IMPORTANT: COVID 19 may impact availability of vessels, equipment and crew beyond our control. PMG is following all Federal, State and local laws, regulations and guidelines to the best of our ability. Our intent is to provide essential support and services in the safest manner possible. We apologize for any inconvenience, added cost or disruption this may cause.
- 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, with time over 4 hours 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 Bargemaster to the crew to better provide for safe maneuvering. The Bargemaster will be billed at PMG’s price list labor rates.
2.4 Fuel Adjustment Factor for Ship Assist: A Fuel Adjustment shall apply based on $1.00 per gallon for Ultra-Low Sulfur No. 2 Diesel Fuel in the port(s) where the services are performed. If requested, a Fuel Adjustment Factor estimate will be provided at time of scheduling.
2.5 Fuel Surcharge for standard service: A Fuel Surcharge of $29 per hour per vessel/crane/other equipment shall apply based on $1.00 per gallon for Ultra-Low Sulfur No. 2 Diesel Fuel in the port(s) where the services are performed. For hourly work, the Fuel Surcharge beyond the first hour of service shall be calculated in 15-minute increments, rounded up to the next quarter hour. If requested, a Fuel Adjustment Factor estimate will be provided at time of scheduling.
2.6 Admin/Coordination Fee: 5% 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).
2.7 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).
2.8 These standard service terms may be modified only by a customized PO or service agreement, signed by both parties.
2.9 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.
- Taxes
4.1. 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
5.1. 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.
5.2. All insurance maintained hereunder shall be considered primary and exclusive.
5.3 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.
5.4. 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:
- 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.
- 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
6.1. 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.
6.2. 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
7.1. 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.
7.2. To the extent allowed by law, he Parties waive any right to trial by jury.
7.3. 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
8.1. This Agreement commences from Contract acceptance through final payment, unless earlier terminated under this Section.
8.2. The Parties may terminate the Contract upon mutual written agreement.
8.3. 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
9.1. 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.
9.2. 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).
9.3. 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.
9.4. 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.
9.5. 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.
9.6. 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.
9.7. 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.
9.8. 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.
9.9. 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.