Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
M
ASTER SERVICES PURCHASE CONTRACT
by a
nd between
B
URBANK WATER AND POWER
as Owner
an
d
E
SS TECH, INC.
as Contractor
fo
r the
FL
OW BATTERY SYSTEM
d
ated as of [_____], 2022
ATTACHMENT 2
A2-1
Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
TABLE OF CONTENTS1
ARTICLE 1 DEFINITION OF TERMS ..................................................................................1 Section 1.1 Definition of Terms ....................................................................................1 Section 1.2 Rules of Interpretation ................................................................................7 ARTICLE 2 CONTRACTOR’S OBLIGATIONS...................................................................8 Section 2.1 Contractor’s Performance Obligations .......................................................8 Section 2.2 Notice to Proceed .......................................................................................8 Section 2.3 Deliverables .............................................. Error! Bookmark not defined.
Section 2.4 Cooperation with Owner and Others ..........................................................9 Section 2.5 Taxes ........................................................ Error! Bookmark not defined.
Section 2.6 Standards of Performance ..........................................................................9 Section 2.7 Commissioning of the Work .................... Error! Bookmark not defined.
Section 2.8 Books and Records; Tax Accounting .........................................................9 ARTICLE 3 CONTRACT PRICE AND PAYMENT TERMS ..............................................9 Section 3.1 Contract Price .............................................................................................9 Section 3.2 Price Inclusive ............................................................................................9 Section 3.3 Payment of Contract Price........................................................................10 Section 3.4 Payment of Change Orders ......................................................................10 Section 3.5 Invoicing and Payments ...........................................................................10 Section 3.6 Interest ......................................................................................................10 ARTICLE 4 OWNER’S RIGHTS AND OBLIGATIONS ....................................................10 Section 4.1 Obligations of Owner ...............................................................................10 Section 4.2 Disclosure of Information ........................................................................11 Section 4.3 Owner’s Representative ...........................................................................11 ARTICLE 5 CHANGE ORDERS ...........................................................................................11 Section 5.1 Changes ....................................................................................................11 Section 5.2 Adjustment Due to Changes .....................................................................12 Section 5.3 Change Orders ..........................................................................................12 Section 5.4 Records; Audit..........................................................................................13 Section 5.5 Effect on Performance of Work ...............................................................13 Section 5.6 Contractor Change for Convenience ........................................................13 ARTICLE 6 TRAINING .............................................................. Error! Bookmark not defined.
ARTICLE 7 TESTING AND GOALS ....................................................................................13 Section 7.1 General Testing ........................................ Error! Bookmark not defined.
Section 7.2 Capacity and Energy Performance Tests . Error! Bookmark not defined.
Section 7.3 Capacity and Energy Performance Goals. Error! Bookmark not defined.
1 NTD: To be updated when draft finalized.
ATTACHMENT 2
A2-2
Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
ARTICLE 8 COMPLETION ....................................................... Error! Bookmark not defined.
Section 8.1 Completion ............................................... Error! Bookmark not defined.
Section 8.2 Completion Date ...................................... Error! Bookmark not defined.
ARTICLE 9 LIMITATION OF LIABILITY ........................................................................13 Section 9.1 Limitation of Liability ..............................................................................13 Section 9.2 No Liability for Consequential Damages .................................................13 ARTICLE 10 FORCE MAJEURE ..........................................................................................14 Section 10.1 Excused Performance ...............................................................................14 Section 10.2 Mitigation .................................................................................................14 ARTICLE 11 WARRANTIES .................................................................................................15 Section 11.1 No Liens ................................................... Error! Bookmark not defined.
Section 11.2 Warranty ...................................................................................................15 Section 11.3 Remedy for Breach of Warranty ..............................................................15 Section 11.4 No Implied Warranties .............................................................................15 ARTICLE 12 TITLE AND RISK OF LOSS ..........................................................................16 Section 12.1 Passage of Title ........................................................................................16 ARTICLE 13 INSURANCE .....................................................................................................16 Section 13.1 Contractor’s Insurance .............................................................................16 Section 13.2 Owner’s Insurance....................................................................................17 Section 13.3 Certificates ...............................................................................................17 Section 13.4 Notice of Cancellation ..............................................................................17 Section 13.6 Non-waiver ...............................................................................................17 Section 13.7 Right to Insure ..........................................................................................17 ARTICLE 14 DEFAULT AND TERMINATION .................................................................17 Section 14.1 Contractor Defaults ..................................................................................17 Section 14.2 Owner Defaults ........................................................................................18 Section 14.3 Cure of an Event of Default .....................................................................19 Section 14.4 Event of Default Remedies ......................................................................19 Section 14.5 Payments to Contractor Upon Termination .............................................19 ARTICLE 15 INDEMNIFICATION ......................................................................................20 Section 15.1 Mutual Indemnification ............................................................................20 Section 15.2 Indemnification Procedure .......................................................................21 ARTICLE 16 REPRESENTATIONS AND WARRANTIES ...............................................22 Section 16.1 Contractor .................................................................................................22 Section 16.2 Owner .......................................................................................................23 ARTICLE 17 CONFIDENTIALITY ......................................................................................24 Section 17.1 Confidentiality ..........................................................................................24 ATTACHMENT 2
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Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
Section 17.2 Publicity ...................................................................................................26 ARTICLE 18 DISPUTE RESOLUTION ...............................................................................26 Section 18.1 Dispute Resolution ...................................................................................26 Section 18.2 Mediation .................................................................................................26 Section 18.3 Arbitration ................................................ Error! Bookmark not defined.
Section 18.4 Governing Law .........................................................................................27 Section 18.6 Work to Continue .....................................................................................27 ARTICLE 19 MISCELLANEOUS .........................................................................................27 Section 19.1 Intellectual Property Rights; Work Product and Licenses .......................27 Section 19.2 Notice .......................................................................................................28 Section 19.3 Independent Engineer ...............................................................................29 Section 19.4 Independent Contractor ............................................................................29 Section 19.5 No Rights in Third Parties ........................................................................29 Section 19.6 Assignment ...............................................................................................29 Section 19.7 Incorporation by Reference ......................................................................29 Section 19.8 Entire Agreement .....................................................................................29 Section 19.9 Amendments.............................................................................................29 Section 19.10 Severability...............................................................................................29 Section 19.11 Drafting Ambiguities................................................................................30 Section 19.12 Right of Waiver ........................................................................................30 Section 19.13 Waiver of Breach .....................................................................................30 Section 19.14 Survival ....................................................................................................30 Section 19.15 Effectiveness ............................................................................................30 Section 19.16 Further Assurances ...................................................................................30 Section 19.17 Conflicting Provisions ..............................................................................31 Section 19.18 Captions ....................................................................................................31 Section 19.19 Counterparts .............................................................................................31 ATTACHMENT 2
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Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
LIST OF EXHIBITS2
Exhibit A Wire Transfer Instructions
Exhibit B Sales Tax Exemption Certificate (if applicable) Exhibit C Insurance Requirements
Exhibit D Rate Sheet
Exhibit E Purchase Order
2 NTD: Exhibit numbers to be adjusted at the end.
ATTACHMENT 2
A2-5
Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
MASTER SERVICES PURCHASE AGREEMENT
This MASTER SERVICES PURCHASE CONTRACT (this “ Agreement”) is made and entered into as of [______], 2022 (the “Effective Date ”) by and between Bur bank Water and 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”); WHEREAS, Owner and Contractor have entered or will enter into an Equipment Purchase Contract dated [ ] for the manufacture and delivery of Flow Battery System equipment (the “Equipment Purchase Contract”);
WHEREAS, Owner wishes to engage Contractor, and Contractor wishes to be engaged to perform certain services with respect to the Flow Battery System, including warranty services, and to perform the Work, all as more particularly set forth in this Agreement and Purchase Orders (defined below) issued by Owne r, on the terms and subject to the conditions of this Agreement and any Purchase Orders; and
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.
“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 and their location), the Project Site, all or any portion of the Project, the performance of the Work, this Agreement and each other document, instrument ATTACHMENT 2
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Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
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 17.17 .
“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 testing, maintenance or repair of the Flow Battery System or the performance of the Work and which make any of them materially more burdensome than the requirements specified in this Agreement, 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 13.2(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 services, financial, payment and business terms of all ATTACHMENT 2
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Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
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” 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 15.1. “Contractor Insurance” has the meaning set forth in Section 11.1. “Defect” means any non- conformance in the Work resulting from faulty design, workmanship, parts, material, manufacture, or services, 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 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 equipment to be provided by Contractor under the Equipment ATTACHMENT 2
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Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
Purchase Contract.
"Equipment Purchase Contract” has the meaning set forth in the Recitals. “Event of Default” means a Contractor Event of Default or an Owner Event of Default, as the case may be.
“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.
“Flow Battery System” means the flow battery energy storage system, consisting of the Equipment and the Owner -Furnished Equipment, as more fully described in the applicable Purchase Order.
“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 f oregoing 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 arising 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.
“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.
ATTACHMENT 2
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Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
“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, diligence 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 selected by Owner and subject to Contractor’s consent, such consent not to be unreasonably withheld. “Intellectual Property Rights ” means all licenses, trade secrets, copyrights, kn ow-how, patents, trademarks, proprietary information or other intellectual property rights of any kind necessary for the design, 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.
“Liability Cap” has the meaning set forth in Section 6.1. “License Agreement” has the meaning given in Section 15.1(a).
ATTACHMENT 2
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Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
“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 12.2. “Owner Permits ” means the Permits that Owner is required to secure and/or maintain relating to the ownership and operation of the Project. “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. “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. “Payment Schedule” means the payment schedule set forth in each Purchase Order. “Project” has the meaning set forth in the recitals.
"Project Representative” has the meaning with respect to Contractor or Owner, as applicable, in Section 4.3.
“Project Schedule” means the schedule (with reasonable detail, as applicabl e) set forth in each Purchase Order.
“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 a Purchase Order issued pursuant to Secti on 2.2 substantially in the form of Exhibit E.
“Receiving Party” has the meaning set forth in the definition of Confidential Information. “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 services to be performed by ATTACHMENT 2
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Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
Contractor as set forth in Purchase Orders executed by the Parties , and the performance of the Work hereunder.
“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 Jobsite 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 Jobsite.
“Taxes” means taxes, customs duties, fees, imposts, value-added taxes, sales or use taxes and similar governmental charges of any kind.
“Tests” means any tests of the Flow Battery System to be performed by Contractor pursuant to the Applicable Purchase Order.
“Warranty” has the meaning set forth in Section 9.2.
“Warranty Period” means the period of time during which the Warranty is in effect as set forth in the Applicable Purchase Order.
“Work” means the Tests and services, including with respect to warranty, 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; 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;
ATTACHMENT 2
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Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
(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 Not ice to Proceed Date, Contractor agrees to supply the Work specified in each Purchase Order executed by the Parties necessary or appropriate to perform the services specified in each Purchase Order in accordance with this Agreement and Applicable Law. Contractor acknowledges Owner’s reliance on Contractor’s expertise and agrees to provide Work that is reasonably inferable from the Work or this Agreement (but not specifically described).
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 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 ATTACHMENT 2
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Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
representative of the Owner and the Contractor.
Section 2.3 Cooperation with Owner and Others.
(a) Cooperation with Owner-Furnished Equipment Suppliers, Interconnection Utility, and Owner Contractors. Contractor shall cooperate as reasonably needed or requested by Owner with Owner and Owner -Furnished Equipment Suppliers , Interconnection Utility, Owner Contractors, Owner’s representatives and Owner’s counterparties working at the Project Site to coordinate Contractor’s performance of the Work with such other Persons. (b) Cooperation for Permitting. Contractor shall cooperate as reasonably needed or requested by Owner with Owner and government entities in support of Owner Permits on a time and materials basis at the rates set forth in Exhibit D. Contractor’s cooperation will include reviewing and reasonably assisting Owner on applications, providing supporting detail and appearing at public meetings.
Section 2.4 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.
Section 2.5 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 ret ention 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.
ARTICLE 3
CONTRACT PRICE AND PAYMENT TERMS
Section 3.1 Contract Price. T he 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, being referred to herein as the “ Contract Price”).
Section 3.2 Price Inclusive. The Contract Price includes payment for all materials, labor and services relating to Contractor’s performance of its obligations under this Agreement and the Work, excluding the foregoing, which shall be invoiced as a pass-through cost at the time incurred:
(a) sales or use taxes and all other applicable federal, state, and local taxes or ATTACHMENT 2
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Confidential
Contains trade secrets or commercial or financial information that is confidential and exempt from public disclosure.
licenses arising out of Contractor’s performance of the Work. 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;
(b) shipping transportation cost for any materials (“Shipping Costs ”) plus a
1.5% handling charge. Contractor shall provide a firm final price quotation for Shipping Costs to Owner approximately four weeks prior to ship date; and (c) travel and reasonable out of pocket costs, provided that travel time for billing commences on the day of travel and day of return to Portland, Oregon shall be by the shortest routing practical, and air travel shall be by premium economy or equivalent class of travel.
Section 3.3 Payment of Contract Price and Reimbursable Costs . Contrac tor shall be paid the Contract Price in accordance with the Payment Schedule.
Section 3.4 Invoicing and Payments . Contractor shall invoice Owner in accordance with the Payment Schedule set forth in the applicable Purchase Order. Each invoice shall include evidence satisfactory to Owner of the applicable item to be invoiced, including reasonable documentation for reimbursable costs where applicable. Owner shall be responsible for paying or causing to be paid all invoiced amounts that are not in dispute within thirty (30) days of Owner’s receipt of a properly documented invoice. All payments shall be made by wire transfer to the account listed in Exhibit A or to such other account as may be designated by Contractor to Owner in an invoice.
Section 3.5 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 19 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 two percent (2%) or (b) the maximum rate permitted by Applicable Law.
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 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 reasonable access to the Project Site on and after the Effective Date to enable Contractor to perform the Work; subject to Contractor agreeing to comply with Owner’s security and safety program; (c) cooperate and coordinate with Contractor in coordinating the work of Owner’s Contractors who may be working at or near the Project Site with the Work being ATTACHMENT 2
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performed by Contractor;
(d) obtain and provide to Contractor copies of the Owner Permits, if any, that Owner is required to secure, and maintain such Owner Permits as required during construction;
(e) cause any needed service for phone and data lines required for the SCADA System or similarly required facility control s ystem to be available at the Project Site (as identified in the Scope of Work);
(f) maintain the connection of the Interconnection Facilities to the Interconnection Point by the Interconnection Utility and cause the Interconnec tion Utility to provide electric power at the Interconnection Point and to accept electricity generated by the Project; and
(g) 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 design, construction or operation of the Project or the performance by Contractor of its obligations hereunder.
Section 4.3 Project Representative. Within ten (10) days following the Effective Date, each of the Parties shall designate, in a written notice to the other Party, a Representative who will have full responsibility to interface with the the other Party’s Representative and its respective representatives and delegates. A Party’s Representative shall act as the single point of contact in all matters relating to this Agreement on behalf of Owner, provided that the Contractor Representative shall not have the authority to amend this Agreement or any Purchase Order . A Party may, from time to time, designate a new Representative with written notice to the other Party.
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 Project 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;
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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); 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;
(d) 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 ten (10) 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, 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
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threatening life or property, Contractor shall not take action to effect or respond to a Change except pursuant to a written Change Order.
(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 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.
(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, in which event Contrac tor 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
RESERVE
ARTICLE 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 or include any liability arising out of Contractor’s fraud or willful misconduct, losses covered by insurance (including required payments of deductibles), and Contractor’s indemnity obligations pursuant to A rticle 13.
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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 fraud or willful misconduct, in no event shall Owner or Contractor be liable to the other for any special, exemplary, indirect or consequential damages, including lost profits, cost of capital, or loss of goodwill regardless of (i) whether such damages were foreseeable, (ii) whether or not the Party was advised of the possibility of such damages and (iii) 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 ext ent 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 ATTACHMENT 2
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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 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 12.5.
ARTICLE 9
WARRANTIES
Section 9.1 Warranty. Contractor warrants that the Work (as provided by Contractor, Subcontractors, and Suppliers) for the duration of the Warranty Period shall be performed in accordance with reasonable care and Applicable Law and shall conform in all material respects with the Scope of Work , the requirements of this Agreement, and the applicable Purchase Order (the “Warranty”). All Work that does not conform to the Warranty shall be considered faulty or defective and Contractor agrees to correct such Work. The Warranty Period for any Work required to be repaired, corrected or replaced (whether such item or part is repaired, corrected or replaced by Contractor or by Owner under Section 9.2) shall be extended from the time of such repair, correction or replacement for a period equal to the original remaining Warranty Period for such item or part.
Section 9.2 Remedy for Breach of Warranty. If the Warranty is breached, then Owner shall give written notice of the breach with reasonable promptness following Owner’s discovery thereof and in no event later than thirty (30) days after the expiration of the Warranty Period, and Contractor shall prom ptly commence to repair or replace the non -conforming Work or other materials, equipment or non-conforming workmanship, at the cost and expense of Contractor. The decision whether to repair or replace shall be made by Contractor, subject to the reasonable approval of Owner, and Contractor will not use a replacement part from a source other than the original equipment manufacturer or an alternative substitute material without Owner’s reasonable prior consent. THIS SECTION 9.2 SETS FORTH OWNER’S SOLE REMEDY AND CONTRACTOR’S ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THE WARRANTY.
Section 9.3 No Implied Warranties . THE WARRANTIES SET FORTH IN THIS
AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL WARRANTIES, EXPRESSED OR
IMPLIED, OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR 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, ATTACHMENT 2
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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 OR ARISING OUT OF ANY OF THE FOLLOWING:
(a) ORDINARY WEAR AND TEAR, IN THE OPERATION OF THE
FACILITY;
(b) ACCIDENT, MISUSE, ABUSE OR NEGLIGENCE BY INDIVIDUALS
OR ENTITIES OTHER THAN THE CONTRACTOR, ITS SUBCONTRACTORS AND SUPPLIERS;
(c) ALTERATIONS TO OR REPAIRS OF THE FLOW BATTERY
SYSTEM, 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 FLOW BATTERY SYSTEM, THE FACILITY OR THE EQUIPMENT IN ACCORDANCE WITH THE APPLICABLE MANUFACTURER’S OR OTHER REQUIREMENTS PROVIDED BY CONTRACTOR;
(e) THE OPERATION OF THE FLOW BATTERY SYSTEM, 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. Title to the Work or any part thereof shall pass to Owner upon the date payment for said materials, tools and supplies is made by Owner to Contractor.
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 under the most recently issued Purchase Order (as applicable) (except as otherwise specified below), Contractor shall procure and maintain, or require to be procured and maintained, ATTACHMENT 2
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the insurance set forth in Exhibit C-1 and identified therein as Contractor’s responsibility with one or more duly licensed insurance carrier(s) (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.
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 this Exhibit C-2, with the Contractor as named insured.
Section 11.3 Certificates. Each of the Par ties shall, not later than 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 11.1 and for which Owner is responsible as specified in Section 11.2.
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 Section
11.4, 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.
Section 11.5 Non-waiver. Failure of either Party to comply with the foregoing insurance requirements shall in no way waive its obligations or liabilities under this Agreement or the rights of a Party hereunder against the other Party.
Section 11.6 Right to Insure . Should a Party fail to provide or maintain any of th e insurance coverage required under this Section 11.6, 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 ATTACHMENT 2
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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 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 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 reasonably 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 reasonably 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 material 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 has no material adverse effect on Owner;
(c) A Bankruptcy Event of Default occurs with respect to Contractor; (d) 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 noti ce from Owner, provided, however, that if the fact, circumstance or condition that is the cause of the breach can be corrected but not reasonably 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 cause of such breach, such period shall be extended for such further period as shall be reasonably necessary for Contractor to diligently correct the same, and (ii) such cure removes any material adverse effect on Owner, or such fact, circumstance or condition demonstrably has no material adverse effect on Owner.
Section 12.2 Owner Defaults. The occurrence of any one or more of the following 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 fourteen (14) 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 ATTACHMENT 2
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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; or (d) Except as otherwise expressly provided for in this Section 1 2.2 , 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 , provided, however, that if the fact, circumstance or condition that is the cause of the breach can be corrected but not reasonably 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 cause of such breach, such period shall be extended for such further period as shall be reasonably necessary f or Owner to diligently correct the same, and (ii) such cure removes any material adverse effect on Contractor, or such fact, circumstance or condition demonstrably has no material adverse effect on Contractor.
Section 12.3 Cure of an Event of Default . An Event of Def ault 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 . 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 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. A Party in addition may exercise, enforce, pursue and realize on any and all other rights and remedies available to it under Applicable Law or under this Agreement.
Section 12.5 Payments to Contractor Upon Termination. In the event that 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 ATTACHMENT 2
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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 Jobs ite in a clean and safe condition as directed by Owner; and (iv) demobilization from the Project S ite; all as reduced by any amounts previously paid by Owner, and provided that Contractor has taken reasonable steps to mitigate such c osts to the extent reasonably practicable. Upon making such payment, Owner shall take title to all Work, and, thereafter, may finish the Work and complete the Project. 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.
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 13.1(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 ATTACHMENT 2
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adversely affects Owner’s continued use and enjoyment of the Project shall occur 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 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 foregoing 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 sel ect 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.
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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 liability 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 A rticle 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 (i) the Effective Date; and (ii) the Notice to Proceed Date 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 ATTACHMENT 2
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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 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. O wner hereby represents and warrants to Contractor as of (i) the Effective Date and (ii) the Notice to Proceed Date 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 . T he 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 ATTACHMENT 2
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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 enforce ability 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 feder al, 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 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 1 5.1 . The
Receiving Party shall be responsible to ensure that those individuals to whom it makes ATTACHMENT 2
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disclosure of Confidential Information as provided herein abide by the provisions of this Section 15.1. The Parties also agree that concurrently upo n 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 and between Owner and American Public Power Association (the “Grant Agreement”).
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 Requirements 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 1 5.1 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, tha t either Party may have to access Confidential Information pursuant 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 cor rect 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 ATTACHMENT 2
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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 disclose 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 Representatives 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 no t 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. 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.
Either Party shall send written notice to the other Party of any Dispute promptly after first becoming 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 Man agement 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 claim or 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 16.1, 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 ATTACHMENT 2
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the subject of the dispute and the relief requested. The venue of the mediation shall be in the State of California. The Parties 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 scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The Parties agree that the mediator’s fees and expenses will be shared equally between the Parties. The Parties further 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 inadmissible 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.
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 Final Completion, all in accordance with the terms of this Agreement.
ARTICLE 17
MISCELLANEOUS
Section 17.1 Intellectual Property Rights; Work Product and Licenses . As between Owner and Contractor, all drawings, plans, manuals, specifications, schematics, documentation and other tangible deliverables (“Deliverables ”) delivered to Owner by Contractor as part of the Work shall become the exclusive property of Owner upon payment therefor. Owner shall have the right to copy, modify, disclose, publish and distribute the Deliverables as it sees fit.
Section 17.2 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 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 indemnify 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 ATTACHMENT 2
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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 17.3 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 17.2(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 and Power
164 Magnolia Boulevard
Burbank, CA 91502
Attention: Mandip Samra
Email: [email protected]
For Contractor ESS Tech, Inc.
26440 SW Parkway Avenue, Building 83
Wilsonville, OR 97070
Attention: Legal
Email: [email protected]
(b) All legal notices, demands, claims and communications related to this Agreement (such as those related to ter mination, suspension, excusable delays, indemnification, disputes or assignment), shall be in writing and shall be deemed to be validly given to the addressees set forth by the means described in Section 17.2(a). (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 ATTACHMENT 2
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change shall not be invalidated by the change.
Section 17.4 Independent Engineer . Owner may engage an independent engineer to assist in the ongoing evaluation of the Work.
Section 17.5 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 17.6 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 17.7 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. (c) Null and Void. Any assignment not in conformity with this Section 17.6 shall be null and void.
Section 17.8 Incorporation by Reference . All exhibits attached to this Agreement are incorporated by reference herein and made a part hereof for all purposes.
Section 17.9 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 17.10 Amendments. This Agreement may be modified or amended only by a written instrument signed by the Parties.
Section 17.11 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 ATTACHMENT 2
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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 17.12 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 17.13 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 17.14 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 17.15 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 Arti cle 7, Article 9, Article 12, Article 13, Article 14, Article 15, Article 16, 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 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 17.16 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 17.17 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 ATTACHMENT 2
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intent of this Agreement.
Section 17.18 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 ”) and any one or more of the exhibits attached hereto and the Equipment Purchase Agreement, the terms of the Body of the Agreement shall control, with the exception of 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 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 s uch conflict or inconsistency.
Any conflict or inconsistency which cannot be resolved by the Parties shall be resolved in accordance with the provisions of Section 12.
Section 17.19 Captions. The captions contained in this Agreement are for convenience and reference on ly 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 17.20 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 APPA Grant Agreement and License Agreement. 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 shall comply with all provisions under the License Agreement applicable to Contractor.
Section 17.22 Obligation to Act in Good Faith. Unless expressly provided in this Agreement that a Party may act in its sole discretion, (i) the Parties shall act reason ably 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.
[signature page to follow]
ATTACHMENT 2
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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 2
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Exhibit A
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 2
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Exhibit B
Sales Tax Exemption Certificate
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Exhibit C-1
Contractor’s Insurance Requirements
Prior to the performance of any 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 ATTACHMENT 2
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be a separate policy if not included with Workers' Compensation coverage. 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’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 self -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. Cover age 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 ATTACHMENT 2
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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 Contractor, and shall insure against liability for death, bodily injury, or pr operty 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 ATTACHMENT 2
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3) A description of the coverages included under the policy.
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 t ime to time, as required. The Owner 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.
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EXHIBIT C-2
OWNER’S INSURANCE
Owner shall, at its sole cost, cause to be issued and maintain in force from Acceptance until expiry of the Warranty Period, to the extent commercially and practicably available, reasonable and customary (i) Workers’ Compensation Insurance, and (ii) Commercial General Liability Insurance, with Contractor as an additional insured.
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Exhibit D
Rate Sheet
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Exhibit E
Form of Purchase Order
PURCHASE ORDER
MASTER SERVICES PURCHASE AGREEMENT FOR THE FLOW BATTERY
ENERGY STORAGE FACILITY PROJECT BETWEEN BURBANK WATER & 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:
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