ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT This ENGINEERING

177 Pages·2015·6.91 MB·English

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT
This ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT effective as
of the .iay of ' ' . .. vthe "Effective Date"), is made by and between NEW YORK
STATE ELECTRIC & GAS CORPORATION, a corporation organized and existing under the
laws of the State of New York, having a principal place of business at 18 Link Drive,
Binghamton, NY 13904 (the "Owner") and a corporation organized and existing
under the laws of the State of 'having a principal place of business at *
.! ; he "Contractor," and the Owner, individually, a "Party," and,
together, the "Parties"). Terms beginning with capital letters have the meanings ascribed to them
herein and in the GeneralGonditions (set forth in Exhibit A).
Witnesseth, that the Owner and the Contractor, for the consideration hereinafter named,
agree as follows:
ARTICLE 1. WORKTOBEDONE
a) The Contractor shall provide all engineering, procurement, construction, final testing and
commissioning for the installation and connection of one (1) complete and operational
series capacitor bank at the Eraser Substation for the 345 kV Eraser-Coopers Corner line
compensation (the "Project"), in accordance with the specifications set forth in Exhibit C
attached hereto and made a part hereof (the "Specifications"), including any work
reasonably inferable therefrom, implicit therein, or otherwise necessary to achieve final
Completion (the "Work"). The Work shall include, without limitation, the design,
manufacturing, delivery, civil works, erection, installation, and field verification for the
Project, as well as the Materials, plant, tools, skill and labor of every kind required. The
..Work shall be performed, by the Contractor, free from errors, omissions, defects and
deficiencies with respect to the engineering Work, and in a good and workmanlike
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manner with respect to the construction Work, all in accordance with Industry Standards,
and in strict accordance with this Agreement, the General Conditions attached hereto and
made a part hereof as Exhibit A, Supplementary Conditions attached hereto and made a part
hereof as Exhibit B, Plans/Drawings and Specifications, all of which, together with this
Agreement, the exhibits hereto and the other Contract Documents (as defined herein), form
the Contract. The Contractor shall do everything required by the Contract (including,
without limitation, the Contract Documents),
b) Notwithstanding the foregoing, the Contractor shall engage the following professional
engineer, duly licensed, and authorized to offer engineering services, in the State of New
York to perform all engineering services required as a part of the Work:
Director of Engineering
ARTICLE 2. DOCUMENTS FORMING THE CONTRACT
The Contract shall be deemed to include: (i) this Agreement and the exhibits hereto; (ii) any bond
or bonds required pursuant to this Agreement; (iii) the General Conditions and Supplementary
Conditions; (iii) the Plans/Drawings and Specifications (including to the extent of such reference
only, any standard specifications referred to therein); (iv) all written change orders signed by the
Owner and the Contractor and change directives issued by the Owner; and (v) all terms and
conditions required by law to be inserted into the Contract whether actually inserted or not
(collectively, the "Contract Documents'').
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ARTICLE 3. ORDER OF PRECEDENCE AND DETERMINATION AS TO
VARIANCES
Subject to GC-2 of the General Conditions, in the event of a conflict or ambiguity among the
Contract Documents, or in any of them, the interpretation of the Contract shall be made in
accordance with the following order of precedence:
(i) Amendments or other modifications to the Contract (including Change
Orders) duly signed and issued after the Effective Date, with those of a
later date having precedence over those of an earlier date;
(ii) the Contract; and,
(iii) this Agreement and the exhibits hereto, with Exhibit C taking precedence
over all other exhibits with respect to technical matters.
In the event of conflict or ambiguity among documents or exhibits of the same level of
precedence, the document or exhibit containing the more stringent requirement shall govern and
control. In the event that the Contractor discovers a conflict or ambiguity among the Contract
Documents or in any of them, the Contractor shall immediately notify the Owner of such conflict or
ambiguity, in writing, and the Owner shall resolve such conflict or ambiguity in accordance with
this provision, and transmit such resolution to the Contractor in writing. The Owner's resolution of
any such conflict or ambiguity shall be final and conclusive upon the Parties. This Article shall
survive the completion or earlier termination of this Agreement.
ARTICLE 4. EXAMINATION OF DOCUMENTS AND SITE
a) The Contractor agrees that it has carefully examined the Contract Documents, together with
the Site, as well as its surrounding territory, and it has inquired into and obtained all
necessaiy data as to the existing and presently planned access highways, railroad, water and
air transportation facilities, and is hilly infonned regarding all of the conditions affecting the
Work to be done and labor and Materials to be furnished for the completion of the Contract,
and that its information was secured by personal investigation and research and not from the
estimates or records of the Owner. It further agrees that it will make no claim against the
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Owner by reason of estimates, tests or representations of any officer, employee or agent of
the Owner or because of unavailability or difficulties in transportation facilities, including
seasonal posting of roads, and seasonal weather variations and fluctuations from normal nor
shall such unavailability or difficulty of any particular form or mode of transportation be the
basis for any extension of the Contract Time for completion of the Work or claim for
damages.
b) The Contractor shall pay for all utilities required for the construction of the Project at the
Site.
ARTICLE 5. ADMINISTRATION: AUTHORIZATION TO CHANGE
CONTRACT
The Contract will be administered by the Engineer, whose name and address are set forth in the
paragraph entitled "Contract Administration" in the Supplementary Conditions, and all
correspondence in connection herewith shall be directed to the Engineer.
Notwithstanding the foregoing, neither the Engineer nor any officer, employee, agent or other
representative thereof has any authority to add, delete, change, or otherwise modify the Contract,
including, without limitation, any of its terms. Amendments and other modifications and changes to
the Contract can be made only in writing executed by Contractor and the Owner or one authorized
by it in writing to do so on its behalf. This is not to mean that the Engineer cannot exercise
judgment hereunder, in the circumstances in which other terms of the Contract Documents provide
for such exercise of judgment.
ARTICLE 6. COMMENCEMENT, PROSECUTION AND COMPLETION
a) The Contractor further agrees that it will begin the Work on the Date of Commencement
set forth in the Notice to Proceed to be delivered to the Contractor by the Owner, and
shall prosecute the Work with such diligence as to achieve Substantial Completion of the
Work within the Contract Time, as may be amended by mutual agreement of the Parties.
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b) TIME IS OF THE ESSENCE IN THE PERFORMANCE OF THE CONTRACT and the
Work shall be prosecuted in such a manner and with sufficient plant and forces to achieve
Substantial Completion (as herein defined) of the Project within the Contract Time;
however, the Owner shall only terminate this Agreement in accordance with the
tennination provisions set forth in Article 15. The Contractor shall perform the work in
accordance with the schedule attached hereto and made a part hereof as Exhibit E (the
"Schedule"). In the event that the Owner reasonably believes that the Contractor will not
achieve Substantial Completion within the Contract Time, the Owner shall notify the
Contractor in writing, and the Contractor shall, within f: calendar days
following the date of receipt of such notice, promptly provide a recovery plan to the
Owner, in form and content reasonably acceptable to the Owner, reflecting any changes
in scheduling that have occurred, or that will occur, in for the Contractor to achieve
Substantial Completion within the Contract Time, which shall include, at a minimum, the
methods of expediting the performance of the Work and the manpower, work shifts and
supervision anticipated (a "Preliminary Recovery Plan"). The Owner shall review the
Preliminary Recovery Plan, and either approve or reject the Preliminary Recovery Plan,
and delivery the Preliminary Recovery Plan to the Contractor with its approval or its
comments. Upon the delivery by the Owner to the Contractor of a Preliminary Recovery
Plan approved, in writing, by the Owner (a "Recovery Plan"), the Contractor shall be
required to satisfy the terms of the Recovery Plan, and shall immediately implement such
Recovery Plan following. All costs incurred when implementing a Recovery Plan shall be
the sole responsibility of the Contractor and the Contractor shall not be entitled to a
Change Order or any increase in the Contract Price in connection with such Recovery
Plan.
c) The Contractor shall deliver to the Owner, for its review and comment, any and all
Contractor Deliverables set forth in the Contractor Deliverables Table. All Contractor
Deliverables that the Contractor delivers to the Owner shall be in accordance with the
Contract. Insofar as any Applicable Law requires this, the Contractor Deliverables shall
be signed, as the case may be, by a responsible professional that has the professional
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informational nature, so as to opportunely maintain the Owner well-informed with regard
to the progress of the engineering, design and development of the Contractor
Deliverables.
g) The Owner shall be entitled to inspect, at any time it deems advisable, all Contractor
Deliverables and any other part of the Work. The Contractor shall keep at the Site a Rill
set of the documents that constitute a part of the Contract, any Change Orders, the
Applicable Permits, the Contractor Deliverables, any communications between the
Owner or the Engineer, and the Contractor or any of its agents or representatives, and any
document that may be required by Applicable Laws.
h) The Contractor shall be liable for any cost which the Contractor incurs as the result of
any mistake, error, defect, discrepancy or omission in the Contractor Deliverables, or in
any information prepared by it or by third parties on its behalf, whether the Owner has
reviewed or approved them or not including the costs incurred by the Contractor to
remedy those mistakes, errors, defects, discrepancies or omissions or the delay in the
performance of the Work that it may have caused.
i) When the Contractor believes that it has satisfied the conditions for Mechanical
Completion, the Contractor shall deliver to the Owner a notice of Mechanical Completion
in the form set forth in Exhibit F (the "Notice of Mechanical Completion"). The Owner
shall, within ' .. Business Days after receipt of such Notice of Mechanical
Completion: (i) issue a certificate of Mechanical Completion to the Contractor, setting
forth the Mechanical Completion Date in the form set forth in Exhibit G (the "Certificate
of Mechanical Completion"), or (ii) reject such Notice of Mechanical Completion, in
writing, setting forth the reasons for such rejection, in which case, the Contractor shall
take the appropriate corrective action. Upon the completion of such corrective action, the
Contractor shall deliver to the Owner a new Notice of Mechanical Completion. This
process shall be repeated on an iterative basis until the Owner accepts the Notice of
Mechanieal Completion and issues a Certificate of Mechanical Completion. The
"Mechanical Completion Date" shall be the date on which the last of the conditions for
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achieving Mechanical Completion was satisfied, or, in the sole discretion of the Owner,
waived.
j) Following the Mechanical Completion Date, the Contractor shall perform the Tests and
the commissioning for the Project.
k) When the Contractor believes that a finalized punchlist containing only Non-critical
Deficiencies in the Work is ready for the Owner to review and approve, the Contractor
and the Owner shall perform an inspection of the Work and confer together at the Site as
to the items which should be included in the finalized punchlist. The Contractor shall
then create a new punchlist to reflect the result of such inspection and conferral and
deliver same to the Owner for its review and approval (the "Proposed Punchlist"), setting
forth all Work remaining to be completed after the Substantial Completion Date. Such
Proposed Punchlist shall include only Non-critical Deficiencies in the Work and shall
include a Punchlist Amount for the completion or repair of each Non-critical Deficiency.
The Owner shall approve the Proposed Punchlist or deliver any changes to the Proposed
Punchlist to the Contractor within is Days after the Contractor's delivery
to the Owner of such Proposed Punchlist. This process shall be repeated on an iterative
basis until the Owner approves the Proposed Punchlist. The Proposed Punchlist that is
ultimately approved by the Owner shall be the "Punchlist."
I) When the Contractor believes that it has satisfied the conditions for Substantial
Completion, the Contractor shall deliver to the Owner a notice of Substantial Completion
in the form set forth in Exhibit H (the "Notice of Substantial Completion"). The Owner
shall, within Business Days after receipt of such Notice of Substantial
Completion: (i) issue a certificate of Substantial Completion to the Contractor, setting
forth the Substantial Completion Date, in the form set forth in Exhibit 1 (the "Certificate
of Substantial Completion"), or (ii) reject such Notice of Substantial Completion, in
writing, setting forth the reasons for such rejection, in which case, the Contractor shall
take the appropriate corrective action. Upon the completion of such corrective action, the
Contractor shall deliver to the Owner a new Notice of Substantial Completion. This
process shall be repeated on an iterative basis until the Owner accepts the Notice of
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WORK AND ALL OF THE CONTRACTOR'S CLAIMS FOR DAMAGES SHALL BE
DEEMED WAIVED AND NO RIGHT TO RECOVER ON ANY SUCH CLAIMS
SHALL EXIST.
c) Not Used.
d) Pending and subsequent to a final decision by the Owner, which shall be final and binding
on both Parties, with respect to any such disputed matter, the Contractor shall proceed
diligently with the performance of the Contract and in accordance with all instmctions.
e) This Article shall survive the completion or earlier termination of this Agreement.
ARTICLE 11. NOT USED.
ARTICLE 12. UNCONTROLLABLE FORCES
The Contractor shall not be liable for loss or damage due to delay in achieving Substantial
Completion resulting from uncontrollable forces, the term "Uncontrollable Forces" being deemed,
for the purpose of the Contract, to mean any cause beyond the reasonable control of the Contractor,
including but not limited to, flood, earthquake, storm, lightning, fire, epidemic, war, riot, civil
disturbance, sabotage or restraint by court or public authority, which by exercise of due diligence
and foresight, the Contractor could not reasonably have been expected to avoid, and the effects of
which the Contractor has exercised commercially reasonable efforts to mitigate. If the Contractor is
rendered unable to fulfill any obligations by reason of Uncontrollable Forces, it shall so notify the
Owner in writing, and shall exercise clue diligence to remove such inability with all reasonable
dispatch. ANY DELAY RESULTING FROM SUCH UNCONTROLLABLE FORCES SHALL
NOT GIVE THE CONTRACTOR ANY CLAIM FOR AN ADJUSTMENT TO THE
CONTRACT PRICE. THE AMOUNT OF TIME REASONABLY NECESSARY TO
COMPLETE THE WORK SHALL EXTEND THE CONTRACT TIME CORRESPONDINGLY,
SUBJECT TO THE MUTUAL AGREEMENT OF THE PARTIES, WHICH EXTENSION OF
THE CONTRACT TIME SHALL BE THE CONTRACTOR'S SOLE REMEDY IN RESPECT OF
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SUCH UNCONTROLLABLE FORCES, AND SHALL NOT EXCEED THE DURATION OF
THE DIRECT EFFECTS OF THE UNCONTROLLABLE FORCES WHICH GIVING RISE TO
SUCH CLAIM. Demonstrations, protests, labor walk-offs or slow-downs (except for labor walk-
offs or slow-downs that are national in scope), acts of vandalism, minor thefts, minor Fires and
normally occurring seasonal climatic variations such as, but not limited to, rain, freezing, thawing,
or snowfall, shall not be considered Uncontrollable Forces. This Article shall survive the
completion or earlier termination of this Agreement.
ARTICLE 13. NO DAMAGES FOR DELAY; OWNER-CAUSED DELAY
a) EXCEPT IN THE EVENT OF AN OWNER-CAUSED DELAY, THE CONTRACTOR
AGREES TO MAKE NO MONETARY CLAIM FOR DELAYS, INTERFERENCES
OR HINDRANCES OF ANY KIND IN THE PERFORMANCE OF THE CONTRACT
OCCASIONED BY ANY ACT OR OMISSION OF THE OWNER OR ANY OF ITS
REPRESENTATIVES, AND AGREES THAT ANY SUCH CLAIM SHALL BE
FULLY COMPENSATED BY AN EXTENSION OF THE CONTRACT TIME TO
COMPLETE PERFORMANCE OF THE WORK.
b) The Contractor shall cooperate with the Owner's other contractors and shall coordinate
and schedule the performance of the Work with the work of such other contractors, and
the Contractor shall share access to and use of the Site to reasonably accommodate the
work of the Owner's other contractors. The Owner shall provide, in each of its contracts
with other contractors, au obligation to coordinate and schedule the performance of their
work with the Work of the Contractor, and to share access to, and use of, the Site to
reasonably accommodate the Work of the Contractor. Should the Contractor sustain any
damage through any act or omission of any other Owner's contractor having a contract
with the Owner for the performance of work upon the Site, or of work which may be
necessary to be performed hereunder, or through any act or omission of a subcontractor
of such other Owner's contractor, the Contractor shall have no claim against the Owner
for such damage; provided however, nothing contained in this sentence shall be deemed a
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waiver of Contractor's rights to the extent that Owner's negligence is the cause of the
damage.
In the event that the Contractor claims that an Owner-Caused Delay has occurred, the
Contractor shall provide a notice to the Owner promptly after the occurrence of such
alleged Owner-Caused Delay, and in no event more than ^ * business Days after the
Contractor first becomes aware of the occurrence giving rise to such Owner-Caused
Delay. As soon as practicable, but in no event more than r days after delivery
of such notice, the Contractor shall provide the Owner with a notice describing the
particulars of the occurrence known to the Contractor, with respect to such Owner-
Caused Delay, including an estimation of its expected duration and probable impact upon
the critical path of the Construction Schedule and documentation substantiating the
impact upon the critical path of the Construction Schedule, and substantiating
documentation of the direct costs incurred by the Contractor as a result of such Owner-
Caused Delay. In the event of an Owner-Caused Delay, the Contractor shall be entitled
to a Change Order if the Contractor can demonstrate and substantiate an adverse impact
to the critical path of the Construction Schedule, and that the Contractor incurred costs
proximately caused by such Owner-Caused Delay, which would not have otherwise been
incurred by tlie Contractor in the performance of the Work. If the Contractor fails to
provide the original notice as set forth in this Article 13c) within the required time period
set forth therefor, then the Contractor shall waive the right to make a claim for an Owner-
Caused Delay. The Contractor's exclusive remedy for an Owner-Caused Delay shall be
limited to an adjustment to the Construction Schedule, on the basis of the demonstrable
impact of the Owner-Caused Delay upon the critical path of the Construction Schedule,
as well as an adjustment to the Contract Price in the amount of the substantiated and
documented direct costs proximately caused by such Owner-Caused Delay; provided
however, the Contractor shall not be entitled to any such remedy to the extent the impact
of the Owner-Caused Delay was exacerbated as a result of Contractor not taking
commercially reasonable efforts (excluding incurring out-of-pocket expenses) to limit the
duration and cost arising from such Owner-Caused Delay. In the event of an Owner-