ABSTRACT
The Contractor shall take all necessary action to perform its obligations hereunder68 including engineering, designing, procuring, constructing, installing, commissioning and testing the Facility on a fixed price, turnkey basis, including all the items specified in, or [{reasonably}] implied by, this Contract (the “Work”) and, toward this end, the Contractor, at its own expense, shall:
[(a) prior to the Work Commencement Date: [(i) cooperate with the Financing Parties concerning the Sponsor’s financing
of the Facility;] [(ii) perform design work to the extent expressly specified in the Baseline
Schedule;] [(iii) carefully review the Environmental Report and take into account the con-
tents thereof in connection with the design and engineering of the Facility and the performance of all other portions of the Work;]69 [and]
[(iv) select reputable experts to conduct, prepare and submit to the Sponsor within <<insert number>> Days] of the Contract Date, the <Site> <Route> Assessment,70 which shall be based solely on the results of a thorough investigation of the <Site> <Route> [according to the scope set forth in Exhibit 5.1(a)(iv)] to ensure that the Facility’s design is compatible with existing <Site> <Route> conditions and before any part of the Work on <Site> <Route> is commenced, all necessary levels, including ground water levels, shall be measured by the Contractor and reported to the Sponsor and the recorded levels shall be submitted by the Contractor to the Sponsor in the form of a drawing;]]
(b) execute the Work and structure its purchase orders (including provisions for cancellation and the longest available payment terms under the circumstances) in such a manner as to minimize the economic impact to the Sponsor if the Work is canceled after the Work Commencement Date;71
(c) [carry out the Work in a manner that will minimize any interference with the ongoing operations of the currently operating <<insert type>> facility located <adjacent to> <at> the Site (the “Existing Plant”);]
(d) arrange for and provide at its expense all Consumables to be used in connection with the Facility until the Facility Provisional Acceptance Date except to the extent such is consumed in connection with the operation of the Units or the Facility by the Sponsor under Article 8.11;
(e) prepare on behalf of the Sponsor, on a timely basis sufficient to allow the Sponsor to meet all its notice obligations contained in the << [Sponsor Information] insert relevant agreements>>, all notices required to be given to any Person thereunder [including notices concerning the dates of testing the Facility and initial synchronization of the Units];
(f) [cooperate with the Sponsor [{in all reasonable respects}] concerning the Sponsor’s application(s) for benefits under the <<insert name of program >> program including with regard to preparing and certifying documentation;]
(g) promptly provide all necessary technical support and prepare all documentation and application (including engineering and design information) related to the Work required by the Sponsor for the Sponsor to obtain the Sponsor Permits by the times contemplated in the Baseline Schedule;
(h) perform all Work continuously and diligently in accordance with the Baseline Level 3 Schedule in order to achieve the Completion Guarantees and provide any information the Sponsor [or any Financing Party] may [{reasonably}] request to verify progress of the Work and predict future progress of the Work;
(i) immediately notify the Sponsor in writing at any time that there is reason to believe that any Critical Path Item on the Baseline Level 3 Schedule (including the Completion Guarantees) will not be completed by the times predicted therein and specify in such notice the reasons therefor and the corrective action planned by the Contractor;
(j) if the Sponsor determines [{and is advised in a written report by a reputable advisor approved by the Contractor from the list set forth in Exhibit 5.1(j)}] that the Contractor is unlikely to maintain the progress that is necessary to achieve the Completion Guarantees, work such hours, including night shifts, weekends and Days, and furnish such additional personnel and/or construction equipment as may be necessary to return to, and thereafter maintain, the Baseline Level 3 Schedule;
(k) provide specifications, engineering and designs of the Facility, which shall be consistent with the design and equipment parameters set forth in this Contract, including the Functional Specifications, and construct the Facility in accordance with such specifications, engineering and design;
(l) design, construct, install and commission: (i) the Interconnection Facilities in accordance with this Contract [including
those contained in the Sponsor Information] [and the Interconnection Requirements] [and Customary Utility Requirements];72 and
(ii) the Tie-ins and Utility Tie-Ins in accordance with the requirements of this Contract and the [Customary Utility Requirements] [requirements]73 of the Persons providing utilities and other services to the Facility;
(m) procure and supply all machinery, Equipment, supplies and services for the Facility and the engineering, design, construction, start up, testing and commissioning thereof, all in accordance with this Contract;
(n) provide in writing to the Sponsor not later than <<insert number>> Days after the Work Commencement Date [[Unit] [Facility] Commissioning Completion [of Unit One] a list of recommended spare Parts to be kept on Site for the Facility [for the <<insert number>> Day period commencing on the termination of the Warranty Notification Period];74
(o) provide all services of, and materials for, engineers, designers, schedulers, accountants, buyers, inspectors, estimators, supervisors, superintendents, foremen, skilled and unskilled laborers, Subcontractors and all other Persons required for the proper execution of the Work;
(p) provide all construction tools and equipment, other tools, office facilities, telecommunications and other items required to complete the Facility and achieve Facility Final Acceptance;
(q) clear, level and develop the Site and erect and construct the Facility thereon, including all civil works, foundations, structures, buildings and process systems of the Facility;
(r) cart away and dispose of all debris and fill at Contractor’s own expense (except in the case of Hazardous Materials as provided in Article 11.3) in a manner that minimizes all fugitive dust emissions;
(s) transport to the Site, receive, unload and store at the Site, all Equipment and other components of the Work and obtain all necessary customs clearances for all Equipment;
(t) obtain and maintain all Contractor Permits; (u) provide all necessary technical support and prepare all documentation (includ-
ing engineering and design information) required by the Sponsor in order to obtain the Sponsor Permits so that all submissions the Sponsor makes to the relevant Governmental Authorities corroborate that the Facility will comply with all Environmental Standards [when operated at <loads> <levels> above <<insert number>>];
(v) [furnish, within <<insert number>> Days of the Contract Date, a noise map of the Site which is consistent with the noise levels guaranteed in the Performance Guarantees;]
(w) provide all services, personnel and materials <and make available up to a total of <<insert number>> <<insert number>> hour Days of group training for> <to> train the Sponsor’s personnel and agents in the commissioning, testing, operation and maintenance of the Facility as further provided in [the Functional Specifications] [Exhibit 5.1(w)]75 and submit to the Sponsor, within <<insert number>> Days of the Work Commencement Date, the Contractor’s schedule of dates for such training program;76
(x) maintain in good order at the Site all necessary documentation for the performance of the Work, including at least one (1) record copy of the design and engineering documents, project execution plan, construction procedures, quality assurance materials, drawings, specifications, product data, samples, modifications, marked currently to record changes made during construction, all of which will be available to the Sponsor for inspection and use at all times;
(y) [after Facility Provisional Acceptance, but prior to Facility Final Acceptance, if requested by the Sponsor, maintain qualified personnel on site <<twenty-four (24) >> hours per Day to support the Sponsor’s operators regarding operation and maintenance of the Facility;]
(z) provide all Facility documentation, including system and operational manuals, As-Built Drawings and Computer Programs and any documentation set forth in <Exhibit 5.1(z)> <the Functional Specifications> by the <Facility> <Provisional Acceptance> <Final Acceptance> Date;77
(aa) coordinate with other contractors hired by the Sponsor [or <<the Offtaker [etc.]];78
(bb) provide all other items and services that are specified in, or may be [{reasonably}] inferred from, this Contract or which may be reasonably required by <Good> <{Prudent}> <Utility> <{Industry}> Practices;
(cc) [except with respect to a Unit in operation under Article 8.13,] arrange for, and provide at its expense:
(i) all [demineralized] [construction] [potable] water required by the Facility through the Facility Provisional Acceptance Date;
(ii) all water required in connection with the Work or the Facility until the date [of first fire of Unit Two provided that after the first fire of Unit One, it shall not be required to provide or pay for any water (other than demineralized water) consumed by Unit One];
(iii) all electricity (including backfeed electricity to start the Facility) required in connection with the Work or the Facility until the date of first fire [of Unit Two provided that after the first fire of Unit One, it shall not be required to provide or pay for any electricity consumed by Unit One];
(dd) ensure that all Work is completed in accordance with the Baseline Level 3 Schedule and so as to achieve all Performance Guarantees;
(ee) [pay to the Sponsor the Sponsor’s actual and direct [burner tip] cost per <MMBtu> <ton> <gallon> <barrel> for Fuel used by the Facility before the Facility Provisional Acceptance Date in excess of <<insert number>> MMBtu and pay to the Sponsor the Sponsor’s [actual [burner tip] cost for Startup Fuel used by the Facility before the Facility Provisional Acceptance Date in excess of <<insert number>> MMBtu <tonnes> <barrels> gallons;] and pay to the Sponsor <<insert currency amount>> per <<insert number>> <MMBtu>, <tonnes> <gallon> <barrel> for Fuel used by each Unit before the applicable Unit Provisional Acceptance Date in excess of <<insert number>> <MMBtus> <gallons> <tonnes> and pay to the Sponsor <<insert currency amount>> per <MMBtu> <ton> <gallon> <barrel> for Start Up Fuel used by each Unit before the applicable Unit Provisional Acceptance Date in excess of <<insert number>> <tonnes> <gallon> <barrel> <MMBtu>;]79
(ff) [administer and perform all activities under the Vendor Purchase Agreements as the Sponsor’s agent until such time [(if ever)] as the foregoing are assigned to the Contractor;]
(gg) [give the Sponsor at least << insert number >> Days’ advance written notice of the date the Contractor is requesting an Existing Plant Outage to the Sponsor and the Contractor can agree upon a schedule therefor;]
(hh) take all reasonable steps to protect the environment within and near the <Site> <Route> and avoid damage or nuisance to persons or property resulting from pollution, noise or other causes arising out of the performance of the Work;
(ii) {use its commercially reasonable efforts to} maintain good relationships with local communities;
(jj) [coordinate with and observe the instructions of <<insert name>> (the “Dispatcher”) [and the Fuel Transporter and Fuel Supplier] with respect to the synchronization and dispatch of the Units and the Facility;]80
(kk) give the Sponsor <<insert number>> Business Days’ prior written notice before the commencement of any Performance Tests or Provisional Performance Tests;81
(ll) [provide authorized representatives of the <<Thermal Customer, Dispatcher, Fuel Supplier, Fuel Transporter, Wheeling Company and the Offtaker>> with reasonable access to the Facility so that they can assess compliance with the Offtake Agreement [or <<insert agreement title>>, as the case may be];]82
(mm) [attend monthly meetings with the <<Thermal Customer, Dispatcher, Fuel Supplier, Fuel Transporter, Wheeling Company and the Offtaker>> to discuss the progress of construction the Work;]83
(nn) comply with <<insert name>> requirements for work on the <<insert name>> <<substation>>;
(oo) prepare and submit [in <English and> <<insert language>>] for the Sponsor’s approval, at least <<insert number>> Days before the <Unit> <Facility> Commissioning Completion Date [of Unit One], the Contractor’s Commissioning Manual;
(pp) appoint, by written notice to the Sponsor, an executive vice president of the Parent Guarantor who shall be the senior executive with ultimate responsibility for supervising the successful completion of the Work and such senior executive shall remain aware of the Contractor’s obligations and performance and shall be available at reasonable times for consultation with the Sponsor;
(qq) promptly upon the Sponsor’s request execute the Contractor Indemnity and Contractor Priority Agreement in both of the forms set forth in Exhibits 5.1(qq)(A) and 5.1(qq)(B), respectively;
(rr) cause all Major Subcontractors, promptly upon the Sponsor’s request, to enter into a Subcontractor Priority Agreement in the form set forth in Exhibit 5.1(rr);
(ss) cooperate and coordinate with any other contractor of the Sponsor, so as to enable it to conduct its work, and in particular provide it with reasonable access to the <Site> <Route> so as to enable its use of site services and utilities; and
(tt) ensure that all trucks, vehicles, equipment, machinery, or the like provided by the Contractor shall be in safe operating condition and at all times shall be properly protected, maintained and safely operated.
