Epc Template

8/10/2019 Epc Template

1/59

EPC Template

This EPC contract contemplates that a single contractor will be responsible for the entire project -- fromdesign through construction and testing. If the project developer desires to have the same firm also operate

the facility in commercial operation, the contractor could be designated the operator and a separatecontract eecuted, although that arrangement is not re!uired by the language of the EPC contract.

Engineering, Procurement and Construction Agreement

This Engineering, Procurement and Construction Agreement (the Agreement) is madeand dated as of "#ate$ between "%egal name and description of organi&ation of EPCfirm$ (Contractor), and "%egal name and description of organi&ation of Projectdeveloper$ (Owner). Each of Owner and Contractor may be referred to indiidua!!yas a Party, and together they may be referred to as the Parties.

"ecita!s

A. Owner is "'rief description of (wner and )ET project plans$ .#. Contractor is "'rief description of Contractor and professional capabilities$ .C. Owner desires to construct and o$erate %&escri$tion of "ET faci!ity, with $articu!arsas to renewab!e energy techno!ogy, si'e and intended business use (aci!ity) andContractor is wi!!ing to $erform design, engineering, construction wor* to bring theaci!ity to commercia! o$eration, a!! $ursuant to contract with Owner. Contractor is a!sowi!!ing to o$erate the aci!ity commercia!!y under se$arate agreement with Owner.&. Owner intend to finance the dee!o$ment of the aci!ity through "'rief descriptionof structure of financing arrangement$ .

E. Contractor is further wi!!ing to act on beha!f of Owner by coordinating and enforcingthe +ubcontractor Protections as set forth in this Agreement.. The Proect re-uires "'rief description of types of regulatory or other governmentalapprovals re!uired$ (Authori'ations).. Owner desire that Contractor $erform on beha!f of Owner the duties to act as genera!contractor for the design, construction, $erformance of start u$ and testing of the aci!ity,and dee!o$ment of the o$eration manua!(s) for the aci!ity u$on the terms andconditions set forth in this Agreement.


2/59


3/59

8.6. A$$roa!s. Contractor has obtained and is in com$!iance with a!!oernmenta! Authori'ations (other than oernmenta! Authori'ations !isted in +chedu!eB4, which Contractor wi!! obtain as indicated in that schedu!e) that Contractor is re-uiredto obtain hereunder and for the a!id e;ecution, de!iery and $erformance by Contractorof this Agreement, and a!! such !ega! entit!ements are in fu!! force and effect.

8.6. :ua!ification. Contractor (inc!uding where a$$!icab!e, through itsre!ationshi$s with +ubcontractors and its Affi!iates) $ossesses the *now7how andwherewitha! to oersee the design, engineering, $rocurement and construction wor*needed to com$!ete construction of the aci!ity.

+.+ - )epresentations by (wner. (wner re$resents that98.8.6 Organi'ation and -ua!ification. Owner is a "#escription of legal

organi&ation$ du!y organi'ed and a!id!y e;isting under the !aws of "urisdiction$.4t has a!! necessary $ower and authority to carry on its business as $resent!y conducted, toown or ho!d its $ro$erties, and to enter into and $erform its ob!igations under thisAgreement.

8.8.8 Authori'ation, a$$roa!s, no defau!ts. The e;ecution, de!iery and$erformance of this Agreement by Owner (6) has been du!y authori'ed by a!! re-uisitecom$any actionD (8) to the best of Owner 5ega! $roceedings. There is no action, suit or $roceeding, at !aw or in e-uity,or officia! inestigation by or before any goernmenta! authority, arbitra! tribuna! or anyother body $ending or, to the *now!edge of Owner threatened, against or affecting 1EPower or any of its $ro$erties, rights or assets, which cou!d reasonab!y be e;$ected toresu!t in a materia! aderse effect on Owner


4/59


5/59

+ubcontractors and +u$$!iers, which obections and concerns sha!! be du!y considered byContractorD $roided, howeer, that the fina! decision and res$onsibi!ity as to whether tocontract with any $articu!ar +ubcontractor or +u$$!y sha!! reside with Contractor.

>.8.6 Proect Engineer. Contractor sha!! retain an engineer for the Proect(Engineer) or $erform the duties of the Engineer. Engineer or Contractor sha!! be

retained under a se$arate Engineer


6/59

of P1FC1, wi!! se!ect the Prime +ubcontractors by an ea!uation $rocess that ea!uates$otentia! candidates based u$on re!eant criteria, inc!uding e;$erience, re$utation, anddemonstrated success in re!eant construction $roects. The contracts between Contractorand the Prime +ubcontractors (the Prime +ubcontractor Contracts) sha!! $roide for$ayment to the Prime +ubcontractors on a cost7$!us incentie basis, with the Prime

+ubcontractors gien incenties for com$!eting the Proect on time, within budget, andwith good safety records. Each Prime +ubcontractor Contract sha!! a!so gie Contractorthe right to ins$ect and reiew that Prime +ubcontractor.8.? :ua!ity Contro!F:ua!ity Assurance. Contractor sha!! retain a -ua!ified$erson or firm to be res$onsib!e for -ua!ity contro! and -ua!ity assurance of thecom$!eted 3or* (the :AF:C &irector), subect to the a$$roa! of Owner, not to beunreasonab!y withhe!d. The :AF:C &irector sha!! be res$onsib!e, among other things,for dee!o$ing $rocedures for testing materia!s, the oersight of materia!s testing,ins$ecting fie!d assemb!ed e-ui$ment (such as -ua!ity contro! of we!ding $rocedures andwe!ding testing), erifying :AF:C of materia!s used in the manufacture of maor

e-ui$ment and erifying that a!! e-ui$ment and materia!s de!iered to the +ite meet thes$ecifications of Engineer. The :AF:C &irector sha!! re$ort to P1FC1, Contractor andthe Owner on a biwee*!y basis, or more fre-uent!y as needed. The ro!e and s$ecificres$onsibi!ities of :AF:C &irector with res$ect to the Proect sha!! be more $articu!ar!yset forth in the agreement between Contractor and :AF:C &irector (the :AF:CContract).

>.8.@ +afety &irector. Contractor sha!! retain a -ua!ified $erson or firm to sereas the safety director for the Proect (the +afety &irector), subect to the a$$roa! ofOwner, not to be unreasonab!y withhe!d. 4f re-uired by either Owner.6 Contractor ac*now!edges that it has reiewed the round 5ease and hasmade reasonab!e efforts to inestigate the $hysica! conditions affecting the +ite,consistent with the access that has been to Contractor and its agents. "%imitations, e.g.,9Contractor has not been granted access to and has made no investigation or inspectionof any of the off-/ite staging areas, including the %ay #own :reas, the /oil #isposal

:rea, or the Easement :reas, beyond drawings and other information previously

provided by (wner on which Contractor has relied.;]


7/59


8/59

affected +ubcontractors to manage and dis$ose of the waste in com$!iance witha$$!icab!e 5aw and ood Jti!ity Practice.

>.?.= Contractor sha!! be res$onsib!e to see that a!! sedimentation, erosioncontro!, and si!tation within or adacent to the +ite caused by +ubcontractors is conductedin accordance with a$$!icab!e 5aw. 4n the eent Contractor fai!s to $reent such

sedimentation, erosion or si!tation from occurring in io!ation of a$$!icab!e 5aw, Ownersha!! hae the right, after notifying Contractor and $roiding it an o$$ortunity to cure ofnot !ess than three (=) #usiness &ays, to correct such $o!!ution or si!tation. A!! e;$ensesincurred by the Owner in the course of such correction sha!! be credited against $aymentsowed to Contractor.

4.> Compliance with %aws 4n carrying out its duties hereunder, Contractor sha!! com$!ywith a!! a$$!icab!e 5aws, inc!uding without !imitation, a!! 5aws re!ating to hea!th, safetyor the $rotection of the enironment. Owner sha!! hae no res$onsibi!ity for any costs ofenironmenta! com$!iance or remediation to the e;tent caused by the neg!igent acts andomissions or intentiona! or wi!!fu! misconduct of Contractor or any of Contractor


9/59

that Contractor and Owner satisfy any safety re-uirements of the insurers for the Proect.Contractor sha!! $roide to Owner its $ro$osed +afety P!an no !ater than >? days $rior tothe start of construction, but in any case no !ater than "#ate$ . The Parties sha!! usetheir good faith efforts to fina!i'e the +afety P!an no !ater than 6? days $rior to the start ofconstruction.

4.A /ecurity Plan. Contractor sha!! estab!ish a$$ro$riate security measures to maintainthe security of the +ite and $rotect the 3or* in $rogress (the +ecurity P!an). The+ecurity P!an sha!! com$!y with a!! re-uirements of the insurers for the Proect, sha!!address the reasonab!e concerns of the Jniersity and sha!!, at a minimum re-uire thatContractor sha!! cause to be erected (as re-uired by the nature and actiities of thesurrounding areas) tem$orary chain !in* fencing, and tem$orary security !ighting tosecure the +ite and 5ay &own Areas. Contractor sha!! $roide to Owner its $ro$osed+ecurity P!an no !ater than =I days fo!!owing the date of this Agreement. The Partiessha!! use their good faith efforts to fina!i'e the +ecurity P!an no !ater than @I daysfo!!owing the date of this Agreement.

4.*B Construction and /torage Confined to Permitted :reas. Contractor and the+ubcontractors and su$$!iers sha!! confine construction actiities and storage to the +ite,to the 5ay &own Areas $roided by Owner as more $articu!ar!y de$icted on the diagramattached hereto as +chedu!e G (the 5ay &own Areas), to the area designated by Ownerfor soi! dis$osa! in the round 5ease (the +oi! &is$osa! Area), to tem$orary and$ermanent easements that are reasonab!y necessary for the construction, o$eration,maintenance and re$air of the Proect and su$$ort faci!ities for the Proect, that hae been$roided or are in the future $roided by Owner (the Easement Areas) and to otherareas that may hereafter be $roided by Owner or other $ersons for such $ur$oses.

4.** Construction (ffice5 )ecords. Contractor sha!! maintain a tem$orary constructionoffice at the +ite during the course of construction of the aci!ity. Contractor sha!!maintain at such office a co$y of the +$ecifications, together with construction7re!ateddrawings that are dee!o$ed during the course of the Proect. Contractor agrees to$roide s$ace for the +afety &irector in the tem$orary construction office. Contractoragrees to remoe the tem$orary construction office from the +ite within si; months afterthe Commercia! O$eration &ate. Contractor sha!! further maintain an office off the +ite,which during the Term of this Agreement and the 8> months fo!!owing the Commercia!O$eration &ate sha!! sere as a re$ository for a!! documents re!ating to the Proect.Contractor sha!! $roide Owner fu!! access to such records during regu!ar business hoursin accordance with the $rocedures set forth in +ection ?.>.>.

4.*+ o %iens. Contractor sha!! be res$onsib!e to see that a!! e-ui$ment and materia!sincor$orated into the 3or* that are $urchased by Contractor or by any +ubcontractor tothe Proect sha!! not be subect to any chatte! mortgage, conditiona! sa!es contract, orsecurity agreement under which an interest or !ien is retainedD $roided, howeer, thatsuch e-ui$ment and materia!s may be subect to the security interest of the endor, tosecure the $ayment of the $urchase $rice of the affected e-ui$ment and materia!s, so !ongas such security interest is terminab!e u$on $ayment in fu!! and Contractor causes good


10/59


11/59

4.*@ (ther :uthori&ations. E;ce$t for the oernmenta! Authori'ations, Contractor sha!!be re-uired to obtain a!! other Authori'ations De.g., street o$ening $ermits, $!umbing$ermits, etc.) re-uired for the $erformance of the 3or*.

4.*A Confidentiality. Contractor sha!! ma*e aai!ab!e to Owner any record $roduced or

co!!ected under this Agreement. Owner agrees to treat as confidentia! materia!s thatContractor reasonab!y identified, and c!ear!y designated, as confidentia!. Owner agreesthat if it sha!! receies an order (in whateer form) com$e!!ing it by 5aw to disc!ose anysuch confidentia! record $roduced or co!!ected under this Agreement, it sha!! (to thee;tent $ermitted by 5aw) afford Contractor, and any +ubcontractors who were the sourceof the re-uested record, notice of such re-uest to afford Contractor or such others ano$$ortunity to contest the order.

4.+B Insurance. Contractor sha!! obtain and maintain insurance as set forth in+chedu!e 44.

4.+* Contractor uarantee. On the Effectie &ate, Contractor sha!! obtain and de!ier aguarantee from "ame of parent firm or other uarantor$ . (Parent uarantee) of$erformance for the ob!igations of Contractor, in the form of +chedu!e B. Theob!igations of Owner $ursuant to Artic!e ? hereunder are e;$ress!y conditioned u$on therecei$t of such Parent uarantee.

A"T4C5E ? 7 O32E"< "4/T+ A2& "E+PO2+4#454T4E+

Proide ade-uate tem$orary construction easements and $ermanenteasements for the aci!ity and any necessary su$$ort faci!ities for the aci!ity.

?.8.? At a!! times $rom$t!y res$ond, inc!uding ma*ing a$$ro$riate re$resentatiesaai!ab!e with decision7ma*ing authority, to any reasonab!e re-uests by any of the Partiesto this Agreement for meetings, for reiew and comments regarding re!eant documents$roided to them for reiew and comment.


12/59

?.8.@ At a!! times, use commercia!!y reasonab!e efforts to $roceed in a manner thatsu$$orts the Proect +chedu!e.

?.8. Prom$t!y ta*e a!! actions reasonab!y re-uested by Contractor to assistContractor in obtaining any Authori'ations for the aci!ity.

?.8. 2ot unreasonab!y withho!d their su$$ort from other actions reasonab!y

re-uested by Contractor to $romote the time!y com$!etion of the aci!ity or to $romotethe com$!etion of the aci!ity within the Proect budget.

and Artic!e 6>, if Contractor or Owner is denied a re-uiredAuthori'ation, or any such Authori'ation is obtained but contains restrictions,-ua!ifications or conditions that wou!d hae a materia! aderse im$act on the benefits orob!igations of the Parties under this Agreement, the Parties agree to use commercia!!yreasonab!e efforts, within =I days of the denia! of the re-uired Authori'ation or issuanceof the undu!y restrictie Authori'ation, to reform this Agreement, or to ta*e othermutua!!y agreeab!e actions (inc!uding, for e;am$!e and without !imitation, one Party

indemnifying or ma*ing who!e the other Party), that $roide each Party with economic orother benefits that are substantia!!y e-uia!ent to those set forth in this Agreement. 4f theParties are unab!e to so reform this Agreement or agree u$on other mutua!!y acce$tab!earrangements, +ection 6=.? (orce 1aeureD ai!ure of Authori'ations) sha!! a$$!y.

.6 inancing. Owner wi!! ta*e a!! actions necessary to obtain the financing itneeds to enab!e it to satisfy its $ayment ob!igations under this Agreement.

?.>.8 4ns$ection of Contractor


13/59

security of the +ite and to com$!y with any a$$!icab!e re-uirements of Proect insurers.2otwithstanding any reiew or ins$ection by the +tate of the 3or*, Contractor sha!! notbe re!ieed of its res$onsibi!ity for the design, construction and $erformance of theProect as e;$ress!y set forth in this Agreement so!e!y by irtue of the +tate.!D (c) anyincrease or decrease in the Cost of the 3or* resu!ting from any Change Order made


14/59

$ursuant to +ection .>, .?, or ., which sha!! be a!!ocated as set forth in such +ectionsDand (d) any increase in the Cost of the 3or* resu!ting from the Owner


15/59

of the 3or*, then Owner sha!! bear the entire incrementa! Cost of the 3or* (inc!udingcosts of de!ays and rewor*) resu!ting from such Addendum or Change Order.

@.< :ddenda and Change (rders )e!uired by :cts of overnmental :uthorities. 4f anyaction of any oernmenta! Authority re-uires an Addendum or a Change Order that

increases or decreases the Cost of the 3or* the Owner sha!! be res$onsib!e for anyincrementa! Cost of the 3or*.

@.> :ddenda and Change (rders )e!uested by Contractor. 4f Contractor re-uests anAddendum or a Change Order that is a$$roed by the Owner, then Owner and Contractorsha!! share e-ua!!y any increase or decrease in the Cost of the 3or* resu!ting from suchAddendum or Change Order.

@.? :ddenda and Change (rders )esulting from Errors or (missions of Contractor.

Owner sha!! not be res$onsib!e for any increased Cost of the 3or* resu!ting fromAddenda and Change Orders that are necessary because of errors of Contractor andFor its

+ubcontractors in coordinating the design, schedu!ing or construction of the aci!ity.

@.@ Gar1up on :ddenda and Change (rders. On any Addenda and Change Orders under+ections .>, and .?, Contractor and its +ubcontractors sha!! be entit!ed to a mar*u$ notto e;ceed ten $ercent (6IL) in the aggregate of the Cost of the 3or* coered by theAddendum or Change Order.

@.A Trac1ing of Cost Impact of :ddenda and Change (rders. Contractor sha!! instituteand maintain a !edger ty$e system to trac* the im$act of a!! increases and decreases to theOwner< A!!ocated +hares of the Cost of the 3or* resu!ting from any Addenda or ChangeOrders a$$roed by Contractor and Owner. Contractor sha!! month!y, and morefre-uent!y u$on re-uest, re$ort to the Owner the cumu!atie im$act of such Addenda andChange Orders u$on their res$ectie A!!ocated +hares of the Cost of the 3or*. 4fa$$!icab!e, the Parties sha!! modify the Proect +chedu!e and Payment 1i!estones toref!ect the im$act of Addenda and Change Orders.

:)TIC%E A - P:HGET 2() 0()


16/59

A.* Payment Gilestones5 Payment /chedule.

H.6.6 Progress "e$ort and 4noice.H.6.6.6 On or about the fifth #usiness &ay of each ca!endar month, Contractor

sha!! submit to Owner (i) its inoice, and (ii) a $rogress re$ort coering the $reious

ca!endar month (the Payment Period) containing at a minimum the fo!!owinginformation (Progress "e$ort)9 (6) A descri$tion of the 3or* $erformed during thePayment Period and a!! Payment 1i!estones achieedD (8) A descri$tion of the 3or* notyet $erformed, if any, necessary to meet the Proect +chedu!e for such Payment PeriodD(=) A descri$tion of the 3or* and the re!ated Payment 1i!estones antici$ated to be$erformed or achieed during the ne;t monthD (>) A statement of the amount dueContractor for 3or* for which $ayment was withhe!d from an ear!ier $aymentD (?) Astatement of a!! sums $reious!y $aid to ContractorD (@) Partia! !ien waiers fromContractor coering a!! the 3or* through the immediate!y $receding Payment PeriodD ()An u$dated Proect +chedu!e showing $rogress to date, any fai!ures to meet the Proect+chedu!e, the current schedu!e of actiities and a forecast of actiities remaining to be

$erformedD () 4nformation regarding unusua! weather conditions or orce 1aeureeents encountered during the Payment Period that hae affected the 3or*D (H) Adiscussion of any $rob!ems encountered during the $eriod and the remedies effected or$!annedD (6I) #u!* -uantities insta!!ation cures showing $!anned ersus com$!eted-uantities (e.g., concrete, , $i$ing, conduit and wire)D (66) Any interim $ayment byContractor to the +ubcontractors that ob!igates Owner to $ay interest to Contractor as $artof the inoiced 1i!estone Payment, together with the amount of interest that is $ayab!eD(68) Any other information reasonab!y re-uested in writing by either OwnerD (6=) Ga!ueof Change Orders and Addendums added to the Payment 1i!estone +chedu!eD (6>)4temi'ation and a!!ocation of any E;c!uded 1P CostsD and (6?) 4f re-uested by Owner9a) the dates of any Payment 1i!estones for 1aor E-ui$ment +u$$!ier contract $aymentscoming due before the ne;t month!y Payment &ue &ateD and b) Contractor


17/59

for withho!ding $ayment. 4f the P1FC1 conc!udes the withho!ding is ustified, thenContractor sha!! not be entit!ed to be $aid the withhe!d amount un!ess and unti! itaddresses any reasons for withho!ding that are confirmed by the P1FC1. 4f the P1FC1conc!udes that the withhe!d $ayment was wrong!y withhe!d, then the withho!ding Ownersha!! immediate!y $ay to Contractor, the wrong!y withhe!d amount, together with interest

at the 5ate Payment "ate on the withhe!d Payment 1i!estone $ayment(s), from thePayment &ue &ate unti! the wrong!y withhe!d amount is $aid in fu!!.H.6.6.= 4n the eent Contractor owes Owner any amounts under this Agreement

and such amounts remain un$aid =I &ays after 2otice thereof, Owner may offset suchamounts from any $ayment hereunder.

H.6.6.> Contractor sha!! not cease or reduce the rate of its $erformance under thisAgreement on account of any withho!ding under this +ection H.6.

H.6.8 Payment. Other than amounts $ro$er!y withhe!d $ursuant to +ections H.6and H.8, and retainage as described in +ection H.=, Owner sha!! $ay the a$$!icab!e$ayment for each Payment 1i!estone within =I days after Contractor inoices thea$$!icab!e Payment 1i!estone (the Payment &ue &ate).

H.6.= 4nterest. Owner wi!! $ay actua! reasonab!e interest cost incurred byContractor to adance funds for $ayments to +ubcontractors.

A.+ )etainage. A!! amounts $aid by Owner to Contractor $ursuant to the Payment1i!estone schedu!e for 2on71aor E-ui$ment and +erices $rior to Commercia!O$eration sha!! be subect to retainage of ten $ercent (6IL) unti! the aggregate retainagereaches "Cap amount$ , whereu$on the +tate sha!! not withho!d any further retainage.J$on 1echanica! Com$!etion, one7ha!f of the retainage withhe!d, !ess the Punch 5ist/o!dbac* Amount, sha!! be re!eased to Contractor.

A. 2inal Payment. J$on (a) ina! Com$!etion, (b) the $roision by Contractor of !ienwaiers for a!! remaining !iens on the Proect to Owner and (c) acce$tance of the 3or* byOwner in accordance with +ection 6I.@, Owner sha!! $ay the ina! Payment.

:)TIC%E *B - C(GGECEGET :# PE)2()G:CE (2 0()

*B.* Commencement5 /chedule. Contractor sha!! commence $erformance of the 3or* atthe ear!iest reasonab!e time (the Construction Commencement &ate) but no !ater than=I days fo!!owing the !ast to occur of the fo!!owing9 (a) issuance of any Authori'ationsre-uired for the aci!ityD (b) com$!etion of the fina! foundation drawings for the ProectD(c) aai!abi!ity of suitab!e weather conditions for the commencement of constructionD and

(d) Owner haing in $!ace a!! insurance $o!icies re-uired of them under this Agreement.

*B.+ Gechanical Completion. 1echanica! Com$!etion sha!! occur when, e;ce$t forminor items of the 3or* that wou!d not affect the $erformance or o$eration of theaci!ity such as $ainting, !andsca$ing and so forth (a) a!! materia!s and e-ui$ment for theaci!ity hae been insta!!ed substantia!!y in accordance with the +$ecificationsD (b) a!!systems re-uired to be


18/59

insta!!ed by Contractor hae been insta!!ed and tested (e;c!uding Acce$tance Testing)D (c)a!! the e-ui$ment and systems can be o$erated in a safe and $rudent manner and haebeen insta!!ed in a manner that does not oid any +ubcontractor e-ui$ment or systemwarrantiesD (d) the aci!ity is ready to commence start7u$, Acce$tance Testing, ando$erationsD (e) a Punch 5ist of the uncom$!eted items is estab!ished by Contractor and

mutua!!y agreed u$on by the Parties,provided that if Contractor and Owner disagree as towhether a $articu!ar item sha!! a$$ear on the Punch 5ist, the 4nde$endent Engineer sha!!$rom$t!y decide the dis$uteD (g) a!! 3or*, other than Punch 5ist items and Acce$tanceTesting and any other 3or* se-uenced after 1echanica! Com$!etion, has beencom$!etedD and (h) the 4nde$endent Engineer certifies each of the foregoing in writing tothe Owner.

*B. Commercial (peration. Commercia! O$eration sha!! be deemed to hae occurredas of the first $oint in time after (i) 1echanica! Com$!etion of the aci!ity has occurred,as determined by the 4nde$endent EngineerD (ii) com$!etion of Acce$tance Testing$ursuant to +ection 66.8, or a!ternatie!y satisfaction of Contractor


19/59


20/59

66.8.>.8 4f the Testing Engineer determines that the Acce$tance Test wassuccessfu!!y com$!eted, Contractor sha!! ensure that the Testing Engineer notifies Ownerand Engineer thereof $rom$t!y fo!!owing determination to that effect, inc!uding $roidingthem a co$y of the written test re$ort.

66.8.? Contractor to Prom$t!y Commence and Com$!ete Acce$tance Testing.

Contractor sha!! $rom$t!y commence and com$!ete Acce$tance Testing fo!!owing1echanica! Com$!etion.

**. :cceptance Test Capacity uarantee. At the end of Acce$tance Testing Period under+ection 66.8.=, the aci!ity sha!! hae demonstrated the ca$abi!ity to $roduce "/pecification of performance standard for production of electricity$, based u$on theAcce$tance Testing resu!ts. Contractor hereby guarantees that the aci!ity sha!! $erformat not !ess than HL of the Promised Ca$acity by the end of the Acce$tance TestingPeriod (the Acce$tance Test Ca$acity uarantee). Contractor and the Testing Engineersha!! be entit!ed to conduct and erify satisfaction of the Acce$tance Tests in stages andin such order as may be a$$ro$riate gien the aai!ab!e testing conditions. 4n the eent

that the aci!ity fai!s to meet the Acce$tance Test Ca$acity uarantee, the fo!!owing sha!!a$$!y966.=.6 4f either the actua! tested $erformance is !ess than HL but greater than

HIL of the Promised Ca$acity (the 1inimum "e-uired Ca$acity), Contractor may, atits so!e o$tion, e!ect to either (i) ma*e (or cause to be made) the modifications,im$roements, redesign, re$airs or reconstruction ("emedia! 1easures) necessary tocause the aci!ity to meet the Acce$tance Test Ca$acity uarantee as eidenced by re$eatAcce$tance TestsD or (ii) $ay !i-uidated damages to Owner as fo!!ows9 or each I.6Lbe!ow HL of the Promised Ca$acity, the !i-uidated damages sha!! be "%i!uidateddamages amount$ . Contractor


21/59

**.< Compliance with /tandards. 4n the eent the aci!ity contains any design orconstruction defects (&efects) that cause it to fai! to meet any design, construction or1echanica! Com$!etion standard in the +$ecifications or the Agreement, then Contractorsha!!, at no e;$ense to Owner (e;ce$t in the case of omitted e-ui$ment and materia!s, as

$roided in this Artic!e 66), ma*e (or cause to be made) the "emedia! 1easuresnecessary to remedy the &efects. 4n the eent the "emedia! 1easures inc!ude su$$!yinge-ui$ment and materia!s that were necessary to the aci!ity, but omitted from itsconstruction, Owner sha!! $ay for the costs of such omitted e-ui$ment and materia!s as$art of the Cost of the 3or* if such "emedia! 1easure is im$!emented to address &efectsdiscoered before the aci!ity achiees 1echanica! Com$!etion. 4f the "emedia!1easure is im$!emented to address &efects discoered after the aci!ity achiees1echanica! Com$!etion, Owner sha!! not be ob!igated to $ay any $ortion of the cost ofthe omitted e-ui$ment and materia!s.

**.> ContractorFs 0arranties. Contractor warrants to Owner as fo!!ows9

[email protected] Contractor sha!! $erform the 3or*, inc!uding its design and engineeringserices hereunder, and wi!! $rocure a!! materia!s hereunder using its best s*i!! andattention, in accordance with ood Jti!ity Practice associated with engineering and$rocurement of faci!ities such as the aci!ity.

[email protected] Contractor sha!! $erform its construction serices hereunder in a good andwor*man!i*e manner and otherwise in accordance with ood Jti!ity Practice associatedwith constructing faci!ities such as the aci!ity. The aci!ity wi!!, at a!! times through theCommercia! O$eration &ate, com$!y with a!! 5aws. Contractor sha!! hae no ob!igationfor breach of warranty under this +ection 66.@ to the e;tent any deficiencies are the resu!tof orce 1aeure, norma! wear and tear, misuse or neg!igence by Owner or someoneother than Contractor acting on Owner


22/59

neg!igent acts or omissions (co!!ectie!y, the +ubcontractor Protections). Contractorsha!! enforce, at its so!e e;$ense, a!! warranties contained within the +ubcontractorProtections for the +ubcontractor warranty $eriods $roided for the s$ecific e-ui$ment towhich such warranties $ertain. The a$$!icab!e warranty $eriods that are *nown as of thedate of this Agreement are set forth in +chedu!e 4B. J$on re-uest from any Party,

Contractor sha!!, fo!!owing the negotiation of a!! +ubcontractor contracts, u$date+chedu!e 4B to ref!ect the fina! negotiated warranty $eriods. Contractor agrees to assignto Owner on and as of the Commercia! O$eration &ate any warranties, $erformanceguarantees and re!ated !i-uidated damages $roisions contained in any contracts betweenContractor and +ubcontractors to the e;tent such assignments are $ermitted under theterms thereof.

**.A Contractor Enforcement of /ubcontractor Protections. Contractor agrees to act onOwner< beha!f, at no additiona! cost to Owner, to enforce any +ubcontractor Protectionswith res$ect to 3or*D $roided, howeer, that Contractor may use its reasonab!ediscretion on how best to a$$roach the reso!ution of any $articu!ar $rob!em, and $roided

further that such enforcement ob!igation sha!! on!y !ast for the duration of the+ubcontractor Protection in -uestion. 4n the eent that !itigation is necessary to enforceany +ubcontractor Protection, Contractor sha!! $ursue such !itigation at its own e;$ense.

**.*B %imitation of %iability

66.6I.6 .2otwithstanding any $roision in this Agreement to the contrary, in noeent sha!! the tota! !iabi!ity of Contractor or uarantor to Owner for !i-uidated damagesand "emedia! 1easures under +ection 66.= and 66.> e;ceed in the aggregate "Capamount$ , $roided that this !imitation sha!! not a$$!y to direct damages fo!!owing anContractor Eent of &efau!t $ursuant to Artic!e 6=, or indemnification ob!igations$ursuant to +ection 66.66, and this !imitation in no way affects Contractor


23/59

66.6I.8 APART FROM THE GUARANTEES AND OTHER REMEDIESPROVIDED IN THIS AGREEMENT, CONTRACTOR HEREBY DISCLAIMS

ANY OTHER WARRANTIES, OR PERFORMANCE GUARANTEES,

INCLUDING WITHOUT LIMITATION, WARRANTIES OF

MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

66.6I.= Owner sha!! not be !iab!e for any !ost $rofits or indirect, s$ecia!, mu!ti$!e,or $unitie damages.

**.** Indemnification. Owner sha!! assume and retain a!! !iabi!ity, inc!uding c!aims,demands, !osses, costs, damages and e;$enses of eery *ind and descri$tion, or damagesto $ersons or $ro$erty arising out of or in connection with or occurring during the courseof this Agreement, where such !iabi!ity is $ro;imate!y caused by the acts or omissions ofany of the officers, em$!oyees or agents of Owner whi!e acting within the sco$e of theirem$!oyment. Contractor sha!! indemnify Owner against any and a!! !oss or damages thatOwner may incur as a resu!t of any c!aim of Persons other than Owner, Contractor, ortheir res$ectie em$!oyees and agents, to the e;tent same (a) arise out a breach by

Contractor of its ob!igations under this Agreement, or (b) are caused by the neg!igence orintentiona! or wi!!fu! misconduct of Contractor, the +ubcontractors or their agents orem$!oyees. Contractor sha!! indemnify and ho!d harm!ess Owner from a!! !iabi!ities,damages, costs or e;$enses incurred by Owner by reason of any !ien fi!ed against theaci!ity by any +ubcontractor of Contractor in connection with the $erformance of the3or*. Any Party entit!ed to indemnification or other $rotection under this +ection 66.66sha!! *ee$ the benefited $arty a$$rised of the status of a!! c!aims with res$ect to which itis entit!ed to such indemnification or $rotection, and sha!! not sett!e any such c!aimwithout the consent of the benefited $arty, such consent not to be unreasonab!y withhe!dor undu!y de!ayed.

:)TIC%E *+ - #I/P8TE )E/(%8TI(

*+.* In eneral. The Parties sha!! attem$t to sett!e eery dis$ute arising out of or inconnection with this Agreement (&is$ute), by fo!!owing the dis$ute reso!ution $rocessset forth be!ow in this Artic!e 68, to the e;tent $ermitted by 5aw.

68.6.6 1utua! &iscussions. 4f any dis$ute or difference of any *ind whatsoeer(a &is$ute) arises between the Parties in connection with, or arising out of, thisAgreement, the Parties within =I days sha!! attem$t to sett!e such &is$ute in the firstinstance by mutua! discussions between Owner and Contractor.

68.6.8 urther Procedures. 4f the &is$ute cannot be sett!ed within =I days by

mutua! discussions, then the &is$ute sha!! be fina!!y sett!ed under the $roisions of this+ection 68.6.8 or +ection 68.6.=. 4f the Parties fai! to reso!e any dis$ute throughdiscussions within [umber] #usiness &ays, either Party sha!! hae the right to $roidewritten notice of the &is$ute to the $resident or chief e;ecutie officer (+enior1anagement) of the other Party. J$on a time!y referra!, the +enior 1anagement of theParties sha!! consider the &is$ute, reiew such re!eant information as they maydetermine and issue their decision (which decision sha!! be confirmed in writing) within ?#usiness &ays after receiing the referra!. 4f the +enior 1anagement of the Parties


24/59

cannot reso!e the issue within the fie #usiness &ay $eriod, then the Parties sha!! haethe rights set forth be!ow in +ection 68.6.=.

68.6.= Arbitration. +ubect as hereinafter $roided, any &is$ute arising out of. orin connection with, this Agreement and not sett!ed by +ection 68.6.6 or +ection 68.6.8 ofthis Agreement may (regard!ess of the nature of the &is$ute) be submitted by either Party

to arbitration and fina!!y sett!ed in accordance with J2C4T"A5 "u!es of 4nternationa!Arbitration.

*+.+ Continued Performance. &uring the conduct of dis$ute reso!ution $rocedures$ursuant to this Artic!e 68, (a) the Parties sha!! continue to $erform their res$ectieob!igations under this Agreement, and (b) no Party sha!! e;ercise any other remedieshereunder arising by irtue of the matters in dis$ute.

:)TIC%E * - #E2:8%T/5 )EGE#IE/5 TE)G5 TE)GI:TI(

*.* Contractor #efault. The occurrence of any of the eents set forth be!ow sha!!constitute a Contractor Eent of &efau!t under this Agreement9

6=.6.6 #an*ru$tcy. Contractor becomes inso!ent, or become the subect of anyban*ru$tcy, inso!ency or simi!ar $roceeding, which, in the case of any such $roceedingthat a third $arty brings against either of them, has not been terminated, stayed, ordismissed within @I #usiness &ays after it was commenced, un!ess the affected Party$roides eidence to Owner of that Party.8I as set forth in +chedu!e 44 heretoD or

6=.6.= ai!ure to Perform. Contractor sha!! hae defau!ted in its $erformance

under any other materia! $roision of this Agreement and sha!! hae fai!ed to cure suchdefau!t within =I days fo!!owing de!iery to Contractor of a 2otice from Owner to curesuch defau!t, or if a cure cannot be effected within such =I day $eriod, such $eriod sha!!e;tend for a reasonab!e $eriod of time, but not to e;ceed a tota! of @I days, so !ong asContractor is $roceeding di!igent!y to cure such defau!t throughout such $eriodD or

6=.6.> "e$resentation a!se. Any materia! re$resentation made by Contractorherein sha!! hae been fa!se or mis!eading in any materia! res$ect when madeD or

6=.6.? ai!ure to Achiee 1echanica! Com$!etion. 4f 1echanica! Com$!etion isnot achieed by the &e!ay &efau!t &ateD or

6=.6.@ ai!ure to Obtain Authori'ation. The Proect cannot $roceed to com$!etionas the u!timate resu!t of a refusa! of oernmenta! Authority to a$$roe the Proect or

any other Authori'ation, which refusa! is due so!e!y to the neg!igence or wi!!fu!misconduct of Contractor.

*.+ (wnerFs #efault )emedies :gainst Contractor. 4f a Contractor Eent of &efau!t sha!!hae occurred and be continuing, either Owner sha!! hae the right to terminate thisAgreement by notice to Contractor. 4n the eent of such termination9

6=.8.6 4f re-uested by an Owner, Contractor sha!! withdraw from the +ite, sha!!assign to the Owner (without future recourse to Contractor) such of Contractor


25/59

subcontracts as Owner may re-uest, and sha!! remoe such materia!s, e-ui$ment, too!sand instruments used and any debris or waste materia!s generated by Contractor in the$erformance of the 3or* as Owner may direct, and Contractor sha!! $rom$t!y de!ier toOwner a!! designs, drawings, and other documents re!ated to the Proect. 4n the eent ofsuch termination, Contractor sha!! de!ier to Owner a!! materia!s and data for which tit!e

has $assed to Owner. To the e;tent any s$ecific item of the 3or* is $artia!!y com$!ete atthe time of termination, at the o$tion of either Owner, Contractor sha!! com$!ete such$artia!!y com$!eted 3or*. 4n such eent, Owner sha!! $ay Contractor the amount thatOwner wou!d hae otherwise $aid to Contractor for such item of 3or* had suchtermination not occurred, !ess any damages $ayab!e hereunder.

6=.8.8 Owner, without incurring any !iabi!ity to Contractor, sha!! hae the right tohae the aci!ity brought to ina! Com$!etion. 4n such eent, Contractor sha!! be !iab!e toOwner for the reasonab!y incurred costs to Owner of achieing 1echanica! Com$!etion,inc!uding costs of acce!erated or e;$edited construction actiities actua!!y $erformed inan attem$t to achiee 1echanica! Com$!etion (by the uaranteed 1echanica!Com$!etion &ate if not yet $ast, or otherwise as e;$editious!y as $racticab!e), andFor to

mitigate any de!ay by Contractor, and actua! costs for administering any subcontract andfor !ega! fees associated with the termination. 3ith res$ect to the costs of $erforming anyof the 3or* that fo!!ows after 1echanica! Com$!etion, Contractor


26/59

dismissed within @I #usiness &ays after it was commenced, un!ess the affected Party$roides eidence to Contractor of that Party


27/59

whether and to what e;tent the condition wi!! de!ay the uaranteed 1echanica!Com$!etion &ate, the &e!ay &efau!t &ate, the Commercia! O$eration &ate or ina!Com$!etion &ate, (iii) state the date and time the orce 1aeure condition commencedDand (iii) state whether Contractor recommends that Owner initiate a Change Order$ursuant to Artic!e .

6=.?.= Effect of orce 1aeure. 2o fai!ure or de!ay in $erformance under thisAgreement sha!! be deemed to be a breach hereof to the e;tent such fai!ure or de!ay isoccasioned by or due to orce 1aeure. 3ith res$ect to de!ay in $erformance, a orce1aeure condition sha!! e;cuse such de!ay in $erformance on a day for day basis for a$eriod of time e-ua! to the duration of the orce 1aeure condition or the $eriod neededto remedy its effects, to the e;tent that such orce 1aeure condition causes a de!ay in the3or*.

6=.?.> Termination. 4n the eent that (a) Contractor or Owner are denied anyre-uired Authori'ations, or such Authori'ations are obtained, but are withdrawn, orcontain restrictions, -ua!ifications, or conditions that wou!d hae a materia! aderse effecton the benefits or ob!igations of the Parties, and the Parties are unab!e to reform this

Agreement or agree u$on other mutua!!y acce$tab!e arrangements, or (b) if a orce1aeure eent continues for more than 6I days after notice of the eent of orce1aeure is gien under +ection 6=.?.8, or (c) the Proect cannot $roceed to com$!etion asthe u!timate resu!t of a refusa! of a oernmenta! Authority to a$$roe the Proect or to$roide any other Authori'ation, which refusa! or fai!ure is not due so!e!y to theneg!igence or wi!!fu! misconduct of the terminating Party, then such Party may terminatethis Agreement, in its so!e discretion, within @I days after the conditions in (a), (b) or (c),by giing at !east 6I #usiness &ays $rior written notice to the other Parties.

*.> )ight to Termination .2o Party sha!! hae the right to terminate this Agreement forcause or otherwise e;ce$t as described in +ection 6=.8, +ection 6=.>, +ection 6=.?,+ection 6>.8 and +ection [email protected].

*.? Effect of Termination 8nder /ections *.4, *..+*. 4n the eent that thisAgreement is terminated by either $arty $ursuant to +ections 6=.> 6=.?, 6>.8 or [email protected],Owner sha!! $ay to Contractor an amount e-ua! to the sum of (6) the Cost of the 3or*incurred by Contractor in connection with the 3or* and the Proect as of the date oftermination, $!us (8) to the e;tent not a!ready ref!ected in (6), any termination chargesincurred by Contractor that are im$osed by +ubcontractors as a resu!t of the Terminationand any other costs reasonab!y incurred by Contractor so!e!y as a resu!t of the terminationto the e;tent that this sum is not reimbursed $ursuant to insurance $o!icies maintained byContractor $ursuant to +chedu!e 44 (it being s$ecifica!!y understood that Owner sha!! beres$onsib!e for the $ayment of a!! deductib!e amounts under any said insurance $o!iciesto the e;tent $roided in +chedu!e 44). J$on such $ayment by Owner, Owner sha!! haee;c!usie Ownershi$ of the aci!ity and the 3or* and Contractor sha!! hae no furtherob!igations with res$ect thereto.

*.@ Completion5 /urvival. Jn!ess ear!ier terminated $ursuant to the terms of this Artic!e6=, this Agreement sha!! be deemed to be com$!eted when both of the fo!!owing haeta*en $!ace9 (a) the ina! Com$!etion &ate has occurred, and (b) Owner hae $aid the


28/59

Cost of the 3or* in fu!! $ursuant to Artic!e H. 2otwithstanding the foregoing,Contractor.= sha!! continue unti! the date that is yearsafter the ina! Com$!etion &ate and Contractor


29/59

* Ca$tions. Ca$tions or headings to Artic!es, +ections or $aragra$hs of thisAgreement are inserted for conenience of reference on!y, and sha!! not affect theinter$retation or construction hereof.

6?.8.? Additiona! Princi$!es of Construction. The Agreement sha!! be inter$reted

in a manner as to be consistent with the fo!!owing $rinci$!es96?.8.?.6 Jse of ood Jti!ity Practice. 4t is the intent of the Agreement to re-uirethe a$$!ication of ood Jti!ity Practice to the 3or* where detai!s of such 3or* are notinc!uded, are incom$!ete, are not s$ecified, or are not c!ear!y defined in the+$ecifications.

6?.8.?.8 4ntegration of Proect &ocuments. 4t is the intent of the Parties that the+$ecifications for the aci!ity, this Agreement, and the +chedu!es hereto (the Proect&ocuments) are to be inter$reted as an integrated who!e. 3here wor* or ob!igations arereferenced in one of the Proect &ocuments but not in another, Contractor sha!!coordinate the design and insta!!ation of the 3or* as if it were shown on both to thee;tent re-uired to com$!y with the Acce$tance Tests and ood Jti!ity Practice.

* - GI/CE%%:E(8/

*>.* Third Party 'eneficiaries. E;ce$t with res$ect to the $roisions of the Agreement$ertaining to assignment, the Agreement is not intended to and sha!! not create rights of

any character whatsoeer in faor of any $erson other than the Parties to the Agreement.

*>.+ ood 2aith and 2air #ealing. 3heneer the Agreement grants to any Party theright to ta*e action, e;ercise discretion, or determine whether to a$$roe a $ro$osa! ofany other Party, the Party $ossessing the right sha!! act in good faith and sha!! dea! fair!ywith each other. 4n the eent of a &is$ute, the Parties sha!! be ob!igated to ma*e areasonab!e and di!igent effort to reso!e the &is$ute at the a$$ro$riate !ee! beforeino*ing the dis$ute reso!ution $rocedures in Artic!e 68. Each of the Parties further


30/59


31/59

4f to Contractor9Conta!to

A""e## An" Steet

C$t%, State, Co&nt% 'Po#tal Co"e(

Attent$on) Name

4f to Owner9O*ne

A""e## An" Steet

C$t%+, State+, Co&nt%+ 'Po#tal Co"e(

Attent$on) Name+

*>.@ Change of :ddress. Any Party may, by written notice to the other Parties gien inaccordance with the foregoing, change its address for notices.

*>.A /uccessors5 :ssignment. This Agreement sha!! be binding u$on the $arties and theirres$ectie successors and $ermitted assigns. 2o $arty sha!! ma*e any sa!e, assignment,mortgage, $!edge or other transfer of a!! or any $ortion of its rights or ob!igations underthis Agreement, whether o!untari!y or ino!untari!y, by o$eration of !aw or otherwise,without the $rior written consent of the other PartyD $roided, howeer, that9 (a) anyParty may ma*e a co!!atera! assignment of its interest in this Agreement to a inancingPartyD and (b) this +ection [email protected] sha!! not re-uire $rior written consent for any o!untarytransfer in connection with a change in Ownershi$, or the merger, restructuring orconso!idation of Contractor, so !ong as the Agreement is transferred to an affi!iate and theParent uarantee continues to guarantee $erformance of the Agreement, as so o!untari!ytransferred. Any successor to Contractor or Owner< res$ectie interests under thisAgreement sha!! assume in writing a!! res$onsibi!ities of Contractor or Owner, as the casemay be under this Agreement.

*>.*B Counterparts. This Agreement may be signed in counter$arts, each of which whenso e;ecuted and de!iered sha!! be an origina!, but a!! such counter$arts sha!! togetherconstitute the same instrument.

*>.** 2urther :ssurances. Each Party agrees to e;ecute and de!ier any such instrumentsand to $erform any such acts as may be necessary or reasonab!y re-uested by any otherParty in order to gie fu!! effect to the terms of this Agreement.

*>.*+ Interest. Past due $ayments hereunder not contested in good faith sha!! bearinterest from the due date unti! $aid at the 5ate Payment "ate.

*>.* )elationship to (ther :[email protected]=.6 The Parties recogni'e that this Agreement and other re!ated agreements

re!ating to the aci!ity entered into between Owner and Contractor and others (theCo!!atera! Agreements) constitute an integrated and com$rehensie set of agreementsthat are intended to faci!itate the construction and o$eration of the aci!ity to $roide


32/59

efficient, re!iab!e and economic !ong7term e!ectricity $roduction. To the e;tent $ermittedby 5aw, a!! of the Co!!atera! Agreements sha!! be read together to achiee theseobecties and the Parties agree to su$$ort a!! such documents, regard!ess of whether theyare a $arty to a $articu!ar Co!!atera! Agreement.

[email protected]=.8 2otwithstanding +ection [email protected]@.6, the Agreement and the Co!!atera!

Agreements are se$arate and inde$endent underta*ings by the Parties. Termination ofone of these agreements sha!! not affect or im$air the rights or ob!igation of the Partiesunder the Co!!atera! Agreements, e;ce$t as otherwise s$ecifica!!y $roided herein and inthe Co!!atera! Agreements.

*>.*4 o Partnership5 Third Party 'eneficiaries. The Parties hereby e;$ress!y disc!aimany intention to create a oint enture or $artnershi$ re!ation between the Parties. E;ce$tas e;$ress!y stated in this Agreement, there are no third $arty beneficiaries to thisAgreement.

*>.*< 2urther #ocuments and :ctions. Each Party sha!! $rom$t!y e;ecute and de!ier

such further documents and assurances for and ta*e such further actions reasonab!ere-uested by the other Parties as may be reasonab!y necessary to carry out the intent and$ur$ose of this Agreement.

*>.*> Time of the Essence5 Cooperation to Control Costs. The Parties recogni'e that timeis of the essence in designing and com$!eting construction of the aci!ity. The Partiesagree to use their good faith efforts to coo$erate with each other and, where a$$!icab!e,with +ubcontractors to *ee$ the Proect on schedu!e, to contro! Proect costs and torefrain from actions that drie u$ the Proect costs or inect de!ay into the Proect+chedu!e.

*>.*? /tate )ight to :pprove5 2ailure to Promptly )espond #eemed :pproval. 4n a!!instances in this Agreement where Owner has the right to $roide feedbac* or a$$roe ofthe actions of Contractor with res$ect to the construction $rocess, inc!uding without!imitation, the Owner.8 (+ubcontractors),Artic!e >.8.? (:AF:C &irector), and Artic!e >.8.@ (+afety &irector), Owner sha!! use itsbest efforts to $rom$t!y res$ond, with due regard to the time sensitiity of the $articu!arsituation. Jn!ess e;$ress!y $roided otherwise in this Agreement, in the eent the Ownerfai!s to res$ond in any such situation within 6I #usiness &ays of the de!iery of theinformation or notice that triggers the Owner.*@ Contingent (n Issuance of CPC and (ther :uthori&ations. The Partiesob!igations to continue to $roceed in accordance with this Agreement are contingent u$onthe issuance of the certificate of $ub!ic conenience and necessity (CPC2) and anyother re-uired Authori'ations for the aci!ity. 4f the Jti!ity "egu!ator has not issued theCPC2 for the Proect by "Insert #ate$, then Owner sha!! hae the right toterminate this Agreement by written notice to Contractor.


33/59

42 34T2E++ 3/E"EO, the Parties hae caused this Agreement to be e;ecuted andde!iered by their du!y authori'ed officers as of the date first set forth aboe.

CONTRACTOR

#y9 4ts9

OWNER

#y9 4ts9


34/59

Atta!e" S!e"&le#)

+chedu!e 4 77 &efinitions

+chedu!e 44 77 4nsurance

+chedu!e 444 77 Acce$tance Testing

+chedu!e 4G 77 Payment +chedu!e

+chedu!e G 77 5ay &own Areas

+chedu!e G4 77 1P Tem$!ate

+chedu!e G44 77 The 3or*

+chedu!e G444 77 A$$roed Construction +ubcontractors and 1aor E-ui$ment +u$$!iers

+chedu!e 4B 77 +ubcontractor 3arranties

+chedu!e B 77 orm of Parent uarantee

+chedu!e B4 77 oernmenta! Authori'ations to be Obtained for Proect


35/59


36/59

.Conta!to E3ent o- De-a&lt1sha!! hae the meaning assigned to it in +ection 6=.6.

.Co#t o- te Wo41sha!! mean the antici$ated actua! costs of construction, subect to theuaranteed 1a;imum Price, as defined in +ection .6, inc!uding the e;ce$tions andadditions $ermitted therein.

.CPCN1 sha!! hae the meaning assigned to it in the "ecita!s to this Agreement.

.Dama0e# Cap1sha!! hae the meaning set forth in +ection 66.6I.

.De-e!t#1, indiidua!!y a &efect, sha!! hae the meaning assigned to it in +ection 66.?.

.Dela% De-a&lt Date1sha!! mean "Insert #ate$, as such date may be e;tendedby any orce 1aeure condition, but not !ater than "Insert #ate$.

.D$#p&te1sha!! hae the meaning assigned to it in +ection 68.6.

.Ea#ement Aea#1sha!! hae the meaning assigned to it in +ection >.6I.

.E--e!t$3e Date1sha!! mean the date that this Agreement has been signed by Contractorand Owner.

.En0$nee1sha!! hae the meaning assigned to it in +ection >.8.8.

.E5&$pment In#t&!t$on Man&al1 sha!! mean the manua! or manua!s $roided byContractor to Owner $ursuant to +ection =.6.@, inc!uding o$eration re-uirements,guide!ines and manua!s estab!ished by the manufacturers of the maor e-ui$ment for the

aci!ity.

.E6!l&"e" GMP Co#t#1sha!! hae the meaning gien the term in +ection .8.

Fa!$l$t% sha!! mean the ")enewable energy technology$ faci!ity, as more $articu!ar!ydescribed in the "ecita!s to this Agreement.

.Fa!$l$t% Stat Up1sha!! mean the actiities fo!!owing com$!etion of construction of theaci!ity, but $rior to Acce$tance Testing, that are necessary to accom$!ish the initia! startu$ of the e-ui$ment within the aci!ity that generates e!ectricity, steam and chi!!ed water,inc!uding, without !imitation, the f!ushing of !ines, $ressure testing of $i$es, fi!!ing

e-ui$ment with oi!s and other f!uids, and the $roision of any e-ui$ment endor sericesre!ating thereto.

.F$nal Complet$on1sha!! hae the meaning assigned to it in +ection 6I.?.

.F$nal Complet$on Date1sha!! mean the date ina! Com$!etion occurs.

.F$nal Pa%ment1sha!! hae the meaning assigned to it in +ection H.=.


37/59


38/59

manufacturer8 J.+.C. Q H@I6 et se!., or any simi!arstate statute.

.In"epen"ent En0$nee1sha!! mean a -ua!ified inde$endent engineering firm mutua!!yagreeab!e to Contractor and the +tate, to be se!ected by them not !ater than thirty (=I)days $rior to the commencement of construction. The Parties sha!! em$!oy the4nde$endent Engineer, whose com$ensation sha!! be a $art of the Cost of the 3or*, toerify that 1echanica! Com$!etion has occurred and to reso!e any dis$utes among theParties as to the items that shou!d a$$ear on the Punch 5ist.

.La*1sha!! mean (i) any !aw, !egis!ation, statute, act, ru!e, ordinance, decree, treaty,regu!ation, order, udgment, or other simi!ar !ega! re-uirement, or (ii) any !ega!!y bindingannouncement, directie or $ub!ished $ractice or inter$retation thereof, enacted, issued or$romu!gated by any oernmenta! Authority.

.La% Do*n Aea#1sha!! hae the meaning assigned to it in +ection >.6I.

.Ma7o E5&$pment S&ppl$e#1sha!! hae the meaning assigned to it in +ection >.8.=.

.Me!an$!al Complet$on1sha!! hae the meaning set forth in +ection 6I.8.


39/59


40/59


41/59

.S&8!onta!to Pote!t$on#1sha!! hae the meaning assigned to it in +ection 66.

.S&8!onta!to Re!o3e$e#1sha!! hae the meaning assigned to it in +ection 66.6I.

.S&ppl$e#1sha!! mean a manufacturer, fabricator, su$$!ier, distributor, materia!man or

endor haing a direct contract with Contractor or with any +ubcontractor to furnishmateria!s or e-ui$ment to be incor$orated in the 3or* by Contractor or any+ubcontractor.

.Tem1 sha!! mean the duration of this Agreement, from the Effectie &ate unti! ina!Com$!etion.

.Te#t$n0 En0$nee1sha!! hae the meaning set forth in +ection 66.6.

.Ta--$! Contol Plan1sha!! hae the meaning set forth in +ection >..

.Un$n#&e" Fo!e Ma7e&e1sha!! mean any eent of orce 1aeure, or $ortion thereof,not coered by the insurance re-uired to be carried in connection with the Proect.

.Ut$l$t% Re0&lato1 sha!! mean any oernmenta! Authority that has s$ecificurisdiction oer the $roduction, sa!e, or $ricing of the $roision of e!ectric energy orre!ated serices.

.Waant% Pe$o"1sha!! mean, with res$ect to any com$onent, the a$$!icab!e !ength ofany warranties $roided by the re!ated +ubcontractor.

Wo4 sha!! mean a!! design, engineering, $rocurement, construction, erection,insta!!ation, training, start7u$ and testing actiities and serices necessary to achiee acom$!ete and o$erab!e aci!ity in accordance with the terms of this Agreement, toachiee 1echanica! Com$!etion, Commercia! O$eration, and ina! Acce$tance, and sha!!inc!ude a!! actiities and serices described in +chedu!e G44 and in +ection =.6.


42/59

S!e"&le II

In#&an!e

4nsurance &uring ConstructionThe Parties sha!! maintain insurance during construction as fo!!ows9

Owner sha!! use their best efforts to $rocure and estab!ish an Owner Contro!!ed 4nsuranceProgram (OC4P) to insure against the Proect construction ris*s norma!!y coered by thefo!!owing ty$es of insurance $o!icies9 (a) +ubcontractor


43/59

a!ue of the $ro$erty coered and sha!! be written on an A!! "is* basis coering$hysica! !oss and damage inc!uding theft, anda!ism and ma!icious mischief, co!!a$se,water damage, and such other $eri!s as may be a$$!icab!e to a Proect. +uch insurancesha!! inc!ude the interest of Owner, Contractor, and a!! +ubcontractors as their interests

may a$$ear.

Contractor sha!! $urchase and maintain e;cess !iabi!ity Fumbre!!a !iabi!ity insurance on anoccurrence basis coering c!aims in e;cess of, and fo!!owing the terms of, the insuranceset forth in this +chedu!e with a "Coverage amount$ minimum !imit $er occurrence and "Coverage amount$ annua! aggregate !imit. A!! insurance re-uired by this Agreementsha!! be $urchased and maintained with a com$any or com$anies !awfu!!y authori'ed todo business in "urisdiction$ . +uch insurance sha!! be for !imits of !iabi!ity as s$ecifiedfor the Proect or !ega!!y re-uired, whicheer is greater.

A!! re-uired insurance $o!icies sha!! be endorsed to $roide =I days $rior written notice

by certified mai!, of any materia! change, cance!!ation, or non7renewa! to Owner. Proofof the re-uired insurance and endorsements sha!! be made by submission to Owner, $riorto commencement of a Proect, of certificates of insurance and endorsements satisfactoryto Owner. A!! re-uired insurance sha!! be maintained unti! Owner has acce$ted theProect and ina! Payment has been made.


44/59

S!e"&le III

A!!eptan!e Te#t$n0

This schedu!e necessari!y aries from $roect to $roect. 4t must be s$ecific to the

$articu!ar e-ui$ment se!ected for the "ET $roect, the characteristics of the renewab!eenergy techno!ogy being uti!ised, the ca$abi!ities and !imitations of the $roect


45/59

". Acceptance Tests for Electric !eneration Equipment

:cceptance tests for Electric eneration E!uipment shall be as provided in

/chedule .+ of the 2acility %ease..*+ Contractor will develop, using a !ualified outside testing firm, appropriate additions

to the above-referenced testing protocols to allow for testing during conditions that may

eist at different times of the year, including less than ideal test conditions. GE Powerand the /tate shall ta1e all necessary actions, including without limitation, ta1ing

delivery of all steam and chilled water output, and the /tate shall coordinate with the

8niversity to ensure that necessary actions are ta1en, so that the :cceptance Tests can becompleted on the dates so scheduled.


46/59

S!e"&le IV

Pa%ment M$le#tone S!e"&le


47/59

S!e"&le V

La% Do*n Aea#

See Atta!e" Map


48/59


49/59

S!e"&le VII

Te Wo4

This schedu!e necessari!y aries from $roect to $roect. 4t must be s$ecific to the

$articu!ar e-ui$ment se!ected for the "ET $roect, the characteristics of the renewab!eenergy techno!ogy being uti!ised, the ca$abi!ities and !imitations of the $roect


50/59


51/59

S!e"&le VIII

Appo3e" S&8!onta!to# an" S&ppl$e#

S&8!onta!to#

/ampleC:TE()H :GE P(/ITI(328CTI(u#contractors

:'C roup, Inc. Project Engineer

C#E International Energy Construction Ganager

Gajor E!uipment /uppliersEast 0ind Ganufacturing 0ind Turbine enerators

Carib Electric Transformers


52/59

S!e"&le I=

S&8!onta!to Waant$e#

This schedule is a technical document that necessaril$ %aries from pro&ect to pro&ect.

't is #ased on the particular rene(a#le ener)$ technolo)$ #ein) utilised and thespecific manufactured equipment #ein) installed. E*pected equipment and

(or+manship (arranties and applica#le performance standards should #e discussed #$

Contractor and ,(ner.

The follo(in) e*ample of a (arranties ta#le relates to a co)eneration pro&ect. The

format is equall$ useful for -ET pro&ects.


53/59


54/59

S!e"&le =

Fom o- Paent G&aantee

4n the form of guaranty be!ow, the Contractor


55/59

ear!ier) at the time any Ob!igor becomes the subect of ban*ru$tcy or other inso!ency$roceedingsD (b) agrees to $ay a!! costs, e;$enses and reasonab!e attorneys< fees incurredby Owner in enforcingthis Agreement and the Ob!igations and rea!i'ing on any co!!atera! for eitherD $roidedhoweer, that uarantor sha!! not be re-uired to $ay such amounts incurred by Owner in

any attem$ted enforcement by Owner of this Agreement in which uarantor u!timate!y$reai!sD and (c) agrees to $ay to Owner the amount of any $ayments made to Owner or.another in connection with any of the Ob!igations which are recoered from Owner by atrustee, receier, creditor or other $arty $ursuant to a$$!icab!e !aw.

8. This is a guarantee of $ayment and $erformance of the Ob!igations, and not ofco!!ection. Owner sha!! not be ob!igated to9 (a) ta*e any ste$s whatsoeer to co!!ect from,or to fi!e any c!aim of any *ind against, any Ob!igor, any other guarantor, or any other$erson or entity !iab!e for $ayment or $erformance of any of the Ob!igationsD or (b) ta*eany ste$s whatsoeer to $rotect, acce$t, obtain, enforce, ta*e $ossession of, $erfect itsinterest in, forec!ose or rea!i'e on co!!atera! or security, if any, for the $ayment or

$erformance of any of the Ob!igations or any guarantee of any of the Ob!igationsD or (c)in any other res$ect e;ercise any di!igence whateer in co!!ecting or attem$ting to co!!ectany of the Ob!igations by any means.

=. The uarantor


56/59

enforcement of this Agreement (e;ce$t #an*ru$tcy and other inso!ency7re!ateddefenses) that Ob!igors wou!d be entit!ed to assert in defense to $ayment or $erformanceof any of the Ob!igations.

>. The uarantor hereby unconditiona!!y waies (a) $resentment, notice of dishonor,

$rotest, demand for $ayment and a!! notices of any *ind, inc!uding without !imitation9notice of acce$tance hereofD notice of the creation of any of the Ob!igationsD notice ofnon$ayment, non$erformance or other defau!t on any of the Ob!igationsD and notice ofany action ta*en to co!!ect u$on or enforce any of the Ob!igationsD (b) any subrogation tothe rights of Owner against any Ob!igor and any other c!aim against any Ob!igor whicharises as a resu!t of $ayments made by the uarantor $ursuant to this Agreement, unti! theOb!igations hae been $aid or. $erformed in fu!! and such $ayments are not subect to anyright of recoeryD and (c) any c!aim for contribution against any co7guarantor, unti! theOb!igations hae been $aid or $erformed in fu!! and such $ayments are not subect to anyright of recoery.

?. The uarantor re$resents and warrants that9a. The e;ecution, de!iery and $erformance of this Agreement by the uarantorare within the cor$orate $owers of the uarantor, hae been du!y authori'ed by a!!necessary cor$orate action and do not and wi!! not (i) re-uire any consent or a$$roa! ofthe stoc*ho!ders (or other goerning body) of the uarantor which has not been obtained,(ii) io!ate any $roision of the artic!es of incor$oration or by7!aws (or other goerningru!es of the enter$rise) of the uarantor or of any !aw, ru!e, regu!ation, order, writ,udgment, inunction, decree, determination or award $resent!y in effect hainga$$!icabi!ity to the uarantor or any subsidiary of the uarantorD (iii) re-uire the consentor a$$roa! of, or fi!ing or registration with, any goernmenta! body, agency or authority,or (i) resu!t in a breach of or constitute a defau!t under, or resu!t in the im$osition of any!ien, charge or encumbrance u$on any $ro$erty of the uarantor or any subsidiary of theuarantor $ursuant to, any indenture or other agreement or instrument under which theuarantor or any subsidiary of the uarantor is a $arty or by which it or any of its$ro$erties may be bound or affected.

b. This Agreement constitutes the !ega!, a!id and binding ob!igation of theuarantor enforceab!e in accordance with its terms, e;ce$t as such enforceabi!ity may be!imited by ban*ru$tcy or simi!ar !aws affecting the enforceabi!ity of creditors< rightsgenera!!y.

@. This Agreement sha!! inure to the benefit of Owner and its successors and assigns,inc!uding eery ho!der or owner of any of the Ob!igations, and sha!! be binding u$on theuarantor and the uarantor


57/59

subect matter hereof sha!! be binding u$on Owner un!ess e;$ressed herein. ThisAgreement sha!! be goerned by the !aws of the "Country$ without regard to conf!ictsof !aw $rinci$!es.

. The uarantor hereby consents to the e;c!usie urisdiction of a com$etent court in

"Country$ , and waies any obection based on !ac* of $ersona! urisdiction, im$ro$erenue or forum non conveniens, with regard to any actions, c!aims, dis$utes or$roceedings re!ating to this Agreement, or any document de!iered hereunder or inconnection herewith, or any transaction arising from or connected to any of theforegoing. 2othing herein sha!! affect the +tate


58/59

S!e"&le =I

Go3enmental A&to$2at$on# to 8e O8ta$ne"

This schedu!e necessari!y aries from $roect to $roect. 4t must ta*e account not on!y ofthe characteristics of the renewab!e energy techno!ogy being uti!ised, and a!so theca$abi!ities and !imitations of the $roect


59/59

Epc Template

Documents