20230505122 Supplemental Attachment H.pdf

GENERAL CONDITIONS
Construction/Field Services REV 5-19 Page 1 of 11
GENERAL CONDITIONS FOR CONSTRUCTION
AND FIELD SERVICES AGREEMENTS
Avista Corporation
East 1411 Mission Avenue
PO Box 3727
Spokane, WA 99220-3727
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Capitalized terms used in these General Conditions will have the meaning ascribed to them in either the Agreement, the Statement of Work, these General Conditions, or other documents incorporated into the Agreement.
GC-1 PERFORMANCE BY CONTRACTOR
1.1 Qualifications and Expertise. Contractor certifies that its officers and employees: (i) have the necessary knowledge, skill and expertise to manage and perform the Work (also called “Services”) required under the Agreement; and (ii) comply with all of the federal, state, and local laws and regulations that apply to such Work. Contractor understands that the knowledge, expertise and qualifications of Contractor and its officers and personnel to perform or supervise the performance of the Work, including the possession of appropriate permits and certificates, are essential and material representations of Contractor in executing the Agreement.
1.2 Licenses, Permits, Certificates. As a precondition to entering into the Agreement, and for the term of the Agreement, Contractor and its subcontractors approved by Avista, shall obtain and hold all of the current business or professional licenses, permits, and/or certificates required by law in the state in which the Work is to be performed under the Agreement. Except as specifically set forth in the Agreement, Statement of Work or other documents incorporated into the Agreement, Contractor shall, directly or through one or more subcontractors, be responsible for obtaining and paying for all necessary permits, licenses and/or certificates required during the performance of the Work. Avista may assist Contractor, when mutually agreed to by the Parties, in writing, in obtaining such permits, licenses and/or certificates. Contractor shall pay all governmental charges and inspection fees required to perform the Work.
1.3 Standard of Performance. Contractor certifies that the standard of care and skill for all professional and related Work performed or furnished by Contractor under the Agreement will be at least equal to the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality.
1.4 Delegation and Subcontracting. Contractor shall not (by contract, operation of law or otherwise) delegate or subcontract performance of any Work to any other person or entity without the prior written consent of Avista, which consent will not be unreasonably withheld. Any such delegation or subcontracting without Avista’s prior written consent will be voidable, at Avista’s sole option. In no event will Contractor’s delegation or subcontracting of performance of any of the Work, with or without Avista’s prior written consent, relieve Contractor of its responsibility to perform the Work in accordance with the Agreement.
1.5 Contractor Employees. Contractor shall not employ Avista employee(s) to perform any of the Work; Contractor shall employ only persons who are experienced and properly qualified to perform such Work. If requested to do so by Avista, Contractor shall remove from performance of the Work, any person Avista determines to be incompetent, careless, or otherwise objectionable. If applicable, Contractor shall assign any key personnel specified in the Agreement to perform the Work, and shall not reassign or remove such key personnel, for so long as they remain in Contractor's employ, without the prior written consent of Avista, which consent will not be unreasonably withheld. Contractor shall replace key personnel who leave Contractor's employ or who are reassigned or removed by Contractor with Avista’s consent, with personnel acceptable to Avista. Contractor shall be responsible, at its expense, for meeting all training, supervisory, inspection, certification and retraining requirements necessary to enable its employees and/or its subcontractor’s employees to safely and competently perform the Work, including, without limitation, complying with 29 CFR §1910.269 and 29 CFR §1926.950, as applicable, and any other laws or regulations that apply to the Work at the time Contractor performs such Work.
1.6 Independence. The Parties certify that the Agreement creates an independent contractor relationship between or among them. As such, Contractor’s personnel performing the Work under the Agreement will not be construed to be employees of Avista, and Contractor, solely, shall be responsible for payment of compensation to such personnel. Contractor, solely, shall be responsible for the payment of withholding taxes, unemployment insurance, worker’s compensation, social security, pensions, licenses, or other fees on behalf of its personnel in connection with the performance of the Work. Contractor shall be free of any control by Avista in selecting the means, methods, techniques, and procedures of the Work, subject to Contractor’s compliance with the terms of the Agreement. Under no circumstances does the Agreement render Contractor a partner or joint venture with Avista. Contractor shall not represent Avista, in any capacity, or assume or create any obligation in the name of or on behalf of Avista, except as expressly authorized in the Agreement.
1.7 Compliance with Laws and Regulations
1.7.1 As a federal contractor, Avista must comply with the provisions of certain federal regulations and include such provisions in its contracts and purchase orders. Contractor shall comply, and shall ensure that its suppliers and subcontractors of every tier comply, with all applicable laws, ordinances, rules, regulations, orders, licenses, permits and other requirements, in effect now or in the future, of any governmental authority (including, but not limited to, such requirements as may be imposed upon Avista) that are applicable to the Work under the Agreement, and shall furnish such documents to Avista as may be required to effect or evidence such compliance. All laws, ordinances,
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rules, regulations, and orders required to be incorporated into agreements of this character are incorporated into the Agreement by this reference.
1.7.2 Avista is an equal opportunity employer and federal contractor or subcontractor. Consequently, the Parties agree that, as applicable, they will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated into these General Conditions by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. These regulations require that covered prime contractors and subcontractors take affirmative action to employ, and advance in employment, individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. The Parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws, which is also incorporated into these General Conditions by reference.
1.7.3 Upon Avista’s request, Contractor shall provide Avista (and any federal or state agency) access to, and the right to examine, audit and copy, all information and records that provide verification of Contractor’s compliance with all federal and state regulations applicable to its performance of the Work.
1.8 Safety and Health Compliance
1.8.1 Contractor shall comply with all federal, state, OSHA, or local health and safety laws and regulations applicable to furnishing goods, and the protection of the health and safety of its employees or the general public in the performance of the Work. Contractor, at its expense and prior to commencing Work, shall have, in place, a safety program and safety practices that are compliant with the laws and regulations identified above and as may be specified in the Agreement. Contractor shall be responsible for supervising the Work Site safety practices and procedures applicable to Contractor and its employees and subcontractor employees. Contractor shall notify Avista’s Representative, as soon as feasible, of any and all federal, state, or local agency notice of regulatory non-compliance at the Work Site.
1.8.2 Contractor shall furnish adequate safety equipment relevant to its responsibilities under the Agreement to comply with all applicable federal, state, and local laws and regulations. All Contractor personnel are required to wear appropriate, protective personal equipment (e.g. hard hats, safety glasses, work gloves, work boots, personal floatation devices, fire retardant clothing, etc.) at the Work Site unless safety considerations dictate an exception. Contractor shall enforce personal protective equipment compliance by all personnel at all times (including its employees and the employees of others) in those areas of the Work Site under its control.
1.8.3 Contractor shall be responsible for the protection and safety of its employees and subcontractor employees, for final selection of safety methods and means, and for daily inspections of the Work Site and safety equipment. Contractor shall stop any part of the Work deemed unsafe by, and at the direction of Avista’s Representative, until corrective measures have been taken to remedy the unsafe practices or conditions to such Representative’s satisfaction. Contractor shall not be entitled to, or make any claim for expenses or damages growing out of such stoppages. If Contractor fails to take corrective measures in a timely manner, as reasonably determined by Avista in its sole discretion, Avista may attempt to remedy the condition, at Contractor’s expense, and may deduct such costs from any payments due, or that become due to Contractor. In no way will Avista’s failure to stop the Work due to an unsafe condition or Contractor practice, relieve Contractor of its responsibility to correct the unsafe practice or condition.
1.8.4 Contractor shall not permit the introduction or use of intoxicating liquor or beverages, drugs, or the possession of firearms, explosives, or weapons or any other contraband, by persons in connection with any Work performed at the Work Site or any of Avista’s premises occupied or controlled by Contractor’s employees and subcontractor employees, under the Agreement.
1.8.5 In emergencies affecting the safety or protection of persons, or the Work or property at the Work Site or adjacent property, Contractor shall take commercially reasonable action to prevent threatened damage, injury or loss, without special instruction or authorization from Avista. Contractor shall provide written notice to Avista, as soon as feasible, if Contractor believes that any significant changes in the Work or variations from the Agreement have been caused by the emergency. If a change in the Agreement is required because of the reasonable action taken by Contractor in response to such an emergency, a Change Order will be issued in accordance with the process described in Section 1 of the Agreement, to document the consequences of such action.
1.8.6 Contractor, solely, shall be: (i) responsible for locating underground utilities and safeguarding all facilities in the Work area in accordance with all state, county, or local regulations, and (ii) liable for repairing, at its sole expense, any damages caused to facilities due to Contractor’s failure to obtain such locates. Contractor must file a “report of
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accident” (in accordance with all applicable rules and regulations) for any damages that occur while performing the Work.
1.8.7 Contractor shall insure public safety by meeting all state and local safety rules and regulations, including without limitation, placing signs warning pedestrians and vehicular traffic of danger. When necessary, Contractor shall: (i) supplement warning signs with flag persons to direct traffic, and/or (ii) rope off particularly dangerous areas.
1.9 Environmental
1.9.1 Contractor shall maintain its equipment to prevent fluid leakage or spillage. Contractor shall: (i) promptly remove from the Site any equipment that does not meet this requirement, and (ii) remove and legally dispose of any resulting contaminated soil.
1.9.2 Contractor shall retain a spill clean-up kit on Site, at all times, sufficient in size to address all clean-up contingencies.
1.9.3 In the event Contractor discharges oil, fuel or chemicals onto land, Contractor shall begin containment and clean-up efforts immediately, and complete clean-up as soon as possible. Contractor shall ensure that its personnel have sufficient training, skills, and equipment to contain and clean-up all discharges, in accordance with applicable rules and regulations. Contractor acknowledges that containment and clean-up efforts must take precedence over normal Work. Contractor shall notify Avista’s Representative and call Avista’s Environmental Spill Phone at [phone], immediately, upon discovery of a spill at the Work Site.
1.9.4 Contractor shall be liable for all damages and costs of additional labor, equipment, supplies, and transportation deemed necessary by Avista or any governing agency, for containment and clean-up of oil, fuel, or chemical spills caused by Contractor’s employees, equipment, or resulting from its subcontractor operations.
1.9.5 Contractor shall dispose of all Contractor-generated waste at a disposal facility compliant with federal, state, and local laws, rules and regulations governing the disposal of the type and composition of such waste.
1.9.6 Contractor shall take precautions to minimize dust emissions while performing the Work, including without limitation, using water sprays or suspending activity during certain weather conditions, as applicable.
1.10 Cultural Historical Compliance
1.10.1 Contractor’s personnel performing the Work must comply with federal, state, and tribal laws and ordinances governing the discovery of unrecorded cultural resources, human remain, or fossils. The performance of Work, especially Work involving grading, excavation, trenching, drilling, or disturbance of soil, will be governed by the requirements set forth below; provided however, that such requirements do not relieve Contractor of any independent legal obligations.
1.10.2 The term “artifact” means any evidence of the activities or presence of past inhabitants, including markers of prehistoric activity and historic development. “Markers of prehistoric activity” may include arrowheads, fire-modified rock, animal bone tools, chipped or ground stone tools, burned earth, and exotic rocks and minerals. “Markers of historic development” may include milled lumber, concrete footings, old bottles, old farm equipment, and ceramic, brick and metal objects. “Human remains” may include bones, marked and unmarked graves of any age and associated objects. “Fossils” may include petrified wood and fossilized plant or animal remains.
1.10.3 Artifacts, human remains, fossils and their associated discovery sites may be protected by law, whether they are on public or private land, and violation of these laws may lead to civil and criminal penalties. Because public release of information about discovery sites may lead to damage, looting, or vandalism, Contractor shall treat the existence and location of all discovery sites as Confidential Information subject to protection in accordance with the Agreement.
1.10.4 Contractor shall report the discovery of any artifacts, human remains, or fossils in connection with the Work, immediately, to Avista’s Cultural Resources Specialist (CRS) at [phone] (or Montana’s Cultural Resources Specialist at [phone]) or to Avista’s 24-hour emergency contact at [phone]. Avista’s CRS will evaluate, record and report such discoveries to the appropriate authorities, government agencies, and tribes. Contractor shall not discuss or disclose such discovery to any other persons.
1.10.5 Upon discovery of artifacts, human remains or fossils, Contractor’s employees and/or subcontractor employees shall: (i) immediately stop performing Work in the area of the discovery and ensure that the discovery site is not in danger of additional disturbance; (ii) immediately contact Avista’s CRS ; (iii) restrict access to the discovery site pending instructions from the CRS; (iv) refrain from resuming Work in the vicinity of the discovery site until notified to do so by the CRS; (v) prevent the disturbance, picking up, or removal of artifacts, human remains and/or fossils; (vi) suspend any excavation of the discovery site; and (vii) refrain from photographing or recording discovered remains, artifacts, and/or fossils.
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1.11 Pre-Job Orientation. If a pre-job orientation meeting or other communication process (an “Orientation”) is required under the Agreement:
1.11.1 Contractor’s personnel assigned to perform Work at an Avista premises or Work Site shall attend such Orientation, prior to starting the Work. At the Orientation, Avista will provide Contractor’s personnel with information regarding: (i) Avista’s safety and environmental protection expectations, (ii) security and emergency requirements and procedures, and (iii) other information pertaining to the Work Site and the specific tasks to be performed by Contractor. In addition, Contractor’s on-site management or supervisory personnel shall be responsible for informing all personnel subsequently assigned to perform the Work under the Agreement about Avista’s requirements and expectations provided in the Orientation.
1.11.2 As part of the Orientation, Avista’s Representative will furnish Contractor with a list of hazardous chemicals at the Work Site to which Contractor or its personnel may be exposed. Avista’s Representative will also inform Contractor of any site-specific special protective and/or safety measures required to lessen exposures, and provide Safety Data Sheets, when pertinent.
1.11.3 As part of the Orientation, Contractor shall provide Avista’s Representative with: (i) a list of hazardous chemicals or materials that Contractor will bring onto the Work Site, and (ii) information regarding any special precautions required to prevent exposure to Avista's employees. Contractor shall make any associated Safety Data Sheets available to Avista, when pertinent. Contractor shall be responsible for communicating with its employees, subcontractor employees and agents under the provisions of the OSHA’s Hazard Communication Standard (29 C.F.R.§1910.1200) for results of exposure to pre-existing hazardous materials on the Site as reported by Avista’s Representative, and hazardous materials brought to the Work Site by Contractor.
1.12 Inspection and Records
1.12.1 Contractor shall provide Avista with access, at all reasonable times, to the Work and to the premises used by Contractor to fabricate, assemble or prepare the deliverables, to enable Avista to inspect the Work performed as well as the materials, equipment and other deliverables furnished under the Agreement. Contractor shall notify Avista’s Representative, as soon as feasible, when Work or specific portions of the Work are ready for any inspections, tests, or approvals required under the Agreement, the Statement of Work or other documents incorporated into the Agreement.
1.12.2 If Contractor covers up or makes inaccessible said Work before Avista’s Representative can reasonably make required inspections, Avista may, at its sole option, request Contractor to make said Work available to Avista for inspection. Contractor shall comply with such request, and will be responsible for all costs associated with such inspection, whether or not the Work is found to be in accordance with the Technical Specifications (or other requirements, as applicable).
1.12.3 Upon Avista’s requests, Contractor shall provide Avista with access to information related to the Deliverables or Work performed under the Agreement (“Information”), as soon as feasible after receipt of such request, for examination, audit and/or copying. Such Information may include, without limitation: (i) Quality Assurance and Quality Control records, (ii) factory inspection, test or calibration data associated with the Deliverables, and (iii) purchase orders indicating the source of supply of components and materials.
1.13 Correction of Non-Compliant Services or Deliverables. Contractor shall correct, at its expense, any Work performed or Deliverables found to be non-compliant with the requirements of the Agreement. If Contractor fails to comply (or indicates its inability or unwillingness to comply) with Avista’s direction to correct non-compliant Work then, upon 10 days’ advance written notice, Avista may correct (or cause to be corrected) the non-compliant Work or otherwise achieve compliance by the most expeditious means available to Avista (by contract or otherwise) and charge to, or otherwise recover from Contractor (e.g., by offset against compensation payable to Contractor by Avista under the Agreement) the cost of Avista’s corrective measures. Avista’s right to make corrections and otherwise achieve compliance and recover from Contractor the cost of such corrections, is in addition to all other rights and remedies available to Avista under the Agreement or otherwise by law. Contractor's obligation to satisfactorily correct non-compliant Work will not in any way limit or qualify any of Contractor’s other obligation under the Agreement, and will remain in effect until the Work has been completed and accepted by Avista, in writing; provided, however, that in the event the Work is found to be defective after Avista’s final acceptance, Contractor’s obligation to correct such defective Work will be governed by Section 1.14, Warranty, set forth immediately below.
1.14 Warranty: After completion of the Work and Avista’s final written acceptance of the same:
1.14.1 Unconditional Warranty: Contractor certifies that (i) all workmanship and materials included in the Work will be free from defects; (ii) the Work will be performed in a competent manner in accordance with relevant industry standards, all “Applicable Laws” and the Statement of Work (including any Specifications and Drawings) under the
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Agreement (and Work Authorization(s), if or as applicable); and (iii) none of the Work and other services rendered by or through Contractor under the Agreement (and Work Authorization(s), if or as applicable), nor the use of the Work by Avista, nor any license granted to Avista by Contractor, will infringe, violate or constitute a misappropriation of any intellectual property rights (“Warranty”). As used in this Section, “Applicable Laws” mean any act, statute, law, regulation, permit, ordinance, rule, judgment, order, decree, directive, guideline or policy (to the extent mandatory) or any similar form of decision or determination by, or any interpretation or administration of any of the foregoing by, any government authority with jurisdiction over Contractor, Avista, the applicable project and work site, the performance of the Work or other services to be performed under the Agreement (and Work Authorization(s), if or as applicable), including any of the same as they may be amended or imposed from time to time. The Warranty Period for Work will be two (2) years from the completion of the Work and Avista’s written acceptance of the same (“Warranty Period”).
1.14.2 Defects: Avista will notify Contractor if any defects in the Work are discovered within the Warranty Period, and Contractor shall promptly commence all necessary efforts to correct such defect(s) (“Warranty Services”). Contractor shall be responsible for the costs directly associated with the Warranty Services, including, without limitation, the costs of permits, design, labor, equipment, and any necessary disassembly, removal, replacement, transportation, reassembly, reinstallation, and retesting, as well as re-performance, repair and/or replacement of such Work, and reassembly of structures, electrical work, machinery, equipment, or any other obstruction (as necessary) to enable access to the defect for correction, removal, repair and/or replacement of any damage to other work or property that arises from any defects in the Work. Contractor shall perform, at its sole expense, such tests as Avista may reasonably request to verify that any correction, repair, replacement, and/or re-performance of the Work pursuant to the Warranty Services is complete.
1.14.3 Title/Pass-through: Contractor certifies that title to all construction materials and equipment covered by any invoice submitted to Avista for reimbursement, whether incorporated into the Work or not, will pass to Avista no later than at the time of final payment, free and clear of all liens. In addition, Contractor shall identify, in writing, all third-party warranties that Contractor receives in connection with the Work and shall pass through the benefits of all such warranties to Avista. Nothing in this Section shall reduce or limit Contractor’s obligations under the Agreement.
1.15 Code of Conduct. Contractor shall ensure that its employees and subcontractors of every tier comply with the following Standards of Conduct:
1.15.1 Antitrust. Contractor shall: (i) comply with all applicable antitrust and fair competition laws governing the Services applicable under the Agreement; (ii) avoid all appearances of wrongdoing; (iii) report all pertinent financial information, prepare invoices, document the purpose of the transaction, and prepare all information/records related to the Work, accurately; (iv) respect the trade secrets and non-public information of others; and (v) avoid compromising ethical standards to gain a competitive advantage or to meet business objectives including, without limitation, making or receiving improper payments or gifts.
1.15.2 Conflict of interest. Contractor certifies that: (i) it is not aware of the existence of any relationship, family, or business (contractual or otherwise) between themselves, their principals, officers or employees and Avista, its directors, officers or employees that conflict with its obligations under the Agreement; and (ii) it will not perform any Work for, or enter into any contract with others that may conflict with its contractual, professional, equitable and/or other obligations to Avista without the prior written approval of Avista.
1.15.3 Ethics. With regard to the Agreement and performance of the Work, Contractor shall not: (i) pay any commissions or fees, or grant any rebates to any Avista employee or officer; (ii) favor any Avista employee or officer with gifts or entertainment of significant cost or value; or (iii) enter into any business arrangements with Avista employees or officers in their individual capacities, without the prior written approval of Avista.
1.15.4 Corporate Opportunities. Contractor shall not take opportunities discovered through: (i) performance of the Work, or (ii) use of Avista’s property, information or position for personal or corporate gain.
1.15.5 Workplace Environment: Contractor shall perform the Work in a harassment-free, safe, secure, and hospitable manner in an effort to maintain Avista’s goal of creating an inclusive environment that fosters mutual respect, diversity, and equal opportunity for workplace advancement.
1.15.6 Insider Trading: Contractor shall comply, and shall ensure that its suppliers and subcontractors of every tier comply, with federal securities laws prohibiting “Insider Trading” transactions – defined as anyone: (i) purchasing or selling Avista securities (either personally or on behalf of others) if that person is aware of material, non-public information about Avista, or (ii) disclosing material non-public information about Avista to others (i.e. “tipping”) who then trade-in such securities.
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1.15.7 Environmental Stewardship: Contractor shall perform, and shall ensure that its suppliers and subcontractors of every tier perform, the Work in an environmentally responsible manner in compliance with all applicable environmental laws and regulations.
1.15.8 Prohibited Business Practices: Contractor shall provide, and shall ensure that its suppliers and subcontractors of every tier provide, the Work in compliance with applicable laws and regulations concerning bribery, corruption, fraud and any other prohibited business practices, and Avista’s policy strictly forbidding giving or promising anything of value to a government official or employee, whether to influence such person in their official duties or to encourage unlawful conduct.
1.16 Customer Interaction: If Contractor will interact with Avista’s customers and/or the public while performing Work under the Agreement, Contractor (including its employees, representatives, and subcontractors) shall: (i) conduct itself in a polite and professional manner when interacting with such customers and/or the public; (ii) wear appropriate attire for the Work, including any safety-related attire or equipment; (iii) obtain identification badges (“Badges”) from Avista prior to performing the Work if requested to do so by Avista’s Representative, display such Badges at all times during performance of the Work, and return the Badges to Avista’s Representative (or as otherwise directed by such Representative) upon completion of the Work; and (iv) identify all of its vehicles used in performance of the Work with signage provided by Avista’s Representative.
1.17 Miscellaneous Performance Requirements
1.17.1 Contractor shall be responsible for: (i) all materials, tools and/or other articles (collectively, “Items”) used or held for use in connection with the Work, including, without limitation, the risk of loss, actual loss and/or damage, resulting from fire, theft or other causes, and (ii) repairing or replacing such Items, as soon as feasible, at no cost to Avista. Contractor shall carry all Work to completion without damage to any Avista work or property or the work or property of others, and without interference with the operation of existing machinery or equipment. Contractor shall be liable for damage to such property and the cost associated with repairing same.
1.17.2 Avista reserves the right to perform, or employ other contractors to perform, collateral or interface work (“Interface Work”) at the Work Site, and Contractor shall cooperate with Avista (and/or any other contractors) during the performance of such Interface Work. Avista will use commercially reasonable efforts to coordinate all Interface Work or related activities and services at the Work Site.
1.17.3 Contractor shall limit its use of the Work Site to the areas designated in the Technical Specifications and Drawings or as otherwise approved by Avista’s Representative at the Work Site. Contractor shall use commercially reasonable efforts to keep adjacent areas clean and unobstructed.
1.17.4 Contractor shall not allow its materials or refuse to interfere with free access to or egress from the Work Site by Avista, its employees or other authorized persons, and/or Contractor’s employees, subcontractor employees or other authorized persons.
1.17.5 Contractor shall be responsible for repairing, at its sole expense, damaged property including, without limitation, concrete, asphalt, and landscaping, resulting from Contractor’s Work. Contractor shall notify Avista’s Representative, immediately, of any damage, and complete an Avista “Incident Report” as soon as feasible. Contractor shall repair property damage, expeditiously, to avoid further damage and customer inconvenience, and shall indemnify Avista from any and all claims relating to the same. Contractor shall return damaged areas to as good as or better condition as existed prior to commencing the Work.
GC-2 CHANGES IN THE AGREEMENT AND STATEMENT OF WORK
After the Effective Date of the Agreement, no amendment or modification of the provisions of the Agreement will be effective unless made by written Amendment or Change Order executed by both Parties in accordance with the process described in the Agreement. Contractor acknowledges that it will not be entitled to anticipated profit on Work not performed as a result of a decrease in Work approved in an executed Change Order, and the associated decrease in compensation under the Agreement resulting from such change will not be offset by the loss of anticipated profit. Further, Contractor will not be entitled to any reallocation of cost, profit, or overhead.
GC-3 INDEMNITY
3.1. Indemnity – General. Subject to applicable law, Contractor shall indemnify and, upon request, defend Avista, its directors, officers, employees, and agents, from and against all third party claims, demands, suits, losses, expenses (including court costs and reasonable attorneys’ fees), and damages for bodily injury or physical property damage (individually or collectively, "Loss"), brought against or incurred by Avista resulting from, arising out of, or in any way connected with Contractor’s negligence or the negligence of its employees, agents, suppliers and subcontractors of any tier in the performance or nonperformance of Contractor’s obligations under the Agreement. Contractor shall be entitled
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to control the defense and resolution of such claim, provided that Avista shall be entitled to be represented in the matter by counsel of its choosing, at Avista’s sole expense. In the event that any such Loss is caused by the concurrent negligence of both Avista and Contractor, including their respective employees, agents, and subcontractors, the Loss will be borne by Contractor and Avista in the proportion that their respective negligence bears to the total negligence causing such Loss.
3.2. Indemnity – Claims by Government Authorities. Contractor shall indemnify and, upon request, defend Avista, its officers, directors, employees, successors and assigns, from any liability, damage, suit, penalties, demand, and expense (including without limitation, reasonable attorney’s fees and court costs) for claims by governmental authorities or others (including Contractor’s employees, subcontractors and subcontractor employees) of any actual or asserted failure of Contractor to comply with any law, ordinance, regulation, rule or order of any governmental or quasi-governmental body including without limitation, actual or asserted failure of Contractor to comply with employee safety and health regulations, environmental regulations or employment laws in connection with the Work performed pursuant to the Agreement.
3.3. Indemnity - Infringement or Wrongful Use. Contractor shall indemnify and, upon request, defend Avista, its officers, directors, employees, successors and assigns, from all claims, suits, losses, liabilities, damages, expenses (including court costs and reasonable attorneys’ fees) and royalties, based upon infringement (or alleged infringement) of any patent, copyright, trade name or trademark or upon the Contractor's or its subcontractor's wrongful use (or alleged wrongful use) of any confidential or proprietary concept, method, process, product, writing, information or other item arising out of or in connection with the Agreement, performance of the Work, or the use of any of the Services. Furthermore, if any of the Work or any use of the Services constitutes an infringement of any patent, copyright, trade name or trademark or wrongful use of any confidential or proprietary concept, method, process, product, writing, information or other item, Contractor shall, at its expense, either: (i) procure for Avista the right to use the infringing item, (ii) replace the infringing item with a substantially equal but non-infringing item, or (iii) modify the infringing item so that it becomes non-infringing.
3.4 Waiver of Immunity. To the extent permitted by law, Contractor waives any immunity, defense or other protection that may be afforded by Workers’ Compensation, Industrial Insurance or similar laws in the state where Work is performed pursuant to the Agreement (including but not limited to, the Washington Industrial Insurance Act, Title 51 RCW) to the extent Contractor is required under the indemnity provisions of the Agreement to indemnify and defend Avista with respect to any claim or action brought against Avista by a Contractor employee. The Parties have specifically negotiated this Section and Contractor makes the foregoing waiver with the full knowledge of the consequences.
GC-4 CONFIDENTIALITY OBLIGATIONS
4.1 Each Party acknowledges that it may come into contact with or possession of confidential information (“Confidential Information” or “Information”) belonging to the other Party during the term of the Agreement including, without limitation: computer programs, techniques, methods, rules, algorithms, procedures, protocols, forms, instructions, trade secrets, copyrights, patents, customer information, employee information, financial performance information and any other proprietary information used in connection with, or in any way relating to the Services provided or the activities of each Party. Confidential Information acquired by, or disclosed to any employee, agent, or representative of a Party is deemed to have been acquired by, or disclosed to such Party.
4.2 Neither Party shall divulge, disclose, or otherwise make available in any form to any person or entity, Confidential Information belonging to the other Party unless: (i) the Information was already known to the receiving Party at the time of the disclosure; (ii) the Information was in the public domain at the time it was disclosed to the receiving Party; (iii) the Information was obtained by the receiving Party from a third party who was not prohibited from making the disclosure; or (iv) the receiving Party is required to disclose the Information to comply with any applicable law, regulation, ruling or order.
4.3 In the event that disclosure is compelled by applicable law, regulation, ruling, or order, the receiving Party shall provide the disclosing Party with prompt written notice so that the disclosing Party may seek a protective order or other appropriate remedy. Each Party shall instruct its employees and agents to protect the Confidential Information of the other Party using the same care and discretion that it would use with respect to its own Information. Furthermore, neither Party shall use the Confidential Information of the other Party for any purpose other than the performance of the Work under the Agreement.
4.4 Avista’s Confidential Information also includes all information provided to Contractor by Avista, or developed or gathered by Contractor in connection with the Services. Until Information gathered by Contractor has been released by Avista for public disclosure, such Information must be held and protected by Contractor in accordance with this Section 4. Further, Contractor’s evaluations, analyses, reports and other assessments of Avista’s plans, facilities, and operations (whether presented orally or in writing or other tangible form) performed by or produced by Contractor pursuant to the Agreement will become the property of Avista and will be deemed Avista’s Confidential Information.
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4.5 Contractor shall hold the terms of the Agreement in confidence, and shall not disclose said terms to third parties except as may be necessary to its accountants, attorneys, tax advisors, insurance carriers, and/or bankers. Upon Avista’s request, or upon termination of the Agreement, Contractor shall destroy or return to Avista, all documents or other materials containing Avista’s Confidential Information. Within two (2) weeks after (i) receipt of such request, or (ii) the termination or expiration of the Agreement, Contractor shall provide Avista with written confirmation that all materials containing Avista’s Confidential Information in its possession have either been destroyed or returned to Avista. Contractor shall not retain any copies of Avista’s Confidential Information, for any reason, without Avista’s express written consent.
4.6 Contractor certifies that it will require its employees performing Work under the Agreement to execute written agreements with Contractor containing appropriate non-disclosure and intellectual property ownership provisions sufficient to enable Contractor to comply with the confidentiality and non-disclosure provisions of the Agreement, prior to initiating the Work.
4.7 The Parties acknowledge that the unauthorized disclosure of Confidential Information, as defined in these General Conditions, may give rise to irreparable injury that may not be adequately compensated by monetary damages. Accordingly, in the event of a breach or a threatened breach of such Information, the non-breaching Party will be entitled to injunctive relief, in addition to any other remedies available at law or equity.
GC-5 INTELLECTUAL PROPERTY RIGHTS
5.1 To the extent that Contractor is performing Services and/or furnishing Deliverables under the Agreement related to Contractor’s own pre-existing proprietary software, Avista acknowledges that Contractor owns and will continue to own all proprietary rights including, but not limited to, any patent, copyright, trade secret, trademark and/or other proprietary rights, in and to such pre-existing deliverables and any derivative works. Contractor grants to Avista a permanent, non-exclusive, assignable, royalty-free license to use the pre-existing deliverables furnished by Contractor under the Agreement.
5.2 Except as set forth in Section 5.1 immediately above, all Work performed by Contractor, and all materials, products, and/or Deliverables developed or prepared for Avista by Contractor pursuant to the Agreement, are the property of Avista, and all title and interest in same will: (i) vest in Avista, and (ii) be deemed to be a work made for hire, made in the course of the Services rendered under the Agreement. To the extent that title to any such works may not vest in Avista by operation of law, or such works may not be considered works made for hire; all rights, title, and interest in such works are irrevocably assigned to Avista by Contractor by this reference. All such materials will belong exclusively to Avista, and Avista will have the right to obtain and hold in its own name, copyrights, registrations or such other protection as may be appropriate to the subject matter, and any extensions and renewals of same. Contractor shall give Avista (and any person designated by Avista) reasonable assistance, at Avista’s expense, as may be required to perfect the rights defined in this Section. Unless Avista requests otherwise, upon completion or termination of the Services, Contractor shall turn over to Avista all materials and Deliverables developed pursuant to the Agreement.
5.3 The copyrights to all user manuals, training products, instructions, and software manuals (collectively, the “Documents”) furnished by Contractor in connection with any Products and/or Services provided under the Agreement will remain the property of Contractor or Contractor’s vendors. Avista may make copies of the Documents provided that: (i) the Documents are used only for backup or archival purposes, Avista employee training, support of Avista’s operational use of the Products and/or Services, and non-commercial purposes; (ii) the Documents are not modified or altered in any way; and (iii) all copies of the Documents bear the copyright owner’s copyright notice.
GC-6 TERMINATION 6.1 Termination for Convenience
6.1.1 Avista may terminate the Agreement, at any time, as to all or any portion of the Work not then performed, whether or not Contractor is then in breach or default, by providing written (email acceptable) notice (“Termination Notice” or “Notice”) indicating the date upon which Contractor must stop performance of the Work. Upon receipt of a Termination Notice, Contractor shall stop performance of the Work, immediately, or as otherwise directed by
Avista in such Notice.
6.1.2 If termination is not the result of Contractor's breach or default:
• Avista will pay Contractor in accordance with the pricing agreed to by the Parties for the actual Work (or number of units) completed, up to the date of the Termination Notice; provided however, that in no event will such compensation exceed the percentage of the Work (or number of units) satisfactorily completed at the time of such Notice.
• Contractor shall inventory and release to Avista all unused Avista-owned or Avista–provided materials, parts and/or equipment procured to execute the Work. Contractor acknowledges that Avista will reduce the compensation payable under the Agreement by the cost of any material, part and/or equipment unaccounted for.
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• Contractor shall not be entitled to anticipated profits on Work not performed because of such termination, and shall use commercially reasonable efforts to minimize the compensation payable under the Agreement in the event of such termination.
6.2 Termination for Cause. In the event of a material breach by Contractor, Avista may terminate the Agreement, immediately. A material breach includes, without limitation, a material breach of any warranty, insolvency, bankruptcy, general assignment for the benefit of creditors, a receiver being appointed for Contractor’s properties, Contractor becoming the subject of any proceeding commenced under any statute or law for the relief of debtors, Contractor abandoning the Work, or Contractor not performing the Work in accordance with the Agreement or failing to comply with any safety rule, regulation or standard. In the event of such termination, Contractor shall inventory and release to Avista all unused Avista-owned or Avista–provided materials, parts and/or equipment procured to execute the Work. Contractor acknowledges that Avista will reduce the compensation payable under the Agreement by the cost of any material, part and/or equipment unaccounted for.
6.3 Termination Assistance. In the event the Agreement is terminated prior to the completion of the Work, Contractor shall provide whatever termination assistance (including but not limited to, knowledge and documentation transfer) Avista may request to affect the orderly transfer of information and performance responsibilities with minimal disruption to Avista and/or the new service provider selected by Avista.
GC-7 DISPUTE RESOLUTION/ESCALATION PROCESS
7.1 If any dispute arises between the Parties regarding: (i) issues of interpretation of the Agreement, (ii) the Work applicable
under the Agreement, (iii) claim for payments due, or (iv) the Work changed or added by Change Order or Work Authorization, the Parties shall first negotiate informally, in good faith, to resolve such dispute or claim. Such informal
negotiations will be conducted between representatives of each Party (“Representatives”) and their respective contracting officials.
7.2 If the Representatives are unable to resolve the dispute after five (5) days of negotiations then, upon the written request of either Party, each of the Parties shall designate an officer: (i) to meet at a mutually convenient time and place to evaluate the position or contention of each Party, and (ii) endeavor to negotiate a resolution of the dispute. If the dispute is not resolved in the meeting between the Parties’ officers, either Party may request non-binding mediation (“Mediation”) by
written notice to the other Party. Within seven (7) calendar days after a request for Mediation from either Party, the Parties will select a mutually acceptable mediator and commence non-binding Mediation. Each Party will bear its own cost of
Mediation and one-half of the cost of the mediator. The venue of Mediation proceedings will be in Spokane, Washington. If the Parties are unable to resolve the dispute after conclusion of Mediation, then all unresolved disputes may be resolved in a court of competent jurisdiction.
GC-8 MISCELLANEOUS PROVISIONS
8.1 Assignment by Contractor. Contractor shall not assign the Agreement, or any right or interest in the Agreement, without the prior written consent of Avista, which consent will not be unreasonably withheld. Assignment without Avista’s prior written consent will be voidable at Avista’s sole option. No such assignment, with or without Avista’s prior written consent, will relieve Contractor from its responsibility to perform the Services in accordance with the Agreement.
8.2 Assignment by Avista. Avista may assign the Agreement, without consent, to an affiliate or subsidiary, or to a successor that acquires all or substantially all of Avista’s property and assets. Subject to the restriction on assignment by Contractor set forth in Section 8.1 above, the Agreement will be fully binding upon, inure to the benefit of, and be enforceable by the successors, assigns, and legal representatives of the respective Parties.
8.3 Outstanding Legal Claims. The Parties certify that there are no outstanding legal claims, suits, or proceedings that would in any way conflict with the performance by Contractor of its obligations set forth in the Agreement. If any legal claim, suit, or proceeding, that is reasonably likely to affect the execution of the Agreement, is instituted against a Party, such Party shall promptly notify the other of the same.
8.4 Publicity/Advertising. Neither Party shall issue any public statements, announcements, advertisements, or publications relating to the Agreement or its subject matter without the express, prior written consent of the other Party. Neither Party shall display or use, in advertising or otherwise, any of the other Party’s trade names, logos, trademarks, service marks, or other indicia of origin without the express, prior written consent. Either Party may disclose the other Party's name and a factual description of the Services being performed under the Agreement whenever required by reason of legal, accounting, or regulatory requirements.
8.5 Codes and Standards. References to standards, specifications, manuals or codes of any technical society, organization or association, or to the laws or regulations of any governmental authority, whether such references are specific or by implication, mean the latest version of such standard, specification, manual, code or laws or regulations in effect on the
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Effective Date of the Agreement, except as may be otherwise specifically stated elsewhere in the Agreement.
8.6 Cumulative Rights and Remedies. All rights and remedies of either Party under the Agreement, at law and in equity, are cumulative and not mutually exclusive; the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. Except as otherwise provided for in the Agreement, nothing contained in any provision of the Agreement will be construed to limit or exclude any right or remedy of either Party (arising because of the breach or default by the other Party or otherwise) existing under any other provision of the Agreement.
8.7 Severability and Waiver of Provisions. The invalidity or unenforceability of any provision of the Agreement will not affect any other provisions; the Agreement will be construed in all respects as if such invalid or unenforceable provisions were omitted. The failure of Avista to insist upon or enforce strict performance by Contractor of any of the provisions of the Agreement, or to exercise any rights under the Agreement, will not be construed as a waiver or relinquishment to any extent of Avista’s right to assert or rely upon any such provisions or rights in that or any other instance; rather, the same will be and remain in full force and effect.
8.8 Entire Agreement; No Third Party Beneficiaries. The Agreement is the entire agreement between the Parties and supersedes all prior agreements and understandings between the Parties concerning its subject matter whether or not written. Nothing in the Agreement is intended to: (i) confer any right or benefit on a person or entity not a party to the Agreement, or (ii) impose any obligations of either Party on persons or entities not a party to the Agreement.
8.9 Time is of the Essence. Whenever the Agreement sets forth a time for an act to be performed by Contractor, such time will be deemed “of the essence” and Contractor’s failure to perform within the time allotted will be sufficient grounds for Avista to invoke any appropriate remedy including, without limitation, termination of the Agreement.
8.10 Attorney’s Fees. If any legal action or proceeding is brought by either Party against the other in connection with the Agreement, the prevailing Party will be entitled to recover from the other Party, reasonable attorney's fees fixed by the court, together with all costs incurred by the prevailing Party in connection with such action or proceeding.
8.11 Survival. Any provisions of the Agreement that, by their sense and context, are intended to survive performance by either or both Parties pursuant to the Agreement, will survive the completion of performance of the Work, and termination or expiration of the Agreement. All representations, indemnifications, warranties and guarantees made in, required by, or given in accordance with the Agreement, as well as all continuing obligations indicated in the Agreement, will survive final payment, completion and acceptance of the Work, and termination or expiration of the Agreement.
8.12 Headings. Section headings are for convenience, only, and will not be given effect in interpretation of the Agreement.
8.13 Further Assurances. Each Party shall do all things necessary or advisable, including but not limited to, the preparation, execution, delivery, and recording of any instruments or agreements, in order to confirm and assure the intent and purposes of the Agreement.
8.14 Governing Law and Venue. Any action at law or in equity to enforce the terms of the Agreement will be brought in Spokane County, Washington. The Agreement will be construed and interpreted in accordance with the laws of the State of Washington, excluding any choice of law rules that may direct the application of laws of a jurisdiction other than Washington.
8.15 Conflict Minerals Compliance. If applicable, Contractor (and any subcontractor providing products that may contain the conflict minerals defined in this Section) shall conduct commercially reasonable “due diligence”, as required by §1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Conflict Minerals Rule”), to ensure that any “Conflict Minerals” (defined as gold, tin, tantalum, and tungsten, as well as their derivatives, cassiterite, columbite-tantalite and wolframite) used in products supplied to Avista or incorporated into work performed for Avista are not sourced from the Democratic Republic of Congo or other adjoining countries as may be identified in the Conflict Minerals Rule.

[END OF GENERAL CONDITIONS]
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