CONTRACT FOR LABOR AND MATERIAL

Transcription

1 Contractor's Federal Identification No. CONTRACT FOR LABOR AND MATERIAL This Contract is made as of, by and between CONSUMERS ENERGY COMPANY, a Michigan corporation, One Energy Plaza, Jackson, Michigan ("Owner") and,, ("Contractor"). In consideration of the mutual promises herein, the Owner and Contractor agree as follows: 1. SCOPE OF WORK The Contractor shall perform the work described in Exhibit A attached to and made a part of this Contract. Unless otherwise provided in this Contract, the Contractor shall furnish everything necessary to complete the work including, but not limited to, all supervision, labor, tools, materials, supplies, services, facilities, equipment and transportation. The Contractor shall perform all of the work in a good, substantial and workmanlike manner. 2. TERM OF CONTRACT The work to be performed under this Contract shall commence on or about, and shall be completed on or before. 3. CONTRACT PRICE The Owner shall pay the Contractor and the Contractor shall accept as full compensation, satisfaction and payment for the work and any and all direct or indirect costs or expenses incurred by the Contractor in connection with the work including, but not limited to, the cost of supervision, labor, tools, materials, supplies, services, facilities, equipment, transportation, insurance, taxes, overhead and profit, ($ ). 4. PAYMENTS Unless all work hereunder is to be performed within thirty (30) days, the Contractor shall submit an invoice to the Owner at the end of each calendar month, itemized to the Owner's satisfaction, for the portion of the work completed during such month, together with the amount due. Within forty-five (45) days after receipt of a satisfactory partial invoice and approval thereof by the Owner, payment of such partial invoice shall be made to the Contractor. Payment of such partial invoice by the Owner shall not constitute acceptance of the work and shall be subject to correction in the payment of any subsequent invoice. If the entire work is to be performed within thirty (30) days, no invoice shall be submitted until all work has been completed. Upon completion of the entire work covered by this Contract to the satisfaction of the Owner, as evidenced by a written acceptance signed by the Owner's Contract Administrator or other duly authorized representative, the Contractor shall present its final invoice, itemized to the Owner's satisfaction. Within forty-five (45) days following receipt of such final invoice and supporting data and approval thereof by the Owner, payment of such final invoice, including any amounts withheld under partial invoices, shall be made to the Contractor as complete payment thereof, subject to Section 5, "Withholding Payment." If the total contract price is at least $100,000.00, the Contractor shall submit a Sworn Statement drawn and executed in accordance with the Construction Lien Act of the State of Michigan showing that all bills for materials, labor and other indebtedness connected with the work have been paid in full. With each invoice where the Contractor's compensation is based on cost or time worked, the Contractor shall submit the vendor's original invoices for all materials with a cost greater than $25, and certified copies of time sheets and/or payrolls. Credit shall be given to the Owner for any discounts received by the Contractor on material invoices. If checked, all payments under this Contract shall be made by Owner to Contractor pursuant to the Vendor Payment, Financial EDI Transactions Attachment, CSS Form WITHHOLDING PAYMENT Notwithstanding any provisions in this Contract to the contrary, the Owner may withhold payment for work done to the extent of protecting itself against loss on account of: (a) Defective work not remedied. CSS Form /2008 Page 1

2 (b) Claims filed or reasonable evidence indicating probable filing of claims. (c) Failure of Contractor to make payments promptly to subcontractors or for materials or labor. (d) Damages to structures or properties. 6. CHANGES IN THE WORK AND EXTRA WORK The Owner may, at any time, without invalidating this Contract, make changes in, add to or delete from the work to be performed hereunder. No such changes shall be made and no claims for extra work shall be valid except as authorized by written order signed by the Owner. 7. INDEPENDENT CONTRACTOR This Contract shall constitute the Contractor an independent contractor. The Contractor shall do such work with and according to its own equipment, means and methods, which shall belong to and be and remain in the exclusive charge and control of the Contractor, and which shall not be subject to any control or supervision by the Owner. The Owner does not hereby hire or rent the use of the same or assume any liability for the use or method of use thereof. The Owner is interested only in the results of the work. 8. PERMITS AND LAWS Unless otherwise provided in this Contract, the Contractor shall secure all licenses or permits required by law and shall comply with all applicable ordinances, laws, orders, rules and regulations pertaining to the work hereunder made by any governmental authority or public regulatory body. If requested by the Owner, the Contractor will provide the Owner with copies of "I-9" forms required by the Immigration Reform and Control Act of 1986 (8 USC 1324A), including any amendments thereto, for each of the Contractor's employees performing work pursuant to this Contract. The provisions of (a) Subpart A, Section (a), paragraphs (1)-(7) of Title 41 CFR, as amended, (b) Subpart A, Section , paragraphs (a)-(f) of Title 41 CFR, as amended, and (c) Subpart A, Section , paragraphs (a)-(f) of Title 41 CFR, as amended, are incorporated in this contract by reference. 9. INDEMNITY The Contractor shall assume all responsibility for and shall indemnify and save the Owner, its officers, agents and employees harmless from and against all losses, liabilities, claims, demands, payments, actions, legal proceedings, recoveries, costs, expenses, fines, attorney fees, settlements, judgments, orders and decrees of every nature and description brought or recovered against, or incurred by, the Contractor, the Owner, the Owner's officers, agents or employees, or any or all of them, by reason of any: (a) injury to persons, including death or damages, sustained or claimed by the Contractor's employees, the employees of the Owner, or by any other person, and for any theft or loss of or damage to property (including environmental harm), including property of the Contractor, the Owner, or any other person, which may occur or allegedly occur because of or result from, or in any manner are connected with or arise from, (i) any action or operation under this Contract, (ii) the work which is the subject of this Contract, or (iii) any breach of any obligation of the Contractor under this Contract; (b) infringement or alleged infringement of any patent, copyright, trademark or other proprietary right by any material, machinery, device, equipment, process or design furnished or used by the Contractor in the performance of this Contract; and (c) breach of any other duty or obligation of the Contractor under this Contract. Notwithstanding the foregoing, the Contractor shall not be required to indemnify the Owner, its officers, agents or employees against liability for damages arising out of injury to persons or theft or loss of or damage to property caused by or resulting from the sole negligence of the Owner, its officers, agents or employees. Without limiting the foregoing, the Contractor shall at the request of the Owner defend at the Contractor's expense any suit or proceeding brought against the Owner for any of the above-named reasons. The provisions of this Section 9 shall survive the termination or expiration of this Contract. 10. WARRANTY Unless otherwise provided in this Contract, the Contractor hereby warrants that all work performed and materials furnished hereunder shall conform to the requirements of this Contract and be free from defects for a period of one (1) year from and after the Owner's final acceptance of all work performed hereunder (the "Warranty Period"). Without limiting any other remedy available to the Owner, if any such nonconformance or defect appears during CSS Form /2008 Page 2

3 the Warranty Period, the Contractor shall make any and all repairs or replacements necessary to remedy same at its sole expense and within a reasonable time after notification by the Owner. The foregoing warranty shall also apply to all work performed pursuant to the foregoing warranty with the Warranty Period for the repair or replacement work commencing on the Owner's final acceptance of the repair or replacement work. 11. CHANGES TO AGREEMENT - ASSIGNMENT AND SUBCONTRACTING The terms of this Contract shall not be changed, superseded or supplemented except in writing signed by the Contractor and the Owner. This Contract shall not be assigned or any part thereof subcontracted by the Contractor without the Owner's prior written consent. Any attempted assignment without such written consent shall be void and the Owner may refuse to permit the performance of any unauthorized subcontract. In case any such subcontracting is approved, the subcontract shall be in writing; shall be fully executed prior to the commencement of the work involved; and shall specify that the provisions of the subcontract shall be subject to, and the subcontractor shall comply in every respect with the provisions of this Contract, except that the attached insurance requirements may be superseded by other insurance requirements as approved by the Owner and as stated in such approval. If required by the Owner to do so, the Contractor shall promptly furnish the Owner with copies of each executed subcontract. The Contractor shall assume as full responsibility to the Owner for the actions, omissions, operations and work of the Contractor's subcontractors of every tier as for the actions, omissions, operations and work of the Contractor. 12. AUDITING OF CONTRACTOR'S ACCOUNTS AND REFUNDS The Contractor shall make and keep as the same accrue, complete records and books of account of its costs, expenses, man-hours and equipment hours relating to the work hereunder in accordance with generally accepted accounting practices whenever, by the terms of this Contract, the Contractor's compensation shall be based wholly or partially on such costs, expenses, man-hours or equipment hours. Said records and books of account, together with any or all other memoranda pertaining thereto that may be kept by the Contractor, shall be open to examination during regular business hours by the Owner or its agents for the purpose of inspection, auditing, verifying or copying the same or making extracts therefrom. The Owner's payment of invoices hereunder shall not constitute acceptance of the accuracy thereof. Amounts shall be subject to audit in accordance with this section for two (2) years after the making of the last payment under this Contract. If the Owner gives notice of intent to audit within said two (2) year period, it shall have a reasonable amount of time thereafter to complete the audit. Whenever an audit of the Contractor's records shows that the Owner is entitled to a refund, the Contractor shall promptly make said refund with interest, compounded annually, at the prime rate established by Citi Bank, N.A., as published in The Wall Street Journal, or the highest rate permitted by law, whichever is less. The interest rate for each month shall be the rate in effect as of the close of business on the last banking day of such month. Such interest shall accrue from and after the date(s) the over-billing is paid to and including the date the overbilling is refunded. The Contractor's costs of correcting any billing error shall not be charged to the Owner. The Owner's audit costs which are incurred because of incomplete, illegible or inaccurate records of the Contractor shall be paid by the Contractor. 13. OVERTIME No overtime shall be performed on the work hereunder and no claim therefor shall be valid, unless authorized in writing by the Owner before the overtime is performed. Overtime which does not result in any extra charge to the Owner may be authorized orally. Overtime is all time in excess of eight (8) hours per person per day or in excess of forty (40) hours per person per week and any other time for which a rate higher than a straight-time rate will be charged to the Owner pursuant to this Contract. 14. CONSTRUCTION LIEN ACT If work under this Contract is subject to the Construction Lien Act, Act 497, Michigan Public Acts of 1980, as amended, the Owner will in accordance with said Act, if requested in writing by the Contractor or any of its subcontractors, suppliers or laborers, (a) provide the requesting party with a "Notice of Commencement" in accordance with said Act and/or (b) post said "Notice of Commencement" and record the same with the applicable Register of Deeds. The Contractor shall include the provisions of this paragraph in all of its procurement documents issued for the work under this Contract. CSS Form /2008 Page 3

4 15. TERMINATION AND SUSPENSION Notwithstanding anything in this Contract to the contrary, should the Owner for any reason whatsoever desire to terminate this Contract at any time before it is completed, the Contractor shall close down the job and stop the work upon written notice from the Owner. Any such termination shall be without prejudice to any other rights or remedies of the Owner for any breach of this Contract by the Contractor. The Contractor shall, upon the effective date of such notice of termination, immediately remove its employees, representatives, tools, equipment and other property from the Owner's premises. If the Contractor fails to effect such removal within a reasonable time, the Owner may do so at the Contractor's expense. In the event of such termination, payment for all work properly performed under this Contract shall be made in accordance with the rates and charges set forth elsewhere or in the case of a lump sum price, the Owner will pay the Contractor such part of the lump sum price as bears the same relation to the total lump sum price as the work performed prior to the time the notice of termination is effective bears to the entire work, as determined by the Owner, subject in either case to proper deductions for defective work, damages or costs sustained by the Owner by reason of any default, breach or failure to perform by the Contractor. If the Contractor breached this Contract prior to termination, the Contractor shall not be entitled to any further payment until the work hereunder or as much of it as the Owner elects to complete is finished. Upon any termination pursuant to this Section, the Owner shall be released from all further obligations under this Contract except for payment as provided for in this Section. The Owner may for any reason suspend the Contractor's performance of the work hereunder, in whole or in part, at any time and from time to time upon written notice to the Contractor. In such event, the Contractor shall resume the performance of the work as requested in writing by the Owner. In the event of any such suspension, the Contractor shall be entitled to reimbursement for additional costs reasonably and necessarily incurred by the Contractor in effectuating such suspension and in resuming the performance of the work as requested by the Owner after the end of the suspension. It is recognized that a prolonged suspension of the work, either in whole or in part, may create a hardship upon either or both parties. Therefore, should any suspension by the Owner exceed six (6) months in duration, the parties shall negotiate in good faith on appropriate revisions to this Contract. 16. DISPUTES In the event of a dispute between the Contractor and the Owner, the Contractor shall proceed with the work pending resolution of such dispute, unless otherwise requested by the Owner in writing. Either party may give the other party written notice of any dispute not resolved in the normal course of business. The Owner and Contractor shall thereupon attempt in good faith to resolve such dispute promptly by negotiations between executives who have the authority to settle the dispute. If the dispute has not been resolved within sixty (60) days after such written notice is given, either party may avail itself of any process or means legally available to it to resolve the dispute. 17. GOVERNING LAW AND INTERPRETATION This Contract shall be deemed to be a Michigan contract and shall be construed in accordance with and governed by the laws of the State of Michigan. In the event of any conflict between this document and any documents attached hereto or incorporated herein, the provisions of this document shall control. The Section headings in this Contract are included for reference only. They are not part of this Contract and shall not affect the interpretation and construction of this Contract. With respect to the subject matter hereof, this Contract supersedes all previous representations, understandings and negotiations, either written or oral, and constitutes the entire agreement between the parties hereto. This Contract is intended for the benefit of the parties hereto and does not grant any rights to any third parties unless otherwise specifically stated herein. 18. ETHICS AND COMPLIANCE Contractor shall comply with the provisions of the Attachment - CMS Energy Corporation Third-Party Ethics and Compliance Guidelines (2008) (Revision 1 April 2008) which is attached to and made a part of this Contract. Alternatively, if Contractor has an existing documented compliance program that includes compliance standards acceptable to the Owner, Contractor may request approval of its existing compliance program and, if approved, Contractor compliance with its existing compliance program will meet the requirement of this section. Contractor and all its employees and subcontractors shall abide by the provisions of the Attachment, or its internal compliance program (as applicable). CSS Form /2008 Page 4

5 19. COUNTERPARTS AND ELECTRONIC DOCUMENTS This Contract may be executed and delivered in counterparts, including by a facsimile or an electronic transmission thereof, each of which shall be deemed an original. Any document generated by the parties with respect to this Contract, including this Contract, may be imaged and stored electronically and introduced as evidence in any proceeding as if original business records. Neither party will object to the admissibility of such images as evidence in any proceeding on account of having been stored electronically. 20. ATTACHMENTS If checked, the following documents are attached to and hereby made a part of this Contract: Contract Insurance Supplement Class A Contract (CSS Form 928) Class B Contract (CSS Form 934) Class C Contract (CSS Form 935) Contract Addendum Contractor's Requirements - Hazardous Chemicals (Form 417) Vendor Payment - Financial EDI Transactions (CSS Form 0651) Special Conditions for Removal of Asbestos at CONSUMERS ENERGY COMPANY Facilities (CSS Form 0602) CMS Energy Corporation Third-Party Ethics and Compliance Guidelines (2008) (Revision 1 April 2008) Other: CONSUMERS ENERGY COMPANY By: By: Name: Name: Title: Title: Review and Approval CSS Legal CSS Form /2008 Page 5