Georgia Power Company has
requested confidential treatment for certain portions of this
document pursuant to an application for confidential treatment sent
to the Securities and Exchange Commission. Georgia Power Company
has omitted such portions from this filing and filed them
separately with the Securities and Exchange Commission. Such
omissions are designated as "[***]."
ENGINEERING, PROCUREMENT AND CONSTRUCTION
AGREEMENT
BETWEEN
GEORGIA
POWER COMPANY, FOR ITSELF AND AS AGENT FOR OGLETHORPE POWER
CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION), MUNICIPAL
ELECTRIC AUTHORITY OF GEORGIA AND THE CITY OF DALTON, GEORGIA,
ACTING BY AND THROUGH ITS BOARD OF WATER, LIGHT AND SINKING FUND
COMMISSIONERS, AS OWNERS
AND
A
CONSORTIUM CONSISTING OF WESTINGHOUSE ELECTRIC COMPANY LLC AND
STONE & WEBSTER, INC., AS CONTRACTOR
FOR
UNITS 3
& 4 AT THE VOGTLE ELECTRIC GENERATING PLANT SITE
IN
WAYNESBORO, GEORGIA
DATED AS OF
APRIL 8, 2008
TABLE OF CONTENTS
|
ARTICLE 2 INTERPRETATION
|
18
|
|
ARTICLE 3 SCOPE OF WORK
|
20
|
|
|
3.2 Phase I-Limited Notice to Proceed
|
20
|
|
|
3.3 Phase II-Full Notice to Proceed
|
21
|
|
|
3.5 Contractor Responsibilities
|
23
|
|
ARTICLE 4 OWNERS' RESPONSIBILITIES AND
RIGHTS
|
38
|
|
|
4.1 Owners' Responsibilities
|
38
|
|
|
4.2 Owners' Right to Inspect, Stop and
Re-Perform Work
|
40
|
|
ARTICLE 5 QUALITY ASSURANCE
|
41
|
|
|
5.1 Quality Assurance Program
|
41
|
|
|
5.2 Subcontractor and Vendor Quality
Assurance
|
42
|
|
|
5.3 Quality Control and Inspection
Activities
|
42
|
|
|
5.4 Access and Auditing on-Site and Other
Facilities
|
42
|
|
|
5.5 Witness Points and Hold Points
|
43
|
|
ARTICLE 6 CONTRACT PRICE
|
44
|
|
ARTICLE 7 PRICE ADJUSTMENT
PROVISIONS
|
44
|
|
|
7.1 Price Adjustment Methodology
|
44
|
|
|
8.1 Respective Payment Responsibility
|
44
|
|
|
8.3 [***] Price Payments
|
46
|
|
|
8.5 Supporting Documentation; Payment
Disputes
|
47
|
|
|
8.6 No Acceptance by Payment
|
48
|
TABLE OF CONTENTS
( continued
)
|
|
8.7 Security for Payment by Owners
|
48
|
|
|
8.8 Separate Payments to Consortium
Members
|
49
|
|
|
8.9 Conditions of Payments; Punch
List Withholding
|
49
|
|
|
8.10 Long Lead Materials
|
50
|
|
|
9.1 Entitlement to Change
|
51
|
|
|
9.2 Owner-Directed Changes
|
52
|
|
|
9.4 Notice of a Change
|
52
|
|
|
9.5 Disputes over Changes
|
53
|
|
|
9.6 Changes for Contractor's
Convenience
|
53
|
|
ARTICLE 10 UNCONTROLLABLE
CIRCUMSTANCES
|
54
|
|
|
10.1 Uncontrollable Circumstances
|
54
|
|
|
10.3 Excused Performance
|
55
|
|
|
11.1 Scope and Objective of Testing
|
55
|
|
|
11.2 Construction and Installation
Tests
|
56
|
|
|
11.3 Preoperational System Tests
|
57
|
|
|
11.4 Start-up Tests Objectives and
Protocol
|
58
|
|
|
11.5 Performance Tests
|
60
|
|
|
11.6 Performance Guarantees
|
63
|
|
ARTICLE 12 STAGES OF COMPLETION
|
65
|
|
|
12.2 Unit Mechanical Completion
|
66
|
|
|
12.3 Start-up Test Completion
|
66
|
|
|
12.4 Substantial Completion
|
67
|
|
ARTICLE 13 DELAY AND PERFORMANCE GUARANTEES;
BONUSES
|
69
|
TABLE OF CONTENTS
( continued
)
|
|
13.1 Delay Liquidated Damages
|
69
|
|
|
13.2 Early Completion Bonus
|
69
|
|
|
13.3 Performance Liquidated Damages
|
70
|
|
|
13.4 Performance Bonus
|
71
|
|
|
14.4 Warranty Period Extension
|
76
|
|
|
14.5 Warranty of Title
|
76
|
|
|
14.6 Limitations and Disclaimers
|
76
|
|
|
15.1 Third Party Claims
|
78
|
|
|
15.2 Damage to Property
|
78
|
|
|
15.3 Intellectual Property Indemnity
|
78
|
|
|
15.4 Nuclear Indemnity and Insurance
|
79
|
|
|
15.5 Indemnity Procedures
|
80
|
|
|
16.2 Phase I Insurance Requirements
|
82
|
|
|
16.3 Phase II Insurance Requirements
|
83
|
|
|
16.4 Additional Insurance Terms
|
85
|
|
ARTICLE 17 LIMITATION OF
LIABILITY
|
85
|
|
|
17.1 No Consequential Damages
|
85
|
|
|
17.2 Maximum Total Liability
|
86
|
|
|
17.3 Division of Liability
|
86
|
|
ARTICLE 18 LIENS; SECURITY
|
87
|
TABLE OF CONTENTS
( continued
)
|
|
18.2 Discharge or Bond
|
87
|
|
ARTICLE 19 CONFIDENTIAL AND PROPRIETARY
INFORMATION
|
88
|
|
|
19.1 Protection of Owner Confidential and
Proprietary Information
|
88
|
|
|
19.2 Protection of Contractor's Confidential and
Proprietary Information
|
89
|
|
|
19.3 Special Procedures Pertaining to Contractor's
Confidential and Proprietary Information
|
91
|
|
|
19.6 Conditional License Grant
|
95
|
|
|
19.7 Procedures for Disclosure to Related Party
Recipients
|
96
|
|
ARTICLE 20 REPRESENTATIONS AND
WARRANTIES
|
97
|
|
|
20.1 Representations and Warranties of
Contractor
|
97
|
|
|
20.2 Representations and Warranties of
Owners
|
98
|
|
|
20.3 Direct Representations by Owners
|
99
|
|
|
20.4 Consortium Not a Partnership
|
99
|
|
ARTICLE 21 TITLE; RISK OF LOSS
|
99
|
|
|
21.1 Transfer of Title; Intellectual
Property
|
99
|
|
ARTICLE 22 SUSPENSION AND
TERMINATION
|
101
|
|
|
22.1 Suspension by the Owners for
Convenience
|
101
|
|
|
22.2 Contractor Event of Default
|
101
|
|
|
22.3 Termination by Owners for
Convenience
|
103
|
|
|
22.4 Termination because of Uncontrollable
Circumstance, Government Action or Other Causes
|
103
|
|
|
22.5 Termination by Contractor
|
104
|
|
|
22.6 Actions Required of Contractor upon
Termination
|
105
|
|
ARTICLE 23 SAFETY; INCIDENT
REPORTING
|
105
|
TABLE OF CONTENTS
( continued
)
|
|
23.1 Designated Contractor Safety
Representative
|
105
|
|
|
23.2 OSHA and Other Laws
|
106
|
|
|
23.3 Cooperation in Governmental Investigations
and Inspections
|
107
|
|
ARTICLE 24 QUALIFICATIONS AND PROTECTION OF
ASSIGNED PERSONNEL
|
107
|
|
|
24.1 Contractor's Personnel
|
107
|
|
|
24.2 Screening Measures
|
109
|
|
|
24.3 Training of Employees
|
110
|
|
|
24.4 NRC Whistleblower Provision
|
110
|
|
|
24.5 Respirator Protection
|
110
|
|
ARTICLE 25 RECORDS AND AUDIT
|
110
|
|
|
25.1 Technical Documentation
|
110
|
|
|
25.2 Accounting Records
|
110
|
|
|
25.3 Maintenance of Records Generally
|
111
|
|
|
25.5 Sales Tax Records
|
111
|
|
|
25.6 Acknowledgement of Owners' Co-ownership
Agreements
|
112
|
|
|
26.2 Changes in Import Fees and Duties
|
113
|
|
|
26.3 Sales and Use Tax on Equipment
|
113
|
|
|
26.5 Tax Indemnification
|
113
|
|
|
26.6 Pollution Control Equipment
Information
|
114
|
|
ARTICLE 27 DISPUTE RESOLUTION
|
114
|
|
|
27.3 Resolution by Negotiation
|
114
|
TABLE OF CONTENTS
( continued
)
|
|
27.6 Exclusive Resolution Procedures; Equitable
Remedies
|
118
|
|
|
27.7 Continuation of Work
|
118
|
|
|
28.2 Notices Not Permitted by Facsimile or
Email
|
119
|
|
ARTICLE 29 ASSIGNMENT
|
120
|
|
|
30.2 No Implied Waiver
|
121
|
|
ARTICLE 31 MODIFICATION
|
121
|
|
ARTICLE 34 APPLICABLE LAW; WAIVER OF JURY TRIAL;
VENUE
|
122
|
|
|
34.2 Waiver of Jury Trial
|
122
|
|
ARTICLE 35 FEDERAL ACQUISITION REGULATIONS
REQUIREMENTS
|
122
|
|
|
35.1 Inclusion of FARs
|
122
|
|
|
35.2 Full Text of Clauses
|
123
|
|
ARTICLE 36 RELATIONSHIP OF OWNERS AND
CONTRACTOR
|
123
|
|
ARTICLE 37 THIRD PARTY
BENEFICIARIES
|
124
|
|
ARTICLE 38 MISCELLANEOUS
PROVISIONS
|
124
|
|
|
38.1 Rights Exclusive
|
124
|
|
|
38.3 Entire Agreement
|
124
|
|
|
38.5 Further Assurances
|
125
|
EXHIBITS
|
Exhibit
|
Description of
Exhibit
|
|
|
A
|
Scope of Work/Supply and Division of
Responsibilities
|
|
|
B
|
Contractor Organization
Chart
|
|
|
G
|
Time and Material Rates and
Charges
|
|
|
I
|
Early Service Equipment
|
|
|
J
|
Price Adjustment
Provisions
|
|
|
L
|
Net Electric Guarantee Conditions
and Load List
|
|
|
M
|
Form of Software License
|
|
|
N
|
Industry Codes and
Standards
|
|
|
O-1
|
Proprietary Data
Agreement
|
|
|
O-2
|
List of Intellectual Property
Subject To Third Party License Terms
|
|
|
O-3-A
|
Related Party Recipient Form of
Confidentiality Agreement
|
|
|
O-3-B
|
Form of Acknowledgement
|
|
|
O-3-C
|
Procedures for Disclosure to Related
Party Recipients
|
|
|
Q
|
Equipment with Owner-Designated
Witness and Hold Points
|
|
|
R
|
Site Condition
Information
|
|
|
S
|
Form of Lien Waivers and
Releases
|
|
|
T
|
Extended Equipment Warranty
Periods
|
|
|
U
|
Form of Letter of Credit
|
|
|
V-1
|
Form of Toshiba Guarantee
|
|
|
V-2
|
Form of Shaw Guarantee
|
|
|
V-3
|
Form of Parent Company
Guarantee
|
|
|
X
|
Form of Contractor
Affidavit
|
|
|
Z
|
Environmental, Health, and Safety
Specifications
|
ENGINEERING, PROCUREMENT AND CONSTRUCTION
AGREEMENT
This ENGINEERING, PROCUREMENT AND CONSTRUCTION
AGREEMENT (the “Agreement”) is entered into as of the
8th day of April, 2008 (the “Effective Date”), by and
between GEORGIA POWER COMPANY, a Georgia corporation
(“GPC”), acting for itself and as agent for OGLETHORPE
POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION), an electric
membership corporation formed under the laws of the State of
Georgia, MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA, a public body
corporate and politic and an instrumentality of the State of
Georgia, and THE CITY OF DALTON, GEORGIA, an incorporated
municipality in the State of Georgia acting by and through its
Board of Water, Light and Sinking Fund Commissioners, and a
consortium consisting of WESTINGHOUSE ELECTRIC COMPANY LLC, a
Delaware limited liability company having a place of business in
Monroeville, Pennsylvania (“Westinghouse”), and STONE
& WEBSTER, INC. a Louisiana corporation having a place of
business in Charlotte, North Carolina (“Stone &
Webster”). Except where the context otherwise requires,
Westinghouse and Stone & Webster hereinafter are individually
referred to as a “Consortium Member” and collectively
as “Contractor”. Owners and Contractor may be referred
to individually as a “Party” and collectively as the
“Parties”.
RECITALS
WHEREAS, Owners desire to develop, license,
procure and have constructed a two-unit, nuclear-fueled electricity
generation facility to be located at the existing site of the
Vogtle Electric Generating Plant in Waynesboro,
Georgia;
WHEREAS, it is the expectation of GPC that
construction of the new facility will begin upon issuance of a
certificate for public convenience and necessity by the Georgia
Public Service Commission, that all costs incurred in the
construction of the facility will be incurred in compliance with
such certificate, as it may be amended, and that all costs incurred
by GPC during the construction period and verified by the Georgia
Public Service Commission will be included in the rate base and
fully recovered;
WHEREAS, Westinghouse is engaged in the business
of designing, developing, supplying and testing commercial nuclear
facilities and has developed a pressurized water Nuclear Power
Plant known as the AP1000 for which the U.S. Nuclear Regulatory
Commission has issued a Standard Design Certification in the form
of a rule set forth in Appendix D to 10 C.F.R. Part
52;
WHEREAS, Stone & Webster is engaged in the
business of designing and constructing industrial and power
generation facilities;
WHEREAS, Westinghouse and Stone & Webster
desire to assist Owners in the licensing of and to design,
engineer, procure, construct and test two AP1000 Nuclear Power
Plants and related facilities, structures and improvements at the
Vogtle plant site in Georgia to be designated VEGP Units 3 and 4;
and
WHEREAS, Owners and Contractor now desire to
enter into this Agreement to provide for, among other things, the
design, engineering, procurement, installation, construction and
technical support of start-up and testing of equipment, materials
and structures comprising the Facility.
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:
ARTICLE
1
DEFINITIONS
Defined Terms . For
purposes of this Agreement, the following words and expressions
shall have the meanings hereby assigned to them, except where the
context clearly indicates a different meaning is
intended.
“ AAA ” means the American
Arbitration Association.
“[***]” has the meaning set forth in
Section 7.2(a).
“[***]” has the meaning set forth in
Section 7.2(a).
“[***]” has the meaning set forth in
Section 7.2(a).
“[***]” has the meaning set forth in
Section 7.2(a).
“[***]” has the meaning set forth in
Section 7.2(a).
“ AEA ” means the Atomic
Energy Act of 1954, 42 U.S.C. § 2011 et seq.
“ Affected Party ” has the
meaning set forth in Section 10.1.
“ Affiliate ” means, with
respect to any Party, any other Person that (a) owns or controls,
directly or indirectly, the Party, (b) is owned or controlled by
the Party, or (c) is under common ownership or control with the
Party, where “own” means ownership of fifty percent
(50%) or more of the equity interests or rights to distributions on
account of equity of the Party and “control” means the
power to direct the management or policies of the Party, whether
through the ownership of voting securities, by contract, or
otherwise.
“ Agreement ” has the meaning
set forth in the first paragraph above and shall include all
Exhibits and amendments hereto (including Change
Orders).
“ AP1000 Facility Information
” means the information within Contractor's Scope of Work, in
the form of electronic databases, documents, and drawings that
pertain to Facility design, engineering, licensing, analysis,
installation, performance, testing, operation and maintenance and
will be maintained by Contractor. Collectively, this information,
either directly or by reference, will reflect the current approved
AP1000 Nuclear Power Plant associated with Contractor’s Scope
of Work, including but not limited to applicable design work
performed under the NuStart program, at any point in time. The
deliverable portion of this information, as defined in Table 2 of
Exhibit A , will be provided to Owners via an Information
Management System (IMS).
“ AP1000 Nuclear Power Plant
” means an electric generating plant utilizing the AP1000
standard design as certified by the Nuclear Regulatory Commission
in Appendix D to 10 C.F.R. Part 52 and consisting of both the
Standard Plant and the Non-Standard Plant as further described in
Table 1 of Exhibit A .
“ Appendix B Subcontractors ”
has the meaning set forth in Section 5.2.
“ Arbitrable Claim” has the
meaning set forth in Section 27.5(a).
“ Arbitral Panel ” has the
meaning set forth in Section 27.5(b).
“ Business Day ” means every
calendar day other than Saturday, Sunday or a legal holiday
recognized by the State of Georgia.
“ Chairman ” has the meaning
set forth in Section 27.5(b).
“ Change ” has the meaning
set forth in Section 9.1.
"
Change Dispute " has the meaning set forth in Section
27.2.
"
Change Dispute Notice " has the meaning set forth in Section
27.2.
“ Change in Law ” means (a)
the adoption or change, after the Effective Date, of or in the
judicial or administrative interpretation of any Laws (excluding
any Laws relating to net income Taxes), which is inconsistent or at
variance with any Laws in effect prior to the Effective Date, (b)
the imposition after the Effective Date of any requirement for a
new Government Approval, or (c) the imposition by a Government
Authority after the Effective Date of any condition or requirement
(except to the extent that any conditions or requirements result
from the acts or omissions of Contractor or a Subcontractor or
Vendor) not required as of the Effective Date affecting the
issuance, renewal or extension of a Government Approval.
[***]
“ Change Order ” has the
meaning set forth in Section 9.5.
“ Claim ” has the meaning set
forth in Section 27.1.
“ Claim Threshold Amount ”
means (i) for a monetary Claim, that a Party has in good faith
alleged that such Claim involves an amount in controversy of
greater than [***] and/or (ii) for a Claim involving an adjustment
to the Project Schedule, that a Party has in good faith alleged
that such Claim involves an adjustment to the Project Schedule in
excess of [***]. If a Claim alleges both an amount and adjustment
to the Project Schedule in controversy, such Claim will fall below
the Claim Threshold Amount only if both (i) the amount in
controversy is equal to or less than [***] and (ii) the adjustment
to the Project Schedule in controversy is equal to or less than
[***].
“ Combined Operating License
” or “ COL ” means the combined
construction and operating license expected to be issued to the
Owners pursuant to 10 C.F.R. Part 52 for the
Facility.
“ Combined Operating License
Application ” or “ COLA ” means the
COL application for the Facility at the Site that will be submitted
to the NRC, as such application may be updated or changed from time
to time.
“ Commercial Information ”
has the meaning set forth in Section 19.7.
“ Confidential and Proprietary
Information ” means the terms of this Agreement and any
and all information, data, software, matter or thing of a secret,
confidential or private nature identified as confidential and/or
proprietary information or the like by the Party which claims the
information to be proprietary, relating to the business of the
disclosing Party or its Affiliates, including matters of a
technical nature (such as know-how, processes, data and
techniques), matters of a business nature (such as information
about schedules, costs, profits, markets, sales, customers,
suppliers, the parties’ contractual dealings with each other
and the projects that are the subject-matter thereof), matters of a
proprietary nature (such as information about patents, patent
applications, copyrights, trade secrets and trademarks), other
information of a similar nature, and any other information which
has been derived from the foregoing information by the receiving
Party; provided, however, that Confidential and Proprietary
Information shall not include information which: (a) is legally in
possession of the receiving Party prior to receipt thereof from the
other Party; (b) the receiving Party can show by reasonable
evidence to have been independently developed by the receiving
Party or its employees, consultants, Affiliates or agents; (c)
enters the public domain through no fault of the receiving Party or
others within its control; (d) is disclosed to the receiving Party
by a third party, without restriction or breach of an obligation of
confidentiality to the disclosing Party or (e) is legally required
to be disclosed; provided that the receiving Party uses its
reasonable best efforts to notify the other Party of a request or
subpoena for the production of any such information and provides
such Party with an opportunity to resist such a request or
subpoena.
“ Confidentiality Agreement ”
has the meaning set forth in Section 19.1(f).
“ Consortium Member ” has the
meaning set forth in the opening paragraph of this
Agreement.
“ Construction and Installation
Tests ” means those tests as provided in Section
11.2.
“ Construction Documents ”
means the detailed drawings and Specifications setting forth in
detail the requirements for the construction of the Non-Standard
Plant.
“ Construction Equipment ”
means equipment, machinery, materials and/or test equipment used in
the excavation, civil work, mechanical/electrical installation
and/or testing of the Facility, until such equipment is no longer
needed for tasks associated with Contractor’s Scope of Work,
and which will not become a permanent part of the
Facility.
“ Contract Price ” means the
sum of the [***].
“ Contractor ” has the
meaning set forth in the opening paragraph of this
Agreement.
“ Contractor Controlled Insurance
Program ” or “ CCIP ” has the meaning
set forth in Section 16.1.
“ Contractor Disclosable
Information ” has the meaning set forth in Section
19.3(a).
“ Contractor Event of Default
” has the meaning set forth in Section
22.2(a).
“ Contractor Interests ”
means Contractor and its (or their) members, and its (or their)
respective Affiliates, successors and assigns, including any tier
of the foregoing, its (or their) Subcontractors and Vendors of any
tier, and employees of all the foregoing, this being limited to
activity connected in any way with this
Agreement.
“ Contractor Non-Disclosable
Information ” has the meaning set forth in Section
19.3(a).
“ Contractor’s Authorized
Representative ” means the Person whom Contractor
designates in writing to act on behalf of Contractor under this
Agreement.
“ Contractor’s Costs ”
has the meaning described in Exhibit K .
“ Contractor’s Deductible
Portion ” means the portion of any applicable insurance
deductibles for which Contractor shall be responsible as provided
in Section 16.4(c).
“ Contractor’s Government
Approvals ” means the Government Approvals identified in
Exhibit C as being provided by Contractor.
“ Contractor’s Project
Director ” means the individual whom Contractor
designates in writing to administer this Agreement on behalf of
Contractor and who shall also serve as Contractor’s
Authorized Representative.
“ Correction Period ” means,
for a Unit, the period commencing on the Guaranteed Substantial
Completion Date for such Unit and ending upon
[***].
“ Corrective Action Program ”
means measures established to assure that conditions adverse to
quality, including, but not limited to, failures, malfunctions,
deficiencies, deviations, defective material and Equipment, and
non-conformances are promptly identified and corrected. The
measures shall assure that the cause of the condition is determined
and corrective action taken to preclude repetition. The Corrective
Action Program is part of the Quality Assurance
Program.
“ Critical Milestone ” means
each of the events set forth in Exhibit E-2
.
“ Dalton Utilities ” has the
meaning set forth in Section 8.1(a).
“ Dalton Utilities Assets ”
has the meaning set forth in Section 8.1(a).
“ Day ” as used in the
Agreement means a calendar day and includes Saturdays, Sundays and
legal holidays.
“ Delay Liquidated Damages ”
has the meaning set forth in Section 13.1.
“ Design Bases ” shall have
the meaning ascribed to it in 10 C.F.R. §
50.2.
“ Design Certification ”
means the standard design certification rule for the AP1000 Nuclear
Power Plant set forth in Appendix D to 10 C.F.R. Part 52 (71 FR
4464; January 27, 2006).
“ Design Control Document ”
or “ DCD ” means the AP1000 Nuclear Power Plant
Design Control Document, APP-GW-GL-700, Rev. 16, together with
Technical Report 134, revision 4.
“ Design Development Documents
” means those documents for the Non-Standard Plant consisting
of drawings, models, specifications, plans and other documents
necessary to fix and describe the Non-Standard Plant with respect
to the civil engineering, structural, instrumentation, control,
mechanical, electrical, plumbing, fire protection, acoustical and
life safety systems to be incorporated therein.
“ Designated Persons ” has
the meaning set forth in Section 4.2(a).
“ Development Agreement ”
means that certain Plant Vogtle Owners Agreement Authorizing
Development, Construction, Licensing and Operation of Additional
Generating Units, by and among the Owners, dated as of May 13,
2005.
“ Documentation ” means the
documents that Contractor has agreed to provide in its Scope of
Work, the categories of which are described in Table 2 of
Exhibit A .
“ DOE ” means the U.S.
Department of Energy.
“ DOR ” has the meaning set
forth in Section 25.4.
“ Early Completion Bonus ”
has the meaning set forth in Section 13.2.
“ Effective Date ” has the
meaning set forth in the opening paragraph of this
Agreement.
“ Environmental Laws ” means
any and all statutes, laws, treaties, decrees, executive orders,
rules, regulatory orders, directives, judgments, writs, approvals,
ordinances, policies, regulations, interpretations and permits or
other similar legal requirements as in effect, and as may be
amended during the term of this Agreement, of a court, arbitrator,
or governmental or political agency, body, or instrumentality with
jurisdiction over a Party, the Facility or any Hazardous Materials
connected with the Work, relating or applicable to pollution,
protection of the environment, and health and safety issues, and
including Releases or threatened Releases of Hazardous Materials,
Remediation due to Hazardous Materials, the manufacturing,
generation, use, processing, treatment, recycling, storage,
handling and disposal of Hazardous Materials, human or natural
exposure to Hazardous Materials, and interference with the use of
property caused by or resulting from Hazardous Materials.
Environmental Laws include without limitation the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C.
Section 9601 et seq.; the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. Section 136 et seq.; the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.; the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the
Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Federal Water
Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the Oil
Pollution Act, 33 U.S.C. Section 2701 et seq.; the Endangered
Species Act, 16 U.S.C. Section 1531 et seq.; the National
Environmental Policy Act, 42 U.S.C. Section 4321, et seq.; the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.
(to the extent relating to human exposure to Hazardous Materials);
the Homeland Security Appropriations Act of 2007, 109 P.L. 295; 120
Stat. 1355 (to the extent relating to the security of Hazardous
Materials); the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq., the Safe
Drinking Water Act, 42 U.S.C. Section 300f et
seq.; Emergency Planning and Community Right-to-Know Act, 42 U.S.C.
Section 11001 et seq.; Atomic Energy Act, 42 U.S.C. Section 2014 et
seq.; Nuclear Waste Policy Act, 42 U.S.C. Section 10101 et seq.;
and their state, tribal and local counterparts or equivalents and
regulations issued pursuant to any of those
statutes.
“ Equipment ” means
machinery, computer hardware and its associated software,
apparatus, components, articles, materials and items of any kind
that will become a permanent part of the Facility to be provided by
the Contractor to the Owners under this Agreement, but excluding
the Nuclear Fuel.
“ Equipment Warranty ” has
the meaning set forth in Section 14.1(a).
“ Equipment Warranty Period ”
means the Standard Equipment Warranty Period or the Extended
Equipment Warranty Period, as applicable.
“ Exhibit ” means each one of
the documents Exhibits A through Z annexed to this
Agreement.
“ Extended Equipment Warranty
Period ” has the meaning set forth in Section
14.3(a)(i).
“ Facility ” means the First
Unit and the Second Unit and the Shared Facilities, including the
systems, structures and components described in Table 1 of
Exhibit A .
“ Facility Purposes ” has the
meaning set forth in Section 19.2(a)(i).
“ Final Completion ” for a
Unit means that a Unit has achieved the conditions set forth in
Section 12.6(a).
“ Final Payment Invoice ” has
the meaning set forth in Section 8.4.
“ Final Safety Analysis Report
” means the final safety analysis report to be submitted by
Owners pursuant to 10 C.F.R. § 52.79(b) and as more
specifically defined in 10 C.F.R. §
50.34(b).
“[***]” has the meaning set forth in
Section 7.3(c).
“ Financing Parties ” means
the lenders and financing institutions providing construction,
interim and/or long-term financing for the Work and/or the Facility
or any portion thereof, including any financing in the form of a
synthetic lease or leveraged lease, and their assigns and a trustee
or agent acting on behalf of the lenders or financing
institutions.
[***]
“ Fitch Ratings ” means Fitch
Ratings Ltd.
[***]
“ Full Notice to Proceed ”
has the meaning set forth in Section 3.3(a).
“ Georgia PSC ” means the
Georgia Public Service Commission and its staff.
“ Georgia PSC Certification Order
” means the final, unappealable order issued by the Georgia
PSC with respect to GPC’s application for certification of
the recovery of the costs of the Units.
“ GPC ” has the meaning set
forth in the opening paragraph of this Agreement.
“ Government Approval ” means
an authorization, consent, approval, clearance, license, ruling,
permit, tariff, certification, exemption, filing, variance, order,
judgment, no-action or no-objection certificate, certificate,
decree, decision, declaration or publication of, notices to,
confirmation or exemption from, or registration by or with a
Government Authority relating to the design, engineering,
procurement, installation, construction, testing, start-up,
financing, completion, ownership, operation or maintenance of the
Facility.
“ Government Authority ”
means a federal, state, county, city, local, municipal, foreign or
other government or quasi-government authority or a department,
agency, subdivision, court or other tribunal of any of the
foregoing that has jurisdiction over Owners, Contractor, the
Facility or the activities that are the subject of this
Agreement.
“ Guaranteed Substantial Completion
Date ” means [***] 2016 for the First Unit and [***] 2017
for the Second Unit, as such dates may be extended pursuant to a
Change Order or otherwise pursuant to the terms
hereof.
“ Hazardous Materials ”
means any and all chemicals, constituents, contaminants,
pollutants, materials (including but not limited to petroleum or
petroleum products), and wastes and any other carcinogenic,
corrosive, ignitable, radioactive, reactive, toxic or otherwise
hazardous substances, mixtures (whether solids, liquids, gases),
daughter or degradation products or any similar substances now or
at any time subject to regulation, control, remediation or
otherwise addressed under Environmental Laws or considered to be
hazardous or otherwise harmful to human health or the environment
under such Environmental Laws and shall include those substances
defined as a “source”, “special nuclear” or
“by-product” material pursuant to Section 10 of the AEA
(42 U.S.C. § 2014 et seq .) and those substances
defined as “residual radioactive material” in Section
101 of the Uranium Mill Tailings Radiation Control Act of 1978 (42
U.S.C. §§ 7901 et seq .).
“ Hold Point ” means one of
the hold points for Equipment manufacturing and tests for selected
items of Equipment (including tests at the place of manufacture of
the Equipment).
“[***]” has the meaning set forth in
Section 9.1(d).
“[***]” has the meaning set forth in
Section 7.2(a).
“ Independent Engineer ”
means, if required by the Georgia PSC, Financing Parties or
otherwise, a nationally recognized independent engineering firm,
that is not an Affiliate of Owners or Contractor or a competitor of
Owners or Contractor in the nuclear power plant market. An
Independent Engineer shall be designated by the Georgia PSC,
Financing Parties or otherwise, as applicable, and be reasonably
acceptable to Owners and Contractor.
“[***]” has the meaning set forth in
Section 7.2(b).
“ Industry Codes and Standards
” means the codes and standards set forth in Exhibit N
.
“ Insolvent ” means, with
respect to a Person, that such Person shall have commenced a
voluntary bankruptcy proceeding, or an involuntary bankruptcy
proceeding shall have been commenced against such Person and an
order for relief shall have been entered as to such involuntary
bankruptcy, or there shall have been appointed a trustee or
receiver for such Person or for all or a substantial part of its
property, or a case or proceeding shall have been commenced by or
on behalf of such Person seeking reorganization, liquidation,
dissolution, winding-up or other such relief in respect of such
Person under a bankruptcy, insolvency or other similar act or law
of any jurisdiction.
“ Insurance Exclusions ” has
the meaning set forth in Section 14.1(b).
“ Invitees ” means, with
respect to a Person, such Personnel or other Persons as have been
permitted entry onto the Site by such Person.
“ ITAAC ” means the NRC
inspections, tests and analyses and their associated acceptance
criteria which are approved and issued for the Facility pursuant to
10 C.F.R. § 52.97(b)(1).
“ Joint Test Working Group ”
has the meaning set forth in Section 11.1(b).
“ Key Personnel ” has the
meaning set forth in Section 3.5(c).
“ kWe ” means kilowatt
electric.
“ kWh ” means
kilowatt-hours.
“ Law ” means (a) a
constitution, statute, law, rule, regulation, code, treaty,
ordinance, judgment, decree, writ, order, concession, grant,
franchise, license, agreement, directive, guideline, policy,
requirement, including without limitation Environmental Laws, or
other governmental restriction or any similar form of decision of
or determination by, or any binding interpretation or
administration of any of the foregoing by, a Government Authority,
whether now or hereafter in effect and (b) requirements or
conditions on or with respect to the issuance, maintenance or
renewal of a Government Approval or applications therefor, whether
now or hereafter in effect, including without limitation the
Georgia PSC Certification Order, the Licensing Basis, the Design
Bases for the Facility and the COL.
“ Licensed Operator ” has the
meaning set forth in Section 4.1(a).
“ Licensing Basis ” means the
ITAAC, COL and other NRC rules, regulations, and requirements
applicable to the Facility, including without limitation the Final
Safety Analysis Report, licensee’s written commitments for
ensuring compliance with and operation within applicable NRC
requirements and the Facility-specific Design Bases (including
without limitation all modifications and additions to such
commitments that are docketed and in effect over the term of the
COL).
“ Lien ” means a lien,
mortgage, pledge, encumbrance, charge, security interest, option,
right of first refusal, other defect in title or other restriction
of any kind or nature.
“ Limited Notice to Proceed ”
has the meaning set forth in Section 3.2(b).
“[***]” has the meaning set forth in
Section 11.6(b)(ii).
“[***]” has the meaning set forth in
Section 8.10.
“ Maintenance Procedures ”
means the procedures, written or electronic, required to perform
predictive, corrective, and preventive maintenance of the Facility
systems, components and structures, and those procedures required
for calibration and testing of instrumentation and measurement
systems and other components that are required for operation and
maintenance of the Facility.
“ Major Vendor ” means any
Vendor listed or identified in Exhibit P-1
.
“ Mandatory Spare Parts ”
means those items to be identified in Table 3 of Exhibit A
pursuant to Section 3.5(i) as Mandatory Spare Parts and required to
support initial plant startup and to perform routine maintenance of
the Equipment during the first two (2) years of plant
operation.
“ Material Safety Data Sheets
” are those sheets described in Section
3.5(o)(i).
“ Maximum Liability Amount ”
has the meaning set forth in Section 17.2(a).
“ [***] Moisture Carryover Amount
” has the meaning set forth in Section
11.6(c).
“[***]” has the meaning set forth in
Section 17.4(a)(1).
“ Member ” has the meaning
set forth in Section 27.5(b).
“ Milestone ” means an event
or series of events in the execution of the Work as set forth in
the Milestone Payment Schedule.
“ Milestone Payment ” means
the payment due with respect to a completed
Milestone.
“ Milestone Payment Schedule
” means that portion of Exhibit F that includes the
Milestones and associated Milestone Payments.
“[***]” has the meaning assigned in
Section 11.6(b)(i).
“[***]” has the meaning assigned in
Section 11.6(b)(i).
“ Moisture Carryover ” means
the amount of condensate that coexists with saturated steam in a
given system, determined by dividing the massflow rate of
condensate by the total massflow rate of steam and
condensate.
“ Moisture Carryover Guarantee
” has the meaning set forth in Section
11.6(c).
“[***]” has the meaning set forth in
Section 13.3(b).
“ Moisture Carryover Test ”
has the meaning set forth in Section
11.5(c)(iii).
“ Monthly Status Report ” has
the meaning set forth in Section 3.4(b).
“ Moody’s ” means
Moody’s Investor Services, Inc.
“ MWe ” means megawatt
electric.
“[***]” has the meaning set forth in
Section 7.2(a).
“ Net Unit Electrical Output
” means the electrical power of a Unit measured at the high
side of the main step-up transformer in accordance with the
requirements and conditions set forth in Exhibit L
.
“ Net Unit Electrical Output
Guarantee ” has the meaning set forth in Section
11.6(a).
“ Net Unit Electrical Output Liquidated
Damages ” has the meaning set forth in Section
13.3(a).
“ Net Unit Electrical Output Test
” has the meaning set forth in Section
11.5(c)(ii).
“ Non-Standard Plant ” means
the systems, structures and components listed on Table 1 of
Exhibit A as being supplied by Contractor that are not
included in the Standard Plant.
“ NRC ” means the U.S.
Nuclear Regulatory Commission and its staff.
“ NSSS Thermal Performance Test
” has the meaning set forth in Section
11.5(c)(i).
“ Nuclear Fuel ” means
fabricated nuclear fuel and services meeting the principal design
requirements referenced in the DCD.
“ Nuclear Incident ” means
any occurrence that causes bodily injury, sickness, disease or
death, or loss of or damage to property, or loss of use of
property, arising out of or resulting from the radioactive, toxic,
explosive, or other hazardous properties of source material,
special nuclear material, or by-product material which is used in
connection with the operation of the Facility. “Source
material”, “special nuclear material”, and
“by-product material”, as applicable to this Agreement
shall have those meanings assigned by the AEA.
“ NuStart ” means NuStart
Energy Development, LLC.
“ Operating Procedures ”
means the procedures, written or electronic, developed by
Contractor, in consultation with Owners, provided to Owners in
order to operate the Standard Plant and Non-Standard Plant under
normal, abnormal, emergency, shutdown, or startup conditions. The
Operating Procedures developed for this Agreement will address, at
a minimum, the programmatic requirements of the most current
version of NRC Regulatory Guide 1.33, as of the date of
Turnover.
“ Operation and Maintenance Manuals
” has the meaning set forth in Section
3.5(p).
“ Optional Spare Parts ”
means those items that may be required to perform major maintenance
of the equipment, such as periodic overhaul, or that could fail
based on industry experience and for
which replacement parts may require longer lead
times to obtain from the original equipment
manufacturers.
“ OSHA ” has the meaning set
forth in Section 23.2.
“ OSHA Standards ” has the
meaning set forth in Section 23.2(b).
“ Owner Controlled Insurance
Program ” or “ OCIP ” has the meaning
set forth in Section 16.1.
“ Owners ” means all of GPC,
Oglethorpe Power Corporation, the Municipal Electric Authority of
Georgia and Dalton Utilities; provided that GPC shall act as agent
for Oglethorpe Power Corporation, the Municipal Electric Authority
of Georgia and Dalton Utilities as set forth in Section 4.1(a).
“ Owner ” means any one of the Owners
individually.
“ Owners’ Authorized
Representative ” means the Person who Owners designate in
writing to act on behalf of the Owners under this
Agreement.
“ Owners’ Engineer ”
means the Person(s) selected by Owners to perform services for
Owners in connection with the Facility and solely for Facility
Purposes, who is subject to the prior written approval of
Contractor and who has entered into a non-disclosure agreement with
Contractor and Owners relative to AP1000 Facility Information, the
terms of which are at least as restrictive as those stated in
Article 19.
“ Owners’ Government
Approvals ” means the Government Approvals identified in
Exhibit C as being provided by Owners.
“ Owners’ Interests ”
means Owners and their respective members, Affiliates, successors
and assigns, including any tier of the foregoing, their
subcontractors (including suppliers) of any tier (other than
Contractor, Subcontractors and Vendors), and employees of all the
foregoing, this being limited to activity connected in any way with
this Agreement.
“ Ownership Agreement ” means
that certain Plant Alvin W. Vogtle Additional Units Ownership
Participation Agreement among the Owners, dated as of April 21,
2006.
“ Ownership Interest ” means
the respective ownership interest of an Owner in the Facility as
determined from time to time pursuant to the Development Agreement
and the Ownership Agreement.
“ Parent Company Guarantees ”
has the meaning set forth in Section 17.4(a).
“ Party ” and “
Parties ” has the meaning set forth in the opening
paragraph of this Agreement.
“ Payment Schedules " means the
schedules for payments set forth in Exhibit F
.
“ Performance Bonus ” has the
meaning set forth in Section 13.4.
“ Performance Guarantees ”
means [***].
“ Performance Liquidated Damages
” means [***].
“ Performance Standards ” has
the meaning set forth in Section 3.5(b).
“ Performance Tests ” means
the tests conducted as provided in Section
11.5(c).
“ Person ” means an
individual, corporation, company, partnership, joint venture,
association, trust, unincorporated organization or Government
Authority.
“ Personnel ” means, with
respect to a Person, such Person’s employees, officers,
directors, agents, personnel, representatives, subcontractors and
vendors of any tier.
“ Phase I ” means the portion
of the Work described in Section 3.2.
“ Phase II ” means the
portion of the Work described in Section 3.3.
“[***]” has the meaning set forth in
Section 7.2(a).
“ Power Revenue Bond Resolution
” means the Power Revenue Bond Resolution adopted by the
Municipal Electric Authority of Georgia on August 30, 1976 that, as
amended, restated and supplemented, authorizes the issuance of both
senior lien bonds and subordinated lien bonds for the purpose of
financing the Municipal Electric Authority of Georgia’s
“Project One” facilities.
“ Preoperational Test Group ”
has the meaning set forth in Section 11.3(b).
“ Preoperational Tests ”
means the tests conducted as provided in Section
11.3.
“ Price Adjustment Provisions
” means the terms set forth in Article 7 and Exhibit J
.
“ Price Book ” means
Contractor’s pricing proposal dated December 17, 2007, as
amended as of April 8, 2008, and the underlying data that has been
provided for Owners’ review, a copy of which shall be
retained in a format agreeable to the Parties by an escrow agent
mutually agreed to by the Parties.
“ Prime Rate ” means, 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.
[***]
“ Profit ” means the
aggregate of the profit for each Consortium Member as set forth in
the Price Book.
“ Progress Payment ” means
each of the progress payments set forth in Exhibit F
.
“ Project Safety Manual ” has
the meaning set forth in Section 3.5(r)(ii).
“ Project Schedule ” means
the schedule for the performance of the Work described in Section
3.4(a) and set forth in Exhibit E-1 . Exhibit E-1
also sets forth a critical milestone date that Owners must meet in
order to support the critical path schedule needed to achieve
Substantial Completion of a Unit by the Guaranteed Substantial
Completion Date for such Unit.
“ Project Security Plan ” has
the meaning set forth in Section 3.5(s)(ii).
“ Project Quality Assurance
Program” or “PQAP ” has the meaning set forth
in Section 5.1.
“ Project Quality Assurance Program
Interface Plan” or “ PQAPIP ” has the
meaning set forth in Section 5.1.
“ Property Tax ” has the
meaning set forth in Section 26.4.
“ Prudent Practices ” means
the practices, methods, standards and acts engaged in and generally
acceptable to the nuclear power industry in the United States,
including without limitation with respect to construction, that, at
a particular time, in the exercise of reasonable judgment in light
of the facts known at the time a decision was made could have been
expected to accomplish the desired result with due regard for
Industry Codes and Standards, manufacturers’ warranties and
applicable Law and consistent with good business practices,
reliability, economy and safety.
“ Punch List ” has the
meaning set forth in Section 12.5.
“ Punch List Withholding Amount
” has the meaning set forth in Section
8.9(d).
“ Purchase Orders ” means
Contract Purchase Order No. 8000007 between GPC and Stone &
Webster dated June 29, 2007 and Contract Purchase Order No. 8000014
between GPC and Westinghouse dated September 26, 2007; and change
orders issued thereunder.
“ Quality Assurance Program ”
has the meaning set forth in Section 5.1.
“ Ready for Performance Test Date
” has the meaning set forth in Section
11.5(d).
“ Ready for Start-up Test Date
” has the meaning set forth in Section
11.4(c).
“ Recipient ” has the meaning
set forth in Section 19.2(b)(i).
“ Recovery Plan ” has the
meaning set forth in Section 3.4(d)(i).
“ Reference Conditions ” has
the meaning set forth in Exhibit L .
“ Related Party Recipient ”
has the meaning set forth in Section 19.2(b)(i).
“ Release ” means spilling,
leaking, pumping, pouring, emitting, discharging, injecting,
escaping, leaching, dumping, exacerbating, aggravating, abandoning
or disposing into or migration within the
environment.
“ Remediation ” means the
investigation, removal, remediation and cleanup of, and other
corrective action for, Hazardous Materials and/or damage to the
environment caused by Hazardous Materials.
“ S&P ” means Standard
and Poor’s Rating Group.
“ Sales Tax ” means sales,
use or similar transactional tax imposed by any Taxing Authority on
Contractor, a Subcontractor, a Vendor or Owners with respect to the
transfer of property or the provision of services pursuant to the
Work.
“ Schematic Design Documents
” means the design documents for the Non-Standard Plant
consisting of drawings, models and other documents illustrating the
scale and relationship of the components of the Non-Standard
Plant.
“ Scope of Work ” means the
Contractor’s scope of work and supply as set forth in Table 1
of Exhibit A .
“ Services ” means all labor,
transportation, packaging, storage, designing, drawing, creating,
engineering, demolition, Site preparation, manufacturing,
construction, commissioning, installation, testing, equipping,
verification, training, procurement, Documentation, licenses to
intellectual property or otherwise and other work, services and
actions (including pursuant to any warranty obligations) to be
performed by Contractor hereunder (whether at the Site or
otherwise) in connection with, or relating to, the Facility (or any
component thereof, including any Equipment).
“ Services Warranty ” has the
meaning set forth in Section 14.2(a).
“ Services Warranty Period ”
has the meaning set forth in Section 14.3(b).
“ SGA ” means an amount for
Westinghouse’s sales, general and administrative costs as set
forth in Exhibit H .
“ Shared Facilities ” means
those systems, structures and components that will be utilized by
both Units.
“ Shaw Guarantee ” has the
meaning set forth in Section 17.4(a).
“ Site ” means the premises
(or portion thereof) owned or leased by the Owners on which the
Facility will be located, and including construction laydown areas,
as more specifically described in Exhibit D .
“Site” shall not include the portions of the VEGP site
dedicated solely to VEGP Units 1 and 2, except to the extent such
portions are needed for access, ingress, egress, or will otherwise
be impacted by the construction or operation of the
Facility.
“ Site Return Date ” means
the date on which care, custody and control of all or a portion of
the Site is returned to Owners by Contractor, which shall occur at
the earlier of the date when such portion of the Site is no longer
needed for completion of the Work and the date when Owners require
control of such portion of the Site to prepare for the arrival of
Nuclear Fuel. In the event
that the Site is to be returned to Owners by
Contractor in segments, the date that each segment is returned to
Owners shall be the Site Return Date for such
segment.
“ Site Turnover Date ” means
the date on which care, custody and control of the Site is turned
over by Owners to Contractor for the performance of the Work. In
the event that the Site is to be turned over by Owners to
Contractor in segments, the date that each segment is turned over
to Contractor shall be the Site Turnover Date for such
segment.
“ Software ” has the meaning
set forth in Exhibit M .
“ Southern Nuclear ” means
Southern Nuclear Operating Company.
“ Specifications ” means the
design and procurement specifications and drawings, and changes
thereto for the design, engineering, procurement, installation and
construction of the Facility.
“ SSDs ” has the meaning set
forth in Section 19.3(b)(viii).
“ Standard Equipment Warranty
Period ” has the meaning set forth in Section
14.3(a)(i).
“ Standard Plant ” means the
plant design features and buildings or structures in the scope of
the AP1000 Nuclear Power Plant certification as shown in the DCD
Site Plan, Figure 1.2-2.
“ Start-up Test Completion ”
has the meaning set forth in Section 12.3(a).
“ Start-up Test Group ” has
the meaning set forth in Section 11.4(b).
“ Start-up Tests ” means the
tests conducted as provided in Section 11.4.
“ Stone & Webster ” has
the meaning set forth in the opening paragraph of this
Agreement.
“ Subcontract ” means a
contract, purchase order or other writing between Contractor (or
one of its Subcontractors or Vendors) and a Subcontractor or Vendor
under which the Subcontractor or Vendor performs or provides a
portion of the Work.
“ Subcontractor ” means a
Person other than Contractor performing or providing any portion of
the Work on the Site, whether hired directly by Contractor or by a
Person hired by Contractor and including every tier of
subcontractors, sub-subcontractors and so forth; provided, however,
that Subcontractors shall not include the Personnel of a Vendor
that are on the Site solely for the purpose of supervising or
overseeing the installation of Equipment supplied by such Vendor,
or Personnel that are on the Site solely for the purpose of
delivering Equipment and are not involved in the unloading or
unpacking of such Equipment.
“ Substantial Completion ”
for a Unit means that the Unit shall have achieved the conditions
set forth in Section 12.4.
“ Substantial Completion Date
” for a Unit means the date on which Substantial Completion
of such Unit has occurred.
“ Tax ” or “
Taxes ” means all federal, state, provincial,
territorial, municipal, local or foreign income, profits,
franchise, gross receipts, environmental, customs, duties, net
worth, sales, use, goods and services, withholding, value added, ad
valorem, employment, social security, disability, occupation,
pension, real property, personal property (tangible and
intangible), stamp, transfer, conveyance, severance, production,
excise and other taxes, withholdings, duties, levies, imposts and
other similar charges and assessments (including without limitation
fines, penalties and additions attributable to or otherwise imposed
on or with respect to any such taxes, charges, fees, levies or
other assessments, and interest thereon) imposed by or on behalf of
a Taxing Authority.
“ Tax Returns ” means a
report, return, declaration, claim for refund, information report
or return or statement required to be supplied to a Taxing
Authority in connection with Taxes, including a schedule or
attachment thereto or amendment thereof.
“ Taxing Authority ” means a
Government Authority exercising authority to impose, regulate,
levy, assess or administer the imposition of a
Tax.
“ Technical Information ” has
the meaning set forth in Section 19.7.
“ Technical Support ” means
the furnishing of technical guidance, advice and counsel with
respect to Owners or their Personnel at the Site, and includes, but
is not limited to, recommending a course of action with respect to
Owners’ operation of a Unit or the Facility based upon
current design, engineering, construction and testing practices,
but does not include or require supervision, regulation, control,
arbitration or measurement of Owners’
Personnel.
“ Termination Costs ” means
with respect to a termination under Section 22.3, 22.4 or 22.5, the
aggregate of the following [***]. All such expenses, proceeds and
payment shall be substantiated by documentation reasonably
satisfactory to Owners and subject to audit as set forth in Article
25.
“ Third Party ” means a
Person other than Owners or Contractor or any other owners of VEGP
Units 1 and 2 who are not also Owners. Third Parties shall include
Owners’ and Contractor’s respective employees, agents
and personnel as well as Owners’ and Contractor’s
subcontractors and vendors of any tier.
“ Third Party Claim ” means a
claim, demand or cause of action of any kind and character made by
a Third Party and all damages, liabilities, losses, penalties,
costs and expenses (including attorneys’ fees) related
thereto.
“[***]” has the meaning set forth in
Section 7.3(a).
[***]
[***]
[***]
“ Toshiba Guarantee ” has the
meaning set forth in Section 17.4(a).
“ Turnover ” has the meaning
set forth in Section 12.1(a).
“ Turnover Packages ” means
the documentation (including without limitation drawings, start-up
procedures, log sheets, settings, and other items) in content
acceptable to Owner, submitted by Contractor to Owners pursuant to
Section 3.5(q), which demonstrates that the systems comprising the
Facility have been completed in accordance with this
Agreement.
“ Uncontrollable Circumstance
” has the meaning set forth in Section
10.1.
“ Unit ” means each AP1000
Nuclear Power Plant, as further described in Table 1 of Exhibit
A , to be constructed hereunder as either VEGP Unit 3 or VEGP
Unit 4. Each Unit includes the Equipment incorporated therein and
the mechanical, nuclear, electronic, and electrical processes to be
performed by such Equipment (individually and collectively).
“ First Unit ” refers to the first such Unit to
achieve Mechanical Completion pursuant to the Project Schedule and
“ Second Unit ” refers to the second such Unit
to achieve Mechanical Completion pursuant to the Project Schedule
regardless of whether such Units have different numerical
designations. “ Units ” means both the First
Unit and the Second Unit.
“ Unit Mechanical Completion
” has the meaning set forth in Section
12.2.
“ VEGP Units 1 and 2 ” means
the existing Vogtle Electric Generating Plant located in
Waynesboro, Georgia, designated as Units 1 and 2 as described in
Nuclear Regulatory Commission License Nos. NPF-68 and NPF-81,
respectively.
“ Vendor ” means a Person
providing or supplying all or a portion of the Equipment for any
portion of the Work whether hired directly by Contractor or by a
Person hired by Contractor and including every tier of
subsuppliers, sub-subsuppliers and so forth.
“ Warranties ” has the
meaning set forth in Section 14.2(a).
“ Warranty Period ” has the
meaning set forth in Section 14.3(b).
“ Westinghouse ” has the
meaning set forth in the opening paragraph of this
Agreement.
“ Witness Point ” means one
of the witness points for Equipment manufacturing and tests for
selected items of Equipment (including tests at the place of
manufacture of the Equipment).
“ Work ” has the meaning set
forth in Section 3.1.
ARTICLE
2
INTERPRETATION
2.1 Titles,
headings, and subheadings of the various articles and paragraphs of
this Agreement are used for convenience only and shall not be
deemed to be a part thereof or be taken into consideration in the
interpretation or construction of this Agreement.
2.2 Words
importing the singular only shall also include the plural and vice
versa where the context requires. Words in the masculine gender
shall be deemed to include the feminine gender and vice
versa.
2.3 Unless
the context otherwise requires, any reference to a document shall
mean such document as amended, supplemented or otherwise modified
and in effect from time to time.
2.4 Unless
otherwise stated, any reference to a party shall include its
successors and permitted assigns, and any reference to a Government
Authority shall include an entity succeeding to its
functions.
2.5 Wherever
a provision is made in this Agreement for the giving of notice,
consent or approval by a person, such notice, consent or approval
shall be in writing, and the word “notify” shall be
construed accordingly.
2.6 This
Agreement and the documentation to be supplied hereunder shall be
in the English language.
2.7 All
monetary amounts contained in this Agreement refer to the currency
of the United States unless otherwise specifically
provided.
2.8 Unless
the context requires otherwise, with regard to general oversight of
the Work, review of the drawings and specifications and other
documents, access to the Site and Work and other similar rights of
Owners, the term Owners shall be deemed to also include
Owners’ Authorized Representative, employees and agents. A
reference contained herein to this Agreement or another agreement
shall mean this Agreement or such other agreement, as they may be
amended or supplemented, unless otherwise stated.
2.9 Words
and abbreviations not otherwise defined in this Agreement which
have well-known nuclear industry meanings in the United States are
used in this Agreement in accordance with those recognized
meanings.
2.10 Neither
Contractor nor Owners 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 Owners and
Contractor and no presumption or burden of proof will arise
favoring or disfavoring a Party by virtue of the authorship of any
of the provisions of this Agreement.
2.11 The word
“hereby,” “herein,” “hereunder”
or any other word of similar meaning refers to the entire document
in which it is contained.
2.12 A reference to
an Article includes all Sections and Subsections contained in such
Article, and a reference to a Section or Subsection includes all
subsections of such Section or Subsection.
2.13 All exhibits
referred to in, and attached to, this Agreement are hereby
incorporated herein in full by this reference.
ARTICLE
3
SCOPE OF WORK
3.1
General Scope . Except as otherwise expressly set forth in
Article 4 as being the responsibility of the Owners or in
Owners’ scope as specified in Table 1 of Exhibit A ,
Contractor will, in accordance with this Agreement, perform or
provide or cause to be performed or provided the management, labor,
Equipment, Services and Technical Support required in connection
with the design, engineering, permitting, procurement,
construction, assembly, installation, training for operation of,
commissioning, Technical Support of start-up and testing and
completion of the Facility (including without limitation the
Standard Plant in accordance with the DCD) as specified in the
Scope of Work and in the other provisions of this Agreement (all of
the foregoing, collectively, the “Work”). The Work
includes all activities necessary to comply with the commitments in
the COLA applicable to the design, procurement, construction and
start-up of the Facility. The Work will be performed in two phases,
as more fully described in Sections 3.2 and 3.3.
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3.2
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Phase I-Limited Notice to
Proceed .
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(a)
Phase I Scope . Phase I of the Work will consist of
preliminary work commenced under the Purchase Orders and described
in Table 6 of Exhibit A including without limitation
Contractor’s engineering support and other services required
by Owners to support Owners’ Government Approvals for the
Facility, continuation of design work (other than design work
performed under the NuStart program), project management,
engineering and administrative support and the procurement of long
lead-time Equipment. Contractor shall provide support to Owners in
connection with such Government Approvals, including without
limitation the certification proceeding respecting the Facility
before the Georgia PSC scheduled for 2008. Such support may include
making Personnel available to testify at formal and informal
government proceedings, and providing the documents and information
reasonably requested by Owners, including without limitation review
of and comment on documents prepared by others, and amendments
thereto, to address formal NRC licensing questions on a schedule
that supports the Project Schedule, and other licensing support.
The Parties acknowledge that not all Phase I Work will be completed
under the Purchase Orders as of the Effective Date. The Parties
agree that, as of a date mutually agreed by the Parties prior to
issuance of the Full Notice to Proceed, the Purchase Orders shall
be terminated and the remaining work thereunder will be subsumed by
this Agreement. As of such agreed date, (i) the Purchase Orders
shall be terminated and the remaining Work will be performed under
the terms of this Agreement and (ii) the Contract Price shall be
increased through a Change Order issued pursuant to Article 9 to
account for the price of the remaining Phase I
Work not yet paid by or due from Owners pursuant
to the Purchase Orders that is subsumed by this
Agreement .
(b)
Phase I Timing . Phase I commenced upon the earliest
effective date of the Purchase Orders (such commencement to be
deemed the “Limited Notice to Proceed”). The occurrence
of the Limited Notice to Proceed does not require Owners to issue a
Full Notice to Proceed. Phase I will end upon the earlier of
issuance of the Full Notice to Proceed or termination of this
Agreement in accordance with Article 22.
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3.3
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Phase II-Full Notice to
Proceed .
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(a)
Phase II Scope and Timing . Phase II of the Work will
consist of the remainder of the Work to commence upon Owners’
issuance of a written notice to Contractor to commence such work
(the “Full Notice to Proceed”). Phase II shall continue
through Final Completion unless this Agreement is terminated
earlier in accordance with Article 22.
(b)
Full Notice to Proceed . Owners will provide at least thirty
(30) Days' notice prior to the expected issuance of the Full Notice
to Proceed. Failure to issue the Full Notice to Proceed by [***]
shall constitute a Change and shall entitle Contractor to seek a
Change Order pursuant to Article 9. After the Owners’
issuance of the Full Notice to Proceed, Contractor shall perform
only that portion of the Work that is allowed by Law and Government
Approvals, including, but not limited to, the
COL.
(c)
Notice of Commencement . Contractor shall, in addition to
any other requirements of Law, at its expense and prior to starting
work at the Site, file a “Notice of Commencement” with
the Clerk of the Superior Court for Burke County, and post a copy
of said notice in a prominent location at the Site, in accordance
with O.C.G.A. Section 44-14-361.5(b). A stamped, filed copy of such
Notice of Commencement, and a photograph of such notice posted at
the Site, shall be furnished to the Owners prior to the start of
any Work at the Site and as a condition precedent to any further
payments under this Agreement.
(d) Owners
shall provide Contractor at least thirty (30) Days notice prior to
the date on which Contractor may commence the pouring of first
concrete for the First Unit .
(a)
Project Schedule . The Project Schedule is attached to this
Agreement as Exhibit E-1 . The Project Schedule (and any
revisions thereto) incorporates a Primavera (level III integrated
CPM) schedule, linked to Intergraph Design Review 3D modeling
package to enable 4D (3D v. time) visualization. The Project
Schedule (and any revisions thereto) will include a construction
plan and schedule report. Contractor shall perform the Work under
this Agreement in accordance with the Project Schedule. Contractor
shall not change the Guaranteed Substantial Completion Dates, any
Critical Milestones or the Milestone Payment Schedule without the
prior written approval of Owners except as otherwise expressly
permitted by this Agreement. Changes made to the Project Schedule
by Contractor also shall not adversely affect the time allotted for
the performance by Owners of any Owners’ responsibilities
under this Agreement without the Owners’ prior written
approval.
(b)
Monthly Status Report . On or before the tenth (10th) Day of
each month (unless some other frequency is agreed upon by the
Parties), Contractor shall submit to Owners, for Owners’
review and comment, a written status report covering the prior
month (a “Monthly Status Report”). The report shall be
prepared in an electronic format reasonably acceptable to Owners
and substantially in the form of Exhibit W , and shall
include (i) a description of the progress of the Work against the
Project Schedule, including
critical path activities interconnected by
schedule logistics, (ii) a statement of significant issues which
remain unresolved and Contractor’s recommendations for
resolving the same, (iii) a summary of significant Facility events
which are scheduled or expected to occur during the following
interval, and (iv) additional information reasonably requested by
Owners. Such report also shall include any events or circumstances
involving Contractor or Subcontractor Personnel reported to
Contractor with respect to Work performed at the Site and/or
reportable by Contractor to the NRC or another Government Authority
along with a listing and discussion of any OSHA reportable injuries
for that month for Work performed at the Site. The Project Schedule
and Monthly Status Reports shall be available to Owners in paper
form, at the Site (following Full Notice to Proceed) or such other
location mutually agreed upon by the Parties.
(c)
Status Meetings . Following the issuance of the Limited
Notice to Proceed, Contractor shall attend and participate in
regular meetings with Owners which shall occur monthly (or upon
such other interval as the Parties agree) for the purpose of
discussing the relevant Monthly Status Report (if applicable) and
anticipating and resolving problems. Such meetings may be held by
conference call or video conference. Contractor shall prepare and
promptly deliver to Owners written minutes of each meeting, which
Owners shall respond to promptly in writing should they have
comments. In addition, following the Full Notice to Proceed,
Contractor shall attend and participate in weekly (or upon such
other interval as the Parties agree) meetings with Owners for the
purpose of discussing the status and progress of the Work.
Contractor shall also invite Owners to attend regularly scheduled
meetings with Subcontractors and Vendors at which the status and
progress of the Work is discussed.
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(d)
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Schedule Delay; Recovery
Plan .
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(i) If,
during the performance of the Work, Contractor is delayed such that
the critical path for Substantial Completion of a Unit is projected
to finish [***] or more after the Guaranteed Substantial Completion
Date for such Unit, or the critical path for Unit Mechanical
Completion for a Unit is projected to cause [***] or more delay
(after the Guaranteed Substantial Completion Date for such Unit) in
achieving Substantial Completion of such Unit, for any reason (as
indicated in Contractor’s Monthly Status Report or as
recognized and reported by either Party immediately upon the
realization of such projected delay), Owners may require Contractor
to prepare a proposed plan that feasibly explains how Contractor
will regain compliance with the critical path schedule (each such
plan a “Recovery Plan”), and Contractor will
participate in such meetings as Owners may reasonably require in
connection with the production and implementation of such Recovery
Plan.
(ii) Contractor
will submit such proposed Recovery Plan to Owners within a
reasonable period of time (considering the complexity of the issues
involved) after receiving notification from Owners of its
requirement but not more than [***] after notification by Owners.
Upon receipt of such proposed Recovery Plan, Owners will review and
comment upon the same. Contractor will accept and incorporate
Owners’ reasonable comments and resubmit, within [***] of
receiving such comments, the proposed Recovery Plan to Owners.
Contractor will implement the approved
Recovery Plan, and will use commercially
reasonable efforts to adhere to such Recovery Plan in order to
regain compliance with the critical path schedule, including
without limitation the utilization of additional shifts, additional
manpower, overtime and re-sequencing of activities. Owners’
approval of the Recovery Plan will not relieve Contractor of any of
its obligations under this Agreement.
(iii) Owners
may request that Contractor accelerate any aspect of the Project
Schedule via a request for a Change Order pursuant to Article 9.
Contractor shall use commercially reasonable efforts to meet
Owners’ request; however, the extent of any acceleration and
the means for achieving such acceleration shall be subject to the
mutual agreement of the Parties, such agreement not to be
unreasonably withheld or delayed. In the event that the Parties
agree upon the acceleration of the Project Schedule, and other than
in connection with a recovery from delays caused by Contractor or
its Personnel, such acceleration shall constitute a Change and
shall entitle Contractor to seek a Change Order pursuant to Article
9.
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3.5
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Contractor
Responsibilities .
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(a)
Engineering and Design Services . Contractor represents and
warrants that it has thoroughly familiarized itself with the Scope
of Work, and agrees that it will provide the engineering and design
services necessary for the Work (including without limitation
applicable design work performed under the NuStart program) that
meet the requirements set forth as the responsibilities of
Contractor in the Scope of Work; provided, however the DOE funded
component of the cost of work performed under cooperative
agreements with the DOE, or work performed under contract between
Contractor and NuStart, shall not be included in the Contract
Price. Contractor will cooperate with the engineering efforts of
Owners, NuStart and the Independent Engineer and will assist
Owners’ legal, financial, design and construction consultants
and other Designated Persons during the design and construction of
the Facility. If such requested cooperation and assistance is not
specifically described or listed in the Scope of Work, such Work
shall be done on a [***]. Engineering work requiring certification
by Law shall be certified by professional engineers, licensed and
properly qualified to perform such engineering services, or as
otherwise required by Law. Contractor shall also comply with
applicable Laws respecting licensing of general
contractors.
(i)
Documentation – Standard Plant . Table 2 in Exhibit
A lists the categories and types of documentation that will be
provided to Owners for the Standard Plant as part of this
Agreement. Documentation that is provided as part of the Standard
Plant will not be subject to Owners’ review and approval
process.
(ii)
Documentation Non-Standard Plant . Table 2 in Exhibit
A lists the categories and types of documentation that will be
provided to Owners for the Non-Standard Plant as part of this
Agreement. Contractor will prepare, by the date specified in the
Project Schedule, Schematic Design Documents, Design Development
Documents, and Construction Documents. Contractor shall identify in
the drawings or documentation the originator of the drawings and/or
documentation if the originator is other than Contractor.
Documentation that is provided as part of the Non-Standard
Plant
will be subject to Owners’ review and
acceptance process set forth in Section 3.5(a)(iii)
hereof.
(iii)
Owners’ Review and Acceptance of Schematic Design
Documents, Design Development Documents and Construction Documents
Non-Standard Plant .
(A) Contractor’s
P&IDs, general arrangement, one-line drawings, system design
specifications and procurement specifications for the Non-Standard
Plant shall be submitted to Owners for review and acceptance of
general design, general dimensions, and apparent suitability in
accordance with this Agreement, such acceptance not to be
unreasonably withheld. Owners shall review and provide changes to
such documents within [***] of receipt from Contractor. Contractor
shall make changes to such documents that Owners determine in their
reasonable judgment are necessary consistent with Prudent Practices
and any such change shall be deemed to be a Change and shall
entitle Contractor to seek a Change Order pursuant to Article 9 if
the change to the document impacts the Project Schedule, increases
the costs of Equipment or materials or requires additional labor
hours for installation; provided that if the change is required so
that the Work conforms to the Performance Standards, Contractor
shall not be entitled to a Change Order. If Owners request any
changes after such [***] period, and such request delays the
performance of the Work in accordance with the Project Schedule,
such request shall constitute a Change and shall entitle Contractor
to seek a Change Order pursuant to Article 9. Notwithstanding the
foregoing, to the extent that a change required by Owners pursuant
to this paragraph conflicts with any other provision of this
Agreement or obligation of Contractor hereunder (other than a
change required to conform the Work to the Performance Standards),
such required change shall constitute a Change and shall entitle
Contractor to seek a Change Order pursuant to Article
9.
(B) Owners
reserve the right to review and express any objections to the
Schematic Design Documents, Design Development Documents and
Construction Documents for the Non-Standard Plant. Upon request of
Owners, Contractor shall submit such documents to Owners for review
and comment. Contractor shall make changes to documents that Owners
determine in their reasonable judgment are necessary for
operability and maintainability purposes. In the event that
Owners’ review delays the performance of the Work in
accordance with the Project Schedule, such delay shall constitute a
Change and shall entitle Contractor to seek a Change Order pursuant
to Article 9. In addition, to the extent that a change required by
Owners pursuant to this paragraph following the Effective Date has
an effect on the Work of the type described in Section 9.3, such
required change shall constitute a Change and shall entitle
Contractor or Owners, as the case may be, to seek a Change Order
pursuant to Article 9.
(C) Owners’
acceptance of Documentation under this Section 3.5 shall mean that
Owners have no objection to the adoption or use by Contractor of
such Documentation at Contractor’s own risk and
responsibility. Contractor shall have no claim relating to any such
matter or document accepted, including without limitation any
claims relating to the failure or inefficiency of any method
accepted. The acceptance by the Owners shall not in any way be
deemed to release the Contractor from full responsibility
for
complete and actual performance of the Work in
accordance with the terms of this Agreement; neither shall such
acceptance release the Contractor from any liability placed upon
Contractor by any provision of this Agreement, including without
limitation Contractor’s obligations of indemnity; provided,
however, that if (i) Owners direct Contractor to use documentation
or data to which Contractor has raised reasonable objections or
(ii) Owners supply documentation or data to Contractor on which
Contractor is entitled to rely and such documentation or data is in
error and such error would not have been reasonably discernable
from a review of such documentation or data by a contractor using
Prudent Practices, Contractor shall not be responsible for any
errors or omissions that result from the use of such documentation
or data that Owners have directed Contractor to use or on which
Contractor was entitled to rely. Subject to the preceding sentence,
the Parties acknowledge that Owners’ judgments regarding the
Contractor submitted documents are administrative in nature and do
not relieve Contractor of its obligations under this
Agreement.
(D) Owners’
acceptance of Documentation shall not relieve the Contractor of
responsibility for design, engineering, Equipment, installation,
construction, start-up and testing that meet the requirements of
this Agreement and that will operate satisfactorily under the
specified conditions, nor will it relieve Contractor from
responsibility for detail dimensions. Contractor shall maintain in
good order and make available to Owners at the Site at least one
record copy of the Schematic Design Documents, Design Development
Documents and Construction Documents as part of the Documentation
(which may be in whole or in part in electronic
form).
(iv)
AP1000 Facility Information . The AP1000 Facility
Information shall be controlled and maintained by Contractor for
such period of time as is required by Contractor’s Quality
Assurance Program or, for information not covered by such Quality
Assurance Program, in accordance with Contractor’s document
retention procedures. The AP1000 Facility Information shall contain
each Facility-deliverable document and information, either directly
or by reference, relative to Facility and Site specific engineering
and design, licensing, project management, schedule, supply chain
management, fabrication, construction, testing, commissioning and
startup. A means to access and print out documentation and
information in the AP1000 Facility Information shall be made
available to Owners through an information management
system.
(b)
Performance Standards . All Work performed under this
Agreement shall be performed (i) in a professional, prudent and
workmanlike manner by qualified persons using competent,
professional knowledge and judgment at the degree of skill and care
customary to the nuclear power industry, and (ii) in accordance
with Law, this Agreement (including without limitation the
Documentation), applicable Industry Codes and Standards and Prudent
Practices (the “Performance Standards”). In the event
of a conflict between any of the authorities in the foregoing
sentence, applicable Laws shall control over the terms of this
Agreement, Prudent Practices and Industry Codes and Standards; the
terms of this Agreement shall control over Prudent Practices and
Industry Codes and Standards; and Industry Codes and Standards
shall control over Prudent Practices; provided, however, that
Contractor shall bring any conflict it identifies to the attention
of Owners before taking action with respect to such conflict that
would be contrary to any of the Performance
Standards. Except as otherwise expressly stated
in this Agreement, the terms of this Agreement excluding the
Exhibits shall control over any conflicting provisions contained in
the Exhibits.
(c)
Contractor’s Key Personnel and Labor . Exhibit
B contains a chart of Contractor’s intended organization
for its performance under this Agreement, including those positions
to be designated as “key” management for the
performance of the Work (the “Key Personnel”).
Contractor shall provide the resumes of the persons filling the Key
Personnel positions to Owners for their approval, which approval
shall not be unreasonably withheld. Owners will review these
resumes of Key Personnel and provide Contractor with comments
and/or approval within [***] from the date of submission of such
resumes to Owners. Once Owners have approved any such person,
Contractor shall not remove or replace such person from such
position without Owners’ prior written consent, which shall
not be unreasonably withheld. If at any time during the performance
of the Work, any of Contractor’s personnel becomes, for any
reason, unacceptable to Owners, then, upon notice from Owners,
Contractor will replace such unacceptable individual with an
individual reasonably acceptable to Owners. If at any time during
the performance of the Work any of the Key Personnel should no
longer be available to perform services in connection with the Work
notwithstanding the commercially reasonable efforts of Contractor,
then Contractor will replace such individual with an individual
acceptable to Owners. The costs associated with the addition,
replacement or renewal of any such personnel, whether at
Owners’ request or otherwise, will be borne by Contractor.
Contractor’s Project Director shall act as Contractor’s
Authorized Representative.
(d)
Control of Work . Subject to the requirements of this
Agreement, Contractor shall be solely responsible for and shall be
free to choose construction means, methods, techniques, sequences,
procedures, and safety and quality assurance and quality control
programs in connection with the performance of the Work. Contractor
shall furnish the labor, tools, equipment and materials, and engage
in such other activities necessary to perform the Work properly and
safely and shall be solely responsible for the actions of
Contractor, its Subcontractors, Vendors and the Personnel and
Invitees of any of them subject to Section 15.1(a). Contractor, in
performing the Work, is and shall perform as an independent
contractor and shall not act as an agent or employee of Owners,
except as provided in Section 5.1.
(e)
Suitability of the Site . Based on the information provided
to Contractor pursuant to Section 4.1(d), Contractor has conducted
a reasonable investigation of the Site, has notified Owners of any
Site conditions that were discernible from such investigation that
will affect the cost or schedule for the construction of the
Facility and has factored such Site conditions into the
Documentation for the Facility. Following the Effective Date, any
subsurface or other site conditions discovered at the Site or
changes in the Site parameters that do not conform to the
information provided by Owners (or not discernible from
Contractor’s investigation) shall constitute a Change and
shall entitle Contractor to seek a Change Order pursuant to Article
9. Subject to Owners’ obligations and Contractor’s
rights under this Section 3.5(e), Contractor will (i) be
responsible for the removal of obstructions from the Site necessary
for performance of the Work, (ii) arrange and pay for disposal of
sewage and wastes as necessary, (iii) subject to Owners’
rights in
Section 21.1(b), provide for the procurement of
or disposal of, as necessary, soil, gravel and similar materials,
and (iv) provide adequate treatment of and protection against water
runoff, including without limitation storm water and wastewater,
resulting from Contractor’s and/or its Subcontractors’
work. Contractor will provide for the collection, treatment and
disposal of groundwater resulting from Contractor’s and its
Subcontractors’ work.
(f)
Equipment . Contractor will procure in Contractor’s
name, pay for, receive, transport to the Site and store as an
independent contractor and not as agent for Owners, the Equipment
described as within Contractor’s Scope of Work in Exhibit
A , as well as materials and supplies and the manufacturing and
related services (whether on or off the Site) for construction of
and incorporation into the Facility which are required for
completion of the Work in accordance with this Agreement and are
not explicitly specified as being furnished by Owners pursuant to
Article 4. The components listed below, that are common to both
Units, shall be supplied by the same Vendor, on an individual item
basis, for both Units; [***]
The components listed below, on an individual
basis, will be supplied by same Vendor for each Unit,
[***].
The
components or items of equipment listed below can be supplied from
a variety of Vendors:
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Build-to-print heat exchangers
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Bulk purchase commodities (cable, steel, piping,
cement, etc.)
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Commodity components such as non-safety valves,
switches, etc.
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(g)
Inspection, Component Testing and Expediting . This Section
is intended to address components testing only; Sections 3.5(k) and
(l) and Article 11 address Facility testing.
(i)
Testing Responsibilities . Contractor will perform the
inspections, component testing, expediting, quality surveillance
and traffic services as necessary for the performance of the Work.
Contractor’s responsibilities under this Section shall
include inspecting and testing such materials and equipment as are
customarily inspected and/or tested in accordance with Prudent
Practices in connection with work of the same nature as the Work,
including inspecting the Work in progress at intervals appropriate
to the stage of construction, fabrication or shipment on or off the
Site as necessary to ensure that such Work is proceeding in
accordance with this Agreement and the Project Schedule and to
protect Owners against defects and deficiencies in such
Work.
(ii)
Owners’ Right to be Present . Contractor will notify
Owners via updates to the Project Schedule of any testing to or
inspections of any components of the Work, provided that such
updates shall be made at least (A) [***] in advance of such testing
or inspection, for any testing or inspection outside the Site; and
(B) three (3) Business Days in advance of such testing or
inspection, for any testing or inspection at the Site. Owners will
have continuous access to the updated Project
Schedule. Owners and the Independent Engineer
shall each have the option of being present at the tests and
inspections on or off the Site, at the work facilities of Major
Vendors and Appendix B Subcontractors, and, in the event that the
progress and quality of the Work are not proceeding in accordance
with this Agreement and the Project Schedule, in addition to any
other remedies available under this Agreement, shall be entitled to
make recommendations to Contractor for the purpose of remedying
such deficiencies. No inspection nor observance of any inspection
or testing performed or failed to be performed by Owners, its
Designated Persons or the Independent Engineer or any of their
respective representatives hereunder shall be deemed to constitute
a waiver of any of Contractor’s obligations under this
Agreement or be construed as an approval or acceptance of the
Work.
(h)
Temporary Facilities, Utilities, Fuels, Chemicals and
Consumables . Exhibit A specifies the division of
responsibilities between Owners and Contractor for utilities during
construction and for the provision of temporary facilities, water,
lubricants, fuel, chemicals and consumables during construction and
testing of the Facility.
(i)
Mandatory Spares . Within [***] after finalization of the
AP1000 Nuclear Power Plant design, Contractor shall provide Owners
with a list of spare parts for the Facility referred to as
“Mandatory Spare Parts”. At that time, Contractor and
Owners shall negotiate in good faith to reach mutual agreement on
the price for such Mandatory Spare Parts. As part of
Contractor’s Scope of Work, Contractor shall provide the
Mandatory Spare Parts to Owners by the completion of the Start-up
Tests or as otherwise agreed to in the Project Schedule. All of the
foregoing spare parts will be considered to be parts supplied to
Owners under this Agreement, and title thereto will pass to Owners
in accordance with Section 21.1(a). During the Standard Equipment
Warranty Period, Owners shall use commercially reasonable efforts
to maintain an inventory of spare parts equivalent to the Mandatory
Spare Parts and shall make such spare parts available to
Contractor. If Contractor uses any of Owners’ Mandatory Spare
Parts to perform the Work (including without limitation Work
pursuant to the Warranties), Contractor will promptly replace such
parts with functionally equivalent parts reasonably acceptable to
Owners or parts otherwise acceptable to Owners.
(ii)
Optional Spare Parts . Within [***] after finalization of
the AP1000 Nuclear Power Plant design, Contractor will provide
Owners with a list of Optional Spare Parts that are recommended by
Contractor and Vendors supplying the Equipment comprising the
Facility. Within one hundred and eighty (180) Days following
receipt of Contractor’s list or as otherwise agreed to in the
Project Schedule, Owners shall identify to Contractor the Optional
Spare Parts which Owners want Contractor to procure, if any, and
the Parties shall determine a mutually agreeable delivery schedule
for such Optional Spare Parts. Owners may, in their sole
discretion, procure any of such recommended long-term operational
spare parts directly from the vendors thereof. Owners will make the
spare parts so procured available to Contractor for use during the
Work (as supplements for the spare parts procured by Contractor
under Section 3.5(i)(i)). Contractor shall have the right to use
spare parts that are in Owners’ inventory
specifically for use on the Units during the
performance of the Work or to remedy a Warranty item; however,
prior to Substantial Completion of the Second Unit or in response
to the use of a spare part during a Warranty repair, Contractor
shall repair, replace and/or pay fair market value for such spare
parts used by Contractor. Contractor will coordinate with Owners
concerning the delivery and storage of spare
parts.
(iii) Contractor
shall not use any spare parts dedicated to VEGP Units 1 and 2
except on written terms and conditions acceptable to
Owners.
(j)
Personnel Training . Commencing as early as necessary in
order to support the Facility’s start-up and testing
operations, Contractor shall provide [***] training in the
operation and maintenance of the component equipment comprising the
Facility as requested by Owners.
(k)
Preoperational Testing, Start-Up and Initial Operation . The
Work shall include Technical Support of Owners for preoperational
testing and start-up of each Unit and its components, in accordance
with Article 11, the calibration of controls and equipment, and
initial operation of a Unit through Substantial Completion of the
Unit. The need for repairs, adjustments or other corrections to the
Facility due to the fault of Owners’ Personnel or
Uncontrollable Circumstances shall constitute a Change and shall
entitle Contractor to seek a Change Order pursuant to Article 9.
Subject to such right to seek a Change Order, Contractor will be
responsible for any repairs, adjustments and other non-operational
Work required in connection with such start-up and initial
operation. In addition, Contractor shall be responsible to arrange
for one or more designated representatives of a Vendor to be
present as necessary to advise upon technical issues relating to
the start-up, commissioning and testing of such Vendor’s
Equipment. Contractor will promptly inform Owners of any
anticipated changes to the testing dates shown on the Project
Schedule. Owners will be permitted to have their own Personnel and
other designated Persons (including personnel of the Independent
Engineer) on the Site to observe and verify the start-up and
synchronization activities.
(l)
Performance Testing . The Work shall include Technical
Support for the performance, and re-performance, as necessary, of
the Performance Tests required by the provisions of Article 11.
Owners will be permitted to have their own Personnel and other
designated Persons (including without limitation personnel of the
Independent Engineer) on the Site to observe and verify such
testing.
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(m)
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Clean-Up and Waste
Disposal .
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(i)
During Work’s Progress . During the performance of the
Work, Contractor shall keep the Site and any other area utilized by
Contractor during construction clean and free from accumulations of
waste materials, (other than Hazardous Materials, which are
addressed in Section 3.5(o)) rubbish and other debris resulting
from the Work. As part of the Work, in accordance with
Owners’ Site rules and procedures (which shall be provided to
Contractor), Contractor will remove such rubbish, waste materials
and debris on a reasonably regular basis, or as may otherwise
reasonably be required by Owners, and dispose of the same in
accordance with this Agreement and
applicable Laws. In the event that following
notice by Owners to Contractor, Contractor should fail within a
reasonable period of time to clean or clear the Site and other
affected areas as required above, Owners may perform such work and
charge Contractor with the reasonable cost of performing such
work.
(ii)
Prior to Substantial Completion . Prior to Substantial
Completion of a Unit, Contractor will completely clean the vicinity
of the Unit, and any other area utilized by Contractor during
construction of the Unit, and will remove the waste materials
(other than Hazardous Materials, which are addressed in Section
3.5(o)), rubbish, Contractor’s tools, Construction Equipment,
machinery, surplus materials and other debris from the vicinity of
the Unit and handle or dispose of the same, in accordance with
applicable Laws. Contractor will leave the Facility and the Site in
a clean, safe and useable condition. If Contractor has failed to
diligently begin its obligations under this Section within [***] or
complete its obligations within [***] after Substantial Completion
of a Unit, then Owners, after having given prior notice to
Contractor and a reasonable opportunity to cure, may clean the
vicinity of the Unit and remove the waste materials, rubbish,
Contractor’s tools, Construction Equipment, machinery,
surplus materials and other debris from the vicinity of the Unit.
The reasonable costs incurred by Owners to take such actions will
be for the account of Contractor, and Contractor will reimburse
such amounts to Owners. The taking of such actions by Owners will
not relieve Contractor of its obligations under this Agreement and
applicable Laws.
(n)
Equipment Storage . Contractor shall comply with the
receipt, storage and maintenance provisions specified in
Contractor’s “Construction Execution Plan,” as
identified in Table 1 of Exhibit A, and the Quality
Assurance Program. During the construction of the Facility,
Contractor shall warehouse or otherwise provide appropriate
storage, in accordance with manufacturers’ recommendations,
for the materials, supplies, Equipment and spare parts to be
incorporated into the Facility and/or required for permanent and
temporary construction.
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(o)
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Hazardous Materials
.
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(i)
Material Safety Data Sheets . To the extent required by
applicable Law, Contractor shall provide to Owners the
“Material Safety Data Sheets” covering Hazardous
Materials to be furnished, used, applied or stored by Contractor,
or its Subcontractors, at the Site in connection with the Work.
Contractor shall coordinate with Owners’ Authorized
Representative to provide a listing of such Hazardous Materials and
their quantities at the Site for purposes of chemical inventory
reporting pursuant to 40 C.F.R. Part 370 and similar state
regulations. Unless authorized in writing by Owners in advance,
Contractor shall not use asbestos in the
Facility.
(ii)
Preventative Measures . Contractor shall take measures
necessary to prevent the Release by Contractor, its Subcontractors,
or by the Personnel or Invitees of any of them, of Hazardous
Materials at the Facility or adjacent areas in violation of
applicable Laws. When the use or storage of explosives or other
Hazardous Materials or equipment is necessary for the performance
of the Work, Contractor shall
exercise the utmost care and shall carry on its
activities under the supervision of properly qualified personnel in
accordance with applicable Laws. Under no circumstances shall
Contractor allow explosives or blasting on the Site without the
specific written consent in each instance of Owners. Contractor
shall provide not less than three (3) Business Days’ notice
of each proposed use of explosives or blasting, and each such use
shall require a separate specific written acceptance by the Owners.
In addition, Contractor shall, no less than one hour prior to each
blasting or explosive event, contact the VEGP Unit 1 Shift
Supervisor by telephone to provide notification of such event (if
the Shift Supervisor is unavailable, Contractor shall call the VEGP
Unit 1 Unit Operator). Before Unit Mechanical Completion of the
Second Unit, Contractor shall remove from the Site and surrounding
area in accordance with applicable Laws explosives and other
Hazardous Materials supplied or generated by Contractor or its
Personnel, unless the same have been permanently incorporated into
the Facility; provided that, if any such explosives and other
Hazardous Materials are necessary for completion of the Work,
Contractor shall be permitted to retain such explosives and other
Hazardous Materials at the Site but only if, and to the extent, in
compliance with the COL and applicable Laws and only until
completion of the Work.
(iii)
Notice Requirements . Contractor shall immediately notify
Owners of: (A) any Releases of Hazardous Materials in violation of
Law by Contractor, Subcontractors, or by the Personnel or Invitees
of any of them, that occur in connection with the performance of
the Work at the Site; (B) material violations and investigations,
actions, claims, suits, notices of violation, fines, penalties,
orders, and other proceedings related to material violations or
alleged material violations of Environmental Laws, including, but
not limited to, Government Approvals issued thereunder, which are
asserted against Contractor, its Subcontractors, or the Personnel
or Invitees of any of them, in connection with the Work or their
activities on or in connection with the Facility and/or Site; (C)
Contractor’s discovery of any Hazardous Materials at the Site
or adjacent areas; and (D) material developments with respect to
Sections 3.5(o)(iii)(A), 3.5(o)(iii)(B), and/or 3.5(o)(iii)(C).
Contractor shall also notify the applicable Government Authorities
as required by applicable Law following a Release by Contractor,
its Subcontractors, or the Personnel or Invitees of any of them, at
the Site of Hazardous Materials, and shall promptly provide Owners
with a copy of such notification(s).
(iv)
Contractor Releases; Removal Obligations . Prior to Unit
Mechanical Completion of a Unit, Contractor will be responsible for
the proper handling, collection, containerizing, storage, removing
from such Unit and areas adjacent thereto, transportation and for
properly disposing of, at treatment, storage and disposal
facilities approved by Owners and otherwise in a manner acceptable
to Owners and in compliance with this Agreement and applicable Law,
Hazardous Materials generated, Released or accumulated by
Contractor or any Subcontractor in the course of performing the
Work on such Unit. Except as provided under Section 3.5(o)(v),
Contractor shall be the generator of record for such Hazardous
Materials and shall obtain a site-specific EPA Identification
Number which will be used to identify itself as such on all
manifests, hazardous waste reports, and other relevant
documents.
(v)
Pre-Existing Hazardous Materials . In the event Contractor
encounters on the Site material reasonably believed to be Hazardous
Material that existed prior to the Site Turnover Date (or the
relevant Site Turnover Date for the portion of the Site on which
the material was encountered), then Contractor will immediately
suspend performance of Work in the area affected and report the
condition to Owners in writing. Contractor will not thereafter
resume performance of the Work in the affected area except with the
prior written permission of Owners. To the extent
Contractor’s performance of the Work is affected by such
suspension of the Work in the affected area in accordance with this
Section 3.5(o)(v), such effect shall constitute a Change and shall
entitle Contractor to seek a Change Order pursuant to Article
9.
(p)
Operation and Maintenance Manuals . Not less than [***]
prior to the Guaranteed Substantial Completion Date for a Unit,
Contractor shall prepare and deliver to Owners for Owners’
acceptance preliminary manuals for the start-up, operation and
maintenance of the Unit including the Operating Procedures and
Maintenance Procedures (as set forth in Table 5 to the Scope of
Work). This delivery will be made through Owners having electronic
access to the manuals through the AP1000 Facility Information.
Owners will review these preliminary manuals and provide Contractor
with comments thereto within [***] from the date of submission of
such manuals to Owners. Contractor will make the revisions to such
manuals as reasonably requested by Owners, and once Owners are
satisfied with the contents of such manuals, they will be deemed to
be accepted (such accepted manuals, the “Operation and
Maintenance Manuals”), and the final manuals will be included
in the AP1000 Facility Information as a condition to the
achievement of Substantial Completion of each
Unit.
(q)
Turnover Packages . Contractor shall create, maintain,
update and compile Turnover Packages during the course of the Work
and will deliver to Owners such Turnover Packages prior to, and as
a condition of, Turnover for such Equipment.
(i)
Contractor Responsibility . Subject to Owners’
obligations for security of the portion of the Site on which the
First Unit is located following Unit Mechanical Completion of such
Unit, Contractor shall be responsible for the safety of Contractor,
its Subcontractors, and the Personnel and Invitees of any of them,
Owners’ Interests, and the public affected by the performance
of the Work.
(ii)
Project Safety Manual . Contractor shall develop a
comprehensive safety program that governs all of Contractor’s
activities at the Site in connection with its performance of the
Work. The safety program shall be reflected in writing in the form
of a written project safety manual and provided to Owners no later
than September 30, 2008 (the “Project Safety Manual”).
Contractor’s Project Safety Manual shall, at a minimum, (a)
meet the standards and requirements contained in Contractor’s
generic project safety manual that has been provided to Owners; (b)
incorporate and comply with the requirements of Article 23 as well
as the applicable VEGP Unit 1 and 2 safety requirements, (c) meet
the standard of care for such programs as established by nationally
recognized firms which provide goods and services
in
connection with nuclear construction projects or
other large industrial construction projects, (d) comply with
applicable Laws including the COL and license requirements of VEGP
Units 1 and 2, and (e) provide other reasonable protection to
prevent harm, damage, injury or loss (including without limitation
ecological harm or nuisance resulting from contamination, noise or
other causes arising from the performance of the Work). If Owners
reasonably believe that the Project Safety Manual does not meet the
foregoing standards, they shall notify Contractor of such
deficiencies in writing and Contractor shall promptly correct such
deficiencies in the Project Safety Manual and implement the
corrections into the performance of the Work. Contractor and its
Personnel shall take reasonable precautions for the safety of, and
shall provide reasonable protection to prevent damage, injury or
loss to Persons and property resulting from the Work, including,
without limitation:
(A) Contractor
or Subcontractor employees and other Persons performing the Work
and Persons who may be affected by the performance of the
Work;
(B) the
Equipment to be incorporated into the Facility, whether in storage
on or off the Site or under the care, custody or control of
Contractor or its Personnel; and
(C) all
materials and equipment and other real and personal property at or
adjacent to the Site or in the vicinity thereof, including without
limitation VEGP Units 1 and 2 and structures, equipment,
facilities, trees, shrubs, lawns, walks, pavements, roadways and
utilities.
(iii)
Safeguards . Contractor and its Personnel shall erect,
maintain or undertake, as required by existing conditions and the
performance of this Agreement, reasonable safeguards for the safety
and protection of Persons and property, including without
limitation posting danger signs and other warnings against hazards,
promulgating safety regulations, and notifying Owners and users of
adjacent sites and utilities. Those precautions will, if
appropriate, include providing security guards.
(iv)
Failure to Take Sufficient Precautions . Whenever, in the
reasonable opinion of Owners, Contractor has failed to take
sufficient precautions for the safety of Contractor, its
Subcontractor, and the Personnel and Invitees of any of them,
Owners’ Interests, and the public or the protection of the
Facility or of structures or property on or adjacent to the Site or
on the VEGP Units 1 and 2 site, creating, in the reasonable opinion
of Owners, a situation requiring immediate action, then Owners,
after having given reasonable prior notice to Contractor, may cause
such sufficient precautions to be taken or provide such protection.
The taking of such precautions or protection by Owners or its
agents or representatives shall be for the account of Contractor
and will not relieve Contractor of its obligations under this
Agreement and applicable Laws, and Contractor shall reimburse
Owners for the reasonable cost thereof.
(v)
Protection of Units 1 and 2 . No activity of Contractor
shall interfere with the operation of VEGP Units 1 and 2.
Accordingly, Contractor shall
comply with the restrictions on the VEGP site
respecting operation of VEGP Units 1 and 2. For example, offsite
power feeds to the plant shall not be interrupted without the
written consent of Owners.
(vi)
Emergencies . In the event of an emergency endangering or
potentially endangering life or property, Contractor shall take
such actions as may be reasonable and necessary to prevent, avoid
or mitigate injury, damage or loss and shall promptly report each
such emergency, and Contractor’s responses thereto, to
Owners. Contractor agrees to provide to Owners the name, title and
phone number of its emergency contact person prior to the
commencement of the Work.
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(s)
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Project Security Plan
.
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(i) Contractor
shall be responsible for the security of each portion of the Site
beginning on the applicable Site Turnover Date. Security of the
portion of the Site on which the First Unit is located (together
with any construction laydown and staging areas no longer needed by
Contractor) shall transfer from Contractor to Owners on the Site
Return Date for the First Unit portion of the Site. Security of the
portion of the Site on which the Second Unit is located (together
with any construction laydown and staging areas no longer needed by
Contractor) shall transfer from Contractor to Owners on the Site
Return Date for the Second Unit portion of the Site. Upon Final
Completion, security for any remaining construction laydown and
staging areas shall transfer from Contractor to
Owners.
(ii) At
least [***] prior to the Site Turnover Date, Contractor shall
submit to Owners for their acceptance a security program that
addresses both the construction project and the interface with
Owners’ existing operating VEGP Units 1 and 2 (the
“Project Security Plan”). At least [***] prior to the
Site Return Date of the First Unit portion of the Site, Contractor
shall submit to Owners for their acceptance a revised Project
Security Plan that addresses the Second Unit construction project
and the interface with VEGP Units 1 and 2 and the First Unit. Such
programs shall address industrial security as well as nuclear
security issues, based on the phase of construction.
Contractor’s security plan shall, at a minimum, (A)
meet the standard of care for such plans as established by
nationally recognized firms which provide goods and services of a
similar nature, (B) include measures for heightened security as
necessary due to the status of the VEGP Units 1 and 2 site and the
First Unit portion of the Site, as applicable, and (C) comply with
applicable Laws including without limitation NRC regulations and
requirements. Contractor’s Project Security Plan shall
address in the level of detail required by Owners the interface
between Contractor’s security plan and that of the Owners.
Such plan shall include a method acceptable to Owners for
controlling, identifying and monitoring Contractor’s
Personnel and Invitees in the areas in which the Work is to be
performed. Owners shall review the Project Security Plan and
the revisions thereto and provide Contractor with comments thereto
within [***] from the date of submission of the Project Security
Plan or the revisions thereto to Owners. If Owners reasonably
believe that the Project Security Plan does not meet the foregoing
standards, the Owners’ Authorized Representative shall notify
Contractor of such deficiencies in
writing and Contractor shall promptly correct
such deficiencies in the Project Security Plan and implement the
corrections into the performance of the Work.
(iii) Contractor
shall implement, maintain and cause Contractor’s Personnel
and Invitees to comply with the Project Security Plan. At no time
will Contractor, including its Personnel or Invitees, interfere
with, violate, or impede the Owners’ security program.
Contractor shall comply with Owners’ site rules at any time
Contractor requires access to VEGP Units 1 and 2, and, upon
Turnover of individual systems, structures and components of the
new Units, the requirement to abide by Owners’ security
program and site rules extends to the systems turned over to
Owners.
(t)
Royalties and Fees . Contractor shall pay the royalties and
license fees, if any, for materials, methods, processes and systems
that are incorporated into the Facility or used in completion of
the Work. [***]. In performing the Work, Contractor and its
Subcontractors and Vendors shall not incorporate into the Facility
or use materials, methods, processes or systems which involve the
use of confidential information, intellectual property or
proprietary rights which Owners, Contractor or its Subcontractors
or Vendors do not have the right to use or which may result in
claims or suits, against Owners, Contractor or its Subcontractors
or Vendors arising out of claims of infringement of domestic or
foreign patent rights, copyrights or other proprietary rights, or
applications for any such rights, or use of confidential
information.
(i)
Major Vendors . Exhibit P-1 sets forth a list of
Contractor’s Major Vendors. After the Effective Date,
Contractor shall provide updates to the Exhibit P-1 list
whenever such list is no longer accurate. Contractor shall seek
Owners' input concerning Contractor’s selection of Vendors to
conduct its Scope of Work with respect to the Standard Plant, but
Contractor shall have sole discretion as to its choice of Vendors
for such scope. Contractor shall work proactively with Owners to
choose acceptable Vendors for performance of the Work that is part
of the Non-Standard Plant. Owners shall have the right to recommend
additions to Exhibit P-1 from time to time, subject to
Contractor’s approval, which approval shall not be
unreasonably withheld.
(ii)
Subcontractors . Exhibit P-2 sets forth a list of
Subcontractors. In the event that Contractor desires to use any
Subcontractor for Work on the Site that is not on Exhibit
P-2 , it shall notify Owners and, within [***] of such notice,
Owners shall notify Contractor if such proposed Subcontractor is
not acceptable to Owners (such acceptance not to be unreasonably
withheld). If Owners fail to provide such notice within such [***]
period, then Owners shall be deemed to have approved such proposed
Subcontractor. Owners shall have the reasonable right to request
removal from the Site of any Subcontractor deemed unacceptable to
Owners, which request shall not be unreasonably denied by
Contractor. Unless otherwise agreed to by Owners in writing,
Contractor shall not use any Subcontractor that has (w) an
Experience Modification Ratio (as calculated in accordance with the
definition of the National Council on Compensation Insurance, Inc.)
of 1.0 or greater within the previous three years; (x) a Recordable
Case Incidence Rate (as calculated in accordance with 29
C.F.R.
Section 1904.4) of 3.0 or greater within the
previous three years; (y) a Days Away From Work Rate (previously
known as the Lost Time Incidence Rate, and as calculated in
accordance with 29 C.F.R. Section 1904.7) of 1.5 or greater within
the previous three years; or (z) one or more fatalities during the
last three years.
(iii) No
Privity with Owners . Notwithstanding any agreement with
Subcontractors or Vendors, Contractor shall be solely responsible
for the Work. Except as otherwise provided herein, Owners shall not
be deemed to have any contractual obligation or relationship with
any Subcontractor or Vendor. Contractor shall be as fully
responsible for the acts, performance, and omissions of its
Subcontractors and Vendors and of the personnel either directly or
indirectly employed by its Subcontractors and Vendors as Contractor
is for its own acts, performance and omissions.
(iv)
Flow-Down Clauses . Contractor shall use commercially
reasonable efforts to include in its Subcontracts provisions which
impose obligations on Subcontractors and Vendors that are
consistent with the obligations imposed on Contractor in the
provisions of this Agreement listed in Exhibit Y as those
terms are applicable to the scope of work being performed by the
Subcontractor or Vendor and subject to the limitations set forth in
any such provision or Exhibit Y .
(v)
Termination for Convenience . Subcontracts with Major
Vendors and Subcontractors must be terminable for convenience, and
related termination fees thereunder must be commercially reasonable
in light of the value of the services or materials provided at the
time when the termination fee applies and in no event shall such
termination fees include payment for any costs, losses, damages,
injuries or claims of the type disclaimed under Section
17.1.
(vi)
Payment . Contractor shall be solely responsible for paying
each Subcontractor and Vendor for services, equipment, material or
supplies in connection with the Work and the
Facility.
(vii)
Subcontractor and Vendor Warranties . As a condition to
Final Completion, Contractor shall assign to Owners its rights
under such Subcontractor and Vendor warranties that continue past
the end of the Warranty Period, with such assignment to be
effective as of the end of the Warranty Period. Contractor shall
use commercially reasonable efforts to secure consent to such
assignment from each such Subcontractor and Vendor such that the
warranties will be enforceable directly by Owners. Upon Final
Completion, Contractor shall deliver to Owners unpriced copies of
such Subcontracts. Contractor shall not, and Contractor shall take
commercially reasonable actions to ensure that Contractor’s
Subcontractors and Vendors do not, take any action which could
release, void, impair or waive any Subcontractor or Vendor
warranties.
(viii) Assignment of
Subcontracts . Contractor shall use commercially reasonable
efforts to obtain the agreement of Major Vendors, Subcontractors
with Subcontracts in excess of [***] and such other Vendors as are
agreed by the Parties, that Contractor’s rights and
obligations under the Subcontracts may
be, at Owners’ option, and without
requiring the prior consent of the relevant Subcontractor or
Vendor, in whole or in part, assigned and delegated by Contractor
to GPC as agent for Owners. Each such Subcontract shall provide
that, upon notification to the Subcontractor or Vendor (and
Contractor) from Owners that (A) the Agreement has been terminated,
(B) Contractor’s right to proceed with the Work has been
terminated pursuant to Section 22.2, and (C) Owners will thereafter
be assuming the portion of Contractor’s obligations under
such Subcontract related to the Work, such Subcontractor or Vendor
shall continue to perform the portion of its responsibilities under
such Subcontract related to the Work for the benefit of Owners and
shall recognize Owners as being vested with all the rights and
responsibilities of Contractor under such portion of such
Subcontract related to the Work. If Contractor is unable to obtain
such agreement in advance from a Vendor, it shall promptly notify
Owners; however, in the event that this Agreement is terminated,
Contractor shall work cooperatively with Owners to obtain the
agreement of the Vendor to assignment of its Subcontract or the
relevant portion thereof at that time. It should be noted that the
Subcontracts that Contractor will have with [***] associated with
the Work will not be directly assignable to Owners in the event of
termination of this Agreement. Notwithstanding the foregoing, it is
specifically understood and agreed (and each Subcontract shall
clarify) that no Subcontractor or Vendor shall have any right to
look to Owners for the performance of such portion of
Contractor’s obligations under any Subcontract related to the
Work unless and until Owners have assumed such performance
obligations in writing.
(v)
Contractor’s Government Approvals . Subject to the
provisions of Article 10, Contractor shall be responsible for
obtaining, maintaining and paying for Contractor’s Government
Approvals as necessary to achieve the Project Schedule. Owners
shall provide Contractor reasonable cooperation and assistance in
obtaining and maintaining Contractor’s Government
Approvals.
(i) Contractor
shall be responsible for those ITAACs associated with each system,
structure, or component within Contractor’s Scope of Work as
set forth in Exhibit A . Following the Effective Date, any
new or additional ITAAC, or change or modification to the ITAAC
associated with each system, structure, or component listed on
Exhibit A , that Owners propose be added to
Contractor’s Scope of Work shall constitute a Change and
shall entitle Contractor to seek a Change Order pursuant to Article
9. To the extent that such changes or modifications are the result
of Contractor’s acts or omissions, then Contractor shall not
be entitled to a Change Order.
(ii) Contractor
shall be responsible for conducting, or causing to be conducted,
the inspections, tests and analyses associated with each
Unit’s ITAAC within Contractor’s Scope of Work in
accordance with the Project Schedule. Upon completion of such
inspections, tests and analyses, Contractor shall be responsible
for preparing and delivering to Owners the Documentation or other
deliverables to demonstrate and confirm that the related acceptance
criteria associated with such inspections, tests and analyses as
applicable to each Unit within Contractor’s Scope of Work
have been satisfied.
(x)
Support for Government Approvals . Contractor shall provide
support to Owners in connection with Owners’ Government
Approvals, including without limitation making personnel available
to testify at formal and informal government proceedings, and
providing the documents and information reasonably requested by
Owners, without limitation, including review and comment to
sections prepared by others, and amendments thereto, to address
formal NRC licensing questions on a schedule that supports the
Project Schedule and licensing support services.
[***]
ARTICLE
4
OWNERS' RESPONSIBILITIES AND
RIGHTS
4.1
Owners’ Responsibilities . Owners shall perform the
responsibilities set forth in this Article and elsewhere in this
Agreement, including Exhibit A , at its own expense and at
those times as may be required pursuant to the Project
Schedule.
(a)
Appointment of Agents . Owners have appointed GPC as their
agent for all purposes under this Agreement pursuant to the
Ownership Agreement, with the power and authority to bind Owners to
their obligations herein. Except as provided in Sections 8.1 and
8.7, all obligations required under this Agreement to be fulfilled
by the Owners will be performed by or at the direction of GPC, as
agent for the Owners. Copies of the Ownership Agreement have been
provided to and received by Contractor. Owners will not materially
change (in terms of the effect of any change on the agent’s
authority with respect to this Agreement) the agency authority
granted to GPC (or a successor agent) under the Ownership Agreement
without Contractor’s prior written approval. GPC, acting for
itself and as agent for the other Owners, has appointed Southern
Nuclear as agent for the implementation and administration of this
Agreement. Southern Nuclear is the exclusive licensed operator of
VEGP Units 1 and 2 and will be the licensed operator
(“Licensed Operator”) of the Facility having exclusive
control over licensed activities at the Facility.
(b)
Owners’ Authorized Representative . Owners shall
appoint Owners’ Authorized Representative (and shall have the
right to appoint a successor or replacement Authorized
Representative) with whom Contractor may consult at all reasonable
times and whose written instructions, requests and decisions shall
be binding upon Owners as to all matters pertaining to this
Agreement. Contractor shall have the right to rely upon a
communication from Owners’ Authorized Representative as a
communication on behalf of all of the Owners, and shall not rely
upon any instruction or direction issued by any other
representatives of Owners. Owners’ Authorized Representative
shall not have any authority to amend this Agreement except in
compliance with the provisions of Article 31.
(c)
Access . From and after the time the Project Schedule
indicates that Contractor is required to have access to the Site,
Owners shall provide Contractor, at no additional cost to
Contractor, rights of access to such portions of the Site as
Contractor may reasonably require for the construction of the
Facility and for Contractor’s office, warehouse, shop
buildings, welding facilities, Contractor’s equipment
storage, lay down area, and employee parking. Owners shall
cooperate with Contractor so as to minimize disruption by Owners of
Contractor’s performance of the Work, and Contractor shall
cooperate with
Owners so as to avoid disruption by Contractor
and its Personnel of operation of the existing VEGP Units 1 and
2.
(d)
Site Conditions and Site Parameters . Owners have conducted
investigations to determine the suitability of the Site for the
Facility. This information, as identified in Exhibit R , has
been furnished to and received by Contractor and Contractor is
entitled to rely on such information. Owners shall be responsible
for the accuracy and completeness of the Site information provided
to Contractor.
(e)
Fuel and Utilities . Owners shall provide the electrical
interconnect for power to be exported from the Facility at the
interconnection points identified or to be identified in Exhibit
A . Owners shall provide an electrical interconnect for the
Facility at a voltage of 13.8 kV at the construction site boundary
for electrical power necessary for construction and testing of the
Facility at the time required pursuant to the Project Schedule.
Contractor shall be responsible for the lines, cable, transformers,
switchgear, equipment, etc. from the interconnection point to
Contractor’s facilities. Exhibit A specifies the
division of responsibilities between Owners and Contractor for
utilities during construction and for the provision of temporary
facilities, water, lubricants, fuel, chemicals and consumables
during construction and testing of the Facility. Owners shall
provide all Nuclear Fuel for testing, startup and operation of the
Facility and shall receive all energy generated during testing. The
Parties agree that Contractor has no ownership or other rights with
respect to such test energy and that all proceeds of the sale or
other disposition of the test energy belongs to
Owners.
(f)
Operation and Maintenance Staff . For those activities
supported and/or conducted by Owners under Articles 11 and 12,
Owners shall provide fully trained and qualified operation and
maintenance personnel for testing and operation and maintenance of
a Unit or the Facility consistent with Contractor’s
requirements as set forth in Table 4 of Exhibit A . If
Contractor determines that additional operation and maintenance
personnel are needed (and provided that such determination has been
made in order to comply with Prudent Practices), Contractor shall
have the right to require that additional operation and maintenance
personnel be provided by Owners upon reasonable advance notice
[***] for maintenance personnel [***] for operations personnel) to,
and following discussions with, Owners.
(g)
Job Site Rules . Owners shall cooperate with Contractor in
the development of the Project Safety Manual and Project Security
Plan. Subject to the requirements of the operating licenses for
VEGP Units 1 and 2, to the extent applicable, and the COL for the
Units, Owners, their representatives and agents shall abide by the
Project Safety Manual and Project Security Plan.
(h)
Owners’ Government Approvals . Owners shall be
responsible for obtaining, maintaining and paying for Owners’
Government Approvals (including the COL and Georgia PSC
Certification Order) and for the communications with any Government
Authorities regarding such Government Approvals. Owners shall
provide as much advance notice as practical of the need for the
testimony of Contractor’s Personnel at proceedings before
Government Authorities.
