BAKER ELECTRIC & RENEWABLES LLC’S STANDARD TERMS AND CONDITIONS FOR THE SALE OF SERVICES AND PRODUCTS
The following terms and conditions of sale (hereinafter the "Terms") of Baker Electric & Renewables LLC (hereinafter “Baker”) shall apply to all transactions between Baker and its contracting party (hereinafter the "Customer"). Acceptance by Customer of Baker’s performance of services or delivery of products shall constitute Customer’s acceptance of these Terms. All offers, quotes, proposals by Baker will be made, and all contracts will be concluded exclusively on the basis of these Terms, which shall control over any inconsistent or additional terms or conditions proposed by Customer in any subcontract, purchase order or other document. No modification of these Terms (including changes in scope, specifications, price or delivery schedule) shall be of any force or effect unless made in writing and signed by Baker. Baker hereby rejects any additional or inconsistent terms or conditions contained in or incorporated by reference in any subcontracts, purchase orders or other documents of Customer that already have been or hereafter may be proposed to Baker, unless Baker has expressly consented to such inconsistent terms or conditions in writing and signed by Baker.
- Payment: Payments due to Baker shall be payable within fifteen (15) days of Baker’s invoice and shall not be contingent upon payment by Owner or Prime Contractor. Late payments shall accrue interest at 2% interest per month or the amount allowable per law. Customer Disputed payment amounts shall not be cause to withhold timely payment of undisputed amounts, and late payments shall entitle Baker to stop Work until such time as it is brought current, including additional cost incurred in de-mobilizing and re-mobilizing and any increase in the cost of labor and materials during the Work stoppage. No retention shall be held from Baker.
- Changes: The parties shall mutually agree upon a Work progress schedule, including any changes to the schedule. Baker shall receive an equitable adjustment of time and costs for all changes in the Work and increases in time and costs caused by Owner, Customer, Baker, or their respective agents, other contractors, and their subcontractors and suppliers of every tier or anything acting on their behalf (collectively, “Compensable Delays”). Baker shall receive additional time as reasonably necessary to complete performance of the Work due to events outside the control of Baker, including, but not limited to, force majeure events, acts of God, inclement weather, strikes or other labor activities, epidemics, pandemics, government-ordered restrictions and quarantines, and Covid-19 impacts not known at the time of this proposal (collectively, “Excusable Delays”). In the event that Customer and Baker cannot mutually agree on the compensation for changed work, Baker shall perform the Work on a time and material basis using Baker’s labor and equipment rates.
- Differing Site Conditions: Baker is only responsible for visible and discoverable site conditions which Baker actually discovers through a visual inspection of its work area and through bid documents received from Customer. Baker is not responsible for subsoil conditions unless such conditions are specifically included in Baker’s proposal. (A) Baker shall promptly, and before the conditions are further disturbed, give a written notice to Customer of (1) subsurface or latent physical conditions at the site which differ materially from those indicated in the Contract Documents or (2) unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Subcontract. If the conditions do materially so differ or are deemed to so differ and cause an increase or decrease in the Baker’s cost of, or the time required for, performing any part of the Work under this proposal, whether or not changed as a result of the conditions, an equitable adjustment shall be made under this clause and the agreement modified in writing accordingly.
- Escalation: The proposed contract price for this project has been calculated based on the current prices for the labor, equipment and materials needed on the project. The market for equipment, labor and materials are volatile, and sudden price increases could occur. Baker agrees to use its best efforts to obtain the lowest possible prices from available suppliers and vendors; however, in the event of a significant delay or price increase of materials, equipment, or labor during the performance of the contract, Baker shall be entitled to an equitable adjustment in the time of completion, contract requirements, and the contract price, in an amount reasonably necessary to cover any such significant price increases including markup. Such price increases shall be documented through vendor or manufacturer notifications, quotes, invoices, or receipts. Where the delivery of materials or equipment is delayed, through no fault of Baker, as a result of material shortage or unavailability, Baker shall not be liable for any additional costs or damages associated with such delay(s).
- Limited Warranty:
Workmanship Warranty. Baker agrees to perform all services in accordance with generally accepted professional standards. The services, which do not so conform, shall be corrected by Baker upon notification in writing by Customer. Baker shall make, or commence to make, repairs within three business (3) days of its receipt of written notice from Customer. Baker warrants labor performed to one (1) year from the completion of its Work.
Equipment Warranty. Warranties issued by manufacturer of materials or equipment installed by Baker under the applicable Scope of Work will be provided as provided in the manufacturer warranty. The Equipment Warranty does not cover damage to equipment, components or parts resulting in whole or in part from improper maintenance or operation or from their deteriorated condition. If, during the one (1) year labor warranty period, Customer requests a site visit or any service, and the issue is not covered by a manufacturer’s warranty, or is not due to errors by Baker, including, but not limited to, cleaning of equipment, shutoff of breakers, etc., Baker will charge $99/hour for the investigation and provide Customer with a price quote for the remaining services. Customer may then elect whether to have Baker provide the services at that price. Customer will, at its cost, provide Baker with unobstructed access to the defective services, as well as adequate free working space in the immediate vicinity of the defective services and such facilities and systems as may be necessary in order that Baker may perform its warranty obligations.
The warranties provided herein does not include “in and out” costs, demolition, modification, or removal of equipment, material, or structures to facilitate warranty repairs. Baker dismisses all implied warranties of merchantability and fitness for a particular purpose. Correction of non-conformities shall constitute the Baker’s sole liability and Customer’s exclusive remedy for failure of Baker to meet any it’s warranty obligations.
Warranty Transfer. Customer may not otherwise transfer its rights or obligations under this warranty, and any transferee of the system will be bound by all remaining obligations and duties of customer under the agreement and this warranty. Customer must provide evidence that Customer maintained and operated the System in accordance with the manufacturers’ recommendations and notify Baker of the sale of its Property within thirty (30) days. Failure to do so constitutes a material breach of this Agreement and will mean that the warranty will not transfer the new owner. Baker can only transfer Baker’s warranties; manufacturers may have separate requirements to transfer their warranties. Baker will charge the transferor a warranty transfer fee of twelve hundred dollars ($1,200) per transfer.act if any.
- Bonds: Performance and Payment bonds, if required, shall be (i) procured at the expense of Customer; (ii) in standard industry form; and (iii) name Customer as the sole beneficiary.
- Insurance: Baker shall maintain, at its expense, insurance coverage until work is completed. Coverage shall be in an amount of not less than One Million Dollars ($1,000,000.00) per occurrence and not less than Two Million Dollars ($2,000,000.00) aggregate. A Certificate of Insurance can be provided upon request.
- Protection of Work: Baker shall be responsible for, and will bear any loss or damage to, Baker’s Work while it is actively being performed, except where such loss or damage results from the actions, fault or negligence of Owner, Customer, or their agents or other contractors or suppliers of every tier or anyone acting on their behalf. Baker shall not be responsible for overall site security in areas where Baker is not performing Work. Baker’s responsibility for protection shall terminate upon the completion of Baker’s Work or the beneficial use or occupancy of Baker’s Work, whichever is earlier. Baker shall not be responsible for work performed by others outside of its authority or control.
- Safety: Baker shall be responsible for the safety of its employees and shall require the same of its subcontractors and material suppliers. Nothing shall limit the responsibility of others (including Customer and its other subcontractors of every tier and the suppliers to any of them) for safety and a safe place to work under applicable laws and regulations or require Baker to assume responsibilities imposed by law or contract on such others.
- Permits: Baker shall not be responsible for the procurement or payment of any permits, fees, royalties, or licenses, except for business and Baker’s licenses that can only be acquired by Baker, unless specifically included in Baker’s proposal.
- Indemnity: Baker’s obligation to defend, indemnify, and hold harmless an indemnified party for injuries, damages, or losses arising out of the alleged or actual acts or omissions of Baker and strictly in proportion to Baker’s fault. Baker shall not be required to defend, indemnify, or hold harmless an indemnified party for injuries, damages, or losses arising out of the alleged or actual acts or omissions of such indemnified party.
- Suspension: In the event of a suspension for convenience, Baker shall be entitled to additional cost incurred in de-mobilizing and re-mobilizing and any increase in the cost of labor and materials during the suspension.
- Termination: Baker shall be entitled to a reasonable opportunity to cure an alleged default prior to Customer being entitled to terminate Baker for default after written notice by Customer. In the event of a termination for default, Customer shall have no claim to Baker’s equipment, tools, or appliances, and shall be limited to actual costs of such default only. In the event of a termination for convenience, Baker shall be entitled to payment for (i) the pro rata amount of work performed, (ii) costs incurred to demobilize and make the site safe, and markup for general overhead and profit.
- Prevailing Party: In any arbitration or litigation arising out of or related to this Subcontract, the arbitrator or judge shall award to the prevailing party the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration or litigation.
- Choice of forum and choice of law. Any dispute that arises under or relates to this Agreement (whether contract, tort, or both) shall be resolved by arbitration in the State of California. To the extent permitted by law, venue shall be in the County of San Diego Superior Court, Central District or the city and county where the work is performed. This Agreement, and any dispute arising from the relationship between the parties to this Agreement, shall be governed by California law, excluding any laws that direct the application of another jurisdiction’s laws.
- Time Is of the Essence: Baker shall only be responsible for delays to the extent caused by Baker, Baker shall be compensated for costs incurred due to delays caused by others, and the time of performance shall be increased via a change order in the event such delays occur.
- Waiver of Consequential Damages: Baker shall not be liable for any consequential, incidental, indirect, or punitive damages including loss of use, lost profits, loss of business opportunity, loss of business goodwill, or liquidated damages. Customer
- Notice: All notices shall be in writing. Baker shall have three (3) business days written notice to commence to cure an alleged default.
- Labor: Baker is signatory and is bound to various collective-bargaining agreements with the International Brotherhood of Electrical Workers (“IBEW”) and certain of its affiliated local unions. Those IBEW collective-bargaining agreements cover the scope of work that is described in this proposal. Baker is not signatory or bound to any agreement with any other labor organization. Nothing in this proposal requires Baker to become signatory or bound to the terms and conditions of any collective-bargaining agreement with the Laborers' union, Carpenters union, or any other labor organization.
- Hierarchy: In the event of a conflict among contract documents, the order of precedence shall be as follows: (1) Baker’s proposal; (2) these Terms and Conditions; (3) the Prime Contract if any.
