Exhibit 10.1
[(CONFIDENTIAL TREATMENT OF CERTAIN DESIGNATED
PORTIONS OF THIS
AGREEMENT HAVE
BEEN REQUESTED BY REGISTRANT. SUCH CONFIDENTIAL PORTIONS HAVE BEEN OMITTED, AS
INDICATED BY AN (*) IN THE TEXT, AND
SUBMITTED TO THE COMMISSION).]
CONTRACT AND ALL EXHIBITS
HEREIN
BETWEEN
RIVERSIDE CEMENT COMPANY AND ORO GRANDE CONTRACTORS
THIS CONTRACT made the
27th day of September,
2005, by and between Oro
Grande Contractors, a Joint Venture between Zachry
Construction Corporation and
AMEC E&C Services, Inc. with its principal office at
527 Logwood, San
Antonio,
Texas 78221, hereinafter called "CONTRACTOR", and Riverside Cement Company,
a
California general partnership with its principal
office at 1341 W. Mockingbird
Lane, Dallas, Texas 75247, hereinafter
called "OWNER":
WITNESSETH, that CONTRACTOR and OWNER, for the consideration
hereinafter
named, agree as follows:
ARTICLE 1. SCOPE OF THE WORK
1.1 OWNER hereby
engages CONTRACTOR to perform the
following as more fully
defined in the Scope of Work, attached as Exhibit "A" hereto, referred to
hereafter as the "Work". In completing the Work required herein, CONTRACTOR
shall:
(a)
Furnish all of the
materials as are
necessary to complete
the
Work described herein, except as otherwise provided herein;
(b)
do
everything required by
this Contract
(including the General
Conditions as defined
in Article 6 and
Special Conditions
as
defined in Article 11), the Drawings and Specifications, and
any
other documents,
drawings and
specifications and/or
agreements
which now or in the future become a part of the entire Contract
of the parties
hereto in respect to the Work contemplated
herein.
Hereinafter,
this Contract,
which
includes
the Drawings and
Specifications, and all Exhibits, Attachments, and Schedules hereto, shall be
collectively referred to as the "Contract"
or "Contract Documents". The specific
Work to be performed by CONTRACTOR, as more
fully set out in Exhibit A, Scope of
Work, is as follows:
<PAGE>
(1)
CONTRACTOR shall
furnish all project management services,
construction
management,
engineering, design,
drawings, materials,
equipment, tools,
installation labor,
supervision,
and insurance (as
more fully set forth
in the Scope of Work
attached hereto as
Exhibit
"A"), to provide OWNER with a Mechanically Complete new 6600 short tons
per day (STPD) clinker
production
line at OWNER'S
Oro Grande
Cement
Plant, Oro Grande, California (hereinafter called "Plant
Site").
(2)
CONTRACTOR shall
furnish Parent Guarantees from Zachry
Construction
Corporation and AMEC
plc in the form
attached hereto as
Exhibit B-1.
1.2 OWNER shall
furnish or otherwise be responsible for the following:
(1)
OEM Equipment
and OEM Services as set forth in the Project
Progress Schedule, including OEM engineered drawings;
(2)
Environmental permits
and fees;
(3)
Geotechnical investigation report and topographical surveys;
(4)
Electrical power
(480 volt), non-potable water for the
CONTRACTOR'S
main
construction offices;
(5)
Temporary construction power necessary to completely perform
the
Work within close proximity to the Jobsite. OWNER shall pay for cost of
such services. The
CONTRACTOR will be
responsible for
extending these
services to its
Jobsite. Water and sanitary for other construction
trailers and CONTRACTOR'S employees will be provided by
CONTRACTOR;
(6)
Appoint an OWNER'S Representative who shall be authorized to
act
on behalf of Owner;
(7)
Provide full and
unrestricted
access to the Plant Site for
construction of the Work;
(8)
Abide by, and require
others under OWNER'S
control to abide by
all reasonable Jobsite
safety rules promulgated by CONTRACTOR;
(9)
Pay all real property taxes assessed against the Plant Site and
the Work;
(10)
Advise of the existence of any known contamination, and supply
data which shall evidence that the Jobsite is clean and free of
above or
underground
obstructions,
fissures, faults or
other similarly
hidden
features or
obstructions which
might interfere with
the completion of
the Work;
(11)
Report to
CONTRACTOR
any known pre-existing hazardous
conditions, and to the
extent correction is necessary and advisable for
the Work to be
completed, to correct
such known conditions;
provided
that this shall not shift from CONTRACTOR to OWNER the duty of
safety at
the Jobsite, which
shall remain the sole
responsibility of CONTRACTOR;
(12) All
Owner Services in Section 6.10;
(13)
Timely performance
of all Owner obligations in the Project
Progress Schedule;
(14) *
(15) OWNER
will participate, and
require others under its control to
participate in the
Z-PEPP(TM) Program;
and
(16)
Timely delivery
as per Project Progress Schedule of
Owner-Supplied Equipment and design information and OEM Equipment
to the
Jobsite in a manner that will not delay CONTRACTOR in the
performance of
its obligations as set forth in the approved Project Progress
Schedule;
Page 2 of 32
<PAGE>
Provided, however,
in the event of
OWNER's failure to comply with
subsections (1), (2),
(3), (4), (5), (13) or
(16) above,
CONTRACTOR's
sole remedy
shall be the right to
a Change Order
pursuant to
Section
6.13.
ARTICLE 2. TIME OF COMPLETION
A Limited Notice to Proceed ("Limited Notice to Proceed" or
"LNTP") was
executed by and between the Parties on May
4, 2005. The Parties intend that this
Contract will supersede the LNTP and that
any Work performed in accordance with
the LNTP shall be subject to the terms of
this Contract.
CONTRACTOR will perform the Work in accordance with the Project
Progress
Schedule and shall be completed on or
before October 5, 2007, as may be adjusted
pursuant to this Contract. OWNER and CONTRACTOR agree that these dates are
subject to timely execution of this Contract, on time delivery of the OEM
Equipment, and any extensions of time provided for elsewhere in
this Contract
and OWNER meeting its obligations
hereunder.
ARTICLE 3. THE CONTRACT PRICE
OWNER shall pay CONTRACTOR for the performance of this Contract,
subject
to any additions and deductions provided
for herein, the Lump sum Contract Price
("Lump Sum Contract Price") as follows:
LUMP SUM CONTRACT PRICE
*
ARTICLE 4. PROGRESS PAYMENTS
Payments made pursuant
to the Agreement for Limited Notice to Proceed,
dated May 4, 2005 between OWNER and
CONTRACTOR shall
suffice as advance payment
and be applied to this Contract.
All succeeding
progress payments shall be made
in accordance with the terms set forth in the
following paragraphs of this
Article.
Prior to Contract signing, CONTRACTOR shall submit a Schedule
of Values
for Progress Payments against which, once it has been accepted by OWNER in
writing, progress payments shall be paid. The Schedule of
Values for Progress
Payments shall include engineering, equipment, and construction totaling the
Lump Sum Contract Price. On or before the tenth (10th) Day of each month,
CONTRACTOR shall submit an itemized invoice
for payment pursuant to the Schedule
of Values for Progress Payments which is
subject to verification and approval by
OWNER. CONTRACTOR shall substantiate engineering services, procurement
commitments and equipment and materials-in-progress with such additional
documentation as shall reasonably be
requested by OWNER. CONTRARCTOR will retain
and make available for tax purposes
supporting detail information related to the
invoice as requested by OWNER, including details of engineering and design
services performed by the CONTRACTOR or its
subcontractor.
If required by the
California Board of Equalization Sales and Use Tax audit of OWNER,
CONTRACTOR
will provide OWNER with the necessary documentation supporting the amount of
Sales and Use Taxes paid by CONTRACTOR.
Page 3 of 32
<PAGE>
OWNER shall
make payments on account of this Contract, except as
otherwise provided herein, as follows:
On or before the tenth
(10th) Day of the
following month after receipt of the invoice,
OWNER shall pay the
undisputed
amount of the invoice, as per the Project Progress Schedule. Provided, that
OWNER shall be entitled to withhold from the final payment or immediately
preceding payments, as necessary, a sum, not to exceed $3,000,000. If OWNER
foresees that the final payment will not equal this
amount, OWNER may
withhold
from the immediately preceding invoice or invoices,
as necessary to
accumulate
this sum. OWNER may retain this sum for a period of time not
to exceed ninety
(90) Days after Mechanical Completion,
and may deduct from
such sum any amounts
necessary to obtain release of liens on the Work or complete other items
required to be completed by CONTRACTOR
hereunder but which
remain unreleased or
uncompleted after reasonable notice to CONTRACTOR. After expiration of such 90
Day period, OWNER will refund to CONTRACTOR
any amounts remaining from such sum.
Within ten (10) Days after OWNER receives CONTRACTOR's invoice, OWNER
shall notify CONTRACTOR concerning any invoiced
amount that is in
dispute and
the contractual basis for such dispute. OWNER'S payment and CONTRACTOR's
acceptance of any payment shall not be deemed to constitute
a waiver by either
party of amounts that are then in dispute.
CONTRACTOR and OWNER
shall use their
reasonable efforts to resolve all disputed
amounts as expeditiously as possible
in accordance with the provisions of
Article 8.
If an invoice is not
delivered by
CONTRACTOR on or
before the 10th of
the month, payment may be withheld for an
additional thirty (30)
Days for that
portion of the invoice which is not in compliance with the invoicing
requirements in this Article 4. OWNER shall in
no event make payments in excess
of the contract value of labor, materials, equipment, services, etc., in
progress, furnished or completed to date.
CONTRACTOR agrees that monies received
for the performance of this Contract shall be used primarily for labor and
materials entering into Work under this Contract and said monies shall not
be
diverted to satisfy obligations of
CONTRACTOR on other contracts.
Upon receipt of the partial payments, CONTRACTOR shall furnish OWNER
with such partial releases and waivers of lien from itself and its
subcontractors and significant suppliers as OWNER may reasonably
request from
time to time on labor and/or material
and/or other claims.
All invoices shall
reference OWNER'S
Contract Number and Item Number
____________ and be mailed to:
Riverside Cement Company
3500 Porsche Way, Suite 150
P.O. Box 51479
Ontario, Ca.
91761-0079
Attention: William O. Brown
Payments made to CONTRACTOR by OWNER hereunder shall be made by an ACH
electronic payment in the following format,
in order of preference: CCD+ or CTX
or CTP format, to the account of CONTRACTOR as specified on the invoice. If
undisputed payments are not made as required
by the Contract terms,
CONTRACTOR
may invoice interest at the prime rate of
interest as
published from time to
time in the Wall Street Journal plus one
percent (1%) until paid.
Page 4 of 32
<PAGE>
ARTICLE 5. SUBSTANTIAL COMPLETION AND
MECHANICAL COMPLETION
5.1 Certificate of
Substantial Completion. Once all of the requirements
for
Substantial Completion have been satisfied
CONTRACTOR shall so certify to OWNER
by submitting a Certificate of Substantial
Completion to OWNER, a
copy of which
is attached hereto as an Exhibit to Section 4
of Exhibit A. Within
seven (7)
Days following receipt of such Certificate of Substantial Completion, OWNER
shall notify CONTRACTOR by execution of this
Certificate whether
OWNER concurs
that CONTRACTOR has met the requirements for Substantial Completion. Such
certification shall not be deemed to waive any rights of OWNER against
CONTRACTOR under this Contract. Concurrent with such certification of
acceptance, which shall be evidenced by execution of the Certificate of
Substantial Completion by OWNER, Substantial Completion will have
occurred and
OWNER shall assume care, custody, and control of and shall
thereafter
assume
sole responsibility for risk of loss for that
portion of the Work. If OWNER
determines that CONTRACTOR has not met
Substantial Completion, then OWNER shall
deliver a written notice to CONTRACTOR describing in reasonable detail the
deficiencies noted and corrective action
recommended.
Substantial
Completion
shall not be deemed to have occurred, and CONTRACTOR shall be required to
perform the remaining requirements for Substantial Completion and submit a
revised Certificate of Substantial Completion. Any dispute regarding such
certification shall be resolved in accordance with the procedure set forth
in
Article 8. If, following the initial or any subsequent Certificate of
Substantial Completion, OWNER has not delivered to
CONTRACTOR an acceptance or
rejection of such certificate as required
herein, Substantial Completion will be
deemed to have occurred and the date of
CONTRACTOR's most recent Certificate of
Substantial Completion shall be deemed the
date that Substantial Completion was
actually achieved.
5.2 Certificate of
Mechanical Completion.
Once CONTRACTOR has performed all
of the requirements for Mechanical
Completion,
CONTRACTOR shall so
certify to
OWNER by submitting a Certificate
of Mechanical
Completion to OWNER, a
copy of
which is attached hereto as an Exhibit to Section 4
of Exhibit A. Within
seven
(7) Days following receipt of such
Certificate of Mechanical Completion, OWNER
shall notify CONTRACTOR by execution of this
Certificate whether
OWNER concurs
that CONTRACTOR has met the requirements for Mechanical Completion. Such
certification shall not be deemed to waive any rights of OWNER against
CONTRACTOR under this Contract. Concurrent with such certification of
acceptance, which shall be evidenced by execution of the Certificate of
Mechanical Completion by OWNER, Mechanical Completion will have occurred and
OWNER shall assume care, custody, and control of and shall
thereafter
assume
sole responsibility for risk of loss for the Work.
If OWNER determines that
CONTRACTOR has not met Mechanical
Completion, then OWNER shall deliver a written
notice to CONTRACTOR describing in reasonable detail
the deficiencies noted and
correction action recommended. Mechanical
Completion shall not be deemed to have
occurred and CONTRACTOR shall be required
to perform the remaining requirements
for Mechanical Completion and submit a revised Certificate of Mechanical
Completion. Any dispute regarding such certification shall be resolved in
accordance with the procedure set forth in
Article 8. If,
following the initial
or any re-issuance of the Certificate of
Mechanical Completion,
OWNER has not
delivered to CONTRACTOR an acceptance or
rejection of such certification within
seven (7) Days as required herein,
Mechanical Completion
will be deemed to have
occurred and the date of CONTRACTOR's most recent Certificate of Mechanical
Completion shall be deemed the date that
Mechanical
Completion
was actually
achieved.
Page 5 of 32
<PAGE>
OWNER shall execute the Certificate of Mechanical Completion, provided
that each of the following conditions has
been fulfilled:
(a) Said Work has been completed
in all respects in accordance with
the Contract Documents;
(b)
CONTRACTOR has performed all its obligations under this
Contract
(except warranty and
other obligations
which, by their terms,
are not
then due); and
(c)
CONTRACTOR has
submitted reasonable
evidence in the form
of a
final release and waiver of lien from itself and its subcontractors to
OWNER that CONTRACTOR
and its subcontractors have paid all payrolls,
material bills, and other indebtedness connected with said
Work.
ARTICLE 6. GENERAL CONDITIONS
The general conditions of this Contract are as follows:
6.1 Performance of
Work. All Work to be
performed by CONTRACTOR under this
--------------------
Contract shall be executed in conformity
with the Drawings and
Specifications,
and CONTRACTOR shall do no Work without OWNER'S approval of Drawings and
Specifications, in accordance with Section
6.4.
CONTRACTOR shall
provide and pay for all materials, labor, water, tools,
equipment, light, transportation, and other facilities necessary for the
execution and completion of Work as set out in Exhibit A,
Scope of Work. All
materials and equipment incorporated into the Work shall
be new, and CONTRACTOR
represents that all Work under the Contract
shall be of a finished nature.
CONTRACTOR agrees to
prosecute its Work as is necessary to cause the
Work to be completed in accordance with the
schedule described in Section 4.1 of
Exhibit A, Project Progress Schedule,
attached hereto, subject to adjustments as
provided herein.
CONTRACTOR shall be
fully responsible for
all necessary
expediting of
its orders for materials and equipment, regardless of where placed to avoid
delays in its Work. Defective materials or materials
damaged in the course
of
installation or test shall be replaced or
repaired in a manner conforming to the
Contract Documents. All necessary cutting
shall be neatly and carefully done and
repaired in an approved and workmanlike
manner. No cutting into the constructive
parts of the buildings and structures
shall be done without
approval of OWNERS
Representative. All sheets shall be saw cut. No torch burned
metal sheets will
be accepted.
CONTRACTOR shall be
fully responsible
to install all OEM
Equipment in
the manner recommended by the manufacturer of such equipment,
and to maintain
such OEM Equipment as recommended by the manufacturer until Substantial
Completion. In the event CONTRACTOR does not have necessary
installation
or
maintenance documentation for a particular
piece of OEM Equipment, it shall be
CONTRACTOR's responsibility to inform the OEM or OWNER of its need for
additional information or specifications in advance of such installation or
maintenance.
Page 6 of 32
<PAGE>
6.2 Prosecution
of the Work.
CONTRACTOR
agrees to prosecute its Work in
-------------------------
accordance with the Contract and Exhibit A,
Scope of Work.
6.3 Construction
Drawings. CONTRACTOR shall furnish promptly to OWNER
all
-----------------------
drawings and schedules required in connection
with its Work,
but approval of
such drawings and schedules shall not
relieve CONTRACTOR of
its responsibility
of complying with the requirements of the
Drawings and
Specifications of OWNER.
CONTRACTOR shall take all field measurements necessary for its Work and
shall
assume responsibility for their
accuracy.
6.4 Approval of
Drawings. Detail,
design and schematic drawings of the Work
---------------------
shall be submitted electronically (via AMEC website)
by CONTRACTOR to the OWNER
for approval thereof. CONTRACTOR, upon request from OWNER, shall submit to
OWNER, for review only, all relevant design calculations. One (1) set of
drawings is to be marked by OWNER as "Approved", "Approved as Noted" or
"Disapproved as Noted" and returned to
CONTRACTOR. Provided CONTRACTOR and OWNER
agree with changes made by OWNER in drawings marked "Approval as Noted" or
"Disapproved as Noted" said drawings shall be corrected by CONTRACTOR and
provided to OWNER. If OWNER and CONTRACTOR agree that any of the changes or
modifications are outside the Scope of Work
or Project Progress Schedule, and if
changes or modifications are made after OWNER's written
approval (which is only
deemed to be provided if CONTRACTOR
has complied with all
procedures set
forth
in this Contract regarding change orders),
such changes or
modifications
could
adjust the Lump Sum Contract Price (either up or down) and/or the Project
Progress Schedule as provided in Section
6.13, Changes. CONTRACTOR shall utilize
the most reasonably expeditious means of
mail or electronic transmittal delivery
to assure timely submittal of drawings to
OWNER. The failure of OWNER to approve
or disapprove drawings within seven (7) Days after
receipt thereof shall be
construed as approval thereof by OWNER. Upon approval of such drawings, they
shall become part of the Contract deliverables. Approved drawings shall be
issued by CONTRACTOR and one (1) set of
electronic drawings will be furnished to
OWNER. Approval of drawings hereunder by
OWNER shall not constitute a waiver or
release of any kind, and shall not relieve
CONTRACTOR of its
responsibility to
comply fully and completely with the Scope
of Work, warranties,
representations
and all other commitments or
responsibilities set forth in this Contract.
CONTRACTOR shall
furnish to Owner one (1) electronic (via AMEC website)
certified drawing of machinery or equipment
procured by CONTRACTOR
as described
herein, including all applicable electrical wiring diagrams or to invoice
address shown above if not available
electronically.
CONTRACTOR shall
furnish to Owner an electronic version (via AMEC
Website) of installation, operation and maintenance
manuals and an
electronic
version of recommended spare parts list or
to invoice address shown above if not
available electronically.
6.5 As-Built
Drawings. Within sixty (60) Days after
Mechanical
Completion
-------------------
(as hereinafter defined) CONTRACTOR shall furnish to the OWNER one (1)
electronic version of drawings depicting the
Work as actually
completed; such
drawings shall show the "as-built"
details of the Work,
limited to MFDs, P&IDs,
electrical connection and underground.
Page 7 of 32
<PAGE>
6.6 Specifications
and Drawings.
----------------------------
6.6.1. Data Furnished by CONTRACTOR. The
CONTRACTOR shall furnish an electronic
-----------------------------
version of drawings and pertinent
instructions required for the installation and
operation of equipment supplied hereunder in accordance with the
provisions of
this Contract. A nominal charge will be made to cover the
cost of additional
copies. All copies of drawings, plans,
specifications and instructions developed
by CONTRACTOR for the Contract which are not owned by or subject to
confidentiality restrictions by a third party shall become the property of
OWNER. OWNER agrees that any reuse of such
drawings, plans,
specifications and
instructions without prior written verification
or adaptation by CONTRACTOR for
the specific purpose intended will be at
OWNER's sole risk and without liability
or legal exposure to CONTRACTOR.
All such drawings,
plans, specifications and
instructions shall at OWNER'S request be delivered to OWNER upon Mechanical
Completion of the Work, but CONTRACTOR may
retain and use copies thereof and any
technology embodied therein. Any data or
drawings required by the Contract to be
given to the OWNER identified as confidential or proprietary to a third
party
shall remain the property of such third
party, to be used only in connection
with the construction, operation and maintenance of the
equipment and shall not
be disclosed to third parties without the prior written consent of
CONTRACTOR/OWNER. Provided, however, that
any party which OWNER or its successor
wishes to hire to maintain, enhance, or add
to the Work may be permitted to view
and copy solely for such purposes any data or documents delivered to OWNER
pursuant to this Contract, to the extent necessary or helpful to perform the
duties for which such third party was retained. Provided, further, that no
confidentiality restrictions shall apply to information which
becomes publicly
available through no fault of the OWNER, is
independently developed by OWNER, or
was in the possession of OWNER or provided
to OWNER through some other source.
6.6.2. Data Furnished by OWNER.
The OWNER shall
furnish CONTRACTOR
with such
-----------------------
information as is specified in this
Contract to be the
responsibility of OWNER,
and CONTRACTOR shall be entitled to rely on
the accuracy and completeness of all
such information in the performance of
its Work hereunder.
OWNER shall furnish
the CONTRACTOR an electronic copy, if available, or hard copy of such
information required hereunder; additional
copies will be furnished upon request
by CONTRACTOR. Information regarding the
Jobsite, the business and operations of
OWNER, and any other information provided by the OWNER which is not
publicly
known and not developed independently by
CONTRACTOR shall remain the proprietary
and confidential property of OWNER and
shall not be disclosed to any third party
without the advance written consent of OWNER. Operational data regarding the
completed plant, including estimated production costs to produce
clinker from
the completed plant, and other sensitive
financial and
operational
information
regarding OWNER'S operation of the plant
shall remain the property of OWNER and
shall not be disclosed by the CONTRACTOR or its subcontractors to any party
without the advance written consent of OWNER. In the event any specification,
direction, design or innovation provided by
OWNER can be protected under patent
or other intellectual property laws, such intellectual property provided by
OWNER shall remain the sole and exclusive property of OWNER and no license
of
any intellectual property of OWNER is
deemed given by OWNER.
Page 8 of 32
<PAGE>
6.7 Storage of
Equipment and Materials. CONTRACTOR shall receive, unload,
----------------------------------
store, and take proper care of all
materials and equipment involved in this
Contract. All equipment and materials to be
stored or used at OWNER'S Plant Site
must be stored so as not to interfere
with the construction of the balance of
the Plant Site. Attention must be given to the storage of materials as no
watermarked, dirty, or marred materials
shall be accepted in the installation.
6.8 Safety.
CONTRACTOR shall
provide for safety precautions and programs in
-------
connection with its activities at the Jobsite and, in
connection
therewith,
shall comply with the requirements of MSHA, Occupational Safety and Health
Administration (OSHA), OWNER's Safety Procedures, and any and all state,
federal, and local regulations relating to the performance of the
Work at the
Jobsite.
CONTRACTOR shall submit to OWNER a copy of its Safety Procedures Manual
for OWNER'S approval.
All of CONTRACTOR'S
employees will be required upon entering onto
OWNER'S Plant Site to wear hard hats,
safety glasses, safety shoes and any other
protective equipment either required by law or
otherwise deemed
necessary for
the safety of OWNER'S employees as well as
CONTRACTOR'S employees.
CONTRACTOR shall comply with MSHA regulations. Citations arising as a
result of CONTRACTOR or its Subcontractors not following MSHA regulations
will
be for CONTRACTOR to pay or defend.
CONTRACTOR shall
provide safety training as required by MSHA for
CONTRACTOR'S employees who work on the Plant Site. This training must be
completed and written confirmation of such must be furnished to OWNER before
Work can commence. Training will be provided by CONTRACTOR obtaining an
MSHA-certified instructor permit and providing training as required by MSHA
under CFR Part 6 or Subpart 13.
6.9 Ingress and
Egress from OWNER'S
Premises. At all times
during the term
------------------------------------------
of this Contract, all of CONTRACTOR'S
employees shall ingress and egress OWNER'S
Jobsite using the entrance/construction
gate and parking area agreed to by OWNER
for CONTRACTOR'S workers adjacent to the Plant
Site. OWNER shall, at all times
necessary for CONTRACTOR'S performance under the Contract, provide free and
clear access to the Jobsite to CONTRACTOR, its agents, employees and
subcontractors.
6.10 OWNER'S Services.
OWNER shall at its expense provide CONTRACTOR with the
-----------------
following:
(a)
Information locating all above ground or underground utilities,
obstructions and
services (electrical,
water, gas, etc.) as known to
OWNER;
(b)
An Owner's
Representative
designated in writing
who shall be
authorized to act on OWNER'S behalf with respect to the
Contract;
(c)
All the required fuel, flushing oil, utilities, and raw
materials
required for
Dry Run Testing;
Page 9 of 32
<PAGE>
(d)
Accurate topographical
plans and subsurface data;
(e)
"First Fill" lubricant material;
(f)
Phone lines for CONTRACTOR to tie into for temporary
facilities;
(g)
Free and clear access
across the
Jobsite;
(h) All necessary operating and design data for OEM/BOP and
OWNER
supplied
equipment;
(i)
A prompt review and,
if acceptable, approval of CONTRACTOR
Drawings and
Specifications in
accordance
with this Contract and
any
other assistance that CONTRACTOR may reasonably require for
carrying out
the Work hereunder including prompt review and, if acceptable,
approval
of all equipment and
fabricated
items and vendor and
vendor-supplied
equipment
in accordance with this Contract, and prompt and timely
performance of
all OWNER required obligations;
(j)
Commercially
reasonable efforts
to help CONTRACTOR obtain
concrete, if
CONTRACTOR
so requests,
in the event it has
difficulty
obtaining same due to
local market
conditions; with no
obligation to
OWNER relating to the provision or failure to provide such
concrete; and
(k)
All of the items OWNER shall furnish in accordance with
Article 1.
6.11 CONTRACTOR'S
Representative.
The CONTRACTOR
shall employ a
qualified,
-----------------------------
competent representative who shall be in attendance at the site during the
progress of the Work and shall represent
the CONTRACTOR.
6.12 Concealed Conditions.
Should concealed
conditions be encountered in the
---------------------
performance of the Work below the surface of
the ground or should
concealed or
unknown conditions be at variance with the
conditions indicated by the documents
provided by OWNER to CONTRACTOR
and referenced in the
Basis of Price section of
the Scope of Work in Exhibit A, then the Lump Sum Contract Price and Project
Progress Schedule may be equitably adjusted by Change Order as hereinafter
defined in accordance with Section 6.13,
Changes. Such varying conditions may
include without limitation previously unknown subsurface and latent physical
conditions at the Jobsite, archeological finds of historical or cultural
significance, protected or endangered
species of plants and
animals, or other
conditions that may preclude CONTRACTOR from proceeding with the Work for
reasons of health, safety, or legal restriction. Without waiving its rights
hereunder, CONTRACTOR agrees to notify OWNER of such conditions promptly,
whereupon OWNER will promptly investigate the same and issue
appropriate orders
or instructions to CONTRACTOR.
6.13 Changes. The right is reserved by OWNER to
make changes in,
deviations
--------
from, additions to, and omissions from the
Work herein contracted, and the Lump
Sum Contract Price and Project Progress
Schedule shall be adjusted accordingly.
Before proceeding with any change,
deviation, addition or
omission,
CONTRACTOR
will first obtain written authorization from OWNER, to be
signed exclusively by
William O. Brown, or such person as OWNER or he may
designate in writing.
Any
and all changes to the Scope of Work and
the Lump Sum Contract
Price must first
be agreed to in writing by OWNER and
CONTRACTOR.
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<PAGE>
6.13.1 CONTRACTOR
shall be entitled to adjustments, in accordance with
Section 6.13.2,
in the Lump Sum
Contract Price and Project Progress
Schedule for the following events:
(a)
Any part of the Work is delayed by any act or failure to
act by
OWNER or third parties
performing
Work for OWNER to the
extent such
action is the
responsibility
of OWNER as set forth
in this Contract or
by Force Majeure as provided in Section 6.17;
(b)
CONTRACTOR'S
costs are increased due to changes in any
applicable laws, codes
or other governmental
regulations,
or OWNER'S
Safety Procedures,
subsequent to the
execution of this Contract, or a
substantial change in
the method of
imposition or
enforcement of any
applicable laws, codes
or regulations, or any
special requirements
of
any governmental authority;
(c)
CONTRACTOR'S
costs are increased due to encountering any
concealed or unknown
conditions in
accordance with
Section 6.12 above
unless such
conditions
are specified by this Contract to be the
responsibility of CONTRACTOR;
(d)
CONTRACTOR'S costs are
increased due to any
variance in design
conditions or other
information not otherwise required or specified by
this Contract, if any, provided by OWNER's Representative;
(e)
OWNER's request for or
approval of
performance of services not
otherwise required by
this Contract in excess of CONTRACTOR's standard
work day or
work week or such shorter times as are provided by
applicable collective
bargaining agreements or on a holiday customarily
observed by CONTRACTOR
(including
an allowance for loss
of efficiency
due to overtime work
or shift work);
or
(f)
any and all other events which entitle CONTRACTOR to a Change
Order pursuant to this Contract.
6.13.2 In connection
with any change,
addition or event
specified in
this Section 6.13,
CONTRACTOR shall promptly submit in writing to OWNER
pursuant to a mutually agreed upon procedure, such proposed adjustments
to the Lump Sum Contract Price (including for G&A and fee *
as a result
of the change or
addition), Project
Progress Schedule, and affected
Contractor obligations, if any; and OWNER and CONTRACTOR shall
negotiate
in good faith regarding the amount of such adjustments and shall
attempt
in good faith to agree in writing as to such adjustments. The parties
agree that, so far as reasonably possible, no additional Work shall be
performed until either
the amount of or nature of the adjustment with
respect thereto has
been mutually
agreed upon.
In no case,
however,
shall CONTRACTOR
perform any such
additional or
different Work
until
OWNER has authorized CONTRACTOR by Change Order to proceed
therewith.
In the event that OWNER and CONTRACTOR cannot agree on the
adjustment to
the Lump Sum Contract
Price, Project
Progress Schedule, or affected
Contractor obligations
for a Change Order to which CONTRACTOR is
entitled pursuant to
Section 6.13, upon
OWNER's written
direction to
CONTRACTOR, CONTRACTOR
shall proceed with the
additional or
different
Work provided in the Change Order and OWNER shall pay to CONTRACTOR
all
undisputed amounts and fifty percent (50%) of the disputed amounts
while
CONTRACTOR is
continuing
performance
until the dispute is finally
resolved.
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<PAGE>
In the event CONTRACTOR contends that it is entitled to a
Change Order,
but OWNER disagrees,
CONTRACTOR is under no
obligation to proceed with
such disputed Work. If however, OWNER issues CONTRACTOR a written
Change
Order for such Work,
CONTRACTOR shall
proceed with the disputed Work,
provided in the
Change Order and OWNER shall pay to CONTRACTOR all
undisputed amounts and fifty percent (50%) of the disputed amounts
while
CONTRACTOR is
continuing
performance
until the dispute is finally
resolved.
If any dispute is not resolved within thirty (30) Days of the
submission
in writing
by CONTRACTOR to OWNER of such proposed adjustments or
entitlement to a
Change Order,
CONTRACTOR
or OWNER may
submit such
dispute for resolution
in accordance with Article 8, Resolution of
Disputes. In the event
the Work is delayed pending such resolution, the
Arbitrators shall
schedule the Arbitration to be completed with a final
verdict not more than 90 Days after submission by either party.
6.13.3 CONTRACTOR
shall use all
commercially
reasonable
efforts to
reschedule and reallocate the Work in a manner that minimizes the
impact
of any Change Order on the overall cost and schedule of the
Project.
6.14 Protection of Work. It
is mutually agreed
that CONTRACTOR
will assume
-------------------
responsibility for protection of materials and
equipment left on the
Jobsite.
CONTRACTOR shall use reasonable efforts to continuously maintain adequate
protection of all its Work from damage,
such protection to include a watchperson
or watchpersons when necessary, and shall use reasonable
efforts to protect
OWNER'S property from injury or loss arising in
connection
with or resulting
from CONTRACTOR'S Work or materials or labor
necessary to perform
the Work in
this Contract. CONTRACTOR shall make good any such damage,
injury, or loss,
except such as may be caused by the
negligent act or omissions or intentional
misconduct or gross negligence of agents or
employees of OWNER.
CONTRACTOR will
be liable for the first $10,000 of loss per occurrence to the Work and/or
materials and equipment for which
CONTRACTOR is
responsible until
Substantial
Completion. Except to the extent CONTRACTOR is responsible
for loss or damage
pursuant to this Section 6.14, OWNER shall retain any and all
risk of loss or
damage to the Work (which will be deemed for purposes of this provision to
include any goods CONTRACTOR or its
subcontractors
or suppliers may
provide to
be installed). For loss or damage caused by
all other causes and for any amounts
in excess of this per occurrence
deductible, OWNER
agrees to look solely to the
proceeds of the OWNER-furnished insurance described in Article 7 for
recovery
for loss, and not seek recovery against
CONTRACTOR or any subcontractor for such
loss. CONTRACTOR shall take all necessary precautions for the safety of
CONTRACTOR'S employees on the Work, and it
shall designate a responsible member
of its organization on the Work, whose duty shall be the prevention of
accidents. The name and position of any
person so designated
shall be reported
to OWNER by CONTRACTOR. CONTRACTOR shall provide, at its expense, whatever
storage sheds, workshops and offices necessary for the performance of the
Contract, and shall remove the same upon the
completion of the Work. CONTRACTOR
shall clean up and remove from the Jobsite
as directed by OWNER, all rubbish and
debris. In no manner limiting the foregoing, CONTRACTOR shall remove all
construction debris from the Jobsite at such times as will keep
the Work area
safe and uncluttered and at any time
promptly upon request of OWNER.
Page 12 of 32
<PAGE>
6.15 Access to and
Inspection of Work.
CONTRACTOR shall
supervise, inspect
---------------------------------
and be responsible for the Work and shall perform the Work strictly in
compliance with the Drawings and
Specifications and all other provisions of this
Contract. OWNER and any mortgagee of OWNER, if any, their agents and
representatives shall, at all reasonable times,
and after prior notification to
CONTRACTOR, have the right of entry and free
access to inspect
all Work done,
labor performed and materials furnished in and about the
Jobsite, compliant
to
all CONTRACTOR and State or Federal Safety
Requirements.
6.16 Correction of Work. At
CONTRACTOR'S
sole cost and expense,
CONTRACTOR
-------------------
shall promptly correct, repair or replace
(the parties to mutually agree whether
to correct, repair or replace) any defective materials and/or workmanship
supplied by CONTRACTOR to conform to the Contract requirements. Provided,
however, if inspection reveals that any correction of Work performed by
CONTRACTOR was not due to defective
materials and/or workmanship supplied by
CONTRACTOR, such Work shall be treated as a
Change in accordance
with Section
6.13 above.
Should CONTRACTOR
refuse or neglect to proceed at once with the
correction of rejected or defective
materials and/or workmanship after receiving
notice to do so within the Warranty
Period, it is agreed that OWNER shall
have
the right and power to have the defects
remedied at the
expense of
CONTRACTOR,
and CONTRACTOR agrees to pay to OWNER within thirty (30) Days any and all
expense paid or directly incurred by OWNER in remedying
such defects
together
with interest thereon at the prime rate of
interest as published
from time to
time in the Wall Street Journal plus one percent (1%) until paid. CONTRACTOR
warrants all Work performed hereunder against defective materials and/or
workmanship, for a period of one (1) year
from the date of Mechanical Completion
(the "Warranty Period").
6.17 Delays and
Extension of Time.
If CONTRACTOR is delayed at any time
in
------------------------------
the progress of the Work, unless otherwise permitted by this Contract,
by (i)
any act or neglect of OWNER, or any employee of OWNER, or by such act of a
separate contractor or agent employed by OWNER, or (ii) Force Majeure (as
defined in Article 14), then the Project
Progress Schedule
shall be extended as
provided in Section 6.13. In addition to such
extension of time,
there may be
other adjustments in accordance with
Section 6.13.
CONTRACTOR shall give OWNER
notice of any delay affecting the Work as
soon as possible but in no event later
than five (5) Days after receipt of
knowledge of such delay. Notwithstanding the
foregoing, CONTRACTOR shall not be entitled to any extension of time or
increased payments because of an
