PROCUREMENT GENERAL CONDITIONS
Add#3 (LOX Re-Bid)
ARTICLE 1 – DEFINITIONS
Wherever used in these Procurement General Conditions or in the other Procurement Documents, the following terms have the meanings indicated which are applicable to both the singular and plural thereof.
Addenda – Written or graphic instruments issued prior to the opening of Bids which clarify, correct or change the bidding documents or the Procurement Documents.
Application for Payment – The form accepted by ENGINEER which is to be used by CONTRACTOR in requesting progress or final payments and which is to include such supporting documentation as is required by the Procurement Agreement.
Bid Submission – The offer or proposal of the Bidder submitted on the prescribed form setting forth the price(s) for furnishing the Goods and Special Services.
Bonds – Bid and performance bonds and other instruments of security.
Change Order – A written order to CONTRACTOR signed by OWNER authorizing an addition, deletion, or revision in the Goods or Special Services, or an adjustment in the Contract Price or the Contract Time issued after the effective date of the Procurement Agreement.
Contract – Same meaning as ‘Procurement Agreement’. Any reference to ‘Contract’ found anywhere in the Procurement Agreement, or the Procurement Documents, including but not limited to the Bidding Documents, Bid Submission, and the surety bonds required hereby, shall be interchangeable with the term ‘Procurement Agreement’ and vice versa.
Contract Price- The moneys payable by OWNER to CONTRACTOR under the Procurement Agreement as stated in the Agreement.
Contract Time- The total number of days or the dates stated in the Procurement Agreement for furnishing the Goods and Special Services.
CONTRACTOR – The person, firm, or corporation with whom OWNER has entered into the Procurement Agreement. The Contractor is also referred to herein as the “Manufacturer”, and/or “Vendor”, and/or “Supplier”.
Day – A calendar day of twenty-four hours measured from midnight to the next midnight.
Defective – An adjective which when modifying the words Goods or Special Services refers to Goods or Special Services which do not conform to the Procurement Agreement or do not meet the requirements of any inspection, reference standard, test or approval referred to in the Procurement Agreement.
Drawings – The drawings, if any, which show the character and scope of the Goods to be furnished and which have been prepared or approved by ENGINEER and are referred to in the Procurement Agreement.
Effective Date of the Procurement Agreement- The date indicated in the Procurement Agreement on which it becomes effective, or if no such date is indicated, the date on which the Procurement Agreement is signed and delivered by the last of the two parties to sign and deliver.
ENGINEER -The Director of Engineering, Passaic Valley Water Commission or his authorized representative.
ENGINEER’S Order – A written order issued by ENGINEER which clarifies or interprets the Procurement Agreement or orders minor changes or alterations in the Goods or Special Services to be furnished but which does not involve a change in the Contract Price or the Contract Time.
Goods – All tangible personal property required to be furnished under the Procurement Agreement.
Modification – (a) A written amendment of the Procurement Agreement signed by both parties, (b) a Change Order, or (c) an ENGINEER’s Order. A modification may only be issued after the effective date of the Procurement Agreement.
Notice of Award- The written notice by OWNER to the apparent successful Bidder stating that upon compliance by the apparent successful Bidder with the conditions precedent enumerated therein, within the time specified, OWNER will sign and deliver the Procurement Agreement.
OWNER – The public body or authority, corporation, association, partnership or individual with whom CONTRACTOR has entered into the Procurement Agreement. The Owner is also referred to herein as the “Passaic Valley Water Commission”, and/or the “Commission”, and/or “PVWC”.
Point of Delivery- The place designated in the Procurement Agreement where the Goods are to be delivered.
Procurement Agreement – The term Procurement Agreement refers collectively to the written contract between OWNER and CONTRACTOR and all of the other Bidding Documents and Procurement Documents which are incorporated therein by reference and made a part of said Agreement, including but not limited to the bid specifications, bid drawings (if any), addenda to the bid (if any), the Contract executed between the OWNER and CONTRACTOR, CONTRACTOR’s Bid Submission (including documentation accompanying the Bid and any post-Bid documentation submitted prior to the Notice of Award), the Surety Bonds, these Procurement General Conditions, the Procurement Supplementary Conditions (if any), as the same are more specifically identified in the Procurement Agreement, together with all Modifications issued after execution of the Procurement Agreement.
Shop Drawings- All drawings, diagrams, illustrations, schedules and other data which are specifically prepared by or for CONTRACTOR to illustrate some portion of Goods.
Special Services- Services to be furnished by CONTRACTOR pursuant to the Procurement Agreement.
Specifications – Those portions of the Procurement Agreement consisting of written technical descriptions of materials, equipment, construction systems, standards and workmanship as applied to the Goods and Special Services, and certain administrative details applicable thereto.
Work. Work refers to any and/or all of the Goods and Special Services that the CONTRACTOR owes or will owe to the OWNER under the Contract.
ARTICLE 2 – PRELIMINARY MATTERS
Delivery of Bonds:
- When CONTRACTOR delivers the executed Procurement Agreements to OWNER, CONTRACTOR shall also deliver to OWNER such Bonds as CONTRACTOR may be required to furnish in accordance with paragraph 4.1
Commencement of Contract Time:
- The Contract Time will commence to run on the effective date of the Procurement Agreement.
- CONTRACTOR shall, within ten days after the effective date of the Procurement Agreement, submit to ENGINEER any preliminary schedules of progress, shop drawing submissions, tests, and deliveries that my be required by the Procurement Agreement. No schedule which is required to be and has been accepted by ENGINEER will be changed by CONTRACTOR without notice to ENGINEER.
ARTICLE 3 – INTENT OF PROCUREMENT AGREEMENT
- The Procurement Agreement comprise the entire agreement between OWNER and CONTRACTOR concerning the furnishing of the Goods and Special Services. The Procurement Agreement may be altered only by a Modification.
- The Procurement Agreement are complementary; what is called for by one is as binding as if called for by all. If, during performance of the contract, CONTRACTOR finds a conflict, error or discrepancy in the Procurement Agreement, CONTRACTOR shall so report to ENGINEER in writing at once and shall obtain a written interpretation or clarification from ENGINEER before proceeding further.
- All materials, equipment and services that may reasonably be inferred from the Procurement Agreement as being required to produce the intended result will be supplied whether specifically called for or not. When words which have a well-known technical or trade meaning are used to describe materials, equipment or services, such words will be interpreted in accordance with such meaning. Reference to standard specifications, manuals or codes of any technical society, organization or association, or to the code of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual or code in effect at the time of opening of Bids (or, on the effective date of the Procurement Agreement if there were no Bids), except as may be otherwise specifically stated. However, no provisions of any referenced standard specification, manual or code (whether or not specifically incorporated by reference in the Procurement Agreement) shall change the duties and responsibilities of OWNER, CONTRACTOR or ENGINEER, or any of their agents, consultants or employees from those set forth in the Procurement Agreement. Clarifications and interpretations of the Procurement Agreement shall be issued by ENGINEER as provided in paragraph 9.2.
ARTICLE 4 – BONDS AND INSURANCE
Performance and Other Bonds
- CONTRACTOR shall furnish a performance bond in an amount at least equal to the Contract Price (unless otherwise provided) as security for the faithful performance of all CONTRACTOR’s obligations under the Procurement Agreement. This Bond shall remain in effect at least until one year after the date of final payment, except as otherwise provided by law. CONTRACTOR shall also furnish such other Bonds as are required by the Procurement Supplementary Conditions. All Bonds shall be in the forms prescribed by the Procurement Agreement and be executed by a Qualified Surety Company as that term is defined in the Bidding Documents. No other sureties will be accepted. To the fullest extent permitted by law, the OWNER reserves the right to reject any surety which otherwise meets the above definition of a “Qualified Surety Company” if: (a) the OWNER is in litigation with that surety; (b) the OWNER has had a prior negative experience with that surety; or (c) any other just and reasonable cause.
- If the surety on any Bond furnished by CONTRACTOR is declared a bankrupt or becomes insolvent or its right to do business is terminated in the state of the point of delivery or the surety ceases to meet the requirements of paragraph 4.1 CONTRACTOR shall within five days thereafter substitute another Bond and surety, both of which must be acceptable to OWNER.
- Unless otherwise provided in the Procurement Supplementary Conditions, CONTRACTOR shall assume all risk of loss or damage to the Goods prior to delivery including its movement into the OWNER’s cryogenic tanks; and shall purchase and maintain insurance on the Goods during the process of fabrication and while in transit to insure against the perils of fire and extended coverage including “all risk” insurance for physical loss and damage including theft, vandalism and malicious mischief, collapse, water damage and such other perils as may be provided in the Procurement Supplementary Conditions and as CONTRACTOR deems appropriate.
4.4. Licensed Insurers; Certificates of Insurance:
4.4.1. All insurance policies with terms as required by the Procurement Agreement to be purchased and maintained by CONTRACTOR shall be obtained from insurance companies licensed in the State of New Jersey that have ratings of an “A” or better (A.M. Best’s) through insurance agents duly authorized and licensed to assist in the procurement of same.
4.4.2. CONTRACTOR shall deliver to OWNER certificates of insurance for all of the insurance which CONTRACTOR is required to purchase and maintain in accordance with Article 4.5.
4.4.3. In addition to any certificates of insurance, CONTRACTOR shall deliver to OWNER endorsements showing any additions or amendments to its policies as needed to comply with the Contract. Blanket endorsements may be used in place of an endorsement if the blanket endorsement achieves the same result for the OWNER as would an endorsement.
4.5 CONTRACTOR’s Liability Insurance:
Before commencing Work, CONTRACTOR shall purchase and maintain such liability and other insurance as required by the Contract, and additional coverage if necessary or appropriate for the Work being performed and furnished (hereinafter collectively “CONTRACTOR’s Insurance”). Each such policy of insurance shall include the OWNER, its Commissioners officers and employees (hereinafter collectively “Additional Insureds”). The policy limits required of the CONTRACTOR herein, and the policy limits applicable to covering the Additional Insureds in accordance herewith, shall be at the same levels.
4.5.1. Protection for Additional Insureds. CONTRACTOR’s Insurance policies shall extend insurance coverage to the Additional Insureds to protect the Additional Insureds from any and all third-party claims alleging personal injury or property damage related to the Procurement Agreement. CONTRACTOR shall provide proof to the OWNER that it extended coverage to the Additional Insured by endorsement to its policy(ies) and any renewals during the term of the Procurement Agreement.
4.5.2. Coverage Terms. The policies of insurance so required by this paragraph 4.5 to be purchased and maintained shall:
22.214.171.124 include the specific coverages and be written for the limits of liability provided in this Article, or in the Procurement General Conditions and/or Procurement Supplementary Conditions if any, or required by Laws or Regulations, whichever is greater;
126.96.36.199 include the following coverages, sub-coverages, or endorsements as the case may be within general liability: premises, products-completed operations, use of independent contractors and subcontractors, broad form contractual, and broad form property damage endorsement;
188.8.131.52 include contractual liability insurance covering CONTRACTOR’s indemnity obligations.
184.108.40.206 include operations coverage within general liability whether such operations are by the CONTRACTOR or by anyone directly or indirectly employed by the CONTRACTOR;
220.127.116.11 include automobile liability with a combined, single limit of liability per occurrence for bodily injury and property damage and covering the following: owned automobiles, hired automobiles, and non-owned automobiles;
18.104.22.168 include Excess Liability coverage, with drop-down provision, providing coverage in excess of all limits CONTRACTOR’s primary liability coverages (when the required underlying limits of excess carrier are less than those required by the Contract, the lower underlying limits will be acceptable);
22.214.171.124 contain a provision or endorsement that the coverage afforded will not be canceled, materially changed or renewal refused until at least thirty (30) days prior written notice has been given to OWNER and CONTRACTOR;
126.96.36.199 contain a provision or endorsement that coverage is primary and non-contributory and that the insurer(s) waive any right of subrogation against the OWNER and other Additional Insureds;
188.8.131.52 remain in effect at least until final completion of the Procurement Agreement and at all times thereafter when CONTRACTOR may be correcting, removing or replacing defective Work;
184.108.40.206 provide for either the elimination of the XCU (Explosion, Collapse, Underground) exclusion from the general liability policy or proof that XCU is covered; and
220.127.116.11 provide for Employer’s Liability coverage together with Worker’s Compensation coverage.
4.5.4. Coverages and Limits. The CONTRACTOR has the option of procuring coverages with minimum policy limits as shown in Option A or in Option B.
|Coverage||Minimum Policy Limits/Terms|
|Workers Compensation||As per applicable law|
|Employer’s Liability||$1,000,000 per occurrence / $1,000,000 in aggregate.|
|General Liability (Premises, Products-Completed Operations, Operations, Use of Independent Contractors and Subcontractors, Broad Form Contractual, and Broad Form Property Damage Endorsement).||$1,000,000 per occurrence / $2,000,000 in aggregate. Must be written on an occurrence form.|
|Auto (bodily injury and property damage combined, occurrence form).||$1,000,000 combined single limit. Must be written on an occurrence form.|
|Excess Liability/Umbrella Liability (occurrence).||$5,000,000 per occurrence and in aggregate on a ‘follow form’ basis|
|Coverage||Minimum Policy Limits/Terms|
|Workers Compensation||As per applicable law|
|General Liability (Premises, Products-Completed Operations, Operations, Use of Independent Contractors and Subcontractors, Broad Form Contractual, and Broad Form Property Damage Endorsement).||$5,000,000 per occurrence / $5,000,000 in aggregate. Must be written on an occurrence form.|
|Auto (bodily injury and property damage combined, occurrence form).||$10,000,000 combined single limit. Must be written on an occurrence form.|
4.5.5. Proof of Insurance Prior to Commencing Work. The CONTRACTOR shall not commence Work under the Procurement Agreement until he has obtained all insurance required under the Contract, and such insurance has been approved by the OWNER.
4.5.6. Blanket Endorsements. Whenever an endorsement to a policy is required to be supplied to the OWNER pursuant to the Procurement Agreement, the CONTRACTOR may satisfy those requirements by submitting a blanket endorsement(s) provided that the OWNER’s rights hereunder are not diminished or limited thereby.
4.6. The OWNER, at OWNER’s sole option and benefit and in OWNER’s sole discretion, may purchase and maintain at OWNER’s expense OWNER’s own liability insurance in an effort to help protect OWNER against claims which may arise from operations under the Procurement Agreement. However, under no circumstances would OWNER’s election to procure or not procure additional coverage pursuant to this paragraph diminish in any way the insurance obligations of the CONTRACTOR, its insurers, and its subcontractors and suppliers under these Procurement Agreement.
ARTICLE 5 – SHIPMENT AND DELIVERY OF THE GOODS
Shipments and delivery of the Goods shall be in accordance with this Article except as otherwise provided or specified.
- All Goods will be delivered f.o.b. point of delivery. CONTRACTOR shall select the means and methods of transportation. All transportation charges, including but not limited to switching, trucking, lighterage and special handling will be the responsibility of, and paid by, CONTRACTOR.
- CONTRACTOR shall give OWNER and ENGINEER at least fifteen days’ prior written notice of the date when the Goods will be ready for shipment and the manner of shipment. Such notice will include instructions concerning any special equipment or services required at the point of delivery to unload and care for the Goods. CONTRACTOR also shall require the carrier to give OWNER not less than 24 hours notice by telephone of the anticipated hour of delivery.
- OWNER shall provide facilities for receipt and unloading of the Goods. If the point of delivery is a construction site, OWNER shall provide the carrier reasonable access within the site to the point of delivery.
- CONTRACTOR shall deliver the Goods to the point of delivery within a period of fifteen days (the “delivery period”) prior to expiration of the Contract Time for delivery specified in Procurement Agreement.
- OWNER will not be obligated to accept any delivery of goods not made within the delivery period. Additional costs arising from delivery prior to or after the delivery period will be the responsibility of CONTRACTOR.
- OWNER may by Change Order direct CONTRACTOR to ship to another point of delivery or to accelerate or postpone the delivery period. OWNER shall be responsible for additional expenses incurred by CONTRACTOR as a result of any such direction, including but not limited to charges for storage, reconditioning, handling, overtime and insurance. If CONTRACTOR believes that any such direction justifies an increase in the Contract Price or Contract Time, CONTRACTOR may make a claim therefor as provided in Article 11 or Article 12.
- Provided that the Goods delivered and unloaded are in the quantity and apparent condition ordered by the OWNER or ENGINEER, and if there are no apparent defects in the Goods, the OWNER shall be deemed to have conditionally accepted delivery of the Goods. If there are apparent defects in the Goods (through damage or otherwise), ENGINEER will give prompt written notice thereof to CONTRACTOR as soon as ENGINEER is aware of same. CONTRACTOR shall without cost to OWNER correct the defect or replace the Goods with non-defective Goods. If CONTRACTOR does not do so promptly and to the satisfaction of OWNER and ENGINEER, despite having been provided notice and the opportunity to cure the defect as provided for here, the OWNER may, upon ENGINEER’s recommendation, either: (i) replace CONTRACTOR’s defective Goods with the goods of a competitor’s whose goods would not be “defective” as defined herein, or (ii) accept delivery of the defective Goods and remedy the defect as appropriate, with an appropriate reduction in the Contract Price in either case. OWNER may refuse to accept delivery of any Goods that are apparently defective. Notwithstanding the timing of any testing or inspection of the Goods, the OWNER will not be deemed to have conditionally accepted a delivery of Goods or accepted the Goods, until after the Goods are delivered, unloaded, transferred and stored in the OWNER’s cryogenic storage tanks.
- Notice of OWNER’s conditional acceptance of delivery can be provided to CONTRACTOR at CONTRACTOR’s request after the delivered Goods are placed in the OWNER’s cryogenic holding tanks by a receipted copy of the shipping documents or as otherwise provided.
ARTICLE 6 – APPLICATIONS FOR PAYMENT
6.1 CONTRACTOR shall submit to ENGINEER for review Applications for Payment filled out and signed by CONTRACTOR and accompanied by such supporting documentation as is required by the Procurement Agreement and as ENGINEER may reasonably require. Applications for payment will be accompanied by a bill of sale and other documentation satisfactory to OWNER warranting that OWNER has received the Goods free and clear of all liens, charges, security interests and encumbrances.
Review of Applications for Progress Payments:
6.2 ENGINEER will, within ten days after receipt of each Application for Payment, either indicate in writing a recommendation of payment and present the Application to OWNER, or return the Application to CONTRACTOR indicating in writing ENGINEER’s reasons for refusing to recommend payment. ENGINEER’S recommendation of payment will constitute a representation by ENGINEER to OWNER, that to the best of ENGINEER’s knowledge, information and belief ENGINEER has identified the Goods listed in the application for Payment and generally verified the quantities as being in accordance with the Procurement Agreement, that on the basis of such limited inspection there are no apparent defects in the Goods, and that the Goods appear to be suitable for installation. Such recommendation will not constitute a representation that ENGINEER had made a final inspection of the Goods, that the Goods are free from defects, acceptable or in conformance with the Procurement Agreement or that ENGINEER has made any investigation as to the OWNER’s title to the Goods. ENGINEER may refuse to recommend that all or any part of a progress payment be made if, in ENGINEER’s opinion, such recommendation would be incorrect or if on the basis of subsequently discovered evidence or subsequent inspections or tests ENGINEER considers such refusal necessary to protect OWNER from loss because the Contract Price has been reduced due to Modifications, Goods are found defective, or CONTRACTOR has failed to furnish acceptable Special Services.
Amount and Timing of Progress Payments:
6.3 The amounts of the progress payments will be as provided in the Procurement Agreement. OWNER shall within thirty days after receipt of each Application for Payment with ENGINEER’s recommendation pay CONTRACTOR the amount recommended, less the OWNER has a reason to deny payment in whole or in part, which reason the OWNER shall provide to the CONTRACTOR at its earliest opportunity.
ARTICLE 7 – CONTRACTOR’S RESPONSIBILITIES
Supervision and Coordination:
7.1 CONTRACTOR shall competently and efficiently supervise and direct production of the Goods and furnishing of Special Services and coordinate all operations required to deliver the Goods and furnish Special Services. CONTRACTOR shall designate in writing to OWNER and ENGINEER a person with authority to act on behalf of CONTRACTOR with respect to CONTRACTOR’s obligations under the Procurement Agreement, and all communications given to or received from that person will be binding on CONTRACTOR. Except as specifically provided in the Procurement Agreement with respect to Special Services or otherwise, CONTRACTOR shall not be required to perform services at the site.
7.2 Special Services will be performed by competent and qualified personnel.
7.3 Whenever materials or equipment are specified or described in the Procurement Agreement by using the name of proprietary item or the name of a particular manufacturer, fabricator, supplier or distributor, the naming of the item is intended to establish the type, function and quality required. Unless the name is followed by words indicating that no substitution is permitted, materials or equipment of other manufacturers, fabricators, suppliers or distributors may be accepted by ENGINEER if sufficient information is submitted by CONTRACTOR to allow ENGINEER to determine that the material or equipment proposed is equivalent to that named. The procedure for review by ENGINEER will be as set forth in paragraphs 7.3.1 and 7.3.2 as supplemented in the General Requirements.
7.3.1 Requests for review of substitute items of material or equipment will not be accepted by ENGINEER from anyone other than CONTRACTOR. If CONTRACTOR wishes to furnish or use a substitute item of material or equipment, CONTRACTOR shall make written application to ENGINEER for acceptance thereof certifying that the proposed substitute will perform adequately the functions called for by the general design, be similar and of equal substance to that specified and be suited to the same use and capable of performing the same function as that specified. The application will state that the evaluation and acceptance of the proposed substitute will not prejudice the timely delivery of the Goods, whether or not acceptance of the substitute will require a change in any of the Procurement Agreement to adapt the design to the substitute and whether or not incorporation or use of the substitute in connection with the production of the Goods is subject to payment of any license fee or royalty. All variations of the proposed substitute from that specified will be identified in the application and available maintenance, repair, and replacement service will be indicated. ENGINEER may require CONTRACTOR to furnish at CONTRACTOR’s expense additional data about the proposed substitute. ENGINEER will be allowed a reasonable time within which to evaluate the proposed substitute and will be the sole judge of acceptability, and no substitute will be ordered or installed without ENGINEER’S prior written acceptance. OWNER may require CONTRACTOR to furnish at CONTRACTOR’s expense a special performance guarantee or other surety with respect to any substitute.
7.3.2 ENGINEER will record time required by ENGINEER and ENGINEER’s consultants in evaluating substitutes proposed by CONTRACTOR and in making changes in the Procurement Agreement occasioned thereby. Whether or not ENGINEER accepts a proposed substitute, CONTRACTOR shall reimburse OWNER for the charges of ENGINEER and ENGINEER’s consultants for evaluating proposed substitutes.
7.3.3 Notwithstanding anything to the contrary, the ENGINEER and the OWNER are under no obligation to accept the CONTRACTOR’s substitute or any deviation from the goods, material, or equipment specified in the Procurement Agreement if the CONTRACTOR’s proposed substitute does not match the type and character of goods that the OWNER wishes to procure.
Patent Fees and Royalties:
7.4 CONTRACTOR shall pay all license fees and royalties and assume all costs incident to the use in production of the Goods or the incorporation in the Goods of any invention, design, process, product or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product or device is specified in the Procurement Agreement for use in producing the Goods and if to the actual knowledge of OWNER or ENGINEER its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by OWNER in the Procurement Agreement. CONTRACTOR shall indemnify and hold harmless OWNER and ENGINEER and anyone directly or indirectly employed by either of them from and against all claims, damages, losses and expenses (including attorneys’ fees) arising out of any infringement of patent rights or copyrights incident to the use in production of the Goods or incorporation therein of any invention, design, process, product or device not specified in the Procurement Agreement, and shall defend all such claims in connection with any alleged infringement of such rights.
7.5 CONTRACTOR shall pay all sales, consumer, use and other similar taxes, required by law to be paid in respect of the production and delivery of the Goods and the furnishing of Special Services.
Shop Drawings and Samples:
7.6 If the Procurement Agreement requires CONTRACTOR to submit shop drawings, then CONTRACTOR shall submit to ENGINEER, in accordance with the accepted schedule of Shop Drawings submissions, five copies (unless otherwise specified) of all Shop Drawings which will have been checked by and bear a specific notation or indication of approval of CONTRACTOR and be identified as ENGINEER may require. The data shown on the Shop Drawings will be complete with respect to dimensions, design criteria, materials of construction and like information to enable ENGINEER to review the information as required.
7.7 If the Procurement Agreement requires CONTRACTOR to submit samples, CONTRACTOR shall also submit to ENGINEER, with such promptness, as to cause no delay in the timely production of the Goods, all samples required by the Procurement Agreement. All samples will have been checked by and accompanied by a specific indication of approval of CONTRACTOR, and will be identified clearly as to material, manufacturer, any pertinent catalog numbers and the use for which intended.
7.8 At the time of each submission, CONTRACTOR shall in writing call ENGINEER’s attention to any deviations that the Shop Drawings or samples may have from the requirements of the Procurement Agreement.
7.9 ENGINEER will review and approve with reasonable promptness Shop Drawings and samples, but ENGINEER’s review and approval will be only for conformance with the design concept of the Goods and for compliance with the information given in the Procurement Agreement. Such review and approval will not extend to design data reflected in Shop Drawings which is peculiarly within the special expertise of CONTRACTOR or any party dealing directly with CONTRACTOR. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions. CONTRACTOR shall make corrections required by ENGINEER and shall return the required number of corrected copies of Shop Drawings and, if necessary, shall submit new samples for review and approval. CONTRACTOR shall direct specific attention in writing to revisions other than the corrections called for by ENGINEER on previous submittals. CONTRACTOR’s submission of any Shop Drawing or sample bearing CONTRACTOR’s approval shall constitute a representation to OWNER and ENGINEER that CONTRACTOR assumes full responsibility for having determined and verified the design criteria, quantities, dimensions, installation requirements, materials, catalog numbers, and similar data and that CONTRACTOR has reviewed or coordinated each Shop Drawing or sample with the requirements of the Procurement Agreement; however, it shall not be CONTRACTOR’s primary responsibility to make certain that the Goods are in accordance with the requirements of applicable laws, ordinances, rules or regulations.
7.10 When a Shop Drawing or sample is required by the Specifications, CONTRACTOR shall not commence production of any part of the Goods affected thereby until such Shop Drawing or sample has been reviewed and approved by ENGINEER.
7.11 ENGINEER’s review and approval of Shop Drawings or samples will not relieve CONTRACTOR from responsibility for any deviations from the Procurement Agreement unless CONTRACTOR has in writing called ENGINEER’s attention to such deviation at the time of submission and ENGINEER has given written concurrence and approval to the specific deviation, nor will any concurrence or approval by ENGINEER relieve CONTRACTOR from responsibility for errors or omissions in the Shop Drawings.
7.12 CONTRACTOR shall continue performance of the Procurement Agreement during all disputes or disagreements with OWNER. No production of Goods will be delayed or the timely delivery of Goods or furnishing of Special Services be prejudiced, delayed or postponed pending resolution of any disputes or disagreements, except as CONTRACTOR and OWNER may otherwise agree in writing.
ARTICLE 8 – OWNER’S RESPONSIBILITIES
- OWNER shall issue all communications to CONTRACTOR through ENGINEER.
- OWNER shall furnish the data required of OWNER under the Procurement Agreement promptly and shall make payment to CONTRACTOR when due.
- In connection with OWNER’s rights to order changes in accordance with Article 10, OWNER is obligated to execute Change Orders.
- OWNER shall provide CONTRACTOR, CONTRACTOR’s representatives, testing agencies and other governmental agencies with jurisdictional interests, proper and safe access to the site at reasonable times as is necessary for performance of their functions in connection with the Procurement Agreement.
- Goods are sold on the condition that they be handled, used and disposed of in conformance with recognized industry and professional standards, including those related to the protection of human health and the environment. OWNER acknowledges that Liquid Oxygen presents potential hazards and that it understands such hazards. It is the responsibility of OWNER to warn third parties of the presence of liquid oxygen and the extent to which it could present a hazard. OWNER shall have the sole responsibility for determining the suitability of any of CONTRACTOR’s Goods for the use contemplated by OWNER. After delivery of Goods to OWNER pursuant to this Agreement, OWNER assumes all risk and liability arising out of the presence, storage, transport or use of the Goods to the extent not assumed by the CONTRACTOR in connection with its duties to perform Special Services pursuant to the Contract.
ARTICLE 9 – ENGINEER’S STATUS
9.1 ENGINEER will be OWNER’s representative. The duties and responsibilities and the limitations of authority of ENGINEER as OWNER’s representative are set forth in the Procurement Agreement and will not be extended without written consent of OWNER and ENGINEER and written notice to CONTRACTOR.
Clarifications and Interpretations:
9.2 ENGINEER will issue with reasonable promptness such written clarifications or interpretations of the requirements of the Procurement Agreement (in the form of Drawings or otherwise) as ENGINEER may determine necessary, which shall be consistent with or reasonably inferable from the overall intent of the Procurement Agreement. If CONTRACTOR believes that a written clarification or interpretation justifies an increase in the Contract Price or Contract Time, CONTRACTOR may make a claim therefor as provided in Article 11 or Article 12.
Rejecting Defective Goods:
9.3 ENGINEER will have authority to disapprove or reject Goods or Special Services which are defective.
Decisions on Disputes:
9.4 ENGINEER will be the initial interpreter of the requirements of the Procurement Agreement and judge of the acceptability of the Goods and Special Services. Claims, disputes and other matters relating to such acceptability or the interpretation of the requirements of the Procurement Agreement pertaining to CONTRACTOR’s performance and claims under Articles 11 and 12 in respect of Contract Price or Contract Time will be referred initially to ENGINEER in writing with a request for a formal decision in accordance with this paragraph, which ENGINEER will render in writing within a reasonable time. Written notice of each such claim, dispute or other matter shall be delivered by the claimant to ENGINEER and the other party to the Agreement within fifteen days after the occurrence of the event giving rise thereto, and written supporting data will be submitted to ENGINEER and the other party within forty-five days after such occurrence unless ENGINEER allows an additional period of time to ascertain more accurate data. In his capacity as interpreter and judge, ENGINEER will not show partiality to OWNER or CONTRACTOR and will not be liable in connection with any interpretation or decision rendered in good faith in such capacity.
9.5 The rendering of a decision by ENGINEER pursuant to paragraph 9.4 with respect to any such claim, dispute or other matter (except any which have been waived by the making or acceptance of final payment as provided in paragraph 6.8) will be a condition precedent to any exercise by OWNER or CONTRACTOR of such rights or remedies as either may otherwise have under the Procurement Agreement or at law in respect of any such claim, dispute or other matter.
Visits to CONTRACTOR’S Facilities:
9.6 ENGINEER will not make visits to CONTRACTOR’s facilities where the Goods are being produced to observe production, inspection, or testing of the Goods except as otherwise specified in the Procurement Agreement.
Limitations on ENGINEER’S Responsibilities:
9.7 Neither ENGINEER’s authority to act under these Procurement General Conditions or elsewhere in the Procurement Agreement nor any decision made by ENGINEER in good faith either to exercise or not to exercise such authority shall give rise to any duty or responsibility of ENGINEER to CONTRACTOR or any of CONTRACTOR’s agents or employees or any other person furnishing materials or equipment for incorporation in the Goods or furnishing services incidental thereto.
9.8 Whenever in the Procurement Agreement the terms “as ordered”, “as directed”, “as required”, “as allowed”, “as approved” or terms of like effect or import are used, or the adjectives “reasonable”, “suitable”, “acceptable”, “proper”, or “satisfactory” or adjectives of like effect or import are used to describe requirement, direction, review or judgment of ENGINEER, it is intended that such requirement, direction, review or judgment will be solely to evaluate the Goods and Special Services for compliance with the Procurement Agreement (unless there is a specific statement indicating otherwise). The use of any such term or adjective never indicates that ENGINEER shall have authority to supervise or direct any of CONTRACTOR’s operations or activities.
9.9 ENGINEER will not be responsible for CONTRACTOR’s failure to produce and deliver the Goods and furnish Special Services in accordance with the Procurement Agreement, nor will ENGINEER be responsible for any acts or omissions of CONTRACTOR or of any other persons furnishing or delivering any Goods, furnishing Special Services or performing other services in connection therewith.
ARTICLE 10 – CHANGES IN THE GOODS OR SPECIAL SERVICES
10.1 Without invalidating the Agreement, OWNER may, at any time or from time to time, request additions, deletions, or revisions in the Goods or furnishing of Special Services; these changes will be authorized by Change Orders. Upon receipt of a Change Order, and after agreement to and acceptance by the CONTRACTOR of such change order, CONTRACTOR shall proceed on the basis of the change involved. If any Change Order causes an increase or decrease in the Contract Price or an extension or shortening of the Contract Time, an equitable adjustment will be made as provided in Article 11 or Article 12 on the basis of a claim made by either party.
10.2 ENGINEER may authorize minor changes in the Goods or Special Services not involving an adjustment in the Contract Price or the Contract Time, which are consistent with the overall intent of the Contract Documents. These minor changes may be accomplished by an ENGINEER’S Order and will be binding on OWNER, and also on CONTRACTOR if and when agreed and accepted by CONTRACTOR in writing. If CONTRACTOR believes that an ENGINEER’s Order justifies an increase in the Contract Price or Contract Time, CONTRACTOR may make a claim therefor as provided in Article 11 or Article 12.
10.3 Changes made in the Goods or Special Services without authorization of a Change Order will not entitle CONTRACTOR to an increase in the Contract Price or an extension of the Contract Time, except as provided in paragraph 10.2
10.4 OWNER shall execute appropriate Change Orders prepared by ENGINEER covering changes which are required by OWNER, or because of any other claim of CONTRACTOR for a change in the Contract Time or the Contract Price which is recommended by ENGINEER.
10.5 If notice to the surety of any change in the Procurement Agreement is required by the provisions of any Bond, the giving of such notice will be CONTRACTOR’s responsibility, and the amount of each applicable Bond will be adjusted accordingly.
ARTICLE 11 – CHANGE OF CONTRACT PRICE
11.1 The Contract Price constitutes the total compensation (subject to authorized adjustments) payable to CONTRACTOR for furnishing the Goods, Special Services and performing other services in connection therewith. All duties, responsibilities and obligations assigned to or undertaken by CONTRACTOR shall be at his expense without change in the Contract Price.
11.2 The Contract Price may only be changed by a Change Order or written amendment. Any claim for an increase in the Contract Price shall be based on written notice delivered to OWNER and ENGINEER within fifteen days of occurrence of the event giving rise to the claim. Notice of the amount of the claim with supporting data shall be delivered within forty-five days after such occurrence unless ENGINEER allows an additional period of time to ascertain accurate cost data. All claims for adjustment in the Contract Price shall be determined by ENGINEER if OWNER and CONTRACTOR cannot otherwise agree on the amount involved. Any change in the Contract Price resulting from any such claim shall be incorporated in a Change Order.
ARTICLE 12 – CHANGE OF CONTRACT TIME
12.1 The Contract Time may only be changed by a Change Order. Any claim for an extension in the Contract Time shall be based on written notice delivered to OWNER and ENGINEER within fifteen days of the occurrence of the event giving rise to the claim. Notice of the extent of the claim with supporting data shall be delivered within forty-five days after such occurrence unless ENGINEER allows an additional period of time to ascertain more accurate data. All claims for adjustment in the Contract Time shall be determined by ENGINEER if OWNER and CONTRACTOR cannot otherwise agree. Any change in the Contract Time resulting from any such claim shall be incorporated in a Change Order.
12.2 The Contract Time will be extended in an amount equal to time lost due to delays beyond the control of CONTRACTOR if a claim is made therefore as provided in paragraph 12.1. Such delays shall include, but not be limited to, acts of neglect by OWNER, or to fires, flood, labor disputes, epidemics, abnormal weather conditions, governmental procedures, or acts of God.
12.3 All time limits stated in the Procurement Agreement are of the essence of the Procurement Agreement. The provisions of this Article 12 shall not exclude recovery for damages (including compensation for additional professional services) for delay by either party.
ARTICLE 13 – WARRANTY AND GUARANTEE; TESTS AND INSPECTIONS; CORRECTION,
REMOVAL OR ACCEPTANCE
CONTRACTOR’s Continuing Obligation: Warranties, Guarantees:
13.1 CONTRACTOR warrants and guarantees to OWNER and ENGINEER that all Goods, Special Services and other services will be in accordance with the Procurement Agreement. CONTRACTOR SPECIFICALLY DISCLAIMS ANY OTHER EXPRESS OR IMPLIED STANDARDS, GUARANTEES, OR WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR USAGE. CONTRACTOR MAKES NO WARRANTIES OF ANY KIND FOR ANY TECHNICAL ADVICE PROVIDED BY CONTRACTOR TO OWNER AND ASSUMES NO OBLIGATION OR LIABILITY FOR ANY SUCH TECHNICAL ADVICE WITH REFERENCE TO THE USE OF PRODUCTS OR RESULTS WHICH MAY BE OBTAINED THEREFROM, AND ALL SUCH ADVICE IF GIVEN AND ACCEPTED IS AT OWNER’S SOLE RISK.
13.2 Neither recommendation of any progress or final payment by ENGINEER, nor any payment by OWNER to CONTRACTOR under the Procurement Agreement, nor any use of the Goods by OWNER, nor any act of acceptance by OWNER, nor any failure to do so, nor the issuance of a notice of acceptability by ENGINEER pursuant to paragraph 6.5, nor any correction of defective Goods or Special Services by OWNER will constitute an acceptance of Goods, Special Services or other services not in accordance with the Procurement Agreement or a release of CONTRACTOR’s obligation to furnish the Goods, Special Services and other services in accordance with the Procurement Agreement.
Tests and Inspections:
13.3 CONTRACTOR shall give ENGINEER timely notice of readiness of the Goods for all those inspections, tests or approvals which the Procurement Agreement specify are to be observed by ENGINEER or another party prior to OWNER’s acceptance of delivery. OWNER will give CONTRACTOR timely notice of all tests, inspections and approvals of the Goods called for by the Procurement Agreement which are to be conducted at the site after such acceptance and prior to final payment.
Remedying Defective Special Services:
13.4 If, at any time ENGINEER notifies CONTRACTOR in writing that any of the Special Services are defective, CONTRACTOR shall promptly provide acceptable services. If CONTRACTOR fails to do so, despite having the notice and opportunity to cure the defective Special Services, OWNER may obtain the Special Services elsewhere at CONTRACTOR’s reasonable cost.
ARTICLE 14 – SUSPENSION, CANCELLATION AND TERMINATION
14.1 Default. The OWNER may declare the CONTRACTOR to be in default of the Procurement Agreement as a result of any one or more of the following events:
14.1.a CONTRACTOR fails to perform the Procurement Agreement in accordance herewith, including but not limited to,
14.1.a.i failure to supply sufficient skilled workers or suitable materials or equipment;
14.1.a.ii failure to adhere to the applicable Schedule or Delivery Times;
14.1.a.iii failure to make payment to subcontractors, suppliers, and/or workmen;
14.1.a.iv failure to adequately document its Work;
14.1.a.v failure to adhere to the Procurement Agreement;
14.1.a.vi failure to maintain its required insurance, or failure to supply reasonable proof of insurance coverage to the OWNER, or failure to prevent a lapse in insurance coverage;
14.1.a.vii failure to take reasonable precautions to keep the work site safe for persons working in and around the site and for the general public; and
14.1.a.viii failure to defend, hold harmless, and indemnify the OWNER as provided for in the Procurement Agreement.
14.1.b CONTRACTOR fails to abide by applicable laws and regulations including but not limited to laws relating to public health and safety, permitting, environmental regulations, and labor regulations;
14.1.c. CONTRACTOR becomes insolvent, as evidenced by either:
14.c.1.i The filing of a legal action including bankruptcy protection under any chapter of the federal bankruptcy code, an action for the benefit of creditors, receivership, liquidation, insolvency, reorganization, or similar proceeding instituted by or against the CONTRACTOR, which proceeding has not been dismissed within thirty (30) days;
14.1.c.ii Any action or answer by the CONTRACTOR approving of, consenting to, or acquiescing in, any such proceeding as mentioned in the sub-paragraph above, or the failure of the CONTRACTOR to defend against the relief sought in any such proceeding as mentioned in the sub-paragraph above; or
14.1.c.iii Any reasonable evidence that the CONTRACTOR has apparently ceased to pay its debts as they mature;
14.1.d The CONTRACTOR’s services under the Procurement Agreement are effectively terminated, or the OWNER is effectively prohibited from using the CONTRACTOR’s services, as a result of any action, ordinance, decision, requirement, order, decree, or judgment of any governmental entity, public authority, or court.
14.1.e CONTRACTOR fails to provide any of the warranties associated with the Goods or causes any warranty for the Goods to be invalidated;
14.1.f CONTRACTOR disregards the authority of the ENGINEER or of the OWNER; or
14.1.g CONTRACTOR violates the provisions of the Procurement Agreement in any substantial way.
14.2 Termination for Cause. In the event that the OWNER declares the CONTRACTOR in default of the Procurement Agreement, the OWNER may, in its sole discretion, either: (i) provide CONTRACTOR with a period within which to either cure its default (with or without required or suggested instructions on how to remedy the default) or have its services under the Procurement Agreement terminated “for cause”; or (ii) notify the CONTRACTOR that its services on the Procurement Agreement are terminated effective either immediately or on a specified date, without providing the CONTRACTOR with an opportunity or right to cure the default. If terminated for cause, the OWNER may procure the Goods and Special Services due under the Procurement Agreement elsewhere.
14.3 Other Consequences of Termination for Cause. Where the CONTRACTOR is terminated for cause, the termination will not affect any rights or remedies of the OWNER against the CONTRACTOR then existing or which may thereafter accrue.
14.4 Termination for Convenience. Upon seven days’ written notice to the CONTRACTOR, the OWNER may, without cause and without prejudice to any other right or remedy of the OWNER, elect to terminate the Procurement Agreement. In such case, the CONTRACTOR shall be entitled to be paid (without duplication of any items) by the OWNER for the following:
14.4.a for completed and acceptable services executed in accordance with the Procurement Agreement prior to the effective date of termination, in accordance with the Procurement Agreement.
14.4.b for goods delivered in accordance with the Procurement Agreement prior to the effective date of termination;
14.4.c for expenses sustained prior to the effective date of termination in performing services and furnishing goods, materials or equipment as required by the Procurement Agreement, plus fair and reasonable sums for overhead and profit on such expenses;
14.4.d for all reasonable claims, costs, losses and damages incurred in settlement of terminated contracts with Subcontractors, Suppliers and others; and
14.4.e for reasonable expenses directly attributable to termination.
14.5 Consequences of Termination for Convenience. The above remedies of the CONTRACTOR upon termination for convenience shall be the CONTRACTOR’s exclusive remedies in connection with same. The CONTRACTOR waives any claims against the OWNER arising out of or in connection with the termination for convenience including but not limited to loss of anticipated profits, loss of revenue, damage to goodwill, damage to other business assets, economic loss arising out of or resulting from such termination, storage fees, rental fees, restocking fees, consequential damages, incidental damages, special or punitive damages, attorneys’ fees, or litigation expenses, or claims of alleged bad faith use of “termination”.
14.6 Automatic Conversion to “Termination for Convenience”. If the OWNER terminates the CONTRACTOR for cause in accordance with this Article, but the OWNER is later found by a court, arbitrator, or other tribunal to have terminated the CONTRACTOR without the requisite “cause”, the termination shall be automatically converted to, and deemed to have been, one “for convenience” and the CONTRACTOR’s remedies shall be strictly limited to those provided for herein in the event of “termination for convenience”, subject to off-sets due to claims upon which the OWNER has prevailed against the CONTRACTOR. The CONTRACTOR shall not be entitled to any other damages that could have been recovered but for the application of this automatic conversion.
14.7 Suspension. The OWNER may, without breaching the Procurement Agreement, suspend the services, goods, and other obligations due under the Procurement Agreement for a period of time as may be needed to allow the OWNER to: (i) protect the public from danger or risk of injury; or (ii) remedy unanticipated conditions or circumstances that hinder, limit, change, or frustrate the underlying purpose(s) of the Procurement Agreement, or adversely affect the OWNER’s interests in a material way, and for which the CONTRACTOR is not responsible to remedy or repair. The CONTRACTOR’s remedies for suspension of the Project by the OWNER shall be as reasonably needed to compensate the CONTRACTOR, subject to the CONTRACTOR’s duty to mitigate damages, and subject to the following limitation: The CONTRACTOR waives any claims against the OWNER arising out of or in connection with the suspension of the Procurement Agreement including but not limited to loss of anticipated profits, loss of revenue, damage to goodwill, damage to other business assets, cost of capital, cost of financing, consequential damages, incidental damages, special or punitive damages, attorneys’ fees, or litigation expenses, and/or damages relating to suspension or termination of contracts or purchase orders entered into between the CONTRACTOR and its subcontractors, suppliers, or other vendors.
ARTICLE 16 – MISCELLANEOUS
16.1 Whenever any provision of the Procurement Agreement requires the giving of written notice it shall be deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice.
Computation of Time:
16.2 When any period of time is referred to in the Procurement Agreement by days, it will be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day will be omitted from the computation.
16.3 The duties and obligations imposed by these Procurement General Conditions and the rights and remedies available hereunder to the parties hereto will be in addition to, and shall not be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by law or contract, by warranty or guarantee or by other provisions of the Procurement Agreement, and the provisions of this paragraph shall be as effective as if repeated specifically in the Procurement Agreement in connection with each particular duty, obligation, right and remedy to which they apply. All representatives, warranties and guarantees made in the Procurement Agreement will survive final payment and termination or completion of this Agreement.
Remedies; Limitation of Liability:
16.4 NEITHER CONTRACTOR NOR CONTRACTOR’S SUPPLIERS OF GOODS (“CONTRACTOR’S SUPPLIERS”) SHALL BE LIABLE TO THE OWNER FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES.
16.5 CONTRACTOR’S SOLE LIABILITY AND OWNER’S SOLE REMEDY FOR ANY DAMAGES ARISING IN CONNECTION WITH ANY ALLEGED FAILURE BY CONTRACTOR TO DELIVER GOODS AND/OR SPECIAL SERVICES AS SPECIFIED UNDER THIS PROCUREMENT AGREEMENT OR FOR PROVIDING DEFECTIVE GOODS SHALL BE LIMITED TO, AT CONTRACTOR’S OPTION, THE REFUND OF THE PURCHASE PRICE OR REPLACEMENT OF THE PRODUCT OR SERVICE IN QUESTION IN ACCORDANCE WITH SECTION 13.4 HEREOF. ALL CLAIMS BY OWNER SHALL BE MADE IN WRITING WITHIN NINETY-FIVE (95) DAYS AFTER THE EVENT GIVING RISE TO SUCH CLAIM AND FAILURE OF BUYER TO GIVE SUCH NOTICE SHALL CONSTITUTE A COMPLETE WAIVER BY OWNER OF ANY SUCH CLAIMS AND DEFENSE FOR CONTRACTOR AGAINST ANY SUCH CLAIMS. AS USED IN THIS SECTION, THE TERM “OWNER” AND “CONTRACTOR” SHALL INCLUDE NOT ONLY THE PARTY TO THIS AGREEMENT BUT ALSO ALL OF ITS AFFILIATES.
16.6 THE LIMITATIONS CONTAINED IN SECTIONS 16.4 AND 16.5 SHALL APPLY REGARDLESS OF WHETHER THE CLAIM FOR DAMAGES IS BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT OR OTHERWISE, AND SHALL APPLY EVEN WHERE SUCH DAMAGES ARE CAUSED IN WHOLE OR IN PART, BY THE NEGLIGENCE, GROSS NEGLIGENCE OR ACTS AND OMISSIONS OF THE PARTY CLAIMING DAMAGES OR THE PARTY FROM WHOM DAMAGES ARE SOUGHT.
16.7 Exceptions Cap on Liability. Provisions 16.4, 16.5, and 16.6 above shall be collectively referred to hereinafter as “the Cap on Liability”. The Cap on Liability shall not apply to and shall not limit in any way the obligations of CONTRACTOR and CONTRACTOR’s Insurer(s) under provision 16.9 entitled Indemnification. Nothing contained in the Cap on Liability shall be construed as to limit the OWNER’s right to coverage, defense, and/or payments from CONTRACTOR’s insurer(s) under the policies of insurance that CONTRACTOR is required to obtain and maintain as a condition of the Procurement Agreement. The Cap on Liability shall be construed, to the fullest extent possible, as not extending the same limitation of liability or remedies to CONTRACTOR’s insurer(s) as to the CONTRACTOR. Furthermore, the Cap on Liability shall be null and void if any of provisions relating to the Cap on Liability breach or invalidate the policies of insurance that CONTRACTOR is required to obtain and/or maintain in accordance herewith, such that the OWNER is denied coverage as an additional insured under CONTRACTOR’s policies. If CONTRACTOR fails to procure and/or maintain the insurance required in this Procurement Agreement, the Cap on Liability shall be null and void.
16.8 SECTIONS 16.4, 16.5, 16.6, AND 16.7 SHALL SURVIVE EXPIRATION, TERMINATION, OR CANCELLATION OF THE PROCUREMENT AGREEMENT.
16.9 The CONTRACTOR shall indemnify, defend, and hold harmless the OWNER, its Commissioners, Officers, Agents, Attorney’s, and employees (collectively “indemnitees”) from and against any and all third-party claims or losses (including reasonable attorney’s fees) arising out of the CONTRACTOR’s performance or non-performance of the Procurement Agreement. This provision shall not apply if the claims or losses arise from the OWNER’s sole negligence. If the third-party claimant is an employee or individual who is otherwise affiliated with the OWNER, that employee or individual shall be excluded from the meaning of “indemnitees” for purposes of that claim. This Indemnification provision shall survive expiration, termination, or cancellation of the Procurement Agreement.
16.10 Except for OWNER’s obligation to make payment under the Agreement for completed deliveries of Goods and performance of Special Services, either Party, on reasonably advanced notice to the other Party, may suspend performance of the Procurement Agreement in the event of Force Majeure. Force Majeure occurs when a Party is prevented from performing the Procurement Agreement by circumstances that are actually beyond its reasonable control
and were wholly unexpected. Examples of the types of events that could lead to a Force Majeure include, but are not limited to: Acts of God, war, terrorism, fire, explosion, flood, strike, public health emergency, communicable disease outbreak, epidemic, pandemic, quarantine measures, lockout and other similar measures enacted quarantine, and lockout. Before a Party may seek to suspend performance due to Force Majeure, that Party must show the other Party that is has made reasonably commercial attempts to overcome any impediments to performance. Furthermore, in the event of a Force Majeure, deliveries of Goods hereunder may not be suspended for more than the duration reasonably necessary to remove the cause of, or overcome the impediment to, non-performance.
END OF PROCUREMENT GENERAL CONDITIONS
Contractor Registration Advisement
For Public Works Projects
A new law, known as the “Public Works Contractor Registration Act” (P.L. 1999, c.238), will become effective April 11, 2000. Under the Act, no contractor/subcontractor will be permitted to bid on or engage in any contract for public work, as defined in section 2 of P.L. 1963, c.150 (C.34:11-56.26), unless that contractor/subcontractor is registered with the New Jersey Department of Labor. The Act provides that upon registration with the Department, a public works contractor/subcontractor will be issued a certificate by the Department indicating compliance with the Act’s requirements. The registration fee has been set at $300 per year. Upon the effective date of the Act, public bodies will be expected to request production of such a certificate from those bidding on or engaging in public works projects.
It is important to note that the term “contractor” is defined in the Act as, “a person, partnership, association, joint stock company, trust, corporation or other legal business entity or successor thereof who enters into a contract which is subject to the provisions of the “New Jersey Prevailing Wage Act”, P.L. 1963, c.150 (C.34:11-56.25, et seq.) for the construction, reconstruction, demolition, alteration, repair or maintenance of a public building regularly open to and used by the general public or a public institution, and includes any subcontractor or lower tier subcontractor as defined herein, except that, for the purposes of the act, no pumping station, treatment plant or other facility associated with utility and environmental construction, reconstruction, demolition, alteration, repair or maintenance shall be regarded as a public building regularly open to and used by the general public or a public institution.”
Registration forms, copies of the Act, and other relevant information will be available January 2000. To be placed on our mailing list please contact:
Contractor Registration Unit
New Jersey Department of Labor
Division of Wage & Hour Compliance
P.O. Box 389
Trenton, New Jersey 08625-0389
Telephone: (609) 292-9464
Fax: (609) 633-8591