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NRG Energy / NRG Generating U S - Construction Services Agreement
This Construction Services Contract (this "Contract") is made and entered into as of the 29th day of August, 1997, by and between NRG Energy, Inc. ("NRG") and NRG (Morris) Cogen, LLC ("Client"). Client accepts performance of the work outlined under "Scope of NRG's Services" in accordance with the attached General Terms and Conditions, Construction Management Services Contract.
ARTICLE 1 - SCOPE OF NRG'S SERVICES
A. NRG shall furnish the construction management services set forth
on Attachment 1 (the "Work") to Client.
B. NRG's work shall be performed in connection with the construction
of a 118 MW natural gas fired electrical steam generating facility at
Millenium Petrochemical's Morris, Illinois plant ("Project").
ARTICLE 2 - NRG'S COMPENSATION
Client shall pay NRG for the Work as set forth on Attachment 2.
ARTICLE 3 - ACCEPTANCE
Client and NRG agree to accept the Scope of NRG's Services and NRG's Compensation set forth above in accordance with the attached General Terms and Conditions, Construction Management Services Contract. Acceptance of this offer by ordering the start of the Work or otherwise is limited to acceptance of the terms and conditions of this Contract. Notwithstanding any additional terms that may be embodied in Client's purchase order or acknowledgment issued in response to this offer, the Work is performed only on the condition that Client assents to the terms and conditions set forth herein and objection is made to any varying or additional terms or conditions contained in Client's purchase order or acknowledgment.
NRG (MORRIS) COGEN, LLC NRG ENERGY, INC.
By: /s/ Craig Mataczynski By: /s/ Ronald J. Will
Printed Name: Craig A. Mataczynski Printed Name: Ronald J. Will
Title: Management Committee Title: Vice President Operations
Representative and Engineering
Date: 29 August, 1997 Date: August 29, 1997
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GENERAL TERMS AND CONDITIONS
CONSTRUCTION MANAGEMENT SERVICES CONTRACT
INTRODUCTION: These general terms and conditions apply to the Work to be performed by NRG as set forth on the face of this Contract and generally apply to the services of one or more engineers or technicians performing engineering and/or consulting services in or for the Project.
SCOPE OF SERVICES: The scope of services to be performed under this Contract shall be as set forth on the face of this Contract. Client may add to or delete services from the scope of Work and the provisions of this Contract shall apply to such changes. In the event of any such change or any delay, change, or occurrence beyond the reasonable control of NRG, NRG shall be entitled to an equitable adjustment of compensation and schedule.
COMPENSATION, PAYMENT, AND AUDIT: Compensation for the Work shall be as set forth on the face of this Contract. NRG shall invoice Client monthly for the Work performed and Client shall pay such invoice in full within ten (10) days after its receipt. For a period of one (1) year following completion of the Work, Client, its auditor, or other authorized representatives shall be afforded access at reasonable times to NRG's accounting records relating to the Work in order to audit all charges for the Work (except fixed mark-ups, fixed fees, lump sum amounts, and NRG's standard rates).
CHARGES FOR THE WORK: Client shall reimburse NRG for all costs, charges, expenses, taxes, fees, and losses not compensated by insurance, which are incurred by NRG in the performance of the Work. These shall include, but not be limited to:
1. Charges for time of all personnel employed by NRG in the
performance of the Work, plus a fixed mark-up of one hundred percent
(100%) of the time charges to cover Federal and State payroll taxes and
insurance, company benefit programs, overhead, and profit. This fixed
mark-up shall be subject to appropriate adjustment for any changes in
payroll taxes or insurance, or changes in company benefit programs.
2. Transportation, traveling, hotel, and living expenses, including
use of employees' personal cars at NRG's current standard rates. All
reasonable moving, relocation, travel, and living expenses incurred in
connection with assignment of NRG's permanent personnel to a location
other than NRG's permanent offices and from such location at the
conclusion of assignment.
3. Miscellaneous expenses, including but not limited to telegrams,
telex, telefacsimile, telephone services, postage, and similar
miscellaneous items incurred in connection with the Work (all at NRG's
current standard rates).
4. Reproduction costs of all drawings, manuals, specifications, and
other documents required for the Work; and costs for the use of
computer, all at NRG's current standard
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rates or at actual cost to NRG if prepared by others.
5. Cost of any permits, fees, licenses, or royalties required for the
Work. Costs of any sales, use, or similar taxes or fees imposed by a
Federal, State, Municipal, or other government or agency thereof.
6. Fees, costs, damages, or disbursements incurred in connection with
any labor, patent, or commercial litigation or any third party claim,
suit, or cause of action, arising out of or in connection with the
performance of the Contract by NRG (except disputes between NRG and
Client), or claims, suits or causes of action pursued on behalf of
Client by NRG.
7. Premiums and brokerage fees on all bonds and insurance policies
which may be required by Client in addition to those listed herein, and
any loss under the deductible features of any insurance policies,
whether furnished by NRG or Client.
Notwithstanding the foregoing, or any estimates contained in Attachment 2, NRG agrees that its total compensation for Work, including the Administrative Fee of $200,000, shall not exceed $1.2 million.
PROSECUTION OF THE WORK; FORCE MAJEURE: NRG shall substantially complete the Work in accordance with the Project Schedule mutually agreed upon between Client and NRG. Any completion dates specified are tentative only and NRG shall have no liability to Client for late completion. If the prosecution of the Work is delayed or affected by any of the following force majeure occurrences: acts or failures to act by Client, or any separate contractors, engineers, vendors, or consultants employed by Client, or any other party not in privity of contract with NRG; acts of God or the elements; acts or failures to act by government or any agency thereof; changes, inaccuracies, incompleteness, or differences in site conditions or any data or information supplied to NRG; changes in laws or regulations; delays in permitting; delays in receipt of engineering data or vendor drawings; fire; unusually severe weather, natural disasters, or unavoidable casualties; riot; civil disorders; labor shortages or disputes; strikes, picketing, or arbitration proceedings; delays in transportation, material, or equipment deliveries; material, equipment, or fuel shortages; or any other causes beyond NRG's reasonable control, the Project Schedule shall be extended for the period of time attributable to such delay and all fixed elements of pricing, if any, shall be equitably adjusted.
LIABILITY INSURANCE: During performance of this Contract, NRG shall keep in force Worker's Compensation Insurance/Employer's Liability Insurance for its employees with limits required by law; Comprehensive or Commercial General Liability Insurance, with a $1,000,000 combined occurrence and combined aggregate bodily injury and property damage limit, and Automobile Liability Insurance, with a combined single limit of $1,000,000.
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WAIVER OF SUBROGATION: Client waives all rights and any subrogation rights such as it or its insurers may have against NRG, its vendors and subcontractors and their employees, agents, officers, directors, and any of their affiliated or associated companies, for any losses or damages, including without limitation loss of use and all consequential damages thereof, to its existing plant or other property, including without limitation property to be incorporated into the Project, resulting from any and all risks and losses, however and whenever arising, including without limitation those arising from risks of fire, or other extended coverage or similar perils, business interruption, transit damages or losses,...
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