CONTRACT
FOR
TURNKEY DESIGN/BUILD
CONSTRUCTION AND RELATED SERVICES
between
WEBVAN GROUP, INC.
and
BECHTEL CORPORATION
2
CONTRACT
FOR
TURNKEY DESIGN/BUILD
CONSTRUCTION AND RELATED SERVICES
THIS CONTRACT ("CONTRACT") is dated the 8th day of July, 1999, for reference
purposes only, by and between Webvan Group, Inc. (formerly known as Intelligent
Systems for Retail, Inc.), a California corporation ("WEBVAN"), and Bechtel
Corporation, a Nevada corporation ("BECHTEL").
1.0 THE PROJECT
1.1 The project ("PROJECT") consists of the location, selection,
evaluation, design, development, construction, start-up and testing of up to
twenty-six (26) distribution center warehouse facilities ("DC'S") to be located
in various cities to be determined by Webvan throughout the United States and
the design, engineering, procurement, assembly, installation, start-up, testing
and calibration of materials handling and distribution equipment and systems and
all other materials, equipment and systems (including, without limitation, food
production, refrigeration and specialized heating, ventilation and air
conditioning equipment and systems) necessary for the operation of each DC in
the manner specified in the applicable Contract Documents (defined in Section
2.5) (collectively, the "OPERATING EQUIPMENT"). The provision of all such
services with respect to any DC is referred to herein as the "DEVELOPMENT" of a
DC. The Development of any particular DC is referred to herein as a "DC
PROJECT".
1.2 Each DC Project will be described more particularly in the
drawings, plans and specifications to be prepared by Bechtel. Webvan, however,
shall be solely responsible for the design and installation of [*]
(collectively, the "WEBVAN Systems"). Prior to Substantial Completion (defined
in Section 2.5), but after Bechtel has assembled and installed all Operating
Equipment for a DC Project, Bechtel shall notify Webvan that the materials
handling and distribution system at such DC is ready for start-up testing. No
later than ten (10) days after Webvan's receipt of such notice, Webvan shall
install the Webvan Systems [*] at such DC and shall conduct such testing as
reasonably required to confirm that each item (both individually and in concert
with other items) of the materials handling and distribution equipment and
systems installed at the DC meets the applicable functionality specifications
provided in the Contract Documents for such DC Project and to confirm that such
materials handling and distribution system properly operates at the volume and
through-puts specified in the Notice to Proceed for such DC Project
(collectively, the "PERFORMANCE STANDARDS").
1.3 The term of this Contract shall commence as of the Effective Date
(defined in Section 8.12) and shall expire on the third (3rd) anniversary of the
Effective Date, unless extended by the written agreement of Webvan and Bechtel.
Notwithstanding the expiration of the term of this Contract, Bechtel shall
continue thereafter to perform all Services (defined in Section 2.0) to achieve
Final Completion (defined in Section 3.2) of all DC Projects for which a Notice
to Proceed (defined in Section 2.0) has been executed in accordance with the
applicable Contract Documents (defined in Section 2.5).
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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2.0 BECHTEL'S SERVICES
When requested by Webvan, Bechtel shall perform or cause to be performed for the
Project the services and items generally described below (collectively, the
"SERVICES"). Notwithstanding anything to the contrary in this Contract, Bechtel
shall not perform any of the Services unless and until a fully executed notice
to proceed ("NOTICE TO PROCEED") for specified Services in the form attached
hereto as Appendix 2.0 has been entered by Webvan and Bechtel, and Webvan shall
have no obligation to pay for any Services performed by Bechtel which are not
specifically authorized in a Notice to Proceed executed by Webvan. All Services
performed by Bechtel for the Project shall be classified as within one or more
of Sections 2.1 through 2.7 of this Section 2.0.
2.1 Program Management.
Based on Webvan's program and criteria for the Project, Bechtel shall prepare
and submit for Webvan's approval a "DEVELOPMENT PLAN" (which shall initially be
based upon Webvan's existing DCs located in Oakland, California and Atlanta,
Georgia) of preliminary proposals and recommendations regarding Project concept,
development strategy, architectural and design concepts, space requirements and
adjacency relationships, number and functional responsibilities of personnel,
special equipment and systems, human and material flow patterns, governmental
approval strategies, construction schedule requirements, construction budget
requirements, and other matters regarding the Development of the DC Projects,
including, but not limited to:
2.1.1 Preparation of a preliminary assessment of the Project budget
taking into account the activities contemplated for the Project.
2.1.2 Consultation with Webvan's independent consultants and Webvan
concerning the Project and development of Project plans, drawings and
specifications.
2.1.3 Assistance with utility optimization and sourcing, as requested,
to develop alternative methods to reduce utility costs and ongoing operation of
DC's.
2.1.4 Development of cost control systems for the Project, including
regular monitoring of actual costs for activities in progress and estimates for
uncompleted tasks.
2.1.5 Development of milestone completion dates for the Project.
2.2 Site Evaluation and Selection. As and when requested by Webvan:
2.2.1 Provide building and site evaluation to review physical plants and
properties and to assess and compare alternative DC sites.
2.2.2 Ascertain as to a proposed DC Project whether there are any
significant zoning, building code, entitlement or other governmental compliance
issues (including transportation issues), prepare a plan for addressing any such
issues, and assist Webvan in addressing such issues, including, without
limitation, Bechtel's development of an entitlement strategy for obtaining such
approvals as are required from governmental authorities to develop each DC
Project within the time frame and costs contemplated by the Project Schedule and
Project Budget (as each is defined below) for a DC Project, coordination of all
development requirements of applicable governmental authorities, and making such
appearances and attending such meetings as are necessary or appropriate in
connection with obtaining required permits and approvals.
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2.2.3 Assist Webvan in conducting inspections, evaluations, surveys and
tests as may be necessary or appropriate in connection with any DC Project,
including, without limitation, such engineering and geotechnical studies,
seismic tests, and inspections and reviews of all buildings and related
operating systems to determine the feasibility of a DC Project. Bechtel shall
not be required, however, to perform any testing or analysis to determine the
presence or extent of any hazardous materials at the DC Projects.
2.2.4 Bechtel's liability for any deficient Services provided under this
Section 2.2 shall be limited to the reperformance of such Services during the
term of this Contract at no additional charge to Webvan.
2.3 Design.
2.3.1 Schematic Design Services.
2.3.1.1 Based on the approved Development Plan for each of the DC
Projects and any adjustments authorized by Webvan in such Development Plan,
Bechtel shall prepare for Webvan's review and approval schematic drawings,
descriptive specifications and other documents appropriate to the size of each
of the DC Projects illustrating and describing the concept, quality, layout,
scale and relationship of the DC Project components (including, without
limitation, the Operating Equipment), which documents are collectively referred
to as the "SCHEMATIC DESIGN DOCUMENTS". Webvan acknowledges that the conceptual
design of the DC Projects shall initially be based upon Webvan's existing DCs
located in Oakland, California and Atlanta, Georgia. Bechtel shall, however,
review with Webvan alternative designs and construction methods relating to each
DC Project.
2.3.1.2 Upon completion of the Schematic Design Documents for a DC
Project, Bechtel shall prepare and submit to Webvan a comprehensive, detailed
preliminary budget for such DC Project and for all costs to be incurred as part
of the DC Project, which budget shall at all times be subject to Webvan's
approval both as to form and content. The parties acknowledge that such DC
Project budgets will be critical in allowing the parties to conceptualize and
monitor the Development of the Project, and Bechtel shall use its best efforts
to prepare and update each such DC Project budget so as to be as detailed and
realistic as possible. Each such DC Project budget, as revised from time to time
and approved by Webvan, is referred to herein as a "PROJECT BUDGET". Bechtel
shall design each DC Project in accordance with its Project Budget.
2.3.2 Design Development Services.
2.3.2.1 Based on the approved Schematic Design Documents for each
DC Project and any adjustments authorized by Webvan in the Development Plan or
the Project Budget for such DC Project, Bechtel shall prepare for Webvan's
review and approval drawings of sufficient detail to describe the size, shape,
configuration, and quantity of typical and non-typical elements of each such DC
Project (including, without limitation, the Operating Equipment), outline
specifications and other documents which fix and describe the size and character
of the DC Project as to architecture, engineering, structure, layout, electrical
systems, mechanical systems, plumbing systems, materials and equipment
(including the Operating Equipment), all of which documents are collectively
referred to herein as the "DESIGN DEVELOPMENT DOCUMENTS".
2.3.2.2 Bechtel shall refine the Project Budget for each DC
Project based on the Design Development Documents for such DC Project. Bechtel
shall revise the Design Development
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Documents as required by Webvan to make them acceptable to Webvan and shall
adjust the Project Budget for such DC Project accordingly.
2.3.3 Construction Documents Services.
2.3.3.1 Based on the Design Development Documents approved by
Webvan for each DC Project and the approved Project Budget for each such DC
Project, Bechtel shall prepare the final drawings, plans and specifications
setting forth in detail the requirements for Development of each such DC
Project, collectively referred to herein as the "CONSTRUCTION DOCUMENTS". The
Construction Documents shall include the detailed Performance Standards for the
operation of the materials handling and distribution system and equipment
included within such DC Project.
2.3.3.2 Bechtel shall revise the Construction Documents as
required by Webvan to make them acceptable to Webvan and shall adjust the
Project Budget for each such DC Project accordingly.
2.3.3.3 Bechtel shall complete the Construction Documents for each
DC Project, including Bechtel's coordination of all documents and corrections
based on such coordination, prior to preparing and issuing bid documents for
each such DC Project.
2.3.3.4 Bechtel shall submit all necessary Construction Documents
approved by Webvan and applications for all necessary permits and approvals for
the Development of each DC Project to the appropriate governmental authorities
and shall process such Construction Documents, subject to the terms of this
Contract, as required by such governmental authorities to secure the issuance of
such permits and approvals for the use and occupancy of each DC Project.
2.3.4 General.
2.3.4.1 The Design Services and Construction Documents provided
and/or prepared by Bechtel for each DC Project shall comply with (i) all
applicable federal, state and local laws, ordinances, building and other codes,
rules and regulations (collectively, "LAWS"), (ii) all covenants, conditions,
restrictions, easements and leases affecting the applicable DC Project sites,
copies of which have been provided to Bechtel by Webvan (collectively "PRIVATE
RESTRICTIONS"), (iii) all applicable manufacturers' and vendors' instructions
and specifications, and (iv) sound design and construction practices. Bechtel
shall make recommendations regarding alternative solutions whenever design
details appear to affect adversely the Development of any DC Project, the
Project Budget, or the Project Schedule. If Webvan or Bechtel determines that
modifications are necessary to any such Construction Documents to comply with
Laws which were in effect at the time each Construction Document is issued to
Webvan or if Webvan or Bechtel determines that modifications are necessary to
any Construction Documents to comply with any Private Restriction at the time
such Construction Documents were issued to Webvan, Bechtel, at its sole cost and
expense, shall immediately modify the Construction Documents as necessary to
bring the Construction Documents into compliance with such Laws and Private
Restrictions which were in effect at the time of issuing the Construction
Documents and shall notify Webvan in writing of such modifications.
2.3.4.2 Bechtel shall provide all design services for the
Development of the DC Projects requested by Webvan and shall employ the services
of reputable, licensed and well-qualified professional architects, engineers and
other design consultants in connection with the Project (collectively
"SUBCONSULTANTS") only with Webvan's prior written consent. After Webvan has
approved
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any particular Subconsultant, Bechtel shall contract, solely in its own name and
behalf and not in the name or behalf of Webvan, with such Subconsultant.
Bechtel's form of agreement with Subconsultants shall be subject to the prior
approval of Webvan and shall provide that the Subconsultants shall perform their
respective portions of the DC Project work in accordance with all applicable
provisions of this Contract and the other Contract Documents. Webvan's approvals
shall not, however, make Webvan a party to any such agreement. Bechtel shall
direct and coordinate the work of its Subconsultants and shall be responsible
for the work performed by its Subconsultants and the compensation payable to its
Subconsultants. Notwithstanding anything to the contrary in this Contract,
Webvan's consent to any Subconsultant shall not in any way relieve Bechtel of
any duty, liability or responsibility to Webvan for the Design Services (defined
in Section 3.1) provided by Bechtel or any of its Subconsultants.
2.3.4.3 Bechtel and the applicable Subconsultants shall sign all
Construction Documents and other design documents prepared by or caused to be
prepared by Bechtel under this Contract.
2.3.4.4 Bechtel shall cooperate with Webvan during Development of
the DC Projects to effect cost savings as deemed appropriate by Webvan without
unnecessarily altering established Project scope or quality. Bechtel shall
perform value-engineering concurrent with the design process to ensure that
building systems, materials, construction methods, Operating Equipment and
costing are properly considered. Bechtel shall seek to achieve construction
efficiency during the design process and capture savings for Webvan to the
extent reasonably possible.
2.3.4.5 Bechtel shall prepare and submit a critical path or
network construction schedule in form and substance satisfactory to Webvan for
the timing of the various components of the Development of each DC Project,
which shall show in detail the various major activities to be undertaken in
connection with each such DC Project (including demolition, design, bidding,
construction, assembly, installation, start-up and testing phases of the DC
Project, including the obtaining of all governmental approvals and permits for
use and occupancy) and the approximate timing of the commencement and completion
of such activities. Each such DC Project schedule shall also include at least a
general indication of the various activities that Bechtel expects to undertake
in connection with the DC Project and the approximate timing of the commencement
and completion of such activities. The parties acknowledge that each such DC
Project schedule will be critical in allowing the parties to conceptualize and
monitor the Development of the Project, and Bechtel shall use its best efforts
to prepare and regularly update each DC Project schedule so as to be as detailed
and accurate as possible. Each such DC Project schedule, as revised from time to
time and approved by Webvan, is referred to herein as a "PROJECT SCHEDULE".
2.3.4.6 All design approvals required by Webvan shall be in
writing. The approval by Webvan of any design document required by this Contract
(including, without limitation, the Schematic Design Documents, the Design
Development Documents, and the Construction Documents) shall not constitute a
waiver by Webvan or require Webvan to relinquish any of its rights under this
Contract, nor shall it relieve Bechtel of any of its obligations or liabilities
for the technical or professional adequacy of its services as described in this
Contract.
2.3.4.7 If any defect in any DC Project work arises on or before
the [*] anniversary of the date of Substantial Completion of the DC Project as a
result of any error or omission in the performance of Design Services, then
(provided that Webvan gives Bechtel notice of such defect on or before such [*]
anniversary) Bechtel shall, within ten (10) business days after receipt of such
written notice (or such longer time as may reasonably be necessary to correct
such defect) and at no cost
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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to Webvan, (i) perform all Design Services to remedy such errors and omissions,
including, without limitation, the development and preparation of additional
Construction Documents in accordance with this Contract to correct such errors
and omissions, and (ii) provide all Construction Services (including, without
limitation, all labor, equipment and materials at the applicable DC Property)
necessary (a) to cause the DC Project to comply in all respects with such
corrective Construction Documents and (b) to alter, repair, replace and/or
restore DC Project work (including, without limitation, Operating Equipment) and
the applicable DC Property damaged, destroyed or rendered unusable (in Webvan's
reasonable judgment) as a result of any such errors or omissions in the
performance of Design Services under this Contract. If Bechtel is required to
remedy any such defects, errors and omissions under the foregoing sentence, then
all Design Services and Construction Services provided by Bechtel to remedy such
defects, errors and omissions shall themselves be subject to the foregoing
remedial obligation. If, therefore, any defect in such corrective Design
Services and/or Construction Services arises within [*] Bechtel shall, within
ten (10) business days after receipt of a written notice of such further defect
(or such longer time as may reasonably be necessary to correct such defect)
perform such additional Design Services and provide such additional Construction
Services as may be necessary to correct such further defect as provided in the
foregoing provisions of this Section 2.3.4.7. If Bechtel fails promptly to
correct any such defects within the foregoing time periods, then Webvan may
(without affecting Bechtel's obligations or liability hereunder) correct, or
cause to be corrected, such defects and charge all related costs to Bechtel,
together with interest (accruing from the date fifteen (15) days following the
date of Webvan's invoice to Bechtel for such costs) at a rate (the "DEFAULT
RATE") equal to the lesser of (A) a simple per annum interest rate equal to four
percent (4%) above the prime lending rate quoted from time to time to
substantial and responsible commercial borrowers on 90-day loans by the Bank of
America, N.T.&S.A., San Francisco, California, or (B) the maximum rate permitted
by applicable Law, until Bechtel has paid such costs.
2.4 Reserved.
2.5 Construction Services. Bechtel shall provide all work and furnish all
labor, services, materials and equipment necessary to construct and complete, in
a good and workmanlike manner, each of the DC Projects (including, without
limitation, the procurement, assembly, installation, testing and calibration of
all Operating Equipment), as described and reasonably inferable from the
approved Construction Documents for such DC Projects. Bechtel shall also assist
Webvan with (i) planning and coordinating building systems and equipment and
Operating Equipment pre-operational tests, start-up performance tests, on-site
observation and troubleshooting, (ii) notifying vendors regarding necessary
modifications, if any, to equipment, and (iii) coordinating the services to be
provided by manufacturers in adjusting, calibrating and verifying the correct
installation of their equipment. Upon Bechtel's receipt, after completion of the
Construction Documents and Webvan's approval of the Project Schedule and Project
Budget for a DC Project, of a written request by Webvan substantially in the
form of Appendix 2.5A attached hereto and made a part hereof (a "REQUEST TO
SOLICIT BIDS"), Bechtel shall solicit bids for such work from Subcontractors (as
defined in Section 2.5.8) pursuant to the bidding and approval process more
particularly described in Section 2.5.8. Based on Subcontractor bids approved
pursuant to Section 2.5.8, Bechtel shall deliver to Webvan for Webvan's approval
a completed Notice to Proceed for such DC Project. If Webvan and Bechtel are
unable to agree upon the terms of a Notice to Proceed or if Bechtel fails to
deliver to Webvan a completed Notice to Proceed within thirty (30) days after
the date of Webvan's Request to Solicit Bids, then Webvan may, at Webvan's
election and in Webvan's sole discretion, rescind its request for such work and
obtain performance of such work by others. Bechtel
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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shall undertake the construction of only those DC Projects authorized in writing
by Webvan in a Notice to Proceed. Bechtel shall perform all Construction
Services (as defined in Section 3.1) specified in a Notice to Proceed in
accordance with this Contract (including the General Conditions for Construction
attached hereto as Appendix 2.5 and made a part hereof (the "GENERAL
CONDITIONS") and all other appendices attached hereto), the applicable approved
Construction Documents and all applicable Change Orders (as defined below in
Section 2.5.4) executed by Webvan and Bechtel. Bechtel shall achieve Substantial
Completion of such work on or before the date specified in such Notice to
Proceed, at a cost not exceeding the Budgeted Cost (defined in Section 2.5.1)
stated in such Notice to Proceed, subject to adjustment by Change Orders
executed by Webvan in accordance with Section 2.5.4.1. The "CONTRACT DOCUMENTS"
for a DC Project shall consist of this Contract, the applicable approved
Construction Documents, and Change Orders thereto executed by Webvan, and the
Notice to Proceed. As used herein, the term "SUBSTANTIAL COMPLETION" of a DC
Project shall mean that (i) the Development of the DC Project has been completed
in accordance with the applicable Contract Documents (including, without
limitation, the procurement, assembly, installation, calibration and testing of
all Operating Equipment and the confirmation that the materials handling and
distribution Operating Equipment meets the Performance Standards as provided in
Section 1.2) to the extent sufficient for Webvan to occupy and utilize the DC
Project in a manner consistent with the Contract Documents, (ii) Bechtel has
issued and Webvan has approved (such approval not to be unreasonably withheld) a
certificate of Substantial Completion for the DC Project, and (iii) Bechtel has
delivered to Webvan all required permits and approvals with respect to the DC
Project from the appropriate governmental authorities, including all
certificates and approvals (including food, health and safety permits and
approvals) necessary for Webvan to use and occupy the DC Project in a manner
consistent with the Contract Documents.
2.5.1 Budgeted Cost. The "BUDGETED COST" for the Development of a DC
Project shall equal the sum of (i) the Approved Cost of the Work for such DC
Project, plus (ii) the Contingency Amount (defined in Section 2.5.1.2 below)
based on such Approved Cost of the Work. Bechtel shall specify Bechtel's
proposed Budgeted Cost, estimated Cost of the Work (defined in Section 2.5.5
below), Base Contingency (defined in Section 2.5.1.2) and any requested Excess
Contingency (also defined in Section 2.5.1.2) for the Development of a
particular DC Project in Bechtel's Notice to Proceed for such DC Project. The
estimated Cost of the Work for a DC Project shall be determined by adding (a)
the sum of all accepted Subcontractor bids for the Cost of the Work and (b) the
General Work Requirements Amount (defined in Section 2.5.3 below). The estimated
Cost of the Work for a DC Project specified in the Notice to Proceed approved
and executed by Webvan for such DC Project is referred to herein as the
"APPROVED COST OF THE WORK".
2.5.1.1 If the actual Cost of the Work is less than the Budgeted
Cost, then (except as otherwise expressly provided in Section 5.6) all savings
shall benefit Webvan. If the actual Cost of the Work is more than the Budgeted
Cost, then Bechtel shall pay such excess from its own funds, Webvan shall not be
required to pay any part of such excess, and Bechtel shall have no claim against
Webvan on account thereof. Without limiting the generality of the foregoing, the
Budgeted Cost for a particular DC Project shall apply only with respect to the
DC Project in question. Any savings of the Cost of the Work for a given DC
Project under the applicable Budgeted Cost shall not be offset or credited to
reduce the Budgeted Cost of any other DC Project, and any excess of the Cost of
the Work for a given DC Project over the applicable Budgeted Cost shall not be
applied to increase the Budgeted Cost of any other DC Project. The Approved Cost
of the Work and the Budgeted Cost for a DC Project may be modified only as
expressly provided in Change Orders executed by Webvan for such DC Project in
accordance with Section 2.5.4.1, 2.5.11 or 2.5.13.
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2.5.1.2 The "CONTINGENCY AMOUNT" for a DC Project shall equal the
sum of the Base Contingency for such DC Project plus any Excess Contingency
specified in the Notice to Proceed for such DC Project executed by Webvan. The
"BASE CONTINGENCY" for a DC Project shall equal (i) [*] of the Approved Cost of
the Work for each of the first [*] DC Projects for which Webvan has executed a
Notice to Proceed and (ii) [*] of the Approved Cost of the Work for each
additional DC Project. In addition to the Base Contingency, Bechtel may request
that Webvan approve an additional contingency amount (the "EXCESS CONTINGENCY")
for a particular DC Project. Notwithstanding anything to the contrary in any
Contract Document (including, without limitation, any Notice to Proceed), the
Excess Contingency for any DC Project shall in no event exceed [*] of the
Approved Cost of the Work for such DC Project. An Excess Contingency may only be
requested by Bechtel and shall only be deemed approved by Webvan if such Excess
Contingency is expressly identified in the Notice to Proceed executed both by
Bechtel and by Webvan for a DC Project. Webvan shall not unreasonably withhold
its approval of any Excess Contingency requested by Bechtel.
2.5.2 Bechtel Fee. As used herein, the "BECHTEL FEE" is defined to be
the amount equal to [*] of the actual Cost of the
Work of a given DC Project (except as provided in the following sentence),
subject to the applicable Budgeted Cost (as adjusted by Change Orders executed
by Webvan in accordance with Section 2.5.4.1). Notwithstanding the foregoing,
for purposes of calculating the Bechtel Fee, [*].
2.5.3 General Work Requirements Amount. Appendix 2.5.3 to this Contract
describes the general categories of Bechtel's General Work Requirements. Prior
to establishing the Budgeted Cost for a DC Project, Webvan and Bechtel shall
agree upon a schedule setting forth a more detailed, line item description of
each of such categories and an estimated amount that may be charged for General
Work Requirements (the "GENERAL WORK REQUIREMENTS AMOUNT").
2.5.4 Change in the Work. Without invalidating this Contract, Webvan may
from time to time order a change in the work described in the Contract Documents
for any given DC Project. The Cost of the Work shall be adjusted accordingly
based on the additive or deductive nature of any such change in the work in
accordance with this Section 2.5.4.
2.5.4.1 Webvan shall initiate a change in the work described in
the Contract Documents by preparing a written change order request ("CHANGE
ORDER REQUEST") setting forth in detail the nature of the requested change. On
or before the twenty-first (21st) day following Bechtel's receipt of a Change
Order Request, Bechtel shall (a) complete the Change Order Request setting forth
in detail, with a suitable breakdown, (i) the increase or decrease in the Cost
of the Work as a consequence of the change, (ii) the revised time for the
completion of all other affected work, and (iii) any adjustment in the date of
Substantial Completion or the amount of the Budgeted Cost of the DC Project
attributable to the change in the work, and (b) submit the completed Change
Order Request to Webvan for Webvan's written approval and execution. When Webvan
has approved in writing and executed such a completed Change Order Request, such
Change Order Request shall constitute a "CHANGE ORDER", and Bechtel shall
undertake the change in the work described therein. Bechtel shall prepare a
Change Order summary each month, incorporating all Change Orders that Webvan has
approved in writing and executed during that month. Each Change Order summary
shall include all changes in the Budgeted Cost, if any, and revisions to the
date of Substantial Completion, if applicable. The Budgeted Cost and the date of
Substantial Completion for a DC Project shall not be adjusted except by a
written Change
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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Order executed by Webvan in accordance with this Section 2.5.4.1.
Notwithstanding anything to the contrary in any Contract Documents, however, in
no event shall the Budgeted Cost for any DC Project be increased, nor shall the
date of Substantial Completion for any DC Project be extended, on account of
Change Orders to correct errors or omissions in the Construction Documents for
such DC Project.
2.5.4.2 Bechtel shall submit all Subcontractor breakdowns for any
fixed overhead, labor and profit rates related to that portion of the DC Project
work covered by any Change Order ("CHANGE ORDER WORK") which has been included
in the Subcontractor's Subcontract. The cost for any Change Order Work shall not
exceed the applicable fixed rates, overhead and fees listed in any such
Subcontracts.
2.5.4.3 If Webvan and Bechtel are unable to agree (i) on a
proposed Change Order cost or (ii) whether work required by Webvan constitutes
part of the DC Project work or Change Order Work, then Bechtel shall submit a
Change Order Request which sets forth a "not-to-exceed" cost for the proposed
change in the DC Project work, as well as the information required by clauses
(i), (ii) and (iii) in Section 2.5.4.1, above. Webvan may then direct Bechtel to
proceed with such portion of the DC Project work or such Change Order Work on
such "not-to-exceed" cost basis with Bechtel accounting for the DC Project work
on a time and material basis. If the dispute over such Change Order Work
concerns cost (and not whether the work requested by Webvan already constitutes
part of the DC Project work), then, promptly following completion of such Change
Order Work, Webvan and Bechtel shall execute a Change Order which sets forth the
cost of the Change Order Work as the lesser of (x) such not-to-exceed cost or
(y) the actual cost computed on a time and material basis, and the Budgeted Cost
shall be adjusted accordingly. Webvan reserves the right to audit all Bechtel
and Subcontractor records regarding such Change Orders. If Bechtel submitted a
Change Order Request because Webvan and Bechtel could not agree on whether or
not certain work required by Webvan constituted part of the DC Project work or
constituted Change Order Work, then Webvan and Bechtel shall attempt to resolve
that issue as set forth in Section 2.5.12 within twenty-one (21) days after the
commencement of such disputed work. If Webvan and Bechtel are unable to agree on
a change in the date of Substantial Completion for any portion of the DC Project
work, but the Change Order is otherwise acceptable to Webvan and Bechtel, then
Bechtel shall commence the Change Order Work as directed by Webvan. If, within
twenty-one (21) days following such commencement, Webvan and Bechtel have not
agreed on a change in the applicable date of Substantial Completion, then Webvan
and Bechtel shall submit that issue to dispute resolution as set forth in
Section 2.5.12.
2.5.4.4 Notwithstanding anything in any Contract Document to the
contrary, no action, conduct, omission, prior failure or course of dealing by
Webvan shall act to waive, modify, or alter the requirement that Change Orders
must be in writing signed by Webvan, and that such written Change Orders are the
exclusive method for effecting any change to DC Project work, the Cost of the
Work, date of Substantial Completion of the DC Project or the Budgeted Cost;
provided, however, that Webvan's Vice President of Distribution, or any Webvan
personnel specifically designated by Webvan's Vice President of Distribution in
a written notice to Bechtel with respect to a particular DC Project, shall have
the right to enter into oral Change Orders with Bechtel for such DC Project so
long as (i) any such Change Order does not increase the Budgeted Cost for the DC
Project by more than Thirty Thousand Dollars ($30,000) and does not extend the
date for Substantial Completion of the DC Project, and (ii) within forty-eight
(48) hours after the parties have entered into such an oral Change Order, the
terms of such Change Order are confirmed in a written Change Order executed by
Bechtel and Webvan. Bechtel understands and agrees that the Cost of the Work,
date of Substantial Completion of the DC Project, and the Budgeted Cost cannot
be changed by implication, oral agreements (except as specified in the preceding
sentence), actions, inactions, course of conduct, or constructive change order.
Bechtel shall
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have no obligation to comply with any oral Change Order Request that Bechtel in
good faith believes does not comply with the requirements of the foregoing
clause (i) or that Bechtel cannot readily determine complies with such
requirements.
2.5.5 Costs to be Reimbursed. The term "COST OF THE WORK" shall mean
reasonable costs necessarily incurred in the proper performance of Construction
Services for the DC Project work which are actually incurred by Bechtel. Such
costs shall include the items set forth in this Section 2.5.5, subject to
Section 2.5.6:
2.5.5.1 The reasonable relocation, travel (coach or equivalent
class only) and subsistence expenses (or per diem as applicable) that Bechtel
employees incur in performing Construction Services for the DC Project work, in
accordance with reasonable policies and procedures established by Bechtel.
2.5.5.2 Cost of all materials, supplies and equipment (including
Operating Equipment) incorporated in the DC Project work, including costs of
transportation thereof, excess materials and supplies, and a reasonable
allowance for waste and spoilage.
2.5.5.3 Payments made by Bechtel to Subcontractors providing
Construction Services for DC Project work performed pursuant to written
Subcontracts entered into pursuant to this Contract.
2.5.5.4 Cost, including transportation and maintenance, of all
materials, supplies, equipment (including, without limitation, any computers and
other office equipment), temporary facilities and hand tools purchased by
Bechtel to perform the DC Project work which are consumed in the performance of
the DC Project work, and the cost (less salvage value) of such items used to
perform the DC Project work, but not consumed in the performance of the DC
Project work. In the latter of the two situations described in the immediately
preceding sentence, Bechtel shall become the owner of such items upon completion
or termination of the DC Project work. Webvan may, at its discretion, retain
ownership of those items not consumed in the performance of the DC Project work
or may direct Bechtel to sell or buy such items and credit the Cost of the Work
by the amount of the proceeds which would then determine the salvage value
described above. Bechtel shall provide Webvan with a schedule indicating the
then current inventory of all construction equipment, hand tools, and temporary
facilities, showing original cost (as amended from time to time, the "EQUIPMENT
SCHEDULE"). Bechtel shall amend the Equipment Schedule by deleting all items
consumed and adding all items purchased during the course of the DC Project
work. Bechtel shall maintain a current Equipment Schedule located at each DC
Project office for review by Webvan for equipment whose individual cost is One
Thousand Dollars ($1,000) or more.
2.5.5.5 Rental charges for all necessary machinery and equipment,
exclusive of hand tools, used at the site of the DC Project work, whether rented
from Bechtel or others, including installation, minor repairs and replacements,
dismantling, removal, transportation and delivery costs thereof.
2.5.5.6 Costs of premiums for insurance that Bechtel is required
to maintain pursuant to Section 7 hereof, deductibles thereunder not exceeding
Ten Thousand Dollars ($10,000) per occurrence, and costs of Subcontract bonds.
Bechtel shall have the right to require that any Subcontractor be bonded if such
requirement is commercially reasonable under the circumstances. With respect,
however, to any Subcontractor that Webvan has specified as the only
subcontractor that Bechtel is authorized to engage to perform particular
Services, Bechtel shall not have the right to require bonding
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of such Subcontractor if Webvan agrees that any delay in the performance of such
Services by such Subcontractor will constitute an Excusable Delay (as defined in
Section 2.5.13).
2.5.5.7 Sales, use or similar taxes imposed by any governmental
authority which are related to the DC Project work and for which Bechtel is
liable.
2.5.5.8 Permit fees, royalties approved in advance by Webvan, and
deposits lost for causes other than Bechtel's fault or negligence .
2.5.5.9 Construction temporary utilities costs, including, but not
limited to, the cost of water, gas and electricity consumed in construction of
the DC Project.
2.5.5.10 Minor expenses such as telegrams, long distance telephone
calls, telephone service at the site, overnight courier service, and similar
petty cash items in connection with the DC Project work.
2.5.5.11 The cost of removal of all debris from the site of the DC
Project work, unless such cost is otherwise included in the Cost of the Work
hereunder.
2.5.5.12 Costs incurred due to an emergency affecting the safety
of persons and property, unless arising out of the fault or negligence of
Bechtel or its Subcontractors, employees or agents.
2.5.5.13 The cost of on-site security necessary to protect the
materials, supplies, equipment and DC Project improvements at the DC Project
site, including any watchmen, temporary fencing, or other security services
reasonably required to protect the DC Project work.
2.5.5.14 Other costs incurred in the performance of the DC Project
work, if and to the extent approved in advance in writing by Webvan.
2.5.5.15 Unit Rates as set forth in Appendix 5.1.2 for Bechtel
employees performing Construction Services for DC Projects, it being understood
that such rates are deemed to include all benefits and other payroll burden and
overhead.
2.5.6 Costs Not to be Reimbursed. The term "COST OF THE WORK" shall not
include any of the items set forth in this Section 2.5.6.
2.5.6.1 Salaries, bonuses, benefits and other compensation of any
Bechtel employees or personnel, other than as expressly provided in Section
2.5.5.15.
2.5.6.2 Expenses of Bechtel's principal and branch offices other
than the DC Project field office.
2.5.6.3 Any part of Bechtel's capital expenses, including interest
on Bechtel's capital employed for the DC Project work.
2.5.6.4 Except as specifically provided in Section 2.5.5.5, rental
cost of machinery and equipment.
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2.5.6.5 Overhead or general expenses of any kind, unless expressly
included in Section 2.5.5.
2.5.6.6 Costs incurred by Bechtel, any Subcontractor,
Subconsultant, or anyone directly or indirectly engaged by any of them, as a
result of the negligence of any such parties or of anyone for whose acts any of
them may be liable, including but not limited to, the costs of correction of
defective or non-conforming DC Project work, disposal of materials and equipment
wrongly supplied, or making good any damage to property, subject to Section
7.2.5 hereof concerning waiver of subrogation rights.
2.5.6.7 The cost of any item not specifically and expressly
included in the items described in Section 2.5.5, unless previously specifically
approved in writing by Webvan.
2.5.6.8 Losses and expenses sustained by Bechtel, Subcontractors
or Subconsultants, not compensated by insurance or otherwise, if such losses or
expenses arise out of the infidelity or dishonesty on the part of an employee of
Bechtel or a Subcontractor or Subconsultant.
2.5.6.9 Losses and expenses not covered by insurance, if Bechtel
shall fail to obtain and/or maintain in effect the insurance required by the
Contract Documents, insurance deductibles in excess of Ten Thousand Dollars
($10,000) per occurrence, and coinsurance amounts.
2.5.6.10 Costs, losses, expenses, bonds and/or insurance incurred
by reason of Bechtel's general operations which Bechtel would customarily incur
or carry without reference to Bechtel's obligations under this Contract; and,
except as otherwise agreed to in writing by Webvan, insurance costs for any type
or amount of insurance other than the insurance Bechtel is required to carry
pursuant to Section 7 hereof.
2.5.6.11 Costs in excess of the Budgeted Cost, as it may be
adjusted pursuant to Section 2.5.4.
2.5.6.12 Intentionally omitted.
2.5.6.13 Provided that Webvan has paid Bechtel all amounts then
properly due and payable under this Contract, the Cost of the Work shall not
include any sums spent or costs incurred by Bechtel, or for which Bechtel is
liable or obligated, with respect to any Mechanics' Liens (defined in Section
4.2.2) filed or served by any Subcontractor or Subconsultant because of
Bechtel's failure or refusal to pay any such Subcontractor or Subconsultant,
whether or not any such failure or refusal is wrongful or as a result of a bona
fide dispute between Bechtel and any such Subcontractor or Subconsultant,
including, without limitation, any amounts paid or incurred to discharge or
release such Mechanics' Liens (whether paid to such claimant or other party, or
as attorneys' fees or otherwise), and all costs of any bonds obtained to clear
any such Mechanics' Liens.
2.5.6.14 Fees, compensation, costs or expenses of any
Subconsultant or any other person or entity providing Consultant Services or
Design Services (defined in Section 3.1), it being the intention of Webvan and
Bechtel that all such fees, compensation, costs and expenses for Consultant
Services and Design Services shall be paid only as provided in Section 5.1 and
Section 5.3, respectively.
2.5.6.15 Costs resulting from any errors or omissions in the
Construction Documents for any DC Project.
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2.5.7 Discounts, Rebates and Refunds. Bechtel shall use best efforts to
purchase all materials and equipment (including, without limitation, Operating
Equipment) to be included in the Cost of the Work for any DC Project at the
lowest prices commercially available to Bechtel given Bechtel's position as a
bulk purchaser of such materials and equipment. All trade discounts, rebates and
refunds, and all returns from sale of surplus materials and equipment, shall
accrue to Webvan.
2.5.8 Subcontracts and Other Agreements. All portions of the DC Project
work that Bechtel does not perform with its employees shall be performed
pursuant to written subcontracts and, where applicable, sub-subcontracts or
material purchase orders (collectively, "SUBCONTRACTS") with licensed or
otherwise properly qualified subcontractors, sub-subcontractors, laborers,
architects, design professionals, engineers, surveyors, consultants, equipment
lessors, and material suppliers (collectively, "SUBCONTRACTORS"). It is the
intention of the parties hereto that Bechtel shall act as a general contractor
in connection with Bechtel's performance of the Construction Services hereunder.
Bechtel shall secure at least three (3) qualified bids from Subcontractors on
each item in the construction of a DC Project (excluding those included in the
General Work Requirements), including, without limitation, those performed by
Bechtel, unless otherwise agreed to by Webvan. Bechtel shall promptly deliver to
Webvan for each DC Project a summary of all bids received, together with
Bechtel's analysis and recommendations for awards. In addition, upon Webvan's
request from time to time, Bechtel shall deliver to Webvan complete copies of
all bids received and all other pertinent data. Webvan may attend all bid
openings. Bechtel shall keep all bid results confidential. Bechtel shall certify
that, to the best of Bechtel's knowledge, each bid is bona fide, complete and
reasonable. As part of its bid analysis, Bechtel shall notify Webvan of any bid
that deviates from the Contract Documents. Webvan's approval of a bid on a
Subcontract shall not constitute approval of a deviation or omission from the
Contract Documents. Any approved deviation or omission from the Contract
Documents shall occur only by means of a Change Order.
2.5.8.1 All Subcontractors and Subcontracts for the procurement,
assembly, installation, start-up, testing and calibration of Operating Equipment
and any additional refrigeration systems or equipment shall be subject to
Webvan's prior written approval. In addition, Webvan reserves the right to
reject any Subcontractor or any bid of a Subcontractor at any time prior to
award. Webvan shall have five (5) business days after it receives Bechtel's
written recommendations to approve or disapprove Bechtel's recommendations for
all Subcontractors and Subcontracts for the procurement, assembly, installation,
start-up, testing and calibration of Operating Equipment and other refrigeration
systems and equipment and to reject Bechtel's recommendations for any other
Subcontractors or bids. After Webvan has approved or not rejected (as
applicable) the award of any such Subcontract, Bechtel shall contract, solely in
its own name and behalf, and not in the name or behalf of Webvan, with the
specified Subcontractor. Bechtel's Subcontract form shall provide that the
Subcontractor shall perform its portion of the DC Project work in accordance
with all applicable provisions of this Contract and the other Contract
Documents. In addition, all Subcontracts relating to any Operating Equipment or
refrigeration system or equipment shall be submitted to Webvan for approval
prior to execution by Bechtel. Webvan's approval shall not make Webvan a party
to any Subcontract.
2.5.8.2 All Subcontracts shall, so far as practicable, contain
unit prices, markups for overhead and profit, and any other feasible formula for
use in the determination of the cost of changes in the DC Project work and shall
contain (where applicable) warranties, conditions and covenants which are
substantively similar to the Contract Documents. Upon request by Webvan, Bechtel
shall furnish Webvan with copies of all warranties provided by vendors,
manufacturers, laborers and material suppliers relating to the Subcontracts and
will deliver all warranties at Substantial Completion. Bechtel shall hold all
Subcontractors, including all persons directly or indirectly employed by them,
responsible
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for any damages due to breach of contract, negligence and willful misconduct and
shall use reasonable efforts diligently to recover such damages. All
Subcontracts shall contain a clause approved by Webvan allowing for the direct
assignment of each Subcontract to Webvan upon termination or full performance of
this Contract. Each Subcontract may then be further assigned to a new general
contractor if Webvan so elects. Notwithstanding any such delivery of warranties
or assignment of Subcontracts, however, Bechtel shall reserve rights of recourse
thereunder to the extent necessary to permit Bechtel to enforce such warranties
and Subcontracts in the event that Webvan makes any claim against Bechtel with
respect to goods or services that are the subject of such warranties and
Subcontracts. The foregoing reservation of rights by Bechtel shall not, however,
in any way impair Webvan's right to pursue direct recourse against the makers of
such warranties and the Subcontractors under such Subcontracts.
2.5.9 Schedule of Values. Subject to the approval of Webvan, Bechtel
shall prepare (at such time as Bechtel has sufficient information) a schedule of
values which divides the Cost of the Work for the various trades, Subcontracts,
suppliers, materials, equipment (including Operating Equipment), labor or other
recognized industry trade breakdowns ("SCHEDULE OF VALUES"). Bechtel warrants
that the breakdowns so prepared will be accurate breakdowns of Bechtel's
estimated costs used to determine the Budgeted Cost. The Schedule of Values, as
approved by Webvan, shall be used as the basis for Bechtel's applications for
payment.
2.5.10 Warranty. Bechtel warrants to Webvan that (a) materials and
equipment (including Operating Equipment) furnished under this Contract will be
of good quality and new (unless otherwise required or permitted by the Contract
Documents) and will be assembled and installed in accordance with all vendors'
and manufacturers' instructions and specifications, (b) each DC Project will be
free from defects, and (c) each DC Project will conform with the requirements of
the applicable Contract Documents. DC Project work not conforming to these
requirements, including substitutions not properly approved and authorized,
shall be considered defective. All guaranties and warranties of materials and
equipment (including Operating Equipment) used or incorporated into the DC
Projects shall be assigned and delivered by Bechtel to Webvan upon demand, or
without demand upon Final Completion of each DC Project. The warranties in
Contract Documents or assigned to Webvan (i) shall survive the completion of the
Services for each DC Project and the termination of the Contract Documents, and
(ii) shall inure to the benefit of Webvan's successors and assigns. Without
limiting any other rights or remedies of Webvan under this Contract, if Webvan
provides written notice of any defect in a DC Project in violation of the
foregoing within [*] after the date of Substantial Completion of the DC
Project, Bechtel shall, within ten (10) business days after receipt of such
written notice of such defect (or such longer time as may reasonably be
necessary to correct such defect), furnish, at no cost to Webvan, all labor,
equipment and materials at the applicable DC Property (as defined in Section
5.2.2.8) necessary to correct such defect and cause the DC Project to comply
fully with the foregoing warranties. If Bechtel is required to remedy any such
defect under the foregoing sentence, then all labor, equipment and materials
provided by Bechtel to remedy such defect shall themselves be subject to the
foregoing warranties. If, therefore, Webvan provides written notice of any
defect in such corrective labor, equipment, or materials within the earlier to
expire of [*], then Bechtel shall, within ten (10) business days after
receipt of such written notice of such further defect (or such longer time as
may reasonably be necessary to correct such defect), furnish, at no cost to
Webvan, all labor, equipment and materials at the applicable DC Property
necessary to correct such further defect and cause the DC Project to comply
fully with the warranties provided in this Section 2.5.10. If Bechtel fails to
promptly correct any such defects within the foregoing time periods, then Webvan
may (without voiding Bechtel's warranties) correct, or cause to be corrected,
such defects and
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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charge all related costs to Bechtel, together with interest at the Default Rate
until Bechtel has paid such costs.
2.5.11 Claims.
2.5.11.1 Bechtel must give notice of any claim on or before the
earlier of (i) the twenty-first (21st) day after Bechtel first recognizes the
condition giving rise to the claim, or (ii) the delivery to Webvan of Bechtel's
Final Application for Payment. Claims must be made by written notice. Failure to
deliver any such notice or request within the required period shall constitute
an irrevocable waiver of any such claim. If a claim has been implemented by
Change Order, no further consideration will be given to such claim.
2.5.11.2 Pending final resolution of a claim (whether by
mediation, arbitration, or litigation), unless otherwise agreed in writing,
Bechtel shall proceed diligently with performance of this Contract and Webvan
shall continue to make payments in accordance with the Contract Documents.
2.5.11.3 If conditions are encountered at a DC Property which are
(i) subsurface or otherwise concealed physical conditions which differ
materially from those indicated in the Contract Documents or (ii) unknown
physical conditions of an unusual nature which differ materially from those
ordinarily found to exist and generally recognized as inherent in construction
activities of the character provided for in the Contract Documents, then notice
by the observing party shall be given to the other party promptly, before such
conditions are disturbed, and in no event later than twenty-one (21) days after
first observance of the conditions. Webvan will promptly investigate such
conditions and make its determination. If Bechtel is opposed to such
determination, Bechtel must make a claim within twenty-one (21) days after
notice of Webvan's decision.
2.5.11.4 If Bechtel wishes to make a claim for an increase in the
applicable Budgeted Cost, Bechtel shall give written notice within the 21-day
time period set forth Section 2.5.11.1 above to Webvan, and Webvan shall be
given reasonable time to evaluate the condition giving rise to such claim prior
to the time Bechtel proceeds to execute the applicable DC Project work. Prior
notice is not required for claims relating to an emergency endangering life or
property. If Bechtel believes additional cost is involved for reasons including
but not limited to (i) an order by Webvan to stop the DC Project work where
Bechtel was not at fault, (ii) failure of payment by Webvan, (iii) termination
of this Contract by Webvan, (iv) Webvan's suspension of DC Project work, or (v)
other reasonable grounds, such claim shall be filed in accordance with the
procedure established herein.
2.5.11.5 If Bechtel wishes to make a claim for an increase in the
Contract Time, written notice shall be given to Webvan within the time period
set forth above in Section 2.5.11.1. Bechtel's claim shall include an estimate
of cost and the probable effect of delay on progress of the DC Project work. In
the case of a continuing delay, only one claim is necessary.
2.5.12 Resolution of Claims and Disputes. If a claim by either party
against the other has not been resolved, the party making the claim shall,
within ten (10) days after the other party's preliminary response, take one or
more of the following actions: (i) submit additional supporting data, (ii)
modify the initial claim or (iii) notify the other party that the initial claim
stands.
2.5.12.1 Continued Performance. Notwithstanding any provisions to
the contrary in this Section 2.5.12, if any dispute arises between Webvan and
Bechtel which relates to the Contract Documents or any DC Project work, Bechtel
shall not interrupt the progress of the work or the
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performance of Services regarding any of the Project during the pendency of any
such dispute, unless ordered to do so by Webvan in writing and Webvan shall make
all progress payments for the Cost of the Work incurred by Bechtel other than
disputed amounts. Bechtel must submit claims on or before the earlier of (i) the
twenty-first (21st) day after Bechtel first recognizes the condition giving rise
to such claim, or (ii) the delivery to Webvan of Bechtel's Final Application for
Payment; no additional claim made by Bechtel after an initial claim on the same
matter has been implemented by a Change Order will be considered. Except to the
extent such costs are incurred with respect to the resolution of claims pursuant
to Sections 2.5.11 and 2.5.12 hereof, if either party brings any action or legal
proceeding for an alleged breach of any provision of this Contract, to terminate
this Contract or otherwise to enforce, protect or establish any term or covenant
of this Contract, the prevailing party shall be entitled to recover as a part of
such action or proceeding, or in a separate action brought for that purpose,
reasonable attorneys' fees, court costs, and expert fees as may be fixed by the
court.
2.5.12.2 Mediation of Disputes. All claims between the parties
shall be handled as follows: (i) the parties shall endeavor, in good faith, to
settle a claim in an amicable fashion pursuant to Section 2.5.11 hereof, and
(ii) if the parties are unable to resolve a claim pursuant to Section 2.5.11
within a reasonable period (but in no event longer than forty-five (45) days)
after the claim is submitted to the other party, then the parties shall submit
the claim to non-binding mediation with Jams/Endispute or its successor ("JAMS")
in San Francisco County, California, before having recourse to a judicial forum.
Mediation shall be initiated by the written request of either party and shall be
commenced within five (5) days after delivery of such notice. The mediator shall
be a neutral third party affiliated with and selected by JAMS. Upon request of
the initiating party or JAMS, the other party shall promptly evidence its
consent to the mediation if such consent is required to proceed.
2.5.12.3 Resolution. The resolution of any claim for adjustment to
the applicable Budgeted Cost or Contract Time for a DC Project shall be
documented, promptly after resolution of such claim, in a Change Order executed
by Bechtel and Webvan.
2.5.13 Delays and Extensions of Time. If Bechtel is delayed in the
performance of Construction Services for any DC Project by an Excusable Delay,
then the applicable Contract Time (defined in Section 3.2.2) and Budgeted Cost
shall be adjusted by Change Order for such time and in such amount as is
reasonable and appropriate under the circumstances, as approved by Webvan and
Bechtel, which approvals shall not be unreasonably withheld. No event of
Excusable Delay shall be deemed to have occurred unless Bechtel delivers notice
of a claim of justifiable delay to Webvan within twenty-one (21) days following
the commencement of the delay. Immediately upon commencement of a delay, Bechtel
shall take all steps reasonably available to Bechtel to lessen the adverse
impact of such delay. As used herein, "EXCUSABLE DELAY" means an actual delay in
the performance of Construction Services for any DC Project by Bechtel which is
caused by events beyond the reasonable control of Bechtel despite having made
all reasonable attempts to avoid such delay and to prevent and mitigate the
effects thereof. Such events may include, without limitation, the following:
2.5.13.1 Actions or inactions of Webvan, or of any employee,
agent, representative or separate contractor of Webvan (other than by reason of
the proper and timely exercise of their respective rights, duties and
obligations under the Contract Documents); or
2.5.13.2 Fire, flood, war, embargo, sabotage, earthquake, or by
injunction (not the fault of Bechtel) or other unavoidable damage to the
applicable DC Project not the fault of Bechtel; or
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2.5.13.3 Adverse weather conditions documented by data
substantiating that such weather conditions were abnormal for the period of time
and could not have been reasonably anticipated and had an adverse effect on the
scheduled construction; or
2.5.13.4 General strike, delays (not caused by Bechtel) in
obtaining required governmental permits and approvals, strikes and/or losses
during transportation.
Notwithstanding the foregoing, the financial inability or unwillingness of
Bechtel or any Subcontractor, Subconsultant, vendor or supplier to pay or
perform any obligation shall not be grounds for an Excusable Delay, unless the
Subcontractor, Subconsultant, vendor or supplier asserting such financial
inability was previously designated by Webvan as the sole provider that Webvan
would authorize Bechtel to engage to provide the applicable goods or services.
Claims arising from any Excusable Delay relating to Contract Time, Budgeted Cost
and the Bechtel Fee shall be made in accordance with applicable provisions of
Section 2.5.11; provided, however, that in no event will Bechtel be entitled to
recover from Webvan any damages resulting from such Excusable Delay.
Notwithstanding anything to the contrary contained herein or in any other
Contract Document, Bechtel shall have no remedy for, and shall be responsible
for, any delay in the Development of a DC Project other than an Excusable Delay.
2.6 Procurement
As and when requested by Webvan, Bechtel shall procure furniture, fixtures,
equipment and other personal property (collectively, "FF&E") for the DC Projects
which are not specified in the Construction Documents, the parties acknowledging
that procurement of all Operating Equipment and other goods, materials and
equipment described in any Construction Documents shall be included within
Construction Services and shall not be subject to this Section 2.6. Procurement
of FF&E shall include, without limitation, (a) Bechtel's best efforts to
purchase such FF&E at the lowest prices commercially available to Bechtel, (b)
Bechtel's assembly and installation of FF&E, at Webvan's request, in accordance
with all applicable Laws and manufacturers' and vendors' instructions and
specifications, and (c) Bechtel's transfer to Webvan of title to all FF&E free
and clear of any liens, security interests, claims or encumbrances of any kind.
Bechtel shall execute and deliver to Webvan such bills of sale and other
documents as Webvan may reasonably request to effect such transfers. In
connection with such procurement Bechtel shall also (i) identify and recommend
potential vendors for approval by Webvan, (ii) identify FF&E bulk pricing
strategies and purchase discount, rebate and refund opportunities, (iii) prepare
bid packages, contracts and purchase orders for approval by Webvan and enter
such contracts and execute purchase orders approved by Webvan, and (iii)
schedule, coordinate and supervise the delivery, storage and installation of
such FF&E. Bechtel shall assign to Webvan all warranties, guaranties and
indemnities and shall deliver to Webvan all instructions, operating manuals and
other materials in connection with such FF&E. If Bechtel fails to procure FF&E
in accordance with this Section 2.6, then Bechtel shall correct such improper
procurement at Bechtel's sole cost and expense. Correction of such procurement
shall include, without limitation, Bechtel's purchase, assembly, installation
and transfer, at no cost to Webvan, of replacement FF&E in the manner provided
in the foregoing clauses (a), (b) and (c) of this Section 2.6.
2.7 Training
As and when requested by Webvan, Bechtel shall provide skilled and competent
personnel to assist Webvan with the training of Webvan's operation and
maintenance personnel in proper operations, schedules and procedures for the
maintenance, repair and operation of DCs (including, without limitation, all
building systems and equipment and all Operating Equipment). Bechtel's liability
for any
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deficient Services provided under this Section 2.7 shall be limited to the
re-performance of such Services during the term of this Contract at no
additional charge to Webvan.
3.0 CONTRACT TIME
3.1 Generally. Time is of the essence for Bechtel's performance of Services
under this Contract. Bechtel shall perform all Services as expeditiously as is
consistent with the professional skill and care and the orderly progress of the
Project and shall complete performance as set forth in the executed Notices to
Proceed and approved Project Schedules. All Services described in Section 2.1
regarding program management and Section 2.3 regarding design are referred to
herein collectively as "DESIGN SERVICES". All Services described in Section 2.2
regarding site evaluation and selection, Section 2.6 regarding procurement, and
Section 2.7 regarding training are referred to herein collectively as
"CONSULTANT SERVICES". All Services described in Section 2.5 regarding
construction services are referred to herein collectively as "CONSTRUCTION
SERVICES".
3.2 Construction Services. The time allowed for Substantial Completion of the
Construction Services and all important construction milestones shall be set
forth in the Project Schedules and Notices to Proceed. Final Completion of a
given DC Project shall occur within forty-five (45) days following Substantial
Completion and agreement upon the Punch List. As used herein, "FINAL COMPLETION"
of a DC Project shall occur only when all of the following have occurred: (i)
the performance of the DC Project work has been fully completed (including,
without limitation, all Punch List items), (ii) all final releases, documents
and manuals required by the Contract Documents have been delivered to Webvan,
(iii) all start-up testing, inspection and calibration of building systems and
equipment and Operating Equipment have been completed, and (iv) all other
conditions have been satisfied for making the Final Payment to Bechtel for such
DC Project under Section 5.2.2.9. As used herein, "PUNCH LIST", shall mean a
comprehensive list of minor items to be completed or corrected following
Substantial Completion of the DC Project work, which items shall not materially
affect the use, occupancy or operation of the DC Project (including, without
limitation, the Operating Equipment).
3.2.1 Bechtel shall achieve Substantial Completion of each DC Project
within the time specified therefor in the corresponding Notice to Proceed for
such DC Project.
3.2.2 For purposes of this Contract, "CONTRACT TIME" shall mean the
period of time, including adjustments authorized by approved Change Orders,
allotted in the Contract Documents for the Substantial Completion of a DC
Project. If Bechtel is delayed on the critical path, then the provisions of
Section 2.5.13 shall apply. Bechtel shall advise Webvan of any delay in the
Substantial Completion of the DC Project work and the cause of such delay,
pursuant to Section 2.5.11.5. Bechtel shall take all prudent steps necessary to
minimize the delay and shall diligently proceed to complete the DC Project work
as required by the Contract Documents.
4.0 BECHTEL'S DUTIES AND STATUS
4.1 Standard of Care. Bechtel represents that it is skilled in the
professional callings necessary to perform the Services and acknowledges that
Webvan, not being skilled in such matters, is relying upon the skill and
knowledge of Bechtel. Bechtel accepts the relationship of trust and confidence
established by this Contract and shall exercise its best skill and judgment and
shall cooperate with Webvan to further the interests of Webvan. Bechtel shall
perform the Services under this Contract in accordance with the professional
standard and quality which prevails among reputable, well-qualified, nationally
recognized, licensed design/build general contracting, architectural and
engineering firms performing services of the
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nature and in the locations encompassed within this Contract. All Services shall
be performed by well-qualified, efficient, properly-trained and adequately
supervised Subcontractors, Subconsultants and employees of Bechtel in accordance
with the foregoing professional standards. Nothing contained in this Contract
shall create a contractual relationship between Webvan and such Subconsultants,
Subcontractors, suppliers or third parties. Webvan, however, shall be an express
third party beneficiary of any and all agreements between Bechtel and any such
Subconsultants, Subcontractors, suppliers and third parties entered into with
respect to the Project, and the Subconsultants, Subcontractors, suppliers and
third parties entering into such contractual relationships with Bechtel shall
expressly acknowledge Webvan as such third party beneficiary and shall have,
among other obligations, a professional responsibility and liability to Webvan
as such third party beneficiary.
4.2 Bechtel's Performance of the Contract.
4.2.1 Bechtel shall provide a sufficient and competent organization,
including a Program Director, a Deputy Program Director, Project Managers,
Construction Managers, Project Contracts Managers, Project Engineers, Site
Managers, Construction Superintendents, Construction Supervisors, engineers,
cost and schedule engineers, administrative and clerical personnel, and others,
as the Services may require. The Program Director and the Deputy Program
Director shall represent Bechtel, and communications given by or to either the
Program Director or the Deputy Program Director shall be as binding as if given
by or to Bechtel. Webvan shall have the right to approve of Bechtel's Program
Director, Deputy Program Director, Project Managers, Construction Managers, and
Site Managers for each of the DC Projects. Webvan may require Bechtel to dismiss
from the Project any of Bechtel's personnel whose performance is not
satisfactory, at Webvan's reasonable discretion. Any such dismissed personnel
shall be replaced with personnel reasonably satisfactory to Webvan. Bechtel
shall not replace any of Bechtel's Program Director, Deputy Program Director,
Project Managers, Construction Managers or Site Managers without Webvan's prior
written consent, which consent shall not be unreasonably withheld. If any
personnel engaged in the Project die, become disabled or voluntarily terminate
their employment with Bechtel, then such persons shall be replaced with persons
of equal or better skill and experience. Bechtel shall furnish efficient
business administration and superintendence, and shall use its best efforts to
furnish at all times an adequate supply of workers and materials and to perform
the Services in the best, most expeditious and most economical manner consistent
with the interests of Webvan.
4.2.2 Bechtel shall provide or cause to be provided all design services,
labor, materials, equipment, tools, construction equipment and machinery, water,
heat, utilities, transportation and other facilities and services necessary for
the Development and completion of the DC Projects, whether temporary or
permanent and whether or not incorporated or to be incorporated into the DC
Projects. Bechtel shall perform and complete the Services as described in this
Contract in a good and workmanlike manner, in accordance with the Contract
Documents, and free of any and all mechanics' liens, materialmen's liens, other
liens, encumbrances, stop notices, charges, impositions, garnishments and
attachments upon or against the real property upon which the DC Projects will be
located (collectively, "MECHANICS' LIENS"), the Project, any equipment or
materials (including, without limitation, Operating Equipment), or Webvan.
4.2.3 The design and construction of the DC Projects by Bechtel or any
of its Subconsultants or Subcontractors shall be in conformity in all respects
with all Laws. As of the time that Webvan and Bechtel agree upon the Budgeted
Cost for a DC Project, Bechtel shall have satisfied itself with respect to
visible conditions, then-current public knowledge, matters of record, and all
other then-existing information relevant to the DC Project and available to
Bechtel through the exercise of reasonable
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diligence. Bechtel's agreement to the Budgeted Cost for a DC Project shall be
deemed conclusively to be an acceptance by Bechtel of the foregoing information
and a determination by Bechtel that the Budgeted Cost is just and reasonable
compensation for the Construction Services.
4.2.4 If any disputed claim should arise between Webvan and Bechtel
under this Contract or otherwise concerning the DC Projects (including, without
limitation, any claim under Section 2.5.11), Bechtel shall proceed to perform
the Services as directed by Webvan pending resolution of the dispute. Until any
such disputed claim is resolved, Webvan shall continue to pay Bechtel all sums
due Bechtel which are not in dispute and/or are not directly related to Services
which are in dispute.
5.0 COMPENSATION
5.1 Consultant Services.
5.1.1 Payment.
5.1.1.1 For Consultant Services performed by Bechtel in accordance
with an approved Notice to Proceed, Webvan shall pay Recoverable Costs (defined
in Section 5.1.2 below) to Bechtel on a monthly basis, it being understood that
(i) Webvan shall have no obligation to pay for Recoverable Costs for Consultant
Services which have not been approved in advance by Webvan in a written Notice
to Proceed, and (ii) the maximum amount of Recoverable Costs payable by Webvan
to Bechtel for Consultant Services shall not exceed the stated "not to exceed"
amounts set forth in the approved Notice to Proceed; any charges by Bechtel in
excess of such amounts shall be at no cost to Webvan.
5.1.1.2 On or before the tenth (10th) day of the first month in
which Bechtel is to provide Consultant Services for particular DC Projects,
Bechtel shall submit to Webvan an invoice for each such DC Project of the amount
of Recoverable Costs for Consultant Services that Bechtel reasonably estimates
that it will incur during such first month for such DC Project. On or before the
tenth (10th) day of the second month in which Bechtel is to provide Consultant
Services for each such DC Project and continuing each month thereafter until the
month following the last month in which Consultant Services are provided by
Bechtel for each such DC Project, Bechtel shall submit to Webvan an invoice that
states (a) the estimated amount of Recoverable Costs paid in advance by Webvan
for the prior month, (b) the actual amount of Recoverable Costs incurred by
Bechtel during the prior month, and (c) the amount of Recoverable Costs that
Bechtel reasonably estimates that it will incur during the current month. Each
such invoice shall (1) be in a form reasonably acceptable to Webvan, (2) provide
in reasonable detail the actual amount of time spent daily by each Bechtel
employee, and the total Unit Rate costs allocable to such employee's work for
each day during the prior month, and a reasonable estimate of the work to be
provided by Bechtel employees during the current month, (3) describe in detail
the Recoverable Costs actually incurred by Bechtel during the prior month (and
shall include copies of invoices from the applicable vendors of any FF&E
procured by Bechtel), and a reasonable estimate of the type and amount of
Recoverable Costs that Bechtel will incur during the current month, and (4)
provide a reconciliation of the actual Recoverable Costs incurred by Bechtel
during the prior month against the estimate of the Recoverable Costs paid by
Webvan for such prior month.
5.1.1.3 Notwithstanding anything contained in any invoice
submitted by Bechtel, (a) if the amount of estimated Recoverable Costs paid by
Webvan for any month is greater than the amount of actual Recoverable Costs
incurred by Bechtel during such month (which amount shall be reduced by any
amounts offset or credited by Webvan against such Recoverable Costs on account
of Webvan's prior overpayments, as hereinafter provided), then Webvan shall have
the right either to offset and credit the
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amount of such overpayment against Bechtel's estimate of Recoverable Costs to be
provided during the current month or to require that Bechtel promptly refund to
Webvan the amount of such overpayment; and (b) if the amount of estimated
Recoverable Costs paid by Webvan for any month is less than the amount of actual
Recoverable Costs incurred by Bechtel during such month, then the amount of such
shortfall shall be paid by Webvan to Bechtel at the same time that Webvan pays
Bechtel's reasonable estimate of Recoverable Costs for Consultant Services to be
provided during the following month.
5.1.1.4 Webvan shall pay Bechtel for each monthly invoice
submitted to Webvan within [*] days after Webvan's receipt of such invoice,
unless prior to the expiration of such [*]-day period, Webvan advises Bechtel
that Webvan disagrees with the invoice submitted or disapproves the Consultant
Services performed. If an invoice is in question, Bechtel and Webvan shall
forthwith attempt to resolve the issue. Webvan shall pay the undisputed portion
of each invoice within [*] days after receipt thereof. Undisputed amounts due
and payable to Bechtel shall bear interest, from thirty (30) days after the
applicable invoice was received until paid by Webvan, at the Default Rate. When
requested by Webvan, Bechtel shall submit applicable lien waivers with its
invoices stating that for that specific portion of Consultant Services for which
Webvan has paid all labor, material and subcontractor and subconsultant accounts
have been duly paid. All such lien waivers (other than lien waivers to be
provided promptly following final payments to Subconsultants and Subcontractors)
may be conditioned upon receipt of payment for the invoiced labor and materials.
Upon completion of the Consultant Services set forth in a Notice to Proceed and
promptly after receiving final payment for such Services, Bechtel shall submit
such unconditional lien waivers and payment affidavits as Webvan may reasonably
require.
5.1.2 Recoverable Costs. Bechtel shall be entitled to reimbursement for
the following costs and expenses (collectively, the "RECOVERABLE COSTS"): (i)
the cost of Bechtel employees performing Consulting Services as provided in the
Unit Rate Schedule attached hereto as Appendix 5.1.2 and made a part hereof,
(ii) ordinary and reasonable expenses of relocation, transportation (coach or
equivalent class only), and subsistence (or per diem, as applicable) in
connection with such Consultant Services (excluding travel within the San
Francisco Bay Area or within the other localities in which the DC Projects are
located), in accordance with reasonable policies and procedures established by
Bechtel; (iii) long-distance communications, facsimile communications (long
distance only), courier services, and express mail; (iv) ordinary and reasonable
expenses of reproduction, postage and handling of drawings, specifications and
other documents (not for internal use); (v) if authorized in advance in writing
by Webvan, expense of overtime work by non-exempt employees requiring higher
than regular rates; (vi) ordinary and reasonable expenses of renderings, models
and mock-ups requested in writing by Webvan; (vii) ordinary and reasonable
expenses of photographic production techniques and photography and photo prints
used for a DC Project; (viii) the purchase prices actually paid by Bechtel for
FF&E title to which has been transferred to Webvan in accordance with Section
2.6; and (ix) ordinary and reasonable fees and costs incurred by Bechtel's
approved Subconsultants in performing Consultant Services, which fees and costs
of Subconsultants shall be evidenced by invoices (copies of which are provided
to Webvan) providing in reasonable detail the actual amount of time billed by
the employees of such Subconsultants, a description of the work performed, and a
detailed description of any and all approved Recoverable Costs incurred by such
Subconsultants. Any and all other costs and expenses incurred by Bechtel in
performing the Consultant Services which are not covered in the preceding
sentence shall require the prior written approval of Webvan and unless such
prior approval is given, Webvan shall not reimburse Bechtel for such costs and
expenses. Bechtel shall review all accounts for reimbursables of its
Subconsultants and Subcontractors before submitting the same to Webvan for
payment and confirm to Webvan if so requested, in writing, that such
reimbursables are reasonable and necessary and were
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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incurred by Subconsultants and Subcontractors in the performance of their duties
on behalf of the Project.
5.2 Construction Services.
5.2.1 Applications for Payment. Not later than the first (1st) business
day of each calendar month, Bechtel shall submit to Webvan a separate
application for payment for the prior month ("APPLICATION FOR PAYMENT") for each
DC Project for which Bechtel is then rendering Construction Services, which
application shall also include any portions of the DC Project work completed
during periods of time covered by previously submitted Applications for Payment
to the extent such portions of the DC Project work were not shown on any such
previous applications. Each Application for Payment shall be for a sum equal to:
(i) that portion of the Cost of the Work incurred during the period covered by
the particular application, determined in accordance with the Schedule of
Values, calculated on the basis of the percentage of the DC Project work
completed during such month, provided that no payment to Bechtel for DC Project
work performed shall exceed the actual Cost of the Work performed (together with
any items applicable to the period covered by any preceding Application for
Payment to the extent such items were not reflected in any such Application for
Payment); and (ii) that portion of the Bechtel Fee applicable to the percentage
of the DC Project work completed during the prior month. In no event, however,
shall the Cost of the Work set forth in any Application for Payment for a DC
Project, when added to all amounts previously invoiced for the Cost of the Work
for the DC Project, represent a percentage of the Budgeted Cost greater than the
completed percentage of the total DC Project work to be performed under the
Contract Documents.
5.2.1.1 Bechtel shall include with each Application for Payment
back-up material satisfactory to Webvan to support all components of the
application, including, without limitation, verifiable Subcontractor payment
applications, current month as-built information, and actual Cost of the Work,
indicating in detail all monies paid out or to be paid out for costs incurred on
account of the Cost of the Work.
5.2.1.2 In each Application for Payment, including the Final
Application for Payment upon the Final Completion of the DC Project, Bechtel
shall certify that: (i) the Application for Payment represents a just estimate
of the costs then due Bechtel under the terms of this Contract; (ii) all DC
Project work covered by the Application for Payment has been completed in
accordance with the applicable Contract Documents; (iii) there are no known
unbonded Mechanics' Liens outstanding at the date of the Application for
Payment; (iv) all due and payable bills (except for amounts in dispute with
Subcontractors) with respect to the DC Project work have been paid to date or
are included in the amount requested in the Application for Payment; (v) there
is no known basis for the filing of any Mechanics' Liens for or relating to the
DC Project work except for (a) unpaid bills included in the Application for
Payment, all of which will be paid from the amount due to Bechtel with respect
to the Application for Payment, or (b) amounts in dispute with Subcontractors;
(vi) subject to receipt of payment, Bechtel waives any Mechanics' Lien rights to
the extent of such payments; (vii) there is no default, or event which with the
passage of time or giving of notice, or both, could constitute a default under
this Contract or under any Subcontract; (viii) the remaining balance of the
applicable Budgeted Cost is sufficient, in Bechtel's reasonable estimation, to
complete construction of the remaining portion of the applicable DC Project
work; and (ix) the DC Project work which is the subject of the Application for
Payment has been performed in accordance with the Contract Documents and all
applicable Laws.
5.2.1.3 Each Application for Payment shall include conditional
lien releases from Bechtel and all Subcontractors for all DC Project work which
is the subject of the Application for
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Payment in the form required by applicable Law. Promptly after Webvan's payment
pursuant to each Application for Payment that includes any final amount to be
paid to a Subcontractor, Bechtel shall deliver to Webvan an unconditional
Mechanics' Lien release from such Subcontractor in the form required by
applicable Law for all DC Project work performed by such Subcontractor.
5.2.1.4 Requests for payment for materials stored on-site or
off-site shall be limited to materials on a list approved by Webvan. Webvan will
not pay for on-site materials such as drywall or any other commodity-like
material until it is in place as a part of the DC Project work.
5.2.1.5 As a condition of payment, Bechtel shall submit a detailed
construction report to Webvan each month, in a form satisfactory to Webvan and
together with the Application for Payment a separate, detailed construction
report for each DC Project for which Webvan is then rendering Construction
Services. The report shall contain pertinent information on the following
aspects of the DC Project: (i) past month's activities; (ii) current month's
activities; (iii) current problems; (iv) Webvan action required; (v) progress
billing which shall include actual expenditures to date in reasonable detail;
(vi) updated Project Schedule; (vii) Change Order log and (viii) projected
monthly cash expenditures for the remainder of the applicable DC Project.
5.2.1.6 Bechtel warrants that title to all DC Project work and
materials covered by an Application for Payment (including, without limitation,
all Operating Equipment) will pass to Webvan either by incorporation in the
construction or upon the receipt of payment by Bechtel, whichever occurs later,
free and clear of all Mechanics' Liens, claims, charges, liens, security
interests or encumbrances of any kind. As a condition to Webvan's obligation to
make any payment pursuant to an Application for Payment, Bechtel shall execute
and deliver to Webvan bills of sale and other documents reasonably requested by
Webvan transferring to Webvan such title to all materials and equipment
(including, without limitation, Operating Equipment) the cost of which is
included in such Application for Payment.
5.2.2 Payments to Bechtel.
5.2.2.1 Webvan will review each Application for Payment and will
promptly take appropriate action thereon as provided in the applicable Contract
Documents. The amount agreed upon for payment shall be payable by Webvan no
later [*] days after Webvan's receipt of a complete and accurate
Application for Payment, but no sooner than the tenth (10th) day of the month.
5.2.2.2 Payment by Webvan with respect to any Application for
Payment shall not constitute Webvan's approval or acceptance of any item or cost
in such Application for Payment, nor shall it be construed to be final
acceptance or approval of that part of the DC Project work to which the payment
relates, nor shall it relieve Bechtel of any of its obligations under this
Contract.
5.2.2.3 Except as otherwise provided in Section 2.5.1, with
respect to each Application for Payment, Webvan shall pay Bechtel an amount
equal to the Cost of the Work and the Bechtel Fee then payable according to the
Schedule of Values. Any provision to the contrary in this Contract or any other
Contract Documents notwithstanding, in the event of a disputed claim between
Webvan and Bechtel with respect to any amount or circumstance covered by any
Application for Payment, Webvan may withhold from the payment in question an
amount sufficient to reimburse Webvan for its expenditures and to secure (i)
correction or re-execution of DC Project work which is defective or has not been
performed in accordance with the Contract Documents; (ii) past due payments to
Subcontractors; (iii) Webvan's remedies in consequence of any default by Bechtel
under this Contract; and (iv) any costs incurred by Webvan as a result of
claims, liabilities, losses and other damages covered
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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by Bechtel's indemnification obligations pursuant to Section 8.16. If Webvan, in
its good faith judgment, determines that the portion of the Budgeted Cost then
remaining unpaid will not be sufficient to complete the applicable DC Project
work in accordance with this Contract, then no additional payments, including
any payments in respect of the Bechtel Fee, will be due Bechtel hereunder unless
and until Bechtel performs a sufficient portion of the work so that such portion
of the Budgeted Cost then remaining unpaid is determined by Webvan to be
sufficient to complete the DC Project work.
5.2.2.4 In no event shall any interest be due and payable by
Webvan to Bechtel, any Subcontractor, Subconsultant or any other party on any of
the sums properly retained by Webvan pursuant to any of the terms or provisions
of any of the Contract Documents.
5.2.2.5 In taking action on each Application for Payment, Webvan
shall have the right to rely on the accuracy and completeness of the information
furnished by Bechtel. Webvan shall not be deemed to have made audits of the
supporting data or exhaustive or continuous on-site inspections or any other
examination to ascertain how or for what purposes Bechtel has used the monies
previously paid on account of this Contract.
5.2.2.6 Except for the Bechtel Fee and any amounts payable to
Bechtel under Section 5.6 or Section 5.7, all sums paid to Bechtel pursuant to
this Contract shall be used for the performance of the DC Project work and for
no other purpose whatsoever. To the extent applicable, all sums paid to Bechtel
in turn shall be paid promptly (but in no event later than the time period
permitted under applicable Law) to the respective Subcontractors and
Subconsultants.
5.2.2.7 Subject to Subparagraph 5.2.2.4, payments due and unpaid
under any Application for Payment for fifteen (15) days shall bear interest,
from thirty (30) days after the particular Application for Payment in question
was received until paid, at the Default Rate.
5.2.2.8 If, in connection with any DC Project work for which
Webvan has paid Bechtel as required by this Contract, any Mechanics' Lien is
filed or served on Webvan or on any lender or landlord with respect to the DC
Project or the applicable DC Property, then Webvan shall have the right to
withhold from any sums otherwise payable to Bechtel, an amount sufficient to
discharge any or all such Mechanics' Liens. Releases or receipted vouchers in
settlement of such Mechanics' Liens, or other security satisfactory to Webvan,
must be furnished to Webvan by Bechtel before the withheld sums will be paid to
Bechtel. If Bechtel has not settled or provided acceptable security for any such
Mechanics' Liens within a reasonable time, not to exceed fifteen (15) days after
the date on which such Mechanics' Lien is asserted, then Webvan shall have the
right, but not the obligation, to discharge any or all such Mechanics' Liens out
of the withheld sums. Notwithstanding the foregoing, Bechtel shall have the
right to bond over the Mechanics' Lien, in an amount not less than one hundred
fifty percent (150%) of the Mechanics' Lien, and receive payment if the effect
of such bonding under applicable Law is to release the Mechanics' Lien from the
real property at which the DC Project is located (the "DC PROPERTY").
5.2.2.9 Except as otherwise set forth below, the entire unpaid
balance due Bechtel on account of the Cost of the Work and the Bechtel Fee, with
respect to the applicable DC Project (the "FINAL PAYMENT"), shall be due to
Bechtel within [*] days after the date on which the final approvals
from the appropriate governmental authorities of satisfaction of all terms and
conditions and other provisions of all necessary permits and approvals
(including, without limitation, all food, health and safety permits and
approvals) authorizing the full use and occupancy of the DC Project (including
the Operating Equipment) as contemplated by the Contract Documents
(collectively, a "CERTIFICATE OF
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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OCCUPANCY") are issued for the DC Project, provided that all of the following
have occurred: (i) a copy of such final approvals from the appropriate
governmental authorities shall have been delivered to Webvan; (ii) Bechtel shall
have certified, in writing, that the Development of the DC Project and
performance of all of the DC Project work and Services has been completed in
accordance with the Contract Documents, subject only to minor, corrective Punch
List items which do not in any way interfere with Webvan's use, operation or
occupancy of the DC Project, which shall be noted on such certification (an
amount equal to [*] to complete such items may be withheld by Webvan); (iii)
Bechtel's certificate described in the foregoing clause (ii) shall in fact be
true, complete and correct; (iv) the applicable requirements of Section 5.2.1
(regarding Applications for Payment) shall have been met (including, without
limitation, Bechtel's delivery to Webvan of all bills of sale and other
documents described in Section 5.2.1.6); (v) Bechtel shall have delivered to
Webvan a waiver of Mechanics' Lien rights, complying with applicable Law,
conditioned only upon receipt of the funds requested in the Final Application
for Payment, and executed by Bechtel and by each person or entity entitled to
record a Mechanics' Lien against the DC Project or the DC Property (or, if any
Subcontractor refuses to furnish such waiver, then a lien bond in form,
substance and amount satisfactory to Webvan, protecting Webvan any lender or
landlord and the DC Project and the DC Property from Mechanics' Liens by such
persons); (vi) Bechtel shall have delivered to Webvan (a) an affidavit in a form
satisfactory to Webvan stating that the Final Payment is being requested and
that the Mechanics' Lien releases and/or bonds delivered to Webvan include and
cover all materials, labor, and services for which a Mechanics' Lien could be
filed against the DC Project or the DC Property and (b) such other affidavits
and agreements reasonably required by Webvan's and/or Webvan's landlord's title
insurers as a condition to insuring Webvan's and/or Webvan's landlord's title to
the DC Project and the DC Property free and clear of any Mechanics' Liens; and
(vii) Bechtel shall have delivered to Webvan one complete set of "as built"
drawings and one electronic copy, which shall be furnished in AutoCAD for
Windows, or a similar format reasonably acceptable to Webvan, and all
guaranties, warranties, operating and maintenance manuals applicable to the
portion of the work in question and/or required by the Construction Documents.
5.2.2.10 In the event of a disputed claim between Webvan and
Bechtel with respect to any amount or circumstance covered by any Final
Application for Payment, Webvan may withhold from the Final Payment in question
an amount not to exceed [*].
5.2.2.11 Bechtel shall file all notices of completion or notices
or filings of similar import for the applicable DC Project work within ten (10)
days of the issuance of a Certificate of Occupancy for the DC Project work in
question in accordance with applicable Law and local custom and practice.
5.3 Design Services.
5.3.1 Payment.
5.3.1.1 Bechtel shall prepare and attach to any Notice to Proceed
executed by Bechtel for Design Services a comprehensive, line-item budget
describing in reasonable detail each Design Service to be provided by Bechtel
(including, without limitation, Schematic Design Services, Design Development
Services and Construction Documents Services) and specifying Bechtel's
reasonable estimate of the Recoverable Costs (as described in Section 5.3.2
below) that will be incurred for each such Design Service. For Design Services
performed by Bechtel in accordance with such a Notice to Proceed executed by
Webvan, Webvan shall pay Recoverable Costs (as described in Section 5.3.2
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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below) to Bechtel on a monthly basis. Webvan shall not, however, have any
obligation to pay for any Recoverable Costs for Design Services in excess of the
Recoverable Costs estimated by Bechtel in the budget for such Design Services
attached to the Notice to Proceed executed by Webvan, unless Webvan has
previously agreed in writing to pay such excess Recoverable Costs. Similarly,
Bechtel shall have no obligation to perform Design Services to the extent the
Recoverable Costs therefor exceed the total amount of Recoverable Costs
specified in such budget, unless Webvan agrees in writing to pay such additional
Recoverable Costs. If, in the course of performing Design Services, Bechtel
determines that the amount of Recoverable Costs that will be incurred for such
Design Services exceeds the total amount of such Recoverable Costs provided in
such budget, then Bechtel shall give Webvan written notice thereof as soon as
reasonably possible and shall deliver to Webvan a revised budget for such Design
Services.
5.3.1.2 On or before the tenth (10th) day of the first month in
which Bechtel is to provide Design Services for a particular DC Project, Bechtel
shall submit to Webvan an invoice of the amount of Recoverable Costs for Design
Services that Bechtel reasonably estimates that it will incur during such first
month. On or before the tenth (10th) day of the second month in which Bechtel is
to provide Design Services for such DC Project and continuing each month
thereafter until the month following the last month in which Design Services are
provided by Bechtel for such DC Project, Bechtel shall submit to Webvan an
invoice that states (a) the estimated amount of Recoverable Costs paid in
advance by Webvan for the prior month, (b) the actual amount of Recoverable
Costs incurred by Bechtel during the prior month, and (c) the amount of
Recoverable Costs that Bechtel reasonably estimates that it will incur during
the current month. Each such invoice shall (1) be in a form reasonably
acceptable to Webvan, (2) provide in reasonable detail the actual amount of time
spent daily by each Bechtel employee, a description of work performed, and the
total Unit Rate costs allocable to such employee's work for each day during the
prior month, and a reasonable estimate of the work to be provided by Bechtel
employees during the current month, (3) describe in detail the Recoverable Costs
actually incurred by Bechtel during the prior month, and a reasonable estimate
of the type and amount of Recoverable Costs that Bechtel will incur during the
current month, and (4) provide a reconciliation of the actual Recoverable Costs
incurred by Bechtel during the prior month against the estimate of the
Recoverable Costs paid by Webvan for such prior month.
5.3.1.3 Notwithstanding anything contained in any invoice
submitted by Bechtel, (a) if the amount of estimated Recoverable Costs paid by
Webvan for any month is greater than the amount of actual Recoverable Costs
incurred by Bechtel during such month (which amount shall be reduced by any
amounts offset or credited by Webvan against such Recoverable Costs on account
of Webvan's prior overpayments, as hereinafter provided), then Webvan shall have
the right either to offset and credit the amount of such overpayment against
Bechtel's estimate of Recoverable Costs to be provided during the current month
or to require that Bechtel promptly refund to Webvan the amount of such
overpayment; and (b) if the amount of estimated Recoverable Costs paid by Webvan
for any month is less than the amount of actual Recoverable Costs incurred by
Bechtel during such month, then the amount of such shortfall shall be paid by
Webvan to Bechtel at the same time that Webvan pays Bechtel's reasonable
estimate of Recoverable Costs for Design Services to be provided during the
following month.
5.3.1.4 Webvan shall pay Bechtel for each monthly invoice
submitted to Webvan within [*] days after Webvan's receipt of such invoice,
unless prior to the expiration of such [*]-day period, Webvan advises Bechtel
that Webvan disagrees with the invoice submitted or disapproves the Design
Services performed. If an invoice is in question, Bechtel and Webvan shall
forthwith attempt to resolve the issue. Webvan shall pay the undisputed portion
of each invoice within [*] days after receipt thereof. Undisputed amounts due
and payable to Bechtel shall bear interest,
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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from thirty (30) days after the applicable invoice was received until paid by
Webvan, at the Default Rate. When requested by Webvan, Bechtel shall submit
applicable lien waivers with its invoices stating that for that specific portion
of Design Services for which Webvan has paid all labor, material and
subcontractor and subconsultant accounts have been duly paid. All such lien
waivers (other than lien waivers to be provided promptly following final
payments to Subconsultants and Subcontractors) may be conditioned upon receipt
of payment for the invoiced labor and materials. Upon completion of the Design
Services set forth in a Notice to Proceed and promptly after receiving final
payment for such Services, Bechtel shall submit such unconditional lien waivers
and payment affidavits as Webvan may reasonably require.
5.3.2 Recoverable Costs. Bechtel shall be entitled to reimbursement for
the following Recoverable Costs for Design Services: (i) the cost of Bechtel
employees performing Design Services as provided in the Unit Rate Schedule
attached hereto as Appendix 5.1.2, (ii) ordinary and reasonable expenses of
relocation, transportation (coach or equivalent class only) and subsistence (or
per diem, if applicable) in connection with such Design Services (excluding
travel within the San Francisco Bay Area or within the other localities in which
the DC Projects are located) in accordance with reasonable policies and
procedures established by Bechtel; (iii) long-distance communications, facsimile
communications (long distance only), courier services, and express mail; (iv)
ordinary and reasonable expenses of reproduction, postage and handling of
drawings, specifications and other documents (not for internal use); (v) if
authorized in advance in writing by Webvan, expense of overtime work by
non-exempt employees of Bechtel or any approved Subconsultants requiring higher
than regular rates; (vi) ordinary and reasonable expenses of renderings, models
and mock-ups requested in writing by Webvan; (vii) ordinary and reasonable
expenses of photographic production techniques and photography and photo prints
used for a DC Project; and (viii) ordinary and reasonable fees and costs
incurred by Bechtel's approved Subconsultants in performing Design Services,
which fees and costs of Subconsultants shall be evidenced by invoices (copies of
which are provided to Webvan) providing in reasonable detail the actual amount
of time billed by the employees of any such Subconsultants, a description of the
work performed, and a detailed description of any and all approved Recoverable
Costs incurred by such Subconsultant. Any and all other costs and expenses
incurred by Bechtel in performing the Design Services which are not covered in
the preceding sentence shall require the prior written approval of Webvan and
unless such prior approval is given, Webvan shall not reimburse Bechtel for such
costs and expenses.
5.4 Entire Compensation. Bechtel specifically understands that the
compensation set forth in this Section 5 and the Notices to Proceed is the sole
compensation payable to Bechtel by Webvan for all Services and no work
undertaken by Bechtel or its agents, employees, Subcontractors or Subconsultants
will result in any obligation of Webvan to pay any additional compensation or
any additional expense reimbursement not expressly authorized in this Section 5,
in the absence of a formal, duly authorized and executed written Notice to
Proceed for such services and Webvan's approval of the maximum cost payable for
such additional services. Bechtel, for itself and its employees, agents,
Subcontractors and Subconsultants hereby (i) waives any right to compensation or
reimbursement for services performed or expenses incurred (a) without written
authorization pursuant to an approved Notice to Proceed or (b) in excess of the
amounts set forth in an approved Notice to Proceed, and (ii) covenants not to
sue for amounts which might otherwise be payable under the theory of quantum
meruit, or under any other legal theory, except to the extent Bechtel is
expressly entitled to payment under Section 5 of this Contract.
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5.5 Books and Records.
5.5.1 Bechtel shall check all materials, equipment and labor being
incorporated into Project work and shall keep such full and detailed accounts as
may be necessary for proper financial management under this Contract. Webvan
shall have access to all Bechtel's records, books, correspondence, instructions,
drawings, receipts, vouchers, memoranda and similar data relating to this
Contract and/or Project work or Services, and Bechtel shall preserve (either in
hard copy or on electronic storage) all such records for a period of four (4)
years following Final Payment for each DC Project, or for any longer period
required by Law. Webvan shall have the right to copy all or any part of
Bechtel's job records.
5.5.2 All Services shall be performed by Bechtel on an "open book"
basis. Webvan shall have the right, during the performance of the Services and
for a period of four (4) years after Final Payment for each DC Project has been
made, to inspect and audit Bechtel's books and records regarding the Project,
except that Webvan shall not have the right to audit the basis for the Unit
Rates described in Appendix 5.1.2 or any other fixed rates or fixed prices that
Bechtel and Webvan may agree to as the basis for compensation. Bechtel shall
have the opportunity to audit itself prior to any audit by Webvan. Should any
overcharge be found by Bechtel's audit, Bechtel shall pay Webvan an amount equal
to the amount overcharged plus interest at the Default Rate (including any part
of the Bechtel Fee based on such overcharge). After Bechtel's audit, if any such
audit by Webvan reveals that the amounts charged to Webvan by Bechtel exceeded
the actual compensation to which Bechtel was entitled for Services, then Bechtel
shall pay Webvan an amount equal to the amount overcharged plus interest at the
Default Rate (including any part of the Bechtel Fee based on such overcharge)
and shall pay for the cost of the audit if the net amount overcharged exceeds
Ten Thousand Dollars ($10,000) per occurrence.
5.6 Cost Incentive.
5.6.1 For purposes of this Contract, [*] Notwithstanding anything in
this Section 5.6 to the contrary, however, the aggregate amount payable to
Bechtel under this
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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Section 5.6 for any particular DC Project shall in no event exceed [*].
5.6.2 [*].
5.7 Time Incentive. If the Substantial Completion of a particular DC Project
occurs before the date (the "SCHEDULED DATE") specified for Substantial
Completion in the then-current Project Schedule approved by Webvan and the
Notice to Proceed executed by Webvan for such DC Project (as such date may be
adjusted pursuant to Change Orders executed by Webvan for such DC Project in
accordance with Section 2.5.4.1), and if at the time of such Substantial
Completion no Event of Default by Bechtel exists under the Contract Documents
nor has any event or condition been identified which (with the giving of notice
or the passage of time or both) could constitute such an Event of Default, then
Webvan shall pay Bechtel, concurrently with the Final Payment for such DC
Project, an amount (the "TIME INCENTIVE AMOUNT") equal to the sum of the
following: [*].
5.8 Incentive Warrant. Concurrently with Bechtel's and Webvan's
execution and delivery of this Contract, Webvan has delivered to Bechtel a
warrant (the "WARRANT") in the form of Appendix 5.8 attached hereto and made a
part hereof for the purchase of up to six hundred thousand (600,000) shares of
preferred stock of Webvan. As provided in the Warrant, Bechtel's rights under
the Warrant shall vest with respect to certain shares of preferred stock of
Webvan only when the DC Project has been completed On Time/On Budget. For
purposes of the Warrant, "ON TIME/ON BUDGET" shall mean, with respect to any
particular DC Project, that [*]
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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[*] Except as expressly provided in this Section 5.8, under no circumstance
shall a DC Project be deemed to have been completed On Time/On Budget if [*].
Notwithstanding the foregoing clause (ii), if [*] then Bechtel shall be deemed
to have satisfied the requirement of clause (ii) of this Section 5.8 for
purposes of determining whether such DC Project has been completed On Time/On
Budget.
6.0 TERMINATION OF CONTRACT
6.1 Bechtel's Termination Rights.
6.1.1 Bechtel may suspend the Services for a particular DC Project (i)
if Webvan fails to pay or to object to an Application for Payment or invoice for
Consulting Services or Design Services for such DC Project within thirty (30)
days after written notice of delinquency is received by Webvan from Bechtel,
(ii) pursuant to an order of any court or other public authority having
jurisdiction, or (iii) as a result of an act of government, such as a
declaration of a national emergency, making materials unavailable.
6.1.2 For purposes of this Section 6.1.2, (a) the "OUTSTANDING AMOUNT"
shall equal the sum of all amounts (without duplication) both (i) that are
specified as due and payable in all Applications for Payment for Construction
Services and all invoices for Consultant Services and Design Services that
Bechtel has properly completed and submitted (including all related
documentation required under the Contract Documents) and (ii) that Webvan has
not paid; and (b) the "PAST-DUE AMOUNT" shall equal that portion of the
Outstanding Amount as to which Webvan has neither objected nor made payment
within [*] after Webvan's receipt of the Applications for Payment and invoices
therefor. If at any time during the term of this Contract the Past-Due Amount
exceeds [*] for a period of five (5) consecutive days, then Bechtel shall have
the right to give Webvan written notice (a "PAST-DUE NOTICE") of such event.
Bechtel shall specify in any Past-Due Notice the Past-Due Amount as of the date
of such Past-Due Notice, and Bechtel shall attach to any Past-Due Notice copies
of all Applications for Payment for Construction Services and copies of all
invoices for Consultant Services and Design Services evidencing the unpaid
amounts which, when added together, constitute the Past-Due Amount specified in
Bechtel's Past-Due Notice. Webvan shall have five (5) days after Webvan's
receipt of a Past-Due Notice within which either to pay the Past-Due Amount
specified by Bechtel or to give Bechtel written notice that Webvan objects to
Bechtel's calculation of such Past-Due Amount. Any such objection to Bechtel's
calculation of such Past-Due Amount may be based only upon Webvan's assertion
(1) that Bechtel's calculation includes an arithmetic error or (2) that Bechtel
has included in such calculation amounts that Webvan either paid or objected to
within fifteen (15) days after Webvan's receipt of the applicable Applications
for Payment and invoices. If Webvan has not paid or so objected to such Past-Due
Amount on or before the fifth (5th) day after Webvan's receipt of such Past-Due
Notice, then Bechtel shall have the right (by giving Webvan written notice
thereof) to suspend performance of any or all Services. If both (a) Webvan has
not timely objected to Bechtel's calculation of
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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such Past-Due Amount in the manner hereinabove provided, and (b) on or before
the thirty-fifth (35th) day after Webvan's receipt of such Past-Due Notice,
Webvan has not paid such Past-Due-Amount, then Bechtel shall have the right to
terminate this Contract by giving Webvan written notice of such termination.
Following any such termination of this Contract by Bechtel, Bechtel shall have
the right to recover from Webvan payment for all Services completed for the
Project as of the date of such termination. If Webvan objects to Bechtel's
calculation of the Past-Due Amount specified in any Past-Due Notice, the dispute
shall be resolved in accordance with Section 2.5.12. Any period during which
Bechtel has properly suspended performance of Services pursuant to this Section
6.1.2 shall constitute an Excusable Delay with respect to each DC Project as to
which Bechtel has properly suspended performance.
6.1.3 Webvan may, at any time and without cause, order Bechtel, in
writing, to suspend the Services in whole or in part for such period of time as
Webvan may determine. If Bechtel's work as to a particular DC Project is
suspended pursuant to any such written order of Webvan for a period of thirty
(30) consecutive days or more, then Bechtel shall have the right to terminate
this Contract as to such DC Project only and to recover from Webvan payment for
all Services completed for such DC Project as of the date of termination.
6.1.4 [*].
6.1.5 Upon any termination of this Contract by Bechtel pursuant to this
Section 6.1, Webvan and Bechtel shall have the same rights and obligations as if
Webvan had terminated this Contract under Section 6.2.
6.2 Webvan's Right to Terminate Without Cause. The following provisions of
this Section 6.2 shall govern Webvan's right to terminate this Contract without
cause.
6.2.1 In addition to Webvan's right to terminate on account of Bechtel's
default, as set forth in Section 6.4, Webvan may terminate this Contract and/or
the Services, in whole or in part, at any time and from time to time without
cause, by giving Bechtel at least ten (10) days' prior written notice. Upon
receipt of any such notice, Bechtel shall, unless the notice directs otherwise:
(i) immediately discontinue the Services on that date and to the extent
specified in the notice; (ii) enter into no further Subcontracts or
Subconsultant agreements, except as may be necessary for completion of such
portion of the DC Project work or Services as is not discontinued; (iii)
promptly make every reasonable effort to procure cancellation, or assignment,
upon terms satisfactory to Webvan, of all Subcontracts and all Subconsultant
agreements to the extent they relate to the performance of the discontinued
portion of the DC Project work and other Services; and (iv) thereafter, with
respect to the DC Project(s) as to which Webvan has terminated this Contract, do
only such DC Project work as may be necessary to preserve and protect the DC
Project work already in progress and to protect materials, landscaping materials
and equipment on the DC Property(ies) or in transit thereto. Upon such
termination, the obligations of the parties under this Contract shall continue
as to DC Projects and/or Services as to which Webvan has not terminated this
Contract and, with respect to the DC Project(s) as to which Webvan has
terminated this Contract, those portions of the Services already performed by
Bechtel prior to the date of termination. In addition, Bechtel shall take all
steps, including the legal assignment of its contractual rights with respect to
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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terminated Project work, which Webvan may require for the purpose of fully
vesting in Webvan such contractual rights. Notwithstanding any such assignment
of contractual rights, however, Bechtel shall reserve rights of recourse
thereunder to the extent necessary to permit Bechtel to enforce such contracts
in the event that Webvan makes any claim against Bechtel with respect to goods
or services that are the subject of such contracts. The foregoing reservation of
rights by Bechtel shall not, however, in any way impair Webvan's right to pursue
direct recourse against the parties to such contracts.
6.2.2 In the event of such termination by Webvan, Webvan shall reimburse
Bechtel for any unpaid Consultant Services, Design Services or Cost of the Work
due under Section 5, plus, in the case of Construction Services, an amount which
will increase the payments already made on account of the Bechtel Fee to a sum
which bears the same ratio to such fixed sum as the actual Cost of the Work at
the time of termination bears to the Budgeted Cost. In addition, in the event of
any such termination by Webvan of Construction Services, Webvan shall also pay
to Bechtel (i) fair compensation, either by purchase or rental, at the election
of Webvan, for any equipment Webvan wishes to continue to use, and (ii)
reasonable and necessary costs actually incurred by Bechtel to relocate Bechtel
employees to their points of origin and to dispose of materials and equipment
located at the applicable DC Property that Webvan does not purchase and other
reasonable costs of termination actually incurred by Bechtel with Webvan's prior
written approval. If, at the date of such termination, Bechtel has properly
prepared or fabricated off the applicable site any goods for subsequent
incorporation into DC Project work, and if Bechtel delivers such goods to the
applicable site or to such other place as Webvan shall reasonably direct, then
Bechtel shall be paid for such goods or materials. Bechtel shall, as a condition
to receiving the payments described in this Section 6, execute and deliver to
Webvan such documents as may be reasonably acceptable to Webvan releasing Webvan
and the applicable DC Properties from all liability to Bechtel under this
Contract, including, without limitation, the waiver of Mechanics' Lien rights
and the affidavit described in clauses (v) and (vi) of Section 5.2.2.9.
6.2.3 Bechtel hereby waives all claims for damages and loss of
anticipated profits on account of any termination by Webvan pursuant to this
Section 6.2 and, as the sole right or remedy of Bechtel on account of such
termination, Bechtel shall have the right to receive the amounts payable to
Bechtel under this Section 6.2.
6.3 Bechtel Default. Any of the following events shall be deemed to be a
material default by Bechtel under the Contract Documents (an "EVENT OF
DEFAULT"): (i) failure by Bechtel to perform any material contractual obligation
under this Contract or the Contract Documents, which failure by its nature
Bechtel has no capacity to cure; (ii) failure by Bechtel to pay any monetary
obligation under the Contract Documents for a period of five (5) days following
receipt of written notice of such failure from Webvan; (iii) failure by Bechtel
to perform any other obligation under, or to comply with any term, provision or
condition of, the Contract Documents for a period of ten (10) days following
receipt of written notice of such failure from Webvan, or such longer period
(but in no event exceeding forty-five (45) days following receipt of Webvan's
notice) as reasonably required to remedy such failure provided that Bechtel
commences such remedy within such ten (10)-day period and thereafter uses its
best efforts to complete such remedy at the earliest date reasonably possible;
(iv) the occurrence of any of the following: (a) the making by Bechtel of any
general arrangement or assignment for the benefit of creditors; (b) Bechtel
becomes a "debtor" as defined in 11 USC Section 101 or any successor statute
(unless, in the case of a petition filed against Bechtel, the same is dismissed
within sixty (60) days); (c) the appointment of a trustee or receiver to take
possession of substantially all of Bechtel's assets or of any asset used in
connection with the Project, where possession is not restored to Bechtel within
thirty (30) days; or (d) the attachment, execution or other judicial seizure of
substantially all of Bechtel's assets or of any asset used in connection with
the Project, where such seizure is not discharged within thirty (30)
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days; and (v) repeated failure (defined as a failure for which Webvan has given
more than one (1) notice) by Bechtel to perform its obligations under this
Contract or the Contract Documents in a timely fashion, which failure materially
interferes with Webvan's scheduled completion of any DC Project within the
Contract Time provided in the Contract Documents.
6.4 Webvan Remedies.
6.4.1 Upon the occurrence of an Event of Default, Webvan shall have the
right (subject to Sections 6.4.2 and 8.17) to pursue any and all remedies
available at law and in equity including, without limitation, the following: (i)
the right to keep this Contract in effect and sue Bechtel for all damages caused
by the default and recover the cost thereof; (ii) the right to cure any such
default by Bechtel and to recover any damages caused thereby; and (iii) the
right to terminate this Contract either as to the entire Project or as to any or
all Services with respect to any DC Project as to which an Event of Default has
occurred, in either case by giving Bechtel written notice of such termination.
Upon such termination, Webvan shall have the right to complete the Services or
to contract with others for completion of the Services and, in either event, to
charge the cost of completion to Bechtel. Webvan may deduct, offset and credit
such costs of completion and all other damages incurred by Webvan as a
consequence of Bechtel's default from and against any amounts that may at any
time be payable to Bechtel under this Contract. If the cost of completion
exceeds the amount that would have been payable under this Contract had Bechtel
completely performed the Services pursuant to the terms of this Contract,
Bechtel shall immediately pay the amount of such excess to Webvan. Upon
termination, Bechtel shall be deemed to have waived all claims against Webvan
for profits, loss or damage on or with respect to the uncompleted Services.
6.4.2 If the Substantial Completion of any particular DC Project occurs
after the Scheduled Date for such DC Project, then Bechtel shall pay Webvan, no
later than the time Final Payment is payable to Bechtel, an amount (the
"LIQUIDATED DAMAGES AMOUNT") equal to sum of the following: [*]. Webvan's
recovery of the Liquidated Damages Amount under this Section 6.4.2 shall
constitute Webvan's sole damages that may be recovered from Bechtel due to
Bechtel's failure to achieve Substantial Completion of a particular DC Project
by the Scheduled Date for such DC Project. Nothing contained in this Section
6.4.2, however, shall restrict Webvan from exercising any other right or remedy
or from seeking or recovering any and all damages directly or indirectly
resulting from any default of Bechtel under this Contract other than Bechtel's
failure to achieve Substantial Completion of a particular DC Project by the
Scheduled Date for such DC Project. Webvan may deduct, offset and credit the
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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Liquidated Damages Amount for any DC Project from and against any amounts that
may at any time be payable to Bechtel under this Contract, whether or not
payable to Bechtel with respect to the same DC Project as to which the
Liquidated Damages Amount has been incurred.
6.5 Possession. If Webvan terminates this Contract with respect to
Construction Services for any DC Project on account of Bechtel's default as
provided in Section 6.4, then in addition to its obligations under Section 6.2,
Bechtel shall promptly and peaceably vacate all applicable DC Property and, at
Webvan's election, Webvan may (i) take possession of such DC Property and of all
materials, equipment, tools, construction equipment and machinery thereon owned
by Bechtel and Webvan may finish the DC Project work by whatever method it may
deem expedient, or (ii) cease construction and require Bechtel promptly to
remove from the DC Property, at Bechtel's expense, all materials, equipment,
tools, and construction equipment owned by Bechtel. Webvan shall pay to Bechtel
fair compensation (at the election of Webvan either by purchase at fair market
value or by rental at the prevailing rate of the locale) for any equipment owned
by Bechtel and used by Webvan during the completion of the DC Project. Upon
demand, (a) Bechtel shall assign and deliver to Webvan all Construction
Documents, Subcontracts, documents, tangible and intangible property, and
contractual rights as Webvan may demand for the purpose of completing the DC
Project work, and (b) Bechtel shall execute and deliver to Webvan such written
documentation as Webvan may request for the purpose of evidencing the vesting in
Webvan of the rights and benefits of Bechtel with respect to the documents and
rights so delivered and assigned.
6.6 Compensation. If Webvan terminates this Contract with respect to
Construction Services for any DC Project as provided herein on account of
Bechtel's default, and Webvan then elects to complete the DC Project work,
Bechtel shall not be entitled to receive any further payments under this
Contract until the DC Project work is fully completed. Upon completion of the DC
Project work, if the expenses reasonably incurred by Webvan in completing the DC
Project work (including, without limitation, (a) payments made by Webvan to any
party supplying labor, materials, equipment, services and the like for the DC
Project work, and (b) all costs incurred by Webvan for managerial,
administrative or supervisory services in excess of such costs that Webvan would
have incurred but for Bechtel's default), plus the amounts previously paid by
Webvan to Bechtel, exceed any applicable Budgeted Cost and Bechtel Fee, then
Bechtel shall pay Webvan, upon demand, the amount of such excess, plus interest
thereon at the Default Rate. In all other cases of termination for Bechtel's
default, Webvan's liability to Bechtel shall be limited to reimbursement to
Bechtel of that portion of the applicable Budgeted Cost and Bechtel Fee which is
earned, due and payable to Bechtel as of the date of the termination, less the
sum of (i) any amounts owing to Webvan by Bechtel under the terms of the
applicable Contract Documents, and (ii) all other amounts to which Webvan is
entitled under the terms of this Contract as a result of Bechtel's default.
7.0 INSURANCE
7.1 Liability Insurance.
7.1.1 Bechtel shall purchase and maintain insurance which will protect
Bechtel and Webvan from the following types of claims that may arise out of or
result from Services under this Contract and for which Bechtel may be legally
liable, whether such operations are by Bechtel or by a Subcontractor or
Subconsultant or by anyone directly or indirectly employed by any of them, or by
anyone for whose acts any of them may be liable: (i) claims under workers' or
workmen's compensation, disability benefit and other similar employee benefit
acts which are applicable to the Services to be performed; (ii) claims for
damages because of bodily injury, sickness or disease, or death; (iii) claims
ordinarily covered by
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commercial general liability insurance; (iv) claims for damages because of
injury to or destruction of tangible property, including loss of use by third
parties other than Webvan resulting therefrom (whether resulting from operations
of Bechtel, any Subcontractor or Subconsultant, or anyone directly or indirectly
employed by any of them); (v) claims for damages because of bodily injury, death
of a person or property damage arising out of ownership, maintenance or use of a
motor vehicle; and (vi) claims involving contractual liability for Bechtel's
indemnity obligations, if insurable, under this Contract. All insurance coverage
required to be obtained and maintained by Bechtel pursuant to the terms of this
Contract and the Contract Documents shall be primary in the event of any loss,
with any insurance carried by Webvan to be excess capacity to Bechtel's
coverage. All insurance policies required of Bechtel by this Contract and any
modifications thereto shall be subject to Webvan's reasonable approval as to
form, insurer, and adequacy of protection. Bechtel shall carry insurance with
coverage and limits of liability as specified in Appendix 7.1.1 to this
Contract, entitled "Insurance Requirements." All insurance required by this
Section 7.1.1 shall be purchased from and maintained with a company or companies
lawfully authorized to do business in the State of California, who are
incorporated admitted insurance companies in such State, and who have an A.M.
Best Rating of at least A IX.
7.1.2 Bechtel shall require that each of its Subcontractors and
Subconsultants obtain and maintain, at all times during the period such
Subcontractor or Subconsultant is performing Services, the insurance described
in Appendix 7.1.1.
7.1.3 All coverages shall be written on an occurrence basis and
maintained without interruption from date of commencement of the Services until
the date of completion of all Services and termination of any coverage required
to be maintained after the completion of all Services; provided, however, that,
subject to Section 7.1.6, Bechtel shall only be required to maintain in force
the site-specific policies described in Appendix 7.1.1 through the Final
Completion of each DC Project. All coverages shall be maintained by insurance
carriers acceptable to Webvan and Webvan's lenders and landlords in all
respects. The insurance referenced in clause (iii) of Section 7.1.1 shall
contain no exclusion which denies coverage for third party bodily injury or
property damage arising out of errors or omissions in maps, plans, drawings,
designs, or inspection or construction management services.
7.1.4 Certificates of insurance acceptable to Webvan shall be filed with
Webvan prior to commencement of the Services for each DC Project. These
certificates and the insurance policies required by Section 7.1 shall contain a
provision that coverages afforded under the policies will not be modified,
canceled or allowed to expire until at least thirty (30) days' prior written
notice has been given to Webvan. If any of the foregoing insurance coverages are
required to remain in force after the completion of all Services, an additional
certificate evidencing continuation of such coverage shall be submitted upon
completion and final payment for all Services as required by this Contract.
7.1.5 Webvan and Bechtel each acknowledge that Webvan's insurance
carrier may require that those provisions of the Contract Documents setting
forth the respective insurance coverages required of Webvan and Bechtel,
respectively, be varied. In such event, Bechtel and each Subcontractor and
Subconsultant shall, upon the request of Webvan, obtain any other or additional
insurance coverage so required, provided Webvan bears any additional costs
occasioned thereby. All policies of insurance shall name Webvan, its employees,
officers, directors, shareholders, and agents, and, at Webvan's option, any
landlord or lender for the applicable DC Property and any other person(s) Webvan
deems to have an insurable interest in the DC Property and/or the DC Project
work, as additional insured(s) under the policy. Upon request by Webvan, Bechtel
shall furnish each of its Subcontractor's and Subconsultant's policies (or
certificates thereof) to Webvan before commencement of the Services, evidencing
all coverage required hereunder. In addition, Bechtel shall promptly furnish to
Webvan copies of all
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endorsements both with respect to its own insurance and that of its
Subcontractors and Subconsultants which are subsequently issued and which amend
coverage, but delivery of such endorsements will not release such parties from
their obligation to obtain the insurance required by this Contract. The
requirements for the foregoing insurance shall not diminish or limit Bechtel's
obligations to indemnify Webvan under this Contract.
7.1.6 Notwithstanding any provision in any of the Contract Documents to
the contrary, Bechtel shall obtain products and completed operations coverage
required under this Contract, which coverage shall be maintained in force for
four (4) years after Substantial Completion of each DC Project for claims for
damages to tangible property resulting from defects (latent or otherwise) in
construction of improvements to real property or in the assembly and
installation of the Operating Equipment.
7.1.7 If Bechtel fails to secure and maintain the required insurance,
Webvan shall have the right (without the obligation to do so) to secure same in
the name and for the account of Bechtel, in which event Bechtel shall pay the
cost thereof and shall furnish upon demand all information that may be required
in connection therewith.
7.2 Property Insurance.
7.2.1 With respect to each DC Project and unless otherwise provided in
any provision of the Contract Documents, Bechtel shall purchase and maintain
"builder's risk" property insurance in the amount of the Budgeted Cost plus the
Bechtel Fee (as they may be modified pursuant to this Contract) and the
applicable DC Property, as appropriate, on a replacement cost basis and with
such deductible amounts as Webvan may approve. Bechtel's insurance (i) shall be
placed in the name of Bechtel and its Subcontractors and, at Webvan's option,
shall name Webvan and any other person(s) whom Webvan deems to have an insurable
interest in the applicable DC Property and/or the DC Project work, or any part
thereof, as named insureds, and (ii) shall be payable to Bechtel for the
insureds as the respective interests of such named insureds may appear. Such
insurance shall not insure against loss, damage, or destruction of any
contractor equipment, materials and supplies or temporary buildings or other
such property located in, on or about the DC Property, which are the property of
Bechtel, or any Subcontractor or Subconsultant, or any person directly or
indirectly employed by or under contract with Bechtel or its Subcontractors or
Subconsultants, all of which shall be insured by Bechtel under a separate
policy. The policy shall be retained and held by Bechtel. A copy of each policy
required of Bechtel by the Contract Documents shall be delivered to Webvan upon
demand. Bechtel shall be responsible for the payment of all costs not covered
because of deductibles in excess of $10,000 per occurrence under Bechtel's
property insurance.
7.2.2 Intentionally omitted.
7.2.3 Property insurance shall be on a "Special Form" policy form, and
shall insure against the perils of fire and extended coverage and physical loss
or damage, including theft, vandalism, malicious mischief, collapse, false-work,
temporary buildings and debris removal, including demolition occasioned by
enforcement of any applicable legal requirements. Coverage shall also be
provided, as needed, for earthquake and flood, for inland transit of permanent
plant equipment and offsite storage exposures for materials to be incorporated
into a DC Project, and for physical damage to DC Project work resulting from
faulty workmanship, materials or design.
7.2.4 If requested by Webvan, Bechtel shall obtain and provide Webvan
with a certificate (or certificates) of any insurance carried by Bechtel
covering the DC Project work during the course of
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construction, to the extent any such insurance affects or covers any interest of
Webvan in the DC Project work.
7.2.5 Webvan and Bechtel, by their execution of this Contract, each
hereby waives all rights against each other and any of their Subconsultants,
Subcontractors, agents and employees, each of the other, for damages to property
caused by fire or other perils to the extent such damages are covered by
property insurance obtained pursuant to this Section 7.2 or any other provision
of the Contract Documents, or any other property insurance maintained by Webvan
or Bechtel applicable to the DC Project work or the applicable DC Property,
regardless of the negligence of the entity so released; provided, however, that
such waivers are effective only if the applicable insurance policies of both
parties contain a clause to the effect that such release shall not affect the
right of the insured to recover under such policy. Each party shall cause each
property insurance policy obtained by it to provide that the insurer waives all
right of recovery by way of subrogation against the other party in connection
with any injury or damage covered by such policy. Bechtel shall also require of
all Subcontractors and Subconsultants similar waivers in favor of Webvan and
Bechtel. In addition, as to any DC Property for which Webvan's landlord is
required to maintain property insurance under Webvan's lease, Webvan shall
request such landlord to obtain from its property insurer a waiver of
subrogation for the benefit of Bechtel. Bechtel shall similarly obtain from
Bechtel's property insurer of any DC Project work a waiver of subrogation for
the benefit of Webvan's landlord at the applicable DC Property, if such
landlord's insurer provides Bechtel with a waiver of subrogation.
7.2.6 A loss covered under Bechtel's property insurance shall be
adjusted reasonably by Bechtel and shall be made payable to Bechtel for the
insureds, as their interests may appear. Bechtel shall pay Subcontractors their
just portion of any insurance proceeds received by Bechtel and, by appropriate
written agreements, shall require Subcontractors to make payments to their
sub-subcontractors in a similar manner. Bechtel shall deposit in a separate
account any insurance proceeds actually received by Bechtel under any of the
applicable policies. Bechtel shall apply such proceeds only toward the repair,
restoration and performance of DC Project work and shall distribute such
proceeds in accordance with such agreement as the parties in interest may reach.
If, after such loss, no other special agreement is made, replacement of damaged
property shall be covered by appropriate Change Order. Notwithstanding the
foregoing provisions of this Section 7.2.6, if following any such loss Webvan
elects to terminate this Contract with respect to the DC Project affected by
such loss, then all proceeds of Bechtel's property insurance for such DC Project
shall be paid to Webvan.
7.3 Risk of Loss. From the date that a Notice to Proceed for a DC Project is
first executed by Webvan through and including the date of Substantial
Completion of such DC Project, Bechtel shall bear all risk of loss, casualty,
damage, destruction, theft, vandalism and malicious mischief (collectively,
"RISK OF LOSS") to and for such DC Project work and the applicable DC Property.
After the date of Substantial Completion of a DC Project, Webvan shall bear all
Risk of Loss to such DC Project and the applicable DC Property. Bechtel and
Webvan acknowledge, however, that the foregoing allocation of Risk of Loss is
made solely for the purpose of allocating responsibilities between Bechtel and
Webvan for the repair, replacement and restoration of DC Project work and the
applicable DC Properties following any loss, casualty, damage, destruction,
theft, vandalism or malicious mischief of or to such DC Project work and/or the
applicable DC Properties. Nothing contained in this Section 7.3, therefore,
shall release Bechtel or any of its Subcontractors or Subconsultants from, or
waive or modify the liability and responsibility of Bechtel and its
Subcontractors and Subconsultants for, any of their respective obligations
otherwise provided under this Contract or the applicable Contract Documents,
including, without limitation, Section 2.3.4.7, Section 2.5.10, Section 2.6, and
Section 8.16.
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8.0 MISCELLANEOUS PROVISIONS
8.1 Year 2000 Compliance Warranty. Bechtel warrants that any computer
product, application or system developed by Bechtel hereunder ("PRODUCT"), if
any, will be Year 2000 Compliant in all material respects at the time of
turnover of a DC Project. As used in this warranty, the term "YEAR 2000
COMPLIANT" means that the Product, when configured and used according to the
documented instructions on the Project, will, without manual intervention or
interruption, either meet the Year 2000 compliance standard set by a recognized
industry association or code (such as the American Society for Testing and
Materials, the American Standard Code for Information Interchange, or the
Institute of Electrical and Electronics Engineers, Inc.) or will: (i) correctly
handle and process date information before, during and after January 1, 2000,
accepting date input, providing date output and performing calculations,
including but not limited to sorting and sequencing, on dates or portions of
dates; (ii) function according to the documentation before, during and after
January 1, 2000 without changes in operation resulting from the advent of the
new century; (iii) when appropriate, respond to two-digit date input in a way
that resolves any ambiguity as to century in a disclosed, defined and
predetermined manner; (iv) store and provide output of date information in ways
that are unambiguous as to century; and (v) manage the leap year occurring in
the year 2000, following the quad-centennial rule. The "quad-centennial rule"
means (a) if the year is divisible by 4, it is a leap year, unless (b) the year
is also divisible by 100, then it is not a leap year, unless (c) the year is
also divisible by 400, then it is a leap year. Bechtel will require all
Subcontractors to warrant Year 2000 Compliance in respect of services and
products they supply to the Project.
8.2 Ownership of Data.
8.2.1 Data Defined. For the purposes of this Section 8.2, " DATA" means
all designs, plans, models, drawings, prints, samples, transparencies,
specifications, reports, manuscripts, working notes, documentation, manuals,
photographs, negatives, tapes, discs, databases, software, works of art,
inventions, discoveries, components and any Contract Documents or similar items.
8.2.2 Ownership and Use of Background Data.
8.2.2.1 All intellectual property rights, copyrights, design
rights, patents, and other similar invention rights, trademarks, trade names,
service marks, trade secrets, all applications for and rights in or to any of
the foregoing (collectively "IP RIGHTS") in or to all Data now or hereafter
owned or prepared by Webvan ("WEBVAN DATA") shall be owned solely by Webvan.
Without limiting the generality of the foregoing sentence, Webvan Data shall
include, without limitation, [*]. Bechtel shall have no ownership or other
rights or interest in any Webvan Data or any of Webvan's IP Rights. Any Webvan
Data and Webvan IP Rights disclosed to Bechtel shall be used by Bechtel solely
in the performance of Services on behalf of Webvan hereunder and shall be
subject to the obligation to keep same strictly confidential as provided in
Section 8.10.
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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8.2.2.2 All IP Rights in or to all construction and program
management systems and designs, construction estimating, measurement and
procurement control systems, plot plan processor software, and construction and
program management information technology systems and software which Bechtel
owns or has prepared prior to the date hereof (collectively, "BECHTEL BACKGROUND
DATA") shall remain the property of Bechtel. Bechtel Background Data shall not,
however, include any Webvan Data or Developed Data. Bechtel hereby grants to
Webvan a perpetual, non-exclusive, irrevocable, royalty-free license to use,
copy and modify the Bechtel Background Data to the extent necessary to operate,
use or maintain any DC Project work, but solely in connection with DC Projects
for which Bechtel has provided Services under this Contract. Except as provided
herein, Webvan shall have no ownership or other rights or interest in any
Bechtel Background Data.
8.2.3 Developed Data. All IP Rights in all Data prepared or developed by
or for Bechtel or any of its Subcontractors or Subconsultants hereunder,
including, without limitation, all Contract Documents (collectively, "DEVELOPED
DATA") shall vest in and become the sole property of Webvan, shall be treated by
Bechtel (and Bechtel shall require that all of its Subcontractors and
Subconsultants treat it) as strictly confidential, and shall at all times remain
the property of Webvan, and all works of art which constitute copyrightable
subject matter shall be considered "works made for hire" to the fullest extent
allowable under the United States Copyright Act. All such Developed Data shall
automatically and immediately constitute Webvan Data and shall be clearly
marked, where possible, as Webvan's property, and Bechtel agrees to assign and
does hereby assign all right, title and interest in, under and to the Developed
Data to Webvan. Each party agrees to perform any further acts and execute and
deliver any and all further documents and/or instruments which are considered
necessary or appropriate by Webvan to ensure that the Developed Data vests in
Webvan, including but not limited to executing assignments, oaths and
declarations for IP Rights on a country by country basis as deemed advisable by
Webvan and any other action for perfecting in Webvan all right, title and
interest in, under and to the Developed Data. At Webvan's request from time to
time, Bechtel shall furnish a copy of all such Developed Data to Webvan and
copies of designs, drawings, plans, specifications, databases and reports (in
electronic format, to the extent available). Bechtel shall maintain in good
order at each DC Project site one record copy of the drawings, Change Orders and
other modifications, specifications, product data, samples, and shop drawings
marked currently to record changes made during Development. Each of the items
specified in the foregoing sentence shall be delivered to Webvan upon completion
of the Development of the DC Project and prior to Final Payment. Bechtel shall,
however, have the right to retain one copy of each such item for Bechtel's
archive records, subject to the provisions of this Section 8.2, Section 8.10 and
any confidentiality covenant executed pursuant to Section 8.10.
8.2.4 Equitable Relief. Bechtel acknowledges that the damages that
Webvan will incur as a consequence of any breach by Bechtel or any Subcontractor
or Subconsultant of the provisions of this Section 8.2, of Section 8.10 or of
any confidentiality covenant executed pursuant to Section 8.10 of this Agreement
will be irreparable and may not readily be capable of calculation. Accordingly,
to the fullest extent permissible by Law and without limiting any other rights
or remedies that may be available to Webvan pursuant to this Contract, Webvan
shall be entitled, as a matter of right, to specific performance and other
injunctive relief to protect Webvan's interests, including but not limited to
preliminary and permanent injunctive relief. Bechtel hereby consents to the
issuance by any court of competent jurisdiction of both temporary and permanent
injunctions restraining and prohibiting Bechtel and its agents and
representatives, from violating any of the provisions of this Section 8.2, of
Section 8.10 or of any other confidentiality covenant executed pursuant to
Section 8.10. Bechtel shall cause each of its Subcontractors and Subconsultants
to consent to the foregoing injunctive relief and shall provide Webvan with
copies of such consents upon Webvan's request.
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8.3 Public Releases. Bechtel shall not make public announcements or publicity
releases related to the Project without Webvan's prior written approval,
including, without limitation, Webvan's prior written approval of the form and
content of any such announcements or releases, in both cases such approval not
to be unreasonably withheld.
8.4 Time of Performance. If the date for any payment under this Contract
falls on a Saturday, Sunday or legal holiday, payment shall be made as specified
on the next following business day.
8.5 Independent Contractor. Bechtel is and at all times shall be an
independent contractor with respect to the Services and the Project. Neither
this Contract nor any of the Contract Documents nor any course of dealing or
practice shall be interpreted as creating, or shall be deemed to create, any
employer-employee, principal-agent, partnership, joint venture or other
relationship between Webvan and Bechtel. Bechtel has and hereby retains the
right to exercise full control over the employment, direction and discharge of
all persons assisting it in the execution of the Services. Bechtel shall be
solely responsible for all matters relating to payment of its employees,
including compliance with Social Security, withholding and all other regulations
governing such matters. Bechtel shall be solely and fully responsible for its
own acts and those of its subordinates, employees, Subconsultants and
Subcontractors during the term of this Contract.
8.6 Prior Work. Any Services, including all engineering and design work
performed by Bechtel or its Subconsultants and Subcontractors for the Project
prior to the Effective Date shall be and hereby are incorporated into this
Contract and covered by the conditions and requirements set forth herein.
8.7 Notices. All notices required or permitted to be given hereunder shall be
in writing, and shall be deemed duly delivered, received and given, (i) upon
personal delivery to the address set forth below, or to such other address
designated by five (5) days' prior written notice to the other party, (ii) one
(1) business day following delivery to an overnight courier guaranteeing next
business day delivery to the address set forth below, or to such other address
designated by five (5) days' prior written notice to the other party, or (iii)
immediately upon the next business day after confirmation of facsimile receipt
at the fax number set forth below or to such other fax number designated by five
(5) days' written notice to the other party. The address of the parties for the
purpose hereof shall respectively be:
For Webvan: Webvan Group, Inc.
1241 E. Hillsdale Boulevard, Suite 210
Foster City, California 94404
Attention: Gary B. Dahl
Facsimile: 650-524-4801
For Bechtel: Bechtel Corporation
50 Beale Street
San Francisco, California 94119-3965
Attention: Thomas R. McKinney
Facsimile: 415-768-5253
8.8 Successors and Assigns. This Contract calls for the personal services of
Bechtel and, therefore, Bechtel has no right to assign, delegate or transfer,
and shall not assign, delegate or transfer, any right or obligation under this
Contract (including Bechtel's right to payments). Webvan may assign this
Contract to any person or entity controlled by, under common control with, or
which controls Webvan or to any
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lender on all or any portion of the Project, or to any entity or entities which
succeed to Webvan's interest in any of the Project, without Bechtel's consent,
or to any other persons or entities with Bechtel's consent, which consent shall
not be unreasonably withheld. Webvan shall promptly notify Bechtel of any such
assignment or transfer. Subject to the foregoing, this Contract shall extend to,
be binding upon and inure to the benefit of, the respective heirs, executors,
administrators, successors and assigns of Webvan and Bechtel.
8.9 Occupancy and Use of DC Project Work Prior to Completion. Webvan shall
have the right to occupy any DC Property or use any portion of the DC Project
work prior to Substantial Completion thereof. Unless otherwise agreed upon,
partial occupancy or use of a portion or portions of the DC Project work shall
not constitute acceptance of work not complying with the requirements of the
Contract Documents.
8.10 Confidentiality. Bechtel shall keep, and shall require all Subcontractors
and Subconsultants to keep, confidential all "Confidential Information" as
defined in and subject to the terms of the Confidentiality and Nondisclosure
Agreement attached hereto as Appendix 8.10 and made a part hereof.
8.11 Entire Agreement; Amendments; Survival of Provisions. This Contract
constitutes the entire agreement between the parties hereto relating to the
subject matter hereof and supersedes any previous agreements or understandings.
This Contract may be amended only by a written instrument signed by both Webvan
and Bechtel. All provisions of this Contract shall survive the termination or
expiration of this Contract.
8.12 Effective Date. The "EFFECTIVE DATE" of this Contract shall be the date
by which this Contract has been executed by the parties, as indicated opposite
each party's respective signature at the end of this Contract, provided that the
executed Contract has been mutually delivered. If the parties do not execute
this Contract on the same date, the Effective Date shall be the date on which
the second party delivers the fully executed Contract to the other party.
8.13 No Waiver. No term or condition of this Contract may be waived except by
an instrument duly executed by the waiving party. No delay or failure by any
party in exercising any of its rights, remedies, powers or privileges under this
Contract and no custom, practice or course of dealing between or among any of
such parties or any other person shall be deemed a waiver by such party of any
such rights, remedies, powers or privileges, even if such delay or failure is
continuous or repeated. No single or partial exercise of any right, remedy,
power or privilege shall preclude any other or further exercise thereof by any
such party or the exercise of any other right, remedy, power or privilege by
such party, including, without limitation, the right of such party subsequently
to demand strict compliance with the terms and conditions of this Contract.
8.14 Bechtel's Representations and Warranties. Bechtel hereby represents and
warrants to Webvan that it is legally empowered to provide all of the Services
required by this Contract in the states in which the DC Projects are and will be
located and the states in which all Services will be performed. At all times
during the term of this Contract, Bechtel shall, at its sole cost and expense,
keep in full force and effect all professional and business permits, licenses
and approvals affecting Bechtel's ability to perform the Services and otherwise
necessary and appropriate to enable Bechtel to perform this Contract, including,
without limitation, all professional licenses and qualifications of any
individual employees of Bechtel providing services under this Contract or any
other Contract Documents. The person executing this Contract on behalf of
Bechtel represents that this Contract is binding and enforceable against Bechtel
in accordance with its terms, and that no other signature of any party is
necessary to make this Contract
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binding on and enforceable against Bechtel. Bechtel has made these
representations and warranties to Webvan knowing that Webvan is relying to a
material extent on said representations and warranties in entering into this
Contract.
8.15 Exposure to Hazardous Materials. Webvan shall have no liability to
Bechtel, its Subcontractors or Subconsultants or any of their respective
employees or agents with respect to any exposure to asbestos, PCB's or hazardous
materials on any DC Property or elsewhere. Bechtel shall cause its
Subcontractors and Subconsultants, and the respective employees and agents of
Bechtel and all Subcontractors and Subconsultants, to take all reasonable
precautions necessary to prevent their exposure to any asbestos, PCB's and other
hazardous materials disclosed by Webvan or otherwise known by Bechtel as being
present at a DC Property. In addition, Webvan and Bechtel shall each have the
rights and obligations set forth in Section 8.1 of the General Conditions.
8.16 Indemnification. To the fullest extent permitted by Law, Bechtel shall
indemnify, defend (with counsel reasonably acceptable to Webvan) upon demand,
protect and hold harmless Webvan, its subsidiaries and affiliates and their
respective officers, directors, shareholders, agents, consultants and employees
from and against any and all causes of action, demands, losses, violations,
infringements of Law, patent, license or trademark, costs, attorneys' and
experts' fees, claims, damages, and liabilities of every kind and nature arising
out of, alleged to have arisen out of, or resulting in any way from, the
Services to be performed under this Contract by Bechtel and its Subcontractors
and Subconsultants which are the result of any willful misconduct, negligent act
or omission, or breach of any obligation or representation under this Contract
or any of the other Contract Documents, by Bechtel or any of its Subcontractors
or Subconsultants or material suppliers, or by the respective agents, officers,
employees, representatives, contractors or subconsultants of any of them. The
foregoing notwithstanding: (i) Bechtel's obligations to indemnify and hold
Webvan and its employees harmless shall in no event apply to the portion of any
claim which is due to the negligence or willful misconduct of Webvan, its
subsidiaries or affiliates or their respective officers, directors,
shareholders, agents or employees; (ii) Bechtel shall have no obligation to
protect, indemnify, defend or hold harmless any consultant of Webvan if any
claim is due in part to the negligence or willful misconduct of such consultant;
and (iii) Bechtel's foregoing indemnity obligation shall not apply with respect
to infringements of patents by any Subcontractor that Webvan has specified as
the only subcontractor that Bechtel is authorized to engage to perform
particular Services. Acceptance of any Services by Webvan shall not operate as a
waiver of the foregoing indemnification, and the foregoing indemnification shall
survive the completion of the Project and the termination of this Contract. All
of the foregoing indemnification shall (a) be in full force and effect and apply
at all times during the progress of the Services and notwithstanding the
Substantial Completion of any DC Project, and the filing of a notice of
completion or notice of similar import, or the termination of this Contract, and
at all times thereafter, (b) not be deemed limited in any way by the amount or
type of any insurance coverage that the Bechtel is required to maintain
hereunder, (c) not be limited by any limitation on amount or type of damages,
compensation or benefits payable by or for Bechtel or a Subcontractor or
Subconsultant under workers' or workmen's compensation acts, disability benefit
acts or other employee benefit acts, and (d) shall be subject to the express
limitations of liability and releases from liability set forth elsewhere in this
Contract. [*]
8.17 Limitation of Rights and Remedies.
8.17.1 Notwithstanding Section 6.4 and Section 8.16, (a) the aggregate
monetary liability of Bechtel arising from Bechtel's performance or
non-performance of Services under this Contract shall not
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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exceed the sum of [*] and (b) neither Bechtel nor any of its Subconsultants or
Subcontractors shall be liable to Webvan, and Webvan hereby releases Bechtel and
its Subconsultants and Subcontractors from any liability, for [*].
8.17.2 The limitations of liability and releases from liability under
Section 8.17.1 shall not apply to any losses, costs, claims, liabilities or
damages incurred by Webvan or any of its subsidiaries or affiliates or any of
their respective officers, directors, agents, shareholders or representatives
arising from or relating in any manner to (i) any intentional violation of
Section 8.2 (entitled "Ownership of Data"), Section 8.10 (entitled
"Confidentiality" or any confidentiality agreement executed thereunder), or
Section 8.25 (entitled "Bechtel Exclusivity") by any corporate officer of
Bechtel or any of its subsidiaries or affiliates, or by Bechtel's Program
Director for the Project or any of his direct reports, or (ii) any claims
brought by third parties.
8.17.3 The foregoing limitations of liability and releases from liability
are personal to Bechtel and its Subcontractors and Subconsultants and any of its
or their subsidiaries or affiliates and their respective officers, directors,
shareholders and agents and shall not apply to any other person or entity. No
acts, omissions, reviews, approvals or other actions hereunder by Bechtel shall
give rise to any claim by any other party against Webvan or limit the liability
of any party to Webvan. Except as expressly provided to the contrary in this
Contract, no provision of this Contract is intended to, and no provision of this
Contract shall, limit the rights or remedies of Webvan pursuant to any other
provisions of this Contract. To the maximum extent permitted by law, however,
but no further, the limitations on damages, the releases from liability, the
limitations of liability, and the exclusive remedies provisions expressly
provided in this Contract shall apply even in the event of the fault, negligence
(in whole or in part), strict liability or breach of contract of the party who
is released or whose liability is limited by such provisions of this Contract
and shall extend to such party's officers, directors, employees and agents. The
remedies provided in this Contract are exclusive, except that Webvan shall in
addition have the right to obtain specific performance and all other injunctive
relief that may be available. Bechtel disclaims, and Webvan waives, any implied
warranties of merchantability or fitness for a particular purpose with respect
to any equipment or other personal property procured by Bechtel and provided to
Webvan as part of any DC Project.
8.18 Governing Law. The validity, effect, construction, performance and
enforcement of this Contract and the rights and obligations of the parties
hereunder shall be governed in all respects by the laws of the State of
California without reference to conflicts of law, except that the enforcement of
remedies against any DC Property shall be governed by the law of the state where
the DC Property is located. Venue for the resolution of any disputes between
Bechtel and Webvan regarding the Project shall be within the courts of the State
of California.
8.19 Counterparts. This Contract may be executed in one or more counterparts.
All counterparts so executed shall constitute one agreement, binding on all
parties, even though all parties are not signatory to the same counterpart.
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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8.20 Construction. Each party has reviewed and revised this Contract. The
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not apply to the interpretation of
this Contract.
8.21 Severability. If all of any portion of any provision of this Contract as
applied to either party or to any circumstance shall be ruled by a court of
competent jurisdiction to be void or unenforceable for any reason, the same
shall in no way affect (to the maximum extent permissible by Law) that provision
or the remaining portions of that provision as applied to any parties or
circumstances or any other provision of this Contract or the validity or
enforceability of this Contract as a whole, all of which shall be enforced to
the greatest extent permitted by Law.
8.22 Headings. The headings used herein are for purposes of convenience only
and shall not be used in construing the provisions hereof.
8.23 Cooperation with Lender and Landlords. Bechtel shall at all times
cooperate with any lender and/or landlord on the Project, any DC Property, any
DC Project, or any portion thereof, including, without limitation, executing any
agreements, documents, acknowledgments, certificates and/or amendments to this
Contract as Webvan and/or such lender or landlord may reasonably require in
connection with any sale or financing, whether construction or permanent, for
the Project, any DC Property, or any portion thereof, as further provided in the
General Conditions. In no event, however, shall Bechtel be required to execute
any such document or amendment which would adversely affect Bechtel's
limitations of liability or other rights under this Contract, unless agreed to
by Bechtel in its sole discretion.
8.24 Attorneys' Fees and Costs. In any action arising under or in connection
with this Contract, the prevailing party in such action shall be awarded, in
addition to other legal or equitable relief, its reasonable costs and expenses
and reasonable attorneys' fees.
8.25 Bechtel Exclusivity.
8.25.1 Notwithstanding any term or condition of this Contract or any
Contract Documents to the contrary, neither Bechtel nor any entity controlling,
controlled by, or under common control with Bechtel shall, for the Exclusive
Period, provide any goods or services substantially similar to the Services
described in this Contract for distribution or delivery facilities of any person
or entity in the business (a "RELEVANT BUSINESS") of [*]. For purposes of this
Section 8.25, the "EXCLUSIVE PERIOD" shall commence [*]
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
44
46
[*].
8.25.2 Webvan acknowledges Webvan's intent to engage Bechtel in the
future to provide Services similar to those described in this Contract for
Webvan DC's outside the United States of America ("USA"). Bechtel acknowledges,
however, that this Contract creates no obligation of Webvan to engage Bechtel
for such services outside the USA. If, therefore, [*].
8.25.3 Bechtel acknowledges that the damages that Webvan will incur as a
consequence of any breach by Bechtel of the provisions of this Section 8.25 will
be irreparable and may not readily be capable of calculation. Accordingly, to
the fullest extent permissible by Law and without limiting any other rights or
remedies that may be available to Webvan pursuant to this Contract, Bechtel
hereby consents to the issuance by any court of competent jurisdiction following
any breach of this Section 8.25 by Bechtel of both temporary and permanent
injunctions restraining and prohibiting Bechtel and its agents and
representatives from violating any of the provisions of this Section 8.25.
8.26 Days. Whenever used in this Contract, the word "days" shall refer to
calendar days except where otherwise expressly provided to the contrary.
9.0 APPENDICES
9.1 The following Appendices are incorporated into this Contract by this
reference:
Contract for Turnkey Design/Build Construction and Related Services - Webvan Group Inc. and Bechtel Corp.
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