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[EXHIBIT 10.14]
DOCUMENT 00500
AGREEMENT
THIS AGREEMENT is dated as of the 23rd day of July in the Year 1997 by and
between USPCI, a Xxxxxxx Environmental Services. Inc. Company (hereinafter
called OWNER) and. X.X. Xxxxx & Co. (hereinafter called CONTRACTOR).
OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set
forth, agree as follows:
ARTICLE 1. WORK
CONTRACTOR shall complete all work as specified or indicated in the Contract
Documents. The Work is generally described as follows:
The construction of Industrial Waste Cell 1 Closure, Industrial Waste
Cell 2 Closure, and Landfill Cell Y Closure complete and associated
drainage facilities at the Grassy Mountain Facility near Knolls, Utah,
with the exception of the geosynthetic clay liner, high density
polyethylene (HOPE) liner, drainage net, and filter fabric. The Work
shall also consist of providing all surveying associated with the
construction and grade checking of these cell closures. The geosynthetic
liner, HOPE synthetic liner, drainage net and filter fabric will be
furnished and installed by an independent liner contractor, under a
separate contract with the Owner. The independent liner contractor is to
be:
Polyflex Construction, Inc.
c/o Xxxxxx Xxxx/Xxxx Xxxx
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx Xxxxxxx, Xxxxx 00000
(000)000-0000 xxx 000 or 393
Fax (000) 000-0000
The above explanation is intended to give a general understanding of the scope
of the work under these specifications, and shall not be construed to be an
itemized listing of each element of work required. The Contractor shall be
responsible for construction of complete facilities conforming in all respects
to the details and requirements of the specifications, drawings, and other
contract documents.
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ARTICLE 2. ENGINEER
The Owner shall assume all duties and responsibilities and have the rights and
authority assigned to ENGINEER in the Contract Documents in connection with
completion of the Work in accordance with the Contract Documents.
ARTICLE 3. CONTRACT TIMES, LIQUIDATED DAMAGES, OTHER DAMAGES, AND INCENTIVE
PROGRAM FOR EARLY COMPLETION
3.1 Contract Times. All work under this contract will be completed and
ready for final payment in accordance with paragraph 14.13 of the
General Conditions within 137 calendar days after the date when the
Contract Time commences to run as defined in the Notice to Proceed.
The Contract Time provided above shall also include the time required
for the liner contractor (under separated contract with USPCI) to
install the geosynthetic clay liner, the HDPE synthetic liner, the
drainage net, and the filter fabric. THE TIME REQUIRED BY THE LINER
CONTRACTOR SHALL BE DETERMINED DURING A SCHEDULING MEETING FOR
CONSTRUCTION SEQUENCING WITH THE LINER CONTRACTOR, WHICH WILL TAKE PLACE
WITH THE APPARENT SUCCESSFUL BIDDER AND THE LINER CONTRACTOR PRIOR TO
ISSUANCE OF THE NOTICE OF AWARD. AWARD OF THE CONTRACT WILL BE DEPENDENT
ON THE DEVELOPMENT OF A SCHEDULE (ACCEPTABLE TO THE OWNER) BETWEEN THE
CONTRACTOR AND THE LINER CONTRACTOR. THE TIME DETERMINED FOR THIS
CONSTRUCTION SEQUENCE SHALL BE SUMMARIZED IN SCHEDULE FORMAT AND
PROVIDED TO THE OWNER. DOCUMENTATION SHALL BE PROVIDED WHICH INDICATES
ACCEPTANCE OF THIS SCHEDULE BY BOTH THE CONTRACTOR AND THE LINER
CONTRACTOR. This documentation shall become part of this Agreement. The
time schedule shall include the following:
3.1.1 The time schedule shall indicate start/finish dates,
times and duration allotted for each component of
construction (including geosynthetics installation tasks
performed by the liner contractor) in detail (i.e.,
material shipments complete for each type of material by
liner contractor; anchor trench excavation and backfill
throughout by Contractor; geosynthetic clay liner, HDPE
synthetic liner, drainage net, and filter fabric
installation by liner contractor; followed by imported
soil cover by Contractor; and which 1/2 of each cell
closure is to be finished first, the next 1/2 and so on
from start to finish). Any changes to this schedule
shall be made AT LEAST SEVEN (7) DAYS IN ADVANCE IN
WRITING.
3.2 Liquidated Damages. OWNER and CONTRACTOR recognize that time is of
the essence of this Agreement and that OWNER will suffer damages if the
Work is not completed within the times specified in paragraph 3.1 above,
plus any extensions thereof allowed in accordance with Article 12 of the
General Conditions. They also recognize the delays, expense and
difficulties involved in proving the actual loss suffered by OWNER if
the Work is not completed on time. Accordingly, instead of requiring any
such proof, OWNER AND CONTRACTOR AGREE THAT AS LIQUIDATED DAMAGES FOR
DELAY (BUT NOT AS
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A PENALTY) CONTRACTOR SHALL PAY OWNER TWO-THOUSAND FIVE HUNDRED DOLLARS
($2.500.00) FOR EACH DAY THAT EXPIRES AFTER THE TIME SPECIFIED IN
PARAGRAPH 3.1 FOR FINAL COMPLETION UNTIL THE WORK IS COMPLETE AND READY
FOR FINAL PAYMENT.
3.3 Other Damages. OWNER and CONTRACTOR recognize that OWNER will suffer
damages, in addition to those covered under liquidated damages, if 1)
actual work hours incurred by CONTRACTOR exceed those defined by
CONTRACTOR in the time scaled precedence diagram provided in
CONTRACTOR'S Bid, wherein CONTRACTOR has defined the number of shifts
per day, work hours per shift, and number of days per week within which
work is to be accomplished; or if 2) CONTRACTOR causes a delay to the
liner contractor, resulting in standby or other charges being assessed
to OWNER by the liner contractor and resulting in additional inspection
costs. ACCORDINGLY, OWNER AND CONTRACTOR AGREE THAT AS DAMAGES FOR
ACTUAL WORK HOURS INCURRED BY CONTRACTOR WHICH EXCEED THOSE DEFINED BY
CONTRACTOR IN THE TIME SCALED PRECEDENCE DIAGRAM PRODDED IN CONTRACTOR'S
BID, CONTRACTOR SHALL PAY OWNER ALL ADDITIONAL INSPECTION COSTS INCURRED
BY OWNER. OWNER AND CONTRACTOR ALSO AGREE THAT AS DAMAGES FOR CAUSING
DELAYS TO THE LINER CONTRACTOR, CONTRACTOR SHALL PAY OWNER THE LINER
CONTRACTOR'S STANDBY CHARGES ($2,500.00 PER DAY) OR THE LINER
CONTRACTOR'S REMOBILIZATION FEES (IF REMOBILIZATION OF THE LINER
CONTRACTOR WOULD BE LESS COSTLY THAN HOLDING THE LINER CONTRACTOR ON
STANDBY), PLUS ALL ADDITIONAL INSPECTION COSTS INCURRED BY OWNER AS A
RESULT OF THE DELAY.
3.4 Incentive Program for Early Contract Completion. OWNER and
CONTRACTOR recognize that time is of the essence of this Agreement and
that OWNER will benefit from early completion of the Work. ACCORDINGLY,
OWNER AND CONTRACTOR AGREE THAT AS INCENTIVE FOR EARLY COMPLETION OF THE
WORK, OWNER SHALL PAY CONTRACTOR TWOTHOUSAND FIVE HUNDRED DOLLARS
($2,500.00) FOR EACH DAY THAT THE WORK IS COMPLETED PRIOR TO THE TIME
SPECIFIED IN PARAGRAPH 3.1 FOR COMPLETION AND READINESS FOR FINAL
PAYMENT, NOT TO EXCEED $50,000 IN TOTAL INCENTIVE BONUS PAID.
ARTICLE 4. CONTRACT PRICE
OWNER shall pay CONTRACTOR for completion of the Work in accordance with the
Contract Documents an amount in current funds pursuant to paragraphs 4.1 and 4.2
below:
4.1 for all Work other than Unit Price Work, a Lump Sum of:
See Bid Schedule attached in Exhibit D.
All specific cash allowances are included in the above price and have
been computed in accordance with paragraph 11.8 of the General
Conditions;
plus
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4.2 for all Unit Price Work, an amount equal to the sum of the
established unit price for each separately identified item of Unit Price
Work times the actual quantity of that item completed as indicated in
this paragraph 4.2:
See Bid Schedule attached in Exhibit D.
As provided in paragraph 11.9 of the General Conditions estimated quantities are
not guaranteed, and determinations of actual quantities and classification are
to be made by ENGINEER as provided in paragraph 9.10 of the General Conditions.
Unit prices have been computed as provided in paragraph 11.9.2 of the General
Conditions.
ARTICLE 5. PAYMENT PROCEDURES
CONTRACTOR shall submit applications for Payment in accordance with Article 14
of the General Conditions. Applications for Payment will be processed by
ENGINEER as provided in the General Conditions.
5.1 Progress Payments; Retainage. OWNER shall make progress payments on
account of the Contract Price on the basis of CONTRACTOR's proper
Applications for Payment as recommended by ENGINEER during construction
as provided in paragraphs 5.1.1 and 5.1.2 below. All such payments will
be measured by the schedule of values established in paragraph 2.9 of
the General Conditions (and in the case of Unit Price Work based on the
number of units completed) or, in the event there is no schedule of
values, as provided in the General Requirements.
5.1.1 Prior to Substantial Completion, progress payments will be
made in an amount equal to the percentage indicated below, but in
each case, less the aggregate of payments previously made and
less such amounts as ENGINEER shall determine, or OWNER may
withhold, in accordance with paragraph 14.7 of the General
Conditions.
90% of the Work completed (with the balance being
retainage).
90% (with the balance being retainage) of materials and
equipment not incorporated in the Work (but delivered,
suitably stored and accompanied by documentation
satisfactory to OWNER as provided in paragraph 14.2 of the
General Conditions).
5.1.2 Upon Substantial Completion, in an amount sufficient to
increase total payments to CONTRACTOR to 90% of the Contract
Price (with the balance being retainage), less such amounts as
ENGINEER shall determine, or OWNER may withhold, in accordance
with paragraph 14.7 of the General Conditions and less previously
paid amount.
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5.2 Final Payment. Upon final completion and acceptance of the Work in
accordance with paragraph 14.13 of the General Conditions, OWNER shall
pay the remainder of the Contract Price as recommended by ENGINEER as
provided in said paragraph 14.13.
ARTICLE 6. INTEREST
All moneys due and unpaid over 21 days after the date as provided in Article 14
of the General Conditions shall bear interest at six percent (6%) per annum or
part thereof until full payment shall have been made.
ARTICLE 7. CONTRACTOR'S REPRESENTATIONS
In order to induce OWNER to enter into this Agreement CONTRACTOR makes the
following representations:
7.1 CONTRACTOR has examined and carefully studied the Contract Documents
(including the Addenda listed in paragraph 8) and the other related data
identified in the Bidding Documents including Technical datable.
7.2 CONTRACTOR has visited the site and become familiar with and is
satisfied as to the general, local and site conditions that may affect
cost, progress, performance or furnishing of the Work.
7.3 CONTRACTOR is familiar with and is satisfied as to all federal,
state and local Laws and Regulations, including those of the U.S.
Environmental Protection Agency and/or applicable state environmental
regulations, that may affect cost, progress, performance or furnishing
of the Work.
7.4 CONTRACTOR has carefully studied all reports of exploration and
tests of subsurface conditions at or contiguous to the site and all
drawings of physical conditions in or relating to existing surface or
subsurface structures at or contiguous to the site (except Underground
Facilities) which have been identified in the Supplementary Conditions
as provided in paragraph 4.2.1 of the General Conditions. CONTRACTOR
accepts the determination set forth in paragraph SC 4.2 of the
Supplementary Conditions of the extent of the Technical data contained
in such reports and drawings upon which CONTRACTOR is entitled to rely
as provided in paragraph 4.2 of the General Conditions. CONTRACTOR
acknowledges that such reports and drawings are not Contract Documents
and may not be complete for CONTRACTOR's purposes. CONTRACTOR
acknowledges that OWNER and ENGINEER do not assume responsibility for
the accuracy or completeness of information and data shown or indicated
in the Contract Documents with respect to Underground Facilities at or
contiguous to the site. CONTRACTOR has obtained and carefully studied
(or assumes responsibility for having done so) all such additional
supplementary examinations, investigations, explorations, tests, studies
and data concerning conditions (surface, subsurface and Underground
Facilities) at or contiguous to the site or otherwise which may affect
cost, progress, performance or furnishing of the Work or which relate to
any aspect of the means,
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methods, techniques, sequences and procedures of construction to be
employed by CONTRACTOR and safety precautions and programs incident
thereto. CONTRACTOR does not consider that any additional examinations,
investigations, explorations, tests, studies or data are necessary for
the performance and furnishing of the Work at the Contract Price, within
the Contract Times and in accordance with the other terms and conditions
of the Contract Documents.
7.5 CONTRACTOR is aware of the general nature of the work to be
performed by OWNER and others at the site that relates to the Work as
indicated in the Contract Documents.
7.6 CONTRACTOR has correlated the information known to CONTRACTOR,
information and observations obtained from visits to the site, reports
and drawings identified in the Contract Documents and all additional
examinations, investigations, explorations, tests, studies and data with
the Contract Documents.
7.7 CONTRACTOR has given ENGINEER written notice of all conflicts,
errors, ambiguities or discrepancies that CONTRACTOR has discovered in
the Contract Documents and the written resolution thereof by ENGINEER is
acceptable to CONTRACTOR, and the Contract Documents are generally
sufficient to indicate and convey understanding of all terms and
conditions for performance and furnishing of the Work.
ARTICLE 8. CONTRACT DOCUMENTS
The Contract Documents which comprise the entire agreement between OWNER and
CONTRACTOR concerning the Work consist of the following:
8.1 This Agreement (pages 1 to 9 inclusive).
8.2 Exhibits to this Agreement (Exhibits 0 to 0, inclusive).
8.3 Certificate of Insurance, identified as Exhibit A.
8.4 Notice of Award, identified as Exhibit B.
8.5 Addenda number 1 to 2 inclusive, identified as Exhibit C.
8.6 CONTRACTOR's Bid marked Exhibit D, consisting of the Bid Form (pages
1 to 4 inclusive) and the Bid Schedule (pages 1 to 5 inclusive).
8.7 Documentation submitted by CONTRACTOR prior to Notice of Award
(pages __ to __ inclusive) marked Exhibit E.
8.8 General Conditions (pages 1 to 45 inclusive).
8.9 Supplementary Conditions (pages 1 to 13 inclusive).
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8.10 Specifications bearing the title L and consisting of _ divisions
and _ pages, as listed in table of contents thereof.
8.11 Drawings, with each sheet bearing the following general title:
Grassy Mountain Facility
Industrial Waste Cell 1 - Closure,
Grassy Mountain Facility
Industrial Waste Cell 2 - Closure, or
Grassy Mountain Facility Landfill Cell Y - Closure.
8.12 The following which may be delivered or issued after the Effective
Date of the Agreement and are not attached hereto: All Written
Amendments and other documents amending, modifying, or supplementing the
Contract Documents pursuant to paragraphs 3.5 and 3.6 of the General
Conditions.
The documents listed in paragraphs 8.2 et seq. above are attached to this
Agreement (except as expressly noted otherwise above).
There are no Contract Documents other than those listed above in this Article 8.
The Contract Documents may only be amended, modified or supplemented as provided
in paragraphs 3.5 and 3.6 of the General Conditions.
ARTICLE 9. MISCELLANEOUS
9.1 Terms used in this Agreement which are defined in Article 1 of the
General Conditions will have the meanings indicated in the General
Conditions.
9.2 No assignment by a party hereto of any rights under or interests in
the Contract Documents will be binding on another party hereto without
the written consent of the party sought to be bound; and, specifically
but without limitation, moneys that may become due and moneys that are
due may not be assigned without such consent (except to the extent that
the effect of this restriction may be limited by law), and unless
specifically stated to the contrary in any written consent to an
assignment no assignment will release or discharge the assignor from any
duty or responsibility under the Contract Documents.
9.3 OWNER and CONTRACTOR each binds itself, its partners, successors,
assigns and legal representatives to the other party hereto, its
partners, successors, assigns and legal representatives in respect to
all covenants, agreements and obligations contained in the Contract
Documents.
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9.4 Any provision or part of the Contract Documents held to be void or
unenforceable under any Law or Regulation shall be deemed stricken, and
all remaining provisions shall continue to be valid and binding upon
OWNER and CONTRACTOR, who agree that the Contract Documents shall be
reformed to replace such stricken provision or part thereof with a valid
and enforceable provision that comes as close as possible to expressing
the intention of the stricken provision.
9.5 OTHER PROVISIONS.
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IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in
triplicate. One counterpart each has been delivered to OWNER, CONTRACTOR and
ENGINEER. All portions the Contract Documents have been signed, initialed or
identified by OWNER and CONTRACTOR or identified by ENGINEER on their behalf.
This Agreement will be effective on ______________________________, 1997.
OWNER CONTRACTOR
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By By
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(CORPORATE SEAL) (CORPORATE SEAL)
Attest Attest
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Address for giving notices Address for giving notices
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License No.
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Agent for service of process
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(If CONTRACTOR is a corporation,
attach evidence of authority to
sign.)
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