COST PLUS INCENTIVE CONSTRUCTION CONTRACT

Construction Agreement

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HOKU SCIENTIFIC INC | HOKU MATERIALS, INC | JH KELLY LLC

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Title: COST PLUS INCENTIVE CONSTRUCTION CONTRACT
Governing Law: New York Date: 11/13/2007
Industry: ELECTR Law Firm: JH Kelly LLC Sector: Technology

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Cost Plus Incentive Construction Contract

[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

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Exhibit 10.52

COST PLUS INCENTIVE CONSTRUCTION CONTRACT

THIS COST PLUS INCENTIVE CONSTRUCTION CONTRACT (this “Agreement”) is entered into as of August 8, 2007 (“Effective Date”), by and between HOKU MATERIALS, INC., a Delaware corporation with its principal office located at 1 Hoku Way, Pocatello, Idaho 83204 (“Owner”), and JH KELLY LLC, a Washington limited liability company with its principal office located at 821 3rd Avenue, Longview, WA 98632 (“Contractor”). Owner and Contractor are each referred to herein as a “Party” or together as the “Parties”.

RECITALS

WHEREAS, Owner is seeking a general contractor to provide construction services for Owner’s polysilicon production and processing plant to be located in Pocatello, Idaho as more fully described on the Statement of Work attached hereto as Exhibit A (the “Project”);

WHEREAS, Contractor is a licensed general contractor and is able and desires to provide to Owner those services to construct the Project as set forth herein; and

WHEREAS, in connection with the provision of those services, Owner and Contractor desire to enter into this Agreement to provide for the mutual benefits to be realized by the parties as a result of this Agreement and the specific considerations, terms and conditions set forth herein:

NOW, THEREFORE, for and in consideration of the premises and the mutual promises and covenants contained herein, the parties hereto agree as follows:

AGREEMENT

1	DEFINITIONS

For purposes of this Agreement, the following capitalized terms shall have the meanings set forth below.

1.1 “Budget Incentive” means a fee earned by Contractor for meeting or exceeding a predetermined Budget goal.

1.2 “Change” means an addition to, modification of, substitution for, or deletion of any work, manner of performance, or other obligation required by the Contract Documents and estimated by Owner and Contractor to affect the time required for performance of the Work under the Statement of Work or to increase or decrease the cost of performing the Work.

1.3 “Claim” means a demand or assertion by a party to this Agreement seeking, as a matter of right, adjustment to, interpretation of, or relief from the terms and conditions of the Contract Documents; payment of money; extension of time; or other relief with respect to the Contract Documents. The term “Claim” also includes other disputes and matters between Owner and Contractor arising out of or relating to the Agreement. Claims must be initiated by written notice. The responsibility to substantiate a Claim shall rest with the party making the Claim. Pending final resolution of a Claim, Contractor shall proceed diligently with performance of the Work under this Agreement and Owner shall continue to make undisputed payments in accordance with the Contract Documents.


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1.4 “Construction Documents” mean the documents required by Contractor to construct the facility including but not limited to; scope of work, technical specifications, engineered drawings and Project Schedule.

1.5 “Contract Documents” means of this Agreement and all conditions of the contract (general, supplementary and other conditions), modifications, exhibits, drawings, specifications, addenda or other documents listed in this Agreement. Unless specifically enumerated in the Agreement, the Contract Documents do not include other documents such as bidding requirements (advertisement or invitation to bid, instructions to bidders, sample forms, Contractor’s bid or portions of addenda relating to bidding requirements). The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all.

1.6 “Contract Time” means the number of consecutive calendar Days, including authorized adjustments, calculated starting from the Effective Date to the agreed upon dates set forth in the Project Schedule.

1.7 “Cost of the Work” means the reimbursable costs specified in Exhibit C incurred by Contractor in the proper performance of Work to complete the Project under this Agreement.

1.8 “Day” means a calendar Day unless otherwise specifically noted in the Agreement.

1.9 “Drawings” means the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams, including the drawings attached as Appendix 1 to Exhibit A of this Agreement.

1.10 “Extra Work” means an item of work or a manner of performance that results from a Change, that is outside the scope of the Work as described in the Statement of Work and which is estimated by Owner and Contractor to affect the time required for performance of the Work or to increase or decrease the cost of performing the Work.

1.11 “Final Invoice” is the invoice submitted by Contractor to Owner for all final cost items including but not limited to; subcontractor invoices, demobilization of site, completion of punch list items and all other cost items and/or invoice reconciliations.

1.12 “Fee” means the fee charged by Contractor for constructing the facility for Owner, which is calculated as a percentage of Contractor’s Cost of the Work as set forth on Exhibit C to this Agreement.

1.13 “Hazardous Substance” means any and all chemicals, constituents, contaminants, pollutants, materials, and wastes and any other carcinogenic, corrosive, ignitable, radioactive, reactive, toxic or otherwise hazardous substances or mixtures (whether solids, liquids, gases), or any substances now or at any time subject to regulation, control, remediation or otherwise addressed as a hazardous substance under the applicable laws of the Site, including those laws, regulations and policies relating to the discharge, emission, spill, release, or threatened release into the environment or relating to the disposal, distribution, manufacture, processing, storage, transport, treatment, transport, or other use of such substances.


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1.14 “Incentive Fee” means the Budget Incentive, the Schedule Incentive and/or the Safety Incentive, as applicable.

1.15 “Mechanical Completion” means, except for non-critical and punch list items, (i) all production equipment is substantially installed and checked for alignment, calibration, lubrication, rotation, and hydrostatic and/or pneumatic pressure integrity; (ii) the appropriate systems have been flushed and cleaned; and (iii) the Work is substantially ready to commence commissioning and start-up activities.

1.16 “Mechanical Completion Date” is defined in Section 11.2 of this Agreement.

1.17 “Modification” means (1) a written amendment to the Contract signed by both parties, (2) a Change order, (3) a construction change directive or (4) a written order for a minor change in the Work issued by or on behalf of Owner; any of which may result in the submittal of a Target Price Revision requesting additional monies and/or time.

1.18 “Person” means any natural or juridical Person, including, but not limited to, corporations, partnerships, joint ventures, and any other business association or organization.

1.19 “Preliminary Reactor Test Demonstration” means that two or more polysilicon deposition reactors at the Site are set-up such that they may be put into short term testing and operation to produce polysilicon (permanent connections, automatic controls, etc. are not required for this milestone) independent of the full facility.

1.20 “Safety Incentive” means a fee that may be earned by Contractor if it meets or exceeds the predetermined Safety goal as set forth in Section 9.2.2.3 of this Agreement.

1.21 “Schedule Incentive” means a fee that may be earned by Contractor if it meets or exceeds the predetermined Schedule goals as set forth in Section 9.2.2.2 of this Agreement.

1.22 “Site” means the property or premises of Owner where Work is to be performed by Contractor pursuant to this Agreement as described on Appendix 1 to Exhibit A of this Agreement.

1.23 “Specifications” means that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services.

1.24 “Statement of Work” means the statement describing the scope of the Work to be performed by Contractor to complete the Project, and is set forth on Exhibit A to this Agreement.

1.25 “Subcontractor” means any Person that has a contract with Contractor, regardless of tier, to perform any portion of the Work or to supply equipment, materials, supplies, labor and/or other goods and services in connection with the performance of the Work required of Contractor under this Agreement.

1.26 “Substantial Completion” shall be achieved when: (i) Mechanical Completion of the Work has been acknowledged by the Owner and engineer in writing; (ii) final lien waivers and releases and other documents or inspections reasonably required by Owner’s engineer or lender have been delivered; (iii) the Contractor has delivered the job books and as-built drawings; (iv) all the Contractor’s


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supplies, personnel and rubbish have been removed from the Site; and (v) all punch list items have been completed (or otherwise resolved by agreement of the Owner and the Contractor.

1.27 “Target Price Revision” means a written instrument signed by Owner and Contractor stating their agreement upon all of the following: (a) a change in the Work or authorizing Extra Work; (b) the amount of the adjustment, if any, in the Contract Price; and, (c) the extent of the adjustment, if any, in the Contract Time.

1.28 “Work” means the consulting, material procurement, inspection, maintenance, and construction services required by the Contract Documents; and includes all labor, equipment machinery, tools, materials, supplies, services, and testing necessary to fulfill Contractor’s obligations under the Contract Documents to complete the Project as set forth in the Statement of Work.


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2	SCOPE OF WORK AND PERFORMANCE OF SERVICES

2.1 The terms of this Agreement shall apply to Contractor’s performance of Work and/or presence on Owner’s property, unless expressly modified by a Change Order. Any modification of the terms of this Agreement by a Change Order shall only apply to Contractor’s performance of Work and/or presence on Owner’s property under that Change Order.

2.2 The basis of the Work is the construction by Contractor of the Project.

2.3 It is expressly agreed and understood by Contractor that any materials, supplies, or items of machinery, equipment, or tools provided by Contractor in the performance of the Work shall be so provided, pursuant only to the terms and conditions set forth in this Agreement. Any preprinted or handwritten terms and conditions or similar provisions attached to or appearing on the face or reverse side of, or attached to, Contractor’s order acknowledgments, delivery tickets, invoices, price lists, or other similar documents, are null and void and the terms and conditions of this Agreement (and the other applicable Contract Documents) shall control.

2.4 Owner and Contractor acknowledge that Work under this Agreement shall not include the handling, transportation, or removal of any Hazardous Substance from Owner’s property. Should the Work performed by Contractor require the handling, transportation, or removal of any such Hazardous Substance, Contractor shall immediately notify Owner’s Representative and Owner shall provide further instructions on how the Hazardous Substance shall be handled.

3	CERTAIN OBLIGATIONS OF CONTRACTOR

3.1 Project Manager. Contractor designates Pat Wilson as its representative (“Project Manager”) who is fully authorized to act on behalf of Contractor for the purpose of receiving instructions from Owner, receiving communications from Owner, requesting approvals required or permitted under this Agreement and otherwise representing Contractor. All notices, requests, approvals and other communications provided to Owner by the Project Manager shall be deemed to have been provided by Contractor and all notices, instructions, requests, approvals and other communications provided to the Project Manager by Owner shall be deemed to have been received by Contractor. Contractor may designate one or more successor Project Manager(s) by written notice to Owner from time to time.

3.2 Review and Execution.

3.2.1 Contractor represents that Contractor has visited the Site, and has correlated personal observations with requirements of the Contract Documents.

3.2.2 Before starting each portion of the Work, Contractor shall carefully study the Contract Documents relative to that portion of the Work, and may take field measurements of any existing conditions related to that portion of the Work, and observe any conditions at the Site affecting that portion of the Work if reasonable with regard to the scope of the Work.

3.2.3 Any design errors, omissions, or inconsistencies noted by Contractor shall be reported promptly to Owner.

3.2.4 If Contractor believes that additional cost or time is involved because of any design errors, omissions, or inconsistencies, Contractor shall submit a Target Price Revision requesting an


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adjustment to the Target Price and/or the Project Schedule. All Target Price Revisions will be submitted to Owner for review and approval.

3.3 Contractor shall provide supervision of all phases of the Work in accordance with sound construction practices and in compliance with all federal, state or local rules, regulations and ordinances applicable to the Work.

3.4 Contractor shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work.

3.5 Contractor shall be responsible to Owner for the acts and omissions of its employees, Subcontractors and their agents and employees. Except as otherwise provided herein, all Subcontractors will be bound to comply with the same standards, care, skill and diligence as Contractor in the performance of the Work. Owner shall have the right to request removal of any Contractor employee, Subcontractor, Subcontractor employee, or their agents who in Owner’s sole opinion, has engaged in improper conduct, is not performing in a satisfactory manner or is not qualified to perform assigned work, including, as applicable, the Project Manager. Contractor shall, within ten (10) business days take corrective action to address Owner’s request (through disciplinary action, reassignment, training or other commercially reasonable means) to Owner’s reasonable satisfaction, which may include removal of such person, provided that such removal complies with state and federal laws and regulations, including but not limited to, labor and employment laws.

3.6 Ownership of Drawings and Other Items. All drawings, reports, designs, sketches, working drawings, shop drawings, documents, certificates, plans, specifications, estimates, memoranda, analyses, calculations, models and other tangible evidence of Contractor’s work product prepared in connection with the Work shall become and remain the sole property of Owner. Contractor may retain copies of its work product for its records, provided that any use thereof (other than with respect to the Work) without the written consent of Owner is prohibited. Any devices (other than equipment or devices which constitute part of the Work) or methods now being used in the marketplace, and incorporated into the Project, are not considered to be property of Owner. Innovative construction methods or mechanical devices developed by Contractor or its Subcontractors used in connection with the Work are not considered property of Owner unless such methods or devices were developed by Owner or Owner’s separate contractors.

3.7 Books, Records and Invoices. Contractor shall keep and maintain complete and accurate books, records and invoices relating to the costs and performance of the Work in accordance with industry standards for cost-plus work, or in such form, substance and details as Owner may prescribe from time to time. Owner shall have the right to inspect, examine, copy and audit such records, books and invoices at any reasonable time or times during the term of this Agreement, during the period of two (2) years after Final Acceptance by Owner of the Work, or within one (1) years after the termination hereof or the termination of the Work, whichever is later. Contractor shall make such books, records and invoices available for inspection, examination, copying and auditing as may be prescribed by Owner. Owner shall remit payment to Contractor for all costs Contractor incurs, including but not limited to, employee time, copies, office space, etc. needed to facilitate the requests of Owner in accordance with this section. Contractor shall maintain at the Site for Owner one record copy of the final plans, drawings and specifications for the Work, in good order and marked currently to record all changes made during construction. Contractor acknowledges that Owner may hire one or more third party representatives, including, without limitation, an engineering, procurement and construction management firm to review such records, books and invoices on behalf of Owner. Contractor acknowledges and agrees that Owner’s


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third party representative may be an engineering, procurement and construction firm that is a competitor of Contractor; provided, however, that Contractor may require such third party to sign a commercially reasonable confidentiality agreement prior to disclosing Contractor’s confidential information that is included in such information and documents.

3.8 Taxes. Except as otherwise expressly provided below in this paragraph, the Target Price as set forth in Section 9 includes all taxes, including, without limitation, (a) state and federal payroll taxes, including, without limitation, contributions of taxes assessed against employees on wages earned, in connection with Contractor’s performance of the Work under this Agreement, (b) taxes levied or assessed upon Contractor’s equipment or other property or operations, and (c) all sales taxes levied on the equipment, supplies, facilities and other materials to be utilized as components of the Work. Contractor shall pay all such taxes incurred in connection with the performance of the Work. Contractor shall provide Owner with an accurate accounting of all sales and use taxes paid on construction materials, supplies and facilities incorporated in the Work (as opposed to those which are used or consumed in the performance of the Work, but which are not physically incorporated into the Work to include, but not limited to, labor, rents and royalties whether incurred by Contractor or any of its Subcontractors).

3.9 Confidential Information. All data and information acquired by Contractor in connection with the Work to be performed by Contractor hereunder shall be for the sole and exclusive benefit of Owner. The provisions of this Section 3.9 shall not apply to data and information within either of the following categories: (a) information which was in the public domain prior to receipt thereof from Owner or which subsequently becomes part of the public domain by publication or otherwise except by Contractor’s wrongful or negligent act; (b) information received by Contractor from a third party which did not have a confidentiality obligation with respect thereto; or (c) data and information used in Contractors or Contractors suppliers and subcontractors normal course of business.

3.10 Patent Rights, Copyrights and Title to Work. All royalties or other charges for the use of patents or copyrights to be used in the performance of the Work and Owner’s ownership of the Work shall be deemed to be included in the Target Price. Title to all Work completed, all Work in the course of construction, and all materials furnished or developed by Owner or by Contractor, irrespective of location thereof, shall be in Owner’s name once Contractor receives payment, but the ownership thereof by Owner shall not absolve Contractor from liability for loss or damage to same, nor from any other duty or responsibility for the same, as provided in this Agreement. Notwithstanding the foregoing, Contractor is not and cannot provide title or licenses with respect to engineering or processes provided by third parties other than Subcontractors in connection with the Project.

3.11 Schedule.

3.11.1 Attached as Exhibit B to this Agreement is a project schedule (the “Project Schedule”) that includes target dates for achieving the Preliminary Reactor Test Demonstration, Mechanical Completion and Substantial Completion.

3.11.2 Subject to Sections 8 and 10 below and to any adjustments authorized pursuant to the other provisions of this Agreement, Contractor shall diligently perform the Work and strive to achieve the Preliminary Reactor Test Demonstration, the Mechanical Completion and the Substantial Completion on or before the applicable date set forth in the Project Schedule, as may be modified through mutually approved Target Price Revisions or Change Orders through the course of the Project.


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3.11.3 The dates for completing the Preliminary Reactor Test Demonstration, the Mechanical Completion and the Substantial Completion shall be extended for any period of delay caused by reasons not within the sole control of Contractor, its suppliers or subcontractors, or Owner failing to provide timely payment or approvals in accordance with the provisions of this Agreement when such failure was not due to action or inaction of Contractor or its Subcontractors and provided that Contractor provides Owner with prompt written notice of any such delay by Owner. If the Work is delayed due to the fault of Contractor such that Contractor does not achieve the Preliminary Reactor Test Demonstration, Mechanical Completion or Substantial Completion on or before the applicable date set forth in the Project Schedule, then the Project Schedule shall not be adjusted, and Contractor shall pay Owner liquidated damages in the amount of [*] of delay in achieving the applicable milestone up to a combined aggregate limit of one million dollars ($1,000,000).

3.11.4 Contractor shall promptly notify Owner upon completion of each major item or portion of the Work.

3.11.5 No rights of Owner shall be waived by permitting Contractor to work after the time for completion has expired.

3.12 Permits, Licenses and Authorizations. Contractor shall obtain, on a timely basis, all permits and authorizations which Contractor is required to obtain directly in its own name in order to perform the Work, and Contractor shall either furnish to Owner copies of all such permits and authorizations or maintain copies of the same at the Site or at the appropriate offices of Contractor. Contractor shall also, on a timely basis, supply all technical documentation required in support of such permits, licenses and authorizations as are required to be issued in Owner’s name in connection with the Work, and Contractor shall otherwise assist Owner in securing such permits, licenses and authorizations. If mutually agreed upon by Owner and Contractor, permits to be obtained by Contractor may include city, county and state building permits, electrical permits and plumbing permits. Owner shall be responsible for county, state and federal environmental permits to operate the Project after completion of the Work.

3.13 Clean Site. Contractor shall confine operations at the Site to areas permitted by law, ordinances, permits and the Statement of Work. Contractor at all times shall keep the Site free from accumulation of waste materials or rubbish caused by its operations. Upon completion of the Work, Contractor shall remove all waste materials and rubbish from and about the Site, as well as its tools, construction equipment, machinery and surplus materials, and shall clean all surfaces and shall leave the Site “broom clean” or its equivalent.

3.14 Safety. Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to (a) all personnel performing any portion of the Work and all other Persons who may be affected thereby, (b) the Work, the Site, and all materials and equipment to be incorporated therein, whether in storage on or off the Site, under the care, custody or control of Contractor or any of its Subcontractors or anyone for whose acts any of them may be liable, and (c) other property at the Site or adjacent thereto, including soil, water, trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of the Work. Contractor shall give all notices required by and comply with all applicable laws, ordinances, rules, regulations and lawful orders of any public authority bearing on the safety of Persons or property or their protection from damage, injury or loss. Contractor shall erect and maintain, as required by existing conditions and progress of the Work, all reasonable safeguards for safety and protection, including installing fences and posting danger


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signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. Contractor shall be solely responsible for any loss or expense incurred by Owner arising from injury or death to Persons or damage to property in anyway incident to or in connection with the placement, storage, spill, discharge or release on or about the Site of Hazardous Substances brought onto or about the Site by Contractor or any of its Subcontractors in connection with the performance of the Work or otherwise. When the use or storage of Hazardous Substances is necessary for the performance of the Work, Contractor shall exercise the utmost care and shall carry on such activities under the supervision of properly qualified personnel. Contractor shall promptly remedy all damage or loss to any property referred to in this paragraph caused in whole or in part by Contractor, its Subcontractor or anyone for whose acts either of them may be liable. The foregoing obligations of Contractor are in addition to Contractor’s obligations under Section 7.5 hereof.

4	CERTAIN OBLIGATIONS OF OWNER

4.1 Owner’s Representative. Owner designates Karl Taft as its representative (“Owner’s Representative”) who shall be fully authorized to act on behalf of Owner for the purpose of giving notices, instructions and other communications to Contractor, receiving communications from Contractor, granting approvals required or permitted under this Agreement and otherwise representing Owner in connection with all activities conducted pursuant to this Agreement. All notices, instructions, approvals and other communications provided to Contractor by Owner’s Representative shall be deemed to have been provided by Owner and all notices, requests, approvals and other communications provided to Owner’s Representative by Contractor shall be deemed to have been received by Owner. Owner may designate one or more successor representatives of Owner by written notice to Contractor from time to time. Notwithstanding the foregoing provisions of this paragraph, Owner may, at Owner’s election, by notice in such written designation or by subsequent written notice to Contractor from time to time, limit the authority of Owner’s Representative to approve Changes and Extra Work under Section 8 below. Such limitation shall not affect previously approved Changes and shall not be effective until notice is received by Contractor.

4.2 Property Rights and Access to Site. Owner warrants that it has a valid long-term leasehold interest in the Site and possesses the legal right to construct Work on the Site. Owner agrees to provide Contractor full access to the Site for purposes of performing the Work and an adequate area or areas at such Site for Contractor’s office, warehouse, craft change rooms, shop buildings, welding facilities, materials storage and employee parking, and all temporary water and power necessary (including necessary standby or alternate power in the event of a power interruption) to support all construction. Owner, its agents and employees, shall have access to the Site to perform any and all work on the Site which Owner may undertake either through its own work forces or through contractors or subcontractors, independently hired by Owner, and to inspect Contractor’s work. Owner shall use commercially reasonable efforts to schedule such other work in a manner which will not delay Contractor’s work. If such delay is caused by Owner, Owner agrees to extend the Preliminary Reactor Test Demonstration, Mechanical Completion, and/or Substantial Completion Date, as applicable, for the length of the delay and to keep Contractor whole for any additional labor costs caused by the delay unless such delay was due to action or inaction of Contractor or its subcontractors and provided that Contractor provides notice immediately to Owner’s Representative when Contractor believes such delay has occurred or is likely to occur. The provisions in this paragraph and in Section 3.12 regarding delays in construction shall not apply to time needed for normal inspections or for remedial work required following such inspections.


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4.3 Pre-existing Hazardous Substances. Anything herein to the contrary notwithstanding, responsibility for any pre-existing Hazardous Substances shall remain with Owner. Subject to Contractor’s compliance with its duty to identify Hazardous Substances, Owner shall indemnify and hold Contractor harmless from and against any and all liability which may in any manner arise as a result of exposure to Persons and property to such pre-existing Hazardous Substances unless such liability arises from Contractor’s or its Subcontractor’s negligence or willful misconduct. Contractor shall identify to Owner any pre-existing Hazardous Substances immediately upon discovery. Upon discovery of any such pre-existing Hazardous Substances, Owner shall have the right to postpone the Work, in whole or in part, pursuant to the provisions of Section 10.5 hereof, except that such postponement shall become effective immediately upon receipt by Contractor of notice thereof. Owner shall have the right, at its own discretion, to determine whether to (i) request by a Change or Extra Work that Contractor undertake remedial action, (ii) take such remedial action itself, or (iii) take no action.

4.4 Other Data and Materials. Owner shall supply, at its own expense and on a timely basis, all geotechnical data required in connection with performance of the Work, a topographic survey of the Site, access to hydrostatic test water, and all crude oil or the products required for commissioning of the Work.

4.5 Payment. Owner shall remit payment in accordance with the terms of Section 9 contained herein.

4.6 In addition to the foregoing, Owner shall:

4.6.1 Provide all drawings, engineering, specifications (including completion of any drawings and specifications identified by the Parties as incomplete as provided herein, engineering assistance for Change Orders, and responses to requests for information), and the materials and equipment listed on Exhibit D (the “Owner-furnished Equipment”), as necessary for Contractor to perform the Work in accordance with the Project Schedule as adjusted by any modifications to this Agreement. Contractor shall make any request for reconciliation or clarifications of, or for further preparation or completion of, Drawings through a request for information delivered jointly to Owner’s Representative and to Owner’s engineer (“RFI”). Owner shall have up to five (5) business days after delivery of the RFI to provide Contractor with responses that do not require preparation or revision of engineered Drawings or Specifications, and up to ten (10) business days after delivery of the RFI to provide Contractor with responses that require preparation or revision of engineered Drawings or Specifications. RFI’s shall be sequentially numbered, shall identify the date for response pursuant to the previous sentence and shall, in the event of cost or schedule effect (other than response time to the RFI if timely made pursuant to the preceding provisions) , be processed in accordance with Section 8 and the other applicable provisions of this Agreement.

4.6.2 Provide the start-up, commissioning and operating personnel necessary for initial operation, performance testing and maintenance of the Project, and review and approval of any proposed substitutions, except as is required to be provided by Contractor under this Agreement.

4.6.3 Provide all training of start-up, commissioning and operating personnel, except as is required to be provided by Contractor in this Agreement;

4.6.4 Provide all start-up and operating consumables, including, but not limited to, gas feedstocks, reagents, raw materials, lubricants, water and power, in the quantities and of the quality reasonably specified by Contractor for the safe and efficient operation and maintenance of the Project;


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4.6.5 Provide all spare parts necessary for the safe and efficient start-up, operation and maintenance of the Project, provided that if Contractor uses any spare parts for the Work or any warranty work, Contractor will replace such spare part at Contractor’s expense;

4.6.6 Perform its obligations, responsibilities and duties described in this Agreement;

4.6.7 Accept and dispose of any product and associated by-products and/or waste generated through commissioning, start-up, testing and/or operation of the Project;

4.6.8 Provide the Owner-furnished Equipment as required to support the Project Schedule; and

4.6.9 Provide the Site and gas fuel supply for the Project as required to support the Project Schedule.

4.6.10 Obtain and maintain throughout the performance of the Work insurance in accordance with Section 7.3, and all permits, qualifications and licenses required to be taken out in the name of Owner, as the case may be, which are necessary for the performance of the Work.

4.6.11 Obtain third party vendor support, (i) as necessary to assist in the startup and testing of Equipment which has reached Mechanical Completion, (ii) as needed for technical support, and (iii) as required for startup, initial operation and performance testing of the and its associated controls.

5	SUBMITTALS, INSPECTIONS AND APPROVALS

5.1 Submittals.

5.1.1 Shop Drawings are drawings or diagrams specially prepared for the Work by Contractor or a Subcontractor to illustrate some portion of the Work.

5.1.2 Product Data is information furnished by Contractor to illustrate materials or equipment for some portion of the Work.

5.1.3 Samples are physical specimens of materials, equipment or workmanship that establish standards by which the Work will be judged.

5.1.4 Shop Drawings, Product Data, Samples and similar submittals (collectively “Submittals”) are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Contract Documents the manner and method by which Contractor proposes to achieve the requirements of the Contract Documents.

5.1.5 Contractor shall review for compliance with the Contract Documents, approve and submit to the Owner Submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of Owner or of Owner’s separate contractors.

5.1.6 By approving and submitting to Owner Submittals, Contractor represents that Contractor has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents.


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5.1.7 Unless approved by Owner in writing or by e-mail, Contractor shall perform no portion of the Work for which the Contract Documents require Submittals until the respective Submittal has been approved by Owner.

5.2 All fabricated material may be inspected (at Owner’s discretion) at Contractor’s facility before shipment to the Site. If an inspection is desired by Owner, Owner shall list those items to be inspected in the Work. Owner reserves the right to inspect all fabricated material at Contractor’s facility or at the Site. Contractor shall notify Owner’s representative at least five (5) working days before shipment that fabricated material is available for inspection.

5.3 All Work performed by Contractor hereunder shall be subject to inspection, testing and approval by Owner. Owner may, at its discretion, employ the services of specialist inspection and testing agencies for this purpose. Unless otherwise specified in this Agreement, or as may be agreed to by Owner in writing or by e-mail, all Drawings will be approved by Owner, in writing, prior to commencement of any Work based on the Drawings.

5.4 Any inspection or approval of the Work given under this Agreement by Owner shall not relieve Contractor of its responsibility for compliance with this Agreement, nor from its responsibility for the quality of the Work, nor from any warranty, guarantee or liability under law, either expressed or implied, in this Agreement.

5.5 When the Work has been completed in accordance with the Contract Documents, Contractor shall so notify Owner in writing. Owner shall then inspect the Work and if it is found not to be in compliance with the Contract Documents, Owner shall so notify Contractor in writing specifying the details of such non compliance. At Contractor’s expense, Contractor shall promptly correct all Work noted to be in noncompliance and notify Owner once corrections have been made. Owner shall then reinspect the Work to determine compliance with the Contract Documents. If Owner rejects the Work or any part thereof which is reinspected, then the procedure set forth above shall be repeated until Work not in compliance is corrected and the Work is accepted by Owner.

6	WARRANTIES

6.1 Warranties. Contractor warrants and represents to Owner that:

6.1.1 Contractor and Owner each warrant that they are financially solvent, able to pay their respective debts as they mature, and possessed of sufficient working capital to perform and complete their respective obligations under this Agreement;

6.1.2 Contractor is able to furnish any of the plant, tools, materials, supplies, equipment and labor required to perform and complete its obligations under this Agreement, and has sufficient experience and competence to do so;

6.1.3 Contractor is authorized to do business in the State of Idaho and any other state where any part of the Work is to be performed, and is properly licensed by all necessary governmental and public and quasi-public authorities having jurisdiction over it, the services required by the Contract Documents, and the Work;

6.1.4 The applicable Construction Documents, if and to the extent provided by Contractor, are adequate for the construction of the Work, in accordance with the provisions of this


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Agreement and all applicable laws, rules, codes and regulations affecting the Work covered by this Agreement;

6.1.5 Contractor’s construction responsibility shall be carried out in accordance with sound construction practice;

6.1.6 The Work shall be performed in a good and workmanlike manner and the Work shall be free from defects in materials, equipment and workmanship provided or performed by Contractor and if defects are found in any of the above, Contractor will rectify as described in Section 5.5;

6.1.7 All materials and equipment incorporated in the Work shall be new, free from liens, security interests and other claims, merchantable and free from defects in design, materials and workmanship;

6.1.8 The Work and all materials and equipment therein shall conform to the Construction Documents and other descriptions prepared by Contractor and approved by Owner under this Agreement;

6.1.9 The Work shall comply with all applicable laws, rules, codes, statutes, ordinances and regulations affecting the Work;

6.1.10 Contractor shall require from its Subcontractors the same standards of construction practice, and the construction warranties, required of Contractor hereunder, which warranties of said Subcontractors shall extend to and for the benefit of and shall be enforceable by both Contractor and Owner or by either of them individually;

6.1.11 Contractor shall secure or cause its Subcontractors to secure warranties from third party vendors and suppliers with respect to equipment manufactured or furnished by them, and Contractor shall provide that all manufacturer’s or other warranties on all products furnished by Contractor shall either run directly to Owner or shall be assignable to Owner.

6.1.12 The installation of all such products referred to in Section 6.1.11 above shall be such as will not invalidate manufacturer and other warranties on such products;

6.1.13 Contractor shall use its best efforts, including litigation, if necessary, to enforce such warranties on all products furnished by Contractor; and,


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Payment by Owner of any sums to become owing to Contractor hereunder shall not constitute a waiver by Owner of any liability of Contractor for breach of any of the warranties contained in this paragraph or elsewhere in this Agreement, nor shall Contractor be exonerated from liability by reason of the fact that Owner has approved any plans or other documents prepared by Contractor.

6.2 Enforcement of Warranties. The warranties set forth in Section 6.1 hereof shall apply to any defect, non-conformance or failure in the Work which appears during a period of one (1) year from the date of acceptance by Owner of the Work for specific facilities or items of equipment (herein referred to as the “Warranty Period”), which Warranty Period with respect to any component of the Work replaced or repaired during said period shall be extended, as to such component only, for a period equivalent to such applicable Warranty Period from the date of such replacement. Owner shall notify Contractor in writing within five (5) Days of any defect, non-conformance or failure discovered by Owner once the warranty period has commenced. Contractor agrees promptly to remedy any such breach, at Contractor’s sole expense by either replacing or repairing any defective or nonconforming portion of the Work, including repair or replacement of other property furnished by Contractor or its Subcontractors or by the vendors of equipment damaged as a result of such deficiencies. Contractor shall not be obligated to repair or replace any materials, operating equipment or work which becomes defective as a result of improper operation or maintenance of equipment or facilities by Owner or its designated operators or agents. It is expressly understood that the warranties contained herein shall not limit or waive Contractor’s other obligations under this Agreement.

6.3 Exclusion of Warranties. THE WARRANTIES SET FORTH IN THIS SECTION 6 ARE EXCLUSIVE AND ARE IN LIEU OF ANY OTHER WARRANTIES BY CONTRACTOR, EXPRESS AND IMPLIED (EXCEPT AS TO OTHERS, INCLUDING TITLE WARRANTIES, ELSEWHERE SPECIFICALLY SET FORTH IN THIS AGREEMENT).

6.4 Third Party Warranty Protection. Contractor shall pass on all third party warranties to Owner, and act in good faith to assist in enforcement of such warranties if required. In no case shall Contractor be obligated to replace or repair third party materials or equipment beyond the warranty provided by such third parties.

7	INSURANCE AND INDEMNITY

7.1 Without limiting in any way the scope of any obligations or liabilities assumed hereunder by Contractor, Contractor shall procure or cause to be procured and maintained at its expense, for the duration of this Agreement, and with insurance companies reasonably acceptable to Owner, the insurance policies described below. Contractor acknowledges that the endorsements and the type of insurance coverage and the limits thereof, are minimum limits which shall not be reduced without the prior written consent of Owner, which consent is solely in the discretion of Owner.

7.1.1 Workers’ Compensation and Employer’s Liability Insurance covering the employees of Contractor for all compensation and other benefits required of Contractor by the Worker’s Compensation or other statutory insurance laws in the state having jurisdiction over such employees, and over the location where the Work is being performed, including Alternate Employer. Employer’s Liability Insurance with limits of not less than One Million Dollars ($1,000,000) per occurrence.

7.1.2 General Liability Insurance including contractual liability and completed operations to cover liability for bodily injury and property damage with a combined single limit of not less than Three Million Dollars ($3,000,000) per occurrence.


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7.1.3 Business Automobile Liability Insurance, if owned, hired or non owned automotive equipment is used in the performance of this Agreement, to cover liability for bodily injury and property damage with a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence.

7.1.4 Excess Liability with limits of coverage of $10,000,000 each occurrence and $10,000,000 in the aggregate.

7.2 Special Provisions Concerning Policies Placed by Contractor.

7.2.1 All policies (except Worker’s Compensation) shall include Owner and its affiliates as additional insured for liabilities arising out of the performance under this Agreement and shall be primary to any other insurance of Owner. Such insurance shall specifically provide that it applies separately to each insured against which claim is made or suit is brought, except with respect to the limits of the insurer’s liability. All policies, excepting Worker’s Compensation, shall provide that all rights of subrogation against Owner and its affiliates are waived when permitted by law. Such insurance shall be primary over any coverage’s maintained by Owner. All policies must include thirty (30) Days written notice of cancellation to Owner.

7.2.1.1 The policy limits specified above are minimum requirements and not limits of liability and shall not be construed in any way as Owner’s acceptance of responsibility for financial liabilities in excess of such limits. Contractor shall pay all deductibles and self insured retentions, including defense costs, applicable to the insurance, except for coverage triggered by the acts or omissions of Owner.

7.2.1.2 Prior to commencement of the Work, Contractor shall furnish Owner with Certificates of Insurance which document that all coverages and endorsements required by this Section have been obtained for the Work. Contractor shall obtain renewal certificates as and when necessary and copies thereof shall be forwarded to Owner as soon as same are available and in any event prior to the expiration of the policy so renewed. These certificates shall provide that the insurer shall give thirty (30) Days written notice to Owner prior to change or cancellation of any policy. In no event shall Owner’s acceptance of an insurance certificate that does not comply with this paragraph constitute a waiver of any requirement of this Section.

7.2.1.3 All insurance certificates and other routine insurance related correspondence shall be sent to Owner by registered or certified mail, postage prepaid, return receipt requested, or delivered in Person or by commercial courier or sent by facsimile to:

HOKU MATERIALS, INC.

1 Hoku Way

Pocatello, Idaho 83204

Attn: Karl M. Taft III

Facsimile: 808-682-7807

7.2.2 Subcontractors. Contractor shall require all its Subcontractors to provide statutory Workers’ Compensation insurance coverage.


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7.3 Builder’s Risk. During the term of this Contract, Owner shall maintain in full force and, at Owner’s expense, Builders’ risk insurance on all risks of any physical loss, including without limitation, earthquake, flood or fire, for an amount equal to the full completed value of the facility and Owner shall be liable for any deductible amount as required by the policy.

7.4 Indemnity. CONTRACTOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS OWNER, ITS LENDERS, PARENT COMPANIES AND AFFILIATES, AND THE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, EMPLOYEES AND REPRESENTATIVES OF EACH OF THEM (INDIVIDUALLY, “INDEMNITEE” AND COLLECTIVELY, THE “INDEMNITEES”) FROM AND AGAINST ANY AND ALL THIRD-PARTY (INCLUDING, WITHOUT LIMITATION, THOSE BY EMPLOYEES AND AGENTS OF CONTRACTOR AND/OR SUBCONTRACTORS OF CONTRACTOR) SUITS, ACTIONS, LEGAL OR ADMINISTRATIVE PROCEEDINGS, CLAIMS, DEMANDS, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS’ FEES) OF ANY NATURE FOR BODILY INJURY OR DEATH OR PHYSICAL DAMAGE TO PROPERTY OF ANY OF THE INDEMNITEES OR THIRD PARTIES ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE WORK. THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION, HOWEVER, TO ANY SUIT, ACTION, PROCEEDING, CLAIM, DEMAND, COST OR EXPENSE WHERE SUCH INJURY, DEATH, OR DAMAGE RESULTS FROM THE NEGLIGENCE, EITHER ACTIVE OR PASSIVE, AND/OR SOLE OR CONTRIBUTORY, OR THE WILLFUL MISCONDUCT OF OWNER.

7.5 CONTRACTOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS OWNER FROM AND AGAINST ALL CLAIMS, DEMANDS AND LIABILITIES ARISING FROM HAZARDOUS SUBSTANCES, INCLUDING CONTROL AND REMOVAL THEREOF, CAUSED BY CONTRACTOR’S DIRECT NEGLIGENT ACT IN PERFORMING CONTRACTOR’S OBLIGATIONS HEREUNDER.

7.6 CONTRACTOR SHALL NOT BE LIABLE TO OWNER FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE.

7.7 Limitation. In any and all claims against an Owner by any party for property and/or property damage the indemnification obligation under this Section shall be limited to the extent of Contractor’s collectible and valid insurance. In any and all claims for bodily injury or death the indemnification obligation under this Section shall be limited to the extent of Contractor’s collectible and valid insurance and all Incentive Fees paid to Contractor pursuant to this Agreement.

8	CHANGES AND EXTRA WORK

8.1 Owner’s Instructions. Owner reserves the right to require Contractor to undertake Changes or Extra Work. Contractor shall not undertake any Changes or Extra Work without prior written instructions by Owner.

8.2 Adjustment of Compensation. If Owner requests a Change or Extra Work, Contractor shall furnish Owner with a Change Order, or “Target Price Revision” indicating the increase or decrease in the Target Price and any adjustment in the Project Schedule for Owner’s approval. Contractor shall not be liable to perform any Change or Extra Work unless the parties have mutually agreed to either (A) a lump sum amount or (B) to perform the work on a cost plus basis as may be necessary for the Change or


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Extra Work and any appropriate adjustment of the Project Schedule, prior to the time the Change or Extra Work is to begin.

9	COMPENSATION

9.1 Contract Price. Owner shall pay to Contractor, as full and complete compensation for performance of the Work, the amount of compensation described in Exhibit C to this Agreement, subject to the provisions of Section 9.2 of this Agreement.

9.2 Basis of Compensation.

9.2.1 Cost of the Work

9.2.1.1 Reimbursable costs shall be actual Cost of the Work incurred by Contractor, less all discounts, rebates, refunds, salvages, and amounts received from sales of surplus materials upon completion of the Work under this Agreement. Contractor represents that all rates applied to determine the Cost of the Work, including all labor, materials, overhead and fee rates, shall be consistent with the then-current market rates applicable to projects of the same general scope in the region where the Site is located.

9.2.1.2 At no time shall Owner be billed more than once for the same cost.

9.2.1.3 Contractor shall maintain all records and documentation necessary for Owner to apply to any federal, state, or local governmental entity for rebate payments or similar incentive programs for sales taxes, use taxes, and other taxes, fees, levies or assessments by such governmental entities. Contractor shall assist Owner in the preparation and submission of forms, schedules, worksheets, and other documents required to make a claim for such payments.

9.2.2 Incentive Fees

9.2.2.1 Budget Incentive. Following Final Acceptance of the Work, if the actual Cost of the Work plus Fee is less than or equal to the estimated Cost of the Work plus Fee stated in Exhibit C, then Owner shall pay to Contractor a sum equal to [*] of the difference between the estimated Cost of the Work plus Fee and the actual Cost of the Work plus Fee, with Owner retaining the [*] balance of the underun; provided, however that the maximum Budget Incentive shall be [*].

9.2.2.2 Schedule Incentive. In the event the Preliminary Reactor Test Demonstration, the Mechanical Completion or the Substantial Completion shall occur on or before the respective dates set forth on the Project Schedule, Contractor shall be entitled to a “Schedule Incentive” equal to [*] for each such milestone (up to an aggregate of [*] if all milestones are achieved on schedule). However, after the date of each such completion date, the applicable Schedule Incentive shall be reduced by [*] per day for every day the Preliminary Reactor Test Demonstration, the Mechanical Completion or the Substantial Completion, as applicable, is not achieved. However, in no event shall the Schedule Incentive be reduced below [*].

9.2.2.3 Safety Incentive. Following Final Acceptance of the Work, Owner shall pay to Contractor a Safety Incentive based on the OSHA Recordable Incident Rate (ORIR) for the Work performed based on the following schedule:


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ORIR		Safety Incentive
[*]		[*]
[*]		[*]
[*]		[*]

9.3 Payment Terms

9.3.1 The Parties acknowledge and agree that they intend to pre-fund Contractor’s estimated Cost of the Work and Fee on a monthly basis. To that end, once each month, Contractor shall submit to Owner an application for payment (the “Application for Payment”). The period covered by each Application for Payment shall be one calendar month ending on the last day of the following month or as otherwise mutually agreed to accommodate Contractor’s cost system as it is understood that Contractor’s labor costs are accumulated such that a pay period must end on a Sunday. Contractor will provide with each Application for Payment a projection estimate for the anticipated costs of the Work during the upcoming month. This p