Exhibit 10.09
Agreement to supply electrical items
333
Electrical Items for Power Plant Subcontract
Agreement made this 10th day of June, 1998, ("Agreement") by and between
Commsource international, Inc., a corporation formed under the laws of the State
of Illinois ("Contractor") and Xxxxxxx Power Systems, a corporation formed under
the laws of
("Subcontractor").
Whereas Contractor is supplying items pursuant to a contract between
Telesource CNMI, Inc. ("Owner") and Commonwealth Utilities Corporation for the
construction of a 10 MegaWatt Diesel Power Plant (the "Project") on the island
of Tinian in the Commonwealth of the Northern Mariana Islands, which contract
includes the Electrical Items for Power Plant to be done under and pursuant to
this subcontract agreement (the "Work"); and
Whereas Subcontractor desires and is willing to furnish all necessary
materials, equipment and labor to provide the Electrical Items for Power Plant
component of the Project;
Now therefore, in consideration of the mutual promises and covenants
expressed in this agreement, the Contractor and Subcontractor agree as follows:
1) Scope of the Work.
Subcontractor shall furnish all necessary labor, material, supervision and
all other services as may be required to perform all of the necessary and
required design, engineering, manufacturing, assembly, testing and fabrication
as may be required to provide the buyer with Electrical Items for Power Plant to
the satisfaction of the Contractor and the Owner and in strict accordance with
the specifications, drawings and documents enumerated in the attached Exhibit "A
", which specifications, drawings and documents are incorporated herein by
reference and hereby become an integral part of this Agreement. In performance
of this Agreement, Subcontractor shall adhere to the requirements and
specifications which relate to the equipment and services provided pursuant to
this Agreement. In the event of any inconsistency between the provisions of the
Exhibits and this Agreement, the provisions of this Agreement shall control.
In particular, but in no way limiting Subcontractor's duties as set forth
in this Section 1, Subcontractor shall provide the services as set forth as
follows:
1.1) Supply and Installation Of Machinery and Equipment.
Subcontractor shall supply, install, commission, conduct the proof of
performance and hand over to Owner all items as enumerated in the attached
Exhibit "B".
1.1.1) [Intentionally Deleted]
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1.1.2) Goods are to be shipped F.O.B. Origin (Edelstein, Illinois).
Risk of loss shall be Subcontractor's responsibility
until delivery to applicable F.O.B. point.
1.1.3) Subcontractor understands that the maximum lifting capacity of any
of the cranes on the ship or on the island of Tinian is forty thousand
(40,000) pounds. No single lift can exceed said weight. Said weight is
inclusive of all equipment, packing, and crating material and the
weight of the container.
1.2) Shop Drawings, Submittals, Support Manuals and Certifications.
Subcontractor shall furnish the required drawings, submittals and
manuals to Contractor for approval prior to use in connection with the
Project. At the time of each submission, the Subcontractor shall give the
Project Manager specific written notice of each variation that the drawing,
sample, manuals, or certification may have from the requirements of this
Agreement. No review or approval of any drawing, submittal or manual shall
constitute acceptance of Work not in accordance with this Agreement, nor
shall it serve to release Subcontractor of its obligation to perform the
Work in accordance with this Agreement.
1.2.1) Shop Drawings.
Subcontractor shall prepare and submit to Contractor six (6) copies of
all working drawings, prints, sepias and mylars (including revisions,
addenda and modifications) to be used in connection with the Work, along
with one (1) ACAD (revision No. 14) computer diskette for each drawing. The
data shown on the drawings shall be complete with respect to quantities,
dimensions, specified performance and design criteria, materials and
similar data to enable meaningful review by the Project Manager.
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1.2.2) Submittals.
Subcontractor shall prepare and submit six (6) representative samples
of all proposed materials and equipment to be furnished by Subcontractor
for use in the Work. Detailed specifications of proposed materials and
equipment may be submitted in lieu of actual samples only with Contractor's
prior written consent. Each submittal shall be clearly identified as to
material, manufacturer, supplier, trade name, model or catalog designation,
reference standards and all other data pertinent to the use for which it is
intended.
1.2.3) Support Manuals. Subcontractors shall prepare and submit six (6)
copies (with the equipment to the port of destination) of all owner's
manuals, installation manuals, illustrated parts breakdowns and operations,
maintenance and repair manuals, spare parts schedules, catalogs, and any
other data as may be requested by Contractor in regard to the operation of
the Work. Catalogs shall indicate the proper method of ordering spare parts
at a later date with contact address.
1.2.4) Test and Compliance Certificates. Subcontractors shall prepare and
submit six (6) copies of all manufacturer's test certificates and
certificates of compliance as required for Items enumerated in the attached
Exhibit "B". Such certificates shall be in a form acceptable to Contractor,
shall indicate that the materials and/or equipment conform to or exceed the
requirements as specified by this Agreement, and shall be accompanied by
supporting reference data, affidavits, and additional certifications as
appropriate.
1.2.5) Packing Lists and Bills of Lading
Subcontractor shall provide three (3) original sets of the Packing
List, one (1) packed with the shipment and two (2) to Contractor.
Subcontractor shall provide three (3) original sets of Bills Of Lading to
Contractor.
1.3) As-Built Drawings.
Subcontractor shall maintain one (1) set of all drawings,
specifications, addenda, written amendments, Change Orders and written
interpretations, clarifications and annotations to show all changes made
during construction. Such drawings and documents shall be maintained and
updated as appropriate to reflect the current "as built" conditions of the
Work. Upon completion of the Work, these drawings and documents shall
reflect the final "as built" condition of the Work and six (6) sets shall
be delivered to the Contractor.
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1.4) Quality Assurance and Quality Control Program.
Within thirty (30) days after the execution of this Agreement,
Subcontractor shall prepare and deliver to Contractor, a quality assurance
and quality control program inclusive of all phases of the Work.
1.5) Insurance and Indemnification for Loss or Injury.
Subcontractor shall maintain such Public Liability, Property Damage,
and Employee's Liability and Compensation insurance as will protect
Contractor from all risks of loss which may result in any way from any act
or omission of Subcontractor, its agent, employees, or subcontractors,
including any injury to person or property during the progress of the Work,
and from any claims under any applicable Workmen's Compensation and
Occupational Disease Acts. Coverage shall apply to the indemnity clause in
Paragraph 6 below. Prior to commencing performance of any work or site
mobilization, Subcontractor shall furnish Contractor with Certificates of
Insurance as evidence of the above required insurance. Contractor and Owner
shall be named an additional insured on such coverage.2) Commencement and
Progress of the Work.
2.1) Commencement of the Work.
Subcontractor shall commence performance of the Work upon execution of
this Agreement and shall proceed in accordance with the Delivery and
Completion Schedule, as may be adjusted from time to time in accordance
with Section 2.2 and Section 2.3 of this Agreement.
2.2) Delivery and Completion Schedule; Monthly Status Reports.
2.2.1) Within one (1) week after the execution of this Agreement,
Subcontractor shall prepare and deliver to Contractor a comprehensive
delivery and completion schedule (the "Delivery and Completion
Schedule") in the form of a scheduled bar chart showing expected
delivery dates of materials and all relevant activities. Each of
Subcontractor's activities shall be allocated a price, and the sum of
these prices shall equal the total contract price.
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2.2.2) The Delivery and Completion Schedule shall adhere and conform in all
respects to the Critical Path Method Project Plan (the "CPM") attached
hereto as Exhibit "C", including all future updates and amendments
thereto. Subcontractor shall be responsible for adherence to
Subcontractor's Delivery and Completion Schedule, the CPM and the
instructions of Contractor's Project Manager. Subcontractor shall
prepare and submit a written project status report to Contractor on the
first day of each month, detailing Subcontractor's performance under
the Delivery and Completion Schedule and the CPM.
2.2.3) Contractor reserves the right to make any adjustment to
Subcontractor's Delivery and Completion Schedule to insure suitability
with Site conditions and conformance with the CPM.
2.3) Progress and Completion.
2.3.1) All time limits stated in this Agreement, including those stated in
the associated CPM and the Delivery and Completion Schedule, are of the
essence of this Agreement.
2.3.2) Contractor may, at any time, by written order to Subcontractor,
require the Subcontractor to stop all or any part of the Work for a
period of up to 90 days after the order is given. Upon receipt of the
order, Subcontractor shall immediately comply with its terms and take
all reasonable steps to minimize the incurrence of costs allocable to
the Work covered by the order. If a stop-work order is subsequently
canceled or expires, Subcontractor shall resume the Work and if
necessary shall be entitled to an equitable adjustment in the time of
performance or Contract Price or both, upon application therefore under
Section 2.3 and/or Section 4 of this Agreement, as the case may be.
2.4) Responsibility for Progress and Completion.
2.4.1) Subcontractor shall at all times furnish such employees, materials,
facilities and equipment and shall work such hours, including extra
shifts and overtime as necessary, to ensure the prosecution and
completion of the Work in accordance with the CPM and the Delivery and
Completion Schedule.
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2.4.2) If the Work is not being performed in accordance with the
Subcontractor's Delivery and Completion Schedule, or if it becomes
apparent to the Contractor that the Work shall not be completed within
the scheduled time, Contractor shall notify Subcontractor in writing of
such nonconformity, at which time Subcontractor shall immediately take
all necessary actions to improve its progress, including the following,
at no additional cost:
(a) Increase the number of employees in such crafts as shall
regain the lost schedule progress;
(b) Increase the number of working hours per shift, shifts per
working day, working days per week, and the amount of
equipment or any combination thereof to regain lost schedule
progress; and
(c) Expediting shipments of materials and supplies, including
shipping by a method other than that originally anticipated by
this Agreement.
2.4.3) In addition, Contractor may require Subcontractor to prepare and
submit a recovery schedule in a form acceptable to Contractor,
demonstrating Subcontractor's proposed plan to regain lost schedule
progress and to ensure completion of the Work within the time required
by the CPM. Subcontractor agrees to bear all additional charges
incurred in executing the recovery schedule at no additional cost to
Contractor.
2.4.4) Time is of the essence of this contract. Inasmuch as a delay in the
complete and total delivery of items (in condition ready to use at the
job site) will cause serious and substantial damage to Contractor, and
because it will be difficult if not impossible to prove the amount of
such damage, Subcontractor agrees that in the case of a delay
attributable to Subcontractor in the complete and total delivery of
items (in condition ready to use at the job site), Subcontractor will
pay Contractor one-quarter of one percent of the total value of this
order per day of such delay as liquidated damages, and it is agreed
that such sums shall, without proof, be deemed to represent minimum
damages actually sustained by Contractor by reason of such delay,
provided, however, that such provision in reference to liquidated
damages is intended to be, and shall be cumulative, and shall be in
addition to every other remedy now or hereafter existing at law or in
equity, or by statute.
2.4.5) Subcontractor will not be liable for damages or delays due to causes
beyond its reasonable control, provided Subcontractor shall have
notified Contractor and submitted a Change Order Request pursuant to
Section 2.3 of this Agreement.
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3) Contract Price and Application For Payment.
3.1) Contract Price.
Contractor agrees to pay Subcontractor the lump sum of One Million Six
Hundred Twelve Thousand Eight Hundred Ninety Two Dollars and Eighty Four
Cents U.S. (US$ 1,612,892.84), as detailed in Exhibit B, for
Subcontractor's performance of all the Work (the "Contract Price"). No
additional claims or charges will be entertained except as specifically
provided by this Agreement. This sum includes a two percent (2%) discount
offered because of wire transfer of funds and because no provision for
retention of funds has been made.
3.2) Application for Payment.
3.2.1) Materials.
3.2.1.1) Approved Invoice.
Upon the furnished materials, equipment and
supplies being ready to ship from the continental
United States, Subcontractor shall present Contractor
with an application for payment accompanied by the
applicable invoices, bills of sale, or other
documents evidencing receipt of the materials.
Contractor's Project Manager shall review the
application and supporting documents, and where
appropriate, the materials themselves, and shall
either approve the application for payment or deny
the application for payment stating the reason
therefore. Subcontractor warrants and guarantees that
title to all Work, materials and equipment covered by
any application for payment, whether incorporated in
the Project or not, shall pass to the Owner free and
clear of all liens, charges, security interests and
encumbrances no later than at the time of payment. In
addition, the Subcontractor's final invoice warrants
that he has obtained a waiver of liens for all work
performed under the contract.
3.2.1.2) Time of Payment.
Contractor shall pay Subcontractor one
hundred percent (100%) of the Contract Price within
thirty (30) days of the Subcontractor's application
for payment certifying that the Equipment is ready to
ship from the continental United States.
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3.3) Place of Payments.
Payments shall be made via Wire Transfer to:
First Security Bank of Utah
Main at 0xx Xxxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx
Attention: Xxxxx Xxxxxx
Bank; Routing #: 000000000
Account #: 51 00050 10
3.4) Intentionally Deleted.
.3.5) Payment Withheld.
Upon the occurrence of any of the following events of default,
the Project Manager may deny Subcontractor's application for payment
and withhold payment until such event of default is cured:
(a) Failure to remedy a defect in the Work;
(b) Failure of Subcontractor to pay lower tier contractors or vendors;
(c) Failure to adhere to the Delivery and Completion Schedule or the
CPM;
(d) Failure to perform the Work in accordance with this Agreement;
(e) Project Manager's reasonable determination that liens or claims
against the Subcontractor and Subcontractor furnished materials
have been filed or shall be asserted;
(f) Project Manager's reasonable determination that the Work will not be
completed within the Contract Price.
3.6) Set-Off.
Contractor shall be entitled at all times to set-off any amount owing
at any time from Subcontractor to Contractor or any of its affiliated
companies against any amount payable at any time by Contractor in
connection with this order.
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4) Changes In the Work.
Upon the instructions of the Owner, Contractor may from time to time order
additions, deletions, deductions or revisions in the Work, including adjustments
due to performance of any part of the Work by one other than the Subcontractor.
4.1) Change Orders.
A Change Order is a written instrument, issued after the execution of
this Agreement, signed by the Contractor and the Subcontractor stating
their agreement upon a change and any adjustment in the Work, the price
therefor and the Subcontractors Delivery and Completion Schedule.
Adjustments which do not involve a change in the Contract Price and which
are consistent with the overall intent of this Agreement shall be promptly
performed by Subcontractor without additional claim or charge.
4.2) Change Order Request.
4.2.1) Within ten (10) days of the receipt of Contractor's proposed change
in the Work, the Subcontractor shall submit to the Contractor a request
for a Change Order, which shall detail information concerning the cost
and time adjustments, if any, necessary to perform the proposed change
(Change Order Request). When approved by the Owner, the Contractor
shall authorize the adjustment to the Work contained in the Change
Order Request by issuing a Change Order. Such Change Order shall
thereupon be incorporated into the Subcontractors Development and
Completion Schedule.
4.3) Valuation of Change.
The value of any work included in any Change Order or Change Order
Request, which increases or decreases the Contract Price shall be
determined by application of the unit prices to quantities of the items
involved in accordance with the Unit Price Breakdown.
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5) Subcontractor's Warranties; Non-Conforming Work.
5.1) Warranty.
In addition to any warranties provided by law, Subcontractor warrants that
the equipment and services provided pursuant to this Agreement shall be
free from defects in material and workmanship. This warranty shall remain
in full force and effect for a period of one (1) year from the date of
final written acceptance of the Project by Owner.
5.2) Non-Conforming Work.
If any of the materials or services provided by Subcontractor are found
to be defective in workmanship or otherwise not in conformity with the
requirements of this Agreement, Contractor, in addition to any other rights
which it may have under warranties or otherwise, shall have the right to
reject and return such goods or services at Subcontractor's expense
(including Subcontractor's handling charges), or require that such articles
or materials be corrected or replaced promptly with satisfactory material
or workmanship. Such equipment and materials are not to be replaced,
however, without suitable written authorization from Contractor. If
Contractor so rejects the goods or if Subcontractor, when requested by
Contractor, fails to proceed promptly with the replacement or correction
thereof, Contractor either may terminate this order for default or may
charge Subcontractor the cost of damages occasioned Contractor thereby.
Title to all rejected goods shall pass to Subcontractor upon Contractor's
notification to Subcontractor of rejection and all such goods held by
Contractor after such notification shall be held at Subcontractor's risk.
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6) Indemnification.
6.1) Indemnification for Loss.
If Subcontractor causes damage to the Work or property of the Owner,
the Contractor, or any other subcontractor, or if any claim arises out of
Subcontractor's performance of the Work, Subcontractor shall act promptly
to remedy such damage and/or attempt to settle any such claim.
Subcontractor shall have the right to timely repair or replace any
defective items before any field charges occur. Subcontractor shall
indemnify Contractor against all loss which may result in any way from any
act or omission of Subcontractor, its agent, employees, or subcontractors,
including any injury to person or property during the progress of such
work, except to the extent that any such injury is due solely and directly
to Contractor's or Owner's negligence as the case may be.
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6.2) Patent Indemnity.
6.2.1) Subcontractor shall handle all claims and defend any suit or
proceeding brought against Contractor or its customers (which term
throughout this order shall include without limitation the Owner,
Contractor's lessees, bailees, transferees and assigns) so far as based
on any claim that the manufacture or furnishing of goods under this
order, or the use or sale of such goods constitutes infringement of any
patent of any country. If notified promptly in writing and giving
information, assistance and such authority as is afforded by applicable
laws, rules, or regulations for the handling or defense of such claim,
suit or proceeding (all at Subcontractor's expense); and Subcontractor
shall indemnify and save Contractor and its customers harmless from and
against any expense or liability, including costs and damages arising
out of such claim, suit or proceeding. In case said goods are enjoined,
Subcontractor shall, at its own expense and option, procure for
Contractor and its customers the right to continue using said goods, or
modify them so they become non-infringing, or with the written approval
of Contractor, remove said goods and refund the purchase price and the
transportation and installation costs thereof. The foregoing patent
indemnity and warranty obligations shall be inapplicable: (a) where the
alleged infringement results from detail designs supplied by
Contractor, unless goods embodying such designs are normally sold or
advertised for sale to others by Subcontractor, or (b) to the extent
that a suit based on said infringement claim may be maintained only
against the U.S. Government and Contractor has not indemnified the U.S.
Government.
6.2.2) The above patent warranty and indemnity obligations are in lieu of
all other patent warranties and indemnities whatsoever, whether oral,
written, express or implied.
7) Title and Risk of Loss.
7.1) Drawings and Specifications.
7.1.1)The Subcontractor has been furnished the documents set forth in
Exhibit "A". Additional copies shall be furnished upon request.
7.1.2) All specifications, drawings, technical information and data
furnished by Contractor to Subcontractor hereunder shall remain the
property of the Contractor. None shall be copied, duplicated in any
manner, nor shall extract be taken therefrom for a purpose of use
unrelated to the Work without Contractor's advance written consent.
Such documents shall be used only in the manufacture and production of
supplies for Contractor and shall be returned to Contractor at
Contractor's request.
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8) Proprietary Information.
Any knowledge or information concerning Subcontractor's product, methods,
or manufacturing processes which Subcontractor may disclose to Contractor
incident to the provision of the Work shall, unless otherwise specifically
agreed in writing, be deemed to have been disclosed as a part of the
consideration for this Agreement, and Subcontractor agrees not to assert any
claim (other than a claim for patent infringement) against Contractor by reason
of Contractor's use or alleged use thereof.
9) Termination.
9.1) Termination by Contractor for Cause.
9.1.1) Contractor may terminate this Agreement upon ten (10) days written
notice to Subcontractor upon the following events of Subcontractor
default:
(a) Subcontractor ceases to conduct its operations in the normal
course of business (including inability to meet its obligations as
they mature);
(b) A proceeding under the bankruptcy or insolvency laws is brought by
or against Subcontractor, or a receiver is appointed or applied
for;
(c) Subcontractor makes a general assignment for the benefit of
creditors;
(d) Subcontractor disregards the laws and regulations of any
government entity having jurisdiction over any activity performed
in connection with the Work or this Agreement;
(e) Subcontractor disregards the authority or instructions of the
Project Manager;
(f) Subcontractor persistently fails to perform the Work in accordance
with this Agreement, including but not limited to, failure to
adhere to the Delivery and Completion Schedule or the CPM, failure
to supply sufficiently skilled workers, and failure to provide
conforming equipment and materials; or
(g) Subcontractor otherwise materially breaches this Agreement.
9.1.2) Upon termination for cause pursuant to this Section 9.1 Contractor
shall be entitled to take immediate possession of the Work and all of
Subcontractor's tools, machinery and equipment at the Site or paid for
pursuant to this Agreement but stored elsewhere, without liability to
Subcontractor for trespass or conversion.
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9.1.3) Termination for cause pursuant to this Section 9.1 shall be without
liability to Contractor except for payment of amounts due for materials
and equipment previously delivered to the Site or previously completed
and subsequently delivered to the Site in accordance with the terms of
this Agreement; provided however that such amount shall not be due and
payable until completion of the Work by substitute performance and
shall be reduced by the following:
(a) Costs incurred by Contractor in the performance of the Work
terminated, including but not limited to preparatory expenses,
additional engineering and design professional costs,
consequential and incidental costs, and all additional expenses
incurred in acquiring or undertaking substitute performance; and
(b) Contractor's reasonable costs of termination and settlement,
including but not limited to accounting costs, legal fees and
arbitration expenses.
Nothing in this Agreement shall obligate Contractor to obtain the
lowest price for costs incurred or work performed pursuant to this
Section 9.1.3.
9.2) Termination by Contractor for Convenience.
9.2.1) Contractor may terminate this Agreement in whole or in part for its
own convenience by written notice at any time.
9.2.2) Termination for convenience pursuant to this Section 9.2 shall be
without liability to Contractor except for payment of amounts due
pursuant to Sections 9.3.2 and 9.3.3 of this Agreement.
9.3) Termination by Subcontractor for Cause.
9.3.1) Subcontractor may terminate this Agreement upon ten (10) days
written notice to Contractor upon the following events of Contractor
default:
(a) Contractor ceases to conduct its operations in the normal course
of business (including inability to meet its obligations as they
mature);
(b) A proceeding under the bankruptcy or insolvency laws is brought by
or against Contractor, or a receiver is appointed or applied for;
(c) Contractor makes a general assignment for the benefit of creditors;
(d) Contractor disregards the laws and regulations of any government
entity having jurisdiction over this Agreement;
(e) Contractor fails to pay Subcontractor undisputed amounts finally
determined to be due Subcontractor pursuant to this Agreement
within sixty (60) days of the due date; or
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(f) Contractor otherwise materially breaches this Agreement.
9.3.2) Upon Subcontractor's termination for cause pursuant to this Section
9.3 Subcontractor shall be entitled to payment for all Work performed,
and for all materials and equipment previously delivered to the Site or
previously completed and subsequently delivered to the Site in
accordance with the terms of this Agreement.
9.3.3) In addition to payment pursuant to Section 9.3.2, Subcontractor
shall within ten (10) days of the date of the notice of termination
present Contractor with a claim for costs arising out of such
termination which claim shall be subject to negotiation between
Contractor and Subcontractor. The negotiated settlement of
Subcontractor's claim shall be reduced to writing by Contractor and
signed by Subcontractor prior to payment of settlement costs. Costs
claimed pursuant to this Section 9.3.3 shall be restricted to actual
costs incurred and commitments made on account of termination.
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10) On-Site Representatives.
10.1) Contractor's Project Manager.
10.1.1) Contractor's Project Manager shall be the primary representative of
Contractor and shall exercise such authority as is specified in this
Agreement or is delegated to him by Contractor. The general duties of
the Project Manager shall be, inter alia, to act on behalf of
contractor as follows:
(a) to review, comment, audit and monitor the design, construction,
commissioning and performance of the Work;
(b) to inspect, examine, and witness the materials, equipment, testing
and workmanship used or carried out in connection with the Work;
and
(c) to certify applications for payment and to report to Contractor on
the progress of the Work and to report whether the Work is being
carried out in accordance with this Agreement.
10.1.2) The Project Manager shall also carry out the following duties:
(a) other duties that Contractor designates are to be performed by the
Project Manager; and
(b) any other duties which are specified in this Agreement.
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10.2) Designation of Representatives.
10.2.1) The Contractor's Project Manager shall be:
Name: Xxxxx Xxxxx Xxxxxx
Address: Telesource CNMI, Inc.
Horiguchi Building, 5th Floor
PPP402 Box 10000
Saipan, MP 96950
Commonwealth of the Northern Mariana Islands
Saipan Phone:(000) 000-0000, (000) 000-0000
Saipan Fax: (000) 000-0000
Tinian Phone:(000) 000-0000, (000) 000-0000, (000) 000-0000
Tinian Fax: (000) 000-0000
Email: xxx@xxxx.xxx.xx
10.2.2) The Subcontractor's Site Representative shall be:
Name: Xxx Xxxxx
Address: Xxxxxxx Power Systems
0000 Xxxx 0000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
10.3) Site Work by Subcontractor
10.3.1) Owner will provide room and board for Subcontractor employees
at site. The quality shall be equal to that provided for Owner
management at Site
10.3.2) Owner will provide skilled workers to assist Subcontractor
employees when at Site.
11) Notices.
11.1)All notices, requests, directions, or other communications required by this
Agreement, required or permitted, shall be in writing and shall be
considered properly given when:
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(a) delivered in person;
(b) sent via confirmed fax;
(c) sent certified mail confirmed by a signed return receipt; or
(d) delivered to an express courier, correctly addressed and postage
prepaid.
11.2)Notices or other communications given in accordance with this Section 11
shall be deemed effective on the date delivered or fax confirmed in the
case of Sections 11(a) and (b) above; or upon actual receipt in the case of
Sections 11(c) and (d).
11.3) Notice shall be given to Contractor as follows:
Name: Commsource International, Inc.
Attn: Xxxxx Xxxxx
Address: 000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
11.4) Notice shall be given to Subcontractor as follows:
Name: Xxx Xxxxx
Address: Xxxxxxx Power Systems
0000 Xxxx 0000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
12) Compliance With Laws.
Subcontractor agrees to comply with all federal, state and local laws,
standards, rules regulations and directions (hereafter collectively "Laws")
applicable to and in effect at the time of the execution of this Agreement.
Subcontractor's failure to comply with such Laws will be considered a material
breach of this Agreement and may be grounds for termination by Contractor.
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In particular, but in no way limiting Subcontractor's duties as set forth
in this Section 12, Subcontractor shall comply with the following:
12.1) Compliance with Rules, Regulations and Customs of the CNMI.
Subcontractor shall be responsible for complying with all local laws,
including but not limited to compliance with the rules, regulations and
customs of the CNMI. In particular, Subcontractor agrees to comply with all
immigration and labor laws, licensing and permit requirements, and customs
and import rules.
12.2) Xxxxx Tree Snake Prevention Plan.
Subcontractor agrees to comply with requirements of the Xxxxx Tree
Snake Prevention Plan implemented by Contractor in accordance with the
Commonwealth Department of Natural Resources Regulations To Prevent
Introduction Of The Xxxxx Tree Snake Into The CNMI (Comm. Reg. Vol. 15
No.8). In particular Subcontractor agrees to be responsible for inspecting
all equipment and materials at the port of entry on the island of Tinian,
including all equipment and materials from the island of Guam and Saipan.
Inspections are to be done at the port, whether unloading or not, and at
the Site if unloading occurs there.
13) Assignment.
Subcontractor shall not assign this Agreement in whole or in part, nor any
interest herein nor any payment due or to become due hereunder, to any Person,
without the prior written consent of Contractor, which consent shall not be
unreasonably withheld or delayed. Consent may be withheld if any assignee
proposed is not in the opinion of Contractor reasonably able to fulfill the
terms and obligations of this Agreement.
14) Arbitration.
14.1) In General.
Claims, disputes or other matters in question between the parties to
this Agreement shall first be subject to mediation before arbitration. A
demand for mediation shall be made within a reasonable time after the
dispute or claim has arisen.
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14.2) Mediation.
Any mediation shall be held in accordance with the Construction
Industry Mediation Rules of the American Arbitration Association currently
in effect, unless the parties mutually agree otherwise. The mediation shall
take place at a mutually convenient location in Illinois. Demand for
mediation shall be filed in writing with the other party to this Agreement
and with the American Arbitration Association. In no event shall the demand
for mediation be made after the date when institution of legal or equitable
proceedings based upon such claim, dispute or other matter in question
would be barred by the applicable statute of limitations.
14.3) Arbitration.
Any dispute or difference arising out of, or in connection with, this
Agreement which cannot be amicably settled between the parties by mediation
shall be finally settled under the Rules of Construction Arbitration of the
American Arbitration Association. The arbitration shall take place at a
mutually convenient location in Illinois. The resulting arbitral decision
shall be final and binding on the parties. Judgment upon any award rendered
by the arbitrators may be entered in any court having jurisdiction thereof.
The prevailing party in any arbitration shall be entitled to recover from
the other party all attorneys' fees, expenses and other costs incurred in
asserting or defending any claim arising under or related to this
Agreement.
15) General Provisions.
15.1) Severability of Provisions.
15.1.1) In the event that any provision of this Agreement, or the
application thereof, is held by any court of competent jurisdiction to
be illegal or unenforceable, the parties shall attempt in good faith to
agree upon an equitable adjustment to this Agreement in order to
overcome to the extent possible the effect of such illegality or
unenforceability.
15.1.2) The provisions of this Agreement are intended to be performed in
accordance with, and only to the extent permitted by, all applicable
requirements of law.
15.1.3) If any provision of this Agreement or the application thereof to
any Persons or circumstance shall, for any reason and to any extent, be
invalid or unenforceable, neither the remainder of the Agreement nor
the application of such provision to other Person or circumstances or
other instruments referred to in the Agreement shall be affected
thereby but, rather, the same shall be enforced to the greatest extent
permitted by law.
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15.2) Entire Agreement.
This Agreement, including all schedules, exhibits, attachments, and
drawings referenced herein, represents the entire understanding between the
parties in relation to the subject matter hereof and supersedes any and all
previous agreements or arrangements between the parties in respect of the
Work (whether oral or written), including without limitation all letters of
intent and clarifications submitted in response to requests for proposals
or otherwise.
15.3) Counterparts.
This Agreement may be executed in any number of counterparts, or by use
of counterpart or faxed counterpart signature pages, each of which shall be
an original, but all of which together shall constitute but one instrument.
15.4) Applicable Law / Jurisdiction.
This Agreement shall be governed by and construed according to the Laws
of the State of Illinois excluding any conflict of laws provisions which
would result in the application of the Laws of another jurisdiction to the
interpretation of this Agreement. The Parties agree to submit to
Jurisdiction in the State of Illinois.
15.5) Successors and Assigns.
All of the terms of this Agreement shall apply to, be binding upon and
inure to the benefit of the parties hereto, their respective successors,
permitted assigns and all other Persons claiming by, through or under them.
15.6) No Waiver.
Any failure at any time by either party to enforce any provision of
this Agreement shall not constitute a waiver of such provision or prejudice
the right of either party to enforce such provision at any subsequent time.
354
15.7) No Third Party Beneficiary.
Except as otherwise provided elsewhere herein, this Agreement and all
rights hereunder are intended for the sole benefit of the parties hereto
and shall not imply or create any rights on the part of, or obligations to,
any other entity or individual not a party to this Agreement.
15.8) Publications.
Subcontractor agrees that no acknowledgment or other information concerning
this Agreement and the supplies or services provided hereunder will be made
public by Subcontractor without the prior written agreement of Contractor.
IN WITNESS WHEREOF, we have hereunto set our hands as of this 10th day of
June, 1998.
Contractor Subcontractor
Commsource International, Inc. Xxxxxxx Power Systems
Name: Xxxxxxx X. Xxxxxxxxxx, Name:_______________________,
Signed:______________________, Signed:______________________,
Its: General Counsel Its: ______________________ Title
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JPK:Comm:TPower:SubK November 24, 1999 17:21 PM
Schedule of Exhibits
Exhibit "A" Plans, Drawings, Specifications and Design Documents
Exhibit "B" Items Included In The Scope Of Work
Exhibit "C" Critical Path Method Project Plan
356
Plans, Drawings, Specifications and Design Documents Exhibit "A"
The following engineering specifications and documents are attached hereto
and are incorporated herein by reference and hereby become an integral part of
this Agreement:
Revised Quotation from Xxxxxxx Power Systems ("Xxxxxxx") to SHBC dated April 23,
1998.
"CUC Tinian D/G Spare Parts," Excel file prepared by Xxxxxxx Power Systems,
dated 5/6/98 and 4/30/98.
"Spare Parts For CUC Tinian; 400KW, 208 Volt, 60 Hz, STANDBY GENERATOR", Excel
file prepared by Xxxxxxx, undated.
"Spare Parts For CUC Tinian", Excel file prepared by Xxxxxxx, dated 5/6/98 and
4/30/98.
"Spare Parts For CUC Tinian; Medium Voltage Switchgear," undated Excel file
prepared by Xxxxxxx.
357
Purchase Order (Items Included In The Scope Of Work) Exhibit "B"
[See Attached Purchase Order 3247]
358
Critical Path Method Project Plan Exhibit "C"
[Attached]
359
Exhibit "A"
Supplemental Commercial Terms and Conditions of Purchase
Telesource Purchase Order No. 3374
Dated May 10, 1999
Supplemental Commercial Terms and Conditions of Purchase:
The following supplemental commercial terms and conditions of purchase are
attached hereto and are incorporated herein by reference and hereby become an
integral part of this purchase order:
1. All of the Terms and Conditions stated in Commsource International,
Inc.'s "Subcontract for Electrical Items Tinian CUC Power Plant" with
Xxxxxxx Power Systems dated June 10, 1998 are incorporated herein by
reference (modified to read Telesource International, Inc. instead of
Commsource International, Inc. as necessary) and hereby become an
integral part of Telesource International, Inc.'s Purchase Order 3374.
However, when the said subcontract contradicts any part of Purchase
Order 3374, the stated terms of Purchase Order 3374 will govern.
2. The maximum lifting capacity of any of the cranes on the ship or on the
island of Tinian is 52,000 pounds. No lift can exceed 52,000 pounds
(dependent on ship capability). No single lift can exceed said weight.
Said weight is inclusive of all equipment, packing, and crating material
and the weight of the container.
3. Please indicate discount terms for early payment:
-----------------------------------------------------------------------
--------------------------------------------------------------------.
4. Time is of the essence. Inasmuch as a delay in the complete and total
delivery of items (in condition ready to use at the job site) will cause
serious and substantial damage to Telesource International, Inc.
("Contractor"), and because it will be difficult if not impossible to
prove the amount of such damage, Xxxxxxx Power Supply ("Supplier")
agrees that in the case of a delay attributable to Supplier in the
complete and total delivery of items (in condition ready to use at the
job site), Supplier will pay Telesource one-quarter of one percent of
the total value of this order per day of such delay as liquidated
damages, and it is agreed that such sums shall, without proof, be deemed
to represent minimum damages actually sustained by Telesource by reason
of such delay, provided, however, that such provision in reference to
liquidated damages is intended to be, and shall be cumulative, and shall
be in addition to every other remedy now or hereafter existing at law
or in equity, or by statute.
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5. If Supplier causes damage to the Work or property of the Owner, the
Contractor, or any other subcontractor, or if any
claim arises out of Supplier's performance of the Work, Supplier shall
act promptly to remedy such damage and/or attempt to settle any such
claim. Supplier shall have the right to timely repair or replace any
defective items before any field charges occur. Supplier shall
indemnify Contractor against all loss which may result in any way from
any act or omission of Supplier, its agent, employees, or
subcontractors, except to the extent that any such injury is
due solely and directly to Contractor's or Owner's negligence as the
case may be. Supplier shall indemnify Contractor against any injury to
person or property during the progress of such work which may result in
any way from any act or omission of Supplier, its agent, employees, or
subcontractors, except to the extent that any such injury is due solely
and directly to Contractor's or Owner's negligence as the case may be.
6. As this Purchase Order is part of a larger project with a chain of
supply, third party claims by parties higher on the chain than
Constractor are allowed. However, third party claims by parties lower on
the chain (e.g., suppliers to Supplier) than Supplier are disallowed.
7. Due to the current difficulties with the SCADA system ordered in
Commsource International, Inc.'s "Subcontract for Electrical Items
Tinian CUC Power Plant" with Xxxxxxx Power Systems dated June 10, 1998
("Phase I SCADA system"), the following terms will apply to the SCADA
system ordered in this Purchase Order ("Phase II SCADA system"):
1. If the Phase I SCADA system is not signed off as fully
functional by Contractor prior to the Phase II SCADA scheduled
shipment, Contractor will not take delivery of the Phase II
SCADA and Contractor will not be responsible for paying its
associated line item ($260,180.00).
2. Further, if Contractor does not take delivery of the Phase II
SCADA as per M.1. above, not only will Contractor not be
responsible for paying its associated line item ($260,180.00),
there will also be a $250,000.00 deduction from the PO in our
favor. This will serve as liquidated damages that will allow
us to obtain a functional SCADA system elsewhere.
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