ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT合同范本

EX-10.1 2 dex101.htm ENGINEERING, PROCUREMENT AND CONSTRUCTION

AGREEMENT

Exhibit 10.1 FOIA CONFIDENTIAL TREATMENT REQUESTED

PORTIONS OF THE EXHIBITS HERETO MARKED BY *** HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT

FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

BETWEEN MIRANT MID-ATLANTIC, LLC & MIRANT CHALK POINT LLC (EACH INDIVIDUALLY AN “OWNER” AND COLLECTIVELY THE

“OWNERS”) AND MIRANT MID-ATLANTIC, LLC AS AGENT FOR THE

OWNERS

AND

STONE & WEBSTER, INC. (“CONTRACTOR”)

FOR

ENGINEERING, PROCUREMENT & CONSTRUCTION SERVICES

RELATING TO

AIR QUALITY CONTROL SYSTEMS

AT

MORGANTOWN GENERATING STATION,

DICKERSON GENERATING STATION AND

CHALK POINT GENERATING STATION

TABLE OF CONTENTS

P AGE 1.D EFINITIONS1

2.O WNER ENTITIES11

2.1M irant Mid-Atlantic, LLC11

2.2M irant Chalk Point, LLC11

2.3O wner’s Agent12

2.4O bligations12

3.E FFECTIVE DATE12

4.T ERM12

5.O WNER SCOPE12

5.1O wner Scope12

5.2G ypsum Dewatering Plant13

5.3S chedule for Owner Scope13

5.4N on-Interference and Safety15

6.P ROJECT SCOPE15

6.1W ork To Be Performed15

6.1.1L NTP for FGD Systems15

6.1.2I NTP for FGD Systems15

6.1.3N TP for FGD Systems15

6.1.4L NTP for SCR System16

6.1.5I NTP for SCR System16

6.1.6T ransition of SCR from Contractor to Owner16

6.1.7A pplication of Terms and Conditions16

6.2E ngineering/Design Services17

6.2.1T echnical Specifications17

6.2.2D esign Standards17

6.2.3D esign Documentation17

6.2.3.1S chematic Design Documents17

6.2.3.2P ermitting Documents18

6.2.3.3D esign Development Documents18

6.2.3.4A pproved Drawings19

6.2.3.5R ough Site Grading, Demolition and Relocation20

6.2.3.6I nterfaces and connections for the Gypsum Dewatering Plant22

6.2.3.7C ontractor’s Obligations under Section 6.2.3.622

6.3P rocurement Services23

6.3.1P rocurement of Systems Equipment and Construction Equipment23

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6.3.1.1T itle to Systems Equipment23

6.3.1.2R isk of Loss23

6.3.1.3S torage23

6.3.2P rocurement of Chemicals, Start-Up Spares and Consumables24

6.3.3I nspection and Testing of Materials and Systems Equipment24 6.4T ransportation Charges24 6.5C onstruction-Related Work24

6.5.1C learance of the Site (by Owner)24

6.5.2L abor and Personnel25

6.5.3C onstruction Utilities Interface25

6.5.4T esting25

6.5.5A s-Built Drawings25

6.5.6O peration and Maintenance Manuals25

6.5.7T urnover Package26

6.5.8C lean Up and Waste Removal26

6.5.9H azardous Substances26

6.5.10Q uality Assurance/Quality Control27 6.6G eneral28 6.7N on-Interference28 6.8S afety29

6.8.1C ontractor Responsibility29

6.8.2Fitness For Duty, Drug, Alcohol Abuse And Safety Policy For Access To Owner Facilities29

6.8.3A ccess To Owner Facilities30

6.8.4P rohibited Activities30

6.8.5S uspected Violation Of Policy30

6.8.6R efusal To Comply31

6.8.7P rotection31

6.8.8O SHA Compliance32

6.8.9M aterial Safety Data Sheets32

6.8.10D ust and Fume Control32

6.8.11W ater Pollution32

6.8.12O perating Environment32

6.8.12.1G enerating Sites32

6.8.12.2E lectrical System33

6.9O perating Utilities Interface33

6.10O wner’s Right to Inspect, Stop and Re-Perform Work33

6.10.1O wner’s Right to Attend Contractor Inspections33

6.10.2I nspection and Re-Performance33

7.P ERFORMANCE GUARANTEES33

7.1I nput Guarantees for FGD Systems33

7.1.1G uaranteed Consumption Levels33

7.1.2C onsumption Within Engineering Design Margins34

7.1.3C onsumption Outside Engineering Design Margins34

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7.1.4L iquidated Damages for Input Guarantees for FGD Systems34

7.1.4.1P ower Consumption34

7.1.4.2M ake-Up Water Consumption34

7.1.4.3L imestone Consumption34

7.2O utput Guarantees for FGD Systems34

7.2.1L ist of Output Guarantees34

7.2.2C orrection by Contractor35

7.2.3M ercury Removal35

7.3O perational Guarantees for FGD Systems36

7.3.1L ist of Operational Guarantees36

7.3.1.1M inimum Turndown Capability36

7.3.1.2M aximum Entrained Moisture Carryover36

7.3.1.3F an Characteristics36

7.3.1.4P ressure Drop36

7.3.2C orrection by Contractor36

7.4B lank36

7.5B lank36

7.6B lank36

7.7P erformance Testing36

7.7.1P erformance Testing36

7.8C oncurrent Obligations37

8.P ROJECT SCHEDULE; SCHEDULE GUARANTEES37

8.1P roject Schedule37

8.1.1G uaranteed Provisional Acceptance Date38

8.1.2C onditions for Outages38

8.1.3O utage Start and End Dates38

8.1.4B lank38

8.1.5C oncurrent Outages38

8.1.6I mmovable Milestones39

8.2S chedule Guarantee39

8.2.1W ork Progress and Completion39

8.2.1.1G eneral39

8.2.1.2M aximum Outage Period39

8.2.1.2.1A mounts Reasonable40

8.2.1.2.2B onus for Early Completion41

8.2.1.2.3P ayment of Excessive Outage Payments41

8.2.2G uaranteed Provisional Acceptance Date41

8.2.3L ate Provisional Acceptance Payments41

8.2.3.1B efore 23:59 on December 31, 2009 for the FGD Systems41

8.2.3.2A fter 23:59 on December 31, 2009 for FGD Systems42

8.2.3.3B lank42

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8.2.3.4R educed Late Provisional Acceptance Payments Period42

8.2.3.5A mounts Reasonable43

8.2.3.6P ayment of Late Provisional Acceptance Payments43

8.2.4G uaranteed Substantial Completion Date44

8.2.4.1L ate Substantial Completion Payments44

8.2.4.2A mounts Reasonable and Exclusive Remedy for Delay44

8.2.4.3P ayment of Late Substantial Completion Payments44

8.2.5G uaranteed Final Completion Date45

8.2.6L ate Final Completion Payments45

8.2.6.1A mounts Reasonable and Exclusive Remedy for Delay45

8.2.6.2P ayment of Late Final Completion Payments45

8.2.7F ull Program Completion46

8.2.8R eduction of Liquidated Damages Based on Delayed Permitting46

8.3S chedules47

8.3.1S chedule Software47

8.3.2A ctivity Coding47

8.3.3L evel 3 Detail47

8.3.4S chedule Updates47

8.4W ork Operations47

8.5R ecovery Schedule48

8.6C ritical Schedule Situation48

8.7C ontractor Responsible for Schedule48

9.K EY PERSONNEL REQUIREMENTS48

9.1P ersonnel Resources48

9.1.1K ey Personnel48

9.1.2D eparture of Key Personnel49

9.1.3A ssignment of Key Personnel49

9.1.4R eplacement of Key Personnel49

9.1.5K ey Personnel of Subcontractors50

9.2C ontractor Personnel Transition Plan50

9.2.1N otice of Departure of Key Personnel50

9.2.2M utual Agreement50

9.3I ndependent Contractor: Employees51

9.4A pplicable Time Period51

10.T ARGET COST51

10.1F acility Target Cost51

10.2C alculation of Contractor’s Actual Cost51

10.2.1C ategories of Costs51

10.2.2A ctual Home Office Labor Costs52

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10.2.3A ctual Field Non-Manual Labor Costs52

10.2.4A ctual Self-Performed Field Manual Services Cost52

10.2.5A ctual Third Party Expenses53

10.2.6S elling, General and Administrative Expenses53

10.2.7S eparate Accounts54

10.3C ap on Contractor’s Total Engineering Hours54

11.P RICE54

11.1E PC Total Compensation54

11.2P roject Compensation54

11.3G uarantee Costs54

11.3.1C lassification of Guarantee Costs54

11.3.2T reatment of Guarantee Costs55

11.4I ncentives56

11.4.1B lank56

11.4.2P erformance Incentives56

11.4.2.1E arly Completion of Work During Planned Outages56

11.4.2.2S afety, Schedule and Quality Incentive56

11.5A llocable Costs58

11.5.1S ections Addressing Allocable Costs58

11.5.2T reatment of Allocable Costs58

11.6U nderrun Bonus58

12.P AYMENT TERMS59

12.1P ayments Generally59

12.1.1O wner Shall Pay Contractor EPC Total Compensation59

12.1.2M ilestone-based, Guarantee and Final Payments59

12.1.3N TP Milestone Payment59

12.2M ilestone Progress Payments59

12.2.1A pproved Final Milestone Payment Schedule59

12.2.2M ilestone Progress Payments59

12.2.3P artial Payment Requests60

12.2.4V alid Payment Requests61

12.2.5D ocumentary Evidence of Achieving Milestone61

12.2.6O wner Review61

12.2.7P ayment of Milestone Payment shall not constitute approval or 61

acceptance of Work by Owner

12.3Q uarterly Reconciliation61

12.3.1T iming of Quarterly Reconciliation61

12.3.2S cheduled Milestone61

12.3.3I ncomplete Milestone62

12.3.4Q uarterly Reconciliation Ratio62

12.3.5Q uarterly Actual Cost and Disputed Costs62

12.3.6R econcilable Cost62

12.3.7Q uarterly Milestone Payment Cost62

12.3.8Q uarterly Benchmark Cost62

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12.3.9P erformance of Reconciliation63

12.3.9.1E xcess Payment63

12.3.9.2P ayable Cost63

12.3.10R econcilable Cost greater than Quarterly Benchmark Cost63

12.3.10.1S upplemental Contingency Draw Request63

12.3.10.2Difference between Quarterly Milestone Payment Cost and Quarterly Benchmark Cost63

12.3.11C arryover Cost64

12.3.12N TP Milestone Payment added to Quarterly Actual Cost in 13th month64 12.4B lank64 12.5L ate Payment Interest64 12.6C ontingency64

12.6.1Q uarterly Contingency Allowance Limit64

12.6.2C ontingency Draw Request64

12.6.3C ontingency Draw Notification65

12.6.4O wner Approval of Contingency Draw Request65 12.7P urpose of Quarterly Reconciliation Process65 12.8R etention65 12.9E ffect of Change Order on Approved Final Milestone Payment Schedule66 12.10C onditions of Payments; Withholdings, Set-Offs66

12.10.1M aterial Breach66

12.10.2R equired Submittals66

12.10.2.1P rogress Reports66

12.10.2.2P artial Lien Waivers66

12.10.2.3F ull Lien Release66

12.10.2.4F orm of Waivers and Releases67

12.10.2.5L ien Bonds67

12.10.3W ithholding to Protect Owner from Loss67

12.10.3.1Owner may withhold or retain any Milestone Progress Payment, payment or part67 12.10.3.1.1C ontractor Event of Default67

12.10.3.1.2L ien or Charge Not Discharged67

12.10.3.1.3W ork Performed by Owner68

12.10.3.2L ien Bonds68

12.10.3.3P ayment after Removal of Cause68

12.10.4S et Off68

12.11F inal Payment for Target Work at Each Facility68

12.11.1O pen Book Basis Showing Actual Costs68

12.11.2T arget Final Payment69

12.11.3T arget Final Payment Documentation69

12.11.3.1F inal lien waiver69

12.11.3.2A s-Built Drawings69

12.11.3.3O perating manuals69

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12.11.3.4W arranty documents69

12.11.3.5B ack-charges and/or claims satisfied69

12.11.3.6Q uality and reliability requirements69

12.11.3.7N onconformance items69

12.11.3.8S pare parts list69

12.11.3.9M ill certifications69

12.12L iens After Final Payment69

12.13P ayment of Guarantee Costs70

12.13.1S eparate Accounting70

12.13.2P rior to Target Final Payment70

12.13.3A fter Target Final Payment70

13.P RICING METHOD70

13.1B lank70

13.2T arget Price Method70

14.W ARRANTIES71

14.1P arts and Labor Warranties71

14.1.1W arranties71

14.1.2P arts and Labor Warranty Period72

14.1.3C onditions and Limitations of Warranty72

14.1.4R epair of Defects72

14.1.5P arts and Labor Warranty Period Extension73

14.1.5.1E xtension for Corrected Work73

14.1.5.2E xtension for Total Shutdown73

14.2B lank73

14.3A ggregation of Warranties and Specific Time Limitation73

14.4N o Other Warranties/Obligations74

15.S TANDARDS OF PERFORMANCE74

16.M ECHANICAL COMPLETION74

16.1M echanical Completion74

16.2N otice and Achievement of Mechanical Completion for Each System75

17.P ROVISIONAL ACCEPTANCE/SUBSTANTIAL COMPLETION75

17.1C riteria for Provisional Acceptance of FGD System75

17.2C riteria for Substantial Completion of FGD System76

17.3N otice and Report of Provisional Acceptance for Each System76

17.4A chievement of Provisional Acceptance of the Work76

17.5C reation of Punch-List77

17.6N otice and Report of Substantial Completion for Each System77

17.7A chievement of Substantial Completion of the Work77

17.8T ransfer of Possession and Control of the Systems to Owner78

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18.F INAL COMPLETION78

18.1R equirements78

18.2N otice and Report of Final Completion79

18.3A chievement of Final Completion79

19.C HANGE ORDERS79

19.1C hanges79

19.2P rocedure for Changes79

19.2.1C hanges Initiated by Contractor79

19.2.2C hanges Initiated by Owner80

19.2.3C hange in Cost Element and Fee Element80

19.3C hange Order Due to Force Majeure Event80

19.4C hange Order Due to Suspension of Work by Owner81

19.5C hange Order Due to Differing Site Conditions81

19.6C hange Order Due to Pre-Existing Hazardous Substances81

19.7C hange Order Due to Actions of Owner81

19.8B lank82

19.9C hange Order Due to Changes in Applicable Law82

19.10Change Order Due to Escalation in Actual Self-Performed Field Manual

Services Cost82

19.11Change Order Due to Escalation in Home Office Labor Costs and Actual Field

Non-Manual Labor Costs83

19.12C hange Order Due to Escalation of Commodities83

19.13C hanges Involving Schedule Extensions83

19.14C hanges to the Contract Price83

19.15C ontinued Performance Pending Resolution of Disputes84

19.16O wner’s Right to Offset Changes85

19.17O ther Work on Site85

20.F ORCE MAJEURE85

20.1F orce Majeure85

20.2B urden of Proof86

20.3O bligations Excused86

20.4C osts86

21.A GGREGATE LIABILITY86

21.1A ggregate Liability86

21.2S ub-limits of Liability86

21.2.1L iquidated Damages and Warranty Work87

21.2.2S ystems Equipment Subcontractors87

21.2.3O ther Subcontractors87

21.2.4F acility Limits88

21.3P ursuit of Subcontractor Warranties88

21.4C onsequential Damages88

21.5C onsequential Damages for Subcontractors88

21.6I ndemnity for Lessor Claims89

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22.S ECURITY89

22.1C ontractor’s Parent Company Guarantee89

22.2C ontractor’s Letter of Credit89

22.3P erformance Bond and Payment Bond90

22.4O wner Security90

23.S USPENSION AND TERMINATION91

23.1R ight to Stop Work for Cause91

23.2R ight to Suspend Work for Convenience92

23.3S uspension by Contractor92

23.4T ermination by Owner for Convenience92

23.4.1R ight to Terminate92

23.4.2T ermination Payment92

23.4.3W ithholding/Conditions Precedent93

23.4.4R eturn of Security93

23.5T ermination by Owner for Cause93

23.5.1I nsolvency94

23.5.2D elay After Provisional Acceptance94

23.5.3K ey Personnel94

23.5.4M aterial Breach94

23.6A ctions Upon Termination94

23.7S urvival94

24.A SSIGNMENT94

25.I NSURANCE95

25.1C ontractor’s Insurance95

25.1.1C asualty Insurance95

25.1.1.1C ommercial General Liability Insurance95

25.1.1.2B usiness Automobile Liability Insurance96

25.1.2W orkers’ Compensation and Employer’s Liability Insurance96

25.1.3C ontractor’s Property96

25.1.4T ransit Insurance96

25.1.5O ther Insurance97

25.1.5.1I nternational Insurance97

25.1.5.2D ifferences in Condition Policy97

25.1.6G eneral Insurance Conditions97

25.1.7O ther Duties, Representations, and Obligations97

25.1.7.1C ertificates of Insurance97

25.1.7.2V iolation of Insurance Terms98

25.1.7.3F ailure to Maintain Insurance98

25.1.7.4N o Waiver of Liability98

25.1.7.5A dditional Insurance98

25.1.7.6P remium Audit98

25.1.8S ubcontractor’s Insurance98

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25.1.8.1L evels of Coverage98

25.1.8.2W aiver of Rights99

25.2.O wner’s Insurance99

25.2.1B uilder’s All Risk99

25.2.2E xclusion from Builder’s Risk99

25.2.3C ontractor Compliance99

26.T IME99

27.T AXES100

27.1T axes100

27.2S ales Taxes100

27.3P roperty Taxes100

28.I NDEMNIFICATION100

28.1P roperty Damage100

28.2L imitation on Property Damage Indemnification101

28.3R oyalties and License Fees101

28.4O peration of Systems101

28.5N o Liens or Encumbrances101

28.6C ontractor’s Indemnities for Personal Injury or Property Damage101

28.7O ther Contractor’s Indemnities102

28.8N o Limitation to Workers’ Benefits102

29.G OVERNING LAW102

30.P ERMITTING102

30.1R esponsibility for Permitting102

30.1.1O wner’s Permits Required for Construction103

30.1.2P ermission to Begin Installation of Pilings103

30.2O ther Permits103

31.S ITE CONDITIONS103

31.1G eotechnical Study103

31.2S pecial Site Characteristics103

31.3C ontractor’s Knowledge of Conditions103

31.4S ub-Surface Site Conditions104

32.S UBCONTRACTORS104

32.1A pproved Subcontractors104

32.2S ubcontractor and Vendor Identification104

32.3S ubstitute Contractors104

32.4P urchase Orders and Subcontracts104

32.5S ubcontractor Warranties105

32.6S ubcontractor Insurance105

32.7N o Privity with Subcontractors105

32.8A ssignment of Subcontracts to Owner106

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32.9D irected Payments106

32.10N eglect to Pay106

33.D ISPUTE RESOLUTION106

33.1A pplicability of Resolution Procedures106

33.2M anagement Discussions106

33.3M ediation107

33.4A rbitration107

33.5D ispute Review Board108

33.6O bligations Continue108

33.7I njunctive Relief109

33.8S urvival109

34.M ISCELLANEOUS109

34.1A udit and Maintenance of Records109

34.2R ights to Work Product109

34.2.1D eliverables109

34.2.2L icense109

34.2.3R euse109

34.3C ompliance with Laws110

34.3.1F amiliarity with Laws110

34.3.2N o Fees or Commissions110

34.4A uthorized Representatives110

34.5C onfidentiality110

34.5.1C onfidential Information110

34.5.2N ondisclosure111

34.5.3C ompelled Disclosure111

34.5.4U se Restrictions111

34.6O wner Caused Project End Suspension and Other Owner Caused Event111

34.7N otices112

34.8R elationship of the Parties113

34.9A mendments114

34.10N o Third Party Beneficiaries114

34.11P riority Among Contract Documents114

34.12S everability114

34.13R emedies114

34.14N onwaiver114

34.15I nterpretation114

34.16E ntire Agreement115

34.17R epresentations and Warranties of Contractor115

34.17.1D ue Organization of Contractor115

34.17.2D ue Authorization of Contractor, Binding Obligation116

34.17.3N on-Contravention116

34.17.4R egulatory Approvals116

34.18R epresentation and Warranties of Owner116

34.18.1D ue Organization of Owner116

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34.18.2D ue Authorization of Owner; Binding Obligation116

34.18.3N on-Contravention116

34.19F urther Assurances117

34.20N o Implied Waiver117

34.21E xhibits and Schedules117

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TABLE OF EXHIBITS

EXHIBIT

NUMBER TITLE

1 FGD Technical Specification

2 FGD Division of Responsibility

3 Intentionally Omitted

4 Permitting Division of Responsibility

5 Intentionally Omitted

6 Performance Guarantees and Test Methods

7 Key Personnel

8 Cost Submitted with Proposal

8 A Detailed Cost Summary

8 B Details of Cost

8 C Contractor’s Technical and Commercial Clarification/Exceptions

8 D Rate Sheet

8 E Intentionally Omitted

8 F Escalation of Commodities

9 Progress Milestone Payments

10 Applicable Codes and Standards

11 Letter of Credit

12 Payment Bond and Performance Bond

13 Agency Letter

14 Intentionally Omitted

15 Draft Project Schedule

16 Forms for Lien Waivers and Releases

17 Dispute Resolution Board Procedure

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

THIS ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT is made this 30th day of July, 2007, by and between MIRANT MID-ATLANTIC, LLC , a Delaware limited liability company, and MIRANT CHALK POINT, LLC , a Delaware limited liability company (each individually an “Owner” , or collectively, “Owners” as further described in Sections 2.1 and

2.2), MIRANT MID-ATLANTIC, LLC as agent for the Owners, and STONE & WEBSTER, INC. ,

a Louisiana corporation ( “Contractor” ).

NOW, THEREFORE, for and in consideration of the mutual covenants set forth in this Agreement, the Parties agree as follows:

1. DEFINITIONS

1.1 “Actual Cost” is the sum of all actual costs for performing the Work as described in Section 10.

2.

1.2 “Actual Field Non-Manual Labor Costs” has the meaning set forth in

Section 10.2.3.

1.3 “Actual Home Office Labor Costs” has the meaning set forth in Section 10.

2.2.

1.4 “Actual Self-Performed Field Manual Services Costs” has the meaning set forth in Section 10.

2.4.

1.5 “Actual Third Party Expenses” has meaning set forth in Section 10.

2.5.

1.6 “Agreement” means this Engineering, Procurement and Construction Agreement, consisting of Articles 1 through 34, and Exhibits 1, 2, 4, 6 through 13, 15 through 17.

1.7 “Alliance Agreement” means the agreement between Owner and Contractor dated July 11, 2006 pursuant to which preliminary Work has been performed as authorized by Owner through the issuance of LNTP and INTP.

1.8 “Allocable Costs” has the meaning set forth in Section 11.5.1.

1.9 “Applicable Laws” means all laws, statutes, ordinances, rules, regulations, judgments, interpretations, policies and orders of any court, arbitrator or governmental agency or authority having or asserting jurisdiction over the Facility, the Site, the Systems or the performance of the Work, as may be in effect from time to time.

1

1.10 “Applicable Permits” means all valid waivers, franchises, variances, permits, authorizations, licenses or orders of or from any governmental body, agency, authority, court or other body having jurisdiction over the Facility, the Site, the Systems or the performance of Work that are required, necessary or desirable to be obtained or maintained in connection with the Project.

1.11 “Approved Final Milestone Payment Schedule” has the meaning set forth in Section 1

2.2.1.

1.12 Blank

1.13 “Approved Project Schedule” has the meaning set forth in Section 8.1.

1.14 “Approved Subcontractor List” has the meaning set forth in Section 10.

2.5.

1.15 “As-Built Drawings” means drawings which are revised to show all modifications and revisions made by the Contractor (including all Subcontractors to the Contractor) up to Final Completion, for all key drawings which are necessary for the Owner’s continued operation,

maintenance, and regulatory compliance for the Project. The final list of As-Built Drawings is listed in Exhibit 1.

1.16 “Authorized Representative” has the meaning set forth in Section 34.4.

1.17 “Baseline Commodity Index Price” for an individual Commodity means the PPI Index Price for that Commodity as provided in Exhibit 8F.

1.18 “Business Day” means a calendar day other than Saturday, Sunday or a national holiday. As used in Section 17.5, ―Business Day‖ also excludes a holiday recognized and followed in the State of Maryland.

1.19 “Chalk Point”means the power station known as ―Chalk Point Plant‖ located at 25199 Chalk Point, Aquasco, MD 20608 consisting of Units E1 and E

2.

1.20 “Change” means (i) any addition to, deletion from, suspension of or other modification to the quality, function, intent, quantity, method or entity performing the Work, including without limitation any such addition, deletion, suspension or other modification that requires a change in the Contract Price or the Approved Project Schedule, or (ii) any extension of the Approved Project Schedule or increase in the Contract Price.

1.21 “Change in Applicable Law” has the meaning set forth in Section 19.9.

1.22 “Change Order” has the meaning set forth in Section 19.1.

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1.23 “Change Order Notice” has the meaning set forth in Section 19.

2.1.

1.24 “Change Order Request” has the meaning set forth in Section 19.

2.2.

1.25 “Confidential Information” has the meaning set forth in Section 34.5.

1.26 “Construction Equipment” means the equipment, materials, tools and supplies which are to be provided by Contractor and used in the performance of the Work, but which are not incorporated into or become a part of the Systems.

1.27 “Commodities” has the meaning set forth in Exhibit 8F.

1.28 The “Contingency” is an amount equal to ten percent (10%) of the Target Cost at issuance of NTP for that Facility. References to ―50% Contingency ‖ mean an amount that equals one-half of the Contingency amount.

1.29 “Contract Documents” means this Agreement and the Drawings, as either of these may be supplemented or amended.

1.30 “Contract Price” has the meaning set forth in Section 13.

2.

1.31 “Contractor” has the meaning set forth in the preamble of this Agreement.

1.32 “Contractor Event of Default” has the meaning set forth in Section 23.5.

1.33 “Contractor’s Additional Direct Costs or Savings” has the meaning set forth in Section 19.14.3.

1.34 “Critical Schedule Situation” has the meaning set forth in Section 8.6.

1.35 “Dedicated” has the meaning set forth in Section 9.1.1.

1.36 “Deliverables” has the meaning set forth in Section 34.

2.1.

1.37 “Design Development Documents” has the meaning set forth in Section 6.

2.

3.3.

1.38 “Dickerson”means the power station known as ―Dickerson Plant‖ located at 21200 Martinsburg Road, Dickerson, MD 20842 consisting of Units D1, D2 and D3.

1.39 “Direct Cause” or “Directly Cause(d)” means a cause that naturally brings about a delay or Direct Cost without intervention of any new and independent cause, and without which the delay would not have occurred or the Direct Cost would not have been incurred.

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1.40 “Direct Cost” means an actual cost necessarily incurred by Contractor in performing the Work, that is substantiated by written invoices, payment applications, time sheets, or other reasonable documentation, that is paid for Actual Third Party Expenses, Actual Field Non-Manual Labor, Actual Self-Performed Field Man ual Services, or engineering services by Contractor’s employees, or for costs of repair or replacement of Construction Equipment or Systems Equipment and that is not reimbursed by proceeds of insurance.

1.41 “Disclosing Party” has the meaning set forth in Section 34.5.1.

1.42 “Disputes” has the meaning set forth in Article 33.

1.43 “Drawings” has the meaning set forth in Section 6.

2.

3.

4.

1.44 “DRB” is the Dispute Review Board referred to in Section 33.5.

1.45 “Effective Date” has the meaning set forth in Article 3.

1.46 “Engineering Design Margins” has the meaning set forth in Section 7.1.1.

1.47 The “EPC Total Compensation” is the total compensation to be paid by the Owner to the Contractor for proper performance of all of the Work and shall be calculated pursuant to Article 11.

1.48 “Equivalent Availability Guarantee” has the meaning set forth in Section 1.2 of Exhibit 6.

1.49 “Escalation Report” has the meaning set forth in Section 19.10.

1.50 “Excessive Outage Payments” has the meaning set forth in Section 8.

2.1.2.

1.51 “Extended Warranty Equipment” is the booster fans, absorber vessel (materials, internals and internal piping), spray nozzles, agitator, ball mill and recycle pumps.

1.52 “Facilities” means the Morgantown, Chalk Point and Dickerson power stations.

1.53 “Facility” means either Chalk Point, Dickerson or Morgantown, as the context requires.

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1.54 “Fee” means the Target Fee.

1.55 “Fee Element” has the meaning set forth in Section 19.

2.

3.2.

1.56 “FGD System” means the total equipment, materials, tools and supplies supplied by Contractor for each fully operable flue gas desulfurization unit as described in Exhibit 1, including the associated balance of plant ( “BOP” ) required to meet the Input Guarantees, Output Guarantees and Operational Guarantees applicable to an FGD System under Article 7.

1.57 “FGD Subcontractor” means the Subcontractor supplying the FGD System.

1.58 “Final Completion” has the meaning set forth in Section 18.1.

1.59 “Financing Parties” means any and all lenders providing the construction, interim or long-term financing for the Project, their successors and assigns, and any trustee or agent acting on their behalf.

1.60 “Force Majeure” has the meaning set forth in Section 20.1.

1.61 “Geotechnical Study” has the meaning set forth in Section 31.1.

1.62 “Guarantee Costs” has the meaning set forth in Section 11.3.

1.63 “Guaranteed Final Completion Date” has the meaning set forth in Section 8.

2.5 and shall be the date set forth in the Approved Project Schedule.

1.64 “Guaranteed Provisional Acceptance Date” has the meaning set forth in Section 8.

2.2 and shall be the date set forth in the Approved Project Schedule.

1.65 “Guaranteed Substantial Completion Date” has the meaning set forth in Section 8.

2.4 and shall be the date set forth in the Approved Project Schedule.

1.66 “Gypsum Dewatering Plant” has the meaning set forth in Section 5.1.5.

1.67 “Hazardous Substance” means any and all chemicals, constituents, contaminants, pollutants, materials, and wastes and any other carcinogenic, corrosive, ignitable, radioactive, reactive, toxic or otherwise hazardous substances or mixtures (whether solids, liquids, or gases), or any similar substances now or at any time before Final Completion subject to regulation, control, remediation or otherwise addressed under Applicable Laws, including but not limited to those Applicable Laws relating to the discharge, emission, spill, release, or threatened release into the environment or relating to the disposal, distribution, manufacture, processing, storage, transport, treatment or other use of such substances.

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1.68 “Incremental Payment Amount” has the meaning set forth in Section 1

2.2.1.

1.69 “Incremental Percentage” means the Incremental Percentage identified for a Milestone in the Approved Percentage Milestone Payment Schedule as set forth in Exhibit 9.

1.70 An “Initial Performance Test” is the first occurrence of Performance Test PA, the first occurrence of Performance Test 1, or the first 180 days of Performance Test 2, all as referred to in Exhibit 6.

1.71 “Input Guarantee” has the meaning set forth in Section 7.1.

1.72 “INTP” means the Intermediate Notice to Proceed for FGD System set forth in Section 6.1.

2.

1.73 “INTP for SCR” means the intermediate notice to proceed for the SCR system as set forth in Section 6.1.5.

1.74 “INTP Security” means the letter of credit posted by Contractor in a form and by an issuing bank acceptable to Owner, in the amount equal to the sum of the purchase orders issued by Owner at LNTP and INTP.

1.75 “Key Personnel” has the meaning set forth in Section 9.1.1.

1.76 “Late Final Completion Payments” has the meaning set forth in Section 8.

2.6.

1.77 “Late Provisional Acceptance Payments” has the meaning set forth in

Section 8.2.3.

1.78 “Letter of Credit” shall have the meaning as set forth in Section 2

2.2 and 22.4.

1.79 “LNTP” means the Limited Notice to Proceed for the FGD Systems as set forth in Section 6.1.1.

1.80 “LNTP for SCR” means the limited notice to proceed for the SCR System as set forth in Section 6.1.4.

1.81 “LNTP Security” means the letter of credit posted by Contractor in a form and by an issuing bank acceptable to Owner, in the amount equal to the purchase order issued by Owner for the Work to be performed during the LNTP phase.

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1.82 “Lost Time Incident Rate” means the number of lost time incidents divided by manhours worked multiplied by two hundred thousand (200,000).

1.83 “Mechanical Completion” has the meaning set forth in Section 16.1.

1.84 “Milestone” means a portion of the Work identified in the Approved Final Milestone Payment Schedule, and for which a related Incremental Payment Amount has been established.

1.85 “Milestone Progress Payment” has the meaning set forth in Section1

2.2.2.

1.86 “Morgantown” means the power s tation known as ―Morgantown Plant‖ located at 12620 Crain Highway, Newburg, MD 20664 consisting of Units F1 and F

2.

1.87 “Notice of Final Completion” has the meaning set forth in Section 18.

2.

1.88 “Notice of Mechanical Completion” has the meaning set forth in Section 16.

2.

1.89 “Notice of Project Completion” has the meaning set forth in Section 8.

2.7.

1.90 “Notice of Provisional Acceptance” has the meaning set forth in Section 17.3.

1.91 “Notice of Substantial Completion” has the meaning set forth in Section 17.6.

1.92 “NTP” means the notice to proceed for the FGD Systems set forth in Section 6.1.3.

1.93 “Open Book” means that Contractor will maintain and make all of its books, records, schedules, logs and electronic communications and data related to the Work available to Owner to substantiate and document the design, pricing, progress and sequencing of the Work and costs and other expenses incurred or expected to be incurred in connection with performing the Work.

1.94 “Operational Guarantees” has the meaning set forth in Section 7.3.1.

1.95 “Output Guarantees” has the meaning set forth in Section 7.

2.1.

1.96 “Owner” has the meaning set forth in Sections

2.1 and 2.2 of this Agreement.

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1.97 “Owner Agent” has the meaning set forth in Sections

2.1 and 2.3 of this Agreement.

1.98 “Owner Scope” has the meaning set forth in Section 5.1.

1.99 “Owner Security” has the meaning set forth in Section 2

2.4.

1.100 “Owner’s Separate Contractors” means contractors hired by Owner to perform work in connection with a Facility, not including Contractor.

1.101 “Parties” means Owner and Contractor.

1.102 “Parts and Labor Warranties” has the meaning set forth in Section 14.1.1.

2.

1.103 “Parts and Labor Warranty Period” has the meaning set forth in Section 14.1.

2.

1.104 “Performance Guarantees” has the meaning set forth in Article 7.

1.105 ―Performance Incentives ‖ has the meaning set forth in Section 11.4.

2.

1.106 “Performance Test PA” means the Performance Test for Provisional Acceptance referred to in Section One of Exhibit 6.

1.107 “Performance Test 1” means the Performance Test 1 referred to in Section One of Exhibit 6.

1.108 “Performance Test 2” means the Equivalent Availability Test referred to in Section One of Exhibit 6.

1.109 “Performance Tests” has the meaning set forth in Section 7.7.1.

1.110 “PPI Index Price” means the unit price for a Commodity as reported in the applicable publication of the United States Bureau of Labor Statistics, effective as of the date that the firm price is established for purchase of the Commodity by Contractor.

1.111 “Progress Report” means a progress report containing the following information: (i) description of Contractor’s and all Subcontractors’ activities and progress on the Work completed to the date of such report, including but not limited to a comparison of such progress with the Approved Project Schedule, (ii) an identification and evaluation of any problems or deficiencies in the Work, (iii) the status of all deliveries of Systems Equipment, and (iv) a forecast of the Work to complete.

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1.112 “Project” means the complete design, engineering, procurement, permitting, construction, installation, initial performance tests, commissioning, start-up and completion of the Systems for the Facilities by Contractor on a turn-key basis in accordance with the Contract Documents, excluding only the Owner Scope.

1.113 “Project Compensation” is the amount calculated pursuant to Section 13.

2.2.

1.114 ―Provisional Acceptance ‖ has the meaning set forth in Section 17.1.

1.115 “Prudent Electrical Practices” means the use of, and adherence to, equipment, practices and methods of applicable United States of America industry codes, standards and regulations, required, necessary or desirable to protect the Systems, the Facility and Owner’s employees, agents, and customers from electrical malfunctions, as embodied in the National Electric Code.

1.116 “Prudent Utility Practices” means the practices, methods, materials, supplies and equipment that are commonly used in the United States of America electric power production industry to design, construct and operate power plants and related equipment (including equipment such as the Facility and the Systems) or any practices, methods and acts, which in the exercise of reasonable judgment in light of the facts known at the time, could have been expected to be used to accomplish the desired result to the specified standards and at the lowest reasonable cost consistent with good business practices, reliability, safety and expedition.

1.117 “Punch-List” has the meaning set forth in Section 17.5.

1.118 “Qualified Person” has the meaning set forth in Section 9.1.4.

1.119 “Receiving Party” has the meaning set forth in Section 34.5.1.

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