Preview of our top selling Turnkey Construction Contract
LSP Batesville Funding - Turnkey Engineering, Procurement & Construction Agreement of Electric Generation Plant
Exhibit 10.8
TURNKEY ENGINEERING, PROCUREMENT AND
CONSTRUCTION AGREEMENT
by and between
LSP Energy Limited Partnership
as Owner
and
BVZ Power Partners - Batesville
as Contractor
Dated as of July 22, 1998
1
TABLE OF CONTENTS
Page
----
ARTICLE 1. DEFINITIONS.......................................................1
ARTICLE 2. RELATIONSHIP OF OWNER, CONTRACTOR AND SUBCONTRACTORS.............15
2.1. Status of Contractor................................................15
2.2. Subcontractors......................................................15
2.3. Data From Subcontractors............................................16
ARTICLE 3. CONTRACTOR'S RESPONSIBILITIES....................................17
3.1. Facility Design and Construction....................................17
3.2. Subcontractors......................................................18
3.3. Control of the Work.................................................18
3.4. Related Costs.......................................................18
3.5. Operator Orientation................................................18
3.6. Clean-up............................................................18
3.7. Safety..............................................................19
3.8. Reasonable Access...................................................19
3.9. Emergencies.........................................................19
3.10. License............................................................20
3.11. Approvals, Certificates, Permits, and Licenses.....................20
3.12. Compliance with Laws...............................................20
3.13. Status Reports.....................................................21
3.14. Taxes..............................................................21
3.15. Owner's Right to Inspect; Correction of Defects....................21
3.16. Procurement........................................................22
3.17. Assistance.........................................................23
3.18. Publicity..........................................................24
3.19. Personnel - General................................................24
3.20. Project Executive..................................................24
3.21. Approval of Key Personnel..........................................25
3.22. Spare Parts........................................................25
3.23. Final Manuals and Record Drawings..................................26
3.24. Interconnection....................................................26
3.25. Contractor Consumables.............................................26
3.26. Fire Prevention....................................................26
3.27. First Aid Facilities...............................................27
3.28. Environmental Conditions...........................................27
3.29. Site Conditions....................................................27
3.30. Owner's Field Office...............................................28
3.31. Responsibility for Work, Security and Property.....................28
i
3.32. Commercial Activities..............................................28
3.33. Illumination.......................................................29
3.34. Explosives.........................................................29
3.35. Consumables Assistance.............................................29
3.36. Coordination of Final Acceptance Tests.............................29
3.37. Coordination of Early Substantial Completion.......................30
ARTICLE 4. OWNER'S RESPONSIBILITIES.........................................30
4.1. Owner Consumables...................................................30
4.2. Payment.............................................................31
4.3. Access to Site......................................................31
4.4. Owner Approvals, Certificates, Permits, and Licenses................31
4.5. Owner Taxes.........................................................31
4.6. Owner Operating Personnel...........................................32
4.7. Interconnection.....................................................32
4.8. Approval of Engineering Drawing.....................................32
4.9. Owner's Project Manager.............................................33
4.10. Waste Disposal.....................................................33
4.11. Spare Parts........................................................33
4.12. Acceptance of Electricity..........................................34
4.13. Cooperation in Purchase Order Administration.......................34
ARTICLE 5. COMMENCEMENT OF WORK.............................................34
5.1. Commencement of Work................................................34
5.2. Schedule............................................................34
5.3. Limited Notice to Proceed...........................................35
ARTICLE 6. CHANGE ORDERS; FORCE MAJEURE.....................................35
6.1. Change Orders.......................................................35
6.2. Request by Owner....................................................35
6.3. Request By Contractor...............................................36
6.4. Price and Schedule Adjustments for Change Order Work................37
6.5. Force Majeure.......................................................37
ARTICLE 7. MAXIMUM PRICE; CONTRACT PRICE; PAYMENTS TO CONTRACTOR............38
7.1. Maximum Price; Contract Price.......................................38
7.2. Progress Payments...................................................38
7.3. Final Acceptance Test Completion Payment............................39
7.4. Final Completion Payment............................................40
7.5. Payments Not Acceptance of Work.....................................41
7.6. Payments Withheld...................................................41
7.7. Payment of Subcontractors...........................................42
ii
7.8. Liens...............................................................42
7.9. Late Payments.......................................................43
ARTICLE 8. TITLE AND RISK OF LOSS...........................................43
8.1. Clear Title.........................................................43
8.2. Risk of Loss........................................................43
ARTICLE 9. INSURANCE........................................................44
ARTICLE 10. COMPLETION......................................................44
10.1. Mechanical Completion; Substantial Completion; Final Acceptance Test
Completion...............................................................44
10.2. Notice of Substantial Completion...................................49
10.3. Punchlist. Concurrent with the submission of any Certificate of
Substantial Completion by Contractor,....................................50
10.4. Notice of Final Acceptance Test Completion.........................50
10.5. Final Completion...................................................51
10.6. Right of Waiver....................................................51
10.7. Long-Term Obligations..............................................51
10.8. Operating Revenues.................................................51
ARTICLE 11. WARRANTY AND GUARANTY...........................................52
11.1. Contractor's Warranty..............................................52
11.2. Remedy.............................................................52
11.3. Vendor Warranties..................................................53
11.4. Warranty Limitations...............................................54
ARTICLE 12. ACCEPTANCE TESTING AND SCHEDULE AND PERFORMANCE GUARANTEES......54
12.1. Guarantee of Timely Completion.....................................54
12.2. Delays Caused by Contractor........................................54
12.3. Schedule Bonus.....................................................55
12.4. Acceptance Tests...................................................55
12.5. Setoff; Payment of Liquidated Damages..............................65
ARTICLE 13. LIMITATIONS ON LIABILITY; BONUSES...............................65
13.1. Limitation of Liquidated Damages...................................65
13.2. Limitations of Bonuses.............................................65
13.3. Maximum Liability..................................................65
13.4. Consequential Damages..............................................66
13.5. Releases Valid in All Events.......................................66
13.6. Liquidated Damages Not Penalty.....................................66
13.7. No Implied Warranties..............................................67
iii
ARTICLE 14. CONTRACTOR'S REPRESENTATIONS....................................67
14.1. Corporate Standing.................................................67
14.2. No Violation of Law; Litigation....................................67
14.3. Consents; Licenses.................................................68
14.4. No Breach..........................................................68
14.5. Partnership Action.................................................68
14.6. Qualifications.....................................................68
ARTICLE 15. OWNER'S REPRESENTATIONS.........................................69
15.1. Corporate Standing.................................................69
15.2. Litigation.........................................................69
15.3. No Breach..........................................................69
15.4. Partnership Action.................................................69
ARTICLE 16. DEFAULT AND TERMINATION.........................................70
16.1. Default by Contractor..............................................70
16.2. Optional Termination by Owner......................................73
16.3. Termination by Contractor..........................................74
16.4. Suspension of the Work.............................................75
ARTICLE 17. INDEMNITIES.....................................................76
17.1. General Indemnity..................................................76
17.2. Patent Indemnification.............................................77
17.3. Effect of Owner's Actions..........................................77
17.4. No Limitation of Contractor's Obligation...........................77
17.5. Tax Indemnity......................................................78
17.6. Availability Reimbursement. (a)...................................78
ARTICLE 18. DISPUTE RESOLUTION..............................................79
18.1. Procedure..........................................................79
18.2. Litigation and Submission to Jurisdiction..........................80
18.3. Continuation of Work...............................................80
ARTICLE 19. MISCELLANEOUS PROVISIONS........................................81
19.1. Entire Agreement...................................................81
19.2. Amendments.........................................................81
19.3. Joint Effort.......................................................81
19.4. Captions...........................................................81
19.5. Notice.............................................................82
19.6. Severability.......................................................83
19.7. Confidentiality....................................................83
19.8. Assignment.........................................................84
iv
19.9. No Waiver..........................................................85
19.10. APPLICABLE LAW....................................................85
19.11. Successors and Assigns............................................85
19.12. Exhibits..........................................................85
19.13. Obligations.......................................................85
19.14. Financing Assistance..............................................86
19.15. Further Assurances................................................86
19.16. Priority..........................................................86
19.17. Counterparts......................................................87
19.18. Lender Approval...................................................87
19.19. Non-Recourse......................................................87
19.20. Joint and Several Liability.......................................87
ARTICLE 20. INFRASTRUCTURE..................................................88
20.1. Intention..........................................................88
20.2. Engineering and Design.............................................88
20.3. Payments...........................................................90
v
EXHIBIT INDEX
-------------
Exhibit A -- Acceptance Tests Exhibit B -- Form of Certificate of Substantial Completion Exhibit C -- Form of Certificate of Final Acceptance Test Completion Exhibit D -- Form of Final Completion Certificate Exhibit E-1 -- Form of Limited Notice to Proceed Exhibit E-2 -- Form of Notice to Proceed Exhibit F-1 -- Schedule of Values Exhibit F-2 -- Estimated Cash Flow Exhibit G -- Form of Progress Invoice Exhibit H -- Project Schedule Exhibit I-1 -- Scope of Services - Plant Exhibit I-2 -- Scope of Supply - Plant Exhibit I-3 -- Scope of Services - Infrastructure Exhibit I-4 -- Scope of Supply - Infrastructure Exhibit J -- Site Description Exhibit K -- List of Owner-Procured Equipment and Services Exhibit L -- List of Common Facilities Equipment Exhibit M -- Permits Exhibit N -- Reimbursement Schedule for Change Orders Exhibit O -- Insurance Exhibit P -- List of Approved Subcontractors Exhibit Q -- Plans/Specifications Exhibit R -- Owner Obligations Exhibit S -- Requirements of Project Agreements
vi
TURNKEY ENGINEERING, PROCUREMENT
AND CONSTRUCTION AGREEMENT
This TURNKEY ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT dated as of July 22, 1998 (the "Effective Date"), by and between LSP Energy Limited Partnership, a Delaware limited partnership, having its principal place of business at c/o LS Power, LLC, Two Tower Center, 10th Floor, East Brunswick, New Jersey 08816 ("Owner") and BVZ Power Partners - Batesville, a joint venture between Black & Veatch Construction, Inc., a Missouri corporation and H.B. Zachry Company, a Delaware corporation, having its principal place of business at 11401 Lamar Avenue, Overland Park, Kansas 66211 ("Contractor").
W I T N E S E T H:
WHEREAS, Owner desires to engage Contractor to design, engineer, procure, construct, start-up and test a nominal 800 megawatt gas-fired, electric generation plant (the "Facility"), to be located in Batesville, Mississippi;
WHEREAS, Contractor desires to provide design, engineering, procurement, construction, start-up and testing for the Facility on a turnkey, stipulated, fixed-sum basis under the terms and conditions of this Agreement;
WHEREAS, Contractor is willing to guarantee the timely completion and warrant the proper construction and installation of the Facility, as hereinafter described; and
WHEREAS, Contractor is willing to guarantee the operating performance of the Facility to certain minimum standards for a period of operation, as hereinafter described.
NOW THEREFORE, in consideration of the premises and the mutual promises and agreements of the parties herein expressed, the parties, intending to be legally bound, hereby agree as follows:
ARTICLE 1.
DEFINITIONS
Except as otherwise expressly provided or unless the context otherwise requires, the following terms shall have the meanings specified in this Article 1 when capitalized and used in this Agreement. The meanings specified are applicable to both the singular and plural.
"Acceptance Tests" shall mean the Unit Power Output Test, the Maximum Unit Power Output Test, the Unit Heat Rate Test, the Auxiliary Load Test, the Maximum Auxiliary Load Test, the Cooling Tower Performance Test, the Availability Test, the Reliability Test, the Start-up Test, the Sound Level Test, the Emissions Test and the Capability Tests, as such tests are described in Exhibit A.
1
"Acceptance Testing Notice" shall have the meaning set forth in Section 12.4(a).
"Affiliate" shall mean any entity owned by, owning, controlled by, controlling, or under common control with or ownership of Contractor, any general partner of Contractor or Owner, as the case may be.
"Agreement" shall mean this Turnkey Engineering, Procurement and Construction Agreement (including all Exhibits attached hereto) as amended, supplemented or otherwise modified from time to time.
"Authority" shall mean the Mississippi Major Economic Impact Authority, a division of and within the Department of Economic and Community Development of the State of Mississippi.
"Auxiliary Load Guarantee" shall mean the "Auxiliary Load" performance criteria for the facility set forth in Exhibit A.
"Auxiliary Load Test" shall mean the test described in Exhibit A to demonstrate and verify compliance of the Facility with the Auxiliary Load Guarantee.
"Availability Guarantee" shall mean the availability performance criteria for the Facility set forth in Exhibit A.
"Availability Test" shall mean the test described in Exhibit A to demonstrate and verify compliance of the Facility with the Availability Guarantee.
"Base Conditions" shall mean those conditions specified in Exhibit A under which the Guaranteed Values are made.
"BTU" shall mean British Thermal Unit.
"Business Day" shall mean any calendar day other than a Saturday, Sunday or Federal holiday.
"Capability Tests" shall mean, collectively, the Substantial Completion Capability Tests and the Final Completion Capability Tests.
"Certificate of Final Acceptance Test Completion" shall mean the certificate furnished by Contractor pursuant to Section 10.4 in the form of Exhibit C attached hereto.
"Certificate of Substantial Completion" shall mean the certificate furnished by Contractor pursuant to Section 10.2 in the form of Exhibit B attached hereto.
"Change in Law" shall mean any changes in applicable Law following the Effective Date.
2
"Change Order" shall mean a written order to Contractor pursuant to Article 6 hereof, signed by Owner, and countersigned by Contractor, authorizing an addition, deletion or revision in the Work, the Scope of Work, the Project Schedule, the Guaranteed Completion Date, the Payment Schedule or the Maximum Price.
"Commercial Tolerance Band" shall mean (a) with respect to Unit Power Output and Maximum Unit Power Output, 0.0075 and (b) with respect to Unit Heat Rate, 0.0125, in each case as such commercial tolerance band may be adjusted pursuant to Section 2.1.8 of Exhibit A.
"Common Facilities" shall mean the Equipment designated as "common facilities" on Exhibit L, together with all associated equipment, buildings, facilities, supports, wiring, instruments and controls, pumps and piping, motors, actuators, valves and other systems which are needed to make them operational.
"Construction Financing" shall mean the arrangements made by Owner to fully finance the development, construction, start-up and testing of the Facility.
"Consumables" shall have the meaning set forth in Section 4.1.
"Contract Price" shall mean the amount representing the difference between the Maximum Price and the Extra-Contractual Costs and, with the exception of the reimbursements for taxes to be made by Owner to Contractor pursuant to Section 4.5 and Article 7, shall be the entire amount which is payable by Owner to Contractor for performing the Work (including the Preliminary Work) to be performed by Contractor under this Agreement. Owner and Contractor agree that the Contract Price is initially estimated to be the amount of Sixty-Seven Million Four Hundred Ninety-Eight Thousand Three Hundred dollars ($67,498,300), to be adjusted subsequently, however, as provided herein.
"Cooling Tower Performance Guarantee" shall mean the "Cooling Tower Performance" criteria for the Facility set forth in Exhibit A.
"Cooling Tower Performance Shortfall" shall have the meaning set forth in Section 12.4(c)(6).
"Cooling Tower Performance Test" shall mean the test described in Exhibit A to demonstrate and verify compliance of the Facility with the Cooling Tower Performance Guarantee.
"Date Certain" shall mean the date or dates which occur(s) three hundred (300) Days after the Guaranteed Completion Date.
"Day" shall mean a calendar day and shall include Saturdays, Sundays and holidays, except that, in the event that a monetary obligation to be performed under this
3
Agreement falls due on a day other than a Business Day, such obligation shall be deemed due on the next Business Day thereafter.
"Delay Liquidated Damages" shall mean the liquidated damages payable by Contractor to Owner pursuant to Section 12.2, Section 16.1.6 (b) and Section 17.6.
"Effective Date" shall mean the date stated as the Effective Date on the first page hereof.
"Emissions Guarantee" shall mean each Unit's performance criteria for air emissions and exhaust set forth in Exhibit A.
"Emissions Test" shall mean the test described in Exhibit A to demonstrate and verify compliance of each Unit with the Emissions Guarantee.
"Equipment" shall mean all of the machinery, equipment, materials, apparatus, structures, supplies and other goods provided or required by the terms of this Agreement to be provided by Contractor and each Subcontractor or procured by Owner pursuant to Section 3.16(b) in connection with the performance of the Work (except that the term "Equipment" shall not include any materials, apparatus, or tools owned by Contractor or any Subcontractor which are used to complete the Work but are not contemplated under this Agreement to become part of the Facility).
"Extra-Contractual Costs" shall mean the sum of the various costs of all the Owner Purchases, including all other direct costs associated with the procurement thereof, including, without limitation, any transportation or insurance charges, duties, fees, or royalties imposed with respect thereto, any late charges or interest imposed by a Vendor or other manufacturer, owner, supplier on, or any foregone discounts for early payment of, an invoice, bill or statement caused by an unreasonable delay by Contractor in the review, verification, approval and forwarding to Owner thereof for payment pursuant to Section 3.16(b), but excluding any sales, use, contractor's or similar taxes which are imposed with respect to the Owner Purchases.
"Facility" shall mean, collectively, the Plant and the Infrastructure.
"Final Acceptance Test Completion" shall have the meaning set forth in Section 10.1(c).
"Final Completion" shall have the meaning set forth in Section 10.5 hereof.
"Final Completion Capability Tests" shall mean the Duct Burner Maximum Capability Test, the Water/Steam Purity Test, the Steam Turbine By-pass Test, the Facility Backup Power Transfer Test, the Boiler Feed Pump Trip Test, the Demineralizer Capacity Test, the Power Factor Test and the Wastewater Discharge Test described in Exhibit A to demonstrate the ability of such equipment and systems within the Facility to meet the requirements specified in Exhibit A.
4
"Final Completion Certificate" shall mean the certificate duly completed and executed by Contractor, substantially in the form of Exhibit D hereto.
"Final Completion Date" shall mean the date on which Final Completion occurs in accordance with the provisions of Section 10.5 hereof.
"Final Test Report" shall mean Contractor's written report describing the results and procedures of the Acceptance Tests in sufficient detail to verify the Facility has met the requirements set forth in Exhibit A hereto.
"First Unit" shall mean the first Unit to achieve Mechanical Completion.
"Force Majeure" shall mean any act or event beyond the reasonable control of, and without the fault or negligence of, the person relying upon the act or event, including without limitation the following acts or events, but only to the extent such act or event (i) is the cause of a delay in or prevents performance or the meeting of an obligation of Contractor or a Subcontractor or Owner hereunder and (ii) is reasonably unforeseeable:
(a) any destruction of or damage to material items of equipment, or any
interruption, suspension or interference with Contractor's, a
Subcontractor's or Owner's performance hereunder, which destruction,
damage, interruption, suspension or interference is caused by acts
of God, landslides, lightning, earthquakes, fires or explosions,
floods, epidemic, hurricanes, tornadoes, abnormal severe storms,
accidents or delays in shipping or transportation that are the
direct result of any other event enumerated in this subsection (a),
acts of a public enemy, wars, blockades, riots, rebellions,
sabotage, insurrections, governmental actions or inactions or civil
disturbances; or
(b) national, regional or local labor strikes, work stoppages, boycotts,
walkouts and other labor difficulties or shortages ("Labor
Disputes"), provided, however, that Labor Disputes on the Site and
involving Contractor's (or its Affiliate's) or Subcontractor's
employees shall not constitute an event of Force Majeure unless such
Labor Disputes are caused by a national labor strike.
Force Majeure shall not mean any act or event to the extent resulting from the financial inability of any person to perform its obligations under this Agreement. Force Majeure shall not include (i) the inability to obtain labor, equipment or other materials or supplies for the Work (unless the result of a Force Majeure event), (ii) equipment failures due to wear and tear or defects in manufacture, design, and construction, (iii) changes in market conditions that affect the cost or availability of supply of goods or services and (iv) the failure to timely apply for government permits and approvals.
"Funding Date" shall mean the date on which funds are available to be drawn down by Owner under the terms of the Construction Financing.
5
"Guaranteed Completion Date" shall mean July 1, 2000; provided, that (i) in the event the Notice to Proceed is not issued by Owner on or prior to August 5, 1998, the Guaranteed Completion Date with respect to Unit 3 shall mean July 1, 2000 as extended day for day for each day in the period from August 5, 1998 up to (but not including) such date as the Notice to Proceed is issued, (ii) in the event the Notice to Proceed is not issued by Owner on or prior to August 10, 1998, the Guaranteed Completion Date with respect to Unit 2 shall mean July 1, 2000 as extended day for day for each day in the period from August 10, 1998 up to (but not including) such as date as the Notice to Proceed is issued and (iii) in the event the Notice to Proceed is not issued by Owner on or prior to August 20, 1998, the Guaranteed Completion Date with respect to Unit 1 shall mean July 1, 2000 as extended day for day for each day in the period from August 20, 1998 up to (but not including) such date as the Notice to Proceed is issued; provided, further, any such date(s) may be extended pursuant to the terms of Article 6 hereof.
"Guaranteed Test Fuel Quantity" shall mean 2,924,000 million BTU, which quantity is the total quantity of fuel guaranteed by Contractor to be required to perform the Acceptance Tests set forth in Exhibit A to demonstrate the achievement of Substantial Completion of the three Units.
"Guaranteed Values" shall mean the Unit Heat Rate Guarantee, the Unit Power Output Guarantee, the Maximum Unit Power Output Guarantee, the Auxiliary Load Guarantee, the Maximum Auxiliary Load Guarantee, the Cooling Tower Performance Guarantee, the Availability Guarantee, the Reliability Guarantee, the Start-up Guarantees, the Sound Level Guarantee and the Emissions Guarantee.
"Hazardous Materials" shall mean any "hazardous substance" as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss.ss. 9601, et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. ss.ss. 1801, et seq.), "hazardous wastes" as defined in the Resource Conservation and Recovery Act, as amended (42 U.S.C. ss.ss. 9601, et seq.), "toxic substances" as defined in the Toxic Substance Control Act as amended (15 U.S.C. ss.ss. 2601 et seq.), "contaminants" as defined in the Environmental Protection Act, R.S.O. 1990., C.E. 19, "toxic substances" as defined in the Environmental Protection Act, S.C. 1991 c. 15.3, as amended and in the regulations adopted, published, and promulgated pursuant thereto, or in any other Laws.
"Independent Engineer" shall mean the engineering firm retained by the Lender (other than the Authority or Local Government) to review and report on the development and construction of the Facility for the Lender.
"Infrastructure" shall mean those portions of the Facility (excluding the Plant) generally described as an industrial water supply system, a process wastewater disposal system, a fire protection system, and a natural gas pipeline and interconnection system, to be constructed or included at the Site in accordance with this Agreement and in accordance with and as more particularly described in the Scope of Work - Infrastructure and as set forth in Exhibit I-3 and Exhibit I-4.
6
"Infrastructure Equipment" shall mean that portion of the Equipment and/or systems relating to the Infrastructure.
"kW" shall mean kilowatts.
"kWh" shall mean kilowatt-hours.
"Key Personnel" shall mean the individuals appointed by Contractor and approved by Owner to serve as Project Executive, and the engineering, Site, construction, and start-up managers.
"Law" shall mean any applicable constitution, charter, act, statute, law, ordinance, code, rule, regulation, judgment, decree, writ, order, permit, approval, or the like, as any of the foregoing may change from time to time, of any federal, state or local government or any agency, department, authority, political subdivision or other instrumentality thereof.
"Lender" shall mean the bank, financial institution or institutions, Authority or Local Government providing Construction Financing for the Facility.
"Limited Notice to Proceed" shall mean a notice to Contractor by Owner with respect to the Preliminary Work, substantially in the form set forth in Exhibit E-1, hereto.
"Liquidated Damages" shall mean, collectively, Delay Liquidated Damages and Performance Liquidated Damages.
"Local Government" shall mean, collectively, Panola County, Mississippi and the Industrial Development Authority of the Second Judicial District of Panola County, Mississippi..
"Maximum Auxiliary Load Guarantee" shall mean the "Maximum Auxiliary Load" performance criteria for the Facility set forth in Exhibit A.
"Maximum Auxiliary Load Test" shall mean the test described in Exhibit A to demonstrate and verify compliance of the Facility with the Maximum Auxiliary Load Guarantee.
"Maximum Price" shall mean the total amount of Two Hundred Thirty-Nine Million Nine Hundred Ninety Eight Thousand and Three Hundred dollars ($239,998,300), which amount (i) represents, with the exception of the reimbursements for taxes to be made by Owner to Contractor or Subcontractors pursuant to Section 4.5 and Article 7, the total cost to Owner for the entire Facility, (ii) represents the aggregate of the Contract Price and the Extra-Contractual Costs, and (iii) is not subject to change except as subsequently otherwise adjusted herein.
"Maximum Unit Power Output Guarantee" shall mean the "Maximum Unit Power Output" performance criteria for each Unit set forth in Exhibit A.
7
"Maximum Unit Power Output Test" shall mean the test described in Exhibit A to demonstrate and verify compliance of each Unit with the Maximum Unit Power Output Guarantee.
"Mechanical Completion" shall mean, with respect to a Unit or the Common Facilities, that (except for portions of the Work which the parties agree do not materially affect the operability, safety and mechanical and electrical integrity of the Unit and the Facility)(i) Contractor has complied with all provisions of this Agreement relating to the installation of all necessary components and systems; (ii) it is mechanically and electrically sound and free from defects; (iii) Contractor has successfully completed start-up and check-out of all components and systems; (iv) Contractor shall have completed the training program required under Section 3.5; (v) the equipment may be initially operated by Owner's operating personnel without damage to the Unit, the Facility or any other property and without injury to any person; (vi) initial synchronization with the utility transmission system(s) has occurred; (vii) the equipment (including interconnection equipment) is ready for initial operation, adjustment and testing; and (viii) it is ready for commencement of the Acceptance Tests.
"Non-Significant Change Order" shall mean all Change Orders issued with respect to Work relating to or being performed on the Site until the aggregate of such Change Order work being performed by Contractor and any Subcontractors, collectively, exceeds one thousand (1000) engineering manhours and ten thousand (10,000) construction manhours.
"Notice to Proceed" shall mean a notice to be delivered by Owner to Contractor on or after the Funding Date directing the commencement of the Work, substantially in the form set forth in Exhibit E-2.
"Operator" shall mean the operator under the agreement to be entered into by Owner providing for the operation and maintenance of the Facility.
"Owner Delay" shall mean a delay caused by Owner's failure to (i) perform or cause the performance of its obligations under Article 4 (other than an act or inaction by Owner acting under or in accordance with Contractor's instructions or authorizations) or (ii) provide the Notice to Proceed on or before August 20, 1998.
"Owner Purchases" shall mean, collectively, the purchases of those certain services and/or items of machinery, equipment, and component materials becoming an integral part of the Facility, including but not limited to those items listed in Exhibit K, which will be procured and paid for directly by Owner pursuant to and in accordance with the procurement procedures described in Section 3.16(b) under which such purchases shall be considered sold directly to, billed directly to, and paid for direct...
View agreement details