Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
M
ASTER
EQUIPMENT PURCHASE
CONTRACT
by an
d between
B
urbank Water and Power
as
Owner
and
E
SS TECH, INC.
as
Contractor
fo
r the
E
nergy Storage Demonstration Project
d
ated as of [_____], 2022
ATTACHMENT 1
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Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
TABLE OF CONTENTS
Article 1 DEFINITION OF TERMS ........................................................................................... 1 Section 1.1 Definition of Terms ............................................................................................ 1 Section 1.2 Rules of Interpretation ...................................................................................... 11 Article 2 CONTRACTOR’S OBLIGATIONS ......................................................................... 12 Section 2.1 Contractor’s Performance Obligations .............................................................. 12 Section 2.2 Purchase Orders ................................................................................................ 14 Section 2.3 Cooperation with Owner and Others ................................................................ 15 Section 2.4 Contractor’s Representative; Key Personnel .................................................... 16 Section 2.5 Taxes ................................................................................................................. 16 Section 2.6 Hazardous Materials ......................................................................................... 17 Section 2.7 Security for Performance of the Work ............................................................. 17 Section 2.8 Standards of Performance ................................................................................. 18 Section 2.9 Books and Records; Tax Accounting ............................................................... 19 Section 2.10 Meetings ........................................................................................................... 20 Section 2.11 Rights of Inspection and Review ...................................................................... 20 Article 3 CONTRACT PRICE AND PAYMENT TERMS ..................................................... 21 Section 3.1 Contract Price ................................................................................................... 21 Section 3.2 Price Inclusive .................................................................................................. 21 Section 3.3 Payment of Contract Price ................................................................................ 21 Section 3.4 Payment of Change Orders ............................................................................... 23 Section 3.5 Invoicing and Payments .................................................................................... 23 Section 3.6 Interest .............................................................................................................. 23 Section 3.7 Lien Waivers ..................................................................................................... 23 Article 4 OWNER’S RIGHTS AND OBLIGATIONS ............................................................. 24 Section 4.1 Obligations of Owner ........................................................................................ 24 Section 4.2 Disclosure of Information ................................................................................. 25 Section 4.3 Cooperation Regarding Completion of Work ................................................... 25 Section 4.4 Owner’s Representative .................................................................................... 25 Section 4.5 Owner’s Right to Perform ................................................................................. 26 Section 4.6 Owner’s Right to Suspend Performance ........................................................... 26 Article 5 CHANGE ORDERS .................................................................................................... 26 Section 5.1 Changes ............................................................................................................ 26 Section 5.2 Adjustment Due to Changes ............................................................................. 27 Section 5.3 Change Orders .................................................................................................. 27 Section 5.4 Records; Audit .................................................................................................. 28 Section 5.5 Effect on Performance of Work ........................................................................ 28 ATTACHMENT 1
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Section 5.6 Contractor Change for Convenience ................................................................. 28 Article 7 FORCE MAJEURE .................................................................................................... 38 Section 12.1 Excused Performance ........................................................................................ 38 Section 12.2 Mitigation .......................................................................................................... 39 Section 12.3 Termination ....................................................................................................... 39
Article 8 WARRANTIES ............................................................................................................ 39 Section 8.1 No Liens ................................................................................................................... 39 Section 8.2 Warranty .............................................................................................................. 39 Section 8.3 Remedy for Breach Of Warranty ........................................................................ 40 Section 8.4 Subcontractor and Supplier Warranties ............................................................... 41 Section 8.5 No Implied Warranties ........................................................................................ 41 Article 9 TITLE AND RISK OF LOSS ..................................................................................... 42 Section 9.1 Passage of Title and Risk of Loss ........................................................................ 42 Section 9.2 Risk of Loss Prior To Substantial Completion .................................................... 42 Section 9.3 Risk of Loss After Substantial Completion ......................................................... 42 Article 10 INSURANCE ............................................................................................................. 43 Section 10.1 Contractor’s Insurance ....................................................................................... 43 Section 10.3 Certificates......................................................................................................... 43 Section 10.3 Notice of Cancellation ....................................................................................... 43 Section 10.4 Failure to Pay .................................................................................................... 43 Section 10.5 Nonwaiver ......................................................................................................... 44 Section 10.6 Right to Insure ................................................................................................... 44 Article 11 DEFAULT AND TERMINATION .......................................................................... 44 Section 11.1 Contractor Defaults ........................................................................................... 44 Section 11.2 Owner Defaults ................................................................................................. 45 Section 11.3 Cure of an Event of Default............................................................................... 45 Section 11.4 Event of Default Remedies ................................................................................ 45 Section 11.5 Payments to Contractor Upon Termination ....................................................... 46 Section 11.6 Termination for Convenience by Owner ........................................................... 47 Section 11.7 Survival of Warranty and Warranty Period ....................................................... 48 Section 11.8 Remedies Cumulative ........................................................................................ 48 Article 12 INDEMNIFICATION ............................................................................................... 48 Section 12.1 Indemnification by Contractor ........................................................................... 48 Section 12.2 Indemnification Procedure ................................................................................ 49 ATTACHMENT 1
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Article 13 REPRESENTATIONS AND WARRANTIES ........................................................ 50 Section 13.1 Contractor .......................................................................................................... 50 Section 13.2 Owner ................................................................................................................ 51
Article 14 CONFIDENTIALITY ............................................................................................... 52 Section 14.1 Confidentiality ................................................................................................... 52 Section 14.2 Publicity ............................................................................................................ 53 Article 15 DISPUTE RESOLUTION ........................................................................................ 53 Section 15.1 Dispute Resolution ............................................................................................ 53 Section 15.2 Governing Law and Venue ................................................................................ 53 Section 15.3 Jury Trial Waiver............................................................................................... 53 Section 15.4 Work to Continue .............................................................................................. 54 Article 16 MISCELLANEOUS .................................................................................................. 54 Section 16.1 Intellectual Property Rights; Work Product and Licenses ................................ 54 Section 16.2 Certification and Compliance with NDAA ...................................................... 54 Section 16.3 Notice ............................................................................................................... 56 Section 16.4 Independent Engineer ....................................................................................... 57 Section 16.5 Independent Contractor .................................................................................... 57 Section 16.6 No Rights in Third Parties ................................................................................ 57 Section 16.7 Assignment ....................................................................................................... 57 Section 16.8 Incorporation by Reference .............................................................................. 58 Section 16.9 Entire Agreement ............................................................................................. 58 Section 16.10 Amendments ..................................................................................................... 58 Section 16.11 Severability ....................................................................................................... 58 Section 16.12 Drafting Ambiguities ........................................................................................ 58 Section 16.13 Right of Waiver ................................................................................................ 58 Section 16.14 Waiver of Breach.............................................................................................. 58 Section 16.15 Survival ............................................................................................................ 59 Section 16.16 Effectiveness .................................................................................................... 59 Section 16.17 Further Assurances ........................................................................................... 59 Section 16.18 Conflicting Provisions .................... 59 Section 16.19 Captions ............................................................................................................ 59 Section 16.20 Counterparts ..................................................................................................... 59 Section 16.21 Time of the Essence and Obligation to Act in Good Faith ............................... 59 ATTACHMENT 1
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Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
LIST OF EXHIBITS
Exhibit A Contractor’s Scope of Work and Specifications Exhibit B Project Schedule
Exhibit C Approved Subcontractor and Supplier List
Exhibit D Form of Invoice
Exhibit E Form of Lien Waivers
Exhibit F Wire Transfer Instructions
Exhibit G Sales Tax Exemption Certificate
Exhibit H Insurance Requirements
Exhibit I Form of Progress Reports (Monthly, Weekly, & Plan of the Day) Exhibit J Key Personnel
Exhibit K Owner-Furnished Equipment Delivery Schedule & Requirements Exhibit L Form of Purchase Order
Exhibit M Form of Acceptance Certificate
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MASTER EQUIPMENT PURCHASE AGREEMENT
This MASTER EQUIPMENT PURCHASE CONTRACT (this “Agreement”) is made and entered into as of [______], 2022 (the “Effective Date”) by and between Burbank Water & Power , a California municipal corporation located at 164 Magnolia Blvd., Burbank CA 91502 (“Owner”), and ESS Tech, Inc., a Delaware corporation with offices at 26440 SW Parkway Ave, Wilsonville, OR 97070 (“Contractor”).
WHEREAS, Owner is undertaking to develop and own one or more flow battery energy storage facilities to be located in Los Angeles County, California (the “Project”); and WHEREAS, Contractor has expertise in the manufacture and procurement of equipment required for flow battery energy storage facilities of the type and character of the Facility (defined below), and desires to procure such equipment for Owner for the Project on the terms and subject to the conditions set forth in this Agreement; and WHEREAS, Owner wishes to engage Contractor, and Contractor wishes to be engaged to procure certain equipment for the Facility; and to perform the Work, all as more particularly set forth in this Agreement and Purchase Orders (defined below) issued by Owner, on the terms and subject to the conditions of this Agreement and any Purchase Orders; and WHEREAS, Owner and Contractor will enter into a separate Services Purchase Contract for the warranty and operations and maintenance services to be executed simultaneously with this Agreement (“Services Purchase Contract”).
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE 1
DEFINITION OF TERMS
Section 1.1 Definition of Terms. Whenever used in this Agreement, the following terms shall have the following respective meanings:
“AC” means alternating current.
"Acceptance” with respect to any Equipment shall mean acceptance as defined under the applicable Purchase Order.
“Affiliate” means, with respect to any Person, any other entity directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For the purposes of this definition, control means the power to direct the management or policies directly or indirectly whether through the ownership of voting securities or otherwise. “Agreement” has the meaning set forth in the recitals.
"APPA Deliverables” has the meaning set forth in Section 15.1(a). “Applicable Law” means all laws, treaties, ordinances, statutes, judgments, injunctions, decrees, orders, writs, rules, regulations and interpretations, whether in effect or not as of the Effective Date, of any Governmental Authority having jurisdiction over the actions of Contractor (including any Subcontractors or Suppliers) , the manufacturing site, the Project Site, all or any ATTACHMENT 1
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portion of the Project, the performance of the Work, this Agreement and each other document, instrument and agreement delivered or to be delivered hereunder or in connection herewith. “Bankruptcy Event of Default” means, with respect to a Person:
(a) Such Person makes a general assignment for the benefit of its creditors, is generally unable to pay its debts as they become due or commences or files a voluntary case or petition in bankruptcy or is adjudicated as bankrupt or insolvent, or files any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or future federal, state or other bankruptcy or insolvency statute or law, or seeks, consents to or acquiesces in the appointment of any bankruptcy or insolvency trustee, receiver or liquidator of such Person or of all or any substantial part of its properties; or (b) Any action, case or proceeding is commenced against such Person seeking (i) any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any insolvency laws, or (ii) the appointment, without the consent or acquiescence of such Person, of any trustee, receiver or liquidator of such Person or of all or substantially all of its properties, which proceeding or appointment continues unstayed for a period of sixty (60) days. “Body of the Agreement” has the meaning set forth in Section 17.18. “Business Day” means every day other than a Saturday, Sunday or a day which is a legal holiday in the state in which the Project is located.
“Change” has the meaning set forth in Section 5.1.
“Change in Law” means (i) the enactment, adoption, promulgation, modification or repeal, after the Effective Date, of any Applicable Law or (ii) the imposition of any materially different or additional conditions on the issuance or renewal of any Permit after the Effective Date (notwithstanding the general or customary requirements contained in any Permit at the time of application or issuance to comply with future laws, ordinances, codes, rules, regulations or similar legislation) which, in the case of either (i) or (ii), establishes requirements materially and adversely affecting the supply of equipment or the performance of the Work, provided that a change in any federal, state or local income tax law after the Effective Date shall not be a Change in Law for purposes of this Agreement.
“Change Order” has the meaning set forth in Section 5.3(a). “Claim” has the meaning set forth in Section 12.3(a)(i). “Confidential Information” means any confidential or proprietary information not generally known to the public relating to a Party, the Project, the Work, to Contractor’s proposal regarding the Project, or to other such information otherwise disclosed in writing or any other form by a Party (the “Disclosing Party”) to the other Party (the “ Receiving Party”), or observed or otherwise obtained by the Receiving Party during the course of performing this Agreement. “Confidential Information” shall include, inter alia, all related business plans and strategies, all financing plans, pricing for Contractor’s equipment, financial, payment and business terms of all Project contracts and land agreements and all power production or availability of the Project facilities. “Confidential Information” shall specifically include any information which the Disclosing Party chooses to mark with “ Confidential”, “ Proprietary” or similar words prior to disclosure to the Receiving Party. Notwithstanding the foregoing, “Confidential Information” ATTACHMENT 1
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shall not include any information which: (a) is or lawfully becomes public information through no fault of the Receiving Party; (b) is lawfully in the possession of Receiving Party prior to the receipt of such information from the Disclosing Party; (c) is provided to the Receiving Party by a third party without restriction, provided that such information was not acquired by the third party or any other prior party under an obligation of confidentiality with Contractor having a duty of inquiry to determine whether such information is so subject to an obligation of confidentiality; or (d) is independently developed by the Receiving Party without benefit of Confidential Information received from the Disclosing Party.
“Contract Price” has the meaning set forth in Section 3.1. “Contractor” has the meaning set forth in the recitals. “Contractor Event of Default” has the meaning set forth in Section 12.1. “Contractor Insurance” has the meaning set forth in Section 11.1. “Contractor-Procured Equipment ” means the equipment, materials, goods, parts, and products listed, referenced, or otherwise described in the relevant purchase order and the procuring of those items by Contractor, but does not include the Owner-Furnished Equipment. “Contractor-Procured Equipment Delivery Schedule & Requirements” has the schedule and requirements set forth in Exhibit B hereto.
“Contractor’s Representative” shall have the meaning set forth in Section 2.4. “DC” means direct current.
“Defect” means any non-conformance in the Work resulting from faulty design, workmanship, parts, material or manufacture, including premature wear and failure of such parts, components or systems, and premature wear and failure of adjacent parts, components or systems directly or indirectly caused by such defect or non- conformance. “Disclosing Party” has the meaning set forth in the definition of Confidential Information. “Dispute” has the meaning set forth in Section 16.1.
“Dispute Notice” has the meaning set forth in Section 16.1. “Dollars” and “$” mean currency of the United States of America. “Effective Date” has the meaning set forth in the recitals. “Environmental Laws” means any applicable federal, state, regional or local statutes, regulations, ordinances, codes, permits, orders, or published decisions relating to: (i) air emissions, wastewater discharges, hazardous wastes, hazardous materials storage, use and release to the environment and similar environmental matters; or (ii) the impact of the matters described in the preceding subclause (i) upon human health, human safety or the environment, including the Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended (42 U.S.C. Section 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), the Oil Pollution ATTACHMENT 1
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Act (33 U.S.C. Section 2701 et seq.), the Occupational Safety and Health Act (42 U.S.C. Section 651 et seq.) and the Emergency Planning and Community Right-to-Know Act (42 U.S.C. Section 11001 et seq.).
“Equipment” means all tangible supplies, apparatus, articles, machinery, parts, special maintenance tools, components, appliances and appurtenances thereto required or provided by Contractor that as part of the Work and retained by Owner in accordance with this Agreement.
The term “Equipment” does not include Owner- Furnished Equipment. “Event of Default” means a Contractor Event of Default or an Owner Event of Default, as the case may be.
“Factory Acceptance Test” has the meaning set forth in the applicable Purchase Order. “Facility” means the flow battery energy storage equipment and related systems to be supplied under this Agreement, including the Owner -Furnished Equipment and any other materials necessary to store and transmit the output of the Facility, as described in Exhibit A (as may be updated by the Parties from time to time) and the applicable Purchase Order. “Federal Benefits” means any investment tax credit, production tax credit or loan guarantee available with respect to the Project under the Internal Revenue Code of 1986, as amended, any loan guarantee program of the U.S. Department of Energy, and payments for Specified Energy Property in Lieu of Tax Credits under Section 1603 of the American Recovery and Reinvestment Act of 2009 or any successor provisions.
“Force Majeure Event” means a cause reasonably beyond the control of the Party affected, which with the exercise of reasonable diligence could not reasonably be prevented, avoided or removed by such affected Party, which causes such Party to be materially delayed in performance of, or unable to perform, its obligations under this Agreement (other than any obligation for the payment of money). Such causes may include, to the extent they meet the foregoing criteria, acts of God which damage necessary facilities, sudden actions of the elements such as floods, earthquakes, hurricanes, named storms, or tornados; epidemics and pandemics; war s; terrorism; riots; labor strikes or work stoppages (other than those strikes or work stoppages directed specifically at such Party or any of its Subcontractors); unexpected acts or failures to act by utilities (other than Owner acting under this Agreement); quarantine or travel restrictions enforced by a governmental authority or agency having jurisdiction due to pandemic; or supply chain shortages, industry- wide labor strikes, embargoes, or work stoppages, and delays arisi ng or resulting from COVID -19. A Force Majeure Event shall not include any condition or state of being or weather conditions that should reasonably be expected in the region in which the Jobsite is located based on seasonal averages and patterns (but not hurricanes, named storms or tornadoes), all of which Contractor acknowledges it has familiarized itself. A Force Majeure Event also shall not include supply chain shortages, industry-wide labor strikes, embargoes, or work stoppages, and delays arising or resulting from COVID-19 to the extent that such events have occurred prior to the Effective Date or can be reasonably anticipated before the Effective Date. Any delays arising from Contractor’s failure to take reasonable precautions against COVID-19 shall not be deemed a Force Majeure Event. “Government Approval” means all authorizations, consents, approvals, licenses, leases, rulings, permits, tariffs, rates, certifications, exemptions, filings, variances, orders, judgments, decrees, publications, notices to, declarations of or with or registration by or with any Governmental Authority relating to the Work.
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“Governmental Authority” means any federal, state, local or other governmental, judicial, public or statutory instrumentality, tribunal, agency, authority, body or entity in the United States or any political subdivision thereof, having legal jurisdiction over the matter or Person in question, but does not include any nation, location or jurisdiction outside of the United States. “Good Industry Practice” means the exercise of all professional engineering principles and manufacturing practices generally accepted for products and services to be delivered to electrical utilities in California, including the degree of skill, di ligence and prudence, and those practices, methods, standards of safety and performance, which would reasonably and ordinarily be expected to be used and exercised by a personnel on facilities of the type and size similar to the Project. “Grant Agreement” has the meaning given in Section 15.1(a). “Hazardous Material” means any substance, chemical, waste or material that is or becomes regulated under Applicable Law because of its toxicity, infectiousness, radioactivity, explosiveness, ignitability, corrosiveness or reactivity, including asbestos, urea formaldehyde, polychlorinated biphenyls, nuclear fuel or materials, radioactive materials, explosives, known carcinogens, petroleum products and byproducts, and any substance, chemical, waste or material regulated by any Environmental Laws. “Hazardous Materials” includes any pollutant, contaminant, hazardous material, substance or waste, or other material or substance, including crude oil, crude oil flow lines, crude oil storage tank batteries, crude oil wells, demolition debris, gases, liquids, oils, oil fueled equipment, other storage tanks (either above or below ground), salt disposal wells and solid waste, or other byproducts or breakdown products therefrom, related to the construction, operation or demolition of oil wells, present or remaining in the air, soil or ground water, no matter how mixed with or diluted by any other pollutant, contaminant, hazardous material, substance or waste, or other material or substance.
“Indemnified Party” has the meaning given in Section 13.2(a)(i). “Indemnifying Party” has the meaning given in Section 13.2(a)(i). "Indemnitee” means with respect to Contractor or Owner, as applicable, such Party or its Affiliates and the respective officers, agents, employees, and permitted successors and assigns of each of the foregoing.
“Independent Engineer” means the independent engineer as selected by Owner and consented to by Contractor; provided, that such consent shall not be unreasonably withheld. “Intellectual Property Rights” means all licenses, trade secrets, copyrights, know-how, patents, trademarks, proprietary information or other intellectual property rights of any kind necessary for the design, construction, ownership, use, operation, maintenance, repair, alteration, commissioning, de-commissioning, removal and disposal of the Project. “Interconnection Utility” means the owner or operator of electrical utility distribution system that Facility will be connected to for purposes of charging or discharging energy. “Jobsite” means those areas of the Project Site designated by Owner for the performance of the Work and such additional areas as may, from time to time, be designated in writing by Owner for Contractor’s use hereunder.
“Key Personnel” means the natural persons named in Exhibit J.
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“Liability Cap” has the meaning set forth in Section 6.1. “License Agreement” has the meaning given in Section 15.1(a). “Management Dispute” has the meaning set forth in Section 16.1. “Management Dispute Notice Date” has the meaning set forth in Section 16.1. “Owner” has the meaning set forth in the recitals.
“Owner Contractors” means those Persons, other than Contractor, with whom Owner contracts or subcontracts to perform work or provide equipment in connection with the Project and shall specifically include the manufacturers of the Owner-Furnished Equipment. "Owner Data” shall have the meaning set forth in Section 17.1. “Owner Event of Default” has the meaning set forth in Section 12. “Owner- Furnished Equipment” means the equipment that is listed on Exhibit A, Attachment 2 and is to be supplied by the Owner -Furnished Equipment Suppliers and installed or otherwise incorporated into the Project in accordance with the Service Purchase Contract. “Owner-Furnished Equipment Delivery Schedule” means the delivery schedule set forth in Exhibit K.
“Owner- Furnished Equipment Suppliers” means the original equipment manufacturers responsible for the manufacture, supply and delivery of the Owner-Furnished Equipment. "Owner Insurance” has the meaning set forth in Section 11.2. “Party” or “Parties” means each or both, as the case may be of the parties to this Agreement. “Permits” means any valid waiver, exemption, variance, franchise, permit, authorization, consent, license or similar order of or from any Governmental Authority applicable to the performance of the Work or the construction, ownership, operation or maintenance of the Project. "Performance Test” shall mean any required performance test as set forth in the applicable Purchase Order.
“Person” means any individual, corporation, partnership, limited liability company, association, joint stock company, trust, unincorporated organization, joint venture, government or political subdivision or agency thereof.
“Prime Rate” means the interest rate published in The Wall Street Journal as the “prime rate” from time to time (or, if more than one rate is published, the arithmetic mean of such rates), in either case determined as of the date the obligation to pay interest arises. “Progress Payment Schedule” means the progress payment schedule set forth in each Purchase Order.
“Project” has the meaning set forth in the recitals.
“Project Schedule” means the detailed schedule substantially in the form of Exhibit B showing the progress and sequencing of the Work for each Purchase Order including the critical path analysis, actual start and finish dates and expected completion dates for any ATTACHMENT 1
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milestones which shall be delivered by Contractor to Owner within ten (10) days after execution of the relevant Purchase Order and shall be subject to approval by Owner, such approval not to be unreasonably withheld, conditioned or delayed. Such initial issuance of the Project Schedule shall become the baseline schedule against which the monthly schedule updates are made and compared against. At a minimum, the Project Schedule shall be updated on a monthly basis based on actual progress to date, with more frequent updates per Owner request under circumstances where more frequently updated Project Schedule information is necessary to facilitate Project planning.
The Project Schedule will be provided in a format that is capable of being imported and exported from Primavera.
“Project Site” means the land in Los Angeles County, on which the Project will be located as more particularly described in the applicable Purchase Order. “Purchase Order” means orders issued by Owner specifying either the specific Contractor- Procured Equipment the Contractor is to procure, manufacture or receive, and/or the specific Owner-Furnished Equipment the Contractor is to receive, and/or the specific Work the Contractor is to perform, the form of which shall be in compliance with the form in Exhibit L. “Receiving Party” has the meaning set forth in the definition of Confidential Information. “Retainage” has the meaning set forth in Section 3.3(b). “SCADA System” means the supervisory control and data acquisition and output prediction system for the Facility described in the Scope of Work. “Scope of Work” means all of the requirements for the procurement or manufacture of the Contractor-Procured Equipment for the Facility as set forth generally in Exhibit A and further described on Purchase Orders executed by the Parties, and the performance of the Work hereunder. "Services Purchase Contract” has the meaning set forth in the recitals. “State Benefits” means any investment tax credit, production tax credit or other tax credit or applicable loan guarantee available with respect to the Project. “Subcontractor” means any Person, other than a Supplier, performing Work on behalf of Contractor at the Project S ite related to the performance of any obligations undertaken by Contractor under this Agreement. For the avoidance of doubt, “Subcontractor” includes any such Person, regardless of tier.
“Supplier” means any Person supplying materials or equipment to Contractor or to any Subcontractor for the Work, including items fabricated to a special design, but who does not perform labor at the Project Site.
“Taxes” means taxes, customs duties, fees, imposts, value-added taxes, sales or use taxes and similar governmental charges of any kind.
“Warranty” has the meaning set forth in the Services Agreement. “Warranty Period” has the meaning set forth in the Services Agreement . “Work” means procuring or manufacturing the systems and items described generally in the Scope of Work, and specified further on Purchase Orders executed by the Parties, to be performed by Contractor, all to be completed in accordance with the Scope of Work and each Purchase Order; ATTACHMENT 1
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the term “Work” specifically does not include (i) any contractual rights or authorizations necessary for the production, delivery, and sale of electrical power produced by the Project, or (ii) any contractual rights or permits for which Contractor is not responsible pursuant to this Agreement.
Section 1.2 Rules of Interpretation. Unless otherwise required by the context in which any term appears:
(a) the recitals are expressly made a part of this Agreement; (b) capitalized terms used in this Agreement other than for grammatical purposes shall have the meanings specified in this Article 1 or as otherwise defined in this Agreement; (c) the singular shall include the plural and vice versa, and the masculine, feminine and neutral gender include all genders;
(d) the words “herein”, “hereof”, “hereto” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular section or subsection of this Agreement;
(e) references to, and the definition of, any agreement, document or instrument (including this Agreement) shall mean a reference to such agreement, document or instrument as the same may be amended, modified, supplemented or replaced from time to time; (f) all references to an “Article”, “Section”, or “Exhibit” are to an a rticle or section hereof or to an exhibit attached hereto;
(g) the words “include”, “includes” and “including” mean include, includes and including “without limitation” and “without limitation by specification”; (h) the word “day” (as distinguished from a “Business Day”) means a calendar day (including Saturdays, Sundays and holidays) and the word “month” means a calendar month; and
(i) the table of contents and article and section headings and other captions are for the purpose of reference only and do not limit or affect the meaning of the terms and provisions hereof.
ARTICLE 2
CONTRACTOR’S OBLIGATIONS
Section 2.1 Contractor’s Performance Obligations. Commencing on the Effective Date, Contractor agrees to supply the Work specified in each Purchase Order executed by the Parties necessary or appropriate to obtain, procure, provide for, furnish, commission and test the Contractor- Procured Equipment specified in each Purchase Order in accordance with this Agreement. In addition, Contractor agrees to receive the Owner-Furnished Equipment specified in each Purchase Order in accordance with this Agreement. Contractor acknowledges Owner’s reliance on Contractor’s expertise and agrees to provide Work that is reasonably inferable from the Work specified in each Purchase Order or this Agreement (but not specifically described). Without limiting the generality of the foregoing, Contractor shall:
(a) procure and deliver Delivered at Place (Incoterms 2010) to the Project Site identified in the applicable Purchase Order all of the components, machinery, and equipment for ATTACHMENT 1
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the Contractor-Procured Equipment specified in each Purchase Order and required for the Work (other than the Owner- Furnished Equipment in accordance with the Contractor -Procured Equipment Delivery Schedule & Requirements);
(b) upon issuance of a Purchase Order related to the receipt of the Owner-Furnished Equipment at the Project Site, unload, inspect, store (including using commercially reasonable efforts to store if unloading or receipt is interrupted by a Force Majeure Event), and inventory the Owner-Furnished Equipment at the Project Site in accordance with the Scope of Work, in accordance with the Purchase Order, in accordance with Exhibit K, and in accordance with manufacturers’ requirements as provided to Contractor within a reasonable period prior to unloading; (c) upon issuance of a Purchase Order related to the receipt of the Owner- Furnished Equipment to the Project Site, protect the Owner-Furnished Equipment from damage and keep them clean during the receiving, storage, and installation process; (d) commission and test the Equipment as set forth in the applicable Purchase Order;
(e) perform training services to Owner with respect to the efficient and proper operation of the Equipment, including s tart up, operation, maintenance and repair as set forth in the Applicable Purchase Order (with any additional training requested by Owner to be performed at the rates set forth in Exhibit I);
(f) deliver to Owner a complete set of operations and maintenance manuals and spare parts lists (as applicable) for all Contract or-Procured Equipment. The spare parts list (as applicable) will include a recommended list of initial spare parts from the associated equipment suppliers including pricing; and
(g) comply with all Applicable Laws.
Section 2.2 Purchase Orders.
(a) Contractor acknowledges that Owner may not issue any Purchase Order until Owner is satisfied that certain conditions necessary for successful completion of the Work specified in the applicable Purchase Order have been satisfied. Upon Contractor’s receipt of a Purchase Order executed by both Parties, Contractor shall commence performance of the Work specified in the Purchase Order. Owner shall have no commitment to compensate Contractor for the performance of the Work under this Agreement or related to the Project, and Contractor shall have no commitment to perform the Work under this Agreement or related to the Project, until there is a fully executed Purchase Order for the Work.
(b) Each Purchase Order will include the following: (i) a reference to this Agreement; (ii) the date the Purchase Order is issued and, if applicable, the period of time during which the Work will be provided; (iii) a description of the Work to be provided; (iv) the amounts payable and the Progress Payment Schedule for the Work; and (v) any additional provisions applicable to the Work. No Purchase Order will become effective until it has been executed by an authorized representative of the Owner and the Contractor.
Section 2.3 Cooperation with Owner and Others. Contractor shall cooperate as reasonably needed or requested by Owner with Owner and Owner-Furnished Equipment Suppliers, Interconnection Utility, Governmental Authorities, Owner Contractors, Owner’s ATTACHMENT 1
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representatives and Owner’s counterparties working at the Project Site to coordinate Contractor’s performance of the Work with such other Persons.
Section 2.4 Subcontractors and Suppliers. Contractor may locate and procure the services of such Subcontractors and Suppliers from the approved contractor list in Exhibit C (which may be amended from time to time as mutually agreed by Owner and Contractor) that in Contractor’s reasonable judgment, and consistent with Good Industry Practice, may be necessary to complete the Work; provided, however, that any such contracting shall not relieve Contractor of any of its obligations, duties or responsibilities hereunder and that agreements entered into by Contractor with such Subcontractors and Suppliers shall be assignable in accordance with Section 2.7. All Subcontractors performing Work on the Jobsite shall be required to maintain insurance in such amounts and forms as are required under Exhibit H. Contractor may replace Subcontractors and Suppliers as it deems necessary, with approved contractors listed on Exhibit C . Contractor shall make reasonable efforts to bind its Subcontractors to the dispute resolution clause included in Article 16. Contractor shall be solely responsible for the performance of the Work and for paying each Subcontractor and Supplier amounts due to such Subcontractor and Supplier and nothing contained herein shall obligate Owner to pay any Subcontractor or Supplier for any of the Work performed by such Subcontractor or Supplier. No Subcontractor or Supplier is intended to be, nor shall any such Subcontractor or Supplier be deemed to be, a third party beneficiary of this Agreement.
Section 2.4 Contractor’s Representative; Key Personnel. Within ten (10) days following the Effective Date, Contractor shall designate, in a written notice to Owner, a project manager who will have full responsibility for managing the performance of the Work and interfacing with Owner and Owner-Furnished Equipment Suppliers to coordinate the activities at the Project Site (“Contractor’s Representative”). The individual so designated shall be subject to Owner’s approval, which approval shall not be unreasonably withheld, conditioned or delayed. The Contractor’s Representative shall act as the single point of contact in all matters relating to this Agreement on behalf of Contractor, provided, however, that the Contractor’s Representative shall not have the authority to amend this Agreement. Contractor shall not remove Contractor’s Representative or Key Personnel from the Project without Owner’s prior consent, which consent will not be unreasonably withheld, conditioned or delayed. At Owner’s request Contractor shall remove any Key Personnel from the Project, and if need be, designate a new Contractor’s Representative, which new Contractor’s Representative shall be subject to Owner’s approval, which approval shall not be unreasonably withheld, conditioned or delayed. The Key Personnel shall at all times hold the positions and be dedicated to the performance of the duties set forth in Exhibit J.
Contractor’s Representative and Key Personnel shall all be capable of performing their obligations under this Agreement in accordance with Good Industry Practice.
Section 2.5 Taxes. The Parties agree that the Contract Price, as stated in the Purchase Order, includes all Taxes, including all sales and use taxes (other than for materials and services that are tax exempt under Applicable Law as further described in Exhibit G), and including any customs and duties . Contractor shall be responsible for all Taxes, including any taxes on transportation fees, freight, packing costs and wages , and all other costs associated with the performance of the Work and any other of its duties and responsibilities under this Agreement (unless otherwise stated in this Agreement).
Section 2.6 Hazardous Materials. Contractor shall not manufacture, use, store or dispose at, or deliver to, the Project Site any Hazardous Materials except to the extent necessary to ATTACHMENT 1
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perform its obligations under this Agreement and any such manufacture, delivery, use, storage or disposal shall be in compliance with all Applicable Law. Contractor shall provide data sheets, warning labels or other documentation covering all Hazardous Materials to be delivered to the Project Site prior to or at such time as Contractor causes any such substances to enter the Project Site. If Contractor or any Subcontractor or Supplier (a) brought or caused to be brought, or created or caused to be created, Hazardous Materials on the Project Site, (b) improperly handled, treated or stored Hazardous Materials on the Project Site, or (c) through negligence or willful misconduct (including as to the handling, treatment, or storage of Hazardous Materials on the P roject Site) caused the release of, any Hazardous Materials on the Project Site, then Contractor shall be responsible to remove or to remediate all such Hazardous Materials in accordance with Applicable Law. The foregoing obligations shall not be applicable to Hazardous Materials which are a part of or are introduced to the Project Site by Owner- Furnished Equipment unless Contractor knew or should have known of the existence of such Hazardous Materials and acted with negligence or willful misconduct in respect of such Hazardous Materials. Contractor shall maintain an updated file of all safety data sheets for all Hazardous Materials used in connection with performance of the Work at or near the Project Site or at any construction area related to the Project an
d shall deliver an update of such file to Owner no later than five (5) Business Days after the end of each month during the performance of the Work. During the performance of the Work, Contractor shall maintain an accurate record and current inventory of all Hazardous Materials used in performance of the Work and safety data sheet at or near the Project Site or at any construction area related to the Project, which record shall identify quantities, location of storage, use and final disposition of such Hazardous Materials. Contractor shall implement and administer a Hazardous Materials handling program for all of its employees and all Subcontractors present at the Project Site which shall include development of guidelines and training with respect to the proper handling, use and disposal of Hazardous Materials and the development, implementation and enforcement of procedures for notification of Owner and appropriate Governmental Authorities about, and clean-up of spills and other emissions of Hazardous Materials, which such program shall be provided to Owner for review not later than forty-five (45) days prior to any Work at the Project Site. Provided that Contractor has fully complied with all of the obligations set forth in this Section 2.6, Owner shall take title to al l Hazardous Material incorporated into the Work and shall assume all risk with respect thereto upon Acceptance as defined in the relevant Purchase Order , except as regards to Contractor’s Warranty obligations. Contractor shall provide to Owner copies of all waste disposal manifests, if any, related to the disposal of any Hazardous Materials. If during performance of the Work Contractor or its Subcontractors encounter any subsurface Hazardous Materials at the Jobs ite the presence of which was not previously disclosed to Contractor, Contractor shall immediately cease performance of Work to the extent necessary to avoid disturbing such Hazardous Materials or exacerbating any existing disturbance and promptly notify Owner of such encounter, initially by telephone and then in writing. Owner shall be responsible for dealing with any such Hazardous Materials in accordance with Applicable Law, and to the extent performance of the Work is delayed due to the presence of such Hazardous Materials (despite Contractor’s reasonable mitigation efforts, which shall not require unreasonable exposure to such Hazardous Materials), Contractor shall be entitled to a Change Order in accordance with the provisions of Article 5.
Section 2.7 Security for Performance of the Work. All subcontracts and purchase orders entered into by Contractor relating to Contractor’s performance obligations hereunder shall be assignable to Owner and to any successor contractor in the event of Contractor’s removal from the Project, without recourse against Contractor for payments made by Contractor prior to the ATTACHMENT 1
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date of assignment and for actions of Owner, its successors or Owner’s contractors; provided that Contractor shall continue to be liable to release any applicable retainage being held by Contractor with respect to any assigned subcontract or purchase order. Owner or assignee of Owner will not be liable for Contractor's obligations under any subcontract or purchase order unless and until (and then only to the extent that) Owner or such assignee of Owner has assumed performance of such obligations following (and as a consequence of) Owner's or such assignee’s exercise of Owner’s rights and remedies hereunder. In addition, except as otherwise expressly agreed by Owner in writing, Contractor shall include in all subcontracts and purchase orders with Subcontractors and Suppliers contract provisions enabling the assignability and assumption of prime contracts to and by Owner as required in this Agreement.
Section 2.8 Standards of Performance. Contractor shall perform and prosecute all Work in accordance with the terms and conditions of this Agreement, including all requirements of the Scope of Work, using reasonable care and in compliance with all Applicable Law and Permits (provided that Owner has delivered written notice to Contractor of such Permits procured or maintained by Owner) required for the completion of the Work, using methods and equipment that are accepted as Good Industry Practices. Contractor shall procure all equipment, materials and supplies (other than Owner-Furnished Equipment) necessary to complete the Work; and all costs of such items are included within the Contract Price. Contractor shall obtain and pay for all necessary Contractor Permits and bonds or other form of surety necessary to support transportation needs or requirements; and provide and perform all necessary work to move Contractor -Procured Equipment and such Owner -Furnished Equipment across underground utilities located on the Project Site or property adjacent to the Project Site and protect such utilities from damage as a result of any construction activities.
Section 2.9 Books and Records; Tax Accounting. Contractor shall keep such full and detailed books, records and accounts as may be necessary for proper financial management and tax compliance of Contractor in accordance with its internal record retention policies and Applicable Law, but no less than four (4) years. In addition, within a reasonable period of time after a request therefor, Contractor shall provide Owner with any information regarding quantities, cost, and descriptions of the Work that Owner reasonably deems necessary in connection with the preparation of tax returns, property tax filings, other regulatory compliance filings, in connection with general or regulatory accounting, and as may be necessary to allocate costs and expenses to submit applications for Federal Benefits or State Benefits or to meet other legal or accounting requirements.
Section 2.10 Schedule; Meetings.
(a) If Contractor’s performance of the Work is not in compliance with the milestones set forth in any Purchase Order, then Contractor shall prepare and submit to Owner a recovery plan that sets forth a reasonable plan to mitigate the delay and recover the original schedule. Owner shall have the right to submit comments to the plan within five (5) days of submission, which Contractor shall consider in good faith. Following Owner’s review and approval of the plan, Contractor shall implement the plan at its sole cost and expense. (b) As applicable, Contractor’s Representative or, in the absence of the representative, an appointed designee shall plan and attend the “Plan of the Day” meetings to be conducted at the beginning of each working day at the Jobsite (or towards the end of the preceding working day) at which the activities to be conducted by Contractor and any Owner Contractors ATTACHMENT 1
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(including Owner-Furnished Equipment Suppliers) during that working day are reviewed and coordinated. Contractor’s Representative or designee shall provide a Plan of the Day report at the beginning of each day that Work is scheduled to be performed. “ Plan of the Day Reports” shall include activities schedule for the day of, day prior, and day after the day of the report as well as completion percentages of major Work. Contractor’s Representative or its designee shall also attend weekly and monthly progress meetings at the Jobs ite conducted by Owner, which may also be attended by Owner Contractors and other invitees of Owner. Contractor shall also conduct weekly safety meetings with its Subcontractors and Suppliers on the Jobsite to discuss possible safety issues and reminders.
Section 2.11 Rights of Inspection and Review.
(a) Owner and its representatives shall have the right, but not the obligation, to observe and inspect the Work, any item of equipment supplied by Contractor (including any such equipment under fabrication), material, workmanship or other portion of Work, and to observe all checks and tests of the Work. Upon reasonable notice to Contractor by Owner, Contractor shall arrange for access by such Persons to the Work (including equipment under fabrication or subject to testing that is to be supplied by Contractor) that is at a location other than the Project Site.
Inspections by Owner at locations other than the Project Site will be at Owner’s expense. Owner and its respective representatives shall have the right to review all documents that are deliverable by Contractor hereunder. Contractor will, at no charge to Owner, make reasonable office space available to Owner in any onsite temporary office trailer set up by Contractor. Prior to factory acceptance testing of any equipment identified in a Purchase Order, Contractor shall provide at least 10 (10) business days’ notice to Contractor prior to such testing; provided, further that upon Owner’s request, Contractor shall reasonably coordinate with Owner to schedule a time to allow for the Owner and/or the Independent Engineer to be present at the factory acceptance testing. (b) Owner shall also have the right to have any portion of the Work uncovered or dismantled for inspection or testing if there is a reasonable basis for a suspected Defect despite Contractor’s having covered or assembled such Work in accordance with the sequence and timing established during the daily meeting or with the notice requirements regarding deviations specified in Section 2.16(b). Any cost and Project Schedule impact of such uncovering and recovering (or dismantling and re-assembly or reconstruction) shall be borne by Contractor unless no defect is present, in which case Contractor shall be entitled to a Change under Section 5.1(c). (c) Contractor shall promptly correct any Defect in the Work discovered at any time prior to expiration of the Warranty Period.
ARTICLE 3
CONTRACT PRICE AND PAYMENT TERMS
Section 3.1 Contract Price. The price for the performance of all of the Work under a Purchase Order shall be the Price specified in the applicable Purchase Order (such amount, as adjusted pursuant to the provisions of this Agreement and the Purchase Order, as applicable , being referred to herein as the “Contract Price”).
Section 3.2 Price Inclusive. The Contract Price includes payment for all equipment (other than the Owner-Furnished Equipment) and materials relating to Contractor’s performance of its obligations under this Agreement and the Work (including all Work, labor, manufacturing, materials and equipment provided by Subcontractors and Suppliers), and includes sales or use taxes ATTACHMENT 1
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(except as regards to tax exempt materials) and all other applicable federal, state, and local taxes or licenses arising out of Contractor’s performance of the Work, excluding the Owner-Furnished Equipment. Notwithstanding the foregoing, Contractor shall not be liable for (i) any Owner related real estate taxes or ownership taxes and (ii) any federal, state or local income or gross receipts, taxes or duties, fees or royalties with respect to Owner’s income or revenue from the Project.
Section 3.3 Payment of Contract Price.
(a) Progress Payment Schedule. Contractor shall be paid the Contract Price in accordance with the Progress Payment Schedule. Where indicated in the Progress Payment Schedule that payment requires achievement of a milestone, then payment shall not be due until such milestone is achieved. Nothing in this Section 3.3(a) is intended to limit Owner’s obligations to Contractor under Section 12.5 and Section 12.6 for the payment of the reasonable and documented demobilization costs of Contractor, including cancellation charges from Subcontractors and Suppliers, storage costs for uninstalled equipment and materials. (b) Retainage and Withholding. There shall be withheld as retainage from each payment due and payable to Contractor hereunder ten percent (10%) of the amount of such payment (the “Retainage”). In addition, Owner may, in its sole discretion, withhold amounts proportionate to the alleged defective performance from payments that may be due to Contractor upon the occurrence and continuation of any of the following events: (a) Contractor has Defaulted or (b) Contractor has failed to make prompt payment to any Subcontrac tor for material or labor used to perform Contractor’s obligations hereunder, or any claim has been made by any Subcontractor to such effect, including a lien claim.
(c) Release of Retainage. Retainage, net of the amounts Owner is entitled to withhold or setoff pursuant to the preceding sentence, shall be released to Contractor on Acceptance as defined in the relevant Purchase Order.
Section 3.4 Payment of Change Orders. Each Change Order shall include a Progress Payment Schedule or an alternative schedule for the payments due by Owner to Contractor thereunder. Contractor shall invoice Owner for any payments that are due pursuant to the outstanding Change Orders to Owner with the next invoice submitted to Owner pursuant to Section
3.5. If a Change Order results in a reduction in the cost of the Work, the Contract Price shall be reduced by the amount of such reduction and the Parties shall agree on an appropriate modification to the Progress Payment Schedule to effect such reduction in the Contract Price.
Section 3.5 Invoicing and Payments.
(a) Contractor shall submit an invoice to Owner for payment of the Work set forth in each Purchase Order, which invoice shall aggregate (i) all amounts theretofore earned by Contractor, if any, pursuant to the terms of this Agreement and not previously invoiced and (ii) any amounts that are due to Contractor in respect of Change Orders pursuant to Section 3.4. Each such invoice shall include evidence satisfactory to Owner of the completion of the items on the Progress Payment Schedule claimed by Contractor. Final Payment (as defined below) shall not be released until lien waivers are obtained as set forth in Section 3.7. Each such invoice shall contain a progress report with respect to the items on the Progress Payment Schedule and the Project Schedule and be in the form of and contain the information required by Exhibit D. Owner shall be responsible for paying or causing to be paid all invoiced amounts that are not in dispute within thirty (30) day of the Owner’s receipt of a properly documented invoice. All payments shall ATTACHMENT 1
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be made by wire transfer to the account listed in Exhibit F or to such other account as may be designated by Contractor to Owner in an invoice.
(b) As used herein, a “properly documented invoice” shall mean an invoice that:
(i) is prepared substantially with the form of Exhibit D; (ii) includes, in the case of a request for reimbursement of sales or use taxes, an invoice or such other reasonable accounting records and if requested by Owner, associated bills from Subcontractors and Suppliers, indicating the nature and cost of the property purchased or the Work provided and the sales or use taxes thereon; and (iii) includes waivers and lien releases as required under Section 3.7.
Section 3.6 Interest. All amounts due under this Agreement (including all disputed amounts ultimately determined to be due following the resolution of a Dispute pursuant to Article 16 or otherwise) shall bear interest from the date that such amount first became due and payable under the terms of this Agreement until the date that it is paid at the lesser of (a) the Prime Rate plus one percent (1%) or (b) the maximum rate permitted by Applicable Law.
Section 3.7 Lien Waivers.
(a) Lien Waivers; Final Payment. Final payment of the Contract Price under a Purchase Order (“Final Payment”) will not be released to Contractor until and at such time as Contractor has delivered to Owner lien waiver(s) from all of its Subcontractors and Suppliers (in the form attached as Exhibit E). Contractor covenants and agrees that it will pay in accordance with the applicable contract or purchase order all Subcontractors and Suppliers for the Work applicable to the invoices associated with such lien waiver(s).
(b) Indemnification. Contractor shall indemnify, defend and hold harmless Owner from and against any claim, demand or cause of action arising from or related to a notice of lien, claim for lien, lien or suit to foreclose a lien filed, given, made or maintained by Contractor or any Subcontractor or Supplier on the Work or any part thereof or interest therein, except with respect to those arising out of the failure of Owner to perform its payment obligations hereunder.
ARTICLE 4
OWNER’S RIGHTS AND OBLIGATIONS
Section 4.1 Obligations of Owner. Owner, at its sole expense, hereby agrees to perform, or cause to be performed, all of the following, subject to the terms and conditions contained in the applicable Purchase Order and this Agreement and in accordance with Applicable Law:
(a) pay the Contract Price in accordance with the provisions of Section 3.3; (b) subject to Section 2.2, provide to Contractor access to the Project Site on and after the Effective Date if necessary to enable Contractor to perform the Work; (c) cooperate and coordinate with Contractor and the Subcontractors in coordinating the work of Owner’s Contractors who may be working at or near the Project Site with the Work being performed by Contractor and the Subcontractors; (d) procure the Owner- Furnished Equipment and cause the Owner- Furnished Equipment to be delivered to its intended area on the Project Site or, if requested by Contractor, to a staging area on the Project Site, in a timely manner and, in accordance with the Owner-Furnished Equipment Delivery Schedule, as coordinated with Contractor so that Contractor may offload the ATTACHMENT 1
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same;
(e) cause any needed service for phone and data lines required for the SCADA System or similarly required facility control system to be available at the Project Site (as identified in the Scope of Work);
(f) cause the construction of the Interconnection Facilities (as applicable) and arrange for the connection of the Interconnection Facilities to the Interconnection Point by the Interconnection Utility;
(g) cause the Interconnection Utility to provide electric pow er at the Interconnection Point for use in connection with commissioning the Project and to accept electricity generated by the Project; and
(h) coordinate any relations with the owners of any adjacent properties to minimize interference with the performance of the Work.
Section 4.2 Disclosure of Information. Owner shall provide Contractor with all necessary non-proprietary technical information, data and documents in Owner’s possession which Contractor reasonably requests, and which pertains to the performance by Contractor of its obligations hereunder.
Section 4.4 Owner’s Representative. Within ten (10) days following the Effective Date, Owner shall designate, in a written notice to Contractor, an Owner’s Representative who will have full responsibility to interface with the Contractor’s Representative and its respective representatives and delegates. Owner’s Representative shall act as the single point of contact in all matters relating to this Agreement on behalf of Owner. Owner may, from time to time, designate a new Owner’s Representative with notice to Contractor.
ARTICLE 5
CHANGE ORDERS
Section 5.1 Changes. The following shall be a “Change” under this Agreement:
(a) Any addition to, deletion from or modification of the Contractor-Furnished Equipment or any of the Work that is agreed upon by the Parties or that is directed by Owner pursuant to Section 5.3(c);
(b) Any Force Majeure Event to the extent such Force Majeure Event demonstrably materially adversely affects a Party’s ability to perform in accordance with this Agreement;
(c) Delay or other demonstrable adverse impact on Contractor’s activities under this Agreement resulting from acts or omissions causing material interference or delay by Owner or Owner Contractors (unless and to the extent such delay or adverse impact is also the result of acts of Contractor or Subcontractors), including any delay in delivery of Owner-Furnished Equipment; provided (and Contractor’s right to relief hereunder is expressly subject to the condition) that Contractor in each such case shall have provided written notice to Owner, within seven (7) Business Days after becoming aware of such material interference or delay, describing the particulars of such delay or interference and the probable impact (or a reasonable estimate thereof, based on available information) on the performance of Contractor’s obligations hereunder; ATTACHMENT 1
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(d) Delay or other demonstrable material adverse impact on Contractor’s activities under this Agreement resulting from the presence of artifacts or pre-existing subsurface Hazardous Materials at the Jobs ite under the conditions for which Contractor is entitled to a Change Order; or
(e) A Change in Law; provided, that Contractor’s right to relief for any Change in Law shall be limited to an equitable adjustment to the Project Schedule and there shall be no adjustment to the Contract Price or other additional compensation for such Change in Law unless the Change in Law applies to the Jobsite; and provided, further, that with respect to changes in the status of applicable restrictions under Applicable Law due to Covid-19 or its variants, Contractor shall have taken reasonable steps consistent with those taken by similarly situated contractors in the relevant jurisdiction to mitigate the impact of such restrictions on operations.
Section 5.2 Adjustment Due to Changes. To the extent that a Change demonstrably affects Contractor’s ability to perform the Work, the time or cost (including reduction thereof) of doing so or any other obligation under this Agreement, Contractor (or Owner, to the extent the net impact is a reduction in cost or schedule) shall be entitled to an equitable adjustment as appropriate to the Contract Price, the Project Schedule or such other parts of this Agreement as may be affected by such Change; provided, however, that Contractor shall use commercially reasonable efforts, including altering the sequence of Work otherwise contemplated in the Project Schedule, altering work hours, or other means reasonably available, in order to mitigate the adverse impact of any Change. Contractor shall submit a proposed plan of mitigation to Owner within five (5) Business Days of the occurrence of the Change. An adjustment to the Contract Price, the Project Schedule or such other parts of this Agreement as may be affected by such Change shall only be granted to the extent that such adverse effects cannot reasonably be mitigated. The burden of proving entitlement to relief shall be on the Party requesting the Change Order. Relief for particular Changes may also be conditioned or limited as provided in Section 5.1.
Section 5.3 Change Orders .
(a) General. In connection with any Change or proposed Change, Contractor shall submit to Owner a written proposal for dealing with the impact of the Change (such proposal, as agreed and fully executed by the Parties except as provided in Section 5.3(c), a “Change Order”) identifying in sufficient detail all effects on the provisions of this Agreement that Contractor contends result or would result from the Change or proposed Change, including the effects of existing Purchase Orders, with Owner having the right to request additional detail as reasonably needed to assess any asserted Change. All Change Orders must be submitted by Contractor within ten (10) days of the conclusion of the circumstance giving rise to such asserted Change together with all supporting documentation for such Change Order . All Change Orders shall be agreed to by both Parties, subject to Owner’s right to direct Changes as provided in Section 5.3(c). Except to the extent immediate action may be required by an emergency threatening life or property, Contractor shall not take action to effect or respond to a Change except pursuant to a written Change Order; provided that upon responding to such emergencies, Contractor shall provide notice within one day of such emergency or as soon as reasonably practicable. (b) By Agreement. For Changes for which an adjustment to the Contract Price (or other compensation), the Project Schedule, or to other affected provisions of the Agreement is agreed to by the Parties, or is required to be made under Section 5.3(a), Owner shall execute the Change Order authorizing such adjustments. Each Change Order shall show all agreed-upon ATTACHMENT 1
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adjustments to the Contract Price or other payments to be made to Contractor and any adjustments to the Progress Payment Schedule or such other parts of this Agreement as may be affected by such Change, including any adjustments necessary to existing Purchase Orders. (c) Owner Directive. Where the Parties are unable to agree on a fixed price under Section 5.3(b) above, Owner may direct Contractor to implement a Change generally consistent with the scope of the Work, as identified in the specific Purchase Order(s) related to the Work, in which event Contractor shall proceed with such Change and shall be reimbursed for incremental labor, equipment and materials provided by Contractor (or any Subcontractor) at Contractor’s (or such Subcontractor’s) actual direct documented costs.
Section 5.4 Records; Audit. Contractor and Subcontractors shall maintain complete and accurate records of the costs incurred due to the Change and Owner shall have the right to audit all such records pertaining to Work performed on a cost-reimbursable basis. Contractor shall submit weekly detailed summaries of costs sustained due to Changes implemented pursuant to this Section 5.4.
Section 5.5 Effect on Performance of Work. Nothing in this Article 5 shall be construed to relieve Contractor of any responsibility for the Work pending agreement on the terms of any Change Order (other than the portion of the Work affected by the Change Order).
Section 5.6 Contractor Change for Convenience. Contractor shall obtain Owner’s written approval for any changes initiated by Contractor for convenience.
ARTICLE 6
TESTING AND ACCEPTANCE
Section 6.1 Testing.
(a) Owner shall have the right to attend any Factory Acceptance Test and receive the Factory Acceptance Test report for the Equipment. Contractor shall provide Owner at least ten (10) Business Days prior written notice of the date on which Contractor intends to commence the Factory Acceptance Test. Contractor shall be permitted to ship Equipment for delivery only if it has successfully passed the Factory Acceptance Test.
(b) Contractor shall provide Owner at least ten (10) Business Days prior written notice of the date on which Contractor intends to commence the initial Performance Test; provided, however, Contractor shall not commence a Performance Test unless and until the Equipment is capable of safe and prudent operation in accordance with the requirements of this Agreement and Good Industry Practice , and provided further, however, that any subsequent Performance Test shall occur in reas onable coordination with Owner. Owner may have its representatives observe each Performance Test and monitor measurements taken. Contractor shall perform the Performance Tests as set forth in the Purchase Order , including with respect to any schedule for testing.
(c) Contractor shall perform the Performance Tests, and any rerun thereof required hereunder as a result of the unsatisfactory results of such Performance Tests. For the avoidance of doubt, each of the respective Performance Tests may be satisfied on an independent basis from the other Performance Tests, and shall not be required to be rerun once satisfied.
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(d) Contractor shall promptly commence and complete corrective measures to remedy any Defects in the Equipment discovered or that occurred during the P erformance Tests (including reengineering, repairs or replacement of any defective parts, including removal of all defective components necessary to the performance of such obligations, at Contractor’s sole cost and expense).
Section 6.2 Acceptance and Acceptance Date.
(a) Contractor shall achieve Acceptance in accordance with the requirements of this Agreement and the applicable Purchase Order.
(b) F
ollowing a determination by Contractor that Acceptance has been achieved, Contractor shall deliver an Acceptance Certificate in the form of Exhibit M to Owner identifying the date on which Acceptance occurred. The Acceptance Certificate shall be accompanied by appropriate supporting documentation. If Owner disputes Contractor’s determination that Acceptance has been achieved, Owner shall provide a written notice to Contractor identifying all of the deficiencies in the requirements for the achievement of Acceptance within five (5) Business Days of receipt of the Acceptance Certificate. Owner’s notice to Contractor shall provide details regarding the deficiencies identified and any proposed corrective actions. Contractor shall take any actions that it deems necessary to correct the deficiencies identified by Owner, at Contractor’s sole cost and expense, and shall re-deliver the Acceptance Certificate once any such corrective actions are taken. Owner shall then have five (5) Business Days after each subsequent Acceptance Certificate submittal by Contractor to advise Contractor, in writing, of any remaining deficiencies to be corrected by Contractor. In the event that Owner and Contractor are unable to agree regarding any such matters, Contractor shall proceed with further Work as directed by Owner under protest, reserving the right to submit a claim for the additional Work required by Owner, and any Dispute regarding such claim shall be resolved in accordance with the dispute resolution procedures of this Agreement. If Owner agrees that Acceptance has occurred, Owner shall s ignify its acceptance by countersigning the Acceptance Certificate where indicated. If Owner does not provide written notice disputing Contractor’s determination that Acceptance has been achieved within the time periods specified hereinabove, such Acceptance Certificate shall be deemed to be accepted by Owner. The effective date of Acceptance shall be the date on which Contractor originally submitted the Acceptance Certificate.
ART
ICLE 7
LIMITATION OF LIABILITY
Section 7.1 Limitation of Liability. Except as provided in the last sentence of this paragraph, Contractor’s aggregate liability arising out of or relating to a Purchase Order shall in no event exceed the total Price under such Purchase Order (each, a “Liability Cap”). The foregoing Liability Cap shall not apply to nor include any liability arising out of Contractor’s fraud or willful misconduct, losses covered by insurance (including required payments of deductibles), Contractor’s indemnity obligations pursuant to Section 3.7(b) and Article 13.
Section 7.2 No Liability for Consequential Damages. Except to the extent indemnity payments required to be paid by one Party to the other hereunder include elements of such losses or damages, and except for liability arising out of a Party’s gross negligence, fraud or willful misconduct, in no event shall Owner or Contractor be liable to the other for any special, ATTACHMENT 1
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exemplary, indirect or consequential damages, i ncluding lost profits, cost of capital, or loss of goodwill regardless of (a) whether such damages were foreseeable, (b) whether or not the Party was advised of the possibility of such damages , and (c) the legal or equitable theory (contract, tort or otherwise) upon which the claim is based.
ARTICLE 8
FORCE MAJEURE
Section 8.1 Excused Performance. If Owner or Contractor is rendered wholly or partially unable to perform its obligations (other than any payment obligations) under this Agreement because of the occurrence of a Force Majeure Event, that Party shall be excused from whatever obligations are affected by the Force Majeure Event to the extent so affected, provided that:
(a) the affected Party gives the other Party prompt oral notification, followed by written notice, describing the particulars of the Force Majeure Event known to such affected Party, including an estimation of its expected duration and probable impact on the performance of such Party’s obligations hereunder;
(b) the notice described in subparagraph (a) above shall be given promptly after the occurrence of the Force Majeure Event, and in no event shall the written notice be given more than five (5) days after the affected Party becomes aware of such occurrence unless the Force Majeure Event prevents the giving of such notice;
(c) the suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event; (d) the affected Party shall use all commercially reasonable efforts to minimize the delay, and shall continue to perform its obligations hereunder to the extent that performance is not excused;
(e) when the affected Party is able to resume performance of the affected obligations under this Agreement, that Party shall give the other Party written notice to that effect and the affected Party promptly shall resume performance of the affected obligations under this Agreement; and
(f) any such Force Majeure Event shall only excuse performance of the affected obligation to the extent and so long as the conditions caused by the Force Majeure Event exist and directly impact the critical path of the Project Schedule.
Section 8.2 Mitigation. The Party affected by the occurrence of a Force Majeure Event or any matter constituting a Change hereunder shall exercise commercially reasonable efforts to eliminate, reduce, mitigate or limit the effects of such Force Majeure Event or Change. The Party affected by the occurrence of a Force Majeure Event shall submit a proposed plan of mitigation to the other Party within five (5) Business Days of the written notice required by Section 8.1(a) above. In the case of a Force Majeure Event, the Party affected by the occurrence of a Force Majeure Event shall continue to perform any portion of the Work not affected by such Force Majeure Event and upon termination of such Force Majeure Event shall continue and complete the Work in accordance with the provisions of this Agreement.
Section 8.3 Termination. In the event a Force Majeure Event occurs and ATTACHMENT 1
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notwithstanding Section 8.2, substantially prevents performance of a Purchase Order for one hundred and eighty (180) consecutive days or two hundred (200) days in aggregate, either Party shall have the right to terminate the applicable Purchase Order, in which event such termination shall treated as termination under Section 12.6.
ARTICLE 9
WARRANTIES
Section 9.1 No Liens. Contractor warrants that, upon receipt of payments as provided in the Purchase Order, Contractor shall render the Contractor-Procured Equipment free and clear of any and all liens, claims, security interests or other encumbrances asserted or created by Contractor or any Subcontractor or Supplier relating to the Work.
Section 9.2 Warranty.
(a) Contractor warrants the Work (as provided by Contractor, Subcontractors, and Suppliers) under the Warranty set forth in the Services Purchase Agreement for the duration of the Warranty Period as follows:
(i) a ll materials and Equipment furnished under this Agreement by Contractor will be new and otherwise in conformity with the specifications in this Agreement and with any documentation incorporate by express reference in this Agreement, and Equipment and the Facility will be in conformity with this Agreement, and with any documentation incorporated by reference in this Agreement and shall comply with all Applicable Laws, including all health and safety standards; and
(ii) the handling , disposal and storage installation of any and all material and Equipment and Owner-Furnished Equipment shall be in accordance with the manufacturers’ requirements and the Scope of Work.
All Work that does not conform to the Warranty shall be considered faulty or defective and Contractor agrees to correct such Work under the Warranty set forth in the Services Purchase Agreement.
Section 9.3 Subcontractor and Supplier Warranties. Contractor shall cause all Subcontractor and Supplier warranties to be assignable to Owner or Owner’s designee; and upon completion of all Warranty obligations of Contractor hereunder, Contractor shall assign to Owner or its designee any Subcontractor and Supplier warranties still in effect (other than for Owner- Furnished Equipment). Contractor shall be responsible for enforcing all warranties, and the existence, scope or coverage of such warranties shall not lessen, reduce or alter Contractor’s Warranty obligations hereunder. Notwithstanding the foregoing, Owner shall have the right to participate with Contractor in deciding optimum resolutions for warranty issues and shall have the right, but not the obligation, to deal directly with manufacturers and vendors on warranty issues.
For the Equipment identified in Exhibit A, Contractor shall obtain for Owner, from the respective manufacturers, warranties in accordance with Exhibit A (the existence, scope or coverage of such additional warranties shall not lessen, reduce or alter Contractor’s Warranty obligations hereunder).
Section 9.4 No Implied Warranties. THE WARRANTIES SET FORTH IN THIS
AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL WARRANTIES, EXPRESSED OR
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PURPOSE, CUSTOM, USAGE OR OTHERWISE. THERE ARE NO OTHER WARRANTIES,
AGREEMENTS OR UNDERSTANDINGS THAT EXTEND BEYOND THOSE SET FORTH
IN THIS AGREEMENT WITH RESPECT TO THE PROJECT, WORK, EQUIPMENT OR OWNER-FURNISHED EQUIPMENT. NO OTHER WARRANTY, ORAL OR WRITTEN,
WHICH MIGHT HAVE BEEN GIVEN BY AN EMPLOYEE, AGENT OR REPRESENTATIVE OF CONTRACTOR IS AUTHORIZED BY CONTRACTOR. NO WARRANTY PROVIDED
BY CONTRACTOR IN THIS AGREEMENT SHALL APPLY TO, ANY BREACH OF WARRANTY TO THE EXTENT CAUSED BY ANY OF THE FOLLOWING:
(a) ORDINARY WEAR AND TEAR, IN THE O PERATION OF THE
FACILITY;
(b) ACCIDENT, MISUSE, ABUSE OR NEGLIGENCE BY INDIVIDUAL OR
ENTITIES OTHER THAN THE CONTRACTOR, ITS SUBCONTRACTORS AND SUPPLIERS;
(c) ALTERATIONS TO OR REPAIRS OF THE FACILITY OR THE
EQUIPMENT CARRIED OUT BY PERSONS NOT AUTHORIZED IN WRITING BY
CONTRACTOR (EXCEPT FOR REPAIRS PERFORMED BY OWNER OR THIRD PARTIES
DUE TO NON-PERFORMANCE BY CONTRACTOR AND EXCEPT FOR OPERATION AND MAINTENANCE PERFORMANCE STRICTLY IN ACCORDANCE WITH O&M MANUAL); (d) ANY FAILURE BY OWNER OR OWNER CONTRACTORS TO
MAINTAIN THE FACILITY OR THE EQUIPMENT IN ACCORDANCE WITH THE APPLICABLE MANUFACTURER’S REQUIREMENTS PROVIDED BY CONTRACTOR; (e) THE OPERATION OF THE FACILITY OR THE EQUIPMENT BY
OWNER OR ITS REPRESENTATIVES, AGENTS OR CONTRACTORS IN EXCESS OF OR
OUTSIDE OF THE OPERATING PARAMETERS OR SPECIFICATIONS SET FORTH IN THE SCOPE OF WORK;
(f) A FORCE MAJEURE EVENT.
ARTICLE 10
TITLE AND RISK OF LOSS
Section 10.1 Passage of Title and Risk of Loss. Title to the Work and the risk of loss or any part thereof shall pass to Owner upon the date said materials, Equipment, tools or supplies are delivered to the Project Site ; provided, that upon termination for default of Contractor hereof (unless, pursuant to the terms of any subcontract or purchase order relating thereto, title is still held by the Subcontractor, in which case Contractor shall assign and transfer to Owner all of its right, title and interest in and to any such subcontract or purchase order). Title to the Owner- Furnished Equipment shall at all times remain with Owner.
ARTICLE 11
INSURANCE
Section 11.1 Contractor’s Insurance. From the date that is at least sixty (60) days prior to the performance of any Services on the Project Site through the completion of the Warranty Period (except as otherwise specified below), Contractor shall procure and maintain, or require to be ATTACHMENT 1
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procured and maintained, the insurance set forth in Exhibit H-1 and identified therein as Contractor’s responsibility with one or more duly licensed insurance carrier(s) reasonably approved by Owner (such insurance hereinafter referred to as “Contractor Insurance”). Contractor shall be responsible for the payment of all deductible amounts with respect to the Contractor Insurance, unless the loss or damage is caused in whole or in part by the fault or negligence of Owner, in which case a portion of the deductible will be paid by Owner based on the degree of Owner’s fault or negligence contributing to the loss or damage. The structure of the coverage shall be Contractor’s option, so long as the total amount of insurance meets the requirements specified in this Section 11.1. The Contractor Insurance shall:
(a) specify Owner as additional insured, except with respect to any workers’ compensation and to Professional Errors and Omissions, if applicable; (b) provide that action or inaction of Contractor or any third party shall not invalidate the interests of Owner in the insurance;
(c) contain a severability of interests or cross-liability endorsement providing that inasmuch as the policies are written to cover more than one insured, all terms and conditions, insuring agreements and endorsements, with the exception of limits of liability, shall operate in the same manner as if there were a separate policy covering each insured; (d) provide that, in the event of any loss payment under such policy, the insurer shall waive any rights of subrogation against Owner and shall waive any setoff or counterclaim or any other deduction whether by attachment or otherwise as applicable to any of these parties; (e) provide that the insurance is primary without right of contribution from any other insurance which might otherwise be available to the Parties; and (f) provide that Owner shall have the right, but not any obligation, to pay premiums if Contractor shall fail to do so.
Section 11.2 Owner’s Insurance. The Owner shall obtain and, during the progress of the Work, maintain in force the policies of insurance described in Exhibit H-2, with the Contractor as named insured.
Section 11.3 Certificates. Certificates. Each of the Parties shall, not later tha n three (3) days before the Notice to Proceed Date, deliver to the other Party certificates of insurance evidencing the coverages for which Contractor is responsible as specified in Section 13.1 and for which Owner is responsible as specified in Section 13.2.
Section 11.4 Notice of Cancellation. All policies of insurance to be secured and maintained hereunder shall provide, by endorsement, that each Party and any additional insured shall be provided thirty (30) days prior written notice of any cancellations (ten (10) days for nonpayment) or material policy changes that would result in non-compliance with this Article 11, and that no such cancellation or change shall be effective without such notice. In the event insurance cannot be written to comply with this requirement, the applicable Party shall provide such notice to the other Party subject to these same terms and conditions and use commercially reasonable efforts to procure prompt replacement coverage.
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of a Party hereunder against the other Party.
Section 11.6 Right to Insure. Should a Party fail to provide or maintain any of the insurance coverage required under this 3, the other Party shall have the right to provide or maintain such coverage at the expense of the failing Party, either by direct charge or setoff.
ARTICLE 12
DEFAULT AND TERMINATION
Section 12.1 Contractor Defaults. The occurrence of any one or more of the following events shall constitute an event of default by Contractor hereunder (a “Contractor Event of Default”):
(a) Contractor fails, for any reason, other than as a result of the failure of Owner to make payments of amounts to Contractor under this Agreement that are not the subject of a good faith dispute, to make prompt payments required to be made by Contractor to any Subcontractor or Supplier of amounts not in dispute, which failure continues for thirty (30) days after receipt of written notice from such Subcontractor or Supplier of such non-payment; (b) Any representation or warranty of Contractor proves to be false or misleading when made unless (i) the fact, circumstance or condition that is the subject of such representation or warranty is made true within thirty (30) days after Owner has given notice thereof to Contractor; provided, however, that if the fact, circumstance or condition that is the subject of such representation or warranty can be corrected but not within such thirty (30) day period and if Contractor within such period of thirty (30) days commences, and thereafter diligently proceeds, to correct the fact, circumstance or condition that is the subject of such representation or warranty, such period shall be extended for such further period as shall be necessary for Contractor to diligently correct the same within sixty (60) days unless a longer period is agreed to by the non - breaching Party , and (ii) such cure removes any adverse effect on Owner of such fact, circumstance or condition being otherwise than as first represented, or such fact, circumstance or condition being otherwise than as first represented demonstrably does not adversely affect Owner; (c) A Bankruptcy Event of Default occurs with respect to Contractor; (d) Contractor fails to maintain the Contractor Insurance coverages required by Article 11 and Contractor fails to remedy such breach within ten (10) Business Days after the date on which Contractor first receives a notice from Owner with respect thereto; (e) Contractor abandons the Work for a period of fifteen (15) consecutive days or thirty (30) non-consecutive days or fails to make commercially reasonable progress of the Work in accordance with the Project Schedule, and fails to resume the Work within ten (10) days following the date of receipt of written notification thereof by Owner; (f) Contractor fails, for any reason, to make payments when due that are required to be made by Contractor to Owner that are not otherwise disputed in good faith, which failure continues for twenty (20) days after notice from Owner to Contractor of such nonpayment; or (g) Except as otherwise expressly provided for in this Section 12.1, Contractor is in breach of any material obligation under this Agreement and such breach continues for thirty (30) days after receipt of written notice from Owner.
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events shall constitute an event of default by Owner hereunder (an “Owner Event of Default”):
(a) Owner fails to pay to Contractor any required payment which is not in dispute, and such failure continues for twenty (20) days after receipt of written notice of such failure; (b) Any representation or warranty of Owner proves to be false or materially misleading when made, unless (i) the fact, circumstance or condition that is the subject of such representation or warranty is made true within thirty (30) days after Contractor has given notice thereof to Owner; provided, however, that if the fact, circumstance or condition that is the subject of such representation or warranty can be corrected but not within such thirty (30) day period and if Owner within such period of thirty (30) days commences, and thereafter diligently proceeds, to correct the fact, circumstance or condition that is the subject of such representation or warranty, such period shall be extended for such further period as shall be necessary for Owner to diligently correct the same, and (ii) such cure removes any adverse effect on Contractor of such fact, circumstance or condition being otherwise than as first represented, or such fact, circumstance or condition being otherwise than as first represented demonstrably does not adversely affect Contractor.
(c) A Bankruptcy Event of Default occurs with respect to Owner; (d) Owner fails to maintain the Owner Insurance coverages required by Article 11 and Owner fails to remedy such breach within ten (10) Business Days after the date on which Owner first receives a notice from Contractor with respect thereto; or (e) Except as otherwise expressly provided for in this Section 12.2, Owner is in breach of any material obligation under this Agreement and such failure continues for thirty (30) days after receipt of written notice from Contractor.
Section 12.3 Cure of an Event of Default. An Event of Default shall be deemed cured only if such default shall be remedied within the relevant time period, if any, specified in Section
12.1 and Section 12.2 after written notice has been sent to the defaulting Party from the non- defaulting Party specifying the default and demanding that the same be remedied (provided that failure of a Party to provide such notice shall not be deemed a waiver of such default).
Section 12.4 Event of Default Remedies.
(a) Termination. Upon the occurrence of an Event of Default, the non-defaulting Party, without prejudice to any remedy provided herein or otherwise available at law or in equity, may, by written notice to the defaulting Party, terminate the affected Purchase Order, or in its sole discretion, this Agreement. The termination of this Agreement shall be without prejudice to any other rights or remedies which a Party may have against the other, and no termination of this Agreement shall constitute a waiver, release or estoppel by either Party of any right, action or cause of action it may have against the other.
(b) Right of Contractor to Stop the Work and Terminate. In addition to the right to terminate pursuant to Section 12.4(a), in the event of a payment default by Owner, Contractor shall have the right to immediately stop performance of the Work until Contractor has been paid all undisputed amounts due it, in which case Contractor shall be entitled to a Change Order for any increased costs and for any required extension to the completion of the Contractor -Procured Equipment Delivery Schedule & Requirements attributable to the stoppage of the Work.
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while Dispute resolution proceedings, under this Agreement or pursuant to judicial action, are pending regarding the reasons for or validity of Contractor’s exercise of its right to terminate for payment default by Owner; provided Owner continues to make payments of undisputed amounts during such Dispute.
(c) Termination by Owner. In the event of a termination by Owner pursuant to Section 12.4(a), Owner shall not be required to make any further payment to Contractor unless and until all claims between the Parties are settled or resolved. Upon such termination, Owner has the right to require Contractor to assign such subcontracts and purchase orders and contracts with Suppliers entered into by Contractor in connection with the Work as Owner may designate, subject to Owner assuming the obligations of Contractor under such subcontracts and purchase orders.
(d) Additional Owner’s Remedies. Upon the occurrence or happening of a Contractor Event of Default, Owner, in addition to all other rights and remedies provided in other provisions of this Agreement, may (i) retake possession of the Jobsite, (ii) with or without terminating this Agreement, take possession of all construction materials and finish the Work by whatever means, manner or methods Owner may deem reasonable, (iii) with or without terminating the applicable Purchase Order or this Agreement, assume the rights and obligations of Contractor, and require performance by Subcontractors and Suppliers, under any or all of subcontracts and purchase orders covering the unperformed parts of the Work whether pursuant to assignment or pursuant to the third party beneficiary rights of Owner under such subcontracts and purchase orders, or (iv) exercise, enforce, pursue and realize on any and all other rights and remedies available to Owner under Applicable Law or under this Agreement and all other agreements, documents and instruments executed in connection with this Agreement. In the event Owner, upon the happening or occurrence of a Contractor Event of Default, elects to take possession of the Project Site and all construction materials and finish the Work, Owner, at its election, may assume the rights, powers, remedies, duties, responsibilities and obligations of Contractor under all of its s ubcontracts and purchase orders covering the unperformed portions of the Work and continue the performance under any such assumed subcontracts and purchase orders in order to finish the unperformed portion of the Work.
Section 12.5 Payments to Contractor Upon Termination. In the event that a Purchase Order or this Agreement is terminated by Contractor pursuant to Section 12 .4, then as payment in full for such termination, Owner shall pay to Contractor not later than thirty (30) Business Days following receipt of Contractor’s invoice, an amount equal to the sum of:
(a) an amount equal to the value of all Work performed by Contractor up to the time of such termination, including in connection with any milestones that Contractor has completed or partially completed, reduced by any amounts previously paid by Owner; plus (b) actual, direct and substantiated costs reasonably incurred for, and without duplication: (i) Equipment and materials ordered for the Work that have been delivered to Contractor or for which Contractor is legally liable to pay or accept delivery (title to all of which shall pass to Owner upon payment for same); (ii) reasonable payments made by Contractor to its Subcontractors and Suppliers as required upon the termination of any subcontracts, including reasonable cancellation charges; (iii) protecting the Work and leaving the Jobsite in a clean and safe condition as directed by Owner; and (iv) demobilization from the Project Site; all as reduced by any amounts previously paid by Owner, and provided that Contractor has taken reasonable ATTACHMENT 1
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steps to mitigate such costs to the extent reasonably practicable. Upon making such payment, Owner shall take title to all Work and Equipment. Any such Work performed by or on behalf of Owner shall be excluded from any Warranties given hereunder. Simultaneously with making the payment required hereunder, Owner shall have the right to take an assignment of all subcontracts and purchase orders entered into by Contractor in connection with the Work, subject to Owner assuming the obligations of Contractor under such subcontracts and purchase orders, as further provided in Section 2.10.
Section 12.6 Termination for Convenience by Owner. Owner may, in its sole discretion, terminate, in whole or in part, a Purchase Order, this Agreement and the Work at any time.
Owner shall exercise such right of termination by giving written notice of termination to Contractor forty-five (45) days in advance of such termination. In such event:
(a) If requested by Owner, Contractor shall withdraw from the Project Site, shall assign to Owner, to the extent assignable, without future recourse to Contractor, such of Contractor’s subcontracts entered into in connection with the Work as Owner may request, shall transfer to Owner, to the extent transferable, any Contractor Permits obtained for the Work, and shall remove such materials, equipment, tools and instruments used and any debris or waste materials generated by Contractor in the performance of the Work as Owner may direct, and Contractor shall deliver to Owner all designs, drawings, and Project Site facilities for which Owner has paid for upon termination.
(b) Contractor will retain all payments made pursuant to the Progress Payment Schedule. Within thirty (30) days following receipt from Contractor of an invoice with supporting documentation in reasonable detail, Owner will pay to Contractor an amount equal to the sum of:
(i) an amount equal to the value of all Work performed by Contractor up to the time of such termination, including in connection with any milestones that Contractor has completed or partially completed, reduced by any amounts previously paid by Owner; plus (ii) actual, direct and substantiated costs reasonably incurred for, and without duplication: (A) Equipment and materials ordered for the Work that have been delivered to Contractor or for which Contractor is legally liable to pay or accept delivery (title to all of which shall pass to Owner upon payment for same); (B) reasonable payments made by Contractor to its Subcontractors and Suppliers as required upon the termination of any subcontracts, including reasonable cancellation charges; (C) protecting the Work and leaving the Jobsite in a clean and safe condition as directed by Owner; and (D) demobilization from the Project Site; all as reduced by any amounts previously paid by Owner, and provided that Contractor has taken reasonable steps to mitigate such costs to the extent reasonably practicable. (c) C ontractor shall execute all documents and take all other reasonable steps requested by Owner or its assignee which may be required or reasonably necessary to vest in Owner or its assignee all rights, set offs, benefits and titles necessary to such assumption by Owner or its assignee of such obligations.
Section 12.7 Survival of Warranty and Warranty Period. In the event of a termination of a Purchase Order or this Agreement pursuant to this Article 12, the Warranty and the Warranty Period with respect to parts of Work completed prior to such termination and paid for shall survive and continue in full force and effect in accordance with the terms of the applicable Purchase Order and this Agreement.
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Section 12.8 Remedies Cumulative. All remedies given to Contractor or Owner for default under this Agreement by the other Party, including those provided by law or equity, shall be cumulative, and the exercise of any one or more of these remedies shall not preclude the exercise of any other available remedy. No waiver by either Contractor or Owner of any violation or breach by the other Party of any of the terms, provisions or covenants contained in this Agreement shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions or covenants contained in this Agreement. Failure of Contractor or Owner to declare any default immediately upon the happening or occurrence thereof, or any delay by Contractor or Owner in taking any action in connection therewith, shall not waive such default, but Contractor or Owner, as the case may be, shall have the right to declare any such default at any time and take such action as might be lawful or authorized hereunder, either in law or in equity. Forbearance by Contractor or Owner to enforce one or more of the remedies provided in this Agreement upon an Event of Default by the other Party shall not be deemed or construed to constitute waiver of any other violation or default. No provision of th is Agreement shall be deemed to have been waived by Contractor or Owner unless such waiver is in writing and signed by Contractor or Owner, as the case may be.
ARTICLE 13
INDEMNIFICATION
Section 13.1 Mutual Indemnification.
(a) General Indemnity. Each Party shall indemnify, defend and hold harmless the other Party and its Indemnitees from and against any and all suits, actions, legal or administrative proceedings, claims, demands, costs (including reasonable, documented attorneys’ fees) and expenses of any nature arising out of or in connection with, in whole or in part, the negligence or willful misconduct of a Party or any of its Subcontractors or Suppliers or their respective employees or agents, including claims arising out of death or bodily injury to any person or physical damage to the Project, other property of such Party or the property of third parties; provided the foregoing shall not require indemnification for claims to the extent determined by a court having jurisdiction, on a comparative fault basis, to have been caused by the negligence or willful misconduct of the applicable Party’s Indemnitees. The indemnification provisions of a Party under this Section 15.1(a) shall not be limited in any way by any limitations on the amount or type of damages, compensation or benefits payable by or for the benefit of a Party or any of its Subcontractors or Suppliers under any workers’ compensation acts, occupational disease acts, disability benefits acts or any other employee benefit acts. (b) Patent and Copyright Indemnity. Contractor shall indemnify, defend, and hold each Owner Indemnitee free and harmless from all losses, claims, liens, demands and causes of action of any kind and costs thereof, including judgments, penalties, interest, court costs and legal fees incurred by or assessed against any Owner Indemnitee on account of any claim of infringement of any patent, copyrighted or un-copyrighted work, secret process, trade secret, unpatented invention or other intellectual property right arising from Contractor’s performance or Work under this Agreement. In all such cases where the continued use of any item for the purpose intended is forbidden by any court of competent jurisdiction, Contractor shall at its option either (i) procure for Owner, or reimburse Owner for procuring, the right to continue using the infringing item, (ii) modify the infringing item so that it becomes non-infringing, or (iii) replace the infringing item with a non-infringing item; provided that in no such case shall Contractor take any action which demonstrably adversely affects Owner’s continued use and enjoyment of the Project shall occur ATTACHMENT 1
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without the prior written consent of Owner, such consent not to be unreasonably withheld, conditioned, or delayed and provided, further, that Owner acknowledges that Contractor’s election of remedy shall be at its sole option.
(c) Notwithstanding the foregoing, the foregoing indemnification obligations will not apply to the extent claims or liabilities are caused by the negligence (which includes, without limitation, Owner’s misuse of Equipment or alteration to the Equipment without obtaining Contractor’s written consent) or willful misconduct of Owner. Further, the foregoi ng indemnification obligations shall not apply to the extent there has been any alteration to the Equipment without the consent of Contractor, or there has been any misuse of Equipment.
Section 13.2 Indemnification Procedure.
(a) Notice and Participation.
(i) If any Party entitled to indemnification hereunder (the “Indemnified Party”) intends to seek indemnification under this Article 13 from any other Party (the “Indemnifying Party”), the Indemnified Party shall give the Indemnifying Party notice of the underlying claim, action, lawsuits, demands, judgments, or liability (the “ Claim”) upon the receipt of actual knowledge or information by the Indemnified Party of any possible Claim or of the commencement of such Claim, which notice shall in no event be later than the lesser of (i) fifteen (15) Business Days prior to the last day for responding to such Claim or (ii) one half of the period allowed for responding to such Claim. The Indemnifying Party shall have no liability under this Article 13 for any Claim for which such notice is not provided to the extent that the failure to give such notice materially impairs the ability of the Indemnifying Party to respond to or to defend the Claim.
(ii) The Indemnifying Party shall have the right to assume the defense of any Claim, at its sole cost and expense, with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided, however, that if the defendants in any such proceeding include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the Indemnifying Party, the Indemnified Party shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such Claim on behalf of such Indemnified Party. (iii) Should any Indemnified Party be entitled to indemnification under this Article 13 as a result of a Claim by a third party, and should the Indemnifying Party fail to assume the defense of such Claim, the Indemnified Party may, at the expense of the Indemnifying Party, contest or, with or without the prior consent of the Indemnifying Party, settle such Claim. (iv) Except to the extent expressly provided herein, no Indemnified Party shall settle any Claim with respect to which it has sought or is entitled to seek indemnification pursuant to this Article 13 unless it has obtained the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld.
(v) Except to the extent expressly provided herein, no Indemnifying Party shall settle any Claim with respect to which it may be liable to provide indemnification pursuant to this Article 13 without the prior written consent of the Indemnified Party; provided, however, that if the Indemnifying Party has reached a bona fide settlement agreement with the plaintiff(s) in any such proceeding, which settlement includes a full release of the Indemnified Party for any and all ATTACHMENT 1
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obligations liabilities with respect to such Claim, and the Indemnified Party does not consent to such settlement agreement, then the dollar amount specified in the settlement agreement, plus the Indemnified Party’s legal fees and other costs related to the defense of the Claim prior to the date of such settlement agreement, shall act as an absolute maximum limit on the indemnification obligation of the Indemnifying Party with respect to the Claim, or portion thereof, that is the subject of such settlement agreement.
(b) Assertion of Claims. No Claim of any kind shall be asserted against either Party or such Party’s officers, agents, employees, successors or assigns, whether arising out of contract, tort (including negligence), strict liability or any other cause of action, unless it is filed in a court of competent jurisdiction within the applicable statute of limitations period for such Claim. (c) No Release of Insurers. The provisions of this Article 13 shall not be deemed or construed to release any insurer from its obligation to pay any insurance proceeds in accordance with the terms and conditions of valid and collectible insurance policies. (d) Survival of Obligation. The duty to indemnify under this Article 13 shall continue in full force and effect notwithstanding the expiration or termination of this Agreement with respect to any indemnifiable cost arising out of an event or condition which occurred prior to such termination.
ARTICLE 14
REPRESENTATIONS AND WARRANTIES
Section 14.1 Contractor. Contractor hereby represents and warrants to Owner as of the Effective Date and as of the effective date of each Purchase Order that:
(a) Due Incorporation and Good Standing. It is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware and is authorized to do business and in good standing in all jurisdictions in which the nature of the business conducted by it under this Agreement makes such authorization necessary and has the requisite power to own and operate its properties, to carry on its business and to execute, deliver and perform its obligations under this Agreement.
(b) Corporate Authorizations. The execution, delivery and performance by Contractor of this Agreement (i) have been duly authorized by all requisite corporate action on its part, (ii) will not violate any Applicable Law, (iii) will not cause a breach of, or result in the imposition of any lien upon any of its assets under, any of its organizational documents or any agreement, instrument or other requirement by which it or any of its properties may be bound or affected and (iv) does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Contractor or any other party to any other agreement with Contractor.
(c) Enforceability. The execution and delivery by Contractor of this Agreement will cause it to constitute a legal, valid and binding obligation of Contractor, enforceable against Contractor in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and as enforceability thereof may be subject to general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). (d) No Actions. There are no actions, suits, proceedings or investigations ATTACHMENT 1
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pending or, to its knowledge, threatened against it at law or in equity before any court or before any federal, state or municipal agency which, individually or in the aggregate, is reasonably likely to have an adverse effect on its ability to perform its obligations under this Agreement. (e) Government Approvals. No Permit or license from, and no registration, declaration or filing with, any Governmental Authority is required on the part of Contractor in connection with the execution, delivery and performance of this Agreement, except those which have already been obtained or which Contractor anticipates will be timely obtained in the ordinary course of the performance of this Agreement.
(f) Qualifications. Contractor has examined this Agreement (including the Body of the Agreement and all exhibits attached hereto) thoroughly and is familiar with and understands its terms and has the experience and qualifications to perform the Work in a manner consistent with all of the requirements of this Agreement, including having all licenses and certifications required for the performance of the Work at the Project Site and wherever Work is otherwise performed.
Section 14.2 Owner. Owner hereby represents and warrants to Contractor as of the Effective Date and as of the effective date of each Purchase Order that:
(a) Due Incorporation and Good Standing. It is a municipal corporation duly organized, validly existing and in good standing under the laws of the State of California and is authorized to do business and in good standing in all jurisdictions in which the nature of the business conducted by it makes such authorization necessary and has the requisite power to own and operate its properties, to carry on its business and to execute, deliver and perform its obligations under this Agreement.
(b) Corporate Authorizations. Subject to Section 2.2(b), the execution, delivery and performance by Owner of this Agreement (i) have been duly authorized by all requisite company action on its part, (ii) will not violate any Applicable Law, (iii) will not cause a breach of, or result in the imposition of any lien upon any of its assets under, any of its organizational documents or any agreement, instrument or other requirement by which it or any of its properties may be bound or affected and (iv) does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Owner or any other party to any other agreement with Owner.
(c) Enforceability. The execution and delivery by Owner of this Agreement will cause it to constitute a legal, valid and binding obligation of Owner, enforceable against Owner in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and as enforceability thereof may be subject to general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). (d) No Actions. There are no actions, suits, proceedings or investigations pending or, to its knowledge, threatened against it at law or in equity before any court or before any federal, state or municipal agency or claims against it or the Project which, individually or in the aggregate, is reasonably likely to have an adverse effect on its ability to perform its obligations under this Agreement.
(e) Government Approvals. No approvals from, and no registration, declaration or filing with, any Governmental Authority is required on the part of Owner in connection with the execution, delivery and performance of this Agreement, except those which have already been ATTACHMENT 1
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obtained or which Owner anticipates will be timely obtained in the ordinary course of the performance of this Agreement.
ARTICLE 15
CONFIDENTIALITY
Section 15.1 Confidentiality. Each of the Parties agrees to keep strictly confidential the contents of this Agreement and any materials, documents or information regarding the Project delivered or received in connection herewith as follows:
(a) Unless otherwise agreed in writing by the Parties, the Receiving Party shall hold Confidential Information in confidence, shall only use such Confidential Information in connection with the performance of its obligations under this Agreement, and shall not use Confidential Information for any purpose unrelated to this Agreement or disclose Confidential Information to anyone other than its personnel (which term shall include, for purposes of this Agreement, the officers, directors, employees and agents of the Receiving Party and of the Receiving Party’s parent, subsidiary or affiliated companies), outside legal or financial advisors.
The Receiving Party agrees that only those personnel who need to have access to Confidential Information in order to perform duties related to this Agreement are authorized to receive the Confidential Information and such personnel shall only be provided such Confidential Information to the extent needed. Any personnel receiving Confidential Information shall be advised of this confidentiality obligation and must agree in writing to be bound by terms in accordance with this Section 15.1. The Receiving Party shall be responsible to ensure that those individuals to whom it makes disclosure of Confidential Information as provided herein abide by the provisions of this Section 15.1. The Parties also agree that concurrently upon execution of this Agreement, that Contractor shall execute and deliver a License Agreement (the “License Agreement ”) in favor of the American Public Power Association in connection with a Grant Agreement by a nd between Owner and American Public Power Association (the “ Grant Agreement”). Permitted disclosures made pursuant to the License Agreement shall not be a breach of this Agreement. Owner agrees that Contractor shall have the right , and shall have a reasonable period of time to exercise such right, to review, provide comment on, and approve project reports and any other information or deliverables (collectively, the “APPA Deliverables”) to be provided to the American Public Power Association pursuant to the Grant Agreement, such approval not to be unreasonably withheld, conditioned, or delayed, prior to delivery, to ensure that the APPA Deliverables (i) are required pursuant to the terms of the Grant Agreement or as Owner reasonably determines is appropriate under the Grant Agreement, such determination subject to Contractor’s consent not to be unreasonably withheld, conditioned or delayed; (ii) comply with the DEED Grant Requirement s set forth in the Grant Agreement; and (iii ) are presented in a manner that accurately reflects the Equipment, the performance of the Equipment, and other relevant conditions . For the avoidance of doubt, the APPA Deliverables shall not include sensitive and proprietary information that is Contractor’s intellectual property, including patents, trade secrets, copyrights, trademark, and other intellectual property rights and equivalent or similar forms of protection, and Contractor shall have the right to redact such information prior to any disclosure to APPA. (b) Except as specifically set forth in this Agreement, this Section 15.1 shall not be construed as to obligate either Party to make any disclosure and neither Party is granted any right hereby to demand access to any Confidential Information. Disclosing Party may elect at any time to terminate further access to its Confidential Information; provided that this Section 15.1 shall not modify the rights, if any, that either Party may have to access Confidential Information pursuant ATTACHMENT 1
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to any agreement between the Parties executed after the Effective Date. Except as otherwise provided in this Agreement, the Disclosing Party is under no obligation to update, revise or correct Confidential Information which is provided to the Receiving Party under this Agreement. At the written request of the Disclosing Party, the Receiving Party shall promptly return or destroy all Confidential Information received by the Receiving Party (including copies), to the extent reasonably possible.
(c) A Receiving Party may disclose Confidential Information if and to the extent required under Applicable Law or by a Governmental Authority (provided that the Receiving Party uses its commercially reasonable efforts to protect such Confidential Information from entering the public record, including without limitation by marking it as confidential and adding protective legends). In the event that the Receiving Party or any of its representatives are required by applicable law , regulation or any competent judicial, supervisory or regulatory body to disclose any of the Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice of any such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, however in the opinion of the counsel of the Receiving Party, the Receiving Party or its Representatives are nonetheless , in the absence of such order or waiver, compelled to disclose such Confidential Information, then the Receiving Party may di
sclose only such portion of the Confidential Information which, in the opinion of its counsel, the Receiving Party is compelled to disclose. The Receiving Party will not oppose any action by the Disclosing Party to obtain reliable assurance that confidential treatment will be accorded the Confidential Information. The Receiving Party and its Re presentatives will reasonably cooperate with the Disclosing Party in their efforts to obtain a protective order or other appropriate remedy that the Disclosing Party elects to seek to obtain, in their sole discretion; provided that Receiving Party shall not be required to expend legal fees or any other costs or expenses in connection with such cooperation. Contractor acknowledges that Owner is a California municipal corporation that is subject to the California Public Records Act and other laws related to public transparency. (d) The confidentiality provision set forth in this Section 15.1 shall be effective for a period of three (3) years after the termination of this Agreement.
Section 15.2 Publicity. Subject to their respective obligations under the Grant Agreement, Owner and Contractor shall treat this Agreement and all matters addressed within it as private and confidential. Neither Owner nor Contractor shall publish any drawing, photograph, video or film or directly or indirectly disclose any information relating to Owner’s or Contractor’s performance obligations or the Project to the press, radio, television or other news media without the prior written consent of the other Party and subject to such reasonable conditions as may be prescribed by such Party; provided, that this section shall not apply to any disclosure of non -Confidential Information to the Burbank City Council, Burbank Water and Power Board, any other Burbank commission or board and any associated broadcast or recording of such meeting.
ARTICLE 16
DISPUTE RESOLUTION
Section 16.1 Dispute Resolution. Any claim, dispute or controversy arising out of or relating to this Agreement or the breach, validity, or termination thereof (each, a “Dispute”), will first be attempted to be resolved by the responsible project management personnel for both Parties.
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aware of the circumstances giving rise to the Dispute (the “Dispute Notice”). Resolution failing to materialize within ten (10) days of such notice, either Party shall send written notice to the other Party requesting the Dispute to be escalated to senior management of both Owner and Contractor (the “Management Notice”). Upon receiving such Management Notice (the “Management Notice Date”), the senior management of both Owner and Contractor shall negotiate in good faith to reach an acceptable and timely resolution of the Dispute. In the event senior management fails to resolve the dispute within 45 days after the Management Notice Date (the last day of such time period, the “Escalation to Mediation Date”), either Party may initiate mediation in accordance with this Article 16.
Section 16.2 Mediation. Subject to Section 1 6.1, the Parties may, at any time after the Escalation to Mediation Date, submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The venue of the mediation shall be in the State of California . The P arties shall cooperate with one another in selecting a mediation service, and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in schedu ling the medi ation proceedings. The P arties covenant that they will use commercially reasonable efforts in participating in the mediation. The P arties agree that the mediator’s fees and expenses will be shared equally between t he P arties. The Parties furth er agree that all offers, promises, conduct, and statements, whether oral or written, made in the course of the mediation by any of the Parties, their agents, employees, experts, and attorneys, and by the mediator and any employees of the mediation service , are confidential, privileged, and inadmissible for any purpose, including impeachment, in any litigation, arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered ina dmissible or non- discoverable as a result of its use in the mediation.
Section 16.3 Governing Law. The validity, performance and all matters relating to the interpretation and effect of this Agreement shall be governed by the laws of the State of California, without regard to its conflicts of law principles.
Section 16.4 Jury Trial Waiver. CONTRACTOR AND OWNER (BY ITS
ACCEPTANCE HEREOF) HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO
TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF, UNDER OR RELATING TO THIS AGREEMENT.
Section 16.5 Work to Continue. Notwithstanding any Dispute, and regardless of the basis thereof or grounds therefor, including Disputes based on or related to any Change, and provided that Owner has paid to Contractor all amounts which are not in dispute, Contractor agrees that it will, for so long as this Agreement has not been terminated or the Work suspended, diligently prosecute the Work to completion of the Contractor -Procured Equipment Delivery Schedule & Requirements, all in accordance with the terms of this Agreement.
ARTICLE 17MISCELLANEOUS
Section 17.1 Intellectual Property Rights; Work Product and Licenses. Contractor shall retain ownership of any and all of its Intellectual Property Rights, whether pre-existing or developed in the performance of the Work, including but not limited to, standards, design methods, calculations, databases, control algorithms, processes, arrangements, integration techniques, concepts, designs, computer software and any other of Contractor’s proprietary property (“Contractor’s Intellectual Property”); provided, however, that Owner shall have, and ATTACHMENT 1
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Contractor hereby grants Owner, a permanent, non-exclusive, transferable, royalty-free and fully paid-up license to use Contractor’s Intellectual Property solely in connection with Owners use, ownership and operation of its energy storage assets; provided however, that Contractor makes no warranty and shall have no indemnity obligations as to the use of its Intellectual Property Rights outside of the Facility and any use by Owner outside of the Facility shall be at Owner’s peril. Owner shall own the project site data and all data generated by the Equipment and monitoring system (collectively, the “Owner Data”), and all Intellectual Property Rights therein, excluding in each case any of Contractor’s Intellectual Property incorporated herein. Owner hereby grants nonexclusive license to Contractor to use and sublicense the Owner Data received during the term of the Agreement for the purposes of performing and exercising rights and obligations under the Agreement, product development and improvement, performance metrics and upgrading purposes; provided however, that Owner Data may not be used for marketing purposes if identifiable with Owner or the Project.
Section 17.2 Notice.
(a) As used in this Agreement, “notice” includes the communication of a notice, a request, a demand, an approval, an offer, a statement, a report, an acceptance, a consent, a waiver or an appointment. Except for oral notices explicitly allowed under this Agreement, (i) all notices shall be in writing sent by the Party giving such notice, and (ii) shall be considered given either (A) when actually received by the recipient named below, whether by a courier or an overnight delivery service, (B) when actually received, if sent by facsimile during normal business hours of the recipient, or otherwise on the next Business Day, to the applicable fax number set forth below subject to the confirmation of a successful transmission, (C) when actually received if sent by United States mail in a sealed envelope or container, either registered or certified, return receipt requested, postage and postal charges prepaid, or (D) except as provided in Section 17.3(b) below, when actually received, if sent by electronic mail during normal business hours of the recipient, or otherwise on the next Business Day, to the applicable email address set forth below subject to the confirmation by email receipt, in each case addressed to the Party as follows:
If delivered to Owner: Burbank Water & Power
164 Magnolia Boulevard
Burbank, CA 91502
Attention: Mandip Samra
Email: [email protected]
If delivered to Contractor: ESS Tech, Inc.
26440 SW Parkway Avenue, Building 83
Wilsonville, OR 97070
Facsimile:
Attention: Contracts
Email: [email protected]
Copy to: [email protected]
(b) All legal notices, demands, claims and communications related to this Agreement (such as those related to termination, suspension, excusable delays, indemnification, disputes or assignment), shall be in writing and shall be deemed to be validly given to th e ATTACHMENT 1
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addressees set forth by the means described in Section 17.3(a)(i)(A), (B) or (C), and with copies to the following additional addresses:
For Owner
Copy to: [XXXX]
Attention: [XXXX]
Facsimile: [XXXX]
For Contractor ESS Tech, Inc.
26440 SW Parkway Avenue, Building 83
Wilsonville, OR 97070
Attention: Legal
Email: [email protected]
(c) Either Party may, by giving notice at any time or from time to time, require subsequent notice to be given to another individual, such as an officer or representative of a Party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.
Section 17.3 Independent Engineer. Owner may engage an Independent E ngineer to assist in the ongoing evaluation of the Work. Contractor shall allow such Independent Engineer to be present at all times that Owner is allowed.
Section 17.4 Independent Contractor. Contractor is an independent contractor, and nothing contained herein shall be construed as constituting any relationship with Owner other than that of owner and independent contractor, nor shall it be construed as creating any relationship whatsoever including employer/employee, partners or joint venture parties, between Owner and Contractor’s employees.
Section 17.5 No Rights in Third Parties. Except as otherwise expressly provided herein, this Agreement and all rights hereunder are intended for the sole benefit of the Parties and shall not imply or create any rights on the part of, or obligations to, any other Person.
Section 17.6 Assignment.
(a) By Contractor. Except for an assignment of its right to receive payments from Owner hereunder, Contractor shall not assign its rights or permit the assumption of its obligations under this Agreement without the prior written consent of Owner, which consent shall not be unreasonably withheld, conditioned or delayed.
(b) By Owner. Owner shall not assign its rights or permit the assumption of its obligations under this Agreement without the prior written consent of Contractor, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that no such consent shall be required with respect to the assignment to an Affiliate of Owner. (c) Null and Void. Any assignment not in conformity with this Section 17.7 shall be null and void.
Section 17.7 Incorporation by Reference. All exhibits attached to this Agreement and any Purchase Order issued hereunder are incorporated by reference herein and made a part of this ATTACHMENT 1
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Agreement for all purposes.
Section 17.8 Entire Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and commitments with respect thereto. There are no other oral understandings, terms or conditions and neither Party has relied upon any representation, express or implied, not contained in this Agreement.
Section 17.9 Amendments. This Agreement may be modified or amended only by a written instrument signed by the Parties.
Section 17.10 Severability. If any provision of this Agreement shall be determined to be unenforceable, void or otherwise contrary to Applicable Law, or in the event that any of the provisions of this Agreement are held unenforceable or invalid by any court of competent jurisdiction, such condition shall in no manner operate to render any other provision of this Agreement unenforceable, invalid, void or contrary to Applicable Law, and this Agreement shall continue in force in accordance with the remaining terms and provisions hereof, unless such condition invalidates the purpose or intent of this Agreement; provided, however, that Owner and Contractor shall negotiate in good faith to attempt to implement an equitable adjustment in the provisions of this Agreement with a view toward effecting the purposes of this Agreement by replacing the provision that is unenforceable, invalid, void or contrary to Applicable Law with a valid provision the economic effect of which comes as close as possible to that of the provision that has been found to be unenforceable, invalid, void or contrary to Applicable Law.
Section 17.11 Drafting Ambiguities. Preparation of this Agreement has been a joint effort of the Parties and the resulting document shall not be construed more severely against one of the Parties than against the other. Any rule of construction that ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation of this Agreement or any amendments or exhibits hereto.
Section 17.12 Right of Waiver. Each Party, in its sole discretion, shall have the right, but shall have no obligation, to waive, defer or reduce any of the requirements to which the other Party is subject under this Agreement at any time, provided, however, that neither Party shall be deemed to have waived, deferred or reduced any such requirements unless such action is in writing and signed by the waiving Party. A Party’s exercise of any rights hereunder shall apply only to such requirements and on such occasions as such Party may specify and shall in no event relieve the other Party of any requirements or other obligations not so specified.
Section 17.13 Waiver of Breach. A delay or failure to enforce at any time any of the provisions of this Agreement, or to require at any time performance by the other Party of any of the provisions hereof, shall in no way be construed to be a waiver of such provisions or to affect either the validity of this Agreement or any part hereof or the right of either Party thereafter to enforce each provision in accordance with the terms of this Agreement.
Section 17.14 Survival. All provisions of this Agreement that are expressly or by implication come into or continue in force and effect after the expiration or termination of this Agreement, including without limitation Section 3.7(b), Article 7, Article 9, Article 10, Article 12, Article 13, Article 14, Article 15, Article 16, and Article 17.1 shall remain in effect and be enforceable following such expiration or termination. Termination or expiration of this Agreement (a) shall not relieve either Party of any other obligation imposed under this Agreement which ATTACHMENT 1
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by implication survives termination hereof and (b) except as otherwise provided in Article 7 or in any other provision of this Agreement expressly limiting the liability of either Party, shall not relieve Owner or Contractor of any obligations or liabilities arising out of or caused by acts or omissions of such Party prior to the effectiveness of such termination or arising out of such termination.
Section 17.15 Effectiveness. This Agreement shall be effective as of the Effective Date and shall be binding upon the Parties upon the full execution and delivery of this Agreement by the Parties.
Section 17.16 Further Assurances. Each of the Parties agrees to provide such information, execute and deliver any instruments and documents and take such other actions as may be necessary or reasonably requested by the other Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumption of obligations other than those provided for in this Agreement, in order to give full effect to this Agreement and to carry out the intent of this Agreement.
Section 17.17 Conflicting Provisions. In the event of any conflict or inconsistency between the provisions of this Agreement without any of the exhibits attached hereto (the “Body of the Agreement”), any one or more of the exhibits attached hereto and the Services Purchase Agreement , the terms of the Body of the Agreement shall control, with the exception of Exhibit A and any Purchase Orders , which shall have precedence over the Body of the Agreement.
Notwithstanding the foregoing, the Body of the Agreement shall take precedence as to matters not addressed in Exhibit A or in the applicable Purchase Order. Either Party, upon becoming aware of any such conflict or inconsistency between the Body of the Agreement and any one or more of the exhibits attached hereto, shall promptly notify the other Party in writing of such conflict or inconsistency. Any conflict or inconsistency which cannot be resolved by the Parties shall be resolved in accordance with the provisions of Article 16.
Section 17.18 Captions. The captions contained in this Agreement are for convenience and reference only and in no way define, describe, extend or limit the scope of intent of this Agreement or the intent of any provision contained herein.
Section 17.19 Counterparts. This Agreement may be executed by the Parties in one or more counterparts or duplicate originals, all of which taken together shall constitute one and the same instrument. The facsimile or pdf signatures of the Parties shall be deemed to constitute original signatures and facsimile or pdf copies hereof shall be deemed to constitute duplicate originals.
Section 17.21 Obligation to Act in Good Faith; Grant Agreement and License Agreement.
Unless expressly provided in this Agreement that a Party may act in its sole discretion, (i) the Parties shall act reasonably and in accordance with the principles of good faith and fair dealing in the performance of this Agreement, (ii) where the Agreement requires the consent, approval or similar action by a Party, such consent or approval shall not be unreasonably withheld, conditioned or delayed unless stated otherwise herein and (iii) wherever the Agreement gives a Party a right to determine, require, specify or take similar action with respect to a matter, such determination, requirement specification or similar action shall be reasonable. Contractor acknowledges and agrees that the Grant Agreement is a crucial source of funding for the Owner and shall use commercially reasonable efforts to cooperate with Owner and the American Public Power Association. Contractor also agrees that it shall comply with all provisions under the License Agreement.
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[signature page to follow]
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IN WITNESS WHEREOF, Contractor and Owner have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.
“Owner” “Contractor”
Burbank Water and Power ESS Tech, Inc.
By: By:
Name: Name:
Title: Title:
By:
Name:
Title:
ATTACHMENT 1
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Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
Exhibit A
Contractor’s Scope of Work and Specifications
1. SCOPE OF SUPPLY
Contractor shall procure, manufacture, assemble, deliver, commission and test QTY 1 75 kW / 400 kWh, 60 Hz Energy Warehouse
1.1. Included:
1.1.1. Battery modules
1.1.2. Electrolyte concentrate, electrolyte storage, containerized enclosure, and all mechanical BOP
1.1.3. AC-DC bi-directional inverter
1.1.4. Battery management system with MODBUS TCP/IP communication p rotocol
1.1.5. Web-based HMI
1.1.6. ESS standard Factory Acceptance Test and report
1.1.7. Technical documentation package including: Structural, Electrical, and Communication/Control interface definitions, SDS’s
1.1.8. O&M manual
1.1.9. Warranty under Services Purchase Agreement
1.1.10. Delivery terms: DAP, Project Site [__________], Burbank, CA
1.2. Excluded:
1.2.1. Site ancillary equipment such as: AC switchgear and distribution, customer or utility transformers, metering, protective relay(s), site Energy Management System (EMS), site communication network infrastructure and cabling, physical HMI’s
1.2.2. Project site selection, surveys, site certification, review of applicable laws, permits; mitigation of sensitive environments, environmental compliance; special studies
1.2.3. Site civil Works including: foundation design, geotechnical investigation; access roads, staging areas, foundation construction, grading
1.2.4. Site electrical works including: electrical studies, equipment grounding, distribution panels, transformers, substation work, cabling
1.2.5. Site issues including but not limited to: electrical load, fire protection, customer project design or customer-supplied equipment
1.2.6. Equipment unloading, equipment installation, electrical interconnect
1.2.7. Site security including any fencing, lighting, monitoring, or other customer requirements
1.2.8. Site-specific equipment certifications
1.2.9. Electrical utility interconnection and grid integration
1.2.10. Startup and Commissioning services
1.2.11. Training
1.2.12. Operation and maintenance services
1.2.13. Extended or Performance warranty
ATTACHMENT 1
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Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
2. TECHNICAL SPECIFICATIONS FOR ESS INC IRON FLOW BESS
2.1. EW-75-500-60 Battery General Specifications (for reference only) # Item Unit Spec Notes
2.1.1. Nominal Operating Temperature °C 25 ± 5°C tolerance
2.1.2. Min & max temperature with
derating
°C 0 - 50 Power electronics will de-
rate at max temperature. A
weatherization package will
be required if operation is
needed outside of indicated
range
2.1.3. Min & Max temperature without
derating
°C 10 - 40 A weatherization package
will be required if operation
is needed outside of
indicated range
2.1.4. Min & max
storage/transportation
temperature
°C -20-60
2.1.5. Nominal Operating Voltage VDC 480 5-wire, 3-phase
2.1.6. Nominal operating Frequency Hz 60
2.1.7. Nominal Current – Charge A 90 @ 480 VAC
2.1.8. Min & Max Current – Charge A 0-120 Includes maximum auxiliary power consumption. @ 480
VAC
2.1.9. Nominal Current – Discharge A 90 @ 480 VAC
2.1.10. Min & Max Current – Discharge A 0-108 @ 480 VAC
2.1.11. Operating Mass of system Kg 39,000 When fully hydrated
2.1.12. Transport Mass of system Kg 19,500
2.1.13. Dimensions m 12.2 x 2.4 x 2.9 L x W x H
2.2. Performance Parameters
# Item Unit Spec Notes
2.2.1. Maximum Battery Discharge
Capacity
kWh 500
2.2.2. Discharge capacity at nominal
power
kWh 400 80% of total depth of
discharge
2.2.3. Nominal Power – Charge kW 75
2.2.4. Nominal Power – Discharge kW 75
2.3. BMS Specifications
# Item Description
2.3.1. BMS manufacturer ESS Inc.
2.3.2. Communication protocol MODBUS TCP/IP following SunSpec battery model 802 w/ additional registers
ATTACHMENT 1
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2.3.3. Control modes
Auto (Real power setpoint)
2.3.4. Standby
2.3.5. Cleaning cycle
2.3.6. Reported monitoring data
Container internal ambient temperature
2.3.7. Battery Electrolyte temperature
2.3.8. AC bus voltage
2.3.9. AC bus current
2.3.10. DC bus voltage
2.3.11. DC bus current
2.3.12. Battery SOC
2.3.13. Battery SOH
2.3.14. Battery available discharge power
2.3.15. Fault Reporting System fault list is provided
3. FACTORY ACCEPTANCE TEST METHOD FOR BATTERY QUALIFICATION Set forth in relevant Purchase Order
ATTACHMENT 1
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Exhibit B
Project Schedule
Project schedule for deployment shall consist of the following:
Milestone Description
Milestone 1 Work Start / Purchase Order Execution (Equipment)
Milestone 2 Manufacturing Begins / Materials Procured and Documented
Milestone 3 Factory Acceptance Testing
Milestone 4 Acceptance
Exhibit C
Approved Subcontractor and Supplier List
ATTACHMENT 1
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ATTACHMENT 1
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Exhibit D
Form of Invoice
ATTACHMENT 1
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Exhibit E
Form of Lien Waivers
ATTACHMENT 1
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Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
Exhibit F
Wire Transfer Instructions
Incoming Domestic Routing & Wire Transfer
Instructions for the paying financial institution or payer to route all domestic wire transfers via FEDWIRE to the following ABA number:
Commercial Bank
PAY TO: Silicon Valley Bank
ROUTING & TRANSIT 121140399
FOR THE CREDIT OF: ESS Tech
26440 SW Parkway Ave
Wilsonville, OR 97070
CREDIT ACCOUNT #: 3302437007
BY ORDER OF: NAME OF SENDER
Private Bank
PAY TO: Silicon Valley Bank
ROUTING & TRANSIT 121140399
FOR THE CREDIT OF: ESS Tech, 26440 SW Parkway Ave, Wilsonville, OR 97070
CREDIT ACCOUNT #: 3302437007
BY ORDER OF: NAME OF SENDER
International Routing & Wire Transfer
Instruct the paying financial institution to advise their US correspondent to pay as follows:
PAY TO: Sil Val Bk SJ,
3003 Tasman Drive, San Jose, CA 95054 USA
ROUTING & TRANSIT 121140399
FOR CREDIT OF (ACCOUNT NAME): _______________________________ ADDRESS (YOUR ADDRESS): _______________________________ FINAL CREDIT ACCOUNT #: _______________________________ BY ORDER OF: Name of Sender_____________
Important: Wire instructions MUST designate your full 10 Digit Account Number. Wires received by SVB with Incomplete or Invalid Account Numbers may be delayed and could possibly require return to the sender bank due to new regulations.
ATTACHMENT 1
A1-53
Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
Exhibit G
Sales Tax Exemption Certificate
ATTACHMENT 1
A1-54
Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
Exhibit H-1
Contractor Insurance Requirements
Prior to the performance of Services at the Project Site, the Contractor shall furnish the Owner evidence of coverage from insurers acceptable to the Owner and in a form acceptable to the Owner.
Such insurance shall be maintained by the Contractor at the Contractor's sole cost and expense.
Coverage to be maintained from the commencement of this Agreement and the duration of the Warranty Period. Unless otherwise approved by the Owner, Contractor’s insurance shall be written by insurers authorized to do business in the State of California and with a minimum “Best's” Insurance Guide rating of “A-.” Self-insurance will not be considered to comply with these insurance specifications.
In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, the Owner has the right but not the duty to obtain the insurance it deems necessary, and any premium paid by the Owner will be promptly reimbursed by the Contractor.
Such insurance shall not limit or qualify the liabilities and obligations of the Contractor assumed under the contract. The Owner shall not by reason of its inclusion under these policies incur liability to the insurance carrier for payment of premium for these policies.
Any insurance carried by Owner which may be applicable shall be deemed to be excess insurance and the Contractor's insurance is primary for all purposes despite any conflicting provision in the Contractor's policies to the contrary.
Said evidence of insurance shall contain a provision that the policy cannot be canceled or reduced in coverage or amount without first giving 30 calendar days' notice thereof (10 days for non-payment of premium) by registered mail to Owner’s Purchasing Division, at Owner of Burbank, 301 E. Olive Avenue – Suite 305, Burbank, CA 91502.
Should any portion of the required insurance be on a "Claims Made" policy, the Contractor shall, at the policy expiration date following completion of Work, provide evidence that the "Claims Made" policy has been renewed or replaced with the same limits, terms and conditions of the expiring policy, or that an extended discovery period has been purchased on the expiring policy at least for the contract under which the Work was performed.
Failure to maintain and provide acceptable evidence of the required insurance for the required period of coverage shall constitute a breach of contract, upon which the Owner may immediately terminate or suspend the agreement.
Contractor shall be responsible for all Subcontractors’ compliance with the insurance requirements.
11.1 WORKER’S COMPENSATION/EMPLOYER’S LIABILITY INSURANCE
The Contractor shall provide Workers' Compensation insurance covering all of the Contractor 's employees in accordance with the laws of any state in which the Work is to be performed and including Employer's Liability insurance and a Waiver of Subrogation in favor of the Owner. The limit for Employer's Liability coverage shall be not less than $1,000,000.00 each accident and shall be a separate policy if not included with Workers' Compensation coverage. Evidence o f such ATTACHMENT 1
A1-55
Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
insurance shall be in the form of a Certificate of insurance or a Certified True and Correct copy of the entire original policy acceptable to the Owner’s legal counsel. Workers' Compensation/Employer's Liability exposure may be self -insured provided that the Owner is furnished with a copy of the certificate issued by the state authorizing the Contractor to self-insure.
Contractor shall notify the Purchasing Division by receipted delivery as soon as possible of the state withdrawing authority to sel f-insure. The policy shall be endorsed to waive all rights of recovery against the Owner, members of the Owner Council, and officers, employees and agents of the Owner.
11.2 COMMERCIAL GENERAL/PUBLIC LIABILITY INSURANCE
The Contractor shall provide Commercial General Liability insurance with Contractual Liability, Independent Contractors, Broad Form Property Damage, Premises and Operations, Collapse/Underground Hazard, Products and Completed Operations, and Personal Injury coverages included. Such insurance shall provide coverage for total limits actually arranged by the Contractor, but not less than $2,000,000.00 per occurrence and an aggregate limit not be less than $4,000,000. Coverage to be written on form CG 00 01 or an equivalent and should be project specific. Policy should be endorsed or have language to make it primary and non-contributory and shall include a waiver of subrogation in favor of the Owner. Umbrella or Excess Liability coverages may be used to supplement primary coverages to meet the required limits. Evidence of such coverage shall be on the Owner's Additional Insured Endorsement form or a Certified True and Correct copy of the entire original policy acceptable to the Owner’s legal counsel, and shall provide for the following:
1) Include Owner and its Council, officers, agents and employees as additional insureds with the Named Insured for the activities and operations under Bid Schedule No. 1495. Additional Insured Endorsement to be on an ISO form CG 20 10 11 85, or an ISO form CG 20 10 04 13 (or a substitute form providing equivalent coverage as approved by the Owner) and an ISO form CG 20 37 04 13 (or a substitute form providing equivalent coverage as approved by the Owner).
2) Severability-of-Interest or Cross-Liability Clause such as: "The policy to which this endorsement is attached shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the company's liability."
3) A description of the coverages included under the policy.
11.3 COMPREHENSIVE AUTOMOBILE LIABILITY INSURANCE COVERAGE
The Contractor shall provide Commercial Automobile Liability insurance which shall include coverages for liability arising out of the use of owned, non -owned, and hired vehicles for performance of the Work as required to be licensed under the California or any other applicable state vehicle code. The Commercial Automobile Liability insurance shall have not less than $1,000,000.00 combined single limit per occurrence and shall apply to all operations of the Contractor.
The Commercial Automobile Liability policy shall name the Owner and its Council, officers, agents and employees while acting within the scope of their employment, as additional insureds with the ATTACHMENT 1
A1-56
Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
Contractor, and shall insure against liability for death, bodily injury, or property damage resulting from the performance of this Agreement. The form of evidence of insurance shall be a Certificate of Insurance acceptable to the Owner or a Certified True and Correct copy of the entire original policy acceptable to the Owner. The Additional Insured Endorsement is to be on an ISO form CG 20 10 11 85, or an ISO form CG 20 10 04 13 (or a substitute form providing equivalent coverage as approved by the Owner) and an ISO form CG 20 37 04 13 (or a substitute form providing equivalent coverage as approved by the Owner).
The policy shall also be endorsed to include Transportation Pollution Liability insurance, covering materials to be transported by the Contractor pursuant to this contract. This coverage may also be provided on the Contractors’ Pollution Liability policy. In addition, the MCS -90 and CA 99 48 endorsements are required for hazardous materials/waste transporters.
The policy shall also be endorsed to provide a waiver of subrogation, in favor of the Owner.
11.4 PROFESSIONAL LIABILITY INSURANCE
The Contractor shall provide Professional Liability insurance covering liability arising from errors and omissions made during the executing of this Contract for the total limits actually arranged by the Contractor , but not less than $2 ,000,000.00, per occurrence. The coverage shall include Contractual Liability, and should the policy be of a claims -made form, such policy shall be maintained for not less than five (5) years after the date of final acceptance of completion of all Work performed under this agreement. Evidence of such insurance shall be in the form of a Certificate of Insurance or a Certified True and Correct copy of the entire original policy acceptable to the Owner.
11.5 CONTRACTORS’ POLLUTION LIABILITY INSURANCE
The Contractor shall provide Contractors’ Pollution Legal Liability, not excluding asbestos and/or lead with limits no less than $2,000,000 combined single limit, per occurrence, and $4,000,000 aggregate. Policy should be endorsement or have language to make it primary and non - contributory. Policy shall include a waiver of subrogation, in favor of the Owner. Coverage may be included in the Commercial General/Public Liability Insurance policy. Evidence of such coverage shall be on the Owner's Additional Insured Endorsement form or a Certified True and Correct copy of the entire original policy acceptable to the Owner’s legal counsel, and shall provide for the following:
1) Include Owner and its Council, officers, agents and employees as additional insureds with the Named Insured for the activities and operations under Bid Schedule No. 1495. Additional Insured Endorsement to be on an ISO form CG 20 10 11 85, or an ISO form CG 20 10 04 13 (or a substitute form providing equivalent coverage as approved by the Owner) and an ISO form CG 20 37 04 13 (or a substitute form providing equivalent coverage as approved by the Owner).
2) Severability-of-Interest or Cross-Liability Clause such as: "The policy to which this endorsement is attached shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the company's liability."
3) A description of the coverages included under the policy.
ATTACHMENT 1
A1-57
Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
11.6 BUILDER’S RISK/COURSE OF CONSTRUCTION INSURANCE
The Owner of Burbank will obtain and pay for the Builder’s Risk policy for this project. The Contractor will be responsible for the deductible portion of the policy. The deductible will be no greater than $100,000. Builder’s Risk shall specifically include equipment breakdown (boiler and machinery) coverage and not exclude soft costs.
11.7 RESPONSIBILITY FOR DAMAGE AND THEFT
The Contractor may insure the equipment, materials and Work to cover Contractor's interest in the same from time to time, as required. The Ow ner will not, under any circumstances, be liable, answerable or accountable for any theft, loss or damage, however and by whatever cause, to said equipment, materials and Work, or any part or parts thereof, used or employed in fully completing the Contract, until after the contract is completed and formal acceptance of the Work by the Owner.
ATTACHMENT 1
A1-58
Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
Exhibit H-2
Owner’s Insurance Requirements
Before any Services are commenced at the Project Site, Owner shall, at its sole cost, cause to be issued and maintained in force during the Term, or self-insure to the degree Owner self- insures its similar exposures, the below listed coverages:
• Workers’ Compensation Insurance, including occupational illness or disease coverage, or other similar social insurance in accordance with the laws of the nation, state, territory or province exercising jurisdiction over Owner and Employer’s Liability Insurance with a limit of USD $1,000,000 per accident.
• Commercial General Liability coverage with a combined single limit of USD $1,000,000 per occurrence/aggregate.
• Automobile Liability Insurance covering all owned, non-owned, and hired automobiles used at the Project Site with a combined single limit of USD $1,000,000 per occurrence for bodily injury and property damage liability.
Such benefits and such coverage as required of Owner herein or in any other document to be considered a part hereof, shall not be deemed to limit Owner’s liability under this Agreement.
Except for Workers Compensation insurance, the policies required herein shall include (i) provisions or endorsements identifying Contractor and its subcontractors and vendors and its directors, officers and employees as additional insureds, and (ii) a cross-liability and severability of interest clause. Limits may be in any combination of excess and primary liability policies. All policies required by this Agreement shall include provisions that such insurance is primary insurance with respect to the obligations of Owner to Contractor and that any other insurance maintained by Contractor is excess and not contributory insurance with the insurance required hereunder. Owner and its assignees shall cause its insurer to waive all subrogation rights against Contractor under the aforementioned policies.
Before Contractor or its subcontractors or vendors, if any, commence Services at the Project Site, Owner shall provide Certificates of Insurance reasonably satisfactory in form to Contractor evidencing that the coverages, coverage extensions, additional insured provisions and waivers of subrogation as required under this Agreement are maintained in force.
ATTACHMENT 1
A1-59
Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
Exhibit I
Form of Progress Reports (Monthly, Weekly, & Plan of the Day)
ATTACHMENT 1
A1-60
Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
Exhibit J
Key Personnel
CONTRACTOR’S KEY PERSONNEL
The following individual(s) shall be the Key Personnel designated to perform the Work of this Agreement:
Contractor’s Key
Personnel Company Title Contact Information
Shawn McLaughlin ESS Inc. Project Manger [email protected] Ken Fisher ESS Inc. Project Engineer [email protected]
TBD TBD TBD TBD
TBD TBD TBD TBD
ATTACHMENT 1
A1-61
Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
Exhibit K
Owner-Furnished Equipment Delivery Schedule & Requirements
ATTACHMENT 1
A1-62
Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
Exhibit L
Form of Purchase Order
PURCHASE ORDER
MASTER EQUIPMENT PURCHASE AGREEMENT FOR THE FLOW BATTERY
ENERGY STORAGE FACILITY PROJECT BETWEEN BURBANK WATER AND POWER AND ESS TECH, INC. (“AGREEMENT”)
DATE:________ PURCHASE ORDER NO:___
This Purchase Order is made and entered into by and between Burbank Water and Power and ESS Tech, Inc., pursuant to the Agreement and is made part of the Agreement, together with all attached exhibits made a part of this Purchase Order.
The period of performance or delivery date for this Task Order shall be [date range for Work expressed in number of days or a specific date for delivery of Equipment].
Purchase Order Work to be Provided: Contractor shall perform the Work related to this Purchase Order in accordance with the Agreement and the Scope of Work. [DESCRIPTION OF WORK]
Contractor shall be compensated for the Work specified herein in accordance with the Progress Payment Schedule for the Work in accordance with the Agreement and as set forth below. [PAYMENT PROVISIONS]
IN WITNESS WHEREOF, Contractor and Owner have caused this Purchase Order to be executed by their duly authorized representatives as of the date above.
“Owner” “Contractor”
Burbank Water and Power ESS Tech, Inc.
By: By:
Name: Name:
Title: Title:
ATTACHMENT 1
A1-63
Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
EXHIBIT M
FORM OF ACCEPTANCE CERTIFICATE
Site Acceptance Certificate
Customer: Burbank Water and Power
Project:
System Serial Number(s):
The unit(s) referenced were tested at Customer site and demonstrated to meet the following specifications:
Factory and Site Acceptance Test Parameters
Description Specification Pass Criteria
Customer acknowledges transfer of control of the [Name System] as ordered by customer per P.O. # and that site acceptance testing (SAT) as outlined in the purchase order or agreement has been satisfactorily completed. Any subsequent parts and services required are subject to warranty and services agreements. The listed Products are covered by the warranty terms and conditions set forth in the relevant Services Agreement purchase order from the date of Acceptance.
ESS Representative Customer Representative
Name: ____________________________ Name: ____________________________ Signature: _________________________ Signature: _________________________ Designation: _______________________ Designation: _______________________ Date: _____________________________ Date: _____________________________
ATTACHMENT 1
A1-64