EXHIBIT 10.23
10/31/03
AGREEMENT NO. C-020
MINERA HECLA VENEZOLANA, C.A.
LA CAMORRA MINE
PRODUCTION SHAFT FACILITY
<PAGE>
AGREEMENT NO. C-020
PRODUCTION SHAFT FACILITY
PAGE 1 OF 3
AGREEMENT NO. C-020
LA CAMORRA MINE
PRODUCTION SHAFT FACILITY
MINERA HECLA VENEZOLANA C.A.
("OWNER")
AND
REDPATH VENEZOLANA C.A.
("CONTRACTOR")
DATED: OCTOBER 31, 2003
MINERA HECLA VENEZOLANA, C.A.
10/31/2003
LA CAMORRA MINE
<PAGE>
AGREEMENT NO. C-020
PRODUCTION SHAFT FACILITY
PAGE 2 OF 3
AGREEMENT NO. C-020
A.
MINERA HECLA VENEZOLANA C.A. (formerly Monarch Minera
Suramericana,
C.A.) a commercial company domiciled in Ciudad Guayana, Venezuela,
with
an office address at 6500 N. Mineral Drive, Suite 200, Coeur
d'Alene,
Idaho 83815-9408 (hereinafter referred to as "Owner")
and
B.
REDPATH VENEZOLANA C.A. a commercial company organized and
existing
under the laws of the State of Bolivar, Venezuela, with an
office
address at 1360 Greg Street, Suite 111, Sparks, Nevada 89431
(hereinafter referred to as "Contractor").
WITNESSETH, that in consideration of their
respective promises and obligations
herein set forth, the Owner and the
Contractor agree as follows:
1. THE
AGREEMENT: This Agreement is comprised of all of the
documents enumerated below (the " Agreement"). All of said
documents, in their entirety, comprise this Agreement and are
incorporated herein as if set forth at length. If conflict
exists within or between the Agreement and applicable industry
standards or applicable codes, ordinances or other legal
requirements, the more stringent requirements shall apply.
o
General Conditions - Section I
o
Special Conditions - Section II
o
Scope of Work
-
Section III
o
Schedule of Values - Section IV
o
Work Schedule
-
Section V
o
Specifications
-
Section VI
o
Technical Drawings - Section VII
o
Forms
-
Section VIII
MINERA HECLA VENEZOLANA, C.A.
10/31/2003
LA CAMORRA MINE
<PAGE>
AGREEMENT NO. C-020
PRODUCTION SHAFT FACILITY
PAGE 3 OF 3
2.
WORK, AGREEMENT TIME AND AGREEMENT PRICE :
a.- The Work means Production Shaft Facility as described in
Section III of the Agreement.
b.- Agreement Time means the time period provided for in the
Work Schedule of the Agreement.
c.- Agreement Price means the sum of Five-million nine-hundred
twelve thousand seven-hundred fourteen only Dollars
($5,912,714.00) that the Owner will pay to the Contractor as
the Agreement Price, in United States of America funds for
completion of the Work as provided in the General Conditions.
Both Agreement Price and Agreement Time are subject to all of
the Terms and Conditions in this Agreement.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement the day year
first above written.
REDPATH VENEZOLANA C.A.
MINERA HECLA VENEZOLANA C.A.
By: /s/ Chris Hickey
By: /s/ Tom Fudge
---------------------------------
----------------------------------
Name: Chris Hickey
Name: Tom Fudge
---------------------------------
----------------------------------
Title: General Manager
Title: President
---------------------------------
----------------------------------
MINERA HECLA VENEZOLANA, C.A.
2/27/2004
LA CAMORRA MINE
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AGREEMENT NO. C-020
SECTION I
GENERAL CONDITIONS
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SECTION I - GENERAL CONDITIONS
MINERA HECLA VENEZOLANA
ARTICLE 1 -
DEFINITIONS.......................................................1
1.1. THE
AGREEMENT........................................................1
1.2. THE
OWNER............................................................2
1.3. THE OWNER'S
REPRESENTATIVE...........................................2
1.4. THE
CONTRACTOR.......................................................2
1.5. THE
WORK.............................................................3
1.6. SUBCONTRACTOR;
SUB-SUBCONTRACTORS....................................3
1.7. THE JOB
SITE.........................................................3
1.8. THE
PROJECT..........................................................3
1.9.
PROVIDE..............................................................3
1.10.
PLANS................................................................3
1.11.
SPECIFICATIONS.......................................................3
1.12. AGREEMENT
TIME.......................................................3
1.13. AGREEMENT
PRICE......................................................4
ARTICLE 2 - THE AGREEMENT
DOCUMENTS...........................................4
2.1. EXECUTION,
INTENT AND INTERPRETATIONS................................4
2.2. COPIES
FURNISHED; OWNERSHIP..........................................5
2.3. NO ORAL
WAIVER.......................................................5
ARTICLE 3 -
OWNER.............................................................6
3.1. EASEMENTS AND
RIGHTS-OF-WAY..........................................6
3.2
ACCESS...............................................................6
ARTICLE 4 - THE OWNER'S
REPRESENTATIVE........................................6
4.1. CONTRACTUAL
RELATIONSHIPS............................................6
4.2.
ROLE.................................................................6
ARTICLE 5 -
CONTRACTOR........................................................7
5.1. REVIEW OF
AGREEMENT..................................................7
5.2. SUPERVISION AND
CONSTRUCTION PROCEDURES..............................7
5.3. MATERIALS AND
EQUIPMENT..............................................8
5.4.
WARRANTY.............................................................9
5.5. TAXES: FEES AND
LICENSES: ROYALTIES AND PATENTS......................9
5.6. COMPLIANCE WITH
LAWS................................................10
5.7.
TESTS...............................................................11
5.8. CONTRACTORS
REPRESENTATIONS AND WARRANTIES..........................12
5.9.
GENERAL.............................................................12
ARTICLE 6 -
SUBCONTRACTORS...................................................12
6.1.
GENERAL.............................................................12
6.2. AWARD OF
SUBCONTRACTS...............................................12
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6.3. SUBCONTRACTUAL
RELATIONS............................................13
6.4. PAYMENTS TO
SUBCONTRACTORS..........................................14
ARTICLE 7 - SEPARATE
CONTRACTS...............................................14
7.1. OWNER'S RIGHT TO
AWARD SEPARATE CONTRACTS...........................15
7.2. MUTUAL
RESPONSIBILITY OF CONTRACTORS................................15
ARTICLE 8 -
TIME.............................................................16
8.1.
DEFINITIONS.........................................................16
8.2. PROGRESS AND
COMPLETION; SCHEDULING.................................17
8.3. DELAYS,
EXTENSIONS OF TIME AND OVERTIME.............................18
8.4. TEMPORARY
SUSPENSION OF WORK........................................20
ARTICLE 9 - PAYMENTS AND
COMPLETION..........................................20
9.1. APPLICATIONS FOR
PAYMENT; PASSAGE OF TITLE..........................21
9.2. APPROVALS OF
APPLICATIONS FOR PAYMENT...............................22
9.3. PAYMENTS
WITHHELD; OWNER'S RIGHT TO MAKE DIRECT
PAYMENTS FOR
WORK...............................................23
9.4. SUBSTANTIAL
COMPLETION AND FINAL PAYMENT............................24
9.5. BENEFICIAL USE AND
OCCUPANCY; PARTIAL
SUBSTANTIAL
COMPLETION..........................................27
ARTICLE 10 - PROTECTION OF PERSONS AND
PROPERTY..............................27
10.1. RESPONSIBILITY FOR
SAFETY AND HEALTH................................27
10.2. PROTECTION OF WORK AND
PROPERTY;
RESPONSIBILITY FOR
LOSS........................................29
10.3. SURFACE OR SUBSURFACE
WATER.........................................31
10.4.
EMERGENCIES.........................................................31
10.5.
CLEANUP.............................................................31
10.6. OWNER'S
STANDARDS...................................................32
ARTICLE 11 -
INSURANCE.......................................................32
11.1 INSURANCE
FURNISHED BY OWNER........................................32
11.2 NO OTHER
INSURANCE FURNISHED BY OWNER...............................33
11.3 CONTRACTOR'S
INSURANCE; CERTIFICATES................................33
11.4 CANCELLATION;
ADDITIONAL INSUREDS...................................34
11.5
WAIVERS.............................................................34
11.6
CLAIMS..............................................................35
11.7 ALTERNATIVE
POLICIES................................................35
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ARTICLE 12 -
INDEMNIFICATION.................................................35
12.1.
INDEMNIFICATION.....................................................35
12.2.
GENERAL.............................................................36
ARTICLE 13 - CHANGES IN THE
WORK.............................................36
13.1. CHANGE ORDERS AND
DIRECTIVES........................................36
13.2. CHANGES REQUIRING AN
INCREASE IN AGREEMENT PRICE....................37
13.3. CHANGES REQUIRING A
DECREASE IN AGREEMENT PRICE.....................38
13.4. DISPUTES REGARDING
CHANGES..........................................39
13.5. AUDIT
RIGHTS........................................................39
ARTICLE 14 -
CLAIMS..........................................................40
14.1. CLAIMS FOR EXTENSIONS
OF AGREEMENT TIME.............................40
14.2. CLAIMS FOR INCREASES
IN AGREEMENT PRICE.............................40
ARTICLE 15 - UNCOVERING AND CORRECTION OF
WORK;
OWNER'S RIGHT TO CARRY OUT
WORK...............................41
15.1. UNCOVERING OF
WORK..................................................41
15.2. CORRECTION OF
WORK..................................................41
15.3. OWNER'S RIGHT TO CARRY
OUT WORK.....................................43
15.4. ACCEPTANCE OF
DEFECTIVE OR NON-CONFORMING WORK......................44
ARTICLE 16 - TERMINATION OF
CONTRACTOR.......................................44
16.1. TERMINATION BY OWNER
FOR CAUSE......................................44
16.2. TERMINATION BY OWNER
WITHOUT CAUSE..................................45
16.3. TERMINATION BY
CONTRACTOR FOR CAUSE.................................46
ARTICLE 17 - MISCELLANEOUS
PROVISIONS........................................46
17.1. GOVERNING
LAW.......................................................46
17.2. ASSIGNABILITY;
SUCCESSORS AND ASSIGNS...............................47
17.3.
NOTICE..............................................................47
17.4. PERFORMANCE AND
PAYMENT BONDS.......................................47
17.5. MAINTENANCE OF
HARMONIOUS RELATIONS.................................48
17.6. UNION
AGREEMENTS....................................................48
17.7. USE OF OWNER'S
NAME.................................................49
17.8. GENERAL WARRANTIES AND
REPRESENTATIONS..............................49
17.9.
GENERAL.............................................................50
ARTICLE 18 - EQUAL
OPPORTUNITY...............................................50
18.1. POLICIES OF
EMPLOYMENT..............................................50
18.2. ASSIGNABILITY;
SUCCESSORS AND ASSIGNS...............................51
18.3.
NOTICE..............................................................51
<PAGE>
ARTICLE 1
DEFINITIONS
1.1. THE AGREEMENT. This document, the
"General Conditions of the AGREEMENT for
Construction" (referred to herein as the
"General Conditions") is a part of the
AGREEMENT. The AGREEMENT represents the
entire and integrated agreement between
the parties hereto and supersedes all prior
negotiations, representations or
agreements, either written or oral. The
AGREEMENT and/or any portion thereof may
be amended or modified only by a
Modification, as defined below. The AGREEMENT
and the documents it comprises are as
follows: General Conditions, Special
Conditions, Scope of Work, Schedule of
Values, Work Schedule, Specifications,
and Technical Drawings. All of the
aforementioned documents are incorporated by
reference herein, as if set forth at
length. The AGREEMENT does NOT include
bidding documents, such as the Invitation
For Bids, the Invitation To Bid, the
Instructions to Bidders, the Contractor's
Bid or Bid Addenda.
1.1.1. An Addendum is a written or graphic instrument issued by
the
Owner prior to the execution of the
AGREEMENT which sets forth additions,
clarifications, deletions or other
revisions to the AGREEMENT, Bid and Pre-Bid
documents and other documents.
1.1.2. A Modification to the AGREEMENT or any of the documents
comprising the AGREEMENT may be
accomplished by: (a.) a Change Order; (b.) a
unilateral Directive by the Owner or its
representative; or (c.) any other
written amendment to the General Conditions
or other document comprising the
AGREEMENT. A Modification may be made only
after execution of the AGREEMENT. No
Directive shall be construed as a
Modification (e.g., Change Order, or Extra
Work Order) unless it expressly so
states.
1.1.3. A Change Order is a written Modification executed by
both
parties (except in the event of a
unilateral Change Order as herein provided)
and consisting of additions, deletions or
other changes to the AGREEMENT. A
Change Order may be accomplished by and/or
may identify additional or revised
Drawings, sketches or other written
instructions that become and form a part of
the AGREEMENT by virtue of the Change
Order. Except as otherwise noted herein, a
change in the Work, or a change in the time
for completion or in the AGREEMENT's
Price shall become the subject of a Change
Order.
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1.1.4. A Directive is a written document issued by the Owner or
its
representative consisting of additions,
deletions, clarifications or other
written instructions with respect to the
performance of the Work or the
activities of the Contractor (by way of
example, on the Job Site or the property
of the Owner). A Directive may include, but
shall not be limited to, a bulletin,
an engineering change, or other orders or
instructions. Directives may become
the subject of a Change Order, either
singularly or collectively. Directives
shall become the subject of a Change Order
if they involve a change in the
AGREEMENT time and/or AGREEMENT Price.
1.2. THE OWNER. The Owner, Hecla Mining
Company, is the organization identified
as such in the AGREEMENT. The term "Owner,"
whenever it appears in the
AGREEMENT, means the Owner and/or the
Owner's Representative acting on behalf
of, or for the benefit of the Owner [except
as otherwise specified in the
AGREEMENT (or General Conditions) or as the
context otherwise requires];
provided, however, that with respect to any
provisions of the General Conditions
which require the Contractor to provide
insurance for the protection of the
Owner or to release the Owner from, or
waive, any claims the Contractor may have
against it, the term "Owner" shall mean the
Owner and the Owner's
Representative, and the parent, related,
affiliated and subsidiary companies of
the Owner (if any) and the officers,
directors, agents, employees and assigns of
each, and shall, to the extent applicable,
include the parent, related,
affiliated and subsidiary companies of the
Owner's Representative and the
officers, directors, agents, employees and
assigns of each.
1.3. THE OWNER'S REPRESENTATIVE. The
Owner's Representative is the person or
organization designated from time to time
by the Owner to act as its
representative as identified in Paragraph
1.2 above, or the most current
Modification thereto.
1.4. THE CONTRACTOR. The Contractor is the
person or organization identified as
such in the AGREEMENT (including these
General Conditions). The Contractor shall
designate a sufficient number of Project
Representatives so there shall be at
least one authorized representative on the
Job Site at all times during which
Work is being performed including, without
limitation, a site manager (herein
referred to as the "Site Manager") to whom
the Project Representative(s) report,
and who shall at all times have authority
to act (in all capacities necessary
for the Work) for and bind the
Contractor.
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1.5. THE WORK. The Work is all labor,
equipment, materials, and other activities
required to complete "The Project", as
defined in Paragraph 1.8 and Articles 2.,
5., and 6. that also define AGREEMENT Time
and AGREEMENT Price.
1.6. SUBCONTRACTOR; SUB-SUBCONTRACTOR.
1.6.1. A Subcontractor is a person or organization having a
direct
agreement (i.e., contract) with the
Contractor to perform any of the Work at the
Job Site or to supply any materials and
equipment to be incorporated in, or
utilized in connection with the Work.
1.6.2. A Sub-subcontractor is a person or organization having a
direct
or indirect contract (on any tier) with a
Subcontractor to perform any of the
Work at the Job Site and to supply any
materials or equipment to be incorporated
in, or utilized in connection with, the
Work.
1.7. THE JOB SITE. The Job Site shall mean
the area in which the Work is to be
performed and such other areas as may be
designated by the Owner for the storage
of a Contractor's materials and
equipment.
1.8. THE PROJECT. The Project is the total
construction of which the Work may be
the whole or a part.
1.9. PROVIDE. Except as the context
otherwise requires, the term "provide" means
to furnish, fabricate, complete, deliver,
install and erect, including all labor
materials, equipment, apparatus,
appurtenances and expenses, necessary to
complete in place, ready for operation or
use under the terms of the AGREEMENT.
1.10 PLANS. Wherever the words "Plan" or
"Plans" are used in the General
Conditions or the documents comprising the
AGREEMENT, they shall be construed as
having the same meaning as Drawing or
Drawings (as referred to in the
AGREEMENT).
1.11 SPECIFICATIONS. The Specifications
shall include those referred to in the
AGREEMENT.
1.12 AGREEMENT TIME. The AGREEMENT Time
wherever it shall appear in the General
Conditions and throughout the AGREEMENT
shall be taken to mean
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the time required for completion of the
Work subject to all the terms and
conditions in the AGREEMENT.
1.13 AGREEMENT PRICE. The AGREEMENT Price
wherever it shall appear in the
General Conditions and throughout the
AGREEMENT shall be taken to mean the price
to be paid to the Contractor as set forth
in the Schedule of Values subject to
all the terms and conditions in the
AGREEMENT.
ARTICLE 2
THE AGREEMENT DOCUMENTS
2.1. EXECUTION, INTENT AND
INTERPRETATIONS.
2.1.1. The Contractor warrants and represents that, in executing
the
AGREEMENT and undertaking the Work, it has
not relied upon any oral inducement
or representation by the Owner, the Owner's
Representative or any of their
officers or agents as to the nature of the
Work, the Job Site, the Project
conditions or otherwise.
2.1.2. The documents comprising the AGREEMENT are complementary,
and
what is required by any one shall be as
binding as if required by all. If the
documents do not specifically allow the
Contractor a choice as to the quality or
cost of items to be furnished, but could be
interpreted to permit such a choice,
subject to confirmation or approval by the
Owner, they shall be construed to
require the Contractor to furnish the best
quality. Words and abbreviations
which have well-known technical or trade
meanings are used in The AGREEMENT
Documents in accordance with such
recognized meanings.
2.1.3. Where conflict exists within or between parts of the
AGREEMENT,
or between the AGREEMENT Documents and
either applicable industry standards or
applicable codes, ordinances or other legal
requirements, the more stringent
requirements shall apply. If the Contractor
is required to perform any extra or
corrective Work to comply with the prior
sentences, it shall not be entitled to
an increase in time for completion or for
money, and no claim shall result from
such compliance.
2.1.4. The organization of the Specifications into divisions,
sections
and articles, and the arrangement of
Drawings, are not intended to influence the
Contractor in its division of Work among
Subcontractors
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or its establishment of the extent of the
Work to be performed by any trade.
2.1.5. The Contractor
shall submit a written request to the Owner for
any interpretations it deems necessary for
the proper execution or progress of
the Work. Such interpretations shall be
issued in writing.
2.1.6. The terms of the Agreement are based on the geological,
political, currency, economic, social, work
force, Separate Contractors and
other conditions, factors and project
circumstances as they are believed by the
Contractor to exist, but the Owner does not
represent that such conditions,
factors and project circumstances actually
exist.
2.1.7. The Contractor shall conduct any tests, surveys or
investigations relating to the Job Site it
deems necessary or desirable prior to
the signing of this Agreement. Subject to
the next following sentence, the
Contractor shall accept full responsibility
for any loss sustained by it as a
result of any variances between its
understood Job Site-related conditions,
factors and project circumstances on which
the Agreement is based and the actual
Job Site-related conditions, factors or
project circumstances that exist or
occur during the progress of the Work. The
Contractor shall not be responsible
for conditions, factors and project
circumstances that could not be reasonably
anticipated at the time of the signing of
this Agreement.
2.1.8. The Contractor shall develop and maintain current
"as-built"
Plans to be provided to the Owner in
accordance with Subparagraph 9.4.2. The
Owner may inspect and copy such Plans at
any time during the course of the Work.
2.2. COPIES FURNISHED; OWNERSHIP. All
documents comprising or relating to the
AGREEMENT, and copies thereof furnished by
the Owner or the Owner's
Representative are and shall remain the
Owner's property. They are not to be
published or used by the Contractor on any
other project and, with the exception
of one complete set for the Contractor, are
to be returned to the Owner upon
completion of the Work.
2.3. NO ORAL WAIVER. The provisions of the
AGREEMENT cannot be amended,
modified, varied or waived in any respect
except by a Modification signed by the
Owner or its representative. The Contractor
is hereby given notice that no
person has authority to orally waive, or to
release the Contractor from, any of
the Contractor's duties or obligations
under or
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arising out of this Contract. Any waiver,
approval or consent granted to the
Contractor shall be limited to those
matters specifically and expressly stated
thereby to be waived, approved or consented
to and shall not relieve the
Contractor of the obligation to obtain any
future waiver, approval or consent.
Despite any prior waiver, approval or
consent as to any particular matter, the
Owner may at any time require strict
compliance with the AGREEMENT as to any
other matter.
ARTICLE 3
OWNER
3.1. EASEMENTS AND RIGHTS-OF-WAY. The Owner
shall obtain and pay for any
easements and rights-of-way required for
permanent structures.
3.2. ACCESS. The Owner shall at all times
have access to the Work at each and
every stage of preparation and progress.
The Contractor shall provide facilities
(including, without limitation, roadways)
for such access.
ARTICLE 4
THE OWNER'S REPRESENTATIVE
4.1. CONTRACTUAL RELATIONSHIPS. Nothing
contained in the AGREEMENT shall create
any contractual relationship between the
Owner's Representative and the
Contractor; provided , however, that the
Owner's Representative shall be deemed
to be a third party beneficiary of those
obligations of the Contractor to the
Owner's Representative as imposed by the
AGREEMENT (including, but not limited
to, the Owner's Representative's rights
pursuant to Paragraph 7.2. and Articles
10 and 11 of these General Conditions).
4.2. ROLE. Except as otherwise provided in
the AGREEMENT, and until the
Contractor is notified in writing to the
contrary, all actions to be taken by,
all approvals, notices, consent, directions
and instructions to be given by, all
notices and other matters to be delivered
to, all determinations and decisions
to be made by and, in general, all other
action to be taken by, or given to, the
Owner shall be taken, given and made by, or
delivered or given to, the Owner's
Representative in the name of and on behalf
of the Owner; provided, however,
that the Owner (and not the Owner's
Representative) shall be solely obligated to
the Contractor for all sums required to be
paid by the Owner to the Contractor
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hereunder. If the Owner is an organization,
then it shall, in turn, act through
such person or persons as it may designate
in writing from time to time. Only
those so designated are authorized to grant
on behalf of the Owner any approval,
consent or waiver with respect to the
AGREEMENT or the Work, or to otherwise act
for the Owner in any capacity
whatsoever.
ARTICLE 5
CONTRACTOR
5.1. REVIEW OF AGREEMENT. In addition to
the representations and warranties
contained in Article 9 of the AGREEMENT,
the Contractor acknowledges that prior
to execution of the AGREEMENT it has
thoroughly reviewed and inspected the
AGREEMENT, and satisfied itself regarding
any error, inconsistency, discrepancy,
ambiguity, omission, insufficiency of
detail or explanation. The Owner shall be
neither responsible for any costs, nor
liable to the Contractor for any damage,
resulting from any matter that the
Contractor should have reasonably discovered.
The Contractor shall perform no portion of
the Work at any time without the
approved relevant portion of the AGREEMENT
or, where required, shop drawings,
product data or samples for such portions
being on the A/E's action stamp, as
appropriate. Work performed in violation of
this provision shall be at the
Contractor's risk. Nothing in this
Paragraph 5.1. shall in any way limit the
effects of Article 9 of the General
Conditions.
5.2. SUPERVISION AND CONSTRUCTION
PROCEDURES.
5.2.1. The Contractor shall supervise and direct the Work, using
its
best skill and attention. The Contractor
shall be solely responsible for all
construction means, methods, techniques,
sequences, coordination, scheduling
(subject to Article 8) and procedures, for
all cleanup and for all safety and
weather precautions and programs, in
connection with the Work.
5.2.2. The Contractor shall employ a competent Site Manager and
necessary assistants who shall be in
attendance at the Job Site during the
progress of the Work and who shall be
satisfactory to the Owner. The Contractor
shall remove any of its employees or agents
(including,
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without limitation, the Site Manager) from
the Project upon instructions from
the Owner. The Site Manager shall not be
changed except with the consent of the
Owner unless the Site Manager ceases to be
in the Contractor's employ.
5.2.3. The Contractor shall be responsible to the Owner for the
acts
and omissions of its employees. It shall
also be responsible to the Owner for
the acts and omissions of its
Subcontractors and Sub-subcontractors, their
agents and employees, and other persons
performing any of the Work, in the same
manner as if they were the acts and
omissions of persons directly employed by
the Contractor.
5.2.4. The Contractor shall not be relieved of its obligations
to
perform the Work in accordance with the
AGREEMENT either by the activities or
duties of the Owner in its administration
of the Contract, including, without
limitation, by any inspections or tests
required or performed under Paragraph
5.7., or by approvals or other similar
action with regard to shop drawings or
submittal (of any type), or by the
activities of persons other than the
Contractor with respect to the Project.
Further, notwithstanding the fact that a
dispute, controversy or other question may
have arisen between the parties
hereto relating to the execution or
progress of the Work, the interpretation of
the documents comprising the AGREEMENT, the
payment of any monies, the delivery
of any materials or any other matter
whatsoever, the Contractor shall not be
relieved of its obligations to pursue the
Work diligently under the AGREEMENT
pending the determination of such dispute,
controversy or other question.
5.2.5 The Contractor shall establish, implement and supervise
the
submission of shop drawings and other
submittal (of any type) in accordance with
the schedule and any milestones and provide
all copies to Owner. The Contractor
shall note any variances between any such
shop drawings or other submittal and
the AGREEMENT for the benefit of the Owner
at the time of submission. No
approval or other similar action regarding
any such submission shall be binding
in any way upon the Owner.
5.3 MATERIALS AND EQUIPMENT
5.3.1. The Contractor shall, if so directed by the Owner, cause any
or
all materials and equipment to be
manufactured in advance, and be warehoused
either at the factory or elsewhere at the
Contractor's cost. The Contractor
shall cause all materials and equipment to
be delivered to
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the Job Site in accordance with any
schedule or schedules therefore established
from time to time and approved by the Owner
and, in any event, in a manner which
will assure the timely progress and
completion of the Work but will not encumber
the Job Site. Materials delivered to the
Job Site for incorporation in the Work
shall not be removed from the Job Site
without the consent of, or unless
directed by, the Owner.
5.3.2. The Owner may, from time to time during the performance of
the
Work and without any liability or
obligation whatsoever to the Contractor or any
of its Subcontractors or
Sub-subcontractors, direct the Contractor to relocate,
or cause to be relocated, to any other
location on or off the Job Site, as
designated by the Owner, any materials,
equipment, office or storage trailers,
storage sheds or the like brought onto the
Owner's property by the Contractor or
any of its Subcontractors or
Sub-subcontractors, with which directions the
Contractor shall promptly comply. Should
such relocation not be completed within
the time established by the Owner, the
Owner may accomplish such relocation and
offset the costs incurred by it in
accomplishing the same against any amounts
then or thereafter due to the
Contractor.
5.3.3. The Contractor shall give, or shall require its
Subcontractors
and their Sub-subcontractors to give, full
and accurate quality, performance and
delivery status reports, in a form
satisfactory to the Owner, regarding any
materials and equipment, or such other data
with respect thereto as may be
requested by the Owner, and shall obtain
for the Owner the written assurances of
any manufacturer that its material or
equipment is designed, and appropriate,
for the use intended.
5.4 WARRANTY. The Contractor warrants to
the Owner that all materials and
equipment furnished under this AGREEMENT
shall be new unless otherwise
specified, and that all Work shall be of
good quality, free from faults and
defects and in conformance with the
AGREEMENT. All Work not so conforming to
these standards may be considered
defective. This warranty is not limited by the
provisions of Paragraph 15.2. of these
General Conditions or Article 9 of the
AGREEMENT. All warranties and guarantees
from Subcontractors or
Sub-subcontractors (including, without
limitation, manufacturers) shall be
assignable to the Owner regardless of
whether it is so stated therein, and the
Contractor agrees to assign all such
warranties and guarantees to the Owner and
deliver them pursuant to Subparagraph
9.4.2. The Contractor's obligations under
this Paragraph shall survive the expiration
or sooner termination of the
AGREEMENT.
5.5. TAXES: FEES AND LICENSES: ROYALTIES
AND PATENTS.
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5.5.1. The Contractor shall pay, or cause to be paid, all import
duties
and sales, consumer, use, excise, value
added and ad valorem taxes required to
be paid in connection with the Work or upon
materials, tools or equipment
brought to the Job Site or used in the
Work. If any of the foregoing taxes are
not paid in a timely manner, the Owner may
withhold the amount of any such taxes
from any amounts owing to the Contractor
under the AGREEMENT, submit the amount
so withheld to the appropriate taxing
authority on behalf of the Contractor or
its Subcontractors or Sub-subcontractors
and offset said amount against the
AGREEMENT Price. The Contractor
acknowledges and agrees that the payments under
the Agreement will be subject to income tax
withholding in accordance with the
terms of the Partial Regulations of the
Income Tax Law Regarding Withholdings,
as well as other withholdings that may be
required from time to time under
Venezuelan or other applicable law. The
Contractor further agrees that all
invoices in connection to the Project
submitted to the Owner will conform to
Venezuelan law requirements so that they
are valid for income tax and value
added tax purposes.
5.5.2. The Contractor shall secure and pay for all governmental
fees,
permits and licenses which the Owner is not
specifically required to provide and
pay for under the AGREEMENT.
5.5.3. The Contractor shall pay all royalties and license fees
incident
to the use of any invention, design,
process or device which is the subject of
patent rights or copyrights held by others,
all of which shall be deemed
included in the AGREEMENT Price. The
Contractor shall not unlawfully use or
install any patented or copyrighted article
and shall indemnify the Owner from
and against all actions, suits, judgments,
losses, costs or expenses, including
attorneys' fees, arising out of any claims
for infringement of, or otherwise
related to, any patent rights or
copyrights. In the event of any injunction or
legal action arising out of any such
infringement which has the effect of
delaying the Work, the Owner may require
the Contractor to substitute such other
articles of like kind which will make it
possible to proceed with and complete
the Work, and all costs and expenses
occasioned thereby shall be borne by the
Contractor.
5.6. COMPLIANCE WITH LAWS. The Contractor
shall, at its cost and expense, comply
with each and every applicable U.S. and
Venezuelan Federal, State and local law,
ordinance, code, rule and regulation, as
well as the lawful order or decree of
any public or quasi-public
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authority, bearing on the performance of
the Work specifically including, but
not limited to, those specified in
Subparagraph 10.1.2., and all applicable
building codes. It shall be the
responsibility of the Contractor to familiarize
itself with all of the same, and any
performance of the Work by or on behalf of
the Contractor which is not in compliance
therewith shall be at the Contractor's
sole risk and expense. The Contractor shall
notify the Owner prior to execution
of the AGREEMENT (and, without limiting the
duty of such prior notice,
continuously thereafter) of any instances
where the AGREEMENT is, or where the
Contractor believes the AGREEMENT is, not
in compliance with the same.
5.7. TESTS.
5.7.1. If the AGREEMENT, or any laws, ordinance, rules,
regulations, or
any orders or decrees of any public or
quasi-public authority having
jurisdiction, or common practice in the
industry, require or dictate that the
Contractor have any portion of the Work
inspected, tested or approved, the
Contractor shall advise the Owner in a
timely manner (in writing, if
practicable) of its readiness and of the
date arranged so that the Owner may
observe such inspection, testing or
approval. The Contractor shall bear all
costs of such inspections, tests and
approvals except as otherwise specified.
5.7.2. The Owner may require any special inspection, testing or
approval of the Work not included under
Subparagraph 5.7.1., or any more
stringent inspection, testing or approval
thereof, in which event it shall
instruct the Contractor to order such
inspection, testing, or approval, and the
Contractor shall advise the Owner in a
timely manner (in writing, if
practicable) as in Subparagraph 5.7.1. If
such inspection or testing reveals any
failure of the Work or the performance
thereof to comply with the more stringent
of: (a.) the requirements of the AGREEMENT;
(b.) applicable industry standards;
or (c.) applicable laws, ordinances, codes
, rules, regulations or orders or
decrees of any public or quasi-public
authority having jurisdiction, or reveals
any defect in the Work, the Contractor
shall bear the costs of such inspection
or testing and all costs to correct the
Work to the satisfaction of the Owner,
which, if incurred by the Owner, may be
offset by the Owner against any amounts
held on behalf of the Contractor or then or
thereafter due to the Contractor. If
such inspection or testing proves that the
Work was performed properly, the
Owner shall bear the costs of such
inspection or testing.
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5.7.3. Required certificates of inspection, testing or approval
shall
be secured by the Contractor and promptly
delivered by it to the Owner.
5.8 CONTRACTORS REPRESENTATIONS AND
WARRANTIES. The Contractor represents and
warrants to the Owner that (a) it has the
necessary equipment, personnel, skill
and expertise to perform and to complete
the Work in accordance with the
Agreement Schedule, and is legally capable
of performing the Work in
Venezuela;(b) it will, except as
specifically stipulated otherwise in the
Agreement Documents, provide all the labor
materials, equipment, plant,
services, and facilities which are
necessary for the performance of, and
perform, all of the Work and fulfill all of
the obligations set out in the
Agreement Documents; and (c) will
diligently carry out the Work, and complete
all of the Work, in a manner which shall be
certified by the Owner as acceptable
and complete, within the AGREEMENT Time
shall be deemed to be material and of
the essence of this AGREEMENT.
5.9. GENERAL. The duties and
responsibilities of the Contractor as set forth in
this Article 5 are in addition to, and not
in lieu of, other duties and
responsibilities of the Contractor
enumerated elsewhere in the AGREEMENT.
ARTICLE 6
SUBCONTRACTORS
6.1. GENERAL. Nothing contained in the
AGREEMENT shall create any contractual
relationship between the Owner or the
Owner's Representative and any
Subcontractor or Sub-subcontractor.
However, it is acknowledged that the Owner
and the Owner's Representative are intended
third party beneficiaries of the
obligations of the Subcontractors and
Sub-subcontractors related to the Work and
the Project.
6.2. AWARD OF SUBCONTRACTS.
6.2.1. The Contractor shall, prior to awarding any subcontract,
notify
the Owner in writing of the names of all
Subcontractors proposed for the several
parts of the Work and shall include with
any notice the completed insurance
information form and any insurance
certificates required by this AGREEMENT for
any proposed Subcontractor. The Owner may
also require such lists and
information regarding any proposed
Sub-subcontractors. The Contractor shall also
advise the Owner in writing of any
Subcontractor or Sub-subcontractor with which
it shares any business
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relationship or financial interest, and of
the nature and extent of any such
relationship or interest. No Subcontractor
or Sub-subcontractor shall be engaged
if objected to by the Owner; provided,
however, that if the Owner does not take
exception to the Subcontractor or
Sub-subcontractor in writing within fifteen
(15) days of its receipt of such
notification, such Subcontractor or
Sub-subcontractor shall be deemed
acceptable to the Owner. The Owner shall not
be liable to the Contractor in any manner
arising out of the Owner's objection
to a proposed Subcontractor or
Sub-subcontractor. The Contractor shall not
terminate the employment of a Subcontractor
or Sub-subcontractor engaged in the
Work prior to the expiration of that
subcontract without good cause shown and
the Owner's prior approval after reasonable
notice of the Contractor's intent to
so terminate.
6.2.2. The Owner may, without any responsibility or liability
whatsoever, require the Contractor to
utilize any person or organization for any
portion of the Work as a Subcontractor or a
Sub-subcontractor (herein referred
to as a "Nominated Subcontractor" or
"Nominated Sub-subcontractor") provided the
Owner gave notice of its intention to so
nominate any such Subcontractor or
Sub-subcontractor prior to the execution of
the AGREEMENT. The Contractor shall
assume full responsibility for any such
Nominated Subcontractor or Nominated
Sub-subcontractor.
6.2.3 In the event the Owner and Contractor agree that the Owner
may
participate in any Subcontractor or
Sub-subcontractor procurement activities,
provided the Owner has informed the
Contractor and allowed the Contractor the
opportunity to participate and concur with
such activities, the Contractor shall
assume full responsibility for the results
of any such activities including,
without limitation, full responsibility for
the Sub-subcontractors' or
Sub-subcontractors' awarded portions of the
Work as a result thereof.
6.3. SUBCONTRACTUAL RELATIONS
6.3.1. All subcontracts and sub-subcontracts shall be in writing.
Each
subcontract and sub-subcontract shall
contain a reference to this AGREEMENT and
shall incorporate the terms and conditions
hereof to the full extent applicable
to the portion of the Work covered thereby.
Each Subcontractor must agree, for
the benefit of the Owner, to be bound by,
and to require each of its
Sub-subcontractors to be bound by, such
terms and conditions to the full extent
applicable to its portion of the Work.
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6.3.2. Each subcontract shall provide for its termination by
the
Contractor if, in the Owner's opinion, the
Subcontractor fails to comply with
the requirements of the AGREEMENT insofar
as the same may be applicable to its
portion of the Work; and each Subcontractor
shall be required to insert a
similar provision in each of its
sub-subcontracts. In the event of any such
failure by the Subcontractor or
Sub-subcontractor to comply with the
requirements of the AGREEMENT, such
Subcontractor or Sub-subcontractor, as the
case may be, shall be removed immediately
from the Work and shall not again be
employed on the Work. The Contractor shall
be responsible for all costs and
expenses arising out of, and shall
indemnify the Owner on account of any such
failure by a Subcontractor or
Sub-subcontractor [specifically including, without
limitation, a failure to pay for labor
(including applicable fringe benefits) or
materials].
6.4. PAYMENTS TO SUBCONTRACTORS.
6.4.1. Unless the Owner otherwise agrees or the AGREEMENT
otherwise
provide, the Contractor shall pay each
Subcontractor, upon receipt of payments
from the Owner, an amount equal to the
percentage of completion allowed to the
Contractor on account of such
Subcontractor's portion of the Work, less a
percentage thereof equal to the percentage
retained from payments to the
Contractor. The Contractor shall also
require each Subcontractor to make similar
payments due any Sub-subcontractor.
6.4.2. If the Owner fails to approve a Contractor's Application
for
Payment, as hereinafter provided, for any
cause which is the fault of the
Contractor and not the fault of a
particular Subcontractor, the Contractor shall
nevertheless pay that Subcontractor for its
portion of the Work to the extent
completed, less the retained percentage,
such payment to be made no later than
the date payment to the Contractor would
otherwise have been made by the Owner.
6.4.3. The Contractor shall pay each Subcontractor its proper share
of
any insurance monies received by the
Contractor under Article 11, and it shall
require each Subcontractor to make similar
payments due to a Sub-subcontractor.
ARTICLE 7
SEPARATE CONTRACTS
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7.1. OWNER'S RIGHT TO AWARD SEPARATE
CONTRACTS. The Owner reserves the right to
award other contracts in connection with
the Project or other work on the Job
Site on any terms and conditions which the
Owner may from time to time determine
in its sole discretion (hereinafter
referred to as "Separate Agreements"; and
such other contractors are hereinafter
referred to as "Separate Contractors").
7.2. MUTUAL RESPONSIBILITY OF
CONTRACTORS
7.2.1. The Contractor shall afford all Separate Contractors and
the
Owner reasonable opportunity for the
introduction and storage of their materials
and equipment and for the execution of
their work and shall properly cooperate,
connect and coordinate the Work with such
other work as shall be in the best
interest of the Project as determined by
the Owner.
7.2.2. If the execution or result of any part of the Work depends
upon
any work of the Owner or of any Separate
Contractor, the Contractor shall, prior
to proceeding with the Work, inspect and
promptly report to the Owner in writing
any apparent discrepancies or defects in
such work of the Owner or of any
Separate Contractors that render it
unsuitable for the proper execution or
result of any part of the Work. Failure of
the Contractor to so inspect and
report shall constitute an acceptance of
the Owner's or Separate Contractor's
work as fit and proper to receive the Work,
except as to defects which may
develop in the Owner's or Separate
Contractor's work after completion of the
Work and which the Contractor could not
have discovered by its inspection prior
to completion of the Work.
7.2.3. Should the Contractor cause damage to the work or property
of
the Owner or of any Separate Contractor on
the Project, or to other work on the
Job Site, or delay or interfere with the
Owner's or any Separate Contractor's
work, the Contractor shall be liable for
the same; and, in the case of a
Separate Contract, the Contractor shall
attempt to settle said claim with such
Separate Contractor prior to such Separate
Contractor's commencing litigation,
arbitration or other proceedings against
the Contractor. If so requested by the
parties to the dispute, the Owner may, but
shall not be obligated to, arbitrate
the dispute, in which event the decision of
the Owner shall be final and binding
on the parties to the dispute. If any
Separate Contractor sues the Owner or the
Owner's Representative on account of any
damage, delay or interference caused or
alleged to have been so caused by the
Contractor, the Owner
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shall notify the Contractor who shall
indemnify the Owner regarding such
proceedings, at the Contractor's
expense.
7.2.4. Should any Separate Contractor cause damage to the Work or
to
the property of the Contractor or cause
delay or interference with the
Contractor's performance of the Work, the
Contractor shall present to such
Separate Contractor any claims it may have
as a result of such damage, delay or
interference (with an information copy to
the Owner) and shall attempt to settle
its claim against such Separate Contractor
prior to the institution of
litigation or other proceedings against
such Separate Contractor. If so
requested by the parties of the dispute,
the Owner may, but shall not be
obligated to, arbitrate the dispute, in
which event the decision of the Owner
shall be final and binding on the parties
to the dispute. In no event shall the
Contractor seek to recover from the Owner
or the Owner's Representative, and the
Contractor hereby represents that it will
not seek to recover from them, any
costs, expenses or losses incurred by the
Contractor as a result of any damage
to the Work or property of the Contractor
or any delay or interference caused or
allegedly caused by any Separate
Contractor.
7.2.5. If a dispute arises between the Contractor and any
Separate
Contractor as to the responsibility for
cleaning as required by the AGREEMENT,
the Owner may clean and charge the cost
thereof to the responsible contractor,
or apportion it among several responsible
contractors, as the Owner shall
determine to be just.
ARTICLE 8
TIME
8.1. DEFINITIONS.
8.1.1. Whenever the word "day" is used in the AGREEMENT, it shall
mean
a calendar day unless otherwise
specifically provided.
8.1.2. The Date of Commencement of the Work is the date established
in
a written Notice to Proceed. If there is no
notice to proceed, it shall be the
date of the AGREEMENT or such other date as
may be established by the Owner in
writing.
8.1.3. The Date of Substantial Completion of the Work (or
"Substantial
Completion") is the date, certified by the
Owner, when all construction is
sufficiently complete in accordance with
the AGREEMENT
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that the Owner may if it so elects, occupy
and use the Work or designated
portion thereof for the purpose for which
it was intended.
8.2. PROGRESS AND COMPLETION;
SCHEDULING
8.2.1. All times and dates stated in the AGREEMENT including,
without
limitation, those for the Commencement,
prosecution, Milestones, Substantial
Completion and final completion of the Work
and for the delivery and
installation of materials and equipment,
are of the essence of the Contract.
8.2.2. The Contractor shall begin the Work on the Date of
Commencement
and shall perform the Work diligently,
expeditiously and with adequate resources
so as to meet all Milestones and complete
all the Work within the AGREEMENT
Time. The scheduling of the Work shall be
performed and monitored by the
Contractor utilizing a method to be chosen
by the Owner. The Contractor (and its
Subcontractors, if the Owner requires)
shall furnish all scheduling information
requested by the Owner (in such form and
detail as required for the particular
portion of the Work; herein referred to as
the "Schedule" or "Schedules") within
one (1) week of the Owner's request, shall
revise the same from time to time
thereafter when so requested by the Owner,
and shall attend such meeting
concerning scheduling as the Owner may call
from time to time. The Contractor
shall comply with any Schedule or Schedules
established by it and approved by
the Owner, or established by the Owner with
respect to the Commencement,
performance, Milestones or completion of
the whole or various portions of the
Work. With respect to any portion of the
Work for which a Schedule has not been
established, the Contractor shall commence
such portion of the work within three
(3) days of the date on which the Owner
directs such commencement and shall
thereafter prosecute and complete the same
with all due diligence or as
otherwise directed by the Owner. Neither
the scheduling information submitted by
the Contractor or its Subcontractors, the
acceptance or approval thereof by the
Owner nor the establishment or
implementation of, or failure to establish or
implement, schedules by the Owner shall not
relieve the Contractor of its
obligation to perform and complete the Work
in a timely manner or to otherwise
perform in accordance with the
AGREEMENT.
8.2.3. Float or slack times associated with any one chain of
activities
is defined as the amount of time between
earliest start date and latest start
date or between earliest finish date and
latest finish date for such activities,
as set forth in an approved Schedule for
the
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Work (assuming the critical path method is
used), including any revisions or
updates thereto. Float or slack time is for
the exclusive use or benefit of
either the Owner or the Contractor.
However, if float time associated with any
chain of activities is expended but not
exceeded by any actions attributable to
the Owner, the Contractor shall not be
entitled to an extension in the AGREEMENT
Time.
8.3. DELAYS, EXTENSIONS OF TIME AND
OVERTIME.
8.3.1. The time during which the Contractor is delayed in the
performance of the Work by the acts or
omissions of the Owner, the Owner's
Representative, acts of God, unusually
severe and abnormal climatic conditions
or other conditions beyond the Contractor's
control and which the Contractor
could not reasonably have foreseen and
provided against, shall be added to the
AGREEMENT Time stated in the AGREEMENT;
provided, however, that no claim by the
Contractor for an extension of time for
such delays shall be considered unless
made in accordance with Paragraph 14.1.
8.3.2. The Owner and the Owner's Representative shall not be
obligated
or liable to the Contractor for, and the
Contractor hereby expressly waives any
claims against them, on account of any
damages, costs or expenses of any nature
whatsoever which the Contractor, its
Subcontractors or its Sub-subcontractors
may incur as a result of any delays,
interferences, suspensions, rescheduling,
changes in sequence, congestion,
disruptions or the like, arising from or out of
any act or omission of the Owner, or any of
the events referred to in
Subparagraph 8.3.1 above, it being
understood and agreed that the Contractor's
sole and exclusive remedy in such events
shall be an extension of the AGREEMENT
Time, but only if claim is properly made in
accordance with the provisions of
Paragraph 14.1.
8.3.3. Whenever, in the opinion of the Owner, the Work falls
behind
Schedule due to the fault of the
Contractor, the Contractor shall, to the extent
necessary to meet said Schedule, increase
its labor force and/or provide
overtime, extra shifts, Saturday and Sunday
and/or holiday work, and shall have
each Subcontractor do likewise, all at no
additional cost to, or compensation
from, the Owner. Further, the Owner shall
have the right to offset against any
amounts then or thereafter due to the
Contractor, or to be reimbursed by the
Contractor for, any additional costs the
Owner may incur as a direct result of
said increase in labor force or overtime,
extra shifts, Saturday, Sunday and/or
holiday work.
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8.3.4. The Owner may, in its sole discretion and for any reason,
direct
the Contractor to accelerate the Schedule
of performance by providing overtime,
extra shifts, Saturday, Sunday and/or
holiday work and/or by having all or any
Subcontractors or Sub-subcontractors
designated by the Owner provide overtime,
extra shifts, Saturday, Sunday and/or
holiday work.
8.3.4.1. In the event of overtime, extra shifts, Saturday,
Sunday or holiday work by the Contractor's
own forces pursuant to this
Subparagraph 8.3.4., the Owner's sole and
exclusive obligation to the Contractor
(except as hereinafter provided) on account
thereof shall be to reimburse the
Contractor for the direct cost to the
Contractor of the premium time (or shift
differential for any extra shifts) for all
labor utilized by the Contractor in
such overtime, extra shifts, Saturday,
Sunday or holiday work [but not for the
straight time costs of such labor, together
with any Social Security and State
and Federal unemployment insurance taxes in
connection with such premium time
(or shift differentials) for any extra
shifts].
8.3.4.2. In the event of overtime, extra shifts, Saturday,
Sunday or holiday work by a Subcontractor
pursuant to this Subparagraph 8.3.4.,
the Owner's sole
