UNIFIED SCHOOL DISTRICT NO. 500,
WYANDOTTE COUNTY, KANSAS
ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT
SUBCONTRACTOR: THE XXXXX COMPANY
SCOPE: MECHANICAL
ADDRESS: 0000 Xxxxxxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
TELEPHONE: 913/000-0000 XXXXXXX #:_____________
FAX: 913/000-0000
This Engineering, Procurement and Construction Agreement ("Agreement") is
made effective as of March 31, 1998, by and between Onsite Energy
Corporation, a Delaware corporation having its principal offices at 000
Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000 ("Onsite"), and The
Xxxxx Company, a Kansas corporation having its principal place of business
at 0000 Xxxxxxxxxxx Xxxx, Xxxxxx Xxxx, XX 00000 ("Subcontractor").
SECTION 1. STATEMENT OF WORK. In exchange for the consideration set
forth in Section 3 below, Subcontractor agrees to furnish all materials,
labor, tools, equipment and supplies necessary to perform all work set
forth in EXHIBIT 1 attached hereto and incorporated herein (the "Work") for
the lighting efficiency project (the "Project") being implemented by Onsite
at the facilities set forth on EXHIBIT 2 attached hereto (the "Premises")
for Unified School District No. 500, Wyandotte County, Kansas ("Customer"),
all in accordance with the Contract Documents, which mean and include (i)
this Agreement and all exhibits, schedules and amendments hereto; (ii) the
scope of the Work attached hereto as EXHIBIT 1; and (iii) any final plans
and specifications as modified and approved by Onsite, Customer and
Subcontractor.
SECTION 2. PREVAILING WAGE. To the extent required by law, all Work shall
be performed in compliance with applicable prevailing wage laws.
SECTION 3. PAYMENTS. Onsite agrees to pay Subcontractor for the materials
furnished and the Work performed in accordance with this Agreement the sum
of One Million Three Hundred Eighty-One Thousand Four Hundred Fifty-Nine
Dollars ($1,381,459) (the "Contract Price"). Any changes to the Contract
Price will be in accordance with Section 6 herein. Unless otherwise
instructed by Onsite, Subcontractor shall initiate the Work upon receipt
from Onsite of a written notice to proceed (the "Notice to Proceed").
Onsite shall pay Subcontractor for the Work in accordance with the Project
Milestone Schedule below, unless the same is altered by written agreement
of the parties in accordance with this Section 3. Upon Completion (as
defined below) of the applicable portion of the Work in accordance with the
Project Milestone Schedule below, Subcontractor shall furnish Onsite a
detailed invoice (each an "Invoice") for such Work, accompanied by such
substantiating data as Onsite may reasonably require, including vendors and
subcontractor's lien releases and invoices. Onsite shall pay Subcontractor
the amount of each Invoice within thirty (30) days after Acceptance (as
defined below). Any Invoice not paid within thirty (30) days of Acceptance
shall be deemed delinquent and shall bear interest from the date of such
invoice at the rate of one and one-half percent (1.5%) per month until paid
in full. Such interest shall not exceed the maximum rate permitted by law.
In no case shall the information pertaining to Onsite payment delinquency
be construed as an alternative performance provision for payment due
Subcontractor.
Upon Final Acceptance, as defined below, Subcontractor shall provide to
Onsite an invoice (the "Final Invoice") (i) summarizing and reconciling all
previous payments on Invoices; and (ii) setting forth all amounts due and
owing by Onsite to Subcontractor for work performed by Subcontractor per a
Contract Change Order (as defined below) ("Contract Change Order Work").
Within thirty (30) days of the receipt and approval of the Final Invoice by
Onsite, Onsite shall pay Subcontractor (i) the remaining balance, if any,
of the Contract Price due and owing to Subcontractor; and (ii) any amounts
due and owing for Contract Change Order Work (the "Final Payment").
Payments will be made to Subcontractor in accordance with the following
Project Milestone Schedule:
1. Within forty-five (45) days of Subcontractor's
receipt of the Notice to Proceed (30%) $414,437.70
2. Upon Completion and Acceptance by Customer of the
following facilities: Arrowhead Elementary, Career Learning
Center, Coronado Elementary, Transportation, Whittier Elementary
School, Argentine Library, Central Middle School, Pearson
Elementary School, West Library $51,877.80
1. Upon Completion and Acceptance by Customer of the
following facilities: Argentine Middle School, Bethel Elementary
School, Grant Elementary, Xxxxx Xxxxxxx School, Rosedale Middle
School, Xxxxxxx Elementary School $135,538.20
2. Upon Completion and Acceptance by Customer of the
following facilities: Central Prevention, Xxxxxxx Elementary
School, Xxxxxx High School $156,465.60
3. Upon Completion and Acceptance by Customer of the
following facilities: Xxxxx Xxxxx Elementary, Xxxxx Elementary
School, Lindbergh Elementary School, Northwest Middle
School, Stoneypoint North, West Middle School $225,710.40
4. Upon Completion and Acceptance by Customer of the
following facilities: Main Library, Xxxxxx Elementary School,
Xxxxxxx Elementary School $144,766.20
5. Upon Completion and Acceptance by Customer of the
Following facilities: Storeroom, Xxxxxx Academy, Xxxx
Elementary, Washington High School, Xxxxxxx Elementary
School, Wyandotte High School $114,517.20
8. Upon Final Acceptance (as defined below)
by Customer of the Work (10%) $138,145.90
TOTAL: $1,381,459.00
Subcontractor and Onsite acknowledge that the facility groupings set forth
in each of the Milestones above may need to be revised after Subcontractor
commences performance of the Work in order to group together facilities
that are located near one another or facilities at which similar Work is
being performed by Subcontractor. In the event Subcontractor determines
that the above facility groupings should be revised, Subcontractor shall
notify Onsite, and provide to Onsite Subcontractor's proposed facility
groupings. Onsite shall promptly meet with Subcontractor regarding
Subcontractor's proposed facility groupings, and upon the agreement of the
parties to a revised facility grouping, and corresponding revised Milestone
payment schedule, the parties shall execute a written amendment to this
Agreement setting forth the revised Project Milestone Schedule.
"Acceptance" is contingent upon successful completion of some or all of the
Work, as applicable ("Completion"), including but not limited to a post-
installation inspection of the Work by Onsite, at Onsite's option, and the
execution by Customer and Subcontractor of an Interim Certificate of
Completion and Acceptance (substantially in the form attached hereto as
EXHIBIT 3 and incorporated herein), or other form of written evidence from
Customer of its acceptance of the applicable portion of the Work,
accompanied by documented evidence (in the form of lien releases and
similar documents), as applicable and at Onsite's option, that all
Subcontractor's obligations to laborers, subcontractors, materialmen and
others who have Mechanics Lien Rights or other legal claims related to the
Project have been satisfied. "Final Acceptance" shall be deemed to occur
upon execution by Customer and Onsite of any form of written evidence from
Customer of its final acceptance of the Work.
SECTION 4. SCOPE OF AGREEMENT. Subcontractor certifies and agrees that
Subcontractor is fully familiar with all terms, conditions and obligations
of the Contract Documents, the location of the Project, and the conditions
under which the Work is to be performed, and that Subcontractor enters into
this Agreement based upon Subcontractor's investigation of all such matters
and is in no way relying upon any opinions or representations of Onsite or
Customer. It is also agreed and understood that Subcontractor has relied
on manufacturer's information and specifications for equipment and that
Subcontractor will not be bound by any misrepresentations or falsities
pertaining to the information provided by such manufacturers. It is
further agreed that Contract Documents are incorporated in this Agreement
by this reference, with the same force and effect as if the same were set
forth at length herein, and that Subcontractor and its subcontractors will
be and are bound by any and all of said Contract Documents insofar as they
relate in any part or in any way, directly or indirectly, to the Work
covered by this Agreement.
SECTION 5. CLEAN-UP. Clean-up of Subcontractor and its subcontractors'
waste materials and refuse will be the full responsibility of the
Subcontractor. If Subcontractor fails to assume this responsibility, then
said clean-up work will be performed by Onsite and the Contract Price
reduced by an amount equal to the cost to Onsite of the same.
SECTION 6. CHANGES IN THE WORK. It is the expressed intent of this
Agreement that Subcontractor perform the Work acting as a "turnkey"
provider of goods and services with full expectations that changes in the
scope of the Work necessitating pricing changes, or relaxation in
requirements as provided herein, will not be required. Except as otherwise
set forth in Section 3 above regarding the Project Milestone Schedule,
Subcontractor shall adhere strictly to the Contract Documents unless a
change therefrom is authorized in writing (a "Contract Change Order,"
substantially in the form attached hereto as EXHIBIT 5) by Onsite.
Subcontractor hereby agrees to make any and all changes, furnish the
materials and perform the Work that Onsite may require at a reasonable
addition to the Contract Price as stated herein. Subcontractor shall give
written notice of any Work for which extra compensation is required prior
to performing the Contract Change Order Work. Onsite shall pay
Subcontractor any amounts due and owing for any Contract Change Order Work
performed by Subcontractor upon Final Acceptance in accordance with Section
3.
SECTION 7. TIME AND MANNER OF PERFORMANCE. Subcontractor shall commence
performance of this Agreement forthwith upon receipt of the Notice to
Proceed and shall furnish all materials, labor, tools, equipment and
supplies necessary for the performance of this Agreement in a proper,
efficient and workmanlike manner. Subcontractor shall execute the Work
undertaken in a prompt and diligent manner so as to promote the general
progress of the entire design, construction and start-up, and shall not, by
delay or otherwise, interfere with or hinder the work of Onsite or any
other subcontractor. Subcontractor agrees to conduct all work in a manner
which minimizes disruption to Customer's education program and business
operations.
SECTION 8. SUBSTANTIAL COMPLETION AND LIQUIDATED DAMAGES. Subcontractor
shall achieve substantial completion of the Work (that is, Completion of
ninety percent (90%) or more of the Work), as evidenced by the execution of
some form of written documentation by Customer (and acceptable to Onsite)
of Customer's agreement of Substantial Completion, not later than February
26, 1999 (the "Substantial Completion Date"). Subcontractor shall be
subject to a charge for liquidated damages of Two Hundred Fifty Dollars
($250) per day for each day that Substantial Completion exceeds the
Substantial Completion Date. The parties agree that because the actual
amount of damages Onsite would incur as a result of any failure of
Subcontractor to achieve Substantial Completion by the Substantial
Completion Date is difficult to calculate, the amount of liquidated damages
set forth herein is reasonable and is not being imposed as a penalty.
SECTION 9. WORKMANSHIP. Every part of the Work shall be executed in
accordance with the Contract Documents in a sound, workmanlike and
substantial manner. All workmanship shall be of good quality and materials
used shall be furnished in ample quantities to facilitate the proper and
expeditious execution of the Work, and shall be reasonable for the
applications.
SECTION 10. ASSIGNMENT OF CONTRACT. Subcontractor shall have the right,
with the written consent of Onsite, which shall not be unreasonably
withheld, and of Customer, if required under Onsite's agreement with
Customer, to assign, transfer or sublet any portion or part of the Work
required by this Agreement. Onsite may assign, transfer or grant a
security interest in any of its rights under this Agreement without the
prior written consent of Subcontractor, and may assign or transfer any of
its obligations under this Agreement with the prior written consent of
Subcontractor, which shall not be unreasonably withheld.
SECTION 11. INSURANCE. Subcontractor shall provide and maintain
throughout the Term of this Agreement Workers' Compensation, Commercial
General Liability, Contractual Liability, Comprehensive Automobile
Liability and Floaters Installation Insurance at the following minimum
limits:
a. WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE with a
limit of $500,000 (or such higher limit as may be required by law) to
provide for payment to Subcontractor's employees, and/or their dependents,
employed on or in connection with the Work covered by this Agreement, of
Workers' Compensation benefits in accordance with applicable laws.
b. (i) COMMERCIAL GENERAL LIABILITY INSURANCE covering all
operations, including completed operations and contractual liability, with
the following limits: $1,000,000 per occurrence, $2,000,000 general
aggregate and $2,000,000 completed operations aggregate; and (ii) EXCESS or
UMBRELLA LIABILITY INSURANCE with the following limits: $2,000,000 per
occurrence and $2,000,000 general aggregate.
c. PRIMARY COMPREHENSIVE AUTOMOBILE PUBLIC LIABILITY INSURANCE
covering owned, non-owned and hired automotive equipment used in connection
with Subcontractor's operations, with a combined single limit for bodily
injury or death and property damage of $1,000,000 per accident.
d. INSTALLATION FLOATER INSURANCE covering the equipment and
materials being installed in the performance of the Work while such
equipment and materials are in transit, at the job site or the Premises,
and after installation pending Acceptance of the same by Customer, in an
amount equal to the cost to replace the equipment and materials with like
kind and quality. This insurance shall be on an "all risk" basis
including, but not limited to, the perils of fire, vandalism, malicious
mischief and theft.
In the event any of the Work hereunder is contracted to subcontractors by
Subcontractor, Subcontractor will require its subcontractors to carry and
maintain the same insurance as specified above. Onsite and Customer shall
be included as additional insureds on the liability insurance policy(ies)
specified herein. The naming of Onsite and Customer as additional insureds
shall not obligate Onsite or Customer to pay any premium on the policies.
Such insurance shall be primary insurance and shall contain a Severability
of Interest clause with respect to each insured. The "Other Insurance"
clause of such policies shall be modified, if necessary, to specify that
any separate insurance maintained in force by Onsite or Customer shall be
considered excess insurance and shall not contribute with insurance
extended by Subcontractor's and/or subcontractor's insurer(s) under this
requirement.
Subcontractor shall, ten (10) days before commencing Work under this
Agreement (unless otherwise agreed by Onsite), and prior to expiration of
any policy of insurance specified herein, deliver to Onsite, Attention:
Xxxxxx Xxxxxx Xxxxxxxxxx, Esq., two (2) originals of the Certificate(s) of
Insurance completed by Subcontractor and its subcontractor's insurance
carrier or agent certifying that minimum insurance coverage, as required
above, is in effect and will not be canceled or changed until thirty (30)
days after written notice is given to Onsite and Customer. Subcontractor
shall immediately notify Onsite and Customer upon receipt of any
cancellation notice.
SECTION 12. ADDITIONAL REQUIREMENTS. Subcontractor, any of its officers,
agents, employees or servants, further agrees:
(1) to indemnify and hold to hold harmless, and hereby does
indemnify and hold harmless, Onsite from any and all claims, suits,
liability or patent rights arising in connection with this Agreement or the
performance of the Work;
(2) to pay promptly all valid bills and charges for material,
labor or otherwise in connection with or arising out of this Agreement, and
hereby indemnifies and holds harmless Onsite from and against all liens and
claims for labor and material filed against the property or any part
thereof, and from and against all expenses and liability in connection
therewith, including but not limited to court costs and attorney's fees
resulting or arising therefrom, by others than Subcontractor. Should Onsite
receive notice of unpaid bills or charges in connection with the Work,
Subcontractor shall forthwith pay and discharge the same and cause the same
to be released of record, or shall furnish Onsite with proper indemnity,
either by satisfactory corporate surety bond or satisfactory title policy;
and
(3) to obtain and pay for all permits, licenses and official
inspections made necessary by this Work, and to comply with all laws,
ordinances and regulations bearing on the Work and the conduct thereof.
Subcontractor represents and warrants that Subcontractor is a licensed
contractor in good standing under the laws of the jurisdiction in which the
Project is located and agrees to furnish Onsite with a copy of
Subcontractor's license upon execution of this Agreement. In addition,
Subcontractor, a corporation, represents that Subcontractor (i) is
organized under or authorized to do business under the laws of the State of
Kansas; and (ii) is authorized to transact business under and in accordance
with the laws of the state where the Project is located.
SECTION 13. GUARANTEES AND WARRANTIES.
a. WORKMANSHIP AND MATERIALS. Subcontractor warrants and guarantees
the Work performed, and materials utilized in the performance of the same,
under this Agreement shall be free from material defects for a period of
one (1) year from the date of Acceptance of the same by Customer (or such
longer period as may be provided by law). Subcontractor shall, within a
reasonable amount of time after written notice thereof from Onsite and/or
Customer, correct such defects to the reasonable satisfaction of Customer.
For the benefit of Customer, Subcontractor shall obtain from all
subcontractors a similar warranty and guaranty of workmanship.
b. EQUIPMENT AND MATERIALS. For the benefit of Customer and Onsite,
Subcontractor shall obtain from all vendors and manufacturers (as
applicable) of equipment installed or materials used in the performance of
the Work such warranties against defects and deficiencies in design,
material and workmanship as are generally given in the trade to an owner or
contractor; provided however, that Subcontractor is hereby authorized and
obligated to obtain the customary services furnished in connection with
such warranties and guarantees on behalf of Onsite during the Term of this
Agreement.
SECTION 14. RELATIONSHIP; COMPENSATION AND TAXES. The parties expressly
intend, agree and understand that Subcontractor is an independent
contractor and an employing unit subject, as an employer, to all applicable
Unemployment and Workers' Compensation statutes so as to relieve
Subcontractor's employees as employees of Onsite for the purpose of keeping
records, taking reports and payment of Unemployment and Workers'
Compensation premiums or contributions. Subcontractor agrees to indemnify
and hold Onsite and Customer harmless and reimburse Onsite for any expense
or liability incurred under such statutes in connection with employees of
Subcontractor.
Subcontractor further agrees with regard to (i) the production, purchase,
sale, furnishing, delivery, pricing and use or consumption of materials,
supplies and equipment; (ii) the hiring, tenure or conditions of employment
of employees and their hours of work and rates of and the payment of their
wages; and (iii) the keeping of records, collection and payment of federal,
state and municipal taxes and contributions, that Subcontractor will keep
and have available all necessary records and make all reports, returns,
withholding deductions, collections and payments and otherwise do any and
all things necessary so as to fully comply with all federal, state and
municipal laws, ordinances and regulations insofar as they affect or
involve Subcontractor's performance of this Agreement, all so as to fully
relieve Onsite and a Customer from and to protect Onsite and Customer
against any and all responsibility or liability therefore or in regard
thereto. This Agreement does not constitute a hiring by either party, and
Subcontractor is not an employee, partner or joint venturer of Onsite.
SECTION 15. HEALTH AND SAFETY PROVISION. Subcontractor shall perform the
Work in accordance with the statutes, ordinances, rules and regulations of
any and all federal, state, local, municipal or other agencies having
jurisdiction over the Work and at the Project and in accordance with
applicable health and safety regulations. Subcontractor hereby agrees to
indemnify and hold harmless Onsite from and against any liability arising
out of any violation of the above mentioned laws and regulations by
Subcontractor, and/or Subcontractor's employees, agents or subcontractors.
SECTION 16. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE. The
acceptance by Subcontractor of the Final Payment shall be and shall operate
as a release to Onsite and Customer of all claims and all liability to
Subcontractor for all things done or furnished in connection with the Work
and for every act and neglect to Onsite, Customer and others relating or
arising out of the Work.
SECTION 17. TIME. Time is of the essence in this Agreement.
SECTION 18. ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, or any alleged breach thereof, will be settled
by binding arbitration with such arbitration service as the parties may
agree, and in the absence of such agreement, in accordance with the
Commercial Rules of the American Arbitration Association, and judgment upon
the award rendered by the Arbitrator(s) may be entered in any court having
jurisdiction thereof. In no event will the arbitration of any controversy
or the settlement thereof delay the performance of this Agreement.
Arbitration hearings, unless the parties agree otherwise, will be held in
the County of San Diego, California. The prevailing party will be
reimbursed for any and all attorney's fees, costs and expenses, including
those incurred in any arbitration hearing (and including the arbitrator's
fees, costs and expenses).
SECTION 19. NON-DISCRIMINATION. Subcontractor shall not discriminate
against any employee or applicant for employment because of race, creed,
color, sex, national origin or any other unlawful reason. Subcontractor
shall take affirmative action to ensure that applicants are employed, and
that employees are treated during employment, without regard to their race,
creed, color, sex or national origin. Such action shall include, but not
be limited to, the following: employment, upgrading, demotion or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay
or other forms of compensation; and selection for training, including
apprenticeship.
SECTION 20. NOTICE. Any notices to be given under and pursuant to the
terms of this Agreement shall be made by personal delivery, by a nationally
recognized overnight carrier, or by registered or certified mail, postage
prepaid, return receipt requested, and such notice shall be deemed given
upon receipt if delivered personally or by overnight carrier, or forty-
eight (48) hours after deposit in the United States mails as set forth
herein. Any notice to Onsite shall be addressed as follows:
Onsite Energy Corporation
000 Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, President
Any notice to Subcontractor shall be addressed as follows:
The Xxxxx Company
0000 Xxxxxxxxxxx Xxxx
XX Xxx 00000
Xxxxxx Xxxx, XX 00000
Attention: Xxx Xxxxx, Vice President
SECTION 21. EVENTS OF DEFAULT. Subcontractor shall be deemed to be in
default of this Agreement (i) if Subcontractor shall at any time shall
(a) refuse or neglect to supply a sufficient number of properly skilled
workmen or sufficient materials of the proper quality; (b) fail in any
respect to execute the Work as described in this Agreement with promptness;
(c) cause by any action or omission the stoppage or delay of or
interference with the Work or of the Work of any subcontractors; (d) fail
in the performance of any of the covenants herein contained; or (ii) if
Subcontractor be adjudged bankrupt or shall make a general assignment for
the benefits of its creditors; or (iii) if a Receiver shall be appointed
for Subcontractor or for its assets; or (iv) if Subcontractor shall become
insolvent or become a debtor in reorganization, composition or arrangement
proceedings, then in any such event, after serving a five (5) day written
notice mailed or delivered to the last known address of Subcontractor of
the existence of any of the foregoing causes, and unless the cause
specified in such notice is cured within such five (5) days, Onsite, at its
option, may provide either itself or through others, any such labor or
materials to complete the Work and may deduct the cost thereof from any
money then due, or hereafter to become due, to Subcontractor under this
Agreement, provided, however, if the default is of a nature that is not
curable in such five (5) day period and Subcontractor is diligently
pursuing a cure, then the cure period shall be extended thirty (30) days.
In any such event, after such notice and failure to cure such cause within
five (5) day specified, Onsite, at its option, may terminate this Agreement
and may enter on the premises and take possession, for the purpose of
completing the Work, of all materials and equipment of Subcontractor which
Subcontractor hereby assigns to Onsite, may employ other persons to
complete the Work by whatever method Onsite may deem expedient, and may
deduct the cost thereof from any money then due, or hereafter to become
due, to Subcontractor under this Agreement. In the event the expense
incurred by Onsite under this Section 21 after the termination of
Subcontractor hereunder exceeds the Contract Price, such excess shall be
paid by Subcontractor to Onsite.
SECTION 22. ENVIRONMENTAL REQUIREMENTS. Subcontractor recognizes that in
connection with the performance of the Work or the Project, Onsite is not
responsible for any work relating to (i) asbestos and materials containing
asbestos; (ii) pollutants, hazardous wastes, hazardous materials,
contaminants, including without limitation ballasts that may contain PCBs
(collectively, clauses (i) and (ii), "Hazardous Materials"); and (iii) the
storage, handling, use, transportation, treatment, disposal, discharge,
leakage, detection, removal or containment thereof. The materials and
activities listed in the foregoing sentence are referred to as "Excluded
Materials and Activities." Subcontractor agrees that if performance of Work
involves any Excluded Materials and Activities, Subcontractor will
immediately notify Onsite and Customer in writing and will perform, or
arrange for the performance of, such work directly with Customer and will
bear the sole risk and responsibility therefore. Furthermore, in handling
any of Customer's property, including without limitation Customer's
ballasts that may contain PCBs, Onsite does not take title to any such
property, nor does Onsite assume any responsibility for the transportation,
handling or disposal of such property. Subcontractor shall assist Customer
who is solely responsible for the identification and disposal of Customer's
property in accordance with all federal, state and local laws, statutes and
regulations applicable thereto, and shall, upon the request of Onsite,
furnish to Onsite copies of any manifests or other written evidence of
satisfactory disposal of the same. In furtherance of the foregoing,
Subcontractor agrees to release, indemnify, defend and hold harmless Onsite
and its consultants, partners, directors, officers, agents and employees of
and from all costs, claims, damages and liability arising out of or
relating to Excluded Materials and Activities, acts or omissions of Onsite
or third parties relating thereto, or injury caused thereby, excepting only
such costs, claims, or damages or liability as are the result of any
willful misconduct of Onsite.
SECTION 23. MISCELLANEOUS.
a. ENTIRE AGREEMENT. This Agreement, together with any Exhibits or
amendments hereto, represents the entire agreement between the parties as
to the subject matter hereof. This Agreement shall be binding on and inure
to the benefit of the heirs, successors and assigns of the respective
parties.
b. AMENDMENT. The provisions of this Agreement can be modified only
by a writing that expressly states that modification of this Agreement is
intended.
c. WAIVER. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision, nor shall any waiver constitute
a continuing waiver unless otherwise expressly provided hereunder or in a
writing signed by the party against whom any such waiver is sought to be
enforced.
d. GOVERNING LAW. This Agreement shall be interpreted and enforced
under the laws of the State of California.
e. SEVERABILITY. Any provision of this Agreement prohibited by, or
unlawful or unenforceable under, any applicable law or any jurisdiction
shall be ineffective as to such jurisdiction without invalidating the
remaining provisions of this Agreement.
f. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
[Remainder of page intentionally left blank]
Mf\work\onsite\filings\10q exhibit 10-90\<>
g. HEADINGS. Headings or captions of paragraphs or sections of this
Agreement are for convenience of reference only and shall not be considered
in the interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
ONSITE: SUBCONTRACTOR:
ONSITE ENERGY CORPORATION THE XXXXX COMPANY
By: ________________________________ By:
_________________________________
Xxxxxxx X. Xxxxxxxx, President Name:
___________________________
Title:
____________________________
Date: March ___, 1998 Date: March ___, 1998
Attachments:
Exhibit 1 - Scope of Work
Exhibit 2 - Facilities List
Exhibit 3 - Interim Certificate of Completion and Acceptance
Exhibit 4 - Form of Contract Change Order
Mf\work\onsite\filings\10q exhibit 10-90\<>
