;

Project directory of all Design Consultants and Construction Contractors for the City-Funded Work, including contact information (in subsequent updates, changes should be highlighted);

Progress photos of the City-Funded Work since the last Quarterly Progress Report;

Updated Project Budget, including narrative which explains any significant deviations from the previous budget;

Updated change order log, including summary sheet;

Updates on bidding and award of contracts for the City-Funded Work;

Updated M/WBE Status Report;

Status of Required Approvals for the City-Funded Work;

Itemization of all costs paid to Design Consultants and Construction Contractors for the Project, including non-City-Funded Work;

Both for the City-Funded Work and the entire Project, a narrative summarizing work accomplished the previous quarter, any Significant Milestones achieved, and any problems that have occurred; and

Projection of Work to be accomplished during the three month period following the quarter being reported on, both for the City-Funded Work and the entire Project, and an itemization by contract of costs to be paid in connection with such Work.

B. Close-out Report

A close-out report (the “Close-out Report”) shall be submitted along with the Final Payment Request, and shall include the following:

Final accounting of (i) all amounts still owed by the City, and (ii) if requested by the City, all costs incurred in connection with the entire Project;

Certification by the Architect and Construction Manager that all of the City- Funded Work, including the Final Punch List, has been completed in substantial conformity with the Construction Documents;

At the discretion of the City, certification by the Architect and the Construction Manager that the Project as a whole has been Substantially Completed;

As-built drawings for the Project in a format to be specified by the City; and

Grantee’s release to the City as provided in Paragraph 11(C) of this Agreement.

Paragraph 11. Monthly Payment; Retainage; Final Payment

A. Monthly Payment

(i) The Grant shall be paid out in the form of monthly payments, with each monthly payment reflecting Eligible Project Costs incurred by Grantee in connection with the City-Funded Work during the month for which payment is requested, but not including any Substantial Completion or Punch List Retainage that may be withheld by the City as set forth in Paragraph 11(B). Payments by the City shall be made solely (a) for Eligible Project Costs, and (b) on a reimbursement basis reflecting Grantee’s actual paid expenditures without mark-up or interest charges of any kind.

(ii) Each monthly payment shall be made by the City on the basis of a payment request by Grantee to be submitted in a format to be provided by the City on the dates specified at the Project Commencement Meeting (each, a “Monthly Payment Request”). For each quarter in which a Quarterly Progress Report is due, the Monthly Payment Request shall be accompanied by the relevant Quarterly Progress Report. Among other items, the Monthly Payment Request shall contain, at a minimum:

A certification by the Architect or Construction Manager of Eligible Project

Costs incurred by the Grantee in connection with the City-Funded Work during the relevant month;

The information specified in subparagraph (iv) below; and

Supporting invoices and such other evidence as the City may reasonably request demonstrating that Grantee has already paid those costs for which it seeks reimbursement from the City.

(iii) No payment will be made by the City for changes to the City-Funded Scope of Work (Material Changes and non-Material Changes) unless (a) to the extent required by Paragraph 5(C), the City has stated in writing that it has no objection to such change, and (b) the Work for which Grantee requests payment in connection with such change meets the definition of Eligible Project Costs.

Notwithstanding the foregoing:

(a) the City shall not make payment for any construction item that is not identified as a City-Funded construction item in the City-Funded Scope of Work unless Grantee has previously requested that the Grant be used to pay for such substitute construction item and the City has given its written consent to such re-allocation of the Grant; and

(b) the total amount of City funds paid to Grantee under this Agreement will not exceed the amount of the Grant stated in Paragraph 2(A).

(iv) The Monthly Payment Request for Work completed by Construction Contractors and Consultants of Grantee (collectively referred to as “Contractors” for purposes of this subparagraph (iv)) for which expenditures have already been paid out by Grantee shall include the following information:

Contractor’s name;

Value of Contractor’s contract with Grantee;

Total amount previously paid to the Contractor for work already performed and requisitioned;

Date(s) and amount(s) of each previous payment by Grantee to Contractor;

Evidence satisfactory to the City that the work covered by such payment request was actually performed and prevailing wages paid in accordance with law; and

The amount, including retainage, which has been paid by the Grantee to the Contractor for work included in the payment request.

B. Retainage

(i) The City will withhold a retainage prior to Substantial Completion (“Substantial Completion Retainage”) in an amount equal to five percent (5%) of the dollar amount being requested, or such lesser percentage as the City may determine will best assure the City of the completion of the entire Project.

(ii) Following the development of the Final Punch List in accordance with Paragraph 12(A), Grantee may, as part of its next Monthly Payment Request, request payment of an amount equal to the Substantial Completion Retainage, less an amount equal to twice the value of the Final Punch List (“Punch List Retainage”). Upon approval of such payment request, but subject to the terms of Paragraph 11(B)(iii), the City shall pay such amount in addition to such other sums as may be covered by such payment request.

(iii) Notwithstanding the foregoing, the City, in its discretion, may elect to retain all or a portion of the Substantial Completion Retainage and/or the Punch List Retainage until such time as the City is assured of the completion of the entire Project.

C. Final Payment

Following the Punch List Completion Date (as defined in Paragraph 12(B)), Grantee may submit its final payment request and Close-out Report. Upon approval of such submission, the City shall make payment (“Final Payment”) to Grantee of all amounts remaining to be paid under the Agreement, including the Punch List Retainage and any other sums withheld by the City pending completion of the entire Project. Acceptance of the Final Payment by Grantee shall constitute and operate as a release to the City from any and all claims of and liability to Grantee relating to work done or material furnished by the Grantee or its Construction Contractors, Consultants, or suppliers pursuant to this Agreement, and claims for delay for, or relating to, or arising out of this Agreement and the Work done hereunder, and for any prior act, neglect or default on the part of the City or any of its officers, agents or employees which are known by Grantee, excepting only a claim against the City for the amounts deducted or retained in accordance with the terms and provisions of this Agreement or by law, including any claim relating to sales tax, and excepting a claim, not otherwise waived, which is contained in Grantee’s Final Payment Request.

Paragraph 12. Substantial Completion of City-Funded Work; Punch List

Completion Date

A. Substantial Completion of City-Funded Work

When the City-Funded Work has been Substantially Completed, Grantee shall notify the City in writing and shall provide a Certificate of Substantial Completion of such Work by the Architect. Upon receipt of the Certificate of Substantial Completion, the City shall inspect the City-Funded Work in question with Grantee. On such date as the City concurs in the Architect’s finding of Substantial Completion (“Substantial Completion Date”), the City may then elect to jointly develop with the Grantee the list of items necessary to complete the

City-Funded Work (each, a “Final Punch List Item”, collectively, the “Final Punch List”), including a date for the completion of each Final Punch List Item and its estimated cost.

B. Punch List Completion Date

Following completion of the Final Punch List Items, Grantee shall provide written notice to the City and request final inspection of the City-Funded Work by the City. If such inspection determines that all Final Punch List Items are complete, Grantee may submit its Final Payment request in accordance with Paragraph 11(C). If such inspection reveals Final Punch List Items still to be performed, Grantee shall oversee the completion of such items and shall then request a reinspection. If upon such reinspection, any Final Punch List Item is still not complete, this procedure shall be repeated until such time as the City determines that all Final Punch List Items have been completed (“Punch List Completion Date”), at which time Grantee may submit its Final Payment request in accordance with Paragraph 11(C).

Paragraph 13. City’s Right to Inspect and Attend Construction Meetings

During the progress of the Work and through the Punch List Completion Date, Grantee shall provide the City with the opportunity to inspect all Work being performed and all completed Work. The City may at any time, with or without notice, enter the Premises and inspect the Work. The City may also elect to attend any design and construction meetings held in connection with the Project.

The Grantee shall provide the City with prior written notice of the date, time and location of all design and construction meetings.

Paragraph 14. Performance Evaluation

The City shall evaluate Grantee’s performance of this Agreement on or after the first anniversary of the Effective Date and annually thereafter; provided, however, that if the Punch List Completion Date occurs before the first anniversary of the Effective Date, the City shall evaluate Grantee’s performance upon completion of the Final Punch List. A copy of such performance evaluation will be sent to the Grantee after completion of the performance evaluation. Grantee may respond in writing to the performance evaluation, provided that such response is submitted to the City not later than fifteen (15) calendar days after the performance evaluation is sent to the Grantee. The performance evaluation, together with Grantee’s response if such response is submitted on a timely basis, will be entered into VENDEX.

Paragraph 15. Termination

A. The City shall have the right to terminate this Agreement, in whole or in part:

(i) Under any termination right as specified in any other section of this Agreement;

(ii) Upon the failure of Grantee to comply with any of the terms and conditions of this Agreement, provided such failure continues for fifteen (15) business days or more after written notice to Grantee by the City specifying such failure (unless such failure requires work to be performed, acts to be done, or conditions to be removed which cannot, by their nature, reasonably be performed, done or removed within such fifteen (15) business day period, in which case the City, in its sole discretion, may allow Grantee additional reasonable time to cure such failure, so long as Grantee shall commence the requisite performance or observance within such fifteen (15) business day period and shall diligently and continuously prosecute the same to completion within a reasonable period);

(iii) Upon the failure of Grantee to comply with any term, covenant or condition on its part to be performed or observed under the PPA;

(iv) Upon Grantee's becoming insolvent;

(v) Upon the commencement under the Bankruptcy Act of any proceeding by or against Grantee, either voluntarily or involuntarily;

(vi) Upon the Commissioner's determination that termination is in the best interest of the City; or

(vii) Should City funds that are appropriated or allocated for the payment of the Grant become unavailable.

B. The City shall give Grantee ten (10) business days' written notice stating its intent to terminate this Agreement and specifying the effective termination date (“Termination Date”), whereupon on such date this Agreement shall be terminated. Notwithstanding the foregoing, upon the occurrence of any event specified in Paragraph 15(A)(iv) or (v), the City may elect to terminate this Agreement immediately upon notice to Grantee to the extent permitted by law.

C. Upon receipt of the notice of termination, Grantee shall not incur or pay any further expenses or obligations after the Termination Date for which it expects reimbursement by the City under this Agreement.

D. Within thirty (30) days of the Termination Date, Grantee shall:

(i) Account for any funds which have been paid to Grantee under this Agreement; and

(ii) Provide the City with an inventory of all equipment or other property purchased through or provided under this Agreement and thereafter dispose of such equipment or property in the manner directed by the City.

E. In the event of termination, Grantee shall receive equitable compensation for the performance of City-Funded Work that, in the judgment of the City, has been satisfactorily performed by Grantee up to the Termination Date. Such compensation shall be fixed by the City and subject to audit by the Comptroller.

However, Grantee's right to equitable compensation shall be contingent upon full compliance with all of Grantee's obligations required to be performed under this Agreement prior to the Termination Date.

Paragraph 16. Certain Remedies

A. Upon the occurrence of any event as specified in Paragraph 15(A)(ii), the City may exercise any right or remedy permitted to it by law, in equity, or under this Agreement, including, without limitation, demanding repayment of any portion of the Grant that was used in violation of any provision of this Agreement, such amount to become immediately due and payable without further notice.

B. If Grantee fails to perform any term, covenant or condition on its part to be performed or observed under the PPA, the City may, in its sole and absolute discretion, exercise any rights available to the City under the PPA, at law or equity.

The provisions of this Paragraph 16 shall survive the expiration or termination of this Agreement.

Paragraph 17. Definitions

“Affiliate” means (a) any Person that is a principal of Grantee by virtue of his/her/its membership in Grantee’s governing body or participation in the management and/or operation of Grantee, (b) any Person that controls, is controlled by, or is under common control with, Grantee, and (c) any individual who is a member of the immediate family (whether by birth or marriage) of an individual who is an Affiliate, which includes for purposes of this definition a spouse, a brother or sister of such individual or his spouse, a lineal descendant or ancestor of any of the foregoing, or a trust for the benefit of any of the foregoing.

“Architect” means the person(s) or firm(s) selected by Grantee to serve as the lead architect for the Project.

“Bid Summary” is defined in Paragraph 8(A)(1)(c).

“Board Resolution” is defined in Paragraph 1(B).

“City-Funded” means funded, in whole or in part, with monies from the City.

“City-Funded Work” means that Work designated as such in the Project Narrative and Project Spreadsheet set forth in Exhibit A.

“City-Funded Scope of Work” means those scope items identified as “City- Funded Work” in the Exhibit A Narrative and the Project Spreadsheet.

“Close-out Report” is defined in Paragraph 10(B).

“Construction Contract” means any construction contract entered into for the purpose of furnishing for compensation, labor, materials and/or equipment for the Project.

“Construction Contractor” means any person, firm or corporation, excluding employees of Grantee, who or which contracts to furnish, or actually furnishes for compensation, labor, materials and/or equipment for the Project.

“Construction Documents” means the final stage of design documents, i.e., those plans and specifications on which bid documents for the Project are based.

“Construction Manager” means any Consultant performing construction management services.

“Consultant” means any person, firm or corporation, excluding employees of Grantee, who or which contracts to furnish, or actually furnishes for compensation, consultant services for the Project. “Consultant” includes, but is not limited to, an Architect and Construction Manager.

“Consultant Contract” means any Consultant Contract entered into for the purpose of furnishing for compensation consultant services for the Project.

“Design Consultant” means the Architect and all other consultants engaged by the Grantee in connection with the design of the Project.

“Design Documents” mean the drawings, specifications and other documents prepared by the Design Consultants in connection with the design of the Project.

“DSBS” means the New York City Department of Small Business Services.

“Effective Date” is defined in Paragraph 3.

"Eligible Project Costs" means costs and expenses incurred by Grantee for services and materials in connection with the City-Funded Work after the date of the appropriation of the capital funds, provided that such costs and expenses, in the sole discretion of the City: (a) provide for the construction, reconstruction, acquisition or installation of a physical public betterment or improvement which would be classified as a capital asset under generally accepted accounting principles for municipalities, (b) are financeable by the City with the proceeds of tax exempt bonds pursuant to Section 11.00.a of the New York State Local Finance Law, (c) are financeable by the City with tax exempt bonds pursuant to the Internal Revenue Code of 1986, as amended, and (d) are eligible for capital financing pursuant to the directives by the City Comptroller and any other applicable rules or regulations. Subject to the terms, covenants and conditions hereof, Eligible Project Costs shall not include the cost of a general contractor engaged to manage construction work, if Grantee also utilizes a construction manager, and shall not include any return on equity invested in the Project by Grantee, any fee to Grantee or any Affiliate or any of its employees, any interest or fee in connection with any loan used to pay any costs of the Project, any overhead of Grantee or the salary or expenses related to any officer or employee of Grantee or any Affiliate.

Notwithstanding any provision to the contrary contained in this Agreement, Eligible Project Costs paid or incurred by Grantee with respect to any Person that is an Affiliate performing labor or services at or supplying materials in connection with the Project shall be subject to reimbursement under this Agreement only to the extent that such costs do not exceed an amount (to be determined by the City in its sole discretion) which would have been paid by Grantee to an unrelated party in an arms length transaction.

“Exhibit A Narrative” means the narrative identified as such in Exhibit A.

“First Tier Construction Contract” means any Construction Contract entered into directly with the Grantee.

“First Tier Construction Contractor” means any Construction Contractor who or which enters into a First Tier Construction Contract with the Grantee.

“First Tier Consultant Contract” means any Consultant Contract entered into directly with the Grantee.

“First Tier Consultant” means any Consultant who or which enters into a First Tier Consultant Contract with the Grantee.

“First Tier Contract” means any First Tier Construction Contract or First Tier Consultant Contract.

“First Tier Contractor” means any First Tier Construction Contractor or First Tier Consultant.

“Final Punch List Item” is defined in Paragraph 12(A).

“Final Punch List” is defined in Paragraph 12(A).

“Grant” is defined in Paragraph 2(A).

“Guidelines” means those guidelines as defined in Paragraph 5(A).

“Legal Requirements” is defined in Paragraph 7(A).

“Material Change” is defined in Paragraph 5(C).

“Monthly Payment Request” is defined in Paragraph 11(A)(ii).

“MBE” is defined in Paragraph 9(A).

“M/WBE” is defined in Paragraph 9(A).

“M/WBE Status Report” is defined in Paragraph 9(E).

“Participation Goal(s)” is defined in Paragraph 9(B).

"Person" means an individual,…