EXHIBIT 10.16
REGENCY INTRASTATE GAS LLC
PIPELINE CONSTRUCTION CONTRACT
This Contract is made and entered into this 2nd day of May, 2005, at Dallas,
Texas, by and between Regency Gas Intrastate LLC, a Delaware limited liability
company (hereinafter called " Company") and X.X. Xxxxx Co., a ______________
(hereinafter called " Contractor").
Company has advised Contractor that Company desires to have constructed certain
24" natural gas pipeline with facilities, beginning at [Describe].
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 mutual 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, that may be encountered in the performance of the work.
2. Contractor hereby acknowledges that Company has furnished to
Contractor the Company's General Conditions, the Pipeline Construction
Specifications, the 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 are the Pipeline
Construction Bid Specifications and a list of the Project Drawings.
This Pipeline Construction Contract, the Documents, the Pipeline
Construction Bid Specification 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 the Documents, the Pipeline Construction Bid
Specification and the Project Drawings are all 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
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Company Initials: DJJ
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before May 2, 2005 and all Work under this Contract shall be completed
on or before July 1, 2005, Mechanical Completion being June 24, 2005
(Xxxxxxxx to Xxxxxx), Mechanical Completion being October 21, 2005
(Xxxxxx to Mainline) Final Clean-up, December 31, 2005; provided,
however, that Company may postpone the above starting date pending the
issuance of any necessary approvals of governmental authorities,
availability of rights-of-way, or receipt of adequate amounts of
material 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 the specified starting
date and providing a subsequent starting date. The subsequent
completion dates 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 Contract, 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.
10. Capitalized terms used but not defined herein are defined in Article
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1.0 of the General Conditions and are used herein with the meanings
ascribed to them therein.
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 INTRASTATE GAS LLC
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
BY
/s/ Xxxxxx (Illegible) Vice President - Operations and Engineering
-------------------------------- ---------------------------------------------
SECRETARY TITLE
Contractor Initials: CSH
Company Initials: DJJ
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REGENCY INTRASTATE GAS LLC
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 Intrastate Gas LLC
000 Xxx Xxxxxx
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Company Initials: DJJ
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Xxxxxx, XX 00000
000-000-0000
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Company Initials: DJJ
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REGENCY INTRASTATE GAS LLC
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
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25.0 Measurement of Work Quantities
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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Company Initials: DJJ
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1.0 DEFINITIONS, CONSTRUCTION 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. The exercise by Company of any
right granted under this Contract shall not limit or affect Company's
ability to exercise any other rights under this Contract; 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 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
Intrastate Gas LLC 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 have the meaning ascribed to
such term in paragraph 2 of the Pipeline Construction Contract.
1.5 The term "Contractor" as used in the Contract shall mean X. X. Xxxxx
Co. and any successor thereto.
1.6 The term "crew" as used in the Contract shall mean a group of workmen,
including supervisory personnel, operators and related equipment,
engaged in a single specific task in the construction of the
facilities.
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Company Initials: DJJ
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1.7 The term "Extra Work" as used in the Contract shall have the meaning
ascribed to such term in paragraph 14.2 of these General Conditions.
1.8 The term "Construction Bid Sheet" and the term "Unit Price Summary" as
used herein shall mean that portion of the Contract entitled
Construction Bid Sheet" and "Unit Price Summary," respectively, or any
other provision of the Contract however entitled that sets forth the
prices that 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 applicable law or statute or any
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 subsequent to the
Effective Date that adversely affects (in cost or time or both) the
ability of Company or Contractor to perform its obligations hereunder;
provided, however, that a change in any income tax law shall not
constitute a Change in Law. 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.
1.14 "Change" shall have the meaning ascribed to such term in paragraph
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14.4 of these General Conditions.
1.15 "Superintendant" shall have the meaning ascribed to such term in
paragraph 4.2 of these General Conditions.
1.16 "Extra Work" shall have the meaning ascribed to such term in paragraph
14.2 of these General Conditions.
1.17 "Force Account Work" and "Force Account Basis" shall have the meanings
ascribed to such terms in paragraph 14.2 of these General Conditions.
1.18 "Omitted Work" shall have the meaning ascribed to such term in
paragraph 14.3 of these General Conditions.
2.0 MATERIALS, EQUIPMENT and EMPLOYEES FURNISHED BY CONTRACTOR
2.1 Except to the extent otherwise expressly provided in paragraph 3.1 of
these General Conditions and unless and except as otherwise provided
herein, Contractor shall provide and pay for all construction related
materials and consumable supplies, labor, tools, equipment, water,
light, power, transportation and other facilities necessary for the
execution, testing and completion of the Work.
2.2 WARRANTY
All material and equipment incorporated into Work covered by the
Contract 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
Contract against defects in materials and workmanship for a period of
one (1) year from and after substantial completion of the Work. This
warranty regarding depth of cover will apply to the entire pipeline,
save and except such pipeline sections as to which Company agrees in
writing that it does not apply. 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,
Contractor shall repair or replace the affected item or parts thereof
at Contractor's expense at a time acceptable to Company. If within a
reasonable time after Company gives the Contractor notice of a defect,
Contractor neglects to make or undertake with due diligence to make
the necessary repair or replacement, Company is hereby authorized to
make the correction itself or order the Work to be done
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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 that, 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 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 Applicable Law regarding
Contractor's employment practices.
2.6 Contractor 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, the nearest suitable Company
warehouses or storage yards or other mutually acceptable points of
delivery, all pipe, valves, fittings, and other materials that are
intended to become a permanent part of the facilities to be
constructed hereunder.
3.2 Contractor shall be responsible for receiving any and all materials
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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 that 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
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 at the Dubach Facility Yard,
without undue delay after completion of the Work, all extra and
surplus materials delivered by Company ;that were not used to complete
the Work.
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, 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
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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 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 its experience 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 has
furnished Company with copies of the policies with all endorsements
prior to commencement of any Work hereunder, including a copy of
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Company Initials: DJJ
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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. Coverages shall apply to all employees
in accordance with the benefits afforded by the statutory
workers' 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 (i) the termination of any policy
(ii) the implementation of any changes therein that restrict or reduce
the coverage provided and (iii) any change of the insured or the
beneficiary thereunder. In the event of the Contractor's failure 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
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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
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 insurance coverages, as well as any other insurance
coverages that Contractor may consider necessary, all to be endorsed
with the waiver of subrogation wording above, and any deficiency in
the coverages, 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
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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 ("Claims"); provided, however, that
Contractor's contractual obligation of indemnity shall not extend to
the percentage, if any, of the claimant's Claims attributable to
Company's negligence, fault, breach of contract or warranty or to
matters of strict liability imposed on Company as a matter of law. Any
Claim submitted to Company by a third party that relates in any way to
the performance of Work under this Contract 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 hereto shall work together to resolve the
Claim, notwithstanding any obligation of the Contractor for
indemnification of Company.
7.2 Contractor shall be 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. Company and its
agents have provided materials giving the approximate location of many
of these crossings. Contractor shall not rely on any of these
approximations when actual excavation begins. It shall be Contractor's
responsibility to avoid damage to these foreign crossings and their
associated ROW and to repair damage to these foreign crossings and
their associated ROW to the specifications required by the owner. It
shall be Contractor's 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 be liable to Contractor for any indirect,
special, incidental or consequential loss or damage including without
limitation loss of profits or revenue, loss of opportunity or use,
cost of capital, or like items of loss or damage; and Contractor
hereby releases Company therefrom.
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8.0 TAXES, LIENS AND LEGAL REQUIREMENTS
8.1 Contractor shall promptly and satisfactorily settle and pay all Claims
for labor, equipment, materials, supplies and any and all other Claims
of every nature that it is obligated to pay hereunder and shall
furnish evidence satisfactory to Company that all such 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 any premises on which Work or materials relating to the
Work are located for any Claim whatsoever against the Contractor,
provided that Contractor is being paid on a current basis pursuant to
this Contract. Any such lien, attachment or other encumbrance, until
it is removed by Contractor at Contractor's sole expense, shall
preclude any and all Claims by Contractor for any payment by Company
whatsoever under or by virtue of this Contract. If 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 and pay all federal, state, or municipal
laws and regulations regarding taxes of all kinds now in effect and
those becoming effective during the term of this Contract, including,
without limitation, Social Security Taxes, State Unemployment
Insurance Taxes, Gross Receipts Taxes, Withholding Taxes, Xxxxxxx'x
Compensation Taxes, Income Tax Laws, and will furnish, as requested by
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 In any jurisdiction in which the Work or any part of the Work is to be
performed and in which a stipulation against mechanic's liens is
recognized, Contractor will enter into such a stipulation to the
maximum extent permitted by law, and Contractor agrees that such
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stipulation may be recorded in the office or offices provided 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 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
Company, in which event, Company agrees that any subsequent delay
suffered by Contractor by reason or failure of Company to secure
adequate material shall entitle Contractor to an equitable adjustment
of the time and payment provisions of this
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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
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" that 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 If 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 and such party shall give notice and full
particulars regarding such force majeure in writing to the other party
within two (2) working days after the occurrence of the cause thereof,
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 inability so caused, 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, orders, restraints or
prohibitions by any court, board, department, commission or agency of
the United States or of any state, including without limitation any
arrests and restraints by rules and people, civil disturbances,
explosions, and inability with reasonable diligence to obtain pipe or
other essential
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materials. Labor disputes such as employee strikes or work slowdowns
shall not be considered force majeure. Any event of RAIN, FLOOD, SNOW,
ICE OR OTHER ADVERSE WEATHER CONDITIONS shall not be considered as
Force Majeure, unless the event is greater than the maximum event
during the preceding 10 years...
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 that 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 Contract ("Changes"), and Contractor shall have the
right to an equitable adjustment of its compensation under this
Contract, the schedule and other affected terms of this Contract to
reflect such Changes. If Contractor believes that it has encountered a
Change and that such Change affects the price, schedule or other
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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 shall attempt in good faith to agree in writing upon an
equitable adjustment of the Unit Prices, the Unit Rates, the other
compensation to be paid to Contractor hereunder, the schedule and
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 incurred. The agreed adjustments will be incorporated
into the Contract 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
resolved in dispute resolution proceedings. In the absence of
agreement, Company can direct Contractor to proceed.
14.5 If Company does not consider the circumstances described in
Contractor's written notice to constitute a Change, Contractor shall
be required to proceed without delay. Should the Contractor continue
to believe that the circumstances described in its written notice
constitutes a Change, the matter shall be resolved in accordance with
the dispute resolution provisions of this Contract.
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 to be 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 or (ii)
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. If 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
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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) a "Disputed Extra Work Order" executed by Company's
Representative. 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 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 quantity of
such Work shall not in any way be construed as approving or proving
the validity of any such claim.
15.3 Company's Representative is not authorized orally to waive, amend, or
release any obligation of the Contractor under the Contract or orally
to approve an Agreed Extra Work Order, and Contractor shall not rely
upon any such alleged oral 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 an Agreed Extra Work Order,
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 an Agreed Extra Work
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Order 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 Company and
Contractor in writing. Subject to the terms and conditions
hereof, for any Extra Work performed or materials furnished in
addition to that or those 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
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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, that 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 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.
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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 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
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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. 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
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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
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 for
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, 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
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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
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 that has been accepted,
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or for which payment has been made, does not comply with the
requirements of the Contract, Contractor shall, at its 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 it 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 itself with the general topography, soil structure,
subsurface conditions, obstructions, the site of the Work, and its
surroundings, that it has made all investigations essential to a full
understanding of the difficulties that may be encountered in
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 it has authority to
do business in the State or location in which the Work is to be
performed and that it 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 that 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
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26.1 It is understood that the price or prices specified in the Contract
cover and include all compensation, payments and remuneration that
Contractor is to receive from the Company for the performance of the
Work covered by the Contract. 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, that may be encountered during the prosecution of the Work
until the acceptance for payment 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, that, in Company's sole
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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 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 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 that 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. If 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, that
will interfere with the performance of the Work by Company or by any
other contractor of Company.
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 if the Contractor should fail
to make prompt payment to subcontractors, or if the Contractor should
fail to pay for materials, labor or services or to pay any claims of
third parties that are the responsibility of Contractor, or if the
Contractor should disregard laws, ordinances, or the instructions of
Company's Representative, or if the Contractor should permit liens,
attachments or other encumbrances to remain on the project or on
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Company Initials: DJJ
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the property of Company after written instructions to have same
removed, or if the Contractor 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 the 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
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 that 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 that has been completed, as determined by such written
estimate, and that 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:
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Company Initials: DJJ
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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 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 that
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
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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. If such cost should exceed the
balance due Contractor, Contractor 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 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 that 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 Section 30.3 or other provisions of the Contract 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, nor 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 Contract shall be resolved under this Article. The term
"dispute" means a demand by either party resulting from a disagreement
between Company and Contractor that seeks an adjustment or
interpretation of Contract 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 that which was undertaken contractually and
the Contract 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
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Company Initials: DJJ
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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 Contract 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 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 No performance or other bond is required to be provided by Contractor
in connection with its performance of the Work under this Contract.
33.0 LIABILITY OF COMPANY
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33.1 Contractor agrees that its right to recover for any claim against the
Company 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,
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 EQUAL OPPORTUNITY
34.1 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 (the "Equal
Opportunity Clause"), 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.
35.0 CERTIFICATION OF NON-STANDARD FACILITIES
35.1 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
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 that 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.
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Company Initials: DJJ
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36.0 HANDICAPPED WORKERS
36.1 Contractor agrees to comply with all of the requirements of 41 CFR
Part 60-741 and the provisions of the standard contract clause
prescribed thereunder, 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.
37.0 DISABLED VETERANS AND VETERANS OF THE VIETNAM ERA
37.1 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.
38.0 CONTRACTOR ASSURANCES
Unless exempted, Contractor hereby certifies that:
(a) It has adopted and implemented a written anti-drug plan that
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 therefrom
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 who work for Contractor
shall comply with Contractor's plan.
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Company Initials: DJJ
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