General Terms and Conditions
IMPORTANT: Party’s acknowledge this contract is being executed during an epidemic/pandemic of COVID 19 which presents a challenging and evolving work environment. The parties agree to take reasonable actions to prevent, mitigate, and overcome the effects of COVID 19, which may include but are not limited to contamination, scarcity of labor, supply chain failures, quarantine, or orders or recommendations of local, state, and federal government ("COVID19 Effects"), on performance of this contract. Neither Party will be responsible or liable to the other Party for delay or non-performance of this contract if such delay or non-performance is caused by COVID 19 Effects not preventable through a Party's exercise of reasonable diligence, provided the Party seeking relief from its performance obligations gave written notice of such condition to the other Party within reasonable period of time after commencement of the specific COVID 19 Effect causing the delay or non-performance.
- Definitions/Acceptance
1.1. Pacific Maritime Group, Inc. (dba Pacific Tugboat Service) (PMG)is the entity specified on the Purchase Order (PO).
Contract means together, in the following order of precedence: (1) the PO; (2) these Terms and Conditions; and (3) any other incorporated, attached, or referenced exhibit, or other document.
Party means PMG or Co-Party.
Co-Party is the party that is hiring PMG to provide services.
Work means all deliverables, materials, services, and related labor necessary for deliverables under the Contract.
Customer(s) means any higher tier owner or contractor (including government entities as applicable).
1.2. Co-Party’s acknowledgment, or acceptance or commencement of performance, or acceptance of any payment, shall constitute Co-Party’s unqualified acceptance of these T&Cs and Contract. - PMG services
2.1. This section shall govern the provision of services by PMG to Co-Party.
2.2 PMG maintains a price list for marine service items and tasks including hourly or straight time rates. For hourly rate items: minimum 4 hours per call-out (2 hours for Ship Assist), with time over 4 hours (2 hours for Ship Assist) charged in 15-minute increments, rounded up to the next quarter hour. Time charged for all vessels and barges are portal to portal, from crew-on time and concluding at crew-off time. For straight time rate items: up to eight consecutive hours, 0500-1700, M-F, except holidays. Overtime rates apply to any hours that are not straight time hours, and also for short-notice or emergent work defined as less than 12-hour notice.
2.3 For barge/vessel moves requiring two or more tugs, PMG may in its sole discretion add a Docking Master to the crew to better provide for safe maneuvering.
2.4 If equipment and personnel are provided by Co-Party and the rates/charges are based on information provided by PMG to Co-Party in advance the following shall apply: Should information provided by Co-party prove to be inaccurate or Work requires additional time, personnel or equipment to be safely and/or efficiently accomplished, PMG shall have the right to take additional time or employ additional equipment or personnel as it deems necessary, and Co-Party shall pay for the same at PMG's current rate schedule. Similarly, if Co-Party delays Work or requires additional time be taken, or if Co-Party requests additional equipment or personnel, the same shall be provided by PMG subject to these terms and conditions and at PMG's current rate schedule.
2.5 Co-Party shall be entitled to utilize cables, slings and other portable gear and equipment to the extent available from PMG, at no extra cost but at Co-Party's sole risk and judgment as to fitness and suitability, and for any loss/damage to the same which results from Co-Party's use or otherwise with respect to the lift services being provided.
2.6 Fuel Surcharge: A Fuel Surcharge is assessed based on $1.00 per gallon for Ultra-Low Sulfur No. 2 Diesel Fuel in the port(s) where the services are performed. A minimum fuel surcharge of 5% (15% for Ship Assist) will apply. If requested, a Fuel Surcharge estimate will be provided at time of scheduling.
2.7 Regulatory Impact Surcharge: For Standard Service, a Regulatory Impact Surcharge of 10% of the vessel/equipment total will be assessed.
2.8 Admin/Coordination Fee: A fee of not more than 10% of total invoice for goods and/or subcontract services will be added to cover costs of administration and coordination (except for designated “pass-through only” items).
2.9 Quoted Prices and Terms: All PMG-provided equipment and services are subject to availability, and PMG’s standard price list and terms are subject to change. Price, service, and equipment quotes will become binding only upon PMG’s receipt of a signed agreement and a required deposit (if any).
2.10 These standard service terms may be modified only by a customized PO or service agreement, signed by both parties.
2.11 Cancellation schedule for reserved services: for receipt of written cancellation 31+days prior to commencement, 25% cancellation fee; for 7-30 days’ notice, 50% fee; for 2-6 days’ notice, 75% fee; for less than 2 full days, 100% fee (i.e., no refund). - Delivery/Timely Performance
3.1. If Co-Party is shipping materials to PMG, delivery and risk of loss is FOB Destination. Co-Party shall pack all Work and include in all shipments any applicable Safety Data Sheets and a complete packing list that specifies the PMG’S Contract number and the date of shipment.
3.2. Co-Party’s timely performance is a critical element of the Contract and time is of the essence. Co-Party shall notify Buyer of any delay, provide a written recovery schedule, and expedite shipping at Co-Party’s expense. Co-Party shall not deliver Work early, unless authorized in writing. - OTHER CHARGES
Co-Party shall be responsible for any port, wharf, dockage, terminal and/or other charges and expenses for or associated with the item(s) being lifted and/or the lift services, including without limitation all fees, dues, taxes and assessments (except taxes upon PMG's receipt of hire/charges hereunder). - Co-Party's Warranties and Performance
5.1 Co-Party assumes sole responsibility for knowledge of the item(s) being lifted, and hereby warrants that it/they do not contain any hazardous, noxious, or dangerous substances of any type or nature whatsoever. PMG will not undertake any lift involving any hazardous, noxious, or dangerous substances or materials. Co-Party shall be solely responsible for the safety of any port/berth/place at which equipment and/or personnel must work in order to accomplish the lift project.
5.2 It is specifically agreed that PMG is unfamiliar with the item(s) to be lifted. Co-Party shall be solely responsible for identifying to PMG in advance all weights, lifting points, balances, centers of gravity and potential problems associated with the lift project. Co-Party shall independently review and approve all lifting methods and procedures.
5.3 Co-Party shall be responsible and shall promptly reimburse PMG for any loss and/or damage to cables, slings and other portable gear and equipment utilized for the lift project at the actual cost to replace or repair the same. - Taxes
6.1. If Co-Party is providing Work to PMG it shall be responsible for, and Co-Party’s prices shall be inclusive of, all applicable federal, state, local, and international taxes, duties, tariffs, licenses, export/import authorizations, permits, and similar fees imposed by any government; such charges shall be identified on Co-Party’s invoice. - Insurance/Entry onto Premises
7.1. Co-Party shall maintain (and require its subcontractors at any tier to maintain) customary liability insurance. In the event that Co-Party, its employees, agents, or subcontractors (at any tier) enter the site(s) of PMG or PMG’s Customer for any reason in connection with the Contract, Co-Party and its subcontractors (at any tier) shall procure and maintain worker’s compensation.
7.2. All insurance maintained hereunder shall be considered primary and exclusive.
7.3 Entry onto Premises. All Co-Party’s personnel, agents, or subcontractors that enter a PMG’s or PMG’s Customer’s premise shall be a “U.S. Person” per 22 C.F.R 120.15 and comply with all PMG’s security protocols and on-premises rules. Co-Party/Visitor permits (when applicable for projects) and insurance certificates must be received by PMG prior to the project or event requiring admission. Any delay or omission to correct a violation of these requirements does not waive PMG’s right to subsequently enforce them.
7.4. A Co-Party/Visitor to PMG’s premises must provide the following insurance. Unless otherwise stated in the Contract, and without prejudice to PMG’s rights and Co-Party’s/Visitor’s indemnity obligations elsewhere set out, Co-Party/Visitor shall keep and maintain in effect, at its sole cost and expense, the following policies of insurance:
(a) Commercial General Liability insurance with coverage to include broad form property damage, personal injury, premises, completed operations, and products and contractual liability for the liability assumed under the Contract and independent contractors; and with a minimum bodily injury and property damage combined single limit of $5,000,000 in the aggregate.
(b) When Co-Party/Visitor, its employees, agents, and subcontractors (including delivery persons) enter any facility owned, leased, or operated by PMG, then the Co-Party/Visitor shall maintain:
i. Commercial Automobile Liability insurance with coverage to include owned, hired and non-owned vehicles; with a minimum bodily injury and property damage combined single limit of $5,000,000 per occurrence.
ii. Workers’ Compensation and Longshore and Harbor Workers’ Compensation Act insurance with minimum limits of liability conforming to the statutory requirements of the state where the work is to be performed and the United States of America, respectively; and
iii. Employer’s Liability insurance with minimum limits of $1,000,000.
(c) If Co-Party’s/Visitor’s employees, subcontractors, or suppliers are assigned aboard a vessel for any reason, the Co-Party/Visitor shall maintain Maritime Employer’s Liability (Jones Act) coverage with minimum limits of liability of $5,000,000 in the aggregate.
(d) Each such policy shall be underwritten by an insurance company with minimum A.M. Best ratings of “A-, VII” or equivalent and shall provide that it is primary insurance to and non-contributing with any other insurance carried by PMG. The policies referred to above shall name PMG as an “additional insured” and shall contain a waiver of subrogation in favor of PMG.
(e) Certificates evidencing Co-Party’s/Visitor’s compliance with these insurance requirements shall be delivered to PMG upon issuance of the contract and renewals thereof sent to PMG upon expiration of the respective policy terms. Co-Party/Visitor, its insurance broker, or insurer shall be obligated to immediately notify PMG in writing of any cancellation of required coverage or any material change therein. - Indemnification
8.1. Indemnification. Co-Party shall indemnify and hold harmless PMG against all losses arising out of or related to Co-Party’s involvement with the Contract, including but not limited to costs, penalties, damages, liabilities, fees, and expenses. (This indemnity and hold harmless includes PMG’s directors, officers, employees, suppliers and subcontractors at any tier.) However, this does not apply to losses arising from PMG’s sole negligence.
8.2. Damages limitation. PMG shall be liable for breach of its payment obligations, if any, but shall have no liability for any other breach of contract matter arising under or related to the Contract. In no event shall the Parties (or their employees, agents, or representatives) be liable for any special, incidental, indirect, punitive, or consequential damages arising from a breach of contract, including any lost or anticipated profits or unabsorbed indirect costs or overhead. - Disputes
9.1. The Parties agree to timely notify each other of any claim or dispute arising under the Contract. Co-Party shall continue working diligently during any dispute.
9.2. To the extent allowed by law, the Parties waive any right to trial by jury.
9.3. Any controversy or claim arising out of or relating to this Contract, or the breach thereof, whether in contract, tort, or equity, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Venue shall be San Diego County, California. The Parties shall equally share all AAA arbitration fees and costs. - Term and Termination
10.1. This Agreement commences from Contract acceptance through final payment, unless earlier terminated under this Section.
10.2. The Parties may terminate the Contract upon mutual written agreement.
10.3. Upon Co-Party’s breach of the Contract, PMG may terminate the Contract with 5 days’ written notice, even if the breach is not “material.” - General Clauses
11.1. Entire Agreement: The Contract is the entire agreement of the Parties and supersedes all other discussions or agreements on this subject. PMG expressly rejects any additional or different terms proposed by Co-Party. Amendments or changes to the Contract shall be in writing and must reference the Contract and be signed by each Party. Nothing in these Terms and Conditions amends or supersedes any master agreement, long term supply agreement, proprietary information agreement, or indemnity agreement between the Parties.
11.2. Notices: All notices must be sent to the applicable Party’s authorized point of contact. Email constitutes notice only if receipt is acknowledged by a reply email (not a read receipt or automatic reply).
11.3. Severability: In the event any provision or clause of the Contract conflicts with governing law, or a court of competent jurisdiction holds invalid any such provision or clause of the Contract, such provision or clause shall be deemed to be modified to reflect as nearly as possible the Parties' intent. The remainder of the Contract shall remain in full force and effect.
11.4. No Waiver: Any delay, waiver, or omission by PMG to exercise any right or power arising from a breach or default in any of the terms, provisions, or covenants of this Terms and Conditions or Contract, shall not be construed to be a waiver by PMG of any subsequent breach or default of the same or other terms, provisions, or covenants.
11.5. Choice of Law and Venue. This Agreement shall in all respects be governed by and construed in accordance with the laws of the State of California, including with respect to all matters of construction, validity and performance, without giving effect to any choice of law rules thereof which may direct the application of the laws of another jurisdiction. Venue of any dispute resolution, in any forum, shall be San Diego County.
11.6. Counterparts. This Agreement may be executed in several counterparts, each of which is an original and all of which constitute one and the same instrument. Any electronic facsimile or PDF transmission by a Party of any signature of that Party to the other Party shall be deemed an original and shall bind such Party sending such transmission.
11.7. Amendments. No amendments or modifications of this Agreement shall be valid unless evidenced in writing and signed by a duly authorized representative of the Party against which enforcement is sought.
11.8. No Third-Party Rights. This Agreement and all rights hereunder are intended for the sole benefit of the Parties hereto and any Indemnified Parties, and shall not imply or create any rights on the part of, or obligations to, any other Person.
11.9. Survival of Provisions. All provisions of this Agreement which are expressly or by implication to come into or continue in force and effect after the expiration or termination of this Agreement shall remain in effect and be enforceable following such expiration or termination.
Customers/Visitors agree to this Notice of Terms and Conditions, and as a pre-condition to admittance to PTS property and/or services.
Revision date: 3/15/2023