CONSTRUCTION MANAGEMENT AGREEMENT

Exhibit 10.77

FOIA CONFIDENTIAL TREATMENT REQUESTED

PORTIONS OF THIS EXHIBIT MARKED BY *** HAVE BEEN OMITTED PURSUANT TO A

REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION

ENGINEERING, PROCUREMENT

AND

CONSTRUCTION MANAGEMENT AGREEMENT

by and between

DUKE ENERGY INDIANA, INC., as Owner

and

BECHTEL POWER CORPORATION, as Contractor

for the

CONSTRUCTION OF AN INTEGRATED GASIFICATION

COMBINED CYCLE COAL-FIRED ELECTRICAL

GENERATION FACILITY IN EDWARDSPORT, INDIANA

Dated December 15, 2008

RESTRICTED DUKE-BECHTEL CONFIDENTIAL INFORMATION. Contains confidential information proprietary to Duke Energy Indiana, Inc. and/or Bechtel Power Corporation that may only be used, reproduced, or disclosed outside of such companies pursuant to the terms of that certain confidentiality letter agreement, dated as of June 9, 2008, by and between Duke Energy Indiana, Inc. and Bechtel Power Corporation, as amended, restated or supplemented from time to time.

Table of Contents

 

 

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RESTRICTED DUKE-BECHTEL CONFIDENTIAL INFORMATION

 

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RESTRICTED DUKE-BECHTEL CONFIDENTIAL INFORMATION

 

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EXHIBITS

 

 

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ENGINEERING, PROCUREMENT AND

CONSTRUCTION MANAGEMENT AGREEMENT

This ENGINEERING, PROCUREMENT AND CONSTRUCTION MANAGEMENT AGREEMENT (the “ Agreement ”) is entered into as of the 15th day of December, 2008 (the “ Effective Date ”), by and between DUKE ENERGY INDIANA, INC., an Indiana corporation having a place of business in Plainfield, Indiana (“ Owner ”), and BECHTEL POWER CORPORATION, a Nevada corporation with a place of business in Frederick, Maryland (“ Contractor ”). Owner and Contractor may be referred to individually as a “ Party ” and collectively as the “ Parties ”.

RECITALS

WHEREAS , Owner has announced its intent to procure, construct, install and commission a new, nominally rated 630 MW integrated gasification combined cycle coal-fired electrical generation facility (the “ Facility ”) to be located at the Edwardsport Site (as further described in Exhibit D attached hereto, the “ Site ”) in Knox County, Indiana (the “ Project ”);

WHEREAS , Contractor is engaged in the business of designing, engineering, constructing and commissioning power generating facilities;

WHEREAS , the Parties, together with the General Electric Company, acting through its GE Energy business (“ GE ”), have previously entered into (a) that certain Technical Services Agreement, dated as of February 13, 2006, and (b) that certain Technical Services Agreement, dated as of May 7, 2007 (collectively, as amended, the “ Initial TSAs ”), pursuant to which Contractor and GE provided Owner (i) a Front-End Engineering and Design Study (a “ FEED Study ”), which included a feasibility study for the construction of the Facility as well as a Facility design and a basis for determining the price for Contractor and GE to provide the engineering, design, procurement, construction and commissioning of the relevant portions of the Facility, and (ii) certain additional engineering services in support of the Project;

WHEREAS , following review of the FEED Study and the other work products delivered to Owner by Contractor and GE pursuant to the Initial TSAs, the Parties have mutually agreed to modify the scope of services to be provided by Contractor and GE with respect to the Facility and the price structure related thereto;

WHEREAS , as a result of such modification, Owner and GE have entered into an agreement pursuant to which GE will provide certain equipment and engineering services related to the Project;

WHEREAS , as an additional result of such modification, Owner and Contractor have entered into a non-binding Term Sheet, dated as of April 25, 2008 (the “ Term Sheet ”), which provides the basis for negotiations between Contractor and Owner with respect to an agreement whereby Contractor would perform certain engineering, procurement and construction management services in connection with the Project;

 

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WHEREAS , the Parties have entered into a Technical Services Agreement, dated as of June 9, 2008 (the “ Recent TSA ”), pursuant to which Contractor has commenced, on a limited notice to proceed basis, certain of the services described in the Term Sheet on the terms and conditions set forth in the Recent TSA; and

WHEREAS , the Parties now desire that Owner engage Contractor to perform engineering, procurement and construction management services in connection with the Project as set forth herein;

NOW, THEREFORE , in consideration of the recitals, the mutual promises herein and other good and valuable consideration, the receipt and sufficiency of which the Parties acknowledge, the Parties, intending to be legally bound, stipulate and agree as follows:

 

1.	DEFINITIONS

The following capitalized words and phrases used in this Agreement shall have the following meanings unless otherwise noted:

*** shall mean ***.

*** shall mean ***.

“ Affiliate ” shall mean, with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with such first Person at such time.

“ Agreement ” shall have the meaning set forth in the first paragraph above and shall include all Exhibits, and all amendments hereto (including, to the extent applicable, Change Orders).

“ Air Permit ” shall mean, collectively, the documents issued by the Indiana Department of Environmental Management, Office of Air Quality, related to and permitting the Significant Source Modification to Part 70 of the existing Operating Permit No. T083-7243-00003 issued to Owner on January 25, 2008.

“ Assigned Job Duties ” shall have the meaning set forth in Section 5.1 .

“B&V” shall have the meaning set forth in Section 21.4(b) .

“ Baseline Contractor Schedule ” shall mean the critical schedule of key dates and milestones for Contractor’s Scope of Services, including the Milestones, as of the Effective Date, as prepared by Owner and Contractor and attached hereto as Exhibit G , as amended from time to time pursuant to Article 9.

“ Borrowed Employees ” shall have the meaning set forth in Section 5.1 .

“ Business Day ” shall mean every Day other than Saturday, Sunday or a legal holiday recognized by the State.

 

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“***” shall have the meaning set forth in Section 8.2 .

*** shall mean ***.

“ Certificate of Final Completion ” shall have the meaning set forth in Section 11.3(e) .

“ Certificate of Mechanical Completion ” shall have the meaning set forth in Section 11.1(e) .

“ Change ” shall have the meaning set forth in Section 9.1 .

“ Change in Law ” shall mean a change to a Law, or a change in the binding interpretation or application of a Law by the cognizant executive or judicial authorities having jurisdiction thereof, after the Effective Date that results in an increase in costs for Contractor to perform the Services, as affected to comply with such change, which increase in costs Contractor would not have incurred but for this Agreement; provided , however , that a “Change in Law” shall not include (a) any change to a Law that is enacted by any Government Authority prior to the Effective Date but, by its terms, does not come into effect until after the Effective Date or (b) any change to any Law, or a change in the binding interpretation or application of a Law by the cognizant executive or judicial authorities having jurisdiction thereof, that governs the manner in which Contractor performs its obligations under this Agreement.

“ Change Order ” shall have the meaning set forth in Section 9.3 .

“ CM ISBL Work ” shall mean that portion of the work, including re-work, in connection with the Project that is “inside the battery limit,” namely the gasification island, power block, flare system and cooling tower, and above the ground and above the finished foundations, including all such work to be performed or provided under the Owner Contracts, as such work is further described in Part I of the Scope Book.

“ Communication and Management Protocol ” shall mean the Communication and Management Protocol to be followed by Owner and Contractor attached hereto as Exhibit B .

“ Competitors of Contractor ” shall mean each of *** and their respective Affiliates (other than any such Affiliate that, before becoming such an Affiliate, was a Permitted User).

“ Confidentiality Agreement ” shall mean that certain confidentiality letter agreement, dated as of June 9, 2008, by and between Owner and Contractor attached hereto as Exhibit L .

“ Construction Management Services ” shall have the meaning set forth in Section 3.4(a) .

“ Construction Phase ” shall have the meaning set forth in Section 18.2 .

 

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“ Contract Price ” shall mean the sum of (a) the *** and (b) the ***, as such amounts may be adjusted by Change Orders in the manner set forth herein.

“ Contractor ” shall have the meaning set forth in the first paragraph above and shall include its successors and permitted assigns.

“ Contractor Default ” shall have the meaning set forth in Section 19.1 .

“ Contractor Indemnitees ” shall have the meaning set forth in Section 13.2 .

“ Contractor EP Schedule ” shall mean the critical schedule of key dates and milestones relating to the Engineering Services and the Procurement Services to be performed by Contractor hereunder (including the Milestones related thereto) as prepared by Contractor, and as modified or updated from time to time by Contractor in accordance with Section 6.2.2 of Part I of the Scope Book and Section 7.1 herein.

“ Contractor’s Houston Office ” shall mean the office of Contractor located at 3000 Post Oak Road, Houston, Texas 77056.

“ Contractor’s Project Manager ” shall mean the Person whom Contractor designates in Exhibit F to issue and receive communications on Contractor’s behalf under this Agreement.

“ Contractor’s Site Representative ” shall mean the Person whom Contractor designates in Exhibit F to represent Contractor at the Site.

“ Contractor’s Steering Committee Members ” shall mean the two (2) executives of Contractor designated by Contractor to represent Contractor on the Steering Committee.

“ Control ” shall mean (a) the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of a Person, whether through the ownership of voting securities, as a trustee or executor, by contract or credit arrangement, or otherwise, or (b) the ownership, directly or indirectly, of fifty percent (50%) or more of the equity interest in a Person.

“ CPCN ” shall mean the Certificate of Public Convenience and Necessity issued to Owner by the IURC authorizing Owner to begin construction of the Facility.

“ CPR Rules ” shall have the meaning set forth in Section 23.2 .

“ Day ” shall mean a calendar day, including Saturdays, Sundays, and holidays.

“ Defects ” shall have the meaning set forth in Section 12.2 .

“ Design Documentation ” shall have the meaning set forth in Section 3.5 , and in each case excluding any Technical Data.

“ Dispute ” shall have the meaning set forth in Section 23.1 .

 

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“ Dispute Resolution Meeting ” shall have the meaning set forth in Section 23.2 .

“ Documentation ” shall mean collectively (a) all drawings, specifications, reports, studies, plans, manuals, schedules, analyses, recommendations, estimates and other documents, and the data therein, in printed or electronic format, that are prepared in the performance of the Services and delivered, or required hereunder to be delivered, to Owner, including Design Documentation, and (b) all “Work Product” as defined in the Recent TSA.

“ Effective Date ” shall mean the date set forth in the first paragraph of this Agreement.

“ Engineering Services ” shall have the meaning set forth in Section 3.5 .

“ Environmental, Safety and Health Plan ” shall mean that certain Site Environmental, Safety and Health Plan, which, among other things, addresses unsafe and undesirable behavior for environmental matters (U.S. Environmental Protection Agency and any applicable State agency), health matters (industrial hygiene and employee health hazard prevention/mitigation) and safety matters (including work safety and fitness for duty), for the Project, Rev. 5, as amended, restated or supplemented from time to time.

“ Estimate ” shall mean ***.

“***” shall have the meaning set forth in Section 8.3(a).

“ Facility ” shall have the meaning set forth in the Recitals.

“ FEED Study ” shall have the meaning set forth in the Recitals.

***

“ Final Completion ” shall have the meaning set forth in Section 11.3 .

“ Final Completion Date ” shall mean the date on which Final Completion actually occurs, as determined in the manner set forth in Section 11.3(e) .

“ Final Payment Invoice ” shall have the meaning set forth in Section 8.6 .

“ Financial Institutions ” shall mean any party entering into a loan agreement, guarantee, note, indenture or security agreement with Owner or its Affiliates in relation to the Facility, including arrangements relating to interest rate or currency hedging and arrangements relating to the construction or permanent financing or refinancing of the Facility.

***

“ Force Majeure ” shall mean, with respect to a Party, (i) unanticipated causes beyond its reasonable control (actions of Affiliates and subcontractors of a Party will be deemed to be under the control of that Party); or (ii) acts of God (including fires, earthquakes, floods, hurricanes, tornadoes, earthquakes, lightning, pandemic, epidemics and other natural

 

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calamities), severe weather conditions, strikes or other labor disturbances except those involving only employees of Contractor (unless they are a part of a national or international strike or other national or international labor disturbance), war (declared or undeclared), or riots, in each case, which actually delays or prevents a Party’s performance hereunder. For the avoidance of doubt, local strikes and other local labor disturbances involving employees of Contractor that are not a part of a regional, national or international strike or other national or international labor disturbance shall not be deemed to be Force Majeure. Force Majeure shall not include inability to pay.

“ GE ” shall have the meaning set forth in the Recitals.

“GE Change Review Board ” shall mean GE’s “Project Manager” under the GE Equipment Contract and Owner’s Project General Manager.

“GE Equipment” shall mean the power generation, gasification island, power island and related equipment to be provided pursuant to the GE Equipment Contract.

“ GE Equipment Contract ” shall mean the Contract for the Sale of Power Generation, Gasification Island and Miscellaneous Power Island Equipment and Related Services, dated as of December 20, 2007, by and between Owner and GE.

“ Government Approvals ” means all permits, licenses, authorizations, consents, decrees, waivers, privileges and approvals from and filings with any Government Authority required for or material to the development, financing, ownership, construction, operation or maintenance of the Facility in accordance with this Agreement, including the CPCN and other work permits, environmental permits, licenses and construction permits.

“ Government Authority ” shall mean any federal, state, county, city, local, municipal, foreign or other government or quasi-governmental authority or any department, agency, subdivision, court or other tribunal of any of the foregoing.

“ Hazardous Materials ” shall mean substances defined as “hazardous substances” pursuant to Section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601(14)); those substances defined, identified or listed as “hazardous waste” pursuant to Section 1004(5) or Section 3001 of the Resource, Conservation and Recovery Act (42 U.S.C. Section 6901 or 6921); those substances designated as a “hazardous substance” pursuant to Section 311 (b)(2)(A) or as a “toxic pollutant” pursuant to Section 307(a)(1) of the Clean Water Act, as amended (33 U.S.C. Section 3121(b)(2)(A) or Section 1317(a)(1)); those substances defined as “hazardous materials” pursuant to Section 103 of the Hazardous Materials Transportation Act (49 U.S.C. Sections 1801 et seq .); those substances regulated as a “chemical substance or mixture” or as an “imminently hazardous chemical substance or mixture” pursuant to Section 6 or 7 of the Toxic Substances Control Act, as amended (15 U.S.C. Sections 2605 or Section 2606); those substances defined as “contaminants” pursuant to Section 1401 of the Safe Drinking Water Act, as amended (42 U.S.C. Sections 300f), if present in excess of permissible levels; those substances regulated pursuant to the Oil Pollution Act of 1990 (33 U.S.C. Sections 2701 et seq .); those substances defined as a “pesticide” pursuant to Section 2(u) of the Federal

 

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Insecticide, Fungicide, and Rodenticide Act as amended by the Federal Environmental Pesticide Control Act of 1972 and by the Federal Pesticide Act of 1978 (7 U.S.C. Section 136(u)); those substances defined as a “source”, “special nuclear” or “by-product” material pursuant to Section 11 of the Atomic Energy Act of 1954, as amended (42 U.S.C. Section 2014); those substances defined as “residual radioactive material” in Section 101 of the Uranium Mill Tailings Radiation Control Act of 1978, as amended (42 U.S.C. Sections 7901); those substances defined as “toxic materials” or “harmful physical agents” pursuant to Section 6 of the Occupational Safety and Health Act, as amended (29 U.S.C. Section 651); those substances defined as “hazardous air pollutants” pursuant to Section 112(a)(6), or “regulated substance” pursuant to Section 112(r)(2)(B) of the Clean Air Act, as amended (42 U.S.C. Section 7412(a)(6) or Section 7412(r)(2)(B)); those substances listed as “extremely hazardous substances” pursuant to Section 302(a)(2) of the Emergency Planning & Community Right-to-Know Act of 1986 (42 U.S.C. Section 11002(a)(2)); and those other hazardous substances, hazardous wastes, toxic pollutants, hazardous materials, chemical substances or mixtures, imminently hazardous chemical substances or mixtures, contaminants, pesticides, source materials, by-product materials, residual radioactive materials, toxic materials, harmful physical agents, air pollutants, regulated substances, or extremely hazardous substances defined, listed or identified in any regulations promulgated pursuant to any environmental Law, and all other contaminants, toxins, pollutants, hazardous substances, substances, materials and contaminants, toxic and hazardous materials, the use, disposition, possession or control of which is regulated by one or more Laws.

“ HR Issues ” shall have the meaning set forth in Section 5.1 .

“ HR Policies ” shall have the meaning set forth in Section 5.1 .

“ Indemnified Party ” shall mean Owner Indemnitees or Contractor Indemnitees, as applicable.

“ Initial TSAs ” shall have the meaning set forth in the Recitals.

“ IURC ” shall have the meaning set forth in Section 21.4 .

“ Laws ” shall mean, at any date of determination, all statutes, laws, codes, ordinances, orders, judgments, decrees, injunctions, licenses, rules, permits, approvals, agreements, and regulations of any Government Authority, including all applicable codes, standards, rules and regulations of the State, in effect on such date, including all Government Approvals.

“ Lien ” shall mean any lien, mortgage, pledge, encumbrance, charge, security interest, defect in title, or other claim filed or asserted in connection with the Project by or through Contractor, a Subcontractor or any other third party under the control of Contractor (provided that neither the Managed Vendors nor GE shall be construed to be “under the control” of Contractor) or any Subcontractor against the Facility, the Site, the Owner Equipment, the GE Equipment or any other structure or equipment at the Site.

“ License Continuation Fee ” shall have the meaning set forth in Section 19.5(c)(ii) .

 

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“ Managed Vendors ” shall mean the suppliers of Owner Equipment or Owner Services pursuant to the Owner Contracts.

“ Material Assignment Schedule ” shall mean the Material Assignment Schedule attached hereto as Exhibit C , as amended or supplemented from time to time in accordance with Section 3.3(a) .

“ Mechanical Completion ” shall have the meaning set forth in Section 11.1 .

“ Mechanical Completion Date ” shall mean the date on which Mechanical Completion actually occurs, as determined in the manner set forth in Section 11.1(e) .

“ Milestone ” shall mean an activity or series of activities in the execution of the Services or the CM ISBL Work designated as a “Milestone” on the Baseline Contractor Schedule or the Contractor EP Schedule.

“ Mine Remediation Reports ” shall mean the “Mine Subsidence Evaluation, Edwardsport Power Plant, GAI Project Number: C040605” dated April 2005, and “Final Report, Edwardsport Mine Stabilization, Duke Energy, Edwardsport Generating Station, GAI Project Number: C060638.02” dated April 2008.

“*** Payment Invoice ” shall have the meaning set forth in Section 8.3(a) .

“ Monthly Progress Report ” shall mean the written report Contractor delivers to Owner each month describing the progress in the Services and the CM ISBL Work achieved during the prior month, as provided in Section 3.9(a) .

“ Non-Directed Change ” shall have the meaning set forth in Section 9.1 .

“ Notice of Final Completion ” shall have the meaning set forth in Section 11.3(d) .

“ Notice of Mechanical Completion ” shall have the meaning set forth in Section 11.1(c) .

“ NPDES Permit ” shall mean the documents issued by the Indiana Department of Environmental Management, Office of Water Quality, related to the modification of the existing Edwardsport Generating Station NPDES permit number IN0002780 for the purpose of characterizing and permitting discharge of the integrated gasification combined cycle process and stormwaters via the existing outfall, which documents shall be issued following Owner’s application for such modification (it being understood that Owner shall submit such application after the Effective Date at a time reasonably determined by Owner, in its sole discretion, based upon the critical path activities set forth in the then-current Project Schedule).

“ *** ” shall have the meaning set forth in Section 14.4(a) .

“ *** Administrator ” shall have the meaning set forth in Section 14.6(b) .

 

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“ *** Site ” shall have the meaning set forth in Section 14.4(c) .

“ Owner ” shall have the meaning set forth in the first paragraph above and shall include its successors and permitted assigns.

“ Owner Contracts ” shall mean the Owner Equipment Contracts and the Owner Service Contracts.

“ Owner Default ” shall have the meaning set forth in Section 19.3 .

“ Owner Equipment ” shall mean the equipment that Owner shall purchase as contemplated by the Material Assignment Schedule and with respect to which Contractor shall provide Procurement Services as generally described in Part I of the Scope Book and in the Material Assignment Schedule.

“ Owner Equipment Contracts ” shall mean the contracts, purchase orders, limited notices to proceed or other agreements between Owner and the suppliers of Owner Equipment.

“ Owner Indemnitees ” shall have the meaning set forth in Section 13.1 .

“ Owner Items ” shall mean the Owner Equipment and other materials, supplies, parts and equipment used or to be used by any Managed Vendor in connection with the CM ISBL Work.

“ Owner Service Contracts ” shall mean the contracts, purchase orders, limited notices to proceed or other agreements between Owner and the suppliers of Owner Services.

“ Owner Services ” shall mean the services that Owner shall procure and with respect to which Contractor shall provide Construction Management Services as described in Part I of the Scope Book and as indicated in the Material Assignment Schedule.

“ Owner Suppliers ” shall mean the vendors, suppliers, construction contractors and others providing Procurement Items to Owner in respect of the Facility.

“ Owner’s Plainfield Office ” shall mean the office of Owner located at 1000 East Main Street, Plainfield, Indiana 46168.

“ Owner’s Project General Manager ” shall mean the Person whom Owner designates in writing to issue and receive communications on Owner’s behalf under this Agreement.

“ Party ” shall have the meaning set forth in the first paragraph.

“ Permitted User ” shall mean any independent contractor engaged by Owner or any of its Affiliates that (a) is under a confidentiality obligation to Owner or such Affiliate and (b) agrees to use the Documentation only for the purposes for which such independent contractor

 

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was engaged by Owner or such Affiliate (which purposes may not be broader than the Permitted Purposes).

“ Permitted Purposes ” shall have the meaning set forth in Section 18.2 .

“ Person ” shall mean any individual, company, corporation, partnership, joint venture, association, joint stock company, limited liability company, trust, estate, unincorporated organization, Government Authority or other entity having legal capacity.

“ Prime Interest Rate ” shall mean, as of a particular date, the prime rate of interest as published on that date in The Wall Street Journal , and generally defined therein as “the base rate on corporate loans posted by at least 75% of the nation’s 30 largest banks.” If The Wall Street Journal is not published on a date for which the interest rate must be determined, the prime interest rate shall be the prime rate published in The Wall Street Journal on the nearest-preceding date on which The Wall Street Journal was published. If The Wall Street Journal discontinues publishing a prime rate, the prime interest rate shall be the prime rate announced publicly from time to time by Bank of America, N.A. or its successor.

“ Procurement Items ” shall have the meaning set forth in Section 3.3(a) .

“ Procurement Services ” shall have the meaning set forth in Section 3.3(a) .

“ Progress Meetings ” shall have the meaning set forth in Section 3.9(b) .

“ Project ” shall have the meaning set forth in the Recitals.

“ Project Job Rules and Regulations ” shall mean those certain Project Job Rules and Regulations Rev. dated July 22, 2008, as amended, restated or supplemented from time to time.

“ Project Schedule ” shall mean the critical schedule of key dates and milestones for the Project as prepared by Owner and as modified or updated from time to time by Owner.

“ Prudent Industry Practice ” shall mean those practices, methods, processes and standards of safety and performance, as the same may change from time to time, as are commonly used, or are generally accepted, in the engineering, procurement or construction management, in the case of Contractor, or construction, operation and maintenance, in the case of Owner, of electric power generation facilities with a complexity at a level similar to the Facility (irrespective of whether any such similar facility is intended to capture carbon dioxide), which in the exercise of reasonable judgment and in light of the facts known at the time the decision was made, after due and diligent inquiry, are considered good, safe and prudent practices, methods, processes and standards in accordance with generally accepted standards of professional care, skill, diligence, and competence applicable to the engineering, procurement and construction management, in the case of Contractor, or construction, operation and maintenance, in the case of Owner, practices in the United States for electric power generation facilities with a complexity at a level similar to the Facility (irrespective of whether any such similar facility is intended to capture carbon dioxide). “Prudent Industry

 

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Practice” does not necessarily mean a practice that would achieve an optimal solution or minimal solution, or any method or standard in all cases.

“ Punch List Items ” shall mean any minor defects identified by Owner or Contractor during installation and commissioning (and upon which the Parties shall mutually agree) that do not affect the safety, reliability, operability or the mechanical integrity of the Facility or the ability of Owner to operate the Facility in accordance with Prudent Industry Practices.

“ Quality Assurance Plan ” shall mean that certain Duke Energy Edwardsport IGCC Project Integrated Quality Plan, which comprises all those planned and systematic actions necessary or prudent to provide adequate confidence that a structure, system or component will perform satisfactorily in service and includes management and control of the design, engineering, and construction services for the Project, Rev. dated October 21, 2008, as amended, restated or supplemented from time to time.

“ *** ” shall have the meaning set forth in Exhibit J .

“ Recent TSA ” shall have the meaning set forth in the Recitals.

***

“ Sales and Use Taxes ” shall mean all present and future sales, use and similar Taxes imposed on the sale of any materials from Contractor to Owner, if any, or the performance of the Services by Contractor by the State or any other Government Authority.

“ Scope Book ” shall mean the Scope Book attached hereto as Exhibit A .

“ Scope of Services ” shall mean the scope of Services to be performed by Contractor as described in Part I of the Scope Book. Contractor’s Scope of Services shall not include any of the services, equipment, materials or other work required to be provided by Owner as described in Part I of the Scope Book.

***

“ Screening Measures ” shall have the meaning set forth in Section 5.1 .

“ SDS ” shall have the meaning set forth in Section 3.10 .

“ Services ” shall mean the engineering, procurement, construction management and related services and other obligations to be performed or complied with by Contractor hereunder, including those services and other obligations to be performed or complied with by Contractor as described in Part I of the Scope Book, the Material Assignment Schedule or the Communication and Management Protocol, and the repair and warranty work relating thereto, and shall include all of the foregoing items that were performed prior to the Effective Date pursuant to the Recent TSA; provided , however, that the Services shall not include any Shared Services.

“Shared Services” shall have the meaning set forth in Section 3.1(b) .

 

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“ Site ” shall have the meaning set forth in the Recitals as further described in Exhibit D and shall include any additional property that Owner purchases, leases or otherwise has an ownership interest in and that is used for the Project.

“ Site Control and Access Plan ” shall mean (a) the Time and Attendance Procedure, Document Number 25441-100-GPP-GCP-01012, Rev. 0 dated September 15, 2008, as amended, restated or supplemented from time to time and (b) any other Site Project Procedures, which, among other things, address the safe, efficient and proper prosecution of the Project at the Site, security at the Site, custody and control of equipment, materials and supplies at the Site and right of access and entrance to the Site by all Persons.

“ Site Project Procedures ” shall have the meaning set forth in Part I of the Scope Book.

“ Staffing Plan ” shall mean the summary project organization chart reflecting the overall organization and supervision of the Persons employed or managed by Contractor to provide the Services, attached hereto as Exhibit F .

“***” shall have the meaning set forth in Section 15.1 .

“ State ” shall mean the State of Indiana.

“ Steering Committee ” shall have the meaning set forth in Section 6.3 .

“ Subcontractor ” shall mean a Person, including any vendor, materialman or supplier, who has a contract (whether written or oral, a purchase order or otherwise) with Contractor or a contract with any Person hired by Contractor or with a Person of any lower tier (e.g., a second- or third-tier subcontractor) to perform any of the Services, at the Site or elsewhere.

“ Substantial Completion ” shall have the meaning set forth in Section 11.2 .

“ Substantial Completion Date ” shall mean the date on which Substantial Completion actually occurs.

“ Sulfur Intellectual Property Rights ” shall mean any and all existing and future patent rights, trademark rights, copyright rights, trade secret rights, know how rights and other rights owned by or licensed to Contractor relating to processes or apparatus for the conversion of hydrogen sulfide to sulfur in an environmentally acceptable manner, including Claus sulfur recovery, hydrogenating tail gas treating, and thermal oxidizing.

“Sulfur Jointly Developed Improvements” shall mean any and all improvements, modifications, variations, additions, deletions, or other changes of any kind or nature, which are useful for or in connection with Claus sulfur recovery, hydrogenation tail gas treating and thermal oxidizing, which are developed or acquired jointly by Owner and Contractor during the term of this Agreement and which are based in whole or in part on the Sulfur Intellectual Property Rights.

“ Sulfur License ” shall have the meaning set forth in Section 18.3 .

 

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“Sulfur Licensee Improvements” shall mean any and all improvements, modifications, variations, additions, deletions or other changes of any kind or nature which are useful for or in connection with Claus sulfur recovery, hydrogenation tail gas treating and thermal oxidizing, which are based in whole or in part on the Sulfur Intellectual Property Rights and which are developed by Owner during the term of this Agreement and which are not at the time known to Contractor, or known in the public domain.

“ Sulfur License Royalty ” shall have the meaning set forth in Section 18.3 .

***

***

***

***

“ Taxes ” shall mean all present and future license, documentation, recording and registration fees, all taxes (including income, gross receipts, unincorporated business income, payroll, sales, use, personal property (tangible and intangible), real estate, excise and stamp taxes), levies, imports, duties, assessments, fees, charges and withholdings of any nature whatsoever, and all penalties, fines, additions to tax, and interest imposed by any Government Authority. Taxes shall also include Sales and Use Taxes and all present and future customs, duties or levies or other import or export fees, including any charges imposed by North American Free Trade Association (NAFTA).

“ Technical Data ” shall mean the calculations identified in Exhibit E attached hereto.

“ Term Sheet ” shall have the meaning set forth in the Recitals.

“ Termination Charges ” shall have the meaning set forth in Section 19.5(c)(i) .

“ Third Party Claim ” shall mean any claim, demand or cause of action of every kind and character by any Person other than Owner, Contractor or their respective Affiliates.

“ Warranties ” shall have the meaning set forth in Section 12.1 .

“ Warranty Period ” shall mean the period commencing on the Substantial Completion Date and ending on the date that is the earlier of (a) *** and (b) ***, as such period may be extended from time to time as provided in Section 12.3 .

 

2.	GENERAL PROVISIONS

2.1 Intent of Contract Documents . It is the intent of the Parties that Contractor perform the Services and all of its other obligations under this Agreement for the Contract Price, which shall not be increased, except in accordance with Article 9 or as otherwise expressly set forth herein.

 

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2.2 Independent Contractor . Contractor shall perform and execute the provisions of this Agreement as an independent contractor to Owner and shall not in any respect be deemed or act, or hold itself out, as an agent of Owner for any purpose or reason whatsoever, except as contemplated in Sections 3.2 , 3.3 and 3.4 .

2.3 Subcontracting . Contractor shall not engage any Person, excluding Persons related to or affiliated with Contractor and functioning in the offices specifically identified in Exhibit I , to perform any portion of the Services without the prior written consent of Owner, which consent shall not be unreasonably withheld. In any event, Contractor shall ensure that it shall have the right to grant the intellectual property licenses to Owner, its Affiliates and Permitted Users herein irrespective of the performance by any Subcontractor of any Services. No contractual relationship shall exist between Owner and any Subcontractor with respect to the Services. Contractor shall be fully responsible for all acts, omissions, failures and faults of all Subcontractors as fully as if they were the acts, omissions, failures and faults of Contractor.

2.4 Interpretation .

(a) Headings . The titles and headings in this Agreement are inserted for convenience only and shall not be used for the purposes of construing or interpreting this Agreement.

(b) Plural/Singular . Words importing the singular also include the plural and vice versa.

(c) References . References to natural persons include Persons. References to “Articles” and “Sections” are references to Articles and Sections of this Agreement. References to “Exhibits” are references to the Exhibits attached to this Agreement, including all attachments to and documents and information incorporated therein, and all Exhibits are incorporated into this Agreement by reference.

(d) Gender . Words importing one gender include the other gender.

(e) Without Limitation . The words “include” and “including” are not words of limitation and shall be deemed to be followed by the words “without limitation.”

(f) Amendments . All references in this Agreement to contracts, agreements or other documents shall be deemed to mean those contracts, agreements or documents as the same may be modified, supplemented or amended from time to time.

(g) Industry Meanings . Words and abbreviations not otherwise defined in this Agreement which have well-known technical or design, engineering or construction industry meanings in the United States are used in this Agreement in accordance with those recognized meanings.

 

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(h) Agreement . Provisions including the word “agree”, “agreed” or “agreement” require the agreement to be recorded in writing.

(i) Approve . Provisions including the word “approve”, “approved” or “approval” require the approval to be recorded in writing.

(j) Written . Provisions including the word “written” or “in writing” mean hand-written, type-written, printed or electronically made and resulting in a permanent record.

(k) Drafting . Neither Contractor nor Owner shall assert or claim a presumption disfavoring the other by virtue of the fact that this Agreement was drafted primarily by legal counsel for the other, and this Agreement shall be construed as if drafted jointly by Owner and Contractor and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.

2.5 Inclusion; Conflicts . This Agreement (excluding the Exhibits) and the Exhibits shall be considered complementary, and what is required by one shall be binding as if required by all. The Parties shall attempt to give effect to all provisions. The failure to list a requirement specifically in one document or section of a document, once that requirement is specifically listed in another document or section, shall not imply the inapplicability of that requirement, and Contractor shall provide as part of its obligations hereunder all items required to conform the Services to the requirements of this Agreement. Any provision addressing any issue with specificity shall not be construed to limit any provision addressing the same or similar issue in general. In the event of a conflict between this Agreement (excluding the Exhibits) and the Exhibits, this Agreement (excluding the Exhibits) shall control and the conflicting provisions shall be interpreted so as to accord with the provisions of this Agreement (excluding the Exhibits).

2.6 Days . If a payment obligation falls due on a Day other than a Business Day, the obligation shall be deemed to be due on the next Business Day.

 

3.	CONTRACTOR RESPONSIBILITIES

3.1 Performance of Services .

(a) Generally . Contractor shall diligently, duly and properly perform and complete the Services and its other obligations in accordance with this Agreement, applicable Laws and Prudent Industry Practices, and shall obtain and maintain all Government Approvals necessary or prudent for the proper execution and completion of the Services. Contractor shall perform and provide all services not specifically delineated in this Agreement to the extent customary and necessary to complete the Services in accordance with Prudent Industry Practices. Contractor shall perform and provide the Services in a manner that will not disrupt or interfere with Owner’s operation of its existing coal-fired electric generation plant adjacent to the Site.

 

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(b) Shared Services . The Parties acknowledge and agree that they have established a shared services team comprised of personnel from each Party as more particularly described in the Communication and Management Protocol, which team is intended to provide support for work on the entirety of the Project, including the Services to be provided by Contractor hereunder, as described in the Communication and Management Protocol, in order to reduce costs for the Project (the “ Shared Services ”). Owner shall be responsible for directing and supervising the Shared Services team and in the performance of the work allocated to the Shared Services team. The personnel of Contractor on the Shared Services team, without regard to the type of work to be performed by such personnel or the portion of the Project for which such work relates, shall at all times be Borrowed Employees as contemplated by Article 5 . The Parties acknowledge and agree that this Shared Services team shall be available to Owner for work relating to any portion of the entire Project, including work outside of the CM ISBL Work. In performing the services with respect to any type of work allocated to the Shared Services team as indicated in the Staffing Plan or Communication and Management Protocol, Contractor shall use only personnel from this Shared Services team. The Parties agree to provide good faith, prompt and courteous coordination and collaboration, and to assist the other Party, at its request, in such other activities, as may be reasonably required for the successful and timely completion of work to be performed by the Shared Services team.

3.2 Appointment as Agent . Subject to the defined limits of authority set forth in this Section, Owner hereby authorizes Contractor to, and Contractor hereby agrees to, act as Owner’s agent for the purpose of performing the Procurement Services and the Construction Management Services. Contractor shall have no authority to, and shall not, take any of the following actions in connection with the Procurement Services or the Construction Management Services (without Owner’s general or specific approval): (1) make awards, (2) approve invoices, (3) consent to any change order under any Owner Contract or the GE Equipment Contract; (4) agree to or permit any amendment, modification, or supplement of any Owner Contract or the GE Equipment Contract; (5) waive or prejudice any of Owner’s rights with respect to any Owner Contract or the GE Equipment Contract, as applicable, or the obligations of the Managed Vendors or GE, respectively, relating thereto; (6) initiate or conduct any litigation, arbitration or other similar proceedings on behalf of Owner; (7) take any action that would cause a default or breach by Owner of an Owner Contract or the GE Equipment Contract; or (8) agree to or consent to termination or suspension of work or activities under any Owner Contract or the GE Equipment Contract.

3.3 Scope of Procurement Services .

(a) Subject to Section 3.2 , Contractor shall perform procurement Services for services, equipment (including spare parts related thereto), materials and supplies (collectively, the “ Procurement Items ”), as such Services are further described in this Section and in Part I of the Scope Book (the “ Procurement Services ”). The Parties acknowledge and agree that the Material Assignment Schedule contains a preliminary schedule of Procurement Items required for the Project for which Contractor shall provide Procurement Services, that Contractor is

 

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not obligated hereunder to provide Procurement Services with respect to all services, equipment (including spare parts related thereto), materials and supplies required for the Project and that the amount or type of Procurement Items required for the Project for which Contractor shall provide Procurement Services may be changed by Owner from time to time. Accordingly, Owner may, from time to time, propose changes to the Material Assignment Schedule to change the amount or type of Procurement Items required for the Project for which Contractor shall perform Procurement Services, and the Parties shall proceed with respect to such proposed change in accordance with the terms and conditions set forth in Article 9 . Contractor shall perform the Procurement Services, as a Reimbursable Cost, with respect to any additions to the Material Assignment Schedule in accordance with the terms of this Agreement.

(b) Contractor shall, in connection with the provision of Procurement Services, provide the advice and recommendations to Owner as described in Part I of the Scope Book based on the actions that Contractor would take if Contractor were directly responsible to Owner as the prime contractor for the applicable Procurement Items. Each contract, purchase order or other agreement executed or entered into pursuant to this Section 3.3 shall be executed by Owner, and each such contract, purchase order or other agreement shall be an Owner Contract for all purposes hereunder. In connection with the Procurement Services to be provided hereunder, the Parties shall mutually develop a process to integrate Owner’s purchasing system with Contractor’s purchasing system in order to coordinate the management of materials purchased for the Facility and the payments made or due to Owner Suppliers. Nothing contained herein shall create any contractual relationship between Contractor, on the one hand, and GE or any Managed Vendor, on the other hand, and Contractor shall have no liability (including any payment liability) to GE or any Managed Vendor with respect to goods or services provided by any of them pursuant to the GE Equipment Contract or the Owner Contracts, as applicable.

 

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3.4 Scope of Construction Management Services .

(a) Subject to Section 3.2 , Contractor shall generally manage, supervise and coordinate all CM ISBL Work as contemplated herein and as further described in Part I of the Scope Book and the Communication and Management Protocol (the “ Construction Management Services ”). Contractor shall perform the Construction Management Services in a manner designed to achieve Mechanical Completion, Substantial Completion and Final Completion by their respective dates set forth in the Project Schedule. Contractor shall perform the Construction Management Services in a manner designed to achieve completion of the CM ISBL Work in compliance with the Scope Book, Design Documentation, Project Schedule and the other terms and conditions set forth herein. Contractor shall diligently perform the Construction Management Services in accordance with Prudent Industry Practices and the other terms and conditions of this Agreement. In performing the Construction Management Services hereunder, Contractor and Owner understand that Contractor is acting in a construction management role and does not assume the liabilities and obligations of a prime contractor with respect to the responsibilities assumed by the Managed Vendors or GE, unless the same or similar obligations are specifically set forth herein.

(b) Without limiting the generality of Section 3.4(a) , but subject to Section 3.2 , in performing the Construction Management Services, Contractor shall, for the benefit of Owner and with the same diligence and care and pursuant to the same standards as Contractor uses on any other electric generating power plant construction project in the United States with a similar level of complexity where Contractor is acting as the contractor for such project (but not less than the diligence, care and standards required by this Agreement), require each Managed Vendor to perform all elements of its work to be performed by such Person in compliance with the terms of the Owner Contract for such Managed Vendor and manage the Owner Contracts in a manner designed to achieve the Project Schedule. Owner shall provide Contractor with the relevant portions of each Owner Contract in order for Contractor to perform the Construction Management Services with respect thereto.

3.5 Engineering Services . Contractor shall diligently, duly and properly perform and complete engineering Services, including providing working drawings, designs and specifications (the “ Design Documentation ”) setting forth in detail the design of, and the requirements and procedures for the construction or testing for, that portion of the Project for which Contractor is responsible for the design, as more fully described in Part I of the Scope Book (collectively, the “ Engineering Services ”). Contractor hereby acknowledges that the Design Documentation shall form the basis for work performed by other contractors, subcontractors, Managed Vendors or Owner Suppliers in respect of the Facility and that any review or approval by Owner of any Design Documentation shall not relieve Contractor from any obligation or responsibility under this Agreement.

 

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3.6 Development of Project Plans .

(a) Site Control and Access Plan . Contractor shall comply with, implement and enforce the Site Control and Access Plan as set forth in the Scope Book. For the avoidance of doubt, Owner shall have the ultimate authority with respect to the contents of the Site Control and Access Plan and may update the Site Control and Access Plan from time to time.

(b) Environmental, Safety and Health Plan . Contractor shall comply with, implement and enforce the Environmental, Safety and Health Plan as set forth in the Scope Book. For the avoidance of doubt, Owner shall have the ultimate authority with respect to the contents of the Environmental, Safety and Health Plan and may update the Environmental, Safety and Health Plan from time to time.

(c) Quality Assurance Plan . Contractor shall comply with, implement and enforce the Quality Assurance Plan as set forth in the Scope Book. For the avoidance of doubt, Owner shall have the ultimate authority with respect to the contents of the Quality Assurance Plan and may update the Quality Assurance Plan from time to time.

3.7 Intentionally Omitted .

3.8 Facility Manuals; Training . In connection with the Construction Management Services, Contractor shall review and assist Owner in collecting the manuals prepared by Managed Vendors in the manner set forth in Part I of the Scope Book.

3.9 Periodic Reports and Meetings .

(a) Status Report . Within *** Days after the end of each calendar month, Contractor shall prepare and submit to Owner a written status report covering the previous calendar month, which report shall be prepared in a manner and format (hard copy and electronic) reasonably acceptable to Owner and shall include the information required to be included in such status report as described in Section 6.3 of Part I of the Scope Book (the “ Monthly Progress Report ”). In addition, Contractor shall prepare and deliver to Owner such engineering, procurement, material handling, cost, schedule, manpower, quality, safety, resource or other project reports relating to the Project as described in Section 6.6 of Part I of the Scope Book and at the frequency set forth therein.

(b) Progress Meetings . From the Effective Date until the Final Completion Date, Contractor shall attend and participate in regular meetings with Owner which shall occur monthly (or upon such other interval as the Parties agree in writing) for the purpose of discussing the status of the Services and the CM ISBL Work and anticipating and resolving any problems (“ Progress Meetings ”). The Progress Meetings may also include, at the request of Owner, Managed Vendors, GE, Owner Suppliers, the Financial Institutions, Subcontractors, consultants and other Persons. Contractor shall prepare and promptly deliver to Owner written

 

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minutes of each meeting; provided , that the publication or distribution of such minutes shall not constitute a permitted basis for providing notice, or otherwise asserting claims, under this Agreement by any Party. No implication whatsoever shall be drawn as a consequence of a failure by any Party to comment on or object to any minutes prepared or distributed by Contractor. Unless otherwise mutually agreed, Contractor’s Project Manager shall attend all Progress Meetings after Contractor mobilizes to the Site. *** In addition to the above monthly Progress Meetings and unless excused by Owner, Contractor and Owner shall hold regularly scheduled (but not less frequently than weekly during construction) status or scheduling meetings as requested by Owner.

3.10 Compliance with Laws . Contractor shall perform all Services in conformance with applicable Law. Notwithstanding anything to the contrary contained herein, Contractor shall not be required to take any action or perform any Services hereunder that would result in the violation of any applicable Laws, including U.S. anti-boycott Laws, and applicable Laws pertaining to export control and sanctions. If not otherwise exempted by Title 48 and to the extent applicable, Contractor shall adopt and utilize a subcontracting plan that complies with 48 C.F.R. 52-219-9 for Small Diverse Suppliers (“ SDS ”). Contractor shall: (i) use all commercially reasonable efforts to utilize SDS (and Large Diverse Suppliers); and (ii) provide Owner a quarterly status report in a format reasonably acceptable to Owner. Contractor shall enter such report on Owner’s website at www.duke-energy.com/suppliers/supplier-diversity.asp. Owner, its designated auditors and any applicable Government Authority shall have the right of access during normal business hours to inspect Contractor’s records related to the Project as they relate to SDS and compliance with this Section.

3.11 Owner Office Space . Contractor shall provide Owner with five offices and six cubicles in Contractor’s Houston Office and two cubicles in Contractor’s office located in Frederick, Maryland and such additional space as reasonably requested by Owner. *** To the extent any additional office space is requested by Owner and there are issues with respect to the scope of such request or availability of office space, the Parties will discuss the allocation of such office space and/or invoicing for such office space.

3.12 Emergencies . In the event of any emergency endangering life or property, Contractor shall take, or direct any Persons under Contractor’s control to take, all actions as may be reasonable and necessary to prevent, avoid or mitigate injury, damage or loss and shall immediately report each such emergency, and Contractor’s responses thereto, to Owner’s Project General Manager and shall provide Owner a written report of such emergency, and Contractor’s responses thereto, within twenty-four (24) hours after the occurrence of such emergency.

3.13 Signage . Neither Contractor nor its Subcontractors shall display, install, erect or maintain any advertising or other signage at the Site without Owner’s prior written approval, other than signs and notices required by applicable Laws, related safety or work rules, Site identification, or used to solicit employees for the performance of the Services.

 

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3.14 Acknowledgement of Scope of Services . Contractor and Owner hereby acknowledge that the Services are only a portion of the work required for the completion of the entire Project and that the successful and timely completion of the Project in accordance with the Project Schedule will require the good faith, prompt and courteous coordination and collaboration among many contractors, subcontractors and other Persons, including Contractor, Managed Vendors, GE, Owner Suppliers, Owner and Owner’s other contractors. Contractor agrees to provide such good faith, prompt and courteous coordination and collaboration on its own behalf and to assist Owner, upon request, in such other activities as may be required for the successful and timely completion of the Project, including assistance in obtaining any Governmental Approvals necessary for the operation, maintenance, use and ownership of the Facility. Owner shall use reasonable efforts to require Owner’s other contractors to coordinate, collaborate and cooperate with Contractor in a manner designed to achieve and maintain a schedule and sequence that will accommodate the interest of all parties so as not to unreasonably disrupt and interfere with their respective work.

3.15 Use of Existing Owner Property . Circumstances may arise where Contractor requests Owner to make available to Contractor certain of Owner’s equipment or facilities for the performance of Contractor’s Services the use of which is not provided for in this Agreement. Upon such request, Owner shall use commercially reasonable efforts to provide Contractor with the use of such equipment or facilities; provided, that the use of such equipment or facilities shall not unreasonably disrupt or interfere with the work of other contractors, subcontractors and other Persons, including Managed Vendors, GE, Owner Suppliers, Owner and Owner’s other contractors. Contractor shall be responsible for reasonably inspecting such equipment to assure itself of the safety of such equipment before use and shall return such equipment to Owner in the condition which it was received, except for reasonable wear and tear. Contractor shall inspect such equipment before Contractor’s use and upon its return to Owner. Upon return, Owner may also inspect such equipment to substantiate whether or not any part of the equipment used by Contractor has been damaged in any way as a result of its use by Contractor. If Owner is required to expend amounts (a) to repair any uninsured damage to its equipment or (b) to pay any deductible required to be paid for any insured damage, in each case, resulting from Contractor’s use of such equipment or facilities (ordinary wear and tear excepted), ***.

 

4.	CONTRACTOR PERSONNEL

4.1 Contractor’s Personnel . Contractor shall comply in all respects with all applicable labor, employment and immigration Laws that may impact Contractor’s Services under this Agreement, including the Immigration Reform and Control Act of 1986 and Form I-9 requirements. Without limiting the generality of the foregoing, Contractor shall perform all required employment eligibility and verification checks and maintain all required employment records for its employees that will be performing Services and Shared Services and for all Borrowed Employees provided by Contractor. Contractor acknowledges and agrees that it is responsible for conducting adequate screening of its employees and agents prior to assigning any such Person to perform any Service. By providing an employee or agent under this Agreement, Contractor warrants and represents that it has completed the Screening Measures (as defined in Section 5.1 below) with respect to such Person and that such Screening Measures did not reveal any information that adversely affects such Person’s

 

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suitability for assignment by Contractor to perform the Service. Owner, in its sole discretion, shall have the option of barring from the Site any person whom Owner determines is not fit or qualified to perform the Service, or who violates applicable requirements hereunder. In all circumstances, Contractor shall ensure that the substance and manner of any and all Screening Measures performed by Contractor pursuant to this Section conform fully to applicable Law. Contractor shall advise and instruct the Persons assigned to the Site by Contractor to comply with all applicable office and field rules, regulations and safety procedures. At all times, a person assigned by Contractor to perform Services shall remain an employee of Contractor.

4.2 Staffing Plan . Contractor shall implement and maintain the Staffing Plan in connection with the provision of the Services. Owner may incorporate changes to the Contractor staffing scope in the Staffing Plan with the consent of Contractor (such consent not to be unreasonably withheld). Owner shall have the right to make any other changes to such organization chart in its sole discretion. Contractor shall employ a sufficient number of qualified Persons, who shall be licensed if required by applicable Laws, so that Contractor may complete the Services and Contractor’s other obligations under this Agreement in an efficient, prompt, economical and professional manner in accordance with the Staffing Plan and the Project Schedule.

4.3 Supervision and Discipline . Contractor shall supervise, coordinate and direct the Services in accordance with Prudent Industry Practices. Contractor shall enforce discipline and good order among all Persons carrying out the Services and shall use commercially reasonable efforts to enforce discipline and good order among all Persons performing CM ISBL Work at the Site, in each case in accordance with the Project Job Rules and Regulations. Contractor shall at all times take all necessary precautions to prevent any unlawful, unsafe or disorderly conduct by or among Persons performing the Services. Contractor shall only permit the employment of Persons who are fit on each Day they perform the Services and who are qualified and skilled in the tasks assigned to them. Contractor shall retain responsibility for the performance, conduct and compliance of each of its employees and agents assigned to perform the Services at the Site. Owner shall have the right to bar from the Site any Person. Upon request of Owner in its discretion, Contractor shall immediately remove those Persons to whom Owner objects from the Site and shall not allow the further performance of the Services by those Persons (if any such Person is a “key personnel” as described in Section 4.4 , such discretion exercised by Owner must be reasonable). In addition, in the event that Contractor learns of any such misconduct, incompetence or negligence independent of Owner’s objection, Contractor shall remove such Persons from the Site, shall not allow any further performance of the Services by such Persons and shall promptly notify Owner of such misconduct, incompetence or negligence and the actions taken by Contractor as a result thereof.

4.4 Contractor’s Key Personnel . Exhibit F contains a list of the name and title of each of Contractor’s key personnel who shall be responsible for the performance of Contractor’s obligations under this Agreement. The key personnel set forth on Exhibit F includes a designation of Contractor’s Project Manager and Contractor’s Site Representative. Replacement of any of the key personnel listed in Exhibit F , other than due to death, termination in employment or a leave of absence permitted as required by applicable Law, shall be subject to the prior written approval of Owner, which approval Owner shall not

 

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unreasonably withhold, and any replacement must be qualified for the applicable position as mutually agreed between the Parties (such Owner acknowledgement of qualifications not to be unreasonably withheld). Contractor shall remove and replace any such key personnel at Owner’s reasonable discretion. Contractor’s Project Manager shall act as Contractor’s liaison with Owner and shall have the authority (a) to administer this Agreement on behalf of Contractor, (b) to perform the responsibilities of Contractor under this Agreement, and (c) to bind Contractor as to the day-to-day project management operations under the Agreement, in each case, subject to the terms and conditions set forth in the Communication and Management Protocol. Contractor’s Site Representative or other Contractor supervisory personnel shall be present at the Site at all times when the Services or CM ISBL Work are being performed at the Site.

4.5 Drug and Alcohol Testing . Neither Contractor nor its Subcontractors shall in any way use, possess, or be under the influence of illegal drugs or controlled substances or consume or be under the influence of alcoholic beverages during the performance of the Services. Any person (whether employed or retained by Contractor or any Subcontractor or otherwise) under the influence, or in possession of, alcohol, any illegal drug, or any controlled substance, will be removed from the Site in accordance with the Environmental, Safety and Health Plan and, subject to Owner’s fitness for duty program requirements, shall be prevented from performing any future Services at the Site or elsewhere related to the Project. Upon request, and to the extent permitted by applicable Law, Contractor will furnish Owner copies of the records of employee drug and alcohol test results required to be kept by applicable Law. Contractor will indemnify and hold harmless Owner from any and all liability for any claims made by a Contractor or Subcontractor employee resulting from removal from the Site by Contractor or by Owner in the event of an emergency or other exigent circumstances as provided in this Article.

4.6 Training of Employees . Contractor represents that all Contractor and Subcontractor personnel have received all necessary training required to perform the Services in accordance with applicable Laws.

4.7 Substitution . Subject to Section 4.4 , Contractor reserves the right to change any of its personnel performing Services. In such event, Contractor shall provide replacement personnel meeting the requisite qualifications of the position to be filled and who have substantially similar capabilities.

4.8 Employer Responsibilities . For so long as any Person is assigned by a Party to perform Services at the Site, the Party assigning the Person and such Person shall act as an independent contractor and not as an agent or employee of the other Party. Neither Party intends to create a co-employment relationship for the Persons working at the Site. Each Party shall comply, at its expense, with all applicable provisions of workers’ compensation Laws, unemployment compensation Laws, federal social securities Laws, the Fair Labor Standards Act and all other applicable federal, state and local Laws relating to terms and conditions of employment required to be fulfilled by employers with respect to any of its own employees.

 

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5.	BORROWED EMPLOYEES

5.1 Assignment of Borrowed Employees . Each of Contractor and Owner shall assign certain of its employees (the “ Borrowed Employees ”) to the other Party to perform certain job duties required for completion of the entire Project, including the job duties identified as Shared Services in the Staffing Plan and the Communication and Management Protocol and the job duties necessary to complete portions of the CM ISBL Work (collectively, the “ Assigned Job Duties ”). By assigning a Borrowed Employee, each Party represents that it has completed the Screening Measures (as defined below) with respect to such Borrowed Employee and that such Screening Measures did not reveal any information that adversely affects such Borrowed Employee’s suitability for employment by such Party. As used in this Section, the term “ Screening Measures ” means, with respect to either Party, such screening and eligibility measures as required by such Party’s generally applicable human resources policies and procedures (the “ HR Policies ”) and applicable Law. Each Party shall maintain all records with respect to each of its Borrowed Employees as required of an employer by applicable Law. At all times that a person is serving as a Borrowed Employee, such Borrowed Employee shall remain an employee of the Party supplying such Borrowed Employee subject to all of its HR Policies. Promptly after execution of this Agreement, each Party shall designate in writing a liaison to be responsible for addressing performance, conduct, and compliance issues (“ HR Issues ”) relating to the Borrowed Employees. Each Party may change its designated liaison from time to time upon ten (10) Days prior written notice to the other Party.

5.2 Qualifications . Each Party shall provide curriculum vitae for each person such Party proposes to be a Borrowed Employee, which curriculum vitae shall include a description of the role of such person in his or her recent projects. Each Party shall permit the other Party the opportunity to interview each such person. Each Party covenants that its Borrowed Employees shall have such credentials represented in writing by it to the other Party. Contractor shall reassign any such Borrowed Employee to a project other than the Project at Owner’s request exercised in its reasonable discretion. Contractor shall not cease providing Owner with the services of any of its Borrowed Employees without the prior written approval of Owner, provided that Contractor may cease providing Owner with the services of a Borrowed Employee without the prior approval of the Owner (a) if such Borrowed Employee dies, resigns, transfers in accordance with the HR Policies, goes on leave of absence in accordance with the HR Policies (in which case Contractor shall provide Owner notice of all relevant dates regarding such leave of absence), or is terminated for cause, as defined in the HR Policies, (b) if such Borrowed Employee is not expected (by Owner) to perform any services in connection with, or otherwise relating to, the start-up of the Facility (including any scheduling or planning), upon the Mechanical Completion Date or such later date upon which the Parties may mutually agree or (c) if such Borrowed Employee is expected (by Owner) to perform services in connection with, or otherwise relating to, the start-up of the Facility (including any scheduling or planning), upon the Final Completion Date. If Contractor ceases to provide a Borrowed Employee as permitted herein, Contractor shall promptly replace such Borrowed Employee with another Borrowed Employee meeting the requirements hereof. Owner may reassign any of its Borrowed Employees.

 

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5.3 Assigned Job Duties . Each Party shall determine the procedures to be followed by the Borrowed Employees assigned to such Party with respect to their Assigned Job Duties; provided, however, that such Party shall not direct such Borrowed Employees to perform any duties other than the Assigned Job Duties or to perform the Assigned Job Duties in a manner that would violate any of the other Party’s HR Policies known to such Party. Each Party represents to the other Party that nothing in its HR Policies prevent any of its Borrowed Employees from performing his or her Assigned Job Duties. The Borrowed Employees assigned to each Party shall be advised by such Party of, and the assigning Party shall instruct such Borrowed Employees to comply with, all applicable office and field rules, regulations and safety procedures. To the extent permitted by applicable Law, each Party assigning Borrowed Employees shall provide the other Party with such information pertaining to such Borrowed Employees in connection with rendering the Assigned Job Duties as the other Party may request and which is reasonably necessary to the other Party’s direction and oversight of such Borrowed Employees and the performance of the Assigned Job Duties. Each Party shall require each of its Borrowed Employees to obtain and maintain all licenses (including professional engineering licenses) and work permits, if any, required in connection with his or her performance of the Assigned Job Duties.

5.4 Responsibility for Work . Each Party shall be solely responsible for the effectiveness or technical, economic or environmental feasibility of any method, technique, or process implemented by such Party or third parties resulting from any Borrowed Employee furnished to it under this Section. Accordingly, neither Party assigning Borrowed Employees shall have any liability to the other Party for loss or damage arising out of or resulting from the performance by such Borrowed Employees of the Assigned Job Duties, including loss of or damage to property of the other Party, and the other Party hereby releases and agrees to indemnify, hold harmless and defend the Party assigning Borrowed Employees and each such Borrowed Employee from and against any and all claims, demands, losses, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) for injuries to persons (including death) and for damage to property, including property of the other Party or others, arising out of the performance by such Borrowed Employee of his or her Assigned Job Duties, provided that such Borrowed Employee had the credentials represented in writing by the Party assigning Borrowed Employees to the other Party.

5.5 Employer Responsibilities . For so long as any person serves as a Borrowed Employee, the Party assigning such Borrowed Employee and such Borrowed Employee shall act as an independent contractor and not as an agent or employee of the other Party. Neither Party intends to create a co-employment relationship for the Borrowed Employees. Each Party shall comply, at its expense, with all applicable provisions of workers’ compensation Laws, unemployment compensation Laws, federal social security Law, the Fair Labor Standards Act, and all other applicable federal, state, and local Laws relating to terms and conditions of employment required to be fulfilled by employers with respect to any of its Borrowed Employee. Without limiting the generality of the foregoing and for so long as any person serves as a Borrowed Employee of a Party, such Party shall:

(a) pay such Borrowed Employee at such compensation levels (including any overtime pay, if applicable), and provide employee benefits, as it provided such

 

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person prior to becoming a Borrowed Employee, subject to periodic reviews and adjustments in the ordinary course of business;

(b) make wage payments to such Borrowed Employee through its payroll systems and on the same basis as such compensation is provided to any of its other employees;

(c) make all applicable payroll withholding deductions for such Borrowed Employee, including Federal and State income tax, social security, unemployment and disability insurance (if applicable), and promptly remit such withholding deductions and taxes due to all taxing authorities;

(d) provide each such Borrowed Employee, on the same basis as its other employees, with access to an electronic pay stub each pay day and a W-2 form at the end of each year during which such person is a Borrowed Employee;

(e) inform such Borrowed Employee of changes in benefits in the same manner such information is provided to its other employees and enable such Borrowed Employee to enroll in new benefit programs;

(f) have sole responsibility for administering all of its retirement plan(s), health and welfare plan(s) and all other non-statutory employee benefit plans and programs for which such Borrowed Employee is eligible to participate; and

(g) maintain workers’ compensation insurance and keep such insurance in full force and effect at all times with respect to such Borrowed Employee and in compliance with applicable Law.

For the avoidance of doubt, the Parties acknowledge and agree that no Borrowed Employee shall be considered an employee of the Party to whom such Borrowed Employee is assigned for any purposes, including HR Issues, discipline, termination, retirement benefits, workers’ compensation or employer’s liability insurance, all of which shall remain the responsibility of the Party assigning such Borrowed Employee. Each Party assigning a Borrowed Employee hereby releases and agrees to indemnify, hold harmless and defend the other Party from and against any and all claims, demands, losses, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) arising out of the failure of the assigning Party to comply with its obligations in this Section 5.5 . Each Party shall maintain payroll and other wage, benefit and tax records related to its Borrowed Employees in accordance with generally accepted accounting practices and all applicable Laws. Upon written request of each Party and to the extent permitted by applicable Law, the other Party shall make available to the requesting Party its records relating to the other Party’s obligations in this Section 5.5 and its compliance with such obligations, and shall provide such certificates and copies of such receipts or vouchers, as the requesting Party may reasonably require to assure itself that the other Party has complied with its obligations in this Section 5.5 .

5.6 Cooperation . Each Party will reasonably cooperate with the other Party in the defense of any and all claims, including litigation and administrative claims, against such

 

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other Party brought by any Borrowed Employee, unless and then only to the extent that the Parties have an actual conflict of interest with respect to such matter. Such cooperation may include providing the other Party with access to claim information, facilities, witnesses and other information and documents as reasonably requested.

5.7 No Third Party Rights . No provision of this Agreement shall create any third party rights in any Borrowed Employee (including any beneficiary or dependent thereof).

 

6.	PROJECT MANAGEMENT

6.1 Owner’s Representative . Owner shall appoint Owner’s Project General Manager with whom Contractor may consult at all reasonable times, and whose instructions, requests and decisions shall be binding upon Owner as to all matters pertaining to this Agreement and the performance of the Parties under this Agreement; provided , that no amendment or modification of this Agreement shall be effected except by an Amendment, and no Change shall be effected except as provided in Article 9 .

6.2 Project Management; Communication and Management Protocol . The Parties hereby acknowledge and agree that Owner shall have the right and authority to direct all matters relating to the Project, subject, with respect to the CM ISBL Work, to the Communication and Management Protocol. Without limiting the generality of the foregoing, Contractor’s Project Manager shall report to Owner’s Project General Manager. The Parties shall interface, communicate, coordinate and collaborate with one another in the manner set forth in the Communication and Management Protocol in order to achieve the successful and timely completion of the Project.

6.3 Steering Committee . The Parties shall establish a steering committee (the “ Steering Committee ”) consisting of Contractor’s Steering Committee Members and two (2) executives designated by Owner. The purpose of the Steering Committee shall be to provide guidance with respect to the Project and to ensure efficient project management in accordance with the terms and conditions set forth herein. The members of the Steering Committee shall meet at least once each calendar quarter (and at such other times reasonably requested by Owner) at such times and locations as Owner shall reasonably request for the purpose of discussing the status of the Project and resolving any existing or potential problems or issues with respect to the Project. At the request of Owner, executives from GE may also participate in such Steering Committee.

6.4 GE Change Review Board . At the request of Owner, Contractor’s Project Manager shall participate in any meetings of the GE Change Review Board to discuss the impact to the Project of any changes in the “Process Design Package” supplied by GE or the scope of the GE Equipment Contract, including the means to ameliorate any such impact.

6.5 Access; Contractor’s Office Space . From the Effective Date until the Substantial Completion Date, Owner shall provide Contractor unrestricted right of access to such portion of the Site as Contractor may reasonably require to perform the Services at the Site and for Contractor’s office space and employee parking. Owner (and its representatives)

 

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shall at all times have access to the Site. Owner shall provide Contractor with office space at the Site as described in Part I of the Scope Book.

6.6 Estimate . Upon request of Owner, Contractor shall assist Owner in preparing a budget for the Project, in detail reasonably satisfactory to Owner, based upon the information contained in the Estimate. At the request of Owner from time to time, Contractor shall temporarily relocate one of its employees to Owner’s Plainfield Office with a hard copy and an accessible, electronic copy of the Estimate. Such relocated employee shall remain at Owner’s Plainfield Office for the length of time requested by Owner; provided, that such employee shall not be required to remain at Owner’s Plainfield Office beyond the Final Completion Date. Alternatively, at the request of Owner from time to time, Contractor shall send an employee to Owner’s Plainfield Office with a hard copy and an accessible, electronic copy of the Estimate. Owner shall bear all *** incurred by Contractor in relocating such employee or sending such employee to Owner’s Plainfield Office. Contractor shall make available to Owner at Contractor’s Houston Office and at the Site, during normal business hours upon Owner’s request from time to time, a hard copy and an accessible, electronic copy of the Estimate for Owner’s review and inspection.

 

7.	PROJECT SCHEDULE

7.1 Schedule Compliance; Updates . Contractor shall perform its obligations under this Agreement and shall direct the Managed Vendors to perform work in relation to the CM ISBL Work in a manner designed to comply with the Project Schedule. Contractor shall (a) provide the Contractor EP Schedule to Owner for uploading into the Project Schedule and the Contractor EP Schedule shall be updated from time to time and (b) cooperate with Owner and participate in developing and updating the Project Schedule, including, without limitation, assisting Owner in collecting the information obtained from Managed Vendors that Owner will use to update the Project Schedule, in each case, in the manner set forth in Section 6 of Part I of the Scope Book and in the Communication and Management Protocol. For the avoidance of doubt, this Section 7.1 shall not limit the Construction Management Services, including Contractor’s obligation to coordinate the activities of Managed Vendors.

7.2 ***

 

8.	COMPENSATION AND PAYMENT

8.1 Contract Price . In consideration of the performance by Contractor of the Services and its other obligations hereunder, Owner shall pay to Contractor the Contract Price in accordance with the terms and conditions set forth herein.

8.2 ***

8.3 ***

 

(a)

***

 

(i)

***

 

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(ii)

***

 

(iii)

***

 

(iv)

***

 

(b)

***

8.4 Invoicing and Payments .

(a) If any *** is deficient, Contractor shall be required to resubmit that *** in proper form; provided , however , that Owner shall pay any portion of it that is not deficient or subject to dispute. Owner shall review each *** and shall endeavor to make exceptions, if any, by providing Contractor with written notice by the earlier of (i) such date the *** is paid by Owner or (ii) *** Days after Owner receives the *** and such substantiating documentation and materials as Owner may have reasonably required. Notwithstanding anything in this Article to the contrary, the failure of Owner to raise an exception shall not preclude Owner from subsequently seeking, and Contractor from paying, a refund of any amounts to which Contractor was not entitled under this Agreement, and Owner may, by any payment pursuant to Section 8.4(b) below, make any correction or modification that should properly be made to any amount previously considered due.

(b) Owner shall pay Contractor, within *** Days of receipt of the *** and such substantiating documentation and materials as Owner may have reasonably required, in U.S. dollars, the undisputed amounts designated in such ***, plus any additions and less any deductions which may have become due under this Agreement, as reflected in the ***. Any amount of a *** that Owner disputes shall be resolved promptly in accordance with Article 23 ; provided , that, if the amount in dispute equals or exceeds ***, the Parties shall initiate the dispute resolution procedures set forth in Article 23 within *** Days following the determination of the existence of a dispute. Once the dispute is resolved, Owner or Contractor, as applicable, shall pay any amount owing promptly after the date of the final resolution. If for any reason Owner fails to pay Contractor for all sums due and owing (other than sums that are the subject of a good faith dispute or permitted to be withheld pursuant to this Section 8.4(b) ) within *** Days after receipt of a substantiated *** Payment Invoice which complies with the requirements of this Article, interest shall thereafter accrue on such sums due and owing at the *** until paid.

8.5 ***

 

(a)

***

 

(b)

***

8.6 Final Payment . Following achievement of Final Completion, Contractor shall submit to Owner an invoice for the final payment and other payments due under this

 

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Agreement (the “ Final Payment Invoice ”) which shall contain *** (d) a determination of all other remaining amounts due to it pursuant to this Agreement and (e) all supporting documentation reasonably requested by Owner. When submitting the Final Payment Invoice, Contractor shall submit a written discharge, in form and substance reasonably satisfactory to Owner, confirming that the total of the applicable Final Payment Invoice represents full and final settlement of all monies due to Contractor under this Agreement. The procedures set forth in Section 8.4 (including application of interest for late payments) shall be followed for payment of the applicable Final Payment Invoice, and Owner shall be entitled to offset against any *** or Final Payment Invoice any amounts owing by Contractor to Owner under this Agreement.

8.7 Certification by Contractor . In each *** and in the Final Payment Invoice, Contractor shall certify as follows:

“There are no known Liens that are outstanding at the date of this invoice and arose by or through Contractor, any Subcontractor or any Person claiming through Contractor or any Subcontractor for which Contractor has not provided a bond or other assurance of payment; all amounts that are due and payable to any third party (including Subcontractors) with respect to the Services as of the date of this invoice have been paid or are included in the amount requested in this invoice, and, except for those bills not paid but so included and amounts disputed between Owner and Contractor, there is no known basis for a Lien to be filed. Contractor hereby waives and releases, to the extent of the receipt of payment requested in this invoice, any right to any Lien with respect to payment for such portion of the Services included in this invoice.”

8.8 No Acceptance by Payment . Owner’s payment of any invoice, including a Final Payment Invoice, does not constitute approval or acceptance of any item or cost in that invoice nor shall be construed to relieve Contractor of any of its obligations under this Agreement.

 

9.	CHANGE ORDERS

9.1 Change Requests . Without invalidating this Agreement, Owner may require Contractor to perform hereunder services not included in the Services, remove services included in the Services or revise services included in the Services (each, a “ Change ”); provided, that, without the consent of Contractor (such consent not to be unreasonably withheld), Owner may not direct a Change that requires Contractor to perform services (a) *** (b) *** or (c) *** (each, a “ Non-Directed Change ”).

9.2 Change Proposals . If Owner desires to make a Change, it shall submit a written proposal to Contractor describing the Change requested. Contractor shall promptly review Owner’s proposal and submit to Owner a good faith estimate of the cost to develop a Change Order for such Change, such development costs to be determined on a *** basis. If the estimated costs to develop the Change Order are reasonably acceptable to Owner, Owner shall promptly provide notice thereof to Contractor in writing. Upon receipt of such notice,

 

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Contractor’s Project Manager shall promptly notify Owner in writing, as soon as practicable, either by giving reasons why Contractor, either directly or indirectly through a Subcontractor, could not effect such Change (if this is the case) or by submitting the proposed contents for a Change Order, which shall include in reasonable detail:

(a) the effect and impact, if any, that the Change would have, in Contractor’s reasonable judgment, on the Services, the ***, the Baseline Contractor Schedule, any warranties herein and the operation or maintenance of the Facility,

(b) Contractor’s proposal for any necessary modifications to Services, the ***, the Baseline Contractor Schedule or any warranties herein, and

(c) Contractor’s proposal for any necessary modifications to any other provisions of this Agreement, including the Scope Book and the Communication and Management Protocol.

Contractor shall provide Owner such supporting documentation for the foregoing as Owner may reasonably request. Owner shall, as soon as practicable after receipt of such submittal and supporting documentation, respond with any comments or questions. Contractor shall not delay any Services while awaiting a response. If Owner responds with comments or questions, Contractor shall endeavor to address such comments or answer such questions as soon as practicable. If Owner decides not to proceed with a Change (other than a Change requested by Contractor pursuant to Section 9.4 but not required to be made by this Agreement), it shall pay Contractor *** incurred in developing the estimates and other information regarding the potential Change.

9.3 Change Orders . If Owner wishes to proceed with the Change, Owner shall issue a written order to Contractor authorizing the Change and setting forth any revisions to this Agreement necessary to effect the Change (the “ Change Order ”). If Contractor refuses to accept such necessary revisions in the Change Order, Contractor shall provide Owner written notice thereof within *** Days of its receipt of the Change Order, describing in reasonable detail its objections to the Change Order. Owner shall be entitled, despite such notice from Contractor, to require Contractor to continue to perform its obligations hereunder as would be modified by the Change Order, provided that, if Owner requires Contractor to so perform and Contractor has provided Owner timely notice objecting to such Change Order, (a) the Parties shall resolve the Dispute over the necessary revisions in accordance with the dispute resolution procedures set forth in Article 23 and (b) if the Change requires additional Services, Owner shall continue to pay Contractor *** incurred in performing the Services ordered in the Change Order in accordance with Article 8 , subject to resolution of the Dispute pursuant to Article 23 . For the avoidance of doubt, Owner may issue a Change Order in order to effect a Change prior to completion of the process described in Section 9.2 and, if the Parties dispute whether any instructions by Owner constitute a Change or are permitted by the terms of this Agreement without the necessity of a Change, Contractor shall comply with such instructions, but shall be entitled to reserve its right to dispute that a Change has occurred.

9.4 Contractor Proposed Changes . Contractor shall have the right to request a Change (in which event it shall provide Owner the information required by Section 9.2 ) but

 

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shall have no right to require a Change that is not required by this Agreement without the prior written consent of Owner. If Contractor determines that a Change is required by this Agreement, Contractor shall give Owner written notice within *** Days thereof.

9.5 ***

 

10.	FORCE MAJEURE

10.1 Event of Force Majeure . The performance by Owner or Contractor under this Agreement shall be excused to the extent that such Party’s performance is actually delayed or prevented by reason of an event of Force Majeure. If a Party is or will be reasonably prevented from performing its obligations under this Agreement by an event of Force Majeure, such Party shall use all commercially reasonable efforts to remove the cause affecting such non-performance, to minimize any delay in or impact upon the performance of this Agreement or any damage to or other impact upon the Owner Equipment or the GE Equipment and contain costs and expenses arising from such Force Majeure event or its effects; provided, that Owner shall have the right to direct the efforts to be expended by Contractor in removing the cause affecting such non-performance and minimizing the impact thereof.

10.2 Notice . If a Party is or will be reasonably prevented from performing its obligations under this Agreement by an event of Force Majeure, then it shall notify the other Party of the obligations, the performance of which is or will be prevented, and the nature and cause of the event in writing upon the earlier of (a) *** Days after the notifying Party or its Project Manager becomes aware, through the exercise of reasonable dilig