EXHIBIT 10.13
Xxxxxxxxx Xx. XX-00000-XX
XXXXXXXX GAS TRANSMISSION CORPORATION
GENERAL SERVICES AGREEMENT
THIS GENERAL SERVICES AGREEMENT, made this 11TH day of AUGUST, 1995, by
and between Columbia Gas Transmission Corporation, a Delaware corporation having
its principal office at 0000 XxxXxxxxx Xxxxxx, S. E., (P. 0. Box 1273)
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000, hereinafter called "Transmission", and IDS
TECHNICAL SERVICES, A DIVISION OF INDUSTRIAL DATA SYSTEMS, INC., having its
principal office AT 000 XXXXXXX XXXXX XXXXX, XXXX. 000, XXXXXXX, XX 00000-0000
hereinafter called "Contractor".
WITNESSETH that, WHEREAS, Transmission desires that certain services be
performed and Contractor is willing to provide certain services as required from
time to time by Transmission during the term hereof.
NOW, THEREFORE, in consideration of mutual premises, the parties hereto
agree as follows:
Contractor agrees to perform the below indicated services in accordance
with: (1) this General Services Agreement (2) Transmission's "Provisions of
General Services Agreement" (Edition April 1995), (3) Schedule of services and
pricing consisting of 1 page(s), (4) Service Authorization(s) and, (5) other
appendices [NONE].
This General Services Agreement shall remain in full force and effect
until canceled by either Transmission or Contractor by giving thirty (30) days
notice, in writing, to the other.
IN WITNESS WHEREOF, the parties have executed this Contract as of the day
and year first above written.
COLUMBIA GAS TRANSMISSION
CORPORATION
IDS TECHNICAL SERVICES,
A DIVISION OF INDUSTRIAL DATA
SYSTEMS, INC.
By: /s/ R. XXXXX XXXXXXXX By: /s/ XXXXXXX X. XXXXXX
Its: PRESIDENT Its: PRESIDENT
Edition APRIL, 1995
COLUMBIA GAS TRANSMISSION CORPORATION
PROVISIONS OF GENERAL SERVICES AGREEMENT
Edition April, 1995
COLUMBIA GAS TRANSMISSION CORPORATION
PROVISIONS OF GENERAL SERVICES AGREEMENT
TABLE OF CONTENTS
ARTICLE 1. DOCUMENTS WHICH COMPRISE THE CONTRACT .............. 1
1.01 Composition of the Contract ........................ 1
ARTICLE 2. INTERPRETATION OF DOCUMENTS ........................ 1
2.01 Resolution of Conflict in Documents ................ 1
ARTICLE 3. OBLIGATION OF CONTRACTOR ........................... 1
3.01 Timely Completion................................... 1
3.02 Performance Warranties.............................. 1
3.03 Environmental Warranties .......................... 2
3.04 Supervision ....................................... 3
3.05 Payment of Creditors................................ 3
3.06 Compliance With Applicable Laws .................... 4
3.07 Safety.............................................. 4
3.08 Substance Abuse..................................... 4
ARTICLE 4. SUBCONTRACTORS ................................... 5
4.01 Need for Prior Approval; Qualifications ............ 5
4.02 Notification and Documentation ..................... 5
4.03 Liability for Subcontractor's Work ................. 5
ARTICLE 5. INDEMNITY........................................... 5
5.01 Basic Indemnification............................... 5
5.02 Exclusion from Indemnification .................... 6
5.03 Responsibilities Within Rights-of-Way .............. 6
ARTICLE 6. CONTRACTOR'S INSURANCE ........................... 7
6.01 Basic Insurance .................................. 7
6.02 Special Provisions in Insurance Contracts .......... 9
6.03 Subcontractors...................................... 9
6.04 Evidence of Insurance............................... 9
ARTICLE 7. INSPECTION AND APPROVAL; PAYMENT ................... 10
7.01 Inspection ....................................... 10
7.02 Approval .......................................... 10
7.03 Payment............................................. 10
7.04 Audit............................................... 10
COLUMBIA GAS TRANSMISSION CORPORATION
PROVISIONS OF GENERAL SERVICES AGREEMENT
TABLE OF CONTENTS (CONTINUED)
ARTICLE 8. TERM AND TERMINATION . . . . . . . . . . . . . . . 11
8.01 General Provisions . . . . . . . . . . . . . . . 11
8.02 Termination by Transmission . . . . . . . . . . . 11
ARTICLE 9. MISCELLANEOUS . . . . . . . . . . . . . . . . . 11
9.01 Independent Contractor . . . . . . . . . . . . 11
9.02 Notice . . . . . . . . . . . . . . . . . . . . . 11
9.03 Effect of Waivers . . . . . . . . . . . . . . . 12
9.04 Assignment and Delegation . . . . . . . . . . . 12
9.05 Nondiscriminatory Employment Practices . . . . . 12
9.06 Rights and Remedies Cumulative . . . . . . . . 12
9.07 Setoff . . . . . . . . . . . . . . . . . . . 12
9.08 Headings . . . . . . . . . . . . . . . . . . . 12
9.09 Choice of Law . . . . . . . . . . . . . . . . 12
9.10 Severability . . . . . . . . . . . . . . . . 13
9.11 Entire Agreement . . . . . . . . . . . . . . . 13
9.12 Confidentiality . . . . . . . . . . . . . . . 13
Edition April, 1995
COLUMBIA GAS TRANSMISSION CORPORATION
PROVISIONS OF GENERAL SERVICES AGREEMENT
ARTICLE 1. DOCUMENTS WHICH COMPRISE THE CONTRACT
1.01 COMPOSITION OF THE Contract. The Contract consists of the General
Services Agreement executed by Contractor and Transmission, these Provisions,
the schedule of services and pricing prepared in connection with the particular
General Services Agreement, the service authorizations and any other .Appendix
prepared in connection with the General Services Agreement.
ARTICLE 2. INTERPRETATION OF DOCUMENTS
2.01 RESOLUTION OF CONFLICT IN DOCUMENTS. If there is a conflict among the
documents which comprise the Contract, the documents will rank in the following
order, with the terms of the earlier-listed documents controlling the terms of
the later-listed documents:
a) General Services Agreement
b) Provisions of General Services Agreement
c) Service Authorization
d) Schedule of Services and Pricing
e) Additional Appendixes
ARTICLE 3. OBLIGATION OF CONTRACTOR
3.01 TIMELY COMPLETION. Contractor agrees to perform the services in a
timely manner. Time is of the essence in the performance of this Contract.
3.02 PERFORMANCE WARRANTIES: Contractor warrants to Transmission that:
(a) The services will be provided by Contractor in accordance with, and for
the price provided in, the Contract, and when completed, will be free from
defects.
(b) All material supplied directly or indirectly by Contractor will be new,
free from defects, and in accordance with the requirements of the Contract.
(c) All labor involved in performance of the services will be first class,
performed only by employees qualified to do the job to which they are assigned,
and supervised at all times by one or more qualified superintendents employed by
Contractor.
(d) Contractor will at all times enforce strict discipline of, and good
order among, its employees, and Contractor will immediately remove and not
reemploy any employee who is incompetent, disorderly, unreliable, or otherwise
unsatisfactory.
Edition April, 1995 MS-48157-GN
3.03 ENVIRONMENTAL WARRANTIES.
(a) Contractor warrants and agrees to perform its work in accordance with
all applicable environmental laws and regulations, including all amendments
relating thereto and to conduct all other activities in an environmentally
responsible manner and in accordance with accepted industry practices and
regulatory standards.
(b) Transmission shall furnish to Contractor, upon request, copies of all
licenses, permits, certificates, authorizations, etc. including any special
environmental or other conditions relating to the work to be performed under
this Agreement that Transmission has obtained or received.
(c) Contractor shall furnish to Transmission upon request copies of all
licenses, permits, certificates, authorizations, etc. including any special
environmental or other conditions relating to the work to be performed under
this Agreement that Contractor has obtained or received.
(d) Contractor shall furnish as required by Transmission satisfactory
evidence of its compliance with such licenses, permits, certificates,
authorizations and all special environmental or other conditions attached to
such authorizations.
(e) Contractor where required by law to have its employees licensed,
trained, certified, etc. by any governmental body or by a qualified training
institution to perform any or all of the work contemplated by this Agreement
shall furnish a copy of each such person's currently valid license, training
acknowledgment, certification, etc. to Transmission upon request at least ten
days prior to starting such work.
(f) Contractor will immediately notify Transmission in writing of (1) any
reports made to any environmental agency in connection with Contractor's
operations or work performed under this Agreement and (2) any environmental
complaints, notices, warnings, alleged violations communicated to Contractor,
its officers, directors, employees, agents, Subcontractors, representatives or
others acting for Contractor by any governmental agency which relate to the work
Contractor is performing under this Agreement. Contractor will immediately
supply Transmission with copies of any written reports, complaints, notices,
warnings or alleged violations.
(g) Contractor shall comply with all of the requirements of 29 C.F.R. ss.
1910.1200 commonly known as the hazard communication standard, plus the
applicable portions of the Emergency Planning and Community Right-to-Know Act of
1986, and the Federal, state and local Emergency Response organization's rules
and regulations.
Edition April, 1995 - 2 MS-48157-GN
(h) Contractor shall continuously maintain adequate protection of all its
work from damage; shall protect Transmission's property from damage or loss
arising in connection with the Agreement; shall at all times exercise due care
with regard to all excavations, equipment, machinery and materials to prevent
loss or injury to persons and property, including livestock: and shall use such
adequate protective devices, warning signs, barriers and trench shoring as
required by governmental authority and by safe construction practices.
(i) In situations where the Contractor creates or refuses to correct
environmental, health or safety situations having the potential of causing
serious injury to the public, Transmission's customers, employees of
Transmission or the Contractor, or the environment, the authorized Transmission
representative shall have the right to stop work until Contractor corrects the
situation to the satisfaction of the Transmission representative.
(j) Contractor shall not bury or otherwise discard wastes on property of
Transmission or any leases, right-of-way or easements acquired by Transmission
during the performance of the work covered by this Agreement.
(k) Contractor, at the completion of work covered by this Agreement, shall
remove any and all materials, substances and/or chemicals brought onto the work
site by Contractor or Transmission which are unused, used but suitable for
reuse, or wastes including spill residues of such materials, substances and/or
chemicals unless Transmission, in writing, accepts title to such.
(1) Contractor, when directed to perform work on or near Transmission's
pressurized gas facilities, shall perform such work only when an authorized
Transmission representative is present.
(m) Contractor agrees that Transmission may appoint an authorized
Transmission representative for each work site and Contractor agrees to abide by
such representative's advice and counsel in matters affecting the environment
and in health and safety issues related to Transmission's equipment on premises.
3.04 SUPERVISION. Contractor will: supervise the services efficiently and
with its best skill and attention; be responsible for the means and methods of
performance of the Contract; and have a qualified superintendent, acceptable to
Transmission, at each location where services will be performed, who is vested
with full authority to represent Contractor under the Contract and in
performance of the services.
3.05 PAYMENT OF CREDITORS. (a) Contractor will promptly pay the claims of
all:
(1) Vendors, materialmen, suppliers, employees, subcontractors,
consultants, representatives, agents, and all other persons and entities;
Edition April, 1995 - 3 MS-48157-GN
(2) Federal, state, and local governments for taxes and other
obligations; and
(3) Other creditors, which Contractor is obligated to pay and whose
obligations are connected, directly or indirectly, with the services.
(b) If Contractor notifies Transmission, in writing received by
Transmission prior to Transmission's payment of any claim, that Contractor
reasonably and in good faith contests the validity or amount of the claim,
Transmission will not pay the claim so long as Contractor is actively contesting
the claim; provided, that Transmission may pay the claim irrespective of
Contractor's contesting the claim, if (1) the claim becomes a lien on any assets
of Transmission, or (2) the creditor asserts the claim against Transmission, and
Transmission believes that there is a reasonable basis for the creditors'
assertion.
3.06 COMPLIANCE WITH APPLICABLE LAWS. Contractor, in performing the duties
hereunder, shall comply with all applicable laws and with all applicable orders,
rules and regulations of duly constituted authorities having jurisdiction.
3.07 SAFETY. Contractor will observe all applicable Federal, state and
local safety requirements, useadequate protective devices, warning signs, and
barriers as may be required by Transmission's and Contractor's permits and
licenses, and otherwise as may reasonably be needed under the circumstances.
Contractor-will perform the work safely and will exercise care to ensure that
persons and property will not be injured or damaged in performance of the
services.
3.08 SUBSTANCE ABUSE. (a) For the purposes of this section, the
below-listed terms are defined as follows:
(1) "Alcohol" and "drug(s)" include any substance with the potential
to produce the effect of intoxication and/or any substances with the
potential to produce physical, mental, emotional, or behavioral change in
the user.
(2) "Abuse" includes the use of any substance that deviates from the
intent of this policy or from specific medical direction.
(3) "Transmission or Contractor premises" is used in its broadest
sense, and includes all land (including leaseholds, easements, and other
job sites), property, buildings and other structures, vehicles owned by or
leased to Transmission or Contractor, and personal vehicles while used on
business.
(4) "On the job" includes paid and unpaid meal periods during the
business day, including paid and unpaid overtime.
Edition April, 1995 - 4 MS-48157-GN
(b) ALCOHOL. The use or possession of alcohol on Transmission or
Contractor premises, or being under the influence of alcohol on the job, is
prohibited. In addition, off-the-job abuse of alcohol which adversely affects a
person's job performance, or adversely affects or threatens to adversely affect
other interests of Transmission or other persons, is prohibited.
(c) DRUGS. The use or illegal possession of drugs on the job or on
Contractor or Transmission premises is prohibited; provided, that an employee of
either Transmission or Contractor may continue to work, even though under the
influence of a legal drug, if Transmission and Contractor determine that the
person does not pose a threat to his or her own safety or the safety of others
and that the person's job performance is not significantly affected by the legal
drug. In addition, the off-the-job abuse or illegal possession of drugs which
adversely affects a person's job performance, or adversely affects or threatens
to affect other interests of Transmission or other persons, is prohibited.
ARTICLE 4. SUBCONTRACTORS
4.01 NEED FOR PRIOR APPROVAL; QUALIFICATIONS. Unless Transmission gives
its prior written consent, (a) Contractor will not delegate any of its duties
under the Contract or (b) subcontract any of the duties to be performed by it
hereunder. Contractor will employ only competent, experienced, and skilled
Subcontractors. Any delegation or subcontract of Contractor's duties hereunder,
regardless of whether such delegation or subcontract has been approved by
Transmission, shall not relieve Contractor of its responsibilities hereunder and
Contractor shall remain liable to Transmission with respect to such
undertakings.
4.02 NOTIFICATION AND DOCUMENTATION. If Contractor desires to subcontract
any of the services to be performed under the Contract, Contractor will notify
Transmission in writing of the names of any Subcontractors it proposes to employ
and will, if requested by Transmission, submit to Transmission a copy of the
subcontract Contractor proposes to use. In any event, the subcontract must
contain a provision requiring the Subcontractor to be bound by the terms of the
Contract so far as applicable to the services to be performed by the
Subcontractor. If requested by Transmission, Contractor will furnish
Transmission with a signed copy of any subcontract.
4.03 LIABILITY FOR SUBCONTRACTOR'S WORK. Irrespective of whether
Transmission has approved a Subcontractor and/or a subcontract, Contractor
warrants that all work performed by all Subcontractors will comply with all of
the terms and conditions of the Contract.
ARTICLE 5. INDEMNITY
Edition April, 1995 - 5 - MS-48157-GN
5.01 BASIC INDEMNIFICATION. Contractor shall indemnify and hold harmless
Transmission from and against any and all loss, damage, and liability from any
and all claims for damages on account of or by reason of bodily injury,
including death, which may be sustained or claimed to be sustained by any
person, including the employees of Contractor and of any Subcontractor of
Contractor, and from and against any and all damages to property, including loss
of use, and including property of Transmission, caused by o ' r arising out of
or claimed to have been caused by or to have arisen out of an act or omission of
Contractor or its agents, employees or Subcontractors in connection with the
performance of this Agreement, or caused by or arising out of or claimed to have
been caused by or to have arisen out of the concurrent negligence of Contractor
and Transmission, their agents and employees, respectively, in connection with
the performance of this Agreement, whether or not insured against; provided,
however, that the foregoing indemnification will not cover loss, damage, or
liability arising from the sole negligence or willful misconduct of
Transmission, its agents and employees. Contractor shall, at its own cost and
expense, defend any claims, suits, actions, or proceedings, whether groundless
or not, which may be commenced against Transmission in connection with
performance of this Agreement, and Contractor shall pay any and all judgments
which may be recovered in any such actions, claims, proceedings, or suits, and
defray any and all expenses, including costs and attorney's fees, which may be
incurred in or by reason of such actions, claims, proceedings, or suits.
Notwithstanding the foregoing, in the event of such actions, claims, proceedings
or suits, Transmission shall be entitled, if it so elects, to representation by
attorneys of its own selection, including attorneys employed by Transmission.
The obtaining by Contractor of a release or discharge, running to Contractor or
Transmission or either or both of them for damages in connection with this
Contract shall not diminish or affect in any way the rights of Transmission and
the obligations of Contractor as set forth in this Article 5. To the extent
permitted by law, Contractor expressly waives the benefit, for itself and all
Subcontractors, insofar as the indemnification of Transmission is concerned, of
the provisions of any applicable workers' compensation law limiting the tort or
other liability of an employer on account of injuries to the employer's
employees.
5.02 EXCLUSION FROM INDEMNIFICATION. The foregoing indemnification does
not extend to Transmission's contractual obligation to compensate landowners as
provided in deeds, leases, licenses, or other contracts between Transmission and
the owners of the land on which any portion of this Contract between
Transmission and the owners of the land on which any portion of this Contract is
to be performed, except to the extent that the requirement of compensation is
the result of:
(a) Contractor's default under this Contract;
(b) Contractor's trespass on or other improper damage to the property of
others; or
(c) Contractor's other act or failure to act which is actionable (whether
negligent, willful, reckless, wanton, intentional,
Edition April, 1995 - 6 - MS-48157-GN
or otherwise tortious), or for which strict, absolute, statutory, or
other type of liability may be imposed.
5.03 RESPONSIBILITIES WITHIN RIGHTS-OF-WAY. Unless otherwise provided in
the Agreement, Transmission shall bear the liability and pay for damage to
crops, shrubs, trees, grass and plantings within the right-of-way, except where
Contractor, its agents, employees, or Subcontractors through negligence,
carelessness, or any other reason, cause unreasonable damage thereto, in which
event that portion of the damages so caused shall be the sole responsibility of
Contractor. In addition, Contractor shall be responsible for the damages arising
from its exercise of the right of access to and from the right-of-way.
ARTICLE 6. CONTRACTOR'S INSURANCE
6.01 Insurance. Contractor shall provide, at its own cost and expense,
insurance of the kinds and in the amounts specified in the following schedule,
to cover all loss or liability for damages on account of bodily injury,
including death resulting therefrom, and damage to or destruction of property
caused by or arising out of any and all operations Carried on or any and all
work performed under this Agreement.
(a) WORKERS' COMPENSATION Coverage shall include the following:
(i) Workers' Compensation - Statutory coverage applicable in
each state where work is to be performed, including coverage
for occupational disease, if and as required.
(ii) Employer's Liability - Minimum limit of $1,000,000 per
occurrence. If coverage is obtained from a state fund (Ohio
or West Virginia), Employer's Liability coverage may not be
available. In such cases, Contractor will purchase "Stop
Gap" coverage, with minimum limits of $1,000,000 per
occurrence, from a commercial insurer.
(iii) All States Endorsement (or equivalent). -If coverage is
obtained from a state fund (Ohio or West Virginia) an All
States endorsement may not be available. In such cases,
Contractor will obtain Workers' Compensation insurance in
every state in which operations may be conducted or work may
be performed under the terms of this Agreement.
(iv) U. S. Longshoremen's and Harbor Workers' Compensation Act
coverage, U. S. Defense Bases Act Coverage, Outer
Continental Shelf Land Act coverage, when applicable:
Statutory Limits.
(v) Xxxxx Act coverage when applicable. Minimum Limits re-
quired: $1,000,000 per accident.
Edition April, 1995 - 7 - MS-48157-GN
(b) COMMERCIAL GENERAL LIABILITY OR COMPREHENSIVE GENERAL LIABILITY
INSURANCE: Policy to include Blanket Contractual and Broad Form Liability
endorsements, or their equivalents, Completed Operations Coverage and, when
applicable, Products Coverage. The Contractual Liability section must
specifically cover Contractor's obligations under the indemnity provisions of
this Agreement.
MINIMUM LIMITS REQUIRED:
Bodily Injury and Personal Injury: $1,000,000 per
occurrence, Combined Single Limit.
Products/Completed Operations: . . $1,000,000 per
occurrence, Combined Single Limit.
Personal Injury:................. $1,000,000 per occurrence.
When coverage obtained in accordance with this paragraph is written on a
"Claims Made" or "Claims First Made" form, Completed Operations coverage must be
specifically endorsed to provide that it will respond to claims made for at
least 24 months after completion of the work. The Fellow Employee and Explosion,
Collapse and Underground Exclusions must be deleted.
(c) AUTOMOBILE LIABILITY: Coverage shall include all owned, nonowned,
leased or hired vehicles.
MINIMUM LIMITS REQUIRED:
Bodily Injury/Property Damage . . . $1,000,000 per
occurrence, Combined Single Limit.
Contractor warrants that it is in full compliance with any "No Fault"
provision of any state in which it operates motor vehicles.
(d) PROFESSIONAL LIABILITY (ARCHITECTS AND ENGINEERS): If Contractor or any
of its Subcontractors shall render any architectural or engineering services,
then Contractor shall maintain and shall require any such Subcontractor to
maintain professional liability insurance, including coverage for errors and
omissions with minimum limits of $1,000,000 per claim. The Case Custody and
Control and Contractual Liability exclusions shall be deleted.
(e) ENVIRONMENTAL IMPAIRMENT LIABILITY. If Contractor or any Subcontractor
will conduct any operations or perform any work related to the handling,
removal, transportation or disposal of materials classified as Hazardous Waste,
or involving Site Assessment, Remediation or other activities associated with
the restoration of contaminated land, water or atmosphere,
Edition April, 1995 - 8 - MS-48157-GN
then Contractor shall maintain, and require any such Subcontractor to maintain
Environmental Impairment Liability insurance appropriate to the type of
operations to be conducted or work to be performed, with minimum limits.
Additionally, Contractor will provide Transmission with copies of all current
licenses and/or permits required by the State(s) or local jurisdictions where
the work is to be performed.
6.02 SPECIAL PROVISIONS IN INSURANCE CONTRACTS. All insurance policies
required by this section will be written by insurance companies acceptable to
Transmission, will be primary with respect to any insurance maintained by
Transmission and will be endorsed to provide at least 30 days advance notice to
Transmission of any cancellation, non-renewal or material change in coverage,
except that cancellation for non-payment of premium will require 10 days advance
notice to Transmission. Insurance policies required by paragraphs b, c, d, e,
and g of Section 6.01 will name Transmission as an additional insured. All
insurance policies required by this Section will contain a waiver of subrogation
as against Transmission, will contain a standard "Cross Liability" endorsement.
6.03 SUBCONTRACTORS. Contractor warrants that any Subcontractors of
Contractor who conduct any operations or perform any work under the terms of
this Agreement shall maintain insurance coverages with limit at least equal to,
and coverages at least as broad as those required by this Section.
6.04 EVIDENCE OF INSURANCE. Contractor shall furnish, on behalf of
itself and any Subcontractor(s), not later than the time of signing of this
Agreement, copies of all insurance policies intended to meet the requirements
of this Section. Properly executed Certificates of Insurance may be substituted
for insurance policies provided that such Certificates contain positive
statements of compliance with all the terms of this Agreement which apply to the
type of insurance represented by the Certificate. Insurance Policies whose terms
expire during the term of this Agreement will be renewed or replaced with no
gaps in coverage, and evidence of such renewal or replacement will be provided
to Transmission under the same conditions as prescribed above.
ARTICLE 7. INSPECTION AND APPROVAL; PAYMENT
7.01 INSPECTION. (a) Transmission's authorized representatives will at all
times have access to the work for the purpose of inspection, and Contractor will
provide proper facilities for such access and inspection.
(b) Contractor will maintain adequate financial records of all work
performed hereunder. Upon request of Transmission, Contractor will make such
records available to Transmission for inspection and verification.
7.02 APPROVAL. Transmission has no obligation to pay for any services until
approved and as provided in Section 7.03.
Edition April, 1995 - 9 MS-48157-GN
7.03 PAYMENT. For the approved performance of services performed by
Contractor, Transmission agrees to pay the sum(s) specified in the Schedule of
Services and Pricing which relate to the services performed within thirty (30)
days after the services have been completed by Contractor, approved by
Transmission, and Contractor has furnished an invoice and satisfactory evidence
that all liabilities which could result in a lien or claim against Transmission
or its property have been paid or bonded.
7.04 Audit. (a) Contractor shall permit Company to audit the books and
records of Contractor relating to all payments received or invoiced pursuant to
this Agreement upon reasonable notice at any time during the pendency of this
Agreement and for a period of three (3) years after the termination of this
Agreement. In the event Company finds any discrepancy from that which should
have been made pursuant to this Agreement, Contractor, upon receipt of
documentation substantiating such discrepancy , shall immediately repay the
disputed amount plus interest at the rate of prime (as set forth in The Wall
Street Journal on a monthly basis during the repayment period).
(b) Company, and its duly authorized representatives, shall have access, at all
reasonable times, during the term of this Agreement, and for a period of three
(3) years following the completion or termination of work and final billing of
Company, to all of Contractor's and its Subcontractor I s, personnel, books,
records, correspondence, instructions, plans, drawings, receipts, vouchers and
memoranda of every description pertaining to or related in any way to the
services performed hereunder for the purpose of auditing and verifying the cost
of work or to determine the Company's rights or the Contractor's obligations
hereunder or, to ascertain any facts relative to any claim against the
Contractor which has or may become a charge against the Company or the work, or
for any other reasonable purpose. Said Company representatives shall have the
right to reproduce the aforesaid articles, as such representatives deem
necessary or appropriate. The Company shall have sufficient audit access to the
Contractor's costs in the fixed rate area to satisfy themselves that all
services that are supposed to be included in set fixed rates are so included.
ARTICLE 8. Term AND TERMINATION
8.01 General PROVISIONS. The Contract between the parties shall remain in
effect until the termination date specified in the General Service Agreement or
the earlier occurrence of one of the following: (a) mutual agreement in writing
that the Contract should be terminated; (b) termination by either party on
thirty days written notice to the other; (c) termination by Transmission in
accordance with Section 8.02 of this Contract; or (d) the expiration or
termination of or Contractor's failure to renew any insurance coverage required
hereunder. Transmission shall not be liable to Contractor for Services performed
after an event of termination.
Edition April, 1995 10 MS-48157-GN
8.02 TERMINATION BY TRANSMISSION. If (a) Contractor fails to perform the
services covered by this Contract in an efficient, workmanlike, skillful and
careful manner or to the complete satisfaction of Transmission, or (b) the work
is not proceeding with such speed as in the reasonable judgment of Transmission
is necessary to complete the same within the time herein provided, or (c)
Contractor fails to comply with any of the requirements of this Contract,
Transmission may give written notice to Contractor stating the particulars in
which Contractor is failing to comply with the terms of this Contract. If
Contractor does not remedy such failure or proceed with due diligence as is
reasonably required by Transmission within three (3) days after such notice is
given, then Transmission shall have the right to terminate this Contract
regardless of its state of completion and without prejudice to any claim
Transmission may have. Additionally, Transmission may award a contract as to
such work that remains to be done hereunder to another Contractor or perform all
or any part of said services. In the event Transmission takes over the work or
awards all or any part of it to another Contractor, and the total cost of
performing the work provided for herein is more than the aggregate amount to be
paid Contractor herein, then Contractor shall pay to Transmission, upon demand,
the amount of such excess.
ARTICLE 9. MISCELLANEOUS
9.01 INDEPENDENT CONTRACTOR. Contractor is an independent contractor.
Nothing in the Contract or the relation of the parties is to be construed as
creating any other type of relationship.
9.02 Notice. Whenever any provision of the Contract requires or allows the
giving of written notice, such notice will be properly given if delivered
personally to the party, sent by telecopy or telefax to the party, or mailed to
the party given at the address first set forth above or to such other address as
the party provides pursuant to written notice in compliance with this section.
The written notice will be deemed to have been received when delivered
personally, the day after the telecopy or telefax is sent, or the third day
after mailing.
9.03 Effect OF WAIVERS. No waiver by either party of one or more defaults
by the other party in the performance of any provisions of the Contract will
operate or be construed as a waiver of any further defaults, whether of a like
or of a different character.
9.04 ASSIGNMENT AND DELEGATION. The rights of Contractor may not be
assigned and the duties of Contractor may not be delegated without the prior
written consent of Transmission; provided, however, that any such delegation
shall not operate to relieve Contractor of its responsibilities hereunder, and
notwithstanding any such delegation Contractor shall remain obligated to
Transmission with respect to such undertakings.
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9.05 NONDISCRIMINATORY EMPLOYMENT PRACTICES. (a) Contractor certifies that,
during the performance of this Contract, Contractor's employment practices shall
comply with all Federal, state and local laws and regulations regarding
discrimination because of race, color, religion, national origin, sex, age,
handicap, or veteran status.
(b) The following Federal laws are incorporated herein, if
applicable: the Equal Opportunity Clause required under Executive Order 11246
and implemented by Title 41 C.F.R. ss. 60-1.4; the Affirmative Action Clause
required under the Vietnam Era Veterans Readjustment Act of 1974 and implemented
by Title 41 C.F.R. ss. 60-250.4; the Affirmative Action Clause required under
the Rehabilitation Act of 1973 and implemented by Title 41 C.F.R. ss. 60741.4;
and the Utilization of Minority Business Enterprises Clause required under
Executive Order 11458 and implemented by Federal Procurement Regulations Subpart
1- 1.13.
9.06 RIGHTS AND REMEDIES CUMULATIVE. All rights and remedies of the
parties hereunder are cumulative.
9.07 Setoff. Any amounts paid by Transmission which Contractor is
obligated to pay pursuant to this Contract or otherwise, will be reimbursed to
Transmission by Contractor (together with (a) Transmission's attorney fees
incurred as a result of a default or other fault of contractor, and (b) annual
interest at 15% if this rate is allowed by law, otherwise at the highest rate
allowed by law), and, if not reimbursed, may be deducted (with attorney fees and
interest as above provided) by Transmission from any amounts then or thereafter
due Contractor. These rights of reimbursement and deduction are in addition to
Transmission's right to indemnity pursuant to Article 5.
9.08 HEADINGS. The headings on the sections of the Contract are for the
convenience of the parties and are not to be used in interpreting or construing
the Contract.
9.09 Choice of Law. The validity and construction of the Contract and the
rights and duties of the parties will be determined by the laws of West Virginia
without reference to its choice of law rules.
9.10 SEVERABILITY. If any Section or provision of the Contract or the
application thereof is held invalid, unlawful, or unenforceable in any respect,
such invalidity, unlawfulness, or unenforceability shall not be deemed or
construed to affect other Sections or provisions of the Contract. To this end,
the Sections and provisions of the Contract are agreed to be severable; and as a
rule of construction, the Contract shall be construed and applied as if such
invalid, unlawful, or unenforceable Section, provision, or application had never
been contained in the Contract.
9.11 Entire AGREEMENT. The Contract is the sole evidence of the agreement
between the parties. There are no representations, agreements, or
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understandings except as stated in the Contract. No modification, alteration, or
amendment of the Contract will be binding on Transmission unless in writing and
signed by Transmission's Authorized Representative.
9.12 CONFIDENTIALITY. All information and/or materials provided to or
discovered by Contractor, its agents, employees, or sub-contractors, including,
but not limited to, drawings, sketches, architectural ideas, work product,
blueprints, job specifications, and data will be considered propriety
information and materials intended for Transmission's use only. Reproduction or
use of these materials and/or information for the purpose of sharing said
materials and/or information with any agencies, competitors, other persons or
entities is expressly forbidden. The provided information and/or materials will
remain property of Transmission and is not intended for external use,
distribution or publication. Contractor shall be obligated to return all
provided information and/or materials to Transmission upon completion of each
project and is liable for damages as a result of improper use, distribution or
publication of such information and/or materials.
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