BASIC AGREEMENT BETWEEN EAST TENNESSEE MATERIALS AND ENERGY CORPORATION AND BECHTEL JACOBS COMPANY, LLC. BASIC AGREEMENT NUMBER 23900-BA-99446F September 30, 2005
EXHIBIT
10.1
BASIC
AGREEMENT BETWEEN
EAST
TENNESSEE MATERIALS AND ENERGY CORPORATION
AND
XXXXXXX
XXXXXX COMPANY, LLC.
BASIC
AGREEMENT NUMBER
23900-BA-99446F
September
30, 2005
This
Basic Agreement (BA) between East Tennessee Materials and Energy Corporation
(hereinafter "Seller") and Xxxxxxx Xxxxxx Company, LLC (hereinafter "Company")
on its behalf, acting under its Prime Contract Number DE-AC05-98OR22700 with
the
United States Department of Energy (DOE), is entered into to provide services
to
the DOE Management and Operating Contractors, Management and Integration
Contractors, and designated affiliates in accordance with the
following:
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1.
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This
Agreement is on behalf of the Department of Energy and those contractors
and designated affiliates named in Attachment
A.
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2.
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The
pricing for each line item of mixed waste covered under this Agreement
is
in accordance with Attachment B. The waste disposal calculation
shall be
in accordance with Attachment B and transportation shall be in
accordance
with Attachment B.
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3.
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The
ordering provisions are contained in Attachment
C.
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4.
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Basic
Ordering Agreement General Terms and Conditions for Commercial
Items DOE
Contractors (09/98) are included in Attachment D and made a part
herein.
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5.
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Agreement
is contingent on completion of the National Environmental Policy
Act
(NEPA) within two years from date of Award. If the NEPA requirements
have
not been completed within two years, the Agreement may be terminated,
at
no cost to the Company or Government, or an extension of required
schedules may be negotiated at the discretion of the Company or
Government. The Seller shall support the DOE in completion of the
NEPA
requirement.
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6.
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Any
news release, public announcement, advertisement or publicity proposed
to
be released by either party concerning the existence of this Agreement,
its terms or conditions or the activities of either party in connection
with the resulting Agreement shall be subject to the approval of
both
parties prior to release.
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The
parties agree that any entity having a prime contract with the DOE awarded
pursuant to Federal Acquisition Regulations (FAR) Subpart 17.6 and Department
of
Energy Acquisition Regulation (DEAR) Subpart 917.60 (collectively hereinafter
called "Contractor") may place orders under this Agreement and receive the
appropriate discounted prices. In addition, these discounted prices shall
be
available to any entity having a subcontract under such a prime contract
and
such subcontractors may also place orders under this Agreement and receive
the
appropriate discounted prices.
Each
Contractor shall place its own orders under this Agreement and shall be
direct-billed accordingly. Contractors’ may jointly place orders, or a series of
individual orders, to secure the most favorable price. The Company, Contractor,
and DOE reserve the right to assign raw waste to the appropriate category
and
resulting treatment Agreement and reserves the right to order treatment under
the most favorable price.
ARTICLE
I - DEFINITIONS
The
following special definitions are provided for this Agreement:
Agreement
Administrator - The person with the authority to enter into Agreements who
is
assigned as responsible for this Agreement as a whole and who is specified
in
Article VII - Administration.
Order
Administrator - The person with the authority to enter into Agreements who
is
assigned as responsible for the specific Order issued under this Agreement
and
who is specified in the Order.
Disposal
Facility - The Department of Energy disposal facility under contract at the
time
of disposal.
Residue
-
Matter remaining after completion of any abstractive chemical or physical
process, such as evaporation, combustion, distillation, or filtration.
Reactive
Waste
- Substance,
material or waste that reacts in the presence of air or water to release
hydrogen gas and heat at a rate that when not controlled (through some means
such as inerted atmosphere) usually results in fires, possibly small explosions,
and a caustic solution. Included in this category would be the alkaline metals
found in Group IA of the periodic chart. Metal powders and pyrophoric metals
are
not necessarily Reactive Waste. For purposes of this subcontract, cyanide
and
sulfide bearing waste in accordance with 40 CFR 261.23 are not included as
reactive waste. These are not amenable to the same treatment process and
are
priced under other appropriate labpack categories.
Any
reference to Lockheed Xxxxxx Energy Systems, Inc., shall be interpreted as
Xxxxxxx Xxxxxx Company, LLC., in any document made a part of this Agreement.
ARTICLE
II - SCOPE OF WORK
All
orders placed hereunder shall reference the number of this BA (23900-BA-99446F).
The term of this BA is extended for one years from June
22, 2005 through September 30, 2007.
The
Company has the option of extending this Agreement annually, after the initial
term has expired, based on the Company’s analysis of the Seller’s performance
and cost/pricing history.
The
Seller agrees to treat mixed waste in quantities described herein as any
Contractor may order during the term of this Agreement. The Seller's obligation
to each Contractor shall become effective upon acceptance of particular orders
issued under this Agreement. The Agreement Administrator shall be furnished
a
copy of each order placed under this Agreement. In the event the Seller rejects
an order, for any reason, the Agreement Administrator shall be notified in
writing within five days of such rejection by the Seller stating the reason
for
rejection. Three rejections of orders by the Seller, for any reason other
than
non-conforming materials, shall be sufficient grounds for termination of
this
Agreement. The Company, Contractors, and DOE reserve the right to classify
raw
waste by category and to assign the treatment of raw waste among the categories
covered by the Statement of Work dated December 8, 1997 and made a part
hereof.
ARTICLE
III - DELIVERY OR PERFORMANCE
(a) Delivery
or performance shall be made only as authorized by orders issued in accordance
with the Ordering Provisions contained in Attachment C. The Seller shall
furnish
to the Company or the Contractor, when and if ordered, the supplies or services
specified in the order.
(b) There
is
no limit on the number of orders that may be issued.
(c) Any
order
issued during the effective period of this Agreement and not completed within
that period shall be completed by the Seller within the time specified in
the
order. The Agreement shall govern the Seller's and Contractor’s rights and
obligations with respect to that order to the same extent as if the order
were
completed during the Agreement's effective period.
(d) Disposal
of treated waste shall be under the existing DOE contract for waste disposal
in
effect at the time of disposal. The DOE contract will govern demurrage and
other
administrative matters. For process residue from labpack waste streams only,
M&EC is authorized to dispose of such residue at regulatory approved
disposal sites.
(e)
The
Seller is not obligated to accept any individual order less than 6,000kg
of mass
weight of raw waste.
ARTICLE
IV - FUNDING
Funding
will only be authorized under individual orders issued under this Agreement.
There shall be no funding provided in the Basic Agreement. The level of
performance requested will depend entirely upon requirements of the Company
and
the DOE affiliates for the period of performance covered by the Agreement.
ARTICLE
V - FIRST ARTICLE TESTING
First
Article Testing will be authorized to commence only as a part of the first
order
issued under this Agreement and shall be at the same price per kg as the
production quantities to be treated in the first order. Treatment of production
quantities may not proceed until written authorization is granted by the
Company, DOE or Contractor based upon completion of a successful First Article
Test.
(a) The
first
article is (tbd
by vendor requirements)
(kg) of
each treatment category which shall be tested in accordance with the provisions
contained or referenced in this Agreement. At least 10 calendar days prior
to
the beginning of first article approval tests, the Seller shall furnish written
notice to the Company or Contractor of the time and location of the testing
so
that the Company or Contractor may witness such testing if it so
elects.
(b) Within
116 weeks from the date of this Agreement, the first article approval test
report shall be forwarded to the Agreement Administrator or his designee,
marked
"FIRST ARTICLE: Basic Agreement No. 23900-BA-99446F, Order No. _____." The
Company or the Contractor shall, by written notice to the Seller within 20
calendar days after receipt of such test report, approve, conditionally approve,
or disapprove such first article. The notice of approval or conditional approval
shall not relieve the Seller from complying with all requirements of the
specifications and all other provisions of this Agreement. A notice of
conditional approval shall state any further action required of the Seller.
A
notice of disapproval shall cite reasons therefor.
(c) If
the
first article is disapproved by the Company or the Contractor, the Seller
may be
required, at the option of the Company or the Contractor, to repeat any or
all
of the first article approval tests. After each notification by the Company
or
the Contractor of the requirement for additional tests, the Seller shall
at no
additional cost to the Company or the Contractor make any necessary changes,
modifications, or repairs required for another first article test. Thereafter,
the Seller shall perform the required additional approval tests and deliver
another report to the Company or the Contractor under the terms and conditions
and within the time specified by the Company or the Contractor. The Company
or
the Contractor shall take action on this report within the time limit specified
in (b) above. All costs related to additional approval tests shall be borne
by
the Seller.
(d) If
the
Seller fails to deliver any first article approval test report within the
time
or times specified, or if the Company or the Contractor disapproves any first
article, the Seller shall be deemed to have failed to make delivery within
the
meaning of the “Termination” clause of this Agreement, and this Agreement shall
be subject to termination.
(e) Where
the
approved first article is not consumed or destroyed in testing, and unless
otherwise provided in this Agreement, the first article may be delivered
as part
of the Agreement quantity if it meets all terms and conditions of the Agreement
for acceptance.
(f) In
the
event the Company or the Contractor does not approve, conditionally approve,
or
disapprove the first article within the time specified in (b) or (c) above,
the
Company shall, upon timely written request made by the Seller, make a
determination of the delay occasioned the Seller thereby, and shall equitably
adjust the delivery or performance dates, and any other contractual provision
affected by such delay, in accordance with the procedures provided in the
"Changes" clause.
(g) Until
first article approval is granted, no costs for the first article shall be
allocable to this Agreement for the purpose of termination settlements, if
this
Agreement is terminated for convenience.
(h) The
first
article test must be performed at the facilities in which the treatment is
to be
performed under the Agreement. A certification by the Seller to this effect
must
accompany each first article which is offered.
ARTICLE
VI- PAYMENT
Payment
terms - Net 30. For each shipment under a work release, 100% (one hundred
percent) of Transportation from Generator Site to Treatment Facility and
100%
(one hundred percent) of Handling will be invoiced upon receipt of shipping
manifest showing shipment has been accepted at the Treatment Facility. 100%
(one
hundred percent) of Transportation from Treatment Facility to Disposal Facility
will be invoiced upon receipt of shipping manifest showing shipment has been
accepted at the Disposal Facility. 33% (thirty three percent) of the Task
Order
Drum Equivalent along with the assumed TOC and Hg concentrations will be
invoiced upon receipt of the waste at the Treatment Facility which covers
the
profile review and approval, shipment receipt, waste sampling and analysis,
material preparation/movement, storage, process determination/procedures,
radiological surveys, Environmental Safety and Health reviews and Waste Tracking
and reporting (Quality Assurance). 52% (fifty two percent) will be invoiced
after processing and certification is provided with the submittal of the
invoice
that all treated waste meets the applicable LDR treatment standards. The
remaining 15% (fifteen percent) will be paid within 30 days of receipt of
the
Certificate of Disposal or other appropriate evidence of destruction.
LIQUID
WASTE ONLY:
Payment
Terms - Net 30. For Liquid Waste as defined in Attachment B, Category A Liquids.
Shipment under a work release; 50% (fifty percent) of estimated cost for
treatment and disposal upon receipt by Seller and the remaining 50% of the
treatment cost upon submitting a certificate of Disposal.
Pricing
for liquid waste streams are provided on a per gallon basis using the outside
volume of the container received for processing.
The
cost
associated with disposal of the treatment residues are included in the prices
for the Waste Stream.
ARTICLE
VII- FIXED PRICES
The
Company or Contractor shall be entitled to purchase services at the fixed
prices
identified in Attachment B . The prices identified in Attachment B are firm
for
the effective period of this Agreement, described in Article II - Scope of
Work.
ARTICLE
VIII - ADMINISTRATION
BA
Procurement Administrator address is as follows:
Xxxxxxx
Xxxxxx Company LLC
Attn:
Xxxxxxxx Xxx Xxxxxx
K-1007
Room 2313, XX0000 Xxx
00
Xxx
Xxxxx, Xxxxxxxxx 00000-0000
| Telephone: |
(000)
000-0000
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| Fax: |
(000)
000-0000
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| Email: |
xxx@xxxxxxxxxxxxx.xxx
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The
work
to be performed under this Agreement is subject to the monitoring of the
Agreement Administrator.
Notwithstanding
any of the other provisions of this Agreement, the Agreement Administrator
shall
be the only individual authorized to: (1) waive any requirement of this
Agreement or (2) modify any terms or conditions of this Agreement. The Ordering
Administrator shall be the only individual authorized to modify any terms
or
conditions of the Agreement only as they apply to a specific Order and waive
any
requirement of the Agreement only as it applies to a specific
Order.
The
Order
Administrator's
name,
address, and phone number shall appear on each Order issued under this
Agreement.
East
Tennessee Materials and Energy Corporation
Attn:
Xxx Xxxxxxxx
Telephone
(000) 000-0000
Fax:
(000) 000-0000
ARTICLE
IX - OTHER ITEMS
COMPLIANCE
WITH LAWS
All
permits, licenses, and government approvals of whatever nature relating to
the
performance of the work, any part thereof, or any things used in connection
therewith, will be obtained by the Seller at its own cost and expense, and
the
Seller will furnish copies of the same to the Company upon request. Failure
to
obtain and maintain current all permits, licenses, and government approvals
of
whatever nature relating to the performance of the work shall be grounds
for
termination of the Agreement at no cost to the Company or
Government.
Seller
will comply with all laws and ordinances and all pertinent lawful orders,
rules
and regulations relating to the work, to any activities, labor, equipment,
vehicles, containers, facilities, of disposal areas provided by Seller in
connection with the work, and to the preservation of the public health and
safety and environment. Seller will indemnify and hold harmless the Company,
the
DOE, and
the
Contractor against all fines, penalties, assessments, damages, and other
liabilities of whatever nature arising out of or resulting from Seller’s failure
to comply as set forth herein.
INDEMNIFICATION
Seller
agrees to indemnify, save harmless and defend the Company, the DOE, and the
Contractor from and against any and all liabilities, claims, penalties,
forfeitures, suits and the costs and expenses incident thereto (including
costs
of defense, settlement and reasonable attorneys' fees), which it may hereafter
incur, become responsible for or pay out as a result of death or bodily injuries
to any person, destruction or damage to any property, contamination of or
adverse effects on the environment, or any violation of governmental laws,
regulations or orders.
Seller
indemnifies and holds the Department of Energy (DOE), and Xxxxxxx Xxxxxx
Company
LLC and the present and future officers, directors, shareholders, employees
and
agents of these entities (hereinafter, these entities and individuals shall
be
referred to as “indemnified parties”) and the Contractor, harmless from “any and
all claims and liabilities” arising from the Seller’s (I) treatment, generation,
and management of waste, including any release or threat of release of the
waste
or constituents thereof resulting from the Seller’s management thereof; (ii) any
contamination of or adverse effects on the environment as a result of the
Seller’s management of the waste; and/or (iii) Seller’s breach of the terms of
this Agreement.
BASIC
Agreement 23900-BA-99446F
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The
phrase “any and all claims and liabilities” shall be understood in its most
comprehensive sense, which includes any and all claims, losses, damages,
fines,
costs, reasonable attorney fees, or other detriments, and, without limiting
the
foregoing, specifically includes all statutory or common law claims brought
against indemnified parties, Seller, and/or Seller’s Subcontractor(s), including
claims brought pursuant to sections 106, 107 or 113 of the Comprehensive
Environmental Response, Compensation and Liability Act, or sections 7002
and
7003 of the Resource Conservation and Recovery Act, and similar state and
local
environmental laws.
In
connection with the foregoing, Seller specifically waives and relinquishes
all
statutory or common law claims against the indemnified parties that Seller
may
otherwise have in connection with transfer to Seller of title and responsibility
for the material, including any claims arising under environmental laws,
claims
for property damage or bodily injuries, including death.
Notice
of Claim
With
respect to any claim for indemnification, the indemnified party (or parties)
making such claim shall give written notice of the claim within a reasonable
period following the event or occurrence and identify the basis of the
indemnification asserted, and allow Seller (including its employees, agents,
insurers and counsel) reasonable access to any of its employees, property
and
records for the purpose of conducting an investigation of such claim and
for the
purpose of obtaining statements, photographs, physical evidence and chemical
analyses and taking such other steps as may be necessary to preserve evidence
of
the occurrence on which the claim is based.
Preservation
of Rights Against Third Parties
In
the
event any third party, including any government agency, asserts any claim,
demand or cause of action arising out of the performance of this Agreement,
Seller and the Company agree to maintain their respective rights, as well
as for
their mutual benefit, any rights that each may have resulting from either
(I) an
action against, or (ii) a hold harmless or indemnification Agreement with
any
transporter, disposal site operator or any other party who may share
liability.
Survival
The
indemnity and waiver provisions in paragraph 2 shall survive the expiration
or
termination of this Agreement.
BASIC
Agreement 23900-BA-99446F
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TITLE
TO WASTE
Title
to
the raw waste and treated waste shall remain with the DOE. All raw waste
delivered under this Agreement shall be as described in the individual order
releases. The Company nor the Contractor shall have no right to recover any
material encountered in the raw waste nor any credit for its potential value
nor
any credit for any monies received for recycled material. Recycle material
becomes the property of the Seller.
TRANSPORTATION
The
Seller must provide Certification of Insurance which meets the requirements
of
the clause entitled Insurance
as
referenced below. Certification documents shall be forwarded to the Agreement
Administrator within 30 day of Agreement date. The Company requires trained
drivers familiar with EPA, DOE and DOT procedures with regard to shipment
of
low-level radioactive materials and emergency spill procedures. The transporting
vehicle will be placarded by Seller's personnel in accordance with DOT
regulations found in 49 CFR 100-199 and transported in accordance with DOT
and
other applicable regulations.
INSURANCE
See
Exhibit B, Special Conditions Fixed Price - Commercial Services, SC-14
Insurance.
SHIPPING
DOCUMENTS
A
shipping manifest will be completed by the Company or Contractor in accordance
with 49 CFR 100-199 and 49 CFR 761.202 - .218 and signed by the transporter
and
facility operator upon receipt of material. The owner/operator will mail
the
manifest original to the Company or Contractor within 30 days after receipt
of
material. Manifest shall be mailed to Xxxxxxx Xxxxxx Company, LLC,
K-1007
Room 2313, MS7596,
Oak Ridge, TN. 37831-75596; Attention: Xxxxxxxx Xxx Xxxxxx.
FINES,
PENALTIES AND ASSESSMENTS
(a) If
the
Seller fails to perform the services within the time specified in this Agreement
or any order placed under this Agreement, or any extension, the Seller shall
pay
to DOE or the Company or the Contractor the amount of any fine or penalty
imposed on DOE or the Company or the Contractor for failing to have that
waste
treated and disposed in accordance with the Site Treatment Plan
(STP).
(b) Additionally,
if performance is so delayed, the Company may terminate this Agreement in
whole
or in part under the Default clause in this Agreement
BASIC
Agreement 23900-BA-99446F
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(c) The
Seller shall not be charged with for any fine or penalty imposed when the
delay
in performance arises out of causes beyond the control and without the fault
or
negligence of the Seller as defined in the Default clause in this
Agreement.
RIGHTS
TO PROPOSAL DATA
Except
for technical data contained in page _NONE_____ of the Proposer's proposal
dated
May 1, 1998, which is asserted by the Proposer as being proprietary data,
it is
agreed that as a condition of the award of this Agreement, and notwithstanding
the provisions of any notice appearing on the proposal, the Company and the
Government shall have the right to use, duplicate, and disclose and have
others
do so for any purpose whatsoever, the technical data contained in the proposal
upon which this Agreement is based.
Key
Personnel and Point of Contact
East
Tennessee Materials and Energy Corporation
Xx.
Xxxxx
XxXxxxxx
Xx.
Xxxxx
Xxxxxx
000
Xxxxx
Xxxxxx Xxxx
Xxx
Xxxxx, XX 00000
Phone
(000) 000-0000
Fax
(000)
000-0000
Labor
Personnel and Work Rules
Seller
shall employ only competent and skilled personnel to perform the Work and
shall
remove from the Work any Seller personnel determined to be unfit or acting
in
violation of any provision of this Agreement.
ARTICLE
X - Agreement CONTENTS
The
provisions of the following articles and documents are made a part of this
Agreement:
| 1. |
Exhibit
5 - Patent Indemnity
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| 2. |
Exhibit
9 - Technical Data
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3.
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Basic
Ordering Agreement General Terms & Conditions for Commercial Items DOE
Contractors (09/98)
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4.
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Attachment
A - List of Eligible DOE Site, Contractors, Designated Affiliates,
and SMO
Laboratories.
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| 5. |
Attachment
B - Pricing Proposal
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| 6. |
Attachment
C - Ordering Provisions
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| 7. |
Statement
of Work dated September 1, 2005
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| 8. |
FAR
clauses: 53.203-1
Gratuities
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52.222-1
Notice to Government of Labor Disputes
52.222-3
Convict Labor
52.223-14
Toxic Chemical Release Reporting
52.223-7
Notice of Radioactive Materials
BASIC
Agreement 23900-BA-99446F
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9. Exhibit
B - Special Conditions Fixed Price Commercial Services
IN
WITNESS WHEREOF, the parties hereto have executed this document as of the
day
and year of the Xxxxxxx Xxxxxx representatives signature.
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EAST
TENNESSEE MATERIALS AND
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XXXXXXX
XXXXXX COMPANY, LLC.
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ENERGY
CORPORATION
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Name
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/s/
Xxx Xxxxxxxx
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Name
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Xxxxxxxx
Xxx Xxxxxx
/s/ Xxxxxxxx Xxx Xxxxxx
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Title
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Business
Manager
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Title
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Subcontract
Administrator
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Date
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September
21, 2005
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Date
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September
20, 2005
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