BASIC AGREEMENT BETWEEN
EAST TENNESSEE MATERIALS AND ENERGY CORPORATION
AND
XXXXXXX XXXXXX COMPANY, LLC.
BASIC AGREEMENT NUMBER
1GB-99448V
________________________________________________
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:
1. This Agreement is on behalf of the Department of Energy
and those contractors and designated affiliates named in
Attachment A.
2. 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.
3. The ordering provisions are contained in Attachment C.
4. General Terms and Conditions Fixed Price (FP 10-97) are
included in Attachment D and made a part herein.
5. Agreement is contingent on completion of the National
Environmental Policy Act (NEPA) within two years from
date of Agreement. 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.
6. 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.
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.
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.
BASIC Agreement 1GB-99448V
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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.
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
(1GS-99448V). The term of this BA is five years from the date this
Agreement is signed by the Agreement Administrator. 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 Contractors rights and obligations with
respect to that order to the same extent as if the order were completed
during the Agreement's effective period.
BASIC Agreement 1GB-99448V
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(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.
(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. 1GB-99448V, 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
BASIC Agreement 1GB-99448V
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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 - 85% of invoice total within 30 days of receipt of
proper invoice. Invoice will be submitted with certification that
all treated waste meets the applicable LDR treatment standards.
The remaining 15% will be paid within 30 days of acceptance of
treated mixed waste at the disposal facility as evidenced by
Certificate of Disposal, Payment shall be based on the quantity of
waste treated, in kg, multiplied by the unit price per kg per
schedule contained in Attachment B. Adjustments to the payment
price will be in the following manner: The Seller shall include on
each invoice the calculation of the projected disposal volume, in
accordance with the disposal formula contained in Attachment B, and
the actual disposal volume. If the actual volume of the treated
waste is less than the projected volume of waste based on the
disposal formula contained in Attachment B, the Company will
provide compensation at 50 percent of the calculated projected
volume minus the actual treated waste volume times $45.00 per cubic
foot. If the actual treated waste volume is greater that the
calculated projected volume, the Company will withhold compensation
at 100 percent of the actual treated waste volume minus the
calculated projected volume times $45.00 per cubic foot. If the
volume of treated waste from treatment is equal to the calculated
projected volume, the disposal ratio will no affect compensation.
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 8 are firm for the effective period of this
Agreement, described in Article II - Scope of Work.
BASIC Agreement 1GB-99448V
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ARTICLE VIII - ADMINISTRATION
_____________________________
BA Procurement Administrator address is as follows:
Xxxxxxx Xxxxxx Company LLC
Attn: Xxxxxxx X. Xxxxxxx
K1001 MS 0000
Xxx 00
Xxx Xxxxx, Xxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: xxx@xxx.xxx
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: Xxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxx 00000
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
BASIC Agreement 1GB-99448V
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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.
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
Sellers 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.
BASIC Agreement 1GB-99448V
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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.
TITLE TO WASTE
______________
Upon the Seller accepting and taking possession at the place(s)
designated in each release of raw waste awarded, title, risk of
loss, and all other incidents of ownership to the raw waste and
resulting treatment shall thereupon transfer from DOE and shall be
held by the Seller. 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 recovery of any
material encountered in the raw waste nor any credit for its
potential value. Recycle material becomes 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
_________
(a) Seller will be responsible for, and assumes all liability for,
loss or destruction, of or physical damage to, all vehicles,
equipment, and containers owned or leased by Seller or any
subcontractor and all personal property of employees of Seller
or of any subcontractor unless such loss or damage was caused
by the negligence of the Company or any of its employees or
agents.
(b) Seller will insure, or cause to be insured, each and every
xxxxxxx employed in the performance of the work, the
compensation provided for in and by each and every statute
applicable thereto with respect to Workers' Compensation and
Employers' liability, and will procure and maintain until
termination of this Agreement the following insurance in not
less than the following amounts with reputable and financially
responsible insurance companies:
1. Seller's public liability insurance properly
safeguarding Seller against liability for injuries
to persons, including injuries resulting in death
and damage to or destruction of property, in no
less than the following amounts: $500,000 for
injuries to one
BASIC Agreement 1GB-99448V
Page 8 of 10
person and $1,000,000 for injuries to two or more
persons in any one accident; and $500,000 for
damage to or destruction of property in any one
accident.
2. Contractual liability insurance properly
safeguarding Seller against liability assumed by
Seller for injuries to persons including injuries
resulting in death, in amounts of not less than
$500,000 for injuries to one person and $1,000,000
for injuries to two or more persons, in any one
accident; and $500,000 for damage to or destruction
of property in any accident.
3. Automobile liability insurance properly
safeguarding Seller against liability for injuries
to persons, including injuries resulting in death
and damage to or destruction of property, arising
out of the ownership, maintenance or use of
automobiles in not less than the following amounts:
$500,000 for injuries to one person and $1,000,000
for injuries to two or more persons, in any one
accident; and $500,000 for damage to or destruction
of property in any one accident.
4. If any portion of the work is subcontracted,
Seller's protective liability insurance properly
safeguarding Seller against claims for injuries to
persons, including injuries resulting in death, and
damage to or destruction of property, in not less
than the following amounts: $500,000 for injuries
to one person and $1,000,000 for injuries to two or
more persons, in any one accident; and $500,000 for
damage to or destruction of property in any one
accident,
5. Before commencing work under this Agreement, the
Seller shall certify to the Company, in writing,
that the required insurance has been obtained. The
policies evidencing required insurance shall
contain an endorsement to the effect that any
cancellation or any material change adversely
affecting the Government's interest shall not be
effective: (1) for such period as the laws of the
State in which this Agreement is to be performed
prescribe, or (2) until 30 days after the insurer
or the Seller gives written notice to the Company,
whichever period is longer,
6. The Seller shall insert the substance of this
clause, including this paragraph (f), in
subcontracts under this Agreement that require work
on a Government installation and shall require
subcontractors to provide and maintain the
insurance required in paragraph (a-d) above. At
lease five (5) days before entry of each
subcontractor's personnel on the Government
installation, the Seller shall furnish (or ensure
that there has been furnished) to the Company a
current certificate of insurance, meeting the
requirements of paragraph (b) above, for each such
subcontractor.
BASIC Agreement 1GB-99448V
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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, K1001 MS
7596, Xxx Xxxxx, XX. 00000-0000; Attention: Xxx Xxxxxxx.
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
(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
__________________________________
Xx. Xxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxx 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.
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ARTICLE X - Agreements CONTENTS
_______________________________
The provisions of the following articles and documents are made a
part of this Agreement:
1. Exhibit 5 - Patent Indemnity
2. Exhibit 9 - Technical Data
3. General Terms & Conditions Fixed Price (FF10-97)
4. Attachment A - List of Eligible DOE Site, Contractors, or
Designated Affiliates
5. Attachment B - Pricing Proposal
6. Attachment C - Ordering Provisions
7. Statement of Work dated December 8, 1997
8. FAR clauses: 53.203-1 Gratuities
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
IN WITNESS WHEREOF, the parties hereto have executed this document
as of the day and year of the Xxxxxxx Xxxxxx representative's
signature.
EAST TENNESSEE MATERIALS AND XXXXXXX XXXXXX COMPANY, LLC.
ENERGY CORPORATION
Name /s/ Xxxx X. Hills Name /s/ Xxx X. Xxxxxxx
______________________ ____________________________
Title President Title Procurement Representative
_____________________ ___________________________
Date 6/23/98 Date 6/23/98
______________________ ____________________________
