EXHIBIT 10.15
REGENCY GAS SERVICES
PIPELINE CONSTRUCTION CONTRACT
This Contract is made and entered into this 2nd day of May, 2005, at Dallas,
Texas, by and between Regency Gas Services, hereinafter called "Company" and
X.X. Xxxxx Co., hereinafter call "Contractor".
Company has advised Contractor that Company desires to have constructed certain
30" Natural Gas pipeline with facilities, beginning at the Mainline Facility to
Winnsboro. Louisiana.
In consideration of Ten Dollars ($10.00) cash in hand paid by Company to
Contractor and other good and valuable consideration the receipt and adequacy of
which is hereby acknowledged and in consideration of the covenants herein,
Company and Contractor agree as follows:
1. Contractor represents and warrants that it has fully acquainted itself
with the work to be performed hereunder, including, without
limitation, all the provisions of the Contract as herein after
defined, the topography of the right-of-way; the type and character of
the soil, rock, grading, stream, highway, railroad and all other
conditions, obstacles and impediments, of whatsoever kind and
character, which may be encountered in the performance of the work.
2. Contractor hereby acknowledges that Company has furnished it the
Company's General Conditions, Pipeline Construction Specifications,
Standard Drawings, the Special R.O.W. Provisions, and the Project
Drawings (all the immediately foregoing documents shall be
collectively, hereinafter referred to as the "Documents"). Attached to
this Pipeline Construction Contract, the Pipeline Construction Bid
Specifications and a list of the Project Drawings. The Documents, this
Pipeline Construction Contract, the Pipeline Construction Bid
Specification, the Special R.O. W. Provisions and the Project
Drawings, together with any written documents which are referred to
and made a part of any of the foregoing, shall constitute the
"Contract" between Company and Contractor and all are incorporated
herein by this reference.
3. Contractor shall perform, and do all things necessary, for the proper
construction and completion of the work as described and provided in
the Contract.
4. Time is of the essence, the work shall be commenced on or before
August 1, 2005 and all work under this Contract shall be completed on
or before November 1, 2005, Mechanical Completion being October 21,
2005 and Final Clean-up, December 31, 2005; provided, however, that
Company may postpone the above starting date pending the issuance of
any necessary approvals of
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Company Initials: DJJ
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governmental authorities, availability of rights-of-way, or adequate
amounts of material are available at the delivery points provided for
in this Contract, so long as Company provides Contractor with an
appropriate equitable adjustment of the time and payment provisions of
this Contract. It is agreed that Company will give notice to
Contractor of any such postponement at least ten (10) days prior to
said subsequent starting date as set forth above shall be delayed
equally.
5. Company shall pay Contractor for the performance of this Contract in
accordance with the unit prices set forth in the Pipeline Construction
Bid Specification and the other applicable provisions of the Contract.
6. This Contract is and shall be deemed made and delivered in State of
Louisiana, and shall be governed and construed in accordance with the
laws of the State of Louisiana.
7. This Contract shall be binding upon the parties hereto, their
representatives, heirs, executors, administrators, successors and
assigns. Contractor shall not assign this Agreement, or any portion
hereof, or any of its rights and obligations hereunder without first
securing the prior written consent of Company.
8. Contractor represents and warrants that it has read and understands
this Contract and now states that this Contract constitutes the entire
agreement between the parties concerning the subject matter hereof,
and any prior statements, negotiations, inducements, representatives,
contracts or agreements, exclusive of the Contract, relating thereto
are hereby canceled, and declared invalid and shall not be binding
upon the parties.
9. Special Requirements
a. Regency retains the right to select or reject any or all bidders
at its sole discretion.
b. Operator Qualification Requirements.
c. Drug Test Requirements Provisions.
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EXECUTED, effective as of the day and year first above written.
ATTEST "CONTRACTOR"
X.X. Xxxxx Co.
---------------------------------------------
(Name of Contractor)
/s/ X.X. Xxxxxxxx, Xx.
---------------------------------------------
BY
/s/ Nan Drinker Sr. Vice President
-------------------------------- ---------------------------------------------
SECRETARY TITLE
"COMPANY"
ATTEST REGENCY GAS SERVICES
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
BY
/s/ Xxxxxx (illegible) Vice President - Operations and Engineering
-------------------------------- ----------------------------------------------
SECRETARY TITLE
REGENCY GAS SERVICES
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Company Inititals: DJJ
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INVOICE PROCEDURE
SUPPLEMENT TO INVOICE NO. _______________
INVOICE DATE _______________
FOR WORK COMPLETED FOR PERIOD _____________________, 20__ THROUGH
____________________, 20__, ON SPREAD __________________ UNDER CONTRACT OF
____________________, AND AS PER CONSTRUCTION CERTIFICATE DATED _______________,
ATTACHED.
UNITS TO UNIT AMOUNT
% DATE PRICE EARNED
ITEM Complete (FT.) (FT.) ($)________
------------------------- -------- -------- ----- -----------
a. Mobilization (10%) ____% ________ _____ __________
b. Clearing (15%) ____% ________ _____ __________
c. Grading (5%) ____% ________ _____ __________
d. Ditching (10%) ____% ________ _____ __________
e. Stringing (5%) ____% ________ _____ __________
f. Laying & Welding (20%) ____% ________ _____ __________
g. Field Joints (3%) ____% ________ _____ __________
h. Lowering-in (7%) ____% ________ _____ __________
i. Tie-Ins (10%) ____% ________ _____ __________
j. Testing (5%) ____% ________ _____ __________
k. Clean-up (10%) ____% ________ _____ __________
----
____%
EARNINGS RETENTION
-------------- --------------
(1) Cumulative Total to Date $_____________ $_____________
(2) Total Previously Invoiced $_____________ $_____________
(3) Total Earned This Period $_____________ $_____________
AMOUNT DUE THIS INVOICING $_____________________________
(Item 3, Earnings Less Ten Percent (10%) Retention
XXXX TO ADDRESS:
Xxx Xxxxxxxxx
Regency Gas Services
000 Xxx Xxxxxx
Xxxxxx, XX 00000
000-000-0000
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Company Inititals: DJJ
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REGENCY GAS SERVICES
INDEX
GENERAL CONDITIONS
1.0 Definitions and Correlation of Documents
2.0 Materials, Equipment and Employees Furnished by Contractor
3.0 Materials and Equipment Furnished by Company
4.0 Representatives and Superintendents
5.0 Safety
6.0 Insurance
7.0 Personal Injury and Property Damage
8.0 Taxes, Liens, and Legal Requirements
9.0 Workmen's Compensation Insurance
10.0 Subcontractors
11.0 Commencing Work at Contractor's Risk
12.0 Skipping Work
13.0 Suspension, Discontinuance of Work or Shut Down
14.0 Changes in Work
15.0 Disputed Claims for Extra Compensation
16.0 Extra Work
17.0 Force Count Work
18.0 Omitted Work
19.0 Contractor's Obligation to Furnish Statements
20.0 Prosecution of Work
21.0 Inspection: Authority of Company's Representative and Inspectors
22.0 Radiographic Inspection
23.0 No Waiver Authorization
24.0 Site Examination
25.0 Measurement of Work Quantities
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26.0 Consideration
27.0 Inspection of Contractor's Records
28.0 Company's Right to Supplement Work of Partially Terminate Contract
29.0 Termination of Work for Default of Contractor
30.0 Payment
31.0 Oral Agreements
32.0 Bonds
33.0 Liability of Company
34.0 Guarantee
35.0 Equal Opportunity
36.0 Certification of Non-Standard Facilities
37.0 Handicapped Workers
38.0 Disabled Veterans and Veterans of the Vietnam Era
39.0 Contractor Assurances
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1.0 DEFINITIONS AND CORRELATION OF DOCUMENTS
1.1 The obligations of Contractor and the rights of Company under the
Contract shall be cumulative. The fact that two or more of the
provisions of the Contract may deal with the same or a similar subject
matter but impose different, although not mutually exclusive,
obligations upon Contractor shall not relieve Contractor from
satisfying all of said obligations. Company shall not limit Company's
rights under any such provision. The exercise by Company of any right
granted under this Contract shall not limit or affect the Company's
ability to exercise any other rights, whether arising under this
Contract, unless expressly provided; however, the rights and remedies
set forth in this Contract shall be the exclusive rights and remedies
of Company. If any provision of the contract is or should subsequently
become void, or unenforceable under applicable law, such fact shall
not affect the Company's rights under or ability to enforce any other
provision.
1.2 Subject to the provisions of paragraph 1.1 above, if two or more of
the provisions of this booklet entitled "Documents" are in direct
conflict, unless otherwise expressly provided in the Contract, the
order of precedence among the sections shall be as follows:
Special Provisions
Construction Specifications
Project Drawings (eg: Alignment Sheets, Mainline Valve
Drawings, Launcher/Receiver Drawings, etc.)
Special Drawings (eg: Permit Drawings, Typical Construction
Drawings, etc)
General Conditions
1.3 The term "Company" as used in the Contract shall mean Regency Gas
Services which has contracted with the Contractor for the performance
of the work, acting through its officers.
1.4 The term "Contract" as used herein shall mean any written agreement,
which incorporates by reference this booklet entitled "Documents"
regardless of the title which may be given to said written agreement,
together with any other written documents, specifications or drawings
incorporated by reference in said written agreement.
1.5 The term "Contractor" as used in the Contract shall mean the
corporation, partnership or other entity which has agreed in the
Contract to perform the work.
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1.6 The term "crew" as used in the Contract shall be defined as a group of
workmen, including supervisory personnel, operators and related
equipment, engaged in a single specific task in the construction of
the facilities.
1.7 The term "Extra Work" as used in the Contract shall have the meaning
indicated in Section 14.2 of these General Conditions.
1.8 The term "Construction Bid Sheet", and the term "Unit Price Summary"
as used herein shall each mean that portion of the Contract entitled
Construction Bid Sheet" or "Unit Price Summary" or any other provision
of the Contract however entitled which sets forth the prices which the
Company has agreed to pay Contractor for the performance of the work.
1.9 The term "right-of-way", "rights-of-way" or "ROW" as used in the
Contract shall mean the easements, license, lease, permit or other
real or personal right under which Company has the right to construct
the facilities upon, over, under, across, and through the lands
whereupon the Contractor is to construct the work hereunder.
1.10 The term "spread" as used in the Contract shall mean all crews
necessary to install a pipeline or other facilities to be constructed
by Contractor as described in this Contract.
1.11 Unless the context clearly indicates otherwise, the term "work" as
used in the Contract shall mean all of the materials, labor and
activities necessary for the completion of the facilities to be
constructed under the Contract to the satisfaction of Company.
1.12 "Applicable Law" shall mean any law, statute, order, decree,
injunction, license, permit, consent, approval, agreement, or
regulation of any governmental entity having jurisdiction, including
any specified standards or criteria contained in any applicable permit
or approval, which standards or criteria must be met in order for the
Work to be constructed and operated lawfully, or other legislative or
administrative action of a governmental entity or a final decree,
judgment, or order of a court.
1.13 "Change in Law" shall mean the adoption, enactment or application to
Company or Contractor of any Applicable Law not existing, or otherwise
applicable to Company or Contractor, on the Effective Date that
adversely affects (in cost and/or time) the ability of Company or
Contractor to perform its obligations hereunder, provided however,
that a
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change in any income tax law shall not constitute a Change in Law.
1.14 If and to the extent that any Change in Law gives rise to a change in
the Work or to the schedule, manner or sequence of execution of the
Work, such Change in Law shall be treated as a Change.
2.0 MATERIALS, EQUIPMENT and EMPLOYEES FURNISHED BY CONTRACTOR
2.1 Unless otherwise expressly provided, Contractor shall provide and pay
for all materials, labor, tools, equipment, water, light, power,
transportation and other facilities necessary for the execution,
testing and completion of the work unless and except as otherwise
provided herein.
2.2 WARRANTY
All material and equipment incorporated into Work covered by the
Agreement shall be new and without defects in workmanship and
materials. All workmanship shall be in accordance with accepted
construction practices and of a quality accepted within the industry.
Contractor warrants all equipment, materials and labor, including
required pipeline depth of cover, furnished or performed under the
Agreement against defects in materials and workmanship for a period of
one (1) year from and after substantial completion of the Work.
Warranty regarding depth of cover will apply to the entire pipeline,
unless such pipeline sections, regarding placement/necessity of
required pipeline weighting, cannot be mutually agreed upon between
the contractor and company. Upon receipt of written notice from
Company of any defect in any such equipment, material, labor or
pipeline cover discovered during the applicable warranty period, the
affected item or parts thereof shall be repaired or replaced by
Contractor at Contractor's expense at a time acceptable to Company. If
within a reasonable time after Company gives the Contractor notice of
defect, the Contractor neglects to make or undertake with due
diligence to make necessary correction, Company is hereby authorized
to make the correction itself or order the Work to be done by a third
party, and the cost of the correction shall be promptly paid by
Contractor upon receipt of an invoice from Company for the same.
2.3 All tools and equipment furnished and used by Contractor shall be
safe, efficient, serviceable and in good condition, and Contractor
further agrees to replace any equipment and machinery which, in the
judgment of the Company's Representative, is unsafe or incapable of
satisfactorily performing the work for which it was designed.
2.4 Should Contractor require unskilled labor, it agrees to employ
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persons residing in the locality in which the work is being performed,
insofar as possible, to fulfill such unskilled labor requirements.
2.5 Contractor shall pay all persons employed by it for the performance of
the work in compliance with all legal requirements, as the same may
now or hereafter exist and shall comply any other governmental
authority applicable to Contractors employment practices.
2.6 Contractor agrees that it will remove from the job any of its
employees who refuse to comply with any of the terms of this Contract.
2.7 Company shall have the right, at any time, to require that the
Contractor replace Contractor's Superintendent if, in Company's
opinion, the Superintendent is negligent, incompetent or fails to
observe and to perform the provisions of the Contract. Contractor
shall not remove any equipment or key men from the location of the
work' unless such removal is authorized by Company's Representative,
and the Company shall have the right to require Contractor to employ
an additional crew or crews and provide additional equipment, tools
and supplies if, in the judgment of Company's Representative, such
procedure is necessary to complete the work within the time specified
in the Contract.
2.8 Contractor will furnish and install field joint coating FBE for
mainline and SP 2888 or company-approved equivalent for tie-ins
3.0 MATERIALS and EQUIPMENT FURNISHED BY COMPANY
3.1 Company shall pay for and furnish to Contractor at appropriate common
carrier sidings, terminals or stations, or at the nearest suitable
Company warehouses or storage yards, or at other points of delivery
mutually agreed upon, all pipe, valves, fittings, and other materials
which become a permanent part of the facilities to be constructed
hereunder, except materials described in Article 2.0 to be furnished
by Contractor.
3.2 Contractor shall be responsible for receiving any and all materials
and equipment furnished to Contractor by Company after delivery to the
agreed points of delivery and shall repair or replace with materials
of equal quality at its own expense, or reimburse Company for the cost
of any loss or damage which said materials may sustain from any cause
after said delivery to it.
3.3 Contractor shall bear the cost of any demurrage or other claims
resulting from delays in unloading said materials furnished to it by
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Company after reasonable notification that such materials have been
shipped.
3.4 Contractor shall notify and secure permission from the Company, in
advance, if it wishes to withdraw materials stored in Company material
yards or warehouses.
3.5 Contractor shall return to Company, without undue delay after
completion of the work, all extra and surplus materials delivered by
Company, which were not used to complete the work to the Dubach
Facility Yard.
3.6 All materials, furnished by Company to Contractor hereunder shall be
inspected and tallied at the point of delivery to Contractor, by
representatives of Company and Contractor, each keeping a record of
quantities, quality and conditions, and any loss of or damage to such
materials during shipment shall be reported immediately to the
shipping agency.
4.0 REPRESENTATIVES AND SUPERINTENDENTS
4.1 Company may have a representative or representatives ("Company's
Representative") at the location of the work to observe and inspect
the same.
4.2 Contractor shall at all times have a superintendent ("Superintendent")
on the work, vested with full authority to represent Contractor in
prosecuting the work hereunder.
4.3 In the performance of the work embraced by this Contract, Contractor
is an independent contractor, and nothing in this Contract creates or
shall be construed creating either a partnership (of any kind) or the
relationship of principal and agent, or employer and employee, between
Company and Contractor or between Company and Contractor's agents,
subcontractors or employees. Contractor shall have no authority to
hire any persons on behalf of Company, and any and all persons whom it
may employ are and shall be deemed to be solely the employees of
Contractor.
4.4 Contractor shall have control and management of the details of the
work, the selection of employees and the fixing of their hours of
labor. Upon completion of the Contract, the pipeline or the other
facilities to be constructed hereunder shall be delivered to Company
completed in accordance with the Contract. The Company shall be
entitled to inspect and determine whether the work is being performed
in
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compliance with the terms of this Contract. Nothing herein contained
authorizes, or shall be construed to authorize, Contractor to incur
any debt, liability or obligation of any nature for, or on behalf of,
the Company.
5.0 SAFETY
5.1 Contractor shall continuously maintain adequate protection of all its
work from damage, and shall protect the Company's property from injury
or loss arising in connection with this Contract. Contractor shall at
all times exercise due care with regard to all excavations, equipment,
machinery and materials to prevent loss or injury to persons and
property, including livestock; and shall use such adequate protective
devices, warning signs and barriers as may be reasonably required
under the circumstances. Contractor will comply with all Federal and
State safety and environmental laws at all times.
5.2 Relative to performance of the work hereunder, Contractor, in
recognition of the scope of work, the specifics of the work location,
and in Contractor's capacity as an independent contractor which is
experienced in the kinds of work to be undertaken hereunder, agrees to
provide all necessary safety equipment, safety instructions and a
written safety plan for the safety of its employees, representatives,
subcontractors, if any, and others who may be at the work location
pursuant to the requirements of Contractor. In addition to the
foregoing, Contractor agrees to comply with any safety requirements of
the Company.
6.0 INSURANCE
6.1 Contractor, at its own expense, shall provide and maintain in force
the kinds of insurance, with companies acceptable to the Company, and
in the minimum amounts of coverage's set forth in the insurance
schedule below to cover all loss and liability for damages on account
of bodily injury, including death, and injury to, or destruction of,
property caused by, or arising from, any and all operations carried
on, or any and all work performed under this Contract. Contractor, if
requested, shall furnish Company with the copies of the policies with
all endorsements prior to commencement of any work hereunder,
including a copy of the contractual insurance endorsement insuring
performance of the hold harmless clause included in Article 7.0
hereof:
6.1.1 Workers' Compensation (Including Occupational Disease) and
Employer's Liability Insurance with a minimum policy limit of
$1,000,000 per accident. Coverage's shall apply to all employees
in accordance with the benefits afforded by the statutory
Workers'
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Compensation Acts applicable to the State, Territory or District
of hire, supervision or place of accident.
6.1.2 Comprehensive Commercial General Liability Insurance covering
premises operations, products and completed operations,
independent contractors, blanket contractual liability, explosion
(x), collapse (c), and underground (u) hazards. Policy shall be
endorsed to provide broad form property damage, including
completed operations.
Policy limits shall not be less than:
(A) Bodily Injury $1,000,000/$1,000,000
(B) Property Damage $1,000,000/$1,000,000
6.1.3 Comprehensive Automobile Liability Insurance covering all owned,
hired and non-owned automotive equipment. Policy limits shall not
be less than:
(A) Bodily Injury $1,000,000 Per Person
$1,000,000 Per Occurrence
(B) Property Damage $1,000,000 Per Occurrence
6.1.4 Umbrella Liability or Excess Liability Insurance having
following form excess of all primary coverage's enumerated in
6.1.1, 6.1.2 and 6.1.3 above with limits of at least
$10,000,000.00 Combined Single Limit for Bodily Injury and
Property Damage.
6.2 All policies shall provide that the insurance company will notify the
Company thirty (30) days prior to the termination of any policy,
and-before any changes are made which restrict or reduce the coverage
provided or change the name of the insured. In the event of the
Contractor's failure to furnish such copies upon request or to carry
out any of the provisions of this Article, the Company shall, in
addition to any right to recover damages or to obtain other relief,
have the right to cancel and terminate this Contract.
6.3 Waiver of Subrogation
All insurance policies of Contractor with respect to the operations
conducted hereunder shall be endorsed in accordance with the following
policy wording to waive all express or implied rights of subrogation:
"The Insurers hereby waive their rights of subrogation against any
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individual, firm, corporation, partnership or other entity for whom,
or with whom, the Insured may be working and against any affiliated
subsidiary or associated companies, partners, joint ventures, factors,
or assigns of such entities."
6.4 Before commencing performance of this Contract Contractor shall
furnish Company with Certificates of Insurance indicating:
6.4.1 The kinds and amounts of insurance required above are in force.
6.4.2 The Insurance company or companies carrying the aforesaid
coverage's.
6.4.3 The expiration dates of policies.
6.4.4 That Company will be given thirty (30) written advance notice of
any material change in or termination of any policy.
6.4.5 That Waiver of Subrogation has been endorsed on all policies.
6.4.6 That the indemnification and hold harmless provisions hereof are
insured.
6.5 Subcontractors
Contractor shall require all of its subcontractors to provide for the
foregoing coverage's, as well as any other coverage's that Contractor
may consider necessary, all to be endorsed with the Waiver of
Subrogation wording above, and any deficiency in the coverage's,
policy limits or endorsements of said subcontractors will be the sole
responsibility of Contractor.
7.0 PERSONAL INJURY AND PROPERTY DAMAGE
7.1 INDEMNITY
Contractor agrees to assume liability for, and does hereby agree to
indemnify, protect, save and hold harmless Company from and against
any and all third party liabilities, obligations, losses, damages,
penalties, claims, suits, judgments, attorney fees and other expenses
or disbursements of any kind for personal injury (including death) or
property damage, environmental contamination or violation of any
applicable federal, state, or local statute, regulation or ordinance
arising out of the performance of this Agreement by Contractor or its
Subcontractors provided that Contractor's contractual obligation of
indemnity shall not extend to the percentage
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of the claimant's damages or injuries or the settlement amount
attributable to Company's negligence or fault, breach of contract or
warranty, or to strict liability imposed on Company as a matter of
law. Any claim (a "Claim") submitted to COMPANY by a third party that
relates in any way to the performance of Work under this Agreement
shall be forwarded to the Contractor. Contractor shall have sixty (60)
days from the date on which COMPANY forwards the Claim to the
Contractor (the "Claim Date") to investigate the Claim and to provide
a written response to COMPANY. Should Contractor fail to respond to
COMPANY within sixty (60) days of the Claim Date, Contractor shall be
deemed to have accepted any and all responsibility for said Claim.
Should the Contractor notify COMPANY within sixty (60) days of the
Claim Date that the Claim should be contested, the Parties shall work
together to resolve the Claim, notwithstanding any obligation of the
Contractor for indemnification of COMPANY.
7.2 Contractor is solely responsible for the proper location of
all-foreign pipeline crossings as well as the location and depth of
the pipelines that parallel most of this project. The Company and its
agents have provided materials giving the approximate location of many
of these crossings. The Contractor should not rely on any of these
approximations when actual excavation begins. It is the contractor's
responsibility to avoid damage to these foreign crossings and their
associated ROW. It is the contractor's responsibility to repair damage
to these foreign crossings and their associated ROW to the
specifications required by the owner. It is the contractors'
responsibility to follow all applicable one-call location laws
regarding this project prior to any work being done.
7.3 CONSEQUENTIAL DAMAGES
Notwithstanding any other provision of this Agreement to the contrary,
in no event shall Company or Contractor (or any of its Subcontractors
or suppliers to any tier) be liable to each other for any indirect,
special, incidental, or consequential loss or damage including, but
not limited to, loss of profits or revenue, loss of opportunity or
use, cost of capital, or like items of loss or damage; and each Party
hereby releases the other Party therefrom.
8.0 TAXES, LIENS AND LEGAL REQUIREMENTS
8.1 The Contractor shall promptly and satisfactorily settle and pay all
claims for labor, equipment, materials, and supplies, and any and all
other claims of every nature which it is obligated to pay hereunder
and shall furnish evidence satisfactory to Company that all such
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claims have been settled and paid.
8.2 Contractor shall not at any time suffer or permit any lien, attachment
or other encumbrances, or the filing of any instrument claiming any
such lien, attachment or other encumbrance, under any applicable laws
or otherwise, by any person or persons whomsoever, to be put or remain
on the work or premises to which work or materials are furnished
hereunder for any claim or demand whatsoever against the Contractor
provided that Contractor is being paid on a current basis pursuant to
this Agreement. Any such lien, attachment or other encumbrance, until
it is removed by Contractor at Contractor's sole expense, shall
preclude any and all claims or demand for any payment whatsoever under
or by virtue of this Contract. In the event the lien, attachment or
other encumbrance, or any instrument claiming any such lien,
attachment or other encumbrance, is not removed and released, the
Company may pay such claim or demand and remove such encumbrance, and
may deduct the amount so paid, together with all expenses incurred in
connection with said payment or removal including, without limitation,
legal fees from any payment then or thereafter due Contractor, or, if
demanded by Company, Contractor shall reimburse Company for said
amount and expenses. Any such payment made in good faith by Company
shall be binding upon Contractor.
8.3 Contractor shall comply with all Federal, state, or municipal laws and
regulations regarding taxes and the payments of all kinds now in
effect and those becoming effective during the term. of this Contract,
including, without limitation, Social Security, State Unemployment
Insurance, Gross Receipts Taxes, Withholding Taxes, Xxxxxxx'x
Compensation Laws, Income Tax Laws, and will furnish, as requested by
the Company, satisfactory evidence of such compliance. Contractor
shall indemnify and save harmless Company from any and all liability,
lien or assessment imposed upon Company, arising from Contractor's
failure to comply with said laws, rules and regulations.
8.4 Contractor further agrees that where the work or any part of the work
is to be performed in a jurisdiction where a stipulation against
mechanic's liens is recognized, upon request of the Company, it will
enter into such a stipulation and agrees that such stipulation may be
recorded in the office or offices provided, to the maximum extent
permitted by law, for the recording of such instruments. In addition,
Contractor hereby waives any and all. rights to a lien, or other
encumbrance, of any character whatsoever, on against any real or
personal property of Company arising out of the labor performed or
material furnished under the Contract and also waives the right to
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enforce any such lien or encumbrance.
9.0 WORKMEN' S COMPENSATION INSURANCE
9.1 The Contractor shall comply with and qualify under the Workmen's
Compensation Laws of the State or States in which the work is to be
performed and furnish a sworn statement of its compliance with said
laws. It shall also cause each of its subcontractors to comply with
and qualify under said laws and to furnish a sworn statement of its
(the subcontractor's) compliance with said laws.
10.0 SUBCONTRACTORS
10.1 Contractor shall not have the right to assign any of its duties under
this Contract or to subcontract any of the work to be performed by it
hereunder without the prior written consent of Company and upon such
conditions as Company shall deem necessary.
10.2 As soon as practicable after the execution of this Contract, the
Contractor will notify the Company in writing of the names of any
subcontractors it intends to employ in the performance of any of the
work hereunder and further agrees that it will employ only competent,
experienced and skilled subcontractors to do any part of the work
contemplated hereunder.
10.3 Contractor further agrees that before employing any subcontractor to
perform any of the work hereunder, it will cause such subcontractors
to agree in writing to be bound by the terms and provisions of this
Contract, so far as it is applicable to the work to be performed by
such subcontractor, and will furnish Company with a copy of such
agreement.
11.0 COMMENCING WORK AT CONTRACTOR'S RISK
11.1 Contractor may with Company's written approval commence construction
of the work before all necessary materials have been secured by the
Company, in which event, the Company agrees that any subsequent delay
suffered by Contractor by reason or failure of the Company to secure
adequate material shall entitle Contractor to an equitable adjustment
of the time and payment provisions of this Contract.
12.0 SKIPPING WORK
12.1 If it becomes necessary in the judgment of Company, any or all of the
crews of Contractor shall (i) skip any portion of the work and move to
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a location on another portion of the work designated by Company's
Representative and perform such other portion of work, (ii) move back
when designated by Company's Representative and perform such skipped
work and (iii) upon the completion of said skipped work, move to a
location, on the then remaining work designated by Company's
Representative, and resume performance of the remaining work. The
performance of all three of the operations enumerated and described in
the immediately foregoing sentence shall be considered to constitute,
and shall be referred to throughout the Contract, including the Unit
Price Summary, as a "move around." Company shall pay Contractor the
price, if any, set forth in the Unit Price Summary for each complete
"move around" which has been authorized in writing by Company's
Representative. Additional compensation shall not be paid for any move
around, or part thereof, permitted by Company for the sole purpose of
expediting Contractor's operations.
13.0 SUSPENSION, DISCONTINUANCE OF WORK OR SHUT DOWN
13.1 It is agreed that in the event either party is rendered unable wholly
or in part by force majeure to carry out its obligations, other than
the obligation to pay money, under this Contract, then on such party's
giving notice and full particulars on such force majeure in writing to
the other party, within two (2) working days after the occurrence of
the cause relied on, the obligation of the party giving such notice,
so far and only insofar as affected by such force majeure, shall be
suspended during the continuance of any liability so caused, and such
inability shall not be a breach of this Contract, and such party shall
not be liable for damages or otherwise on account thereof.
13.2 The term. "force majeure," as employed herein, shall mean the
occurrence of conditions beyond the control of the affected party such
as acts of God, (except as excluded herein), acts of the public
enemies, wars, blockades, insurrections, riots, epidemics,
earthquakes, major materials shipment failures, fires, priority
allocations of pipe or other materials, or orders, restraints or
prohibitions by any court, board, department, commission or agency of
the United States or of any state and without limitation any arrests
and restraints by rules and people, civil disturbances, explosions,
and inability with reasonable diligence to obtain pipe or other
essential materials. Labor disputes such as employee strikes or work
slowdowns shall not be considered force majeure.RAIN, FLOOD, SNOW, ICE
OR OTHER ADVERSE WEATHER CONDITIONS shall not be considered as Force
Majeure, unless they are greater than the last 10 year maximum event.
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14.0 CHANGES IN WORK
14.1 By written order of Company's Representative, Company may, at any time
and without notice to any surety on any bond, omit, change, alter or
add to Work to be performed hereunder by Contractor and in connection
therewith issue additional or revised specifications, drawings, and
written instructions. Contractor shall perform such Work in accordance
with such revised specifications, drawings, and written instruction
and pursuant to written authorization executed by Company or Company's
Representative and otherwise in accordance with the provisions of this
Contract.
14.2 If the Company and Contractor agree that any specific additions,
changes or alteration to the Work ordered by Company's Representative
justifies extra performance time or compensation, such additions,
changes or alterations shall be considered "Extra Work" and Contractor
shall be entitled to a time extension and compensated for such Extra
Work in accordance with Article 16. If a price for the Extra Work is
not agreed upon or is not provided for in Article 16 then such Extra
Work shall be performed on a "Force Account Basis" and considered
"Force Account Work" and Contractor shall be compensated as provided
in Article 17.0 Force Account Work.
14.3 If an order to change Work, deletes Work which is to be performed
hereunder and such deletion results in a substantial reduction, in the
opinion of Company, in the labor or materials to be furnished by
Contractor hereunder then such reduction in Work shall be considered
"Omitted Work" and Company shall be entitled to a reduction in the
compensation to be paid Contractor as provided in Article 18.
14.4 Company shall have the right by written notice to Contractor to make
changes to the Agreement ("Changes"), and Contractor shall have the
right to an equitable adjustment of the Budget, the schedule and other
affected terms of this Agreement to reflect such Changes. If
Contractor believes that it has encountered a Change and that such
Change affects the price, schedule or other terms for the Work,
Contractor shall so notify Company in writing within seven (7)
calendar days from the date that Contractor becomes aware of same.
After receipt of such written notice, Company and Contractor will
mutually agree in writing upon an equitable adjustment of the Unit
Prices, the Unit Rates, the Budget the schedule or other terms to
reflect the effect of such Change. Contractor's Change request shall
be in the detail normally used by Contractor for estimating work. If
Contractor fails to give notice within seven (7) calendars days and
Company is prejudiced by the delay, Contractor shall be deemed to have
waived its claim for adjustment to the extent of the prejudice
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incurred. Mutually agreed to adjustments will be incorporated into the
Agreement via formal change order. Contractor agrees that it shall not
suspend performance of Work during the period Company and Contractor
are in the process of negotiating such adjustment. If the parties
cannot agree on appropriate adjustments the matter shall be determined
in dispute resolution proceedings. In the absence of a mutual
agreement, Company can direct Contractor to proceed.
In the event that Company does not consider the circumstances
described in Contractor's written notice to constitute a Change,
Contractor shall be required to promptly proceed without delay. Should
the Contractor continue to believe that the circumstances described in
its written notice constitutes a Change, the dispute resolution
provisions of these terms and conditions shall be operative.
In no event shall Contractor fail to promptly proceed and complete the
dispute resolution provisions of these terms and conditions shall be
operative.
In no event shall Contractor fail to promptly proceed and complete the
work.
15.0 DISPUTED CLAIMS FOR EXTRA COMPENSATION
15.1 Should Contractor, in any situation, deem or contend in any manner
that extra compensation is or will be due for Work to be performed or
material furnished pursuant to the instructions or orders of Company's
Representative and Company has not agreed that such Work constitutes
Extra Work, Contractor shall notify Company. In such event Company
may, at its sole option, (i) have the Company's Representative execute
a Disputed Extra Work Order which shall set forth the Work for which
Contractor contends additional compensation is due, by Contractor or
(ii) may, without waiving any of Company's rights arising under the
Contract or otherwise require that Contractor not perform such Work
and perform such Work itself or have it done by other contractors. In
the event Company requires that Contractor not perform such Work,
Contractor shall cooperate with Company and Company's other
contractors to facilitate completion of the entire project.
15.2 In no event shall Contractor commence or undertake any work for which
it contends extra compensation is or will be owed without (i) prior
written authorization from the Company as an "Agreed Extra Work Order"
or (ii) prior to execution by Company's Representative of a "Disputed
Extra Work Order." Each Agreed Extra Work Order or Disputed Extra Work
Order must be supported by Contractor with written documentation
substantiating the nature and quantity of work performed for which
extra compensation is claimed and enabling pricing pursuant to the
Contract. If an Agreed or Disputed Extra Work
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Order is not obtained or Company's Representative is not offered
proper facilities or opportunities by Contractor for keeping a strict
account of actual costs incurred and Work quantities involved,
Contractor shall be conclusively deemed to have waived, and Company
shall not be obligated to pay any extra compensation for such Work.
The fact that notice has been given by Contractor as required by
Section 14.1, that Company's Representative shall have executed a
Disputed Extra Work Order or that Company's Representative has kept
account of the cost and/or quantity of such Work shall not in any way
be construed as approving or proving the validity of any such claim.
15.3 It is further understood and agreed that Company's Representative is
not authorized to verbally waive, amend, or release any obligation of
the Contractor under the Contract or to approve an Agreed Extra Work
Order and Contractor shall not rely upon any such alleged verbal
authorization in performing such Work. Subject to the above, Agreed
Extra Work Orders shall be paid by the Company, pursuant to Section
14.2 of these General Conditions. In case a Disputed Extra Work Order
claim is allowed after consideration by the Company, it shall be paid
in the manner provided in Article 16.2 of these General Conditions.
All claims for Disputed Extra Work shall be resolved before final
payment shall be due to Contractor.
16.0 EXTRA WORK
16.1 When Extra Work is authorized by written order of Company, Contractor
shall make every effort to provide such additional personnel and
equipment to complete said Extra Work within the time specified for
the completion of all work under the Contract including such Extra
Work with appropriate compensation for accleration costs if any, and
the time for the completion of all such work shall extended only when
required by the nature of the Extra Work or Company's desire to avoid
paying acceleration costs.
16.2 Extra Work shall be paid for in accordance with one or more of the
following methods in the manner specified in written authorization by
the Company or as otherwise expressly agreed upon by Company and
Contractor.
16.2.1 Mutually satisfactory lump sum price agreed upon by Company and
Contractor in writing.
16.2.2 Mutually satisfactory unit prices agreed upon by
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Company and Contractor in writing. Subject to the terms and
conditions hereof, for any Extra Work performed or materials
furnished, in addition to that specified in this Contract, for
which unit prices in the Unit Price Summary are applicable,
Contractor shall be paid the applicable unit prices for
completion of such Extra Work. Such compensation shall be in
addition to the contract price. The unit prices set forth in the
Unit Price Summary applied to the measured quantity of Extra Work
added shall be the total consideration paid for such Extra Work
inclusive of fringe benefits, burden, insurance, taxes, overhead
and profit.
17.0 FORCE ACCOUNT WORK
17.1 Contractor shall notify Company in writing twenty-four (24) hours in
advance of commencing any Force Account Work. Force Account Work shall
be paid for in the following manner.
17.1.1 For all labor and foremen employed on the specific operation
and for superintendence, use of small tools and equipment for
which no rental is allowed, office expense, overhead, insurance
and profit, Contractor shall receive the composite rate of wages
as set out in the Labor Rates for Force Account Work shown in the
Contract for each hour that said labor and foremen are actually
engaged in work. The wages of any xxxxxxx who is employed on
Force Account Work and partly on other work shall be prorated
between the two classes of work according to the number of men
employed under the supervision of such xxxxxxx on each class of
work as shown by the payrolls.
17.1.2 For all materials furnished by Contractor and used in the Force
Account Work, except those materials, if any, for which unit
prices are included in the Unit Price Summary specifically and
solely for such materials, Contractor shall receive the actual
costs of such materials delivered to the Work including freight
and hauling charges, as shown by original receipted bills.
17.1.3 For any machine, power tools, or equipment, including fuel and
lubricant but not including small hand tools, which actually are
used by Contractor in such Force Account Work, Contractor shall
receive the rental price shown in the Unit Price Summary, or if
not shown in the Unit Price Summary, that agreed upon in writing
in advance by Company and Contractor. No payment shall be due or
made for any
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machine, power tool or equipment for which no such written
agreement exists. The hourly rate will be in effect unless
equipment is used for one full day in which case the daily rate
will be in effect unless equipment is used for seven consecutive
days, in which case the weekly rate will prevail. For part of a
daily period beyond one or more full days but less than seven
consecutive days, the maximum rental price for such part of the
daily period shall be one-eighth of the applicable rate "per day"
for each hour worked. For a part of a weekly period beyond one or
more full weekly periods, the maximum rental price for such part
of the weekly period shall be one-seventh of the applicable rate
"per week" for each day worked. The compensation herein provided
shall be accepted by Contractor as payment in full for Force
Account Work and shall include superintendence, use of tools and
equipment for which no rental price has been agreed upon,
overhead expense and profit.
17.1.4 Contractor and the Company's Representative shall compare
records of payrolls for labor, equipment and materials furnished
on Force Account basis at the end of each day and resolve
discrepancies, if any, in writing. Otherwise, Company's records,
as approved by Company, shall control, in the absence of actual
fraud. Copies of these records including employee's name, social
security number, and classification, shall be made in triplicate
by the Contractor and the Company's Representative, and one copy
submitted by Contractor with invoice.
17.2 Company shall have the right to designate the quantity of labor
employed and the equipment and materials to be used by Contractor in
the performance of Force Account Work.
18.0 OMITTED WORK
18.1 For Omitted Work for which a unit price is shown in the Construction
Bid Sheet, Company shall be credited for such omitted Work at the
applicable unit prices. Units of such omitted Work will be reflected
in the semi-monthly estimates provided for in Section 30.1 of Article
30.0, Payment, herein. For omitted Work for which a unit price is not
shown in the Construction Bid Sheet, Company shall present a claim for
reduction in the compensation to be paid Contractor hereunder within
fifteen (15) days after the date it delivers the order to Contractor
to omit such work pursuant to Section 14.1. If such a claim for a
reduction in the compensation to be paid to Contractor is not made
within such fifteen (15) day period then it shall be
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conclusively presumed that there is no substantial reduction in labor,
materials to be furnished hereunder and no reduction shall be made in
the Contractor's compensation.
19.0 CONTRACTOR'S OBLIGATION TO FURNISH STATEMENTS
19.1 All claims for payment for Extra Work done shall be submitted to
Company by Contractor upon certified triplicate statements to which
shall be attached original receipted bills covering the cost and the
freight and haulage charges on all materials furnished by Contractor
and used in such Extra Work, said statements shall be submitted to
Company within fifteen (15) days of the completion of any item of
Extra Work. Contractor acknowledges that prompt submission of the
claim and supporting cost data is essential to the efficient
administration of the project and agrees that the Contractor's failure
to submit invoices for Extra Work performed within such period of time
shall constitute the final and absolute waiver by Contractor of any
claim for extra compensation for such Work performed.
20.0 PROSECUTION OF WORK
20.1 Except as otherwise provided in this Contract, construction once
commenced shall be continuous. CONTRACTOR SHALL PROSECUTE THE WORK
WITH DUE DILIGENCE AND AT SUCH A RATE AND IN SUCH A MANNER AS IN THE
SOLE OPINION OF THE COMPANY IS NECESSARY FOR COMPLETION WITHIN THE
TIME LIMIT AS SET OUT IN THE CONTRACT AS IT MAY HAVE BEEN ADJUSTED. In
no event shall construction operations be interrupted or slowed
because of the existence of any controversy or dispute between Company
and Contractor. If Contractor or its subcontractors cause a delay not
otherwise excused hereunder in the progress of the Work, Contractor
shall without additional cost to Company, work such overtime, acquire
necessary additional equipment or perform such other acts as may be
necessary to complete the Work within the time specified in the
Contract. IN SUCH EVENT, CONTRACTOR SHALL, WITHOUT ADDITIONAL COST TO
COMPANY, ADD SUCH MEN AND EQUIPMENT, INCLUDING ENTIRE ADDITIONAL
CREWS, AS MAY UNDER THE CIRCUMSTANCES BE REQUIRED, IN THE JUDGMENT OF
COMPANY OR COMPANY ' S REPRESENTATIVE, FOR THE COMPLETION OF THE WORK
WITHIN THE TIME SPECIFIED IN THE CONTRACT.
21.0 INSPECTION: AUTHORITY OF COMPANY'S REPRESENTATIVES AND INSPECTORS
21.1 Company contemplates and Contractor agrees to a thorough inspection by
Company of all of the work, including any Extra Work or Force Account
Work, and all materials furnished under this Contract.
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All such Work performed by Contractor and all materials furnished by
it hereunder shall be subject to the inspection of Inspectors
designated by the Company's Representative to determine whether the
Work and all parts thereof are being performed in strict compliance
with the terms, provisions, specifications, drawings and other
requirements of this Contract. Company's Representative shall be that
person or persons designated from time to time by Company to represent
Company in connection with all or any part of the Work. Company may
change, remove or add Company's Representatives or Inspectors at any
time and from time to time, upon written notice to Contractor, without
Contractor's approval. Contractor shall not rely upon any advice,
direction or representation of Inspectors or Company's Representative
in the manner of performing the Work, it being Contractor's obligation
and responsibility to make such decisions and to take such action as
is required to complete the Work strictly in accordance with the
specifications, drawings and other requirements of this Contract.
Contractor shall furnish Company's Representatives and Inspectors
access at all times to the Work wherever it is in progress and shall
provide them every reasonable facility for purpose of inspection.
Contractor shall at all times keep Company advised of its plan of
operation sufficiently in advance to permit proper inspection of the
Work. If any Work performed by Contractor or materials furnished by it
hereunder are defective or fail to comply with the specifications,
drawings or other requirements of this Contract, as determined by the
Company's Representative or Inspector, then Contractor shall, at its
own expense, immediately repair or replace the Work so found to be
defective in a manner complying with such specifications, drawings and
other requirements.
21.2 If the Company's Representative or Inspector requests it, Contractor
at anytime before acceptance of the Work by the Company shall remove
or uncover such portions of the finished Work as may be directed.
After examination, Contractor shall restore said portions of the Work
to the standards required by the specifications, drawings or other
requirements of the Contract. Should the Work thus exposed or examined
prove to be in accordance with all such specifications, drawings or
other requirements, the actual cost of uncovering or removing, and the
replacing of the covering or making good of the parts removed shall be
paid to Contractor by Company, provided Contractor shall have kept an
accurate record of such costs. Should the work so exposed or examined
prove to be not in accordance with such specifications, drawings or
other requirements, the uncovering or removing, and replacing of the
covering or the making good of the parts removed shall be at
Contractor's expense. If Contractor fails to replace any defective
Work or materials furnished by Contractor after reasonable notice, the
Company may cause such defective Work or
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materials to be replaced and all cost associated therewith shall be
paid by Contractor or deducted by Company from payments to Contractor
21.3 Should any Work be performed without giving notice and opportunity of
inspection, Contractor may be required to uncover such Work for
inspection. Cost of uncovering such Work shall be borne by the
Contractor, whether or not the Work is found acceptable.
21.4 If Contractor or any employee, agency or subcontractor of Contractor
believes or suspects that any action taken by an Inspector, Company's
Representative or any other person acting, or purporting to act, in
behalf of Company is willful, arbitrary or unreasonable, or is
motivated by malice, intent to defraud or any other motive not
connected with completion of Work in accordance with the requirements
of the Contract in the shortest possible time, Contractor shall,
within 72 hours of said action notify Company in writing, stating the
name of the person, the action taken and other pertinent details.
Contractor agrees that, if Contractor does not so notify Company
within the specified time, such lack of notification shall be a
defense to any Contractor claim based on such circumstances to the
extent that failure of notice caused prejudice to Company. CONTRACTOR
FURTHER AGREES TO READ THIS PARAGRAPH TO EVERY EMPLOYEE, AGENT AND
SUBCONTRACTOR PRIOR TO SUCH EMPLOYEE, AGENT OR SUBCONTRACTOR ENGAGING
IN ANY ACTIVITY RELATED TO THE WORK.
21.5 If Company is a partnership or if Company is causing the construction
of the work for a third party, Contractor shall permit the presence of
representatives of each partner or third party or each partner of a
third party if such third party is a partnership (in addition to the
presence of any other persons elsewhere provided for in this Contract)
at the Work site which representatives may act as observers at the
observing person's risk, cost and expense. Such observers shall have
no authority to waive any obligation under this Contract or to
otherwise act on behalf of, or represent, Company.
22.0 RADIOGRAPHIC INSPECTION
22.1 Radiographic examinations as well as physical tests on cut out welds,
shall be performed, as directed by Company, to insure acceptability of
the welding quality. The Standard of Acceptability shall be in
accordance with the latest edition of API Standard 1104. The extent
and frequency of said examinations shall equal or exceed the
Department of Transportation (D.O.T.) Part 192-Transportation of
Natural and Other Gas by Pipeline, Subpart E or any regulation
superceding or replacing Said Part 192. All tie-in welds and repaired
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welds shall be examined by radiography. Welds declared to be
unsatisfactory by the radiography technician and Company's
Representative shall be removed and replaced at the Contractor's
expense.
22.2 Company may require 100% X-Ray inspection of welds according to
Company's Specifications for Radiographic Inspection Services. Company
will endeavor to provide such X-Ray inspection so as not to delay the
progress of the Contractor, but Company will not be responsible for
delays occasioned by X-Ray inspection. Contractor shall cooperate in
keeping Company advised sufficiently in advance to permit proper
scheduling of X-Xxx xxxxx, and shall, at no additional compensation,
aid the X-Ray inspection crews, including towing and other assistance,
as required to facilitate maximum utilization of X-Xxx xxxxx.
23.0 NO WAIVER AUTHORIZATION
23.1 Neither Company's Representative nor Company's Inspectors, agents or
employees shall have any power or authority to waive any of the
provisions of this Contract or any of the obligations of the
Contractor hereunder. No waiver of any provision of this Contract or
other obligation of the Contractor shall be effective unless signed in
writing by an officer of the Company. Neither Company' s failure to
discover or reject work or material, furnished by the Contractor not
in strict accordance with the requirements of the Contract, nor any
payment to Contractor, nor partial or entire occupancy of the premises
by Company, nor acceptance of the Work by Company's Inspectors or
Representatives or by Company shall relieve Contractor of its
obligation to complete the Work strictly in accordance with the
specifications, drawings and other requirements of the Contract.
Should it be determined that work which has been accepted, or for
which payment has been made, does not comply with the requirements of
the Contract, Contractor shall, at his cost and expense, do such work
and take such action as is necessary to cause such nonconforming work
to comply strictly with the Contract requirements.
24.0 SITE EXAMINATION
24.1 Contractor represents that he has had an opportunity to examine the
entire Contract, including all Drawings, Specifications, and all other
written instruments incorporated by reference in the Contract, and has
fully acquainted himself with the general topography, soil structure,
subsurface conditions, obstructions, the site of the Work, and its
surroundings, that he has made all investigations essential to a full
understanding of the difficulties which may be encountered in
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performing the work, and that anything in the Contract or any
statements or information made or furnished by Company or its
representatives notwithstanding, Contractor will, regardless of any
such conditions pertaining to the Work, weather conditions, and the
effect thereof, the site of the Work or its surroundings, complete the
Work within the time specified and for the compensation stated in the
Contract and assume full and complete responsibility for any such
conditions pertaining to the Work, the site of the Work or its
surroundings, and all risks, including the risk of weather, in
connection therewith. Contractor represents that he has authority to
do business in the State or location in which the Work is to be
performed and that he is fully qualified and financially able to do
the Work in accordance with the Contract within the time specified.
25.0 MEASUREMENT OF WORK QUANTITIES
25.1 It is recognized that work quantities as set out in the Contract are
approximate. The Company's Representative may make the accurate
measurements to determine the quantities of various items of work
performed as the basis for the periodic and final payments or may
accept Contractor's estimate subject to adjustment by Company. The
Contractor, in all cases, will be paid the amounts set forth in the
Unit Price Summary only for the actual amount of work performed under
the Contract and no payment shall be due or made for Work which is not
actually performed. All such payments and measurement of Work
quantities shall be subject to final audit and verification, and
overpayments may be deducted by Company from any future payment to
Contractor under the Contract or any other agreement with Contractor
or Contractor shall, if directed by Company, refund to Company the
amount of any such overpayment.
26.0 CONSIDERATION
26.1 It is understood that the price or prices specified in the Contract
cover and include all compensation, payments and remuneration which
Contractor is to receive from the Company for the performance of the
Work covered by the Contract. Contractor has the right to review the
lay unit price pending construction drawings and route review. The
duties and obligations assumed by Contractor in return for such
consideration include, but are not limited to the following;
furnishing necessary materials, labor, tools and equipment; performing
all work described in the Contract; all overhead, profits,
superintendence, labor, use of equipment, loss, damage, increased cost
and expense arising from the nature of the Work, or from weather or
from any difficulties, foreseen or unforeseen, which may be
encountered during the prosecution of the Work until the acceptance
for payment
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by Company; all risks of every description connected with the
prosecution of the Work, as well as all expenses incurred in
consequence of the suspension or discontinuance of the Work according
to the Contract and indemnifying Company, (and its partners if Company
is a partnership) and Company's officers, agents and employees and
holding them harmless as provided herein.
27.0 INSPECTION OF CONTRACTOR'S RECORDS
27.1 Contractor shall maintain adequate costs records of all cost plus
Extra Work performed hereunder, and, upon request by the Company,
shall permit the Company or representatives of Company to inspect said
books and records for the purpose of determining the propriety and
accuracy of charges, claims and demands of the Contractor, its agents,
employees and subcontractors.
28.0 COMPANY'S RIGHT TO SUPPLEMENT WORK OR PARTIALLY TERMINATE CONTRACT
28.1 If, in the opinion of the Company, the Contractor shall, at any time,
refuse or neglect to supply sufficient personnel, supervision or
equipment of the proper quality, or fail in any respect to prosecute
the work with promptness and diligence, or fail to make sufficient
progress so as to assure completion of the work by the date fixed for
such completion (it being recognized and acknowledged by Contractor
that with respect to such completion date, time is of the essence to
Company), the Company may, upon giving five (5) days written notice to
Contractor and without prejudice to the other remedies available to
Company, supplement the work by providing such additional labor or
equipment (itself or through a contractor or contractors) as it deems
necessary to rectify such default or to complete the work by the date
fixed for such completion or withdraw from the Contract that portion
of the work, which, in Company's sole opinion, Contractor will be
unable to complete by the date fixed for such completion, and
terminate the Contract with respect thereto and complete the work on
such portion itself or through a contractor or contractors.
28.2 Not used.
28.3 Contractor shall not be entitled to receive the Contract consideration
for any labor or materials provided to supplement the work or for any
portions withdrawn from the Contract and terminated as herein
provided. If Company should supplement the work or withdraw a portion
of the work from this Contract and terminate the Contract with respect
thereto, and should the cost to the Company of such
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supplement or completion of the Work on such portion withdrawn,
including all Company overhead expenses, supervision expenses, and
reasonable attorney's fees, exceed the cost which Company would have
incurred had Contractor completed the work as required under the
Contract, Company may deduct such excess cost from any further payment
to Contractor or require Contractor, upon demand, to reimburse Company
for such excess cost. In the event Company exercises its right as
provided herein, to supplement the Work or withdraws a portion thereof
from the Contract and terminates the Contract with respect thereto,
Contractor shall continue to perform the remaining portion of the work
under the Contract. In such event, or should Company, for any other
reason permitted hereunder perform any portion of the work to be
performed by Contractor under this Contract or changes hereunder,
Contractor shall fully cooperate with Company and with other
contractors of Company and shall carefully coordinate its performance
of such remaining work with the Work of Company and such other
contractors, and Contractor shall not, under any circumstances, do
anything, or commit any acts, which will interfere with the
performance of the Work by Company or by any other contractor of
Company.
28.4 Not used.
29.0 TERMINATION OF WORK FOR DEFAULT OF CONTRACTOR
29.1 If a petition in bankruptcy should be filed by the Contractor; or if
the Contractor should make a general assignment for the benefit of
creditors, or if the Contractor becomes insolvent, or if a receiver
should be appointed on account of the insolvency of the Contractor, or
if the Contractor should refuse or fail to supply enough properly
skilled workmen or proper equipment or should fail to make prompt
payment to subcontractors, or should fail to pay for materials, labor
or services, or to pay any claims of third parties which are the
responsibility of Contractor, or should disregard laws, ordinances, or
the instructions of Company's Representative, or should permit liens,
attachments or other encumbrances to remain on the project or on the
property of Company after written instructions to have same removed,
or should otherwise be guilty of a substantial breach of any provision
of the Contract, then the Company may, without prejudice to any other
right or remedy and without notice to any surety, terminate this
Contract and take possession of the premises by giving Contractor
written notice of such termination.
29.2 In event of such termination, the Contractor shall not be entitled to
receive any further payment hereunder until the work is finished. If
the cost to Company of completing said Work, including all Company
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overhead expenses, supervision expenses, and reasonable attorney's
fees, is more than the aggregate sum obtained by applying the Unit
Price herein specified for the work so performed, Contractor shall pay
to Company, upon demand, the amount of such excess together with all
other damages suffered by Company as a result of Contractor's default,
or Company may withhold said amount from any payment due Contractor.
30.0 PAYMENT
30.1 On or as soon as practicable after the fifth (5th) and twentieth
(20th) days of each calendar month following commencement of work
hereunder, the Company's Representative in collaboration with
Contractor's Superintendent, shall make a written estimate of that
portion of the work which has been completed and omitted, if any. All
written estimates shall be signed by Company's Representative and
Contractor's representative in the field, after which Company's
Representative shall forward same to Company's office. Contractor
shall prepare and deliver to Company an invoice for that portion of
the work which has been completed, as determined by such written
estimate, and which has not been included in a prior invoice. The
invoice form shall include Contractor's name and address, invoice
number, invoice date, description of work, a breakdown of major
categories showing unit price by categories, percent of progress
complete, total amount of such invoice and ten percent (10%) of such
total amount which is to be retained by Company.
Upon approval of Company, Company shall pay Contractor ninety percent
(90%) of the total invoice amount less all payments made upon previous
estimates.
30.2 The remaining ten percent (10%) of the total invoice amount shall be
retained by Company until Contractor has completed all of the work to
be performed and all of the following conditions have been fulfilled:
30.2.1 Final acceptance by Company of all work performed hereunder.
30.2.2 Receipt by Company of affidavits or other evidence satisfactory
to the Company, that Contractor has paid all claims and bills for
labor, materials, equipment, services and supplies provided for
or in connection with the work hereunder.
30.2.3 Payment by Contractor of all claims of any character
whatsoever, for which Contractor is responsible under
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the Contract.
30.2.4 Receipt by Company of satisfactory evidence that Contractor has
paid any sales, use or other taxes pertaining to said work which
are imposed by any governmental body having jurisdiction where
said work is done.
30.2.5 Receipt by Company of a certificate from the Parish Clerk's
office in the parish where the work is performed in the, name of
both Contractor and Company showing that no liens, of any kind,
arising from said work have been recorded. Said Certificate must
be dated at least thirty (30) days after the date of final
acceptance of work by Company.
30.3 Notwithstanding, and in addition to, any other provision of this
Contract, any or all payments otherwise due Contractor from Company
may be withheld at any time and from time to time by Company, without
payment of interest, on account of defective work done and not
remedied by Contractor, unpaid bills or claims for labor, materials,
services and supplies or unpaid claims of any kind whatsoever which
Contractor has agreed to pay, or upon reasonable evidence indicating
that such unpaid bills or claims are outstanding. If and when the
cause or causes for withholding any such payment shall be remedied or
removed without cost to Company and evidence satisfactory to Company
of such remedy or removal has been presented to Company, the payments
withheld shall be made to Contractor.
30.4 If Contractor fails or refuses to remedy or remove any cause for
withholding such payment, within ten (10) days after delivery of
written notice to Contractor by Company to remedy or remove such
cause, Company may remedy or remove the same or cause the same to be
remedied and removed and may deduct the cost thereof together with
attorney's fees or any other expense, of whatsoever kind incurred by
Company in connection therewith, from the amount then or thereafter
due Contractor under the Contract or pursue any remedy otherwise
provided by this Contract. In the event such cost should exceed the
balance due Contractor, Contractor and its sureties shall be liable
for, and shall pay, the difference to the Company. If however,
Contractor notifies Company in writing within said period of time that
it reasonably and in good faith contests the validity of any such
claims, Contractor may defer remedial action pending a settlement with
claimant satisfactory to Company or until judgment is rendered against
Contractor or Company therefore, but
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Company shall nevertheless be entitled to withhold payment of a sum
sufficient in its judgment to satisfy amply the amount of-any and all
such claims, including, in addition, an ample amount to cover all
costs which may be incurred by Company in connection therewith,
including all attorney's fees incurred.
30.5 Company shall have the right to make payment of any sums withheld
under this Section or other provisions of the Contractor retained
under Section 30.3 without giving notice thereof to any surety or
sureties on any bond of the Contractor or any subcontractor, and such
sureties, liability under said bond or bonds shall not in any way be
released or diminished on account of Company's making any payments of
any such sums without notice to the surety or sureties. Neither final
acceptance of the Work, final payment hereunder, and/or partial or
entire use by Company of the Work shall relieve Contractor of any
unperformed or continuing obligation under the Contract, including,
without limitation, Contractor's obligations to protect, indemnify and
hold harmless Company, its officers, agents and employees as herein
provided.
30.6 DISPUTES
All disputes between Company and Contractor arising under or relating
to the Agreement shall be resolved under this Article. The term
"dispute" means a demand by either party resulting from a disagreement
between Company and Contractor, which seeks an adjustment or
interpretation of Agreement terms, or other relief. A demand shall be
made in writing and shall contain complete information necessary for
proper evaluation by the other party, otherwise it may be returned
without action.
At a minimum the demand submitted shall state the facts upon which the
demand is based, how or in what way the circumstances differ from what
was undertaken contractually and the Agreement provisions that provide
for the relief being sought. If the demand seeks monetary payment, it
shall be supported by a detailed breakdown similar to that
accompanying a Change request. A party's written decision on a demand
shall be final and conclusive, unless within seven (7) calendar days
after receipt of the written decision the aggrieved party furnishes a
written appeal to the other party. A written appeal shall be precedent
to any arbitration or mediation. Contractor shall proceed diligently
with performance under the Agreement and shall comply with any written
decision of Company pending final resolution of its demands so long as
Company acts in good faith and promptly provides any undisputed
entitlement to Contractor.
Any dispute between the Parties preserved by appeal shall be submitted
to mediation under the construction industry rules of the
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American Arbitration Association (AAA), and then failing resolution by
mediation, to arbitration under the same rules except as modified
herein. Unless the AAA fast track rules apply, three arbitrators shall
be appointed by means of each party nominating an arbitrator within 20
days of filing of the arbitration demand with AAA, and then the
appointees of the parties choosing the third arbitrator within an
additional 20 days. If either a party or the two appointees are unable
to make an appointment within the required time, the appointment shall
be made by AAA. All members of the panel shall be neutral upon
appointment. The location of the arbitration shall be New Orleans,
Louisiana. Each Party shall pay any and all costs associated with the
arbitrator selected by that Party. Each Party shall be responsible for
fifty percent (50%) of the costs associated with the third arbitrator.
The Parties shall urge the arbitrators to provide a written decision
to the Parties within thirty (30) days of the arbitration hearing.
31.0 ORAL AGREEMENTS
31.1 This Contract sets forth the entire agreement between Company and
Contractor with respect to the Work and no oral agreements heretofore
made shall be binding, and no modification of, or supplement to this
Contract shall be made except by written agreement signed by
Contractor and an officer of Company. The headings to each of the
various Sections and Articles of this Contract are for convenience
only and shall have no effect on, or be deemed a part of, the text of
the Contract.
32.0 BONDS
32.1 N/A
32.2 N/A
32.3 N/A
32.4 N/A
33.0 LIABILITY OF COMPANY
33.1 Contractor agrees that its right to recover for any claim shall be
limited solely to the assets of Company and as part of the
consideration for this Contract, Contractor hereby waives any and all
rights to institute a legal proceeding or to assert a claim, in any
manner, for any demand, cause of action, cost, expense, action,
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judgment or-damage in any manner arising out of, or in connection
with, this Contract, against any partner or partners of Company
individually, or against any entity -affiliated or associated with any
such partner.
34.0 GUARANTEE
34.1 WARRANTY
All material and equipment incorporated into Work covered by the
Agreement shall be new and without defects in workmanship and
materials. All workmanship shall be in accordance with accepted
construction practices and of a quality accepted within the industry.
Contractor warrants all equipment, materials and labor, including
required pipeline depth of cover, furnished or performed under the
Agreement against defects in materials and workmanship for a period of
one (1) year from and after substantial completion of the Work.
Warranty regarding depth of cover will apply to the entire pipeline,
unless such pipeline sections, regarding placement/necessity of
required pipeline weighting, cannot be mutually agreed upon between
the contractor and company. Upon receipt of written notice from
Company of any defect in any such equipment, material, labor or
pipeline cover discovered during the applicable warranty period, the
affected item or parts thereof shall be repaired or replaced by
Contractor at Contractor's expense at a time acceptable to Company. If
within a reasonable time after Company gives the Contractor notice of
defect, the Contractor neglects to make or undertake with due
diligence to make necessary correction, Company is hereby authorized
to make the correction itself or order the Work to be done by a third
party, and the cost of the correction shall be promptly paid by
Contractor upon receipt of an invoice from Company for the same.
35.0 EQUAL OPPORTUNITY
35.1 Contractor agrees to comply with all of the requirements of 41 CFR
Part 60-1 and the provisions of the standard clause prescribed there
under, dealing with equal employment opportunity, which provisions of
said standard clause are specifically incorporated herein by reference
to have the same force and effect as if set out in their entirety.
36.0 CERTIFICATION OF NON-STANDARD FACILITIES
36.1 Contractor certifies that it does not maintain nor provide its
employees any segregated facilities at any of its establishments, and
that it does not permit its employees to perform their services at any
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location, under Contractor's control, where segregated facilities are
maintained. Contractor certifies further that it will not maintain or
provide for its employees any segregated facilities at any of its
establishments, and that it will not permit its employees to perform
their services at any location under Contractor's control, where
segregated facilities are maintained. Contractor agrees that a breach
of this certification is a violation of the Equal opportunity Clause.
As used in this certification, the term "Segregated facilities" means
any waiting rooms, work areas, rest rooms and wash rooms, restaurants,
and other eating areas, time clocks, locker rooms and other storage or
dressing areas, parking lots, drinking fountains, recreation or
entertainment areas, transportation and housing facilities provided
for employees which are segregated by explicit directive or are in
fact segregated on the basis or race, creed, color, age, gender or
national origin, because of habit or custom or otherwise. Contractor
further agrees that (except where it has obtained identical
certifications from proposed subcontractors for specific time periods)
Contractor will obtain identical certifications from proposed
subcontractors prior to the award of a subcontract exceeding Ten
Thousand and No/100 Dollars ($10,000.00) unless such subcontractors
are exempt from the provisions of the Equal Opportunity Clause; and
that Contractor will retain such certifications in his files.
37.0 HANDICAPPED WORKERS
37.1 Contractor agrees to comply with all of the requirements of 41 CFR
Part 60-741 and the provisions of the standard contract clause
prescribed there under, dealing with the employment of qualified
handicapped individuals, which provisions of said standard contract
clause are specifically incorporated herein by reference to have the
same force and effect as if set out herein in their entirety.
38.0 DISABLED VETERANS AND VETERANS OF THE VIETNAM ERA
38.1 Contractor agrees to comply with all of the requirements of 41 CFR
Part 60-250 and the provisions of the standard contract clause
prescribed there under, dealing with the employment of qualified
disabled veterans and veterans of the Vietnam Era, which provisions of
said standard contract clause are specifically incorporated herein by
reference to have the same force and effect as is set out herein in
their entirety.
39.0 CONTRACTOR ASSURANCES
Unless exempted, Contractor hereby certifies that:
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(a) It has adopted and implemented a written anti-drug plan, which
complies with the procedures and regulations as outlined in 49
CFR 199. Any and all employees, agents, subcontractors or
consultants working for Contractor shall comply with Contractor's
plan.
(b) It understands, under penalty of law, the terms and conditions of
the general National Pollutant Discharge Elimination System
(NPDES) permit that authorizes the storm water runoff, and the
requirements to reduce the environmental impact there from
associated with the scope of work as herein described, shall be
typed on Company letterhead and returned with the executed
Pipeline Construction Contract (see Special Conditions).
(c) It has adopted and implemented a written Operator Qualification
Plan as outline in 49 CFR 192. Such plan is limited only to work
covered and required under 49 CFR 192. Any and all employee's
agents, subcontractors or consultants work for Contractor shall
comply with Contractors plan.
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