EXHIBIT 10.06
MASTER AGREEMENT
FOR DESIGN AND CONSTRUCTION
SERVICES TO BE PROVIDED BY:
______________________________________
CHEVRON ENERGY SOLUTIONS CONTRACT NO. _______
DATE: February 1, 2001
107
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.
1/00
ARTICLE 3 PARTIES' INTENT..................................................1
ARTICLE 4 THE WORK.........................................................2
ARTICLE 5 CONTRACTOR'S DUTIES.............................................2
ARTICLE 6 FINAL COMPLETION.................................................7
ARTICLE 7 CONTRACT TIME AND SCHEDULE.......................................9
ARTICLE 8 CHANGES IN SCOPE OF WORK AND CLAIMS..............................10
ARTICLE 9 SAFETY OF PERSONS AND PROPERTY...................................12
ARTICLE 10 WARRANTIES, UNCOVERING OF WORK AND CORRECTION OF WORK.............14
ARTICLE 11 APPLICATIONS FOR PAYMENT..........................................15
ARTICLE 12 PAYMENTS TO CONTRACTOR............................................15
ARTICLE 13 INSURANCE & BONDS.................................................16
ARTICLE 14 TERMINATION OR SUSPENSION.........................................18
ARTICLE 15 INDEMNIFICATION...................................................20
ARTICLE 16 DISPUTE RESOLUTION................................................20
ARTICLE 17 MISCELLANEOUS PROVISIONS..........................................20
108
[Chevron Logo Appears Here[ CHEVRON
________________
Energy Solutions
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.
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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.
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.
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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.
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.
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Master Agreement for Design and Construction v.5 [Date]
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.
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.
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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
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
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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.
5.6 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.
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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"):
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.
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Master Agreement for Design and Construction v.5 [Date]
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 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.
[Add Contractor Name] 8
Master Agreement for Design and Construction v.5 [Date]
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
[Add Contractor Name] 9
Master Agreement for Design and Construction v.5 [Date]
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
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., hall 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
[Add Contractor Name] 10
Master Agreement for Design and Construction v.5 [Date]
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.
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:
[Add Contractor Name] 11
Master Agreement for Design and Construction v.5 [Date]
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.
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;
[Add Contractor Name] 12
Master Agreement for Design and Construction v.5 [Date]
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.
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.
[Add Contractor Name] 13
Master Agreement for Design and Construction v.5 [Date]
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.
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.
[Add Contractor Name] 14
Master Agreement for Design and Construction v.5 [Date]
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.tain 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 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.
[Add Contractor Name] 15
Master Agreement for Design and Construction v.5 [Date]
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 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.
[Add Contractor Name] 16
Master Agreement for Design and Construction v.5 [Date]
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 of laborers, mechanics, subcontractors,
suppliers and the like for the costs of improvements made with
respect to the Project at issue.
[Add Contractor Name] 17
Master Agreement for Design and Construction v.5 [Date]
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.
[Add Contractor Name] 18
Master Agreement for Design and Construction v.5 [Date]
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
[Add Contractor Name] 19
Master Agreement for Design and Construction v.5 [Date]
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 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.
[Add Contractor Name] 20
Master Agreement for Design and Construction v.5 [Date]
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.
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 SState of California 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.
17.10SUCCESSORS 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.
17.11CONFIDENTIAL 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].
17.12DUPLICATE 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.
17.13ENTIRE 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.
[Add Contractor Name] 21
Master Agreement for Design and Construction v.5 [Date]
IN WITNESS WHEREOF, the Parties hereto have executed this Master Agreement
as of the day and year first above written.
DEMARCO ENERGY SYSTEMS OF AMERICA, INC. CHEVRON ENERGY SOLUTIONS, L. P.
By: /S/ Victor M. DeMarco By: /S/ Lee J. Hanson
----------------------------------- ----------------------------
(Signature) (Signature)
Name: Victor M. DeMarco Name: Lee J. Hanson
--------------------------------- --------------------------
Title: President Title: SR VP Operations
-------------------------------- -------------------------
[Add Contractor Name] 22
Master Agreement for Design and Construction v.5 [Date]
EXHIBIT A
WORK ORDER SAMPLE FORM
CES CONTRACT NUMBER: ______
[Chevron Logo Appears Here] CHEVRON
________________
Energy Solutions
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
[Add Contractor Name]
Master Agreement for Design and Construction v.3
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
COMPANY) NAME CHEVRON ENERGY SOLUTIONS, L. P.
BY: BY:
----------------------------------------- ------------------------------
(Signature) (Signature)
NAME: NAME:
----------------------------------------- ------------------------
TITLE: TITLE:
----------------------------------------- ------------------------
[Add Contractor Name]
Master Agreement for Design and Construction v.5
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.
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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 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.
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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 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.
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