Exhibit 10.4
TURNKEY CONSTRUCTION AGREEMENT
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THIS AGREEMENT ("Agreement") made as of the 2 day of October, 2000.
BETWEEN:
PLANET EARTH DESIGN BUILD INC., a Corporation incorporated under
the laws of Yukon Territory having its principal place of
business located at 54 Mill Street West, Milverton, Ontario, N0K
1M0
("PEDB")
AND:
HAMILTON BIO CONVERSION INC., a corporation incorporated under
the laws of Ontario and having an office at 2380 Brampton Street,
Hamilton, Ontario L8E 5V9
("NEWCO")
WHEREAS NEWCO intends to engage the professional services of PEDB in connection
with the project as (hereinafter described as the "Project") such Project being
construction of:
Hamilton Bio Conversion Inc.'s Thermo Master(TM) Plant located at
or about 2380 Brampton Street, Hamilton, Ontario
NOW THEREFORE NEWCO and PEDB, in consideration of their mutual promises, duties
and responsibilities to each other as set forth herein, AGREE AS FOLLOWS:
1 THE SERVICES
1.1 PEDB shall provide and perform for NEWCO the services ("Services")
described in Schedule 1 to this Agreement, which are generally described
as:
Project Management, Engineering, Procurement and Construction for
the construction or reconstruction of a Thermo Master(TM) Plant
on property located at or about 2380 Brampton Street, Hamilton,
Ontario
1.2 The Services shall be performed generally in accordance with Schedule 5 to
this Agreement.
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2 AGREEMENT
2.1 The following documents are specifically incorporated into this Agreement
by reference and shall be interpreted and construed in the same manner and
to the same effect as if repeated verbatim herein:
SCHEDULE DESCRIPTION
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1 SCOPE OF WORK/SERVICES
2 COMPENSATION
3 GENERAL CONDITIONS
4 SPECIAL CONDITIONS
5 PROJECT SCHEDULE
6 DRAWINGS
3 CONTRACT PRICE AND PAYMENT
3.1 NEWCO agrees to pay PEDB, in the manner specified in the General Conditions
in Schedule 3 and the Compensation provisions specified in Schedule 2 to
this Agreement, which compensation shall be subject to adjustments as may
be required in accordance with the provisions of the Agreement.
4 ADDRESSES FOR NOTICES
4.1 All notices (the "Notices") under this Agreement shall be in writing and
shall be delivered by person, sent by prepaid registered mail or
transmitted by facsimile or other form of electronic media, provided that
in the case of transmission by facsimile or other form of electronic media,
such system is satisfactorily tested immediately prior to transmission and
confirmation of receipt is obtained. Such notices shall be addressed as
follows:
TO PEDB:
Planet Earth Design Build Inc.
54 Mill Street West,
Milverton, Ontario N0K 1M0
Attention: Mr. Perry Smith
Fax No.: (519) 595-8770
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TO NEWCO:
Hamilton Bio Conversion Inc.
2380 Brampton Street
Hamilton, Ontario L8E 5V9
Attention: The President
4.2 Notices delivered in accordance with the Agreement will be deemed to have
been given and received on the day delivered if delivered by prepaid
registered mail or on the day received if transmitted by fax or other
electronic media, but only if received at the specified address of the
recipient prior to 4:30 p.m. on the relevant business day, otherwise the
Notice will be deemed to have been given and received on the immediately
following business day. In case of postal strike, slowdown or other postal
disruption, notices shall not be mailed but either delivered by hand or
transmitted by facsimile or other form of electronic media, in accordance
with the Agreement.
5 EXECUTION BY FAX
5.1 This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, and all of which shall constitute one
and the same instrument. All of these counterparts will for all purposes
constitute one agreement, binding on the parties, notwithstanding that all
parties are not signatories to the same counterpart. A faxed transcribed
copy or photocopy of this Agreement executed by a party in counterpart or
otherwise will constitute a properly executed, delivered and binding
agreement or counterpart of the executing party.
IN WITNESS WHEREOF the parties hereto have executed this Agreement effective as
of the day and year first above written.
PLANET EARTH DESIGN BUILD INC. HAMILTON BIO CONVERSION INC.
/S/ Perry Smith /S/ Edwin Kroeker
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Signature Signature
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SCHEDULE 1
SCOPE OF SERVICES
PART A - SERVICES INCLUDED
PEDB shall provide the following services:
1. CONSULTING, ADVISORY AND PREDESIGN SERVICES
1.1 Acting as NEWCO's agent as required in connection with the Project;
1.2 Preparing an Engineering Program based upon NEWCO's written instructions in
accordance with the Agreement;
1.3 Assessing and advising on the appropriateness of the program of inspection
and testing services which may be required by NEWCO or imposed by law, for
the execution of the Project by the Contractor;
1.4 At the option of NEWCO, preparing preliminary estimates of the cost of the
Work and Contract Time;
1.5 Preparing submissions required for regulatory and municipal approvals and
assisting NEWCO to apply for such required regulatory and municipal
approvals.
2. ENGINEERING SERVICES
2.1 PEDB will be responsible for performing the following engineering services:
2.1.1General engineering and conceptual design services to describe and
define the Project sufficient to allow detailed design to be performed
by Suppliers of equipment, materials, products and systems to be
incorporated into the Project.
2.1.2 Coordinate with Suppliers regarding interface requirements.
2.1.3Obtain, prepare and review for the site on which the Plant is
intended to be located such surveys, including topographical and
geodetic surveys, soil reports, soil sampling, water analyses,
testing, subsurface investigations, zoning restrictions and utility
locations as may be required by PEDB to assess the most suitable
location on the site for the Project. The cost of obtaining such
information shall be a Reimbursable Cost to PEDB.
2.2 PEDB will perform the Engineering Services described in this Section 2 in
two phases more particularly described, without limiting the generality of
the foregoing, as follows:
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2.2.1Phase One: Based upon the General Technical Specifications, as defined
in Section 1.26 of the General Conditions at Schedule 3, to this
Agreement, PEDB will provide conceptual design services. These
services will include preparing the following in preliminary form:
schematic designs; design development documents; general site layout;
plot plan; grading plan; general building and equipment arrangement;
building requirements in terms of general specifications, sizes and
overall shape and configuration; equipment list; calculations and
diagrams; environmental and utilities information as required to
assist NEWCO in obtaining required permits, licenses and approvals;
erosion control plan before and after construction; process and
instrumentation diagrams; and detailed written Project description.
2.2.2Phase Two: From the documents prepared during Phase One, referred to
in subsection 2.2.1 above PEDB will prepare plans, drawings, and
specifications (the "Drawings and Specifications") setting forth the
requirements for the construction and equipping of the Project.
3. PROJECT MANAGEMENT SERVICES PRIOR TO CONSTRUCTION PHASE
From the date of execution of this Agreement to the date that the
construction phase of the Project commences, PEDB will provide the
following services:
3.1 CONSULTATION DURING PROJECT DEVELOPMENT
Such consultation to include:
3.1.1 Review conceptual designs during development;
3.1.2 Advise on site use and improvements;
3.1.3 Advise on selection of materials, building systems and equipment;
3.1.4Provide recommendations on construction feasibility, availability of
materials and labour, time requirements for installation and
construction, factors related to cost, including costs of alternative
designs or materials, preliminary budgets, and possible economies; and
3.1.5Prepare bid documents, technical specifications, Contracts, other
agreements and documents.
3.2 SCHEDULING
Such scheduling services to include the following:
3.2.1 Supervise, schedule and coordinate all Project activities;
3.2.2 Prepare a Project Schedule;
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3.2.3Update the Project Schedule as required, incorporating a detailed
schedule for the construction of the Project;
3.2.4Utilize critical path methods and procedures, using realistic
activities, sequences and duration, including: dates for release of
bid packages; allocation of labour and materials; processing of shop
drawings and samples; and delivery of products requiring long
lead-time procurement;
3.2.5 Develop general construction schedules for the Contractors;
3.2.6Include NEWCO's occupancy requirements, indicating those portions of
the Project that have occupancy priority;
3.2.7Establish completion dates for construction and supply phases of the
Project and for final completion of the Project; and
3.2.8Keep NEWCO informed as to the status of and changes in the Project
Schedule.
4. CONSTRUCTION BUDGET
PEDB will prepare a Construction Budget as soon as major Project
requirements have been identified, and will periodically update the
Construction Budget. PEDB will also prepare a detailed line item estimate
based on a quantity survey of drawings and specifications and update and
refine this estimate as the development of the Drawings and Specifications
proceeds.
5. COORDINATION OF CONSTRUCTION CONTRACTS
PEDB will review the Contracts as they are prepared by or on behalf of
NEWCO and will recommend alternative solutions whenever design details
affect construction feasibility or schedules.
6. PROCUREMENT AND CONTRACTING
PEDB will procure and coordinate the delivery of all equipment, materials
and services required for the engineering, construction and commissioning
of the Project, such procurement and contracting to include the following:
6.1 Prepare a procurement schedule for planning and monitoring the purchase of
goods and services for the Project to meet the overall Project Schedule;
6.2 Evaluate and pre-qualify selected bidders. For each bid package to be
issued recommend a list of no less than three and no more than eight
qualified bidders;
6.3 Prepare standard bid documents for including with each bid set. This
includes standard bid documents, Invitation to Bid Forms, Bid Forms,
Standard Bid Information Requests, Site Conditions, Standards and
Requirements, General Conditions, Special Conditions, Terms and Conditions
of Purchase Order/Contract, Information to Bidders and Information to
Contractors;
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6.4 Prepare bid packages for each bid such packages to include Bidders List,
Technical Specifications, Drawings, and standard bid package attachments;
6.5 Organize and Coordinate pre-bid site meetings;
6.6 Receive bids from Suppliers and Contractors;
6.7 Recommend equipment, materials and products for purchase;
6.8 Expedite the procurement of long-lead items in accordance with purchase
specifications to obtain delivery by the date scheduled in the Project
Schedule;
6.9 Prepare bid specifications and prepare documents to facilitate the bidding
and awarding of Contracts, allowing for phased construction and taking into
consideration such factors as time of performance, availability of labour,
overlapping trade jurisdictions, provisions for temporary facilities, and
existing operations;
6.10 Determine applicable requirements for equal employment opportunity programs
and union labour requirements compatible with NEWCO's labour union
agreements for inclusion in Contracts;
6.11 Administer labour relations to minimize labour disputes during the Project;
6.12 Review the Contracts to eliminate areas of conflict and overlap in work to
be performed by the various Contractors, and prepare pre-qualification
criteria for bidders. Prepare lists of pre-qualified bidders in
co-operation with NEWCO;
6.13 Solicit interest of prospective Suppliers and Contractors in the Project;
6.14 Receive and analyse competitive bids for the various Contracts and select
appropriate Contractors and Suppliers. Provide consultation services to
TTTI on technical and commercial matters as and when reasonably required;
and
6.15 Initiate, maintain and monitor safety precautions and programs in
connection with the Project to minimise personal injuries and property
damage. This will include the development of a Project Safety Program
compatible with NEWCO's standards.
7. PROCUREMENT
PEDB will procure all equipment and services required for the completion of
the Project, such services to include preparation of procurement plans and
schedules.
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8. CONSTRUCTION MANAGEMENT SERVICES
8.1 PEDB will establish and implement an on-site organization structure and
lines of authority, as required, for the exchange of information and
instructions between PEDB, PEDB's Subconsultants, NEWCO, the Contractors
and the Suppliers with respect to all construction, budget and scheduling
aspects of the Project.
8.2 PEDB will provide and maintain sufficient and competent full-time staff at
the Site to review, inspect, co-ordinate and direct the overall work and
progress of the Contractors and Suppliers.
8.3 PEDB will appoint, and will inform NEWCO of such an appointment, a
Construction Manager who will be:
8.3.1 Fully acquainted with the Project;
8.3.2 Available for consultation with NEWCO; and
8.3.3Present at the Site as required when construction is performed at
Site.
8.4 PEDB may substitute or replace the Construction Manager and will inform
NEWCO of any such change.
8.5 With regard to Contractors and Suppliers, PEDB will:
8.5.1 Co-ordinate the work of the Contractors and Suppliers;
8.5.2Co-ordinate the work of the Contractors and Suppliers with the
activities and responsibilities of NEWCO;
8.5.3Require Contractors and Suppliers to handle and warehouse (according
to the manufacturer's recommendations) materials, supplies, products,
equipment and systems for permanent and temporary construction;
8.5.4Require the Contractors and Suppliers to maintain the work,
materials, supplies, products, equipment and systems free from injury
or damage, including injury or damage from rain, wind, snow, storm,
heat, or cold; and
8.5.5Obtain from the Contractors and Suppliers certificates of insurance
and performance bonds and review same for general compliance with the
insurance and bonding requirements of their Contracts.
8.6 PEDB will schedule delivery of, expedite and receive at Site purchases and
supplied equipment and, in connection with such equipment, will:
8.6.1Implement expediting procedures to maintain equipment delivery
schedules;
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8.6.2Implement equipment receiving procedures, including checking against
purchase orders, inspecting for damage, preparing damage claims if
necessary, recommending approval of invoices for payment, controlling
holdbacks and presenting backcharges;
8.6.3 Arrange warehousing of equipment received; and
8.6.4Co-ordinate with NEWCO for the warehousing of spare parts and
consumable materials for the Project.
9. PERMITS AND APPROVALS
9.1 PEDB will assist NEWCO to:
9.1.1Obtain any necessary permits, licenses, certificates, including,
building permits and special permits, authorizations and certificates
for permanent improvements and equipment that may be required for the
Project, excluding permits for inspection or temporary facilities
required to be obtained directly by the various Contractors;
9.1.2 Obtain necessary approvals from the authorities having jurisdiction;
9.1.3Obtain any necessary permits, licenses, certificates or approvals
required by authorities having jurisdiction;
9.1.4Collect from Contractors and Suppliers such information, calculations
and other materials that may be necessary to prepare documentation
normally required to obtain approvals, permits, licenses and
certificates from authorities having jurisdiction and which can only
be obtained by NEWCO; and
9.1.5Comply with applicable laws, regulations and requirements of
authorities having jurisdiction over the Project.
10. SCHEDULE CONTROL
10.1 PEDB will review the adequacy and ability of the Contractors' and
Suppliers' personnel and equipment and the availability of materials,
products, supplies and systems required to meet the Project Schedule.
10.2 PEDB will schedule and conduct weekly progress meetings at which the
Contractors, Suppliers, PEDB and NEWCO may discuss such matters as
co-ordination, procedures, progress, problems and scheduling.
10.3 On a regular basis, PEDB will monitor and update the Project Schedule as
construction progresses, and will:
10.3.1 Keep NEWCO regularly informed of changes in the Project Schedule;
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10.3.2 Review schedule problems with Contractors and Suppliers and
recommend courses of action to NEWCO if Contractors or Suppliers are
not meeting the requirements of their Contracts;
10.3.3 Identify potential variances between scheduled and probable
completion dates;
10.3.4 Review the Project Schedule for work not started, delayed or
incomplete and recommend adjustments in the Project Schedule to NEWCO,
Suppliers and Contractors to meet the probable completion date; and
10.3.5 On a monthly basis, provide summary reports of all changes that
occurred during the month in the Project Schedule.
11. COST CONTROL
11.1 PEDB will adopt a mutually satisfactory Cost Control Procedure ("Cost
Control Procedure") for monitoring costs during construction, consistent
with the provisions of the Agreement. The Cost Control Procedure will
include details of accounts, audits, orders, Contracts, invoices, payrolls,
insurance, financial reports, progress reports and all other major
administrative procedures and policies.
11.2 PEDB will use on-site monitoring and supervision to monitor, control and
estimate cost during construction in accordance with the Cost Control
Procedure for cost control established prior to commencement of
construction, and will:
11.2.1 Revise and refine the initially approved Construction Budget;
11.2.2 Incorporate approved changes to the Construction Budget as they
occur;
11.2.3 Develop cash flow reports and forecasts as required;
11.2.4 Identify variances between actual, budgeted and estimated
construction costs as applicable and advise NEWCO;
11.2.5 Maintain cost accounting records on authorized work performed on a
unit price, actual cost or force account basis; and
11.2.6 Monitor all materials, equipment and labour entering into the Work
for purposes of progress payments to Contractors.
11.3 PEDB will have the authority to exceed the Construction Budget without the
NEWCO's prior approval, but not without first informing NEWCO of such an
anticipated cost overrun, subject to the following conditions:
11.3.1 For a specific item, piece of equipment or component required for a
given sector or phase of a Project if the expected increase in cost
does not exceed 10% of the amount originally budgeted for that
specific item, equipment or component; and
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11.3.2 For a particular phase or sector of the Project if the expected
increase in cost does not exceed 5% of the amount originally budgeted
for completion of that particular phase or sector of the Project.
11.4 NEWCO will be provided with access to all PEDB's records, books,
correspondence, instructions, drawings, receipts, vouchers, memoranda and
similar data relating to the Project.
11.5 PEDB will preserve all such records, books, correspondence, instructions,
drawings, receipts, vouchers, memoranda, and similar data relating to the
Project for a period of three (3) years from the date of Final Payment, or
for such longer period as may be required by law.
12. PAYMENTS TO CONTRACTORS AND SUPPLIERS
12.1 PEDB will develop and implement a system for the review and processing of
applications for progress payments and final payments by Contractors and
Suppliers. This system will include the review of such applications for
correctness, completeness and compliance with contractual requirements,
including waivers of liens, inspections, and backcharges for faulty work
and equipment.
13. CHANGE ORDERS
13.1 PEDB will develop and implement a system for reviewing and processing of
Change Orders under the Contracts and will:
13.1.1 Determine and approve any necessary or desirable Changes;
13.1.2 Review requests for Changes from Contractors and Suppliers; and
13.1.4 Notify NEWCO of all Change Orders made.
14. MONITORING AND INSPECTION
14.1 PEDB will monitor the construction work in progress, including that of the
Contractors and Suppliers, for compliance with the requirements of the
overall design for the Project, the Contracts, the Purchase Orders and the
Supplier Contracts. If any construction work is found not to be in
compliance with the foregoing, or is otherwise found to be defective or
deficient, then PEDB, provided it has been given appropriate authority
under the Contracts, and if PEDB has not been given appropriate authority
then NEWCO, will:
14.1.1 Require the Contractor or Supplier to stop all or any portion of its
work and require special inspection or testing of such work to be
performed to determine whether it is in compliance with the
requirements of the applicable Contract or Purchase Order, whether or
not such work is then fabricated, installed or completed; and
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14.1.2 Reject and cause to be remedied the work which does not conform to
the requirements of the Contracts or Purchase Orders, or which is
defective or unlawful for any reason.
14.2 Provided, however, that any monitoring or inspection, or failure to monitor
or inspect, by PEDB shall not relieve the Contractors or Suppliers from
their responsibility for construction means, methods, techniques, sequence
and procedures, nor from their responsibility to carry out their Contracts
strictly in accordance with their terms.
14.3 With regard to Project safety, PEDB will:
14.3.1 Designate a responsible member of PEDB's organization whose duties
will include safety at the Site; and
14.3.2 Monitor compliance by Contractors, Suppliers and others at the Site
with the Project Safety Program initiated by PEDB for the Project,
other safety requirements and the programs of authorities having
jurisdiction, provided however that such monitoring will not relieve
the Contractors or Suppliers of their sole responsibilities for the
safety of persons and property, for compliance with the requirements
of all authorities having jurisdiction with regard to the performance
of their work for the Project or from their sole responsibility to
carry out their Contracts strictly in accordance with Contract's
terms.
15. CONTRACTS
15.1 PEDB will reproduce and distribute copies of the Contracts and other
documents required for bidding and field purposes. The costs of
reproduction and distribution will be Reimbursable Costs to PEDB.
16. CONTRACT INTERPRETATION
16.1 If PEDB is expressly given authority by NEWCO in the Contracts to interpret
design intent, then PEDB will do so in an unbiased and impartial manner and
NEWCO will accept such interpretations. If PEDB is not given such authority
in the Contracts, then PEDB will refer all questions relating to the
interpretation of design intent and the Contract to NEWCO, together with
PEDB's recommendations regarding the same.
17. SHOP DRAWINGS AND SAMPLES
17.1 PEDB will review and approve for general conformance with design all shop
drawings, product data and samples submitted by Contractors and Suppliers.
PEDB will establish and implement procedures for expediting, processing and
approving shop drawings, product data and samples.
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18. REPORTS AND PROJECT SITE DOCUMENTS
18.1 PEDB will record the progress of the Project and will submit written
progress reports to NEWCO on a weekly basis, or at such other frequency and
times as NEWCO may reasonably request. The progress reports will include
information on the Contractor's work, status of Supplier Contracts, the
percentage of completion, whether the Project is on schedule, updates to
the Project Schedule, a listing of Change Orders and other relevant
documents. PEDB will keep a daily Project report available for review by
NEWCO and will:
18.1.1 Maintain a current record at the Site of all necessary Contracts,
shop drawings, samples, purchases, materials, equipment, maintenance
and operating manuals, instructions, and other documents, including
revisions thereto, which arise out of the Contracts or the Project;
18.1.2 Obtain from Contractors and Suppliers a current set of record
drawings, specifications, and operating and maintenance manuals. At
the completion of the Project, PEDB will deliver to NEWCO;
(a) Copies of record drawings including: one (1) electronic copy, two
(2) reproducible copies (sepias) and four (4) prints,
(b) Two (2) copies of all specifications, design standards and site
reports
(c) Four (4) copies of all operation and maintenance manuals.
18.1.3 Prepare, maintain and submit to NEWCO cost-control summary reports,
cost-control log, quotation log, vendor log and other reports as
necessary or as required by NEWCO.
19. START-UP ASSISTANCE AND SUPERVISION
19.1 PEDB's construction management staff will assist in and direct the initial
start-up and testing of equipment and systems by the Contractors. PEDB will
provide service under a separate Commissioning and Training Agreement for
start-up assistance and supervision.
20. CHECK-OUT AND COMMISSIONING
20.1 In connection with the check-out and commissioning of equipment and
components of the Project, PEDB will, under the Commissioning and Training
Agreement perform the following services:
20.1.1 Arrange for and schedule such installation and start-up
representatives of Suppliers as PEDB may consider necessary to be
present during start-up;
20.1.2 Schedule the final check-out of equipment by piece and by area;
20.1.3 In conjunction with the maintenance personnel;
(A) direct the check out of utilities, equipment and operating
systems by the Contractors; and
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(B) check equipment and installation of equipment for compliance with
the requirements of the manufacturers of such equipment;
20.1.4 Schedule and implement test running and test start-up procedures and
performance tests to demonstrate compliance with guaranteed
performance levels; and
20.1.5 Co-ordinate the take over by NEWCO's operation personnel of
equipment from Suppliers and Contractors of equipment, by area.
21. COMMISSIONING AND START-UP
21.1 PEDB will provide NEWCO with ten days notice in advance of the date
commissioning of the Project will commence.
21.2 PEDB, under the Commissioning and Training Agreement, will provide
commissioning personnel who will supervise the commissioning of the Project
after start-up. NEWCO will provide operation personnel throughout the
commissioning period who will take instructions from PEDB's commissioning
personnel.
21.3 PEDB will co-ordinate the commissioning personnel of the Contractors and
Suppliers.
21.4 During commissioning of the Project, PEDB will monitor the check-out of
utilities and the operation of systems and equipment by the Contractors,
Suppliers and NEWCO's personnel for readiness, calibration of controls and
equipment, functional verification testing, and other initial operation
functions associated with the start-up and commissioning of the Project as
a whole.
22. OPERATIONS MANUAL
22.1 PEDB will prepare an operations manual for the completed Project. Training
of NEWCO's plant operation personnel, if required by NEWCO, will be
provided under the Commissioning and Training Agreement.
23. SUBSTANTIAL PERFORMANCE
23.1 PEDB will determine and certify the date of Substantial Performance of the
Project and the date of Substantial Performance of each of the construction
Contracts. PEDB will prepare for each Contract a deficiency list of
incomplete or unsatisfactory items and a schedule for their completion.
PEDB will monitor and review the correction and completion by the
Contractors of all defects and deficiencies on their respective deficiency
lists.
24. TOTAL PERFORMANCE
24.1 PEDB will determine and certify the dates of total performance of each of
the Contracts. PEDB will obtain and transmit to NEWCO the guarantees,
affidavits, releases, bonds and waivers required by the Contracts. PEDB
will turn over to NEWCO all necessary keys, manuals, record drawings and
maintenance manuals received from the Contractors.
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25. FINAL INSPECTION PRIOR TO EXPIRY OF WARRANTY
25.1 At the request of NEWCO, PEDB will inspect the Project 60 to 90 days prior
to the end of the guarantee period provided for in the Contracts with the
Contractors and Suppliers, and PEDB will provide to NEWCO a detailed
written report of any non-conformities or deficiencies covered by such
guarantees.
26. CLAIM ASSISTANCE
26.1 If any claim or action is made or brought against NEWCO by any Contractor
or Supplier, PEDB will assist NEWCO in evaluating and defending against
such claim or action. Provided that such evaluation and assistance does not
require a time commitment of more than three (3) working days of an officer
or employee of PEDB, such assistance will be provided without charge. If
such evaluation and assistance extends beyond three (3) working days NEWCO
will pay PEDB at a rate equivalent to PEDB's normal chargeout rates, plus
expenses, for this additional period .
27. POST-CONSTRUCTION SERVICES:
27.1 PEDB will conduct a final Project review and will advise NEWCO as to
continuing or newly-observed defects or deficiencies in the Project
observed during that review.
28. SCHEDULE FOR PERFORMANCE OF SERVICES
28.1 PEDB will provide the Services generally in accordance with the Schedule
for Engineering attached as Appendix A to this Schedule 1, Scope of
Services.
29. DRAWINGS TO BE PROVIDED BY PEDB
29.1 PEDB will prepare the necessary drawings for the Project for tendering and
construction purposes according to the List of Drawings to be provided,
attached as appendix B to this Schedule 1. Suppliers and Contractors will
be responsible for all drawings according to this same appendix B.
29.2 PEDB will determine the actual number of drawings required for the
fulfilment of its responsibilities under this Agreement. If PEDB determines
that it is not necessary to supply all drawings included on the List of
Drawings in appendix B to this Schedule 1 PEDB will not be required to
supply such drawings. If PEDB is required to supply more than an additional
5% of the number of drawings listed on the list of drawings to be provided
in appendix B to this Schedule 1 then NEWCO will pay PEDB for preparing and
providing those drawings based on PEDB's normal hourly chargeout rates.
29.3 PEDB will provide copies of the following documents in the following
quantities to NEWCO for its review:
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<TABLE>
<CAPTION>
Drawing Type and Destination Print Reproducable
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<S> <C> <C> <C>
a) General Layouts, Process and Instrument
Diagrams and Electrical Drawings:
i) Conceptual 2 0
ii) Certified 2 1
b) Other Engineering Drawings Certified 2 1
c) Design Standards and Specifications Certified 2 0
d) Vendor Drawings:
i) Preliminary 3 0
ii) Certified 3 0
e) Vendor Manuals 4 0
f) Site Surveys and Reports 2 0
</TABLE>
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PART B - SERVICES EXCLUDED
PEDB will not be required to provide the following services, rather these
services, as required for the execution of the Project, will be procured by PEDB
on behalf of, and in the name of NEWCO:
1. GENERAL
1.1 All geological investigation and geotechnical engineering;
1.2 Advising on insurance and bonding;
1.3 All environmental investigations, consulting and advice;
1.4 All work and services related to hazardous substances, including but not
limited to encountering, handling, treating or disposing of hazardous
substances;
1.5 All services or work related to nuclear hazards;
1.6 All services and work indicated in the Turnkey Construction Agreement to be
provided by TTTI; and
1.7 All other services and work not specifically mentioned in Part A of this
Schedule 1.
PART C - ADDITIONAL SERVICES
The following Services shall constitute additional Services for which PEDB shall
be paid additional compensation under the Commissioning and Training Agreement
or under the Maintenance Services Agreement to be entered into by PEDB and
NEWCO.
1. GENERAL
1.1 Training of operating and maintenance staff;
1.2 Post-start-up services and assistance for operation or maintenance of the
project facilities.
14
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SCHEDULE 1 - APPENDIX A
SCHEDULE FOR ENGINEERING
<PAGE>
SCHEDULE 1 - APPENDIX B
LIST OF DRAWINGS TO BE PROVIDED
<PAGE>
SCHEDULE 2
COMPENSATION
1.0 FIXED FEE
1.1 NEWCO will pay a lump sum, fixed fee to PEDB in the following amount (the
"Fixed Fee"), exclusive of all Taxes and custom duties:
All amounts at Cost plus 15%
1.2 NEWCO shall pay, in addition to the Fixed Fee, all applicable Taxes and
custom duties.
1.3 The Fixed Fee will be subject to adjustment based on changes to the
Services required by NEWCO under this Agreement.
1.4 The Fixed Fee shall be paid to PEDB in accordance with the following:
1.4.1A down payment of cost plus fifteen percent (15%) of the Fixed Fee
within 14 days of receipt by NEWCO of PEDB's invoice therefor, less
any advance paid to PEDB by NEWCO prior to or upon execution of this
Turnkey Construction Agreement; and
1.4.2The balance of the Fixed Fee in instalments in accordance with the
following schedule of progress payments - Cost plus 15%.
2.0 REIMBURSABLE COSTS AND FLAT RATE CHARGES
2.1 In addition to the amounts to be paid to PEDB as provided for elsewhere in
the Turnkey Construction Agreement, PEDB shall be paid by NEWCO the
following reimbursable costs and flat rate charges:
2.2 The cost of obtaining surveys, including topographical and geodetic
surveys, soil reports, soil sampling, water analyses, testing, subsurface
investigations, zoning restrictions and utility locations as may be
required by PEDB to assess the most suitable location on the Site for the
Project;
2.3 The cost of reproduction and delivery of information, drawings,
specifications and other documents necessary for the Project, including but
not limited to plans, drawings, specifications, contracts and purchase
orders;
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2.4 The expense of long distance telephone calls, telegrams and telex;
2.5 The expense of reproduction and delivery of information, drawings,
specifications and other documents necessary to the Project, and fees paid
for securing approvals, permits or licenses from regulatory agencies having
jurisdiction over the Project;
2.6 The expense of transport, subsistence and lodging in connection with the
Project. Car expenses shall be charged at $0.35 per kilometre, and other
means of travel at cost plus 15%;
2.7 The costs to PEDB that can be demonstrated to result from the insolvency or
failure to perform of any Contractor or Subcontractor;
2.8 The costs of quality assurance such as independent inspection and testing
services;
2.9 Charges levied by authorities having jurisdiction over the Project which
were not reasonably foreseeable at the time of execution of this Agreement;
2.10 Premiums for all bonds and insurance which PEDB may be requested by NEWCO
to provide over and above those normally maintained by PEDB, unless
specified elsewhere in this Agreement to be provided without charge to
NEWCO;
2.11 Costs incurred due to emergencies affecting the safety of persons or
property;
2.12 Legal costs, incurred by PEDB, arising out of the performance of this
Agreement provided that such do not arise out of any negligence or failure
to perform this Agreement in accordance with its provisions;
2.13 Costs incurred by PEDB, with NEWCO's permission, in expediting the rejected
work or the warranty work of Contractors and Subcontractors;
2.14 The costs of auditing when requested by NEWCO;
2.15 The cost of all advertising incidental to the Project; and
2.16 All other costs reasonably incurred by PEDB in the performance of the
Services.
3.0 Any reimbursable costs specified in the immediately preceding Section 2
that are internal costs to PEDB shall be reimbursed at the prevailing rates
charge by other consultants in the same jurisdiction as PEDB for such
costs. Items for which there are no prevailing rates shall be reimbursed at
a rate to reflect PEDB's reasonable internal cost.
4.0 In addition to the above reimbursable costs and flat rate charges, PEDB
shall be entitled to and paid a markup of 15% on such reimbursable costs
and flat rate charges to compensate PEDB for office services,
administration, handling and carrying costs.
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SCHEDULE 3
GENERAL CONDITIONS
CONTENTS
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PAGE
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1. DEFINITIONS AND INTERPRETATION 1
2. PEDB'S SERVICES . . . . . . . . . . . . . . . 6
3. COST ESTIMATES. . . . . . . . . . . . . . . . 6
4. CAD DRAWINGS, COMPUTER SOFTWARE AND DATA. . . 7
5. STANDARD OF SERVICES. . . . . . . . . . . . . 8
6. CHANGES . . . . . . . . . . . . . . . . . . . 9
7. EMPLOYEES AND SUBCONSULTANTS OF PEDB. . . . . 9
8. NEWCO'S RIGHTS AND RESPONSIBILITIES . . . . . 9
9. CONTRACTORS . . . . . . . . . . . . . . . . . 9
10. SCHEDULE, DELAYS AND SUSPENSION OF WORK . . . 9
11. FORCE MAJEURE . . . . . . . . . . . . . . . . 9
12. WARRANTIES AND REPRESENTATIONS. . . . . . . . 9
13. TAXES AND DUTIES. . . . . . . . . . . . . . . 9
14. REIMBURSABLE COSTS. . . . . . . . . . . . . . 9
15. PROGRESS PAYMENTS AND WITHHOLDING OF PAYMENTS 9
16. DAMAGES . . . . . . . . . . . . . . . . . . . 9
17. INDEMNIFICATION . . . . . . . . . . . . . . . 9
18. INSURANCE . . . . . . . . . . . . . . . . . . 9
19. TERMINATION . . . . . . . . . . . . . . . . . 9
20. DISPUTE RESOLUTION. . . . . . . . . . . . . . 9
21. INTELLECTUAL PROPERTY . . . . . . . . . . . . 9
22. HAZARDOUS SUBSTANCES. . . . . . . . . . . . . 9
23. SAFETY AND WORKERS COMPENSATION . . . . . . . 9
24. COMPLIANCE WITH APPLICABLE LAWS . . . . . . . 9
25. WAIVER. . . . . . . . . . . . . . . . . . . . 9
26. INDEPENDENT CONTRACTOR. . . . . . . . . . . . 9
27. LAW AND LANGUAGE OF THE CONTRACT. . . . . . . 9
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28. SUCCESSION. . . . . . . . . . . . . . . . . . 9
29. ASSIGNMENT. . . . . . . . . . . . . . . . . . 9
30. SEVERABILITY. . . . . . . . . . . . . . . . . 9
31. ENTIRE CONTRACT . . . . . . . . . . . . . . . 9
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GENERAL CONDITIONS
1. DEFINITIONS AND INTERPRETATION
1.1 "AGREEMENT" where used in this agreement means the executed Turnkey
Construction Agreement between NEWCO and PEDB, including the attached
Schedules incorporated by reference into the Agreement and which form an
integral part of the Agreement.
1.2 "AUTHORITIES HAVING JURISDICTION" means such provincial, state, federal,
regional, municipal and other authorities and bodies that may or do
exercise some measure of control over the Project or Site through any one
or more of codes, laws, rules, regulations, ordinances, by-laws, decrees
and directions, whether written or unwritten.
1.3 "CHANGE" in relation to the Services means an addition, substitution,
deletion, variation, cancellation, omission or delay of part or all of the
Services required to be performed or provided under the Agreement but, in
relation to the Contract of any Contractor or Supplier, means an addition,
substitution, deletion, variation, cancellation, omission or delay of part
or all of the work required to be performed or provided under the Contract
of that Contractor or Supplier.
1.4 "CHANGE ORDER" in relation to the Services means NEWCO's written
authorization to proceed with a Change in the Services, signed by or on
behalf of NEWCO and PEDB by their respective authorized representatives
but, in relation to the Contract of any Contractor or Supplier, means
PEDB's written authorization to changes in the Contracts, signed by PEDB
and the Contractor or Supplier or by their respective authorized
representatives.
1.5 "CONSEQUENTIAL DAMAGES" to NEWCO means damages, loss, costs and expenses
howsoever caused or arising, related to loss of use, loss of actual or
anticipated profits, loss of markets, loss of production, loss of
productivity, loss of revenue, interest expense, standby time, delay,
impacts, overhead and all other indirect and consequential loss, injuries,
costs, expenses and damages, including without limitation liability to
NEWCO's customers, Contractors, Suppliers and other third parties arising
out of any of the foregoing.
1.6 "NEWCO" is the person, firm or corporation identified as such in the
executed Agreement.
1.7 "NEWCO'S CONSULTANT" means professionals and other specialists, other than
PEDB, engaged by NEWCO directly.
1.8 "CONSTRUCTION BUDGET" means PEDB's estimated Construction Cost including
contingencies for cost increases.
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1.9 "CONSTRUCTION COST" means the total of all Contracts, Supplier Contracts,
Purchase Orders and all other costs of the Project, including all
applicable Taxes whether recoverable or not, but does not include the
compensation of PEDB and its Subconsultants under this Agreement, the cost
of the land, financing costs, legal costs, development costs, or the costs
of the employees and consultants of NEWCO.
1.10 "CONSTRUCTION MANAGER" means the representative of PEDB designated as such
by PEDB in writing to NEWCO.
1.11 "PEDB" has the meaning specified in the preamble to this Agreement.
1.12 "CONTRACT" and "CONTRACTS" means the agreement(s) with the Contractor(s)
for the provision of one or more of labour, services, materials, products,
equipment and systems in connection with the construction of the Project.
1.13 "CONTRACT DOCUMENTS" means the documents comprising the Contract or
Contracts, as applicable, including but not limited to all plans, drawings,
specifications and other documents relating to the Project issued by or
through PEDB that are referenced in or otherwise incorporated into the
Contracts.
1.14 "CONTRACTOR" and "CONTRACTORS" means the party or parties contracting
directly with NEWCO or PEDB as NEWCO's agent for the provision of one or
more of labour, services, materials and equipment in connection with the
construction of the Project, and unless the context otherwise requires
includes Suppliers.
1.15 "CONTRACT TIME" with respect to each Construction Contract means the
projected date for substantial performance of the Construction Contract as
specified in the Contract between PEDB or NEWCO and the Contractor.
1.16 "COST CONTROL PROCEDURE" has the meaning as defined at 11.1 of Schedule 1
to this Agreement.
1.17 "DAY" and "DAY" means one calendar day.
1.18 "ELECTRONIC INFORMATION" has the meaning as defined at 4.1 of these General
Conditions.
1.19 "ENGINEERING PROGRAM" means the package of engineering services required to
deliver the specific Turnkey Plant Project, including such things as site
engineering, preparation of site specific plant drawings, local engineering
tasks and engineering modifications and interpretations which may be
required to meet local regulatory requirements;
1.20 "DRAWINGS AND SPECIFICATIONS" means the plans, drawings and specifications
prepared by PEDB for the Contracts based on the preliminary design, general
layout and specifications for the Project approved by NEWCO.
1.21 "FIELD INSPECTION" means inspection of the Contractor's work by PEDB by
applying such random sampling procedures on the site as PEDB in its sole
professional discretion considers necessary to enable it to ascertain
whether the Contractor is generally carrying out the work in general
conformity with the design concepts for the Project.
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1.22 "FIELD SERVICES" means the provision of personnel at the Site by PEDB to
interpret drawings and specifications, to carry out Field Inspection and to
administer and coordinate the Project.
1.23 "FINAL PAYMENT" has the meaning as defined in Section 15.3 to these General
Conditions.
1.24 "FIXED FEE" means the fixed fee, if any, which is specifically set out in
the executed part of the Agreement between the parties. If there is no
fixed fee specified in the executed part of the Agreement then the term
"Fixed Fee" wherever used shall be deemed to mean the total fee to be paid
to PEDB under the Agreement, as adjusted in accordance with the Agreement.
1.25 "FORCE MAJEURE" and "ACTS OF FORCE MAJEURE" mean acts of any national,
civil or military authority, governmental priorities, civil commotion, war,
insurrection, acts of the public enemy, riots, epidemics, sabotage, fires,
explosions, storms, floods, earthquakes, adverse weather conditions, acts
of God, embargoes, injunctions or stoppages of work pursuant to an order of
a court or other public authority which order is not issued as a result of
an act or fault of either party, inability due to causes beyond the
reasonable control of a party to obtain necessary and proper labour or
transportation, strike, lock-out or other labour disruption, or delays
beyond the reasonable control of a party of carriers and suppliers, and
similar events or conditions (excluding financial inability and financial
inability to prevent or mitigate any of the foregoing) beyond the
reasonable control of a party which delay or prevent that party's
performance of the Agreement, provided that such delay or prevention was
not caused in whole or in part by that party's wilful act or negligence.
Notwithstanding the foregoing, strikes, lock-outs and labour disputes
between NEWCO and its employees shall not constitute Force Majeure unless
they are part of an industry wide strike, lock-out or labour dispute
involving all other unionized companies in the same industry in the
jurisdiction in which the Site is located.
1.26 "GENERAL TECHNICAL SPECIFICATIONS" means the general specifications for the
Project attached as Schedule 5 to the Agreement.
1.27 "HAZARDOUS SUBSTANCES" means any contaminant, pollutant, dangerous
substance, toxic substance, nuclear material or substance, liquid waste,
industrial waste, gaseous waste, hauled liquid waste, hazardous material,
or hazardous substance as defined or identified pursuant to any federal,
provincial, state, regional or municipal statute, by-law, regulation,
ordinance, order or publication, or any other applicable law or publication
of any authority having jurisdiction, relating to the environment,
occupational health and safety, product liability or transportation and,
without limiting the generality of the foregoing, includes any soil or any
solid, liquid or gaseous substances containing any of the foregoing.
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1.28 "NUCLEAR MATERIALS" has the meaning as indicated in section 22.3 of these
General Conditions.
1.29 "MONTH" and "MONTH" means one calendar month.
1.30 "OWNER" means the person, firm or corporation that owns the property where
the Project is to be located. The Owner may be, but is not necessarily,
NEWCO.
1.31 "PLACE OF THE WORK" means the province, state or country in which the
designated Site of the Project is located.
1.32 "PROJECT" has the meaning assigned to this executed Agreement.
1.33 "PROJECT MANAGER" means the representative of PEDB designated as such by
PEDB in writing to NEWCO.
1.34 "PROJECT SCHEDULE" means initially the preliminary schedule for the Project
either attached as a separate schedule to the Agreement or specifically set
out in the Agreement, which may be amended or varied from time to time in
accordance with the Agreement. If no Project Schedule is attached or
specifically set out in the Agreement, then the Project Schedule means the
schedule for the Project prepared by PEDB to coordinate and integrate the
Services with the construction schedules for the Project.
1.35 "PURCHASE ORDER" means NEWCO's order for the provision of labour, services,
equipment, material, products, systems or other items from a Contractor or
Supplier.
1.36 "SCHEDULE FOR ENGINEERING" means the schedule specified in or attached to
the Agreement and which indicates the general time frame within which the
various parts of the Services are to be provided by PEDB. If no separate
Schedule for Engineering is included in the Agreement and if specific parts
of the Services to be provided by PEDB are clearly and separately
identified in the Project Schedule, then the Schedule for Engineering shall
be construed to mean those portions only of the Project Schedule that
clearly and separately identify the specific Services of PEDB under the
Agreement.
1.37 "SERVICES" means the services of PEDB as defined in this executed
Agreement.
1.38 "SHOP DRAWINGS" means drawings, diagrams, illustrations, schedules,
performance charts, technical brochures and other data which are provided
by the Contractors or Suppliers to illustrate details of their work.
1.39 "SITE" means the property for which the Services are performed and upon
which the Project is located or to be constructed.
1.40 "SUBCONSULTANT" means anyone engaged directly by PEDB in connection with
the Project for the provision of one or more of design services, labour,
materials, equipment, products, systems or supplies which PEDB is obligated
to provide under this Agreement, and includes subconsultants and
subcontractors of PEDB.
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1.41 "SUBCONTRACTOR" is a person, firm or corporation having a direct contract
with a Contractor to perform a part or parts of the Work or to supply
products for the Work, including but not limited to products worked to a
special design.
1.42 "SUBSTANTIAL PERFORMANCE" of the Project as a whole is as defined in the
lien legislation applicable to the Place of the Work. If such legislation
is not in force or fails to use or define such term, Substantial
Performance means when all of the Work for the Project as a whole is ready
to use or is being used for the purpose intended and is so certified by
PEDB. In connection with any particular construction Contract, Substantial
Performance of the Contract means when the work that is the subject of the
Contract is ready to use or is being used for the purpose intended and is
so certified by PEDB.
1.43 "SUPPLIER" is a person, firm or corporation contracting directly with NEWCO
for the provision of one or more of equipment, materials, products and
systems which will form a permanent part of the Work and includes Vendors.
1.44 "TAXES" means all taxes and duties, other than personal and corporate
income taxes, imposed by Canada, any province or territory thereof, or any
political subdivision of the foregoing or any foreign jurisdiction, and
includes without limitation all social services, federal goods and
services, value added, sales, use and gross receipts taxes, as well as all
import and custom duties, excise taxes and similar taxes and contributions
levied or imposed by any level of government or any authority having
jurisdiction.
1.45 "TRADE CONTRACTOR" means Subcontractor.
1.46 "VENDOR" is a person, firm or corporation contracting with NEWCO to provide
equipment to NEWCO for incorporation into the Project.
1.47 "WORK" means the totality of all labour, materials and equipment used or
incorporated into the Project by the Contractors and Suppliers pursuant to
the Contracts and Purchase Orders.
1.48 References to an article, clause or paragraph of these General Conditions
or any part of the Agreement made by reference to the term "Article",
"General Condition", "GC" or some similar designation followed by a number
shall be deemed to be a reference to the article, general condition, clause
or paragraph of this Agreement plus all clauses, paragraphs and
sub-paragraphs containing that number as a prefix.
1.49 Wherever the singular, masculine or neuter is used in this Agreement it
shall be construed as if the plural or feminine or body corporate, as the
case may be, had been used where the context or the parties so require.
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1.50 In the event of any conflict, variation, ambiguity or inconsistency between
the terms of the executed Agreement and any schedules attached to the
Agreement, the terms and conditions of the Agreement shall prevail and the
provisions of any schedules shall govern in the following order of
precedence, with the first listed taking priority over those listed after
it:
Scope of Work/Services
Compensation
Special Conditions
General Conditions
Specifications/Drawings
Project Schedule
Other Schedules
Provided, however, that where any provision in any schedule specifically
refers to another schedule or another part of the Agreement by express
reference and then expressly modifies or amends that other provision, then
such modification or amendment shall take precedence and prevail.
2. PEDB'S SERVICES
2.1 PEDB will provide the Services to NEWCO in accordance with the terms of the
Agreement.
2.2 PEDB will obtain all business permits and licenses that are required of
PEDB to perform its Services under the Agreement.
2.3 NEWCO, upon request from PEDB, will employ and pay as NEWCO's Consultants
such specialist consultants, including but not limited to geotechnical,
environmental, hydrology and other consultants, as PEDB may reasonably
require to enable PEDB to provide the Services in a manner satisfactory to
PEDB. NEWCO and NEWCO's Consultants shall be solely responsible for the
work and services of all NEWCO's Consultants.
2.4 If PEDB or anyone employed by or through PEDB is subpoenaed or otherwise
required to attend and testify before any court or in any arbitration
proceeding with regard to any matter relating to the Services, other than
with regard to a dispute solely between NEWCO and PEDB, then PEDB shall be
paid its normal charge out hourly rates for such personnel, plus all costs
and expenses, for preparing for and testifying before such court or
arbitration proceeding.
3. COST ESTIMATES
3.1 PEDB will not be responsible for overruns in estimates of Construction
Costs contained within the Construction Budget. As neither PEDB nor NEWCO
has control over the cost of labour, materials or equipment, or over the
Contractor's methods of determining bid prices, or over competitive
bidding, market or negotiating conditions, PEDB cannot and does not warrant
or represent that bids or negotiated prices will not vary from any
estimates of Construction Cost by PEDB. PEDB in any event shall not be
liable or responsible for any variance from any estimated or budgeted
Construction Cost or Project budget, whether established under the
Agreement or otherwise, and any such variance shall not constitute grounds
for NEWCO withholding fees or any other payments due to PEDB.
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3.2 If the bidding or negotiation phase for the Work to be constructed by a
Contractor has not commenced within three months after PEDB submits the
tender documents to NEWCO, the budget for the Construction Cost shall be
adjusted to reflect any change in the general level of prices in the
construction industry between the date of submission of the tender
documents to NEWCO and the date on which tenders are sought.
4. CAD DRAWINGS, COMPUTER SOFTWARE AND DATA
4.1 Unless otherwise expressly provided in the Agreement and initialled by PEDB
at the time of execution of the Agreement, the provision to NEWCO by PEDB
of any computer software, computer data, CAD drawings or computer hardware
(the "Electronic Information"), including providing same by or through
electronic media such as disk or tape or by or through electronic transfer,
shall be provided subject to the following terms and conditions and express
limitations of liability:
4.1.1Electronic Information provided by PEDB will be in the format used by
PEDB. PEDB does not warrant compatibility with any computer or any
other electronic equipment of NEWCO and PEDB shall not be required to
amend or vary the files to accommodate or take into account any
incompatibility between the files and the software or hardware used by
NEWCO.
4.1.2PEDB shall not be responsible for making the Electronic Information
compatible with any existing or future computer or electronic
equipment of NEWCO. Further, PEDB shall not be responsible nor have
any liability whatsoever to update any of the Electronic Information
in future.
4.1.3The Electronic Information is provided solely for use in the Project
and for no other use or purpose.
4.1.4All copyright and intellectual property rights in and to the
Electronic Information shall, as between NEWCO and PEDB, remain the
property of PEDB.
4.1.5PEDB is not responsible for the accuracy of the CAD files and does
not represent or warrant that the CAD files contain the latest
versions of, or revisions to, the drawings. Further, PEDB does not
represent or warrant that the CAD files contain the same information
as, or are identical to, the printed versions of the drawings issued
to NEWCO or to any Contractor. NEWCO acknowledges, understands and
agrees that there may be differences between drawings provided to
NEWCO or Contractors in print and the information contained in the CAD
files, even if they are apparently identified by the same revision
number.
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4.1.6The recipient of any Electronic Information from PEDB shall be solely
responsible for verifying that the CAD files received from PEDB
represent drawings identical to the drawings that they receive or have
received from PEDB and that the CAD files may represent different
versions or variations of the same drawings. The recipient of any
Electronic Information shall be solely responsible for ensuring all
revisions to drawings by PEDB made subsequent to the version
represented by the CAD files provided by PEDB are incorporated into
the CAD files which were received, as well as all drawings and files
that the recipient has created based on or using those original CAD
files.
4.1.7In the event of any conflict or inconsistency between any drawing
issued in print by PEDB and any CAD file, the drawing issued in print
shall govern.
4.1.8PEDB shall bear no liability whatsoever for any computer or other
electronic viruses or defects or deficiencies contained in any
Electronic Information provided by PEDB to NEWCO or anyone else.
4.2 Notwithstanding any other provision of the Agreement, the only warranty
provided with regard to any Electronic Information is that PEDB will
replace, at no charge, defective Electronic Information that is returned to
PEDB within ninety (90) days of the date it is first provided by PEDB. If
PEDB is unable to correct the defective Electronic Information and replace
it within such time period as PEDB may consider appropriate in its
discretion, then PEDB will refund the cost of the Electronic Information,
but excluding the cost of any work or services provided by PEDB with regard
to the creation, modification or provision of the Electronic Information to
NEWCO. The foregoing is in lieu of all other warranties, express or
implied, including but not limited to any and all warranties of
merchantability and fitness for purpose, whether implied pursuant to the
Agreement, by statute or otherwise. In no event shall PEDB be liable for
any Consequential Damages arising out of or relating to the use or
inability to use the Electronic Information.
4.3 The provisions of this Section 4 are in addition to all other disclaimers
and limitations of liability in the Agreement.
5. STANDARD OF SERVICES
5.1 Any design, engineering, architectural or other such professional services
required by this Agreement to be performed by or through PEDB which are
required by law or the authorities having jurisdiction to be performed by
licensed or registered professional engineers or architects will be
performed by licensed or registered professional engineers and architects.
5.2 In the performance of its Services, PEDB and its Subconsultants will
exercise the standard of care normally exercised by licensed or registered
professional architectural, engineering, construction management and
project management personnel who perform comparable services in the
jurisdiction in which the Services are performed.
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5.3 PEDB will use reasonable efforts to perform its Services expeditiously and
economically, consistent with the interests of both NEWCO and PEDB.
6. CHANGES
6.1 NEWCO, with PEDB's consent, may make Changes by adding to, deducting from
or modifying the Services and shall confirm such Changes by issuing written
Change Orders to PEDB. PEDB will not be required to proceed with any
Changes in the Services unless provided with a written Change Order signed
on behalf of NEWCO. If PEDB encounters a Change and proceeds with the
Change prior to obtaining a Change Order signed by NEWCO, then NEWCO will
promptly sign and forward to PEDB a Change Order confirming such Change.
6.2 If PEDB and NEWCO fail to agree on the amount to be paid to PEDB for any
Change, then PEDB will be paid for its time and for its reimbursable costs
based on the schedule of hourly rates and reimbursable costs, if any,
specified in the Agreement or, if none is specified, then based on PEDB's
normal rates charged for the class of personnel and disbursements involved
in the Change. Payment for any Change in accordance with the foregoing
shall be in addition to and not included within any Fixed Fee specified in
the Agreement.
6.3 If PEDB considers any direction or instruction of NEWCO to constitute a
Change but NEWCO fails to agree that the direction or instruction is a
Change, then PEDB may, but will not be required to, proceed with the
direction or instruction and the issue of whether it constitutes a Change
will be resolved in accordance with the dispute resolution provisions of
the Agreement. Further, if PEDB performs any work or services beyond that
which PEDB believes is required of PEDB under the Agreement and if PEDB and
NEWCO subsequently fail to agree on whether such work or services
constitutes a Change, then the issue of whether such work or services
constitutes a Change will also be resolved in accordance with the dispute
resolution provisions of the Agreement. In either event, if it is
subsequently determined that any additional work or services are or
constitute Changes under the Agreement then PEDB will be paid for the
Changes in the same manner and in the same amount as if they had been
authorized in writing by NEWCO as Changes prior to their performance by
PEDB.
6.4 The schedule for the performance of the Services and, if required, the
schedule for the Project as a whole shall be reasonably extended as
required by PEDB to accommodate and account for any Changes under the
Agreement.
6.5 In an emergency endangering life or property PEDB will perform such
additional services and work as may be required to prevent or minimize
threatened damage, injury or loss. In such case, PEDB will be paid its
reasonable costs of such additional services and work based on the rates
specified in the Agreement for personnel and disbursements or, if no such
rates are specified in the Agreement then based on PEDB's normal charge out
rates for personnel and disbursements.
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6.6 If a Change in the Services, including any changes to plans, drawings,
specifications or other documents prepared by PEDB, is required by any
authorities having jurisdiction over the Project or the Services, or in
relation to the manner in which the Services are or have been performed,
then PEDB will comply with the requirements of the authorities having
jurisdiction and perform such additional services and work as they may
require. In such case, PEDB will be paid additional compensation and the
schedule shall be adjusted in the same manner and to the same extent as if
a Change had been authorized and a Change Order agreed to by both NEWCO and
PEDB.
6.7 PEDB will have authority to order minor Changes in the work of the
Contracts of the Contractors and Suppliers, provided that they do not
involve an adjustment in the price of such contracts or an extension of the
Project Schedule, and provided that they are not inconsistent with the
intent of those Contracts. Such Changes in the Contracts may be effected by
field order or by other written order or direction of PEDB.
6.8 PEDB is not responsible for changes in the requirements of the authorities
having jurisdiction which were not reasonably foreseeable by PEDB at the
time any parts of the Services affected by those requirements were
performed. If such changes in requirements by the authorities having
jurisdiction require any completed work or services to be amended or
revised, PEDB shall be paid for such amendments and revisions in the same
manner as if a Change had been authorized and a Change Order agreed to by
both NEWCO and PEDB.
7. EMPLOYEES AND SUBCONSULTANTS OF PEDB
7.1 All Services required to be performed by PEDB under the Agreement will be
performed by or under the supervision of PEDB. All personnel engaged in the
performance of the Services by or through PEDB will be qualified by
education or experience to perform the work in which they are engaged and
shall have such professional qualifications and credentials as may be
required by the authorities having jurisdiction over their work.
7.2 Sufficient qualified personnel will be employed by or through PEDB to
perform the Services required of PEDB under the Agreement. Such personnel
will not be employees of or have any contractual relationship with NEWCO
and NEWCO will not, except through PEDB, directly or indirectly employ any
such personnel without the prior written consent of PEDB.
7.3 If NEWCO reasonably objects to any personnel employed by or through PEDB on
this Project, PEDB will replace or cause to be replaced such personnel with
other, similarly qualified personnel.
7.4 PEDB may subcontract part or all of its Services under the Agreement to
Subconsultants. PEDB will notify NEWCO of any such subcontracting. PEDB
will be responsible for and liable to NEWCO for the parts of the Services
performed by its Subconsultants to the same extent as if such parts of the
Services were performed directly by PEDB.
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7.5 PEDB may, at its discretion, engage directly such specialist consultants,
including but not limited to geotechnical, environmental, hydrology and
other consultants, as PEDB may reasonably require to enable PEDB to provide
the Services in a manner satisfactory to PEDB. Unless such specialist
consultants are expressly included in the Services to be provided by PEDB
in the Agreement, PEDB shall be reimbursed the cost of the specialist
consultants plus such markup for administration, overhead and profit as may
be prescribed in a schedule or elsewhere in the Agreement, or if no markup
is prescribed, then a markup of 15% percent.
8. NEWCO'S RIGHTS AND RESPONSIBILITIES
8.1 NEWCO will designate a representative of NEWCO who will be fully acquainted
with the scope of the Project and who will have full authority from NEWCO
to render decisions promptly and to furnish information expeditiously. Such
representative at all times will be available on reasonable notice in
person or by telephone.
8.2 NEWCO shall make available to PEDB all relevant information or pertinent
data as may be required by PEDB to plan and perform the Services.
8.3 NEWCO will provide and pay for all legal, accounting and insurance services
as may be necessary for the Project, including such auditing services as
NEWCO may require to verify the Contractor's applications for payment or to
ascertain how or for what purpose the monies paid by or on behalf of NEWCO
have been used.
8.4 NEWCO, upon request from PEDB, will employ and pay as NEWCO's Consultants
such specialist consultants, including but not limited to geotechnical,
environmental, hydrology and other consultants, as PEDB may reasonably
require to enable PEDB to provide the Services in a manner satisfactory to
PEDB. NEWCO and NEWCO's Consultants shall be solely responsible for the
work and services of all NEWCO's Consultants.
8.5 NEWCO will, in a timely fashion and within such time periods as may be
necessary to avoid delays, interference or additional cost to PEDB, provide
to PEDB full information regarding NEWCO's requirements for the Project,
including but not limited to NEWCO's design objectives, constraints and
criteria, spatial and functional requirements and relationships,
flexibility and expandability, special equipment and systems, budgetary
limitations, performance and design criteria, time constraints and site
requirements. If NEWCO specifies materials or equipment to be used for the
Project, or approves the selection of such materials or equipment, then
NEWCO shall be solely responsible for the applicability and suitability of
the materials or equipment.
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8.6 In connection with the design of processes and the Project, NEWCO shall
provide to PEDB accurate data, information and conceptual design criteria
as may be considered necessary by PEDB and PEDB shall be entitled to rely
upon such data and information.
8.7 NEWCO, with the assistance of PEDB, will prepare an initial Construction
Budget.
8.8 NEWCO will provide and pay for a legal description and a certified land
survey of the site and adjoining properties as necessary for the design of
the Project.
8.9 NEWCO will, in a timely fashion and within such time periods as may be
specified or necessary to avoid delays, interference or additional cost to
PEDB, given consideration to and examine all documents, information and
other materials, including sketches, drawings, specifications, tenders,
proposals and contracts, submitted by PEDB and provide PEDB with such
decisions, directions and approvals as may be considered necessary by PEDB
for PEDB to perform its Services. NEWCO shall be deemed to have approved
any documents, information and other materials submitted by PEDB unless
NEWCO rejects same in writing to PEDB within seven days of submission by
PEDB.
8.10 Except as otherwise expressly specified in the Agreement, NEWCO will make
all reasonable efforts to obtain all required consents, approvals, licenses
and permits from all authorities having jurisdiction.
8.11 NEWCO will promptly and in a timely fashion fulfil its responsibilities to
allow the orderly and economical performance and progress of the Services
by PEDB and the construction of the Project by others.
8.12 NEWCO will arrange and make provision for the entry and ready access to the
Site by PEDB and its Subconsultants as necessary to enable PEDB to perform
its Services.
8.13 NEWCO will, as required by PEDB, arrange for the handling, transportation,
storage and disposal of Hazardous Substances and other toxic substances
encountered on or under the Site.
8.14 If NEWCO becomes aware of any default or defect in the Project or any
non-conformance or non-compliance by any Contractor or Supplier with the
requirements of any Contract, or by PEDB or any of its Subconsultants,
NEWCO will immediately notify PEDB in writing.
8.15 NEWCO will furnish free of charge to PEDB electricity, water, heating oil
or gas, telephone, fax, office facilities and toilet facilities on Site.
8.16 If the Services specifically and expressly include any start-up or
commissioning responsibilities on the part of PEDB, then NEWCO will provide
and pay for all materials and all operation and maintenance personnel
required by PEDB to allow PEDB to start-up the Project on a timely basis
and in accordance with the Project Schedule. NEWCO's personnel will work
under the direction of PEDB during start-up and commissioning of the
Project.
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9. CONTRACTORS
9.1 PEDB will, on behalf of NEWCO, request and receive proposals from
Contractors and Suppliers and review same with NEWCO. Contracts with
Contractors and Suppliers will only be awarded after the proposals are
approved by NEWCO.
9.2 If NEWCO elects not to require any Contractor to provide a performance bond
and a labour and material payment bond in an amount equal to or greater
than one-half the value of the applicable Contract, then PEDB shall be
relieved of any liability that PEDB may have to NEWCO in connection with
such Contract to the extent that NEWCO's damages, costs and expenses would
have been reduced if NEWCO had required the Contractor to provide bonds in
a form generally acceptable in the industry and worded so as to include all
warranties and guarantees of the Contractor.
10. SCHEDULE, DELAYS AND SUSPENSION OF WORK
10.1 PEDB shall make every reasonable effort to complete the Services generally
in accordance with the time periods set forth in the Schedule for
Engineering included in the Agreement. Unless otherwise expressly warranted
and guaranteed the Schedule for Engineering shall be considered and deemed
approximate only.
10.2 If PEDB is delayed at any time in the progress of the Project or its
Services by any Changes in the Services, by any Changes or Change Orders in
the Contracts, by any act or neglect of NEWCO, or by any cause beyond the
reasonable control of PEDB, including but not limited to any failure of any
governmental authority to issue or any inability of NEWCO to obtain
necessary consents, grants, permits, licenses, authorizations, approvals,
variances or final zoning approvals, or environmental, construction and
operating permits, then both the Schedule for Engineering and the Project
Schedule will be extended by the amount of time PEDB is delayed by such
event(s) and PEDB will be paid additional compensation for all time and
costs associated with such delay in accordance with the charge out rates
specified in the Agreement for personnel and disbursements or, if no such
rates are specified, then in accordance with the rates normally charged by
PEDB for such personnel and disbursements. Such compensation shall be in
addition to any Fixed Fee otherwise specified in the Agreement.
10.3 NEWCO may, without cause, order PEDB to suspend, delay or interrupt the
performance of its Services or the Project in whole or in part for such
period of time as NEWCO may determine. Such suspension, delay or
interruption will be deemed to be a delay beyond the control of PEDB, in
which case:
10.3.1 both the Schedule for Engineering and the Project Schedule will be
adjusted by the amount of the delay and the impact of the delay on
such schedules;
10.3.2 NEWCO will pay PEDB the reasonable increase in cost to PEDB of
performing the Agreement as a result of such suspension, delay or
interruption by NEWCO;
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10.3.3 PEDB will make reasonable efforts to use the same personnel as
previously used in providing the Services upon resumption of the
performance of the Services and reserves the right to substitute other
personnel if the original personnel are no longer available, whether
due to other commitments of the personnel, other commitments of PEDB,
changes of employment, illness, incapacity, death or otherwise; and
10.3.4 if the period of suspension exceeds 90 days on a cumulative basis,
unless PEDB otherwise agrees in writing, the Agreement will be deemed
to be terminated effective as of the 90th day and PEDB shall then be
compensated in the same manner as if the Agreement had been terminated
pursuant to Section 19 to this Schedule effective as of that day.
10.4 If any part of the Services are provided on a "fast track" or expedited
basis, pursuant to which there is insufficient time to properly review,
co-ordinate and check all drawings, designs and specifications in detail
before proceeding with tendering and construction activities, or pursuant
to which engineering, design, drawings and specifications proceed
coincidentally with tendering and construction activities, then PEDB shall
not be responsible or liable for any errors or omissions in the performance
of the Services and, as between PEDB and NEWCO, NEWCO shall be solely
responsible for all additional costs, damages and delays incurred by PEDB,
NEWCO, the Contractors and the Suppliers.
11. FORCE MAJEURE
11.1 Neither party will be deemed to be in breach of the Agreement if its
failure to perform or if its delay in performing any obligation is due
wholly or in part to Force Majeure.
11.2 Except to the extent allowed elsewhere in the Agreement for specific acts
or events of Force Majeure, each party will be solely responsible for its
own costs and expenses suffered or incurred as a result of Force Majeure.
11.3 Each of NEWCO and PEDB will notify the other promptly of any failure to
perform or any delay in performing due to Force Majeure and will, as soon
as practicable, provide an estimate to the other party as to when the
obligation will be performed. Unless NEWCO and PEDB otherwise agree, the
time for performing the obligation shall be extended for a reasonable
period of time, which will be not less than the length of the delay
resulting from such a cause. Both NEWCO and PEDB will explore all
reasonable avenues and alternatives available to avoid or mitigate such
delays.
11.4 If the obligation of either party is delayed by a period of not less than
three consecutive months due to Force Majeure, and if NEWCO and PEDB have
not agreed upon a revised basis for performing the obligation, then either
party may upon 30 days prior written notice terminate the Agreement, in
which case PEDB will be paid in the same manner as if the Agreement was
terminated pursuant to Section 19 of this Schedule as of the 30th day after
the date written notice of termination was provided as aforesaid.
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12. WARRANTIES AND REPRESENTATIONS
12.1 PEDB represents and warrants that it is financially solvent, able to pay
its debts as they mature, possessed of sufficient working capital to
complete the Agreement and is experienced in and competent to perform the
Services contemplated by the Agreement.
12.2 NEWCO represents and warrants that it is financially solvent, able to pay
its debts as they mature, possessed of sufficient working capital and has
sufficient construction financing available to complete the Agreement and
the Project.
12.3 NEWCO represents and warrants that there are no Hazardous Substances under,
in or on the Site except as specifically disclosed on a schedule attached
to the Agreement. Unless the Agreement otherwise expressly provides to the
contrary, NEWCO shall be solely responsible for the storage, removal,
remediation or other treatment of all Hazardous Substances in accordance
with the requirements of all authorities having jurisdiction, whether or
not such Hazardous Substances are disclosed on a schedule to the Agreement
or otherwise. Further, if Hazardous Substances are discovered that are not
disclosed on an attached schedule, NEWCO will be solely responsible at its
cost for taking all necessary steps to render the Hazardous Substances
harmless and removing them from Site. The Project Schedule and schedule for
the performance of the Services will be extended and, in addition to any
compensation otherwise due to PEDB, all additional time and costs incurred
by PEDB as a result of the presence of Hazardous Substances shall be paid
to PEDB, based on the charge out rates for personnel and disbursements
specified in the Agreement or, if none are specified, then based on PEDB's
normal charge out rates for personnel and disbursements in the same manner
as pursuant to a duly authorized Change Order.
12.4 Each party represents and warrants that it has full power and authority to
enter into and perform the Agreement, that all necessary proceedings have
been taken to authorize it to enter into the Agreement, that the Agreement
has been signed by a duly authorized representative of such party, and that
upon signing such party shall thereby be validly bound. Each party
acknowledges that it has read the Agreement, understands it and agrees to
be bound by it.
13. TAXES AND DUTIES
13.1 Subject to express and specific provisions to the contrary in the executed
Agreement, NEWCO shall pay all Taxes required or imposed by law or by any
authority having jurisdiction and which may be applicable to the fees,
reimbursable costs or other amounts or compensation paid to PEDB under the
Agreement. NEWCO will make all returns or reports, or both, required in
connection with all such Taxes.
13.2 NEWCO will, as between NEWCO and PEDB, be solely responsible for paying or
ensuring the payment of all Taxes required to be paid in connection with
the Contracts of the Contractors, Subcontractors and Suppliers and the
provision of any equipment, materials, products and systems directly by
NEWCO for the Project.
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14. REIMBURSABLE COSTS
14.1 Subject to a clear and express provision to the contrary elsewhere in the
Agreement, in addition to the fee to be paid to PEDB, NEWCO shall pay those
Reimbursable Costs and flat rate charges of PEDB that are expressly set out
in the Agreement or any schedules to the Agreement as Reimbursable Costs or
flat rate charges or, if none are set out, then those which are normally
charged by other consultants for similar services in the same jurisdiction
as PEDB. PEDB's normal mark-up, not less than fifteen (15%) percent, shall
apply to all such disbursements to cover PEDB's administration, overhead
and profit.
15. PROGRESS PAYMENTS AND WITHHOLDING OF PAYMENTS
15.1 PEDB will submit its invoice for payment to NEWCO in accordance with the
payment provisions contained in the Agreement and any schedules to the
Agreement, which invoice will describe the services rendered and the
reimbursable costs incurred during the applicable invoice period. If no
payment provisions are set out elsewhere in the Agreement, invoices will be
submitted on or before the 10th day of each month. NEWCO will make payment
to PEDB within fourteen (14) days after receipt of PEDB's invoice.
15.2 NEWCO shall promptly and no later than 10 days after receipt of an invoice
from PEDB notify PEDB of any dispute over such invoice. However, failure to
notify PEDB in accordance with the foregoing and the making of payment for
such invoice shall not constitute a waiver or an estoppel of any right
NEWCO may have to dispute such invoice if such invoice contains a mistake
readily apparent on its face.
15.3 Thirty (30) days after the earlier of Substantial Performance of the
Agreement and Substantial Performance of the Project as a whole, PEDB will
submit an invoice for final payment ("Final Payment"), which will be in an
amount equal to the sum of the unpaid balance of PEDB's fee or Fixed Fee,
as applicable, plus any amounts previously withheld and the amount of any
unpaid time and reimbursable costs and expenses. NEWCO shall pay PEDB the
Final Payment within 15 days of the date of receipt of such invoice.
15.4 NEWCO may withhold from payments otherwise due to PEDB only such amounts as
are reasonable and which are expressly agreed to between NEWCO and PEDB to
be withheld for work or services still to be performed by PEDB, or which
may be required to secure NEWCO against any liens which reasonable evidence
discloses may be filed by Subconsultants of PEDB against NEWCO.
15.5 If NEWCO fails to pay PEDB any payment when due, or if PEDB has reasonable
grounds for suspecting NEWCO may be unable to make further payments to PEDB
and, if upon request from PEDB NEWCO fails to provide evidence satisfactory
to PEDB, of its financial ability to make further payments to PEDB under
the Agreement, PEDB may, at its option, elect to suspend or terminate the
Agreement, in which case all payments due to PEDB and all compensation and
termination expenses of PEDB will immediately become due, which
compensation and termination expenses shall include, but are not limited
to, the payments specified in section 19 to this Schedule.
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15.6 If NEWCO fails to make payments to PEDB as they become due under the terms
of the Agreement or pursuant to an award by arbitration or court, interest
of 18% compounded annually on such unpaid amounts shall also become due and
payable until payments are brought up to date. Such interest will be
calculated and added to any unpaid monthly invoices. If the preceding
provision contradicts or is unenforceable due to any rule or statutory
provision regarding interest on overdue accounts, the preceding provision
shall be deemed to be amended to provide for and specify a rate of interest
equivalent to the foregoing but expressed in language and on terms that
conforms to such rule or legislation.
16. DAMAGES
16.1 In consideration of the premises and of the provision of the Services by
PEDB to NEWCO under the Agreement, NEWCO agrees that any and all claims
which it has or may have against PEDB, in any way arising out of or related
to PEDB's performance or non-performance of the Agreement (hereinafter
referred to in this Section 16 as "claims" or "claim"), whether such claims
sound in contract, tort or otherwise, shall be absolutely limited to direct
damages only and shall in no circumstance exceed the lesser of:
16.1.1 ten (10%) of the total amount paid to PEDB by NEWCO for the Services
rendered under the Agreement;
16.1.2 the amount of insurance actually available to PEDB to indemnify PEDB
for such damages; or
16.1.3 fifty thousand ($50,000.00) dollars.
In no event shall PEDB be liable to NEWCO for any Consequential
Damages.
16.2 PEDB will not be liable for damages, interest, costs or any other expenses
arising out of the failure of any manufactured product or equipment, or any
manufactured or factory assembled system of components, to perform in
accordance with the manufacturer's specifications, advertising, product
literature or written documentation on which PEDB relied in the performance
of the Services, including but not limited to the preparation of the
design, construction or supplementary documents, Contracts or other
documents.
16.3 PEDB will not be liable for any claim, action or suit arising out of or in
connection with the inappropriate use of the Project by NEWCO or its
agents, employees or Consultants.
16.4 Unless PEDB had actual and express knowledge of deficiencies in the Project
caused by the breaches of contract or negligent acts or omissions of the
Contractor or Suppliers at the time of such breaches of contract or
negligent acts or omissions and then failed to require the Contractor or
Supplier to remedy same, PEDB will not be responsible to NEWCO for any
deficiencies in the Work or for the acts or omissions of the Contractors,
Suppliers or any other persons not employed by or through PEDB, or for the
failure of any of them to carry out the Work in accordance with their
respective Contracts.
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16.5 PEDB will not have control, charge or supervision of, nor responsibility
for, construction means, methods, techniques, sequences, or procedures, all
of which shall be the sole responsibility of the Contractors.
16.6 NEWCO acknowledges, understands and agrees that some design changes and
changes in the Contracts of the Contractors and Suppliers inevitably occur
due to inadvertent errors or omissions caused by schedule constraints,
changes in requirements by NEWCO and authorities having jurisdiction, and
other causes beyond the control of PEDB. NEWCO acknowledges and agrees that
PEDB shall not be liable for any Changes in the Contracts or for any
additional compensation required to be paid to the Contractors or Suppliers
except to the extent that such Changes or additional compensation are
caused solely by the correction of design errors and provided further that
the cost of such corrections exceeds the original fixed, lump sum price for
such Contracts by more than fifteen (15%) percent.
16.7 PEDB's liability for all claims of NEWCO shall absolutely cease to exist
after a period of 12 months from the earlier of the date of:
16.7.1 substantial completion of the Agreement;
16.7.2 Substantial Performance of the Project;
16.7.3 suspension or abandonment of the Project;
16.7.4 termination of PEDB's Services or the Agreement; or
16.7.5 commencement of the limitation period for claims prescribed by any
statute of the province, territory or state of the Place of the Work.
17. INDEMNIFICATION
17.1 Subject to any limitations of liability in the Agreement, PEDB will at its
own cost and expense, including attorney fees, defend, indemnify and hold
harmless NEWCO and its agents and employees from and against the following:
17.1.1 all claims or liens of Subconsultants of PEDB arising out of PEDB's
failure to pay its Subconsultants in accordance with its agreements
with those Subconsultants, provided such failure is not caused by a
failure of NEWCO to make payment to PEDB;
17.1.2 all fines, penalties, assessments or other exactions imposed by any
governmental authority by reason of PEDB's failure to comply with the
Agreement; and
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17.1.3 all claims, damages, losses and expenses, including attorney fees,
arising out of or resulting from the performance of the Agreement,
provided that any such claim, damage, loss or expense:
(a) is attributable to bodily injury, sickness, disease or death, or
to injury or destruction of tangible property (other than some
part of the Project itself); and
(b) is caused solely by, or to the extent it is caused by, any
negligent act or omission of PEDB or any of its officers, agents,
employees, representatives, Subconsultants, or anyone directly or
indirectly employed by any of them.
17.2 NEWCO will at its own cost and expense, such cost and expense to include
attorney fees, defend, indemnify and hold harmless PEDB, its agents and
employees, from and against the following:
17.2.1 all claims or liens of NEWCO's Consultants and Contractors;
17.2.2 all fines, penalties, assessments or other exactions imposed by any
governmental authority by reason of NEWCO's failure to comply with the
Agreement;
17.2.3 all claims, damages, losses and expenses, including attorney fees,
arising out of or resulting from the performance of the Agreement or
the construction of the Project, provided that any such claim, damage,
loss or expense;
(a) is attributable to bodily injury, sickness, disease or death, or
to injury or destruction of tangible property (other than some
part of the Project itself); and
(b) is caused solely by, or to the extent it is caused by, any
negligent act or omission of NEWCO or any of its officers,
agents, employees, representatives, Consultants, Contractors,
Suppliers or anyone directly or indirectly employed by any of
them;
17.2.4 all claims, damages, losses and expenses incurred as a result of a
defect in title or ownership of the lands on which the Project is or
is to be located; and
17.2.5 all claims, damages, losses, expenses, fines, penalties and
assessments, including but not limited to fines, penalties,
assessments and other exactions imposed by any governmental authority
and actual legal fees and disbursements, arising out of, relating to,
resulting from or in any way connected with the actual, potential or
alleged presence, release, escape or discharge of any Hazardous
Substances on, in or under the Site howsoever caused and whether
occurring prior to or after the date of the Agreement. Without
limiting the generality of the foregoing, such indemnity extends to
claims which arise or are alleged to arise out of the actual or
threatened dispersal, discharge, escape, release or saturation
(whether sudden or gradual) of any Hazardous Substances in or into the
atmosphere, or on, upon, in or into any one or more of the surface or
subsurface soils, water, watercourses, persons, objects, structures or
any other tangible matter.
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18. INSURANCE
18.1 Unless otherwise agreed in writing, PEDB shall be responsible for obtaining
and paying for comprehensive general liability insurance in an amount of
not less than $5,000,000 each occurrence for combined bodily injury and
property damage plus property insurance covering the value of property
owned or leased by PEDB. PEDB will also ensure all vehicles used in the
performance of the Services are insured and that vehicles owned by PEDB
have limits of liability for bodily injury and property damage of not less
than $5,000,000.
18.2 The insurance coverages mentioned in section 18.1 will be obtained from
insurance companies licensed to do business in the country where the plant
is located or in such other country as PEDB deems appropriate.
18.3 If PEDB fails to provide or maintain the insurance coverage required to be
provided or maintained by PEDB by the Agreement, then NEWCO may obtain such
insurance and deduct the cost of such insurance from any payments otherwise
due to PEDB under the Agreement.
18.4 Copies of all policies, applicable endorsements and certificates of
insurance will be available for inspection by NEWCO and, upon request, will
be provided to NEWCO.
18.5 NEWCO will purchase Wrap-Up Comprehensive General Liability insurance,
Builders' All-Risk insurance and all other insurance for the Project. NEWCO
shall cause PEDB, its Subconsultants, directors, officers, employees and
agents, to be added as named insureds to such policies, and shall include
cross-liability and waiver of subrogation clauses as necessary to afford
each of the named insureds with the maximum protection and least exposure
possible. Further, to the extent that such insurance duplicates any
insurance required to be provided by PEDB under the Agreement, the
insurance required to be provided by PEDB shall be deemed to be excess
insurance and PEDB, in its discretion, may cancel its policies or parts of
policies so as to avoid such duplicate or excess coverage.
19. TERMINATION
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19.1 If PEDB is adjudged bankrupt, or if it makes a general assignment for the
benefit of its creditors, or if a receiver is appointed on account of its
insolvency, or if it disregards laws, ordinance, rules, regulations or
orders of any authority having jurisdiction in a material way, or subject
to the Agreement is otherwise in breach of a material provision of the
Agreement, then NEWCO may, without prejudice to any right or remedy and
after giving PEDB 90 days written notice, during which period PEDB fails to
cure the violation, terminate the Agreement. If it is not possible to cure
the violation within the 90 days, PEDB will be deemed to have cured the
violation if it commences to cure the violation within those 90 days and
provides NEWCO with a schedule indicating the violation will be cured
within a reasonable time. Termination by NEWCO in accordance with the
foregoing will not affect any rights or remedies NEWCO would otherwise have
under the Agreement or which may otherwise be available to NEWCO at law or
in equity, including the right to recover damages, nor will any such action
relieve PEDB from any consequences or liabilities arising from its acts or
omissions.
19.2 NEWCO may, with or without cause, terminate the Agreement upon 180 days'
prior written notice to PEDB.
19.2.1 In the event of termination of the Agreement with or without cause,
PEDB will be paid:
(a) an amount equal to PEDB's fee earned for all services and work
performed to the date of termination, as well as to such later
date as may reasonably be required by the authorities having
jurisdiction and by professional responsibilities of PEDB to
perform an orderly termination and winding up of the Agreement
and the Project, plus all reimbursable costs reasonably incurred;
and
(b) PEDB's reasonable demobilization costs and expenses, plus any
costs and expenses incurred by PEDB in the cancellation of any
contracts it has with its Subconsultants.
19.2.2 In the event of termination of the Agreement without cause PEDB will
be paid:
(a) an amount equivalent to 15% of PEDB's anticipated average return
per year for a period of two years from the date of Termination
by NEWCO, such anticipated average return to be determined by
agreement between the parties.
19.2.3 After receipt of the payments referred to in Sections 19.2.1 and
19.2.2, PEDB will execute and deliver all such papers and take all
such steps including, if requested, the legal assignment of its
contractual rights, as NEWCO may reasonably require for the purpose of
fully vesting in NEWCO the rights and benefits of PEDB under such
obligations or commitments.
19.3 If NEWCO is adjudged bankrupt, or if it makes a general assignment for the
benefit of its creditors, or if a receiver is appointed on account of its
insolvency, or if it disregards laws, ordinance, rules, regulations or
orders of any authority having jurisdiction, or fails to make payment to
PEDB when due, or is considered by PEDB to be otherwise in breach of a
material provision of the Agreement, then PEDB may, without prejudice to
any right or remedy and after giving NEWCO 90 days written notice, during
which period NEWCO fails to cure the violation, terminate the Agreement. If
it is not possible to cure the violation within the 90 days, NEWCO will be
deemed to have cured the violation if it commences to cure the violation
within those 90 days and provides PEDB with a schedule acceptable to PEDB
indicating the violation will be cured within a reasonable time.
Termination by PEDB will not affect any of the rights or remedies of PEDB
under the Agreement or which may otherwise be available to PEDB at law or
in equity, including the right to recover damages, nor will any such action
relieve NEWCO from any consequences or liabilities arising from its acts or
omissions.
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19.4 In addition to any other right of suspension or termination contained
elsewhere in these General Conditions or the Agreement, PEDB in its sole
discretion may suspend or terminate the Agreement in accordance with the
following:
19.4.1 If NEWCO fails to pay any invoice or account when due, PEDB may
suspend all Services upon 5 days written notice to NEWCO. If NEWCO
fails to make the payment within 7 days after receipt of notice, PEDB,
at is sole option, may elect to immediately terminate the Agreement or
suspend the performance of the Services for such period of time as
PEDB in its discretion may decide;
19.4.2 If NEWCO requests PEDB to provide any part of the Services contrary
to the professional judgment of PEDB or in a manner contrary to the
professional judgment of PEDB or the requirements of any authority
having jurisdiction, PEDB may terminate the Agreement immediately upon
written notice to NEWCO; and
19.4.3 If PEDB encounters a conflict in interest in the performance of the
Services, which cannot be resolved to the satisfaction of PEDB, PEDB
may suspend the Services until such conflict is resolved or may
terminate the Agreement after giving reasonable notice to NEWCO, not
to exceed 30 days.
20. DISPUTE RESOLUTION
20.1 If the parties are unable to resolve, by unanimous agreement, any matter
arising out of or relating to the terms of the Agreement, or their
interpretation, existence, validity, termination or breach, either party
may submit the matter to the president of NEWCO and to the president of
PEDB for a final determination by them.
20.2 Provided that no other party is or may become involved in a dispute with
either or both NEWCO and PEDB related to the subject matter of the dispute,
if the respective presidents of NEWCO and PEDB fail to settle the dispute
referred to them within thirty (30) days following its submittal to them,
all such disputes arising out of or in connection with the Agreement, or in
respect of any defined legal relationship associated therewith or derived
therefrom may, subject to the written agreement of the respective
presidents of TTTI or PEDB, be referred to and finally resolved by
arbitration under the rules of the Arbitration and Mediation Institute of
Canada Inc. or its successor, or if it is no longer in existence then a
suitable arbitration centre located in Ontario, Canada (collectively and
individually the "Arbitration Centre"). The appointing authority will be
the Arbitration Centre and the case will be administered by the Arbitration
Centre in accordance with its procedures for cases under its rules. The
Place of Arbitration will be Toronto, Ontario, Canada.
20.3 The award rendered by the arbitrator(s) will be final and binding and
judgement may be entered upon it in accordance with applicable law in any
court having jurisdiction.
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20.4 If either party becomes involved in litigation with another party which
involves the same disputes or the same factual or legal issues as the
dispute(s) between NEWCO and PEDB, either NEWCO or PEDB may apply to the
arbitrator or a court of competent jurisdiction for a stay of any
arbitration proceedings then in process, and the arbitrator or court may,
if it considers it to be just and convenient to do so, order a stay of the
arbitration pending the outcome of the litigation.
21. INTELLECTUAL PROPERTY
21.1 The following terms used in this Schedule will have the definitions
respectively assigned to them in this Schedule, unless the subject matter
or context otherwise requires:
21.1.1 "NEWCO's Technology" means technology, patent information, trade
secrets, confidential information and know-how of NEWCO which is not
otherwise in the public domain or which is not otherwise known by or
available to PEDB from sources independent of NEWCO and includes, but
is not limited to, the Thermo Master (TM) Technology licensed by TTTI
to NEWCO;
21.1.2 "Improvements" means any improvement to the Technology or NEWCO's
Technology, as applicable, including without limitation any
improvement or further invention whether patentable or not relating to
the Technology or NEWCO's Technology, as applicable;
21.1.3 "Patents" means all patents and patent applications owned by,
registered in the name of or licensed to PEDB, NEWCO or Thermo Tech
which have been filed or issued and which describe and cover various
aspects of the Technology; and
21.1.4 "Technology" means all technology, trade secrets, confidential
information and know-how of PEDB related to the design, manufacture,
supply, installation, commissioning, operation and maintenance of
designed plants, including without limitation: invention disclosures;
patent information; confidential information; technology; trade
secrets; test procedures and results; business, marketing, cost and
product information; processes and process descriptions; plant
designs; operating manuals; engineering data, drawings and
specifications; operating procedures and parameters; raw material
specifications; product specification; quality controls; detailed
process flow sheets and data; samples; drawings; data; techniques;
studies; knowledge of systems; ideas; models; electronically stored
information and all other technical and operational information and
any copyrights related thereto.
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21.2 Save and except NEWCO's Technology, all right, title and interest in and to
the Technology will remain the exclusive property of PEDB and any
Technology disclosed to NEWCO will be held in trust and confidence by NEWCO
on behalf of PEDB. NEWCO will have a permanent non-exclusive royalty-free
license to use any concept, product or process which is patentable, capable
of trademark or otherwise, produced by or resulting from the services
rendered by PEDB in connection with the Project, for the life of the
Project, and for no other purpose or project. NEWCO and PEDB agree that
payment of PEDB's fees and reimbursable expenses by NEWCO pursuant to the
Agreement is a condition precedent to the aforesaid license.
21.3 The parties agree that all Improvements to the Technology, not including
any Improvements to the NEWCO Technology, will be owned by PEDB. NEWCO will
inform PEDB of any Improvements in the Technology, made or obtained by
NEWCO that NEWCO reasonably considers to be important for improved
performance, serviceability or reliability of the Technology. Notice of all
such Improvements shall be provided within 90 days of the introduction of
such Improvements to NEWCO and shall be accompanied by an offer to supply
the Improvement to PEDB free of charge.
21.4 Improvements to NEWCO's Technology will be owned by NEWCO unless the
Improvements were discovered or made solely by PEDB, in which case the
Improvements will be owned by PEDB and NEWCO will have a non-exclusive
royalty-free license to use the Improvement for the Project. PEDB will have
a permanent non-exclusive royalty-free license to use any Improvements to
NEWCO's Technology, including any concept, product or process which is part
of the Improvements to NEWCO's Technology, provided that such Improvements
are developed or contributed to by PEDB during the performance of its
Services.
21.5 The Technology and all Drawings, Specifications, drawings, plans, models,
designs, specifications and other documents prepared by or through PEDB,
are instruments of service for the execution of the Project and as such are
the exclusive property of PEDB, whether the Project be executed or not, and
PEDB reserves the copyright therein and in the Project executed therefrom,
and they are not to be used on any other work or project without the prior
written agreement of and remuneration to PEDB. NEWCO is entitled to a copy
of such documents and specifications as may reasonably be required for
record, operation and maintenance purposes, but only in connection with the
Project.
21.6 PEDB will indemnify and save NEWCO harmless from and defend NEWCO against
any and all loss, cost and damage which NEWCO may hereafter suffer or pay
out by reason of any claims or suits against NEWCO arising out of claims of
infringement of any domestic or foreign patent rights or copyrights, or use
of confidential information by PEDB in performing its obligations
hereunder. PEDB and NEWCO each will advise the other promptly in writing of
any notice of such claim or the commencement of any suit or action based
upon such claim. Upon receipt of such notice, PEDB will undertake the
defence of any such suit, action, or claim, and NEWCO will co-operate with
PEDB in such defence. PEDB will have charge and direction of the defence of
such suit, action or claim, and NEWCO will have the right to be represented
therein by advisory counsel of its own selection and at its own expense.
Neither PEDB nor NEWCO will settle or compromise any suit, action or claim
without the consent of the other party having been first obtained if the
settlement or compromise obliges such other party to make any payment or
part with any property, to assume any obligation or grant any license or
other right, or to be subject to any injunction by reason of such
settlement or compromise.
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21.7 NEWCO will indemnify and save PEDB harmless from and defend PEDB against
any and all loss, cost and damage which PEDB may hereafter suffer or pay
out by reason of any claims or suits against PEDB arising out of claims of
infringement of any domestic or foreign patent rights or copyrights related
to the use of any materials, equipment, products or systems specified,
requested or required by NEWCO to be used in the Project or specified by
PEDB for use in the Project. PEDB and NEWCO each will advise the other
promptly in writing of any notice of such claim or the commencement of any
suit or action based upon such claim. Upon receipt of such notice, NEWCO
will undertake the defence of any such suit, action, or claim, and PEDB
will co-operate with NEWCO in such defence. NEWCO will have charge and
direction of the defence of such suit, action or claim, and PEDB will have
the right to be represented therein by advisory counsel of its own
selection and at its own expense. Neither PEDB nor NEWCO will settle or
compromise any suit, action or claim without the consent of the other party
having been first obtained if the settlement or compromise obliges such
other party to make any payment or part with any property, to assume any
obligation or grant any license or other right, or to be subject to any
injunction by reason of such settlement or compromise.
CONFIDENTIALITY
21.8 NEWCO will not use, manipulate or exploit any Technology, except in strict
accordance with the Project and the terms of the Agreement, nor disclose
any Technology to any person who does not strictly require the Technology
for the purpose of the Project, and then only to such employees, officers,
directors, or representatives of NEWCO as may be reasonably necessary for
the construction, operation and maintenance of the Project, provided that
NEWCO has first obtained agreements with such employees, officers,
directors and representatives to maintain the confidentiality of the
Technology.
21.9 NEWCO covenants and agrees:
21.9.1 To use its best efforts to protect PEDB's commercial interest in the
Technology and to keep all Technology disclosed to it confidential,
using a standard of care no less than the degree of care that a
careful and prudent person would be expected to employ for its own
similar business and confidential information;
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21.9.2 to be liable to PEDB for compliance with the terms and conditions of
this General Condition by those employees, consultants, agents,
officers, directors or other representatives of NEWCO to whom any
Technology is disclosed; and
21.9.3 to require all Consultants of NEWCO and all employees, officers,
directors and agents of NEWCO and its Consultants to agree not to
compete with PEDB in the provision of any of the Services by PEDB to
others, or to assist any other party in competing with PEDB by using
and/or revealing some or all of the Technology, provided, however,
that the foregoing is not intended to limit NEWCO's or Consultants'
right to seek employment or otherwise engage in activities in the
fields of the design, manufacture, supply, construction or
commissioning of oriented strand board plants if such employment or
activities do not involve use of the Technology of PEDB in any way,
manner or form whatsoever.
21.10Due to the commercially valuable and proprietary nature of the Technology
to PEDB and the commercial and trade relationship of the Technology to the
nature of PEDB's business operations and potential commercial
opportunities, and due to the limited and restricted market for the
Technology, the obligations of confidentiality assumed by NEWCO hereunder
will apply throughout both North America and all countries in which any
part of the Services are performed, for a period of five (5) years from the
date the Agreement has been completed and will survive any termination
hereof for any reason whatsoever. NEWCO acknowledges and agrees that the
foregoing limitations on NEWCO's confidentiality obligations are entirely
reasonable and necessary in order to protect the legitimate commercial,
trade, business and technical interests of PEDB.
21.11If, prior to disclosure of any part of NEWCO's Technology to PEDB, NEWCO
instructs PEDB in writing to keep and maintain that part of NEWCO's
Technology in confidence, then PEDB shall not disclose that part of NEWCO's
Technology to any person who does not strictly require it for the Project,
and then only to such employees, Subconsultants, officers, directors, or
representatives of PEDB as may be reasonably necessary for the provision by
PEDB of the Services.
21.12PEDB will not, without the prior agreement of NEWCO, divulge information
concerning NEWCO and this Project to anyone except as may be required by
the terms of the Agreement for the proper performance by PEDB of its
Services or by compulsion of law. PEDB will obtain a similar agreement from
its Subconsultants. This requirement will survive the termination of the
Agreement.
21.13The confidentiality obligations of the parties under the Agreement will
not apply to that part of the Technology or to NEWCO's Technology:
21.13.1 which, at the time of disclosure, is within the public domain, or
which, after disclosure by one of the parties to the other, becomes
readily and lawfully available to the industry or the public, other
than by a breach of the Agreement;
21.13.2 which was independently developed by the party, other than by a
breach of the Agreement; and
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21.13.3 which the party is by law compelled to disclose, provided that the
party has forthwith notified the other of any such compelled
disclosure.
22. HAZARDOUS SUBSTANCES
22.1 At no time shall title to any Hazardous Substances pass or be transferred
to PEDB and the Agreement shall not be interpreted in any manner that makes
PEDB a "generator", "transporter", or "treatment, storage or disposal
facility" under any provincial, federal or state law or provision of any
authority having jurisdiction.
22.2 In no event shall PEDB be liable for the actual, potential or alleged
presence, release, escape or discharge of any Hazardous Substances on, in
or under the Site howsoever caused and whether occurring prior to or after
the date of the Agreement, including but not limited to any actual or
threatened dispersal, discharge, escape, release or saturation (whether
sudden or gradual) of any Hazardous Substances in or into the atmosphere,
or on, upon, in or into any one or more of the surface or subsurface soils,
water, watercourses, persons, objects, structures or any other tangible
matter, or any damages resulting therefrom, and no provision of the
Agreement shall impose any such liability on PEDB unless such provision
specifically makes express refers to this clause by its General Condition
and clause number and further expressly states that this provision does not
apply.
22.3 If the Services include the provision or use on Site of any nuclear
materials or substances, or any measuring, testing or other equipment
containing any nuclear materials or substances (all of the foregoing
referred to herein as "Nuclear Materials"):
22.3.1 PEDB shall not be responsible for any delays to either the Schedule
for Engineering or the Project Schedule related to delays in obtaining
permits and approvals for the transportation, delivery or use of any
Nuclear Materials;
22.3.2 NEWCO shall be responsible for obtaining all permits for the
transportation, delivery and use of any Nuclear Materials from all
authorities having jurisdiction;
22.3.3 NEWCO represents, acknowledges and agrees that it is aware of all
potential difficulties and problems associated with the
transportation, storage and use of the Nuclear Materials and that
NEWCO shall provide adequate and safe storage for such Nuclear
Materials on Site and shall provide sufficient training of its
personnel in the proper and safe storage, transportation and use of
such Nuclear Materials; and
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22.3.4 NEWCO will be responsible for all additional costs and expenses
associated with the provision, transportation, storage, training and
use of the Nuclear Materials.
23. SAFETY AND WORKERS COMPENSATION
23.1 In addition to complying with the safety rules and regulations of all
authorities having jurisdiction, PEDB will comply with internal safety
rules and regulations of NEWCO governing the conduct or welfare of all
persons on the Site and provided to PEDB by NEWCO prior to the execution of
the Agreement.
23.2 PEDB and NEWCO will comply with the workers' compensation legislation in
the jurisdiction in which the Site is located. Upon request from either
party, the other party will provide evidence of any required registration
by that party in accordance with such legislation and, in addition,
evidence of compliance by that party with any requirements to make payments
and assessments pursuant to such legislation.
23.3 NEWCO will comply with the requirements of the law of the jurisdiction in
which the Plant is to be located with regard to the system for the
labelling and warning of Hazardous Substances used in the workplace for all
Hazardous Substances brought onto, or existing at, the workplace, other
than those brought onto the workplace by PEDB. NEWCO shall provide proper
and sufficient training of all personnel of PEDB with regard to handling,
storage and use of Hazardous Substances existing on Site or brought onto
the workplace by anyone other than PEDB and, unless the costs of such
training are expressly specified to be included in the Fixed Fee or any
other lump sum compensation under the Agreement, such costs shall
constitute an additional service for which PEDB shall be entitled to be
paid additional compensation based on the charge out rates specified in the
Agreement for personnel and disbursements or, if no such rates are
specified, then based on the rates normally charged by PEDB for such
personnel and disbursements.
23.4 PEDB will comply with the requirements of the applicable authorities having
jurisdiction with regard to any Hazardous Substances brought onto the
workplace by PEDB.
24. COMPLIANCE WITH APPLICABLE LAWS
24.1 If either party determines or discovers that any of the provisions of the
Agreement or the Contracts are at variance in any respect with any
applicable law or requirement of any authority having jurisdiction, it will
promptly notify the other in writing.
25. WAIVER
25.1 No failure or delay on the part of any party in exercising any power or
right under this Agreement will operate as a waiver of such power or right.
No single or partial exercise of any right or power under this Agreement
will preclude any further or other exercise of such right or power. No
modification or waiver of any provision of this Agreement and no consent to
any departure by any party from any provision of this Agreement will be
effective until the same is in writing. Any such waiver or consent will be
effective only in the specific instance and for the specific purpose for
which it was given. No notice to or demand on any party in any
circumstances will entitle such party to any other or further notice or
demand in similar or other circumstances.
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26. INDEPENDENT CONTRACTOR
26.1 PEDB and NEWCO are independent contractors, maintaining independent control
over their respective employees and operations. Neither party, nor anyone
employed directly or indirectly by either of them, shall be deemed to be a
servant, employee or agent of the other party.
27. LAW AND LANGUAGE OF THE CONTRACT
27.1 The Agreement and the obligations of the parties under the Agreement shall
be interpreted, construed and enforced in accordance with the laws of the
Province of Ontario, Canada and the parties irrevocably attorn to the
jurisdiction of the courts of Ontario, Canada.
27.2 The Agreement is drawn in English at the request of all parties.
28. SUCCESSION
28.1 The Agreement shall enure to the benefit of and be binding upon the parties
and their respective successors and permitted assigns.
29. ASSIGNMENT
29.1 Neither party may assign this Agreement without the prior consent in
writing of the other.
30. SEVERABILITY
30.1 If one or more provisions of the Agreement are for any reason held to be
illegal, invalid or unenforceable, then such invalidity, illegality or
unenforceability shall not affect any other provision thereof, and the
Agreement shall be construed and enforced as if such invalid, illegal or
unenforceable provision or provisions had never been contained therein.
31. ENTIRE CONTRACT
31.1 The Agreement constitutes the entire agreement and understanding between
the parties and cancels and supersedes all prior proposals, agreements,
understandings, representations, conditions, warranties, negotiations,
discussions and communications, whether oral or written, statutory or
otherwise, and whether express or implied, between the parties with respect
to the subject matter of the Agreement, save and except to the extent as
expressly incorporated in writing into the Agreement. The Agreement may
only be amended by instrument signed by all parties to the Agreement.
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31.2 Headings and captions used in the Agreement are inserted for convenience of
reference only and in no way define, limit or describe the scope or the
intent of the Agreement or any part thereof.
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SCHEDULE 4
SPECIAL CONDITIONS
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SCHEDULE 5
PROJECT SCHEDULE
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SCHEDULE 6
DRAWINGS
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