Additional Terms and Conditions

The following Additional Terms and Conditions are incorporated into the Marine Construction Agreement by reference in said Agreement. Terms used herein which are defined in the Marine Construction Agreement (the "Construction Agreement") are used herein as defined therein.

1)      Insurance. Contractor shall maintain at Contractor's own expense, workers' compensation and employer's liability insurance, commercial general liability insurance, and automobile liability insurance to protect Contractor from claims for damages because of bodily injury, including death, and for damages to property that may arise both out of and during operations under this Agreement. Customer shall also maintain general liability insurance to protect Customer from claims for damages due to bodily injury, including death, and to damages to property , with Contractor named as additional insured. Contractor shall receive notice of termination of such insurance.

2)      Supervision. Customer agrees that the supervision of the Work performed under this Agreement is under the exclusive direction of the Contractor, and Contractor shall have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the work. Customer shall not interfere with the Work, nor cause additional work to be carried on without the written consent of the Contractor. All of the Work shall be done by the Contractor or subcontractors in direct contract with the Contractor.

3)      Termination. 

a).  Termination by Customer. If the Contractor, through no fault of the Customer, fails to materially comply with the provisions of the Agreement; or disregards ordinances, regulations, or orders of a public authority, the Customer shall provide written notice to Contractor identifying its claim of such failure to comply as a default. The Contractor shall have fifteen (15) days to cure the default. In the event that a cure for such default by its nature would require more time to cure (such as correction of a non-conforming construction item) then the Contractor may have additional time to cure as may reasonably be needed, so long as the Contractor commences with the cure and diligently pursues such cure to completion. Upon expiration of the time to cure, if the Contractor has not reasonably cured the default, the Customer may provide the Contractor a fifteen-day (15) written notice of its intention to terminate the Construction Agreement. If the Contractor does not reasonably cure the default within such period, the Customer may terminate the Agreement. The Customer shall not be entitled to consequential damages, punitive damages or delay damages and Customer knowingly and voluntarily waives any right to such damages.

b). Termination by Contractor. If the Customer, through no fault of the Contractor, fails to fulfill its obligations under this Agreement, the Contractor shall provide written notice to Customer identifying its claim of such failure to comply as a default. The Customer shall have fifteen (15) days to cure non-monetary defaults and five (5) days to cure monetary defaults. In the event that a cure for a non-monetary default by its nature would require more time to cure, then the Customer may have additional time to cure a non-monetary default as may reasonably be needed, so long as the Customer commences with the cure and diligently pursues such cure to completion. Upon expiration of the five (5), fifteen (15), or additional period as described herein, if the Customer has not reasonably cured the default, the Contractor may (i) continue to suspend all work, (ii) terminate the Agreement and recover from the Customer (a) payment for the retail cost of the Work incurred up until the date of such termination, along with any other related fees, expenses and costs and (b) an amount that would compensate the Contractor for its lost opportunity to obtain a reasonable profit on the balance of the Work (i.e. lost profits). Such amounts for lost profits shall be determined at the time of termination as a sum equal to twenty-five percent (25%) times the balance of the retail cost of the Work plus labor which has not been completed. If the Contractor suspends or terminates the Work, the Customer shall be obligated for all costs reasonably incurred by the Contractor associated with such suspension or termination (i.e. work needed to secure the jobsite, clear the jobsite, supervision, etc.). The Contractor shall not be entitled to consequential damages, punitive damages or delay damages and Contractor knowingly and voluntarily waives any right to such damages.

4)      Indemnification and Hold Harmless.

a)    Indemnification: The Customer agrees to indemnify, defend, and hold harmless the Contractor, its officers, directors, employees, agents, and assigns from and against any and all claims, demands, actions, liabilities, losses, damages, judgments, costs, and expenses (including, without limitation, reasonable attorneys' fees and court costs) arising out of or in connection with any injury, loss, or damage to any person or property caused by, resulting from, or arising out of the performance of the work under the Agreement, except to the extent that such injury, loss, or damage is caused by the sole negligence or willful misconduct of the Contractor, or from any breach o this Agreement by Customer.

b)    Scope: This Indemnification and Hold Harmless clause shall apply to any and all claims, demands, actions, liabilities, losses, damages, judgments, costs, and expenses that may be asserted by Customer or any third party, including but not limited to subcontractors, suppliers, employees, agents, or other parties in connection with the construction Work at the Project Address.

c)    Limitation of Liability: In no event shall the Contractor be liable for any indirect, incidental, consequential, special, or punitive damages, including but not limited to lost profits, arising out of or in connection with the performance of the Work under this Agreement, even if the Contractor has been advised of the possibility of such damages, or for any damages in excess of the Project Price.

5)        Survival. The provisions of paragraphs 7 and 8 of the Construction Agreement, paragraph 4 of these Additional Terms and Conditions and any other provisions hereof or thereof which must survive the termination of the Construction Agreement to have effect shall survive termination of the Construction Agreement.