20180216Vail Exhibit 53.pdf

Case No.PAC-E-17-07
Exhibit No.53
Witness:Rick A.Vail
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
O
ROCKY MOUNTAIN POWER
Exhibit Accompanying Second Supplemental Testimony of Rick A.Vail
EPC and LSA Contract Forms
February 2018
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Rocky Mountain Power
Exhibit No.52 Page 1 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vall
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TURNKEY CONTRACT
FOR
ENGINEERING,PROCUREMENT
AND CONSTRUCTION SERVICES
BETWEEN
[1
AEOLUS,ANTICLINE,JIM BRIDGER SUBSTATION PROJECTS
O Dated as of
f 1
TABLE OF CONTENTS
O [To Be Updated]
-i -
Both Parties have caused an mdividual with the requisne authorits to acknowledge this and each page of this Contract prior to execution
Contractor iniual Compant inmal
Rocky Mountain Power
Exhibit No.52 Page 2 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
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PAGE
l.DEFINITIONS AND RULES OF INTERPRETATION................................................................................1
2.EXH I B ITS,I NTE RPRETA TION,CONFL I CTS.........................................................................................1 6
2.1 Exhibits ................................................16
2.2 Interpretation ......................................................17
2.3 Conflicts in Documentation ...................................................18
2.4 Documentation Format.....................................................18
3.RESPONSI BI LI T I ESOFOWNER ...............................................................................................................1 8
3.1 Project Representative......................................................18
3.2 Owner Milestones ...................................................18
3.3 Ministerial Assistance .......................................................19
3.4 Owner Acquired Permits.......................................................19
3.5 Access to Site..................................................19
3.7 Hazardous Materials .................................................19
4.RESPONSI BI LI T I ESOFCONTR A CTOR ..................................................................................................20
4.1 Performance of Work..................................................20
4.2 Cost of Work...................................................21
4.3 Facilities.....................................................21O4.4 Organization......................................................21
4.5 Project Manager/Staff....................................................21
4.6 Contractor Acquired Permits......................................................21
4.7 Inspection ..................................................21
4.8 Maintenance of Site .................................................21
4.9 Price Allocation Schedule.......................................................22
4.10 Site Security .............-·-···---··............................22
4.11 Contractor Safety Program.............................................................22
4.12 Equipment .........................................................................23
4.l3 Construction Materials and Supplies.....................................................23
4.14 Contractor's Personnel/Drugs,Alcohol and Firearms.................................................24
4.15 Applicable Laws/Permits .................................................24
4.l6 Replacement at Owner's Request.................................................25
4.17 Quality Assurance Programs .....................................................25
4.18 Access .....................................................25
4.l9 Documents at Site.................................................27
4.20 Other Assistance...................................................27
4.21 Data,Drawings and Manuals ................................................27
4.22 Training..........................................................27
4.23 Announcements;Publications .................................................27
4.24 Workers'Compensation...................................................27
4.25 Documents Requested ...................................................27
4.26 Critical Path Schedule ................................................28
4.27 Project Progress Report......................................................29
4.28 Accident Reports ...................................................29
4.29 Punchlist..................................................29
4.30 Measurements.................................................29
O 4.3l Meetings...................................................29
4.32 Parts..................................................29
4.33 Hazardous Materials....................................................30
(a)Contractor's Obligations ....................................................30
(b)Contractor's Responsibility .....................................................30
Rocky Mountain Power
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Witness:Rick A.Vail
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(c)Procedures Upon Discovery.................................................30
(c)Contractor's Right to a Change In Work...................................................31
4.35 Audit..................................................................31
4.36 Operation of Existing Facilities..................................................31
4.37 Deliveryof Documents ....................................................32
4.38 Site Conditions ..................................................32
4.39 Non-Conforming Work .................................................33
4.40 Joint and Several Liability....................................................33
5.WA RRA NT IES A ND RE P RE SENTA TIONS ..............................................................................................33
5.1 Of Contractor ...........................................................................33
5.l.1 Organization,Standing and Qualification ..................................................34
5.1.2 Enforceable Contract...................................................34
5.1.3 Due Authorization .................................................34
5.1.4 Government Approvals.................................................34
5.1.5 No Suits,Proceedings..................................................35
5.1.6 Patents .................................................35
5.1.7 Business Practices ..................................................35
5.1.8 Owner-Provided Information...................................................36
5.1.9 Financial Condition ..................................................36
5.1.10 Joint Venture....................................................36
5.2 Of Owner ...................................................................................36
5.2.1 Organization,Standing and Qualification .................................................36
O 5.2.2 Enforceable Contract...................................................375.D Due Authorization ..................................................37
5.2.4 Government Approvals..................................................37
No Suits,Proceedings....................................................37
Business Practices ..................................................37
6.COSTOFWO RK ............................................................................................................................................38
6.1 Contract Price......................................................38
6.2 All Items of Work Included ....................................................38
6.3 Taxes;Tax Administration and Payments ..................................................38
(a)Responsibility for Taxes...................................................38
(b)Tax Administration and Payment................................................39
7.TERMSOFP A YMENT ..................................................................................................................................40
7.1 Contractor's Invoices ...............................................40
7.2 Certification by Contractor ................................................40
7.3 Subcontractor Statements....................................................41
7.4 Owner Review;Payments.....................................................41
7.5 Retainage..................................................41
7.6 Final Payment .................................................41
7.7 Disputes...................................................42
7.8 Method of Payment..................................................42
7.9 Holdbacks ..................................................42
7.10 Application of Monies.....................................................43
7.11 Release of Liability .................................................43
7.l2 All Payments in Dollars ....................................................44
8.COMMENCEMENT AND PROSECUTION OF THE WORK..................................................................44
O 8.1 Commencement of Work .....................................................44
8.3 Prosecution of Work .................................................45
8.4 Plan ...................................................45
9.FORCEM A JEURE .........................................................................................................................................45
Rocky Mountain Power
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Witness:Rick A.Vail
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9.1 Events of Force Majeure ..................................................45
9.2 Notice...........................................................................46
9.3 Scope of Suspension;Duty to Mitigate....................................................46
9.4 Removal of Force Majeure..................................................46
9.5 Responsibility of Contractor ................................................46
9.6 Contractor's Remedy ................................................46
10.SUBCONT RACTO RS.....................................................................................................................................47
10.1 Use of Subcontractors;Owner's Right to Object....................................................47
10.2 No Approvals;Contractor Responsible for Work..................................................47
10.3 Assignment.......................................................48
10.4 Information;Access ..............................................48
11.LA BOR RE L A TI ONS .....................................................................................................................................48
11.1 General Management of Employees......................................................48
11.2 Labor Disputes ....................................................48
11.3 Personnel Documents.................................................49
12.INSPECTION;EFFECT OF REVIEW AND COMMENT.........................................................................49
12.1 Inspection and Uncovering Work...................................................49
12.2 Right to Reject Work..................................................50
12.3 General Inspection Rights ................................................50
12.4 Deliverables Schedule ...................................................50
O 12.5 Owner Review of Documents ..................................................51
12.6 Remedy of Defect -Contractor Deliverables.................................................5l
12.7 Limitation on Owner's Obligations..................................................51
12.INSPECTION;EFFECT OF REVIEW AND COMMENT.........................................................................51
l3.l Foundation Completion...................................................5l
13.2 Project Mechanical Completion .................................................................................................52
13.3 Achievement of Foundation Completion and Segment Mechanical Completion..........................................53
13.3 Achievementof Foundation Completion and Segment Mechanical Completion..........................................54
14.TEST S A NDTEST I NG ...................................................................................................................................54
14.1 Test Procedures .................................................54
14.2 Conduct of Tests...............................................55
14.3 Test Schedules...................................................55
15.SEGMENT SUBSTANTIAL COMPLETION;PROJECT SUBSTANTIAL COMPLETION;AND
FI NA LCOMPLET I ON ............................................................................................................................................55
15.1 Segment Substantial Completion ...................................................55
15.2 Achievement of Segment Substantial Completion...................................................56
15.5 Final Completion..........................................................57
15.6 Achievementof Final Completion .....................................................58
15.7 Contractor's Access After Mechanical Completion..................................................59
1 6.DEL A YD AM AGES ........................................................................................................................................59
16.1 Liquidated Damages for Delay ..........................................................59
16.1.1 Segment Mechanical Completion Delay LDs..................................................59
16.1.1 Segment Mechanical Completion Delay LDs......................................................59
16.1.5 Other T-Line Interference......................................................60O16.1.6 Proration of Daily Amounts.....................................................60
16.2 Payment of Liquidated Damages......................................................60
16.3 Offset..........................................................60
16.4 Sole Remedy ...................................................60
Rocky Mountain Power
Exhibit No.52 Page 5 of 259
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Witness:Rick A.Vail
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17.CH A NGES IN THEWO RK ...........................................................................................................................60
17.1 Change In Work..................................................60
17.2 By Owner ....................................................61
17.4 Adjustments to the Contract....................................................61
17.4.1 Adjustments to the Contract Price ..............................................................................................62
17.4.3 Adjustments to the Progress Payment Amounts or Progress Payment Schedule.................................62
17.4.2 Force Majeure.........................................................63
17.4.3 Reduction In Cost ...................................................63
17.5 Schedule Float ..................................................63
17.5 Disputes ....................................................63
l 7.6 Procedures ...................................................63
17.6.1 Contractor's Estimate ....................................................63
17.6.2 No Unapproved Scope Changes ....................................................64
17.6.3 Failure to Comply with Notice Requirements ...................................................64
17.7 No Suspension......................................................64
1 8.WA RR A NT I ESCONCE RN INGTHEWO RK ............................................................................................64
l8.l Project Warranties.....................................................64
18.2 Materials Warranty.......................................................64
l 8.3 Warranty Period ..................................................65
1 8.4 Enforcement A fter Expiration ....................................................65
l 8.5 Exclusions ....................................................65
l 8.6 Subcontractor Warranties ...................................................66
O 18.7 Correction of Defects .................................................66
l 8.8 Additional Warranty Procedures ...................................................67
19.EQUI PMENT I MPORT A TIO N;T ITLE ......................................................................................................69
19.1 Importation of Equipment .................................................69
19.2 Title ....................................................69
19.3 Protection ....................................................70
20.DEFA ULT ........................................................................................................................................................70
20.1 Contractor Events of Default....................................................70
20.2 Owner's Rights and Remedies ..................................................72
20.3 Damages for Contractor Default ...................................................73
20.4 Owner Event of Default ..................................................74
20.5 Contractor's Remedies ..................................................74
2 1.EA RL YTE RM I NA TION ..............................................................................................................................74
21.1 General ...........................................................74
21.1.1 Adjustment for Defects...............................................74
21.1.2 Assumption of Contractor Contracts...................................................74
21.2 Claims for Payment...................................................75
21.3 Termination Payments..................................................75
22.SUSPENS ION...................................................................................................................................................75
22.1 General ...........................................................................................75
22.2 Contractor's Termination and Compensation Rights ................................................76
22.3 Extension of Time .......................................................76
22.4 Claims for Payment...................................................76
O 23.I NSURANCE ....................................................................................................................................................76
23.1 General ...........................................................76
23.1.1 Contractor's Insurance ....................................................76
23.1.2 Owner's Insurance ...................................................77
Rocky Mountain Power
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Witness:Rick A.Vail
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23.1.3 Non-Violation ....................................................77
23.2 Subrogation Waivers ..................................................77
23.3 Evidence of Insurance ................................................77
23.4 Insurance Coverages ..................................................78
23.5 Failure to Maintain Insurance..................................................78
23.6 Scope of Coverage .....................................................78
24.RI SKOFLOSSORD A M A GE ......................................................................................................................78
24.1 Contractor Assumption of Risk...................................................78
24.2 Loss or Damage;Limitations ....................................................79
25.I NDEMN IFI CA TI ON......................................................................................................................................79
25.1 By Owner ....................................................79
25.2 By Contractor ............................................................79
25.3 Actions by Government Authorities.....................................................80
25.5 Notice;Defense;Settlement....................................................80
26.PATENT INFRINGEMENT AND OTHER INDEMNIFICATION RIGHTS..........................................81
26.1 Indemnity by Contractor ...................................................81
26.2 Lawsuits ..................................................81
26.3 Injunction ..................................................81
26.4 Effect of Owner's Actions..................................................82
1
CONFIDENTIAL IrNmFORMATION;TITLE TO INTELLECTUAL PROPERTY.........82
27.2 Title to Contractor Deliverables..................................................83
28.I NVENT I ONS A NDL I CENSES ....................................................................................................................83
29.ASSI GNMENTBYOWNER ..........................................................................................................................84
30.ASSI GNMENTBYCONTR A CTOR.............................................................................................................84
31.INDEPENDENTCONTR A CTOR .................................................................................................................84
31.1 General..................................................84
31.2 Employees .....................................................84
32.NO N-PA YMENTCL A I MS ............................................................................................................................84
33.NOT I CES A ND CO MMUN I CA TI ONS ........................................................................................................85
33.1 Requirements................................................85
33.2 Effective Time....................................................86
33.3 Representatives...................................................86
34.I NTENT I ONA LLYOM ITTED ......................................................................................................................86
35.LIMITATIONS OF LIABILITY AND REMEDIES....................................................................................86
35.1 Limitations on Damages..................................................86
35.2 Parent Guaranty and Letter of Credit ..................................................87
35.3 Limitations on Contractor's Liability....................................................88
35.4 Limitation on Owner's Liability..................................................89
35.5 Releases,Indemnities and Limitations.....................................................89
36.DI SPUTES........................................................................................................................................................8 9
36.1 Negotiations ..................................................89
Rocky Mountain Power
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36.2 Dispute Resolution .................................................90
36.3 Work to Continue..................................................90
37.M I SCELL A NEOUS.........................................................................................................................................90
37.1 Severability .................................................90
37.2 Governing Law.....................................................90
37.4 No Oral Modification ....................................................91
37.5 No Waiver .....................................................91
37.6 Time of Essence ..................................................91
O 7 Contract Interest Rate...................................................91
Headings for Convenience Only .................................................91
9 Third-Party Beneficiaries ...................................................91
N Language ..................................................92
Drafting Interpretations .................................................92
37.13 Further Assurances ..................................................92
37.14 Record Retention...................................................92
37.15 Binding on Successors...................................................92
216 Merger of Prior Contracts................................................92
37.18 Counterpart Execution.................................................92
37 2 Set-Off..................................................93
37.21 Further Information...............................................93
39.NE RC C I PS CO MPL I A NC E..........................................................................................................................93
38.2 Additional Access Requirements .............................................................................................................94
38.3 Personnel Screening/Background Check Requirements for Unescorted Personnel and Sensitive Personnel94
38.4 Contractor Designee.................................................95
38.5 Drug Testing......................................................................95
38.6 Department of Transportation Compliance .................................................96
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Rocky Mountain Power
Exhibit No.52 Page 8 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
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THIS TURNKEY CONTRACT FOR ENGINEERING,PROCUREMENT AND
CONSTRUCTION SERVICES (the "Contract")is made and entered into as of
[201_],(the "Effective Date")by and between,PacifiCorp,an Oregon Corporation ("Owner"),
and ,("Contractor").Each entity is sometimes individuallyreferred to
herein as a "Party"and both entities are sometimes collectively referred to herein as the
"Parties."
RECITALS
A.Owner desires to engage Contractor to design,engineer,procure,construct,test and
commission (as to testing and commissioning,only to the extent expressly provided in this
Contract,including Exhibit "A")the Project all on a turnkey,guaranteed fixed price,guaranteed
completion date basis,and Contractor desires to provide such services,all as further defined by
the terms and conditions set forth in this Contract
B.
C.Contractor has:
(1)been provided and reviewed the preliminary drawings and certain
specifications for the Project and other documents relating to the Project
which Contractor has deemed necessary in connection with this Contract;
(2)inspected the real property on which the Project shall be constructed;and
(3)performed or reviewed such other investigations,studies,and analyses
which Contractor has determined to be necessary or prudent in connection
with entering into this Contract.
D.Contractor agrees to guarantee the timely completion of the Project.
AGREEMENT
NOW,THEREFORE,in consideration of any sums to be paid to Contractor by
Owner and of the covenants and agreements set forth herein,the Parties agree as follows:
1.DEFINITIONS
Rocky Mountain Power
Exhibit No.52 Page 9 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
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For purposes of this Contract,except as otherwise expressly provided or unless the
context otherwise requires,the following terms shall have the following meanings.The
meanings specified are applicable to both the singular and plural.
1.1.Affiliate.With respect to any Person,another Person that is controlled by,that controls
or is under common control with,such Person;and,for this purpose,"control"with
respect to any Person shall mean the ability to effectively control,directly or indirectly,
the operations and business decisions of such Person whether by voting of securities or
partnership interests or any other method.
1.2.Applicable Laws.The term means and includes all of the following:
(a)any statute,law,rule,regulation,code,ordinance,judgment,decree,writ,order or the
like,of any Governmental Authority,and the interpretations thereof,including any
statute,law,rule,regulation,code,ordinance,judgment,decree,writ,order or the like,
regulating,relating to or imposing liability or standardsof conduct concerning:
O (i)Owner,Contractor,the Site,the Contractor Yard Site or the performance of any
portion of the Work or the Work taken as a whole,or the operation of the Project;
or
(ii)safety and the prevention of injuryto Persons and damageto property on,about or
adjacent to the Site or any other location where any other portion of the Work
shall be performed (includingthe Contractor Yard Sites)or
(iii)protection of human health or the environment or emissions,discharges,releases
or threatened releases of pollutants,contaminants,chemicals or industrial,toxic or
hazardous substances or wastes into the environment including ambient air,
surface water,ground water,or land,or otherwise relating to the manufacture,
processing,distribution,use,treatment,storage,disposal,transport,or handling of
pollutants,contaminants,chemicals,Hazardous Materials or other industrial,toxic
materials or wastes;as now or may at any time hereafter be in effect;and
(b)Any requirements or conditions on or with respect to the issuance,maintenance or
renewal of any Applicable Permit or any application therefor.
1.3.Applicable Permits.Each and every national,state and local license,authorization,
certification,filing,recording,permit,waiver,exception,variance,franchise,order or other
approval with or of any Governmental Authority,including each and every environmental,
construction,operating or occupancy permit and any agreement,consent or approval that is
required by any Applicable Laws.
1.4.BES Cyber System Information (BCSI)shall mean information concerning CIPS
Rocky Mountain Power
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Case No.PAC-E-17-07
Witness:Rick A.Vail
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Covered Assets that:(i)relates to the production,generation or transmission of energy;(ii)
could be useful to a person planning an attack on critical infrastructure;and (iii)provides
strategic information beyond the geographic location of the critical asset,and which is
identified as BCSI by Owner.BCSI also includes any information concerning CIPS
Covered Assets that has been identified by Owner as Critical Infrastructure Information (or
CII).
1.5.Business Day.A Day,other than a Saturday or Sunday or holiday,on which banks are
generally open for business in Salt Lake City,UT.
1.6.Cancellation Schedule.The cancellation payment schedule shall mean as set forth in
Exhibit "D".
1.7.Change in Law.The enactment,adoption,promulgation,modification,or repeal after
O the Effective Date of any Applicable Law of any Governmental Authorityof the United
States or the modification after the Effective Date of any Applicable Permit issued or
promulgated by any Governmental Authority of the United States (that could not be
reasonably anticipated on the Effective Date)that establishes requirements that have a
materially adverse effect on Contractor's costs or schedule for performing the Work;
provided,however,neither (a)a change in any national,federal,or any other income tax
law or any other law imposing a tax,duty,levy,impost,fee,royalty,or charge for which
Contractor is responsible hereunder nor (b)a Change in Law that affects Contractor's or
Subcontractor's costs of employment,shall constitute a Change in Law pursuant to this
Contract.Section 4.15 sets out Contractor's rights in the event that an Owner Acquired
Permit has not been issued or an applicationtherefore has not been made on or prior to the
Effective Date.
1.8.Change in Work.A change in the Work as defined in Section 17.1.
1.9.Change in Work Form.The form documenting a Change in Work as attached hereto as
Exhibit "E".
1.10.CIPS Covered Assets.Any assets identified by Owner as "critical assets,""critical
O cyber assets,""BES assets,""BES cyber assets,"or "BES cyber systems,"as those terms
are defined in the North American Electric Reliability Corporation (NERC)Glossary of
Terms."BES"refers to the "Bulk Electric System"as defined by NERC.
Rocky Mountain Power
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1.11.Company.The term as used in the Exhibits hereto has the same meaning as the term
Owner.
1.12.Confidential Information.Information,ideas or materials now or hereafter owned by or
otherwise in the possession or control of,or otherwise relating to,one Party and/or any of
its Affiliates,including inventions,business or trade secrets,know-how,techniques,data,
reports,drawings,specifications,blueprints,flow sheets,designs,engineering,
construction,environmental,operations,marketing,transmission line,substation and
generating station outage schedules and other operating restrictions and conditions,or other
information,together with all copies,summaries,analyses,or extracts thereof,based
thereon or derived therefrom,disclosed by one Party (the "transferor")to the other Party or
any of its Affiliates or any of their respective directors,employees or agents (the
"transferee");provided,however,Confidential Information of Owner shall also mean all
BES Cyber System Information and any information,ideas or materials related to the Work
or the Project obtained,developed or created by or for Contractor in connection with the
Work,or delivered or disclosed to Owner in connection with the Work,together with all
copies,reproductions,summaries,analyses,or extracts thereof,based thereon or derived
therefrom;and provided,further,Confidential Information of Owner shall also mean
information,ideas,or materials disclosed by Owner or any of its Affiliates,or deduced by
O Contractor,any Subcontractor or any of their Affiliates or any of their respective directors,
employees or agents from information supplied by Owner or its Affiliates or agents,or as a
result of visits by Contractor,any Subcontractor,or any of their Affiliates or any of their
respective directors,employees or agents to the premises of Owner or any of its Affiliates
or the Site,which relate to the Project.The terms of this Contract shall also be considered
Confidential Information of the Owner.
1.13.Construction Manager.The permanent,on-Site construction manager designated by
Contractor and approved by Owner in accordance with Section 4.5.
1.14.Contract.This Turnkey Contract for Engineering,Procurement and Construction
Services,including all Exhibits hereto,as the same may be modified,amended,or
supplemented from time to time in accordance with Article 17 and Section 37.4.
1.15.Contract Price.Shall mean the fixed amount for performing the Work that is payable to
Contractor as set forth in Section 6.1,as the same may be modified from time to time in
accordance with the terms hereof.
1.16.Contractor.The term has the meaning as set forth in the first paragraph of this Contract.
[The JV partners shall undertake the duties and obligations of the Contractor under this
O Contract severally and jointly.Even though the joint venture partners have assumed the
duties and obligations of Contractor under this Contract on a joint and several basis,the
Contractor is referred to throughout the Contract Documents as if singular in number.][If
applicable.]
Rocky Mountain Power
Exhibit No.52 Page 12 of 259
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Witness:Rick A.Vail
1.17.Contract Acquired Permits.The Applicable Permits defined in Exhibit "A",Section 17
attached to a particular Release as Contractor Acquired Permits,and any other Applicable
Permits required in connection with the Project or the Work except those Applicable
Permits specified in Exhibit "A",Section 17 attached to a particular Release as Owner
Acquired Permits.
1.18.Contract Term.Shall mean the period commencing upon the execution of this Contract
by Owner and continuing thereafter until December 31,2020,unless earlier terminated as
provided herein.
1.19.Contractor Cause.The term shall mean any of the following:(a)Contractor's
unexcused delay in achieving a Project Guaranteed Date or other breach by Contractor of
its obligations under this Contract,or (b)a Defect.
1.20.Contractor Deliverables.Each of the material documents relating to each particular
Release to be delivered to Owner for review and comment in accordance with the
requirements of this Contract,including Article 12;which shall include the documents set
O forth on the Deliverables Schedule.
1.21.Contractor Environmental Assurance Program.The accepted material documents
provided in compliance with the requirements of Exhibit A,Section 22.
1.22.Contractor Event of Default.The term has the meaning set forth in Section 20.1.
1.23.Contractor Safety Program.The term has the meaning set forth in Section 4.11.
1.24.Contractor Schedule Milestones.The Contractor schedule milestones set forth on
Exhibit "G"as related to each particular Release.
1.25.Contractor's Invoice.An invoice from Contractor to Owner in accordance with Section
Ll_and in the form of Exhibit "F"hereto.
1.26.Contractor Yard Sites.A site(s)in the vicinity of the Site acquired by the Contractor at
its cost and used by the Contractor as a construction equipment or Equipment storage yard,
a site for construction office trailers,a worker reporting location and/or other Project-
related uses.
O l.27.CPCN.The final certificate of public convenience and necessity for a particularproject
as issued by the relevant Governmental Authority.
Rocky Mountain Power
Exhibit No.52 Page 13 of 259
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1.28.Critical Path Item(s).With respect to each Project,any items demonstrated (with
satisfactory evidence provided in accordance with Exhibit "G")to be on the critical path
for the Critical Path Method Schedule prepared by Contractor in accordance with Section
1.29.Critical Path Method Schedule.With respect to each Project a critical path method
schedule prepared by Contractor describing the time of completion of the Work (including
Critical Path Items)by Contractor,setting forth the dependencies among all Critical Path
Items that affect the achievement of the Project Guaranteed Dates,meeting the
requirements set forth in Exhibit "G",and developed and agreed by the Parties in
accordance with Section 4.26.
1.30.Day or day.A calendar day,unless otherwise specified.
1.31.Defect.Unless otherwise specifically defined elsewhere herein,the term Defect
includes any designs,engineering,materials,workmanship,Equipment,tools,supplies,
installation or other Work,which:
(a)Do not conform to the requirements of this Contract;
(b)Are of defective or inferior manufacture,workmanship or materials;
(c)Are inconsistent with Industry Standards;or
(d)Are not suitable for a project of this type.
1.32.Delay Liquidated Damages.Liquidated damages for delay and for the amounts as set
forth in Section 16.1.
1.33.Delav Notice.A Notice of a Force Majeure event,and the estimated delays associated
with such event,as set forth in Section 9.2.
1.34.Deliverables Schedule.With respect to the schedule as described and to be agreed upon
by the Parties in accordance with Section 12.4 that identifies the Contractor Deliverables to
be delivered by Contractor,and Owner's period for review thereof,as such schedule may
be updated from time to time in accordance with Section 12.4 of this Contract.
1.35.Dollars or $.The lawful currency of the United States of America.
1.36.Drawings and Specifications.Drawings,specifications and documents that are part of
the Scope of Work will be prepared by Contractor or any Subcontractor with respect to the
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Work and submitted under this Contract (including those drawings,specifications and
documents identified in the Deliverables Schedule and Exhibit "A",Section 23).
1.37.Effective Date.The term has the meaning as set forth in the first paragraph of this
Contract.
1.38.Equipment.With respect to each Project,all materials,supplies,apparatus,machinery,
equipment,parts,tools,components,instruments,appliances and appurtenances thereto
that are:(a)required for prudent operation of the Project in accordance with Industry
Standards;or (b)described in or required by this Contract,including Exhibit "A"and the
Drawings and Specifications.
1.39.Exhibits.Each exhibit listed in Section 2.1 and attached hereto and incorporated herein
in its entirety by this reference.
1.40.Final Completion.Satisfaction by Contractor or waiver by Owner of all of the
conditions for Final Completion as set forth in Section 15.5.
1.41.Final Completion Certificate.A certificate in substantially the form as set forth in
Exhibit "V"hereto.
1.42.Final Completion Date.The date on which Final Completion of each Project occurs.
1.43.Final Completion Guaranteed Date.The date that is ninety (90)calendar days after the
Project Substantial Completion Date as such date may be modified in accordance with
Article 17.
1.44.Final Contractor's Invoice.With respect to each Project,the final invoice submitted by
Contractor in accordance with Section 7.6.
1.45.Final Payment.With respect to each Project,the final payment made by Owner to
Contractor in accordance with Section 7.6.
1.46.Final Release and Waiver of Liens and Claims.With respect to each Project,a sworn
statement and waiver of liens prepared by Contractor and each Major Subcontractor,as
applicable,which provides that such Person unconditionally waives and releases all
mechanic's liens,stop notices and bond rights with respect to all Work for which
Contractor requested Final Payment in the applicable form set forth in Exhibit "Z".
1.47.Force Ma¡eure.
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(a)Any war (whether declared or not),hostilities,blockade,revolution,insurrection,riot or
terrorist act;expropriation,requisition,confiscation,or nationalization;closing of
harbors,docks,canals,or other assistances to or adjuncts of the shipping or navigation
of or within any place;rationing or allocation as imposed by law,decree,or regulation,
or by any Governmental Authorities;actions of a Governmental Authority (other than
with respect to a Party's compliance with Applicable Laws and Applicable Permits
required in connection with a Party's performance under this Contract);fire or
explosion;unusually severe storms and unusually severe weather conditions occurring
in the vicinity of the Site,including flood,lightning strikes,tornado or hurricane;
unusually severe tide,tidal wave or volcano;accidents of navigation or breakdown or
damage of shipping vessels,or accidents to harbors,docks or canals;epidemic or
quarantine;general labor disturbances not specific to Contractor's or Subcontractor's
personnel;or any other event,matter,or thing,wherever occurring and whether similar
or dissimilar to any of the foregoing;provided,however,that,in each case:(i)such
event,matter or circumstance is not within the reasonable control and is without the
fault or negligence of,or willful misconduct of,or breach of this Contract by the Party
whose performance is affected thereby;(ii)such event,despite the exercise of
commercially reasonable efforts,cannot be or be caused to be prevented,avoided or
O removed by such Party;and (iii)to the extent commercially reasonable,the Party
affected has taken precautions and measures to avoid the effect of such event on such
Party and mitigate the consequencesthereof.
(b)In relation to any labor strikes,disputes,disturbances,or other matters,the following
shall ng constitute Force Majeure:(i)any labor shortages involving the employees or
workers of Contractor or a Subcontractor;or (ii)any labor disturbance or dispute of
Contractor's and/or any Subcontractor's personnel taking place at the Site or a facility
of Contractor or Subcontractor (except if such action is part of a national action).
(c)In addition,and notwithstanding anything in this definition to the contrary,the
following shall ng constitute Force Majeure:(i)mechanical or Equipment failures (so
long as such failure was not itself caused by an event included in part (a)of this
definition);(ii)any Site Condition (so long as the delay was not itself caused by an
event included in part (a)of this defmition);(iii)road embargos by Governmental
Entities as a result of seasonal or other weather conditions;(iv)winds of any speed
(except this shall not mean a tornado or hurricane)or any seasonal or climatic weather
conditions (unless such condition is unusually severe);(v)any condition described in
(a)above that results in increased costs of performance but does not otherwise affect a
Party's ability to perform;(vi)delays in customs clearance (so long as the delay was
not itself caused by an event included in part (a)of this defmition);(vii)delays,
breakdowns and accident in transportation other than delays in transportation due to an
event included in part (a)of this defmition;and (viii)inability of employees or workers
O of Contractor or a Subcontractor to gain physical access to the Site or a Contractor Yard
Site (so long as such inability was not itself caused by an event included in part (a)of
this defmition).
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1.48.Foundation Completion.The term has the meaning set forth in Section 13.1.
1.49.Foundation Completion Certificate.A certificate in substantially the form as set forth in
Exhibit "V"hereto.
1.50.Full Notice to Proceed.The term has the meaning set forth in Section 8.2.
1.51.Full Notice to Proceed Date.The term has the meaning set forth in Section 8.2.
1.52.Governmental Authorities.All United States and other national,federal,state,
provincial and local governments and all agencies,authorities,departments,
instrumentalities,courts,corporations,or other subdivisions of each having or claiming a
regulatory interest in or jurisdiction over the Site,the Contractor Yard Site,the Project,the
Work or the Parties to this Contract.
1.53.Hazardous Materials.Any chemical,material or substance in any form,whether solid,
liquid,gaseous,semisolid,or any combination thereof,whether waste material,raw
O material,chemical,finished product,byproduct,or any other material or article,that is
defined,listed or regulated or as to which liability could be imposed,under Applicable
Laws as a "hazardous"or "toxic"substance or waste or material,or as a "pollutant"or
"contaminant,"(or words of similar meaning or import)or is otherwise listed or regulated
under Applicable Laws,or as to which liability could be imposed,under Applicable Laws
including,without limitation,petroleum products,petroleum derived substances,
radioactive materials,asbestos,asbestos containing materials,polychlorinated biphenyls,
urea formaldehyde foam insulation,and lead-containing paints or coatings.
1.54.Industry Standards.Those standards of engineering,construction,operation,
workmanship,Equipment and components specified in Exhibit "A",provided,however,
that if the relevant standard is not so specified or is ambiguous therein,then Industry
Standards shall mean those standards of construction,workmanship,operation,care and
diligence normally practiced in the United States by nationally recognized engineering and
construction firms in performing services of a similar nature and in accordance with:(a)
Applicable Laws and Applicable Permits;(b)other standards and codes established for
such work;and (c)those standards (including of operation)established and/or recognized
as prudent utility practice in the Western United States.Industry Standards are not
necessarily defined as the optimal standard,practice or method to the exclusion of others,
but rather refer to a range of actions reasonable under the circumstances.For purposes of
this definition:(i)the Contractor Deliverables must comply with Industry Standards at the
time that they are submitted to Owner;and (iii)the Work performed must comply with the
Industry Standards at the time that it is performed.
1.55.Interconnection.The connection of each applicable part of the Project to the
Transmission Grid such that the applicable part of the Project is energized at the nominal
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system operating voltage for which such part of the Project is designed as further described
in Exhibit "A"and/or such that the Project delivers power and energy to energize the
Project for Tests.
1.56.Key Personnel.The natural persons named in Exhibit "J"Land Rights Agreements.
Those agreements and other documents or instruments with respect to the Site identified
and set forth in Exhibit "A",Section 18
1.57.Letter of Credit.The term shall mean the Performance LOC,the Retainage LOC (if
applicable)and the Warranty LOC.
1.58.Lien Indemnitees.The term has the meaning set forth in Article 32.
1.59.Limited Notice to Proceed.A Notice provided by Owner directing Contractor to
perform a specified range of services or deliverables as described within Exhibit A,G or I,
pursuant to the provisions of Section 8.1.
1.60.Loss(es).Any and all liabilities (including liabilities arising out of the application of the
doctrine of strict liability),obligations,losses,damages,penalties,fines,claims,actions,
suits,judgments,costs,expenses and disbursements,whether any of the foregoing be
founded or unfounded,(including reasonable legal fees and expenses and reasonable third
party costs of investigation),of whatsoever kind and nature and whether or not involving
damages to the Project or the Site.
1.61.Major Subcontractor.Any Subcontractor where the aggregate value of the applicable
subcontracts and purchase orders between it and the Contractor (or other Subcontractor as
applicable)with respect to the Project exceeds (or is reasonably expected by Contractor to
exceed)$500,000.
1.62..
1.63.Materials Warranty.The warranty of Contractor under Section 18.2.
1.64.Maximum Aggregate Liquidated Damages.Ten percent (10%)of the Contract Price
as the Contract Price may be adjusted from time to time in accordance with the terms
hereof.
O 1.65.Mechanical Completion Test Procedures.The written procedures for the Mechanical
Completion Tests produced by Contractor and agreed to by Owner in accordance with
Article 14 and Exhibit "A".
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1.66.Mechanical Completion Tests.Those tests identified to be performed by the Contractor
in connection with the construction and commissioning of the Project in accordance with
Exhibit "A"and Article 14.
1.67.MonthlyProgress Report.A written monthly progress report prepared by Contractor in
form and content generally in accordance with Exhibit "A",Section 19 Notice.A written
communication between the Parties required or permitted by this Contract and conforming
to the requirements of Article 33.
1.68.Owner.PacifiCorp,an Oregon Corporation or as Owner may assign to an Affiliate per
Article 29.
1.69.Owner Acquired Permits.The Applicable Permits defined as Owner Acquired Permits
in Exhibit "A",Section 17.
1.70.Owner Caused Delay.Owner's unexcused delay in performing or failure to perform
any obligation of Owner under this Contract (other than as a result of Force Majeureor by
O Owner's exercise of rights under this Contract,including the exercise by Owner of the right
to have defective or nonconforming Work corrected or re-executed).
1.71.Owner's Engineer.The engineering firm or other engineer or engineers (which may be
employees of Owner)selected and designated by Owner.
1.72.Owner's Facilities.The term shall mean any facilities owned,operated or otherwise
controlled by Owner,which requires Owner authorization to obtain access.
1.73.Owner's Scope.The work associated with the Project for which Owner is responsible
and which is expressly identified as such in Exhibit A.
1.74.Owner Event of Default.The term has the meaning set forth in Section 20.4.
1.75.Owner Milestones.The term has the meaning set forth in Section 3.2.
1.76.Parent Guarantor.The Parent Guarantor is Ï 1-
1.77.Parent Guaranty.The guarantee of the Parent Guarantor referred to in Section 35.2 in
the form set forth in Exhibit "M".
O 1.78.Parent Legal Opinion.A legal opinion of legal counsel to the Parent Guarantor
reasonably acceptable to Owner in the form set forth in Exhibit "M".
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1.79.Partial Release and Waiver of Liens and Claims.A sworn statement and waiver of liens
prepared by Contractor and each Major Subcontractor,as applicable,which provides that
such Person waives and releases all mechanic's liens,stop notices and bond rights with
respect to that portion of Work for which Contractor requested payment in the current
Contractor's Invoice conditioned upon payment by Owner of the amount of such
Contractor's Invoice in the applicable form set forth in Exhibit "Z".
1.80.Party and Parties.The terms have the meanings set forth in the first paragraph of this
Contract.
1.81.Performance LOC.An irrevocable transferable letter of credit that is (a)issued for the
benefit of Owner by a Qualified Bank that is acceptable to Owner,in Owner's sole
discretion;(b)is in the stated amount equal to ten percent (10%)of the Contract Price;and
(c)is substantially in the form of Exhibit "O-1".The Performance LOC terminates in
accordance with Section 35.2.
1.82.Person.Any individual,corporation,company,voluntary association,partnership,
incorporated organization,trust,limited liability company,or any other entity or
organization,including any Governmental Authority.
1.83.Prime Rate.The interest rate per annum 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),determined as of the date the obligationto pay interest arises.
1.84.Progress Payment(s).A discrete portion of the Contract Price,payable pursuant to the
Progress Payment Schedule,as a progress payment for completion of discrete portions of
Work,in accordance with Section 7.1.
1.85.Progress Payment Schedule.A schedule of payments attached as Exhibit "D"
Attachment 1,setting forth payments,calculated based upon a forecast earned value basis
from the Critical Path Schedule,payable to the Contractor,in accordance with Section 7.1,
pursuant to the Progress Payment Schedule,as a payment for maintaining the Interim
Progress Milestones in accordance with the Interim Progress Milestones and Exhibit "G".
1.86.Project.The complete electric substations to be designed,procured,constructed,tested
and commissioned under this Contract,together with all ancillary Equipment and
subsystems,together with all supporting improvements and connections,as generally
described in,and including all items described in,the Scope of Work.The Project generally
consists of the Work related the engineering,procurement and construction of three (3)
O substations 345 kV substations and associated transmission structures known Dixie Deer,
Red Butte,and Sigurd substations.The term Project shall mean three (3)substations;a)
Aeolus 500/230kV,Anticline 500/345kV,Jim Brideer 345kV Bay Expansion.,The
Project generally consists of the Work.
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1.87.Project Guaranteed Dates.The Project Mechanical Completion Guaranteed Date,the
Project Substantial Completion Guaranteed Date and the Final Completion Date (provided,
however,that the Final Completion Date does not have any Delay Liquidated Damages
related thereto).
1.88.Project Manager.The Project Manager designated by Contractor and approved by
Owner pursuant to Section 4.5.
1.89.Project Mechanical Completion.Satisfactory completion by Contractor of all
conditions necessary to achieve Project Mechanical Completion for the entire Project,as
set forth in Section 13.2.
1.90.Project Mechanical Completion Certificate.A certificate in substantially the form as
set forth in Exhibit "V"hereto,which Contractor shall submit upon completion of the
entire Scope of Work as described in Exhibit "A",in accordance with the definition within
Article 1.89.
1.91.Project Mechanical Completion Date.The date on which Project Mechanical
O Completion actually occurs and the entire Scope of Work described in Exhibit "A"is
completed in accordancewith the defmition within Article 1.894.
1.92.Project Mechanical Completion Guaranteed Dates.The Project Mechanical
Completion milestone date(as such date may be modified in accordance with Article 17),
as set forth in Exhibit G,Attachment G.l.1.
1.93.Project Representative.The Project Representative designated by Owner pursuant to
Section 3.1.
1.94.Project Warranties.The warranties of Contractor as set forth in Article 18.
1.95.Punchlist.A schedule of Punchlist Items developed pursuant to Section 15.l(h),which
list must be reasonably satisfactory to Owner.
1.96.Punchlist Items.Each item of Work that:(a)Owner or Contractor identifies as
requiring completion or containing Defects;(b)does not impede the ability of Owner to
safely operate the Project in accordance with Industry Standards;(c)does not affect the
operability (including the capacity,efficiency,reliability,or cost effectiveness),safety or
mechanical or electrical integrity of the Project or the Transmission Grid;and (d)the
completion or repair of which will neither interfere with,nor adversely affect,the
performance of the Project or the Transmission Grid.
1.97.Qualified Bank.A United States branch of any United States bank whose secured debt
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obligations or long-term deposits are rated at least "A-"by Standard &Poors (or the
equivalent rating thereof by Moody's)as at the date of issuance,and during the term,of
any Letter of Credit.
1.98.Quality Assurance Program.The Contractor's quality assurance program for the Work
as defmed in Section 4.17.
l.99.Required Manuals.All manufacturers'operating data and manuals,Equipment and
parts manuals,integrated and coordinated operation and maintenance manuals and
instructions,and training aids reasonably necessary to safely,effectively and efficiently
commission,test,start up,operate,maintain and shut down the Project,including those set
out in the Deliverables Schedule.
1.100.Retainage.The amount withheld from payments to Contractor pursuant to Section
7.5.
1.101.Retainage LOC.An irrevocable transferable letter of credit that is (a)issued for
the benefit of Owner by a Qualified Bank that is acceptable to Owner,in Owner's sole
discretion;(b)is in the amount not less than the amount as required by Section 7.5;and (c)
is substantially in the form of Exhibit "O-2".The Retainage LOC terminates in accordance
with Section 7.6.
1.102.Schedule Recovery Plan.The term has the meaning set forth in Section 8.3.
1.103.Scope of Work.The requirements and specifications regarding the Work set forth
under a particular Release,including Exhibit "A".
1.104.Sensitive Personnel.The term shall mean all Personnel with authorized
unescorted physical access or authorized cyber access to Owner's CIPS Covered Assets.
1.105.Site.Those areas of real estate described in Exhibit "A",Section 18 for the
performance of Work which may consist of existing or new substation sites,including any
additional areas as may,from time to time,be designated in writing by Owner (in Owner's
sole discretion)for Contractor's use hereunder.The term Site shall mean all three (3)
substation sites collectively,and each individual substation Site,as the context requires.
1.106.Site Conditions.The term has the meaning set forth in Section 4.38.
1.107.Spare Parts.The term has the meaning set forth in Section 4.32.
1.108.Subcontractor.Any Person,other than Contractor,performing any portion of the
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Work (including any Subcontractor of any tier and any Vendor)in furtherance of
Contractor's obligations under this Contract.
1.109.Substantial Completion.Satisfaction by Contractor or waiver by Owner of all of
the conditions for Substantial Completion as set forth in Section 15.1.
1.110.Substantial Completion Certificate.A certificate in substantially the form as set
forth in Exhibit "V"hereto.
1.111.Substantial Completion Date.The date,on which Substantial Completion actually
occurs.
1.112.Substantial Completion Guaranteed Date.The Substantial Completion milestone
date (as such date may be modified in accordance with Article 17),as set forth in Exhibit
G,Attachment G.1.1.
1.113.Transmission Grid.The electric transmission and distribution system of Owner,or
any other affected transmission owner or operator,and the electric transmission and
distribution systems interconnecting to or adjacent to Owner's or other affected
transmission owner or operator,electric transmission and distribution system.
1.114.Unescorted Personnel.The term shall mean all Personnel with authorized
unescorted physical access to Owner's Facilities.
1.115.U.S.Customary System.The primary system of weights and measures (other than
the metric system)used in the U.S.today inherited from,but now different from,the
British Imperial System of weights and measures.
1.116.Vendor(s).Persons that supply Equipment to Contractor or any Subcontractor in
connection with the performance of the Work.
1.117.Warranty LOC.An irrevocable transferable letter of credit that is:(a)issued for
the benefit of Owner by a Qualified Bank that is acceptable to Owner,in Owner's sole
discretion;(b)is in the stated amount equal to five percent (5%)of the Contract Price;and
(c)is substantially in the form of Exhibit "O-3".The Warranty LOC shall terminate in
accordance with Section 35.2.
1.118.Warranty Period.The term has the meaning as set forth in Section 18.3.
1.119.Warranty Procedures.The term has the meaning as set forth in Section 18.8.
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1.120.Work.All work and services required or appropriate in connection with the
engineering,procurement,manufacturing,construction,erection,installation,training,
commissioning (including inspection),testing and completion and all Equipment,and as
further described in Section 4.1,including the Pre-Construction Services.
1.121.Workers'Compensation Laws.The term has the meaning as set forth in Section
4.24.
2.EXHIBITS,INTERPRETATION,CONFLICTS
2.1 Exhibits.This Contract includes the following Exhibits annexed hereto (and
incorporates all attachments to such Exhibits,if any)and any reference in this Contract
to an Exhibit by letter designation,Exhibit or title shall mean one of the following so
indicated and such reference shall indicate such Exhibit herein.
EXHIBITS
A Scope of Work and Specifications
B Pre-Construction Services
C-1
D Progress Payment Schedule and Schedule of Values
E Change in Work Form
F Form of Contractor's Invoice
G Critical Path Method Schedule
H Deliverables Schedule I Owner Milestones
J Key Personnel
K Not Used
L Not Used
M Form of Parent Guarantee and Legal Opinion
N Not Used
O Form of Letters of Credit
P Form of Assignment Clause for Subcontractors
Q Insurance
R Detailed Pricing Schedules,Change in Work Rates and Unit
Price Change in Work Rates
S Background Check Criteria /NERC-CIPS Standards
T Contractor's Safety Assurance Program
U Contractor's Quality Assurance Programs
V Forms of Completion Certificates
W Owner's Site Access and Safety Requirements
X Not Used
Y Property Retirement Unit Reporting Requirements
Z Forms of Partial and Final Release and Waiver of Liens and Claims
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2.2 Interpretation.Except as otherwise expressly noted:
(a)Terms defined in a given number,tense or form shall have the corresponding
meaning when used in this Contract with initial capitals in another number,tense or
form;
(b)Except as otherwise expressly noted,reference to specific Sections,Subsections and
Exhibits are references to such provisions of or attachments to this Contract;
(c)References containing terms such as "hereof,""herein,""hereto,""hereinafter,"and
other terms of like import are not limited in applicability to the specific provision
within which such references are set forth but instead refer to this Contract taken as a
whole;
(d)"Includes"or "including"shall not be deemed limited by the specific enumeration of
items,but shall be deemed without limitation;
(e)References to agreements,certificates and other legal instruments include all
subsequent amendments thereto,and changesto,and restatements or replacements of,
such agreements,certificates or instruments that are duly entered into and effective
against the parties thereto or their permitted successors and assigns;
(f)References to Persons include their permitted successors and assigns;
(g)A reference to a statute or to a regulation issued by a Governmental Authority
includes the statute or regulation in force as of the date hereof,together with all
amendments and supplements thereto and any statute or regulation substituted for
such statute or regulations;
(h)A reference to a governmental agency,department,board,commission or other
public body or to a public officer includes an entity or officer that or who succeeds to
substantially the same functions as those performed by such public body or officer as
of the Effective Date;
(i)Unless the context clearly intends to the contrary,words singular or plural in number
shall be deemed to include the other and pronouns having a masculine or feminine
gender shall be deemed to include the other;
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(j)Unless otherwise stated,words which have well known technical or construction
industry meanings are used in this Contract in accordance with such recognized
meanings;and
(k)The words "acceptable to","approved by,""satisfactory to,""determine that,"
"consent of'or other phrases of like effect or import shall mean that,unless expressly
stated otherwise (including where the Contract provides a time period for such
action),the Party exercising such right of acceptance,approval or judgment shall be
reasonable under the circumstances and shall not unduly delay or withhold such
acceptance,approval,consent or judgment.
2.3 Conflicts in Documentation.
(a)In the event of any conflict between this document and any of the Exhibits hereto,
the terms and provisions of this document,as amended from time to time,shall control,
unless expressly stated otherwise in this document.
(b)Should there be any conflict between or within the Exhibit(s)(including the
attachments to the Exhibits)hereto,the Contractor shall promptly give Notice to Owner
and shall secure written instructions from the Project Representative before proceeding
with the Work affected thereby.Upon receiving written instructions from the Project
Representative,Contractor shall proceed as instructed.
2.4 Documentation Format.This Contract and all documentation to be supplied hereunder
shall be in the English language.
3.RESPONSIBILITIES OF OWNER.
Owner shall:
3.1 Project Representative.Designate (by a Notice delivered to Contractor)a Project
Representative,who shall act as a single point of contact for Contractor with respect to
the prosecution of the Work but who shall not be authorized to execute or approve any
Change in Work or any amendments to this Contract.
O 3.2 Owner Milestones.Owner shall commence or complete,as the case may be,the
Owner's Scope in accordance with the milestones set forth on Exhibit "I"("Owner
Milestones")in accordance with the schedule,terms and conditions set forth in Exhibit
"I"with respect to each applicable Owner Milestone.Owner and Contractor agree that
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the timely completion of the Contractor Schedule Milestones by Contractor is an
important aspect of this Contract.In the event Contractor's failure to timely complete a
Contractor Schedule Milestone by the date provided in Exhibit G.1.1 or a Contractor
Cause results in Owner's failure to complete an Owner Milestoneby the applicable date
provided in Exhibit "I"or otherwise causes Owner to incur additional costs and
expenses in connection with the performance of its work related to any Owner
Milestones,then:(a)the Owner Milestonedate shall be adjusted to reflect any delays to
the extent caused by Contractor;and (b)Contractor shall pay Owner for any additional
costs and expenses reasonably incurred by Owner as a result of any such delay.
3.3 Ministerial Assistance.In a reasonably prompt manner after Notice from Contractor,
execute applications as Contractor may reasonably request in connection with obtaining
any Contractor Acquired Permits.Contractor shall indemnify,defend,and hold
harmless Owner from and against any and all Losses that Owner may incur as a result
of signing any such applications at Contractor's request.
3.4 Owner Acquired Permits.Obtain with Contractor's reasonable assistance to be
provided at no cost to Owner,and pay for all Owner Acquired Permits.
3.5 Access to Site.Subject to Section 4.18,the Land Rights Agreements and the terms of
the Applicable Permits,Owner shall make the designated parts of the Site reasonably
available to Contractor on or prior to the applicable Owner Milestone for such part of
the Site so as to permit the Contractor to perform the Work applicable to such part of
the Site;provided,however,that Contractor shall coordinate with Owner regarding
initial entry onto the Site or any part thereof and contact with the Persons who own
property on or near,or have granted license or easement rights in and to,the Site.
Contractor shall be solely responsible for all costs and expenses required to upgrade
(including paving if required),repair and maintain any existing roads and to construct,
repair and maintain any temporary roads in connection with the Project.Contractor
shall be solely responsible for all costs and expenses required to repair any damages to
the Site arising as a result of Contractor's performance of the Work;and without
limiting the generality of this sentence,shall also be responsible for the specific
damages in accordance with Exhibit "A",Section 18.
3.6 Hazardous Materials.Owner shall be responsible for all Hazardous Materials (other
than Hazardous Materials for which Contractor is responsible pursuant to Section 4.33)
at the Site as of prior to the Effective Date and for any Hazardous Materials
subsequently brought to the Site by Owner or anyone employed by the Owner (other
than Contractor,Subcontractor,anyone employed by them,or anyone for whose acts
O Contractor or any Subcontractor may be liable).Owner shall,with respect to those
Hazardous Materials identified above in this Section,and at Owner's sole cost and
expense,be responsible for:(a)the proper handling,storage,collection,containment,
removal,transportation and disposal from the Site of all such Hazardous Materials;and
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(b)any environmental condition caused by such Hazardous Materials.
4.RESPONSIBILITIES OF CONTRACTOR.
Contractor shall:
4.1 Performance of Work.Perform or cause to be performed all Work for the engineering,
procurement,construction,erection,installation,commissioning and testing of the Project
and the other materials,equipment,machinery and facilities;which work and services shall
include the provision of all permits,materials,Equipment,machinery,tools,labor,
transportation,administration and other services and items required to complete and deliver
to Owner the fully integrated and operational Project,all on a fixed-price,turnkey,
guaranteed-date basis,and otherwise in accordance with the Contract ,Applicable Laws and
Industry Standards.Contractor hereby agrees to perform or cause to be performed all Work
upon the terms and conditions of this Contract.
Contractor shall perform and complete all of the Work on a turnkey basis without any
O Defects,in accordance with the terms of this Contract and in compliance with Industry
Standards,Applicable Laws and Applicable Permits;provided,however,that where any
such standard,law,permit or contract provides for less stringent standards than those
specifically stated in this Contract,the standards specifically stated in this Contract shall
govern.
Where this Contract describes a portion of the Work in general,but not in complete detail,
the Parties acknowledge and agree that the Work includes any incidental work that within
the construction industry is customarily included in projects of the type contemplated by this
Contract or by Industry Standards.
Contractor shall design the Project so that it is capable of operation,at the design levels
specified in the Scope of Work,including Exhibit "A",in compliance with Industry
Standards,Applicable Laws and Applicable Permits.Contractor shall design the Project so
that it will allow operation of the Project and its component parts over the full range of
operative and ambient conditions while meeting Applicable Laws,Applicable Permits and
Industry Standards.Contractor acknowledges that this Contract constitutes a fixed price
obligation to engineer,design,procure,construct and test through Substantial Completion a
turnkey project,complete in every detail,within the time and for the purpose specified
herein by Owner.
References to the obligations of Contractor under this Contract as being "turnkey"and
performing the Work on a "turnkey basis"mean that Contractor is obligated to supply all of
O the Equipment,labor and design services and to supply and perform all of the Work,in each
case as may reasonably be required,necessary,or appropriate (whether or not specifically
set forth in this Contract)to complete the Work such that the Project satisfies the applicable
terms and conditions set forth in this Contract,all for the Contract Price.
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The Project shall be built in a manner so that none of the Work (including the Equipment)
will be determined,for insurance purposes,to be "prototype equipment."
4.2 Cost of Work.Furnish,be responsible for,and pay the cost of all of the Work including
labor,materials,Equipment and supervision necessary to engineer,procure,expedite,
deliver,receive,secure,off-load,store,construct,inspect,commission and test the Project,
in strict accordance with the provisions of this Contract,including all access roads,site
work,footings,foundations,pilings,drilled piers,construction materials,construction
equipment,and auxiliaries.
4.3 Facilities.Provide all communication facilities,material storage and laydown areas,
construction water,construction electricity and sanitary facilities to be used by Contractor
and Subcontractors during performance of the Work.
4.4 Organization.Maintain a qualified and competent organization at the Site with adequate
capacity and numbers of construction and commissioning personnel,construction
O equipment,tools,materials,supplies and facilities to execute the Work in a safe,efficient,
environmentallysound,and professional manner at a rate of progress in accordance with the
Critical Path Method Schedule.
4.5 Project Manager/Staff.Designate a Project Manager acceptable to Owner who will have
full responsibility for the prosecution of the Work and will act as a single point of contact in
all matters on behalf of Contractor.Designate a Construction Manager and provide staff to
supervise,manage and coordinate the Work of Contractor and Subcontractors on the Site.
The Key Personnel shall at all times hold the positions and be dedicated to the performance
of the duties described in Exhibit "J".Any replacement of the Project Manager or Key
Personnel shall be subject to the prior written consent of Owner which consent will not be
unreasonably withheld.If Owner fails to respond to a request for consent within ten (10)
Business Days after Owner's receipt of Contractor's request,Owner shall be deemed to
have consented to the proposed individual.
4.6 Contractor Acquired Permits.Obtain all Contractor Acquired Permits and provide
copies to Owner at Owner's request.
4.7 Inspection.Perform all inspection;expediting,quality surveillance,and other like
services required for performance of the Work,including inspecting all materials and
Equipment that comprise the Project or that are to be used in the performance of the Work.
Contractor shall be responsible for determining all utility locations,underground
obstructions,archeological and cultural resources at its own expense prior to undertaking
any Work at the Site.
4.8 Maintenance of Site.Maintain the Site and any Contractor Yard Site clear of Hazardous
Materials,debris,waste material and rubbish.All trash,debris and waste materials shall be
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removed from the Site and disposed of by Contractor,in a timely manner.All waste must
be disposed of at a permitted sanitary disposal site,and Contractor shall provide Owner
copies of all waste disposal manifests.Combustible material shall be promptly removed
from the Site or Contractor's Yard Site,and shall not be allowed to accumulate.Burning on
the Site and the Contractor Yard Site is prohibited.Promptly upon the completion of the
Work,the Work shall be cleaned and all scrap,trash,and waste materials and debris
resulting from Work under this Contract shall be removed from the Site and the Contractor
Yard Site.All Contractor-owned facilities,materials and construction equipment shall be
removed from the Site and the Contractor Yard Site and such sites shall be left in its original
condition,except to the extent it has been modified pursuant to this Contract.If Contractor
fails to clean up as provided herein,Owner may do so and the reasonable cost thereof shall
be charged to Contractor or offset against payments hereunder.
4.9 Price Allocation Schedule.Upon Owner's reasonable requests,provide a price
allocation schedule for the Work and other information reasonably necessary for Owner to
maintain segregated accounts for its accounting and tax records,ownership records and/or
fixed asset records.
4.10 Site Security.Contractor shall provide all necessary and reasonably appropriate
security measures for the protection of the Work,the Site,the Contractor Yard Site and the
O Project.Contractor will consult with and cooperate with Owner in the development and
implementation of security practices and programs for the Project.Contractor shall prepare
and maintain accurate reports of incidents of loss,theft,or vandalism and shall furnish these
reports to Owner in a timely manner.Contractor shall not be entitled to any adjustment of
the Substantial Completion Date or any adjustment to the Contract Price arising from
incidents of Equipment theft or vandalism.
4.11 Contractor Safety Program.Contractor shall comply with the requirements of Exhibit
"A",the Contractor Safety Program set out in Exhibit "T",and Owner's Safety
Requirements set out in Exhibit "W"(including any third party safety requirements that are
applicable to portions of the Work and stated in Exhibit "W"),and provide all necessary and
reasonably appropriate safeguards at the Site and any Contractor Yard Site for the protection
of all Persons and the Work.Contractor shall not perform any Work at the Site until and
unless a safety plan applicable to such Work is either included in Exhibit "T"or included in
the fully integrated safety program delivered and accepted by Owner in accordance with this
Section 4.11.In the event Contractor fails to comply with the safety program requirements
set forth in this Contract,Owner shall be entitled to immediately suspend the Work until
non-compliance is rectified,and neither the Contract Price nor any other Project Guaranteed
Dates shall be adjusted as the result of any such suspension.
Within sixty (60)days of the effective date,Contractor shall provide,by Notice to Owner,a
Contractor Project safety program that has fully integrated the requirements in Exhibit "A",
Exhibit "T"and Exhibit "W"and that is prepared specifically for this Project (the
O "Contractor Safety Program").Owner shall have the right to review and comment on such
program and if Owner provides Contractor with comments,then Contractor shall
incorporate such changes into such program.If Owner fails to comment within fifteen (15)
days after receipt of such notice,Owner shall be deemed to have accepted such Contractor
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Safety Program.Upon acceptance (or deemed acceptance)of such program by Owner,such
program shall supersede and be deemed to replace the program attached as Exhibit "T"
hereto.In the event the standards or requirements derived from the foregoing are
inconsistent,Contractor shall perform,or cause to be performed,its obligations in
accordance with the requirements of the most stringent rule,standard,criteria or guideline.
Notwithstanding Owner's review and approval of the Contractor Safety Program,
Contractor shall remain solely responsible for performing the Work in accordance with this
Contract.
Contractor shall provide Project Representative with immediate telephone or email
notification followed by Notice to Owner within twenty-four(24)hours of any accidents
and/or occupational injuries or vehicle accidents that occur to any of Contractor's or
Subcontractor's employees working on or in the vicinity of the Site or a Contractor Yard
Site,any damages to Owner's facilities,any property damage,bodily injury,electric
contact,or fatality that arises in connection with the performance of this Contract on or in
the vicinity of the Site or Contractor Yard Site which such notice shall be on the Owner's
form included in the materials attached as part of Exhibit "W".Contractor will furnish
Owner with a copy of all accident reports or work injuryreports as promptly as possible and
in any event within twenty-four(24)hours of such accident or work injury and in the event
O any further reports are completed after such initial reporting,Contractor shall promptly
provide Owner a copy.Contractor shall assist Owner in any investigation and provide
information as reasonably requested by Owner relating to the incident.Contractor shall
provide Owner with a 'root cause analysis'of the accident or incident within three (3)
business days of the accident or incident occurring.All accident and incident reports shall
comply with Applicable Laws.Contractor shall provide Owner with copies of all written
communications with Governmental Authorities and insurance companies (including any
notices)with respect to accidents that occur at the Site.
4.12 Equipment.Arrange for complete handling of all Equipment and construction
equipment including inspection,expediting,quality assurance,shipping,loading,unloading,
customs clearance,permitting and licensing,receiving,storage,and claims.
4.13 Construction Materials and Supplies.Provide all temporary construction materials,
office and meeting facilities,all communication lines and facilities,warehousing and
storage facilities,fuel storage facilities,sanitary facilities,parking facilities for Contractor's
and Subcontractors work force,laydown areas,equipment,supplies,construction utilities
and facilities,special tools,and commissioning supplies reasonably necessaryor appropriate
for the construction,testing,commissioning,and operation and maintenance of the Project
until achievement of Substantial Completion.Contractor shall provide internet access and
telephone access at the construction Site office.By delivery of a Notice to Owner prior to
the disposition of any surplus construction materials,parts,or supplies remaining on the Site
on the Substantial Completion Date (other than materials and supplies necessary to achieve
O Final Completion),Contractor shall give Owner the option to purchase all or part of such
items at a price not exceeding Contractor's cost therefor.Owner shall exercise such right,if
it so elects,within thirty (30)days after receipt of such Notice.
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4.14 Contractor's Personnel/Drugs,Alcohol and Firearms.Contractor shall employ in the
performance of the Work only persons qualified for the same.Contractor shall at all times
enforce strict discipline and good order among its employees and the employees of any
Subcontractor of any tier.Contractor shall not permit or allow the introduction or use of any
firearms,illegal drugs or intoxicating liquor upon the Work under this Contract,or upon any
of the grounds occupied,controlled or used by Contractor in the performance of the Work.
Contractor shall immediately remove from the Work,whenever requested by Owner,any
person considered by Owner to be incompetent,insubordinate,careless,disorderly,or in
violation of the above restriction on firearms,illegal drugs or intoxicating liquor,or under
the influence of illegal drugs or intoxicating liquor,and such person shall not again be
employed in the performance of the Work herein without the consent of Owner.
4.15 Applicable Laws/Permits.Contractor shall provide all technical support and
information,and other reasonably requested information,to assist the Owner in applying for
and obtaining Owner Acquired Permits.Contractor shall comply in all respects with all
Applicable Laws and Applicable Permits relating to the Project,the Site,the Contractor
Yard Site and the performance of the Work.The Contractor Acquired Permits either have
been obtained by Contractor and are in full force and effect on the Effective Date or will be
obtained by Contractor and will be in full force and effect on or prior to the date on which
O they are required,under Applicable Laws,to be in full force and effect,so as to permit
Contractor to commence and prosecute the Work to completion in accordance with the
Critical Path Method Schedule.
Without limiting the generality of the foregoing,Contractor shall comply with all
Applicable Laws and Applicable Permits regarding environmental matters.Prior to
proceeding with construction activities,Contractor must develop an environmental
assurance plan complying with the requirements of Exhibit "A",Section 22.Contractor's
environmental assurance program will be subject to Owner's review and approval.Delays
incurred due to Contractor's failure to provide an environmental assurance program
approved by Owner will not constitute a Change in Work.Within forty-five (45)days of
the Effective Date,Contractor shall provide,by Notice to Owner,a Contractor
environmental assurance program that has fully integrated the requirements in Exhibit "A",
Section 22 and that is prepared specifically for this Project (the "Contractor Environmental
Assurance Program").Owner shall have the right to review and comment on such program
and if Owner provides Contractor with comments,then Contractor shall incorporate such
changes into such program.If Owner fails to comment within fifteen (15)days after receipt
of such notice,Owner shall be deemed to have accepted such Contractor Environmental
Assurance Program.Upon acceptance (or deemed acceptance)of such program by Owner,
such program shall supersede and be deemed to replace the program attached as Exhibit A,
Section 22"hereto.In the event the standards or requirements derived from the foregoing
are inconsistent,Contractor shall perform,or cause to be performed,its obligations in
accordance with the requirements of the most stringent rule,standard,criteria or guideline
and in all events in compliance with Applicable Laws and Applicable Permits.
Notwithstanding Owner's review and approval of the Contractor Environmental Assurance
Program,Contractor shall remain solely responsible for performing the Work in accordance
with this Contract.
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Contractor shall be responsible for all Losses that may arise (including those that Owner
pays or becomes liable to pay)because of non-compliance with requirements in this Section,
other than any such Losses arising from:(a)the acts or omissions of Owner,Owner's
employees and agents,or other third parties under the control of Owner,or (b)Hazardous
Materials for which Owner is responsible pursuant to Section 3.6.
So long as Contractor has complied with its obligationto provide support and information as
described above,Contractor shall be entitled to request a Change in Work in accordance
with Article 17 in the event the final conditions,obligations and/or requirements of an
Owner Acquired Permit (as identified in Exhibit "A",Section 17 as not being in final form
as of the Effective Date)are different than those conditions,obligations and/or requirements
that should have been reasonably anticipated by the Contractor based upon the Scope of
Work,Industry Standards,and the applicable permit application or draft permit (if and as
provided to Contractor by Owner prior to the Effective Date)and such difference has a
materially adverse effect on Contractor's costs and schedule for performing the Work.
Notwithstanding the forgoing,variances to Owner Acquired Permits that are not directed
and approved by Owner will not constitute a Change in Work.
4.16 Replacement at Owner's Request.Within two (2)Business Days after request by
Owner,remove from the Site and performance of the Work,and cause any Subcontractor to
O remove from the Site and performance of the Work,and as soon as reasonably practicable,
replace,any individual performing the Work (including any of the Key Personnel)whom
Owner believes to be creating a safety hazard or a material risk of:(a)non-achievement of a
Project Guaranteed Date;or (b)material non-performance by Contractor in accordance with
this Contract.
4.17 Quality Assurance Programs.Use effective quality assurance programs,acceptable to
Owner and consistent with the requirements of Exhibit "A"and the Quality Assurance
Program set out in Exhibit "U"in performing the Work.Within forty-five (45)days of the
Effective Date,Contractor shall provide by Notice to Owner a Quality Assurance Program
that has fully integrated the requirements in Exhibit "A"and Exhibit "U"and that is
prepared specifically for this Project ("Quality Assurance Program").Owner shall have the
right to review and comment on such program and if Owner provides Contractor with
comments,then Contractor shall incorporate such changes into such program.If Owner
fails to comment with fifteen days after receipt of such notice,Owner shall be deemed to
have accepted such program.Contractor shall not perform any Work until and unless a
quality assurance program applicable to such Work is either included in Exhibit "U"or
included in the Quality Assurance Program delivered and accepted by Owner in accordance
with this Section 4.17.Upon acceptance (or deemed acceptance)of such program by
Owner,such program shall supersede and be deemed to replace the program attached as
Exhibit "U"hereto.Notwithstanding Owner's review and approval of such program,
Contractor shall remain solely responsible for performing the Work in accordance with this
Contract.
4.18 Access.Contractor and its Subcontractors may access those parts of the Site identified
in Exhibit "I"as being available to be accessed by Contractor for the performance of the
Work on the date of the corresponding Owner Milestoneas set forth on Exhibit "I",and any
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such access by Contractor and its Subcontractors shall be in accordance with the terms of
this Contract.In no event shall Contractor or any Subcontractor commence any Work upon
any portion of the Site unless and until Owner issues a Notice to Contractor that such
portion of the Site may be accessed by the Contractor to perform the Work,and then upon
such issuance Contractor shall only be permitted to access those portions of the Site
reasonably required to be accessed to perform the Work that is the subject of the applicable
Notice,unless otherwise agreed in writing by Owner.
Contractor shall use only the entrance(s)to the Site as specified by Owner for ingress and
egress of all personnel,equipment,vehicles and materials..
Contractor shall not damage,close,or obstruct any highway,road,or other public or private
easement,except to the extent allowed by Applicable Permits.If such facilities are closed,
obstructed,damaged,or made unsafe by Contractor,Contractor shall,at its sole expense,
make such repair as necessary and shall also provide such temporary guards,lights,and
other signals as necessary or required for safety or as reasonably requested by Owner.
Owner shall have access to all existing facilities in case emergency repairs are necessary.
Contractor shall not block or obstruct existing access routes to existing facilities.
Contractor has undertaken (or will be deemed to have undertaken)an independent
determination of the Site and the access thereto and represents that the Site and the access
thereto are satisfactory and sufficient for Contractor to perform the Work hereunder on the
real estate encompassing such Site..Contractor shall comply with the terms of any
applicable Site Agreements.As of the Effective Date,Contractor represents and warrants
that it has inspected and is fully familiar with the Site and the Land Rights Agreements (as
listed in Exhibit "A",Section 18)and that the Site and access thereto are sufficient for
Contractor to undertake and complete the Work.Contractor shall have the sole
responsibility to obtain all construction permits,transportation permits,and other licenses,
rights of way and other real property rights and easements necessary for Contractor to
complete the Work that are not part of the Site,and any Owner assistance to Contractor in
obtaining,or negotiation of,such rights shall be for Contractor's account and Owner may
deduct such costs and expenses from any payment due to Contractor from Owner hereunder.
Contractor shall provide all necessary information and documents and use all reasonable
efforts to assist Owner in obtaining any other real property rights that Owner at any time is
seeking in connection with the Project.Contractor shall provide direct support,including
but not limited to engineering drawings,expert testimony,supporting documents and
affidavits,etc.,to Owner's legal counsel in connection with any condemnation proceedings
or any other legal action that may arise from the work performed.Contractor shall notify
Owner upon the occurrence,or likely occurrence,of a dispute,conflict,confrontation,or
other similar problem,or potential problem,involving one or more owners or occupiers of
O land so situated as to potentially result in a situation that may have a material adverse effect
upon the performance of the Work.Contractor shall cooperate with Owner in resolving all
such problems.
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Contractor agrees to conduct and coordinate (if necessary)the performance of the Work by
Contractor at the Site with the other construction contractors performing work at the Site.
Contractor shall,prior to proceeding with any Work at the Site,give Notice to Owner of any
issues that Contractor has determined would materially delay or affect Contractor's
performance of the Work.Failure of the Contractor to provide such Notice shall constitute
an acknowledgment and admission that Owner has provided reasonable access to the Site.
4.19 Documents at Site.Upon mobilization to the Site,Contractor shall maintain at the
Contractor's primary field office at or near the Site for Owner one (1)record copy of the
Contractor Deliverables,in good order and marked currently to record changes and
selections made during the Work and,in addition,approved shop drawings,product data,
samples and similar required submittals.These shall be available to Owner at all times.
Upon completion of the Work,Contractor shall promptly furnish Owner with one (l)set of
as-built drawings and complete copies of the shop drawings,product data,samples,
operating manuals,parts books and other submittals required by the Contract.
4.20 Other Assistance.Until Final Completion,Contractor shall:(a)to the extent
reasonably requested by Owner,assist Owner in dealing with Governmental Authorities and
other Persons in any and all matters relating to the Work and/or the Project;and
O (b)cooperate to the extent reasonably necessary to enable Owner to perform its obligations
under Owner's agreements with other Persons.
4.21 Data,Drawings and Manuals.Provide all operating data,preliminary or redline as-
built drawings,manuals and other information necessary to safely and efficiently
commission,test,operate,shut down,and maintain the Project (including those set forth in
Exhibit "A").Contractor shall maintain at the Site (in compliance with the maintenance
requirements in Section 4.l9)for Owner one (1)record copy of the Contractor Deliverables
in good order and marked currently to record changes and selections made during the Work
and,in addition,approved shop drawings,product data,samples and similar required
submittals.These shall be kept on the Site and be available to Owner at all times.
4.22 Training.Contractor shall provide the training as described in Exhibit "A".
4.23 Announcements:Publications.Other than as may be required by Applicable Laws,
Contractor shall not make any public announcements or issue any public publication about
the Project without the prior written consent of the Owner.
4.24 Workers'Compensation.Contractor shall comply with all applicable statutory
requirements of the state and/or federal regulations (e.g.,FELA,USL&H,Jones Act)where
the Work is to be performed ("Workers'Compensation Laws")and shall furnish proof
thereofsatisfactory to Owner prior to commencing Work.
4.25 Documents Requested.Provide such data,reports,certifications and other documents,
including multiple hard copies of each and one electronic copy (unless another quantity is
specified in the Contract),or assistance related to the Work or this Contract as may be
reasonably requested by the Owner;provided,however,that the provision of this
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information shall not in any manner modify Contractor's rights or obligations under any
other provision of this Contract.
4.26 Critical Path Method Schedule.Attached in Exhibit "G"is a summary schedule
(including all of the Critical Path Items and the Owner Milestones)(the "Summary Bid
Schedule").
Within fourteen (14 days)of the Effective Date,Contractor shall provide Owner with a
detailed preliminary schedule for the first ninety (90)days after the Effective Date ("90 Day
Schedule").The preliminary schedule should be generally consistent with the Summary Bid
Schedule and must satisfy the requirements of Exhibit G.
Within Ninety (90)days of the Effective Date the Contractor must provide a complete
detailed critical path method schedule (the "Project Baseline Schedule")to be submitted to
the Owner,for review.The Project Baseline Schedule must be consistent with the Summary
Bid Schedule and the 90 Day Schedule,and satisfy the requirements set forth in Exhibit
"G".Each of the Summary Bid Schedule,90 Day Schedule and Project Baseline Schedule
shall be subject to Owner's approval,not to be unreasonably withheld or delayed.The latest
version of the critical path method schedule approved by Owner shall be deemed to be the
Critical Path Method Schedule required under the Contract.
Such complete fully detailed Critical Path Method Schedule shall be the baseline schedule
against which all updates shall be compared against and neither the Critical Path Items,the
Contractor Schedule Milestones,nor the Owner Milestones may be revised except in
accordance with Article 17.Contractor shall advise Owner of any delays to any Critical
Path Items of more than fifteen (15)days and promptly provide Owner with the reasons for
such delay.In connection therewith,Contractor shall employ a project management system
able to provide schedule monitoring and analysis which shall include a comparison of the
original Critical Path Method Schedule with the actual progress for each time period with all
variances noted.If any of the Critical Path Items,Contractor Schedule Milestones,Owner
Milestones,or Project Guaranteed Dates are adjusted pursuant to Article 17,the system
shall also provide a comparison of the revised Critical Path Method Schedule with actual
progress.Schedule analysis shall include a determination of the impact of such variance,if
material,on the Contractor's ability to meet the Project Guaranteed Dates and Contractor
Schedule Milestones and,if applicable,any action necessaryto correct the variance.
Utilizing the critical path method,Contractor shall continually be aware of factors that are
delaying or that could delay the achievement of a Contractor Schedule Milestone or
Substantial Completion and shall take all commercially reasonable and prudent remedial
actions within its control to eliminate or minimize schedule delays including overtime for
the employees of Contractor and Subcontractors and the assignment of additional personnel
and/or other resources.During construction,the Contractor will update its Critical Path
O Method Schedule to reflect the current status of the Work.At a minimum,the updates will
be performed and provided to Owner on a monthly basis as part of the Project Progress
Report.
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4.27 Project Progress Report.Contractor shall prepare a monthly Project Progress Report
following the format of Exhibit "A",Section 19 and submit it to Owner within ten (10)days
after the end of each reporting period and as part of the Contractor's Invoice submitted
pursuant to Section 7.1.In addition,Contractor shall keep,and furnish to Owner at Owner's
request,such information as Owner may reasonably require to determine that the Work is
progressing according to the Critical Path Method Schedule and for the purpose of
confirming that Progress Payments are due hereunder,including,but not limited to monthly
forecasting and accruals processes acceptable to Owner.Contractor also shall keep daily
logs at the Site and shall provide to Owner copies of weekly reports of actual construction
progress as compared with scheduled progress,which such weekly reports shall include at a
minimum the information required for such weekly reports as described in Exhibit "A",
Section 19 hereto.
4.28 Accident Reports.Provide Owner with written accident reports for accidents that
occur at the Site,prepared in accordance with the Contractor Safety Program and the
requirements of this Contract.Provide Owner with copies of all written communications
with Governmental Authorities and insurance companies (including any notices)with
respect to accidents that occur at the Site or the Contractor Yard Site or in connection with
the performance of the Work,and thereafter provide such written reports relating thereto as
Owner may reasonably request.
4.29 Punchlist.On a weekly basis after the Substantial Completion Date,revise and update
the Punchlist and schedule and budget therefor as initially prepared in accordance with
Section 15.1(e).After the Substantial Completion Date,Contractor shall complete each
item of Work set forth on the Punchlist within the scheduled time period for such item as
agreedto pursuant to Section 15.1(e).
4.30 Measurements.Exclusively use the U.S.Customary System units of measurement in
all specifications,drawings,and other documents.
4.31 Meetings.Schedule and conduct periodic meetings with Owner in accordance with the
requirements of Exhibit "A"before mobilization,at Contractor's office or such other
location as the Parties may agree,and after mobilization,at the Site,or such other location
as the Parties may agree,for the purpose of reviewing the progress of the Work and
adherenceto the Critical Path Method Schedule.The frequency of such meetings shall be in
accordance with the frequency described in the Exhibits or as established and modified,
from time to time,by mutual agreement of Owner and Contractor;provided,however,
Owner shall be entitled to require that meetings occur as frequently as weekly.If Owner
requests that Contractor cause a representative of any Subcontractor to attend any such
meeting,then Contractor shall cause a representative of such Subcontractor to attend such
meeting.
4.32 Parts.Contractor shall for its own account,provide all parts needed for construction,
O commissioning and testing of the Project.Contractor shall provide the spare parts identified
in Exhibit "A",Section 21 ("Spare Parts")to be provided by Contractor and the cost of such
Spare Parts is included in the Contract Price.Contractor shall also provide the pricing for
the parts in accordance with the requirements set out in Exhibit "A",Section 21.In
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addition,Contractor shall use reasonable efforts prior to ordering an item of Equipment to
deliver to Owner reasonably in advance of placing such order a schedule describing any
additional spare parts relating to such item of Equipment that the Contractor or
Subcontractor reasonably suggests to be purchased with the Equipment along with the price
for such part(s).
Contractor agrees that any part (whether provided by Contractor or Owner)that is
incorporated into the Project by Contractor shall be covered under the Project Warranties
and the other terms of the Contract,notwithstanding that such part may not have been
provided or procured by Contractor.
4.33 Hazardous Materials.
(a)Contractor's Obligations.Contractor shall comply with the obligations in Exhibit
"A"with respect to Hazardous Materials.
(b)Contractor's Responsibility.Contractor shall be responsible for all Losses arising
from Hazardous Materials being delivered to,brought to or used at the Site or
O Contractor Yard Site by Contractor,Subcontractor or anyone employed by them,
except those for which Owner is responsible pursuant to Section 3.6,including the
costs of:(i)the permitting,storage,transportation,processing or disposal of
Hazardous Materials,(ii)the remediation of any environmental condition caused by
such Hazardous Materials,and (iii)any fines or penalties imposed by any
Governmental Authority.Without limiting the generality of foregoing,Contractor
shall be responsible for any Losses relating to the disposal,discharge,disturbance or
release of Hazardous Materials at or in the vicinity of the Site or Contractor Yard Site
by Contractor (or otherwise present at or in the vicinity of the Site)as a result of
Contractor's or Subcontractor's negligence or failure to comply with the terms of this
Contract.
(c)Procedures Upon Discovery.If Contractor discovers,encounters or is notified of the
existence of any Hazardous Materials at the Site (but excluding any Hazardous
Materials brought to the Site by Contractor or a Subcontractor and being used by
Contractor or a Subcontractor in compliance with Applicable Laws or any Hazardous
Materials that are being stored at the Site by Owner in compliance with Applicable
Laws),then:
(i)Contractor shall as promptly as reasonably possible cease all Work in any
area affected thereby;
(ii)Contractor shall promptly give Notice to Owner thereof and cordon off or
otherwise barricade the area containing such Hazardous Materials unless
O instructed otherwise by Owner;and
(iii)Contractor shall promptly provide Owner with such written reports
relating thereto as Owner may reasonably request.
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(d)Contractor's Right to a Change in Work.Contractor shall not be entitled to any
extension of time,additional compensation or a Change in Work hereunder for any
delay or costs incurred by Contractor as a result of the existence of Hazardous
Materials for which Contractor is responsible pursuant to this Section 4.33.However,
should Contractor encounter Hazardous Materials at the Site which are not
Contractor's responsibility pursuant this Section 4.33,then Contractor shall be
entitled to a Change in Work in accordance with Article 17.
4.34 Design of Project.Contractor shall further design and construct the Project so that it
will allow operation of the Project and each of its component parts over the full range of
operating and ambient conditions specified in Exhibit "A"while meeting Applicable
Laws,Applicable Permits and Industry Standards.
All engineering work of the Contractor (or any Subcontractor)requiring certification
shall be certified and all Drawings and Specifications requiring sealing shall be sealed in
each case by a professional engineer licensed and properly qualified to perform such
engineering services in the state in which such portion of the Work is performed and in
all appropriate jurisdictions and such engineers and their qualifications shall be subject to
Owner's review hereunder.Upon Owner's request,Contractor shall provide Owner with
O the resumes and other information regarding such Persons.Contractor shall use,and
shall cause its Subcontractor to use,staff that are certified,professional engineers in the
states in which the Work is to be performed in relation to all mechanical,electrical and
civil engineering Work performed in the respective states.
4.35 Audit.Contractor shall keep such full and detailed records,books and other
documentation in accordance with Industry Standards and with generally accepted
accounting principles as may be necessary for substantiation of all Contractor claims for
additional compensation or Changes in Work.Owner and its respective designees,shall
be afforded access to,be allowed to inspect and audit,and be allowed to make copies of
such books,records and documentation.Such books,records and documentation will be
available in the United States at Contractor's regular place of business during normal
working hours.Contractor shall preserve all such books,records and documentation for a
period of seven (7)years after the Final Payment,or longer where required by Applicable
Laws.These requirements shall also apply to all Subcontractors and materials suppliers.
The audit rights provided herein shall apply to the full extent necessary to verify any
cost-based components of Contractor's pricing,as well as any portion of the guaranteed
fixed pricing that is subject to commodity pricing adjustments pursuant to Section 6.1.1.
4.36 Operation of Existing Facilities.Contractor specifically acknowledges and agrees
that the Work must be performed by the Contractor within the operating parameters
O relating to the Transmission Grid as described in Exhibit "A".In addition,Contractor
agrees that it shall plan and perform the Work in such a manner to prevent disruption to
the operations of any generating facility and the Transmission Grid,unless otherwise
expressly approved in writing by Owner.In the event of an emergency on the
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Transmission Grid or during any period for which Contractor has rendered a portion of
the Transmission Grid inoperable or impaired,within 24 hours'notice from Owner,
Contractor shall remove such condition in order to render the Transmission Grid fully
operable.
4.37 Delivery of Documents.Owner and Contractor agree that the timely submission
to Owner by Contractor of certain engineering Contractor Deliverables is an important
aspect of this Contract.In the event Contractor's failure to timely provide Contractor
Deliverables in accordance with the Deliverables Schedule (as established in accordance
with Section 12.4)results in Owner's failure to obtain an Owner Acquired Permit or
otherwise fulfill its obligations to Contractor under this Contract,then Contractor shall
not be entitled to a Change in Work as a result of such delay.
4.38 Site Conditions.Neither Owner nor any of its agents or representatives have
made nor shall they make any express or implied warranty to Contractor as to the
accuracy and completeness of any test,inspection,report or other information concerning
the condition of the Site and Owner shall not be liable to Contractor for any such
information provided by Owner or its agents or representatives.
O Contractor specifically represents and warrants that it has carefully examined the
Agreement and understands the Agreement and Contract Documents,including all
Drawings,Scope of Work,Plans and Specifications,and special conditions,if any.
Contractor further represents that it has inspected the sites and routes of the Work and is
thoroughly acquainted with all conditions that may be encountered in performing the
Work.Contractor has considered all matters and factors that could affect the Work,or the
cost thereof,or the schedule to complete the Work.No claim for either additional
compensation or extension of time alleging changed,concealed or unknown conditions
will be allowed or recognized by Company.In relation to the Work and the project site,
Contractor has taken into account all facets of the job including the required access.
Contractor has investigated (or will be deemed to have investigated)the Site and each
other location where any portion of the Work shall be performed and surrounding
locations,including both surface and subsurface conditions and has satisfied itself with
respect to the nature and location of the Work and the general and local conditions in and
around the Site with respect to the environment,transportation,access,waste disposal,
handling and storage of materials,availability and quality of electric power,availability
and quality of water,availability and quality of roads,climatic conditions and seasons,
physical conditions at the Site and the surrounding area as a whole,topography and
ground surface conditions,sound attenuation conditions,subsurface geology and
conditions,nature and quantity of surface and subsurface materials to be encountered
(excluding Hazardous Materials)but including equipment and facilities,and requirements
O of all Governmental Authorities with regard to flora,fauna and cultural conditions
needed before and during performance of all Contractor's obligations under this Contract
(the foregoing,collectively,the "Site Conditions").
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In the event that Contractor performs any geotechnical studies,Contractor shall promptly
provide Owner with a copy of such studies and/or reports.
Contractor specifically acknowledges and accepts the foregoing Site Conditions and
agrees that no Project Guaranteed Date shall be extended,the Contract Price shall not be
modified,and Contractor shall not be entitled to request or be granted any Change in
Work,as a result of any such Site Conditions.Further,should the Site Conditions be at
variance with the condition of the Site indicated by any reports or other information
furnished to Contractor by Owner or any of its representatives (including,but not limited
to any unknown physical conditions below the surface of the ground or water differing in
any way from those ordinarily encountered and generally recognized as inherent in work
of the character provided for in this Contract)neither the Contract Price nor any other
Project Guaranteed Dates shall be adjusted,and Contractor shall complete the Work for
the Contract Price.
4.39 Non-Conforming Work.If Contractor is notified of or discovers any Defect,
Contractor shall,at Contractor's sole cost and expense,correct such Defect and promptly
provide Notice to Owner that such corrective measures have been completed.IfOContractordiscoversadefectinOwner's Engineer's design or engineering,Contractor
shall immediately provide Notice to Owner.Any disagreements about the root cause of
any Defect shall be resolved in accordance with the provisions of Article 36.
4.40 [Joint and Several Liability.][The Contractor means each joint venture partner
which shall undertake the duties and obligations of the Contractor under this Contract.
Each joint venture partner has the duty and obligation,individually,to fully perform all
of the duties and obligations of Contractor under this Contract.Owner may enforce the
terms of this Contract against one or more joint venture partners,individually or
collectively,upon breach of Contractor's performance hereunder.Even though each joint
venture partner has assumed the duties and obligations of Contractor under this Contract
on a joint and several basis,the Contractor is referred to herein as if singular in number.
Without limiting the generality of the foregoing,the Owner shall be entitled to
conclusively rely on any Notice or other correspondence received,or performance
tendered by a Joint Venture Partner (relating to or in connection with the Project or this
Contract)or the Contractor without any duty on the part of Owner to make an inquiry
into the authority of the Contractor or such Joint Venture Partner to give such Notice or
other correspondence or tender such performance,and any Notice or correspondence
delivered or performance taken by one of the Joint Venture Partners (relating to or in
connection with the Project or this Contract)or the Contractor shall validly and legally
bind the others.][If applicable.]
5.WARRANTIES AND REPRESENTATIONS
5.1 Of Contractor.Contractor represents and warrants to Owner that:
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5.1.1 Organization,Standing and Qualification.Contractor is a ,duly
organized,validly existing and in good standing under the laws of the State of
,and has,or will have by the date it commences the applicable Work,full
power and authority to engage in the business it presently conducts and
contemplates conducting in accordance with all Applicable Laws,and is or will
be duly licensed or qualified and in good standing under the laws of all states in
which Work is to be performed and in each other jurisdiction wherein the nature
of the business transacted by it makes such licensing or qualification necessary
and where the failure to be licensed or qualified would have a material adverse
effect on its ability to perform its obligations hereunder.Contractor shall furnish
Owner with a certified copy of its permit to transact business in each state and
other jurisdiction wherein the nature of the business transacted by Contractor
makes such licensing or qualification necessary prior to commencing Work under
the Contract.Owner may,at its option,withhold from any payment hereunder
and remit to the relevant Governmental Authority such sums as are required by
Applicable Laws and has provided Owner with a copy of such certificate.In
addition,the Owner may,as required by Applicable Laws,withhold the Final
Payment of the Contract as a guarantee that sales and use Tax will be paid in the
event that Owner has been provided notice by a Governmental Authoritypursuant
to Applicable Laws to withhold funds.Contractor shall make such returns and
O pay such Tax on account of payments received under this Contract as Applicable
Laws may require,and shall hold Owner harmless on account of its failure to
withhold any amount required by Applicable Laws from any payment made
hereunder or on account of Contractor's failure to pay any such Tax to a
Governmental Authority.
5.1.2 Enforceable Contract.This Contract has been duly authorized,executed and
delivered by Contractor and constitutes the legal,valid and binding obligation of
Contractor,enforceable against Contractor in accordance with its terms.
5.1.3 Due Authorization.The execution,delivery,and performance by Contractor
of this Contract will not violate or conflict with:(a)any Applicable Laws;(b)any
covenant,agreement,or understanding to which it is a party or by which it or any
of its properties or assets is bound or affected;or (c)its organizational documents;
and will not subject the Project or any component part thereof or the Site or any
portion thereof to any lien other than as contemplated or permitted by this
Contract.
5.1.4 Government Approvals.No authorization,approval,exemption,or consent
of or by any Governmental Authority or other Person is required in connection
with the authorization,execution,delivery,and performance of this Contract by
Contractor.The Contractor Acquired Permits either have been obtained by
Contractor and are in full force and effect on the Effective Date or will be
O obtained by Contractor and will be in full force and effect on or prior to the date
on which they are required,under Applicable Laws,to be in full force and effect,
so as to permit Contractor to commence and prosecute the Work to completion in
accordance with the Critical Path Method Schedule.
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5.1.5 No Suits,Proceedings.There are no actions,suits,proceedings,or
investigations pending or,to Contractor's knowledge,threatened against it at law
or in equity before any court (United States or otherwise)or before any
Governmental Authority (whether or not covered by insurance)that individually
or in the aggregate could result in any materially adverse effect on the business,
properties,or assets or the condition,financial or otherwise,of Contractor or in
any impairment of its ability to perform its obligations under this Contract.
Contractor has no knowledge of any violation or default with respect to any order,
writ,injunction,or decree of any court or any Governmental Authoritythat may
result in any such materially adverse effect or such impairment.
5.1.6 Patents.Other than those patents,trademarks,service marks,tradenames,
copyrights,licenses,franchises and permits included in Owner Acquired Permits,
Contractor owns or has the right to use all patents,trademarks,service marks,
tradenames,copyrights,licenses,franchises,and permits necessary to perform the
Work without conflict with the rights of others and to enable Owner to operate the
Project without infringement thereof.
5.1.7 Business Ethics.Contractor,its employees,officers,agents,representativesOandSubcontractorsshallatalltimesmaintainthehighestethicalstandardsand
avoid conflicts of interest in the performance of Contractor's obligations under
this Contract.In conjunction with its performance of the Work,Contractor and its
employees,officers,agents and representatives shall comply with,and cause its
Subcontractors and their respective employees,officers,agents and
representatives to comply with,all applicable laws,statutes,regulations and other
requirements prohibiting bribery,corruption,kick-backs or similar unethical
practices including,without limitation,the United States Foreign Corrupt
Practices Act,the United Kingdom Bribery Act 2010,or any similar laws,
statutes,regulations and other requirements prohibiting bribery,corruption,kick-
backs or similar unethical practices and similar Applicable Laws.Without
limiting the generality of the foregoing,Contractor specifically represents and
warrants that neither Contractor nor any Subcontractor employees,officers,
representatives or other agents of Contractor have made or will make any
payment,or have given or will give anything of value,in either case to any
government official (including any officer or employee of any governmental
authority)to influence his,her,or its decision or to gain any other advantage for
Owner or Contractor in connection with the Work to be performed hereunder.
Contractor shall maintain and cause to be maintained effective accounting
procedures and internal controls necessary to record all expenditures in
connection with this Contract and to verify Contractor's compliance with this
Article.Owner shall be permitted to audit such records as reasonably necessary
to confirm Contractor's compliance with this Article.Contractor shall
O immediately provide notice to Owner of any facts,circumstances or allegations
that constitute or might constitute a breach of this Article and shall cooperate with
Owner's subsequent investigation of such matters.Contractor shall indemnify
and hold Owner harmless from all fmes,penalties,expenses or other losses
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sustained by Owner as a result of Contractor's breach of this provision.The
Parties specifically acknowledge that Contractor's failure to comply with the
requirements of this Article shall constitute a condition of default under this
Contract.
5.1.8 Owner-Provided Information.Owner or its agents may provide or may have
provided Contractor or Subcontractor with copies of certain studies,reports or
other information (including oral statements)and Contractor acknowledges that
all such documents or information have been or will be provided as background
information or as an accommodation to Contractor.Contractor further
acknowledges that neither Owner nor any of its agents makes any representations
or warranties with respect to the accuracy of such documents or the information
(including oral statements)or opinions therein contained or expressed.Contractor
further represents and warrants that it is not relying on Owner or Owner's agents
for any information,data,inferences,conclusions,or other information with
respect to Site Conditions,including the surface and sub-surface conditions of the
Site and the surrounding areas.
O 5.1.9 Financial Condition.Contractor is financially solvent,able to pay its debts
as they mature,and possessed of sufficient working capital to complete its
obligations under this Contract.Contractor is able to perform the Pre-
Construction Services,furnish the Equipment,labor,and design services needed
for the Project,is experienced in and competent to perform the Work,both
construction and design,contemplated by this Contract,and is qualified to do the
Work.
5.1.10 [Joint Venture.][The Contractor is a joint venture and [each joint venture
partner]have the power and authority to enter into this Contract.Each [joint
venture partner]individually,has the duty and obligation to fully perform all of
the duties and obligations of Contractor under this Contract.Any Notice or
correspondence delivered or performance taken by one of either [joint venture
partner]or the Contractor shall validly and legally bind the others on a joint and
several basis.][If applicable.]
5.l.Of Owner.Owner covenants,represents,and warrants to Contractor that:
5.2.1 Organization,Standing and Qualification.Owner is a limited liability
company duly organized,validly existing,and in good standing under the laws of
the State of Delaware,has full power to engage in the business Owner presently
conducts and contemplates conducting,and is and will be duly licensed or
qualified and in good standing in each jurisdiction wherein the nature of the
business transacted by it makes such licensing or qualification necessary and
where the failure to be licensed or qualified would have a material adverse effect
on its ability to perform its obligations hereunder.
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5.2.2 Enforceable Contract.This Contract has been duly authorized,executed
and delivered by Owner and constitutes the legal,valid,and binding obligation of
Owner,enforceable against Owner in accordance with its terms.
5.2.3 Due Authorization.The execution,delivery,and performance by Owner
of this Contract will not conflict with:(a)any Applicable Laws;(b)any
covenant,agreement,or understanding to which it is a party or by which it or any
of its properties or assets is bound or affected;or (c)its certificate of
incorporationor by-laws.
5.2.4 Government Approvals.No authorization,approval,exemption,or
consent of or by any Governmental Authority or other Person (other than the
Applicable Permits)is required in connection with the execution,delivery,and
performance of this Contract by Owner and if not obtained will be obtained by
Owner prior to the date on which it is required under Applicable Laws to be in
full force and effect.The Owner Acquired Permits either have been obtained by
Owner and are in full force and effect on the Effective Date or will be obtained by
Owner and will be in full force and effect on or prior to the date on which they are
required,under Applicable Laws,to be in full force and effect;and in the event
O such Owner Acquired Permit is not obtained by the applicable Owner Milestone,
Contractor's sole remedy for a breach of the representations in this Section 5.2.4
shall be a Change in Work in accordance with Article 17.
5.2.5 No Suits,Proceedings.There are no material actions,suits,proceedings,or
investigations pending or,to its knowledge,threatened against it at law or in
equity before any court (United States or otherwise)or before any Governmental
Authority (whether or not covered by insurance)that individually or in the
aggregate could result in any materially adverse effect on the business,properties,
or assets or the condition,financial or otherwise,of Owner or in any impairment
of its ability to perform its obligations under this Contract.Owner has no
knowledge of any violation or default with respect to any order,writ,injunction,
or any decree of any court or any Governmental Authoritythat may result in any
such materially adverse effect or such impairment.
5.2.6 Business Practices.Owner will not,and Owner will direct its employees,
agents,and subcontractors,and their employees and agents to not,make any
payment or give anything of value to any government official (including any
officer or employee of any Government Authority)to influence his,her,or its
decision or to gain any other advantage for Owner or Contractor in connection
with the Work to be performed hereunder.Neither Owner nor any of its
employees or agents shall take any action that violates the United States Foreign
Corrupt Practices Act or any similar Applicable Laws.Owner shall immediately
O give Notice to Contractor of any violation (or of the direction described in the first
sentence hereof)and shall indemnify and hold Contractor harmless for all Losses
arising out of such violation.
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6.COST OF WORK
6.1 Contract Price.As full compensation for the Work,Owner shall pay to Contractor
the fixed price amount of U.S $.(the "Contract Price").The
Contract Price shall be modified only by (i)a Change in Work approved in accordance
with Article 17,or (ii)per Section 6.l(a).
The Contract Price shall be paid in accordance with Article 7.
6.2 All Items of Work Included.The Contract Price includes payment for:(a)all costs
of Equipment,temporary equipment,materials,labor,transportation,engineering,design
(if applicable)and other services relating to Contractor's performance of its obligations
under this Contract and the Work (including any intellectual property rights licensed
under this Contract,expressly or by implication)provided by Contractor or such
Subcontractors;(b)any duties,levies,imposts,fees or charges of any kind (whether in
the United States or elsewhere and including any of the foregoing related to the
importation of any items into the United States)arising out of Contractor's or any such
Subcontractor's performance of the Work;and (c)any duties,levies,imposts,fees,
royalties or charges of any kind (whether in the United States or elsewhere and including
any of the foregoing related to the importation of any items into the United States)
imposed on Contractor or its Subcontractors with respect to any Equipment,materials,
labor,or services provided under this Contract.
6.3 Taxes;Tax Administration and Payment.
(a)Responsibility for Taxes.The Contract Price includes payment for all taxes
of any nature whatsoever including all:(i)United States federal,state,regional,
and local taxes,national and foreign taxes,goods and services taxes,personal
property taxes,sales and use taxes (including sales and use tax on the purchase,
sale or use of all materials,supplies,Equipment and machinery);(ii)property
taxes on all materials,supplies,equipment and machinery not intended to be
transferred to Owner hereunder;(iii)occupational,excise,unemployment,value-
added,gross receipts and income taxes;and (iv)any and all other taxes,effective
or enacted as of the Effective Date or thereafter,each as imposed on Contractor or
its Subcontractors or the Work (collectively referred to as "Taxes");provided,
however,the Contract Price shall not include any real property taxes on the Site
or the Project,which shall be borne by Owner.With the exception of real
property taxes not included in the Contract Price as described above in this
paragraph,the Contract Price shall not be increased with respect to any of the
foregoing Taxes or with respect to any withholdings in respect of any of the
foregoing Taxes that Owner may be required to make.Calculation of Tax within
the Contract Price is the sole responsibility of the Contractor and is provided for
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informational purposes only.Any errors or omissions in calculating Tax shall be
at the Contractor's risk.
(b)Tax Administration and Payment.Contractor shall,in accordance with
Applicable Laws,timely administer and timely pay all Taxes that are included in
the Contract Price and timely furnish to the appropriate taxing authorities all
required information and reports in connection with such Taxes.Contractor shall
provide to Owner information to confirm the correct Taxes have been paid on the
Work by the Contractor and such further Tax information reasonably requested by
Owner.
O
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7.TERMS OF PAYMENT
Payments to Contractor shall be made as follows:
7.1.Contractor's Invoices.
(a)Following the issuance of a Limited or Full Notice to Proceed,on or about the
tenth (10th)day of each month,Contractor shall submit a Contractor's Invoice in
the form of Exhibit "F"to Owner for the Progress Payment Amount in
accordance with the requirements and provisions set forth in Exhibit "D".Owner
shall pay undisputed amounts so invoiced within thirty (30)days.
In all cases,Contractor specifically agrees that it shall not request in any Contractor's
Invoice the payment of any sum attributable to Work which has been rejected by
Owner or Contractor or which otherwise constitutes or relates to a Subcontractor's
application for payment,billings or invoices which Contractor disputes or for any
other reason does not intend to pay in accordance with the terms of Contractor's
O agreements with its Subcontractors.Subject to the provisions of this Article 7,Owner
shall pay Contractor each Progress Payment described on the Progress Payment
Schedule upon Contractor's completion of the corresponding discrete portion of
Work.
7.2.Certification by Contractor.Each Contractor's Invoice:
(a)Shall provide documentary evidence in the form of a written progress report,in
accordance with Section 4.27 to describe:(i)the completion of the Work to
maintain the Interim Progress Milestones;(ii)the related Progress Payment
Schedule and Amounts set forth on the Progress Payment Schedule that are then
due as of the end of the immediately preceding month;and (iii)any other amounts
then payable by Owner to Contractor under Article 17 or any other provision
hereof and,without limiting Owner's right to dispute any amounts requested for
payment;
(b)Shall include Contractor's Partial Release and Waiver of Liens and Claims;and;
(c)Shall include the Project Progress Report and Critical Path Method Schedule in
accordance with Section 4.26 and Section 4.27,except to the extent they have
previously been provided for the applicable month;
O It being understood and agreed by Contractor that any Contractor's Invoice not in
compliance with the Project Payment Schedule or that has been demonstrated to not
be in compliance with the Interim Progress Milestones described in Exhibit "G",and
in Exhibit "G"Attachment G.1.l shall not,to the extent of such deficiency,constitute
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a valid request for payment.Each Progress Payment Amount shall be due and
payable only to the extent it is supported by documentary evidence of compliance
with the Interim Progress Milestones set forth in Exhibit "G"Attachment G.1.1,it
being acknowledged and understood that no Progress Payment shall be made for any
partially or improperly completed individual items of Work or for Work that remains
subject to Owner's review and inspection rights in accordance with Section 12.5.
Notwithstandingthe foregoing,in no event shall the cumulative amount actually paid
with respect to any period of time exceed the maximum cumulative amount payable
for such period in accordance with the Progress Payment Schedule.
7.3 Subcontractor Statements.Accompanying each Contractor's Invoice,Contractor
shall submit a Partial Release and Waiver of Liens and Claims from each Major
Subcontractor whose Work is covered under such Contractor's Invoice.
7.4 Owner Review;Payments.Without limiting Owner's rights of review under Article
10 _and Article 12,within fourteen (14)days after receipt by Owner of a Contractor's
Invoice and all accompanying documentation required by Section 7.2,Owner shall:
(a)determine whether the Interim Progress Milestones described in Exhibit G
Attachment G.l.1 remain valid and not subject to the provisions of Section 8.3;O (b)determine whether the Work performed conforms with the requirements of this
Contract;(c)determine whether the Contractor's Invoice has been properly submitted;
and (d)determine and give Notice to Contractor concerning any invoiced amount that is
in dispute and the basis for such dispute.Owner will pay Contractor,within thirty (30)
days after receipt by Owner of Contractor's Invoice,all Progress Payment Amounts and
other amounts then payable and not in dispute.Failure by Owner to pay any amount in
dispute and identified pursuant to clause (d)above until resolution of such dispute
pursuant to Section 7.7 shall not alleviate,diminish,or modify in any respect
Contractor's obligations to perform the Work in accordance with this Contract.
Contractor shall promptly pay each Subcontractor directly contracting with Contractor
the amount to which said Subcontractor is entitled under its agreement with Contractor
with respect to the Work covered by such payment by Owner in accordance with the
terms of its subcontract with such Subcontractor.Contractor shall,by an appropriate
agreement with each Major Subcontractor,contractually require each such Subcontractor
to make payments to its subcontractors in a similar manner.
7.5 Retainage.Owner shall retain and withhold payment of ten (10%)of all payments
made to Contractor pursuant to Section 7.4 (the "Retainage")other than the Final
Payment.Such amount shall be held by Owner and any interest thereon shall accrue for
the account of Owner and not Contractor.Alternatively and in lieu of the above,no
Retainage will be withheld by Owner provided Contractor posts an irrevocable
transferable letter of credit issued for the benefit of the Owner by a Qualified Bank (the
"Retainage LOC")not less than an amount equal to the Retainage (had it been withheld
by Owner in accordance with the first paragraph of this Section 7.5).
7.6 Final Payment.Upon the delivery of Owner's Certificate of Final Completion in
accordance with Section 15.5(1),Contractor shall submit a final Contractor's Invoice (the
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"Final Contractor's Invoice")which shall set forth all amounts due to Contractor that
remain unpaid (including amounts relating to the Punchlist Items),and upon approval
thereof by Owner,Owner shall pay to Contractor the amount due under such Final
Contractor's Invoice ("Final Payment").Subject to achievement of Final Completion
pursuant to this Contract,Final Payment shall include release of the Retainage or return
and cancellation of the Retaining LOC (as applicable).Owner shall have no obligation to
make Final Payment until Contractor shall have delivered the followingitems to Owner:
(a)With respect to each Major Subcontractor the Final Release and Waiver of Liens
and;and
(b)With respect to Contractor,
(i)A certification to the effect that:
(x)Contractor has been paid all amounts owing or that may become owing
to Contractor with respect to the Project and the performance of the Work
except for amounts requested in the Final Contractor's Invoice,and
(y)Contractor has paid all amounts that Contractor will be required to pay
in connection with the performance of the Work,including all amounts to
be paid to any Subcontractor with respect to the Project and the
performance of the Work,except for amounts that in the aggregate shall be
less than the Final Payment;
(ii)The Final Releaseand Waiver of Liens and Claims;and
(iii)The Warranty LOC.
7.7 Disputes.Contractor's acceptance of any payment shall not be deemed to constitute a
waiver of amounts that are then in dispute.Contractor and Owner shall use their
reasonable efforts to resolve all disputed amounts as expeditiously as possible in
accordance with the provisions of Article 36.
7.8 Method of Payment.All payments to be made to Contractor under this Contract shall
be paid in Dollars and shall be paid by electronic funds transfer in immediately available
funds on the date due or,if such date is not a Business Day,on the immediately
succeeding Business Day to the account as may be designated by Contractor from time to
time by Notice to Owner in accordance with Article 33.
7.9 Holdbacks.Any provision hereof to the contrary notwithstanding,upon the
occurrence and continuance of any of the following events,Owner,upon Notice to
O Contractor,may (but shall have no obligation to)withhold or retain such portion of any
payment due to Contractor under this Contract to the extent reasonably necessary to
ensure the performance of the Work,to cover Owner's reasonable costs to cover such
event or otherwise protect fully Owner's rights hereunder:
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(a)A Contractor Event of Default shall have occurred hereunder as defined in
Section 20.1;
(b)Any part of such payment shall be attributable to Work which shall contain a
Defect or shall not have been performed in accordance with the terms of this
Contract;
(c)Contractor shall have improperly failed to make prompt payments to its
Subcontractors pursuant to the terms of such subcontract for material or labor
used in the Work for which Owner has paid Contractor;
(d)Owner in good faith shall have determined based upon the Critical Path Method
Schedule that Contractor cannot with prompt and reasonable acceleration of the
Work achieve the Project Guaranteed Dates;provided,however,that the amount
withheld or retained on account of this Section 7.9(d)shall not exceed the amount
of the Delay Liquidated Damages which would be payable under Article 16 on
account of the then estimated delay in achieving the Project Guaranteed Dates;
(e)Contractor shall have failed to deliver a Schedule Recovery Plan reasonably
O acceptable to Owner as set forth in Section 8.3,or Contractor shall have failed to
cause the prosecution of the Work to conform to the Schedule Recovery Plan
approved by Owner;or
(f)Contractor shall have failed to deliver any Contractor Deliverable (prepared by
Contractor in good faith)to Owner on or before the date set forth on the
Deliverables Schedule for the delivery of such Contractor Deliverable.
No payment made hereunder shall be construed to be acceptance or approval of that
part of the Work to which such payment relates or to relieve Contractor of any of its
obligations hereunder.Should any dispute arise with respect to Owner's exercise of
its rights under this Section 7.9,such dispute shall be subject to resolution in
accordance with the expedited payment dispute procedures provided in Article 36.
Notwithstanding the provisions of Section 20.4 and Article 36,Contractor shall not
have any rights of termination or suspension under Section 20.4 as a result of
Owner's exercise or attempted exercise of its rights under this Section 7.9.
7.10 Application of Monies.Contractor shall use the sums paid to it pursuant to this
Article 7 for the purpose of performing the Work and designing,furnishing,equipping,
testing and commissioning the Project in accordance with this Contract.No provision
hereof shall be construed,however,to require Owner to see to the proper disposition or
application of the monies so paid to Contractor.
O 7.11 Releaseof Liability.Acceptance by Contractor ofthe Final Payment shall constitute
a release by Contractor of Owner,its Affiliates and every officer and agent thereof from
all liens (whether statutory or otherwise and including mechanics'or suppliers'liens),
claims and liability with respect to the payment of the Contract Price or any event or
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circumstance that would entitle Contractor to request a Change in Work in accordance
with Article 17 in respect of any Work performed or furnished in connection with this
Contract,or for any act or omission of Owner or of any Person relating to or affecting
Owner's payment obligationsunder this Contract,except for unresolved claims for which
Contractor has previously delivered a dispute Notice to Owner and claims which are
based on facts and/or circumstances that arise only after Final Completion;and further
provided that such acceptance shall not constitute a release of Contractor's right to
enforce any provision of this Contract that survives termination of this Contract in
accordance with Section 37.3.No payment by Owner shall be deemed a waiver by
Owner of any obligation of Contractor under this Contract.
7.12 All Payments in Dollars.All amounts in this Contract are expressed in,and all
payments required hereunder shall be paid in United States Dollars.
8.COMMENCEMENT AND PROSECUTION OF THE WORK
8.1.Limited Notices.
(a)Limited Notice to Proceed.Owner may issue to the Contractor a Limited
Notice to Proceed to perform specified Work as required within Exhibit "A"
and shall pay Contractor in accordance with the terms of Exhibit "D"that are
applicable
Prior to the Full Notice to Proceed Date,Contractor shall only perform the
activities set forth in a Limited Notice to Proceed.Contractor shall not be
entitled to any payment for activities,services,products or other costs or
expenses incurred outside of the scope set forth in the Limited Notice to
Proceed.Amendments to a Limited Notice to Proceed shall be made in
accordance with the provisions of Article 17,mutatis mutandis.Owner may
terminate a Limited Notice to Proceed at any time,provided that any such
termination shall not terminate this Contract nor shall it affect the other rights,
obligationsor agreements of the Parties set forth in this Contract.Owner shall
pay Contractor for the value of agreed services completed (or if not
completed,the reasonable approximation of the portion that has been
completed)as of the date of termination of a Limited Notice to Proceed.
8.2 Full Notice to Proceed.Owner shall provide Contractor with Notice that Contractor is
directed to commence Work under this Agreement ("Full Notice to Proceed")as follows:
(b)(a)Owner shall inform Contractor of the date Owner reasonably anticipates to
issue Full Notice to Proceed,and the date on which Owner provides
Contractor with Full Notice to Proceed shall be the Full Notice to Proceed
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Date;On the Full Notice to Proceed Date,Contractor shall commence and
shall thereafter diligently pursue the applicable Work in accordance with the
terms of this Contract.Contractor expressly agrees that the period of time
specified to complete all Work and the timely achievement of the Project
Guaranteed Dates includes an appropriate allowance for all hindrances and
delays incidental to the Work and no claim shall be made by Contractor for
hindrances or delays for any cause during the progress of the Work,except as
provided under Article 9 and Article 17.
(c)Contractor shall prosecute the Work in accordance with the Critical Path
Method Schedule.Contractor shall cause Mechanical Completion,Substantial
Completion and Final Completion to occur on or before the applicable Project
Guaranteed Dates (as such dates may be extended pursuant to Article 17 or
Article 22).
8.3 Schedule Recovery Plan.If Contractor fails,other than by reasons not attributable to
Contractor,to stay within thirty (30)days of the schedule (as determined using the
Critical Path Method Schedule)for achieving the applicable Project Guaranteed Dates,
then Contractor shall,within five (5)days after Contractor becomes aware of such delay,
O submit for approval by Owner,a written plan (the "Schedule Recovery Plan")to
complete all necessary Work to achieve such Project Guaranteed Dates not later than
thirty (30)days after the applicable Project Guaranteed Dates,including a revised Critical
Path Method Schedule.Within five (5)days after receipt of the proposed Schedule
Recovery Plan,Owner shall deliver written approval or disapproval of such plan to
Contractor.If Owner disapproves the proposed Schedule Recovery Plan and provides
comments to the Schedule Recovery Plan,Contractor shall resubmit a revised Schedule
Recovery Plan addressing such Owner comments within five (5)additional days.Review
and/or approval by Owner of a Schedule Recovery Plan shall not be deemed in any way
to have relieved Contractor of its obligations under this Contract relating to the failure to
achieve Substantial Completion or Final Completion by the applicable Project
Guaranteed Date,be a basis for an increase in the Contract Price,or limit the rights of
Owner under Section 16.1.
8.4 Interim Progress Milestones Recovery Plan.If the provisions of Section 8.3 are
invoked then the Contractor shall provide to the Owner,with the required recovery
schedule a revised Exhibit "G",Attachment G.l.1 "Interim Progress Milestones"and
Exhibit "D","Attachment 1","Progress Payment Schedule"in conjunction with the
submittal requirements of Section 8.3.The Owner shall review,approve,reject or
comment such submittals in a manner consistent with the terms of Section 8.3.
9.FORCE MAJEURE.
9.1 Events of Force Ma¡eure.No failure or omission to carry out or observe any of the
terms,provisions,or conditions of this Contract shall give rise to any claim by any Party
against any other Party hereto,or be deemed to be a breach or default of this Contract if
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such failure or omission shall be caused by or arise out of an event of Force Majeure.No
obligations of either Party that were required to be performed before the occurrence of an
event of Force Majeure causing the suspension of performance shall be excused as a
result of such occurrence.The obligation to pay money in a timely manner shall not be
subject to the Force Majeure provisions.
9.2 Notice.If either Party's ability to perform its obligations under this Contract is
affected by an event of Force Majeure,such Party shall promptly as reasonably possible,
upon learning of such event and ascertaining that it will delay its performance hereunder
(but in any event within two (2)Business Days after such Party becomes aware of such
delay),give Notice to the other Party (a "Delay Notice")stating the nature of the event,
its anticipated duration and effect upon the performance of such Party's obligations,and
any action being taken to avoid or minimize its effect.The burden of proof shall be on
the Party claiming to be affected pursuant to this Section 9.2.
9.3 Scope of Suspension;Duty to Mitigate.The suspension of performance due to an
event of Force Majeure shall be of no greater scope and no longer duration than is
required by such event and the effects of such event.The excused Party shall use its
reasonable efforts to:(a)mitigate the duration of,and costs arising from,any suspension
or delay in the performance;(b)continue to perform its obligations hereunder to the
extent unaffected by the Force Majeure event;and (c)remedy its inability to perform.
When the affected Party is able to resume performance of its obligation under this
Contract,such affected Party shall give the other Party Notice to that effect.
9.4 Removal of Force Majeure.If,within a reasonable time after an event of Force
Majeure that has caused Contractor to suspend or delay performance of the Work,action
to be undertaken at the expense of Owner has been identified and recommended to
Contractor,and Contractor has failed within ten (10)days after receipt of Notice thereof
from Owner to commence to take such action as Contractor could lawfully and
reasonably initiate to remove or relieve either the Force Majeure event or its direct or
indirect effects,Owner may,in its sole discretion and after Notice to Contractor,initiate
such reasonable measures as will be designed to remove or relieve such Force Majeure
event or its direct or indirect effects and,after such removal or relief has been
accomplished,require Contractor to resume full or partial performance of the Work.To
the extent Contractor's failure to take such measures results in additional expense in
addition to what Owner would have paid to Contractor,had Contractor taken such
measures,such additionalexpense shall be for Contractor's account.
9.5 Responsibilityof Contractor.Damages or injuries to Persons or properties resulting
from an event of Force Majeure during the performance of the obligations provided for in
this Contract shall not relieve the Contractor of the responsibility to bear the cost of the
damage or injuries caused by Contractor's negligence or misconduct to the extent such
costs are not covered by the insurance described in Article 23.
9.6 Contractor's Remedy.Contractor's sole remedy for the occurrence of an event of
Force Majeure shall be an extension of time as determined in accordance with Article 17.
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Contractor shall not suspend the Work unaffected by Force Majeure pending resolution
of the agreement on the extension of time under this Article 17 unless directed by Owner
in writing in accordance with Article 22.
10.SUBCONTRACTORS
10.1 Use of Subcontractors;Owner's Right to Object.The Persons (including,where
applicable,specific plant locations utilized by such Persons)identified in Exhibit "A"
have been pre-approved by Owner for use by Contractor as a Subcontractor for the
particular materials,equipment or services as specified in Exhibit "A",and are not
subject to the requirements of this Section 10.1.In the event Contractor desires to use a
substitute for any of the Persons (including,where applicable,specific plant locations
utilized by such Persons)listed in Exhibit "A",(including if such Person is not a Major
Subcontractor)then Contractor shall follow the procedures set forth in Exhibit "A".
Contractor shall follow the procedure set forth in this Section 10.1 with respect to
obtaining Owner approval of Major Subcontractors that are not otherwise subject to the
O procedures set forth in Exhibit "A".Within fifteen days (15)of the Effective Date,
Contractor shall provide Owner with a list of all anticipated potential Major
Subcontractors.Within fifteen (15)Business Days after receipt of such list,Owner shall
have the right to advise Contractor of any such potential Major Subcontractor to which it
reasonably objects,together with the reasons for such objection.Contractor shall remove
from the list any potential Major Subcontractor to which Owner reasonably objects.
Owner shall be deemed not to have objected to any potential Major Subcontractor on the
list to which Owner does not object within such fifteen (15)Business Day period.
Contractor shall have the right to add potential Major Subcontractors to the list subject to
the procedures set forth above.Other than for the Persons approved in accordance with
Exhibit "A",no Subcontractor for any Equipment,material,component or service in
connection with the Work covered by this Section 10.l shall be engaged by Contractor
prior to completion of the review process set forth in this Section 10.1.
10.2 No Approvals;Contractor Responsible for Work.Neither the use by Contractor of
any Subcontractors nor the review or failure to object by Owner of any Subcontractor
under this Article 10 shall:(a)constitute any approval of the Work undertaken by any
such Person;(b)cause Owner to have any responsibility for the actions,the Work,or
payment of such Person or to be deemed to be in a contractual or an employer-employee
relationship with any such Person;or (c)in any way relieve Contractor of its
responsibilities and obligations under this Contract.Contractor shall be responsible for
any Work performed by a Subcontractor.In no event shall any act or omission by any
Subcontractor constitute an event of Force Majeure except to the extent caused by an
O event or circumstance that itself constituted an event of Force Majeure.Notwithstanding
anything in Article 7 to the contrary,in no event shall Contractor submit or Owner be
obligated to review any Contractor's Invoice with respect to work performed by any
Major Subcontractor prior to the expirationof the review period provided in Section 10.1.
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10.3 Assignment.Each subcontract and purchase order entered into by Contractor with
respect to the Work with a Major Subcontractor shall contain a provision in the form of
Exhibit "P"consenting to assignment to Owner in the case of a Contractor default.
10.4 Information;Access.Contractor shall furnish such information and access relative
to its Subcontractors as Owner may reasonably request.Contractor shall promptly
provide Owner with all recall notices,defect notices or other product communications
from the Vendors and/or shall require that its Vendors send such notices and
communications directly to the Owner.
11.LABOR RELATIONS
11.1 General Management of Employees.Subject to Section 4.16,and notwithstanding
the provisions of Section 11.2,Contractor shall retain its rights to exercise and shall
exercise its management rights in performing the Work.Such management rights shall
include the rights to hire,discharge,promote,and transfer employees;to select and
O remove foremen or other Persons at other levels of supervision;to establish and enforce
reasonable standards of production;to introduce,to the extent feasible,labor saving
equipment and materials;to determine the number of craftsmen necessary to perform a
task,job,or project;and to establish,maintain,and enforce rules and regulations
conducive to safe,efficient and productive operations.Contractor shall plan and conduct
its operations so that its employees and Subcontractors of any tier will work
harmoniously with Owner's employees and other workers employed on the same or
related projects to assure that there will be no delays,work stoppages,excessive labor
costs,or other labor difficulties.Contractor shall enforce strict discipline and good order
among Contractor's employees and Subcontractors'employees.Contractor shall not
permit the employment of any unfit individual or individuals not skilled in the tasks
assigned to them.
l1.2 Labor Disputes.Contractor shall use,and shall cause each Subcontractor to use,
reasonable efforts to minimize the risk of labor related delays or disruption of the
progress of the Work.Contractor shall promptly take,and shall cause each Subcontractor
to take,any and all reasonable steps that may be available to resolve violations of
collective bargaining agreements or labor jurisdictional disputes,including the filing of
appropriate processes with any court or administrative agency having jurisdiction to
settle,enjoin,or award damages resulting from violations of collective bargaining
agreements or labor jurisdictional disputes.Contractor shall advise Owner promptly,in
writing,of any actual or threatened labor dispute of which Contractor has knowledge that
might materially affect the performance of the Work by Contractor or by any
O Subcontractors.Notwithstanding the foregoing,the settlement of strikes,walkouts,
lockouts or other labor disputes shall be at the discretion of the Party having the
difficulty.
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11.3 Personnel Documents.Contractor shall ensure that all its personnel and personnel
of any Subcontractors performing the Work are,and at all times shall be,in possession of
all such documents (including visas,driver's licenses and work permits)as may be
required by any and all Applicable Laws.
12.INSPECTION;EFFECT OF REVIEW AND COMMENT
12.1 Inspection and Uncovering Work.Owner shall have the right,but not the
obligation,to observe the Work and to inspect any item of Equipment or material,design,
engineering,service,workmanship or any other portion of the Work to be provided
hereunder,and Contractor shall make available for review by Owner,and provide to
Owner if requested by Owner,all design criteria,system descriptions,Equipment
specifications,Drawings and Specifications,design calculations,quality assurance
reports,design drawings,shop drawings,Required Manuals,other Contractor
Deliverables and other documents relating to the Work as required by this Contract.
Owner shall be responsible for all of Owner's (and its representatives')costs and
expenseswith respect to such inspections.
O Contractor shall submit to the Owner a detailed Inspection and Test Plan ("2")for each
material piece of Equipment within ten (10)days after award of such Equipment
purchase agreement and for all material Work to be performed within thirty (30)days of
the Effective Date which such ITP is to include the inspections and testing requirements
as provided in Exhibit "A".The ITP shall include pertinent Vendor manufacturing and
construction inspection operations and plans.Owner shall identify to Contractor the
Equipment or portions of Work Owner desires to be hold points so that Owner can
inspect or witness consistent with the ITP and the Critical Path Method Schedule before
such Work can be released for further manufacture,shipment and/or construction.
Contractor shall provide Owner with reasonable notice of any such hold points which
shall be not less than five (5)Business Days for manufacture and shipment related
inspections and not less than three (3)Business Days with respect to on-Site
construction-related inspections.If any portion of the Work so identified by Owner is
completed and/or covered without Contractor having given Owner the opportunity to
inspect such Work consistent with the ITP,Owner shall have the right to have such
portion of the Work uncovered or dismantled for inspection.The cost and schedule
impact of such uncovering and recovering (or dismantling and reconstruction)shall be
borne by Contractor whether the Work is found to be in conformance or nonconformance
with this Contract.
In the event Contractor has provided Owner an opportunity to inspect in accordance with
the prior paragraph and Owner did not exercise its right to so inspect,or in the event
Contractor was not required in accordance with the prior paragraph to provide Owner
O with an opportunity to inspect,then in either event,Owner shall have the right to have
any portion of the Work uncovered or dismantled for inspection upon Notice to
Contractor.The cost and schedule impact of such uncovering and recovering (or
dismantling and reconstruction)shall be borne by Contractor if the Work contains a
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Defect;and if the Work is found not to contain a Defect,Contractor shall be entitled to a
Change in Work in accordance with Article 17.
12.2 Right to Reject Work.Regardless of whether payment has been made therefor,
Owner shall have the right to reject any portion of the Work that contains any Defect.
Upon such rejection,Contractor shall promptly remedy,at its sole cost and expense,any
Defect that is identified by Owner as giving rise to such rejection.
12.3 General Inspection Rights.Contractor agrees that Owner and its representatives
may observe and inspect the Work,any item of Equipment (including Equipment under
fabrication),material,service,or workmanship to be provided hereunder and to observe
all tests of the Work and the Project (including factory or other tests performed at a
location other than the Site).Upon reasonable Notice to Contractor by Owner,
Contractor shall allow Owner and its representative's reasonable access to the Work
(including Equipment under fabrication)and the Project.Owner also shall be entitled to
review all Contractor's Drawings and Specifications or technical details pertaining
thereto as reasonably requested by Owner or its representatives.Contractor shall
incorporate the review and inspection rights set forth in this Article 12 in all Equipment
purchase orders and subcontracts.To facilitate such observations and inspections,
O Contractor shall maintain at the Site a complete set of all Drawings and Specifications
and current Critical Path Method Schedule.
12.4 Deliverables Schedule.Attached as part of Exhibit "H"is an initial deliverables
schedule.Within sixty (60)days after the Effective Date,Contractor shall provide a
Notice to Owner attaching a schedule identifying all Contractor Deliverables to be
delivered to Owner,the deadline for delivery thereof,and Owner's time period for review
and comment (in accordance with Section 12.5)with respect thereto,and as updated and
revised as required herein (the "Deliverables Schedule")which such schedule shall
comply with the requirements set forth in Exhibit "H"and incorporate the initial schedule
attached in Exhibit "H".The Deliverables Schedule shall include the Contractor
Deliverables and documents (and include the time periods for Owner's or a third party's
review)as set forth in Exhibit "A".Thereafter,Contractor shall at least on a monthly
basis provide Notice to Owner attaching an updated schedule identifying Contractor
Deliverables to be delivered to Owner,the deadline for delivery and Owner's time period
for review and comment with respect thereto.Owner shall have the right to promptly
review and comment on such Deliverables Schedule.If Owner provides any comments
with respect to the Deliverables Schedule to Contractor,then Contractor shall incorporate
changes into such Deliverables Schedule addressing such comments,and resubmit the
same to Owner.Such incorporation of changesto address Owner's reasonable comments
shall not be considered a Change in Work.If Owner fails to comment within ten (10)
Business Days after receipt of such Notice,Owner shall be deemed to have accepted the
Deliverables Schedule.
The Deliverables Schedule shall provide an Owner's review period of adequate length of
time to permit a complete review by Owner based on the nature and extent of items
involved and the volume and content of other Contractor Deliverables submitted to
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Owner during the same period.The Owner review time periods shall be consistent with
those set forth in Exhibit "A".
12.5 Owner Review of Documents.Contractor shall submit for review to Owner
Contractor Deliverables in accordance with the requirements of Exhibit "A",including
the Deliverables Schedule and Exhibit "H".Contractor shall ensure that all such items
undergo a comprehensive independent in-house review and approval process before
submission of such items to Owner.After receipt of any Contractor Deliverable,Owner
shall have the right,during the time period of fifteen (15)Business Days from the receipt
by Owner of such applicable Contractor Deliverable (except to the extent that a different
review period is specifically provided for in Exhibit "H")to describe any Defects in the
design or other Work identified in such Contractor Deliverable.Notwithstanding
anything in Article 7 to the contrary,in no event shall Contractor submit any Contractor's
Invoice with respect to Work performed pursuant to any such Contractor Deliverables
prior to the expiration of the review period set forth in this Section 12.5.Issuance by
Contractor of any purchase orders prior to Owner completing its review shall be at
Contractor's own risk.
12.6 Remedy of Defect -Contractor Deliverables.If Owner identifies any Defect in the
design with respect to any Contractor Deliverables submitted for review,then ContractorOshallincorporatechangesintosuchContractorDeliverablesaddressingandremedying
the Defect and resubmit the same to Owner,and such incorporation of changes to address
Owner's comments shall not be considered a Change in Work.No Contractor
Deliverable subject to this Section 12.6 shall be released for use in connection with the
Work prior to completion of the review process set forth in Section 12.5.
12.7 Limitation on Owner's Obligations.Inspection,review,acknowledgement,
acceptance,approval or comment by Owner or any of its representatives,with respect to
any subcontract or purchase order or any Drawings and Specifications,Contractor
Deliverables,samples,and other documents,or any other Work or services performed by
Contractor or any Subcontractor,is solely at the discretion of Owner and shall not in any
way affect or reduce Contractor's obligations to complete the Work in accordance with
the provisions of this Contract or be deemed to be a warranty or acceptance by Owner
with respect to such Work.
13.FOUNDATION COMPLETION AND PROJECT MECHANICAL COMPLETION
OF THE WORK
13.1 Foundation Completion.Contractor shall achieve Foundation Completion with
respect to each individual foundation that is part of the Work.Foundation Completion
with respect to an individual foundation means the achievement of the following
milestones:
(a)Such foundation is mechanically completed and installed in accordance with
the Scope of Work;
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(b)Such foundation is structurally complete and contains all necessary embedded
inserts;
(c)The concrete portion of such foundation has cured so as to have achieved the
minimum strength necessary to allow assembly,erection and installation of
the tower thereon;
(d)Backfilling of the area surrounding such foundation has been completed;
(e)All of the crane hardstandings and tower erection lay-down and work areas
have been completed in accordance with the construction plan approved under
this Contract;
(f)Contractor has provided sketches of each foundation and the tower (both
above-ground and below-ground in the immediately surrounding area);
(g)Embedded grounding material has been installed and ground grid analysis has
been completed;
(h)All coatings and grout required pursuant to Exhibit "A"have been installed;
(i)Owner has accepted or is deemed to have accepted a Foundation Completion
Certificate with respect to such Work pursuant to Section 13.3.
13.2 Project Mechanical Completion.The followingare conditions precedent to Project
Mechanical Completion:
(a)Contractor shall have achieved Foundation Completion for each foundation
that is part of the Project;
(b)The Project and each sub-system of the Project,in each case to the extent
required for commissioning,initial operation,adjustment and testing is
mechanically,electrically,and structurally constructed in accordance with the
requirements of this Contract,the Scope of Work and Industry Standards,
including completion of the Mechanical Completion Tests in accordance with
the Mechanical Completion Test Procedures;
(c)The Project and each sub-system of the Project may be commissioned and
operated without damage to the Project or the Site and any sub-system or any
other property on or off the Site,and without injuryto any Person;
(d)The Project and each sub-system of the Project is functionally complete to the
extent necessary for commissioning,initial operation,adjustment,and testing;
and
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(e)Owner has accepted or is deemed to have accepted a Project Mechanical
Completion Certificate with respect to such Work pursuant to Section 13.4.
13.3 Achievement of Foundation Completion When Contractor believes that it has
achieved Foundation Completion it shall deliver to Owner a completed Foundation
Completion Certificate.Such certificate shall include the results of all testing relevant to
achievement of such milestone and otherwise contain a report in a form reasonably
acceptable to Owner and with sufficient detail to enable Owner to determine that
Contractor has achieved Foundation Completion.The report shall include,but not be
limited to,the following:
(a)An organized submittal for each foundation in both electronic and hard
copy format including,but not limited to,the following:
a.Those items identified in Section 13.1 (f);
b.foundation excavation report;
c.open hole inspection report (if applicable);
d.concrete placement log,includingconcrete batch tickets;
e.direct embed installation report;
O f.foundation installation report;
g.anchor bolt foundation installation report;
h.structure grounding and resistancemeasurement;
i.steel mill certificates;
j.compressive strength report
k.non-destructive testing /discrepancy resolution report
(b)The ground grid analysis referred to in Section 13.1 (g)in its native file
format;
(c)Other documentation as requestedby Owner to verify completion of those
items identified in Section 13.1.
Owner shall,within ten (10)Business Days,following receipt of a Foundation
Completion Certificate,either:(a)deliver to Contractor a countersigned
Foundation Completion Certificate,indicating its acceptance of the achievement
of such milestone;or (b)if reasonable cause exists for doing so,notifyContractor
in writing that such milestone has not been achieved,stating in detail the reasons
therefor.If Owner delivers the notice under the preceding clause (b),Contractor
promptly shall take such action,including the performance of additional Work to
achieve such milestone,and upon completion of such actions shall issue to Owner
another notice with respect to such milestone pursuant to this Section 13.2.Such
procedure shall be repeated as necessary until such milestone has been achieved.
For all purposes of this Agreement,the date of achievement of Foundation
O Completion shall be the date on which Contractor delivers to Owner the
Foundation Completion Certificate that Owner ultimately accepts or is deemed to
have accepted or pursuant to a determination under the dispute resolution
procedures,should have accepted.If Owner fails to respond to Contractor's
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submitted Foundation Completion Certificate within the time set forth above,
such Certificate shall be deemed accepted by Owner on the date submitted by
Contractor.Any disputes regarding the existence or correction of any such
alleged deficiencies shall be resolved pursuant to Article 36.
13.4 Achievement of Project Mechanical Completion When Contractor believes that it
has achieved Project Mechanical Completion it shall deliver to Owner a completed
Project Mechanical Completion Certificate.Such certificate shall include the results of
all testing relevant to achievement of such milestone and otherwise contain a report in a
form reasonably acceptable to Owner and with sufficient detail to enable Owner to
determine that Contractor has achieved Project Mechanical Completion.
Owner shall,within ten (10)Business Days,following receipt of a Project Mechanical
Completion Certificate,either:(a)deliver to Contractor a countersigned Project
Mechanical Completion Certificate,indicating its acceptance of the achievement of such
milestone;or (b)if reasonable cause exists for doing so,notifyContractor in writing that
such milestone has not been achieved,stating in detail the reasons therefor.If Owner
delivers the notice under the preceding clause (b),Contractor promptly shall take such
action,including the performance of additional Work to achieve such milestone,and
upon completion of such actions shall issue to Owner another notice with respect to such
O milestone pursuant to this Section 13.4.Such procedure shall be repeated as necessary
until such milestone has been achieved.For all purposes of this Agreement,the date of
achievement of Project Mechanical Completion shall be the date on which Contractor
delivers to Owner the Project Mechanical Completion Certificate that Owner ultimately
accepts or is deemed to have accepted or pursuant to a determination under the dispute
resolution procedures,should have accepted.If Owner fails to respond to Contractor's
submitted Project Mechanical Completion Certificate within the time set forth above,
such Certificate shall be deemed accepted by Owner on the date submitted by Contractor.
Any disputes regarding the existence or correction of any such alleged deficiencies shall
be resolved pursuant to Article 36.
14.TESTS AND TESTING
14.1 Test Procedures.Contractor shall:(i)provide for Owner's review and approval
detailed Mechanical Completion Test Procedures in accordance with the requirements for
testing,documenting and satisfactorily achieving each Acceptance Requirement,as set
out in Exhibit "A"not less than one hundred and twenty (120)days prior to the start of
testing and such Mechanical Completion Test Procedures must be agreed upon by
O Contractor and Owner at least sixty (60)days prior to the commencement of testing with
the Test Procedures clearly indicating when in the testing schedule Interconnection will
be required;and (ii)keep the Project Representative apprised of the specified schedule
and changes thereto for the commencement and performance of such activities.
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14.2 Conduct of Tests.The representatives of Owner and Owner's Engineer shall have
the right,but not the obligation,to be present during any tests performed by Contractor
under this Contract.
14.3 Test Schedules.A projected schedule shall be provided by Contractor with
submission of Mechanical Completion Test Procedures required in Section 14.1 and
agreed to at least thirty (30)days prior to the anticipated start of the applicable Tests.
Contractor shall provide Owner at least ten (10)days'prior Notice thereof prior to
performing such tests.The Contractor shall keep the Project Representative apprised of
the specified schedule,and changes therein,for the commencement and performance of
such tests,and shall give the Project Representative at least five (5)Business Days'prior
Notice of the re-performance of any such tests.A test conducted by the Contractor
without the required Notice to Owner shall not be valid for the purposes of this Contract.
14.4 Owner Testing.Owner shall provide Notice to Contractor of any construction
deficiencies identified during any Owner Testing as soon as practicable but no later thanOfive(5)days after identification of the deficiency and in all cases not later than fifteen
(15)days prior to the Substantial Completion Guaranteed Date.
15.SUBSTANTIAL COMPLETION AND FINAL COMPLETION
15.1 Substantial Completion.Substantial Completion shall be achieved when:
(a)Contractor shall have achieved Foundation Completion for each
foundationthat is part of the Project;
(b)The Project and each sub-system of the Project,in each case to the extent
required for commissioning,initial operation and adjustment is
mechanically,electrically,and structurally constructed in accordance with
the requirements of this Contract,the Scope of Work and Industry
Standards,including completion of all testing required in Exhibit A;
(c)The Project and each sub-system of the Project may be commissioned and
operated without damage to the Project and any sub-system or any other
property on or off the Site,and without injuryto any Person;
(d)The Project and each sub-system of the Project is functionallycomplete to
the extent necessary for commissioning,initial operation,adjustment and
testing;
(e)Owner has received copies of all Contractor Acquired Permits required for
operation of the Project;
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(f)Contractor has certified by Notice to Owner that it has administered the
training required by Section 4.22;
(g)Owner has received all Contractor Deliverables due prior to Substantial
Completion in accordance with the terms of this Contract;
(h)The Punchlist and a schedule and budget for completion of each Punchlist
Item,in each case reasonably satisfactory to Owner,have been developed
by Contractor and delivered to Owner;
(i)All Work other than those Punchlist Items shown on the Punchlist or
Work which by its nature is to be performed after Substantial Completion
has been completed by Contractor;
(j)The Project as a whole may be operated in accordance with Industry
Standards and manufacturers'warranties without damage to the Project or
any sub-system or part thereofor any other property on or off the Site and
without injuryto any Person;
(k)No Contractor Event of Default exists;O (1)All other Work except for the Punchlist,,which is not part of the Work
necessary to commission,test,start-up and operate the Project,has been
completed in accordance with Industry Standards and manufacturers
warranties and can be utilized and function without damage to the Work,
the Site or any other property on or off the Site and without injuryto any
Persons;and all Applicable Permits with respect to such Work have been
provided to Owner;and
(m)Owner has accepted or is deemed to have accepted a Substantial
Completion Certificate with respect to such Work pursuant to Section
15.2.
15.2 Achievement of Substantial Completion.When Contractor believes that it has
achieved Substantial Completion,it shall deliver to Owner a completed Substantial
Completion Certificate.Such certificate shall include the results of all testing relevant to
achievement of such milestone and otherwise contain a report in a form reasonably
acceptable to Owner and with sufficient detail to enable Owner to determine that
Contractor has achieved Substantial Completion.Owner shall,within ten (10)Business
Days following receipt of such certificate,either:(a)deliver to Contractor a
countersigned Substantial Completion Certificate indicating its acceptance of the
achievement of such milestone;or (b)if reasonable cause exists for doing so,notify
Contractor in writing that such milestone has not been achieved,stating in detail the
O reasons therefor.If Owner delivers the notice under the preceding clause (b),Contractor
promptly shall take such action,including the performance of additionalWork to achieve
such milestone,and upon completion of such actions shall issue to Owner another Notice
with respect to such milestone pursuant to this Section 15.2.Such procedure shall be
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repeated as necessary until such milestone has been achieved.For all purposes of this
Agreement,the date of achievement of Substantial Completion shall be the date on which
Contractor delivers to Owner the Substantial Completion Certificate that Owner
ultimately accepts or is deemed to have accepted or,pursuant to a determination under
the dispute resolution procedures,should have accepted.If Owner fails to respond to
Contractor's submitted Substantial Completion Certificate within the time set forth
above,such Certificate shall be deemed accepted by Owner on the date submitted by
Contractor.Any disputes regarding the existence or correction of any such alleged
deficiencies shall be resolved pursuant to Article 36.
15.3 [Reserved.]
15.4 [Reserved.]
15.5 Final Completion.Final Completion of the Work and the Project shall be deemed
to have occurred only if and when all of the followinghave occurred:
(a)Contractor has achieved Substantial Completion in accordance with
Section 15.2;O (b)Owner has received at least one (1)hard copy and one (1)electronic copy
of legible and complete as-built documentation,calculations,test data,
performance data,Equipment descriptions,Required Manuals,training
aids,Spare Parts lists,and other technical information each as required
hereunder for Owner to start up,operate,commission,and maintain the
Project;
(c)All tools and Spare Parts purchased by Contractor to replace those used by
Contractor during commissioning have been purchased for delivery to
Owner free and clear of liens;
(d)All Contractor's and Subcontractors'personnel,supplies,tools,
equipment,machinery,surplus materials,waste materials,rubbish,and
temporary facilities to which Owner does not hold title have been removed
from the Site,and any permanent facilities used by Contractor and the Site
have been restored in accordance with the terms of the Contract.All
cleanup and disposal shall be conducted in accordance with all Applicable
Laws;
(e)Owner has received from Contractor all information requested by Owner
and required for Owner's final fixed asset records with respect to the
Project in accordance with Section 4.9;O (f)Contractor has paid Owner all amounts due hereunder and not in dispute;
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(g)Contractor has assigned to Owner or provided Owner with all warranties
or guarantees that Contractor received from Subcontractors to the extent
Contractor is obligated to do so pursuant to Section 18.6:
(h)The Punchlist Items have been completed to the satisfaction of Owner;
(i)Contractor has delivered the certifications,Final Release and Waiver of
Liens and Claims,or the bonds,in accordance with Section 7.6 and has
delivered such other documents and certificates as Owner has reasonably
requestedto ensure compliance with all Applicable Laws;
(j)Contractor has,within 60 days of the Substantial Completion Date,
provided a detailed list of quantities by Property Retirement Unit (PRU)
for each Pricing Schedule Item shown in Exhibit "Y".The material and
installation costs for major pieces of equipment should be broken out
separately.Examples of this equipment are identified in Exhibit "Y".For
transmission,the final quantities shall match the final schedule of values
updated by Contractor in accordance with Exhibit "D".In addition for
transmission,Exhibit "Y"identifies specific information that will be
submitted by Contractor in an electronic format acceptable to Company;
(k)RESERVED
(1)Owner has accepted or is deemed to have accepted a Final Completion
Certificate pursuant to Section 15.6.
15.6 Achievement of Final Completion.When Contractor believes that it has achieved
Final Completion,it shall deliver to Owner a completed Final Completion Certificate.
Such certificate shall include the results of all testing relevant to achievement of such
milestone and otherwise contain a report in a form reasonably acceptable to Owner and
with sufficient detail to enable Owner to determine that Contractor has achieved Final
Completion.Owner shall,within twenty (20)Business Days following receipt of such
certificate,either:(a)deliver to Contractor a countersigned Final Completion Certificate
indicating its acceptance of the achievement of such milestone;or (b)if reasonable cause
exists for doing so,notify Contractor in writing that such milestone has not been
achieved,stating in detail the reasons therefor.If Owner delivers the notice under the
preceding clause (b),Contractor promptly shall take such action,including the
performance of additional Work to achieve such milestone,and upon completion of such
actions shall issue to Owner another notice with respect to such milestone pursuant to this
Section 15.6.Such procedure shall be repeated as necessary until such milestone has
been achieved.For all purposes of this Agreement,the date of achievement of Final
Completion shall be the date on which Contractor delivers to Owner the Final
Completion Certificate that Owner ultimately accepts or is deemed to have accepted or,
pursuant to a determination under the dispute resolution procedures,should have
accepted.If Owner fails to respond to Contractor's submitted Final Completion
Certificate within the time set forth above,such Certificate shall be deemed accepted by
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Owner on the date submitted by Contractor.Any disputes regarding the existence or
correction of any such alleged deficiencies shall be resolved pursuant to Article 36.
15.7 Contractor's Access After Substantial Completion.Following Substantial
Completion,Owner shall provide Contractor with reasonable and timely access subject to
the terms of this Contract to complete Punchlist Items and to satisfy the other
requirements for Final Completion;provided,however,Owner shall not be obligated
hereunder to shut down,reduce or otherwise interfere with its operation of the Project or
the Transmission Grid as a direct or indirect result of allowing Contractor access pursuant
to this Section 15.7.Owner will:(a)provide Contractor with reasonable advance Notice
of any extended scheduled outages of the Project or the Transmission Grid and the
expected duration thereof;and (b)cooperate with Contractor with regard to reasonable
requests by Contractor for access during such extended scheduled outages of the Project
or the Transmission Grid.
16.DELAY DAMAGES
16.1 Liquidated Damages for Delay.Contractor understands that if the Substantial
Completion does not occur on or before the Substantial Completion Guaranteed Date or
O if the operation of the Transmission Grid is interrupted or otherwise affected,Owner will
suffer substantial damages,including,potentially,additional interest and financing
charges on funds obtained by Owner to finance the Work,reduction of the return on
Owner's equity investment in the Project,and other operating and construction costs and
charges.Therefore the following liquidated damages,collectively the "Delay Liquidated
Damages",shall be payable by Contractor to Owner:
16.1.1.Prolect Mechanical Completion Delay LDs.Contractor agrees that,if Project
Mechanical Completion is not achieved by the applicable Project Mechanical
Completion Guaranteed Date,Contractor shall pay liquidated damages ("Project
Mechanical Completion Delay LDs")in the amount of $per day for each
day by which the Project Mechanical Completion Date is delayed
16.1.2.Substantial Completion Delay LDs.Contractor agrees that,if Substantial
Completion is not achieved by the applicable Substantial Completion Guaranteed
Date,Contractor shall pay liquidated damages ("Substantial Completion Delay
LDs")in the amount of $per day for each day by which the Substantial
Completion Date is delayed.Substantial Completion Delay LD's will be in addition
to the Project Mechanical Delay LD's,where Project Mechanical Completion Date
has not been achieved by the date of Substantial Completion Guaranteed Date,and
until the date of accepted Project Mechanical Completion.O Delay Liquidated Damages will not be assessed to the extent that the failure to meet the dates is
attributable is caused by an Owner caused delay.
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l 6.1.3.Transmission Grid Interference.Contractor agrees to pay liquidated damages in
the amount of $per day,per transmission line for each day that a
transmission line which is a part of the Transmission Grid is out of service or
materially interfered with prior to Final Completion,to the extent of a Contractor
Cause.
16.1.4As-Built Drawings.Contractor agrees to pay liquidated damages in the amount of One
Thousand Dollars ($1,000)per day for each and every day that the As-Built drawing completion
date,as specified in Exhibit "G"is not achieved
16.1.4.Proration of Daily Amounts.Notwithstanding that the liquidated damage
amounts set forth in this Section 16.1 are identified on a per day basis,the actual
amount of liquidated damages will be determined and be payable on an hourly
basis;and the amount per hour is determined by dividing the per day amount by
twenty-four.
16.2 Payment of Liquidated Damages.Any amount Contractor is obligated to pay to
Owner under Section 16.1 shall be due and payable ten (10)days after receipt of a written
request therefor from Owner.
16.3 Offset.If Contractor is obligated to pay any amount to Owner pursuant to this
Article 16 and such amount is not paid within the time period referred to in such Section,
then Owner shall have the right to offset any such amount against any amount then or
thereafter due from Owner to Contractor under this Contract and to exercise its rights
against any security provided by or for the benefit of Contractor in such order as Owner
may elect in its sole discretion.
16.4 Sole and Exclusive Remedy.Contractor and Owner agree that Owner's actual
damages in the event of delays in achieving completion of the various parts of the Project
would be extremely difficult or impracticable to determine and that,after negotiation,
Owner and Contractor have agreed that the Delay Liquidated Damages set forth in
Section 16.1 are a reasonable estimate of the damages that Owner would incur as a result
of such delays or failures and are not intended in any way to be a penalty.Subject to
Article 35,the amounts payable under Section 16.1 and,if such failure constitutes a
Contractor Event of Default the remedies provided for in Article 20,shall be Owner's
sole remedies for delays in achieving Substantial Completion by the Substantial
Completion Guaranteed Date;and interruption or interference with the Transmission Grid
as provided in Sections 16.1.2.
17.CHANGES IN THE WORK
17.1.Change in Work.A Change in Work may result only from any of the following:
(a)A Change in Work required by Owner in writing,including an acceleration of
Work,in accordance with Section 17.2;
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(b)A Change in Work as provided in Section 4.33(d)(Hazardous Materials);
(c)A Change in Work relatingto Owner Acquired Permits as provided in Section
(d)A Change in Work as provided in Section 12.1 (uncovering non-defective
Work);
(e)A Change in Law;
(f)An Owner Caused Delay;
(g)Such other event which pursuant to the terms of this Contract expressly permit
Contractor to obtain a Change in Work in accordance with this Article 17.
A Change in Work may result from an event of Force Majeure but Contractor's sole
remedy for the occurrence of an event of Force Majeure shall be an extension of time in
accordance with Section 9.6 and Section 17.4.3.
17.2 By Owner.Owner may request a Change in Work,whether such changes are
modifications,alterations,decelerations,additions,or deletions.Upon receipt of such
Notice,Contractor shall prepare and provide Owner with a completed Change in Work
form identified in Exhibit "E"within fifteen (15)Days thereafter.All such changes shall
be made in accordance with this Article 17 and shall be considered,for all purposes of
this Contract,as part of the Work.
17.3 Bv Contractor.Contractor shall only be entitled to request a Change in Work to the
extent permitted in Section 17.1 upon a)delivery by Contractor to Owner of a written
notice of its intention to submit a request for a Change in Work within five (5)Business
Days after the date that Contractor becomes aware of the event or condition giving rise to
the entitlement to a Change in Work,and b)Contractor prepares and provides Owner
with a completed Change in Work form identified in Exhibit "E"within fifteen (15)Days
thereafter.
17.4 Adjustments to the Contract.
17.4.1 Adjustments to Project Schedule.If Owner directs a Change in Work in
accordance with Section 17.2,or if Contractor is entitled to request a Change in
Work in accordance with Section 17.3,and if (in either case)as a result,
Contractor shall be actually and demonstrably delayed in the performance of a
Critical Path Item as scheduled in the Critical Path Method Schedule,then
O Contractor may request a Change in Work and upon such request,the Critical
Path Method Schedule (and each Project Guaranteed Date referenced therein)
shall be extended by the period of time that Contractor is actually and
demonstrably delayed in the performance of a Critical Path Item.Owner shall
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have the right,in lieu of extending a Project Guaranteed Date,to direct Contractor
to accelerate the Work in accordance with Section 17.2.
17.4.2 Adjustments to the Contract Price.If Owner directs a Change in Work in
accordance with Section 17.2,or if Contractor is entitled to request a Change in
Work in accordance with Section 17.3,and if (in either case)such Change in
Work impacts Contractor's costs of performing the Work,then an equitable
adjustment to the Contract Price shall be made.Where Contractor is entitledto an
equitable adjustment,and where Exhibit R,as applicable,provides unit price rates
with respect to the applicable Change in Work,the Contract Price shall be
adjusted solely in accordance with the unit price rates set forth in Exhibit R ,as
applicable.Without limiting the generality of the forgoing,unit price rates shall
be the sole basis for equitable price adjustments with respect to Changes in Work
requiring:route changes with respect to the transmission line,transmission line
pole relocations,additions of transmission pole structures,changes in
transmission pole structure types,changes in foundation types and/or changes in
access road routes or configurations.For the avoidance of doubt,.For Changes
in Work for which no unit price rates are provided in Exhibit R,then the Contract
Price shall be changed to reflect the amount of increased or decreased costs at
such other fixed price,unit rate,time and materials rates or other rates as the
Parties may agree;provided,however,that,to the extent reasonably possible,
such equitable adjustments to the Contract Price shall be consistent with
commodity cost,equipment cost,labor cost,resource staffing requirements,
overhead,profit,and other assumptions embedded in the unit price rates for
analogous work as set forth in Exhibit R.Owner may direct the Contractor to
proceed with the Change in Work pending negotiation of a Change in Work Form
by issuing a written unilateral directive (which shall be considered a Change in
Work Form for purposes of Section 17.7.2)and Contractor shall continue with the
performances of Work.
17.4.3 Adjustments to the Progress Payment Amounts or Progress
Payment Schedule.If Owner directs a Change in Work in accordance with
Section 17.2,or if Contractor is entitled to request a Change in Work in
accordance with Section 17.3,and if (in either case)such Change in Work
impacts Contractor's costs or schedule for performing the Work,then (a)an
equitable adjustment to the Contract Schedule shall be made in accordance with
Section 17.4.1;(b)an equitable adjustment to the Contract Price shall be made in
accordance with Section 17.4.2.If either or both equitable adjustment(s)entitle
the Contractor to a change in any of the Interim Progress Milestone,Progress
Payment Amount or Progress Payment Schedule then the Contractor shall be
solely responsible for applying to the Owner for written authorization of an
equitable adjustment of such item(s)as they may apply by providing all relevant
and necessary supporting documentation and analysis to permit the Owner to
provide a decision in such matters.The Owner shall review such application in a
timely manner and mutuallyagreewithin 30 days with the Contractor revisions to
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the Interim Progress Milestones,Progress Payment Amounts and Progress
Payment Schedule as they may apply.
17.4.4 Force Majeure.Upon the occurrence of an event of Force Majeure,if
Contractor shall be actually,demonstrably and materially delayed in the
performance a Critical Path Item as scheduled in the Critical Path Method
Schedule as a result of such event or circumstance,then Contractor may request a
Change in Work under which the Project Guaranteed Dates shall be extended by
the period of time Contractor is so actually and demonstrably delayed in the
performance of a Critical Path Item and as set forth in the Change in Work Form
accepted by Owner,but there shall be no change to the Contract Price.
17.4.5 Reduction ln Cost.If a Change in Work involves a reduction in the cost to
perform the Work including a reduction in the use of less labor resulting in
reduced labor costs,there shall be a lump-sum deduction from the Contract Price,
which deduction will be based on unit price rates set forth in Exhibit R.For
Changes in Work for which no unit price rates are provided in Exhibit R then the
Contract Price shall be reduced by the amount that Contractor has in its budget for
the Work involved,inclusive of direct and indirect costs,overhead,margins,
contingencies and fees.
17.4.6 Other Terms and Conditions to Apply.Subject to the equitable
adjustments to price and schedule contemplated in this Article 17,all Changes in
Work shall continue to be subject to the terms and conditions of this Contract
including terms and conditions allocating Project risks between the Parties.
17.5.[RESERVED].
17.6 Disputes.If there is a dispute between the Parties about a request for a Change in
Work by either Party under this Article 17,such dispute shall be resolved in accordance
with Article 36.Notwithstanding any provision of this Article 17 to the contrary,the
Parties will execute a Change in Work to reflect the resolution of such dispute.
17.7 Procedures.
17.7.1 Contractor's Estimate.Contractor shall,as soon as practicable after
notification or becoming aware of such an event,prepare and deliver to Owner a
detailed statement of the proposed Change in Work setting forth:(a)a description
of the work covered by such Change in Work;(b)a detailed estimate of the cost
(identifying labor,equipment,material costs and other expenses)and the
estimated time required to implement the Change in Work and a quote for a firm
price;and (c)the impact such Change in Work would have on (i)the Progress
O Payment Schedule;(ii)the Critical Path Method Schedule;(iii)the Project
Guaranteed Dates;(iv)the Warranties;(v)the costs of operation and maintenance
of the Project following Substantial Completion;and (vi)any other obligations of
either Party of this Contract.Contractor shall not charge Owner for the costs of
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preparing the Change in Work Form unless the Change in Work Form is not
implemented.
17.7.2 No Unapproved Scope Changes.In no event shall Contractor be entitled to
undertake or be obligated to undertake any Change in work until Contractor has
received a Change in Work Form submitted by Contractor and accepted by Owner
and,in the absence of such Change in Work Form,if Contractor undertakes any
Changes in Work,Contractor shall make any such Changes in Work at
Contractor's sole risk and expense and Contractor shall not be entitled to any
payment or other relief under the Contract for undertaking such changes.
17.7.3 Failure to Comply with Notice Requirements.In the event Contractor
does not provide Notice within the five (5)Business Days of the date Contractor
became aware of the facts or circumstances that permit Contractor to seek a
Change In Work permitted under this Article 17 as required by Section 17.3,
Contractor shall not be entitled to a Change In Work under this Article 17 or any
other relief hereunder.
17.8 No Suspension Contractor shall not suspend the Work pending resolution of any
O proposed Change in Work unless directed by Owner in writing in accordance with Article
L.Contractor's rights in the cases of a dispute involving a proposed Change in Work
(or the equitable adjustments related to a proposed Change in Work)shall be as set forth
in Section 17.4 and Article 36.
18.WARRANTIES CONCERNING THE WORK
18.1 Project Warranties.During the Warranty Period,Contractor warrants and
guarantees with respect to the Project (the "Project Warranties")that all Work shall
conform to the Materials Warranty set out in Section 18.2 and that all Work (other than
Work covered by the Materials Warranty),including the Pre-Construction Services,the
design and construction of the Project and the installation of the Equipment shall be:(a)
in accordance with Industry Standards;(b)free from Defects;(c)in conformance with all
applicable requirements of this Contract;and (d)safe and fit for Owner's use as part of
the Transmission Grid as set forth in this Contract.In addition,with respect to
Pre-Construction Services,Contractor shall perform the Pre-Construction Services in
accordance with the scope set forth in the Limited Notice to Proceed and using the
standards of care,skill,and diligence normally provided by a professional in the
performance of similar services,and shall comply with all laws,codes and standards
applicable to the Pre-Construction Services.
O 18.2 Materials Warranty.During the Warranty Period,Contractor further warrants that
all Equipment and other items furnished by Contractor and any Subcontractors hereunder
shall be new and of good and suitable quality when installed,shall conform to the
requirements of this Contract,including the Scope of Work,shall be free from any
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charge,lien,security interest or other encumbrance and shall be free of any Defects (the
"Materials Warranty").If requested by Owner,Contractor shall provide Owner with
satisfactory evidence that any item(s)of Equipment satisfy the Materials Warranty.As
part of the Materials Warranty,Contractor specifically covenants that all rights and
benefits which Contractor possesses with regard to warranty obligations of any
manufacturer of Equipment shall be fully available to or assigned to Owner.
18.3Warranty Period.The "Warranty Period"for the Work shall be as follows:
(a)With respect to the Work),a period of 10 years from the Substantial
Completion Date.
Contractor shall have no liability under Section 18.1 or 18.2 from and after the
end of the Warranty Period (as such period may be extended in accordance with
the terms hereof);provided,however,that the Warranty Period for any item or
part required to be repaired,corrected or replaced following discovery of a Defect
during the original Warranty Period shall be extended from the time of such
repair,correction or replacement for a period that in no event shall extend beyond
a date that is five (5)years after expiration of the Warranty Period.
18.4 Enforcement After Expiration.Commencing on the expiration of the Warranty
Period,or such later date as is provided in Section 18.3,Owner shall be responsible for
enforcing all representations,warranties,and guarantees from Subcontractors,and
Contractor shall provide reasonable assistance to Owner,on a reimbursable basis,in
enforcing such representations,warranties,and guarantees,when and as reasonably
requested by Owner.In addition,prior to the expiration of each respective Warranty
Period,or such later date as is provided in Section 18.3 with respect to Work required to
be re-performed,Owner,at its option and upon prior written Notice to Contractor,may
enforce any such warranty against any Subcontractor if:(a)Owner determines that
Contractor has not enforced such warranty against the Subcontractor in a timely and
diligent manner or performed the warranty work itself,or (b)a Contractor Event of
Default exists and owner has taken actions to terminate this Contract in accordance with
the terms hereof.
18.5 Exclusions.The Project Warranties and Materials Warranty set forth in Section 18.1
and Section 18.2 shall not apply to damage to any Equipment to the extent such damage
is caused by:
(a)Owner's failure to operate and maintain such Equipment in accordance
with Industry Standards;
(b)Owner's operation of such Equipment in excess of the operating
specifications for such Equipment;
(c)The use of parts or consumables in the repair or maintenance of such
Equipment that are not in accordance with Industry Standards;
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(d)Any event of Force Majeure;or
(e)Normal wear and tear.
18.6 Subcontractor Warranties.Without in any way derogating from Contractor's own
representations and warranties with respect to all of the Work,Contractor shall use its
reasonable efforts:(a)to obtain from all Subcontractors (including Vendors)any
representations,warranties,guarantees,and obligations offered by such Subcontractors;
and (b)to attempt to negotiate warranty periods longer than the Warranty Periods at no
additional cost to Contractor with respect to design,materials,workmanship,Equipment,
tools,supplies and other items furnished by such Subcontractors.All representations,
warranties,guarantees,and obligations of such Subcontractors shall be assigned to
Owner,in accordance with the provisions of this Contract,including Exhibit "P",to
Owner upon Substantial Completion;provided,however,that,notwithstanding such
assignment,Contractor shall also be entitled to enforce each such representation,
warranty,guarantee,and obligation through the end of the applicable warranty periods as
an express third-party beneficiary.Contractor shall deliver to Owner promptly following
execution of such applicable contract with a Subcontractor and upon Owner's request
duly executed copies (with pricing information redacted)of all contracts containing such
representations,warranties,guarantees,and obligations.
18.1.Correction of Defects.
(a)Owner shall promptly give Notice to Contractor upon discovery of any failure
of any of the Work to satisfy the Project Warranties or the Materials Warranty
during the applicable Warranty Period (including Subcontractor warranty
period).In the event of any such failure under circumstances in which there is
an immediate need as defined in Section 18.8,then Owner shall perform such
warranty work for Contractor's account in accordance with the Warranty
Procedures;provided,however,that the failure to comply with such Warranty
Procedures shall not void the Project Warranties or the Materials Warranty.
In all other cases,Contractor shall,at its own cost and expense (except to the
extent of insurance proceeds actually received),be responsible for re-
performing any necessary engineering and purchasing relating to such
Equipment,material,labor,and shipping,and removing any Defect and the
cost of replacement thereof,including any resulting damage to surrounding
Work and/or adjacent property,equipment and facilities,as shall be necessary
to cause the Work and the Project to conform to the Project Warranties or
Materials Warranty.Within five (5)days after receipt by Contractor of a
Notice from Owner specifying a failure of any of the Work to satisfy
Contractor's Project Warranties or the Materials Warranty and requesting
Contractor to correct the Defect,Contractor and Owner shall mutually agree
O when and how Contractor shall remedy said Defect.If Contractor does not
use commercially reasonable efforts to proceed to complete said remedy
within the time agreed to,or should Contractor and Owner fail to reach such
an agreement within such five (5)day period,Owner shall have the right to
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perform the necessary remedy,or have third parties perform the necessary
remedy,in accordance with the Warranty Procedures;provided,however,that
the failure to comply with such Warranty Procedures shall not void the Project
Warranties or the Materials Warranty,and the costs as established pursuant to
the Warranty Procedures shall be borne by Contractor.
(b)Notwithstanding the foregoing,Contractor shall have the right to request
Owner to perform all or any portion of Contractor's obligations with respect
to any warranty claim,and,if Owner determines that it has the capability and
expertise to perform such obligations,Owner shall perform such obligations
and all costs incurred thereby shall be for Contractor's account in accordance
with the Warranty Procedures;provided,however,that the failure to comply
with such Warranty Procedures shall not void the Project Warranties or the
Materials Warranty.
18.8 Additional Warranty Procedures.Where Owner determines that an immediate need
exists,Owner may undertake immediate corrective action,including contacting the
applicable Vendor directly to seek assistance.An "immediate need"is a situation when
there is:(a)a threat of imminent harm to persons or property;(b)a situation that in
Owner's reasonable determination could materially adversely impact the operation of theOProjectortheTransmissionGrid;or (c)an electric line outage,generation project outage
or customer outage that in Owner's reasonable determination requires immediate action.
Where Owner does not take corrective action under this Section 18.8,Owner shall notify
Contractor in accordance with Section 18.7 of the Contract and provide documents as
provided below.Within two (2)days after receipt of said documents,Contractor and
Owner shall confer with regard to the appropriate procedures to utilize in correcting the
Defect and shall within a reasonable period thereafter (not to exceed thirty (30)days)
mutuallyagree when and how Contractor shall remedy said Defect.If Contractor does
not use its reasonable efforts to proceed to complete said remedy within the time agreed
to,or should Contractor and Owner fail to reach such an agreement within such thirty
(30)day period,Owner shall have the right to perform the necessary remedy,or have
others perform the necessary remedy,in accordance with the Warranty Procedures;
provided,however,that the failure to comply with such Warranty Procedures shall not
void the Project Warranties or the Materials Warranty,and the costs reasonably incurred
shall be borne by Contractor.
The following procedures ("Warranty Procedures")shall be observed in all Contractor
warranty claims for the Project in connection with which Owner has independently taken
corrective action as set forth above with respect to an "immediate need":
(a)Owner shall promptly provide telephonic notice to Contractor's designated
warranty representative of any failure of the Work to satisfy either the
Project Warranty or the Materials Warranty;
(b)A failure report,which shall contain technical and logistical information
sufficiently detailed to enable Contractor to assess the damage of the
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Work and to evaluate appropriate corrective action shall be provided by
Owner within a reasonable period of time after the occurrence of any
event giving rise to a warranty claim;
(c)Warranty claims shall be submitted in accordance with paragraph (d)
below,and shall include,as a required minimum,the following
documents:
(i)Applicable failure report;
(ii)List of equipment and materials purchased or used in accomplishing
the repair,schedule of operations,and subcontractors hours applicable
to each claim,and a copy of any internal work orders or purchase
orders prepared in connection with each such claim;
(iii)Owner's maintenance and repair records with respect to the
Equipment for which the claim is being made,including the
manufacturer/vendor part number and serial number and the
identification by part number and serial number of the next major
assembly call out;and
(iv)Copies of invoices received or prepared for costs and expenses
claimed.
(d)All warranty claims pertaining to failure of the Equipment for which
Owner has independently undertaken corrective action pursuant to this
Section 18.8 during any calendar month shall be submitted to Contractor
on or before the last day of the following calendar month.Claims shall be
paid by Contractor on a net 21 day basis.Work performed by Owner
under a warranty claim shall be billed on a time and materials basis as
further defined below in paragraph (d).Any warranty claim submitted by
Owner that is not disputed by Contractor within ninety (90)days shall be
deemed to have been accepted by Contractor.
(e)"Time and Material"in connection with a warranty claim is defined as
follows:
(i)With respect to "Time,"the product of 115%of the normal hourly
wage (including fringe benefits,insurance and taxes)Owner pays with
respect to its particular employee (not including overhead)multiplied
times the number of hours each employee performed the particular
work.
(ii)With respect to "Material,"l15%of the actual purchase price paid by
Owner or an Affiliate to a third party for the materials incorporated or
consumed in connection with the Work;and
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(iii)With respect to Work performed by a subcontractor (other than an
entity which is an Affiliate of Owner,Work performed by any such
entity being deemed Work performed by Owner through its own
employees for purposes of this defmition),115%of the actual amount
paid by Owner to the subcontractor for such Work.
(f)Owner shall maintain adequate records to support all warranty claims and
allow Contractor access to such records upon not less than ten (10)days'
notice.
18.9 Limitations On Warranties.This Article provides the exclusive remedies for all claims
based on a failure or Defect in the Work,whether the failure or Defect arises before or
during the applicable warranty period and whether a claim,however described,is based on
contract,warranty,indemnity,tort/extracontractual liability (including negligence),strict
liability or otherwise.The warranties provided in this Article are exclusive and are in lieu of
all other warranties and guarantees whether written,oral,implied or statutory EXCEPT
FOR THE EXPRESS WARRANTIES AND REPRESENTATIONS SET FORTH IN
THIS CONTRACT,CONTRACTOR DOES NOT MAKE ANY OTHER EXPRESS
WARRANTIES OR REPRESENTATIONS,OR ANY IMPLIED WARRANTIES OR
REPRESENTATIONS,OF ANY KIND WHATEVER RELATING TO THISOCONTRACT,THE WORK,OR DESIGN,EQUIPMENT,OR MATERIALS TO BE
SUPPLIED BY CONTRACTOR UNDER THIS CONTRACT OR TO THE PROJECT,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY.
19.EQUIPMENTIMPORTATION;TITLE
19.1 Importation of Equipment.Contractor,at its own cost and expense,shall make all
arrangements,includingthe processing of all documentation,necessary to import into the
United States Equipment to be incorporated into the Project and any other equipment and
other items necessary to perform the Work and shall coordinate with the applicable
Governmental Authorities in achieving clearance of United States customs for all such
Equipment and other items and,to the extent available under United States law but
without limiting Contractor's liability for any and all import duties,Taxes and levies as
specified in Section 6.2 and Section 6.3,achieving such importation duty-free and tax-
free.In no event shall Owner be responsible for any delays in customs clearance or any
resulting delays in performance of the Work.Such delays in customs clearance shall not
be considered an event of Force Majeure,unless such delay is itself caused by a Force
Majeure event.
19.2 Title.
O 19.2.1 Contractor warrants good title,free and clear of all liens,claims,charges,
security interests,and encumbrances whatsoever,to all Equipment and other
items furnished by it or any of its Subcontractors that become part of the Project
or that are to be used for the operation,maintenance,or repair thereof.
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19.2.2 Title to all Equipment and other items shall pass to Owner,free and clear
of all liens,claims,charges,security interests,and encumbrances whatsoever,
upon the earlier of payment in full therefor or incorporation into the Project or
delivery to the Site,a Contractor Yard Site,or any laydown area or storage area
used primarily in connection with the Work.
19.2.3 The transfer of title shall in no way affect Owner's rights as set forth in
any other provision of this Contract.Contractor shall have care,custody,and
control of all Equipment and other items (including Equipment and other items
imported into the United States)and exercise due care with respect thereto
consistent with Section 24.1.
19.3 Protection.For the purpose of protecting Owner's interest in all Equipment and
other items with respect to which title has passed to Owner pursuant to Section 19.2 but
that remain in possession of another Person,Contractor shall take or cause to be taken all
steps necessary under Applicable Laws to protect Owner's title and to protect Owner
against claims by other Persons with respect thereto.
O
20.DEFAULT
20.1 Contractor Events of Default.Contractor shall be immediately in default of its
obligations pursuant to this Contract upon the occurrence of any one or more events of
default below (each,a "Contractor Event of Default"):
(a)Contractor or Parent Guarantor becomes insolvent,generally does not pay its
debts as they become due,admits in writing its inability to pay its debts,or
makes an assignment for the benefit of creditors,or insolvency,receivership,
reorganization,or bankruptcy proceedings are commenced by Contractor or
Parent Guarantor (as applicable);
(b)Insolvency,receivership,reorganization,or bankruptcy proceedings are
commenced against Contractor or Parent Guarantor and such proceedings
shall remain undismissed or unstayed for a period thirty (30)days;
(c)Any representation or warranty made by Contractor herein was false or
materially misleading when made and Contractor fails to remedy such false or
O misleading representation or warranty,and to make Owner whole for any
consequences thereof,within thirty (30)days after Contractor receives a
Notice from Owner with respect thereto;
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(d)Contractor assigns or transfers (or attempts to so assign or transfer)this
Contract or any right or interest herein,except as expressly permitted under
Article 30;
(e)Contractor fails to maintain any insurance coverages required of it in
accordance with Article 23;
(f)Contractor fails to perform or observe in any respect any provision of this
Contract providing for the payment of an undisputed amount of money to
Owner and such failure continues for ten (10)days after Contractor receives
Notice from Owner with respect thereto;
(g)Following approval of a Schedule Recovery Plan pursuant to Section 8.3,
Contractor's unexcused failure to meet the schedule set forth in the Schedule
Recovery Plan (as determined from the revised Critical Path Method Schedule
established by the Schedule Recovery Plan);
(h)Contractor is otherwise in breach of any material provision of this Contract,or
has otherwise failed in a material respect to perform its obligations under this
O Contract (not otherwise addressed in this Section 20.1)and such breach or
failure continues for thirty (30)days after Contractor receives Notice from
Owner;provided,however,that if in Owner's determination such default or
failure is not capable of cure within a thirty (30)day period and within a
fifteen (15)day period after receipt of such Notice from Owner and
Contractor commences and diligently proceeds to cure such default or failure,
then such default or failure shall not constitute a Contractor Event of Default
unless it remains uncured ninety (90)days from the date of the original Notice
from Owner;
(i)The Project Mechanical Completion Date with respect to the Project has not
occurred on or before a date that is sixty (60)days after the Project
Mechanical Completion Guaranteed Date;or the Substantial Completion Date
with respect to the Project has not occurred on or before a date that is thirty
(30)days after the Substantial Completion Guaranteed Date;or the Final
Completion Date has not occurred on or before a date that is sixty (60)days
after the Final Completion Guaranteed Date;or
(j)Contractor has incurred the Maximum Aggregate LiquidatedDamages;or
(k)Contractor suspends or abandons the Work."Suspend"for the purposes of
this Section 20.1(k)means that Contractor has not accomplished any progress
toward any of the Critical Path Items for a period of thirty (30)or more days
O and such suspension is not otherwise permitted under this Contract.
"Abandon"for the purposes of this Section 20.l(k)means that Contractor has
substantially reduced personnel at the Site or removed further required
equipment from the Site such that,in the opinion of an experienced
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construction manager,Contractor would not be capable of maintaining
progress in accordance with the Critical Path Method Schedule.
20.2 Owner's Rights and Remedies.In the event of a Contractor Event of Default,
Owner or its assignees shall have the following rights and remedies,in addition to any
other rights and remedies that may be available to Owner or its assignees under this
Contract and Applicable Laws,and Contractor shall have the following obligations:
(a)Owner may,without prejudice to any of its other rights or remedies,terminate
this Contract;
(b)Owner may,without prejudice to any of its other rights or remedies,seek
performance by any guarantor of Contractor's obligations hereunder or draw
upon any applicable Letter of Credit provided in accordance with this
Contract;
(c)If requested by Owner,Contractor shall withdraw from the Site,shall assign
to Owner such of Contractor's subcontracts and purchase orders that are not
subject to Contractor's assignment under Section 10.3 and to the extent
O assignable,and Contractor Acquired Permits as Owner may request.If
requested by Owner,Contractor shall deliver and make availableto Owner all
information,documents,patents,and licenses of Contractor related to the
Work reasonably necessary to permit Owner to complete or cause the
completion of the Work,and in connection therewith Contractor authorizes
Owner and its agents to use such information in completing the Work.If
requested by Owner,Contractor shall remove such materials,equipment,
tools,and instruments used by and any debris or waste materials generated by
Contractor in the performance of the Work as Owner may direct,and Owner
may take possession of any or all Drawings and Specifications,Required
Manuals,and Site facilities,related to the Work and necessary for completion
of the Work (whether or not such Drawings and Specifications,Required
Manuals,and Site facilities are complete);
(d)Owner shall have the right (either with or without the use of Contractor's
equipment)to have the Work finished whether by enforcing any security
given by or for the benefit of Contractor for its performance under this
Contract or otherwise,in which case Owner shall have the right to take
possession of and use all construction equipment of Contractor necessary for
completion of the Work,and Contractor shall have no right to remove such
items from the Site until such completion;provided,however,Owner shall be
responsible for any loss or damage incurred (normal wear and tear excluded)
as a result of such use;
(e)Owner may seek equitable relief to cause Contractor to take action or to
refrain from taking action pursuant to this Contract or to make restitution of
amounts improperly received under this Contract;or
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(f)Owner may seek damages as provided in Section 20.3,including proceeding
against any bond,guarantee,Letter of Credit,or other security given by or for
the benefit of Contractor for its performance under this Contract.
20.3 Damages for Contractor Default.
(a)In the event of a Contractor Event of Default,but in such case subject to the
limitations of Article 35,Contractor shall be liable to Owner for any and all
actual damages (and also the damages payable in accordance with
subparagraph (b)below)to Owner as a result of such Contractor Event of
Default,it being understood that,to the extent that the actual costs of
completing the Work,including compensation for obtaining a replacement
contractor or for obtaining additional professional services required as a
consequence of Contractor's Event of Default,exceed those costs that would
have been payable to Contractor but for Contractor's Event of Default,
Contractor shall be obligated to pay the difference to Owner.In addition,in
the event of a Contractor Event of Default,Owner shall be entitled to
withhold further payments to Contractor for the Work performed prior to
termination of this Contract until Owner determines the liability of
O Contractor,if any,under this Section 20.3.Upon determination of the total
cost of the Work,Owner shall give Notice to Contractor of the amount,if any,
that Contractor shall pay Owner or Owner shall pay Contractor.Such
payment hereunder shall be made within twenty-one (21)days after receipt of
such Notice accompanied by reasonably satisfactory documentation
substantiating the amounts payable.
(b)In addition,if,in the event of a Contractor Event of Default set forth in
clauses (g),(i)or (k)of Section 20.1,Owner elects to terminate this Contract
pursuant to Section 20.2(a)above,then Contractor shall immediately pay to
Owner the Maximum Aggregate Liquidated Damages as liquidated damages
for such Contractor Event of Default and for Contractor's failure to proceed
with or make adequate progress towards the completion of the Work as
required by this Contract.Owner and Contractor agree that Owner's actual
damages in the event of any Contractor Event of Default set forth in clauses
(g),(i)or (k)of Section 20.1 would be extremely difficult or impracticable to
determine and that,after negotiation,Owner and Contractor have agreed that
the Delay Liquidated Damages and/or Maximum Aggregate Liquidated
Damages required to be paid hereunder are a reasonable estimate of the
damages that Owner would incur as a result of such a Contractor Event of
Default.
(c)If it is determined for any reason that Contractor was not in default or that its
O default was excusable or that Owner was not entitled to the remedy against
Contractor provided above,the terminationwill be deemed to be a termination
for convenience/early terminationpursuant to Article 21.
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20.4 Owner Event of Default.Owner shall be in default of its obligations pursuant to this
Contract in the event Owner fails to perform or observe in any respect any provision of
this Contract providing for the payment of an undisputed amount of money to Contractor,
and such failure continues for ten (10)Business Days after Owner receives a Notice from
Contractor with respect thereto ("Owner Event of Default").
20.5 Contractor's Remedies.In the event of an Owner Event of Default,and subject to
Article 35,Contractor shall have all rights and remedies that may be available under
Applicable Laws against Owner with respect to this Contract,including the right to
suspend performance of the Work or to terminate this Contract (and including the right to
immediately stop work upon an Owner Event Of Default for non-payment).
21.EARLY TERMINATION
21.1 General.Owner may in its sole discretion terminate all or part of the Work with or
without cause at any time by giving Notice of termination to Contractor,to be effective
upon the receipt of such Notice by Contractor or upon such other termination date
specifically identified by Owner therein.If Owner terminates the Work without cause or
for any cause other than a Contractor Event of Default specified in Section 20.1 or if the
circumstances described in the last paragraph of Section 20.3 apply,then Contractor shallOreceiveascompensationfortheWorkperformedthroughtheeffectivedateof
termination:
(a)The sum,without duplication,of:(i)the aggregate amount set forth on the
Project Payment Schedule for completion of items of Work that have been
properly completed by Contractor,in accordance with this Contract;(ii)for
each item of Work properly commenced but not yet completed by Contractor
in accordance with this Contract,a percentage of the aggregate amount set
forth on the Progress Payment Schedule for completion of such item based on
the percentage of completion of such item;and (iii)reasonable demobilization
costs;provided,however that the sum shall not exceed the amount set forth on
the Cancellation Schedule corresponding to the month in which such
termination occurs;minus
(b)Any amounts previously paid to Contractor under this Contract,in respect of
the Contract Price.
21.1.1 Adjustment for Defects.Notwithstandingthe foregoing,the amount owed
pursuant to Section 21.1 shall be subject to adjustment to the extent any Work
contains Defects or to the extent of any overpayments by Owner and provided,
further,that Contractor shall use its reasonable efforts to minimize costs that arise
between the date of its receipt of a Notice of termination and the effective date
thereof,including by promptly notifying its Subcontractors of such termination.
21.1.2 Assumption of Contractor Contracts.Owner shall have the right,at its sole
option,to assume and become liable for any reasonable obligations that
Contractor may have in good faith incurred for its Site personnel and for any
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reasonable written obligations and commitments that Contractor may have in
good faith undertaken with third parties in connection with the Work to be
performed at the Site,which obligations and commitments shall not have been
covered by the payments made to Contractor under Section 21.1.If Owner elects
to assume any obligation of Contractor as described in this Section 21.1.2,then,
as a condition precedent to Owner's compliance with any subsection of this
Article 21,Contractor shall execute all papers and take all other reasonable steps
requested by Owner which may be required to vest in Owner all rights,set-offs,
benefits and titles necessary to such assumption by Owner of such obligations
described in this Article 21.Owner shall simultaneously provide to Contractor
indemnities against liabilities thereafter arising under the assumed obligations or
commitments.
21.2 Claims for Payment.All claims for payment by Contractor under this Article 21
must be made within forty-five (45)days after the effective date of a termination
hereunder.Owner shall make payments under this Article 21 in accordance with
Article 7.
21.3 Termination Payments.The payments described in Section 21.1 include payment
for all costs of Equipment,temporary equipment,materials,labor,transportation,O engineering,design and other services relating to Contractor's performance of its
obligations under this Contract (including any intellectual property rights licensed under
this Contract,expressly or by implication)provided by Contractor.In addition to the
payments described in Section 21.1,Owner shall pay Contractor for:(a)all Taxes on the
Work (but not taxes based on Contractor's income or revenues);and (b)all other duties,
levies,imposts,fees,or charges of any kind (whether in the United States or elsewhere)
arising out of Contractor's or any such Subcontractor's performance of the Work,and
(iii)any duties,levies,imposts,fees,charges,and royalties imposed on Contractor or its
Subcontractors with respect to any such Equipment,materials,labor,or services provided
under this Contract.Except as otherwise provided in Section 6.3,the above-described
payments shall not be increased with respect to any of the foregoing or with respect to
any withholdings in respect of any of the foregoing items that Owner may be required to
make.
22.SUSPENSION
22.1 General.If at any time Owner,in its sole discretion,elects to suspend performance
of the Work,Owner may suspend performance of the Work by giving Notice to
Contractor.Such suspension shall commence and continue for the period specified in the
suspension Notice.The Contract Price shall be adjusted as provided in clauses (a),(b),
(c)and (d)of Section 22.2 to reflect any additional increasedcosts of Contractor resulting
from any such suspension,as demonstrated by Contractor to Owner's reasonable
satisfaction.No adjustment shall be made to the extent that performance is suspended,
O delayed,or interrupted for any cause due to Contractor's negligence,willful misconduct,
or noncompliance with the terms of this Contract.At any time after the effective date of
the suspension,Owner may require Contractor to commence to resume performance of
the Work upon five (5)Business Days'Notice.
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22.2 Contractor's Termination and Compensation Rights If,at the end of the specified
suspension period,Owner has not requested a resumption of the Work or has not notified
Contractor of any extension of the suspension period (but in no event beyond three
hundred sixty-five (365)days in the aggregate for all such suspensions,other than
suspensions for any reason due to Contractor's negligence,willful misconduct,or
noncompliance with the terms of this Contract)Contractor may terminate this Contract.
Owner shall promptly pay Contractor for the Work performed pursuant to Section 21.l.
In addition,in the event of any such suspension,Owner shall pay Contractor within thirty
(30)days after receipt of Contractor's Invoice for those reasonable costs incurred during
the suspension period that are documented by Contractor to the reasonable satisfaction of
Owner,to the extent attributable to the suspension,and that are:
(a)For the purpose of safeguarding and/or storing the Work and the materials and
Equipment at the point of fabrication,in transit,or at the Site;
(b)For personnel,Subcontractors or rented equipment,the payments for which,
with Owner's prior written concurrence,are continued during the suspension
period;
(c)For costs of demobilization and remobilization as approved by Owner;or
(d)For rescheduling the Work (including penalties or additional payments to
Subcontractors for the same).
22.3 Extension of Time.In the event of any suspension under this Article 22.other than
from a cause due to Contractor's negligence,willful misconduct,or noncompliance with
the terms of this Contract,the Project Guaranteed Dates shall be extended by a period
equal to the suspension period,plus a reasonable period for demobilization and
remobilization approved by Owner,and,provided that the Owner was notified of and
approved suspension of long lead time Equipment orders,for any delays due to such
suspension of long lead time Equipment for which the procurement schedule has been
adversely affected,and the Critical Path Method Schedule and the Progress Payment
Schedule shall be adjusted to account for same.
22.4 Claims for Payment.All claims by Contractor for compensation or extension of
time under this Article 22 must be made within sixty (60)days after the suspension
period has ended and the Work has been either terminated or resumed.Failure of
Contractor to make such claim within said period shall be deemed a waiver by Contractor
of any such claims.
23.INSURANCE
23.1.General.
23.1.1 Contractor's Insurance.Contractor,at its own expense,shall procure or
cause to be procured and maintain or cause to be maintained in full force and
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effect at all times,commencing no later than upon commencement of the Work at
the Site and until expiration of the Warranty Periods,all insurance coverages
specified in Exhibit "Q-1"(except that the ocean marine cargo coverage and,to
the extent applicable,construction all risk insurance coverage need only be
maintained in full force and effect until the Substantial Completion Date).All
insurance coverage shall be in accordance with the terms of this Article 23 and
Exhibit "Q-l"and Exhibit "Q-3"using companies,to the extent required by
Applicable Laws,authorized to do business in .
23.1.2 Owner's Insurance.Owner,at its own expense,shall procure or cause to
be procured and maintain or cause to be maintained in full force and effect at all
times,commencing no later than upon commencement of the Work at the Site and
until the Substantial Completion,all insurance coverages specified in Exhibit "Q-
T (except that,to the extent applicable,construction all risk insurance coverage
need only be maintained in full force and effect until the Substantial Completion
Date).All insurance coverages shall be in accordance with this Article 23 and
Exhibit "Q-2"and Exhibit "Q-3"using companies,to the extent required by
Applicable Laws,authorized to do business in
23.1.3 Non-Violation.Contractor shall not violate nor permit to be violated any
O conditions of the policies provided by Owner under the terms of this Contract and
shall at all times satisfy the requirements of the insurance companies issuing
them.All requirements imposed by such policies and to be performed by
Contractor shall likewise be imposed upon and assumed by each Subcontractor.
23.2 Subrogation Waivers.All policies (except Professional Liability and Aircraft
Liability)shall provide for a waiver of subrogation rights against Owner,Owner's
Affiliates,Contractor,and their respective assigns,subsidiaries,Affiliates,directors,
officers,employees,insurers,and underwriters,and of any right of the insurers to any set-
off or counterclaim or any other deduction,whether by attachment or otherwise,in
respect of any liability of any such Person insured under any such policy.Builders all
risk insurance will not waive subrogation rights against manufacturers,suppliers,
Subcontractors or Vendors for loss or damage caused by faulty design or workmanship in
manufacturing of Equipment.Contractor releases,assigns,and waives any and all rights
of recovery against the Owner,and Owner's Affiliates,subsidiaries,employees,
successors,permitted assigns,insurers,and underwriters that Contractor may otherwise
have or acquire in or from or in any way connected with any loss covered by policies of
insurance maintained or required to be maintained by Contractor pursuant to this Contract
or because of deductible clauses in or inadequacy of limits of any such policies of
insurance.
23.3 Evidence of Insurance.Evidence of insurance required hereunder,in the form
required to be delivered by a Party,but in any event in the form of certificates of
O insurance certified by such Party's insurance brokers,shall be furnished by each Party
when required to be delivered no later than the date on which coverage is required to be
in effect pursuant to Exhibit "Q-1",Exhibit "Q-2"and Exhibit "Q-3"as applicable.If
applicable,a copy of the "Builders All Risk"insurance policy required to be provided in
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accordance with Exhibit "Q-l"shall be provided to the Owner for its review and
approval (which approval shall not be unreasonably withheld)prior to any construction-
related Work being performed at the Site or the delivery of any Equipment to the Site.If
requested by Owner,copies of the other insurance policies shall be promptly provided by
Contractor to Owner after the coverage date,excluding any premium information.
Contractor's automobile liability,commercial general liability and excess liability
policies shall provide a severability of interests or cross-liability clause applying to such
liability policies;provided,however,that the insurance shall be primary and not excess to
or contributing with any insurance or self-insurance maintained by Owner and contain a
provision that the policies may not be canceled or changed except:(a)as provided in
Exhibit "Q-l",Exhibit "Q-2"and Exhibit "Q-3"as applicable;or (b)if not therein
provided,without thirty (30)days'or,in the case of nonpayment of premium,ten (10)
days'prior written Notice given by certified mail to Owner and Contractor.Not later
than the one-year anniversary of the date of delivery of the policies of insurance
hereunder or the expirationdate of the policy if for a term of more than one year,and not
later than each one-year anniversary or policy renewal date thereafter,each Party shall
deliver copies of the renewal insurance certificates as aforesaid.
23.4 Insurance Coverages.All amounts of insurance coverage under this Contract
specified in Exhibit "Q-l",Exhibit "Q-2"and Exhibit "Q-3"are required minimums.
O Owner and Contractor shall each be solely responsible for determining the appropriate
amount of insurance,if any,in excess thereof.The required minimum amounts of
insurance shall not operate as limits on recoveries available under this Contract.
23.5 Failure to Maintain Insurance.If at any time the insurance to be provided by Owner
or Contractor hereunder shall be reduced or cease to be maintained,then (without
limiting the rights of the other Party hereunder in respect of any default that arises as a
result of such failure)the other Party may at its option maintain the insurance required
hereby,and,in such event:(a)Owner may withhold the cost of insurance premiums
expended for such replacement insurance from any payments to Contractor;or (b)Owner
shall reimburse Contractor for the premium of any such replacement insurance,as
applicable.
23.6 Scope of Coverage.Contractor shall require such automobile liability,commercial
general liability,excess liability insurance and workers'compensation/employer's
liability insurance of Subcontractors who perform services at the Site as shall be
reasonable and in accordance with Industry Standards in relation to the Work or other
items being provided by each such Subcontractor.Each Subcontractor shall provide
evidence of its insurance to Owner prior to performing any Work at the Site.
24.RISK OF LOSS OR DAMAGE
24.1 Contractor Assumption of Risk.From the Effective Date until the Substantial
O Completion Date,Contractor assumes risk of loss and full responsibility for the cost of
replacing or repairing the damage to the Project (including any insurance deductible and
any uninsured losses)and all materials,Equipment,supplies and maintenance equipment
(including temporary materials,equipment and supplies)which are purchased by
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Contractor or Owner for permanent installation in or for use during construction of the
Project regardless of whether Owner has title thereto under this Contract,unless such loss
or damage is a result of the negligence or intentional misconduct of Owner or Owner's
agents during such time as such agents are acting under Owner's control,in which case
Owner shall be responsible for the amount of any deductible amounts under applicable
policies as identified in Exhibit "O-l".Owner shall bear the risk of loss and be
responsible for any damage with respect to the Project after the Substantial Completion
Date or Owner's existing structures,materials or equipment adjacent to or on the Site,
except in the event and to the extent such loss or damage is a result of:(a)the continuing
performance of the Work by the Contractor (including any Subcontractor);(b)the
negligence or intentional misconduct of Contractor or any Subcontractor (including any
of their employees or agents);or (c)a defect or other failure covered under any warranty
set forth herein or any other act,omission or event for which Contractor is legally liable
to Company under contract,law,or equity.
24.2 Loss or Damage;Limitations.If any portion of the Work is lost or damaged during
the period when Contractor has the risk of loss in accordance with Section 24.1,then
Contractor shall replace or repair any such loss or damage and complete the Work in
accordance with this Contract.Notwithstanding the foregoing,to the extent that OwnerOhasmaintainedconstructionallriskinsurancefortheProject,Contractor shall not be
obligated to replace or repair any such loss or damage unless:(a)Owner has properly
carried and maintained such insurance pursuant to Article 23 and Contractor has received
reasonable assurances from Owner that Owner will prosecute such claim in a
commercially reasonable manner and Contractor will receive the insurance proceeds,if
any,paid under such Owner maintained insurance coverages in accordance with the
disbursement provisions of this Contract;or (b)Owner agrees to pay for such
replacement or repair as requested by Owner in accordance with Section 17.2.Should a
loss be sustained under a third party liability policy,Contractor shall assume all
responsibilities of an insured under the terms of said insurance.
25.INDEMNIFICATION
25.1 By Owner.Except for matters expressly made Contractor's responsibility hereunder
or otherwise expressly limited as set forth in this Contract,Owner shall defend,
indemnify,and hold harmless Contractor and its Subcontractors,and all their respective
employees,Affiliates,agents,officers,partners and directors from and against all third
party claims,or Losses for bodily injury or property damage that arise out of or result
from the sole negligence of Owner.
25.2 By Contractor.Except for matters expressly made Owner's responsibility hereunder
and in addition to any other indemnification obligations of Contractor under this
Contract,Contractor shall defend,indemnify,and hold harmless Owner and any Person
O acting for or on behalf of Owner and their respective employees,agents,partners,
Affiliates,shareholders,directors,officers,and permitted assigns,from and against all
Losses that directly or indirectly:
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(a)Arise out of or result from the prosecution of the Work by Contractor (including
its Subcontractors)that arise out of or result from any acts or omissions
(including strict liability)of Contractor,its agents,servants,employees or by the
agents,servants or employees of any Subcontractors;
(b)Arise out of or result from the failure of Contractor or Subcontractors to
comply with Applicable Laws or the conditions or provisions of Applicable
Permits;
(c)Arise out of any insurance policy procured under Article 23 being vitiated as
a result of Contractor's failure to comply with any of the requirements set
forth in such policy or any other act by Contractor or any Subcontractor;
(d)Arise out of or result from Contractor's failure to comply with its obligations
under this Contract with respect to Hazardous Materials;or
(e)Arise from any other breach by Contractor of its representations,warranties
and obligations (including any other indemnification provision)under this
Contract.
25.3 Actions by Government Authorities.Contractor shall defend,indemnify,and hold
Owner and their respective employees,agents,partners,Affiliates,shareholders,
directors,officers,and assigns harmless from and against all claims by any Governmental
Authority claiming Taxes or other obligations that are Contractor's responsibility
pursuant to Section 6.2 and Section 6.3,including Taxes based on gross receipts or
income of Contractor,any of its Subcontractors,or any of their respective agents or
employees with respect to any payment for the Work made to or earned by Contractor,
any of its Subcontractors,or any of their respective agents or employees under this
Contract.
25.4 Notice;Defense;Settlement.An indemnitee under this Article 25 or any other
indemnification provision set forth in the Contract shall,within ten (10)Business Days
after the receipt of written notice of the commencement of any legal action or of any
claims against such indemnitee in respect of which indemnificationwill be sought,notify
the indemnitor with a written notice thereof.Failure of the indemnitee to give such
written notice will reduce the liability of the indemnitor by the amount of damages
attributable to the failure of the indemnitee to give such written notice to the indemnitor,
but the failure so to notify shall not relieve the indemnitor from any liability that it may
have to such indemnitee otherwise than under the indemnity agreements contained in this
Article 25.In case any such claim or legal action shall be made or brought against an
indemnitee and such indemnitee shall notify the indemnitor thereof,the indemnitor may,
or if so requested by such indemnitee shall,assume the defense thereof,without any
O reservation of rights.After written notice from the indemnitor to such indemnitee of an
election to assume the defense thereof and approval by the indemnitee of counsel selected
by the indemnitor,the indemnitor will not be liable to such indemnitee under this Article
L for any legal fees or expenses subsequently incurred by such indemnitee in connection
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with the defense thereof so long as the indemnitor continues to provide such defense.No
indemnitee shall settle any indemnified claim over which the indemnitor has not been
afforded the opportunityto assume the defense without the indemnitor's written approval.
The indemnitor shall control the settlement of all claims over which it has assumed the
defense;provided,however,that the indemnitor shall not conclude any settlement that
requires any action or forbearance from action by the indemnitee or any of its Affiliates
without the prior written approval of the indemnitee.The indemnitee shall provide
reasonable assistance to the indemnitor,at the indemnitor's expense,in connection with
such legal action or claim.If the indemnitor assumes the defense of any such claim or
legal action,any indemnitee shall have the right to employ separate counsel in such claim
or legal action and participate therein,and the reasonable fees and expenses of such
counsel shall be at the expense of such indemnitee,except that such fees and expenses
shall be for the account of the indemnitor if:(a)the employment of such counsel has
been specifically authorized by the indemnitor;or (b)the named parties to such action
(including any impleaded parties)include both such indemnitee and the indemnitor and
representation of such indemnitee and the indemnitor by the same counsel would,in the
reasonable opinion of the indemnitee,be inappropriate under applicable standards of
professional conduct due to actual or potential conflicting interests between them.
Notwithstanding anything to the contrary in this Section 25.4,the indemnitee shall have
the right,at its expense,to retain counsel to monitor and consult with indemnitor's
counsel in connection with any such legal action or claim.
26.PATENT INFRINGEMENT AND OTHER INDEMNIFICATION RIGHTS
26.1 Indemnity by Contractor.Contractor shall defend,indemnify,and hold harmless
Owner and its employees,partners,directors,officers and assigns against all Losses
arising from any claim or legal action for unauthorized disclosure or use of any trade
secrets,or of patent,copyright,or trademark infringement arising from Contractor's
performance (or that of its Affiliates or Subcontractors)under this Contract or otherwise
asserted against Owner that either:(a)concerns any Equipment,materials,supplies,or
other items provided by Contractor,any of its Affiliates,or any Subcontractor under this
Contract;(b)is based upon or arises out of the performance of the Work by Contractor,
any of its Affiliates,or any Subcontractor,including the use of any tools or other
implements of construction by Contractor,any of its Affiliates,or any Subcontractor;(c)
is based upon or arises out of the design or construction of any item by Contractor under
this Contract or the operation of any item according to directions embodied in
Contractor's final process design,or any revision thereof,prepared or approved by
Contractor;or (d)affects the Owner's ability to operate the Project.
26.2 Lawsuits.If such claim or legal action for such infringement results in a suit
against Owner the provisions of Section 25.4 shall apply.
26.3 Injunction.If Owner is enjoined from completion of the Project or any part
O thereof,or from the use,operation,or enjoyment of the Project or any part thereof,as a
result of such claim or legal action or any litigation based thereon,Contractor shall
promptly use its best efforts to have such injunction removed at no cost to Owner.If any
such claim,suit or proceeding,the Project or any part,combination or process thereof is
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alleged to or is held to constitute an infringement and its use is permanently enjoined,
Contractor shall at its own expense and without impairing performance requirements,(1)
procure for Owner the right to use the infringing Work,(2)if (1)is not commercially
feasible,modify the infringing Work or part,combination or process thereof so they
become non-infringing,or (3)if (1)and (2)are not commercially feasible,replace the
infringing Work or part,combination or process thereofwith non-infringing components
or parts,provided such modification or replacement shall not diminish or alter the
features of or the functionality of the Work.
26.4 Effect of Owner's Actions.Owner's acceptanceof the Contractor Deliverables or
proposed or supplied materials and Equipment shall not be construed to relieve
Contractor of any obligation hereunder.
27.CONFIDENTIAL INFORMATION;TITLE TO INTELLECTUAL PROPERTY
27.1.Confidential Information.
27.1.1 Any Confidential Information is disclosed in confidence,and the
transferee shall restrict its use of such information solely to uses related to the
Project or performance of this Contract.Neither the transferee nor any consultant
O or other Person to whom any confidential or proprietary information is provided
in connection with the Project or performance of this Contract shall publish or
otherwise disclose such information to others or use such information for any
purpose except as expressly provided above without the written approval of the
transferor;provided,however,that nothing herein shall limit:(a)the right of
Owner to provide any information regarding Contractor,any Subcontractor,this
Contract,or the Work to any financing entity (or advisors retained on their behalf)
or their successors and assigns or to any potential or actual successor in interest or
to a purchaser of a Party's assets to which this Contract relates (provided,
however,that such disclosures shall be subject to the agreement of such Persons
to keep such information confidential pursuant to the terms of this Section 27.1);
(b)the right of either Party to supply such information to any Governmental
Authority asserting a right to such information,or as may be required by
Applicable Laws;or (c)the right of Owner to disclose,reproduce and/or use as
many copies of any information or documents provided to Owner as Owner in its
sole discretion considers useful or necessary for the furtherance of the Work or in
connection with the operation,maintenance or repair of the Project,regardless of
any notices,legends,or disclaimers on such information or documents.
BES Cyber System Information.Confidential Information of Owner labeled as
BCSI shall be protected consistent with the following requirements:(a)BCSI
shall be protected at all times,either by appropriate storage or having it under the
personal observation and control of a person authorized to receive it;(b)each
O person who works with protected BCSI is personally responsible for taking proper
precautions to ensure that unauthorized persons do not gain access to it;(c)
reasonable steps shall be taken to minimize the risks of access to BCSI by
unauthorized personnel (when not in use,BCSI shall be secured in a secure
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container,such as a locked desk,file cabinet or facility where security is
provided);(d)documents or material containing BCSI may be reproduced to the
minimum extent necessary,consistent with the need to carry out the Work,
provided that the reproduced material is marked and protected in the same manner
as the original material;(e)material containing BCSI should be disposed of
through secured shredding receptacles or other secured document destruction
methods;(f)BCSI shall be transmitted only by the following means:(i)hand
delivery;(ii)United States first class,express,certified or registered mail,bonded
courier,or through secure electronic means;(iii)e-mail with encrypted file (such
as,WinZip with password)(the password should not be included in e-mail,but
should be delivered by phone or in an unrelated e-mail not mentioning the
document name;password-protected Microsoft Office documents do not meet the
encryption requirements);and (g)documents or material containing BCSI shall be
returned to Owner or certified destroyed upon completion of the Work.
27.1.2 Notwithstanding the designation of any information as proprietary by a
transferor,such information shall not be deemed proprietary or confidential if it:
(a)was furnished by such Party prior to the execution of this Contract without
restrictions;(b)becomes knowledge available within the public domain;(c)is
received by either Party from a third party without restriction and without breach
O of this Contract;or (d)is or becomes generally available to,or is independently
known to or has been or is developed by,either Party or any of its Affiliates other
than solely as a result of any disclosure of proprietary information by the
transferor to the transferee.
Title to the Confidential Information shall remain with the owner of such
Confidential Information.
27.2 Title to Contractor Deliverables.All Contractor Deliverables and other documents
to be furnished to Owner by Contractor or by any Subcontractor or Vendor and all
modifications made by Contractor to any documents obtained,developed or created
exclusively for the Project by or for Contractor shall be the property of Owner.
Notwithstanding the foregoing,to the extent Contractor furnishes standard Equipment
manuals or similar materials not created specifically in connection with the Work,Owner
shall obtain ownership only of the copies actually furnished and shall not hold the
copyright thereto.Contractor shall retain the ownership of intellectual property rights in
its standard drawing details,designs,specifications,databases,computer software and
any other proprietary property.
28.INVENTIONS AND LICENSES
Contractor agrees to grant and hereby grants to Owner an irrevocable,non-exclusive,
royalty-free license with respect to all Confidential Information,patents and other
O proprietary information of Contractor or any Subcontractor related to the Work now or
hereafter owned or controlled by Contractor or a Subcontractor to the extent reasonably
necessary for the operation,maintenance,repair,or alteration of the Project or any
subsystem or component thereofdesigned,specified,or constructed by Contractor under
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this Contract or in connection with any of Owner's electric transmission operations.No
other license in such Confidential Information,patents and proprietary information is
granted pursuant to this Contract.
29.ASSIGNMENT BY OWNER
Without the prior consent of Contractor,Owner may,upon Notice to Contractor,assign
all or part of its right,title,and interest in this Contract and/or the Work to any Affiliate.
In addition,without the prior consent of Contractor,Owner may,upon Notice to
Contractor,assign all or part of its right,title,and interest in this Contract and/or Work to
any Person that acquires the part of the Transmission Grid to which the Project is a part,
whether by sale,merger or other means of transfer.Owner may assign all or part of its
right,title,and interest in this Contract to any other Person with the prior written
approval of Contractor,which approval shall not be unreasonably withheld or delayed;
and upon such assignment the Owner shall be relieved of all of its obligations hereunder.
30.ASSIGNMENT BY CONTRACTOR
Contractor understands that this Contract is personal to Contractor.Contractor shall have
no right,power,or authority to assign or delegate this Contract or any portion thereof,
O either voluntarily or involuntarily,or by operation of law.Contractor's attempted
assignment or delegation of any of its work hereunder shall be null and void and shall be
ineffectiveto relieve Contractor of its responsibility for the Work assigned or delegated.
31.INDEPENDENT CONTRACTOR
31.1 General.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,or as creating any relationship whatsoever between Owner
and Contractor's employees.Neither Contractor nor any of its employees is or shall be
deemed to be an employee of Owner.
31.2 Employees.Subject to Section 4.5,Section 4.16 and Section 10.1,Contractor has
sole authority and responsibility to employ,discharge,and otherwise control its
employees and Subcontractors.
32.NON-PAYMENT CLAIMS
Contractor shall provide Owner,upon Owner's request,copies of any preliminary notices
filed with Governmental Authorities and any other similar notices received from any of
its Subcontractors related to Work or the Project.If requested by Owner,Contractor shall
promptly file a "notice of completion"or similar document with the appropriate
Governmental Authority as allowed by Applicable Law.
Contractor shall indemnify and hold harmless Owner and Affiliates (collectively,the
"Lien Indemnitees")and defend each of them from and against any and all Losses arising
out of any and all claims for payment,whether or not reduced to a lien or mechanic's
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lien,filed by Contractor (except as permitted pursuant to the final sentence of this Article
2)or any Subcontractor,or other Persons performing any portion of the Work,including
reasonable attorneys'fees and expenses incurred by any Lien Indemnitee in discharging
any such liens or similar encumbrances.If Contractor shall fail to discharge,bond
around or otherwise dispatch in a manner reasonably satisfactory to Owner promptly any
such lien or claim filed against the Project or any interest therein,upon any materials,
Equipment,or structures encompassed therein,or upon the Site and/or premises upon
which they are located,any Lien Indemnitee may so notify Contractor in writing,and
Contractor shall then:(a)satisfy all such liens and claims;or (b)defend Lien
Indemnitees against all such liens or claims and provide assurances of payment as
described in the second to last sentence of this Article 32.If Contractor does not
promptly satisfy such liens or claims,give such Lien Indemnitee reasons in writing that
are satisfactory to such Lien Indemnitee for not causing the release of such liens or
paying such claims,or contest such liens or claims in accordance with the provisions of
the second to last sentence of this Article 32,any Lien Indemnitee shall have the right,at
O its option,after written notification to Contractor,to cause the release of,pay,or settle
such liens or claims,and Owner at its sole option may (i)require Contractor to pay,
within five (5)days after request by Owner;or (ii)offset against any retainage or other
amounts due or to become due to Contractor (in which case Owner shall,if it is not the
applicable Lien Indemnitee,pay such amounts directly to the Lien Indemnitee causing
the release,payment,or settlement of such liens or claims)all costs and expenses
incurred by the Lien Indemnitee in causing the release of,paying,or settling such liens or
claims,including administrative costs,attorneys'fees,and other expenses.Contractor
shall have the right to contest any such lien,provided it first provides to Owner a bond or
other assurances of payment reasonably satisfactory to Owner in the amount of such lien
and in form and substance reasonably satisfactory to Owner.Notwithstanding any
provision of this Contract to the contrary,nothing herein shall affect Contractor's right to
file or otherwise place a lien on the Project,Site,and/or Work (including a mechanic's
lien)as a result of the non-payment by Owner of any undisputed amount owed to
Contractor hereunder.
33.NOTICES AND COMMUNICATIONS
33.1 Requirements.Any Notice pursuant to the terms and conditions of this Contract
shall be in writing and:(a)delivered personally,(b)sent by certified mail,return receipt
requested,or (c)sent by a recognized overnight mail or courier service,with delivery
receipt requested,to the followingaddresses:
O
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If to Contractor:Telephone:
Attention:
With a copy to:
Attention:
Telephone:
If to Owner:
With a copy to:
33.2 Effective Time.Notices shall be effective when received by the other Party.
33.3 Representatives.Any technical or other communications pertaining to the Work
shall be with the Parties'designated representative.Each Party shall give Notice to the
other of the names of such representatives.The Project Manager and the Project
Representative shall each have knowledge of the Work and be available at all reasonable
times for consultation.Each Party's representative shall be authorized on behalf of such
Party to administer this Contract,agree upon procedures for coordinating the efforts of
Owner and Contractor,and,when appropriate,to furnish information to or receive
information from the other Party in matters concerning the Work.
34.INTENTIONALLY OMITTED
35.LIMITATIONS OF LIABILITY AND REMEDIES
35.1 Limitations on Damages.Except for the Delay Liquidated Damages payable under
Article 16,and the Maximum Aggregate Liquidated Damages payable under Section
B,and each Party's respective indemnity obligations for third party Losses under
Article 25,Article 26,and any other provision in this Contract imposing indemnification
obligations ,and notwithstanding anything else in this Contract to the contrary,neither
Party nor its Affiliates shall be liable to the other for any indirect,punitive,consequential
or special damages or lost profits,lost revenue or loss of use of the Project,or cost of
purchase or replacement power,whether foreseen or not,arising from a failure to perform
any obligation under this Contract,whether such liability arises in contract,tort
(including negligence or strict liability),statutory or otherwise.This Section 35.1 shall
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not be construed to limit recovery for any Losses under any indemnity in this Contract,
included Article 25 and Article 26.
35.2 Parent Guaranty and Letter of Credit.
(a)Parent Guaranty.All of Contractor's obligations under this Contract shall be
secured by the Parent Guaranty's.Contractor shall deliver the Parent
Guaranty's (duly executed by the party thereto)to Owner contemporaneously
with Contractor's execution of this Contract.
(b)Letters of Credit.
(1)Performance LOC.Contractor shall deliver such Performance LOC to
Owner within five (5)days after the Effective Date and such delivery shall be
a condition precedent to Owner's further obligations hereunder.The
Performance LOC shall terminate sixty (60)days after the Substantial
Completion Date,provided Contractor has delivered to Owner a Warranty
LOC in accordance with Section 35.2(b)(2).
(2)Warranty LOC.The Warranty LOC shall be provided to Owner on or
O prior to sixty (60)days after the Substantial Completion Date and Owner shall
not be entitled to draw under such Warranty LOC unless and until the
Performance LOC has been cancelled or terminated in accordance with
subpart (1)above.The Warranty LOC shall be cancelled on the date 60
months after the Substantial Completion Date.
(3)General Terms.The Contractor shall maintain each of the Performance
LOC,the Retainage LOC and the Warranty LOC in full force and effect at all
times as required hereunder.If,at any time,any Letter of Credit ceases to
satisfy the requirements set forth in this Contract,then the Contractor shall
upon four (4)Business Days Notice from Owner deliver a replacement Letter
of Credit that complies with the requirements of this Contract,unless Owner
has drawn any portion or the entire amount of the Letter of Credit pursuant to
Section 35.2(b).
(4)Draw Conditions.Owner shall be entitled to make a demand under a
Letter of Credit one or more times in amount(s)not to exceed the stated value
of the Letter of Credit.Owner may draw on a Letter of Credit,and may draw
multiple times,in amount(s)not to exceed the stated value of the Letter of
Credit in Owner's sole discretion,in accordance with the terms of each such
Letter of Credit.
(5)Improper Draws.Notwithstandingany other provision of this Contract,if
O Owner draws on a Letter of Credit in violation of the requirements of this
Contract,Owner shall reimburse the Contractor within two (2)Business Days
for such wrongfullydemanded payment or wrongfullyretained portion of a
payment properly demanded,plus interest at the Contract Rate,and,if the
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improperly drawn upon Letter of Credit is still outstanding or required to be
outstanding,the Contractor promptly shall cause such reimbursed amount to
be again available for demand thereunder.
(6)Return of Letters of Credit.If the Contractor delivers to Owner a
replacement for any Letter of Credit or (ii)the relevant Letter of Credit shall
have terminated in accordance with the terms of this Contract,then Owner
shall immediately return the relevant Letter of Credit then in Owner's
possession to the issuing bank or Contractor for cancellation.
(7)Transfer by Owner of Letter of Credit.All bank administrative fees
associated with and imposed by the issuer of the Letter Credit in connection
with the transfer by Owner of a Letter of Credit shall be paid by the Owner.
(8)Failure to Renew or Maintain.Contractor shall be in breach of this
Contract if Contractor has not renewed or replaced a Letter of Credit required
to be providedhereunder no later than twenty-one (21)days prior to the stated
expiration date for,or required renewal or replacement date of,such Letter of
Credit;and upon Contractor's failure to so renew or replace the Owner shall
have the right to draw down the entire amount of such Letter of Credit.O (c)Contractor shall be in breach of this Contract if Contractor has not provided
and maintained any Parent Guaranty or Letter of Credit as required by this
Contract and upon Contractor's failure to so provide and maintain in
accordance with the terms of this Contract,Owner shall have the right to draw
down the entire amount of the Letter of Credits.If after any such draw by
Owner,the Contractor provides a Letter of Credit satisfying the requirements
of this Contract,the Owner shall within ten (10 Business Days return all
previously unapplied proceeds to the Contractor.
35.3 Limitations on Contractor's Liability.
35.3.1 Aggregate Liability and Exclusions.In no event shall Contractor's liability
pursuant to this Contract,whether arising in contract,warranty,default or
otherwise,be greater in the aggregate than an amount equal to one hundred
percent (100%)of the Contract Price;provided,however,that nothing contained
in this Section 35.3 or in any other provision of this Contract shall be construed to
limit Contractor's liabilities for its obligations:(a)with respect to termination,
cancellation or non-renewal (or other loss of coverage)of any insurance policy as
set forth in Section 25.2(c)of the Contract;(b)with respect to any gross
negligence or willful misconduct or fraud on the part of Contractor;or (c)with
respect to any of Contractor's indemnity obligations under Article 25,Article 26,
and any other provision in this Contract imposing indemnification obligations.
Notwithstanding anything herein to the contrary,no:(i)liabilities of Contractor to
Owner paid for by insurance carried by Contractor pursuant to Article 23 of this
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Contract or by Owner (except deductibles paid by Contractor);or (ii)the cost of
warranty Work performed by any Subcontractor at such Subcontractor's expense
and the cost of any warranty Work paid for by any Subcontractor or recovered by
Contractor from any Subcontractor shall be included in Contractor's aggregate
liability for the purposes of determining the limit on Contractor's liability
pursuant to this Contract.
35.3.2 Maximum Delay Liquidated Damages Amounts.Notwithstanding any
other provisions in this Contract to the contrary,in no event shall Contractor's
aggregate liability under Section 16.1 for Delay Liquidated Damages exceed the
Maximum Aggregate LiquidatedDamages.
35.4 Limitation on Owner's Liability.In no event shall the aggregate damages payable
by Owner hereunder exceed the Contract Price (as the same may be modified by Changes
in Work in accordance with the terms of this Contract);provided,however,that nothing
contained in this Section 35.4 or in any other provision of this Contract shall be construed
to limit Owner's liabilities for its obligations with respect to any of Owner's indemnity
obligations for third party Losses under Article 25 and any other provision in this
Contract imposing indemnification obligations.Notwithstanding anything herein to the
O contrary,no liabilities of Owner to Contractor covered by insurance carried by Owner
pursuant to Article 23 of this Contract or by Contractor (except deductibles paid by
Owner)shall be included in Owner's aggregate liability for purposes of determining the
limit on Owner's liability pursuant to this Contract.
35.5 Releases,Indemnities and Limitations.Releases,indemnities,or limitations on
liability expressed in this Contract shall apply in accordance with the terms of this
Contract,notwithstanding other legal bases of responsibility such as negligence,strict
liability,fault,or breach of contract of the Party indemnified or whose liability is released
or limited.
36.DISPUTES
36.1 Negotiations.Any disputes arising pursuant to this Contract that cannot be
resolved between Owner's Project Representative and Contractor's Project Manager
within fourteen (14)days or,in the case of payment disputes,three (3)Business Days
after receipt by each thereof of Notice of such dispute (specifically referencing this
Section 36.1)shall be referred,by Notice signed by Owner's Project Representative and
Contractor's Project Manager,to the executive officers of the Parties designated in
Section 37.4 as their designated representatives (which shall not be the Owner's Project
Representative or the Contractor's Project Manager)for resolution.
If the Parties,negotiating in good faith,fail to reach an agreement within a reasonable
O period of time,not exceeding twenty (20)days or,in the case of payment disputes,ten
(10)days after such referral,then Owner or Contractor may institute proceedings as set
forth in Section 36.2.
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36.2 Dispute Resolution.If the Parties,negotiating in good faith,fail to reach an
agreement within the period of time set forth above in Section 36.1,then Owner and
Contractor agree that any and all disputes arising from,relating to or in connection with
the Contract,whether based on contract,tort or otherwise shall be submitted to the
jurisdiction of the federal or state courts located in Utah,to the exclusion of any and all
other courts,forums,venues,and the Parties waive any and all right to contest the
exclusivity of such forum,including any rights based upon the doctrine of forum non
conveniens.
36.3 Work to Continue.Unless otherwise agreed in writing,Contractor shall diligently
carry on the Work and shall not interfere with,restrict or discourage the prompt
completion of any portion of the Work,the correction of any Defects or the provision of
any warranty service during of the pendency of any dispute proceedings,as required
under the terms of this Contract,and Owner shall continue to make undisputed payments
and perform its obligations under this Contract;provided that,during the pendency of any
dispute proceeding,amounts constituting Delay LiquidatedDamages shall be paid and no
set-off against such amounts shall be taken by Contractor and,to the extent Delay
Liquidated Damages are unpaid,Owner may exercise its set-off rights pursuant to
Section 37.17.
37.MISCELLANEOUS
37.1 Severability.The invalidity or unenforceabilityof any portion or provision of this
Contract shall in no way affect the validity or enforceability of any other portion or
provision hereof.Any invalid or unenforceable portion or provision shall be deemed
severed from this Contract and the balance of the Contract shall be construed and
enforced as if the Contract did not contain such invalid or unenforceable portion or
provision.If any such provision of this Contract is so declared invalid,the Parties shall
promptly negotiate in good faith new provisions to eliminate such invalidity and to
restore this Contract as near as possible to its original intent and effect.
37.2 Governing Law.This Contract shall be governed by and interpreted in accordance
with the internal laws of the state of _excluding its conflict of laws provisions.TO
THE FULLEST EXTENT PERMITTED BY LAW,EACH OF THE PARTIES
HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS CONTRACT.EACH PARTY FURTHER
WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY
TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY
TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.IF A WAIVER OF JURY
TRIAL IS DEEMED BY ANY COURT OF COMPETENT JURISDICTION TO NOT
BE ENFORCEABLE FOR ANY REASON,THEN TO THE FULLEST EXTENT
PERMITTED BY LAW,EACH OF THE PARTIES HERETO AGREE TO BINDING
O ARBITRATION.SUCH ARBITRATION SHALL BE IN ACCORDANCE WITH THE
RULES AND PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION
(AAA).NOTWITHSTANDING ANY AAA RULES AND PROCEDURES OR ANY
OTHER PROVISIONS OR ANY STATE OR FEDERAL LAWS,THE PARTIES
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AGREE THAT THE ARBITRATORS SHALL NOT CONSIDER OR AWARD
PUNITIVE DAMAGES AS A REMEDY.UPON THE OWNER'S REQUEST,AAA
SHALL PROVIDE THE PARTIES A LIST OF ARBITRATORS EACH OF WHOM
HAVE EXPERIENCE AND EXPERTISE WITH RESPECT TO CONSTRUCTION.
UPON EACH OF THE PARTIES RECEIPT OF SUCH LIST,EACH PARTY SHALL
HAVE TEN (10)DAYS TO SELECT AN ARBITRATOR.THE TWO SELECTED
ARBITRATORS SHALL THEN SELECT A THIRD ARBITRATOR WITHIN THIRTY
(30)DAYS FROM THE DATE THE INITIAL TWO ARBITRATORS WERE
SELECTED AND THE MATTER SUBJECT TO ARBITRATION SHALL BE
ARBITRATED WITHIN ONE HUNDRED EIGHTY (180)DAYS AFTER THE
SELECTION OF THE THIRD ARBITRATOR.
37.3 Survival of Termination.The representations,warranties,rights and obligations of
the Parties and any other provisions of this Contract which by their nature are intended to
survive the termination or expiration of this Contract shall continue in force and effect
beyond the expirationor termination of this Contract and shall inure to the benefit of the
Parties.
37.4 No Oral Modification.No oral or written amendment or modification of this
Contract (including a Change in Work Form accepted under Article 17)by any officer,O agent,or employee of Contractor or Owner,either before or after execution of this
Contract,shall be of any force or effect unless such amendment or modification or
Change in Work Form is in writing and is signed by any President,any Vice President or
the Chief Executive Officer of the Party (or of the managing member of the Party on
behalfof the Party)to be bound thereby.
37.5 No Waiver.Either Party's waiver of any breach or failure to enforce any of the
terms,covenants,conditions,or other provisions of this Contract at any time shall not in
any way affect,limit,modify,or waive that Party's right thereafter to enforce or compel
strict compliance with every term,covenant,condition,or other provision hereof,any
course of dealing or custom of the trade notwithstanding.All waivers must be in writing
and signed on behalf of Owner and Contractor by the individuals identified in Section
37.1.Time of Essence.Time is of the essence with respect to the performance by
Contractor of its obligations under this Contract.
37.2.Contract Interest Rate.Overdue undisputed payment obligations of the Owner
and the Contractor hereunder shall bear interest from the date due until the date paid at a
rate per annum equal to the lesser of:(a)Prime Rate in effect from time to time plus
three percent (3%);and (b)the highest rate permitted by Applicable Laws.
37.3.Headings for Convenience Only.The headings contained herein are not part of
this Contract and are included solely for the convenience of the Parties.
37.4.Third-Party Beneficiaries.The provisions of this Contract are intended for the
sole benefit of Owner and Contractor and there are no third party beneficiaries hereof,
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except where otherwise expressly provided,other than assignees contemplated by the
terms herein.
37.5.Language.The language of this Contract is the English language,which shall be
the ruling language in which the Contract shall be construed and interpreted.All
correspondence,Drawings and Specifications,Contractor Deliverables,test reports,
Notices,certificates,Required Manuals and other information shall be entirely in the
English language.
37.6.Drafting Interpretations.Preparation of this Contract has been a jointeffort of the
Parties and the resulting documents shall not be construed more severely against one of
the Parties than against the other.
37.7.Further Assurances.Owner and Contractor will each use reasonable efforts to
implement the provisions of this Contract,and for such purpose each,at the request of the
other,will,without further consideration,promptly execute and deliver or cause to be
executed and delivered to the other such assistance,or assignments,consents or other
instruments in addition to those required by this Contract,in form and substance
satisfactory to the other,as the other may reasonably deem necessary or desirable to
O implement any provision of this Contract.Additionally,in the event that either Party has
reasonable cause to suspect that the other Party's ability to perform its respective
obligations under this Contract has been substantially impaired,the impaired Party shall
upon request,provide the requesting Party with reasonably adequate assurance of its
intention and ability to continue its performance as required by this Contract.
37.8.Record Retention.Contractor agrees to retain for a period of seven (7)years from
the Final Completion Date or any longer period as may be required by Applicable Laws
all records relating to its performance of the Work or Contractor's warranty obligations
herein,and agrees to cause all Subcontractors engaged in connection with the Work or
the performance by Contractor of its warranty obligations herein to retain for the same
period all their records relating to the Work.
37.9.Binding on Successors.This Contract shall be binding on the Parties hereto and
on their respective successors,heirs and permitted assigns.
37.10.Merger of Prior Contracts.This Contract supersedes any other agreement,
whether written or oral,that may have been made or entered into between Owner and
Contractor or by any officer or officers of such Parties relating to the Project or the Work.
This Contract and Exhibits hereto constitutes the entire agreement between the Parties
with respect to the Project,and there are no other agreements or commitments with
respect to the Project except as set forth herein.
37.11.Counterpart Execution.This Contract may be executed by the Parties hereto in
any number of counterparts (and by each of the Parties hereto on separate counterparts),
each of which when so executed and delivered shall be an original,but all such
counterparts shall together constitute but one and the same instrument.
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37.12.Set-Off.Either Party may at any time,but shall be under no obligationto,set off
any and all sums due from the other Party against sums due to such Party hereunder.
37.13.Further Information.To the extent Contractor does not file financial statements
with the United States Security and Exchange Commission,the Contractor agrees from
time to time to provide the Owner such information and documents (financial or
otherwise)regarding the Contractor as the Owner may reasonablerequest at Contractor's
cost and expense.
38.NERC CIPS COMPLIANCE
38.1 In the event that the Work under this Contract requires any (i)authorized unescorted
physical access to Owner's Facilities (i.e.,Unescorted Personnel),or (ii)authorized
unescorted physical access or authorized cyber access to Owner's CIP Covered Assets
(i.e.,Sensitive Personnel),Contractor,Unescorted Personnel,and Sensitive Personnel
shall be required to comply with North American Electric Reliability Corporation
("NERC")Critical Infrastructure Protection Standards ("CIPS"),as adopted by Owner
and attached hereto as Exhibit "S",Background Check Criteria -NERC /CIPS
Standards.For all Unescorted Personnel and Sensitive Personnel,Contractor shall:O (a)Ensure that Unescorted Personnel and Sensitive Personnel have passed the
background checks outlined in Section 38.3(a)consistent with the Owner's
Background Check Criteria set forth on Exhibit "S"prior to requesting
unescorted physical access and/or cyber access to Owner's Facilities and/or
CIPS Covered Assets,as applicable;
(b)Ensure that Unescorted Personnel and Sensitive Personnel complete Owner
provided or approved initial CIPS compliance training prior to requesting
unescorted physical access and/or cyber access to Owner's Facilities and/or
CIPS Covered Assets,as applicable;
(c)Ensure that Unescorted Personnel and Sensitive Personnel have passed
Contractor's drug and alcohol exam and are in compliance with Contractor's
substance abuse/drugand alcohol policy as outlined in Section 38.5;and
(d)Keep accurate and detailed documentation to confirm completion dates for
background checks,all CIPS compliance training (initial and annual training,
to the extent applicable),and drug tests,and certify to Owner such
documentation by completing a Contractor/Vendor Information Form,
attached as part of Exhibit "S"hereto,for each Unescorted Personnel andConSreancsePersonna
w any Unescorted Personnel or Sensitive Personnel who
have not met the foregoing requirements of this Section 38.1 to perform Work,
unless Contractor has received prior written consent from Owner.
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38.2 Additional Access Requirements Specific to Sensitive Personnel.In addition to the access
requirements outlined in Section 38.1,with respect to all Sensitive Personnel,Contractor also
shall:
(a)Ensure that Sensitive Personnel and any Personnel with access to BCSI are
informed of and comply with the requirements of Article 27 contained herein,as
well as the requirementsset forth herein;
(b)In addition to the initial CIPS compliance training requirement outlined in
Section 38.1(b),ensure that Sensitive Personnel complete Owner provided or
approved supplemental CIPS compliance training within Owner's prescribed
training window,and not less than on an annual basis;and
(c)Immediately report both (i)Sensitive Personnel terminations for cause,and
(ii)all other Sensitive Personnel terminations or changes in employment
status for those who no longer require access,to Owner's Enterprise Service
Desk ("ESD").The ESD is available by calling the Project Representative.
Contractor shall not allow any Sensitive Personnel who have not met the
foregoing requirements of this Section 38.2 to perform Work,unless Contractor
has received prior written consent from Owner.
38.3 Personnel Screening/Background Check Requirements.For all Unescorted
Personnel and Sensitive Personnel,the following requirements must be met by
Contractor:
(a)Contractor shall conduct,at Contractor's cost and expense,the requisite
background checks for the current and past countries of residence of all
Unescorted Personnel and Sensitive Personnel consistent with Owner's
Background Check Criteria set forth on Exhibit "S".All background checks
will be conducted in accordance with federal,state,provincial,and local laws,
and subject to existing collective bargaining unit agreements or other
agreements,if any;
(b)Following the initial background check to obtain authorization for access,the
background checks shall be updated no less frequently than every seven (7)
years or upon request by Owner,and shall,at a minimum,consist of a social
security number identity verification and seven (7)year criminal background
check,including all convictions for a crime punishable by imprisonment for a
term exceeding one (1)year;
(c)Contractor shall ensure that each of the Unescorted Personnel and Sensitive
Personnel sign an appropriate authorization form prior to background checks
being conducted,acknowledging that the background check is being
conducted,and authorizing the information obtained to be provided to Owner;
O (d)Owner has the right to audit Contractor's records supporting each
Contractor/Vendor Information Form submitted to Owner,including
background check results,and to verify that the requisite background checks
and drug tests were performed consistent with Owner's Background Check
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Criteria,set forth on Exhibit "S".Contractor shall provide Owner with all
requested records supporting Contractor/Vendor Information Forms within a
reasonable time after receiving such request,and in the form requested by
Owner,but not longer than three (3)Business Days followingthe date of such
request;
(e)For purposes of this Contract,a background check is considered valid
pursuant to the Owner's Background Check Criteria,set forth on Exhibit "S",
if it was completed within two (2)years prior to the date on which the
Contractor signed a Contractor/Vendor Information Form for each Unescorted
Personnel and Sensitive Personnel.Regardless of when performed,all
background checks shall be documented pursuant to the requirements set forth
in this Section 38.3;and
(f)In the event Owner notifies Contractor of the impending expiration of the
background check of any Unescorted Personnel or Sensitive Personnel,
Contractor shall provide an updated Contractor/Vendor Information Form
reflecting a refreshed background check within twenty (20)days of receipt of
the notice,in order to avoid revocation of such person's access.
38.4 Contractor Designee.Contractor shall designate one person to be responsible for
compliance with the requirements of this Article 38,and all reporting and inquiries,other
than Sensitive Personnel terminations or changes in employment status,shall be made via
e-mail to Project Representative.Sensitive Personnel terminations or changes in
employment status should be reported to the ESD pursuant to Section 38.2(c).
38.5 Drue Testing.
(a)Contractor shall have and ensure compliance with a substance abuse/drug and
alcohol policy that complies with all applicable federal,provincial and/or
local statutes or regulations.Contractor shall subject each of the Personnel to
a drug test at Contractor's sole cost and expense.Such drug test shall,at a
minimum,be a five (5)Panel Drug Test,which should be recognizable at
testing labs as a "SamHSA5 panel at 50NG -THC cut-off."
(b)For any Personnel who have had a recent drug test,such recent drug test shall
be documented pursuant to the previous paragraph.Contractor warrants that
Contractor and the Personnel are in compliance with Contractor's substance
abuse/drug and alcohol policy.
O (c)During the course of Work performed under this Contract,Contractor shall
keep accurate and detailed documentation of its drug policy and Personnel
drug tests,which it shall submit to Owner upon request.
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(d)Contractor shall designate one person to be responsible for compliance with
the requirements of this Article 38 and all reporting and inquiries,other than
Sensitive Personnel terminations or changes in employment status covered in
Section 38.4,shall be made to the Project Representative in a timely manner.
38.6 Department of Transportation Compliance.Contractor shall ensure Department of
Transportation compliance,including but not limited to valid driver's license,equipment
inspections,hours of service and all appropriate documentation for any Personnel who
may drive while on assignment to Owner.
39.CYBER SECURITY
O
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39.1 Scope.This Cybersecurity Article ("Article")applies to any contractor or supplier
(collectively,"Contractor"for purposes of this Article)and its Personnel and
Subcontractors that provide hardware,software,or services to the Owner that may impact
the confidentiality,integrity,or availability of the Company's networks,systems,
software,Data,or Confidential Informationfor the term of the Contract.
39.2 Defined Terms.
"Confidential Information"shall have the meaning as defined in the Contract and in
addition include any information that can be used to identify or distinguish the identity of
an individual,employee,or customer of Company,including but not limited to name,
social security number,date and place of birth,customer account number,customer
address,customer energy usage information,credit or bank account number,passport or
driver's license numbers,or any information that is linked or linkable to an individual,
employee,or customer that is not otherwise classified as public information by Company,
including medical,financial,and employment information.
"Data"shall mean any information,formulae,algorithms,or other content that the
Company or the Company's employees,agents and end users upload,create or modify
using any software provided pursuant to the Contract.Data also includes user
identification information and metadata which may contain Data or from which the
Company's Data may be ascertainable.
"Security Breach"shall mean any act or omission that compromises either the security,
confidentiality,or integrity of Company's Confidential Information,Data,systems and
facilities or Company's physical,technical,administrative or organizational safeguards
and controls relating to the protection of Company's Confidential Information,Data,
systems,and facilities.
Any capitalized terms not otherwise defined herein shall have the meaning in the
Contract.
39.3 Cybersecurity Controls.
(a)Without limiting Contractor's obligations elsewhere in this Article or the
Contract,Contractor shall implement security safeguards and controls to protect
the Company's networks,systems,software,Data,and Confidential Information
that are no less rigorous than accepted industry practices,specifically those set
forth in the latest published version of ISO/IEC 27001 -Information Security
Management Systems-Requirements and ISO/IEC 27002 -Code of Practice for
International Security Management.
O (b)Contractor agrees to notifythe Company of known security vulnerabilities in
hardware,software,and services provided under the Contract in a timely
manner.
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(c)Contractor warrants that the hardware,software,and patches provided under
the Contract will not contain malicious code.Contractor agrees to provide a
method to verify the integrity and authenticity of all software and patches
provided by the Contractor.
(d)Contractor shall follow all applicable Company requirements for all remote
access to Company resources and systems.To the extent Contractor's
Personnel will have interactive remote access to Company's networks,
systems or applications,such access must be performed on a secure
connection.Contractor shall utilize multi-factor authentication provided by
the Company.Authentication tokens and passwords may not be shared
without written permission from the Company's Vice President,Information
Technology.Immediately upon either (i)Personnel termination actions or (ii)
changes in the status of Personnel which removes their need for remote
access,Contractor shall report such termination or change in status to the
Company's Service Desk.
39.4 Oversight of Compliance.Company reserves the right to conduct an assessment,
audit,examination,or review of Contractor's security controls to conñrm Contractor's
adherence to the terms of this Article,as well as any applicable laws,regulations,and
industry standards,not more than once per year or upon notification of any Security
Breach or complaint regarding Contractor's privacy and security practices.Company
may elect to obtain the services of a mutually-agreeable third party to conduct this
assessment,audit,examination,or review on behalf of Company.Company shall give
Contractor no less than thirty (30)calendar days'notice of its intent to conduct such
assessment,audit,examination,or review.As part of this assessment,audit,
examination,or review,Company may review all controls in Contractor's physical and/or
technical environment in relation to all Confidential Information being handled and/or
hardware,software,or services being provided pursuant to this Contract.Contractor shall
fully cooperate with such assessment by providing access to knowledgeable personnel,
physical premises,documentation,infrastructure,application software,and systems
relevant to the provision of hardware,software,or services under the Contract.
39.5 Security Breach Procedures;Equitable Relief.In the event of Security Breach of
the contractor or subcontractor affecting the Company,the Company's networks,
systems,software,Data,or the Company's Confidential Information,
(a)Contractor shall:
(i)notify the Company of a Security Breach as soon as practicable,
but no later than 48 hours after Contractor becomes aware of it by
telephone at the following number:[insert applicable company's
Service Desk number];and
(ii)provide the Company with the name and contact information for
any Personnel who shall serve as Contractor's primary security
contact and shall be available to assist the Company in resolving
obligations associated with a Security Breach;
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(b)Immediately followingContractor's notification to the Company of a Security
Breach,the Parties shall coordinate with each other to investigate such Security
Breach.Contractor agrees to coordinate with Company in Company's handling of
the matter,including:(i)assisting with any investigation and (ii)making available
all relevant records and other materials required to comply with applicable law,
regulation,industry standards,or otherwise reasonably required by Company.
(c)Contractor shall use best efforts to immediately remedy any Security Breach
and prevent any further or recurrent Security Breach at Contractor's expense in
accordance with applicable privacy laws,regulations,and standards.Contractor
shall reimburse Company for actual reasonable costs incurred by Company in
responding to,and mitigating damages caused by,any Security Breach,including
all costs of notice and/or remediation pursuant to this section.
(d)Contractor shall fully cooperate at its own expense with Company in any
litigation or other formal action deemed reasonably necessary by Company to
protect its rights relating to the use,disclosure,protection,and maintenance of its
Confidential Information and Data.
(e)Contractor acknowledges that any breach of Contractor's obligations set forth
in this Article may cause Company substantial irreparable harm for which
monetary damages would not be adequate compensation and agrees that,in the
event of such a breach or threatened breach,Company is entitled to seek equitable
relief,including a restraining order,injunctive relief,specific performance and
any other relief that may be available from any court,in addition to any other
remedy to which Company may be entitled at law or in equity.Such remedies
shall not be deemed to be exclusive but shall be in addition to all other available
remedies at law or in equity,subject to any express exclusions or limitations in
the Contract to the contrary.
39.6 Network Security &Privacy Liability.If the Work under the Contract involves
the rendering of IT services including,but not limited to:software,software or hardware
or systems development or consulting services;internet/applicationservices (e.g.,web
hosting);providing content;connections to systems,technology or network(s);or if
Contractor in any way collects,obtains,maintains or in any way accesses or uses
Confidential Information or Data,then Contractor,and its Subcontractors,shall maintain
Network Security &Privacy Liability coverage,which can be included via evidenced
endorsement to Professional Errors &Omissions coverage,throughout the term of this
Contact and for a period of two (2)years thereafter,with a minimum required limit of
$5,000,000 Each Claim.
Rocky Mountain Power
Exhibit No.52 Page 107 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
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[Signature Page Follows]
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Rocky Mountain Power
Exhibit No.52 Page 108 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
IN WITNESS WHEREOF,the Parties hereto have caused this Contract to be executed as
of the date and the year first above written.
OWNER:
By:
Name:
Title:
CONTRACTOR:
[1
By:
Name:
Title:
O
Rocky Mountain Power
Exhibit No.52 Page 109 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
RFQ Copy
MASTER
CONTRACT
FOR
ENGINEERING,PROCUREMENT
AND CONSTRUCTION SERVICES
BETWEEN
f 1
PACIFICORP TRANSMISSION PROJECTS
O Dated as of
f 1
O
Both Parties have caused an individual with the requisite authority to acknowledge this and each page ofthis Contract prior to execution.
Contractor:Initial Company lnitial
Rocky Mountain Power
Exhibit No.52 Page 110 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
RFQ Copy
TABLE OF CONTENTS
[To Be Updated]
PAGE
1.DEFINITIONS AND RULES OF INTERPRETA TION................................................................................2
2.EXHI BI TS,INTERPRETA TION,CONFL ICTS .........................................................................................1 7
2.1 Exhibits .....................................................17
2.2 Interpretation .....................................................l 8
2.3 Conflicts in Documentation ...................................................19
2.4 Documentation Format........................................................20
3.RESPONS I BIL I TI ESOFOWNER ...............................................................................................................20
3.1 Project Representative....................................................20
3.2 Owner Milestones .......................................................20
3.3 Ministerial Assistance ......................................................20
3.4 Owner Acquired Permits......................................................21
3.5 Access to Site......................................................21
3.7 Hazardous Materials .....................................................21
4.RESPONS I B IL I TI ESOFCONTR ACTOR ..................................................................................................2 1
4.1 Performance of Work.....................................................21
O 4.2 Cost of Work....................................................23
4.3 Facilities.......................................................23
4.4 Organization........................................................23
4.5 Project Manager/Staff........................................................23
4.6 Contractor Acquired Permits.....................................................23
4.7 Inspection........................................................23
4.8 Maintenance of Site .....................................................23
4.9 Price Allocation Schedule.......................................................24
4.10 Site Security ...................................................24
4.1l Contractor Safety Program.....................................................24
4.12 Equipment ...................................................................25
4.13 Construction Materials and Supplies.....................................................25
4.l4 Contractor's Personnel/Drugs,Alcohol and Firearms.....................................................26
4.15 Applicable Laws/Permits ....................................................26
4.16 Replacement at Owner's Request...................................................27
4.17 Quality Assurance Programs .......................................................27
4.l8 Access ....................................................28
4.19 Documents at Site......................................................29
4.20 Other Assistance.....................................................29
4.21 Data,Drawings and Manuals ......................................................30
4.22 Training...........................................................30
4.23 Announcements;Publications .....................................................30
4.24 Workers'Compensation.....................................................30
4.25 Documents Requested ......................................................30
4.26 Critical Path Schedule ......................................................30
4.27 Project Progress Report.....................................................31
4.28 Accident Reports.....................................................3l
4.29 Punchlist........................................................32
4.30 Measurements.......................................................32
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution
Contractor lnitial Company Iniual
Rocky Mountain Power
Exhibit No.52 Page 111 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
4.31 Meetings....................................................32
4.32 Parts...................................................32
4.33 Hazardous Materials.....................................................32
(a)Contractor's Obligations ....................................................32
(b)Contractor's Responsibility .....................................................33
(c)Procedures Upon Discovery...................................................33
(c)Contractor's Right to a Change In Work.......................................................33
4.35 Audit.................................................................34
4.36 Operation of Existing Facilities........................................................34
4.37 Delivery of Documents ..................................................34
4.38 Site Conditions ....................................................35
4.39 Non-Conforming Work ...................................................36
4.40 Joint and Several Liability.....................................................36
5.WA RR A NTI ES A NDREPRESENT A T IONS ..............................................................................................3 6
5.1 Of Contractor .............................................................................36
5.1.1 Organization,Standing and Qualification ...................................................36
5.1.2 Enforceable Contract ..................................................37
5.l .3 Due Authorization.....................................................37
5.1.4 Government Approvals...................................................37
5.1.5 No Suits,Proceedings......................................................37
5.l.6 Patents ....................................................38
5.1.7 Business Practices ...................................................38
5.1.8 Owner-Provided Information......................................................39
O 5.l .9 Financial Condition ...................................................39
5.1.10 Joint Venture..................................................39
5.2 Of Owner ...................................................................................39
5.2.1 Organization,Standing and Qualification ...................................................39
5.2.2 Enforceable Contract ..................................................39
Due Authorization ......................................................40
5.2.4 Government Approvals....................................................40
No Suits,Proceedings...................................................40
Business Practices .....................................................40
6.COSTOFWORK ............................................................................................................................................41
6.1 Contract Price.....................................................4 1
6.2 All Items of Work Included .....................................................41
6.3 Taxes;Tax Administration and Payments ...................................................42
(a)Responsibility for Taxes....................................................42
(b)Tax Administration and Payment......................................................42
7.TERMSOFP A YMENT ..................................................................................................................................43
7.1 Contractor's Invoices ................................................43
7.2 Certification by Contractor ......................................................43
7.3 Subcontractor Statements....................................................44
7.4 Owner Review;Payments.....................................................44
7.5 Retainage...................................................45
7.6 Final Payment ..................................................45
7.7 Disputes....................................................46
7.8 Method of Payment....................................................46
7.9 Holdbacks .....................................................46
7.10 Application of Monies.......................................................47
H Re ea e ofn
n olla s .........4
ßoth Parties have caused an indis idual with the requisite authorits to acknowledge this and each page of this Contract prior to execution
Contractor Initial Compan initud
Rocky Mountain Power
Exhibit No.52 Page 112 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
8.COMMENCEMENT AND PROSECUTION OF THE WORK..................................................................47
8.1 Commencement of Work.......................................................47
8.3 Prosecution of Work .........................................................49
8.4 Plan .........................................................49
9.FORCEM A JEURE .........................................................................................................................................49
9.1 Events of Force Majeure ...........................................................49
9.2 Notice............................................................................49
9.3 Scope of Suspension;Duty to Mitigate............................................................50
9.4 Removal of Force Majeure...........................................................50
9.5 Responsibility of Contractor .........................................................50
9.6 Contractor's Remedy .......................................................50
10.SUBCONTRA CTORS.....................................................................................................................................50
10.1 Use of Subcontractors;Owner's Right to Object.......................................................50
10.2 No Approvals;Contractor Responsible for Work......................................................5l
10.3 Assignment.......................................................5 l
10.4 Information;Access ..........................................................5 l
1 1.L A BOR RE LA TI ONS .....................................................................................................................................52
11.1 General Management of Employees........................................................52
11.2 Labor Disputes ..........................................................52
l 1.3 Personnel Documents .........................................................52
O 12.INSPECTION;EFFECT OF REVIEW AND COMMENT.........................................................................52
12.1 Inspection and Uncovering Work.......................................................52
12.2 Right to Reject Work...........................................................53
12.3 General Inspection Rights .......................................................54
12.4 Deliverables Schedule........................................................54
12.5 Owner Review of Documents ........................................................54
12.6 Remedy of Defect -Contractor Deliverables..........................................................55
12.7 Limitation on Owner's Obligations...........................................................55
12.INSPECTION;EFFECT OF REVIEW AND COMMENT.........................................................................55
13.1 Foundation Completion.......................................................55
13.2 Project Mechanical Completion ....................................................................................................56
13.3 Achievement of Foundation Completion and Segment Mechanical Completion..........................................57
13.3 Achievement of Foundation Completion and Segment Mechanical Completion..........................................58
14.TESTS A NDTEST I NG ...................................................................................................................................58
14.1 Test Procedures..........................................................58
14.2 Conduct of Tests.......................................................59
14.3 Test Schedules............................................................59
15.SEGMENT SUBSTANTIAL COMPLETION;PROJECT SUBSTANTIAL COMPLETION;AND
FI NA L CO MPLET I ON ............................................................................................................................................59
15.1 Segment Substantial Completion ..........................................................59
15.2 Achievement of Segment Substantial Completion..........................................................60
15.5 Final Completion...............................................................61
15.6 Achievement of Final Completion .......................................................62
15.7 Contractor's Access After Mechanical Completion...........................................................63
16.DEL A YD A MA GES ........................................................................................................................................63
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Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract prior to execution.
Contractor Initial Companv Initial
Rocky Mountain Power
Exhibit No.52 Page 113 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
16.1 Liquidated Damages for Delay.............................................................63
16.l.l Segment Mechanical Completion Delay LDs.........................................................63
16.1.1 Segment Mechanical Completion Delay LDs............................................................64
16.1.5 Other T-Line Interference...........................................................64
16.1.6 Proration of Daily Amounts..........................................................64
16.2 Payment of Liquidated Damages............................................................64
16.3 Offset.................................................................64
16.4 Sole Remedy ...........................................................64
17.CH A NGES I NTHEWO RK ...........................................................................................................................65
17.1 Change In Work ...........................................................65
17.2 By Owner .........................................................65
17.4 Adjustments to the Contract...........................................................66
17.4.1 Adjustments to the Contract Price ...................................................................................................66
17.4.3 Adjustments to the Progress Payment Amounts or Progress Payment Schedule.................................67
17.4.2 Force Majeure...................................................................67
17.4.3 Reduction In Cost .........................................................67
17.5 Schedule Float.......................................................68
17.5 Disputes..........................................................68
17.6 Procedures..........................................................68
17.6.1 Contractor's Estimate ..........................................................68
17.6.2 No Unapproved Scope Changes.........................................................68
17.6.3 Failure to Comply with Notice Requirements ......................................................68
17.7 No Suspension.............................................................68
O 18.WA RR A NT IES CO NCE RN I NGTHEWO RK ............................................................................................69
18.1 Project Warranties...........................................................69
18.2 Materials Warranty............................................................69
18.3 Warranty Period ...........................................................69
1 8.4 Enforcement A fter Expiration .......................................................70
18.5 Exclusions ...........................................................70
18.6 Subcontractor Warranties ........................................................70
18.7 Correction of Defects .........................................................7l
18.8 Additional Warranty Procedures .............................................................72
19.EQU I PMENT I MPORT A TI ON;TI TLE ......................................................................................................74
19.1 Importation of Equipment ..........................................................74
19.2 Title ............................................................74
19.3 Protection .........................................................74
20.DEFA ULT ........................................................................................................................................................75
20.1 Contractor Events of Default..........................................................75
20.2 Owner's Rights and Remedies ......................................................76
20.3 Damages for Contractor Default ............................................................77
20.4 Owner Event of Default ........................................................78
20.5 Contractor's Remedies ..........................................................78
2 1.EARLYTERM INA TI ON ..............................................................................................................................78
2 1.1 General .............................................................78
21.1.1 Adjustment for Defects.........................................................79
21.1.2 Assumption of Contractor Contracts........................................................79
21.2 Claims for Payment.........................................................79
21.3 Termination Payments...........................................................80
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Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract pnor to execution
Contractor Initial Compans Initial
Rocky Mountain Power
Exhibit No.52 Page 114 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
2 2.SUSPEN SION...................................................................................................................................................80
22.1 General ..............................................................................................80
22.2 Contractor's Termination and Compensation Rights .........................................................80
22.3 Extension of Time ..............................................................81
22.4 Claims for Payment..........................................................8l
23.I NSUR A NCE ....................................................................................................................................................8 1
23.1 General ..............................................................8 1
23.1.1 Contractor's Insurance.........................................................81
23.1.2 Owner's Insurance ......................................................8 1
23.1.3 Non-Violation .......................................................82
23.2 Sub rogation Waivers .........................................................82
23.3 Evidence of Insurance .......................................................82
23.4 Insurance Coverages ......................................................83
23.5 Failure to Maintain Insurance........................................................83
23.6 Scope of Coverage .......................................................83
24.RI SKOFLOSSORD A MA GE ......................................................................................................................83
24.1 Contractor Assumption of Risk........................................................83
24.2 Loss or Damage;Limitations .......................................................84
25.I NDEMN IF I CATION......................................................................................................................................84
25.1 By Owner .......................................................84
O 25.2 By Contractor ...............................................................84
25.3 Actions by Government Authorities..........................................................85
25.5 Notice;Defense;Settlement......................................................85
26.PATENT INFRINGEMENT AND OTHER INDEMNIFICATION RIGHTS..........................................86
26.1 Indemnity by Contractor .....................................................86
26.2 Lawsuits ......................................................86
26.3 Injunction .........................................................86
26.4 Effect of Owner's Actions........................................................87
27.CONFIDENTIAL INFORMATION;TITLE TO INTELLECTUAL PROPERTY..................................87
27.1 Confidential Information.....................................................87
27.2 Title to Contractor Deliverables......................................................88
28.I NVENT IONS A NDL I CENSES ....................................................................................................................88
29.A SSI GNMENTBYOWNER ..........................................................................................................................89
30.A SSI GNMENTBYCONTR A CTOR.............................................................................................................89
31.I NDEPENDENTCONTR A CTOR .................................................................................................................89
31.1 General ......................................................89
31.2 Employees .......................................................89
32.NO N-P A YMENTCL A I MS ............................................................................................................................89
33.NOTI CES A NDCOMMUN I CA TI ONS ........................................................................................................90
33.1 Requirements........................................................90
Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution.
Contractor Initial Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 115 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
34.I NTEN TIO NA LLYOM I TTED......................................................................................................................91
35.LIMITATIONS OF LIABILITY AND REMEDIES....................................................................................91
35.1 Limitations on Damages.......................................................91
35.2 Parent Guaranty and Letter of Credit .....................................................92
35.3 Limitations on Contractor's Liability ..................................................93
35.4 Limitation on Owner's Liability.....................................................94
35.5 Releases,Indemnities and Limitations.......................................................94
36.DI SPUTES ........................................................................................................................................................94
3 6.1 Negotiations ....................................................94
36.2 Dispute Resolution ...................................................95
36.3 Work to Continue ....................................................95
37.M I SCELL A NEOUS.........................................................................................................................................95
37.1 Severability ....................................................95
37.2 Governing Law......................................................95
2 No Oral Modification.....................................................96
37.5 No Waiver ....................................................96
37.6 Time of Essence .....................................................96
Contract Interest Rate....................................................97
O Headines for Convenience Only ......................................................97
2 Third-Party Beneficiaries ......................................................97
B Language ...................................................97ORDraftineInterpretations.....................................................97
37.13 Further Assurances...................................................97
37.14 Record Retention.....................................................97
37.15 Binding on Successors....................................................97
B Merger of Prior Contracts...................................................98
37.18 Counterpart Execution.....................................................98
37.20 Set-Off....................................................98
37.21 Further Information .....................................................98
39.NERCC IPSCOMPL I A NCE ..........................................................................................................................98
38.2 Additional Access Requirements .............................................................................................................99
38.3 Personnel Screening/Background Check Requirements for Unescorted Personnel and Sensitive Personnell00
38.4 Contractor Designee.....................................................101
38.5 Drug Testing.......................................................................10l
38.6 DepartmentofTransportationCompliance.....................................................l0l
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution
Contractor lnitial Compan Ininal
Rocky Mountain Power
Exhibit No.52 Page 116 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
THIS TURNKEY CONTRACT FOR ENGINEERING,PROCUREMENT AND
CONSTRUCTION SERVICES (the "Contract")is made and entered into as of
[201_],(the "Effective Date")by and between,PacifiCorp,an Oregon Corporation ("Owner"),
and ,("Contractor").Each entity is sometimes individually referred to
herein as a "Party"and both entities are sometimes collectively referred to herein as the
"Parties."
RECITALS
A.Owner desires to construct,own and operatevarious Projects.
B.For a particular Project,and through a particular Release,Owner desires to engage
Contractor to:
(1)following issuance of a Limited Notice to Proceed,provide the Pre-
Construction Services;and
(2)following issuance of Full Notice to Proceed,to design,engineer,procure,
O construct,test and commission (as to testing and commissioning,only to the
extent expressly provided in this Contract,including Exhibit "A")the Project
all on a turnkey,guaranteedfixed price,guaranteedcompletion date basis,and
Contractor desires to provide such services,all as further defined by the terms
and conditions set forth in this Contract.
C.Contractor has:
(1)been provided and reviewed the preliminary drawings and certain
specifications for the Project and other documents relating to the Project
which Contractor has deemed necessary in connection with this Contract;
(2)inspected the real property on which the Project shall be constructed;and
(3)performed or reviewed such other investigations,studies,and analyses
which Contractor has determined to be necessary or prudent in connection
with entering into this Contract.
D.Contractor agrees to guaranteethe timely completion of the Project.
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Both Panies have caused an individual with the requisite authoritv to acknowledge this and each page of this Contract prior to execution.
Contractor Initial Companv Initial
Rocky Mountain Power
Exhibit No.52 Page 117 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
AGREEMENT
NOW,THEREFORE,in consideration of any sums to be paid to Contractor by
Owner and of the covenants and agreementsset forth herein,the Parties agree as follows:
1.DEFINITIONS
For purposes of this Contract,except as otherwise expressly provided or unless the
context otherwise requires,the following terms shall have the following meanings.The
meanings specified are applicable to both the singular and plural.
1.1.Affiliate.With respect to any Person,another Person that is controlled by,that controls
or is under common control with,such Person;and,for this purpose,"control"with
respect to any Person shall mean the ability to effectively control,directly or indirectly,
the operations and business decisions of such Person whether by voting of securities or
partnership interests or any other method.
1.2.ApplicableLaws.The term means and includes all of the following:
O (a)any statute,law,rule,regulation,code,ordinance,judgment,decree,writ,order or the
like,of any Governmental Authority,and the interpretations thereof,including any
statute,law,rule,regulation,code,ordinance,judgment,decree,writ,order or the like,
regulating,relating to or imposing liability or standards of conduct concerning:
(i)Owner,Contractor,the Site,the Contractor Yard Site or the performance of any
portion of the Work or the Work taken as a whole,or the operation of the Project;
or
(ii)safety and the prevention of injury to Persons and damageto property on,about or
adjacent to the Site or any other location where any other portion of the Work
shall be performed (includingthe Contractor Yard Sites)or
(iii)protection of human health or the environment or emissions,discharges,releases
or threatenedreleases of pollutants,contaminants,chemicals or industrial,toxic or
hazardous substances or wastes into the environment including ambient air,
surface water,ground water,or land,or otherwise relating to the manufacture,
processing,distribution,use,treatment,storage,disposal,transport,or handling of
pollutants,contaminants,chemicals,Hazardous Materials or other industrial,toxic
materials or wastes;as now or may at any time hereafter be in effect;and
(b)Any requirements or conditions on or with respect to the issuance,maintenance or
renewal of any ApplicablePermit or an2y-applicationtherefor.
Both Parties hare caused an individual noth the requisne authern)to acknow edge this and each page of this Contract pnor to execution
t entractor Init;ai Compan Inn
Rocky Mountain Power
Exhibit No.52 Page 118 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
1.3.Applicable Permits.Each and every national,state and local license,authorization,
certification,filing,recording,permit,waiver,exception,variance,franchise,order or other
approval with or of any Governmental Authority,including each and every environmental,
construction,operating or occupancy permit and any agreement,consent or approval that is
required by any ApplicableLaws.
1.4.BES Cyber System Information (BCSI)shall mean information concerning CIPS
Covered Assets that:(i)relates to the production,generation or transmission of energy;(ii)
could be useful to a person planning an attack on critical infrastructure;and (iii)provides
strategic information beyond the geographic location of the critical asset,and which is
identified as BCSI by Owner.BCSI also includes any information concerning CIPS
Covered Assets that has been identified by Owner as Critical Infrastructure Information (or
CII).
1.5.Business Day.A Day,other than a Saturday or Sunday or holiday,on which banks are
generally open for business in Salt Lake City,UT.
O
1.6.Cancellation Schedule.The cancellation payment schedule shall mean as set forth in
Exhibit "D"as part of each Release.
1.7.Change in Law.The enactment,adoption,promulgation,modification,or repeal after
the Effective date of each Release of any Applicable Law of any Governmental Authority
of the United States or the modification after the Effective date of each Release of any
Applicable Permit issued or promulgated by any Governmental Authority of the United
States (that could not be reasonably anticipated on the Effective date of each Release)that
establishes requirements that have a materially adverse effect on Contractor's costs or
schedule for performing the Work;provided,however,neither (a)a change in any national,
federal,or any other income tax law or any other law imposing a tax,duty,levy,impost,
fee,royalty,or charge for which Contractor is responsible hereunder nor (b)a Change in
Law that affects Contractor's or Subcontractor's costs of employment,shall constitute a
Change in Law pursuant to this Contract.Section 4.15 sets out Contractor's rights in the
event that an Owner Acquired Permit has not been issued or an application therefore has
not been made on or prior to the Effective date of each Release.
1.8.Change in Work.A change in the Work as defined in Section 17.1.
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Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract prior to execution
Contractor:Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 119 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
1.9.Change in Work Form.The form documenting a Change in Work as attached hereto as
Exhibit "E".
1.10.CIPS Covered Assets.Any assets identified by Owner as "critical assets,""critical
cyber assets,""BES assets,""BES cyber assets,"or "BES cyber systems,"as those terms
are defined in the North American Electric Reliability Corporation (NERC)Glossary of
Terms."BES"refers to the "Bulk Electric System"as defined by NERC.
1.11.Company.The term as used in the Exhibits hereto has the same meaning as the term
Owner.
1.12.Confidential Information.Information,ideas or materials now or hereafter owned by or
otherwise in the possession or control of,or otherwise relating to,one Party and/or any of
its Affiliates,including inventions,business or trade secrets,know-how,techniques,data,
reports,drawings,specifications,blueprints,flow sheets,designs,engineering,
construction,environmental,operations,marketing,transmission line,substation and
generating station outage schedules and other operating restrictions and conditions,or other
information,together with all copies,summaries,analyses,or extracts thereof,basedOthereonorderivedtherefrom,disclosed by one Party (the "transferor")to the other Party or
any of its Affiliates or any of their respective directors,employees or agents (the
"transferee");provided,however,Confidential Information of Owner shall also mean all
BES Cyber System Informationand any information,ideas or materials related to the Work
or the Project obtained,developed or created by or for Contractor in connection with the
Work,or delivered or disclosed to Owner in connection with the Work,together with all
copies,reproductions,summaries,analyses,or extracts thereof,based thereon or derived
therefrom;and provided,further,Confidential Information of Owner shall also mean
information,ideas,or materials disclosed by Owner or any of its Affiliates,or deduced by
Contractor,any Subcontractor or any of their Affiliates or any of their respective directors,
employees or agents from information supplied by Owner or its Affiliates or agents,or as a
result of visits by Contractor,any Subcontractor,or any of their Affiliates or any of their
respective directors,employees or agents to the premises of Owner or any of its Affiliates
or the Site,which relate to the Project.The terms of this Contract shall also be considered
Confidential Information of the Owner.
1.13.Construction Manager.The permanent,on-Site construction manager designated by
Contractor and approved by Owner in accordance with Section 4.5.
1.14.Contract.This Turnkey Contract for Engineering,Procurement and Construction
Services,including all Exhibits hereto,as the same may be modified,amended,or
supplemented from time to time in accordancewith Article 17 and Section 37.4.
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Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract prior to execution.
Contractor Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 120 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
1.15.Contract Price.Shall mean with respect to each Release,the fixed amount for
performing the Work that is payable to Contractor as set forth in Section 6.1,as the same
may be modified from time to time in accordancewith the terms hereof.
1.16.Contractor.The term has the meaning as set forth in the first paragraphof this Contract.
[The JV partners shall undertake the duties and obligations of the Contractor under this
Contract severally and jointly.Even though the joint venture partners have assumed the
duties and obligations of Contractor under this Contract on a joint and several basis,the
Contractor is referred to throughout the Contract Documents as if singular in number.][If
applicable.]
1.17.Contract Acquired Permits.The Applicable Permits defined in Exhibit "A",Section 17
attached to a particular Release as Contractor Acquired Permits,and any other Applicable
Permits required in connection with the Project or the Work except those Applicable
Permits specified in Exhibit "A",Section 17 attached to a particular Release as Owner
Acquired Permits.
O 1.18.Contract Term.Shall mean the period commencing upon the execution of this Contract
by Owner and continuing thereafter until December 31,2020,unless earlier terminated as
provided herein.
1.19.Contractor Cause.The term shall mean any of the following:(a)Contractor's
unexcused delay in achieving a Project Guaranteed Date or other breach by Contractor of
its obligations under this Contract,or (b)a Defect.
1.20.Contractor Deliverables.Each of the material documents relating to each particular
Release to be delivered to Owner for review and comment in accordance with the
requirements of this Contract,including Article 12;which shall include the documents set
forth on the Deliverables Schedule.
1.21.Contractor Environmental Assurance Program.The accepted material documents
provided in compliance with the requirements of Exhibit A,Section 22.
1.22.Contractor Event of Default.The term has the meaning set forth in Section 20.1.
1.23.Contractor Safety Program.The term has the meaning set forth in Section 4.11.
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Both Parties hate caused an ndmdual with the requeueauthorn to acknowledge this and each page of this Lontract pnor to execution
Rocky Mountain Power
Exhibit No.52 Page 121 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
1.24.Contractor Schedule Milestones.The Contractor schedule milestones set forth on
Exhibit "G"as related to each particular Release.
1.25.Contractor's Invoice.An invoice from Contractor to Owner in accordance with Section
B and in the form of Exhibit "F"hereto.
1.26.Contractor Yard Sites.A site(s)in the vicinity of the Site acquired by the Contractor at
its cost and used by the Contractor as a construction equipment or Equipment storage yard,
a site for construction office trailers,a worker reporting location and/or other Project-
related uses.
1.27.CPCN.The final certificate of public convenience and necessity for a particular project
as issued by the relevant Governmental Authority.
1.28.Critical Path Item(s).With respect to each Project,any items demonstrated (with
satisfactory evidence provided in accordance with Exhibit "G")to be on the critical path
for the Critical Path Method Schedule prepared by Contractor in accordance with Section
O 1.29.Critical Path Method Schedule.With respect to each Project a critical path method
schedule prepared by Contractor describing the time of completion of the Work (including
Critical Path Items)by Contractor,setting forth the dependencies among all Critical Path
Items that affect the achievement of the Project Guaranteed Dates,meeting the
requirements set forth in Exhibit "G",and developed and agreed by the Parties in
accordance with Section 4.26.
1.30.Day or day.A calendar day,unless otherwise specified.
1.31.Defect.Unless otherwise specifically defined elsewhere herein,the term Defect
includes any designs,engineering,materials,workmanship,Equipment,tools,supplies,
installation or other Work,which:
(a)Do not conform to the requirements of this Contract;
(b)Are of defective or inferior manufacture,workmanship or materials;
(c)Are inconsistent with Industry Standards;or
(d)Are not suitable for a project of this type.
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Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract prior to execution
Contractor Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 122 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
1.32.Delay Liquidated Damages.Liquidated damages for delay as set forth in Section 16.1
for the amounts specified in each Release.
1.33.Delay Notice.A Notice of a Force Majeure event,and the estimated delays associated
with such event,as set forth in Section 9.2.
1.34.Deliverables Schedule.With respect to each Release the schedule as described and to
be agreed upon by the Parties in accordance with Section 12.4 that identifies the Contractor
Deliverables to be delivered by Contractor,and Owner's period for review thereof,as such
schedule may be updated from time to time in accordance with Section 12.4 of this
Contract.
1.35.Design Engineering.The responsibility for design engineering including the Drawings
and Specifications for each Project will be defined within each Release and may be
provided by either party or any combination thereof.
1.36.Dollars or $.The lawful currency of the United States of America.
1.37.Drawings and Specifications.With respect to each Project,Drawings,specifications
and documents that are part of the Scope of Work defined in each Release or that have been
or will be prepared by Owner's Engineer,Contractor or any Subcontractor with respect to
the Work and submitted under this Contract (including those drawings,specifications and
documents identified in the Deliverables Scheduleand Exhibit "A",Section 23).
1.38.Effective Date.The term has the meaning as set forth in the first paragraph of this
Contract.
1.39.Equipment.With respect to each Project,all materials,supplies,apparatus,machinery,
equipment,parts,tools,components,instruments,appliances and appurtenances thereto
that are:(a)required for prudent operation of the Project in accordance with Industry
Standards;or (b)described in or required by this Contract,including Exhibit "A"and the
Drawings and Specifications,as described within each Release.
1.40.Exhibits.Each exhibit listed in Section 2.1 and attached hereto and incorporated herein
in its entirety by this reference.
1.41.Final Completion.Satisfaction by Contractor or waiver by Owner of all of the
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution
Contractor lnitial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 123 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
conditions for Final Completion as set forth in Section 15.5.
1.42.Final Completion Certificate.A certificate in substantially the form as set forth in
Exhibit "V"hereto.
1.43.Final Completion Date.The date on which Final Completion of each Project occurs.
1.44.Final Completion GuaranteedDate.The date specified within each Release,and as such
date may be modified in accordancewith Article 17.
1.45.Final Contractor's Invoice.With respect to each Project,the final invoice submitted by
Contractor in accordancewith Section 7.6.
1.46.Final Payment.With respect to each Project,the final payment made by Owner to
Contractor in accordancewith Section 7.6.
1.47.Final Release and Waiver of Liens and Claims.With respect to each Project,a sworn
O statement and waiver of liens prepared by Contractor and each Major Subcontractor,as
applicable,which provides that such Person unconditionally waives and releases all
mechanic's liens,stop notices and bond rights with respect to all Work for which
Contractor requestedFinal Payment in the applicable form set forth in Exhibit "Z".
1.48.Force Majeure.
(a)Any war (whether declared or not),hostilities,blockade,revolution,insurrection,riot or
terrorist act;expropriation,requisition,confiscation,or nationalization;closing of
harbors,docks,canals,or other assistances to or adjuncts of the shipping or navigation
of or within any place;rationing or allocation as imposed by law,decree,or regulation,
or by any Governmental Authorities;actions of a Governmental Authority (other than
with respect to a Party's compliance with Applicable Laws and Applicable Permits
required in connection with a Party's performance under this Contract);fire or
explosion;unusually severe storms and unusually severe weather conditions occurring
in the vicinity of the Site,including flood,lightning strikes,tornado or hurricane;
unusually severe tide,tidal wave or volcano;accidents of navigation or breakdown or
damage of shipping vessels,or accidents to harbors,docks or canals;epidemic or
quarantine;general labor disturbances not specific to Contractor's or Subcontractor's
personnel;or any other event,matter,or thing,wherever occurring and whether similar
or dissimilar to any of the foregoing;provided,however,that,in each case:(i)such
event,matter or circumstance is not within the reasonable control and is without the
fault or negligence of,or willful misconduct of,or breach of this Contract by the Party
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Contractor Initial L ompan innia!
Rocky Mountain Power
Exhibit No.52 Page 124 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
whose performance is affected thereby;(ii)such event,despite the exercise of
commercially reasonable efforts,cannot be or be caused to be prevented,avoided or
removed by such Party;and (iii)to the extent commercially reasonable,the Party
affected has taken precautions and measures to avoid the effect of such event on such
Party and mitigate the consequences thereof.
(b)In relation to any labor strikes,disputes,disturbances,or other matters,the following
shall ng constitute Force Majeure:(i)any labor shortages involving the employees or
workers of Contractor or a Subcontractor;or (ii)any labor disturbance or dispute of
Contractor's and/or any Subcontractor's personnel taking place at the Site or a facility
of Contractor or Subcontractor (except if such action is part of a national action).
(c)In addition,and notwithstanding anything in this definition to the contrary,the
following shall n_ot constitute Force Majeure:(i)mechanical or Equipment failures (so
long as such failure was not itself caused by an event included in part (a)of this
definition);(ii)any Site Condition (so long as the delay was not itself caused by an
event included in part (a)of this definition);(iii)road embargos by Governmental
Entities as a result of seasonal or other weather conditions;(iv)winds of any speed
(except this shall not mean a tornado or hurricane)or any seasonal or climatic weather
conditions (unless such condition is unusually severe);(v)any condition described in
O (a)above that results in increased costs of performance but does not otherwise affect a
Party's ability to perform;(vi)delays in customs clearance (so long as the delay was
not itself caused by an event included in part (a)of this definition);(vii)delays,
breakdowns and accident in transportation other than delays in transportation due to an
event included in part (a)of this definition;and (viii)inability of employees or workers
of Contractor or a Subcontractor to gain physical access to the Site or a Contractor Yard
Site (so long as such inability was not itself caused by an event included in part (a)of
this definition).
1.49.Foundation Completion.The term has the meaning set forth in Section 13.1.
1.50.Foundation Completion Certificate.A certificate in substantially the form as set forth in
Exhibit "V"hereto.
1.51.Full Notice to Proceed.The term has the meaning set forth in Section 8.2.
1.52.Full Notice to Proceed Date.The term has the meaning set forth in Section 8.2.
1.53.Governmental Authorities.All United States and other national,federal,state,
provincial and local governments and all agencies,authorities,departments,
instrumentalities,courts,corporations,or other subdivisions of each having or claiming a
O regulatory interest in or jurisdiction over the Site,the Contractor Yard Site,the Project,the
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution
Contractor lnitial _Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 125 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
Work or the Parties to this Contract.
1.54.Hazardous Materials.Any chemical,material or substance in any form,whether solid,
liquid,gaseous,semisolid,or any combination thereof,whether waste material,raw
material,chemical,finished product,byproduct,or any other material or article,that is
defined,listed or regulated or as to which liability could be imposed,under Applicable
Laws as a "hazardous"or "toxic"substance or waste or material,or as a "pollutant"or
"contaminant,"(or words of similar meaning or import)or is otherwise listed or regulated
under Applicable Laws,or as to which liability could be imposed,under Applicable Laws
including,without limitation,petroleum products,petroleum derived substances,
radioactive materials,asbestos,asbestos containing materials,polychlorinated biphenyls,
urea formaldehyde foam insulation,and lead-containing paints or coatings.
1.55.Industry Standards.Those standards of engineering,construction,operation,
workmanship,Equipment and components specified,with respect to each Release in
Exhibit "A",provided,however,that if the relevant standard is not so specified or is
ambiguous therein,then Industry Standards shall mean those standards of construction,
workmanship,operation,care and diligence normally practiced in the United States by
nationally recognized engineering and construction firms in performing services of a
O similar nature and in accordance with:(a)Applicable Laws and Applicable Permits;(b)
other standards and codes established for such work;and (c)those standards (including of
operation)established and/or recognized as prudent utility practice in the Western United
States.Industry Standards are not necessarily defined as the optimal standard,practice or
method to the exclusion of others,but rather refer to a range of actions reasonable under the
circumstances.For purposes of this definition:(i)the Contractor Deliverables must
comply with Industry Standards at the time that they are submitted to Owner;and (iii)the
Work performed must comply with the Industry Standards at the time that it is performed.
1.56.Interconnection.The connection of each applicable part of the Project to the
Transmission Grid such that the applicable part of the Project is energized at the nominal
system operating voltage for which such part of the Project is designed as further described
in Exhibit "A"and/or such that the Project delivers power and energy to energize the
Project for Tests.
1.57.Key Personnel.The natural persons named in Exhibit "J"attached to each Release.
1.58.Land Rights Agreements.Those agreements and other documents or instruments with
respect to the Site identified and set forth in Exhibit "A",Section 18 attached to each
Release.
1.59.Letter of Credit.The term shall mean the Performance LOC,the Retainage LOC (if
applicable)and the Warranty LOC.
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution
Contractor Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 126 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
1.60.Lien Indemnitees.The term has the meaning set forth in Article 32.
1.61.Limited Notice to Proceed.A Notice provided by Owner directing Contractor to
perform Pre-Construction Services,pursuant to the provisions of Section 8.1.
1.62.Loss(es).Any and all liabilities (including liabilities arising out of the application of the
doctrine of strict liability),obligations,losses,damages,penalties,fines,claims,actions,
suits,judgments,costs,expenses and disbursements,whether any of the foregoing be
founded or unfounded,(including reasonable legal fees and expenses and reasonablethird
party costs of investigation),of whatsoever kind and nature and whether or not involving
damages to the Project or the Site.
1.63.Major Subcontractor.Any Subcontractor where the aggregate value of the applicable
subcontracts and purchase orders between it and the Contractor (or other Subcontractor as
applicable)with respect to the Project exceeds (or is reasonably expected by Contractor to
exceed)$500,000.
1.64.Materials Notice to Proceed.A Notice provided by Owner directing Contractor to
procure certain materials,pursuant to the provisions of Section 8.1
1.65.Materials Notice to Proceed Date.The actual date on which the Materials Notice to
Proceed is delivered to the Contractor by the Owner.The anticipated date is identified in
Exhibit "I"as attached to each Release.
1.66.Materials Warranty.The warranty of Contractor under Section 18.2.
1.67.Maximum Aggregate Liquidated Damages.With respect to each Release,ten percent
(10%)of the Contract Price as the Contract Price may be adjusted from time to time in
accordance with the terms hereof.
1.68.Mechanical Completion Test Procedures.The written procedures for the Mechanical
Completion Tests produced by Contractor and agreed to by Owner in accordance with
Article 14 and Exhibit "A".
1.69.Mechanical Completion Tests.Those tests identifiedto be performed by the Contractor
in connection with the construction and commissioning of the Project in accordance with
Exhibit "A"and Article 14.
1.70.Monthly Progress Report.A written monthly progress report prepared by Contractor in
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Both Parties hate caused an individual with the requisite authoritt to acknowledge this and each page of this Contract prior to execution
Contractor Initial Company initia1
Rocky Mountain Power
Exhibit No.52 Page 127 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
form and content generally in accordancewith Exhibit "A",Section 19 as attached to each
Release.
1.71.Notice.A written communication between the Parties required or permitted by this
Contract and conforming to the requirements of Article 33.
1.72.Owner.PacifiCorp,an Oregon Corporation or as Owner may assign to an Affiliate per
Article 29.
1.73.Owner Acquired Permits.The ApplicablePermits defined as Owner Acquired Permits
in Exhibit "A",Section 17 as attached to each Release.
1.74.Owner Caused Delay.Owner's unexcused delay in performing or failure to perform
any obligation of Owner under this Contract (other than as a result of Force Majeure or by
Owner's exercise of rights under this Contract,including the exercise by Owner of the right
to have defective or nonconforming Work corrected or re-executed).
1.75.Owner's Engineer.The engineering firm or other engineer or engineers (which may be
employees of Owner)selected and designated by Owner.
1.76.Owner's Facilities.The term shall mean any facilities owned,operated or otherwise
controlled by Owner,which requires Owner authorization to obtain access.
1.77.Owner's Scope.The work associated with the Project for which Owner is responsible
and which is expressly identified as such in Exhibit A as attached to each Release.
1.78.Owner Event of Default.The term has the meaning set forth in Section 20.4.
1.79.Owner Milestones.The term has the meaning set forth in Section 3.2.
1.80.Parent Guarantor.The Parent Guarantor is Ï 1-
1.81.Parent Guaranty.The guarantee of the Parent Guarantor referred to in Section 35.2 in
the form set forth in Exhibit "M".
1.82.Parent Legal Opinion.A legal opinion of legal counsel to the Parent Guarantor
reasonably acceptableto Owner in the form set forth in Exhibit "M".
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Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract prior to execution.
Contractor Initial Company lnitial
Rocky Mountain Power
Exhibit No.52 Page 128 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
1.83.Partial Release and Waiver of Liens and Claims.A sworn statement and waiver of liens
prepared by Contractor and each Major Subcontractor,as applicable,which provides that
such Person waives and releases all mechanic's liens,stop notices and bond rights with
respect to that portion of Work for which Contractor requested payment in the current
Contractor's Invoice conditioned upon payment by Owner of the amount of such
Contractor's Invoice in the applicable form set forth in Exhibit "Z".
1.84.Party and Parties.The terms have the meanings set forth in the first paragraph of this
Contract.
1.85.Performance LOC.An irrevocable transferable letter of credit that is (a)issued for the
benefit of Owner by a Qualified Bank that is acceptable to Owner,in Owner's sole
discretion;(b)is in the stated amount equal to ten percent (10%)of the Contract Price with
respect to each Release;and (c)is substantially in the form of Exhibit "O-l".The
Performance LOC terminates in accordancewith Section 35.2.
1.86.Person.Any individual,corporation,company,voluntary association,partnership,
incorporated organization,trust,limited liability company,or any other entity or
organization,including any Governmental Authority.
1.87.Pre-Construction Period.The period of the Project commencing on Owner issuance of a
Limited Notice to Proceed and terminating at the Owner issuance of a Materials Notice to
Proceed,during which period the Contractor shall perform the Pre-Construction Services as
specified in Exhibit "B"as may be attached to each Release.
1.88.Pre-Construction Services.Services to be performed by Contractor during the Pre-
Construction Period,pursuant to the provisions of Section 8.1,as specified in Exhibit "B"
as may be attached to each Release,as requestedby Owner in a Limited Notice to Proceed.
1.89.Prime Rate.The interest rate per annum 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),determined as of the date the obligationto pay interest arises.
1.90.Progress Payment(s).A discrete portion of the Contract Price,payable pursuant to the
Progress Payment Schedule,as a progress payment for completion of discrete portions of
Work,in accordance with Section 7.1.
1.91.Progress Payment Schedule.The Progress Payment Schedule as specified in
Exhibit "D"as attached to each Release,setting forth payments to Contractor for
completion of discrete portions of the Work.
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Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract prior to execution
Contractor Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 129 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
1.92.Project.The complete electric transmission project to be designed,engineered,
procured,constructed,tested and commissioned under a particular Release,together with
all ancillary Equipment and subsystems,together with all supporting improvements and
connections,as generally described in,and including all items described in,the Scope of
Work attachedto each Release.The Project generally consists of the Work.
1.93.Project Guaranteed Dates.The Substantial Completion Guaranteed Date and the Final
Completion Date included in each Release (provided,however,that the Final Completion
Date does not have any Delay Liquidated Damages related thereto).
1.94.Project Manager.The Project Manager designated by Contractor and approved by
Owner pursuant to Section 4.5.
1.95.Project Mechanical Completion.Satisfactory completion by Contractor of all
conditions necessary to achieve Project Mechanical Completion for the entire Project,as
set forth in Section 13.2.
1.96.Project Mechanical Completion Certificate.A certificate in substantially the form as
O set forth in Exhibit "V"hereto,which Contractor shall submit upon completion of the
entire Scope of Work as described in Exhibit "A"attached to each release,in accordance
with the definition within Article 1.94.
1.97.Project Mechanical Completion Date.The date on which Project Mechanical
Completion actually occurs and the entire Scope of Work described in Exhibit "A"as
attached to each Release,is completed in accordance with the definition within Article
1.94.
1.98.Project Mechanical Completion Guaranteed Dates.The date,as specified in each
Release,as such date may be modified in accordancewith Article 17.
1.99.Project Representative.The Project Representative designated by Owner pursuant to
Section 3.1.
1.100.Project Warranties.The warranties of Contractor as set forth in Article 18.
1.101.Punchlist.A schedule of Punchlist Items developed pursuant to Section 15.l(h),
which list must be reasonably satisfactory to Owner.
1.102.Punchlist Items.Each item of Work that:(a)Owner or Contractor identifies as
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution
Contractor:Initial Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 130 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
requiring completion or containing Defects;(b)does not impede the ability of Owner to
safely operate the Project in accordance with Industry Standards;(c)does not affect the
operability (including the capacity,efficiency,reliability,or cost effectiveness),safety or
mechanical or electrical integrity of the Project or the Transmission Grid;and (d)the
completion or repair of which will neither interfere with,nor adversely affect,the
performance of the Project or the Transmission Grid.
1.103.Qualified Bank.A United States branch of any United States bank whose secured
debt obligations or long-term deposits are rated at least "A-"by Standard &Poors (or the
equivalent rating thereof by Moody's)as at the date of issuance,and during the term,of
any Letter of Credit.
1.104.Quality Assurance Program.The Contractor's quality assurance program for the
Work as defined in Section 4.17.
1.105.Release.For each Project to be performed by Contractor hereunder,the
authorized Owner representative shall submit to Contractor a Release substantially in the
form attached hereto as Exhibit K.A unique Release,each with a unique corresponding
Release number,shall be issued for each new Project and be signed by Owner andOContractor.The Release will include the attachments described in this Contract as,attached
to each Release,including but not limited to attachments describing;Scope of Work,
agreed price,period of performance,invoicing details and other such items.Each Release
shall be incorporated into this Contract and be subject to the provisions,terms and
conditions of this Contract.
1.106.Required Manuals.All manufacturers'operating data and manuals,Equipment
and parts manuals,integrated and coordinated operation and maintenance manuals and
instructions,and training aids reasonably necessary to safely,effectively and efficiently
commission,test,start up,operate,maintain and shut down the Project,including those set
out in the Deliverables Schedule.
1.107.Retainage.The amount withheld from payments to Contractor pursuant to Section
7.5.
1.108.Retainage LOC.An irrevocable transferable letter of credit that is (a)issued for
the benefit of Owner by a Qualified Bank that is acceptable to Owner,in Owner's sole
discretion;(b)is in the amount not less than the amount as required by Section 7.5;and (c)
is substantially in the form of Exhibit "O-2".The RetainageLOC terminates in accordance
with Section 7.6.
O 1.109.Schedule Recovery Plan.The term has the meaning set forth in Section 8.3.
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Both Parties have caused an mdividual with the requisite authority to acknowledge this and each page of this Cornract prior to execution
Contractor Innia]Compans Innial
Rocky Mountain Power
Exhibit No.52 Page 131 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
1.110.Scope of Work.The requirements and specifications regarding the Work set forth
under a particular Release,including Exhibit "A".
1.111.Sensitive Personnel.The term shall mean all Personnel with authorized
unescorted physical access or authorized cyber access to Owner's CIPS Covered Assets.
1.112.Site.Those areas of real estate described in Exhibit "A",Section 18,as attached
to each Release,for the performance of Work which may consist of existing or new
substation sites and transmission line corridors,including any additional areas as may,from
time to time,be designated in writing by Owner (in Owner's sole discretion)for
Contractor's use hereunder.
1.113.Site Conditions.The term has the meaning set forth in Section 4.38.
1.114.Spare Parts.The term has the meaning set forth in Section 4.32.
1.115.Subcontractor.Any Person,other than Contractor,performing any portion of the
Work (including any Subcontractor of any tier and any Vendor)in furtherance of
Contractor's obligations under this Contract.
1.116.Substantial Completion.Satisfaction by Contractor or waiver by Owner of all of
the conditions for Substantial Completion as set forth in Section 15.1.
1.117.Substantial Completion Certificate.A certificate in substantially the form as set
forth in Exhibit "V"hereto.
1.118.Substantial Completion Date.The date,on which Substantial Completion actually
occurs.
1.119.Substantial Completion Guaranteed Date.The date,as specified in each Release,
as such date may be modified in accordancewith Article 17.
1.120.Transmission Grid.The electric transmission and distribution system of Owner,or
any other affected transmission owner or operator,and the electric transmission and
distribution systems interconnecting to or adjacent to Owner's or other affected
transmission owner or operator,electric transmission and distribution system.
1.121.Unescorted Personnel.The term shall mean all Personnel with authorized
unescortedphysical access to Owner's Facili-ties.
Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution
Contractor:Initial _Company Initial
Rocky Mountain Power
Exhibit No.52 Page 132 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
1.122.U.S.Customary System.The primary system of weights and measures (other than
the metric system)used in the U.S.today inherited from,but now different from,the
British Imperial System of weights and measures.
1.123.Vendor(s).Persons that supply Equipment to Contractor or any Subcontractor in
connection with the performance of the Work.
1.124.Warranty LOC.An irrevocable transferable letter of credit that is:(a)issued for
the benefit of Owner by a Qualified Bank that is acceptable to Owner,in Owner's sole
discretion;(b)is in the stated amount equal to five percent (5%)of the Contract Price with
respect to each Release;and (c)is substantially in the form of Exhibit "O-3".The
Warranty LOC shall terminate in accordancewith Section 35.2.
1.125.Warranty Period.The term has the meaning as set forth in Section 18.3.
1.126.Warranty Procedures.The term has the meaning as set forth in Section 18.8.
1.127.Work.All work and services required or appropriate in connection with the
engineering,procurement,manufacturing,construction,erection,installation,training,
commissioning (including inspection),testing and completion and all Equipment,and as
further described in Section 4.1,including the Pre-Construction Services.
1.128.Workers'Compensation Laws.The term has the meaning as set forth in Section
4.24.
2.EXHIBITS,INTERPRETATION,CONFLICTS
2.1 Exhibits.This Contract includes the following Exhibits annexed hereto (and
incorporates all attachments to such Exhibits,if any)and any reference in this Contract
to an Exhibit by letter designation,Exhibit or title shall mean one of the following so
indicated and such reference shall indicate such Exhibit herein.
EXHIBITS
A Scope of Work and Specifications (attachedto each Release)
B Pre-Construction Services (attachedto each Release)
C-1 [BHE]Code of Business Conduct
D Progress Payment Schedule and Schedule of Values (attached to each
O Release)
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Rocky Mountain Power
Exhibit No.52 Page 133 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
E Change in Work Form
F Form of Contractor's Invoice
G Critical Path Method Schedule
H Deliverables Schedule (attached to each Release)
I Owner Milestones (attached to each Release)
J Key Personnel (attachedto each Release)
K Form of Release
L Not Used
M Form of Parent Guarantee and Legal Opinion
N Not Used
O Form of Letters of Credit
P Form of Assignment Clause for Subcontractors
Q Insurance
R Detailed Pricing Schedules,Change in Work Rates and Unit
Price Change in Work Rates
S Background Check Criteria /NERC-CIPS Standards
T Contractor's Safety AssuranceProgram
U Contractor's Quality Assurance Programs
V Forms of Completion Certificates
W Owner's Site Access and Safety Requirements
O X Not Used
Y Property Retirement Unit Reporting Requirements
Z Forms of Partial and Final Release and Waiver of Liens and Claims
2.2 Interpretation.Except as otherwise expressly noted:
(a)Terms defined in a given number,tense or form shall have the corresponding
meaning when used in this Contract with initial capitals in another number,tense or
form;
(b)Except as otherwise expressly noted,reference to specific Sections,Subsections and
Exhibits are referencesto such provisions of or attachments to this Contract;
(c)References containing terms such as "hereof,""herein,""hereto,""hereinafter,"and
other terms of like import are not limited in applicability to the specific provision
within which such referencesare set forth but instead refer to this Contract taken as a
whole;
(d)"Includes"or "including"shall not be deemed limited by the specific enumeration of
items,but shall be deemedwithout limitation;
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution
Contractor initial Company Innial
Rocky Mountain Power
Exhibit No.52 Page 134 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
(e)References to agreements,certificates and other legal instruments include all
subsequentamendmentsthereto,and changes to,and restatements or replacements of,
such agreements,certificates or instruments that are duly entered into and effective
against the parties thereto or their permitted successors and assigns;
(f)References to Persons include their permitted successors and assigns;
(g)A reference to a statute or to a regulation issued by a Governmental Authority
includes the statute or regulation in force as of the date hereof,together with all
amendments and supplements thereto and any statute or regulation substituted for
such statute or regulations;
(h)A reference to a governmental agency,department,board,commission or other
public body or to a public officer includes an entity or officer that or who succeeds to
substantially the same functions as those performed by such public body or officer as
of the Effective Date;
O (i)Unless the context clearly intends to the contrary,words singular or plural in number
shall be deemed to include the other and pronouns having a masculine or feminine
gender shall be deemedto include the other;
(j)Unless otherwise stated,words which have well known technical or construction
industry meanings are used in this Contract in accordance with such recognized
meanings;and
(k)The words "acceptable to","approved by,""satisfactory to,""determine that,"
"consent of'or other phrases of like effect or import shall mean that,unless expressly
stated otherwise (including where the Contract provides a time period for such
action),the Party exercising such right of acceptance,approval or judgment shall be
reasonable under the circumstances and shall not unduly delay or withhold such
acceptance,approval,consent or judgment.
2.3 Conflicts in Documentation.
(a)In the event of any conflict between this document and any of the Exhibits hereto,
the terms and provisions of this document,as amendedfrom time to time,shall control,
unless expressly stated otherwise in this document.
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Both Parties have caused an indindual with the requisite authonty to acknowledge this and each page ofthis Contract pnor to execution
Contractor Initial Compan Initia
Rocky Mountain Power
Exhibit No.52 Page 135 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
(b)Should there be any conflict between or within the Exhibit(s)(including the
attachmentsto the Exhibits)hereto,the Contractor shall promptly give Notice to Owner
and shall secure written instructions from the Project Representativebefore proceeding
with the Work affected thereby.Upon receiving written instructions from the Project
Representative,Contractor shall proceed as instructed.
2.4 Documentation Format.This Contract and all documentation to be supplied hereunder
shall be in the English language.
3.RESPONSIBILITIES OF OWNER.
Owner shall:
3.1 Pro¡ect Representative.Designate (by a Notice delivered to Contractor)a Project
Representative,who shall act as a single point of contact for Contractor with respect to
the prosecution of the Work but who shall not be authorized to execute or approve any
O Change in Work or any amendmentsto this Contract.
3.2 Owner Milestones.Owner shall commence or complete,as the case may be,the
Owner's Scope in accordance with the milestones set forth on Exhibit "I"("Owner
Milestones")in accordance with the schedule,terms and conditions set forth in Exhibit
"I"with respect to each applicable Owner Milestone.Owner and Contractor agree that
the timely completion of the Contractor Schedule Milestones by Contractor is an
important aspect of this Contract.In the event Contractor's failure to timely complete a
Contractor Schedule Milestone by the date provided in Exhibit G.1.1 or a Contractor
Cause results in Owner's failure to complete an Owner Milestone by the applicable date
provided in Exhibit "I"or otherwise causes Owner to incur additional costs and
expenses in connection with the performance of its work related to any Owner
Milestones,then:(a)the Owner Milestone date shall be adjusted to reflect any delays to
the extent caused by Contractor;and (b)Contractor shall pay Owner for any additional
costs and expenses reasonably incurred by Owner as a result of any such delay.
3.3 Ministerial Assistance.In a reasonably prompt manner after Notice from Contractor,
execute applications as Contractor may reasonably request in connection with obtaining
any Contractor Acquired Permits.Contractor shall indemnify,defend,and hold
harmless Owner from and against any and all Losses that Owner may incur as a result
of signing any such applications at Contractor's request.
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Hoth Parties have caused an individual with the requisite authoritv to acknowledge this and each page of this Contract prior to execution
Contractor 1nitial Compunv initia!
Rocky Mountain Power
Exhibit No.52 Page 136 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
3.4 Owner Acquired Permits.Obtain with Contractor's reasonable assistance to be
provided at no cost to Owner,and pay for all Owner Acquired Permits.
3.5 Access to Site.Subject to Section 4.18,the Land Rights Agreements and the terms of
the Applicable Permits,Owner shall make the designated parts of the Site reasonably
available to Contractor on or prior to the applicable Owner Milestone for such part of
the Site so as to permit the Contractor to perform the Work applicable to such part of
the Site;provided,however,that Contractor shall coordinate with Owner regarding
initial entry onto the Site or any part thereof and contact with the Persons who own
property on or near,or have granted license or easement rights in and to,the Site.
Contractor shall be solely responsible for all costs and expenses required to upgrade
(including paving if required),repair and maintain any existing roads and to construct,
repair and maintain any temporary roads in connection with the Project.Contractor
shall be solely responsible for all costs and expenses required to repair any damages to
the Site arising as a result of Contractor's performance of the Work;and without
limiting the generality of this sentence,shall also be responsible for the specific
damages in accordancewith Exhibit "A",Section 18.
3.6 Hazardous Materials.Owner shall be responsible for all Hazardous Materials (other
O than Hazardous Materials for which Contractor is responsible pursuant to Section 4.33)
at the Site as of prior to the Effective date of each Release and for any Hazardous
Materials subsequently brought to the Site by Owner or anyone employed by the Owner
(other than Contractor,Subcontractor,anyone employed by them,or anyone for whose
acts Contractor or any Subcontractor may be liable).Owner shall,with respect to those
Hazardous Materials identified above in this Section,and at Owner's sole cost and
expense,be responsible for:(a)the proper handling,storage,collection,containment,
removal,transportation and disposal from the Site of all such Hazardous Materials;and
(b)any environmental condition caused by such Hazardous Materials.
4.RESPONSIBILITIES OF CONTRACTOR.
Contractor shall:
4.1 Performance of Work.Perform or cause to be performed all Work for the engineering,
procurement,construction,erection,installation,commissioning and testing of the Project
and the other materials,equipment,machinery and facilities;which work and services shall
include the provision of all permits,materials,Equipment,machinery,tools,labor,
transportation,administration and other services and items required to complete and deliver
to Owner the fully integrated and operational Project,all on a fixed-price,turnkey,
guaranteed-date basis,and otherwise in accordance with the Contract (includingExhibit "A"
and,if applicable,Exhibit "B"),Applic2albleLaws and Industry Standards.Contractor
Both Parties hate caused an indisidual with the requaite authonts to acknow edge this and each page o this Contract pnor to execution
Contractor Initial Compani nt:ial
Rocky Mountain Power
Exhibit No.52 Page 137 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
hereby agrees to perform or cause to be performed all Work upon the terms and conditions
of this Contract.
Contractor shall perform and complete all of the Work on a turnkey basis without any
Defects,in accordance with the terms of this Contract and in compliance with Industry
Standards,Applicable Laws and Applicable Permits;provided,however,that where any
such standard,law,permit or contract provides for less stringent standards than those
specifically stated in this Contract,the standards specifically stated in this Contract shall
govern.
Where this Contract describes a portion of the Work in general,but not in complete detail,
the Parties acknowledge and agree that the Work includes any incidental work that within
the construction industry is customarily included in projects of the type contemplated by this
Contract or by Industry Standards.
Contractor shall design the Project so that it is capable of operation,at the design levels
specified in the Scope of Work,including Exhibit "A",in compliance with Industry
Standards,Applicable Laws and ApplicablePermits.Contractor shall design the Project so
that it will allow operation of the Project and its component parts over the full range of
operative and ambient conditions while meeting Applicable Laws,Applicable Permits and
O Industry Standards.Contractor acknowledges that this Contract constitutes a fixed price
obligationto engineer,design,procure,construct and test through Substantial Completion a
turnkey project,complete in every detail,within the time and for the purpose specified
herein by Owner.
References to the obligations of Contractor under this Contract as being "turnkey"and
performing the Work on a "turnkey basis"mean that Contractor is obligated to supply all of
the Equipment,labor and design services and to supply and perform all of the Work,in each
case as may reasonably be required,necessary,or appropriate (whether or not specifically
set forth in this Contract)to complete the Work such that the Project satisfies the applicable
terms and conditions set forth in this Contract,all for the Contract Price.
The Project shall be built in a manner so that none of the Work (including the Equipment)
will be determined,for insurance purposes,to be "prototype equipment."
Contractor acknowledges that the Project permits,including applicable regulatory
approvals,may be based on work areas and conditions as defmed in those documents.
Project work areas may have been,or may be,identified including,but not limited to pull
sites,work areas,access roads,and potential staging areas.Project change opportunities
may be severely limited.No Project changes will be approved if they would be located
outside of the geographic boundary of the established project work areas or otherwise are
deemedto alter the circumstances,impacts,conditions,or effects of the Project.
Certain details of the Work are further described in this Article 4.Without limiting the
foregoing,Contractor shall perform the following as part of the Work.
Both Parties have caused an individual with the requishe authority to acknowledge this and each page of this Contract pnor to execution
Contractor Inibal Company initial
Rocky Mountain Power
Exhibit No.52 Page 138 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vall
O
4.2 Cost of Work.Furnish,be responsible for,and pay the cost of all of the Work including
labor,materials,Equipment and supervision necessary to engineer,procure,expedite,
deliver,receive,secure,off-load,store,construct,inspect,commission and test the Project,
in strict accordance with the provisions of this Contract,including all access roads,site
work,footings,foundations,pilings,drilled piers,construction materials,construction
equipment,and auxiliaries.
4.3 Facilities.Provide all communication facilities,material storage and laydown areas,
construction water,construction electricity and sanitary facilities to be used by Contractor
and Subcontractors during performance of the Work.
4.4 Organization.Maintain a qualified and competent organization at the Site with adequate
capacity and numbers of construction and commissioning personnel,construction
equipment,tools,materials,supplies and facilities to execute the Work in a safe,efficient,
environmentally sound,and professional manner at a rate of progress in accordancewith the
Critical Path Method Schedule.
4.5 Project Manager/Staff.Designate a Project Manager acceptableto Owner who will have
O full responsibility for the prosecution of the Work and will act as a single point of contact in
all matters on behalf of Contractor.Designate a Construction Manager and provide staff to
supervise,manage and coordinate the Work of Contractor and Subcontractors on the Site.
The Key Personnel shall at all times hold the positions and be dedicated to the performance
of the duties described in Exhibit "J".Any replacement of the Project Manager or Key
Personnel shall be subject to the prior written consent of Owner which consent will not be
unreasonably withheld.If Owner fails to respond to a request for consent within ten (10)
Business Days after Owner's receipt of Contractor's request,Owner shall be deemed to
have consented to the proposed individual.
4.6 Contractor Acquired Permits.Obtain all Contractor Acquired Permits and provide
copies to Owner at Owner's request.
4.7 Inspection.Perform all inspection;expediting,quality surveillance,and other like
services required for performance of the Work,including inspecting all materials and
Equipment that comprise the Project or that are to be used in the performance of the Work.
Contractor shall be responsible for determining all utility locations,underground
obstructions,archeological and cultural resources at its own expense prior to undertaking
any Work at the Site.
4.8 Maintenance of Site.Maintain the Site and any Contractor Yard Site clear of Hazardous
Materials,debris,waste material and rubbish.All trash,debris and waste materials shall be
removed from the Site and disposed of by Contractor,in a timely manner.All waste must
be disposed of at a permitted sanitary disposal site,and Contractor shall provide Owner
copies of all waste disposal manifests.C23mbustiblematerial shall be promptly removed
Both Parties base caused an ndmdual with the requisite authont)to acknowledge ih and each page ofthis entract pnor to execution
Rocky Mountain Power
Exhibit No.52 Page 139 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
from the Site or Contractor's Yard Site,and shall not be allowed to accumulate.Burning on
the Site and the Contractor Yard Site is prohibited.Promptly upon the completion of the
Work,the Work shall be cleaned and all scrap,trash,and waste materials and debris
resulting from Work under this Contract shall be removed from the Site and the Contractor
Yard Site.All Contractor-owned facilities,materials and construction equipment shall be
removed from the Site and the Contractor Yard Site and such sites shall be left in its original
condition,except to the extent it has been modified pursuant to this Contract.If Contractor
fails to clean up as provided herein,Owner may do so and the reasonablecost thereof shall
be charged to Contractor or offset against payments hereunder.
4.9 Price Allocation Schedule.Upon Owner's reasonable requests,provide a price
allocation schedule for the Work and other information reasonably necessary for Owner to
maintain segregated accounts for its accounting and tax records,ownership records and/or
fixed asset records.
4.10 Site Security.Contractor shall provide all necessary and reasonably appropriate
security measures for the protection of the Work,the Site,the Contractor Yard Site and the
Project.Contractor will consult with and cooperate with Owner in the development and
implementation of security practices and programs for the Project.Contractor shall prepare
and maintain accurate reports of incidents of loss,theft,or vandalism and shall furnish these
O reports to Owner in a timely manner.Contractor shall not be entitled to any adjustment of
the Substantial Completion Date or any adjustment to the Contract Price arising from
incidents of Equipment theft or vandalism.
4.11 Contractor Safety Program.Contractor shall comply with the requirements of Exhibit
"A",the Contractor Safety Program set out in Exhibit "T",and Owner's Safety
Requirements set out in Exhibit "W"(including any third party safety requirements that are
applicable to portions of the Work and stated in Exhibit "W"),and provide all necessary and
reasonably appropriate safeguardsat the Site and any Contractor Yard Site for the protection
of all Persons and the Work.Contractor shall not perform any Work at the Site until and
unless a safety plan applicable to such Work is either included in Exhibit "T"or included in
the fully integrated safety program delivered and accepted by Owner in accordance with this
Section 4.11.In the event Contractor fails to comply with the safety program requirements
set forth in this Contract,Owner shall be entitled to immediately suspend the Work until
non-compliance is rectified,and neither the Contract Price nor any other Project Guaranteed
Dates shall be adjusted as the result of any such suspension.
Within sixty (60)days of the effective date of each Release,Contractor shall provide,by
Notice to Owner,a Contractor Project safety program that has fully integrated the
requirements in Exhibit "A",Exhibit "T"and Exhibit "W"and that is prepared specifically
for this Project (the "Contractor Safety Program").Owner shall have the right to review and
comment on such program and if Owner provides Contractor with comments,then
Contractor shall incorporate such changes into such program.If Owner fails to comment
within fifteen (15)days after receipt of such notice,Owner shall be deemed to have
accepted such Contractor Safety Program-2Up-onacceptance (or deemedacceptance)of such
Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution
Contractor:Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 140 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
program by Owner,such program shall supersede and be deemed to replace the program
attached as Exhibit "T"hereto.In the event the standards or requirements derived from the
foregoing are inconsistent,Contractor shall perform,or cause to be performed,its
obligations in accordancewith the requirements of the most stringent rule,standard,criteria
or guideline.Notwithstanding Owner's review and approval of the Contractor Safety
Program,Contractor shall remain solely responsible for performing the Work in accordance
with this Contract.
Contractor shall provide Project Representative with immediate telephone or email
notification followed by Notice to Owner within twenty-four (24)hours of any accidents
and/or occupational injuries or vehicle accidents that occur to any of Contractor's or
Subcontractor's employees working on or in the vicinity of the Site or a Contractor Yard
Site,any damages to Owner's facilities,any property damage,bodily injury,electric
contact,or fatality that arises in connection with the performance of this Contract on or in
the vicinity of the Site or Contractor Yard Site which such notice shall be on the Owner's
form included in the materials attached as part of Exhibit "W".Contractor will furnish
Owner with a copy of all accident reports or work injury reports as promptly as possible and
in any event within twenty-four (24)hours of such accident or work injuryand in the event
any further reports are completed after such initial reporting,Contractor shall promptly
provide Owner a copy.Contractor shall assist Owner in any investigation and provide
O information as reasonably requested by Owner relating to the incident.Contractor shall
provide Owner with a 'root cause analysis'of the accident or incident within three (3)
business days of the accident or incident occurring.All accident and incident reports shall
comply with Applicable Laws.Contractor shall provide Owner with copies of all written
communications with Governmental Authorities and insurance companies (including any
notices)with respect to accidents that occur at the Site.
4.12 Equipment.Arrange for complete handling of all Equipment and construction
equipment including inspection,expediting,quality assurance,shipping,loading,unloading,
customs clearance,permitting and licensing,receiving,storage,and claims.
4.13 Construction Materials and Supplies.Provide all temporary construction materials,
office and meeting facilities,all communication lines and facilities,warehousing and
storage facilities,fuel storage facilities,sanitary facilities,parking facilities for Contractor's
and Subcontractors work force,laydown areas,equipment,supplies,construction utilities
and facilities,special tools,and commissioning supplies reasonably necessary or appropriate
for the construction,testing,commissioning,and operation and maintenance of the Project
until achievement of Substantial Completion.Contractor shall provide internet access and
telephone access at the construction Site office.By delivery of a Notice to Owner prior to
the disposition of any surplus construction materials,parts,or supplies remaining on the Site
on the Substantial Completion Date (other than materials and supplies necessary to achieve
Final Completion),Contractor shall give Owner the option to purchase all or part of such
items at a price not exceeding Contractor's cost therefor.Owner shall exercise such right,if
it so elects,within thirty(30)days after receipt of such Notice.
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Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract prior to execution
Contractor:Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 141 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
4.14 Contractor's Personnel/Drugs,Alcohol and Firearms.Contractor shall employ in the
performance of the Work only persons qualified for the same.Contractor shall at all times
enforce strict discipline and good order among its employees and the employees of any
Subcontractor of any tier.Contractor shall not permit or allow the introduction or use of any
firearms,illegal drugs or intoxicating liquor upon the Work under this Contract,or upon any
of the grounds occupied,controlled or used by Contractor in the performance of the Work.
Contractor shall immediately remove from the Work,whenever requested by Owner,any
person considered by Owner to be incompetent,insubordinate,careless,disorderly,or in
violation of the above restriction on firearms,illegal drugs or intoxicating liquor,or under
the influence of illegal drugs or intoxicating liquor,and such person shall not again be
employed in the performance of the Work herein without the consent of Owner.
4.15 Applicable Laws/Permits.Contractor shall provide all technical support and
information,and other reasonably requested information,to assist the Owner in applying for
and obtaining Owner Acquired Permits.Contractor shall comply in all respects with all
Applicable Laws and Applicable Permits relating to the Project,the Site,the Contractor
Yard Site and the performance of the Work.The Contractor Acquired Permits either have
been obtained by Contractor and are in full force and effect on the Effective date of each
Release or will be obtained by Contractor and will be in full force and effect on or prior to
the date on which they are required,under ApplicableLaws,to be in full force and effect,so
O as to permit Contractor to commence and prosecute the Work to completion in accordance
with the Critical Path Method Schedule.
Without limiting the generality of the foregoing,Contractor shall comply with all
Applicable Laws and Applicable Permits regarding environmental matters.Prior to
proceeding with construction activities,Contractor must develop an environmental
assurance plan complying with the requirements of Exhibit "A",Section 22.Contractor's
environmental assurance program will be subject to Owner's review and approval.Delays
incurred due to Contractor's failure to provide an environmental assurance program
approved by Owner will not constitute a Change in Work.Within forty-five (45)days of
the effective date of each Release,Contractor shall provide,by Notice to Owner,a
Contractor environmental assurance program that has fully integrated the requirements in
Exhibit "A",Section 22 and that is prepared specifically for this Project (the "Contractor
Environmental Assurance Program").Owner shall have the right to review and comment on
such program and if Owner provides Contractor with comments,then Contractor shall
incorporate such changes into such program.If Owner fails to comment within fifteen (15)
days after receipt of such notice,Owner shall be deemed to have accepted such Contractor
Environmental Assurance Program.Upon acceptance (or deemed acceptance)of such
program by Owner,such program shall supersede and be deemed to replace the program
attached as Exhibit A,Section 22"hereto.In the event the standards or requirements
derived from the foregoing are inconsistent,Contractor shall perform,or cause to be
performed,its obligations in accordance with the requirements of the most stringent rule,
standard,criteria or guideline and in all events in compliance with Applicable Laws and
Applicable Permits.Notwithstanding Owner's review and approval of the Contractor
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution
Contractor Initial Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 142 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
Environmental Assurance Program,Contractor shall remain solely responsible for
performing the Work in accordancewith this Contract.
Contractor shall be responsible for all Losses that may arise (including those that Owner
pays or becomes liable to pay)because of non-compliance with requirements in this Section,
other than any such Losses arising from:(a)the acts or omissions of Owner,Owner's
employees and agents,or other third parties under the control of Owner,or (b)Hazardous
Materials for which Owner is responsible pursuant to Section 3.6.
So long as Contractor has complied with its obligation to provide support and information as
described above,Contractor shall be entitled to request a Change in Work in accordance
with Article 17 in the event the final conditions,obligations and/or requirements of an
Owner Acquired Permit (as identified in Exhibit "A",Section 17 as not being in final form
as of the Effective date of each Release)are different than those conditions,obligations
and/or requirements that should have been reasonably anticipated by the Contractor based
upon the Scope of Work,Industry Standards,and the applicable permit application or draft
permit (if and as provided to Contractor by Owner prior to the Effective date of each
Release)and such difference has a materially adverse effect on Contractor's costs and
schedule for performing the Work.Notwithstanding the forgoing,variances to Owner
Acquired Permits that are not directed and approved by Owner will not constitute a Change
in Work.
4.16 Replacement at Owner's Request.Within two (2)Business Days after request by
Owner,remove from the Site and performance of the Work,and cause any Subcontractor to
remove from the Site and performance of the Work,and as soon as reasonably practicable,
replace,any individual performing the Work (including any of the Key Personnel)whom
Owner believes to be creating a safety hazard or a material risk of:(a)non-achievement of a
Project Guaranteed Date;or (b)material non-performance by Contractor in accordance with
this Contract.
4.17 Quality Assurance Programs.Use effective quality assurance programs,acceptable to
Owner and consistent with the requirements of Exhibit "A"and the Quality Assurance
Program set out in Exhibit "U"in performing the Work.Within forty-five (45)days of the
effective date of each Release,Contractor shall provide by Notice to Owner a Quality
Assurance Program that has fully integrated the requirements in Exhibit "A"and Exhibit
"i and that is prepared specifically for this Project ("Ouality Assurance Program").
Owner shall have the right to review and comment on such program and if Owner provides
Contractor with comments,then Contractor shall incorporate such changes into such
program.If Owner fails to comment with fifteen days after receipt of such notice,Owner
shall be deemed to have accepted such program.Contractor shall not perform any Work
until and unless a quality assurance program applicable to such Work is either included in
Exhibit "U"or included in the Quality Assurance Program delivered and accepted by Owner
in accordance with this Section 4.17.Upon acceptance (or deemed acceptance)of such
program by Owner,such program shall supersede and be deemed to replace the program
attached as Exhibit "U"hereto.Notwith2s7tandingOwner's review and approval of such
Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial _Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 143 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
program,Contractor shall remain solely responsible for performing the Work in accordance
with this Contract.
4.18 Access.Contractor and its Subcontractors may access those parts of the Site identified
in Exhibit "I"as being available to be accessed by Contractor for the performance of the
Work on the date of the corresponding Owner Milestone as set forth on Exhibit "I",and any
such access by Contractor and its Subcontractors shall be in accordance with the terms of
this Contract.In no event shall Contractor or any Subcontractor commence any Work upon
any portion of the Site unless and until Owner issues a Notice to Contractor that such
portion of the Site may be accessed by the Contractor to perform the Work,and then upon
such issuance Contractor shall only be permitted to access those portions of the Site
reasonably required to be accessed to perform the Work that is the subject of the applicable
Notice,unless otherwise agreedin writing by Owner.
Contractor shall use only the entrance(s)to the Site as ultimately determined,per Section
,as a result of the permits,plans and designs resulting from the Pre-Construction
Services for ingress and egress of all personnel,equipment,vehicles and materials.In
addition,Contractor shall comply with the terms set forth in the Land Rights Agreements as
described in Exhibit "A",Section 18 with respect to certain specific access matters.
Contractor shall perform the Work consistent and in accordance with Owner's ownership,
O license,easement rights in and to the Site,and the Land Rights Agreements,all as set forth
in Exhibit "A",Section 18.That portion of the Site subject to the Land Rights Agreements
may only be accessed by using the right-of-way as defmed in such Land Rights Agreements
and not across other property of the right-of-way landowner.Owner agrees to provide to
Contractor any Land Rights Agreement or Contractor obligations with respect to access to
the Site not included in Exhibit "A",Section 18 or the other provisions of Exhibit "A"after
the Effective date of each Release and prior to the applicable Owner Milestone set forth in
Exhibit "I"relating to Site Access.
Contractor shall not damage,close,or obstruct any highway,road,or other public or private
easement,except to the extent allowed by Applicable Permits.If such facilities are closed,
obstructed,damaged,or made unsafe by Contractor,Contractor shall,at its sole expense,
make such repair as necessary and shall also provide such temporary guards,lights,and
other signals as necessary or required for safety or as reasonably requestedby Owner.
Owner shall have access to all existing facilities in case emergency repairs are necessary.
Contractor shall not block or obstruct existing access routes to existing facilities.
Contractor has undertaken (or will be deemed to have undertaken)an independent
determination of the adequacy of the Land Rights Agreements as described in Exhibit "A",
Section 18 and represents that such Land Rights Agreements (or if not obtained as of the
Effective Date,if substantially in the form of the Land Rights Agreements as described in
Exhibit "A",Section 18)are satisfactory and sufficient for Contractor to perform the Work
hereunder on the real estate covered by such Land Rights Agreements and to gain access to
the transmission line right of way and thensubstationproperties.Contractor shall comply
Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial __Cornpany Initial
Rocky Mountain Power
Exhibit No.52 Page 144 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
with the terms of the Land Rights Agreements.As of the Effective date of each Release,
Contractor represents and warrants that it has inspected and is fully familiar with the Site
and the Land Rights Agreements (as listed in Exhibit "A",Section 18)and that the Site and
such Land Rights Agreements are sufficient for Contractor to undertake and complete the
Work.Contractor shall have the sole responsibility to obtain all construction permits,
transportation permits,and other licenses,rights of way and other real property rights and
easements necessary for Contractor to complete the Work that are not part of the Land
Rights Agreements,and any Owner assistance to Contractor in obtaining,or negotiation of,
such rights shall be for Contractor's account and Owner may deduct such costs and
expenses from any payment due to Contractor from Owner hereunder.
Contractor shall provide all necessary information and documents and use all reasonable
efforts to assist Owner in obtaining any Land Rights Agreements or other real property
rights that Owner at any time is seeking in connection with the Project.Contractor shall
provide direct support,including but not limited to engineering drawings,expert testimony,
supporting documents and affidavits,etc.,to Owner's legal counsel in connection with any
condemnation proceedings or any other legal action that may arise from the work
performed.Contractor shall notify Owner upon the occurrence,or likely occurrence,of a
dispute,conflict,confrontation,or other similar problem,or potential problem,involving
one or more owners or occupiers of land so situated as to potentiallyresult in a situation that
may have a material adverse effect upon the performance of the Work.Contractor shall
cooperate with Owner in resolving all such problems.
Contractor agrees to conduct and coordinate (if necessary)the performance of the Work by
Contractor at the Site with the other construction contractors performing work at the Site.
Contractor shall,prior to proceeding with any Work at the Site,give Notice to Owner of any
issues that Contractor has determined would materially delay or affect Contractor's
performance of the Work.Failure of the Contractor to provide such Notice shall constitute
an acknowledgment and admission that Owner has provided reasonableaccess to the Site.
4.19 Documents at Site.Upon mobilization to the Site,Contractor shall maintain at the
Contractor's primary field office at or near the Site for Owner one (1)record copy of the
Contractor Deliverables,in good order and marked currently to record changes and
selections made during the Work and,in addition,approved shop drawings,product data,
samples and similar required submittals.These shall be available to Owner at all times.
Upon completion of the Work,Contractor shall promptly furnish Owner with one (1)set of
as-built drawings and complete copies of the shop drawings,product data,samples,
operating manuals,parts books and other submittals required by the Contract.
4.20 Other Assistance.Until Final Completion,Contractor shall:(a)to the extent
reasonably requestedby Owner,assist Owner in dealing with Governmental Authorities and
other Persons in any and all matters relating to the Work and/or the Project;and
(b)cooperate to the extent reasonably necessary to enable Owner to perform its obligations
under Owner's agreementswith other Persons.
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 145 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
4.21 Data,Drawings and Manuals.Provide all operating data,preliminary or redline as-
built drawings,manuals and other information necessary to safely and efficiently
commission,test,operate,shut down,and maintain the Project (including those set forth in
Exhibit "A").Contractor shall maintain at the Site (in compliance with the maintenance
requirements in Section 4.19)for Owner one (1)record copy of the Contractor Deliverables
in good order and marked currently to record changes and selections made during the Work
and,in addition,approved shop drawings,product data,samples and similar required
submittals.These shall be kept on the Site and be available to Owner at all times.
4.22 Training.Contractor shall provide the training as described in Exhibit "A".
4.23 Announcements,Publications.Other than as may be required by Applicable Laws,
Contractor shall not make any public announcements or issue any public publication about
the Project without the prior written consent of the Owner.
4.24 Workers'Compensation.Contractor shall comply with all applicable statutory
requirements of the state and/or federal regulations (e.g.,FELA,USL&H,Jones Act)where
the Work is to be performed ("Workers'Compensation Laws")and shall furnish proof
thereof satisfactory to Owner prior to commencing Work.
O 4.25 Documents Requested.Provide such data,reports,certifications and other documents,
including multiple hard copies of each and one electronic copy (unless another quantity is
specified in the Contract),or assistance related to the Work or this Contract as may be
reasonably requested by the Owner;provided,however,that the provision of this
information shall not in any manner modify Contractor's rights or obligations under any
other provision of this Contract.
4.26 Critical Path Method Schedule.Attached in Exhibit "G"is a summary schedule
(including all of the Critical Path Items and the Owner Milestones)(the "Summary Bid
Schedule").For Pre-Construction Services scope of work,as may be described in Exhibit
B,the Contractor is not required to submit a schedule.Contractor shall provide materials
and information on an updated basis in accordance with Exhibit G.8.1.2 for Pre-
Construction Services.
Within fourteen (14 days)of the effective date of each Release,Contractor shall provide
Owner with a detailed preliminary schedule for the first ninety (90)days after the effective
date of each Release.The preliminary schedule should be consistent with the Summary Bid
Schedule and must satisfy the requirements of Exhibit G.
For construction services scope of work as described in Exhibit A,the Contractor must
provide a complete detailed critical path method schedule (the "Project Baseline Schedule")
to be submitted to the Owner,for review,within sixty (60)Days of the effective date of
each Release..The Project Baseline Schedule must be consistent with the Summary Bid
Schedule,and satisfy the requirements set forth in Exhibit "G".The Project Baseline
Schedule shall be subject to Owner's appr30va-l,not to be unreasonably withheld or delayed.
Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract pnor to execution.
Contractor:Initial Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 146 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
The latest version of the critical path method schedule approved by Owner shall be deemed
to be the Critical Path Method Schedule required under the Contract.
Such complete fully detailed Critical Path Method Schedule shall be the baseline schedule
against which all updates shall be compared against and neither the Critical Path Items,the
Contractor Schedule Milestones,nor the Owner Milestones may be revised except in
accordance with Article 17.Contractor shall advise Owner of any delays to any Critical
Path Items of more than fifteen (15)days and promptly provide Owner with the reasons for
such delay.In connection therewith,Contractor shall employ a project management system
able to provide schedule monitoring and analysis which shall include a comparison of the
original Critical Path Method Schedule with the actual progressfor each time period with all
variances noted.If any of the Critical Path Items,Contractor Schedule Milestones,Owner
Milestones,or Project Guaranteed Dates are adjusted pursuant to Article 17,the system
shall also provide a comparison of the revised Critical Path Method Schedule with actual
progress.Schedule analysis shall include a determination of the impact of such variance,if
material,on the Contractor's ability to meet the Project Guaranteed Dates and Contractor
ScheduleMilestones and,if applicable,any action necessary to correct the variance.
Utilizing the critical path method,Contractor shall continually be aware of factors that are
delaying or that could delay the achievement of a Contractor Schedule Milestone or
O Substantial Completion and shall take all commercially reasonable and prudent remedial
actions within its control to eliminate or minimize schedule delays including overtime for
the employees of Contractor and Subcontractors and the assignment of additional personnel
and/or other resources.During construction,the Contractor will update its Critical Path
Method Schedule to reflect the current status of the Work.At a minimum,the updates will
be performed and provided to Owner on a monthly basis as part of the Project Progress
Report.
4.27 Project Progress Report.Contractor shall prepare a monthly Project Progress Report
following the format of Exhibit "A",Section 19 and submit it to Owner within ten (10)days
after the end of each reporting period and as part of the Contractor's Invoice submitted
pursuant to Section 7.1.In addition,Contractor shall keep,and furnish to Owner at Owner's
request,such information as Owner may reasonably require to determine that the Work is
progressing according to the Critical Path Method Schedule and for the purpose of
confirming that Progress Payments are due hereunder,including,but not limited to monthly
forecasting and accruals processes acceptable to Owner.Contractor also shall keep daily
logs at the Site and shall provide to Owner copies of weekly reports of actual construction
progress as compared with scheduled progress,which such weekly reports shall include at a
minimum the information required for such weekly reports as described in Exhibit "A",
Section 19 hereto.
4.28 Accident Reports.Provide Owner with written accident reports for accidents that
occur at the Site,prepared in accordance with the Contractor Safety Program and the
requirements of this Contract.Provide Owner with copies of all written communications
with Governmental Authorities and insurance companies (including any notices)with
Both Parties hase caused an ndividual with the requisite authorit to acknowledge this and each page of this t entract prior to execution
Contractor imtial t ompany Initial
Rocky Mountain Power
Exhibit No.52 Page 147 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
respect to accidents that occur at the Site or the Contractor Yard Site or in connection with
the performance of the Work,and thereafter provide such written reports relating thereto as
Owner may reasonably request.
4.29 Punchlist.On a weekly basis after the Substantial Completion Date,revise and update
the Punchlist and schedule and budget therefor as initially prepared in accordance with
Section 15.1(e).After the Substantial Completion Date,Contractor shall complete each
item of Work set forth on the Punchlist within the scheduled time period for such item as
agreedto pursuant to Section 15.l(e).
4.30 Measurements.Exclusively use the U.S.Customary System units of measurement in
all specifications,drawings,and other documents.
4.31 Meetings.Schedule and conduct periodic meetings with Owner in accordancewith the
requirements of Exhibit "A"before mobilization,at Contractor's ofTice or such other
location as the Parties may agree,and after mobilization,at the Site,or such other location
as the Parties may agree,for the purpose of reviewing the progress of the Work and
adherenceto the Critical Path Method Schedule.The frequency of such meetings shall be in
accordance with the frequency described in the Exhibits or as established and modified,
from time to time,by mutual agreement of Owner and Contractor;provided,however,
O Owner shall be entitled to require that meetings occur as frequently as weekly.If Owner
requests that Contractor cause a representative of any Subcontractor to attend any such
meeting,then Contractor shall cause a representative of such Subcontractor to attend such
meeting.
4.32 Parts.Contractor shall for its own account,provide all parts needed for construction,
commissioning and testing of the Project.Contractor shall provide the spare parts identified
in Exhibit "A",Section 21 ("Spare Parts")to be provided by Contractor and the cost of such
Spare Parts is included in the Contract Price.Contractor shall also provide the pricing for
the parts in accordance with the requirements set out in Exhibit "A",Section 21.In
addition,Contractor shall use reasonableefforts prior to ordering an item of Equipment to
deliver to Owner reasonably in advance of placing such order a schedule describing any
additional spare parts relating to such item of Equipment that the Contractor or
Subcontractor reasonably suggests to be purchased with the Equipment along with the price
for such part(s).
Contractor agrees that any part (whether provided by Contractor or Owner)that is
incorporated into the Project by Contractor shall be covered under the Project Warranties
and the other terms of the Contract,notwithstanding that such part may not have been
provided or procured by Contractor.
4.33 Hazardous Materials.
(a)Contractor's Obligations.Contractor shall comply with the obligations in Exhibit
"A"with respect to Hazardous Mate3rials.
Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract prior to execution.
Contractor Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 148 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
(b)Contractor's Responsibility.Contractor shall be responsible for all Losses arising
from Hazardous Materials being delivered to,brought to or used at the Site or
Contractor Yard Site by Contractor,Subcontractor or anyone employed by them,
except those for which Owner is responsible pursuant to Section 3.6,including the
costs of:(i)the permitting,storage,transportation,processing or disposal of
Hazardous Materials,(ii)the remediation of any environmental condition caused by
such Hazardous Materials,and (iii)any fines or penalties imposed by any
Governmental Authority.Without limiting the generality of foregoing,Contractor
shall be responsible for any Losses relating to the disposal,discharge,disturbance or
release of Hazardous Materials at or in the vicinity of the Site or Contractor Yard Site
by Contractor (or otherwise present at or in the vicinity of the Site)as a result of
Contractor's or Subcontractor's negligence or failure to comply with the terms of this
Contract.
(c)Procedures Upon Discovery.If Contractor discovers,encounters or is notified of the
existence of any Hazardous Materials at the Site (but excluding any Hazardous
Materials brought to the Site by Contractor or a Subcontractor and being used by
Contractor or a Subcontractor in compliance with Applicable Laws or any Hazardous
Materials that are being stored at the Site by Owner in compliance with Applicable
Laws),then:
(i)Contractor shall as promptly as reasonably possible cease all Work in any
area affected thereby;
(ii)Contractor shall promptly give Notice to Owner thereof and cordon off or
otherwise barricade the area containing such Hazardous Materials unless
instructed otherwise by Owner;and
(iii)Contractor shall promptly provide Owner with such written reports
relating thereto as Owner may reasonably request.
(d)Contractor's Right to a Change in Work.Contractor shall not be entitled to any
extension of time,additional compensation or a Change in Work hereunder for any
delay or costs incurred by Contractor as a result of the existence of Hazardous
Materials for which Contractor is responsible pursuant to this Section 4.33.However,
should Contractor encounter Hazardous Materials at the Site which are not
Contractor's responsibility pursuant this Section 4.33,then Contractor shall be
entitled to a Change in Work in accordancewith Article 17.
4.34 Design of Project.Contractor shall further design and construct the Project so that it
will allow operation of the Project and each of its component parts over the full range of
operating and ambient conditions specified in Exhibit "A"while meeting Applicable
Laws,Applicable Permits and Industry Standards.
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Both Parties hate caused an indi dual unh the requisuè authon:)to acknow.edge thw and each page o this Contract pnor to execunon
Contractor Innial t ompan)lnina
Rocky Mountain Power
Exhibit No.52 Page 149 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
All engineering work of the Contractor (or any Subcontractor)requiring certification
shall be certified and all Drawings and Specifications requiring sealing shall be sealed in
each case by a professional engineer licensed and properly qualified to perform such
engineering services in the state in which such portion of the Work is performed and in
all appropriate jurisdictions and such engineers and their qualifications shall be subject to
Owner's review hereunder.Upon Owner's request,Contractor shall provide Owner with
the resumes and other information regarding such Persons.Contractor shall use,and
shall cause its Subcontractor to use,staff that are certified,professional engineers in the
states in which the Work is to be performed in relation to all mechanical,electrical and
civil engineering Work performed in the respective states.
4.35 Audit.Contractor shall keep such full and detailed records,books and other
documentation in accordance with Industry Standards and with generally accepted
accounting principles as may be necessary for substantiation of all Contractor claims for
additional compensation or Changes in Work.Owner and its respective designees,shall
be afforded access to,be allowed to inspect and audit,and be allowed to make copies of
such books,records and documentation.Such books,records and documentation will be
available in the United States at Contractor's regular place of business during normal
O working hours.Contractor shall preserve all such books,records and documentation for a
period of seven (7)years after the Final Payment,or longer where required by Applicable
Laws.These requirements shall also apply to all Subcontractors and materials suppliers.
The audit rights provided herein shall apply to the full extent necessary to verify any
cost-based components of Contractor's pricing,as well as any portion of the guaranteed
fixed pricing that is subject to commodity pricing adjustments pursuant to Section 6.1.1.
4.36 Operation of Existing Facilities.Contractor specifically acknowledges and agrees
that the Work must be performed by the Contractor within the operating parameters
relating to the Transmission Grid as described in Exhibit "A".In addition,Contractor
agrees that it shall plan and perform the Work in such a manner to prevent disruption to
the operations of any generating facility and the Transmission Grid,unless otherwise
expressly approved in writing by Owner.In the event of an emergency on the
Transmission Grid or during any period for which Contractor has rendered a portion of
the Transmission Grid inoperable or impaired,within 24 hours'notice from Owner,
Contractor shall remove such condition in order to render the Transmission Grid fully
operable.
4.37 Delivery of Documents.Owner and Contractor agree that the timely submission
to Owner by Contractor of certain engineering Contractor Deliverables is an important
aspect of this Contract.In the event Contractor's failure to timely provide Contractor
Deliverables in accordance with the Deliverables Schedule (as established in accordance
with Section 12.4)results in Owner's failure to obtain an Owner Acquired Permit or
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Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract prior to execution.
Contractor:lnitial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 150 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
otherwise fulfill its obligations to Contractor under this Contract,then Contractor shall
not be entitled to a Change in Work as a result of such delay.
4.38 Site Conditions.Neither Owner nor any of its agents or representatives have
made nor shall they make any express or implied warranty to Contractor as to the
accuracy and completenessof any test,inspection,report or other information concerning
the condition of the Site and Owner shall not be liable to Contractor for any such
information provided by Owner or its agents or representatives.
Contractor specifically represents and warrants that it has carefully examined the
Agreement and understands the Agreement and Contract Documents,including all
Drawings,Scope of Work,Plans and Specifications,and special conditions,if any.
Contractor further representsthat it has inspected the sites and routes of the Work and is
thoroughly acquainted with all conditions that may be encountered in performing the
Work.Contractor has considered all matters and factors that could affect the Work,or the
cost thereof,or the schedule to complete the Work.No claim for either additional
compensation or extension of time alleging changed,concealed or unknown conditions
will be allowed or recognized by Company.In relation to the Work and the project site,
Contractor has taken into account all facets of the job including the required access.
Contractor has investigated (or will be deemed to have investigated)the Site and each
other location where any portion of the Work shall be performed and surrounding
locations,including both surface and subsurface conditions and has satisfied itself with
respect to the nature and location of the Work and the general and local conditions in and
around the Site with respect to the environment,transportation,access,waste disposal,
handling and storage of materials,availability and quality of electric power,availability
and quality of water,availability and quality of roads,climatic conditions and seasons,
physical conditions at the Site and the surrounding area as a whole,topography and
ground surface conditions,sound attenuation conditions,subsurface geology and
conditions,nature and quantity of surface and subsurface materials to be encountered
(excluding Hazardous Materials)but including equipment and facilities,and requirements
of all Governmental Authorities with regard to flora,fauna and cultural conditions
needed before and during performance of all Contractor's obligations under this Contract
(the foregoing,collectively,the "Site Conditions").
In the event that Contractor performs any geotechnical studies,Contractor shall promptly
provide Owner with a copy of such studies and/or reports.
Contractor specifically acknowledges and accepts the foregoing Site Conditions and
agrees that no Project Guaranteed Date shall be extended,the Contract Price shall not be
modified,and Contractor shall not be entitled to request or be granted any Change in
Work,as a result of any such Site Conditions.Further,should the Site Conditions be at
variance with the condition of the Site indicated by any reports or other information
furnished to Contractor by Owner or an3y5-fits representatives(including,but not limited
Both Parties have caused an mdnidual with the requ:sne authonti to acknowledge this and each page of this Contract poor to execunon.
Rocky Mountain Power
Exhibit No.52 Page 151 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
to any unknown physical conditions below the surface of the ground or water differing in
any way from those ordinarily encountered and generally recognized as inherent in work
of the character provided for in this Contract)neither the Contract Price nor any other
Project Guaranteed Dates shall be adjusted,and Contractor shall complete the Work for
the Contract Price.
4.39 Non-Conforming Work.If Contractor is notified of or discovers any Defect,
Contractor shall,at Contractor's sole cost and expense,correct such Defect and promptly
provide Notice to Owner that such corrective measures have been completed.If
Contractor discovers a defect in Owner's Engineer's design or engineering,Contractor
shall immediately provide Notice to Owner.Any disagreementsabout the root cause of
any Defect shall be resolved in accordancewith the provisions of Article 36.
4.40 [Joint and Several Liability.][The Contractor means each joint venture partner
which shall undertake the duties and obligations of the Contractor under this Contract.
Each joint venture partner has the duty and obligation,individually,to fully perform all
of the duties and obligations of Contractor under this Contract.Owner may enforce the
terms of this Contract against one or more joint venture partners,individually or
collectively,upon breach of Contractor's performance hereunder.Even though each joint
O venture partner has assumed the duties and obligations of Contractor under this Contract
on a joint and several basis,the Contractor is referred to herein as if singular in number.
Without limiting the generality of the foregoing,the Owner shall be entitled to
conclusively rely on any Notice or other correspondence received,or performance
tendered by a Joint Venture Partner (relating to or in connection with the Project or this
Contract)or the Contractor without any duty on the part of Owner to make an inquiry
into the authority of the Contractor or such Joint Venture Partner to give such Notice or
other correspondence or tender such performance,and any Notice or correspondence
delivered or performance taken by one of the Joint Venture Partners (relating to or in
connection with the Project or this Contract)or the Contractor shall validly and legally
bind the others.][If applicable.]
5.WARRANTIES AND REPRESENTATIONS
5.1 Of Contractor.Contractor represents and warrants to Owner that:
5.1.1 Organization,Standing and Qualification.Contractor is a ,duly
organized,validly existing and in good standing under the laws of the State of
,and has,or will have by the date it commences the applicable Work,full
power and authority to engage in the business it presently conducts and
contemplates conducting in accordance with all Applicable Laws,and is or will
be duly licensed or qualified and in good standing under the laws of all states in
which Work is to be performed and in each other jurisdiction wherein the nature
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution
Contractor:Initial Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 152 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
of the business transacted by it makes such licensing or qualification necessary
and where the failure to be licensed or qualified would have a material adverse
effect on its ability to perform its obligations hereunder.Contractor shall furnish
Owner with a certified copy of its permit to transact business in each state and
other jurisdiction wherein the nature of the business transacted by Contractor
makes such licensing or qualificationnecessary prior to commencing Work under
the Contract.Owner may,at its option,withhold from any payment hereunder
and remit to the relevant Governmental Authority such sums as are required by
Applicable Laws and has provided Owner with a copy of such certificate.In
addition,the Owner may,as required by Applicable Laws,withhold the Final
Payment of the Contract as a guaranteethat sales and use Tax will be paid in the
event that Owner has been provided notice by a Governmental Authority pursuant
to Applicable Laws to withhold funds.Contractor shall make such returns and
pay such Tax on account of payments received under this Contract as Applicable
Laws may require,and shall hold Owner harmless on account of its failure to
withhold any amount required by Applicable Laws from any payment made
hereunder or on account of Contractor's failure to pay any such Tax to a
Governmental Authority.
5.1.2 Enforceable Contract.This Contract has been duly authorized,executed and
O delivered by Contractor and constitutes the legal,valid and binding obligation of
Contractor,enforceable against Contractor in accordancewith its terms.
5.1.3 Due Authorization.The execution,delivery,and performance by Contractor
of this Contract will not violate or conflict with:(a)any ApplicableLaws;(b)any
covenant,agreement,or understanding to which it is a party or by which it or any
of its properties or assets is bound or affected;or (c)its organizational documents;
and will not subject the Project or any component part thereof or the Site or any
portion thereof to any lien other than as contemplated or permitted by this
Contract.
5.1.4 Government Approvals.No authorization,approval,exemption,or consent
of or by any Governmental Authority or other Person is required in connection
with the authorization,execution,delivery,and performance of this Contract by
Contractor.The Contractor Acquired Permits either have been obtained by
Contractor and are in full force and effect on the Effective date of each Release or
will be obtained by Contractor and will be in full force and effect on or prior to
the date on which they are required,under Applicable Laws,to be in full force
and effect,so as to permit Contractor to commence and prosecute the Work to
completion in accordancewith the Critical Path Method Schedule.
5.1.5 No Suits,Proceedings.There are no actions,suits,proceedings,or
investigations pending or,to Contractor's knowledge,threatened against it at law
or in equity before any court (United States or otherwise)or before any
Governmental Authority (wheth3er-or not covered by insurance)that individually
Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial ___Company Initial
Rocky Mountain Power
Exhibit No.52 Page 153 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vall
O
or in the aggregate could result in any materially adverse effect on the business,
properties,or assets or the condition,fmancial or otherwise,of Contractor or in
any impairment of its ability to perform its obligations under this Contract.
Contractor has no knowledge of any violation or default with respect to any order,
writ,injunction,or decree of any court or any Governmental Authority that may
result in any such materially adverseeffect or such impairment.
5.1.6 Patents.Other than those patents,trademarks,service marks,tradenames,
copyrights,licenses,franchises and permits included in Owner Acquired Permits,
Contractor owns or has the right to use all patents,trademarks,service marks,
tradenames,copyrights,licenses,franchises,and permits necessary to perform the
Work without conflict with the rights of others and to enable Owner to operatethe
Project without infringement thereof.
5.1.7 Business Ethics.Contractor,its employees,officers,agents,representatives
and Subcontractors shall at all times maintain the highest ethical standards and
avoid conflicts of interest in the performance of Contractor's obligations under
this Contract.In conjunction with its performance of the Work,Contractor and its
employees,officers,agents and representatives shall comply with,and cause its
Subcontractors and their respective employees,officers,agents and
O representativesto comply with,all applicable laws,statutes,regulations and other
requirements prohibiting bribery,corruption,kick-backs or similar unethical
practices including,without limitation,the United States Foreign Corrupt
Practices Act,the United Kingdom Bribery Act 2010,and Owner Code of
Business Conduct attached as Exhibit C-1.Without limiting the generality of the
foregoing,Contractor specifically represents and warrants that neither Contractor
nor any Subcontractor employees,officers,representatives or other agents of
Contractor have made or will make any payment,or have given or will give
anything of value,in either case to any government official (includingany ofScer
or employee of any governmental authority)to influence his,her,or its decision
or to gain any other advantage for Owner or Contractor in connection with the
Work to be performed hereunder.Contractor shall maintain and cause to be
maintained effective accounting procedures and internal controls necessary to
record all expenditures in connection with this Contract and to verify Contractor's
compliance with this Article.Owner shall be permitted to audit such records as
reasonably necessary to confirm Contractor's compliance with this Article.
Contractor shall immediately provide notice to Owner of any facts,circumstances
or allegations that constitute or might constitute a breach of this Article and shall
cooperate with Owner's subsequent investigation of such matters.Contractor
shall indemnify and hold Owner harmless from all fines,penalties,expenses or
other losses sustained by Owner as a result of Contractor's breach of this
provision.The Parties specifically acknowledge that Contractor's failure to
comply with the requirements of this Article shall constitute a condition of default
under this Contract.
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Both Panies hate caused an indmdual with the requisse authern to acknancedge th:s and each page of this Contract prior to execunon
Rocky Mountain Power
Exhibit No.52 Page 154 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
5.1.8 Owner-Provided Information.Owner or its agents may provide or may have
provided Contractor or Subcontractor with copies of certain studies,reports or
other information (including oral statements)and Contractor acknowledges that
all such documents or information have been or will be provided as background
information or as an accommodation to Contractor.Contractor further
acknowledges that neither Owner nor any of its agents makes any representations
or warranties with respect to the accuracy of such documents or the information
(includingoral statements)or opinions therein contained or expressed.Contractor
further represents and warrants that it is not relying on Owner or Owner's agents
for any information,data,inferences,conclusions,or other information with
respect to Site Conditions,including the surface and sub-surfaceconditions of the
Site and the surrounding areas.
5.1.9 Financial Condition.Contractor is financially solvent,able to pay its debts
as they mature,and possessed of sufficient working capital to complete its
obligations under this Contract.Contractor is able to perform the Pre-
Construction Services,furnish the Equipment,labor,and design services needed
for the Project,is experienced in and competent to perform the Work,both
construction and design,contemplated by this Contract,and is qualified to do the
Work.
5.1.10 [Joint Venture.][The Contractor is a joint venture and [each joint venture
partner]have the power and authority to enter into this Contract.Each [joint
venture partner]individually,has the duty and obligation to fully perform all of
the duties and obligations of Contractor under this Contract.Any Notice or
correspondence delivered or performance taken by one of either [joint venture
partner]or the Contractor shall validly and legally bind the others on a joint and
several basis.][If applicable.]
5.1.Of Owner.Owner covenants,represents,and warrants to Contractor that:
5.2.1 Organization,Standing and Qualification.Owner is a limited liability
company duly organized,validly existing,and in good standing under the laws of
the State of Delaware,has full power to engage in the business Owner presently
conducts and contemplates conducting,and is and will be duly licensed or
qualified and in good standing in each jurisdiction wherein the nature of the
business transacted by it makes such licensing or qualification necessary and
where the failure to be licensed or qualified would have a material adverse effect
on its ability to perform its obligations hereunder.
5.2.2 Enforceable Contract.This Contract has been duly authorized,executed
and delivered by Owner and constitutes the legal,valid,and binding obligation of
Owner,enforceable against Owner in accordancewith its terms.
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution.
Contractor lnitial Companv:Initial
Rocky Mountain Power
Exhibit No.52 Page 155 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
5.2.3 Due Authorization.The execution,delivery,and performance by Owner
of this Contract will not conflict with:(a)any Applicable Laws;(b)any
covenant,agreement,or understanding to which it is a party or by which it or any
of its properties or assets is bound or affected;or (c)its certificate of
incorporation or by-laws.
5.2.4 Government Approvals.No authorization,approval,exemption,or
consent of or by any Governmental Authority or other Person (other than the
Applicable Permits)is required in connection with the execution,delivery,and
performance of this Contract by Owner and if not obtained will be obtained by
Owner prior to the date on which it is required under Applicable Laws to be in
full force and effect.The Owner Acquired Permits either have been obtained by
Owner and are in full force and effect on the Effective date of each Release or
will be obtained by Owner and will be in full force and effect on or prior to the
date on which they are required,under Applicable Laws,to be in full force and
effect;and in the event such Owner Acquired Permit is not obtained by the
applicable Owner Milestone,Contractor's sole remedy for a breach of the
representationsin this Section 5.2.4 shall be a Change in Work in accordancewith
Article 17.
O 5.2.5 No Suits,Proceedings.There are no material actions,suits,proceedings,or
investigations pending or,to its knowledge,threatened against it at law or in
equity before any court (United States or otherwise)or before any Governmental
Authority (whether or not covered by insurance)that individually or in the
aggregatecould result in any materially adverseeffect on the business,properties,
or assets or the condition,fmancial or otherwise,of Owner or in any impairment
of its ability to perform its obligations under this Contract.Owner has no
knowledge of any violation or default with respect to any order,writ,injunction,
or any decree of any court or any Governmental Authority that may result in any
such materially adverseeffect or such impairment.
5.2.6 Business Practices.Owner will not,and Owner will direct its employees,
agents,and subcontractors,and their employees and agents to not,make any
payment or give anything of value to any government official (including any
officer or employee of any Government Authority)to influence his,her,or its
decision or to gain any other advantage for Owner or Contractor in connection
with the Work to be performed hereunder.Neither Owner nor any of its
employees or agents shall take any action that violates the United States Foreign
Corrupt Practices Act or any similar Applicable Laws.Owner shall immediately
give Notice to Contractor of any violation (or of the direction described in the first
sentence hereof)and shall indemnify and hold Contractor harmless for all Losses
arising out of such violation.
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Both Parties have caused an induidual with the requisite authority to acknowledge this and each page of this Contract prior to execution
Contractor Initial Cornpant lnitial
Rocky Mountain Power
Exhibit No.52 Page 156 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
6.COST OF WORK
6.1 Contract Price.As full compensation for the Work,Owner shall pay to Contractor
the fixed price amount specified in each Release.(the "Contract Price").The Contract
Price shall be modified only by (i)a Change in Work approved in accordance with
Article 17,or (ii)per Section 6.l(a).
The Contract Price shall be paid in accordancewith Article 7.
6.1.1 Significant Decrease in Market Prices for Key Commodities.Owner shall be
entitled to a decrease in the Contract Price,if the price per unit Contractor pays,either directly or
indirectly,for aluminum and carbon steel as raw material inputs (not finished products)("Key
Commodities")for the manufacture of conductor wire,engineered poles and lattice towers is less
than the Assumed Price,as hereinafter defined.Exhibit "R"identifies the per unit price (the
"Assumed Price")for the Key Commodities included by the Contractor as part of its Contract
Price.Such Assumed Price is based on certain indexes specified in Exhibit "R".In the event that
the price actually paid by Contractor for a Key Commodity ("Actual Price")on a per unit basis is
less than the Assumed Price for such Key Commodity by ten percent (10%)or more,as
determined through reference to the pertinent index identified in Exhibit "R"and associated
O purchase documentation,then the Contract Price shall be reduced by an amount equal to one-half
the difference between the applicable Assumed Price and the Actual Price multiplied by the
actual quantity purchased by Contractor.The Parties agree to review and document the status of
any potential Contract Price decrease resulting under this Section 6.1.1 on a quarterly basis and
also when Contractor estimates that substantially ninety-five percent (95%)of each Key
Commodity have been purchased.Full reconciliation of Key Commodities price adjustment
under this Section 6.1.1 shall be documented on a Change in Work form pursuant to Article 17
and shall be a condition precedent to Final Completion.Contractor shall provide owner with any
documentation (including materials subcontracts,and purchase orders at any tier of
Subcontractor or Supplier)for Owner to confirm existence and extent of Key Commodities price
adjustments under this Contract.In addition,Contractor shall use its commercially reasonable
efforts to include in its agreementswith the Suppliers of the Key Commodities a provision that
provides for a purchase price decrease in the event the underlying commodity prices affecting the
sale price for such Key Commodity decrease prior to the date such Key Commodities are ordered
(or if applicable,the date such Key Commodities are delivered if the price is determined under
the applicable agreement as at the time of delivery).
6.2 All Items of Work Included.The Contract Price includes payment for:(a)all costs
of Equipment,temporary equipment,materials,labor,transportation,engineering,design
(if applicable)and other services relating to Contractor's performance of its obligations
under this Contract and the Work (including any intellectual property rights licensed
under this Contract,expressly or by implication)provided by Contractor or such
Subcontractors;(b)any duties,levies,imposts,fees or charges of any kind (whether in
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Both Panies have caused an individual with the requisite authoritv to acknowledge this and each page of this Contract prior to execution
Contractor Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 157 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
the United States or elsewhere and including any of the foregoing related to the
importation of any items into the United States)arising out of Contractor's or any such
Subcontractor's performance of the Work;and (c)any duties,levies,imposts,fees,
royalties or charges of any kind (whether in the United States or elsewhere and including
any of the foregoing related to the importation of any items into the United States)
imposed on Contractor or its Subcontractors with respect to any Equipment,materials,
labor,or services provided under this Contract.
6.3 Taxes;Tax Administration and Payment.
(a)Responsibility for Taxes.The Contract Price includes payment for all taxes
of any nature whatsoever including all:(i)United States federal,state,regional,
and local taxes,national and foreign taxes,goods and services taxes,personal
property taxes,sales and use taxes (including sales and use tax on the purchase,
sale or use of all materials,supplies,Equipment and machinery);(ii)property
taxes on all materials,supplies,equipment and machinery not intended to be
transferred to Owner hereunder;(iii)occupational,excise,unemployment,value-
added,gross receipts and income taxes;and (iv)any and all other taxes,effective
or enacted as of the Effective date of each Release or thereafter,each as imposed
on Contractor or its Subcontractors or the Work (collectively referred to as
O "Taxes");provided,however,the Contract Price shall not include any real
property taxes on the Site or the Project,which shall be borne by Owner.With
the exception of real property taxes not included in the Contract Price as
described above in this paragraph,the Contract Price shall not be increased with
respect to any of the foregoing Taxes or with respect to any withholdings in
respect of any of the foregoing Taxes that Owner may be required to make.
Calculation of Tax within the Contract Price is the sole responsibility of the
Contractor and is provided for informational purposes only.Any errors or
omissions in calculating Tax shall be at the Contractor's risk.
(b)Tax Administration and Payment.Contractor shall,in accordance with
Applicable Laws,timely administer and timely pay all Taxes that are included in
the Contract Price and timely furnish to the appropriate taxing authorities all
required information and reports in connection with such Taxes.Contractor shall
provide to Owner information to confirm the correct Taxes have been paid on the
Work by the Contractor and such further Tax information reasonably requestedby
Owner.
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Both Parties have caused an individual with the requisite authontv to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial Companv:Initial
Rocky Mountain Power
Exhibit No.52 Page 158 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
7.TERMS OF PAYMENT
Payments to Contractor shall be made as follows:
7.1.Contractor's Invoices.
(a)Following the issuance of a Limited Notice to Proceed,on or about the tenth
(10th)day of each month,Contractor shall submit a Contractor's Invoice in the
form of Exhibit "F"to Owner for the Progress Payment Amount for Pre-
Construction Services performed during such period in accordance with the
requirements and provisions set forth in Exhibit "D".Owner shall pay undisputed
amounts so invoiced within thirty(30)days.
Each Contractor's Invoice submitted in respect of the Pre-Construction Services
shall include Contractor's Partial Release and Waiver of Liens and Claims.The
provisions of Article 7 apply to Contractor's Invoices in respect of Pre-
Construction Services.
(b)Following the issuance of a Full Notice to Proceed,on or about the tenth (10th)
O day of each month,Contractor shall submit a Contractor's Invoice in the form of
Exhibit "F"to Owner for the Work performed thereunder in the then immediately
preceding month.For clarity,Contractor shall submit invoices for Pre-
Construction Services separately from Work performed that is not Pre-
Construction Services.
In all cases,Contractor specifically agrees that it shall not request in any Contractor's
Invoice the payment of any sum attributable to Work which has been rejected by
Owner or Contractor or which otherwise constitutes or relates to a Subcontractor's
application for payment,billings or invoices which Contractor disputes or for any
other reason does not intend to pay in accordance with the terms of Contractor's
agreementswith its Subcontractors.Subject to the provisions of this Article 7,Owner
shall pay Contractor each Progress Payment described on the Progress Payment
Schedule upon Contractor's completion of the corresponding discrete portion of
Work.
7.2.Certification by Contractor.Each Contractor's Invoice:
(a)Shall provide documentary evidence in the form of a written progress report,in
accordance with Section 4.27 to describe:(i)the completion of the Work to
maintain the Interim Progress Milestones;(ii)the related Progress Payment
Schedule and Amounts set forth on the Progress Payment Schedule that are then
due as of the end of the immediately preceding month;and (iii)any other amounts
then payable by Owner to Contractor under Article 17 or any other provision
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 159 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
hereof and,without limiting Owner's right to dispute any amounts requested for
payment;
(b)Shall include Contractor's Partial Release and Waiver of Liens and Claims;and;
(c)Shall include the Project Progress Report and Critical Path Method Schedule in
accordance with Section 4.26 and Section 4.27,except to the extent they have
previously been provided for the applicable month;
It being understood and agreed by Contractor that any Contractor's Invoice not in
compliance with the Project Payment Schedule or that has been demonstrated to not
be in compliance with the Interim Progress Milestones described in Exhibit "G",and
in Exhibit "G"Attachment 9 shall not,to the extent of such deficiency,constitute a
valid request for payment.Each Progress Payment Amount shall be due and payable
only to the extent it is supported by documentary evidence of compliance with the
Interim Progress Milestones set forth in Exhibit "G"Attachment 9,it being
acknowledged and understood that no Progress Payment shall be made for any
partially or improperly completed individual items of Work or for Work that remains
subject to Owner's review and inspection rights in accordancewith Section 12.5.
Notwithstanding the foregoing,in no event shall the cumulative amount actually paid
with respect to any period of time exceed the maximum cumulative amount payable
for such period in accordancewith the Progress Payment Schedule.
7.3 Subcontractor Statements.Accompanying each Contractor's Invoice,Contractor
shall submit a Partial Release and Waiver of Liens and Claims from each Major
Subcontractor whose Work is covered under such Contractor's Invoice.
7.4 Owner Review;Payments.Without limiting Owner's rights of review under Article
land Article 12,within fourteen (l4)days after receipt by Owner of a Contractor's
Invoice and all accompanying documentation required by Section 7.2,Owner shall:
(a)determine whether the Interim Progress Milestones described in Exhibit G
Attachment 9 remain valid and not subject to the provisions of Section 8.3;(b)determine
whether the Work performed conforms with the requirements of this Contract;
(c)determine whether the Contractor's Invoice has been properly submitted;and
(d)determine and give Notice to Contractor concerning any invoiced amount that is in
dispute and the basis for such dispute.Owner will pay Contractor,within thirty (30)days
after receipt by Owner of Contractor's Invoice,all Progress Payment Amounts and other
amounts then payable and not in dispute.Failure by Owner to pay any amount in dispute
and identified pursuant to clause (d)above until resolution of such dispute pursuant to
Section 7.7 shall not alleviate,diminish,or modify in any respect Contractor's
obligations to perform the Work in accordance with this Contract.Contractor shall
promptly pay each Subcontractor directly contracting with Contractor the amount to
which said Subcontractor is entitled un4deritsagreement with Contractor with respect to
Both Parnes have caused an indmdual nah the requisite authorit to acknen]edge tivs and each page of ths Contract prior to execution
(ontractor Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 160 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
the Work covered by such payment by Owner in accordance with the terms of its
subcontract with such Subcontractor.Contractor shall,by an appropriate agreement with
each Major Subcontractor,contractually require each such Subcontractor to make
payments to its subcontractors in a similar manner.
7.5 Retainage.Owner shall retain and withhold payment of ten (10%)of all payments
made to Contractor pursuant to Section 7.4 (the "Retainage")other than the Final
Payment.Such amount shall be held by Owner and any interest thereon shall accrue for
the account of Owner and not Contractor.Alternatively and in lieu of the above,no
Retainage will be withheld by Owner provided Contractor posts an irrevocable
transferable letter of credit issued for the benefit of the Owner by a Qualified Bank (the
"Retainage LOC")not less than an amount equal to the Retainage (had it been withheld
by Owner in accordancewith the first paragraph of this Section 7.5).
7.6 Final Payment.Upon the delivery of Owner's Certificate of Final Completion in
accordance with Section 15.5(11 Contractor shall submit a final Contractor's Invoice (the
"Final Contractor's Invoice")which shall set forth all amounts due to Contractor that
remain unpaid (including amounts relating to the Punchlist Items),and upon approval
thereof by Owner,Owner shall pay to Contractor the amount due under such Final
Contractor's Invoice ("Final Payment").Subject to achievement of Final Completion
O pursuant to this Contract,Final Payment shall include release of the Retainage or return
and cancellation of the Retaining LOC (as applicable).Owner shall have no obligationto
make Final Payment until Contractor shall have delivered the following items to Owner:
(a)With respect to each Major Subcontractor the Final Release and Waiver of Liens
and;and
(b)With respect to Contractor,
(i)A certification to the effect that:
(x)Contractor has been paid all amounts owing or that may become owing
to Contractor with respect to the Project and the performance of the Work
except for amounts requestedin the Final Contractor's Invoice,and
(y)Contractor has paid all amounts that Contractor will be required to pay
in connection with the performance of the Work,including all amounts to
be paid to any Subcontractor with respect to the Project and the
performance of the Work,except for amounts that in the aggregate shall be
less than the Final Payment;
(ii)The Final Release and Waiver of Liens and Claims;and
(iii)The Warranty LOC.
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial __Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 161 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
7.7 Disputes.Contractor's acceptance of any payment shall not be deemedto constitute a
waiver of amounts that are then in dispute.Contractor and Owner shall use their
reasonable efforts to resolve all disputed amounts as expeditiously as possible in
accordance with the provisions of Article 36.
7.8 Method of Payment.All payments to be made to Contractor under this Contract shall
be paid in Dollars and shall be paid by electronic funds transfer in immediately available
funds on the date due or,if such date is not a Business Day,on the immediately
succeeding Business Day to the account as may be designated by Contractor from time to
time by Notice to Owner in accordancewith Article 33.
7.9 Holdbacks.Any provision hereof to the contrary notwithstanding,upon the
occurrence and continuance of any of the following events,Owner,upon Notice to
Contractor,may (but shall have no obligation to)withhold or retain such portion of any
payment due to Contractor under this Contract to the extent reasonably necessary to
ensure the performance of the Work,to cover Owner's reasonable costs to cover such
event or otherwise protect fully Owner's rights hereunder:
(a)A Contractor Event of Default shall have occurred hereunder as defined in
(b)
Secytionn201;such
payment shall be attributable to Work which shall contain a
Defect or shall not have been performed in accordance with the terms of this
Contract;
(c)Contractor shall have improperly failed to make prompt payments to its
Subcontractors pursuant to the terms of such subcontract for material or labor
used in the Work for which Owner has paid Contractor;
(d)Owner in good faith shall have determined based upon the Critical Path Method
Schedule that Contractor cannot with prompt and reasonable acceleration of the
Work achieve the Project Guaranteed Dates;provided,however,that the amount
withheld or retained on account of this Section 7.9(d)shall not exceed the amount
of the Delay Liquidated Damages which would be payable under Article 16 on
account of the then estimated delay in achieving the Project GuaranteedDates;
(e)Contractor shall have failed to deliver a Schedule Recovery Plan reasonably
acceptable to Owner as set forth in Section 8.3,or Contractor shall have failed to
cause the prosecution of the Work to conform to the Schedule Recovery Plan
approved by Owner;or
(f)Contractor shall have failed to deliver any Contractor Deliverable (prepared by
Contractor in good faith)to Owner on or before the date set forth on the
Deliverables Schedulefor the deliveryof such Contractor Deliverable.
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract pnor to execution.
Contractor Initial Companv lnitial
Rocky Mountain Power
Exhibit No.52 Page 162 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
No payment made hereunder shall be construed to be acceptance or approval of that
part of the Work to which such payment relates or to relieve Contractor of any of its
obligations hereunder.Should any dispute arise with respect to Owner's exercise of
its rights under this Section 7.9,such dispute shall be subject to resolution in
accordance with the expedited payment dispute procedures provided in Article 36.
Notwithstandingthe provisions of Section 20.4 and Article 36,Contractor shall not
have any rights of termination or suspension under Section 20.4 as a result of
Owner's exercise or attempted exercise of its rights under this Section 7.9.
7.10 Application of Monies.Contractor shall use the sums paid to it pursuant to this
Article 7 for the purpose of performing the Work and designing,furnishing,equipping,
testing and commissioning the Project in accordance with this Contract.No provision
hereof shall be construed,however,to require Owner to see to the proper disposition or
application of the monies so paid to Contractor.
7.11 Release of Liability.Acceptance by Contractor of the Final Payment shall constitute
a release by Contractor of Owner,its Affiliates and every officer and agent thereof from
all liens (whether statutory or otherwise and including mechanics'or suppliers'liens),
claims and liability with respect to the payment of the Contract Price or any event or
O circumstance that would entitle Contractor to request a Change in Work in accordance
with Article 17 in respect of any Work performed or furnished in connection with this
Contract,or for any act or omission of Owner or of any Person relating to or affecting
Owner's payment obligations under this Contract,except for unresolved claims for which
Contractor has previously delivered a dispute Notice to Owner and claims which are
based on facts and/or circumstances that arise only after Final Completion;and further
provided that such acceptance shall not constitute a release of Contractor's right to
enforce any provision of this Contract that survives termination of this Contract in
accordance with Section 37.3.No payment by Owner shall be deemed a waiver by
Owner of any obligationof Contractor under this Contract.
7.12 All Payments in Dollars.All amounts in this Contract are expressed in,and all
payments required hereunder shall be paid in Dollars.
8.COMMENCEMENT AND PROSECUTION OF THE WORK
8.1.Limited Notices.
(a)Limited Notice to Proceed.Owner may issue to the Contractor,within each
Release a Limited Notice to Proceed to perform specified services and shall
pay Contractor in accordance with the terms of Exhibit "D"that are applicable
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Both Parties have caused an :ndo idual nah the requisne authorny w ackneniedge the and cach page at the Contract pnor to execunon
Lontractor Initial Lompan inmai
Rocky Mountain Power
Exhibit No.52 Page 163 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
Prior to the Full Notice to Proceed Date,Contractor shall only perform the
activities set forth in a Limited Notice to Proceed.Contractor shall not be
entitled to any payment for activities,services,products or other costs or
expenses incurred outside of the scope set forth in the Limited Notice to
Proceed.Amendments to a Limited Notice to Proceed shall be made in
accordance with the provisions of Article 17,mutatis mutandis.Owner may
terminate a Limited Notice to Proceed at any time,provided that any such
termination shall B terminate this Contract nor shall it affect the other rights,
obligations or agreementsof the Parties set forth in this Contract.Owner shall
pay Contractor for the value of Pre-Construction Services completed (or if not
completed,the reasonable approximation of the portion that has been
completed)as of the date of termination of a Limited Notice to Proceed.
(b)Materials Notice to Proceed.Owner may issue to Contractor,within each
Release a notice to procure certain materials on the Materials Notice to
Proceed Date,thus authorizing Contractor to procure the materials required
under Exhibit A of each Release.
8.2 Full Notice to Proceed.Owner shall provide Contractor with Notice that Contractor is
directed to commence Work under this Agreement ("Full Notice to Proceed")as follows:
(a)Owner shall inform Contractor of the date Owner reasonably anticipates to
issue Full Notice to Proceed,and the date on which Owner provides Contractor
with Full Notice to Proceed shall be the Full Notice to Proceed Date;provided,
however,that the following shall be conditions precedent to Owner's right (but
not obligation)to provide Contractor with Full Notice to Proceed:
(i)Contractor Security.Contractor shall have provided Owner with the
Parent Guarantee,the Performance LOC;and
(ii)Insurance Requirements.Owner and Contractor have each obtained the
insurance required to be provided by each of them in accordance with the
terms of this Contract and shall have provided the other Party reasonable
documentation evidencing such insurance effectuation.
(b)On the Full Notice to Proceed Date,Contractor shall commence and shall
thereafter diligently pursue the applicable Work in accordance with the terms
of this Contract.Contractor expressly agrees that the period of time specified
to complete all Work and the timely achievement of the Project Guaranteed
Dates includes an appropriate allowance for all hindrances and delays
incidental to the Work and no claim shall be made by Contractor for
hindrances or delays for any cause during the progress of the Work,except as
provided under Article 9 and Article 17.
Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract pnor to execution
Contractor:Initial _Companv Initial
Rocky Mountain Power
Exhibit No.52 Page 164 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vall
O
(c)Contractor shall prosecute the Work in accordance with the Critical Path
Method Schedule.Contractor shall cause Substantial Completion and Final
Completion to occur on or before the applicable Project Guaranteed Dates (as
such dates may be extended pursuant to Article 17 or Article 22).
8.3 Schedule Recovery Plan.If Contractor fails,other than by reasons not attributable to
Contractor,to stay within the number of days specified in each Release of the schedule
(as determined using the Critical Path Method Schedule)for achieving the applicable
Project Guaranteed Dates,then Contractor shall,within five (5)days after Contractor
becomes aware of such delay,submit for approval by Owner,a written plan (the
"Schedule Recovery Plan")to complete all necessary Work to achieve such Project
Guaranteed Dates not later than thirty (30)days after the applicable Project Guaranteed
Dates,including a revised Critical Path Method Schedule.Within five (5)days after
receipt of the proposed Schedule Recovery Plan,Owner shall deliver written approval or
disapproval of such plan to Contractor.If Owner disapproves the proposed Schedule
Recovery Plan and provides comments to the Schedule Recovery Plan,Contractor shall
resubmit a revised Schedule Recovery Plan addressingsuch Owner comments within five
(5)additional days.Review and/or approval by Owner of a Schedule Recovery Plan
shall not be deemed in any way to have relieved Contractor of its obligations under this
O Contract relating to the failure to achieve Substantial Completion or Final Completion by
the applicable Project Guaranteed Date,be a basis for an increase in the Contract Price,
or limit the rights of Owner under Section 16.1.
9.FORCE MAJEURE.
9.1 Events of Force Majeure.No failure or omission to carry out or observe any of the
terms,provisions,or conditions of this Contract shall give rise to any claim by any Party
against any other Party hereto,or be deemed to be a breach or default of this Contract if
such failure or omission shall be caused by or arise out of an event of Force Majeure.No
obligations of either Party that were required to be performed before the occurrence of an
event of Force Majeure causing the suspension of performance shall be excused as a
result of such occurrence.The obligation to pay money in a timely manner shall not be
subject to the Force Majeure provisions.
9.2 Notice.If either Party's ability to perform its obligations under this Contract is
affected by an event of Force Majeure,such Party shall promptly as reasonably possible,
upon learning of such event and ascertaining that it will delay its performance hereunder
(but in any event within two (2)Business Days after such Party becomes aware of such
delay),give Notice to the other Party (a "Delay Notice")stating the nature of the event,
its anticipated duration and effect upon the performance of such Party's obligations,and
any action being taken to avoid or minimize its effect.The burden of proof shall be on
the Party claiming to be affected pursuant to this Section 9.2.
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Both Parties have caused an individual with the requisite authorits to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial Companv:Initial
Rocky Mountain Power
Exhibit No.52 Page 165 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
9.3 Scope of Suspension;Duty to Mitigate.The suspension of performance due to an
event of Force Majeure shall be of no greater scope and no longer duration than is
required by such event and the effects of such event.The excused Party shall use its
reasonable efforts to:(a)mitigate the duration of,and costs arising from,any suspension
or delay in the performance;(b)continue to perform its obligations hereunder to the
extent unaffected by the Force Majeure event;and (c)remedy its inability to perform.
When the affected Party is able to resume performance of its obligation under this
Contract,such affected Party shall give the other Party Notice to that effect.
9.4 Removal of Force Majeure.If,within a reasonable time after an event of Force
Majeure that has caused Contractor to suspend or delay performance of the Work,action
to be undertaken at the expense of Owner has been identified and recommended to
Contractor,and Contractor has failed within ten (10)days after receipt of Notice thereof
from Owner to commence to take such action as Contractor could lawfully and
reasonably initiate to remove or relieve either the Force Majeure event or its direct or
indirect effects,Owner may,in its sole discretion and after Notice to Contractor,initiate
such reasonable measures as will be designed to remove or relieve such Force Majeure
event or its direct or indirect effects and,after such removal or relief has been
accomplished,require Contractor to resume full or partial performance of the Work.To
the extent Contractor's failure to take such measures results in additional expense in
O addition to what Owner would have paid to Contractor,had Contractor taken such
measures,such additional expense shall be for Contractor's account.
9.5 Responsibility of Contractor.Damages or injuries to Persons or properties resulting
from an event of Force Majeure during the performance of the obligations provided for in
this Contract shall not relieve the Contractor of the responsibility to bear the cost of the
damage or injuries caused by Contractor's negligence or misconduct to the extent such
costs are not covered by the insurance described in Article 23.
9.6 Contractor's Remedy.Contractor's sole remedy for the occurrence of an event of
Force Majeure shall be an extension of time as determined in accordancewith Article 17.
Contractor shall not suspend the Work unaffected by Force Majeure pending resolution
of the agreementon the extension of time under this Article 17 unless directed by Owner
in writing in accordancewith Article 22.
10.SUBCONTRACTORS
10.1 Use of Subcontractors;Owner's Right to Object.The Persons (including,where
applicable,specific plant locations utilized by such Persons)identified in Exhibit "A"
have been pre-approved by Owner for use by Contractor as a Subcontractor for the
particular materials,equipment or services as specified in Exhibit "A",and are not
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page ofthis Contract prior to execution
Contractor:Initial __Cornpanv:lnitial
Rocky Mountain Power
Exhibit No.52 Page 166 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
subject to the requirements of this Section 10.1.In the event Contractor desires to use a
substitute for any of the Persons (including,where applicable,specific plant locations
utilized by such Persons)listed in Exhibit "A",(including if such Person is not a Major
Subcontractor)then Contractor shall follow the procedures set forth in Exhibit "A".
Contractor shall follow the procedure set forth in this Section 10.1 with respect to
obtaining Owner approval of Major Subcontractors that are not otherwise subject to the
procedures set forth in Exhibit "A".Within fifteen days (15)of the effective date of each
Release,Contractor shall provide Owner with a list of all anticipated potential Major
Subcontractors.Within fifteen (15)Business Days after receipt of such list,Owner shall
have the right to advise Contractor of any such potential Major Subcontractor to which it
reasonably objects,together with the reasons for such objection.Contractor shall remove
from the list any potential Major Subcontractor to which Owner reasonably objects.
Owner shall be deemed not to have objected to any potential Major Subcontractor on the
list to which Owner does not object within such fifteen (15)Business Day period.
Contractor shall have the right to add potential Major Subcontractors to the list subject to
the procedures set forth above.Other than for the Persons approved in accordance with
Exhibit "A",no Subcontractor for any Equipment,material,component or service in
connection with the Work covered by this Section 10.1 shall be engaged by Contractor
prior to completion of the review process set forth in this Section 10.1.
10.2 No Approvals;Contractor Responsible for Work.Neither the use by Contractor of
any Subcontractors nor the review or failure to object by Owner of any Subcontractor
under this Article 10 shall:(a)constitute any approval of the Work undertaken by any
such Person;(b)cause Owner to have any responsibility for the actions,the Work,or
payment of such Person or to be deemedto be in a contractual or an employer-employee
relationship with any such Person;or (c)in any way relieve Contractor of its
responsibilities and obligations under this Contract.Contractor shall be responsible for
any Work performed by a Subcontractor.In no event shall any act or omission by any
Subcontractor constitute an event of Force Majeure except to the extent caused by an
event or circumstance that itself constituted an event of Force Majeure.Notwithstanding
anything in Article 7 to the contrary,in no event shall Contractor submit or Owner be
obligated to review any Contractor's Invoice with respect to work performed by any
Major Subcontractor prior to the expiration of the review period provided in Section 10.1.
10.3 Assignment.Each subcontract and purchase order entered into by Contractor with
respect to the Work with a Major Subcontractor shall contain a provision in the form of
Exhibit "P"consenting to assignment to Owner in the case of a Contractor default.
10.4 Information;Access.Contractor shall furnish such information and access relative
to its Subcontractors as Owner may reasonably request.Contractor shall promptly
provide Owner with all recall notices,defect notices or other product communications
from the Vendors and/or shall require that its Vendors send such notices and
communications directly to the Owner.
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Both Parties hate caused an induidual wah the requisne authern)to acknan:edge th:s and each page of this Contract pnor to execution
(ontractor Imtla]t ompant innial
Rocky Mountain Power
Exhibit No.52 Page 167 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
11.LABOR RELATIONS
11.1 General Management of Employees.Subject to Section 4.l6,and notwithstanding
the provisions of Section 11.2,Contractor shall retain its rights to exercise and shall
exercise its management rights in performing the Work.Such management rights shall
include the rights to hire,discharge,promote,and transfer employees;to select and
remove foremen or other Persons at other levels of supervision;to establish and enforce
reasonable standards of production;to introduce,to the extent feasible,labor saving
equipment and materials;to determine the number of craftsmen necessary to perform a
task,job,or project;and to establish,maintain,and enforce rules and regulations
conducive to safe,efficient and productive operations.Contractor shall plan and conduct
its operations so that its employees and Subcontractors of any tier will work
harmoniously with Owner's employees and other workers employed on the same or
related projects to assure that there will be no delays,work stoppages,excessive labor
costs,or other labor difficulties.Contractor shall enforce strict discipline and good order
among Contractor's employees and Subcontractors'employees.Contractor shall not
permit the employment of any unfit individual or individuals not skilled in the tasks
assigned to them.
O l 1.2 Labor Disputes.Contractor shall use,and shall cause each Subcontractor to use,
reasonable efforts to minimize the risk of labor related delays or disruption of the
progressof the Work.Contractor shall promptly take,and shall cause each Subcontractor
to take,any and all reasonable steps that may be available to resolve violations of
collective bargaining agreements or labor jurisdictional disputes,including the filing of
appropriate processes with any court or administrative agency having jurisdiction to
settle,enjoin,or award damages resulting from violations of collective bargaining
agreements or labor jurisdictional disputes.Contractor shall advise Owner promptly,in
writing,of any actual or threatened labor dispute of which Contractor has knowledge that
might materially affect the performance of the Work by Contractor or by any
Subcontractors.Notwithstanding the foregoing,the settlement of strikes,walkouts,
lockouts or other labor disputes shall be at the discretion of the Party having the
difficulty.
11.3 Personnel Documents.Contractor shall ensure that all its personnel and personnel
of any Subcontractors performing the Work are,and at all times shall be,in possession of
all such documents (including visas,driver's licenses and work permits)as may be
required by any and all Applicable Laws.
12.INSPECTION;EFFECT OF REVIEW AND COMMENT
12.1 Inspection and Uncovering Work.Owner shall have the right,but not the
obligation,to observethe Work and to inspect any item of Equipment or material,design,
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Lontractor 1nnial Lompany nu
Rocky Mountain Power
Exhibit No.52 Page 168 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
engineering,service,workmanship or any other portion of the Work to be provided
hereunder,and Contractor shall make available for review by Owner,and provide to
Owner if requested by Owner,all design criteria,system descriptions,Equipment
specifications,Drawings and Specifications,design calculations,quality assurance
reports,design drawings,shop drawings,Required Manuals,other Contractor
Deliverables and other documents relating to the Work as required by this Contract.
Owner shall be responsible for all of Owner's (and its representatives')costs and
expenses with respect to such inspections.
Contractor shall submit to the Owner a detailed Inspection and Test Plan ("I_T_P")for each
material piece of Equipment within ten (10)days after award of such Equipment
purchase agreement and for all material Work to be performed within thirty (30)days of
the effective date of each Release which such ITP is to include the inspections and testing
requirements as provided in Exhibit "A".The ITP shall include pertinent Vendor
manufacturing and construction inspection operations and plans.Owner shall identify to
Contractor the Equipment or portions of Work Owner desires to be hold points so that
Owner can inspect or witness consistent with the ITP and the Critical Path Method
Schedule before such Work can be released for further manufacture,shipment and/or
construction.Contractor shall provide Owner with reasonable notice of any such hold
points which shall be not less than five (5)Business Days for manufacture and shipment
O related inspections and not less than three (3)Business Days with respect to on-Site
construction-related inspections.If any portion of the Work so identified by Owner is
completed and/or covered without Contractor having given Owner the opportunity to
inspect such Work consistent with the ITP,Owner shall have the right to have such
portion of the Work uncovered or dismantled for inspection.The cost and schedule
impact of such uncovering and recovering (or dismantling and reconstruction)shall be
borne by Contractor whether the Work is found to be in conformance or nonconformance
with this Contract.
In the event Contractor has provided Owner an opportunity to inspect in accordancewith
the prior paragraph and Owner did not exercise its right to so inspect,or in the event
Contractor was not required in accordance with the prior paragraph to provide Owner
with an opportunity to inspect,then in either event,Owner shall have the right to have
any portion of the Work uncovered or dismantled for inspection upon Notice to
Contractor.The cost and schedule impact of such uncovering and recovering (or
dismantling and reconstruction)shall be borne by Contractor if the Work contains a
Defect;and if the Work is found not to contain a Defect,Contractor shall be entitled to a
Change in Work in accordancewith Article 17.
12.2 Right to Reject Work.Regardless of whether payment has been made therefor,
Owner shall have the right to reject any portion of the Work that contains any Defect.
Upon such rejection,Contractor shall promptly remedy,at its sole cost and expense,any
Defect that is identified by Owner as giving rise to such rejection.
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Both Parties have caused an individual with the requisite authorits to acknowledge this and each page of this Contract prior to execution.
Contractor Initial Companv Initial
Rocky Mountain Power
Exhibit No.52 Page 169 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
12.3 General Inspection Rights.Contractor agrees that Owner and its representatives
may observe and inspect the Work,any item of Equipment (including Equipment under
fabrication),material,service,or workmanship to be provided hereunder and to observe
all tests of the Work and the Project (including factory or other tests performed at a
location other than the Site).Upon reasonable Notice to Contractor by Owner,
Contractor shall allow Owner and its representative's reasonable access to the Work
(including Equipment under fabrication)and the Project.Owner also shall be entitled to
review all Contractor's Drawings and Specifications or technical details pertaining
thereto as reasonably requested by Owner or its representatives.Contractor shall
incorporate the review and inspection rights set forth in this Article 12 in all Equipment
purchase orders and subcontracts.To facilitate such observations and inspections,
Contractor shall maintain at the Site a complete set of all Drawings and Specifications
and current Critical Path Method Schedule.
12.4 Deliverables Schedule.Attached to each Release as part of Exhibit "H"is an initial
deliverables schedule.Within sixty (60)days after the effective date of each Release,
Contractor shall provide a Notice to Owner attaching a schedule identifying all
Contractor Deliverables to be delivered to Owner,the deadline for delivery thereof,and
Owner's time period for review and comment (in accordance with Section 12.5)with
respect thereto,and as updated and revised as required herein (the "Deliverables
O Schedule")which such schedule shall comply with the requirements set forth in Exhibit
"H"and incorporate the initial schedule attached in Exhibit "H".The Deliverables
Schedule shall include the Contractor Deliverables and documents (and include the time
periods for Owner's or a third party's review)as set forth in Exhibit "A".Thereafter,
Contractor shall at least on a monthly basis provide Notice to Owner attaching an updated
schedule identifying Contractor Deliverables to be delivered to Owner,the deadline for
delivery and Owner's time period for review and comment with respect thereto.Owner
shall have the right to promptly review and comment on such Deliverables Schedule.If
Owner provides any comments with respect to the Deliverables Schedule to Contractor,
then Contractor shall incorporate changes into such Deliverables Schedule addressing
such comments,and resubmit the same to Owner.Such incorporation of changes to
address Owner's reasonable comments shall not be considered a Change in Work.If
Owner fails to comment within ten (10)Business Days after receipt of such Notice,
Owner shall be deemedto have accepted the Deliverables Schedule.
The Deliverables Schedule shall provide an Owner's review period of adequate length of
time to permit a complete review by Owner based on the nature and extent of items
involved and the volume and content of other Contractor Deliverables submitted to
Owner during the same period.The Owner review time periods shall be consistent with
those set forth in Exhibit "A".
12.5 Owner Review of Documents.Contractor shall submit for review to Owner
Contractor Deliverables in accordance with the requirements of Exhibit "A",including
the Deliverables Schedule and Exhibit "H".Contractor shall ensure that all such items
undergo a comprehensive independent in-house review and approval process before
Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract pnor to execution.
Contractor Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 170 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
submission of such items to Owner.After receipt of any Contractor Deliverable,Owner
shall have the right,during the time period of fifteen (15)Business Days from the receipt
by Owner of such applicable Contractor Deliverable (except to the extent that a different
review period is specifically provided for in Exhibit "H")to describe any Defects in the
design or other Work identified in such Contractor Deliverable.Notwithstanding
anything in Article 7 to the contrary,in no event shall Contractor submit any Contractor's
Invoice with respect to Work performed pursuant to any such Contractor Deliverables
prior to the expiration of the review period set forth in this Section 12.5.Issuance by
Contractor of any purchase orders prior to Owner completing its review shall be at
Contractor's own risk.
12.6 Remedy of Defect -Contractor Deliverables.If Owner identifies any Defect in the
design with respect to any Contractor Deliverables submitted for review,then Contractor
shall incorporate changes into such Contractor Deliverables addressing and remedying
the Defect and resubmit the same to Owner,and such incorporation of changes to address
Owner's comments shall not be considered a Change in Work.No Contractor
Deliverable subject to this Section 12.6 shall be released for use in connection with the
Work prior to completion of the review process set forth in Section 12.5.
12.7 Limitation on Owner's Obligations.Inspection,review,acknowledgement,
O acceptance,approval or comment by Owner or any of its representatives,with respect to
any subcontract or purchase order or any Drawings and Specifications,Contractor
Deliverables,samples,and other documents,or any other Work or services performed by
Contractor or any Subcontractor,is solely at the discretion of Owner and shall not in any
way affect or reduce Contractor's obligations to complete the Work in accordance with
the provisions of this Contract or be deemed to be a warranty or acceptance by Owner
with respect to such Work.
13.FOUNDATION COMPLETION AND PROJECT MECHANICAL COMPLETION
OF THE WORK
13.1 Foundation Completion.Contractor shall achieve Foundation Completion with
respect to each individual foundation that is part of the Work.Foundation Completion
with respect to an individual foundation means the achievement of the following
milestones:
(a)Such foundation is mechanically completed and installed in accordance with
the Scope of Work;
(b)Such foundation is structurally complete and contains all necessary embedded
inserts;
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract pnor to execution.
Contractor:Initial Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 171 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
(c)The concrete portion of such foundation has cured so as to have achieved the
minimum strength necessary to allow assembly,erection and installation of
the tower thereon;
(d)Backfilling of the area surrounding such foundation has been completed;
(e)All of the crane hardstandings and tower erection lay-down and work areas
have been completed in accordancewith the construction plan approved under
this Contract;
(f)Contractor has provided sketches of each foundation and the tower (both
above-ground and below-ground in the immediately surrounding area);
(g)Embedded grounding material has been installed and ground grid analysis has
been completed;
(h)All coatings and grout required pursuant to Exhibit "A"have been installed;
and
(i)Owner has accepted or is deemed to have accepted a Foundation Completion
Certificate with respect to such Work pursuant to Section 13.3.
13.2 Project Mechanical Completion.The following are conditions precedent to Project
Mechanical Completion:
(a)Contractor shall have achieved Foundation Completion for each foundation
that is part of the Project;
(b)The Project and each sub-system of the Project,in each case to the extent
required for commissioning,initial operation,adjustment and testing is
mechanically,electrically,and structurally constructed in accordance with the
requirements of this Contract,the Scope of Work and Industry Standards,
including completion of the Mechanical Completion Tests in accordancewith
the Mechanical Completion Test Procedures;
(c)The Project and each sub-system of the Project may be commissioned and
operated without damage to the Project or the Site and any sub-system or any
other property on or off the Site,and without injury to any Person;
(d)The Project and each sub-system of the Project is functionallycomplete to the
extent necessary for commissioning,initial operation,adjustment,and testing;
and
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Comract prior to execution
Contractor Initial Compant Initial
Rocky Mountain Power
Exhibit No.52 Page 172 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
(e)Owner has accepted or is deemed to have accepted a Project Mechanical
Completion Certificate with respect to such Work pursuant to Section 13.4.
13.3 Achievement of Foundation Completion When Contractor believes that it has
achieved Foundation Completion it shall deliver to Owner a completed Foundation
Completion Certificate.Such certificate shall include the results of all testing relevant to
achievement of such milestone and otherwise contain a report in a form reasonably
acceptable to Owner and with sufficient detail to enable Owner to determine that
Contractor has achieved Foundation Completion.The report shall include,but not be
limited to,the following:
(a)An organized submittal for each foundation in both electronic and hard
copy format including,but not limited to,the following:
a.Those items identified in Section 13.1 (f);
b.foundation excavation report;
c.open hole inspection report (if applicable);
d.concrete placement log,including concrete batch tickets;
e.direct embed installation report;
f.foundation installation report;
g.anchor bolt foundation installation report;O h.structure grounding and resistance measurement;
i.steel mill certificates;
j.compressive strength report
k.non-destructive testing /discrepancy resolution report
(b)The ground grid analysis referred to in Section 13.1 (g)in its native file
format;
(c)Other documentation as requested by Owner to verify completion of those
items identified in Section 13.1.
Owner shall,within ten (10)Business Days,following receipt of a Foundation
Completion Certificate,either:(a)deliver to Contractor a countersigned
Foundation Completion Certificate,indicating its acceptance of the achievement
of such milestone;or (b)if reasonablecause exists for doing so,notifyContractor
in writing that such milestone has not been achieved,stating in detail the reasons
therefor.If Owner delivers the notice under the preceding clause (b),Contractor
promptly shall take such action,including the performance of additional Work to
achieve such milestone,and upon completion of such actions shall issue to Owner
another notice with respect to such milestone pursuant to this Section 13.2.Such
procedure shall be repeatedas necessary until such milestone has been achieved.
For all purposes of this Agreement,the date of achievement of Foundation
Completion shall be the date on which Contractor delivers to Owner the
Foundation Completion Certificate that Owner ultimately accepts or is deemedto
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial Companv Initial
Rocky Mountain Power
Exhibit No.52 Page 173 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
have accepted or pursuant to a determination under the dispute resolution
procedures,should have accepted.If Owner fails to respond to Contractor's
submitted Foundation Completion Certificate within the time set forth above,
such Certificate shall be deemed accepted by Owner on the date submitted by
Contractor.Any disputes regarding the existence or correction of any such
alleged deficiencies shall be resolved pursuant to Article 36.
13.4 Achievement of Project Mechanical Completion When Contractor believes that it
has achieved Project Mechanical Completion it shall deliver to Owner a completed
Project Mechanical Completion Certificate.Such certificate shall include the results of
all testing relevant to achievement of such milestone and otherwise contain a report in a
form reasonably acceptable to Owner and with sufficient detail to enable Owner to
determine that Contractor has achieved Project Mechanical Completion.
Owner shall,within ten (10)Business Days,following receipt of a Project Mechanical
Completion Certificate,either:(a)deliver to Contractor a countersigned Project
Mechanical Completion Certificate,indicating its acceptance of the achievement of such
milestone;or (b)if reasonable cause exists for doing so,notify Contractor in writing that
such milestone has not been achieved,stating in detail the reasons therefor.If Owner
delivers the notice under the preceding clause (b),Contractor promptly shall take such
action,including the performance of additional Work to achieve such milestone,andOuponcompletionofsuchactionsshallissuetoOwneranothernoticewithrespecttosuch
milestone pursuant to this Section 13.4.Such procedure shall be repeated as necessary
until such milestone has been achieved.For all purposes of this Agreement,the date of
achievement of Project Mechanical Completion shall be the date on which Contractor
delivers to Owner the Project Mechanical Completion Certificate that Owner ultimately
accepts or is deemed to have accepted or pursuant to a determination under the dispute
resolution procedures,should have accepted.If Owner fails to respond to Contractor's
submitted Project Mechanical Completion Certificate within the time set forth above,
such Certificate shall be deemed accepted by Owner on the date submitted by Contractor.
Any disputes regarding the existence or correction of any such alleged deficiencies shall
be resolved pursuant to Article 36.
14.TESTS AND TESTING
14.1 Test Procedures.Contractor shall:(i)provide for Owner's review and approval
detailed Mechanical Completion Test Proceduresin accordancewith the requirements for
testing,documenting and satisfactorily achieving each Acceptance Requirement,as set
out in Exhibit "A"not less than one hundred and twenty (120)days prior to the start of
testing and such Mechanical Completion Test Procedures must be agreed upon by
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial ____Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 174 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
Contractor and Owner at least sixty (60)days prior to the commencement of testing with
the Test Procedures clearly indicating when in the testing schedule Interconnection will
be required;and (ii)keep the Project Representative apprised of the specified schedule
and changes thereto for the commencement and performance of such activities.
14.2 Conduct of Tests.The representativesof Owner and Owner's Engineer shall have
the right,but not the obligation,to be present during any tests performed by Contractor
under this Contract.
14.3 Test Schedules.A projected schedule shall be provided by Contractor with
submission of Mechanical Completion Test Procedures required in Section 14.1 and
agreed to at least thirty (30)days prior to the anticipated start of the applicable Tests.
Contractor shall provide Owner at least ten (10)days'prior Notice thereof prior to
performing such tests.The Contractor shall keep the Project Representative apprised of
the specified schedule,and changes therein,for the commencement and performance of
such tests,and shall give the Project Representative at least five (5)Business Days'prior
Notice of the re-performance of any such tests.A test conducted by the Contractor
without the required Notice to Owner shall not be valid for the purposesof this Contract.
O 14.4 Owner Testing.Owner shall provide Notice to Contractor of any construction
deficiencies identified during any Owner Testing as soon as practicable but no later than
five (5)days after identification of the deficiency and in all cases not later than fifteen
(15)days prior to the Substantial Completion GuaranteedDate.
15.SUBSTANTIAL COMPLETION AND FINAL COMPLETION
15.1 Substantial Completion.Substantial Completion shall be achieved when:
(a)Contractor shall have achieved Foundation Completion for each
foundation that is part of the Project;
(b)The Project and each sub-system of the Project,in each case to the extent
required for commissioning,initial operation and adjustment is
mechanically,electrically,and structurally constructed in accordance with
the requirements of this Contract,the Scope of Work and Industry
Standards,including completion of all testing required in Exhibit A;
(c)The Project and each sub-system of the Project may be commissioned and
operated without damage to the Project and any sub-system or any other
property on or off the Site,and without injury to any Person;
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Both Parties har e caused an indmdual with the requisite authont)to acknaniedge this and each page of this Contract pnor to execution
Rocky Mountain Power
Exhibit No.52 Page 175 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
(d)The Project and each sub-system of the Project is functionally complete to
the extent necessary for commissioning,initial operation,adjustment and
testing;
(e)Owner has received copies of all Contractor Acquired Permits required for
operation of the Project;
(f)Contractor has certified by Notice to Owner that it has administered the
training required by Section 4.22;
(g)Owner has received all Contractor Deliverables due prior to Substantial
Completion in accordancewith the terms of this Contract;
(h)The Punchlist and a schedule and budget for completion of each Punchlist
Item,in each case reasonably satisfactory to Owner,have been developed
by Contractor and delivered to Owner;
(i)All Work other than those Punchlist Items shown on the Punchlist or
Work which by its nature is to be performed after Substantial Completion
has been completed by Contractor;
(j)The Project as a whole may be operated in accordance with Industry
Standards and manufacturers'warranties without damage to the Project or
any sub-system or part thereof or any other property on or off the Site and
without injury to any Person;
(k)No Contractor Event of Default exists;
(1)All other Work except for the Punchlist,,which is not part of the Work
necessary to commission,test,start-up and operate the Project,has been
completed in accordance with Industry Standards and manufacturers
warranties and can be utilized and function without damage to the Work,
the Site or any other property on or off the Site and without injury to any
Persons;and all Applicable Permits with respect to such Work have been
provided to Owner;and
(m)Owner has accepted or is deemed to have accepted a Substantial
Completion Certificate with respect to such Work pursuant to Section
15.2.
15.2 Achievement of Substantial Completion.When Contractor believes that it has
achieved Substantial Completion,it shall deliver to Owner a completed Substantial
Completion Certificate.Such certificate shall include the results of all testing relevant to
achievement of such milestone and otherwise contain a report in a form reasonably
O acceptable to Owner and with sufficient detail to enable Owner to determine that
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Both Panies have caused an ndmdual with the requisne authorny to acknan:edge this and each page of this Contract priorlo execution
Contractor Initial Cornpan inmai
Rocky Mountain Power
Exhibit No.52 Page 176 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
Contractor has achieved Substantial Completion.Owner shall,within ten (10)Business
Days following receipt of such certificate,either:(a)deliver to Contractor a
countersigned Substantial Completion Certificate indicating its acceptance of the
achievement of such milestone;or (b)if reasonable cause exists for doing so,notify
Contractor in writing that such milestone has not been achieved,stating in detail the
reasons therefor.If Owner delivers the notice under the preceding clause (b),Contractor
promptly shall take such action,including the performance of additional Work to achieve
such milestone,and upon completion of such actions shall issue to Owner another Notice
with respect to such milestone pursuant to this Section 15.2.Such procedure shall be
repeated as necessary until such milestone has been achieved.For all purposes of this
Agreement,the date of achievement of Substantial Completion shall be the date on which
Contractor delivers to Owner the Substantial Completion Certificate that Owner
ultimately accepts or is deemed to have accepted or,pursuant to a determination under
the dispute resolution procedures,should have accepted.If Owner fails to respond to
Contractor's submitted Substantial Completion Certificate within the time set forth
above,such Certificate shall be deemed accepted by Owner on the date submitted by
Contractor.Any disputes regarding the existence or correction of any such alleged
deficiencies shall be resolved pursuant to Article 36.
15.3 [Reserved.]
15.4 [Reserved.]
15.5 Final Completion.Final Completion of the Work and the Project shall be deemed
to have occurred only if and when all of the following have occurred:
(a)Contractor has achieved Substantial Completion in accordance with
Section 15.2;
(b)Owner has received at least one (1)hard copy and one (1)electronic copy
of legible and complete as-built documentation,calculations,test data,
performance data,Equipment descriptions,Required Manuals,training
aids,Spare Parts lists,and other technical information each as required
hereunder for Owner to start up,operate,commission,and maintain the
Project;
(c)All tools and Spare Parts purchasedby Contractor to replace those used by
Contractor during commissioning have been purchased for delivery to
Owner free and clear of liens;
(d)All Contractor's and Subcontractors'personnel,supplies,tools,
equipment,machinery,surplus materials,waste materials,rubbish,and
temporary facilities to which Owner does not hold title have been removed
from the Site,and any permanent facilities used by Contractor and the Site
have been restored in accordance with the terms of the Contract.All
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution
Contractor:Initial Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 177 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
cleanup and disposal shall be conducted in accordancewith all Applicable
Laws;
(e)Owner has received from Contractor all information requested by Owner
and required for Owner's final fixed asset records with respect to the
Project in accordancewith Section 4.9;
(f)Contractor has paid Owner all amounts due hereunder and not in dispute;
(g)Contractor has assigned to Owner or provided Owner with all warranties
or guaranteesthat Contractor received from Subcontractors to the extent
Contractor is obligated to do so pursuant to Section 18.6;
(h)The Punchlist Items have been completed to the satisfaction of Owner;
(i)Contractor has delivered the certifications,Final Release and Waiver of
Liens and Claims,or the bonds,in accordance with Section 7.6 and has
delivered such other documents and certificates as Owner has reasonably
requestedto ensure compliance with all Applicable Laws;
O (j)Contractor has,within 60 days of the Substantial Completion Date,
provided a detailed list of quantities by Property Retirement Unit (PRU)
for each Pricing Schedule Item shown in Exhibit "Y".The material and
installation costs for major pieces of equipment should be broken out
separately.Examples of this equipment are identified in Exhibit "Y".For
transmission,the final quantities shall match the final schedule of values
updated by Contractor in accordance with Exhibit "D".In addition for
transmission,Exhibit "Y"identifies specific information that will be
submitted by Contractor in an electronic format acceptable to Company;
(k)RESERVED
(1)Owner has accepted or is deemed to have accepted a Final Completion
Certificate pursuant to Section 15.6.
15.6 Achievement of Final Completion.When Contractor believes that it has achieved
Final Completion,it shall deliver to Owner a completed Final Completion Certificate.
Such certificate shall include the results of all testing relevant to achievement of such
milestone and otherwise contain a report in a form reasonably acceptable to Owner and
with sufficient detail to enable Owner to determine that Contractor has achieved Final
Completion.Owner shall,within twenty (20)Business Days following receipt of such
certificate,either:(a)deliver to Contractor a countersigned Final Completion Certificate
indicating its acceptance of the achievement of such milestone;or (b)if reasonablecause
exists for doing so,notify Contractor in writing that such milestone has not been
achieved,stating in detail the reasons th2erefor.If Owner delivers the notice under the
Rocky Mountain Power
Exhibit No.52 Page 178 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
preceding clause (b),Contractor promptly shall take such action,including the
performance of additional Work to achieve such milestone,and upon completion of such
actions shall issue to Owner another notice with respect to such milestone pursuant to this
Section 15.6.Such procedure shall be repeated as necessary until such milestone has
been achieved.For all purposes of this Agreement,the date of achievement of Final
Completion shall be the date on which Contractor delivers to Owner the Final
Completion Certificate that Owner ultimately accepts or is deemed to have accepted or,
pursuant to a determination under the dispute resolution procedures,should have
accepted.If Owner fails to respond to Contractor's submitted Final Completion
Certificate within the time set forth above,such Certificate shall be deemed accepted by
Owner on the date submitted by Contractor.Any disputes regarding the existence or
correction of any such alleged deficiencies shall be resolved pursuantto Article 36.
15.7 Contractor's Access After Substantial Completion.Following Substantial
Completion,Owner shall provide Contractor with reasonableand timely access subject to
the terms of this Contract to complete Punchlist Items and to satisfy the other
requirements for Final Completion;provided,however,Owner shall not be obligated
hereunder to shut down,reduce or otherwise interfere with its operation of the Project or
the Transmission Grid as a direct or indirect result of allowing Contractor access pursuant
to this Section 15.7.Owner will:(a)provide Contractor with reasonableadvanceNotice
O of any extended scheduled outages of the Project or the Transmission Grid and the
expected duration thereof;and (b)cooperate with Contractor with regard to reasonable
requests by Contractor for access during such extended scheduled outages of the Project
or the Transmission Grid.
16.DELAY DAMAGES
16.1 Liquidated Damages for Delay.Contractor understands that if the Substantial
Completion does not occur on or before the Substantial Completion Guaranteed Date or
if the operation of the Transmission Grid is interrupted or otherwise affected,Owner will
suffer substantial damages,including,potentially,additional interest and financing
charges on funds obtained by Owner to finance the Work,reduction of the return on
Owner's equity investment in the Project,and other operating and construction costs and
charges.Therefore the following liquidated damages,collectively the "Delay Liquidated
Damages",shall be payable by Contractor to Owner:
16.1.1.Project Mechanical Completion Delay LDs.Contractor agrees that,if Project
Mechanical Completion is not achieved by the applicable Project Mechanical
Completion Guaranteed Date,Contractor shall pay liquidated damages ("Project
Mechanical Completion Delay LDs")in the amount as specified in each Release per
day for each day by which the Project Mechanical Completion Date is delayed
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract pnor to execution.
Contractor:Initial Companv:Initial
Rocky Mountain Power
Exhibit No.52 Page 179 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
16.1.2.Substantial Completion Delay LDs.Contractor agrees that,if Substantial
Completion is not achieved by the applicable Substantial Completion Guaranteed
Date,Contractor shall pay liquidated damages ("Substantial Completion Delay
LDs")in the amount as specified in each Release per day for each day by which the
Substantial Completion Date is delayed.Substantial Completion Delay LD's will be
in addition to the Project Mechanical Delay LD's,where Project Mechanical
Completion Date has not been achieved by the date of Substantial Completion
Guaranteed Date,and until the date of accepted Project Mechanical Completion.
Delay Liquidated Damageswill not be assessed to the extent that the failure to meet the dates is
attributable is caused by an Owner caused delay.
16.1.3.Transmission Grid Interference.Contractor agrees to pay liquidated damages in
the amount as specified in each Release,per day,per transmission line for each day
that a transmission line which is a part of the Transmission Grid is out of service or
materially interfered with prior to Final Completion,to the extent of a Contractor
Cause.
16.1.4.Proration of Daily Amounts.Notwithstanding that the liquidated damage
O amounts set forth in this Section 16.1 are identified on a per day basis,the actual
amount of liquidated damages will be determined and be payable on an hourly
basis;and the amount per hour is determined by dividing the per day amount by
twenty-four.
16.2 Payment of Liquidated Damages.Any amount Contractor is obligated to pay to
Owner under Section 16.1 shall be due and payable ten (10)days after receipt of a written
requesttherefor from Owner.
16.3 Offset.If Contractor is obligated to pay any amount to Owner pursuant to this
Article 16 and such amount is not paid within the time period referred to in such Section,
then Owner shall have the right to offset any such amount against any amount then or
thereafter due from Owner to Contractor under this Contract and to exercise its rights
against any security provided by or for the benefit of Contractor in such order as Owner
may elect in its sole discretion.
16.4 Sole and Exclusive Remedy.Contractor and Owner agree that Owner's actual
damages in the event of delays in achieving completion of the various parts of the Project
would be extremely difficult or impracticable to determine and that,after negotiation,
Owner and Contractor have agreed that the Delay Liquidated Damages set forth in
Section 16.1 are a reasonableestimate of the damages that Owner would incur as a result
of such delays or failures and are not intended in any way to be a penalty.Subject to
O Article 35,the amounts payable under Section 16.1 and,if such failure constitutes a
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to executiort
Contractor:Initial __Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 180 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
Contractor Event of Default the remedies provided for in Article 20,shall be Owner's
sole remedies for delays in achieving Substantial Completion by the Substantial
Completion Guaranteed Date;and interruption or interference with the Transmission Grid
as provided in Sections 16.1.2.
17.CHANGES IN THE WORK
17.1.Change in Work.A Change in Work may result only from any of the following:
(a)A Change in Work required by Owner in writing,including an acceleration of
Work,in accordancewith Section 17.2:
(b)A Change in Work as provided in Section 4.33(d)(Hazardous Materials);
(c)A Change in Work relating to Owner Acquired Permits as provided in Section
(d)A Change in Work as provided in Section 12.1 (uncovering non-defective
Work);
(e)A Change in Law;
(f)An Owner Caused Delay;
(g)Such other event which pursuant to the terms of this Contract expressly permit
Contractor to obtain a Change in Work in accordancewith this Article 17.
A Change in Work may result from an event of Force Majeure but Contractor's sole
remedy for the occurrence of an event of Force Majeure shall be an extension of time in
accordancewith Section 9.6 and Section 17.4.3.
17.2 By Owner.Owner may request a Change in Work,whether such changes are
modifications,alterations,decelerations,additions,or deletions.Upon receipt of such
Notice,Contractor shall prepare and provide Owner with a completed Change in Work
form identified in Exhibit "E"within fifteen (15)Days thereafter.All such changes shall
be made in accordance with this Article 17 and shall be considered,for all purposes of
this Contract,as part of the Work.
17.3 By Contractor.Contractor shall only be entitled to request a Change in Work to the
extent permitted in Section 17.1 upon a)delivery by Contractor to Owner of a written
notice of its intention to submit a request for a Change in Work within five (5)Business
Days after the date that Contractor becomes aware of the event or condition giving rise to
the entitlement to a Change in Work,and b)Contractor prepares and provides Owner
with a completed Change in Work form identified in Exhibit "E"within fifteen (15)Days
O thereafter.
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract poor to execution.
Contractor Initial Companv Initial
Rocky Mountain Power
Exhibit No.52 Page 181 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
17.4 Adjustments to the Contract.
17.4.1 Adjustments to Project Schedule.If Owner directs a Change in Work in
accordance with Section 17.2,or if Contractor is entitled to request a Change in
Work in accordance with Section 17.3,and if (in either case)as a result,
Contractor shall be actually and demonstrably delayed in the performance of a
Critical Path Item as scheduled in the Critical Path Method Schedule,then
Contractor may request a Change in Work and upon such request,the Critical
Path Method Schedule (and each Project Guaranteed Date referenced therein)
shall be extended by the period of time that Contractor is actually and
demonstrably delayed in the performance of a Critical Path Item.Owner shall
have the right,in lieu of extending a Project Guaranteed Date,to direct Contractor
to accelerate the Work in accordancewith Section 17.2.
17.4.2 Adjustments to the Contract Price.If Owner directs a Change in Work in
accordance with Section 17.2,or if Contractor is entitled to request a Change in
Work in accordance with Section 17.3,and if (in either case)such Change in
Work impacts Contractor's costs of performing the Work,then an equitable
adjustment to the Contract Price shall be made.Where Contractor is entitled to an
O equitable adjustment,and where Exhibit R,as applicable,provides unit price rates
with respect to the applicable Change in Work,the Contract Price shall be
adjusted solely in accordancewith the unit price Change in Work rates set forth in
Exhibit R ,as applicable.Without limiting the generality of the forgoing,unit
price rates shall be the sole basis for equitable price adjustments with respect to
Changes in Work requiring:route changes with respect to the transmission line,
transmission line pole relocations,additions of transmission pole structures,
changes in transmission pole structure types,changes in foundation types and/or
changes in access road routes or configurations.For the avoidance of doubt,
Contractor shall not be entitled to any relocations as described in Exhibit R,as
applicable,unless provided by Owner as a result of an Owner directed Change in
Work in accordancewith Section 17.2.Any determinations regarding the need to
change transmission pole structure types or foundation types shall be determined
in accordancewith Exhibit R,as applicable.For Changes in Work for which no
unit price rates are provided in Exhibit R,then the Contract Price shall be changed
to reflect the amount of increasedor decreased costs at such other fixed price,unit
rate,time and materials rates or other rates as the Parties may agree;provided,
however,that,to the extent reasonably possible,such equitable adjustments to the
Contract Price shall be consistent with commodity cost,equipment cost,labor
cost,resource staffing requirements,overhead,profit,and other assumptions
embedded in the unit price Change in Work rates for analogous work as set forth
in Exhibit R.Owner may direct the Contractor to proceed with the Change in
Work pending negotiation of a Change in Work Form by issuing a written
unilateral directive (which shall be considered a Change in Work Form for
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Both Parties have caused an individual with the requisite authonty to acknowledge this and each page ofthis Contract pnor to execution
Contractor:Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 182 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
purposes of Section 17.7.2)and Contractor shall continue with the performances
of Work.
17.4.3 Adjustments to the Progress Payment Amounts or Progress
Payment Schedule.If Owner directs a Change in Work in accordance with
Section 17.2,or if Contractor is entitled to request a Change in Work in
accordance with Section 17.3,and if (in either case)such Change in Work
impacts Contractor's costs or schedule for performing the Work,then (a)an
equitable adjustment to the Contract Schedule shall be made in accordance with
Section 17.4.1;(b)an equitable adjustment to the Contract Price shall be made in
accordance with Section 17.4.2.If either or both equitable adjustment(s)entitle
the Contractor to a change in any of the Interim Progress Milestone,Progress
Payment Amount or Progress Payment Schedule then the Contractor shall be
solely responsible for applying to the Owner for written authorization of an
equitable adjustment of such item(s)as they may apply by providing all relevant
and necessary supporting documentation and analysis to permit the Owner to
provide a decision in such matters.The Owner shall review such application in a
timely manner and mutually agree within 30 days with the Contractor revisions to
the Interim Progress Milestones,Progress Payment Amounts and Progress
Payment Schedule as they may apply.
O 17.4.4 Force Majeure.Upon the occurrence of an event of Force Majeure,if
Contractor shall be actually,demonstrably and materially delayed in the
performance a Critical Path Item as scheduled in the Critical Path Method
Schedule as a result of such event or circumstance,then Contractor may request a
Change in Work under which the Project Guaranteed Dates shall be extended by
the period of time Contractor is so actually and demonstrably delayed in the
performance of a Critical Path Item and as set forth in the Change in Work Form
accepted by Owner,but there shall be no changeto the Contract Price.
17.4.5 Reduction In Cost.If a Change in Work involves a reduction in the cost to
perform the Work including a reduction in the use of less labor resulting in
reduced labor costs,there shall be a lump-sum deduction from the Contract Price,
which deduction will be based on unit price rates set forth in Exhibit R.For
Changes in Work for which no unit price rates are provided in Exhibit R then the
Contract Price shall be reduced by the amount that Contractor has in its budget for
the Work involved,inclusive of direct and indirect costs,overhead,margins,
contingencies and fees.
17.4.6 Other Terms and Conditions to Apply.Subject to the equitable
adjustments to price and schedule contemplated in this Article 17,all Changes in
Work shall continue to be subject to the terms and conditions of this Contract
including terms and conditions allocating Project risks between the Parties.
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Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract prior to execution.
Contractor Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 183 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
17.5.[RESERVED].
17.6 Disputes.If there is a dispute between the Parties about a request for a Change in
Work by either Party under this Article 17,such dispute shall be resolved in accordance
with Article 36.Notwithstanding any provision of this Article 17 to the contrary,the
Parties will execute a Change in Work to reflect the resolution of such dispute.
17.7 Procedures.
17.7.1 Contractor's Estimate.Contractor shall,as soon as practicable after
notification or becoming aware of such an event,prepare and deliver to Owner a
detailed statement of the proposed Change in Work setting forth:(a)a description
of the work covered by such Change in Work;(b)a detailed estimate of the cost
(identifying labor,equipment,material costs and other expenses)and the
estimated time required to implement the Change in Work and a quote for a firm
price;and (c)the impact such Change in Work would have on (i)the Progress
Payment Schedule;(ii)the Critical Path Method Schedule;(iii)the Project
Guaranteed Dates;(iv)the Warranties;(v)the costs of operation and maintenance
of the Project following Substantial Completion;and (vi)any other obligations of
either Party of this Contract.Contractor shall not charge Owner for the costs of
O preparing the Change in Work Form unless the Change in Work Form is not
implemented.
17.7.2 No Unapproved Scope Changes.In no event shall Contractor be entitled to
undertake or be obligated to undertake any Change in work until Contractor has
received a Change in Work Form submitted by Contractor and accepted by Owner
and,in the absence of such Change in Work Form,if Contractor undertakes any
Changes in Work,Contractor shall make any such Changes in Work at
Contractor's sole risk and expense and Contractor shall not be entitled to any
payment or other relief under the Contract for undertaking such changes.
17.7.3 Failure to Comply with Notice Requirements.In the event Contractor
does not provide Notice within the five (5)Business Days of the date Contractor
became aware of the facts or circumstances that permit Contractor to seek a
Change In Work permitted under this Article 17 as required by Section 17.3,
Contractor shall not be entitled to a Change In Work under this Article 17 or any
other relief hereunder.
17.8 No Suspension Contractor shall not suspend the Work pending resolution of any
proposed Change in Work unless directed by Owner in writing in accordancewith Article
L.Contractor's rights in the cases of a dispute involving a proposed Change in Work
(or the equitable adjustments related to a proposed Change in Work)shall be as set forth
in Section 17.4 and Article 36.
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Both Parties have caused an individual anh the requisite authority to acknow ledge this and each page of this Contract pnor to execution
Contractor Initial Cornpany lnitial
Rocky Mountain Power
Exhibit No.52 Page 184 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
18.WARRANTIES CONCERNING THE WORK
18.1 Project Warranties.During the Warranty Period,Contractor warrants and
guarantees with respect to the Project (the "Project Warranties")that all Work shall
conform to the Materials Warranty set out in Section 18.2 and that all Work (other than
Work covered by the Materials Warranty),including the Pre-Construction Services,the
design and construction of the Project and the installation of the Equipment shall be:(a)
in accordance with Industry Standards;(b)free from Defects;(c)in conformance with all
applicable requirements of this Contract;and (d)safe and fit for Owner's use as part of
the Transmission Grid as set forth in this Contract.In addition,with respect to
Pre-Construction Services,Contractor shall perform the Pre-Construction Services in
accordance with the scope set forth in the Limited Notice to Proceed and using the
standards of care,skill,and diligence normally provided by a professional in the
performance of similar services,and shall comply with all laws,codes and standards
applicable to the Pre-Construction Services.
18.2 Materials Warranty.During the Warranty Period,Contractor further warrants that
O all Equipment and other items furnished by Contractor and any Subcontractors hereunder
shall be new and of good and suitable quality when installed,shall conform to the
requirements of this Contract,including the Scope of Work,shall be free from any
charge,lien,security interest or other encumbrance and shall be free of any Defects (the
"Materials Warranty").If requested by Owner,Contractor shall provide Owner with
satisfactory evidence that any item(s)of Equipment satisfy the Materials Warranty.As
part of the Materials Warranty,Contractor specifically covenants that all rights and
benefits which Contractor possesses with regard to warranty obligations of any
manufacturer of Equipment shall be fully available to or assigned to Owner.
18.3Warranty Period.The "Warranty Period"for the Work shall be as follows:
(a)With respect to the Work relating to the transmission line and associated
communication facilities (including the foundations,poles,arms,insulators,
conductors,Optical Ground Wires and shield wires),a period of years from
the Substantial Completion Date as specified in each Release.
Contractor shall have no liability under Section 18.1 or 18.2 from and after the
end of the Warranty Period (as such period may be extended in accordance with
the terms hereof);provided,however,that the Warranty Period for any item or
part required to be repaired,corrected or replaced following discovery of a Defect
during the original Warranty Period shall be extended from the time of such
repair,correction or replacement for a period that in no event shall extend beyond
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Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract pnor to execution
Contractor Initial Company.Initial
Rocky Mountain Power
Exhibit No.52 Page 185 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
a date that is five (5)years after expiration of the Warranty Period specified in
each Release.
18.4 Enforcement After Expiration.Commencing on the expiration of the Warranty
Period,or such later date as is provided in Section 18.3,Owner shall be responsible for
enforcing all representations,warranties,and guarantees from Subcontractors,and
Contractor shall provide reasonable assistance to Owner,on a reimbursable basis,in
enforcing such representations,warranties,and guarantees,when and as reasonably
requested by Owner.In addition,prior to the expiration of each respective Warranty
Period,or such later date as is provided in Section 18.3 with respect to Work required to
be re-performed,Owner,at its option and upon prior written Notice to Contractor,may
enforce any such warranty against any Subcontractor if:(a)Owner determines that
Contractor has not enforced such warranty against the Subcontractor in a timely and
diligent manner or performed the warranty work itself,or (b)a Contractor Event of
Default exists and owner has taken actions to terminate this Contract in accordance with
the terms hereof.
18.5 Exclusions.The Project Warranties and Materials Warranty set forth in Section 18.1
and Section 18.2 shall not apply to damage to any Equipment to the extent such damage
is caused by:
(a)Owner's failure to operate and maintain such Equipment in accordance
with Industry Standards;
(b)Owner's operation of such Equipment in excess of the operating
specifications for such Equipment;
(c)The use of parts or consumables in the repair or maintenance of such
Equipment that are not in accordancewith Industry Standards;
(d)Any event of Force Majeure;or
(e)Normal wear and tear.
18.6 Subcontractor Warranties.Without in any way derogating from Contractor's own
representations and warranties with respect to all of the Work,Contractor shall use its
reasonable efforts:(a)to obtain from all Subcontractors (including Vendors)any
representations,warranties,guarantees,and obligations offered by such Subcontractors;
and (b)to attempt to negotiate warranty periods longer than the Warranty Periods at no
additional cost to Contractor with respect to design,materials,workmanship,Equipment,
tools,supplies and other items furnished by such Subcontractors.All representations,
warranties,guarantees,and obligations of such Subcontractors shall be assigned to
Owner,in accordance with the provisions of this Contract,including Exhibit "P",to
Owner upon Substantial Completion;provided,however,that,notwithstanding such
assignment,Contractor shall also be70entitledtoenforce each such representation,
Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract poor to execution.
Contractor:Initial Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 186 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
warranty,guarantee,and obligation through the end of the applicable warranty periods as
an express third-party beneficiary.Contractor shall deliver to Owner promptly following
execution of such applicable contract with a Subcontractor and upon Owner's request
duly executed copies (with pricing information redacted)of all contracts containing such
representations,warranties,guarantees,and obligations.
18.1.Correction of Defects.
(a)Owner shall promptly give Notice to Contractor upon discovery of any failure
of any of the Work to satisfy the Project Warranties or the Materials Warranty
during the applicable Warranty Period (including Subcontractor warranty
period).In the event of any such failure under circumstances in which there is
an immediate need as defmed in Section 18.8,then Owner shall perform such
warranty work for Contractor's account in accordance with the Warranty
Procedures;provided,however,that the failure to comply with such Warranty
Procedures shall not void the Project Warranties or the Materials Warranty.
In all other cases,Contractor shall,at its own cost and expense (except to the
extent of insurance proceeds actually received),be responsible for re-
performing any necessary engineering and purchasing relating to such
Equipment,material,labor,and shipping,and removing any Defect and the
O cost of replacement thereof,including any resulting damage to surrounding
Work and/or adjacent property,equipment and facilities,as shall be necessary
to cause the Work and the Project to conform to the Project Warranties or
Materials Warranty.Within five (5)days after receipt by Contractor of a
Notice from Owner specifying a failure of any of the Work to satisfy
Contractor's Project Warranties or the Materials Warranty and requesting
Contractor to correct the Defect,Contractor and Owner shall mutually agree
when and how Contractor shall remedy said Defect.If Contractor does not
use commercially reasonable efforts to proceed to complete said remedy
within the time agreedto,or should Contractor and Owner fail to reach such
an agreement within such five (5)day period,Owner shall have the right to
perform the necessary remedy,or have third parties perform the necessary
remedy,in accordancewith the Warranty Procedures;provided.however,that
the failure to comply with such Warranty Proceduresshall not void the Project
Warranties or the Materials Warranty,and the costs as established pursuant to
the Warranty Procedures shall be borne by Contractor.
(b)Notwithstanding the foregoing,Contractor shall have the right to request
Owner to perform all or any portion of Contractor's obligations with respect
to any warranty claim,and,if Owner determines that it has the capability and
expertise to perform such obligations,Owner shall perform such obligations
and all costs incurred thereby shall be for Contractor's account in accordance
with the Warranty Procedures;provided,however,that the failure to comply
with such Warranty Procedures shall not void the Project Warranties or the
Materials Warranty.
Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 187 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
18.8 Additional Warranty Procedures.Where Owner determines that an immediate need
exists,Owner may undertake immediate corrective action,including contacting the
applicable Vendor directly to seek assistance.An "immediate need"is a situation when
there is:(a)a threat of imminent harm to persons or property;(b)a situation that in
Owner's reasonabledetermination could materially adversely impact the operation of the
Project or the Transmission Grid;or (c)an electric line outage,generation project outage
or customer outage that in Owner's reasonabledetermination requires immediate action.
Where Owner does not take corrective action under this Section 18.8,Owner shall notify
Contractor in accordance with Section 18.7 of the Contract and provide documents as
provided below.Within two (2)days after receipt of said documents,Contractor and
Owner shall confer with regard to the appropriate procedures to utilize in correcting the
Defect and shall within a reasonable period thereafter (not to exceed thirty (30)days)
mutually agree when and how Contractor shall remedy said Defect.If Contractor does
not use its reasonableefforts to proceed to complete said remedy within the time agreed
to,or should Contractor and Owner fail to reach such an agreement within such thirty
(30)day period,Owner shall have the right to perform the necessary remedy,or have
others perform the necessary remedy,in accordance with the Warranty Procedures;
provided,however,that the failure to comply with such Warranty Procedures shall not
O void the Project Warranties or the Materials Warranty,and the costs reasonably incurred
shall be borne by Contractor.
The following procedures ("Warranty Procedures")shall be observed in all Contractor
warranty claims for the Project in connection with which Owner has independently taken
corrective action as set forth above with respect to an "immediate need":
(a)Owner shall promptly provide telephonic notice to Contractor's designated
warranty representative of any failure of the Work to satisfy either the
Project Warranty or the Materials Warranty;
(b)A failure report,which shall contain technical and logistical information
sufficiently detailed to enable Contractor to assess the damage of the
Work and to evaluate appropriate corrective action shall be provided by
Owner within a reasonable period of time after the occurrence of any
event giving rise to a warranty claim;
(c)Warranty claims shall be submitted in accordance with paragraph (d)
below,and shall include,as a required minimum,the following
documents:
(i)Applicablefailure report;
(ii)List of equipment and materials purchased or used in accomplishing
the repair,schedule o7f2-perations,and subcontractors hours applicable
Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial _Companv:Initial
Rocky Mountain Power
Exhibit No.52 Page 188 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
to each claim,and a copy of any internal work orders or purchase
orders preparedin connection with each such claim;
(iii)Owner's maintenance and repair records with respect to the
Equipment for which the claim is being made,including the
manufacturer/vendor part number and serial number and the
identification by part number and serial number of the next major
assembly call out;and
(iv)Copies of invoices received or prepared for costs and expenses
claimed.
(d)All warranty claims pertaining to failure of the Equipment for which
Owner has independently undertaken corrective action pursuant to this
Section 18.8 during any calendar month shall be submitted to Contractor
on or before the last day of the following calendar month.Claims shall be
paid by Contractor on a net 21 day basis.Work performed by Owner
under a warranty claim shall be billed on a time and materials basis as
further defmed below in paragraph (d).Any warranty claim submitted by
Owner that is not disputed by Contractor within ninety (90)days shall be
deemedto have been accepted by Contractor.
(e)"Time and Material"in connection with a warranty claim is defined as
follows:
(i)With respect to "Time,"the product of 115%of the normal hourly
wage (including fringe benefits,insurance and taxes)Owner pays with
respect to its particular employee (not including overhead)multiplied
times the number of hours each employee performed the particular
work.
(ii)With respect to "Material,"115%of the actual purchase price paid by
Owner or an Affiliate to a third party for the materials incorporated or
consumed in connection with the Work;and
(iii)With respect to Work performed by a subcontractor (other than an
entity which is an Affiliate of Owner,Work performed by any such
entity being deemed Work performed by Owner through its own
employees for purposes of this definition),115%of the actual amount
paid by Owner to the subcontractor for such Work.
(f)Owner shall maintain adequate records to support all warranty claims and
allow Contractor access to such records upon not less than ten (10)days'
notice.
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Both Panies have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 189 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
19.EQUIPMENTIMPORTATION;TITLE
19.1 Importation of Equipment.Contractor,at its own cost and expense,shall make all
arrangements,including the processing of all documentation,necessary to import into the
United States Equipment to be incorporated into the Project and any other equipment and
other items necessary to perform the Work and shall coordinate with the applicable
Governmental Authorities in achieving clearance of United States customs for all such
Equipment and other items and,to the extent available under United States law but
without limiting Contractor's liability for any and all import duties,Taxes and levies as
specified in Section 6.2 and Section 6.3,achieving such importation duty-free and tax-
free.In no event shall Owner be responsible for any delays in customs clearance or any
resulting delays in performance of the Work.Such delays in customs clearance shall not
be considered an event of Force Majeure,unless such delay is itself caused by a Force
Majeure event.
19.2 Title.
19.2.1 Contractor warrants good title,free and clear of all liens,claims,charges,
security interests,and encumbrances whatsoever,to all Equipment and other
O items furnished by it or any of its Subcontractors that become part of the Project
or that are to be used for the operation,maintenance,or repair thereof.
19.2.2 Title to all Equipment and other items shall pass to Owner,free and clear
of all liens,claims,charges,security interests,and encumbrances whatsoever,
upon the earlier of payment in full therefor or incorporation into the Project or
delivery to the Site,a Contractor Yard Site,or any laydown area or storage area
used primarily in connection with the Work.
19.2.3 The transfer of title shall in no way affect Owner's rights as set forth in
any other provision of this Contract.Contractor shall have care,custody,and
control of all Equipment and other items (including Equipment and other items
imported into the United States)and exercise due care with respect thereto
consistent with Section 24.1.
19.3 Protection.For the purpose of protecting Owner's interest in all Equipment and
other items with respect to which title has passed to Owner pursuant to Section 19.2 but
that remain in possession of another Person,Contractor shall take or cause to be taken all
steps necessary under Applicable Laws to protect Owner's title and to protect Owner
against claims by other Persons with respect thereto.
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract pnor to execunon
Contractor in]Dal (ompant inn
Rocky Mountain Power
Exhibit No.52 Page 190 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
20.DEFAULT
20.1 Contractor Events of Default.Contractor shall be immediately in default of its
obligations pursuant to this Contract upon the occurrence of any one or more events of
default below (each,a "Contractor Event of Default"):
(a)Contractor or Parent Guarantor becomes insolvent,generally does not pay its
debts as they become due,admits in writing its inability to pay its debts,or
makes an assignment for the benefit of creditors,or insolvency,receivership,
reorganization,or bankruptcy proceedings are commenced by Contractor or
Parent Guarantor (as applicable);
(b)Insolvency,receivership,reorganization,or bankruptcy proceedings are
commenced against Contractor or Parent Guarantor and such proceedings
shall remain undismissed or unstayed for a period thirty(30)days;
(c)Any representation or warranty made by Contractor herein was false or
materially misleading when made and Contractor fails to remedy such false or
misleading representation or warranty,and to make Owner whole for any
O consequences thereof,within thirty (30)days after Contractor receives a
Notice from Owner with respect thereto;
(d)Contractor assigns or transfers (or attempts to so assign or transfer)this
Contract or any right or interest herein,except as expressly permitted under
Article 30;
(e)Contractor fails to maintain any insurance coverages required of it in
accordancewith Article 23;
(f)Contractor fails to perform or observe in any respect any provision of this
Contract providing for the payment of an undisputed amount of money to
Owner and such failure continues for ten (10)days after Contractor receives
Notice from Owner with respect thereto;
(g)Following approval of a Schedule Recovery Plan pursuant to Section 8.3,
Contractor's unexcused failure to meet the schedule set forth in the Schedule
Recovery Plan (as determined from the revised Critical Path Method Schedule
established by the Schedule Recovery Plan);
(h)Contractor is otherwise in breach of any material provision of this Contract,or
has otherwise failed in a material respect to perform its obligations under this
Contract (not otherwise addressed in this Section 20.1)and such breach or
failure continues for thirty (30)days after Contractor receives Notice from
Owner;provided,however,tl at if in Owner's determination such default or
Both Panies have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 191 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
failure is not capable of cure within a thirty (30)day period and within a
fifteen (15)day period after receipt of such Notice from Owner and
Contractor commences and diligently proceeds to cure such default or failure,
then such default or failure shall not constitute a Contractor Event of Default
unless it remains uncured ninety (90)days from the date of the original Notice
from Owner;
(i)The Substantial Completion Date with respect to the Project has not occurred
on or before a date that is sixty (30)days after the Substantial Completion
Guaranteed Date;or the Final Completion Date has not occurred on or before
a date that is sixty (30)days after the Final Completion GuaranteedDate;or
(j)Contractor has incurred the Maximum Aggregate Liquidated Damages;or
(k)Contractor suspends or abandons the Work."Suspend"for the purposes of
this Section 20.l(k)means that Contractor has not accomplished any progress
toward any of the Critical Path Items for a period of thirty (30)or more days
and such suspension is not otherwise permitted under this Contract.
"Abandon"for the purposes of this Section 20.l(k)means that Contractor has
substantially reduced personnel at the Site or removed further required
O equipment from the Site such that,in the opinion of an experienced
construction manager,Contractor would not be capable of maintaining
progress in accordancewith the Critical Path Method Schedule.
20.2 Owner's Rights and Remedies.In the event of a Contractor Event of Default,
Owner or its assignees shall have the following rights and remedies,in addition to any
other rights and remedies that may be available to Owner or its assignees under this
Contract and ApplicableLaws,and Contractor shall have the following obligations:
(a)Owner may,without prejudice to any of its other rights or remedies,terminate
this Contract;
(b)Owner may,without prejudice to any of its other rights or remedies,seek
performance by any guarantor of Contractor's obligations hereunder or draw
upon any applicable Letter of Credit provided in accordance with this
Contract;
(c)If requested by Owner,Contractor shall withdraw from the Site,shall assign
to Owner such of Contractor's subcontracts and purchase orders that are not
subject to Contractor's assignment under Section 10.3 and to the extent
assignable,and Contractor Acquired Permits as Owner may request.If
requested by Owner,Contractor shall deliver and make available to Owner all
information,documents,patents,and licenses of Contractor related to the
Work reasonably necessary to permit Owner to complete or cause the
completion of the Work,and6in connection therewith Contractor authorizes
Both Parties hate caused an indindual with the requisite authont 10 acknowledge this and each page of this Contract poor to execution
Contractor Inn;a]Compant initia
Rocky Mountain Power
Exhibit No.52 Page 192 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
Owner and its agents to use such information in completing the Work.If
requested by Owner,Contractor shall remove such materials,equipment,
tools,and instruments used by and any debris or waste materials generatedby
Contractor in the performance of the Work as Owner may direct,and Owner
may take possession of any or all Drawings and Specifications,Required
Manuals,and Site facilities,related to the Work and necessary for completion
of the Work (whether or not such Drawings and Specifications,Required
Manuals,and Site facilities are complete);
(d)Owner shall have the right (either with or without the use of Contractor's
equipment)to have the Work finished whether by enforcing any security
given by or for the benefit of Contractor for its performance under this
Contract or otherwise,in which case Owner shall have the right to take
possession of and use all construction equipment of Contractor necessary for
completion of the Work,and Contractor shall have no right to remove such
items from the Site until such completion;provided,however,Owner shall be
responsible for any loss or damage incurred (normal wear and tear excluded)
as a result of such use;
(e)Owner may seek equitable relief to cause Contractor to take action or to
O refrain from taking action pursuant to this Contract or to make restitution of
amounts improperly received under this Contract;or
(f)Owner may seek damages as provided in Section 20.3,including proceeding
against any bond,guarantee,Letter of Credit,or other security given by or for
the benefit of Contractor for its performance under this Contract.
20.3 Damagesfor Contractor Default.
(a)In the event of a Contractor Event of Default,but in such case subject to the
limitations of Article 35,Contractor shall be liable to Owner for any and all
actual damages (and also the damages payable in accordance with
subparagraph (b)below)to Owner as a result of such Contractor Event of
Default,it being understood that,to the extent that the actual costs of
completing the Work,including compensation for obtaining a replacement
contractor or for obtaining additional professional services required as a
consequenceof Contractor's Event of Default,exceed those costs that would
have been payable to Contractor but for Contractor's Event of Default,
Contractor shall be obligated to pay the difference to Owner.In addition,in
the event of a Contractor Event of Default,Owner shall be entitled to
withhold further payments to Contractor for the Work performed prior to
termination of this Contract until Owner determines the liability of
Contractor,if any,under this Section 20.3.Upon determination of the total
cost of the Work,Owner shall give Notice to Contractor of the amount,if any,
that Contractor shall pay Owner or Owner shall pay Contractor.Such
Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution
Contractor:Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 193 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
payment hereunder shall be made within twenty-one (21)days after receipt of
such Notice accompanied by reasonably satisfactory documentation
substantiating the amounts payable.
(b)In addition,if,in the event of a Contractor Event of Default set forth in
clauses (g),(i)or (k)of Section 20.1,Owner elects to terminate this Contract
pursuant to Section 20.2(a)above,then Contractor shall immediately pay to
Owner the Maximum Aggregate Liquidated Damages as liquidated damages
for such Contractor Event of Default and for Contractor's failure to proceed
with or make adequate progress towards the completion of the Work as
required by this Contract.Owner and Contractor agree that Owner's actual
damages in the event of any Contractor Event of Default set forth in clauses
(g),(i)or (k)of Section 20.1 would be extremely difficult or impracticable to
determine and that,after negotiation,Owner and Contractor have agreed that
the Delay Liquidated Damages and/or Maximum Aggregate Liquidated
Damages required to be paid hereunder are a reasonable estimate of the
damages that Owner would incur as a result of such a Contractor Event of
Default.
(c)If it is determined for any reason that Contractor was not in default or that its
default was excusable or that Owner was not entitled to the remedy against
Contractor provided above,the termination will be deemedto be a termination
for convenience/early termination pursuant to Article 21.
20.4 Owner Event of Default.Owner shall be in default of its obligations pursuant to this
Contract in the event Owner fails to perform or observe in any respect any provision of
this Contract providing for the payment of an undisputed amount of money to Contractor,
and such failure continues for ten (10)Business Days after Owner receives a Notice from
Contractor with respect thereto ("Owner Event of Default").
20.5 Contractor's Remedies.In the event of an Owner Event of Default,and subject to
Article 35,Contractor shall have all rights and remedies that may be available under
Applicable Laws against Owner with respect to this Contract,including the right to
suspend performance of the Work or to terminate this Contract (and includingthe right to
immediately stop work upon an Owner Event Of Default for non-payment).
21.EARLY TERMINATION
21.1 General.Owner may in its sole discretion terminate all or part of the Work with or
without cause at any time by giving Notice of termination to Contractor,to be effective
upon the receipt of such Notice by Contractor or upon such other termination date
specifically identified by Owner therein.If Owner terminates the Work without cause or
for any cause other than a Contractor Event of Default specified in Section 20.1 or if the
circumstances described in the last paragraph of Section 20.3 apply,then Contractor shall
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract pnor to execution
Contractor Initial Company:lnitial
Rocky Mountain Power
Exhibit No.52 Page 194 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
receive as compensation for the Work performed through the effective date of
termination:
(a)The sum,without duplication,of:(i)the aggregate amount set forth on the
Project Payment Schedule for completion of items of Work that have been
properly completed by Contractor,in accordance with this Contract;(ii)for
each item of Work properly commenced but not yet completed by Contractor
in accordance with this Contract,a percentage of the aggregate amount set
forth on the Progress Payment Schedule for completion of such item based on
the percentageof completion of such item;and (iii)reasonabledemobilization
costs;provided,however that the sum shall not exceed the amount set forth on
the Cancellation Schedule corresponding to the month in which such
termination occurs;minus
(b)Any amounts previously paid to Contractor under this Contract,in respect of
the Contract Price.
21.1.1 Adjustment for Defects.Notwithstanding the foregoing,the amount owed
pursuant to Section 21.1 shall be subject to adjustment to the extent any Work
contains Defects or to the extent of any overpayments by Owner and provided,
O further,that Contractor shall use its reasonableefforts to minimize costs that arise
between the date of its receipt of a Notice of termination and the effective date
thereof,including by promptly notifying its Subcontractors of such termination.
21.1.2 Assumption of Contractor Contracts.Owner shall have the right,at its sole
option,to assume and become liable for any reasonable obligations that
Contractor may have in good faith incurred for its Site personnel and for any
reasonable written obligations and commitments that Contractor may have in
good faith undertaken with third parties in connection with the Work to be
performed at the Site,which obligations and commitments shall not have been
covered by the payments made to Contractor under Section 21.1.If Owner elects
to assume any obligation of Contractor as described in this Section 21.1.2,then,
as a condition precedent to Owner's compliance with any subsection of this
Article 21,Contractor shall execute all papers and take all other reasonable steps
requested by Owner which may be required to vest in Owner all rights,set-offs,
benefits and titles necessary to such assumption by Owner of such obligations
described in this Article 21.Owner shall simultaneously provide to Contractor
indemnities against liabilities thereafter arising under the assumed obligations or
commitments.
21.2 Claims for Payment.All claims for payment by Contractor under this Article 21
must be made within forty-five (45)days after the effective date of a termination
hereunder.Owner shall make payments under this Article 21 in accordance with
Article 7.
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Both Parties hate caused an ndu idual nah the rèquisne authoni)10 ackneniedge the and each page of this t ontract pnor to execution
L ontractor Imual Company Innial
Rocky Mountain Power
Exhibit No.52 Page 195 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
21.3 Termination Payments.The payments described in Section 21.1 include payment
for all costs of Equipment,temporary equipment,materials,labor,transportation,
engineering,design and other services relating to Contractor's performance of its
obligations under this Contract (including any intellectual property rights licensed under
this Contract,expressly or by implication)provided by Contractor.In addition to the
payments described in Section 21.1,Owner shall pay Contractor for:(a)all Taxes on the
Work (but not taxes based on Contractor's income or revenues);and (b)all other duties,
levies,imposts,fees,or charges of any kind (whether in the United States or elsewhere)
arising out of Contractor's or any such Subcontractor's performance of the Work,and
(iii)any duties,levies,imposts,fees,charges,and royalties imposed on Contractor or its
Subcontractors with respect to any such Equipment,materials,labor,or services provided
under this Contract.Except as otherwise provided in Section 6.3,the above-described
payments shall not be increased with respect to any of the foregoing or with respect to
any withholdings in respect of any of the foregoing items that Owner may be required to
make.
22.SUSPENSION
22.1 General.If at any time Owner,in its sole discretion,elects to suspend performance
of the Work,Owner may suspend performance of the Work by giving Notice to
O Contractor.Such suspension shall commence and continue for the period specified in the
suspension Notice.The Contract Price shall be adjusted as provided in clauses (a),(b),
(c)and (d)of Section 22.2 to reflect any additional increased costs of Contractor resulting
from any such suspension,as demonstrated by Contractor to Owner's reasonable
satisfaction.No adjustment shall be made to the extent that performance is suspended,
delayed,or interrupted for any cause due to Contractor's negligence,willful misconduct,
or noncompliance with the terms of this Contract.At any time after the effective date of
the suspension,Owner may require Contractor to commence to resume performance of
the Work upon five (5)Business Days'Notice.
22.2 Contractor's Termination and Compensation Rights If,at the end of the specified
suspension period,Owner has not requesteda resumption of the Work or has not notified
Contractor of any extension of the suspension period (but in no event beyond three
hundred sixty-five (365)days in the aggregate for all such suspensions,other than
suspensions for any reason due to Contractor's negligence,willful misconduct,or
noncompliance with the terms of this Contract)Contractor may terminate this Contract.
Owner shall promptly pay Contractor for the Work performed pursuant to Section 21.1.
In addition,in the event of any such suspension,Owner shall pay Contractor within thirty
(30)days after receipt of Contractor's Invoice for those reasonablecosts incurred during
the suspensionperiod that are documented by Contractor to the reasonable satisfaction of
Owner,to the extent attributable to the suspension,and that are:
(a)For the purpose of safeguarding and/or storing the Work and the materials and
Equipment at the point of fabrication,in transit,or at the Site;
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Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract pnor to execution.
Contractor Initial Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 196 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
(b)For personnel,Subcontractors or rented equipment,the payments for which,
with Owner's prior written concurrence,are continued during the suspension
period;
(c)For costs of demobilization and remobilization as approved by Owner;or
(d)For rescheduling the Work (including penalties or additional payments to
Subcontractors for the same).
22.3 Extension of Time.In the event of any suspension under this Article 22,other than
from a cause due to Contractor's negligence,willful misconduct,or noncompliance with
the terms of this Contract,the Project Guaranteed Dates shall be extended by a period
equal to the suspension period,plus a reasonable period for demobilization and
remobilization approved by Owner,and,provided that the Owner was notified of and
approved suspension of long lead time Equipment orders,for any delays due to such
suspension of long lead time Equipment for which the procurement schedule has been
adversely affected,and the Critical Path Method Schedule and the Progress Payment
Schedule shall be adjusted to account for same.
22.4 Claims for Payment.All claims by Contractor for compensation or extension of
O time under this Article 22 must be made within sixty (60)days after the suspension
period has ended and the Work has been either terminated or resumed.Failure of
Contractor to make such claim within said period shall be deemed a waiver by Contractor
of any such claims.
23.INSURANCE
23.1.General.
23.1.1 Contractor's Insurance.Contractor,at its own expense,shall procure or
cause to be procured and maintain or cause to be maintained in full force and
effect at all times,commencing no later than upon commencement of the Work at
the Site and until expiration of the Warranty Periods,all insurance coverages
specified in Exhibit "O-l"(except that the ocean marine cargo coverage and,to
the extent applicable,construction all risk insurance coverage need only be
maintained in full force and effect until the Substantial Completion Date).All
insurance coverage shall be in accordance with the terms of this Article 23 and
Exhibit "Q-l"and Exhibit "O-3"using companies,to the extent required by
ApplicableLaws,authorized to do business in the states where the work specified
in each Release is to be performed.
23.1.2 Owner's Insurance.Owner,at its own expense,shall procure or cause to
be procured and maintain or cause to be maintained in full force and effect at all
times,commencing no later than upon commencement of the Work at the Site and
until the Substantial Completion all insurance coverages specified in Exhibit "Q-
Both Parties hare caused an mdn idual with the requisite authoritt to acknowledge this and each page of this Contract pnor to execution
Contractor Initial Comparn Initial
Rocky Mountain Power
Exhibit No.52 Page 197 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
Y (except that,to the extent applicable,construction all risk insurance coverage
need only be maintained in full force and effect until the Substantial Completion
Date).All insurance coverages shall be in accordance with this Article 23 and
Exhibit "Q-2"and Exhibit "Q-3"using companies,to the extent required by
ApplicableLaws,authorized to do business in he states where the work specified
in each Release is to be performed.
23.1.3 Non-Violation.Contractor shall not violate nor permit to be violated any
conditions of the policies provided by Owner under the terms of this Contract and
shall at all times satisfy the requirements of the insurance companies issuing
them.All requirements imposed by such policies and to be performed by
Contractor shall likewise be imposed upon and assumed by each Subcontractor.
23.2 Subrogation Waivers.All policies (except Professional Liability and Aircraft
Liability)shall provide for a waiver of subrogation rights against Owner,Owner's
Affiliates,Contractor,and their respective assigns,subsidiaries,Affiliates,directors,
officers,employees,insurers,and underwriters,and of any right of the insurers to any set-
off or counterclaim or any other deduction,whether by attachment or otherwise,in
respect of any liability of any such Person insured under any such policy.Builders all
risk insurance will not waive subrogation rights against manufacturers,suppliers,
O Subcontractors or Vendors for loss or damage caused by faulty design or workmanship in
manufacturing of Equipment.Contractor releases,assigns,and waives any and all rights
of recovery against the Owner,and Owner's Affiliates,subsidiaries,employees,
successors,permitted assigns,insurers,and underwriters that Contractor may otherwise
have or acquire in or from or in any way connected with any loss covered by policies of
insurance maintained or required to be maintained by Contractor pursuant to this Contract
or because of deductible clauses in or inadequacy of limits of any such policies of
insurance.
23.3 Evidence of Insurance.Evidence of insurance required hereunder,in the form
required to be delivered by a Party,but in any event in the form of certificates of
insurance certified by such Party's insurance brokers,shall be furnished by each Party
when required to be delivered no later than the date on which coverage is required to be
in effect pursuant to Exhibit "Q-1",Exhibit "Q-2"and Exhibit "Q-3"as applicable.If
applicable,a copy of the "Builders All Risk"insurance policy required to be provided in
accordance with Exhibit "Q-1"shall be provided to the Owner for its review and
approval (which approval shall not be unreasonably withheld)prior to any construction-
related Work being performed at the Site or the delivery of any Equipment to the Site.If
requested by Owner,copies of the other insurance policies shall be promptly provided by
Contractor to Owner after the coverage date,excluding any premium information.
Contractor's automobile liability,commercial general liability and excess liability
policies shall provide a severability of interests or cross-liability clause applying to such
liability policies;provided,however,that the insurance shall be primary and not excess to
or contributing with any insurance or self-insurance maintained by Owner and contain a
provision that the policies may not be8c2anceledorchanged except:(a)as provided in
Both Parties hate caused an indisidua nah the requisne autnorna lo acknenÌed c this and each page o this Contract prior to execution
Rocky Mountain Power
Exhibit No.52 Page 198 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
Exhibit "Q-1",Exhibit "Q-2"and Exhibit "Q-3"as applicable;or (b)if not therein
provided,without thirty (30)days'or,in the case of nonpayment of premium,ten (10)
days'prior written Notice given by certified mail to Owner and Contractor.Not later
than the one-year anniversary of the date of delivery of the policies of insurance
hereunder or the expiration date of the policy if for a term of more than one year,and not
later than each one-year anniversary or policy renewal date thereafter,each Party shall
deliver copies of the renewal insurance certificates as aforesaid.
23.4 Insurance Coverages.All amounts of insurance coverage under this Contract
specified in Exhibit "Q-1",Exhibit "Q-2"and Exhibit "O-3"are required minimums.
Owner and Contractor shall each be solely responsible for determining the appropriate
amount of insurance,if any,in excess thereof.The required minimum amounts of
insurance shall not operate as limits on recoveries available under this Contract.
23.5 Failure to Maintain Insurance.If at any time the insuranceto be provided by Owner
or Contractor hereunder shall be reduced or cease to be maintained,then (without
limiting the rights of the other Party hereunder in respect of any default that arises as a
result of such failure)the other Party may at its option maintain the insurance required
hereby,and,in such event:(a)Owner may withhold the cost of insurance premiums
expended for such replacement insurance from any payments to Contractor;or (b)Owner
O shall reimburse Contractor for the premium of any such replacement insurance,as
applicable.
23.6 Scope of Coverage.Contractor shall require such automobile liability,commercial
general liability,excess liability insurance and workers'compensation/employer's
liability insurance of Subcontractors who perform services at the Site as shall be
reasonable and in accordance with Industry Standards in relation to the Work or other
items being provided by each such Subcontractor.Each Subcontractor shall provide
evidence of its insurance to Owner prior to performing any Work at the Site.
24.RISK OF LOSS OR DAMAGE
24.1 Contractor Assumption of Risk.From the Full Notice to Proceed Date until the
Substantial Completion Date,Contractor assumes risk of loss and full responsibility for
the cost of replacing or repairing the damage to the Project (including any insurance
deductible and any uninsured losses)and all materials,Equipment,supplies and
maintenance equipment (including temporary materials,equipment and supplies)which
are purchased by Contractor or Owner for permanent installation in or for use during
construction of the Project regardless of whether Owner has title thereto under this
Contract,unless such loss or damage is a result of the negligence or intentional
misconduct of Owner or Owner's agents during such time as such agents are acting under
Owner's control,in which case Owner shall be responsible for the amount of any
deductible amounts under applicable policies as identified in Exhibit "Q-l".Owner shall
bear the risk of loss and be responsible for any damage with respect to the Project after
the Substantial Completion Date or Own3e-r'sexisting structures,materials or equipment
Both Parties huse caused an mdisidual anh the requisite authorits to acknow ledge this and each page of th ontract prior to execunon
Contractor 1nitial Company Imtlal
Rocky Mountain Power
Exhibit No.52 Page 199 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
adjacent to or on the Site,except in the event and to the extent such loss or damage is a
result of:(a)the continuing performance of the Work by the Contractor (including any
Subcontractor);(b)the negligence or intentional misconduct of Contractor or any
Subcontractor (including any of their employees or agents);or (c)a defect or other failure
covered under any warranty set forth herein or any other act,omission or event for which
Contractor is legally liable to Company under contract,law,or equity.
24.2 Loss or Damage;Limitations.If any portion of the Work is lost or damaged during
the period when Contractor has the risk of loss in accordance with Section 24.1,then
Contractor shall replace or repair any such loss or damage and complete the Work in
accordance with this Contract.Notwithstanding the foregoing,to the extent that Owner
has maintained construction all risk insurance for the Project,Contractor shall not be
obligated to replace or repair any such loss or damage unless:(a)Owner has properly
carried and maintained such insurance pursuant to Article 23 and Contractor has received
reasonable assurances from Owner that Owner will prosecute such claim in a
commercially reasonable manner and Contractor will receive the insurance proceeds,if
any,paid under such Owner maintained insurance coverages in accordance with the
disbursement provisions of this Contract;or (b)Owner agrees to pay for such
replacement or repair as requested by Owner in accordancewith Section 17.2.Should a
loss be sustained under a third party liability policy,Contractor shall assume all
responsibilities of an insured under the terms of said insurance.
25.INDEMNIFICATION
25.1 By Owner.Except for matters expressly made Contractor's responsibility hereunder
or otherwise expressly limited as set forth in this Contract,Owner shall defend,
indemnify,and hold harmless Contractor and its Subcontractors,and all their respective
employees,Affiliates,agents,officers,partners and directors from and against all third
party claims,or Losses for bodily injuryor property damage that arise out of or result
from the sole negligence of Owner.
25.2 By Contractor.Except for matters expressly made Owner's responsibility hereunder
and in addition to any other indemnification obligations of Contractor under this
Contract,Contractor shall defend,indemnify,and hold harmless Owner and any Person
acting for or on behalf of Owner and their respective employees,agents,partners,
Affiliates,shareholders,directors,officers,and permitted assigns,from and against all
Losses that directly or indirectly:
(a)Arise out of or result from the prosecutionof the Work by Contractor (including
its Subcontractors)that arise out of or result from any acts or omissions
(including strict liability)of Contractor,its agents,servants,employees or by the
agents,servants or employees of any Subcontractors;
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract pnor to execution.
Contractor Initial Companv Initial
Rocky Mountain Power
Exhibit No.52 Page 200 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
(b)Arise out of or result from the failure of Contractor or Subcontractors to
comply with Applicable Laws or the conditions or provisions of Applicable
Permits;
(c)Arise out of any insurance policy procured under Article 23 being vitiated as
a result of Contractor's failure to comply with any of the requirements set
forth in such policy or any other act by Contractor or any Subcontractor;
(d)Arise out of or result from Contractor's failure to comply with its obligations
under this Contract with respect to Hazardous Materials;or
(e)Arise from any other breach by Contractor of its representations,warranties
and obligations (including any other indemnification provision)under this
Contract.
25.3 Actions by Government Authorities.Contractor shall defend,indemnify,and hold
Owner and their respective employees,agents,partners,Affiliates,shareholders,
directors,officers,and assigns harmless from and against all claims by any Governmental
Authority claiming Taxes or other obligations that are Contractor's responsibility
O pursuant to Section 6.2 and Section 6.3,including Taxes based on gross receipts or
income of Contractor,any of its Subcontractors,or any of their respective agents or
employees with respect to any payment for the Work made to or earned by Contractor,
any of its Subcontractors,or any of their respective agents or employees under this
Contract.
25.4 Notice;Defense;Settlement.An indemnitee under this Article 25 or any other
indemnification provision set forth in the Contract shall,within ten (10)Business Days
after the receipt of written notice of the commencement of any legal action or of any
claims against such indemnitee in respect of which indemnification will be sought,notify
the indemnitor with a written notice thereof.Failure of the indemnitee to give such
written notice will reduce the liability of the indemnitor by the amount of damages
attributable to the failure of the indemnitee to give such written notice to the indemnitor,
but the failure so to notify shall not relieve the indemnitor from any liability that it may
have to such indemnitee otherwise than under the indemnity agreementscontained in this
Article 25.In case any such claim or legal action shall be made or brought against an
indemnitee and such indemnitee shall notify the indemnitor thereof,the indemnitor may,
or if so requested by such indemnitee shall,assume the defense thereof,without any
reservation of rights.After written notice from the indemnitor to such indemnitee of an
election to assume the defensethereof and approval by the indemnitee of counsel selected
by the indemnitor,the indemnitor will not be liable to such indemnitee under this Article
L for any legal fees or expenses subsequently incurred by such indemnitee in connection
with the defensethereof so long as the indemnitor continues to provide such defense.No
indemnitee shall settle any indemnified claim over which the indemnitor has not been
afforded the opportunity to assume the de5fensewithout the indemnitor's written approval.
Both Parties have caused an mdividual with the requisite authority to acknowledge this and each page ofthis ontract prior to execution.
Contractor lmtial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 201 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
The indemnitor shall control the settlement of all claims over which it has assumed the
defense;provided,however,that the indemnitor shall not conclude any settlement that
requires any action or forbearance from action by the indemnitee or any of its Affiliates
without the prior written approval of the indemnitee.The indemnitee shall provide
reasonable assistance to the indemnitor,at the indemnitor's expense,in connection with
such legal action or claim.If the indemnitor assumes the defense of any such claim or
legal action,any indemnitee shall have the right to employ separate counsel in such claim
or legal action and participate therein,and the reasonable fees and expenses of such
counsel shall be at the expense of such indemnitee,except that such fees and expenses
shall be for the account of the indemnitor if:(a)the employment of such counsel has
been specifically authorized by the indemnitor;or (b)the named parties to such action
(including any impleaded parties)include both such indemnitee and the indemnitor and
representation of such indemnitee and the indemnitor by the same counsel would,in the
reasonable opinion of the indemnitee,be inappropriate under applicable standards of
professional conduct due to actual or potential conflicting interests between them.
Notwithstanding anything to the contrary in this Section 25.4,the indemnitee shall have
the right,at its expense,to retain counsel to monitor and consult with indemnitor's
counsel in connection with any such legal action or claim.
26.PATENT INFRINGEMENT AND OTHER INDEMNIFICATION RIGHTS
26.1 Indemnity by Contractor.Contractor shall defend,indemnify,and hold harmless
Owner and its employees,partners,directors,officers and assigns against all Losses
arising from any claim or legal action for unauthorized disclosure or use of any trade
secrets,or of patent,copyright,or trademark infringement arising from Contractor's
performance (or that of its Affiliates or Subcontractors)under this Contract or otherwise
asserted against Owner that either:(a)concerns any Equipment,materials,supplies,or
other items provided by Contractor,any of its Affiliates,or any Subcontractor under this
Contract;(b)is based upon or arises out of the performance of the Work by Contractor,
any of its Affiliates,or any Subcontractor,including the use of any tools or other
implements of construction by Contractor,any of its Affiliates,or any Subcontractor;(c)
is based upon or arises out of the design or construction of any item by Contractor under
this Contract or the operation of any item according to directions embodied in
Contractor's final process design,or any revision thereof,prepared or approved by
Contractor;or (d)affects the Owner's ability to operate the Project.
26.2 Lawsuits.If such claim or legal action for such infringement results in a suit
against Owner the provisions of Section 25.4 shall apply.
26.3 Injunction.If Owner is enjoined from completion of the Project or any part
thereof,or from the use,operation,or enjoyment of the Project or any part thereof,as a
result of such claim or legal action or any litigation based thereon,Contractor shall
promptly use its best efforts to have such injunction removed at no cost to Owner.If any
such claim,suit or proceeding,the Project or any part,combination or process thereof is
alleged to or is held to constitute an in86ringementandits use is permanently enjoined,
Both Parties have caused an md idual with the requisite authority to acknowledge this and each page of this Contract prior to execution
Contractor 1nitial Company initial
Rocky Mountain Power
Exhibit No.52 Page 202 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
Contractor shall at its own expense and without impairing performance requirements,(1)
procure for Owner the right to use the infringing Work,(2)if (1)is not commercially
feasible,modify the infringing Work or part,combination or process thereof so they
become non-infringing,or (3)if (1)and (2)are not commercially feasible,replace the
infringing Work or part,combination or process thereof with non-infringing components
or parts,provided such modification or replacement shall not diminish or alter the
features of or the functionality of the Work.
26.4 Effect of Owner's Actions.Owner's acceptance of the Contractor Deliverables or
proposed or supplied materials and Equipment shall not be construed to relieve
Contractor of any obligationhereunder.
27.CONFIDENTIAL INFORMATION;TITLE TO INTELLECTUAL PROPERTY
27.1.Confidential Information.
27.1.1 Any Confidential Information is disclosed in confidence,and the
transferee shall restrict its use of such information solely to uses related to the
Project or performance of this Contract.Neither the transferee nor any consultant
or other Person to whom any confidential or proprietary information is provided
O in connection with the Project or performance of this Contract shall publish or
otherwise disclose such information to others or use such information for any
purpose except as expressly provided above without the written approval of the
transferor;provided,however,that nothing herein shall limit:(a)the right of
Owner to provide any information regarding Contractor,any Subcontractor,this
Contract,or the Work to any financing entity (or advisors retained on their behalf)
or their successors and assigns or to any potential or actual successor in interest or
to a purchaser of a Party's assets to which this Contract relates (provided,
however,that such disclosures shall be subject to the agreement of such Persons
to keep such information confidential pursuant to the terms of this Section 27.1);
(b)the right of either Party to supply such information to any Governmental
Authority asserting a right to such information,or as may be required by
Applicable Laws;or (c)the right of Owner to disclose,reproduce and/or use as
many copies of any information or documents provided to Owner as Owner in its
sole discretion considers useful or necessary for the furtherance of the Work or in
connection with the operation,maintenance or repair of the Project,regardless of
any notices,legends,or disclaimers on such information or documents.
BES Cyber System Information.Confidential Information of Owner labeled as
BCSI shall be protected consistent with the following requirements:(a)BCSI
shall be protected at all times,either by appropriate storage or having it under the
personal observation and control of a person authorized to receive it;(b)each
person who works with protected BCSI is personally responsible for taking proper
precautions to ensure that unauthorized persons do not gain access to it;(c)
reasonable steps shall be taken to minimize the risks of access to BCSI by
Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution
Contractor:Initial Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 203 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
unauthorized personnel (when not in use,BCSI shall be secured in a secure
container,such as a locked desk,file cabinet or facility where security is
provided);(d)documents or material containing BCSI may be reproduced to the
minimum extent necessary,consistent with the need to carry out the Work,
provided that the reproduced material is marked and protected in the same manner
as the original material;(e)material containing BCSI should be disposed of
through secured shredding receptacles or other secured document destruction
methods;(f)BCSI shall be transmitted only by the following means:(i)hand
delivery;(ii)United States first class,express,certified or registered mail,bonded
courier,or through secure electronic means;(iii)e-mail with encrypted file (such
as,WinZip with password)(the password should not be included in e-mail,but
should be delivered by phone or in an unrelated e-mail not mentioning the
document name;password-protected Microsoft Office documents do not meet the
encryption requirements);and (g)documents or material containing BCSI shall be
returned to Owner or certified destroyed upon completion of the Work.
27.1.2 Notwithstanding the designation of any information as proprietary by a
transferor,such information shall not be deemed proprietary or confidential if it:
(a)was furnished by such Party prior to the execution of this Contract without
restrictions;(b)becomes knowledge available within the public domain;(c)is
O received by either Party from a third party without restriction and without breach
of this Contract;or (d)is or becomes generally available to,or is independently
known to or has been or is developed by,either Party or any of its Affiliates other
than solely as a result of any disclosure of proprietary information by the
transferor to the transferee.
Title to the Confidential Information shall remain with the owner of such
Confidential Information.
27.2 Title to Contractor Deliverables.All Contractor Deliverables and other documents
to be furnished to Owner by Contractor or by any Subcontractor or Vendor and all
modifications made by Contractor to any documents obtained,developed or created
exclusively for the Project by or for Contractor shall be the property of Owner.
Notwithstandingthe foregoing,to the extent Contractor furnishes standard Equipment
manuals or similar materials not created specifically in connection with the Work,Owner
shall obtain ownership only of the copies actually furnished and shall not hold the
copyright thereto.Contractor shall retain the ownership of intellectual property rights in
its standard drawing details,designs,specifications,databases,computer software and
any other proprietary property.
28.INVENTIONS AND LICENSES
Contractor agrees to grant and hereby grants to Owner an irrevocable,non-exclusive,
royalty-free license with respect to all Confidential Information,patents and other
proprietary information of Contractor o8r8anySubcontractor related to the Work now or
Both Panies have caused an individual with the requisite authority to acknowledge this and each page of this Contract pnor to execution.
Contractor Initial Companv lnitial
Rocky Mountain Power
Exhibit No.52 Page 204 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
hereafter owned or controlled by Contractor or a Subcontractor to the extent reasonably
necessary for the operation,maintenance,repair,or alteration of the Project or any
subsystem or component thereof designed,specified,or constructed by Contractor under
this Contract or in connection with any of Owner's electric transmission operations.No
other license in such Confidential Information,patents and proprietary information is
granted pursuantto this Contract.
29.ASSIGNMENT BY OWNER
Without the prior consent of Contractor,Owner may,upon Notice to Contractor,assign
all or part of its right,title,and interest in this Contract and/or the Work to any Affiliate.
In addition,without the prior consent of Contractor,Owner may,upon Notice to
Contractor,assign all or part of its right,title,and interest in this Contract and/or Work to
any Person that acquires the part of the Transmission Grid to which the Project is a part,
whether by sale,merger or other means of transfer.Owner may assign all or part of its
right,title,and interest in this Contract to any other Person with the prior written
approval of Contractor,which approval shall not be unreasonably withheld or delayed;
and upon such assignmentthe Owner shall be relieved of all of its obligations hereunder.
30.ASSIGNMENT BY CONTRACTOR
Contractor understandsthat this Contract is personal to Contractor.Contractor shall have
no right,power,or authority to assign or delegate this Contract or any portion thereof,
either voluntarily or involuntarily,or by operation of law.Contractor's attempted
assignment or delegation of any of its work hereunder shall be null and void and shall be
ineffective to relieve Contractor of its responsibility for the Work assigned or delegated.
31.INDEPENDENT CONTRACTOR
31.1 General.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,or as creating any relationship whatsoever between Owner
and Contractor's employees.Neither Contractor nor any of its employees is or shall be
deemed to be an employee of Owner.
31.2 Employees.Subject to Section 4.5,Section 4.16 and Section 10.1,Contractor has
sole authority and responsibility to employ,discharge,and otherwise control its
employees and Subcontractors.
32.NON-PAYMENT CLAIMS
Contractor shall provide Owner,upon Owner's request,copies of any preliminary notices
filed with Governmental Authorities and any other similar notices received from any of
its Subcontractors related to Work or the Project.If requestedby Owner,Contractor shall
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Both Parties huse caused an indixidual with the requisite authorits to acknnuledge this and each page of this Cornract pnor to execution
Contractor lnitial Companv initial
Rocky Mountain Power
Exhibit No.52 Page 205 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
promptly file a "notice of completion"or similar document with the appropriate
Governmental Authority as allowed by ApplicableLaw.
Contractor shall indemnify and hold harmless Owner and Affiliates (collectively,the
"Lien Indemnitees")and defend each of them from and against any and all Losses arising
out of any and all claims for payment,whether or not reduced to a lien or mechanic's
lien,filed by Contractor (except as permitted pursuant to the final sentence of this Article
2)or any Subcontractor,or other Persons performing any portion of the Work,including
reasonable attorneys'fees and expenses incurred by any Lien Indemnitee in discharging
any such liens or similar encumbrances.If Contractor shall fail to discharge,bond
around or otherwise dispatch in a manner reasonably satisfactory to Owner promptly any
such lien or claim filed against the Project or any interest therein,upon any materials,
Equipment,or structures encompassed therein,or upon the Site and/or premises upon
which they are located,any Lien Indemnitee may so notify Contractor in writing,and
Contractor shall then:(a)satisfy all such liens and claims;or (b)defend Lien
Indemnitees against all such liens or claims and provide assurances of payment as
described in the second to last sentence of this Article 32.If Contractor does not
promptly satisfy such liens or claims,give such Lien Indemnitee reasons in writing that
are satisfactory to such Lien Indemnitee for not causing the release of such liens or
paying such claims,or contest such liens or claims in accordance with the provisions of
O the second to last sentence of this Article 32,any Lien Indemnitee shall have the right,at
its option,after written notification to Contractor,to cause the release of,pay,or settle
such liens or claims,and Owner at its sole option may (i)require Contractor to pay,
within five (5)days after request by Owner;or (ii)offset against any retainage or other
amounts due or to become due to Contractor (in which case Owner shall,if it is not the
applicable Lien Indemnitee,pay such amounts directly to the Lien Indemnitee causing
the release,payment,or settlement of such liens or claims)all costs and expenses
incurred by the Lien Indemnitee in causing the release of,paying,or settling such liens or
claims,including administrative costs,attorneys'fees,and other expenses.Contractor
shall have the right to contest any such lien,provided it first provides to Owner a bond or
other assurances of payment reasonably satisfactory to Owner in the amount of such lien
and in form and substance reasonably satisfactory to Owner.Notwithstanding any
provision of this Contract to the contrary,nothing herein shall affect Contractor's right to
file or otherwise place a lien on the Project,Site,and/or Work (including a mechanic's
lien)as a result of the non-payment by Owner of any undisputed amount owed to
Contractor hereunder.
33.NOTICES AND COMMUNICATIONS
33.1 Requirements.Any Notice pursuant to the terms and conditions of this Contract
shall be in writing and:(a)delivered personally,(b)sent by certified mail,return receipt
requested,or (c)sent by a recognized overnight mail or courier service,with delivery
receipt requested,to the following addresses:
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Both Parties hate caused an mdnidual with the requisuè authority to acknonieJyè this and each page of this Contract prior 10 execution
Rocky Mountain Power
Exhibit No.52 Page 206 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
If to Contractor:Telephone:
Attention:
With a copy to:
Attention:
Telephone:
If to Owner:
With a copy to:
33.2 Effective Time.Notices shall be effective when received by the other Party.
33.3 Representatives.Any technical or other communications pertaining to the Work
shall be with the Parties'designated representative.Each Party shall give Notice to the
other of the names of such representatives.The Project Manager and the Project
Representative shall each have knowledge of the Work and be available at all reasonable
times for consultation.Each Party's representative shall be authorized on behalf of such
Party to administer this Contract,agree upon procedures for coordinating the efforts of
Owner and Contractor,and,when appropriate,to furnish information to or receive
information from the other Party in matters concerning the Work.
34.INTENTIONALLY OMITTED
35.LIMITATIONS OF LIABILITY AND REMEDIES
35.1 Limitations on Damages.Except for the Delay Liquidated Damages payable under
Article 16,and the Maximum Aggregate Liquidated Damages payable under Section
B,and each Party's respective indemnity obligations for third party Losses under
Article 25,Article 26,and any other provision in this Contract imposing indemnification
obligations ,and notwithstanding anything else in this Contract to the contrary,neither
Party nor its Affiliates shall be liable to the other for any indirect,punitive,consequential
or special damages or lost profits,lost revenue or loss of use of the Project,or cost of
purchase or replacement power,whether foreseen or not,arising from a failure to perform
any obligation under this Contract,whether such liability arises in contract,tort
Both Parties hare caused an ndis idual with the requisite authority to acknowledge this and each page of this Comract prior to execunon
Contractor Initial Compan Inilal
Rocky Mountain Power
Exhibit No.52 Page 207 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
(including negligence or strict liability),statutory or otherwise.This Section 35.1 shall
not be construed to limit recovery for any Losses under any indemnity in this Contract,
included Article 25 and Article 26.
35.2 Parent Guaranty and Letter of Credit.
(a)Parent Guarantv.All of Contractor's obligations under this Contract shall be
secured by the Parent Guaranty's.Contractor shall deliver the Parent
Guaranty's (duly executed by the party thereto)to Owner contemporaneously
with Contractor's execution of this Contract.
(b)Letters of Credit.
(1)Performance LOC.Contractor shall deliver such Performance LOC to
Owner within five (5)days after the Effective date of each Release and such
delivery shall be a condition precedent to Owner's further obligations
hereunder.The Performance LOC shall terminate sixty (60)days after the
Substantial Completion Date,provided Contractor has delivered to Owner a
Warranty LOC in accordancewith Section 35.2(b)(2).
O (2)Warranty LOC.The Warranty LOC shall be provided to Owner on or
prior to sixty (60)days after the Substantial Completion Date and Owner shall
not be entitled to draw under such Warranty LOC unless and until the
Performance LOC has been cancelled or terminated in accordance with
subpart (1)above.The Warranty LOC shall be cancelled on the date 60
months after the Substantial Completion Date.
(3)General Terms.The Contractor shall maintain each of the Performance
LOC,the Retainage LOC and the Warranty LOC in full force and effect at all
times as required hereunder.If,at any time,any Letter of Credit ceases to
satisfy the requirements set forth in this Contract,then the Contractor shall
upon four (4)Business Days Notice from Owner deliver a replacement Letter
of Credit that complies with the requirements of this Contract,unless Owner
has drawn any portion or the entire amount of the Letter of Credit pursuant to
Section 35.2(b).
(4)Draw Conditions.Owner shall be entitled to make a demand under a
Letter of Credit one or more times in amount(s)not to exceed the stated value
of the Letter of Credit.Owner may draw on a Letter of Credit,and may draw
multiple times,in amount(s)not to exceed the stated value of the Letter of
Credit in Owner's sole discretion,in accordance with the terms of each such
Letter of Credit.
(5)Improper Draws.Notwithstanding any other provision of this Contract,if
Owner draws on a Letter o9f2C-reditinviolation of the requirements of this
Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract pnor to execution
Contractor lnitial _Companv:Initial
Rocky Mountain Power
Exhibit No.52 Page 208 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
Contract,Owner shall reimburse the Contractor within two (2)Business Days
for such wrongfullydemanded payment or wrongfullyretained portion of a
payment properly demanded,plus interest at the Contract Rate,and,if the
improperly drawn upon Letter of Credit is still outstanding or required to be
outstanding,the Contractor promptly shall cause such reimbursed amount to
be again available for demand thereunder.
(6)Return of Letters of Credit.If the Contractor delivers to Owner a
replacement for any Letter of Credit or (ii)the relevant Letter of Credit shall
have terminated in accordance with the terms of this Contract,then Owner
shall immediately return the relevant Letter of Credit then in Owner's
possession to the issuing bank or Contractor for cancellation.
(7)Transfer by Owner of Letter of Credit.All bank administrative fees
associated with and imposed by the issuer of the Letter Credit in connection
with the transfer by Owner of a Letter of Credit shall be paid by the Owner.
(8)Failure to Renew or Maintain.Contractor shall be in breach of this
Contract if Contractor has not renewed or replaced a Letter of Credit required
to be provided hereunder no later than twenty-one (21)days prior to the stated
O expiration date for,or required renewal or replacement date of,such Letter of
Credit;and upon Contractor's failure to so renew or replace the Owner shall
have the right to draw down the entire amount of such Letter of Credit.
(c)Contractor shall be in breach of this Contract if Contractor has not provided
and maintained any Parent Guaranty or Letter of Credit as required by this
Contract and upon Contractor's failure to so provide and maintain in
accordancewith the terms of this Contract,Owner shall have the right to draw
down the entire amount of the Letter of Credits.If after any such draw by
Owner,the Contractor provides a Letter of Credit satisfying the requirements
of this Contract,the Owner shall within ten (10 Business Days return all
previously unapplied proceedsto the Contractor.
35.3 Limitations on Contractor's Liability.
35.3.1 Aceregate Liability and Exclusions.In no event shall Contractor's liability
pursuant to this Contract,whether arising in contract,warranty,default or
otherwise,be greater in the aggregate than an amount equal to one hundred
percent (100%)of the Contract Price;provided,however,that nothing contained
in this Section 35.3 or in any other provision of this Contract shall be construed to
limit Contractor's liabilities for its obligations:(a)with respect to termination,
cancellation or non-renewal (or other loss of coverage)of any insurance policy as
set forth in Section 25.2(c)of the Contract;(b)with respect to any gross
negligence or willful misconduct or fraud on the part of Contractor;or (c)with
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 209 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vall
O
respect to any of Contractor's indemnity obligations under Article 25,Article 26,
and any other provision in this Contract imposing indemnification obligations.
Notwithstanding anything herein to the contrary,no:(i)liabilities of Contractor to
Owner paid for by insurance carried by Contractor pursuant to Article 23 of this
Contract or by Owner (except deductibles paid by Contractor);or (ii)the cost of
warranty Work performed by any Subcontractor at such Subcontractor's expense
and the cost of any warranty Work paid for by any Subcontractor or recovered by
Contractor from any Subcontractor shall be included in Contractor's aggregate
liability for the purposes of determining the limit on Contractor's liability
pursuant to this Contract.
35.3.2 Maximum Delay Liquidated Damages Amounts.Notwithstanding any
other provisions in this Contract to the contrary,in no event shall Contractor's
aggregate liability under Section 16.1 for Delay Liquidated Damages exceed the
Maximum Aggregate Liquidated Damages.
35.4 Limitation on Owner's Liability.In no event shall the aggregate damages payable
by Owner hereunderexceed the Contract Price (as the same may be modified by Changes
in Work in accordancewith the terms of this Contract);provided,however,that nothing
O contained in this Section 35.4 or in any other provision of this Contract shall be construed
to limit Owner's liabilities for its obligations with respect to any of Owner's indemnity
obligations for third party Losses under Article 25 and any other provision in this
Contract imposing indemnification obligations.Notwithstanding anything herein to the
contrary,no liabilities of Owner to Contractor covered by insurance carried by Owner
pursuant to Article 23 of this Contract or by Contractor (except deductibles paid by
Owner)shall be included in Owner's aggregate liability for purposes of determining the
limit on Owner's liability pursuant to this Contract.
35.5 Releases,Indemnities and Limitations.Releases,indemnities,or limitations on
liability expressed in this Contract shall apply in accordance with the terms of this
Contract,notwithstanding other legal bases of responsibility such as negligence,strict
liability,fault,or breach of contract of the Party indemnified or whose liability is released
or limited.
36.DISPUTES
36.1 Negotiations.Any disputes arising pursuant to this Contract that cannot be
resolved between Owner's Project Representative and Contractor's Project Manager
within fourteen (14)days or,in the case of payment disputes,three (3)Business Days
after receipt by each thereof of Notice of such dispute (specifically referencing this
Section 36.1)shall be referred,by Notice signed by Owner's Project Representative and
Contractor's Project Manager,to the executive officers of the Parties designated in
Section 37.4 as their designated representatives (which shall not be the Owner's Project
Representative or the Contractor's Proje9ctManager)for resolution.
Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract pnor to execution.
Contractor:Initial Company:lnitial
Rocky Mountain Power
Exhibit No.52 Page 210 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
If the Parties,negotiating in good faith,fail to reach an agreement within a reasonable
period of time,not exceeding twenty (20)days or,in the case of payment disputes,ten
(10)days after such referral,then Owner or Contractor may institute proceedings as set
forth in Section 36.2.
36.2 Dispute Resolution.If the Parties,negotiating in good faith,fail to reach an
agreement within the period of time set forth above in Section 36.1,then Owner and
Contractor agree that any and all disputes arising from,relating to or in connection with
the Contract,whether based on contract,tort or otherwise shall be submitted to the
jurisdiction of the federal or state courts located in Utah,to the exclusion of any and all
other courts,forums,venues,and the Parties waive any and all right to contest the
exclusivity of such forum,including any rights based upon the doctrine of forum non
conveniens.
36.3 Work to Continue.Unless otherwise agreed in writing,Contractor shall diligently
carry on the Work and shall not interfere with,restrict or discourage the prompt
completion of any portion of the Work,the correction of any Defects or the provision of
any warranty service during of the pendency of any dispute proceedings,as required
under the terms of this Contract,and Owner shall continue to make undisputed payments
O and perform its obligations under this Contract;provided that,during the pendency of any
dispute proceeding,amounts constituting Delay Liquidated Damages shall be paid and no
set-off against such amounts shall be taken by Contractor and,to the extent Delay
Liquidated Damages are unpaid,Owner may exercise its set-off rights pursuant to
Section 37.17.
37.MISCELLANEOUS
37.1 Severability.The invalidity or unenforceability of any portion or provision of this
Contract shall in no way affect the validity or enforceability of any other portion or
provision hereof.Any invalid or unenforceable portion or provision shall be deemed
severed from this Contract and the balance of the Contract shall be construed and
enforced as if the Contract did not contain such invalid or unenforceable portion or
provision.If any such provision of this Contract is so declared invalid,the Parties shall
promptly negotiate in good faith new provisions to eliminate such invalidity and to
restore this Contract as near as possible to its original intent and effect.
37.2 Governing Law.This Contract shall be governed by the internal laws of the state
where the Work is to be performed excluding its conflict of laws provisions.TO THE
FULLEST EXTENT PERMITTED BY LAW,EACH OF THE PARTIES HERETO
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,UNDER OR IN
CONNECTION WITH THIS CONTRACT.EACH PARTY FURTHER WAIVES ANY
RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract pnor to execution.
Contractor:lnitial Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 211 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE
OR HAS NOT BEEN WAIVED.IF A WAIVER OF JURY TRIAL IS DEEMED BY
ANY COURT OF COMPETENT JURISDICTION TO NOT BE ENFORCEABLE FOR
ANY REASON,THEN TO THE FULLEST EXTENT PERMITTED BY LAW,EACH
OF THE PARTIES HERETO AGREE TO BINDING ARBITRATION.SUCH
ARBITRATION SHALL BE IN ACCORDANCE WITH THE RULES AND
PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION (AAA).
NOTWITHSTANDING ANY AAA RULES AND PROCEDURES OR ANY OTHER
PROVISIONS OR ANY STATE OR FEDERAL LAWS,THE PARTIES AGREE
THAT THE ARBITRATORS SHALL NOT CONSIDER OR AWARD PUNITIVE
DAMAGES AS A REMEDY.UPON THE OWNER'S REQUEST,AAA SHALL
PROVIDE THE PARTIES A LIST OF ARBITRATORS EACH OF WHOM HAVE
EXPERIENCE AND EXPERTISE WITH RESPECT TO CONSTRUCTION.UPON
EACH OF THE PARTIES RECEIPT OF SUCH LIST,EACH PARTY SHALL HAVE
TEN (10)DAYS TO SELECT AN ARBITRATOR.THE TWO SELECTED
ARBITRATORS SHALL THEN SELECT A THIRD ARBITRATOR WITHIN THIRTY
(30)DAYS FROM THE DATE THE INITIAL TWO ARBITRATORS WERE
SELECTED AND THE MATTER SUBJECT TO ARBITRATION SHALL BE
ARBITRATED WITHIN ONE HUNDRED EIGHTY (180)DAYS AFTER THE
SELECTION OF THE THIRD ARBITRATOR.
37.3 Survival of Termination.The representations,warranties,rights and obligations of
the Parties and any other provisions of this Contract which by their nature are intended to
survive the termination or expiration of this Contract shall continue in force and effect
beyond the expiration or termination of this Contract and shall inure to the benefit of the
Parties.
37.4 No Oral Modification.No oral or written amendment or modification of this
Contract (including a Change in Work Form accepted under Article 17)by any officer,
agent,or employee of Contractor or Owner,either before or after execution of this
Contract,shall be of any force or effect unless such amendment or modification or
Change in Work Form is in writing and is signed by any President,any Vice President or
the Chief Executive Officer of the Party (or of the managing member of the Party on
behalfof the Party)to be bound thereby.
37.5 No Waiver.Either Party's waiver of any breach or failure to enforce any of the
terms,covenants,conditions,or other provisions of this Contract at any time shall not in
any way affect,limit,modify,or waive that Party's right thereafter to enforce or compel
strict compliance with every term,covenant,condition,or other provision hereof,any
course of dealing or custom of the trade notwithstanding.All waivers must be in writing
and signed on behalf of Owner and Contractor by the individuals identified in Section
37.1.Time of Essence.Time is of the essence with respect to the performance by
Contractor of its obligations under this Contract.
Both Parnes hate caused an mdnidual wnh the requisne authont)To acknen]edge th:s and each page of this t ontract pner to execution
Rocky Mountain Power
Exhibit No.52 Page 212 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
37.2.Contract Interest Rate.Overdue undisputed payment obligations of the Owner
and the Contractor hereunder shall bear interest from the date due until the date paid at a
rate per annum equal to the lesser of:(a)Prime Rate in effect from time to time plus
three percent (3%);and (b)the highest rate permitted by Applicable Laws.
37.3.Headings for Convenience Onlv.The headings contained herein are not part of
this Contract and are included solely for the convenience of the Parties.
37.4.Third-Party Beneficiaries.The provisions of this Contract are intended for the
sole benefit of Owner and Contractor and there are no third party beneficiaries hereof,
except where otherwise expressly provided,other than assignees contemplated by the
terms herein.
37.5.Language.The language of this Contract is the English language,which shall be
the ruling language in which the Contract shall be construed and interpreted.All
correspondence,Drawings and Specifications,Contractor Deliverables,test reports,
Notices,certificates,Required Manuals and other information shall be entirely in the
English language.
O 37.6.Drafting Interpretations.Preparation of this Contract has been a jointeffort of the
Parties and the resulting documents shall not be construed more severely against one of
the Parties than against the other.
37.7.Further Assurances.Owner and Contractor will each use reasonable efforts to
implement the provisions of this Contract,and for such purpose each,at the request of the
other,will,without further consideration,promptly execute and deliver or cause to be
executed and delivered to the other such assistance,or assignments,consents or other
instruments in addition to those required by this Contract,in form and substance
satisfactory to the other,as the other may reasonably deem necessary or desirable to
implement any provision of this Contract.Additionally,in the event that either Party has
reasonable cause to suspect that the other Party's ability to perform its respective
obligations under this Contract has been substantially impaired,the impaired Party shall
upon request,provide the requesting Party with reasonably adequate assurance of its
intention and ability to continue its performance as required by this Contract.
37.8.Record Retention.Contractor agrees to retain for a period of seven (7)years from
the Final Completion Date or any longer period as may be required by Applicable Laws
all records relating to its performance of the Work or Contractor's warranty obligations
herein,and agrees to cause all Subcontractors engaged in connection with the Work or
the performance by Contractor of its warranty obligations herein to retain for the same
period all their records relating to the Work.
37.9.Binding on Successors.This Contract shall be binding on the Parties hereto and
on their respective successors,heirs and9p7ermittedassigns.
Both Parties have caused an individual with the requisite authority to acknowledge this and each page ofthis Contract prior to execution
Contractor:Initial _Company Initial
Rocky Mountain Power
Exhibit No.52 Page 213 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
37.10.Merger of Prior Contracts.This Contract supersedes any other agreement,
whether written or oral,that may have been made or entered into between Owner and
Contractor or by any officer or officers of such Parties relating to the Project or the Work.
This Contract and Exhibits hereto constitutes the entire agreement between the Parties
with respect to the Project,and there are no other agreements or commitments with
respect to the Project except as set forth herein.
37.11.Counterpart Execution.This Contract may be executed by the Parties hereto in
any number of counterparts (and by each of the Parties hereto on separate counterparts),
each of which when so executed and delivered shall be an original,but all such
counterparts shall together constitute but one and the same instrument.
37.12.Set-Off.Either Party may at any time,but shall be under no obligation to,set off
any and all sums due from the other Party against sums due to such Party hereunder.
37.13.Further Information.To the extent Contractor does not file fmancial statements
with the United States Security and Exchange Commission,the Contractor agrees from
time to time to provide the Owner such information and documents (financial or
otherwise)regarding the Contractor as the Owner may reasonable request at Contractor's
cost and expense.
37.19 Term The Contract shall be effective for Work performed pursuant to a Release
that is authorized during the Contract Term,whether or not such Work is completed prior
to the expiration of such Contract Term.The expiration of the Contract Term shall not
impact the Parties'respective rights or obligations with respect to any Work authorized
prior to expiration of such Contract Term.Moreover,neither the expiration of the
Contract Term nor any earlier termination of this Contract shall impact any warranties,
indemnities,insurance requirements,confidentiality obligations,termination obligations,
or other obligations with by their own terms are intended to survive the completion of
Work,all of which shall continue in full force and effect after the expiration or
termination of this Contract.
38.NERC CIPS COMPLIANCE
38.1 In the event that the Work under this Contract requires any (i)authorized unescorted
physical access to Owner's Facilities (i.e.,Unescorted Personnel),or (ii)authorized
unescorted physical access or authorized cyber access to Owner's CIP Covered Assets
(i.e.,Sensitive Personnel),Contractor,Unescorted Personnel,and Sensitive Personnel
shall be required to comply with North American Electric Reliability Corporation
("NERC")Critical Infrastructure Protection Standards ("CIPS"),as adopted by Owner
and attached hereto as Exhibit "S",Background Check Criteria -NERC /CIPS
Standards.For all Unescorted Personnel and Sensitive Personnel,Contractor shall:
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Both Pames huse caused an ndaidual unh the requisne authon to acknenEdge the and each page of the Comract pner to execution
Contractor [nitial Company Inn:a;
Rocky Mountain Power
Exhibit No.52 Page 214 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
(a)Ensure that Unescorted Personnel and Sensitive Personnel have passed the
background checks outlined in Section 38.3(a)consistent with the Owner's
Background Check Criteria set forth on Exhibit "S"prior to requesting
unescorted physical access and/or cyber access to Owner's Facilities and/or
CIPS Covered Assets,as applicable;
(b)Ensure that Unescorted Personnel and Sensitive Personnel complete Owner
provided or approved initial CIPS compliance training prior to requesting
unescorted physical access and/or cyber access to Owner's Facilities and/or
CIPS CoveredAssets,as applicable;
(c)Ensure that Unescorted Personnel and Sensitive Personnel have passed
Contractor's drug and alcohol exam and are in compliance with Contractor's
substance abuse/drugand alcohol policy as outlined in Section 38.5;and
(d)Keep accurate and detailed documentation to confirm completion dates for
background checks,all CIPS compliance training (initial and annual training,
to the extent applicable),and drug tests,and certify to Owner such
documentation by completing a Contractor/Vendor Information Form,
O attached as part of Exhibit "S"hereto,for each Unescorted Personnel and
Sensitive Personnel.
Contractor shall not allow any Unescorted Personnel or Sensitive Personnel who
have not met the foregoing requirements of this Section 38.1 to perform Work,
unless Contractor has received prior written consent from Owner.
38.2 Additional Access Requirements Specific to Sensitive Personnel.In addition to the access
requirements outlined in Section 38.1,with respect to all Sensitive Personnel,Contractor also
shall:
(a)Ensure that Sensitive Personnel and any Personnel with access to BCSI are
informed of and comply with the requirementsof Article 27 contained herein,as
well as the requirementsset forth herein;
(b)In addition to the initial CIPS compliance training requirement outlined in
Section 38.l(b),ensure that Sensitive Personnel complete Owner provided or
approved supplemental CIPS compliance training within Owner's prescribed
training window,and not less than on an annual basis;and
(c)Immediately report both (i)Sensitive Personnel terminations for cause,and
(ii)all other Sensitive Personnel terminations or changes in employment
status for those who no longer require access,to Owner's Enterprise Service
Desk ("ESD").The ESD is available by calling the Project Representative.
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Isoth Parties have caused an individual with the requisite authority to acknowledge this and each page of this Comract prior to execution
Contractor lninal Company inni
Rocky Mountain Power
Exhibit No.52 Page 215 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
Contractor shall not allow any Sensitive Personnel who have not met the
foregoing requirements of this Section 38.2 to perform Work,unless Contractor
has received prior written consent from Owner.
38.3 Personnel Screening/Background Check Requirements.For all Unescorted
Personnel and Sensitive Personnel,the following requirements must be met by
Contractor:
(a)Contractor shall conduct,at Contractor's cost and expense,the requisite
background checks for the current and past countries of residence of all
Unescorted Personnel and Sensitive Personnel consistent with Owner's
Background Check Criteria set forth on Exhibit "S".All background checks
will be conducted in accordancewith federal,state,provincial,and local laws,
and subject to existing collective bargaining unit agreements or other
agreements,if any;
(b)Following the initial background check to obtain authorization for access,the
background checks shall be updated no less frequently than every seven (7)
years or upon request by Owner,and shall,at a minimum,consist of a social
security number identity verification and seven (7)year criminal background
check,including all convictions for a crime punishable by imprisonment for a
term exceeding one (1)year;
(c)Contractor shall ensure that each of the Unescorted Personnel and Sensitive
Personnel sign an appropriate authorization form prior to background checks
being conducted,acknowledging that the background check is being
conducted,and authorizing the information obtained to be provided to Owner;
(d)Owner has the right to audit Contractor's records supporting each
Contractor/Vendor Information Form submitted to Owner,including
background check results,and to verify that the requisite background checks
and drug tests were performed consistent with Owner's Background Check
Criteria,set forth on Exhibit "S".Contractor shall provide Owner with all
requested records supporting Contractor/Vendor Information Forms within a
reasonable time after receiving such request,and in the form requested by
Owner,but not longer than three (3)Business Days following the date of such
request;
(e)For purposes of this Contract,a background check is considered valid
pursuant to the Owner's Background Check Criteria,set forth on Exhibit "S",
if it was completed within two (2)years prior to the date on which the
Contractor signed a Contractor/Vendor InformationForm for each Unescorted
Personnel and Sensitive Personnel.Regardless of when performed,all
background checks shall be documented pursuant to the requirements set forth
in this Section 38.3;and
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Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 216 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vall
O
(f)In the event Owner notifies Contractor of the impending expiration of the
background check of any Unescorted Personnel or Sensitive Personnel,
Contractor shall provide an updated Contractor/Vendor Information Form
reflecting a refreshed background check within twenty (20)days of receipt of
the notice,in order to avoid revocation of such person's access.
38.4 Contractor Designee.Contractor shall designate one person to be responsible for
compliance with the requirements of this Article 38,and all reporting and inquiries,other
than Sensitive Personnel terminations or changes in employment status,shall be made via
e-mail to Project Representative.Sensitive Personnel terminations or changes in
employment status should be reported to the ESD pursuant to Section 38.2(c).
38.5 Drug Testing.
(a)Contractor shall have and ensure compliance with a substance abuseldrug and
alcohol policy that complies with all applicable federal,provincial and/or
local statutes or regulations.Contractor shall subject each of the Personnel to
a drug test at Contractor's sole cost and expense.Such drug test shall,at a
minimum,be a five (5)Panel Drug Test,which should be recognizable at
testing labs as a "SamHSA5 panel at 50NG -THC cut-off."
(b)For any Personnelwho have had a recent drug test,such recent drug test shall
be documented pursuant to the previous paragraph.Contractor warrants that
Contractor and the Personnel are in compliance with Contractor's substance
abuse/drug and alcohol policy.
(c)During the course of Work performed under this Contract,Contractor shall
keep accurate and detailed documentation of its drug policy and Personnel
drug tests,which it shall submit to Owner upon request.
(d)Contractor shall designate one person to be responsible for compliance with
the requirements of this Article 38 and all reporting and inquiries,other than
Sensitive Personnel terminations or changes in employment status covered in
Section 38.4,shall be made to the Project Representativein a timely manner.
38.6 Department of Transportation Compliance.Contractor shall ensure Department of
Transportation compliance,including but not limited to valid driver's license,equipment
inspections,hours of service and all appropriate documentation for any Personnel who
may drive while on assignment to Owner.
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract prior to execution.
Contractor:Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 217 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
39.CYBER SECURITY
39.1 Scope.This Cybersecurity Article ("Article")applies to any contractor or supplier
(collectively,"Contractor"for purposes of this Article)and its Personnel and
Subcontractors that provide hardware,software,or servicesto the Owner that may impact
the confidentiality,integrity,or availability of the Company's networks,systems,
software,Data,or Confidential Information for the term of the Contract.
39.2 Defined Terms.
"Confidential Information"shall have the meaning as defined in the Contract and in
addition include any information that can be used to identify or distinguish the identity of
an individual,employee,or customer of Company,including but not limited to name,
social security number,date and place of birth,customer account number,customer
address,customer energy usage information,credit or bank account number,passport or
driver's license numbers,or any information that is linked or linkable to an individual,
employee,or customer that is not otherwise classified as public information by Company,
including medical,financial,and employment information.
"Data"shall mean any information,formulae,algorithms,or other content that the
Company or the Company's employees,agents and end users upload,create or modify
using any software provided pursuant to the Contract.Data also includes user
identification information and metadata which may contain Data or from which the
Company's Data may be ascertainable.
"Security Breach"shall mean any act or omission that compromises either the security,
confidentiality,or integrity of Company's Confidential Information,Data,systems and
facilities or Company's physical,technical,administrative or organizational safeguards
and controls relating to the protection of Company's Confidential Information,Data,
systems,and facilities.
Any capitalized terms not otherwise defined herein shall have the meaning in the
Contract.
39.3 Cybersecurity Controls.
(a)Without limiting Contractor's obligations elsewhere in this Article or the
Contract,Contractor shall implement security safeguards and controls to protect
the Company's networks,systems,software,Data,and Confidential Information
that are no less rigorous than accepted industry practices,specifically those set
forth in the latest published version of ISO/IEC 27001 -Information Security
Management Systems-Requirements and ISO/IEC 27002 -Code of Practice for
InternationalSecurity Management.
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Both Parties have caused an individual with the requisite autbonty to acknowledge this and each page of this Contract pnor to execution.
Contractor:Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 218 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
(b)Contractor agrees to notify the Company of known security vulnerabilitiesin
hardware,software,and services provided under the Contract in a timely
manner.
(c)Contractor warrants that the hardware,software,and patches provided under
the Contract will not contain malicious code.Contractor agrees to provide a
method to verify the integrity and authenticity of all software and patches
provided by the Contractor.
(d)Contractor shall follow all applicable Company requirements for all remote
access to Company resources and systems.To the extent Contractor's
Personnel will have interactive remote access to Company's networks,
systems or applications,such access must be performed on a secure
connection.Contractor shall utilize multi-factor authentication provided by
the Company.Authentication tokens and passwords may not be shared
without written permission from the Company's Vice President,Information
Technology.Immediately upon either (i)Personnel termination actions or (ii)
changes in the status of Personnel which removes their need for remote
access,Contractor shall report such termination or change in status to the
Company's Service Desk.
39.4 Oversight of Compliance.Company reserves the right to conduct an assessment,
audit,examination,or review of Contractor's security controls to confirm Contractor's
adherence to the terms of this Article,as well as any applicable laws,regulations,and
industry standards,not more than once per year or upon notification of any Security
Breach or complaint regarding Contractor's privacy and security practices.Company
may elect to obtain the services of a mutually-agreeable third party to conduct this
assessment,audit,examination,or review on behalf of Company.Company shall give
Contractor no less than thirty (30)calendar days'notice of its intent to conduct such
assessment,audit,examination,or review.As part of this assessment,audit,
examination,or review,Company may review all controls in Contractor's physical and/or
technical environment in relation to all Confidential Information being handled and/or
hardware,software,or services being provided pursuant to this Contract.Contractor shall
fully cooperate with such assessment by providing access to knowledgeable personnel,
physical premises,documentation,infrastructure,application software,and systems
relevant to the provision of hardware,software,or services under the Contract.
39.5 Security Breach Procedures;Equitable Relief.In the event of Security Breach of
the contractor or subcontractor affecting the Company,the Company's networks,
systems,software,Data,or the Company's Confidential Information,
(a)Contractor shall:
(i)notify the Company of a Security Breach as soon as practicable,
but no later than 48 hours after Contractor becomes aware of it by
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page ofthis Contract prior to execution
Contractor ininal Compans lnitial
Rocky Mountain Power
Exhibit No.52 Page 219 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
telephone at the following number:[insert applicable company's
Service Desk number];and
(ii)provide the Company with the name and contact information for
any Personnel who shall serve as Contractor's primary security
contact and shall be available to assist the Company in resolving
obligations associated with a Security Breach;
(b)Immediately following Contractor's notification to the Company of a Security
Breach,the Parties shall coordinate with each other to investigate such Security
Breach.Contractor agrees to coordinate with Company in Company's handling of
the matter,including:(i)assisting with any investigation and (ii)making available
all relevant records and other materials required to comply with applicable law,
regulation,industry standards,or otherwise reasonably required by Company.
(c)Contractor shall use best efforts to immediately remedy any Security Breach
and prevent any further or recurrent Security Breach at Contractor's expense in
accordance with applicable privacy laws,regulations,and standards.Contractor
shall reimburse Company for actual reasonable costs incurred by Company in
responding to,and mitigating damages caused by,any Security Breach,including
all costs of notice and/or remediation pursuant to this section.
(d)Contractor shall fully cooperate at its own expense with Company in any
litigation or other formal action deemed reasonably necessary by Company to
protect its rights relating to the use,disclosure,protection,and maintenance of its
Confidential Information and Data.
(e)Contractor acknowledges that any breach of Contractor's obligations set forth
in this Article may cause Company substantial irreparable harm for which
monetary damages would not be adequate compensation and agrees that,in the
event of such a breach or threatened breach,Company is entitled to seek equitable
relief,including a restraining order,injunctive relief,specific performance and
any other relief that may be available from any court,in addition to any other
remedy to which Company may be entitled at law or in equity.Such remedies
shall not be deemedto be exclusive but shall be in addition to all other available
remedies at law or in equity,subject to any express exclusions or limitations in
the Contract to the contrary.
39.6 Network Security &Privacy Liability.If the Work under the Contract involves
the rendering of IT services including,but not limited to:software,software or hardware
or systems development or consulting services;internet/application services (e.g.,web
hosting);providing content;connections to systems,technology or network(s);or if
Contractor in any way collects,obtains,maintains or in any way accesses or uses
Confidential Information or Data,then Contractor,and its Subcontractors,shall maintain
Network Security &Privacy Liability coverage,which can be included via evidenced
endorsement to Professional Errors &
1
missions coverage,throughout the term of this
Contractor innial Company Innial
Rocky Mountain Power
Exhibit No.52 Page 220 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
Contact and for a period of two (2)years thereafter,with a minimum required limit of
$5,000,000 Each Claim.
[Signature Page Follows]
O
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Both Parties have caused an individual with the requisite authonty to acknowledge this and each page of this Contract pnor to execution
Contractor:Initial Company:Initial
Rocky Mountain Power
Exhibit No.52 Page 221 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
O
IN WITNESS WHEREOF,the Parties hereto have caused this Contract to be executed as
of the date and the year first above written.
OWNER:
By:
Name:
Title:
CONTRACTOR:
By:
Name:
Title:
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Both Parties have caused an individual with the requisite authority to acknowledge this and each page of this Contract pnor to execution.
Contractor Initial Company Initial
Rocky Mountain Power
Exhibit No.52 Page 222 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
lVIASTER CONSTRUCTION CONTRACT
BETWEEN
PACIFICORP
AND
FOR
LINE SERVICE AGREEMENT
INCLUDINGDISTRIBUTION,TRANSMISSION,AND SUBSTATIONCONSTRUCTIONAND MAINTENANCE
TABLE OF CONTENTS
PAGE
ARTICLE l.DEFINITIONS.................................................l
ARTICLE 2.DESCRIPTION OF WORK .................................................3
ARTICLE 3.PERIOD OF PERFORMANCE.................................................4
O ARTICLE 4.RELEASES ................................................4
ARTICLE 5.CONSIDERATION.................................................4
ARTICLE 6.PAYMENT.................................................6
ARTICLE 7.PROGRESS REPORTING ................................................7
ARTICLE 8.TAXES..................................................................8
ARTICLE 9.ACCOUNTINGAND AUDITING..................................................8
ARTICLE 10.CREDIT REQUIREMENTS..................................................8
ARTICLE 11.DEFAULT SECURITY.................................................8
ARTICLE 12.WITHHOLDING PAYMENT.................................................9
ARTICLE 13.PERFORMANCE CRITERIA.................................................9
ARTICLE 14.KEY PERSONNEL ..............................................................................9
ARTICLE 15.DESIGNATED REPRESENTATIVEAND NOTICES................................................9
ARTICLE 16.QUALITYASSURANCE ................................................10
ARTICLE 17.INSPECTION AND TESTING ..............................................10
ARTICLE 18.CORRECTION OF WORK................................................ll
ARTICLE 19.CHANGES...............................................ll
ARTICLE 20.WARRANTY...............................................11
ARTICLE 21.INSURANCE................................................12
ARTICLE 22.INDEMNIFICATION .......................................................14
ARTICLE 23.ACCESS TO COMPANY'S FACILITIES..................................................14
ARTICLE 24.SUBSTANCE ABUSE;DRUG AND ALCOHOL POLICY ..............................................15
O
i
Rocky Mountain Power
Exhibit No.52 Page 223 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
ARTICLE25.CONTRACTOR'SPERSONNEL;DRUGS,ALCOHOL AND FIREARMS................................................16
ARTICLE 26.DEPARTMENTOF TRANSPORTATION...............................................16
ARTICLE27.BUSINESS ETHICS................................................16
ARTICLE28.RISK OF LOSS................................................16
ARTICLE29.LABOR..................................................................................17
ARTICLE30.CONTRACTOR-FURNISHED MATERIALS.................................................17
ARTICLE 31.COMPANY-FURNISHED MATERIALS................................................................17
ARTICLE32.TEMPORARYCONSTRUCTION FACILITIESAND UTILITIES...............................................17
ARTICLE33.REVIEW OF DELIVERABLES .............................................17
ARTICLE34.ALLOCATION..................................................18
ARTICLE35.SITE REGULATIONS...................................................................................................................................18
ARTICLE 36.HEALTH,SAFETYAND ENVIRONMENTAL;INCIDENT,ACCIDENTAND DAMAGE PREVENTION18
ARTICLE37.HAZARDOUSMATERIALS .................................................19
ARTICLE38.PROTECTION OF EXISTING FACILITIES...................................................19
ARTICLE39.PRESERVATIONOF PUBLIC/PRIVATEACCESS....................................................19
ARTICLE40.DISTRIBUTION AND TRANSMISSIONFACILITIES ACCESS.................................................19
ARTICLE41.SURVEYING................................................20
ARTICLE42.PROGRESS MEETINGS.......................................................20
ARTICLE43.SUPERINTENDENCE BY CONTRACTOR..................................................20
ARTICLE44.USE OF PREMISES AND TRESPASS..................................................20
ARTICLE45.UNDERGROUND OBSTACLES..................................................20
ARTICLE46.COOPERATION WITH OTHERS..................................................21OARTICLE47.CLEANUP ..................................................21
ARTICLE48.LIENS .............................................................................................................................................................21
ARTICLE49.CONFLICTS,ERRORS,OMISSIONS,OR DISCREPANCIES IN CONTRACT DOCUMENTS....................21
ARTICLE 50.LIQUIDATED DAMAGES.................................................21
ARTICLE51.PAYMENT BONDS..............................................................................22
ARTICLE 52.CLAIM NOTICE AND RESOLUTION PROCEDURE..................................................22
ARTICLE 53.SUSPENSION OF WORK..................................................22
ARTICLE 54.TERMINATION FOR CONVENIENCE.................................................22
ARTICLE55.TERMINATIONFOR CAUSE...................................................23
ARTICLE 56.SCHEDULE................................................24
ARTICLE 57.DELAYS...................................................25
ARTICLE58.SCHEDULED OUTAGES ................................................26
ARTICLE59.SITE INVESTIGATION ...............................................26
ARTICLE 60.CHANGED CONDITIONS.................................................26
ARTICLE 61.CYBER SECURITY.....................................................26
ARTICLE 62.USE OF PORTIONS OF THE WORK................................................30
ARTICLE 63.HISTORICAL ARTIFACTS................................................30
ARTICLE 64.COMPLIANCEWITH LAWS................................................30
ARTICLE 65.INDEPENDENT CONTRACTOR...................................................................................30
ARTICLE66.RELEASE OF INFORMATION -ADVERTISING AND PROMOTION.................................................30
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ARTICLE 67.CONFIDENTIAL INFORMATION;NONDISCLOSURE .................................................30
ARTICLE 68.OWNERSHIP OF DESIGNS,DRAWINGS,AND WORK PRODUCT.................................................31
ARTICLE 69.AS-BUILT DRAWINGS.......................................................31
ARTICLE70.PATENTAND COPYRIGHT INDEMNITY ................................................32
ARTICLE 71.NONEXCLUSIVERIGHTS..................................................32
ARTICLE 72.ESTIMATED REQUIREMENTS .................................................32
ARTICLE 73.ASSIGNMENT...................................................32
ARTICLE 74.SUBCONTRACTS..................................................32
ARTICLE75.NONWAIVER.................................................32
ARTICLE 76.SEVERABILITY .....................................................32
ARTICLE77.APPLICABLE LAW AND VENUE .................................................32
ARTICLE78.BUY AMERICA CLAUSE.......................................................................................................33
ARTICLE79.ENTIRE CONTRACT;DOCUMENTS INCORPORATED BY REFERENCE.....................................................33
ARTICLE80.EXECUTION AND EFFECTIVE DATE.......................................................34
EXHIBITS
Exhibit A PacifiCorp Transmission and Distribution Construction Standards,Electric Service Requirements,
Materials Specifications,and other Engineering and Construction Publications (On-going protected
access to an electronic site will be provided.)
Exhibit B Unit Pricing
Exhibit B-1 Unit Pricing Rate Schedule for Underground Units for Oregon,Califomia,Washington,Idaho,Utah,O and Wyoming
Exhibit B-2 Unit Price Rate Schedule for Pole Replacement for Oregon,Califomia,Washington,Idaho,Utah,and
Wyoming
Exhibit B-3 Unit Price Rate Schedule for Overhead Maintenance for Oregon,Califomia,Washington,Idaho,Utah,
and Wyoming
Exhibit B-4 Unit Price Rate Schedule for NESC /GO95 Corrections for Oregon,Califomia,Washington,Idaho,
Utah,and Wyoming
Exhibit B-5 Unit Price Rate Schedule for Raptor Units for Oregon,Califomia,Washington,Idaho,Utah,and
Wyoming
Exhibit B-6 Unit Price Rate Schedule for Estimating Deteriorated Pole Replacement for Oregon,Califomia,
Washington,Idaho,Utah,and Wyoming
Exhibit B-7 Unit Price Rate Schedule for Estimating Underground Facilities for Oregon,Califomia,Washington,
Idaho,Utah,and Wyoming
Exhibit C Time and Expense Pricing
Exhibit C-1 Schedule for Labor Hourly Rate for Oregon,Califomia,Washington,Idaho,Utah,and Wyoming
Exhibit C-2 Hourly Rate Schedule for Equipment for Oregon,Califomia,Washington,Idaho,Utah,and Wyoming
Exhibit D-1 Form of Purchase Order
Exhibit D-2 Form of Release
Exhibit E Form of Lien Release
Exhibit F Contractor Invoicing Requirements
Exhibit G Letter of Credit Terms/Form of Acceptable Letter of Credit,Drawing Certificate and Transfer
Certificate
Exhibit H RESERVED
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Exhibit I Contractor Tool List Requirements
Exhibit J Additional Terms and Conditions for Major Substation,Transmission and Distribution Projects
Exhibit K Special Conditions for Contractor Health,Safety,and Environmental Guidelines
Part 1 Contractor Health,Safety and Environmental Requirements
Part 2 Contractor Incident Report
Part 3 Incident Notice
Part 4 Tailboard and Risk Assessment
Part 5 Underground Tailboard and Risk Assessment
Part 6 System Operations Tailboard and Risk Assessment
Part 7 Switching Terminology Policy
Part 8 Switching Order Processing Policy
Part 9 Tobacco-Free Workplace Policy
Exhibit L RESERVED
Exhibit M PacifiCorp Customer Guarantees Overview for Contractors
Exhibit N Waste Management Guideline for Wood Waste
Exhibit N-1 Bill of Sale -Pacific Power
Exhibit N-2 Bill of Sale -Rocky Mountain Power
Exhibit N-3 Oil Spill Response and Clean-up Procedure -Pacific Power
Exhibit N-4 Oil Spill Response and Clean-up Procedure -Rocky Mountain Power
Exhibit N-5 Managementof Electrical Equipment Removed from Service -Pacific Power
Exhibit N-6 Managementof Electrical Equipment Removedfrom Service -Rocky Mountain Power
Exhibit N-7 Excavation and Disposal of Soil from Substations -Pacific Power
Exhibit N-8 Excavation and Disposal of Soil from Substations -Rocky Mountain Power
Exhibit N-9 EPA Treated Woods Consumer Information Sheets
Exhibit O Testing and Commissioning Specification
O Exhibit P Form of Buy America Certification
Exhibit Q RESERVED
Exhibit R Contractor /Vendor Information Form
Exhibit S-1 General Conditions for Performing Contract Design/Estimating Services
Exhibit S-2 PacifiCorp Electronic Communications and Computer Resources Policy
Exhibit T Requirements for Interactions with Company Customers
Exhibit U Critical Path Schedule Instructions
Exhibit V RESERVED
Exhibit W Change Order Form
Exhibit X RESERVED
Exhibit Y Customer Guarantees
Exhibit Z Environmental Requirements
Exhibit AA RESERVED
Exhibit AB RESERVED
Exhibit AC Sales Tax Compliance
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MASTERCONSTRUCTIONCONTRACT
BETWEEN
PACIFICORP
AND
FOR
OUTSIDEELECTRICAL SERVICES (LINE CREw SERVICES)
INCLUDINGDISTRIBUTION,TRANSMISSION,AND SUBSTATION CONSTRUCTIONAND MAINTENANCE
PARTIES
The Parties to this Master Construction Contract for Outside Electrical Services (Line Crew Services)including
Distribution,Transmission and Substation Construction and Maintenance ("Contract")are PACIFICORP (hereinafter "Company")
whose address is 825 NE Multnomah Street,Portland,Oregon 97232 and (hereinatter "Contractor")whose address isO.Company and Contractor are hereinafter sometimes collectively referred to as "Parties"and individually as a "Party,"as the
context may require.
ARTICLE 1.DEFINITIONS
As used in this Contract and any individual Release entered into hereunder,the followingterms have the meanings set
forth below.Unless another meaning is specifically required by the context,when the followingcapitalized terms are used,
such terms shall refer to the definitions set forth herein.All exhibits listed in the Table of Contents shall form a part of this
Contract whether or not referenced in the master terms and conditions below.
BES Cyber System Information (BCSI)shall mean information concerning CIPS Covered Assets that:(i)relates to the
production,generation or transmission of energy;(ii)could be useful to a person planning an attack on critical infrastructure;and
(iii)provides strategic information beyond the geographic location of the critical asset,and which is identified as BCSI by
Company.BCSI also includes any information concerning CIPS Covered Assets that has been identified by Company as Critical
Infrastructure Information (or CII).
CIPS Covered Assets shall mean any assets identified by Company as "critical assets,""critical cyber assets,""BES assets,"
"BES cyber assets,"or "BES cyber systems,"as those terms are defined in the North American Electric Reliability Corporation
(NERC)Glossary of Terms."BES"refers to the "Bulk Electric System"as defined by NERC.
Company's Facilities shall mean any facilities owned,operated or otherwise controlled by Company which require Company
authorization to obtain access.
Company-Furnished Materials shall mean any products,equipment,materials,goods,parts,associated hardware and spare parts
specifically identified in the Scope of Work as being furnished by Company in conjunction with the improvements installed by
Contractor under any Release.
Contract Price shall mean the consideration specified for Work in a Release.Except as otherwise provided in a Release,the
Contract Price shall be a fixed-price,lump sum amount or unit price.
Contractor-Furnished Materials shall mean all products,equipment,materials,goods,parts,associated hardware and spare
O parts to be furnished by Contractor and made part of the improvements installed by Contractor under any Release.Except for
products,equipment,materials,goods,parts,associated hardware and spare parts specifically identified as Company-Furnished
Materials,all items necessary to complete the Work shall be deemed to be Contractor-Furnished Materials.
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Critical Contractor Milestones shall mean any interim completion milestones specified in a Release for which Contractor
guarantees completion by a specific date prior to the Substantial Completion Guaranteed Date.
Critical Infrastructure Information (CII)shall mean information concerning CIPS Covered Assets that:(i)relates to the
production,generation or transmission of energy;(ii)could be useful to a person planning an attack on critical infrastructure;
and (iii)provides strategic information beyond the geographic location of the critical asset,and which is identified as CII by
Company.
Critical Path Schedule shall mean,with respect to each Release,a critical path method schedule prepared by Contractor
describing the time of completion of critical path items,and setting forth the dependencies among all critical path items that
affect the achievement of the Project Guaranteed Dates.
Deliverables shall mean all drawings,manuals,calculations,specifications,maps,sketches,designs,tracings,notes,testing
results,reports,data,computer programs,models,plans,lien releases,attestations,programs,procedures,protocols,samples and
other documents and deliverables that are to be provided,obtained,prepared and delivered to Company by Contractor,as set forth
in the applicable Scope of Work,the applicable Release and this Contract.
Default Security shall have the meaning set forth in ARTICLE 11,DEFAULT SECURITY.
Emergency shall mean conditions under which,without effecting an immediate repair or replacement:(i)life,health,or safety
would be endangered by operation of Company's assets;(ii)Company's assets would be unavailable for commercial use;(iii)
Company's customer's would not have electrical service;or (iv)Company's assets could not be operated,or demonstrated to be
operating,in compliance with a)environmental regulations;b)regulations,policies or procedures issued by governmental or
regulatory authorities;or c)prudent utility practice.
Final Completion shall mean satisfaction of all of the conditions for Final Completion as set forth in ARTICLE 56,SFnHauUnLcEh
list Items shall mean,with respect to the facilities constructed or installed pursuant to any Release,Work that:
(a)requires completion or contains defects;(b)does not impede the ability of Company to safely operate the facilities in
accordance with applicable laws,permits and industry standards;(c)does not affect the operability (including the capacity,
efficiency,reliability,or cost effectiveness),safety or mechanical or electrical integrity of the facility or Company's
transmission system;and (d)the completion or repair of which will neither interfere with,nor adversely affect,the
performance of the facility or Company's transmission system.
Force Majeure Event shall mean a delay caused by any national or general strikes (but excluding strikes relating solely to the
work force of Company,Contractor or a Subcontractor),fires,riots,acts of God,acts of the public enemy,floods,acts of
terrorism,unavoidable transportation accidents or embargoes,or other events which are:(i)not reasonably foreseeable as of
the date the applicable Release was executed;and (ii)attributable to a cause beyond the control and without the fault or
negligence of the Party incurring such delay.The term Force Majeure Event does not include a delay caused by seasonal
weather conditions,inadequate construction forces,general economic conditions,changes in the costs of goods,or Contractor's
failure to place orders for Contractor-Furnished Materials,construction equipment or other items sufficiently in advance to
ensure the Work is completed in accordance with the Contract and the applicable Release.
Hazardous Materials shall mean any chemical,material or substance in any form,whether solid,liquid,gaseous,semisolid,or
any combination thereof,whether waste material,raw material,chemical,finished product,byproduct,or any other material or
article,that is defined,listed or regulated,or as to which liability could be imposed,under applicable laws as a "hazardous"or
"toxic"substance or waste or material,or as a "pollutant"or "contaminant"(or words of similar meaning or import),or is
otherwise listed or regulated under applicable laws,or as to which liability could be imposed,under applicable laws including,
without limitation,petroleum products,petroleum derived substances,radioactive materials,asbestos,asbestos containing
materials,polychlorinated biphenyls,urea formaldehyde foam insulation,and lead containing paints or coatings.
Material Adverse Change (MAC)shall mean,with respect to Contractor,if Contractor,in the reasonable opinion of
Company,has experienced a material adverse change in Contractor's financial condition or Contractor's ability to fulfill its
obligations under this Contract including,but not limited to,any such change that results in its inability to satisfy ARTICLE
10,CREDIT REQUIREMENTS or ARTICLE 11,DEFAULT SECURITY,including any event or circumstance that would
give Company the right to terminate for cause pursuant to ARTICLE 55,TERMINATION FOR CAUSE.
Net Replacement Costs shall mean the "cost to cover"remedy available to Company in the event of a default by Contractor under
this Contract and each Release.The Net Replacement Costs shall be calculated by:(i)subtracting the unpaid balance of the total
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price of the Work to be performed from the costs incurred by Company to obtain a replacement contractor to finish the Work that
Contractor was otherwise obligated to provide under this Contract or any Release (or the costs,internal or third-party,incurred by
Company to complete such remaining Work itself);and (ii)adding a sum for additional managerial,administrative,and other
reasonable costs Company incurs as a result of Contractor's default.
Notice shall mean a formal written communication which,pursuant to the Contract,one Party must deliver to the other in order to
invoke a Contract right set forth herein.
Personnel shall mean the employees of Contractor or any of its agents,Subcontractors,or independent contractors who are
employed to perform Work under this Contract.
Project Guaranteed Dates shall mean,with respect to a given project,the Critical Contractor Milestones and the Substantial
Completion Guaranteed Date.
Qualified Person shall have the meaning set forth in 29 CFR §1910.
Release shall mean any project-specific Work release or Purchase Order issued by Company from time to time pursuant to the
master terms and conditions set forth in this Contract.
Scope of Work shall mean the requirements regarding the Work,as detailed in the "scope of work"or "specifications"attachment
appended to (or incorporated by reference in)the Release for specific Work assignments and including any standards,
specifications,drawings,permits,or other contract documents attached to or incorporated by reference.
Sensitive Personnel shall mean all Personnel with authorized unescorted physical access or authorized cyber access to
Company's CIPS Covered Assets.
Subcontractor shall mean any entity or person (including subcontractors at any tier,laborers and materials suppliers)having an
agreement with Contractor or any other Subcontractor to perform a portion of Contractor's obligations under this Contract.
Substantial Completion Guaranteed Date shall mean,with respect to a given project,the date specified therefore in a given
Release.
Term shall mean the period commencing January 1,2018,and continuing thereafter until December 31,2020,unless earlier
terminated as provided herein.
Unescorted Personnel shall mean all Personnel with authorized unescorted physical access to Company's Facilities.
Work shall mean all obligations,duties,requirements,and responsibilities of Contractor for the successful completion of each
project described in a Release,including providing all Contractor-Furnished Materials and construction services (including
obtaining all applicable licenses and permits)in accordance with the terms and conditions set forth in the Contract,and inclusive
of those detailed within a project-specific Release.
Work Site shall mean the location or locations on Company's property,right of way,material loading,unloading and laydown
yards,or adjacent areas where the Work is to be performed,as specified in the applicable Scope of Work.
Workers'Compensation Laws shall mean the statutory requirements of the state and/or federal regulations (e.g.,FELA,
USL&H,Jones Act)where the Work is to be performed.
Work Site shall mean the location or locations on Company's property,right of way,material loading,unloading and laydown
yards,or adjacent areas where the Work is to be performed,as specified in each applicable Release.
ARTICLE 2.DESCRIPTION OF WORK
Contractor shall perform the Work in accordance with the Scope of Work.In addition to the Scope of Work,Contractor
shall ensure that the Work is performed in compliance with all applicable construction standards,electric service requirements,
materials specifications,and other engineering and construction publications (collectively the "General PacifiCorp Work
Requirements")as may be effective at the time that Work is performed.On-going protected access to an electronic site will be
provided to Contractor and is hereby incorporated into this Contract by reference as Exhibit A.Contractor acknowledges the
separate receipt of Exhibit A.Contractor further acknowledges that revisions to the General PacifiCorp Work Requirements will be
made periodically.Company may make revisions available to Contractor via dissemination through a centralized electronic
O database for which Contractor will be granted a login name and password.Revisions to the General PacifiCorp Work Requirements
shall be effective when so disseminated or published.Contractor shall be solely responsible for informing itself as to the content of
the General PacifiCorp Work Requirements.Contractor shall be responsible for complying with the most current version of the
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General PacifiCorp Work Requirements,regardless of whether such General PacifiCorp Work Requirements are specifically
referenced in the Scope of Work.
Any estimating Work to be performed by Contractor shall be performed in accordance with Exhibit S-1 and S-2.
Contractor shall be solely responsible for the means,methods,techniques,sequences and procedures of performing the Work,
except as otherwise specifically provided in the Contract or in the applicable Release.Except as otherwise specifically provided in
this Contract or in the applicable Release,Contractor shall provide all necessary utilities and support services.
ARTICLE 3.PERIOD OF PERFORMANCE
The Contract shall be effective for Work performed pursuant to a Release that is authorized during the Term of the
Contract,whether or not such Work is completed prior to the expiration of such Term.The expiration of the Term shall not
impact the Parties'respective rights or obligations with respect to any Work authorized pursuant to a Release executed prior to
expiration.Moreover,neither the expiration of the Term nor any earlier termination of this Contract or any Release issued
hereunder shall impact any warranties,indemnities,insurance requirements,confidentiality obligations,termination
obligations,or other obligations which by their own terms are intended to survive the completion of the Work,all of which
shall continue in full force and effect after the expiration or termination of this Contract.
The Release shall specify a completion date for the Work,and may also specify critical interim schedule milestones that must
be met by Contractor.Contractor shall proceed in accordance with such schedule requirements,and shall comply (as
applicable)with the detailed schedule of Work included in (or developed in accordance with)the Release.Time and schedule
requirements included within the Release are of the essence.By accepting and commencing Work pursuant to a Release,
Contractor confirms that the time and schedule requirements included in the Release are reasonable for performance of the
Work.
ARTICLE r4.eaLp
o
eSc
o be performed under this Contract,the Company will submit to Contractor a Release.A unique
Release,each with a corresponding unique identifying number,shall be provided for each new project issued under this
Contract.The Release will identify and describe:(i)the Scope of Work for the project;(ii)the location of the Work Site;(iii)
the project schedule,schedule milestones,and guaranteed dates for the Work;(iv)the fixed price,unit price or other pricing
structure and payment terms that will apply to the project;(v)whether the performance of such Work will require use of
Unescorted Personnel or Sensitive Personnel;(vi)the designated project representatives for each Party;(vii)project-specific
invoicing instructions;(viii)whether the project or Work constitutes a Major Substation,Transmission and Distribution Project
and (ix)any other project-specific terms and conditions applicable to the Work.The terms and conditions of this Contract shall
apply to each Release,as supplemented by the project-specific elements of the Work identified in the Release.This Contract
and the applicable Release (including the Scope of Work for the project and documents specifically incorporated into the
Release by reference)shall,together,constitute the entire agreement between the Parties with respect to any specific Work
assignment under this Contract,to the exclusion of any contrary or additional terms contained in any proposal,
acknowledgement,confirmation statement,invoice or other document.Unless otherwise agreed between the Parties,the
Release will be issued in the form of a purchase order issued through the Company's procurement system in substantially the
form attached hereto as Exhibit D.
IN THE EVENT THE RELEASE IDENTIFIES THE PROJECT OR WORK AS A MAJOR SUBSTATION,
TRANSMISSION AND DISTRIBUTION PROJECT,THE ADDITIONAL TERMS AND CONDITIONS IN EXHIBIT J
WILL APPLY.
In the event of any Emergency,Company will provide Contractor with a verbal notice to be followed as soon as practicable
thereafter by a Release.
ARTICLE 5.CONSIDERATION
One of the following pricing structures shall apply to Work issued under this Contract and the applicable pricing
structure and payment terms shall be specified in the applicable Release:
a.a unit price basis for the Work performed,
b.an hourly rate basis for the labor and equipment furnished,O c.a firm fixed price basis for the tasks performed,or
d.another mutually agreed upon pricing basis,
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During the Term of the Contract,the rates identified in all of the exhibits referenced below shall be adjusted annually in accordance
with the attached rate schedules during the Term.The rate schedule adjustment shall be made on January 1 of each year of the
Contract.
Specific pricing will be established in accordance with the applicable price schedule or method listed below:
Unit Price based consideration determined in accordance with Exhibits B-1 through B-7as described in the Pricing Schedule
notes associated with each category of units.
Time and Expense based consideration determined in accordance with Exhibit C-1 and C-2.
The rates identified in the above listed Contract Exhibit C-1 shall be,for work performed on a Time and Expense Rate basis,as
detailed in the above listed Contract exhibits,in accordance with the following:
1.The rates identified in Contract Exhibit C-1 shall be applied to the hours worked in accordance with the
provisions established in the applicable Bargaining Unit Agreements for the State and Local where the Work
is performed;and/or in accordance with the prevailing wage rates established for the area where the work is
to be performed.
2.Compensable time at the indicated rates shall commence at the Company designated starting time and at the
Company designated job show-up location with equipment,material and manpower ready to start productive
activity.
3.Subject to pre-authorization by the designated representative,or his designee,in addition to the rates
indicated for manpower and equipment Company shall pay Contractor applicable per diem,mileage,or
subsistence rates as set forth in the collective bargaining agreement or working arrangements applicable to
the Work.
4.Company Customer Guarantees,as set forth in the attached Exhibit M and Exhibit Y and all associated
documentation,including but not limited to Exhibit T,are required to be fulfilled.
The rates identified in the above listed Contract Exhibit C-2 shall be in accordance with the following:
1.The rates for "Equipment Mobilization"shall be a one-time charge per continuous assignment or project,
applicable for Work started at a different Operations Center or Work Site show-up location on the Company
Distribution and Transmission System,and includes all equipment and labor mobilization and demobilization
costs and the initial setup of the equipment at the Company designated location or service area.The
mobilization distances are from Contractor's nearest yard/facilities or the current location of the major
equipment mobilized,whichever is less.
2.The rates listed for "Equipment Rates"apply for both daily transit time from equipment staging/storage
location and actual time on the worksite.
3.Materials:Company will pay Contractor at invoiced amount to Contractor plus the Contractor mark-up
percentage indicated in Exhibit C-1 for Contractor-Furnished Materials incorporated into the work,provided
prior authorization has been given by Company.
4.Subcontract Work:Company will pay Contractor at invoiced amount to Contractor plus the Contractor mark-up
percentage indicated in Exhibit C-1 for that portion of the work,which is subcontracted to others,provided prior
authorization has been given by Company.
5.Equipment and Tool Rental:Company will pay Contractor for use of equipment and tools in performance of the
work at the rates listed in Exhibit C-2,subject to the conditions listed below.
a.Equipment categorization designations are only intended as generic identification,different makes/models
with similar ratings and/or capacities may be used instead of the indicated makes/models.Contractor will
ensure all equipment;tools and communication devices are in safe and proper working condition to support
the required work.
O b.Rates indicated in Exhibit C-2 shall compensate Contractor for Contractor owned or leased equipment.For
any additional equipment furnished by Contractor,which is not owned or leased by Contractor,use of which
has been approved by the Company,Company shall compensate the Contractor at the actual invoice cost to
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Contractor,and the Contractor markup percentage indicated in Exhibit C-2,for such Contractor-furnished
equipment.Contractor shall submit with its invoices to Company documentation to support all Contractor-
furnished equipment costs.
c.Hourly rates shall apply for less than 36 hours use in a week.
d.Weekly rates shall apply for continuous assignments of at least 36 hours in a week.
e.Monthly rates shall apply for work assignments of four weeks or longer.Equipment rates shall include all
costs to fuel and maintain the tools and equipment.
f.No rental charges will be allowed for an item of equipment or a tool having a new cost of $500.00 or less.
g.Except as provided in item "j"below,rental charges will be allowed only when the tool or equipment is
actually being used for the proper and efficient performance ofthe work,including the use of equipment for
transporting other items of equipment during mobilization and demobilization.
h.Rental charges for standby time may be allowed provided prior authorization has been given by Company.
Standby rates shall be as negotiated between Company and Contractor prior to use ofthe tool or equipment.
i.Contractor shall furnish each crew with an adequate stock of tools to perform work hereunder,at
Contractor's expense.A normal stock of tools,to be provided by Contractor,shall include but not be limited
to the items as further detailed on Exhibit I.Company shall be the sole judge as to the adequacy of the tools
provided.When specialty tools are required to perform work hereunder,rental charges for specialty tools
will be allowed provided prior authorization has been given by Company.Rates for specialty tools shall be
as negotiated between Company and Contractor prior to the use of the tools.
j.Contractor shall not charge Company for equipment rental,other than those items listed in Exhibit C-2,O unless specialty equipment is required to perform work hereunder.When specialty equipment is required to
perform work hereunder,rental charges for specialty equipment will be allowed provided prior authorization
has been given by Company.Rates for specialty equipment shall be as negotiated between Company and
Contractor prior to the use of the equipment.
Firm Fixed Price basis as mutually agreed prior to commencement of specific defined Work activities for an established
Release.
For work to be performed on a firm fixed price basis,Company will contact Contractor and request that Contractor submit
a firm fixed price for the work as detailed in the Scope of Work for the specific project.
The Firm Fixed Price agreed to with the Contractor shall be the full consideration due Contractor for the satisfactory
performance of Contractor's obligations under this Contract.No other or additional compensation for labor,material,
equipment,traffic control,or any other expense incurred by Contractor shall be provided.
Company may either accept Contractor's firm fixed price and have the work performed in accordance therewith,or reject
it.If Company accepts,Company will issue a Work Release containing the firm fixed price and indicating that payment
will be made in accordance therewith.
If Company decides not to accept Contractor's firm fixed price,Company may pursue one of the other options outlined in
this Article,or elect not to have the work performed under this Contract.
Other mutually agreed upon pricing basis or such other consideration as may be mutually agreed to and identified in the
applicable Work Release.
ARTICLE 6.PAYMENT
Company will pay the Contractor the consideration set forth in the above referenced exhibits within thirty (30)days
upon receipt of invoice in strict accordance with the applicable pricing structure.
Contractor shall submit to Company monthly or upon project completion a proper invoice for all Work performed and
O
expenses incurred during the preceding calendar month for each Release issued hereunder.Contractor shall itemize each
invoice by applicable Release number.Immediately under each Release number,Contractor shall provide further itemization
by listing the applicable activities performed,hours worked,the District and Circuit number,and
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Contract No.
the specific Unit Price Schedule and Work activity item number and description in the Unit Price Schedule as
identified in the applicable Release,or
the specific rate for time and equipment expenses as show in the Rate Schedule for Time and Equipment Expenses,
the documented hours of Work activity and expense items provided during the billing period as identified in the
applicable Release,
the specific Lump Sum firm fixed price for the defined Work activities established in the applicable Release,or
invoice support documentation as required.
Costs for Work performed under one Release shall not be commingled with the costs for performing Work under any other
Release and receipts,if applicable,must be attached.All undisputed invoice amounts will be paid by Company within thirty
(30)days of receipt of a proper invoice and Company's acceptance of the Work.
All invoices submitted for payment of Work performed in accordance with this Contract shall be submitted either in hardcopy or
electronically as directed by the Company,in the applicable release and shall adhere to the guidelines established in Exhibit F.
For Work performed on a Unit Price basis or on a Time and Expense basis,Contractor shall submit to Company within a thirty
(30)day period followingcompletion of each week in which Work was performed a correct and complete invoice for the value of
the Work performed during the Work week period covered by the invoice.Each invoice submitted shall be in a format
substantially as shown in Exhibit F,and shall also be accompanied by a progress report pursuant to ARTICLE 7,PROGRESS
REPORTING.Weekly invoices shall contain such other supporting documents as required by Company.For any Work
authorized by Company to be performed on a time and expense basis,the supporting documentation shall include,without
limitation,time sheets,purchase orders for materials and similar data.Weekly invoices shall be submitted in original and one (1)
copy to the individual and location identified in the Work release.Upon request by Company,Contractor shall send copies of
invoices topoerherlocationsasdniramtr
fixed price,Contractor shall submit to Company monthly a proper invoice for the value of
the Work performed during the preceding month.Within thirty (30)calendar days of Company's receipt and approval of a
proper invoice,Company will pay all undisputed invoice amounts less retention of five percent (5%).
Payment shall be contingent upon Contractor's satisfactory compliance with all provisions of this Contract.Payments made by
Company shall not be deemed acceptance of Contractor's Work.All invoices submitted for Work accomplished under this
Contract shall include the applicable Release number,shall contain supporting documents and receipts as required by
Company.
INVOICES WHICH DO NOT CONTAIN THE ABOVE INFORMATION,OR ARE NOT
ADDRESSED AS ABOVE,MAY CAUSE PAYMENT DELAY.
Contractor shall identify and clearly set forth on each invoice a discount of not less than two percent (2%)of the total amount of the
invoice for payment of the invoice in not more than ten (10)calendar days from the date of receipt by the Company of the invoice.
For payment beyond ten (10)calendar days following the date of receipt by the Company of an acceptable invoice payment shall be
made in the full amount of the invoice.
For Work undertaken within the scope of this Contract,the fmal payment for an individual Release shall not become due until
Contractor has furnished Company a release from all claims and demands arising out of said Release pursuant to Exhibit E attached
hereto and by this reference incorporated herein.Final payment for an individual Release,including retention,if any,shall be paid
upon receipt and approval of the amount due after receipt of the final invoice for each Release from the Contractor,following
completion of all Work for each individual Release completed by the Contractor,and acceptance thereof by Company and (to the
extent required by Company)each Subcontractor,such lien waivers to be in the form set forth in Exhibit E.
Company may offset any such payment to reflect amounts owing from Contractor to Company or its subsidiaries pursuant to this
Contract or any other agreement between the Parties or otherwise.In addition,Company may withhold all payments otherwise
due Contractor until such time as Contractor has provided the Letter of Credit required by this Contract.
ARTICLE 7.PROGRESS REPORTING
O Contractor shall submit with each weekly invoice a weekly progress report for the applicable service territory containing
copies of the current week time sheets,where applicable for hourly Work,and project status information as required.
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Exhibit No.52 Page 233 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
ARTICLE 8.TAXES
The Consideration to be paid under this Contract,as stated in ARTICLE 6,PAYMENT,includes all taxes of any
nature arising out of the Contractor's performance hereunder including,without limitation,state and local sales and use taxes,
value-added taxes,import duties,payroll taxes,income taxes and other taxes relating to the performance of the Work.
For purposes of the assessment of state and local sales and uses taxes,it is understood and acknowledged by the Parties that for
Work performed in the states of California,Idaho,Utah,and Wyoming,the Contractor is considered to be a "contractor
improving real property",as such term is used under applicable state laws,and will thus be the final consumer of all materials
and tangible personal property purchased in accordance with the Work.Contractor acknowledges that sales and use taxes paid
by Contractor with respect to such purchases will not be separately billed to Company nor reflected on the face of invoices
issued to Company.
It is understood and acknowledged by the Parties that for purposes of Work performed in the state of Washington,sales and use
taxes for the construction,repair or improvement to real property or to property treated for sales and use tax purposes as real
property will be invoiced to Company and reflected as a separate line item on each invoice issued to Company.
Any portion of the Work that does not involve the construction,repair or improvement to real property shall be similarly
included as a separate line item on each invoice issued to Company.
Upon request,Contractor will provide Company with additional information,in a form and format reasonably acceptable to
Company,evidencing the payment of all state and local sales and uses taxes.If requested by Company Contractor shall provide
a completed,notarized,Exhibit AC with the fmal invoice for each Release issued under this Contract.Contractor shall provide a
completed,notarized,Exhibit AC within five (5)working days of Company request for any Release issued under this Contract
regardless of status of the Work.
ARTICLCE9ntraAc
o
hUa
k
pGaANDAUDITcoNmGplete
accounting records in support of any cost-based billings and claims to
Company in accordance with generally accepted accounting principles.Company,or its audit representatives,shall have the
right at any reasonable time or times to examine,audit,and copy the records,vouchers,and other source documents which
relate to any claim for compensation other than pricing elements which are fixed in amount by this Contract.Such documents
shall be available for examination,audit and reproduction for three (3)years after completion or termination of this Contract.
Contractor shall assist Company with preparing necessary audit material and will allow Company to review any work papers
prepared by independent auditors as allowed by professional standards.
Audit findings by Company's representative will be considered to be fmal and conclusive for the period audited unless Contractor
within thirty (30)calendar business days after receipt ofthe audit findings,submits a written protest to Company pursuant to the last
paragraph of ARTICLE 52,CLAIM NOTICE AND RESOLUTION PROCEDURE.Any over collections shall be returned to
Company within thirty (30)calendar days from date of Notice of overcharge.
ARTICLE 10.CREDIT REQUIREMENTS
Contractor shall meet the requirements of either clause (i)or clause (ii)below:(i)Contractor maintains a senior
unsecured debt rating from Standard &Poor's of BBB-or better;or (ii)if Contractor does not maintain a satisfactory debt
rating,Contractor meets ALL of the followingcredit standards:a)tangible net worth ten (10)times the projected maximum
liability of Contractor under this Contract;b)no change in the condition of its earnings,net worth,or working capital over the
last twenty-four (24)months,which would reasonably be anticipated to impair Contractor's ability to meet its obligations
under this Contract;and c)Contractor is not in default under any of its other agreements and is current on all of its financial
obligations.
If requested by Company,Contractor shall within thirty (30)calendar days provide Company with copies of its most recent
annual and quarterly financial statements prepared in accordance with generally accepted accounting principles.
ARTICLE 11.DEFAULT SECURITY
In the event Contractor is unable to satisfy the credit requirements set forth in ARTICLE 10,CREDIT
O REQUIREMENTS at any time during the performance of the Work,or if Contractor experiences a Material Adverse Change at
any time during such performance,then Contractor shall provide Company with security against defaults by Contractor under
this Contract in such form and amount as may be reasonably required by Company ("Default Security"),and pursuant to such
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Exhibit No.52 Page 234 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
additional agreements or instruments as may be reasonably required by Company,including but not limited to letters of credit,
third party guaranties,escrow accounts and bonds.Company may at any time,at its own discretion or pursuant to a request by
Contractor,recalculate the amount of Default Security required pursuant to this Article,in which case Company shall increase
or decrease the existing amount of Default Security,as appropriate.At no time shall the amount of Default Security to which
Company is entitled pursuant to this Article be less than Company's Net Replacement Costs.
The terms of any letter of credit required by Company shall conform to the attached Exhibit G,as well as the requirements of
this Contract and be issued by a bank acceptable to Company.The letter of credit shall provide for payment to Company of the
letter of credit stated amount if Contractor defaults under the terms of this Contract.Company shall have the right to call the
entire amount of the letter of credit if Contractor has not renewed the letter of credit thirty (30)calendar days prior to its
expiration.
Contractor's expenses of complying with additional Default Security obligations as set forth in this Article shall be borne by
Contractor.
ARTICLE 12.WITHHOLDING PAYMENT
Company may,without limiting any other rights or remedies Company may have,withhold from payment amounts
which reflect the reasonable cost to repair or replace non-conforming or defective Work or the value of any claim which
Company has against Contractor under the Contract.Company may also retain from payment sufficient funds to discharge any
delinquent accounts of Contractor for which liens on Company's property have been or can be filed,and Company may at any
time pay therefrom for Contractor's account such amounts as are,in the reasonable opinion of Company,due thereon,
including any sums due under any federal or state law.
ARTICLE 13.PERFORMANCE CRITERIA
Expected performance criteria shall be established by the Company and compared to actual performance on a regularObasis.Targets for expected performance shall be established by the Company for typical Work activities and regularly
communicated to the Contractor or as stated in a particular Scope of Work attached to a specific Release.
Contractor shall report all performance errors to Company using the format and protocol provided by Company.Contractor
will be held accountable for performance errors and shall participate in the investigation of performance errors at its own
expense.Review of performance evaluations shall be a part of the invoice approval process.Payment of invoices will be
subject to meeting the standards set by the Company in the areas of timeliness,conformance to scope,design and standards,
and quality of the finished product.
Contractor shall adhere to Company guarantees outlined in Exhibit M and Exhibit Y and will be charged any credits associated
with non-compliance to any guarantee.Further,Contractor agrees non-compliance results in damage to the Company and
Customer's relationship at a higher cost than the cost of customer credits and Company may impose additional damages and
possible contract termination for habitual or intentional non-compliance.
ARTICLE 14.KEY PERSONNEL
Prior to changing any key personnel,especially those key personnel whom Company has relied upon in making this
Agreement,Contractor shall notify the Company of proposed changes before reassigning key personnel;and any replacement
personnel shall have capabilities comparable to those replaced.If Contractor changes or replaces any of its personnel for
performance of the services hereunder,Contractor shall bear all costs associated with any and all such changes,and said costs
shall not be reimbursable from Company.
Upon request from Company,Contractor shall provide résumés of any potential or replacement supervisors before they are
assigned to the Work.Contractor shall establish telephone numbers at which Company and customers may contact the
supervisors.
Company shall advise Contractor within thirty (30)days of any reassignment involvingkey Company personnel involved in the
operations of its distribution and transmission system.
ARTICLE 15.DESIGNATED REPRESENTATIVE AND NOTICES
In conjunction with each Release,each Party shall designate a representative authorized to act on its respective behalf
and shall advise the other Party in writing of the name,address and telephone number of such designated representative.All
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Witness:Rick A.Vail
Contract No.
communications relating to the day-to-day activities under this Contract shall be exchanged between such designated
representatives through any agreed form of communication.
Any formal Notice required to be delivered in writing under the terms of this Contract shall be delivered to the representative of the
other Party as designated below.All formal written Notices shall be:(i)hand delivered;(ii)deposited in the mail,properly stamped
with the required postage;(iii)sent via registered or certified mail;or (iv)sent via recognized overnight courier service.The Parties'
addresses for purposes of Notice shall be as set forth below:
If to Company:If to Contractor:
PacifiCorp
825 Multnomah Street,Suite 1700
Portland,Oregon 97232
Attn:Tim Adams Attn:
Telephone:[phone] Telephone:
Either Party may change the name or address of the designated recipient of Notices by delivery of a Notice of such change as
provided for in this Article.
ARTICLE 16.QUALITYASSURANCE
The Contractor shall provide and maintain a system of quality assurance which will ensure that all required technical
provisions and professional standards are being adhered to on a consistent basis by the Contractor and its Subcontractors in the
performance of Work under this Contract.The required system of quality assurance shall include but not be limited to:(i)O processes,inspections,and reporting activities needed to properly and competently perform the Work;(ii)all safety,
environmental,health,and security regulations pertaining to the performance of the Work;and (iii)such other requirements as
may be determined to be necessary for the successful performance of all related duties.The scope and content of Contractor's
required quality assurance system shall be reviewed and approved annually by Company.
Contractor shall develop an environmental assurance program ("Environmental Assurance Program")and environmental
assurance plan ("Environmental Assurance Plan")which conforms to the general content requirements of Exhibit Z and also
incorporates the requirements of Exhibit K and Exhibit N.The Environmental Assurance Plan shall be customized to fully
integrate all project-specific environmental requirements and demonstrate a compliance plan for such requirements,as well as
the permit conditions/stipulations included or referenced in the Scope of Work and the conditions/stipulations of any permits to
be secured by Contractor as part of the Work.The Environmental Assurance Plan shall be submitted to Company for review and
comment and Contractor shall address any concerns provided by Company through revisions to the Environmental Assurance
Plan.Contractor shall not proceed with any site clearing,grubbing,excavation,construction or other site work until the
Environmental Assurance Plan has been reviewed by Company and all Company concerns have been addressed to Company's
reasonable satisfaction.
Compliance with this Article in no way relieves Contractor of responsibility to furnish acceptable quality Work or Contractor-
Furnished Materials as specified in this Contract.
ARTICLE 17.INSPECTION AND TESTING
All Work will be subject to inspection and testing at any reasonable time or times by Company,which shall have the
right to reject nonconforming Work.Any inspection and testing performed by Company shall be performed solely for
Company's benefit.Neither inspection and testing of Work nor the lack of same nor acceptance of the Work by Company nor
payment therefore shall relieve Contractor from any of its obligations under this Contract.Contractor shall cooperate with any
inspection and testing performed by Company.
If required for the Work,all equipment installation,testing and commissioning shall be performed in accordance with Exhibit
O.The Contractor shall at all times,adhere to all the provisions described in Exhibit O unless otherwise agreed to in writing.
The equipment specific installation procedures and forms referenced in Exhibit O are listed in the document Sub Equip-
O Comprehensive List of Installation and Testing Documents.The specific breakdown of responsibilities for the various
commissioning tasks are described in the Equipment Commissioning Summary document that is issued for each project.
Contractor agrees to abide by commissioning Personnel qualification requirements as defined in Exhibit O,1.7 in addition to
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Exhibit No.52 Page 236 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
all requirements of this Contract.
ARTICLE 18.CORRECTION OF WORK
Any time prior to final completion of any Work and acceptance by Company,Company may reject Work which fails
to conform to this Contract and the applicable Release.Contractor,at its sole expense,shall:(i)promptly re-perform or replace
or re-execute the Work so as to conform with the requirements of this Contract and the applicable Release;and (ii)remove
from the Work Site all Work and Contractor-Furnished Materials rejected by Company,whether incorporated in the Work or
not.
To the extent that Company incurs additional costs as the result of non-conforming Work,Contractor shall be responsible for
such costs.Additional costs may include,without limitation,additional Company inspection personnel or extended inspection
durations resulting from the nonconforming Work,the costs or any third party testing necessary to confirm the sufficiency of
the non-conforming Work,and the costs or removing and restoring any facilities that must be disturbed to accommodate
corrective actions.
If Contractor fails to promptly remedy rejected Work,Company may,without limiting or waiving any other rights or remedies it
may have,correct the Work and remove and dispose of rejected Contractor-Furnished Materials at the expense of Contractor,and
may deduct from amounts due Contractor any cost so incurred by Company.
ARTICLE 19.CHANGES
Company may at any time in writing direct additions,deletions or modifications to the Work set forth this Contract
and any Release issued hereunder.If any such direction results in a material change in the amount or character of the Work,an
equitable adjustment in the price and/or other such provisions as may be affected shall be made and this Contract or the
applicable Release shall be modified in writing accordingly.Any claim by Contractor for an adjustment under this Article shall
be processed in accordance with the provisions of ARTICLE 52,CLAIM NOTICE AND RESOLUTION PROCEDURE.
If possible,equitable adjustments to pricing shall be made in accordance with fixed price or unit price change orders as the Parties
may agree.Company may direct the Contractor to proceed with a change in Work pending negotiation of the fixed price or unit
prices change order rates by completing the unilateral directive portion ofthe Change Order Form.After issuance ofthe directive,
and provided that Company and Contractor are unable to agree upon a negotiated fixed price or unit price adjustment to the
pricing,Contractor shall be compensated in accordance with the time and expense rates set forth in Exhibit C.
No change shall be binding upon Company until a change order is executed by an authorized representative of Company which
EXPRESSLY STATES THAT IT CONSTITUTES A CHANGE ORDER TO THIS CONTRACT.THE ISSUANCE OF INFORMATION,ADVICE,
APPROVALS,OR INSTRUCTIONS BY ANYONE OTHER THAN THE AUTHORIZED COMPANY REPRESENTATIVE SHALL NOT CONSTITUTE AN
AUTHORIZED CHANGE ORDER PURSUANT TO THIS ARTICLE.A CHANGE ORDER SHALL ONLY MODIFYTHE RELEASE PURSUANT TO
WHICH IT IS ISSUED AND CHANGES TO THE MASTER TERMS AND CONDITIONS OF THIS CONTRACT REQUIRETHE EXECUTIONOF
CONTRACT AMENDMENTBETWEEN THE PARTIES.
ARTICLE 20.WARRANTY
Contractor warrants that:(i)all Work performed shall conform to the Scope of Work,drawings,specifications,
samples,industry standards and other descriptions or requirements set forth or incorporated by reference into the applicable
Release and/or this Contract;(ii)all Work shall be free of defects in workmanship;and (iii)any Deliverables shall be free from
defects;and (iv)Contractor-Furnished Materials shall be of the quality specified,or of the best grade if no quality is specified,
and,unless otherwise provided in this Contract,will be new and free from defects in design.
At any time for a period of one (1)year from the date of final completion of the Work and acceptance by Company,Contractor shall
at its own expense promptly repair,replace and/or re-perform any portion of the Work that is defective or in any way fails to
conform to the Contract requirements.Contractor shall be responsible for all costs necessary to repair,replace and/or re-perform the
non-conforming Work including all material,labor and transportation costs,and further including the costs necessary to obtain
access to the non-conforming materials or equipment and any resulting damage to surrounding Work and/or adjacent property,
equipment and facilities.If Contractor fails to promptly make any repair,replacement or re-performance as required herein,
Company may conduct the necessary Work at Contractor's expense.Contractor cannot void the warranty for repair,replacement or
re-performance performed under these circumstances.Provided that such repair,replacement or re-performance is conducted in a
O reasonable manner and with workmanship and care consistent with industry standards,Contractor shall reimburse Company for
the cost of any warranty repair,replacement or re-performance self-performed by Company.
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Exhibit No.52 Page 237 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
If any Work,Contractor-Furnished Materials or Deliverables fail to meet the foregoing warranties,Company shall have the right
to self-perform Emergency warranty work as Company deems necessary.Company agrees to notify Contractor of such
Emergency work within forty-eight (48)hours.Contractor cannot void the warranty for any repairs,replacement or re-performance
performed under these Emergency circumstances.Provided that the Emergency repairs,replacement or re-performance is
performed in a reasonable manner and with workmanship and care measured by industry standards,Contractor shall reimburse
Company for the cost of any Emergency warranty work self-performed by Company.
Any repair,replacement or re-performance will meet the requirements of this Contract for a period of one (1)additional year
following Company's acceptance of such repair,replacement or re-performance.
The foregoing warranties are not intended as a limitation,but are in addition to all other express warranties set forth in this
Contract and such other warranties as are implied by law,custom,and usage of trade.
ARTICLE 21.INSURANCE
Without limiting any liabilities or any other obligations of Contractor,Contractor shall,prior to commencing Work,
secure and continuously carry with insurers having an A.M.Best Insurance Reports rating of A-:VII or better such insurance as
will protect Contractor from liability and claims for injuries and damages which may arise out of or result from Contractor's
operations under the Contract and for which Contractor may be legally liable,whether such operations are by Contractor or a
Subcontractor or by anyone directly or indirectly employed by any of them,or by anyone for whose acts any of them may be
liable.Contractor shall insure the risks associated with the Work and this Contract with minimum coverages and limits as set
forth below:
Workers'Compensation.Contractor shall comply with all applicable Workers'Compensation Laws and shall furnish
proofthereof satisfactory to Company prior to commencing Work.If Work is to be performed in Washington or
Wyoming,Contractor will participate in the appropriate state fund(s)to cover all eligible employees and provide a stop
O gap (employer's liability)endorsement.Coverage should also comply with applicable federal regulations (including,
without limitation,FELA,USL&H and the Jones Act).
Employers'Liability.Contractor shall maintain employers'liability insurance with a minimum single limit of
$$1,000,000 each accident,$1,000,000 disease each employee,and $1,000,000 disease policy limit.
Commercial General Liability.Contractor shall maintain commercial general liability insurance on the most recently
approved ISO policy form,or its equivalent,written on an occurrence basis,with limits not less than $1,000,000 per
occurrence/$2,000,000 general aggregate (on a per location and/or per job basis)and shall include the following
coverages:
a.Premises and operations coverage
b.Independent contractor's coverage
c.Contractual liability
d.Products and completed operations coverage,maintained for at least 2 years for post-completion losses
e.Coverage for explosion,collapse,and underground property damage
f.Broad form property damage liability
g.Personal and advertising injury liability,with the contractual exclusion removed
h.Sudden and accidental pollution liability,as applicable
Business Automobile Liability.Contractor shall maintain business automobile liability insurance on the most recently
approved ISO policy form,or its equivalent,with a minimum single limit of $1,000,000 each accident for bodily injury
and property damage including sudden and accidental pollution liability,with respect to Contractor's vehicles whether
owned,hired or non-owned,assigned to or used in the performance of the Work.If applicable,the automobile liability
policy will include pollution liability coverage equivalent to that provided under the ISO Pollution Liability Broadened
Coverage for Covered Autos endorsement (CA9948)and Motor Carrier Act endorsement (MCS90)shall be attached.
Umbrella or Excess Liability.Contractor shall maintain umbrella or excess liability insurance with a minimum limit of
$5,000,000 each occurrence/aggregate where applicable on a following form basis to be excess of the insurance
coverage and limits required in employers'liability insurance,commercial general liability insurance and business
O automobile liability insurance above.Contractor shall provide Notice to Company,if at any time the full umbrella
limit required under this Contract is not available,and will purchase additional limits,if requested by Company.
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Exhibit No.52 Page 238 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
Transit and Installation.If required or specified in the applicable Release,Contractor shall maintain transit and
installation insurance covering all worldwide air,land and water shipments,and installation of plant,equipment,
machinery,components,supplies and materials,and shall include loading and unloading if Work is to be conducted
by Contractor or any Subcontractor,and offsite storage,if applicable.Coverage shall attach at Contractor's point of
shipment and continue until installed,constructed or rigged by Contractor or its Subcontractors in conjunction with
this Work.Transit insurance shall be provided on an all risk basis to include direct physical loss or damage,including
but not limited to loss caused by war,terrorism,strike,riot and civil commotion,and fabrication/repairs.Losses
resulting from damage during transit shall be provided to cover full replacement cost of the plant,equipment,
machinery,components,supplies and materials being shipped and provide valuation of not less than CIF plus 10%.
Installation insurance shall be provided on an all risk basis with normal and customary exclusions and will include
coverage for mechanical breakdown,testing and commissioning and resulting damage to the Work from faulty design,
workmanship and materials on a full replacement cost basis of this property while located at any one location at any
one time,and shall protect against (i)loss of Company's personal property while such property is in the care,custody
or control of Contractor or its Subcontractors,and (ii)damage to the particular portion of Company's real property on
which Contractor or any Subcontractors are performing the Work if the property damage arises out of the performance
of Work.
Deductibles shall not be greater than $100,000 for any loss.Contractor shall have obtained such transit or installation
coverage on or prior to the date on which the exposure to the risk arises.Company will be named loss payee or
additional named insured for its interest in the covered property.
Company does not represent that the insurance coverages specified herein (whether in scope of coverage or amounts of
coverage)are adequate to protect the obligations of Contractor,and Contractor shall be solely responsible for any deficiencies
thereof.
O Except for workers'compensation,the policies required herein shall include provisions or endorsements naming Company,its
parent,divisions,affiliates,subsidiary companies,co-lessees,co-venturers,officers,directors,agents,employees,servants and
insurers as additional insureds or loss payees,as applicable to specific insurance coverage.The commercial general liability
additional insured endorsement shall be ISO Form CG 20 10 and ISO Form CG 20 37,or their equivalents.
To the extent of Contractor's negligent acts or omissions,all policies required by this Contract shall include:(i)provisions that
such insurance is primary insurance with respect to the interests of Company and that any other insurance maintained by
Company (including self-insurance)is excess and not contributory insurance with the insurance required hereunder;(ii)
provisions that the policy contain a cross liability or severability of interest clause or endorsement in the commercial general
liability and automobile liability coverage;and (iii)provisions that such policies not be canceled or their limits of liability
reduced without:(a)ten (10)calendar days prior written Notice to Company if canceled for nonpayment of premium;or (b)
thirty (30)calendar days prior written Notice to Company if canceled for any other reason.Unless prohibited by applicable
law,all required insurance policies shall contain provisions that the insurer will have no right of recovery or subrogation
against Company,its parent,divisions,affiliates,subsidiary companies,co-lessees or co-venturers,agents,directors,officers,
employees,servants,and insurers,it being the intention of the Parties that the insurance as effected shall protect all of the
above-referenced entities evidenced by waiver of subrogation wording.
A certificate of insurance shall be furnished to Company through ISNetworld confirming the issuance of such insurance prior
to commencement of Work by Contractor.Should a loss arise during the Term of the Contract that may give rise to a claim
against Contractor and/or Company as an additional insured,Contractor shall deliver to Company (or cause to be delivered to
Company)certified copies of such insurance policies.Contractor shall not cancel or reduce limits of liability without (i)ten
(10)calendar days prior written Notice to Company if canceled for nonpayment of premium;or (ii)thirty (30)calendar days
prior written Notice to Company if canceled for any other reason.Lack of notification shall be considered a material breach of
this Contract.
Contractor shall require Subcontractors who perform Work at the Work Site to carry liability insurance (auto,commercial
general liability and excess)and workers'compensation/employer's liability insurance commensurate with their respective
scopes of work.Contractor shall remain responsible for any claims,lawsuits,losses and expenses included defense costs that
exceed any of its Subcontractors'insurance limits or for uninsured claims or losses.
O
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Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
ARTICLE 22.INDEMNIFICATION
Contractor specifically and expressly agrees to indemnify,defend,and hold harmless Company and its officers,
directors,employees and agents (hereinafter collectively "Indemnitees")against and from any and all claims,demands,suits,
losses,costs and damages,including attorneys'fees and/or litigation expenses,brought or made against or incurred by any of
the Indemnitees arising out of death or bodily injury to persons or damage to property to the extent that the death or bodily
injury to persons or damage to property arises out of the fault of Contractor or the fault of Contractor's agents,representatives
or Subcontractors of any tier,their employees,agents or representatives in the performance or nonperformance of Contractor's
obligations under this Contract or in any way related to this Contract.The indemnity obligations under this Article shall include
without limitation:
a.Loss of or damage to any property of Company,Contractor or any third party;
b.Bodily injury to,or death of any person(s),including without limitation employees of Company,or of Contractor or its
Subcontractors of any tier;and
c.Claims arising out of workers'compensation,unemployment compensation,or similar such laws or obligations applicable
to employees of Contractor or its Subcontractors of any tier.
Contractor's indemnity obligations owing to Indemnitees under this Article are not limited by any applicable insurance coverage
identified in ARTICLE 21,INSURANCE.Contractor's indemnity obligation under this Article shall not extend to any liability
caused by the negligence of any of the Indemnitees.
For Work performed in the States of Oregon and Washington,and to the limited extent that this Contract requires Contractor to
perform Work meeting the statutory definition of "construction"in either of the above-referenced states,Contractor's
indemnity obligations under this Article shall extend only to liability for damage arising out of death or bodily injury to persons
or damage to property to the extent that the death or bodily injury to persons or damage to property arises out of the fault of
Contractor,or the fault of Contractor's agents,representatives or Subcontractors.
To the extent applicable,Contractor specifically and expressly waives any immunity under either Industrial Insurance,Title 51,
RCW,or Workers'Compensation Law,Chapter 656,ORS,and acknowledges that this waiver was mutually negotiated by the
Parties herein.
The invalidity,in whole or in part,of any of the foregoing paragraphs will not affect the remainder of such paragraph or any
other paragraphs in this Article.
ARTICLE 23.ACCESS TO COMPANY'S FACILITIES
23.1 Requirements for Unescorted Personnel and Sensitive Personnel
Access to Company controlled areas is granted on an as-needed basis only in accordance with Company's internal badge
and access policy.Additionally,Company is required to comply with certain of NERC's federally mandated Critical
Infrastructure Protection Standards (CIPS)adopted to ensure that electric utilities,as part of the nation's critical infrastructure,are
able to sustain and secure against vulnerabilities that may threaten the bulk electric system and the utilities that operate it.
Company shall specify in the Release or Scope of Work whether or not the Work under this Contract requires either:(i)
authorized unescorted physical access to Company's Facilities (i.e.,use of Unescorted Personnel);or (ii)authorized unescorted
physical access or authorized cyber access to Company's CIPS Covered Assets (i.e.,use of Sensitive Personnel).For all
Personnel who require either such access,Contractor shall:
a.Conduct,at Contractor's cost and expense,a Personnel risk assessment to include at a minimum an identity verification
and seven-year criminal background check for the current residence and past locations of residence of all Unescorted
Personnel and Sensitive Personnel.All background checks will be conducted in accordance with federal,state,provincial
and local laws,and subject to existing collective bargaining unit agreements or other agreements,if any.A background
check completed within two (2)years prior to the date the Contractor signed a Contractor/Vendor Information Form for
each such person will be considered valid.Following the initial background check,updates shall be performed no less
frequently than every seven (7)years or upon request by Company.In the event Company notifies Contractor of
impending expiration of the background check of any Unescorted Personnel or Sensitive Personnel,Contractor shall
provide an updated Contractor/Vendor Information Form reflecting a refreshed background check within twenty (20)daysOofreceiptoftheNoticeinordertoavoidrevocationofsuchperson's access.An appropriate authorization form must be
signed by each of the Unescorted Personnel and Sensitive Personnel prior to a background check being conducted,
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Exhibit No.52 Page 240 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
acknowledging that the background check is being conducted and authorizing the information obtained to be provided to
Company;
b.Ensure that Unescorted Personnel and Sensitive Personnel have passed the background checks outlined in subsection
23.1(a)prior to requesting unescorted physical access and/or cyber access to Company's Facilities and/or CIPS Covered
Assets,as applicable.In the event any such person:(i)is currently under indictment for a crime punishable by
imprisonment for a term exceeding one year;(ii)has been convicted (within the past seven years)in any court of a crime
punishable by imprisonment for a term exceeding one year;(iii)is currently a fugitive ofjustice;or (iv)is an alien illegally
or unlawfully in the United States,such person shall be considered a "restricted person"and may not be Unescorted
Personnel or Sensitive Personnel without prior written consent from Company.In the event any such person's background
check reveals any residency gap of six (6)consecutive months or more,Contractor shall review,evaluate,and document
any such residency gap to ensure that it does not pose a risk to Company's CIPS Covered Assets,prior to making a
determination that Unescorted Personnel and Sensitive Personnel have passed the background check;
c.Ensure that Unescorted Personnel and Sensitive Personnel complete Company provided or approved initial CIPS and
Standards of Conduct compliance training prior to requesting unescorted physical access and/or cyber access to
Company's Facilities and/or CIPS Covered Assets,as applicable;
d.Ensure that Unescorted Personnel and Sensitive Personnel have passed Contractor's drug and alcohol exam and are in
compliance with Contractor's substance abuse/drug and alcohol policy as outlined in ARTICLE 24,SUBSTANCE
ABUSE;DRUG AND ALCOHOL POLICY;and
e.Keep accurate and detailed documentation to confirm completion dates for background checks and all CIPS and
Standards of Conduct compliance training (initial and annual training,to the extent applicable),and certify to Company
such documentation by completing a Contractor/Vendor Information Form,attached as Exhibit R,hereto,for each
Unescorted Personnel or Sensitive Personnel.Company has the right to audit Contractor's records supporting eachOContractor/Vendor Information Form submitted to Company and to verifythat the requisite background checks and CIPS
and Standards of Conduct compliance training were performed.Contractor shall provide Company with all requested
records supporting Contractor/Vendor Information forms within a reasonable time after receiving such a request,and in
the form requested by Company,but not longer than three (3)business days following the date of such request.
Contractor shall not allow any Unescorted Personnel or Sensitive Personnel who have not met the foregoing requirements of
this subsection 23.1 to perform Work,unless Contractor has received prior written consent from Company.
23.2 Additional Access Requirements Specific to Sensitive Personnel
In addition to the access requirements outlined in subsection 23.1,with respect to all Sensitive Personnel,Contractor also shall:
a.Ensure that Sensitive Personnel (and any Personnel with access to BCSI)are informed of and comply with Company's
BCSI requirements contained in any confidentiality agreement previously executed by Contractor as well as the BCSI
requirements set forth herein in ARTICLE 67,CONFIDENTIAL INFORMATION;NONDISCLOSURE;
b.In addition to the initial CIPS and Standards of Conduct compliance training requirement outlined in subsection
23.l(c),ensure that Sensitive Personnel complete annual Company provided or approved CIPS compliance training
within Company's prescribed training window;and
c.Immediately upon either (i)Sensitive Personnel termination actions or (ii)all other changes in the status of Sensitive
Personnel who no longer require access,report such termination or change in status to the Company's Enterprise
Service Desk (ESD).The ESD is available 24 hours a day by calling either [phone] or [phone].
Contractor shall not allow any Sensitive Personnel who have not met the foregoing requirements of this subsection 23.2 to
perform Work,unless Contractor has received prior written consent from Company.
ARTICLE 24.SUBSTANCE ABUSE;DRUG AND ALCOHOL POLICY
a.Contractor shall have in place and ensure that all Personnel comply with a substance abuse and drug and alcohol
policy that meets or exceeds the requirements of all applicable federal,state and/or local statutes and regulations.
Contractor shall subject each of the Personnel to a drug test at Contractor's sole cost and expense.Such drug test
O shall,at a minimum,be a nine (9)Panel Drug Test,which should be recognizable at testing labs as a "SamHSA9
panel at 50NG -THC cut-off."
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Rocky Mountain Power
Exhibit No.52 Page 241 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
b.For any Personnel who have had a recent drug test,such recent drug test shall be documented pursuant to the
previous paragraph.Contractor warrants that Contractor and the Personnel are in compliance with Contractor's
substance abuse and drug and alcohol policy.
c.During the course of Work performed under this Contract,Contractor shall keep accurate and detailed documentation
of its drug policy and Personnel drug tests,which it shall submit to Company upon request.
d.Contractor shall designate one (1)person to be responsible for compliance with the requirements of this Article and all
reporting and inquiries shall be made to a duly authorized representative of Company in a timely manner.
ARTICLE 25.CONTRACTOR'S PERSONNEL;DRUGS,ALCOHOL AND FIREARMS
Contractor shall employ in the performance of the Work only persons qualified for the same.Contractor shall at all
times enforce strict discipline and good order among its employees and the employees of any Subcontractor of any tier.
Contractor shall not permit or allow the introduction or use of any firearms,illegal drugs or intoxicating liquor upon the Work
under this Contract,or upon any of the grounds occupied,controlled,or used by Contractor in the performance of the Work.
Contractor shall immediately remove from the Work,whenever requested by Company,any person considered by Company to
be incompetent,insubordinate,careless,disorderly,in violation of the above restriction on firearms,illegal drugs or
intoxicating liquor,or under the influence of illegal drugs or intoxicating liquor,and such person shall not again be employed
in the performance of the Work herein without the consent of Company.
ARTICLE 26.DEPARTMENT OF TRANSPORTATION
Contractor shall ensure Department of Transportation compliance including,but not limited to,valid driver's license,
equipment inspections,hours of service and all appropriate documentation for any Personnel who may drive in the
performance of Contractor's obligations under this Contract.Company may,at its discretion,check Personnel at the Work for aAadriLver's7licUsS
NESS ETHICS
Contractor,its employees,officers,agents,representatives and Subcontractors shall at all times maintain the highest
ethical standards and avoid conflicts of interest in the performance of Contractor's obligations under this Contract.In
conjunction with its performance of the Work,Contractor and its employees,officers,agents and representatives shall comply
with,and cause its Subcontractors and their respective employees,officers,agents and representatives to comply with,all
applicable laws,statutes,regulations and other requirements prohibiting bribery,corruption,kick-backs or similar unethical
practices including,without limitation,the United States Foreign Corrupt Practices Act,the United Kingdom Bribery Act 2010,
and the Company Code of Business Conduct.Without limiting the generality of the foregoing,Contractor specifically
represents and warrants that neither Contractor nor any Subcontractor employees,officers,representatives or other agents of
Contractor have made or will make any payment,or have given or will give anything of value,in either case to any government
official (including any officeror employee of any governmental authority)to influence his,her,or its decision or to gain any
other advantage for Company or Contractor in connection with the Work to be performed hereunder.Contractor shall maintain
and cause to be maintained effective accounting procedures and internal controls necessary to record all expenditures in
connection with this Contract and to verify Contractor's compliance with this Article.Company shall be permitted to audit
such records as reasonably necessary to confirm Contractor's compliance with this Article.Contractor shall immediately
provide Notice to Company of any facts,circumstances or allegations that constitute or might constitute a breach of this Article
and shall cooperate with Company's subsequent investigation of such matters.Contractor shall indemnify and hold Company
harmless from all fines,penalties,expenses or other losses sustained by Company as a result of Contractor's breach of this
provision.The Parties specifically acknowledge that Contractor's failure to comply with the requirements of this Article shall
constitute a condition of default under this Contract.
ARTICLE 28.RISK OF LOSS
Contractor assumes risk of loss and full responsibility for the cost of replacing any Contractor-Furnished Materials
and Company-Furnished Materials (including any insurance deductibles and uninsured losses)while under the care,custody
and control of Contractor.This provision shall apply regardless of whether Company holds legal title to such materials.This
provision shall not apply to the extent such loss or damage is a result of the negligence or intentional misconduct of Company
or Company's agents.
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Rocky Mountain Power
Exhibit No.52 Page 242 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
ARTICLE 29.LABOR
Contractor shall be aware of,and familiar with,all collective bargaining agreements,where applicable,which do or
may pertain to or affect the Work under this Contract or other work at the Work Site.Contractor shall plan and conduct its
operations so that its employees and Subcontractors of any tier will work harmoniously with Company employees and other
workers employed on the same or related projects to ensure that there will be no delays,work stoppages,excessive labor costs,
or other labor difficulties.
ARTICLE 30.CONTRACTOR-FURNISHEDMATERIALS
Contractor shall provide Company for its approval the names of the manufacturer(s)of all Contractor-Furnished
Materials which Contractor contemplates incorporating in the Work,together with their performance capacities and other
pertinent information upon request.Where Contractor-Furnished Materials are referred to in the Scope of Work or General
PacifiCorp Work Requirements as "equal to"any particular standard,Company shall decide the question of equality.
Contractor-Furnished Materials installed or used without Company's approval shall be at the risk of subsequent rejection.
Samples of Contractor-Furnished Materials shall be submitted for approval when so directed.
ARTICLE 3L COMPANY-FURNISHED MATERIALS
Contractor shall be required to accept delivery of Company-Furnished Materials as described in the Scope of Work and
to deliver them to the Work Site.
Contractor shall be required to execute a receipt for all items received from Company.Execution of a receipt without reservation
incorporated therein shall bar a subsequent claim by Contractor that materials were received from Company in a damaged
condition.Upon receipt by Contractor of Company-Furnished Materials,Contractor shall become solely responsible for their care
and protection.In the event any materials are damaged,lost,stolen or destroyed,by reason of any cause,whether within or
beyond the control of Contractor,the materials shall be repaired or replaced entirely and solely at Contractor's expense.TheOmaterialsrequiredtobereplacedmaybefurnishedbyCompanyatitssoleoption.Contractor will be charged the amount the
materials cost Company at place of delivery to Contractor.Contractor shall return to Company's facility all unused Company-
Furnished Materials,along with a complete inventory of all materials returned.All returned materials shall be boxed or bundled in
a manner acceptable to Company and neatly stacked in the facility as directed by Company.
Contractor shall notify Company forty-eight (48)hours prior to arriving at Company's facility before taking delivery of
Company-Furnished Materials.
The Company project manager or other on-site Company project supervisory personnel (hereinafter,Company Supervisor)may
require identification of persons entering or leaving Company sites or project sites.Company may also require searches of
vehicles entering or leaving its sites or project sites.Company-owned project materials may only be removed from project sites
with prior express written approval from the Company Supervisor.
Contractor shall each day provide the Company Supervisor the number of Personnel working on the project and when,where,and
what work will occur.
ARTICLE 32.TEMPORARY CONSTRUCTION FACILITIES AND UTILITIES
Except as otherwise specifically provided in a Release,Contractor shall be required to provide,at its expense,all
temporary facilities and utilities that may be necessary for the performance of the Work under this Contract.This includes
temporary storage or office space as Contractor may require.The installation and maintenance of all temporary facilities and
utilities shall be subject to the approval of Company,and unless authorized in writing by Company,all such facilities shall be
removed from the Work Site at the completion of the Work.In the event Contractor provides space suitable for office or
storage,a portion of such space if requested shall be made available for Company's representative.
ARTICLE 33.REVIEW OF DELIVERABLES
Review by Company of any Deliverables submitted by Contractor is only to determine the general conformance with
the design concepts and shall not relieve Contractor of its responsibility to comply with all requirements of the Contract and for
the accuracy of the Deliverables or the materials fabricated from such Deliverables.
O The Contractor shall maintain at the Work Site,a copy of the drawings and specifications kept current with all changes and
modifications,shall at all times give Company access and shall deliver a copy to Company upon request or upon termination or
completion of the Work.
LSA 8/4/2017 Page 17 of 34
Rocky Mountain Power
Exhibit No.52 Page 243 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
Anything mentioned in the specifications and not shown on the drawings,or shown on the drawings and not mentioned in the
specifications,shall be considered as if shown or mentioned in both.In case of a difference between drawings and specifications,
a discrepancy in figures or any other discrepancy or conflict in Contract documents,the matter shall be promptly submitted to
Company,which shall promptly issue a determination in writing.Any interpretation by Contractor without this determination
shall be at Contractor's own risk and expense.
ARTICLE 34.ALLOCATION
Notwithstanding any other provision of this Contract,in the event of a partial or total failure of Contractor's sources
of supply,including but not limited to failures arising from or related to storms,natural disasters or other occurrences that
require emergency restoration of Company's services anywhere in Company's service area,Contractor will first meet all of
Company's requirements hereunder prior to any allocation among other customers.In such event,the requirements of the
Company shall be the first priority of Contractor.Contractor shall utilize all available resources of manpower and equipment at its
disposal in order to meet Company's requirements hereunder in order to assist with such restoration,and shall not divert any of its
available resources to other work until such services have been fully and completely restored,as determined by Company in its
sole discretion,or until otherwise directed by Company.
ARTICLE 35.SITE REGULATIONS
Contractor,while performing Work at the Work Site,shall make itself aware of and adhere to Company Work Site
regulations,if any,including without limitation environmental protection,loss control,dust control,safety,and security
including,but not limited to,the provisions outlined in Exhibit K (including incident reporting and violation reporting forms
contained therein).
ARTICLE 36.HEALTH,SAFETY AND ENVIRONMENTAL:INCIDENT,ACCIDENT AND DAMAGE
PREVENTION
O Contractor shall be solely responsible for being aware of and initiating,maintaining and supervising compliance with
Exhibit K and with all health,safety and environmental laws,regulations,precautions,and programs in connection with the
performance of the Contract.Prior to the start of any Work required by this Contract,Contractor shall ensure that each of its
own employees,together with all employees of its Subcontractors of any tier,are fully informed concerning all health,safety,
environmental and security regulations pertaining to their Work.Any project specific environmental requirements,beyond
those stated herein under the terms of this Contract and associated exhibits,will be identified and detailed in the project scope
and bid package and applicable Release.In the event any requirements are omitted,it does not relieve the contractor from
complying with applicable environmental laws and regulations.
Contractor shall conduct all Work in such a manner as to avoid the risk of bodily harm to persons including the public or risk
of damage to any property and the environment.
Contractor shall maintain an accurate record of and shall promptly report to Company all cases of property damage in excess of
$100 and of death,environmental breaches,occupational diseases,or injury to employees or any other third parties and
incident to performance of Work under this Contract.Contractor shall promptly notify Company and provide a copy of any
citation issued by any governmental entity.
Contractor and its Subcontractors shall maintain accurate and current safety and environmental records consistent with industry
practice during the performance of Work under this Contract.Contractor and its Subcontractors shall immediately,and in no
event more than twenty-four (24)hours,report to Company all cases of death or injury to Contractor or Subcontractor
employees or any other third parties during or related to the performance of Work under this Contract.Contractor shall provide
such notice to the Company project manager and PacifiCorp Grid Operations (800-732-8728),which notification shall include,
but is not limited to,notice of all vehicle accidents,electrical contacts,electrical flashes,OSHA recordable incidents and
environmental incidents.Within forty-eight (48)hours of any safety incident reported to Company,Contractor shall provide
Company project manager with a preliminary accident investigation report detailing the facts of the incident,any known root
cause,and action steps being taken by Contractor to further investigate the incident and mitigate future occurrences.
In the event Contractor fails to promptly correct any violation of health,safety or environmental regulations,Company may
suspend all or any part of the Work.Contractor shall not be entitled to any extension of time or reimbursement for costs caused
by any such suspension order.Failure of Company to order discontinuance of any or all of Contractor's operations shall not
relieve Contractor of its responsibility for the safety of personnel and property.
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Rocky Mountain Power
Exhibit No.52 Page 244 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
Contractor shall perform regular safety training sessions on not less than an annual basis for all personnel involved in the
performance of Work covered by this Contract.Personnel who have not successfully completed the required annual safety
training shall not be employed in the performance of Work covered by this Contract.
As a condition to the continued receipt of Releases under this Contract,Contractor must maintain its subscription with
Company's third-party safety and loss information reporting service.
ARTICLE 37.HAZARDOUS MATERIALS
Contractor shall comply with,and cause all Subcontractors to comply with,all applicable statutes,laws,rules,
regulations,codes,ordinances,decrees,writs,orders or similar requirements concerning Hazardous Materials.Without
limiting the generality of the foregoing provision,Contractor shall comply with the followingsections of Company's hazard
communication program:
a.Safety Data Sheets ("SDS")for all Hazardous Materials that Contractor or its Subcontractors plan to bring to the
Work Site shall be made readily available for review by Company's manager,applicable safety coordinator or
industrial hygienist.Contractor or its Subcontractors shall notify Company of potential exposure to Hazardous
Materials to be used by Contractor or its Subcontractors if Company employees are present at the Work Site.
b.Contractor shall furnish SDS and appropriate labels with all Hazardous Materials brought to the Work Site.All
Hazardous Materials will be contained so as to meet applicable legal requirements.
c.Contractor will cause all of its employees,and the employees of its Subcontractors,to review the SDS of Hazardous
Materials and to follow the requirements of the OSHA Hazard Communication Standard.
Contractor is responsible for all applicable training and adherence to the OSHA Hazard Communication Standard and SARA
Title III,Emergency Planning and Community Right-to-know Act (EPCRA)rules by their Personnel.
O Contractor shall be solely responsible for all losses arising from Hazardous Materials brought to the Work Site by Contractor
or its Subcontractors during the performance of the Work,including the storage,transportation,processing and disposal of
Hazardous Materials.Contractor shall be solely responsible for all losses related to the Hazardous Materials brought to the
Work Site by Contractor or its Subcontractors including,without limitation:(i)the remediation of any environmental condition
caused by such Hazardous Materials,and (ii)any fines or penalties imposed by any governmental authority having or asserting
jurisdiction with respect to the Hazardous Materials or Work.Contractor shall be solely responsible for the removal of all
Hazardous Materials rough to the Work Site by Contractor or its Subcontractors.
ARTICLE 38.PROTECTION OF EXISTING FACILITIES
Contractor shall protect existing equipment and facilities,and avoid interference with Company's operations.
Contractor shall not remove or alter any part of the existing structures,equipment or facilities without the prior knowledge and
consent of Company.
In the event that it becomes necessary to interrupt or impose abnormal operating conditions upon any of the systems,notification
must be submitted by Contractor well in advance of the time scheduled and a complete agreement must be reached with Company
as to the defmite date,time of day,length of time required,and specific details of the interruption.
ARTICLE 39.PRESERVATION OF PUBLIC/PRIVATE ACCESS
Contractor shall not damage,close,or obstruct any highway,road,or other public or private easement,except to the
extent allowed by permits.If such facilities are closed,obstructed,damaged,or made unsafe by Contractor,Contractor shall,at
its sole expense,make such repair as necessary and shall also provide such temporary guards,lights,and other signals as
necessary or required for safety or as reasonably requested by Company.Contractor shall comply with all traffic control best
practices and laws.
ARTICLE 40.DISTRIBUTION AND TRANSMISSION FACILITIES ACCESS
Access to the distribution and transmission facilities wherever possible will be from intersecting or adjacent public streets
and roads.In the event access to Company right-of-way requires access across private property,such access shall be arranged and
documented by the Contractor with the property owner in advance of accessing the right-of-way.Permission from the property
O owner to traverse private property shall be documented,and such documentation shall be retained by the Contractor.Contractor
shall be solely responsible for the use and occupancy of any private lands crossed or otherwise occupied by it in securing
additional access to the Company right-of-way across private property from public streets or roads.
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Rocky Mountain Power
Exhibit No.52 Page 245 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
The easement or right-of-way for the distribution and transmission system facilities may cross grazing lands or cultivated areas,
and Contractor shall take all necessary precautions to prevent damage to such lands and areas.Gates shall be kept at all times in
the position encountered except when required to be opened for the immediate passage of personnel and equipment.A closed gate
shall be kept in the closed position,and an open gate shall be kept in the open position.The position of the gate shall be
documented and such documentation shall be retained by the Contractor.Contractor shall confine traffic to roads and lanes as
may exist on the easement or right-of-wayand shall maintain any such roads as are used by it and leave them in good condition on
completion oftheWork.
ARTICLE 41.SURVEYING
Contractor is responsible for performing all construction layout surveying required for execution of the Work.
Contractor shall be held responsible for preserving all established project control monuments unless their removal is requested by
Contractor and authorized in writing by Company.Any costs incurred by Company to reestablish control monuments destroyed
by Contractor will be for Contractor's account.
ARTICLE 42.PROGRESS MEETINGS
Company will conduct meetings at regular intervals agreed by the Parties,with Contractor to inspect facilities and
discuss any unusual conditions or critical items which have affected or could affect the Work.
In addition,a joint Company and Contractor business process and performance review team will be established within thirty
(30)calendar days of the date of execution of the Contract.This team will consist of a Company management representative
with Contract management responsibility,a Company sourcing representative with Contract management responsibility,and a
Contractor management representative with decision making and implementation authority for all areas of Contractor activity.
This group will meet as needed at Company or Contractor discretion to discuss outstanding business process and performance
issues.Any change in the general operational direction of Company or Contractor activity,forecast of Company resource
needs,or other future considerations shall be periodically reviewed and discussed by this group.
ARTICLE 43.SUPERINTENDENCEBY CONTRACTOR
Contractor shall have competent supervisory Personnel satisfactory to Company and with authority to act for
Contractor present at the Work Site at all times the Work is in progress.
Contractor will work with the Company's designated representative in coordinating and performing its Work.Failure of
Contractor to do so shall be considered a default under this Contract.However,in no event shall the Company's designated
representative have direction over means and methods used by Contractor in performance of the Work.
ARTICLE 44.USE OF PREMISES AND TRESPASS
Contractor shall confine the storage of materials and construction equipment to locations acceptable to Company and
in accordance with all applicable ordinances,regulations,or laws.Contractor shall provide adequate safety barriers,signs,
lanterns,and other warning devices and services to properly protect any person having access to or near the Work Site.
Contractor shall be solely responsible for any act of trespass or any damage to adjacent property resulting from or in
connection with its operations under this Contract.
Contractor agrees to abide by Company's Exhibit K,Part 9.No individuals,whether employees,Contractor,vendors,visitors
or guests,are allowed to smoke or use tobacco products on the premises of any Company facility or property,whether owned
or leased.This prohibition includes offices,field facilities,company vehicles and aircraft,garages,parking lots,lawns and
sidewalks.
ARTICLE 45.UNDERGROUND OBSTACLES
Contractor shall be responsible for ascertaining the location of and avoiding damage to all underground installations
including without limitation cable,gas,water pipes,telephone lines,and other underground installations,whether the location
of the excavation,digging,or trenching required for performance of the Work is fixed by Company or by Contractor.
Contractor shall comply with Blue Stake or One Call laws.
O
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Rocky Mountain Power
Exhibit No.52 Page 246 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
ARTICLE 46.COOPERATION WITH OTHERS
Contractor shall fully cooperate and coordinate with Company employees and other contractors who may be awarded
other work.Contractor shall not commit or permit any act,which will interfere with the performance of work by Company
employees or other contractors.
ARTICLE 47.CLEANUP
Contractor shall keep each Work Site,including storage areas used by it,free from accumulation of waste materials or
rubbish arising out of the Work,and prior to completion of the Work,shall remove and properly dispose of any such rubbish
from and about the Work Site,as well as remove all tools and equipment not property of Company.Upon completion of the
Work,Contractor shall leave each Work Site in a condition satisfactory to Company.In the event of Contractor's failure within
a reasonable time to comply with any of the foregoing,Company may,after written Notice to Contractor of such failure,
perform the cleanup and removal at the expense of Contractor.Contractor shall be responsible for the management and disposal
of wood waste generated at the Work Site as set forth in the attached Exhibit N.
ARTICLE 48.LIENS
Contractor shall:(i)indemnify,defend,and hold harmless Company from all laborers',materialmen's and mechanics'
liens or claims made or filed against Company or upon the Work or the property on which the Work is located on account of
any labor performed or labor,services,and Contractor-Furnished Materials provided by Subcontractors of any tier;and (ii)
keep the Work and said property free and clear of all liens or claims arising from the performance of any Work covered by this
Contract by Contractor,its Subcontractors of any tier.
If any lien arising out of this Contract is filed,before or after Work is completed,Contractor,within ten (10)calendar days after
receiving from Company written Notice of such lien,shall obtain release of or otherwise satisfy such lien.If Contractor fails to do
so,Company may take such steps and make such expenditures as in its discretion it deems advisable to obtain release of orOotherwisesatisfyanysuchlienorliens,and Contractor shall upon demand reimburse Company for all costs incurred and
expenditures made by Company in obtaining such release or satisfaction.If any non-payment claim is made directly against
Company arising out of non-payment to any Subcontractor,Contractor shall assume the defense of such claim within ten (10)
calendar days after receiving from Company written Notice of such claim.If Contractor fails to do so,Contractor shall upon
demand reimburse Company for all costs incurred and expenditures made by Company to satisfy such claim.
Contractor's obligation to indemnify,defend and hold harmless Company from liens and claims shall not in any way be rendered
unenforceable,or altered,amended,eliminated or otherwise conditioned by any laws and regulations related to processing such
liens.Company shall have no obligation to deliver a copy of any notice of claim or right to a lien to Contractor or any other person
or entity.
ARTICLE 49.CONFLICTS,ERRORS,OMISSIONS,OR DISCREPANCIES IN CONTRACT DOCUMENTS
Contractor shall advise Company in writing of all conflicts,errors,omissions,or discrepancies among the various
documents comprising this Contract immediately upon discovery and prior to Contractor's performing the affected Work.
Company shall resolve such conflicts and such resolution shall be final.Anything mentioned in the specifications and not
shown on the drawings,or shown on the drawings and not mentioned in the specifications,shall be considered as if shown or
mentioned in both.
ARTICLE 50.LIQUIDATED DAMAGES
The amount of liquidated damages shall be specified within each project bid package and imposed in its
corresponding Release.
If Contractor fails to perform the Work in accordance with the Project Guaranteed Dates specified in a Release,Company
will incur some degree of damages.The Parties expressly acknowledge and agree that it would be difficult or impossible to
determine with absolute precision the amount of damages that would be incurred by Company as a result of Contractor's
failure to perform the Work in accordance with the Project Guaranteed Dates.The Parties accordingly agree,having taken
into account all factors that they deem appropriate,including all of the respective rights and obligations under this Contract,
that liquidated damages are in lieu of actual damages and are the Parties'reasonable estimate of fair compensation for the
losses that are reasonably anticipated to be incurred by Company from Contractor's failure to timely perform in accordanceOwiththeContract,and do not constitute a penalty.The payment of liquidated damages (and,to the extent applicable,
termination of the Contract and/or Release by Company for default in accordance with the terms hereof)shall be Contractor's
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Rocky Mountain Power
Exhibit No.52 Page 247 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
sole and exclusive obligations and Company's sole and exclusive remedy with respect to the failure to timely perform in
accordance with the Project Guaranteed Dates set forth in the specified Release.The sole and exclusive remedy provision set
forth in this Article applies only to delay claims and not to any other damage claims Company may have under this Contract.
In the event that the provisions for the payment of liquidated damages as specified in a Release are held to be unenforceable
as a matter of law,Contractor shall be liable for all actual damages that may be available at law for late delivery,including
loss of profit or income,loss of use,loss or production,loss of contracts,incidental damages and consequential damages,but
subject to the maximum amounts which would have been payable if the liquidated damages provision had been enforceable.
WITH THE EXCEPTION OF CONSEQUENTIAL DAMAGES THAT ARE PERMITTED PURSUANT TO THE
SECOND PARAGRAPH OF THIS ARTICLE IN THE EVENT THAT LIQUIDATEDDAMAGES ARE HELD TO BE
UNENFORCEABLE AS A MATTER OF LAW,THE PARTIES WAIVE CLAIMS AGAINST EACH OTHER FOR
CONSEQUENTIAL DAMAGES ARISING UNDER OR RELATING TO THIS CONTRACT.
ARTICLE 51.PAYMENT BONDS
At Company's sole option to be exercised by the time of execution of a Release in accordance with this Contract,
Contractor shall furnish a Labor and Material Payment Bond with the penal sum of one-hundred (100)percent of the Release
price.The bond shall be issued concurrently with the execution of the Release and shall cover full and faithful performance
of all conditions and provisions hereunder,including the payment of all materials and labor incurred by Contractor in the
performance of the Release,including changed Work as provided in ARTICLE 19,CHANGES.Said bond shall be issued on
a form acceptable to Company.
ARTICLE 52.CLAIM NOTICE AND RESOLUTION PROCEDURE
In the event Contractor has a claim or request for a time extension,additional compensation,any other adjustment of
the Contract terms,(in which event notice will be provided on the form included as Exhibit W),Contractor shall provideOCompanywithNoticeofsuchClaimwithinfive(5)business days followingthe occurrence of the event giving rise to the
Claim.Contractor's failure to give Notice as required will constitute a waiver of all of Contractor's rights with respect to the
Claim.
As soon as practicable after Claim notification,Contractor shall submit the Claim to Company with all supporting information
and documentation.Contractor shall also respond promptly to all Company inquiries about the Claim and its basis.
Any Claim that is not disposed of by mutual agreement between the Parties shall be decided by Company,which shall provide
a written decision to Contractor.Such decision shall be final unless Contractor,within thirty (30)calendar days after such
receipt of Company's decision,provides to Company a written protest,stating clearly and in detail the basis thereof
Contractor's failure to protest Company's decision within that time period shall constitute a waiver by Contractor of its right to
dispute the decision.Even if a Claim arises,Contractor shall continue its performance of this Contract.
ARTICLE 53.SUSPENSION OF WORK
Company may,by written Notice,direct Contractor to suspend performance of any or all of the Work for a specified
period of time.Upon receipt of such Notice to suspend,Contractor shall:(i)discontinue the applicable Work;(ii)place no
further orders or subcontracts with respect to the suspended Work;(iii)suspend all orders and subcontracts with respect to the
suspended Work;(iv)protect and maintain the suspended Work;and (v)otherwise mitigate Company's costs and liabilities for
those areas of Work suspended.Company shall pay Contractor an equitable amount for incremental costs incurred by Contractor
as a result of the suspension;provided,however,that if the suspension is due to Contractor's failure to comply with the Contract,
no such payment shall be made.
ARTICLE 54.TERMINATION FOR CONVENIENCE
Company may terminate this Contract in whole or in part at any time without cause prior to its completion by sending
to Contractor written Notice of such termination.Upon such termination,Company shall pay to Contractor,in full satisfaction
and discharge of all liabilities and obligations owed Contractor,an equitable amount for all Work satisfactorily performed by
Contractor as of the date of termination,plus an equitable termination fee to address Subcontractor termination charges and other
out-of-pocket costs incurred by Contractor as the result of the termination provided that such costs cannot be reasonably mitigated.
O Company shall not be liable for anticipated profits based upon Work not yet performed.
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Rocky Mountain Power
Exhibit No.52 Page 248 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
ARTICLE 55.TERMINATION FOR CAUSE
1.For purposes ofthis Contract,a default by Contractor shall be the occurrence of any of the following:
a.A breach by Contractor of any of its material obligations under the Contract,if such breach continues uncured for a
period of seven (7)days after receipt of Notice from Company,unless Company agrees,in writing,to grant Contractor
an extension of such seven (7)day period for a period of time to be determined at Company's sole discretion.In such
circumstance,Company shall prescribe the new cure period in writing.For purposes of the Contract,a default by
Contractor shall be deemed to include,without limitation,Contractor's refusal or neglect to supply sufficient and
properly skilled Personnel,materials or Deliverables of the proper quality or quantity,or equipment necessary to
perform the Work described in the Contract properly,or Contractor's failure in any respect to prosecute the Work
described in the Contract or any part thereof with promptness,diligence and in accordance with all of the material
provisions hereof;
b.Contractor fails in any material respect to comply with any laws,ordinances or regulations pertaining to safety or
environmental compliance;
c.A determination that any representation,statement or warranty made by Contractor in this Contract,Release or any
other statement,report or document which Contractor is required to furnish to Company,was false or misleading in any
material respect;
d.The occurrence of any of the following:(i)the filing by or against Contractor of a proceeding under any bankruptcy or
similar law,unless such proceeding is dismissed within thirty (30)calendar days from the date of filing;(ii)the making
by Contractor of any assignment for the benefit of creditors;(iii)the filing by or against Contractor for a proceeding for
dissolution or liquidation,unless such proceeding is dismissed within thirty (30)calendar days from the date of filing;
(iv)the appointment of or the application for the appointment of a receiver,trustee or custodian for any material part of
O Contractor's assets unless such appointment is revoked or dismissed within thirty (30)calendar days from the date
thereof;(v)the attempt by Contractor to make any adjustment,settlement or extension of its debts with its creditors
generally;(vi)the insolvency of Contractor;or (vii)the filing or recording of a notice of lien or the issuance or the
obtaining of a levy of execution upon or against a material portion of Contractor's assets,unless such lien or levy of
execution is dissolved within thirty (30)calendar days from the date thereof;
e.A Material Adverse Change has occurred with respect to Contractor and Contractor fails to provide such performance
assurances as are reasonable requested by Company,including without limitation the posting of additional Default
Security pursuant to ARTICLE 11,DEFAULT SECURITY.
f.The Substantial Completion Date has not occurred on or before the date that is thirty (30)calendar days after the
Substantial Completion Guaranteed Date;
g.Failure to develop a reasonably acceptable Schedule Recovery Plan pursuant to ARTICLE 56,SCHEDULE;
h.Following approval of a Schedule Recovery Plan pursuant to ARTICLE 56,SCHEDULE Contractor's unexcused
failure to comply with the schedule set forth in the Schedule Recovery Plan (as determined from the revised Critical
Path Schedule established by the Schedule Recovery Plan);or
i.Contractor suspends or abandons the Work.
2.Upon the occurrence of a breach or material default specified in this Article,Company shall have the right to terminate this
Contract for cause.
3.Upon the occurrence of any such material default,followingthe applicable process described in this Article,Company
shall be entitled upon Notice to Contractor and without notice to Contractor's sureties and without limiting any of
Company's other rights or remedies,to terminate this Contract or to terminate Contractor's right to proceed with that
portion of the Work affected by any such material default and collect the Net Replacement Costs incurred to complete the
Work.
4.Upon termination of this Contract or any portion of this Contract upon a material default by Contractor,Company shall be
entitled to pursue any and all rights and remedies that it may have against Contractor under this Contract or at law or in
equity.
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Rocky Mountain Power
Exhibit No.52 Page 249 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
5.Upon receipt of any such Notice of termination of the entire Contract or of any right to proceed with any portion of theWorkfollowingtheapplicableprocessdescribedinthisArticle,Contractor shall,at its expense,for that portion of theWorkaffectedbyanysuchtermination:
a.Assist Company in making an inventory of all Contractor-Furnished Materials and Company-Furnished Materials in
storage at Contractor's facility,en route to Contractor's facility,in storage or manufacture elsewhere,en route to
Company and on order from the suppliers;
b.Assess the status of any Deliverables still due and preserve any Work performed;and
c.To the extent that they are assignable,assign to Company any and all subcontracts and equipment rental agreements as
designated in writingby Company.
6.In the event of such termination,Company may,for the purpose of completing the Work or enforcing these provisions,
take possession of all equipment,tools,appliances,documentation,software source media,flow charts,documents and
other Deliverables at Company's Work Site belonging to or under the control of Contractor,and may use them or may
finish the Work by whatever method it may deem expedient including:(i)Company may hire a replacement contractor or
contractors to complete the remaining Work that Contractor was otherwise obligated to complete under the Contract using
such form of agreement as Company may deem advisable;or (ii)Company may itself provide any labor or materials to
complete the Work.Contractor shall cooperate with and assist Company in attempting to acquire from Contractor's
Subcontractors the right to take possession of and use any and all proprietary materials in the event of such termination.
All proprietary materials of Contractor or Subcontractors shall remain subject to the provisions herein,and Company shall
not have any broader rights to use or disclose such proprietary materials as a result of such termination.Any software
embodying any of Contractor's proprietary materials shall also be subject to the provisions herein.In the event of such a
termination,Contractor shall not be entitled to receive any further payment until the Work is completed,and such amounts
may be offset against Company's Net Replacement Costs.
7.All rights and remedies provided in this Article are cumulative,and are not exclusive of any other rights or remedies that
may be available,whether provided by law,equity,statute,in any other agreement between the Parties or otherwise.Upon
the occurrence of any such default,followingthe applicable process described in this Article,Company shall be entitled to
pursue any and all other rights and remedies,including without limitation damages,that Company may have against
Contractor under this Contract or at law or in equity (provided,however that Company shall not be entitled to collect any
damages at law attributable to late delivery,performance or any other item for which this Contract specifically provides
liquidated damages as an exclusive remedy).
ARTICLE 56.SCHEDULE
For Releases issued in accordance with this Contract for which completion of the Work shall require thirty (30)calendar
days,or more,the Contractor shall submit,within seven (7)business days after the Release effective date and prior to the start of
the Work,a detailed bar chart type schedule for this Work.Contractor agrees to provide whatever management,administration,
and control of its own Work or the Work of its Subcontractor of any tier which may be required to insure completion of the Work
in accordance with this schedule.
Contractor shall perform and complete each segment of the Work in accordance with the schedule,unless otherwise approved in
writing by an authorized representative of the Company.
Contractor shall commence performance of the applicable Work upon execution by Company and Contractor of a
Release to be issued under the Contract.Each Release will include Project Guaranteed Dates.Contractor shall perform theWorkundereachReleaseinaccordancewiththeProjectGuaranteedDates.Time is of the essence with respect to the
performance by Contractor of its obligations hereunder.
Unless otherwise excused by the terms of this Contract,Contractor's failure to timely complete Work in accordance with the
Project Guaranteed Dates set forth in the applicable Release shall result in the assessment of liquidated damages as set forth
in ARTICLE 50,LIQUIDATED DAMAGES and at the rates and subject to the maximum liability caps set forth in the
applicable Release.In addition,Contractor's failure to timely complete Work in accordance with the Project Guaranteed
Dates may constitute,as provided in ARTICLE 55,TERMINATION FOR CAUSE,a Contractor event of default.
O Contractor shall develop (before or after the execution of a Release)and thereafter maintain and manage a comprehensive
Critical Path Schedule for Contractor's performance of the Work,which Critical Path Schedule shall meet the minimum
requirements of Exhibit U and be approved by Company.Utilizing the critical path method,Contractor shall continually be
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Exhibit No.52 Page 250 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
aware of factors that are delaying or that could delay the timely achievement of the Project Guaranteed Dates,and shall take
all remedial actions within its control to eliminate or minimize schedule delays,including overtime for the employees of
Contractor and Subcontractors and the assignment of additional Personnel and/or other resources.
Except as specifically excused pursuant to the terms of this Contract,if:(i)Contractor fails to comply with the schedule for
achieving Substantial Completion on or before the Substantial Completion Guaranteed Date,(ii)Contractor fails to timely
complete a Contractor Critical Milestone,or (iii)Company has reasonable cause to believe that Contractor's ability to meet
any of the critical path items on the Critical Path Schedule has been substantially impaired,dieri (in any of the above-
referenced events)Contractor shall,within ten (10)calendar days after Contractor becomes aware of such delay,or within ten
(10)calendar days after receiving written request from Company,submit for approval by Company,a written plan to
complete all necessary Work to achieve Substantial Completion by the Substantial Completion Guaranteed Date (the
"Schedule Recovery Plan").If Contractor does not believe it is reasonably possible to achieve Substantial Completion on or
before the Substantial Completion Guaranteed Date,then the Schedule Recovery Plan must demonstrate how Contractor will
complete all necessary Work to achieve Substantial Completion prior to the default deadline set forth in Section 55.l(f).
Contractor's failure to demonstrate its ability to achieve Substantial Completion prior to the default deadline set forth in
Section 54.1(f)shall constitute a Contractor Event of Default as set forth in Section 54.l(g).Within fifteen (15)calendar
days after receipt of the Schedule Recovery Plan,Company shall deliver Notice of approval or disapproval of the Schedule
Recovery Plan to Contractor,the approval thereof not to be unreasonably withheld.If Company disapproves all or any
portion of the Schedule Recovery Plan,Company shall approve those portions of the Schedule Recovery Plan that are
acceptable and provide comments to those portions of the Schedule Recovery Plan that have been disapproved.Contractor
shall then resubmit a revised Schedule Recovery Plan addressing such comments as shall have been provided by Company
within five (5)additional calendar days and,upon approval by Company,promptly proceed with such additional Work as
may be required under the Schedule Recovery Plan.Contractor's failure to develop a reasonably acceptable Schedule
Recovery Plan shall constitute a Contractor Event of Default as set forth in Section 54.l(g).Approval by Company of a
O Schedule Recovery Plan shall not be deemed in any way to have relieved Contractor of its obligations under the Contract
including,without limitation,Contractor's obligations to comply with the Project Guaranteed Dates.Approval by Company
of a Schedule Recovery Plan shall not be a basis for an increase in the Contract Price,or limit the rights of Company under
ARTICLE 50,LIQUIDATEDDAMAGES.Contractor's unexcused failure to comply with the revised Critical Path Schedule
established by the Schedule Recovery Plan shall constitute a Contractor event of default as set forth in Section 54.1(h).
ARTICLE 57.DELAYS
Force Majeure.Neither Party shall be liable for delays caused by a Force Majeure Event;provided,however,that both Parties
agree to seek to mitigate the potential impact of any such delay.Any delay attributable to a Force Majeure Event shall not be
the basis for a request for additional compensation.In the event of any such delay,the required completion date may be
extended for a reasonable period not exceeding the time actually lost by reason of the Force Majeure Event.The imposition of
any liquidated damages,if applicable,for performance or completion of the Work under a specific Release shall be extended by an
amount of time equivalent to the length of time of the Force Majeure Event.
Company-Caused Delay.If Contractor is actually delayed in its performance of the Work by the actions or omissions of
Company (excluding Company's good faith exercise of rights and remedies provided under the Contract),or by changes
ordered with respect to the Work,and if Contractor is able to prove that it has used all reasonable means to avoid or minimize
the effects of the delay,then Contractor's guaranteed completion dates shall be equitably adjusted to reflect the impacts of such
Company-caused delays.To the extent reasonably possible,Company may,at its discretion,and in lieu of granting an
extension of time,require Contractor to regain the schedule whereby Company shall compensate Contractor for all additional
costs reasonably incurred thereby.No adjustment under this Article shall be made for any delay to the extent that it is caused or
contributed to by Contractor or performance would have otherwise been delayed by any other cause,including the fault or
negligence of Contractor.
Contractor Caused Delays..In the event the Work is not delivered in accordance with and within the time specified in the
Release,and the failure to timely perform is in no way related to either a Force Majeure Event or Company-caused delay,
Contractor shall pay liquidated damages as indicated in ARTICLE 50,LIQUIDATEDDAMAGES.
Request for Time Extension.Any request for time extension or additional compensation shall be made in accordance with
ARTICLE 52,CLAIM NOTICE AND RESOLUTION PROCEDURE.
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Exhibit No.52 Page 251 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
If,at any time,Company determines the progress of the Work is unsatisfactory,Contractor may be directed to work overtime,
increase its workforce,work additional shifts,add supervision or take other corrective actions to ensure the timely and orderly
prosecution of the Work,at no additional cost to Company.
ARTICLE 58.SCHEDULED OUTAGES
Contractor shall coordinate with Company to schedule outages required for the completion of the Work.Company will
exert every reasonable effort to secure required outages during Contractor's normal work week schedule.Requests for outages
shall be given to Company with the greatest lead time possible,but not less than seventy-two (72)hours.
Contractor shall be aware that Company may not be able to guarantee the scheduled outages or duration of outages due to
unforeseen circumstances,severe weather,or system requirements.
Contractor shall plan its Work activities to keep each outage time to a minimum.Contractor shall perform as much
preliminary Work as possible before scheduling each outage.
ARTICLE 59.SITE INVESTIGATION
With respect to each project,Contractor will satisfy itself as to the nature and location of the Work,the general,local,
physical and other conditions of the Work,particularly those bearing upon transportation,access,disposal,handling and
storage of materials,availability and quality of labor,water,electric power,roads,uncertainties of weather,including flash
floods or similar physical conditions at the Work Site,the character of conditions on the ground,the character,quality and
quantity of surface and subsurface material to be encountered;the character of equipment and facilities needed preliminary to
and during the prosecution of the Work,and all other matters which could in any way affect the Work or the cost thereof under
this Contract.The failure of Contractor to,prior to the effective date of any Release,adequately investigate and acquaint itself
with the available information concerning these conditions and all other matters which could in any way affect the Work or the
cost thereof under this Contract shall not relieve Contractor from its responsibility for properly estimating the difficulties andOcostsofsuccessfullyperformingtheWorkandcompletingtheWorkasspecifiedinaReleaseunderthisContract,and shall not
be grounds for adjusting either the price or the schedule.Company assumes no responsibility for any understanding or
representation made by any of its officers or agents during or prior to the negotiations and execution of this Contract or any
Release.
ARTICLE 60.CHANGED CONDITIONS
Contractor shall immediately and before such physical conditions are disturbed,provide Notice to Company of:(i)subsurface
or latent physical conditions at any Work Site differingmaterially from those indicated in this Contract and the applicable
Release and which could not have been discovered pursuant to the site investigations for which Contractor is responsible under
ARTICLE 59,SITE INVESTIGATION;or (ii)unknown physical conditions at the Work Site,of an unusual nature,differing
materially from those ordinarily encountered and generally recognized as inherent in Work of the character provided for in this
Contract and the applicable Release and which could not have been discovered pursuant to the site investigations for which
Contractor is responsible under ARTICLE 59,SITE INVESTIGATION.Company will promptly investigate the conditions,
and if it finds that such conditions do materially differ and cause an increase or decrease in the cost of,or the time required for
performance of this Contract,an equitable adjustment shall be made and this Contract modified in writing accordingly.Any
claim by Contractor for adjustment hereunder shall be made pursuant to ARTICLE 52,CLAIM NOTICE AND RESOLUTION
PROCEDURE.
ARTICLE 61.CYBER SECURITY
I.OBJECTIVE AND SCOPE OF THIS ARTICLE
Managing supply chain cyber security risk requires Company's contractors and suppliers to meet minimum obligations to
maintain the integrity of Company's systems,facilities,and Confidential Information.This Cyber Security Article ("Article")
applies to any contractor or supplier (collectively,"Contractor"for purposes of this Article)(and its Personnel and
Subcontractors)that may store,process,or have access to Company's information systems,networks,services,or applications,
and may impact the integrity,availability,or confidentiality of Company's Confidential Information or systems for the term of
the Contract.
II.DEFINED TERMS
O "Confidential Information"shall have the meaning as defined in the Contract and in addition include any information that
identifies an individual or customer of Company,including but not limited to customer account numbers,customer addresses,
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Exhibit No.52 Page 252 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
customer energy usage information,credit or bank account numbers,social security numbers,passport or driver's license
numbers,or any information not otherwise classified as public information by Company.
"Data"shall mean any information,formulae,algorithms,or other content that the Company or the Company's employees,
agents and end users upload,create or modify using any software provided pursuant to the Contract.Data also includes user
identification information and metadata which may contain Data or from which the Company's Data may be ascertainable.
"Security Breach"shall mean any act or omission that compromises either the security,confidentiality,or integrity of
Company's Confidential Information,Data,systems and facilities or Company's physical,technical,administrative or
organizational safeguards and controls relating to the protection of Company's Confidential Information,Data,systems,and
facilities.
Any capitalized terms not otherwise defined herein shall have the meaning in the Contract.
III.COMPLIANCE WITH INDUSTRY BEST PRACTICESAND STANDARDS
Without limiting Contractor's obligations elsewhere in this Article or the Contract,Contractor shall implement baseline
security safeguards and controls to protect Company's Confidential Information,Data,and systems that are no less rigorous
than accepted industry practices,specifically those set forth in the latest published version of (i)National Institute of Standards
and Technology Special Publication 800-53,Recommended Security Controls for Federal Information Systems or (ii)ISO
27001-Information Security Management.
IV.INFORMATION AND SYSTEMS SECURITY PROGRAM
(a)Confidential Information.Contractor represents and warrants that its collection,access,use,storage,disposal,and
disclosure of Company's Confidential Information and Data does and will comply with all applicable federal and state privacy
and data protection laws,regulations,and directives.Contractor's safeguards shall include limiting access to Company
O systems and Confidential Information to Contractor's Personnel who have a "need to know"or otherwise access Company's
systems and Confidential Information to enable Contractor to perform Work or Services under the Contract.Articles of the
Contract,concerning (i)Contractor's Personnel and their access to Company's facilities and (ii)the handling of Confidential
Information,respectively,shall apply to this Article as applicable.These provisions included herein apply to all
Subcontractors to the extent and during such periods as they are in possession of Confidential Information or Data.
(b)Data and Information Security Program.Contractor shall develop a data and information security program that documents
the policies,standards,and controls in use,including organizational,administrative,technical,and physical safeguards and
standards.The data and information security program must be reasonably designed to achieve the objectives to:
(i)ensure the confidentiality,availability,and integrity of Company's Confidential Information;
(ii)protect against any anticipated threats or hazards to the confidentiality,availability,or integrity of such
information;and
(iii)protect against unauthorized access to or use of such information or information systems.
Contractor shall ensure that it produces and communicates a comprehensive,documented data and information security
program to all Personnel with access to Company's Confidential Information,Data,and systems.
(c)Information Systems Acquisition,Development and Maintenance.Contractor shall utilize a comprehensive application
security program to help ensure that applications are consistent with industry security requirements.This shall include full
application compliance testing and software development reviews.
(d)Vulnerability Testing and Remediation.Contractor shall ensure systems are regularly scanned for compliance with
industry security standards,and that any applicable detected vulnerabilities are remediated.Contractor shall ensure that
application security vulnerabilities are assessed for business risk and impact,and have a vulnerability remediation plan.
(e)Secure System Configuration.Contractor shall establish,implement,and actively manage (track,report on,and correct)the
security configuration of laptops,servers,and workstations using a rigorous configuration management and change control
process in order to prevent attackers from exploiting vulnerable services and settings.
O (f)System Patching.Contractor shall implement an effective software update management process to ensure the most
relevant,up-to-date,approved patches are installed for all authorized software.This process shall also include weighing the
benefit associated with installing a patch to resolve a vulnerability against other factors,including the potential impact to
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Exhibit No.52 Page 253 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
system stability.
(g)Security Review of Internal and External Applications.Contractor shall perform security reviews of applications
developed internally,as well as third party applications that process,store or transmit data.
(h)Application Security Awareness Program Content.Contractor shall ensure that the content of its application security
awareness program incorporates current and relevant security attacks and vulnerabilities mitigation.
(i)Disaster Recovery and Business Continuity.Contractor shall develop a comprehensive IT disaster recovery and business
continuity program and plan that is accessible by Company,supported by contingency arrangements,and tested periodically.
(j)Remote Access.Contractor shall follow all applicable Company requirements for all remote access to Company resources
and systems.To the extent Contractor's Personnel will have interactive remote access to Company's networks,systems or
applications,such access must be performed on a secure connection.Contractor shall utilize multi-factor authentication (e.g.,
two-factor or token)to provide an additional level of security for Contractor's Personnel with such access.Contractor shall
maintain an accurate record of Personnel or Subcontractors who will have remote access to Company resources and systems,
and the country of origin of individual remote access,and Contractor shall name its personnel and Subcontractors given remote
access to Company's systems.Company reserves the right to deny individual remote access connection at Company's sole
discretion.
V.SECURITY OF CONFIDENTIAL INFORMATION AND DATA
(a)Any Confidential Information and Data provided by Company to Contractor (electronically or otherwise)and used by the
Contractor directly or indirectly in the performance of this Contract shall remain at all times the confidential property of
Company.Contractor shall not use Confidential Information or Data,and shall not permit any Subcontractor to use
Confidential Information or Data,for any purpose other than the purpose of performing the Work or Services set forth in thisContracring
the term of the Contract,Contractor shall provide Company with Notice if Confidential Information or Data will be
physically located outside the United States at least forty-eight (48)hours in advance.
(c)Contractor shall be responsible for preserving the integrity (i.e.,completeness and accuracy)of,and preventing any
unauthorized access,corruption,loss,damage and/or destruction to,Confidential Information or Data.
VI.OVERSIGHT OF COMPLIANCE
Company reserves the right to conduct an assessment,audit,examination,or review of Contractor's security controls to
confirm Contractor's adherence to the terms of this Article,as well as any applicable laws,regulations,and industry standards,
not more than once per year or upon notification of any Security Breach or complaint regarding Contractor's privacy and
security practices.Company may elect to obtain the services of a third party to conduct this assessment,audit,examination,or
review on behalf of Company.Company shall give Contractor no less than thirty (30)calendar days'notice of its intent to
conduct such assessment,audit,examination,or review.As part of this assessment,audit,examination,or review,Company
may review all controls in Contractor's physical and/or technical environment in relation to all Confidential Information being
handled and/or services being provided pursuant to this Article.Contractor shall fully cooperate with such assessment by
providing access to knowledgeable personnel,physical premises,documentation,infrastructure,and application software that
processes,stores,or accesses Company's Confidential Information or systems pursuant to the Contract.Vendor grants the
Company the right to perform network-based vulnerability scans of any Internet-reachable websites or devices used for the
provision of services or support under the Contract.
VII.SECURITY BREACH PROCEDURES;EQUITABLERELIEF
(a)Contractor shall:
(i)provide Company with the name and contact information for any Personnel who shall serve as Contractor's
primary security contact and shall be available to assist Company twehty-four (24)hours per day,seven (7)days per
week as a contact in resolving obligations associated with a real or emerging Security Breach;
(ii)notify Company of a real or emerging Security Breach as soon as practicable,but no later than 24 hours after
Contractor becomes aware of it;and
(iii)notify Company of any real or emerging Security Breach by telephone at the followingnumber:(503)813-
5555.
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Exhibit No.52 Page 254 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
(b)Immediately following Contractor's notification to Company of a real or emerging Security Breach,the Parties shall
coordinate with each other to investigate such Security Breach.Contractor agrees to fully and promptly coordinate with
Company in Company's handling of the matter,including,without limitation:(i)assisting with any investigation;(ii)providing
Company with physical access to the facilities and operations affected;(iii)facilitating interviews with Contractor's Personnel
and other employees or agents involved in the matter;and (iv)making available all relevant records and other materials
required to comply with applicable law,regulation,industry standards,or otherwise reasonably required by Company.
(c)Contractor shall use best efforts to immediately remedy any real or emerging Security Breach and prevent any further
Security Breach at Contractor's expense in accordance with applicable privacy laws,regulations,and standards.Contractor
shall reimburse Company for actual reasonable costs incurred by Company in responding to,and mitigating damages caused
by,any real or emerging Security Breach,including all costs of notice and/or remediation pursuant to this section.In the event
of a Security Breach,Contractor shall promptly use its best efforts to prevent a recurrence of any such Security Breach.
(d)Contractor agrees that it shall not inform any third party of any Security Breach without first obtaining Company's prior
written consent other than to inform a complainant that the matter has been forwarded to Company's legal counsel.Further,
Company shall have the sole and exclusive right to determine:(i)whether notice of the Security Breach is to be provided to
any individuals,regulators,law enforcement agencies,consumer reporting agencies,or others as required by law or regulation,
or otherwise in Company's discretion;and (ii)the contents of such notice.
(e)Contractor shall fully cooperate at its own expense with Company in any litigation or other formal action deemed
reasonably necessary by Company to protect its rights relating to the use,disclosure,protection,and maintenance of its
Confidential Information and Data.
(f)Contractor shall follow the same notice procedures above as applicable if it becomes aware of any significant emerging
cyber security issues involvingany Subcontractors that may result in a Security Breach involvingthe Company.
O (g)Contractor acknowledges that any breach of Contractor's obligations set forth in this Article may cause Company
substantial irreparable harm for which monetary damages would not be adequate compensation and agrees that,in the event of
such a breach or threatened breach,Company is entitled to seek equitable relief,including a restraining order,injunctive relief,
specific performance and any other relief that may be available from any court,in addition to any other remedy to which
Company may be entitled at law or in equity.Such remedies shall not be deemed to be exclusive but shall be in addition to all
other available remedies at law or in equity,subject to any express exclusions or limitations in the Contract to the contrary.
VIII.MATERIAL BREACH OF CONTRACT
Contractor's failure to comply with any of the provisions in this Article is a material breach of the Contract;in such an instance
Company may terminate the Contract for cause in a manner consistent with this Contract.In such an event,Company may
terminate the Contract effective immediately upon written Notice to the Contractor without further liability or obligation to
Contractor notwithstanding any provision to the contrary in the Contract.
IX.NETWORK SECURITY &PRIVACY LIABILITY
If the Work or Services under the Contract involves the rendering of IT services including,but not limited to:software,
software or hardware or systems development or consulting services;internet/application services (e.g.,web hosting);
providing content;connections to systems,technology or network(s);or if Contractor in any way collects,obtains,maintains or
in any way accesses or uses Confidential Information or Data,then Contractor,and its Subcontractors,shall maintain Network
Security &Privacy Liability coverage,which can be included via evidenced endorsement to Professional Errors &Omissions
coverage,throughout the term of this Contact and for a period of two (2)years thereafter,with a minimum required limit of
$5,000,000 Each Claim.
X.CYBER INDEMNIFICATION
To the fullest extent permitted by the law,Contractor shall defend,indemnify,and hold harmless Company and Company's
affiliates,respective officers,directors,employees,agents,and successors (each an "Indemnitee")from and against all losses,
damages,liabilities,actions,judgments,interest,awards,penalties,fines,costs or expenses,including reasonable attorneys'
fees,arising out of or resulting from any third-party claim against any Indemnitee arising out of or resulting from Contractor's
action or omission that represents a failure to comply with any of its obligations under this Article
O
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Rocky Mountain Power
Exhibit No.52 Page 255 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
ARTICLE 62.USE OF PORTIONS OF THE WORK
Company may take possession of and use any portion of the Work performed by Contractor.Such action by Company
shall not be construed as constituting final acceptance and shall neither relieve Contractor of any of its responsibilities under
this Contract,nor act as a waiver by Company of any of the conditions hereof,provided that Contractor shall not be liable for
the cost of repairs or any rework made necessary as a result of such use.If such action increases the cost or delays the
completion of remaining portions of Work,Contractor shall be entitled to such extra compensation or extension of time,or
both,as Company may determine to be proper.
ARTICLE 63.HISTORICAL ARTIFACTS
In the event that any Native American relics or items with archaeological or historical value are discovered by
Contractor or any of its Subcontractors of any tier or any of their representatives or employees,Contractor shall leave said
items undisturbed and shall immediately notify Company and await its direction before proceeding with any Work in the
vicinity.Under no circumstances will Contractor take possession of any item discovered.
ARTICLE 64.COMPLIANCE WITH LAWS
Contractor shall at all times comply with all laws,statutes,regulations,rules,executive orders,ordinances,codes,
and standards applicable to Contractor's performance of the Work including,without limitation,those governing health and
safety,wages,hours,employment of minors,desegregation and employment discrimination,as each may be applicable to the
Work performed hereunder,and based on total anticipated dollar value of this Contract.Contractor further confirms that its
employees and the employees of all Subcontractors employed under the Contract may legally work in the United States.
Without limiting the generality of the foregoing,Contractor and any Subcontractors shall abide by the requirements of 41
CFR §§60-1.4(a),60-300.5(a)and 60-741.5(a).These regulations prohibit discrimination against qualified individuals based
O on their status as protected veterans or individuals with disabilities,and prohibit discrimination against all individuals based
on their race,color,religion,sex,sexual orientation,gender identity national origin or discussion of compensation.
Moreover,these regulations require that covered prime contractors and Subcontractors take affirmative action to employ and
advance in employment individuals without regard to race,color,religion,sex,sexual orientation,gender identity,national
origin,protected veteran status or disability.Contractor and any Subcontractors shall also abide by the requirements of
Executive Order 11246,as amended,to develop and maintain a written affirmative action program (AAP)and Executive
Orders 11625 and 13170 (utilization of disadvantaged business enterprises)and the Small Business Act.To the extent
applicable,the employee notice requirements set forth in 29 CFR Part 471,Appendix A to Subpart A,are hereby
incorporated by reference into this Contract.
Contractor shall indemnify,defend and hold harmless Company,its directors,officers,employees and agents from all losses,
costs and damages by reason of any violation thereof and from any liability,including without limitation fines,penalties and
other costs arising out of Contractor's failure to so comply.
ARTICLE 65.INDEPENDENT CONTRACTOR
Contractor is an independent contractor and all persons employed by Contractor in connection herewith shall be
employees of Contractor and not employees of Company in any respect.Contractor shall maintain complete control over
Contractor Personnel.
ARTICLE 66.RELEASE OF INFORMATION -ADVERTISING AND PROMOTION
Contractor shall not publish,release,disclose or announce to any member of the public,press,official body or any
other third party any information concerning this Contract and/or the Work,or any part thereof,without the express prior
written consent of Company,except as required by law.Neither the names of Company,nor the Work Site shall be used in any
advertising or other promotional context by Contractor without the express prior written consent of Company.
ARTICLE 67.CONFIDENTIAL INFORMATION;NONDISCLOSURE
Definition of Confidential Information.The term "Confidential Information"means:(i)proprietary information of Company;
(ii)information marked or designated by Company as confidential;(iii)BES Cyber System Information of Company;(iv)
information,whether or not in written form and whether or not designated as confidential,which is known to Contractor asObeingtreatedbyCompanyasconfidential;(v)information provided to Company by third parties which Company is obligated
to keep confidential (including but not limited to information relating to an identified or identifiable natural person,whether or
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Exhibit No.52 Page 256 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
not such information is publicly available);and (vi)information developed by Contractor in connection with the performance
of this Contract.
BES Cyber System Information.Confidential Information of Company labeled as BCSI shall be protected consistent with the
following requirements:(a)BCSI shall be protected at all times,either by appropriate storage or having it under the personal
observation and control of a person authorized to receive it;(b)each person who works with protected BCSI is personally
responsible for taking proper precautions to ensure that unauthorized persons do not gain access to it;(c)reasonable steps shall
be taken to minimize the risks of access to BCSI by unauthorized personnel (when not in use,BCSI shall be secured in a secure
container,such as a locked desk,file cabinet or facility where security is provided);(d)documents or material containing BCSI
may be reproduced to the minimum extent necessary,consistent with the need to carry out the Work,provided that the
reproduced material is marked and protected in the same manner as the original material;(e)material containing BCSI should
be disposed of through secured shredding receptacles or other secured document destruction methods;(f)BCSI shall be
transmitted only by the followingmeans:(i)hand delivery;(ii)United States first class,express,certified or registered mail,
bonded courier,or through secure electronic means;(iii)e-mail with encrypted file (such as,WinZip with password)(the
password should not be included in e-mail,but should be delivered by phone or in an unrelated e-mail not mentioning the
document name;password-protected Microsoft Office documents do not meet the encryption requirements);and (g)documents
or material containing BCSI shall be returned to Company or certified destroyed upon completion of the Work.
Nondisclosure.Contractor agrees that it will not disclose Confidential Information,directly or indirectly,under any
circumstances or by any means,to any third person without the express written consent of Company.
Nonuse.Contractor further agrees that it will not use Confidential Information except as may be necessary to perform the
Work called for by this Contract.
Protection.Confidential Information will be made available by Contractor to its employees only on a "need to know"basis
and only after notifying such employees of the confidential nature of the information and after having obligated them to theOnonuseandnondisclosureobligationsofthisContract.Contractor agrees to take all reasonable precautions to protect the
confidentiality of Confidential Information and,upon request by Company,to return to Company any documents which
contain or reflect such Confidential Information.
Federal Defend Trade Secrets Act.The Federal Defend Trade Secrets Act of 2016 provides immunity from civil or criminal
liability for any employee or contractor who discloses a trade secret "in confidence to a Federal,State,or local government
official,either directly or indirectly,or to an attorney"where the disclosure by the employee or contractor is "solely for the
purpose of reporting or investigating a suspected violation of law"or "is made in a complaint or other document filed in a lawsuit
or other proceeding,if such filing is made under seal."18 U.S.C.§1833(b).Nothing in this Contract is intended to conflict with
18 U.S.C.§1833(b)or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C.§1833(b).
Unless waived by Company,Contractor shall require its employees and Subcontractors of any tier to adhere to these confidential
information and nondisclosure terms.
ARTICLE 68.OWNERSHIP OF DESIGNS,DRAWINGS,AND WORK PRODUCT
All materials prepared or developed hereunder by Contractor or its employees,or Subcontractors or their employees
or agents,including documents,calculations,maps,sketches,designs,tracings,notes,reports,data,computer programs,
models and samples,shall become the property of Company when prepared,whether delivered to Company or not,and shall,
together with any materials furnished Contractor and its employees by Company hereunder,be delivered to Company upon
request,and,in any event,no later than 30 days upon termination or final acceptance of the Work.Contractor agrees that allWorkpreparedbyit,or its employees,agents or Subcontractors of any tier,or their employees,under this Contract which is
subject to protection under copyright laws constitutes "work made for hire,"all copyrights to which belong to Company.In any
event,Contractor assigns to Company all intellectual property rights in such Work whether by way of copyright,trade secret or
otherwise,and whether or not subject to protection by copyright laws.Contractor shall retain all rights to its preexisting
standard details,specifications,computer software or other intellectual property.Such preexisting materials are hereby licensed
to Company,through a fully paid perpetual license,for Company's own use for the Work that is the subject of this Contract to
the fullest extent necessary to accomplish the purposes of this Contract any future use,maintenance or repair of the Work.
ARTICLE 69.AS-BUILT DRAWINGS
O Contractor shall maintain a set of Contract drawings at the Work Site,with all changes or deviations from the original
drawings neatly marked hereon in a contrasting color,as well as prints of working drawings prepared by Contractor.This shall
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Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
be a separate set of drawings,not used for construction purposes,which shall be kept up-to-date daily as the job progresses and
shall be made available for inspection by Company at all times.This set of "as-builts"shall be delivered to Company no later
than 30 days at or prior to final completion.
ARTICLE 70.PATENT AND COPYRIGHT INDEMNITY
Contractor shall indemnify,defend,and hold harmless Company,its directors,officers,employees,and agents against
and from all claims,losses,costs,suits,judgments,damages,and expenses,including attorneys'fees,of any kind or nature
whatsoever on account of infringement of any patent,copyrighted or uncopyrighted work,including claims thereof pertaining to
or arising from Contractor's performance under this Contract.If notified promptly in writing and given authority,information
and assistance,and contingent upon Company not taking any position adverse to Contractor in connection with such claim,
Contractor shall defend,or may settle at its expense,any suit or proceeding against Company so far as based on a claimed
infringement which would result in a breach of this warranty and Contractor shall pay all damages and costs awarded therein
against Company due to such breach.
In case any Contractor-Furnished Materials,products,services or combination thereof are in such suit held to constitute such
an infringement and the use of said Contractor-Furnished Materials,products or services is enjoined,Contractor shall,at its
expense and through mutual agreement between Company and Contractor,either procure for Company the right to continue
using said Contractor-Furnished Materials,products or services or replace same with non-infringing Contractor-Furnished
Materials,products or services.
ARTICLE 71.NONEXCLUSIVE RIGHTS
Nothing in this Contract is to be construed as granting to Contractor an exclusive right to provide any or all of the
Work anticipated herein.The use of Contractor's services is completely discretionary with Company.This Contract shall not
be construed in any way to impose a duty upon Company to use Contractor.
ARTICLE 72.ESTIMATED REQUIREMENTS
This Contract is not a commitment for a specific quantity of Work to be performed during a given period of time,or in
any given geographical area.There shall be no commitment by Company to Contractor of either a specific quantity of Work to
be performed,or of financial expectations to be realized under this Contract.
ARTICLE 73.ASSIGNMENT
Contractor shall not assign this Contract or any part hereof,or any rights or responsibilities hereunder without the
prior written consent of Company,and any attempted assignment in violation hereof shall be void.
ARTICLE 74.SUBCONTRACTS
Contractor shall not subcontract any or all of the Work without prior written consent of Company which shall not be
unreasonably withheld.Contractor shall be fully responsible for the acts or omissions of any Subcontractors of any tier and of
all persons employed by them,shall maintain complete control over all such Subcontractors,and neither the consent by
Company,nor anything contained herein,shall be deemed to create any contractual relation between the Subcontractor of any
tier and Company.
ARTICLE 75.NONWAIVER
The failure of Company to insist upon or enforce strict performance by Contractor of any of the terms of this Contract,
or to exercise any rights herein shall not be construed as a waiver or relinquishment to any extent of Company's right to
enforce such terms or rights on any future occasion.
ARTICLE 76.SEVERABILITY
Any provision of this Contract prohibited or rendered unenforceable by operation of law shall be ineffective only to
the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Contract.
ARTICLE 77.APPLICABLE LAW AND VENUE
This Contract shall be interpreted in accordance with the substantive and procedural laws of the state in which the projectOWorkSiteislocated(or,for Releases providing construction extending across state lines,the state in which the majority of the
Work Site is located),as designated in the applicable Release for such project.Any litigation between the Parties arising out of or
relating to this Contract will be conducted exclusively in appropriate federal or state courts of such state,and Contractor consents
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Exhibit No.52 Page 258 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vall
Contract No.
to jurisdiction by such courts.TO THE FULLEST EXTENT PERMITTED BY LAW,EACH OF THE PARTIES HERETOWAIVESANYRIGHTITMAYHAVETOATRIALBYJURYINRESPECTOFLITIGATIONDIRECTLYOR
INDIRECTLY ARISING OUT OF,UNDER OR IN CONNECTION WITH THIS CONTRACT.EACH PARTY FURTHERWAIVESANYRIGHTTOCONSOLIDATEANYACTIONINWHICHAJURYTRIALHASBEENWAIVEDWITHANY
OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
FOR WORK PERFORMED IN CALIFORNIA,THE FOLLOWING JURY TRIAL WAIVER AND ARBITRATION
PROVISION APPLIES.TO THE FULLEST EXTENT PERMITTED BY LAW,EACH OF THE PARTIES HERETO
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF,UNDER OR IN CONNECTION WITH THIS CONTRACT.EACH PARTY FURTHER
WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED.IF A WAIVER OF JURY TRIAL IS DEEMED BY ANY COURT OF COMPETENTJURISDICTION TO NOT BE
ENFORCEABLE FOR ANY REASON,THEN TO THE FULLEST EXTENT PERMITTED BY LAW,EACH OF THE
PARTIES HERETO AGREE TO BINDING ARBITRATION.SUCH ARBITRATION SHALL BE IN ACCORDANCE WITH
THE RULES AND PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION (AAA).NOTWITHSTANDING
ANY AAA RULES AND PROCEDURES,OR ANY OTHER PROVISION OF ANY STATE OR FEDERAL LAWS,THEPARTIESAGREETHATTHEARBITRATORSSHALLNOTCONSIDERORAWARDPUNITIVEDAMAGESASAREMEDY.UPON THE COMPANY'S REQUEST,AAA SHALL PROVIDE THE PARTIES A LIST OF ARBITRATORSEACHOFWHOMHAVEEXPERIENCEANDEXPERTISEAPPLICABLETOTHEWORK.UPON EACH OF THEPARTIES'RECEIPT OF SUCH LISTS,EACH PARTY SHALL HAVE TEN (10)DAYS TO SELECT AN ARBITRATOR.
THE TWO SELECTED ARBITRATORS SHALL THEN SELECT A THIRD ARBITRATOR WITHIN THIRTY (30)DAYS
FROM THE DATE THE INITIAL TWO ARBITRATORS WERE SELECTED AND THE MATTER SUBJECT TO
ARBITRATION SHALL BE ARBITRATED AND A DECISION OF THE ARBITRATORS ISSUED WITHIN SIXTY (60)
DAYS AFTER THE SELECTION OF THE THIRD ARBITRATOR.
ARTICLE 78.BUY AMERICA CLAUSE
To the extent that a Release or the Scope of Work for a Release indicates that the Contractor-Furnished Materials must
meet "Buy America"requirements,then Contractor shall be responsible for ensuring that applicable Contractor-Furnished
Materials comply with 23 USC §313 and/or 23 CFR 635.410.Without limiting the foregoing,Contractor shall furnish a signed
certification (the "Buy America Certification")in conjunction with the below-specified Contractor-Furnished Materials.The
Buy America Certification shall be in the format of,and according to the specific instructions set forth in,the attached Exhibit
P.Such obligation shall include,without limitation,providing all supplemental and supporting documentation identified in the
instructions to the Buy America Certification.A Buy America Certification is required only for the followingspecific items of
Contractor-Furnished Materials (as applicable to the Release):(i)steel transmission or distribution pole structures (exclusive
of any cross arms,guy wires and anchors,transformers,insulators,cutouts,surge arrestors,switches,hardware,fasteners,
brackets,base plate,conductor or other separately-provided attachments to be ordered separately and thereafter affixed to the
poles structures);(ii)steel or iron conduit and risers;(iii)steel rebar to be furnished in conjunction with:concrete foundations,
concrete transmission or distribution pole structures,or any pre-fabricated concrete vaults or similar concrete structures;(iv)
grates and covers for utility vaults and similar structures;and (v)steel culverts.Electronic copies of all required Buy America
Certifications shall be emailed to [e-mail] prior to installation of the Contractor-Furnished Materials.
Hard copies of all required Buy America Certifications shall be delivered in accordance with the instructions specified in the
applicable Release or Scope of Work.Contractor's performance in accordance with the requirements and timetables set forth
above is a condition precedent to the payment for the Contractor-Furnished Materials identified above.Contractor shall
itemize in writingany project pricing impacts incurred with respect to the Release as a result of Contractor's compliance with
this Article.
ARTICLE 79.ENTIRE CONTRACT;DOCUMENTS INCORPORATED BY REFERENCE
This Contract,including any referenced exhibits and attachments,and the Release constitute the complete agreement
between the Parties with respect to any transaction.All understandings,representations,warranties and agreements,if any,
existing between the Parties regarding the subject matter hereof are merged into and superseded by this Contract,which fully
and completely expresses the agreement of the Parties with respect to the subject matter hereof.Any Scope of Work,
specifications,drawings,schedules or other documents listed in this Contract are incorporated by reference into this Contract.
O In the event of a conflict between any Scope of Work,specifications,drawings,schedules or other attachment or exhibit to this
Contract and the above terms and conditions of this Contract,the above terms and conditions of this Contract shall take
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Exhibit No.52 Page 259 of 259
Case No.PAC-E-17-07
Witness:Rick A.Vail
Contract No.
precedence and control.In the event of a conflict between the terms and conditions of this Contract and the terms and
conditions of any Release,the terms of the Release shall take precedence and control.
Company assumes no responsibility for any understanding or representation made by any of its employees,officers or agents
during or prior to the negotiations and execution of this Contract,unless such understanding or representation is expressly
stated in the Contract.
ARTICLE 80.EXECUTION AND EFFECTIVE DATE
This Contract has been executed by duly authorized representatives of the Parties and shall be effective as of date of
execution by Company.
CONTRACTOR:COMPANY:
PacifiCorp
By:By:
(Signature)(Signature)
Name:Name:
(Type or Print)(Type or Print)
Title:Title:
(Date Executed)(Date Executed)
O
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