EXHIBIT 10.6
CONTRACT NUMBER: HOU-2083
EXXON PIPELINE COMPANY
ENGINEERING SERVICES CONTRACT
This Contract made the __ day of _____________, 1996 between EXXON
PIPELINE COMPANY, a Delaware corporation, having offices at 000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000 (hereinafter referred to as "EXXON") and IDS TECHNICAL
SERVICES.,a Texas Corporation having offices located at 000 Xxxxxxx Xxxxx Xxxxx,
Xxxxxxxx #000, Xxxxxxx, XX. 77073 - 6016 (hereinafter referred to as
"Contractor"). NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Parties agree as follows:
ARTICLE 1 SERVICES
1.1 Contractor shall provide EXXON with the services set out in Exhibit "A"
together with all equipment incidental to providing such services ("Services").
1.2 The Services performed under this Contract shall be performed solely by
Contractor and such of its subsidiaries, subcontractors, suppliers, agents, and
their respective employees as EXXON may approve in advance ("Subcontractors").
No such approval shall relieve Contractor from any of the obligations of this
Contract. Contractor shall be liable and responsible for all activities of its
Subcontractors under this Contract.
1.3 Contractor acknowledges that this is a non-exclusive Contract for providing
Services and that EXXON is under no obligation and has made no representation to
Contractor that any additional Services will be required during the Term other
than specified in Exhibit "A."
ARTICLE 2 DESCRIPTION OF SPECIFICATIONS AND EXHIBITS
The exhibits and related attachments listed below ("Exhibits")
constitute terms and conditions of this Contract. In the event of conflict
between any term(s) of any Exhibit(s) and the term(s) of the Principal Document,
the term(s) of the Principal Document shall take precedence and shall govern.
Description Title
Exhibit "A" Job Description for Engineering Services
Exhibit "B" Bid Sheet
Exhibit "C" Drug and Alcohol Provision
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR
3.1 Contractor represents and warrants that it is engaged either as its sole
business or as a primary aspect of its business in providing the Services; that
it has the expertise, experience, capability and specialized knowledge
("Competence") to perform the Services; it has the necessary tools, equipment
and personnel to provide the Services; that it has or will obtain at its expense
before performing any Services all the necessary certificates, permits, licenses
and authorizations to perform the Services; that it shall perform all Services
in accordance with all applicable federal, state, and local laws, rules and
regulations; and that it shall perform all Services in good faith, promptly,
with due diligence and Competence.
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3.2 Contractor represents and warrants that it shall not perform any aspect of
the Services if it knows or has reason to believe that such aspect of such
Services cannot be performed in a manner in conformity with the provisions of
this Contract. In such case, Contractor shall immediately advise EXXON and work
with EXXON to develop a mutually satisfactory resolution for the inability to
perform. Contractor further represents and warrants that, if provided under this
Contract, it shall ascertain whether the drawings and specifications are at
variance with the law before starting performance of any Services. If Contractor
discovers any such variance, it shall promptly notify EXXON in writing and the
necessary changes shall be made before proceeding with the part of Services
affected.
3.3 Contractor represents that all work will be performed in a good, workmanlike
manner and in accordance with generally accepted professional engineering
practices. All work will be in conformity with Release Order, Work Proposal,
Change Order and/or the Target Schedule as described in Attachment I and all
other provisions of this Contract.
3.4 Contractor guarantees and warrants that all Services performed hereunder
(including goods and equipment provided in connection therewith) shall be
without deficiency or defect and in conformity with this Contract. In the event
that any defect, deficiency or lack of conformity is discovered by Exxon, Exxon
shall promptly notify Contractor in Writing. Contractor shall at Exxon's option,
immediately redesign or otherwise correct the work at no cost to Exxon in
accordance with the representations contained in this Article 3 and this
Contract, or Exxon or its designee shall redesign or otherwise correct the work,
and Contractor shall reimburse Exxon for the reasonable expenses of such
corrective work. Contractor shall also be liable to Exxon for all cost
associated with correcting or redoing work done based on services provided under
this Contract, including without limitation, costs of disassembly or removal,
costs of all labor, materials and equipment necessary for the correction, costs
of any ancillary work related to the correction, and all reassemble or
reconstruction costs. This warranty is in addition to any other warranty,
express or implied under statute or law, to which Exxon may be entitled for
goods and services. The remedies described herein are without limitation of the
rights that Exxon may otherwise have at law or equity.
3.5 All warranties and representations stated or referred to in this Contract
shall remain in effect for such time, after expiration or termination of this
Contract, as is reasonably necessary to determine whether Contractor has
fulfilled its obligations under all warranties.
ARTICLE 4 TERM
4.1 This contract shall be for a term of three (3) years commencing upon the
execution of this contract; provided, however, that EXXON may terminate this
Contract upon seven (7) days written notice to Contractor and Contractor may
terminate this Contract upon thirty (30) days written notice to EXXON. In the
event of termination, the provisions of Article 20 shall be applicable.
ARTICLE 5 COMPENSATION
5.1 Contractor shall be paid for Services performed by it and its Subcontractors
based on the fixed rates set out in Exhibit "B" ("Fixed Rates"). The Fixed Rates
are defined as hourly and/or daily rates for each individual designated as
performing Services, including regular hours and overtime hours. Contractor
shall not incur any overtime hours without the prior written approval of EXXON.
Fixed Rates specified in Exhibit "B shall include but not be limited to
supervision, burdens, overhead, reproduction, computer operations, insurance,
taxes, profits and fees and shall be the only charges for which EXXON shall be
liable in the performance of the Services.
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5.2 Reimbursable expenses of Contractor under this Contract must be approved in
advance by EXXON. Contractor will not be reimbursed for automobile mileage
expense or any other travel expenses unless specifically requested to travel
outside the Houston area(s). Invoices for expense reimbursement will contain an
appropriate accounting of expenses incurred with receipts or other appropriate
evidence attached.
ARTICLE 6 INVOICING AND PAYMENT
6.1 Contractor shall submit invoices to Exxon Pipeline Company in accordance
with specific Release Orders. Each invoice shall set out separately the amounts
chargeable to each phase of the Services, the Contract number and shall be
accompanied with supporting documentation as EXXON may from time to time
specify. Contractor shall submit invoices in accordance with instructions in the
Release Order. EXXON shall pay all invoices submitted by Contractor within
thirty (30) days of receipt of a correct invoice with supporting documentation
subject to the provisions of Article 8 and subject to any retainage required by
law.
6.2 Contractor shall furnish each day to EXXON's representative authorizing the
work to be performed hereunder, or to such person as he may designate, a copy of
Contractor's daily time report applicable to the work being performed under this
contract, which report shall be certified by Contractors supervisor or xxxxxxx
to be true and correct. Such report shall include the applicable contract
number, the name of EXXON's representative who requested the work, the name of
each employee of the Contractor engaged in work hereunder, his occupational
classification, the number of hours worked by him, a description of the work on
which he was engaged, and the specific location of such work. The report shall
also include, where transportation or equipment is used by Contractor in
performing work hereunder, a statement of the kind and amount of transportation
used, the description of equipment used, whether such equipment was furnished
with or without operator, the number of hours used, a description of the work on
which it was engaged, and the specific location of such work. If equipment is
furnished with operator or driver, the name of the operator or driver shall be
shown. EXXON and its duly authorized representative shall have the right to
check the number of men employed on such work, their occupational
classification, and the time they were engaged in such work, and to check all
equipment used hereunder by Contractor and the length of time it was used in the
performance of such work under this contract. Invoices submitted for such work
shall be supported by properly approved daily time reports. If an invoice covers
more than one job, charges applicable to each job shall be clearly segregated.
Invoices submitted for such work shall be supported by properly approved daily
time reports.
ARTICLE 7 CHANGES
7.1 In the event any change, alteration, deletion or addition ("Change") in the
Services is required by EXXON then such Change shall be made pursuant to a
written Change Order. Any such Change shall not be effective until there is a
Change Order duly executed by the Parties. Any Change Order shall be deemed to
include all costs associated with the change(s) being made. The provisions of
this Contract shall be deemed to apply to any Change Order.
ARTICLE 8 LIENS
8.1 Contractor agrees to furnish, at EXXON's request, a list of all
Subcontractors, if any, providing Services, together with all evidence
satisfactory to EXXON upon completion of Services that all claims for payment of
Services performed have been satisfied and paid and that there are no
unsatisfied claims for injuries to persons or properties. EXXON retains the
right to withhold from any payments to Contractor such amounts as EXXON deems
sufficient to
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protect EXXON and its property against any claim by Contractor, its
Subcontractors and their respective employees which could or may become a lien
or claim against EXXON or its property. EXXON may, at any time, pay and
discharge such lien or claim and deduct the amount so paid, together with costs
and attorneys' fees, from any payment then due or thereafter to become due to
Contractor or from any other sum owing to the Contractor under this Contract or
any other contract. If any lien or claim remains unsatisfied after payment has
been made by EXXON to the Contractor under this Contract, Contractor shall
refund to EXXON the entire sum that EXXON may then be compelled to pay for
discharging such lien or claim, together with all related costs and attorneys'
fees. Contractor shall indemnify and save EXXON completely harmless from all
costs (including attorneys' fees and other litigation costs) and claims
associated with the payment and discharge of any liens arising under this
Contract.
ARTICLE 9 TAXES, LICENSES, FEES, AND CONTRIBUTIONS
9.1 Contractor shall be solely liable for and pay any and all licensee fees,
contributions, and taxes related to Services performed under this Contract,
including sales and use taxes, license fees, all employment taxes and
contributions at law or under contract such as (but not limited to) unemployment
compensation insurance, old age benefits, welfare fund, pensions and annuities
and disability insurance. Should Contractor fail to make any such payments,
EXXON shall be entitled to make such payments on behalf of the Contractor and
deduct such sums as may be due under this Contract. Further, Contractor shall
provide EXXON with all necessary information to make such payments, shall
reimburse EXXON with respect to all moneys paid by EXXON, and shall indemnify
and save EXXON completely harmless against all costs, penalties, losses,
liabilities and damages which EXXON may suffer, sustain, pay or incur with
respect to Contractor's failure to make any of the payments referenced in this
Article 9.
ARTICLE 10 APPLICABLE LAW, COMPLIANCE WITH LAW, ATTORNEYS' FEES
THIS CONTRACT SHALL BE GOVERNED AND INTERPRETED ACCORDING TO THE LAWS OF THE
STATE OF TEXAS.
10.1 Contractor shall comply and secure compliance by its Subcontractors, with
all federal, state, county, parish, and municipal laws and regulations in
connection with the Services to be performed hereunder; including, but not
limited to, all safety orders prescribed by law and any rules and regulations
applicable to environmental pollution; the Fair Labor Standards Act of 1938, as
amended; and all applicable laws, orders, or regulations prohibiting
discrimination against any person by reason of race, color, religion, national
origin, sex or age. Contractor shall fully accept both State and Federal
Unemployment and Social Security Acts and pay all contribution and payroll taxes
as to all employees performing Services hereunder. Contractor shall comply with
the provisions of Article 26. Contractor shall, upon request, furnish EXXON
evidence of compliance with applicable laws, governmental orders, rules and
regulations.
10.2 Should Contractor violate any law or regulation relating to the performance
of Services, Contractor shall defend, indemnify, and hold EXXON completely
harmless from any liability or penalty which may be imposed on EXXON by reason
of any alleged violation of law or regulation by Contractor or its
Subcontractors and also from all claims, suits, or proceedings that may be
brought against EXXON arising under, growing out of, or by reason of,
Contractor's performance of Services with respect to such alleged violation of
law or regulation whether brought by employees of Contractor, by third parties,
or by national, state or local governmental authority or any political
subdivision thereof.
10.3 Should it become necessary for EXXON to engage in legal proceedings for the
purposes of resisting, adjusting and compromising any claims or demands arising
out of the subject matter
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of this Contract, or for the purposes of enforcing this Contract or recovering
damages sustained by EXXON due to breach of the Contract by Contractor, EXXON
will be entitled to reimbursement from the Contractor for costs, attorneys' fees
and any other reasonable expenses incurred in connection with such legal
proceedings.
ARTICLE 11 INSPECTIONS
11.1 Although Contractor shall provide its own representative(s) to supervise
and inspect all materials and workmanship in performance of Services hereunder,
EXXON reserves the right at any time, to inspect any part of the work and the
materials to be used in providing the Services. Exxon's rights and Contractor's
obligation with regard to deficiencies in the work or lack of conformity with
the Contract shall be as provided in Article 3.4. Neither Exxon's inspection,
waiving of inspection, review, acceptance of Contractors work nor EXXON's
payment of any invoice shall relieve Contractor of its responsibility for full
performance under the terms of the Contract, including Contractor's warranty
obligations.
ARTICLE 12 DISTRIBUTION OF RISKS BETWEEN EXXON AND CONTRACTOR
12.1 Contractor shall be responsible for and shall hold EXXON harmless for loss
of or damage, howsoever caused, to Contractor or its Subcontractors' tools and
equipment and rented items which are used or intended for use in the Services
hereunder to be performed, and for any consequential, special or indirect
damages, or loss of anticipated profits sustained by Contractor or its
Subcontractors, EVEN IF SUCH LOSS OR DAMAGE RESULTS FROM EXXON'S NEGLIGENCE.
12.2 Contractor's responsibility to compensate EXXON for loss of or damage to
EXXON's existing property which is in reasonable proximity of the Work Site or
for any resulting consequential, special or indirect damages or loss of
anticipated profits sustained by EXXON shall not exceed the amount recoverable
by Contractor or its subcontractors under the valid and collectible insurance
carried by Contractor and its subcontractors, or the amount which would have
been recoverable under such insurance if all conditions, requirements, and
warranties imposed on the insured by the insurer are being or had been met.
EXXON shall hold Contractor free and harmless from liability to EXXON for loss
or damage exceeding the amounts so recoverable. Contractor's responsibility
shall include the value of any deductible or self-insured retention applicable
under such insurance.
12.3 EXXON and Contractor ("Indemnitor') shall indemnify, defend, and hold the
other harmless from claims, demands, and causes of action asserted against the
other ("Indemnitee") by any person (including, without limitation, Contractor's
and EXXON's employees, Contractor's Subcontractors and employees of such
Subcontractors, or any other third party) for personal injury or death or for
loss of or damage to property and resulting from the Indemnitor's negligence or
willful misconduct hereunder. Where personal injury, death, or loss of or damage
to property is the result of the joint negligence or willful misconduct of EXXON
and Contractor, the Indemnitor's duty of indemnification of Indemnitee shall be
in proportion to its allocable share of such joint negligence or willful
misconduct.
ARTICLE 13 INSURANCE
13.1 During the term of this agreement Contractor agrees to carry at least the
following types of insurance:
(1) Workers Compensation Insurance in compliance with the appropriate
laws and amendments thereto of each state in which work is performed under this
contract. However, if
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Contractor qualifies under the appropriate state laws as a self-insurer of its
statutory workmen's compensation obligations, Contractor may self-insure said
obligations for purposes of this contract.
(2) Employer's Liability Insurance in an appropriate amount and not less
than $1 00,000.
(3) Comprehensive General Liability Insurance in the minimum amount of
$300,000 for injury or death for any one occurrence and with minimum property
damage of $25,000 for any one occurrence. Such insurance shall include
contractual liability, insuring the indemnity agreements contained in this
contract.
(4) Automobile Liability Insurance covering owner, now-owned, and hired
automobile equipment with minimum limits of $1 00,000 for injury or death of any
one person, and $300,000 for each occurrence and with minimum property damage of
$25,000 for any one occurrence.
Contractor further agrees to purchase the insurance in keeping with the minimum
requirements hereof from companies acceptable to EXXON, and to furnish EXXON
when requested to do so, with satisfactory evidence that such insurance is being
properly carried and with certified copies of all policies and a certificate of
insurance as to each policy. If marine insurance is required for inland water
and /or offshore operations, the insurance requirements will be set forth on
Form PL- 649, attached hereto and made a part hereof.
13.2 Nothing contained in this Article 13 - INSURANCE, shall limit or waive
Contractor's legal or contractual responsibilities to EXXON or others.
ARTICLE 14 SAFETY AND DRUG & ALCOHOL POLICIES
The following safety provisions shall apply:
(1) Contractor shall place the highest priority on safety and health while
performing work. It will be the responsibility of Contractor to provide and
maintain a safe working environment for its employees during the progress of
work and to adequately protect the health and safety of Contractor's agents and
subcontractors and their respective employees, EXXON's employees, the public,
and other third parties. All tools, equipment, facilities and other item used by
Contractor and practices employed by Contractor in accomplishing the work are
considered to be part of the working environments.
(2) EXXON has furnished Contractor with a copy of EXXON's employee health and
safety rules, receipt of which Contractor hereby acknowledges by execution of
this Contract. When performing work on EXXON's premises, Contractor shall be
required to comply with health and safety laws and regulations and to adopt
safety practices at least equivalent to those applicable to EXXON employees.
Additionally, Contractor shall adopt and enforce such other safety rules,
practices and procedures which are necessary to the safe performance of the work
which Contractor is required to perform under this Contract and which are
necessary to provide and maintain a safe working environment. Contractor agrees
that the health and safety rules which it adopts and enforces will comply with
all applicable federal, state and local safety and health laws and regulations,
including, but not limited to, standards and regulations promulgated by the
Secretary of Labor under the Occupational Safety Health Act of 1970.
(3) Contractor shall be responsible for ensuring that its employees and
subcontractors have a clear understanding of (a) the health and safety rules
which Contractor adopts for carrying out the work it is required to perform
under this Contract, (b) the known health and safety hazards of the jobs, and,
(c) all health and safety laws and regulations applicable to the work to be
done.
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(4) Before commencing work, Contractor shall inspect the work site and ascertain
whether any health or safety hazards exist. It shall be Contractor's
responsibility to review all material safety data sheets which EXXON provides
pertaining to known toxic and hazardous substances to which Contractors
employees or subcontractors are likely to be exposed while performing any
particular or individual work task required to be done under this Contract. It
shall be Contractor's sole responsibility to notify its employees and
subcontractors of all health and safety hazards to which Contractor's employees
or subcontractors will be exposed during the performance of the work required by
this Contract.
Contractor also shall provide to EXXON material safety data sheets for all toxic
and hazardous substances which Contractor brings upon or introduces to the work
site. Additionally, Contractor, as part of the performance required under this
Contract, shall provide its employees and subcontractors with any and all
personal protective equipment that is necessary for safe and healthful work
performance. Should EXXON ever be requested by Contractor to provide, and agree
to provide, assistance in obtaining any personal protective equipment, such
contract or assistance shall not be deemed to relieve Contractor of its
responsibility under this Contract to provide such protective equipment to its
employees and subcontractors that is necessary for safe and healthful work
performance and to inspect and approve such protective equipment, prior to
providing it to its employees or subcontractors.
(5) Contractor at all times after commencing work shall be responsible for
inspecting the work site to determine whether any changed conditions or specific
health and safety hazards will be encountered during the work to be done.
(6) Contractor shall not permit or tolerate a hazardous, unsafe, unhealthy, or
environmentally unsound condition or activity over which it has control to exist
or to be conducted on EXXON's property or to exist or to be conducted in the
course of performing the work to be done under this Contract. A hazardous,
unsafe, unhealthy, or environmentally unsound condition includes, but is not
limited to, a violation of the safety practices which Contractor has agreed to
adopt in paragraph (2) herein above. Contractor agrees to immediately notify
EXXON when it becomes aware of any such condition, regardless of whether
Contractor has authority to correct the condition. Notwithstanding this
provision, however, Contractor has the sole responsibility to take whatever
steps are necessary to eliminate, terminate, xxxxx, or rectify hazardous,
unsafe, unhealthy and environmentally unsound conditions which arise out of the
performance of the work required by this Contract.
(7) Contractor agrees to notify its employees that:
(1) EXXON prohibits the unauthorized sale, use, or possession of alcohol, drugs,
drug paraphernalia, weapons, firearms, explosives, and hazardous substances or
articles on EXXON property, including any property owned by or under lease to
EXXON, any property under EXXON's control and any property burdened by an
easement in EXXON's favor. Being unfit for work due to alcohol consumption is
not permitted. Only drugs prescribed in the last 12 months taken in accordance
with the prescribing physician's instructions and legal non-prescription drugs
which do not contribute to impaired or unsafe work performance are authorized
for possession or use on EXXON property; those using prescription drugs must
additionally notify their supervisors in advance of work if such use may
adversely affect job safety. Contract employees, common carrier personnel,
vendors, and others violating these guidelines will be expelled from EXXON
premises and will be denied future entry; and,
(2) Entry onto EXXON property constitutes consent to and recognition of the
right of the EXXON and its authorized representatives to search the person,
automobile, and other property of individuals entering on or departing the
premises, for alcohol, drugs, drug paraphernalia, firearms, explosives, weapons,
and hazardous substances or articles not permitted without proper authorization
upon EXXON property.
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(8) Contractor shall promptly notify EXXON, in writing, of injuries that occur
on the work site or in connection with any work being performed hereunder and
will provide EXXON with copies of all reports or other documents filed or
provided to both Contractors insurers of the relevant state of federal agency in
connection with such injury.
(9) The requirements of this paragraph 14 of the Contract are applicable to all
subcontractors hired by Contractor to perform any of the work hereunder and
Contractors Contract with any such subcontractor shall provide that
subcontractor will be subject to the requirements of this paragraph 14.
(10) Section (1) through (9) above are agreed by both EXXON and Contractor to be
of highest importance. A breach or violation of any of the terms of said
sections by Contractor will be considered to be a material and substantial
breach of this Contract. If Contractor fails to promptly take the necessary
steps to cure said breach or violation or to otherwise comply with this
paragraph 14, EXXON may take any action permitted by the terms of this Contract
or under the law including termination of Contract. Nothing contained in this
paragraph 14 shall be interpreted as enlarging the legal duty of EXXON to
Contractor or Contractors agents, employees, subcontractors, or third parties or
altering the status of Contractor as set forth in paragraph 3 (independent
contractor).
14.2. Contractor shall comply with EXXON's Drug & Alcohol Policy as set out in
Exhibit "C."
ARTICLE 15 CONFIDENTIAL INFORMATION, PATENTS, COPYRIGHTS AND
INDEMNITIES REGARDING INTELLECTUAL PROPERTY
15.1. Contractor agrees to hold in confidence all technical information
disclosed to Contractor by EXXON or developed by Contractor hereunder, except:
(A) Technical information which at the time of development by Contractor or of
disclosure by EXXON to Contractor is in the public domain; (B) Technical
information which, after development by Contractor or after disclosure by EXXON
to Contractor, becomes part of the public domain by publication or otherwise
through no fault of Contractor; or (C) Technical information which Contractor
can show was in Contractor's possession at the time of Contractor's development
hereunder or EXXON's disclosure to Contractor and was not acquired, directly or
indirectly, from EXXON.
15.2. Contractor agrees that Contractor will not, without the written permission
of EXXON, use the technical information which Contractor is required to keep
confidential under this Contract for any purpose other than the accomplishment
of Services to be performed under this Contract. Contractor understands that
EXXON accepts no obligation of confidence with respect to any information
disclosed to EXXON by Contractor under this Contract unless specifically covered
by a separate, written confidentiality agreement. In the absence of such
separate confidentiality agreement, Contractor agrees that it will not place any
restrictive notices on any document (including drawings) provided by Contractor
to EXXON under this Contract. Nevertheless, if Contractor does place such
notices on such documents, EXXON is hereby authorized to nullify, obliterate,
remove, or disregard any such restrictive clauses. EXXON shall be free to use or
disclose any or all of the information contained therein to third parties
without accounting to Contractor therefore.
15.3 Contractor shall defend and indemnify EXXON against all other such claims,
demands, and causes of action based on the actual or alleged infringement of any
such third-party right. The indemnities set forth in this paragraph 15.3 shall
include without limitation all penalties, awards, and judgments; all court and
arbitration costs; attorneys fees; and other reasonable out-of-pocket costs
incurred in connection with such claims, demands and causes of action. However,
the Contractor may not settle or compromise such claim or lawsuit without the
written consent of the indemnified party if such settlement or compromise (1)
requires the indemnified
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party to part with any right or make any payment not indemnified, or (2)
subjects the indemnified party to any injunction.
15.4 If any action results in an injunction against EXXON with respect to the
goods or facilities provided pursuant to this agreement, Contractor agrees that
it will, at its option and its sole expense, either (1) procure for EXXON the
right to continue using the infringing subject matter, or (2) replace or modify
the same so that it becomes non-infringing. ARTICLE 16 OWNERSHIP OF DRAWINGS
16.1 Contractor agrees that all reports, tracings, drawings, field notes,
specifications, computer programs in whatever form, and any other document
developed by Contractor under this Contract shall be the property of EXXON.
Contractor may retain one archival copy of each such document. Contractor shall
keep such archival copy confidential and shall not use it directly or indirectly
in providing any services to any other customer of the Contractor or for any
other purpose unless required by law. In such event, Contractor shall promptly
notify EXXON of the purpose and requirements of such use. Contractor agrees that
all such documents are works made for hire, or if they do not so qualify,
Contractor agrees to assign the copyrights in all such documents to EXXON.
16.2 All drawings, designs, and other written documents supplied by EXXON to
Contractor shall remain the property of EXXON and shall be returned to EXXON
upon completion of the Services and Contractor may not, without written approval
of EXXON, retain any copies of said documents.
ARTICLE 17 AUDIT
17.1 Contractor shall maintain and cause its Subcontractors to maintain adequate
books, payrolls, and other records satisfactory to EXXON in connection with any
and all Services performed, and retain all such books, payrolls, and records
("Records") for a period of not less than three years after completion of such
Services. Contractor's records supporting all labor, material, equipment, travel
and Subcontractor charges, and any other charges invoiced, shall be in
sufficient form to clearly document and support, and permit verification by
EXXON representatives of Contractor charges rendered to EXXON. All charges
invoiced should be identified to the specific Contract to which they relate.
Contractor shall maintain supporting documents and accounting records in
accordance with generally accepted accounting principles.
17.2 Contractor shall permit EXXON and its duly authorized representatives to
have access during the performance of Services and for a period of three (3)
years after performance of Services to the Records maintained by Contractor and
its Subcontractors and to interview Contractor's personnel relating to any of
the Services performed hereunder. EXXON and its duly authorized representatives
shall have the right to interview such personnel, audit such Records at any
reasonable time or times for purposes of auditing and verifying cost of Services
or for any other reasonable purpose with respect to this Contract upon prior
notice to Contractor. Contractor shall ensure that these rights of access extend
to any Subcontractor engaged by Contractor for Services performed hereunder.
EXXON shall have the right to reproduce any Record. Contractor will not charge
for its costs incurred in complying with this Article 17.
17.3 If an audit indicates errors in Contractors invoices, Contractor shall make
appropriate invoice adjustments or promptly refund over-payments.
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ARTICLE 18 CONFLICT OF INTEREST AND ETHICS
18.1 Contractor, in performing its obligations under Contract, shall establish
and maintain appropriate business standards, procedures and controls including
those necessary to avoid any real or apparent impropriety or adverse impact on
the interests of EXXON or its affiliates. Contractor shall review with EXXON at
reasonable frequency during performance of Services, such business standards and
procedures including, without limitation, those related to the activities of
Contractor's employees and agents in their relations with EXXON's employees,
agents and representatives, vendors, subcontractors and other third parties.
18.2 Contractor agrees that all financial settlements, xxxxxxxx, and reports
rendered to EXXON, as provided for in this agreement and/or any amendments to
it, will reflect properly the facts about all activities and transactions
handled for the account of EXXON, which data may be relied upon as being
complete and accurate in any further recordings and reportings made by EXXON,
for whatever purpose. Contractor agrees to notify EXXON promptly upon discovery
of any instance where the Contractor fails to comply with provisions of Article
18.
ARTICLE 19 SUSPENSION
19.1 EXXON may suspend at any time and for any reason any part of Services under
this Contract by specifying to Contractor the part of Services to be suspended
and the effective date of suspension. Contractor shall cease performing said
part of Services on the effective date of suspension but shall continue to
perform any unsuspended part of Services. EXXON may, at any time, authorize
resumption of the suspended part of Services by notifying Contractor of the part
of Services to be resumed and the effective date of suspension withdrawal.
Services shall be promptly resumed by Contractor after receipt of such notice.
19.2 For the part of Services suspended, compensation to Contractor during the
suspension period shall be in accordance with a written agreement, if any, which
EXXON and Contractor may determine; otherwise EXXON shall not be liable for any
costs of Contractor. EXXON's sole liability to Contractor for suspension shall
be determined in accordance with this Article and EXXON shall not be liable for
any other damages including, without limitation, loss of anticipated profit or
reimbursement for Services unperformed.
ARTICLE 20 TERMINATION
20.1 In the event EXXON or Contractor terminates this Contract as provided in
Article 4, then the following provisions shall apply: (i) If any part of or all
of Services is terminated, EXXON, with respect to such Services, shall pay
Contractor, pursuant to Exhibit "B", only for Services performed and obligations
incurred prior to the effective date of termination and for such additional
amounts directly related to Services performed by Contractor in terminating,
provided said Services were authorized in advance by EXXON; and (ii) EXXON's
sole liability to Contractor for termination shall be determined in accordance
with this Article 20 and EXXON shall not be liable for any other damages
including, without limitation, loss of anticipated profits or reimbursement for
Services unperformed.
ARTICLE 21 ASSIGNMENT
21.1 Contractor shall not, without the written approval of EXXON, assign or
sublet this Contract in whole or in part (including any sum that may accrue to
Contractor under this Contract); provided, that no such assignment or sublease,
if approved by EXXON, shall relieve
01/25/96 10
CONTRACT NUMBER: HOU-2083
Contractor of his responsibility hereunder. EXXON may assign Contract including
all its rights and obligations hereunder to its affiliates without consent of
Contractor.
ARTICLE 22 NOTICES
22.1 All notices required or permitted to be given hereunder shall be deemed to
be properly given if delivered in writing personally or deposited in the United
States mail addressed to EXXON or Contractor, as the case may be, at the
addresses set forth below, with postage thereon fully prepaid or by facsimile
to:
In the case of EXXON: In the case of Contractor:
Exxon Pipeline Company 000 Xxxx Xxxxxx IDS Technical Services
P. 0. Xxx 0000 000 Xxxxxxx Xxxxx Xxxxx, Xxxxxxxx #000
Xxxxxxx, Xxxxx 00000-0000 Xxxxxxx, Xxxxx 00000 - 6016
Attn: Contracts Group Attn: Xxxxxxx X. Xxxxxx
Phone: 713/000-0000 013/000-0000
Fax: 713/000-0000 713/821-3230
ARTICLE 23 INDEPENDENT CONTRACTOR
23.1 Contractor, in performing Services and other obligations under Contract,
shall be deemed an independent Contractor and not the agent or employee of
EXXON. While Contractor's Services hereunder shall meet with the approval of
EXXON's engineers or inspectors, EXXON is interested in the results to be
achieved under this Contract and, accordingly, the detailed manner and method of
performing Services shall be the responsibility of and under the supervision and
control of Contractor.
ARTICLE 24 FORCE MAJEURE
24.1 Neither EXXON nor Contractor shall hold the other responsible for damages
or delays in performance caused by Force Majeure or other events beyond the
control of the other party and which could not reasonably have been anticipated
or prevented. For purposes of this Contract, Force Majeure shall include, but
not necessarily be limited to: adverse weather conditions, floods, epidemics,
war, riots, strikes, lockouts and other industrial disturbances, unknown site
conditions, accidents, sabotage, fire, court orders, acts of God or acts,
orders, laws or regulations of any governmental agency.
ARTICLE 25 USE OF TRADEMARK AND PUBLICITY RELEASES
25.1 Contractor agrees that it will not make or consent to publicity releases or
announcements concerning this Contract or Contractors participation under this
Contract without EXXON's prior written consent. Contractor shall not take
photographs of the work site or any of EXXON's property without EXXON's prior
written consent. Contractor shall cause its Subcontractors to comply with this
requirement.
25.2 Contractor is not entitled, authorized or permitted to use the trademark or
trade name, or any other identifying symbol or name owned by EXXON or Exxon
Corporation or photographs of EXXON equipment, products or facilities in
advertisements, brochures, releases or similar materials without the express
prior written approval of EXXON.
01/25/96 11
ENGINEERING SERVICES CONTRACT HOU-2086
EXHIBIT "A"
TABLE OF CONTENTS
Page
A. Scope 1
B. Releases 1
C. Contractors Engineering Classifications 2
Attachment I 3
Administration of Project Design Work 3
Attachment 11 4
Project Design Work Scope Changes 4
Attachment IIA 5
FORMAT FOR CHANGE INQUIRY 5
Attachment IIB 6
FORMAT FOR CHANGE PROPOSAL 6
Attachment I[C 7
FORMAT FOR CHANGE ORDER 7
NM mm
EXXON PIPELINE COMPANY
JOB DESCRIPTION FOR
ENGINEERING SERVICES
A. SCOPE
Provide engineering services from time to time as-requested by Exxon which may
include but not be limited to providing electrical, civil and mechanical design
or other specialized engineering and related work, project material cost
estimates, design criteria preparation, computations, analysis, calculations,
P&ID drawings, detailed construction drawings, fully documented software
programs, OTCC operating instructions, stations operating instructions, and
project start-up assistance. Contractor shall provide Professional Engineering
Certification for all work product submitted to Exxon. The administration of
project design work is more fully described in the following attachments:
Attachment I Administration of Project Design Work
Attachment 11 Project Design Work Scope Changes
Attachment IIA Format for Change Inquiry
Attachment IIB Format for Change Proposal
Attachment IIC Format for Change Order
This contract shall not require exclusivity of business dealings by either party
and shall not commit EXXON to contract a stated volume of services during the
term of the contract.
B. RELEASES
Release Orders under this Contract shall be made by an EXXON Representative
either in verbal or written form, however, all Release Orders expected to exceed
$10,000 must be in writing.
Each Release Order will provide:
1. This Contract Number and a Release Order number to be referenced by
Contractor when invoicing or communicating with EXXON.
2. The description, location and schedule of work to be performed.
3. The contract price basis such as a) lump sum; or b) time and materials. (For
the majority of releases Contractor shall be compensated on a Unit Rate or Time
and Material basis in accordance with the Rate Schedules of this Contract,
however, EXXON reserves the right to request lump sum quotes for specific work
tasks.)
C. CONTRACTOR'S ENGINEERING CLASSIFICATIONS
Contractor shall ensure that the classifications listed below meet the minimum
experience and professional qualifications shown.
PROJECT ENGINEER (possesses engineering degree and has approximately 15 years
relative experience)
o Directs the consultants input in major projects
o Ensure all work has appropriate review/approval
o Prepares and monitors project budget/schedule
o Provides written project status reports and other communications with EPC
o Monitors/controls consultants costs
SR. ENGINEER (possesses engineering degree and approximately 10 years of
relative experience)
o Provides complete design package for projects
o Develops cost and schedules data
o Provides detail design/specifications/work procedures
o Prepare bills of materials and requisitions.
o Assist field personnel as needed with construction and start up activities
o Electrical design includes PLC programs and SCADA hub systems
ENGINEER (possesses engineering degree and approximately 5 years of relative
experience)
o Does detail design including xxxx of materials and specifications
o Provides input on cost/schedule/design alternates/work procedures
o Gathers relative data on existing systems/procedures
o Assists field personnel as needed.
o Electrical design includes PLC programs and SCADA hub systems
DESIGN TECHNICIAN (Has at least 10 years of relative experience)
o Assist Engineers with design details, specifications and material
requisitions
o Develops CAD drawings for pipeline facilities including upgrading of
existing drawings
ASSOCIATE DESIGN TECHNICIAN (Has at least 5 years of relative experience)
o Assist Engineers with design details, specifications and material
requisitions
o Develops CAD drawings for pipeline facilities including upgrading of
existing drawings
CAD OPERATOR/DRAFTSMAN
Does CAD/manual drawings of project facilities designed by others
2
ATTACHMENT I
ADMINISTRATION OF PROJECT DESIGN WORK
The following detailed requirements and procedures shall govern the
administration and monitoring of assigned project design work:
1 . All work assigned to Contractor will be outlined either verbally or in
writing at the onset. Generally, the project work will be outlined in the form
of a written design criteria, from which, the Contractor shall prepare and
submit to Exxon a Work Proposal consisting of an estimate of total hours
required to complete the outlined work and a target completion date. If
requested by the Design Coordinator, the Contractor shall prepare and submit to
Exxon (as part of the Work Proposal) a Target Schedule for the assigned work.
The Target Schedule shall include without limitation, the following detail:
(a) The Target Schedule shall be in the form of a bar graph showing all
major design categories.
(b) The Target Schedule shall address the logical sequence of all
activities.
(c) Start and completion dates for all major activities (Milestones)
shall be clearly shown as well as an estimate of hours for each activity.
2. The Contractor will submit weekly, an updated Target Schedule, or as
requested by the Design Coordinator. The updated schedule will contain the
originally proposed schedule as well as the actual elapsed time. The causes
for any changes in the original Target Schedule shall be documented and
submitted with the updated schedule.
3. The Contractor will include enough information in the Target Schedule and
progress report so that they can be used readily as a basis for measuring
the progress of the work.
4. If the Contractor discovers an error or a need to change the estimate of
hours, the Contractor shall notify Exxon promptly. If the error or change
exceeds ten per cent (10%) of the original total estimate of hours, the
Contractor will stop working on the project until Exxon approves the new
estimate.
5. Work assignments that are outlined verbally to the Contractor will require
Work Proposal submitted to Exxon, that contain estimates of total hours and
a completion dates. When submitting the Work Proposal, it is the
Contractor's responsibility to understand the scope of the work involved
and to convey it to Exxon within the contents of the proposal, so that
Exxon can approve the proposal and both parties are assured of a mutual
understanding of the assigned work.
ATTACHMENT 11
PROJECT DESIGN WORK SCOPE CHANGES
The following detailed requirements and procedures shall govern changes to
assigned project design work if requested by Exxon or the Contractor:
1. Exxon or the Contractor may initiate consideration of a possible change in
the assigned work BY issuing a document to be referred to as a "Change
Inquiry", generally in the format of Attachment IIA. In response, the
Contractor shall promptly prepare and issue to Exxon a document to be
referred to as a "Change Proposal". The Change Proposal shall propose
reasonable adjustments to the Work Proposal as previously outlined in
Attachment 1.
2. The Change Proposal shall be generally in the format shown in Attachment
IIB to this section and shall be numbered to match corresponding Change
Inquiries.
3. The Change Proposal shall specify whether the estimated hours will be
adjusted upward or downward because of the change.
4. Within a reasonable time after receipt of the Change Proposal, Exxon shall
respond to it. Exxon shall not be obliged to accept any Change Proposal,
but may do so, or may negotiate further with the Contractor on the change
in question. If Exxon decides to proceed with a change, it may direct the
Contractor to make the change by issuing a Change Order. Change Orders
shall be signed by EXXON's project manager, or his designee. If the Change
Order sets forth matters specifically agreed to by the Contractor, then
both project managers, or their designees, should sign the Change Order.
5. The Change Order shall be numbered to match corresponding Change Inquiries
and Change Proposals and shall be generally in the format shown in
Attachment IIC of this section.
6. Change Inquiries, Change Proposals, and Change Orders shall be distributed
to EXXON's and Contractors respective project managers. For convenience,
the parties may choose to issue corresponding Change Inquiries, Change
Proposals, and Change Orders as a unified document.
ATTACHMENT IIA
FORMAT FOR CHANGE INQUIRY
(Contractor Name and Address)
ATTENTION: (CONTRACTOR'S PROJECT MANAGER)
SUBJECT: CHANGE INQUIRY NO. _____ FOR AFE NO. _____
We request your proposal for performing the following change to AFE No.
DESCRIPTION OF CHANGE: (Describe briefly)
PORTION OF SPECIFICATION AFFECTED:(State reference to drawings or other affected
parts of the Specification)
REASON FOR CHANGE:(Safety, operability, maintainability, economy, design
development, etc.)
INITIATOR OF CHANGE:(Contractor, Exxon)
ADDITIONAL ESTIMATED HOURS: Add or subtract the estimated number of additional
hours to the original Estimated Hours. Specifically state the original estimate,
the change, and the total new estimate.
INFORMATION REQUESTED: (Select one or more items below and delete others)
o An estimate of the effect on the Contract Price.
o An estimate of the effect, if any, on the Target Schedule and the Scheduled
Completion Date, with appropriate backup, or, if no effect, the latest date
on which the change must be ordered so as not to have any effect.
o A statement of the effect, if any, of the change on Contractor's warranty.
Please provide a proposal for accomplishing this change as described. Upon
receipt of your fully documented proposal, Exxon will consider whether to
proceed with the change. Until that authorization is received, you shall take no
action to implement the change other than those actions requested herein.
5
ATTACHMENT IIB
FORMAT FOR CHANGE PROPOSAL
Exxon (Date)
ATTENTION:(Exxon's Project Manager)
SUBJECT: CHANGE PROPOSAL NO._________ FOR AFE NO._____
The following Change Proposal to AFE No.___________ is hereby
presented in accordance with your Change Inquiry No._____________
dated _____________
OR
The following Change Proposal is hereby presented for your consideration:
DESCRIPTION OF CHANGE: (Brief description)
PORTION OF SPECIFICATION AFFECTED: (Reference to drawings or other parts of the
Specification)
REASON FOR CHANGE: (Safety, operability, maintainability, economy, design
development, etc.)
INITIATOR OF CHANGE: (Contractor/Exxon)
EFFECT ON ESTIMATED HOURS: (Backup material such as quantities and rates should
also be provided as an attachment)
PERIOD OF TIME FOR WHICH THIS ESTIMATE WILL BE VALID:
EFFECT ON TARGET SCHEDULE AND SCHEDULED COMPLETION DATE:
EFFECT ON CONTRACTOR'S WARRANTY.
REFERENCES:(Include reference to any correspondence, interim authorizations,
etc.)
6
ATTACHMENT IIC
FORMAT FOR CHANGE ORDER
Contractor's Name and Address (Date)
ATTENTION: (contractor's Project Manager)
SUBJECT: CHANGE ORDER NO._________ FOR AFE NO._______
The following change to AFE______________ is hereby directed in
accordance with Change Proposal No._________ dated
______________.
DESCRIPTION OF CHANGE:
PORTION OF SPECIFICATION AFFECTED: (Reference to drawings or other parts of the
Specification)
REASON FOR CHANGE: (Safety, operability, maintainability, economy, design
development, etc.)
INITIATOR OF CHANGE: (Contractor, Exxon)
EFFECT ON ESTIMATED HOURS:
EFFECT ON TARGET SCHEDULE AND SCHEDULED COMPLETION DATE:
EFFECT ON CONTRACTOR'S WARRANTY:
REFERENCES; (include reference to any correspondence, interim authorizations,
etc.)
ACKNOWLEDGED:
----------------------- --------------------
Contractors Project Manager Exxon's Project Manager
7
CONTRACT NUMBER HOU - 2083
EXHIBIT "B"
EXXON PIPELINE COMPANY (EXXON)
ENGINEERING SERVICES
BID SHEET
Exxon Pipeline Company
000 Xxxx Xxxxxx, Xxxx 000
Xxxxxxx, Xxxxx 00000
Attention: X. X. Xxxxxxxx:
As full compensation for Contractor's performance for each Release Order to be
issued by EXXON pursuant to this CONTRACT, EXXON shall pay Contractor either: 1)
A lump sum amount agreed to by the parties for a specific work task and written
into the specific Release Order; or 2) A reimbursement in accordance with the
Rate Schedule below.
1.0 LABOR RATES:
Contractor shall attach its Rate Schedule listing the labor classifications
typically provided by Contractor covering engineering services and the
respective billing charges for same.
1.1 Certain classifications, as described in Job- Description of the CONTRACT,
shall be charged as follows:
Project
Overtime Minimum Construction
Hourly Rate Multiplier Callout Hours Daily Rate
----------- ---------- ----------- ----------
Project Engineer . 60.00 1.0 1 $ 540
----------- ---------- ----------- ----------
Sr. Engineer ..... 55.00 1.0 1 495
----------- ---------- ----------- ----------
Engineer ......... 45.00 1.0 1 405
----------- ---------- ----------- ----------
Design Technician 42.00 1.0 1 380
----------- ---------- ----------- ----------
Asst. Design Tech 37.50 1.0 1 340
----------- ---------- ----------- ----------
CAD Operator/
Draftsman ..... 30.00 1.0 1 270
----------- ---------- ----------- ----------
Engineering Clerk 22.50 1.0 1 205
----------- ---------- ----------- ----------
Secretary ........ 18.00 1.0 1 165
----------- ---------- ----------- ----------
* Daily Rate may be used when assignments of individuals exceed one week at,
but not limited to, a project construction location.
CONTRACT NUMBER HOU - 2083
EXHIBIT "B"
1.2 Overtime Definition:
Contractor's definition of overtime is as follows:
NOT APPLICABLE
OVERTIME SHALL. BE CHARGED ONLY WHEN APPROVED IN ADVANCE BY EXXON.
All charges shall commence subsequent to an approved Release Order and
Contractor shall be paid for actual work completed.
2.0 REIMBURSABLE EXPENSES
Reimbursable expenses shall be allowed in accordance with provision 5.2 of the
CONTRACT.
Contractor should list below the list of expense items for which it typically
seeks reimbursement:
1. BUSINESS TRAVEL AND LIVING EXPENSES
3.0 EQUIPMENT, INSTRUMENTS AND TOOLS
Contractor shall attach its Rate Schedule listing the different equipment,
instruments and tools owned and typically used by Contractor in providing
services described in the CONTRACT and the itemized billing rates for same.
Contractor's charge for rented equipment, instruments and tools is cost plus
0 %.
4.0 VEHICLE USE CHARGES AND MILEAGE
Vehicle Use and Mileage rates are as follows:
Describe Vehicle Hourly Rate Daily Rate Mileage
PERSONAL VEHICLES $0.30
CONTRACT NUMBER HOU-2083
EXHIBIT "B"
5.0 SUBCONTRACTED WORK
Subcontracted work at cost plus 5%
Contractor should list below any work that is typically subcontracted:
SURVEYING
TESTING SERVICES
Contractor shall not subcontract work without advance approval from
EXXON.
6.0 CONTRACTOR IS LICENSED TO PERFORM ENGINEERING WORK IN THE STATES LISTED
BELOW AND MEETS THE ENGINEERING SEALING REQUIREMENTS OF THE STATE:
TEXAS WASHINGTON LOUISIANA (APPLIED FOR)
PENNSYLVANIA OREGON WEST VIRGINIA (APPLIED FOR)
OHIO IDAHO
CALIFORNIA
6.1 CONTRACTOR HAS OFFICES IN THE FOLLOWING CITIES:
HOUSTON, TX
CLARKSBURG, WV
Submitted by:
IDS Technical Services,
A Division of
Industrial Data Systems, Inc 000 Xxxxxxx Xxxxx Xx. Xxxx 000
---------------------------- ------------------------------
COMPANY XXXXXX XXXXXXX XX X.X. XXX
\X\ XXXXXXX, XX 00000-0000
---------------------------- -----------------------------
SIGNATURE CITY, STATE, AND ZIP
Xxxxxxx X. Xxxxxx, P. E.
President
----------------------------
TITLE
9/5/95
----------------------------
DATE
CONTRACT NUMBER HOU - 2083
EXHIBIT "C"
Ref: LR
CONTRACTOR DRUG AND ALCOHOL REQUIREMENTS
1 Contractor, contractors employees, agents, subcontractors and the employees
and agents of subcontractors ("Contractor's Group") shall not perform any
service for Exxon while under the influence of alcohol or any controlled
substance. Contractor's Group shall not use, possess, distribute or sell
alcoholic beverages, illicit or unprescribed drugs or drug paraphernalia,
or misuse legitimate prescription drugs on any property in which Exxon owns
an interest, at the job site or while performing work for Exxon.
2. Contractor has adopted, or will adopt prior to performing work under this
contract, its own policy to assure a drug and alcohol free work place while
performing work for Exxon.
3. Exxon shall be entitled to remove, and Contractor shall be obligated to
remove, any member of Contractor's Group from performing work for Exxon any
time that (i) either Contractor or Exxon suspects such person may have
used, possessed or been impaired by alcohol or drugs on any property in
which Exxon owns an interest, at the job site or while performing work for
Exxon or (ii) an incident occurs where drug or alcohol use by such person
could have been a contributing factor. In such cases, such person may only
be considered for return to performing work for Exxon if Contractor
certifies as a result of a for-cause test, conducted immediately following
removal, that said person was in compliance with this contract at that
time. Contractor shall not use an employee to perform services for Exxon
who either refuses to take, or tests positive in, any alcohol or drug test.
4. Exxon may, without prior notice, search the person, possessions, and
vehicles of Contractor's Group located on premises owned or controlled by
Exxon. Any person who refuses to cooperate with such search will be removed
from the premises and not allowed to return.
5. Contractor shall comply with all applicable federal, state, and local drug
and alcohol related laws and regulations. Exxon shall be entitled to
terminate this contract without prior notice at any time that Contractor is
found to have violated any of such laws or regulations or any of the drug
and alcohol abuse requirements contained herein.
RMS
1/18/93
Ref: LR
1 Of7/93
01/25/96
mm
