EX-10.7 11 dex107.htm CONSTRUCTION AGREEMENT IMPERIUM GRAYS HARBOR LLC CONSTRUCTION AGREEMENT COST PLUS FEE
Exhibit 10.7
IMPERIUM GRAYS HARBOR LLC
COST PLUS FEE
THIS AGREEMENT is made effective this 25th day of August, 2006, by and between Imperium Grays Harbor LLC, a Washington limited liability company (the “Owner”) and XX Xxxxx LLC, a Washington limited liability company (the “Contractor”). Each of the Owner and the Contractor may be referred to as a “Party” and collectively as the “Parties.”
1. The Work. The Contractor agrees to furnish and pay for all supervision, contract administration, services, labor, materials, equipment, tools, and other costs necessary to perform all requirements of the Contract Documents (as hereinafter defined) for the scope of work described on Exhibit A, a form of which is attached hereto, said Work (hereinafter defined) to performed as part of Owner’s biodiesel production facility located at Grays Harbor, Washington (the “Project”). The Contractor shall perform the Work in a workmanlike manner and in strict accordance with this Agreement. The Contractor shall be solely responsible for all construction means, methods, techniques, sequences, procedures, and safety precautions or programs, and for supervising, coordinating and performing all of the work. The Agreement contains the general terms and conditions which will govern all future specifications and scope intended to be issued to and performed by Contractor with respect to the Project. The parties acknowledge and agree that the Project involves several discrete “phases” of Work, and each phase to be performed by Contractor shall be incorporated into this Agreement by an amendment executed by both Parties. Each amendment shall be consecutively numbered (e.g. Exhibit A1, Exhibit A2, etc) and shall describe and detail: (i) the scope of work to be performed; (ii) the Cost of the Work (as defined in Section 5) and the Contractor’s Fee (as defined in Section 4) for the work to be performed; (iii) any attendant and requisite changes to the Project Schedule, Preliminary Schedule of Values, required completion dates, liquidated damages, or fees; and (iv) any other changes to the Agreement terms and conditions necessitated by the particular phase of work. All work described and incorporated on any Exhibit A hereto shall be collectively referred to as the “Work”.
1.1 The Contractor agrees that Xxxxx Xxxx shall serve as the Project Manager of the Contractor for the Work and, in that capacity, he shall be responsible for personally managing and administering the performance of the Contractor’s obligations under this Agreement, subject to his continuing employment by Contractor and the needs, staffing and skill requirements of the specific Project stage). The Project Superintendent of the Contractor for the Project will be mutually agreed upon by the Parties. Provided they remain in the employ of or otherwise affiliated with the Contractor, the persons referenced in this Section shall not be replaced without the prior written approval of the Owner. The Owner shall have the right to approve persons proposed as replacements for the Project Manager and Project Superintendent. The Owner’s approvals under this Section shall not unreasonably be withheld. Furthermore, the Contractor agrees that the primary members of the Contractor’s Project team will be available to perform the Work on throughout its duration.
1.2 The Contractor agrees that throughout the Project’s duration, the Contractor will have sufficient resources available to perform and complete the Work in accordance with the Project Schedule (as defined in Exhibit D). Furthermore, the Contractor represents and warrants that any labor or other agreement it may have with its employees or any entity representing them does not expire prior to the Guaranteed Completion Date (as hereinafter defined); provided however, that the collective bargaining agreements governing craft labor required for the performance of the Work do contain wage escalation provisions that may increase wage rates and, accordingly, the costs of labor over the course of the Project. Copies of these agreements will be made available to the Owner upon request.
This Agreement.
Scope of Work or “Work”, including without limitation the Drawings and Specifications listed therein, attached as Exhibit A.
Preliminary Schedule of Values, attached as Exhibit B, provided solely as a preliminary estimate of cash flow needs for the Owner
Form of Waivers and Releases, attached as Exhibit C.
Project Schedule, attached as Exhibit D.
Contractor Rates as of the effective date of Agreement: Craft Rates, Equipment Rates and Fabrication Rates, , attached as Exhibit E.
Form of Subcontractors’ Express Warranties, attached as Exhibit F.
In the event of conflicts or inconsistencies between or among the Contract Documents, this Agreement shall take precedence over the Scope of Work (including without limitation its Drawings and Specifications), the Drawings shall take precedence over the Specifications, and larger-scale detailed Drawings shall take precedence over smaller scale general Drawings. In the event of any remaining conflicts or inconsistencies between or among the Contract Documents, the Contractor shall perform the higher quality and the greater quantity of the Work except as directed in advance of the Work in writing by the Owner to do otherwise.
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5.1 Wages of construction workers directly employed by the Contractor to perform the construction of the Work at the site or in Contractor’s fabrication facilities.
5.2 Wages of construction workers directly employed by the Contractor to perform the construction of the Work at locations other than the site, provided that the nature and scope of such off-site Work is approved in writing in advance by the Owner.
5.3 Wages or salaries of the Contractor’s supervisory and administrative personnel wherever located or engaged, but only for that portion of their time required for and directly related to the performance of the Work.
5.4 Costs paid or incurred by the Contractor for employee-related insurance, contributions, assessments, travel, subsistence and benefits required by law or collective bargaining agreements and, for personnel not covered by such agreements, customary benefits such as employee-related insurance, contributions, assessments, sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries included in the Cost of the Work under Paragraphs 5.1, 5.2, and 5.3.
5.5 Actual payments made by the Contractor to Subcontractors in accordance with the requirements of the applicable subcontracts and supply contracts, and subject to the provisions of Section 26 and its subparagraphs. As used in this Agreement, the term “Subcontractors” shall include all subcontractors and suppliers under a direct contract with Contractor.
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5.6 Costs, including transportation and installation, of materials and equipment incorporated or to be incorporated in the completed Project. Costs, including transportation, installation, maintenance, dismantling and removal, of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by the construction workers which are provided by the Contractor at the site and fully consumed in the performance of the Work; and cost less salvage value on such items if not fully consumed, whether sold to others or retained by the Contractor. Cost for items previously used by the Contractor shall be fair market value.
5.7 Rental costs of machinery and equipment used in the performance of the Work; provided that in no event shall such rental costs paid for particular items of machinery or equipment exceed the market rate purchase price of such items.
5.8 Costs of installing equipment and components furnished by the Owner (“Owner-Furnished Components”).
5.9 Costs of removal and disposal of debris from the Project site.
5.10 Premiums for insurance, to the extent of the portion directly attributable to this Agreement.
5.11 Costs of permits, fees, tests and inspections paid by the Contractor pursuant to Section 20.
5.12 Costs relating to any general conditions and overhead reasonably allocable to the Work and not to any other project. These costs include items such as utilities, telecommunications, water coolers, portable toilets, etc.
5.13 Cost of the building permit, if obtained by the Contractor; provided, that this cost shall not be subject to Contractor’s markup or fee.
5.14 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Owner.
6.2 Expenses of the Contractor’s principal office and other offices,
6.3 Overhead, “soft” general conditions costs, and other general expenses.
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6.4 The Contractor’s capital expenses, including interest on the Contractor’s capital employed for the Work.
6.5 The Owner’s costs in furnishing Owner-Furnished Components.
6.6 Costs due to the fault or negligence of the Contractor, Subcontractors, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to costs of correcting, retesting and reinspecting damaged, defective or nonconforming Work, disposal and replacement of materials and equipment incorrectly ordered or supplied, and making good damage to property not forming part of the Work.
6.7 Any cost not specifically and expressly described in Section 5.
8.1 The Contractor’s applications for progress payments, together with such waivers and releases, Cost of the Work documentation and cost data, and other documentation as the Owner or its lender or engineer reasonably shall require, shall be submitted to the Owner no later than the fifth (5th) day of each month, and the Owner shall make payment via wire transfer to the Contractor no later than fifteen (15) days after receipt of Contractor’s application for a progress payment. The Owner shall make final payment no later than fifteen (15) days after receipt of Contractor’s application for final payment, together with such waivers and releases, Cost of the Work documentation and cost data, warranties, operations and maintenance manuals, keys, record drawings, and other documentation and items as the Owner reasonably shall require. The Owner and Contractor agree that the waivers and releases to be submitted under this Paragraph 8.1 shall be in the form set out in Exhibit C. The Owner and Contractor also agree
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that such waivers and releases shall be executed by the Contractor and those from whom the Owner may reasonably require them.
8.2 The Owner may withhold all or a portion of a progress payment or final payment on account of (1) incomplete Work, (2) defective or nonconforming Work, (3) claims filed or a reasonable basis to believe that such claims will be filed imminently, (4) failure of the Contractor to make payments properly for labor, services, materials, equipment or subcontracts, (5) damages caused to the Owner or another party by Contractor or those under Contractor’s control, or (6) failure to carry out the Work in accordance with this Agreement, all as determined by Owner in its reasonable discretion. In so doing, the Owner may withhold up to one hundred fifty percent (150%), respectively, of (1) the cost to complete such incomplete Work, (2) the cost to cure such defective or nonconforming Work, (3) the amount of such claims, (4) the amount of such payments not made, (5) the amount of such damages, and (6) all costs reasonably necessary to cure any failure to carry out the Work in accordance with this Agreement.
8.3 The making of final payment shall constitute a waiver of all claims by the Owner except those expressly reserved in writing by the Owner at the time of final payment and those arising from (1) unsettled construction lien or other claims, (2) defective, deficient, or nonconforming Work, (3) failure of the Work to comply with the requirements of this Agreement or (4) breach of warranty.
8.4 Cash discounts obtained on payments made by the Contractor shall accrue to the Owner if, before making the payment, the Contractor included them in an application for payment and received payment therefor from the Owner. The Contractor shall timely notify the Owner of all opportunities for such cash discounts. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Contractor shall make provisions so that they can be secured. Amounts which accrue to the Owner in accordance with this provision shall be credited to the Owner as a deduction from the Cost of the Work.
9.1 The Contractor has already commenced performance of the Work pursuant to a Limited Notice to Proceed executed by the Owner and the Contractor on July 14, 2006.
9.2 Both the Owner and Contractor shall perform their obligations under this Agreement in compliance with the Project Schedule attached as Exhibit D, subject to modifications of such Project Schedule consistent with changes in the Contract Times pursuant to Sections 10 and 13.
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9.3 The Contractor shall achieve Mechanical Completion (as hereinafter defined) of the Work not later than the applicable date specified on Exhibit A, subject to changes in these Contract Times pursuant to Sections 10 and 13 (the “Guaranteed Mechanical Completion Date”). Mechanical Completion shall be achieved when: (i) the Work is completed in accordance with this Agreement, except for punch list items; (ii) the Owner has received any required temporary or final certificate of occupancy from the governmental agency with jurisdiction over the Project; and (iii) the registered architects or engineers who designed portions or components of the Work have issued certificates of Mechanical Completion as to those portions or components. The Owner shall not occupy or utilize the Work until it is mechanically completed except as agreed in writing in advance by the Contractor.
9.4 The Contractor shall achieve Final Completion (as hereinafter defined) of the Work not later than the applicable date specified on Exhibit A, subject to changes in these Contract Times pursuant to Sections 10 and 13 (the “Guaranteed Final Completion Date”). Final Completion shall be achieved when: (i) Mechanical Completion of the Work has been acknowledged by the Owner and engineer in writing; (ii) final lien waivers and releases and other documents or inspections reasonably required by Owner’s engineer or lender have been delivered; (iii) the Contractor has delivered the job books and as-built drawings; (iv) all the Contractor’s supplies, personnel and rubbish have been removed from the site; (v) all punch list items have been completed (or otherwise resolved by agreement of the Owner and the Contractor; and (vi) Liquidated Damages, if applicable, have paid to Owner.
9.5 In lieu of actual delay damages, the Owner and Contractor agree that if Mechanical Completion is not achieved by the applicable Guaranteed Mechanical Completion Date, the amount of the Owner’s actual damages will be difficult to determine. Accordingly, the Owner and the Contractor agree that in the event the Contractor fails to achieve Mechanical Completion by the applicable Guaranteed Mechanical Completion Date, the Contractor shall pay to the Owner as liquidated damages to compensate the Owner for damages related to the delayed completion of the Work (“Liquidated Damages”) seventy-five thousand dollars per week ($75,000/week) for every calendar week Contractor fails to meet the Guaranteed Mechanical Completion Date referenced in paragraph 9.3 (less then full weeks shall be pro-rated; provided, however, that the aggregate amount of liquidated damages cannot exceed six hundred thousand dollars ($600,000).
9.6 The Owner and Contractor agree that if Mechanical Completion for the Work occurs prior to the Guaranteed Mechanical Completion Date, the Owner shall pay to the Contractor as a bonus seventy-five thousand dollars per week ($75,000/week) for every calendar week the Work reaches Mechanical Completion prior to its Guaranteed Mechanical Completion Date (less then full weeks shall be pro-rated); provided that the aggregate amount of the bonus shall not exceed three hundred thousand dollars ($300,000).
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Times for any extra or additional work or for work outside the scope of the Agreement, except as set out in this Section 10.
10.1 The Owner and Contractor shall enter into a written Change Order signed by both parties stating the changed Work to be performed, any agreed changes in the Contractor’s Fee, and any agreed changes in the Contract Times. Any extra or changed work performed without prior written direction or approval of Owner shall not be compensated by Owner.
10.2 If the Owner and Contractor are unable to agree on the changes in the Contractor’s Fee or the changes in the Contract Times, the Owner may direct the Contractor in writing to perform the changed Work and the Contractor shall immediately perform such Work. In such case, and subject to Section 4 above, (i) the Contractor’s Fee shall be calculated in accordance with the following xxxx-up schedule, as applied to the actual change in the Costs of the Work: 20% on staff labor and supervision; 15% on direct and fabrication labor; 10% on materials and equipment and 5% on Subcontractors; and (ii) the Contract Times shall be adjusted based on the reasonable actual impact on the Contractor’s performance of the Work. If the parties are unable to agree on the changes in the Contractor’s Fee or in the Contract Times, the Owner shall determine any such changes, which shall be subject to arbitration if demanded by the Contractor.
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presented in accordance with all requirements of this paragraph shall be deemed waived and forever discharged.
13.1 If adverse weather conditions or other events of Force Majeure are the basis for a claim for an extension of the Contract Times, such claim shall be allowed only to the extent it is documented by data substantiating that the weather conditions (i) were unusually severe for the Aberdeen area during the period of time in question, (ii) unusually severe to be defined as occurrences of in excess of 1.50 inches of precipitation for 2 or more consecutive days, and/or precipitation in excess of 2.00 inches of precipitation for 1 or more consecutive days, and/or precipitation in excess of 1.00 inches for 3 or more consecutive days, as measured at Hoquiam’s Xxxxxxxx Airport, (iii) could not have been reasonably anticipated and (iiii) had an adverse effect on the scheduled performance of the Work.
13.2 An extension of the Contract Times shall be allowed only to the extent that such delay was not caused by any fault or negligence of the Contractor, Subcontractors, anyone directly or indirectly employed by any of them or for whose acts any of them may be liable.
13.3 If the Work is stopped or suspended by order of any court or governmental authority, within seven (7) days after receipt of notice that such Work stoppage or suspension is removed, the Contractor shall complete the Work as expeditiously as reasonably possible. In the event of such stoppage or suspension, the Contractor shall be entitled to an extension in the Contract Times equal to the length of the delay (the length of the stoppage or suspension plus the seven (7) or fewer days after notice within which the Contractor recommences the Work) plus an equitable increase in the Contractor’s Fee.
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16.1 The Contractor warrants to the Owner that the materials and equipment furnished under this Agreement will be (a) new and of good quality; (b) free from defects in materials and workmanship, unless otherwise approved in writing in advance by the Owner, and (c) that the Work will be performed in a good and workmanlike manner and in accordance with the Plans and all applicable codes, laws and standards. The Contractor shall collect and submit to the Owner, upon Mechanical Completion of the Work, all warranties from Subcontractors supplying materials, equipment or components incorporated into the Project, and the Contractor hereby assigns to the Owner all of the Contractor’s rights under such warranties. The Contractor agrees that such warranties from those Subcontractors referenced in Exhibit F shall comply with the requirements set out in Exhibit F.
16.2 The Contractor will recommend to Owner all process and construction improvements that it believes in good faith would optimize the Project construction and operations, provided that Contractor’s liability for breaches of such warranty shall be limited to instances of gross negligence or willful misconduct.
16.3 The following shall govern the durations of the warranties described above. The base warranty period will commence when Mechanical Completion has been achieved and will continue for the lesser of (i) twelve (12) months from the applicable Guaranteed Mechanical Completion Date; or 18 months after the applicable Final Completion Date (“Base Warranty Period”). Warranty for any repairs or replacements shall commence on the date the repair or replacement is completed and continue until the later of the expiration of the Base Warranty Period or six (6) months from the date of completion of the repair or replacement and shall not exceed a maximum of thirty (30) months from the Mechanical Completion Date (the “Repair Warranty Period”) (the Base Warranty Period plus the Repair Warranty Period are collectively referred to as the “Warranty Period”). Contractor shall, as mitigation of the damages suffered by the Owner, at Contractor’s own cost and expense (including the cost of labor and equipment) promptly repair or replace with materials of new and good quality any Work or materials which fail to comply with the warranty during the Warranty Period.
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site in a neat and orderly condition. Should the Contractor fail to perform its obligations under this Section, the Owner may do so at the Contractor’s expense.
20.1 The Owner shall contract and pay for all tests and inspections of the Work by third parties required and necessary for the performance and completion of the Work by the Contractor and Subcontractors; provided that the Contractor rather than the Owner shall pay for such tests and inspections to the extent they disclose defective or nonconforming Work. The Contractor’s costs incurred under this Section 20.1 shall be reimbursed as part of the Cost of the Work, except to the extent the defective or nonconforming Work is caused by the fault of negligence referenced in Section 6.6. The Contractor shall give the Owner reasonable notice of the time for the tests and inspections referenced in this Section 20.1.
20.2 Observations or approvals by the Owner, architect or others (including third parties) shall not relieve Contractor of its sole responsibility for construction means, methods, techniques, sequences, safety issues, and procedures, and for supervising, coordinating and performing all of the Work.
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22.1 The Contractor agrees to cooperate with the Owner and the Owner’s separate contractors, and the Owner agrees to cooperate with the Contractor and to require its separate contractors to do the same, with respect to scheduling, material and equipment deliveries and storage, security, cleanup, work activities and other aspects of the Project. The Contractor shall be responsible for any avoidable interference in or delays to the work related to the Project performed by the Owner’s own forces or separate contractors caused by the Contractor. The Owner shall be responsible for any avoidable interference in or delays to the Work caused by the Owner’s own forces or separate contractors.
22.2 Any work performed by the Owner’s own forces or separate contractors shall not be covered by the Contractor’s warranties under this Agreement. In the event the Owner furnishes Owner-Furnished Components, the Contractor’s warranties under this Agreement shall extend to the installation but not to the materials, equipment, or components per se.
23.1 Immediately upon discovery, the Contractor shall cease performance of the Work in that area of the Project where there are, or reasonably appear to be, the following: (a) materials which are or which it reasonably believes are hazardous materials which are not controlled or have not been rendered harmless; or (b) a condition which is or which it reasonably believes is a wetland condition which is not protected; or (c) items or a circumstance which is or that it reasonably believes is a Native American archeological site which is not protected.
23.2 As used in this Section 23: (a) the term “hazardous materials” shall mean and include all “hazardous substances” as defined in the federal Comprehensive Environmental Response Compensation Liability Act (CERCLA), all “hazardous waste” as defined in the federal Resource Conservation Recovery Act (RCRA), and similar terms as used in applicable federal, state and local statutes, rules and regulations; and (b) the term “wetland condition” shall mean and include all “wetlands” and “waterbodies” subject to regulation under the federal Clean Water Act and similar terms as used in applicable federal, state and local statutes, rules and regulations; and (c) the term “Native American archeological site” shall mean and include any cairn, burial, human remains, funerary objects, sacred objects or objects of cultural patrimony of any native Indian, as referenced in applicable federal, state and local statutes, rules and regulations.
23.3 Upon ceasing the Work in the circumstances described in Section 23.1, or upon discovery of any occurrence or condition which constitutes or reasonably could constitute an immediate danger to persons, property or the environment, the Contractor shall take such emergency actions as are reasonably necessary to contain any suspected hazardous materials
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or limit their effects, to protect the suspected wetland condition or the suspected Native American archeological site, or to otherwise minimize the danger, shall take such temporary measures as are reasonably necessary to secure the involved area of the Project site from further disturbance, and shall notify the Owner in person, by telephone or by telecopy as soon as possible with prompt confirmation in writing. The Contractor shall not resume the Work in the affected area until it has received a written order from the Owner to do so.
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30. Ownership of Drawings and Specifications.
30.1 The Owner, through its architect or engineer, shall provide all Drawings, Specifications and other design, architectural and engineering documents included in the Contract Documents, whether in print, CADD, or other computerized or other form of memory or recording, describing and necessary for the Work to be performed (the “Plans”). The Contractor shall not be required to provide professional services which constitute the practice of architecture or engineering unless the Contractor needs to provide such services in order to carry out its responsibilities for construction means, methods, techniques, sequences and procedures or unless such services are specifically called for by the Contract Documents. If professional services are required of the Contractor, the Owner shall indicate all performance and design criteria to be satisfied. The Contractor shall not be responsible for the adequacy of such performance and design criteria. The Contractor shall obtain professional services and any design certifications required from licensed design professionals. All drawings, specifications, calculations, certifications and submittals prepared by such design professionals shall bear the signature and seal of such design professionals and the Owner and the architect/engineer shall be entitled to rely upon the adequacy, accuracy and completeness of such design services absent violation of existing laws, rules and regulations in the jurisdiction where the Project is located; provided, however, that nothing in this Section 30.1 shall be construed to limit the Contractor’s obligations under Section 16.2.
30.2 The Plans are to be used by the Contractor and Subcontractors for the limited purpose of describing the Work to be performed. The Contractor may maintain one (1) record set of such documents; all other sets and copies of such documents shall be returned to the Owner upon Mechanical Completion of the Work. Neither the Contractor nor Subcontractors shall have any copyright or other property interest in such documents, shall not provide the documents or copies thereof to any third parties for any purpose except as necessary or required to perform the Work, and shall not use the documents on any other project or for any work under any other contract without the specific approval of the Owner in writing in advance.
30.3 All information and Plans to be provided by the Owner or its agents under this Agreement (collectively, the “Work Product”) shall be the exclusive property of the Owner. Furthermore, all Developments shall be the exclusive Property of the Owner. “Developments” means (i) all products, devices, computer programs, original video content, information, inventions, ideas, concepts, discoveries, designs, improvements, techniques, data, technology, know-how, algorithms or procedures, whether or not patentable or copyrightable and whether reduced to practice, (ii) all patents and patent rights, copyrights, trade secrets, trademarks, and other similar property rights, and (iii) all Project process or operational writings, records, journals, laboratory notebooks, data, texts, drawings, specifications, source code, data and other
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recorded information and other materials (in written, electronic or other medium), in preliminary or final form, that (a) are within the scope of or directly related to the Project process or operation or process-related research or investigations or results that are from or are suggested by the Contractor’s or Subcontractors’ performance of the Work, and (b) that are created, conceived, reduced to practice, developed, discovered, invented or made by the Contractor or Subcontractors during the term of this Agreement, whether solely or jointly with others, and whether or not while engaged in performing the Work. The Contractor agrees and does hereby assign, grant, transfer and convey to the Owner, its successors and assigns, the Contractor’s entire right, title, interest and ownership in and to such Developments, including all intellectual property rights associated with such Developments and specifically including the right to secure patent and copyright registration. The Contractor confirms that the Owner and its successors and assigns shall own the Contractor’s right, title and interest in and to, including the right to manufacture, use, reproduce, distribute by sale, rental lease or lending or by other transfer of ownership, to perform publicly, and to display, all such Developments, whether or not such items constitute all “work made for hire” as defined in 17 U.S.C. Section 201(b). The Owner shall have, and the Contractor hereby grants to the Owner, an unrestricted, transferable, fully paid up, perpetual license and right to use, reproduce and make derivative works from all Developments. This license shall survive termination of this Agreement by either Party for any reason. The above notwithstanding, in no event shall the provisions of this Section 30 in any way apply to Contractor’s means and methods in performing the Work, the rights to and ownership of which shall solely reside with and belong to Contractor.
If claims are asserted against any Owner Indemnified Party by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them, or anyone for whose acts they may be liable, the Contractor’s indemnification obligation under this section shall not be limited by any limitation on the amount or type of damages, compensation, or benefits payable to the employee by or for the Contractor or a Subcontractor under workers’ compensation acts, disability benefit acts, or other employee benefit acts. The Contractor agrees that its indemnification obligations extend to claims, demands, and causes of action brought by or on behalf of its employees or agents. Only to the extent necessary to fulfill
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those obligations, the Contractor, by mutual negotiation, hereby waives any immunity that would otherwise be available against claims brought by employees or agents under the Industrial Insurance provisions of RCW Title 51.
To the fullest extent permitted by law, Owner shall defend, hold harmless, reimburse and indemnify the Contractor, and its partners, owners, members, officers, agents and employees (the “ Contractor Indemnified Parties”) from, for and against any and all claims, demands, losses, costs, damages, expenses, penalties, actions, suits and liabilities, including without limitation investigation costs, attorneys’ and expert witnesses’ fees and other legal expenses, arising out of or related to this Agreement or the Work, including without limitation injury or death to persons or damage to property of any kind, to the extent such claims, demands, losses, costs, damages, expenses, penalties, actions, suits or liabilities are caused by the negligence, breach of contract, breach of warranty, or other wrongful acts or omissions, whether active or passive, including but not limited to failure to comply with applicable laws, on the part of the Owner, its contractors, or the partners, officers, directors, agents, or employees of any of them, or anyone for whose acts Owner is responsible.
If claims are asserted against any Contractor Indemnified Party by an employee of the Owner or anyone directly or indirectly employed by Owner, or anyone for whose acts Owner may be liable, the Owner’s indemnification obligation under this section shall not be limited by any limitation on the amount or type of damages, compensation, or benefits payable to the employee by or for the Owner under workers’ compensation acts, disability benefit acts, or other employee benefit acts. The Owner agrees that its indemnification obligations extend to claims, demands, and causes of action brought by or on behalf of its employees or agents. Only to the extent necessary to fulfill those obligations, the Owner, by mutual negotiation, hereby waives any immunity that would otherwise be available against claims brought by employees or agents under the Industrial Insurance provisions of RCW Title 51.
33.1 Title to all equipment and materials to be incorporated into the Project shall pass to Owner upon delivery of such equipment and materials to the Project site or when Contractor receives payment relating to the equipment and materials, whichever occurs first. Notwithstanding the timing of passage of title, the Contractor and the Subcontractors providing equipment pursuant to this Agreement shall clearly xxxx all Work in progress and during the manufacturing and assembly as being prepared for the Project so as to distinguish such material from material in preparation for other facilities or projects.
33.2 Notwithstanding the provisions of Section 33.1, the Contractor shall bear the risk of loss of and damage to, and shall be obligated to repair, replace, or reconstruct, or pay for,
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all or any portion of the Work, including any equipment or other item of Work which is lost, damaged or destroyed due to Contractor’s negligence, prior to the Final Completion of the Facility. Contractor’s building risk shall cover stolen property up to $250,000.
34.1 The insurance required by this Section 34 shall be provided by an insurance company or companies lawfully authorized to conduct business in the state where the Project is located which have a policy-holder’s rating of not less than “A” in the most recent edition of Best’s Rating Guide. Such insurance shall be written on an occurrence basis and shall be maintained without interruption from the date of commencement of the Work until at least one (1) year following the date of Final Payment and at all times thereafter when the Contractor may be correcting, removing or replacing defective or rejected Work, or longer if required below. The Contractor shall name the Owner and its agents and employees as additional insureds on all insurance policies, except the Workers’ Compensation policy. The Contractor shall obtain from the Owner the list of names to appear on the insurance policies. The Contractor shall pay all deductibles. The insurance shall be written for not less than the following limits, or greater if required by law, and otherwise shall comply with the following requirements:
a. State: Statutory.
b. Employer’s Liability: $1,000,000.
34.1.2 Commercial General Liability, applicable to all premises and operations, including Bodily Injury, Property Damage, Independent Contractors, Blanket Contractual, Personal Injury, Products and Completed Operations, Broad Form Property Damage (including Completed Operations) and coverage for explosion, collapse, and underground hazards, with limits of liability of not less than the following:
a. $1,000,000 combined single limit per occurrence.
b. $2,000,000 aggregate applicable specifically to the Project.
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c. The Commercial General Liability insurance shall be primary and non-contributory with the Owner’s policies carried for their sole benefit and include umbrella liability coverage of not less than $10 million for per occurrence.
34.1.4 Builders All-Risk insurance, with limits of liability as specified in Exhibit A (the “Builders All-Risk Insurance Limits of Liability”) naming Owner as the insured.
34.1.5 Each policy shall contain a provision that the policy will not be canceled or allowed to expire until at least thirty (30) days’ prior written notice to the Owner. Such notices and any endorsements subsequently issued amending coverage or limits shall be delivered to the Owner by certified mail. Upon receipt of any notice of cancellation, non-renewal or reduction in coverage, the Contractor shall within five (5) days procure other policies of insurance, similar in all respects to the policy or policies about to be canceled, non-renewed or reduced in coverage. If the Contractor fails to provide acceptable policies of insurance, the Owner may obtain such insurance at the cost and the expense of the Contractor.
34.1.6 The Contractor shall require each Subcontractor to purchase and maintain insurance of the types and for the durations stipulated hereinabove with policy limits as established by Contractors Master Subcontract Agreements. All general liability policies carried by Subcontractors shall be endorsed to include as additional insured parties the Owner and its agents and employees.
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the Contractor’s Fee, in an amount equal to the Cost of the Work performed up to the effective date of termination multiplied by the proportion of the Cost of the Work performed up to the effective date of the termination (Contractor’s Fee at termination = (Contractor’s Fee) x (Cost of the Work performed up to the effective date of termination / Sum of Payments in Exhibit B, as amended)), thereon for the Work performed up to the effective date of termination, plus the Contractor’s demobilization and other costs directly relating to the termination.
37. Termination and Cancellation.
As an alternative to termination if any of the above events occur, the Owner in its sole and absolute discretion may require (i) Contractor, its trustee or other successor, to furnish, upon Owner’s request, adequate assurance of Contractor’s ability to perform all further material obligations under this Agreement, which assurances shall be provided within five (5) calendar days after receiving notice of the request and (ii) Contractor to file an appropriate action within the bankruptcy court to seek assumption or rejection of the Agreement within ten (10) calendar days of the institution of the bankruptcy filing and to diligently prosecute such action. If Contractor fails to comply with its above obligations, Owner shall be entitled to request the bankruptcy court to reject this Agreement, declare this Agreement terminated and pursue any other recourse available to Owner under this Section 37. The rights and remedies under this Section 37 shall not be deemed to limit Owner’s ability to seek any other rights and remedies provided by this Agreement or by Law, including its ability to seek relief from any automatic stays under the United States Bankruptcy Code. Because of the urgent nature of the Work, Contractor will not oppose or object to any attempt by Owner to seek relief from any automatic stays.
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possession of the site and all of the Contractor’s materials, equipment, tools, construction equipment and machinery and complete all or any part of the Work, and the Contractor to the extent requested by the Owner shall assign the Contractor’s subcontracts and supply contracts to the Owner for the purpose of so completing Work. In the event the Owner takes over the Work pursuant to this Section, the Owner may dispose of excess materials and debris as it determines appropriate, in its sole discretion. The Contractor shall have no rights in the proceeds of such materials, unless they exceed the Owner’s costs of completing the Work and such other damages as the Owner may sustain as a result of the Contractor’s default. The Owner’s rights under this Section shall be subject to the rights of the Contractor’s surety and the Contractor’s trustee-in-bankruptcy, if any. The Owner’s election to take over all or any part of the Work shall not constitute the Owner’s sole remedy upon any such default. The Owner expressly reserves all other rights and remedies under this Agreement at law and in equity upon default, including without limitation the right to terminate this Agreement for cause.
38.1.1 The affected Party shall give timely notice of any event or circumstance that it believes is or might become an event of Force Majeure, which notice shall include any information that may be required to justify a Change Order. Such notice shall be issued promptly but in no event later than five (5) days following actual knowledge of such condition.
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38.1.2 The affected Party shall use reasonable efforts to remove or mitigate the effects of any Force Majeure Event.
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to conclude such arbitration within sixty (60) days of filing of the request. The parties shall request arbitration by a panel of three (3) arbitrators, selected in accordance with the Rules of the American Arbitration Association. The decision of the arbitrators shall be final and judgment upon the award may be entered into any court having jurisdiction thereof. Any construction lien foreclosure suit shall be stayed pending the arbitration.
40.2.1 Arbitration proceedings and any trial court suit or action arising out of or related to this Agreement shall be commenced and conducted in Olympia, Washington.
40.2.2 In addition to negotiation and arbitration as required herein, the Owner and Contractor agree to a single consolidated negotiation or, if necessary, arbitration of disputes between and among the Owner; Contractor; all Subcontractors and suppliers; architect, engineer and their consultants and their subconsultants; Owner’s separate consultants and contractors, and their respective subconsultants, subcontractors, suppliers and all other persons and entities performing labor, services, materials, equipments or other performance for the Project. Such consolidated mediation and arbitration otherwise shall be governed by the terms of this Section 40.
41. Governing Law; Forum; Attorney Fees. This Agreement and all disputes arising out of or related to this Agreement and the Work shall be governed by the laws of the State of Washington. Any arbitration, suit or action arising out of or related to this Agreement shall be commenced and conducted in Olympia, Washington. Should any suit, action or arbitration be commenced in connection with any dispute arising out of this Agreement, to obtain a judicial construction of any provision of this Agreement, to rescind this Agreement, or to enforce or collect any judgment or decree of any court or any award obtained during arbitration, the prevailing party shall be entitled to recover its costs and disbursements, together with such investigation costs and fees, expert witness costs and fees, and attorney costs and fees, as the court or arbitrator may adjudge reasonable, incurred in connection with such dispute before trial or arbitration, at trial or arbitration, upon any motion for reconsideration, upon any appeal or petition for review, and upon any collection efforts or proceedings.
42 Modification; Entire Agreement. No oral communication, promise, understanding, or agreement before, contemporaneous with or after the execution of this Agreement shall affect or modify any of its terms or obligations. This Agreement shall be conclusively considered to contain and express all the terms and conditions agreed upon by the parties, notwithstanding any prior or contemporaneous written communication, promise, understanding or agreement. This Agreement shall be modified only by a subsequent writing signed by both parties.
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Owner and its audit representatives will endeavor to minimize interference to Contractor’s operations while the audit is being conducted.
| To Owner: |
| Imperium Grays Harbor LLC |
| 0000 Xxxx Xxxxxxxxxx Xxxx |
| Xxxxxxx, XX 00000 |
| Tel: |
| Fax: |
| Email: |
| With a copy to: |
| Imperium Renewables, Inc. |
| 0000 Xxxxx Xxxxxx, Xxxxxxx, XX 00000 |
| Tel: 000-000-0000 |
| Fax: 000-000-0000 |
| Email: |
| To Contractor: |
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| XX Xxxxx LLC |
| 0000 Xxxx Xxxxx Xx |
| Xxxxxxxxx, XX 00000 |
| Attention: Xxxx Xxxxxxxxxxx |
| Tel: 000-000-0000 |
| Fax: 000-000-0000 |
| Email: xxxxxxxx@xxxxxxx.xxx |
| IMPERIUM GRAYS HARBOR LLC | XX XXXXX LLC | |||||||
| OWNER | CONTRACTOR | |||||||
| /s/ Xxxx Plaza | /s/ Xxxxx Major | |||||||
| Title: | President | Title: | Sr. VP | |||||
| Date: | 8/25/06 | Date: | 8/25/06 |
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