Exhibit_B_RFP-0000186_-_N3B_General_Conditions_for_Fixed_Price_Subcontracts.pdf

RFP-0000186

Exhibit B – General Conditions For Fixed Price Subcontracts

N3B FORM xxx REV 1 (03/02/18) RFP-0000131 Page 1 of 18

GENERAL CONDITIONS FOR FIXED PRICE

SUBCONTRACTS

UNDER

U. S. DEPARTMENT OF ENERGY PRIME

CONTRACT NO. 89303318CEM000007

LOS ALAMOS LEGACY CLEANUP CONTRACT

LOS ALAMOS, NM

Change Bar indicates new article, a change in application, or that text of Article has changed

Article Page No.

1 DEFINITIONS

2 SUBCONTRACT ADMINISTRATION

3 SUBCONTRACT

4 SAFETY

5 LOWER TIER SUBCONTRACTORS

6 SCHEDULE

7 PROJECT INVESTIGATION

8 OTHER WORK

9 CHANGES

10 INVOICING AND PAYMENT

11 RESERVED

12 PAYMENTS WITHHELD

13 INSPECTION/ACCEPTANCE

14 SUBCONTRACTOR INSURANCE

15 RISK OF LOSS; DEDUCTIBLES; TITLE

16 CONTRACTOR'S RIGHT TO DO WORK

17 TERMINATION FOR CAUSE

18 TERMINATION FOR CONVENIENCE OF CONTRACTOR

19 SUSPENSION

20 EMERGENCIES

21 LABOR AND SUPERVISION

22 MATERIALS, WORKMANSHIP, AND WARRANTIES

23 LIENS

24 INTELLECTUAL PROPERTY PROTECTION

25 CONFIDENTIALITY

26 APPLICABLE LAW

27 FACILITY SITE

28 PERMITS AND LICENSES

29 TAXES

30 GENERAL INDEMNITY

31 ASSIGNMENT AND SUCCESSORS

32 NO WAIVER OF BREACH

33 PUBLICITY

34 SEVERABILITY AND SURVIVAL

35 RESERVED

36 HAZARDOUS MATERIALS

37 CONTRACTOR INFORMATION

38 CONTRACTOR FURNISHED MATERIALS

39 LABOR AGREEMENTS/POLICIES

40 FORCE MAJEURE

41 DISPUTES

42 NO THIRD PARTY OR OTHER CLAIMS

43 DAMAGES

44 GOVERNING LAW AND VENUE

45 ARTICLE HEADINGS

46 COMPLETE AGREEMENT

47 BACKCHARGE; OFFSET

48 PRODUCT INFORMATION

49 INDEPENDENT CONTRACTOR

50 SUBCONTRACTOR'S DRAWINGS, SPECIFICATIONS,

AND CALCULATIONS

51 EMPLOYEE CONCERNS PROGRAM

52 ONSITE EQUIPMENT USE REQUIREMENTS

53 ABILITY TO WORK

54 ENVIRONMENT, SAFETY AND HEALTH

55 SUSPECT/COUNTERFEIT PARTS IDENTIFICATION

56 PRICE-ANDERSON AMENDMENTS ACT

57 SECURITY AND SITE ACCESS

59 FOREIGN NATIONALS

60 FIRST AID FACILITIES

FAR AND DEAR CLAUSES (INCORPORATED BY

REFERENCE)

A.90 AFFIRMATIVE PROCUREMENT OF BIOBASED

PRODUCTS UNDER SERVICE AND CONSTRUCTION

CONTRACTS (SEP 2013)

A.91 POLLUTION PREVENTION AND RIGHT-TO-KNOW

INFORMATION (MAY 2011)

A.92 WASTE REDUCTION PROGRAM (MAY 2011)

A.93 COMPLIANCE WITH ENVIRONMENTAL

MANAGEMENT SYSTEMS (MAY 2011)

A.94 SUSTAINABLE ACQUISITION PROGRAM (OCT 2010)

A.95 EXECUTIVE ORDER 13423, STRENGTHENING FEDERAL

ENVIRONMENTAL, ENERGY, AND TRANSPORTATION

MANAGEMENT (OCT 2010)

DEAR 970-5223-6

1 DEFINITIONS

The following definitions apply internally to these General Conditions and in the other Subcontract Documents, unless the context clearly requires otherwise:

1.1 “Applicable Law” shall have the meaning set forth in Article 26.1.

1.2 “Certificate of Completion” means the certificate issued by Contractor to Subcontractor after Subcontractor has completed all Work other than potential warranty obligations.

1.3 “Contractor” means Newport News Nuclear BWXT – Los Alamos, LLC (N3B).

1.4 “Damages” shall have the meaning set forth in Article 26.2.

1.5 “Day(s)” or “day(s)” means calendar day(s) unless otherwise specified.

1.6 “Facility” means the facility located or to be located by

Owner on the Facility Site.

1.7 ”Facility Site” means all those parcels of land, on which the

Project is or is to be located and for purposes of this Subcontract only those parcels of land which are occupied or used by Subcontractor in the performance of the Work.

1.8 “Force Majeure Event” shall have the meaning set forth in Article 40.1.

1.9 “General Conditions” means the terms and conditions set forth in this document.

1.10 “Hazardous Material” means any hazardous material or waste, toxic substance, pollution or contamination.

1.11 “Indemnified Parties” shall have the meaning set forth in Article 26.2.

1.12 “Lower Tier Subcontractor” means each lower tier vendor, supplier, materialman, consultant, contractor, subcontractor or other person or entity performing a portion of the Work for Subcontractor hereunder and/or providing equipment or

RFP-0000131 Page 2 of 18 services directly or indirectly in connection with the Work or Subcontract.

1.13 “MSDS” shall have the meaning set forth in Article 36.5.

1.14 “Owner” means the ultimate Owner of the project identified as such in the Subcontract Order and any of its contractors, affiliates or venders of any tier.

1.15 “Party” or “Parties” means Subcontractor and/or Contractor.

1.16 “Prime Contract” means the contract between Owner (DOE) and Contractor for the Project.

1.17 “Project” means Owner’s project as described in the

Subcontract.

1.18 “Project Schedule” means Contractor’s overall schedule for its work on the Project under the Prime Contract.

1.19 “Special Conditions” means the conditions, if any, identified as such in the Subcontract.

1.20 “Subcontract” means the document entitled Subcontract

Order issued by Contractor to Subcontractor in connection with the Project, all Subcontract Documents set forth therein, and all written amendments, change orders, modifications and supplements thereto, if any.

1.21 “Subcontract Documents” means the documents identified as subcontract documents in the Subcontract Order.

1.22 “Subcontract Order” shall mean the document entitled Subcontract Order and executed by Contractor and Subcontractor.

1.23 ”Subcontract Price” means the price to be paid by Contractor to Subcontractor for the Work as provided for in the Subcontract.

1.24 “Subcontractor” means the individual or entity identified as such in the Subcontract.

1.25 “Work” shall mean all of the labor, services, equipment, materials, supplies, documentation and other items which are to be provided by Subcontractor under the Subcontract.

1.26 “Work Schedule” shall have the meaning set forth in Article 6.1.

2 SUBCONTRACT ADMINISTRATION

2.1 Contractor may establish and implement a program to

monitor the performance and quality of the Work.

Subcontractor shall provide Contractor’s inspectors and supervisory personnel access to all Work wherever it is in preparation or progress. Notwithstanding any monitoring program implemented by Contractor with respect to the Work, Contractor shall have no obligation to supervise or inspect Subcontractor’s Work, and any inspection by Contractor with respect to the Work shall not relieve Subcontractor of its obligations under this Subcontract.

2.2 RESERVED

2.3 Subcontractor shall be solely responsible for the

performance of the Work and neither Owner nor Contractor shall be responsible for Subcontractor’s safety precautions and programs incident thereto, failure to comply with Applicable Law, or failure to furnish or perform the Work as required under the Subcontract.

2.4 Neither Owner nor Contractor shall be responsible for the acts or omissions of Subcontractor or any Lower Tier Subcontractor(s).

2.5 During the performance of the Work, Contractor may

disapprove or reject Work where, in its opinion, such Work does not conform to the requirements of the Subcontract.

Refer to Article 22 regarding re-performance and corrections.

2.6 Contractor may schedule and conduct job meetings to be

attended by persons designated by Contractor, including Subcontractor and its Lower Tier Subcontractor(s) for the Project, to discuss matters related to the Work and Project, including but not limited to procedures, progress, problems, scheduling, safety and coordination.

2.7 Contractor and/or the Owner may implement from time to

time safety, health and drug free programs (and amendments thereto) of general applicability to the Facility Site. Contractor’s personnel, Subcontractor’s personnel, and all Lower Tier Subcontractor personnel shall all fully comply with any such programs. Contractor will keep copies of any such programs at the Facility Site and they will be available during normal business hours for Subcontractor to inspect and/or copy.

2.8 Contractor may establish procedures for processing shop

drawings, samples and other submittals by Subcontractor.

2.9 Contractor shall review and process all requests for change orders by Subcontractor as set forth in Article 9.

2.10 Contractor shall determine when Subcontractor’s Work is

complete as set forth in Article 13.

3 SUBCONTRACT

3.1 The Subcontract Documents are intended to be read as a

whole, and any Work required by one part and not mentioned in another shall be executed to the same extent and purpose as though required by all. The misplacement, addition, or omission of a word or character shall not change the intent of any part from that set forth by the Subcontract as a whole. Any inconsistencies in this Subcontract shall be resolved by giving precedence in the following order:

(1) amendments to the “Subcontract Order”;

(2) the document entitled “Subcontract Order” issued by Contractor to Subcontractor in connection with the Project;

(3) General Conditions; (4) scope of work, drawings, specifications and other Subcontract Documents.

3.2 In the various parts of the Subcontract where reference is made to applicable codes and standards, the Work shall, except as otherwise specified, conform to the latest issue of the referenced code or standard available at the time the Work is performed. Upon any point of conflict between codes and standards applicable to the Work, Contractor shall be notified, but the code or standard imposing the more or most stringent requirement as the case may be shall govern, unless otherwise stipulated by Contractor in writing.

3.3 Where specific governing standards are not specified in

connection with the Work, the highest applicable industry codes and standards shall govern.

3.4 Subcontractor acknowledges and agrees that it shall provide all labor, services, equipment, materials, supplies, documentation and other such items necessary or appropriate to perform and complete the Work in conformity with and as reasonably inferred from the Subcontract Documents, notwithstanding the fact that each such necessary or appropriate item may not be expressly specified therein.

4 SAFETY

4.1 Subcontractor acknowledges that safety is of prime

importance to Contractor and Owner, and Subcontractor shall cooperate with Contractor and Owner in efforts to prevent injuries to personnel and to comply with all applicable safety rules and regulations.

5 LOWER TIER SUBCONTRACTORS

5.1 Subcontractor shall notify Contractor in writing of the names of Lower Tier Subcontractors proposed for any of the Work and shall not subcontract any part of the Work without the prior written authorization of Contractor. Subcontractor shall not subcontract the Work as a whole. Subcontractor shall

RFP-0000131 Page 3 of 18 bind all Lower Tier Subcontractors to the provisions of the Subcontract applicable to the subcontracted Work.

5.2 Neither the Subcontract nor any subcontract with a Lower

Tier Subcontractor shall create any contractual relationship between any Lower Tier Subcontractor and either Owner or Contractor, nor any payment or other obligation on the part of either Owner or Contractor to any Lower Tier Subcontractor.

5.3 Notwithstanding the existence of any subcontract with a

Lower Tier Subcontractor, Subcontractor shall be fully responsible to Contractor for the performance of the Work as if no such subcontract exists.

6 SCHEDULE

6.1 Subcontractor will submit updates to Contractor on a weekly basis as required by Contractor.

7 PROJECT INVESTIGATION

7.1 Subcontractor represents that it has, or has had full

opportunity to, examine the Facility Site and Subcontract Documents; that it has satisfied itself as to the requirements of the Work and all conditions which may affect the Work, including but not limited to labor conditions and availability, the condition of the Facility Site and access thereto to perform the Work and local weather conditions; that the Subcontract Price and Work Schedule have been determined with due regard for all such requirements and conditions which do or may affect the Work; and that its entry into the Subcontract has not been induced either wholly or in part by any promises, representations or statements by or on behalf of the Contractor, its agents or representatives, or the Owner, its agents or representatives, other than those set forth in the Subcontract. Subcontractor acknowledges and accepts the risk of mistake or error with respect to all matters within the scope of its Project investigation, and agrees that it shall not be entitled to, and shall make no claim for, any additional compensation or damages of any kind or character or extension of time should any requirements or conditions applicable to the Work be different from or in addition to those identified by Subcontractor through such investigation.

8 OTHER WORK

8.1 Subcontractor shall be required in the performance of its

Work to coordinate its activities at the Facility Site with those of Contractor’s or Owner’s other contractors. Subcontractor agrees that the Owner or Contractor shall have the right to perform or have performed in or about the Facility Site during the time when Subcontractor is performing its Work such other work as Owner or Contractor may desire and that Subcontractor shall make every reasonable effort to enable both its Work and such other work to be completed without hindrance or interference. In the event Subcontractor’s performance of its Work is delayed or interfered with by the work of Contractor, Owner or their respective other contractors, or the manner in which Contractor coordinates, prioritizes or otherwise requires or permits the Work and such other work to be performed, Subcontractor’s sole and exclusive remedy shall be an extension of time for the performance of the Work. Any claim by Subcontractor for an extension of time arising out of any alleged delay or interference shall be made to Contractor in accordance with Article 9.

9 CHANGES

9.1 Contractor may, by written notice, direct changes within the general scope of this Subcontract in any of the following: (a) technical requirements and descriptions, specifications, statement of work, drawings, or designs; (b) shipment or packing methods; (c) time and place of performance, delivery, inspection, or acceptance; (d) reasonable adjustments in quantities and delivery schedules; and (e) amount of Furnished Property. If a change increases or decreases Subcontractor’s cost or time to perform this Subcontract, the parties shall negotiate an equitable adjustment in price or schedule or both, and Contractor shall modify this Subcontract in writing accordingly.

Subcontractor must assert any claim for adjustment within 30 days of receipt of notice of the change. Contractor may examine Subcontractor’s books and records to verify the amount of the claimed adjustment. Nothing in the foregoing obligates Subcontractor to continue performance or incur costs beyond the point established, if applicable, in any Limitation of Cost or Limitation of Funds articles in this Subcontract.

9.2 Notwithstanding anything to the contrary in this Article 9.0;

no adjustment in the Subcontract Price, Work Schedule or any other provision of the Subcontract shall be made for or as a result of any correction of errors, omissions, deficiencies, or improper or defective Work on the part of Subcontractor or its Lower Tier Subcontractors.

9.3 Any changes to the Work hereunder shall be performed by

Subcontractor consistent with all of the requirements of the Subcontract, unless otherwise directed in writing by Contractor.

10 INVOICING AND PAYMENT

10.1 By not later than the fifth (5th) day of each month, and utilizing Contractor’s invoice for payment form (in the form included in the Subcontract Documents),.

10.2 Any invoice deviating from the requirements of this Article 10 will be returned to Subcontractor for correction and/or submission of acceptable supporting documentation.

10.3 Terms of payment contained in the Subcontract shall take precedence over terms of payment shown on Subcontractor’s invoices or elsewhere.

10.4 Subcontractor shall, and shall cause its Lower Tier

Subcontractors to, submit a release and waiver of liens and claims and certification and proof of payment as to all labor and materials, with the completion of the work scope in the form prescribed by the Contractor (in the form included in the Subcontract Documents).

10.5 No payment shall constitute a waiver of any claims

Contractor may have against Subcontractor.

10.6 All payments are provisional and any overpayment by

Contractor to Subcontractor shall be deemed to be a mistake of fact and promptly repaid to Contractor. Along with the overpayment remittance, Subcontractor shall provide circumstances surrounding the overpayment.

10.7 The date of receipt by Contractor of a proper, complete and fully substantiated invoice from Subcontractor will establish the effective date of the invoice. If not otherwise specified in the Subcontract, payment shall be net forty-five (45) days after the effective date of the invoice. The acceptance of any payment shall constitute a waiver of all claims by Subcontractor.

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10.8 Notwithstanding anything to the contrary in this Subcontract, Contractor shall pay Subcontractor the undisputed portion of any invoice within 45 days of invoice approval.

10.9 In the event of a termination for convenience the

Subcontractor shall be paid a percentage of the subcontract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Subcontractor can demonstrate to the satisfaction of the Contractor using its standard record keeping system, have resulted from the termination. The Subcontractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. In no event shall Subcontractor be entitled lost profit on Work not performed.

This paragraph does not give the Subcontractor any right to audit the Subcontractor’s records. The Subcontractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

11 RESERVED

12 PAYMENTS WITHHELD

12.1 Contractor may withhold the whole or any part of any

payment to Subcontractor to such extent as may be necessary to protect Contractor from loss as a result of:

(a) incomplete, defective or damaged Work not remedied;

(b) Backcharges, per Article 47;

(c) claims filed or reasonable evidence indicating probable filing of claims, including lien claims, involving or arising out of Subcontractor’s Work;

(d) damage to Contractor’s, Owner’s or their respective other contractors work;

(e) failure of the Subcontractor to make payments when due to Lower Tier Subcontractors;

(f) reasonable insecurity regarding Subcontractor’s intention or ability to continue with the proper and timely performance of the Work;

(g) failure of the Subcontractor to perform or comply with any of its obligations under the Subcontract Documents; or

(h) expenses arising from frivolous claims against Contractor.

12.2 Funds withheld in accordance with this Subcontract are not for the benefit of the bonding company or any other third party.

13 INSPECTION/ACCEPTANCE

13.1 The Subcontractor shall only tender for acceptance those items that conform to the requirements of this subcontract. The Contractor reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Work will be deemed finally complete as of the date of Contractor’s notice to Subcontractor to that effect. The procedure set forth in this Article 13 shall in no way limit Contractor's rights or Subcontractor’s obligations under Article 22. No delivery of any product shall be considered made or complete until such product is completely and finally delivered to Contractor’s physical possession and control in its entirety, including but not limited to replacement of any defective parts. The Contractor must exercise its post-acceptance rights --

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item unless the change is due to the defect in the item.

14 SUBCONTRACTOR INSURANCE

14.1 Unless otherwise specified in the Subcontract, Subcontractor agrees that it shall obtain and maintain during the performance of any Work at the Facility Site and until the acceptance thereof, the insurance described in 14.2 and shall be carried with insurance companies with at least a Best’s “A” rating. Subcontractor will furnish to Contractor three (3) copies of the certificate(s) evidencing such insurance prior to commencing performance or physically present on the Facility site under the Subcontract.

14.2 The required insurance coverage is as follows:

(a) Worker's Compensation Insurance and Employer’s

Liability Insurance (including occupational disease) to cover statutory benefits and limits of the Worker’s Compensation laws of any applicable jurisdiction in which the Work is to be performed hereunder, and Employers’ Liability Insurance with limits of five hundred thousand dollars ($500,000) for trauma, each accident; five hundred thousand dollars ($500,000) for disease, each person and five hundred thousand dollars ($500,000) disease, policy limit.

(b) Commercial General Liability Insurance written on the latest ISO occurrence form and including coverage for Contractual Liability and Products and Completed Operations (to remain in force for two (2) years following acceptance of the Work. The insurance required by this clause (b) shall have the following limits of liability:

(1) Third Party Bodily Injury and Property Damage

Liability: $1,000,000 combined single limit per occurrence and $2,000,000 combined single limit general aggregate, with such limits available to the Project.

(c) Business Automobile Liability insurance covering all owned, leased and non-owned vehicles used in connection with the Work, with not less than $1,000,000 combined single limit per occurrence for bodily injury and property damage.

(d) If professional services are involved, Professional Liability Insurance with not less than $1,000,000 per occurrence with a 24 months discovery period after completion of the work.

14.3 The following endorsements shall be included in the above insurance coverages:

(a) Thirty (30) days advance written notice in the event of cancellation, non-renewal or material change of any policy. Language referring to “endeavor to” and “but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives” shall be stricken from the certificate of insurance.

(b) Contractor and Owner named as additional insureds (except on workers’ compensation and professional liability)

c) A waiver of subrogation in favor of Contractor and Owner.

(d) Severability of Interest or Separation of insureds.

(e) Subcontractor’s insurance is primary, and any insurance maintained by Contractor is considered excess and non-contributory.

14.4 Subcontractor shall insert the substance of this Article in lower tier subcontracts under the Subcontract that require work at the facility site and shall require lower-tier subcontractors to provide and maintain the insurance required in this Article or elsewhere in the subcontract.

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15 RISK OF LOSS; DEDUCTIBLES; TITLE

15.1 Notwithstanding any other provision(s) in this Subcontract, at all times prior to the final completion of the Work as evidenced by issuance of the Certificate of Completion, Subcontractor shall bear the risk of loss and full responsibility for the costs of replacement or repair resulting from any damage to, loss of or destruction of the Work (to the extent not covered by insurance proceeds received by or for the benefit of Contractor under Builder’s Risk insurance applicable to the Project), including but not limited to Owner furnished work, construction equipment, and the Facility as a whole.

15.2 In addition to its obligations under Article 15.1, Subcontractor shall be responsible for deductibles for any damage or loss covered by insurance provided by Subcontractor under Article 14, and for the payment of deductibles for any damage or loss covered by any Builder's Risk insurance and covering the Work, provided that with respect to such Builder’s Risk insurance deductible, such damage or loss was (i) caused by the fault, negligence or willful misconduct of Subcontractor or any of its Lower Tier Subcontractors or (ii) caused by the failure of Subcontractor to meet its obligations under the Subcontract.

15.3 Title of the Work, or portions thereof, shall pass to

Contractor upon the occurrence of the earliest of the following events, as applicable: a) when such Work or portion is delivered to the Contractor or Facility Site pursuant to the Subcontract; b) when Subcontractor has been paid any sum to which it may become entitled in respect to such Work or portion; c) when such Work or portion is identifiable to the Subcontract ; or d) when the Certificate of Completion is issued by Contractor. All equipment, materials, supplies and other items to which Contractor has title shall not be removed from the Facility Site without Contractor's prior written consent. Use of storage facilities furnished to Subcontractor at the Facility Site shall not relieve Subcontractor of such risk of loss unless otherwise agreed in writing.

16 CONTRACTOR'S RIGHT TO DO WORK

16.1 If the Subcontractor should neglect to prosecute the Work properly or timely or fail to perform any of its other obligations under the Subcontract, Contractor, after two (2) days written notice to the Subcontractor (or shorter period if necessary in Contractor’s sole discretion), may proceed to make good such deficiencies and deduct all costs, expenses and damages thereby suffered, in whole or in part, from any payment then or thereafter due to the Subcontractor, without prejudice to any other remedy it may have to collect the said damages or any part thereof not so deducted.

17 TERMINATION FOR CAUSE

17.1 The Contractor may terminate this subcontract, or any part thereof, for cause in the event of any default by the Subcontractor, or if the Subcontractor fails to comply with any subcontract terms and conditions, or fails to provide the Contractor, upon request, with adequate assurances of future performance. In the event of termination for cause, the Contractor shall not be liable to the Subcontractor for any amount for supplies or services not accepted, and the Subcontractor shall be liable to the Contractor for any and all rights and remedies provided by law. If it is determined that the Contractor improperly terminated this contract for default, such termination shall be deemed a termination for convenience.

18 TERMINATION FOR CONVENIENCE OF CONTRACTOR

18.1 Contractor may upon written notice to Subcontractor, without cause and without prejudice to any other right or remedy, elect to terminate all or any part of the Work. Such termination shall be effective in the manner specified in said notice. On receipt of such notice Subcontractor shall, unless the notice directs otherwise, immediately discontinue Work and the placing of orders for equipment, materials, supplies and other items in connection with the performance of the terminated Work, and shall make every reasonable effort to procure cancellation of existing orders and subcontracts upon terms satisfactory to Contractor, and shall thereafter do only such Work as may be necessary to preserve and protect Work already in progress and continue to complete the Work not terminated hereunder, and to protect all material, plant or equipment on the Facility Site or in transit thereto.

18.2 18.3 As a condition precedent to receiving any termination payment, Subcontractor shall execute and deliver all such papers and take such steps concerning obligations and commitments of and to Subcontractor in connection with the Work as Contractor may require for the purpose of fully vesting in Contractor the rights and benefits of Subcontractor under such obligations and commitments, including but not limited to valid and final waiver of any and all actual or potential liens and/or claims.

19 SUSPENSION

19.1 Contractor may upon written notice to Subcontractor at any time suspend the performance of all or any portion of Work.

Upon receipt of such notice, Subcontractor shall, unless the notice requires otherwise:

(a) immediately discontinue the suspended Work on the date and to the extent specified in the notice;

(b) place no further orders or contracts for equipment, material, supplies, services or facilities with respect to suspended Work, except to the extent required in the notice;

(c) promptly make every reasonable effort to obtain suspension upon terms satisfactory to Contractor of all orders, contracts, subcontracts and other agreements to the extent they relate to the performance of Work suspended;

(d) continue to protect and maintain Work already in place, including those portions of Work which have been suspended; and

(e) take any other reasonable steps to minimize Subcontractor’s costs associated with such suspension.

19.2 As full compensation for Contractor’s suspension of Work, Contractor will pay to Subcontractor forty five (45) days after receipt of an invoice which meets the requirements of Article 10, the actual, reasonable costs associated with mobilization and demobilization of Subcontractor's plant, forces and equipment, the cost of maintaining and protecting the Work to the date of the invoice, and those amounts Contractor and Subcontractor agree Subcontractor should be paid for equipment, materials, supplies, documentation or other items which Subcontractor procured for the Project but for which Subcontractor has not been paid as of the date of the suspension. Subcontractor shall during the period of the suspension continue to invoice Contractor in accordance

RFP-0000131 Page 6 of 18 with Article 10 for the costs of maintaining and protecting the Work.

19.3 Upon receipt of notice to resume suspended Work, Subcontractor shall immediately resume performance thereof to the extent required in the notice.

19.4 No adjustment shall be made for any suspension to the

extent that performance of the Work would have been concurrently suspended, delayed, or interrupted by Subcontractor’s non-compliance with the requirements of this Subcontract.

20 EMERGENCIES

20.1 In the event of an emergency at the Facility Site threatening loss or injury to life or property which Subcontractor may be able to prevent or mitigate, Subcontractor, without awaiting special instruction or authorization from Contractor, shall act as necessary to attempt to prevent or mitigate such threatened loss or injury.

21 LABOR AND SUPERVISION

21.1 Subcontractor shall engage in the performance of the Work a sufficient number of skilled workers to perform the Work promptly, diligently, and in accordance with the requirements of the Subcontract. Prior to commencement of the Work, Subcontractor shall provide Contractor with copies of its policies regarding the furnishing of labor including copies of all wage agreements, working rules, and regulations, if applicable, affecting the Work.

21.2 Subcontractor shall engage in the performance of the Work a sufficient number of competent supervisory personnel as are necessary to perform the Work in accordance with the requirements of the Subcontract. Subcontractor shall further have a competent superintendent continuously on the Facility Site during work hours and readily available upon call. The superintendent shall be fully acquainted with the Work and shall have the authority to administer the Subcontract on Subcontractor’s behalf and shall not be changed except with the consent of Contractor, which shall not be unreasonably withheld.

21.3 If Contractor notifies Subcontractor in writing that any employee or agent of Subcontractor or one of its Lower Tier Subcontractors is incompetent, disorderly, or otherwise unsatisfactory, such person shall immediately be removed, at Subcontractor's cost, from the Work and shall not thereafter be employed in the performance of the Work.

22 MATERIALS, WORKMANSHIP, AND WARRANTIES

22.1 All of the equipment, material, supplies and other items to be furnished by Subcontractor and incorporated into the Facility or Project shall be new, unused, of first rate quality, suitable for use in the Work and in strict conformity with the Subcontract Documents.

22.2 Unless specified otherwise in the Subcontract, the following shall apply:

(a) Subcontractor shall at all times and in a manner reasonably satisfactory to Contractor, cover and protect from damage, loss, theft or destruction all equipment, materials, supplies and other items which are to be used in the performance of, or incorporated into, the Work at the Facility Site. Subcontractor is solely responsible for all equipment, materials, supplies and other items stored by it at the Facility Site and any shortages thereof will be replaced by Subcontractor at its expense.

(b) Subcontractor shall, at its expense, promptly repair, restore or replace any property of the Owner, Contractor or their respective other contractors which Subcontractor or any of its Lower Tier Subcontractors damages, destroys or loses.

22.3 Subcontractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this subcontract. Furthermore, the Subcontractor warrants that all Work (i) shall, as applicable, be free of defects in design, workmanship and material, (ii) shall be performed in accordance with the highest accepted industry codes and standards applicable to the Work, (iii) shall be performed in a good and workmanlike manner and

(iv) shall strictly conform to the Subcontract Documents.

The warranty period shall be for a period of twelve (12) months after completion and acceptance of the work by Subcontractor, or the Subcontractors standard commercial warranty period, whichever is more advantageous to the Contractor.

22.4 Upon receipt of written notice of a defect or deficiency in the Work, Subcontractor shall at Contractor’s sole option and at no cost to Contractor, promptly repair, replace, or reperform such defective or deficient Work so that it conforms with the requirements of the Subcontract.

22.5 Subcontractor shall, at Contractor’s option, assign to

Contractor or Owner any and all rights under any warranties it may have received or be entitled to from suppliers.

22.6 Contractor may or may not elect to obtain (with or without payment therefor) the services, from Subcontractor, a Lower Tier Subcontractor or elsewhere, of technical advisors for such periods of time, if any, as Contractor in its sole and exclusive discretion deems appropriate. However, the presence, absence, quality of performance, or period of time of service of any such technical advisor(s) shall be irrelevant to and shall not in any manner impact any guarantee or warranty of Subcontractor or of any Lower Tier Subcontractor.

22.7 The Owner or the Subcontractor may require repair or

replacement of nonconforming supplies or re-performance of nonconforming services at no increase in subcontract price.

If repair/replacement or re-performance will not correct the defects or is not possible, the Contractor may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services.

23 LIENS

23.1 Subcontractor shall promptly pay for all labor, services, equipment, materials, supplies, documentation or other items used or employed by it or on its behalf in the performance of the Work and shall keep and maintain all equipment, materials, supplies, and other items and the Facility, Facility Site and Project free from all mechanic's liens and other liens. If any lien or claim of lien is filed upon or against the Facility, Facility Site and/or Project by a Lower Tier Subcontractor, Subcontractor shall promptly furnish to Contractor (or appropriate governmental authority) a bond or other collateral necessary to discharge such lien or claim of lien and shall indemnify, defend and hold harmless the Indemnified Parties against and from any and all Damages arising from or in connection with any such lien, claim of lien and/or claim for payment, as applicable, and subject to Applicable Law.

24 INTELLECTUAL PROPERTY PROTECTION

24.1 Subcontractor shall indemnify, defend and hold harmless the

Indemnified Parties from and against any and all Damages

RFP-0000131 Page 7 of 18 which the Indemnified Parties may suffer or pay by reason of any claims or suits arising out of claims of infringement of any patent rights, copyrights or other intellectual property, proprietary or confidentiality rights relating to the Work performed by Subcontractor or any Lower Tier Subcontractor under or in connection with the Subcontract, subject to Applicable Law. Any such suit or claim shall be defended at Subcontractor’s expense by counsel satisfactory to Contractor. If, in any such suit or claim, a temporary restraining order or preliminary injunction is granted, Subcontractor shall make every reasonable effort, by giving a satisfactory bond or otherwise, to secure the suspension of the injunction or restraining order. If, in any such suit or claim, the Work, or any part, combination or process thereof, is held to constitute an infringement and its use is permanently enjoined, Subcontractor shall promptly make every reasonable effort to secure for Owner or Contractor, at no cost to Owner or Contractor, a license authorizing continued use of the infringing item. If Subcontractor is unable to secure such suspension or such license within a reasonable time, Subcontractor shall, at its own expense and without impairing Owner’s or Contractor’s use of the Work, either replace the affected Work, or part, combination or process thereof, with non-infringing components or parts or modify the same so that same becomes non-infringing.

25 CONFIDENTIALITY

25.1 All drawings, specifications, technical data, and other

information furnished to Subcontractor by Contractor, or Owner, or their respective other contractors are, and shall remain, the property of Owner, Contractor or such other contractors, as the case may be, and may not be copied or otherwise reproduced or used in any way except in connection with the Work, or disclosed to third parties or used in any manner detrimental to the interests of Owner, Contractor or such other contractors.

25.2 The following information shall not be subject to the

confidentiality requirements of Article 25.1:

(a) information in the public domain through no action of

Subcontractor in breach of this Subcontract; or

(b) information independently developed by

Subcontractor; or

(c) information acquired by Subcontractor from a third party not delivered to Subcontractor in breach of confidentiality agreements which said third party may have with Contractor, Owner, Owner’s other contractors, or any other third party.

25.3 If and when requested in writing, Subcontractor shall, and shall cause its Lower Tier Subcontractors to, execute any such confidentiality agreements as are deemed necessary for the protection of Contractor, Owner and/or any of their respective other contractors.

26 APPLICABLE LAW

26.1 Subcontractor, all Lower Tier Subcontractors, and all Work provided hereunder shall comply with all laws, treaties, ordinances, judgments, decrees, injunctions, writs and orders of any court or governmental agency or authority, and rules, regulations, codes, orders, interpretations of any federal, state, county, municipal, regional, environmental or other governmental body, instrumentality, agency, authority, court or other body having jurisdiction over the Project or any activity conducted at or in connection with the Project (“Applicable Law”).

26.2 Subcontractor shall indemnify, defend, and hold harmless Owner, Contractor, and their respective directors, officers, employees, parents and subsidiaries of any tier, representatives, agents, successors and assigns, and any and all representatives, agents, directors, officers, employees of any of the foregoing, (the “Indemnified Parties”), against and from any and all losses, costs, damages, injuries, liabilities, claims, demands, penalties, interest and causes of action, including without limitation administrative and legal costs, reasonable attorney’s fees (collectively, “Damages”), arising from or based on any actual or asserted violation of Applicable Law by Subcontractor or any of its Lower Tier Subcontractors or vendors, subject to Applicable Law.

26.3 Subcontractor shall not under any circumstance apply to or enter into negotiations with any governmental authority or agency for acceptance of variations from or revisions to safety or health, or air, water or noise pollution, laws or regulations relating to the Subcontract or the performance thereof, without Contractor’s prior written approval.

27 FACILITY SITE

27.1 Prior to moving any equipment or personnel to the Facility

Site, Subcontractor shall review and become familiar with Facility Site programs and procedures and Subcontractor and its Lower Tier Subcontractors shall fully and strictly comply with same.

27.2 Any temporary construction buildings and sanitary facilities provided by Subcontractor shall conform to Facility Site and permit requirements.

27.3 Subcontractor shall perform site clean-up regularly

(including on a daily basis if necessary or directed by Contractor) in order to keep that area of the Facility Site on which it performs any Work hereunder clean and free from accumulation of petroleum, waste materials (including, without limitation, any waste Hazardous Materials that were brought to or disturbed or released upon or near the Facility Site by Subcontractor or its Lower Tier Subcontractors or were created or disturbed or released as a result of, or in connection with, the performance by Subcontractor or any of its Lower Tier Subcontractors of the Work), rubbish and other debris resulting from the performance of the Work.

27.4 Subcontractor shall not permit visitors, cameras, or picture or video taking on the Facility Site or Work without the prior, written approval of Contractor.

27.5 Subcontractor shall repair or replace, at its expense, any Work or property which it or any of its Lower Tier Subcontractors damages.

27.6 Subcontractor shall conduct inspections to determine if

those areas of the Facility Site used by Subcontractor and any of its Lower Tier Subcontractors to perform the Work are safe for the performance thereof and Subcontractor accepts the sole, non-delegable responsibility for providing a safe place to work for its employees and the employees of its Lower Tier Subcontractors and for the adequacy of and required use of all safety equipment.

28 PERMITS AND LICENSES

28.1 Unless obtained by Owner or Contractor, Subcontractor

shall obtain and pay for any permits, licenses, or royalties which may be required for the performance of the Work, and shall furnish evidence thereof to Contractor. Furthermore, whenever reports to municipal authorities are required from Owner or Contractor under penalty to report, or to report within a specific time, Subcontractor shall be held liable for any costs or penalties to which Owner or Contractor may be subjected as a result of Subcontractor's failure to give proper evidence of a license or permit within any time limit specified.

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29 TAXES

29.1 Subcontractor agrees to pay and that the Subcontract Price is inclusive of, all taxes, fees and contributions on or measured by the income, gross receipts or assets of Subcontractor or any of its Lower Tier Subcontractors and all taxes, fees and contributions on or measured by employees or other labor costs of Subcontractor or any of its Lower Tier Subcontractors, including without limitation all payroll or employment compensation tax, social security tax or similar taxes for Subcontractor’s or any of its Lower Tier Subcontractor’s employees. Subcontractor further agrees to pay and that the Subcontract Price is inclusive of all sales and use taxes, and all import, export and other customs duties, charges, levies and fees imposed or incurred in connection with the shipping and delivery of any equipment, materials, supplies or other items required for the Work to the Facility Site. In the event that Contractor should pay or be required to pay any of the foregoing items or any portion thereof, Subcontractor shall reimburse Contractor therefore in full within five (5) days of receipt of written demand from Contractor for any such reimbursement.

30 GENERAL INDEMNITY

30.1 Subcontractor shall indemnify, defend and hold harmless the

Indemnified Parties against and from any and all Damages (including without limitation any damage to or destruction of property of, or death of or bodily injury to, persons (regardless of whether they are employees of an Indemnified Party, Subcontractor or any Lower Tier Subcontractor, or unaffiliated with the Project, or otherwise)) caused or contributed to by (i) any fault or act or omission of Subcontractor or any of its Lower Tier Subcontractors, or of any of their respective employees, agents, or representatives, under, in connection with or otherwise relating to this Subcontract or the Project or (ii) by any failure of Subcontractor to comply with the terms of this Subcontract; subject to Applicable Law.

30.2 In any and all claims against one or more of the Indemnified Parties by any employee of Subcontractor or of any of its Lower Tier Subcontractors, the indemnification, defense and hold harmless obligation under this Article shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Subcontractor or of any of its Lower Tier Subcontractors, under Workers’ Compensation acts, disability benefit acts or other employee benefit acts.

31 ASSIGNMENT AND SUCCESSORS

31.1 Subcontractor agrees that it shall have no right, power or authority to assign or delegate any of its rights or obligations under the Subcontract, either voluntarily or involuntarily, or by operation of law, without prior written consent of Contractor and that any such unauthorized assignment or delegation shall be null and void and of no effect. The Subcontract shall be binding upon and inure to the benefit of the Parties’ respective heirs, successors, executors, administrators and authorized assigns.

32 NO WAIVER OF BREACH

32.1 Any failure by Contractor at any time, or from time to time, to enforce or require the strict compliance with and performance by Subcontractor of any of the terms or conditions of the Subcontract shall not constitute a waiver by Contractor or a breach of any such terms or conditions or any other breaches, or the right of the Contractor to avail itself of the remedies it may have for any such breach.

33 PUBLICITY

33.1 Subcontractor shall not disclose the nature of its work on the

Project or engage in any other publicity or public media disclosures with respect to the Project without the prior written consent of the Contractor.

34 SEVERABILITY AND SURVIVAL

34.1 The provisions of the Subcontract are severable, and, if any provision shall be determined to be illegal or unenforceable, such determination shall in no manner affect any other provision of the Subcontract, and the remainder of the Subcontract shall remain in full force and effect. In the event that any provision of the Subcontract is held to be unenforceable or invalid by any court of competent jurisdiction, Contractor and Subcontractor shall in good faith negotiate an equitable adjustment in the provisions of the Subcontract to preserve its purpose and maintain the allocation of risk, liabilities and obligations originally agreed upon, to the maximum extent then possible under Applicable Law.

34.2 Notwithstanding anything to the contrary in the Subcontract, the provisions of the Subcontract setting forth (i) Subcontractor’s obligations with respect to confidentiality, indemnification, and warranty; (ii) limitations on Contractor’s liability; and (iii) any obligation which expressly or by implication survives termination of the Subcontract, shall survive completion of the Work or the earlier termination under Article 15 or Article 16.

35 RESERVED

35.1

36 HAZARDOUS MATERIALS

36.1 Subcontractor shall notify Contractor immediately upon the discovery of the presence of any Hazardous Material on, or the release of Hazardous Material on or from, the Facility Site, and shall proceed in accordance with Article 36.2 hereof in connection therewith.

36.2 In the event a Hazardous Material is discovered to exist at the Facility Site and is one for which Subcontractor is responsible pursuant to Article 36.3 hereof, Subcontractor shall notify Contractor of the presence thereof and be responsible for responding to and handling such Hazardous Material (including but not limited to the condition resulting from the presence thereof) in compliance with the requirements of all Applicable Laws and as directed by Contractor. In the event a Hazardous Material is discovered to exist at the Facility Site and is not one for which Subcontractor is responsible pursuant to Article 36.3 hereof, Subcontractor shall immediately notify Contractor of the presence thereof and thereafter proceed with the performance of the Work as directed by Contractor or otherwise

36.3 Subcontractor is responsible for any Hazardous Material that Subcontractor or any of its Lower Tier Subcontractors creates, brings to or disturbs or releases upon or near the Facility Site.

36.4 Subcontractor shall indemnify, defend and hold harmless the Indemnified Parties against and from all Damages caused or contributed to by any Hazardous Material for which Subcontractor is responsible pursuant to Article 36.3 hereof, subject to Applicable Law.

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36.5 Subcontractor agrees to comply with Federal OSHA Hazard

Communication Standards 29 CFR 1926.59 and 29 CFR

1910.1200 which require that manufacturers, importers and distributors properly label all containers of hazardous materials or components and furnish a Material Safety Data Sheet (“MSDS”) for each hazardous material supplied. One

(1) copy of the related MSDS must be provided with each shipment of any hazardous material.