EXHIBIT 10.9
CONTRACT NO. ES-TGC-115
ENGINEERING DESIGN SERVICES AGREEMENT
BETWEEN
TRUNKLINE GAS COMPANY
AND
IDS TECHNICAL SERVICES
TABLE OF CONTENTS
ARTICLE I Page
DEFINITIONS........................................ 1
1.1 Affiliates.......................... 1
1.2 Engineer............................ 1
1.3 Crew................................ 2
1.4 Site................................ 2
1.5 Specifications...................... 2
1.6 Work................................ 2
ARTICLE 2
EXHIBITS........................................... 2
2.1.1............Exhibit A.................... 2
2.1.2............Exhibit B.................... 2
2.1.3............Exhibit C.................... 2
2.1.4............Exhibit D.................... 2
2.1.5............Exhibit E.................... 2
2.1.6............Exhibit F.................... 2
ARTICLE 3
ACTIVATION ORDER.............................. 3
ARTICLE 4
MANNER OF PERFORMANCE OF THE WORK............. 4
ARTICLE 5
COMPLIANCE WITH PLANS AND SPECIFICATIONS...... 6
ARTICLE 6
CONSIDERATION................................. 6
ARTICLE 7
STATE AND LOCAL TAXES......................... 7
ARTICLE 8
INSURANCE..................................... 8
ARTICLE 9
RIGHT TO SUSPEND THE WORK OR TERMINATE
AGREEMENT.. ................................ 10
ARTICLE 10
CONTRACTOR'S RECORD OF CONSTRUCTION COSTS.......... 10
ARTICLE 1 1
WORK NOT TO INTERFERE WITH COMPANY OPERATIONS...... 11
ARTICLE 12
ASSIGNMENT AND SUBCONTRACTING...................... 11
ARTICLE 13
DRUG TESTING/ALCOHOL............................... 11
ARTICLE 14
NOTICES............................................ 12
ARTICLE 15
ARBITRATION........................................ 12
ARTICLE 16
ETHICS............................................. 13
ARTICLE 17
MISCELLANEOUS PROVISIONS........................... 13
EXHIBIT A
FORM OF ACTIVATION ORDER........................... A - I
EXHIBIT B
STANDARDS AND SPECIFICATIONS ...................... B - I
EXHIBIT C
CONTRACTOR'S CURRENT LABOR AND EQUIPMENT RATE SCHEDULE AND/OR
UNIT PRICE LISTS......................... C - I
EXHIBIT D
SPECIAL INSTRUCTIONS............................... D - I
EXHIBIT E
NOTICE INFORMATION................................. E - I
EXHIBIT F
INSURANCE REQUIREMENTS............................. F - I
ENGINEERING SERVICES AGREEMENT
This Engineering Services Agreement ("Agreement") is made and entered into
this 25th day of July, 1994, by and between IDS TECHNICAL SERVICES,
("CONTRACTOR"),A Texas Corporation, and TRUNKLINE GAS COMPANY, ("COMPANY"),A
Delaware Corporation;
WITNESSETH:
WHEREAS, Contractor represents that it is in the business of providing
Engineering Design Services; and,
WHEREAS, the Company desires to enter into this Agreement to enable
Company to utilize Contractor, on an "as needed" basis, to perform the Work and
other Work for which Contractor is qualified, pursuant to this Agreement and a
work order ("ACTIVATION ORDER") to be executed at the time of performance by
Contractor and Company; and,
WHEREAS, Contractor desires to enter into this Agreement and is willing,
on an "as available" basis, to perform the Work for Company, pursuant to this
Agreement, including the relevant Activation Order.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
Contractor and Company agree as follows:
ARTICLE I
DEFINITIONS
In this Agreement the following definitions shall apply:
1.1 Affiliates shall mean any corporation, partnership, joint venture,
division or other legal entity, directly or indirectly, through one or more
intermediaries, controlling, controlled by, or under common control with
Company. Without limiting the foregoing, Panhandle Eastern Corporation and all
of its subsidiaries of every tier are Affiliates.
1.2 Engineer shall mean Company's authorized engineer in charge of the
Work covered by an Activation Order, acting directly or through field or
resident engineers or inspectors, such field or resident engineers or inspectors
acting within the scope of the particular duties assigned to them.
1.3 Crew shall mean a complete complement of personnel, which ordinarily
performs one kind of task incident to the performance of Work under the
Agreement.
1.4 Site shall mean the location or immediate area of the Work.
1.5 Specifications, if applicable, shall mean the Standards and
Specifications contained in Exhibit B hereto.
1.6 Work shall mean all of those personnel, tasks, services, labor,
supervision, materials, equipment, supplies, transportation and all other
tangible or material things required to be undertaken, produced, delivered, or
furnished by Contractor or any of its subcontractors of every tier as specified
in or reasonably inferable from this Agreement and the Exhibits, and shall
include items, services or tasks incidental or preliminary thereto, including
procurement of any necessary permits, licenses, or agreements or other matters
related to the Work not otherwise furnished by Company. The Work shall be more
particularly described in the relevant Activation Order.
ARTICLE 2
E XHIBITS
2.1 The following Exhibits are part of this Agreement whether or not
physically attached hereto:
2.1.1 Exhibit A - Form of Activation Order.
2.1.2 Exhibit B - Standards and Specifications.
2.1.3 Exhibit C - Contractor's current Labor and Equipment Rate
Schedule and/or Unit Price Lists.
2.1.4 Exhibit D - Special Instructions.
2.1.5 Exhibit E - Notice Information.
2.1.6 Exhibit F - Insurance Requirements.
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2.2 Should any conflict exist between this Agreement and the Exhibits
attached hereto, this Agreement shall prevail except to the extent a specific
exception to this Agreement is stated in Exhibit D, in which case the exception
shall prevail. All provisions of Exhibit D shall take precedence over Exhibits A
and B. In the event of any conflict, omission, discrepancy, or ambiguity in the
Agreement, the resolution of which is not specifically provided for, the
decision of Engineer shall govern the performance of the Work, and to the extent
such Work is not within the reasonable intent of the Agreement, such Work shall
be paid for as extra work.
ARTICLE 3
ACTIVATION ORDER
3.1 All Work shall be identified in an Activation Order which shall
reference this Agreement and be signed by Contractor and Company prior to the
commencement of the Work. From time to time as Company requires Work to be
performed by Contractor, Company shall issue an Activation Order for the
performance of the Work.
3.2 Company shall prepare the Activation Order, clearly describing the
scope of Work to be provided, any insurance requirements in addition to those
provided in this Agreement, and any special instructions or conditions. Upon
execution of the Activation Order by Company and Contractor, Contractor shall
perform the Work.
3.3 The Activation Order may specify changes, additions, deletions or
qualifications to the Standards and Specifications contained in Exhibit B,
Contractor's current Labor and Equipment Rate Schedule and/or Unit Price Lists
contained in Exhibit C, and the Special Instructions contained in Exhibit D. The
Activation Order shall not change, delete or amend this Agreement (including the
Exhibits thereto) other than Section 7. 1, and Exhibits B, C and D. If there is
a conflict between the terms of the executed Activation Order and the terms of
this Agreement, other than Section 7.1 and Exhibits B, C and D, the terms of
this Agreement shall prevail over the terms of the executed Activation Order.
3.4 The provisions contained in any Activation Order shall be effective
only for that Activation Order, and shall not affect any past, current or future
Work under any other Activation Order.
3.5 All Work shall be performed in accordance with the Standards and
Specifications contained in Exhibit B.
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3.6 Company shall have the right to secure performance and/or payment
bonds to guarantee the performance of the Work by Contractor. Any bonding
requirements shall be stated in the Activation Order.
3.7 Company shall have the right to retain ten percent (10%) of all sums
due Contractor. Company shall hold the ten percent (10%) retainage pending final
acceptance of the Work by Companv and the furnishing by Contractor of evidence
satisfactory to Company that Contractor has made payment of all bills and claims
of any nature, after which the net amount owing Contractor shall be paid;
provided, however, Company at its option may pay to Contractor any part of such
retained sum which Company believes is not necessary to protect Company for
uncompleted Work or unpaid material or labor bills, or other claims of which
Company has knowledge. Notwithstanding anything contained in the foregoing,
Company shall have the right, at its sole discretion, to withhold any of such
retainage for a minimum period, after completion of the Work, equal to the
greater of thirty (30) days, or the period during which, under the laws of the
applicable jurisdiction, a mechanic's and/or materialman's lien could properly
be perfected by the filing of the necessary lien documents in the appropriate
governmental office. Any retainage requirement shall be stated in the Activation
Order.
3.8 Contractor agrees to commence the Work on the date specified in the
Activation Order and to pursue it diligently so that the Work will be completed
by the date or within the time specified, or if no date or time is specified,
then as quickly as is reasonably possible.
3.9 The Activation Order shall be binding only when executed by
representatives of Company and Contractor authorized to commit for such Work and
the estimated cost of such Work.
3.10 Nothing contained herein shall preclude the parties, by means of
mutually agreed upon amendments to this Agreement, from permanently altering in
whole or in part the Labor and Equipment Rate Schedule and/or Unit Price Lists
contained in Exhibit C hereof.
ARTICLE 4
MANNER OF PERFORMANCE OF THE WORK
4.1 Contractor agrees to furnish the required materials, supplies,
supervision, labor, equipment, implements, machines, trucks, and all other
things necessary for and to do and perform the Work. Contractor is to perform
the Work as an independent contractor, free of the control and/or supervision of
Company as to means and method of performing same. All persons engaged in the
performance of the Work shall be solely the servants or employees of Contractor
or of the relevant subcontractor, where subcontracting is
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authorized by Company. Engineer shall have the right to make such inspection of
the Work as is necessary to insure compliance by Contractor with the obligations
assumed hereunder, but Company shall not be deemed obligated to perform any such
inspection. Engineer shall accept the Work performed by Contractor or reject
such Work if it is not in compliance with this Agreement.
4.2 Contractor shall exercise a high degree of skill, care, and diligence
in the performance of the Work. Contractor warrants that the Work shall be
performed in a good and workmanlike manner and in strict accordance with this
Agreement.
4.3 Contractor at all times shall enforce strict discipline and good order
among its employees and those of its subcontractors. Company shall have the
right at all times to require the removal from the Work and the Site, of any
employee of Contractor or any subcontractor if that employee, in Company's good
faith judgment, appears unqualified or otherwise unfit to continue.
4.4 If required by Company, Contractor shall inform Company in writing of
the names of the personnel to be assigned to the Work, and shall not remove or
replace such personnel without written notice to Engineer.
4.5 Contractor shall give due consideration to the interest of property
owners and tenants wherever involved and shall conduct the Work in a manner
causing minimum inconvenience and damage. Contractor shall provide and maintain
a safe condition at any crossing of public roads and/or private roads, and any
entrances that may be opened by the Contractor to perform the Work.
4.6 If Contractor is delayed by reason of Company's failure to supply
Contractor with any necessary information, access to right-of-way or any of the
materials, machinery, or equipment specified by this Agreement to be supplied by
Company, the completion date of the Work provided for in the Activation Order
shall be extended to the extent that Contractor is delayed in carrying on the
Work by reason of such failure by Company. In the event Contractor incurs
additional costs as a result of such delay, the consideration shall be equitably
adjusted. Such extension and adjustment to the consideration shall constitute
Contractor's sole and exclusive remedy for damages caused by reason of such
delay. The foregoing notwithstanding, if such delay results in Contractor's
being totally unable to proceed with the Work, such delay will be considered as
a suspension required by Company within the meaning of Article 9.
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4.7 Contractor shall not open up work to the prejudice of Work already
started and shall arrange its Work and dispose of materials in a manner to
insure the least possible interference with and inconvenience to the landowners
on whose property the Work is being performed.
4.8 Contractor shall employ such number of Crews as are reasonably
necessary to perform the Work within the time allotted; provided, that Company
may, should this Agreement be for Work to be furnished on a fixed price basis,
at no extra cost to Company, require the employment of additional Crews if, in
its judgment, it is necessary in order to complete the Work within the time
provided.
ARTICLE 5
COMPLIANCE WITH PLANS AND SPECIFICATIONS
5.1 Unless otherwise agreed in writing, all materials and supplies
required to be furnished by Contractor shall conform to and be in accordance
with the requirements set out in the Exhibits, plus any detailed drawings for
the Work which may be prepared and furnished by Company, all of which shall be
furnished in advance of their actual need in order that the Work may be
performed with due diligence.
5.2 If any Work performed by Contractor is determined by Engineer not to
have been performed in a good and workmanlike manner or otherwise not to be in
compliance with this Agreement, Contractor shall, at its own expense,
immediately repair or replace the defective Work in a manner complying with this
Agreement.
ARTICLE 6
CONSIDERATION
6.1 Company shall pay Contractor for the Work performed and all materials
supplied by Contractor hereunder in the amount and manner provided in Exhibit C
and the Activation Order.
6.2 Exhibit C and the Activation Order shall cover and include all the
considerations to be received by Contractor from Company for the performance of
the Work described in the Activation Order, whether or not specifically
enumerated in Exhibit C, and shall cover and include all overhead,
superintendence, labor, use of equipment furnished, and all other cost and
expense incurred by Contractor in the performance of said Work.
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6.3 Contractor shall pay promptly all indebtedness for equipment,
materials, supplies and labor used in the Work for each Activation Order.
Contractor shall not permit any lien or charge to attach to the result produced
by the Work or the premises upon which the Work is being performed, but if any
shall so attach, Contractor promptly shall remedy all damage and pay every
expense incidental thereto. Contractor shall hold Company free and harmless from
all claims, losses, and liability resulting from Contractor's failure to pay any
such charges or to discharge any mechanics' and materialmen's liens or similar
charges.
ARTICLE 7
STATE AND LOCAL TAXES
7.1 The prices, sums, rates and other charges set forth in Exhibit C and
the Activation Order shall not include sales, use, value added or any other
excise tax ("Tax" or "Taxes")which may be applicable to the Work.
7.2 It is the responsibility of Contractor to familiarize itself with all
applicable state and local Taxes and to observe and comply with all state and
local laws, ordinances, regulations, orders and decrees that relate thereto,
including the filing of all applicable state and local Tax returns. In addition,
it is the responsibility of Contractor to be familiar with all state and local
Tax exemptions for which the Work qualifies and to avail itself of those
exemptions.
7.3 It is the obligation of Contractor to ascertain the applicability of
Taxes for each Activation Order. If Taxes are determined to be applicable,
Contractor shall timely invoice Company for such Taxes. Such Taxes shall be
separately stated on the invoice, and if only a portion of the Work is
determined to be taxable, then the taxable portion and the non-taxable portion
shall be separately stated with Tax applied only to the taxable portion.
7.4 If Taxes are determined by Contractor to be not applicable, Contractor
shall notify Company in writing prior to the commencement of the Work. If
Company thereafter determines that the Tax is applicable to part or all of the
Work, Company shall notify Contractor in writing within thirty (30) days of the
commencement of the Work and Contractor shall invoice Company for the Tax in
accordance with Section 7.3. Failure by Contractor to timely invoice for Tax
timely shall relieve Company of any applicable interest or penalty.
7.5 If Company does not notify Contractor pursuant to Sextion 7.4, Company
shall reimburse Contractor for any tax, interest, and penalty which may be
levied by any applicable taxing authority on the Work performed by Contractor.
However, this obligation is contigent upon Contractor giving Company proper
notice of any proposed or actual assessment, adjustment, determination or
finding of Tax by any taxing authority relating to the work performed by
Contractor, including the filing of protest and any appeals resulting therefrom.
Any costs, other than administrative costs incurred by Contractor's employees,
incurred in the pursuit of such protest or appeals shall be the responsibility
of the Company.
7.6 If the Tax cannot be separately stated because it is included in the
prices, sums, rates, and other charges, the invoice must clearly state that all
applicable sales or use tax is included in the invoiced amount. Charges for
labor and materials shall also be separately stated on the invoice.
7.7 Notwithstanding anything to the contrary contained in this Agreement,
any Activation Order may provide otherwise than is privided n this Article 7.
ARTICLE 8
INSURANCE
8.1 Prior to commencement of the Work and at all times during the term of
this Agreement, Contractor shall provide and maintain in full force and effect,
insurance of the types and with limits not less than those specified in Exhibit
F of this Agreement.
8.2 Prior to commencement of the Work and at all times during the term of
this Agreement, Contractor shall require each of its subcontractors, of every
tier, to provide and maintain (a) Worker's Compensation, (b) Employer's
Liability, (c) Automobile Liability and (d) General Public Liability insurance
coverage having minimum limits consistent with those required to be carried by
Contractor.
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8.3 All insurance policies provided and maintained by Contractor and each
subcontractor shall:
8.3.1 Be underwritten by insurers which are rated "A VII" or
higher by the most current edition of Best's Key Rating
Guide, and which are authorized to write insurance in the
state or states in which the Work is to be performed
8.3.2 Be endorsed to specifically name Company and its
Affiliates as additional insured, excluding, however,
Worker's Compensation;
8.3.3 Be endorsed to provide that each underwriter waives its
rights of subrogation against Company and its Affiliates;
8.3.4 Provide that such policies are without right of
contribution from any other insurance available to Company
and its Affiliates;-and,
8.3.5 Contain cross liability and severability of interest
provisions.
Evidence of such specific endorsements shall be provided with Contractor's
certificate of insurance furnished pursuant to Section 8.4.
8.4 Contractor shall provide Company with certificate(s) of insurance,
satisfactory to Company, evidencing all required insurance under this Article
prior to commencement of the Work, and replacement certificate(s) of insurance
during the term of this Agreement. Such certificate(s) of insurance shall be on
a form provided by Company and shall contain a provision that Company will
unqualifiedly receive at least thirty (30) days written notice prior to any
cancellation of or material change in the required insurance. Company at its
sole discretion, may require Contractor to submit the original or a certified
copy of Contractor's insurance policies for inspection by Company.
8.5 All insurance required herein shall be written to protect Contractor
against liability for damage, loss or expense arising from damage to property or
injury to or death of any person or persons arising in any way out of, in
connection with, or resulting from the Work.
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8.6 Contractor shall pay promptly all premiums for insurance in strict
accordance with the obligations to its carrier or carriers such that Contractor
at all times shall have full insurance coverage as herein provided.
8.7 Contractor's compliance with the provisions of this Article and the
limits of insurance specified and to be provided by Contractor shall not
constitute a limitation of Contractor's liability for its acts or omissions or
in any way limit, modify, or otherwise affect Contractor's indemnification
obligation pursuant to this Agreement. The insolvency, bankruptcy, or failure of
any insurance company carrying insurance for Contractor, or failure of any such
insurance company to pay claims asserted, shall not abrogate, waive or alter any
of Contractor's responsibilities or liabilities hereunder.
8.8 Any failure to comply with all of the provisions of this Article by
Contractor or any of its insurance companies, or the insolvency, bankruptcy or
failure of any such insurance company, shall permit Company to suspend all Work
until compliance is achieved or a solvent insurance company utilized. At the
option of Company, Company may pay any insurance premiums in order to achieve
compliance for Contractor and deduct the amount of the premiums, and all other
costs incurred by Company in achieving compliance, from amounts to be paid to
Contractor. If compliance is not achieved or a solvent insurance company
utilized within a reasonable time, in the opinion of Company, Company may
terminate this Agreement and Contractor's sole and exclusive remedy shall be to
receive payment for the percentage of Work actually completed by Contractor.
ARTICLE 9
RIGHT TO SUSPEND THE WORK
OR TERMINATE AGREEMENT
In the event Company is prevented by legal proceedings or conditions
beyond its reasonable control from continuing with the Work, then Company may
require Contractor to suspend the Work or Company may terminate this Agreement.
In either such event, Contractor's sole and exclusive remedy shall be to receive
payment for the Work actually completed by Contractor.
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ARTICLE 10
CONTRACTOR'S RECORD OF CONSTRUCTION COSTS
10.1 Upon request, Contractor shall furnish Company conformed and true
copies of all proposals, purchase orders and detailed invoices for all materials
and supplies purchased and used, and for all labor furnished by Contractor, in
the performance of the Work. Such information shall be supplied in the form
prescribed by Company and may be retained by Company in its permanent files.
Contractor shall assist Engineer in every reasonable way in securing daily
records of unit costs and man-hour performance that may be requested.
10.2 Contractor shall maintain and shall require its subcontractors of
every tier to maintain adequate books and records according to generally
accepted accounting principles consistently applied which reflect all costs,
labor, hours, equipment time and other expenses of whatever nature incurred by
Contractor in accordance with the Agreement. Company shall be entitled from time
to time during the performance of the Work and for a period of three (3) years
after final acceptance of the Work to audit the books and records so maintained.
If audit by Company reveals charges or costs charged to or paid by Company as
costs or fees which are not proper or exceed the rates or amounts permitted
under this Agreement for any such matters, then Company shall be entitled upon
demand for a refund from Contractor of all such amounts, plus interest thereon
from the date of payment by Company until the date of refund by Contractor at
the rate of the lesser of (i) eighteen percent (18%) per annum or (ii) the
maximum rate allowed by law.
ARTICLE I I
WORK NOT TO INTERFERE WITH COMPANY OPERATIONS
Contractor agrees to carry on its Work with extreme care to permit the
continuous and safe operation of Company's pipeline system as well as the
pipelines, sewers, water or gas mains, electric or telephone lines or other
facilities of other companies. Contractor shall perform the Work in a manner
that offers a minimum of interference with Company's operations. Contractor's
employees shall not enter Company's buildings except when required by
construction. Contractor shall not permit smoking or open fires in any areas
other than those specified by Engineer.
ARTICLE 12
ASSIGNMENT AND SUBCONTRACTING
12.1 Contractor shall not assign this Agreement or subcontract any of the
Work without the written consent of Company, and any such assignment or
subcontracting of any such Work without such consent shall be null and void.
Company's consent to subcontracting or assignment, if granted, shall not relieve
Contractor of any of its liabilities and responsibilities hereunder. Company
shall have the right to approve or disapprove the specific subcontractor as well
as the right to subcontract in general. Each approved subcontract shall contain
provisions which specifically bind the subcontractor to the applicable terms and
provisions of this Agreement.
12.2 Notwithstanding the foregoing, Contractor shall have the right to
assign all, but not part, of the sums owing it by Company. Such assignment shall
not become effective until thirty (30) days after written notice thereof, signed
by Contractor, has been received by Company at its Houston office, and all
payments made by Company prior to such effective date shall be valid.
ARTICLE 13
DRUG TESTING/ALCOHOL
Company does not condone in any way the use of illegal drugs or the
illegal use of controlled substances. Company does not condone in any way the
consumption of alcoholic beverages during the performance of the Work or any
person at the Site being under the influence of alcohol. Any person under the
influence of alcohol, or in possession of alcohol or any illegal drug, or in the
illegal possession of a controlled substance, will be removed from the Work. In
addition, where required by the Department of Transportation, Contractor shall
have in place a drug testing program meeting the requirements imposed by the
Department of Transportation as specified in Title 49 of the Code of Federal
Regulations, Parts 40 and 199, and shall furnish to Company proof of compliance
with such regulations. Such proof shall consist of a copy of Contractor's drug
testing plan and an affidavit stating that Contractor is in compliance and will
remain in compliance for the duration of the Agreement. Upon request, Contractor
will furnish Company with copies of the records of employee drug test results
required to be kept under the provisions of 49 C.F.R. subsection 199.23 (a)(2)
and (3). Contractor will indemnify and hold harmless Company from any and all
liability for (a) Contractor's employees who fail a drug test given under the
Department of Transportation regulations, and (b) any claims made by a
Contractor's employee resulting from removal from the Work as provided in this
Article. If Contractor fails to comply with these regulations while performing
under this
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Agreement, such non-compliance will be deemed a breach of such Agreement and
Contractor shall be liable for such breach as well as for all damages arising
out of such non-compliance.
ARTICLE 14
NOTICES
14.1 All notices required or permitted to be given by this Agreement,
except where oral notice is specifically authorized, shall be in writing, shall
identify this Agreement by contract number and shall be mailed, delivered, or
sent via facsimile to the party at the address set out in Exhibit E.
14.2 Written notices shall be deemed delivered on the date of actual hand
delivery, or the date that a facsimile is actually received, or if sent in the
United States mail postage prepaid, correctly addressed, then on the third
business day after the day on which mailed. Either party's address for notice
may be changed by written notice given in accordance with this Article 14. This
Agreement shall apply with respect to all Work requested by Company on or before
July 25, 1995.
ARTICLE 15
ARBITRATION
15.1 Any controversy or claim arising out of or relating to this
Agreement, or the breach, termination or validity thereof, that cannot be
resolved by the parties through the process of negotiation, shall be settled by
arbitration in accordance with the Center for Public Resources Rules for
Non-Administered Arbitration of Business Disputes, by three (3) arbitrators, of
whom each party shall appoint one (1). The arbitration shall be governed by the
United States Arbitration Act, 9 U.S.C. ss. 1- 16, and judgment upon the award
rendered by the arbitrators may be entered by any court provided in Section
15.2.
15.2 CONTRACTOR AND COMPANY HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION
OF ANY STATE OR FEDERAL COURT SITTING IN XXXXXX COUNTY, TEXAS, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, AND AGREE THAT NO SUCH
PARTY SHALL BRING ANY SUCH ACTION OR PROCEEDING IN ANY OTHER COURT, OR SEEK TO
REMOVE SUCH ACTION OR PROCEEDING TO ANY OTHER COURT.
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ARTICLE 16
ETHICS
Contractor, its directors, officers, employees, representatives, agents,
subcontractors and assignees of Contractor or any such subcontractor
(collectively the "CONTRACTOR WORK PARTIES") shall not at any time solicit,
accept, offer or bestow gratuities of more than nominal value from or to one or
more of the Company and its affiliates, the employees, agents, or
representatives of Company or its affiliates, any of Company's other
contractors, the employees, agents, or representatives of such other
contractors, one or more of the Contractor Work Parties, or anyone else
associated with the Work. Violation of this policy by any of the Contractor Work
Parties shall constitute a material breach of Contractor's obligations under the
Agreement, and the party who is found to have violated the provisions of this
Section shall be immediately removed from the Work by Contractor at Contractor's
sole risk, cost and expense.
ARTICLE 17
MISCELLANEOUS PROVISIONS
17.1 Contractor, its subcontractors and assignees shall not publish or
make known to others the subject matter or results of the Work or any
information concerning Company, other than that in the public domain, furnished
to or acquired by Contractor, its subcontractors and assigns without Company's
written approval. The obligations established in this Section shall survive and
remain enforceable after any termination of the Agreement.
17.2 If the enforcement of the obligations of Contractor, its
subcontractors or assigns hereunder is referred to any attorney by the Company,
then Contractor shall pay the Company's reasonable attorney's fees and court
costs in addition to any other relief which may be obtained.
17.3 Contractor shall comply with all applicable laws, orders, rules and
regulations bearing upon its obligations hereunder.
17.4 In the event that any statute or rule of law should be held
applicable to any provision(s) contained in this Agreement which would render
void, voidable or unenforceable any such provision(s) by reason of such
provision(s) being contained herein, then, and only in such event, such
provision(s) shall be read, construed and enforced as to the parties as if such
provision(s) which is held to violate the statute or
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rule of law was excluded from this Agreement, but only to the extent or degree
by which such provision(s) is so held, and this Agreement shall otherwise remain
in force and effect and binding upon the parties.
17.5 This Agreement and the attached Exhibits constitute the entire
agreement between Company and Contractor. None of these documents may be amended
except by a writing signed by both parties. No promise, agreement or
representation not set forth in this Agreement or an attached Exhibit shall be
of any, force or effect.
17.6 All headings appearing in this Agreement are for convenience only,
and shall not be considered a part of this Agreement for any purpose or as in
any way interpreting, construing or modifying this Agreement.
17.7 No waiver by either party of any right, or waiver of any default of
the other in the performance of any of the provisions of this Agreement shall
operate or be construed as a waiver of any future right or default, whether of a
like or of a different nature.
17.8 In the event of any dispute under this Agreement, Contractor shall,
notwithstanding the pendency of such dispute, diligently proceed with the
performance of this Agreement without prejudice to the rights of either party.
17.9 The individual executing this Agreement on behalf of Contractor does
hereby represent and warrant that he or she is fully authorized and empowered to
execute same on behalf of Contractor, and to fully bind Contractor to all of the
terms hereof.
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IN WITNESS WHEREOF, Contractor and Company have executed this Agreement as of
the date first above written. COMPANY:
TRUNKLINE GAS COMPANY
BY: /s/ X. X. XXXXXX
X. X. Xxxxxx
TITLE: Vice President
CONTRACTOR:
IDS TECHNICAL SERVICES
BY: /S/
TITLE: PRESIDENT
16
