EXHIBIT 10.21
AGREEMENT
Between
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XXXX OIL VIRGIN ISLANDS CORP.
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(HOVIC)
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And
XXXXXXX XXXXX INTERNATIONAL. L. P.
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(CONTRACTOR)
For
CONSTRUCTION EQUIPMENT OPERATION AND MAINTENANCE SERVICES
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AT
ST. CROIX, U.S. VIRGIN ISLANDS
CONTRACT NUMBER CSX-0444
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CONSTRUCTION EQUIPMENT OPERATION AND MAINTENANCE SERVICES
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AGREEMENT
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Agreement dated August 1, 1996 between XXXX OIL VIRGIN ISLANDS CORP., a
X.X.Xxxxxx Islands corporation, having an office at X.X. Xxx 000, Xxxxxxxxx, Xx.
Xxxxx, X.X. XxxxxxXxxxxxx, 00000 (herein "HOVIC"), and XXXXXXX XXXXX
INTERNATIONAL, L. P., a Pennsylvania limited partnership, having an office at
X.X. Xxx 0000, Xxxxx Xxxx, Xx. Xxxxx, X.X.Xxxxxx Xxxxxxx. 00000 (herein
"CONTRACTOR").
RECITALS:
A. HOVIC operates and maintains a refinery at St. Croix, U.S. Virgin
Islands.
B. HOVIC wishes to engage CONTRACTOR to provide construction equipment
operation and maintenance services as described in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1.0 DEFINITION OF TERMS
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The words and terms in this Agreement will have the meanings ascribed to
them in this Article 1.0 whenever they appear in this Agreement.
1.1 Construction Aids means all materials, supplies and temporary
facilities and such other items as are required for the performance of the
services, but which are not intended to become a permanent part of the
Facilities.
1.2 Equipment means all material, supplies, and rigging equipment and
accessories used in the performance of the Services.
1.3 Construction Equipment means all cranes, forklifts, manlifts,
compressors, loaders, dozers, etc. used in the performance of the Services.
1.4 Facilities means the operating units and associated operations located
at the refinery site of HOVIC at St. Croix, U.S. Virgin Islands.
1.5 Job Site means the real property on which the Facilities are being
maintained at St. Croix, U.S. Virgin Islands.
1.6 Services means collectively all the services and activities specified
in this Agreement relating to construction equipment operation and maintenance,
which may include procurement, sale, expediting and inspection, labor,
materials, supervision and management to be performed or
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provided by CONTRACTOR. Requests for Services may be given by HOVIC to
CONTRACTOR either orally or in writing.
1.7 Subcontractor means any third party supplying contract services to
CONTRACTOR, at the Facilities.
1.8 Vendor means any third party supplying any Equipment or Construction
Aids to CONTRACTOR with or without the supervision of installation at the
Facilities, but without installation labor at the Facilities.
2.0 SERVICES BY CONTRACTOR
----------------------
CONTRACTOR, as required by HOVIC. will in accordance with Schedule A and
this
Agreement:
2.1 Furnish required maintenance services and / or construction equipment
management. operation. supervision and craft personnel.
2.2 Provide planning. scheduling and cost control required to control the
assigned Services and personnel.
2.3 Supervise CONTRACTOR furnished subcontractors.
2.4 Provide management services in connection with the performance of
assigned services.
2.5 Arrange for administration of CONTRACTOR's personnel.
2.6 Obtain and maintain a business license in the U.S. Virgin Islands in
CONTRACTOR's name for performance of the Services.
2.7 Obtain necessary work permits as required by HOVIC Safety, Operations
or other applicable Department.
2.8 Administer pre-employment tests to all CONTRACTOR's employees who will
be performing work on HOVIC's premises to ensure that only those who are
qualified are hired. The tests will be designed to measure the level of skills
possessed by each applicant as they relate to the requirements of the specific
job functions to be performed, and will include standard tests of craft skills,
including comprehension of written instructions. Individuals who fail to achieve
acceptable scores on such tests will not be employed by CONTRACTOR on HOVIC's
premises. The testing program will be directed by a professional with specific
knowledge of the job requirements. To ensure compliance with this provision,
CONTRACTOR will make the test scores (but not the names) of successful
applicants available for review by HOVIC upon request. With the exception
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of this review, CONTRACTOR and HOVIC will maintain the tests and results on a
confidential basis, and will not disclose them except as required by law.
3.0 SERVICES BY HOVIC
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HOVIC will furnish or perform in accordance with Schedule B the following
in connection with the Services, without cost to CONTRACTOR:
3.1 Provide all construction equipment and maintenance facilities required
for the performance of the assigned Services.
3.2 Procure all necessary permits, licenses and easements required for
performance of the Services, other than the permits and licenses to be obtained
by CONTRACTOR under Sections 2.6 and 2.7.
3.3 Furnish an individual(s) to represent HOVIC hereunder, but who will
not control or supervise CONTRACTOR's day-to-day work since CONTRACTOR is a
qualified independent contractor.
3.4 Provide security in accordance with 110 VIC Security Department
policies.
4.0 SPECIAL CONDITIONS
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4.1 HOVIC reserves the right to terminate this Agreement at any time in
its sole and unlimited discretion, conditioned on HOVIC providing ninety (90)
day written notice of the effective date of termination, without further cost or
obligation beyond what is specifically provided for in Articles 5 and 17.
4.2 There is no guarantee, express or implied, for any minimum amount of
work or quantity under this Agreement.
4.3 CONTRACTOR acknowledges that the Services will be performed at an
operating facility and will perform all Services in such a fashion as to
minimize interference with HOVIC's operation of the facility.
4.4 CONTRACTOR will schedule work in conjunction with HOVIC's
representative to avoid any interference with HOVIC's use of its ship berth, if
any. When ships or barges are scheduled, HOVIC will advise CONTRACTOR eight (8)
hours prior to the scheduled arrival and CONTRACTOR will schedule its work, at
no extra cost to HOVIC, so as not to interfere with HOVIC's operation.
4.5 If HOVIC is unable to obtain all necessary governmental
authorizations, however designated, which are required by appropriate
governmental authorities for the Services, the work
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assignment will be canceled. HOVIC will not be held liable for any charges
resulting from the necessity for cancellation of the work, other than those
specified in Articles 5 and 17.
4.6 Unless otherwise agreed herein to be provided by CONTRACTOR, 1-IOVIC
will provide necessary field personnel to direct and instruct those individuals
participating in specific crane lifting operations or other equipment
operations. CONTRACTOR will direct its operators to comply with directions and
instructions provided by HOVIC field personnel to the extent that such
directions and instructions are in compliance with OSHA standards or other
regulatory law. CONTRACTOR will be bound by all communications given by HOVIC to
CONTRACTOR's supervisory personnel if the communication relates to the portion
of any work being directly supervised by that supervisory personnel. HOVIC shall
provide CONTRACTOR a list of the HOVIC supervisors that are authorized to commit
to CONTRACTOR service. CONTRACTOR shall provide a list of management personnel
who are eligible to receive commitments from HOVIC. All communications made by
HOVIC or CONTRACTOR personnel involving major issues shall be followed with a
written notice to the other party detailing the substance of that communication.
4.7 HOVIC shall make available to CONTRACTOR all drawings, manufacturer's
specifications or other documents specifying weights and dimensions for
CONTRACTOR's review and verification. CONTRACTOR shall conduct work as directed,
but is not required to verify weights and dimensions of lift objects. CONTRACTOR
will endeavor to use professional judgment in proceeding with all lifts, and
will notify HOVIC of concerns with weights and dimensions provided by HOVIC if
such concerns exist. CONTRACTOR has the final authority and decision in
proceeding with all lifts, and will notify HOVIC in writing immediately of any
lift that CONTRACTOR refused to complete due to safety or other concerns.
4.8 The term of this agreement shall be five (5) years ending on August
12, 2001. During this period it is agreed that the rates for types / sizes of
equipment listed in Schedule C, Attachment IA will not change. Additional rates
for equipment types not listed on Schedule C, Attachment IA will be negotiated
between the parties as required.
5.0 COMPENSATION
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HOVIC will pay CONTRACTOR as set forth in Article 6.0, as full and complete
compensation for the Services, the sum of all charges and reimbursable costs
incurred in the performance of the Services, as set forth in Sections 5.1, 5.2,
5.3, 5.4, 5.5 and 5.6;
5.1 Monthly rates for operation and maintenance of construction equipment.
5.1.1 Monthly Rates for Hydraulic and Conventional Cranes as set
forth in Schedule C, Attachment lA. This rate is an all inclusive rate and
includes, for accounting purposes, maintenance of non-operated equipment as set
forth in Article 5.1.2.
5.1.2 Schedule of Non-Operated Equipment leased by HOVIC and
maintained by
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CONTRACTOR as set forth in Schedule C, Attachment lB. The maintenance charges
for non-operated equipment are included in the Hydraulic and Conventional Crane
rates as set forth on Article 5.1.1.
5.2 Hourly Rates for personnel associated with the services provided by
CONTRACTOR in the Auto / Truck Garage. Such personnel will be referred hereafter
as Time & Material personnel.
Salaried Personnel
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5.2.1 The actual salaries and wages of managerial and supervisory
personnel; assigned to perform the Services in St. Croix, U.S. Virgin Islands,
all as set forth in Schedule C, Attachment 2, plus;
(i) Travel, relocation, housing/living and local
transportation in St. Croix in accordance with Exhibits 4. 5 and 6.
Hourly - Administration/Technical
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5.2.2 The wages of all technical and administrative job site
personnel other than those set forth in Subsections 5.2.1 and 5.2.3 as more
particularly described in Schedule C, Attachment 2, plus;
(i) Travel, relocation, housing/living and local
transportation in St. Croix in accordance with Exhibits 4, 5 and 6.
(ii) Overtime at time and one-half for work over 8 hours per
day or 40 hours per week and other criteria in accordance with the U.S. Virgin
Islands law.
Hourly - Craft
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5.2.3 The wages of all craft Job Site personnel other than those set
forth in subsections 5.2.1 and 5.2.2 as more particularly described in attached
Schedule C, Attachment 2, plus;
(i) Overtime at time and one-half for work over 8 hours per
day or 40 hours per week and other criteria in accordance with the U.S. Virgin
Islands law.
(ii) On-site time required to be informed of HOVIC's
requirements for physicals, safety and security.
5.2.4 An overhead and profit charge which includes the following for
all time and material personnel:
a. Insurance costs
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b. Home office and on site administrative expense
c. Legal and professional fees
d. Interviewing and recruiting costs
e. Medical services and substance abuse testing
f. Training and job skill testing
g. Profit
5.2.5 FICA, FUTA, VIESA, Worker's Compensation (in St. Croix) charges
at actual cost; in accordance with all applicable laws, at actual cost, for the
personnel set forth in Subsections 5.2.1, 5.2.2 and 5.2.3.
5.3 Miscellaneous Terms and Conditions in accordance with Schedule C,
Attachment 3.
5.4 Cost Reduction Incentive Program in accordance with Schedule C,
Attachment 4.
5.5 Subcontractor costs in accordance with Schedule C, Attachment 5.
5.6 HOVIC shall reimburse CONTRACTOR for Virgin Islands Gross Receipt
Taxes. HOVIC will not reimburse CONTRACTOR for any other taxes including sales
and use taxes, transaction taxes and any other taxes, levied, assessed or
imposed by governmental authority upon the sale, purchase, handling, storage,
installation or other use of any materials, equipment, supplies or services
acquired for or used in the performance of this Agreement including income tax
or any other taxes based on net profit.
6.0 TERMS OF PAYMENT
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Reimbursable Cost and Charges
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6.1 At the end of each week, CONTRACTOR will tender to HOVIC an invoice of
those costs and charges for all costs set forth in Subsections 5.2.1, 5.2.2 and
5.2.3, including those charges set forth in Subsections 5.2.4 and 5.2.5 and
applicable items from Sections 5.3, payable under this Agreement and which have
been incurred by CONTRACTOR during the preceding week. For all other
reimbursable costs and charges, once each month or as agreed by HOVIC Accounting
and CONTRACTOR, CONTRACTOR will tender to HOVIC an invoice of costs and charges
reimbursable under this Agreement that have been incurred by CONTRACTOR during
the preceding period.
The invoice will be sent or delivered to the following HOVIC address:
XXXX OIL VIRGIN ISLANDS CORP.
X.X. Xxx 000, Xxxxxxxxx
Xx. Xxxxx, XXXX 00000-0000
Attn: Contractor Audit
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6.2 Payment by HOVIC will not release CONTRACTOR from responsibility for
any Services which are subsequently found to have been done improperly within
ninety (90) days of their completion, and written notice of which is furnished
to CONTRACTOR by HOVIC.
6.3 CONTRACTOR will show any applicable Sales or Use or Gross Receipt
Taxes separately on all invoices submitted to HOVIC for payment.
6.4 As a condition to any payment, HOVIC may require a release from any
subcontractor or material supplier whose goods or services are included in any
invoice submitted by CONTRACTOR, such release to be in form reasonably
satisfactory to HOVIC.
6.5 HOVIC may withhold payment in whole or in part without becoming liable
to CONTRACTOR if HOVIC has reasonable grounds to believe that CONTRACTOR is or
may be liable to HOVIC or any subcontractor or vendor, has or may default, or
that liens, garnishments or attachments have or may be asserted. Such
withholding will be to the extent and for so long as is reasonably necessary in
HOVIC's sole judgment. To the extent such payments are withheld not in
accordance with this paragraph but not in willful bad faith, CONTRACTOR's sole
remedy will be to recover such amounts together with interest at the prime rate
at New York Banks during such withholding and it will meanwhile continue its
performance.
6.6 HOVIC may make any payment due hereunder through the medium of a check
made payable to the joint order of CONTRACTOR and such of CONTRACTOR's workers,
material suppliers, subcontractors, vendors, creditors or other claimants, whose
claims against CONTRACTOR are, in HOVIC's reasonable determination, in jeopardy
of non-payment.
6.7 Invoicing applicable to operation and maintenance charges as set forth
in Article 5.1- On the first business day of each month, CONTRACTOR will provide
an invoice to HOVIC detailing the monthly minimum charges. If invoices are paid
in full by HOVIC by the 10th calendar day after receipt, a 1% discount will
apply to the monthly minimums. If HOVIC does not pay the monthly minimums by the
10th workday, then the balance is due by the end of the month. At the end of
each month, CONTRACTOR will render an invoice for the additional charges and
fee's, supported by appropriate documentation, which are above the monthly
minimum rates. HOVIC shall pay approved amounts of CONTRACTOR's additional
charges with in 15 calendar days after receipt. If any portion of the additional
charges is questioned by HOVIC, 1-IOVIC will pay the remaining portion.
6.8 Invoicing applicable to Time and Material Charges as set forth in
Article 5.2 - In accordance with Exhibit 7 , invoices will show CONTRACTOR's
invoice number; HOVIC's contract number, provide HOVIC's appropriate charge
numbers and, if applicable, provide the name and title of each individual
performing the Services, the man-hours involved, the hourly rates and the
extended totals. All salaries and wages will be supported with approved time
sheets. CONTRACTOR reimbursable expenses arising out of its performance for the
Services will be included on the invoice and supported as required by HOVIC.
HOVIC will pay the approved
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amounts of CONTRACTOR's invoices for expenses within fifteen (15) calendar days
and for labor within five (5) calendar days after HOVIC's receipt. If any
portion of CONTRACTOR's invoices is questioned by HOVIC, HOVIC will pay the
remaining portion.
7.0 ACCOUNTING AND AUDIT
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7.1 CONTRACTOR will keep full and detailed accounts and records in
accordance with its established accounting procedures.
7.2 Upon 48 hour prior written notice from HOVIC, CONTRACTOR will permit
HOVIC to have access to and review and audit its records and accounts at all
reasonable times relating to any cost reimbursable to CONTRACTOR by HOVIC under
this Agreement; exclusive, however, of any fixed overhead and profit charges.
Reviews and audits may be made within two years of submission of statements of
reimbursable costs and charges.
8.0 TIME OF PERFORMANCE
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CONTRACTOR will use its best efforts to complete each work assignment
consistent with HOVIC's requirements.
9.0 LIEN INDEMNIFICATION
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CONTRACTOR will, at its sole cost and expense, defend and indemnify HOVIC
against all claims, liens, attachments or fines asserted or assessed against
HOVIC (exclusive of personal injury claims, property damage claims, and
subrogation claims, which are covered under Article 11 hereof), as a result of
CONTRACTOR's providing of the services under this Agreement, provided HOVIC (a)
notifies CONTRACTOR promptly of any claim, lien, attachment or charge and (b)
permits CONTRACTOR to defend any such claim, lien, attachment or charge, or post
Bond.
10.0 APPROVALS
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The number of time and material personnel (including craft, supervision,
administration, management and technical) to be furnished by CONTRACTOR will be
subject to approval by HOVIC in accordance with manpower requisitioning
procedures established by HOVIC. This will not affect CONTRACTOR's status as an
independent contractor.
11.0 INDEMNITY: INSURANCE REQUIREMENTS
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11.1 Except as otherwise agreed between HOVIC and CONTRACTOR, CONTRACTOR
will indemnify and hold harmless HOVIC, its divisions, parent, subsidiaries,
directors, officers, agents, and employees, up to the gross sum of the first
$1,000,000.00 for each occurrence, against any and all claims (including
personal injury and death), demands or causes of action, and all cost, losses
liabilities, expenses and judgments incurred in connection with, responding to,
investigating,
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and defending claims, including reasonable and necessary attorney's fees and
costs of court, based upon, in connection with, resulting from or arising out of
any negligence or other fault or strict liability of CONTRACTOR, as determined
by a court of competent jurisdiction, in connection with the performance of the
services made the basis of this agreement, provided, however, that CONTRACTOR's
contractual obligation of indemnification shall not extend to the consequences
of HOVIC's negligence or other fault or to strict liability imposed upon HOVIC.
Conversely, HOVIC will indemnify and hold harmless CONTRACTOR, its divisions,
parent, subsidiaries, directors, officers, agents, and employees against any and
all claims (including personal injury and death), demands or causes of action
and all cost, losses, liabilities, expenses and judgments incurred in connection
therewith, including reasonable attorney's fees and costs of court, based upon,
in connection with, resulting from or arising out of any negligence or other
fault or strict liability of HOVIC or its subcontractors, as determined by a
court of competent jurisdiction, under this agreement; provided, however, that
HOVIC's contractual obligation of indemnification shall not extend to the
consequences of CONTRACTOR's negligence or other fault or strict liability
imposed upon CONTRACTOR.. If CONTRACTOR and HOVIC are adjudicated negligent or
are otherwise at fault or strictly liable without fault with respect to any
damage or injuries sustained, this contractual obligation of indemnity will
continue but each of CONTRACTOR and HOVIC shall indemnify the other ( the
indemnitee) only for an amount equal to the amount of the judgment awarded
and/or paid by the indemnitee to the claimant, multiplied by the percentage of
responsibility for claimant's damages adjudicated to be caused by the
indemnitor. CONTRACTOR and HOVIC will do this notwithstanding the Virgin Islands
comparative negligence statute, Title 5 V.I.C. Section 1451. It is expressly
agreed that the contractual obligations of indemnity referred to herein do not
extend to the consequences of either party's intentional torts, or to punitive
or exemplary damages. Each party's obligation for contractual comparative
indemnity as provided for herein shall survive expiration or termination of this
agreement.
11.2 Before any work is started by CONTRACTOR, CONTRACTOR will, at its
expense, maintain and require its subcontractors to maintain during the
performance of the work, insurance in form satisfactory to HOVIC with insurance
companies authorized to do business in the U.S. Virgin Islands as follows:
11.2.1 Worker's Compensation insurance covering CONTRACTOR's
obligations under all applicable laws and Employer's Liability insurance in the
amount of $100,000 per occurrence.
11.2.2 General Liability insurance, including contractual liability,
with limits of not less than $1,000,000 combined single limit, per occurrence,
bodily injury and property damage, with $2,000,000 annual aggregate.
11.2.3 CONTRACTOR's general liability insurance will specifically
extend to and include the indemnity agreement set forth in Subsection 11.1.
11.2.4 Automobile Liability insurance, with limits of not less than
$1,000,000
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combined single limit per occurrence, bodily injury and property damage. The
automobile insurance will apply to all Contractor owned, rented or leased
vehicles.
11.2.5 If any subcontractor is permitted to perform any of the
Services, CONTRACTOR will maintain protective liability insurance covering the
operations of such subcontractor in the minimum amounts as set forth in
Subsection 11.2.2.
11.2.6 CONTRACTOR will pay any contributions for unemployment
insurance and disability benefits required by the laws of the state or territory
in which the Services are being performed for the employees of CONTRACTOR, and,
upon request, CONTRACTOR will furnish evidence to HOVIC of the payment.
11.2.7 Prior to the commencement of any work, CONTRACTOR will furnish
sufficient certificates of all the insurance to be provided by CONTRACTOR to
HOVIC, which certificates will provide that the insurance will not be canceled
or changed until at least ten (30) days written notice is given to HOVIC c/o
Operation Services; Contract CSX-0444.
All polices of insurance (except worker's compensation) will
name HOVIC and HOVIC's designated representative as insureds and provide for
waiver of underwriters' rights of subrogation against HOVIC and any third party
designated by HOVIC. Insurance certificates must be identified with contract
number.
11.2.8 CONTRACTOR will furnish HOVIC with two (2) copies of a written
report on any accident occurring on or to HOVIC's property, which results in
property damage or injury, within three (3) days of any such accident.
11.3 Excess Liability Insurance will be provided by HOVIC with limits of
liability of $4,000,000 with a $4,000,000 annual aggregate.
11.4 CONTRACTOR's liability to HOVIC is limited to the extent of its
insurance coverage hereunder. Deductibles are shared proportionally between
CONTRACTOR's and HOVIC's account in accordance with comparative negligence as
provided in Article 11.1.
12.0 DISPUTES
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Any claim or dispute arising in connection with the prosecution of the
assigned Services under this Agreement must be presented to HOVIC's Operation
Services Manager in writing within ten (10) days after Contractor or HOVIC
obtain knowledge of the facts giving rise to the claim or dispute. The party
notified will acknowledge receipt by endorsement of a copy if requested, or with
otherwise confirm receipt in writing. All claims or disputes shall be decided in
the first instance by HOVIC's Operation Service Manager. If Contractor is
dissatisfied with the decision of the Operation Services Manager, or if the
Operations Services Manager fails to render a decision within ten (10) days from
submission of the claim or dispute, Contractor may within the following ten (10)
days
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appeal to the HOVIC's Refinery Manager. The appeal shall be in writing
and provide full information to the extent available regarding the basis for the
claim or dispute and shall be delivered to the Refinery Manager. A final
decision shall be made within ten (10) days from submission of the appeal. In
the event Contractor is dissatisfied with the final decision of HOVIC and the
parties are unable to resolve their differences through negotiation, the parties
will attempt in good faith to resolve the dispute under agreed Alternate Dispute
Resolution (ADR) procedures. ADR procedures recommended by the Center for Public
Resources, including procedures for Job Site ADR, will be considered for this
purpose. During the dispute resolution process, the parties shall continue the
performance of assigned Services as specified in this agreement.
13.0 INTELLECTUAL PROPERTY RIGHTS: CONFIDENTIALITY
---------------------------------------------
13.1 Title to all drawings, bills of material, flow diagrams,
specifications, designs, information and data prepared by CONTRACTOR hereunder
will remain the property of HOVIC.
13.2 CONTRACTOR will keep confidential (i) all drawings, specifications,
plans and other materials prepared in connection with the Services (including
copies and other materials substantially prepared therefrom); (ii) all
information relating to HOVIC's business methods and techniques, finances,
processes, apparatus and trade secrets; and (iii) all other information of a
confidential or proprietary nature. Without the written consent of HOVIC,
confidential information will not be used on other projects or disclosed to
other persons (unless pursuant to court order and provided HOVIC has received
notice of the proposed order and has had an opportunity to contest it) other
than in connection with performance of the Services. All confidential materials
must be returned to HOVIC upon completion of the Services or termination of this
Agreement.
13.3 For the purposes of Section 13.2, disclosures made to CONTRACTOR under
this Agreement which are specific, e.g., as the engineering and design practices
and techniques, equipment, products, operating conditions and catalyst for
treating specific feedstock, etc., will not be deemed to be within the foregoing
exceptions merely because they are embraced by general disclosures in the public
domain or in the possession of CONTRACTOR. In addition, any combination of
features will not be deemed to be within the foregoing exceptions merely because
individual features are in the public domain or in the possession of CONTRACTOR,
but only if the combination itself and its principle of operation are in the
public domain or in the possession of CONTRACTOR.
14.0 COMPLIANCE WITH OSHA AND JOB SITE SAFETY REGULATIONS
----------------------------------------------------
14.1 CONTRACTOR will comply, in all material respects, with all applicable
Federal OSHA, State and Territorial laws and regulations (including OSHA Hazard
Communication Standard, 29 C.F.R. (S) 1910.1200 and 051-IA Process Safety
Management Standard, 29 C.F.R. (S) 1910.119) as well as HOVIC's Procedures for
Safety, Health and Fire protection. CONTRACTOR is responsible to become
acquainted with applicable safety and health laws and regulations and HOVIC's
procedures prior to commencing work. CONTRACTOR will take all necessary
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precautions to keep the worksite free from recognized hazards that are likely to
cause injury, death, illness or damage to property.
14.2 CONTRACTOR will comply with all provisions of the attached HOVIC
Safety Guidelines and Requirements for Contractors, Exhibit 12.
15.0 COMPLIANCE WITH LAW: PERMITS AND REGULATIONS
--------------------------------------------
In the performance of the Services, CONTRACTOR will comply with and
defend and indemnify HOVIC against all claims, costs, damages and expenses
resulting from any actual or claimed violation by CONTRACTOR or its services
with any laws, rules, regulations and orders of public authority, whether
federal, state, territorial or local, including safety, building and wiring
codes, wages, unemployment compensation, worker's compensation and social
security laws; CONTRACTOR will file all reports and pay all taxes, fees and
charges required by such laws, rules, regulations or orders. CONTRACTOR
certifies compliance with the Fair Labor Standards Act of 1938, as amended.
Except as otherwise specified herein, HOVIC will secure and pay for the building
permit and all licenses and easements for permanent structures. Any engineering
or presentation from CONTRACTOR in connection with HOVIC obtaining said permits,
licenses or easements will be considered a part of CONTRACTOR's Services.
16.0 BREACH
------
16.1 The occurrence of any of the following events is a Breach of this
Agreement:
(i) any material defect in the Services provided by the
CONTRACTOR; provided that CONTRACTOR fails to correct such condition within
reasonable time after receiving notice from HOVIC of such condition.
(ii) failure after notice has been given to CONTRACTOR of any
unsafe, unsound or defective work, to begin immediately, and diligently proceed
with, steps necessary to correct such work;
(iii) failure to proceed with or complete the Services in
accordance with the Agreement;
(iv) HOVIC has reasonable grounds to believe that CONTRACTOR is
or may become bankrupt, insolvent or unable to pay its debts as they become due;
(v) CONTRACTOR fails to maintain materials, equipment and
personnel of such kinds and in such places as in HOVIC's reasonable judgment are
required for CONTRACTOR's performance hereunder;
(vi) breach of any warranty or representation of this Agreement
provided that
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CONTRACTOR fails to correct such condition within a reasonable time after
receiving notice from HOVIC of such breach;
(vii) failure to comply with any provision of this Agreement in
which HOVIC, in its reasonable judgment, deems to be material; provided that
CONTRACTOR fails to correct such condition within a reasonable time after
receiving notice from HOVIC of such failure to comply.
16.2 If any Breach occurs or HOVIC reasonably believes a Breach is
imminent, HOVIC has, in addition to all remedies available to HOVIC at law, the
remedies set forth in this Article 16. These remedies and remedies afforded to
HOVIC at law are cumulative and concurrent, and exercise of any remedy will not
prevent or limit HOVIC'S exercise of any other right or remedy.
17.0 NON-BREACH TERMINATION
----------------------
In addition to HOVIC'S right to terminate this Agreement for a Breach.
HOVIC may terminate, in whole or in part, CONTRACTOR's further performance at
any time and for any reason, by giving written notice of such termination to
CONTRACTOR. CONTRACTOR's sole remedy if this Agreement is terminated and
CONTRACTOR has not committed a Breach is to recover the total payments to be
made under Article S of this Agreement up to the date of termination, together
with all reasonable costs of demobilization as agreed by the parties.
18.0 WARRANTY
--------
CONTRACTOR warrants the Services will be performed in a competent,
workerlike and efficient manner consistent with industry standards and
practices. CONTRACTOR warrants that the maintenance performed on construction
equipment shall meet or exceed the equipment manufacturers', HOVIC, or, if
applicable, the lessor's maintenance requirements. If construction equipment is
rented or leased by HOVIC, and the CONTRACTOR fails to maintain the equipment as
per the rental company or lessor's requirements, then all penalties assessed to
HOVIC will be the responsibility of the CONTRACTOR.
19.0 INSPECTION
----------
Any inspection by HOVIC will not relieve CONTRACTOR of its obligations
under this Agreement and will not be deemed to include any control over the work
methods or details.
20.0 ASSIGNMENT AND SUBCONTRACTING
-----------------------------
This Agreement will not be assigned by either party without the written
consent of the other party, which consent shall not be unreasonably withheld,
except that it may be assigned without such consent to the successor of either
party or to a person, firm or corporation acquiring all, or substantially all,
of the business and assets of such party. No assignment of the Agreement will be
valid unless the potential assignee agrees to assume it. When assigned in
accordance with the
13
foregoing, the Agreement will be binding upon, and will inure to the benefit of,
the assignee. With HOVIC's written approval, CONTRACTOR may subcontract any
portion of the Services to a qualified independent contractor. Such
subcontracting will not relieve CONTRACTOR of its obligations hereunder.
21.0 FORCE MAJEURE
-------------
Neither party will be obligated hereunder or liable in damages or
otherwise for delay or failure to perform for or during the time that such delay
or failure to perform is the direct or indirect result of fire, flood, war,
riot, strikes, labor disturbances or differences, acts of God, compliance with
any federal, state, territorial or municipal law, order, rule or regulation of
any Governmental authority or any other cause reasonably beyond the control of
the party affected.
22.0 CONSEQUENTIAL DAMAGES
---------------------
Neither party will be liable hereunder for any consequential or indirect
damages, in connection with the Services or the Facility.
23.0 INDEPENDENT CONTRACTOR's EMPLOYEES
----------------------------------
CONTRACTOR is an independent contractor and HOVIC does not retain any
control over the manner in which the Services will be performed, being
interested only in the results to be obtained. CONTRACTOR will make every effort
to have its employees work in harmony with the employees of HOVIC and of other
contractors on the premises and any differences among said employees will be
arbitrated by HOVIC, whose decision will be final.
24.0 CONFLICT OF INTEREST
--------------------
CONTRACTOR acknowledges that HOVIC has issued a policy relating to
conflicts of interest between HOVIC and its employees and further acknowledges
receiving a copy of such policy. In order to assure compliance with such policy,
CONTRACTOR will not, before, during or after performance of the Services, make,
offer, provide or agree to make, offer or provide any payment, gift, fee,
discount, commission, percentage, loan, service, entertainment, substantial
favor or anything of value to (i) any employee, agent or representative of
HOVIC, (ii) any member of their immediate families, or (iii) anyone claiming to
act or acting for or in behalf of any such person, nor will CONTRACTOR permit
any such person described in (i), (ii) or (iii) above, to have any financial or
economic interest in CONTRACTOR or any subsidiary or affiliate of CONTRACTOR. lf
CONTRACTOR is requested to make or provide any such payment, gift, fee,
discount, commission, percentage, loan, service, entertainment, substantial
favor or anything of value, by any such person described in (i), (ii) or (iii)
above, CONTRACTOR will report such request immediately to HOVIC in the manner
provided for the giving of notice under this Agreement. The failure by
CONTRACTOR to adhere strictly to any of the provisions of this Article will be
deemed by CONTRACTOR and HOVIC to be a substantial and material breach of this
Agreement, and at
14
HOVIC'S sole option will be grounds for immediate suspension or termination of
this Agreement. All subcontracts or material supply contracts permitted or
required in connection with performance of the Services will contain provisions
in substantially the same form and substance as this Paragraph binding such
subcontractors or material suppliers to the same obligations hereunder as
CONTRACTOR.
25.0 NON-COLLUSIVE BIDDING
---------------------
CONTRACTOR warrants that it has not consulted with any other contractor
or person who has bid on the Services and that its bid was arrived at
independently of any collusion with another such contractor or person.
26.0 STRICT PERFORMANCE
------------------
The failure of HOVIC at any time to request strict performance by
CONTRACTOR of any provision of this Agreement will not affect the right of HOVIC
thereafter to enforce the same. No waiver by HOVIC of any breach or violation of
any of the terms of this Agreement will be deemed to be a waiver of any
continuing or succeeding breach of any such term of this Agreement, or as a
waiver of the term itself.
27.0 ENTIRE AGREEMENT
----------------
This Agreement embodies the entire agreement between HOVIC and
CONTRACTOR. CONTRACTOR does not rely on any previous oral, written or implied
representation, inducement or understanding in entering into this Agreement.
28.0 AMENDMENTS
----------
Amendments or changes to this Agreement will bind the parties only if in
a written form which states that it amends this Agreement and is signed by
authorized officers of the parties. A form for such amendment or change is
attached as Schedule D.
29.0 GOVERNING LAW
-------------
The interpretation of this Agreement and the rights and obligations of
the parties will be governed by the laws of the U.S. Virgin Islands.
30.0 NOTICES
-------
30.1 All notices required under the Agreement will be in writing and
delivered in person, by facsimile, or sent by certified mail and if to HOVIC,
to:
Xxxx Oil Virgin Islands Corp.
15
X.X. Xxx 000
Xxxxxxxxx
Xx. Xxxxx, X.X. Xxxxxx Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx
and, if to CONTRACTOR, delivered in person or sent by certified mail
addressed to:
Xxxxxxx Xxxxx International
X.X. Xxx 0000, Xxxxx Xxxx
Xx. Xxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxx
30. Effective date of notice will be the date of receipt.
31.0 NON-DISCRIMINATION IN EMPLOYMENT
--------------------------------
CONTRACTOR will comply with the equal opportunity clause published in the
regulations of the U.S. Department of Labor Implementing Executive Order 11246,
which is incorporated in this Agreement by reference.
32.0 AFFIRMATIVE ACTION FOR HANDICAPPED WORKERS
------------------------------------------
CONTRACTOR will comply with the affirmative action clause and regulations
published by the U.S. Department of Labor implementing section 503 of the
Rehabilitation Act of 1973, Public Law 93-1 12, as amended, which are
incorporated in this Agreement by reference.
33.0 AFFIRMATIVE ACTION FOR DISABLED VETERANS AND VETERANS OF THE VIETNAM ERA
------------------------------------------------------------------------
CONTRACTOR will comply with the affirmative action clause and regulations
published by the U.S. Department of Labor implementing section 503, Title V of
the Vietnam Era Veteran's Readjustment Assistance Act of 1972, Public Law 92-
540, as amended, and Executive Order 11701, which are incorporated in this
Agreement by reference.
34.0 CERTIFICATION OF NONSEGREGATED FACILITIES
-----------------------------------------
CONTRACTOR certifies that it does not and will not maintain any facilities
it provides for its employees in a manner which will result in segregation on
the basis of race, color, religion, sex or national origin, or permit its
employees to perform their services at any location, under its control, where
segregated facilities are maintained; and that it will obtain a similar
certification prior to the award of any non-exempt subcontract.
16
35.0 MINORITY BUSINESS ENTERPRISES
-----------------------------
CONTRACTOR will comply with the minority business enterprise clauses and
regulations published by the U.S. Department of Commerce implementing Executive
Order 11625, which are incorporated in this Agreement by reference.
IN WITNESS WHEREOF, CONTRACTOR and HOVIC have caused this Agreement to be
executed, effective as of the day and year first above written.
WITNESS: XXXX OIL VIRGIN ISLANDS CORP.
BY:___________________________ /S/ X. X. XXXXXXXX
------------------------------------
X.X. XXXXXXXX, VICE PRESIDENT
WITNESS: XXXXXXX XXXXX INTERNATIONAL, L.P.
BY: XXXXXXX XXXXX RENTAL, INC.,
GENERAL PARTNER
BY:___________________________ /S/ XXX X. XXXXXXX
------------------------------------
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ATTACHMENTS LIST
----------- ----
SCHEDULES
NUMBER DESCRIPTION
A. Scope of Services
B. Items to be Furnished by HOVIC
C. Compensation and Terms of Payment
D. Change Order
18
ATTACHMENTS LIST
----------- ----
ATTACHMENTS TO SCHEDULE C
NUMBER
lA. Monthly Rates for Hydraulic and Conventional Cranes
lB. Schedule of Non-Operated Equipment
2. Time and Material Rate Build ups
3. Miscellaneous Terms and Conditions
4. Cost Reduction Incentive Program
5. Subcontracted Services
19
ATTACHMENTS LIST
----------- ----
EXHIBITS
NUMBER
1. Equipment/Tool/Verification
2. Plant Rules and Procedures
3. Fire Retardant Clothing
4. Long Term Work Assignments (Time and Material Only)
5. Intermediate Work Assignments (Time and Material Only)
6. CONTRACTOR Services - Short Term Basis (Time and Material Only)
7. Time Keeping and Invoice Preparation
8. OSHA "Right-to-Know-Law Training"
9A. HOVIC Travel Procedure
10. Compliance with HOVIC Security and Automated Time Keeping Procedures
11A. Substance Abuse Policy
12. Safety Guidelines and Requirements for Contractors
13. Hiring HOVIC Employee Relatives
14. Manpower Requisitioning (Time and Material Only)
19. Customs Instructions for Contractors
22. Traffic Safety Rules
20
