General Terms and Conditions for Engineering, Procurement, and Construction

(A)   the Purchase Order to be issued by FirstEnergy;

(B)   these General Terms and Conditions;

(C)   FirstEnergy’s Requirements;

(D)   the Drawings and Specifications;

(E)   any other documents forming a part of this Agreement.

(A)   Proposed Subcontractors . Prior to engaging any Subcontractor (other than any Contractor Affiliate) for performance of any part of the Project having an aggregate value in excess of [$ ******], Contractor   shall (i) notify FirstEnergy of such proposed Subcontractor as soon as possible during the selection process and furnish to FirstEnergy all information reasonably requested by FirstEnergy with respect to Contractor’s selection criteria (including copies of bid packages furnished to prospective Subcontractors and the qualifications of the proposed Subcontractors), and (ii) notify FirstEnergy no less than fifteen (15) Business Days prior to the execution of such Subcontract. FirstEnergy shall have the discretion, not to be unreasonably exercised, to reject any proposed Subcontractor. Contractor shall not enter into any Subcontract with a proposed Subcontractor rejected by FirstEnergy. FirstEnergy shall undertake in good faith to review the information provided by Contractor pursuant to this Section 2.3(A) expeditiously and shall notify Contractor of its decision to accept or reject a proposed Subcontractor as soon as practicable after such decision is made, provided, in the event that FirstEnergy does not inform Contractor of its decision to accept or reject a Subcontractor within five (5) Business Days, Contractor shall be entitled to deem that FirstEnergy has accepted such proposed Subcontractor. 

(B)   Delivery of Subcontracts . Contractor shall furnish FirstEnergy with a copy of all Subcontracts within ten (10) days after execution thereof.

(C)   Terms of Subcontracts . In addition to the requirements in Section 2.2 , each Subcontract will contain the following provisions:

(1)   the Subcontract (other than Subcontracts with Affiliates of Contractor) may be assigned to FirstEnergy or its designee, at the request of FirstEnergy and without the consent of the Subcontractor; and

(2)   the Subcontractor shall comply with and perform for the benefit of FirstEnergy all requirements and obligations of Contractor to FirstEnergy under this Agreement, as such requirements and obligations are applicable to the performance of the work under the Subcontract, including an indemnity for the benefit of FirstEnergy in substance the same as that included in Article 16 , the insurance requirements specified in Article 12 , and the provisions of Section 3.7 .

(A)   The Project tasks are described generally in Attachment A . The Project will be divided into a number of Subprojects, with each Subproject made up of an Air Quality Control system applied to one or more Generating Units. FirstEnergy, at its option, may proceed with any, all, or none of the Subprojects.

(B)   Development Phase . During the Development Phase of each Subproject, Contractor shall perform engineering, design, and development of the Subproject in accordance with Attachment A and in consultation with FirstEnergy. The Parties will mutually determine the scope of the Subproject, the Work Scope, and other parameters of the Subproject, the Target Construction Cost, the Project Schedule, and the Project Execution Plan, and will perform the other tasks described generally in this Agreement and in Attachment A . During the Development Phase of each Subproject, the Parties will mutually determine whether Contractor will contract with and assume responsibility for OEMs as a Subcontractor (a “Wrap Arrangement” ), or whether FirstEnergy will contract with major equipment vendors as an FE Vendor (an “FE Vendor Arrangement” ). Except as otherwise agreed, the Parties anticipate that the AQC Units associated with Generating Units 1 through 4 of the Sammis Plant will be performed as FE Vendor Arrangements. With respect to the AQC Units associated with Generating Units 5, 6, and 7 of the Sammis Plant, FirstEnergy, at its sole discretion, will determine whether the Subproject will be performed as an FE Vendor Arrangement or as a Wrap Arrangement. Except as otherwise mutually agreed, if the AQC Units associated with Generating Units 5, 6, and 7 are performed as Wrap Arrangements, then all such AQC Units will be treated together as a single Subproject. Further, to the extent that FirstEnergy elects to utilize Powerspan ECO technology with respect to a Wrap Arrangement, the Parties agree that the terms and conditions in this Agreement relating to such Wrap Arrangement shall be adjusted in a mutually agreeable manner to reflect that: (A) Contractor shall not be responsible for, among other things, (1) any Performance Liquidated Damages relating to the actual performance of the Powerspan ECO technology, or (2) any intellectual property indemnity obligations relating to the Powerspan ECO technology, (B) Schedule Liquidated Damages shall be applicable to achievement of Mechanical Completion after the Scheduled Mechanical Completion Date (instead of the achievement of Final Completion after the Guaranteed Final Completion Date), and (C) Contractor shall be entitled to a Change Order related to any changes in project scope to the Subproject related to the Powerspan ECO technology. Contractor may perform preliminary procurement or construction work prior to the Commencement Date under a partial Notice to Proceed. To the extent that FirstEnergy desires to utilize this Agreement in connection with any Subproject to be performed at a Site other than the W.H. Sammis facility, the Parties agree that it is their mutual anticipation that such Subprojects will be performed as part of this Agreement (subject to negotiation of and mutual agreement to site-specific changes hereto).

(C)   Construction Phase . After the Commencement Date of each Subproject, Contractor shall perform construction management, procurement, engineering, design, construction, startup, testing, and operations training for the Subproject in accordance with the Work Scope and the Project Execution Plan, in compliance with the Project Schedule and in consultation with FirstEnergy.

(D)   The Project shall include all engineering, procurement, construction, and testing of the Project, all equipment, Materials, labor, workmanship, apparatus, structures, inspection, manufacture, delivery, fabrications, transportation, and storage required in connection therewith, and all other items or tasks that are required to achieve Final Completion and Final Document Delivery for the individual Subprojects in accordance with the requirements of this Agreement. Contractor shall perform the Project in accordance with Good Practices, all Applicable Laws, all Applicable Codes and Standards, and all other terms and provisions of this Agreement. It is understood and agreed that the Project shall include any incidental work necessary to complete the Project in accordance with Good Practices, Applicable Law, Applicable Codes and Standards, and all other terms and provisions of this Agreement. Contractor shall be entitled to rely on only such items of information supplied by FirstEnergy as the Parties have mutually specified in the project design basis document during the Development Phase (the “FirstEnergy Reliable Information” ). Contractor’s Project Manager shall inform FirstEnergy if he learns of any inaccuracy, error, fault, or other defect in the FirstEnergy Reliable Information.

(A)   Procure, supply, transport, handle, and properly store and install all Materials, except where the Parties have agreed that FirstEnergy or its agents, subcontractors, or vendors will perform such services;

(B)   Provide construction, construction management (including the furnishing of all field supplies, tools, construction equipment, and all Site supervision and Craft Labor), inspection and quality control services required to ensure that the Project is performed in accordance herewith;

(C)   Negotiate all guarantees, warranties, delivery schedules and performance requirements (including schedule guarantees and performance guarantees) with all Subcontractors and FE Vendors on terms that are consistent with this Agreement, to the extent achievable;

(D)   Perform shop and other inspections of the work of Subcontractors and FE Vendors to ensure that such work meets all of the relevant requirements of this Agreement;

(E)   Contractor shall use reasonable commercial efforts to achieve FirstEnergy’s corporate supplier sourcing goals in awarding Subcontracts under the Project. By way of example, FirstEnergy’s corporate supplier sourcing goals for 2005 are as follows:

(1)   Small business spend > or = 20.00%

(2)   Small disadvantaged business spend > or = 3.00%

(3)   Small woman owned business spend > or = 3.00%

(4)   HUBZone Business spend > or = 0.27%

(5)   Veteran owned business spend > or = 0.04%

(6)   Service disabled veteran business spend> or = 0.0013%

(A)   General . Contractor shall, as part of the Project, perform all design and engineering work in accordance with this Agreement. Before commencing design and engineering, the Contractor shall satisfy itself regarding FirstEnergy’s Requirements (including design criteria and calculations). Contractor’s Project Manager shall give notice to FirstEnergy of any error, fault or other defect in FirstEnergy’s Requirements of which he becomes aware.

(B)   Drawings and Specifications . Contractor shall prepare the Drawings and Specifications for the Project. The Drawings and Specifications shall be based on the requirements of this Agreement, including FirstEnergy’s Requirements, Good Practices, Applicable Codes and Standards, Applicable Law, and all applicable provisions of the Agreement, and in a fashion consistent therewith shall develop in detail the requirements of this Agreement. 

(1)   General Review . During the development of the Drawings and Specifications, Contractor shall provide FirstEnergy with the opportunity to perform informal reviews of the design and engineering in progress. The informal reviews may be conducted at Contractor’s office located in Frederick, Maryland, or at any of its Subcontractor’s offices. The reviews may be of progress prints, computer images, draft documents, working calculations, draft specifications or reports, Drawings, Specifications or other design documents determined by FirstEnergy.

(2)   Submission by Contractor . Contractor shall submit copies of the Drawings and Specifications identified in the Project Execution Plans or as subsequently requested by FirstEnergy as requiring formal review, comment, and approval to FirstEnergy. Each submission of Drawings and Specifications shall include a statement that to the best of Contractor’s knowledge such Drawings and Specifications comply with Section 3.3(B) .

(3)   Review Periods . If Contractor submits Drawings and Specifications within the applicable time frame set forth in the Project Schedule, FirstEnergy shall have a period of [******] Business Days after receipt of such submission to issue written comments, proposed changes and/or written approvals or disapprovals of the submission. FirstEnergy’s review periods shall be extended by the period of any delay due to a Force Majeure Event. 

If FirstEnergy does not issue any comments, proposed changes or written approvals or disapprovals within such time periods, Contractor may proceed with the development of such Drawings and Specifications, but FirstEnergy’s lack of comments, approval or disapproval, if applicable, shall in no event constitute an approval of the matters submitted or bar FirstEnergy from subsequently commenting thereon or disapproving thereof; provided, however, Contractor shall not proceed with construction until the required Drawings and Specifications have been approved in writing by FirstEnergy as set forth in this Section 3.3(C)(3) .

In the event that FirstEnergy disapproves the Drawings or Specifications, FirstEnergy shall provide Contractor with a written statement of the reasons for such rejection, and Contractor shall provide FirstEnergy with revised and corrected Drawings and Specifications as soon as possible thereafter; provided that Contractor shall not receive any extensions of time to perform any of its obligations hereunder.

If Contractor submits Drawings and Specifications at times other than shown in the Project Schedule, Contractor shall give FirstEnergy advance notice prior to such submissions to facilitate schedule adjustments when and if necessary. Thereafter, FirstEnergy shall use good faith efforts to provide comments, approval and/or disapproval as expeditiously as reasonably practical, and at Contractor’s request, FirstEnergy shall state the date by which it believes that it will be able to respond to such submission.

FirstEnergy’s review or approval of any Drawings and Specifications shall not in any way be deemed to limit or in any way alter Contractor’s responsibility to perform and complete the Project in strict accordance with the requirements of this Agreement.

Upon FirstEnergy’s written approval of the Drawings and Specifications, such Drawings and Specifications shall be the Drawings and Specifications that Contractor shall use to construct the Project. Upon approval by FirstEnergy, such Drawings and Specifications shall form a part of this Agreement.

(D)   Design Licenses . Contractor shall perform all design and engineering services through design professionals licensed in accordance with Applicable Law, and all design and engineering deliverables shall be stamped by design professionals licensed in accordance with Applicable Law. If any design and engineering services are to be performed offshore, then FirstEnergy shall have the right to approve such services and the billing rates applied to such services.

(E)   Other Information . Contractor shall provide all other information and documentation as may be reasonably requested by FirstEnergy.

(A)   Key Project Personnel . Exhibit 3.4(A) is a list of Contractor’s key personnel who will be responsible for supervising the performance of Contractor’s services. Contractor shall not remove any such personnel from the Project or from any Subproject without FirstEnergy’s prior written consent. If any such individual is so removed or otherwise ceases to be available to the Project or any Subproject for any reason, any replacement personnel shall be subject to the prior written approval of FirstEnergy. The individuals identified as technical specialists on such Exhibit shall be available as needed to support the Subproject.

(B)   Employees . Contractor shall employ for the Project only persons known to it to be experienced, qualified, reliable and trustworthy. At FirstEnergy's request, the credentials of any of Contractor's employees assigned to perform the Project shall be submitted to FirstEnergy in advance of such assignment. Contractor shall require all persons performing the Project at FirstEnergy's Site to be trained in and to comply with Contractor's policies, procedures and directives applicable to activities at FirstEnergy's Site, including security, environmental protection, worker health and safety, sexual harassment, access, use of controlled substances, and similar activities, such policies, procedures and directives to be no less rigorous than those of FirstEnergy. During the performance of the Project, FirstEnergy may object to any Contractor employee who, in FirstEnergy's opinion, does not meet these criteria. In such case, Contractor shall immediately replace or remove such employee.

(C)   Supervision . Contractor and its Subcontractors shall be responsible for enforcing strict discipline and good order among their employees, and shall assume full responsibility for their employees’ acts and omissions in and around FirstEnergy’s Site. Contractor’s Project Manager shall enforce all environmental protection and worker health and safety and similar requirements applicable to the Project. Contractor's Project Manager shall be thoroughly competent and experienced in the line of work to be performed. He shall represent the Contractor on the job and have the authority to bind the Contractor.

(D)   Substance Abuse . The Contractor shall comply with the FirstEnergy Generation Corp. Substance Abuse Testing Program (FE SATP), a copy of which is attached hereto as Exhibit 3.4(D)  

(E)   Labor Requirements . Contractor and its Subcontractors shall comply with the requirements set forth in Exhibit 3.4(E) with respect to labor employed in connection with the Project

(A)   On-Site Facilities . The Contractor will, unless otherwise specified, construct and remove all temporary buildings, structures, construction plant, change houses, portable lavatories and temporary storage buildings required for its own use or that of its Subcontractors, if any. The location of such buildings, storage areas for materials and employees' parking space, if on FirstEnergy's site, will be designated by FirstEnergy's Designated Representative.

Should FirstEnergy provide (at a location of its choice within reasonable distance of the Project area) the water and power source required for performance of the Agreement, Contractor shall accept these services at its own risk. However, FirstEnergy will diligently pursue restoration of any such services which may be interrupted. If such water and power sources shall be provided by FirstEnergy, they shall be identified elsewhere in the Project specification. Otherwise, Contractor shall be responsible for providing the water and power sources necessary for the performance of the Agreement.

The Contractor agrees that when any use is to be made by the Contractor or by any of its Subcontractors or by any of its or their employees for its or their convenience of any equipment, facilities, office space or apparatus (including scaffolds, ladders, cranes, derricks, platforms, runways, bridges, floor, tools, barricades, or other facilities) which are owned, rented or leased by FirstEnergy or FirstEnergy's other contractor(s), or contracted for from other contractors, the Contractor shall prior to and during such use satisfy itself as to the safety of such facilities; and the Contractor, subject at all times to the provisions and limitations of Article 16 , hereby assumes the entire responsibility and liability for all injuries, claims, damages, or losses whatsoever resulting from the use of such equipment, facilities, or apparatus. Contractor agrees to execute all necessary documents required by FirstEnergy or FirstEnergy's other Contractors, to acknowledge inspection of such equipment or apparatus prior to use.

(B)   Areas of Project and Non-Interference with Other Activities on Site . The Contractor shall use only the area designated by FirstEnergy's Designated Representative, and other parts of FirstEnergy's Site shall not be used for any purpose without the prior approval of FirstEnergy's Designated Representative. If any part of the Project is to be performed on an easement or right-of-way held by FirstEnergy, the Contractor shall limit its activities to that area and not allow its employees or Subcontractors outside such area. The Contractor shall direct its employees or employees of its Subcontractors to enter and leave the premises only through access ways, and to park only in parking areas designated by FirstEnergy's Designated Representative.

The portion of the areas designated that constitutes the construction site shall be under the control of the Contractor unless otherwise agreed by the Contractor and FirstEnergy's Designated Representative.

The Contractor shall, to the maximum extent reasonably practicable, so conduct its work so as to avoid any necessity to curtail the operations of FirstEnergy's Site. Where the Project requires connection to or modification of existing facilities, FirstEnergy's Designated Representative will arrange for the Contractor to perform such work at FirstEnergy's convenience and the Contractor shall at all times, to the maximum extent reasonably practicable, except when required to install such facilities, keep its employees and cause its Subcontractors to keep their employees out of, off of, and out of contact with FirstEnergy's Site and facilities.

FirstEnergy shall provide access to the existing facilities at the times indicated on the Project Schedule to allow the Contractor to connect to or make modifications to the existing facilities, in accordance with the scope of the Project. The Project Schedule completion date and the Target Construction Cost for each Subproject shall be subject to equitable adjustment as appropriate in accordance with Article 8 in the event that such access is not provided.

The Contractor shall conduct its services so as to minimize interference with other work in progress. In case of dispute between the Contractor and other contractors engaged by FirstEnergy, the decision of FirstEnergy's Designated Representative coordinating the Project shall be final.

The Contractor shall not, under the terms of this Agreement, permit its employees or the employees of any of its Subcontractors to operate the existing FirstEnergy’s Site or any of its facilities or to perform maintenance work on the existing FirstEnergy’s Site or any of its facilities, except such maintenance work as is necessary for construction purposes.

(C)   Access to Project; Surveillance . FirstEnergy shall be afforded free access at all reasonable times upon prior notice to the Contractor's or any of its Subcontractors’ work, facilities, and records, to perform surveillance and reviews of work completion and quality, and contract cost and quality records (except with respect to the financial information described in the last sentence of Section 3.7(B)) , and to perform work sampling observation and recording surveillance activities. Any such surveillance or review performed by FirstEnergy or any failure by FirstEnergy to so perform shall in no manner reduce the responsibility and liability of Contractor or its Subcontractors or excuse them from performance. Access to a Subcontractor's facilities and records will be coordinated through the Contractor.

(D)   Responsibility for Materials and Work Prior to Acceptance . The Contractor shall receive, check in, unload, store, handle and protect all materials to be used, furnished or erected by the Contractor or its Subcontractors. Subject to Section 18.4(A) , the property being used, furnished and/or erected, installed or constructed under the Agreement shall be considered to be in the care, custody and control of the Contractor, and the Contractor shall be responsible for all materials and work until permanently placed, installed or constructed and accepted by FirstEnergy.

The Contractor shall satisfactorily dispose of all rubbish resulting from the operations under this Agreement on a day-to-day basis and upon completion of the Project shall perform all work necessary to restore territory embraced within FirstEnergy’s Site of its operations to at least as good order and condition as at the beginning of the Project under the Agreement.

(E)   Security and Safety . The Contractor’s site-specific safety program shall, at a minimum, comply with the FirstEnergy Contractor Safety Program for Fossil Generation, a copy of which is attached hereto as Exhibit 3.5(E)-1 The Contractor shall take the necessary precautions to render the Project secure in order to decrease the probability of accident from any cause and to avoid delay in completion of the Project. The Contractor shall use proper safety appliances and provide first aid treatment and ambulance service for emergency treatment of injuries and shall comply with all rules, laws, regulations of the United States of America, the State of Ohio, or any political subdivision or duly constituted Governmental Authority with regard to the safe performance of the Project. Contractor shall also comply with the requirements set forth in Exhibit 3.5(E)-2 (OSHA compliance and safety).

The Contractor shall provide temporary fire protection facilities to the extent required by FirstEnergy during the construction period. The Contractor may be working adjacent to or concurrent with FirstEnergy's operations or other construction activities. The Contractor shall maintain close cooperation and flexible working arrangements with FirstEnergy in consideration of adjacent structures and work. The Contractor shall maintain close cooperation with other contractors working at the site.

Upon commencing work, the Contractor shall establish and maintain sanitary facilities for its employees and those of its Subcontractors, to the extent such facilities are not provided by FirstEnergy and in conformity with local and state regulations. The Contractor will remove these facilities upon completion of the Agreement and clean the site to FirstEnergy's satisfaction.

Contractor shall maintain adequate project security guards and procedures for the area of any work to be performed under a Subproject. Without limiting Contractor’s obligations hereunder, FirstEnergy may at its discretion provide a security guard at the entrance and exits to the site who shall have the right to check all persons entering and leaving the site, check all automobiles, cars and trucks and carry out such control of persons and vehicles as deemed necessary.

(F)   Sales Prohibited . The Contractor is advised that the sale of anything (i.e. food, beverages, articles of clothing, etc.) on FirstEnergy's Site by the Contractor's or Subcontractor's personnel is strictly prohibited.

(G)   Arrival and Departure of Contractor's Tools, Equipment, and Materials .

(1)   Mobilization :

The Contractor shall provide the necessary resources to receive all material or equipment the Contractor or Subcontractors have shipped to FirstEnergy’s Site.

The Contractor shall be responsible for providing FirstEnergy's Designated Representative with the detailed packing lists of all tools, equipment, and materials the Contractor is bringing onto the jobsite. The list(s) shall have been provided to FirstEnergy’s Designated Representative prior to the time the shipment of such tools, equipment, and materials arrive at the site. Contractor shall, where known, identify the specific Subproject associated therewith and itemize such tools, equipment, and/or materials on separate forms.

(2)   Demobilization

The Contractor shall provide to FirstEnergy proper verification of ownership of all tools, equipment, and materials being removed from the jobsite at anytime.

The Contractor shall prepare and submit new forms (not marked up original forms used to bring the tools, equipment, and materials onto the jobsite) itemizing the tools, equipment, and materials leaving the jobsite for each individual shipment.

The forms shall be signed by the Contractor's Project Manager or his designee signifying that everything listed on the form(s) as being removed from the jobsite is the property of the Contractor.

The Contractor shall prepare sufficient copies of the forms to provide at minimum one copy for FirstEnergy's Designated Representative and one copy to be left with the security guard when leaving the jobsite.

The Contractor shall be responsible for providing at least a minimum 24 hour notification of the tools, equipment, and materials that are being readied for shipment off the jobsite.

The Contractor shall, prior to beginning to pack and load tools, equipment, and materials for shipment off the jobsite, contact FirstEnergy's Designated Representative to determine if FirstEnergy desires to be present to monitor the packing and loading process. Should the Contractor fail to notify FirstEnergy's Designated Representative prior to packing and loading any shipment, thus resulting in FirstEnergy's inability to verify the tools, equipment, and materials being shipped, all costs to redo the entire loading process from the beginning will be to the Contractor's account.

FirstEnergy retains the sole option to perform a total or partial ownership verification audit of all Contractors' shipments leaving the jobsite.

(H)   Radio Equipment . The Contractor shall not use any two-way radios or radio controlled equipment in the performance of work covered in this Agreement unless:

(1)   The Contractor shall notify FirstEnergy, in writing, listing all such frequencies proposed, their effective radiated power (ERP) and dBm, and, in the situation of radio controlled equipment, the receiver sensitivity, selectivity and coding.

(2)   FirstEnergy has received a copy of the current FCC authorization/license document covering the radio frequencies for which the Contractor has been granted by the FCC an authorization/license. The Contractor shall also notify FirstEnergy as to the location of the original document, who in the Contractor’s organization is responsible for its renewal and equipment maintenance and whereon the jobsite the document or copy thereof will be posted.

(A)   Contractor shall keep such full and detailed Project records including books, construction logs, records, daily reports, accounts, payroll records and other pertinent documents as may be necessary for proper financial management under this Agreement and as required under Applicable Law. Contractor shall maintain all such books and records in accordance with applicable generally accepted accounting principles. Contractor shall also retain all non-identical copies of all records and documents (including records and documents in electronic form) as are required to be retained under the NSR Consent Decree. The Parties shall determine a records retention protocol during the Development Phase. Contractor shall grant FirstEnergy such access to such records as is required for FirstEnergy to comply with the NSR Consent Decree.

(B)   With respect to each Subproject, upon reasonable notice during the [******] year period following Final Completion, FirstEnergy or its designee shall have the right to audit or to have audited the Project books and records of Contractor which relate to any work under this Agreement. When requested by FirstEnergy, Contractor shall provide the auditors with reasonable access to all personnel relevant to the audit, property, and records, and Contractor’s personnel shall cooperate with the auditors to effectuate the audit or audits hereunder. The auditors shall have the right to copy any and all documentation relating to performance of cost reimbursable work under this Agreement. Contractor shall pay for all reasonable internal costs (except personnel assigned to any Subproject) incurred by it in assisting FirstEnergy with one yearly audit performed pursuant to this Section 3.7 . For audits performed more frequently than yearly during the foregoing period, FirstEnergy shall pay for such Contractor reasonable internal costs, except in the event that such audits discover any errors in Contractor’s billing during such period. Contractor shall include audit provisions identical to this Section 3.7 in all Subcontracts. FirstEnergy shall have no right to examine, audit, or evaluate the basis underlying any hourly rates of Contractor professional labor or other fixed elements of compensation agreed to in the rate sheets included in Exhibit 5.1 .

(A)   Use of Hazardous Substances by Contractor . Contractor, any Subcontractor or its or their personnel, agents or representatives may only bring onto, use, store or locate on the Site such Hazardous Substances as are necessary for the performance of the Project. If such Hazardous Substances are brought onto, used, stored or located on the Site by Contractor or any Subcontractor or its or their personnel, agents or representatives, Contractor shall exercise or cause to be exercised the utmost care and skill and shall carry on its activities under the supervision of properly qualified personnel in accordance with Applicable Law. Before Final Completion of each Subproject, Contractor shall (i) remove all such Hazardous Substances previously brought onto, stored, used or located on the Site by Contractor or the Subcontractors in connection with the delivery, installation, commissioning, characterization or testing of such work (unless the same have been permanently incorporated into the Project in accordance with Applicable Law); and (ii) certify that removal in writing to FirstEnergy.

(B)   Assumption of Risk . Contractor shall retain and assume the risk of all Hazardous Substances brought onto, used, stored or located on the Site and under the control of Contractor or a Subcontractor or its or their personnel, agents or representatives, and shall be responsible, at its sole cost, for the proper handling, collection, storage, removal, use, clean-up, transportation and disposal of such Hazardous Substances. 

(C)   Notice of Presence . Contractor shall provide FirstEnergy with (i) written notice of the existence of any Hazardous Substances which Contractor or the Subcontractors or its or their personnel, agents or representatives bring onto the Site; and (ii) appropriate instructions for shipping, handling, exposure to and disposal of such Hazardous Substances, as required by Applicable Law. 

(D)   Compliance with Applicable Law . Contractor or the Subcontractors or its or their personnel, agents or representatives shall not introduce or release or allow to be introduced or released from the Site or handle, collect, remove, transport or dispose of Hazardous Substances in violation of Applicable Law.

(E)   Other Environmental Compliance Requirements . Contractor and its Subcontractors shall comply with the requirements set forth in Exhibit 3.8(E)-1 (Asbestos Handling and Removal ), Exhibit 3.8(E)-2 (Inorganic Arsenic), and Exhibit 3.8(E)-3 (Lead Abatement Terms of Reimbursement) in connection with the Project. 

(F)   Pre-existing Hazardous Substances . Contractor shall not be responsible or liable for dealing with, handling or disposing of Hazardous Substances which are pre-existing at, under, above, on or adjacent to the Site. If, in the course of performance of the Project, the Contractor encounters on the Site any matter which it reasonably believes is a Hazardous Substance, the Contractor shall immediately suspend the work in the area affected and report the condition to FirstEnergy in writing. In any such event, the obligations and duties of the Parties hereto shall be as follows:

(1)   If it is determined that such condition involves a pre-existing Hazardous Substance, then any required, necessary or appropriate remedial actions shall be performed by FirstEnergy at its sole cost and expense;

(2)   If it is determined that such condition involves a Hazardous Substance introduced to the Project Site after the date of this Agreement by the Contractor, its Subcontractors or any Person for whom either may be liable, then any required, necessary or appropriate remedial actions shall be performed by the Contractor at its sole cost and expense; or

(3)   If it is determined that the condition does not involve a Hazardous Substance, the Contractor shall, promptly after receiving written notice from FirstEnergy authorizing the Contractor to recommence site activities in the subject area, resume the portion of the work that had been suspended.

(A)   Contractor Responsibility . Contractor shall be responsible for all quality assurance, quality control, testing and inspection activities related to the Project, including all Materials, whether such work is performed by Contractor or Subcontractors. During the Development Phase, Contractor shall submit to FirstEnergy for its review a project specific quality assurance, quality control, testing and inspection plan, but excluding tests and inspections relating to Performance Tests. FirstEnergy may review and comment on, without assuming liability for, such quality assurance, quality control, testing and inspection procedures, and Contractor shall make revisions in accordance with FirstEnergy’s comments. Contractor’s quality assurance plan shall provide for a quality assurance individual or individuals to be present at the Site to supervise the implementation of the quality assurance, quality control, testing and inspection plan, including all such quality assurance plan requirements as may be described in FirstEnergy’s Requirements. FirstEnergy shall be provided reasonable access during normal working hours to Contractor’s and the Subcontractors’ facilities for inspection of all testing activities related to the Project or any portion thereof and shall be given ten (10) Business Days notice prior to the commencement of any such testing to ensure that FirstEnergy is able to be present for all such tests. Records of all testing and inspection work by Contractor shall be kept complete and available to FirstEnergy during the performance of this Agreement and for such longer period as may be specified by Contractor’s standard recordkeeping practices.

(B)   FirstEnergy Rights .   If any work or component thereof at the Site has a Warranty Non-Conformance and cannot be repaired, Contractor shall dispose of same at no cost to FirstEnergy. If Contractor fails to dispose of such work or component on a timely basis, then FirstEnergy may dispose of such work or component in a reasonable manner and shall be entitled to obtain reimbursement for all reasonable expenses incurred by FirstEnergy in the disposition thereof.

(A)   Monthly Progress Reports . On or before the fifth Business Day of each month, Contractor shall submit to FirstEnergy, along with the Updated Critical Path Schedule, a monthly progress report in a form acceptable to FirstEnergy, which shall cover all activities up through the 23 ^rd day of the preceding month (the “Monthly Progress Report” ). Contractor shall provide FirstEnergy with the number of copies of such reports and shall arrange for the distribution thereof as FirstEnergy may reasonably request. 

(1)   The Monthly Progress Report shall include the following information:

(i)   an executive summary with a description of overall status and progress of the Project;

(ii)   a description, as compared with the Project Schedule and the Critical Path Schedule, of engineering status including actual percentage complete versus planned percentage, document status, significant activities accomplished the previous month and significant activities planned for the current month;

(iii)   a description, as compared with the Project Schedule and the Critical Path Schedule, of procurement activities including actual percentage complete versus planned percentage, manufacturing and delivery status, significant activities accomplished the previous month and significant activities planned for the current month;

(iv)   a description, as compared with the Project Schedule and the Critical Path Schedule, of construction activities including actual percentage complete versus planned percentage, progress summary, numbers of skilled, unskilled, and supervisory staff on Site compared to planned levels, significant activities accomplished the previous month and significant activities planned for the current month;

(v)   a description of critical items, including an evaluation of problem areas, and, to the extent applicable, of strategies to recovery any delays so as to comply with the Project Schedule and the Critical Path Schedule and the expected completion date for such delayed or problematic areas or activities;

(vi)   a description of all permitting and environmental issues;

(vii)   a description of all safety and security issues;

(viii)   a description of quality assurance, quality control, inspection and testing activities;

(ix)   progress photos, including a description of the photograph and the date taken; and

(x)   any other information reasonably requested by FirstEnergy, including any material information of which Contractor is aware that could reasonably be foreseen to adversely affect the performance of the Project.

(B)   Other Contractor Provided Information . Contractor shall provide FirstEnergy with such other information as reasonably requested by FirstEnergy, including the following:

(1)   Minutes for all status and other project meetings within five (5) Business Days following such meeting; and

(2)   Safety incident reports within three (3) Business Days of the occurrence of any such incident.

(3)   Progress reports at such other intervals as may be requested by FirstEnergy.

(C)   Review Meetings . Contractor shall conduct review meetings with FirstEnergy in person (or if approved by FirstEnergy, by telephone) within five (5) Business Days after the submission of each Monthly Progress Report and Updated Critical Path Schedule and at such other intervals as may be requested by FirstEnergy, at a mutually agreeable location and time to review the status of the Project.

(D)   Additional Reports . If any material problem, emergency, strike, injury, work stoppage or legal problem is anticipated, or any unanticipated event occurs, that might adversely affect Contractor’s ability to perform its obligations hereunder in a timely manner, in addition to other reports, notices and actions required hereunder, Contractor shall promptly prepare a written report detailing available information and steps being taken or taken to correct such problem or event and shall deliver such report to FirstEnergy as soon as reasonably practicable. FirstEnergy may at any time request such report with respect to any event that FirstEnergy reasonably regards as significant.

(A)   Invoices .

(1)   With respect to each Subproject, Contractor shall submit to FirstEnergy invoices for payments due as provided in Exhibit 5.1 . An invoice shall constitute a representation by Contractor, and Contractor shall provide to FirstEnergy and such other Persons as FirstEnergy may designate a certificate to the effect, that: (a) the Subproject is progressing in accordance with the Project Schedule and the Critical Path Schedule, or shall specify any reasons why such is not the case; (b) the quality of all work described in the invoice is in accordance with the terms of this Agreement, or shall specify any reasons why such is not the case; (c) Contractor is entitled to payment of the amount invoiced; (d) the work (or any portion thereof) described in the statement accompanying the invoice and all previous invoices are free and clear of all liens, security interests and encumbrances; and (e) all Subcontractors have been paid the monies due and payable to them for work performed (except for such amounts as may be disputed in good faith by Contractor).

(2)   Invoices shall be submitted to FirstEnergy’s Designated Representative for approval and payment. The elements of all amounts invoiced shall be shown separately, by applicable line items, and shall be classified or further broken down as FirstEnergy may require for accounting and payment purposes. Any disputed invoice or portion thereof need not be paid, but in such case, FirstEnergy shall promptly notify Contractor of any rejected invoice or portion thereof with reasons for such rejection. Specific details of the invoicing process are as follows:

(i)   By the [******] of the month in advance of the cost being incurred, Contractor will electronically submit two payment requests to FirstEnergy. The first payment request will be equal to [******}% of the estimated sum of all reimbursable costs that Contractor anticipates billing to FirstEnergy for the month the cost will be incurred, adjusted by an amount equal to the difference (deficiency or excess) between the payments received for the month preceding the date of invoice and the actual costs incurred for such preceding month; adding the amount of the deficiency or subtracting the amount of the excess. The second payment request will be equal to [******]% of the estimated sum of all reimbursable costs that Contractor anticipates billing to FirstEnergy for the month the costs are incurred.

(ii)   FirstEnergy will electronically transfer funds on a date that will allow Contractor to receive payment for the first payment request by the [******] day of the month in advance of the cost being incurred and the second payment request by the [******] day of the month the cost will be incurred.

(iii)   As soon as practical after the close of each monthly accounting period, Contractor will electronically submit to FirstEnergy a Statement of Reimbursable Cost for the accounting period just ended. Contractor will make its best efforts to issue this statement on or prior to the [******] day of the following month. The statement will be supported by a schedule of charges, together with any supporting records, invoice copies, payroll abstracts and/or other documentation that FirstEnergy reasonably requires. Along with each statement, Contractor will submit a reconciliation of monthly payments and reimbursable costs incurred. The reconciliation will include monthly payments received and cost incurred for the latest period and from inception-to-date.

(iv)   FirstEnergy will not withhold payment of any undisputed amount which is due Contractor beyond the date payment is due under the Contract.

(v)   Interest will be accrued and payable to Contractor on undisputed amounts that are due and remain unpaid with such accrual to begin [******] days after the payment due date. Interest will be due at the rate of the prime rate as specified under the caption “Money Rates” in the Wall Street Journal (New York Edition dated the date such interest begins to accrue) plus [******]%. The obligation to pay interest will be waived during the first [******] billing cycles under the first Subproject. !

(vi)   Fee shall be calculated in accordance with Exhibit 5.1 and Fee adjustments defined in Exhibit 5.1(A) .

(vii)   Payment of Fees for Engineering/Graphics Labor and Other Professional Labor will be paid using the same methodology used for payment of costs as provided in Sections 5.2(A)(2)(i) through (vi) . Payment of Fees for all other amounts will be in accordance with the percentage of Construction Progress, as defined in the “Project Status” section of the Fee adjustment sheet provided in Exhibit 5.1-1(A) .

(viii)   Contractor will certify that all amounts due and payable to all Subcontractors prior to the end of the period covered by a Monthly Progress Report, unless reasonably disputed, have been paid in accordance with the terms of the Subcontracts.

(3)   Invoice charges shall be allocated to appropriate accounts, a list of which will be furnished by FirstEnergy. For work performed by the Contractor under Article 8 of this Agreement, the charges will be listed by FirstEnergy's Change Order documentation number (Field Change Request (FCR) Numbers, Maintenance Work Order (MWO) Numbers, Extra Work Request (EWR) Numbers, Contracted Services Change Order (CSCO) Numbers, etc.) and listed by current month and shall be supported by daily time sheets, accurately describing the work being performed, signed by FirstEnergy's Designated Representative showing the craft, first and last names and a unique personal identification number of each worker and each piece of equipment employed on the Project. All material charges shall be supported by the original invoices or other evidence as required by FirstEnergy to substantiate the charges submitted.

(B)   Payment . Each invoice shall, after approval by FirstEnergy, be processed for payment for the amount of each approved invoice less any monies withheld under Section 5.4 below. Payments by FirstEnergy shall not be deemed evidence of acceptance by FirstEnergy of the services or goods called for hereunder.

(C)   Interim Lien and Claim Waivers . Each invoice prior to Final Completion of each Subproject shall be accompanied by a fully executed Contractor’s Interim Lien and Claim Waiver in the form set forth in Exhibit 5.2(C) for all work performed through the date for which payment is requested, and fully executed Interim Lien and Claim Waivers from each Subcontractor (other than with respect to Subcontracts with a total payment obligation of less than $500,000) in the form set forth in Exhibit 5.2(C) for all work performed through the date for which payment is requested.

(A)   Direct Pay Permit . A Direct Payment Permit authorizing the purchase of tangible personal property without payment of the tax at the time of purchase has been issued to FirstEnergy Generation Corp. The Permit Number for FirstEnergy Generation Corp. is 98-002723. FirstEnergy agrees to maintain adequate records of all purchases and pay tax on the taxable items directly to the Treasurer of the State of Ohio. The Direct Payment Permit does not apply to construction contracts under which the contractor is considered to be the consumer and liable for the tax on materials incorporated into a structure or improvement as provided in Section 5739.01 (B) Ohio Revised Code.

(B)   Tax Exempt Project - FirstEnergy states that the overall Project is defined by Ohio Revised Code § 5709.20 and is anticipated to be exempt from Ohio Sales and Use Taxes under Ohio Revised Code § 5709.25. All parties to this contract will work together to minimize FirstEnergy’s sale and use tax liability by taking the following actions:

(1)   Contractor - The Contractor will register for Ohio sales tax purposes as a vendor, thereby gaining the ability to issue Ohio “Resale Exemption Certificates” when purchasing items to be incorporated into the “facility”, and sold to FirstEnergy.

(2)   Contractor retains the sales and use tax liability to report or pay Ohio sales and use taxes on its purchase, lease or rental of office supplies, construction tools and equipment used in performing the work. Taxes required to be paid related to the foregoing shall be reimbursed as a reimbursable cost pursuant to Section 5.1 .

(3)   FirstEnergy Generation Corp. either has or will apply for an Ohio “Pollution Control Facilities” exemption certificate as provided by Ohio Revised Code § 5709.25.

(4)   In the event that FirstEnergy is unable to obtain the "pollution control facility" exemption, or in the event that Contractor is prohibited by Ohio governmental authorities from taking the actions provided in subsection (i) above, FirstEnergy acknowledges that Ohio sales and use taxes as it relates to the work performed under this Agreement are reimbursable as a reimbursable cost pursuant to Section 5.1(A) .

FirstEnergy Corp.

76 S. Main Street

Akron, OH 44308

Phone Number: (330) 384-5256

(A)   Definition of Mechanical Completion . “Mechanical Completion” for each Subproject (or any AQC Unit, as applicable) shall be deemed to have occurred only upon the completion of the procurement, fabrication, installation, and inspection of all necessary components and systems of the Subproject (or AQC Unit, as applicable) (including all non-destructive examinations and static integrity tests, such as hydrostatic and pneumatic pressure or tightness tests, radiography tests, and other pre-operational mechanical and electrical tests, calibrations, clean-outs and flushes) to the extent necessary to permit Performance Testing. Prior to Mechanical Completion, Contractor shall perform and provide FirstEnergy with documentation of all checks and tests required to ensure that the Subproject has been correctly installed and is capable of being operated safely and reliably within the requirements of the Agreement and without damage or injury to the Project, the Site, or any other property or person.

(B)   Notice of Mechanical Completion . Contractor shall provide written notice to FirstEnergy at such time as the Subproject (or AQC Unit, as applicable) has achieved Mechanical Completion. Within fifteen Business Days of such notice, FirstEnergy shall respond to Contractor in writing that the Subproject (or AQC Unit, as applicable) has achieved Mechanical Completion on the date stated in Contractor’s notice or provide Contractor with reasons why FirstEnergy disputes that Mechanical Completion was achieved on such date.

(A)   Definition of Final Completion and Final Document Delivery .

“Final Completion” for each Subproject (or any AQC Unit, as applicable) shall be deemed to have occurred only upon completion of the following requirements for the Subproject (or the AQC Unit, as applicable): (i) Mechanical Completion has been achieved; (ii) Performance Tests have been successfully completed, or at the election of Contractor (but provided in the case of the Wrap Arrangement, solely in the event that the Performance Tests have resulted in the removal of at least [******]% of SO2). Contractor has paid FirstEnergy any and all undisputed Performance Liquidated Damages owed by Contractor and its Subcontractors; (iii) Contractor has paid FirstEnergy any and all undisputed Schedule Liquidated Damages owed; (iv)  the Reliability Standard has been achieved; (v) Contractor has delivered to FirstEnergy a Final Completion Certificate, which FirstEnergy has approved (provided, for purposes of clarity, that the date of delivery of a conforming and correct Final Completion Certificate, and not the date of approval thereof by FirstEnergy, shall be deemed the date on which this requirement has been completed); (vi) Contractor has obtained all Permits required in connection with the performance thereof; (vii) Contractor has removed all Hazardous Substances for which it is responsible under Section 3.8(A) and provided to FirstEnergy written certification thereof, as provided in Section 3.8(A) ; (viii) Contractor has removed all supplies, waste, materials, rubbish, and temporary facilities from the Site (except to the extent the Parties mutually agree the same are necessary to performing additional AQC Units or Subprojects); (ix) the Subproject (or AQC Unit, as applicable) has been fully completed as required under the Agreement, except for items of incomplete work which do not impair the operation thereof. 

“Final Document Delivery” for each Subproject (or any AQC Unit, as applicable) shall be deemed to have occurred only upon completion of the following requirements: (a) Contractor has delivered to FirstEnergy a fully executed Contractor’s Final Lien and Claim Waiver in the form of Exhibit 6.3(A) and fully executed Final Lien and Claim Waivers from all Subcontractors in the form of Exhibit 6.3(A) ; (b) Contractor has delivered to FirstEnergy all documentation required to be delivered under the Agreement, including Drawings and FirstEnergy’s Confidential Information ; (c) Contractor has assigned or provided FirstEnergy with all warranties to the extent Contractor is obligated to do so pursuant to this Agreement.

(B)   Guaranteed Final Completion Dates . Contractor shall achieve Final Completion and Final Document Delivery in accordance with the dates set forth in the Project Schedule to be developed and delivered pursuant to Section 6.4 ( “Guaranteed Final Completion Dates” ). The parties anticipate that the Project Schedule for the Subproject associated with Generating Units 1 through 4 of the Sammis Plant will designate a separate Guaranteed Final Completion Date for each AQC Unit within that Subproject. At the election of FirstEnergy, the Project Schedule for the Subproject associated with Sammis Plant Generating Units 5, 6, and 7 will designate either a single Guaranteed Final Completion Date for all AQC Units within that Subproject, or separate Guaranteed Final Completion Dates for each AQC Unit within that Subproject (with an adequate time allowed between the Scheduled Mechanical Completion Dates established for Generating Units 5, 6 and 7).

(C)   Notice of Final Completion . When Contractor believes it has achieved Final Completion, Contractor shall deliver to FirstEnergy a written notice and certification thereof ( “Final Completion Certificate,” which shall be in the form of Exhibit 6.3(C)) , certifying to FirstEnergy that all of the requirements for Final Completion have occurred. The Final Completion Certificate shall be accompanied by all other supporting documentation as may be required to establish that the requirements for Final Completion have been met.

(D)   FirstEnergy Acceptance of Final Completion . FirstEnergy shall notify Contractor whether it accepts or rejects the Final Completion Certificate within thirty (30) days following receipt of such notice. If FirstEnergy agrees that Final Completion has occurred, FirstEnergy shall deliver to Contractor a written acceptance of Final Completion. If FirstEnergy does not agree that Final Completion has occurred, then FirstEnergy shall state the basis for its rejection in reasonable detail in the written notice provided to Contractor. In the event that Final Completion has not been achieved, Contractor shall promptly take such action or perform such additional work as will achieve Final Completion and shall issue to FirstEnergy another Final Completion Certificate. Such procedure shall be repeated as necessary until Final Completion is achieved.

(A)   Project Schedule; Critical Path Schedule . With respect to each Subproject, during the Development Phase, Contractor shall prepare and submit to FirstEnergy for its review a detailed Project Schedule, and critical path method schedules for the Subprojects and for the Project as a whole, which shall be submitted in native electronic and paper form ( “Critical Path Schedule” ). The Project Schedule and Critical Path Schedule shall govern Contractor’s performance of the Subproject. The Contractor shall use its best efforts to cause the Project Schedule and Critical Path Schedule to be consistent with the timetables, goals and objectives of FirstEnergy, including achievement of the compliance dates established in the NSR Consent Decree. The Critical Path Schedule shall represent Contractor’s best judgment as to how it shall complete the Subproject in compliance with the Project Schedule and the Guaranteed Final Completion Date. The Critical Path Schedule shall be a detailed graphic representation of all significant aspects of the Subproject, showing Contractor’s plans for performance of the Subproject. Without limiting the generality of the foregoing, the Critical Path Schedule shall: 

(1)   include separate activities for each portion of the Subproject performed by Contractor, its Subcontractors, or FE Vendors, along with non-physical activities related to the Subproject, such as the submittal and approval of shop drawings, product data, samples, Drawings and Specifications, procurement of Materials, inspection and testing of the Subproject, and obtaining Permits;

(2)   be detailed such that no activity is longer than fifteen (15) days; 

(3)   show the duration, early/late start dates, early/late finish dates and available float for each activity. Float time shall not belong to either Party, and shall be allocated as needed during the progress of the Subproject;

(4)   show the percentage completion as of the date thereof;

(5)   identify the Person responsible for the activity;

(6)   for cost-reimbursable work, show the projected manpower to be used per activity, whether provided by Contractor or its Subcontractors, showing the number of personnel, the positions and titles of such personnel and a general description of the work being performed;

(7)   show the Scheduled Mechanical Completion Date, the Guaranteed Final Completion Date and all other milestones listed in the Project Schedule;

(8)   include allocations of resources among the scheduled activities; and 

(9)   reflect logical relationships between activities, reasonable durations and adequate float time to account for existing conditions and foreseeable complications.

The Critical Path Schedule shall be the schedule which Contractor shall use in planning, organizing, directing, coordinating, performing and executing the Subproject (including all activities of Subcontractors and FE Vendors) and shall be the basis for evaluating progress of the Subproject.

(B)   FirstEnergy Review of Schedule . FirstEnergy may review the Critical Path Schedule for general conformance with this Agreement. If FirstEnergy determines at any time that the Critical Path Schedule does not conform with this Agreement or the Project Schedule in any respect, Contractor shall promptly revise and resubmit the Critical Path Schedule to FirstEnergy. FirstEnergy’s review of the Critical Path Schedule shall not relieve Contractor of any obligations for the performance of the Project, change any Project Schedule milestone or any Guaranteed Final Completion Date, or be construed to establish the reasonableness of the Critical Path Schedule. FirstEnergy may reasonably rely upon the Critical Path Schedule in FirstEnergy’s dealings with other contractors operating at the Site or any other Person.

(C)   Updated Critical Path Schedule . Contractor shall update the Critical Path Schedule monthly and at such other intervals as may be requested by FirstEnergy by showing the actual progress of the Subproject; however, Contractor may not modify the Critical Path Schedule, including any of the Guaranteed Final Completion Dates or any Project Schedule milestone, without obtaining FirstEnergy’s prior written approval. Any modifications to any of the Guaranteed Final Completion Dates or Project Schedule milestones shall be only by Change Order. Contractor shall provide FirstEnergy monthly (weekly during the Generating Unit outage) with a current updated Critical Path Schedule in both hard copy and electronic form ( “Updated Critical Path Schedule” ) reflecting the actual progress of work against the Critical Path Schedule and Project Schedule. The Updated Critical Path Schedule shall be in the same detail and form as required by the Critical Path Schedule. 

(A)   FirstEnergy shall submit to Contractor a written proposed Change Order for each requested change. Contractor must respond to FirstEnergy within ten (10) Business Days with a written statement setting forth Contractor’s estimate as to the effect, if any, which such proposed Change Order would have on the Target Construction Cost, the Project Schedule, any Guaranteed Final Completion Dates, the Performance Guarantee, the Warranties, or any other obligation or potential liability of either Party hereunder (collectively, the “Changed Criteria” ). To the extent reasonably practicable, the written statement shall include all information required by Section 8.5 .

(B)   If the Parties agree on such effect of the proposed Change Order (or modify such Change Order so that the Parties agree on such effect of all provisions as modified), the Parties shall execute such Change Order, and such Change Order shall become binding on the Parties.

(C)   If the Parties cannot agree on such effect of the proposed Change Order within fifteen (15) Business Days of Contractor’s receipt of FirstEnergy’s proposed Change Order, or if FirstEnergy desires that the changed work set forth in the proposed Change Order commence immediately without the requirement of a written statement by Contractor, FirstEnergy may, by issuance of a unilateral Change Order, require Contractor to commence and perform such changed work (which Contractor shall be compensated for in accordance with Section 5.1 ), with the effect of such unilateral Change Order on the Changed Criteria to be determined as soon as possible. Pending resolution of any dispute, Contractor shall perform the work as specified in such unilateral Change Order and FirstEnergy shall continue to pay Contractor in accordance with the terms of this Agreement and any previous agreed Change Orders. When FirstEnergy and Contractor agree on the effect of such unilateral Change Order on all of the Changed Criteria, the Parties shall record such agreement by execution of a Change Order, which shall supersede the unilateral Change Order previously issued and relating to such changed work. Contractor shall utilize all reasonable efforts to commence the performance of the changed work or other obligations required in the unilateral Change Order within three (3) Business Days of receipt of such unilateral Change Order.

(A)   Contractor shall have the right to a Change Order in the event of any of the following occurrences: 

(1)   acts or omissions of any Governmental Authority, including changes in Applicable Law occurring after the Effective Date of this Agreement and changes in the terms of Permits or issuance of new Permits occurring after the Effective Date of this Agreement, which affect Contractor’s direct cost to perform the work under this Agreement, delay the time of performance of such work, or materially affects Contractor’s ability to achieve any Performance Guarantee offered by Contractor hereunder, other than with respect to United States import duties, acts of customs authorities, or acts by a Governmental Authority requiring compliance with Applicable Law existing prior to the Effective Date of this Agreement;

(2)   acts or omissions of FirstEnergy or its agents which constitute a breach of this Agreement by FirstEnergy and which affect Contractor’s direct cost to perform the work under this Agreement, and, with respect to delays, interruptions, disruptions, interferences or hindrances caused by FirstEnergy or such Persons, to the extent allowed under Section 9.2 ;

(3)   inaccuracy in FirstEnergy Reliable Information which materially affects Contractor’s direct cost to perform the work under the Subproject, materially delays the time of performance of the Subproject, or materially affects Contractor’s ability to achieve any Performance Guarantee offered by Contractor hereunder;

(4)   discovery of Hazardous Substances for which Contractor has not assumed and retained the risk under Section 3.8(B) , which affects Contractor’s direct cost to perform the work under this Agreement or delays the time of performance of such work; provided, however, that delays or other impacts to the Project caused by the subcontractor retained by FirstEnergy to perform lead abatement activities shall not be cause for a Change Order;

(5)   a Force Majeure Event; or

(6)   acts or omissions of an FE Vendor which materially and adversely affect Contractor’s direct cost of performance and, with respect to delays, interruptions, disruptions, interferences or hindrances caused by such FE Vendor, to the extent allowed under Section 9.2 .

(B)   Should Contractor desire to request a Change Order under Section 8.2 , Contractor shall, pursuant to Section 8.5 , notify FirstEnergy in writing and issue to FirstEnergy a request for a proposed Change Order in the form attached hereto as Exhibit 8.2 , a reasonably detailed explanation of the proposed change and Contractor’s reasons for proposing the change, all documentation necessary to verify the effects of the change on the Changed Criteria, and all other information required by Section 8.5 .

(C)   If FirstEnergy agrees that a Change Order is necessary and agrees with Contractor’s statement of such effect of the proposed Change Order on the Changed Criteria, then FirstEnergy shall issue such Change Order, which shall be in the form of Exhibit 8.2 attached hereto, and such Change Order shall become binding on the Parties upon execution by the Parties of such Change Order. 

(D)   If the Parties agree that Contractor is entitled to a Change Order but cannot agree on such effect of the proposed Change Order on the Changed Criteria within ten (10) Business Days of FirstEnergy’s receipt of Contractor’s written notice and proposed Change Order and all other required information, or if FirstEnergy desires that the changed work set forth in the proposed Change Order commence immediately, FirstEnergy may, by issuance of an unilateral Change Order in the form attached hereto as Exhibit 8.2 , require Contractor to commence and perform such changed work (which Contractor shall be compensated for in accordance with Section 5.1 ), with the effect of such unilateral Change Order on the Changed Criteria (or if the Parties agree on the effect of such Change Order for some but not all of the Changed Criteria, the impact of each of the components of the Changed Criteria on which the Parties disagree) to be determined as soon as possible. Pending resolution of the dispute, Contractor shall perform the work as specified in such unilateral Change Order and FirstEnergy shall continue to pay Contractor in accordance with the terms of this Agreement and any previous agreed Change Orders. When FirstEnergy and Contractor agree on the effect of such unilateral Change Order on all of the Changed Criteria, such agreement shall be recorded by execution by the Parties of a Change Order in the form attached hereto as Exhibit 8.2 , which shall supercede the unilateral Change Order previously issued and relating to such changed work.

(E)   If the Parties cannot agree upon whether Contractor is entitled to a Change Order, then pending resolution of the dispute, Contractor shall continue to perform the work required under the Agreement, and FirstEnergy shall continue to pay Contractor in accordance with the terms of this Agreement and any previous agreed Change Orders.

(F)   In the event that Contractor desires a change that it believes would be advantageous to the Subproject for reasons other than those set forth in Section 8.2(A) , it shall notify FirstEnergy of the desired change and shall furnish to FirstEnergy, along with such notice, a request for a Change Order in the form attached hereto as Exhibit 8.2 , including a reasonably detailed explanation of the proposed change and Contractor’s reasons for proposing the change, supported by all documentation necessary to verify the effects of the change on the Changed Criteria, including the information required under Section 8.5 . Within ten (10) Business Days of receipt of Contractor’s notice and Change Order request with the required supporting documentation, FirstEnergy shall have the right in its sole and absolute discretion to reject Contractor’s Change Order request and shall notify Contractor of its decision. If FirstEnergy does not reply within such ten (10) Business Day period, FirstEnergy shall be deemed to have rejected the proposed change, and Contractor shall not be entitled to the corresponding Change Order.

(A)   notify the FirstEnergy Designated Representative in writing of the existence of such circumstance within fourteen (14) days (or such other period expressly provided under the Agreement) of the date that Contractor knew or reasonably should have known of the first occurrence or beginning of such circumstance, provided that Contractor shall use reasonable efforts to give such notice prior to the expiration of such fourteen (14) day period should any action or inaction by FirstEnergy or Contractor be required or necessary in relation to such circumstance to prevent or mitigate any damages to either Party and in either case, prior to commencement of work for which a Change Order may be requested (except in the event that such work is required to be immediately undertaken to avoid imminent loss or damage to property or persons). In such notice, Contractor shall state in detail all known and presumed facts upon which its claim is based, including the character, duration and extent of the claimed circumstance, the date Contractor first knew of the circumstance, any activities impacted by the circumstance, the cost and time consequences of the circumstance and any other details or information that are expressly required under this Agreement. Contractor shall only be required to comply with the notice requirements of this Section 8.5 once for continuing circumstances, provided the notice expressly states that the circumstance is continuing and includes Contractor’s best estimate of the time and cost consequences of the claimed circumstance; and

(B)   submit to the FirstEnergy Designated Representative a request for a proposed Change Order as soon as reasonably practicable after giving FirstEnergy written notice but in no event later than ten (10) Business Days after the completion of each such circumstance, together with a written statement (a) detailing why Contractor believes that a Change Order should be issued, plus all documentation reasonably requested by or necessary for FirstEnergy to determine the factors necessitating the possibility of a Change Order and all other information and details expressly required under this Agreement (including the information required by Exhibit 8.2 , schedules, detailed estimates and cost records, daily time sheets); and (b) setting forth the effect, if any, which such proposed Change Order would have for the work on any of the Changed Criteria. 

(A)   Duties of the Affected Party . Within three (3) Business Days after becoming aware of the occurrence of a Force Majeure Event, the affected Party shall (i) provide written notice to the other Party containing full particulars of such Force Majeure Event (including the anticipated length of time that the delay may persist, the cause or causes of the delay, all measures taken or to be taken by the affected Party to prevent or minimize the delay, the schedule by which the affected Party proposes to implement those measures, and the affected Party’s rationale for attributing a delay to a Force Majeure Event), including the requirements set forth in Section 8.5 , together with the obligations affected thereby, and (ii) use reasonable commercial efforts to mitigate the effect of such delay or failure and to remedy the Force Majeure Event. The affected Party shall resume performance of its obligations affected by the Force Majeure Event as soon as practicable after the conclusion of the Force Majeure Event, and shall give prompt written notice to the other Party of all significant facts and events concerning the affected Party’s efforts to perform and of the conclusion of the Force Majeure Event. Force Majeure Events shall not excuse any delay or failure to make payments when due and Contractor shall continue to be paid under this Agreement notwithstanding any Force Majeure Event. For purposes of this Section 9.1(A) , Contractor shall be deemed to know of any circumstance of which Contractor or its Subcontractors knew or by the exercise of due diligence should have known.

(B)   Effect of Force Majeure Event . Except as otherwise provided in Section 9.1 , the affected Party’s obligations under this Agreement shall be suspended insofar as performance of such obligations is rendered impossible by a Force Majeure Event. Any delay or failure by the affected Party in the performance of any of its obligations under this Agreement on account of a Force Majeure Event shall not constitute a default under this Agreement during the period the Force Majeure Event is in effect to the extent such delay or failure is caused by the Force Majeure Event; provided that the affected Party shall have complied with its obligations under Section 9.1(A) as an express condition precedent; and provided that delay of Contractor in achieving Final Completion and Final Document Delivery with respect to any Subproject shall only be excused, and the Guaranteed Final Completion Date shall be extended, by one day for each day of delay during which (i) such Force Majeure Event made it impossible for Contractor to carry out all activities relating to such Subproject which are necessary to the fulfillment of Final Completion of such Subproject by the Guaranteed Final Completion Date and caused a delay to the critical path of the Critical Path Schedule; (ii) Contractor could not practicably recover by the use of due diligence and all reasonable commercial efforts, including the expenditure of moneys, overtime work, and work over weekends and holidays; and (iii) such Force Majeure Event was the direct and proximate cause of Contractor’s failure to meet such Guaranteed Final Completion Date. If Contractor seeks an extension of time to a Guaranteed Final Completion Date, it shall comply with Sections 8.2(B) and 8.5(B) .

(A)   Within five (5) calendar days of such determination, Contractor shall prepare the Recovery Schedule and submit it to FirstEnergy for its review and approval. The Recovery Schedule shall represent Contractor’s best judgment as to how the Subproject may regain compliance with the Critical Path Schedule. Contractor shall perform the Subproject in accordance with the Recovery Schedule.

(B)   In preparing and executing the Recovery Schedule, Contractor shall take all steps necessary to regain compliance with the Critical Path Schedule, including additional shifts, additional manpower, overtime, providing additional equipment, and resequencing of activities.

(C)   Contractor shall have the right to a Change Order under Section 8.2 for implementation of a Recovery Schedule which is required as a result of Force Majeure Event or a FirstEnergy-Caused Delay as described in Section 9.2 .

(A)   The Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The Contractor shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such action shall include employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Contractor shall post in conspicuous places, available to employees and applicants for employment, notices to be provided by the U.S. Department of Labor setting forth the provisions of this nondiscrimination clause.

(B)   The Contractor shall state, in all solicitations or advertisements for employees placed by or on its behalf, that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin.

(C)   The Contractor shall send to each labor union or representative of workers with which it has a collective bargaining agreement, contract or understanding, a notice to be provided by the U.S. Department of Labor, advising the labor union or workers’ representative of the Contractor’s commitments under the following provisions, as amended from time to time:

(1)   Section 202 of Executive Order 11246 (Equal Opportunity);

(2)   Executive Order 11701 (Employment of Veterans);

(3)   Executive Order 11758 (Employment of the Handicapped);

(4)   Executive Order 11141 (Employment Discrimination Because of Age); and

(5)   Executive Order 11625 and Public Law 95-507 (Utilization of Disadvantaged Business Enterprises),

and shall post copies thereof in conspicuous places available to employees and applicants for employment.

(A)   52.203-6 Restrictions on Subcontractor Sales to the Government (required in all subcontracts under this Agreement which exceed $100,000);

(B)   52.203-7 Anti-Kickback Procedures (required in all subcontracts under this Agreement which exceed $100,000, other than those for commercial items);

(C)   52.204-2 Security Requirements (required in all subcontracts under this Agreement which involve access to classified information);

(D)   52.219-8 Utilization of Small Business Concerns (required in all non-personal subcontracts with a value greater than $100,000);

(E)   52.219-9 Small Business Subcontracting Plan (Contractors receiving subcontracts exceeding $500,000, other than small business concerns, are required to adopt a subcontracting plan that complies with the requirements of this clause);

(F)   52.222-4 Contract Work Hours and Safety Standards Act—Overtime Compensation (required in all subcontracts exceeding $100,000, unless otherwise exempted);

(G)   52.222-26 Equal Opportunity (required in all contracts/subcontracts; however, if the cumulative value of nonexempt Federal contracts/subcontracts is $10,000 or less in any 12 month period, including the 12 months preceding the award, the contractor/subcontractor is exempt from the clause requirements);

(H)   52.222-35 Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era (required in all contracts/subcontracts with a value of $10,000 or more);

(I)   52.222-36 Affirmative Action for Workers with Disabilities (required in all contracts/subcontracts with a value of $10,000 or more);

(J)   52.222-37 Employment Reports on Disabled Veterans and Veterans of the Vietnam Era (required in all contracts/subcontracts with a value of $10,000 or more);

(K)   52.223-14 Toxic Chemical Release Reporting (Except for acquisitions of commercial items, and unless otherwise exempt, this clause is required for competitive subcontracts expected to exceed $100,000, including all options, and in any resultant subcontract exceeding $100,000, including all options);

(L)   52.225-13 Restrictions on Certain Foreign Purchases (required in all subcontracts for contracts with a value exceeding $2,500, unless otherwise exempted);

(M)   52.222-11 Subcontracts (Labor Standards) (required in all service contracts in excess of $2,000 for construction within the United States) This provision requires that the following clauses be inserted into contracts meeting the criteria: Davis-Bacon Act, Contract Work Hours and Safety Standards Act—Overtime Compensation, Apprentices and Trainees, Payrolls and Basic Records, Compliance with Copeland Act Requirements, Withholding of Funds, Subcontracts (Labor Standards), Contract Termination—Debarment, Disputes Concerning Labor Standards, Compliance with Davis-Bacon and Related Act Regulations, and Certification of Eligibility.

(N)   52.222-41 Service Contract Act of 1965, as Amended (required in all service contracts subject to the Act (i) which exceed $2,500; or (ii) which are for an indefinite dollar amount and the contracting officer does not know in advance that the contract amount will be $2,500 or less).

(O)   Contractor shall comply with the Department of Commerce Export Administration Regulations (“EAR”) in 15 CFR Chapter VII, subchapter C, including 15 CFR Section 734.2 which prohibits the export or release of controlled technology and/or software to foreign nationals within the United States who are not lawfully admitted to the United States for permanent residence. Contractor shall confirm that these regulations either do not apply to Contractor’s activities under the terms of this Agreement or that Contractor has procedures to ensure compliance. If Contractor is directly or indirectly employing a foreign national not currently lawfully admitted to the United Sates for permanent residence to perform work under this Agreement, Contractor warrants to FirstEnergy that such employment does not violate the foregoing regulations.

(P)   FOREIGN CORRUPT PRACTICES ACT PROVISIONS The following provisions shall apply to FirstEnergy and Contractor (unless it is a foreign concern) if it performs or obtains any of the work in a foreign country:

(1)   All payments to Contractor shall be by check or bank transfer only. No payment shall be in cash or by bearer instrument, and no payment shall be made to any corporation or Person other than Contractor. All payments due hereunder shall be made to Contractor at its principal place of business in the United States, even if Contractor performs or obtains the work in a foreign country.

(2)   Each of FirstEnergy and Contractor represents that it is familiar with the Foreign Corrupt Practices Act (the "FCPA") and its purposes; and that, in particular, it is familiar with the prohibition against paying or giving of anything of value, either directly or indirectly, by an American company to an official of a foreign government for the purpose of influencing an act or decision in his official capacity, or inducing him to use his influence with that government, to assist a company in obtaining or retaining business for or with, or directing business to, any Person.

(3)   Contractor shall not use any part of its compensation for any purpose, and shall take no action, that would constitute a violation of any law of the United States (including the FCPA) or of any jurisdiction where it performs services or manufactures or sells goods. Likewise, FirstEnergy shall take no action that would constitute a violation of any law of the United States (including the FCPA) or of any jurisdiction where it engages in business. FirstEnergy represents that it does not desire and will not request any work by Contractor that would or might constitute any such violation.

(4)   FirstEnergy may terminate this Agreement for default at any time, without any liability or obligation, if it believes, in good faith, that Contractor has violated this Section 10.3(P) . Any action by Contractor constituting a violation of the FCPA, or a request for such action from Contractor's representative, shall result in immediate termination of this Agreement for default. Should Contractor ever receive, directly or indirectly, from any FirstEnergy representative a request that Contractor believes will or might violate the FCPA, Contractor shall immediately notify FirstEnergy's general counsel.

(5)   FirstEnergy may disclose the existence and terms of this Agreement, including the compensation provisions, at any time, for any reason and to whomever FirstEnergy's general counsel determines has a legitimate need to know the same in connection with obligations under the FCPA, including the United States government, the government of any country where the work is performed or obtained, and any regulatory agency with jurisdiction over FirstEnergy.

"This policy will not be canceled or allowed to lapse, and no change shall be made in this policy which alters, restricts or reduces the insurance provided or changes the name of the insured without first giving at least thirty (30) days' notice in writing to FirstEnergy Corp., Risk Management Section, at its office in Akron, Ohio, with receipt of notice acknowledged."

(A)   Comprehensive General Liability insurance including Contractual Liability and including coverage of third-party claims arising out of Contractor’s professional liability (Errors and Omissions), and if any work is to be performed by Subcontractor, Contractors Protective Liability with minimum limits of $[******] per occurrence, combined single limit, for bodily injury and property damage. Coverage shall be on an occurrence-based form.

(B)   Comprehensive Automobile Liability insurance including non-ownership and hired car endorsement with minimum limits of $[******] per occurrence, combined single limit, for bodily injury and property damage. Coverage shall be on an occurrence-based form.

(C)   Worker’s Compensation coverage in the statutory amounts under the worker’s compensation act(s) of the location(s) in which the Project is to be performed, for the current period.

(D)   Employer's Liability with a minimum limit of $[******] per occurrence.

(E)   Excess liability insurance with a limit of $[******] each occurrence. Coverage shall be on an occurrence-based form.

(A)   For each Subproject, for the period from Notice to Proceed until commencement of the Warranty Period  (1) “All Risks” of  physical loss or damage to the Subproject and (2) any physical loss or damage to existing property of FirstEnergy or its Affiliates arising from or in connection with the  work hereunder ;  and

(B)   For each Subproject, during the Warranty Period,  extended maintenance covering loss or damage caused by any act or omission of Contractor or its Subcontractors while at the Site during the construction period and/or Contractor or its Subcontractors while at the Site for the purpose of doing any work in order to comply with the  warranty obligations under this Agreement.

Contractor shall separately invoice FirstEnergy for all policy premiums and FirstEnergy shall pay such invoice no later than the date of Contractor’s next subsequent payment due date provided under Section 5.1 above. 

Subject to the provisions of Section 18.4(A) , payment of all deductibles arising under this policy shall be to FirstEnergy’s account.

(A)   to the extent the amount requested is not in excess of the then Available Amount thereunder as determined in the Bond; and

(B)   the Agreement has not been terminated by reason of mutual consent or by FirstEnergy’s default; and

(C)   one of the following has occurred:

(1)   a Contractor Event of Default in respect of the subject Subproject has occurred; or

(2)   Contractor has not paid FirstEnergy any sums or damages in respect of the subject Subproject within the time stipulated, or, if none is provided, within a reasonable time, that it is obliged to pay pursuant to this Agreement in respect of such Subproject, including but not limited to any undisputed Schedule Liquidated Damages or Performance Liquidated Damages, and any amounts due pursuant to any indemnity, if applicable; and

(3)   the amount being claimed in respect of any of the above circumstances does not exceed FirstEnergy’s good faith estimate of the amount that FirstEnergy is entitled to recover from Contractor under the Agreement.

(A)   Warranty of Professional Services . Contractor hereby warrants that the Professional Services provided by Contractor shall be performed in accordance with Good Practices, the requirements of this Agreement, the Drawings and Specifications, Applicable Law, and Applicable Codes and Standards.

(B)   Warranty of Services Other Than Professional Services . Contractor hereby warrants that all Craft Labor, and any services other than Professional Services provided by Contractor and its Subcontractors, shall be performed in accordance with Good Practices, the requirements of this Agreement, the Drawings and Specifications, Applicable Law, and Applicable Codes and Standards. 

(C)   Warranty of Materials . Contractor hereby warrants that the Materials, and each component thereof (other than Materials provided by an FE Vendor) shall be: 

(1)   new, complete, fit for the purpose specified in this Agreement and of suitable grade for the intended function and use;

(2)   in accordance with Good Practices;

(3)   in accordance with this Agreement, including FirstEnergy’s Requirements, the Drawings and Specifications, Applicable Law, and Applicable Codes and Standards;

(4)   free of encumbrances to title; and

(5)   free from defects in design, material and workmanship.

(D)   Subcontractor Warranties . Contractor shall obtain warranties from Subcontractors consistent with Sections 13.1(A),   13.1(B) , and 13.1(C) , which shall be deemed to run to the benefit of FirstEnergy, its assignee(s), and Contractor. All warranties provided by any Subcontractor shall be in such form as to permit direct enforcement by Contractor or FirstEnergy (or its assignees) against any Subcontractor whose warranty is called for (but only in the event that Contractor has not performed, or no longer has any warranty obligations with respect to the subject matter of such directly enforced warranties). This Section 13.1(D) shall not in any way be construed to limit Contractor’s obligations under Sections 13.1(A),   13.1(B) , or 13.1(C) of this Agreement.

(E)   Exceptions to Warranty . The Warranty excludes remedy for damage or failure to the extent Contractor can demonstrate that such damage or failure was caused by: (i) improper repairs, replacements or alterations of the Project by FirstEnergy; (ii) operation, maintenance or use of the Project in a manner not in material compliance with the operating parameters to be mutually determined by the Parties during the Development Phase or (iii) maintenance that may be required as a result of normal wear and tear.

(A)   Correction of Work Prior to Commencement of the Warranty Period . With respect to each Subproject (or AQC Unit, as applicable), prior to commencement of the Warranty Period, Contractor shall promptly correct or procure the correction of work rejected by FirstEnergy or that fails to comply with the requirements of the Agreement, whether or not fabricated, installed or completed. FirstEnergy shall be responsible for paying in accordance with Exhibit 5.1 all costs of correcting such work, including additional testing and inspections and compensation for consultants retained by FirstEnergy and expenses made necessary thereby. For purposes of clarity, commencement of the Warranty Period shall not preclude Contractor’s right to be paid in accordance with Exhibit 5.1 for any work performed thereafter to fulfill any of its then remaining obligations, other than with respect to performance of work required to satisfy its Warranty obligations.

(B)   Correction of Work During the Warranty Period .

(1)   If, during the Warranty Period, FirstEnergy discovers any nonconformance with the warranties set forth in Section 13.1 ( “Warranty Non-Conformance” ), FirstEnergy shall provide Contractor with written notice detailing such Warranty Non-Conformance as soon as practicable following such discovery but in no event later than the end of the Warranty Period. Such notice shall be in accordance with warranty procedures (as will be mutually agreed upon between FirstEnergy and Contractor during the Development Phase).

(2)   In the event of any Warranty Non-Conformance with the warranty provided under Section 13.1(A) , Contractor shall, at its sole expense, reperform such non-conforming Professional Services. 

(3)   In addition, but subject to the limitation of remedies set forth in Section 13.3 , in the event of any Warranty Non-Conformance with the warranties provided under Section 13.1(A) , Section 13.1(B) or Section 13.1(C) , Contractor and/or its Subcontractors shall provide and perform (or reperform) any work (including any required assembly or disassembly of any affected work or other structure, installation, equipment, fixtures, or portion of the Site and or any required obligations under Section 3.9(B) ), whether by repair, replacement or otherwise, as required to correct any such Warranty Non-Conformance ( “Corrective Work” ), at Contractor’s expense. If the alleged nonconformance is established to be due to FirstEnergy act or omission or ordinary wear and tear or as otherwise excluded from warranty coverage under Section 13.1(E) , all reasonable Contractor costs will be the subject of a Change Order.

(C)   Response Period . During the Warranty Period, Contractor shall initiate Corrective Work within five (5) days after receiving notification from FirstEnergy of the existence of any Warranty Non-Conformance, or within such other period as the Parties may agree with due regard for the involvement of appropriate Subcontractors, and shall diligently and continuously use all reasonable efforts to complete same within thirty (30) days or such other period which such completion may reasonably require. Notwithstanding the foregoing, if a Warranty Non-Conformance causes a Generating Unit outage, or presents an imminent threat to the safety or health of any person or the risk of material damage to property, then Contractor shall initiate Corrective Work within the lesser of: (a) a reasonable period under the circumstances, or (b) twelve (12) hours; and shall diligently and continuously use all reasonable efforts to complete same within fifteen (15) days or such other period which such completion may reasonably require. The time periods specified in this Section 13.2(C) for initiation and completion of Corrective Work are referred to herein as the “Response Period.”

(D)   FirstEnergy Right to Correct or Complete Work . Subject to the limitations of remedies provided in Section 13.3 , during the Warranty Period, if Contractor fails or refuses to initiate Corrective Work or to diligently and continuously utilize all reasonable efforts to complete same within the Response Period, then FirstEnergy, after further notice to Contractor, may perform such Corrective Work with its own forces or those of another vendor, and (x) if there are outstanding amounts due to Contractor from FirstEnergy, charge Contractor a backcharge (at reasonable rates) against such outstanding amounts, or (y) in the event no such outstanding amounts exist, charge Contractor for all reasonable costs and expenses associated with the performance or reperformance of such Corrective Work.

(A)   Termination by FirstEnergy for Default . With respect to each Subproject, if Contractor shall at any time (i) refuse or materially fail to provide sufficient properly skilled workers, adequate supervision or materials of the proper quality; (ii) fail in any material respect to prosecute such Subproject according to the Project Schedule; (iii) materially fail to comply with any provision of this Agreement; (iv) make a general assignment for the benefit of its creditors; or (v) become insolvent, have a receiver appointed, or make a general assignment for the benefit of its creditors, in which such case the cure provisions found below shall not apply, then, after FirstEnergy serving written notice to Contractor specifying the nature and origin of the alleged default, unless Contractor shall have taken adequate steps to cure such condition within forty-five (45) days of such notice, or if the default is impossible to correct within such forty-five (45) day period], then within a reasonable period of time not to exceed sixty (60) days from the date of such notice (or a longer period, if agreed by FirstEnergy in its sole discretion) provided Contractor has commenced corrective action within seven (7) days after receiving notice of such condition from FirstEnergy and has proceeded diligently to cure such condition thereafter, then FirstEnergy, at its option, without voiding the other provisions of this Agreement and without further notice to any Party, may (a) take such steps as are necessary to overcome the condition, (b) terminate for default Contractor’s performance of all or any part of the Subproject by written notice to Contractor, or (c) seek specific performance or interlocutory mandatory injunctive relief requiring performance of Contractor’s obligations, provided, only to the extent that such relief may be necessary to avoid irreparable harm to FirstEnergy.

(B)   Additional Rights of FirstEnergy Upon Termination . In the event that FirstEnergy terminates this Agreement in whole or in part for default, then FirstEnergy may, at its sole option, (i) enter onto the Site and take possession, for the purpose of completing the Project, all of the equipment, Materials, tools, supplies, documents, and information of Contractor (subject to reasonable arrangement for costs associated therewith to the extent not already paid), (ii) take assignment of any or all of the Subcontracts, (iii) either itself or through others complete the Project by the most cost efficient means reasonably practicable, and/or (iv) recover from Contractor any direct damages suffered by FirstEnergy as a result of such default. Subject to FirstEnergy’s foregoing recovery rights, Contractor shall be paid according to the terms of this Agreement for all work performed and materials provided or committed prior to termination plus the amount of Fee and G&A accrued prior to the date of termination but shall not be entitled to recover any of its close out costs (except third party demobilization, cancellation and other termination costs if any). FirstEnergy’s rights under this Section 15.1(B) are in addition to any other rights provided for under this Agreement. FirstEnergy agrees to act reasonably and use its best efforts to mitigate any costs it might incur in connection with any termination for default. 

(C)   Erroneous Termination for Default . If any termination for default by FirstEnergy is found to be not in accordance with the provisions of this Agreement or is otherwise deemed to be unenforceable, then such termination for default shall be deemed to be a termination for convenience as provided in Section 15.2 .

(A)   Delay as set forth in Section 6.5 (including any fines and penalties imposed on the FirstEnergy Indemnified Parties as a result of a failure of the Project to be completed within the time required under the NSR Consent Decree); and

(B)   failure of the Project to achieve Performance Guarantees as set forth in Section 7.2 (including any fines and penalties imposed on the FirstEnergy Indemnified Parties as a result of a failure of the Project to meet the emission limits required under the NSR Consent Decree).

(A)   Contractor’s cumulative liability to FirstEnergy and its Affiliates for physical loss or damage to any property of such parties (including any Materials) shall not exceed the sum of: (i) the proceeds of the insurance coverage provided in Section 12.5, and (ii) $[******] per loss/event caused in whole or in part by Contractor or its Subcontractors fault or negligence prior to the end of the Warranty Period. No FirstEnergy Indemnified Party may make a claim under this Agreement for Losses arising out of damage to such Person’s property to the extent that such claim exceeds the foregoing limitation. 

(B)   With respect to each Subproject, Contractor’s cumulative liability to FirstEnergy with respect to the following matters shall not in the aggregate exceed the [******] by Contractor on such Subproject and FirstEnergy may not claim an amount in excess thereof:

(1)   any and all warranty obligations provided in Section 3.9(B) and Article 13 ;

(2)   any and all Schedule Liquidated Damages owed by Contractor, as provided in Section 6.5 ;

(3)   any and all Performance Liquidated Damages (where the Subproject is an FE Vendor Arrangement) owed by Contractor, as provided in Section 7.2 ; and

(4)   any and all amounts owed by Contractor pursuant to Section 15.1(B)(iv).

(C)   FirstEnergy may not claim an amount in excess of the amount set forth in Exhibit 7.2 with respect to Performance Liquidated Damages (where the Subproject is a Wrap Arrangement) owed by Contractor as provided in Section 7.2.

(D)   With respect to each Subproject, subject to the fo