Exhibit 10.59
EXECUTION VERSION
SITE WORK AGREEMEN
T
between
R ED R IVER E NVIRONMENTAL P RODUCTS , LLC
Owner
and
BE&K C
ONSTRUCTION
C OMPANY , LLC
Contractor
January 23,
2009
List of
Annexes
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Annex 1:
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Scope of
Work
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Annex 2:
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Special Payment
and Security Provisions
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Annex 3:
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Site Work
Subcontracts
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Page i
SITE WORK
AGREEMENT
This SITE WORK AGREEMENT (this
“ Site Work Agreement ”) is entered into as of
the 23rd day of January, 2009, by and between Red River
Environmental Products, LLC, a Delaware limited liability company
(“ Owner ”), and BE&K Construction Company,
LLC, a Delaware limited liability company (“
Contractor ”). Owner and Contractor are sometimes
collectively referred to herein as the “ Parties.
” Capitalized terms used but not defined herein will have the
meaning set forth in the Preliminary EPC Agreement (defined
below).
W I T N E S
S E T H :
WHEREAS, Owner is developing,
constructing and intends to operate and maintain the Project
located at the Project Site in order to produce activated carbon
and electricity from the processing of lignite coal;
WHEREAS, Owner and Contractor are
parties to an Engineering, Procurement and Construction Agreement
dated as of January 29, 2008 (the “ Preliminary EPC
Agreement ”) pursuant to which the Parties agreed upon
the terms and conditions for providing certain preliminary
engineering, design and long lead procurement activities and
certain terms and conditions to be included in the Full EPC
Agreement and this Site Work Agreement;
WHEREAS, the Parties entered into a
Letter Agreement, dated as of August 15, 2008, as supplemented
by a Supplemental Letter Agreement, dated as of August 25,
2008 (collectively, the “ Letter Agreement ”),
providing for the performance of certain procurement services for
the Project, to include procurement of certain site work and other
related services;
WHEREAS, the Parties entered into an
Amended and Restated Engineering, Procurement and Construction
Agreement dated as of September 8, 2008 (the “ Full
EPC Agreement ”) providing for the performance of certain
engineering, design, procurement, construction, construction
management, testing, commissioning and related services for the
Project;
WHEREAS, pursuant to this Site Work
Agreement, the Parties intend to amend the Preliminary EPC
Agreement so as to provide for the performance of certain site work
and other related services described in the Preliminary EPC
Agreement, commenced pursuant to the Letter Agreement;
WHEREAS, the Parties desire for this
Site Work Agreement to be the complementary amendment to the
Preliminary EPC Agreement, such that the Full EPC Agreement and
this Site Work Agreement reflect the complete agreement of the
Parties and explicitly replace the Preliminary EPC Agreement and
the Letter Agreement;
Page 1 of 5
NOW, THEREFORE, in consideration of
the foregoing premises and the mutual covenants and agreements
contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Parties covenant and agree as follows:
ARTICLE 1
GENERAL
1.1 Preliminary EPC
Agreement . Unless
specifically amended or excluded pursuant to the provisions below,
the provisions of the Preliminary EPC Agreement relating to
“Phase 1” shall be applicable to and govern the
performance of the Site Work (defined below) under this Site Work
Agreement.
1.2 Scope of Work
. The Scope of Work to be performed
pursuant to this Site Work Agreement shall be as set forth in
Annex 1 (the “ Site Work ”).
1.3 Payment for the Site Work;
Scheduling of the Site Work.
1.3.1 Payment . Payments for
performance of the Site Work to be performed pursuant to this Site
Work Agreement shall be made in the same manner as provided for
payment of the Phase 1 Work under the Preliminary EPC Agreement,
with the exceptions provided in Annex 2. Contractor covenants to
use its commercially reasonable good faith efforts in a timely
fashion during prosecution of the Site Work (i) to verify the
performance of the Subcontractors under the Contractor Subcontracts
listed in Annex 3, (ii) to reconcile the estimated costs
provided in such Contractor Subcontracts with actual costs incurred
pursuant to such Contractor Subcontracts and (iii) to
anticipate any cost overruns or underruns pursuant to such
Contractor Subcontracts and to provide such information of such
overruns or underruns to Owner promptly upon learning of such, in
each case no less than the next weekly review meeting. Without
limiting the cost-reimbursable structure of this Agreement,
Contractor shall provide Owner for Owner’s approval any
proposed change under any of the Contractor Subcontracts which
change(s), in the aggregate and as may be presented by Contractor
to Owner from time to time, may cause the aggregate amount for
which Owner shall reimburse Contractor for costs Contractor incurs
under the Contractor Subcontracts to exceed the Owner’s
target cost of Nine Million Six Hundred Thirty-six Thousand Four
Hundred Twenty-three dollars ($9,636,423). The Parties acknowledge
this figure is not a lump sum amount, but rather is the target
amount set by Owner for the Site Work. The Parties acknowledge that
Owner has the right to reasonably reject any proposed scope of work
by Subcontractors performing Site Work in order to keep Site Work
costs within the said target amount, but once a subcontract has
been let, Contractor shall use its best efforts to manage such
subcontract to its scope in coordination with Owner with the goal
(but not a warranty) that the Site Work will be performed within
such cost.
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1.3.2 Scheduling . The Site
Work shall be performed in accordance with the Project Schedule, as
such term is defined in the Full EPC Agreement. Any
“Changes” effected under the Full EPC Agreement
regarding the Project Schedule shall be deemed Changes hereunder.
For purposes of clarity, any requested, directed or required
modification of the Project Schedule, as applicable, regarding the
Site Work shall be deemed “Changes” under the Full EPC
Agreement, and addressed pursuant to the change order provisions
thereunder.
1.4 Incorporation of the Site
Work . Upon completion
of, and payment for, the Site Work performed under this Site Work
Agreement, such Site Work shall become part of the
“Work” performed under the Full EPC Agreement and shall
be subject to the performance test, warranty and all other
requirements and obligations of Contractor thereunder. All amounts
paid to Contractor under this Site Work Agreement shall be part of
the “Total Work Cost”, as such term is defined under
the Full EPC Agreement.
1.5 Certain Taxes
. Contractor shall be responsible
for the administration and timely payment of all “Sales
Taxes”, with reimbursement by Owner therefor, and subject to
the corresponding terms and conditions pertaining to Sales Taxes
and “Taxes,” as each term is defined in the Full EPC
Agreement. To fulfill this obligation, Contractor shall submit all
required documents pursuant to Appendix L to the Full EPC Agreement
that pertain to the Site Work hereunder. Contractor shall remain
responsible for “Contra