20151009Notice of Affiliate Transaction.pdf

PncIFICO
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Vice President and General Counsel
1107 W. North Temple, Saite 320
Salt Lake CiA, UT 84116
801-220-4734 Office
801-220-4058 Fux
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A MIOAMERICAT{ ENERGY HOLDINGS OOM l5 OCT -9 At't 9: ltr
October 9,2015
VA OWRNIGHT DELIWRY
Idaho Public Utilities Commission
472West Washington
Boise,ID 83702-5983
Attention:Jean D. Jewell
Commission Secretary
PacifiCorp Notice of Affiliate Transaction
Case No. PAC-E-05-8
Dear Ms. Jewell:
This letter will serve as written notice pursuant to CommitmerrtI l7(2\ incorporated in
the Idaho Public Utilities Commission Order No. 29973 issued February 13, 2006, as
supplemented by Order No. 29998 March 14, 2006, in the above-referenced proceeding,
approving the acquisition of PacifiCorp by MidAmerican Energy Holdings Company (now
known as Berkshire Hathaway Energy Company or "BHE"), of an affiliated interest transaction
with Graver Water Systems, Inc. ("Graver").
PacifiCorp is a wholly-owned indirect subsidiary of BHE. BHE is a subsidiary of
Berkshire Hathaway Inc. ("Berkshire Hathaway"). Berkshire Hathaway also currently holds a
majority interest in the Marmon Group ("Marmon"). Marmon is comprised of three autonomous
companies consisting of thirteen diverse stand-alone business sectors. Graver is part of the
Marmon Retail Technologies Company, in the Water Technologies sector. Berkshire Hathaway's
ownership interest in Marmon and BHE may create an affiliated interest between PacifiCorp and
Graver in some PacifiCorp jurisdictions.
Graver designs, manufactures and markets water and wastewater treatment systems and
related products. Graver is the original equipment manufacturer ("OEM") with respect to a water
tank that was installed at PacifiCorp's Jim Bridger facility in 1974. In furtherance of the regular
maintenance and repair of the water tank, PacifiCorp now wishes to purchase from Graver a
replacement manway cover door and other miscellaneous OEM parts for a total purchase price of
approximately $667. These will be purchased in accordance with the terms of the Purchase Order
("Purchase Order"). A copy of the Purchase Order is included with this Notice as Attachment A.
The Purchase Order was prepared in accordance with PacifiCorp's procurement policies
and procedures and contains standard commercial terms and conditions to protect the Company's
ability to provide safe and reliable service. Accordingly, the use of Graver to supply the products
pursuant to the Purchase Order furthers the public interest.
urrJr?ffic#*f*+i8*'u*
Re:
Jean D. Jewell
Notice of Affiliate Transaction
October 9,2015
Please do not hesitate to contact me if you have any questions.
Best Regards,
R. JeffRichards
Vice President and General Counsel
PacifiCorp
Enclosures
ATTACHMENT A
PURCHASE ORDER
YP^qIFICoRP
PacifiCorp Procurement
825 NE Multnomah Sfreet, Suite 1800
Portland, Oregon 97232
Page 1 of 9
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version 1
Purchase Order
Address
PacifiCorp
Jim Bridger Power Plant
9 miles north of Point of Rocks
POTNT OF ROCKS VW 82942
Vendor Address
GMVER WATER SYSTEMS INC
675 CENTML AVE STE 3
NEW PROVIDENCE NJ 07974
USA
Attention: CYNTHIA CARMEN
Vendor Phone: [phone]
Vendor Fax: [phone]
Address
PacifiCorp
Accounts Payable Department
P,O. Box 3040
Portland, OR 97208 - 3040
When an altemative Billing Address is prefened, it will
be noted below.
Date 09/30/2015
Vendor No. 105197
Payment Terms Description NET 30
Buyer
Phone
Fax
Delivery Date
lnco Terms Description
lnco Terms (Part X)
Ramona P. Young
[phone]
[phone]
1011212015
FOB Origin Collect
Ref Shipping I nstructions
Show the Purchase Order Number on all packages, invoices, bills
of lading and correspondence. Send invoices to Accounts Payable
Department. Notify buyer immediately: (1) if unable to ship or
deliver on dates specified below or (2) when description is
or superseded. Any refund checks must be sent to the following
address and not to individual employees.
PacifiCorp
PO Box 5504
Portland, OR 97208-5504
VENDOR MUST PROVIDE A ORDER CONFIRMATION TO:
[e-mail] or FAX TO: (307 ) 352-4415
MATERIAL MUST BE DELIVERED ON/OR BEFORE THE REQUIRED
DELIVERY DATE LISTED ON THIS PURCHASE ORDER.
IF UNABLE TO MEET THIS DATE -
PLEASE NOTIFY BUYER IMMEDIATELY !!
PLEASE REFERENCE PACIFICORP P.O.# ON ALL CORRESPONDANCE
Shipping lnstructions:
SUPPLIERS ARE TO SHIP MATERIAL PER SHIPPING INSTRUCTIONS LISTED BELOW WHEN FREIGHT COSTS ARE PAID BY PACIFICORP.
SUPPLIERS ARE NOT TO USE ANY ALTERNATE SHIPPING SUPPLIERS WITHOUT APPROVAL OF THE BUYER. ANY DEVIATIONS FROM THESE
INSTRUCTIONS WITHOUT PRIOR AUTHORIZATION SHALL BE CONSIDERED AS THE SUPPLIERS AGREEMENT TO PAY ALL TMNSPORTATON
CHARGES, REGARDLESS OF THE AMOUNT.
IF SHIPMENT WEIGHS LESS THAN 150 LBS.
SHIP UPS GROUND, COLLECT; ON UPS ACCOUNT NUMBER 63RV22
PLEASE INSURE SHIPMENT FOR REPLACEMENT VALUE OF ORDER.
FOR ROUTINE SHIPMENTS WEIGHING BETWEEN 151 THRU 5OOO LBS,
YOU MAY ENTER THE SHIPMENT ON.LINE
PLEASE LOG-IN TO ECHOTRAK USING YOUR LOCATION SPECIFIC LOGIN - IF YOU DO NOT HAVE A USERNAME/PASSWORD, PLEASE
CoNTACT ECHO TO GET SET UP. [phone]
\PtctnCoRp
PacifiCorp Procu rement
825 NE Multnomah Sfreet, Suite 1800
Portland, Oregon 97232
4500767643 Dated 09/30/2015 Page 2 of 9
1OlO1l2O15 09:48:50
Purchase Order
http ://www.echotrak.com
CONTACT ECHO FOR PICKUP. ECHO WILL NEED THE PACIFICORP PO#, ORIGIN AND DESTINATION INFORMATION, WEIGHT, PIECE COUNT,
COMMODIry DESCRIPTION AND DIMENSIONS
PH 312-334-2642
FAX [phone]
EMAIL pacifi [e-mail]
ECHO GLOBAL LOGISTICS WILL PROVIDE YOU A CARRIER AND BOL
3RD PARTY BILL TO:
PacifiCorp c/o Echo Global Logistics
600 W Chicago Ave, Suite 725
Chicago, lL 60654
3Td PARTY OR DROP SHIPMENTS:
1. IT IS THE SUPPLIER'S RESPONSIBILITY TO INFORM ECHO OF THE PACIFICORP PURCHASE ORDER NUMBER WHICH IS REQUIRED ON ALL
BILLS OF LADING. FAILURE TO LIST THE PO ON THE SHIPPING DOCUMENTS MAY RESULT IN SHIPMENT REFUSAL.
2. IT IS THE SUPPLIER'S RESPONSIBILITY TO INFORM ECHO OF THE CORRECT SHIPPING TERMS. ADOITIONAL FREIGHT COSTS FOR NOT
FOLLOWING THESE INSTRUCTIONS ARE THE RESPONSIBILIry OF THE SUPPLIER.
PLEASE DO NOT SHIP THE FOLLOWING IN CLOSED VANS OR TMILERS:
, PRODUCTS LONGER THAN 20 FEET
- PRODUCTS WEIGHING MORE THAN 2,OOO POUNDS
. PALLETS EXCEEDING 6,000 POUNDS
- BUNDLED PIPE, STEEL OR CONDUIT
- BOILER TUBING
. SOOTBLOWER FEED TUBES AND LANCES. CHEMICAL ITEMS CONTAINING HAZARDOUS MATERIAL
, NUVALLOY PIPE FOR BOTTOM ASH SYSTEMS
ALL HEAVY PRODUCTS MUST BE PACKAGED IN A MANNER THAT A FORKLIFT
COULD LIFT AND REMOVE EASILY.
ALL SHIPMENTS MUST DELIVER TO THE PACIFICORP PLANT BY 2:30 P.M.
MONDAY THROUGH FRIDAY ONLY - RECEIVING CLOSED ON WEEKENDS.
CALL THE PLANT'S RECEIVING AREA FOR EXCEPTIONS
DELIVERIES TO PACIFICORP LOCATIONS REQUIRE HARD HATS, STEEL
TOED SHOES, AND SAFETY GLASSES
Currency: USD
Item Material/Description Quantity UM Net Price Per UM Net Amount
10
20
30
1.00 EA
Manway Cover 12X16 P/N 0176503
Yoke & Bolts, P/N P/N 0176504
1.00 EA
'1.00 EA
364.00 1 EA
180.00 1 EA
123.00 1 EA
364.00
180.00
123.00
XPAcTFICoRP
PactfiCorp Procurement
825 NE Multnomah Street, Suite 1800
Portland, Orqon 97232
4500767643 Dated 09/30/2015 Page 3 of 9
1010112015 09:48:50
Purchase Order
Item Material/Description Quantity UM Net Price Per UM Net Amount
High Pressure Gasket,P/N 0173317
Total Net Value USD 667.00
Vendor rhall fumlrh tho Goodc and Servlcec spectlled above ln accordance wlth thls Purchale Order, lncludlng the provlrlont ret forth on the
face hereof and any other provlrlons altached to, lncorporeted lnto, or otherwlre made a pert of th|r Purchase Order.
PACIFICORP PURCHASE ORDER
TERMS & CONDITIONS
(Rev. April2015)
The terms and conditions issued with this purchase order shall be null and void in the circumstance where PacifiCorp and the Party to whom this purchase order is
issued have a valid written agreement (duly executed by the authorized representatives of both parties) to which the items in this purchase order are identified.
1. DEFINITIONS.
Supplier means the party identified as the vendor on the face of this Purchase Order. Company means PacifiCorp or any affiliates or subsidiaries whether direct or
indirect acting through the business unit specilied on the face of this Purchase Order. Contract means the Purchase Order of which these terms and conditions are a
part ('Purchase Ordef), all documents incorporated by reference under the Purchase Order, these terms and conditions themselves with any confidentiality or
non-disclosure agreement executed by Company and Supplier, and all exhibits and amendments to all such documents. "ltems" mean any goods or services to be
provided or performed by Supplier under the Conkact as defined above. 'Price" means the consideration to be paid by Company to Supplier under the Contract for
the ltems. The Price shall be exclusive of all taxes to be borne by Company arising out of Supplier's performance hereunder, including without limitation sales, use,
unless specifically stated otherwise. Local sales and use taxes in all states shall be paid by Supplier and invoiced as a separate line item. The Supplier is
responsible for all import or export duties and value-added taxes related to these units and all applicable parts.
2. BLANKETORDER.
lf the Purchase Order is designated by Company as a blanket order, Company shall be obligated to purchase only those quantities of ltems which it specifically
requests under release orders issued by Company to Supplier.
3. ACCEPTANCEOFORDER.
This Purchase Order for ltems shall be accepted by Supplier upon receipt of the Purchase Order. Any timely commencement of Supplier's performance hereunder
shall also be deemed to be an expression of Supplier's acceptance of this Order including these Terms and Conditions. No modification, alteration, or exception
made by Supplier to the terms of this Contract shall be a part of this Purchase Order unless agreed to in a writing executed by the authorized representatives of both
parties.
4. PR|CE.
The Price shall be as stated in the Purchase Order unless such price exceeds the lowest price at which Supplier is selling ltems or similar items to its other
customers as of the date of delivery to Company, in which case the lower price shall control. lf there is no price stated in the Purchase Order, the Price shall not be
higher than the most cunent charged or quoted Price to Company for such ltems by Supplier. lf there has been no previous charge or quotation by Supplier to
Company for ltems and if no price is set forth in the Purchase Order, Company shall have the right to return the ltems. Supplier shall pay the cost of return
transportation if Supplier charges a price which is in excess of the lowest price at which Supplier is selling ltems to its other customers as of the date of delivery to
Company. lf prior to delivery of the ltems, Company is able to purchase a portion or all of the ltems, or similar items of like quality, at a price which is less than the
Price, Company shall notify Supplier. Should Supplier fail to meet such lower price, Company may, at its option, purchase from the other source at the lower price,
and in that event Company and Supplier shall be relieved of their obligations under the Contract in respect of that portion of the ltems purchased from the other
source.
5. ACCOUNTING AND AUDITING.
Supplier shall keep accurate and complete accounting records in support of all cost billings to Company in accordance with generally accepted accounting principles.
Company or its audit representative shall have the right at any reasonable time or times to examine, audit, and reproduce the records, vouchers, and their source
documents which serve as the basis for compensation other than compensation which is fixed in amount by this Contract. Such documents shall be available for
examination, audit, and reproduction for three (3) years after completion or termination of this Contract. All results of these audits shall be kept confidential between
the two parties and their agents. Supplier shall assist Company with preparing necessary audit material and will allow Company to review any work papers prepared
by independent auditors as allowed by professional standards. Any over-collections shall be retumed within thirty (30) days from date of notice of overcharge. Audit
findings will be considered to be final for the period audited.
6. CREDIT REQUIREMENTS.
Supplier shall meet the requirements of any one or more of clause (i), clause (ii) or clause (iii) below: (i) Supplier maintains a senior unsecured debt rating from
Standard & Poor's of BBB- or better; (ii) if Supplier has no debt rating, Supplier meets ALL of the following credit standards: a) tangible net worth equal to ten times
the projected maximum exposure under this Contract, b) no change in the condition of its earnings, net worth, or working capital over the last 24 months which would
reasonably be anticipated to impair the Supplier's ability to meet its obligations under this Contract, and c) Supplier is not in default under any of its other agreements
and is current on all of its financial obligations, or (iii) Supplier shall post security reasonably satisfactory to Company. lf requested by Company, Supplier shall
within thirty (30) days provide Company with copies of its most recent annual and quarterly financial statements prepared in accordance with generally accepted
accounting principles.
7. UNIFORM COMMERCIAL CODE.
The Uniform Commercial Code as adopted by the State in which the ltems are delivered shall govem this Purchase Order, except as modified herein.
8. DRAWINGS-SPECIFICATIONS.PROPRIETARY INFORMATION-CONFIDENTIALITY-ADVERTISING.
Supplier shall be fully and solely responsible for obtaining product data adequate to design, manufacture, fabricate, construct and deliver ltems in compliance with
all requirements of the Contract. Company shall retain all rights to all such documents it provides or causes to be provided to Supplier. Supplier shall consider all
such documents to be confidential. Upon Company's request, Supplier shall promptly return to Company all such documents and copies thereof. Supplier shall not
advertise or publish the fact the Company has contracted to purchase ltems from Supplier, nor shall any information relating to the Purchase Order be disclosed
without Company's prior written permission. Unless otherwise agreed in writing, no commercial, financial, or technical information disclosed in any manner or at
any time by Supplier to Company shall be deemed secret or confidential.
9. DELIVERY.
The Supplier shall deliver ltems to Company on the date(s) indicated in the Purchase Order. lf Supplier fails to make delivery of any part of the ltems on the date(s)
indicated, the Company may terminate and pursue other remedies. All shipments shall be delivered F.O.B. to the destination designated by Company in the
Purchase Order, and risk of loss shall remain with Supplier until the ltems are received by Company, its agent or consignee regardless of whether Company has
made full payment for the items. A packing slip must accompany each such shipment, and if a shipment is to a consignee or agent of Company, a copy of the
packing slip shall be forwarded concurrently to Company. lf no such packing slip is sent, the count or weight determined by Company or its agent or consignee
shall be final and binding on the other parties. Supplier, or the canier it uses to transport ltems, whichever is applicable, shall (a) maintain a "satisfactory" safety
rating from the U.S. Department of Transportation and shall provide Company with written proof of such rating on request if the carrier is a motor canier, and (b)
maintain the insurance coverages and policy amounts required by Section 20, unless a larger amount is required by any federal, state, or local regulatory agency,
in which event such larger amount shall be maintained.
10. WARRANTY.
Supplier warrants that for a period of two years after the delivery of or performance of the ltems, the ltems will (a) be of merchantable quality; (b) be fit for the
Company's specified purposes; (c) be of high quality, and be free from defects in material and workmanship; (d) comply with the most stringent of Company's or
Supplier's specifications, performance guarantees and requirements; and (e) comply with all nationally recognized codes and established industry standards. All
Items shall be sold by Supplier to Company free and clear of any liens and encumbrances. Supplie/s wananties and guarantees shall survive inspection, delivery,
and acceptance of the ltems and/or payment by Company. lf the ltems do not conform to any of these warranties then, at Company's option, Supplier shall repair or
replace the defective ltems, F.O.B. Company's designated site at Supplier's expense, or in the case of services, re-perform the services at Supplier's expense.
Supplier shall be responsible for all expenses and damages which Company incurs, including, but not limited to, incidental and consequential damages. The
foregoing wananties and obligations shall also apply to the ltems supplied by Supplier in such repair, replacement, or performance. Supplier shall immediately
transfer to Company the benefit of any manufacturer's warranties.
1'1. RESTOCKING FEE.
ln the event that Supplier supplies incorrect or defective ltems or fails to deliver ltems on or before the delivery date, or this order is terminated for cause, Company
shall have no obligation to pay restocking or similar fees to Supplier. Moreover, in no event shall Company be required to pay restocking or similar fees to Supplier
unless a mutually acceptable fee is agreed to in a writing executed by the authorized representatives of both parties.
12, CHANGES.
Company shall have the right to make changes (including additions and/or omissions) from time to time in the ltems, any specifications and/or drawings which are a
part of the Contract. Company shall give Supplier written notice of any such change. Any claims by Supplier for adjustments in price or delivery terms after its
receipt of Company's change order must be asserted in writing to Company not more than ten (10) days after such receipt by Supplier, or such claim shall be
deemed to have been waived.
13. PAYMENTS AND INVOICES.
Unless othenrvise specified in the Purchase Order or in a separate written instrument signed by Company, no invoice shall be issued by the Supplier prior to the
shipment or performance of the ltems, and no payment shall be made prior to receipt of such ltems and approval of an invoice for such ltems. Company may
withhold any payment otherwise due under the Contract to the extent necessary to offset any claim Company may have or assert against Supplier.
14. INSPECTION AND PRE.WARRANry PERIOD DEFECTS.
Company may inspect any ltems ordered hereunder during their manufacture, construction or preparation at reasonable times and shall have the right to inspect
such ltems at the time of their delivery and/or completion. ltems fumished hereunder may at any time prior to the beginning of the warranty period stated above in
Section 1 0 be rejected for defects revealed by inspection or analysis even though such ltems may have previously been inspected and accepted. Such rejected
Items may, at Company's option, be returned to Supplier for full refund to Company, including removal, shipping and transportation charges.
15. PATENT, TRADE SECRET, AND COPYRIGHT INFRINGEMENT.
Supplier shall settle or defend, at its sole expense and shall indemnify and save Company harmless from any costs, expenses, losses, and damages resulting from
any claims, suits, or proceedings brought against Company which are based upon a claim that the ltems, or any part thereof infringe on any patent, trade secret or
copyright in case the ltems or any part thereof fumished hereunder constitute infringement. Supplier shall, at its sole expense and at its option (1) procure for
Company the right to continue using the goods or part thereof; (2) replace the same with substantially equal but non-infringing ltems, (3) modify the ltems so as to
become non-infringing; or (4) upon written approval of Company, remove the ltems at Supplier's sole expense and refund the Purchase price and the
transportation, installation, and removal costs thereof.
16. COMPLIANCE WITH LAWS AND REGULATIONS.
Supplier warrants that all goods, services and labor provided pursuant to this Purchase Order have been provided in compliance with all applicable
laws and regulations, and all applicable executive, judicial and administrative orders, as each may be applicable to the work performed hereunder, and
based on total anticipated dollar value of this Purchase Order. Wlthout limiting the generality of the foregoing, Supplier specifically warrants its
compliance with the Foreign Corrupt Practices Act and the Unlted Kingdom Bribery Act 2010. Supplier and any subcontraclors shall also ablde by the
requirements of 41 CFR 55 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their
status as protected veterans or individuals with disabilities, and prohibit discriminatlon against all individuals based on their race, color, religion, sex,
sexual orlentation, gender identity or national origin. Moreover, 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. Supplier and any subcontractors shall also abide by the requirements of Executive Order 1 1 246,
as amended, to develop and implement a written affirmative action program (AAP) and Executive Orders 1 1625 and 131 70 (utilization of disadvantaged
business enterprises) and the Small Business Act.
17. CONFLICT MINERALS.
Supplier shall provide to Company information on the content of products, manufactured or contracted to be manufactured by Supplier for Company, that utilize or
provided in a form that will allow Company to verify compliance with Section 1502 of the Dodd-Frank Act (the U.S. Conflict Minerals Law) and will include evidence
of the origin or sources of the conflict minerals. The information will be submitted at or prior to the time of delivery of products in a form approved and/or designated
by Company from time to time. Supplier shall obtain Company's prior written consent before providing any products to Company that include conflict minerals
originated from the Democratic Republic of Congo or the nine adjoining conflict countries; Angola, Burundi, Central African Republic, the Republic of the Congo,
Rwanda, South Sudan, Tanzania, Uganda, and Zambia. Supplier shall maintain effective accounting procedures, internal controls and audit procedures necessary
to record the country and place of origin of all minerals included in products provided to Company, and to veriry compliance with this Section. Company shall be
permitted to audit such records as reasonably necessary to confirm Supplier's compliance with this Section. Supplier shall indemnify and hold Company harmless
for all fines, penalties, expenses or other losses sustained by Company as a result of Supplier's breach of this Section.
.I8. LIENS.
Supplier hereby waives its rights to any mechanic's lien or other lien under any applicable statutes or otherwise for all ltems furnished in connection with the
Contract. Prior to Supplier's receipt of each payment under the Contract, Supplier shall deliver to Company all affidavits, lien releases, materialmen's certificates
and other documents required by Company under the applicable lien laws. lf at any time there shall be evidence of the existence of any such lien or claim for work
done or ltems, materials, services or equipment fumished by Supplier or any other party in connection with the Contract, the Company may use money then due or
to become due under the Contract to discharge such lien or satisfy such claim and may credit such amounts against the amounts due or to become due to the
Supplier.
19. INDEMNITY.
Supplier shall indemnify and hold Company and its employees, directors, officers and agents harmless from and against all expenses, costs, charges, damages,
claims, suits, losses, fines, penalties or liabilities (including attorney's fees) of every kind whatsoever by reason of, arising out of, or in any way connected with
accidents, occurrences, injuries, or losses to, or of any person, or property including, without limitation thereto, loss of use of property, which may occur before or
after delivery of the completed ltems to Company, or resulting from, in whole, or in part, the sale, design, preparation, manufacture, fabrication, construction,
completion, transportation, delivery, failure to deliver, and/or installation of the items and/or services, excluding only such as are caused by the sole negligence of
Company, but not excluding situations where the Company's negligence consists of failure to discover a condition caused or permitted to exist by the Supplier or
any of its subcontractors. lf Supplier is not responsible for any installation or services or supervision related to installation under the Contract, Supplier shall have no
liability under this Section 19 for any of the above resulting entirely from acts or omissions in the performance of such installation. Supplier, in any indemnification
claim hereunder, hereby expressly and without reservation waives any defense or immunity it may have under any applicable Worker's Compensation laws or any
other statute or judicial decision, disallowing or limiting such indemnification where an employee of Supplier makes a claim against any indemnitee herein, and
Supplier consents to a cause of action for indemnity.
20. INSURANCE.
Supplier shall take out and maintain with a carrier or carriers having an A.M. Best lnsurance Reports rating of A-:Vll or better the following minimum insurance
coverage at its expense for the duration of the Contract (including all wananty periods thereunder) covering all of Supplier's obligations under the Contract: (a)
Workers Compensation - Statutory; (b) Employer's Liability - minimum single event limit of $1,000,000; (c) Commercial General Liability - with a minimum single
event limit of $1,000,000 and a $2,000,000 annual aggregate to protect against and from all loss by reason of injury to persons or damage to third party property,
including Supplier's employees and all third persons, and property of all third parties based upon and arising out of the negligent acts or omissions of the Supplier's
operations hereunder, including the operations of its subcontractors of any tier; (d) Professional Liability - covering damages arising out of negligent acts, errors, or
omissions committed by Supplier in the performance of the work or services provided under the Contract, with a liability limit of not less than $1 ,000,000 each claim.
Supplier shall maintain this policy for a minimum of two (2) years after completion of the work or services or shall arrange for a two year extended discovery (tail)
provisionifthepolicyisnotrenewed. Theintentofthispolicyistoprovidecoverageforclaimsarisingoutoftheperformanceofworkorservicesunderthis
Contract and caused by any error, omission, breach or negligent act for which the Supplier is held liable; (e) Business Automobile Liability - with a minimum single
limit of $1,000,000 for bodily injury and property damage with respect to Supplier's vehicles whether owned, hired or non-owned, assigned to or used in the
performance of the work; and (f) Umbrella Liability - with a minimum limit of $5,000,000 each occurrence/aggregate where applicable to be excess of the coverages
and limits required in Employers' Liability insurance, Commercial General Liability insurance and Business Automobile Liability insurance above.
lnsurance coverage provided on a "claims-made basis" shall be kept in effect for the longer of two years from the date of Company's initial commercial use of the
Items and for such other length of time necessary to cover liabilities arising out of the work or services provided under the Contract. All policies required by this
Contract shall include provisions that such insurance is primary insurance with respect to the interests of Company and that any other insurance maintained by
Company is excess and not contributory insurance with the insurance required hereunder. All required insurance policies shall not contain any provisions prohibiting
waivers of subrogation. None of the above insurance coverage shall be cancelable except upon thirty (30) days prior written notice to the Company and to all other
insured parties, and Supplier shall provide Company with a copy of any such cancellation notice immediately after Supplier's receipt of it. Supplier shall include
Company as an additional insured on all liability insurance. lf Supplier is subject to any no fault insurance requirements, it shall adhere to all applicable laws and
regulations pertaining to such no fault insurance. ln addition to the provisions of Section 19 above, in the event of a lawsuit or claim by an employee of Supplier or of
any of its subcontractors against Company, or any of Company's agents, officers, directors, or employees for any injury (including, but not limited to death) or
disease arising out of, related to, or claimed to have risen out of, or to have been related to the employee's employment in the performance of the Contract,
Supplier, on behalf of itself and its Workers' Compensation carrier, hereby transfers and assigns to Company and shall cause each of its subcontractors to transfer
and assign to Company any and all liens or subrogation rights that it or their insurers may have for Workers' Compensation benefits paid to the employee. On
Company's request, Supplier shall provide certificates of insurance and renewals evidencing insurance.
21. TERMINATION, SUSPENSION OR DELAY.
Company shall have the right at any time to terminate, suspend, or delay the Contract in whole or in part by prior written notice to Supplier. lmmediately after receipt
of such notice, Supplier shall stop all performance hereunder except as may otherwise be directed by Company. ln the case of termination of the Contract, Supplier
shall then transfer to Company, in accordance with Company's directions, and whether located on the job site, in a vendor's or manufacturer's facility or elsewhere,
all materials and all information accumulated, specifically prepared or acquired by Supplier for use in relation to the design, development, manufacture, assembly,
shipment, installation, operation, maintenance or repair of the ltems and all supplies, shop drawings, work in process, equipment, machinery or parts prepared,
acquired or used by the Supplier in connection with such ltems and for which the Supplier is to be reimbursed hereunder, and all working drawings, sketches,
specifications, and other information accumulated, prepared or acquired by Supplier with respect to such ltems. The Supplier shall, if directed by the Company and
to the extent stated in the notice of termination, suspension or delay, make all efforts necessary to preserve the work in progress and to protect the ltems whether
still at Supplier's manufacturing facilities or in transit to Company's facilities. lf Supplier is not then in default in the performance of any of its obligations hereunder,
and if Supplier has taken reasonable steps to mitigate its damages resulting from such termination. Company shall pay to Supplier, as Supplier's sole and exclusive
remedy for termination under this Section 21 , to the extent not already paid to Supplier an amount equal to: (a) reasonable and documented costs incurred by
Supplier in accordance with the Contract prior to Suppliers' receipt of notice of termination, plus, (b) the reasonable and documented costs and charges incuned by
Supplier in winding up its activities under the Contract prior to the effective termination date, provided, however, that the amounts listed in (a) and (b) of this Section
2'l plus prior payments to Supplier shall in no event exceed the Contract Price. lf the suspension or delay is not followed by a termination of the Contract, Company
shall have no obligation or make any payments to Supplier after the effective date of the suspension or delay other than, to the extent not already paid to Supplier,
Supplier's reasonable and documented costs incurred in accordance with the Contract prior to such effective date which are not reduced or eliminated by
appropriate mitigative action by Supplier. Before Company resumes performance under the Contract following such suspension or delay, Supplier and Company
shall negotiate in good faith on the adjustments, if any, which may be required in payments to Supplier or in the Contract Price to avoid inequities either to Supplier
or Company.
22, DEFAULT.
lf the Supplier: (a) becomes insolvent; (b) files a petition under any chapter of the bankruptcy laws or is the subject of an involuntary petition; (c) makes a general
assignment for the benefit of its creditors; (d) has a receiver appointed; (e) should fail to make prompt payment to any subcontractors or suppliers; or (0 fails to
comply with any of its material obligations under the Contract, the Company may, in addition to its rights under Section 13 above, at its option either cure the default
at Supplier's expense or terminate the Contract after first giving Supplier three (3) days written notice to cure such default. lmmediately after such termination,
Company may; (i) take possession of the ltems wherever they may be located and in whatever state of completion they may be together with all drawings and other
information necessary to enable Company to have the ltems completed, installed, operated, maintained and/or repaired; (ii) pay to Supplier any amount then due
under the Contract after taking full credit for any offsets to which Company may be entitled; (iii) conhact with or employ any other party or parties to finish the ltems;
and (iv) collect from the Supplier any additional expense, losses or damage which Company may suffer.
23. WORK ON PREMISES.
Before Supplier provides any services or work on Company's premises, Supplier will examine the premises and any specifications or other documents fumished in
connection with the ltems and satisfy itself as to the condition of the premises and site. No allowance shall be made in respect of any error as to any of the
foregoing on the part of Supplier. Supplier shall at all times keep the premises free from accumulations of waste material or rubbish. At the completion of installation
of the ltems, Supplier shall leave the premises and the ltems broom-clean.
24. SUPPLIER'S PERSONNEUDRUGS, ALCOHOL, AND FIREARMS.
Supplier shall employ in the performance of the work only persons properly qualified for the same. Supplier shall at all times enforce strict discipline and good order
among its employees and the employees of any sub-Supplier of any tier. Supplier shall not permit or suffer the introduction or use of any firearms, illegal drugs, or
intoxicating liquor upon the work under this Contract, or upon any of the grounds occupied or controlled by Supplier. Supplier shall immediately remove from the
wo* any person found to be in violation of the above restriction and such person shall not again be employed in the performance of the work herein without the
express written consent of Company.
25. CRIMINAL BACKGROUND CHECK, IDENTIW VERIFICATION AND RELATED SCREENING.
lf requested by the Company, the Supplier shall conduct, at Supplier's cost and expense, criminal background checks for the current and past countries of
residence on all employees, agents, subcontractors or independent contractors and the employees, agents or representatives of subcontractors or independent
contractors, that have electronic or physical access to work or Company site. At a minimum, a social security number verification and seven-year criminal
background check, including felony or misdemeanor convictions involving: (a) violence to persons/property; (b) thefUfraud; (c) drug/alcohol; or (d) traffic/other are
required. Employment history, education verification, and professional certifications may also be required by the Company. All background checks will be
conducted in accordance with federal, state, provincial, and local laws, and subject to existing collective bargaining unit agreements or other agreements, if any.
Supplier shall not allow persons who have not met the Company's criteria to perform work, unless Supplier has received assent from Company. Supplier shall
supply a certification that meets Company's criteria for each Supplier employee, agent or representative and for employees, agents or representatives of any
subcontractor or independent contractor employed by Supplier. Supplier shall ensure that employees, agents, subcontractors or independent contractors and the
employees of subcontractors or independent contractors sign an appropriate authorization form prior to criminal background checks being conducted,
acknowledging the background check is being conducted and authorizing the information obtained to be provided to Company.
Supplier shall have and ensure compliance with a substance abuse/drug and alcohol policy that complies with all applicable federal, state and/or local statutes or
regulations. ln addition, if requested by Company, Supplier shall ensure a drug test, at Supplier's cost and expense, for all employees, agents, subcontractors or
independent contractors and the employees, agents or representatives of subcontractors or independent contractors, that have electronic or physical access to
work or Company site has been completed prior to assignment at Company. Such drug test shall be a five (5) Panel Drug Test, which should be recognizable at
testing labs as a "SamHSAS panel at 50NG - THC cut-off'.
Certilication of assigned worker compliance with the criminal background check and the drug test shall be submitted to Company as described in the Company
Criteria form. For any assigned worker who has had a recent background check or drug test, then "recent" shall be defined as less than six (6) months prior to the
assignment date. Such recent background check or drug test shall be documented per the previous paragraph. Supplier shall ensure Department of Transportation
compliance, including but not limited to valid drivers license, equipment inspections, hours of service and all appropriate documentation for any assigned worker
who may drive while on assignment to Company. Supplier wanants that Supplier, its employees, agents, Subcontractors or independent contractors and the
employees of Subcontractors or independent contractors have met the Company's criteria or received assent from the Company and are in compliance with
Supplier's substance abuse/drug and alcohol policy. lt is understood and agreed that Company may review Supplier's policies, background checks and related
documentation upon request, subject to applicable federal, state and/or local statutes or regulations. Company may also request that Supplier provide an ongoing
and updated list of persons that have been denied access to Company work or site.
26. BUSINESS ETHICS.
Supplier, its employees, agents, representatives and Subcontractors shall at all times maintain the highest ethical standards and avoid conflicts of interest in the
conduct of work for the Company.
27, INDEPENDENTCONTMCTOR.
Supplier is acting as an independent contractor, and the manner and means of conducting the work which is a part of the ltems will be under Supplier's sole control
subject to compliance with all of the terms of the Contract and to the continuing right of inspection by Company's representatives. Supplier shall fully comply with all
applicable employer and liability laws and Worker's Compensation acts of each state or political subdivision in which the ltems are to be constructed or located.
28. NON-WAIVER. The failure of Company to insist upon strict performance of any of the provision of the Contract or to exercise any rights or remedies
provided thereunder, or Company's delay in the exercise of any such rights or remedies, shall not release Supplier from any of its responsibilities or obligations
imposed by law or by this Purchase Order and shall not be deemed a waiver of any right of Company to insist upon strict performance of this Contract.
29. ASSIGNMENT.
Supplier may not assign the Conhact or any right thereunder without the prior written consent of Company and any assignment without such consent shall be void.
Company may assign the Contract to any of its parent, divisions, affiliates, or subsidiary companies that agree to be bound by the terms and conditions, and
applicable appendices or exhibits set forth herein.
30. ENTIREAGREEMENT.
The Contract sets forth the entire agreement between Supplier and Company on the subjects covered herein. No terms, conditions, understanding or agreement
purporting to modify or vary the terms of the Contract shall be binding unless made in writing and acknowledged by Supplier and Company. Any terms and
conditions any other purchase order, release order, acknowledgment, invoice or other form issued by Supplier which conflicts in any way with the terms and
conditions of this Contract are superseded by this Contract.
31. SEVERABILITY.
ln the event that any words, phrase, clause, sentence or other provision of the Contract shall violate any applicable statute, ordinance or rule of law in any
jurisdiction in which it is used, such provision shall be ineffective to the extent of such violation without invalidating any other provision of the Contract.
32, GOVERNING LAW.
Except where Company's job site is located in a state other than the State where the goods are received and its laws with respect to mechanics liens, workers'
compensation and other employer-employee relations matters and/or local taxation otherwise require, the Contract and all the performance thereunder shall be
govemed by and construed in accordance with the laws of the State where the goods are received. The parties agree that the United Nations Convention on
Contracts for the lntemational sale of goods shall not apply to this Contract. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES
HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS AGREEMENT. EACH PARry FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS
BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
33. FORUM.
The local, state and federal courts having jurisdiction over the location where the ltems are to be used by Company shall have exclusive jurisdiclion over all litigation
related to the Contract.
34. ALLOCATION.
ln the event of a partial failure of Supplier's sources of supply, Supplier will first meet all of Company's requirements hereunder prior to any allocation among other
customers.
35. APPLICATION FOR SERVICES.
These standard terms and conditions shall apply to the provision of all goods and the performance of all services included in or contemplated by this Purchase
Order. However, in the event that any term or condition of this Purchase Order cannot reasonably be applied to the performance of any service included in or
contemplated by this Purchase Order, such term or condition shall be deemed inapplicable thereto.