EXHIBIT 10.7 Contract No. CON96495
CONSULTING, DESIGN AND INSPECTION AGREEMENT
THIS AGREEMENT, made and executed this 12TH day of MARCH , 1996, between
Marathon Oil Company, an Ohio corporation, of 000 Xxxxx Xxxx Xxxxxx, Xxxxxxx,
Xxxx, hereinafter called "Marathon" and IDS TECHNICAL SERVICES hereinafter
called "Consultant";
W I T N E S S E T H
The purpose of this Agreement is to state the terms under which
Consultant will be providing consulting, engineering design, inspection,
testing, surveying or other services to Marathon. In consideration for the
services to be rendered by Consultant and in consideration of the funds Marathon
will pay Consultant for such services (it being understood that if Consultant
does not assess a charge for a given job or a portion of the work, consideration
for that job will be funds paid for the balance of the work), the parties agree
as follows:
1. SCOPE OF WORK
Unless in good faith he is unable to do so, Consultant shall perform
hereunder upon oral or written order of Marathon. The work to be performed shall
be described in the order. Marathon is not hereby obligated to order any minimum
amount of services from Consultant.
2. TERM
The term of this Agreement shall be for a period of one (1) year
commencing the date indicated above and shall continue thereafter from month to
month until terminated by either party giving not less than thirty (30) days
prior written notice.
3. PAYMENTS
Unless agreed otherwise in a written work order, Marathon shall pay for
all services performed to Marathon's satisfaction at the rates specified in the
Consultant's cost schedule attached hereto. Upon written notice to Marathon,
Consultant may change the rates specified in the cost schedule, except as such
rates apply to work in progress. If services are rendered other than those shown
on the Consultant's cost schedule, the rate shall be as agreed upon by the
parties prior to the performance of the work, or in the absence of such an
agreement, the prevailing rate in the same or similar locality.
4. TERMS OF PAYMENT
Marathon shall be invoiced for services rendered only after they have
been completed and accepted by Marathon. Consultant agrees to invoice Marathon
in triplicate for all services performed, including but not limited to itemizing
in detail material and labor, showing quantity, price, number of hours, truck
mileage rate, and labor rate, if applicable. Payment shall be due thirty (30)
days after receipt of invoice and may be made by Marathon's check.
5. INDEPENDENT CONTRACTOR
In the performance of all work under this Agreement, Consultant is an
Independent Contractor, with the sole right to supervise, manage, control, and
direct the performance of all details. Marathon is interested only in the
results to be obtained, but the work must meet with the approval of Marathon,
whose representatives shall be entitled to make any such inspections as may be
necessary to assure such results.
OIL
6. EMPLOYEE BENEFITS
It is intended by the parties that any personnel supplied to Marathon
pursuant to this Agreement shall not be considered to be employees of Marathon
and shall remain solely the employees of the Consultant or its approved
subcontractors, if any. Consultant agrees to be solely responsible for the
maintenance and operation of all the employee benefit plans it maintains with
respect to personnel supplied to Marathon under this Agreement and shall be
solely responsible for any and all obligations and liabilities arising under
such employee benefit plans. Consultant agrees to indemnify and hold Marathon
harmless from any and all claims for employee benefits of any type which may be
made against Marathon by personnel (including their heirs and assigns) supplied
to Marathon by the Consultant or its approved subcontractors, if any pursuant to
this Agreement, including any and all attorneys' fees and other costs of any
kind incurred by Marathon in connection with such claims.
7. FEDERAL AND STATE TAXES
Consultant agrees to accept full and exclusive liability for and will
indemnify Marathon against the payment of any and all contributions,
assessments, rates, and taxes, of whatever kind or nature, which might be
imposed or attempted to be imposed upon Marathon pertaining to the compensation
paid or to be paid in connection with the services rendered to Marathon by
personnel supplied under this Agreement, including, but not limited to, federal,
state, county, city or otherwise, income, unemployment (FUTA) and social
security (FICA) taxes.
8. SUPERINTENDENCE
Consultant shall maintain at the site a competent xxxxxxx in complete
charge of work at all times while engaged in site work on Marathon premises.
9. WORK AREA
When proceeding with site work on Marathon premises, Consultant shall
provide and maintain a guard fence, lights, and other safety measures that may
be required for the protection of the general public.
It shall be the Consultant's responsibility to supply weatherproof
protection when necessary for any facilities Consultant may expose while
performing services hereunder and for any electrical or mechanical equipment
which must be stored for use in providing services. Any damage caused by failure
of the Consultant to protect said facilities and equipment shall be paid for by
the Consultant.
10. JOB SAFETY AND HEALTH
If Consultant is required to perform site work on Marathon premises as indicated
in Consultant's work order, Consultant shall comply with Marathon's safety
policies then and there in effect. Consultant agrees to properly inform, educate
and train all employees performing work hereunder as to all applicable safety
and health laws and regulations including, but not limited to the Hazard
Communication Standard, 29 CFR, Part 1910.1200, issued by the Occupational
Safety and Health Administration, U.S. Department of Labor. Consultant agrees to
take the necessary steps to become familiar with all chemicals and substances to
which its employees foreseeably could be exposed while performing work on
Marathon's premises. Consultant further agrees to educate and train its
employees as to the chemicals and substances to which they foreseeably could be
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exposed in accordance with the requirements set forth in the Hazard
Communication Standard, 29 CFR Part 1910.1200(h) prior to the commencement of
any work hereunder. Material Safety Data Sheets for Marathon products which may
be encountered by Consultant at the work site are available for inspection from
the Marathon representative.
Consultant also agrees to take the necessary steps to ensure that its
subcontractors, if any, comply with Marathon's contractor safety policies, and
all Federal and State job safety and health regulations, including, but not
limited to, the Hazard Communication Standard, 29 CFR Part 1910.1200.
Consultant agrees to indemnify and hold Marathon harmless from any and
all citations or complaints which may be assessed against Marathon by any and
all federal, state or other job safety and health enforcement agencies for
personnel supplied hereunder based upon any and all alleged unsafe or unhealthy
working conditions created or caused by the Consultant or its approved
subcontractors including holding Marathon harmless from any and all attorneys'
fees and other costs of any kind incurred by Marathon in connection with said
citations or complaints.
11. WORKERS COMPENSATION INDEMNIFICATION
Consultant agrees to be responsible for the workers' compensation
insurance on personnel supplied under this Agreement. If any direct claim for
workers' compensation benefits or awards is asserted against Marathon by any of
said personnel or, in the event of death, by their personal representatives,
then Consultant shall indemnify and hold Marathon harmless from and against such
claim(s) to the extent of all benefits and awards, cost of litigation,
disbursements and reasonable attorneys' fees Marathon may incur in connection
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therewith. At Marathon's option, and upon written notice, Consultant will
undertake to defend Marathon against such claim(s).
12. GENERAL INDEMNIFICATION
A. Consultant shall protect, defend, indemnify and hold Marathon
and the employees of Marathon harmless from and against any and
all claims, demands, causes of action of every kind and
character including, without limitation by enumeration, death,
injury and damages to all persons and property (including
employees or property of Marathon), together with the amount of
judgments, penalties, interest, court costs, legal and other
fees and expenses in connection therewith (hereinafter
collectively referred to as "Claims"), directly or indirectly
arising out of, resulting from, incident to, or in connection
with, this Agreement or the performance of work hereunder or
breach of the terms hereof, EXCEPT, but only to the extent that,
such claims are found to have been proximately caused by the
negligent act or omission of Marathon, its agents, servants or
employees.
B. Consultant's obligation to defend, indemnify and hold Marathon
harmless against liability as provided for in subparagraph 12A
above specifically includes, without limitation, liability
based, in whole or in part, upon theories of strict liability,
intentional tort or negligence of Consultant and its agents,
servants and employees, or Consultant's subcontractors or
licensees and their agents, servants and employees. Consultant's
obligation, as aforesaid, is not diminished or affected in any
way by a claim that Marathon is jointly or severally liable
therefor. Nothing in this subparagraph 12B shall be construed to
increase the obligations of Consultant as set forth in
Subparagraph 12A above.
C. Without limiting the generality of the foregoing requirements,
Consultant agrees that in the performance of his obligations
hereunder, he will observe any and all local, state, and federal
safety, health, and environmental regulations which may be
applicable; and contractor further agrees to save Marathon
harmless from any losses, damages, claims, or demands of
whatever nature which might arise as a result of Consultant's
failure to observe any applicable safety, health, and
environmental regulations.
D. Marathon reserves the right, in the event it so elects, to
participate at its own expense in the defense of any suit
covered by this provision, however, such participation shall not
excuse Consultant of any obligation hereunder.
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13. INSURANCE
Without limiting in any way the scope of any obligations and/or
liabilities assumed hereunder by Consultant, Consultant shall purchase from
reputable insurance companies and maintain, at all times while conducting
operations under this Agreement, the following minimum insurances to protect
Consultant from claims which may arise out of or result from the Consultant's
operations under this Agreement.
A. WORKER'S COMPENSATION
(i) Worker's Compensation in compliance with the laws of any
applicable state.
(ii) Employer's Liability with a limit of at least $500,000 per
accident.
B. PUBLIC LIABILITY to cover liability for bodily injury, including death,
and property damage with a combined single limit of at least $500,000
per occurrence. This coverage shall include:
(i) Contractual Liability to cover any assumed liability for damages
because of bodily injury or property damage to third parties
arising out of the performance of this Agreement.
(ii) Independent Contractors to cover work assigned or subcontracted.
(iii) Completed Operations.
Explosion Hazard, Collapse Hazard and Underground Property
Damage.
C. PROFESSIONAL LIABILITY if applicable, to cover liability for damages
resulting from professional services rendered under this Agreement with
a combined single limit of at least $500,000 per occurrence and
$1,000,000 aggregate.
D. BUSINESS AUTOMOBILE LIABILITY including Contractual Liability to cover
owned, non-owned, and hired automotive equipment with a combined single
limit of at least $500,000 each accident.
GENERAL PROVISIONS
i. Insurance mentioned in items B & C above shall be endorsed
whereby Marathon shall be named as an additional insured under'
the liability policies to the extent of the liability assumed by
Consultant hereunder.
ii. Insurance mentioned in item "A" shall be endorsed to provide a
waiver of subrogation in favor of Marathon.
iii. BEFORE PERFORMING ANY work hereunder, Consultant shall furnish
certificates (Xxxxx Form 25 or 25-S) to Marathon evidencing the
insurances required above and containing the unequivocal
agreement on the part of the insurer to notify Marathon of the
cancellation, non-renewal, or any material changes in said
insurances at least thirty (30) days prior to such cancellation
or change.
F. DEDUCTIBLES
Consultant shall bear the cost of the deductibles of insurance policies
Consultant has procured.
14. DRUG AND ALCOHOL POLICY
Consultant agrees to notify its employees, subcontractors, agents and
representatives of Marathon's Drug and Alcohol Policy. The Policy prohibits
Consultant's employees, subcontractors, agents, and representatives from:
A. using, possessing, distributing, purchasing or selling drugs or
alcohol (except with proper authorization) while on Marathon
premises or while engaged in Marathon business;
B. reporting to and/or performing work for Marathon with
unauthorized drugs or alcohol in excess of the Policy limit
(.04% B.A.C.) in their body; or
C. refusing to submit to routine searches of their person, their
personal property, and Marathon or Consultant-assigned property,
while entering on or leaving Marathon premises.
In addition, Consultant certifies that all of its employees,
subcontractors, agents and representatives who may perform work covered by this
Contract are subject to Laboratory Testing Provisions which are substantially
equal to Marathon's Policy in all respects (a summary of Marathon's Laboratory
Testing Requirements is attached
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hereto). Consultant agrees to permit Marathon, or its authorized representative,
access to Consultant's property and records, without prior notification, for the
purposes of examining/auditing Consultant's policies, practices and procedures
pertaining to this requirement. Any deficiencies, as determined by Marathon, can
result in Consultant being removed from the work and/or being required to
implement specified modifications prior to proceeding with work.
Consultant agrees to remove and replace, for the purposes of fulfilling
its obligations to Marathon under this Contract, any of its employees,
subcontractors, agents and representatives found to be in violation of its own
anti-drug plan and/or Marathon's Drug and Alcohol Policy, or those that Marathon
believes to be in violation of the Drug and Alcohol Policy whose compliance with
the Policy cannot be certified to by the Consultant based upon laboratory
testing acceptable to Marathon.
15. MATERIALS, APPLIANCES, EMPLOYEES
Unless otherwise stipulated, the Consultant shall provide and pay for
all materials, labor, water, tools, equipment, temporary light, temporary heat,
transportation, and other facilities necessary for the rendering of services
hereunder. Workmanship and materials shall be of good quality.
16. FAULTY MATERIALS AND/OR WORKMANSHIP
Consultant shall promptly revise all work product Marathon has deemed
unacceptable under this Agreement or any Marathon work order, and in such
instances Consultant shall promptly re-execute his own work in accordance with
this Agreement without expense to Marathon.
17. CARE OF PREMISES
Consultant shall at all times keep the premises free from accumulations
of waste material or rubbish caused by his employees or work; and at the
completion of work, he shall remove all his rubbish, tools, scaffolding,
toolboxes, surplus materials (not purchased by Marathon), and temporary sheds
and structures of all kinds from the premises, leaving the work "broom clean" or
its equivalent.
18. USE OF VEHICLES
Consultant shall comply with parking regulations established by
Marathon's Facility Manager. In no event shall Consultant's vehicles be parked
so as to prevent ingress or egress into and from operating areas.
19. PAYMENT DEDUCTIONS
Marathon shall be entitled to deduct, from any sum or sums owing to
Consultant hereunder, any amounts owed by Consultant to Marathon, and amounts
due or to become due Marathon arising out of indemnification, if applicable, and
to withhold from sums due Consultant hereunder any amount necessary to protect
Marathon against Consultant's failure to pay indebtedness outstanding against
the services performed hereunder and against any loss or damage by reason of any
default of Consultant.
In the event that Marathon disputes any item on a particular invoice,
Marathon shall be entitled to withhold from payment, without payment of
interest, the amount in dispute, until such time as Marathon is satisfied as to
the disputed item.
20. SMOKING PRECAUTIONS
Smoking will not be permitted inside the fence of Marathon's facility
except in areas specifically designated for smoking by the Facility Manager.
21. FACILITY OPERATION
Before starting work, Consultant shall contact the Facility Manager.
Unless advised to the contrary, Marathon's facility must be kept in full
operations during the performance of services. The Consultant shall schedule his
work so as not to unduly interfere with such operations. After hours work and
weekend work must be coordinated with and approved by the Facility Manager.
22. EXCAVATION
To the best of Marathon's knowledge, all underground facilities in the
construction area have been shown on drawings or other information provided by
Marathon, if any. However, this information is not to be construed as complete.
It is the responsibility of the Consultant to use its best efforts to locate
underground facilities including, but not limited to, cathodic protection
systems, product piping, and electrical conduits before digging. The Consultant
shall then be responsible for the protection of these facilities from any damage
as a result of his operations and is financially liable for their repair.
However, Consultant shall not be held responsible for damage to
underground facilities which are located and shown incorrectly on drawings
provided by Marathon, if Consultant relies on such information and is unable to
locate such facilities by its own efforts, and if Consultant has exercised
reasonable care to avoid damaging such unidentified facilities.
Prior to excavation in any area not owned by Marathon (e.g. public
right-of-way, street, highway, etc.), Consultant shall inquire at state, local
or municipal agencies and the offices of any utilities or utilities protection
service, concerning location of underground facilities.
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23. CATHODIC PROTECTION SYSTEM--ELECTRICAL BONDING
Marathon has installed cathodic protection systems at its facilities for
the purpose of protecting the facility's tanks and piping systems from
corrosion. In the event cables are exposed or damaged, Marathon's Representative
shall be notified immediately and they will inspect the cable to determine the
extent of the damage. All exposed cables will be inspected for nicks, cuts, or
other minor damage. Damaged cables will be left exposed and qualified corrosion
personnel will be notified to repair the damage. The Consultant shall comply
with the procedures as listed herewith below.
A. Prior to excavation, the location of direct burial cables, test
leads, bond cables, etc., shall be determined by consulting with
the Marathon Representative and referring to the facility's
Cathodic Protection Drawings.
B. Prior to excavation, the cables shall be located and marked in
the field by Marathon's Representative.
C. Rectifiers should be turned "OFF" by Marathon's Representative
prior to excavation near the cathodic protection facilities or
when any portion of the facility's structures (piping, fittings,
conduits, or metallic conductors) are to be separated or
removed. Consultant shall notify the Marathon Representative
when a system will be out of service for any extended period.
D. Excavations across cables shall be by hand. (Cathodic protection
systems installed after 1977 all have direct burial cables
marked with plastic ribbon approximately 4 inches to 6 inches
below grade).
24. RESPONSIBILITIES OF MARATHON
Marathon will assist Consultant by providing information pertinent to
the site of the project such as records, maps, data and other material to which
Marathon has access and which Consultant has need of for the performance of the
services provided for herein.
Marathon will designate a representative or representatives who will be
authorized to make necessary decisions required on behalf of Marathon in
connection with the execution of this Agreement and who will serve as liaison to
Consultant and will serve to provide the necessary direction and coordination
for this project.
25. RIGHT OF REVIEW
Marathon shall, without limit, have final right of review and approval
of all reports and/or drawings prepared by Consultant, however, review and
approval shall not be unreasonably withheld. Once approved, Consultant shall
seal all drawings as specified in the work order.
26. OWNERSHIP OF MATERIALS
It is agreed that upon receipt of final payment, all final documents,
studies, surveys, drawings, maps, models, photographs and reports prepared by
Consultant under this Agreement shall be considered the property of Marathon.
Upon completion of the service as specified in this Agreement, and upon request
of Marathon, those items which it requires shall be turned over to it, provided
that in any case the Consultant may, at no additional expense to Marathon, make
and retain such copies thereof as Consultant desires. In the event Marathon
should use these documents for another project in a manner that does not relate
to the fitness of purpose of the documents, Marathon agrees to indemnify and
hold harmless the Consultant from any claim or legal action arising out of
liability from the improper use of said documents at a different site or
project, unless the Consultant is involved with such site or project.
27. COMPLETION TIME
Time is of the essence. Completion time will be the number of calendar
days intervening between the date work is commenced and the completion date
specified in
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a work order under this Agreement. A work project shall be considered completed
when all services are performed and accepted by Marathon. The time stipulated
for completion anticipates a margin for reasonable delays. Any claim by the
Consultant for extension of the performance period for reason of unusual
conditions or conditions beyond the Consultant's control must be made in writing
to Marathon's Representative at the time the event occurred. In his claim, the
Consultant shall describe the condition or event causing the delay and shall
state the extension of time he is requesting. The above claim procedure is the
sole method by which the completion date hereunder may be extended.
28. CHANGES
Marathon or Consultant may, from time to time, during the course of this
Agreement, request modifications of it or changes in the Scope of Work to be
performed hereunder. Such changes, including any increase or decrease in the
amount of Consultant's compensation, which are mutually agreed upon by and
between Marathon and Consultant, shall be incorporated in written amendments to
this Agreement.
29. RIGHT TO TERMINATE
Marathon may, at any time, in its sole discretion, upon written notice
to Consultant, terminate the work provided for hereunder, in which event,
Consultant shall be reimbursed for actual costs incurred to the date of such
notice of termination, at the rates specified in the cost or fee schedules.
However, in no event shall such reimbursement include compensation for work
unperformed. In the event of such termination, all finished or unfinished
documents, data, studies, surveys, drawings, maps, models, photographs, and
reports prepared by Consultant shall, at the option of Marathon, become property
of Marathon.
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30. FORCE MAJEURE
Any delay in or failure of performance of either Marathon or Consultant
shall not constitute default hereunder or give rise to any claims for damage if
and to the extent such delay or failure of performance is caused by occurrences
beyond the control of the party affected including, but not limited to, acts of
God or the public enemy; expropriation or confiscation of facility; compliance
with any order or request of any governmental authority; acts of war, rebellion
or sabotage or damage resulting therefrom; fires, floods, explosion, accidents;
riots; or any causes whether or not of the same class or kind as those
specifically above named which are not within the control of the party affected,
and which by the exercise of reasonable diligence, said party is unable to
prevent or provide against; and provided, further, that prompt notice is made in
writing to the other party, giving the cause of any such delay or failure to
perform at the time the event occurs.
31. CONFLICT OF INTEREST
Consultant covenants that he presently has no interest and shall not
acquire any interest which would conflict with the performance of the services
required under this Agreement.
32. GUARANTEE
Consultant guarantees and warrants that Consultant will use that degree
of skill and care ordinarily exercised under similar conditions by reputable
members of its profession practicing in the same or similar locality. This
guarantee does not in any way limit Marathon's right to pursue any other
remedies allowed by law.
33. DEFAULT
Consultant shall be considered in default hereunder if Consultant fails
to proceed diligently and carefully in the execution of his work, or fails to
comply with any of his obligations hereunder, and any such failure: (a)
continues beyond
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the completion date called for in this Agreement, or (b) continues for ten (10)
days or more after receipt of written notice from Marathon or reoccurs after
receipt of such notice. In the event of any such default, Marathon shall have
the right, in addition to all other rights and remedies available to it at law
or in equity, to terminate this Agreement and complete the work itself or to
hire a substitute Consultant. In the event of such termination, Consultant shall
be liable to Marathon for all damages allowed by law, including any costs
incurred to complete the work which are in excess of any applicable contract sum
specified in this Agreement or any work order issued hereunder. In addition, in
the event of such termination, Consultant shall not be entitled to any
compensation for the work performed prior to said termination until Marathon has
had the opportunity to complete the contemplated project and to determine the
exact amount of damages caused by Consultant's default. The rights and remedies
available to Marathon contained in this Agreement shall be construed as
cumulative, and no one of them as exclusive of the other or exclusive of any
rights or remedies allowed by law or equity.
34. WAIVER
Marathon's waiver of any of the terms and conditions set forth in this
Agreement shall not be construed or deemed to be a waiver of any future
enforcement thereof or of any other terms and conditions of this Agreement.
35. ASSIGNMENT
Consultant shall not assign this Agreement or any part of the duties to be
performed hereunder without the written consent of Marathon.
36. SUBCONTRACTORS
No subcontractors shall be retained by Consultant to perform
sub-consulting services under this Agreement without prior written approval from
Marathon.
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37. CONFIDENTIAL INFORMATION
Consultant agrees that any information which pertains to Marathon
received by Consultant during any furtherance of Consultant's obligations in
accordance with this Agreement will be held by Consultant in full confidence and
will not be revealed to any other persons, firms, or organizations, except as
provided for in Marathon's work order.
38. PATENT INDEMNITY
Consultant agrees to forever protect, indemnify and hold Marathon
harmless from and defend Marathon against any and all losses, claims, demands,
proceedings, costs, damages, charges and expenses that may arise or accrue by
reason of the infringement or alleged infringement of any patent, copyright,
design, trademark, violation of process or other protected rights of any person
or entity in the performance of the work hereunder, or by reason of the manner
in which the same is performed, or through the use by Consultant of any patented
article or device.
Consultant agrees to reimburse Marathon for any royalties, or other
similar payments that Marathon shall be obligated to pay by virtue of the use of
Consultant of any such protected rights unless such costs have been specifically
agreed to be borne by Marathon. Consultant shall obtain a patent indemnity, if
obtainable, for any items manufactured or supplied by others for the benefit of
Marathon.
Consultant shall ensure that any subcontracts between Consultant and its
subcontractors, suppliers, or consultants contain a provision substantially
similar to this Provision.
39. CONSULTANT'S PERSONNEL
All personnel employed on or assigned to the work by Consultant shall be
competent and have the requisite qualifications and/or experience for the work
to be performed and Consultant shall assign personnel in such numbers as are
required for
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the due performance of the work in the time required.
Marathon's representative shall be entitled, without prejudice to any
other rights or remedies available to Marathon under this Contract or otherwise
in law, to object to the work performed and to require Consultant to remove from
the work any person who, in the opinion of Marathon's representative is
incompetent, misconducts himself, is negligent in the proper performance of his
duties or is otherwise considered to be undesirable, and in such event
Consultant shall forthwith remove such person from the work, and such person
shall not be again employed upon the work without the approval of Marathon's
representative. Consultant shall at no additional cost to Marathon forthwith
replace any such removed person with a suitably qualified/experienced person
satisfactory to Marathon's representative.
40. AUDIT RIGHTS
Consultant, its subcontractors and its affiliates shall maintain true and
correct sets of records in connection with the work and all transactions related
thereto and shall retain all such records for a period of not less than twenty
four (24) months after the final acceptance of the work by Marathon.
From the Effective Date of this Contract and within the time period
mentioned above, Marathon shall have the right, during regularly scheduled
business hours, to inspect and audit the procedures, controls, records and
accounting data of a reasonable nature, related to the performance of this
Contract including without limitation all reimbursable costs and the application
of fixed rates, unit rates or fixed lump sums. Such audit shall not apply to the
composition of fixed rates, unit rates, day rates or fixed lump sums contained
in this Contract at the effective date of this Contract nor to the composition
of subsequently agreed lump sums.
41. ETHICAL BUSINESS CONSIDERATIONS
No director, employee or agent of Consultant shall give or receive any
commission, fee, rebate, gift or entertainment or significant cost or value in
connection with the work, or enter into any business arrangement with any
director, employee or agent of Marathon or any affiliate thereof other than as a
representative of Marathon or affiliate, without prior written notification
thereof to Marathon. Consultant shall promptly notify Marathon of any violation
of this paragraph and any consideration received as a result of such violation
shall be paid over or credited to Marathon.
IN WITNESS WHEREOF the parties hereto have executed the Agreement, the
day and year first above written.
IDS TECHNICAL SERVICES MARATHON OIL COMPANY
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Consultant
000 Xxxxxxx Xxxxx Xx. - Xxxx 000 By: /s/ ??
-------------------------------- --------------------------------
Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000 Title: Engineering Supervisor
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City, State, Zip Code
(000) 000-0000
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Telephone
00-0000000
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Tax ID No.
By: /s/
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Title: President
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SUMMARY OF MARATHON'S DRUG & ALCOHOL LABORATORY TESTING REQUIREMENTS
1. The facilities performing the tests (laboratory analysis) shall be
properly licensed and fully accredited.
2. Marathon conducts drug and alcohol testing under the following
circumstances:
a. Pre-employment Testing - All applicants for employment are
required to submit to Laboratory Testing following their
acceptance of a contingent job offer and prior to beginning work
(drug screen only).
b. Reasonable Suspicion Testing - Undertaken when responsible
officials have reasonable suspicion to believe an employee is in
violation of Marathon's Policy. For example, Laboratory Testing
may be conducted in connection with a search if contraband is
found in common areas and ownership cannot be determined; if an
employee's performance, involvement in an accident, actions or
appearance leads local management to believe there may be a
violation of the Policy; or if an employee is charged with or
being investigated in connection with a drug-related or alcohol-
related criminal offense. The foregoing examples are not meant
to be exclusive; other circumstances may arise which would
constitute reasonable suspicion to request Laboratory Testing.
C. Random Testing - All employees performing work in safety
sensitive positions at all Company locations are subject to
random drug and alcohol testing as outlined below, with the
exception of employees who are covered by a D.O.T. random
testing program.
Marathon defines a SAFETY SENSITIVE POSITION as one in which the
incumbent employee can directly influence operations to the extent that
an improper action or failure to take appropriate action could result in
irremediable consequences leading to injury or death of employees or
others and/or significant property or environmental damage and where
others may have no opportunity to recognize, intervene or rectify a
mistake before the harm occurs.
Random Testing will be conducted at an annualized rate of 25%.
d. Return to Work Testing - Employees who are permitted to return
to work following a positive laboratory test or other Policy
violation and/or rehabilitation are subject to Laboratory
Testing as determined by Health Services, and as outlined in a
Return to Work Agreement.
e. Aviation Department Testing - Employees in Marathon's Aviation
Department are subject to periodic unannounced testing at least
once per year.
f. Periodic Testing - Employees in positions requiring periodic
Department of Transportation (Federal Highway Administration
(FHWA) or Federal Aviation Administration (FAA) physical
examinations will be required to submit to Laboratory Testing
when they undergo their periodic physical examination.
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