AGREEMENT
FOR
ENGINEERING AND DESIGN SERVICES
BETWEEN
[CLIENT] POWER LLC
AND
AMOS & ANDY, L.L.C.
DATED AS OF
______
TABLE OF CONENTS
Page
ARTICLE I.DEFINITIONS, ACCEPTANCE AND PAYMENT...... 1
1.1Definitions...... 1
1.2Scope of Services...... 3
1.3Receipt of Notice to Proceed...... 3
1.4Personnel...... 3
1.5Changes...... 3
ARTICLE II.LIABILITY AND WARRANTY...... 5
2.1Indemnification...... 5
2.2Limitation of Liability...... 6
2.3Warranties...... 6
2.4Non-Waiver...... 7
2.5Insurance...... 7
ARTICLE III.OWNERSHIP AND CONFIDENTIALITY OF SERVICES/DOCUMENTS7
3.1Ownership of Services/Documents...... 7
3.2Confidential Information...... 8
3.3Additional Documents...... 8
3.4Return of Materials...... 8
ARTICLE IV.MISCELLANEOUS PROVISIONS...... 8
4.1Assignment and Subcontracting...... 8
4.2Termination...... 9
4.3Release of Mechanic’s Liens...... 9
4.4Public Announcement...... 9
4.5Applicable Law...... 9
4.6Force Majeure...... 9
4.7Notices...... 9
4.8Severability...... 10
4.9Integration...... 10
4.10Headings...... 10
4.11Safety...... 10
4.12Substance Abuse/Contraband...... 11
4.13Equal Opportunity...... 11
4.14Records and Audits...... 11
ARTICLE V.LICENSING AND CODES...... 11
5.1Licensed Engineers...... 11
5.2Engineer License...... 11
5.3Industry Codes and Standards...... 11
ARTICLE VI.THE PARTIES' REPRESENTATIVES...... 12
6.1[Client] Representatives...... 12
6.2Engineer’s Representatives...... 12
6.3Representative’s Access...... 12
6.4Compliance with [Client] Representative’s Directives...... 12
ARTICLE VII.COMPENSATION AND INVOICING...... 13
7.1Total Compensation...... 13
7.2Monthly Invoices...... 13
7.3Payment of Undisputed Amounts...... 13
7.4Payment of Disputed Amounts...... 13
7.5Retainage...... 13
ARTICLE VIII.REPRESENTATIONS AND WARRANTIES...... 14
8.1Representations and Warranties of Both Parties...... 14
8.2Additional Warranties and Representations of Engineer...... 14
8.3Additional Documentation Payments...... 15
8.4Changes in Circumstances...... 15
ARTICLE IX.PATENTS AND COPYRIGHTS...... 15
9.1Patent Indemnity...... 15
ARTICLE X.CONFLICTING PROVISIONS...... 15
ARTICLE XI.DISPUTES...... 16
11.1Applicability of Resolution Procedures...... 16
11.2Management Discussions...... 16
11.3Mediation...... 16
11.4Obligations Continue...... 16
11.5Injunctive Relief...... 17
11.6Survival...... 17
11.7Jurisdiction...... 17
1
[CLIENT] POWER LLC
AGREEMENT FOR ENGINEERING AND DESIGN SERVICES
THIS AGREEMENT for Engineering and Design Services (“Agreement”) is dated as of______and is by and between [CLIENT] POWER LLC (“[Client]” or “Owner”) and Amos & Andy, L.L.C. (“Engineer”) ([Client] and Owner may be referred to individually as “Party” and collectively as “Parties”).
RECITALS
WHEREAS, [Client] is consideringreplacement of its existing gas and oil fired boiler with new circulating fluidized bed solid fueled boilers at [Plant name] Unit 3 and the addition of combustion turbines at the [Plant name] Power Station(the “Facility”).
WHEREAS, [Client] requires various information, engineering, design, analysis, technical, and other advisory services (the “Services” or the “Work”) in connection with the Facility;
WHEREAS, Engineer, desires to and is able to perform such Services as set forth below, under the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the above premises, mutual covenants set forth below and other good and valuable consideration (the sufficiency of which is hereby acknowledged) [Client] and Engineer agree as follows:
ARTICLE I.
DEFINITIONS, ACCEPTANCE AND PAYMENT
1.1Definitions.
1.1.1“Agreement” shall mean this Agreement including Article I - XI and all Appendices incorporated herein.
1.1.2“Appendix” means each of the following:
Appendix A – Insurance
Appendix B – Socio-Economic Program Requirements
Appendix C-1 – [Plant name] Unit 3 Scope of Work
Appendix C-2- Combustion Turbine Scope of Work
Appendix D-1 –[Plant name] Unit 3 Price and Compensation
Appendix D-2- Combustion Turbine Price and Compensation
Appendix E – Form of Notice to Proceed[to be drafted]
Appendix F-1 – [Plant name] Unit 3 Project Schedule
Appendix F-2- Combustion Turbine Project Schedule
Appendix G-Fitness for Duty
1.1.3“Change Order” shall have the meaning set forth in Section 1.5.
1.1.4“[Client] Representative” shall have the meaning set forth in Article VI.
1.1.5“Consulting” when used herein or in conjunction herewith shall mean, but not be limited to, the advice of consultant in his professional capacity provided to [Client] in any form.
1.1.6“Contract Price” shall mean the “not to exceed” price stated in Section 7.1.
1.1.7“Day” shall mean a calendar day.
1.1.8“Engineer’s Potential Change Order” shall have the meaning set forth in Section 1.5.2.
1.1.9“Force Majeure” shall have the meaning set forth in Section 4.6.
1.1.10“Notice” is a Notice given pursuant to Section 4.7.
1.1.11“Notice to Proceed” has the definition set forth in Section 1.3.
1.1.12“Potential Change Order” shall have the meaning set forth in Section 1.5.1.
1.1.13“Project Manager” shall have the meaning set forth in Section 4 of Appendix C..
1.1.14“Project Schedule” shall be the schedule as shown in Appendix F-1 or F-2 as applicable.
1.1.15“Project Site” shall mean the plant site of[Plant name]Power Station.
1.1.16“Services” when used herein or in conjunction herewith shall mean, but not be limited to, any services, study, analysis, reporting, evaluation, opinion, critique, drawing, drafting, engineering or design provided by Engineer.
1.1.17“Work” shall mean the Services.
1.1.18“Work Product” has the definition set forth in Section 3.1
1.2Scope of Services. Upon issuance of a Notice to Proceed form referencing this Agreement, Engineer shall perform the Services as may be set out in this Agreement including but not limited to Engineering & Design Services -- [Plant name] Power Station Unit 3 Circulating Fluidized Bed (CFB) Conversion and the addition of the combustion turbines. [Client] may from time to time, at its option, alter the scope of Services in accordance with the provisions of Section 1.5. In addition, [Client] may issue separate Notices to Proceed for the Unit 3 conversion and for the combustion turbines.
1.3Receipt of Notice to Proceed. Upon receipt of the Notice to Proceed, in accordance with the Form of Appendix EEngineer shall begin Services under this Agreement and at that time, this Agreement shall supersede Service Agreement SA-1596B between the Parties hereto.
1.4Personnel.
1.4.1Adequate and Competent Labor Force. At all times during the performance of the Service, Engineer shall keep, and cause to be kept, a sufficient number of skilled engineers, draftsmen and other personnel necessary to perform and complete each part and portion of the Services. [Client] shall have the right to direct Engineer to remove any individual whether an employee of Engineer or of a subcontractor performing the Services. Engineer shall take reasonable precautions in the selection of its personnel and subcontractors and in the performance of the Services to safeguard, if applicable, equipment, materials, supplies, plans and specifications and all aspects of the Services from theft or unauthorized use or disclosure thereof or damage thereto.
1.4.2Wages and Benefits. Engineer shall be responsible for payment of all wages, fringe benefits, pension or retirement obligations, housing obligations, social security, unemployment, workers compensation and all other social taxes or charges for its employees and those of its subcontractors and ensure that its subcontractors are so responsible for their employees.
1.4.3Key Personnel. Engineer shall identify to [Client] a Project Manager, and a lead engineer for each discipline (including ajob description and related past experience of each) reasonably acceptable to [Client]. Engineer shall requires its subcontractors to identify such key personnel as well.The Project Manager shall have full responsibility for the Services and shall act as [Client]’s primary point of contact with Engineer with respect to prosecution of the Services. Engineer shall not change the Project Manager, orthe lead disciplineengineers without the prior written consent of [Client], which shall not be unreasonably withheld.
1.5Changes.
1.5.1[Client] Initiated Change Orders. [Client], without invalidating this Agreement, may request potential changes in the Services (“Potential Change Order”), which may resultin changes in the Contract Price and/or the Project Schedule or other applicable provisions of the Agreement through the issuance of a Potential Change Order. Engineer shall use reasonable efforts to provide [Client] with the impact of the Potential Change Order on Contract Price and Project Schedule within the time frame requested in the Potential Change Order. [Client] and Engineer shall use their good faith efforts to agree on all terms for such ordered changes prior to the issuance of such Change Order. If, however, the Parties cannot agree on the adjustment to be made in the Contract Price, the Services, or the Project Schedule as a result of such Potential Change Order, then if so directed in writing by [Client],Engineer shall proceed to execute the Services described in the Potential Change Order promptly upon authorization from [Client] on a time and materials basis, until directed by [Client] to stop such changed Services. In such event the amount expended on such changes Services shall be added to the Contract Price. An amendment to this Agreement (“Change Order”) shall be issued by[Client] and Engineer indicating an agreement to the changes in the Services, and/or amount of compensation increase or decrease, and/or adjustment in the Project Schedule reflected in such Change Order.
1.5.2Engineer’s Potential Change Order. If Engineer desires a Change Order, Engineer shall give [Client] written Notice within thirty (30) Days after the occurrence of the event giving rise to such request. Within thirty (30) Days of any such Notice, Engineer shall provide [Client] with an appropriate statement setting forth the reasons why Engineer believes additional compensation or additional time should be granted, the detailed nature of any costs to be incurred, including reasonable adjustment to other applicable Agreement provisions, and the probable length of delay (an “Engineer’s Potential Change Order”). [Client] shall either accept or reject Engineer’sPotential Change Order by Notice within thirty (30) Days of its receipt by [Client]. If [Client] accepts any such requested Engineer’s Potential Change Order, a Change Order shall be executed by the Parties and the Contract Price or Project Schedule, as the case may be, shall be adjusted in accordance with the terms of such Change Order. [Client] shall have no obligation to accept the terms of an Engineer’s Potential Change Order proposed by Engineer. Failure to comply with the requirements of this Section 1.5.2shall constitute a waiver by Engineer of any and all Engineer’s Potential Change Order not pursued in accordance with the terms herein. If [Client] does not accept all or any portion of one of Engineer’sPotential Change Order, Engineer shall have the right to refer such matter to dispute resolution in accordance with Article XI.
1.5.3Change Order for Delays. If a delay or suspension of Services or activities identified on the Project Schedule occurs, an appropriate Change Order will be made to adjust the Project Schedule and the Contract Price as specified below:
(a)To the extent the delay or suspension on critical path activities is caused by [Client], the Project Schedule shall be extended as mutually agreed by the Parties hereto and the Contract Price shall be adjusted in an amount necessary to compensate Engineer for all direct and indirect costs and expenses on the basis set forth in Section 1.5.1resulting from such delay or suspension (“Engineer’s Delay Costs”).
(b)To the extent the delay or suspension on critical path activities is caused by Force Majeure, (excepting therefrom for purposes of this Section 1.5.3(b)acts of [Client]), Engineer shall give [Client] written Notice specifying the date of commencement of such delay or suspension within seven (7) Days after the date on which Engineer first becomes aware of the event or act constituting the Force Majeure. The Project Schedule shall be extended as mutually agreed by the Parties hereto from the Force Majeure delay date and the Contract Price may be adjusted in accordance with this Section 1.5.
1.5.4Change Order for Engineer Delay or Error. To the extent the delay orsuspension of the Services is caused by Engineer or itssubcontractors, no adjustment will be made to the Contract Price or Project Schedule, and [Client] shall have the right to obligate Engineer to propose a plan to perform the changed Services while minimizing schedule impact, which may include increasing manpower and extended Services hours or extra shifts if required, for Engineer to meet the Project Schedule. Excess costs for such Services will be to Engineer’s responsibility and not reimbursed by [Client]. Further, no Change Order shall be issued and no adjustment of the Contract Price, or the Project Schedule shall be made in connection with any correction of errors, omissions, deficiencies, or nonconforming Services on the part of Engineer or itssubcontractors in the performance of the Services.
1.5.5Minor Changes in the Services. Without a Change Order, [Client] may order, or [Client] and Engineer may mutually agree in writing to make changes in the Services which do not require an adjustment in the Contract Price or an extension of the Project Schedule.
1.5.6Records with Regard to Change Orders. Engineer shall maintain complete and accurate records and supporting documentation regarding Change Orders in accordance with Engineer’s established policies and procedures and generally accepted accounting practices, consistently applied.
ARTICLE II.
LIABILITY AND WARRANTY
2.1Indemnification. Engineer shall fully indemnify and hold harmless [Client], its officers, directors, affiliates and employees from and against each and every claim, demand or cause of action including those arising out of contract or tort and any liability, costs, expense (including attorneys’ fees and other costs incurred in the defense of [Client]), for damage or loss in connection therewith, which may be made or asserted by (a) Engineer, its employees or agents, subcontractors, or any third parties, on account of personal/bodily injury, including wrongful death, property damages or breach of contract (other than breach of this Agreement), and (b) [Client] for damage to its property, to the extent in the case of either (a) or (b) above caused by, arising out of, or resulting from breach of contract (other than breach of this Agreement) or any willful misconduct or negligent acts, errors or omissions and/or violations of applicable law by Engineer, its employees, agents or subcontractors, their employees and agents, while engaged in the performance of any Services hereunder, or the rendering of any Services hereunder.
Engineer and [Client] are each independent contractors, and neither shall have the power, nor will either represent that he, she or it has any power, to bind the other, or to assume, or to create any obligations or responsibilities, express or implied, on behalf of the other or in the other’s name, except as expressly provided in this Agreement. This Agreement shall not be construed as constituting a partnership between Engineer and [Client] nor any other form of legal association which would impose liability upon Engineer or [Client].
Engineer shall direct and control its subcontractors, and shall have full responsibility for all Services performed hereunder or under this Agreement, whether the Services are performed by Engineer or its subcontractors, agents or assigns and shall require its subcontractors to comply with the requirements of this Agreement, and all applicable laws, rules, and regulations, to the extent that Engineer would be responsible if performing the Services itself.
The indemnification provided above by Engineer to [Client] shall be extended by Engineer and inure to the benefit of any and all entities (partners, co-owner, or shareholders with [Client]) which hold an ownership interest, in any way, in the premises on or in which the Services are being performed by Engineer. The indemnification giventhese entities shall be equal to the indemnification given [Client] by Engineer above.
2.2Limitation of Liability. Neither [Client] nor Engineer, their agents, subcontractors, employees or assigns, shall be liable, whether arising out of contract, tort, strict liability, or any other cause or form of action, for any special, indirect, incidental, or consequential loss or damage, which may include loss of anticipated profits, loss by reason of plant or other facility shutdown, non-operation or increased expense of operation, service interruptions, cost of purchased or replacement power, loss of use of capital or revenue.
Notwithstanding any other provisions of this Agreement, Engineer’s aggregate limitation of liability for any and all claims arising or allegedly arising as a result of the Services performed hereunder shall not exceed fifty percent (50%) of the compensation paid to Engineer for the Services under this Agreement together with any other agreement for work at the Facility. The limitation of liability and waiver of consequential damages above shall in no way apply to or have any effect onEngineer’s liability to [Client](a) under Section 3.1, (b) under Article IX or (c) for loss or damage caused by intentional or gross fault or physical injury to [Client]. [Client] is specifically recognized as a statutory employer of all employees of Engineer, whether direct employees or statutory employees, who are performing Services under this Agreement, as contemplated by LSA-R.S.23:1061 A.
Notwithstanding any other provisions of this Agreement, Engineer shall not be liable for[Client] costs incurred for construction rework resulting from Engineer design errors.
2.3Warranties. Engineer shall perform its Services with care, skill, and diligence and shall perform in accordance with the applicable professional and technical standards currently recognized by Engineer’s profession as well as all applicable licenses, codes, laws and permits. Engineer shall be responsible for the professional quality, technical accuracy, completeness and coordination of all reports, designs, drawings, plans, information, specifications, and other items and Services to be furnished under this Agreement. Engineer shall comply with all applicable federal, state and local laws, ordinances, codes and regulations in performing its Services. Engineer warrants that it, its employees, agents, subcontractors and assigns possess all requisite licenses and permits for their profession. [Client] and Engineer believe that the applicable laws ordinances and codes are listed in Appendix C and that there are no local requirements that materially differ from those listed in Appendix C. If it is discovered that there are local requirements that materially differ from those listedin Appendix C, the parties hereto will issue any necessary Change Order. If Engineer, or its employees, agents, subcontractors, or assigns fail to meet the above stated warranty including applicable professional standards or misrepresents its qualifications or those of its employees, agents, subcontractors and assigns, Engineer shall, without additional compensation, re-performits such deficient or non-conforming Services, subject to the applicable limitations in Section 2.2, so long as such failure is reported in writing to Engineer within a reasonable time following discovery thereof, but in no event later than one year from the earlier of (a) stable generation of the new generating facilities for at least twenty-four (24) continuous hours fired on solid fuel, or (b) December 31, 2011. In the event that Engineer fails to correct deficient or non-conforming Services within a thirty (30) day period after Notice from [Client], [Client] shall have the right to use another contractor to perform such Services. The costs associated with the other contractor’s services shall be borne by Engineer, subject to [Client]’s legal obligation to mitigate such costs.
Engineer warrants that the Services, including any drawings, specifications, reports, charts, diagrams or other documents, provided hereunder, will conform to applicable instructions, drawings, data and samples provided by [Client] and that said Services shall be sufficient for the purpose specified.