Engineering and Construction Contract

Exhibit 10.2

EXECUTION VERSION

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ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

Dated as of March 30, 2007

by and between

Solar Star NAFB, LLC

and

PowerLight Corporation

 

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ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

This ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT, dated as of March 30, 2007 (“ Agreement ”), is by and between Solar Star NAFB, LLC, a limited liability company formed under the laws of the State of Delaware (“ Solar Star ”) and PowerLight Corporation, a corporation formed under the laws of the State of Delaware (“ Contractor ”).

RECITALS:

WHEREAS, Solar Star is developing an approximately 15 MWp solar photovoltaic power plant as more fully described in Schedule 4.1 (the “ System ”) to be located on approximately 140 acres owned by the Government of the United States of America, acting through Nellis Air Force Base (“ NAFB ”) in Clark County, Nevada and leased to Solar Star (the “ Site ”);

WHEREAS, NAFB has issued that certain Solicitation, Offer and Award to Contractor, which has been novated to Solar Star (the “ PPA ”), pursuant to which Solar Star has agreed to arrange for the construction of the System and provide all electrical energy produced therefrom to NAFB;

WHEREAS, Contractor designs, constructs and installs photovoltaic systems and as such is able to engineer and construct the System and all the necessary ancillary systems to make available electric energy to NAFB;

WHEREAS, Solar Star desires to engage Contractor to supply and install the System at the Site; and

WHEREAS, Contractor desires to provide such supply and installation services, all in accordance with the terms and conditions set forth in this Agreement.

NOW THEREFORE, in consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

AGREEMENT:

1. Definitions.

Unless otherwise required by the context in which any term appears: (a) capitalized terms used in this Agreement shall have the respective meanings set forth in this Section 1; (b) the singular shall include the plural and vice versa; (c) the word “including” shall mean “including, without limitation”, (d) references to “Sections”, “Schedules” and “Exhibits”

 

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shall be to sections, schedules and exhibits hereof; (e) the words “herein”, “hereof” and “hereunder” shall refer to this Agreement as a whole and not to any particular section or subsection hereof; and (f) references to this Agreement shall include a reference to all schedules and exhibits hereto, as the same may be amended, modified, supplemented or replaced from time to time.

“ Agreement ” shall have the meaning set forth in the preamble.

“ Applicable Law ” shall mean, with respect to any Governmental Authority, any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, injunction, registration, license, permit, authorization, guideline, governmental approval, consent or requirement of such Governmental Authority, as construed from time to time by any Governmental Authority.

“ Applicable Permits ” shall mean each and every national, autonomic, regional and local license, authorization, certification, filing, recording, permit or other approval with or of any Governmental Authority, including, without limitation, each and every environmental, construction or operating permit and any agreement, consent or approval from or with any other Person that is required by any Applicable Law or that is otherwise necessary for the performance of the Work or operation of the System, as listed on Schedule 4.4 .

“ Change Order ” shall mean a written document in the form of Schedule 1D signed by Solar Star and Contractor authorizing an addition, deletion or revision to the Work or an adjustment of the Contract Price or Construction Schedule issued after execution of this Agreement.

“ Construction Schedule ” shall mean the schedule for prosecution of the Work as set forth on Schedule 1A .

“ Contract Documents ” shall mean this Agreement, the exhibits and schedules hereto, and drawings, specifications, plans, calculations, models and designs that are part of Exhibit 1 and that have been prepared by Contractor or any Subcontractor exclusively for the Work.

“ Contract Price ” shall mean the amount for performing the Work that is payable to Contractor as set forth in Section 17.1 , as the same may be modified from time to time in accordance with the terms hereof.

“ Contractor ” shall have the meaning set forth in the preamble.

“ Contractor Representative ” shall mean the individual designated by the Contractor in accordance with Section 3.2 .

 

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“ Disclosing Party ” shall have the meaning set forth in Section 34 .

“ Dispute ” shall have the meaning set forth in Section 32.1 .

“ Dollar ” and “ $ ” shall mean the lawful currency of the United States of America.

“ Effective Date ” shall mean the date on which this Agreement becomes effective, as defined in Section 13.1 .

“ Equipment ” shall mean (a) all materials, supplies, apparatus, machinery, equipment, parts, tools, components, instruments, appliances, spare parts and appurtenances thereto that are required for prudent design, construction or operation of the Systems in accordance with Industry Standards and (b) all materials, supplies, apparatus, machinery, equipment, parts, tools, components, instruments, appliances, spare parts and appurtenances thereto described in, required by, reasonably inferable from or incidental to the Work or the Contract Documents.

“ Final Completion ” shall mean satisfaction or waiver of all of the conditions for completion of the System set forth in Section 6 .

“ Force Majeure Event ” shall mean, when used in connection with the performance of a Party’s obligations under this Agreement, any act or event (to the extent not caused by such Party or its agents or employees) which is unforeseeable, or being foreseeable, unavoidable and outside the control of the Party which invokes it, and which renders said Party unable to comply totally or partially with its obligations under this Agreement. In particular, any of the following shall be considered a Force Majeure Event:

 

(a)

war (whether or not war is declared), hostilities, revolution, rebellion, insurrection against any Governmental Authority, riot, terrorism, acts of a public enemy or other civil disturbance;

 

(b)

acts of God, including but not limited to, storms, floods, lightning, earthquakes, hailstorms, ice storms, tornados, typhoons, hurricanes, landslides, volcanic eruptions, fires, winds in excess of ninety (90) miles per hour, and objects striking the earth from space (such as meteorites), sabotage or destruction by a third party (other than any contractor retained by or on behalf of the Party) of facilities and equipment relating to the performance by the affected Party of its obligations under this Agreement;

 

(c)

strikes (whether local, regional, national or sectorial), walkouts, lockouts or similar industrial or labor actions or disputes; and

 

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(d)

acts of any Governmental Authority that materially restrict or limit Contractor’s access to the Site or its activities at the Site; provided that no act by the Government of the United States of America shall constitute a Force Majeure Event in respect of any obligation of Solar Star hereunder regarding Work completed or in process (such as Equipment ordered but not yet received) as of the date and time of such Force Majeure Event.

“ Governmental Authority ” shall mean any national, autonomic, regional, province, town, city, or municipal government, whether domestic or foreign, or other administrative, regulatory or judicial body of any of the foregoing.

“ Hazardous Material ” shall mean oil or petroleum and petroleum products, asbestos and any asbestos containing materials, radon, polychlorinated biphenyl’s (“PCBs”), urea formaldehyde insulation, lead paints and coatings, and all of those chemicals, substances, materials, controlled substances, objects, conditions and waste or combinations thereof which are now or become in the future listed, defined or regulated in any manner by any federal, state or Applicable Law.

“ Indemnified Party ” shall have the meaning set forth in Section 25.4 .

“ Indemnifying Party ” shall have the meaning set forth in Section 25.4 .

“ Industry Standards ” shall mean those standards of care and diligence normally practiced by solar engineering, construction and installation firms in performing services of a similar nature in jurisdictions in which the Work will be performed and in accordance with good engineering design practices, Applicable Permits, specifications and processes recommended by the equipment manufacturers, and other standards established for such Work.

“ Knowledge Group ” means Gregory Rosen, Howard Wenger, Bruce Ledesma Gary Wayne, Kevin Hennessy, and Dan Shugar.

“ MWp ” means MWdc, which is the manufacturer’s rated wattage of a photovoltaic system.

“ Notice to Proceed ” means the notice to be delivered to the Contractor by Solar Star instructing Solar Star to commence the Work, which notice shall be reasonably acceptable to the Contractor.

“ Party ” shall mean, individually, each of the parties to this Agreement.

 

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“ Performance Tests ” means, with respect to each Phase, the tests of the portion of the System to be brought online conducted in connection with such Phase, as more particularly described in Schedule 1B .

“ Person ” shall mean any individual, corporation, partnership, company, joint venture, association, trust, unincorporated organization or Governmental Authority.

“ Phase ” means each of Phase I, Phase II and Phase III.

“ Phase I ” means the construction phase projected to achieve Substantial Completion on ***, comprising a portion of the System having a nominal generating capability of approximately 33% of the total MWp of System, as described more fully in Schedule 4.1.

“ Phase II ” means the construction phase projected to achieve Substantial Completion on ***, comprising an additional portion of the System having a nominal generating capability of approximately 33% of the total MWp of System, as described more fully in Schedule 4.1.

“ Phase III ” means the construction phase projected to achieve Substantial Completion on ***, comprising an additional portion of the System having a nominal generating capability of approximately 34% of the total MWp of System, as described more fully in Schedule 4.1.

“ PPA ” shall have the meaning set forth in the second recital.

“ Project Documents ” shall include the PPA and other key documents set forth in Schedule 1C .

“ Receiving Party ” shall have the meaning set forth in Section 32 .

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

“ Schedule of Values ” shall mean the breakdown and valuation of the work for progress payment purposes as set forth on Schedule 1E .

“ Site ” shall have the meaning set forth in the first recital, and is more fully described in Exhibit 1 hereto.

“ Solar Star ” shall have the meaning set forth in the preamble.

“ Solar Star’s Representative ” shall mean the individual designated by Solar Star in accordance with Section 3.1 .

 

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“ Subcontractor ” shall mean any Person, other than Contractor and Suppliers, retained by Contractor to perform any portion of the Work (including any Subcontractor of any tier) in furtherance of Contractor’s obligations under this Agreement.

“ Substantial Completion ” shall mean, for each Phase, satisfaction or waiver of all of the conditions set forth in Section 13.3 .

“ Substantial Completion Date ” shall mean the actual date on which the Substantial Completion of the System, as defined in Section 13.3 , has occurred.

“ Suppliers ” shall mean those Equipment suppliers with which Contractor contracts to build the System.

“ Technical Advisor ” shall mean the independent engineering firm appointed by Solar Star to supervise the completion of the Performance Tests and execute the certificates approving any Performance Test contemplated in Section 4.6 .

“ Technical Dispute ” shall have the meaning set forth in Section 32.2 .

“ Warranty ” shall mean the warranty of Contractor set forth on Schedule 23.1 .

“ Work ” shall mean all obligations, duties, and responsibilities assigned to or undertaken by Contractor and described on Schedule 4.1 with respect to the System.

2. Scope . Contractor shall (a) provide, on a turnkey basis, all professional design and engineering services, Equipment procurement, supervision, labor, materials, equipment, tools, construction Equipment and machinery, utilities, transportation, and procurement of the Applicable Permits for the System (but excluding any related fees), and other facilities, items and services, in each case to the extent necessary for the proper execution and completion of each Phase, in accordance with the Contract Documents, which are each made a part hereof, and (b) supervise and direct the Work in accordance with Industry Standards. Contractor shall have sole control over the engineering, design and construction means, methods, techniques, sequences, and procedures and for coordination of all portions of the Work under this Agreement unless the Agreement specifically provides otherwise.

3. Representatives .

3.1 Solar Star Representatives. Solar Star designates, and Contractor agrees to accept, Joe Kastner as Solar Star Representative for all matters relating to Contractor’s performance of the Work (except for the execution of the certificates approving any Performance Test contemplated in Section 4.6 ). However, for the exclusive purposes of executing the certificates approving any Performance Test contemplated in Section 4.6 , Solar Star

 

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unconditionally and irrevocably appoints the Technical Advisor as its representative. The actions taken by Solar Star Representative regarding such performance shall be deemed the acts of Solar Star and shall be fully binding for Solar Star. Solar Star may, upon written notice to Contractor, pursuant to Section 33 hereof, change the designated Solar Star Representative or Technical Advisor; provided , however , that Solar Star shall notify Contractor of the replacement of the Technical Advisor at least one (1) month prior to the beginning of the first Performance Test contemplated in Section 4.6 .

3.2 Contractor Representatives . Contractor designates, and Solar Star agrees to accept, Richard Hanson as Contractor Representative for all matters relating to Contractor’s performance under this Agreement. The actions taken by Contractor Representative shall be deemed the acts of Contractor. Contractor may, upon written notice to Solar Star, pursuant to Section 33 hereof, change the designated Contractor Representative.

3.3 The Parties shall vest their Representatives with sufficient powers to enable them to assume the obligations and exercise the rights of Contractor or Solar Star, as applicable, under this Agreement.

3.4 Notwithstanding Sections 3. 1 and 3.2 , all amendments, Change Orders, notices and other communications between Contractor and Solar Star contemplated herein shall be delivered in writing and otherwise in accordance with Section 33 .

 

4.	The Work .

4.1 Subject to Section 21 , Contractor shall perform the Work in accordance with the express description thereof on Schedule 1C .

4.2 Contractor shall perform all Work in accordance with Industry Standards, Applicable Law, Applicable Permits and, to the extent applicable, the terms and conditions of the Project Documents.

4.3 Contractor shall perform engineering and design services, using qualified architects, engineers and other professionals selected and paid for by Contractor, in each case as are necessary to prepare all Contract Documents and submit the Contract Documents to Solar Star for its review and approval.

4.4 Contractor, at its expense, shall obtain, and shall file on a timely basis any documents required to obtain any necessary Applicable Permits on a timely basis. Contractor shall pay for all taxes, fees and costs in order to obtain the Applicable Permits for which Contractor is responsible under this Section 4.4 .

 

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4.5 Contractor, at its expense, shall purchase, transport, deliver, inspect to the extent it deems necessary, and construct and install all Equipment necessary or useful in order to complete the System in a manner consistent with Industry Standards. Contractor shall use commercially reasonable efforts to maintain standard manufacturer’s and supplier’s warranties for the Equipment. With respect the System, Contractor shall assign to Solar Star all of Contractor’s right, title and interest in each component of the System upon delivery thereof to the Site. In addition, upon Substantial Completion of each Phase, Contractor shall assign to Solar Star all related manufacturer’s and/or supplier’s warranties for the applicable Phase.

4.6 Contractor shall startup each Phase and perform the Performance Tests therefor and for the System described on Schedule 4.6 . Solar Star shall provide such electricity and consumables as may be required to carry out the Performance Tests. The Contractor’s technical personnel (or, when applicable the installer and/or manufacturer’s personnel, with Contractor’s supervision) shall operate the applicable Phase during the Performance Tests, although Solar Star (and Solar Star’s personnel) shall be entitled to be present during any Performance Test. Any third party entrusted with the supervision, oversight or quality control of Contractor shall be entitled to observe the Performance Tests. Contractor shall provide Solar Star with at least seven (7) days’ prior written notice of the commencement of each Performance Test at Substantial Completion of a Phase in order to permit Solar Star’s Representative coordinate attendance and observation of the Performance Tests.

Upon completion of the relevant Performance Tests, Contractor shall submit to the Technical Advisor the certificate of the results thereof for its approval or rejection. Solar Star and Contractor agree that the approval or rejection by the Technical Advisor shall fully bind Solar Star, and that no certificate of the results of the Performance Tests executed by Solar Star’s Representative (and not by the Technical Advisor) shall be a valid approval or rejection of such Performance Tests.

If the results of the Performance Test can be obtained at the Site immediately following the performance of the Performance Test and the Performance Test has been completed successfully, Solar Star’s Representative and Contractor’s Representative shall execute the relevant certificate including the results achieved in the Performance Test. If the results of the Performance Test cannot be obtained at the Site immediately following the performance of the Performance Test, Contractor shall submit promptly the relevant certificate containing the results of such Performance Test to Solar Star’s Representative as soon as practicable. Solar Star’s Representative shall promptly review such certificate and the results set forth therein and shall determine whether the Performance Test has been successfully completed within five (5) business days following receipt of such certificate.

If any Phase (or component thereof) fails to satisfy any Performance Test, Solar Star’s Representative and Contractor’s Representative shall execute the relevant certificate

 

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including the results achieved in the relevant Performance Test for such Phase. Contractor shall repeat the Performance Test for the applicable Phase or component one or several times before Substantial Completion of the applicable Phase. Contractor shall take all corrective actions so that Phase or component may successfully complete the Performance Tests, without prejudice to Solar Star’s rights and remedies in accordance with this Agreement; provided, however, that if such Phase or component does not successfully complete the Performance Tests before the Substantial Completion of the applicable Phase, the applicable portion of the Contract Price shall be adjusted in accordance with Section 17.1 .

If any Dispute regarding the Performance Tests arises, Contractor shall be entitled to submit the Dispute to an independent expert in accordance with Section 32.2 . If the independent expert contemplated in Section 32 determines that any Performance Test has been completed successfully, such decision shall prevail and shall be binding on Solar Star, Contractor and the Technical Advisor and, therefore, the relevant Performance Test shall be deemed approved for all the purposes contemplated in this Agreement.

4.7 Contractor shall provide to Solar Star a copy of the operations and maintenance manual for the System. Contractor shall provide the drafts and the final version of the operations and maintenance manual on or before the dates contemplated in Section 4.12 . After Final Completion, Contractor shall remove debris, unused equipment (other than spares) and surplus materials from the portion of Site where the System is located and leave such portion of the Site in “broom clean” condition.

4.8 Solar Star shall be solely responsible for soliciting and obtaining any subsidies, rebates or other incentives that may be available from any Governmental Authority pursuant to or in connection with the purchase of the System or otherwise, and Contractor makes no representation or warranty to Solar Star as to the availability of any of such subsidies, rebates or incentives. If reasonably requested by Solar Star, Contractor shall, at Contactor’s sole cost and expense, provide Solar Star reasonable assistance in obtaining such subsidies, rebates or incentives. IN NO CASE SHALL CONTRACTOR HAVE ANY LIABILITY TO SOLAR STAR FOR ANY FAILURE BY ANY OF ITS INVESTORS TO OBTAIN ANY OR ALL OF THE BENEFIT OF ANY INVESTMENT TAX CREDIT OR DEPRECIATION.

4.9 Exclusions . Contractor shall not perform any work or activity beyond the scope of the Work, as defined in this Agreement. In particular, the following shall not be included in the Work and therefore shall be performed by Solar Star:

4.9.1 Solar Star shall provide the Site for the Work and continuous and suitable access thereto so that Contractor may gain access to the Site to perform the Work as soon as any necessary work permits, licenses and authorizations are obtained;

 

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4.9.2 Solar Star shall select its own personnel so that it is present at the Performance Tests prior to the date of Substantial Completion of each Phase and entry into commercial operation of the applicable Phase;

4.9.3 Solar Star shall be responsible for hiring any third party entrusted with the supervision, oversight or quality control of Contractor, such third party shall not, however, be responsible for the quality assurance and control of Work, other than reporting to Solar Star;

4.9.4 Solar Star shall be solely responsible for securing and paying for all asset management services relating to the System and will not require any such services from Contractor;

4.9.5 Solar Star shall be solely responsible for, and shall bear any fees, costs and expenses of, obtaining any authorization or permit, and the making of any filing, certification or declaration, required under state or federal energy laws or regulations; provided that Contractor shall provide reasonable cooperation to Solar Star in connection with such efforts; and

4.9.6 Contractor shall not be responsible for any environmental liabilities relating to the Site, except for such pollution, toxic emissions, and other Hazardous Materials as are caused by Contractor during construction of the System and for Hazardous Materials associated with the existing landfill at Site which are disturbed or removed during Contractor’s provision of Services under this Agreement; provided , however , that Contractor shall be required to comply with all applicable environmental laws and regulations during construction of the System without prejudice to the provisions of Section 28.2.

4.10 Title; Risk of Loss .

4.10.1 From the Effective Date and until the date of Substantial Completion of a Phase, and subject to Sections 4.10.2, 4.10.3 and 4.10.4, Contractor assumes risk of loss and full responsibility for the cost of replacing or repairing any damage to the applicable Phase and all materials, Equipment, supplies and maintenance equipment (including temporary materials, equipment and supplies) that are purchased by Contractor for permanent installation in or for use during construction of such Phase, regardless of whether Solar Star has title thereto under this Agreement.

4.10.2 Solar Star shall bear the risk of loss and full responsibility in respect of a Phase from and after the date of Substantial Completion of such Phase, and if any component of such Phase is lost or damaged for whatever reason from and after such date, then Contractor shall restore or rebuild any such loss or damage and complete the

 

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Work in accordance with this Agreement at the sole cost and expense of Solar Star; provided , however , that Contractor shall not be obligated to restore or rebuild any such loss or damage unless Solar Star has obtained and maintained the insurance that Solar Star is required to maintain pursuant to Section 24 and Contractor has received reasonable assurances from Solar Star that Solar Star will prosecute such claim in a commercially reasonable manner and Contractor will receive the insurance proceeds, if any, paid under such Solar Star-maintained insurance policy in accordance with the disbursement provisions of this Agreement.

4.10.3 Notwithstanding anything herein to the contrary, but subject to the following sentence, Contractor shall bear the risk of loss and full responsibility for the cost of restoring or rebuilding any damage to such Phase and all materials, Equipment, supplies and maintenance equipment (including temporary materials, equipment and supplies) that are purchased by Contractor or Solar Star for permanent installation in or for use during construction of such Phase to the extent caused by a Force Majeure Event occurring at any time from the Effective Date until the date Substantial Completion of the applicable Phase. In light of the foregoing, Contractor shall obtain and maintain a builder’s risk policy in accordance with Schedule 24 ; provided that Force Majeure Events not covered by such builder’s risk policy are not assumed by Contractor, and shall entitle Contractor to obtain a Change Order in good faith on commercially reasonable terms except if Solar Star reasonably determines that the Change Order is so substantial as to permit Solar Star to terminate the Agreement pursuant to 11.1.1(D) and Solar Star elects to so terminate the Agreement.

4.10.4 Notwithstanding anything herein to the contrary, Solar Star shall bear the risk of loss and full responsibility for the cost of replacing or repairing any damage to such Phase and all materials, Equipment, supplies and maintenance equipment (including temporary materials, equipment and supplies) that are purchased by Contractor or Solar Star for permanent installation in or for use during construction of such Phase to the extent caused by the negligent, grossly negligent or willful acts of Solar Star or its agents, employees or representatives.

4.11 Training of Solar Star’s Personnel.

4.11.1 Contractor shall provide Solar Star’s personnel with up to two (2) days of on-site operation and maintenance training in respect of the System. Solar Star’s personnel shall have the qualifications necessary to perform their activities and will be hired by Solar Star.

4.11.2 Scheduling of training will be coordinated between Contractor and Solar Star; provided that the operation and maintenance manuals and such training will be provided within the thirty (30) days following the Substantial Completion Date of Phase I.

 

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4.12 Technical Contract Documents to be delivered by Contractor. Contractor shall deliver Solar Star an owner’s manual, operator’s manual and as-built drawings for the System no later than thirty (30) days after Substantial Completion of Phase III occurs. For the avoidance of doubt, the as-built drawings shall be included in the punchlist items contemplated in Section 13.3.

5. Inspection . All Work performed by Contractor and all Equipment shall be subject to inspection by Solar Star, but such right of inspection of the Work or Equipment shall not relieve Contractor of responsibility for the proper performance of the Work or Equipment to the extent provided under this Agreement. Contractor shall provide to Solar Star or Solar Star’s designee access to Contractor’s facility or facilities where the Work is being performed upon reasonable prior notice (at least forty-eight (48) hours), during business hours, and subject to compliance with Contractor’s safety rules and policies. Solar Star shall ensure that the inspections and Performance Tests do not affect the normal performance of this Agreement.

6. Final Completion.

Final Completion of the System shall be deemed to have occurred only if all punchlist items contemplated in Section 13.3 have been completed or waived. Upon Final Completion, Contractor shall submit to Solar Star a written statement requesting acknowledgement thereof. Such acknowledgment shall be executed by Solar Star within five (5) business days after the receipt of the receipt by Solar Star of such written statement unless Solar Star provides written notice of Contractor’s failure to achieve Final Completion. Execution of the acknowledgment or failure of Solar Star to provide written notice of Contractor’s failure to achieve Final Completion within five (5) business days shall constitute Final Completion.

7. Changes and Extra Work .

7.1 Without invalidating this Agreement, Solar Star may initiate a change in the Work on the System by advising Contractor in writing of the change believed to be necessary. As soon as practicable after notice, Contractor shall prepare and forward to Solar Star in writing the price for the extra or changed Work on such Phase pursuant to a Change Order and any required adjustment to the Construction Schedule or any other term or condition of this Agreement. Except for minor modifications in the Work not involving extra cost and not inconsistent with the purposes of the Work, and except in an emergency endangering life or property, all authorized extra Work or changes, and the agreed to price, shall be confirmed through a Change Order to this Agreement in respect of the relevant Phase. No change or extra Work shall be effective without a Change Order signed by Solar Star and accepted in writing by Contractor. The price shall include all costs associated with performing the extra Work or changes, including the impact on the Work, inefficiencies created by the extra Work or changes, and overhead associated with the extra Work or changes.

 

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7.2 All extra Work and changes shall be performed in accordance with the provisions and conditions of this Agreement, except as provided in the Change Order.

7.3 If Contractor’s price or time adjustment is not accepted, Contractor shall provide Solar Star Representative with the details of and backup for its price or time estimate. If the Parties fail to agree on a price, Solar Star Representative may authorize the extra or changed Work to be performed on a time and material basis in accordance with the rates specified in Schedule 1F.

7.4 Contractor may propose Change Orders to Solar Star if those Change Orders improve the System or are otherwise advisable for the Work. This shall not affect the obligation of Contractor to perform the Work and to deliver the System in the form agreed in this Agreement.

7.5 Any changes to the System or the Work required by changes in Applicable Law or requested by any Governmental Authority as a condition to issue an Applicable Permit shall entitle Contractor to request a Change Order in accordance with this Section 7 .

8. Protective Measures .

8.1 Contractor shall be responsible for all injury or damage to individuals or property that may occur as a result of its fault or negligence or that of its Subcontractors in connection with the performance of the Work. Contractor shall be responsible for the proper care and protection of all Equipment and materials furnished by Contractor and the Work performed until Final Completion of the Work for each Phase.

8.2 Contractor shall take all reasonably necessary precautions for the safety of its employees on the relevant part of the Site where the System is located and prevent accidents or injury to individuals on, about, or adjacent to the premises where the Work is being performed.

8.3 Contractor shall keep the relevant part of the Site where the System is located and surrounding areas free from accumulation of waste materials or rubbish caused by the Work, and upon Final Completion, shall remove from the relevant part of the Site where the System is located all waste materials, rubbish, tools, unused equipment (other than spares), machinery and surplus materials.

 

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9. Force Majeure . Contractor shall promptly notify Solar Star in writing of any delay or anticipated delay in Contractor’s performance of this Agreement due to a Force Majeure Event, and the reason for and anticipated length of the delay. Contractor shall be excused for any delays or defaults in the performance of its obligations under this Agreement that are the result of a Force Majeure Event. In the event of any Force Majeure Event, Contractor shall (i) exercise all commercially reasonable efforts to bring the situation caused by the Force Majeure event under control and mitigate the extent, duration, and impact of such Force Majeure Event on the Work and System and (ii) provide periodic notices to Solar Star with respect to its actions and plans for actions in accordance with (i) above and promptly notify to Solar Star of the cessation of the event or condition giving rise to it being excused from performance. Contractor shall be entitled to a reasonable extension of time for delays due to a Force Majeure Event; provided that any Force Majeure Event that prevents performance, or is reasonably expected to prevent performance, for more than ninety (90) days shall entitle the Contractor and Solar Star to terminate this Agreement; provided , further , that any Work done or materials furnished by Contracts in restoring or rebuilding any affected Phase will be paid for by Solar Star as extra Work pursuant to Section 7 . Any modification to the Construction Schedule pursuant to this Section 9 shall be documented by a written Change Order to this Agreement.

10. Unanticipated Conditions . If any unusual or unanticipated conditions exist or arise at the Site (such as Hazardous Materials, environmental conditions, pollution or archeological findings), which conditions would involve the incurrence by Contractor of any expenses to correct such conditions, Contractor shall submit a request for approval of the corrective work and payment of the related expenses to Solar Star, which approval shall not be unreasonably withheld, conditioned or delayed. The additional work resulting therefrom will be paid for by Solar Star as extra Work pursuant to Section 7 . Solar Star shall not be obligated to pay for such additional Work if such unusual or unanticipated conditions are in respect of geotechnical, subsurface, or seismic conditions of the Site which should have been anticipated by Contractor when Contractor completed its due diligence of the Site in order to identify any issues that could affect the foundation of the System.

11. Termination .

11.1 Termination by Solar Star :

11.1.1 Contractor agrees that Solar Star shall be entitled to terminate this Agreement upon the occurrence of any of the following circumstances:

(A) Contractor abandons the entire Work without just cause for more than thirty (30) days or fails to commence the Work without just cause for within thirty (30) days after the Effective Date, or

 

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(B) Contractor shall, except as expressly permitted hereunder, assign this Agreement in whole without the written authorization of Solar Star, or

(C) Contractor violates in any material respect any of the provisions of this Agreement, which violation remains uncured for thirty (30) days following Contractor’s receipt of written notice thereof from Solar Star.

(D) A Force Majeure Event creates such damage to the Work or System that, taking into account applicable insurance proceeds and payments from third parties received or reasonably anticipated to be received in respect of such Force Majeure Event, the Project is determined to be no longer economically viable pursuant to Section 4.10.3 .

11.1.2 In addition, upon the occurrence of any of the foregoing, Solar Star may instruct Contractor to discontinue all or any part of the Work, and Contractor shall thereupon discontinue the Work of such parts thereof. Solar Star shall thereupon have the right to continue and complete the Work or any part thereof, by contract or otherwise. Upon the occurrence of any of the circumstances contemplated in Sections 11.1.1(A) , 11.1.1(B) , 11.1.1(C) , or 11.1.1(D) , Contractor shall be liable to Solar Star, unless otherwise contemplate herein, for any and all damage and excess cost incurred by Solar Star in completing the Work, in each case to the extent caused by Contractor’s material breach of this Agreement.

11.1.3 The remedies in this Section 11.1 shall be inclusive and additional to any other remedies that may be available under Applicable Law, and no action by Solar Star shall constitute a waiver of any such right or remedy.

11.2 Termination by Contractor . Without limiting the provisions of Section 9 , Solar Star agrees that if (a) Solar Star shall become bankrupt or insolvent, or shall assign this Agreement, or sublet any part thereof, without the written authorization of Contractor or (b) Solar Star violates in any material respect any of the provisions of this Agreement, which violation remains uncured for thirty (30) days following Solar Star’s receipt of written notice thereof from Contractor, or (c) Solar Star executes this Agreement in bad faith, Contractor shall have all rights and remedies that may be available under Applicable Law against Solar Star with respect to this Agreement, including without limitation the right to suspend performance of the Work, to terminate this Agreement, and/or to require Solar Star to immediately post payment bonds.

11.3 Termination of Agreement . Except for Section 23 and subject to Section 37 , this Agreement shall terminate and be of no further force and effect upon satisfaction of the conditions set forth in Section 6 . Contractor shall satisfy the conditions set forth in Section 6 no later than June 30, 2008.

 

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12. Labor . Contractor shall use reasonable efforts to minimize the risk of labor-related delays or disruption of the progress of the Work. Contractor shall promptly take any and all reasonable steps that may be available in connection with the resolution of violations of collective bargaining agreements or labor jurisdictional disputes. Contractor shall advise Solar Star promptly in writing of any actual or threatened labor dispute of which Contractor has knowledge that might materially affect the performance of the Work by Contractor or by any of its Subcontractors. Notwithstanding the foregoing, the settlement of strikes, walkouts, lockouts or other labor disputes shall be at the discretion of the Party having the difficulty.

13. Commencement and Substantial Completion of Each Phase; Delay Liquidated Damages; Bonus .

13.1 Contractor shall perform the Work in accordance with Schedule 1A . The Work must commence on the date set forth in the Notice to Proceed, which shall be delivered no later than the Effective Date.

13.2 The target date on which Substantial Completion for each Phase is expected to occur is set forth on Schedule 1A . Contractor may claim a justified extension of the Substantial Completion date for the applicable Phase if it is or will be delayed in completing the Work for any of the following causes:

13.2.1 Change Orders agreed pursuant to this Agreement;

13.2.2 breach of this Agreement (including Section 4 ) or of a statutory duty by Solar Star;

13.2.3 suspension of the Work pursuant to Section 19 ;

13.2.4 delays in testing as contemplated in Sections 2.1 , 2.2 and 2.4 of Schedule 1B due to the lack of full sun conditions; or

13.2.5 a Force Majeure Event.

13.3 The following are conditions precedent to Substantial Completion of each Phase:

13.3.1 the relevant Phase is mechanically, electrically, and structurally constructed in accordance with the requirements of Schedule 4.1 of this Agreement, the Work and Industry Standards, except for non-critical punchlist items;

 

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13.3.2 the medium voltage infrastructure and the grid connection for such Phase are mechanically, electrically and functionally complete and capable of interconnection with the local utility and Contractor’s Representative provides written notice of satisfaction of such conditions to Solar Star’s Representative; and

13.3.3 Commissioning according to procedures set forth in Schedule 4.6 is completed successfully and the corresponding certificates are duly signed by Solar Star’s Representative and the Contractor’s Representative, both acting reasonably.

13.4 At Substantial Completion of a Phase Solar Star and Contractor shall agree on the punchlist items for such Phase. The punchlist shall be completed no later than two (2) months after Substantial Completion of the final Phase. Failure of Contractor to fulfill this obligation shall entitle Solar Star to complete the pending works on its own and charge the Contractor for the duly justified costs. Notwithstanding anything in this Agreement to the contrary, Substantial Completion shall not be withheld for failure to obtain any Applicable Permits that do not materially affect the lawful and technical operation of the System or any material portion thereof.

13.5 Delay Penalties . Subject to Section 13.2, for each Phase, if any portion of the System is not operational on the fifteenth calendar day after the applicable target Substantial Completion date set forth on Schedule 1A, thereafter Contractor shall pay to Solar Star an amount per day for each day of delay that is equal to the product of (a) *** multiplied by (b) a fraction, the numerator of which is ***and the denominator of which is ***. In no event shall this per day amount exceed ***. In addition to the foregoing, if any portion of the System does not achieve Substantial Completion prior to ***, Solar Star will be entitled to reduce the Contract Price by a value equal to *** multiplied by a fraction, the numerator of which is *** and the denominator of which is ***. If Contractor fails to pay such liquidated damages, Contractor agrees that Solar Star may deduct the amount thereof from any monies due, or that may become due, Contractor under this Agreement. The amounts payable under this Section 13.5 shall be Solar Star’s sole and exclusive remedy for Contrac