TURNKEY
ENGINEERING, PROCUREMENT AND CONSTRUCTION
AGREEMENT
FOR
SOLAR PHOTOVOLtAIC gENERATING FACILITY
bETWEEN
______,
as Owner
AND
______
as Contractor
Dated as of______, 2013
PDXDOCS:1874286.13
24878-0077/LEGAL22094217.9
Table of Contents
(continued)
Page
ARTICLE 1 GENERAL MATTERS
1.1Defined Terms
1.2Interpretation
1.3Appendices
1.4Order of Precedence
ARTICLE 2 RETENTION OF CONTRACTOR
2.1Retention of Contractor
2.2Status of Contractor; No Partnership
2.3Subcontractors and Vendors
ARTICLE 3 CERTAIN OBLIGATIONS AND RESPONSIBILITIES OF CONTRACTOR
3.1Scope of Work; Applicable Standards
3.2Control and Method of the Work
3.3Certain Matters Pertaining to Job Site
3.4Owner Access to Job Site
3.5Inspection and Testing of Work in Progress
3.6No Waiver of Responsibility
3.7Defective Work
3.8Clean-Up
3.9Obtaining, Maintaining and Identifying Permits
3.10Labor
3.11Project Management and Contractor's Representative
3.12Temporary Office Quarters
3.13Cooperation with Other Contractors/Community
3.14Protection and Safety
3.15Environmental Matters
3.16Fire Prevention
3.17Archaeological Resources
3.18Reports, Plans and Manuals
3.19Drawings, Engineering Data and Other Materials
3.20Required Manuals
3.21Training of O&M Personnel
3.22Accounting Information; Financial Reporting Requirements
3.23Contractor Taxes
3.24Construction Utilities
3.25Intellectual Property Rights
3.26Wastewater, Potable Water
3.27Start Up Process
3.28Accommodations Regarding Testing
3.29Job Site
3.30Critical Path Schedule
3.31Monthly Progress Report
ARTICLE 4 CERTAIN OBLIGATIONS OF OWNER
4.1Permits
4.2Interconnection Facilities
4.3Access to Site
4.4Description of Site
4.5Owner Taxes
4.6Owner's Documents
4.7Owner's Representative
ARTICLE 5 PROJECT SCHEDULE; INSPECTION; DELIVERABLES
5.1Notices to Proceed
5.2Critical Path Schedule
5.3Inspection
5.4Third Party Inspection
5.5Deliverables Schedule
5.6Owner Review of Contractor Deliverables
5.7Remedy of Defects
5.8Limitation on Owner's Obligations
5.9Schedule Recovery Plan
5.10Liquidated Damages
ARTICLE 6 CHANGE ORDERS
6.1Change Order at Owner's Request
6.2Change Orders Requested by Contractor
6.3Changes to Contract Price
6.4Information Requests
6.5Minor Changes
ARTICLE 7 CONTRACT PRICE; PAYMENTS TO CONTRACTOR; CLOSING
7.1Contract Price.
7.2Escrow Closing.
7.3Deliveries at Closing.
ARTICLE 8 TITLE, RISK OF LOSS AND POSSESSION
8.1Clear Title
8.2Risk of Loss
ARTICLE 9 INSURANCE
9.1Contractor Insurance Policies
9.2Subrogation Waivers
9.3Evidence of Insurance
9.4Failure to Maintain Insurance
ARTICLE 10 SYNCHRONIZATION, TESTS, MECHANICAL AND ELECTRICAL COMPLETION AND FINAL ACCEPTANCE
10.1General
10.2Synchronization
10.3Mechanical and Electrical Completion
10.4Performance Tests
10.5Performance Shortfalls
10.6Punch List
10.7Final Acceptance
10.8Changes in Guaranteed Dates
10.9Test Revenues
ARTICLE 11 COMPLETION GUARANTEE AND CERTAIN LIQUIDATED DAMAGES
11.1Completion Guarantee
11.2Schedule Liquidated Damages
11.3Capacity Shortfall Liquidated Damages
11.4Payment of Liquidated Damages
11.5Determination of Performance
ARTICLE 12 CONTRACTOR'S WARRANTIES
12.1Warranties
12.2Repair of Nonconforming Work
12.3Proprietary Rights
12.4Repairs and Testing by Owner
12.5Vendors and Subcontractors
12.6Assignment of Warranties
12.7Survival of Warranties
ARTICLE 13 REPRESENTATIONS
13.1Representations and Warranties
13.2Survival of Representations and Warranties
ARTICLE 14 FORCE MAJEURE
14.1Events of Force Majeure
14.2Notice
14.3Scope of Suspension; Duty to Mitigate
14.4Removal of Force Majeure
14.5Responsibility of Contractor
14.6Notice
ARTICLE 15 TERMINATION
15.1Contractor Events of Default
15.2Termination by Owner Due to Contractor Default; Other Remedies
15.3Termination by Owner for Convenience
15.4Owner Events of Default
15.5Termination by Contractor Due to Owner Default
15.6Continuing Obligations and Remedies During Event of Default
15.7Termination and Survival of Terms
ARTICLE 16 INDEMNIFICATION
16.1Contractor Indemnification
16.2Owner Indemnification
16.3Conditions of Indemnification
16.4Contributory Negligence
16.5Remedies Not Exclusive
16.6Payment
16.7Survival of Indemnification
ARTICLE 17 DISPUTE RESOLUTION
17.1Negotiation
17.2Continuing Obligations and Rights
17.3Tolling Statute of Limitations
17.4Audit Rights
ARTICLE 18 MISCELLANEOUS
18.1Assignment
18.2Good Faith Dealings; Authorship
18.3Confidentiality
18.4Notice
18.5Waiver
18.6Severability
18.7Governing Law
18.8Entire Agreement; Amendments
18.9Expenses and Further Assurances
18.10No Third Party Beneficiary
18.11Counterparts
18.12Limitations of Liability
18.13Time is of the Essence
18.14Records Retention
18.15Successors and Assigns
18.16Financing Parties' Requirements
18.17Acceptance or Rejection in Bankruptcy
-1-APPENDICES, SCHEDULES AND EXHIBITS
AppendixATechnical Specification and Scope of Work
AppendixBCritical Path Schedule
AppendixCApproved Subcontractors
AppendixDForm of Final Acceptance Certificate
AppendixE-1Module Warranty
AppendixE-2Tracker Warranty
AppendixE-3Inverter Warranty
AppendixE-4Transformer Warranty
AppendixE-5SCADAMonitoring System and SecuritySystemWarranty
AppendixFManuals
Appendix GEngineering Documents, Drawings and Other Deliverables
AppendixHProject Management Team
AppendixILegal Description of Site
AppendixJForms of Release and Waiver of Liens and Claims
AppendixKForm of Request for Change Order
AppendixLForm of Safety Assurance Plan
AppendixMCritical Milestones
Appendix NMonthly Progress Reports
Appendix OWarranty Procedures
Appendix PSpare Parts and Special Tools
Appendix QFinal Cost Report Requirements
Appendix RInsurance
Schedule 1Defined Terms
Appendix __Surveys, Geotechnical Reports, Cultural and Endangered species studies, Conditional use permits
-1-
24878-0077/LEGAL22094217.9
TURNKEY ENGINEERING, PROCUREMENT AND CONSTRUCTION
AGREEMENT
FOR
SOLAR PHOTOVOLTAIC GENERATING FACILITY
THIS TURNKEY ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT FOR SOLAR PHOTOVOLTAIC GENERATING FACILITY (this "Agreement"), dated as of ______, 2013 (the "Effective Date"), is by and between ______, an Oregon company ("Owner") and ______, a ______corporation ("Contractor").
W I T N E S S E T H:
WHEREAS, Owner wishes to construct and operate a ___MWac(approximately ____MWdc depending on final design engineering)solar photovoltaic generation facility and all services and utilities related thereto as described in Appendix A, all to be built on the Site (as defined herein) located in _____ County, Oregon;
WHEREAS, Contractor has represented that it is experienced and qualified in providing technical assistance, licensing, engineering, procurement, supply, construction management, construction, commissioning, start-up and testing services, and that it possesses the requisite expertise and resources to complete the Work (as defined herein);
WHEREAS, Contractor has agreed to provide, through itself or through Subcontractors and Vendors (as such terms are hereinafter defined), such Work on a "turnkey" basis for the Contract Price (as defined herein); and
WHEREAS, Contractor has agreed to guarantee the timely and proper completion of the Work in strict accordance with the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual promises and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and Contractor hereby agree as follows:
ARTICLE 1
GENERAL MATTERS
1.1Defined Terms
As used in this Agreement, including the appendices, exhibits and other attachments hereto, capitalized terms used in this Agreement shall have the meanings assigned to them in the document or as set forth in Schedule1 unless the context otherwise requires.
1.2Interpretation
Unless the context of the Contract Documents otherwise requires:
1.2.1The headings contained in this Agreement are used solely for convenience and do not constitute a part of this Agreement between the Parties, nor should they be used to aid, to construe or to interpret this Agreement;
1.2.2The gender of all words used herein shall include the masculine, feminine and neuter and the number of all words shall include the singular and plural words;
1.2.3The terms "hereof", "herein" "hereto" and similar words refer to this entire Agreement and not to any particular Article, Section, Appendix or any other subdivision of this Agreement;
1.2.4References to "Article," "Section," "Appendix" or "Exhibit" are to this Agreement unless specified otherwise;
1.2.5Reference to "this Agreement" (including any Appendix hereto) or any other agreement, Exhibit, permit or document shall be construed as a reference to such agreement or document as the same may be amended, modified, supplemented or restated, and shall include a reference to any document which amends, modifies, supplements or restates, or is entered into, made or given pursuant to or in accordance with its terms;
1.2.6Unless otherwise expressly stated, references to any law, statute, rule, regulation, notification or statutory provision (including Applicable Laws, Applicable Permits and the Operating Guidelines) shall be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or re-enacted;
1.2.7References to any Person shall be construed as a reference to such Person's successors and permitted assigns; and
1.2.8References to "includes," "including" and similar phrases means "including, without limitation."
1.3Appendices
The following Appendices are attached to and incorporated into and made a part of this Agreement:
AppendixATechnical Specification
AppendixBCritical Path Schedule
AppendixCApproved Subcontractors
AppendixDForm of Final Acceptance Certificate
AppendixE-1Module Warranty
AppendixE-2Tracker Warranty
AppendixE-3Inverter Warranty
AppendixE-4Transformer Warranty
AppendixE-5SCADAMonitoring System Warranty
Appendix FManuals
Appendix GEngineering Documents, Drawings and Other Deliverables
AppendixHProject Management Team
AppendixILegal Description of Site
AppendixJForms of Release and Waiver of Liens and Claims
AppendixKForm of Request for Change Order
AppendixLForm of Safety Assurance Plan
AppendixMMilestone Schedule
Appendix NMonthly Progress Reports
Appendix OWarranty Procedures
Appendix PSpare Parts and Special Tools
Appendix QFinal Cost Report Requirements
Appendix RInsurance
1.4Order of Precedence
1.4.1In the event of conflicts among the terms of the Contract Documents, interpretations shall be based upon the following Contract Documents which are set forth in ranked order of precedence:
(a)amendments, addenda or other modifications to the Contract Documents (including Change Orders) duly signed and issued after the signing of this Agreement and effected in accordance with the terms hereof, with those of a later date having precedence over those of an earlier date;
(b)the Agreement; and
(c)the Appendices to the Agreement;
1.4.2Section 1.4.1 notwithstanding:
(a)The scope of work as described in Appendix A shall control over the Agreement in the event of any conflict between the two specifically with respect to the description of the Work to be done or the methods by which the Work is to be done;
(b)the Interconnection Agreement shall control over this Agreement with respect to its subject matter; and
(c)the order of precedence in Section 1.4.1 shall be utilized to resolve a conflict only after commercially reasonable efforts have failed to reconcile the allegedly conflicting provisions.
1.4.3In the event of a conflict among, or within, any other Contract Document(s) within any one of the levels set forth in the order of precedence in Section 1.4.1, or between the Contract Documents and Applicable Laws or Applicable Permits, or among Applicable Laws or Applicable Permits themselves, the more stringent or higher quality requirements shall control. All obligations imposed on Contractor and each Subcontractor under the Agreement or under Applicable Laws, Applicable Permits or Applicable Standards and not expressly imposed or addressed in the Contract Documents shall be in addition to and supplement the obligations imposed on Contractor under the Contract Documents, and shall not be construed to create an "irreconcilable conflict."
ARTICLE 2
RETENTION OF CONTRACTOR
2.1Retention of Contractor
Owner hereby engages Contractor, and Contractor hereby agrees to be engaged by Owner to perform the Work in accordance with the terms and conditions set forth herein.
2.2Status of Contractor; No Partnership
Contractor shall be an independent contractor with respect to any and all Work performed and to be performed under the Contract Documents. The Contract Documents shall not be interpreted or construed to create an association, joint venture or partnership relationship among or between the Parties or any similar relationship, obligations or liabilities. Neither Party shall have any right, power or authority to enter into any agreement or undertaking for, act on behalf of, or to act as or be an agent or representative of, or to otherwise bind or obligate the other Party.
2.3Subcontractors and Vendors
2.3.1Subject to Section 2.3.2, Contractor shall have the right to have any portion of the Work performed by a Subcontractor or Vendor qualified to perform such Work pursuant to written subcontracts or written purchase orders; provided that Contractor shall not be relieved from any liability or obligation under the Contract Documents. Except as otherwise expressly provided in the Contract Documents, Contractor shall be solely responsible for engaging, managing, supervising and paying all such Subcontractors and Vendors. Contractor shall require that all Work performed, and all Equipment provided by Subcontractors and Vendors are received, inspected and otherwise furnished in accordance with all Applicable Permits and the Contract Documents. Contractor shall be liable for all acts, omissions, liabilities and Work (including Defects therein) of such Subcontractors and Vendors. Owner shall not have any obligation or liability to any Subcontractor or Vendor. Nothing in any contract, subcontract or purchase order with any Subcontractor or Vendor shall in any way diminish or relieve Contractor from any duties and obligations under the Contract Documents. No Subcontractor or Vendor is intended to be or shall be deemed a third-party beneficiary of the Contract Documents. Subcontractors may not in turn assign responsibilities under the subcontract. Vendors may not assign responsibilities under purchase orders.
2.3.2Owner has approved the use of the Subcontractors identified on Appendix C. Contractor shall notify Owner in writing prior to retaining any additional Subcontractor that it expects to pay in excess of $250,000, together with a description of the portion of the Work proposed to be performed by it. Within five (5) Business Days after receipt of such notice and information, Owner shall advise Contractor if the additional proposed Subcontractor is unacceptable. If Owner fails to object to the additional proposed Subcontractor within such five (5) day period, Contractor may retain such Subcontractor for the portion of the Work proposed. If Owner objects in writing (stating with reasonable detail the basis for such objection) within such five (5) day period to the additional proposed Subcontractor, Contractor shall not retain such proposed Subcontractor. If Contractor disagrees with Owner's objection, it shall promptly notify Owner. If the selection of a new Subcontractor results in costs for the portion of the Work completed by such Subcontractor that exceed both the cost that would have been incurred to the proposed Subcontractor to which Owner objected, and Contractor's budgeted amount for the portion of the Work covered by the related subcontract, then Contractor shall submit a Change Order in accordance with Section6.2 before the new Subcontractor is selected and the Parties will follow the procedures applicable to Change Orders.
2.3.3Each subcontract and purchase order shall require such Subcontractor and Vendor to assume toward Contractor those terms and conditions of contracting which Contractor customarily includes in its subcontracts. At a minimum, all subcontracts shall require the Subcontractors to comply with Applicable Laws and Applicable Permits, shall provide that Owner has the right of inspection as provided hereunder and require such Subcontractors and Vendors to:
(a)Be subject to the labor obligations hereunder as well as the safety and security provisions of the Contract Documents;
(b)Provide guarantees and warranties with respect to its portion of the Work and the Equipment on terms substantially similar to those required hereunder,
(c)Provide certificates of insurance as set forth herein; and
(d)Be subject to the dispute resolution procedures as required herein.
All Subcontractors shall be licensed and bonded in accordance with Oregon law. All subcontracts shall preserve and protect the rights of Owner.
ARTICLE 3
CERTAIN OBLIGATIONS AND RESPONSIBILITIES OF CONTRACTOR
3.1Scope of Work; Applicable Standards
3.1.1Contractor shall, at its own cost and expense:
(a)Design, engineer, procure, construct, start up, and carry out the Tests for the Plant, and perform its other obligations hereunder, including completion of the Project as set forth in Appendix A, and any warranty work hereunder; and
(b)Manage, supervise, inspect and furnish all Labor, Equipment, Contractor Equipment, temporary structures, temporary utilities, products and services for the foregoing, all on a turnkey basis, in accordance with the Contract Documents, including, without limitation, the Critical Path Schedule and the Scope of Work, as the same may be modified from time to time in accordance with the terms hereof by a Change Order or other amendment hereto (all of the foregoing in clauses (a) and (b) being collectively referred to in this Agreement as the "Work").
3.1.2Subject to the remedies provided for herein, Contractor shall perform the Work and turn the Plant over to Owner in a manner that is:
(a)Sufficient, complete and adequate in all respects and free from Defects;
(b)In conformance with the professional standards and skill, and expertise and diligence of design and construction, of professionals regularly involved in utility grade, utility-scale, grid-connected solar photovoltaic power projects in the United States;
(c)In compliance with the terms of the Contract Documents, the Operating Guidelines, the Utility's interconnection requirements, all Applicable Laws, Applicable Standards and Applicable Permits; and
(d)Approved as to form, use and content by all Government Authorities and private entities authorized to administer or enforce any building or construction code or standard whose approval of the final design of the Plant, or any portion thereof, is necessary for the construction, operation or interconnection of the Plant.
3.1.3In light of the foregoing, Contractor has included within the Contract Price the cost to complete the entire Scope of Work. Items need not be specifically listed in the Contract Documents or in AppendixA, in order to be deemed to be items within the Scope of Work. It is understood that Contractor is better qualified to list exclusions than Owner is to list inclusions. Therefore, any item indicated on the Contract Documents, inferable therefrom, incidental thereto or required in accordance with any Applicable Law, Applicable Standards, Applicable Permits or Prudent Utility Practices in existence as of the Effective Date, that is not specifically excluded from the Scope of Work in Contractor's exclusions set forth on AppendixA, is to be considered as part of the Scope of Work. In addition, the Scope of Work includes all that should be properly included and all that would be customarily included within the general scope and magnitude of the Work in order to achieve the Final Acceptance Performance Level applicable to the Project. As a result, except for Contractor's exclusions set forth on AppendixA, Contractor hereby waives any and all claims for an increase in the Contract Price or an extension of the Guaranteed Final Acceptance Date or the Outside Completion Datebased, in whole or in part, upon an assertion that any certain license, technical assistance, engineering, assembly, construction, service, labor, material, equipment, operation or management is beyond the Scope of Work when such license, technical assistance, engineering, assembly, construction, service, labor, material, equipment, operation or management is indicated in the Contract Documents, the Drawings or other instruments of service prepared in connection with the Contract Documents, inferable therefrom, incidental thereto, required in accordance with any Applicable Law, Applicable Standards, Applicable Permits, Prudent Utility Practices in existence as of the Effective Date, or otherwise necessary in order to complete a Project in accordance with and subject to the requirements of the Contract Documents. All of the foregoing notwithstanding, Contractor shall not be entitled to a change in the Contract Price if tariffs or duties are imposed on the photovoltaic solar panels used for the Project by any Government Authority.
3.1.4Contractor shall perform the Work in conformance with the professional standards and skill, and expertise and diligence of design and construction, of professionals regularly involved in utility grade, utility-scale, grid-connected solar photovoltaic power projects for public utilities in the United States. Without limiting the generality of the foregoing, Contractor shall: