Exhibit 10(x)
AGREEMENT
THIS AGREEMENT, is entered into as of this ____ day of
________________, 1995, by and between IDAHO POWER COMPANY, a
corporation, whose address is 0000 Xxxxx Xxxxxx, Xxxxx, Xxxxx 00000,
("IPCO"), and MICRON TECHNOLOGY, INC., a corporation, whose address is
0000 Xxxxx Xxxxxxx Xxx, Xxxxx, Xxxxx 00000-0000, ("Micron"). IPCO and
Micron may also be referred to hereafter individually as "Party" or
collectively as the "Parties".
W I T N E S S E T H:
The Parties to this Agreement, each in consideration of the
undertakings, promises and agreements on the part of the other herein
contained, do hereby undertake, promise and agree as follows:
I.
In consideration of the payments to be made as hereinafter
provided, IPCO agrees to furnish all labor, equipment, supervision and
such materials as are needed for the performance of the following
described work:
1. Design a 138-12.47 kV substation for Micron Technology,
Inc.'s manufacturing facility in Lehi, Utah ("Micron Lehi Substation")
similar to the substation designed and built by IPCO near Boise, Idaho
for Micron which is known as the D-RAM Substation. The configuration
of the Micron Lehi Substation will be as set forth in Exhibit "A"
hereto. Inasmuch as the Micron Lehi Substation will be served from
PacifiCorp's transmission grid, the design of the Micron Lehi
Substation will be subject to input from PacifiCorp and/or the City of
Lehi. IPCO shall not be liable to Micron for failure to complete the
design of the Micron Lehi Substation in a timely manner where such
failure is due to the failure of PacifiCorp or the City of Lehi to
provide IPCO with reasonably needed information or services, or other
reasons beyond the reasonable control of IPCO.
2. Inspect and test the Micron Lehi Substation which shall
include, but not be limited to, a 138 kV breaker and a half bus for
three 138 kV lines, capacitor bank(s), four 138-12.47 kV 28 MVA
transformers (designed for eight 138-12.47 kV transformers, but only
four installed), a 15 kV main bus and transfer bus for four 15 kV
double ended metal clad switchgear units, four 15 kV double ended metal
clad switchgear units, protective equipment, communication systems,
SCADA, and station batteries. IPCO will provide Micron with test
reports as the work progresses. IPCO shall not be liable to Micron for
failure to inspect and test the Micron Lehi Substation in a timely
manner where such failure is due to the discovery of defective
equipment, faulty construction or incomplete construction, or other
reasons beyond the reasonable control of IPCO. Notwithstanding
anything in this Agreement to the contrary, IPCO shall not be liable in
any way for defects in equipment produced by others, or faulty
construction or incomplete construction built by others. Such
liability shall remain with the manufacturers and the construction
contractors. IPCO hereby passes through all applicable manufacturers'
warranties to Micron.
3. Furnish the bulk of the equipment to be installed in the
Micron Lehi Substation, including, but not limited to, the following:
Four 138-12.47 kV, 16.8/22.4/28.0 MVA power transformers; Four
metalclad protected aisle 15 kV switchgear units; Seventeen 138 kV
power circuit breakers; Station bus structures, insulators, bus and bus
fittings; 138 kV and 15 kV air break switches; Station current and
potential transformers; Station battery; Station service transformers;
AC and DC station service load centers; and station protection and
control equipment. All purchases of equipment and materials, unless
already ordered under Micron's authorization letter dated June 27,
1995, shall be approved by Micron prior to IPCO ordering such equipment
or materials. IPCO shall not be liable to Micron for failure to
furnish the bulk of the equipment to be installed in the Micron Lehi
Substation in a timely manner where such failure is due to
manufacturers producing defective equipment, manufacturers delivering
equipment late, or other reasons beyond the reasonable control of IPCO.
4. Negotiate with PacifiCorp to obtain from PacifiCorp its
reliability needs and required system studies relating to the Micron
Lehi Substation for Micron plant loads of 100 MW. IPCO shall not be
liable to Micron for failure to complete the design of the Micron Lehi
Substation in a timely manner where such failure is due to the failure
of PacifiCorp to provide IPCO with reasonably needed information or
services, or other reasons beyond the reasonable control of IPCO.
5. Use reasonable good faith efforts in coordinating
engineering with PacifiCorp in upgrading protective relaying and
communications at PacifiCorp's 90th South and Xxxx substations. IPCO
shall not be liable to Micron for failure to complete the design of the
Micron Lehi Substation in a timely manner where such failure is due to
the failure of PacifiCorp to provide IPCO with reasonably needed
information or services, or other reasons beyond the reasonable control
of IPCO.
6. Design, inspect and test a 138-12.47 kV temporary
substation ("Temporary Substation") for Micron's interim power
requirement of 20 MVA. IPCO shall not be liable to Micron for failure
to complete the design of the Temporary Substation in a timely manner,
or for failure to inspect or test, where such failure is due to the
failure of PacifiCorp or the City of Lehi to provide IPCO with
reasonably needed information or services, the discovery of defective
equipment, faulty construction or incomplete construction, or other
reasons beyond the reasonable control of IPCO.
7. Provide Micron with all manufacturer's equipment
manuals.
II.
IPCO shall use reasonable best efforts to perform the work
described in Article I herein so as to secure the substantial
completion of the Temporary Substation on or before February 15, 1996,
and of the Micron Lehi Substation on or before May 1, 1996; subject to
prompt delivery of equipment and information, completion of
construction in a timely manner, and other conditions beyond the
reasonable control of IPCO. All work contracted out to others by IPCO
shall be approved in advance by Micron.
III.
Micron agrees to pay, and IPCO agrees to accept, as full
compensation, satisfaction and discharge for the work described in
Article I herein, compensation on a cost plus basis which shall
reimburse IPCO for all its costs incurred in performing work under this
Agreement and provide IPCO with a profit. The amount of such
compensation shall be determined as follows:
IPCO's labor expenses related to its performance under this
Agreement for the use of IPCO employees shall be calculated by
multiplying the number of hours each employee spent on work under this
Agreement by each employee's respective hourly rate of pay and a factor
of three and one-half (3.50). IPCO's expenses related to its
performance under this Agreement for services provided by others shall
be calculated by multiplying the amount IPCO paid for those services by
a factor of 1.05. IPCO's expenses related to its performance under
this Agreement for materials purchased by IPCO shall be calculated by
multiplying the amount IPCO paid for those materials by a factor of
1.10. All other expenses of IPCO related to its performance under this
Agreement, including but not limited to meals, travel expenses, and
expenses of settling or defending claims and lawsuits, shall be
determined by actual costs.
IPCO will send an invoice to Micron each month for IPCO's
expenses as calculated above. All invoiced amounts shall be due and
payable within thirty-five (35) days of the invoice being received by
Micron. All amounts overdue shall accrue interest at the rate of
eighteen percent (18%) per annum, or the maximum rate allowed by law,
whichever is less. Micron shall reimburse IPCO for all costs and
expenses, including reasonable attorney fees, incurred by IPCO in the
collection of such overdue amounts.
IV.
Upon each payment by Micron to IPCO hereunder, title and
ownership of equipment, materials and supplies covered by such payment
shall pass to Micron.
Upon delivery to a carrier for transit, liability associated
with equipment, materials and supplies furnished by IPCO under this
Agreement shall pass to Micron.
V.
1. Micron has implemented and paid the premiums for an
owner controlled insurance program ("OCIP") as set forth in Exhibit B
to this Agreement for construction activities occurring on the job
site. The OCIP provides insurance coverage for the benefit of Micron,
IPCO and their subcontractors (unless specifically excluded) who have
employees performing activities on the job site. Notwithstanding the
OCIP, IPCO and its subcontractors who provide any on-site services
shall provide certain other insurance coverages outside the OCIP as
required by Exhibit B to this Agreement for all activities, including
off-site activities. IPCO shall be responsible to ensure that it and
its subcontractors comply in all respects with the applicable
requirements of the OCIP as described in Exhibit B to this Agreement
before performing any on-site activities at the job site.
2. IPCO assumes full responsibility to determine whether
the insurance required by Exhibit B to this Agreement is in force.
Written proof satisfactory to Micron of compliance with its insurance
requirements shall be furnished to Micron before any on-site activities
of IPCO occur at the job site. At the request of Micron at any time
during the performance of the work under this Agreement, IPCO shall
provide certificates of insurance covering the foregoing insurance
requirements and reflecting any special agreements with respect
thereto, and copies of such insurance policies shall be available for
Micron's review at IPCO's Boise Corporate Office. If IPCO fails to
procure and maintain policies of insurance or deliver certificates of
insurance in accordance with the terms of Exhibit B to this Agreement,
then at Micron's option, Micron may, upon ten (10) calendar days
written notice to IPCO, obtain such insurance at IPCO's cost and
expense.
3. Any type of insurance or any increase of limits of
liability not described in this Article V or Exhibit B to this
Agreement which IPCO or any subcontractor requires for its own
protection or on account of any statute, with the exception of
automobile insurance purchased in conjunction with leasing vehicles
solely for the work, shall be its own responsibility and at its own
expense.
4. While it is the intent of Micron to keep the OCIP in
force throughout the term of the work under this Agreement, Micron
reserves the right to terminate or modify the OCIP or any portion
thereof. To exercise this option, Micron shall provide at least forty-
five (45) calendar days' advance written notice to IPCO and all
subcontractors covered under the OCIP. IPCO and its subcontractors
shall be required to immediately obtain replacement insurance coverage
and the reasonable cost of such replacement insurance will be
reimbursed by Micron. Written evidence of such insurance satisfactory
to Micron shall be provided to Micron prior to the actual termination
date of the OCIP.
5. The carrying of the insurance provided for herein shall
in no way be interpreted as relieving any insured from any
responsibility or liability under this Agreement or any applicable law,
statute, regulation or order.
VI.
Both Micron and IPCO agree to indemnify, protect, defend and
hold harmless the other Party, and the directors, officers, agents,
employees, successors and assigns of the other Party, from and against
any and all third party claims, demands, suits, proceedings, damages,
losses, fines, penalties and liabilities, including attorney fees,
which (a) result from injury to or death of any person, or damage to or
loss of property, and (b) arise from or relate to performance of the
Parties under this Agreement, to the extent such claims, demands,
suits, proceedings, damages, losses, fines, penalties and liabilities
are due to the negligence of the indemnifying Party or the infringement
of any patent, trade secret or copyright by the indemnifying Party, and
provided that such claims, demands, suits, proceedings, damages,
losses, fines, penalties and liabilities are not covered by the owner
controlled insurance program and are not limited by Article VII below.
VII.
Notwithstanding any statement in this Agreement to the
contrary, IPCO's total liability arising out of or resulting from this
Agreement, whether based on theories of contract, tort or otherwise,
shall under no circumstances exceed the insurance coverage required by
Exhibit B to this Agreement plus IPCO's profit under this Agreement.
In no event shall IPCO be liable to Micron for special, incidental or
consequential damages, including, without limitation, loss of profits
or revenue, or loss of use of equipment. IPCO shall not be held
responsible for Micron's improper use of documents.
VIII.
IPCO shall maintain records and accounts of all invoiced
costs in accordance with good accounting practices. Micron shall have
access to such records and accounts during normal business hours for
one year after completion of the Micron Lehi Substation, to the extent
required to verify that invoiced costs were incurred.
IX.
No necessity for an extension of time is anticipated, but if
circumstances beyond the reasonable control of IPCO should arise,
which circumstances would entitle IPCO to a reasonable extension of
time, such an extension will be granted.
X.
Micron and IPCO shall hold confidential all portions of the
work product which are identified in writing by the other party to be
proprietary information. Neither Micron or IPCO shall disclose
proprietary information to third parties except as may be necessary in
connection with the services provided hereunder, and in any event shall
take reasonable steps to protect the secrecy and confidentiality of the
proprietary information. Disclosures may be made internally to the
employees of either party on a "need to know" basis.
XI.
IPCO shall comply with applicable industry standards, and all
safety standards and accident prevention regulations promulgated by
federal, state or local authority and shall comply specifically with
all the rules, regulations, and any record keeping responsibilities
that may be required by the United States Department of Labor,
Occupational Safety & Health Act, and any amendments or revisions
thereto, the National Electric Safety Code and the National Electrical
Code. IPCO shall also comply with all Micron safety rules and
regulations made known to IPCO by Micron. IPCO agrees to perform all
labor and services hereunder in a good and workmanlike manner.
XII.
Neither of the Parties hereto shall be liable to the other
party for failure to comply with any of the terms and conditions of
this Agreement where such failure is caused by act of God, court order,
governmental regulation or requirement, strike or labor difficulty,
fire, flood, windstorm, breakdown, or other damage to the work, or by
any other existing or future cause beyond the reasonable control of the
Party at fault, including, but not limited to, the failure of a
manufacturer or carrier to deliver equipment on time, the failure of
PacifiCorp or the City of Lehi to provide reasonably needed information
or services in a timely manner, and the failure of a governmental
authority to issue a necessary permit.
XIII.
This Agreement and the obligation of the Parties pursuant
thereto, shall be subject to all lawful orders, rules and regulations
of any regulatory authority having jurisdiction over the subject matter
hereof. This Agreement shall be construed and governed by the laws of
the state of Idaho.
XIV.
Upon completion of the work described in Article I of this
Agreement, IPCO shall remove all equipment and shall satisfactorily
dispose of all rubbish resulting from the operations under this
Agreement.
XV.
IPCO agrees to perform the work contemplated under this
Agreement as an independent contractor, and not as a subcontractor,
agent or employee of Micron.
XVI.
This Agreement shall inure to the benefit of and be binding
upon the Parties hereto, their successors and assigns. This Agreement
shall not be assigned by Micron or IPCO without the prior written
consent of the other, which consent shall not be unreasonably withheld.
XVII.
This Agreement sets forth the entire understanding and
agreement of Micron and IPCO with regard to the subject matter hereof.
Micron and IPCO shall not be bound by or be liable for any statement,
representation, promise, inducement or understanding of any kind or
nature not set forth herein. No changes, amendments or modifications
of any of the terms or conditions of this Agreement shall be valid
unless reduced to writing and signed by both Parties.
IN WITNESS WHEREOF, the Parties hereto have caused their duly
authorized representatives to sign this Agreement effective the day and
year first above written.
ATTEST: IDAHO POWER COMPANY
By:_______________________________
By:_________________________________
Vice President
ATTEST: MICRON TECHNOLOGY, INC.
By:__________________________________
By:_______________________________
Its:_________________________________
EXHIBIT A
[Graphics]
EXHIBIT B
Owner Controlled Insurance Program
A. Introduction and Definitions
Micron Technology, Inc., (Micron), is implementing an Owner Controlled
Insurance Program (OCIP) to furnish certain insurance for Work
performed on the Project Site for construction of its new plant near
Lehi, Utah.
The OCIP is for the benefit of Micron, Micron Construction, Inc.
(MCInc.), their Consultants, Contractors, and Subcontractors of all
tiers who have on-site employees, but only with respect to their Work
performed at the Project Site. The OCIP does not cover suppliers,
vendors, materials dealers, haulers, and transporters whose work
location is off the Project Site, and who merely pick up or deliver
materials, equipment, or supplies at the Project Site. However, if
such suppliers, vendors, or materials dealers install their product or
contract with subcontractors to install their product on the Project
Site, those employees or subcontractors' employees will be enrolled in
the OCIP. The OCIP will not include fabrication, manufacturing, or
other operations away from the Project Site.
For purposes of the OCIP, the following definitions apply:
Consultant
An individual, firm, or corporation with a contractual obligation with
Micron and/or MCInc. to perform specialized services required by the
Project, and whose employees are actively performing such Work at the
Project Site.
Contract
The written agreement or purchase order between Micron and/or MCInc.
and a Contractor, between a Contractor and a Subcontractor, or between
a Subcontractor and a Sub-subcontractor.
Contractor
An individual, firm, or corporation undertaking construction or other
services who has contracted directly with Micron and/or MCInc. to
perform some part of the Work required by the Project, and whose
employees are actively performing such Work at the Project Site.
Contract haulers, vendors, suppliers, materials dealers, or others
whose function is solely to make deliveries or supply materials or
equipment to the Project Site are not Contractors for purposes of this
OCIP. Vendors, suppliers, materials dealers or their subcontractors who
install their product at the Project Site will be included in the OCIP
for such on-site installation provided they meet enrollment
requirements.
OCIP
The Owner Controlled Insurance Program under which certain insurance
coverage is procured for Micron's and MCInc.'s benefit, and for the
benefit of its Consultants, Contractors, and Subcontractors enrolled in
the OCIP while performing Work at the Project Site.
OCIP Manager
Xxxxxxx & Xxxxxxx of WA, Inc.
Owner
Micron Technology, Inc. (Micron) , a Delaware corporation
General Contractor and Construction Manager
Micron Construction, Inc. (MCInc.)
Project
The specific construction work at Micron's new plant near Lehi, Utah to
be undertaken by the Contractor under its Contract with Micron and/or
MCInc.
Project Site
The site of construction, including all facilities described above.
Project Site includes the area of Work of all Consultants, Contractors,
and Subcontractors indicated on the engineers' plans and specifications
for the Project, the physical location at which Micron's facility will
be constructed, and areas immediately adjacent thereto, including local
roads and public easements in which Contractors and Subcontractors
perform Work under their respective Contracts. Project Site includes
Contractor staging areas in proximity to the area at which the facility
will be constructed as described in Contractors' bids or proposals, and
which are used exclusively by Contractors to perform Work under their
respective Contracts, but only if such area is so designated by MCInc.
as part of the Project Site prior to Contractor beginning work at that
location.
Project Safety Coordinator
The MCInc. employee assigned to this responsibility.
Subcontractor
An individual, firm, or corporation undertaking construction or other
services under Contract with a Contractor to perform some part of the
Work required by the Project, and whose employees are actively
performing such Work at the Project Site. Contract haulers, vendors,
suppliers, materials dealers, or others whose function is solely to
make deliveries or supply materials or equipment to the Project Site
are not Subcontractors for purposes of the OCIP. Vendors, suppliers,
materials dealers, or their subcontractors who install their product at
the Project Site will be included in the OCIP for such on-site
installation. The term Subcontractor includes Subcontractor of any
tier.
Work
Operations conducted at or from the Project Site, including operations
necessary or incidental thereto, but not including manufacturing,
fabrication or other operations on the regular premises of the
Contractor other than the Project Site.
B. Micron-Furnished Insurance
Micron, at its expense through the OCIP, has obtained the insurance
coverage shown in Paragraphs B.1., through B.5., for Contractor and its
Subcontractors for their Work at the Project Site. The following
description is for informational purposes only; the specific terms and
conditions of coverage are set forth in the respective insurance
policies comprising the OCIP which policies shall control the rights
and obligations of the "insured" parties hereunder.
1. Workers Compensation
Statutory coverage, limits, and benefits in conformance with the
Utah Workers Compensation Act. Coverage includes occupational
disease as defined by the Act. The coverage will be provided on a
standard NCCI coverage form in accordance with applicable laws of
the State of Utah. This insurance provides coverage only for on-
site activities.
2. Employers Liability
Coverage is provided with the following limits:
$2,000,000 each accident-bodily injury by accident
$2,000,000 each employee-bodily injury by disease
$2,000,000 annual aggregate-bodily injury by disease
3. Commercial General Liability
Coverage, excluding automobile liability, will be written on an
"occurrence" basis. The policy will include premises and
operations coverage, including premises medical, and
products/completed operations coverage extending for not less than
three (3) years after the completion of Contractor's Work and
acceptance by Micron and/or MCInc. Coverage will also include
personal injury liability, and blanket broad form contractual
coverage for liability assumed under an "insured" contract as
defined by the insurance policy. The policy will not contain
exclusions for Broad Form Property Damage, Independent
Contractors, or for the hazards commonly known as Explosion,
Collapse, and Underground (XCU). Employees are insureds under the
policy, and policy terms include "Separation of Insureds" as
defined by the standard ISO policy form. Coverage will not
include claims related to engineer's and architect's professional
liability, pollution or asbestos.
Policy limits are:
$2,000,000 each occurrence - bodily injury and property damage
$2,000,000 each occurrence - personal injury and advertising
liability
$4,000,000 general aggregate, each annual period
$4,000,000 products & completed operations aggregate, each annual
period
The limits apply collectively to all insureds.
The Commercial General Liability policy will be primary insurance
for claims arising from this Contract, and non-contributing with
respect to any other insurance carried by the Contractor for Work
performed at the Project Site.
4. Excess Liability
Excess liability insurance is provided in a combination of layers
which equal $50,000,000 per claim and annual aggregate. This
insurance is excess over the primary liability insurance policies
provided in the OCIP and listed in Subparagraphs B.2 and B.3. The
limits apply collectively to all insureds.
5. "All Risk" Builders Risk and Property Insurance with a limit
sufficient to cover property values at risk at the Project Site.
It will also provide coverage for equipment in transit to the
Project Site. Blanket waiver of subrogation will be provided
between all named insureds. This policy does not apply to
machinery, tools, equipment and other property not destined to
become a permanent part of the Project.
NO MOTOR VEHICLE LIABILITY INSURANCE COVERAGE WILL BE INCLUDED.
C. Contractor Furnished Insurance
Notwithstanding the OCIP, during the period that a Contract remains in
force, each Contractor shall maintain at its own expense the following
minimum insurance coverage and limits with separate policy forms and
insurers acceptable to Micron and/or MCInc.:
1. Automobile Liability Insurance for Contractor's activities on and
off the Project Site. A minimum of $1,000,000 combined single
limit for bodily injury and property damage per occurrence for
Contractor's owned, non-owned, and hired vehicles. Every
Contractor shall also require its Subcontractors and Sub-
subcontractors to carry such insurance. Micron, MCInc., their
directors, officers, employees and agents will be included as
additional insureds under the Contractor's automobile liability
insurance policy.
2. Workers Compensation and Employers Liability Insurance for
activities off the Project Site.
Utah statutory coverage and limits for Workers Compensation.
Employers Liability insurance with limits not less than:
$100,000 each accident-bodily injury by accident
$100,000 each employee-bodily injury by disease
$500,000 annual aggregate-bodily injury by disease
3. Aircraft Liability insurance, including Passenger Legal Liability
and Aircraft Hull insurance if Contractor uses owned or chartered
aircraft for Work on the Project. Policy limits will be not less
than:
$5,000,000 combined single limit for bodily injury and property
damage liability. Replacement cost of aircraft hull.
4. For those Contractors whose Scope of Work includes designing,
inspecting, testing and other related engineering work, the
following insurance coverage is also required:
Professional Liability insurance with minimum limits of liability
of $1,000,000 per claim and $1,000,000 in the aggregate. If the
insurance required by this section is obtained through a claims-
made type of policy, this coverage or its replacement shall have a
Retroactive Date of no later than the inception of the contract.
In addition to the above requirement, Contractor shall promptly
obtain a quotation for "project specific" Professional Liability
insurance coverage as follows: limits of liability of $10,000,000
per claim, $20,000,000 in the aggregate. The policy or its
replacement shall include a Supplemental Extended Reporting Period
of three (3) years. The final decision regarding the purchase of
project specific Professional Liability insurance coverage shall
be at the sole discretion of Micron. All costs related to the
purchase of such project specific insurance, including the
purchase of any Supplemental Extended Reporting Period, shall be
reimbursed to Contractor by Micron.
Before beginning Work, the Contractor will provide the OCIP Manager
with certificates of insurance evidencing coverages as listed in this
Paragraph C. The certificates will state that Contractor, or their
insurer, will provide sixty (60) days advance written notice to Micron
and/or MCInc. in the event Contractor's insurance policies are canceled
or not renewed, assigned, or changed in any manner that is materially
adverse to the any insureds under these policies. The certificates
will also name Micron, MCInc., their directors, officers, employees and
agents as additional insureds as required in Subparagraph C.1 above.
D. Subcontractor Furnished Insurance
Contractor will ensure that its Subcontractors comply with the
provisions contained in Paragraphs D through N of this OCIP Exhibit,
and maintain at their own expense during the period that their
subcontracts remain in force, the following minimum insurance coverage
and limits with policy forms and insurers acceptable to MCInc:
1. Automobile Liability Insurance for Subcontractor's activities on
and off the Project Site.
A minimum of $1,000,000 combined single limit for bodily injury
and property damage per occurrence for Subcontractor's owned, non-
owned, and hired vehicles. Micron, MCInc., their directors,
officers, employees and agents and Contractor will be included as
additional insureds under the Subcontractor's automobile liability
insurance policy.
2. Workers Compensation and Employers Liability Insurance for
activities off the Project Site.
Utah statutory coverage and limits for Workers Compensation.
Employers Liability insurance with limits not less than:
$100,000 each accident-bodily injury by accident
$100,000 each employee-bodily injury by disease
$500,000 annual aggregate-bodily injury by disease
3. Aircraft Liability insurance, including Passenger Legal Liability
and Aircraft Hull insurance if Subcontractor uses owned or
chartered aircraft for Work on the Project.
$5,000,000 combined single limit for bodily injury and property damage
liability. Replacement cost of aircraft hull.
Before beginning Work, the Subcontractor will provide the Contractor
with certificates of insurance evidencing coverages as listed in this
Paragraph D. Such certificates will state that Subcontractor, or their
insurer, will provide sixty (60) days advance written notice to
Contractor in the event Subcontractor's insurance policies are
canceled, not renewed, or materially reduced in coverage. The
certificates will also name Micron, MCInc., their directors, officers,
employees and agents and Contractor as additional insureds as stated
above.
E. Certificates and Policies
The OCIP Manager will provide Contractor and each of its Subcontractors
with an original workers compensation and employers liability policy,
and with appropriate certificates evidencing the liability insurance
coverage described in Paragraphs B.3., and 4., of this OCIP Exhibit.
The commercial general and excess liability insurance policies will be
available for the Contractor's review at Micron's Boise corporate
office.
Prior to the Contractor's entry onto the Project Site, Contractor will
provide the OCIP Manager with certificates evidencing Contractor's
insurance coverage described in Paragraph C. All insurance coverage
outlined above will be written by insurance companies meeting the OCIP
Manager's financial security requirements. Such policies will be
available for Micron's review at Contractor's corporate office.
F. Other Insurance
The OCIP as previously outlined is intended to afford broad coverage
and relatively high limits of liability, but may not provide all the
insurance needed by a Contractor or Subcontractor. Any insurance for
higher limits or other coverage which any Contractor or Subcontractor
may be required by law to carry (except any insurance that Contractor
may be required by law to carry specifically and uniquely to perform
Contractor's obligations under the Contract, or that is specifically
excepted under the Contract, including this Exhibit B) or may need for
its protection, shall be at its own expense.
G. Contractor Responsibilities
The Contractor and its Subcontractors are required to cooperate with
Micron and MCInc. and the OCIP Manager with regard to OCIP
administration and operation. The Contractors' and Subcontractors'
responsibilities will include, but not be limited to these activities:
- Complete and provide to OCIP Manager all forms and exposure
information necessary to enroll in the OCIP. Contractor will be an
OCIP Participant upon completion of all enrollment requirements
contained in this Exhibit, and in the OCIP Enrollment Booklet which
will be provided to the Contractor and each of its Subcontractors
following award of their respective Contracts. Contractor will receive
evidence of enrollment upon compliance with those requirements.
- Provide certificates of insurance for coverage required of the
Contractor in Paragraph C of this OCIP Exhibit, and collect
certificates from all subcontractors.
- Notify Micron and MCInc. in advance of its intent to award any
Subcontract. It is Micron's and MCInc.'s intent to enroll all
Contractors and Subcontractors, other than those expressly excluded by
Paragraph J. of this OCIP Exhibit into the OCIP.
- Bind each of its respective Subcontractors to the insurance,
indemnity, and hold harmless provisions of the Contract, including the
provisions of this OCIP.
- Not knowingly violate or permit violation of any conditions of the
OCIP policies of insurance, and at all times satisfy the requirements
of the insurance companies issuing them.
- Provide the OCIP Manager with accurate monthly payroll data and
other information for itself and its Subcontractors related to this
Project, and permit its books and records related to this Project to be
audited by the OCIP insurance company(ies) or their respective
representatives. The Contractor agrees to maintain separate copies of
payroll records and retain them for 3 years after final completion of
its Work under this Contract.
- Comply with applicable loss control (safety) and claim-reporting
procedures.
- Maintain an OSHA 200 Log and will provide monthly to MCInc. or the
OCIP Manager portions of the Log which relate to the Project Site.
H. Contract Price and Assignment of Return Premium, etc.
As noted above, Micron will provide the OCIP coverage listed in
Paragraph B for the benefit of the Contractor and Subcontractors at
Micron's expense. In consideration of Micron providing OCIP coverages,
the Contractor shall:
- Remove all applicable insurance costs from its contract price that
would duplicate or provide similar insurance coverages as are provided
for the Contractor in the OCIP.
- Assign to Micron all right, title and interest in and to any
return premiums, dividends, refunds, discounts and other credits due or
to become due under the OCIP insurance policies. The Contractor and
Subcontractors shall execute documents and agreements provided by the
OCIP Manager necessary to evidence such assignment.
I. Termination/Modification of the OCIP
While it is Micron's intent to maintain the OCIP throughout the term of
the construction period, insurance marketplace conditions or other
circumstances beyond Micron's control may require termination or
modification of the OCIP. If either circumstance occurs, Micron and/or
MCInc. will give 45 days advance written notice to the Contractor, and,
at its option, will provide replacement coverage or will require
Contractor to obtain replacement insurance coverage as required. If
Micron and/or MCInc. requires Contractor to obtain replacement
insurance, the actual, auditable cost of such approved replacement
insurance will be reimbursed by Micron or MCInc., throughout the
remaining term of the Contract. Contractor shall furnish written
evidence of such insurance to Micron and/or MCInc. before the OCIP's
actual termination date.
J. Excluded Contractors
- Subcontractors engaged in asbestos abatement will not be enrolled
in the OCIP. Asbestos abatement subcontractors will be required to
carry their own insurance at their own expense.
- Any contract valued at $10,000 or less is excluded from the OCIP.
- Notwithstanding other provisions of this OCIP Exhibit, Micron and
MCInc. reserve the right to exclude any other contractors from the
OCIP. Any such exclusion will be at Micron's and/or MCInc.'s sole
discretion.
K. Waiver of Recovery and Subrogation
Micron, MCInc., Contractor and Subcontractors will cause their
underwriters of insurance policies described in Paragraphs B., C., D.,
and F., to waive their rights of subrogation for losses, costs, and
expenses arising from the Work performed under a Contract, which rights
one party may have against the other. This waiver applies only to
personal injury, bodily injury, death, and property damage covered by
insurance as described in this OCIP Exhibit and occurring in the course
of the Contractor's operations under a Contract.
L. Separation of Insureds Clause
All policies required to be provided by Contractors and Subcontractors
shall be endorsed to state that the inclusion of more than one insured
under such insurance shall not operate to impair the rights of one
insured against another insured and (except for the applicable
aggregate policy limits) the coverage afforded by each insurance policy
shall apply as though a separate policy had been issued to each
insured.
M. Miscellaneous Provisions and Requirements
- The cost of the premiums for insurance provided under this OCIP
will be paid by Micron, and Micron will receive and pay, as the case
may be, all adjustments in those costs, whether by way of dividends,
audits, or otherwise.
- The Contractor recognizes and agrees that Xxxxxxx & Xxxxxxx of
Washington is the Broker of Record for this OCIP, and that the
Contractor will endeavor to notify Xxxxxxx & Xxxxxxx and request
correction of any insurance-related deficiencies, omissions, or errors
in the OCIP policies or certificates.
- Any portrayal of insurance policy coverage, terms, and conditions
contained in this contract is informational, and is not a binding
interpretation of coverage or conditions of the actual policies.
N. Liabilities and Obligations
The OCIP provided by Micron for the Contractor and its Subcontractors
is not intended to and will not in any manner limit or qualify the
duties, liabilities, and obligations assumed by the Contractor under
this Contract. Losses and claims against the Contractor that are in
excess of the policy limits or excluded from the insurance policies
described in this OCIP Exhibit are for the account of the Contractor
except as may be otherwise specified in the Contract.
The policies provided by the OCIP will be primary insurance and non-
contributing with respect to persons engaged in performance of work at
the Project Site.
