EXHIBIT 10.12
ORIGINAL
MASTER SERVICE CONTRACT
THIS CONTRACT, made and entered into this 23 day of MAY, 1995, by and
between CNG TRANSMISSIONS CORPORATION, a corporation of ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ 263022450, hereinafter referred to as "CNGT" and
INDUSTRIAL DATA SYSTEMS, INC. DBA IDS TECHNICAL SERVICES hereinafter referred to
as "Contractor.
WORK TO BE PERFORMED
In consideration of the service or work which has been performed and
is to be performed by Contractor, as herein contemplated, and in consideration
of the payments which have been made and are to be made by CNGT therefor, it is
contemplated that Contractor will, from time to time, be requested by CNGT,
through its duly authorized representatives, to perform certain work or furnish
certain services to CNGT. The jobs contemplated are any such work or services
performed by Contractor in the scope of its usual business. Contractor will
begin each particular job at such time as is agreed upon between Contractor and
CNGT's representatives and, once having commenced any such job, Contractor will
perform all such services or work in a good and workmanlike manner and to the
full and complete satisfaction of CNGT. It is specifically understood that all
services and work shall be performed subject to all the terms and conditions of
this Contract, and this Contract shall become effective and operative when
Contractor first commences the performance of any job or the rendering of any
particular service.
II.
INDEPENDENT CONTRACTOR
It is expressly understood that Contractor is an independent
contractor and that neither Contractor nor Contractor's principals, partners,
employees, or subcontractors, are servants, agents or employees of CNGT. As an
independent contractor, Contractor agrees to comply with all laws, rules and
regulations, whether federal, state or municipal, including, but not limited to
laws, rules and regulations designed to protect the environment which, now or in
the future, may be applicable to all services or work performed hereunder or
applicable to Contractor's business, equipment or employees engaged in or in any
'manner connected with its performance hereunder. Further, Contractor, as an
independent contractor, assumes full responsibility for loss of or damage to its
materials, machinery, equipment or other property while performing hereunder,
provided that Contractor's responsibility for loss of or damage to materials
which are the subject of a sale to CNGT shall cease upon delivery of such
material
to CNGT's well site or other job site, or any other point of delivery as
specified by CNGT. Contractor specifically releases CNGT, its agents, servants,
invitees, employees, co-lessees, co-owners, contractors and subcontractors, from
liability for damage to any of Contractor's material, machinery, equipment or
other property, except where such damage is caused solely as a result of CNGT's
negligence.
III.
INSURANCE-AND WORKERS, COMPENSATION
contractor agrees to procure, maintain and amend, at its sole
expense, policies of insurance in the amounts no less than those outlined below,
which may from time to time be changed in accordance with CNGT's request as its
needs and requirements change:
Coverages.................................. Limits
Comprehensive General Liability
Bodily Injury..........................$1,000,000 Each Person
.......................................$1,000,000 Each Occurrence
.......................................$1,000,000 Aggregate Products
.......................................$1,000,000 Aggregate Operations
Property Damage........................$1,000,000 Each Occurrence
.......................................$1,000,000 Aggregate Operations
.......................................$1,000,000 Aggregate Protective
.......................................$1,000,000 Aggregate Products
Contractual Liability........................$1,000,000 Aggregate
Automobile Liability
(Owned, non-owned, hired)
Bodily Injury..........................$1,000,000 Each Person
.......................................$1,000,000 Each Occurrence
Property Damage........................$1,000,000 Each Occurrence
Contractor shall furnish to CNGT, either on forms supplied by
Contractor's insurer or by CNGT, certificates of insurance evidencing the fact
that proper insurance as set forth above has been secured and no work shall be
commenced unless and until the certificates are on file with CNGT. Such
insurance policies and certificates must provide that at least thirty (30) days'
prior written notice will be mailed to CNGT if the policies are materially
changed or canceled and, upon receipt of such notice, CNGT shall have the right
to promptly cancel this Contract without waiting for the period provided in
Section VII below. Said policies shall further contain endorsements naming CNGT
as an additional insured under said policies and waive the underwriters' rights
of subrogation in favor of
2
CNGT, its affiliates, subsidiaries, parent, co-owners, co-lessees and joint
venturers.
Contractor shall comply with the Workers' Compensation laws of the
state in which the work is to be performed or the services are to be rendered
and shall, before commencing work hereunder, furnish CNGT (a) a certificate,
issued by the workers' compensation officer or department of the state in which
the work is to be performed or the services are to be rendered, that Contractor
is entitled to all rights and benefits of the Workers-' compensation laws of
such state or (b) a certified copy of the insurance policy under the terms of
which %, Contractor's workers' compensation liability is insured under the laws
of such state or a certificate of such insurance.
IV.
INDEMNITY
Contractor shall be responsible, and CNGT shall never be liable, for
property damage suffered by any person, firm or corporation, or personal injury
to or death of any person, including, but not limited to, Contractor, any of
Contractor's employees or the employees of Contractor's subcontractors, and
Contractor agrees to indemnify and hold harmless CNGT, its affiliates,
subsidiaries, parent corporation, co-owners, co-lessees and joint venturers
against any and all claims, demands or suits (including, but not limited to,
claims, demands, or suits for property damage, bodily injury, illness, disease,
death, or loss of services, property or wages) which may be brought against CNGT
by any party, including, but not limited to, any third party, any employee of
Contractor, subcontractor of Contractor, or by any employee of subcontractor of
Contractor, or the legal representative or successor of any such employee, in
anywise arising out of or incident to the work to be performed under this
Contract by Contractor, or Contractor's subcontractors, or Contractor's presence
in, on or about CNGT's property or job site, irrespective or whether such
claims, demands or suits are based on the relationship of master and servant,
third party, or otherwise, and even though occasioned, brought about, or caused
by, arising out of or resulting from Contractor's work, or its acts, activities,
or presence on any location or structure, or travel to and from such location or
structure or by or from any other means, relationship, or cause, without
limitation whatsoever; provided, however, that nothing herein shall obligate
Contractor to indemnify CNGT when such claims, demands or suits arise from the
sole and exclusive negligence of CNGT.
By way of illustration, but not by way of limitation, with respect
to whom shall be considered an employee, any person who is on Contractor's
payroll and receives, has received or is entitled to receive payment from
Contractor in connection with the work performed or to be performed hereunder
shall be the employee of Contractor, even though CNGT reimburses Contractor for
the amount paid or to be paid such employee. Contractor further agrees to
investigate, handle, respond to, provide defense for, and defend any such claim,
demand, or suit at its sole expense, and agrees to bear all other costs and
3
or services rendered hereunder prior to the time this Contract is terminated.
Notwithstanding anything herein to the contrary, CNGT shall have the option but
not the obligation, to declare this Contract terminated effective immediately in
the event Contractor fails to comply with any of the provisions hereof,
including, but not limited to Items III, IV, IX and X. It is expressly agreed
that Contractor's duties and obligations arising under Item IV shall survive
cancellation, termination or expiration of the Contract.
VIII.
CONFLICT
Should the parties hereto enter into any future formal written
contract especially prepared to provide for a particular job to be done by
Contractor, then in the event any term of such contract conflicts with the terms
of this Contract, the terms of this Contract shall prevail with respect to such
conflict. No parole agreement of whatsoever nature entered into between CNGT's
representative or representatives and Contractor shall ever be deemed to alter
or affect the provisions of this Contract.
IX.
FAIR AND EQUAL EMPLOYMENT
Contractor executes simultaneously with this Contract, and agrees to
maintain in a current status during the life of this Contract, the Equal
Employment Opportunity Compliance Certificate which is supplemental to CNGT
Transmission Corporation contracts, purchase orders and sales agreements.
X.
SAFETY
Contractor and CNGT expressly recognize the fact that the
Legislative body or bodies of the state or states in which the work is to be
performed or services are to be rendered and the Congress of the United States
of America have enacted laws relating to minimum safety standards for
Occupational Safety and Health and that governmental agencies have adopted and
will hereafter adopt and modify regulations under those laws. Included, without
limitation, are the Occupational Safety and Health Act of 1970, as amended, (29
U.S.C.S. 651 et seq.) the Occupational Safety and Health Standards promulgated
thereunder at 29 CFR Part 1910 and the Safety and Health Regulations for
Construction at 29 CFR Part 1926. Contractor shall take all precautions
necessary for the safety of personnel engaged in the performance of the work or
the rendering of the services and shall comply in every respect with all
applicable laws and regulations in order to prevent accidents or injuries to
persons on, about or adjacent to the premises where the work is being performed
or the service is to be rendered. Contractor shall provide sufficient
supervision and training of its employees concerning all applicable
5
expenses related thereto, even if it is groundless, false or fraudulent, but
Contractor may make such investigation, negotiation and settlement of any such
claim, demand or suit as it deems expedient.
CNGT shall notify Contractor immediately of any claim, demand, or
suit that may be presented to it by any party, affording Contractor full
opportunity to assume the defense of such claim, demand, or suit, and to protect
CNGT and itself under the obligations of this Section.
V.
SUBCONTRACTING
In the event Contractor subcontracts any of the work to be performed
or services to be rendered hereunder, or contracts for the furnishing of any
services or material required to be furnished by a subcontractor, then such
Contracts shall contain releases of liability for damage to property of such
subcontractor, insurance and workers' compensation requirements, and a hold
harmless provision equivalent to Sections II, III and IV above. Unless such
Contracts contain such equivalent provisions, any personnel engaged and property
used in the furnishing of such services or work shall be deemed employees and
property of Contractor for the purpose of Sections II, III and IV set forth
above and for the purposes of all other provisions of this Contract.
VI.
LIENS
Contractor shall pay promptly any and all amounts owed by it for
work performed, services rendered, or materials furnished in connection with
jobs performed under this Contract so that no lien shall ever attach, or be
permitted to attach, to CNGT's property, whether real or personal, and
Contractor hereby indemnities CNGT for any and all such claims and liens. In the
event Contractor fails to secure a release of any such liens which may attach to
CNGT's property, CNGT shall have the right to set-off any amounts due Contractor
in order to obtain the release of said liens.
VII.
TERM
This Contract will continue in full force and effect until
terminated by either party so that Contractor may perform, from time to time,
such work and/or render such services as the parties mutually may agree: it
being understood and agreed that either party hereto may cancel this Contract by
giving the other party thirty (30) days' written notice of such cancellation,
but neither party hereto shall, by the termination of this Contract, be relieved
of its respective obligations and liabilities arising from or incident to work
performed
4
safety laws, rules and regulations, including but not limited to those referred
to above. When on CNGT's work location Contractor shall also comply with CNGT's
safety rules. In the event Contractor subcontracts any of the work to be
performed or services to be rendered hereunder, such contracts will contain
equivalent language to the above.
XI.
NOTICES
In the event of any accident involving herein Contractor, Contractor
agrees to immediately submit a written report of such accident to CNGT's
representative, and to notify the proper legal authorities.
All notices, reports and invoices other correspondence required or
made necessary by the terms of this contract shall be deemed to have been
properly served when received by the addressee at the address hereinafter
listed, via:
CNG TRANSMISSION CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:M.D. REASER
CONTRACTOR
Name: INDUSTRIAL DATA SYSTEMS, INC. DBA IDS TECHNICAL SERVICES
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇. ▇▇▇
▇▇▇▇ & ▇▇▇▇▇: ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN:T. E. DISEL
XIII.
APPLICABLE LAW
This Contract shall be governed by the applicable laws of the state
wherein the work contemplated hereunder is performed.
XIII.
SEVERABILITY
In the event one or more of the provisions contained in this
Contract shall be held, for any reason, to be invalid, void, illegal or
unenforceable in any respect, such invalidity, voidness, illegality or
unenforceability shall not affect the remaining provisions hereof, and this
Agreement shall remain unaffected and shall be construed as if such invalid,
void, illegal or unenforceable provision never had been contained herein.
6
XIV.
AUDIT
CNGT shall have the right to audit Contractor's records relating to
all work performed by or on behalf of Contractor for CNGT's account for any
calendar year within the thirty-six (36)-month period following the end of such
calendar year. This provision shall continue in full force and effect for a
period of thirty-six (36) months from the effective date of any termination of
this Contract.
XV.
WARRANTIES
In the event that Contractor hereunder primarily sells items,
equipment, supplies, etc. to CNGT with some support services incidentally
associated with the said sale, Contractor specifically warrants the
merchantability of the items being the subject of sale. Contractor warrants such
items to be free of defects. In instances where CNGT purchases from Contractor
certain items with specifications for a particular purpose and the requirements
are given to Contractor, the latter warrants fitness for the particular purpose
disclosed to Contractor.
IN WITNESS WHEREOF, the parties hereto have executed this Contract
as of the date first above written, and warrant, individually, that they have
the full right, power and authority to enter into this Contract on behalf of the
respective parties hereto. This Contract is intended to supplant in its entirety
all previous Master Service Contracts executed between the parties hereto.
WITNESS: CNG TRANSMISSION CORPORATION
/s/ M.D.REASER BY:
Its
WITNESS: INDUSTRIAL DATA SYSTEMS, INC
DBA IDS TECHNICAL SERVICES
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ BY:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its PRESIDENT
INDUSTRIAL DATA SYSTEMS INC.
WITNESS:
DBA IDS TECHNICAL SERVICES
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its PRESIDENT
7
EQUAL EMPLOYMENT OPPORTUNITY
COMPLIANCE CERTIFICATE
For purposes of this Equal Employment Opportunity Compliance
Certificate, the words "Contract", "Purchase order" or "Sales Agreement" shall
mean any agreement or arrangement between CNG Transmission Corporation,
hereinafter referred to as '"CNGT", and the Contractor - for the purchase or
sale of gas, materials, supplies, or services or for the use of real or personal
property, including lease arrangements, which, in whole or in part, are
necessary to the performance or any one or more contracts between CNG and the
United States of America or under which any portion of CNGT's obligation under
any one or more contracts is performed, undertaken, or assumed.
(A) Contractor is aware of and is fully informed of Contractor's
responsibilities under Executive Order 11246 and shall file
compliance reports as required by Section 203 of Executive
Order 11246 and otherwise comply with the requirements of such
Orders.
(B) Contractor shall be bound by and agrees to the following
provisions as contained in Section 202 of Executive Order
11246, to wit:
(1) The Contractor will not discriminate against any
employee or applicant for employment because of race,
color, religion, sex, age or national origin. The
Contractor will take affirmative action to ensure that
applicants are employed, and that employees are
employed, and that employees are treated during
employment, without regard to their race, color,
religion, sex, age or national origin. Such action shall
include, but not be limited to the following:
employment, upgrading, demotion, or transfer,
recruitment, or recruitment advertising; layoff or
termination; rates of pay or other forms of
compensation, and selection for training, including
apprenticeship. The Contractor agrees to post in
conspicuous places, available to employees and
applicants for employment, notices to be provided by the
contracting officer setting forth the provisions of this
non-discrimination clause.
(2) The Contractor will, in all solicitations and
advertisements for employees placed by or on behalf of
the Contractor, state that all qualified applicants will
receive
consideration for employment without regard to race,
color, religion, sex, age or national origin.
(3) The Contractor will send to each labor union or
representative of workers with which he has a collective
bargaining agreement or other contract or understanding,
a notice, to be provided by the agency contracting
officer, advising the labor union or workers'
representative of the Contractor's commitments under
Section 202 of Executive Order No. 11246 of September
24, 1965, and shall post copies of the notice in
conspicuous places available to employees and applicants
for employment.
(4) The Contractor will comply with all provisions of
Executive Order No. 11246 of September 24, 1965, and of
the rules, regulations, and relevant orders of the
Secretary of Labor.
(5) The Contractor will furnish all information and reports
required by Executive Order No. 11246 of September 24,
1965, and by the rules, regulations, and orders of the
Secretary of Labor, or pursuant thereto, and will permit
access to his books, records, and accounts by the
contracting agency and the Secretary of Labor for
purposes of nvestigation to ascertain compliance with
such rules, regulations and orders.
(6) In the event of the Contractor's noncompliance with the
non-discrimination clauses of this contract or with any
of such rules, regulations, or orders, this contract may
be canceled, terminated, or suspended in whole or in
part and the Contractor may be declared ineligible for
further Government contracts in accordance with
procedures authorized in Executive Order No. 11246 of
September 24, 1965, and such other sanctions may be
imposed and remedies invoked as provided in Executive
Order No. 11246 of September 24, 1965, or by rule,
regulation, or order of the Secretary of Labor, or as
otherwise provided by law.
(7) The Contractor will include the provisions of Paragraphs
(1) through (7) in every subcontract or purchase order
unless exempted by rules, regulations or orders of the
Secretary
2
of Labor issued pursuant to Section 204 of .Executive
Order No. 11246 of September 24, 1965, so that such
provisions will be binding upon each subcontractor or
vendor. The Contractor will take such action with
respect to any sub-contract or purchase order as the
contracting agency may direct as a means of enforcing
such provisions including sanctions or non-compliance:
Provided, however, that in the event the Contractor
becomes involved in, or is threatened with, litigation
with a sub-contractor or vendor as a result of such
direction by the contracting agency, the Contractor may
request the United States to enter into such litigation
to protect the interests of the United States.
(C) And further, pursuant to the rules and regulations, if the
value of the contract or purchase order exceeds $50,000 and
the Contractor has 50 or more employees, Contractor will:
(1) File, on or before March 31 of each year or within 30
days of accepting a new order, complete and accurate
reports on Standard Form 100 (EEO-1) with the appropriate
government agency (Section 1.7, Chapter 60, Title 41 of
the Code of Federal Regulations).
CERTIFICATION OF NONSEGREGATED FACILITIES
Contractor certifies that he does not maintain or provide for his
employees any-segregated facilities at any of his establishments, and that he
does not permit his employees to perform their services at any location, under
his control, where segregated facilities are maintained. He certifies further
that he will not maintain or provide for his employees any segregated facilities
at any of his establishments, and the he will not permit his employees to
perform their services at any location, under his control where segregated
facilities are maintained. Contractor agrees that a breach of this certification
is a violation of the Equal Employment Opportunity Clause in this agreement. As
used in this certification the term "segregated facilities" means any waiting
rooms, work areas, rest rooms and wash rooms, restaurants and other eating
areas, time clocks, locker rooms and other storage or dressing areas, parking
lots, drinking fountains, recreation or entertainment areas, transportation, and
housing facilities provided for employees which are segregated by explicit
directive or are in fact segregated on the basis of race, creed, color, or
national origin, because of habit, local custom or otherwise. He further agrees
that (except where he has obtained identical certifications from proposed
subcontractors or specific time periods) he will obtain identical certifications
from proposed
3
subcontractors prior to the award of subcontracts exceeding $10,000 which are
not exempt from the provisions of Equal Employment Opportunity Clause; that he
will retain such certification in his files; and that he will forward the
following notice to such proposed subcontractors (except where the proposed
subcontractor has submitted identical certifications for specific time periods).
NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENT FOR CERTIFICATIONS OF
NONSEGREGATED FACILITIES. A Certification of Nonsegregated Facilities, as
required by the May 9, 1967, order on Elimination of Segregated Facilities, by
the Secretary of Labor (32 Fed. Reg. 7439, May 19, 1967) must be submitted prior
to the award of subcontract exceeding $10,000 which is not exempt from the
provisions of the Equal Employment Opportunity Clause. The certification may be
submitted either for each subcontract or for all subcontracts during a period
(i.e., quarterly, semiannually, or annually). (1968 MAR.) (Note: The penalty for
making false statements in offers is prescribed in 18 U.S.C. 1001).
CONTRACTOR AND SUBCONTRACTOR LISTING REQUIREMENT
The Contractor agrees to comply with the requirements of Executive
Order 11701 and the rules and regulations issued thereunder, and that all
employment openings of the contractor which exist at the time of execution of
this contract and those which occur during the performance of this contract,
including those not generated by the contract and including those occurring at
an establishment of the contractor other than the one wherein the contract is
being performed by excluding those of independently operated corporate
affiliates, shall, to the maximum extent feasible, be offered for listing at an
appropriate local office of the States employment service system wherein the
opening occurs and to provide such periodic reports to such local office
regarding employment openings and hires as may be required: Provided, that this
provision shall not apply to openings which the Contractor fills from within the
Contractor's organization or are filled pursuant to a customary and traditional
employer-union hiring arrangement and that the listing of employment openings
shall involve only the normal obligations which attach to the placing of job
orders.
The Contractor agrees further to place the above provision in any
subcontract directly under this contract.
MINORITY BUSINESS ENTERPRISE
Executive Order 11625 provides that it is the policy of the
Government that minority business enterprises shall have the maximum practicable
opportunity to participate in the performance of Government contracts.
The Contractor agrees to use his best efforts to carry out this
policy in the award of his subcontracts in excess of $500,000 to the fullest
extent consistent with the efficient
4
performance of the contract. As used in the contract, the term "Minority
Business Enterprise" means a business, at least 50 percent of which is owned by
minority group members or, in the case of publicly owned business, at least 51
percent of the stock of which is owned by minority group members. For the
purposes of this definition, minority group members are Negroes,
Spanish-speaking American persons, American-Orientals, American-Indians,
American-Eskimos and American Aleuts. Contractors may rely on written
representations by subcontractors regarding their status as minority business
enterprises in lieu of an independent investigation.
EMPLOYMENT OF HANDICAPPED PERSONS
In accordance with Executive Order 11758, the Contractor certifies
that, in employing persons to carry out contracts entered into with CNG
Transmission Corporation, it will take affirmative action to employ and advance
in employment qualified handicapped individuals, defined as "any individual who
has a physical or mental disability which for such individual constitutes or
results in a substantial barrier to employment..-"
Contractor further certifies that it will obtain identical
certifications from proposed subcontractors prior to the award of subcontracts
exceeding $2,500 covering the procurement of personal property and nonpersonal
services (including construction).
INDUSTRIAL DATA SYSTEMS, INC.
DBA IDS TECHNICAL SERVICES
(Contractor)
DATE: 5-9-95 By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its PRESIDENT
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Street
HOUSTON, TEXAS 77073-6016
City, State, Zip
Tele. No: (▇▇▇) ▇▇▇-▇▇▇▇