2023-07-12 Revised CC Packet - Laserfiche WebLink

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TERMS AND CONDITIONS FOR PROPOSAL TMI COATINGS, INC.TERMS AND CONDITIONS FOR PROPOSALright of rejection, and the Owner shall be conclusively presumed to have accepted the coating, color, gloss and texture and any other deficiencies which would have been discovered by a detailed inspection. A.CONDITIONS OF AGREEMENT. Unless otherwise expressly provided in the proposal or contract toVariations due to scaffold location and overspray are normal in the industry and will not be cause for which these terms and conditions are a part, TMI Coatings, Inc. ("TMI") has based its proposal price upon rework. b. Film thickness application will be as specified in TMIҨs proposal and measurement of film thickness shall the Owner furnishing at its expense the job conditions listed below. The required job conditions and be performed as in SSPC-PA 2, Revision 11/1/82, using a magnetic gauge. The Owner shall compensate OwnerҨs responsibilities are as follows: 1.TRANSPORTATION CONDITIONS. There shall be direct access by truck to and upon a clear,TMI for the cost of taking or repairing damages caused by test samples. well-drained site over an all-weather, hard surfaced road.c.Coatings will be air cured in accordance with manufacturerҨs specifications and the Owner will be responsible for venting any enclosed spaces, including tank interiors, for 7 days at 70° F to remove fumes. 2. LABOR CONDITIONS. Working periods shall be eight hours per day and 40 hours per week under usual labor conditions, utilizing painters and general laborers without jurisdictional disputes between or hiring of If a force heat cure is required to expedite completion, additional cost of forced cure shall be added to the operating engineers, electricians or teamsters. The job site shall be available to TMI for overtime work contract price. 3. Insulation inspection shall be accomplished by the Owner as follows: should TMI deem it necessary or desirable. TMIҨs price is based upon the ability to perform on an open shop basis.a.Prior to application of any insulation, Owner shall approve a sample panel for surface appearance, 3. WORKING CONDITIONS. There shall be safe and clean working conditions in compliance with federal, thickness, variation, and design adequacy. The sample shall be sprayed at the same ambient temperature state and local safety, environmental and air pollution laws and ordinances. Unless specifically agreed at which the work is to be performed. If schedule delays cause a change in climate conditions after the sample is submitted, the Owner shall approve a new sample or make allowances for actual job site otherwise in writing in this proposal, there shall be no interference with TMI of its work area by other trades and the Owner shall provide TMI reasonable access to the work area and reasonable setup and storage conditions of wind, humidity, and temperature. areas.b.Insulation thickness may vary but average thickness will not be less than minimum specified on the contract. 4.HAZARDOUS MATERIALS AND SPECIFIED MATERIALS. TMI assumes no risk of hazardous materials (which shall be deemed to include, without limitations, asbestos, PCBs, lead paint, heavy metal c. The Owner shall inspect insulation immediately after application begins each day and if no objections are paint, petroleum products, radioactive materials, harmful fumes, other pollutants, and materials raised then, insulation shall be deemed to have been accepted. d. The maximum operating temperature for normal urethane foam is 190° F and the Owner shall raise or contaminated by any of these things) at the site unless otherwise stated within this proposal. TMI has not lower the temperature of the insulated tank as necessary from ambient to desired temperature over a included additional costs associated with the presence of hazardous materials. Concerning soil conditions, TMIҨs bid is based on the assumption that if the soil analysis of heavy metal increases after and due to minimum of a 48 hour period. TMI reserves the right to install Ñtemp-tabsÒ at our discretion. Owner assumes TMIҨs work beyond the current federal permissible level of 1,000 ppm, TMIҨs sole responsibility will be to responsibility for maintaining operating temperature and assumes all liability in the event the temperature limitations for the insulation used are exceeded. scrape the topsoil and place it in Owner-provided dumpsters to be disposed of at OwnerҨs cost. The Owner shall comply with all applicable federal, state and local governmental requirements relating to notification, e. An acceptable application is based on 90% adhesion of the urethane foam. monitoring, survey, evaluation, detection, remediation, removal and disposal of hazardous materials 4.Coatings over foam are a commercial application, defined as appreciably pinhole-free. Substantially pinhole-free application is available at additional cost. Pinhole-free steel coatings depend on steel (hereinafter ÑSubstance RequirementsÒ). The Owner shall provide TMI with written evidence of compliance preparation, substrate grinding and other necessary preparation work other than sandblasting and is not and results of all Substance Requirements. TMI may rely upon the OwnerҨs representations and warranties regarding hazardous substances and OwnerҨs compliance with Substance Requirements. TMI shall have included unless otherwise specified in TMIҨs proposal. no duty to identify, detect, evaluate, remediate, remove, or dispose of any hazardous materials. If TMI at 5. Damage caused by an inspection will be repaired at the OwnerҨs expense as an ÑextraÒ to the contract amount. any time has reason to believe that hazardous materials are present at the work site, TMI may demand that the Owner, at OwnerҨs sole expense, perform appropriate evaluation and monitoring of suspected hazardous materials and provide written results to TMI. TMI shall have the right to remove its employees D. PRICE ADJUSTMENTS. The contract price and schedule shall be equitably adjusted to compensate TMI for its additional costs (with reasonable markup) and delay incurred as a result of any of the following: from the work site until such evaluation and results are made. If hazardous material is present, TMI shall receive an extension of time and an equitable adjustment in the contract price in its favor. All material and 1. Any breach of contract by the Owner. product specifications are those of the Owner, and TMI shall not be responsible for any consequences of 2.Concealed or unknown conditions encountered in the performance of the work at variance with the the installation of specified materials or products. If no materials are specified and TMI selects materials for conditions indicated by the drawings, specifications, or Owner-furnished information or differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided the work, TMI has no duty to investigate or test for compatibility of proposed materials with existing materials. To the fullest extent permitted by law, the Owner shall defend, indemnify and hold harmless TMI for in this Agreement. from any and all penalties, fines, actions, liabilities, damages and costs (including reasonable attorneysҨ 3.Events beyond the control of TMI, including without limitation, acts of God, earthquakes, floods, high winds, terrorism, vandalism, labor disputes, fire, unusual delay in deliveries, casualties, unusual weather, fees and expert fees) arising from or relating to hazardous materials at the project site, use of specified materials or products, or work performed as requested by Owner or the enforcement of this paragraph. TMI or changes in law and rules of government. shall not be responsible for any hazardous materials that may be stored or exist within the work of TMI, and 4. Any additional work ordered or requested by the Owner. 5. Unless otherwise specified in this proposal, TMIҨs bid includes only one mobilization/demobilization. In the Owner hereby releases and discharges TMI from any and all claims, causes of action, suits, demands addition to the contract price and any other monies due TMI, TMI is entitled to collect a minimum of 10% of for arbitration, and liability (including claims for subrogation) relating to the actual, alleged, or threatened discharge, dispersal, release, or escape of hazardous materials during performance or at any time the total price of TMIҨs work on this project for each subsequent mobilization/demobilization if TMI is not thereafter, however caused, or to hazardous materials at the project site or use of specified materials or permitted to complete all work in one mobilization/demobilization. The price adjustment shall include an increase for the following: products. 5. SITE UTILITIES. The Owner shall make available drinking water, sanitary facilities and water to be used a. Labor and supervision payroll costs plus all applicable taxes, insurance and other fringe benefits. by TMI pressure washers. The Owner shall make adequate electrical power (460 or 230 volt and 110 volt b.Material costs at TMIҨs invoice cost for material, fuel, tax and freight, including costs for returned or damaged material and freight charges, less any returned credit allowed by the manufacturer. power) available within 100 feet of TMIҨs work area. c. Cost of equipment furnished to the job by TMI computed at Professional Coating Management, Inc.Ҩs 6. HEAT CONDITIONS. The Owner shall maintain heat at 60° F minimum temperature in any enclosed facilities in which TMIҨs work will be performed. At TMIҨs sole discretion, coatings in unenclosed area may weekly rental rates. not be applied at temperatures less than 60° F, nor in excessive humidity, nor in high wind unless stated d.Employee travel expenses between the job site and TMIҨs home office, along with related expenses, including hotels and meal costs. otherwise within this proposal. TMI shall not be responsible for providing temporary heat to satisfactorily perform work.e. Subcontractor costs. 7.SURFACE PREPARATION AND CLEAN-UP CONDITIONS. This proposal excludes surfacef. Freight and transportation charges for equipment. g. Insurance and bond costs. preparation and coating of inaccessible and/or difficult to reach areas (i.e. back to back angles, top side beam flange, under equipment) unless otherwise specified herein. Prior to, during and after TMIҨs h.Construction overhead charged as a percentage of direct labor in accordance with TMIҨs regular performance of TMIҨs work, the Owner, without delaying or interfering with TMIҨs work, shall (unless accounting practices. otherwise included in TMIҨs proposal):i. Markup of 25% on all of the above changes and any other costs incurred by TMI. j. Such other costs and damages as TMI may incur. a. Remove from all surfaces to be coated all contaminants such as oil, grease, soluble salts, chemicals, man-hole covers, pipes, cathodic systems, dirt and debris, together with internal and other obstructions which interfere with TMIҨs performance of its work.E. ESCALATION. Quoted prices are based on labor rates and material prices in effect as of date of the proposal. Material price or labor rate increases will be invoiced as they occur on the following basis: b. Perform all grinding, welding or patch work on surfaces to be worked on by TMI including honeycombs, roughness, blow holes, etc., sufficient to prepare and maintain a smooth surface acceptable for coating in 1. For each 1% increase in average labor rate on the job, or fraction thereof, an additional sum of 0.7% of the sole opinion of TMI. contract price will be invoiced. 2. Increases in material prices will be invoiced at actual cost plus a 25% markup. Upon request, TMI will c. Provide dumpsters and disposal for TMIҨs project refuse, including sandblast abrasive. furnish average labor rate and material prices as a basis for escalation. d. The Owner must clean, sanitize and inspect the equipment, work area and areas near the work area prior to putting these areas back into service. TMI is not responsible for any contaminants, material, debris, tools, substance or other object not cleared or cleaned from the equipment, work area and areas near the F.LIMITED WARRANTY. For one year after installation, TMI warrants only to the original Owner that materials have been applied or installed as required by this contract. TMI will repair defective work of which work area. 8.WORK AREA CONDITIONS. The Owner assumes sole responsibility for loss, damage, or injury toTMI is notified in writing within a period of one year after application, provided the work has not been property (including without limitation vessel internals, light gauge metal equipment, automobiles or damaged by Owner or used for a purpose for which it was not intended. TMI is not responsible for conditions beyond its control including but not limited to hydrostatic pressure, vapor, moisture, frost, ice, mechanical equipment) caused by ordinary sandblasting, solvent, insulation or coating operation and groundwater, water and/or moisture pressure or emissions, capillary action, soil or slab stability, substrate further assumes responsibility for the removal (or if acceptable to TMI the covering and protection) of any property from the work area prior to TMIҨs commencement of work. Unless specifically stated in writing cracking, the absence or presence or condition of vapor or moisture barriers and/or weather barriers, fork otherwise on this proposal, TMIҨs proposal is based upon open abrasive blasting without containment of truck or other traffic damage, or use for which the work is not intended. Coatings are not considered a failure if concrete or old existing coatings are attached to the delaminated materials; this is considered a dust and sandblast debris. Overspray will exist to some extent on nearby areas. It is impractical to cover or clean surrounding areas in industrial applications. Owner to be responsible for removal of obstructions and substrate failure. TMI SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING items not to be coated including coils, grating, antennas, etc. The Owner warrants that any concrete to be IMPLIED WARRANTIES OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICU- LAR PURPOSE, AND OWNER AGREES THAT ITS SOLE REMEDY FOR DEFECTIVE WORK OR ANY coated or treated shall be free of any materials or conditions (including, without limitation, moisture, curing agents, finishing, additives, and spalling) that may cause or contribute to failure of specified materials DAMAGE RESULTING FROM SUCH DEFECT, WHETHER OR NOT CAUSED BY THE NEGLIGENCE applied to it. TMI shall not be liable for any failure caused by or contributed to by the existence of such OF TMI, SHALL BE REPAIRED BY TMI. OWNER FURTHER AGREES THAT IN NO EVENT SHALL TMI conditions and shall not be responsible for correcting such conditions unless specifically agreed to BE LIABLE FOR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE OR LOST REVENUES, LOSS OF REPUTATION, COSTS otherwise in writing. Unless specifically stated in writing otherwise on this proposal, TMIҨs proposal is based upon removal (to the extent specified on the proposal) of thin-film coatings of the generic type typically OF FINANCING, LOST BUSINESS, BUSINESS INTERRUPTION, DAMAGE TO THE STRUCTURE, utilized for the service type of the structure. Additional costs for removal of thick-film coatings, coal tar DAMAGE TO OR LOSS OF CONTENTS, GROUND OR GROUNDWATER CONTAMINATION, DAMAGE RESULTING FROM SPILLAGE OR LEAKAGE, OR DAMAGE RESULTING FROM epoxy, 100% solids epoxy, polyurethane or polyurea and other difficult to remove coatings will require additional compensation per Section D Price Adjustments. Owner warrants that existing coatings which will POLLUTION OR RELEASE OF HAZARDOUS MATERIALS. THE FOREGOING WARRANTY IS THE remain are compatible with materials to be applied by TMI and have adequate adhesion to adhere to the ONLY WARRANTY MADE BY TMI AND IS EXPRESSLY MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES, GUARANTEES OR REPRESENTATIONS, WHETHER EXPRESSED OR IMPLIED. substrate upon application of subsequent coat(s) required by this proposal. The Owner shall be responsible THIS WARRANTY RUNS BETWEEN TMI AND THE OWNER ONLY; IT IS NOT ASSIGNABLE OR for identifying, locating, and relocating pipelines and utilities, unless otherwise provided in this Agreement. The Owner shall remove all persons (other than employees of TMI or TMIҨs subcontractors), food products, TRANSFERABLE TO A SUCCESSOR, ASSIGN OR ANOTHER OWNER, AND ANY SUCH ASSIGN- and any other property sensitive to chemicals related to TMIҨs work or else shall otherwise fully protect all MENT IS VOID AND UNENFORCEABLE. such persons, food products and property from chemicals related to TMIҨs work. The Owner is responsible for its employees and other persons that are on its premises where odorous and non-odorous chemicals G. PAYMENT TERMS. TMI shall invoice the Owner monthly for labor and materials furnished during the are going to be applied. Such notice by the Owner shall be given to allow individuals that are chemically preceding 30 days. Invoices shall be paid by the Owner within 30 days after submission. No retainage shall be withheld from payments unless otherwise stated in this proposal. Payment withheld by the Owner shall sensitive to leave the area prior to TMI applying such chemicals. Both TMI and the Owner agree that the bear interest at the rate of 18% per annum from the due date or, if less, the maximum rate permitted by law. parties expect that residual odors shall seep into adjacent areas. TMI is not liable for any damages, including injuries, death, or property damages caused by chemicals related to TMIҨs work used during installation. To the extent that the Owner fails to adhere to the above provisions, concerning the application H. DISPUTES AND APPLICABLE LAW. If the project locale is Minnesota, then any disputes between TMI and the Owner not required to be resolved in federal court shall be resolved in Dakota County, Minnesota. by TMI of chemicals, and such failure by the Owner results in injuries or damages that subject TMI to claims of liability, to the fullest extent permitted by law, the Owner agrees to fully indemnify TMI for all expenditures Unless prohibited by statute, this Agreement shall be interpreted and enforced in accordance with the laws incurred by TMI to defend against and/or settle such claims, including attorneysҨ fees, expert fees, costs, of the State of Minnesota or applicable federal law without regard to conflicts of law principles. This Agreement will be deemed to have been made and entered into in the State of Minnesota for all purposes. disbursements, and expenses. 9. PROTECTION OF WORK. The Owner shall protect and be responsible for protection of lining material, If TMI elects to consult an attorney or take any type of legal action to enforce this Agreement or defend insulation, coating, and other work during application or installation through completion and after against Owner claims, TMI is entitled to recover all resulting attorney's fees, expert fees, disbursements, completion from fire and physical damage, including damage by other trades.expenses, and arbitration and court costs from Owner. 10. SECONDARY DIKES. Industry guidelines often require secondary dikes or similar protection to contain spilled or leaked chemicals and/or to prevent ground contamination at a potentially future date. It is the sole I. COMPLETE AGREEMENT AND MODIFICATIONS. This document and other documents incorporated responsibility of the Owner to determine the desirability of such protection and, if necessary, to provide it herein by reference constitute the complete, entire and integrated understanding of the parties and supersedes all prior and/or contemporaneous negotiations, representations or agreements, either written prior to commencement of the work. In no event shall TMI incur liability to the Owner or any other party, on the theory of negligence or otherwise, for failing to advise or warn the Owner or any other party of the need or oral. This Agreement may be modified only by written amendment signed by both parties and may not or advisability of such protection, for failing to provide such protection, or for proceeding with the work in the be amended in any other manner. If any provision of this Agreement is determined to be unenforceable or invalid, that provision shall be deemed severed from this Agreement and the remaining portions of this absence of such protection. Agreement shall be enforced with the same force and effect as if the severed portion had never been a part 11.DESIGN. The Owner is responsible for the design of the project. Without limitation, the Owner is responsible for determining whether capacities, including dike capacities, are adequate, whether the work of this Agreement. will meet regulations, whether design of the project is adequate for rain or snow run-off, and whether there J. TERMINATION. In the event of default by the Owner or stoppage of work for a period of thirty days by is proper drainage. The Owner is responsible both during and after performance for drainage, including drainage of precipitation, and for preventing ÑfloatingÒ of tanks. The Owner shall be responsible for slippery direction of the Owner, or any other public authority having jurisdiction, TMI may terminate this Agreement conditions of dike lining and for any injuries that result.without further written notice and the Owner shall pay to TMI all sums due under this Agreement together with TMIҨs anticipated profits and all other related damages, expenses, and legal fees. 12. INFORMATION. The Owner shall provide TMI with all information relevant to the performance of TMIҨs work and shall designate a representative who shall be fully acquainted with the work to be performed and who has authority to give approvals on behalf of the Owner and can render decisions promptly and furnish K. INSURANCE AND TAXES. TMI shall maintain in force during performance of this Agreement WorkersҨ information promptly. TMI is entitled to rely upon information provided by the Owner as being complete and Compensation Insurance and Public Liability Insurance as required by law. The Owner shall carry at its expense Ñall riskÒ BuilderҨs Risk insurance upon the entire project site to the full insurable value thereof on accurate. a replacement cost basis. This insurance shall include the interests of the Owner, TMI, and TMIҨs B. NOTIFICATION AND MOBILIZATION FOR COMMENCEMENT OF WORK. The Owner shall give TMI subcontractors and suppliers, and shall insure against Ñall risksÒ of physical loss or damage caused by fire, extended coverage perils, flood, earthquake, theft, vandalism, malicious mischief, and other insurable at least 30 days advance written notification of the date upon which the Owner desires TMI to commence work. The Owner shall unload and store in a secure area materials that arrive at the job site before TMI perils. The Owner shall purchase and maintain such insurance as will insure itself, TMI and TMIҨs workers. If the work is not ready to begin when TMIҨs crew arrives or delays occur once the work has subcontractors and suppliers against loss of use of property due to fire and other hazards, however started, the contract price will be equitably adjusted in TMIҨs favor in accordance with paragraph D below.caused. The Owner and TMI waive all rights against each other and the contractors, subcontractors of any other, consultants, agents, and employees of any of them for damages caused by fire or other perils to the C. INSPECTION AND PERFORMANCE STANDARDS. The following inspection standards will be used to extent covered by the BuilderҨs Risk insurance required to be obtained by the Owner by this Paragraph or judge the quality of TMIҨs work:other property insurance applicable to the work of TMI or the property of the Owner except such rights as the Owner and TMI have to the proceeds of such insurance. The policies of insurance shall provide such 1. Sandblasting will be inspected using The Society for Protective Coatings (SSPC) Visual Standards for Abrasive Blast Cleaned Steel (VIS 1-89) photographic standard as the basis for accepting or rejecting waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a sandblasting work. The Owner shall commence inspection immediately after TMI begins sandblasting person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay for the insurance and whether or not the person or entity had an using photographic SSPC VIS 1-89 standards. If the Owner fails to inspect sandblasting immediately after insurable interest in the property damaged. TMI shall pay all unemployment compensation taxes and social TMI begins, the Owner will be conclusively presumed to have waived inspection of surface preparation and the cost of any rework resulting from later inspection will be at the OwnerҨs expense.security taxes as may be required by law. 2. Coatings inspection will be accomplished by the Owner as follows: a. Color, gloss and texture will be inspected by the Owner immediately upon the start of final coat and any difference in interpretation shall be immediately resolved before further work proceeds. Failure or refusal of as:2018 Proposal Terms & Conditions the Owner to inspect when TMI begins application of the final coat will constitute a waiver of the OwnerҨs SPF #156, REV 9/18