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THIS CONTRACT is made this _____ day of ????, 1997, by and between the LARGE BINOCULAR TELESCOPE CORPORATION (LBTC), and YYYYYYY (the Supplier)
RECITALS:
WHEREAS, LBTC, an Arizona nonprofit corporation, is a collaboration between: The University of Arizona,Tucson, Arizona; the Italian astronomical community, which is represented by the Arcetri Astrophysical Observatory, Florence, Italy; the Research Corporation of Tucson, Arizona; The Ohio State University of Columbus, Ohio; and the LBT Beteiligungsgesellschaft, a consortium of German Astronomy Research Institutions. The broad purpose of LBTC is to carry out scientific research and education in astronomy by constructing and then operating the Large Binocular Telescope (LBT) as a facility at the Mt. Graham International Observatory, near Safford, Arizona (the "Project").
WHEREAS, the Large Binocular Telescope Project Office (LBTPO), as the authorized agent of the LBTC, is responsible for the design, procurement, and construction of the altitude/azimuth binocular telescope with two 8.4-meter mirrors.
WHEREAS, the Supplier YYYYYYY
CONTRACT:
NOW, THEREFORE, the LBTC and the Supplier agree as follows:
Article 1 - SCOPE OF WORK
Supplier shall perform the work (the "Work") described in the Statement of Work included under Attachment A, in compliance with all technical specifications and drawings referenced therein and in accordance with Supplier's proposal, which is attached hereto as Attachment C.
Article 2 - PAYMENT AND ACCEPTANCE
2.2 Progress Payments. Progress payments shall be made upon completion of each milestone as provided in the schedule included in Attachment B, within thirty (30) days of receipt by LBTC of:
(a) A completed application for payment signed by a responsible officer within Supplier's organization, warranting that the portion of the Work for which payment is sought has been completed according the specifications and has been tested and verified, and that all drawings and reports submitted are true and correct, and containing the following certification:
"I hereby certify that the attached invoice is correct and just, that payment therefore has not been received, and that the invoice is submitted with the knowledge that the amount paid hereunder may be used as the basis of a claim by the LBTC."
(b) An invoice, submitted in duplicate, describing the milestone for which payment is sought.
(c) Any required Test Reports or other drawings or reports as described in the Statement of Work, prepared with respect to the portion of the Work for which payment is sought.
(d) A certification from LBTC's designated Technical Representative that it has reviewed the portion of the Work for which payment is sought, together with the results of any tests performed, and that the work appears to have been satisfactorily completed.
2.3 Acceptance and Final Payment. Final Acceptance of the Work shall be indicated by the LBTC only by a writing specifically stating that it constitutes "Final Acceptance" of the Work.
Final Payment of any final amounts due hereunder, shall be made only after Final Acceptance as provided herein.
In the event that the Work is, prior to final payment, determined by LBTC to be faulty in any way, and the Supplier does not promptly correct the defect pursuant to the Warranty set forth herein, LBTC shall be entitled to either (i) retain the Final Payment and apply it against any damages and expenses sustained by LBTC as a result of the defect; or (ii) retain the Final Payment as liquidated damages if the LBTC determines in good faith that it is impracticable to accurately calculate the amount of such damages and expenses, given the effect of the discovered defect on the progress of the Project as a whole.
Article 3 - SUPERSEDING EFFECT
This contract, together with all attachments, supersedes all written or oral agreements, and constitutes the entire agreement between the parties hereto.
Article 4 - INTERPRETATION
In the event of any conflict or inconsistency between the terms of this Contract and the
terms of an attachment hereto or any document referred to herein or in the terms of any
attachment thereto, the terms of this Contract shall prevail and govern the interpretation
thereof.
Article 5 - AMENDMENT
This Contract and the attachments hereto shall not be deemed or construed to be modified,
amended or waived, in whole or in part, except by written agreement duly executed by the
parties to this Contract.
Article 6 - SUBCONTRACTS
No contract shall be made by the Supplier with any other party for furnishing any portion of the Work without the written approval of the LBTC. Any subcontracts entered into by the Supplier shall be subject to the terms of this contract, including without limitation the warranty, cancellation, and indemnity provisions hereof.
Article 7 - ASSIGNMENT OF CONTRACT
The Supplier shall not assign this Contract in whole or in part except as otherwise provided herein.
Article 8 - ASSIGNMENT OF CLAIMS
Any right to payment hereunder may be assigned, provided that such assignment shall not be binding upon the LBTC until receipt of a copy of the assignment agreement is acknowledged and approved by the LBTC in writing.
Article 9 - CONTRACT ADMINISTRATION
The LBT Project Director, or designee, are the only individuals authorized to make the changes in or redirect the Work required by this Contract. Where LBTC's approval is required under the terms of this Contract, it shall, unless otherwise specified, be construed to mean the approval of the LBT Project Director or designee. In the event the Supplier effects any change at the direction of any other person, the change will be considered as having been made without authority, and no adjustment shall be made in the Contract estimated cost or delivery schedule as a result thereof.
Article 10 - TECHNICAL OVERSIGHT
LBT will, in writing, designate a Technical Representative(s) for each contract at the time of contract award. The Technical Representative will provide a direct interface between the LBTC and Supplier. All communications between the Technical Representative and the Supplier will be copied to the LBTPO. The Technical Representative will oversee the engineering management of the contract to ensure that the Components are manufactured accurately and perform satisfactorily, by, among other things, reviewing and approving drawings and plans developed by the contractors; providing quality control over the manufacturing process; supervising the testing and evaluating the finished Components. Supplier shall fully cooperate with the designated Technical Representative(s).
Representatives from the LBTC (including the Technical Representative(s) shall have the right, at all reasonable times, to come on the premises of the Supplier and inspect the Work being performed hereunder. Such visits shall include the right to discuss with appropriate personnel the Work being performed and the progress thereof. All such visits shall be at the expense of the LBTC.
Technical direction from the Technical Representative(s) to the Supplier, to be valid, shall:
In the event any such technical direction is interpreted by the Supplier to fall within the clause of this subcontract entitled, "Changes," the Supplier shall:
10.2 Not implement such direction but shall notify the LBTPO in writing of such interpretation within three (3) working days after receipt of such direction. Such notice shall include the reasons upon which the Supplier bases its belief that the technical direction falls within the purview of the "Changes" clause, and provide information on costs, schedule delays and any other contractual impact that would result from implementing the technical direction.
10.3 If, after reviewing the information presented pursuant to the Supplier's notification that the technical direction falls within the purview of the "Changes" clause, the LBTPO agrees that the direction is within the purview of the "Changes" clause and considers such change desirable, unilateral direction to proceed pursuant to the "Changes" clause shall be issued. If LBTPO determines that the technical direction does not constitute a "Change", it shall so notify Supplier, and Supplier shall proceed, pursuant to the technical direction, without an adjustment in the contract cost or delivery schedule.
11.2 If any such direction causes an increase or decrease in the cost of, or the time required for, performance of any part of the Work, whether or not changed by any such direction, or otherwise affects any other provisions of this Contract, an equitable adjustment shall be made in the (i) the Contract cost, delivery or completion schedule, or both; and (ii) other affected terms, and the Contract shall be modified accordingly.
11.3 Any claim for adjustment under this Article must be asserted within thirty (30) days from the date of receipt by the Supplier of the notification of change.
11.4 The LBTPO may require change order accounting when deemed necessary. The Supplier, for each change or series of related changes, shall maintain separate accounts, by job order or other suitable accounting procedure, of all incurred segregable, direct costs (less allocable credits) of work, both changed and not changed, allocable to the change. The Supplier shall maintain such accounts until the parties agree to an equitable adjustment for the changes order by the LBTPO.
11.5 Except as provided by Article 11.6 below, nothing contained in this Article shall excuse the Supplier from proceeding with the prosecution of the Work as modified.
11.6 Notwithstanding the provisions of Articles 11.1 and 11.2 above, the fixed-price cost of this Contract shall not be increased or considered to be increased except by specific written modification of the Contract indicating the new Contract fixed-price cost. Until this modification is made, the Supplier shall not be obligated to continue performance or incur costs beyond the established fixed-price cost.
Article 13 - GOVERNING LAW AND VENUE
This Contract shall be governed by and construed in accordance with the laws of the State of Arizona. In the event of a dispute arising out of this Contract, venue for any legal action, subject to the arbitration clause of this Contract, shall be in Pima County, Arizona.
Article 14 - INTELLECTUAL PROPERTY
In the event that either party shall create or invent, or cause to be created or invented, in connection with the Work, any process, material or device protected under any patent or copyright law ("Intellectual Property"), the parties agree that the other party shall have the right to use, at no expense to such other party, such Intellectual Property.
Article 15 -COMPLIANCE WITH INTERNATIONAL, FEDERAL, STATE, AND LOCAL LAWS
The Supplier shall comply with all International, Federal, State, Municipal and local laws, rules and regulations that may be applicable to this Contract and, at the request of the LBTC, the Supplier will furnish certificates to the effect that it has complied with said laws and regulations.
In the United States, the Supplier represents that it has complied and will continue to comply during the performance of this Contract with the provisions of the "Fair Labor Standards Act" 1938, as amended, and the "Occupational Safety and Health Act", with the "Americans with Disabilities Act of 1990" and with the regulations and standards issued pursuant thereto.
The Supplier, in all matters relating to this contract, shall be acting as an independent contractor. Neither the Supplier nor any of the persons furnishing materials or performing work or services which are required by this Contract shall be considered employees of the LBTC.
The Supplier, at its own expense, shall comply with such laws, and assume all obligations imposed by any one or more of such laws with respect to this Contract.
Article 16 - DISPUTE RESOLUTION
All claims, disputes or other matters in controversy (herein called "dispute") arising directly or indirectly out of or related to this Contract, or the breach thereof, whether contractual or noncontractual, and whether during the term or after the termination of this Agreement, shall be resolved exclusively according to the procedures set forth in this Article.
16.1 Mediation.
Neither party shall commence an arbitration proceeding unless such party shall first give a written notice (a "Dispute Notice") to the other party setting forth the nature of the dispute. The parties shall attempt in good faith to resolve the dispute by mediation under the Commercial Mediation Rules of the American Arbitration Association (AAA) in effect on the date of the Dispute Notice. If the parties cannot agree on the selection of a mediator within twenty (20) days after delivery of the Dispute Notice, the mediator will be selected by the AAA. If the dispute has not been resolved by mediation as provided above within sixty (60) days after delivery of the Dispute Notice, then the dispute shall be determined by arbitration.
16.2 Arbitration
16.2.2 Notwithstanding the foregoing, in the event the dispute is determined other than by the unanimous decision of three arbitrators, upon the application by either party to a court for an order confirming, modifying or vacating the award, the court shall have the power to review whether, as a matter of law based on the findings of fact determined by the arbitrator(s), the award should be confirmed, modified or vacated in order to correct any errors of law made by the arbitrator(s). In order to effectuate such judicial review limited to issues of law, the parties agree (and shall stipulate to the court) that the findings of fact made by the arbitrator(s) shall be final and binding on the parties and shall serve as the facts to be submitted to and relied on by the court in determining the extent to which the award should be confirmed, modified or vacated.
16.2.3 Costs and Attorneys’ Fees. If either party fails to proceed with mediation or arbitration as provided herein or unsuccessfully seeks to stay such mediation or arbitration, or fails to comply with any arbitration award, or is unsuccessful in vacating or modifying the award pursuant to a petition or application for judicial review, the other party shall be entitled to be awarded costs, including reasonable attorneys’ fees, paid or incurred by such other party in successfully compelling such arbitration or defending against the attempt to stay, vacate or modify such arbitration award and/or successfully defending or enforcing the award.
All applicable statutes of limitations and defenses based upon the passage of time shall be tolled while the procedures specified in this Section are pending. The parties will take such action, if any, required to effectuate such tolling.
Article 17 - STOP WORK ORDER
17.1 The LBTC may, at any time, by written order to the Supplier, require the Contractor to stop all, or any part of the Work for a period of 90 days after the order is delivered to the Contractor, and for any further period to which the parties may agree. The order shall be specifically identified as a stop work order. Upon receipt of the order, the Supplier shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within a period of 90 days after a stop work order is delivered to the Supplier, or within any extension of that period to which the parties shall have agreed, LBTC shall either:
18.2 After receipt of a Notice of Termination (whether with or without cause) and except as directed by LBTC, the Supplier shall immediately proceed as follows:
18.3.2 This amount may include reasonable cancellation charges incurred by the Supplier and any reasonable loss on outstanding commitments for personal services that the Supplier is unable to cancel, provided that the Supplier exercised reasonable diligence in diverting such commitments to other operations.
18.3.3 If the Supplier submits a termination settlement proposal and, upon review, the LBTC finds it to be acceptable, the LBTC shall pay the amount requested within sixty (60) days of submittal of the proposal. If the LBTC disagrees with the amount of the proposal, it shall negotiate in good faith with Supplier to reach a mutually agreeable settlement amount. In the event that such negotiation fails, the dispute shall be resolved according to Article 16.
19.1.2 "Supplies," means the end items furnished by the Contractor and related services required under this Contract. The word does not include "data."
19.1.3 "Customer Furnished Property," means property furnished by the LBTC for incorporation into the work hereunder.
19.2 Warranty
19.2.2 Any supplies or parts thereof corrected or furnished in replacement shall be subject to the conditions of Article 19 to the same extent as supplies initially delivered. This warranty shall run from the date of delivery of the corrected or replaced supplies.
19.2.3 The Supplier shall not be obligated to correct or replace supplies if the facilities, tooling, drawings, or other equipment or supplies necessary to accomplish the correction or replacement have been made unavailable to the Supplier by action of LBTC . In the event that correction or replacement has been directed, the Supplier shall promptly notify LBTC, in writing, of the non availability.
19.2.4 The Supplier shall also prepare and furnish to LBTC data and reports applicable to any correction required (including revision and updating of all affected data called for under this Contract) at no increase in the Contract price.
19.2.5 When supplies are returned to the Supplier, the Supplier shall bear the transportation costs from the place of delivery specified in the Contract (irrespective of the f.o.b. point of the point of acceptance) to the Supplier's plant and return.
19.2.6 All implied warranties of merchantability and "fitness for a particular purpose" are excluded from any obligation contained in this Contract.
19.3 Remedies Available to LBTC
(a) Require the Supplier, at the place of delivery specified in the Contract (irrespective of the f.o.b. point or the point of acceptance) or at the Supplier's plant, to repair or replace at the Supplier's election, defective or nonconforming supplies; or
(b) Make an equitable reduction in the Contract price.
19.3.2 LBTC shall notify the Supplier in writing of any breach of the warranty within 60 days after discovery of the defect. The Supplier shall submit to LBTC a written recommendation within 30 days as to the corrective action required to remedy the breach. After receipt of the Supplier's recommendation for corrective action, LBTC may, in writing, direct correction or replacement as provided in Section 19.3.1, and the Supplier shall, notwithstanding any disagreement regarding the existence of a breach of warranty, comply with this direction. If it is later determined that the Supplier did not breach the warranty, the Contact price will be equitably adjusted.
19.3.3 In no event shall the Supplier be liable to the LBTC for consequential damages resulting from general or particular requirements and needs of the LBTC, of which the Supplier, at the time of contracting, had no reason to be aware and which could not reasonably be prevented by cover or otherwise.
19.4 The warranty provided hereunder shall extend for the time period set forth in Attachment B, from the date of delivery. The Supplier shall, in addition, provide LBTC with a copy of any standard warranty which is normally offered on a commercial product deliverable under this Contract. This warranty shall be deemed to be incorporated by reference, and LBTC shall be entitled to all rights under such warranty in addition to the provisions of the warranty herein; however, such commercial warrant shall not be construed as limiting LBTC's rights under this Article.
Article 20 - INSURANCE AND INDEMNIFICATION
20.1 Insurance.
The Supplier shall, at its own expense, provide and maintain, with a carrier licensed and admitted in the country of manufacture, during the entire performance period of this Contract, at least the following kinds and minimum amounts of insurance (applicable to Suppliers in the United States; International Suppliers use equivalent) :
20.1.2 A policy of Comprehensive Liability Insurance, including automobiles (owned, non-owned, or leased), completed operations, products and contractual liability, with a combined single limit of not less than $1,000,000, for deaths, injuries, and property damage arising from one accident or occurrence.
20.2 Insurance Certificates and Endorsements.
Before commencing Work under this Contract, the Supplier shall furnish:
Such certificates and the endorsement shall provide that any cancellation or material change in the insurance policies shall not be effective
Also, such certificates and the endorsement shall
The Supplier agrees to permit the LBTC to examine its original policies, should the LBTC so request. Should the Supplier at any time neglect or refuse to provide the insurance required herein, or should such insurance be canceled, the LBTC shall have the right to procure same and the costs thereof shall be deducted from monies then due or thereafter to become due to the Supplier.
20.3 Indemnification. The Supplier agrees that it will indemnify, defend, and hold harmless the LBTC, its members, directors, trustees, officers, and employees, from and against any loss, cost, damage, expense or liability (including attorney's fees), suffered or incurred by any of them, arising out of or in connection with the performance of Work hereunder by the Supplier or any of its subcontractors, howsoever the same may be caused, excepting only such loss, cost, damage, expense or liability attributable to the sole negligence or willful misconduct of the LBTC, its trustees, members, directors, officers or employees.
Article 21 (For U.S. Companies only) - NON-DISCRIMINATION
The parties agree to be bound by applicable state and federal rules governing Equal Employment Opportunity and Non-Discrimination.
Article 22 - FORCE MAJEURE
22.1 Performance of a party shall be excused hereunder, and such party shall not be considered to be in breach hereof, in the event that such party's performance is rendered impossible or impracticable due to causes beyond the control of such party (or those acting on such party's behalf, such as, in the case of Supplier, its subcontractors or, in the case of LBTC, other suppliers of Project components) and not caused by the negligence or intentional act of such party, including such things as fires, floods, strikes, or embargos.
Article 23 - KEY PERSONNEL AND FACILITIES
23.1
The personnel and/or facilities listed in Attachment C are considered essential to the Work. Before removing, replacing, or diverting any of the listed or specified personnel or facilities, the Subcontractor shall notify the LBTC reasonably in advance and submit justification (including proposed substitutions) in sufficient detail to permit evaluation of the impact on this subcontract.
Article 24 - OFFICIAL NOTICES
Unless otherwise provided in this Contract, any communication provided or permitted hereunder shall be in writing and addressed to the party for which it is intended. The Supplier shall forward official notices to the LBTC as follows:
If to the Corporation:
LBT Project Office Steward Observatory The University of Arizona Tucson, AZ 85721-0065 USA Phone: 520 626-5231 Telefax: 520 621-9843E-Mail:
jhill@as.arizona.edu (LBT Director, Tucson Project Office)
salinari@arcetri.astro.it (LBT Deputy Director, Arcetri Observatory)
jslagle@as.arizona.edu (LBT Assistant Director, Tucson Project Office)
alampis@as.arizona.edu (LBT Program Manager, Tucson Project Office)
cevans@as.arizona.edu (Administrative Assistant, Tucson Project Office)
Notices to Supplier shall be directed to the address set forth in Attachment C.
In Witness whereof the parties hereto have executed this Contract with the effective date as shown on page one (1) of this document.
FOR SUPPLIER WXYZ, INC.
BY________________________________________
TYPED________________________________________
TITLE________________________________________
DATE ________________________________________
FOR THE LBT CORPORATION
BY________________________________________
TYPED________________________________________
TITLE________________________________________
DATE ________________________________________
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