Engineering, Procurement and Construction Contract

1.1

The following terms, wherever capitalized and italicized in the Contract, or in any document produced pursuant to the terms of the Contract, shall have the following meanings:

(a)

Appendix or Appendices, as the case may be, means one or more of the schedules attached to and incorporated in this Contract as set forth in Section 1.2;

(b)

As-Built Drawings means the controlled and complete set of documents upon which the Contractor records each and every instance of differences between the Work as executed and the Work as designed and depicted in the documents issued by the Contractor for Construction Work;

(c)

Change means any change in, addition to, or deletion from the Scope of Work, Owner’s Specified Materials, the Milestones, or the Contract Time that is effected by a Change Directive, Change Order or Change Quotation that has been approved in writing by Owner;

(d)

Change Directive means a written instruction from the Owner directing a Change;

(e)

Change Order means a written order signed by both the Contractor and the Owner authorizing a Change;

(f)

Change Quotation means a written quotation from the Contractor for an adjustment in the Contract Time, Milestones or the Compensation, or both;

(g)

Commencement Date means the date that the Work is to commence, which is May 14, 2008;

(h)

Commissioning after Functional Completion means those commissioning duties of the Owner and of the Contractor that shall take place after Functional Completion and which are described in the Scope of Work and allocated to either the Owner or the Contractor;

(i)

Commissioning before Functional Completion means those commissioning duties of the Owner and of the Contractor that shall take place before Functional Completion and which are described in the Scope of Work and allocated to either the Owner or the Contractor;

(j)

Compensation means the compensation which the Owner shall pay for performance of the Work in accordance with Appendix B – Compensation;

(k)

Confidential Information means all information relating to the Work and any process or technology relating thereto, and information relating to the nature of the Contractor’s and the Owner’s business and affairs, which either party directly or indirectly receives or acquires (or previously received or acquired) from the other party, or the other party’s representative, either in writing or verbally, including information in the Contract, or through observation of the Owner’s Site, the Work Site, the Work or work performed by Other Contractors, except information falling into any one or more of the following categories:

(i)

information which the disclosing party can show was in its possession on a non-confidential basis before receipt or acquisition of the information from the other party;

(ii)

information which is lawfully in the public domain at the time of the disclosing party’s receipt or acquisition of the information from the other party, other than from the Scope of Work or through the process of proposal calls or performing the Work;

(iii)

information which, after the disclosing party’s receipt or acquisition of the information from the other party, becomes part of the public domain through no act of the disclosing party or of any third party under an obligation of confidence with respect to such information, but only after such information becomes part of the public domain; or

(iv)

information which, after receipt or acquisition of the information from the other party, is lawfully obtained by the disclosing party from a third party, but only after such information is so received or acquired, and provided such third party is under no obligation of confidence with respect to such information.

(l)

Construction Work means delivery, fabrication, assembly, construction, testing, commissioning and correction, including professional and technical personnel, labor, supervision, administration, materials, transportation, supplies, tools, equipment, and such other work and materials necessary to be performed or supplied to meet the requirements of the Contract, including any work which is not expressly described in the Contract but which is nevertheless necessary for the proper execution of the Work, but does not include Engineering Services or Procurement Services;

(m)

Contemplated Change Notice means a written notice from the Owner advising the Contractor that the Owner is contemplating a Change;

(n)

Contract means:

(i)

this Engineering, Procurement and Construction Contract;

(ii)

Change Orders;

(iii)

Execution Plan; and

(iv)

other documents which come into existence and are incorporated into the Contract pursuant to the terms of this Contract;

(o)

Contract Time means the period of time from the Commencement Date to the Scheduled Functional Completion Date;

(p)

Contractor means FMC Technologies, Inc.;

(q)

Contractor’s Representative means that person identified as such in Section 48.2, or an approved replacement;

(r)

Deficiency means any portion of the Work that has not been performed in accordance with the Scope of Work, the Contract or the Law;

(s)

Engineering Services means those services described in the Scope of Work and provided by the Contractor for the design, planning and engineering of the Project, but does not include Construction Work or Procurement Services;

(t)

Event of Force Majeure means any occurrence, other than the financial capability of a party or an event constituting a delay under Article 32 - Delays or Article 33 - Delays not Caused by the Contractor, which prevents or delays a party

from performing its obligations under the Contract (except an obligation to pay any amount) within the time required for the performance of such obligation and which is beyond the control and without the fault or negligence of the party relying on such occurrence, and which by the exercise of reasonable diligence that party could not, at the time the Contract was executed, have reasonably contemplated happening and which at the time of such occurrence, is beyond the reasonable control of the party required by the Contract to perform such obligation and such party is unable to reasonably prevent or provide against such occurrence. In no event shall weather conditions be deemed to be an Event of Force Majeure unless such weather conditions are abnormal and exceed the normally expected inclement weather in the area of the Project based on a 15-year moving average of climate data maintained by the National Atmospheric and Oceanic Administration;

(u)

Execution Plan means the schedule developed by the Contractor and approved by the Owner for the Work in accordance with Section 4.2 and which shall be updated from time to time as may be required by the Owner and which shall include, but not be limited to:

(i)

the sequences and methods for the performance of the Work; and

(ii)

a detailed schedule with dates for the completion of Milestones;

(v)

Facilities means the physical works engineered, procured and constructed as a result of the Work being performed;

(w)

Final Completion Notice means that notice in the form contained in Appendix G – Forms issued by the Owner to the Contractor pursuant to Section 20.2 certifying completion and acceptance of the Work under the Contract;

(x)

Functional Completion means that date when the Work:

(i)

has passed the required Performance Tests that are stipulated in the Scope of Work to be performed before Functional Completion; and

(ii)

is certified by the Owner’s Representative pursuant to Article 19 as being complete or ready to be put into service, or being used for the purpose intended and a Functional Completion Certificate is issued; and

(iii)

only non-critical punch list items remain to be completed by the Contractor. Non-critical punch list items are items that do not measurably affect safety, protection of the environment, efficiency or quality.

(y)

Functional Completion Certificate means that notice, in the form attached hereto as Appendix G – Forms, issued by the Owner to the Contractor pursuant to Article 19, certifying achievement of Functional Completion of the Work and identifying the date that the Owner takes over the Work .

(z)

Goods means any goods, supplies, materials or equipment required as part of the Work, or to perform the Work, and which are supplied or fabricated by the Contractor, but do not include Procured Goods;

(aa)

Hazardous Material means any substances which are hazardous to persons, animals, property or the environment and includes hazardous substances, hazardous waste, ozone depleting substances and dangerous goods, all as identified or defined under applicable law.

(bb)

Incentive Fee means that fee that shall be paid by the Owner to the Contractor, if applicable, and which is set out in Appendix F – Incentive Fee;

(cc)

Inspection and Test Plan means the plan for inspection and testing, which shall be prepared by either the Owner or the Contractor as specified in the Scope of Work;

(dd)

Key Personnel means the Contractor’s key personnel for the Work identified in Appendix I – Key Personnel , or if not determined before the execution of this Contract, identified in an organizational chart in accordance with Article 15 - Key Personnel and approved by the Owner;

(ee)

Law means the common law, the law of equity and all federal or state statutes or municipal by-laws and all regulations, orders, directives, permits and licenses thereunder, which apply to or otherwise affect the Work, the Owner or the Contractor with respect to the Work, or the property of the Owner or the Contractor, real or personal, including, but not limited to, all environmental, occupational, health and safety laws;

(ee*)

Leased Equipment means those items of equipment identified in Schedule 1 to Appendix B and which will leased by Owner. Owner will perform certain inspection and acceptance activities for the lessor of the equipment, but only in a role as the representative of the lessor.

(ff)

Liquidated Damages means those damages agreed by the parties to be a genuine pre-estimate of damages in the event the Performance Guarantees are not met or the Work is not completed in the Contract Time and which are set out in Appendix E– Liquidated Damages;

(gg)

Milestone or Milestones means, as the case may be, one or more milestones that the Contractor must meet as set forth in the Scope of Work ;

(hh)

Other Contractors means the contractors, consultants, or engineers retained by the Owner, to perform any work or services at, or related to, the Owner’s Site , other than the Contractor ;

(ii)

Owner means the owner of the Project, Quaker Chemical Corporation;

(jj)

Owner’s Representative means that person identified as such in Section 48.1 which may include a consultant hired by the Owner, if so designated, or that person’s designated replacement;

(kk)

Scope of Work means the description of the scope, standards, design criteria, Performance Guarantees, Milestones and the schedule of work set out in Appendix A–Scope of Work, as amended by any Changes;

(ll)

Owner’s Site means the Owner’s land upon which the Work Site is located and which may have on it other projects by Other Contractors or existing facilities, activities or operations;

(mm)

Owner’s Specified Materials means those materials, goods, products, processes, and equipment specified in Section 3 of the Scope of Work to be used in, or to be incorporated into, the Work by the Contractor;

(nn)

Performance Guarantees means the performance guarantees set out in the Scope of Work;

(oo)

Performance Tests mean the performance tests set out in the Scope of Work for the purpose of determining achievement of the Performance Guarantees for the Work, and such other tests as may be agreed between the Owner and Contractor in order to compare actual performance of the Work with the Performance Guarantees;

(pp)

Intentionally omitted.

(qq)

Procured Goods means those goods, supplies, materials or equipment obtained by the Contractor for incorporation in, or to perform, the Construction Work, and procured by the Contractor as part of its Procurement Services;

(rr)

Procurement Services means the procurement of Procured Goods performed by the Contractor, for its own account, as stipulated in the Scope of Work;

(ss)

Project means the Middletown Plant Expansion Turnkey Project;

(tt)

Proprietary Information means all inventions, discoveries, improvements and technical information not in the public domain, which the Contractor, Subcontractors, or their respective employees or agents who are performing the Work, may conceive of, reduce to practice or develop during the Contract Time or within 12 months thereafter, as a result of Confidential Information;

(uu)

Records means the books, statements, records and accounts pertaining to the Contract and the performance of the Work, whether in paper or electronic form;

(vv)

Safety Plan means the plan, as prepared by the Contractor and approved by the Owner , to be enforced by the Contractor with regard to all Work performed at the Work Site .;

(ww)

Scheduled Functional Completion Date means the date on which the Work is scheduled to achieve Functional Completion , which is 15 months after the Commencement Date ;

(xx)

Subcontractors means any subcontractors, consultants, suppliers or vendors hired by the Contractor to perform any portion of the Work or supply any Goods ;

(yy)

Suspended Work means any Work , or portion thereof, which the Owner has suspended pursuant to Article 34 - Suspension;

(zz)

System means any component system of the Work , or any part thereof as the context requires;

(aaa)

Warranty Item means any Deficiency that is identified after the Functional Completion Certificate is issued or is incorporated into the Functional Completion Certificate to be remedied after Functional Completion ;

(bbb)

Warranty Period commences on the date of Functional Completion of the Work , and continues for 12 months from the date of Functional Completion as stated in the Functional Completion Certificate ;

(ccc)

Work means all Engineering Services , project management, Procurement Services , Goods , Procured Goods , Construction Work and those duties allocated to the Contractor in the Commissioning before Functional Completion and Commissioning after Functional Completion , as may be necessary to fulfill the Scope of Work and includes anything that is ancillary or necessary by implication to fulfill the Scope of Work ;

(ddd)

Work Day means any day, except for a Saturday, Sunday, a federal holiday or a holiday which is regularly observed in the construction industry in Middletown, Ohio, or defined as a holiday in a collective agreement pertaining to the Work Site ; and

(eee)

Work Site means those lands where the Project is located and which are generally depicted on Appendix C.

1.2

The following schedules attached hereto shall form part of and are incorporated in this Contract :

2.1

Unless the context otherwise requires, words importing the singular shall include the plural and vice-versa and words importing gender shall include the masculine, feminine and neuter genders.

2.2

The headings and sub-headings of the Contract are used for convenience and ease of reference only and in no way define, limit, describe or interpret the scope or intent of the Contract .

2.3

If there is a conflict in the Contract , the order of precedence of documents, from highest to lowest, shall be:

(a)

this Engineering, Procurement and Construction Agreement, including the Appendices ;

(b)

Change Orders ;

2.4

The following shall, in all instances, apply:

(a)

for documents revised by either party and approved by the Owner , the latest revision shall govern;

(b)

figured dimensions on drawings shall govern, even though they may differ from scaled dimensions;

(c)

drawings of larger scale shall govern over those of smaller scale of the same date; and

(d)

specifications shall govern over drawings regardless of time.

2.5

Wherever this Contract requires an action to be performed or an obligation to be undertaken, such action or obligation shall be performed in a reasonable manner by the party taking the action or fulfilling its obligation.

3.1

The Scope of Work describes the scope of the Work.

3.2

The Scope of Work shall specify the requirements of the Safety Plan and identify the party, or parties, responsible for the development and implementation of the Safety Plan .

4.1

The scope of the Work includes correction of defects and deficiencies by the Contractor in accordance with the Contract .

4.2

Set forth in the Scope of Work is an Execution Plan for the performance of the Work required under the Contract . The Contractor shall control the progress of the Work to achieve compliance with the Execution Plan .

4.3

In the execution of the Work the Contractor shall comply with, and the completed Work shall comply with, the Law , including, without limitation, applicable building codes, technical standards, building construction and environmental regulations and the standards specified in the Contract .

4.4

References in the Contract to applicable codes, standards or regulations shall be understood to be references to the edition applicable on the date of the Contract , unless stated otherwise. If substantially changed or new applicable codes, standards or regulations come into force after the date of the Contract , the Contractor shall submit a Change Quotation for compliance to those new codes, standards or regulations to the Owner’s Representative . Any Change in the Work , the Contract Time or the Compensation as a result shall be dealt with under Article 13 - Changes.

4.5

The Contractor accepts the Owner’s Site , the Work Site and the obligation to perform the Work in the condition existing at the effective date of this Contract and acknowledges that it has investigated and satisfied itself as to:

(a)

the nature of the Work ;

(b)

the location of and all conditions relating to the Owner’s Site and the Work Site , including, but not limited to, accessibility, general character, surface conditions, utilities, roads, uncertainties of seasonal weather and all other physical, topographical and geographical conditions but excluding subsurface or other physical conditions not disclosed by the Owner or specified in the Scope of Work ;

(c)

environmental risks resulting from the Work, Law and restrictions applicable to the Contractor or the Work that may affect the Work; and

(d)

the magnitude of the Work.

4.6

The Contractor accepts the obligation to perform the Work in accordance with the terms of this Contract for the Compensation and within the Contract Time, and acknowledges that it has investigated and accepts:

(a)

the character, quality, quantity and availability of equipment and materials required to execute and complete the Work for the Compensation and within the Contract Time; and

(b)

all conditions affecting labor, including, without limitation, availability, productivity and administrative practices, including those relating to safety, prevailing at or applicable to the Work.

4.7

To the extent diligent and reasonable inquiry would lead to discovery, failure by the Contractor to discover matters which affect, or could affect, the Work shall not relieve the Contractor from its obligations under the Contract or otherwise affect the Contract Time or the Compensation.

4.8

The Owner reserves the right to award separate contracts to Other Contractors for work to be performed at the Work Site and to perform work with its own forces at the Work Site. In such event, the Contractor shall co-ordinate and schedule the Work with the work of the Other Contractors and the Owner’s own forces, and the Contractor shall share access to and use of the Work Site to accommodate the work of Other Contractors. If work performed by Other Contractors or Owner’s own forces as directed by the Owner materially interferes with the Work performed by the Contractor, the Contractor may issue a Change Quotation in accordance with Section 13.7.

4.9

The Contractor shall co-operate fully with the Owner, Other Contractors and all other parties with whom the Contractor or Owner may be involved during the performance of the Work. The Contractor shall supervise its employees and Subcontractors and inspect their work to ensure that the Work conforms in each and every respect to the Scope of Work and in accordance with Section 10.1.

4.10

Approval of the Engineering Services, acceptance of any part of the Goods, Procured Goods or the Construction Work by the Owner, or payment to the Contractor, or any one or more of them, shall not relieve the Contractor from its responsibilities under the Contract, whether pursuant to any of the warranties or guarantees herein, or otherwise.

4.11

The Contractor shall provide the Owner with written reports detailing the status of the Work and all issues relating to the Work, promptly upon the reasonable request of the Owner, and shall attend meetings as required by the Contract, or as otherwise requested by the Owner’s Representative.

4.12

The Contractor shall have those responsibilities for managing the Work as stipulated in the Scope of Work or elsewhere in this Contract, including, but not limited to:

(a)

cost monitoring, scheduling and reporting to the Owner;

(b)

scheduling the Work and monitoring and reporting on the progress of the Work relative to the Milestones to the Owner;

(c)

coordination, scheduling and supervision of Subcontractors;

(d)

coordination and management of transportation and related services for the Work;

(e)

management of the Work to ensure the Work is performed in an efficient and coordinated manner; and

(f)

preparation of reports and attendance at meetings with the Owner.

4.13

The Contractor shall ensure that no activities or actions are undertaken in the performance of the Work, or otherwise by the Contractor, which would adversely affect, restrict or limit in any way the continued operation of the Owner’s facilities which are in operation, unless required to perform the Work, done in accordance with the Execution Plan, authorized in writing by the Owner’s Representative.

4.14

In the performance of the Work, the Contractor shall give due consideration to the interest and property of others wherever involved, and shall carry out and perform the Work in a reasonable manner which shall cause the minimum of inconvenience, injury, and damage to others.

4.15

The Owner shall provide and the Contractor shall abide by all documents provided by the Owner relating to the Owner’s Site, including, but not limited to, any special restrictions and conditions contained in any easement, regulatory board order, crossing agreement, or other permit relating to the Work Site.

4.16

Each of the parties shall promptly and fully inform each other of any errors, omissions or inconsistencies in the Contract, defects or deficiencies in the Work and of any inconsistencies between the Contract and the Law, of which they become aware. The Contractor shall exercise reasonable care and diligence to prevent any actions or conditions which could result in any such inconsistencies, defect or deficiencies. . If the Contractor discovers any inconsistencies in the Contract, or between the Contract and the Law, or discovers any defects or deficiencies in the Work, and proceeds without resolution with the Owner, the Contractor shall proceed at the Contractor’s own risk and expense and waives all rights to claim against the Owner for the same.

4.17

All documents and drawings prepared as part of the Work shall be in English.

5.1

The Contractor shall perform the Engineering Services and be responsible for the design and engineering necessary to execute the Work. The Engineering Services shall be prepared under the supervision of the Contractor’s engineers. The Contractor’s responsibilities in this section 5.1 shall not apply to the selection of the sizes and/or quantities of the materials designated in the Scope of Work as Owner’s Specified Materials or the conceptual design of the Project as shown on Attachment 7.1 to the Scope of Work.

5.2

The engineers referred to in Section 5.1 shall be available to meet with the Owner’s Representative at all reasonable times during the Contract Time and Warranty Period.

5.3

The Owner shall have the right of inspection and review of the design drawings and specifications at all reasonable times. No inspection, or failure to inspect, by the Owner shall relieve the Contractor of the Contractor’s obligations under the Contract. The Contractor shall provide to the Owner for Owner’s written approval design documents sufficient to establish the size, quality and character of the Project; its architectural, structural, mechanical and electrical systems; and the materials and such other elements of the Project to the extent required by the Scope of Work. Deviations, if any, from the Scope of Work shall be expressly disclosed in writing by the Contractor to the Owner. Upon the Owner’s written approval of the design documents submitted by the Contractor, the Contractor shall provide construction documents for review and written approval by the Owner (the “Construction Documents”). The Construction Documents shall set forth in detail the requirements for construction of the Project. The Construction Documents shall include plans, drawings and specifications that establish the quality levels of materials and systems required. Deviations, if any, from the Scope of Work or the previously approved design documents shall be expressly disclosed in writing by the Contractor to the Owner. Construction Documents may include drawings, specifications, and other documents and electronic data setting forth in detail the requirements for construction of the Work. Upon completion and approval by Owner, the Construction Documents shall be deemed to be part of the Scope of Work.

5.4

Prior to commencement of the Performance Tests, the Contractor shall prepare, and submit to the Owner’s Representative, operation and maintenance manuals in accordance with the Scope of Work. The Work shall not be considered to be completed for the purposes of achieving Functional Completion until such operation and maintenance manuals have been submitted to the Owner’s Representative.

5.5

The Contractor shall:

(a)

prepare, and keep up-to-date, the As-Built Drawings;

(b)

record the exact locations of each of these differences, sizes and details of the Construction Work as executed, with cross-references to relevant specifications and other requirements on the As-Built Drawings

(c)

keep the As-Built Drawings on the Work Site;

(d)

during the Contract Time, provide the Owner with access to the As-Built Drawings; and

(e)

upon completion of the Work, submit the As-Built Drawings and copies (including paper and electronic versions) to the Owner’s Representative in accordance with the Scope of Work.

5.6

The preparation and delivery to Owner of As-Built Drawings shall not relieve Contractor of responsibility for any differences or deviations between the Work as constructed and the requirements of the Scope of Work, the Construction Documents and the plans and specifications that have not been accepted and approved in writing by Owner.

6.1

Where the Scope of Work directs the Contractor to use the Owner’s Specified Materials, the Contractor shall review the Owner’s Specified Materials to determine whether such materials are acceptable to meet the Engineering Services and Construction Work and can be made available for procurement without interfering with the achievement of the Milestones .

6.2

If the Contractor determines that the Owner’s Specified Materials are acceptable for the Work , then the Owner’s Specified Materials shall be used and incorporated in the Work in the same manner as those materials and pieces of equipment proposed by the Contractor and the Contractor shall take responsibility for the Owner’s Specified Materials and all warranty provisions that apply thereto; or

6.3

If the Contractor determines that the Owner’s Specified Materials are not acceptable for the Work , then the Contractor shall give notice to the Owner that the Owner’s Specified Materials are not suitable for the Work , which notice will provide details of the reasons why the Owner’s Specified Materials are not acceptable for use or incorporation into the Work.

6.4

Where the Contractor has provided notice to the Owner that the Owner’s Specified Materials are not acceptable for the Work, the Owner shall promptly notify the Contractor of the Owner’s decision as to whether or not to include the Owner’s Specified Materials in the Work .

6.5

If the Owner chooses to direct the Contractor to use the Owner’s Specified Materials after the Contractor has notified the Owner that the Owner’s Specified Materials are not acceptable for the Work , then the Owner shall take full responsibility for the Owner’s Specified Materials, including any warranty claims and damages, including failure to achieve Functional Completion , that may occur from the use or incorporation of the Owner’s Specified Materials.

7.1

As specified in the Scope of Work, the Contractor shall perform the Procurement Services .

7.2

Where specified in the Scope of Work, the Contractor shall provide Procurement Services using such selected vendor lists specified in the Scope of Work .

7.3

Payment of invoices for Procured Goods shall be made by the Contractor to its suppliers in accordance with the terms established between the Contractor and his suppliers. Payment on account of Procured Goods to be made by the Owner to the Contractor shall be made when the Procured Goods are delivered and suitably stored at the Work Site for subsequent incorporation in the Work , in accordance with Appendix B.

8.1

The Contractor shall perform the Construction Work in accordance with the Construction Documents and the Contract.

8.2

Except for those materials, services and equipment to be provided by the Owner and described in Appendix A–Scope of Work, the Contractor shall supply or cause to be supplied all services, equipment and materials required for the proper execution and completion of the Construction Work.

8.3

The Contractor shall take full responsibility for the adequacy, stability and safety of the Work and the Work Site operations under its control, of all methods of construction and of all of the Construction Work, unless the Contractor has received written instructions from the Owner’s Representative absolving the Contractor of responsibility.

9.1

The duties of the Owner and of the Contractor in relation to Commissioning before Functional Completion and Commissioning after Functional Completion, together with the Milestones to be reached for commissioning, are as set out in the Scope of Work .

10.1

The Contractor shall:

(a)

perform the Work in a professional, efficient and workmanlike manner, using only qualified, skilful and careful workers, in strict accordance with the Contract and in accordance with sound and currently accepted design, engineering, procurement, construction and commissioning practices normally employed in industrial construction similar to the Work ;

(b)

perform the Work in a safe and environmentally sound manner and in compliance with the Law ;

(c)

ensure that the title to any and all Goods and Procured Goods shall, upon transfer of title to the Owner, be free from any and all claims, liens, charges, encumbrances or security interests of any kind whatsoever;

(d)

ensure equipment and materials furnished, manufactured or fabricated by the Contractor, or its Subcontractors, for incorporation into the Work , shall:

(i)

meet the specifications in the Contract , if so specified, and if not specified then be of the quality best suited for the required operating conditions and intended use and purpose of the materials and services; and

(ii)

shall be fit for the purpose for which the equipment and materials have been manufactured or fabricated;

(e)

perform the Work to meet the Scope of Work ;

(f)

comply with the Contract, including, but not limited to, all time schedules and Milestones set out in, or called for by, the Contract or the Execution Plan ; and

(g)

ensure the Work shall be fit for its intended purpose as specified in the Scope of Work and successfully completes all inspections and tests under Article 17 and all Performance Tests under Article 18.

(h)

strictly comply with the requirements of Chapters 4115 and 4582 of the Ohio Revised Code relative to prevailing wages including, without limitation the provisions of Revised Code Section 4582.37. Contractor shall ensure that all laborers and mechanics employed in connection with the Project are paid at the prevailing rates of wages of laborers and mechanics for the class of work called for by the Project , which wages shall be determined in accordance with the requirements of Chapter 4115 of the Ohio Revised Code for determination of prevailing wage rates. Contractor further acknowledges and understands that construction of the Project is deemed to be construction of a public improvement within the meaning of Revised Code Section 4115.03 and that, as a result, the Contractor shall and shall cause all Subcontractors working on the Project to comply with all applicable requirements of Revised Code Sections 4115.03 to 4115.16 and other Applicable Laws related thereto. Upon request from time to time by the Owner , the Contractor shall promptly deliver to the Owner evidence satisfactory to the Owner , that Contractor and all Subcontractors have complied with the foregoing requirement. Contractor agrees, at the request of the Owner , that the prevailing wage coordinator required pursuant to Chapter 4115 in respect of the Project shall be such person or entity as may hereafter be designated by the Butler County Port Authority to perform the duties of wage coordinator. The Contractor specifically represents and warrants and covenants that neither it, nor any Subcontractor has been or will be included on any list described in Revised Code Section 4115.133.

10.2

The Contractor represents and warrants to the Owner that:

(a)

it has the experience, resources, personnel and capability to perform the Work ;

(b)

it is duly incorporated and validly existing under the laws of the jurisdiction(s) of its incorporation and is registered to carry on business in the State of Ohio;

(c)

it has all required permits, licenses and authorizations necessary to carry on its business; and

(d)

the Contractor has the right to use, employ and incorporate in the Work those things or ideas to which the Contractor gives the Owner a license under Section 28.2.

11.1

Subject to any Change Order , the Contractor shall commence the Work on the Commencement Date and shall achieve Functional Completion of all of the Work by the Scheduled Functional Completion Date .

11.2

The Contractor shall, unless otherwise provided for in this Contract or altered by any Change Order , perform the Work in accordance with the Execution Plan .

11.3

If a party fails to meet its obligations set out in this Contract in a timely manner, the other party may raise the failure of a timely action as provided for in Appendix H – Dispute Resolution Procedure. Nothing in this Section 11.3 shall limit Owner’s right to receive Liquidated Damages as provided in Appendix E or Owner’s rights under Article 36.

12.1

As full and complete compensation for the Work , the Owner shall pay the Contractor the Compensation pursuant to the terms of Appendix B – Compensation which shall in no event exceed the Compensation payable in accordance with the Contract , as adjusted by any Change Order .

12.2

The Contractor shall prepare and submit invoices for all Work performed in accordance with Appendix B – Compensation.

13.1

The Owner shall have the right, at any time, to make a Change .

13.2

When a Change is proposed by the Owner , then the Owner shall provide a Contemplated Change Notice to the Contractor describing the proposed Change .

13.3

The Contractor , upon receipt of a Contemplated Change Notice , shall within five (5)  Work Days provide the Owner’s Representative with a Change Quotation which shall include a method of adjustment or an amount of adjustment to the Compensation , if any, and any adjustment in the Contract Time for the proposed Change .

13.4

Following receipt of a Change Quotation , the Owner shall within five (5)  Work Days either agree to the adjustments in the Contract Time and the Compensation or to the method to be used to determine the adjustments, or give the Contractor notice that the Change Quotation is not acceptable.

13.5

If the Change Quotation is agreed to, then the Owner shall issue a Change Order recording the Change , which shall be signed by the Owner and the Contractor . The value of the Work performed as a result of a Change Order shall be included in invoices for payment given by the Contractor in accordance with the terms of payment in Appendix B – Compensation and shall identify those portions of the invoice charged for the Change Order .

13.6

If the Owner requests the Contractor to provide a Change Quotation and subsequently elects not to proceed with the Change , the Contractor shall be reimbursed in accordance with Appendix B – Compensation, or as otherwise agreed between the parties, for its reasonable costs incurred including design and engineering services, and the Owner shall issue a Change Order for these costs.

13.7

If, during the performance of the Work , the Contractor is of the reasonable opinion that any written instruction, interpretation, decision or direction from the Owner should have, but has not, resulted in a Contemplated Change Notice being issued, the Contractor shall give the Owner five (5)  Work Days notice with a Change Quotation requesting an adjustment in Contract Time and the Compensation required. If the Contractor does not issue a Change Quotation within five (5)  Work Days after the aforesaid instruction, interpretation, decision or direction is given by the Owner , then the Contractor shall have no claim for any claim against the Owner attributable to that instruction, interpretation, decision or direction.

13.8

If the Owner receives a Change Quotation from the Contractor pursuant to Section 13.7, the Owner shall promptly consider the Change Quotation and immediately issue a Change Order , within three (3)  Working Days or advise the Contractor in writing that the Contractor’s request is denied or such Change Quotation shall be deemed denied. To the extent there is a dispute as to whether the Change Quotation is appropriate, such dispute shall be resolved in accordance with Appendix H – Dispute Resolution Procedure.

13.9

No modification, addition, deletion or other revision to the Scope of Work shall be binding on either party unless set out in a Change Order , or determined by Appendix H – Dispute Resolution Procedure.

13.10

The Contractor shall include in its Change Quotation all costs and changes in Contract Time reasonably expected to result from a Change including any impact costs or costs of acceleration.

13.11

If the Contractor encounters actual subsurface or other concealed physical conditions at the Work Site which are materially different from any representations or written disclosures (including e-mails) of existing conditions made by Owner or described in the Scope of Work , then the Contractor shall provide notice to the Owner within 5 Work Days of encountering the conditions and shall allow the Owner the opportunity for inspection before the conditions are further disturbed. If the Contractor fails to provide such notice to the Owner within the specified time then the Contractor shall have no claim for any additional costs or delays attributable to such subsurface or concealed physical conditions.

13.12

The Owner shall promptly investigate the conditions described by the Contractor pursuant to Section 13.11 and if the actual conditions encountered by the Contractor at the Work Site differ materially from the conditions represented or disclosed in writing (including e-mails) by Owner or described in the Scope of Work so as to increase the cost to the Contractor or impact the Contract Time , then the Owner shall issue a Change Order to cover the increased cost and Contract Time .

14.1

All communications between the Owner and the Contractor and all documents of whatever kind submitted to the Owner by the Contractor and its Subcontractors shall be in the English language. All of the Contractor’s and the Subcontractors’ personnel that deal with or communicate with the Owner shall be fluent in the English language. All training and supervision of the Owner’s operating personnel shall be in the English language.

14.2

The Contractor shall employ, or cause to be employed, only supervisory personnel who are appropriately qualified, trained and experienced in safety, efficiency and quality of work supervision.

14.3

At the Owner’s request, the Contractor shall reassign, replace or remove personnel who, in the Owner’s opinion, acting in good faith, negatively affect the efficiency, safety or Scheduled Functional Completion Date of the Work .

15.1

If not agreed to before the execution of the Contract , the Contractor shall submit a proposed organizational chart for the Owner’s approval, as part of the Execution Plan . The organizational chart shall show the Key Personnel and other supervisory and staff personnel who shall be executing the Work , together with their respective job titles and contact information.

15.2

The Owner shall identify any of the Key Personnel to which the Owner objects within 14 Work Days and if the Owner does not provide the Contractor with its objections to the Key Personnel , the Owner shall be deemed to have accepted the Key Personnel .

15.3

If the Owner objects to any of the Key Personnel in accordance with Section 15.2, then the Contractor will promptly prepare a new organizational chart identifying the Key Personnel for the Owner’s approval. This process shall be repeated until the Owner approves the Key Personnel .

15.4

Once the Owner has approved the organizational chart identifying the Key Personnel , the Contractor shall within five (5)  Work Days arrange for each of the Key Personnel to complete and execute an agreement in the form of the Key Employee Confidentiality Proprietary Information and Consent Agreement, attached as part of Appendix G–Forms.

15.5

Subject to Section 15.6, the Contractor shall not, without the Owner’s consent, make any changes to the Key Personnel or an organizational chart that has been approved by the Owner .

15.6

If any Key Personnel leave the Contractor’s workforce, the Contractor shall forthwith replace such Key Personnel with personnel possessing those qualifications necessary for the proper performance of the functions to which assigned.

16.1

The Contractor has identified in the Scope of Work and in Appendix I its intention to subcontract the performance of specified portions of the Work and/or the supply of specified equipment and materials and the names of the intended Subcontractors or suppliers . The Owner may for reasonable cause, and acting in good faith, object to the use of a proposed Subcontractor and require the Contractor to obtain another Subcontractor . Any reviews or approvals by the Owner pursuant to the provisions of this Article or elsewhere in this Contract shall not release or relieve the Contractor of any of its obligations under this Contract or create any contractual relations between the Owner and any Subcontractor . The Contractor shall require any Subcontractor to agree to be bound by this Contract and to abide by the Scope of Work for safety and loss management.

16.2

Prior to the Commencement Date , the Contractor shall provide the Owner’s Representative with a list of the names and addresses of all Subcontractors and others who the Contractor proposes to perform any part of the Work . The Contractor shall provide the Owner’s Representative with any proposed changes to this list during the Contract Time .

16.3

The Contractor shall be fully responsible for any part of the Work performed by Subcontractors and for the acts or omissions of Subcontractors and all persons either directly or indirectly employed by them, to the same extent as the Contractor is for its

own acts or omissions. Without in any way limiting the Contractor’s obligations pursuant to the provisions of this Article or elsewhere under this Contract , the Contractor shall secure compliance with and enforce, at its own expense, for the benefit of the Owner , each of the contracts concluded by the Contractor with Subcontractor s.

16.4

This Contract shall inure to the benefit of and bind any successor in interest to a party to this Contract . This Contract may not be assigned by either party without the prior written consent of the other party. Notwithstanding the foregoing, Contractor may assign this Contract to any successor in interest to that portion of Contractor’s business involved in the subject matter of this Contract , provided, however, that FMC Technologies, Inc. shall remain liable for all obligations of “ Contractor ” hereunder and shall not be released from such liability as a result of any such assignment.

16.5

The Owner shall not assign this Contract including all rights and obligations hereunder, at any time without the prior agreement of the Contractor , except for any collateral assignment required in connection with Owner’s financing of the Work .

16.6

The Contractor shall enforce the warranty obligations of its Subcontractor s, and upon the request of the Owner , shall assign any warranty to the Owner . All contracts between the Contractor and its Subcontractors shall provide that warranties given by the Subcontractor shall be given to both the Contractor and the Owner and the warranties may be enforced by either the Contractor or the Owner .

16.7

The Contractor shall request and use its best efforts to obtain for the benefit of the Owner , the best warranties and guarantees that it is possible to secure from its Subcontractors without impact to cost and, as a minimum, shall obtain and provide to the Owner the warranties required by the Contract . The Contractor shall do all things and provide all assistance reasonably necessary to enable the Owner to enforce warranties and guarantees provided by its Subcontractor s.

17.1

The Inspection and Test Plan shall be prepared by the party specified in the Scope of Work as having responsibility for the preparation of it and shall be followed when any inspection or testing of the Work is performed.

17.2

At all times during the progress of the Work , the Owner shall have the right to inspect or witness any part of the Work .

17.3

The Contractor shall inspect and be solely responsible for the inspection of all workmanship, materials and equipment furnished by itself or its Subcontractors in respect of the Work , to ensure conformity in each and every respect to the Contract (including, without limitation, the Construction Documents ) and the Law and to ensure that good and proper construction practices are followed and that the Work is performed in a safe and environmentally sound manner.

17.4

If the Law requires testing of any part of the Work , the Contractor shall provide the Owner with sufficient advance notice of the arrangements for the test and shall thereafter conduct the test in compliance with Law .

17.5

The Contractor shall provide the Owner’s Representative with sufficient advance notice of its readiness for any test and the Owner shall then promptly witness the test. If the Owner fails to witness the test when scheduled, any re-testing required by the Owner shall constitute a Change .

17.6

If any portion of the Work is closed or covered by the Contractor without the Owner’s permission and before the Owner has been given the opportunity to perform or witness a required test, then, if required by the Owner , that portion of the Work shall be opened or uncovered for testing and re-closed or recovered, all at the Contractor’s expense and without increasing the Contract Time .

17.7

Any Work which must be tested shall not be considered ready for inspection by the Owner until the Contractor has satisfied itself and notified the Owner’s Representative , that, in the Contractor’s opinion, that portion of the Work can successfully pass the test.

17.8

Any inspection, testing or witnessing of any of the Work or tests by the Owner , or omission or failure on the part of the Owner to inspect or test any of the Work shall not be construed to be an acceptance of any such Work , or as relieving the Contractor of its responsibilities pursuant to the Contract or the Law.

17.9

The Contractor shall ensure that all tools, equipment, temporary facilities and other items used in accomplishing the Work , whether purchased, rented, manufactured or fabricated by, or under the direction of the Contractor , or otherwise provided by the Contractor or Subcontractor s, are safe, environmentally sound and maintained in good condition, capable of performing their required functions. In the case of tools, meters and other devices which require calibration, the Contractor shall ensure that such calibration is performed on the frequency recommended by the manufacturer and in accordance with normal industry practice.

17.10 

The Owner reserves the right to inspect all tools and equipment brought on to the Work Site at any time during the progress of the Work upon reasonable notice. The Owner’s Representative may require the Contractor to supply a qualified, independent engineering evaluation or certification that any item in question is suitable for its intended purpose, or to reject any item and require replacement with a proper and suitable item which is satisfactory to the Owner’s Representative and shall constitute a Change with cost to Owner . If any tool or item of equipment is determined via independent engineering evaluation or certification to be unsafe, environmentally unsound or incapable of doing the work for which it is intended, then the Contractor shall pay for the cost of the independent evaluation or certification and repair or replace it with a safe, environmentally sound and suitable tool or item of equipment at the Contractor’s expense.

17.11

 The Owner may, at any time during the progress of the Work , conduct additional inspections or tests on any part thereof (in addition to those specified in the Scope of Work ), to determine whether the Work is in accordance with the Scope of Work . Such tests shall be at the sole expense of the Owner except as otherwise set forth in the Scope of Work . If such additional testing causes a delay in the Scheduled Functional Completion Date , Contractor shall submit to Owner a Change Quotation setting forth the proposed new Scheduled Functional Completion Date in accordance with Section 13.7.

17.12

 The Contractor shall develop and provide to the Owner , for the Owner’s review and approval, an Inspection and Test Plan in time to allow the Owner to perform the inspections contemplated by this Article 17 – Inspection and Testing.

18.1

If Performance Tests are specified in the Scope of Work , this Article shall apply.

18.2

Performance Tests may be stipulated in the Scope of Work to be performed before, after, or both before and after Functional Completion and shall be performed by that party specified in the Scope of Work .

18.3

Unless otherwise stipulated in the Scope of Work :

(a)

the Owner shall provide the necessary labor, materials, electricity, fuel, heat, chemicals, disposal of fluids and materials and water for the Performance Tests ;

(b)

the Contractor shall carry out the Performance Tests in accordance with the manuals provided by the Contractor under Section 5.4; and

(c)

the Contractor shall provide such guidance as specified in the Scope of Work during the course of such Performance Tests .

18.4

When the Contractor considers that the Work , or any System , will pass the Performance Tests , the Contractor shall notify the Owner that the Contractor may perform the Performance Tests on, or to, the Work or a System .

18.5

If the Work or a System , or part thereof, passes one or more Performance Tests , the Owner shall promptly give notice acknowledging the success of the same to the Contractor . Such acknowledgement shall not be deemed to be an acceptance by Owner of the Work or System , or limit or relieve the Contractor of its obligation to achieve Functional Completion of the entirety of the Work in accordance with Article 19, the Scope of Work or any other provision of this Contract .

18.6

If the Work or a System , or part thereof, fails one or more of the Performance Tests , then the Contractor shall:

(a)

prepare a report to the Owner , for the Owner’s approval, proposing the alterations the Contractor will make to the Work or System , or part thereof, to bring the Work or System to a condition which the Contractor considers will pass the Performance Tests ; provided, however, that the Owner’s review and approval of any such proposed alterations shall not limit or relieve the Contractor of its obligation to bring the Work or System to a condition which actually passes the Performance Test;

(b)

redo or repair the Work or System , or part thereof, and repair any damage to the Work or System caused by the same in failing to meet the Performance Test , to make such Work or System , or part thereof, ready for a repeat and successful completion of the failed Performance Tests .

18.7

To the extent the Work or a System , or part thereof, fails to pass one or more Performance Tests solely as a result of actions or omissions by the Owner , the Owner shall promptly issue a Change Order providing a Change in the Contract Time or the Compensation , or both, as the case may be, to the Contractor for such Performance Tests and the Contractor shall proceed with its obligations relating to the Performance Tests as set out in the Scope of Work .

19.1

Intentionally omitted.

19.2

The Contractor may apply by notice to the Owner’s Representative for a Functional Completion Certificate not earlier than 3 days before the Work will, in the Contractor’s reasonable opinion, be complete and ready for taking over by the Owner . Such notice shall include the Deficiencies which are acknowledged by the Contractor . In no event shall the Contractor make application for a Functional Completion Certificate until the Work has successfully passed or completed all applicable tests and inspections under the Inspection and Test Plan and any applicable Performance Tests .

19.3

After receipt of the Contractor’s application for a Functional Completion Certificate , the Owner’s Representative shall, within 3 days after the receipt of the same:

(a)

reject the application, giving reasons and specifying the work required to be done by the Contractor , which reasons shall specify (to the extent known to Owner ) Category “A” Deficiencies , related to the Work , and which, if not remedied, will prevent the Owner from commissioning or starting-up the Facilities and thereafter being able to use the same in the manner contemplated, and the Category “B” Deficiencies , related to the Work , which will not prevent the Owner from commissioning or starting-up the Facilities ; or

(b)

issue the Functional Completion Certificate to the Contractor , stating the date on which the Work was completed in accordance with the Contract , attaching a list (to the extent known to Owner ) of Category “B” Deficiencies , related to the

Work , and which if not remedied will not prevent the Owner from commissioning or starting-up the Facilities , and the Contractor shall cease to be liable for, and shall relinquish care, custody and control of, the Facilities from the date of the Functional Completion Certificate and responsibility shall pass to the Owner .

19.4

If the Owner reasonably determines that the Work does not meet Functional Completion , as set out in this Article 19 or the Scope of Work , the Owner shall provide a notice to the Contractor as specified in Section 19.3(a) and the Owner’s Representative may:

(a)

order further repetition of Performance Tests specified to be performed before Functional Completion in the Scope of Work , or other tests necessary to determine Functional Completion ; or

(b)

issue a Functional Completion Certificate , in which case, if the Owner so requires, the Compensation shall then be reduced by such amount as may be agreed by the Owner and the Contractor (in full satisfaction of such failure only), and the Contractor shall then proceed in accordance with the Contractor’s other obligations under the Contract .

19.5

If the Owner’s Representative fails either to issue the Functional Completion Certificate or to reject the Contractor’s properly submitted application within the period of 3 days, the Fun ctional Completion Certificate shall be deemed to have been issued on the date specified by the Contractor for Functional Completion in the notice in accordance with Section 19.2.

19.6

Where the Contractor’s application for a Functional Completion Certificate is rejected by the Owner in accordance with 19.3(a), the Contractor shall not re-apply for a Functional Completion Certificate under Section 19.2 until the Category “A” Deficiencies are remedied.

19.7

The Owner shall not use any part of the Work unless the Owner’s Representative has issued a Functional Completion Certificate for the Work , or a Functional Completion Certificate has been deemed to have been issued in accordance with Section 19.5.

19.8

If the Contractor is prevented from carrying out a Performance Test by a cause for which the Owner or one or more Other Contractors are responsible, the Contractor shall notify the Owner within 48 hours of such delay and if the Contractor is further prevented during the next 48 hours from doing so, the Owner shall issue a Change Order to compensate the Contractor for a change in Compensation or Contract Time , as may be applicable.

19.9

After a Functional Completion Certificate is issued, the Owner may continue to identify Deficiencies . Where Deficiencies are identified after issuance of a Functional Completion Certificate , the procedure for dealing with and resolving such Deficiencies shall be as set forth in Appendix D – Warranty Items Procedure.

20.1

It is a condition precedent to the issuance of a Final Completion Notice that the Contractor satisfy each of the following requirements:

(a)

the Work has been fully completed in accordance with the terms and conditions of this Contract ;

(b)

all Deficiencies with respect to the Work have been remedied to meet the requirements of the Contract ;

(c)

all obligations of the Contractor to other parties in relation to the Work , for which the Owner could in any way be held responsible, have been fully satisfied; and

(d)

the Contractor has delivered to the Owner the following:

(i)

a statutory declaration in the form included in Appendix G–Forms and modified as required to include the following:

(a)

the amount of final sums payable;

(b)

the date the Contractor completed the Work , to evidence the expiration of the term for filing liens.

(ii)

any As-Built Drawings and operations manuals for which the Contractor is responsible;

(iii)

assignments of any warranties provided by manufacturers or suppliers of materials;

(iv)

a Release and Certificate of Final Payment, in the form provided in Appendix G–Forms, releasing all of the Contractor’s claims against the Work and the Owner arising under or by virtue of this Contract .

(v)

A final lien release from the Contractor and each Subcontractor and material supplier that performed any portion of the Work or supplied any Goods or Procured Goods in connection with the Work .

(vi)

a final certificate of occupancy for the Project and the Project has passed all other governmental inspections.

20.2

When conditions precedent set out in Section 20.1 have been met by the Contractor , the Owner shall issue to the Contractor a Final Completion Notice .

21.1

Liquidated Damages shall be paid by the Contractor to the Owner in accordance with Appendix E–Liquidated Damages.

22.1

The Incentive Fee shall be paid to the Contractor by the Owner in accordance with Appendix F–Incentive Fee.

23.1

If a defect in the Facilities is discovered during the Warranty Period and if the Owner has notified the Contractor in writing of such Deficiency no later than 30 days after the expiry of the Warranty Period , the Contractor shall, at its own risk and expense remedy without delay, and in a manner substantially consistent with the original Work , cure such defect;

23.2

The Contractor further warrants any and all corrective actions it performs in respect of defects appearing during the Warranty Period for a period of up to the later of (i) the end of the original Warranty Period , or (ii) 6 months from completion of the remedial work.

23.3

The Contractor shall immediately advise the Owner’s Representative of any defects in workmanship, defects, errors, omissions or mistakes in the Work that it discovers or becomes aware of during the Contract Time or the Warranty Period .

23.4

The Contractor shall perform its warranty obligations set forth in this Article 23 - Warranty in a manner that keeps disruptions to the Owner’s continued operations at a minimum.

23.5

Neither acceptance of the Work by the Owner , nor payment for performance of the Work , shall relieve the Contractor from any responsibility for defects in the Work .

23.6

The sole remedy for breach of this warranty is the repair or replacement, at the option of Contractor of the defective Work , including, without limitation, labor to remove and/or reinstall the Work .

23.7

Goods which have been subjected to abuse or other improper use will not be entitled to the benefits of any warranty by Contractor .

23.8

EXCEPT AS EXPRESSLY SET FORTH IN THIS CONTRACT (INCLUDING, WITHOUT LIMITATION, CONTRACTOR’S OBLIGATIONS UNDER SECTION 10.1(d)(ii) ABOVE, THERE ARE NO OTHER WARRANTIES, STATUTORY, AT LAW, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, WHICH EXTEND BEYOND THE FACE OF THIS AGREEMENT.

24.1

The Contractor shall act in accordance with the Law and with a view to the timely and cost effective completion of the Work in accordance with the Milestones .

24.2

Where there is a change in the Law after the effective date of this Contract , the Contractor shall be responsible for ensuring that the Work complies with the Law , but any time or cost associated with such change shall be to the account of the Owner . If the Contractor considers such change to be a Change , the Contractor may make a claim for such Change under Section 13.7.

24.3

The Contractor shall comply with and shall ensure that its employees and agents comply with and shall contractually require its Subcontractors and their respective employees and agents to comply with all applicable Law in connection with the Work .

24.4

The Contractor shall obtain from governmental authorities or other third parties, and pay for, those licenses, permits and approvals required by the Law and the Contract to perform the Work , except those licenses, permits and approvals required with respect to the land-use aspects of the Work to be performed on the Work Site , and except for any licenses, permits and approvals required by the Contract to be obtained by the Owner as stipulated in Appendix A – Scope of Work.

25.1

The Owner and the Contractor are committed to safety and the application of loss management principles in the conduct of their business. The parties recognize that excellence in safety and loss management can only be achieved through the active participation of everyone, including Subcontractors and their respective employees, consultants and agents.

25.2

The Contractor shall have the highest regard for safety, emergency procedures and loss management at all times during the performance of the Work . Accordingly, the Contractor shall at all times be responsible for safety and loss management in the performance of the Work , including, but not limited to, protecting the employees of the Owner , the Contractor , Other Contractors , Subcontractors , visitors to the Work Site and the general public from injury or death and protecting the Work Site , the Owner’s property and the property of third parties from loss or damage. Without limiting the generality of the foregoing, the Contractor shall comply with all safety requirements specified in the Contract .

25.3

The Contractor shall comply with the Safety Plan .

25.4

All employees of the Contractor and Subcontractors and all Work Site visitors must successfully complete any of the Owner’s safety orientation courses and other similar courses stipulated in the Scope of Work before being allowed access to the Work Site , and it shall be the Contractor’s responsibility to ensure that they have done so.

25.5

For all Work performed on the Work Site, the Contractor shall have an alcohol and drug policy that is reasonably acceptable to Owner.

26.1

The Contractor shall be responsible for keeping all its working and storage areas clean, orderly and secure.

26.2

The Owner is not responsible for theft, loss or damage to the Contractor’s tools, equipment or materials howsoever caused.

26.3

The Contractor shall not, and shall ensure that its Subcontractors do not, use, transport, or store Hazardous Material at the Work Site except with the prior approval of the Owner’s Representative. All Hazardous Material used, transported or stored shall be dealt with in accordance with, and the Contractor shall comply with, the Law and the Contract.

26.4

During the performance of the Work, the Contractor shall comply fully with the Contract and the Owner’s safety and emergency guidelines and publications regarding clean up. The Contractor shall clean up, remove and dispose of all surplus materials, containers, trash and debris resulting from the Work. Upon completion of the Work, or earlier termination of the Contract, the Contractor shall promptly clean up and remove all equipment, tools and surplus materials from the Work Site as reasonably specified by the Owner and shall leave the Work Site clean and ready for the Owner’s use and occupancy.

27.1

Except for any proprietary processes of the Contractor listed in Appendix A - Scope of Work, all of the Work shall belong to the Owner, and accordingly the Contractor shall have no proprietary right or interest in the Work. The Contractor shall not use, copy or disclose any of the Scope of Work or the Work for any purpose other than performing the Work. Subject to the foregoing, the Contractor may retain for its own records a copy of the plans and specifications.

27.2

Notwithstanding Section 27.1, where a technology, process or work method belongs to, or is developed by the Contractor or Subcontractor and is not the result of Confidential Information provided by the Owner, the proprietary rights to that technology, process or work method shall remain with the Contractor or Subcontractor. Where proprietary rights remain with a party other than the Owner, then the Owner and its assignees shall, and are hereby granted, the right and irrevocable license without charge to have, retain and use information in respect thereof, for the purpose of the Work and the operation, repair, maintenance, re-building or renovation of the Work or any portion thereof.

27.3

Notwithstanding Section 27.1, or any other provision of the Contract, the Contractor shall be responsible for possession of the Engineering Services until received by the Owner . If the Engineering Services , or any part thereof is lost, damaged or destroyed prior to receipt by the Owner , then the Engineering Services , or portion thereof, as applicable, shall be promptly redone and replaced by the Contractor , at its expense, unless the loss, damage, or destruction was caused by the Owner or persons for whom in Law it is responsible.

27.4

Subject to the Owner’s rights under Section 16.5, the Owner agrees that it shall not:

(a)

sell to third parties the Engineering Services , except as part of the sale of the Project ;

(b)

distribute the Engineering Services , to third parties except for the purpose of operating, maintaining, repairing or replacing, re-building or renovating the Owner’s property encompassing or relating to the Work , or, for the purpose of performing other work directly related to the Work , or for building other facilities, plants or structures of a similar nature or purpose.

27.5

The title to all Work completed or in the course of construction at the Work Site and all Goods , except tools and equipment owned or rented by the Contractor or Subcontractors and not intended to be incorporated into the Work , shall become the property of the Owner upon payment by the Owner on account thereof.

27.6

Notwithstanding the provisions of Section 27.5, until the Owner has issued a Final Completion Notice , the Contractor shall retain all risk (including loss, theft, damage or destruction), but subject to the application of any insurance proceeds maintained by Owner or Contractor on account of any such risk, with respect to and be responsible for:

(a)

all items supplied by the Contractor or its Subcontractors which are to be incorporated into the Work or used in performance of the Work ;

(b)

all items supplied by the Owner to the Contractor for incorporation into the Work or for use in performing the Work ;

(c)

all temporary structures or facilities used in the performance of the Work ; and

(d)

any Work completed or in progress.

27.7

No materials, supplies or equipment incorporated into the Work shall be subject to any general security agreement, chattel mortgage, financing contract or other agreement by which an interest therein is retained by the seller, or any other party.

28.1

The Contractor shall indemnify and save the Owner harmless from all claims costs and demands, including legal fees, arising out of any suits, claims or demands for patent, trademark, copyright or industrial design infringement pertaining to any

equipment, machinery, materials, compositions, processes, methods or designs supplied by the Contractor , or its Subcontractors , in the performance of the Work . The Contractor shall pay all royalties and license fees pertaining to any equipment, machinery, materials, compositions, processes, methods or designs supplied by the Contractor , or its Subcontractors , in the performance of the Work .

28.2

The Contractor shall own all right, title and interest in any Project Intellectual Property (as hereinafter defined) that relates to products or services manufactured or provided by the Contractor The Contractor hereby grants to the Owner an irrevocable, worldwide, non-exclusive license to use any Project Intellectual Property owned by the Contractor , solely for the purpose of the operation and maintenance but not the manufacture of any equipment provided to the Owner by the Contractor under this Contract. Where software is embedded or accompanies the systems delivered in the Work , a non-exclusive license is granted to the Owner to govern the access to and use of such software for the limited purpose of operating or using the Work . “ Project Intellectual Property” shall mean all Intellectual Property, including, without limitation, proprietary technical, engineering, and business information, reports, studies, analysis, models, or other similar data and documents that are developed in the performance of any Work under this Contract by Contractor or its employees, agents or contractors.

28.3

The rights granted to the Owner by the Contractor under Section 28.2 shall be assignable by the Owner to any party to whom the Owner may transfer all or part of title to the Work or the Project .

28.4

The Owner shall be entitled, at its own expense, to participate in or conduct the defense of any claim with respect to which it is entitled to indemnity under Section 28.1

29.1

Each party shall keep all Confidential Information in confidence and shall not disclose it to others without the prior approval of the other party. The Contractor shall not use the Confidential Information , except in performance of the Work .

29.2

Notwithstanding Section 29.1, the Contractor may disclose Confidential Information to those of its employees, Subcontractors and their respective employees to whom disclosure is required in order for the Contractor to perform the Work , provided the Contractor shall ensure that its employees and agents comply with, and shall contractually require its Subcontractors and their respective employees and agents to comply with Section 29.1.

29.3

The Contractor shall not disclose any of the Scope of Work or the Work to others without the prior approval of the Owner’s Representative , except as necessary to perform the Work .

29.4

Notwithstanding Section 29.1 or Section 29.3, Confidential Information may be disclosed by a party if that party is required to disclose the Confidential Information as a result of an arbitrator appointed under Appendix H - Dispute Resolution Procedure or an order of a court of competent jurisdiction. If disclosure is required by an arbitrator or an order of a court, the disclosing party shall provide the other party with immediate notice of such arbitration or court order and shall only disclose the minimum amount of Confidential Information to comply with the arbitration or court order. In addition, notwithstanding anything herein to the contrary, it is acknowledged that Owner is a publicly traded company; consequently, Owner shall have the absolute and unbridled right to disclose any information regarding the transaction contemplated by this Contract required by law to satisfy disclosure and reporting obligations of Owner or its affiliates

29.5

The Contractor shall not use the Owner’s name, or the names of any of its affiliates and the registered or unregistered trademarks of the Owner or its affiliates in any slogans or otherwise in any advertising or promotional materials or publicity releases, and shall not take, permit to be taken or use any photographs of the Work Site , without the prior approval of the Owner’s Representative .

30.1

Where proprietary rights remain with a party other than the Owner , the Owner and its assigns, shall have the right, and are hereby granted the right, to have and to retain a copy for their own use, and to use, any Engineering Services , As-Built Drawings or other information, for the purpose of the Work or the operation, repair, maintenance, replacement, re-building or renovations of the Facilities .

30.2

The Contractor shall keep and maintain adequate and current records of all Proprietary Information .

30.3

Contractor shall keep all Proprietary Information in confidence, shall not use it, or any part of it except in the performance of the Work and shall not disclose it to others, without the Owner’s prior consent.

31.1

Either the Owner or the Contractor may claim that an Event of Force Majeure has taken place, by giving the other party verbal notice within 48 hours of the Event of Force Majeure , and, in addition, written notice, together with a proposed plan of corrective action to resolve or minimize the effect of the Event of Force Majeure , within 72 hours of the Event of Force Majeure . Contractor shall be deemed to have waived any claim for adjustments to the Contract Time resulting from an Event of Force Majeure if the aforesaid notice is not timely given to Owner .

31.2

If the Owner has given a notice of an Event of Force Majeure , or the Owner agrees with a notice of an Event of Force Majeure issued by the Contractor that the Work or a portion thereof is affected by an Event of Force Majeure , then the Owner shall:

(a)

cause the Contractor to complete the Work , with such time adjustments to the Contract Time as permitted under Section 31.4 below; or

(b)

suspend the Work or any portion thereof in accordance with Article 34 - Suspension; or

(c)

terminate the Contract or any portion thereof in accordance with Section 35.1 and Section 36.6.

31.3

If the Owner acting reasonably and in good faith does not agree that the Work or any portion of the Work is affected as a result of an Event of Force Majeure for which the Contractor has given notice under Section 31.1, then the Contractor shall complete the Work in accordance with the Execution Plan

31.4

Notwithstanding anything to the contrary contained herein, no request for an adjustment to the Contract Time shall be allowed unless the Work is affected as a result of an Event of Force Majeure for which the Contractor has given notice under Section 31.1 and (a) the delay resulting therefrom increases the overall critical path duration of the schedule in effect at the time of the delay and (b) the Contractor has used its best efforts to offset such delay by making appropriate changes to the other parts of the schedule. The Contractor shall not be entitled in any circumstances to any adjustments in the Compensation or any damages or other compensation whatsoever in the event of any delays in the progress of the Work unless such delays were solely caused by Owner . Otherwise Contractor hereby waives any rights to such adjustments to Compensation or damages and agrees that the sole remedy for delay, if appropriate and warranted under the provisions of this Contract , shall be an extension of the Contract Time .

32.1

Except as provided in Article 33 below, if there is any delay in the progress of the Work , or if Contractor fails to complete any portion of the Work within the time limits set forth in the Execution Plan or fails to complete the Work by the Scheduled Functional Completion Date , then the Contractor shall, at no additional cost to the Owner and without limiting any other rights or remedies available to Owner hereunder, provide a recovery plan and perform whatever acts are required or reasonably requested by the Owner’s Representative to make up the lost time and to avoid any further delay in the performance of the Work , including, without limitation, work overtime, and acquire and use any necessary additional labor and equipment.

33.1

If the Contractor is delayed in the performance of the Work solely by an act or omission of the Owner or Other Contractors , contrary to the provisions of the Contract , then the Contract Time shall be extended for such reasonable time as may be necessary to allow the Contractor to make up the delay and adjustment to Compensation shall be made accordingly.

33.2

If the Contractor is delayed in the performance of the Work by an order issued by a court or other public authority having jurisdiction, providing that such order was not issued as the result of an act or fault of the Contractor or any person employed or engaged by the Contractor directly or indirectly, then the Contract Time shall be extended as agreed by the parties or as resolved under Appendix H - Dispute Resolution Procedure.

33.3

No claim for delay and no extension of time on account of delay under this Article 33 shall be made by the Contractor unless notice of claim with a Change Quotation is given to the Owner not later than 5 Work Days after the commencement of delay, provided however, that in the case of a continuing cause of delay only one notice of claim shall be necessary.

34.1

In addition to any other right that the Owner may have under the Contract or in Law , the Owner may, at any time or times, by notice to the Contractor specifying the effective date of the suspension, require the Contractor to suspend the Work , or any portion thereof.

34.2

Upon providing notice under Section 34.1, the Owner shall arrange to immediately discuss with the Contractor the specific requirements of the suspension and whether or not the Owner anticipates that demobilization, remobilization or idle equipment or personnel will occur as a result of the suspension.

34.3

Upon receiving notice, the Contractor shall discontinue the Suspended Work , place no further purchase orders or subcontracts with respect to the Suspended Work , and promptly make reasonable efforts to obtain suspension terms satisfactory to the Owner with respect to all purchase orders, subcontracts, supply contracts and rental agreements related to the Suspended Work . The Contractor shall continue to perform all other portions of the Work which have not been suspended by the Owner .

34.4

Where requested by the Owner , the Contractor shall advise the Owner of:

(a)

the number of the Contractor ’s personnel made idle by the suspension;

(b)

the labor costs resulting from the Contractor ’s, personnel made idle by the suspension;

(c)

transportation costs for the Contractor’s personnel released during the suspension;

(d)

the equipment made idle and associated equipment costs resulting from the suspension; and

(e)

any other costing, labor, material or equipment information relating to the suspension that the Owner may require.

34.5

The Owner may at any time authorize resumption of the Suspended Work or any part thereof, by giving the Contractor reasonable notice specifying the part of the Suspended Work to be resumed and the effective date of such resumption. The Contractor shall resume the Suspended Work on the date and to the extent reasonably specified in the notice.

34.6

The Contractor shall use its employees, equipment and materials in such manner, and take such other steps as may be necessary or desirable to minimize the costs associated with the Suspended Work . During the period of Suspended Work , the Contractor shall secure and protect the Suspended Work and all materials and equipment to be used or incorporated therein.

34.7

In relation to Suspended Work, the Owner shall reimburse the Contractor for those costs, including profit, reasonably incurred by the Contractor as a direct result of the suspension of the Work in accordance with Appendix B – Compensation.

34.8

In the event that the Owner , without cause, fails to make payments as described in Appendix B Compensation , the Contractor will have the option, upon twenty (20) days prior written notice to the Owner , to suspend all Work until the payments have been brought current.

35.1

In addition to any other rights that the Owner may have under the Contract or in Law , the Owner may, at any time, terminate the Contract , the Work or any portion thereof by giving notice to the Contractor specifying the Work or portion thereof to be t