1
EXHIBIT 10.06
MASTER AGREEMENT
FOR DESIGN AND CONSTRUCTION
SERVICES TO BE PROVIDED BY:
--------------------------------------
CHEVRON ENERGY SOLUTIONS CONTRACT NO.
-------
DATE:
----------------
2
TABLE OF CONTENTS
ARTICLE 1 RECITALS.............................................................................................1
ARTICLE 2 DEFINITIONS..........................................................................................1
PG&E Energy Services is not the same company as Pacific Gas and Electric
Company, the utility. PG&E Energy Services is not regulated by the California
Public Utilities Commission; and you do not have to buy PG&E Energy Services'
products in order to continue to receive quality regulated services from Pacific
Gas and Electric Company, the utility.
ARTICLE 3 PARTIES' INTENT......................................................................................1
ARTICLE 4 THE WORK.............................................................................................2
ARTICLE 5 CONTRACTOR'S DUTIES.................................................................................2
ARTICLE 6 FINAL COMPLETION.....................................................................................6
ARTICLE 7 CONTRACT TIME AND SCHEDULE...........................................................................8
ARTICLE 8 CHANGES IN SCOPE OF WORK AND CLAIMS..................................................................9
ARTICLE 9 SAFETY OF PERSONS AND PROPERTY......................................................................11
ARTICLE 10 WARRANTIES, UNCOVERING OF WORK AND CORRECTION OF WORK................................................12
ARTICLE 11 APPLICATIONS FOR PAYMENT.............................................................................13
ARTICLE 12 PAYMENTS TO CONTRACTOR...............................................................................14
ARTICLE 13 INSURANCE & BONDS....................................................................................15
ARTICLE 14 TERMINATION OR SUSPENSION............................................................................16
ARTICLE 15 INDEMNIFICATION......................................................................................18
ARTICLE 16 DISPUTE RESOLUTION...................................................................................18
ARTICLE 17 MISCELLANEOUS PROVISIONS.............................................................................18
3
[CHEVRON ENERGY SOLUTIONS LOGO]
MASTER AGREEMENT FOR DESIGN AND CONSTRUCTION
THIS MASTER AGREEMENT FOR DESIGN AND CONSTRUCTION ("Master Agreement"),
effective [ADD DATE] ("Effective Date"), is made and entered into by and between
[ADD NAME OF CONTRACTOR], a [ADD STATE ENTITY WAS FORMED] [ADD TYPE OF ENTITY
i.e. CORPORATION, PARTNERSHIP, JOINT VENTURE, SOLE PROPRIETORSHIP], whose
principal office is located at [ADD STREET ADDRESS AND PHONE NUMBER]
(hereinafter referred to as "Contractor"), and CHEVRON ENERGY SOLUTIONS, L.P.,
a Delaware limited partnership whose principal office is located at 345
California Street, Suite 3200, San Francisco, California 94104 (hereinafter
referred to as "CES"), (together hereinafter referred to as the "Parties").
ARTICLE 1. RECITALS
1.1 CES provides, among other things, energy management services on behalf
of its Customers. To provide these services, CES has occasion to retain
qualified engineers and contractors to furnish consulting, engineering,
design and construction services for its energy management Projects;
and
1.2 Contractor represents that it has the capabilities to provide
construction and design services for the type of work required for CES'
Projects, that it possesses valid contractor's license(s), as
appropriate, issued by the State Contractors' State License Boards and
that it employs professional engineers properly licensed by the states
the Work will be performed to practice applicable engineering, or if
permitted by state law, will subcontract such engineering services to
properly licensed engineers; and
1.3 This Master Agreement sets forth the general terms and conditions for
Contractor to design, provide, install and/or construct specific energy
management Projects as requested by CES on a work order basis ("Work
Order"). Individual Work Orders will be issued under this Master
Agreement which shall constitute Amendments to this Master Agreement
and will be fully incorporated herein. Each Work Order issued by CES
shall be executed by both Parties and will serve as authorization for
Contractor to commence work as described in the Work Order. Each Work
Order shall be subject to all the terms and conditions of this Master
Agreement, but shall constitute a separate and independent performance
obligation of the part of SUBCONTRACTOR and payment obligation of CES.
A sample form of the Work Order is attached as EXHIBIT A to this Master
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, the parties agree as follows:
ARTICLE 2. DEFINITIONS
For purposes of this Master Agreement, including all Exhibits attached to this
Master Agreement, and all Work Orders and Change Orders to be issued under this
Master Agreement, the defined terms shall have the meanings set forth in Exhibit
B, "Definitions", attached hereto and incorporated herein.
ARTICLE 3. PARTIES' INTENT
3.1 The Parties' intent is to provide for all items necessary for the
proper execution and completion of the Work. Without limiting the duty
of Contractor to fully review the Contract Documents, in the event of a
conflict or discrepancy among the various Contract Documents, the
documents shall be given precedence in the following order (in
descending order of precedence):
i) The Work Order;
ii) This Master Agreement (including any amendments
thereto);
iii) Specifications; and
v) Drawings - (large-scale Drawings over small-scale)
In the case of any discrepancy or conflict within a document, the more stringent
requirement shall govern.
3.2 If any errors, discrepancies, ambiguities or omissions are found at any
time in the Contract Documents, Contractor shall notify CES in writing
before beginning the Work involved.
3.3 All Drawings, Specifications and copies thereof furnished or prepared
pursuant to the Work Order shall remain the property of CES. Contractor
shall not use said documents for any other project, unless authorized
by CES.
3.4 Contractor shall maintain the Contract Documents and their terms in
confidence and shall not publish or disclose the same without CES'
prior written consent. Contractor shall not use the names or trademarks
of CES in any of Contractor's advertising, publicity or other marketing
materials, without CES' prior written consent.
3.5 No amendments or modifications of the Contract Documents shall be valid
unless evidenced in writing and signed by a duly authorized
representative of each party.
1
4
ARTICLE 4. THE WORK
4.1 Contractor shall furnish and provide all supervision, labor,
transportation, equipment, materials, resources, and other services
necessary to complete the Work for the Project. As indicated in the
Work Order executed by both parties, the Work may include Contractor's
preparation of the Plans and Specifications for the Project.
4.2 Each Work Order for the Project will set forth the scope of work for
each individual Project ("Scope of Work"). In addition, the Work Order
will identify any special provisions contained in a Customer Agreement
between CES and Customer regarding the project schedule, compensation,
regarding potential liability to Customer for consequential damages,
and other material provisions that affect Contractor's Work. Contractor
shall comply with all terms of the Work Order, along with all other
components of the Contract Documents.
4.3 Contractor shall not perform any Work with respect to any Project until
the parties have first executed a Work Order for the Work. Any work
done by Contractor prior to the execution of a Work Order shall be done
at Contractor's expense.
4.4 Contractor shall take direction only from CES, or as otherwise
designated in writing by CES, and not from Customer or others, unless
directed because of immediate safety concerns. All requests for
additional Work, changes to Work, and/or direction from the Customer or
others shall be forwarded to CES' Project Manager for prior written
approval or denial prior to acting on such requests. If Contractor
performs such work requested without CES' prior written approval,
Contractor shall not receive any additional compensation or time for
such unauthorized work.
ARTICLE 5. CONTRACTOR'S DUTIES
5.1 STANDARDS OF PERFORMANCE
5.1.1 Contractor represents and warrants to CES that Contractor is
skilled and experienced in the type of project that is the
subject of the Work Order and shall diligently perform the
Work set forth in all Work Orders. All work performed by
Contractor will comply with standards for comparable work
performed by reputable contractors working in the same
geographical area where the Work will be performed. Contractor
further represents and warrants that it has satisfied itself
as to the conditions under which the improvements are to be
constructed, including, but not limited to, climatic
conditions, available labor supply and costs, local and other
governmental requirements, available equipment supply and
costs, as well as all other items which, in Contractor's
judgment, could in any manner affect the timely performance or
cost of the Work.
5.1.2 Contractor and CES recognize the business relationship
established between them by the Contract Documents. In
performing the Work, Contractor shall, as an independent
contractor to CES, furnish its best reasonable skill,
attention and judgment throughout the course of the Project.
Contractor shall also provide efficient business
administration and supervision, keep at all times an adequate
supply of labor and materials on hand, and prosecute the Work
toward completion in the best and soundest way and in the most
expeditious and economic manner consistent with the reasonable
interests of CES.
5.1.3 Contractor shall incorporate in the Work only materials that
are new and of the grades specified in the Plans and
Specifications. Contractor's workmanship shall meet or exceed
industry standards recognized by the various applicable
trades. All Work shall be executed in a neat, skillful and
workmanlike manner.
5.1.4 Contractor shall observe and at all times fully comply with
all Applicable Laws and Applicable Permits.
5.1.5 Contractor shall pay applicable prevailing wages if the
Customer is a public or Federal agency, or if such payments
are otherwise required by law.
5.1.6 Contractor shall hold, and shall ensure that all
subcontractors doing any portion of the Work hold, all
applicable licenses required to perform the Work covered by
the Work Order, and shall keep all such licenses current and
valid during the performance of the Work.
5.2 PERSONNEL & SUBCONTRACTORS
5.2.1 Prior to commencement of the Work, Contractor shall designate
a project manager and/or a project superintendent in writing
to CES, and shall provide CES with the written resume of such
person(s). Thereafter, Contractor shall not change such
designations without CES' written consent that will not be
unreasonably withheld, unless the designated person ceases to
be employed by Contractor (in which case Contractor shall
provide CES with the written resume of such person's
replacement). CES may, by providing written notice to any of
Contractor's corporate officers, object to any persons
designated by Contractor, originally or subsequently, as
project manager or project superintendent, whom CES deems
objectionable within its reasonable discretion. Upon such
notice of objection, Contractor and CES shall meet and confer,
and, based on said discussions, Contractor shall, if requested
by CES, promptly submit an alternative designation reasonably
acceptable to CES.
2
5
Contractor's project superintendent shall devote full time
attention to the Project and shall maintain an office at the
Site, as appropriate. Such superintendent shall direct,
coordinate and supervise all Work required by the Contract
Documents and shall inspect all materials delivered to the
Site.
5.2.2 Contractor's designated representative shall be empowered by
Contractor to have full authority to execute any and all
instruments that require the signature of Contractor and to
otherwise act on behalf of Contractor with respect to all
matters arising out of the Contract Documents.
5.2.3 Contractor shall only employ for the Project competent and
skilled workers who satisfactorily perform their duties. When
requested by CES in writing, Contractor shall discharge and
shall not re-employ for the Project any person who is
reasonably deemed by CES as unfit, unskilled, disorderly,
dangerous, insubordinate, incompetent, or otherwise
objectionable.
5.2.4 Contractor shall acknowledge receipt of materials and
equipment purchased for the Project and shall provide storage
and protection for such materials and equipment upon delivery.
Contractor shall promptly ascertain whether or not the
materials and equipment comply with the Contract Documents and
shall immediately remove any nonconforming materials and
equipment from the Site. All materials and equipment delivered
to the Site, whether furnished by CES or Contractor, shall be
stored and handled in such a manner to prevent damage thereto
and to preclude inclusion of any foreign substances or
discoloration.
5.2.5 Prior to the commencement of the Work, and before executing
any subcontracts or purchase agreements for the Project,
Contractor shall provide CES with a list of its intended
subcontractors and suppliers for the Work. Within five (5)
working days of receipt of the list, CES shall have the right
to reasonably object to any subcontractors or suppliers listed
by Contractor, and the parties will thereafter meet and confer
with respect to any CES objection. If CES demands that a
subcontractor or supplier not be used for the Project, the
Contract Amount and Contract Time stated in the Work Order
shall be equitably adjusted to reflect the changes caused by
Contractor retaining a new subcontractor or supplier.
5.2.6 Contractor shall not be discharged from any obligations to CES
hereunder as a result of any subcontract or purchase
agreement. Contractor shall be as responsible to CES for the
acts and omissions of its subcontractors and suppliers as it
is for the acts and omissions of persons directly employed by
Contractor. The responsibility of Contractor for its
subcontractors and suppliers shall not be diminished by the
right of CES to approve of Contractor's subcontractors and
suppliers. Nothing contained herein shall create any
contractual relation between any subcontractor or supplier and
CES.
5.3 DESIGN PREPARATION BY CONTRACTOR: As specified by the Work Order,
Contractor's Work may include the preparation of Plans and
Specifications in accordance with the description of the Project set
forth in the Work Order. In that event, Contractor shall comply with
each of the following requirements:
5.3.1 Contractor shall employ a qualified engineer licensed to
practice professional engineering in the state and/or locality
where the Project is located, or if permitted by State law,
may subcontract such engineering services to a properly
licensed engineer. Contractor's Plans and Specifications shall
be prepared under the direct supervision of a licensed
professional engineer and said engineer shall stamp the design
upon completion of the Plans and Specifications.
5.3.2 Contractor shall prepare the Plans and Specifications in
accordance with the terms of this Master Agreement and with
industry standards established by other reputable engineers
practicing in the same locale as where the Project is located.
Contractor's design shall also comply with all Applicable Laws
and Applicable Permits.
5.3.3 Contractor shall be solely responsible for the adequacy,
safety, suitability and completeness of its design. Contractor
is responsible for taking all field dimensions and noting all
field conditions which may impact engineering and design.
Contractor's Plans and Specifications shall be sufficiently
complete to allow for the construction of the Project.
Contractor shall use its best reasonable efforts to prepare
the design so as to avoid errors, ambiguities, conflicts and
omissions and shall take appropriate quality assurance
measures to eliminate any and all errors, ambiguities,
conflicts and omissions within the Plans and Specifications.
5.3.4 Throughout the preparation of the Plans and Specifications,
Contractor shall periodically supply copies of the design to
CES and, as appropriate, to Customer for their review and
approval. Contractor shall also periodically meet with
representatives of CES and Customer to discuss the design as
specified in the Work Order.
5.3.5 Contractor's Plans and Specifications shall be in strict
accordance with the description of the Project set forth in
the Work Order. Contractor's Plans and Specifications are
subject to the approval of CES. Contractor expressly
understands that any approvals of the design by CES and
Customer are for the limited purpose of determining whether
the design conforms to the scope of the Project.
Notwithstanding any reviews and approvals of the design by CES
and Customer, until final acceptance Contractor shall remain
solely responsible for the adequacy, safety, suitability and
completeness of the design. After final acceptance, Contractor
shall remain responsible for warranty provisions, latent
defects, and outstanding claims and/or liens.
3
6
5.3.6 Contractor shall submit the final Plans and Specifications to
the appropriate governmental agencies having jurisdiction over
the Project. Contractor shall work with said agencies to
secure all Applicable Permits.
5.4 DESIGN BY OTHER ENGINEER: If the Plans and Specifications are being
prepared by a CES Engineer, other CES engineering contractor, or
Customer's engineer, Contractor shall, without limitation:
5.4.1 Review Plans and Specifications: Carefully study and compare
the Engineer's Plans and Specifications and shall at once
report to CES any error, ambiguity, or omission discovered by
Contractor, including any requirement which may be contrary to
any Applicable Law or Applicable Permit. Contractor shall not
proceed with any portion of the Work affected by any such
error, ambiguity, or omission until receipt of further
direction or instruction by CES or Engineer.
5.4.2 Construction Consulting Services: Provide recommendations on
construction feasibility, availability of materials and labor,
time requirements for installation and construction, factors
related to cost, including costs of alternative designs or
materials, and possible economies; attend and provide input at
meetings with CES and Engineer during the development of the
design.
5.4.3 Coordination of Design: Review the Plans and Specifications as
they are being prepared by Engineer, recommending alternate
solutions whenever design details, materials, or systems
affect the construction budget, construction feasibility or
construction schedule.
5.5 CONSTRUCTION: In connection with the construction of the Work,
Contractor shall, without limitation:
5.5.1 Project Control: Manage and direct the Work in all
particulars, including its own activities and those of its
Subcontractors, and coordinate the Work with the activities
and responsibilities of CES to complete the Project in
accordance with the Contract Documents. Contractor shall be
solely responsible for its means, methods, techniques,
sequences and procedures employed for the construction.
Contractor shall also coordinate all portions of the Work
required by the Contract Documents.
5.5.2 Supervision: Supervise, coordinate and direct Contractor's own
forces and those of its Subcontractors, regularly monitor as
appropriate to achieve adequate performance, and provide
inspection to assure high workmanship for the Work. Contractor
shall at all times enforce strict discipline and good order
among its employees and Subcontractors and shall require its
Subcontractors to do the same.
5.5.3 Physical Construction: Furnish and pay for all supervision,
labor, materials, fabrications, assemblies, construction
equipment and machinery, tools, water, heat, utilities,
transportation and all other facilities and services that are
necessary for the proper execution and completion of the Work,
whether temporary or permanent and whether or not incorporated
or to be incorporated in the Work, excluding only those items
specifically identified to be provided by CES or by others.
5.5.4 Licensing: Any and all activities requiring licensing to
perform, must be performed by Licensed Engineers, Licensed
Contractors, or Licensed Specialty Contractors (such as
required when performing electrical, plumbing, or disturbing
asbestos or other Hazardous Materials), as required by
Applicable Law. If Work includes certain design work that
requires engineering plans, specifications, and/or drawings,
such documents must be signed by an appropriately licensed
engineer, and/or architect, as required by Applicable Law.
5.5.5 Meetings: Attend and participate in meetings with CES to be
held periodically at the job site as defined in the Work
Order.
5.5.5 Schedule: Provide regular monitoring of the Project Schedule
as the construction progresses. Identify potential variances
between scheduled and probable actual completion dates. Review
schedule for work not started or incomplete and implement
adjustments in the Project Schedule to meet the required
completion date. Contractor shall determine the adequacy of
the personnel working on the Project and also determine
whether the equipment and the availability of materials and
supplies are sufficient to meet the Project Schedule.
Contractor shall implement appropriate action when the
obligations of Contractor and Subcontractors are not being
met.
5.5.6 Permits and Approvals: In consultation with CES, secure and
pay for the building permit, and all other permits, approvals,
charges, governmental fees and licenses necessary for the
construction and the proper execution and completion of the
Work.
5.5.7 Cutting, fitting and patching: Be responsible for all cutting,
fitting or patching that may be required to complete the Work
or to make its several parts fit together properly. Patching
of all finishes shall match any existing work to meet CES'
reasonable approval.
5.5.8 Clean-up: Keep the Project and Site free from accumulation of
waste materials or rubbish caused by its operations. As the
Work is performed, Contractor shall remove all of its waste
materials and rubbish from the Site in accordance with
Applicable Laws and shall be responsible for the payment of
any waste disposal or waste transportation fees. With respect
to Hazardous Substances, attention is directed to Section 5.8
of this Agreement. Upon the completion of the Work, Contractor
shall remove all of its tools, construction equipment,
machinery and surplus materials. To the extent caused by its
Work, Contractor shall replace any broken glass, remove
stains, spots, marks and dirt from painted or
4
7
decorated work, clean hardware, remove paint spots and smears
from all surfaces, clean fixtures and wash all concrete
masonry and tile and clean all glass.
5.5.9 Royalties and Patents: Pay all royalties and license fees.
Contractor shall defend all suits or claims for infringement
of any patent rights and shall save CES harmless from loss on
account thereof. However, Contractor shall not be responsible
for such loss when a particular design, process, or the
product of a particular manufacturer is specified by CES;
provided, that if Contractor knew or reasonably should have
known that the design, process, or product specification is an
infringement of a patent, it shall promptly notify CES in
writing of such knowledge; otherwise, it shall be responsible
for such loss as may result from its failure to give prompt
notice.
5.5.10 Project lines and levels: Be responsible for the accuracy of
the Project lines and levels. Contractor shall carefully
compare the levels shown on the Drawings with existing levels
and shall call to CES' attention any discrepancies before
proceeding with the Work. In accordance with industry
standards of contractors performing similar work on the types
of projects that will be performed by the Contractor, the Work
shall be erected square, plumb, level, true in line and grade,
in the exact plane and to the correct elevation and/or slope
as indicated in the Contract Documents. Contractor shall visit
the Site and visually inspect the general and local conditions
that could affect the Work. Any failure of the Contractor to
reasonably ascertain from a visual inspection of the Site the
general and local conditions which could affect the Work will
not relieve the Contractor from its responsibility to properly
complete the Work without any additional expense to CES.
Contractor shall lay out and be strictly responsible for the
accuracy of the Work and for any loss or damage to CES and
Customer or others by reason of the Contractor's failure to
set out or perform its work correctly. Contractor shall
exercise prudence so that the actual final conditions and
details of its Work shall result in alignment of finish
surfaces.
5.5.11 Tests: Conduct tests, inspections and approvals as required.
If the Contract Documents or Applicable Laws require any
portion of the Work to be inspected, tested or approved,
Contractor shall give CES at least 48 hours notice of its
readiness for such inspecting, testing or approval. The
Contractor shall give proper written notice to all required
parties of such tests, approvals and inspections. Unless
otherwise specifically provided in the Contract Documents,
Contractor shall bear all costs of such inspections, tests or
approvals. Contractor shall also secure all required
certificates of inspection, testing or approval and promptly
deliver them to CES. If CES determines that any Work requires
special inspection, testing, or approval not already required
by the Contract Documents or Applicable Laws, CES may instruct
Contractor to order such special inspection, testing or
approval. If such special inspection or testing reveals a
failure of the Work to comply with the requirements of the
Contract Documents (including any Applicable Laws), Contractor
shall bear all costs thereof, including compensation for any
additional services of the Engineer made necessary by such
failure; otherwise, CES shall bear such costs, and an
appropriate Work Order will be issued. Contractor shall not be
relieved of its obligations to perform the Work in accordance
with the Contract Documents, notwithstanding any inspections,
tests or approvals provided by CES.
5.5.12 Start-up: Start-up all systems and equipment included in the
Work. Contractor has included in the Contract Amount
sufficient allowances to cover contingencies that may arise in
connection with the start-up of individual systems, equipment
and the total facility. Contractor shall fully comply with
each manufacturer's specifications and instructions. Equipment
that has been specified to be furnished with manufacturer's
supervision of start-up shall be placed in operation only
under the supervision of manufacturer's representative.
5.5.13 Documents And Samples At The Site: Contractor shall maintain
at the site in good order the following documents for CES'
inspection and copying:
1. Drawings, Specifications, approved Shop Drawings,
Product Data and Samples, Work Orders and other
Modifications.
2. All documents which arise out of the Contract
Documents or the construction of the Project,
including, without limitation, the following:
Subcontracts; Work Orders; Project correspondence;
job meeting minutes, memoranda and notes; and any
other related documents pertaining to transactions
related to the Contract Documents and work performed
in relation thereto.
3. A current marked set of Plans and Specifications
showing record, or "as-built", conditions,
configurations and locations to facilitate the
preparation of record, or "as-built", drawings.
5.5.14 Reports And Project Site Documents: Contractor shall record
the progress and activity of the Project on a weekly basis,
maintain such records for a period of three (3) years after
Final Payment, and upon request of CES, submit copies thereof
to CES. Contractor shall submit written progress reports on a
weekly basis, unless otherwise specified in the Work Order, to
CES, including information on the status of the Work, any
problems that threaten the timely completion of the Work, any
pending claims, and the percentage of completion of the Work.
5
8
5.6 TAXES
5.6.1 Unless otherwise provided in the Contract Documents,
Contractor shall pay all sales tax and any other tax charged
on the material, equipment, and labor provided by Contractor
under the Contract Documents for the Work, which are enacted
by any municipal, county, federal or state authority. Upon
Final Completion of its Work, Contractor shall not be
responsible for payment of any tax or assessment based on the
completed Work, unless otherwise provided in the Contract
Documents.
5.7 USE OF SITE
5.7.1 Contractor shall confine its operations at the Site to areas
permitted by Applicable Laws, Applicable Permits and the
Contract Documents. Contractor shall not unreasonably encumber
the Site with any materials or equipment, and it shall
maintain the Site in a neat, orderly manner. Contractor shall
confine its ingress and egress to the Site to areas approved
in advance by CES and shall not use any other ingress or
egress to or from the Site. Contractor shall assume full
responsibility for any property damage resulting from the
performance of its Work, except to the extent such damage was
the result of CES' or Customer's negligence.
5.7.2 Contractor shall take measures to control the blowing or
spreading of dust, smoke, dirt, mud and refuse from the Work
to avoid nuisance and inconvenience to others whether on or
off the Site. These measures shall be in compliance with,
without being limited to, all Applicable Laws, and shall be
subject to CES' reasonable approval.
5.7.3 Contractor shall perform its Work (and to have its
Subcontractors and other parties so perform their work) so as
to not unduly interfere with or disrupt the business
operations of Customer. CES will coordinate with Customer to
minimize the possibility of Customer caused delays to the
construction. CES acknowledges and agrees that Contractor
needs reasonable access to the Site and a reasonable amount of
time per working day to perform the Work in an efficient
manner, and CES will coordinate with Customer regarding same.
5.7.4 Contractor acknowledges that CES intends to minimize damage
and disturbance to the environment at the Site. Contractor
shall use its best efforts to limit its Work to the areas
designated by CES and to protect and prevent damage or
disturbance to any trees or other vegetation outside of the
clearing limits shown on the Contract Documents.
5.8 DUTIES REGARDING MANAGEMENT OF HAZARDOUS SUBSTANCES AND HAZARDOUS
WASTE.
5.8.1 Contractor shall be responsible for complying with all
Applicable Laws with respect to the removal and proper
disposal of all Hazardous Substances brought onto or generated
by Contractor or by any of its Subcontractors in the course of
performing the Work. Contractor shall defend, indemnify and
hold CES and Customer harmless from and against any and all
losses, damages, expenses, fees, claims, costs and liabilities
(including, but not limited to, attorneys' fees and costs of
litigation) arising out of or in any manner related to the
release or threatened released of any Hazardous Substances
brought onto or generated by Contractor during the course of
performing the Work. It is expressly understood that this
responsibility includes protecting CES and Customer from any
clean-up responsibility imposed on CES or Customer under
Applicable Laws.
5.8.2 Contractor shall not be responsible for any pre-existing
Hazardous Substances at the Site. Contractor shall provide
written notice to CES immediately upon the discovery of any
pre-existing Hazardous Substances. Except in case of
emergency, Contractor, or any of its subcontractors, shall not
disturb, disrupt, remove, alter, dislodge or otherwise handle
any pre-existing Hazardous Substances at the Site without the
prior written consent of CES. As appropriate, CES will issue a
Work Order to Contractor for the removal of any pre-existing
Hazardous Substances from the Site. Contractor shall defend,
indemnify and hold CES and Customer harmless from and against
any and all losses, damages, expenses, fees, claims, costs and
liabilities (including, but not limited to, attorneys' fees
and costs of litigation) arising directly out of Contractor
disturbing or causing a release of any pre-existing Hazardous
Substances at the Site.
5.8.3 UNDER NO CIRCUMSTANCES SHALL CES BE LIABLE FOR ANY INJURY TO
CONTRACTOR WHICH IS THE RESULT OF CONTRACTOR'S EXPOSURE TO
HAZARDOUS SUBSTANCES.
5.9 Contractor's duties as set forth in this Article 5 of the Master
Agreement are not intended to be exhaustive, and they shall not limit
other duties imposed by the Contract Documents or by Applicable Laws
and/or otherwise necessary for the successful completion of the Work as
an integrated whole.
ARTICLE 6 FINAL COMPLETION
6.1 COMPLETION AND CLOSE-OUT SUBMITTALS
6.1.1 As necessary for the completion of the Work, Contractor shall
assemble and submit to CES the following materials and
documentation ("Closeout Documentation"):
6
9
1. All permit sign-offs or other approvals of any
governmental agency with authority over the Project.
2. One record set of all the following project
documentation: (a) Specifications, (b) Project
Drawings, (c) Modifications, (d) CES field orders or
written instructions, sketches, etc., (e) Approved
Shop Drawings, Product Data and Samples, (f) All test
data and testing laboratory reports, (g) Record, or
"As Built", specifications legibly marked to indicate
the manufacturer, trade name, catalog number, and
supplier of each product and item of equipment
actually installed, (h) One reproducible Mylar record
set and two sets of prints of Record, or "As Built",
drawings, legibly marked concurrently with the
construction process, and (i) one electronic AutoCAD
copy of the Record, or "As Built", drawings.
3. Three duplicate sets, each separately bound and
indexed in vinyl covered three ring binders, of
operating instructions and maintenance
recommendations for all equipment and systems
installed as a part of the Work, including, without
limitation, a printed parts list for all items which
might be subject to replacement. The instructions
shall set forth all of the information necessary for
Customer to maintain and operate and make full and
efficient use of all equipment and systems comprising
the Work. They shall provide the name, address and
telephone number of the firm or organization that is
authorized by the manufacturer of the installed
equipment to service the equipment as the need may
arise.
4. All spare parts, maintenance materials and any other
materials or equipment for which Contractor had been
paid but which was not actually incorporated into
Work.
5. The originals of all warranties, guaranties, bonds,
or certificates of compliance required by the
Contract Documents relative to the Work. These shall
be compiled in a vinyl covered three ring binder and
indexed in order of and in accordance with
corresponding specification sections or other
requirements of the Contract Documents.
6. Final affidavit and unconditional lien waivers and
releases from Contractor and all its subcontractors.
6.2 FINAL COMPLETION AND FINAL PAYMENT
6.2.1 When Contractor considers the Work to be fully complete and
ready for final inspection, Contractor shall certify in
writing to CES that:
1. The Contractor has reviewed the Contract Documents.
2. The Contractor has inspected all Work for compliance
with the Contract Documents.
3. The Contractor has determined that all Work has been
completed in accordance with the Contract Documents.
4. The Contractor has cleared, tested and started-up all
equipment and systems in accordance with the Contract
Documents and said equipment and systems are fully
operational per the manufacturers' manuals.
5. The Contractor has submitted all Close-out
Documentation required by Subparagraph 6.1.1 of this
Master Agreement.
6. The Work is fully completed and ready for final
inspection.
6.2.2 CES will inspect the Work to verify the status of completion
within a reasonable time after its receipt of Contractor's
certification required by Subparagraph 6.2.1 of this Master
Agreement.
6.2.3 If CES determines that any of the Work is incomplete or
defective, CES will promptly notify Contractor in writing of
such incomplete or defective Work, itemizing and describing
such remaining items with reasonable particularity. Contractor
shall immediately complete all items and remedy all stated
deficiencies, after which Contractor shall send another
written certification to CES that the Work is fully complete.
CES will thereafter promptly re-inspect the Work.
6.2.4 When CES determines that the entire Work has been fully and
properly completed in accordance with the Contract Documents,
and Customer has accepted the Work, CES will give written
notice to Contractor of acceptance and Final Completion.
6.3 WAIVER
6.3.1 Subject to Subparagraph 10.3 of this Master Agreement, CES'
inspection, notice of Final Completion, its Final Payment, its
acceptance of the Work, and Customer's possession of the
Project shall not operate as a waiver of any warranty
provision of the Contract Documents. Any waiver by either
party of any
7
10
breach of the Contract Documents shall not be held to be a
waiver of any other or subsequent breach, and any waiver by
either party of any right to terminate the Work Order shall
not be held to be a waiver of any breach of the Contract
Documents.
6.3.2 Contractor's acceptance of Final Payment shall constitute a
waiver of all claims of Contractor except those previously
made in writing and expressly identified as unsettled at the
time of submission of Contractor's final Application For
Payment.
ARTICLE 7. CONTRACT TIME AND SCHEDULE
7.1 PROGRESS AND COMPLETION
7.1.1 The time period set forth in the Work Order for Final
Completion of the Work ("Project Schedule") may be extended
only for causes and events expressly authorized under this
Master Agreement. Contractor shall begin Work on the Date of
Commencement of the Work. Contractor shall not commence work
prior to the issuance of a written notice to proceed by CES.
Contractor shall thereafter prosecute the Work continuously,
expeditiously and diligently at such a rate to maintain
sufficient progress in accordance with the Project Schedule to
achieve Final Completion within the Contract Time, unless an
extension of time is justified under Article 7 of this Master
Agreement. Should it appear at any time that Contractor is in
danger of failing to meet any of the critical path milestone
dates contained in the Project Schedule, Contractor shall
cause its employees and its Subcontractors to increase
personnel or perform overtime work as is necessary to return
to the original Project Schedule. Contractor shall not be
compensated or reimbursed for any additional costs resulting
from such overtime work, and no adjustment shall be made to
the Contract Amount, unless an extension of time would have
been justified under Article 7 of this Master Agreement and
Contractor had supplied CES with notice of its intent to
accelerate prior to providing such overtime work.
7.2 DELAYS AND EXTENSIONS OF TIME
7.2.1 Time is of the essence in the performance of the Work. In the
event that Final Completion of the Work is not achieved in
accordance with the Project Schedule (or as such date may be
extended as provided in this Article 7 of the Master
Agreement), Contractor recognizes that CES may suffer
substantial damages as a result of the delay.
7.2.2 Contractor shall pay CES all costs and damages which CES
incurs and as necessary to hold CES harmless from any monetary
loss which is caused by Contractor's failure to achieve
Substantial Completion within the Contract Time set forth in
the Work Order (or as extended by a subsequently issued Change
Order.) CES will seek in its agreement with its Customer limit
the recoverability of consequential damages against both CES
and Contractor for any late completion of the Work; however,
CES makes no representation that it will be able to obtain
such consent. Other than consequential damages of Customer,
Contractor shall not be liable to CES for consequential
damages. CES shall provide notice to Contractor of any special
provisions contained in the Customer Agreement between CES and
Customer, at such time Contractor can agree, or not agree, to
execute such Work Order.
7.2.3 Contractor may be entitled to an extension of the Contract
Time for excusable delays arising from only the following
events which are unforeseeable and beyond the control of
Contractor and which are neither caused nor contributed to by
the fault or negligence of Contractor or its Subcontractors:
1. Acts of God, such as tornado, fire, hurricane,
blizzard, earthquake, typhoon, flood or other similar
unavoidable casualties.
2. Labor disruption by a third party; unanticipated
action or failure to act by a governmental entity
having jurisdiction over the Project; or litigation
commenced by any person or entity not a party to the
Contract Documents.
3. Abnormal, adverse weather not reasonably foreseeable.
The Contract Time will not be extended due to normal
seasonal weather variations.
4. Delays caused by acts or failure to act by CES, other
CES consultants and contractors, or CES' Customer.
7.2.4 In the event that Contractor requests an extension of the
Contract Time, Contractor shall furnish justification and
supporting documentation, as described in Section 7.2.5 below,
to determine whether Contractor is entitled to an extension of
time under the Contract Documents. If CES finds that
Contractor is entitled to any extension of time, CES'
determination as to the total number of days' extension shall
be based upon the justified number of days of delay claimed by
Contractor and the currently approved Project Schedule.
Contractor acknowledges and agrees that actual delays in
activities which, according to the most current Project
Schedule, that do not affect activities critical to the
completion of the Work within the Contract Time will not be a
valid basis for a change to the Contract Time. If CES
determines that Contractor is entitled to an extension of the
Contract Time, an appropriate Change Order will be issued.
7.2.5 Any claim for an extension of time shall be made in writing to
CES within twenty-one (21) days of Contractor's reasonable
discovery of actual delay to the Work, and the circumstances
and activities
8
11
leading to such claim shall be indicated or referenced on
Contractor's daily report for the day(s) affected; otherwise,
all such claims are waived by Contractor. In making a claim
for an extension of time, Contractor shall provide the
following specific information and CES may request additional
documentation if necessary to evaluate Contractor's claim for
additional time:
1. Nature of the delay;
2. Date (or anticipated date) of commencement of delay;
3. Activities on the Project Schedule affected by the
delay, and/or new activities created by the delay,
and their relationship with existing activities;
4. Reason for delay; identification of person(s), or
organization(s), or event(s) responsible for the
delay;
5. Anticipated extent of delay;
6. Amount of additional extension of Contract time
requested by Contractor; and
7. Any recommended action to avoid or minimize
additional delays.
7.2.6 An extension of Contract Time shall not be granted if, in the
exercise of reasonable prudence, Contractor, or anyone for
whom Contractor is responsible, could have avoided the delay
in the progress of the Work. Delays otherwise allowable shall
be reduced by the amount of time that Contractor or anyone for
whom Contractor is responsible, in the exercise of reasonable
prudence, could have avoided or reduced such delays in the
course of the performance of subsequent portions of the Work,
provided that Contractor shall not be obligated to incur
additional cost to make up any excusable delays.
7.2.7 Except as otherwise specifically provided in this Master
Agreement, Contractor shall not be entitled to any increase in
the Contract Amount or payment of additional compensation of
any kind from CES based on any delays unless (1) Contractor
gives timely notice; and (2) Contractor substantiates its
claim for additional compensation by providing CES written
documentation supporting that the delay is excusable and
documenting all claimed extra costs associated with such
excusable delay in accordance with Articles 7 and 8 herein,
shall provide timely notice under Section 8.4 of this Master
Agreement and shall substantiate all extra costs claimed by
Contractor based on such delay.
7.3 PROJECT SCHEDULE
7.3.1 Parties will attach to the Work Order an agreed upon Project
Schedule which describes Contractor's intended method of
accomplishing the Work. Such Project Schedule shall be in a
form acceptable to CES and shall demonstrate an expeditious,
practicable and reasonable plan for accomplishing Final
Completion within the Contract Time
7.3.2 Project Schedule shall take into account accomplishment of
such interim milestones or requirements of CES for completion
of portions of the Work at times earlier than the full
Contract Time, and Contractor may use such "float" time
elsewhere in the Project Schedule if it does not impact the
project critical path.
7.3.3 With CES' prior written approval, the Project Schedule may be
revised to reflect any adjustments extending the Contract
Time, including revision to the durations, sequences and
interrelationships of activities affected by the occurrences
permitting such adjustment. CES shall be entitled to rely on
the Project Schedule (and as revised) in planning and
scheduling performance of its obligations under the Contract
Documents or of interrelated work by its own forces or
separate contractors.
7.3.4 Contractor shall coordinate its Work with CES and all other
contractors, subcontractors and suppliers so as not
unreasonably delay or disrupt their performance or impact the
project critical path. Oral extensions of the Contract Time
shall not be binding on CES.
ARTICLE 8. CHANGES IN THE SCOPE OF WORK AND CLAIMS
8.1 REQUESTS FOR ADDITIONAL WORK. Contractor shall perform the Work as
specified in each Work Order and any subsequently issued Change Orders.
Contractor is under no obligation to perform additional work which
exceeds the Scope of Work described in the Work Order and written
Change Orders. During the performance of Work on a particular Work
Order, CES may request Contractor to perform additional work, outside
the Scope of Work, and such new work shall be authorized by a written
Change Order. If, during the performance of the Work, Contractor is
requested to perform work under the existing Work Order that Contractor
believes is outside the Scope of Work identified in the Work Order, or
a subsequently issued Change Order, Contractor shall provide written
notice of same to CES within twenty-one (21) working days of Contractor
receipt of notice of such request. If the Work is deemed by CES to be
outside the original Scope of Work, a Change Order for the additional
work shall be issued. If CES deems said work to be within the Work
Order Scope of work, or another subsequently approved Change Order
Scope of Work, Contractor shall perform such work, but shall do so
under protest for additional compensation and/or time and such protests
shall be submitted to CES as a Claim for additional compensation and/or
time. Such claims for additional compensation and/or time shall be
resolved in accordance with terms of Articles 7 and 8.
9
12
8.2 MATERIAL CHANGES IN THE SCOPE OF WORK.
8.2.1 If, during the performance of the Work, Contractor believes
that a Material Changed Condition is impacting or will impact
the Work requiring additional time and/or compensation,
Contractor shall provide written notice of same to CES within
twenty-one (21) days of Contractor's notice of such Changed
Condition, the anticipated time of delay and/or the estimated
additional costs associated with the Material Changed
Condition. Contractor shall continuously update CES as to the
impact of the Material Changed Condition. If CES agrees that
there is a Material Changed Condition, a new or amended Work
Order shall be issued to increase time and/or compensation. A
"Material Changed Condition" shall be defined as one or more
of the following conditions that impact the Project Schedule
("Time") and/or Cost: 1) parties outside the control of
Contractor caused delays in Project Schedule; 2) discovery of
differing and unexpected site conditions which were not
previously disclosed by Customer and could not have been
readily discoverable by Contractor prior to start of Work; 3)
discovery of hazardous wastes or material which was not
previously disclosed; (4) adverse weather conditions not
reasonably anticipated; and (5) any other condition that could
not have been reasonably anticipated by the Parties and is
outside Contractor's control. If there is a disagreement
between CES and Contractor as to whether or not there is a
Material Change Condition, those disputes shall be resolved in
accordance with the provisions of this Master Agreement.
8.2.2 If there is any change to the scope of work resulting in a
change in the Contract Amount, the change to the Contract
Amount shall be determined in one or more of the following
ways:
l. By mutual acceptance of a lump sum properly itemized
and supported by sufficient substantiating data to
permit evaluation;
2. By unit prices stated in the Contract Documents or
subsequently agreed upon; or
3. By the method provided in Subparagraph 8.2.3 of this
Master Agreement.
Except as otherwise provided in the Contract Documents, the
cost or credit to CES resulting from a Change in the Work, not
covered by unit prices, shall be based on the following
percentages added to the extra material and labor costs:
Percentage allowance to Contractor for overhead and profit for
extra work performed by Contractor with its own forces shall
be Fifteen Percent (15%); the percentage allowance to
Contractor for overhead and profit for extra work performed by
Contractor's Subcontractor and supervised by Contractor shall
be Ten Percent (10%); and plus a reasonable allowance for
costs of delay that shall be documented and verified at CES'
request.
8.2.3 If Contractor does not respond promptly or disagrees with the
method of adjustment in the Contract Amount, the method and
the adjustment to shall be determined by CES on the basis of
the reasonable expenditures and savings of those performing
the Work attributable to the Change, including, in the case of
an increase in the Contract Amount, a reasonable amount for
overhead and profit as defined in Section 8.2.2 above. In such
case, Contractor shall keep and present, in such form as CES
may prescribe, an itemized accounting together with
appropriate supporting data such as invoices, Subcontractor
quotes and other documents and records as CES may require to
verify Contractor's costs. Unless otherwise provided for in
the Contract Documents, costs for the purposes of this Section
shall be limited to the following:
l. costs of labor, including social security, old age,
and unemployment insurance, fringe benefits required
by agreement or customer, and worker's compensation
insurance;
2. costs of materials, supplies, and equipment,
including cost of transportation, whether
incorporated or consumed;
3. rental costs of machinery and equipment, exclusive of
hand tools, whether rented from the Contractor or
others;
4. costs of premiums for all bonds and insurance, permit
fees, and sales, use or similar taxes related to the
Work;
5. additional costs of supervision and field office
personnel and other field office costs directly
attributable to the change.
8.2.4 Notwithstanding any dispute regarding any requested adjustment
in the Contract Amount or Contract Time with respect to a
change in the Work, Contractor shall promptly proceed with the
Work required by any Work Order issued by CES and CES shall
continue to make payments to Contractor in accordance with the
Contract Documents.
10
13
8.3 CLAIMS
8.3.1 Other than changes initiated by CES, Contractor shall not be
entitled to any adjustment of Contract Amount or Contract Time
except in strict compliance with the procedures hereinafter
set forth. The failure of Contractor to assert any claim
within the time limits prescribed herein or in the form or
manner precisely as required hereby shall be deemed a material
prejudice to the interests of CES and shall constitute an
absolute waiver of the claim and the right to file or
thereafter prosecute same.
8.3.2 In the event that Contractor contends that any order (which
shall include direction, instruction, interpretation or
determination) from CES or other event or occurrence causes a
Change in the Work entitling Contractor to an adjustment of
either the Contract Amount or Contract Time or both,
Contractor shall:
1. Provide a written Notice of Claim to CES within
twenty-one (21) days after the occurrence of the
event or first recognized the condition giving rise
to such claim. Such Notice of Claim must clearly
identify the event or condition that is relied upon
and contain a clear statement of why it constitutes a
basis for adjustment.
2. The Notice of Claim shall include a clear, concise
recital of the basis upon which the claim is
asserted, including a designation of the provision(s)
in the Contract Documents on which the claim is based
and the amount of time and compensation claimed. All
costs, expenses or damages and extensions of time
claimed as a result of the alleged change shall be
described in reasonable detail and shall be supported
with reasonable documentation.
3. To the extent that any adjustment to the Contract
Time is sought, Contractor shall also fully comply
with the requirements of Article 7.
8.3.3 CES shall review any claim that was timely submitted by
Contractor. In conducting this review, CES shall have the
right to require Contractor to submit such additional
documents, data and other information as CES may reasonably
require. The failure to submit such additional documents, data
or other information within fifteen (15) working days
following Contractor's receipt of CES' written request shall
be deemed a waiver of the claim. If, upon completion of such
review, CES determines that a Change is justified, CES shall
issue a new or amended Work Order amending the Contract Amount
or Contract Time or both as appropriate. If Contractor
disputes the determination made by CES, as a condition
precedent of any further action to resolve such dispute,
Contractor must notify CES in writing within five (5) working
days following receipt of the decision of such dispute and
permit CES fifteen (15) additional working days to reconsider
and, if it deems it appropriate, modify its decision.
ARTICLE 9: SAFETY OF PERSONS AND PROPERTY
9.1 Contractor shall take all reasonable precautions for the safety of, and
shall provide all reasonable protection to prevent damage, injury or
loss to:
9.1.1 All employees and its Subcontractors and their employees on
the Project or performing the Work and all other persons who
may be affected thereby;
9.1.2 All Work and all materials and equipment to be incorporated
therein, whether in storage on or off the Site under the care,
custody or control of Contractor or any of its Subcontractors;
and
9.1.3 Other property at the Site or adjacent thereto, including
trees, shrubs, lawns, walks, utilities, pavements, etc.
9.2 Contractor shall give all notices and shall comply with all Applicable
Laws bearing on the safety of persons or property or their protection
from damage, injury or loss. Specifically but without limitation,
Contractor and its Subcontractors shall thoroughly familiarize
themselves with all requirements of Public Law 91-956 enacted by
Congress, December 29, 1970, cited as the "Occupational Safety and
Health Act of 1970", and all amendments thereto, commonly referred to
as OSHA, and Contractor shall have the responsibility to fully enforce
and comply with all provisions of this Act.
9.3 Contractor shall erect and maintain, as required by existing conditions
and the progress of the Work, all reasonable safeguards for safety and
protection of the Work, including posting danger signs and other
warnings against hazards, promulgating safety regulations and notifying
CES and Customer of adjacent utilities.
9.4 Contractor shall promptly remedy all damage or loss to any property
caused in whole or in part by Contractor or its Subcontractors, except
such damage or loss attributable to the negligent acts or omissions of
CES, Customer, or others for whom they are responsible.
9.5 In any emergency affecting the safety of persons or property,
Contractor shall reasonably act to prevent threatened damage, injury or
loss.
9.6 Contractor shall exercise appropriate, reasonable care in carrying out
any Work involving explosive or other dangerous methods of construction
or hazardous procedures, materials or equipment. Contractor shall use
properly qualified individuals to carry out such Work in a safe and
reasonable manner so as to reduce the risk of damage, injury or loss.
11
14
9.7 Contractor shall designate an employee at the Site who shall act as
Contractor's designated safety representative with a duty to prevent
accidents. Unless otherwise identified in writing, the designated
safety representative shall be the Contractor's project superintendent.
9.8 Contractor shall not overload the structures or conditions at the Site
and shall take reasonable steps not to load any part of the structures
or Site so as to give rise to an unsafe condition or create an
unreasonable risk of damage, injury or loss. Contractor may submit a
written request to CES or Customer for loading information concerning
the structures at the Site.
9.9 Contractor shall give prompt written notice to CES of any accident
involving personal injury requiring a physician's care, any property
damage exceeding five hundred dollars ($500.00) in value, or any
accident or failure that could have resulted in serious personal
injury, whether or not such an injury was sustained.
9.10 Contractor shall establish its own written safety program implementing
safety measures, policies and standards conforming to those required or
recommended by governmental and quasi-governmental authorities having
jurisdiction, and by CES and Customer, including, but not limited to,
requirements imposed by the Contract Documents and the Customer
Agreement. Contractor shall comply with the reasonable recommendations
of insurance companies having an interest in the Project, and shall
stop any part of the Work which CES deems unsafe until corrective
measures satisfactory to CES shall have been taken. CES' failure to
stop Contractor's unsafe practices shall not relieve Contractor of the
responsibility therefor. Contractor shall notify CES immediately
following an accident and shall promptly confirm the notice in writing.
A detailed written report shall be furnished if requested by CES.
Contractor shall indemnify CES and Customer for fines or penalties
imposed on CES or Customer as a result of a safety violation by
Contractor.
9.11 Material Safety Data (MSD) sheets as required by law and pertaining to
materials or substances used or consumed in the performance of the Work
shall be submitted to CES by Contractor. MSD sheets obtained by CES
from other contractors or sources shall be made available to
Contractor.
9.12 Use and handling of Hazardous Substances by Contractor shall be in
compliance with all Applicable Laws.
ARTICLE 10. WARRANTIES, UNCOVERING OF WORK AND CORRECTION OF WORK
10.1 UNCOVERING OF WORK
10.1.1 CES shall inspect the Work at times chosen to avoid delay to
Contractor's Work. If any portion of the Work is covered
contrary to the requirements of the Contract Documents or to
the express request of CES during construction, Contractor
shall, if required in writing by CES, uncover such work for
CES' observation. Any defective Work shall be removed and
replaced at Contractor's expense.
10.1.2 If any portion of the Work has been covered which CES has not
specifically requested to observe prior to being covered or
which the Contract Documents did not state should be observed
by CES prior to covering, CES may request to see such Work and
it shall be uncovered by Contractor. If such Work is found to
be in accordance with the Contract Documents, the cost and
additional time of uncovering and replacement shall, by
appropriate Work Order, be paid by CES. If such Work is found
to be not in accordance with the Contract Documents,
Contractor shall pay such costs unless the condition was
caused by CES, or a separate contractor, in which event CES
shall be responsible for the payment to Contractor of such
costs.
10.2 WARRANTY AND CORRECTION OF WORK
10.2.1 Contractor warrants to CES that all materials and equipment
furnished under the Work Order will be new unless otherwise
specified, and that all Work (without limitation, including
all materials, equipment and workmanship) will be of the
specified quality, free from defects and in strict conformance
with the Contract Documents and Equipment Manufacturers
warranty provisions. All Work not conforming to these
requirements, including substitutions not properly approved
and authorized, may be considered defective. Contractor
further agrees to correct all deficient Work discovered by CES
and/or Customer during a period of one (1) year after the Date
of Substantial Completion of the Work or for such longer
period of time as provided by specific warranties contained
elsewhere in the Contract Documents. In addition to making
such corrections, repairs and/or replacements, Contractor
shall correct, repair and/or replace any other property damage
to Customer caused as a result of such defective materials,
equipment and/or workmanship. Such corrective work shall be at
the sole expense of Contractor and shall be performed in a
timely manner at the reasonable convenience of Customer. The
warranties set forth in this Paragraph and elsewhere in the
Contract Documents shall survive Substantial Completion and
final acceptance of the Work.
12
15
10.2.2 Without limiting the responsibility or liability of Contractor
under the Contract Documents, all warranties and attendant
rights given by manufacturers on materials or equipment
incorporated in the Work are hereby assigned by Contractor to
CES and Customer. If requested, Contractor shall execute
formal assignments of said manufacturers' warranties to CES
and/or Customer.
10.2.3 Contractor shall promptly correct all Work rejected by CES
that does not comply with the requirements of the Contract
Documents whether observed before Final Completion of the Work
or thereafter observed within the warranty period, whether or
not fabricated, installed or completed. Contractor shall bear
all costs of correcting and/or replacing all such rejected
Work incurred by CES including the expense of repairing and/or
replacing all other property damage caused by such replacement
and re-execution. The one (1) year period for correction of
Work shall be extended by the corrective Work performed by
Contractor pursuant to this section 10.2, unless otherwise
specified in the Work Order.
10.2.4 Contractor shall remove from the Site all portions of the Work
which are defective or nonconforming and which have not been
corrected unless removal is waived by CES.
10.2.5 If Contractor fails to correct defective or nonconforming Work
within the time period set forth in CES' written notice to
Contractor, CES may, but shall not be required to, correct
such defective or nonconforming Work. All costs of such
corrective action incurred by CES (including engineering and
other consultant's fees and expenses) plus a fee equal to ten
percent (10%) of the repair costs incurred by CES shall be
deducted from the balance of any amounts due to Contractor, or
if that is insufficient, Contractor shall pay the difference
to CES upon demand.
10.3 ACCEPTANCE OF DEFECTIVE OR NONCONFORMING WORK
If CES prefers to accept defective or nonconforming Work, CES may do so
instead of requiring its removal and correction, in which case a Work
Order will be issued to reflect a reduction in the Contract Amount in
an appropriate amount. Such adjustment shall be effective regardless of
whether Final Payment has been made.
10.4 NON-LIMITATION OF RIGHTS AND REMEDIES
The warranties set forth in this Article 10, and those contained
elsewhere in the Contract Documents or implied by law, shall be deemed
cumulative and not alternative or exclusive. No warranty shall be
deemed to alter or limit any other warranty or any other remedy or
right under the Contract Documents or provided by law. Nothing
contained in this Article 10 shall be construed to establish a period
of limitation with respect to any other obligation which Contractor has
under the Contract Documents or under any separate warranty or guaranty
required thereby. The warranty period established by the Contract
Documents relates only to the specific obligation of Contractor to
correct the Work, and it has no relationship to the Project Schedule,
nor any statute of limitations regarding time within which proceedings
may be commenced against Contractor to establish Contractor's liability
with respect to its obligations other than specifically to correct the
Work.
ARTICLE 11. APPLICATIONS FOR PAYMENT
11.1 Contractor shall submit an Application For Payment, or alternatively
referred to as the Invoice, to CES in accordance with the Schedule of
Values as described below.
11.2 Within fourteen (14) calendar days from the date of execution of the
Work Order, Contractor shall prepare and submit a Schedule of Values
apportioned to the various divisions or phases of the Work. Each line
item contained in the Schedule of Values shall be assigned a monetary
price such that the total of all such items shall equal the Contract
Amount. The Schedule of Values shall be subject to approval by CES and
shall be prepared in such detail as may be required by CES or Customer
and, in addition thereto, CES and Contractor may agree on the extent of
the detail which must be supported by such documents and proof as CES
may require.
11.3 Contractor's Applications For Payment (or invoice) shall be itemized
and supported by the Schedule of Values and any other substantiating
data (including notarization) as CES may require. Applications For
Payment may include payment requests on account of properly authorized
Work Orders.
11.4 Contractor warrants and guarantees that title to all Work covered by
any Application For Payment, whether incorporated in the Project or
not, will pass to CES free and clear of all liens, claims, security
interests or encumbrances upon the date Contractor receives payment for
such Work.
11.5 Waivers and Releases. As a prerequisite for all progress or final
payments to Contractor, Contractor shall provide, in a form
satisfactory to CES and Owner, partial lien or claim waivers in the
amount of the application for payment and affidavits covering its
subcontractors, materialmen, truckers, and suppliers for completed
subcontract work. Such waivers may be conditional upon payment. Waivers
and Releases as described herein. First, a Conditional Waiver and
Release shall be provided to PG&E ES at time of invoicing, in a form
acceptable to PG&E ES, that states that upon receipt of payment from
PG&E ES for Work under the Work Order, Contractor shall waive and
release any and all rights to a mechanic's lien, stop notice, or any
right against any bond for Work completed to date, except for any
disputed amount identified in the waiver and release. Also as a
prerequisite for progress and final payments, Contractor shall provide
Unconditional Waivers and Releases at
13
16
time of invoicing, in a form acceptable to PG&E ES, from any and all of
its subcontractors, materialmen, truckers and suppliers that states
that they have been paid in full to date for all labor, services,
equipment or materials furnished to the Project at Contractor's
request, and thereby waive and release any right to a mechanic's lien,
stop notice, or any right against any bond, except for any disputed
amount identified in the release.
11.6 For each payment period, Contractor shall submit its Application for
Payment (Invoice) for Work performed no later than seven (7) calendar
days prior to the date that CES payment application is required to be
submitted to Customer under the Customer Agreement, unless otherwise
agreed. Contractor may include in its Applications for Payment
materials and equipment purchased by Contractor and suitably stored at
the Site or elsewhere for use in performance of the Work.
ARTICLE 12. PAYMENTS TO CONTRACTOR
12.1 The Work Order will set forth the Contract Amount for the Contractor's
Work and the Progress Payment Schedule. The total Contract Amount shall
constitute the complete compensation for Contractor's Work with respect
to the Project. CES shall be under no obligation to compensate
Contractor any additional amounts beyond the Contract Amount, unless
there is a written Work Order that increases the Contract Amount.
12.2 CES shall require a ten percent (10%) retainage to be withheld from
payments made by CES to Contractor. CES may provide for a reduction of
retainage based upon a percentage of completion of the Work.
12.3 CES may decline to pay Contractor, in whole or in part, to such extent
as may be necessary in CES' good faith opinion to protect CES from loss
because of:
1. Defective or nonconforming Work not remedied;
2. Third party claims or liens filed or reasonable evidence
indicating probable filing of such claims or liens;
3. Failure of Contractor to make payments properly to its
subcontractors;
4. Reasonable evidence that the Work cannot be completed for the
unpaid balance of the Contract Amount;
5. Damage to CES or to Customer, for which Contractor is liable
as set forth in the Contract Documents;
6. Reasonable evidence that the Work will not be completed within
the Contract Time, as properly amended; or
7. Failure to perform the Work in accordance with the Contract
Documents. When these grounds are corrected by Contractor, CES
shall promptly make payment without interest for amounts
withheld based on the deficiencies.
12.4 Any overpayments to Contractor shall, unless otherwise credited or
adjusted, be repaid to CES.
12.5 If CES does not pay Contractor within thirty (30) days after payment is
due, or such time as payment is required by applicable state law,
whichever is earlier, interest at one percent (1%) per month shall
accrue commencing on the date payment was due.
12.6 If Contractor is in any way indebted to CES under this Master
Agreement, moneys due Contractor hereunder may be withheld as an offset
against such other indebtedness.
12.7 Final payment of the balance owed to Contractor shall be due thirty
(30) days after receipt by CES of final payment from Customer for the
Work, or such time as required by applicable state law, whichever is
earlier. However, Contractor shall not be entitled to final payment
until Final Completion of the Work. Contractor agrees to furnish, if
and when required by CES, payroll affidavits, receipts, vouchers,
releases of claims for labor and material and releases from its
subcontractors and vendors, in a form satisfactory to CES, prior to
receipt of any payment. In the event of a payment a payment not made
timely by Contractor, CES may, at its option, make any payment or
portion thereof by joint check payable to Contractor and any of its
subcontractors, suppliers, truckers, and/or materialmen.
12.8 Contractor agrees, upon payment by CES to Contractor for Work pursuant
to this Master Agreement, to waive and release all lien rights that may
exist or which may arise regarding the Work for such Work; and to
furnish, if requested, waivers and releases of liens from every person
or company furnishing labor or material for the Work in a form
acceptable to CES; and to protect CES, the Work, and Customer from all
expenses arising out of Contractor's failure of performance under the
Contract Documents.
12.9 Contractor Payment of its Subcontractors and Suppliers. Upon payment by
CES to Contractor, Contractor shall promptly pay its subcontractors and
suppliers the amounts to which they are entitled. In the event CES has
reason to believe that labor, material, or other obligations incurred
in the performance of the Work are not being paid, CES may give written
notice of a potential claim or lien to the Contractor and may take any
steps deemed necessary to assure that progress payments are utilized to
pay such obligations, including but not limited to the issuance of
joint checks. If upon receipt of notice, the Contractor does not (a)
supply evidence to the satisfaction of CES that the moneys due and
owing have been paid; or (b) post a bond indemnifying the Owner, CES,
and CES' surety, if any, and the premises from a claim or lien, CES
shall have the right to withhold from any
14
17
payments due or to become due to the Contractor a reasonable amount to
protect CES from any and all loss, damage or expense including
attorney's fees that may arise out of or related to any such claim or
lien. If CES has reason to believe that the Contractor is not complying
with the payment terms of this Master Agreement, CES shall have the
right to contact the Contractors subcontractors and suppliers to
ascertain whether they are being paid by the Contractor in accordance
with this Master Agreement.
ARTICLE 13. INSURANCE & BONDS
13.1 Contractor shall maintain the following insurance coverage. Contractor
is also responsible for its Subcontractors maintaining the same
insurance coverage as noted below, unless otherwise specified in the
Work Order.
13.1.1 WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY
1. Workers' Compensation insurance or self-insurance
indicating compliance with any applicable labor
codes, acts, laws or statutes, state or federal,
where Contractor performs Work pursuant to each Work
Order.
2. Employers' Liability insurance shall not be less than
$1,000,000 for injury or death for each accident.
13.1.2 COMMERCIAL GENERAL LIABILITY
1. Coverage shall be at least as broad as the Insurance
Services Office (ISO) Commercial General Liability
Coverage "occurrence" form, with no coverage
deletions.
2. The limit shall not be less than $2,000,000 with
respect to each occurrence for bodily injury,
property damage and personal injury. Such coverage
shall at least be as broad as the Insurance Services
Office (ISO) Commercial Liability Coverage
"occurrence" form, with no coverage deletions.
3. Coverage shall: a) by "Additional Insured"
endorsement add as insureds CES, Customer, and all
directors, officers, agents and employees of CES and
Customer, with respect to liability arising out of
Work performed under this Master Agreement by
Contractor; b) be endorsed to provide cross-liability
coverage, and c) specify that Contractor's insurance
is primary and that any insurance or self-insurance
maintained by CES shall not contribute with it.
13.1.3 BUSINESS AUTO
1. Coverage shall be at least as broad as the Insurance
Services Office (ISO) Business Auto Coverage form
covering Automobile Liability, code 1 "any auto."
2. The limit shall not be less than $1,000,000 for each
accident for bodily injury and property damage.
13.1.3 PROFESSIONAL LIABILITY
1. Professional Liability (Errors and Omissions
Liability) insurance appropriate for the design and
engineering work to be furnished under this Master
Agreement. Coverage shall be for a professional
error, act or omission arising out of the scope of
work provided hereunder.
2. The limit shall not be less than $1,000,000 for each
claim. If coverage is subject to an aggregate, this
aggregate limit shall be twice the claim limit.
3. With respect to any professional liability insurance
provided on a claims-made basis, Contractor shall
maintain such coverage continuously throughout its
performance of its Work under this Master Agreement,
and, without lapse, for a period of four (4) years
thereafter.
13.1.4 BUILDER'S RISK INSURANCE
1. Contractor shall furnish builder's risk insurance on
an "all-risk" basis subject to standard terms,
conditions and exclusions, and with deductibles,
limits and additional peril coverage to cover the
Work provided pursuant to each Work Order.
13.1.6 ADDITIONAL INSURANCE PROVISIONS
1. Before commencing performance of Work, Contractor
shall furnish CES with certificates of insurance and
endorsements of all required insurance for
Contractor.
2. The documentation shall state that coverage shall not
be modified or canceled except after thirty (30) days
prior written notice has been given to CES.
3. The documentation must be signed by a person
authorized by that insurer to bind coverage on its
behalf and shall be submitted to CES.
4. CES may inspect the original policies or require
complete certified copies, at any time and the
policies must be carried by companies reasonably
acceptable to CES.
5. Upon request, Contractor shall furnish CES the same
evidence of insurance for its Subcontractors as CES
requires of Contractor.
13.2 PERFORMANCE AND PAYMENT BONDS
13.2.1 Upon the request of CES for any Project, Contractor shall
furnish a performance and/or payment bond with respect to its
Work performed pursuant to a Work Order. The performance bond
shall guarantee Contractor's faithful performance of all terms
and conditions of the Contract Documents. The performance
and/or payment bond shall provide CES with security for
Contractor's payment of all claims
15
18
of laborers, mechanics, subcontractors, suppliers and the like
for the costs of improvements made with respect to the Project
at issue.
13.2.2 If a performance or payment bond, or both, are required of
Contractor under the Contract Documents, then said bonds shall
be in the full amount of the Contract Price, unless otherwise
specified in the Contract Documents, and shall be in a form
and by a surety mutually agreeable to CES and Contractor.
13.2.3 In the event Contractor shall fail to provide any required
bonds prior to starting the Work or entering the Site, CES may
terminate the Work Order and enter into a contract for the
balance of the Work with another contractor. All CES costs and
expenses incurred as a result of said termination shall be
paid by Contractor.
ARTICLE 14. TERMINATION OR SUSPENSION
14.1 TERMINATION BY CES FOR CAUSE
14.1.1 Grounds for Termination. CES may terminate this Master
Agreement or an individual Work Order for material breach of
this Master Agreement if the Contractor:
1. Persistently or repeatedly refuses or fails to supply
enough properly skilled workers or proper materials;
or
2. fails to make payment to subcontractors of undisputed
amounts for materials or labor in accordance with the
respective agreements between Contractor and the
subcontractors; or
3. persistently disregards laws, ordinances, or rules,
regulations or orders of a public authority having
jurisdiction; or
4. otherwise is guilty of substantial breach of a
provision of the contract Documents; or
5. Makes any material misrepresentations to CES
(including but not limited to misrepresentations in
connection with any Application For Payment); or
6. Is adjudicated as bankrupt; or
7. Makes a general assignment for the benefit of its
creditors.
14.1.2 Notice to Cure: If any of the above reasons exist, CES shall
notify Contractor in writing that Contractor is in default of
this Master Agreement and/or individual Work Order. Contractor
shall have five (5) days after receipt of this notification to
either (1) commence and continue correction of the default
with diligence and promptness to CES' satisfaction, or (2)
present to CES a plan to correct the default in a timely
manner that is satisfactory to CES.
14.1.3 Termination: If Contractor fails to cure the default within
five (5) days, or within the time agreed to by the Parties
pursuant to section 14.1.2 above, CES may without prejudice to
any other rights or remedies of CES, and after giving
Contractor and the Contractor's surety, if any, seven (7) days
written notice of termination of the Master Agreement and/or
an individual Work Order, terminate employment of contractor
and may, subject to any prior rights of the surety:
1. take possession of the site and of all materials,
equipment, tools, and construction equipment and
machinery thereon owned by Contractor;
2. accept assignment of subcontract;
3. finish the Work by whatever reasonable method CES
deems expedient, and
4. shall give Contractor written notice thereof.
Contractor thereafter shall cure the default, or take
specific corrective action, as soon as possible and
in any event within five (5) working days from
receipt of the written notice of default.
14.1.4 If CES terminates the Master Agreement and/or an individual
Work Order for one of the reasons stated in Section 14.1.1,
the Contractor shall not be entitled to receive further
payment until the Work is finished.
14.1.5 If the unpaid balance of the Contract Amount exceeds the costs
of finishing the Work, such excess shall be paid to the
Contractor. If such costs exceed the unpaid balance, the
Contractor shall pay the difference to CES. This obligation
for payment shall survive the termination of this Master
Agreement or individual Work Order.
16
19
14.1.6 CES' failure to exercise any particular rights or remedies set
forth in this Article 14 shall not operate as a waiver of any
other rights or remedies; or prevent CES from exercising such
rights or remedies.
14.2 TERMINATION BY CES FOR CONVENIENCE
14.2.1 Notwithstanding any other terms contained in the Contract
Documents, in the event CES' contract or individual Work Order
with Customer is terminated by Customer, CES shall have the
right to terminate the respective Work Order with Contractor
for CES' convenience by giving Contractor written notice that
the Work Order is terminated.
14.2.2 Payment for Work - Contractor's Termination Statement.
Contractor shall, as soon as practical after receiving a
notice of termination for convenience under Subparagraph
14.2.1, submit to CES, Contractor's statement showing all of
the costs incurred by Contractor in the performance of the
Work terminated pursuant to this Article. CES shall, within
thirty (30) days after receipt of such statement, pay to
Contractor all amounts properly included thereon. The phrase
"costs incurred by Contractor in the performance of the Work
terminated" as used herein shall be deemed to include:
1. Subcontract termination costs;
2. Cancellation fees in regard to equipment and
materials ordered;
3. Cost of all materials and equipment ordered which
cannot be canceled less actual proceeds received upon
the disposition thereof;
4. Restocking fees in regard to materials ordered;
5. Loss of profit for work completed as of the date of
termination;
7. Field work accomplished;
8. Permit, engineering bond and inspection fees;
9. All other direct costs actually incurred by
Contractor which can be demonstrated by invoice,
canceled check or other appropriate documentation,
and
10. Upon payment by CES of the sums set forth in
Subparagraph 14.2.3, Contractor shall transfer to CES
title to all materials, equipment and other property
included or ordered for the terminated Work, the cost
of which was included in Contractor's termination
statement.
14.2.3 Acceptance of such payment by Contractor as being in
accordance with this Article 14 shall constitute a waiver of
all further claims by Contractor against CES under the Work
Order.
14.3 CES' RIGHT TO SUSPEND WORK
14.3.1 CES may order in writing Contractor to suspend, delay or
interrupt all or any part of the Work for such period of time
as CES may determine to be appropriate for the convenience of
CES.
14.3.2 If CES orders a suspension, delay, or interruption of the
Work, an adjustment of the Contract Amount shall be made for
any increase in Contractor's costs of performance, including a
mark-up for overhead and profit as provided in Article 8 of
this Agreement, and of the Contract Time for any increase in
the time required for performance of the Work necessarily
caused by such suspension, delay or interruption. However, no
equitable adjustment shall be made to the extent that
performance would have been so suspended, delayed or
interrupted by any other cause that would not have entitled
Contractor compensation under Article 8 of this Master
Agreement, including the fault or negligence of Contractor.
14.4 CES' RIGHT TO STOP WORK
If Contractor fails to correct defective Work as required elsewhere in
the Contract Documents, or persistently fails to carry out the Work or
supply labor or materials in accordance with the Contract Documents,
CES may order in writing Contractor to stop the Work or the affected
Work Order, or any portion thereof, until the cause for such order has
been eliminated; however, this right of CES to stop the Work shall not
give rise to any duty on the part of CES to exercise this right for the
benefit of Contractor or any other person or entity.
14.5 PARTIES' RIGHT TO TERMINATE
14.5.1 Both CES and Contractor have the right to terminate a Work
Order under Master Agreement, upon seven (7) days written
notice to the other Party, if the Work under a Work Order is
delayed or suspended for a period that exceeds one hundred and
twenty (120) days through no act or fault of CES, the
Contractor or any of the Contractor's subcontractors, its
sub-subcontractor, or their agents or any other persons
performing portions of the Work under contract with the
Contractor, because of acts or
17
20
failures to act by others that are beyond the control of CES,
Contractor, or Contractor' subcontractor(s) and/or if CES
fails to pay Contractor any Progress Payments due and owing
for more than one hundred and twenty (120) days. If a Work
Order is so terminated, Contractor may recover from CES
payment for Work executed and for proven loss with respect to
materials, equipment, equipment, tools, and construction
equipment and machinery, including reasonable overhead, profit
and damages.
14.5.2 Either Party may terminate this Master Agreement without cause
upon sixty (60) days written notice to the other Party, if all
Work Orders then in effect have achieved Final Completion and
no further Work Orders have been issued. Contractor shall be
entitled to payment for all Work performed in accordance with
this Master Agreement.
ARTICLE 15. INDEMNIFICATION
15.1 Contractor shall, to the fullest extent permitted by law, indemnify and
hold harmless Customer, CES, CES' consultants, and their agents,
officers, directors, employees, successors, and assigns of any of them
from and against all claims, damages, losses and expenses and costs of
any kind or description, including, but not limited to attorney's fees
and other related costs and expenses, losses and damages, arising out
of or resulting from performance of the Work. These indemnification
obligations shall be limited to claims, damages, losses or expenses (1)
that are attributable to bodily injury, sickness, disease or death, or
to injury to or destruction of tangible property (other than the Work
itself) including loss of use resulting therefrom, and (2) to the
extent such claims, damages, losses or expenses are caused in whole or
in part by negligent acts or omissions or willful misconduct of
Contractor, its Subcontractors, anyone directly or indirectly employed
by them or anyone for whose acts they may be liable part by a party
indemnified hereunder. Such obligation shall not be construed to
negate, abridge, or reduce other rights or obligations of indemnity
which would otherwise exist as to a party or person described in this
paragraph.
15.2 In claims against CES, or its Customer, consultants and other
subcontractors, agents, employees by an employee of Contractor, its
subcontractors, or anyone directly or indirectly employed by them or
anyone for whose acts they may be liable, the indemnification
obligation under Article 15 shall not be limited by a limitation on the
amount or type of damages, compensation, or benefits payable by or for
Contractor, or its subcontractors, under workers' compensation acts,
disability benefits acts, or other benefit acts.
ARTICLE 16. DISPUTE RESOLUTION
In the event of a dispute, controversy, or claim arising out of or relating to
this Master Agreement, the Parties shall confer and attempt to resolve such
matter informally. If such dispute or claim can not be resolved in this manner,
then the dispute or claim shall be referred first to the Parties' executive
officers for their review and resolution. If the dispute or claim still can not
be resolved by such officers, then the Parties may agree to submit to
non-binding mediation or either Party may file a written demand for arbitration
with the American Arbitration Association ("AAA") and shall send a copy of such
demand to the other Party. The arbitration shall be conducted pursuant to the
Commercial Arbitration Rules of the AAA in effect at the time the arbitration is
commenced. The award rendered by the arbitrator shall be final and binding on
the Parties and shall be enforceable in any court having jurisdiction thereof
and of the Parties. The arbitration shall be heard by one mutually agreeable
arbitrator, who shall have experience in the general subject matter to which the
dispute relates. The arbitration shall take place in the state where the project
under dispute is located, unless both Parties mutually agree to a different
venue for arbitration.
ARTICLE 17. MISCELLANEOUS PROVISIONS
17.1 Cross references, captions, headings, the index and citations of
sections and subsections in this Master Agreement are for the
convenience of Contractor and CES, and they are not intended to be
plenary or exhaustive nor are they intended to be considered in
interpreting this Master Agreement or any other part of the Contract
Documents.
17.2 There are incorporated in this Master Agreement the provisions of
Executive Order 11246 (as amended) of the President of the United
States on Equal Employment Opportunities and the rules and regulations
issued pursuant thereto with which Contractor represents that it will
comply unless exempted.
17.3 If any clause of the Contract Documents is held as a matter of law to
be unenforceable or unconscionable, the remainder of the Contract
Documents shall be enforceable without such clause.
17.4 No provisions of the Contract Documents shall in any way inure to the
benefit of any third party (including the public at large) so as to
constitute such person as a third party beneficiary of the Contract
Documents, except as specifically provided elsewhere in the Contract
Documents.
17.5 Contractor shall subordinate, and shall have its Subcontractors
subordinate, any lien or claim or right of lien against the Project and
its real property which Contractor and his Subcontractors may now or
hereafter have on account of construction labor, services or materials
provided under the Contract Documents in connection with the Work or
otherwise for the Project, to any promissory note, loan agreement,
mortgage, deed to secure debt, or other instrument executed by CES or
Customer.
18
21
17.5 NOTICES. Any notices hereunder, except as specifically provided
elsewhere in the Contract Documents, shall be given in writing and
shall be delivered by hand or by first class certified U. S. Mail,
return receipt requested to the addresses set forth below, or to such
other address as either Party may substitute by written notice to the
other in the matter contemplated herein, and will be deemed given when
delivered, or, if delivery is not accomplished by some fault of the
addressee, when tendered.
TO CES: WITH COPY TO: TO CONTRACTOR:
------- ------------- --------------
Chevron Energy Solutions Chevron Energy Solutions Contractor Name
Street Address 345 California Street, Suite 3200 Street Address
City, State, Zip Code San Francisco, CA 94104 City, State, Zip Code
Attn: Name, Title Attn: Legal Department Attn: Name, Title
Phone Number: Phone Number:
Fax Number: Fax Number:
17.6 SIGNS. No signs shall be placed on the Project site by Contractor or
any Contractor subcontractor without the prior written approval of CES.
17.7 GOVERNING LAW. The Contract Documents shall be governed by the laws of
the State of California excluding any conflicts of law principles.
17.8 FINANCIAL BOOKS AND RECORDS. Contractor shall maintain financial books,
documents, and cost accounting records with respect to the Contract
Amount on a cash basis in accordance with generally accepted accounting
principles. These records shall be made available to CES, upon request
for audit, inspection or copying to the extent that they relate to any
issue of entitlement to payment or adjustment of the Contract Amount.
17.9 THIRD PARTY BENEFICIARIES. This Master Agreement shall not create any
third party beneficiary rights or obligations with respect to any third
party.
17.10 SUCCESSORS AND ASSIGNS. Each Party shall have the right to assign its
rights and interests in this Master Agreement and individual Work
Orders to an affiliate, subsidiary, or successor company who shall be
bound to the terms and conditions of this Master Agreement.
17.11 CONFIDENTIAL AGREEMENT. The terms and conditions of this Master
Agreement shall be subject to that certain Mutual Nondisclosure
Agreement between CES and Contractor dated [ADD DATE OF MNDA].
17.12 DUPLICATE ORIGINALS. Two (2) duplicate originals of this Master
Agreement shall be executed; each of which shall be deemed an original
but both of which together shall constitute one and the same
instrument.
17.13 ENTIRE AGREEMENT. This Master Agreement contains the entire agreement
between the Parties and there are no oral or written representations,
understandings, or agreements between the Parties respecting the
subject matter of this Master Agreement, which are not fully expressed
herein.
IN WITNESS WHEREOF, the Parties hereto have executed this Master Agreement as of
the day and year first above written.
CONTRACTOR LEGAL NAME CHEVRON ENERGY SOLUTIONS, L. P.
By: By:
------------------------------------ -------------------------------
(Signature) (Signature)
Name: Name:
----------------------------------- ------------------------------
Title: Title:
--------------------------------- ----------------------------
19
22
[CHEVRON ENERGY SOLUTIONS LOGO]
EXHIBIT A
WORK ORDER SAMPLE FORM
CES CONTRACT NUMBER:
------
WORK ORDER #
------
TO MASTER AGREEMENT
FOR DESIGN AND CONSTRUCTION
THE MASTER AGREEMENT FOR DESIGN AND CONSTRUCTION ("Master Agreement"),
entered into on [MONTH DAY, YEAR] by and between CHEVRON ENERGY SOLUTIONS, L.P.,
a Delaware limited partnership with principal offices at 345 California
Street, Suite 3200, San Francisco, California 94104 ("CES") and [ADD
CONTRACTOR'S NAME, ADDRESS, AND PHONE NUMBER, a [ADD STATE] Corporation, with
principal offices located at [ADD ADDRESS AND PHONE NUMBER], or its applicable
wholly owned subsidiary identified below in Section 2, ("Contractor") is hereby
amended on this date [ADD DATE OF WORK ORDER EFFECTIVE DATE] ("Work Order
Effective Date") by this Work Order which is fully incorporated into the MASTER
AGREEMENT as follows:
CUSTOMER. The Customer for whom the Work will be performed is _________________.
The address and phone number of the Customer
is ________________________________________.
SUBSIDIARY COMPANY OF [ADD CONTRACTOR'S NAME] PERFORMING WORK, IF ANY: [ADD
NAME, ADDRESS, CONTACT NAME, AND PHONE
NUMBER OF SUBSIDIARY COMPANY PERFORMING THE
WORK UNDER THIS WORK ORDER. LEAVE BLANK IF
NONE.]
-------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
3. SCOPE OF WORK/ SITE LOCATIONS. The Scope of Work at each Site Location,
including the description of the Scope of Work, including equipment and
materials to be provided and installed and any other Work to be
performed; Warranty provisions; and the Operations and Maintenance
provisions, if any; to be provided under this Work Order is identified
on ATTACHMENT 1 - "SCOPE OF WORK/SITE LOCATIONS" attached hereto and
incorporated herein. Unless otherwise described herein or in Attachment
1, Contractor shall be responsible for the removal, transport, and
proper disposal of Hazardous Substances identified in the Scope of Work
attached hereto and to provide to CES certification that such equipment
was properly transported from the site location(s) and properly
disposed of.
4. PROJECT SCHEDULE. The Project Schedule for each Site Location where
Work shall be performed by Contractor pursuant to this Work Order,
including Commencement Date, Substantial Completion Date, and
Operational Date, is identified on "ATTACHMENT 2 - PROJECT SCHEDULE"
attached hereto and incorporated herein
5. CONTRACT AMOUNT FOR WORK ORDER. The total Contract Amount for
performance of this Work Order, schedule of payment, and payment terms
is as follows: [ADD TOTAL AMOUNT HERE AND ALSO INDICATED IF CONTRACT
AMOUNT WILL BE PAID AS A ONE-TIME LUMP SUM, FIXED FEE PAID VIA PROGRESS
PAYMENTS, BASED ON TIME AND MATERIALS NOT TO EXCEED A CERTAIN DOLLAR
AMOUNT, AND IF PROGRESS PAYMENTS WILL BE PAID ON A MONTHLY BASED ON
WORK COMPLETED DURING THE PRIOR MONTH, OR BY ACHIEVEMENT OF DEFINED
MILESTONES, ETC.]
6. CONTRACTOR/ENGINEERING LICENSE(S). Contractor possesses the following
Engineering and/or Contractor license(s) and/or certificates, with the
number indicated, expiration date, and in what state the licensed was
issued, as required by law to perform the work as described in the
Scope of Work at the Site Locations identified on Attachment 1. If any
work is to be performed by a subcontractor to the Contractor, please
also indicate your subcontractor's name along with the same following
information required to perform such work.
CONTRACTOR/ENG. NAME LICENSE/CERTIFICATE TYPE LICENSE NUMBER EXPIRATION DATE STATE ISSUED
-------------------- ------------------------ -------------- --------------- ------------
7. GENERAL TERMS AND CONDITIONS. Except for terms and conditions provided
in this Work Order, all Work performed pursuant to this Work Order
shall be subject to the terms and conditions of the Master Agreement.
If this Work Order is executed by a wholly owned Subsidiary Company of
Contractor, such Subsidiary Company agrees to perform such work and be
bound by the above referenced Master Agreement, a copy of which shall
be provided by CES to the Subsidiary Company upon request.
IN WITNESS WHEREOF, the Parties hereto have executed this Work Order as of the
day and year first above written.
CONTRACTOR (OR CONTRACTOR'S SUBSIDIARY CHEVRON ENERGY SOLUTIONS, L.P.
COMPANY) NAME
By: By:
------------------------------------ -------------------------------
(Signature) (Signature)
Name: Name:
----------------------------------- ------------------------------
Title: Title:
--------------------------------- ----------------------------
23
CES Contract No.
-----------
EXHIBIT B
DEFINITIONS
For the purposes of this Master Agreement, including all Work Orders
and Change Orders, the defined terms herein shall have the meaning set forth as
follows:
1. APPLICABLE LAWS: "Applicable Laws" shall mean all laws, building codes,
rules, regulations, or orders of any federal, state, county, local, or
other governmental body, agency, or other authority having jurisdiction
over the performance of the Work, as may be in effect at the time the
Work is undertaken.
2. APPLICABLE PERMITS: "Applicable Permits" shall mean all permits,
waivers, authorizations, or licenses issued or required to be issued by
any federal, state, county, local, or other governmental body, agency,
or other authority having jurisdiction over the performance of the
Work, as may be in effect at the time the Work is undertaken.
3. APPLICATION FOR PAYMENT: "Application for Payment" shall mean the
Contractor's application requesting and verifying its entitlement to
payment for Work performed, including all supporting documentation as
set forth herein in Articles 11 and 12 hereof.
4. CES: "CES" refers to Chevron Energy Solutions, L. P., a wholly owned
entity of the Chevron Products Company. The term CES means CES or its
authorized representative.
5. CHANGE: "Change" shall mean any addition to, deletion from, suspension
of or other modification to the quality, schedule, function or intent
of the Work, including without limitation any such addition, deletion,
suspension or other modification that effects a change in the Scope of
Work, Contract Amount, or Contract Time as provided for in Article 8 of
the Master Agreement.
6. CHANGE ORDER: "Change Order" shall mean a written document signed by
both Contractor and CES that describes the changes to the terms of an
individual Work Order and that formally amends an individual Work
Order. A Change Order may add to, delete, modify, and/or change and
amend the Work Order's scope of work, compensation, and/or the schedule
for completion of the Work identified in the Work Order.
7. CLAIMS: "Claims" shall mean any and all actions, claims, losses,
damages, expenses or liabilities of either party arising from or a
result of this Master Agreement, Work Order, and/or Change Orders.
8. CONSTRUCTION: "Construction" shall mean any Work to be performed that
involves any and all construction, alteration, repair, addition to,
subtraction from, improving, moving, wrecking or demolishing any
building, highway, road, parking facility, excavation, or other
structure or improvement, or to do any part thereof, including the
erection of scaffolding or other structures or works in connection
therewith, and the cleaning of grounds or structures in connection with
any of the above activities.
9. CONSTRUCTION DOCUMENTS: "Construction Documents" shall mean the Final
Construction Documents, and any and all Change Orders affecting those
documents, that provide the final plans and specifications that
describe the technical requirements for the installation of all the
materials and equipment pursuant to this Master Agreement and
individual Work Order.
10. CONTRACT AMOUNT: "Contract Amount" shall mean the amount of
compensation due to Contractor for the successful, proper and timely
completion of work. The Work order shall state the Contract Amount.
Unless modified by a Work Order, or Change Order, the Contract Amount
is the maximum amount of compensation payable by CES to Contractor for
the Work.
11. CONTRACT DOCUMENTS: "Contract Documents" shall mean collectively this
Master Agreement, any Work Order(s), the Plans and Specifications
prepared or to be prepared by the Engineer (or Contractor) for the
particular Project and any other Construction Documents.
12. CONTRACT TIME: "Contract Time" means the period of time after the Date
of Commencement of the Work allotted in the Work Order in which
Contractor must achieve Final Completion of the Work, as may be
adjusted by Work Order.
13. CONTRACTOR: "Contractor" means the person or entity identified as such
in this Master Agreement, Work Order(s), and Change Order(s). The term
Contractor means Contractor, Contractor's Subsidiary Company as defined
herein, or its authorized representative.
14. CUSTOMER: "Customer" means the person or entity identified as such in
the Work Order. The Customer will have entered into a Customer
Agreement directly with CES.
15. CUSTOMER AGREEMENT: "Customer Agreement" means the agreement entered
into by CES and its Customer under which CES will, for consideration
received, furnish specified improvements at the Customer's facility.
16. DATE OF COMMENCEMENT OF THE WORK: "Date of Commencement of the Work"
means the date established as such in a written notice to proceed to be
issued by CES to Contractor. Contractor shall not commence work prior
to the issuance of a written notice to proceed by CES.
17. DAY: "Day" means a calendar day unless otherwise specifically
designated.
18. DRAWINGS OR PLANS: "Drawings" or "Plans" means all drawings, plans,
depictions, and designs either provided by CES, or prepared by
Contractor, and required for the construction, erection, installation
and completion of the Work.
19. ENGINEER: "Engineer" means the person or entity lawfully licensed to
practice engineering, identified as such in the Work Order. For certain
projects, Engineer may also be the same entity as Contractor. The term
Engineer means the Engineer or its authorized representative.
20. FINAL COMPLETION: "Final Completion" means the acceptance of the
completed Project by CES and Customer from Contractor in accordance
with the provisions of Article 6 of this Master Agreement.
21. HAZARDOUS SUBSTANCES: "Hazardous Substances" shall mean any hazardous,
toxic or dangerous wastes, substances, chemicals, constituents,
contaminants, pollutants, and materials and any other carcinogenic,
corrosive, ignitable, radioactive, reactive, toxic or otherwise
hazardous substances or mixtures (whether solids, liquids, gases) now
or at any time subject to
2
24
regulation, control, remediation or otherwise addressed under
Applicable Laws; (ii) any "hazardous substance" as defined by the
Resource, Conservation and Recovery Act of 1976 (42 United States Code
("U.S.C."), Section 6901 et seq.), as amended, and regulations
promulgated thereunder; (iii) any "hazardous, toxic or dangerous waste,
substance or material" specifically defined as such in (or for the
purposes of) the Comprehensive Environmental Responses, Compensation
and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as amended,
and regulations promulgated thereunder; and (iv) any hazardous, toxic
or dangerous waste, substance, or material as defined in any so-called
"superfund" or "superlien" law.
22. INSTALLATION: "Installation" shall mean the setting up and placement of
any equipment or materials in the manner it will be operated, in
accordance with the Work Order and in accordance with all Applicable
Laws. Installation will not be deemed complete until the Operational
Date.
23. INSTALLATION LOCATION: "Installation Location" shall mean that area or
areas where the Project materials and equipment and any other energy
related equipment as described in the Work Order shall be located.
24. INTEREST: "Interest" shall mean interest calculated at the lesser of
the per annum rate of interest announced from time to time by Citibank,
at its "prime" rate for commercial loans plus two percent (2%) or the
maximum rate permitted by Applicable Laws.
25. LOSSES. "Losses" shall mean claims, actions, damages, losses,
liabilities, costs, and/or expenses including reasonable attorney's
fees.
26. MASTER AGREEMENT: "Master Agreement" shall mean this Master Agreement
for Design and Construction and all Exhibits attached hereto which are
incorporated herein, as it may be amended or modified from time to time
in accordance with the provisions hereof.
27. MASTER AGREEMENT EFFECTIVE DATE: "Master Agreement Effective Date"
shall mean the date this Master Agreement is fully executed as noted
above and is the date the Master Agreement is in full force and effect.
28. MATERIAL CHANGED CONDITION: "Material Changed Condition" shall mean one
or more of the following conditions that impact the Project Schedule
and/or Cost: 1) parties or conditions outside the control of the
parties caused delays in Project Schedule; 2) discovery of differing
and unexpected site conditions not previously disclosed by CUSTOMER and
could not have been readily discoverable prior to start of Work; 3)
discovery of hazardous wastes or material not been previously
disclosed; (4) adverse weather conditions not reasonably anticipated;
(5) delay in equipment and material deliveries outside the Parties'
control; and 6) any other condition that could not have been reasonably
anticipated by the Parties and is outside the Parties" control.
29. NOTICE OF CLAIM: "Notice of Claim" means a written notice from
Contractor to CES provided in accordance with Article 8 of this Master
Agreement, identifying an order, event or occurrence that Contractor
contends should cause a Change in the Work entitling Contractor to an
adjustment of either the Contract Amount or Contract Time or both.
30. OPERATIONAL DATE: "Operational Date" shall mean the date when the
installed Work is substantially complete in accordance with the
Contract Documents so that the Work is functional and can be generally
used for the purpose for which the Work is intended.
31. OPERATIONS AND MAINTENANCE SERVICES OR O&M: Operations and Maintenance
Services or O&M shall mean the provision of operations and maintenance
services for the equipment, and any and all other material, hardware,
or software provided and installed by CES, or its subcontractors, in
accordance with the Work Order.
32. PARTY OR PARTIES: "Party" or "Parties" shall mean CES, CUSTOMER, each
or both of them, as the context may require pursuant to the terms and
conditions of this Master Agreement.
33. PROJECT: "Project" shall mean the entirety of Work to be performed by
Contractor per the terms and conditions of each Work Order, and any
Change Orders to a Work Order, as well as all efforts of CES and other
entities regarding the Work, Site, facilities and other matters
referred to in the Contract Documents, all as an integrated whole.
34. PROJECT SCHEDULE: "Project Schedule" means the CES-approved schedule of
Work identified in the Work Order, prepared pursuant to Paragraph 7.3
of this Master Agreement, showing the sequences, duration, and
interrelationships and establishing Contractor's plan for accomplishing
Final Completion within the Contract Time.
35. SCOPE OF WORK: Scope of Work" shall mean the amount and extent of Work
that is contemplated to be performed by Contractor per the terms of
this Master Agreement and as specifically described in each Work Order,
as amended by Change Orders. Should there be any conflict between the
Work Order plus its Change Orders and the terms of this Master
Agreement, the Work Order together with the agreed upon Change Orders
shall take precedence and shall establish the Scope of Work for the
each Project.
36. SITE: "Site" means the real property upon which the Project is
situated. The Site shall be particularly described in Work Order.
37. SPECIFICATIONS: "Specifications" means all specifications; equipment,
materials and supplies lists; schedules and other written information
either provided by CES or prepared by Engineer (or Contractor) and
required for the construction, erection, installation and completion of
the Work.
38. SUBSIDIARY COMPANY: "Subsidiary Company" means a company that is wholly
owned by Contractor and to whom Contractor may assign individual Work
Orders under this Master Agreement and such Subsidiary Company shall be
bound to the terms and conditions of both the Work Order and this
Master Agreement in performance of such Work.
39. SUBSTANTIAL COMPLETION: "Substantial Completion". means the stage in
the progress of the Work when the Work is sufficiently complete in
accordance with the Contract Documents so that the Customer can utilize
and take beneficial use of the Work for its intended use.
40. TIME: "Time" shall mean the time period within which Contractor shall
complete the Work in accordance with the Work Order Project Schedule.
41. WORDS: "Words" and abbreviations which have well-known technical or
trade meanings are used in the Contract Documents in accordance with
such recognized meanings.
42. WORK: "Work" shall mean the design, procurement, installation and/or
construction required for the Project and includes all labor necessary
to produce such services, all materials, fabrications, assemblies, and
equipment incorporated or to be incorporated in such construction
necessary to achieve Final Completion of the Project, including such
materials and
3
25
equipment which may be consumed or used but not actually incorporated
in such construction. Depending upon the terms of each Work order, the
Work may include design, supplying, installing, maintaining, operating,
and warranting certain materials and equipment, and providing any other
energy-related services specified in the Work Order.
43. WORK ORDER: "Work Order" means a document executed by both Contractor
and CES that describes, at minimum, the scope of work to be performed,
the compensation Contractor shall be paid for such Work, and the
schedule for completion of the Work described therein, and such Work
Order shall constitute an amendment to this Master Agreement. A sample
Work Order Form is attached hereto as Exhibit A. Contractor shall not
perform any Work with respect to any Project until the parties have
first executed a Work Order for the Work. Any work done by Contractor
prior to the execution of a Work Order shall be done at Contractor's
expense. A Work Order may be executed by Contractor, or a wholly owned
Subsidiary Company. If a Subsidiary Company executes a Work Order, the
Contractor and Subsidiary Company shall be bound to the terms and
conditions of such Work Order.
44. WORK ORDER EFFECTIVE DATE: "Work Order Effective Date" shall mean the
date an individual Work order is fully executed and the date the Work
Order is in full force and effect.
4