Exhibit 10.10
Agreement to supply
PAGE 19
JPK:Comm:Doors:SubK:Final November 24, 1999 17:17 PM
300
Series of Doors and Associated Equipment
Agreement made this 31st day of August, 1999, ("Agreement") by and between
Telesource International, Inc., a corporation formed under the laws of the State
of Illinois ("Contractor") and P.W.S. International, Inc., a corporation formed
under the laws of North Carolina ("Supplier").
Whereas Sayed Xxxxx Xxxxxxxxx and Sons Co. W.L.L ("Developer") has entered
into a contract with the United States Department of State ("Owner"), for the
construction of Diplomatic Housing (the "Project") in the Country of Kuwait,
which contract includes the Series of Doors and Associated Equipment to be done
under and pursuant to this subcontract agreement (the "Work");
Whereas Contractor will be providing the Developer with various items,
including the Series of Doors and Associated Equipment component of the Project;
and
Whereas Supplier desires and is willing to furnish all necessary materials,
equipment and labor to provide the Series of Doors and Associated Equipment
component of the Project in accordance with the specifications of the Owner;
Now therefore, in consideration of the mutual promises and covenants
expressed in this agreement, the Contractor and Supplier agree as follows:
1) Scope of the Work.
Supplier 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 Contractor with a Series of Doors and Associated
Equipment 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, Supplier shall adhere
to the requirements and specifications which relate to the equipment and
services provided pursuant to this Agreement and which are contained in the
Department of State Request for Proposals attached as Exhibit "B" and the
Federal Acquisition Regulations applicable to this Agreement as scheduled in
Exhibit "C", both of which are incorporated by this reference and hereby become
an integral part of this Agreement. Nothing in this Agreement shall deprive the
Owner or Developer of any rights they may have under the Federal Acquisition
Regulations or the contract between the Owner and the Developer.
In particular, but in no way limiting Supplier's duties as set forth in
this Section 1, Supplier shall provide the services as set forth as follows:
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1.1) Supply Of Items.
Supplier shall supply and deliver to the Contractor all items as
enumerated in the attached Exhibit "D".
1.1.1) Intentionally Deleted.
1.1.2) Goods are to be shipped C&F Kuwait.
1.2) Shop Drawings, Submittals, Support Manuals and Certifications.
Supplier shall furnish the following drawings, submittals and manuals
to Contractor for approval prior to use in connection with the Project. All
submissions shall be identified as the Project Manager may require. At the
time of each submission, the Supplier shall give the Project Manager
specific written notice of each variation that the drawing, sample, manuals
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 Supplier of its obligation to perform the Work in accordance with
this Agreement.
1.2.1) Shop Drawings.
Supplier shall prepare and submit to Contractor the required number of
copies of all working drawings, prints, sepias and mylars (including
revisions, addenda and modifications) to be used in connection with the
Work. 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.
1.2.2) Submittals.
Supplier shall prepare and submit the required number of representative
samples of all proposed materials and equipment to be furnished by Supplier
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.
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1.2.3) Support Manuals.
Suppliers shall prepare and submit the required number of copies of all
owner's manuals, installation manuals, illustrated parts breakdowns and
operations, maintenance and repair manuals, spare parts schedules and any
other data as may be required under Exhibit B in regard to the operation of
the Work.
1.2.4) Test and Compliance Certificates.
Supplier shall prepare and submit the required number of copies of all
manufacturer's test certificates and certificates of compliance as required by
the contract specifications. Such certificates 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, or
additional certifications as appropriate.
1.3) As-Built Drawings.
Supplier 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 shall be delivered to the
Contractor.
1.4) Intentionally Deleted.
1.5) Insurance and Indemnification for Loss or Injury.
Supplier shall maintain such Public Liability, Property Damage, and
Employee's Liability and Compensation insurance as will protect Contractor
from all customarily insurable risks of loss which may result in any way
from any act or omission of Supplier, 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.
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2) Commencement and Progress of the Work.
2.1) Commencement of the Work.
Supplier shall commence performance of the Work immediately 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 two (2) weeks after the execution of this Agreement, Supplier
shall prepare and deliver to Contractor a comprehensive delivery schedule
(the "Delivery Schedule") showing expected shipping ex-factory dates of
materials and all relevant activities. Where necessary, the dates shall be
based on time from the date that Contractor approves Supplier's submittals.
Each of Supplier's activities shall be allocated a price, and the sum of
these prices shall equal the total contract price.
2.3) Progress and Completion.
2.3.1) All time limits stated in this Agreement, including those stated in
the Delivery Schedule, are of the essence of this Agreement. Supplier
is aware that Developer is liable to Owner for Developer's delays, with
minimum liquidated damages payable by Developer to Owner of $4,500.00
per day. In turn, Contractor is liable to Developer for Contractor's
delays. Similarly, the Supplier will be liable to Contractor for
Supplier's delays to the extent and only to the extent the delays were
caused by the Supplier or his suppliers.
2.3.2) Contractor may, at any time, by written order to Supplier, require
the Supplier to stop all or any part of the Work. However the
Contractor will only order the work stopped if the Owner issues a Stop
Order. Supplier has all of the rights and remedies against the Owner
available to the Contractor, incluing rights to equitable adjustment or
time of performance or Contract Price.
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2.4) Responsibility for Progress and Completion.
2.4.1) Supplier 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 Delivery Schedule.
2.4.2) If the Work is not being performed in accordance with the Supplier's
Delivery Schedule, or if it becomes apparent to the Contractor that the
Work shall not be completed within the scheduled time, Contractor shall
notify Supplier in writing of such nonconformity, at which time
Supplier 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) Intentionally Deleted.
2.4.4) Intentionally Deleted.
3) Contract Price and Application For Payment.
3.1) Contract Price.
Contractor agrees to pay Supplier the lump sum of the unit prices in
Exhibit "G" for Supplier's performance of all the Work (the "Contract
Price") as per the attached Purchase Order which is made an integral part
of this Agreement. No additional claims or charges will be entertained
except as specifically provided by this Agreement.
3.2) Clear Title.
Supplier 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 Supplier's final invoice warrants that he has
obtained a waiver of liens for all work performed under the contract.
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3.3) Payment Withheld.
Upon the occurrence of any of the following events, the Project Manager
may deny Supplier's application for payment and withhold payment until such
event of failure is cured:
(a) Failure to remedy a defect in the Work;
(b) Failure of Supplier to pay lower tier contractors or vendors;
(c) Failure to adhere to the Delivery Schedule;
(d) Failure to perform the Work in accordance with this Agreement;
(e) Project Manager's reasonable determination that liens or claims
against the Supplier and Supplier furnished materials have been
filed or shall be asserted;
3.4) Set-Off.
Contractor shall be entitled at all times to set-off any amount owing
at any time from Supplier to Contractor or any of its affiliated companies
against any amount payable at any time by Contractor in connection with
this order. Any set-off will be first made against retainage.
4) Changes In the Work.
Upon the instructions of the Developer or 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 Supplier, pursuant to a mutually agreed upon change order.
4.1) Change Orders.
A Change Order is a written instrument, issued after the execution of
this Agreement, signed by the Contractor and the Supplier stating their
agreement upon a change and any adjustment in the Work, the price therefor
and the Suppliers Delivery 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 Supplier without
additional claim or charge.
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4.2) Change Order Request.
4.2.1) Within ten (10) days of the receipt of Contractor's proposed change
in the Work, the Supplier 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 Suppliers Delivery 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
negotiated in good faith by the parties.
5) Supplier's Warranties; Non-Conforming Work.
5.1) Warranty.
In addition to any warranties provided by law, Supplier warrants that
the equipment and services provided pursuant to this Agreement shall be
free from defects in material and workmanship and shall completely meet all
the terms and conditions of Exhibit "B" and the Federal Acquisition
Regulations scheduled in Exhibit "C". This warranty shall remain in full
force for the period reflected in Exhibit "B" (Owner's Request for
Proposal).
5.2) Non-Conforming Work.
Supplier understands it is bidding on the exact specifications of the
Owner. If any of the materials or services provided by Supplier 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 Supplier's expense (including
Supplier's shipping and handling charges), or require that such articles or
materials be corrected or replaced promptly with satisfactory material or
workmanship at Supplier's expense, including shipping and handling.
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6) Indemnification.
6.1) Indemnification for Loss.
If Supplier causes damage to the Work or property of the Owner, the
Developer, the Contractor, or any other subcontractor, or if any claim
arises out of Supplier's performance of the Work including delay due to
Supplier, 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, direct or indirect, which may result
in any way from any act or omission of Supplier, its agent, employees, or
subcontractors, including delay or any injury to person or property during
the progress of such work provided such loss is foreseeable by Supplier or
his suppliers/subcontractors relating to the work, except to the extent
that any such injury is due solely and directly to Contractor's or
Developer's or Owner's negligence or willful acts as the case may be.
6.2) Patent Indemnity.
6.2.1) Supplier shall handle all claims and defend any suit or proceeding
brought against Contractor or its customers (which term throughout this
paragraph shall include without limitation the Owner, the Developer,
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. Supplier shall indemnify and save Contractor and
its customers harmless from and against any expense or liability in
connection therewith, including costs and damages arising out of such
claim, suit or proceeding. In case said goods are enjoined, Supplier
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 Supplier, 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.
308
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 Contractor shall be furnished the required number of sets of the
documents set forth in Exhibit "A". Additional copies shall be
furnished upon request for the cost of reproduction.
7.1.2) All specifications, drawings, technical information and data
furnished by Contractor to Supplier 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.
8) Intentionally Deleted.
9) Termination.
9.1) Termination by Contractor for Cause.
9.1.1) Contractor may terminate this Agreement upon ten (10) days written
notice to Supplier upon the following events of Supplier default,
provided however that Supplier shall be afforded reasonable time to
cure:
(a) Supplier 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 Supplier, or a receiver is appointed or applied for;
(c) Supplier makes a general assignment for the benefit of creditors;
(d) Supplier disregards the laws and regulations of any government
entity having jurisdiction over any activity performed in
connection with the Work or this Agreement;
(e) Supplier disregards the authority or instructions of the Project
Manager;
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(f) Supplier persistently fails to perform the Work in accordance with
this Agreement, including but not limited to, failure to adhere to
the Delivery Schedule or the CPM, and failure to provide
conforming equipment and materials; or
(g) Supplier otherwise materially breaches this Agreement.
9.1.2) Intentionally Deleted.
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 or work in progress; 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, 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 upon Owner Stop Order.
9.2.1) Contractor may, by written notice, terminate this Agreement in whole
or in part upon issuance of a Stop Order by Owner.
9.2.2) Termination 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.
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9.3) Termination by Supplier for Cause.
9.3.1) Supplier may terminate this Agreement upon ten (10) days written
notice to Contractor upon the following events of Contractor default,
provided however that Contractor shall have reasonable time to cure:
(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 Supplier amounts due Supplier pursuant to
this Agreement within ten (10) days of the due date; or
(f) Contractor otherwise materially breaches this Agreement.
9.3.2) Upon Supplier's termination for cause pursuant to this Section 9.3
Supplier 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, and for
work in progress in accordance with the terms of this Agreement.
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9.3.3) In addition to payment pursuant to Section 9.3.2, Supplier shall
within ten (10) days of the date of the notice of termination be
entitled to claim for damages from Contractor arising out of such
termination, which claim shall be subject to negotiation between
Contractor and Supplier. Any negotiated settlement of Supplier's claim
shall be reduced to writing by Contractor and signed by Supplier prior
to payment of settlement damages. Damages claimed pursuant to this
Section 9.3.3 shall be restricted to actual out of pocket damages.
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.
10.2) Designation of Representatives.
10.2.1) The Contractor's Project Manager shall be promptly identified in
writing to Supplier.
10.2.2) The Supplier's Site Representative (if any) shall be promptly
identified in writing to Contractor.
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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:
(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: Telesource 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 Supplier as follows:
Name: P.W.S. International, Inc.
Attn: Xxxx Xxxxxx
Address: X.X. Xxx 000000
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
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12) Compliance With Laws.
Supplier 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.
Supplier's failure to comply with such Laws will be considered a material breach
of this Agreement and may be grounds for termination by Contractor, provided
however that Supplier shall have reasonable time to cure.
In particular, but in no way limiting Supplier's duties as set forth in
this Section 12, Supplier shall comply with the following:
12.1) Fair Labor Standard Act.
In accepting this order, Supplier shall be deemed to represent that the
goods to be furnished hereunder were or will be produced in compliance with
the requirements of the Fair Labor Standards Act as amended, and unless
otherwise agreed in writing, Supplier shall insert a certificate on all
invoices submitted in connection with this order stating that the goods
covered by the invoice were produced in compliance with the requirements of
said Act, as amended, and of regulations and orders of the United States
Department of Labor issued pursuant thereto.
12.2) Chemical Substances.
Notwithstanding anything to the contrary heretofore or hereafter
represented by either party to the other, Supplier warrants that each and
every chemical substance sold or otherwise transferred by Supplier pursuant
to this Agreement, as of the time of such sale or transfer, is on the list
of chemical substances compiled and published by the Administrator of the
Environmental Protection Administration pursuant to the Toxic Substance
Control Act (PL 94-469). Supplier further warrants that each an every
chemical substance constituting or contained in the product(s) sold or
otherwise transferred pursuant to this Agreement is on the list of chemical
substances compiled and published by the Administrator of the Environmental
Protection Administration pursuant to the Toxic Substance Control Act (PL
94-469).
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12.3) Radiation Control for Health and Safety Act.
Supplier warrants that goods to be furnished under this order will meet
all requirements established under standards issued pursuant to authority
contained in the Radiation Control for Health and Safety Act of 1968.
Supplier further agrees to indemnify and hold harmless Contractor for all
damages assessed against Contractor as a result of Supplier's failure to
comply with the laws, regulations and standards issued thereunder and for
the failure of the items furnished under this Agreement to so comply.
12.4) Occupational, Health and Safety-Radiation Control.
Supplier agrees to comply with the provisions of the Occupational
Safety and Health Act of 1970 and the standards and regulations issued
thereunder and certifies that all items furnished pursuant to this
Agreement will conform to and comply with said standards and regulations.
12.5) Intentionally Deleted.
12.6) Intentionally Deleted.
12.7) Equal Employment and Minority Suppliers.
Unless exempt, the Equal Opportunity Clause required by Executive Order
11246, as amended, Section 503 of the Rehabilitation Act of 1973, as
amended, and the Vietnam Era Veterans Readjustment Assistance Act of 1974,
as amended (38 U.S.C. 2012), and any rules, orders, or regulations issued
thereunder, are incorporated by Reference, and Supplier shall be bound by
and shall comply with them as if the same were fully set forth naming
Supplier as "contractor".
12.8) Small Business Concern Utilization.
The Supplier agrees to accomplish the maximum amount of subcontracting
to small business concerns that the Supplier finds to be consistent with
the efficient performance of this Agreement.
315
13) Assignment.
Supplier 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. Nothing in this paragraph 13 shall be
construed to prevent Supplier as a consolidator from contracting with his
suppliers and subcontractors.
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.
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.
316
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 reasonable 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 any of the 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.
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.
317
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.
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.
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.
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.
Supplier and Contractor agree that no acknowledgment or other information
concerning this Agreement and the supplies or services provided hereunder will
be made public without the prior written agreement of the other party.
318
IN WITNESS WHEREOF, we have hereunto set our hands as of this 31st day of
August, 1999.
General Contractor Supplier
Telesource International, Inc. P.W.S. International, Inc.
By: ____________________Signatory, By: ____________________ Signatory,
Printed: _________________ Printed: _________________
Its: ____________________ Title Its: ____________________ Title
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Jpk:Comm:Doors SubK:Final November 24, 1999 17:17 PM
Schedule of Exhibits
Exhibit "A" Plans, Drawings, Specifications and Design Documents
Exhibit "B" Applicable Provisions of RFP for Department of State
Contract
Exhibit "C" Schedule of Applicable Federal Acquisition Regulations
Exhibit "D" Items Included In The Scope Of Work
Exhibit "E" [Intentionally Deleted]
Exhibit "F" [Intentionally Deleted]
Exhibit "G" Unit Price Breakdown
320
Plans, Drawings, Specifications and Design Documents Exhibit "A"
The following engineering specifications and documents are incorporated
herein by reference and hereby become an integral part of this Agreement:
1. [The bidding documents provided to date to the Supplier in connection with
this agreement, which both parties acknowledge to be in their possession].
1.
321
Department of State Request for Proposal Exhibit "B"
[The Department of State Request for Proposal is in the possession of both
parties and is incorporated herein by reference and hereby become an integral
part of this Agreement.]
322
Exhibit "C"
Federal Acquisition Regulations
The provisions of the Federal Acquisition Regulations (FAR) listed below and any
other attached articles and provisions, if any, as applicable, and as in effect
on the date of this Agreement (except as required to be changed by statute), are
incorporated in this Agreement by reference with the same force and effect as
though herein set forth in full. All such clauses shall, with respect to the
rights, duties and obligations of Contractor and the Supplier hereunder, be
interpreted and construed in such manner as to recognize and give effect to the
contractual relationship between Contractor and the Supplier under this
agreement and the rights of the U.S. Government with respect thereto under the
prime contract from which the agreement is being funded. As used therein the
term "the Contractor" and equivalent terms shall mean the Subcontract and the
terms "the Government" and "the Contracting Officer" and equivalent terms shall
include the Contractor and the Contractor's authorized representative hereunder,
respectively, except under those clauses relating to the rights to audit or
examine the Supplier's financial records, and all other clauses noted with an
asterisk (*), in which case the terms "the Government" and "the Contracting
Officer" shall mean the U.S. Government and the Contracting Officer under the
prime contract, respectively. The word "contract" and like terms shall mean this
agreement.
52.202-01 Definitions
52.203-01 Officials Not to Benefit
52.203-03 Gratuities
52.203-05 Covenant Against Contingent Fees
52.212-08 Priorities, Allocations, and Allotments
52.215-01 Examination of Records by Comptroller General
52.215-02 Audit - Negotiation
52.215-22 Price Reduction for Defective Cost or Pricing Data
52.215-23 Price Reduction for Defective Cost or Pricing Data -
Modification
52.215-24 Supplier Cost or Pricing Data
52.215-25 Supplier Cost or Pricing Data - Modification
52.215-30 Waiver of Facilities Capital Cost of Money
52.216-07 Allowable Cost and Payment
323
52.216-08 Fixed Fee
52.219-08 Utilization of Small Business Concerns and Small
Disadvantaged Business Concerns
52.219-13 Utilization of Women-Owned Small Businesses
52.220-01 Preference for Labor Surplus Area Concerns
52.220-03 Utilization of Labor Surplus Area Concerns
52.222-02 Payment for Overtime Premiums "overtime premium cost does
not exceed ZERO."
52.222-03 Convict Labor
52.222-26 Equal Opportunity
52.222-35 Affirmative Action for Special Disabled and Vietnam Era
Veterans
52.222-36 Affirmative Action for Handicapped Workers
52.227-01 Authorization and Consent - Alternate I
52.227-02 Notice and Assistance Regarding Patent and Copyright
Infringement
52.227-7013 Rights in Technical Data and Computer Software
52.227-7018 Restrictive Markings on Technical Data
52.227-7029 Identification of Technical Data
52.227-7030 Technical Data - Withholding of Payment
52.228-07 Insurance - Liability to Third Persons
52.230-3 Cost Accounting Standards
52.230-4 Administration of Cost Accounting Standards
52.231-7000 Supplemental Cost Principles
52.232-09 Limitation on Withholding of Payments
52.232-17 Interest
52.232-20 Limitation of Cost
52.232-23 Assignment of Claims
52.242-01 Notice of Intent to Disallow Costs
52.242-7000 Submission of Commercial Freight Bills to the General
Services Administration for Audit
324
52.243-2 Changes - Cost Reimbursement - Alternate V
52.243-7001 Pricing of Adjustments
52.244-02 Subcontracts under Cost-Reimbursement and Letter Contracts
52.245-05 Government Property (Cost Reimbursement, Time-and-
Material, or Labor-Hour Contracts)
52.247-01 Commercial Xxxx of Lading Notations
52.249-06 Termination (Cost Reimbursement)
52.249-14 Excusable Delays
52.251-7000 Ordering from Government Supply Sources
325
Items Included In The Scope Of Work Exhibit "D"
The Work shall include the supply, required testing, and delivery to Contractor
of the following items:
[See Exhibit "G".]
326
Unit Price Breakdown Exhibit "G"
The following supplier Quotes (in the possession of both parties) include unit
prices which comprise all direct and indirect costs, overhead, profit,
supervision, shop drawings, testing, and incidental costs. It is understood that
these unit prices represent the total cost to the Supplier for determining
progress payments, and shall be the basis of good faith negotiated additions or
deductions from the Contract Price at any time during the Work. The Quotes
include one or more unit price Alternate Options which may or may not be
exercised by the Contractor. In the event that the Quotes contradict each other,
the newest Quote shall govern.
2. Supplier Quote Dated October 17, 1998 and consisting of eleven pages.
3. Supplier Quote Dated August 4, 1998 and consisting of three pages.
4. Supplier Quote Dated July 31, 1998 and consisting of eleven pages.
5. Supplier Quote Dated July 17, 1998 and consisting of eleven pages.
6. Supplier Quote Dated July 8, 1998 and consisting of one page.
7. Developer Correspondence Dated August 4, 1999 (a null and void Purchase
Order) and August 7, 1999.
327
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TELESOURCE INT'L., INC. PURCHASE ORDER
-------------------------------------------------------------------------------
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000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
Fax: (000) 000-0000
Page One of Five
TO: P.O. NUMBER 3404 Change Order No.1
P.W.S. International, Inc. P.O. DATE October 12, 1999
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Mr. Xxxx Xxxxxx
Phone: 000-000-0000 Fax: 000-000-0000
------------------------------------------------
REQUISITIONED BY SHBC
Xxxxx Xxxx
SHIP BY November 18, 1999
SHIP VIA Ocean Freight
F.O.B. C & F Kuwait
SHBC P.O. USH/166-A/4/99
Ship To: American Embassy Kuwait, State of Kuwait TERMS Letter of Credit
Consigned To:
American Embassy Kuwait, State of Kuwait
Attn: FBO / H.P.
Contract No. S-FBOAD95COO65
Bayan, Kuwait
Notifying Party:
Sayed Xxxxx Xxxxxxxxx & Sons C.O. W.L.L.
X.X. XXX 0000
Xxxxx - 00000, Xxxxxx
Phone: (000) 000-0000/2/3
Fax: (000) 000-0000 or 000-0000
Attention: Xx. Xxxxx Xxxx
Shipping Marks: American Embassy Kuwait
State of Kuwait
Purchase order number must appear on all
forms relating to this order.
-
QTY UNIT DESCRIPTION PRICE AMOUNT
THIS CHANGE ORDER IS SUBJECT TO THE TERMS AND CONDITIONS
OF THE AGREEMENT DATED AUGUST 31, 1999 WHICH IS MADE A
NECESSARY AND INTEGRAL PART OF THIS CHANGE ORDER AND
WHICH IS MODIFIED AS NECESSARY TO ENCOMPASS THIS CHANGE
ORDER
L.S. L.S. Supply of Steel Doors &
Frames as per the Section $ 36,778.00 $ 36,778.00
# 08110 and approved
Drawings and Schedules
L.S. L.S. Supply of Wood Doors as
per Xxxxxxx # 00000 and $104,538.00 $104,538.00
approved Drawings and
Schedules
L.S. L.S. Supply of Aluminum
Entrances & Windows as per $738,387.00 $738,387.00
Section #08410 and approved
Drawings and Schedules
Schedules S (doors and
windows to be Factory Glazed)
1 No. Supply of Overhead Coiling
Doors, Section #08331 $5,666.00 $5,666.00
Door Type 45, 2500mm x 2670mm
328
TELESOURCE INT'L., INC. PURCHASE ORDER
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
Fax: (000) 000-0000
Page Two of Five
TO: P.O. NUMBER 3404 Change Order No. 1
P.W.S. International, Inc. P.O. DATE October 12, 1999
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Mr. Xxxx Xxxxxx
Phone: 000-000-0000 Fax: 000-000-0000
REQUISITIONED BY SHBC
Xxxxx Xxxx
SHIP BY November 18, 1999
SHIP VIA Ocean Freight
F.O.B. C & F Kuwait
SHBC P.O. USH/166-A/4/99
Ship To: American Embassy Kuwait, State of Kuwait TERMS Letter of Credit
Consigned To:
American Embassy Kuwait, State of Kuwait
Attn: FBO / H.P.
Contract No. S-FBOAD95COO65
Bayan, Kuwait
Notifying Party:
Sayed Xxxxx Xxxxxxxxx & Sons C.O. W.L.L.
X.X. XXX 0000
Xxxxx - 00000, Xxxxxx
Phone: (000) 000-0000/2/3
Fax: (000) 000-0000 or 000-0000
Attention: Xx. Xxxxx Xxxx
Shipping Marks: American Embassy Kuwait
State of Kuwait
Purchase order number must appear on
all forms relating to this order.
QTY UNIT DESCRIPTION PRICE AMOUNT
3 No. Roof Hatches as per Section #07720, MS-50 3'0 x 2'6 and L.S. $2,818.00
L.S. L.S. Finish Hardware as per Section #08410 & #08710 and $84,056.00 $84,056.00
approved Hardware Schedules
Ref: PWS Int'l Quotation dated Oct 17-98 (copy attached)
L.S. L.S. C/S Model A4115 4" deep extruded aluminum louvers with $2,865.00
Kynar 500 finish color Yorktown. Louvers to have blank off
panels and screens as indicated.
2 EA 980mm dia. round louvers with blank off panel
1 EA 410 x 2025mm louver with blank off panel
2 EA 590mm dia. round louvers with bird screen
(Ref: Your fax dated 13 Sept-99)
L.S. L.S. 2 XX Xxxxx D-50 Hatches 2m x 2m Aluminum Hatch $6,818.00
12" Curb Zinc Hardware
(Ref: Your fax dated 4 Oct-99)
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329
TELESOURCE INT'L., INC. PURCHASE ORDER
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
Fax: (000) 000-0000
Page Three of Five
TO: P.O. NUMBER 3404 Change Order No. 1
P.W.S. International, Inc. P.O. DATE October 12, 1999
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Mr. Xxxx Xxxxxx
Phone: 000-000-0000 Fax: 000-000-0000
REQUISITIONED BY SHBC
Xxxxx Xxxx
SHIP BY November 18, 1999
SHIP VIA Ocean Freight
F.O.B. C & F Kuwait
SHBC P.O. USH/166-A/4/99
Ship To: American Embassy Kuwait, State of Kuwait TERMS Letter of Credit
Consigned To:
American Embassy Kuwait, State of Kuwait
Attn: FBO / H.P.
Contract No. S-FBOAD95COO65
Bayan, Kuwait
Notifying Party:
Sayed Xxxxx Xxxxxxxxx & Sons C.O. W.L.L.
X.X. XXX 0000
Xxxxx - 00000, Xxxxxx
Phone: (000) 000-0000/2/3
Fax: (000) 000-0000 or 000-0000
Attention: Xx. Xxxxx Xxxx
Shipping Marks: American Embassy Kuwait
State of Kuwait Purchase order number must
appear on all forms relating to this
order.
QTY UNIT DESCRIPTION PRICE AMOUNT
L.S. L.S. Architectual Pottery $3,165.00
3 EA KP-19B Classic Greek 33" x 26" 3 EA KP-6A
Classic Greek 24" x 26" 3 EA KP-4C Classic Greek
16" x 20" (Ref: Your fax dated 5 Sept-99)
L.S. L.S. 4 EA Windermire Benches Style 4503 $3,455.00
(Ref: Your fax dated 5 Sept-99)
L.S. L.S. Furnish and Install specified Glass in all the exterior $160,344.00
Windows and Doors to have 5/16" clear heat
strengthened Lamintated Glass with .060 PVB Vinyl Inner
Layer as per attached Specifications (3 pages)
C & F Kuwait Subtotal $1,148,890.00
Total $1,148,890.00
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330
TELESOURCE INT'L., INC. PURCHASE ORDER
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
Fax: (000) 000-0000
Page Four of Five
TO: P.O. NUMBER 3404 Change Order No. 1
P.W.S. International, Inc. P.O. DATE October 12, 1999
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Mr. Xxxx Xxxxxx
Phone: 000-000-0000 Fax: 000-000-0000
REQUISITIONED BY SHBC
Xxxxx Xxxx
SHIP BY November 18, 1999
SHIP VIA Ocean Freight
F.O.B. C & F Kuwait
SHBC P.O. USH/166-A/4/99
Ship To: American Embassy Kuwait, State of Kuwait TERMS Letter of Credit
Consigned To:
American Embassy Kuwait, State of Kuwait
Attn: FBO / H.P.
Contract No. S-FBOAD95COO65
Bayan, Kuwait
Notifying Party:
Sayed Xxxxx Xxxxxxxxx & Sons C.O. W.L.L.
X.X. XXX 0000
Xxxxx - 00000, Xxxxxx
Phone: (000) 000-0000/2/3
Fax: (000) 000-0000 or 000-0000
Attention: Xx. Xxxxx Xxxx
Shipping Marks: American Embassy Kuwait
State of Kuwait
Purchase order number must appear on
all forms relating to this order.
QTY UNIT DESCRIPTION PRICE AMOUNT
Terms of Payment
By L/C in favor of P.W.S. International Inc.,
X.X. Xxx 000000, Xxxxxxxxx X.X. 00000, XXX, to
cover 95% of Value of P.O. against submission of
Shipping Documents. 5% Payable via Wire Transfer
within 30 Days of receipt of the Materials on
Site and their inspection. Notes Fabrication of
Wooden Doors & Steel Doors and Frame, Overhead
Coiling Door, Aluminum Windows and Roof Hatches
can be commenced. PWS has to resolve FBO's
comments for Aluminum Doors and Hardware and
provide us the approved Submittals before
fabrication and procuments. Hardware Samples to
be provied to US Government for final acceptance
and complete set of specialized tools and
maintance instructions to be provived as per
Section # 08710-1.6. Glazing to be provided as
per Section #08800 and approved samples and
drawings.
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331
TELESOURCE INT'L., INC. PURCHASE ORDER
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
Fax: (000) 000-0000
Page Five of Five
TO: NUMBER 3404 Change Order No. 1
P.W.S. International, Inc. P.O. DATE October 12, 1999
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Mr. Xxxx Xxxxxx
Phone: 000-000-0000 Fax: 000-000-0000
REQUISITIONED BY SHBC
Xxxxx Xxxx
SHIP BY November 18, 1999
SHIP VIA Ocean Freight
F.O.B. C & F Kuwait
SHBC P.O. USH/166-A/4/99
Ship To: American Embassy Kuwait, State of Kuwait TERMS Letter of Credit
Consigned To:
American Embassy Kuwait, State of Kuwait
Attn: FBO / H.P.
Contract No. S-FBOAD95COO65
Bayan, Kuwait
Notifying Party:
Sayed Xxxxx Xxxxxxxxx & Sons C.O. W.L.L.
X.X. XXX 0000
Xxxxx - 00000, Xxxxxx
Phone: (000) 000-0000/2/3
Fax: (000) 000-0000 or 000-0000
Attention: Xx. Xxxxx Xxxx
Shipping Marks: American Embassy Kuwait
State of Kuwait
Purchase order number must appear on
all forms relating to this order.
QTY UNIT DESCRIPTION PRICE AMOUNT
List of Documents:
3 Sets of Original Invoices
One Original Certificate of Origin
3 Original sets of Packing List
3 Original sets of On-Board Xxxx of Lading
The shipping documents shall be consigned to:12
American Embassy Kuwait State of Kuwait
Attn: FBO/H.P.
The On-Board Xxxx of Lading and Invoice should be:
"Staff Diplomatic Housing U.S. Embassy", Bayan,
Kuwait, Contract No. S-FBOAD95C0065. Also
description of Goods should be "Building Materials".
Notifying party must be Sayed Xxxxx Xxxxxxxxx &
Sons Co., X.X. Xxx 0000, Xxxxx-00000, Xxxxxx
Tel: (000) 000-0000/2/3 Fax: (000) 000-0000/000-0000
Copy of all shipping documents should be sent to
SHBC by DHL as soon as the shipments is on
board.
Shipment must be through US Flag Ships.
Authorized by: Xxxxxxx X. Xxxxxxxxxx Dated: 10-12-99
Accepted by: Xxxx Xxxxxx at PWS Int'l., Inc. Dated:
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332
